EXHIBIT 10.2
[CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED
AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
PRODUCTION PROCUREMENT AGREEMENT # RMSS-ODI-96-01-0
This is an Agreement, dated as of October 25, 1996, by and between International
Business Machines Corporation (IBM), a New York corporation and Overland Data,
Incorporated (Supplier), a California corporation.
Statement of Intent
It is IBM's intention to do business with Suppliers who remain competitive in
providing IBM with leading-edge technology at favorable prices on acceptable
terms and conditions. Accordingly, from time to time, IBM intends to assess
Suppliers' competitiveness in terms of pricing, continuity of supply, quality
improvement, and cost reduction, and to notify Supplier if IBM determines that
the Supplier is not competitive with its fully qualified competitors so that the
Supplier can remedy the situation.
1.0 Product:
In return for the prices paid by IBM under this Agreement, Supplier shall
provide IBM with materials, products, components, code, documentation, spare
parts and/or related services (Products) according to the terms and conditions
of the Product Specification and Price List (PSPL) which is an Attachment to
this Agreement and the Work Authorizations issued under Section 3.0 below.
2.0 Term and Termination:
This Agreement shall commence on the date of execution by the parties and shall
continue in full force and effect for a period of five years unless earlier
terminated as provided in this Agreement. Either party may terminate this
Agreement for material breach of the other party upon sixty (60) days written
notice.
3.0 Work Authorization:
Only a Work Authorization issued by IBM or its subsidiaries (i.e. a Purchase
Order, or other document or transaction defined in the PSPL as a Work
Authorization), in either electronic or hard copy form, provides authorization
to the Supplier to perform any work or produce any products under this
Agreement. Only procurement personnel of IBM or its subsidiaries have the
authority to issue Work Authorizations or direct work activity under the terms
and conditions of this Agreement.
4.0 [*]
In accordance with the IBM/Overland Data Inc. Patent Cross License Agreement
effective January 1, 1996, [*]
5.0 Supplier Actions:
5.1 Product Modifications: No changes of any kind shall be made by
Supplier in the form, fit or function of Products without IBM's prior
written approval.
Any safety changes or concerns brought up on their product must be reported
to IBM within two working days.
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5.2 Withdrawal of Products: Supplier shall notify IBM nine months prior to
a withdrawal of any Product(s). IBM will then have six months to place
orders and Supplier shall deliver such Product(s) before the withdrawal
date or upon mutually agreed upon delivery terms.
5.3 [*]
5.4 Exclusivity: The 3490E (Models E & F) "Extended Sense"
functionality, as defined by IBM, will be exclusive to IBM and cannot be
used on Supplier's other 3490E products. The "Extended Sense" firmware
provided to IBM will include the existing modes and emulation already
available on the Supplier's 3490E general product firmware. IBM and
Supplier agree to mutually define a "subset" of the 3490E (Models E & F)
"Extended Sense" functionality (to be displayed in the 3490E Model F SCSI
Specification) that will be available to Supplier for use on Supplier's
other 3490E Products.
5.5 Future Development: Supplier will make all necessary microcode
changes defined by IBM to support a New "Super Extended Length" 3490E
Cartridge. These microcode changes shall be exclusive to IBM for a period
of six (6) months following General Availability (GA) of the "Super
Extended Length" 3490E Cartridge and will be provided to IBM at no
charge. The GA of the "Super Extended Length" 3490E Cartridge shall be
contingent upon the successful completion of a mutual agreed upon
verification test. Supplier will not disclose or make available these new
functions available to any other OEM or VAR customer until the end of
this exclusive period. Supplier agrees to buy the "Super Extended Length"
Cartridge from IBM in quantities to ship with suppliers drive units. The
terms governing this purchase shall be defined in a future separate
agreement to be executed by the parties. The Supplier intends that the
IBM "Super Extended Length" Cartridge will be the Supplier's published
certified media of choice.
