Home Contract Samples O OEM Purchase Agreement
Trustpilot

OEM Purchase Agreement: Definition, Terms, Example

Create OEM Purchase Agreement
Review OEM Purchase Agreement
ContractsCounsel Free Pricing Report

Jump to Section

Quick Facts — OEM Purchase Agreement Lawyers

What is an OEM Purchase Agreement?

An OEM purchase agreement is a contract between an original product manufacturer and another party that allows them to use components to build a new product. The contract states what components are authorized to be used by the OEM and what the approved resulting new product is. The contract also states what compensation the OEM will receive from the other contracted party in exchange for the allowance to use the OEM components.

The purpose of hte OEM purchase agreement is to create a legal agreement between an OEM and an acquiring party that is legally enforceable.

Common Sections in OEM Purchase Agreements

Below is a list of common sections included in OEM Purchase Agreements. These sections are linked to the below sample agreement for you to explore.

OEM Purchase Agreement Sample


Exhibit 10.2
CONFIDENTIAL

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED, AND THE EXCLUDED TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS [***].

Original Equipment Manufacturer (OEM) Purchase Agreement
Agreement No.
This Original Equipment Manufacturer (OEM) Purchase Agreement (“Agreement”) is made and entered into by and between SUPER MICRO COMPUTER INC. (“Supplier”), a Delaware corporation having its principal place of business at 980 Rock Avenue, San Jose, CA 95131 and NUTANIX, INC. (“OEM”), a Delaware corporation and an original equipment manufacturer having its principal place of business at 1740 Technology Drive, Suite 150, San Jose, California, 95110, United States.

1.
TERM OF AGREEMENT
This Agreement is effective as of May 16, 2014 (“Effective Date”) and will continue thereafter until terminated in accordance with this Agreement.
2.
PRODUCTS
Under the terms of this Agreement OEM may purchase servers and computer components listed on Exhibit A as updated in writing by the parties hereto on a quarterly basis (“Product(s)”) as an original equipment manufacturer. Additional Products may be ordered by mutual agreement.
3.
PRICE
The current prices (“Prices”) for Product purchased hereunder are listed on Exhibit A and will be updated in writing by the parties hereto on a quarterly basis (“Price List”). Prices include drop shipment handling fee; there shall be no additional drop shipment handling fee. Both parties shall proactively plan and implement cost reduction plan on quarterly basis. Supplier agrees to make reasonable commercial efforts to reduce cost on a continuing basis to make the price more competitive in the market.
4.1 OEM may order Products by submitting written purchase orders or orders via XML to Supplier (each an “Order”). Purchase orders will contain, at a minimum; (i) Product part number, (ii) Product quantity, (iii) requested delivery dates, (iv) Product Price, and (v) delivery address. OEM’s tax exemption certificate number to be provided as a blanket for all production items, if applicable. Orders containing the information listed in this Section 4.1 will be accepted by Supplier [***].
4.2 All Orders will be exclusively governed by the terms and conditions of this Agreement, notwithstanding any contrary terms and conditions contained on any OEM purchase order or Supplier acknowledgment thereof.
5.
LIMITED USE
In order to control the quality of Products and any after sales service, OEM may use the Products solely for integration into systems or subsystems designed by OEM and or assembled for OEM for sale or lease in its regular course of business. OEM expressly agrees that it will use Product ordered only for this purpose.




6.
NON-BINDING FORECAST
To assist Supplier with respect to planning, OEM may, from time-to-time, provide Supplier with a quarterly non-binding forecast and a six-month rolling non-binding forecast [***].
[***]
7.
RESCHEDULES AND CANCELLATIONS
OEM may reschedule or cancel any Order provided that Supplier receives written notice prior to later of: (i) date the Products with respect to such Order are shipped; or (ii) the deliver date specified on such Order. OEM’s liability with respect to any canceled or rescheduled Orders is set forth in Section 9.
8.
[INTENTIONALLY LEFT BLANK]
9.
INVENTORY LIABILITY
9.1 OEM shall have no liability for any inventory other than non-standard material, defined as those finished goods, WIP [***] and raw material set forth in Exhibit C (“Non-Standard Material”). Inventory liability for Non-Standard Material shall be as follows:
a. [***]
b. Obsolete Inventory: OEM shall take receipt of Non-Standard Material inventory that is: (i) aged inventory for a period of [***], and (ii) is not included in the monthly forecast (the “Obsolete Inventory”). [***]
9.2 Supplier will undertake reasonable efforts to reduce Excess Inventory and Obsolete Inventory through open order cancellations, return for credit programs, reworks or allocation to alternative programs (if available and appropriate) for a period not to exceed thirty days beyond end customer demand change.
9.3 Both parties shall meet monthly regarding Excess Inventory and Obsolete Inventory to determine the best method to mitigate OEM’s potential inventory liability. Inventory liability for Non-Standard Material will be evaluated monthly or as mutually agreed by the parties.
10.
PAYMENT
10.1 [***]
10.2 [***]
11.
TAXES
OEM will be responsible for all taxes with respect to Orders for Products placed by OEM (except Supplier’s income taxes), unless OEM provides Supplier with tax exemption documentation required by the applicable taxing authority.
12.
DELIVERY TERMS
12.1 Title. Title to the Products and all risk of loss or damage thereto will pass to OEM according to the following delivery term: [***].
12.2 Time. Supplier will use commercially reasonable efforts to ship Products from its warehouse by the shipment date specified on the Order, provided that the date of shipment will be [***]. Supplier will use best commercial efforts to make shipment within no more than [***] from Order date for any other inventory, or inform OEM within 24 hours from the date of the placement of the Order if Supplier cannot make the shipment within [***] from Order date.
13.
SHORTAGE




