EXHIBIT 10.49
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
PROFESSIONAL SERVICES AGREEMENT
(FOR USE WITH MANUFACTURING SERVICES ONLY)
This Professional Services Agreement (this "Agreement") is hereby entered into
on this 2nd day of December 2003 by and between ▇▇▇▇▇▇ Corporation, of ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, (hereinafter "Customer") and
Plexus Services Corp., of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (including
its subsidiaries and affiliates, "Plexus").
WHEREAS, Plexus is in the business of providing manufacturing services that
include the custom manufacture of printed electronic circuit boards, systems and
related services;
WHEREAS, the parties desire to establish the terms and conditions that will
apply to Customer's purchase from Plexus of certain printed electronic circuit
boards and/or systems and related services (hereinafter "Products");
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth,
the receipt and adequacy of which are hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows:
1. PURCHASE ORDERS; FORECASTS; MATERIALS. Customer will issue purchase orders
("P0") to Plexus in advance of Customer's requested delivery date. This time
period will be at least four (4) weeks in advance of Customer's requested
delivery date. Customer will also send Plexus a weekly forecast covering the
next twenty-six (26) weeks of expected demand. The first four (4) weeks of this
forecast will become frozen and the forecasted quantities listed in the weekly
forecast are not subject to cancellation or rescheduling by Customer, On a
monthly basis, Customer will supply Plexus with a twelve (12) month rolling
forecast which will be used for planning purposes and procuring long lead-time
components. The form and content of purchase orders and forecasts will be
mutually determined. The sale of Product contemplated herein will be made by
Plexus under the terms of this Agreement unless otherwise specifically agreed by
both parties in writing by amendment hereto. On a monthly basis, Plexus will
provide Customer a purchase order for material Plexus purchases from Customer
with scheduled deliveries at Plexus six (6) months after the issuance of the
purchase order or as otherwise agreed to in writing by both Customer and Plexus.
This Plexus purchase order shall be issued in accordance with either Customer's
forecast or P0 demand for Product and all such purchase orders shall be
cancelable, or material purchased by Plexus from Customer returnable, free of
charge, if Customer changes its forecast or P0 demand to Plexus. All payments
made by Plexus for material purchased from Customer will be at payment terms of
..5% 10, net 45 from the material ship date to Plexus.
Customer understands that Plexus will rely on Customer purchase orders and
forecasts to order and purchase materials necessary to fulfill the orders and
forecasts. Orders with suppliers may be non-cancelable and materials received by
Plexus non-returnable to suppliers. Accordingly, once Plexus has ordered or
purchased materials in support of Customer's purchase orders or forecasts,
Customer will be liable for such materials in the event the same are not
consumed as and when contemplated by the orders or forecasts on which Plexus
relied to order or purchase such materials. Customer acknowledges that this
liability will include (i) any unconsumed minimum or economic order quantities
of materials required to be purchased or ordered by suppliers, which may exceed
Customer's actual forecast or order demand; and (ii) materials ordered or
purchased by Plexus to support Customer's requested increase of, or flexibility
to increase, the quantity of Products ordered or forecasted. Plexus and Customer
will review these liabilities on a monthly basis.
Plexus will support the capability to increase the forecast by twenty-five
percent (25%) for Products forecasted to be delivered more than four (4) weeks
from Customer's requested increase by purchasing the additional Components from
the supplier. Within the fifth to eighth week period prior to the forecasted
deliveries, Customer may decrease the forecasted shipments fifty percent (50%).
Beyond week eight (8) there are no stated constraints on upside or downside.
Customer's liability for Obsolete Components or Excess Components procured to
meet the upside and downside flexibility requirement listed above is outlined
below.
The following is a description of the way Excess Components will be managed
between Plexus Services Corp and Customer:
Customer will place a deposit of $[**] with Plexus for Excess Components on or
by September 30, 2003. For this consideration, Plexus will maintain in its own
inventory up to $[**] of Excess Components through the period ended March 31,
2004. If the value of Excess Components exceeds $[**] during this period,
Plexus will require, and Customer will promptly pay, additional deposit coverage
such that its exposure will not exceed $[**]. Risk of loss and ownership of
Excess Components shall remain with Plexus.
