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EXHIBIT 10.16
AGREEMENT FOR ELECTRONIC MANUFACTURING SERVICES
THIS AGREEMENT made as of this 8 day of April 2000 between GVC Corporation,
having offices at Xx. 00, Xxxx-Xx 0xx Xxxxxx, Xxxx Xxxx 333, Taoyuan Hsian, in
Taiwan, R.O.C. ("Supplier") and NOVATEL WIRELESS INC., having offices at Suite
110, 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, X.X.X. 00000 ("Customer").
FOR AND IN CONSIDERATION of the mutual covenants of the parties hereto, the
parties hereby agree as follows:
ARTICLE I
TERM
1.1 This Agreement shall be in effect for a term of twenty-four (24)
months, commencing upon the date of this Agreement (the "Term"). Unless the
parties agree in writing to extend such Term for an additional period prior to
the termination of the Term, this Agreement shall terminate upon the expiry of
the said Term.
ARTICLE II
SCOPE OF SERVICES
2.1 Customer hereby retains Supplier and Supplier hereby agrees to
provide to Customer during the Term manufacturing and delivery services in
respect of electronic products or assemblies, as more particularly identified in
Exhibit "A" hereto (collectively, the "Products") in accordance with Exhibit B,
Costed Xxxx of Materials. Supplier and Customer shall mutually agree in writing
upon the delivery schedule(s) applicable to the Products.
2.2 Supplier shall purchase all components necessary for the manufacture
of the Products in accordance with an approved vendor list ("AVL") provided by
Customer and approved by Supplier and Customer. The current AVL is attached as
Exhibit C hereto. The AVL will change from time to time, and Customer will
provide Supplier with a copy of the current AVL as it becomes available. In the
event Supplier cannot purchase a component from a vendor on the AVL for any
reason, Supplier may purchase such components from an alternate vendor, subject
to the prior written consent of Customer, which consent shall not be unduly
withheld or delayed.
ARTICLE III
PLANNING AND PROCUREMENT PROCESS
3.1 Upon the date of execution of this Agreement and thereafter on the
first business day of each month of the Term, except for the last three (3)
months of the Term, Customer shall provide Supplier with firm purchase orders
covering a minimum period of three (3) months (each, a "Purchase Order").
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.2 Upon the dates on which Customer provides Supplier with the Purchase
Orders pursuant to Section 3.1, Customer also shall deliver to Supplier a
forecast (each, a "Forecast") covering the nine (9) month period immediately
following the applicable three (3) month Purchase Order period. It is understood
that each Forecast is delivered by Customer to Supplier for information purposes
only and cannot be relied upon by Supplier. Each Forecast is limited in
accordance with Article 4 below.
3.3 Upon the basis of the Purchase Orders and Forecasts referred to in
Sections 3.1 and 3.2, Supplier shall develop and deliver to Customer a master
production schedule ("MPS") for a twelve (12) month period as follows:
(a) the MPS will define the master plan upon which Supplier will
base it's procurement activities, internal capacity projections and commitments
to Customer hereunder;
(b) Supplier will use the Purchase Orders referred to in Section
3.1 to generate the *** of the MPS; and
(c) Supplier will use the Forecasts referred to in Section 3.2 to
generate the *** of the MPS.
The current Supplier MPS will be provided to the Customer the first working day
of every month during the term of this Agreement.
3.4 Supplier will develop the MPS through industry-standard MRP software
that will convert the MPS reflecting Customer's Purchase Orders and Forecasts
into requirements for the components to develop the necessary Products. In so
developing the MPS, Supplier will allow for the following times required to
develop the Products:
(a) in-Circuit Testing/Functional Testing - ***;
(b) Assembly - ***;
(c) Kitting - ***;
(d) Material Handling - ***.
