SECOND AMENDED AND RESTATED DEVELOPMENT AND MANUFACTURING AGREEMENT Between PLANTRONICS B.V. and GOERTEK, INC. *** Certain information in this Agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential...
SECOND
AMENDED AND RESTATED DEVELOPMENT AND MANUFACTURING AGREEMENT
Between
PLANTRONICS
B.V.
and
GOERTEK,
INC.
*** Certain information in this Agreement
has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the
omitted portions.
This
SECOND AMENDED AND RESTATED DEVELOPMENT MANUFACTURING AGREEMENT (this "Agreement") is made and
entered into as of March 20, 2009 (the “Effective
Date”) between: PLANTRONICS B.V., a
Netherlands corporation, with principal offices at Southpoint, Building C,
Scorpius 140, 2132 LR Hoofddorp, the Netherlands ("Plantronics") and, for certain
limited purposes as set forth herein Plantronics Communications
Technology (Suzhou) Co. Ltd. (“Plantronics PCH”), and GoerTek, Inc. , a Chinese
business entity , acting on behalf of itself and its Affiliates, with its
principal place of business located at No. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇; Hi Tech Industry
Development District; ▇▇▇ ▇▇▇▇, Shandong 266031. (“GoerTek ”).
RECITALS
A. Plantronics
has developed one or more custom and unique wireless communication products and
intends to design in the future other custom and unique wireless communication
products.
B. Plantronics
from time to time wishes to have GoerTek to develop one or more custom and
unique wireless communication products solely for Plantronics.
C. Plantronics
intends to cause Plantronics PCH to transfer to GoerTek certain
“Production Equipment” (as defined below) located in China and the right to
manufacture the “Transferred Products” (as defined below);
D. GoerTek
intends to acquire such Production Equipment and to manufacture Products (as
defined below) for Plantronics pursuant to the provisions of this
Agreement;
E. GoerTek,
in addition to its development and manufacturing obligations, is also willing to
undertake the packaging obligations for the Products.
F. Plantronics
and its affiliated companies intend to purchase and GoerTek is willing to sell
production quantities of the Products manufactured by GoerTek.
G. On
July 15, 2006, the parties signed the Development Manufacturing Agreement (the
“Original Agreement”), and on November 21, 2007, the parties amended the
Original Agreement by signing an Amended and Restated Development Manufacturing
Agreement (the “First Amended and Restated Agreement”);
H.
On March 9, 2009, the parties signed a Term Sheet which set forth an
agreement in principle under which the First Amended and Restated Agreement
would be amended and restated through execution of this Agreement to reflect the
terms, conditions and intent of the Term Sheet.
I.
The First Amended and Restated Agreement, as amended and restated by this
Second Amended and Restated Agreement, shall be deemed effective from
March 20, 2009 and shall remain in effect until the expiration of the Initial
Term (as defined in Article 16).
AGREEMENT
NOW,
THEREFORE, in consideration of the promises and mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
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1.
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PURPOSES
OF THE AGREEMENT
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1.1.
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General Framework. The
purposes of this Agreement are:
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(a)
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To
ensure the timely development and certification of new Products by GoerTek
for Plantronics.
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(b)
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To
provide for the transfer of the Production Equipment to GoerTek, the
manufacture of the Transferred Products and to ensure the timely
development of the manufacturing processes necessary for the manufacture
of the Products.
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(c)
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To
define the agreement, development model, quality standards and
specifications on the Products manufactured by GoerTek for
Plantronics.
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(d)
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To
provide for the sale by GoerTek to Plantronics of Products manufactured by
GoerTek for Plantronics.
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(e)
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To
define the rights and obligations of the parties in the intellectual
property developed or transferred pursuant to this
Agreement.
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(f)
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In
the event of a dispute between the parties as to their respective rights
and obligations, to define the methods and procedures which will guide
them as they work to resolve any and all such
disputes.
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1.2.
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Development
and Manufacturing Models
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JDM (Joint Development Manufacturing)
model. Plantronics provides industrial design, product features,
performance, price and /or other requirements to GoerTek for development of the
Products. This includes products developed by Plantronics for GoerTek
to modify to create new Products for Plantronics.
ODM (Original Development
Manufacturing) model. GoerTek initiates the development of Products for
Plantronics and offers Plantronics the right to select the Products
for purchase. Plantronics may provide to GoerTek requirements on
industrial design, product features, performance, price and /or other
requirements to finalize or develop Products for Plantronics.
Bulk Pack or Retail Pack.
GoerTek shall develop packaging materials for the Products and package
the Products according to the requirements of Plantronics.
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2.
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DEFINITIONS
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2.1.
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“Affiliate” means any
entity or association directly, or indirectly through one or more
intermediaries, which controls or is controlled by, or is under common
control with, with the person
specified.
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2.2.
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“Development Completion
Date” means the date upon which Plantronics accepts the Final
Samples delivered by GoerTek as set forth in the applicable Development
and/or Manufacturing Program.
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2.3.
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“Development and Manufacturing
Program” means the program
for development and manufacturing of a Product. Each
Development Program will be attached as one or
more Exhibits to this Agreement and will incorporate all
relevant information pertaining to the relevant Product, which may
include, without limitation: Development Schedule, Product
Specifications and Tooling Specifications, Purchase Terms, Long Lead Time
Components, Plantronics Qualified Suppliers and Quality
Requirements.
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2.4.
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“Development
Schedule” means the schedule
for the development of a Product under the applicable Development and/or
Manufacturing Program.
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2.5.
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“Final Samples” means the
finalized Product as set forth in the applicable Development and/or
Manufacturing Program, to be delivered to and used by Plantronics, for
qualification testing in accordance with the final Milestone of a
Development Schedule.
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2.6.
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“Milestone” means each phase
of the Development Schedule of a Development and/or Manufacturing
Program.
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2.7.
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“Plantronics
PCH” shall mean Plantronics Communications Technology (Suzhou) Co.
Ltd.
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2.8.
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“Plantronics Test Equipment”
means electrical test equipment or fixtures that Plantronics may
provide to GoerTek for electrical testing or trouble shooting of
Products.
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2.9.
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“Production Equipment”
shall mean any production equipment, production lines, research and
development equipment, and factory tooling that GoerTek purchases from
Plantronics PCH under this
Agreement.
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2.10.
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“Products” mean any products
or parts developed and/or manufactured by GoerTek in accordance
with this Agreement and the Schedules hereto which conform to
the Specifications in the applicable Development and/or Manufacturing
Program. The defined term “Products” shall include (i) the “Current
Bluetooth Headsets” (as defined below); (ii) any new
Bluetooth product development, including the Diamond product
(collectively, “NPD”); and (iii) all related Bluetooth accessories and
spares (collectively, the “Accessories”). The Current Bluetooth
Headsets are defined as the following products: Warhol (E230), Ruby
(Discovery 925), Aruba (Voyager 520), Lego (E 390, E380), and Bora Bora
(Voyager Pro).
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2.11.
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“Purchase Order” means an
order for the purchase of Products.
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2.12.
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“ROHS”
means Restriction of Hazardous Substance
directives.
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2.13.
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“Samples” means, with
respect to a Product, the partially tested devices which are delivered to
Plantronics, upon its request, prior to delivery of fully tested Final
Samples.
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2.14.
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“Specifications” means the form,
fit and function descriptions and specifications for a Product described
in the specifications document of the applicable Development and/or
Manufacturing Program.
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2.15.
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“Test
Specifications” means the
functional and parametric tests to be performed on a Product for the
purpose of accepting or rejecting it as set forth in the applicable
Development and/or Manufacturing
Program.
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2.16.
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“Transferred Products”
shall collectively mean the Current Bluetooth Headsets, NPD and the
Accessories.
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2.17.
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“Tooling” means
the molds used for the manufacture of the component plastic parts of a
Product that is customized for Plantronics or is transferred Production
Equipment.
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2.18.
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“Web Supplier Program”
means a web based tool used by Plantronics to enable
its suppliers to manage Plantronics’ inventory
requirements. The Web Supplier Program provides GoerTek with
information on Plantronics’ inventory to enable
GoerTek to manage
accordingly.
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2.19 “WEEE” means
Waste Electrical and Electronics Equipment directives.
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3.
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MANAGEMENT
GROUP
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3.1. Supervision by Management
Group. The
parties shall supervise their performance under this Agreement through periodic
management meetings. The meetings will be conducted by a selected
group of key management personnel from both parties (the
“Management Group”), the representatives of which shall be identified
and their contact information shall be specified in Appendix B to this
Agreement.
