PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made this 25th day of February,
1999 by and between Clarion Corporation of America, a California corporation
("CLARION") and Xxxxxx Electronics Corporation, a New York corporation
("XXXXXX").
RECITALS
WHEREAS, CLARION has developed and markets and sells the Clarion AutoPC
(the "AutoPC Product"), an information, communication, navigation, and
entertainment system for installation in automobile dashboards.
WHEREAS, XXXXXX has developed and markets and sells the Xxxxxx
AutoArray (the "AutoArray Product") and the Xxxxxx AutoSE (the "AutoSE
Product"), each a far-field microphone product that can be used with the AutoPC
Product; and
WHEREAS, CLARION desires to purchase from XXXXXX, and XXXXXX desires to
sell to CLARION, in accordance with the terms of this Agreement, the AutoArray
Product and the AutoSE Product for sale with the AutoPC Product.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, and subject to the terms and conditions set
forth herein, the parties hereto agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings under this
Agreement:
.1 "XXXXXX Documentation" means computations, configurations, data,
designs, drawings, manuals (including without limitation installation manuals,
owner's manuals and service manuals), models, photographs, plans, renderings,
samples, schematics, sketches, specifications and any other written and tangible
materials provided by XXXXXX in connection with this Agreement.
.2 "Xxxxxx IP Rights" shall mean those intellectual property rights,
including copyrights, patents, trade secrets, trademarks, service marks and
other proprietary rights owned or otherwise controlled by XXXXXX and that are
specifically embodied in the Products.
.3 "Xxxxxx Trademarks" means those trademarks or trade names owned or
used by XXXXXX or its affiliates, and designated by XXXXXX in its sole
discretion for use in connection with the AutoArray and AutoSE Products.
.4 "CLARION Documentation" means computations, configurations, data,
designs, drawings, manuals (including without limitation installation manuals,
owner's manuals and service manuals), models, photographs, plans, renderings,
samples, schematics, sketches, specifications and any other written and tangible
materials provided by CLARION in connection with this Agreement.
.5 "Clarion Trademarks" means those trademarks or trade names owned or
used by CLARION or its affiliates, and designated by CLARION in its sole
discretion for use in connection with the AutoPC Products.
.6 "Product(s)" mean those AutoArray Products and AutoSE Products
identified on Schedule 1.5 attached hereto, and the parts and components
thereof, manufactured by XXXXXX and sold to CLARION pursuant to this Agreement.
The Products covered by this Agreement may be changed from time to time upon the
written consent of both parties.
.7 "Product Warranty" means the product warranty that XXXXXX
ordinarily and customarily provides to purchasers of the AutoArray Product or
the AutoSE Product, as the case may be, and set forth in Schedule 1.6 attached
hereto.
.8 "Purchase Orders" means the purchase orders issued by CLARION to
XXXXXX in accordance with Section 3.1.
.9 "Specifications" means the descriptive material itemizing the
functional and operational requirements of the Products to be purchased
hereunder and such other technical specifications, drawings and other material
as identified in Schedule 1.7 attached hereto. The Specifications covered by
this Agreement may be changed from time to time upon the written consent of both
parties.
2. SALE OF PRODUCTS
.1 XXXXXX agrees to sell to CLARION, and CLARION agrees to purchase
from XXXXXX, Products that conform to the Specifications. Such sale and purchase
of Products shall be made from time to time during the term of this Agreement
and in accordance with the terms and conditions of this Agreement. Specific
quantities of Products shall be ordered by CLARION for purchase by the
transmission to XXXXXX, from time to time during the term of this Agreement, of
Purchase Orders issued by CLARION in accordance with Section 3.1. CLARION shall
have no obligation to issue any Purchase Orders or purchase any Products except
such Products as are specified in Purchase Orders placed by CLARION and then
only to the extent of the Products covered under such Purchase Orders.
.2 Subject to the Xxxxxx IP Rights, CLARION shall not be restricted as
to its sale or use of the Products purchased hereunder including, without
limitation, worldwide marketing to any end user or remarketer, and use by
CLARION for its benefit or for the benefit of others. In addition, this
Agreement shall not be construed as preventing CLARION from acquiring at any
time products similar or related to the Products from any other source.
.3 To the extent that CLARION and XXXXXX conduct any of the purchase
and sale transactions hereunder through Electronic Data Interchange ("EDI") or
similar electronic means, the system employed by each to effect such transaction
shall be capable of handling calendar dates, leap year calculations and related
calendrical information processing for dates in both the twentieth and
twenty-first centuries a.d.
