Professional Documents
Culture Documents
Finance Management of
Transaction and Projects
(Intermediate)
November 2019
Huawei Confidential 3
What should Account Manager be Responsible for?
BUSINESS
Owner
Building a
in Customer Interface church
planning, establishing, maintaining and promoting
the customer relationship & connection
Huawei Confidential 4
Common Operation Indicators
Period expense
Net sales income Long overdue AR
Expired Billed AR
TUP Expense
Capital cost of AR
Undue Billed AR Standard allocation expense
Contribution profit margin
Invoice amount
What
Invoiced andkind
Contribution profit margin
of operation
revenue ratio
Huawei Confidential 6
Managing a transaction from two dimensions: single project and
project group, to promote quality and efficiency simultaneously
Huawei Confidential 7
Contents
Huawei Confidential 8
When we discuss quality, what are we really talking
about… …
Do
things Match
right in the
one time standards
Zero
defect Fulfill
require
Lowest
cost ments
Huawei Confidential 9
What Is a High-Quality Contract?
Contract with reasonable profit, positive cash flow, controllable risks and customer satisfaction is
a high-quality contract.
High-quality Contract
• Contract quality is an end-to-end process of construction and operation,it should meet customer’s expectations;
• Contract quality should seek for balance between benefit-efficiency, risk-customer experience rather than signing a zero-
risk contract;
• Survival is the base line of contract quality, while contract quality should be the ‘fertile soil’ to drive growth and to
keep breeding high-quality contracts。
Huawei Confidential 10
The contract quality standards are built in the LTC process
LTC
Transaction
model Transaction planning Transaction model design Contract design Unify the contract quality standards:
Quality Criteria for Sales Contract
Transaction Clauses Negotiation Guide and Risk
Elements X transaction elements XX transaction elements XXX Transaction elements Authorization
are clear
Transaction elements: 6 elements (solution, transaction pricing, delivery, acceptance, collection, legal affairs) or three elements (pricing and commerce, delivery and
acceptance, payment and collection)
Scenario adaptation: Adapt processes based on different scenarios (such as services, software, and IT) and implement processes through scenarios.
Contract Scenario Expert: Support review and decision-making from the dimensions of solution, country, and customer.
Huawei Confidential 11
Impact of contract quality on operations
As of April 2019, 24 projects with a deviation of more than 1M USD; the total deviation is 267M USD. The related projects are
concentrated in the MS, TK, and software. The deviations are mainly caused by contract clauses, risks, assumption quality,
and performance capabilities.
Rep Amount
No. Project Name Industry Deviation Reason
office (DR2-DR1)
1. The SI workload is structurally changed.
1 Turkey Turkell MS&NRO Project MS&NRO -28.7 2. The exchange rate is devalued.
3. The solution assumption is unreasonable and the execution deviation is large.
1. Exchange rate depreciation
Vodafone MS&NRO
2 Turkey MS&NRO -20.33 2. Subcontracting price increase
Project
3. Delivery resource assumptions are not implemented.
3 Turkey JV U2 Project TK -17.1 Payment collection is severely delayed.
1. Assumption of personnel distribution cannot be achieved
Deutschla VDF Field Level 2. To improve KPI/SLA, work overtime /on call cost
4 Ms -116.75
nd Maintenance Project 3. The risks of DD variance (such as HR expenses) are not identified in a timely
manner and will be discussed during the transition period.
Tigo UNE Cable Rollout The number of cable maintenance work orders increases, resulting in subcontracting
5 Colombia MS&TK -14.99
& MS project costs.
Telefonica MSD FLM
6 Colombia Ms -10.31 Cost reduction assumptions, such as delivery integration, cannot be implemented
Project 2016
The swap strategy and spare parts solution are not implemented, and the
7 Italy Italy Fastweb MS project Ms - Fourteen. cooperation cost is severely overspent. HR release assumptions are not
implemented.
Saudi 1. New project expansion and integrated delivery of new projects are not achieved
8 Saudi STC TX MS project Ms -7.31
Arabia 2. Design defects cause insufficient evaluation of service cost and cost.