3.2 Dispute Resolution by Management
Group. Both parties
acknowledge and agree that they must cooperate in order to ensure that the
purposes of this Agreement are achieved. GoerTek and Plantronics shall cooperate
fully with one another in connection with all matters related to their
performance of this Agreement. In the event of dispute between the
parties, the Management Group shall diligently pursue resolution of such dispute
on terms that are reasonably intended to achieve for both parties the purposes
of Agreement. If the parties are unable, despite reasonable efforts
to resolve any dispute, the differences between the parties shall be resolved
under the procedures set out in Section 24.
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4.
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COMPENSATION FOR DEVELOPMENT OF
PRODUCT. Plantronics
shall pay to GoerTek the fixed sum, Non-Recurring Engineering (NRE) and
Tooling Charge, in accordance with fees identified in the applicable
Development and/or Manufacturing Program. For purposes of clarification,
Plantronics shall not pay any compensation to GoerTek with regard to and
development related to the Transferred Products., with the exception of
the NPD products (excluding the Diamond Product) GoerTek will
not receive any other compensation for its development efforts under this
Agreement unless specifically agreed otherwise in writing by
Plantronics.
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5. DESIGN AND MANUFACTURING CHANGES
5.1 Design Changes Requested by
Plantronics or
GoerTek. Either
party may, at any time during the term of this Agreement, request necessary
changes to the Specifications. Either party may submit a request in
writing to the other party for a change to the Specifications. GoerTek must
provide to Plantronics detail of change requested, a detail cost impact analysis
and an estimate of any schedule change resulting from a request to change the
Specifications.
5.2 Design Changes
Affecting Development Schedule. Plantronics must approve any
changes in the Development Schedule or Plantronics’ purchase price for the
Product. GoerTek must provide to Plantronics a detailed cost impact analysis and
an estimate of any schedule change resulting from a request to change the
Specifications.
5.3 Changes in
Manufacturing Process or Location. GoerTek must not make any
change to its manufacturing process or location (currently located at Weifang,
China) without prior written approval from Plantronics. GoerTek shall notify
Plantronics a minimum of 6 months in advance of any manufacturing process or
location change to provide sufficient lead time for Plantronics to do
qualification, including samples qualification on Products.
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6.
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PURCHASE
OF PRODUCTION EQUIPMENT
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6.1
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Purchase of Production
Equipment. GoerTek shall have the right (but
not the obligation) to purchase from
Plantronics PCH any Production Equipment
that GoerTek may reasonably need to fulfill this Agreement. The
parties intend that GoerTek shall purchase all of the Production Equipment
it may need from Plantronics PCH rather than obtaining or using such
equipment from other sources. GoerTek shall purchase such Production
Equipment at “Net Book Value” (as defined in Section 6.2
below). For purposes of clarification, Plantronics PCH shall
offer to transfer all of its factory tooling to GoerTek and GoerTek shall
have the option to purchase any of such tooling at a price based upon Net
Book Value. With respect to any Plantronics tooling that is in
the possession of its suppliers, Plantronics shall transfer any of such
tooling that GoerTek may need but Plantronics shall continue to own such
tooling. The transfer of all tooling shall be handled through the Transfer
Plan.
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6.2
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Net Book Value &
Taxes. The “Net Book Value” of the Production
Equipment shall mean the net book value as recorded in Plantronics
accounting records in United States Dollars under United States
GAAP as of February 28, 2009, less normal depreciation recorded under
United States GAAP from the period February 28, 2009 to the purchase date
plus any additions, if any, from the period February 28, 2009 through the
date of purchase. GoerTek shall exercise its right to purchase from
Plantronics any Production Equipment by June 30,
2009.
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For
purposes of clarification, Plantronics and GoerTek shall reasonably negotiate
the purchase price of the Production Equipment based upon the Net Book Value.
GoerTek shall pay all taxes and duties (including VAT transfer taxes) associated
with its purchase of the Production Equipment. For purposes of clarification,
this will not include any taxes related to any tax credits that Plantronics may
have received from the Chinese government in connection with the establishment
of its Chinese facility or the original purchase of the Production
Equipment.
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6.3
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Payment of Logistics
Costs. GoerTek shall pay all of the logistics
costs related to the transfer of the Production Equipment under the
Transfer Plan as set forth on Exhibit E hereof. The parties shall mutually
agree as to the costs that shall be set forth on Exhibit E. Plantronics
shall use its best efforts to cause its suppliers to transfer the tooling
and other required Production Equipment to GoerTek. For purposes of
clarification, in the event Plantronics is unable to transfer any tooling
necessary for the manufacture of the Transferred Products, GoerTek shall
pay the costs of repeat tooling up to a maximum amount of
$80,000. The parties intend that the transfer of the
Transferred Products shall be completed within four months after
Plantronics directs GoerTek to begin manufacturing
production.
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6.4
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Repurchase
Option. Upon the termination of this
Agreement, Plantronics shall have the option to repurchase any
tooling equipment that it sold to GoerTek at the same price that GoerTek
paid for such equipment. With respect to supplier tooling (i.e., where
Plantronics has retained title to the tooling), Plantronics may require
that GoerTek either return such tooling or destroy
it.
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6.5
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Sale of
Inventory. GoerTek hereby agrees to purchase all of
Plantronics raw materials and components of the Transferred
Products at the most updated pricing that Plantronics paid its
suppliers. In the event that any such inventory is more than ten (10)
weeks old, Plantronics and GoerTek shall negotiate a fair and
reasonable price in good faith. Plantronics shall use its best
efforts to support GoerTek’s vertical integration starting on August 1,
2009.
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7. PRODUCT
MARKING
7.1 Marking. GoerTek will ▇▇▇▇
each Product with a unique sequential serial number, the date of manufacturing,
and the technical revision on bottom of the product housing, as well as any
other markings as required in the Specifications of each Development and
Manufacturing Program.
7.2 Country of Origin. GoerTek will ▇▇▇▇
each Product with country of origin as required by the customs authorities of
the country where the Products will be delivered to
Plantronics. GoerTek will provide to Plantronics these certificates
of origin of the Product as are reasonably requested by
Plantronics.
7.3 No Other Marks. Except for
marking Products as provided in this Section 7, GoerTek will not use any
trademark, trade name, trade dress or any name, picture, or logo which is
commonly identified with Plantronics or any of its parent, subsidiary or
affiliate companies without the express written permission of
Plantronics. GoerTek will completely remove the marking or name on a
Product which has not been authorized by Plantronics.
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8.
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USER GUIDE AND RELATED RETAIL
PACK MATERIALS. From time
to time, Plantronics at its sole discretion may require GoerTek to develop
and purchase retail pack materials and package the Products. GoerTek will
complete such services according to the specifications and information
provided by Plantronics. All such packaging materials must be pre-approved
by Plantronics prior to production. In addition, if requested by
Plantronics, GoerTek will provide all relevant information relating to the
Product to enable Plantronics to create it own packaging and marketing
materials for the Product.
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9. QUALITY
9.1 Conformance to
Specifications. GoerTek will
manufacture Products to be 100% in conformance with the Specifications and
Plantronics' quality acceptance requirements as identified in the each
Development and/or Manufacturing Program or other documentation as provided by
Plantronics. GoerTek will only use components and materials that are qualified
and approved by Plantronics on manufacturing of Products. GoerTek will ensure
that the Products meet quality acceptance requirements and functional tests as
required in the applicable Development Manufacturing Program. GoerTek
must maintain an inspection procedure and quality assurance program for the
Products to ensure compliance with the requirements under this Section
9.1. GoerTek s failure to comply with quality requirements
will be a material breach of this Agreement. The quality requirements
are set forth at Exhibit
G hereof and as Exhibit G may hereafter be updated.
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9.2
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Plantronics Testing
Equipment. Plantronics may provide to GoerTek, free of
charge and at its sole discretion, electrical test equipment or fixtures
solely to assist in testing and trouble shooting the Products. If requested by
Plantronics or if GoerTek ceases to manufacture the Products, GoerTek will
deliver all Plantronics Test Equipment to Plantronics as listed in the
Development and/or Manufacturing Program attached
hereto. GoerTek will surrender the Plantronics Test Equipment
in its original condition, reasonable wear and tear resulting from use or
passage of time excepted.
