EXHIBIT 10.8
MASTER AGREEMENT NO. P/PS-960163
MASTER AGREEMENT
FOR
THE PURCHASE OF PRODUCTS
AND
INVENTORY MAINTENANCE, ASSEMBLY AND FULFILLMENT (IAF) SERVICES
BETWEEN
PACIFIC ▇▇▇▇ MOBILE SERVICES
AND
CELLSTAR, LTD.
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS ARE
INDICATED IN THIS AGREEMENT BY "[REDACTED]".
MASTER AGREEMENT NO. P/PS-960163
TABLE OF CONTENTS
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1. DEFINITIONS 1
2. TERM OF AGREEMENT 3
3. MASTER AGREEMENT 3
4. SCOPE OF WORK 4
4.1 CUSTOMER PARTNER TEAM 4
4.2 EXTERNAL RELATIONSHIPS 4
4.2.1 Sourcing 4
4.2.2 Vendors and Product Suppliers 5
4.2.3 Retailers and Other Resellers 6
4.2.4 Direct Sales Accounts (Subscriber and Business Customers) 6
4.3 WORKING RELATIONSHIP 6
4.3.1 Dedicated Product Inventory Ownership and Management 6
4.3.2 Open Stock Forecast and Supply 7
4.3.3 Product Assembly 7
4.3.4 Credit Line Administration, Order Processing and Fulfillment 7
4.3.5 Accounts Receivable, Invoicing and Collections 8
4.3.6 Inventory Accounting and Control 9
4.3.7 Maintenance of Books and Records 9
4.3.8 Inventory/Warehousing 9
4.3.9 Returns Processing 9
4.3.10 Use of Fictitious Business Name 9
4.4 COMPENSATION 10
4.4.1 Start-up Costs 10
4.4.2 Inventory Carrying Costs 10
4.4.3 Standard Product Cost 10
4.4.4 Credit for Customer Receivable 11
4.4.5 Fulfillment Services Costs 11
4.4.6 Monthly Recurring Service Fees 11
4.4.7 Returns 11
4.4.8 Purchase Price Variances 11
4.5 PBMS/SUPPLIER AGREEMENTS 12
5. ORDERS 13
6. PRICES 14
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
7. INVOICING AND PAYMENT 14
8. SHIPPING AND PACKING 15
9. TAXES 15
10. RECORDS AND AUDITS 16
11. INDEPENDENT CONTRACTOR 16
12. NONEXCLUSIVE AGREEMENT 16
13. INDEMNIFICATION 16
14. INSURANCE 17
15. ACCESS 18
16. INFORMATION 19
17. QUALITY 20
18. REGISTRATION 21
19. INSIGNIA 22
20. HAZARDOUS MATERIALS 22
21. CODES, LAWS OR REGULATIONS 22
22. NOTICE OF DELAYS 22
23. CHANGES AND SUSPENSIONS 22
24. TERMINATION AND CANCELLATION 23
25. PARTIAL TERMINATION OR CANCELLATION 23
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
26. NONASSIGNMENT 24
27. NOTICES 24
28. PUBLICITY 24
29. COMPLIANCE WITH LAWS 24
30. TITLE 25
31. NO THIRD PARTY BENEFICIARIES 25
32. AMENDMENTS AND WAIVERS 25
33. EXECUTIVE ORDERS 25
34. HEADINGS 25
35. GOVERNING LAW 25
36. REMEDIES CUMULATIVE 25
37. SEVERABILITY 25
38. SURVIVAL 26
39. PATENTS 26
40. FORCE MAJEURE 26
41. SUBCONTRACTING PLAN 26
42. MBE/WBE/DVBE CANCELLATION CLAUSE 26
43. DELIVERY OF PRODUCTS AND PERFORMANCE OF SERVICES 27
44. USE OF CELLSTAR'S PUBLISHED SPECIFICATIONS 28
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
45. DOCUMENTATION 28
46. RISK OF LOSS 28
47. WARRANTIES 28
48. TERMINATION OF ORDERS 29
49. ALTERNATE DISPUTE RESOLUTION 29
50. PRECEDENCE 30
51. LIMITATION OF LIABILITY 30
52. CORPORATE AUTHORIZATION 30
53. ENTIRE AGREEMENT 31
PROPRIETARY AND CONFIDENTIAL
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CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
EXHIBITS
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EXHIBIT A: Executive Orders and Associated Regulations
EXHIBIT A-1: Job Specific Subcontracting Plan
EXHIBIT A-2: MBE/WBE/DVBE Summary Subcontracting Report
(Job Specific Results)
EXHIBIT A-3: Commodity Product Subcontracting Plan
EXHIBIT A-4: MBE/WBE/DVBE Summary Subcontracting Report
(Commodity Results)
EXHIBIT B: Description of Products, Services & Prices
EXHIBIT C: PBMS' Credit and Collection Costs
EXHIBIT D: PCS Price List
EXHIBIT E: Sample Order
EXHIBIT F: Assembly Cost Model
APPENDIX 1: Procedures Manual
PROPRIETARY AND CONFIDENTIAL
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CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
THIS MASTER AGREEMENT ("AGREEMENT"), EFFECTIVE SEPTEMBER 20, 1996, IS BETWEEN
CELLSTAR, LTD., A TEXAS LIMITED PARTNERSHIP ("CELLSTAR"), AND PACIFIC ▇▇▇▇
MOBILE SERVICES, A CALIFORNIA CORPORATION ("PBMS"). THE PARTIES, INTENDING TO
BE LEGALLY BOUND, AGREE AS FOLLOWS:
1. DEFINITIONS
For purposes of this Agreement, the following terms and all other terms
defined in this Agreement shall have the meanings so defined unless the
context clearly indicates otherwise. A term defined in the singular shall
include the plural and vice versa when the context so indicates.
"AFFILIATE" - means with respect to PBMS (a) any corporation or other
entity owning, either directly or indirectly, a majority of the outstanding
stock of PBMS ("Parent"), or (b) any corporation or other entity in which a
majority of the ownership interest is held, either directly or indirectly,
by Parent or PBMS.
"CELLSTAR ORDER" - means an order executed by CellStar under a product
supplier/PBMS agreement.
"COMPONENT INVENTORY" - means items carried in inventory at the component
level for resale to subscribers as repair or replacement items. These
components are usually but not always "B Stock" items which have been
received as returns without apparent defect or reconditioned merchandise
which cannot be sold as new equipment.
"CUSTOMERS" - means either Retailers, resellers, business and/or end users.
"DEDICATED PRODUCTS" - means Products purchased by CellStar at PBMS"
direction under terms negotiated by PBMS with the Product manufacturers.
Subject to Section 4.3.1.c, Dedicated Products shall be reserved
exclusively for PBMS' use.
"FULFILLMENT SERVICES" - means picking, assembling of Products, packaging,
preparation of shipping documents, shipping to Customers, processing of
Customer returns and tracking of shipments and all associated Services
associated with providing Products to Customers and receiving Products back
from Customers.
"INFORMATION" - means all ideas, discoveries, concepts, know-how,
techniques, designs, specifications, drawings, sketches, models, manuals,
samples, tools, pricing, Customer lists, competitor, manufacturer, or
manufacturing information, computer programs, technical information, and
other confidential business, Customer or personnel information or data,
whether written, oral or otherwise owned or controlled by the disclosing
party.
"INSIGNIA" - means PBMS' and as applicable, the manufacturers' trademarks,
trade names, symbols, decorative designs or evidence of PBMS' inspection.
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MASTER AGREEMENT NO. P/PS-960163
"MATERIAL ADVERSE CHANGE" - means a material adverse change in (a) the
business assets, operations, prospects or financial condition of either
party, or (b) the ability of either party to perform its obligations under
this Agreement.
"OPEN STOCK" - means Products purchased at CellStar's discretion and in
CellStar's inventory available to the general market.
"OPEN STOCK INVENTORY" - means original equipment manufacturer accessories
carried in inventory by CellStar for sale to PBMS and other CellStar
customers. These items may be packaged as PBMS branded items in unique
PBMS retail packages. When so packaged at the request of PBMS, these items
are converted to "Dedicated Products".
"ORDERS" - means purchase orders, in written (e.g. mailed or faxed), or
electronic form (e.g. EDI, flat file) as may be delivered to CellStar for
the purpose of ordering Products and/or Services hereunder. A purchase
order shall be substantially in the form of Exhibit E (Sample Order)
attached hereto and made a part hereof. Each such purchase order, in
written or electronic form shall be deemed to be a separate and independent
agreement between the parties thereto with respect to the subject matter
thereof and shall incorporate (a) all of the provisions of this Agreement
(including any appendices, exhibits, specifications and other documents
attached hereto) as it may from time to time be amended, and (b) any
specifications attached thereto.
"PCS" - means Personal Communication Services.
"PROCEDURES MANUAL" - means a multi-paged document, (the initial version of
which is attached hereto and incorporated by reference hereto as Appendix
1), which details processes and deliverables which will be routinely
performed in the relationship between CellStar and PBMS, and which shall be
periodically revised, from time to time, upon written agreement by both
parties.
"PRODUCTS" - means the equipment and materials, including but not limited
to: PCS handsets, accessories, and collateral material, as may be furnished
to PBMS' Customers by CellStar hereunder.
"PURCHASE PRICE VARIANCE" - means the difference between the actual
delivered cost of Products or components and the standard cost contained in
CellStar's accounting systems.
"RETAILER" - means any vendor of products, whether through traditional
retail outlet or through membership or discount or wholesale establishments
selling to the end user consumer.
"SERVICES" - means all services furnished by CellStar hereunder to PBMS
and/or to PBMS' Customers.
"SPECIFICATIONS" - means CellStar's commercial and technical specifications
(including drawings) for the Products and Services provided hereunder and
such other specifications, e.g. (Procedures Manual), as are listed in the
exhibits or appendices, attached hereto and made a part hereof, or as are
attached to and made a part of the applicable Order.
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MASTER AGREEMENT NO. P/PS-960163
"WARRANTY" - means the warranties for CellStar's Services or the Products
covered by CellStar's and/or the Product manufacturer's warranties under
this Agreement.
2. TERM OF AGREEMENT
a. This Agreement shall become effective as of the date stated above (the
"Effective Date"), and unless sooner terminated or canceled as provided
herein, shall continue through September 20, 2001.
b. Either CellStar or PBMS may terminate this Agreement upon one hundred
and eighty (180) calendar days' prior written notice to the other
setting forth the effective date of such termination. The termination,
cancellation or expiration of this Agreement shall not affect the
obligations of the parties under any Order previously executed
hereunder, and the terms and conditions of this Agreement shall continue
to apply to such Order as if this Agreement had not expired, or been
terminated or canceled. Upon the termination, cancellation or
expiration of this Agreement, PBMS agrees to purchase any Dedicated
Products remaining in CellStar's inventory, including any Open Stock
inventory which has been converted to Dedicated Product inventory.
3. MASTER AGREEMENT
a This Agreement anticipates the future issuance of Orders by Pacific ▇▇▇▇
Mobile Services and any PBMS Affiliate as may be designated by Pacific
▇▇▇▇ Mobile Services in writing. Each such entity executing an Order
shall be deemed to be a party to that Order and shall be subject to the
terms and conditions of this Agreement for purposes of that Order;
provided that no PBMS Affiliate shall be permitted to issue an Order
hereunder until (i) such Affiliate has satisfied CellStar's credit
standards, and (ii) an authorized representative of such Affiliate has
executed appropriate documentation pursuant to which it agrees to be
bound by the terms and conditions of this Agreement for the obligations
incurred under such Order. For the purposes of any Order executed
hereunder by any PBMS Affiliate, the term "PBMS" in this Agreement shall
be deemed to also refer to such Affiliate where the context so
indicates. Prior to any Affiliate's execution of an Order hereunder,
PBMS shall obtain that Affiliate's written agreement to be bound by all
the terms and conditions of this Agreement.
b. The provisions of this Agreement shall apply to all contracts entered
into between CellStar and PBMS during the term of this Agreement with
respect to the Products and Services which are the subject of this
Agreement unless the parties expressly agree otherwise by a written
modification to this Agreement, signed by the persons who executed this
Agreement or any other authorized representative of the parties, or
unless an Affiliate of PBMS enters into a separate written agreement
with CellStar, signed by CellStar and the persons authorized to execute
agreements for the PBMS Affiliate. Any such separate agreement signed
between CellStar and a PBMS Affiliate shall apply only to CellStar and
such Affiliate and have no effect
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PROPRIETARY AND CONFIDENTIAL
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MASTER AGREEMENT NO. P/PS-960163
whatsoever on PBMS. In the absence of such a modification to this
Agreement or such separate agreement, any terms in any other contract
respecting the subject matter of this Agreement which are additional to,
different from or inconsistent with the provisions of this Agreement
shall be deemed to be void and of no effect whatsoever.
4. SCOPE OF WORK
This Agreement describes the principles of the relationship between PBMS
and CellStar and describes CellStar's provision of Products and value added
Services, including but not limited to, sourcing, inventory, assembly,
credit, collections and fulfillment Services to support Product
distribution to PBMS' Customers.