From April 1, 2004 forward, the required deposit from Customer will be
calculated as Excess Components less 5% average monthly sales volume. The
average monthly sales volume will be calculated based on the prior three months'
rolling average. Should the required deposit exceed $[**], Customer shall
submit to Plexus an increased deposit for the additional Excess Components held
at Plexus.
Any Excess Components held by Plexus with or without a Customer deposit for nine
(9) months shall be invoiced at the quoted cost plus markup as outlined in the
quotation.
Customer will be notified and will pre-approve any purchases of material that
will generate greater than $500 per component line item of potential Excess
Components per the forecast in place at the time of transaction.
Plexus will provide Customer with a list of Components with Minimum Order
Quantity ("MOQ") requirements each quarter. Customer will pre-approve such list
in writing and Plexus shall be authorized to procure such Components to support
Customer's Forecasts, Purchase Orders, upside flexibility requirements plus any
MOQ Components. Plexus agrees that at the end of each month it will notify
Customer of (i) the quantity and value of:
(a) materials it has on-hand and ordered; and (ii) any known liability of
Customer pursuant to the descriptions above in Section 1. To the extent Plexus
knows of Obsolete Component or Excess Component liability of Customer hereunder
and does not so notify Customer within sixty (60) business days, Customer shall
not be responsible for such liability. Customer agrees to review the Customer
liabilities relating to Obsolete Components and issue a separate purchase Order
and payment and written disposition for all items within ten (10) business days
of receipt of notification by Plexus. Obsolete Components shall mean those
components in inventory or on-order, within liabilities listed in Section 1
Material, that do not appear on a Customer ▇▇▇▇ of materials, or which appear on
a Customer ▇▇▇▇ of materials of an assembly that has no demand. Excess
Components shall mean those components in inventory or on-order that are
projected to be consumed by Customer demand, but not within the next ninety (90)
calendar days or Components at Plexus that have aged for more than ninety (90)
calendar days.
In all cases, however, before Customer will be required by Plexus to purchase
any such materials, Plexus agrees to use reasonable efforts to minimize
Customer's liability by returning the these materials to suppliers, canceling
orders with suppliers, or using these materials to manufacture product for other
Plexus customers whose demand reflects a current need for such materials.
The remittance of a deposit by Customer under this Agreement will represent a
security to Plexus for Customer's Component liability under this Agreement.
Plexus and Customer will review any amounts on deposit with Plexus from time to
time at either party's discretion and make adjustments to the same to reflect
the-then current component value of Excess Components on-hand and on-order at
Plexus. Plexus may hold any such deposits made by Customer under this Agreement
in any manner at its discretion. Title and risk of loss for Components against
which a deposit has been made shall remain with Plexus. Plexus will also retain
responsibility to insure and warehouse such components according to Plexus'
then-current practices. In addition, in the event this Agreement or the
manufacturing relationship between Customer and Plexus has terminated, any
deposits from Customer then held by Plexus will convert, at Plexus' option, into
a payment by Customer for any Components on-hand or on-order at Plexus and
relating to an assembly. Upon the conversion of any deposit into a payment by
Customer for Components, Plexus will ship such Components as soon as practicable
FOB Plexus' facility.
Upon the expiration or earlier termination of this Agreement, said deposit sum
shall be returned to Customer only after all financial liabilities owed to
Plexus by Customer have been fulfilled to the reasonable satisfaction of Plexus.
Component Cost Purchase Price Variance. Plexus agrees to notify Customer in
writing of Component purchases related to schedule changes that will create
adverse purchase price variance. Customer shall provide Plexus with
written approval of such adverse purchase price variance prior to Plexus
purchasing such Components. Customer shall then reimburse Plexus for purchase
price variance previously approved at the end of the quarter.
