1
EXHIBIT 10.18
MASTER MANUFACTURING AGREEMENT
THIS MASTER MANUFACTURING AGREEMENT (this "Agreement"), effective as of March 8,
1999 (the "Effective Date"), is entered into by and between Ericsson Inc., a
Delaware corporation ("Ericsson"), and Xetel Corporation, a Delaware corporation
("Manufacturer").
WHEREAS, Ericsson desires to retain a qualified manufacturer to manufacture
various products for sales exclusively to Ericsson in accordance with the
specifications provided by Ericsson; and
WHEREAS, Ericsson and Manufacturer have agreed that the business structure
established pursuant to this Agreement will achieve the objectives contemplated
by the parties in establishing a flexible framework governing the standard terms
and conditions upon which Manufacturer will manufacture and sell to Ericsson,
and Ericsson will purchase from Manufacturer, such products as may be mutually
agreed upon by the parties from time to time.
NOW, THEREFORE, Ericsson and Manufacturer hereby agree as follows:
1. Scope of Agreement. From time to time during the term of this
Agreement, Manufacturer will (i) manufacture exclusively for Ericsson
such products (the "Products") as may be requested by Ericsson, and
(ii) sell the Products exclusively to Ericsson, all in accordance with
the terms and conditions of this Agreement (including the terms and
conditions of the applicable statements of work executed by the parties
(each, a "Statement of Work")).
2. Term. The term of this Agreement will commence on the Effective Date
and will continue for a period of three (3) years, unless sooner
terminated or further extended in accordance with the provisions
hereof. This Agreement will automatically extend for successive one (1)
year periods unless either party provides to the other party a written
notice of termination no less than ninety (90) days prior to the
expiration of the then existing term. Notwithstanding the expiration or
termination of this Agreement for any reason, each Statement of Work
entered into prior to the date of such expiration or termination will
remain in full force and effect in accordance with the provisions
thereof, including each of the provisions of this Agreement
incorporated by reference into such Statement of Work.
3. Statement of Work. From time to time, the parties may execute a
Statement of Work to define the Product to be manufactured and sold by
Manufacturer exclusively to Ericsson, subject to the terms and
conditions of this Agreement. Each Statement of Work will, at a
minimum, include the following:
(a) A reference to this Agreement, which reference will be deemed
to incorporate all applicable provisions of this Agreement.
(b) The term of the Statement of Work.
(c) A description of the each Product to be manufactured and
provided by Manufacturer to Ericsson pursuant to the Statement
of Work, including, but not limited to, the functional and
technical specifications of such Product for the manufacturing
and testing of the Product.
(d) The purchase price to be paid to Manufacturer by Ericsson for
each Product to be purchased by Ericsson, including the
applicable discounts, based upon a forecasted (not committed)
annual aggregate volume of Products which may be purchased by
Ericsson hereunder that may be different in assemblies, but
are similar enough in nature to allow manufacturer and
Ericsson to benefit from the economy of scale.
--------------------------------------------------------------------------------
Page 1 of 9
2
(e) Any additional provisions applicable to the Products provided
under that Statement of Work that are not otherwise set forth
in this Agreement or that are exceptions to the provisions
set forth in this Agreement.
A form of statement of work is attached hereto as Exhibit A. No
Statement of Work will become effective until it has been executed by
an authorized representative of both Manufacturer and Ericsson.
4. CONFLICTS. In the event of any express conflict or inconsistency
between the provisions of this Agreement and the provisions of any
Statement of Work, the provisions of this Agreement will control with
respect to the interpretation of that Statement of Work.
5. ORDERS AND DELIVERY.
(a) Ericsson may order Products for delivery hereunder on
Ericsson's standard purchase. Each order will identify the
type of Product ordered, quantity, date for delivery, and the
location to which the Product is to be delivered. Any
purchase order issued by Ericsson hereunder will be deemed
accepted by Manufacturer and binding on the parties unless
Manufacturer provides Ericsson a written notice of rejection
of such purchase order, together with a reasonable
explanation for such rejection, within five (5) business days
following Manufacturer's receipt of such purchase order.
