Exhibit 10.18
1 June 1999
Manufacturing Services Agreement
(Venice Printed Circuit Assemblies)
Hewlett-Packard Singapore Pte Ltd Manufacturers' Services S'pore Pte Ltd
000 Xxxxxxxxx Xxxx No 12, Street 65,
12th Floor Ang Mo Kio Industrial Park 3
Xxxxxxxxx 000000 Xxxxxxxxx 569060
This Agreement is effective this 1st day of June 1999 ("Effective Date") by and
between Hewlett-Packard Singapore (Pte) Ltd; (herein referred to as "HP") and
MANUFACTURERS' SERVICES SINGAPORE PTE LTD (herein referred to as "CM").
PREAMBLE
Whereas, CM is in the business of performing assembly services, testing and
other manufacturing related operations for the product(s) defined in Schedule 1
("the Products") and;
Whereas HP is desirous of entering into an manufacturing services agreement with
CM under terms and conditions set forth below:
1. TERM
This Agreement shall be in effect from the Effective Date and shall be
valid for a period of [*] ("Term"). Thereafter, annual renewals of this
Agreement shall be by mutual written consent of both parties.
2. SCOPE OF SERVICES
During the Term of this Agreement, CM shall manufacture the Products in
accordance with the specifications set out in Schedule 1, 6, 8 and supply
those Products exclusively to HP, and HP shall purchase such volumes of
the Products as to be ordered by HP from time to time.
CM shall perform the following manufacturing services:
(a) Assembly
(b) Testing
(c) Packaging and delivery
(d) Service support
3. DEFINITION OF SERVICES
Assembly:
The process of joining together components in accordance with process
flow, written process, technical requirement and visual inspection
criteria.
---------------------
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with the
Commission.
The process of testing electrical performance where required to meet the
product's electrical specifications.
Packaging and Delivery:
The process of packaging the product as defined in the assembly procedure
specified in Schedule 6.
Service Support:
The process of supplying service assemblies specified in Schedule 9
between the product manufacturing release date and the end of the GMS
period, defined as [*] after the product End-Of-Life.
4. FORECAST AND ORDERS
Subject to this clause, the process for forecasting and ordering
(including CM's response to orders) the Products shall be in accordance
with Schedule 2.
4.1 Forecast
Throughout the Term of this Agreement, HP shall provide CM with an
advanced non-cancellable [*] order and a rolling forecast of
projected demand for each model of the Products. Such rolling
forecast shall be for at least [*] although HP may forecast for up
to [*].
4.2 Purchase Order
HP shall provide the purchase order for the following [*].
Purchase orders must contain the following terms:
(a) the name and product number of the Product ordered
(b) the minimum quantities per Product and multiples thereof;
(c) delivery instructions, including requested delivery schedule.
(shipping destination will be provided separately)
(d) purchase order number and contract number, date of order, name
and title of HP's representative, invoice-to address, order
acknowledgement address and any special instructions.
4.3 Response Time
CM shall respond within [*] working days after the receipt of the
Purchase Order.
5. MATERIALS MANAGEMENT
Materials required for the manufacture of the Products shall:
(a) be supplied to CM by HP on consignment; and/or
(b) obtained by CM from vendors approved by HP ("turnkey")
Such consigned/turnkey materials are specified in Schedule 3.
5.1 Materials on Consignment
Where materials are supplied by HP on consignment:
(a) CM shall be responsible for all forwarding and brokerage costs
and customs duties or user fees. CM shall also assist HP with
all import formalities and obtain customs clearance for such
consigned materials.
(b) As long as CM continues to have possession of the material
supplied by HP, HP shall retain legal title to all such
materials supplied. In the event such materials are used even
with loss of identity, the legal title to the resultant
products shall remain in HP.
(c) CM shall submit to HP on a monthly basis, a report on the
balance of consigned materials in the possession and control
of CM at its premises in an agreed format.
(d) HP reserves the right to perform a periodic statistical audit
of CM's physical inventory.
(e) Upon termination of this Agreement and/or business
relationship for whatever reasons, CM shall return the
remaining quantity of consigned materials to HP in good
condition.
5.2 Materials on Turnkey
Where materials are obtained by CM from vendors approved by HP:
(a) CM shall purchase materials only from HP approved vendors in
the Approved Vendors List ("AVL") set out in Schedule 4.
(b) Any changes in vendors, parts specifications and processes
shall be subject to HP's review and written approval.
(c) CM shall plan for the turnkey materials required according to
HP's forecast and communicate the requirements to the approved
vendors based on the AVL allocation percentage determined by
HP.
(d) CM shall verify the quality and quantity of each receipt of
materials from suppliers. CM shall take a proactive role to
initiate corrective actions for any non-conformance to
material specification.
(e) CM shall have the full ownership and accountability of
delivery, quality and cost
(f) CM shall submit to HP on a monthly basis, a report on the
balance of turnkey materials in the possession and control of
CM on its premises and the quantity and leadtime and value of
open purchase orders of turnkey materials in an agreed format.
