EXHIBIT 10.21
FLEXTRONICS
CONFIDENTIAL
Flextronics Manufacturing
Services Agreement
This Flextronics Manufacturing Services
Agreement ("Agreement") is entered into this 3 rd day of
November 2008 ("Effective Date") by and between ClearOne
Communications having its place of business at 5225 Wiley Post Way
suite 500 Salt Lake City Utah 84116 ("Customer") and Flextronics
Industrial, Ltd., having its place of business at Level 3,
Alexander House, 35 Cybercity, Ebene, Mauritius,
("Flextronics").
Customer desires to engage Flextronics to
perform manufacturing services as further set forth in this
Agreement. The parties agree as follows:
Flextronics and
Customer agree that capitalized terms shall have the meanings set
forth in this Agreement and Exhibit 1 attached hereto and
incorporated herein by reference.
2.
MANUFACTURING SERVICES
2.1.
Work . Customer hereby engages Flextronics to perform
the work (hereinafter " Work "). " Work " shall mean
to procure Materials and to manufacture, assemble, and test
products (hereinafter " Product(s) ") pursuant to detailed
written Specifications. Flextronics agrees not to move or transfer
manufacturing from one location to another location without
Customer's prior written consent, not to be unreasonably withheld.
All changes to manufacturing processes are required to be reviewed
and approved by Customer prior to implementation by Flextronics,
which will be obligated to provide Customer with a clear definition
of the proposed manufacturing process change. The "
Specifications " for each Product or revision thereof, shall
include but are not limited to bill of materials, designs,
schematics, assembly drawings, process documentation, test
specifications, current revision number, and Approved Vendor List.
The Specifications as provided by Customer and included in
Flextronics's production document management system and maintained
in accordance with the terms of this Agreement are incorporated
herein by reference as Exhibit 2.1. This Agreement does not include
any new product introduction (NPI) or product prototype services
related to the Products. In the event that Customer requires any
such services, the parties will enter into a separate agreement. In
case of any conflict between the Specifications and this Agreement,
this Agreement shall prevail.
2.2.
Engineering Changes . Customer may request
that Flextronics incorporate engineering changes into the Product
by providing Flextronics with a description of the proposed
engineering change sufficient to permit Flextronics to evaluate its
feasibility and cost. Flextronics agrees only to accept and shall
only be responsible for acting upon information or directions
pertaining to any level of change to form, fit or function of
product, product specification, inspection, material or product
disposition, or testing provided by Customer's authorized
employees. Customer's authorized employees shall be designated in
writing by Customer and provided to Flextronics in the ordinary
course of business. Flextronics will proceed with engineering
changes when the parties have agreed upon the changes to the
Specifications, delivery schedule and Product pricing and the
Customer has issued a purchase order for the implementation
costs.
2.3.
Tooling; Non-Recurring Expenses; Software . Customer
shall pay for or obtain and consign to Flextronics any
Product-specific tooling, equipment or software and other
reasonably necessary non-recurring expenses, to be set forth in
Flextronics's quotation. All software that Customer provides to
Flextronics or any test software that Customer engages Flextronics
to develop is and shall remain the property of Customer.
2.4.
Cost Reduction Projects . Flextronics agrees to seek
ways to reduce the cost of manufacturing Products by methods such
as elimination of Materials, redefinition of Specifications, and
re-design of assembly or test methods. Upon implementation of such
ways that have been initiated by Flextronics and approved by
Customer, Flextronics will receive 50% of the demonstrated cost
reduction for six months. Customer will receive 100% of the
demonstrated cost reduction upon implementation of such ways
initiated by Customer.
3.
FORECASTS; ORDERS; FEES; PAYMENT
3.1.
Forecast . Customer shall provide Flextronics, on a
monthly basis, a rolling twelve (12) month forecast indicating
Customer's monthly Product requirements. The first ninety (90) days
of the forecast will constitute Customer's written purchase order
for all Work to be completed within the first ninety (90) day
period. Such purchase orders will be issued in accordance with
Section 3.2 below.
3.2.
Purchase Orders; Precedence . Customer may use its
standard purchase order form for any notice provided for hereunder;
provided that all purchase orders must reference this Agreement and
the applicable Specifications. The parties agree that the terms and
conditions contained in this Agreement shall prevail over any terms
and conditions of any such purchase order, acknowledgment form or
other instrument.
3.3.
Purchase Order Acceptance . Purchase orders shall
normally be deemed accepted by Flextronics, provided however that
Flextronics may reject any purchase order: (a) that is an amended
order in accordance with Section 5.2 below because the purchase
order is outside of the Flexibility Table; (b) if the fees
reflected in the purchase order are inconsistent with the parties'
agreement with respect to the fees; (c) if the purchase order
represents a significant deviation from the forecast for the same
period, unless such deviation is within the parameters of the
Flexibility Table; or (d) if a purchase order would extend
Flextronics's liability beyond Customer's approved credit line.