4.1 CUSTOMER PARTNER TEAM
The parties will jointly commit resources to support the following
business processes and structures to accomplish PBMS' and CellStar's
objectives under this Agreement.
The Customer Partner Team ("CPT") shall set direction, priorities,
expectations and boundaries and act to resolve business issues which
arise. The CPT will particularly focus on emphasizing collaborative
work between the parties and to preserve and promote partnering
between the parties.
CPT members shall consist of three (3) representatives each from
CellStar and PBMS. At least one representative from each party will
be at the vice president level or higher. Those representatives,
together with the other CPT members shall be responsible for:
1. Maintaining and reviewing the Services cost structure;
2. Reviewing current processes and additional issues as the parties
may identify for process improvements;
3. At least once each calendar quarter, reviewing pricing, and
recommending price adjustments to the CPT, if necessary;
4. Reviewing forecasting, supply management, and delivery processes
in an effort to streamline processes and to reduce costs
associated with these processes for the benefit of both parties;
and
5. Facilitating the Alternate Dispute Resolution ("ADR") process as
defined in this Agreement.
4.2 EXTERNAL RELATIONSHIPS
4.2.1 SOURCING
PCS Equipment. PBMS has entered into, or may enter into,
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agreements ("PBMS/supplier agreements") with certain
manufacturers or suppliers (hereinafter individually and
collectively "product suppliers") for the purchase of Products.
CellStar agrees that, except with respect to Open Stock, it
shall, upon receipt of an Order by PBMS, place a CellStar
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MASTER AGREEMENT NO. P/PS-960163
Order under the PBMS/supplier agreement specified by PBMS for the
quantity of Dedicated Products identified by PBMS in such Order.
Notwithstanding the above, CellStar shall not be obligated to
purchase Products on behalf of PBMS which will bring anticipated
inventory above a level of expected 60 day sales. PBMS shall
provide CellStar the applicable PBMS/supplier agreement (or all
pertinent portions thereof) in order for CellStar to place a
CellStar Order. If CellStar cannot abide by any term(s) set out
in the PBMS/supplier agreement (or portions thereof) provided by
PBMS, CellStar shall immediately notify PBMS and shall not
proceed with placing a CellStar Order under such agreement until
PBMS and CellStar expressly agree otherwise in writing. Further
terms around CellStar's use of PBMS/supplier agreements are set
forth in Section 4.2.2 below and the section entitled
"PBMS/Supplier Agreements" of this Agreement.
4.2.2 VENDORS AND PRODUCT SUPPLIERS
a. Generally, in this Agreement where the term "vendor" or
"manufacturer" is used, it means the supplier providing Open
Stock to CellStar. Where the term "product supplier" is
used, it means the supplier providing Dedicated Products to
CellStar under a CellStar Order issued pursuant to the
PBMS/supplier agreement.
b. With respect to Dedicated Products, PBMS will be responsible
for product supplier selection and certification, product
selection, pricing and contract negotiations for Dedicated
Products. As to each CellStar Order for Dedicated Products,
PBMS shall pass through to CellStar the rights of PBMS under
the product supplier agreement, including but not limited
to, product supplier indemnity and warranties applicable to
CellStar's use of the Dedicated Products, to the extent
allowed by the product supplier. Nothing in this Agreement
shall diminish any pass-through warranties, indemnity or
other rights extended to CellStar through PBMS, by the
product suppliers.
c. If PBMS directs CellStar to issue a CellStar Order for the
purchase of Dedicated Products under a PBMS/supplier
agreement, PBMS will ensure that the product supplier has
granted CellStar all necessary rights to place that Order.
d. CellStar will procure, receive, inventory, pack for
shipping, ship, and disburse Dedicated Products received
from the vendors and product suppliers.
e. CellStar will be solely responsible for entering into any
necessary vendor agreements for the purchase of Open Stock
Products. CellStar shall pass through to PBMS the rights of
CellStar under the vendor agreement, including but not
limited to, vendor indemnity and warranties applicable to
PBMS' and its Customers' use of the Open Stock Products, to
the extent allowed by the vendor. Nothing in this Agreement
shall diminish any
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MASTER AGREEMENT NO. P/PS-960163
pass-through warranties, indemnity or other rights extended
to PBMS through CellStar, by the vendor.
4.2.3 RETAILERS AND OTHER RESELLERS
a. Generally all Customer contact will be through PBMS.
b. Generally, issues related to Customer payment, credit and
collections will be handled through CellStar.
c. CellStar will provide Products to Customers as specified in
Exhibit D and invoice Customers at PBMS' direction as stated
in the applicable Order or if not stated in the Order, as
specified in the Procedures Manual.
d. CellStar will process Customer returns in accordance with
PBMS' sales policy as specified in the Procedures Manual.
4.2.4 DIRECT SALES ACCOUNTS (SUBSCRIBER AND BUSINESS CUSTOMERS)
PBMS will handle all billing and accounts receivable transactions
with direct sales account Customers. CellStar's primary
responsibility in connection with Direct Sales Accounts ("Direct
Sales Accounts") will be to provide fulfillment Services and to
process Customer returns in accordance with the Procedures
Manual.
4.3 WORKING RELATIONSHIP
The following processes will be contained and further described in the
Procedures Manual:
4.3.1 DEDICATED PRODUCT INVENTORY OWNERSHIP AND MANAGEMENT
a. CellStar will maintain inventories in its facilities and
will be responsible for risk of physical loss or damage, and
any requested insurance as is consistent with prepaid and
add conventions.
b. CellStar will determine inventory and safety stock levels
necessary to support PBMS' business pursuant to a rolling 90
calendar day forecast which PBMS shall provide and update
monthly.
c. PBMS and CellStar recognize that product suppliers may
prohibit sale of handsets outside PBMS' services territory.
In light of that recognition, PBMS and CellStar shall work
cooperatively with the product suppliers to dispose of slow-
moving stock. If CellStar wishes to sell Dedicated Products
to third parties in addition to PBMS' Customers, CellStar
shall 1) gain the written consent of PBMS Director of
Procurement prior to the sale, and 2) if requested by PBMS
and at a charge to be agreed upon, remove the Insignia from
the Product.
d. CellStar will provide space for PBMS to perform quality
control inspections on inbound Dedicated Products as
reasonably required by PBMS, as specified in the Procedures
Manual.
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MASTER AGREEMENT NO. P/PS-960163
4.3.2 OPEN STOCK FORECAST AND SUPPLY
a. PBMS will provide a forecast of PBMS' requirements for Open
Stock Products on a rolling 90 calendar day forecast. Such
forecast shall be updated by PBMS.
b. CellStar will advise PBMS promptly, within 2 business days,
of any Open Stock vendor supply constraints.
c. CellStar will make reasonable best efforts to provide Open
Stock Product availability to fill all PBMS Orders.
4.3.3 PRODUCT ASSEMBLY
a. CellStar will assemble and package components to PBMS'
specifications.
b. CellStar will control the security and data collection
processes for SIM cards.
c. CellStar will provide PBMS with sales forecasting and
DRP/MRP assistance to facilitate efficient inventory
management accessible manually initially, by 11-1-1996.
d. PBMS will provide input to sales forecasting modules and
DRP/MRP system parameters to (i) facilitate efficient
inventory management and (ii) ensure product availability as
necessary.
e. PBMS and CellStar will work together to develop cost
effective production/assembly processes.
4.3.4 CREDIT LINE ADMINISTRATION, ORDER PROCESSING AND FULFILLMENT
a. PBMS' Customer Care and Order Processing systems shall be
capable of accepting orders from Retailers and other
resellers, individual subscribers, and business Customers.
b. PBMS will determine and administer all Order processing
procedures, specific Customer Order packaging requirements,
pricing, sales and marketing relationships with its
Customers.
c. PBMS will pass Customer shipping instructions (including
without limitation, Order packaging and labeling
specifications), and billing information to CellStar
electronically through the PBMS Order Processing system, as
specified in the Procedures Manual, or in such other manner
used by PBMS to communicate the information.
d. CellStar shall generate a packing list for each Order.
e. CellStar will provide Retailer and other reseller credit
line administration for Orders received from PBMS.
Exceptions to credit lines may be approved by PBMS' Chief
Financial Officer or designate and PBMS assumes
responsibility for Customer credit risk with respect to such
approved exceptions. CellStar assumes responsibility for
all other credit risk associated with the financial strength
of Retailers and other resellers invoiced by CellStar. PBMS
shall be responsible for collection or repayment to CellStar
for customer deductions for allowances, fines,
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MASTER AGREEMENT NO. P/PS-960163
penalties and other debits unrelated to traditional credit
risk. Notwithstanding the foregoing sentence, if PBMS in
good faith believes that any Customer deduction for
allowances, fines, etc. are the result of a CellStar error
in fulfilling CellStar's obligations under the applicable
Order and further believes that CellStar should assume the
burden of that deduction, then PBMS may present the issue to
the CPT for resolution.
f. CellStar shall provide all Fulfillment Services with respect
to Customer Orders.
g. CellStar will provide electronic confirmation to PBMS of all
shipments completed on behalf of PBMS including carrier
tracking codes by January 31, 1997.
4.3.5 ACCOUNTS RECEIVABLE, INVOICING AND COLLECTIONS
a. PBMS will ▇▇▇▇ individual subscribers and business Customers
for its Direct Sales Accounts through PBMS' Customer Care
and Billing systems (CCBS). Accordingly, PBMS will not
provide this type of billing information to CellStar.
b. CellStar will invoice Retailers and other resellers upon
Product shipment in accordance with PBMS' instructions
regarding the Customer's billing information as stated in
the applicable Order or, if not stated in the applicable
Order, as specified in the Procedures Manual.
c. CellStar will collect payments from Retailers and other
resellers.
d. CellStar will perform payment reconciliation with Retailers
and other resellers to assist PBMS in properly classifying
deductions and resolving disputes for unauthorized Customer
deductions from invoices. PBMS will reimburse CellStar for
all Customer deductions (not associated with traditional
risk of creditworthiness), whether authorized or otherwise,
in accordance with PBMS' Deductions Policy. PBMS shall
reimburse CellStar for any unresolved Customer deduction
that is outstanding for more than 180 days without regard of
the status of collection efforts. Notwithstanding the
foregoing sentence, if PBMS in good faith believes that any
such Customer deduction arose from a CellStar error which
was in CellStar's control, in fulfilling CellStar's
obligations under the applicable Order, PBMS shall present
the issue to the CPT for resolution. If PBMS reimburses
CellStar for a Customer deduction and CellStar subsequently
collects the deduction from the Customer, CellStar shall
immediately credit PBMS that amount.
e. CellStar will invoice PBMS for Products shipped to the
Customer immediately following Product shipment to the
Customer.
f. Upon PBMS' request, CellStar will promptly provide
information to PBMS on each Customer's sales and credit
status.
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4.3.6 INVENTORY ACCOUNTING AND CONTROL
CellStar covenants and agrees to employ methods of inventory
accounting and control that are in accordance with generally
accepted accounting principles.
4.3.7 MAINTENANCE OF BOOKS AND RECORDS
CellStar covenants and agrees to maintain books and records
covering all transactions under this Agreement and shall make
such books and records available for PBMS' inspection at any
time, including CPA auditors from a major accounting firm hired
by or engaged by PBMS, by and through CellStar's representatives
and agents, during regular business hours on any business day.
4.3.8 INVENTORY/WAREHOUSING
CellStar shall separately inventory and warehouse Dedicated
Products from Open Stock. CellStar shall designate an area for
Dedicated Products in a separate secure area and in accordance
with PBMS' instructions.
4.3.9 RETURNS PROCESSING
a. CellStar will process Customer returns from Retailers and
other resellers, individual subscribers, and business
Customers through its ▇.▇. ▇▇▇▇▇▇▇ system and PBMS' Customer
Care and Order Processing systems.
b. PBMS will be responsible for setting the appropriate
standard cost value of the A and B and discard stock items
in the inventory master file. CellStar will determine the
value of the returned products based on the returns
procedures set forth in the Procedures Manual. CellStar will
▇▇▇▇ PBMS for any inventory writedown from A to B or discard
stock value.
c. All Customer returns and vendor and product supplier
warranty procedures for the Products shall be in accordance
with the Procedures Manual.
4.3.10 USE OF FICTITIOUS BUSINESS NAME
a. The parties understand and agree that CellStar will, for
certain purposes, need to use the name "Pacific ▇▇▇▇ Mobile
Services Fulfillment" or such other substantially similar
name as CellStar is able to register as an assumed name in
the State of Texas and Dallas County, Texas (the "Name").
PBMS hereby authorizes CellStar to use the name for the
following purposes: (i) receipt and acceptance of payment
from Customers (including, without limitation, via lock-box
wire transfer or check), (ii) inclusion in shipping
collateral provided to Customers, (iii) invoicing of
Customers and provision of Customer statements, (iv) written
and oral correspondence with Customers, (v) such other
purposes
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as are authorized in writing by PBMS and (vi) collection
activities; provided that any use of the Name by CellStar
shall be in accordance with the guidelines provided by PBMS
entitled "Four Basic Rules", incorporated by reference into
this Agreement. PBMS further authorizes CellStar to register
the Name with the Secretary of State of the State of Texas
and in Dallas County, Texas. CellStar's right to use the
Name is a nonexclusive right and PBMS shall retain all
ownership and intellectual property rights in the Name.