.4 XXXXXX represents and warrants that the Products are Y2K compliant
as such term is defined in Schedule 3.1 attached hereto.
3. PURCHASE ORDERS
.1 Placement. CLARION may place firm Purchase Orders for the delivery
of Products by XXXXXX. Each Purchase Order shall specify a delivery date of not
less than [Confidential Treatment Requested] following the date of the Purchase
Order and shall be substantially in the form set forth in Schedule 3.1.
Notwithstanding the foregoing, if CLARION requests an accelerated delivery date
in any Purchase Order, XXXXXX may, in its sole discretion, use commercially
reasonable efforts to meet such accelerated date. CLARION shall in addition,
prior to the end of each calendar month during the term of this Agreement,
provide to XXXXXX a rolling updated forecast of projected Purchase Orders for
Products by CLARION during the three (3) calendar months immediately subsequent
to such month end. Such forecast shall be for informational purposes only and
shall not be construed as a purchase commitment by CLARION.
.2 Acceptance. XXXXXX shall accept and acknowledge all Purchase
Orders, which are placed by CLARION in conformance with the terms of this
Agreement. Any Purchase Order not placed in conformance with the terms of this
Agreement must be rejected by written notice from XXXXXX to CLARION within
[Confidential Treatment Requested] after receipt of such Purchase Order. In the
event that XXXXXX uses a form of acknowledgement with terms that conflict in any
way with this Agreement, the terms of this Agreement shall be controlling.
.3 Minimum Purchase Order Quantities. Each Purchase Order for AutoArray
Products shall be for a minimum of [Confidential Treatment Requested]. Each
purchase order for AutoSE Products shall be for a minimum of [Confidential
Treatment Requested].
4. PAYMENT TERMS
.1 Prices. The total purchase prices for the Products are set forth in
Schedule 4.1 attached hereto. Prices for the Products may be changed no more
than [Confidential Treatment Requested] by XXXXXX providing CLARION with at
least [Confidential Treatment Requested] notice of the change and a new Schedule
4.1.
.2 Payment. Payment for each shipment of Products shall be net
[Confidential Treatment Requested] from the date of delivery of such shipment.
Invoices not paid in accordance with the foregoing shall be subject to a
[Confidential Treatment Requested] per month interest charge on any outstanding
balance or the maximum interest allowed by law, whichever is less, unless such
invoices are the subject of a bona fide dispute between XXXXXX and CLARION.
Invoices paid in full within [Confidential Treatment Requested] from the date of
delivery shall entitle CLARION to a discount of [Confidential Treatment
Requested] from the purchase price set forth in such invoice.
5. DELIVERY
.1 Shipment. XXXXXX will ship the Products covered by any Purchase
Order F.O.B. CLARION's warehouse. Title to the Products and risk of loss or
damage shall pass from XXXXXX to CLARION upon delivery of the Products F.O.B.
CLARION's warehouse. All shipping containers shall bear such information and
markings as shall be desired by CLARION or required by law.
.2 Acceptance. CLARION shall have the right to conduct an incoming
inspection and shall have [Confidential Treatment Requested] after delivery to
notify XXXXXX in writing whether some or all of the Products are rejected for
not meeting the Specifications. Any Product not rejected within this
[Confidential Treatment Requested] period shall be deemed accepted. In the event
CLARION rejects Products, CLARION shall provide a detailed explanation therefor,
and XXXXXX may inspect the rejected Products at CLARION's premises, replace the
rejected Products without requiring their return, or require the return of the
rejected Products, freight collect. Each Rejected Product shall be repaired or
replaced at ANDREA's expense, including return freight to CLARION.
.3 Cancellation and Rescheduling. CLARION may cancel or request
changes in delivery dates appearing in its Purchase Orders at no charge provided
written notice of such cancellation or change is received by XXXXXX not less
than [Confidential Treatment Requested] prior to the scheduled delivery date to
which the cancellation or change pertains. Any cancellation or change received
by XXXXXX less than [Confidential Treatment Requested] prior to a scheduled
delivery date shall be subject to a [Confidential Treatment Requested] charge
based on the amount of the Purchase Order or portion thereof changed or
cancelled.
