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NATIONAL SCIENTIFIC CORPORATION
MASTER PURCHASE & LICENSING CONTRACT Exhibit 10.4
Contract Number NSC-UR103
This Contract is dated this 12th day of January, 2001
By and Between
Name: OZAKI KOREA CO., LTD. Name: National Scientific Corporation
(a Korean Company) (a Texas State U.S. corporation)
Address: #1208 [ILLEGIBLE] d/b/a NSC
[ILLEGIBLE] , Seoul 0000 X. Xxxxxxxxx X-000
Xxxxx Xxxxxxx, XX 00000 XXX
Telephone: 00-0-0000-0000 Telephone: 000-000-0000
Fax: 00-0-0000-0000 Fax: 000-000-0000
("Vendor") ("NSC")
1. Description and Term. This Contract establishes the basic terms and
conditions which shall govern all Orders for Equipment, Software or
Services between the parties and shall be incorporated by reference in
Orders. These terms and conditions can only be varied in writing signed
by both parties. Unless otherwise agreed to in writing by Vendor and
NSC, if any printed term or condition contained in any Purchase Order,
acknowledgement or other form used by Vendor is inconsistent with any
term or condition contained herein, the provisions of this contract
shall apply and take precedence. This Contract shall remain in effect
for a term of 2 years unless terminated by either party upon ninety (90)
days prior written notice or otherwise under of the attached Terms and
Conditions.
2. Orders. Orders for Equipment, Software, or Services must be in writing
and shall specify a Purchase Order number, the above Contract Number,
the requested delivery date, the Equipment, Software or Services to be
Purchased or licensed, the quantities, the prices, and the desired
delivery location. No Order will be binding until issued in writing by
NSC and accepted by Vendor in writing.
3. Prices / Terms and Conditions. All Purchases and sales are subject to
the attached Terms and Conditions.
The undersigned Vendor has read and understands this Contract (including the
Terms and Conditions) and is not entering into this Contract on the basis of any
representations not expressly set forth in this Contract.
Vendor NSC
By: OZAKI KOREA CO. LTD. By: /s/ Xxxxxxx X. Xxxxxxxx
Name: [ILLEGIBLE] Name: Xxxxxxx X. Xxxxxxxx
Title: President Title: C.O.O., Executive V.P.
Date: 1-12-2001 Date: 1-12-2001
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l. PRICES; TAXES, PAYMENT.
1.1 PRICES. Prices and quantities for Equipment and Software, and Services
will be specified in each Purchase Order. Unless otherwise specified
in the Purchase Order, all currency amounts and payments will be in
U.S. dollars.
1.2 TAXES. Tax terms for Equipment and Software, and any Services will be
specified in each Purchase Order. In the event that such terms are not
specified, then the Vendor shall report and pay all excise, value
added, use and other domestic and foreign taxes (excluding only those
taxes based on net income) designated, levied, or based (i) upon the
Purchase price or any other amounts payable under this Contract; (ii)
on account of this Contract; or (iii) with respect to the Equipment,
Software or the Services. Vendor shall indemnify and hold harmless NSC
from all claims and liability resulting from Vendor's failure to
report or pay such amounts.
1.3 SHIPMENT. Shipment and delivery terms for Equipment and Software will
be specified in each Purchase Order. In the event that such terms are
not specified, then the Vendor shall be responsible for all shipment
costs FOB the NSC warehouse is Los Angeles, California, USA.
1.4 TITLE. Title to the Equipment and Software shall pass to NSC upon
NSC's receipt of the Equipment.
1.5 PAYMENT. NSC shall pay all amounts due to Vendor according to the
terms specified in each Purchase Order. In the event that the Purchase
Order does not specify payment terms, the default terms shall be in
U.S. dollars Net 90 days of accepted delivery by NSC.
2. WARRANTIES, REPRESENTATIONS AND COVENANTS OF VENDOR. In addition to any
other Contracts of Vendor set forth in this Contract, Vendor makes the
following warranties, representations and covenants:
2.1 RISK OF LOSS. Until receipt by NSC in its designated warehouse, Vendor
shall bear liability for all risk of loss or damage to any Equipment.
2.2 WARRANTY SUPPORT AND RETURNS. Vendor will provide warranty support to
its users, if Vendor offers such support. NSC will have no obligation
to pay Vendor for defective units, and will have the right to return
such to Vendor or to request a credit from the Vendor for such units.
Vendor is responsible for management of defective returns.
2.3 COMPLIANCE WITH LAWS. Vendor will comply with all foreign, federal,
state and local laws relating to the Purchase, use and operation of
the Equipment and Software, including without limitation all
applicable export laws. Vendor agrees that it will not export or
re-export the Equipment or Software without the appropriate United
States and foreign government licenses and will not export or
re-export the Equipment or Software to any countries where export or
re-export is prohibited by applicable government law or regulations.
Vendor shall have full responsibility for compliance with all laws
that require registration or approval of this Contract or any
governmental approval for sale or use of the Equipment or Software in
any jurisdiction where Vendor Purchases or uses the Equipment or
Software, and shall bear all costs associated with such compliance.
Vendor shall indemnify and hold harmless NSC for any damages that
result from a breach of this Section, and such indemnity shall survive
expiration or termination of this Contract.
3. WARRANTIES AND REPRESENTATIONS OF NSC. In addition to any other Contract of
Vendor set forth in this Contract, NSC makes the following warranties,
representations and covenants:
3.1 INSURANCE. NSC shall maintain, at its own expense and with established
insurance companies, adequate workers' compensation, comprehensive
general liability and automobile liability insurance coverage and
shall provide written proof of such insurance coverage upon the
request of Vendor.