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9.3
Source Inspection. GoerTek will
permit Plantronics to enter its premises, at reasonable times, for the purpose
of inspecting and testing units of the Product and to check the materials and
method of manufacture, assembly, labeling, testing and packaging in order to
ensure that the same conform to the Specifications and the requirements of this
Agreement. GoerTek , without additional charge, will provide
reasonable assistance to Plantronics to facilitate these
inspections. If GoerTek experiences problems with its suppliers which
result in delays or inability to deliver Products to Plantronics or result in
epidemic failures as described in Section 14.5, then GoerTek
will notify and work with Plantronics to remedy these problems. GoerTek is
solely responsible for any defect or other failure in the Product to meet the
Specifications and requirements of this Agreement. Plantronics may
inspect Products delivered to it at any time. Plantronics will use its best
efforts to cooperate with GoerTek in mitigating any quality issues that result
from any defects caused by Plantronics vendors.
9.4 Incoming Inspection. Plantronics may
inspect and test all Products prior to acceptance or rejection, and may refuse
to accept Products which do not conform to the
Specifications. Plantronics may reject Product during the first 30
days after receipt. GoerTek will replace all non-conforming Products
within 30 days from the date received from Plantronics and will pay return
shipping costs. Plantronics’ payment for delivered Products does not
constitute acceptance of those Products by Plantronics.
9.5 Process Review. Plantronics has
the right to review GoerTek 's manufacturing and quality assurance processes and
to requalify the Product periodically upon notice to GoerTek . GoerTek will
implement all necessary changes required by Plantronics based upon its review of
GoerTek’s procedures.
9.6 Process Control Data. Upon request
GoerTek shall provide to Plantronics statistical process control data on
critical processes and yield and failure analysis reports detailing the cause of
the failure. GoerTek shall provide these reports to Plantronics in a
format and frequency mutually agreed upon by GoerTek and
Plantronics.
9.7 Regulatory
Approval. GoerTek must obtain and maintain regulatory
approvals and listings for the Product, if requested by Plantronics to do so in
writing, including all required recurring compliance testing.
9.8 Compliance with
Regulations. GoerTek must comply with all laws, rules and
regulations applicable to its performance of this Agreement, including those
relating to hazardous materials, toxic substances. The Products must comply with
RoHS and WEEE directives from regulatory organizations.
10. PRODUCT
PRICING
10.1 Price for Products . GoerTek will
sell the Products (other than Transferred Products) to Plantronics at the
per-unit price for each Product based on the pricing identified in the
Development and/or Manufacturing Program for that Product The pricing
may be changed only upon a written statement signed by authorized
representatives of both parties. Plantronics will pay for the
Products in United States Dollars.
10.2 No Additional Charges. Plantronics’
purchase price for the Products will not include any additional amounts, without
Plantronics’ prior written consent.
10.3 Sales Taxes. Plantronics will
pay applicable sales or use taxes, as well as any applicable import duties at
the destination country.
10.4 Price Increase. Any
reasonable increases in prices require prompt notice to Plantronics with reason
and details, and are subject to Plantronics’ prior written approval. Plantronics
shall response within 5 days after receipt of GoerTek’s notice.
10.5
Pricing for Transferred
Products; MFN. Goertek shall provide Plantronics with the
pricing for the Transferred Products as set forth at Exhibit F to this
Agreement. GoerTek shall quote overhead and margin pricing for Diamond that
shall not exceed such pricing for Ruby. During the Term of this
Agreement, GoerTek shall provide terms and conditions (pricing and
otherwise) with respect to the manufacturing of the Transferred Products that,
when taken as a whole, are no less favorable to Plantronics than those offered
by GoerTek to any other customer on a worldwide basis irrespective of volume
commitments. If GoerTek grants to any third party pricing and/or
other material terms (taken as a whole) with respect to the manufacturing of the
Transferred Products that are more favorable than the pricing and/or other
material terms (taken as a whole) offered to Plantronics pursuant to this
Agreement, then GoerTek shall promptly make such more favorable pricing and
terms available to Plantronics, which shall be made effective as of the date
first offered to the other party. Upon request, GoerTek shall provide
Plantronics with a certificate to the effect that it is in compliance with this
Section.
10.6. Reduction of Manufacturing
Cost. *** Certain information in this section has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
10.7. Plantronics Audit Right.
Within thirty (30) days after the expiration of each calendar quarter, GoerTek
shall provide Plantronics with a current ▇▇▇▇ of materials from its suppliers
for each Transferred Product, together with all other reasonably necessary
information, to demonstrate compliance with Section 10.6. Plantronics
shall have the right to audit such ▇▇▇▇ of materials and other information upon
its request.
GoerTek
shall have no obligation to provide such ▇▇▇▇ of materials with respect to any
of its microphone or speaker products. With respect to such microphone and
speaker products, Plantronics shall have the right to obtain pricing proposals
for the manufacture of such products through a request for proposal directed to
any reputable manufacturer. In the event that any response to such a request
demonstrates that the pricing for the manufacture of such product is lower than
that offered by GoerTek, GoerTek shall meet the price offered by such
manufacturer. If GoerTek is unable to meet such price, then Plantronics shall
have the right to purchase such products from the manufacturer.
10.8. Pricing for Spares and
Accessories. Goertek will provide pricing for Spares and Accessories
which is equal to BOM cost plus three percent (3%) for
handling.
11. PURCHASE
ORDERS AND RELEASES
11.1 Order Lead Time. Order lead time
is the number of days between the date Plantronics sends a purchase order to
GoerTek and the date GoerTek delivers the Product to Plantronics’ delivery
location. The order lead time for each Product is identified in the applicable
Appendix or Exhibit.
11.2 Purchase Orders.
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(a)
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Web Supplier Purchases.
Both parties shall mutually agree by each Product to be managed by
Plantronics’ Web Supplier Program. A Joint Service Agreement shall be
mutually executed by the parties prior to implementing the Web Supplier
Program. Plantronics will issue a blanket Purchase Order for Products
purchased in accordance with the Web Supplier
Program.
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(b)
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Purchase Order
Purchases. All other purchases of Products will be
initiated by Plantronics’ issuance of written Purchase Orders with
signature of authorized representative sent by mail, facsimile or
electronic transmission. The Purchase Orders will identify the part number
and quantity of Product to be purchased, the delivery schedule, method of
delivery, the destination and a confirmation of the
price.
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(c)
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Fulfilling Purchase
Orders. GoerTek will manufacture and ship Products only
in accordance with purchase order releases placed by
Plantronics.
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11.3 Acknowledgments. GoerTek is bound
by all terms of each purchase order release placed by Plantronics under this
Agreement unless GoerTek notifies Plantronics in writing of its objection to any
terms or conditions contained in a purchase order. GoerTek must
provide its written objections to a purchase order within 3 days from the date
of the purchase order. This Agreement sets forth the terms and conditions
applicable to all issued Purchase Orders. The term and conditions of
this Agreement replace in their entirety any and all of the pre-printed Purchase
Order terms and conditions appearing on the Purchase Order forms and on any
order acknowledgment issued by GoerTek. Upon acceptance by GoerTek ,
each Purchase Order constitutes a firm and binding contract consisting of the
terms of: (1) this Agreement; (2) Appendixes and Exhibits to this Agreement; (3)
any terms conspicuously typewritten on the face of the Purchase Order that are
not inconsistent with the terms of this Agreement; and (4) any terms
conspicuously written on the face of any written acceptance of such Purchase
Order which are not inconsistent with the terms of this Agreement, the terms of
the Exhibits and the terms of the Purchase Order.
11.4 Rescheduling. Subject to
different Purchase Terms under a Development and Manufacturing Program,
Plantronics can change the shipping instructions, quantities or delivery dates
specified in a purchase order release by delivering to GoerTek a written change
order (“Change Order”). Plantronics may reschedule out the quantities
to be delivered under a purchase order released based on the schedule below
without incurring any penalties:
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Number
of Days Advance Notice
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Percentage
of Scheduled Shipment That May Be Rescheduled Out
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0
to 30 days
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25%
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31
to 60 days
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50%
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more
than 60 days
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Up
to 100%
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GoerTek
will provide its best effort to meet Plantronics request for reschedule in the
quantities to be delivered under a purchase order released.
11.5 Cancellation. Subject to different
Purchase Terms under a Development and Manufacturing Program, Plantronics can
cancel all or a part of a purchase order release by delivering to GoerTek a
written Change Order. After receive of cancellation notice GoerTek shall make
reasonable effort to stop production, cancel materials with its suppliers, and
mitigate excess materials to other products as much as possible to reduce
Plantronics liability. The percentage of a purchase order release that may be
canceled and the number of days advance notice required is set forth
below:
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Number
of Days Advance Notice
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Percentage
of Scheduled Shipment that May Be Canceled
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0
to 30 days
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Up
to 0%
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31
to 60 days
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Up
to 50%
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More
than 60 days
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Up
to 100%
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11.6 Limitation of Cancellation
Charges. Subject
to different Purchase Terms under a Development and/or Manufacturing Program, in
the event of cancellation of a purchase order, Plantronics' sole obligation
shall be to accept and pay for scheduled finished Product at the stated unit
price, to pay for actual costs incurred with respect to Products in process,
materials purchased per lead time and to pay for the long lead time materials as
provided in Exhibit which have been procured and are not cancelable with its
suppliers. Both parties agree to negotiate such costs in good faith and that the
cancellation charges will in no event exceed the value of the canceled purchase
order.
