EXHIBIT 10.2
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RESTATED AMENDED MASTER SUPPLY AND DISTRIBUTION AGREEMENT
This Restated Amended Master Supply and Distribution Agreement
("Agreement") is made and entered into March 18, 2003 ("Effective Date"), by and
between PRESSTEK, Inc., a corporation organized and existing under the laws of
the State of Delaware, having an office and place of business at 00 Xxxxxxxxx
Xxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 (hereinafter "PRESSTEK"), and XEROX
Corporation, a corporation organized and existing under the laws of New York,
having an office and place of business at 000 Xxxxxxxx Xxxx, Xxxxxxx Xxx Xxxx
00000 (hereinafter "XEROX").
STATEMENT
WHEREAS: PRESSTEK has developed a direct imaging technology for the
formation of images on printing plates from digital data using ablation plate
and laser diode imaging techniques, including related software and systems (the
"PRESSTEK ProFire Technology"). PRESSTEK is in the business of manufacturing and
licensing others to manufacture products incorporating the PRESSTEK ProFire
Technology and, in cooperation with various partners, has applied PRESSTEK
ProFire Technology to printing presses, platesetters and other products. XEROX
is a major manufacturer and seller of duplicating and graphic arts products; and
WHEREAS: On February 3, 2000, the parties entered into a non-binding
Memorandum of Understanding ("MOU") pursuant to which the parties have
cooperated in the demonstration of PRESSTEK - designed products and the XEROX
DigiPath System at the DRUPA 2000 trade show; and
WHEREAS: On September 22, 2000, the parties entered into a Master
Supply and Distribution Agreement with respect to the production, marketing and
commercial distribution of three direct imaging presses and related consumables
on a co-branded basis ("Master Agreement"). The Agreement contemplated further
negotiation by the parties concerning Product support/service and other matters
associated with implementation; and
WHEREAS: On May 30, 2001, the parties amended the Master Agreement (the
"Amended Master Agreement", setting forth new terms for their on-going business
venture and setting forth terms of an Amended Service Agreement executed by the
parties effective May 11, 2001 and attached hereto as Exhibit J together with
Exhibits J-1 through J-6 thereto ("Amended Service Agreement"); and
WHEREAS: On September 19, 2001, the parties amended the Amended Master
Agreement, redefining the Territory in which XEROX would have certain
distribution rights; and
WHEREAS: On December 19, 2001, the parties again amended the Amended
Master Agreement, once again redefining the Territory in which XEROX would have
certain distribution rights for the SUN Press, and in which XEROX agreed to take
delivery of [CONFIDENTIAL TREATMENT REQUESTED] /*/ Early Customer Configuration
Units (specified therein) and XEROX's obligation to pay the $[CONFIDENTIAL
TREATMENT REQUESTED] /*/ dollar) lead time payment was relieved until such time
that XEROX orders a commercial production PAX Press; and
WHEREAS: On February 6, 2002, the parties again amended the Amended
Master Agreement, once again redefining the Territory in which XEROX would have
certain distribution rights for the SUN Press, and in which PRESSTEK agreed to
[CONFIDENTIAL TREATMENT REQUESTED] /*/ a certain [CONFIDENTIAL TREATMENT
REQUESTED] /*/ (specified therein), and PRESSTEK further agreed to install and
upgrade a certain [CONFIDENTIAL TREATMENT REQUESTED] /*/ (specified therein);
and
WHEREAS: The parties mutually desire that XEROX will completely and
totally and for all time forfeit its semi-exclusive rights to co-sell, co-market
or otherwise distribute the DocuColor 233 DI Press
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
and related Consumables and the parties further mutually desire that XEROX will
completely and totally and for all time forfeit its non-exclusive rights to
sell, market or otherwise distribute the DocuColor 400 DI Press and related
Consumables; and
WHEREAS, PRESSTEK and XEROX wish to amend, modify and restate the terms
of the Amended Master Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings, unless the context otherwise requires:
a. "Installed Presses" shall mean those PAX and SUN Presses
(as those terms are defined herein) purchased by XEROX from PRESSTEK that are
set out in Exhibit B and are, as of the Effective Date, installed at customer
locations.
b. "PAX Press" shall mean a four-color, inline sheet-fed
printing press of the B3 format size, manufactured by Adamovske Strojirny, a.s.
of Xxxxxx The Czech Republic ("Adast") incorporating on-press direct imaging of
plates using the PRESSTEK ProFire Technology and any and all presses which meet
the foregoing description during the term of this Agreement.
c. "SUN Press" shall mean a four-color, sheet-fed printing
press of the A3 format size manufactured by Ryobi Limited of Hiroshima, Japan
("Ryobi") incorporating multi-print cylinder technology and on press direct
imaging of plates using the PRESSTEK ProFire Technology hereinafter referred to
as the SUN Press and any and all presses which meet the foregoing description
during the term of this Agreement.
d. "Consumables" shall mean printing plates in roll form using
PRESSTEK's PEARLdry technology and PEARLdry cleaning towels which constitute
consumable products for use in the PAX Press and SUN Press.
e. "Products" shall mean the PAX Press, the SUN Press,
Consumables and Spares.
f. "Spares" shall mean spare parts for the PAX Press or SUN
Press, and modifications, enhancements and improvements thereto which are made
pursuant to the terms of this Agreement.
g. "XEROX" shall mean, whether or not so specified and unless
the context otherwise requires, XEROX Corporation and XEROX Companies.
h. "XEROX Company" shall mean XEROX (Europe) Limited, Fuji
XEROX Co., Ltd., Modi XEROX Co., Ltd., and any entity which is owned or
controlled directly or indirectly by XEROX Corporation or by any of the
foregoing.
2. PRIOR AGREEMENTS. This Agreement replaces, terminates and supercedes
any and all prior understandings and written agreements of the parties with
respect to the subject matter hereof, including without limitation the MOU and
the Amended Agreement. This Agreement is supplemented by
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a separate and independent Confidentiality Agreement dated July 22, 1998 and
attached hereto as Exhibit A. The Confidentiality Agreement shall govern the
exchange of all confidential information between the parties in connection with
the parties' relationship pursuant to this Agreement.
3. DISTRIBUTION AGREEMENT FEE. The parties have previously agreed that
in consideration of PRESSTEK's investment in the development and acquisition of
technology incorporated in the PAX Press and the SUN Press, XEROX shall pay
PRESSTEK a nonrefundable, noncancelable (except as expressly provided herein)
Distribution Agreement Fee, in addition to any and all other payments called for
by this Agreement. The Distribution Agreement Fee shall be paid without regard
to the quantity of Products purchased by XEROX and without regard to the payment
for such Products, and without regard to whether XEROX's distribution rights are
exclusive or semi-exclusive. The fee shall be paid, in an amount to be
calculated as follows:
a. Payment Terms. The parties have previously agreed that
XEROX shall pay PRESSTEK a Distribution Agreement Fee equal to US $[CONFIDENTIAL
TREATMENT REQUESTED] /*/ in quarterly payments of [CONFIDENTIAL TREATMENT
REQUESTED] /*/ each, payable on March 15, June 15, September 15, and December
15, in each of the calendar years 2001, 2002, and 2003. The parties acknowledge
that XEROX has made each and every such quarterly payment through 2002. XEROX
hereby acknowledges that XEROX shall pay PRESSTEK the remainder of the
Distribution Agreement Fee equal to US $[CONFIDENTIAL TREATMENT REQUESTED] /*/
in quarterly payments of $[CONFIDENTIAL TREATMENT REQUESTED] /*/ each, payable
on March 15, 2003, June 15, 2003, September 15, 2003, and December 15, 2003, in
accordance with the terms of this Agreement.
b. Performance Obligations. Notwithstanding anything stated
herein to the contrary, XEROX shall be relieved of its obligations to continue
making the Distribution Agreement Fee payment ("Distribution Fee Obligation") if
PRESSTEK, during 2003, (i) fails to make available Services to Customers at
mutually agreeable, reasonable prices and upon reasonable terms ("Service
Obligations") and/or (ii) at least twice materially breaches the objective
performance criteria set out in Section IV. 4., 5., and 6. of Exhibit J (the
"Performance Criteria"), PROVIDED, however, that XEROX's Distribution Fee
Obligations shall be so relieved only if (i) XEROX provides PRESSTEK with
written notice that PRESSTEK has failed to meet its Service Obligations and/or
Performance Criteria and (ii) PRESSTEK continues to fail to meet its Service
Obligations and/or Performance Criteria for a subsequent period longer than
thirty (30) consecutive days from the day PRESSTEK receives such notice.
4. CO-BRANDING AND TRADEMARKS. The Presses shall be co-branded and
shall carry the XEROX name and the PRESSTEK DI logo. The format in which the
XEROX name and PRESSTEK DI logo shall be applied to the PAX Press and the SUN
Press in a manner mutually agreeable to the parties. Any changes in the manner
of application of the XEROX name, PRESSTEK DI logo and/or manufacturing
company's name (as set forth in subsection (b) below) shall be subject to
written agreement between the parties.
a. No Trademark/Tradename Usage. Except as provided in the foregoing Subsection,
nothing in this Agreement shall authorize PRESSTEK or XEROX to use any trademark
and/or trade name of the other party without the prior written consent of the
other party. Any and all promotional materials used by a party in the promotion,
marketing and sale of products pursuant to this Agreement bearing a trademark of
the other party shall be subject to review and approval by the other party as to
the form and content of such use, such approval not to be unreasonably withheld,
conditioned
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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or delayed. All rights and goodwill in the trademarks of either party accruing
as a result of the use of such trademark by the other party in any country shall
inure to the benefit of the party owning the trademark, and the other party
shall acquire no rights in any such xxxx by virtue of such use pursuant to this
Agreement.
b. Manufacturer's Xxxx. In addition to the XEROX and PRESSTEK
trademarks indicated above, the manufacturing company's name shall be placed on
the non-operator side of the Press in a manner mutually agreeable to the
parties.
5. EARLY CUSTOMER CONFIGURATION UNITS. The parties acknowledge that
PRESSTEK has sold and XEROX has purchased twenty (20) early customer
configuration units of the PAX Press for a price of [CONFIDENTIAL TREATMENT
REQUESTED] /*/ each. PRESSTEK hereby acknowledges receipt of full payment for
such twenty PAX Presses and XEROX hereby acknowledges accepting delivery and
receipt of such twenty PAX Presses.
a. First [CONFIDENTIAL TREATMENT REQUESTED] /*/ PAX Press. The
parties acknowledge that PRESSTEK has [CONFIDENTIAL TREATMENT REQUESTED] /*/
XEROX a certain early customer configuration PAX Press, [CONFIDENTIAL TREATMENT
REQUESTED] /*/ serial number FPR-117502 for a purchase price of $[CONFIDENTIAL
TREATMENT REQUESTED] /*/, pursuant to the terms of the February 2, 2002
Amendment to the Amended Master Agreement. XEROX hereby acknowledges
[CONFIDENTIAL TREATMENT REQUESTED] /*/ for such PAX Press and PRESSTEK hereby
acknowledges [CONFIDENTIAL TREATMENT REQUESTED] /*/ and [CONFIDENTIAL TREATMENT
REQUESTED] /*/ of such PAX Press.
b. [CONFIDENTIAL TREATMENT REQUESTED] /*/ Presses. PRESSTEK
agrees to [CONFIDENTIAL TREATMENT REQUESTED] /*/ from XEROX those certain PAX
Presses, XEROX serial numbers, [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ and [CONFIDENTIAL TREATMENT REQUESTED]
/*/, (the "[CONFIDENTIAL TREATMENT REQUESTED] /*/ Presses") at a [CONFIDENTIAL
TREATMENT REQUESTED] /*/ price of [CONFIDENTIAL TREATMENT REQUESTED] /*/.
PRESSTEK will [CONFIDENTIAL TREATMENT REQUESTED] /*/ the foregoing amount to
XEROX by a mutually agreed payment method no later than December 31, 2003. Title
to the [CONFIDENTIAL TREATMENT REQUESTED] /*/ Presses that, on the Effective
Date, are stored in non-bonded warehouses will transfer to [CONFIDENTIAL
TREATMENT REQUESTED] /*/ upon execution of this Agreement. Title to the
[CONFIDENTIAL TREATMENT REQUESTED] /*/ Presses that, on the Effective Date, are
installed at customer locations, will transfer to PRESSTEK upon receipt by
PRESSTEK of the [CONFIDENTIAL TREATMENT REQUESTED] /*/ Press. For those
[CONFIDENTIAL TREATMENT REQUESTED] /*/ Presses that, on the Effective Date, are
located in Customer locations, [CONFIDENTIAL TREATMENT REQUESTED] /*/ will bear
the responsibility for the cost of de-installing the Presses and [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall bear the responsibility for shipping the
de-installed presses to [CONFIDENTIAL TREATMENT REQUESTED] /*/ designated
location. For those [CONFIDENTIAL TREATMENT REQUESTED] /*/ Presses that, on the
Effective Date, are located in a bonded warehouse in Amsterdam, [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall bear the responsibility to release the Presses
from the bonded warehouse and [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall
assume responsibility for, and take title to such presses upon release from the
bonded warehouse. For those [CONFIDENTIAL TREATMENT REQUESTED] /*/ Presses that
are located in a PRESSTEK-owned warehouse and for which [CONFIDENTIAL TREATMENT
REQUESTED] /*/ is paying rent, such rental fees shall immediately cease and
[CONFIDENTIAL TREATMENT REQUESTED] /*/ shall pay to [CONFIDENTIAL TREATMENT
REQUESTED] /*/ an amount equal to the monthly lease rate pro-rated for each day
of the month of March, 2003 up to and including the Effective Date.
In addition to the [CONFIDENTIAL TREATMENT REQUESTED] /*/
Presses discussed herein, on or before October 1, 2003, XEROX shall either: (a)
make available to PRESSTEK a certain PAX Press, XEROX serial number
[CONFIDENTIAL TREATMENT REQUESTED] /*/ at a transfer price of [CONFIDENTIAL
TREATMENT REQUESTED] /*/; or (b) deliver to PRESSTEK payment in the amount of
[CONFIDENTIAL TREATMENT REQUESTED] /*/. [CONFIDENTIAL TREATMENT REQUESTED] /*/
will bear the responsibility for the cost of de-installing such Press and
[CONFIDENTIAL TREATMENT REQUESTED] /*/ shall bear the responsibility for
shipping the de-installed press to [CONFIDENTIAL TREATMENT REQUESTED] /*/'s
designated location. PRESSTEK shall take title to such press upon delivery to
[CONFIDENTIAL TREATMENT REQUESTED] /*/'s designated location.
In further addition to the Repurchased Presses discussed
herein, XEROX shall, within sixty days from the Effective Date, inform PRESSTEK
whether PRESSTEK may also repurchase from
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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XEROX two additional PAX Presses: XEROX Serial Numbers [CONFIDENTIAL TREATMENT
REQUESTED] /*/ and [CONFIDENTIAL TREATMENT REQUESTED] /*/ for [CONFIDENTIAL
TREATMENT REQUESTED] /*/ each. If XEROX informs PRESSTEK that PRESSTEK may
purchase either such press, [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall
reimburse [CONFIDENTIAL TREATMENT REQUESTED] /*/ for the cost for
de-installation and shipment of such press to a [CONFIDENTIAL TREATMENT
REQUESTED] /*/-designated location, and title for such presses shall pass to
PRESSTEK upon delivery to the [CONFIDENTIAL TREATMENT REQUESTED] /*/-designated
location, PROVIDED, however, in no event shall XEROX's obligation to reimburse
PRESSTEK for the deinstallation of these two presses exceed an amount of
[CONFIDENTIAL TREATMENT REQUESTED] /*/ per press.
6. COMMERCIAL PRODUCTION.
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(a) XEROX may market and sell Remarketed Presses in accordance with
Section 13 (the "Remarketed Presses"). The parties mutually agree, in exchange
for the mutual consideration set out herein, that XEROX, with the exception of
the Remarketed Presses, will completely and totally and for all time forfeit its
semi-exclusive rights to co-sell, co-market or otherwise distribute the
DocuColor 233 DI Press (as those rights are now in effect as set out in the
Amended Agreement, and any amendments thereto). Upon the Effective Date, XEROX,
with the exception of the Remarketed Presses, shall have no rights to sell,
market or otherwise distribute the DocuColor 233 DI anywhere in the world.
(b) XEROX may market and sell Remarketed Presses in accordance with
Section 13. The parties further mutually agree for the consideration set out
herein, that XEROX, with the exception of the Remarketed Presses, will
completely and totally and for all time forfeit its non-exclusive rights to
sell, market or otherwise distribute the DocuColor 400 DI Press (as those rights
are now in effect as set out in the Amended Agreement, and any amendments
thereto). Upon the Effective Date, XEROX, with the exception of the Remarketed
Presses, shall have no rights to sell, market or otherwise distribute the
DocuColor 400 DI anywhere in the world.
(c) With the exception of the Remarketed Presses and the Consumables
that XEROX has in its inventory on the Effective Date, XEROX shall refrain from
(a) selling or offering for sale any Product; and/or (b) advertising or
otherwise holding itself out as an authorized dealer or retailer of PRESSTEK
products. XEROX may continue to sell only the Consumables that are in its
inventory on the Effective Date only to Customers of Installed Presses.
(d) In exchange for XEROX forfeiting its rights, as discussed in this
section, and as consideration to XEROX for waiving its rights as discussed in
this Agreement and for entering into this Restated Agreement, PRESSTEK will pay
to XEROX [CONFIDENTIAL TREATMENT REQUESTED] /*/ by a mutually agreed payment
method no later than December 31, 2003.
