COMMERCIAL OLED MATERIAL SUPPLY AGREEMENT
Exhibit
10.3
THIS
COMMERCIAL OLED MATERIAL SUPPLY AGREEMENT (this “Agreement”) is
entered into by and between Kyocera Corporation, a Japanese corporation with a
place of business at 6 Xxxxxx Xxxxxxxx-Xxx, Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx
(“Kyocera”),
and Universal Display Corporation, a Pennsylvania corporation with a place of
business at 000 Xxxxxxxx Xxxx, Xxxxx, Xxx Xxxxxx 00000, X.X.X. (“Universal
Display”).
BACKGROUND
WHEREAS,
Universal Display makes and sells certain materials for use in organic light
emitting devices; and
WHEREAS,
Kyocera desires to purchase these materials from Universal Display on the terms
and conditions set forth herein; and
WHEREAS,
Kyocera desires to have an option to make this Agreement effective on certain
conditions set forth herein.
NOW,
THEREFORE, intending to be legally bound, Kyocera and Universal Display agree as
follows:
Article
1 Terms
of Sale; Orders and Forecasts
1.1 General. Universal
Display will sell to Kyocera, and Kyocera will purchase from Universal Display,
directly or through its Affiliates, such of the OLED materials currently offered
for commercial sale by Universal Display
and specified on Exhibit A hereto (the
“Products”) as
Kyocera may order from time to time. Exhibit A shall be
updated by the parties from time to time as Kyocera desires other OLED materials
that Universal Display is offering for commercial sale, or as Universal Display
ceases offering to sell certain of the OLED materials currently being sold to
Kyocera hereunder. Universal Display shall provide Kyocera with at
least six (6) months’ prior written notice of its intention to discontinue
offering for commercial sale any OLED material currently being sold to Kyocera
hereunder.
1.2 No Additional
Terms. Unless otherwise expressly agreed to in writing, Universal
Display’s sale and Kyocera’s purchase of all Products hereunder shall be solely
on the terms and conditions set forth herein. Each party accepts
these terms and conditions and no inconsistent or additional terms or conditions
of any purchase order, acceptance, shipping instructions or other document
submitted by either party shall apply other than those specified in Section 1.3
below. All such other terms and conditions are hereby rejected and no
separate notice of such rejection need be given by either party. The
terms and conditions of this Agreement shall apply to the sale and purchase of
Products by Kyocera Affiliates; provided, however, that Kyocera, as the signing
party to this Agreement, shall remain responsible for its Affiliates’ compliance
with such terms and conditions.
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1.3 Purchase
Orders. Kyocera or its Affiliates shall place written orders
with Universal Display for the Products (“Orders”) in advance
of the requested shipment date, but with the agreed
lead-time. Initial lead-time from Order to shipment shall be as
follows:
[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
All
Orders shall include (a) the date of the Order, (b) the identity and quantity of
each Product ordered, (c) the requested date of shipment, and (d) the shipping
destination. Universal Display shall notify Kyocera in writing of its
acceptance of each Order within five (5) business days of receipt of the Order;
such acceptance not to be unreasonably withheld. For clarification,
Universal Display shall not be bound to accept any Order without the requisite
lead time; however, Universal Display shall in any event use its commercially
reasonable efforts to meet the requested date of shipment under such
circumstances.
1.4 Forecasts. Kyocera
will, at its option, provide Universal Display, in writing, with rolling
forecasts, on a calendar quarterly basis by the end of each quarter, of its
expected requirements for each Product during the next [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.]. Kyocera’s rolling forecasts shall be used by Universal
Display for planning purposes only, and do not represent binding
commitments by Kyocera to purchase the quantities stated
therein. Only if Kyocera issues Orders for the Products and Universal
Display accepts such Orders shall Universal Display be authorized and bound to
deliver, and Kyocera be bound to purchase, the quantities stated in such
Orders.
1.5 Title and Risk of
Loss. Unless otherwise agreed, all Products shall be sold [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.], the location of Universal Display’s Ewing, New
Jersey facility. Kyocera shall be
responsible for all associated shipping and insurance charges, brokers’
fees and the like, and Kyocera may designate its preferred freight forwarder in
the United States to handle all Product shipments. In the absence of
such designation, Universal Display will arrange
for a freight forwarder to handle the shipment on Kyocera’s behalf and
at Kyocera’s sole expense.
1.6 Shipping
Dates. Universal Display will use commercially reasonable
efforts to meet Kyocera’s requests for specific shipment dates. Absent
good cause, Kyocera shall in good faith accept and pay for partial
deliveries on the terms set forth herein. However, nothing in this
paragraph shall relieve Universal Display of its obligations hereunder with
respect to confirmed shipping dates.