Supplier shall plan and schedule for materials to be at it's facilities ***
before the Products are due to be delivered to Customer, with respect to
Products where no testing is required, and *** before the Products are due to
Customer, with respect to Products where testing is required. Supplier will also
provide to Customer on a weekly basis a detailed production plan showing the
schedule for all Products for the next 4 week period ("Production Plan"). The
Production Plan shall show the Customer Part number, the quantity of Products to
be built on a daily basis and the expected production output and yield on a
daily basis.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.5 Supplier will place orders to suppliers of components within a
reasonable period prior to the anticipated date that the same are needed and in
accordance with the provisions of Section 3.4. On the first working day of each
month, Supplier will provide to Customer the current lead-times by part number
for all parts used in the Customer assemblies. Through its "MRP System",
Supplier will issue an instruction ("MRP Signal") to its procurement department
to purchase or procure a component approximately seven (7) days before it places
an order with materials suppliers in accordance with this Section 3.5.
3.6 When Supplier places an order with component suppliers pursuant to
Section 3.5, it will order components in various quantities (defined in
periods-worth-of-supply) as defined by the "ABC Classification" for each
component (the "Classification"). The Classification, together with the expected
distribution or characteristics of various classes of components, and the
applicable periods-worth-of-supply ("Periods-of-Supply") that will be bought for
each class of component is shown on the table below:
ABC Classifications, Descriptions and Periods-of-Supply
----------------------------- --------------------------- -------------------------- -------------------
Part Class Expected Percentage of Expected Percentage of Periods Worth of
Total Components Total Value (of Gross Supply to be
Requirements) Bought with Each
Order
----------------------------- --------------------------- -------------------------- -------------------
A *** *** ***
----------------------------- --------------------------- -------------------------- -------------------
B *** *** ***
----------------------------- --------------------------- -------------------------- -------------------
C *** *** ***
----------------------------- --------------------------- -------------------------- -------------------
On the first working date of every month, Supplier will provide a report to
Customer detailing the quantity and financial exposure on all customer unique
components on hand at Supplier or on order.
3.7 In addition to ordering components for various Periods-of-Supply,
Supplier will order components according to various minimum-buy quantities, tape
and reel quantities, and multiples of packaging quantities.
3.8 Notwithstanding any provision hereof, Customer shall be liable for
any and all taxes, customs duties, withholding, assessments or levies arising
from time to time or at any time in respect of the services provided by Supplier
to Customer pursuant to and in respect of the transfer, sale, delivery and use
of the Products, save and except that Supplier shall be responsible for any and
all taxes arising on or measured by its net income or gain.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ARTICLE IV
LIABILITIES FOR COMPONENTS
4.1 In the event of cancellation or decrease in a Purchase Order pursuant
to Section 5.2, Customer's liability for costs of components that Supplier has
procured pursuant hereto, is as follows-
(a) For costs of components that Supplier has ordered pursuant to
a Purchase Order and cannot cancel prior to receipt (including components that
may not be cancelable by virtue of having insufficient time between the MRP
Signal to cancel and the expected or real receipt date by Supplier);
(b) For Supplier's costs of components that Supplier has ordered
pursuant hereto and cannot return to the suppliers where the lead time in
ordering such components is at least three months, and where Supplier has made
reasonable efforts to return the components; and
(c) In the event Supplier can use any such excess components for
any of Supplier's other customers, then Customer will be released from any
liability for such components. In the event Supplier is able to return
components by paying re-stocking fees or other fees, Customer shall be
responsible for any such fees.
4.2 With Customer's prior written consent (not to be unreasonably
withheld or delayed), Supplier shall purchase tools that it may require in order
to fulfill the Purchase Orders and Forecasts. The costs of same shall be borne
by Customer. Title in and to all such tooling purchased by Supplier shall vest
in Customer, and Supplier shall deliver to Customer possession of such tooling
in the same condition as when received by Supplier (ordinary wear and tear
excepted) upon the earlier of the completion of the relevant Purchase Order or
the termination of this Agreement.