6.0 Supplier Representations/Warranties:
6.1 Representations and Warranties: Supplier represents and warrants:
(i) it has the right to enter into this Agreement;
(ii) Supplier's performance of this Agreement will not violate the
terms of any license, contract, note or other obligation to which
Supplier is a party, or any statute, law, regulation or ordinance to
which Supplier is subject, including, without limitation, all health
and safety and environmental statutes, laws, regulations and
ordinances;
(iii) no claim, lien, or action is pending or threatened against
Supplier or
its suppliers, subsidiaries, affiliates or parent company which would
interfere with IBM's, its subsidiaries', distributors' or customers'
use of the Products;
(iv) the Products do not infringe any patent, trademark, copyright or
other intellectual property rights of a third party:
(v) none of the Products contain nor are any of the Products
manufactured using ozone depleting substances including, without
limitation, chloroflurocarbons, halons, methyl chloroform and carbon
tetrachloride;
(vi) each of the Products is safe for its intended use, and
(vii) all Products provided to IBM under this Agreement are new and do
not contain anything used or reconditioned.
6.2 Product Warranty: The Supplier warrants that all Products provided to
IBM are free from defects in design (except for designs provided by IBM),
material and workmanship, and will conform to all of
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Supplier's Product representations and specifications, the representations
in Section 6.1 and in Attachment RMSS-ODI-96-01-A Section 2.1 and
agreed-upon specifications. THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
7.0 Intellectual Property Rights and Indemnification:
Supplier shall own or have all rights and licenses under all U.S. and foreign
copyrights and patents applicable to the Products, and Supplier grants IBM all
rights and licenses necessary for IBM and its subsidiaries to exercise its
rights under this Agreement. Supplier agrees to defend, hold harmless, and
indemnify IBM from and against any claim that the Product infringes any
intellectual property rights or any claim arising from the failure of Supplier
to comply with its representations or warranties under this Agreement. If such
a claim of infringement is made, the Supplier shall obtain for IBM the right to
continue to use and market the Product or replace it with noninfringing product.
8.0 Trademarks and Trade Names:
Neither party may use any of the other party's or its subsidiaries' trademarks,
trade names or brand names without the other party's written consent.
9.0 Limitation of Liability
In no event will either party be liable for any lost revenue, lost profits or
consequential, incidental or punitive damages, even if advised in advance of the
possibility of such damages. In no event shall IBM or its subsidiaries be
liable to Supplier
(i) under a Work Authorization for an amount greater than the amount due
and unpaid under such Work Authorization, or
(ii) under this Agreement for an amount greater than the amount due and
unpaid under all outstanding Work Authorizations hereunder, as applicable.
This limitation shall not apply to any liability of Supplier or IBM under
the sections dealing with indemnification, intellectual property rights,
and any confidentiality agreement entered into between Supplier and IBM.
10.0 General:
10.1 Confidentiality: IBM and Supplier agree that the pricing terms of
this Agreement are confidential. All other exchanges of confidential
information between the parties pursuant to this Agreement shall be subject
to and governed by AECI # TCU-0785 and AECI # TCU-1785 currently in place.
10.2 No Agent: Supplier is an independent contractor and is not an agent
of IBM for any purpose whatsoever. Each party is solely responsible for
the acts of its employees and agents, including any negligent acts.
10.3 Choice of Law, Waiver of Jury Trial: This Agreement shall be governed
by the substantive laws of New York, without regard to its principles of
conflicts of laws. The parties expressly waive any right they may have to a
jury trial regarding disputes arising out of or related to this Agreement.
10.4 Force Majeure: Neither IBM nor Supplier shall be in default or liable
for any delay or failure to comply with this Agreement due to an act of
nature, public enemy, government action, or freight
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embargo beyond the control of the defaulting party, and the defaulting
party shall provide the non-defaulting party immediate notice of any such
anticipated delay or failure of compliance; provided, however, that any
such act shall not relieve the defaulting party's obligations hereunder and
such party hereby agrees to perform its obligations as soon as practicable
after the conditions causing such delay or failure have subsided.