Manufacturer will use its commercially best efforts to accept
each purchase order issued by Ericsson hereunder.
(b) Unless otherwise specifically agreed in writing (making
reference to superseding this Agreement) between the parties,
the terms and conditions of this Agreement shall govern any
accepted purchase order submitted by Ericsson,
notwithstanding any additional or contrary terms and
conditions of Ericsson's purchase order form or other writing
provided by either party.
(c) Time is of the essence with respect to Manufacturer's
performance of this Agreement. Manufacturer will deliver the
Products to Ericsson on the scheduled delivery date set forth
in the applicable purchase order issued by Ericsson and
accepted by Manufacturer. In the event of any actual delay in
Manufacturer's performance hereunder, Manufacturer will give
written notice thereof to Ericsson as soon as possible of any
delay in shipment, describing the cause, effect, and duration
of such delay and thereafter will give prompt written notice
to Ericsson of any changes to such conditions.
(d) Unless otherwise mutually agreed in writing by the parties
(in the applicable Statement of Work or otherwise),
Manufacturer will deliver F.O.B. Ericsson's designated
delivery address in Richardson, Texas.
(e) Unless otherwise mutually agreed in writing by the parties
(in the applicable Statement of Work or otherwise), title and
risk of loss or damage to the Products will pass to Ericsson
upon Manufacturer's delivery of the Products to the
designated delivery address in Richardson, Texas.
6. COMMUNICATION OF SUPPLY ISSUES.
(a) For the purpose of facilitating the planning of demands for
components and other resources, Ericsson will provide a
monthly forecast of demand for the Products specified in the
applicable Statement of Work. Such forecast will cover demand
for the then current month plus next five months on a rolling
basis. Each such forecast will be made by Ericsson in good
faith, but is an estimate only and does not create or imply
any commitment upon Ericsson to issue purchase orders for
such forecast amounts. Any compensation for
--------------------------------------------------------------------------------
Page 2 of 9
3
deviations in the actual quantities ordered from the forecast
is only allowed as specified in Section 12 of this Agreement.
(b) Manufacturer will at all times ensure that it has the overall
capacity as regards production resources, such as equipment,
labor and components to allow it to make deliveries up to the
volumes being included in the applicable forecast.
Manufacturer will immediately inform Ericsson of any supply
issues that may prevent it from delivering quantities as
ordered, forecast or indicated in discussions regarding long
term manufacturing plans.
7. PACKAGING AND PACKING. Unless otherwise instructed in writing by
Ericsson, Manufacturer will affixed the Products purchased by Ericsson
from Manufacturer hereunder with the logo, xxxx or faceplate provided
by Ericsson; provided that any such logo, xxxx or faceplate does not
affect the form, fit or function of the Products. Any Ericsson logo,
xxxx or faceplate and any other Ericsson trademark, trade dress,
insignia or material containing Ericsson's marks shall be used by
Manufacturer solely for the purposes of this Agreement and shall be
placed only on the Products covered by Ericsson's purchase orders.
Manufacturer will be responsible for the packaging of each Product.
Such packaging shall be consistent with industry standards and such
requirements as may be prescribed by Ericsson from time to time.
Any additional costs which are incurred by Manufacturer due to
special Ericsson requirements will be invoiced to and paid for by
Ericsson; provided that such cost will be subject to Ericsson's prior
written approval. Unless otherwise specifically instructed in writing
by Ericsson, Manufacturer will remove all Manufacturer trademarks and
other non-Ericsson marks from the Products so that the Products may be
marketed by Ericsson solely as its private label Products.