1.7 Continuity of
Supply. Universal Display shall use commercially
reasonable efforts ensure that Universal Display provides the Products to
Kyocera or its Affiliates (as defined below) in the quantity and quality
reasonably Ordered by Kyocera or its Affiliates as set forth
herein. In support of this obligation, Universal Display shall adopt
and implement, and shall ensure that its contract manufacturer of any Product
adopts and implements, commercially reasonable continuity of business plans and
procedures. Summary documentation of these plans and procedures shall
be made available to Kyocera upon its request. In addition, Kyocera
shall have the right, upon prior notice and at mutually agreeable times, to
visit and inspect the facilities of Universal Display and
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1.8 its
contract manufacturer for purposes of verifying that sufficient equipment and
processes are in place for implementation of the continuity of business plans
and procedures.
1.9 Definition of
Affiliate. For the purpose of this Agreement, “Affiliate”
means a corporation, partnership, trust or other entity that directly or
indirectly (through one or more intermediates) controls, is controlled by or is
under common control with a party. For such purposes, “control,”
“controlled by” and “under common control with” shall mean the ability to make,
or participate meaningfully in the making of, business decisions on behalf of
the relevant entity and/or such party, as applicable. “Control” shall
be presumed where the party in question owns fifty percent (50%) or more of the
voting or other similar interests in the relevant entity.
Article
2 Inspection
and Acceptance
2.1 Qualification Testing by
Universal Display. Universal Display will conduct
qualification testing of each production lot of Product before shipping any
Product from such lot to Kyocera. Such qualification testing shall be
designed to ensure that the Product conforms to its corresponding specifications
as attached hereto or otherwise agreed to by the parties in writing (the “Product
Specifications”). Universal Display will not ship Product to
Kyocera from any lot that does not meet the applicable Product
Specifications. With each Product shipment, Universal Display will
submit to Kyocera a Certificate of Analysis indicating that such lot conforms to
the applicable Product Specifications, which are designed to ensure that the
Product quality of the shipment will be the same as the Product quality of
previous shipments, and that there have been no material changes in the
Products, or in the raw materials (including source(s) of such raw materials),
processes, facilities or contractors used to manufacture the Products, of which
Kyocera was not previously notified in writing.
2.2 Acceptance Testing of
Samples by Kyocera.
2.2.1 Upon
Kyocera’s request and before filling an Order, Universal Display will
provide Kyocera [The confidential material contained herein has been omitted and
has been separately filed with the Commission.] with a [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] test sample from the production lot(s) from which the Product
will be supplied; provided, however, that no such sample shall be sent from
production lot(s) for which Kyocera has already received a test
sample. Unless requested by Kyocera, Universal Display will not
initiate any shipment of Product from a new production lot until Kyocera has
notified Universal Display of Kyocera’s approval of the test sample from the
lot.
2.2.2 Within
two (2) weeks following its receipt of a
test sample as specified above, Kyocera will conduct an acceptance test to
confirm that the sample conforms to its corresponding Product
Specifications. At the conclusion of such two (2) week period, Kyocera will inform
Universal Display in writing as to whether or not the test sample passed this
acceptance test. Kyocera understands and acknowledges that any delay
in so informing Universal Display may result in an equal delay in the shipping
date.
2.2.3 If the
test sample does not pass Kyocera’s acceptance test, the parties shall promptly
and in good faith discuss and attempt to determine why this has occurred and
to
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2.2.4 implement
procedures to prevent its recurrence. At the same time, Universal
Display will in good faith endeavor to fill the Order in a timely manner by
shipping to Kyocera Product from one or more production lots for which the test
samples have already passed Kyocera’s acceptance test. Should there
be insufficient material from such production lots for Universal Display to fill
the Order, Universal Display will promptly provide Kyocera with a test sample
from one or more other production lots for which no test samples have previously
been sent and the process above shall be repeated until sufficient material to
fill the Order has been identified.
2.3 Shipping Inspection by
Universal Display. Universal Display will conduct a final
visual inspection of all Product before shipping such Product to
Kyocera. Universal Display will not ship to Kyocera any Product that
does not pass such visual inspection.
2.4 Receiving Inspection by
Kyocera. Upon receipt of each Product shipment, Kyocera will
inspect such shipment for any shortage or appearance defects. Kyocera
will provide Universal Display with written notice of any shortage or appearance
defects promptly following Kyocera’s receipt of the shipment, which notice shall
specify in reasonable detail the manner in which the shipment is short or
appears to be defective. In the absence of Universal Display
receiving written notification to the contrary within thirty (30) days following
Kyocera’s receipt of the shipment, Kyocera shall be deemed to have accepted the
shipment. [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
2.5 Other
Procedures. The parties may agree on more detailed inspection,
certification and testing procedures in order to supplement the foregoing
provisions of this Article 2. The parties may also agree to eliminate
or curtail the procedure regarding the shipment and acceptance testing of test
samples, in which event acceptance testing will occur in connection with the
receiving inspection of each Product shipment outlined above. All
modifications to the procedures in this Article 2 must be agreed to in writing
(including confirmed email correspondence) by an authorized representative of
each party and will be effective only when such written agreement is attached to
this Agreement.