ARTICLE V
RESCHEDULING
5.1 Customer at any time may reschedule the delivery dates of any of the
Products, subject to the following:
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WRITTEN NOTICE BY CUSTOMER PERCENTAGE OF ORIGINAL QUANTITY
TO SUPPLIER PRIOR TO ORIGINAL OF PRODUCTS THAT CAN BE RESCHEDULED
DELIVERY DATE FOR DELIVERY
------------- ------------
*** ***
*** ***
*** ***
*** ***
As an example, if Customer notifies Supplier in writing between *** prior to the
scheduled delivery date of the Products, a *** of the total amount of the
Products to be delivered on such date may be rescheduled for delivery by
Supplier.
5.2 In the event Customer shall require decreased quantities of Products
from those originally scheduled for delivery at a specific date, Supplier and
Customer, each acting reasonably and in good faith, shall agree upon a
rescheduled delivery date for the decreased quantities of Products within
forth-five (45) days of the original delivery date.
5.3 In the event Customer shall require an increase of quantities of
Products in excess of that originally scheduled for delivery at a specific date,
then Customer shall notify Supplier in writing at least thirty (30) days prior
to the original scheduled delivery date and Supplier, on a reasonable commercial
efforts basis, will attempt to accommodate such increase.
5.4 If the Customer changes the delivery dates of any Product by a period
exceeding ninety (90) days in the aggregate, and if such change results in
additional expenses to Supplier to store such Products or to acquire additional
components, such additional expenses shall be borne by Customer.
ARTICLE VI
REVISIONS
6.1 In the event Customer requests an engineering change to a Product,
which change shall be requested within a reasonable period prior to scheduled
delivery, Supplier shall notify Customer of any impact on the costs and/or
scheduled delivery of such Products, and also regarding whether any ordered
components are rendered obsolete, within five (5) business days of the receipt
of Customer's request. Unless Customer consents to such revisions of costs
and/or delivery by notice in writing within two (2) business days of receipt of
Supplier's notification, the requested engineering change shall be deemed
cancelled. Any increases in the costs of Products resulting from any such
engineering change order ("ECO") shall be borne by Customer. Any decreases in
the costs of Products resulting from any such engineering change order shall
result in a commensurate price reduction by Supplier. The costs of components
made obsolete or components purchased by Supplier in excess as a result of any
such ECO shall be borne by
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Customer. A USD. *** administrative fee per ECO also shall be borne by
Customer to partially cover Supplier's costs in processing the ECO. Upon
approval of the ECO the Supplier will make the changes in the Supplier's
business system within one week.
ARTICLE VII
CANCELLATIONS
7.1 Customer may cancel any Purchase Order by notifying Supplier in
writing at least ninety (90) days prior to the scheduled delivery date. Within
thirty (30) days of such cancellation, Supplier shall provide Customer with a
written calculation of Customer's total costs related to such cancelled order by
Customer part number. After review the Customer shall pay such costs deemed fair
and reasonable to Supplier within thirty (30) days of the receipt of such
calculation. Upon receipt of payment for same, Supplier shall deliver to
Customer, at Customer's expense, any components purchased but unused as a result
of such cancellation or shall scrap such components, at the direction of the
Customer as specified in the cancellation notice.
ARTICLE VIII
PRICING AND DELIVERY
8.1 The prices for the Products manufactured and delivered by Supplier
pursuant hereto are set forth in Exhibit "A" hereto and shall remain fixed for
the Term, with the following exceptions:
(a) in respect of an ECO, the provisions of Section 6.1 shall
apply;
(b) in respect of any rescheduling of delivery, the terms of
Article 5 shall apply;
(c) material variations on the market prices of components shall
be applied to all Products' prices, provided Customer approves any such purchase
price variations in writing in advance of Supplier procuring the components; and
(d) the parties intend, pursuant to Section 8.2, below, to reduce
costs by at least 5% during each quarter, and thus any prices paid
for Products by Customer shall be reduced accordingly as costs are
reduced.