Except as provided herein, CellStar shall not use the Name
in any advertising or publicity matter without PBMS' prior
written consent.
b. Upon expiration, termination or cancellation of this
Agreement, CellStar may continue to use the Name only during
the period the Services are transitioned to PBMS or its
authorized contractor and for the purpose of receiving or
collecting remaining payments, if any, due CellStar from
Customers in connection with the Agreement (collectively,
the "Transition Period"). Upon the conclusion of the
Transition Period, and upon PBMS' request, CellStar shall
confirm in writing that it has ceased all use of the Name.
4.4 COMPENSATION
As detailed in Exhibits B and C, PBMS shall compensate CellStar for
each of the following Service components:
4.4.1 START-UP COSTS
Upon execution of this Agreement, CellStar will invoice PBMS for
the start-up costs set forth in Exhibit B.
4.4.2 INVENTORY CARRYING COSTS
A recurring charge, calculated and billed monthly as a "cost of
capital" charged on average daily inventory plus the average
daily balance of amounts due from PBMS for Product shipments. The
calculation shall include a credit for the average daily balance
of unpaid product supplier invoices to reflect an adjustment in
accordance with Exhibit B for vendor payment terms. CellStar will
invoice PBMS the daily average balance carrying costs as of the
close of each month.
4.4.3 STANDARD PRODUCT COST
CellStar shall invoice PBMS standard Product cost at the time of
shipment as set forth in Section 7.a. This cost represents the
sum of all Product components and assembly costs including
assembly charges, packaging and collateral materials and standard
loss allowances as shown on the Product ▇▇▇▇ of materials.
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4.4.4 CREDIT FOR CUSTOMER RECEIVABLE
Following each shipment, CellStar will record a payable to PBMS
for the value of the invoice to the Retailer or other reseller as
set forth in Section 7.b.
4.4.5 FULFILLMENT SERVICES COSTS
A warehouse picking charge of [REDACTED] per carton shipped.
An additional charge of [REDACTED] per Order picked from
Component Inventory.
Actual transportation charges as billed by the carrier (the
discounted amount) for delivery to the Customer.
Actual insurance charges covering loss or damage in transit.
4.4.6 MONTHLY RECURRING SERVICE FEES
The monthly service fees shall be comprised of the following
components:
a. A monthly "cost of capital" charge predicated on the average
daily balance for accounts receivable for outstanding
invoices to PBMS and Customers, minus the average daily
balance of amounts due to PBMS from CellStar for receivables
transferred to CellStar by PBMS, plus a [REDACTED] of net
monthly invoices to Retailers and other resellers and
resellers billed by CellStar for PBMS sales .
b. A monthly Service fee for invoice processing and collection
Services predicated on the cost of such Services plus
margins as set forth in Exhibit C.
c. Non-recoverable returns and freight.
d. Such other items as set forth in Exhibit C.
4.4.7 RETURNS
See Procedures Manual. See also Exhibit B for the fees to be
billed to PBMS for skid storage fees and Products returned by
Customers ("return fees").
4.4.8 PURCHASE PRICE VARIANCES
CellStar shall operate on the basis of a "standard cost"
accounting system and shall invoice all Product cost at "standard
cost" as noted in Section 4.4.3. All purchase price variances
for the account of PBMS shall be invoiced or credited to PBMS as
of the close of each month. Periodic changes in standard cost
will generate a change in inventory valuation and corresponding
debit or credit to Purchase Price Variances accounts. These
debits and credits to the Purchase Price Variances
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accounts for the account of PBMS shall be invoiced or credited by
CellStar as of the close of each month.
4.5 PBMS/SUPPLIER AGREEMENTS
a. PBMS has included in certain third party manufacturer or supplier
agreements (hereinafter "PBMS/supplier agreements") with its PCS
product suppliers (the "product suppliers") the right for a third
party distributor, such as CellStar, to execute orders under the
PBMS/supplier agreements for the purchase of PCS products. As
necessary and as permitted by nondisclosure agreements between
PBMS and its suppliers, PBMS agrees to provide CellStar a copy
of the PBMS/supplier agreements (or pertinent extracts) in order
for CellStar to order Dedicated Products only as PBMS may direct,
and not for the purpose of ordering products for any of
CellStar's other customers. CellStar agrees to keep the terms of
the supplier agreements strictly confidential and not to disclose
the terms of the PBMS/supplier agreements, including pricing, to
any third party, without PBMS' prior written consent, unless that
third party has a legitimate need to know in the performance of
services to CellStar, and is covered by an appropriate
confidentiality agreement prior to accessing the Information.
"Third parties" shall include without limitation, any potential
competitors of the product suppliers, including competitors that
are partners or third parties holding any form of equity interest
in CellStar.
b. In addition to the above and subject to CellStar's rights under
Section 4.2.1. above (regarding instances, if any, in which
CellStar has notified PBMS that it cannot comply with a product
supplier agreement prior to executing a CellStar Order), CellStar
agrees to abide by all applicable terms and conditions of the
PBMS/supplier agreements, including payment and confidentiality
terms. CellStar may not add any supplementary or conflicting
terms to any CellStar Order under a PBMS/supplier agreement
without PBMS' prior written consent. The right to receive any
liquidated damages, promotional monies or other such payments
under a PBMS/supplier agreement shall belong exclusively to PBMS
whether or not CellStar executed a CellStar Order for Dedicated
Products in connection with the product supplier's payment of
liquidated damages, promotional monies or other such payments.
In the event the product supplier pays any such liquidated
damages, promotional monies or other such payments to CellStar in
connection with Dedicated Products, CellStar shall immediately
transfer those funds to PBMS without set-off, administrative
charge or deduction of any kind.
c. In connection with a CellStar Order for Dedicated Products under
a PBMS/supplier agreement, if CellStar does not or, believes it
cannot, make full payment to any product supplier within 30 days
following product delivery by the product supplier under the
applicable CellStar
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Order, CellStar shall notify PBMS immediately and provide
information concerning the reason for the nonpayment.
Notwithstanding the foregoing, CellStar agrees to make best
efforts to make payment to the product suppliers when due and
CellStar expressly acknowledges that failure to do so shall
result in a material breach by CellStar of the terms of this
Agreement, unless PBMS expressly waives CellStar's breach in
writing. PBMS agrees that it shall not cure a breach of
CellStar's payment obligations under a PBMS/supplier agreement
unless and until such time that CellStar's 15 calendar day cure
period (as described in Section 24 of this Agreement) has
elapsed.
d. In the event that PBMS cures CellStar's default on any payment
obligation to a product supplier under a CellStar Order issued
pursuant to a PBMS/supplier agreement, CellStar shall with
respect to that default:
i) TO THE EXTENT THAT CELLSTAR HAS PREVIOUSLY SHIPPED THE
PRODUCTS TO THE CUSTOMER: CellStar shall immediately credit
PBMS' account in full for the money PBMS paid to the product
supplier (the "default amount").
ii) IN THE EVENT THAT THE PRODUCTS HAVE NOT YET BEEN SHIPPED TO
THE CUSTOMER: CellStar shall automatically be deemed to
have sold the Products to PBMS upon the date, and in
consideration of, PBMS' payment to the product supplier.
Any subsequent shipment of such Products to Customers shall
be considered consignment inventory and Product costs shall
not be billed to PBMS, unless CellStar buys back the
Products from PBMS.
e. In the event that this Agreement expires or is terminated or
canceled, any credits, including default amounts remaining in
PBMS' account, shall be paid to PBMS in cash within thirty (30)
days of such expiration, termination or cancellation date.
Additionally, at any time, PBMS may set-off any PBMS payment due
CellStar, by the amount of credits due PBMS.
5. ORDERS
CellStar's commencement of performance of any Order shall be deemed to be
acceptance of such Order upon the terms and provisions of this Agreement.
Any additional or different terms in any CellStar quotation,
acknowledgment, invoice or other communication to PBMS, whether or not such
terms materially alter an Order, shall be deemed objected to by PBMS
without need of further notice of objection and shall be of no effect and
not in any circumstance be binding upon PBMS unless expressly accepted by
PBMS in writing.
Subject to CellStar's rights set forth in the preceding paragraph, the
parties expressly agree that all Orders electronically transmitted by PBMS
to CellStar shall be deemed to constitute a "writing sufficient to indicate
that a contract for sale has been made between
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the parties and signed by the party against whom enforcement is sought or
by his authorized agent or broker" for purposes of section 2201 of the
California Uniform Commercial Code. The parties further agree that data
mechanically or electronically stored by PBMS or CellStar in the course of
business shall constitute acceptable documentation of the contents of any
Order or invoice electronically transmitted by either party to the other.
6. PRICES
Prices are set forth in Exhibit B and D. [REDACTED] Prices changes and
prices for any new Products or Services set forth in Exhibit B shall be
implemented only when agreed to by the CPT. Additionally, the following
shall apply:
(i) Any price changes for assembly costs as set forth in Section 1.c. of
Exhibit B, shall be determined on the basis of the assembly cost model set
forth in Exhibit F.
(ii) Assembly prices for all new Products set forth in Exhibit B,
including price changes for those Products, shall be determined on the
basis of assembly cost model set forth in Exhibit F.
(iii) Any price changes for credit and collection Services as set forth in
Section 3.c. of Exhibit B shall be determined on the basis of the component
cost analysis set forth in Exhibit C.
(iv) Prices for any new administrative Services set forth in Exhibit B,
including any price changes for those Services, shall be determined on the
basis of component cost analysis similar to that set forth in Exhibit C.
7. INVOICING AND PAYMENT
a. Promptly after shipment of Products to the Customer, CellStar shall
render an invoice to PBMS for each such shipment. The invoice shall
identify and separately show quantities and prices for each item
shipped and for Services provided any shipping charges to be borne by
PBMS, applicable sales or use taxes, any discounts and total amount
due. PBMS shall promptly pay CellStar the amount due within one (1)
business day after receipt of the invoice. Both parties are currently
working to develop EFT capabilities. Until such time that EFT is
implemented, PBMS will remit payment by wire transfer each Monday, for
the prior week.
b. Promptly after the shipment of Products to the Customer, CellStar
shall remit payment to PBMS in an amount that equals the invoiced
amount generated by CellStar to the Retailer or other reseller. Both
parties are currently working to develop EFT capabilities. Until such
time that EFT is implemented, CellStar will remit payment by wire
transfer each Monday, for the prior week.
c. Promptly after the performance of Services rendered, CellStar shall
render an invoice electronically for such Services. The invoice shall
identify and separately show prices for the Services, including Cost
of Capital. PBMS shall promptly pay CellStar the amount due via
electronic funds transfer ("EFT') within one (1) business day after
receipt of the invoice. Both parties are currently working to develop
EFT capabilities. Until such time that EFT is
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implemented, PBMS will remit payment by wire transfer each Monday, for
the prior week.
d. If PBMS disputes any invoice rendered or amount paid, PBMS shall so
notify CellStar after payment, and the parties, through the CPT, shall
use their best efforts to resolve such dispute expeditiously. The CPT
shall provide all pertinent information to PBMS and CellStar upon
request to enable and cooperate with PBMS in investigating the amount
in dispute.
e. With respect to Section 7.a. and b. above, upon agreement by both
parties, amounts due for transactions under such Sections may be
consolidated for the purpose of the single transfer of funds. Nothing
in this paragraph e. however, limits PBMS' right to set-off payments
due CellStar as set forth in Section 4.5.e. of this Agreement.
8. SHIPPING AND PACKING
a. CellStar shall ship all Orders to PBMS' Retailers and other resellers
according to the specific shipping instructions for that Customer when
set forth in the Procedures Manual, unless PBMS specifies other
instructions in the applicable Order, provided that CellStar shall
have had a reasonable opportunity to (i) review the applicable
Customer's standard shipping instructions prior to receipt of such
Order, and (ii) make arrangements to accommodate any special
instructions of such Customer. PBMS agrees to reimburse CellStar for
additional freight charges, if any, required to satisfy such special
instructions. Whenever possible however, CellStar shall use the
lowest priced shipping carrier (and where possible use a contract
carrier) capable of shipping the Products on time. In the event the
Order contains other shipping instructions, then notwithstanding the
section entitled "Order of Precedence" in this Agreement, the Order
shall take precedence over the shipping instructions set forth in the
Procedures Manual.
b. CellStar shall ship Products as specified in PBMS' Order to meet PBMS'
specified shipment or arrival date.
c. Unless expressly stated to the contrary, CellStar's charges for
transportation Services including, but not limited to, routing,
transporting, hauling, hoisting, storage and detention, are not
included in any prices furnished for Products.
d. Marking and labeling ("Marking") of packages may vary depending on
Product and Order type. Standard Markings shall include, but not be
limited to, Markings which are or shall be required by applicable laws
and regulations governing the environment and hazardous
materials/wastes, Order number, container number, ship-to address,
return address, Product identification, quantity, date packed and
gross weight, where applicable.