In the event of a shortage of any Products, Supplier will first fulfill OEM’s Order in quantities equal to the order rate as measured by the monthly order rate during the preceding three-month period (the “Order Rate”). Supplier will use its best commercial efforts to satisfy OEM’s demand in excess of the Order Rate.
14.
ENVIRONMENTAL COMPLIANCE
Supplier represents and warrants that no Products sold by or otherwise transferred by Supplier to OEM contain: lead, cadmium, mercury, hexavalent chromium, polybrominated biphenyls (PBBs), polybrominated biphenyl ethers (PBDE), or any other hazardous substances the use of which is restricted under EU Directive 2011/65/EU (8 June 2011) (RoHS Recast); chemicals restricted under the Montreal Protocol on ozone-depleting substances or the law of the countries into which Product is shipped; or other materials restricted by applicable law unless expressly agreed otherwise by OEM in writing in advance. From time to time, OEM may request evidence of Supplier’s compliance with EU Directive 2011/65/EU, and Supplier shall make best efforts to provide this information in a timely manner.
15.
INCOMING INSPECTION AND ACCEPTANCE
OEM may conduct incoming inspection testing to confirm that the Product conforms to any mutually agree upon specification. Product found to be nonconforming or otherwise fails to operate (“DOA”) within the greater of: (i) initial 45 days period from the delivery date, or (ii) the period set forth in the warranty table on Exhibit B, may be returned by OEM to Supplier for replacement. Supplier will replace the Products within fifteen (15) business days. Product returned by OEM must be in Supplier’s standard packaging or similar packaging agreed to by the parties. Transportation charges associated with the replacement (a) to be shipped from OEM to Supplier will be borne by OEM and reimbursed by the Supplier, (b) to be shipped back to OEM, or original delivery destination (as directly by OEM) will be borne by Supplier.
16.
EPIDEMIC FAILURES
Epidemic Failures. For purposes of this Agreement, “Epidemic Failure Event” shall mean the Product failures (i) having a similar cause related to a particular component, verified by the supplier, and by OEM, or an independent third party on behalf of OEM, (ii) occurring at any time during the applicable warranty period (as set forth in Section 17) with respect to the particular Product (iii) resulting from defects in materials, workmanship, manufacturing process or design or failure to conform with the Specifications, (iv) [***]. Upon occurrence of an Epidemic Failure Event, the remedies of this Section 16 shall apply to the entire Product population affected by the root cause failure until corrective action is complete. Supplier’s obligation to ensure that components meet the Specification include, but are not limited to, incoming quality control, sub-tier audits, statistical process control, control of workmanship, outgoing quality inspection and all other relevant elements of quality set forth in this Agreement.
Notwithstanding the foregoing, this Section 16 shall apply or be enforced with respect to third party components listed below only during the respective warranty period set forth in Section 17:
[***]
Upon occurrence of an Epidemic Failure Event, OEM shall promptly notify Supplier, and shall provide, if known and as may then exist, a description of the failure, and the suspected lot numbers, serial numbers or other identifiers, and delivery dates, of the failed Products. OEM shall make available to Supplier, samples of the failed Products for testing and analysis. Upon receipt of product from OEM, Supplier shall promptly provide its preliminary findings regarding the cause of the failure. The parties shall cooperate and work together to determine the root cause. Thereafter, Supplier shall promptly provide the results of its root cause corrective analysis, its proposed plan for the identification of and the repair and/or replacement of the affected Products, and such other appropriate information. Supplier shall recommend a corrective action program which identifies the affected units for repair or replacement, and which minimizes disruption to the end user. OEM and Supplier shall consider, evaluate and determine the corrective action program.
Upon occurrence of an Epidemic Failure Event, Supplier shall: (a) at OEM’s option: (i) either repair and/or replace the affected Products; or (ii) provide a credit or payment to OEM in an amount equal to (a) the cost to OEM for qualified, replacement Products acceptable to OEM; and (b) all labor, equipment and processing costs incurred by OEM or third parties in the implementation of the corrective action program, including test procedures, test equipment, the testing of Products, the cost of repairing and/or replacing the affected Products; and (c) reasonable freight, transportation, customs, duties, insurance,




storage, handling and other incidental shipping costs incurred by OEM in connection with the repair and/or replacement of the affected Products.
17.
LIMITED WARRANTY AND DISCLAIMER
17.1 Supplier hereby represents and warrants that the Product(s) will conform to the Product specification and documentation during the periods set forth in Exhibit B under the heading “Super Micro Limited Warranty.”
17.2 EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, THE FOREGOING STATES THE SOLE WARRANTY AND EXCEPT AS SET FORTH IN WRITING IN THIS AGREEMENT, SUPPLIER MAKES NO PERFORMANCE REPRESENTATIONS, WARRANTIES, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS AND ANY SERVICES COVERED BY OR FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (A) OF MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, OR (C) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. THE PROVISIONS OF THE FOREGOING LIMITED WARRANTY AND WARRANTY DISCLAIMER ARE REFLECTED IN THE PRODUCT PRICES.
17.3 Stored Data. OEM will be responsible for saving or backing up data contained in any Product returned to Supplier for in-warranty or out-of-warranty repairs or service. SUPPLIER WILL HAVE NO RESPONSIBILITY FOR SUCH DATA AND WILL HAVE NO LIABILITY ARISING OUT OF ANY DAMAGE TO OR LOSS OF SUCH DATA WHILE THE PRODUCT IS IN SUPPLIER’S POSSESSION.
18.
LIMITATION OF LIABILITY
[***]
19.
INDEMNIFICATION
19.1 Subject to Section 19.2 below, each Party agrees to defend, indemnify and hold the other Party its officers, directors, agents, distributors, resellers, customers and employees harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorney’s fee and costs) or liabilities that may result, in whole or in part, from, with respect to each party’s obligations to the other party: its gross negligence, willful misconduct, or infringement of intellectual property rights of any third party; and with respect to Supplier’s obligations to OEM: damage to personal property or personal injury resulting from the Products.
19.2 Each indemnifying party’s obligations as stated in this Section 19 are subject to the following condition and exclusion: the indemnified party must give the indemnifying party prompt notice of the claim, sole control of its defense, and all reasonable cooperation.
19.3 Limitations. Notwithstanding the foregoing, neither party shall have any obligation hereunder for claims, actions or demands under this Section 19 to the extent resulting from each party’s use of the other’s product, component or software in a combination which violates the intellectual property rights of third parties.
20.
NOTICE
Any notice required or permitted under the terms of this Agreement, or when any statute or law requiring the giving of notice, may be delivered (i) by registered airmail or registered courier service, or (ii) by electronic mail, if properly posted and sent to the relevant party at the address set forth below or to such changed address as may be given by either party to the other by such written notice. Any such notice shall be deemed to have been given upon receipt or upon the tenth (10th) day after having been dispatched in the manner provided above, whichever is earlier.