8. PRICE AND PAYMENT.
(a) Ericsson will pay to Manufacturer such price for each Product
as set forth in the applicable Statement of Work. Pricing for
manufacturing and test (per specifications set forth in the
applicable Statement of Work) will be based upon an annual
estimate of quantities of the Products to be purchased. The
annual estimate will be based upon an aggregate volume
combining forecasted quantities of all Products that are
similar in both components and manufacturing processes.
Manufacturer agrees that pricing is based upon such
established estimate. If at any time during the term of this
Agreement Ericsson determines that volumes will be at a
different level, pricing will be adjusted as indicated in the
applicable Statement of Work. Both parties will use their best
efforts to achieve additional price reductions in relation to
the prices existing at the time of the execution of this
Agreement and the applicable Statement of Work. Any such price
reduction will be done without endangering Ericsson's
requirements relating to quality, lead time, specifications
and other requirements set forth in the applicable Statement
of Work. Manufacturer and Ericsson will execute a revised
Statement of Work to change the applicable pricing as price
reductions become available.
(b) Manufacturer will invoice Ericsson upon shipment by
Manufacturer. Invoices are due and payable thirty (30) days
from date of receipt. The amount which shall be paid by
Ericsson under this Agreement does not include any state or
local sales or use taxes, duties, levies or
governmentally-imposed fees, however designated (including,
but not limited to, value-added, property, sales, transfer,
use, privilege, excise or similar taxes or import duties or
fees), which are the responsibility of Ericsson and which may
be levied directly on the sale, provision or use of the
Products. Ericsson shall promptly pay any such taxes, duties,
levies or fees (or reimburse Manufacturer therefor). With
respect to state or local sales or use taxes, Ericsson may
furnish Manufacturer with an exemption certificate. Other than
as set forth herein, all other taxes of every nature and kind,
including without limitation franchises, net or gross income,
license, occupation, or property taxes, shall be the
responsibility of Manufacturer and Ericsson shall have no
obligation to Manufacturer therefor.
--------------------------------------------------------------------------------
Page 3 of 9
4
9. ACCESS TO WORK, DATA AND DOCUMENTATION.
(a) All data and documentation generated in connection with this Agreement
by Manufacturer and its subcontractors, including without limitation
all data and documentation relating to requirements, specification,
design, and test, shall be subject to examination, evaluation, and
inspection by Ericsson at reasonable times during performance under
this Agreement, as requested by Ericsson or its authorized
representative. For a period of three (3) years after performance is
completed, and to the extent that such data and documentation are of a
type normally retained by Manufacturer and are not deliverable to
Ericsson under this Agreement, such data and documentation shall
continue to be made available by Manufacturer for such purposes, as
requested by Ericsson.
(b) All work in process under this Agreement shall be subject to
observation and inspection by Ericsson at reasonable times during
performance, as requested by Ericsson, and Ericsson shall have access
for such purpose to the premises at which such work is being performed
during normal business hours. The Manufacturer shall establish and
maintain an inspection system relating to its performance under this
Agreement. The Manufacturer shall provide reasonable facilities for
use by Ericsson in connection with such activities, and the Ericsson
representative shall comply with applicable work rules and regulations
in effect at the premises where such activities are conducted.
(c) Any defects or deficiencies observed by Ericsson in connection with
the activities under subsections (a) above, and reported to the
Manufacturer, shall be corrected or remedied promptly by and at the
expense of Manufacturer.
(d) No Ericsson acquiescence in or failure to notice or report defects or
deficiencies in such data and documentation and work shall constitute
a waiver or modification of Manufacturer's obligations under this
Agreement.
10. ERICSSON MATERIALS. From time to time, Ericsson may provide such materials
and/or equipment (collectively, the "Ericsson Materials") to Manufacturer
as may be deemed appropriate by Ericsson for the manufacturing of the
Products pursuant to a Statement of Work. In such event, Manufacturer
hereby agrees as follows:
(a) The Ericsson Materials will be Ericsson's exclusive property, and
Manufacturer will not commingle any the Ericsson Materials with any
other materials.