Deutschla Vodafone DE Saentis
9 TK -12.1 The business volume assumption changes.
nd project
AT FTTX Modernization
10 Algeria TK -14.51 The project delay leads to the increase of delivery cost and penalty.
Project Huawei Confidential 12
Case analysis(1): C&M Project of Customer T in Country G
60 15.00%
Background: Cable Rollout & MS project of Customer T in Country G is the first 12.40%
40 10.00%
corporate level MS project in Huawei with a large scale and complex network. 5.00%
20
Scope of work: Cable engineering/maintenance (5+1 years); Managed services 0.00%
0
for entire network (10+1 years). Total amount: 384M USD. ESTIMATION DR1 DR2 -5.00%
-20
-10.00%
People transfer: Transferred 605 employees, involving 8 labour unions and more
-40 -15.00%
-10.60%
than 40 welfare groups.
-60 -15.70%
-20.00%
Operations: Project continues to deteriorate, contribution gross profit in estimation is
CP CP RATIO
40M USD, DR1-32MUSD, DR2 -47MUSD
Huawei Confidential 15
Discussion
Free sharing
1. Question: Please share a case that meets the definition of high- quality contract
Huawei Confidential 16
Key Elements Affecting Project P&L During Pre-sales
P&L Project Solution Contract T&C Risks&Assumptions
Estimation P&L
1 List Price Product selection Volume discount Penalty
2 Proposed Price Model/Base price Voucher Assumption of BP
5 Other revenue-deducting Revenue
New business Model Price erosion
items ···
6 Net Sales Revenue ··· ···
7 Equipment Cost
8 Service Cost Outsourcing cost decreasing
Product selection Currency
10 Financial Cost Delivery solution
Cost Acceptance terms Co-Site delivery
11 Cost of Capital Responsibility Matrix Payment terms FX Inflation
12 Other Cost
··· ··· ···
13 Project Cost
14 Risk Contingency Risk
Responsibility unclear Tough acceptance
15.1 Gross Profit (After Risk Contingency
Contingency Promise beyond capability High penalty
Profit
18.1 Contribution Profit
(After Contingency)
Huawei Confidential 17
Example of Estimation P&L
Incentives:various preferential strategies offering to
Estimation P&L customer for specific market objectives, including
1 List Price 417,733,442 One-time Incentive, Volume based List Price
2 Proposed Price 186,179,498 Adjustment and Annual Price Erosion
3.1 Incentives 9,904,991
VAT and other deductible taxes
3.2 Issue Voucher : Relevant taxes and fees incurred in sales projects
Revenue 3.3 Use Voucher that should be borne by Huawei are in line with the
3.4 VAT and other deductible taxes "sales tax and additional" caliber in the accounting
4 Sales Taxes and Surcharges scheme, including sales tax, service tax, business tax
5 Other revenue-deducting items 14,234,866 and surtax 。
6 Net Sales Revenue 162,039,640
Quality Quality Criteria, Risk Analysis, and Negotiation Guidance for Sales Contract Clauses
standards
Huawei Confidential 19
The Structure of Sales Contract Risk Authorization
Prohibited
Risk
NO Decision-Making by SDT
Huawei Confidential 20
RAT6.0 Statistics :Contract Elements56 ,Quantitative Risks 37,
Qualitative Risks 298
Quatitative Risks :
Commercial &Legal Solutions Service & Delivery Finance
Voucher use Excessive commitment risk Delivery management Financing
Transfer of ownership Customization risks Supply and logistics Foreign Exchange
Risk transfer Assumptions Network integration service Letter of Gurantee
Integration/Network
Contract subcontracting Software integration service Credit
compatibility risks
Contract transfer Solution maturity risk Training Insurance
Transfer of creditor's rights Borderless liability risk Customer support service Payment
Exclusive supply Model and Base Price Managed Service Tax
Audit Voucher issuance CEM Service Inflation
Compliance with laws and
Cyber security risks Porcurement
regulations
Contract termination Qualitative Risks :
Fines Managed by Managed by
Significant High Medium Low Model/Bas
Liability Risk Level functional authority Total
Risk Risk Risk Risk e Price
lines departments
Compensatory clause Finance 5 36 33 19 18 0 111
Dispute resolution Commercial
0 15 27 19 3 4 68
Force majeure &Legal
Solution 0 2 1 0 8 4 45 60
Confidentiality clause
Service &
Others 4 18 9 5 23 0 59
Delivery
Total 9 71 70 43 52 8 45 298
Huawei Confidential 21
7 Prohibited Risks: Once Found, Stop Immediately; No Decision Makings
• Prohibited clauses are managed separately. SDTs at all levels have no right to make decisions on prohibited clauses. Once a prohibited clause is involved, the
operations must stop immediately.
