EXHIBIT 10.39
REDACTED
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
OEM PURCHASE AGREEMENT
JetFax, Inc., (JetFax) a Delaware corporation having its principal place of
business at 0000 Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000, agrees to purchase and Oki
America, Inc., a Delaware corporation, through its OKIDATA division, having a
principal place of business at 000 Xxxxxxxxxx Xxxx, Xx. Xxxxxx, XX 00000
(OKIDATA) agrees to sell the Product(s), Spares Accessories and Consumables (all
as defined herein), together with their associated documentation, at the prices
set forth in Exhibit A and upon the terms and conditions set forth herein.
"Products" as used herein pertains to facsimile engines as defined by the
Specifications in Exhibit B. "Spares" as used herein means standard spare parts
as listed in OKIDATA's RSPL (Recommended Spare Parts List) for the Products, a
copy of which is contained in Exhibit C and unique spare parts as set forth in
Exhibit D. "Consumables" as used herein means toner cartridges and image drums
as set forth in Exhibit A. "Accessories" as used herein means a second paper
tray as set forth in Exhibit A.
1. TERM OF AGREEMENT
The term of this Agreement shall be two (2) years commencing on the date on
which the last of the parties executes this Agreement (the Effective Date).
Orders placed during this twenty four (24) month ordering period must be
scheduled for delivery within thirty (30) months of the Effective Date.
2. CUSTOMER ORDERS
Purchases by JetFax will be by individual written JetFax purchase orders made
during the term of this Agreement, which orders will be accepted by OKIDATA so
long as they comply with the terms and conditions of this Agreement. Orders will
be accepted with OKIDATA's Order Acknowledgement (OA) form. If an OA is not
issued within ten (10) business days of receipt of order, the order will be
deemed accepted. The first purchase order (the Initial Order) is to be issued
simultaneously with the execution by JetFax of this Agreement for a quantity of
no less than twenty (20) percent of the Specified Quantity of all Product(s)
listed in Exhibit A, (i.e. 1000 units) and must specify delivery within six (6)
months of the Effective Date. Each purchase order, subject to the conditions set
forth in Section 4 below, shall set forth the desired delivery schedule for each
Product.
3. PRICES
A. The prices set forth in Exhibit A are based on purchase by JetFax of a
minimum of [*] of Product in each year of the term of this
Agreement. If, during the term of this Agreement JetFax does not purchase a
minimum of [*] of Product, OKIDATA may retroactively increase
the unit price by [*]. If, during the term of this Agreement,
JetFax purchases between [*] total units of Product, the unit
price will be increased retroactively by [*] per unit.
B. OKIDATA agrees to make Spares and Consumables available to JetFax for a
minimum of five (5) years after last shipment of Product to JetFax. During
the term of this Agreement, Spares will be invoiced at a [*] discount
from OKIDATA's U.S. Dealer list prices. Thereafter, the discount will be as
specified in Exhibit C.
C. OKIDATA will accrue an amount equal to [*] off the net invoice
value of all Product(s) purchased hereunder in an account maintained by
OKIDATA. Such accrued amount shall be applied as a credit towards the
payment of any amounts due from JetFax for the purchase of Spares
hereunder.
4. DELIVERY SCHEDULES
A. Requested delivery dates for Product(s), Accessories and Image Drum Kits
purchased hereunder shall be no sooner than one twenty (120) days after
receipt of a purchase order, FOB JAPAN.**
Requested delivery dates for Spares shall be no less than 90 days from
receipt of order. For non-unique Spares, OKIDATA will make reasonable
efforts to deliver reasonable quantities within in two weeks of order.
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** Image drums purchased FOB Mt. Laurel, N.J., will be 2 weeks from receipt
of purchase order by Okidata.
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HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Requested delivery dates for toner cartridges shall be no less than
fourteen (14) days after receipt of order for product in standard packaging
and sixty (60) days in custom packaging.
Notwithstanding the above order leads, OKIDATA will, on request, make
reasonable efforts to shorten the lead for demand exceeding forecast
quantities. All or the above lead times are contingent on OKIDATA's receipt
of the monthly forecast as set out in paragraph 7, below.
5. RESCHEDULING OF DELIVERIES
A. Rescheduling of deliveries is permitted up to the 46th day prior to
scheduled delivery. Thereafter, no rescheduling will be permitted.