2. CUSTOMER FURNISHED MATERIAL
To be added by amendment.
3. SHIPMENT AND DELIVERY. All Products shipped by Plexus to Customer pursuant to
Customer purchase orders will be shipped FOB Plexus' facility. These terms will
require Plexus to provide to Customer a Delivery Notice at the time of shipment
so that Customer may "receive" the goods into a virtual location and create the
requisite liability. This will be important to the extent shipments in-transit
to Customer's cross-financial reporting periods.
If Plexus fails to make deliveries as specified by Customer and accepted by
Plexus on Customer's purchase order and such failure is caused solely by Plexus,
Plexus will, at no additional cost to Customer, employ accelerated measures such
as material expediting fees, premium transportation costs, or labor overtime
required to meet the specified delivery schedule or minimize the lateness of
deliveries.
Plexus agrees that it has an affirmative responsibility to notify Customer, in
writing, promptly if it becomes aware of any factor, event, or circumstance that
may affect its ability to procure materials or items, to accomplish
manufacturing activities, or to otherwise fail to effect deliveries in
accordance with the forecasts described in Section 1. Plexus will use its
reasonable best efforts to meet delivery dates and shall advise Customer
promptly if a delay is anticipated or encountered, stating the reasons for the
delay, and providing a projected delivery date. The issuance of such a notice
shall not excuse Plexus from any default or performance obligation, unless
Customer provides written consent.
4. PRICING AND PAYMENT. Pricing for Products will be reviewed and agreed to by
the parties at periodic and mutually determined pricing reviews conducted by the
parties. Unless otherwise expressly agreed to in writing, prices for the product
will not include, and Customer will be liable for, any sales, use, excise, value
added or similar taxes imposed on the sale of product to Customer. All payments
made by Customer will be made via electronic funds transfer and received by
Plexus in US Dollars within forty-five (45) days from the date of invoice. When
Customer pays the invoice amount within ten (10) days from the issue date of the
invoice, the Customer is entitled to receive a .5% discount from payment
obligations. Customer will be given an opportunity to supply tax exemption or
resale certificates where applicable. Customer shall make payment to (Bank One,
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Account # ▇▇▇▇▇▇▇ / ABA # ▇▇▇▇▇▇▇▇▇, To:
Plexus Corp. unless otherwise directed by Plexus.). However, Customer
acknowledges that Plexus may change such payment terms, and any other credit
terms, limits or vehicles granted by Plexus to Customer during the course of the
performance of this Agreement, will be subject to periodic review. Plexus shall
not make any adverse change in the Customer's payment terms unless warranted by
an adverse change in Customer's ability to pay or credit history. For the
purpose of this Section, Plexus will review the following criterion when
evaluating the status of the Customer's credit history: sales growth, net income
growth, positive cash flow, invoices paid consistently within terms, Customer's
demand and current economic conditions.
5. STANDARD OF PERFORMANCE. Plexus shall manufacture and distribute Products in
accordance with Customer's manufacturing specifications as accepted by Plexus
which shall not be unreasonably withheld and applicable laws and regulations,
and shall maintain in full force and effect all material operating licenses and
other permits necessary for the performance of Plexus' obligations hereunder.
Plexus shall use commercially reasonable efforts to maintain the productivity,
yields and quality of its production of Products and practice the "continuous
improvement" approach in accordance with good manufacturing practice. Plexus
agrees to notify Customer of any significant Composition, Facility,
Manufacturing process, or specification changes prior to implementation and to
obtain Customer's written confirmation that such change is acceptable before
implementing the change.
Commitment to quality is a primary requirement of this Agreement. Plexus agrees
to ensure continued quality improvement in the manufacturing processes of the
Product covered under in this Agreement. Plexus agrees to participate in, and
play a proactive role in all applicable Design for Manufacturability ("DFM")
reviews, Cost Reduction programs or initiatives, or Quality Assurance programs
or initiatives, at the request of Customer, with
the specific goal of improving manufacturability of design, reducing cost,
improving quality, or reducing lead-times.