2.6 [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
Article
3 Health
and the Environment
3.1 Health and
Safety. Universal Display will furnish Kyocera with a Material
Safety Data Sheet (an “MSDS”) for each
Product where required by applicable law. The MSDS shall reasonably
disclose all hazards known to Universal Display in relation to storage,
handling, use and disposal of the Product. Universal Display will
share with Kyocera specifically requested health and safety test data that
Universal Display, or its contract manufacturer, has already compiled for any
Product. Kyocera shall use these MSDS’s and such additional test data
to familiarize itself with any known hazards associated with the Products, their
storage, handling, use and disposal, and the containers in which they are
shipped. Kyocera shall make available the MSDS for each Product to
all those required by law to receive access to them. In addition,
Kyocera shall appropriately inform and train its employees and other personnel
as to the hazards identified
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3.2 in the
MSDS for each Product and any other hazards discovered by Kyocera through its
use of such Product.
3.3 Waste
Management. Kyocera shall properly manage and dispose of all
wastes and/or residues resulting from its use of the Products in accordance with
its corresponding MSDS and all applicable laws and regulations.
Article
4 Intellectual
Property Matters
4.1 Permitted Uses of the
Products. Kyocera acknowledges that Universal Display is
selling the Products to Kyocera solely for use by Kyocera to manufacture a
certain type of OLED related products as authorized under the OLED Technology
License and Technical Assistance Agreement between Universal Display and Kyocera
dated as of the same date hereof (the “License Agreement,” and said products
referred to as the “Licensed Product”). Accordingly, Kyocera may not
sell or otherwise distribute the Products to any other person or entity, or use
the Products, or permit or assist others to use the Products, for any other
purposes. Subject to the foregoing, no rights are granted to Kyocera
under any patents or other intellectual property owned or controlled by
Universal Display. Kyocera acknowledges that the pricing charged by
Universal Display for Products sold under this Agreement is based on Kyocera’s
agreement to use such Products only for the manufacture of Licensed Products,
and that such pricing would not otherwise have been offered to
Kyocera.
4.2 Third-Party
Patents. Kyocera acknowledges that it may be required to
obtain rights under one or more third-party patents in order to manufacture and
sell its products that contain the Products (e.g., where Kyocera’s
products utilize particular device structures and/or have additional attributes
claimed by such third-party patents). Upon Kyocera’s request,
Universal Display will reasonable assist Kyocera in determining such
rights. However, subject to the express warranties and obligations of
Universal Display under Articles 7 and 8 below, Kyocera shall be responsible for
obtaining such rights. [The confidential material contained herein
has been omitted and has been separately filed with the
Commission.]
4.3 Analysis and Evaluation of
the Products. Kyocera shall not reverse engineer the Products,
or analyze the Products to determine their chemical compositions, structures or
methods of manufacture, or for any other purposes
not related to manufacturing, developing,
improving or selling Kyocera’s display device with the Product, or
the
manufacturing process for such
display device, or expressly approved in
writing by Universal Display, nor shall Kyocera permit or assist others
to perform the foregoing activities. In addition, Kyocera shall not
publish or otherwise disclose to third parties any test results or other
information or data regarding Kyocera’s evaluation of the Products without
Universal Display’s prior written consent. [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.]
4.4 Technical
Advice. Kyocera is responsible for making its own inquiry and
investigation into, and based thereon forming an independent judgment
concerning, the Products and their suitability for the uses intended by
Kyocera. Kyocera shall not assert any claim against Universal Display
or hold Universal Display liable in any manner with respect to any information
or designs furnished (or failed to be furnished) by Universal Display including,
without limitation,
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4.5 technical
advice or recommendations. [The confidential material contained
herein has been omitted and has been separately filed with the
Commission.]
Article
5 Pricing
and Payments
5.1 Product
Pricing. Pricing for the Products during the term of this
Agreement shall be as set forth on in Exhibit A
hereto. Any price change will not be
effective unless confirmed by both parties in writing. Orders issued
prior to any confirmed price change shall remain at the original price unless
agreed in writing by the parties. [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.]