6. CANCELLATION CHARGES
A. Cancellation is permitted up to the 46th day prior to scheduled delivery
date. Thereafter, no cancellation is permitted.
7. CUSTOMER FORECASTS
Once each month JetFax will furnish to OKIDATA a written non-binding
forecast of its requirements for the Product(s) for the ensuing twelve
months.
8. PAYMENT
A. Payment for purchases hereunder will be due net 30 days from date of
receipt by JetFax in the U.S. of the products invoiced. Pending
establishment of open credit terms, and prior to or simultaneous with
issuance of its initial purchase order, JetFax will establish an escrow
account or standby letter of credit acceptable to OKIDATA, in the amount of
[*] to secure the purchase price of the products ordered. For each
scheduled delivery or products the escrow or letter of credit is to be
maintained at a level at least equal to [*] of the value of each delivery.
This funding process is to occur at least 45 days prior to the dates of all
scheduled shipments. This secured ratio [*] of the second and all
subsequent shipments will remain in effect until JetFax has proven that
they are capable of sustaining open credit terms at which time the advance
security requirement and the discount described in paragraph B., below,
will cease. If JetFax does not comply with payment terms as specified
herein, OKIDATA reserves the right to modify the amount of security
required.
B. OKIDATA will give JetFax a discount equal to [*] of the net
invoice amount on the portion of each delivery secured by the escrow or
letter of credit.
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HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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C. Prices are exclusive of any sales, use, property, and like taxes. Any such
tax OKIDATA may be required to collect or pay upon the sale or delivery
of the Products, other than taxes based on OKIDATA's income, shall be
promptly reimbursed by JetFax.
D. All prices in this Agreement are in U.S. Dollars.
9. PATENT INDEMNITY
A. OKIDATA agrees to indemnify, defend and hold JetFax harmless from and
against any claim, suit or proceeding to the extent that such claim or
proceeding is based on a claim that Products (for purposes of this Section
9, Product will include Accessories) purchased hereunder infringe any
patent rights, provided that OKIDATA is notified promptly in writing and
given complete authority, information and assistance required for defense
of same, and OKIDATA shall pay all damages and costs as a result thereof.
OKIDATA, however, shall not be responsible for any settlement made by
JetFax without OKIDATA's prior written consent.
B. In the event any Product furnished hereunder is, in OKIDATA's reasonable
opinion, likely to or does become the subject of a claim of infringement,
OKIDATA may, at its option and expense, procure for JetFax the right to
continue using the Product, replace same with a non-infringing Product or
Accessory of similar capability, or modify the Product so it becomes non-
infringing (but has similar capability). In the event none of the foregoing
alternatives is commercially reasonable, and provided that there is a bona
fide claim of infringement, in order to minimize its liabilities hereunder,
OKIDATA may terminate this Agreement and the obligation to sell Product to
JetFax hereunder by written notice to JetFax; provided however, that
notwithstanding such termination, (i) the indemnity provided in paragraph A
hereof shall still apply and remain in full force and effect, and
(ii) OKIDATA shall promptly repurchase from JetFax at full cost, all
units of Product purchased by JetFax under this Agreement and not yet
resold by JetFax and JetFax will promptly return, same per the prior
written instructions of OKIDATA, which shall not be unreasonably withheld.
C. OKIDATA shall have no responsibility or liability for any claim of
infringement (i) arising out of the use of its Products in combination with
non-OKIDATA products, or (ii) if such infringement arises out of Product
manufactured to JetFax's design, or (iii) if such infringement arises as a
result of a modification to the product not made by or for OKIDATA, if, and
only if, such infringement would have been avoided by the use of the
Product without such combination, manufacture to JetFax design or
modification.
D. The foregoing states the entire liability of OKIDATA 'with respect to
infringement of any patent by the Products or any parts thereof and,
anything herein to the contrary notwithstanding, OKIDATA's liability to
JetFax hereunder shall in no event exceed the total price plus taxes and
other associated charges paid to OKIDATA by JetFax for all infringing or
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allegedly infringing Product purchased pursuant to this Agreement.
10. TERMINATION
This Agreement may be terminated or canceled as follows:
A. By either party at any time pursuant to the provisions of this Section 10,
if the other party violates any provision of this Agreement. The defaulting
party shall have a period of thirty (30) days from the date of receipt of
written notice from the non-defaulting party describing the default within
which to remedy the default. The termination shall become effective at the
end of the thirty (30) day period if the defaulting party has failed to
remedy the default.