10.5 Assignment: IBM and Supplier shall not assign their rights or
delegate or subcontract their duties under this Agreement without the prior
written consent of the other party. Any attempt to do so shall be void and
of no effect.
10.6 Rights of Subsidiaries: IBM and its subsidiaries may exercise any of
the rights under this Agreement.
10.7 Survival: The provisions set forth in Sections 6, 7, 8, 9, 10.3,
10.5, 10.6 and 10.7 shall survive and continue after any expiration,
termination or cancellation of this Agreement and shall remain in effect
until fulfilled, and apply to respective successors and permitted assigns.
10.8 Waiver: In order for a waiver to be effective under this Agreement,
it must be in writing signed by the party so waiving its rights. The
waiver by either party of any instance of the other party's noncompliance
with any obligation or responsibility herein shall not be deemed a waiver
of subsequent instances.
10.9 Severability: If any Section or Subsection of the Agreement,
including this Attachment, is found by competent judicial authority to be
invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of any such Section or Subsection in every other respect
and the remainder of this Agreement shall continue in effect.
10.10 No Publicity: Supplier may reference the fact that IBM is a customer
of the Supplier with IBM's prior written consent. The Supplier agrees not
to disclose the specific terms of the Agreement (including this
Attachment), except as may be required by law or government regulation.
10.11 Entire Agreement and Order of Precedence: This Agreement and its
PSPL, together with Work Authorizations issued hereunder, constitute the
entire Agreement between the parties with respect to the subject matter
hereof and supersedes any prior or contemporaneous communications and
understandings, whether written or oral, between the parties with respect
to the subject matter hereof. In the event of any conflict in these
various documents, the order of precedence will be:
(i) the quantity, price, payment and delivery terms of a Work
Authorization;
(ii) the PSPL;
(iii) this Agreement; and
(iv) the remaining terms of the Work Authorization.
10.12 Amendments: This Agreement may only be amended in writing signed by
authorized representatives of each of the parties. To be effective, such
amendment must specifically reference this Agreement.
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10.13 Counter Parts: This Agreement may be signed in one or more
counterparts, each of which shall be deemed to be an original and all of
which when taken together shall constitute the same agreement. Any signed
copy of this Agreement made by reliable means (e.g. photocopy or facsimile)
is considered an original.
IN WITNESS WHEREOF, the parties hereto have caused this Attachment to be signed
by their respective duly authorized representatives.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS
MACHINES CORPORATION OVERLAND DATA, INCORPORATED
/s/ Xxxxxxx X. Xxxxxxx 10/26/96 /s/ Xxxxx XxXxxxxxx 10/29/96
---------------------------------- -----------------------------------
Authorized Signature Date Authorized Signature Date
Xxxxxxx X. Xxxxxxx Xxxxx XxXxxxxxx
---------------------------------- -----------------------------------
Printed Name Printed Name
W.W. Matls Mgr - Tape President & CEO
---------------------------------- -----------------------------------
Title Title
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EXHIBIT 10.2 ATTACHMENT
PRODUCT SPECIFICATION & PRICE LIST ATTACHMENT # RMSS-ODI-96-01-A
TO PRODUCTION PROCUREMENT AGREEMENT # RMSS-ODI-96-01-0
This Product Specification & Price List Attachment # RMSS-ODI-96-01-A
(Attachment) incorporated under Agreement # RMSS-ODI-96-01-0 ("Agreement") is
entered into by and between Overland Data, Incorporated ("Supplier") and
International Business Machines Corporation (IBM). All terms of the Agreement,
including the defined terms, shall apply to this Attachment unless stated
otherwise in the Attachment The term of this Attachment shall be from October
25, 1996 to October 25, 2001 (Attachment-Term).
1.0 PRODUCT DESCRIPTION
The Products are 3490E class 1/2" tape drives. The Product part numbers are set
forth in Subsection 3.1. The Product is further described by the requirements
set forth in the following specifications which are incorporated herein by
reference:
- IBM Purchase Specification for 3490E Model Fxx Tape Drive - P/N 05H6880
- 3490E Model Fxx SCSI-2 Specification - P/N 05H6881
- Supplier Packaging and Materials Handling Specification # GA-219261-10.