9. TAXES
a. PBMS shall reimburse CellStar the cost of all sales and use taxes and
import and export duties, and other governmental fees to the extent
related to PBMS' Orders not otherwise included in the invoice for the
original shipment to PBMS Customers.
b. CellStar agrees to pay, and to hold PBMS harmless from and against,
any penalty, interest, additional tax or other charge that may be
levied or assessed as
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a result of the delay or failure of CellStar for any reason to pay any
tax or file any return or information required by law, rule or
regulation or by this Agreement to be paid or filed by CellStar.
c. If PBMS is exempt from payment of any applicable sales and/or use tax
upon notifying CellStar of the basis for claiming such exemption
CellStar agrees to take all legal and proper steps to sell the
Products free of sales and/or use tax or to act as PBMS' agent in
applying for any applicable rebate of tax. PBMS will, upon request
furnish CellStar with any applicable tax exemption number.
10. RECORDS AND AUDITS
CellStar shall maintain accurate records of all matters which relate to
CellStar's obligations hereunder in accordance with generally accepted
accounting principles and practices, uniformly and consistently applied in
a format that will permit audit. Unless otherwise provided in this
Agreement, CellStar shall retain such records for a period of four (4)
years from the date of final payment under the Order to which such records
relate. To the extent that such records may be relevant in determining if
CellStar is complying with its obligations under the applicable Order, PBMS
and its authorized representatives shall, at any time, upon reasonable
advance notice, have access to such records for inspection and audit during
normal business hours.
11. INDEPENDENT CONTRACTOR
CellStar hereby declares and represents that CellStar is engaged in an
independent business and will perform its obligations under this Agreement
as an independent contractor and not as the agent or employee of PBMS; that
the persons performing services hereunder are not agents or employees of
PBMS; that CellStar has and hereby retains the right to exercise full
control of and supervision over the performance of CellStar's obligations
hereunder and full control over the employment, direction, compensation and
discharge of all employees assisting in the performance of such
obligations; that CellStar shall be solely responsible for all matters
relating to payment of such employees, including compliance with workers'
compensation, unemployment, disability insurance, social security,
withholding and all other federal, state and local laws, rules and
regulations governing such matters; and that CellStar shall be responsible
for CellStar's own acts and omissions and those of CellStar's agents,
employees and contractors during the performance of CellStar's obligations
under this Agreement.
12. NONEXCLUSIVE AGREEMENT
This Agreement is a nonexclusive agreement. PBMS expressly reserves the
right to contract with others for any of the products or services it may
require. PBMS also reserves the right, at any time, to 1) bring any of the
Services described under this Agreement in-house or 2) enter into an
arrangement whereby a PBMS Affiliate provides the types of Services
described hereunder.
13. INDEMNIFICATION
CellStar shall indemnify, defend and hold harmless PBMS and its Affiliates,
and the directors, shareholders, agents and employees of any of them
("Indemnitees"), from and against any fine, penalty, loss, cost, damage,
injury, claim, expense or liability, including
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attorney's fees and court costs (individually and collectively
"Liabilities"), as a result of (i) injury to or death of any person; (ii)
damage to, loss or destruction of any property; (iii) failure to comply
with the section entitled "Compliance with Laws", or (iv) breach of a
PBMS/supplier agreement where such Liabilities arise out of CellStar's
performance of this Agreement except for that portion of Liabilities which
are caused by PBMS' negligence or willful misconduct. CellStar shall (1)
keep PBMS and any PBMS Indemnitees subject to such Liabilities fully
informed as to the progress of the defense and/or settlement and (2) afford
PBMS or any Indemnitee, each at its own expense, an opportunity to
participate on an equal basis with CellStar in the defense or settlement of
any such Liabilities.
With respect to any claim of infringement of any patent, copyright, trade
secret or other intellectual property right of any third party in
connection with Open Stock, CellStar shall pass through to PBMS the
manufacturer's and/or vendor's indemnity in connection with such
infringement claim to the extent allowed by that manufacturer or vendor.
With respect to any claim of infringement of any patent, copyright, trade
secret or other intellectual, proprietary right of any third party in
connection with Dedicated Products, PBMS shall pass through to CellStar the
product supplier's indemnity in connection with such infringement claim, to
the extent allowed by that product supplier.
While PBMS is on CellStar's premises, PBMS agrees to indemnify CellStar
under the same terms as set forth in paragraph a. above, for Liabilities as
a result of any injury to or death of any person or damage, loss or
destruction of any property which arises from PBMS' negligence or willful
misconduct except for that portion of Liabilities which are caused by
CellStar's negligence or willful misconduct. In addition, PBMS agrees to
indemnify CellStar under the same terms as set forth in paragraph a. above
for Liabilities as a result of failure to comply with the Section entitled
"Compliance With Laws" which arise out of PBMS' performance of this
Agreement.
PBMS agrees to indemnify, defend and hold harmless CellStar and its
affiliates, and the directors, stockholders, agents and employees of any of
them, from and against any Liabilities that arise in connection with
CellStar's use of the Name, except to the extent such Liabilities are due
to CellStar's negligence or misconduct.
14. INSURANCE
Any and all insurance, including Worker's Compensation Insurance, that may
be required under the laws, ordinances, and regulations of any governmental
authority, with respect to CellStar's performance under this Agreement, is
and shall be the sole responsibility of CellStar.
a. Without in any way limiting CellStar's indemnification obligations
hereunder, CellStar shall maintain the following insurance:
i) Commercial General Liability (Bodily Injury and Property Damage)
Insurance including the following supplementary coverages:
1. Contractual Liability to cover liability assumed under this
Agreement;
2. Personal Injury Liability;
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3. Product and Completed Operations Liability Insurance;
4. Property Damage Liability Insurance;
ii) Business Automobile Liability Insurance if any of CellStar's
employee owned, leased, hired or borrowed automobiles are used in
the performance of this Agreement. Coverage shall be in force
for all owned, non-owned and hired automobiles used by CellStar.
iii) The limit of the liability for insurance required above shall
not be less than two million dollars ($2,000,000) combined single
limit per occurrence.
b. The insurance specified above shall:
i) Name PBMS, its Affiliates, directors, agents and employees as
additional insureds in matters covered by this Agreement, at
CellStar's sole expense;
ii) Provide that such insurance is primary coverage with respect to
all insureds;
iii) Contain a Standard Cross Liability Endorsement which provides
that the liability insurance applies separately to each insured
and that the policies cover claims or suits by one insured
against the other;
iv) Contain a waiver of subrogation and an assignment of statutory
lien against PBMS for purposes of Worker's Compensation
Insurance;
v) Include a requirement that the insurer provide PBMS with thirty
(30) days written notice to PBMS prior to the effective date of
any cancellation or material change of the policy or policies of
insurance;
vi) have insurance issued by insurance companies that hold a current
rating of not less than A/XV, according to Best's Key Rating
Guide.
c. If requested by PBMS, CellStar shall provide PBMS with a Certificate
of Insurance executed by a duly authorized representative of the
insurer evidencing the coverages, limits, and provisions specified
above.
d. If CellStar's insurance is on "claims-made" forms, CellStar's
obligations to maintain the insurance and to provide policy
endorsements required herein shall survive the termination of this
Agreement for a period of five (5) years.
15. ACCESS
a. PBMS' Premises
CellStar shall when appropriate have reasonable access to PBMS'
premises during normal business hours and at such other times as may
be agreed upon by the parties in order to enable CellStar to perform
its obligations under this Agreement. CellStar shall coordinate such
access with PBMS' designated representative prior to visiting such
premises. If PBMS for any lawful reason requests CellStar to
discontinue furnishing any person provided by CellStar for performing
work on PBMS' premises, CellStar shall immediately comply with such
request. Such person shall leave PBMS' premises promptly and CellStar
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shall not furnish such person again to perform work on PBMS' premises
without PBMS' prior consent.
b. CellStar's Premises
PBMS shall, upon reasonable prior notice to CellStar and at no
additional charge, have reasonable access to CellStar's premises
during normal business hours in order to observe CellStar's work with
respect to the Products and Services or to take possession of any
Dedicated Products paid for by PBMS. If CellStar for any lawful reason
requests PBMS to discontinue furnishing any person provided by PBMS
for performing work on CellStarOs premises, PBMS shall immediately
comply with such request. Such person shall leave CellStarOs premises
promptly and PBMS shall not furnish such person again to perform work
on CellStarOs premises without CellStarOs prior consent.
c. Rules and Regulations
The employees and agents of CellStar and PBMS shall, while on the
premises of the other, comply with all site rules and regulations,
including, where required by government regulations, submission of
satisfactory clearance from the U.S. Department of Defense and other
governmental authorities concerned.
d. Releases Void
Neither party shall require waivers or releases of any personal rights
from representatives of the other in connection with visits to its
premises, and no such releases or waivers shall be pleaded by either
party in any action or proceeding.
16. INFORMATION
a. In the performance of its obligations under this Agreement, either
party may receive or access (the Oreceiving partyO) Information from
the other party (the Odisclosing partyO). Such Information may
contain material which is proprietary or confidential, disclosures of
patentable inventions with respect to which patents may not have been
issued or for which patent applications may not have been filed, or
material which is subject to applicable laws regarding secrecy of
communications or trade secrets. Accordingly, the receiving party
agrees:
i) that all such Information so acquired by it or its employees,
contractors or agents (individually and collectively "personnel")
hereunder shall be and shall remain the disclosing party's
exclusive property;
ii) to inform all of its personnel engaged in handling such
Information of the proprietary or confidential character of such
Information and of the existence of applicable laws regarding
secrecy of communications;
iii) to limit access to such Information to its personnel having a
need to know;
iv) to keep, and have its personnel who receive or access such
Information keep, such Information confidential;
v) to return promptly or certify that it has destroyed, any copies
of such Information in written, graphic or other tangible form
upon the disclosing partyOs request; and
vi) to use such Information only for purposes of this Agreement and
for other purposes only upon such terms as may be agreed upon
between the parties in writing.
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b. Notwithstanding the foregoing, nothing contained in this Section 16
shall restrict either party in the use or disclosure of any
Information from the other party which:
i) is already in such party's possession without accompanying use or
disclosure restrictions prior to its receipt from the other
party; or
ii) is or subsequently becomes publicly available through no fault of
such party; or
iii) is rightfully received by such party from a third party without
accompanying use or disclosure restrictions; or
iv) is independently developed by such party or a third party without
the aid, application or use of any Information received pursuant
to this Agreement; or
v) is approved in writing for release by the other party.
c. Each party hereto acknowledges and agrees that in the event of the
violation of this Section 16, irreparable damage may occur, and
therefore the aggrieved party shall be entitled to seek court ordered
injunctive relief to halt the violation of this Agreement which such
remedy shall be in addition to any other remedies available to the
aggrieved party at law or in equity.
d. If either party is required by law or by governmental regulation or
rule or receives a request to disclose all or any part of the
disclosing party's Information by applicable law or, under the terms
of a subpoena or other order issued by a court of competent
jurisdiction or by a government agency, the receiving party shall:
(i) promptly notify the disclosing party of the existence, terms and
circumstances surrounding any such requirement or request; (ii)
consult with the disclosing party regarding the advisability of taking
steps to resist or narrow such requirement or request; (iii) if
disclosure of such Information is required, furnish only such portion
of the Information as the receiving party is advised by counsel is
legally required to be disclosed; and (iv) cooperate with the
disclosing party, at the disclosing party's expense, in its efforts to
obtain an order or other reliable assurance that confidential
treatment will be accorded to that portion of the Information that is
required to be disclosed.
17. QUALITY
a. PBMS and CellStar believe that benefits accrue to both parties when
they cooperate to improve quality and to control costs.
b. CellStar shall be engaged in on-going quality improvement efforts and
practices which are consistent with the latest standards and practices
in the industry.
c. CellStar shall maintain a quality assurance system designed to
identify, correct and prevent deficiencies.
d.
i) CellStar agrees to perform all quality control functions in
conformance with the "Warranties" section of the Agreement, the
Specifications and applicable Order; and, in the absence of
Specifications, to good commercial practice. Detailed inspection
records, documentation and
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other data relating to CellStar's standards in effect at
CellStar's premises shall be maintained by and made available to
PBMS upon request.
ii) At PBMS' option, PBMS may at all reasonable times and places,
either perform or observe CellStar performance of inspections and
tests of any Products pertaining to the Agreement. CellStar
shall designate, at each of CellStar's applicable distribution
facilities, one (1) or more responsible employees with whom PBMS
may discuss any matters relating to Product quality and
reliability. CellStar shall also make available to PBMS at no
additional charge, such facilities, data, Specifications and
information regarding CellStar procedures and any other
documents, information and assistance as may be deemed reasonably
necessary by PBMS to perform inspections and tests related to
CellStar's Product handling and as mutually agreed by the CPT in
writing.
iii) PBMS may inspect and test Products, in whole or in part, prior
to or subsequent to final assembly and/or completion of Product
manufacturing or repair processes. Whenever Products are made
available to PBMS for inspection and testing, CellStar shall also
make available to PBMS copies of any Order(s) applicable to such
Products. Whenever CellStar establishes a stock of Products to
be shipped to PBMS or its Customers pursuant to Orders to be
issued by PBMS in the future, such Products shall be available
for inspections by PBMS prior to delivery by CellStar.
iv) PBMS' exercise of, or failure to exercise, the rights provided in
this Section shall not relieve CellStar of its obligation to
furnish all Products in conformance to this Agreement and the
applicable Order.