6. TRADEMARKS
.1 XXXXXX shall not use the CLARION Trademarks on the Products or on
any other XXXXXX products or otherwise; provided, however, that XXXXXX may use
the CLARION Trademarks, to the extent and in a manner as specified by CLARION,
solely in connection with promotional materials and subject, however, to the
prior review and approval by CLARION of any such promotional materials. Upon the
expiration or termination of this Agreement, XXXXXX shall immediately
discontinue the use of the CLARION Trademarks, and thereafter shall not use the
CLARION Trademarks, or marks or names confusingly similar thereto, directly or
indirectly in connection with its business or that of its affiliates or
principals. During the term of this Agreement, XXXXXX will promptly notify
CLARION in the event that it learns of any infringement or unauthorized use of
the CLARION Trademarks by any person.
.2 CLARION shall not use the XXXXXX Trademarks in any manner
inconsistent with the instructions of XXXXXX nor on or in connection with any
products except as purchased and sold pursuant to this Agreement. Upon the
expiration or termination of this Agreement, CLARION shall immediately
discontinue the use of the XXXXXX Trademarks, and thereafter shall not use the
XXXXXX Trademarks, or marks or names confusingly similar thereto, directly or
indirectly in connection with its business or that of its affiliates or
principals. During the term of this Agreement, CLARION will promptly notify
XXXXXX in the event that it learns of any infringement or unauthorized use of
the XXXXXX Trademarks by any person.
7. RIGHTS IN DATA
.1 Ownership of Proprietary Rights. CLARION and its affiliates are the
exclusive owners of all right, title and interest in and to the proprietary
rights associated with or arising from the AutoPC Products and related software.
XXXXXX and its affiliates are the exclusive owners of all right, title and
interest in and to the proprietary rights associated with or arising from the
AutoArray Products and the AutoSE Products.
.2 Ownership of Document. The CLARION Document shall remain the
exclusive property of CLARION and its affiliates and shall be protected from
disclosure in accordance with the provisions of Article 12 of this Agreement.
Upon expiration or termination of this Agreement, the CLARION Documentation
(including all copies thereof) shall be promptly returned to CLARION. The XXXXXX
Documentation shall remain the exclusive property of XXXXXX and its affiliates
and shall be protected from disclosure in accordance with the provisions of
Article 12 of this Agreement. Upon expiration or termination of this Agreement,
the XXXXXX Documentation (including all copies thereof) shall be promptly
returned to XXXXXX.
8. WARRANTY
.1 Provision of Product Warranty. XXXXXX agrees to provide the
Product Warranty for each Product sold to CLARION hereunder. The Product
Warranty shall not apply to any failure or malfunction which results from any
of the following events (if applicable);
(a) improper design of the AutoPC;
(b) components, parts or materials supplied by CLARION and used in
the Product;
(c) improper installation, maintenance, operation or use of a
Product;
(d) any modification of a Product performed without ANDREA's written
approval; or
(e) any combination of a Product with another product not provided or
approved by XXXXXX, provided, however, that XXXXXX herein
acknowledges and approves the intended use of the Products in
combination with the AutoPC Product.
.2 Customer Service; Returns and Product Warranty Service.
(a) CLARION shall be responsible for and shall bear [Confidential
Treatment Requested]. Each party agrees to make its personnel available to the
other for reasonable consultation during normal business hours and at no charge
to the other for purposes relating to this Agreement.
(b) XXXXXX shall be responsible for and shall bear [Confidential
Treatment Requested]. XXXXXX shall have no liability under the Product Warranty
for any Product that is found not be in breach of the Product Warranty.
(c) Shipment to XXXXXX of any Product for Product Warranty repair or
replacement is sought shall be adequately insured by the sender, and XXXXXX
shall be liable for the cost of such shipping and such insurance.
9. QUALITY ASSURANCE
.1 ANDREA's Inspection. XXXXXX shall inspect the Products before
delivery to assure compliance with the Specifications. XXXXXX shall not delivery
any Products which fail such inspection. Upon request by CLARION, XXXXXX shall
provide the record of such finished goods inspection.
.2 Traceability. XXXXXX shall give each Product a unique serial number
which shall be recorded for purposes of defect and warranty traceability, and
XXXXXX shall maintain a recordkeeping system with such data and provide CLARION
with access to such data as necessary.
.3 Changes. If any change in the design, material or manufacturing
process for the Products (whether or not requested by CLARION) causes the
Products to be of materially different quality from prior shipments, XXXXXX
shall submit to CLARION, at least [Confidential Treatment Requested] before
production quantities are scheduled for delivery, a sample Product manufactured
under the proposed change together with a record of its inspection for CLARION's
approval; provided, however, that the Products shall continue to conform to the
Specifications notwithstanding any such change.