2.0 PRODUCT REQUIREMENTS
2.1 Product Warranties: Notwithstanding anything to the contrary, Supplier
represents and warrants that at all times:
(i) for a period of [*] in accordance with the Products shall operate
in all specifications and requirements in this Attachment. Those
Products that do not conform to this or any Other Product warranties
shall, at IBM's option, be repaired or replaced (or the purchase price
paid shall be credited or refunded) by Supplier within [*] of IBM's
notification to Supplier, and Supplier agrees to reimburse IBM for
all costs associated with such repair or replacement of Products;
(ii) for Products that have a defect rate of [*](Epidemic Defect
Rate), Supplier shall, at IBM's option and within 5 Days of IBM's
notification to Supplier, repair or replace all Products (or, if
IBM elects, the purchase price paid shall be credited or refunded)
and Supplier shall, at IBM's option, reimburse IBM for all costs
associated with such repair or replacement of Products of IBM, IBM
subsidiaries, and its and their distributors and end users; (iii)
Supplier shall, at IBM's option and within [*] of IBM's
notification to Supplier, repair or replace Products (or the
purchase price paid shall be credited or refunded) that are part of
products that IBM, in its discretion, has recalled or provided
other corrective actions for safety reasons associated with the
Products, and Supplier shall, at IBM's option, reimburse IBM for
all costs associated with such repair or replacement of Products of
IBM. IBM subsidiaries, and its and their distributors and end
users; (iv) any combination of the Products with other programs or
products do not infringe any patent of a third party; (v) Supplier
has, will maintain, and will submit to IBM, written evidence of the
certifications and approvals specified in this Attachment for all
Products, and that
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Supplier will affix all required labels regarding such certifications
and approvals on the appropriate area of each Product and packaging.
The warranties in this Subsection 2.1 shall be considered to be part of the
warranties in Subsection 6.1 of the Agreement and supplement any other
warranties in Section 6.0.
2.2 Product Field Support: In addition to the Product warranties, Supplier
shall provide the following services in support of the Product during the
warranty period as set forth in Subsection 2.1 above:
(1) support IBM on all end user telephone calls regarding the Product;
(2) support IBM regarding the determination of whether there is a
defect (patent or latent), error or other problem ("Defects") with the
Product; and
(3) isolate and promptly correct all Defects with the Products, and
provide such corrections to IBM in accordance with the parameters set
forth below (these parameters are "time of the essence"):
(a) for Defects that result in an emergency condition that causes
critical impact to IBM schedule or that makes performance or
continued performance of any feature or function impossible or
impractical ("Severity Level 1 Defect" or "XX0 Xxxxxx"), Supplier
shall use best efforts to provide corrections within [*] of the
earlier of Supplier discovering the SL1 Defect or being
informed of the SL1 Defect;
(b) for Defects that significantly affect an IBM schedule or
that make the performance or continued performance of any
feature or function difficult and that cannot easily be
circumvented or avoided on a temporary basis by the end user
("Severity Level 2 Defect" or "XX0 Xxxxxx"), Supplier shall use
best efforts to provide corrections [*] of the earlier of
Supplier discovering the SL2 Defect or being informed of the
SL2 Defect;
(c) for Defects that are not critical in that performance can be
continued without difficulty or loss of data by easy
circumvention or avoidance by the end user ("Severity Level 3
Defect" or "XX0 Xxxxxx"), Supplier shall use best efforts to
provide correction [*] of the earlier of Supplier discovering the
SL3 Defect or being informed of the SL3 Defect; and
(d) for Defects that are minor which can be easily avoided or
circumvented by the end user ("Severity Level 4 Defect" or "XX0
Xxxxxx"), Supplier shall use best efforts to provide corrections
[*] of the earlier of Supplier discovering the SL4 Defect or being
informed of the XX0 Xxxxxx.