8.2 Quarterly Cost Reviews
Supplier and Customer shall meet quarterly, starting three (3) months after the
date of this Agreement, to review the materials and process costs of the
Products. Where differences greater than *** of the Product price shown
in Exhibit A are achievable, Supplier and Customer agree to adjust the price
effective on the date that the changes are (or will be) implemented. Supplier
will strive to achieve a cost reduction of *** calendar quarter during the
term of this Agreement, starting at the end of the 2nd quarter from
the date this agreement becomes effective.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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8.3 Delivery
(a) Supplier will deliver Products on time, defined as shipment
according to the delivery dates Supplier commits; or if Supplier has not made a
specific commitment, to the date(s) identified on the Purchase Order within a
window of five (5) business days early and two (2) business days late.
(b) Delivery of all Products by Supplier to Customer shall be
F.O.B. Supplier's plant located at the address specified in Exhibit "A"
("Delivery Point"), at which location risk of loss and title to the Products
shall be transferred by Supplier to Customer. Products held or stored by
Supplier at the Delivery Point or any other location after the scheduled or
rescheduled delivery date of such Product, shall be held or stored at the sole
risk and expense of Customer.
(c) Unless otherwise specified by Customer, Supplier shall
transport the Products to Customer by such mode or modes of transportation as
Supplier reasonably determines, to Customer's address or an address specified in
writing by Customer. All packaging, freight, insurance and other shipping
expenses from the Delivery Point shall be borne by Customer. When special
packaging is requested or, in the reasonable opinion of Supplier, is required,
the additional costs related to such special packaging shall also be borne by
Customer.
ARTICLE IX
PAYMENT AND INVOICING
9.1 Payment terms will be *** from each invoice date. Any and all overdue
payments over *** shall bear interest at the rate of *** until paid in full.
ARTICLE X
WARRANTY
10.1 Supplier expressly warrants that each Product (excluding components
purchased from third-party vendors ("Vendor Components") shall be free from any
defects in workmanship for a period of one (1) year from the date of manufacture
of such Product by Supplier. Warranties on any Vendor Components are limited to
the warranties provided by the component manufacturers or Vendors. Supplier will
use reasonable commercial efforts to make all warranties of its component
suppliers assignable to Customer. Supplier shall pass on any unexpired
assignable warranties for any such Vendor Components to Customer until the
expiration of such warranties or up to a maximum of one year from the date of
manufacture of the Product by Supplier, whichever period is lesser. Warranty
coverage does not include failures due to Customer design errors, improper or
defective parts or materials used by Customer, and damages caused by Customer's
misuse, unauthorized repair or negligence. The performance of any repair or
replacement by Supplier does not extend the warranty period for any Products
beyond the period applicable to the Product as originally delivered pursuant
hereto.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ARTICLE XI
GENERAL INDEMNTTY
11.1 Customer hereby indemnifies and saves harmless Supplier, its parent
and affiliate corporations and their respective directors, officers, employees,
agents and servants from and against any and all actions, claims, losses, costs,
liabilities or expenses (including court costs and the fees and costs of
attorneys and other professionals) ("Claims") to the extent arising out of (A)
infringements of any patents, trademarks, copyrights or other intellectual
property by the Products or (B) any negligence or willful misconduct in respect
of the Products by Customer, its employees, agents and subcontractors, including
but not limited to any such act or omission that contributes to: (i) any bodily
injury, sickness, disease or death; (ii) any injury or destruction to tangible
or intangible property of the injured party or any loss of use resulting
therefrom; or (iii) any violation of any statute, ordinance or regulation.
11.2 Supplier hereby indemnifies and saves harmless Customer, its parent
and affiliate corporations and their directors, officers, employees, from and
against any and all actions, claims, losses, costs, liabilities or expenses
(including court costs and the fees and costs of attorneys and other
professionals)("Claims") to the extent arising out of (A) infringements of any
patents, trademarks, copyrights or other intellectual property by the Products
(except to the extent such infringement for a design or material claim result
from a defect in a specification submitted and/or instructed by Customer) or (B)
any negligence or willful misconduct in the manufacture of the Products (except
to the extent such damages result from a defect in a specification submitted
and/or instructed by Customer) by Supplier, its employees, agents and
subcontractors, including but not limited to any such act or omission that
contributes to: (i) bodily injury, sickness, disease or death; (ii) any injury
or destruction to tangible or intangible property-of the injured party or any
loss of use resulting therefrom; or (iii) any violation of any statute,
ordinance or regulation.