(b) Manufacturer will use the Ericsson Materials only as instructed by
Ericsson for the manufacturing of the Products for Ericsson hereunder.
(c) Manufacturer will maintain the Ericsson Materials as instructed by
Ericsson and will be responsible for any repairs or replacement costs
associated with improper handling or use.
(d) Manufacturer will not alter the Ericsson Materials without Ericsson's
prior written approval.
(e) Manufacturer will return the Ericsson Materials in the same condition
as received, normal wear and tear excepted.
(f) Manufacturer will be responsible for any loss or damage to the
Ericsson Materials while the Ericsson Materials are in Manufacturer's
possession or control.
11. ERICSSON CHANGES. Changes in product configuration may be made by Ericsson
on a no charge basis if given in writing by Ericsson not less than sixty
(60) days prior to the scheduled
--------------------------------------------------------------------------------
Page 4 of 9
5
date of shipment. In the event Ericsson changes Product configuration
or specifications, the parties will work together in good faith and
mutually agree in writing upon the term and conditions with respect to
any such change in Product configuration or specifications.
12. CANCELLATION AND RESCHEDULING. From time to time, Ericsson may, by
providing Manufacturer with a written request ("Change Request"),
cancel, reschedule or change the delivery of the Products, and
Manufacturer will comply with such request, as long as any such
cancellation, rescheduling or change is within the following
guidelines:
Increase (+)/Decreases(-)
Allowed (as a percentage of
Time Frame current scheduled quantity)
Change Request is sent less than thirty (30) +20%, -0%
days prior to the scheduled delivery
Change Request is sent between thirty (30) +50%, -100%
and sixty (60) days prior to the scheduled
delivery
Change Request is sent at over sixty days All changes allowed (+/-
prior to the scheduled delivery 100%)
In the event of any change beyond the range allowed as set forth above,
Manufacturer will work together with Ericsson in good faith to
accommodate such change on a case by case basis. In the event and to
the extent of any cancellation beyond the range allowed as set forth
above and agreed by Manufacturer, Manufacturer may claim, as its sole
and exclusive remedy, compensation for (i) the actual costs of the
Ericsson specific components then already purchased by Manufacturer
(that Manufacturer could not use for any other products), (ii) the
direct labor costs of manufacturing up to the point of cancellation,
and (iii) any disposal costs associated with the applicable work in
progress; provided that Manufacturer will use its best efforts to
mitigate any an all such costs. In addition, in the event of any
cancellation or rescheduling by Ericsson, whether within or beyond the
range allowed as set forth above, Ericsson will be responsible for all
non-cancelable or non-returnable materials to the extent that
Manufacturer then already ordered or purchased such materials to
support Ericsson's forecast for the Products as set forth in Section
6(a); provided that Manufacturer will use its best efforts to mitigate
any and all such costs.
13. ACCEPTANCE. All Products ordered pursuant to this Agreement shall be
subject to inspection by Ericsson after delivery to determine
conformity with Ericsson's purchase order and the applicable
specifications. Ericsson shall have a period of thirty (30) days
following arrival of Product at the delivery destination specified by
Ericsson within which to test the Product for conformity with
Ericsson's purchase order and the applicable specifications. Ericsson
shall promptly notify Manufacturer in writing of any discrepancy or
rejection. Final acceptance of Products, or their use prior to final
acceptance pending correction of deficiencies by Manufacturer, shall in
no event be deemed a waiver by Ericsson of any rights or remedies as
provided for in any other provisions of this Agreement.
14. QUALITY ASSURANCE.
(a) The Manufacturer will have a quality system for the
Products that is documented and measured against applicable
standards (e.g., ISO 9001). Manufacturer agrees to notify
Ericsson's quality assurance personnel of any material changes
known to Manufacturer which affect Ericsson's received Product.