(4) comply with requirements in paragraph 2.6 and requirements put
forth in attachment # RMSS-ODI-96-01-B from IBM Field Services related
to spare parts sourcing and pricing. (The attachment #
RMSS-ODI-96-01-B will be completed after the written approvals of the
Production Procurement Agreement # RMSS-ODI-96-01-0 and the Product
Specification and Price List Attachment # RMSS-ODI-96-01-A )
IBM has the right to withhold all payments due to Supplier upon notice to
Supplier of an SL1 or SL2 Defect, until such Defect is corrected to IBM's
satisfaction.
2.3 Product Certifications: The Products shall be delivered with proper
product certifications as defined in the IBM Purchase Specifications listed
in Section 1.0. IBM will be responsible for obtaining the NOM
certification.
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2.4 COO Product Certification: Supplier hereby certifies that the Products
purchased hereunder have the following country(ies) of origin. If there
are any changes to this information, Supplier will notify IBM by providing
a new country of origin certification signed by an authorized Supplier
representative before shipping any Products other than those with the
country of origin listed below for such Product. Supplier acknowledges
that IBM will rely upon this certification, and timely updates to it, in
making representations to IBM customers and to comply with various laws and
regulations. If any part number listed has more than one country of
origin, Supplier certifies that each country of origin is listed below, and
Supplier agrees to deliver to IBM, within thirty (30) days of signing and
within thirty (30) days prior to a sourcing origin change, instructions
regarding how IBM can distinguish each country of origin for part numbers
with more than one country of origin.
[*]
2.5 Compatibility Requirements: The Products shall be compatible with IBM's
system units, peripherals and operating systems as defined in the IBM
supplied "SCSI-2 Specification" and "Purchase Specification" listed in
Section 1.0.
2.6 Spare Parts Availability: Notwithstanding anything to the contrary,
Supplier shall maintain the capability to supply Spare Parts (i.e. the
entire Product or portions of the Product as described herein or as
subsequently described by IBM) during the term of this Attachment and for a
period of 5 years thereafter. Spare Parts supply and pricing beyond the
5 year period will be negotiated on a year to year basis by the Supplier
and IBM Field Service. Spare Parts which are portions of the Product
(Field Replacement Units (FRUS)) and their prices will be defined in the
Attachment #RMSS-ODI-96-01-B. Spare Parts ordering by IBM Field Service
will have the same terms as the Product defined in paragraph 4.0. Orders
for initial stocking by IBM Field Service will be discounted 10% from the
standard FRU price.
The Supplier shall not be required to provide "Code A" parts support to IBM
on a twenty-four (24) hours / seven (7) days a week basis. "Code A"
support requirements will be handled by a third party source defined by
IBM. Supplier shall provide spare parts on a routine basis to the defined
IBM "Code A" support third party at the same prices, terms and lead-times
provided IBM as a part of this agreement. Emergency orders submitted by
the defined IBM "Code A" support third party will be fulfilled by the
supplier within 24 hours of receipt of order on the next general business
day. Emergency orders will be at suppliers full list price.
3.0 PRICING
3.1 Product Pricing: Supplier shall make the Product available to IBM at the
pricing specified below. The pricing in this Subsection 3.1 below as expressed
in Work Authorizations ("WAS," i.e. written or electronic IBM purchase orders
or other electronic transactions that are expressly identified as an
authorization to perform work under the Agreement or this Attachment) shall be
the only charges due to the Supplier from IBM. Supplier warrants that the
pricing in Subsection 3.1 does not include sales taxes and that Supplier will
not include any sales taxes on any Products purchased by IBM.