(g) CM shall obtain authorisation from HP for the purchase of very
long component lead times or industry parts allocations, in
excess of the stated cumulative lead-
time. All exception buy agreements shall be dated and written
and shall specify the part numbers and description of
materials to be purchased, the assembly that the materials are
to be used in, and the maximum liability.
6. MATERIALS LIABILITY
6.1 Planned End-Of-Life
HP shall provide [*] notice before any planned Product End-Of-Life.
HP and CM shall each endeavour to avoid or to minimise any materials
liability for both HP (consignment) and CM (turnkey) controlled
materials.
6.2 Unplanned EOL
In the event of an unplanned End-Of-Life, CM shall take all
reasonable steps to reduce outstanding excess materials exposure and
liability. All eventual materials liability must be clearly
documented and justified.
HP shall be liable for the materials purchased for purchase orders
that have been issued to CM, as well as those that have been
purchased/ordered outside the period of HP's orders due to long lead
time. HP shall not be liable for any excess material purchased by
CM.
6.3 Build Plan Reduction outside Materials Lead-times
HP shall not be liable for any material exposure in the event of a
build plan reduction that is beyond the lead-times of components.
6.4 Build Plan Changes within Materials Lead-times
In the event of a change in build plan within lead-time, CM shall
take all reasonable steps to reduce outstanding excess materials
exposure and liability. HP shall be liable only for inventory that
is purchased/ordered within the material lead-time.
6.5. HP shall be liable for any material exposure in the event of a PCO
implementation that is beyond the leadtime of the components
6.6 Exposure Reduction
CM shall strive to continuously reduce the lead-time of the
components and the logistic flow between the assemblies so as to
reduce the material exposure and improve response time for material
assembly.
7. OPERATING SUPPLIES
7.1 CM shall provide operating supplies as required in the manufacturing
process. HP shall provide on consignment all indirect materials
unique to HP.
7.2 Any changes to the use of operating supply materials and/or the
supplier shall require written approval from HP. Operating supplies
which require approval include but shall not be limited to oils,
paper for printer testing and label printing ink ribbons.
7.3 Upon termination of this Agreement and/or business relationship for
whatever reasons, CM shall return the remaining consigned indirect
materials to HP in good condition.
8. EQUIPMENT AND TOOLING
8.1 CM shall supply all standard production tooling and fixture
requirements defined in Schedule 5A.
8.2 HP shall provide unique process equipment and spare/replacement
parts associated with the manufacturing process as defined in
Schedule 5B. HP shall have full ownership of all equipment and tools
exclusively paid for by HP but under CM possession. Schedule 5B
shall be updated whenever there is any change in the list of
equipment and tooling consigned to CM.
8.3 CM and its suppliers shall maintain and repair the unique process
equipment.
8.4 In the event that CM considers it necessary to renew any HP unique
tools or to add alterations to the existing tools to meet HP's
specifications or request, CM shall notify HP for approval at least
two (2) months prior to the actual implementation. HP shall not
withhold the approval unreasonably.
8.5 CM shall qualify all new tools/fixture and obtain HP's written
approval before they are used in CM's production line. CM shall send
HP a copy of its qualification report to HP. In the event that HP
does not concur with CM's qualification result, HP has the right to
reject the use of new tools until corrective actions are taken.
8.6 CM shall calibrate all equipment and tools according to the
procedures specified by manufacturers or as per HP requirements. A
calibration report must be filed and made available to HP upon
request.
8.7 CM shall not sell, assign, sublet, pledge, hypothecate or otherwise
encumber or suffer a lien upon or against any interest in this
Agreement any unique equipment or tools mentioned herein, or alter,
or remove the equipment or tools, from the place of installation
without HP's prior written consent, which consent shall not be
unreasonably withheld.
8.8 In the event that this Agreement is terminated for whatever cause,
CM shall pack the applicable equipment and tools for shipment in
accordance with manufacturers' specifications and shall return in
the same condition as when delivered to CM, fair wear and tear
excepted, to a location to be specified by HP at HP cost.
HP is responsible for PCA ICT test and Top level test software
upgrades.
9. PROPERTY
9.1 HP shall at all times retain all right, title and interest in HP
property, including but not limited to materials, operating supplies
and equipment and tooling, consigned to CM.
9.2 HP shall conduct physical inventory audits of all HP property such
as consigned equipment / tooling and components located at CM
Premises at no cost to HP.
9.3 Upon HP's request, or the expiration or sooner determination of this
agreement, CM shall return all HP property to HP in good condition;
normal wear and tear excluded. All return costs shall be borne by
HP.
10. STAFFING
10.1 CM shall maintain sufficient personnel to support the business and
ensure that its assembled products conform to HP's specifications
and quality standards.
10.2 To be deleted.
10.2 HP shall provide the necessary training required at start-up, free
of charge to CM employees. CM shall carry out any subsequent
training and maintain verifiable training records.
10.3 In the event training of CM employees is conducted in HP's premises
in Singapore, CM shall pay for all expenses incurred by CM
employees, in attending the training in Singapore.
10.4 In the event HP sends personnel to CM to assist in the start-up, HP
shall pay for all expenses incurred by HP employees.