For Supplier: Super Micro Computer, Inc.
980 Rock Avenue
San Jose, CA 95131
Phone: ________________________
Facsimile: ________________________


For OEM:
Nutanix, Inc.
1740 Technology Drive, Suite 150
San Jose, California 95110
Attn:
Legal Counsel
Phone:
855-NUTANIX (688-2649)
Facsimile:
408-916-4039
21.
CONFIDENTIAL INFORMATION
21.1 During the Term of the Agreement, OEM and Supplier may, each as “Recipient,” receive or have access to certain information of the other party, each as “Discloser,” that is identified as Confidential Information, including, though not limited to, information or data concerning the Discloser’s Products or Product plans, business operations, strategies, customers and related business information. Either Party’s quotes or other pricing information shall be considered Confidential Information regardless of whether it is separately identified as such. Recipient will protect the confidentiality of Confidential Information with the same degree of care as Recipient uses for its own similar information, but no less than a reasonable degree of care. Confidential Information may be used only by those employees of Recipient who have a need to know such information for the purposes of this Agreement. OEM and Supplier each acknowledge that all Supplier software, technical manufacturing information and forecasts are deemed Confidential Information, which will be protected for a term of five (5) years from the date of disclosure. Further, Supplier agrees that it shall make no use of any software provided to Supplier by OEM other than as explicitly set forth herein.
21.2 Exclusions. The foregoing confidentiality obligations will not apply to any information that is (a) already known by Recipient prior to its first disclosure by Discloser and not otherwise subject to a duty of confidentiality, (b) independently developed by Recipient prior to or independent of the disclosure without use of Discloser’s Confidential Information, (c) publicly available through no fault of Recipient, (d) rightfully received from a third party with no duty of confidentiality, (e) disclosed by Recipient with Discloser’s prior written approval, or (f) disclosed under operation of law.
22.
INTELLECTUAL PROPERTY
22.1 Under the terms of this Agreement, neither party hereto acquires any right to any of the other party’s trademarks, patents, service marks, trade names, copyrights, commercial symbols, goodwill, or other form of intellectual or commercial property of Supplier, nor any physical media on which it is delivered or stored regardless of location, and may not use such property or rights in any manner other than as explicitly set forth herein. Each party hereto acknowledges that it does not have and will not have any right to enhance or reverse engineer the Product except (i) in connection with OEM’s support and testing efforts and making modification and additions to software, (ii) as authorized by Supplier, or (iii) as explicitly stated herein.
22.2 Software Products. Each party acknowledges that any software products provided to it by the other party hereunder (“Software Product”) constitutes only discrete copies of software, the media in which it is stored, and related documentation, as shipped to OEM. Nothing herein transfers any right, title or interest in the software or any intellectual property rights therein from one party to the other. Supplier’s use or distribution of the OEM’s Software Products requires and is subject to a separate software license agreement.
23.
PRODUCT DISCONTINUANCE; SUPPLY CONTINUITY; END OF LIFE
23.1 Supplier may discontinue manufacture of any Product of Supplier in its sole discretion (“Product Discontinuance”), by providing OEM with [***] prior written notice. OEM may continue to place Orders and purchase Products from Supplier during the [***] notice period according to the terms and conditions, including but not limited to pricing, Orders, and delivery dates, available prior to the Product Discontinuance notice. Following any termination of the Agreement, OEM may continue to




place orders for Products for a period of [***] from the date of termination (the “Supply Continuity Period”). During such period the terms and conditions of this Agreement, including but not limited to the payment of fees, shall continue with respect to orders placed during the Supply Continuity Period.
23.2 Supplier may discontinue the availability of third party supplied components (such as drives and memory) by providing OEM with [***] prior written notice (an “End of Life Notice”). OEM may continue to place Orders and purchase Products from Supplier during the End of Life Notice according to the terms and conditions, including but not limited to pricing, Orders, and delivery dates, available prior to the End of Life Notice. Notwithstanding the foregoing, OEM may place “Last-Time-Buy” Orders.
24.
ARBITRATION
The parties shall settle any controversy arising out of this Agreement by arbitration in Santa Clara County, California in accordance with the rules of the American Arbitration Association. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The arbitrator may award attorneys’ fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary, nothing in this Section shall prevent either party from seeking specific performance, including but not limited to injunctive relief in a court of competent jurisdiction.
25.
TERMINATION
25.1 Term. The term of this Agreement shall commence on the Effective Date and continue for a period of three (3) years (“Initial Term”) and shall thereafter be automatically renewed for additional one (1) year period unless either party gives written Notice of termination at least one-hundred and eighty (180) days before the anniversary of the Initial Term or of any renewal term, as applicable.
25.2 Payment Breach. Except as otherwise provided herein, Supplier may suspend acceptance of Orders in the event OEM fails to cure any breach of a payment obligation hereunder within [***] of written notice from Supplier describing the breach provided such suspension terminates upon the earlier of: (i) resolution of the payment dispute; or (ii) executive management of the parties agree to meet to resolve the payment dispute.
25.3 Termination for Cause. Either party may terminate this Agreement at any time if: (i) the commencement of a proceeding that will lead to the dissolution of the other party’s corporate entity or the cessation of its business operations without an assignment to a surviving entity, (ii) the other party commits a material breach of this Agreement which remains uncured more than [***] after written notice of such breach from the non-breaching party, or (iv) the other party commits a breach of a material obligation hereunder which by its nature is incurable.
25.4 Effect of Termination or Expiration. In the event of a termination or expiration of this Agreement, the provisions of this Agreement will continue to apply to all Orders placed by OEM prior to the effective date of such termination of expiration, except for any Order, or portion thereof, canceled pursuant to “Termination for Cause.”. Termination or expiration of this Agreement will not, however, relieve or release either party from making payments which may be owing to the other party under the terms of this Agreement.
26.
EXPORT REGULATION COMPLIANCE
Each party acknowledges and agrees that its respective exports of any Product or any Proprietary Information shall comply with the United States Export Administration Act as amended from time to time, with the Export Administration Regulations promulgated from time to time hereunder, all other export laws and regulations of the United States and all amendments, modifications or additions thereto, including all laws and regulations relating to re-export.
27.
RELATIONSHIP OF PARTIES
The relationship of Supplier and OEM established by this Agreement is that of independent contractor. Nothing contained in this Agreement may be construed to (i) give either party the power to direct and control the day to day activities of the other, (ii) constitute the parties as partners, joint ventures, co-owners or otherwise participants in a joint or common undertaking, or (iii) allow OEM to create or assume any obligation on behalf of Supplier for any purpose whatsoever. All financial obligations associated with OEM’s business are the sole responsibility of OEM.