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[*]
3.2 [*]
4.0 WORK AUTHORIZATION LOGISTICS
Supplier will deliver Products as specified in WAs. The agreed to lead-time
for IBM to issue WAs prior to delivery shall be 4 weeks. Supplier agrees
to cooperate and use best efforts for cases where IBM requests a
shorter lead-time. The following changes to Product order
quantities on existing WAs may be made by IBM without cost or
liability to IBM:
Product Product
Number of Days Prior to Quantity Quantity Cancellation
Scheduled Delivery Date Increase Decrease Charge
---------------------------------------------------------------------------
0 to 30 Calendar Days 0% 0% 0%
31 to 60 Calendar Days 25% 50% 0%
61 to 90 Calendar Days 50% 100% 0%
91 Plus Calendar Days 100% 100% 0%
IBM may provide a 12 month rolling estimated forecast for any quantities of
Product that may be required. THESE FORCASTS ARE FOR PLANNING PURPOSE ONLY AND
ARE NON-BINDING, IN NO EVENT SHALL THEY BE CONSTRUED AS A COMMITTMENT BY IBM TO
PURCHASE PRODUCTS.. IBM MAKES NO REPRESENTATION OR WARRANTY AS TO THE QUANTITY
OF PRODUCTS THAT IT WILL PURCHASE, IF ANY.
5.0 DELIVERY LOGISTICS
5.1 Delivery Point: All references to delivery as it applies to this
Attachment shall mean delivery to an IBM designated location that will be
further specified by IBM in a WA or separate letter.. The delivery point
shall be FOB Dock- Overland Data, San Diego, CA.
5.2 On-Time Delivery: Products and FRUs must be delivered no more than [*].
Time is of the essence. If Supplier cannot meet a scheduled delivery date,
Supplier shall promptly notify IBM of Supplier's revised delivery date and
IBM may, at its option, without limitation
(i) cancel Products not delivered without charge,
(ii) buy elsewhere and charge Supplier any cost differential,
(iii) charge the Supplier for any premium costs (including, without
limitation, shipping and handling costs) incurred as a result of the
late delivery and
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(iv) exercise all other remedies provided at law, in equity and in the
Agreement (including this Attachment).
5.3 Supplier agrees that the date of manufacture for all Products
purchased by IBM shall be less than [*] from the date of delivery.
6.0 COMMUNICATIONS
All communications between the parties shall be carried out through the
designated coordinators:
- All procurement, business and administrative communications between the
parties shall be conducted through the following "Business Coordinators":
IBM: Supplier:
------------------------------ -------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
IBM Corporation Overland Data Incorporated
0000 X. Xxxx Xxxx 0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000 Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
FAX: (000) 000-0000 FAX: (000) 000-0000
- Technical communications between the parties shall be conducted through the
following "Technical Coordinators":
IBM: Supplier:
------------------------------ -------------------------
W Xxxxx Xxxxxx Xxxxx Xxxxx or Xxxxxx X. Xxxxxxx
IBM Corporation Overland Data Incorporated
0000 X. Xxxx Xxxx 0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000 Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
FAX: (000) 000-0000 FAX: (000) 000-0000
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- All legal notices shall be sent to the following addresses and shall be deemed
received (a) 2 Days after mailing if sent by certified mail, return receipt
requested or (b) on the date confirmation is received if sent by facsimile
transmittal, to the party set forth below.
IBM: Supplier:
------------------------------ -------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
IBM Corporation Overland Data Incorporated
0000 X. Xxxx Xxxx 0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000 Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
FAX: (000) 000-0000 FAX: (000) 000-0000
Each party may change its designated coordinators and/or addresses any time
during the Attachment-Term by notifying the Business Coordinator (with a carbon
copy to the Technical Coordinator or legal notice coordinator, as applicable) of
the other party in writing.