11. ENGINEERING AND ASSEMBLY
11.1 The process and specifications for the assembly and engineering of
the Products shall be as described in Schedule 6 and shall be
governed by the terms and conditions therein. (Schedule 6 will be
revised quarterly if there is changes)
12. CHANGE ORDERS
12.1 HP shall be entitled to change its specifications subject to
issuance of a Production Change Order (PCO). Such change shall be
effective from the date of the PCO, subject to an agreed
implementation schedule and there is no consequent increase the
costs of services.
12.2 In the event the PCO increases the cost of services, the parties are
entitled to renegotiate for higher service charges payable. if the
parties are unable to agree to an adjustment in service charges, HP
may withdraw its PCO or alternatively exercise its right of
termination under the Agreement provided HP pays all attendant costs
involved in terminating the Agreement including unused materials and
spare parts.
13. PRODUCTION VOLUME
13.1 Both parties shall comply with the production ramp profile for new
top level assemblies and yield expectations for Printed Circuit
Assemblies(PCA) as determined by HP and CM as set out in Schedule 7.
(a) Production volume shall mean the projected quantity ordered by
customers.
(b) Due to changes in production volume, the production capacity
flexibility shall be as follows:
o [*]
o [*]
o [*]
CM shall respond to [*] of installed capacity with a lead-time of
[*].
13.2 In the event changes are beyond the above limits, HP and CM shall
review and discuss on the necessary actions to be taken.
13.3 In the case of volume ramp down or discontinuance, HP shall provide
[*] notice.
14. COST REDUCTION
14.1 CM shall actively pursue cost reduction from the onset of initial
production.
14.2 Cost reduction shall be achieved in areas including but not limited
to process improvements, material cost reductions, redesigning,
improved manufacturing efficiency, packaging recycling,
transportation, yields, localisation and automation.
14.3 In the event that changes in the assembly processes result in
significant productivity, HP and CM shall [*]. HP and CM shall agree
on all process adjustments.
14.4 CM shall fulfil all the cost goals and roll-in timelines as set out
in Schedule 7.
15. QUALITY
Subject to this clause, quality specifications, requirements and standards
for the Products shall be as defined in Schedules 6 and 8.
15.1 CM shall ensure that the finished Products satisfy HP
specifications, quality and reliability standards by appropriate
agreed-upon test methods. HP shall ensure that current revision of
specifications and test methods are made available to CM.
15.2 HP shall ensure that any changes in specifications are updated with
current revisions and CM informed of the changes.
15.3 CM shall maintain a quality system that meets 1S09002 standards.
15.4 CM shall ensure compliance in all areas to the current version of HP
Workmanship Specification for ESD Control (HP Document
#A-5951-1589-1, the relevant sections of which are attached in
Schedule 8).
15.5 CM shall ensure that the finished products comply with the
product-specific technical product regulations (E.g. UL, CSA, CCIB,
VCCI, FCC).
15.6 CM shall ensure that their factory certifications are maintained for
manufacture in accordance with the specified technical product
regulations.
15.7 CM shall conduct any necessary testing in accordance with HP
specifications and manage, execute HP specified qualifications &
processes and submit data, failure analysis and corrective actions
to HP.
15.8 Any units rejected by HP may be returned to CM for possible rework
or rescreen at no charge to HP, if the cause or failure of is due to
CM's non-conformance to HP's specifications or defective
workmanship. If HP opts to make a claim against CM under Clause 24,
HP shall provide sufficient documentation as needed to support its
claim.
15.9 CM warrants that all Material Safety Data Sheets for the Product
shall be provided to HP upon request and shall be complete and
accurate.
16. YIELD
16.1 In the event that assembly yield is low due to assembly quality or
equipment problems, CM shall conduct the necessary investigation to
resolve the problem(s) encountered.
16.2 In the event that the accepted process yields do not match HP's
targeted yields [*] from start-up, CM shall aim to achieve the
targeted yields or HP's sustainable yields (whichever is lower)
within [*] of start-up, upon which HP may claim for excess
scrappage.
17. QUALITY AUDITS
17.1 General
(a) HP shall be entitled to undertake a quality audit of CM
facilities at any time. CM shall permit HP's authorised
representatives to enter into its premises for the purposes of
quality audits. CM shall be responsible for follow-up
corrective actions and shall report the results back to HP.
(b) CM shall establish and maintain a Quality Assurance System of
product inspections and reporting system to ensure the
assembled products conform to HP's specifications, quality and
reliability standards.
17.2 ESD
(a) CM shall conduct monthly ESD compliance audit and audit
reports (results and corrective action and plan, if any) shall
be submitted to HP on the first week of each month.
(b) In the event that corrective action is required a re-audit
shall be conducted upon completion of the implementation of
the plan. Reports on implementation of corrective action,
action items and plan must be attached to the ESD monthly
report.
17.3 Failure to meet standards
If CM fails to achieve and maintain the standards required by HP, HP
shall be entitled to re-evaluate and modify appropriately the status
of CM as a recommended service provider in the long term.
