Common use of Termination of Exclusivity Clause in Contracts

Termination of Exclusivity. (a) The exclusive distribution and supply obligations described in Section 4.01 and Section 4.02 and the right of first offer described in Article X shall terminate and be of no further force and effect (i) if Seller and its Affiliates cease to maintain commercial production of, or sufficient inventory of, or the necessary capacity, machinery, personnel and resources to manufacture, TM2500s, for a period of 180 days or more; provided, however, that, if such cessation is the result of a Force Majeure that does not persist for longer than 180 days after such initial 180-day period, then such cessation shall not trigger the termination of such exclusive distribution and supply obligations under this Section 4.03, (ii) if Seller and its Affiliates fail to deliver Surplus TM2500s within sixty (60) days of the delivery date set forth in the PO pursuant to this Agreement and the Seller Standard Terms (including, without limiting the generality of the foregoing, the product quality criteria set forth on Schedule 7.04) in accordance with two or more POs during any one-year period; provided, however, that, if such failure is the result of a Force Majeure that does not persist for longer than 180 days, then such failure shall not trigger the termination of such exclusive distribution and supply obligations under this ‎Section 4.03 or (iii) as set forth in Section 4.03(b). Any termination of the exclusivity obligations described in Section 4.01 and Section 4.02 pursuant to this Section 4.03(a) shall not automatically terminate this Agreement or any other obligations hereunder. (b) Buyer has provided to Seller, as of the date hereof, a good faith, non-binding forecast (including reasonable substantiation) of the number of TM2500s that it expects to order pursuant to POs hereunder during the 12 month period beginning on the date hereof. On or before every six month anniversary of the date of this Agreement, Buyer shall provide a good faith, non-binding forecast of the number of TM2500s that it expects to order pursuant to POs hereunder during the six month period beginning on the next succeeding six month anniversary (e.g., on the six month anniversary of this Agreement, the forecast shall cover the six month period from the 12 month anniversary of this Agreement until the 18 month anniversary of this Agreement) (each such good faith, non-binding forecast, an “Exclusivity Forecast,” and any TM2500s expected to be ordered pursuant to any Exclusivity Forecast, “Forecasted TM2500s”). Nothing hereunder shall obligate Buyer to deliver POs for all of the Forecasted TM2500s during any particular six month period nor prohibit Buyer from delivering POs for more TM2500s than the Forecasted TM2500s during any particular six month period (any such excess TM2500s ordered, the “Surplus TM2500s”). The exclusive supply obligations described in Section 4.02 and the right of first offer described in Article X shall terminate and be of no further force and effect if Seller and its Affiliates at any time (i) reject a PO (or any applicable portion thereof) that relates to Forecasted TM2500s and that complies with the terms of this Agreement and the Seller Standard Terms, in each case, without modification (or with modification only following agreement by Seller in respect of such PO) or (ii) is unable or unwilling to promptly (and in any event within fourteen days) deliver any Forecasted TM2500s ordered pursuant to any such compliant PO on the basis of the pricing set forth on Appendix 2 and the terms and conditions of sale set forth in this Agreement and the Seller Standard Terms. This Section 4.03(b) pertains only to Forecasted TM2500s and is inapposite with respect to Surplus TM2500s, breaches or defaults with respect to which are subject to Section 4.03(a)(ii). (c) Seller has provided to Buyer, as of the date hereof, a good faith estimate of the number of TM2500s that it currently has in inventory and are available for sale to Buyer. On or before every six month anniversary of the date of this Agreement, Seller shall provide to Buyer an updated good faith estimate of the number of TM2500s that it has in inventory, including the serial numbers and the bulletin implementation status of each such TM2500 in inventory, as of such time and are available for sale to Buyer. (d) Promptly upon any termination of the exclusive supply obligations described in Section 4.02 and right of first offer described in Article X pursuant to Section 4.03(b), the Parties will cooperate in good faith to enter into a new supply agreement (or amend this Agreement) that includes pricing, exclusivity and other terms and conditions that are reasonable for both Parties; provided, however, that this Section 4.03(d) shall not be deemed a firm commitment by either Party to enter into any such new (or amended) agreement. If the Parties are unable to agree on and enter into any such new (or amended) agreement within 60 days of commencing such good faith cooperation, this Agreement shall terminate.