This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California excluding its conflict of law rules and principles. The parties agree that the proper and exclusive jurisdiction and venue of any legal action brought in connection with this Agreement shall be in the Federal or State courts located in Santa Clara County in the State of California. The United Nations Convention on Contracts for International Sale of Goods does not apply to this Agreement.
29.
FORCE MAJEURE
Neither party will be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to earthquake, fire, flood, war, embargo, strike, and riot, the intervention of any governmental authority or any other similar situation or circumstances which is beyond such party’s control and renders such party unable to secure materials and transportation facilities (a “Force Majeure Event”). If a Force Majeure continues for more than ten (10) days, the party injured by the inability of the other to perform will have the right to (a) immediately terminate this Agreement by providing written notice, or (b) treat this Agreement as suspended during the delay and reduce any commitment in proportion to the duration of the delay,. The party claiming a Force Majeure Event shall use best efforts to mitigate or eliminate the impact of such “Force Majeure” and shall attempt to resume the performance of obligations delayed or impeded by such event.
30.
ASSIGNMENT
OEM may not assign or otherwise transfer its rights or obligations under this Agreement without prior written consent of Supplier, which will not be unreasonably withheld. The foregoing notwithstanding, OEM may assign this Agreement in the case of a merger or acquisition involving the majority of OEM’s assets. The assignee’s ability to place Orders according to this Agreement will be limited to Orders with respect to the OEM’s products (and updated versions of the same) as of the date of such assignment.
31.
ATTORNEY FEES
In the event of any litigation or arbitration hereunder, the arbitrator or court will award costs and reasonable attorney’s fees to the prevailing party.
32.
SEVERABILITY
The terms of this Agreement are severable. If any term is held invalid, illegal, or unenforceable for any reason whatsoever, such term will be enforced to the fullest extent permitted by applicable law, and the validity, legality, and enforceability of the remaining terms will not in any way be affected or impaired thereby.
This Agreement and its Exhibits constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces all prior oral or written agreements, representations and understandings of the parties with respect to such subject matter. Except as expressly provided for herein, this Agreement may be changed only by written amendment signed by the parties.
34.
SURVIVAL
Except as stated to the contrary herein, all obligations herein which by their terms or nature survive termination of this Agreement will continue thereafter until fully performed.






IN WITNESS WHEREOF, the parties have executed this agreement effective as of the date first written above.

Supplier:
OEM:
Super Micro Computer, Inc
NUTANIX INC.
By:
/s/ Robert Aeschliman
By:
/s/ Kenneth Long
Name:
Robert Aeschliman
Name:
Kenneth Long
Title:
General Counsel
Title:
VP of Accounting







EXHIBIT A
PRODUCT AND PRICE LIST
[PROVIDED QUARTERLY]







EXHIBIT B
WARRANTY
Warranty Coverage Table:

Supermicro Standard Warranty Remedies for OEM Product (coverage dates calculated from date of invoice)

Eligible Items:

Products set forth on Exhibit A, as updated from time-to-time .

Products set forth on Exhibit A, as updated from time-to-time .

•
Three-year labor 1 :
•
Three-year parts2                    [***]
•
One-year Advance parts replacement services [***]
•
120 days parts DOA cross ship 3

•
One-year parts 2
•
120 days parts DOA cross ship 3 [***]
•
Return within 30 days return for credit 4

•
Five-year parts 2 [***]
•
120 days parts DOA cross ship 3
•
Return within 30 days return for credit 4

•
Five-year parts 2
•
120 days parts DOA cross ship 3 [***]
•
Return within 30 days return for credit 4

•
Three-year parts 2
•
120 days parts DOA cross ship 3 [***]
•
Return within 30 days return for credit 4

FUSION IO Warranty terms does not include advance cross shipment. Add Fusion IO Support agreement :
F11-GNR-1T65-CS-3YR
SNS, FUSION-IO IOSCALE, [***]
1650GB MLC, GOLD NON-
RETURN SUPPORT, 3YR

1.
Labor coverage includes any labor costs incurred for repairs by Supermicro during coverage period.

2.
Parts coverage includes any material and parts costs incurred for repairs by Supermicro during coverage period.

3.
In the event a product is dead on arrival (“DOA”), Supermicro shall directly ship to Nutanix, at’s direction, a replacement product during the coverage period, which shall begin on the date of Supermicro’s invoice.

4.
Supermicro shall refund a credit for the current value of the product if said product is returned under the following criteria: (i) the product is returned for refund during thirty (30) day from Supermicro’s invoice date; and (ii) Supermicro is unable to repair or replace the product. The date of return shall be the date Customer ships product to Supermicro as long as the refund request is made within the thirty (30) day period described in this section.