(b) As a part of Ericsson's quality assurance program, Ericsson may
request Manufacturer to purchase components or supplies from
specific suppliers, in which event Manufacturer will purchase the
components or supplies from such suppliers. It is Manufacturer's
--------------------------------------------------------------------------------
Page 5 Of 9
6
responsibility to deliver the Products manufactured free from
defects in workmanship according to the specifications set forth
in the applicable Statement of Work. Manufacturer will use the
components from third party suppliers specified by Ericsson in its
documentation. Manufacturer is responsible for ensuring that such
components are received as specified, which will include a visual
inspection to ensure that the Products meet Ericsson's
specifications, including mechanical drawings.
(c) Manufacturer will at all times maintain effective programs for
defect detection and for corrective and preventive actions, which
programs will be fully disclosed to Ericsson. It is the
responsibility of Manufacturer to employ any means it deems
appropriate, including without limitation development of
in-circuit testing capability, to improve its internal yields so
that it can deliver the contracted amount of Products to Ericsson
for final test and burn-in. Should Manufacturer detect a problem
that may affect the quality or reliability any of the Products,
Manufacturer will immediately notify Ericsson in writing of such
problem. Such notice will include the nature of the problem,
actions taken and to be taken, expected outcome, and other
recommendations related to the problem.
(d) If Ericsson discovers any failures during final test and burn-in
that are attributable to defects in the manufacturing process, the
Products will be returned to Manufacturer for repair or
replacement at no additional cost to Ericsson. If Ericsson
determines that Manufacturer is not meeting the requirements and
specifications set forth in the applicable Statement of Work,
Ericsson may request a formal written corrective Action response,
and Manufacturer will respond within three (3) working days with a
plan for corrective actions to be taken.
(e) Ericsson will be entitled (alone or accompanied by its customers)
at any time and at no charge by Manufacturer to make announced or,
if reasonably required, unannounced inspections of Manufacturer's
premises (including without limitation the manufacturing
facilities) during normal business hours with respect to the
verification of processes and quality systems, quality control of
products, or other inspections and/or audits relating to quality
and delivery performance.
(f) As part of the quality assurance, Manufacturer will purchase
components specified in the documentation provided by Ericsson for
incorporation of such components into the Products. Manufacture
will purchase such components only from such Ericsson approved
suppliers as identified in the documentation provided by Ericsson.
Any deviation from the specifications must be requested in writing
by Manufacturer and approved in writing by Ericsson's Design and
Procurement organizations. If no supplier is specified in the
documentation, Manufacturer may select its own preferred supplier;
provided that Manufacturer will ensure that the Products will
conform to the specifications set forth in the applicable
Statement of Work. In addition, Manufacturer will ensure that the
suppliers of such components are properly monitored and that such
components are inspected to be in conformance with the
specifications set forth in the applicable Statement of Work and
the applicable industry standards. Any such inspection by
Manufacturer will be documented by Manufacturer for Ericsson's
future review and audit. Upon Ericsson's request, Manufacturer
will implement and maintain supplier development activities that
contribute to a continuous improvement of the quality and
reliability of the components. Ericsson will work with the
approved suppliers to allow Manufacturer to purchase components at
Ericsson's contract prices. Manufacturer will reference Ericsson
product numbers with such suppliers to ensure that Ericsson volume
commitments are credited for the purchase. Ericsson reserves the
right to contract with its component suppliers directly to provide
just-in-time delivery of the components to Manufacturer in an
effort to reduce costs and lead times.
(g) As soon as practicable, Ericsson and Manufacturer will work
together in good faith and mutually agree upon the performance
standards which Manufacturer will meet or exceed in
-------------------------------------------------------------------------------
Page 6 of 9
7
its performance of this Agreement. In the event that Manufacturer
fails to meet any of such performance standards and does not cure
such failure within a reasonable time, Ericsson may, by providing
Manufacturer with an advance written notice, terminate this
Agreement without further obligations or liabilities.