Termination of Exclusivity. (a) The exclusive distribution and supply obligations described In the event that Creative does not authorize, or, if authorized, is unwilling to accept, delivery of the shipment of CSW Multimedia Products in Section 4.01 and Section 4.02 and the right of first offer described in Article X shall terminate and be of no further force and effect following aggregate amounts (each a "REQUIRED AMOUNT"): (i) if Seller and its Affiliates cease to maintain commercial production at least * of CSW Multimedia Products (excluding CSW Two-Piece Products as defined in Section 10.4(b)) in the first twelve-month period (the "FIRST PERIOD") following the later of, or sufficient inventory of, or : (a) the necessary capacity, machinery, personnel and resources to manufacture, TM2500s, for a period of 180 days or more; provided, however, that, if such cessation is the result of a Force Majeure that does not persist for longer than 180 date 60 days after CSW is able to ship a final finished production unit of PCWorks-TM- whether or not Creative has issued a purchase order for such initial 180-day period, then such cessation shall not trigger product; or (b) the termination date of such exclusive distribution and supply obligations under this Section 4.03delivery to Creative by CSW of the * (the "INITIAL SHIPMENT DATE"), (ii) if Seller and its Affiliates fail to deliver Surplus TM2500s within sixty * of CSW Multimedia Products (60excluding CSW Two-Piece Products) days in the second twelve-month period following the expiration of the delivery date set forth First Period (the "SECOND PERIOD"), and (iii) * of CSW Multimedia Products (excluding CSW Two-Piece Products) in the PO third twelve-month period following the expiration of the Second Period (the "THIRD PERIOD," with each of the First Period, Second Period and Third Period being a "PERIOD"), the rights and licenses granted pursuant to Section 2.1 shall become nonexclusive for the remainder of the term of this Agreement beginning * following the end of the Period for which Creative has failed to meet such requirements. Notwithstanding the foregoing, if the aggregate amount of CSW Multimedia Products Creative authorizes or accepts delivery of in the First or Second Period is between * of the Required Amount for such Period, the rights and licenses granted pursuant to Section 2.1 shall remain exclusive if Creative, within * following the end of such Period, issues Creative Purchase Orders for an aggregate amount of CSW Multimedia Products equal to at least * of the Required Amount for the following Period (such Creative Purchase Orders shall be counted in determining whether Creative has satisfied the Required Amount for such following Period); PROVIDED, HOWEVER, that exclusivity may be maintained by Creative pursuant to the foregoing clause * during the term of this Agreement. The parties acknowledge that Creative shall not lose its exclusivity pursuant to this Agreement and section in the Seller Standard Terms (including, without limiting the generality of the foregoing, the product quality criteria set forth on Schedule 7.04) event that CSW fails to ship CSW Multimedia Products in accordance with two or more POs during any one-year period; provided, however, that, if such failure is the result of a Force Majeure that does not persist for longer than 180 days, then such failure shall not trigger the termination of such exclusive distribution and supply obligations under this ‎Section 4.03 or (iii) as set forth in Section 4.03(b). Any termination of the exclusivity obligations described in Section 4.01 and Section 4.02 pursuant to this Section 4.03(a) shall not automatically terminate this Agreement or any other obligations hereundertimely fashion. (b) Buyer has provided In the event that Creative does not authorize, or, if authorized, is unwilling to Selleraccept, as delivery of the date hereof, a good faith, non-binding forecast (including reasonable substantiation) shipment of the number of TM2500s that it expects to order pursuant to POs hereunder during CSW Multimedia Products in the 12 month period beginning on the date hereof. On or before every six month anniversary of the date of this Agreement, Buyer shall provide a good faith, non-binding forecast of the number of TM2500s that it expects to order pursuant to POs hereunder during the six month period beginning on the next succeeding six month anniversary (e.g., on the six month anniversary of this Agreement, the forecast shall cover the six month period from the 12 month anniversary of this Agreement until the 18 month anniversary of this Agreement) following aggregate amounts (each such good faith, non-binding forecast, an “Exclusivity Forecast,” and any TM2500s expected to be ordered pursuant to any Exclusivity Forecast, “Forecasted TM2500s”). Nothing hereunder shall obligate Buyer to deliver POs for all a "TOTAL REQUIRED AMOUNT"): (a) at least * of the Forecasted TM2500s during any particular six month period nor prohibit Buyer from delivering POs for more TM2500s than the Forecasted TM2500s during any particular six month period (any such excess TM2500s ordered, the “Surplus TM2500s”). The exclusive supply obligations described CSW Multimedia Products in Section 4.02 and the right of first offer described in Article X shall terminate and be of no further force and effect if Seller and its Affiliates at any