5.2 [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
5.3 Invoicing. Universal
Display shall invoice Kyocera or its Affiliates for all Products at the time of
shipment. All invoices are due and payable within sixty (60) days
following the date of Universal
Display’s invoice and
shipment of the Product, subject to
Kyocera’s right to return and withhold payment for Product shipments that are
properly rejected based on Kyocera’s receiving inspection under Section 2.4
above. If Kyocera fails or refuses to timely pay any amounts
not then being disputed by Kyocera in good faith, Universal Display may, upon
prior written notice to Kyocera, (a) require that Kyocera pay for future
shipments in advance or by letter of credit or other similar means, and/or (b)
suspend delivery of further shipments of Products until Kyocera pays such
undisputed amounts in full. The foregoing shall not limit any other
rights or remedies available to Universal Display for non-payment or late
payment of amounts due hereunder.
5.4 Sales and Other Similar
Taxes. Any sales, use or value-added taxes, customs or import
duties or other governmental charges, transfer fees or assessments based on the
sale, shipment, import, export and/or use of the Products sold hereunder (other
than taxes based upon Universal Display’s net income), whether imposed by any
local, state, Federal or foreign government or taxing authority, are in addition
to the purchase price for the Products and shall be the responsibility
of Kyocera. To the extent Universal Display is responsible by
law for the collection of such amounts, they shall be separately stated on
Universal Display’s invoices for such Products and, upon collection, remitted by
Universal Display to the appropriate taxing authority.
5.5 Payments. All
amounts due to Universal Display hereunder shall be paid in U.S. Dollars by wire
transfer to a bank designated by Universal Display in writing, or by such other
means as the parties may agree in writing. Universal Display’s
current wire instructions are as follows:
[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
Each
payment shall be fully earned when due and nonrefundable once
made. Any and all set-off, deduction or credit for any amount owed
(or alleged to be owed) by Universal Display to Kyocera or any of its Affiliates
will not be permitted without mutual written confirmation of both
Kyocera
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and
Universal Display. Without limiting its other rights or remedies on
account of any late payment, Universal Display may require Kyocera to pay
interest on any late payments. [The confidential material contained
herein has been omitted and has been separately filed with the
Commission.]
5.6 Payment Authorization and
Associated Charges. Kyocera shall secure all authorizations
required for payment of all amounts due to Universal Display hereunder and shall
bear all transfer fees, taxes and other charges associated
therewith.
Article
6 Confidentiality
6.1 Obligations of
Confidentiality and Non-Use. Each party (the “Recipient”) shall
handle and maintain all Confidential Items of the other party in accordance with
the following terms and conditions:
6.1.1 Recipient
shall not publish, disclose or otherwise disseminate any Confidential Items of
the other party, except to such of Recipient’s employees and agents (and, in the
case of Kyocera, to the employees and agents of its Affiliates) who have a “need
to know” it to accomplish the purposes of this Agreement, and then only if such
persons are previously otherwise obliged to handle and maintain such
Confidential Items in accordance with the provisions of this Agreement or
provisions substantially similar thereto. Disclosure or dissemination
of Confidential Items of the other party to additional persons or entities
requires the prior written approval of such other party.
6.1.2 Recipient
shall maintain all Confidential Items of the other party in a safe and secure
place with reasonable safeguards to prevent any unauthorized access to or
disclosure of such Confidential Items. As used herein, “reasonable
safeguards” means all safeguards that a reasonable person would take to protect
the Confidential Item in question, which safeguards shall be no less than the
safeguards Recipient takes to protect its own confidential or proprietary items
of a similar nature.
6.1.3 Recipient
may copy Confidential Items of the other party only as is reasonably necessary
for Recipient to accomplish the purposes of this Agreement. Copying
or reproduction of Confidential Items except as permitted herein is strictly
prohibited.
6.1.4 Recipient
shall not utilize or exploit any Confidential Items of the other party, or
permit or assist others to utilize or exploit such Confidential Items, except as
is reasonably necessary to accomplish the purposes of this
Agreement. Reverse engineering, disassembly or other methods designed
to derive the composition, structure, method of manufacture or purity of
Confidential Items is strictly prohibited except for Kyocera’s tests as
otherwise permitted in this Agreement.
6.1.5 Recipient
shall not publish or otherwise disclose to third parties, including by
referencing or including in any patent application, any test results or other
information or data regarding Recipient’s evaluation or use of any Confidential
Items of the other party without the other party’s prior written
consent.
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6.1.6 Promptly
upon learning of any unauthorized use or disclosure of any Confidential Item of
the other party, Recipient shall provide the other party with written notice
thereof and take such other steps as are reasonably requested by the other party
in order to limit the effects of such use or disclosure and/or prevent any
further unauthorized use or disclosure of such Confidential Item.
6.1.7 Promptly
upon the expiration or sooner termination of this Agreement, Recipient shall
return to the other party, destroy and/or delete from Recipient’s records and
computer systems all Confidential Items of the other party, including any copies
or portions thereof, in Recipient’s possession or control; provided, however,
that Recipient may retain one copy of documents incorporating Confidential Items
for archival purposes only if permitted by the other party. Within
thirty (30) days following the other party’s written request, Recipient shall
provide the other party with a certificate of Recipient’s compliance with the
foregoing requirements.