Flextronics shall notify Customer of rejection of any purchase
order within five (5) business e1ays of receipt of such purchase
order.
3.4.
Fees; Changes; Taxes .
(a) The fees will be agreed by the
parties and will be indicated on the purchase orders issued by
Customer and accepted by Flextronics. The initial fees shall be as
set forth on the Fee List attached hereto and incorporated herein
as Exhibit 3.4 (the " Fee List "). If a Fee List is not
attached or completed, then the initial fees shall be as set forth
in a quote and purchase orders issued by Customer and accepted by
Flextronics in accordance with the terms of this
Agreement.
(b) Customer is responsible for
additional fees and costs due to: (a) changes to the
Specifications; (b) failure of Customer or its subcontractor to
timely provide sufficient quantities or a reasonable quality level
of Customer Controlled Materials where applicable to sustain the
production schedule; and (c) any pre-approved expediting charges
reasonably necessary because of a change in Customer's
requirements.
(c) The fees may be reviewed
periodically by the parties. Any changes and timing of changes
shall be agreed by the parties, such agreement not to be
unreasonably withheld or delayed. By way of example only, the fees
may be increased if the market price of fuels, Materials,
equipment, labor and other production costs, increase beyond normal
variations in pricing or currency exchange rates as demonstrated by
Flextronics.
(d) All fees are exclusive of
federal, state and local excise, sales, use, VAT, and similar
transfer taxes, and any duties, and Customer shall be responsible
for all such items. This subsection (d) does not apply to taxes on
Flextronics's net income.
(e) The Fees List will be based on
the exchange rate(s) for converting the purchase price for
Inventory denominated in the Parts Purchase Currency(ies) into the
Functional Currency. The fees will be adjusted, on a monthly basis
based on changes in the Exchange Rate(s) as reported on the last
business day of each month, for the following month to the extent
that such Exchange Rates change more than +/- .75% from the prior
month (the "Currency Window"). "Exchange Rate(s)" is defined as the
closing currency exchange rate(s) as reported on Reuters' page FIX
on the last business day of the current month prior to the
following month. "Functional Currency" means the currency in which
all payments are to be made pursuant to Section 3.5 below. "Parts
Purchase Currency(ies)" means U.S. Dollars, Japanese Yen and/or
Euros to the extent such currencies are different from the
Functional Currency and are used to purchase Inventory needed for
the performance of the Work forecasted to be completed during the
applicable month.
3.5.
Payment. Customer agrees to pay all invoices in U.S.
Dollars within thirty (30) days of the date of the
invoice.
3.6.
Late Payment. Customer agrees to pay one and one-half
percent (1.5%) monthly interest on all late payments. Furthermore,
if Customer is late with payments, or Flextronics has reasonable
cause to believe Customer may not be able to pay, Flextronics may
(a) stop all Work under this Agreement until assurances of payment
satisfactory to Flextronics are received or payment is received;
(b) demand prepayment for purchase orders; (c) delay shipments; and
(d) to the extent that Flextronics's personnel cannot be reassigned
to other billable work during such stoppage and/or in the event
restart cost are incurred, invoice Customer for additional fees
before the Work can resume. Customer agrees to provide all
necessary financial information required by Flextronics from time
to time in order to make a proper assessment of the
creditworthiness of Customer.
3.7.
Letter of Credit or Escrow Account. Upon
Flextronics's request at any time during the term of this
Agreement, Customer agrees to obtain and maintain a stand-by letter
of credit or escrow account on behalf of Flextronics to minimize
the financial risk to Flextronics for its performance of the Work
under this Agreement. The stand-by letter of credit or escrow
account shall be for a minimum period of time of six (6) months and
shall be for a total amount that is equal to the total value of the
risks associated with Inventory, Special Inventory, and the
accounts receivable from Customer. The calculation shall be based
upon the forecast provided by Customer pursuant to Section 3.1. The
draw down procedures under the stand-by letter of credit or the
escrow account shall be determined solely by Flextronics.
Flextronics will, in good faith, review Customer's creditworthiness
periodically and may provide more favorable terms once it feels it
is prudent to do so.
4.
MATERIALS PROCUREMENT; CUSTOMER RESPONSIIBILITY FOR
MATERIALS
4.1.
Authorization to Procure Materials. Inventory and Special
Inventory . Customer's accepted purchase orders and
forecast will constitute authorization for Flextronics to procure,
without Customer's prior approval, (a) Inventory to manufacture the
Products covered by such purchase orders based on the Lead Time and
(b) certain Special Inventory based on Customer's purchase orders
and forecast as follows: Long Lead-Time Materials as required based
on the Lead Time when such purchase orders are placed and Minimum
Order Inventory as required by the supplier. Flextronics will only
purchase Economic Order Inventory with the prior approval of
Customer.
4.2.