11.7 Forecast.
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(a)
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If
Plantronics’ inventory requirement for a Product is not available through
Plantronics’ Web Supplier Program, then on a monthly basis, Plantronics
shall provide GoerTek with a rolling 3-6 months non-binding forecast
showing projected quantity requirements for Products. GoerTek shall not
take action to purchase materials or to manufacture Products based on any
forecasts. GoerTek agrees that there is no liability to Plantronics if
GoerTek chooses to procure materials or to manufacture Products based on
any forecasts delivered by
Plantronics.
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(b)
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If
Plantronics’ inventory requirements for a Product are available through
Plantronics’ Web Supplier Program, GoerTek shall access Plantronics’ Web
Supplier Program website to find Plantronics’ forecast for each Product
for the rolling 3-6 months period.
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11.8 Manufacturing Capacity. GoerTek
represents and warrants that it has the manufacturing capability to produce all
of Plantronics’ requirements for the Products. GoerTek will promptly
notify Plantronics if GoerTek has any reason to believe that it may not be able
to meet Plantronics’ production requirements. GoerTek will reserve
production capacity sufficient to manufacture Products at 100% quantity
indicated by Plantronics’ forecast.
12. TRADE
TERMS, SHIPPING AND DELIVERY
12.1 Trade Term. GoerTek agrees to
the trade term of:
(a) ‘Free
Carrier At’ to Plantronics’, as defined by Incoterms 2000, to Plantronics
selected logistics provider in Qingdao for air shipment. GoerTek will ship
Products by freight collect to the order of Plantronics to the destination
specified in Plantronics' purchase order release.
(b) ‘Delivered
Ex Ship to named port of destination’, as defined by Incoterms 2000, to
destination port named by Plantronics via ocean shipment. GoerTek
shall pay for freight charges and insurance charges under the term. Insurance
coverage is 110% of the value of a shipment. Freight and insurance rate shall be
prior agreed by Plantronics. Plantronics shall reimburse GoerTek for the amount
of freight charges and insurance charges (‘DES logistics charges’) GoerTek
paid.
If
GoerTek ships any Product by a method other than that specified in Plantronics'
purchase order release or written instruction, GoerTek will reimburse
Plantronics for any increase in the cost of freight over the cost which would
have been incurred had GoerTek complied with Plantronics'
instructions. Plantronics may make changes in the trade term,
shipment method, packing or place of delivery. If Plantronics
requests a change that causes an increase or decrease in the cost of or time for
delivery, GoerTek will notify Plantronics of the cost or time changes within 3
days from the date of Plantronics’ requested change. GoerTek must
provide supporting documentation for the cost or time change.
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12.2
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Packaging and
Shipping Documentation. Plantronics will provide GoerTek
with written routing instructions for the shipment of Products (the
“Routing Instructions or Advance Shipping Notice”). GoerTek
must ensure that Product packing and packaging conforms to good commercial
practice, Plantronics' specifications, government regulations and other
applicable standards. GoerTek must ▇▇▇▇ each container with
necessary handling and shipping information. GoerTek will be
liable for material damaged as a result of improper or insufficient
packing or packaging.
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12.3 Packing Slip. Except as
otherwise stated by written instruction from Plantronics, each shipment must be
accompanied by a packing slip placed inside a clear plastic
envelope. The packing slip and clear plastic envelope must be placed
on box number “one” of the shipment. The packing slip must include the following
information:
(a) Plantronics’
part number;
(b) description
of product;
(c) purchase
order number;
(d) shipment
date;
(e) shipment
weight (net, gross);
(f) shipment
quantity;
(g) number
of boxes;
(h) harmonized
tariff schedule;
(i) country
of origin; and
(j) any
other information as requested on the relevant purchase order.
12.4 Delivery Dates. GoerTek will
deliver the Products in accordance with the scheduled delivery date in
Plantronics' purchase order release. If GoerTek is unable to meet the
scheduled delivery date, GoerTek will notify Plantronics in writing at least 21
days before the scheduled delivery date. If GoerTek cannot meet the
scheduled delivery date without Plantronics’ fault, GoerTek will expedite
shipment at its own cost to ensure timely delivery of the
Products. Plantronics may cancel any order for Products which is
delayed by more than 30 days. GoerTek cannot deliver Products more
than 3 days in advance of the delivery date specified by Plantronics or over
ship Product without first obtaining Plantronics' written
consent. Plantronics may return any incorrect shipment at GoerTek's
expense, or hold the shipment for credit against future releases and delay
processing the corresponding invoice until the scheduled delivery date.
Plantronics may also recover of the costs of any air freight or other costs of
expediting shipment if the failure to deliver is due to the fault of GoerTek and
Plantronics establishes that the shipment was required to be expedited in order
to meet Plantronics customer requirements.
12.5 Title and Risk of Loss. Title to Products and risk
of loss pass to Plantronics when GoerTek delivers the Products to Plantronics
according to Trade Term, Section 12.1.
12.6 Dock-to-Stock
Program. This program is only on selected Plantronics’
suppliers which have demonstrated high level of quality such that Plantronics
allows products to be delivered to Plantronics stockroom without source
inspection and incoming inspection. If requested by Plantronics, GoerTek will
participate in Plantronics’ dock-to-stock certification program and will use its
best efforts to meet the statistical process control practices and reporting
requirements of this program.
13. INVOICES
AND PAYMENT
13.1 Invoices.
(a) Commercial
invoices on Products: GoerTek will issue Products invoices to Plantronics’
Accounts Payable department. GoerTek will include on each invoice:
Plantronics’ purchase order number, unit price and total amount, quantity, date,
invoice and packing list number. Invoice date shall be the date a
vessel arrived to named destination port on DES term for ocean shipment, or the
date Products delivered to Plantronics’ selected logistics provider on FCA term
for air shipment.
(b) Invoices
on DES logistics charges: GoerTek shall issue invoices on DES
logistics charges to Plantronics designated personnel or
department. GoerTek will include on each
invoice: commercial invoice number, itemizes each charges and with
supporting document of such charges issued by logistics provider and insurance
agent.
13.2 Payment Term. Plantronics
will pay invoices (1) within 30 days after shipment on FCA term; (2) within 10
days after vessel arrived to destination port on DES term for standard
Plantronics issue purchase orders or CVMI payment terms. Plantronics
will use commercially reasonable efforts to increase its credit limit in China.
This may include providing information and attending meetings with
GoerTek.
14. WARRANTIES
14.1 Warranty. GoerTek warrants
that Products delivered under Agreement are:
(a) new;
(b) free
and clear of all liens and encumbrances;
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(c)
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in
accordance with all Specifications and requirements of the applicable
Development and Manufacturing Program;
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(d)
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conforms
with the applicable Purchase Order;
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(e) free
from defects in design, if Products are designed by GoerTek;
(f) free
from defects in workmanship, materials and performance; and
(g) is
suited for the Products intended use.
14.2 Warranty
Period. The Product warranty is effective for 15 months from
the shipment date (the “Warranty
Period”). The Product warranty survives any delivery,
inspection, acceptance, or payment by Plantronics.
14.3 Remedies.
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(a)
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Return, Repair or
Credit. If any Product is not in compliance with the
Product warranty or with the requirements of this Agreement or any
purchase order, Plantronics is entitled
to:
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(1)
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return
the Product for replacement or repair at GoerTek 's
expense;
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(2)
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repair
the Product and recover Plantronics' reasonable expenses of repair;
or
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(3)
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return
the Product to GoerTek and receive a credit for the purchase
price.
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(b)
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Response Time and Freight
Charges. If Plantronics selects alternative (1), GoerTek
must return the replaced or reworked Product within 30 days after receipt.
GoerTek must pay freight to return to Plantronics any Product being
replaced or reworked and reimburse Plantronics for transportation charges
incurred by Plantronics in returning Products to
GoerTek.
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14.4 Notice of Defects. If GoerTek
becomes aware of any defect in the Product, GoerTek must immediately notify
Plantronics, specifying the nature of the defect or nonconformity, and what, if
any, corrective action GoerTek plans to take and the timing of such corrective
action.