11.3 The total liability, if any, of Supplier, including but not limited
to liability arising out of contract, tort, breach of warranty, infringement or
otherwise, shall not in any event exceed the purchase price paid by Customer for
the Products. The Customer hereby acknowledges that the mutual covenants and
agreements set forth in this Agreement reflect this allocation of risk.
ARTICLE XII
EVIDENCE OF QUALITY, INSPECTION AND REPORTING
12.1 Customer has the right at all reasonable times, upon reasonable
advance written notice, to visit Supplier's facilities and the Delivery Location
to inspect the work being performed on the Products pursuant hereto, provided
such inspection shall not unduly affect Supplier's operations and provided
Customer and its representatives shall be on Supplier's facilities and the
Delivery Location at Customer's sole risk. Inspection of the work by Customer
shall not relieve Supplier of any of its obligations under the Agreement or the
Purchase Orders. Supplier shall provide Customer with all mutually agreed upon
quality reports at agreed upon intervals. Supplier reserves the right to limit
Customer's access to its facilities or any specified area to protect
confidential information of Supplier or its other customers or third parties.
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12.2 If Customer requests inspection of the Products prior to the
delivery of such Products as a condition of acceptance of such Products,
Customer shall inspect the Products within seventy-two (72) hours of
transmission of written notice by facsimile from Supplier informing Customer
that the Products are ready to be shipped. If Customer does not inspect the
Products within such seventy-two (72) hour period, Customer shall be deemed to
have waived its rights to inspect the Products as a condition of acceptance of
such Products.
12.3 Customer and Supplier working jointly will implement a joint quality
improvement program to improve quality and to reduce costs for Products.
12.4 Supplier shall manufacture the Customer's products in accordance to
an industry workmanship standard, agreed to by both parties. Unless otherwise
specified by the Customer, Supplier will manufacture the Customer's products as
per ANSI/IPC-A-610 Revision B "Acceptability Of Electronic Assemblies", Class 2
"Dedicated Service Electronic Products".
12.5 If product manufactured by Supplier is tested using equipment and
fixtures supplied by the Customer, the Supplier will be responsible to ensure
that the equipment and fixtures have been calibrated and maintained at a regular
interval as recommended by the manufacturer, and that the equipment and fixtures
are in proper operating condition. Calibration of equipment is to be performed
by qualified, licensed individuals and with equipment traceable to National
Standards.
12.6 Supplier is responsible for assuring that Products are delivered to
Customer only after Products successfully complete the specified inspection and
test processes. If the Product is being tested using equipment, fixtures, and/or
software provided by the Customer, Supplier is not responsible for product
functionality beyond that assured by the Customer provided test processes.
Product testing is to be performed in accordance to product specifications and
test procedures, which will be mutually agreed upon by Supplier and Customer.
12.7 Supplier is responsible to provide the following reports for each
shipment of Product:
(a) Defects per Million ("DPM") or Parts per Million ("PPM") for
in-circuit test when performed;
(b) DPM or PPM for each functional test performed;
(c) Statistical control charts for each of the key processes as
identified by Customer from time to time, as agreed to by Supplier, such
agreement not to be unreasonably withheld, and
(d) Details concerning all test failures and their root causes.
12.8 Supplier shall maintain a data acquisition system for all test data
collected and will allow Customer to access such system at Customer's request.
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12.9 Supplier shall allow Customer to access Supplier's management system
to retrieve such data that is needed for Customer to obtain information
concerning material procurement activities, progresses in work in process, and
process yield.