.4 Facility Inspection. XXXXXX shall from time to time permit CLARION
or its agent to inspect the facilities, conditions regarding quality assurance,
records and documents of XXXXXX relating to the Products, and XXXXXX shall use
commercially reasonable efforts to gain permission from ANDREA's subcontractors
for CLARION or its agent to inspect the facilities, conditions regarding quality
assurance, records and documents of such subcontractors relating to the
Products, in order for CLARION to determine whether the Products are being
manufactured under appropriate quality controls; provided, however, that such
inspections will be conducted during normal working hours with prior
notification to XXXXXX or such subcontractors, as the case may be. Any
information disclosed to or observed by CLARION or its agent during such
inspections shall be deemed to be proprietary information within the meaning of
and subject to the provisions of Article 12 of this Agreement.
.5 Abnormalities. XXXXXX and CLARION shall promptly notify each other
of any abnormalities with respect to the Products or the manufacturing process
relating to the Products if XXXXXX or CLARION believes such abnormalities
materially affect the quality or function of the Products. In such case, XXXXXX
shall promptly report to CLARION any determination made as to the root cause of
the abnormality and the countermeasures taken by XXXXXX in response thereto.
.6 Meetings. XXXXXX and CLARION shall meet periodically and from time
to time when necessary during each year of the term of this Agreement to discuss
quality assurance and product improvement and various other aspects of their
business relationship.
10. PRODUCT LIABILITY
.1 Indemnification. XXXXXX agrees to indemnify and hold CLARION and
its affiliates harmless from and against any and all liability resulting from
any and all claims by third parties for loss, damage or injury (including death)
allegedly caused by any defect in the Products purchased under this Agreement,
to the extent not caused by misuse, abuse or other fault directly attributable
to CLARION or its customers. XXXXXX shall pay all damages and costs awarded,
including reasonable attorney's fees and settlements approved by XXXXXX, against
CLARION, its affiliates and/or its or their customers, arising from any such
loss, damage or injury (including death), where such award has been made by a
court of competent jurisdiction and is not subject to appeal.
.2 Insurance. During the term of this Agreement and for a reasonable
period thereafter, XXXXXX shall maintain in full force and effect adequate
product liability insurance protecting XXXXXX, CLARION and its affiliates
against claims and liability for injury, death, or property damage which arise
out of or relate to the use or operation of the Products purchased under this
Agreement. Such product liability insurance policy shall have a minimum limit of
[Confidential Treatment Requested]. Within [Confidential Treatment Requested]
following the date of this Agreement, XXXXXX shall provide CLARION with a
certificate of insurance which provides that CLARION is insured as a vendor on
such policy and that the insurer shall not cancel such policy without providing
a minimum of [Confidential Treatment Requested] prior written notice to CLARION.
XXXXXX shall furnish additional certificates of insurance to CLARION on an
annual basis during the term of this Agreement.
11. INDEMNIFICATION FOR INFRINGEMENT
.1 ANDREA's Indemnification. XXXXXX agrees to indemnify and hold
CLARION and its affiliates harmless from and against all liabilities, damages
and costs arising out of or related to any claim of infringement or alleged
infringement of any patent, copyright, trade secret or other proprietary right
of any third party by reason of the sale or use of the Products. CLARION shall
notify XXXXXX in writing of any such infringement or alleged infringement within
a reasonable period of time after receipt of notice concerning same. XXXXXX
shall have the option at any time to undertake the sole and complete defense of
any claim of infringement; provided, however, that CLARION shall be kept
completely informed concerning any such claim and shall have the right, at its
sole option and expense, to participate in the defense of such claim. XXXXXX
may, at its option and expense, either (i) procure for CLARION the right to
continue using the Products, (ii) modify the Products so as to render them
non-infringing, or (iii) accept the return of the Products and refund the
purchase price.
.2 Exclusions from Section 11.1. Except where XXXXXX contributes to or
induces infringement, ANDREA's obligations under the provisions of Section 11.1
above shall not apply to any claims, allegations, suits, actions or proceedings
resulting solely from: (i) the Specifications provided by CLARION; (ii) any
improvements, updates, modifications or other changes to Products after delivery
to CLARION that are not made or approved by XXXXXX; (iii) improper use of the
Products; or (iv) end-user error; (v) where use of the Products is incident to
an infringement not resulting from the Products. CLARION agrees to pay all
damages or costs awarded, including reasonable attorneys' fees and settlements
with respect to any suit, judgment, proceeding or action in which XXXXXX is
relieved of its obligations pursuant to this Section 11.2.