18. PACKAGING AND DELIVERY
18.1 CM shall ship finished Products in full pallets, unless otherwise
instructed.
18.2 All finished Products must be serialised, scanned, packaged and
visually inspected according to HP specified shipment and packaging
standards.
18.3 Any Product that does not conform to the standards shall be returned
to CM for repackaging/replacement at CM's expense unless HP, in its
sole discretion, adopts an alternative solution.
18.4 All Products shall be packaged, handled and packed according to
agreed packaging requirement so as to protect the Products from loss
or damage.
18.5 Delivery of finished Product and/or HP materials to carrier at point
of shipment shall constitute delivery to HP.
18.6 Upon stability, (not greater than [*] from start-up), CM shall
commit to a normal turnaround time of [*] to ship the finished
Products in accordance with HP agreed loading schedule.
18.7 CM shall provide urgent turnaround of [*] working days to ship
finished Products as and when the need arises, for example when the
end-customer faces a product shortage subject to availability of
unique parts.
18.8 CM shall meet all delivery requirements, including delivery on time.
CM shall not he entitled to deliver the Products late and may
deliver within [*] days before the scheduled time.
19. DELAYS
19.1 Likely Delay
CM shall inform HP immediately upon the likelihood of a delayed
delivery. CM shall take all necessary action to minimise delay or
shortfall and provide HP with proper recovery plans.
19.2 Delaying Cause
CM shall not be liable for delays or failure in order performance or
delivery of finished Products caused in whole or in part, by
inability to obtain transportation, equipment or material due to
insurrection, fires, floods, storms, embargoes, action of military
or civil authorities, lockouts, acts of God, or other similar or
different circumstances beyond the control (collectively called
"Delaying Cause") of CM.
In the event of a Delaying Cause, HP may elect in its sole
discretion to:
(a) Terminate the agreement or any part thereof as to the finished
products not shipped, provided that the delaying cause endures
longer than [*]; or
(b) Suspend this Agreement in whole or in part for the duration of
the delaying cause, purchase said finished products from
alternate source and deducts from any quantities specified in
HP's forecasted requirements.
If HP selects (b) above, HP may resume performance under this
Agreement once the delaying cause ceases and extend the Term up to
the length of time the delaying cause endured.
Unless HP gives notice of termination pursuant to (a) above, within
[*] days after notice from CM of delaying cause, HP shall be deemed
to have selected (b).
20. SERVICE SUPPORT
CM shall provide maintenance and manufacturing support services to deliver
service assemblies specified in Schedule 9 during the Guaranteed minimum
Support(GMS) period defined as [*] after the product End-Of-Life(EOL). The
EOL shall be made known to CM [*] in advance.
21. QUOTATION
21.1 CM shall send an updated quotation to HP monthly and as and when
required with full cost details of xxxx of material, lead time,
approved vendor list (AVL) and assembly cost.
21.2 All quotations shall be quoted in US dollars. The quotations will be
reviewed if the exchange rate fluctuation is outside the [*]%
window.
21.3 All quotations by CM are considered the confidential property of CM
and will be treated as confidential information by HP.
21.4 HP shall not reveal CM's proprietary costing information to any
others without seeking permission from CM in writing.
22. PAYMENT AND TAXES
22.1 HP shall make all payments to CM in US dollars by telegraphic or
electronic transfer to a CM specified bank account within [*] days
from the invoice date.
22.2 Any invoices with discrepancies shall be returned to CM for full
equivalent credit and correction.
22.3 All payments made under this Agreement shall be net of all taxes and
official fees, including but not limited to withholding, income,
sales, excise, value added and other taxes.
23. DISCREPANCIES AND REMEDIES
23.1 CM shall verify the quantity of all HP materials consigned. CM shall
inform HP within two (2) working days of receipt of consigned
materials for any discrepancies. Such notice shall state all
material facts concerning the claims then known to CM.
23.2 HP shall inform CM of any claims for quantity discrepancies and/or
defects or nonconformance of finished Products, Such notice shall
state all materials facts concerning the claims then known to HP.
For rejected finished Products, HP may make a claim under Clause 25.
24. SET OFF
Whenever under this Agreement any sum of money shall be recoverable from
or payable by CM, the same may be deducted from any sum then due or which
at any time thereafter may become due to CM under this or any other
contract with HP. Exercise by HP of its rights under this clause shall be
without prejudice to any other rights or remedies available to HP under
this Agreement, or otherwise howsoever, at law or in equity.
25. RISK OF LOSS
25.1 Loss of damage to property
CM shall be liable for any loss or damage to HP property, consigned
equipment and the Products before delivery to HP as specified above
in Clause 18.5.
25.2 Title and Risk
Title to the Products and risk of loss and damage shall pass to HP
upon delivery. All claims for damage incurred in transit must be
filed against the carrier and presented by HP. CM shall assist in
the best effort to provide all information and documentation to
ensure HP secures its claims.
25.3 Loss control
CM shall be responsible for maintaining the facility and operations
in accordance with applicable and prudent safety, security and fire
protection and loss control standards. CM shall allow HP and their
designated representatives to visit and perform loss control audits
of the facility and operations.