B. If either party (i) admits in writing its inability to pay its debts
generally as they become due, or (ii) makes an assignment for the benefit
of its creditors, or (iii) institutes or consents to the filing of a
petition in bankruptcy, whether for reorganization or liquidation, under
federal or similar applicable state laws, or (iv) is adjudged bankrupt or
insolvent by a court having jurisdiction, then in either of such events,
the other party may, by written notice, immediately terminate this
Agreement.
C. JetFax's obligation to pay for all Products received by it hereunder shall
survive termination of this Agreement. In the event that OKIDATA terminates
the Agreement for default, OKIDATA will honor any Purchase orders which it
has accepted, but reserves the right to change payment terms as it deems
necessary.
11. SHIPPING AND RISK OF LOSS
Prices of Product(s), Accessories and Image Drum Kits are FOB Japan. Prices
of Spares and Consumables are FOB OKIDATA's U.S. facilities. Title and risk
of loss pass to JetFax at the time and place of delivery as soon as OKIDATA
has put the goods in the possession of the carrier. OKIDATA will package
the Products in accordance with accepted standard commercial practices for
normal shipment considering the type of Product involved and the normal
risks' encountered in shipments. JetFax shall designate the method of
shipment on each individual purchase order issued against this Agreement.
OKIDATA shall arrange for shipment by the designated method. All
transportation charges are freight collect.
12. LIMITATION OF LIABILITY
In no event will either party be liable for loss of profits or incidental,
special, or consequential damages arising out of any breach of obligations
under this Agreement.
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13. TRAINING
OKIDATA will provide one course for six (6) JetFax employees for a period
appropriate to the particular Product purchased (usually two (2) days). The
course will be given at OKIDATA's Mt. Laurel facility and will be scheduled
at a mutually agreeable time. OKIDATA will provide course material and
documentation free of charge. Travel and living expenses are to be borne by
JetFax. On-site training may be given at JetFax's expense and in accordance
with OKIDATA's policy at the time of execution of this Agreement.
14. VALUE ADDED
JetFax warrants and represents that the Products purchased hereunder are
for use and resale as part of, or as accessories to, equipment manufactured
or assembled by or for JetFax. OKIDATA grants JetFax the right to
incorporate the products purchased hereunder into any such equipment.
15. EXPORT RESTRICTIONS
JetFax agrees that it shall not at any time make or permit any export or
reexport of OKIDATA products directly or indirectly to any country, without
full compliance with United States export laws and regulations as issued by
the United States Department of Commerce, Office of Export Administration,
as amended from time to time, as those laws and regulations apply to
OKIDATA products, and all other things delivered to, or derived from things
delivered to, Customer under the OEM Purchase Agreement.
16. CONFIDENTIALITY AND PROPRIETARY RIGHTS
Each party agrees that it shall not disclose to any third party, or use for
its own benefit, except as expressly permitted herein and other than is
necessary for its performance under this Agreement, any trade secrets,
technical data, methods, processes or procedures or any other confidential,
financial, or business information or data of the other party, which is
disclosed by one party to the other in the course performance of the OEM
Purchase Agreement, without the prior written consent of the party
asserting ownership of the information. This obligation shall survive the
cancellation or other termination of the OEM Purchase Agreement.
This Section 16 shall not apply to any data or information which
(a) becomes generally known or available through no fault of the receiving
party; (b) is already known to the receiving party at the time of receipt
as evidenced by its written records; (c) is received from a third party
without breach of the confidentiality obligations of this Agreement; or
(d) is required by court order or operation of law.
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17. DOCUMENTATION AND SUPPORT
OKIDATA grants JetFax the right to use and modify OKIDATA user and service
documentation for distribution to JetFax customers as necessary only for
use and maintenance of JetFax products to the extent that these products
incorporate products purchased under this Agreement. JetFax will place a
copyright notice in any such reproduction or derivative work acknowledging
OKIDATA's copyrights. JetFax will not use any OKIDATA trademark without an
appropriate statement acknowledging OKIDATA's ownership of the xxxx.
OKIDATA will use reasonable efforts to assist in the development of,
diagnose problems in and provide ongoing assistance for its deliverables.
OKIDATA will provide all documentation necessary for JetFax to obtain
safety and certification approvals.
18. WARRANTY
All items purchased under this Agreement are warranted by OKIDATA to be
free from defects in materials and workmanship at the time of delivery.