14.5 Epidemic Failure. GoerTek warrants
that the Product, exclusive of consumable materials, will meet a 1% or less
failure rate, of a single failure mode. If Plantronics finds that the
Product does not conform to this quality requirement, it will notify GoerTek
.. GoerTek will then determine the cause of the non-conformance and
work with Plantronics to develop a mutually agreed corrective action plan and
will implement that plan to correct the defect. GoerTek will provide Plantronics
with regular progress reports of the corrective action until the defect is
corrected. Plantronics may return all Products that GoerTek shipped
in the past 12 months for rework and re-inspection. GoerTek will
perform all necessary rework or replacement of the defective Products at
GoerTek’s sole expense, including all Product transportation costs to receive
from, and deliver to Plantronics.
15. TRANSFER
OF MANUFACTURING
15.1 Notice of Potential Transfer of
Manufacturing. In the event this Agreement is terminated or
GoerTek is not able to manufacture Products to meet Plantronics’ requirements,
including, without limitation, quality, quantity, timing and specification
requirements, and Plantronics desires to transfer the manufacturing of some or
all of the Products to a third party manufacturer, Plantronics will provide
GoerTek with notice of such intent to transfer. Such notice shall
identify the new manufacturer, state the anticipated volume of manufacturing to
be continued by GoerTek and provide such other information as is reasonably
required by GoerTek to commence the process of transfer of
manufacturing.
15.2 Supplier Assistance in Transfer of
Manufacturing. After receipt of any notice from Plantronics as
provided in Section 25.5
GoerTek will assist in transferring the production of the Products, in
whole or in part, to the alternate source of manufacturing identified in the
notice provided by Plantronics. Such assistance shall include
transfer and set up of the Tooling.
15.3 Plantronics To Bear Cost of Transfer
of Manufacturing. Plantronics shall reimburse to GoerTek the
reasonable costs incurred by GoerTek to transfer manufacturing to the alternate
source as mutually agreed between the parties.
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16.
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TERM. This
Agreement will take effect on the Effective Date and expire
three (3) years thereafter (the “Initial Term”), unless
earlier terminated by the parties in accordance with Section 17. At
the end of the Initial Term, this Agreement will be automatically renewed
for additional 1 year terms unless either party gives written notice of
its intention not to renew at least 6 months prior to the scheduled
expiration date. Notwithstanding any provision of this Agreement to the
contrary (including any earlier termination under Article 17 hereof),
Appendix D (Competitors and Restricted Products) shall survive for a
period of one year after the expiration of the Initial Term or any renewal
thereof.
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17. TERMINATION
OF AGREEMENT
17.1 Termination Without Cause. After the
exclusive manufacturing rights set forth in Section 20.2 (a) hereof expire,
Plantronics may terminate this Agreement or any or all outstanding purchase
orders, or both, without cause at any time upon 120 days written notice to
GoerTek. GoerTek must stop all work in process and cancel all
outstanding obligations relating to the affected purchase orders upon receipt of
notice of termination from Plantronics. Plantronics' sole obligation
as a result of a termination under this Section 17.1 is to compensate
GoerTek for the canceled purchase orders in accordance with Section 11.5 and
11.6.
17.2 Termination for
Bankruptcy. Plantronics may
terminate this Agreement immediately upon notice to GoerTek if:
(a) GoerTek
fails to pay its debts generally as they become due;
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(b)
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GoerTek
becomes the subject of a voluntary' or involuntary petition in bankruptcy
or any proceeding relating to insolvency, receivership, liquidation or
composition for the benefit of
creditors.
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17.3 Termination for
Default.
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(a)
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Plantronics Terminate for
Breach. Plantronics may terminate this Agreement if
GoerTek breaches a material provision of this Agreement and fails to cure
within 30 days of receiving notice from
Plantronics.
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(b) Breaches. A breach
of the Agreement includes, but is not limited to, the following
events:
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(1)
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GoerTek's
failure to make a delivery of Product in accordance with the requirements
of this Agreement or any purchase order. If GoerTek fails to
deliver Products on the scheduled delivery date, Plantronics may, without
prejudice to any other rights it may have, cancel the purchase order
release without liability to GoerTek
;
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(2)
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GoerTek's
failure to provide Plantronics, upon request, with reasonable assurances
of future performance;
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(3)
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GoerTek's
failure to replace or rework non-complying Products in a timely manner as
required by Section 14;
or
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(4)
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GoerTek’s
actions that endanger performance of this Agreement in accordance with its
terms.
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17.4
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Remedies on Default. If
Plantronics terminates this Agreement in accordance with Section 17.3
(Termination for Default), Plantronics may, at its sole
discretion:
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(a)
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Plantronics’ Right to Pursue
Alternative Source. Purchase an alternative product to
replace the Product that GoerTek cannot deliver in accordance with this
Agreement. In that case, GoerTek will reimburse Plantronics for
all additional costs incurred by Plantronics in purchasing the alternative
products; or
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(b)
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Plantronics’ Right to
Manufacture Product. Manufacture or subcontract a third party to
manufacture the Products, in which case GoerTek will provide to
Plantronics at GoerTek ’s sole expense all manufacturing rights to the
Products, including transfer of all tooling and necessary documents
reasonably required to enable Plantronics to manufacture the
Products.
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17.5 No Limitation on Remedies. Plantronics is
entitled to all remedies available to it under this Agreement and at law or in
equity.
17.6 Return of Information. Upon termination
of this Agreement for any reason, GoerTek will promptly return to Plantronics
all information and materials relating to Plantronics and the
Product.
17.7 Continued Right to Purchase After
Termination or Expiration. Upon termination
of this Agreement for any reason other than default by Plantronics, Plantronics
may issue purchase orders within 30 days of the date of
termination. The purchase orders must provide for shipment of
Products ordered within 6 months after the termination date of this
Agreement.
17.8 Survival of Terms. In addition to
any provision of this Agreement which specifically provides for survival,
Sections 6 (Tooling), 14 (Warranties), 18 (Intellectual Property) 21
(Indemnity and Insurance), 22 (Confidential Information and Ownership of
Intellectual Property), 24 (Dispute Resolutions), and 25 (General Provisions)
will survive a termination of this Agreement. In addition,
Sections 5 through 13 (governing manufacture and sale of the Products) will
also survive termination of this Agreement with respect to the delivery of
Products following termination.
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18.
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INTELLECTUAL
PROPERTY
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18.1
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Title to
Inventions. GoerTek agrees that all copyrightable
material, notes, records, drawings, designs, photographic imagery,
inventions, improvements, developments, discoveries and trade secrets
(collectively, the "Inventions") conceived,
made or discovered by GoerTek, solely or in collaboration with Plantronics
in connection with Products developed under this Agreement, are intended
to be for the sole benefit of Plantronics and its affiliates and are
"specifically ordered or commissioned work" and "work-made-for-hire" as
those terms are defined by the United States Copyright Act. For purposes
of clarification, “Inventions shall include any intellectual property that
is transferred to GoerTek in connection with the Transfer Plan or that is
owned by Plantronics but is transferred to GoerTek by any current or
former Plantronics associates.
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18.2
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Assignment. To the extent
that any portion of the Inventions do not so qualify, GoerTek agrees to
and does hereby irrevocably assign and transfer to Plantronics all of
GoerTek's right, title and interest (including all copyrights, trademarks,
patents, trade secrets, moral rights and other proprietary rights, with
respect to the United States, China and any other country) in and to such
Inventions. At Plantronics' request and expense, GoerTek shall execute and
deliver such instruments and take such other action as may be requested by
Plantronics to perfect or protect Plantronics’ rights in the Inventions
and to carry out the assignments contemplated in this
Article.
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18.3
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Protection
of Inventions. GoerTek
agrees to assist Plantronics, or its designee, at Plantronics’ expense, in
every proper way to secure Plantronics’ rights in the Inventions and any
copyrights, patents, mask work rights or other intellectual property
rights relating thereto in any and all countries, including the disclosure
to Plantronics of all pertinent information and data with respect thereto,
the execution of all applications, specifications, oaths, assignments and
all other instruments which Plantronics shall deem necessary in order to
apply for and obtain such rights and in order to assign and convey to
Plantronics, its successors, assigns, and nominees the sole and exclusive
rights, title and interest in and to such Inventions, and any copyrights,
patents, or other intellectual property rights relating
thereto. GoerTek further agrees that GoerTek's obligation to
execute or cause to be executed, when it is in GoerTek's power to do so,
any such instrument or papers shall continue after the termination of this
Agreement.