7. DELIVERY/PASSAGE OF TITLE & RISK OF LOSS.
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(a) Sales to XEROX. Title and risk of loss for all Spares shall pass to
XEROX (a) [CONFIDENTIAL TREATMENT REQUESTED] /*/ in the case of shipments made
by sea, and (b) [CONFIDENTIAL TREATMENT REQUESTED] /*/ in the case of all
shipments by road or rail which are not intended for lading on any vessel, and
(c) in the event of shipment by air, pursuant to the parties' subsequent written
agreement. PRESSTEK shall use such carriers, freight forwarders, and Customhouse
brokers as specified by XEROX. PRESSTEK will book freight on a "Freight Collect,
Third Party Billing to XEROX" basis, with service from the point of title
transfer as defined above to the final door of destination (eg. For ocean, port
to door service), allowing the carriers to xxxx XEROX directly for the entire
move. XEROX shall act as the importer of record for the purposes of U.S. Customs
clearance, and shall pay all duties, taxes, and brokerage fees associated with
the importation of the goods. PRESSTEK
will provide such technical information as required by XEROX for the purposes of
Customs classification and all necessary regulatory declarations. If requested
by
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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XEROX, PRESSTEK may occasionally prepay freight and transport charges to the
Spares final destination using carriers of PRESSTEK's choosing. PRESSTEK shall
itemize its costs for such freight/transportation on its invoice to XEROX,
separate from the Spares price, and XEROX shall reimburse PRESSTEK at PRESSTEK's
cost without markup or additional fees or charges. Terms of sale and delivery
for domestic (in-country) sales will be [CONFIDENTIAL TREATMENT REQUESTED] /*/
subject to the further terms and conditions of a separate agreement to be
negotiated by the parties. PRESSTEK shall furnish XEROX and/or XEROX' designated
Customhouse broker and/or freight forwarder with a pro forma or commercial
invoice, showing the price to be paid by XEROX for each shipment of Spares, and
separately itemizing any freight, insurance, or other transportation charges
which PRESSTEK may have prepaid on XEROX' behalf. Such freight, insurance or
other transportation charges shall be stated at PRESSTEK's cost, without any
markup or other charge. The invoice shall be addressed to the XEROX company
which issued the purchase order for the Spares, or as directed by XEROX
(b) Repurchased Presses. Delivery and passage of title for Repurchased
Presses will be governed by the terms set out in Section 5 (b) of this
Agreement.
8. WARRANTY.
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a. Products/Parts. For each Press that has been delivered to
customer locations pursuant to the Amended Agreement, PRESSTEK warrants and
represents to XEROX that for a period of [CONFIDENTIAL TREATMENT REQUESTED] /*/
days from the date of PRESSTEK's installation at the customer location, but in
no event more than [CONFIDENTIAL TREATMENT REQUESTED] /*/ months after the date
of shipment to XEROX, whichever is sooner, Presses shall be free from material
defects in materials and workmanship and shall substantially perform in
accordance with the Specifications for such Press. PRESSTEK shall repair or
replace any defect in Product parts, without charge for the parts, for a period
of [CONFIDENTIAL TREATMENT REQUESTED] /*/ from the date of installation at the
customer location but in no event more than [CONFIDENTIAL TREATMENT REQUESTED]
/*/ after the date of shipment to XEROX for such Press, whichever is sooner, and
PRESSTEK's standard labor charges shall apply to such repair/replacement
services performed following expiration of the [CONFIDENTIAL TREATMENT
REQUESTED] /*/ period set forth above. In fulfillment of the parts warranty
obligation, PRESSTEK may, at its option and expense, replace the entire system
(or sub-system) if such replacement is deemed more cost effective and/or more
expeditious. With respect to the early customer configuration PAX Presses
installed at customer locations (i.e., the five (5) PAX Presses that have XEROX
serial numbers [CONFIDENTIAL TREATMENT REQUESTED] /*/, [CONFIDENTIAL TREATMENT
REQUESTED] /*/ and [CONFIDENTIAL TREATMENT REQUESTED] /*/, the warranty set
forth in this Section 8(a) shall commence following expiration of a
[CONFIDENTIAL TREATMENT REQUESTED] /*/ period from the date of installation.
b. Additional Warranties. (i) PRESSTEK further warrants and
represents that: (i) it has good and marketable title to all Product(s)
delivered hereunder and that all units of Product(s) shall be free and clear of
all liens, encumbrances, security interests; and (ii) it has the right to convey
to XEROX the rights respecting Product(s) granted in this Agreement; and (iii)
software and firmware shall be free in all material respects from program errors
and conform with applicable Specifications for a period of one [CONFIDENTIAL
TREATMENT REQUESTED] /*/ from the date of installation at the customer location
but in no event more than [CONFIDENTIAL TREATMENT REQUESTED] /*/ months after
the date of shipment to XEROX for such Press, whichever is sooner; and (iv)
Software/firmware media, if any, shall be materially free from defects in
workmanship and materials for a period of [CONFIDENTIAL TREATMENT REQUESTED] /*/
months from delivery to the customer location; (v) except as otherwise agreed by
the parties, Products shall be manufactured from new parts; (vi) Consumables
shall be free from material defects in materials and workmanship and shall
substantially
perform in accordance with the Specifications for a period of [CONFIDENTIAL
TREATMENT REQUESTED] /*/ from date of shipment; and (vii) Spares shall be free
from material defects in materials and workmanship for a period of [CONFIDENTIAL
TREATMENT REQUESTED] /*/ months after delivery.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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(ii) XEROX warrants and represents that: (i) it has good and
marketable title to all Returned Presses delivered hereunder and that all
Returned Presses shall be free and clear of all liens, encumbrances, security
interests; and (ii) it has the right to convey to PRESSTEK the rights respecting
Returned Presses granted in this Agreement.
c. Systemic Defects Definition. "Systemic Defects" shall mean
a defect in the design, materials, or manufacturing which occurs in identical or
substantially similar form or from a substantially similar cause (i) in at least
twenty (20) percent of the units of Product delivered, when less than 100 units
are delivered in any particular sixty (60) day period; or (ii) in at least ten
(10) percent of the units of Product delivered, when 100 or more units are
delivered in any sixty (60) day period; or (iii) more than ten (10) percent of
the units of Product(s) which are in XEROX' inventory or which are installed at
customer locations.
d. Systemic Defects. Notwithstanding the warranty requirements
and conditions set forth in this Section, during the period of time that
PRESSTEK has Service Obligations, PRESSTEK will undertake without charge and
without delay to promptly remedy any Systemic Defect in all affected Product(s)
in inventory or in the field, by delivering to XEROX a replacement Product(s) or
otherwise correct the defect as agreed upon by the parties. PRESSTEK shall not
be required to cure any Systemic Defect for any Product(s) which have been
subjected to accident, negligence, misuse, alteration, modification, tampering
or causes other than ordinary use. At XEROX' request, PRESSTEK shall provide to
XEROX kits containing the necessary software or hardware to correct the Systemic
Defect for all affected units of Product(s) or, if XEROX reasonably believes it
is probable that the Systemic Defect will affect at least substantially all
units of Product(s) then located either at customer locations or in XEROX'
inventory, PRESSTEK shall provide at its' expense XEROX with the kits for all
such units of Product(s).
e. Warranty Obligations. During the applicable warranty
periods set forth herein, the liability of PRESSTEK under the warranty set forth
in this Section shall be limited to the following: (i) as PRESSTEK may elect,
with respect to hardware components of the Products, within fifteen business
days of XEROX' notice of the defect or nonconformity and at PRESSTEK's sole
expense, either (a) to repair or make nonconforming parts or Products
conforming; or (b) to replace nonconforming parts or Products with conforming
parts or Products; and (ii) with respect to the software portion of the Products
and at PRESSTEK's sole expense, PRESSTEK shall use best efforts based on the
severity of the problem in accordance with industry standards to correct errors
or provide workarounds or obtain such services from third party software vendors
within the time periods set forth in Exhibit J.
f. Warranty Disclaimer. This warranty shall apply only to
Presses which have been installed by PRESSTEK or XEROX authorized personnel and
shall not apply to Products which have been misused or used in an unauthorized
or improper manner without following normal operating procedures. The foregoing
warranty shall not apply to adjustment, modifications, replacements or repair,
or increases in maintenance service time caused by: electrical work external to
the Presses or components, the attachment of accessories or other devices or
software not furnished or authorized by PRESSTEK, or the failure to properly
maintain the same where the problem arises from XEROX-supplied components or
software; accident, transportation, neglect or misuse; alterations, which shall
include, but not be limited to, installation or removal features or any other
modification, whenever any of the foregoing is preformed by entities or persons
other than PRESSTEK or authorized by PRESSTEK; failure to provide and maintain a
suitable installation environment, with all facilities prescribed by the
appropriate specifications therefore (including, but not limited to, failure of,
or failure to provide, adequate electrical power, air conditioning or humidity
control) or from use of supplies or materials not meeting such specifications;
the
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use of the Presses for other than the purposes for which they were designed;
service of Presses or components which have been modified, removed, installed or
re-installed by someone other than PRESSTEK's support personnel or its
authorized representatives (including without limitation XEROX); the Press has
not been properly installed, used, and maintained in accordance with the
operating instructions and maintenance manuals supplied by PRESSTEK; XEROX'
failure to notify PRESSTEK in writing during the warranty period with details on
any defect or error in the Product; the Product has been modified, changed,
repaired, reconfigured or adapted in any manner whatsoever without the express
written consent of PRESSTEK; and evidence of physical abuse or other
catastrophic causes external to the Press has occurred resulting in the
necessity for repair or replacements, to the extent the foregoing is not caused
by PRESSTEK, its representatives, agents and/or independent contractors.
g. New Warranties. All Product(s) repaired or replaced by
PRESSTEK under this Section shall be subject to XEROX' inspection and acceptance
in accordance with the provisions of this Agreement, and if accepted, shall be
extended new warranties in accordance herewith.
h. Limitation. PRESSTEK MAKES NO REPRESENTATION OR WARRANTY
WITH RESPECT TO THE PRODUCTS SUBJECT TO THIS AGREEMENT OTHER THAN THOSE SET
FORTH IN THIS SECTION. THE WARRANTY STATED HEREIN IS EXPRESSLY IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS
OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
SUCH WARRANTY CONSTITUTES THE ONLY WARRANTY MADE BY PRESSTEK WITH RESPECT TO
THIS AGREEMENT OR THE PRODUCT TO BE SUPPLIED HEREBY.
i. REPURCHASED PRESSES. WITH THE EXCEPTION OF THE WARRANTIES
SET OUT IN SECTION 8 B (II), ABOVE, THE PARTIES HEREBY ACKNOWLEDGE THAT THE
REPURCHASED PRESSES PURCHASED BY PRESSTEK FROM XEROX WILL BE SOLD "AS IS",
WITHOUT ANY WARRANTY FROM XEROX WHATSOEVER, AND XEROX HEREBY DISCLAIMS ANY AND
ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND
EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
9. EXCLUSIVITY. Except with regard to the Refurbished Presses, which
XEROX may market and sell in accordance with Section 13, and except with regard
to Consumables that XEROX has in its inventory on the Effective Date, which
XEROX may market and sell in accordance with Section 6 (c), upon the Effective
Date, XEROX shall: (a) have no right to purchase and resell the PAX Press and
associated Consumables;(b) have no right to purchase and resell the SUN Press
and associated Consumables; and (c) terminate any and all marketing activities
associated with the Products. PRESSTEK shall have the exclusive right to
distribute Consumables to end-user customers who purchased a PAX and or SUN
Press from XEROX. For a period of five (5) years from the Effective Date,
PRESSTEK shall make Consumables available at reasonable prices and terms to
end-user customers who purchased a PAX and or SUN Press from XEROX .
10. SERVICE AND DOCUMENTATION. PRESSTEK will provide Service to certain
XEROX customers in accordance with the terms of the Restated Service Exhibit,
attached hereto as Exhibit J. PRESSTEK shall provide to XEROX, at no cost, all
engineering drawings and documentation (by part number) which, in XEROX'
reasonable opinion, are necessary or appropriate to fulfill XEROX' service
obligations for the Product(s), at such time as XEROX assumes service
obligations in accordance with the terms set out in the Restate Service
Agreement.
8
11. SOFTWARE/FIRMWARE LICENSE. With regard only to the Installed
Presses, XEROX and XEROX Companies shall have the worldwide, perpetual,
non-transferable, royalty-free right and license to distribute, market, lease
and sublicense the Installed Press operating software and firmware encompassed
within such Installed Presses for internal use only in connection with such
Installed Press, by itself or through XEROX-authorized dealers or distributors,
where and when, and under terms and conditions as determined by XEROX and XEROX
Companies, in connection with the marketing of the product(s). The license shall
be a nonexclusive, perpetual, internal use license to use the object code
version of the software or firmware on the Installed Presses, and upon XEROX'
election to assume responsibility for servicing Products pursuant to the terms
of the Amended Service Agreement, the foregoing license will extend to, and
PRESSTEK will provide to XEROX, any and all diagnostic software used to service
the Installed Presses. With regard only to the Installed Presses, XEROX and
XEROX Companies shall have the worldwide, perpetual, non-transferable,
royalty-free right and license to distribute, reproduce, translate and
sublicense the Installed Press diagnostic software that PRESSTEK may develop for
the Installed Presses for internal use only in connection with providing Service
for such Installed Press, by itself or through XEROX-authorized dealers or
distributors, where and when, and under terms and conditions as determined by
XEROX and XEROX Companies. The licenses granted in this Agreement extends to and
includes Updates and Maintenance Modifications. PRESSTEK will provide XEROX
written notification of pending new Updates and Maintenance Modifications
together with the availability thereof sufficiently in advance of publication in
order for XEROX to react in a timely manner. Neither XEROX, its dealers,
distributors or the customer may copy, reproduce, sublicense or modify the
software or firmware embedded in the Installed Presses without PRESSTEK's
written consent. Neither XEROX, its dealers, distributors or the customer shall
reverse engineer, disassemble, decompile or analyze the source code of the
software or firmware. Neither XEROX, its dealers, distributors nor any customer
shall remove or alter any copyright or other intellectual property notice placed
in the software or firmware.
12. INSTALLATION, SERVICE SUPPORT AND TRAINING. PRESSTEK shall have no
obligation to provide customer installation, technical support and training.
13. [CONFIDENTIAL TREATMENT REQUESTED] /*/ OF PRESSES. In the event
Product(s) are returned to XEROX after XEROX' sale, lease, or license thereof,
XEROX has the right, without payment or remuneration of any kind or type to
PRESSTEK, to use, [CONFIDENTIAL TREATMENT REQUESTED] /*/ and thereafter remarket
such Product(s) PROVIDED, however, that if XEROX chooses to remarket such
Product(s), it must first give PRESSTEK the right of first refusal to repurchase
such Product(s) at prices and terms no less favorable than XEROX has offered to
other potential purchasers of the Product(s) who unaffiliated with XEROX.
PRESSTEK shall have [CONFIDENTIAL TREATMENT REQUESTED] /*/ business days from
the date XEROX informs PRESSTEK of XEROX's intent to sell to a potential
purchaser of the Product(s) to exercise its right of first refusal to repurchase
such Product(s). PRESSTEK's failure to respond to XEROX within [CONFIDENTIAL
TREATMENT REQUESTED] /*/ business days will constitute PRESSTEK's rejection of
the offer. Such processes may include by way of illustration and not of
limitation disassembly of Product(s) to a standard determined by XEROX, the
addition of new, used, or reprocessed components cleaning, refinishing, and
retrofitting Product(s) with all applicable retrofits. However, XEROX' right to
remarket Product(s) is not contingent upon XEROX' [CONFIDENTIAL TREATMENT
REQUESTED] /*/ of the Product(s) and such [CONFIDENTIAL TREATMENT REQUESTED] /*/
by XEROX shall be deemed a repair of the Product(s). Such [CONFIDENTIAL
TREATMENT REQUESTED] /*/ and thereafter [CONFIDENTIAL TREATMENT REQUESTED] /*/
of Product(s) by XEROX, when such [CONFIDENTIAL TREATMENT REQUESTED] /*/ and
thereafter [CONFIDENTIAL TREATMENT REQUESTED] /*/ is performed consistent with
the terms of this Agreement, shall not be deemed nor constitute a violation by
XEROX of any of PRESSTEK's rights, including but not limited to
PRESSTEK's patents rights respecting the Product(s). PRESSTEK shall have no
warranty obligations as to any unit of Product(s) [CONFIDENTIAL TREATMENT
REQUESTED] /*/ by XEROX. Included in such rights is the
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
9
right to re-license the software component without payment of any additional
fees or royalties to PRESSTEK. PRESSTEK will provide Press [CONFIDENTIAL
TREATMENT REQUESTED] /*/ services to XEROX on a time and materials basis, based
on PRESSTEK's prevailing rates. Upon written request by XEROX to PRESSTEK for
[CONFIDENTIAL TREATMENT REQUESTED] /*/ services, PRESSTEK will provide XEROX a
written cost estimate for work required for the final state of the [CONFIDENTIAL
TREATMENT REQUESTED] /*/ required, including location of work to be conducted,
within [CONFIDENTIAL TREATMENT REQUESTED] /*/ days of receipt of such request.
Work will commence on PRESSTEK's receipt of a XEROX purchase order. PRESSTEK
will use commercially reasonable efforts to minimize costs and time of such
services. All costs including transport shall be borne by XEROX. Payment shall
be received by PRESSTEK within [CONFIDENTIAL TREATMENT REQUESTED] /*/ days from
delivery of a correct invoice.
14. TECHNOLOGY IMPROVEMENTS. Unless otherwise directed by the end user
of such a press, PRESSTEK shall complete the U.L. upgrading for all Installed
Presses for which a U.L. upgrade has not been performed. Except for the U.L.
upgrades discussed in this Section 14, PRESSTEK shall have no obligation to
provide engineering changes and/or improvements in the Presses upon request by
XEROX.
15. COMMERCIAL COOPERATION. The parties will negotiate a mutually
agreeable business process for administering and implementing this Agreement.