Plexus must respond in writing within thirty (30) calendar days to any
complaints made in writing by Customer, and such response shall contain an
acknowledgment of receipt of the complaint and a plan for investigation for any
such complaint.
6. LIMITED WARRANTY. Plexus warrants that such Product will be free and clear of
all liens and encumbrances and that Plexus will convey good and marketable title
to such Product (provided that this Limited Warranty will not be construed as a
warranty of non-infringement). Except as set forth below, Plexus warrants that
the Products will be free from defects in workmanship performed by Plexus for a
period of one (1) year from the date of shipment where the Products do not
conform to the manufacturing specifications agreed to in writing by Plexus and
Customer. Plexus shall repair or replace, at Plexus' option and free of charge,
Products that are returned to Plexus securely packaged and insured within the
warranty period, and which bear a return material authorization ("RMA") number
issued by Plexus to Customer, and which upon examination Plexus determines in
its reasonable discretion to be covered by the warranty herein. Plexus' warranty
for replacement or repaired Products will be the same as the warranty stated
herein provided that the duration of such warranty shall be limited to the
duration of the warranty which remained on the original defective Products
returned to Plexus as of the date of Plexus's receipt of the same. Plexus will
respond to Customer promptly after receiving an RMA number request and any
non-conforming Product with the warranty herein shall be repaired or replaced
and returned to Customer or its designees within thirty (30) days from the date
of the Product receipt at Plexus. Plexus will return any defective Products
repaired or replaced under warranty herein pursuant to this paragraph to
Customer or its designees with freight pre-paid. The packaging and handling
expenses incidental thereto (including the applicable transportation costs) of
the Product repaired or replaced under Warranty will be borne exclusively by
Plexus. Non-warranty repairs, when requested by Customer, will be charged at the
then-current rate.
This warranty does not apply to:
a) Design deficiencies. Plexus expressly disclaims any warranty relating to
design deficiency.
b) Malfunctions, defects, or failures resulting from misuse; abuse; accident;
neglect; improper installation, operation or maintenance; theft;
vandalism; acts of God; power failures or surges; casualty; alteration,
modification, or repairs by any party other than Plexus; or any other
cause beyond Plexus' reasonable control.
c) Materials incorporated into the Products, provided that Plexus will
transfer to Customer any transferable materials warranties obtained by
Plexus from suppliers.
d) Products shipped by Plexus and not tested according to agreed upon test
procedures at the direction of Customer. Plexus agrees to provide Customer
with test documentation for Products by serial number upon written
request.
THE FOREGOING CONSTITUTES CUSTOMER'S SOLE REMEDIES AGAINST PLEXUS FOR BREACH OF
WARRANTY CLAIMS. EXCEPT AS PROVIDED IN THIS SECTION, PLEXUS MAKES NO WARRANTIES
WITH RESPECT TO THE PRODUCTS OR ITS SERVICES HEREUNDER, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES RESPECTING NONINFRINGEMENT, OR MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM A
COURSE OF PERFORMANCE, A COURSE OF DEALING, OR TRADE USAGE. PLEXUS MAKES NO
WARRANTY WITH RESPECT TO SOFTWARE. ALL SOFTWARE IS PROVIDED "AS IS."
7. MONITORING OF MANUFACTURING ACTIVITIES AND INSPECTION. Plexus shall grant
Customer and its employees, representatives or agents access to its production
facilities with advance notification, and shall allow them to observe, inspect
and, depending on the circumstances, monitor the production of Products. If
requested by Customer, Plexus shall also make a reasonable effort to have its
subcontractors also grant Customer access to their production facilities, and
allow Customer to also observe, inspect and monitor their manufacturing activity
to the extent relevant for the production of components.
Unless otherwise specified and agreed upon, the material to be furnished under
this order shall be subject to Plexus' standard inspection at the place of
manufacture. If it has been agreed upon and specified in an order that Customer
is to inspect or provide for inspection at the site of manufacture, such
inspection shall be in a timely manner and so conducted as to not interfere
unreasonably with Plexus operations, and consequent approval or rejection shall
be made before shipment of the material.