time (i) reject a PO (or any applicable portion thereof) that relates to Forecasted TM2500s and that complies with the terms of this Agreement and the Seller Standard Terms, in each case, without modification (or with modification only following agreement by Seller in respect of such PO) or (ii) is unable or unwilling to promptly (and in any event within fourteen days) deliver any Forecasted TM2500s ordered pursuant to any such compliant PO on the basis of the pricing set forth on Appendix 2 and the terms and conditions of sale set forth in this Agreement and the Seller Standard Terms. This Section 4.03(b) pertains only to Forecasted TM2500s and is inapposite with respect to Surplus TM2500s, breaches or defaults with respect to which are subject to Section 4.03(a)(ii). (c) Seller has provided to Buyer, as of the date hereof, a good faith estimate of the number of TM2500s that it currently has in inventory and are available for sale to Buyer. On or before every six month anniversary of the date of this Agreement, Seller shall provide to Buyer an updated good faith estimate of the number of TM2500s that it has in inventory, including the serial numbers and the bulletin implementation status of each such TM2500 in inventory, as of such time and are available for sale to Buyer. (d) Promptly upon any termination of the exclusive supply obligations described in Section 4.02 and right of first offer described in Article X pursuant to Section 4.03(b), the Parties will cooperate in good faith to enter into a new supply agreement (or amend this Agreement) that includes pricing, exclusivity and other terms and conditions that are reasonable for both Parties; provided, however, that this Section 4.03(d) shall not be deemed a firm commitment by either Party to enter into any such new (or amended) agreement. If the Parties are unable to agree on and enter into any such new (or amended) agreement within 60 days of commencing such good faith cooperation, this Agreement shall terminate.the

Termination of Exclusivity. (a) The exclusive distribution and supply obligations described In the event that Creative does not authorize, or, if authorized, is unwilling to accept, delivery of the shipment of CSW Multimedia Products in Section 4.01 and Section 4.02 and the right of first offer described in Article X shall terminate and be of no further force and effect following aggregate amounts (each a "REQUIRED AMOUNT"): (i) if Seller and its Affiliates cease to maintain commercial production at least * of CSW Multimedia Products (excluding CSW Two-Piece Products as defined in Section 10.4(b)) in the first twelve-month period (the "FIRST PERIOD") following the later of, or sufficient inventory of, or : (a) the necessary capacity, machinery, personnel and resources to manufacture, TM2500s, for a period of 180 days or more; provided, however, that, if such cessation is the result of a Force Majeure that does not persist for longer than 180 date 60 days after CSW is able to ship a final finished production unit of PCWorks-TM- whether or not Creative has issued a purchase order for such initial 180-day period, then such cessation shall not trigger product; or (b) the termination date of such exclusive distribution and supply obligations under this Section 4.03delivery to Creative by CSW of the * (the "INITIAL SHIPMENT DATE"), (ii) if Seller and its Affiliates fail to deliver Surplus TM2500s within sixty * of CSW Multimedia Products (60excluding CSW Two-Piece Products) days in the second twelve-month period following the expiration of the delivery date set forth First Period (the "SECOND PERIOD"), and (iii) * of CSW Multimedia Products (excluding CSW Two-Piece Products) in the PO third twelve-month period following the expiration of the Second Period (the "THIRD PERIOD," with each of the First Period, Second Period and Third Period being a "PERIOD"), the rights and licenses granted pursuant to Section 2.1 shall become nonexclusive for the remainder of the term of this Agreement beginning * following the end of the Period for which Creative has failed to meet such requirements. Notwithstanding the foregoing, if the aggregate amount of CSW Multimedia Products Creative authorizes or accepts delivery of in the First or Second Period is between * of the Required Amount for such Period, the rights and licenses granted pursuant to Section 2.1 shall remain exclusive if Creative, within * following the end of such Period, issues Creative Purchase Orders for an aggregate amount of CSW Multimedia Products equal to at least * of the Required Amount for the following Period (such Creative Purchase Orders shall be counted in determining whether Creative has satisfied the Required Amount for such following Period); PROVIDED, HOWEVER, that exclusivity may be maintained by Creative pursuant to the foregoing clause * during the term of this Agreement. The parties acknowledge that Creative shall not lose its exclusivity pursuant to this Agreement and section in the Seller Standard Terms (including, without limiting the generality of the foregoing, the product quality criteria set forth on Schedule 7.04) event that CSW fails to ship CSW Multimedia Products in accordance with two or more POs during any one-year period; provided, however, that, if such failure is the result of a Force Majeure that does not persist for longer than 180 days, then such failure shall not trigger the