16. INDEMNITY.
--------------
a. By PRESSTEK. PRESSTEK agrees, at its expense, to defend,
indemnify and hold XEROX, XEROX Companies, and their respective authorized
resellers, customers and officers, directors, employees and representatives
("Indemnities") harmless from any suit claim, demand, cause of action or
proceeding asserted by a third party against any of the indemnities alleging (i)
that any Product(s) violates any applicable safety or regulatory standard or has
caused personal injury (including death) or damage to property or (ii) the
infringement or misappropriation of such third party's intellectual property
rights (a "Claim"), provided that PRESSTEK is notified of the Claim by XEROX
within a reasonable time after XEROX learns of it, is given all reasonable
assistance by XEROX necessary for PRESSTEK to perform its obligations in respect
of the Claim and is given the sole right to control the defense and settlement
of the Claim.
b. Injunction; Disclaimer. Should the Products become, or in
PRESSTEK's opinion, be likely to become, the subject of a claim for infringement
under this section, PRESSTEK may (i) at its own expense and option, either
procure for XEROX the right to continue using such Subject Presses or replace
the same with non-infringing components having substantially equivalent features
and functionality, or modify the system so that it becomes non-infringing with
substantially equivalent features and functionality, or (ii) at XEROX' option,
remove and return the Subject Press and refund to XEROX a portion of the
payments received by PRESSTEK on the then aggregate depreciated value of the
Subject Press purchased under this Agreement (after deducting the time for
XEROX' customers' use and operation of the Subject Press prior to the time of
any final determination of infringement against PRESSTEK). PRESSTEK shall not be
obligated to defend or be liable for costs and/or damages under this section if
the alleged infringement arises out of a combination with or an addition to
PRESSTEK's software or equipment of equipment, devices or software not supplied
by PRESSTEK or with PRESSTEK's knowledge and consent, or from a modification,
service or support of the equipment or software after delivery by any person
other than PRESSTEK and/or its representatives, agents and independent
contractors. XEROX shall have the option to procure continued use at its own
expense.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
10
c. By XEROX. XEROX shall indemnify and hold PRESSTEK and its
officers, directors, employees and representatives harmless from all claims,
losses, and damages which may arise from XEROX' installation or support of the
Products, including claims of customers based on misrepresentations made by
XEROX, inadequate installation, support or assistance by XEROX or claims by a
XEROX customer alleging PRESSTEK had or has an obligation to provide Service to
the customer where no such obligation exists where such claim arises from
XEROX's alleged act or omission. XEROX shall, at its expense, indemnify, hold
harmless and, at the PRESSTEK's request, defend PRESSTEK and its manufacturers,
from and against any and all loss, cost, liability or expense (including costs
and reasonable fees of attorneys and other professionals) arising out of or in
connection with XEROX' performance under this Agreement to the extent caused by
any negligent act or omission or willful misconduct of XEROX or XEROX' employees
or independent contractors provided that XEROX is notified of the Claim by
PRESSTEK within a reasonable time after PRESSTEK learns of it, is given all
reasonable assistance by PRESSTEK necessary for XEROX to perform its obligations
in respect of the Claim and is given the sole right to control the defense and
settlement of the Claim.
17. LIMITATION OF LIABILITY. EXCEPT FOR THE PARTIES' OBLIGATIONS OF
INDEMNITY AS EXPRESSLY PROVIDED IN SECTION 16 OF THIS AGREEMENT AND THE
OBLIGATIONS SET OUT IN THE CONFIDENTIAL DISCLOSURE AGREEMENT, WHICH SHALL BE
GOVERNED BY THEIR TERMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
OR ANY OTHER PERSON FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR
OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS OR DAMAGES TO ANY PARTY'S BUSINESS REPUTATION OR GOODWILL, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT
LIABILITY OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS, WHETHER OR NOT THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY,
AND IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS OF
ANY KIND ARISING IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS, OR ANY OTHER
MATERIALS OR SERVICES FURNISHED HEREUNDER EXCEED THE GREATER OF US [CONFIDENTIAL
TREATMENT REQUESTED] /*/ OR THE PURCHASE PRICE OF PRODUCTS (INCLUDING THE
TECHNOLOGY DISTRIBUTION FEE) OUT OF WHICH SUCH CLAIM ARISES. XXXXXXX 00,
XXXXXXXXX, XXXXXX THE EXCLUSIVE LIABILITY AND OBLIGATION OF PRESSTEK, AND THE
EXCLUSIVE REMEDY OF XEROX, WITH RESPECT TO ANY CLAIM, SUIT OR PROCEEDING
INVOLVING ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OF ANY
THIRD PARTY IN CONNECTION WITH THE SALE AND DISTRIBUTION OF THE PRODUCTS.
18. TERM AND TERMINATION.
-------------------------
a. Term. The term of this Agreement shall commence upon the
Effective Date and continue in full force and effect until [CONFIDENTIAL
TREATMENT REQUESTED] /*/ and shall not renew. The provisions of this Section
shall not apply to the sale of Spares, which shall be governed solely by the
provisions of Exhibit J.
b. Termination for Cause. In addition to XEROX' rights under
Section 8 (c), either party may terminate this Agreement, or any Purchase Order
issued under this Agreement effective immediately upon written notice of
termination to the other party in any of the following events:
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
11
(i) If the other party materially breaches this
Agreement and such breach, if curable, is not cured within sixty (60)
days after written notice of breach by the terminating party;
(ii) If the other party's performance is delayed for
more than ninety (90) days for any reason, including Force Majeure
delays; or
(iii) If a petition for relief under applicable
bankruptcy regulations is filed by or against the other party, or the
other party makes an assignment for the benefit of creditors, or a
receiver is appointed to manage its assets, and such petition,
assignment is not dismissed, vacated or terminated within ninety (90)
days. To the extent applicable law prevents the non-terminating party
from terminating this Agreement as described above, then the parties
shall have only those rights and remedies permitted by applicable law,
including the United States Bankruptcy Act, including but not limited
to 11 U.S.C. Section 365. Any such termination shall be automatically
effective at the end of any applicable notice period if any.
c. Continuity of Supply. PRESSTEK shall have no obligation to
supply Product(s) to XEROX beyond the term of this Agreement.
d. Liability Limitation. Except as otherwise set forth in this
Agreement or with respect to obligations which survive its termination or
expiration (as applicable), XEROX' sole liability to PRESSTEK shall be for the
payment of any balance due and owing for conforming Products delivered prior to
the effective date of termination or expiration or within the firm forecast
period, and XEROX shall have no further liability whatsoever hereunder,
including without limitation or inventory, raw materials, work in process,
components, or any other expenses or damages. In the event of any breach the
nonbreaching party reserves all rights to pursue any and all legal remedies
available for such breach subject to the terms hereof.
e. Continuity of Service. PRESSTEK will provide Service to
certain XEROX Customers in accordance with the terms of the Restated Service
Agreement. XEROX shall retain all rights and documentation necessary to continue
servicing Product(s) sold and/or licensed hereunder prior to any breach and the
right to dispose of its inventory of Product(s), subject to all payment
obligations to PRESSTEK.
f. Survival. Any termination of this Agreement shall neither
terminate any rights which by their nature survive the termination of this
Agreement, nor serve to eliminate any liability arising out of conduct prior to
the actual date of termination, including any uncontested accrued payment
obligation, and either party may, following such termination, pursue such
remedies as may be available with respect to such liabilities. Any and all such
payments accrued hereunder as of the date of termination shall remain due and
payable in accordance with the terms hereof. Termination of this Agreement shall
immediately terminate all licenses hereunder to the software or firmware within
the Presses, except for licenses to the software or firmware for Presses which
have been previously paid for by XEROX or Presses previously sold to customers.
19. RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement
shall be deemed to (a) make either party or any employee of such party the
agent, employee, joint venturer or partner of the other party; pr (b) provide
either party or any employee of such party with the power or authority to act on
behalf of the other party or to bind the other party to any contract, agreement
or arrangement with any other person. During the term of this Agreement, if the
term "partnership",
12
"partner" or "development partner" or the like is used to describe the parties'
relationship, XEROX and PRESSTEK agree to make it clear to third parties that
these terms refer only to the spirit of cooperation between them and neither
describe, nor expressly or implicitly create, the legal status of partners or
joint venturers. All personnel employed or otherwise engaged by either party
shall be the agents, servants, and employees of such party only, and the other
party shall incur no obligations or liabilities, express or implied, by reason
of the conduct of such personnel.
20. WAIVER. Waiver by either party hereto of any breach or default by
the other party if any of the terms and conditions of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived.
21. COSTS AND EXPENSES. Except as otherwise provided in this Agreement,
each party hereto shall be responsible for its own expenses incurred in
connection with the performance of its obligations under such agreements.
22. ENTIRE AGREEMENT. This Agreement, together with all Exhibits,
represents the entire understanding and agreement between the parties hereto
with regard to the Products and supersedes all prior negotiations,
representations, and agreements made by and between the parties. No alteration,
amendment or modification of any of the terms or provisions of this Agreement
shall be valid unless made pursuant to an instrument in writing signed by each
of the parties hereto; provided however, that the waiver by either party hereto
of compliance by the other party with any provision hereof or of any breach or
default of such other party need by signed only by the party waiving such
provision, breach or default.
23. GOVERNING LAW. This Agreement and the Confidentiality Amended
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New York without regard to its conflict of laws principles. Any
action to enforce the terms of this Agreement shall take place in the courts
located in the State of New York and the parties consent to the venue and
jurisdiction of such courts. The parties specifically agree that the 1980 United
Nations Convention on Contracts for the International Sale of Goods, as such may
be amended from time to time, shall not apply to this Agreement. The definitions
set forth in the Incoterms of the International Chamber of Commerce, 2000
edition, shall be controlling.
24. NON-ASSIGNMENT. A party to this Agreement may not assign its rights
and obligations under this Agreement without the consent of the other party;
provided, however, that each party may assign this Agreement in connection with
(a) the sale of all or substantially all of the capital stock or assets of such
party, or (b) the acquisition by a third party of a party to this Agreement by
merger, consolidation, reorganization or other business combination whereby more
than fifty (50) percent of the voting securities of a party to this Agreement
are sold or transferred to a third party (a "Business Combination").
Notwithstanding the foregoing, in the event of a [CONFIDENTIAL TREATMENT
REQUESTED] /*/ XEROX shall have the right to [CONFIDENTIAL TREATMENT REQUESTED]
/*/ and as further provided in Section 18(d). Both parties agree, however, that
PRESSTEK may delegate a portion of its obligations pursuant to this Agreement to
its subcontractors and manufacturers, provided that PRESSTEX contractually
obligates and guarantees the performance of the foregoing and indemnifies XEROX
against any and all claims, losses, demands, causes of action or other liability
which may arise in connection with such delegation, subject to the terms of this
Agreement, including sections relating to warranty, indemnity and limitation of
liability.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
13
25. NOTICES. All notices provided for in this Agreement shall be
effective when they are served either by personal delivery, or sent by letter by
overnight courier service with acknowledgment of receipt required, or sent by
facsimile to the receiving party at the following address:
If to PRESSTEK: If to XEROX:
--------------- ------------
Xx. Xxxxxx Xxxxxx, President Xxx Xxxxxx and Chief
Executive Officer 800 Xxxxxxxx Road
PRESSTEK, Inc. Xxxxxxx XX 00000
00 Xxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Fax: (000) 000-0000 With a copy to:
With a copy to: Xxxxxxx Xxxx, Esq.
XEROX Square
Xxxxx Xxxxxxx, Esq. 000 X. Xxxxxxx Xxx.
00 Xxxxxxxxx Xxxxx Xxxxxxxxx XX 00000
Xxxxxx, Xxx Xxxxxxxxx 00000
Fax: (000) 000-0000
or such other addresses either party shall hereinafter designate in writing to
the other party.
26. INVALIDITY OF PROVISIONS. If any of the provisions of this
Agreement shall contravene the laws of any country, it is agreed that such
invalidity or illegality shall not invalidate the whole agreement, but such
agreement shall be construed as if it did not contain the provisions claimed or
held to be invalid or illegal in the particular jurisdiction concerned, insofar
as such construction does not materially affect the substance of such agreement,
and the rights and obligations of the parties hereto shall be construed and
enforced accordingly. In the event, however, that such claimed invalidity or
illegality shall substantially alter the relationship between the parties hereto
materially affecting adversely the interest of either party in such
jurisdiction, then the parties hereto shall negotiate an alternative provision
not conflicting with such laws so as to maintain, to the degree reasonably
possible, the business and economic benefits and liabilities of such agreement
as initially established. If such invalidity or illegibility is such that it is
not possible to reasonably restore the business and economic benefits and
liabilities of the parties, then the party whose interests are adversely
affected shall have the right to terminate that portion of this Agreement as is
materially impacted by such invalidity or illegibility.
27. ARBITRATION/RELEASE OF CLAIMS.
----------------------------------
a. In the event of any dispute, controversy or claim arising out of, in
connection with, or in relation to this Agreement or breach thereof, the parties
shall attempt to resolve such matter by means of mediation between and among the
senior executives of PRESSTEK and XEROX. In the event such mediation is
unsuccessful after 60 days, then any such dispute, controversy or claim arising
out of, in connection with, or in relation to this Agreement or breach thereof
(except for claims for which equitable relief is sought or claims related to
infringement) shall be settled by arbitration in accordance with the
14
rules of the American Arbitration Association then in force. The parties agree
to (i) appoint an arbitrator who is knowledgeable in and familiar with the
printing and imaging industry, and instruct the arbitrator to follow substantive
rules of law; (ii) require the testimony to be transcribed; and (iii) require
the award to be accompanied by findings of fact and a statement of reasons for
the decision. The arbitrator shall have the authority to permit discovery, to
the extent deemed appropriate by the arbitrator, upon request of a party. The
arbitrator shall have no power or authority to add to or detract from the
written agreement of the parties. All costs and expenses, including attorneys'
and the arbitrator's fees, of all parties incurred in any dispute which is
determined and/or settled by arbitration pursuant to this section shall be borne
equally by the parties. Except where clearly prevented by the area of dispute,
both parties agree to continue performing their respective obligations under
this Agreement while the dispute is being resolved. Any award shall be final,
binding and conclusive upon the parties and a judgment rendered thereon may be
entered in any court having jurisdiction thereof. This Section shall not limit
the right of any party to xxx for injunctive relief, for a breach of the
confidential obligations under the Confidentiality Agreement, for indemnified
matter or a violation of the license rights granted herein. Arbitration shall be
held in New York, New York.
b. The parties hereby release and agree to hold the other party and all
of its officers, agents, directors, supervisors, employees, representatives and
their successors and assigns and all persons acting by, through, under, or in
concert with any of them harmless for any and all controversy or claim that has
or may have accrued against the other during the term of, and arising out of,
the Amended Agreement, up to and including those claims that may have arisen on
the Effective Date.
28. Export Control. PRESSTEK and XEROX shall comply in all material
respects with all applicable laws and regulations respecting the export,
directly or indirectly, of any technical data acquired from the other under this
Agreement or any Product(s) utilizing any such data to any country the laws or
regulations of which at the time of export, require an export license or other
government approval, including but not limited to first obtaining such license
or approval.
29. NONPUBLICITY.
(a) Upon the execution of this Agreement, the parties will endeavor to
issue a joint press release that is mutually acceptable.
(b) Either party may (i) make any news release, public announcement,
denial or confirmation of this Agreement or its subject matter, or (ii)
advertise or publish any facts relating to this Agreement where such new
release, public announcement, denial or confirmation of this Agreement or its
subject matter, or advertisement or publishing of facts relating to this
Agreement are required by applicable rules, policies, practices and procedures
of the Securities and Exchange Commission, National Association of Securities
Dealers, Inc., other authority or exchange applicable to either party.
(c) Except as set out in Section 29 (b), neither party shall (i) make
any news release, public announcement, denial or confirmation of this Agreement
or its subject matter, or (ii) advertise or publish any facts relating to this
Agreement, without the prior written consent of the other party with respect to
the content of any of the foregoing, provided, however, that the party seeking
the consent of the other party need only give the other party 24 hours to review
any such news release, public announcement, denial or confirmation of this
Agreement and provided that the consent of the other party cannot be
unreasonably withheld.
15
30. FORCE MAJEURE. Neither party shall be liable or deemed to be in
default for any delay or failure in performance under this Agreement or
interruption of services resulting directly or indirectly from acts of God,
allocation of parts and components due to civil or military authority, war,
riots, civil disturbances, accidents, fire, earthquakes, floods, strikes,
lock-outs, labor disturbances, foreign or governmental order, or any other cause
beyond the reasonable control of such party. The foregoing shall not apply to
any payment obligation of a party.
31. COUNTERPARTS. This Agreement may be signed in counterparts and each
counterpart shall be considered an original document.
32. EXHIBITS. The following Exhibits are attached and incorporated by
reference in this Agreement:
EXHIBIT A: Confidential Disclosure Agreement dated July 22, 1998
EXHIBIT B: Installed Presses
EXHIBIT J: Restated Service Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amended Master
Supply and Distribution Agreement to be executed, in duplicate, by their duly
authorized officers or representatives.
PRESSTEK, INC. XEROX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
------------------------------ ---------------------------------
Title: President and CEO Title:
--------------------------- ------------------------------
Date: March 18, 2003 Date: March 18, 2003
---------------------------- -------------------------------
16
EXHIBIT A: Confidential Disclosure Agreement dated July 22, 0000
XXX XXX XXXXXXXXXXXX
--------------------
DISCLOSURE AGREEMENT
--------------------
XEROX CORPORATION ("Xerox") of Stamford Connecticut, and PRESSTEK
("Contractor") as parties hereto hereby agree as follows:
1. To further the business relationship between the parties, it is
necessary and desirable that the parties hereto disclose to each other
confidential information (hereinafter referred to as "Information") consisting
of technical or business information related to digital color printing,
including any or all of the following related thereto: current, future, or
proposed products of Disclosing Party; business forecasts and procurement
requirements of Disclosing Party; plans or technology of Disclosing Party.
2. Receiving Party shall not communicate Disclosing Party's Information to
any third party and shall use its best efforts to prevent inadvertent disclosure
of Disclosing Party's Information to any third party.
3. Receiving Party shall neither use Disclosing Party's Information nor
circulate it within its own organization except to the extent necessary for
(a) negotiations, discussions and consultations with personnel or
authorized representatives of Disclosing Party;
(b) supplying Disclosing Party with goods or services at its order;
(c) preparing bids, estimates and proposals for submission to
Disclosing Party; and
(d) any purpose Disclosing Party may hereafter authorize in writing.