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18.4
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License. GoerTek
agrees that if in the course of performing this Agreement, GoerTek
incorporates into any Invention developed hereunder any invention,
improvement, development, concept, discovery or other proprietary
information owned by GoerTek or in which GoerTek has an interest, GoerTek
hereby grants, assigns and conveys to Plantronics a non-transferable,
perpetual, irrevocable, nonexclusive, world-wide, right and license,
without obligation to account, to use such information for its and its
affiliates' business purposes. Any royalties in connection with
the use of such intellectual property shall be reasonably negotiated
between Plantronics and GoerTek in good
faith.
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18.5
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Power
of Attorney. GoerTek agrees that
if Plantronics is unable because of GoerTek's unavailability, dissolution,
or for any other reason, to secure GoerTek's signature to apply for or to
pursue any application for any United States or foreign patents or
copyright registrations covering the Inventions assigned to Plantronics
above, then GoerTek hereby irrevocably designates and appoints Plantronics
and its duly authorized officers and agents as GoerTek's agent and
attorney in fact, to act for and on GoerTek's behalf to execute and file
any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyright registrations
thereon with the same legal force and effect as if executed by
GoerTek.
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19. SALE
AND DESIGN OF SIMILAR PRODUCTS
During
the Term of this Agreement and for a period of 10 years after its termination,
GoerTek will not, without the express written consent of Plantronics,
manufacture or sell to any third party or for its own account,
any product using the same or substantially similar industrial design
used in any Product.
20. MUTUAL
DEVELOPMENT COMMITMENTS; EXCLUSIVITY
20.1 GoerTek commitments to Plantronics.
(a) Development
Plan. At such time as GoerTek and Plantronics agree that
GoerTek shall develop future Plantronics Products, the Parties shall prepare and
agree upon an engineering development plan (the “Development
Plan”). The Development Plan shall identify the
Plantronics Engineering Team (as defined below) and other resources to be
applied by GoerTek towards the development of the Products. The
Development Plan may identify product roadmaps, deliverables (“Deliverables”)
to be delivered by GoerTek and any applicable milestone dates (“Milestones”)
and other goals which the parties intend to achieve. Each Party shall
provide such information and assistance to the other Party as the other Party
may reasonably request to accomplish the objectives of the Development
Plan. Qualified technical personnel from each Party will
be available to the other Party during normal business hours and at such other
times as may be appropriate to achieve the objectives of the Development
Plan.
(b) Executive Sponsors. Within
seven (7) days after the date that GoerTek and Plantronics elect to develop
future Plantronics Products, GoerTek shall, in consultation with
Plantronics, designate an engineering team dedicated solely to the development
and support of such Products. The engineering team shall contain a program
manager, an electrical engineer, and other engineers that may be necessary to
accomplish the Development Plan. The team may also include commodity managers
who will be responsible for coordinating manufacturing capacity and delivery
issues. Each Party will appoint one (1) person at a senior management
level as the executive sponsor responsible for overall technical cooperation and
implementation of the Development Plan with the other Party (each an "Executive
Sponsor") and will provide the contact information for that Executive
Sponsor to the other Party. Each Party may at any time replace its
Executive Sponsor (provided the replacement is a person with senior management
level responsibility) by providing written notice of such replacement to the
other Party. Unless agreed otherwise between the Executive Sponsors, they will
meet at least monthly (whether in person or via video or telephonic conference)
to discuss the Development Plan and to resolve any issues that may arise between
the Parties. In addition, the Executive Sponsors shall meet on a quarterly basis
to discuss at a high level the product roadmaps of both companies as well as
other matters that may be relevant to their mutual interests. The
parties further agree that their respective program managers will be responsible
for managing the development process on a day to day basis.
(c) Priority. In the event of a
conflict with regard to the allocation of GoerTek’s
engineers, manufacturing capacity and other resources between
Plantronics and GoerTek’s other customers, GoerTek will assign priority with
regard to the use of such resources to first support the research,
development and manufacture of Plantronics Products.
(d) CVMI. GoerTek will
participate in the Plantronics CVMI inventory management system, and will
provide Plantronics upon its request with information sufficient to review its
▇▇▇▇ of materials with regard to any of the Products.
(e) Security. GoerTek
agrees that it shall keep all Plantronics Products in an area that is
secured from access by any unauthorized third parties and shall take all
reasonably necessary steps to ensure that such persons will not have access to
the Plantronics Products. GoerTek agrees that it shall
establish a separate business unit that is solely responsible for manufacturing
Plantronics products under this Agreement and that members of that unit will not
share (i) any Plantronics intellectual property with any other employees of
GoerTek except on a strict need to know basis; and (ii) any Plantronics
intellectual property with any GoerTek employee who is working on any project
for any competitor of Plantronics including, without limitation, GN
Netcom/Jabra, Aliph/Jawbone or Motorola. GoerTek further agrees
that it shall keep all Plantronics intellectual property secured and locked
within its premises and access to such intellectual property shall be
limited only to those authorized employees who have a specific need to access
such intellectual property. GoerTek further agrees that it shall not
expose any Plantronics Product designs developed either by Plantronics or by
GoerTek on behalf of Plantronics pursuant to this Agreement to any third party,
without Plantronics written approval.
(f) Termination of Manufacturing.
GoerTek hereby agrees to use its best efforts to terminate the manufacture and
distribution of all Bluetooth headsets that carry the GoerTek brand
within six months after the Effective Date. GoerTek hereby agrees that all
direct and indirect distribution of such headsets shall terminate on or before
June 30, 2009.
(g) Manufacturing and Distribution
Restrictions. GoerTek agrees that it shall not
manufacture, market, distribute, sell or resell any headsets that use Bluetooth
technology and that are integrated into or access cell
phones, personal computers or any other device to any of the
companies set forth on Appendix D hereof. GoerTek further
agrees that the foregoing shall prohibit the indirect distribution of such
products to such entities through any distributor, reseller, broker
or similar entity. GoerTek shall immediately terminate the
manufacturing of any products for GN Netcom/Jabra, Aliph/Jawbone or
Motorola.
(h) Best ODM Services. GoerTek
shall use its best efforts to provide Plantronics with ODM services that are
more advantageous to Plantronics than equivalent services that it provides to
any other customer. This includes, among other things, the following: (i) first
priority in terms of the allocation of manufacturing capacity and research and
development funding for the Transferred Products; (ii) cost competitiveness;
(iii) time to market; (iv) product quality; (v) industry standards; (vi) product
support, if applicable; and (vii) the grant of a right of first refusal with
respect to any Bluetooth or corded headset product
innovations.
20.2 Plantronics
Commitments to GoerTek:
(a) Exclusive Manufacturing
Rights. Plantronics shall grant GoerTek the exclusive right for a twelve
(12) month period commencing upon the date of public announcement by
Plantronics, to manufacture the Transferred Products. For purposes of
clarification, such exclusivity shall extend to the life of any Product to which
GoerTek acquired exclusive rights within such twelve (12) month
period. After the expiration of such exclusivity period, GoerTek
shall become a primary supplier of Plantronics.
(b) Termination of Exclusive
Manufacturing Rights. The grant of exclusive manufacturing rights may be
terminated by Plantronics if GoerTek: (i) cannot meet Plantronics demand for
manufactured products; (ii) fails to meet Plantronics quality requirements;
(iii) fails to meet Plantronics product delivery deadlines; (iv) fails to
develop and manufacture products with competitive, “state of the art”
technology, or (v) materially breaches this Agreement, including any pricing
provisions contained herein. The parties may define Subsections (i),
(ii), (iii) and (iv) by setting forth the relevant metrics in each Development
and Manufacturing Program with respect to each Product. Plantronics may also
define such metrics by providing GoerTeck with reasonable written
notice. Plantronics may not terminate GoerTek’s exclusive
manufacturing rights unless it shall have given GoerTek notice of breach of the
foregoing and a reasonable opportunity to cure which shall not exceed thirty
(30) days.
(c) Plantronics Target.
Plantronics hereby agrees that it will target at least eight (8) million
Bluetooth units of Products per year to be manufactured by GoerTek
pursuant to this Agreement. GoerTek recognizes that Plantronics may not meet
such target as a result of economic conditions, weakening demand or other
factors beyond Plantronics control. GoerTek agrees that this level is
not a hard commitment to purchase such level of Products and, in the event that
Plantronics does not place orders with GoerTek in such an amount, it will have
not liability under this Agreement.
(d) Restrictions on Suppliers.
Plantronics hereby agrees that it will not use Foxlink/Foxconn as a supplier of
Bluetooth headsets and corded headsets unless GoerTek is unable to satisfy the
requirements of any RFP as described above or unless Foxlink/Foxconn has
technology that is unavailable to GoerTek. In the event that Plantronics
terminates GoerTek’s exclusive manufacturing rights as set forth in Subsection
(b) above or if such rights terminate under Subsection (a) above, it shall have
the right to terminate the limitation set forth in this Section.