.3 CLARION's Indemnification. CLARION agrees to indemnify and hold
XXXXXX and its affiliates harmless from and against all liabilities, damages and
costs arising out of or related to any claim of infringement or alleged
infringement of any patent, copyright, trade secret or other proprietary right
of any third party by reason of the sale or use of the AutoPC. XXXXXX shall
notify CLARION in writing of any such infringement or alleged infringement
within a reasonable period of time after receipt of notice concerning same.
CLARION shall have the option at any time to undertake the sole and complete
defense of any claim of infringement; provided, however, that XXXXXX shall be
kept completely informed concerning any such claim and shall have the right, at
its sole option and expense, to participate in the defense of such claim.
12. CONFIDENTIALITY
.1 Each party agrees to take all reasonable steps to prevent any of
the other party's proprietary and confidential information which it receives
pursuant to this Agreement in written form, or which it receives in another form
and thereafter in written form or summarized or described in written form, from
being disclosed to third parties, and each party agrees not to use such
information, directly or indirectly, for any purpose other than in connection
with this Agreement. All information received under this Agreement will be
deemed to be confidential unless specifically designated as nonconfidential.
Such confidentiality and non-use obligations shall not apply with respect to any
information which:
(a) is or becomes public knowledge through no wrongful act of
the receiving party;
(b) is already known to the receiving party through no wrongful
act of the receiving party;
(c) is independently developed by the receiving party;
(d) is rightfully obtained by the receiving party from any third
party without similar restriction and without breach of any
obligation owed to the disclosing party;
(e) is authorized for disclosure by the disclosing party; or
(f) is disclosed pursuant to a lawful requirement or request of
a governmental agency; provided that the disclosing party
has been given reasonably prior written notice and
opportunity to limit such disclosure or have such disclosure
accorded confidential treatment.
.2 Return of Confidential Information. Upon the request of a party,
the other party will return any of the requesting party's Confidential
Information that is in tangible form and any physical manifestations of such
Confidential Information, or will certify destruction of the same.
.3 Employees. The receiving party shall take all reasonable steps
necessary to ensure that its Employees are bound by restrictions regarding the
use and disclosure of the disclosing party's Confidential Information similar to
those contained herein.
.4 Injunctive Relief. Each party understands, acknowledges and agrees
that Confidential Information is of great competitive as well as monetary value
and that, therefore, without waiving any other rights or remedies, each party
shall have the right to bring an action to enjoin any unauthorized disclosure or
use of its own Confidential Information by the other party, it being agreed that
a suit for monetary damages alone would be an inadequate remedy. This section
shall survive termination of this Agreement for a period of [Confidential
Treatment Requested].
.5 In the event of any inconsistency between the terms of this section
and that certain Non-Disclosure Agreement by and between the parties hereto,
effective as of February 24, 1998 ("Non-Disclosure Agreement"), the terms of the
Non-Disclosure Agreement shall be controlling.
13. TERM AND TERMINATION
.1 Term. This Agreement shall have an initial term of one (1) year
from the date hereof and shall thereafter be automatically renewed for
successive one (1) year terms unless notice of termination is given at least
[Confidential Treatment Requested] prior to the termination date of the initial
term or any renewal term, or unless earlier terminated under Section 13.2 or
Section 13.3.
.2 Termination for Default. In the event that either of the parties
defaults in the performance of any of the terms, conditions, obligations,
undertakings, covenants, or liabilities set forth in this Agreement, the other
party shall give the defaulting party notice of such default. In the event the
defaulting party has not remedied the default within [Confidential Treatment
Requested] following notice thereof or, in the case where the defaulting party
has in good faith begun and is continuing efforts to cure such breach within
such [Confidential Treatment Requested] period, [Confidential Treatment
Requested] following such notice thereof, the party giving notice may
immediately terminate this Agreement by providing the defaulting party with
written notice of termination.
.3 Automatic Termination. This Agreement shall terminate immediately
upon written notice by CLARION in the event that XXXXXX ceases to carry on its
business, XXXXXX becomes the subject of any proceedings under state, federal or
other law for the relief of debtors, XXXXXX otherwise becomes insolvent or
bankrupt, XXXXXX makes an assignment for the benefit of creditors, or upon the
appointment of a receiver for XXXXXX or the reorganization of XXXXXX for the
benefit of creditors. This Agreement shall terminate immediately upon written
notice by XXXXXX in the event that CLARION ceases to carry on its business,
CLARION becomes the subject of any proceedings under state, federal or other law
for the relief of debtors, CLARION otherwise becomes insolvent or bankrupt,
CLARION makes an assignment for the benefit of creditors, or upon the
appointment of a receiver for CLARION or the reorganization of CLARION for the
benefit of creditors.