6.2 Definition of Confidential
Items. As used
herein, “Confidential
Items” of a party are all trade secret, proprietary and confidential
information and materials, in written, oral or electronic form, relating to such
party’s or its licensors’, suppliers’ or business partners’ technologies,
compounds, research programs, operations and/or financial or business condition
(including, without limitation, know-how, data, drawings, designs,
specifications, formulations, processes, methods, equipment, software and
pricing information) that is (a) disclosed in writing and marked as
“Confidential”, “Proprietary” or with similar words at the time of disclosure,
or (b) orally disclosed and identified as confidential or proprietary at the
time of disclosure and confirmed as such in writing, conspicuously marked as
described above, within thirty (30) days thereafter. Notwithstanding
the foregoing, “Confidential Items” of a party shall not include any information
or materials that:
6.2.1 are
approved by such party in writing for release by Recipient without
restriction;
6.2.2 Recipient
can demonstrate by written records were previously known to Recipient other than
through a prior disclosure by such party or any third party with an obligation
of confidentiality to such party;
6.2.3 are
publicly known as of the date of this Agreement, or become public knowledge
subsequent thereto, through no act or omission of Recipient or any third party
receiving such items from or through Recipient;
6.2.4 are
obtained by Recipient in good faith from a third party without the violation of
any obligation of confidentiality to such party by either Recipient or the third
party; or
6.2.5 are
independently developed by or on behalf of Recipient without the benefit of such
party’s Confidential Items, as shown by competent written records.
6.3 Disclosure Required by
Law. This Agreement shall not restrict Recipient from
disclosing any Confidential Items of the other party to the extent required by
applicable law, or by the order of any court or government agency; provided,
however, that Recipient shall afford the
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6.4 other
party prompt notice of such law or order, so that the other party may interpose
an objection to such disclosure or take whatever other actions the other party
deems appropriate to protect such Confidential Items, and provided further that
Recipient shall use all reasonable efforts to limit such disclosure to only
those Confidential Items that are required to be disclosed and to ensure that
the person or entity to whom such Confidential Items are disclosed agrees to
keep them confidential.
6.5 Responsibility for
Personnel. Recipient shall be responsible for the acts or
omissions of any persons or entities receiving Confidential Items of the other
party from or through Recipient to the extent such acts or omissions, if
performed or not performed by Recipient, would constitute violations of this
Agreement by Recipient.
6.6 Confidentiality of this
Agreement. The terms of
this Agreement and its existence shall be deemed Confidential Items of each
party and treated as such by both parties unless otherwise stipulated in this
Agreement. Notwithstanding the foregoing sentence, either party may
disclose in its public filings such of the terms of this Agreement as are
reasonably required for such party to comply with applicable securities laws and
regulations, including, without limitation, by filing an appropriately redacted
copy of this Agreement in connection therewith. In addition, either
party may issue a press release or other public announcement describing the
general nature of this Agreement upon prior agreement of the parties, or the
parties may agree to issue such a release or announcement
jointly. However, it is expressly understood and agreed that no such
release or public disclosure shall disclose any information about Kyocera’s
expected or intended product launch strategy without Kyocera’s prior written
consent. Subject to the foregoing provisions of this paragraph, any
such public disclosure of the specific financial terms or other provisions of
this Agreement, or any other information regarding the relationship between the
parties hereunder, shall require the other party’s prior written
consent.
Article
7 Representations
and Warranties; Disclaimers and Limitations of Liability
7.1 Warranties by Both
Parties. Each party represents and warrants to the other that
such party has the right, power and authority to enter into this Agreement and
to perform its obligations hereunder, and that such performance will not violate
any other agreement or understanding by which such party is bound.
7.2 Further Product Warranty by
Universal Display. Universal Display additionally represents
and warrants to Kyocera that, on the date of shipment and for a period of [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] from the date of shipment of the Products to
Kyocera, and subject to Kyocera maintaining the Products consistent with
commercially reasonable handling and storage practices and in accordance with
reasonable instructions provided in writing by Universal Display, each Product
will: (i) be clear of any liens or encumbrances; (ii) comply with its
corresponding Product Specifications; and (iii) [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.] In the event of a breach of the foregoing warranty which
occurs during the warranty period, and subject to Kyocera providing Universal
Display with prompt written notice thereof, Universal Display shall, at
Kyocera’s sole option and in addition to any other remedies in law or equity,
but subject to the disclaimers and limitations of liability set
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7.3 forth in
this Agreement, for breach of such warranty: (a) promptly replace any Products
that are not in compliance with the warranty at Universal Display’s sole
expense; and (b) reimburse all the fees that Kyocera paid Universal Display on
account thereof. Upon Universal Display’s request, Kyocera shall
return any Products claimed to be defective so that Universal Display may
analyze them to verify the defect and determine what caused the
defect.