3.2 WARRANTY SUPPORT. NSC will provide no warranty support or support of
any kind to any users of this Equipment. NSC is not responsible for
management of defective returns or any other type of end user returns.
3.3 LICENSING BY NSC OF ITS TECHNOLOGIES. Vendor may issue its own
Purchase Orders in Order to license NSC technologies. Such Purchase
Orders shall not be binding until signed by an officer of NSC.
4. CONFIDENTIALITY. Each party agrees not to disclose to any third party the
terms of this Contract (other than in general summary press release form
announcing this agreement, and as otherwise required under law for
disclosure) and any other information of the other party designated as
confidential ("Confidential Information") and also agrees not to use any
Confidential Information of the other party except as expressly permitted
under this Contract or except with the prior written consent of the other
party. Each party agrees to exercise the highest degree of care in
safeguarding the Confidential Information of the other party against loss
or other inadvertent disclosure.
5. LIMITATION OF LIABILITIES. IN NO EVENT WILL NSC BE LIABLE TO VENDOR OR TO
ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR
CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF
OR OTHERWISE RELATING TO THIS CONTRACT. IN NO EVENT WILL ANY LIABILITY TO
NSC EXCEED THE PURCHASE PRICE PAID BY NSC.
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6. [MISSING COPY]
6.1 Expiration; Termination for Convenience. This Contract shall remain in
effect for a term of two years unless earlier termination by either
party for convenience upon 90 days prior written notice.
6.2 Termination by BSC for Breach. NSC, at its sole option, and reserving
all other rights and remedies available to it at law or in equity,
shall have the right to terminate this Contract or any accepted Order
not then completed by giving written notice of termination to Vendor
of the occurrence of, but not limited to, any of the following:
(a) Vendor's failure to perform any material obligation set forth in
this Contract or any accepted Order not then completed, if such
failure has not been corrected within ten days after NSC has
given Vendor written notice of such failure; or
(b) Any act or event whereby Vendor (i) is or becomes insolvent, (ii)
is or becomes a party to any bankruptcy or receivership
proceeding or any similar action affecting the financial
condition or property of Vendor.
6.3 Termination by Vendor for Breach. Vendor, at its sole option and
reserving all other rights and remedies available to it at law or in
equity, shall have the right to terminate this Contract or any
accepted Order not then completed by giving written notice of
termination to NSC of the occurrence of any of the following:
(a) NSC's failure to pay to Vendor any charge, cost, or other payment
accruing under any accepted Order, if such delinquency has not
been corrected within thirty days after Vendor has given NSC
written notice of such delinquency;
(b) NSC's failure to perform any other material obligation set forth
in this Contract or any accepted Order, including any act of
repudiation or wrongful rejection of the Equipment, if such
failure has not been corrected within thirty days after Vendor
has given NSC written notice of such failure; or
(c) Any act or event whereby NSC (i) is or becomes insolvent, (ii) is
or becomes a party to any bankruptcy or receivership proceeding
or any similar action affecting the financial condition or
property of NSC.
7. General Provisions
7.1 Force Majeure. Neither party shall be liable for any delays in
performance (other than obligations for the payment of money) due to
acts of God, war, riots, strikes, industrial or labor disputes, delays
in transit, or any other cause, whether similar or dissimilar, beyond
such party's control and without its fault or negligence. Each party
will use its best efforts to notify the other party in writing as soon
as it has knowledge that any such delays may occur, but such party
shall not be liable for any failure to give such notification. Any
agreed-upon schedule shall be extended for a period of time equal to
the period of delay.
7.2 Entire Contract. This Contract, the attached Schedules and any
accepted Orders contain the entire Contract between NSC and Vendor
with respect to the subject matter of this Contract. All prior
representations, demonstrations, arrangements or understandings are
superseded by this Contract. In particular, there are no
representations or warranties not expressly set forth in this
Contract.
7.3 Non-Solicitation. Vendor shall not induce or attempt to influence,
directly or indirectly, any employee or agent or partner of NSC to
terminate his or her relationship or employment with NSC or to work
for Vendor or any other person, and will not hire any employee of NSC
during the performance of any Services for a period of one year after
termination of this Contract.
7.4 Governing Law. This Agreement shall be governed in accordance with the
laws of the state Arizona and those of the United States of America,
except that the provisions of the United Nations Convention on
International Sale of Goods the and United Nations Convention on
Statutory Limitations will not apply. This Agreement may be translated
into a language other than English, but this English version of the
Agreement shall control the rights and obligations of the parties
regardless of any subsequent of any subsequent translation and
regardless of any reliance by any party upon such translation. All
communications and notices related to this Agreement shall be in
English, and all transaction shall be in U.S. dollars unless otherwise
specified.
7.5 Counterparts and Modification. Any representations purporting to
waive, vary, modify or supplement the terms of this Contract shall be
of no force or effect unless in writing and signed by a
duly-authorized officer of NSC and Vendor. This Contract may be
executed in one or more counterparts, all of which together shall
constitute one complete Contract.
7.6 Notification. Unless otherwise provided in this Contract, any notice
or communication required or permitted to be given to either party
shall be in writing and shall be considered effective when received in
the mail (postage prepaid, certified with return receipt requested),
by facsimile or by courier at the address shown on page 1 of this
Contract for the party to be notified, unless such party has notified
the sender in writing of a change of address, in which case notice
shall be mailed as described above, to the revised address.
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