.4 Effect of Termination. The termination of this Agreement shall not
relieve either party from its obligations which have accrued pursuant to the
provisions of this Agreement or release either party from any obligations which
have been incurred as a result of operations conducted under this Agreement. In
any event, the rights and obligations of Articles [Confidential Treatment
Requested] and Sections [Confidential Treatment Requested] shall survive the
expiration or termination of this Agreement.
14. COOPERATION
.1 The parties shall cooperate with each other to their mutual benefit
as follows:
(a) Web Site Links. Each of CLARION and XXXXXX, at their own
expense, will incorporate in its own web site a hyperlink to the
other's web site for the purpose of promoting AutoPC Products,
AutoArray Products and AutoArray SE Products. In furtherance hereof,
each party may use the other party's logo(s) and/or logo link(s)
identified in Schedule 14.1 hereto, provided such use is in compliance
with such other's party's logo guidelines set forth in Schedule 14.1
or any other replacement guidelines that such other party may provide
to the first party from time to time during the Term of this Agreement
and provided further that each party is afforded a reasonable prior
opportunity to review and approve the precise intended manner of any
such use. The CLARION logo link(s) shall link back directly to a
CLARION URL provided to XXXXXX by CLARION. The XXXXXX logo link(s)
shall link back directly to a XXXXXX URL provided to CLARION by
XXXXXX.
(b) Joint Promotion. CLARION and XXXXXX will promote, at their
own expense, their joint relationship contemplated hereby and the
complementarity between the AutoPC Products and the AutoArray Products
and AutoSe products through, by way of example only, press releases,
trade shows agreed upon by the parties, and in relevant collateral
material. Each party shall provide the other party with reasonably
prior opportunity to review and approve such press releases, trade
show material and collateral material in furtherance of such
promotional efforts.
(c) Customer Names, Demographics and related Customer Database
Information. CLARION agrees that it will share with XXXXXX any listing
in its possession of registered customers and end users to which
CLARION or its agents sell the Products purchased and sold hereunder.
Without requiring CLARION to alter the manner in which it collects
information from its customers and end users and to the extent that
such additional information is obtained by CLARION and it is
commercially reasonable to do so, CLARION shall include in such
listing of registered customers and end users, demographics and
related database information obtained and/or maintained by CLARION in
respect of such registered customers and end users.
15. MISCELLANEOUS
.1 Relationship of Parties. This Agreement does not create the
relationship of principal and agent between XXXXXX and CLARION nor shall it be
construed as creating any form of legal arrangement which would impose liability
upon one party for the act or omission of the other party.
.2 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or mailed by
registered or certified mail, return receipt requested, or delivered by
overnight air courier guaranteeing next day delivery, to the following
addresses:
If to XXXXXX:
Xxxxxx Electronics Corporation
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
One copy marked "Attention:
[Confidential Treatment Requested];
and a second copy marked
"Attention: [Confidential Treatment Requested].
If to CLARION:
Clarion Corporation Of America
000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
One copy marked "Attention:
[Confidential Treatment Requested];
Either party may change its address upon notice given to the other party in the
foregoing manner. If mailed, notices shall be effective three (3) days after
mailing and if delivered by air courier, notices shall be effective on the day
after it is sent by air courier.
.3 Severability. If any provision of this Agreement shall be
determined by a court of competent jurisdiction to be invalid, illegal, or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
.4 Entire Agreement. With the exception of that certain Non-Disclosure
Agreement, this Agreement (including any schedules attached hereto) contains the
entire agreement of the parties with respect to the Products to be furnished
hereunder (except for any additional terms or conditions which may be contained
in any Purchase Order which may be issued by CLARION pursuant to this Agreement
and which are agreed to in writing by XXXXXX). Any modification or amendment of
any term or provision of this Agreement shall not be valid or binding unless the
same is in writing and signed by each party hereto.
.5 Assignment. Neither party shall assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party, which consent may be withheld at the other party's sole and absolute
discretion; provided, however, that CLARION may assign its rights and
obligations hereunder to any of its affiliates without the need for any consent
by XXXXXX, and XXXXXX may assign its rights and obligations hereunder to any of
its affiliates without the need for any consent by CLARION. This Agreement shall
be binding upon and shall inure to the benefit of the legal successors and
assigns of the parties hereto.
