Inside ODM contract service agreements

By Joseph Wei

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Following a successful original design manufacturer on-site visit and the decision to engage an ODM, the next step executives must think about is drafting the legal agreement(s). Typically, when working with an electronics manufacturing services (EMS) provider, OEMs only need to put in place a manufacturing service level agreement. (See, also: “Choosing providers: EMS or ODM” and “Manufacturing service level agreement“)

The process of drafting and reviewing contracts with an ODM is no different than the process with an EMS provider. However, extra time should be allotted to cover negotiations for ODM design and customization plus, other related matters. (See, also: 59 Questions for OEMs to ask ODMs)

For OEM executives choosing to take an ODM-designed product (to, essentially, customize it under the OEM’s own brand) ODM contract service agreements need to include some key points of interest and terminology that cover OEM product design changes; IP ownership, manufacturing rights…

For large ODM programs, it would be wise to also allocate additional time for decisions requiring executives from both ODM and OEM companies to personally meet and finalize arrangements agreed upon.

It is vital to have these executive relationships in place for when OEM programs deviate from standard practice (e.g., requesting overtime during Chinese New Year whereas many ODMs factories are located in China and observe a week-long holiday) having access to / relationships with the most senior ODM executives can make a big difference.

“Whether working with an EMS provider or ODM organization, the convergence for these two types of service providers over the last couple of years – with both expanding their core disciplines and capabilities, reveal several similar characteristics to aid OEMs to achieve total landed cost objectives”, says Larry Schiro, vice president of supply base management with McAfee (, a Silicon Valley-based provider of antivirus software and intrusion prevention system solutions.

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However, it is still imperative OEMs have the proper indemnification when working with an ODM since the final product will take on a substantial amount of original design by the ODM. Furthermore, IP laws differ from country to country and OEMs need to be aware of the laws in specific countries where its products will be sold to ensure the ODM has the proper IP protection in place for such countries. (See, also: “Liability and indemnity – contractual language” and “Foreign IP strategy for manufacturing executives“)

There are primarily four main segments included in either a single contractual agreement (or separate agreements) with an ODM:

  • Design and development
  • Manufacturing
  • Final product
  • Logistics and services
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ODM contractual terms in primary contract service agreements should be detailed but not product specific so that once agreement(s) are signed no further review will be required when product changes do occur over time. (Include product-specific details as attachments which can be reviewed separately.)

Contracting ODM design and development
Since the OEM’s product (finished goods inventory) will be based on the ODM’s design (and, most likely as each OEM will have his own modifications) OEMs need to pay extra attention to the development / engineering change process inside ODMs plus the IP assignment of finished products to avoid potential legal issues later on. Despite such challenges and risks, partnering with an ODM can expedite OEM supply chains and help drive costs down.

“OEMs must architect a supply chain design with their partners with full understating of all parties’ different, multi-polar strengths and always be adaptive to evolving changes”, adds Schiro. With this in mind, below are some key top-level items, or concerns, that should be on the minds of OEM executives and should be written into ODM contract agreements from a design and development perspective. Addressing each of these, and others listed in the paragraphs that follow, can be further emphasized in terms of emphasis within ODM contract agreement clauses and may include details such as frequency, actionable items, functional group stakeholders…

DM roadmap update transparency: This helps the ODM obtain and better understand the OEM’s future product requirements so the ODM’s roadmap can help minimize NRE (non-recurring engineering) charges to the OEM as time goes on.

Engineering design and review: This will help prevent any confusion or discrepancies that may arise between OEM and ODM engineering teams (or, at the least having something of this nature in place in contracts can help minimize the level of frequency of such occurrences).

Engineering change notifications (ECN) and engineering change orders (ECO): These two processes are put in place to clearly define ownership of the functions and between the ODM and OEM. (See, also: “Contract manufacturing risk mitigation and risk management“)

ODM ECO lead time: Cleary defining this process helps ensure the ODM implements OEM ECOs without delay while also meeting line-itemed OEM requirements when doing so. (See, also: “Product and component long lead time management reports“)

ODM supplier qualification process: For obvious concerns, OEMs have good reason to be interested in what takes place when the ODM qualifies a new component supplier or vendor. Transparency in this area will benefit all parties and help insure component or final product features; reliability, performance are not compromised. (See, also: “Electronics contract manufacturer supplier evaluation“)

Manufacturing and the ODM contractual agreement
Manufacturing with an ODM is very similar to working with an EMS provider. The following are some topic areas that require additional thought and clarification in ODM contract service agreements since components for the OEM product are often shared across a vast array of different customers served by the ODM, thus enabling the ODM to have flexibility in material planning and cost reductions. (See, also: “Supply chain management liability indicators and metrics“)

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