Remark: Out of Warranty
If returned products are: a) within the warranty period, b) accompanied by the proper Return Materials Authorization (“RMA”) and c) defective as determined by Supermicro; Supermicro will, at its option: 1) repair the defective product within 15 working days, or 2) issue a credit to Nutanix for the current value of the product. Supermicro has no obligation to repair or replace parts beyond the three-year warranty period; however, Supermicro may repair or replace provided that 1) Nutanix pays




for the cost of obtaining the part(s) and 2) the part(s) are available for purchase. Unless otherwise agreed to in writing by the parties all repairs will be performed with new parts.







EXHIBIT C
[***]
This EXHIBIT C is incorporated as part of the Original Equipment Manufacturer (OEM) Purchase Agreement (“Agreement”) which together with this EXHIBIT C, and other cited Exhibits, Schedules and Addendums, form the entirety of the Agreements, entered into as of the first date written below, by and between Super Micro Computer, Inc. (“SMCI”), a Delaware corporation, having a principal place of business at 980 Rock Avenue, San Jose, CA 95131 and NUTANIX INC. (“OEM”), a Delaware Corporation, having a principal place of business at 1740 TECHNOLOGY DR. SUITE 400, SAN JOSE, CA, 95110. The terms and conditions set forth in this EXHIBIT C will be construed and governed by the terms and conditions set forth in the Agreement.
[PROVIDED PERIODICALLY]
IN WITNESS WHEREOF, the parties have executed this agreement effective as of the date first written above.

Supplier:
OEM:
Super Micro Computer, Inc
By:
By:
Name:
Name:
Title:
Title:



























AMENDMENT ONE TO ORIGINAL EQUIPMENT MANUFACTURER (OEM) PURCHASE AGREEMENT

This Amendment One (“Amendment”) to the Original Equipment Manufacturer Purchase Agreement (“Agreement”) by and between SUPER MICRO COMPUTER INC. (“Supplier”) and NUTANIX, INC. (“OEM”) is entered into as of November 13, 2017 (“Amendment Effective Date”). Collectively Supplier and OEM are referred to as the “Parties”.

RECITALS

A. The Parties entered into the Agreement as of May 16, 2014.

B The parties now desire to amend the Agreement to add Nutanix Netherlands B.V. as a party to the Agreement and to add terms and conditions around the “Software at Scale” program (further defined below).

NOW THEREFORE, in consideration of the foregoing, and for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.
The Parties agree that Nutanix Netherlands B.V., an entity affiliated with Nutanix, Inc., should be added to the Agreement as a party. Therefore all references to “OEM” in the Agreement, as amended, shall include both Nutanix, Inc. and Nutanix Netherlands, B.V.

2.
A new paragraph is added to the end of Section 2 as follows:
In addition to the purchase of Product(s) by OEM, Exhibit D, “Software at Scale” describes the process and the terms under which Supplier shall sell Software at Scale Products (as defined in Exhibit D). For additional clarity, the term “Product(s)” shall not include Software at Scale Products.
3.
Section 8 of the Agreement is deleted in its entirety and replaced with the following:

8. APPOINTMENT AS [***]. Supplier [***] such appointment, as a [***] for Supplier with [***] and the [***]. The services performed as [***] includes the following:
a.
Life Cycle [***] will [***] and provide such [***]. For the purpose of clarity, no [***] shall be [***] to them.
b.
[***]. Supplier shall use commercially reasonable efforts to [***] manufacturing as part of the forecasting mechanism described in Section 6 of the Agreement [***].
c.
[***]. OEM [***] of Software at Scale Products as part of performing [***] be solely [***] Software at Scale Hardware (as defined in Exhibit D). OEM [***] the Software at Scale Hardware and [***]. However, OEM [***] that [***] the Software at Scale Hardware utilizing [***].

4.
A new Exhibit D is added to the Agreement as attached to this Amendment.

5.
No other changes are made to the Agreement, and following the Amendment Effective Date, all references to the “Agreement” shall mean the Agreement as amended by this Amendment.






IN WITNESS WHEREOF, the parties have executed this Amendment as of the Amendment Effective Date.
NUTANIX INC. NUTANIX NETHERLANDS, B.V.
By: /s/ Duston Williams By: /s/ Kenneth Long
Title: CFO Title: Managing Director 1
Date: November 13, 2017 Date: November 13, 2017

By: /s/ Servais Willie Ngabo
Title: Managing Director 2
Date: November 13, 2017



ACKNOWLEDGED AND AGREED:
SUPER MICRO COMPUTER, INC.
By: /s/ Cenly Chon
Title: VP, Sales, Strategic Accounts
Date: 11/10/2017






EXHIBIT D
SOFTWARE AT SCALE

This EXHIBIT D is incorporated as part of the Agreement which together with this EXHIBIT D, and other cited Exhibits, Schedules, and Addendums, form the entirety of the Agreements entered into as of the Amendment Effective Date. Capitalized terms not defined below have the definitions set forth in the Agreement.
1.
INTRODUCTION

This Exhibit D shall enable Supplier to sell Software at Scale Hardware [***] (defined below) and OEM to license software [***]. Such program shall be referred to as “Software at Scale”. To facilitate such sales of Software at Scale Products, [***] in accordance with the terms of Section 4.
The goal of the Software at Scale program is that the End Customer (defined below) [***] purchasing the Software at Scale Products and includes the following characteristics:
•
[***] will be made by the [***].
•
The Parties shall enable the End Customer to [***] with Products contemplated under the Agreement as of the Effective Date of the Agreement.
•
The Supplier shall [***] and OEM shall provide the software license [***] to the End Customer.
•
Supplier may impose any qualifications to do business [***] and may choose to [***], at its sole discretion.
•
Provided that the End Customer purchases Nutanix support, OEM shall support the hardware and software [***] as set forth in Section 6 of this Exhibit D.
•
OEM has no involvement or responsibility for any associated [***] and therefore, is not qualified for any promotion program for its customers related to its [***].

2.
DEFINITIONS. Capitalized terms in this Exhibit D shall have the meanings set forth below.

a.
“[***]” means another entity in the sales channel for the [***] and not use the [***].
b.
“ End Customer ” means the last entity who purchases the Software at Scale Products for their own use and not for resale to another entity.
c.
”Software at Scale [ *** ] ” means [***] as described in this Agreement.
d.
“ Software at Scale Hardware ” means the [***].
e.
“ Software at Scale Products ” means [***] as part of the Software at Scale program. These Software at Scale Products shall be designated with the suffix [***].
f.
“ Territory ” means the United States of America.