termination of such exclusive distribution and supply obligations under this ‎Section 4.03 or (iii) as set forth in Section 4.03(b). Any termination of the exclusivity obligations described in Section 4.01 and Section 4.02 pursuant to this Section 4.03(a) shall not automatically terminate this Agreement or any other obligations hereundertimely fashion. (b) Buyer has provided In the event that Creative does not authorize, or, if authorized, is unwilling to Selleraccept, as delivery of the date hereof, a good faith, non-binding forecast (including reasonable substantiation) shipment of the number CSW Multimedia Products in the following aggregate amounts (each a "TOTAL REQUIRED AMOUNT"): (a) at least * of TM2500s that it expects CSW Multimedia Products in the First Period, (b) * of CSW Multimedia Products in the Second Period, and (c) * of CSW Multimedia Products in the Third Period, then, during the Period following Creative s failure to order satisfy the Total Required Amount in any given Period, CSW shall have the right to sell an amount of CSW Two-Piece Products (as defined herein) equal to the difference between the * for such Period and the * . Such sales pursuant to POs hereunder during this Section 10.4(b) may be in any markets, including the 12 month period beginning on Distribution Markets; PROVIDED, HOWEVER, that the date hereof. On or before every six month anniversary of the date of this Agreement, Buyer shall provide a good faith, non-binding forecast of the number of TM2500s that it expects to order pursuant to POs hereunder during the six month period beginning on the next succeeding six month anniversary (e.g., on the six month anniversary of this Agreement, the forecast shall cover the six month period from the 12 month anniversary of this Agreement until the 18 month anniversary of this Agreement) (each such good faith, non-binding forecast, an “Exclusivity Forecast,” price protection and any TM2500s expected to be ordered pursuant to any Exclusivity Forecast, “Forecasted TM2500s”). Nothing hereunder shall obligate Buyer to deliver POs for all of the Forecasted TM2500s during any particular six month period nor prohibit Buyer from delivering POs for more TM2500s than the Forecasted TM2500s during any particular six month period (any such excess TM2500s ordered, the “Surplus TM2500s”). The exclusive supply obligations described price reduction provisions set forth in Section 4.02 and the right of first offer described in Article X 4.2 shall terminate and be of no further force and effect if Seller and its Affiliates at any time (i) reject a PO (or any applicable portion thereof) that relates to Forecasted TM2500s and that complies with the terms of this Agreement and the Seller Standard Terms, in each case, without modification (or with modification only following agreement by Seller in respect of such PO) or (ii) is unable or unwilling to promptly (and in any event within fourteen days) deliver any Forecasted TM2500s ordered pursuant apply to any such compliant PO on sales by CSW under this Section 10.4(b), and PROVIDED FURTHER that in no event shall CSW sell any CSW Two-Piece Products pursuant to this Section 10.4(b) at a price lower than the basis of price that CSW has offered Creative for the pricing set forth on Appendix 2 and the terms and conditions of sale set forth in this Agreement and the Seller Standard Termssame CSW Two-Piece Products during prior twelve months. This Section 4.03(b) pertains only to Forecasted TM2500s and is inapposite with respect to Surplus TM2500s, breaches or defaults with respect to which are subject to Section 4.03(a)(ii). (c) Seller has provided to Buyer, as of the date hereof, a good faith estimate of the number of TM2500s that it currently has in inventory and are available for sale to Buyer. On or before every six month anniversary of the date For purposes of this AgreementSection 10.4(b), Seller "CSW TWO-PIECE PRODUCTS" shall provide to Buyer an updated good faith estimate mean any CSW Multimedia Products that are two-piece standalone desktop speaker products for use with a Personal Computer System (as defined in Section 2.2). Notwithstanding the foregoing, the provisions of the number of TM2500s that it has in inventorythis Section 10.4(b) shall have effect only if, including the serial numbers and the bulletin implementation status of each such TM2500 in inventory, as of at such time and are available for sale to Buyer. (d) Promptly upon as, Creative has purchased * units in any termination one month of the exclusive supply obligations described in Section 4.02 and right of first offer described in Article X pursuant to Section 4.03(b), the Parties will cooperate in good faith to enter into a new supply agreement (or amend this Agreement) CSW Two-Piece Products from CSW. The parties acknowledge that includes pricing, exclusivity and other terms and conditions that are reasonable for both Parties; provided, however, that this Section 4.03(d) CSW shall not be deemed entitled to ship CSW Two-Piece Products pursuant to this section in the event that CSW fails to ship CSW Multimedia Products to Creative in a firm commitment by either Party to enter into any such new (or amended) agreement. If the Parties are unable to agree on and enter into any such new (or amended) agreement within 60 days of commencing such good faith cooperation, this Agreement shall terminatetimely fashion.