18. REGISTRATION
To the extent that PBMS purchases Open Stock, CellStar represents that,
from the date of this Agreement on a going forward basis, it will use its
best reasonable efforts to include in its contracts with each manufacturer
that provides Open Stock to CellStar, the manufacturer's commitment and
obligation to comply with all Federal Communications Commission's Rules and
Regulations as may be amended from time to time, including, but not limited
to, all labeling and Customer instruction requirements with respect to that
Open Stock. CellStar agrees to indemnify PBMS for any Liabilities
pursuant to the Section entitled "Indemnification" of this Agreement for
CellStar's breach of this Section entitled "Registration". PBMS agrees
that it will use its best reasonable efforts to include in its contracts
with each product supplier that provides Dedicated Products to CellStar the
product supplier's commitment and obligation to comply with all Federal
Communication Commission's rules and regulations as may be amended from
time to time, including but not limited to all labeling and Customer
instruction requirements with respect to that Dedicated Product. PBMS
agrees to indemnify CellStar for any Liabilities pursuant to the Section
entitled "Indemnification" of this Agreement for PBMS' breach of this
Section entitled "Registration".
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19. INSIGNIA
Upon PBMS' written request, Insignia shall be properly affixed by CellStar
to the Products furnished. Such Insignia shall not be affixed, used or
otherwise displayed on the Products furnished or in connection therewith
without PBMS' written approval. The manner in which such Insignia will be
affixed must be approved in writing by PBMS. If PBMS directs CellStar to
remove Insignia from any Products rejected or not purchased by PBMS,
CellStar shall do so at a price to be negotiated by the CPT for such
removal.
20. HAZARDOUS MATERIALS
a. CellStar shall notify PBMS in writing at least thirty (30) days prior
to shipment when any Open Stock Product or Services or processes
consists of or contains a "hazardous chemical substance or mixture" or
a "hazardous and/or radioactive material", as these terms are defined
in all applicable federal, state and local laws, regulations and
orders ("Regulations").
b. Any hazardous materials in Products or Services provided hereunder by
CellStar shall be transported or handled in accordance with the
requirements of the applicable Regulations including, but not limited
to, those of the Department of Transportation governing transportation
of such hazardous materials.
21. CODES, LAWS OR REGULATIONS
CellStar shall make any changes to its Services and will use its best
efforts to cause the manufacturers of Open Stock to change the Open Stock
and PBMS will use its best efforts to cause the product suppliers of
Dedicated Products to change the Dedicated Products, in order to meet
codes, laws or regulations which are in effect.
22. NOTICE OF DELAYS
Whenever any actual or potential cause delays or threatens to delay
CellStar's performance, CellStar shall immediately so notify PBMS in
writing. Such notice shall include all relevant information concerning the
actual or potential cause of the delay and its background. During the
period such actual or potential cause exists, CellStar shall keep PBMS
advised of its effect on CellStar's performance and of the measures being
taken to remove it.
23. CHANGES AND SUSPENSIONS
a. Subject to Section 48 below, PBMS may, by notice to CellStar, suspend,
in whole or in part, the delivery of Products and the performance of
Services or any Order. If PBMS directs any such change or suspension,
the parties shall agree to any adjustments in prices or dates
necessitated thereby and shall execute a revised Order reflecting such
adjustments.
b. Subject to Section 40 below, CellStar may not, without PBMS' prior
written consent, make any changes whatsoever with respect to the
Products or Services specified in any Order hereunder.
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24. TERMINATION AND CANCELLATION
a. Default
If either party is in material default of any of its obligations under
this Agreement and such default continues for fifteen (15) calendar
days after written notice thereof is given by the party not in
default, such nondefaulting party may cancel this Agreement and/or any
Orders which may be affected by such default.
The parties acknowledge that the first 180 calendar days of this
Agreement will involve prototype development and process refinement
and that breaches which are immaterial in nature with respect to such
efforts shall not constitute a default which shall allow the other
party to cancel this Agreement, unless however the default is ongoing
and the defaulting party does not take reasonable steps within 60
calendar days following notice of the breach, to eliminate the
default.
Default may include any of the following Events of Default which would
allow the nondefaulting party to cancel this Agreement and/or any
Orders immediately:
i) Termination of Business, Bankruptcy, Etc. Either party shall
-----------------------------------------
cease its operations or sell or otherwise dispose of all or
substantially all of its assets or there shall be change in
ownership of either party's business, an assignment for the
benefit of creditors, insolvency, appointment of a receiver or
the filing of any petition under bankruptcy or debtor's relief
laws of, or against either party.
ii) Material Adverse Change Either party shall have reasonably
-----------------------
determined that since the Effective Date, a Material Adverse
Change has occurred with respect to the other party.
iii) Representations and Warranties Any warranty, representation or
------------------------------
certification made by either party or any officer of either party
in this Agreement or in any document executed and delivered by
either party in connection therewith shall be untrue in any
material respect, in any case, on any date as of which the facts
set forth are stated or certified.
b. Termination
Provisions for termination of Orders hereunder are set forth in
Section 48 of this Agreement.
25. PARTIAL TERMINATION OR CANCELLATION
Subject to Section 48, where a provision of this Agreement or applicable
law permits PBMS to terminate or cancel an Order, such termination or
cancellation may, at PBMS' option, be either complete or partial. Subject
to Section 48, in the case of a partial termination or cancellation PBMS
may, at its option, accept a portion of the Products or Services covered by
an Order and pay CellStar for such Products or Services at the prices set
forth in such Order and the parties shall execute a revised Order to
reflect such partial termination or cancellation. The right to cancel an
Order shall also include the right to cancel any other affected Order.
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26. NONASSIGNMENT
Except as otherwise provided by law, neither party shall assign its rights
or delegate its duties ("Assignment") under this Agreement, without the
prior written consent of the other party, which consent shall not be
unreasonably withheld. Any attempted Assignment or delegation of duties in
contravention of this section shall be void and of no effect. This
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns, if any, of CellStar and PBMS. The assigning party
shall provide thirty (30) days prior written notice to the other party of
any proposed Assignment.
27. NOTICES
Except as otherwise provided in this Agreement, or applicable Order, all
notices or other communications hereunder shall be deemed to have been duly
given when made in writing and either 1) delivered in person, 2) delivered
to an agent, such as an overnight or similar delivery service, or 3)
deposited in the United States Mail, postage prepaid, and addressed as
follows:
To: CELLSTAR, LTD.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: General Counsel
To: PACIFIC ▇▇▇▇ MOBILE SERVICES
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇. ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Director - Procurement
The address to which notices or communications may be given by either party
may be changed by written notice given by such party to the other pursuant
to this paragraph entitled "Notices".
28. PUBLICITY
CellStar shall not use PBMS' or PBMS' Customers' or manufacturers' names or
any language, pictures or symbols which could, in PBMS' judgment, imply
their identity in any a) written or oral advertising or presentation or b)
brochure, newsletter, book, or other written advertising material of
whatever nature, without PBMS' prior written consent. PBMS shall not use
Open Stock manufacturers' names or any language, pictures, or symbols which
could, in CellStar's judgment, imply their identity in any a) written or
oral advertising or presentation or b) brochure, newsletter, book or other
written advertising material of whatever nature, without CellStar's prior
written consent.
29. COMPLIANCE WITH LAWS
Each party shall comply with all applicable federal, state and local laws,
regulations and codes, including, but not limited to, the procurement of
permits, certificates and licenses when needed in the performance of this
Agreement.
PROPRIETARY AND CONFIDENTIAL
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30. TITLE
Unless otherwise provided in this Agreement, title to Dedicated Products
shall vest in CellStar when the Products have been delivered by the product
suppliers or manufacturers to CellStar's destination.
31. NO THIRD PARTY BENEFICIARIES
This Agreement is for the benefit of PBMS and CellStar and not for any
other person.
32. AMENDMENTS AND WAIVERS
This Agreement may be amended or modified only by a written document signed
by authorized representatives of both parties. No course of dealing or
failure of either party to strictly enforce any term, right or condition of
this Agreement shall be construed as a general waiver or relinquishment of
such term, right or condition. Waiver by either party of any default shall
not be deemed a waiver of any other default.
33. EXECUTIVE ORDERS
Exhibit A entitled "Exhibit A - Executive Orders and Associated
Regulations" is attached hereto and made a part hereof. As used in Exhibit
A "Contractor" shall mean CellStar.
34. HEADINGS
Article, section, or paragraph headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
35. GOVERNING LAW
This Agreement and each Order shall be construed in accordance with the
domestic laws (including the Uniform Commercial Code) but not the rules
governing conflicts of law, of the State of California. To the extent that
an Order involves the performance of Services, such Services shall be
deemed to be "goods" within the meaning of the California Uniform
Commercial Code.
36. REMEDIES CUMULATIVE
Except to the extent of any conflict with the section entitled "Limitation
of Liability", any rights of cancellation, termination, or other remedies
prescribed in this Agreement are cumulative and are not intended to be
exclusive of any other remedies to which the injured party may be entitled,
including but not limited to, the remedies of specific performance and
cover, however, neither party shall retain the benefit of inconsistent
remedies. Notwithstanding the foregoing, the remedy of specific performance
shall apply only in the event of breach of 1) Section 16.c, 2) CellStar's
obligation to sell Dedicated Products only to PBMS' Customers (unless
otherwise permitted by PBMS), and 3) Section 52.
37. SEVERABILITY
If any provision or any part of a provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other portion of this Agreement.
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38. SURVIVAL
Provisions contained in this Agreement that by their sense and context are
intended to survive completion of performance, termination or cancellation
of this Agreement shall so survive.
39. PATENTS
No licenses, express or implied, under any patents are granted by either
party to the other party hereunder.
40. FORCE MAJEURE
a. Neither party shall be deemed in default of this Agreement or any
Order hereunder to the extent that any delay or failure in the
performance of its obligations results from any cause beyond its
reasonable control and without its fault or negligence, due to acts of
God, disruption of telecommunications links, acts of civil or military
authority, embargoes, epidemics, war, riots, insurrections, fires,
explosions, earthquakes, floods, unusually severe weather conditions
or strikes.
b. If any force majeure condition occurs, the affected party shall give
immediate notice to the other party and the other party may elect to:
(1) terminate the affected Order(s) or any part thereof, (2) suspend
the affected Order(s) or any part thereof for the duration of the
force majeure condition, with the option to obtain elsewhere products
and services to be furnished under such Order(s) and deduct from any
commitment under such Order(s) the products and services obtained or
for which commitments have been made elsewhere or (3) resume
performance under such Order(s) once the force majeure condition
ceases with an option in the notified party to extend any affected
delivery or performance date up to the length of time the force
majeure condition endured. Unless the notified party gives written
notice within thirty (30) days after being notified of the force
majeure condition, (2) shall be deemed selected.
41. SUBCONTRACTING PLAN
CellStar shall adopt and comply with the Exhibit(s) entitled Prime
Contractor MBE/WBE/DVBE Job Specific Subcontracting Plan and/or Prime
Contractor MBE/WBE/DVBE Commodity Product Subcontracting Plan, attached
hereto and made a part hereof.
42. MBE/WBE/DVBE CANCELLATION CLAUSE
a. If CellStar has represented itself or one of its subcontractors as a
minority- or women-owned business or disabled veteran business
enterprise: CellStar agrees that falsification or misrepresentation
of, or failure to report a disqualifying change in, the MBE/WBE/DVBE
status of CellStar or any subcontractor utilized by CellStar; or
CellStar's failure to comply in good faith with any MBE/WBE/DVBE
utilization goals established by CellStar's Subcontracting Plan; or
CellStar's failure to cooperate in any investigation conducted by
PBMS, or by PBMS' agent, to determine CellStar's compliance with this
section, will constitute a material breach of this Agreement. In the
event of any such breach,
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PBMS may, at its option, cancel this Agreement; and CellStar waives
all claims related to such cancellation.
b. As used in this Agreement, Minority and Women Business Enterprises
(MBEs/WBEs) are defined as businesses which are certified by the
California Public Utilities Commission Clearinghouse to be 51% owned
and operated by a minority individual or group or by one or more
women; for publicly-held businesses, at least 51% of the stock must be
owned by one or more minorities or women who are U.S. citizens or
legal aliens with permanent residence status. In each case, the
management and daily operations must be controlled by one or more of
those individuals. Foreign-owned firms operating in the United States
are not included in these definitions.
For the purposes of this definition, minority group members include
male or female Asian Americans, Black Americans, Filipino Americans,
Hispanic Americans, Native Americans (i.e., American Indians, Eskimos,
Aleuts and Native Hawaiians), Polynesian Americans, and multi-ethnic
(i.e., any combination of MBEs and WBEs where no one specific group
has a 51% ownership and control of the business, but when aggregated,
the ownership and control combination meets or exceeds the 51% rule).