3. INVENTORY LIABILITY FOR SOFTWARE AT SCALE PRODUCTS
OEM shall provide forecasts for Products that include [***]. For the purpose of clarity, this Exhibit D does not modify either Party’s obligations with regard to inventory liability as described in the Agreement, [***] of the Agreement. As [***] are accepted, the [***].
4. APPOINTMENT AS [ *** ]
a.
Non-Exclusive Appointment. Supplier [***], and [***] such appointment, to act as an [***] during the term of Agreement (as described in Section 1 of the Agreement), solely in accordance with the terms and conditions of this Agreement.

b.
OEM Marketing Obligations as [***]. OEM shall, at its own expense, market the Software at Scale program including, advertising, promoting, and soliciting the sale of the Software at Scale Products [***] consistent with good business practice. OEM is not qualified for Supplier’s marketing promotion program.





c.
OEM Obligations to Provide Quotes [***]. For expediency purposes, [***]. For the purpose of clarity, the Parties agree that the sales quotes [***] are not binding until agreed to in writing [***]. Supplier may reject any such quotes before they become an Order in its sole discretion.

5. SUPPLIER OBLIGATIONS
a.
Supplier shall fulfill any [***] that it [***] as part of the processes outlined in this Exhibit D.

b.
Supplier shall provide End Customers (through the sales channel) with a standard [***] portion of the [***] consistent with or equivalent to the [***].

c.
As part of fulfilling any Software at Scale Orders, Supplier shall also meet the following requirements in a timely fashion such that an [***]. At a minimum, Supplier shall:

i.
[***];

ii.
Maintain a [***] on time ship rate for all Software at Scale Products shipped based on a [***] lead time;

iii.
[***]; and

iv.
Manage transportation and return material authorization [***] as they arise.

6. END CUSTOMER SUPPORT
OEM separately sells product support for Product(s) and Software at Scale Products shipped to End Customers. Provided that the End Customer has purchased Nutanix support from OEM, either directly or indirectly, OEM shall provide such support to the [***]. To facilitate such support, upon shipment of the Software at Scale Hardware, Supplier shall provide OEM with all serial number information so that OEM can provide such support.




AMENDMENT TWO TO ORIGINAL EQUIPMENT MANUFACTURER (OEM) PURCHASE AGREEMENT

This Amendment Two (“Amendment Two”) to the Original Equipment Manufacturer Purchase Agreement (“Agreement”) by and between SUPER MICRO COMPUTER INC. (“Supplier”) and NUTANIX, INC. (“OEM”) is entered into as of October 31, 2018 (“Amendment Effective Date”). Collectively Supplier and OEM are referred to as the “Parties”.

RECITALS

A. The Parties entered into the Agreement as of May 16, 2014.

B The parties now desire to amend the Agreement to delete the existing Exhibit C and replace it with a new Exhibit C.

NOW THEREFORE, in consideration of the foregoing, and for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.
The Parties agree that Exhibit C is deleted in its entirety and replaced with the following:








CONFIDENTIAL

EXHIBIT C
NON-STANDARD MATERIAL

This EXHIBIT C is incorporated as part of the Original Equipment Manufacturer (OEM) Purchase Agreement ("Agreement") which together with this EXHIBIT C, and other cited Exhibits, Schedules and Addendums, form the entirety of the Agreements, entered into as of the first date written below, by and between Super Micro Computer, Inc. ("SMCI"), a Delaware corporation, having a principal place of business at 980 Rock Avenue, San Jose, CA 95131 and NUTANIX INC., a Delaware Corporation, having a principal place of business at 1740 TECHNOLOGY DR. SUITE 400, SAN JOSE, CA, 95110 and NUTANIX NETHERLANDS B.V. incorporated and registered in The Netherlands with its registered office at Scorpius 100, 2132 LR Hoofddorp, The Netherlands (collectively Nutanix Inc. and Nutanix Netherlands, B.V. are referred to as “OEM”). The terms and conditions set forth in this EXHIBIT C will be construed and governed by the terms and conditions set forth in the Agreement.

1.
As stated in Section 9.1 of the Agreement, OEM has no inventory liability inventory other than the Non-Standard Material, which is described in the spreadsheet attached to this Amendment 2.

2.
Where a component in the list of Non-Standard Material is listed in the “Nutanix Liability” column as being “ [***] of On Hand Value & On Order to Lead Time”, Nutanix shall only have liability of [***] of the price of the relevant Non-Standard Material component.

3.
No other changes are made to the Agreement, and following the Amendment Two Effective Date, all references to the “Agreement” shall mean the Agreement as amended by this Amendment Two.




IN WITNESS WHEREOF, the parties have executed this Amendment as of the Amendment Effective Date.
NUTANIX INC.
By:    /s/ David Sangster
Title:     EVP, Engineering & Operations Nutanix
Date: October 31, 2018
NUTANIX NETHERLANDS, B.V.
By:     /s/ Kenneth Long
Title:    Director
Date:    October 31, 2018

NUTANIX NETHERLANDS, B.V.
By:     /s/ Servais Willie Ngabo
Title:    Managing Director
Date:    October 31, 2018

ACKNOWLEDGED AND AGREED

SUPER MICRO COMPUTER INC.
By:     Cenly Chen
Title:    VP of Sales
Date:    10/31/2018









CONFIDENTIAL

Supermicro Part Number
Nutanix Part Number
Lead Time (Work Days)
Nutanix Liability
Cost $


[***]





Reference:
Security Exchange Commission - Edgar Database, EX-10.2 3 ex102-04302019x10q.htm EXHIBIT 10.2, Viewed March 6, 2023, View Source on SEC.

Who Helps With OEM Purchase Agreements?

Lawyers with backgrounds working on oem purchase agreements work with clients to help. Do you need help with an oem purchase agreement?