26. INDEMNITY
26.1 In general, CM shall defend, indemnify and hold harmless HP, its
officers, directors and employees from any claims, losses,
attorney's fees, damages, liabilities, costs, expenses, or suits for
injury to any person (including CM or its employees), damages to or
loss of property, or any other claims arising out of or resulting
from any act or omission of CM, its employees, agents, or
subcontractors; the performance of this Agreement; the presence of
CM or its personnel on HP'S premises. In no event shall CM be
responsible for the negligence of HP, its officers, Directors and
employees.
26.2 CM shall indemnify HP for any loss of or damage to HP equipment and
inventory in the care, custody and control of CM, due to theft by CM
agents, employees and subcontractors or from any event due to CM's
negligence. The perils shall include fire, lightning, earthquake,
typhoon and floods.
27. INSURANCE
During the Term and at all times that CM performs services for HP, CM
shall maintain in full force and effect, at CM's expense, the following
minimum insurance coverages. The insurance policies evidencing the
required coverages and limits shall be furnished to HP before any work is
commenced hereunder, name HP as additional insured, and provide
that there will be no cancellation or reduction of coverage without thirty
(30) days prior written notice to HP.
27.1 Cross Liability
Any insurance required to be effected by CM naming HP as an
additional insured in accordance with the contract shall include a
cross liability clause in which the insurer agrees to waive all
rights of subrogation or action against any of the persons
comprising the insured and for the purpose of which the insurer
accepts the term "insured" as applying to each of the persons
comprising the insured as if a separate policy of insurance had been
issued to each of them.
27.2 Worker's Compensation
Worker's Compensation Insurance shall be provided by Sub-Contractor
as required by law or regulation and shall include Employer's
liability at common law for not less than [*] (or equivalent in
local currency) per accident or occurrence involving bodily injury
or disease which terms shall include death resulting).
27.3 Fidelity / Crime Xxxx
XX will be covered by Fidelity Insurance or Commercial Crime Bond as
respects CM's agents, employees, and sub-contractors performing
under this Agreement with blanket limits of at least [*] (or
equivalent in local currency) per occurrence, with automatic
reinstatement provision.
27.4 General Liability
Comprehensive General Liability Insurance (or equivalent Public and
Products Liability policies) inclusive of Premises and Operations,
products and Completed Operations, in respect of Property Damage)
which term shall include loss of Property) and Bodily Injury (which
term shall include death) with a limit not less than [*] (or
equivalent in local currency) in respect of any one accident or
occurrence and, as regards Products and Completed Operations
[*] (or equivalent in local currency) in the aggregate.
27.5 "All Risks Insurance"
CM shall effect All Risks Insurance to the effect of [*] (or
equivalent in local currency).
27.6 Transit Liability
CM shall provide a Transit All Risks Insurance Policy covering loss
or damage to HP property which is transported from CM's premises to
HP's premises including loading and unloading. The coverage shall be
[*] per transit or carriage.
28. INTELLECTUAL PROPERTY
28.1 Patents and Designs
HP shall be the sole owner or authorised licensee of all designs for
the Product.
28.2 HP Marks
HP grants to CM the right to apply those certain HP trade marks,
trade names and trade dress (collectively the "HP Marks"), as
expressly written and agreed upon between CM and HP, solely in
strict compliance with HP's then current trademark specifications
and guidelines provided by HP, unless and to the extent that HP has
given prior written consent to a modification thereto. When HP
provides to CM artwork to be applied to the Products, such trademark
compliance shall be HP's responsibility. HP represents and warrants
that it is the sole and exclusive owner of the HP Marks and that the
contemplated use of the HP Marks on the Products will not infringe
upon the rights of any third party. HP's trademarks shall be affixed
to each unit of the Product.
Nothing contained in this Agreement shall be construed as conferring
any right on CM to use in advertising, publicity or other marketing
activities any name, trade name, trade xxxx or other designation of
HP, including any contraction, abbreviation or simulation of any of
the foregoing.
28.3 Copyright
Unless otherwise agreed to in writing, copyrighted materials may not
be copied, except for archival purposes, to replace a defective copy
and for program error verification.
28.4 Indemnity
CM shall not be liable in any way with respect to claims of
infringement of US or foreign patents, copyrights, trademarks or
other proprietary rights arising out of or any relating to HP's
contract for CM's services, importation, use, possession, sale or
delivery of any product or services rendered to HP by CM and HP
shall indemnify, defend and hold CM harmless from any and all such
claims and liabilities, damages and expenses, including attorney
fees.
29. CONFIDENTIALITY
Both parties shall adhere to the Confidential Information Disclosure
Agreement, attached hereto and labeled Exhibit A.
29.1 Each party shall protect the other's confidential information from
unauthorised dissemination and use with the same degree of care that
each party uses to protects its own like information, but at a
minimum, with a reasonable degree of care.
29.2 Neither party will use the other's confidential information for
purposes other than those set forth in the applicable Confidential
Information Disclosure Agreement.
29.3 CM shall hold secret and confidential, and not use or disclose any
confidential information or materials (including but not limited to
prices, part numbers, volume forecasts, assembly processes,
specification documents) of HP except when these are used for the
performance of its obligations herein.