No items that deviate from the Purchase Order requirements shall be shipped to
Customer or its designee, unless such shipment is approved in advance in writing
by Customer.
Customer shall have the right to inspect Components at Plexus' manufacturing
facilities and Plexus shall reasonably cooperate with Customer in that regard.
If an inspection or test is made on Plexus' premises, Plexus shall provide
Customer's inspectors with reasonable facilities and assistance at no additional
charge. Customer must provide advance written notice of a desire to conduct an
inspection of at least two (2) business days prior to the beginning of such
inspection. Such inspection shall be conducted only during normal business hours
and in compliance with all Plexus' safety and security requirements.
8. TOOLING AND EQUIPMENT. All jigs, molds, fixtures, dies and patterns
(hereinafter referred to as "tooling") and all computers (hardware and
software), printers and other fixtures (hereinafter referred to as "equipment")
paid for by Customer shall become the property of Customer. Tooling or equipment
acquired or fabricated by Plexus and paid for by Customer pursuant to this
Agreement shall be marked "Property of ▇▇▇▇▇▇ Corporation" and with the tool and
equipment number assigned by Customer, and shall be consigned to Plexus. Plexus
shall maintain such tooling in good condition at all times, shall effect
necessary repairs to same, and shall modify such tooling and equipment as
directed by Customer, all at Customer's expense. Plexus shall be responsible for
any damage to the tooling and equipment that is not attributable to normal wear
and tear. Customer has the right at any time to remove any and all Customer
owned tooling and equipment pursuant to Section 11 of this Agreement. Customer
makes no warranties of any kind as to the suitability of tooling acquired or
fabricated by Plexus and paid for by Customer, as contemplated above, and Plexus
assumes full responsibility for any and all risks and liabilities for property
damage or personal damage or injury that may arise from Plexus' installation,
modification, operation and removal of the tooling.
Plexus will quote tooling and equipment costs and repairs separately, and will
not incur any such cost without Customer's prior written approval. Customer will
pay only those tooling and equipment costs actually incurred by Plexus, with
markup as outlined in the quotation, and Customer will have the option to
amortize its payments over a reasonable period of time, not to exceed twelve
(12) months from the date of delivery, or number of units to be agreed by the
parties. In the event that the amortization payments made by Customer to Plexus
have not paid off the balance due to Plexus at the end of twelve (12) months,
Customer agrees to remit payment to Plexus for the balance within thirty (30)
calendar days of Plexus' written notice to Customer. Plexus will substantiate
all such costs, which will not exceed the initial agreed estimate unless Plexus
has provided Customer with prior written notification of such change in cost and
Customer has approved such change.
9. SECURITY. Certain Plexus employees will be approved for access to Customer's
ERP and other systems to perform specific authorized transactions. Customer will
approve all access to Customer systems. A list of Plexus employees (names,
titles, reason for access) will be maintained by Plexus and supplied to
Customer. If any of the listed employees terminate employment with Plexus, or
change roles, Customer will be notified within five (5) business days in order
that their access to Customer systems will also be terminated.
Access to Customer's ERP system will not be provided to any persons other than
to designated Plexus employees. The access will be used by Plexus employees for
as long as such person is providing services directly to Customer or in support
of Plexus' business purposes with Customer under this Agreement. The system may
not be used for any purposes other than those described herein.
Since Customer products are software intensive, and in particular Windows OS
based, virus protection is of utmost concern. Customer customers depend on 100%
rigor in the security environment during oscilloscope production to prevent any
possibility of shipping products infected with a virus. Therefore Customer
requires that Plexus maintain
a physically controlled and procedurally secure work environment surrounding its
Customer production area, physically and functionally.