20.3.
Non-Solicitation. With the exception of GoerTek’s right to hire employees
under Article 23 hereof, both Parties hereby agrees that, during the Term and
for a one year period after the expiration or termination of the Term, they will
not hire or attempt to hire, on behalf any employee of the other; provided,
however, that the hiring of an employee in response to a general solicitation
shall not be deemed a breach of this section. In the event that a Party breaches
this covenant, it shall pay as liquidated damages to the other Party the sum
equal to the 12 months’ base compensation of the newly hired
employee.
21. INDEMNITY
AND INSURANCE
21.1 Indemnity. GoerTek agrees to
indemnify and defend Plantronics from all claims, proceedings, liabilities and
costs (including legal expenses) resulting from:
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(a)
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any
claim that the Products or the use or resale of the Products infringes the
intellectual property rights of any other person except to the extent that
a claim arises from intellectual property furnished by
Plantronics;
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(b) relating
to claimed product liability;
(c) any
breach of warranty; and
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(d) any
claims, liabilities, proceedings, costs, taxes and expenses relating to
the transfer of the Production Equipment, the sale and transfer of the
Transferred Products, the hiring of the Plantronics associates under
Article 23 hereof, any violation of or non-compliance with Local Law by
GoerTek and the manufacturing of the Products under this
Agreement.
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21.2 Notice. Plantronics
will notify GoerTek of any claim made against Plantronics and authorizes GoerTek
to settle or defend any such claim, demand, proceeding or action and, upon
GoerTek's request shall assist GoerTek in so doing. Plantronics may
participate in any such claim at its own expense with counsel of its choosing at
any such proceeding.
21.3 Remedies. If Plantronics is
prevented from selling any Product , as a result of any claim or proceeding,
GoerTek must, at the option and direction of Plantronics:
(a) procure
for Plantronics the right to use or sell the Product; or
(b) modify
the Product so that it becomes non-infringing;
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(c)
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provide
to Plantronics a non-infringing Product meeting the same functional
specifications.
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21.4 Remedies
Unavailable. If the remedies described in Section 21.3 are unavailable,
Plantronics may return all Products purchased from GoerTek. GoerTek will
reimburse to Plantronics within thirty (30) days from the date of receipt of the
returned products, Plantronics’ purchase price for such products.
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22.
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CONFIDENTIAL
INFORMATION AND OWNERSHIP OF INTELLECTUAL
PROPERTY
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22.1 Rights of the Parties in Pre-Existing
Intellectual Property.
Each party owns all rights in its pre-existing technologies and
intellectual property developed by it or by third parties for its
benefit.
22.2 Confidentiality Agreement. The Parties have
executed a Confidentiality Agreement attach to this Agreement as Appendix
A. The Confidentiality Agreement governs the treatment of the
confidential information of the parties.
22.3 Protection of the Rights of Third
Parties in Proprietary Information. Both parties
warrant that all information used or disclosed by each to the other in the
course of performance under this Agreement is free of any rights or claim of
rights of third parties. Neither party will improperly use or disclose any
proprietary information or trade secrets of any other person or entity except as
permitted by such third party.
22.4 Plantronics Sole Ownership of
Industrial Design.
Plantronics is the sole and exclusive owner of all intellectual property
rights in the industrial design of the Products. Plantronics grants to GoerTek a
limited non-exclusive license to use the intellectual property in the industrial
design of the Products solely for the purpose of manufacture of the Products in
accordance with this Agreement. During the term of this Agreement and
for a period of 10 years after termination of the Agreement, GoerTek will not
use of any design element incorporated in the Products other than to manufacture
the Products for Plantronics. GoerTek must obtain Plantronics’ prior
written approval for all other uses of any design element of the
Product.
22.5 Injunctive Relief. If a party
suffers irreparable harm by reason of a breach by the other of this Section 22, then the
affected party may seek injunctive or other relief in a court of competent
jurisdiction, despite the arbitration requirement in Section 24.3.
22.6 No Disclosure of
Agreement. Neither party may
disclose the existence or terms of this Agreement without the prior written
consent of the other party.
22.7
Conflicts of
Interest. GoerTek certifies that GoerTek has no outstanding
agreement or obligation that is in conflict with any of the provisions of this
Agreement, or that would preclude GoerTek from complying with the provisions
hereof. GoerTek further certifies that during a specific program term
under this Agreement, GoerTek will not allow GoerTek’s development team members
that are currently engaged on a program for Plantronics to work on any of
GoerTek’s programs for a competitor of Plantronics. "Competitors" of Plantronics
shall mean those businesses that are engaged in (or to GoerTek's knowledge,
after due inquiry, preparing to engage in) the design, manufacture, marketing,
sale or distribution of communication headsets, assemblies, subassemblies,
components, and the repair or refurbishment of same, including, but not limited
to, any of the companies listed in Appendix D attached hereto.
23. EMPLOYMENT
OF PLANTRONICS ASSOCIATES
GoerTek
shall have the right to extend offers of employment to
any associate at Plantronics PCH or the China
Design Center located within Plantronics PCH that it may reasonably need to
fulfill the intent of this Agreement; provided, however, that Plantronics shall
have the superseding right to retain any associate that it
deems necessary. If GoerTek desires to hire an associate and Plantronics does
not exercise its right to retain such associate, Plantronics shall use
commercially reasonable efforts to encourage and assist such associate to accept
GoerTek’s employment offer.
24. DISPUTE
RESOLUTION
24.1 Negotiation. The parties will
attempt to resolve all disputes arising out of or in connection with this
Agreement by negotiation in good faith. The parties will elevate an
unresolved dispute to their senior management resorting to the other dispute
resolution procedures set out in Section 3.2 or this Section 24.
24.2 Mediation. If the parties
cannot resolve a dispute within a reasonable time, then either party can
initiate non-binding mediation through the American Arbitration Association, San
Francisco, California, under its Commercial Arbitration Rules. The
parties may also mutually agree on an alternative mediation
resource. The mediation will be held in Santa Cruz, California, or
any other location mutually agreed in writing by the parties. The
parties will equally share the mediation costs, except that each party will be
responsible for its own legal fees.
24.3 Arbitration. If the parties
cannot resolve the dispute by mediation within 30 days from the date of
submission, or within a mutually acceptable period, then either party may refer
the dispute to a single arbitrator through the American Arbitration Association,
San Francisco, California, under to its Commercial Arbitration Rules. The
parties may also mutually agree on an alternative arbitration resource and
applicable rules for arbitration. The arbitration will be held in
Santa Cruz, California, any other location mutually agreed in writing by the
parties. The decision of the arbitrator is binding on the
parties. Either party may seek enforcement of the arbitrator's
decision in any court of competent jurisdiction. The parties will be responsible
for its own legal fees, but will equally share the costs incurred in
arbitration, unless the arbitrator awards the costs or attorneys fees, or both,
to the prevailing party as a part of the arbitration decision.
24.4 Performance Continues During Dispute
Resolution. The parties must
perform their obligations under this Agreement while the dispute is being
resolved.
24.5 Judicial Forum. If Section 24.3 requiring
arbitration is considered invalid and a court has valid jurisdiction over the
parties, then the parties agree that the state and federal courts of Santa ▇▇▇▇▇
County, California will have nonexclusive jurisdiction to determine all disputes
and claims arising from, or in connection with, this
Agreement. GoerTek consents to the enforcement of a judgment rendered
in the United States in any action between GoerTek and Plantronics.
24.6 Award of Attorneys Fees. If a dispute between the
parties arises out of or relates to this Agreement, or the Confidentiality
Agreement, the prevailing may recover its attorney's fees, expenses and costs
incurred, in addition to any other remedy provided by the Confidentiality
Agreement, this Agreement or by applicable law.
24.7 Language. All mediation,
arbitration and other related proceedings must be conducted in the English
language.
25. GENERAL
PROVISIONS
25.1 Agreement
Confidential. The parties will keep the terms and conditions
of this Agreement (except the existence of this Agreement) confidential and will
not divulge any part of this Agreement to any third party except:
(a) With
the prior written consent of the other party; or
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(b)
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To
any governmental body having jurisdiction to request and to read this
Agreement; or
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(c) As
otherwise may be required by law or legal process; or
(d) To
legal counsel representing either party; or
(e) As
required for review by the competent governmental authorities.
25.2 Governing Law. This
Agreement is governed by the laws of California, without regard to the conflicts
of laws principles. The parties consent to the personal jurisdiction
of, and agree that any legal proceeding with respect to or arising under this
Term Sheet will be brought in, federal courts sitting in ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America.