30. TERMINATION
30.1 Termination
This agreement may be terminated:
(a) At any time without notice by either party upon breach of the
terms of this Agreement;
The term "breach" shall include without limitation any:
i. Proceedings whether voluntary or involuntary, in
bankruptcy or insolvency by or against a party;
ii. Appointment, with or without a party's consent, of a
receiver or assignee or the benefit of creditors;
iii. Act by CM that endangers performance of this Agreement
in accordance with its terms.
iv. Failure by CM to make a delivery of finished products in
accordance with the requirements of this Agreement;
v. Persistent or recurring failure on the part of CM to
replace or rework finished products in a timely manner
as required under the terms of this Agreement;
vi. Other failure to comply with any material provision of
this Agreement with additional failure to provide the
non-breaching party, upon request, with reasonable
assurances of future performance.
(b) At any time by mutual written consent of both parties.
(c) By HP upon giving CM [*] written notice without assigning any
cause through registered mail to the above address.
(d) By CM upon giving HP [*] written notice through registered
mail to the above address to enable HP to find and qualify
another services source in the event that the need arises.
(e) By HP, [*] in the event that there is a change in CM's total
corporate holding that prejudices HP's commercial and business
interest in continuing the performance of this Agreement.
30.2 Rights and Obligations upon Termination
(a) All Purchase Orders issued prior to the expiration or
termination of this Agreement for any reason shall be
fulfilled pursuant to and subject to the terms of this
Agreement, even if the delivery dates occur after expiration
or termination of this Agreement.
(b) Upon termination of this Agreement for any reason, all
Products which have been manufactured by CM but not delivered
to HP at the date of termination shall be delivered subject to
the terms of this Agreement, and all usable but unused stocks
of labelling and packaging for the Products bearing any of the
HP Marks shall be sold to HP at a price [*].
(c) Upon termination of this Agreement CM shall:
i. cease to manufacture and sell the Products, subject to
the above clause;
ii. cease to use, either directly or indirectly, any of the
designs, HP Marks or other intellectual property owned
by HP and / or licensed to CM and forthwith return to HP
any documents in its possession or control which
contain or record any part of those designs, HP Marks or
other intellectual property owned by HP;
iii. consent to the cancellation of any formal license
granted to it, or of any record of it in any register,
in respect of any designs, HP Marks or other
intellectual property of HP; and
iv. at its own cost forthwith return any consigned
materials, equipment, tools or other HP property to HP
at HP cost.
and subject as provided in this clause and except in respect
of accrued rights, neither party shall have any further
obligation to the other.
(d) Notwithstanding the expiration or early termination of this
Agreement for any reason, the provisions relating to
confidentiality and the confidential information disclosure
agreement attached in Exhibit A shall continue in force in
accordance with the terms therein.
31. GOVERNMENT COMPLIANCE
CM warrants and undertakes that in the performance of this Agreement it
will comply with all laws, rules, regulations and decrees and other
ordinances issued by any supra-governmental, governmental, state or other
authority relating to the subject matter of this Agreement and to the
performance by CM of its obligations hereunder.
CM shall obtain Safety and Regulatory Certifications for the manufacturing
facility at its own expense.
CM shall furnish to HP any information required during the term of this
Agreement to enable HP to comply with the requirements of any governmental
agency in its use of the finished products.
32. ENVIRONMENTAL COMPLIANCE
32.1 Montreal Protocol
CM warrants, certifies, represents, and agrees that in performing
its obligations under this Agreement, in particular its
manufacturing processes, nothing shall be contrary to the written
provisions of Montreal Protocol on substances that Deplete the Ozone
Layer as adjusted and amended by the second meeting of the parties
in London 27-29 June 1990.
32.2 Toxic Substance Control Act
CM warrants that in performing its obligations under this Agreement,
in particular its manufacturing processes, each chemical substance
used in the finished products is on the inventory of chemical
substances compiled and published by the Environmental Protection
Agency pursuant to the Toxic Substances Control act.
33. COUNTRY OF MANUFACTURE AND DUTY DRAWBACK RIGHTS
Upon HP's request, CM shall provide HP with an appropriate certification
stating the country of origin for the finished products, sufficient to
satisfy the requirements of:
(a) The customs authorities of the country of import of said finished
products; and
(b) Any applicable export licensing regulations.
34. US EXPORT ADMINISTRATION ACT
The materials consigned may contain technology and items that come from
USA. Regardless of any disclosure by CM to HP of the contemplated ultimate
destination of the materials, CM shall not export or re-export, directly
or indirectly, any material (or the direct product of any materials),
where applicable; without first obtaining an export license from the
department of Commerce or other agency of the US government, as required.
35. GENERAL
35.1 Severability and Heading
Any provision of this Agreement which is held invalid or
unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or
rendering unenforceable the remaining provisions hereof. And any
such invalidity or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provisions in any other
jurisdiction. All paragraph headings are purely for convenience and
do not form any part of this Agreement.