• Functional element reviewers shall identify prohibited clauses in the respective domains. The Legal Affairs Dept exercises its right to veto prohibited risk clauses.
1. 1. Violate applicable export control laws and regulations of the United Nations (UN) and countries and regions such
as the USA, EU, and China, as well as Huawei's trade compliance policies and regulations – such as projects or Sell equipment that slightly exceeds specific standards to
Export control
products for military purposes, transaction subjects which are restricted products due to legal or supplier reasons, embargoed Countries.
and sales products for which the de minimis calculation result exceeds specific standards without permission.
2. Commit to developing sensitive functions which violate applicable laws and regulations or providing such functions in Provide surveillance and monitoring functions against local laws
Cyber security/Privacy protection
Huawei products for customers. and regulations.
3. Falsify or change transaction paths and falsify transaction content such as transaction entities, amount, and expenses
to achieve illegal purposes, including but not limited to:
Fictitious financial 3.1 Violate accounting laws, regulations, or standards, and help customers or third parties falsify financial records via Sign fake equipment sales or buy-back contracts to help
Fictitious records fictitious transactions or transaction elements. customers invent their cost or revenue increase.
transaction 3.2 Help customers or third parties illegally obtain financing or other financial benefits via fictitious transactions or Exaggerate the project amount to help customers obtain loans
Financial fraud
transaction elements. from financial institutions.
5. Violate applicable financial sanctions, anti-money laundering, and anti-terrorist financing laws and regulations of the Receive payments from a customer when knowing or
Financial compliance UN, EU, China, the US and other countries and regions. Violate mandatory laws and regulations stipulated by central suspecting that its money is gained through crimes (smuggling,
banks and foreign exchange management institutions in the involved countries. drug deals, etc)
6. Violate the International Air Transport Association (IATA) regulations, and make commitments to air transport of Promise to transport hazardous chemicals or large-capacity
Public security
unexempted dangerous goods. lithium batteries (> 100 WH) by air.
7. Other sales contract clauses which violate legal requirements and may bring significant legal risks to Huawei.
Document Link:http://w3.huawei.com/info/cn/doc/viewDoc.do?did=7788671&cata=403651
Huawei Confidential 22
9 Significant Risk Items
Functional
No. Domain Risk Point Risk Item
Department
1 Finance Financing Financing purpose Huawei directly provides equity financing, cash financing, or license financing to the customer.
Huawei provides guarantee to the customer's creditor (in (group) projects where the transaction
Provision of
2 Finance Financing counterparty's credit rating is Level D/E/SPM/X or the risk sharing percentage of Huawei is more
financing guarantee
than 20%).
The L/G template contains an amount exposure (including but not limited to rechargeable amount
3 Finance L/G L/G
and compensation claims without an upper limit).
The L/G can be transferred to a third party that does not directly trade with Huawei without
4 Finance L/G L/G
Huawei's permission.
The L/G is issued for a third party that does not directly trade with Huawei or the beneficiary of
5 Finance L/G L/G
the L/G is a third party that does not directly trade with Huawei.
Signing entity of site
Network Huawei is responsible for site acquisition, ROW acquisition, and power connection. Furthermore,
acquisition, ROW
6 Service delivery integration the customer requires Huawei to sign a land/house purchase contract with the proprietor and bear
acquisition, and
service related costs.
power connection
Managed Make commitments in the MS contracts that Huawei will buy network assets back from operator
7 Service delivery Asset Buy-Back
Service and be responsible for the maintenance, operation, and update of the assets.
Managed Huawei directly takes over 100 or more maintenance employees from the customer or the existing
8 Service delivery People transfer risk
Service MSP.
Scenario 1: Bearing fuel fees in non-GCC6 countries and electricity fees in all countries,
including but not limited to:
Managed Bearing fuel and · Bearing fuel/electricity fees, and specifying the total amount;
9 Service delivery
Service electricity fees · Specifying the fuel and electricity expense baseline in the contract regardless of whether a price
adjustment mechanism is available
Huawei Confidential 23
Contents
Huawei Confidential 24
What is fulfillment quality?
Contract fulfillment is the fulfillment of the obligations and rights promised by both parties in the contract;
the achievement of the contract targets and benefits through the implementation of the plan.