15. WARRANTY.
(a) Manufacturer warrants that each Product provided hereunder shall
be new, and for a period of ninety (90) days following Ericsson's
acceptance of the Product (the "Warranty Period"), be free from
defects in material and workmanship, and in compliance with the
applicable specifications. The Warranty Period for repaired
Products returned to Ericsson shall be the longer of (1) the
balance of the original Warranty Period (2) sixty (60) days.
(b) In the event of any breach of the warranties set forth herein, and
notwithstanding any payments or inspections or acceptance,
Manufacturer, at its option, will (i) replace, repair, or correct
the defective Product at Manufacturer's sole expense including
without limitation all shipment and insurance costs and any costs
of removal and reinstallation or (ii) if requested by Ericsson,
refund to Ericsson all amounts received by Manufacturer with
respect to such Product. All replacements, repairs, and
corrections shall be effected promptly by Manufacturer, the
schedule for which shall conform to Ericsson's reasonable use
requirements for the Product. In the event a substitute for the
Product is available during the periods required for such
replacement, repair or correction, Manufacturer shall provide such
substitutes for Ericsson's use at no cost to Ericsson. Repairs or
corrections shall be returned to Manufacturer as determined by
Ericsson. Return to Manufacturer shall be in accordance with
instructions issued by Manufacturer immediately upon receipt of
notice of Ericsson's election to return. In the absence of
instructions from Manufacturer, Ericsson may ship by such means
and on such terms, including valuation and insurance, as it deems
appropriate.
(c) In the event that the Products require repair or return, (i)
Ericsson will bear all risk of loss of or damage to the Products
when Ericsson sends the Products to Manufacturer for repair or
replacement, and (ii) Manufacturer will bear all risk of loss of
or damage to the Products when Manufacturer returns the Products
to Ericsson, or its customers after replacement, repair or
correction.
(d) EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT,
THERE ARE NO OTHER WARRANTIES OF THE PRODUCTS AND SERVICES,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
16. COMPLIANCE WITH LAWS. Manufacturer shall give all requisite notices to
the proper authorities, obtain all official inspections, permits and
licenses made necessary by the work under this Agreement and shall
comply with all laws, rules and regulations pertaining to such work. If
requested, Manufacturer shall provide Ericsson with any required
inspection approval certificates. If Manufacturer performs any work
contrary to or not in conformity with such laws, rules and
regulations, Manufacturer shall bear all costs arising therefrom.
17. CHANGEOVER. In the event of termination or expiration of this Agreement
or any Statement of Work for any reason, Manufacturer shall, at no
additional charge, effect an orderly and efficient transition of the
work performed hereunder to Ericsson or to a successor manufacturer
during a transition period to be specified by Ericsson.
18. ASSIGNMENT. Manufacturer shall not assign or subcontract this Agreement
or any of its duties or obligations hereunder without the prior written
consent of Ericsson. Subject to the provisions in the
--------------------------------------------------------------------------------
Page 7 of 9
8
preceding sentence, this Agreement shall be binding upon the heirs,
successors, and assigns of the parties.
19. FORCE MAJEURE. Either party shall be excused from performance hereunder
caused by reasons beyond such party's reasonable control, provided such
party immediately notifies the other of the reason for the delay and
the anticipated effect. Performance shall be delayed no longer than the
period of force majeure.
20. TERMINATION. Either party may terminate this Agreement immediately upon
notice to the other party if such party becomes insolvent, any
proceeding under the bankruptcy or insolvency laws is brought by or
against such party or a receiver to trustee is appointed for such
party.
21. Notice. Any notices pursuant to this Agreement shall be in writing and
shall be sent to the parties at the following address or at such other
addresses as shall be specified by the parties by like notice:
If to Manufacture: If to Ericsson:
Xetel Corporation Ericsson Inc.
000 Xxxxx Xxx 000 X. Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000 Xxxxxxxxxx, Xxxxx 00000
Attention: General Manager Attention: Procurement Mgr.,
Components Div.