35.2 Entire Agreement and Amendment
This Agreement (including the documents and instruments referred to
herein) supersedes all prior commitments, representations and
warranties relating to the subject matter hereof which may have been
made by the parties either orally or in writing prior to the date
hereof, and which shall become null and void from the date this
Agreement is signed.
This Agreement (including the documents and instruments referred to
herein) incorporates the entire understanding reached between the
parties hereto with regard to the relationship of parties as
independent contractors. Any amendment or supplement to this
Agreement must be made in writing with the approval by both parties'
authorized representatives in order to be effective
35.3 Schedules and Exhibits
The following Schedules and Exhibits attached to this Agreement
shall be deemed as part of this Agreement and incorporated herein by
reference:
Schedules
---------
Schedule 1 Products and specifications
Schedule 2 Forecast, ordering and response process
Schedule 3 Materials a) on consignment b) on turnkey
Schedule 4 Approved vendor list
Schedule 5A Equipment to be provided by CM
Schedule 5B Equipment to be provided by HP
Schedule 6 The Assembly process, specifications and other terms and
conditions
Schedule 7 Cost goals
Schedule 8 Quality specifications
Schedule 9 Terms and conditions for service and maintenance support
Schedule 10 Field Quality Warranty Cost Co-sharing Scheme
Exhibit
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Exhibit A Confidential Information Disclosure Agreement.
35.4 Assignment
Neither party may assign or transfer any of the rights, duties or
obligations herein, without the prior written consent of the other and any
purported attempt to do so shall be null and void.
35.5 No Partnership or Agency
The parties hereby agree that the parties' relationship shall be that of
independent contractors and that nothing contained in this Agreement shall
be construed as constituting the parties as partners or parties to a joint
venture or either party as an agent of the other.
35.6 Waiver
No exercise or failure to exercise or delay in exercising any right power
or remedy vested in either party under or pursuant to this agreement shall
constitute a waiver by that party of that or any other right power or
remedy.
35.7 Legal fees/stamp duty
Each party shall bear its own legal costs in preparing and executing this
Agreement. CM shall bear any applicable cost of stamp duty in respect of
this Agreement. CM shall be solely responsible to determine whether stamp
duty is payable under this Agreement and shall indemnify HP against any
failure to comply with such legal requirement.
35.8 Non-Exclusive
The appointment of CM to perform the services under this Agreement shall
not restrict HP's ability to appoint one or more independent third parties
to perform similar services on such terms and conditions as mutually
agreed by both parties.
35.9 Time
Time shall be of the essence of this Agreement, both as regards the dates
and periods mentioned in this Agreement and in any of the documents or
instruments referred to herein, and as regards any dates and periods which
may be substituted for them in accordance with this Agreement or by
agreement in writing between the parties.
35.10 Definition of days
All references in this Agreement to "days" shall, unless otherwise
specified herein, mean calendar days.
35.11 Definition of years
All references in this Agreement to "FY" shall mean fiscal year, which for
HP shall start from November of a calendar year to October of the
following calendar year.
Each fiscal year (FY) shall be divided into 4 quarters (Qtr) and 2 halves:
1st Qtr : Nov - Jan } lst half
2nd Qtr : Feb - Apr }
3rd Qtr : May - Jul ] 2nd half
4th Qtr : Aug - Oct ]
35.l2 Errors
Stenographic, typographical, or clerical errors are subject to correction
by HP.
36. NOTICE
Any notice to be given by either party to this agreement shall be in
writing and shall be deemed duly served if delivered personally or sent by
facsimile transmission or by prepaid registered post (airmail in the case
of an address outside the country of origin) to the addressee at the
address or (as the ease may be) the facsimile number of that party set
opposite its name below:
HP Address: CM Address:
20 Gulway Manufacturers' Services S'pore Pte Ltd
Xxxxxxxxx 000000 Xx 00, Xxxxxx 00,
Xxx Xx Xxx Xxxxxxxxxx Xxxx 3
#04-00 Lek Sun Building
Xxxxxxxxx 000000
Telephone no: Telephone no:
(00) 000-0000 (00) 000-0000
Fax no: Fax no:
(00) 000-0000 (00) 000-0000
Marked for the attention of: Marked for the attention of:
Xxxxxx Xxxxx Ng Xxx Xxxx
Or at such other address (fax no.) as the party to be served may have
notified (in accordance with the provisions of this clause) for the
purposes of this agreement.
Any notice sent by telex or fax shall be deemed served when despatched and
any notice served by prepaid registered post shall be deemed served 48
hours after posting to an address in the country of origin or five (5)
days after posting to an address outside that country. In proving the
service of any notice it will be sufficient to prove in the case of a
letter that such letter was properly stamped addressed and placed in the
post or delivered or left at the current address if delivered personally
and in the case of a facsimile that
such facsimile transmission was duly despatched to the fax no. of the
addressee given above or subsequently notified for the purposes of this
agreement.
37. APPLICABLE LAW
This Agreement shall be construed in accordance with Singapore Law and
shall be subject to the non-exclusive jurisdiction of the Courts of
Singapore.