How to measure
performance quality?
Cost/efficiency deviation Risk and Assumption deviation Quality & Progress deviation
Huawei Confidential 25
Cost deviation: In the past three years, 140 projects suffered losses,
and the accumulated loss amount was 1.1 billion.
• From 2016 to 2019 H1, there are 140 projects of CNBG whose contribution profit loss exceeded 1 million.
• Regions with a large amount of loss projectsare mainly in Latin America, China, Middle East, CEE Nordic Europe, and West Europe.
Huawei Confidential 26
Progress and quality deviation: In the past three years, the contract
penalty was 201M, focusing on the wireless, software, and MS
The Carrier BG‘s contract penalty in the last three years is 201MUSD, accounting for 0.17% of the revenue.
The penalty is mainly distributed in wireless, software, and MS projects.
The reasons for the penalty are as follows: Delivery delay (81.74MUSD, accounting for 40% of the revenue),
KPI/SLA (43.27MUSD, accounting for 22%)
Penalty analysis by reason
40 33.71
25.14 22.19
20 7.47 6.65
0.63 4.23 4.34 0.3 0.48 0.13 0.14 0.04 1.19 0.67 0.27
0
EHS KPI/SLA不达标
KPI/SLA 产品质量
Product Quality 工程质量
Delivery Quality 交付延迟
Delivery Delay 网络事故
Network Accident 物料丢失
Loss of materials 物流延迟
Huawei Confidential 27
Risks and assumptions deviation: TOP10 Project deviation leads to
US$ 240 million budget deterioration
In the Carrier BG's TOP 10 project, the budget was reduced by US$
240 million because assumptions were not implemented and risks
were not effectively controlled. Case: Millicom Colombia Project contains FLM services of mobile and fixed
networks. The period is 5 years (from April 2016 to December 2020), the
Project Key deterioration cause
amount is 30M USD, and the project life cycle loss is 10M+;. The major
- Assumptions are not implemented: The high gross profit and sporadic
engineering workload decrease, and the delivery resources are not reduced assumptions problems are as follows:
Turkey Vodafone MS NRO
Project as expected.
- Risk is not effectively controlled: There is no effective risk control External assumptions are not entered into the contract:
mechanism for the decrease in subcontracting or exchange rate.
• The quotation is based on the information provided by the customer
- Assumptions are not implemented: The transfer of receiving personnel is
Vodafone Germany Field
Level Maintenance Project not implemented. (11,000 km in aerial scenarios and 200,000 m in trenching scenarios).
- Risk is not effectively controlled: KPI penalty 26MEUR
• Actual execution: Aerial 15,000 km, the actual cost is 6838/m (HFC),
- Assumptions are not implemented: Project scale reduction)
Turkey JV Universal Phase 2
TK Project - Risk is not effectively controlled: Payment delay causes capital occupation and the cost increases by 4 million. Civil work: 22,000 meters, the
to erode profits.
actual cost is 134912/m, and the profit is reduced by 10 million.
- Assumptions are not implemented: Project scale reduction
AT FTTX Modernization - Risk is not effectively controlled: The project duration is delayed, resulting
Project in cost increase and penalty accrual. As a result, the cash collection is Internal assumptions are not effectively managed:
delayed and the profit is eroded.
- Assumptions are not implemented: Manpower is not released on schedule. Cable maintenance estimation assumptions deviation, for example: TT
Honduras Millicom E2E
Managed Service Project - Risk is not effectively controlled: There is no effective risk control
forecast 4000 tickets/month, actual 10000 tickets/month; In the estimation,
mechanism for subcontracting gains.
Italy TI OCS project
- Risk is not effectively controlled: The project duration is prolonged, which 294 people are considered for self-delivery. Actually, 625 subcontracting
increases the cost.
personnel are required.
- Assumptions are not implemented: Project scale reduction
Cell C IP & Core Project
2018 - Risk is not effectively controlled: The project duration is prolonged, which OSP personnel reuse assumptions are radical: In the estimation, it is
increases the cost.
- Assumptions are not implemented: Manpower is not released on schedule.
assumed that the transferred personnel undertake 91 OSP design work
Colombia TigoUne Services
Unified Managed - Risk is not effectively controlled: There is no effective risk control without subcontracting cost. This assumption is not realized in practice.
mechanism for subcontracting gains.