4. The obligations of Paragraphs 2 and 3 hereof shall terminate with
respect to any particular portion of the Disclosing Party's Information (i) when
the Receiving Party can document that
(a) it was in the public domain at the time of Disclosing Party's
communication thereof to Receiving Party,
(b) it entered the public domain through no fault of Receiving Party
subsequent to the time of Disclosing Party's communication thereof to
Receiving Party,
(c) it was in Receiving Party's possession free of any obligation of
confidence at the time of Disclosing Party's communication thereof to
Receiving Party,
(d) it was rightfully communicated to Receiving Party free of any
obligation of confidence subsequent to the time of Disclosing Party's
communication thereof to Receiving Party, or
(e) it was developed by employees or agents of Receiving Party
independently of and without reference to any Disclosing Party
Information or other information that Disclosing Party has disclosed
in confidence to any third party or
(ii) when it is communicated by Disclosing Party to a third party free of any
obligation of confidence; or, (iii) in any event, [CONFIDENTIAL TREATMENT
REQUESTED]/*/ years after Xerox' communication thereof to Contractor and
[CONFIDENTIAL TREATMENT REQUESTED]/*/ years after Contractor's communication
thereto to Xerox.
5. All materials including, without limitation, documents, drawings,
models, apparatus, sketches, designs, and lists furnished to Receiving Party by
Disclosing Party and which are designated in writing to be the property of
Disclosing Party shall remain the property of Disclosing Party and shall be
returned to Disclosing Party promptly at its request with all copies made
thereof.
6. Communications from Disclosing Party to personnel and authorized
representatives of Receiving Party shall not be in violation of the proprietary
rights of any third party.
----------------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] Indicates material that has been omitted
and for which confidential treatment has been requested. All such omitted
material has been filed with the Commission pursuant to Rule 24b-2 promulgated
under the Securities and Exchange Act of 1934, as amended.
7. This Agreement shall govern all communications between Disclosing Party
and Receiving Party that are made by the parties hereto during the period from
July 22, 1998 to the date on which either party receives from the other written
notice that subsequent communications shall not be so governed.
8. Receiving Party shall not export, directly or indirectly, any technical
data acquired from Disclosing Party under this Agreement or any products
utilizing and such data to any country for which the U.S. Government or any
agency thereof at the time of export requires an export license or other
Government approval without first obtaining such license or approval.
9. This Agreement shall be construed in accordance with the laws of New
York State.
Xerox Corporation Contractor
By: /s/ Xxx XxXxxxx By: /s/ R E Xxxxxxxx
---------------------------- ----------------------------
Xxx XxXxxxx R E Xxxxxxxx
---------------------------- ----------------------------
Title: VP and GM Production Color Title: President & COO
-------------------------- -------------------------
Date: 7-21-98 Date: 7-22-98
--------------------------- --------------------------
17
EXHIBIT B: Installed Presses
The following constitutes all PAX and SUN Presses purchased by Xerox
and installed at customer locations as of the Effective date:
----------------------------------------------------------------------------------------------------------------------
# PRESS TYPE CUSTOMER XEROX PRESS S/N
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
1 DC400 Vineyard Graphics, Newburg, Oregon [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
2 DC400 New York City Technical College, New York, New York [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
3 DC400 Docustar, Inc., Cincinnati, Ohio [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
4 DC400 New York State Senate Printing, Albany, New York [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
5 XX000 Xxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
6 DC233 Royal Printing, Guilford, Connecticut [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
7 DC233 Great Originals - RPH, Anchorage, Alaska [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
8 DC233 World Trade Printing, Long Beach, California [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
9 DC233 Power Images, Fort Lauderdale, Florida [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
10 DC233 Oklahoma Department of Transportation, Oklahoma City, Oklahoma [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
11 DC233 Mercury Print Productions, Rochester, New York [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
12 DC233 Imprimerie Abco Printing Inc., Montreal, Canada [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
13 DC233 Creaciones Caribenas, Rio Piedras, Puerto Rico [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
14 DC233 Boss Printing, Las Vegas, Nevada [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
15 DC233 Vineyard Graphics, Newburg, Oregon [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
16 DC233 Xxxxxxx Communication Inc., DBA San Xxxx Print and Copy, [CONFIDENTIAL
San Luis Obispo, California TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
17 DC233 Church of Xxxxx Xxxxxx Latter Day Saints - Salt Lake Printing [CONFIDENTIAL
Center, Salt Lake City, Utah TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
18 DC233 Printers Printer, Philadelphia, Pennsylvania [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
19 DC233 Boss Printing, Las Vegas, Nevada [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
20 XX000 Xxxx Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxx [CONFIDENTIAL
TREATMENT REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
18
EXHIBIT J
---------
RESTATED SERVICE AGREEMENT
THIS RESTATED SERVICE AGREEMENT (the "Service Agreement") dated as of March 18,
2003 ("Effective Date"), is between Xerox CORPORATION with offices at 000
Xxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000 ("Xerox"), and Presstek, Inc. having a
place of business at 00 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000
("Presstek").
WHEREAS, Xerox and Presstek have entered in to a certain Amended Master Supply
and Distribution Agreement dated May 11, 2001 ("Amended Agreement"); and
WHEREAS, Exhibits X-0, X-0, X-0, X-0, X-0, and J-6, (the "Amended Service
Agreement") to the Amended Agreement set out terms and conditions relevant to
Service of Products pursuant to the Amended Agreement ; and
WHEREAS, Presstek and Xerox wish to amend, modify and restate the terms of the
Amended Service Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises, other good and valuable
consideration received and to be received, Presstek and Xerox hereby agree as
follows:
I. DEFINITIONS
1. "Customer" shall mean the current customers of Xerox for the Products
which, on the Effective Date, are located in the United States, Puerto
Rico, or Canada. Customer specifically excludes any customer of Xerox who,
on the Effective Date, is located outside the United States or Canada and
who purchased either a PAX or SUN Press.
2. "Documentation" shall mean user guides, operating manuals, education
materials, product descriptions and specifications, technical manuals,
supporting materials, and other information relating to the Products, or
used in conjunction with the Services, whether distributed in print,
magnetic, electronic, or video format, in effect as of the date the Product
is shipped or the Service is provided to Customers, including Documentation
as defined in the Amended Agreement as applicable.
3. "Maintenance Site" shall mean the Customer location where Service is to be
performed.
4. "Principal Period of Maintenance" ("PPM") shall mean (a) the period during
which Services are to be performed at the applicable Maintenance Site,
specifically the twelve (12) consecutive hours commencing at 8:00 a.m. and
ending at 8:00 p.m. Eastern Time, Monday through Friday, excluding national
holidays; and (b) the continuous consecutive twenty-four hour periods
during which telephone support shall be provided as further set forth
herein.
5. "Services" shall mean the services set forth in this Service Agreement and
Exhibits, including without limitation customer support, maintenance and
repair services;
1
Customer application testing; and Customer workflow productivity
enhancement (the "Services").
6. "Spares" shall mean spare parts for the Products and modifications,
enhancements and improvements thereto which are made pursuant to the terms
of this Service Agreement or the Distribution Agreement.
7. All other defined terms shall have the meanings identified and set forth in
the Distribution Agreement.
II. PURPOSE
1. Scope of Services.
------------------
(a) During the term of this Service Agreement, Presstek shall provide
Services pursuant to the terms and conditions of this Service
Agreement and the Distribution Agreement to Customers for the Products
on Xerox' behalf as an independent contractor. Presstek shall make
services available to all Installed Presses during the term of this
Agreement even if such Installed Press is de-installed and
re-installed at another location in the United States as a Remarketed
Press PROVIDED, however, that in no case shall Presstek's obligation
to provide service for any press exceed a term longer than five years
from the Effective Date. In the event of any conflict between the
terms of this Service Agreement and the terms of the Restated
Distribution Agreement with respect to the Services to be provided,
the terms of this Service Agreement shall have priority and govern the
parties' performance hereunder. Presstek shall have no obligation to
provide Warranty service or otherwise provide Service or to make
services available to any PAX or SUN Press that is not installed at a
Customer location in either the United States, Puerto Rico or Canada
on the Effective Date.
(b) With respect to any particular corporation, partnership or business
which has entered into any form of Customer service contract pursuant
to which Presstek is performing services hereunder, (i) Presstek shall
not provide repair or maintenance service for any Xerox products other
than the Products, and (ii) Presstek shall supply Consumables as
defined in the Distribution Agreement. Except for the foregoing
restriction, nothing in this Service Agreement shall in any way limit
Presstek from providing repair service for any Xerox or non-Xerox
products.
(c). Term of Services. Presstek shall provide services necessary to fulfill
its warranty obligations, as those obligations are set out in the
Restated Master Agreement.
2. Transition of Services. Presstek will provide Services in accordance with
the terms of this Restated Service Agreement for a period of [CONFIDENTIAL
TREATMENT REQUESTED] /*/ years (the "Service Term") from the Effective Date
unless the Service Term is otherwise [CONFIDENTIAL TREATMENT REQUESTED] /*/
as set out
herein. Presstek may assign its Service Obligations to a third party
service provider, as provided herein. If Presstek assigns its Service
Obligations to a third party service provider, Presstek shall have no
further obligations hereunder.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
2
Xerox's Production Systems Group shall, beginning on the Effective Date,
use its best efforts to convince Xerox's NASG organization (Xerox's service
organization), to agree to assume Presstek's Service Obligations. Within
[CONFIDENTIAL TREATMENT REQUESTED] /*/ months from the effective date, and
provided that Presstek has not assigned its Service Obligations to a third
party, Xerox shall notify Presstek that Xerox will either (a) assume
Presstek's Service Obligations without any accounting or further
obligations to Presstek related to Services hereunder, except as set out
herein, or (b) not assume Presstek's Service Obligations. Xerox's failure
to notify Presstek of its decision as to (a) or (b) herein will be
considered a decision by Xerox to not assume Presstek's Service
Obligations.
(a) Assignment to a Third Party. At any time during the term of this Service
Agreement, Presstek may assign its Service Obligations to a third-party
service provider, in accordance with the terms herein.
(i) Procedure. Should Presstek determine that it would like to assign its
service obligations to a third-party service provider, it shall follow
the following procedure:
o Presstek shall notify Xerox in writing of the proposed third
party to whom Presstek would like to assign its obligations under
this Agreement.
o Xerox will review the proposed assignee and will allow for the
assignment except where Xerox reasonably believes that the party
to whom Presstek proposes to assign its Service Obligations is
either (a) financially or technically incapable of adequately
performing the Service Obligations; or (b) a competitor of Xerox.
Xerox may not unreasonably withhold its permission for Presstek
to so assign its obligations hereunder. Xerox shall notify
Presstek of its disapproval of the proposed assignment within
[CONFIDENTIAL TREATMENT REQUESTED] /*/ days after Xerox receives
written notification of the proposed assignment. Xerox's failure
to so notify Presstek of its disapproval of the proposed
amendment within [CONFIDENTIAL TREATMENT REQUESTED] /*/ days will
be deemed an approval by Xerox of the proposed assignment
(ii) Effect of Assignment. If Presstek so assigns its Service Obligations
to a third party, then:
a) the term of the Presstek Service Obligations shall [CONFIDENTIAL
TREATMENT REQUESTED] /*/ years from the Effective Date; and
b) Presstek shall have no further obligations hereunder.
(iii) Preapproval. Xerox has determined that Tech Services Internal, LLC of
Kennett Square, Pennsylvania (TSI) is financially and technically
capable of adequately performing the Service Obligations and is not a
competitor of Xerox and hereby
grants its approval for Presstek to assign its Service Obligations to
in accordance with this section PROVIDED, that TSI:
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
3
1. will consult with Xerox regarding any complaints
received by Xerox from a Customer; and
2. will appoint an individual who will be the focal point
of contact for Xerox related to complaints received by
Xerox from Customers and who will be generally
available to Xerox to discuss these matters.
Presstek warrants that the two requirements set out in Section 2 (a) (iii)
(b) 1 and 2, above, will be included in any assignment agreement between
Presstek and TSI related to TSI assuming Presstek's obligations under this
Agreement.
(b) If Xerox notifies Presstek that it will assume the Presstek Service
Obligations then:
(i) Presstek's Service Obligations shall terminate [CONFIDENTIAL TREATMENT
REQUESTED] /*/ from the Effective Date.
(ii) Xerox shall assume all of Presstek's Service Obligations within
[CONFIDENTIAL TREATMENT REQUESTED] /*/ years from the Effective Date
and Presstek shall have no further obligations except as provided
herein;
(iii) Xerox may purchase from Presstek, at a price determined in accordance
with Article X 4 (d), all inventory Spares and items associated with
Presstek meeting its obligations under this Service Agreement.
Presstek warrants that such Spares purchased hereunder shall be will
be free from defects in material and workmanship under normal use and
service for a period of [CONFIDENTIAL TREATMENT REQUESTED] /*/ days
from the date of either (a) installation (where such Spare was
installed by Presstek or Presstek's designee) or (b) delivery (where
installation is to be performed by someone other than Presstek or
Presstek's designee). Xerox, at its discretion, may perform a physical
inventory to verify the quantity and condition of such inventory,
Spares, and other items;
(iv) Xerox may purchase from Presstek, at a price determined in accordance
with Article X.4(d), all tools specific to servicing the PAX and SUN
Presses;
(v) Presstek shall assess the number of [CONFIDENTIAL TREATMENT REQUESTED]
/*/ it no longer needs as a result of Xerox transitioning the services
hereunder, and shall notify Xerox of that number. Presstek shall make
all [CONFIDENTIAL TREATMENT REQUESTED] /*/ associated with providing
Service under this Service Agreement (including [CONFIDENTIAL
TREATMENT REQUESTED] /*/) available for
Xerox to [CONFIDENTIAL TREATMENT REQUESTED] /*/ Xerox shall have the
right (but not the obligation) to [CONFIDENTIAL TREATMENT REQUESTED]
/*/ of such number of Presstek [CONFIDENTIAL TREATMENT REQUESTED] /*/
without any fee or compensation to Presstek;
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
4
(vi) Presstek shall, within [CONFIDENTIAL TREATMENT REQUESTED] /*/ of
receiving the written notice, establish a schedule of certifying up to
[CONFIDENTIAL TREATMENT REQUESTED] /*/ individuals designated by Xerox
to become Presstek Certified Service Representatives, in accordance
with the costs reflected on Exhibit J-4, such certification to be
completed within a timeframe that would permit Xerox to assume
Presstek's Service Obligations two years from the Effective Date, or
reasonably sooner if so requested by Xerox;
(vii) Upon receipt of such written notice, Presstek shall promptly and in
good faith provide such documentation, information and assistance
necessary to effect such transition, including, but not limited to,
diagnostic software(at no cost to Xerox);
(viii) Provided that Xerox, in accordance with Section II. 2, has not
[CONFIDENTIAL TREATMENT REQUESTED] /*/ Presstek's capacity to provide
escalation (3rd level) support for Xerox's Service support staff to
address issues related to Presstek's imaging technology, ("Escalation
Support") for a period not to exceed [CONFIDENTIAL TREATMENT
REQUESTED] /*/ years from the time Xerox assumes performance of the
Services, at no charge to Xerox, Presstek will maintain Escalation
Support Monday through Friday, during the hours of 8:00 am and 5:00 pm
(Eastern Time), excluding holidays. During such time that Presstek
provides Escalated Support, Presstek shall respond to Xerox's service
and support staff inquiries within a reasonable time. Presstek and
Xerox will negotiate in good faith to establish prices and terms for
which Presstek will provide Escalation Support for the time beyond the
three years following the date that Xerox has assumed performance of
the Services.
In the event Xerox elects to assume performance of Service as set forth in this
Section, Presstek shall not compete with Xerox in servicing the Customers; and
Xerox shall assume any and all obligations of Presstek under this Service
Agreement.
(c) If Xerox elects not to assume the Service obligations as set out in this
Restated Service Agreement, then:
(i) the term of Presstek's Service Obligation shall [CONFIDENTIAL
TREATMENT REQUESTED] /*/ years;
(ii) if by the end of the second year following the Effective Date Xerox
has not assumed Presstek's Service Obligations, Xerox shall pay to
Presstek an amount of [CONFIDENTIAL TREATMENT REQUESTED] /*/ by
December 31, 2005.
(iii) Presstek, at its sole discretion shall continue to have the right to
identify a third party to whom it may assign any and all of its
obligations under this Restated Service Agreement in accordance with
the terms set out in item (a), above.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
5
3. Product(s) Support Availability. For a period of at least [CONFIDENTIAL
TREATMENT REQUESTED] /*/ years from the Effective Date, Presstek agrees to
make available Services to Customers, at mutually agreeable, reasonable
prices and upon reasonable terms. Presstek may assign this obligation to a
third party as set out herein. Presstek may terminate any and all
obligations under this Section II. 3 upon assumption or assignment of the
Service obligations by Xerox or a third-party service provider, as set out
in Section II. 2, above.
4. Use of Xerox Name. Presstek shall refer to itself as an Authorized Xerox
Service Agent with respect to the Products. The parties agree that no
commission or other form of compensation shall be payable to Presstek by
Xerox in connection with this provision. Advertising and use of the Xerox
name and trademarks will conform to guidelines published by Xerox. Presstek
shall not refer to itself in any manner that is inconsistent with
Presstek's true status or which may be misleading to Customers.
5. Presstek Is Not a Reseller of Xerox Products. During the term of this
Service Agreement and any extensions and for one year after the termination
of this Service Agreement, Presstek shall not market (either as an agent,
reseller, manufacturers' representative, or in any other capacity) any
Xerox products or supply items, except as expressly agreed by the parties
in a separate written agreement or in the Distribution Agreement. This
prohibition shall include, but not be limited to, any assistance or
arrangement of the acquisition, sale, rental, marketing, or distribution of
Xerox products or supply items by any party other than Xerox.