Fax: Fax: (000) 000-0000
----------------------
With a copy to:
Ericsson Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Legal Department
Fax: (000) 000-0000
Such notices or other communications shall be deemed to have been duly
given and received (i) on the day of sending if sent by personal
delivery, cable, telegram, facsimile transmission or telex, (ii) on the
next business day after the day of sending if sent by Federal Express
or other similar express delivery service, or (iii) on the fifth
calendar day after the day of sending if sent by registered or
certified mail (return receipt requested).
22. Disputes. Any disputes arising under or relating to this Agreement
shall be resolved in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. Arbitration shall be held in
Dallas, Texas, or such other place as the parties may agree and shall
include an award of attorneys' fees (and the amount of such fees) to
the prevailing party. The arbitrator's award shall be final and
binding, and judgement thereon may be entered in any court having
jurisdiction over the party against which enforcement is sought.
23. Enforcement. In addition to any rights or remedies available at law or
in equity for breach of this Agreement, the non-breaching party will
be entitled to enforcement of the other's obligations by injunction.
24. Limitation of Liability. In no event shall either party be liable for
any special, incidental, indirect or consequential damages, including,
without limitation, loss of business or loss profit in connection with
this Agreement, whether based on action or claim in contract, equity,
negligence, intended conduct, tort or otherwise, even if such damages
are foreseeable. The provisions of this Section will survive the
expiration or termination of this Agreement or any Statement of Work
for any reason.
--------------------------------------------------------------------------------
Page 8 of 9
9
25. Media Releases. All media releases, public announcements and public
disclosures by either party relating to this Agreement or any Statement
of Work or the subject matter of this Agreement or any Statement of
Work, including, without limitation, promotional or marketing material
but not including any announcement intended solely for internal
distribution or any disclosure required by legal, accounting or
regulatory requirements beyond the reasonable control of the party,
will be coordinated with and subject to the final approval by both
parties prior to release.
26. Relationship. The relationship between Ericsson and Manufacturer is
that of independent Manufacturer. This Agreement does not create any
employer-employee, agency, joint venture, or partnership relationship
between Ericsson and Manufacturer. Manufacturer shall exercise control
over the means and manner of the performance of services pursuant to
this Agreement. No employee, agent, or assistant of Manufacturer, or
other person participating on Manufacturer's behalf, shall be
considered an employee of Ericsson or entitled to any employment fringe
benefits of Ericsson.
27. Miscellaneous. This Agreement shall be governed by the laws of the
State of Texas, other than the choice of law rules. The provisions of
this Agreement shall be severable, and if any provisions shall be held
unenforceable the remaining provisions shall remain in full force and
effect. Expiration or termination of this Agreement for any reason
shall not release either party from any liability or obligation set
forth in this Agreement which (i) the parties have expressly agreed
will survive any such expiration or termination, or (ii) remain to be
performed or by their nature would be intended to be applicable
following such expiration or termination. This Agreement and each
Statement of Work executed by both parties constitute the entire
agreement between Manufacturer and Ericsson with respect to the subject
matter hereof, and there are no understandings or agreements relative
hereto that are not fully expressed herein. No change, waiver or
discharge will be valid unless in writing signed by an authorized
representative of the party against whom such change, waiver or
discharge is sought to be enforced. Each party, by executing this
Agreement, represents and warrants that all necessary corporate or
other authority to execute the Agreement has been obtained and that the
person signing the Agreement is authorized to do so and thereby bind
that party.
IN WITNESS WHEREOF, the parties to this Agreement have caused their authorized
representatives to execute this Agreement as of the Effective Date.
ERICSSON INC. XETEL CORPORATION
By: /s/ [ILLEGIBLE] By: /s/ XXXXX XXXXXX
---------------------------- ----------------------------
Name: [ILLEGIBLE] Name: Xxxxx Xxxxxx
-------------------------- --------------------------
Title: V.P., Energy Systems Title: General Manager
------------------------- -------------------------
--------------------------------------------------------------------------------
Page 9 of 9