10. INDEMNITY. Customer agrees to defend at its expense, hold harmless and
indemnify Plexus, including its officers, directors, and employees, from and
against any judgments, liabilities, claims, demands, expenses, losses or costs
(including reasonable attorneys' fees) arising from Plexus' compliance with
Customer designs or specifications and any claim or action relating to the
functioning of the Products, or any product(s) of which they are a part, whether
such claims or actions be in the nature of public or product liability, contract
liability, intellectual property infringement, or otherwise during or following
the term of this Agreement; provided that Plexus: (i) gives Customer prompt
notice of any such claims; (ii) renders reasonable assistance at Customer's
expense; and (iii) permits Customer to direct the defense or the settlement of
such claims.
Plexus agrees to defend, at its expense, hold harmless and indemnify Customer,
including its officers, directors, and employees, from and against any and all
actions, claims, demands, liabilities, suits, losses, damages, costs, expenses
and judgments (including reasonable attorney's fee thereof) on account of
personal injury or tangible property damage by whomever made, to the extent
arising out of, related to, occasioned by or attributable to any breach by
Plexus of any provisions of this Agreement or any wrongful or negligent act or
omission by Plexus, its employees or agents in the performance thereof; provided
that Customer: (i) gives Plexus prompt notice of any such claims; (ii) renders
reasonable assistance at Plexus' expense; and (iii) permits Plexus to direct the
defense or the settlement of such claims.
11. TERM; TERMINATION. This Agreement shall remain in effect for a period of one
(1) year from the date first written above. Thereafter, this Agreement shall
automatically renew for successive one (1) year periods. However, either party
may terminate this Agreement at any time and for any reason upon one hundred
eighty (180) days prior written notice to the other party. In addition, either
party may terminate this Agreement in the event that the other party (i) fails
to cure a material default under this Agreement within thirty (30) days after
receiving written notice thereof; or (ii) becomes insolvent, files or has filed
against it a petition in bankruptcy, makes an assignment for the benefit of
creditors, or generally becomes unable to pay its debts as they become due.
Sections 1,2,4,6,8, 10, 11, 12, 15, 17, 19, and 20 of this Agreement shall
survive the termination of this Agreement.
12. LIMITATION OF LIABILITY. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT
LIABILITY, OR OTHERWISE, SHALL PLEXUS BE LIABLE TO CUSTOMER FOR ANY LOSS OF
PROFITS, LOSS OF USE, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY
DAMAGES OF ANY KIND, WHETHER OR NOT PLEXUS IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOTWITHSTANDING THE FAILURE, OR ESSENTIAL PURPOSE, OF ANY REMEDY.
13. FORCE MAJEURE. Plexus shall not be liable for any delay in or failure of
performance under this Agreement due to any contingency beyond Plexus'
reasonable control, including, but not limited to, an act of God, war, acts of
terrorism, insurrection, fire, riot, strikes or labor unrest, sabotage, an act
of public enemy, flood, storm, accident, component shortages, equipment failure,
laws or regulations ; provided that Plexus gives Customer written notice of such
cause within seven (7) calendar days of the discovery of the event and uses its
reasonable efforts to remedy such delay in its performance.
14. ASSIGNMENT. Neither Plexus nor Customer shall assign any of its rights or
delegate any of its responsibilities under this Agreement unless agreed to by
both parties in writing. Both parties must agree in writing before Products are
transferred to manufacturing facilities outside of Neenah, WI.
15. GOVERNING LAW, The parties hereby agree that this Agreement shall be
governed by and will be construed in accordance with the laws of the State of
New York, irrespective of the conflicts of law provisions thereof.
16. RELATIONSHIP. Neither party is designated or appointed an agent or
representative to the other party and no party will have any authority, either
express or implied, to create or assume any agency or obligation on behalf of or
in the name of the other party. The relationship of Plexus to Customer is that
of independent contractor, and neither party will have any responsibility for or
obligations to the employees of the other.
17. NO LICENSE. The manufacture of Products for Customer hereunder does not
convey to either party any license, express or implied, under any patent,
copyright or maskwork of the other party except as necessary for each party to
perform its obligations under this Agreement.