Huawei Confidential 28
The key domains to fulfillment quality management is project time
(progress), project cost, and project risk/assumption deviation
management
Project
integration
Project management
Stakeholder Project scope
Management management
Project
Project time
procurement
management
management Ten Knowledge
Domains of
Project
Management
Project risk Project cost
management management
Project Project
communication quality
Project management
management
Human
Resource
Management
Huawei Confidential 29
Progress Management: Continuously Improve Fulfillment Quality through
Promoting Delivery Ability and Manage Customer transaction operation
Contract
signing Shipment Installation PAC Billing Collection
Huawei Confidential 30
Case:Shorten ITO&DSO through optimizing transaction condition and
improving delivery efficiency
Customer background:the biggest carrier in S country,stable financial conditions, adequate cash flow, 8 years of good cooperation
experience with Huawei.
Macro environment:its local currency has been depreciating since the beginning of the year with an average speed of 6%;Standard
Chartered, Citigroup and other banks forecasted it has reached a high exchange rate and the currency appreciation would not be
sustainable.
Customer analysis: Customer forecast of exchange rate trend is the same with those banks ; the financial departments have to
reduce exchange rate losses and customers have adequate cash flows.
Improve ITO+DSO to be 148 days, Improvement of supply efficiency
Former payment terms Increase contribution margin ratio 4.7% 1、 Reduced connection time and
optimized international logistics
Equipment:50%POD 25%PAC 25%FAC cycle 45 days37 days
Service: 50%PAC 50%FAC 2、Optimized process, optimized
customs clearance cycle 19 days9
Credit term:45 days days
3、optimized plan,increased the
turnover speed of central
warehouse 22 days7 days
Optimization from PO level
Improvement of delivery efficiency
equipment,service 100% prepayment; 4、improve site acceptance cycle
Credit term:30 days from 12 days 5 days
Applied systems to monitor the goods arrival,
installation, and acceptance status. Optimized the
Based on adequate cash flow, Huawei seized the opportunity of understanding subcontracting contract and specified the in-transit and
in-construct periods. Changed the whole acceptance to
customer's financial concerns to improve efficiency by early payment acceptance by DU. Coordinated resources through
systems and made system data visible, to minimize the
waiting time of personnel and goods.
Huawei Confidential 31
End-to-end risk and assumption management to mitigate uncertainty
• Assumptions are the prerequisite for solution. Risks are generated with Assumption management:
solution. Both are part of the solution. What is irrelevant to the contract scope, such as the future
• There is Conversion between assumptions and risks: Assumptions and outlook and commitment, cannot be used as a project
risks appear in pairs. If the assumption is not achieved, it becomes a assumption and not included in the project estimation. It
can only be used as a reference for decision-making.
risk, which affects the project financial results.
The customer interface assumptions should be
implemented in the bid submission/contract (such as the
Very uncertain Risk project scope, responsibility matrix, and solution dependency).
1. …
2. … Qualitative Internal assumptions should be generated based on
… &
Operation
baselines/experience and managed in a closed-loop manner.
3.
Results
Quantification
Mutually
convert Risk management:
Assumption
Uncertain factors Risks are classified into qualitative and quantitative risks.
Huawei Confidential 32
Case (Pakistan V8 Project): Irrational Assumptions in the Bidding Phase Failed
to Be Realized in the Delivery Phase
Project background
• In May 2016, the contract for the Safe City V8 project (as a benchmark) in Pakistan was signed. The chief minister of Punjab (a state in NW
India) took charge of this project.
• The project valued US$120 million, covering 8 outsourced sub-systems, 25 software application systems, interconnection of 20+ internal and
external systems, and 20 control rooms. The solution was complex and difficult to deliver.
• After the delivery was initiated in July, major deviations occurred between the actual project financial performance and the project
estimation/budget, and the project operation result severely deteriorated.
Project progress
Huawei Confidential 33
Discussion
Free sharing
Huawei Confidential 34
Key Elements Affecting Project P&L During Delivery
P&L Cost deviation Progress deviation Risk & Assumption deviation
Huawei Confidential 35
WHAT CAN YOU DO
for improving
operation quality
during transaction
with customer?
Huawei Confidential 36
Contents
Huawei Confidential 37
How Much do You Know about BCM?