.6 Governing Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, including the
provisions of the Uniform Commercial Code as adopted in the State of California,
and not the Convention for the International Sale of Goods. The parties agree
that any litigation relating directly or indirectly to this Agreement must be
brought before a court of competent jurisdiction within the State of California.
.7 Waivers. No waiver of any of the terms or conditions of this
Agreement by either party shall be valid or binding unless the same is in
writing and signed by an authorized officer of the waiving party. A waiver by
either party of a breach of any of the provisions of this agreement shall not be
construed as a waiver of any further breach of the same provision or of any
other provision of this Agreement.
.8 Attorneys' Fees. In the event that any action at law or in equity
is brought to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to a reasonable attorneys' fee which may be
set by the Court in the same action or in a separate action brought for that
purpose, in addition to any other relief to which the prevailing party may be
entitled.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
CLARION CORPORATION OF AMERICA
By:_[Confidential Treatment Requested]____
Title:__[Confidential Treatment Requested]___
XXXXXX ELECTRONICS CORPORATION
By:__[Confidential Treatment Requested]____
Title:___[Confidential Treatment Requested]___
SCHEDULE 1.5
PRODUCTS
The Xxxxxx AutoArray(TM) microphone, together with related documentation
and materials ("the AUTOARRAY") - The AutoArray is a far field microphone
technology designed for use with automobile PCs, among other things.
The Xxxxxx AutoSE microphone, together with related documentation and
materials ("the AUTOSE") - The AutoSE is a far field microphone technology
designed for use with automobile PCs, among other things.
SCHEDULE 1.7
SPECIFICATIONS - AUTOARRAY:
[Confidential Treatment Requested]
SPECIFICATIONS - AUTOSE:
[Confidential Treatment Requested]
SCHEDULE 4.1
PRICES:
PRODUCT VOLUME PRICE PER UNIT LEADTIME
---------------------- -------------------- ------------------ ----------------
AutoArray [Confidential Treatment Requested]
AutoSE [Confidential Treatment Requested]
SCHEDULE 1.6
PRODUCT WARRANTY:
(See attached Consumer Guarantee)
SCHEDULE 3.1
FORM OF PURCHASE ORDER:
The form of Purchase Order shall include the following items: 1) the
Purchase Order number, 2) the Purchase Order date, 3) the Product description,
4) the quantity and unit price, 5) the extended price of the Purchase Order, 6)
the "ship to" address, 7) the "xxxx to" address, 8) the anticipated Delivery
dates(s), and 9) the appropriate contact person.
PURCHASE ORDER Y2K COMPLIANCE STATEMENT
In accepting this Purchase Order you are certifying that all Product sold
to us are Y2K compliant. You are also agreeing to replace or upgrade at no cost
or accept return of any Product that is determined to be non-compliant. The
following is a definition of Year 2000 compliance:
Handles date information before, during, and after
midnight, December 31, 1999, including but not
limited to accepting date input; providing date
output; and performing calculations and comparisons
on dates or portions of dates.
Functions accurately and without interruption before,
during, and after January 1, 2000, without any change
in operations associated with the advent of the new
century.
Responds to two-digit year date input in a way that
resolves the ambiguity as to the century in a
disclosed, defined, and predetermined manner.
Interfacing software must make the same century
assumptions when processing two-digit years.
Processes 2000 as a leap year and handles date fields
containing non-date information and correctly handles
a date in a non-date field.
Correctly processes any date with a year specified
"99" and "00", regardless of other subjective
meanings attached to these values.
CONSUMER GUARANTEE Dear Customer:
Thank you for buying this product from Xxxxxx
XXXXXX PURCHASER ________________________________
ELECTRONICS CORPORATION
MODEL NO. ________________________________
A LIST OF AUTHORIZED SERVICE PRODUCT NO. ________________________________
PROVIDERS IS AVAILABLE FROM:
DATE OF PURCHASE ____________________________
Xxxxxx Electronics Corporation
00-00 00xx Xxxx PURCHASED FROM ______________________________
Xxxx Xxxxxx Xxxx, XX 00000
ADDRESS ________________________________
STATEMENT OF LIMITED WARRANTY
The warranties provided by Xxxxxx Electronics Corporation in this Statement
of Limited Warranty apply only to products you originally purchase for your use,
and not for resale, from Xxxxxx Electronics or an Xxxxxx Electronics authorized
reseller. The term "product" means an Xxxxxx Electronics Corporation product,
its features, conversions, upgrades, elements, or accessories, or any
combination of them. Products are subject to these terms only if purchased in
the United States or Puerto Rico, or Canada, and located in the country of
purchase. If you have any questions, contact Xxxxxx Electronics Corporation or
your reseller.
