Dell-Adaptec Master Purchase Agreement (MPA) : Questions for Thurs. Feb. 9, 2012

Dell-Adaptec Master Purchase Agreement (MPA): Questions for Thurs. Feb. 9, 2012

For each question below, state also the relevant section(s) of the MPA.

Who pays shipping costs for Products sold to Dell?

Where in the MPA is the price of a particular Product stated?

Is this Agreement enforceable when signed? Why or why not? If not, what would it take for this Agreement to be enforceable?

When are Dell's payments due?

Sections 3.2 and 4.1 have one bad drafting characteristic in common. What is it?

Section 4.1: What does "net 30 days" mean? [Hint: Google-search the term.]

Section 5: To what address is Supplier to ship Products?

Section 5: What is the extent of Supplier's obligation to meet scheduled delivery dates?

Section 5.2: How (if at all) can a court determine the quantities of Products that Supplier is obligated to ship to Dell?

Section 5.2.1, first sentence: What does "commercially reasonable efforts" mean? (Hint: See the definitions of reasonable efforts and best efforts in the draft Contract Review Guide that I emailed to you.)

Section 5.2.1, last sentence: Why does Dell care where Products are manufactured?

Section 5.2.2– packaging and labeling: Why does the last sentence say that upon request, Dell will provide a copy of its packaging and labeling requirements? (Hint: As a matter of day-to-day management attention, who has to make sure Supplier has a copy of the requirements? From a business perspective, why might that matter?)

Section 5.2.3– testing and acceptance: What is Dell's strategic business motivation for this subsection? (Hint: Think about the "brand value" of Dell's reputation with customers.)

Section 5.2.6– expenses in anticipation of Dell's requirements: Why did the drafter bother to include this provision? (Hint: Why do British contract drafters often use the phrase, "For the avoidance of doubt"?)

Section 5.3.1 – SLC locations: What is the business reason for including this provision? How might that affect Supplier's pricing? (Hint: See the Wikipedia entry on Just-in-Time Inventory, especially the section on Vendor-Managed Inventory).

Section 9.0 - warranties: What (if any) is/are the major difference(s) between a representation and awarranty? Why does this section use both? Would Supplier have any reason to object to using both? Which would Supplier prefer? (Hint: See Stark §§9.2, 9.4; see also the blog posting at http://goo.gl/hiwkX and http://goo.gl/tSZOp.)