• EL Entity List
• TGL Temporary General License
• ECCN Export Control Classification Number
• De Minimis Level
Huawei Confidential 38
BCM Contract T&Cs Requirements increased sharply since EL event
on May 16th
Customer’s requests related to BCM contract T&Cs had increased sharply after May 16th, and has stabilized since middle
of July(W9), currently the main focus is on handling penalty disputes and contract amendments in this stage.
BCM requirements trend during last 15 weeks since May 16th BCM requirements in each region since May 16th
Huawei Confidential 39
Scenario 1:
Supply Continuity/Trade Compliance
Commitments
Huawei Confidential 40
Typical Customer Requests
A B C D
…customer to …certifies and Huawei shall not do or Provide the ECCN or US-origin
suspend or represents US- omit to do anything content percentage and the
terminate the origin content might cause C to breach calculation method
contract if Huawei contained subject any US Trade Controls Confirm if EL Huawei participated in
materially breaches to EAR. Laws. the supply chain
its delivery B is entitled to verify provide confirmation Specify whether any products
obligations to the or audit the on compliance with ordered may experience delayed
fact that Huawei compliance of such US Trade Controls deliveries or reduced availability
becoming listed certifications and Laws on delivery Confirm none of employees working
on any restricted representations. documentation for every in customer space are employed by
parties list. Order. EL Huawei
Huawei Confidential 42
Mitigation Strategy (2/2)
Reply Strategies To Customers: positive answer, reply in time, avoid increasing clients’ doubts.
Pay special attention to two scenario:
1. Customer with US background: give positive answers, reply ASAP, to avoid turning the problem into passive situation. e.g.: After
receiving a letter from the lawyer of CUSTOMER for two weeks, frontline finally escalates to HQ to review the reply, which caused the
client to send three letters afterwards expressing doubt about Huawei's supply continuity and compliance ability.
2. Overreacting Clients: customer exaggerated the current risk and talks about EL as Denied Persons List (DPL) or Specially Designated
Nationals (SDN). The legal department should directly intervene at the beginning to pull the customer back.
Currently, 4 clients groups have requested to add relevant terms to mitigate DPL/SDN scenario risk. e.g.: CUSTOMER A
requires that if supplier was unable to collect payment due to financial sanctions, supplier should continue to fulfill the
contract for the next 60 months.
Huawei Confidential 43
Scenario 2:
Additional Penalty /
More Restrictions on Compensation Clauses
Huawei Confidential 44
Typical Customer Requests
E F G
…in E’s sole discretion to In case there will be any regulatory HW is to provide Performance
terminate the Agreement if HW is ban to use HW equipment by EU Guarantee equal to 100% of
likely to violate laws or within one year from the signing date Contract amount.
regulations or it becomes illegal of the Agreement, HW shall be No prepayment paid by
or unlawful for HW to perform responsible to return the money F Customer.
Agreement. has paid for the equipment that has
HW shall remain liable to E for any been delivered before the regulatory
direct or indirect damages ban, and dismantle the equipment
without cap of limitation of liability. installed and send them back at HW’s
own cost .
Huawei Confidential 46
Scenario 3:
Penalty dispute in existing projects
Huawei Confidential 47
Typical Customer Requests
H J
The customer sent a Lawyer's letter to Huawei, If there is no substitute solution for supply of XX product (cable)
indicating that the delay supply of the STB and CPE by HW due to HW’s incapability of continual supply, then HW
have caused a loss of XX M Euros to the customer, is to accept a high risk of penalty in accordance with contract.
and asked Huawei should respond. The customer requires HW to provide a formal written reply in
The customer sent a Lawyer's letter again to reply term of the cable supply.
HW’s letter, stating that "unforeseeable" was not HW must find a third party to continue to perform the contract if
established, and Huawei's delivery delay was due to HW cannot continue its performance. In addition, the third-party
quality issues rather than the Google Android performance shall not increase the customer's cost, and HW
certificate issue of the STB. Customer’s letters bears joint and several liability to the third party and HW cannot
suggest that XX M Euros have been lost. be exempted from the contract.
Risks of penalty imposed by Customer on HW for the fact not attributable to HW.