"Control" in this context means exercising the power to make policy
decisions. "Operate" in this context means actively involved in the
day-to-day management of the business.
Disabled Veteran Business Enterprises (DVBEs) are defined as business
concerns certified as DVBEs by the California State Office of Small
and Minority Business (OSMB). The DVBE must be: (1) a sole
proprietorship at least 51% owned by one or more disabled veterans; or
(2) a publicly-owned business in which at least 51% of the stock is
owned by one or more disabled veterans; or (3) a subsidiary which is
wholly owned by a parent corporation, but only if at least 51% of the
voting stock of the parent corporation is owned by one or more
disabled veterans; or (4) a joint venture in which at least 51% of the
joint venture's management and control and earnings are held by one or
more disabled veterans.
In each case the management and control of the daily business
operations are by one or more disabled veterans. For the purpose of
this definition, a disabled veteran is a veteran of the military,
naval or air service of the United States with a service-connected
disability who is a resident of the State of California.
43. DELIVERY OF PRODUCTS AND PERFORMANCE OF SERVICES
a. All dates for shipment or delivery of Products and performance of
Services are firm and time is of the essence. Shipment or delivery
dates shall be specified in each Order. (i) In the event CellStar
fails to meet the scheduled delivery date set forth in the applicable
Order and the Customer cancels the Order, CellStar agrees to assume
return shipping costs for the canceled Products if the late delivery
was due to CellStar's error. (ii) In the event CellStar fails to
meet the scheduled delivery date set forth in the applicable Order but
the Customer nonetheless accepts the late shipment, CellStar shall, if
the CPT
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agrees, assume liability for any deductions taken by that Customer in
connection with the late shipment if the late shipment was due to
CellStar's error and within CellStar's reasonable control.
b. Notwithstanding anything to the contrary herein, PBMS understands and
agrees that CellStar shall not be responsible for same day shipping
unless CellStar receives the applicable Order by 3:00 pm, Central
Standard Time on the shipment date.
44. USE OF CELLSTAR'S PUBLISHED SPECIFICATIONS
CellStar shall, at no charge, provide PBMS with copies of CellStar's
published Specifications, user instructions, manuals and other training
materials pertaining to the Products and Services purchased hereunder.
PBMS shall have the right to reproduce any and all of such materials as
necessary for PBMS' use of such Products.
45. DOCUMENTATION
Each party shall furnish to the other at no charge, mutually agreeable
documentation, and any succeeding changes thereto, as described herein.
PBMS may reproduce such documentation for use hereunder.
46. RISK OF LOSS
Subject to the following sentence, CellStar will be responsible for risk of
physical loss of or damage to all inventories in their facilities and
during shipment to the destination specified in the applicable Order, until
such time that PBMS' Customer signs the carrier's receipt for the delivery.
CellStar shall secure and prepay cartage insurance on behalf of the
Customer and ▇▇▇▇ the Customer for such cartage insurance.
47. WARRANTIES
Services
a. CellStar warrants to PBMS that the Services provided hereunder shall
be performed in a fully workmanlike manner to PBMS' reasonable
satisfaction and in accordance with the Specifications set forth in
this Agreement and the applicable Order. CellStar further warrants
that such Services shall be free from material defects in workmanship.
This warranty shall survive inspection, acceptance and payment for a
period of one (1) year.
b. If during the term hereof, PBMS believes that there is a breach of
warranty as described herein, PBMS shall notify CellStar, setting
forth in writing the nature of such claimed breach. CellStar shall
promptly investigate such breach and advise PBMS of CellStar's planned
corrective action. Thereafter, CellStar shall either repair or
replace the affected Product, in CellStar's sole discretion. If such
breach of warranty has not been corrected within a reasonable time
(not to exceed five (5) business days from PBMS' notice to CellStar of
the breach) or if two (2) or more such breaches of warranty occur
within any thirty (30) day period, PBMS may, in addition to all other
rights and remedies provided by law or this Agreement, cancel the
Order for the Services affected by such breach.
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48. TERMINATION OF ORDERS
Services
PBMS may terminate any Order covering the Services as described in Exhibit
C and this Agreement, upon 90 calendar days written notice to CellStar.
PBMS may terminate any other Order for other types of Services upon
immediate notice. In the event of such termination, PBMS shall pay to
CellStar the reasonable cost for such Services as set forth in Exhibit B
and C, incurred by CellStar up to the date of said termination. PBMS shall
not be responsible for the cost of any work performed by CellStar after
such termination, nor for any costs incurred by CellStar's subcontractors
which CellStar could have reasonably avoided. In no case shall termination
costs exceed the amount, if any, agreed upon in the applicable Order for
such Services. CellStar shall credit or reimburse PBMS for payments made by
PBMS prior to termination to the extent such payments exceed the cost of
work performed by CellStar, up to CellStar's receipt of the notice of
termination.
49. ALTERNATE DISPUTE RESOLUTION
a. If a controversy or claim should arise, a PBMS project representative
and a project representative of CellStar, or their respective
successors in the positions they now hold (herein called the "project
representatives"), will meet in a mutually convenient location, at
least once, and will attempt to, and are empowered to resolve the
matter. Either project representative may request the other to meet
within fourteen (14) days, at a mutually agreed time.
b. If the matter has not been resolved within twenty-one (21) days of
their first meeting, the project representatives shall refer the
matter to a PBMS senior executive, who shall have full authority to
settle the dispute with a senior executive of CellStar. Thereupon,
the project representatives shall promptly prepare and exchange
memoranda stating the issues in dispute and their positions,
summarizing the negotiations which have taken place, and attaching
relevant documents. The senior executives will meet for negotiations
within fourteen (14) days of the end of the twenty-one (21) day period
referred to above, at a mutually agreed time.
c. The first meeting shall be held at the offices of the project
representative receiving the request to meet. If more than one
meeting is held, the meetings shall be held in rotation at the offices
of CellStar and PBMS.
d. If the matter has not been resolved within thirty (30) days of the
meeting of the senior executives (which period may be extended by
mutual agreement), the parties will attempt in good faith to resolve
the controversy or claim under the commercial Mediation Rules of the
American Arbitration Association, before resorting to arbitration,
litigation, or some other dispute resolution procedure.
e. If the parties cannot resolve the dispute by mediation, the
controversy or claim arising out of or relating to this Agreement,
shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association.
The decision of the Arbitrator(s) is/are considered self-execution and
failure of either party to abide by the decision may be considered to
be a breach of contract. Judgment upon the award rendered by the
arbitrator(s) may also be entered in any court having jurisdiction
thereof. for the
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purpose of determining federal diversity jurisdiction the parties are
considered residents and domicilliaries of different states.
f. Nothing in this provision shall prevent the parties from mutually
agreeing to use an alternative means to resolve the dispute, such as a
"mini-trial" or other procedure, whether or not it is sponsored by the
American Arbitration Association. Additionally, nothing in this
Section 49 shall restrict either party from seeking injunctive relief
under Section 16.c. of this Agreement and with respect to CellStar's
obligation to sell Dedicated Products only to PBMS' Customer, unless
otherwise permitted by PBMS.
50. PRECEDENCE
In the event of any conflict or inconsistency contained within this
Agreement and for purposes of resolving disputes between the parties
regarding the interpretation of this Agreement, resolution thereof shall be
made by giving precedence to the following portions of this Agreement in
the order listed:
1. Exhibits
2. Main Body
3. Orders
4. Procedures Manual (Appendix 1)
Notwithstanding the above, if PBMS includes any specific payment or
delivery instructions in the applicable Order which conflict with the
Exhibits, Main Body, or Procedures Manual, those instructions shall take
precedence over the Exhibits, Main Body and Procedures Manual but only with
respect to those specific instructions.
51. LIMITATION OF LIABILITY
In no event will either party be liable to the other under this Agreement
for any indirect, special, or consequential damages, such as frustration of
economic or business expectations, or lost profits or revenues, whether or
not the other party has been informed of the possibility of such damages.
[REDACTED] Nothing in this Section 51 shall limit either party's liability
in connection with payments or credits which are due or thereafter due and
owing from one party to the other or for any payment or credits due or
thereafter due and owing any product supplier in connection with Products
ordered from that product supplier.
52. CORPORATE AUTHORIZATION
The parties shall take any and all steps necessary or appropriate,
including without limitation, the taking of appropriate corporate action,
to implement and to give effect to the provisions of this Agreement. Each
party acknowledges and agrees that the other has entered into this
Agreement in reliance of the foregoing. Accordingly, each party agrees that
the other party may enforce this provision by obtaining specific
performance or injunctive relief. CellStar, Ltd. is a subsidiary of
CellStar Corporation which guarantees all
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__________
"[REDACTED]" indicates confidential portions omitted and filed separately with
the Commission.
MASTER AGREEMENT NO. P/PS-960163
of the obligations of and performance of CellStar, Ltd. under this
Agreement. By signing this Agreement as a duly authorized officer of
CellStar Corporation the undersigned waives individual notice to CellStar
Corporation and commits to indemnify and hold PBMS harmless from any and
all financial or performance obligations of CellStar, Ltd. which are not
carried out fully in accordance with the terms of this Agreement.
53. ENTIRE AGREEMENT
This Agreement, including all Orders, exhibits and subordinate documents
attached to or referenced in this Agreement or any Orders and all
proposals, descriptions, drawings, Specifications, marketing materials and
other literature published by CellStar in connection with or in
contemplation of any Order or of this Agreement shall constitute the entire
agreement between PBMS and CellStar with respect to the subject matter.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
PACIFIC ▇▇▇▇ MOBILE SERVICES
By: /s/ ▇▇▇ ▇▇▇▇▇
----------------------------------
(Signature)
Print Name: ▇▇▇ ▇▇▇▇▇
--------------------------
Title: Chief Financial Officer
-------------------------------
Date Signed: 10/5/96
-------------------------
CELLSTAR, LTD.
By National Auto Center, Inc., its General Partner
By: /s/ ▇.▇. ▇▇▇▇▇
----------------------------------
(Signature)
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Executive Vice President
-------------------------------
Date Signed: 10/7/96
-------------------------
BY SIGNING THIS AGREEMENT, CELLSTAR CORPORATION FULLY ACCEPTS AND GUARANTEES THE
PERFORMANCE AND FINANCIAL OBLIGATIONS OF CELLSTAR, LTD.
CELLSTAR CORPORATION CELLSTAR CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------- ----------------------------------
(Signature) (Signature)
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Print Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------- --------------------------
Title: Executive Vice President Title: Vice President
------------------------------ -------------------------------
Date Signed: 10/7/96 Date Signed: 10/7/96
------------------------ -------------------------
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EXHIBIT A
EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS
PBMS as a common carrier of telecommunications services, engage in work as
contractors for various departments and agencies of the United States
Government. Also, certain facilities may be constructed pursuant to federally
assisted construction programs. Because of the foregoing, work under this
contract may be subject to the provisions of certain Executive Orders, federal
laws and associated regulations. To the extent that such Executive Orders,
federal laws and associated regulations apply to the work under this contract,
and only to that extent, Contractor agrees to comply with the provisions of all
such Executive Orders, federal laws and associated regulations, as now in force
or as may be amended in the future, including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS
In accordance with Executive Order 11246, dated September 24, 1965, and 41
C.F.R.(S)60-1.4, the parties incorporate herein by this reference the
regulations and contract clauses required by those provisions to be made a
part of nonexempt contracts and subcontracts.
2. CERTIFICATION OF NON SEGREGATED FACILITIES
In accordance with Executive order 11246, dated September 24, 1965, and 41
C.F.R.(S)60-1.8, Contractor certifies that is does not and will not maintain
or provide for its employees any facilities segregated on the basis of race,
color, religion, sex, or national origin at any of its establishments, and
that it does and will not permit its employees to perform their services at
any location, under its control, where such segregated facilities are
maintained. The term "facilities" as used herein means waiting rooms, work
areas, restaurants and other eating areas, time clocks, restrooms, wash
rooms, locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transportation and
housing facilities provided for employees, provided that separate or single-
user toilet and necessary changing facilities shall be provided to assure
privacy between the sexes. Contractor will obtain similar certifications from
proposed subcontractors prior to the award of any nonexempt subcontract.
3. CERTIFICATION OF AFFIRMATIVE ACTION PROGRAM
Contractor certifies that it has developed and is maintaining an Affirmative
Action Plan as required by 41 C.F.R.(S)60-1.40.
4. CERTIFICATION OF FILING
Contractor certifies that it will file annually, on or before the 31st day of
March, complete and accurate reports on Standard Form 100 (EEO-1) or such
forms as may be promulgated in its place as required by 41 C.F.R.(S)60-1.7.
5. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA
In accordance with Executive Order 11701, dated January 15, 1974, and 41
C.F.R.(S)60-250.20, the parties incorporate herein by this reference the
regulations and contract clauses required by those provisions to be made a
part of Government contracts and subcontracts.
6. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS
In accordance with Executive Order 11758, dated January 15, 1974, and 41
C.F.R.(S)60-741.20, the parties incorporate herein by this reference the
regulations and contract clauses required by those provisions to be made a
part of Government contracts and subcontracts.
7. UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED BUSINESS
CONCERNS
48 C.F.R., Ch. 1, (S)19.704(4) and 19.708(a) require that the following
clause is included:
Utilization of Small Business Concerns and Small Disadvantaged Business
Concerns (June, 1985)
(a) It is the policy of the United States that small business concerns and
small business concerns owned and controlled by socially and economically
disadvantaged individuals shall have the maximum practicable opportunity
to participate in performing contracts let by any Federal agency,
including contracts and subcontracts for subsystems, assemblies,
components, and related services for major systems. It is further the
policy of the United States that its prime contractors establish
procedures to ensure the timely payment of amounts due pursuant to the
terms of their subcontracts with small business concerns and small
business concerns owned and controlled by socially and economically
disadvantaged individuals.
(b) The Contractor hereby agrees to carry out this policy in the awarding of
subcontracts to the fullest extent consistent with efficient contract
performance. The Contractor further agrees to cooperate in any studies or
surveys as may be conducted by the United States Small Business
Administration or the awarding agency of the United States as may be
necessary to determine the extent of the Contractor's compliance with
this clause.
(c) As used in this contract, the term "small business concern" shall mean a
small business as defined pursuant to section 3 of the Small Business Act
and relevant regulations promulgated pursuant thereto. The term "small
business concern owned and controlled by socially and economically
disadvantaged individuals" shall mean a small business concern:
(1) Which is at least 51 percent owned by one or more socially and
economically disadvantaged individuals; or, in the case or any
publicly owned business, at least 51 percent of the stock of which is
owned by one or more socially and economically disadvantaged
individuals; and
(2) Whose management and daily business operations are controlled by one
or more of such individuals.
The Contractor shall presume that socially and economically disadvantaged
individuals include Black Americans, Hispanic Americans, Native Americans,
Asian-Pacific Americans, Asian-Indian Americans and other minorities, or any
other individual found to be disadvantaged by the Administration pursuant to
section 8(a) of the Small Business Act.
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PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
(d) Contractors acting in good faith may rely on written representations by
their subcontractors regarding their status as either a small business
concern or a small business concern owned and controlled by socially and
economically disadvantaged individuals.
Small Business and Small Disadvantaged Business Subcontracting Plan
Contractor, unless it is a small business concern, as defined in section 3 of
the Small Business Act, agrees to adopt and comply with a small business and
small disadvantaged business subcontracting plan, which shall be included in
and made a part of this contract. The parties incorporate herein by this
reference the regulations and contract clauses required by 48 C.F.R., Ch. 1,
(S)19-704(4) and 19.708(b) to be made a part of Government contracts and
subcontracts.
8. WOMEN-OWNED SMALL BUSINESSES
As prescribed in 48 C.F.R., Ch. 1, (S)19.902, the following clause is
included in solicitations and contracts when the contract amount is expected
to be over the small purchase threshold, unless (a) the contract is to be
performed entirely outside the United States, its possessions, Puerto Rico,
and the Trust Territory of the Pacific Islands, or (b) a personal services
contract is contemplated:
(a) "Women-owned small businesses", as used in this clause, means businesses
that are at least 51 percent owned by women who are United States
Citizens and who also control and operate the business.
"Control", as used in this clause, means exercising the power to make
policy decisions.
"Operate", as used in this clause, means being actively involved in the
day-to-day management of the business
(b) It is the policy of the United States that women-owned small businesses
shall have the maximum practicable opportunity to participate in
performing contracts awarded by any Federal agency.
(c) The Contractor agrees to use its best efforts to give women-owned small
businesses the maximum practicable opportunity to participate in the
subcontracts it awards to the fullest extent consistent with the
efficient performance of its contract.
9. LABOR SURPLUS AREA CONCERNS
As prescribed in 48 C.F.R., Ch. 1, (S)20.302(a)(b), the following clauses are
included:
(a) Applicability. This clause is applicable if this contract exceeds the
appropriate small purchase limitation in Part 13 of the Federal
Acquisition Regulation.
(b) Policy. It is the policy of the Government to award contracts to concerns
that agree to perform substantially in labor surplus areas (LSA's) when
this can be done consistent with the efficient performance of the
contract and at prices no higher than are obtainable elsewhere. The
Contractor agrees to use its best efforts to place subcontracts in
accordance with this policy.
(c) Order of Preference. In complying with paragraph (b) above and with
paragraph (c) of the clause of this contract entitled Utilization of
Small Business Concerns and Small Disadvantaged Business Concerns, the
Contractor shall observe the following order of preference in awarding
subcontracts: (1) small business concerns that are LSA concerns, (2)
other small business concerns, and (3) other LSA concerns.
(d) Definitions. "Labor Surplus Area", as used in this clause, means a
geographical area identified by the Department of Labor in accordance
with 20 C.F.R.(S)654, Subpart A, as an area of concentrated unemployment
or underemployment or an area of labor surplus.
"Labor surplus area concern", as used in this clause, means a concern that
together with its first-tier subcontractors will perform substantially in
labor surplus areas. Performance is substantially in labor surplus areas if
the costs incurred under the contract on account of manufacturing,
production, or performance of appropriate services in labor surplus areas
exceed 50 percent of the contract price.
Labor Surplus Area Subcontracting Program
(a) See the Utilization of Labor Surplus Area Concerns clause of this
contract for applicable definitions.
(b) The Contractor agrees to establish and conduct a program to encourage
labor surplus area (LSA) concerns to compete for subcontracts within
their capabilities when the subcontracts are consistent with the
efficient performance of the contract at prices no higher than obtainable
elsewhere. The Contractor shall:
(1) Designate a liaison officer who will (I) maintain liaison with
authorized representatives of the Government on LSA matters, (ii)
supervise compliance with the Utilization of Labor Surplus Area
Concerns clause, and (iii) administer the Contractor's labor surplus
are subcontracting program;
(2) Provide adequate and timely consideration of the potentialities of
LSA concerns in all make-or-buy decisions;
(3) Ensure that LSA concerns have an equitable opportunity to compete for
subcontracts, particularly by arranging solicitations, time for the
preparation of offers, quantities, specifications and delivery
schedules so as to facilitate the participation of LSA concerns;
(4) Include the Utilization of Labor Surplus Area Concerns clause in
subcontracts that offer substantial LSA subcontracting opportunities;
and
(5) Maintain records showing (I) the procedures adopted and (ii) the
Contractor's performance, to comply with this clause. The records
will be kept available for review by the Government until the
expiration of 1 year after the award of this contract, or for such
longer period as may be required by any other clause of this
contract, or by applicable law or regulations.
(c) The Contractor further agrees to insert in any related subcontract that
may exceed $500,000 and that contains the Utilization of Labor Surplus
Area Concerns clause, terms that conform substantially to the language of
this clause, including this paragraph (c), and to notify the Contracting
Officer of the names of subcontractors.
2
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
EXHIBIT A-1
PRIME CONTRACTOR MBE/WBE/DVBE JOB SPECIFIC SUBCONTRACTING PLAN
Prime Contractor Name:
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Address:
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Telephone Number:
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Description Of Goods Or Services:
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The following, together with any attachments is submitted as an MBE/WBE/DVBE
subcontracting plan.
1. Do you plan to subcontract any portion of the goods or services being quoted,
bid or proposed?
YES NO
-------- --------
2. If answer to item 1 is Yes,
A. What is your overall company MBE/WBE/DVBE program goal?
*Minority Business Enterprises (MBEs) %
--------
*Women Business Enterprises (WBEs) %
--------
*Disabled Veteran Business Enterprises (DVBEs) %
--------
B. What is your projected MBE/WBE/DVBE purchases?
*Minority Business Enterprises (MBEs) %
--------
*Women Business Enterprises (WBEs) %
--------
*Disabled Veteran Business Enterprises (DVBEs) %
--------
*SEE MBE/WBE/DVBE SUBCONTRACTING PLAN CLAUSE IN AGREEMENT FOR DEFINITION OF
MBE, WBE AND DVBE
3
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
3. If answer to item 1 is No, or if no MBE/WBE/DVBE subcontractors will be
utilized where subcontracting has been identified, please explain in detail
(attach additional sheets if necessary):
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4. List the principal goods and/or services to be subcontracted to
MBE/WBE/DVBEs, should your quotation, bid or proposal be accepted (attach
additional sheets if necessary):
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5. Describe what good faith efforts you plan to undertake to ensure that
MBE/WBE/DVBEs will have an equitable opportunity to compete for subcontracts
to be awarded (attach additional sheets if necessary):
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6. Contractor agrees that it will maintain, if awarded the resulting
contract/purchase or work order, all necessary documents and records to
support its efforts to achieve its estimated MBE/WBE/DVBE subcontracting
goal(s). Contractor also agrees that it will be responsible for identifying,
soliciting and qualifying MBE/WBE/DVBE subcontractors.
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7. The following individual, acting in the capacity of MBE/WBE/DVBE coordinator
for contractor, will:
*administer the MBE/WBE/DVBE subcontracting plan and
*cooperate in any studies or surveys as may be required by PBMS in order to
determine the extent of compliance by contractor with the subcontracting
plan.
NAME:
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TITLE:
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TELEPHONE NUMBER:
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AUTHORIZED SIGNATURE:
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DATE:
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4
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit A-2 MASTER AGREEMENT NO. P/PS-960163
PACIFIC ▇▇▇▇ MOBILE SERVICES
MBE/WBE/DVBE SUMMARY SUBCONTRACTING REPORT
(Job Specific Results)
1. Reporting Corporation | 2. Contract/Purchase or | 3. This report reflects the
or Company (Name, | Work Order Number | utilization of Minority
address, city, zip | | Business Enterprise/
and telephone number) | | Women Business Enter-
| | prise/Disabled Veterans
| | Enterprise (MBE/WBE/
| | DVBE) subcontractors
| | for period
| |
| | ________________ through
| |
| | ________________________
| | (Please indicate dates)
4. SUBCONTRACT DOLLAR AND PERCENTAGE
Ethnicity Actual Cumulative
for
Period
$ | % $ | %
Polynesian Female | |
Polynesian Male | |
Filipino Female | |
Filipino Male | |
Hispanic Female | |
▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
Black Female | |
Black Male | |
Asian Female | |
Asian Male | |
Native American Female | |
Native American Male | |
Multi-Ethnic Female | |
Multi-Ethnic Male | |
Non-Minority Female | |
Disabled Veteran | |
*See Attached Definitions Percent of MBE/WBE/DVBE Purchase/Total Purchase
5
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit A-2 MASTER AGREEMENT NO. P/PS-960163
5. SUBCONTRACT ACHIEVEMENT
Subcontracting Plan Estimate Actual for Period Cumulative
MBE WBE DVBE MBE WBE DVBE MBE WBE DVBE
Subcontracted Dollars $ $ $ $ $ $ $ $ $
----- ----- ----- ----- ----- ----- ----- ----- -----
Total Contract/Purchase or
Work Order Dollars $ $
--------------------- -----------------------
Subcontracted Percent to
Total Dollars % % % % % % % % %
----- ----- ----- ----- ----- ----- ----- ----- -----
6
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit A-2 MASTER AGREEMENT NO. P/PS-960163
6. MBE/WBE/DVBE Subcontractor(s) (Name, address, city, zip, telephone number),
description of goods or service(s) supplied during this reporting and total
dollars paid. (Attach additional sheets if necessary)
Name_____________________ | _________________________ | _______________________
Address__________________ | _________________________ | _______________________
City, State, Zip_________ | _________________________ | _______________________
Telephone
Number___________________ | _________________________ | _______________________
Goods/Service(s)_________ | _________________________ | _______________________
Ethnicity________________ | _________________________ | _______________________
Total Dollars____________ | _________________________ | _______________________
7. Remarks (Explain if the actual results as identified in items 4 and 5 are
below estimated MBE/WBE/DVBE utilization goal submitted as part of this
contract/purchase or work order).
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8. MBE/WBE/DVBE | I hereby certify that | Date
Coordinator | the above information |
(Name & Title) | is true and correct |
(Print or Type) | |
| |
_______________________ | |
_______________________ | _____________________________ | ____________________
| Signature |
________________________|_______________________________|_____________________
| |
9. Approving Officer | I hereby certify that | Date
(Name & Title) | the above information |
(Print or Type) | is true and correct |
_______________________ | |
7
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit ▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇/▇▇-▇▇▇▇▇▇
_______________________ | |
_______________________ | _____________________________ | ____________________
| (Signature) |
________________________|_______________________________|_____________________
10. This summary report should be mailed
promptly to:
Pacific ▇▇▇▇ Mobile Services Note: Questions and/or
MBE/WBE/DVBE Operations Staff requests for assistance
Results and Analysis Administrator may be referenced to the
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ MBE/WBE/DVBE
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Subcontracting Administrator
at (▇▇▇) ▇▇▇-▇▇▇▇
8
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
EXHIBIT A-3
PRIME CONTRACTOR MBE/WBE/DVBE COMMODITY PRODUCT SUBCONTRACTING PLAN
Prime Contractor Name:
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Address:
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Telephone Number:
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RFQ/RFB/RFP/RFI Number (if
applicable)
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Description Of Goods Or Services:
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Definition: A commodity (or commercial) product is defined as a unit in regular
----------
production that is sold in substantial quantities to the general public and/or
industry at regular prices.