ARTICLE XIII
TERMINATION
13.1 If either party fails to meet one or more of the terms and
conditions as stated in this Agreement or addenda, Supplier and Customer agree
to negotiate in good faith to resolve such default. If the defaulting party
fails to cure such default or submit an acceptable written plan to resolve such
default within thirty (30) days following notice of default, the nondefaulting
party shall have the right to terminate this Agreement by furnishing the
defaulting party with written notice of termination.
13.2 In the event that a party; (i) become insolvent; (ii) enters into or
files a petition, arraignment or proceeding seeking an order for relief under
the bankruptcy laws of its respective jurisdiction; (iii) enters into a
receivership of any of its assets or; (iv) enters into a dissolution of
liquidation of its assets or an assignment for the benefit of its creditors, the
other party shall have the right to terminate this Agreement within thirty (30)
days by furnishing the defaulting party with written notice of termination.
13.3 Upon any such early termination caused by Customer, Customer shall
be liable for all work-in-progress and any outstanding charges in respect of
Products, and shall receive all related stock, work-in-progress, and finished
Products. Upon termination, Customer shall pay all invoiced charges net sixty
(60) days. Upon any such early termination caused by Supplier, Customer shall
have the right to receive all related stock, work-in-progress, and finished
Products at prices given in Exhibit A and amendments thereto, but Customer's
liability shall be limited to paying for finished Products it receives, at
prices given in Exhibit A and amendments thereto.
ARTICLE XIV
CONFIDENTIALITY
14.1 Supplier and Customer recognize that, for the term of this
Agreement, it will be necessary to disclose to each other certain confidential
information, and that each has a responsibility to protect such confidential
information.
14.2 "Confidential Information" shall mean the confidential and
proprietary information related to the design, manufacture, application,
know-how, experimentation, research and development, components, hardware and
software, contents, workings, data, installation and implementation of the
systems or products of Customer and the business, manufacturing, inspection, and
test processes of Supplier. It is understood that Confidential Information shall
not include:
(a) information which was in the public domain at the time of the
disclosure, or
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(b) information which, though originally Confidential Information,
subsequently becomes part of the public knowledge or literature through no fault
of the receiving party, as of the date of its becoming part of the public
knowledge or literature, or
(c) information independently developed by employees or agents of
the receiving party who the receiving party can show had no access to
Confidential Information received under this Agreement, or
(d) is rightfully received from a third party without restriction
on disclosure and without breach of this Agreement, or
(e) is disclosed pursuant to a requirement of a governmental
agency or the disclosure of which is required by law, or
(f) is approved for release by written authorization of the
disclosure party. Supplier and Customer mutually agree to hold each other's
Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties, nor use any Confidential
Information for other than the purposes of carrying out their obligations under
this Agreement. Supplier and Customer may disclose each other's Confidential
Information to their respective employees, but only to the extent necessary to
carry out the purposes for which the Confidential Information was disclosed, and
Supplier and Customer agree to instruct all such employees to not disclose such
Confidential Information to third parties without the prior written permission
of the parties disclosing such Confidential Information.
14.3 Supplier and Customer acknowledge that all Confidential Information
shall be owned solely by the disclosing party and that the unauthorized
disclosure or use of such confidential Information could cause irreparable harm
and significant injury which may be difficult to ascertain. Accordingly,
Supplier and Customer agree that the disclosing party shall have the right to
seek an immediate injunction enjoining any breach of this Article.
14.4 Upon the written request of either party, the other party shall
return to the disclosing party proof of destruction, or provide all data, plans,
drawings, maskworks, computer files, or tangible items representing the other
party's Confidential information and all copies thereof.
14.5 Supplier and Customer recognize and agree that nothing in this
Agreement shall be construed as granting any rights, license or otherwise, to
any Confidential Information disclosed pursuant to this Agreement.
14.6 Supplier and Customer agree that Confidential Information that is
disclosed from one party to the other shall be utilized by the receiving party
only for purposes of carrying out the terms and conditions of this Agreement,
and shall be used for no other purpose. Specifically, and without limitation,
Supplier agrees not to utilize any Confidential Information of Customer in the
manufacture of products for any other customer of Supplier, without the prior
express written consent of Supplier.