7.0 TERMINATION
7.1 Termination for Cause: Either party may terminate this Attachment for
material breach by the other party or in the event that the other party becomes
insolvent, files, or has filed against it, a petition in bankruptcy or undergoes
a reorganization pursuant to a petition in bankruptcy. Such termination shall
become effective 30 Days after receipt of such notice, unless the party
receiving notice remedies the cause cited in such notice within such 30 Day
period. In the event Supplier terminates an Attachment as set forth in this
Subsection 7.1, Supplier shall have the right to cancel all outstanding WAs. In
the event IBM terminates an Attachment as set forth in this Subsection 7.1,
Supplier shall immediately
(a) cease all work and shall treat all applicable outstanding WAs in
accordance with Subsection 7.2 as if all outstanding WAs were canceled for
cause,
(b) prepare and submit to IBM an itemization of all completed and partially
completed Products under such WAs, and at IBM's sole option and only upon
IBM's written direction, Supplier shall deliver to IBM the
(i) number of IBM requested completed Products at the prices set forth
in the applicable WA and
(ii) IBM requested partially completed Products at a price to be
agreed to by the parties, but in no event shall such price be greater
than the per unit price of the Product ,
(c) allow IBM access to Supplier's premises to take possession of all IBM
owned property or to file a security interest in such property,
(d) return to IBM all IBM confidential information or property, if any, and
(e) reimburse IBM for all costs associated with IBM locating and securing
another supplier of the Product or a product that is a suitable substitute
to the Product. IBM shall also have all other remedies available at law,
in equity and in the Agreement (including this Attachment).
7.2 Work Authorization Cancellation:
IBM may at any time cancel WAs in total or in part, for convenience or cause by
notifying Supplier, in writing. Cancellation will be effective immediately upon
Supplier's receipt of the notice. Supplier will immediately cease all work
under such WA in accordance with the cancellation notice. IBM shall have no
liability if it cancels WAs for cause, and IBM shall have the right to return
all Products that have not been used for a full refund. IBM shall also have any
other remedies available at law, equity or in this Agreement. If IBM cancels
WA(s) for convenience, IBM's total and maximum liability, and Supplier's sole
and exclusive remedy, shall be limited to the actual and reasonable costs
substantiated by Supplier within any authorization limits and cancellation
schedules set forth in the Agreement, Attachment and WA, provided,
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however, in no event, shall IBM's liability exceed the total outstanding balance
of the canceled WAs. Supplier shall use all reasonable efforts to mitigate any
IBM liabilities by returning to its suppliers, selling to others, or otherwise
using any applicable materials, parts and subassemblies acquired or produced by
Supplier in connection with the canceled WAs.
All amounts previously paid to Supplier shall be deducted from any amount so
payable to Supplier and if such prior payments exceed the amount payable to
Supplier under the applicable WA, Supplier agrees to refund the difference to
IBM within 30 Days of the effective date of cancellation. The results of all
work paid for by IBM under the applicable WA are the sole property of IBM, and
upon cancellation, the disposition of all such IBM property shall be in
accordance with IBM's written instructions.
8.0 SURVIVAL
The rights and obligations of Sections and Subsections 2.1, 2.2, 2.6, 6.0, 7.0,
8.0 and 9.0 of this Attachment shall survive and continue after termination or
expiration of this Attachment and shall remain in full force and effect, and
shall bind the parties and their legal representatives, successors, heirs and
assigns. The rights and obligations of this entire Attachment as they apply to
WAs that are not terminated or canceled shall survive and continue after
expiration of this Attachment and shall bind the parties and their legal
representatives, successors, heirs and assigns until expiration or cancellation
of such WAs.
9.0 ORDER OF PRECEDENCE
In accordance with the Agreement RMSS-ODI-96-01-0 Subsection 10.9, "Entire
Agreement and Order of Precedence" of the Agreement, any terms in any Supplier
documents such as acknowledgments, shipping instructions or other Supplier forms
shall be void and of no effect.
IN WITNESS WHEREOF, the parties hereto have caused this Attachment to be signed
by their respective duly authorized representatives.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS OVERLAND DATA, INCORPORATED
MACHINES CORPORATION
/s/ Xxxxxxx X. Niggett 10/25/96 /s/ Xxxxx XxXxxxxxx 10/29/96
---------------------------------- -----------------------------------
Authorized Signature Date Authorized Signature Date
Xxxxxxx X. Niggett Xxxxx XxXxxxxxx
---------------------------------- -----------------------------------
Printed Name Printed Name
W.W. Materials Manager - Tape President & CEO
---------------------------------- -----------------------------------
Title Title
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