If a company is offering a commodity product, then the subcontracting plan may
relate to the company's general production of both commercial and noncommercial
products, rather than just specific items being procured under the contract.
The following, together with any attachments is submitted as an MBE/WBE/DVBE
subcontracting plan.
1. Do you plan to subcontract any portion of the goods or services being quoted,
bid or proposed?
YES NO
-------------- ---------------
2. If answer to item 1 is Yes,
A. What is your overall company MBE/WBE/DVBE program goal?
*Minority Business Enterprises (MBEs) %
--------
*Women Business Enterprises (WBEs) %
--------
*Disabled Veteran Business Enterprises (DVBEs) %
--------
B. What is your projected MBE/WBE/DVBE purchases?
*Minority Business Enterprises (MBEs) %
--------
*Women Business Enterprises (WBEs) %
--------
*Disabled Veteran Business Enterprises (DVBEs) %
--------
*SEE MBE/WBE/DVBE SUBCONTRACTING PLAN CLAUSE IN AGREEMENT FOR DEFINITION OF MBE,
WBE AND DVBE
9
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
3. If answer to item 1 is No, or if no MBE/WBE/DVBE subcontractors will be
utilized where subcontracting has been identified, please explain in detail
(attach additional sheets if necessary):
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
4. List the principal goods and/or services to be subcontracted to
MBE/WBE/DVBEs, should your quotation, bid or proposal be accepted (attach
additional sheets if necessary):
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
5. Describe what good faith efforts you plan to undertake to ensure that
MBE/WBE/DVBEs will have an equitable opportunity to compete for subcontracts
to be awarded (attach additional sheets if necessary):
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
6. Contractor agrees that is will maintain, if awarded the resulting
contract/purchase or work order, all necessary documents and records to
support its efforts to achieve its estimated MBE/WBE/DVBE subcontracting
goal(s). Contractor also agrees that it will be responsible for identifying,
soliciting and qualifying MBE/WBE/DVBE subcontractors.
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
7. The following individual, acting in the capacity of MBE/WBE/DVBE coordinator
for contractor, will:
*administer the MBE/WBE/DVBE subcontracting plan
*submit summary reports (in the form Exhibit A-4), and
*cooperate in any studies or surveys as may be required by PBMS in order to
determine the extent of compliance by contractor with the subcontracting
plan.
NAME:
------------------------------------------------------
TITLE:
-----------------------------------------------------
TELEPHONE NUMBER:
------------------------------------------
AUTHORIZED SIGNATURE:
--------------------------------------
TYPED/PRINTED NAME:
----------------------------------------
TITLE: DATE:
------------------ ------------------------------
10
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit A-4 MASTER AGREEMENT NO. P/PS-960163
PACIFIC ▇▇▇▇ MOBILE SERVICES
MBE/WBE/DVBE SUMMARY SUBCONTRACTING REPORT
(Commodity Results)
1. Reporting Corporation | 2. Contract/Purchase or | 3. This report reflects the
or Company (Name, | Work Order Number | utilization of Minority
address, city, zip | | Business Enterprise/
and telephone number) | | Women Business Enter-
| | prise/Disabled Veterans
| | Enterprise (MBE/WBE/
| | DVBE) subcontractors
| | for period
| |
| | ________________ through
| |
| | ________________________
| | (Please indicate dates)
4. SUBCONTRACT DOLLAR AND PERCENTAGE
Ethnicity Actual Cumulative Ethnicity Actual Cumulative
for for
Period Period
$ | % $ | % $ | % $ | %
Polynesian Female | | Asian Female | |
Polynesian Male | | Asian Male | |
Filipino Female | | Native American Female | |
Filipino Male | | Native American Male | |
Hispanic Female | | Multi-Ethnic Female | |
▇▇▇▇▇▇▇▇ ▇▇▇▇ | | Multi-Ethnic Male | |
Black Female | | Non-Minority Female | |
Black Male | | Disabled Veteran | |
*See Attached Definitions Percent of MBE/WBE/DVBE Purchase/Total Purchase
11
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit A-4 MASTER AGREEMENT NO. P/PS-960163
5. SUBCONTRACT ACHIEVEMENT
Subcontracting Plan Estimate Actual for Period Cumulative
MBE WBE DVBE MBE WBE DVBE MBE WBE DVBE
MBE/WBE/DVBE Purchases to
Sales % % % % % % % % %
----- ----- ----- ----- ----- ----- ----- ----- -----
12
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit A-4 MASTER AGREEMENT NO. P/PS-960163
6. MBE/WBE/DVBE Subcontractor(s) (Name, address, city, zip, telephone number),
description of goods or service(s) supplied during this reporting and total
dollars paid. (Attach additional sheets if necessary)
Name_____________________ | _________________________ | _______________________
Address__________________ | _________________________ | _______________________
City, State, Zip_________ | _________________________ | _______________________
Telephone
Number___________________ | _________________________ | _______________________
Goods/Service(s)_________ | _________________________ | _______________________
Ethnicity________________ | _________________________ | _______________________
Total Dollars____________ | _________________________ | _______________________
7. Remarks (Explain if the actual results as identified in items 4 and 5 are
below estimated MBE/WBE/DVBE utilization goal submitted as part of this
contract/purchase or work order).
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8. MBE/WBE/DVBE | I hereby certify that | Date
Coordinator | the above information |
(Name & Title) | is true and correct |
(Print or Type) | |
| |
_______________________ | |
_______________________ | _____________________________ | ____________________
| Signature |
________________________|_______________________________|_____________________
| |
9. Approving Officer | I hereby certify that | Date
(Name & Title) | the above information |
(Print or Type) | is true and correct |
_______________________ | |
13
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
Exhibit ▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇/▇▇-▇▇▇▇▇▇
_______________________ | |
_______________________ | _____________________________ | ____________________
| (Signature) |
________________________|_______________________________|_____________________
10. This summary report should be mailed
promptly to:
Pacific ▇▇▇▇ Mobile Services Note: Questions and/or
MBE/WBE/DVBE Operations Staff requests for assistance
Results and Analysis Administrator may be referenced to the
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ MBE/WBE/DVBE
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Subcontracting Administrator
at (▇▇▇) ▇▇▇-▇▇▇▇
14
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
MASTER AGREEMENT NO. P/PS-960163
EXHIBIT B
CELLSTAR
DESCRIPTION OF PRODUCTS AND SERVICES
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DESCRIPTION ONE TIME MONTHLY PRICE
FEE FEE [REDACTED]
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1 LOGISTICS
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A Hardware Costs [REDACTED]
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B Personnel Costs [REDACTED]
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C Assembly Costs [REDACTED] [REDACTED]
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D Advance Return and Pick to Ship [REDACTED]
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E Fulfillment Costs [REDACTED]
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F Returns Processing *
. Receiving and Sort [REDACTED]
. Triage and return to vendor
. Triage and repair/refurb
. Restocking Fee
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2 INVENTORY CARRYING COSTS
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A recurring charge, calculated [REDACTED]
and billed monthly as a "cost
of capital" charged on average
daily inventory plus the average
daily balance of amounts due from
PBMS for Product shipments. The
calculation shall include a credit
for average daily balance of unpaid
product supplier invoices.
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3 CREDIT AND COLLECTIONS
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A Receivable Maintenance [REDACTED]
Costs (calculated on the average
daily balance of Retailer receivables
minus the average daily balance of
amounts due to PBMS from CellStar for
receivables transferred to CellStar by
PBMS; plus a [REDACTED] of net monthly
invoices to Retailers billed by
CellStar for PBMS sales).
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B Skid Storage Fee (after [REDACTED] days) [REDACTED]
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C Credit and Collection Services [REDACTED]
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* In addition, PBMS will be billed for the difference when A stock is written
down and for return freight of non PBMS items
1
__________
"[REDACTED]" indicates confidential portions omitted and filed separately with
the Commission.
MASTER AGREEMENT NO. P/PS-960163
EXHIBIT C
PBMS Credit & Collection Costs
--------------------------------------------------------------
Item Annual Monthly Comment
--------------------------------------------------------------
Collection Analyst [REDACTED] [REDACTED] [REDACTED]
A/R Posting Rep
Lock Box
PBMS DID Line
Long Distance
D&B Investigation
Postage
Invoices
Credit Applications
EDI Transactions
AS 400
Business Analyst
Sr. Programmer
Programmer
EDI Specialist
EBE @ 20%
--------------------------------------------------------------
Sub-Total
--------------------------------------------------------------
Contingency
--------------------------------------------------------------
TOTAL
--------------------------------------------------------------
Margin
--------------------------------------------------------------
Grand Total
--------------------------------------------------------------
__________
"[REDACTED]" indicates confidential portions omitted and filed separately with
the Commission.
EXHIBIT D MASTER AGREEMENT NO. P/PS-960163
PACIFIC ▇▇▇▇ PCS PRICE LIST
OEM ACCESSORIES FOR MOTOROLA FLARE
BATTERIES
--------------------------------------------------------------------------------
SNN4512PB TALK PACK NICD BATTERY - BLACK [REDACTED]
SNN4516PB TALK PACK NIMH BATTERY - BLACK
SNN4582PB XT TALK PACK NICD BATTERY - BLACK
SNN4585PB XT TALK PACK NIMH BATTERY - BLACK
SNN4588PB STANDARD NICD BATTERY - BLACK
SNN4591PB STANDARD NIMH BATTERY - BLACK
SNN4594PB XT SLIM NICD BATTERY - BLACK
SNN4597PB XT SLIM NIMH BATTERY - BLACK
POWER PLUS TALK AND CHARGE
--------------------------------------------------------------------------------
SLN9933PB ULTRA SAVER/CHARGER
LEATHER CASE
--------------------------------------------------------------------------------
LCSXPB LEATHER CASE
OEM ACCESSORIES FOR NOKIA 2190
BATTERIES
--------------------------------------------------------------------------------
BBH2SPB ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1100 MAH NICD HICAP ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1500 MAH NIMH HICAP BATTERY
POWER PLUS TALK AND CHARGE
--------------------------------------------------------------------------------
LCH2PB RAPID IN-CAR CHARGER
LEATHER CASE
--------------------------------------------------------------------------------
LCSXPB LEATHER CASE
OEM ACCESSORIES FOR ERICSSON
CH337
BATTERIES
--------------------------------------------------------------------------------
BKB1931001PB 550MAH SLIMLINE ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ BATTERY
BKB1931015PB 700 MAH BASIC NICD BATTERY **
BKB193025PB 1000 MAH HICAP NICD BATTERY **
*BKB1931021PB ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
*▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ BATTERY
POWER PLUS TALK AND CHARGE
--------------------------------------------------------------------------------
BML1631001PB VEHICLE POWER ADAPTER PLUS **
LEATHER CASE
KRY1041032PB FLIP LEATHER POUCH **
NOTE:
"*" REPRESENTS NEW SKU
"**" REPRESENTS NEW PRICING
"PB" SUFFIX ON ABOVE PART NUMBERS REPRESENT PACIFIC ▇▇▇▇ CUSTOM PACKAGING.
__________
"[REDACTED]" indicates confidential portions omitted and filed separately with
the Commission.
EXHIBIT E MASTER AGREEMENT NO. P/PS-960163
PACIFIC ▇▇▇▇ ---------------------------------------
MOBILE SERVICES Purchase Order
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ---------------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ PURCHASE ORDER NO. REVISION PAGE
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------------
THIS PURCHASE ORDER NO. MUST APPEAR ON
ALL INVOICES, PACKING LISTS, CARTONS
AND CORRESPONDENCE RELATED TO THIS
ORDER.
---------------------------------------
SHIP TO:
---------------------------------------
VENDOR: ▇▇▇▇ TO:
--------------------------------------------------------------------------------
CUSTOMER ACCT. NO. VENDOR NO. DATE OF ORDER/BUYER REVISED DATE/BUYER
--------------------------------------------------------------------------------
PAYMENT TERMS SHIP VIA F.O.B.
--------------------------------------------------------------------------------
FREIGHT TERMS REQUESTOR/DELIVER TO CONFIRM TO/TELEPHONE
--------------------------------------------------------------------------------
ITEM PART NUMBER/ DELIVERY DATE QUANTITY UNIT UNIT PRICE EXTENSION TAX
DESCRIPTION
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
APPROVAL: TOTAL
------------------------------
AUTHORIZATION
------------------------------ ------------------ ------------------------------
Requested By Phone Name
------------------------------
Signature
------------------------------ ------------------ ------------------------------
Prepared By Phone
------------------------------
Date
--------------------------------------------------------------------------------
45
PROPRIETARY AND CONFIDENTIAL
Not for Use or Disclosure Outside
CELLSTAR, LTD. and PACIFIC ▇▇▇▇ MOBILE SERVICES
Except Under Written Agreement
EXHIBIT F MASTER AGREEMENT NO. P/PS-960163
Assembly Cost Model
[REDACTED]
__________
"[REDACTED]" indicates confidential portions omitted and filed separately with
the Commission.