6. Warranty Obligations. Services identified herein are in addition to
Presstek's warranty obligations with respect to Products as further set
forth in the Restated Distribution Agreement, including Systemic Defect
provisions as defined therein.
III. SERVICE ENGAGEMENT PROCESS
1. Customer Service.
-----------------
(a) Presstek shall prepare a Product Service Offerings package for
Customers in a format reasonably agreeable to Xerox and obtain Xerox'
advance written consent to any material modifications thereto. Xerox
will not unreasonably withhold this consent.
(b) Presstek shall present and Customer may elect Service Offerings.
IV. PERFORMANCE OF SERVICE
1. Xerox Training. If Xerox assumes Presstek's service obligations, as set out
in Article II 2, above, Presstek will provide training to certify Xerox
employees. The training provided by Presstek shall be scheduled in groups
of no less than three but no more than five people at a time at Presstek's
facilities or at another location agreed to by Presstek.
2. Within 30 days of Xerox electing to transfer services, as set out in
Article II. 2, Presstek will provide Certified Service Training to Xerox,
or Xerox-designated individuals. Such
training shall be to certify said Xerox-designated individuals to be
qualified to install,
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
6
service and perform tasks associated with issues with regard to Products as
described in Exhibit J-1. Presstek will provide this initial certification
training, or any additional certification to Xerox-designated personnel at
Xerox' expense, as set forth in Exhibit J-4.
3. Telephone Support. Presstek will make available the service option of a
toll-free number telephone support hotline for direct Customer technical
support, troubleshooting, onsite service requests, and information
concerning Products and/or Consumables twenty-four (24) hours/day, seven
(7) days/week including holidays, as set out in Exhibit J-1, which shall be
available to such Customers that select the appropriate Service offering
hereunder at no additional cost, provided that Customers who select such
telephone support as an individual offering shall be liable for the
applicable fees therefor as set forth in Exhibit J-1.
4. Remedial Maintenance.
(a) Presstek shall provide remedial maintenance upon notification by
Customer or Xerox that the Product requires maintenance. Remedial
maintenance shall include unscheduled work required by Customer from
time to time as required to repair or replace defective Product or
components thereof and to return such defective Product/components to
good working order and operating condition and capable of performing
in accordance with the applicable Specifications. In the event
Product/components are not so operational, Presstek shall pay, or
reimburse Customer for [CONFIDENTIAL TREATMENT REQUESTED] /*/ a result
of such inoperability .
(b) In accordance with this Section, Presstek shall provide to Customer
the installation of engineering changes required or recommended by the
Product manufacturer or provider. Presstek shall notify Customer of
the engineering changes to be installed, and Customer may, at its
option, consent to such installation and limit the installation or
timing of engineering changes other than safety changes.
5. Response Time.
(a) Presstek shall establish a work support process that includes a
"Customer Support Center" utilizing call logs and second and third
level support processes, together with a process for implementing the
escalation procedures during the hours of 8:00 am and 8:00 pm, Eastern
Time, Monday through Friday, excluding holidays. Presstek shall have a
subject matter expert ("SME") call the Customer within sixty (60)
minutes of being assigned a Services call during the PPM.
(b) Presstek will provide Service to two types of Customers: (i) those who
enter a separate Service Contract with Presstek ("Contract
Customers"); and (ii) those that do not enter into a separate Service
Contract with Presstek ("Non-Contract
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
7
Customers").
(i) Contract Customers. In the case of a Contract Customer, upon
either written or verbal notice by Contract Customer to Presstek
during the PPM that remedial maintenance is required, Presstek
shall use commercially best efforts to have a Presstek qualified
maintenance personnel arrive at the Maintenance Site within
twenty-four (24) consecutive hours of notification and shall use
commercially reasonable efforts to accomplish the necessary
repairs as promptly as possible; provided, however, that Presstek
agrees during the term hereof to use commercially reasonable
efforts to decrease this response time. If the required response
time should extend beyond the PPM, Presstek and Customer (or
Presstek and Xerox where Service is requested for a Xerox-owned
machine) shall mutually agree whether such Services shall be
performed at such time or during the next PPM. If Presstek's
maintenance personnel fail to arrive or use commercially best
efforts to be fully prepared to perform Services within the
required response time period, the Customer, shall receive a
credit from Presstek in an amount set out under the terms of the
Service Agreement between Presstek and the Contract Customer.
(ii) Non-Contract Customers. In the case of a Non-Contract Customer,
provided that the Customer agrees to pay the then-effective
Non-Contract Customer Rates, upon either written or verbal notice
by Non-Contract Customer to Presstek during the PPM that remedial
maintenance is required, Presstek's qualified maintenance
personnel shall arrive at the Maintenance Site within
[CONFIDENTIAL TREATMENT REQUESTED] /*/ consecutive hours of
notification and shall use commercially reasonable efforts to
accomplish the necessary repairs as promptly as possible;
provided, however, that Presstek agrees during the term hereof to
use commercially reasonable efforts to decrease this response
time. If the required response time should extend beyond the PPM,
Presstek and the Customer (or Presstek and Xerox where Service is
requested for a Xerox-owned machine) shall decide whether such
Services shall be performed at such time or during the next PPM.
If Presstek's maintenance personnel fail to arrive or use
commercially best efforts to be fully prepared to perform
Services within the required response time period, the
Non-Contract Customer shall be entitled to a [CONFIDENTIAL
TREATMENT REQUESTED] /*/ discount for maintenance charges payable
to Presstek hereunder.
(c) In addition to and without limiting the foregoing, any and all
Customers identified software problems will be managed through a
Presstek process generally equivalent to the Xerox Software Problem
Action Request Process (SPAR Process). SPAR(s) are rated by severity
of the Product Failure (as defined in the Distribution Agreement) and
defined as follows:
SEVERITY LEVEL 1 shall be defined as a "catastrophic problem" wherein
the Customer's system is down, and/or the user has no production
capability, or a field service technician cannot proceed with an
installation.
SEVERITY LEVEL 2 shall be defined as a "severe problem" wherein the
Customer's system is up, but production capability is seriously
degraded.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
8
SEVERITY LEVEL 3 shall be defined as a "moderate problem" wherein the
Customer's system is up, but production capability is reduced.
SEVERITY LEVEL 4 shall be defined as a "minor problem" wherein the
Customer's system is up, with no significant impact to production.
6. Problem Severity Response Time/Resolution Time. Presstek will make every
commercially reasonable attempt to achieve the following Response Times and
Target Resolution Times for each SPAR:
SEVERITY RESPONSE TIME TARGET RESOLUTION TIME
Level (1) ASAP [CONFIDENTIAL TREATMENT REQUESTED] /*/
Level (2) [CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
Level (3) [CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
Level (4) [CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
Presstek will use commercially reasonable efforts to remedy or ameliorate the
problem within a commercially reasonable period, depending on the severity of
the problem. Failure of Presstek to meet the above Response Times and Target
Resolution Times shall not be considered a breach of this Service Agreement,
provided that Presstek makes every commercially reasonable attempt to do so as
provided herein.
"Response Time" is defined as the time necessary to (a) acknowledge the receipt
of a problem, or (b) request any additional information as is necessary for the
Presstek Technical Support group to escalate the problem to the Presstek QA or
engineering groups for resolution. In the event of (b) above, the Presstek
Technical Support group will be responsible for monitoring the timeliness of the
QA/Engineering response, as well as keeping the OEM Technical Support group
updated as to the status of the problem. In the case of a problem submitted by
telephone, it is assumed that the response is immediate in that the call is
answered as soon as a Presstek Technical Support representative is available to
answer.
"Resolution Time" is defined as the time necessary to provide a software fix or
work around, explanation of functionality or other such item as to (a) resolve
the customer's problem where it is proven to be the fault of Product software or
firmware, and/or (b) provide reasonable explanation or evidence that the problem
is not the result of Presstek firmware or software. Presstek Technical Support
will use commercially reasonable efforts when resolving Customer issues for
Xerox.
Presstek shall have the additional SPAR responsibilities set forth on Exhibit
J-3. SPAR response times will not apply to diagnostic software. Presstek will
make commercially reasonable efforts to repair all "bugs" that occur in
diagnostic software within a reasonable time.
V. SPARES
1. Spares Inventory. Presstek shall maintain a Spares inventory, such
inventory to be Presstek's estimate of the parts reasonably necessary to
allow for the provision of Services to Customers in accordance with the
terms of this agreement. These Spares
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
9
shall at all times remain the property of Presstek until and unless
they are provided to Customers as part of the Services. Presstek may
also make available to Customers a list of all spares that Presstek
reasonably believes should be kept on site and of which the Customer
may want to keep in the Customer's inventory.
2. Emergency Spares Inventory. Presstek shall at all times maintain an
adequate inventory of each Spare, at no cost to Xerox, and use this supply
of Spares solely for shipment to Xerox or its Customers as emergency
Spares, when requested. Deliveries of emergency Spares shall be made as
promptly as practicable but not more than twenty-four (24) hours of Xerox'
or Customer's written or verbal request to Presstek.
3. Spares Delivery and Invoicing. Presstek will supply Spares directly to and
invoice Xerox/the Customer in accordance with mutually agreed upon terms.
4. Continuity of Supply. Presstek shall make available to Xerox and its
Customers Spares (as that term is defined in the Distribution Agreement)
for the term of the current term of the lease agreement for a particular
Press, but in no case will such obligation exceed a period of [CONFIDENTIAL
TREATMENT REQUESTED] /*/ years from the Effective Date and reasonable
prices and upon reasonable terms.
5. Equivalent Spares. Xerox agrees to accept equivalent and/or interchangeable
(form, fit and function compatible as defined herein) Spares during the
[CONFIDENTIAL TREATMENT REQUESTED] /*/ year period set forth above, if
Presstek's source of supply should change and such change is beyond
Presstek's reasonable control. The determination as to whether Spares are
equivalent and/or interchangeable shall be made by mutual agreement of the
parties.
6. Payment Terms. Payment for Spares shall be due within [CONFIDENTIAL
TREATMENT REQUESTED] /*/ days of Xerox' or the Customer's receipt of
correct invoice, subject to Presstek's credit approval of the Customer.
7. Shipping Terms. Shipping terms for Spares shall be as agreed by the
parties.
8. Priority. Presstek shall use commercially reasonable efforts to supply
Spares and Consumables at the lead time agreed upon by the parties on a
priority basis to Customers and to Xerox to replenish any Xerox low stock
condition, and shall immediately upon receipt of relevant purchase orders
notify Xerox of the anticipated shipment date of all Spares orders.
VI. SERVICE TOOLS, DOCUMENTATION AND RECORDS
1. Tools. Presstek shall acquire and maintain at its own expense those tools
necessary for the adequate performance of the Services. Pagers or cell
phones are considered a tool and necessary for the adequate performance of
the Services. Presstek is required to supply all technicians with a pager
or cell phone that will support Xerox processes.
2. Service Documentation.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
10
(a) Presstek is responsible for ensuring the availability of sufficient
Documentation to support its provision of Services prior to commencing
the provision of Services to Customers pursuant to this Service
Agreement. Documentation shall be updated by Presstek from time to
time as it deems necessary with notification to Xerox thereof.
(b) The parties agree that Documentation as defined herein shall not
contain the Xerox name or trademark or any other reference to Xerox,
until Xerox has verified such Documentation and provided written
consent to such use.
3. Service Records. Presstek shall maintain complete and accurate written
records detailing without limitation (a) an inventory of all Products
covered by Services hereunder listed by manufacturer, model number, serial
number and Maintenance Site, and (b) all Services provided hereunder
including, but not limited to, service logs, call close reports ("SCRs"),
and itemized reports and records of all of Xerox and Customer requests for
Services and Presstek's corresponding response and resolution times.
Presstek shall provide such records to Xerox monthly as well as following a
request from Xerox therefor and shall assist Xerox in reconciling any
differences between its records and Xerox' and/or Customer records. Xerox
shall establish a Product Performance Reporting System database and
Presstek shall provide Xerox with the foregoing information in those
formats (and via those processes) that Xerox may designate from time to
time consistent with such database. It shall be Presstek's responsibility
to ensure that this information is complete and accurate.
VII. STANDARD OF CONDUCT AND ADDITIONAL OBLIGATIONS OF Presstek
1. Personnel Competence, Training, and Conduct.
(a) Presstek shall assign a sufficient number personnel to perform the
Services who are competent to perform the Services. Presstek employees
shall not provide any part of the Services on any Product until he or
she has been successfully trained by Presstek and/or the manufacturer
of the Products. If a person assigned by Presstek to perform any
Services becomes unavailable to do so for any reason, Presstek shall
replace that person with one of comparable ability.
(b) Presstek and its employees shall make no representations about Xerox
or the Products other than those contained in promotional literature
provided by Xerox or otherwise authorized in writing by Xerox.
(c) The conduct of Presstek, its employees, and representatives shall
conform to the highest ethical standards and shall reflect favorably
on the good name and reputation of Xerox.
Material Breach. Any failure of Presstek, its employees, or representatives to
conduct themselves in accordance with this Section as reasonably determined by
Xerox will constitute material breach of this Service Agreement.
VIII. WARRANTIES
1. Presstek Warranties. Provided that Presstek has not transferred the
services as set out in Article II. 2., above, Presstek represents and
warrants that: (a) it shall perform all Services hereunder in a competent
and professional manner in accordance with the terms of this Service
Agreement and Exhibits, industry accepted standards and all applicable
laws, and in a manner which will maximize Product reliability and
performance, ensure to the greatest extent possible the safety and
convenience of the Customers, and results in Xerox receiving complaints
from no more than [CONFIDENTIAL TREATMENT REQUESTED] /*/ of the Customers
regarding Presstek's conduct, appearance, or quality of service; (b)
Presstek has not entered and will not enter into agreements or commitments
which are inconsistent with or conflict with the rights granted to Xerox in
this Service Agreement; (c)Presstek, in providing the Services under this
Service Agreement is not, and has not been notified that it may be, in
violation of any third parties' intellectual property rights including, but
not limited to, copyrights, patents or trade secrets; (d) Presstek will
provide sufficient employees to complete the Services ordered within the
applicable time frames established pursuant to this Service Agreement; and
(e) any parts supplied pursuant to this Service Agreement, including
Spares, will be free from defects in material and workmanship under normal
use and service for a period of one hundred eighty (180) days from the date
of either (a) installation (where such Spare was installed by Presstek or
Presstek's designee) or (b) delivery (where installation is to be performed
by someone other than Presstek or Presstek's designee);or (c) the
expiration of the full warranty period (whichever is later). Any failure by
Presstek to comply with the foregoing warranties will constitute a material
breach of this Service Agreement.
2. Disclaimer. Except for the express warranties set forth above, Presstek
disclaims and Xerox waives all other warranties, express or implied,
including the warranty of merchantability and fitness for a particular
purpose.
IX. COMPENSATION, INVOICING AND PAYMENT
1. Compensation. Subject to Section III.2(a), Presstek shall be compensated
for Services by Customer, as applicable, in accordance with the prices set
forth in Exhibit J-1. Presstek may modify the prices set forth in Exhibit
J-1 upon reasonable notice to Customers. Except as expressly provided
herein, such prices shall constitute Presstek's sole compensation for
Services.
2. Invoicing Customers. All charges for Services performed by Presstek will be
billed to Customer directly pursuant to terms of the contract with such
Customer.
X. TERM AND TERMINATION
1. Term. The initial term of this Service Agreement shall commence upon the
Effective Date and, subject to the termination provisions set forth below,
shall continue in full force and effect for [CONFIDENTIAL TREATMENT
REQUESTED] /*/ from the Effective Date (i.e., [CONFIDENTIAL TREATMENT
REQUESTED] /*/ EXCEPT that if the term of Presstek's Service Obligations
should [CONFIDENTIAL
TREATMENT REQUESTED] /*/ as set out in Section II 2, the term of this
Agreement shall automatically extend to [CONFIDENTIAL TREATMENT REQUESTED]
/*/ from the Effective Date, (i.e., [CONFIDENTIAL TREATMENT REQUESTED] /*/
and shall not renew.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
12
2. Termination for Breach. Either party may terminate this Service Agreement
if a material breach by the other party remains uncured [CONFIDENTIAL
TREATMENT REQUESTED] /*/ days after written notice of such material breach
is given by the non-breaching party. Termination of this Service Agreement
does not result in a breach of the Distribution Agreement.
3. Breaches Providing Grounds for Immediate Termination. Xerox shall have the
right to immediately terminate this Service Agreement for material breach
and the cure period set forth above shall not apply if (a) Xerox determines
this Service Agreement has been materially breached as more fully set forth
in Article [CONFIDENTIAL TREATMENT REQUESTED] /*/, Sections [CONFIDENTIAL
TREATMENT REQUESTED] /*/ and [CONFIDENTIAL TREATMENT REQUESTED] /*/ of this
Service Agreement; and/or (b) Presstek breaches any of the provisions of
this Service Agreement set forth in Sections [CONFIDENTIAL TREATMENT
REQUESTED] /*/ and [CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL
TREATMENT REQUESTED] /*/. A breach of this Service Agreement shall not
constitute a breach of, or otherwise affect, the Distribution Agreement.
4. Effect of Termination/Expiration.
(a) Presstek shall return or destroy, at Xerox' election and direction,
all confidential information.
(b) Presstek shall immediately cease to refer to itself as a Xerox
Authorized Service Agent.
(c) All right, title and interest in and to any and all tools, materials
or other items which are provided by Xerox to Presstek in connection
with Presstek's performance hereunder ("Xerox Property") shall be
vested in Xerox. Presstek holds Xerox Property as bailee and shall not
substitute any property for Xerox Property, use Xerox Property except
in connection with performance hereunder, or reproduce Xerox Property.
Presstek shall make entries in its books showing that Xerox Property
is held for the account of Xerox and shall furnish Xerox on demand a
true and complete inventory of Xerox Property held by Presstek for any
relevant period of time designated by Xerox. While in Presstek's
custody or control Xerox Property shall (a) be plainly marked or
otherwise identified as "Property of Xerox Corporation" and stored in
a separate area in Presstek's place of business, (b) be held at
Presstek's sole risk, and (c) be kept insured by Presstek at its own
expense in an amount equal to the then current replacement cost with
loss payable to Xerox. Upon termination, non-renewal or Xerox' demand,
Presstek shall immediately return to Xerox all Xerox Property in its
possession or control.