18. FURTHER ASSURANCES. Each party agrees that, upon the reasonable request of
the other party hereto, such party will adhere to processes and procedures in
furtherance of and consistent with the terms and conditions set forth in this
Agreement. Such processes and procedures will not be deemed a modification of
this Agreement, however, unless signed by duly authorized officers of both
parties. Plexus covenants that it shall not modify the Product nor create
derivative works based on the Product in any way without the express written
consent of Customer.
19. MISCELLANEOUS. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and permitted assigns. If any
provision of this Agreement is adjudged to be unenforceable in whole or in part,
such adjudication shall not affect the validity of the remainder of this
Agreement. The parties cooperated in the preparation and negotiation of this
Agreement and this Agreement will not be construed against or in favor of any
party by virtue of the identity, interest, or affiliation of its preparer.
Failure by either party to exercise any right granted in this Agreement shall
not be deemed a waiver of such right. A waiver of any right under this Agreement
must be in writing and signed by an authorized representative of the party
making such waiver. This Agreement is the entire understanding between Plexus
and Customer with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements, understandings, dealings and negotiations,
whether oral or written. No modification, alteration or amendment shall be
effective unless made in writing and signed by duly authorized officers of both
parties. All purchases by Customer during the term of this Agreement shall be
governed only by the terms and conditions of this Agreement, notwithstanding any
preprinted terms and conditions on any Plexus or Customer forms or documents.
On or prior to the date of this Agreement, Plexus shall, for purposes of United
States backup withholding tax and information reporting requirements, provide
Customer with an executed copy of Internal Revenue Service Form W-9 or any
successor form.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed to by an original, but all of which, when taken together, shall
constitute one and the same instrument.
20. CONFIDENTIAL INFORMATION. Plexus and Customer agree to execute, as part of
this Agreement, a Nondisclosure Agreement for the reciprocal protection of
confidential information. Each Party acknowledges that it may have heretofore
received and may from time to time hereafter receive Confidential Information of
the other Party, and such Party receiving such Confidential Information shall do
the following:(i) maintain such Confidential Information in confidence and shall
not disclose such information to any third party; (ii) not use such Confidential
Information other than in the performance of this Agreement; and (iii) disclose
such Confidential Information to its employees or to employees of its affiliates
only to the extent that such employees need to know such Confidential
Information to carry out the receiving Party's obligations under this Agreement.
All original documents, submitted by either party, which contain, without
limitation, specifications, drawings and procedures, intellectual property
rights and know-how remain exclusive property of the disclosing party. Each
party agrees to use such documents for the purpose of this Agreement only.
Further, nothing contained in this Agreement shall be construed to grant either
party any ownership, title to or interest in any trademark, trade name, service
▇▇▇▇ or logo, of the other party.
21. INSURANCE OF PLEXUS. Plexus shall procure reasonably adequate insurance for
product liability damages arising out of the sale or use of the Products. Plexus
shall maintain comprehensive general liability insurance and other insurance, on
an occurrence basis, for injury to or death of any person(s) or damage to
property of not less than $10,000,000 in aggregate.
22. ENGINEERING CHANGES. Customer may, upon advance written notice to Plexus,
submit engineering changes for incorporation into the Product. It is important
that this notification include documentation of the change to effectively
support an investigation of the impact of the engineering change. Plexus will
make a reasonable effort to review the engineering change and report to
Customer. If any such change affects the price, delivery, or quality
performance of said Product, an equitable adjustment will be negotiated between
Plexus and Customer prior to implementation of the change.
Plexus agrees not to undertake significant process changes, design changes, or
process step discontinuance affecting electrical performance and/or mechanical
form and fit without prior written notification and concurrence of the Customer.
In witness whereof, the parties have executed this Agreement as of the date
first above-written.
▇▇▇▇▇▇ CORPORATION PLEXUS SERVICES CORP.
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
TITLE: Vice President Title: Vice President
Date: 1/16/04 Date: 12/22/03