7.4 Further Infringement
Warranty by Universal Display. Universal Display represents
and warrants to Kyocera that, to the best of Universal Display’s knowledge, the
Products [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]. If Kyocera is unable to
use any Product because the Product is held by a court of competent jurisdiction
to infringe such patent rights, Universal Display shall, in addition to
Kyocera’s other remedies in law or equity, but subject to the disclaimers and
limitations of liability set forth in this Agreement, accept return of any
quantities of such Product no longer reasonably useful to Kyocera on account
thereof and reimburse all fees that Kyocera paid Universal Display on account
thereof. [The confidential material contained herein has been omitted
and has been separately filed with the Commission.] The foregoing
shall be in addition to any indemnification
obligation of Universal Display under Article 8 below.
7.5 Disclaimer of Additional
Warranties. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT,
VALIDITY, QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY DISCLAIMED BY EACH PARTY.
7.6 Limitation on Damages for
Breach of Warranty. IN NO EVENT SHALL EITHER PARTY’S LIABILITY
FOR ANY BREACH OR ALLEGED BREACH OF REPRESENTATION OR WARRANTY UNDER THIS
AGREEMENT EXCEED IN THE AGGREGATE [The confidential material contained herein
has been omitted and has been separately filed with the
Commission.]
7.7 Limitation on Certain
Damages. [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER, WHETHER AS A RESULT OF BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING UNDER OR IN CONNECTION WITH A BREACH
OR ALLEGED BREACH OF THIS AGREEMENT. The foregoing limitation shall
not limit either party’s liability to the other party for: (a) any claims of
bodily injury or damage to tangible property resulting from such party’s gross
negligence or willful misconduct; (b) any unauthorized use of the other party’s
materials or technology; (c) any infringement of the other party’s patents; or
(d) any breach of the provisions of Article 6 respecting the other party’s
Confidential Items.
7.8 Essential Part of the
Bargain. The parties acknowledge that the disclaimers and
limitations of liability set forth in this Article 7 reflect a deliberate and
bargained for allocation of risks between them and are intended to be
independent of any exclusive remedies available under this Agreement, including
any failure of such a remedy to achieve its essential purpose.
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7.9 Mutual
Cooperation. In the event of any problems discovered by Kyocera with
respect to performance of the Products in Kyocera’s OLED display devices, and
whether or not such problems are due to a breach of warranty on the part of
Universal Display, the parties shall in good faith cooperate to discuss and
attempt to identify the causes of and resolve such problems in a mutually
satisfactory and timely manner.
Article
8 Indemnification
8.1 Indemnification by Universal
Display. In accordance with Section 8.2 below,
Universal Display shall defend and/or settle any third-party claim or action
brought against Kyocera and/or its officers, directors, suppliers, employees,
agents and representatives (each, a “Kyocera Indemnified
Person”), to the extent such claim or action concerns [The confidential material contained herein
has been omitted and has been separately filed with the
Commission.]. In addition, Universal Display shall indemnify and hold
harmless the Kyocera Indemnified Persons from and against any damages, fees and
expenses (including reasonable attorneys’ fees) payable by any of them to third
parties in connection with such claim or action[The confidential material
contained herein has been omitted and has been separately filed with the
Commission.].
8.2 Indemnification
Procedures. With respect to any claim or action for which
indemnification may be sought from a party under this Article 8, the person or
entity seeking indemnification (the “Claimant”) shall
promptly notify the indemnifying party in writing, specifying the nature of the
claim or action and, to the extent known, the total monetary amount sought or
other such relief as is sought therein. If it is unclear whether the
claim or action is subject to indemnification under this Agreement, the parties
will meet and in good faith discuss the situation in an effort to promptly
resolve the matter. The Claimant shall reasonably cooperate with the
indemnifying party, at the indemnifying party’s expense, in connection with the
defense and/or settlement of the claim or action. Provided the
indemnifying party admits its obligation to indemnify the Claimant hereunder,
indemnifying party shall have the right to control and conduct all proceedings
or negotiations in connection therewith, and to assume and control the defense
thereof. The Claimant shall have the right to employ separate counsel
to provide input into the defense, at Claimant’s own cost. The
indemnifying party shall keep the Claimant reasonably informed of the progress
of its defense and settlement of the claim or action. The
indemnifying party shall not settle the claim or action on the Claimant’s behalf
without first obtaining the Claimant’s written approval, which approval shall
not be unreasonably withheld or delayed. Upon rejecting any
settlement offer that does not admit liability or fault on the part of the
Claimant, the Claimant shall assume ongoing responsibility for the defense
and/or settlement of the claim or action, and shall be deemed to have waived any
right to indemnification in excess of the settlement offer
amount. The Claimant may settle any claim or action for which
indemnification is sought hereunder, but the indemnifying party will not be
responsible for any such settlement unless it shall have approved the
settlement, in writing and in advance, which approval shall not be unreasonably
withheld or delayed. Except as may be required by law, each party
agrees not to publicize any settlement without first obtaining the other party’s
written permission.