Huawei Confidential 48
Mitigation Strategy
Typical Actions from Customer Mitigation Principles and Suggestions
Huawei Confidential 49
Scenario 4:
Force Majeure
Huawei Confidential 50
Definition of Force Majeure
Definition from FIDIC:
"Force Majeure" means an exceptional event or circumstance:
(a) which is beyond a Party’s control,
(b) which such Party could not reasonably have provided against before entering into the Contract,
(c) which, having arisen, such Party could not reasonably have avoided or overcome, and
(d) which is not substantially attributable to the other Party.
Common Scenario: war, strike, riot, crime, or an event described by the legal term act of God (hurricane, flood, earthquake,
Huawei Confidential 51
Typical Customer Requests
K L
The Parties agree that none of the following shall be In the event that a governmental body and/or supervisory
considered a Force Majeure Event: authority communicates or issues a law, ban,
a. A breach by Huawei of the provision of the Sanctions recommendation, objection, advice, instruction, (export)
and Export Controls Clause 4.5 above; and/or restriction, decision or (indirect) conditions (including but
b. the consequences of such breach; and/or not limited to auction rules) or any other communication
c. if the Supplier (or any person(s) who controls such demonstrated by CUSTOMER, which might affect the
Supplier) becomes listed on any applicable restricted subject matter of this Contract and/or might reflect
parties list (including, without limitation, the US/OFAC negatively on CUSTOMER or its customers; this at
and the UK/HMT Consolidated SDN lists). CUSTOMER’s sole discretion, Termination for
convenience according to this sub-article does not
constitute a force majeure event..
Huawei have no chance to argue with customer about claims, and will undertake all liability of
contract breach due to sanction, in despite that sanction is beyond Huawei’s control.
Huawei Confidential 52
Mitigation Strategy
Amongst more than 10K existing contracts:
• 96% of the contracts do not explicitly mention sanctions, so it is not clear whether sanctions belong to force majeure.
• 3.8% of the contracts specify that sanctions belong to force majeure.
• Only 10+ contracts specify that sanctions not belong to force majeure.
Typical Requirements from Customer Mitigation Principles and Suggestions
Huawei Confidential 53
Case: HW use Force Majeure to exempt its Liability
Huawei Side Customer Side
Background:
AR129,HG659 could not be supplied after 05/16. Huawei • Huawei send force majeure notification to
(Australia) made decision to proactively communicate with customer to execute the notice obligation under
Customer in respect of that matter to avoid subsequent risks after
the contract and specify that Huawei shall be
evaluation.
exempted from the responsibility and liability
Analysis:
according to the contract in connection with US
• Force majeure clauses in the contract support the point
Sanction as a matter of force majeure.
that sanction belongs to matters beyond both parties’
• Provide necessary support to find alternative
control.
solution for customer.
• No deep cooperation with customer and Huawei’s small
• Cancel undelivered PO via Contract Change
market share won’t affect customer business.
Risks to HW
Agreement.
• Easy to procure alternative products from other vendors.
Huawei Confidential 54
Scenario 5:
Contract Change
Huawei Confidential 55
Contract Change Strategy
Contract Change is required as a result of solution change that is necessary due to supply chain restrictions under EL status,
which involves written communication regarding delays, replacement, and/or termination.
• Strategy: After customer accepts our new solution, we should initiate the contract amendment or obtain written confirmation ASAP, so
that we can start shipment ASAP to avoid penalty risks.
Need to do:
• Archive the meeting minutes, email, and other communications with the Customer as evidence.
• Promptly obtain formal agreement to support the contract amendment so that we are exempt of liability for breach of contract.
• If formal agreement cannot be obtained in time, only after obtaining internal decision, shipment can be started. But risk management must be performed and
form a closed loop.
Do not do:
• If the solution during bidding cannot be supplied and HW continue and sign the contract first without informing the customer and then make contract
amendment (which means signing directly leads to a breach). e.g : CUSTOMER XX NGN frame contract needs to be renewed. In the decision-making
stage the SDT identified E9000 supply risk and decided to stop the signing process. The account department communicated with customer again, customer
accepted the alternative solution and finally signed the contract.
• Implement shipment which bypasses Huawei entity (contained within the EL) via changing the transaction path (compliance risk).
Huawei Confidential 56
Contract risk changes under BCM situation, historical
clauses shall not be inherited directly
Under current BCM situation, same clause would become different meaning. Some risks are enlarged, other risks become advantageous.
Therefore, no matter new contract, renewed contract, or contract amendment shall be reviewed completely but not directly inheriting historical
clauses.