Post a project in ContractsCounsel's marketplace to get free bids from lawyers to draft, review, or negotiate oem purchase agreements. All lawyers are vetted by our team and peer reviewed by our customers for you to explore before hiring.

See Real Purchase Agreement Projects

Florida Condo closing contract Review
  • Florida
  • 3 lawyer bids
  • $300 - $500
View Details
California Company I hold a small portion of stock in is being bought out and I have been advised to have a lawyer review the purchase contract. Review
  • California
  • 5 lawyer bids
  • $1 - $1,000
View Details
Florida Service contract for DFY Amazon FBA business Drafting
  • Florida
  • 5 lawyer bids
  • $375 - $995
View Details
California Hair Salon and Spa Purchase Agreement Review
  • California
  • 4 lawyer bids
  • $500 - $1,595
View Details
Minnesota Land sale purchase agreement Drafting
  • Minnesota
  • 2 lawyer bids
  • $250 - $850
View Details
Georgia Review purchase Agreement for Small Franchise Aquisition. Review
  • Georgia
  • 7 lawyer bids
  • $325 - $2,000
View Details

See all Purchase Agreement projects


ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.


Need help with an OEM Purchase Agreement?

Create a free project posting
Draft Contract
Review Contract
Clients Rate Lawyers 4.9 Stars
based on 20,092 reviews

Meet some of our OEM Purchase Agreement Lawyers

Kenneth G. on ContractsCounsel
View Kenneth
4.9 (11)
Member Since:
November 25, 2023

Kenneth G.

Partner
Free Consultation
Washington, DC
19 Yrs Experience
Licensed in DC, PA
Georgetown University

Kenneth E. Gray, Jr. is a business and tax attorney who advises entrepreneurs, investors, and closely held companies on transactions, tax planning, disputes, and long-term wealth structuring. He focuses on helping clients make legally sound decisions that also make business sense. Ken’s practice includes business formation and restructuring, mergers and acquisitions, private investments and fundraising transactions, contract drafting and negotiation, and cross-border matters. He also maintains a significant tax practice, advising on federal and state structuring, specialty filings (including partnership, corporate, and non-resident matters), and representing clients in disputes before the U.S. Tax Court and other federal and state tribunals. In addition to his transactional work, Ken handles commercial and business litigation, including tax controversies, financial disputes, and partnership matters. His litigation experience informs how he structures deals and governance documents, with an eye toward preventing disputes before they arise. Ken also advises individuals and families on estate planning, trust formation, tax-efficient wealth transfer strategies, and probate administration, including planning involving closely held businesses and foreign assets. Before practicing law, Ken worked in banking and private equity, including managing a $5 billion emerging markets fund-of-funds portfolio at the U.S. Overseas Private Investment Corporation (OPIC) and serving in equity research at ABN AMRO. That financial background allows him to understand transactions from both the legal and capital perspective. He holds a J.D. from Georgetown University Law Center and an MBA from Yale University. He practices before the U.S. Tax Court, various state courts, and other federal courts.

Recent  ContractsCounsel Client  Review:
5.0

"It is not easy to find a lawyer that knows Offshore Asset Protection Trusts, which own a foreign LLC, which owns a USA LLC. Fines could reach $100K if the tax forms are incorrect, or not filed. He was able to review my draft returns and provide memos with required changes (many, many changes), after 1 follow-up everything was basically done other than a few tiny edits. I really appreciated how he worked me in, right in the busiest time of tax season, to ensure there were no errors. Would definitely hire again."

See all Kenneth's reviews
Matthew S. on ContractsCounsel
View Matthew
4.7 (6)
Member Since:
January 4, 2023

Matthew S.

Attorney
Free Consultation
Denver, Colorado
11 Yrs Experience
Licensed in CA, CO
Denver University

Attorney with a wide-range of experience

Recent  ContractsCounsel Client  Review:
5.0

"Matthew is exceptionally timely. He had a response back to me three days before the due date. He is easy to work with and an excellent communicator. If I ever need assistance in the future, I will reach out to Matthew."

See all Matthew's reviews
Steven W. on ContractsCounsel
View Steven
4.9 (21)
Member Since:
June 2, 2023

Steven W.

Attorney
Free Consultation
Texas & North Carolina
5 Yrs Experience
Licensed in NC, NY, TX
North Carolina Central University

Attorney Steven Wax is ardent about helping his clients. Whether creating personalized estate plans, drafting and negotiating contracts or other legal matters. Steven’s goal is to assist and counsel his clients to protect them and their loved ones. Steven grew up on Long Island, New York. He attended the University of Massachusetts in Amherst earning a BS in Sport Management. He earned his paralegal certificate at Duke University and earned his Juris Doctorate from North Carolina Central University School of Law in Durham, NC. Steven has an extensive legal career in the life science sector, working for some of the world’s largest Contract Research Organizations since 2013. Steven has negotiated a broad range of contracts for both businesses and individuals. Steven participated in the NCCU Elder Law Project, where he prepared wills, durable powers of attorney, living wills, and health care powers of attorneys for low/fixed income clients in Durham and surrounding counties. Steven finds meaningful ways to share his skills and passion with his community. Steven volunteers his time to Wills for Heroes, which provides no-cost estate planning documents to first responders and their families, through the NC Bar Foundation.

Recent  ContractsCounsel Client  Review:
4.7

"Steven was patient and effective when answering my questions and with the drafting process. Thank you Steven"

See all Steven's reviews
Kevin A. on ContractsCounsel
View Kevin
5.0 (1)
Member Since:
April 11, 2024

Kevin A.

Senior Commercial Real Estate Attorney
Free Consultation
San Francisco Bay Area, California
21 Yrs Experience
Licensed in CA
University of California, Hastings College of the Law

With nearly 20 years’ experience as a seasoned commercial real estate attorney, I am highly proficient in property acquisitions, financing, sales and transfers (including renewable energy and telecommunications projects), commercial lease agreements (office, industrial, retail, and hospitality), construction and property management contracts, due diligence matters, title and survey analysis, strategic litigation oversight, and corporate and regulatory compliance (operating agreements, bylaws, shareholder agreements, NDAs, and indemnity agreements).