Within thirty (30) days of receipt, JetFax will inspect Product(s), Spares,
Consumables and Accessories purchased hereunder and will notify OKIDATA in
writing of any claimed defects. OKIDATA will, at its option, repair or
replace any items which are defective. Should OKIDATA opt to perform
repairs at its facility, JetFax will bear the cost and risk of loss for
return of the products to OKIDATA and OKIDATA will be at the cost and risk
of loss for return of repaired or replacement items to JetFax within the 48
contiguous United States.
In the event of an epidemic failure, which, for purposes of this Agreement,
will mean a failure due to the same cause occurring in more than 5% of the
Products in any given delivery, OKIDATA will provide JetFax with a parts
kit to correct the problem.. These kits will be shipped at no charge to
JetFax, who will be responsible for the cost of labor required to install
the parts.
The above constitutes JetFax's sole remedy under this warranty.
19. TOOLING
JetFax agrees to pay to OKIDATA the sum of [*] for non-recurring
engineering (NRE) charges, for tooling related to changes to the left side
panel of the Product. This NRE charge will be amortized over the first [*]
units of Product purchased, at the rate of [*] per unit. If, during the
term of this Agreement, JetFax does not purchase [*] units, the remaining
unamortized amount of NRE will be invoiced and JetFax agrees to pay same.
If OKIDATA terminates this Agreement because of breach by JetFax, the
unamortized amount will be invoiced and JetFax agrees to pay the balance no
later than the due date for payment of any outstanding invoices for
products delivered pursuant to the Agreement.
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HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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All tooling changes performed pursuant hereto are exclusive to JetFax, and
OKIDATA shall not use the part or parts as modified by such tooling changes
other than pursuant to this Agreement or license to otherwise allow the use
of the part or parts as modified by such tooling change by anyone other
than JetFax.
20. GENERAL PROVISIONS
A. All notices required to be given hereunder will be sent by registered or
certified mail, return receipt requested, postage prepaid, forwarded to the
appropriate party at the address shown below, or at such other addresses as
that party may, from time to time, advise in writing, and which have been
received in the ordinary course of post.
B. Neither party shall have the right to assign its rights or obligations
under this Agreement except with the written consent of the other party,
provided, however, that a successor in interest by merger, by operation of
law, or by assignment, purchase or otherwise of all or substantially all of
the business of either party, shall acquire all interest of such party
hereunder and may receive an assignment hereof without such consent. Any
prohibited assignment shall be null and void.
C. The failure of either party to enforce at any time the terms, conditions,
requirements, or any other provisions of this Agreement shall not be
construed as a waiver by such party of ay succeeding non-performance of the
same term, condition, requirement or any other provision of this Agreement.
D. The headings of paragraphs contained herein are for convenience and
reference only and are not a part of this Agreement, nor shall they in any
way affect the interpretation thereof.
E. The parties agree that if any portion of this Agreement shall be held
illegal and/or unenforceable, the remaining portions of this Agreement
shall continue to be binding and enforceable provided that the effectivity
of the remaining portion of this Agreement would not defeat the overall
business intent of the parties, or give one party any substantial financial
benefit to the detriment of the other party.
F. This Agreement and its appendices shall be governed by the laws of the
State of Delaware, excluding its conflicts of law rules. Any disputes
arising out of or pertaining to this Agreement are to be settled by
arbitration to be conducted by a mutually agreed on alternate dispute
resolution organization. Arbitration will take place in Philadelphia, PA if
JetFax initiates the proceedings, and in San Francisco, CA if OKIDATA
initiates the proceedings.
G. This Agreement constitutes the entire Agreement between the parties and
supersedes all prior discussion, either oral or in writing, including,
without limitation, the Memorandum of Understanding dated January 17, 1995.
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H. The terms and conditions of this Agreement will prevail notwithstanding any
variance with the terms and conditions of any order or release submitted by
Customer, or any release acknowledgment returned by OKIDATA. Except as
expressly set forth in this Agreement, this Agreement shall not be deemed,
or construed to be, modified, amended, rescinded, or canceled in whole or
in part, except by written amendment executed by the parties hereto.
I. The provisions of Sections 3.B., 9, 10.C., 12, 14 and 16 shall survive the
termination or expiration of this Agreement.