8.3 Liability
Insurance. Universal Display further agrees to maintain, at
Universal Display’s expense, commercial general liability insurance, including
bodily injury and property damage, in the amount of at least [The
confidential material contained herein has been omitted and
Universal
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8.4 has been
separately filed with the Commission.] per occurrence above the lowest
commercially reasonable deductible that may be obtained, during the term of this
Agreement [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]. Universal Display will
add Kyocera as additional insured on these policies, and, upon request,
Universal Display will supply Kyocera with copies of all such policies or
certificates of all such insurance.
Article
9 Term
and Termination
9.1 Term. Unless
otherwise extended by mutual written agreement of the parties, the term of this
Agreement shall commence on the Effective Date and shall continue, unless
terminated sooner as permitted hereunder, for a period of five (5) years or
through the date on which the License Agreement expires or is terminated,
whichever is sooner. After the initial five (5) year period, this
Agreement will subject to renewal by mutual written agreement of the parties,
which agreement shall not be unreasonably withheld. [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.]
9.2 Termination for
Breach. Either party may terminate this Agreement on written
notice to the other party if the other party materially breaches any of its
obligations under this Agreement and fails to cure such breach within thirty
(30) days following written notice thereof by the terminating
party. Provided, however, if such breach is not reasonably
susceptible of being cured within such thirty (30) day period, so long as the
breaching party has commenced to cure the breach and diligently prosecutes the
cure during such thirty (30) day period, the breaching party will be allowed an
additional reasonable period after such thirty (30) day period to diligently
complete the cure, said additional reasonable period not to exceed sixty (60)
days unless mutually agreed to by the parties in writing.
9.3 Other
Termination. Either party may terminate this Agreement on
written notice to the other party if the other party permanently ceases
conducting business in the normal course, becomes insolvent or is adjudicated
bankrupt, makes a general assignment for the benefit of its creditors, admits in
writing its inability to pay its debts as they become due, permits the
appointment of a receiver for its business or assets, or initiates or becomes
the subject of any bankruptcy or insolvency proceedings which proceedings, if
initiated involuntarily, are not dismissed with ninety (90) days
thereafter.
9.4 Survival. The
following provisions of this Agreement shall survive the expiration or earlier
termination of this Agreement: (a) Articles 4 through 10; (b) any
payment obligations of Kyocera with respect to Products received or for which
Orders have been placed prior to the date of such expiration or earlier
termination; and (c) any other provisions necessary to interpret the respective
rights and obligations of the parties hereunder.
Article
10 Miscellaneous
10.1 Independent
Contractors. This Agreement is not intended by the parties to
constitute, create, give effect to, or otherwise recognize a joint venture,
partnership, or formal business organization of any kind. Each party
hereto shall act as an independent contractor, and
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10.2 neither
shall act as an agent of the other for any purpose. Neither party has
the authority to assume or create any obligation, express or implied, on behalf
of the other.
10.3 Force
Majeure. Neither party shall be in breach of this Agreement
for any failure of performance caused by an event beyond its reasonable control
and not due to its fault or negligence, but excluding any failure to pay
monetary amounts due and owing. In the event that such a force
majeure event occurs, the party unable to perform shall promptly notify the
other party of such non-performance and its expected duration. In
addition, such party shall in good faith maintain such partial performance of
this Agreement as is reasonably possible, shall use all reasonable efforts to
overcome the cause of nonperformance and shall resume full performance as soon
as is reasonably possible.
10.4 Notices. Any
disclosures or notices required or permitted hereunder shall be in writing and
shall be deemed effectively given upon receipt of such disclosures or notices by
the receiving party. Such disclosure or notices shall be given by
personal delivery, certified mail with postage prepaid and return receipt
requested, or prepaid delivery using a recognized private courier, to each party
at its address set forth below. Either party may change its address
for such notices at any time by means of a notice given in the manner provided
in this paragraph.