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ARTICLE XV
NON-COMPETITION
15.1 During the Term of this Agreement, and in perpetuity thereafter,
Supplier shall not have the right, without the prior written consent of
Customer, to manufacture, anywhere in the world, products based on Customer
designs and/or other Customer intellectual property, other than the manufacture
of products pursuant to this Agreement or based on Customer designs and/or other
Customer intellectual property in respect of which title to or the right to use
has been legally acquired by Supplier or by a third party which engages Supplier
for the purposes of manufacturing such products.
ARTICLE XVI
TIMELY DISCLOSURE
16.1 Supplier agrees to promptly inform Customer if it becomes aware of
any material threat to the uninterrupted production and delivery of the Products
that may develop from time to time from any cause whatsoever, regardless of
whether the cause is attributable to events internal or external to Supplier.
ARTICLE XVII
MISCELLANEOUS
17.1 Governing Law and Jurisdiction. This Agreement will be governed by
and interpreted under the laws of the State of California and the federal laws
of the United States of America applicable thereto. For any dispute arising out
of this Agreement, the parties consent on a non-exclusive basis to personal and
subject matter jurisdiction of the federal and state courts in California,
United States of America.
17.2 Entire Agreement; Enforcement of Rights. This Agreement, including
Exhibit A Pricing, Exhibit B Costed Xxxx of Materials and Exhibit C, current
Approved Vendor List, sets forth the entire agreement and understanding of the
parties relating to the subject matter herein and merges all prior discussions
and arrangements between them. No modification of or amendment of this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing and duly executed by the parties. The failure by either party
to enforce any rights thereunder will not be construed as a waiver of any rights
of such party.
17.3 Assignment and Successors. Supplier shall not assign its rights and
obligations herein, without the prior written consent of Buyer. A Change of
Control of Supplier shall be considered an assignment of this Agreement, thus
triggering the non-assignment provisions of this Section. For purposes of this
Agreement, "Change of Control" shall mean a direct or indirect change in the
ownership or control of the shares of the Supplier, whether by merger, sale,
acquisition or otherwise.The rights and liabilities of the parties hereto will
bind and inure to the benefit of their respective successors.
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17.4 Notices. Any required notices thereunder will be given in writing to
the addresses set forth below, or at such other address as either party may
substitute by written notice to the other in the manner contemplated herein, and
will be deemed to be received when hand-delivered or delivered by facsimile:
If to GVC
GVC Corporation
Xx. 00, Xxxx-Xx 0xx Xxxxxx
Xxxx Xxxx 333, Taoyuan Hsian
Taiwan, R.O.C.
Facsimile: Attention:
If to Customer:
Novatel Wireless .Inc.
Suite 110, 0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX
X.X.X. 00000
Facsimile: Attention: Vice President, Manufacturing
17.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
GVC CORPORATION
By: /s/
------------------------------------------
Its:
-----------------------------------------
NOVATEL WIRELESS, INC.
By: /s/
------------------------------------------
Its:
-----------------------------------------
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EXHIBIT A
DELIVERY POINT:
GVC
PRODUCT PRICING:
SELLING PRICE
PART NUMBER DESCRIPTION REVISION ($USD.)
649496001551 CDPD Modern Assembly TBD
EXPEDITE ***
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT A - ADDENDUM
Attachment C "Price Sheet" dated 5-24-00
DELIVERY POINT:
GVC
PRODUCT PRICING
Part Number Description Unit Cost
649496002435 Expedite ET $ * * *
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GVC Price List
Attachment A "Price Sheet" dated 6-15-00
PART NUMBER DESCRIPTION UNIT COST
649496 00243 5 Expedite ET $ * * *
649496 00265 7 Symbol Merlin $ * * *
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT B
COSTED XXXX OF MATERIALS (GVC)
***
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
B-1