(d) Termination or expiration shall not affect Presstek's obligations
pursuant to Section II.3 or Section V.4, which shall be governed
solely by the terms of such Sections.
(e) Xerox' liability to Presstek shall be limited as of the effective
termination/expiration date (as applicable) in accordance with the
terms of Section IX. 1(b).
XI. INDEMNIFICATION
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
13
1. Indemnification.
(a) In performing their duties and obligations under this Service
Agreement, Presstek shall defend, indemnify and hold Xerox harmless
from and against all liabilities, damages, and reasonable costs, fees
and expenses, including reasonable attorneys' fees, arising out of
suits, claims, actions or proceedings arising out of or in connection
with actual or alleged negligence or other malfeasance or nonfeasance
by Presstek, its employees, agents, representatives and
subcontractors, upon or in relation to the fulfillment of
responsibilities and obligations under this Service Agreement,
including without limitation any allegations or claims of infringement
or misappropriation of any third party patent, copyright, trademark,
trade secret or other intellectual property rights (collectively
"Claims"). Presstek's obligations hereunder are contingent upon Xerox
promptly notifying Presstek in writing of any Claim(s) within a
reasonable time, providing reasonable assistance and otherwise
cooperating with Presstek in and permitting Presstek to direct the
defense and negotiations. Presstek shall, to the extent practicable,
use commercially reasonable efforts promptly to resolve all Claims
and, to the extent any Claim relates at least in part to the
infringement or misappropriation of intellectual property rights by
Presstek, shall at its own expense and option, either (i) procure for
Xerox the right to continue using such intellectual property; or (ii)
replace the same with non-infringing components having substantially
equivalent features and functionality; or (iii) modify the
intellectual property of Presstek so that it becomes non-infringing
with substantially equivalent features and functionality.
Notwithstanding the foregoing, Presstek's obligations under this
Section will not apply to the extent any Claim relates to (1) services
performed by an individual not certified or otherwise authorized by
Presstek; (2) Product changes, adaptations, expansions, reductions or
other modifications by Xerox, its designee, or at the direction,
guidance, instruction, suggestion or advice of Xerox/Xerox' designee
which is not pursuant to Presstek certification or authorization.
(b) In performing their duties and obligations under this Service
Agreement, Xerox shall defend, indemnify and hold Presstek harmless
from and against all liabilities, damages, and reasonable costs, fees
and expenses, including reasonable attorneys' fees, arising out of
suits, claims, actions or proceedings arising out of or in connection
with actual or alleged negligence or other malfeasance or nonfeasance
by Xerox, its employees, agents, representatives and subcontractors,
upon or in relation to the fulfillment of responsibilities and
obligations under this Service Agreement, including without limitation
any allegations or claims of infringement or misappropriation of any
third party copyright, trademark, trade secret or other intellectual
property rights, or claims by Xerox customers wrongfully alleging
Presstek's obligations to provide Services where no such Services are
due (collectively "Claims"). Xerox' obligations hereunder are
contingent upon Presstek promptly notifying Presstek of any Claim(s),
providing reasonable assistance and otherwise cooperating with Xerox
in and permitting Xerox to direct the defense and negotiations. Xerox
shall, to the extent
14
practicable, use its commercially reasonable efforts promptly to
resolve all Claims.
XII. GENERAL
1. Contacts. The parties' business contacts shall be the individuals
designated below, subject to change by reasonable advance written notice to
the other party:
For Xerox: For Presstek:
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
000 Xxxxxxxxx Xx. 00 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX, 00000 Hudson, NH
(603) 595-7000 x. 3223
3393255976
2. Independent Contractor. Xerox and Presstek agree that the relationship
between them is one of principal and independent contractor and that
neither Presstek nor its employees shall be considered employees of Xerox.
Accordingly, neither Presstek nor its employees shall be entitled to any
employment benefits made available by Xerox to its own employees.
Furthermore, both parties recognize that Presstek controls and is
responsible for: (a) the manner and means by which Presstek conducts the
Services and ensuring that its work product fully meets the standards for
acceptable performance established under this Service Agreement; (b) the
scope of its business enterprises (including Presstek's solicitation of
other customers and lines of business) and the hours during which they are
conducted; (c) the payment of all taxes associated with the payments
(including but not limited to all social security and income taxes); (d)
all matters and obligations concerning its employees; (e) all travel costs
and arrangements required to perform the Services (except for amounts
properly charged by Presstek in connection with Services performed as set
forth herein); and (f) the maintenance of its places of business and all
associated costs. Presstek shall maintain such workers' compensation
policies as are required by statute, as well as comprehensive general
liability and comprehensive automobile liability insurance with limits for
bodily injury and property damage on each such policy of at least one
million dollars. Upon request by Xerox, Presstek shall provide Xerox with
copies of the policies evidencing such insurance.
3. Confidential Information. In addition to the parties' obligations under the
Confidential Disclosure Agreement dated July 22, 1998, Presstek may from
time to time have access to or receive directly from Xerox information and
materials that are designated as confidential or proprietary or which are
by their nature confidential, proprietary, or sensitive, This shall
specifically include, but not be limited to, all technical manuals, reports
(such as [CONFIDENTIAL TREATMENT REQUESTED] /*/) and documentation relating
to the provision of the Services, In addition, such information and
materials may concern present or future Xerox products, business
strategies, or
customers. Presstek shall hold such information and materials in
confidence, shall not use them except to perform its duties under this
Service Agreement, and shall not disclose them to third parties unless
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
15
authorized in writing by Xerox, Presstek's obligations under this paragraph
shall survive the termination of this Service Agreement.
4. Remedies. Presstek acknowledges that it will be the preferred supplier of
the Services for the Products referred to in this Service Agreement and
that these Products, and the Services, are critical to Xerox' business.
Accordingly, and in addition to any other remedies to which Xerox may be
entitled in law and equity:
(a) In the event that any default by Presstek of its obligations hereunder
results in a Customer terminating or canceling a sale of Product(s)
before all payments due and owing for such Product(s) have been paid
in full; or, with respect to a Customer leasing Products from Xerox,
defaulting in its lease payments and/or terminating or canceling its
lease before all lease payments due and owing thereunder have been
paid in full; (i) PRESSTEK shall [CONFIDENTIAL TREATMENT REQUESTED]
/*/. In addition, where any default by Presstek of its obligations
hereunder results in a Customer terminating or canceling its lease
before all lease payments due and owing thereunder have been paid in
full, for each month that the Product has not been re-leased, sold or
otherwise transferred to a new Customer and for which lease payments
have not been received by Xerox, Presstek shall pay to Xerox an amount
[CONFIDENTIAL TREATMENT REQUESTED] /*/ PRESSTEK's obligation to make
these monthly [CONFIDENTIAL TREATMENT REQUESTED] /*/ are contingent
upon Xerox using commercially reasonable efforts in locating a new
Customer for the Product.
(b) The parties agree that in the event of any dispute (including without
limitation any under the Distribution Agreement), Presstek shall
continue to supply Services and Xerox shall continue to compensate
Presstek pursuant to the terms hereof pending resolution of such
dispute by negotiation or legal process.
5. Non-Assignability. Except as set forth in Section [CONFIDENTIAL TREATMENT
REQUESTED] /*/ of this Service Agreement, neither party may assign its
rights and obligations under this Service Agreement without the consent of
the other party; provided, however, that each party may assign this
Agreement in connection with (a) the sale of all or substantially all of
the capital stock or assets of such party, or (b) the acquisition by a
third party of a party to this Agreement by merger, consolidation,
reorganization or other business combination whereby more than fifty (50)
percent of the voting securities of a party to this Agreement are sold or
transferred to a third party (a "Business Combination"). Notwithstanding
the foregoing, in the event of a [CONFIDENTIAL TREATMENT REQUESTED] /*/
Xerox shall have the right in its complete and unfettered discretion to
[CONFIDENTIAL TREATMENT REQUESTED] /*/ above. Notwithstanding the
foregoing, PRESSTEK may delegate a portion of its
obligations pursuant to this Service Agreement to its subcontractors and
manufacturers, provided that PRESSTEK contractually obligates and
guarantees the
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
16
performance of the foregoing and indemnifies XEROX against any and all
claims, losses, demands, causes of action or other liability which may
arise in connection with such delegation, subject to the terms of this
Agreement, including Sections relating to warranty, indemnity and
limitation of liability.
6. Work Product of Services. Any invention, innovation, discovery, writing, or
other work product of Presstek, its employees, agents, and/or
subcontractors relative to or resulting from the Services which is made
solely by employees of Presstek during or after the Effective Date shall
become the property of Presstek. Any invention, innovation, discovery,
writing, or other work product of Presstek or Xerox, their employees,
agents, and/or subcontractors relative to or resulting from the Services
which is jointly made by employees of Presstek and Xerox during or after
the Effective Date shall become mutually owned property of Presstek and
Xerox. Any invention, innovation, discovery, writing, or other work product
of Xerox, its employees, agents, and/or subcontractors relative to or
resulting from the Services which is made solely by employees of Xerox
during or after the Effective Date shall become the property of Xerox.
7. Dispute Resolution. The parties agree that Section 27of the Restated
Distribution Agreement shall govern any dispute which may arise hereunder.
8. Survival. Any termination of this Agreement shall neither terminate any
rights which by their nature survive the termination of this Agreement, nor
serve to eliminate any liability arising out of conduct prior to the actual
date of termination, including any uncontested accrued payment obligation,
and either party may, following such termination, pursue such remedies as
may be available with respect to such liabilities. Any and all such
payments accrued hereunder as of the date of termination shall remain due
and payable in accordance with the terms hereof. .
9. Compliance with Laws. Both parties represent and warrant compliance in all
material respects with all federal, state and local laws, ordinances and
regulations to this Service Agreement and the performance of Services
hereunder.
10. Remedies Cumulative. Except as otherwise set forth herein, any rights or
remedies prescribed in this Service Agreement are cumulative and are not
intended to be exclusive of any other remedy of which the injured party may
be entitled to herein or at law or in equity, including but not limited to
the remedy of specific performance.
11. No Implied Waiver. No delay or failure by either party to exercise any
right or remedy hereunder shall be held to constitute a waiver of such
right or remedy.
12. Severability. A determination that any Section or sub-Section of this
Service Agreement is invalid in whole or in part shall not affect the
enforceability of any other Section or sub Section or the Agreement as a
whole.
13. Records Inspection. Supplier shall make its premises available to Xerox
upon reasonable notice during regular business hours for the purpose of
inspection by Xerox of Supplier's
17
books, records and documents relevant to verifying compliance with the
terms and conditions hereof.
14. Governing Law. This Service Agreement shall be governed by the law of New
York State without regard to its conflict of laws principles. Any action to
enforce the terms of this Service Agreement shall take place in the courts
located in the State of New York and the parties consent to the venue and
jurisdiction of such courts.
15. Entire Agreement. This Service Agreement and the Distribution Agreement
along with the Exhibits and those documents incorporated by reference
constitute the entire agreement between the parties concerning the subject
matter hereof, superseding all previous agreements, proposals,
representations, or understandings, whether oral or written. Any
modifications of this Service Agreement must be in writing and signed by
authorized representatives of both parties.
16. List of Attachments.
Exhibit J-1 - Service Offerings and Pricing
Exhibit J-2 - Xerox/Presstek Service Procedure Outline
Exhibit J-3 - Additional SPAR Responsibilities
Exhibit J-4 - Xerox Training
Xerox CORPORATION Presstek
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- ---------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
-------------------------- -------------------------------
Title: Title: President and CEO
------------------------- ------------------------------
18
RESTATED SERVICE AGREEMENT
between PRESSTEK, Inc. and XEROX Corporation
EXHIBIT J-1
SERVICE OFFERINGS AND PRICING.
EXHIBIT J-1A: Specimen of Presstek Service Offering and Pricing for the SUN
Press (attached hereto).
EXHIBIT J-1B: Specimen of Presstek Service Offering and Pricing for the PAX
Press (attached hereto).
Prices of Service Offerings set in Exhibits J-1A and J-1B are subject to change
at Presstek's discretion in accordance with the terms of the exhibits.
PRESSTEK DI
Customer Support Agreement
FOR:
Company
Date
PRESSTEK DI
Customer Support Agreement
April 1, 2003
Dear Mr. :
At Presstek, it is our mission to enable our customers to print high quality
graphics from digital files in the most efficient and profitable way. You've had
your DI Press for XXX now, and we hope you've enjoyed the DIRECT IMAGING
PRINTING EXPERIENCE--including benefits such as its fast rollup/low waste, ease
of operation, automation, and low cost per copy.
We are confident in the inherent reliability of our design and durability of our
imaging technology, but there are times when you'll need to call upon Presstek
to troubleshoot a problem or simply for preventative maintenance procedures to
keep your DI Press running at an optimum level. With a CUSTOMER SUPPORT
AGREEMENT in place, you'll have the assurance of knowing you'll receive priority
service from our own staff of field-based DI Specialists, without running
charges for telephone support, parts, labor, or per-incident fees.
Our records indicate your Labor Warranty expired on XXXX, and your Parts
Warranty expired on XXXX. I have enclosed two copies of an All Inclusive
Customer Support Agreement Plan for your DI Press that includes complete parts,
labor, travel, and telephone support coverage for one full year. To initiate
your service plan, please review, sign, and return one original of the agreement
to Presstek (attention Xxxxxxx Xxxxxxx) as soon as possible, keeping one copy
for your records.
If you opt not to sign up for this Customer Support Plan, our support to you
will be charged on a time & materials basis, as in our Basic Support Coverage
Plan as outlined in Appendix A of this document.
If you have any questions or need additional information, please feel free to
contact Xxxx Xxxxxxxx, Presstek's Customer Support Manager, at 000-000-0000 xxx.
3256.
Sincerely,
Xxxxxxx Xxxxxxx
Sales Support
Presstek, Inc.
00 Xxxxxxxxx Xxxxx Xxxxxx, XX 00000 Phone: 000-000-0000 Fax: 000-000-0000
PRESSTEK DI
Customer Support Agreement
COMPANY____________________________________________________________________
CONTACT NAME____________________________________________________________________
STREET____________________________________________________________________
CITY__________________________ STATE________________ ZIP__________
PHONE__________________________ FAX_______________________
If Xxxx-To Address is different, please complete the fields below:
COMPANY____________________________________________________________________
CONTACT NAME____________________________________________________________________
STREET____________________________________________________________________
CITY__________________________ STATE________________ ZIP__________
PHONE__________________________ FAX_______________________
PART# SERVICE DESCRIPTION AGREEMENT TERM DATES PRICE
--------------- ------------------------------- ---------------------- ---------------
400SMA-DC400AIC All inclusive Customer Support [CONFIDENTIAL
Agreement for DocuColor 400 DI. TREATMENT
REQUESTED]/*/
------------------------------------------------------------------------ ---------------
------------------------------------------------------------------------ ---------------
TOTAL [CONFIDENTIAL
TREATMENT
REQUESTED]/*/
------------------------------------------------------------------------ ---------------
PAYMENT TERMS: ON A QUARTERLY BASIS, Presstek will xxxx the amount due for the
following quarter.
Service Agreement shall include the following equipment and software:
DocuColor 400 DI Model#: Serial#:
------------------ ---------------- ----------- ------------- ------------------
------------------ ---------------- --------------------------------------------
DI SERVER Serial#:
------------------ ---------------- --------------------------------------------
------------------ ---------------- --------------------------------------------
DI RIP Serial#:
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
PRESSTEK DI
Customer Support Agreement
SUMMARY OF COVERAGE
Presstek offers nationwide field-based customer support using our own staff of
factory-trained specialists. Integration teams are made up of hardware
engineers, plate application specialists, and pre-press specialists.
Purchase of a Customer Support Agreement guarantees:
- Priority On-Site Response Time
- Complete Parts Coverage
- Complete Travel Coverage
- Unlimited On-Site Support
- Unlimited Telephone Technical Support
RESPONSE TIME: Presstek will use its best reasonable efforts to respond to
maintenance calls with its first available field support person.
LABOR, TRAVEL AND REPLACEMENT PARTS: Labor, travel, and replacement parts are
included at no additional charge to the Customer if maintenance is performed
during normal Presstek working hours (Monday through Friday, 8 a.m. to 5 p.m.
local time, exclusive of Presstek holidays.) System maintenance performed
outside normal working hours will be charged to Customer at the full rate then
in effect.
SOFTWARE SUPPORT: Presstek agrees to provide the following Software Support (1)
telephone consultation during the hours of 8 a.m. to 5:00 p.m. local time,
Monday through Friday, exclusive of Presstek holidays (2) software maintenance
releases and Software reference materials made available during the term of this
Agreement.
UNLIMITED TELEPHONE TECHNICAL SUPPORT: Presstek agrees to provide unlimited
telephone technical support during the hours of 8 a.m. to 5 p.m. local time,
Monday through Friday, excluding Presstek holidays, by calling 000-000-0000.
PRESSTEK DI
Customer Support Agreement
HARDWARE SYSTEM MAINTENANCE AND SOFTWARE SUPPORT
AGREEMENT TERMS AND CONDITIONS
1. DEFINITIONS: "Systems" means the System and Options indicated on the front
of this Agreement. "Software" means the software in the System and includes
only those software programs designed by Presstek for Prepress workflow and
does not include programs designed for word processing, accounting,
financial or other general business programming applications.