J. EXHIBIT A, PRICING, EXHIBIT B, SPECIFICATIONS, EXHIBIT C, SPARE PARTS, and
EXHIBIT D, UNIQUE SPARES, attached hereto, are hereby incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties hereto have set their names on the
dates hereinafter set forth.
JetFax Inc. OKIDATA
/s/ XXXXXX X. XXXXXX /s/ XXXXXX X. XXXX
__________________________________ _________________________________
(Signature) (Signature)
XXXXXX X. XXXXXX XXXXXX X. XXXX
__________________________________ _________________________________
(Typed/Printed Name) (Typed/Printed Name)
PRESIDENT MANAGER, CONTRACTS
__________________________________ _________________________________
(Title) (Title)
2-21-95 2/22/95
__________________________________ _________________________________
(Date) (Date)
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EXHIBIT A
F.O.B
SPECIFICATION ORDER ANNUAL JAPAN
PRODUCT NUMBER MULT QUANTITY PRICE
------- ------------- ------ -------- --------
[*]
ACCESSORIES/CONSUMABLES PRICING
-------------------------------
SPECIFICATION ORDER
PRODUCT NUMBER MULT PRICE
------- ------------- ------ -----
[*]
NOTE
[*]
MGB, 02/13/95
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EXHIBIT B
Issue 1a February 1995
SPECIFICATION OF THE FAX ENGINE
FOR JETFAX
OKI Data Corporation
0-00-00, Xxxxxxxx, Xxxxxx-xx, Xxxxx, Xxxxx
Telephone: x00 0 0000 0000
Fax: x00 0 0000 0000
CONTENTS
Chapter 1: General Description
Chapter 2: General Performance
Chapter 3: Physical Description
Chapter 4: BLANK
Chapter 5: Document Input
Chapter 6: Document Output
Chapter 7: BLANK
Chapter 8: Environmental Requirements
Chapter 9: BLANK
Chapter 10: Expanded View and Parts List
Chapter 11: BLANK
Chapter 12: Shipping Conditions
1. GENERAL DESCRIPTION
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2. GENERAL PERFORMANCE
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3. PHYSICAL DESCRIPTION
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5. DOCUMENT INPUT
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6. Document Output
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8. ENVIRONMENTAL REQUIREMENTS
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ASSEMBLY
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SECTION 1 CABINET ASSEMBLY
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SECTION 3 PRINTER ASSEMBLY
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SECTION 4 BASE ASSEMBLY
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SECTION 5 SCAN ASSEMBLY
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SECTION 5 DETAIL A SCAN UNIT
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SECTION 5 DETAIL B PAPER GUIDE ASSEMBLY
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SECTION 6 CABLES
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12. Shipping Conditions
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4. Counters/Correction Value Check Commands
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VIDEO INTERFACE TIME CHART
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COMMAND INTERFACT TIME CHART
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OPERATION PANEL INTERFACE
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REMARKS
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EXHIBIT C - SPARE PARTS
-----------------------
A. Spare parts and the prices therefor, for Products purchased hereunder
shall be listed in OKIDATA'S Suggested End-User Price List issued from time
to time by OKIDATA. Suitable spare parts will be available for a period of
five (5) years from date of last delivery under this Agreement and may be
purchased by the issuance of a Customer purchase order acceptable to
OKIDATA. If Customer requires spare parts after they are no longer
available from OKIDATA, OKIDATA will provide available drawings or purchase
specifications to assist Customer in obtaining the Products from other
sources. The documentation to be supplied will be that documentation as is
in existence at that time.
B. Minimum spare parts order [*]
C. Prices for spare parts shall be invoiced at [*] discount from the Suggested
End-User Price List unless, in the twelve (12) month period immediately
preceding the Effective Date, Customer shall have purchased and paid for
spare parts from OKIDATA in an amount exceeding [*] or Customer anticipates
purchasing the same within the first twelve (12) months after the Effective
Date.
(i) If the amount previously purchased exceeds [*] or Customer
anticipates purchasing same within the term of this Agreement, the
discount shall be [*]
(ii) If the amount previously purchased exceeds [*] or Customer
anticipates purchasing same within the term of this Agreement, the
discount shall be [*]
D. Ribbons and manuals have special pre-discounted price and are, therefore,
not subject to the above discount percentages. OKIDATA offers additional
discounts for large volume orders.
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Exhibit D
Unique Parts List for JetFax XX
XXX # OKI-Japan Part # Description List Price
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