38. ARBITRATION
Any dispute arising out of or in connection with this Agreement, including
any question regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration in Singapore in accordance
with the Arbitration Rules of the Singapore International Arbitration
Centre ("SIAC Rules") for the time being in force which rules are deemed
to be incorporated by reference into this clause.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement together with
its attachments to be executed in duplicate originals by their duly authorized
representatives.
Signed for and on behalf of: Signed for and on behalf of:
Hewlett-Packard Singapore (Pte) Ltd. Manufacturers' Services S'pore Pte Ltd
Inkjet Products Group - Asia Operations
---------------------------------------
(Division Name)
Home Business Unit - PL 83
--------------------------
(Department Name)
/s/ Xxxxxx Xxxxx /s/ Xxxxxx Xxxx
-------------------------- --------------------------
Name : XXXXXX XXXXX Name : XXXXXX XXXX
Title : MATERIALS MGR Title : PRESIDENT
Date : Jun 22 '99 Date : JUNE 8th, 1999
Exhibit A
[HEWLETT-PACKARD LOGO]
CONFIDENTIAL DISCLOSURE AGREEMENT
Effective Date:
--------------------------
In order to protect certain confidential information which may be disclosed
between them, Hewlett-Packard Singapore Pte Ltd ("HPSG"), a division of
Hewlett-Packard Company ("HP") and the "Participant" identified below agree
that:
1. The Discloser(s) of confidential information is (are):
HEWLETT-PACKARD SINGAPORE PTE LTD
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(fill in "HPSG", Participant" or "Both Parties")
2. The parties' representatives for disclosing or receiving confidential
information are:
HPSG:
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PARTICIPANT: -----------------------------------------------------------------
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3. The confidential information disclosed under this Agreement by HPSG, HP,
its subsidiaries and affiliates, is described as:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
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and the confidential information disclosed under this Agreement by the
Participant is described as:
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4. This Agreement controls only confidential information which is disclosed
between the effective date and
-----------------------------
5. A party receiving confidential information under this Agreement
("Recipient") recognizes the proprietary rights of the other's (its ultimate
holding company, subsidiaries and affiliates inclusive) in and to the
information and the confidential nature of the information and agrees to use
the confidential information only for the purpose of:
THE ASSEMBLY OF [*] AND [*].
6. A Recipient's duty to protect confidential information disclosed under
this Agreement expires on .
-----------------
7. A Recipient shall protect the disclosed confidential information by using
the same degree of care, but no less than a reasonable degree of care, to
prevent the unauthorized use, dissemination or publication of the
confidential information as the Recipient uses to protect its own
confidential information of a like nature.
8. A Recipient shall have a duty to protect only that confidential
information which is (a) disclosed by the Discloser in writing and is marked
as confidential at the time of disclosure, or which is (b) disclosed by the
Discloser in any other manner and is identified as confidential at the time
of disclosure and is also summarized and designated as confidential in a
written memorandum delivered to the Recipient's representative named in
paragraph 2 above within thirty days of the disclosure.
9. This Agreement imposes no obligation upon a Recipient with respect to
confidential information which (a) was in the Recipient's possession before
receipt from the Discloser, (b) is or becomes a matter of public knowledge
through no fault of the Recipient; (c) is rightfully received by the
Recipient from a third party without a duty of confidentiality; (d) is
disclosed by the Discloser to a third party without a duty of
confidentiality on the third party; (e) is independently developed by the
Recipient; (f) is disclosed under operation of law; or (g) is disclosed by
the Recipient with the Discloser's prior written approval.
10. Each Discloser warrants that it has the right to make the disclosures
under this Agreement.
11. Neither party acquires any intellectual property rights under this
Agreement except the limited right to use set out in paragraph 5 above.
12. Neither party has an obligation under this Agreement to purchase any
service or item from the other party.
13. Neither party has an obligation under this Agreement to offer for sale
products using or incorporating the confidential information. The Discloser
may, at its sole discretion, offer such products for sale and may modify them
or discontinue sale at any time.
14. A Recipient shall adhere to the U.S. Export Administration Laws and
Regulations and shall not export or re-export any technical data or products
received from the Discloser or the direct product of such technical data to
any proscribed country listed in the U.S. Export Administration Regulations
unless properly authorized by the U.S. Government.
15. The parties do not intend that any agency or partnership relationship be
created between them by this Agreement.
16. All additions or modifications to this Agreement must be made in writing
and must be signed by both parties.
17. This Agreement is made under, and shall be construed according to the
laws of the Republic of Singapore.
HEWLETT-PACKARD SINGAPORE (PRIVATE) LTD
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(Division Name)
20, GUL WAY,
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XXXXXXXXX 000000, XXXXXXXXX,
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(Address)
By ---------------------------------------------------------------------------
(Functional Manager's Signature)
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(Printed Manager's Name)
SUPPLY MANUFACTURING MANAGER
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(Printed Manager's Title)
PARTICIPANT
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(Company Name)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Address)
By
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(Authorized Signature)
------------------------------------------------------------------------------
(Printed Signatory's Name)
------------------------------------------------------------------------------
(Printed Signatory's Title)