2. SYSTEM MAINTENANCE: Presstek agrees to perform emergency maintenance on the
System at the Site for the term of this Agreement when requested by the
Customer and deemed necessary by Presstek and when the system is not
operational. This maintenance includes labor, travel, and replacement parts
at no additional charge to Customer, if maintenance is performed during
normal Presstek working hours. System maintenance performed outside normal
working hours and Software services not covered by this Agreement will be
charged to Customer at the full rate then in effect (see Appendix A for
current rates.) Presstek will use its best reasonable efforts to respond to
maintenance calls with its first available field support person. Presstek
agrees to the above support during the hours of 8:00 a.m. to 5:00 p.m.
local time, Monday through Friday, exclusive of Presstek holidays. Service
and maintenance rates quoted herein (on Page 2 of this Document and in
Appendix A), are based on the above Principal Period of Maintenance
(typically one work shift). Travel hours are defined as "portal to portal".
Overtime hours are defined as any work hours exceeding 8 hours in one work
day or 24 hour time period.
3. SOFTWARE SUPPORT: Presstek agrees to provide the following Software
Support: (1) telephone consultation during the hours of 8:00 a.m. to 5:00
p.m. local time, Monday through Friday, exclusive of Presstek holidays; (2)
Software maintenance releases and Software reference manuals made available
during the term of this Agreement. Customer agrees that all Software,
change orders, and updates are provided subject to the applicable Presstek
Purchase, Lease, Rental, or Conditional Sale Agreement. No on-site Software
services are included under this Agreement. Software services not covered
by this Agreement, and requested by Customer, may be provided at Presstek's
then effective rates and terms. Operator training or System Manager
training are not provided under this Agreement.
4. EXCLUSIONS: System maintenance provided by Presstek under this Agreement
does not include (a) use of equipment in a manner not recommended by
Presstek; (b) failure to continually provide a suitable installation
environment, including but not limited to, adequate electrical power, air
conditioning or humidity control; (c) Customer's improper use, management,
or supervision of covered equipment; (d) accident and disaster, including
but not limited to fire, flood, water, wind, or lightening; (e) electrical
work, devices, cables, etc., external to the equipment; (f) the maintenance
of accessories, alterations, modifications, attachments or other devices
PRESSTEK DI
Customer Support Agreement
not covered by this agreement; (g) excessive electrostatic discharge,
improper grounding, improper power line protection; (h) failure of Customer
to perform Company recommended daily/weekly/monthly maintenance and
cleaning; (i) service providers and parts installers other than the
Company; (j) improperly trained and inexperienced operators; (k)
overhauling or altering of the system.
5. CUSTOMER OBLIGATIONS: Customer agrees to comply with all Presstek
installation and operating instructions including, but not limited to
regular daily/weekly/monthly maintenance as specified in the users guide.
Customer shall not: (1) abuse, misuse, or neglect the System or Software;
(2) modify or make attachments to the System or Software without prior
authorization by Presstek; (3) operate the System or Software in a location
with excessive dirt, dust, moisture, fumes, humidity or extremes of
temperatures; (4) allow maintenance of the System or Software by others
without authorization from Presstek; (5) use or combine the System or
Software with systems or software provided by others; (6) assign or cancel
this Agreement; or (7) transfer parts or software from other Presstek
Systems to the System and Software covered by this Agreement. If Customer
adds any Presstek option to the System or Software during the term of this
Agreement, Customer agrees to purchase System Maintenance and Software
Support for that option at the then applicable rate. Customer agrees to
maintain the Software at the revision level deemed necessary by Presstek.
Customer acknowledges and understands the modem(s) and line conditioners
provided by Presstek remain the property of Presstek and are to be used
solely for the purposes of providing remote diagnostics and detailed
services. Upon termination or expiration of this Agreement, Customer agrees
to allow Presstek access to the Site to remove any modem(s) and line
conditioners. Presstek may suspend or refuse Hardware System Maintenance of
Software Support, impose additional charges, or terminate this Agreement if
the Customer fails to perform its obligations under this Agreement.
Customer must maintain a stable environment with relative humidity and room
temperature as per the said equipment guidelines.
6. TERM: The initial term of this agreement is for one year from the Agreement
Term Start Date, or for the period specified in the Agreement Term Dates.
This Agreement shall renew automatically for successive periods of one
year, on the same terms and conditions at Presstek's then prevailing
prices, except that it shall not be renewed if either party provides
written notice of non-renewal at least thirty days prior to expiration of
the then current term of the Agreement.
7. ADDITIONS AND DELETIONS: New equipment may be added to, and replacements
deleted from this agreement upon receipt of ten days written notice to
Presstek, subject to written acceptance by Presstek. This provision may be
waived if new equipment is purchased from Presstek.
8. LIMITED WARRANTY: Presstek warrants that services will be performed in a
workmanlike manner in accordance with reasonable commercial standards.
PRESSTEK DI
Customer Support Agreement
Parts are warranted against defects solely to the extent of the
manufacturer's warranty, if any. Labor provided by Presstek is warranted
for 30 days from date of service.
9. ACCESS: Customer agrees to make the System and Software available for
maintenance within a reasonable time after arrival of support personnel.
Customer shall not remove the System or Software from Site without the
prior written consent of Presstek. If the consent is given, Presstek will
install the System and Software at Customer's expense after relocation.
10. SITE REQUIREMENT: Customer agrees to provide a Site which meets Presstek
environmental and electrical specifications, including a source of electric
power consisting of either a separate electric line installed from the main
junction box for each unit of the system or a Presstek authorized power
conditioning device. To permit continuity of support under this Agreement,
the Customer will not remove the System or Software from the site without
the prior written consent of Presstek. In addition to any other remedies,
Presstek reserves the right to adjust the price, temporarily discontinue
Support under this Agreement, or terminate the Agreement if the System or
Software is so removed.
11. MAINTENANCE AND SUPPORT LIMITATIONS: System Maintenance and Software
Support are contingent upon the System and Software being unmodified and
properly maintained at the latest revision level. If the System and
Software are not under warranty immediately prior to the effective date of
this Agreement, Presstek may inspect the System and Software to determine
whether they are in proper operating condition and at least the latest
revision level. This inspection and any repairs, adjustments, or updates
deemed necessary by Presstek shall be made at customer's expense prior to
commencement or continuation of System maintenance and Software Support.
12. PARTS: Presstek will supply replacement parts it considers necessary on an
exchange basis. PARTS OR SYSTEMS MAY BE NEW, SERVICABLE USED, OR
REPROGRAMMABLE ITEMS EQUIVALENT TO NEW IN PERFORMANCE. Replaced parts or
components shall become the property of Customer and exchanged parts shall
become the property of Presstek. Expendable and/or consumable parts such as
printing plates, rollers, including but not limited to, maintenance kits,
blankets, and covers are not covered by this Agreement.
13. WARRANTY EXCLUSION: Presstek MAKES NO WARRANTY OF ANY KIND UNDER THIS
AGREEMENT, EITHER EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14. LIMITATION OF LIABILITY: PRESSTEK SHALL NOT BE HELD RESPONSIBLE FOR
PRESSTEK'S INABILITY TO PROVIDE TIMELY SERVICE DUE TO DELAYS. IN NO EVENT
WILL PRESSTEK, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR AFILIATES,
BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTIAL, INDIRECT, SPECIAL
OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR
BUSINESS
PRESSTEK DI
Customer Support Agreement
INFORMATION, LIABILITY TO THIRD PARTIES, AND THE LIKE, ARISING OUT OF THE
USE OR INABILITY TO USE THE EQUIPMENT. PRESSTEK'S LIABILITY TO CUSTOMER (IF
ANY) FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF
THE FORM OF THE ACTION, WILL BE LIMITED TO AND IN NO EVENT EXCEED THE
AMOUNT PAYABLE BY CUSTOMER FOR SERVICE AND MAINTENANCE SUPPORT ON THE UNIT
OF THE EQUIPMENT INVOLVED, AS LISTED FOR THE THREE (3) MONTHS IMMEDIATELY
PRECEEDING THE EVENT WHICH ALLEGEDLY GAVE RISE TO THE DAMAGES.
15. APPLICABLE LAW: This Agreement shall be considered, interpreted and
enforced in accordance with the laws of the State of New Hampshire. Any
disputes under the Agreement or concerning the business relationship
between the parties must be litigated exclusively in the courts of the
State of New Hampshire. If, however, the parties have agreed in writing to
arbitrate their disputes, the arbitration must take place elsewhere. The
prevailing party in the action concerning this Agreement or the business
relationship between the parties shall be entitled to an award of costs and
reasonable attorney's fees. Any notice or other communication required
under this Agreement shall be deemed to have been duly given if it is
delivered personally or by facsimile with proof of receipt, or sent by
registered or first-class mail, return receipt requested, first class
postage prepaid, to a party at the address listed or such address provided
by the party.
16. FORCE MAJEUIRE: Presstek shall have no obligations hereunder for repairs,
maintenance, or replacements caused by operator error; maintenance of the
System or Software by others without authorization from Presstek, acts of
God, or other events beyond the control of Presstek.
17. GENERAL: This Agreement and its attachments, as accepted by Presstek and
Customer, supersede any previous written or oral agreements or
understandings between the parties concerning the subject of the agreement,
and constitute the entire such agreement between the parties. No amendments
or additions to the terms and conditions of this Agreement shall be valid
unless set forth in writing and signed by an authorized representative of
each of the parties. Waiver by either party of a breach of any of the
provisions shall not constitute a waiver of any succeeding breach of such
provision or a waiver of such provision itself. The invalidity or
unenforceability of any term or provision of this Agreement shall in no way
impair or affect the remainder of the Agreement, which shall continue in
full force and effect.
18. INDEMNIFICATION: Each party shall indemnify and hold the other harmless
from and against any claim, loss, liability, or expense, including but not
limited to, damages, costs and attorney fees, arising out of or in
connection with any acts of omissions of the other party and its agents and
employees.
PRESSTEK DI
Customer Support Agreement
ACCEPTANCE OF CUSTOMER SUPPORT AGREEMENT
PRESSTEK CUSTOMER
------------------------------ -----------------------------------
(Signature) Please sign on the line above to accept the Terms and Conditions of
this Agreement.
------------------------------ -----------------------------------
Print Name Print Name
------------------------------ -----------------------------------
Date Date
PRESSTEK DI
Customer Support Agreement
Appendix A
----------
Customer Support Offerings for
Xerox DocuColor 400 DI
PRICING SUBJECT TO CHANGE WITHOUT NOTICE.
ALL INCLUSIVE COVERAGE
COVERAGE FOR COMPLETE SYSTEM INCLUDING PRESS COMPONENTS
AVAILABLE MONDAY - FRIDAY 8:00 A.M. - 5:00 P.M.
DOCUCOLOR 400-5 DI: [CONFIDENTIAL TREATMENT REQUESTED] /*/ PER YEAR
6-MONTH EXTENDED WARRANTY - LABOR ONLY
AVAILABLE MONDAY - FRIDAY 8:00 A.M. - 5:00 P.M.
DOCUCOLOR 400-5 DI: [CONFIDENTIAL TREATMENT REQUESTED] /*/
DIGITAL AND ELECTRONICS SUPPORT COVERAGE
COVERAGE FOR ALL DI AND ELECTRONIC RELATED COMPONENTS
AVAILABLE MONDAY - FRIDAY 8:00 A.M. - 5:00 P.M.
DOCUCOLOR 400-5 DI: [CONFIDENTIAL TREATMENT REQUESTED] /*/ PER YEAR
BASIC SUPPORT COVERAGE
PER INCIDENT $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER ON-SITE CALL
LABOR $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ HOUR M-F 8AM-5PM
WEEKEND/HOLIDAYS $[CONFIDENTIAL TREATMENT REQUESTED]
/*/HOUR
PARTS VARIABLE PRICING
TELEPHONE SUPPORT $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER CALL
OPTIONAL TRAINING
ON-SITE PRESS OR PRE-PRESS TRAINING $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER DAY PER PERSON*
CLASSROOM PRESS OR PRE-PRESS TRAINING $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER 3-DAYS*
PRESSTEK DI
Customer Support Agreement
ON-SITE "UPTIME" SEMINAR $[CONFIDENTIAL TREATMENT
REQUESTED] /*/ PER 3-DAYS
*MINIMUM OF 2 PEOPLE IN THE PRESS CLASS, MINIMUM OF 3 PEOPLE IN THE PRE-PRESS
CLASS.
Appendix A
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
PRESSTEK DI
Customer Support Agreement
PRESSTEK DI
Customer Support Agreement
FOR:
Date
April 1, 2003
Dear Mr/Ms. :
At Presstek, it is our mission to enable our customers to print high
quality graphics from digital files in the most efficient and profitable
way. You've had your DI Press for nearly a year and a half, and we hope
you've enjoyed the DIRECT IMAGING PRINTING EXPERIENCE--including benefits
such as its fast rollup/low waste, ease of operation, automation, and low
cost per copy.
We are confident in the inherent reliability of our design and durability
of our imaging technology, but there are times when you'll need to call
upon Presstek to troubleshoot a problem or simply for preventative
maintenance procedures to keep your DI Press running at an optimum level.
With a CUSTOMER SUPPORT AGREEMENT in place, you'll have the assurance of
knowing you'll receive priority service from our own staff of field-based
DI Specialists, without running charges for telephone support, parts,
labor, or per-incident fees.
Our records indicate your Labor Warranty expired on August 2, 2002, and
your Parts Warranty expired on February 2, 2001. The following pages
outline an All Inclusive Customer Support Agreement Plan for your DI Press
that includes complete parts, labor, travel, and telephone support coverage
for one full year. To initiate your service plan, please review, sign, and
return one original of the agreement to Presstek (attention Xxxxxxx
Xxxxxxx) as soon as possible, keeping one copy for your records.
If you opt not to sign up for this Customer Support Plan, our support to
you will be charged on a time & materials basis, as in our Basic Support
Coverage Plan as outlined in Appendix A of this document.
If you have any questions or need additional information, please feel free
to contact Xxxx Xxxxxxxx, Presstek's Customer Support Manager, at
603-595-7000 ext. 3256.
Sincerely,
/s/ Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Sales Support
Presstek, Inc.
00 Xxxxxxxxx Xxxxx Xxxxxx, XX 00000 Phone: 000-000-0000 Fax: 000-000-0000
PRESSTEK DI
Customer Support Agreement
COMPANY____________________________________________________________________
CONTACT NAME____________________________________________________________________
STREET____________________________________________________________________
CITY__________________________ STATE________________ ZIP__________
PHONE__________________________ FAX_______________________
If Xxxx-To Address is different, please complete the fields below:
COMPANY____________________________________________________________________
CONTACT NAME____________________________________________________________________
STREET____________________________________________________________________
CITY__________________________ STATE________________ ZIP__________
PHONE__________________________ FAX_______________________
PART # SERVICE DESCRIPTION AGREEMENT TERM DATES PRICE
--------------- ------------------------------- ---------------------- -----------------------
233SMA-DC233AIC All inclusive Customer Support 3/6/2003 - 3/6/2004 $[CONFIDENTIAL
Agreement for DocuColor 233 DI. TREATMENT REQUESTED]/*/
--------------- ------------------------------- ---------------------- -----------------------
--------------- ------------------------------- ---------------------- -----------------------
TOTAL $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
--------------- ------------------------------- ---------------------- -----------------------
PAYMENT TERMS: On a quarterly basis, Presstek will xxxx the amount due for the
following quarter.
Service Agreement shall include the following equipment and software:
DocuColor 233 DI Serial#:
--------------------- ----------- -------------------
DI SERVER Serial#:
--------------------- ----------- -------------------
DI RIP Serial#:
--------------------- ----------- -------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
PRESSTEK DI
Customer Support Agreement
SUMMARY OF COVERAGE
Presstek offers nationwide field-based customer support using our own staff of
factory-trained specialists. Integration teams are made up of hardware
engineers, plate application specialists, and pre-press specialists.
Purchase of a Customer Support Agreement guarantees:
- Priority On-Site Response Time
- Complete Parts Coverage
- Complete Travel Coverage
- Unlimited On-Site Support
- Unlimited Telephone Technical Support
RESPONSE TIME: Presstek will use its best reasonable efforts to respond to
maintenance calls with its first available field support person.
LABOR, TRAVEL AND REPLACEMENT PARTS: Labor, travel, and replacement parts are
included at no additional charge to the Customer if maintenance is performed
during normal Presstek working hours (Monday through Friday, 8 a.m. to 5 p.m.
local time, exclusive of Presstek holidays.) System maintenance performed
outside normal working hours will be charged to Customer at the full rate then
in effect.
SOFTWARE SUPPORT: Presstek agrees to provide the following Software Support (1)
telephone consultation during the hours of 8 a.m. to 5:00 p.m. local time,
Monday through Friday, exclusive of Presstek holidays (2) software maintenance
releases and Software reference materials made available during the term of this
Agreement.
UNLIMITED TELEPHONE TECHNICAL SUPPORT: Presstek agrees to provide unlimited
telephone technical support during the hours of 8 a.m. to 5 p.m. local time,
Monday through Friday, excluding Presstek holidays, by calling 000-000-0000.
PRESSTEK DI
Customer Support Agreement
HARDWARE SYSTEM MAINTENANCE AND SOFTWARE SUPPORT
AGREEMENT TERMS AND CONDITIONS
1. DEFINITIONS: "Systems" means the System and Options indicated on the front
of this Agreement. "Software" means the software in the System and includes
only those software programs designed by Presstek for Prepress workflow and
does not include programs designed for word processing, accounting,
financial or other general business programming applications.
2. SYSTEM MAINTENANCE: Presstek agrees to perform emergency maintenance on the
System at the Site for the term of this Agreement when requested by the
Customer and deemed necessary by Presstek and when the system is not
operational. This maintenance includes labor, travel, and replacement parts
at no additional charge to Customer, if maintenance is performed during
normal Presstek working hours. System maintenance performed outside normal
working hours and Software services not covered by this Agreement will be
charged to Customer at the full rate then in effect (see Appendix A for
current rates.) Presstek will use its best reasonable efforts to respond to
maintenance calls with its first available field support person. Presstek
agrees to the above support during the hours of 8:00 a.m. to 5:00 p.m.
local time, Monday through Friday, exclusive of Presstek holidays. Service
and maintenance rates quoted herein (on Page 2 of this Document and in
Appendix A), are based on the above Principal Period of Maintenance
(typically one work shift). Travel hours are defined as "portal to portal".