Recent  ContractsCounsel Client  Review:
5.0

"I hired Kevin to review a business lease and purchase agreement - he was extremely helpful and knowledgeable. 10/10, highly recommend!"

See all Kevin's reviews
Kelly C. on ContractsCounsel
View Kelly
Member Since:
April 11, 2024

Kelly C.

Attorney at Law
Free Consultation
Cleveland, OH
7 Yrs Experience
Licensed in OH
WMU Thomas M Cooley Law School

Hello! I'm an attorney who practices mainly landlord/tenant law (eviction, both plaintiff and defendant side); and criminal law (misdemeanor). I also work as appearance counsel to fill in at hearing when conflicts arise for other lawyers.

Song L. on ContractsCounsel
View Song
Member Since:
April 15, 2024

Song L.

Business and Real Estate Lawyer
Free Consultation
Minnesota
30 Yrs Experience
Licensed in MN
University of Minnesota Law School

In her professional life, Song Lo brings in a depth experience as general counsel to various companies and organizations in business and the real estate arena. Over the last 26 years, she has advised both companies and individuals in the areas of corporate investments, real estate development and contracts across multiple markets.Song has extensive experience in understanding how the law impacts companies wherever they might be in their age and stage. Important to investor and entrepreneur efforts, she has advised in the acquisition and transfer of shareholder stocks and assisted in the restructuring of private companies. Her specific areas of expertise are in corporate organization, mergers and acquisitions, employment, investments and real estate development. Specifically in real estate, Song participated in all aspects of development including pre-development and successfully gaining entitlements necessary for residential, senior housing and commercial projects. She holds experience both as legal counsel and as co-developer of real estate development projects. She was an owner and developer of senior cooperatives in Minnesota, with the LifeStyle Communities Group, promoting innovation and active living for all seniors. And, she brings all of this experience to the table at Raven Enterprise Group and RJP Development to enhance and support its services to consult and develop meaningful real estate development projects.

Kenneth f. on ContractsCounsel
View Kenneth
Member Since:
April 12, 2024

Kenneth f.

Lawyer
Free Consultation
Texas
4 Yrs Experience
Licensed in TX
St. Marys School of Law

Kenneth D. Ferguson is a distinguished attorney who earned his Juris Doctorate from St. Mary’s School of Law in May 2022. During his time at St. Mary’s, Kenneth displayed exceptional dedication and skill in the field of law, culminating in a historic achievement when his team secured victory in the first-ever National Mock Trial Championship for the university. This remarkable feat showcased Kenneth’s innate talent for advocacy and his unwavering commitment to excellence, earning him a well-deserved induction into the prestigious Order of the Barristers organization. Kenneth serves as a respected member of the Board of Directors for the Texas Young Lawyers Association, where he contributes his insights and expertise to the development of the legal community. Additionally, he holds the esteemed title of Fellow of the Texas Bar Foundation, a recognition of his outstanding contributions to the legal profession. Kenneth is also a valued member of the Texas Bar College, demonstrating his commitment to continuous learning and professional growth. Kenneth is licensed to practice law in a multitude of jurisdictions, including all Texas Courts, the U.S. District Court Northern District of Texas, the U.S. District Court Eastern District of Texas, and their respective Bankruptcy Divisions.

Find the best lawyer for your project

Browse Lawyers Now

Lawyer Reviews for OEM Purchase Agreement Projects

Smoke Shop Purchase Agreement

5.0
Lori B.

"No complaints, great service."

Florida
Urgent
Drafting
Purchase Agreement
ContractsCounsel User

E-commerce Purchase Agreement Review for Baby Products Business

5.0
Zachary J.

"Zach was very knowledgeable and efficient in creating our Asset Purchase Agreement! Would certainly recommend him!"

Texas
Review
Purchase Agreement
ContractsCounsel User

Limited-Scope Review of Temporary Refinance and Property Sale Agreement (Indiana)

5.0
Faryal A.

"Very receptive and kind. Made sure to think of every possible loop and made me aware of what my outcomes could be."

Indiana
Review
Purchase Agreement
ContractsCounsel User

Review Expiring Stock Purchase Agreement

5.0
Dolan W.

"Very clear recommendation with sequence of next steps and many concerns highlighted for me. Thanks!"

California
Review
Purchase Agreement
ContractsCounsel User

Purchase Agreement Review

5.0
William B.

"Will was excellent. He was clearly communicative and showed real urgency under deadlines, which I greatly appreciated. I absolutely would recommend Will for anyone seeking help with a purchase agreement contract."

California
Review
Purchase Agreement
ContractsCounsel User
Purchase Agreement
4.92
241 active lawyers

Quick, user friendly and one of the better ways I've come across to get ahold of lawyers willing to take new clients.

View Trustpilot Review

Need help with an OEM Purchase Agreement?

Create a free project posting
Draft Contract
Review Contract
Clients Rate Lawyers 4.9 Stars
based on 20,092 reviews
Business lawyers by top cities
See All Business Lawyers
OEM Purchase Agreement lawyers by city
See All OEM Purchase Agreement Lawyers

ContractsCounsel User

Recent Project:
Review Stock Purchase contract for business for buyer
Location: Florida
Turnaround: Less than a week
Service: Contract Review
Doc Type: Purchase Agreement
Page Count: 16
Number of Bids: 13
Bid Range: $350 - $5,000

ContractsCounsel User

Recent Project:
Contract Transaction for Purchase of Tree Company in New Jersey
Location: New Jersey
Turnaround: Less than a week
Service: Contract Review
Doc Type: Purchase Agreement
Number of Bids: 7
Bid Range: $650 - $2,200

Need help with an OEM Purchase Agreement?

Create a free project posting
Draft Contract
Review Contract
Clients Rate Lawyers 4.9 Stars
based on 20,092 reviews

Want to speak to someone?

Get in touch below and we will schedule a time to connect!

Request a call

Find lawyers and attorneys by city