Les conditions de la garantie qui s'appliquent dans le pays ou le produit a
ete achete sont disponibles aupres d'Xxxxxx Electronics ou votre detaillant.
Die Garantiebedingungen, die in dem Land gelten, in welchem das Gerat
gekauft wird. Sind von Xxxxxx Electronics oder lhrem Handler erhaltlich.
Le condizioni di garanzia in vigore nel paese ove e stato acquistato il
prodotto sono disposibili presso l'Xxxxxx Electronics o il rivenditore.
Podra obtener los terminos y las condiciones sobre las garantia aplicable
en el pais de compara de Xxxxxx Electronics o de su concessionario local.
IN THE EVENT THAT GUARANTEE SERVICE IS REQUIRED FOR THE XXXXXX ELECTRONICS
PRODUCT COVERED BY THIS GUARANTEE, PLEASE RETURN IT TO THE RETAILER AUTHORIZED
SERVICE STATION.
YOUR GUARANTEE
By this Consumer Guarantee, Xxxxxx Electronics Corporation guarantees this
product to be free of defects in materials and workmanship for a period of one
(1) year (the "Guarantee Period") from and after the time of its original
purchase or the time it was taken on hire purchase terms by the consumer from
the retailer.
Subject to the conditions explained below, if during the Guarantee Period
the product proves to be defective due to improper materials or workmanship,
Xxxxxx Electronics' Retailer Authorized Service Stations or Authorized Servicing
Dealers will without charge for labor or parts repair or, at the discretion of
the distributor, replace this product or its defective parts. To contact an
Xxxxxx Electronics customer service representative from 8:00 a.m. to 8:00 p.m.
EST, call (000) 000-0000 or your local Xxxxxx Electronics reseller.
CONDITIONS
1. The guarantee will be honored only if this Consumer Guarantee is
presented together with the original invoice/cash ticket issued to the
consumer by the retailer and if this Consumer Guarantee Card states the
following information: (a) the purchaser's name, (b) the retailer's name
and address, (c) the model name and product number of the purchased
product, and (d) the date or purchase of the product. If this information
has been removed or changed after the original purchase of the product by
the consumer from the retailer, Xxxxxx Electronics reserves the right to
refuse guarantee service.
2. In the event that this product needs to be adapted, change, or adjusted
in order to conform to the national or local technical or safety standards
in force in any country or locality other than the one for which the
product was originally designed and manufactured, any such adaptation,
change, or adjustment shall not be considered to be a defect in materials
or workmanship for purposes of this Consumer Guarantee. No reimbursements
shall be made under this Consumer Guarantee for the following: (a) any
adaptation, changes, or adjustments to the product, or attempts to make the
same, whether properly made or not, in order to conform to such standards,
(b) any adaptation, changes, or adjustments to upgrade the product from its
normal purpose as described in the Instruction Manual, or (c) any damage
resulting from any adaptations, changes, or adjustments to the product or
attempts to make the same.
3. The Consumer Guarantee shall not cover any of the following:
(a) periodic check-ups, maintenance and repair or replacement of
parts due to normal wear and tear;
(b) home service transport costs and other costs and risks of transport
relating directly or indirectly to this Consumer Guarantee; and
(c) damage to this product resulting from:
(i) abuse and misuse, including, without limitation, (a)
the failure to use this product for its normal
purposes or in accordance with Xxxxxx Electronics'
instructions on the proper use and maintenance of
this product and (b) the installation or the use of
this product in a manner inconsistent with the
technical or safety standards in force in the
country where the product is used;
(ii) repairs done by non-Authorized Service Stations; and
(iii) accidents, acts of God, or any cause beyond the
control of Xxxxxx Electronics, including, without
limitation, electrical storms, water, fire, public
disturbances, and improper ventilation.
4. This Consumer Guarantee does not affect the consumer's statutory rights
under applicable national legislation in force, nor the consumer's rights
against the retailer arising from any sales/purchase contracts between the
retailer and the consumer, in the absence of applicable national
legislation, this Consumer Guarantee will be the consumer's sole and
exclusive remedy, and neither Xxxxxx Electronics Corporation nor any of its
subsidiaries or distributors shall be liable for any incidental or
consequential damages for breach of any expressed or implied guarantee of
this product.