Overtime hours are defined as any work hours exceeding 8 hours in one work
day or 24 hour time period.
3. SOFTWARE SUPPORT: Presstek agrees to provide the following Software
Support: (1) telephone consultation during the hours of 8:00 a.m. to 5:00
p.m. local time, Monday through Friday, exclusive of Presstek holidays; (2)
Software maintenance releases and Software reference manuals made available
during the term of this Agreement. Customer agrees that all Software,
change orders, and updates are provided subject to the applicable Presstek
Purchase, Lease, Rental, or Conditional Sale Agreement. No on-site Software
services are included under this Agreement. Software services not covered
by this Agreement, and requested by Customer, may be provided at Presstek's
then effective rates and terms. Operator training or System Manager
training are not provided under this Agreement.
4. EXCLUSIONS: System maintenance provided by Presstek under this Agreement
does not include (a) use of equipment in a manner not recommended by
Presstek; (b) failure to continually provide a suitable installation
environment, including but not limited to, adequate electrical power, air
conditioning or humidity control; (c) Customer's improper use, management,
or supervision of covered equipment; (d) accident and disaster, including
but not limited to fire, flood, water, wind, or lightening; (e) electrical
work, devices, cables, etc., external to the equipment; (f) the maintenance
of accessories, alterations, modifications, attachments or other devices
PRESSTEK DI
Customer Support Agreement
not covered by this agreement; (g) excessive electrostatic discharge,
improper grounding, improper power line protection; (h) failure of Customer
to perform Company recommended daily/weekly/monthly maintenance and
cleaning; (i) service providers and parts installers other than the
Company; (j) improperly trained and inexperienced operators; (k)
overhauling or altering of the system.
5. CUSTOMER OBLIGATIONS: Customer agrees to comply with all Presstek
installation and operating instructions including, but not limited to
regular daily/weekly/monthly maintenance as specified in the users guide.
Customer shall not: (1) abuse, misuse, or neglect the System or Software;
(2) modify or make attachments to the System or Software without prior
authorization by Presstek; (3) operate the System or Software in a location
with excessive dirt, dust, moisture, fumes, humidity or extremes of
temperatures; (4) allow maintenance of the System or Software by others
without authorization from Presstek; (5) use or combine the System or
Software with systems or software provided by others; (6) assign or cancel
this Agreement; or (7) transfer parts or software from other Presstek
Systems to the System and Software covered by this Agreement. If Customer
adds any Presstek option to the System or Software during the term of this
Agreement, Customer agrees to purchase System Maintenance and Software
Support for that option at the then applicable rate. Customer agrees to
maintain the Software at the revision level deemed necessary by Presstek.
Customer acknowledges and understands the modem(s) and line conditioners
provided by Presstek remain the property of Presstek and are to be used
solely for the purposes of providing remote diagnostics and detailed
services. Upon termination or expiration of this Agreement, Customer agrees
to allow Presstek access to the Site to remove any modem(s) and line
conditioners. Presstek may suspend or refuse Hardware System Maintenance of
Software Support, impose additional charges, or terminate this Agreement if
the Customer fails to perform its obligations under this Agreement.
Customer must maintain a stable environment with relative humidity and room
temperature as per the said equipment guidelines.
6. TERM: The initial term of this agreement is for one year from the Agreement
Term Start Date, or for the period specified in the Agreement Term Dates.
This Agreement shall renew automatically for successive periods of one
year, on the same terms and conditions at Presstek's then prevailing
prices, except that it shall not be renewed if either party provides
written notice of non-renewal at least thirty days prior to expiration of
the then current term of the Agreement.
7. ADDITIONS AND DELETIONS: New equipment may be added to, and replacements
deleted from this agreement upon receipt of ten days written notice to
Presstek, subject to written acceptance by Presstek. This provision may be
waived if new equipment is purchased from Presstek.
8. LIMITED WARRANTY: Presstek warrants that services will be performed in a
workmanlike manner in accordance with reasonable commercial standards.
Parts
PRESSTEK DI
Customer Support Agreement
are warranted against defects solely to the extent of the manufacturer's
warranty, if any. Labor provided by Presstek is warranted for 30 days from
date of service.
9. ACCESS: Customer agrees to make the System and Software available for
maintenance within a reasonable time after arrival of support personnel.
Customer shall not remove the System or Software from Site without the
prior written consent of Presstek. If the consent is given, Presstek will
install the System and Software at Customer's expense after relocation.
10. SITE REQUIREMENT: Customer agrees to provide a Site which meets Presstek
environmental and electrical specifications, including a source of electric
power consisting of either a separate electric line installed from the main
junction box for each unit of the system or a Presstek authorized power
conditioning device. To permit continuity of support under this Agreement,
the Customer will not remove the System or Software from the site without
the prior written consent of Presstek. In addition to any other remedies,
Presstek reserves the right to adjust the price, temporarily discontinue
Support under this Agreement, or terminate the Agreement if the System or
Software is so removed.
11. MAINTENANCE AND SUPPORT LIMITATIONS: System Maintenance and Software
Support are contingent upon the System and Software being unmodified and
properly maintained at the latest revision level. If the System and
Software are not under warranty immediately prior to the effective date of
this Agreement, Presstek may inspect the System and Software to determine
whether they are in proper operating condition and at least the latest
revision level. This inspection and any repairs, adjustments, or updates
deemed necessary by Presstek shall be made at customer's expense prior to
commencement or continuation of System maintenance and Software Support.
12. PARTS: Presstek will supply replacement parts it considers necessary on an
exchange basis. PARTS OR SYSTEMS MAY BE NEW, SERVICABLE USED, OR
REPROGRAMMABLE ITEMS EQUIVALENT TO NEW IN PERFORMANCE. Replaced parts or
components shall become the property of Customer and exchanged parts shall
become the property of Presstek. Expendable and/or consumable parts such as
printing plates, rollers, including but not limited to, maintenance kits,
blankets, and covers are not covered by this Agreement.
13. WARRANTY EXCLUSION: Presstek MAKES NO WARRANTY OF ANY KIND UNDER THIS
AGREEMENT, EITHER EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14. LIMITATION OF LIABILITY: PRESSTEK SHALL NOT BE HELD RESPONSIBLE FOR
PRESSTEK'S INABILITY TO PROVIDE TIMELY SERVICE DUE TO DELAYS. IN NO EVENT
WILL PRESSTEK, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR AFILIATES,
BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTIAL, INDIRECT, SPECIAL
OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR
BUSINESS
PRESSTEK DI
Customer Support Agreement
INFORMATION, LIABILITY TO THIRD PARTIES, AND THE LIKE, ARISING OUT OF THE
USE OR INABILITY TO USE THE EQUIPMENT. PRESSTEK'S LIABILITY TO CUSTOMER (IF
ANY) FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF
THE FORM OF THE ACTION, WILL BE LIMITED TO AND IN NO EVENT EXCEED THE
AMOUNT PAYABLE BY CUSTOMER FOR SERVICE AND MAINTENANCE SUPPORT ON THE UNIT
OF THE EQUIPMENT INVOLVED, AS LISTED FOR THE THREE (3) MONTHS IMMEDIATELY
PRECEEDING THE EVENT WHICH ALLEGEDLY GAVE RISE TO THE DAMAGES.
15. APPLICABLE LAW: This Agreement shall be considered, interpreted and
enforced in accordance with the laws of the State of New Hampshire. Any
disputes under the Agreement or concerning the business relationship
between the parties must be litigated exclusively in the courts of the
State of New Hampshire. If, however, the parties have agreed in writing to
arbitrate their disputes, the arbitration must take place elsewhere. The
prevailing party in the action concerning this Agreement or the business
relationship between the parties shall be entitled to an award of costs and
reasonable attorney's fees. Any notice or other communication required
under this Agreement shall be deemed to have been duly given if it is
delivered personally or by facsimile with proof of receipt, or sent by
registered or first-class mail, return receipt requested, first class
postage prepaid, to a party at the address listed or such address provided
by the party.
16. FORCE MAJEUIRE: Presstek shall have no obligations hereunder for repairs,
maintenance, or replacements caused by operator error; maintenance of the
System or Software by others without authorization from Presstek, acts of
God, or other events beyond the control of Presstek.
17. GENERAL: This Agreement and its attachments, as accepted by Presstek and
Customer, supersede any previous written or oral agreements or
understandings between the parties concerning the subject of the agreement,
and constitute the entire such agreement between the parties. No amendments
or additions to the terms and conditions of this Agreement shall be valid
unless set forth in writing and signed by an authorized representative of
each of the parties. Waiver by either party of a breach of any of the
provisions shall not constitute a waiver of any succeeding breach of such
provision or a waiver of such provision itself. The invalidity or
unenforceability of any term or provision of this Agreement shall in no way
impair or affect the remainder of the Agreement, which shall continue in
full force and effect.
18. INDEMNIFICATION: Each party shall indemnify and hold the other harmless
from and against any claim, loss, liability, or expense, including but not
limited to, damages, costs and attorney fees, arising out of or in
connection with any acts of omissions of the other party and its agents and
employees.
PRESSTEK DI
Customer Support Agreement
ACCEPTANCE OF CUSTOMER SUPPORT AGREEMENT
PRESSTEK POWER IMAGES
---------------------------------- -----------------------------------
(Signature) Please sign on the line above to accept the Terms and Conditions of
this Agreement.
---------------------------------- -----------------------------------
Print Name Print Name
---------------------------------- -----------------------------------
Date Date
PRESSTEK DI
Customer Support Agreement
Appendix A
----------
Customer Support Offerings for
Xerox DocuColor 233 DI
PRICING SUBJECT TO CHANGE WITHOUT NOTICE.
ALL INCLUSIVE COVERAGE
COVERAGE FOR COMPLETE SYSTEM INCLUDING PRESS COMPONENTS
AVAILABLE MONDAY - FRIDAY 8:00 A.M. - 5:00 P.M.
DOCUCOLOR 233 DI :$[CONFIDENTIAL TREATMENT REQUESTED] /*/ PER YEAR
6-MONTH EXTENDED WARRANTY - LABOR ONLY
AVAILABLE MONDAY - FRIDAY 8:00 A.M. - 5:00 P.M.
DOCUCOLOR 233 DI:$[CONFIDENTIAL TREATMENT REQUESTED] /*/
DIGITAL AND ELECTRONICS SUPPORT COVERAGE
COVERAGE FOR ALL DI AND ELECTRONIC RELATED COMPONENTS
AVAILABLE MONDAY - FRIDAY 8:00 A.M. - 5:00 P.M.
DOCUCOLOR 233 DI: $[CONFIDENTIAL TREATMENT REQUESTED] /*/ PER YEAR
BASIC SUPPORT COVERAGE
PER INCIDENT $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER ON-SITE CALL
LABOR $[CONFIDENTIAL TREATMENT REQUESTED]
/*// HOUR M-F 8AM-5PM
WEEKEND/HOLIDAYS $[CONFIDENTIAL TREATMENT REQUESTED]
/*//HOUR
PARTS VARIABLE PRICING
TELEPHONE SUPPORT $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER CALL
OPTIONAL TRAINING
ON-SITE PRESS OR PRE-PRESS TRAINING $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER DAY PER PERSON*
PRESSTEK DI
Customer Support Agreement
CLASSROOM PRESS OR PRE-PRESS TRAINING $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER 3-DAYS*
ON-SITE "UPTIME" SEMINAR $[CONFIDENTIAL TREATMENT REQUESTED]
/*/ PER 3-DAYS
*MINIMUM OF 2 PEOPLE IN THE PRESS CLASS, MINIMUM OF 3 PEOPLE IN THE PRE-PRESS
CLASS.
Appendix A
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
PRESSTEK DI
Customer Support Agreement
RESTATEDSERVICE AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
EXHIBIT J-2
Xerox / Presstek Service Procedure Outline
--------------------------- ------------- -------------------- ----------------------------------------------
Process Step Who How What
--------------------------- ------------- -------------------- ----------------------------------------------
--------------------------- ------------- -------------------- ----------------------------------------------
Customer Calls Customer Presstek 1-800-XXX o Create a Log and assign a Log number
Support Center Customer o Verify customer account info.
Support Answer call as o Verify Serial Number.
Center `Xerox Service' o Verify Service Contract entitlement.
o Log the problem.
o Attempt resolution of problem
o Dispatch Service as required
--------------------------- ------------- -------------------- ----------------------------------------------
Service / Customer Presstek Cell Phone or Pager o Contact available support rep.
Support Rep. Dispatched Tech Support o Provide call information.
o Press Technician o Provide customer account
o PrePress expert information to the support rep.
o Press
demonstrator
--------------------------- ------------- -------------------- ----------------------------------------------
Service / Customer Presstek Phone o Contact customer within 60 minutes
Support Rep. Calls Service / after notification to discuss the
customer to verify Customer problem and attempt resolution over the
problem and attempt support rep. phone.
problem resolution as o If unable to resolve. Inform
appropriate customer of estimated time of arrival.
(make commercial best effort to arrive
on site within 24 hrs. max)
o Determine parts required if
possible.
o Notify the Welcome center of
progress
--------------------------- ------------- -------------------- ----------------------------------------------
Customer Support Center Presstek Phone o Welcome Center will update / close
updates log / sends parts Customer the log as appropriate.
ahead to account Support o Log parts required.
Center o Send parts ahead to the account as
necessary as directed by the service
rep.
-------------------------------------------------------------------------------------------------------------
PRESSTEK DI
Customer Support Agreement
--------------------------- ------------- -------------------- ----------------------------------------------
Support Rep. on site at Presstek On site visit. o Determine plan for resolution.
the account. Determine Service / o Attempt resolution for `X' hours.
the cause of the problem. Customer o If unsuccessful, contact Welcome
Plan and implement support rep. center to request 2nd level support.
resolution actions. o Set customer expectations on next
steps.
--------------------------- ------------- -------------------- ----------------------------------------------
--------------------------- ------------- -------------------- ----------------------------------------------
Call close out with Presstek Phone Support Rep. will contact the Welcome Center
Customer Support Center. Service / to close out the call.
Customer
support rep.
--------------------------- ------------- -------------------- ----------------------------------------------
--------------------------- ------------- -------------------- ----------------------------------------------
Customer Support Center Presstek Phone and Network o Welcome Center completes fields on
updates and closes log. Customer the problem log form and closes the
Initiates the billing Support call.
process. Center o Information is communicated to the
Presstek Billing Department
to initiate invoice to the customer.
-------------------------------------------------------------------------------------------------------------
RESTATED SERVICE AGREEMENT
between PRESSTEK, Inc. and XEROX Corporation
EXHIBIT J-3
-----------
SPAR Reports and Technical Notes (Bulletins)
--------------------------------------------
Supplier Technical Support will provide a report, upon request, but not to
exceed the frequency of once per calendar month, to Xerox Technical Support.
This report will consist of :
(a) A listing of all Supplier problems that were reported during the
reporting period as well as all problems that currently in "open"
status. The report will include, but is not limited to the following
information:
(i) The Supplier problem number and Supplier bug number if applicable
(ii) The problem status (example: open, closed)
(iii) A short description of the problem
(iv) The contact ID of the Xerox representative that reported the problem
(v) The date that the problem was opened
(vi) The date that the problem was closed, if applicable
(vii) The assigned severity of the problem
(viii) Any other information about the problem that is deemed mutually
necessary by both Supplier and Xerox and is available in the Supplier
Technical Support database.
(B) TECHNICAL NOTES FOR THE SUPPLIER, ASSOCIATED SOFTWARE AND RELATED
ENVIRONMENTAL ISSUES ARE DEVELOPED FROM TIME TO TIME BY SUPPLIER
TECHNICAL SUPPORT. THESE NOTES ARE INTENDED FOR CONSUMPTION BY THE
XEROX TECHNICAL SUPPORT ORGANIZATION, XEROX FIELD REPRESENTATIVES AND
CUSTOMERS. THEY WILL BE DISTRIBUTED IN A TIMELY FASHION AS THEY ARE
BECOME AVAILABLE TO A DESIGNATED XEROX CONTACT POINT.
RESTATED SERVICE AGREEMENT
BETWEEN PRESSTEK, INC AND XEROX CORPORTATION
EXHIBIT J - 4
--------------------------------------------------------------------------------
XEROX DC233 SERVICE TRAINING
Description Xerox Cost*
--------------------------------------------------------------------------------
Basic Electro/Mechanical and Operators Training [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------------------------------------------------------------------
Advanced Electro/Mechanical and Operators Training [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------------------------------------------------------------------
Direct Imaging Training [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------------------------------------------------------------------
Notes:
--------------------------------------------------------------------------------
The basic training is a two week course located at Ryobi's factory in Japan.
--------------------------------------------------------------------------------
The advanced training is a one week course located at Ryobi's factory in Japan.
--------------------------------------------------------------------------------
The direct imaging training is a one week course located at Presstek's factory
in New Hampshire
--------------------------------------------------------------------------------
* a minimum of 3 and a maximum of 6 people per training session.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XEROX DC400 SERVICE TRAINING
Description Xerox Cost*
--------------------------------------------------------------------------------
Basic Electro/Mechanical and Operators Training [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------------------------------------------------------------------
Advanced Electro/Mechanical and Operators Training [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------------------------------------------------------------------
Direct Imaging Training [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------------------------------------------------------------------
Notes:
--------------------------------------------------------------------------------
The basic training is a three week course located at Adast's factory in the
Czech Republic.
--------------------------------------------------------------------------------
The advanced training is a one week course located at Adast's factory in the
Czech Republic.
--------------------------------------------------------------------------------
The direct imaging training is a one week course located at Presstek's factory
in New Hampshire
--------------------------------------------------------------------------------
* a minimum of 3 and a maximum of 6 people per training session.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XEROX PREPRESS TRAINING
Description Xerox Cost*
--------------------------------------------------------------------------------
Harlequin RIP Training [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------------------------------------------------------------------
Notes:
--------------------------------------------------------------------------------
* a minimum of 3 and a maximum of 6 people per training session.
--------------------------------------------------------------------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