All
Orders and any other notices respecting the Products, to:
|
Universal
Display Corporation
|
Kyocera
Corporation
|
|
|
000
Xxxxxxxx Xxxxxxxxx
|
Xxxx
Xxxxxx
|
|
|
Xxxxx,
Xxx Xxxxxx 00000
|
6
Xxxxxx Xxxxxxxxxxx
|
|
|
Xxxxxxx-xx,
Xxxxx 000-0000 Xxxxx
|
[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
All other
notices and communications:
[same as
above] [same
as above]
[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
10.5 Non-Assignment. This
Agreement and the rights and obligations of the parties hereunder shall not be
assigned or transferred by either party without the prior written consent of the
other party, except that either party may assign or transfer this Agreement, in
its entirety and on written notice to the other, to a successor in interest to
all or substantially all of such party’s business to which this Agreement
relates, whether by merger, acquisition or otherwise. Notwithstanding
the foregoing, Kyocera may not assign or transfer this Agreement to a third
party to whom Kyocera would not be permitted to assign or transfer the License
Agreement. Should Kyocera assign or transfer this Agreement, whether
by merger, acquisition or otherwise, to a third party with an existing OLED
business, or should Kyocera acquire the existing OLED business of any third
party, the Products sold to Kyocera under this Agreement shall not be used in
any current or future products of such third party’s OLED business unless
expressly agreed to by Universal
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10.6 Display
in writing. Moreover, should Universal Display have already entered
into a similar supply agreement with the third party at the time of such
assignment, transfer or acquisition, there shall be no reduction of the payment
or other obligations of Kyocera under this Agreement as they pertain to Products
sold to Kyocera for use in its OLED business, or of such third party under its
similar supply agreement as they pertain to Products used in the third party’s
OLED business, unless expressly agreed to by Universal Display in
writing. Nothing herein shall confer any rights upon any person other
than the parties hereto and their respective successors and permitted
assigns.
10.7 Equitable
Relief. In the event of a party’s actual or reasonably
anticipated infringement of the other party’s patents, unauthorized use of the
other party’s proprietary materials or information; or breach of the provisions
of Article 6 respecting the other party’s Confidential Items, the other party
may seek to obtain such injunctions, order and decrees as may be necessary to
restrain such activity, without the necessity of proving actual damages and
without posting any bond or other security. Such injunctive relief
shall be in addition to any other rights or remedies available to the other
party under this Agreement, at law or in equity.
10.8 Choice of
Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New Jersey, U.S.A.,
without respect to its rules on the conflict of laws. Any dispute or
difference arising out of or in connection with this Agreement (including any
question regarding its existence, validity or termination) shall be submitted to
the competent courts of a country where proper jurisdiction and venue exists
over the party against which a claim is being asserted.
10.9 Severability. In
the event that any term of this Agreement is held to be invalid, illegal, or
unenforceable, such invalidity, illegality, or unenforceability shall not affect
any other portion of this Agreement, and there shall be deemed substituted for
such term other term(s) that are permitted by applicable law and that will most
fully realize the intent of the parties as expressed in this
Agreement.
10.10 No
Waivers. The failure of either party to enforce, or any delay
in enforcing, any right, power or remedy that such party may have under this
Agreement shall not constitute a waiver of any such right, power or remedy, or
release the other party from any obligations under this Agreement, except by a
written document signed by the party against whom such waiver or release is
sought to be enforced.
10.11 Entire Agreement;
Amendments. This Agreement constitutes the entire
understanding and agreement of the parties respecting the subject matter hereof
and supersedes any and all prior agreements, arrangements or understandings
between the parties, whether written or oral, relating thereto. This
Agreement may not be amended or supplemented in any way except by a written
document signed by both parties.
10.12 Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts, each
of shall be deemed an original, but all of which together shall constitute one
and the same instrument.
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10.13 Export
Control. Both parties agree to cooperate to ensure that
exports of the Product and related technical data from the United States to
Japan comply with U.S. export control regulations. [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] Kyocera also agrees not to re-export the Products or
technical data from Japan, or to sell or provide the Products or technical data
to a third party, without complying with the applicable U.S. export and
re-export regulations. Upon Kyocera’s request, Universal Display will
provide Kyocera with reasonable assistance in understanding the requirements of
these regulations.
Article
11 Effective
Date
Except
for the provisions of this Article 11, this Agreement shall become effective
only when Kyocera gives a written notice to Universal Display on or before
December 31, 2008, [The confidential material contained herein has been omitted
and has been separately filed with the Commission.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives:
|
Kyocera
Corporation
|
Universal
Display Corporation
|
|
|
By: /s/ Xxxxxxx Xxxxxxxxx
|
By: /s/ Xxxxxx X. Xxxxxxxx
|
|
|
Name: Xxxxxxx Xxxxxxxxx
|
Name: Xxxxxx X. Xxxxxxxx
|
|
|
Title: Executive Officer
|
Title: President
|
|
|
General Manager,
Corporate Display Group
|
||
|
Date: July 23,
2008
|
Date: July 28,
2008
|
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Exhibit
A
Products
and Product Pricing
Products:
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
Price of
the Products shall be as follows:
[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
Universal
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