25.3 Assignment. This
Agreement is binding on the parties and their successors and
assigns.
25.4 Severability. If a
provision in this Agreement is held to be invalid or unenforceable, then the
parties will exclude the invalid or unenforceable provision from this Agreement
and the remaining provisions will remain in full effect between the
parties.
25.5 Notices. The
parties will provide all notices in writing. Each notice must
be:
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(a)
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personally
delivered or be sent by registered or certified mail, overnight courier,
or telecopy confirmed by registered or certified mail;
and
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(b)
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addressed
to the other party at its address listed below (or any other address as
may be specified by the other party in writing in accordance with this
Section 25.5):
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If to
GoerTek :
GoerTek,
Inc.
Attention:
Long Jiang
Telephone:
▇▇▇ (▇▇▇)▇▇▇▇▇▇▇▇
Facsimile:
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to
Plantronics:
PLANTRONICS,
BV.
c/o PLANTRONICS, INC.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attention:
General Counsel
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copy
to:
PLANTRONICS, INC.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attention: General
Counsel
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
25.6 Relationship between
Parties. The parties are independent
contractors. Neither party should be considered to be an agent,
employee, joint venture, partner, or fiduciary of the other
party. Neither party has the right to bind the other party, transact
any business in the other party's name or on its behalf or incur any liability
for or on behalf of the other party.
25.7 Waiver. A party
does not waive any of its rights under this Agreement unless the waiver is in
writing and signed by the waiving party.
25.8 Counterparts. This
Agreement may be executed in 2 or more counterparts or duplicate originals, all
of which is regarded as the same instrument.
25.9 Descriptive
Headings. The descriptive headings and sections of this
Agreement are inserted for convenience only and should not control or affect the
meaning or construction of any of the provisions.
25.10 Interpretation. This Agreement
is the product of negotiations between the parties, and should be construed as
if jointly prepared and drafted by them. No provision of this
Agreement should be construed for or against any party due to its actual role in
the preparation or drafting under any doctrine. Each Party has
entered into this Agreement in reliance only upon its own
judgment. In the event that the parties to this Agreement shall
disagree as to the interpretation, the English language shall prevail and shall
control. The parties shall bear their respective costs with respect to the
negotiation and execution of this Agreement. If for any reason a
court of competent jurisdiction finds any provision of this Agreement, or
portion thereof, to be unenforceable (either due to a conflict with Local Law
(as defined below) or on any other basis, that provision of the Agreement will
be enforced to the maximum extent permissible so as to affect the intent of the
Parties, and the remainder of this Agreement will continue in full force and
effect.
25.11
Precedence. The term and conditions of this Agreement replace in their
entirety all pre-printed terms and conditions relating to the purchase of
Products under this Agreement. If there is a conflict between this
Agreement and its Appendixes and Exhibits, and the terms of any document
relating to the purchase of Products under this Agreement, the order of
precedence is as follows: (a) the Appendixes and Exhibits to this Agreement; (b)
the terms of this Agreement; (c) any written instructions on a purchase order;
and (c) the preprinted terms and conditions of any purchase order.
25.12.
Local Law. GoerTek shall use its best efforts to obtain any consents,
approvals, permits or other actions that may be required by any Chinese
governmental agency or regulatory body under any Chinese law (collectively, the
“Local Law”) to (i) negotiate and close the Manufacturing Agreement; (ii)
transfer the Production Equipment to GoerTek; and (iii) hire any Plantronics
engineers or other associates. Plantronics shall use best efforts to assist
GoerTek in obtaining consent to such Local Law.
25.13.
Publicity. The parties may elect to publish a mutually acceptable
joint press release relating to the transaction contemplated by this Agreement.
No unilateral press release or other public announcement or disclosure may be
made at any time by either party, unless both parties shall have agreed as to
the timing, form and content of such release.
25.14 Entire
Agreement. This Agreement together with the Appendixes and
Exhibits, which is incorporated by reference, embodies the final, complete and
exclusive statement of the terms of the agreement relating to the license of the
Licensed Patent by GoerTek to Plantronics. This Agreement supersedes any prior
or contemporaneous representations or agreements on this subject
matter. No amendment or modification of this Agreement is valid or
binding upon the parties unless they are in writing and signed by both
parties. As of the Effective Date, the Term Sheet shall be terminated
in its entirety and shall have no further force and effect.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives.
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GOERTEK,
INC.
By:
/s/Long Jiang
Long
Jiang
Vice
Chairman
Deputy
General Manager
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PLANTRONICS
B.V.
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Managing
Director
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Managing
Director
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Plantronics
Communications Technology (Suzhou) Co. Ltd
(For
certain limited purposes as set forth herein)
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Managing
Director
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Managing
Director
CONFIDENTIAL
APPENDIX
A
CONFIDENTIALITY
AGREEMENT MUTUAL NON-DISCLOSURE AGREEMENT
A Mutual
Non-Disclosure Agreement between Plantronics and GoerTek was entered and made
effective as of Sept. 20, 2005.
CONFIDENTIAL
APPENDIX
B
MANAGEMENT
GROUP
PLANTRONICS:
▇▇▇
▇▇▇▇ Senior
Commodity
Manager ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ Senior
Director
Worldwide Materials 831-426-5858
▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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▇▇▇▇▇
▇▇▇▇▇ Senior
Vice President of
Operations ▇▇▇-▇▇▇-▇▇▇▇
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▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
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GOERTEK :
Long
Jiang Vice
Chairman and Deputy General Manager ▇▇▇
(▇▇▇) ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇
▇▇▇▇▇ Chairman
and General Manager ▇▇▇
(▇▇▇) ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
CONFIDENTIAL
APPENDIX
C
AFFILIATES OF GOERTEK,
INC.
Weifang
GoerTek Electronics Co., Ltd. (Weifang, China)
Shenzhen
GoerTek Technology Co., Ltd. (Shenzhen, China)
Beijing
GoerTek Electronics Co., Ltd. (Beijing, China)
GoerTek
Electronics Inc. (Korea)
GoerTek
Electronics Inc. (United States)
GoerTek
Technology Co., Ltd. (Hong Kong)
▇▇▇▇ ▇▇▇
GoerTek Technology Co., Ltd. (Shenzhen, China)
CONFIDENTIAL
APPENDIX
D
***
Certain information in this Appendix has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT E
TRANSFER
PLAN
To
be included pursuant to the provisions of the Agreement.
EXHIBIT
F
PRICING FOR
TRANSFERRED PRODUCTS
The parties shall use
their best efforts to negotiate the pricing for the
Transferred Products within thirty days after the Effective
Date.
EXHIBIT
G
QUALITY
REQUIREMENTS
 Quality
Strategy for NPD ODM Outsourcing
Doc.
Number: TBD
Revision:
proposed Rev 1
Release
Date: not released yet
Authorization:
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1.1.1.1. Prepared
By:
1.1.1.2. Plantronics
Quality
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1.1.1.3. Approved
by:
VP,
Worldwide Quality
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1.1.1.4. Update
By:
1.1.1.5.
1.1.1.6.
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1.1.1.7. Approved
by:
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1.2.
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1.3.
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REVISION
HISTORY
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SUMMARY
OF CHANGE
|
UPDATE
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Owner
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New
Document
|
Quality
Assurance
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1.0
|
PURPOSE
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Establish
a strategy for managing quality requirements for ODM NPD programs to establish
clear roles and responsibilities, and ownership of requirements.
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2.0
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RESPONSIBILITY
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PLT
QUALITY AND ODM ARE RESPONSIBLE FOR THE IMPLEMENTATION OF THIS
DOCUMENT.
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3.0
|
DEFINITIONS
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·
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VTM
= 产品验证测试矩阵 (Verification Test
Matrix)
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·
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PRD
= 产品需求书 (Product Requirements
Document)
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·
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EB
= 工程试产 (Engineer Build)
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·
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VB
=验证性试产 (Verification Build)
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·
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AB
= 采纳性试产 (Acceptance Build)
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·
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PAE
= 产品保证工程师 (Product Assurance
Engineer)
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·
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SQE
= 供应商管理工程师 (Supplier Quality
Engineer)
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·
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PRCS
= 产品发货通行 (Product Release Customer
Ship)
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·
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PLT
= 缤特力通讯科技有限公司 (Plantronics, Inc.)
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·
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SQA
= 软件保证工程师 (Software Quality Assurance
Engineer)
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4.0
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QUALITY
STRATEGY (English Version)
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***
Certain information in this section has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted
portions.
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