Customer Controlled Materials . Customer may direct
Flextronics to purchase Customer Controlled Materials in accordance
with the Customer Controlled Materials Terms. Customer acknowledges
that the Customer Controlled Materials Terms will directly impact
Flextronics's ability to perform under this Agreement and to
provide Customer with the flexibility Customer is requiring
pursuant to the terms of this Agreement. In the event that
Flextronics reasonably believes that Customer Controlled Materials
Terms will create an additional cost that is not covered by this
Agreement, then Flextronics will notify Customer and the parties
will agree to either (a) compensate Flextronics for such additional
costs, (b) amend this Agreement to conform to the Customer
Controlled Materials Terms or (c) amend the Customer Controlled
Materials Terms to conform to this Agreement, in each case at no
additional charge to Flextronics. Customer agrees to provide copies
to Flextronics of all Customer Controlled Materials Terms upon the
execution of this Agreement and promptly upon execution of any new
agreements with suppliers. Customer agrees not to make any
modifications or additions to the Customer Controlled Materials
Terms or enter into new Customer Controlled Materials Terms with
suppliers that will negatively impact Flextronics's procurement
activities.
4.3.
Preferred Supplier . Customer shall provide to
Flextronics and maintain an Approved Vendor List. Flextronics shall
purchase from vendors on a current AVL the Materials required to
manufacture the Product. Customer shall give Flextronics every
opportunity to be included on AVL's for Materials that Flextronics
can supply, and if Flextronics is competitive with other suppliers
with respect to reasonable and unbiased criteria for acceptance
established by Customer, Flextronics shall be included on such
AVL's. If Flextronics is on an AVL and its prices and quality are
competitive with other vendors, Customer will raise no objection to
Flextronics sourcing Materials from itself. For purposes of this
Section 4.3 only, the term "Flextronics" includes any companies
affiliated with Flextronics.
4.4.
Customer Responsibility for Inventory and Special
Inventory . Customer is responsible under the conditions
provided in this Agreement for all Materials, Inventory and Special
Inventory purchased by Flextronics under this Section 4.
4.5.
Materials Warranties . Flextronics shall endeavor to
obtain and pass through to Customer the following warranties with
regard to the Materials (other than the Production Materials): (i)
conformance of the Materials with the vendor's specifications
and/or with the Specifications; (ii) that the Materials will be
free from defects in workmanship; (iii) that the Materials will
comply with Environmental Regulations; and (iv) that the Materials
will not infringe the intellectual property rights of third
parties.
5.
SHIPMENTS, SCHEDULE CHANGE, CANCELLATION, STORAGE
5.1.
Shipments . All Products delivered pursuant to the
terms of this Agreement shall be suitably packed for shipment in
accordance with the Specifications and marked for shipment to
Customer's destination specified in the applicable purchase order.
Shipments will be made EXW (Ex works, Incoterms 2000) Flextronics's
facility (unless otherwise expressly agreed by the parties, in
writing, and designated in a top level assembly quote), at which
time risk of loss and title will pass to Customer. All freight,
insurance and other shipping expenses, as well as any special
packing expenses not included in the original quotation for the
Products, will be paid by Customer. In the event Customer
designates a freight carrier to be utilized by Flextronics,
Customer agrees to designate only freight carriers that are
currently in compliance with all applicable laws relating to
anti-terrorism security measures and to adhere to the C-TPAT
(Customs-Trade Partnership Against Terrorism) security
recommendations and guidelines as outlined by the United States
Bureau of Customs and Border Protection and to prohibit the freight
carriage to be sub-contracted to any carrier that is not in
compliance with the C-TPAT guidelines. Any deviations from the
requirements specified on the purchase order, relevant drawings and
specifications must be documented by Flextronics and submitted to
Customer for acceptance consideration prior to shipment.
5.2.
Quantity Increases and Shipment Schedule Changes
.
(a) For any accepted purchase order,
Customer may (i) increase the quantity of Products or (ii)
reschedule the quantity of Products and their shipment date as
provided in the flexibility table below (the "Flexibility
Table"):
Maximum
Allowable Variance From Accepted Purchase Order Quantities/Shipment
Dates
Any decrease in quantity is considered a
cancellation, unless the decreased quantity is rescheduled for
delivery at a later date in accordance with the Flexibility Table.
Quantity cancellations are governed by the terms of Section 5.3
below. Any purchase order quantities increased or rescheduled
pursuant to this Section 5.2 (a) may not be subsequently increased
or rescheduled.
(b) All reschedules to push out
delivery dates outside of the table in subsection (a) require
Flextronics's prior written approval, which, in its sole
discretion, mayor may not be granted. If Customer does not request
prior approval from Flextronics for such reschedules, or if
Customer and Flextronics do not agree in writing to specific terms
with respect to any approved reschedule, then Customer will pay
Flextronics the Monthly Charges for any such reschedule, calculated
as of the first day after such reschedule for any Inventory and/or
Special Inventory that was procured by Flextronics to support the
original delivery sche