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EXHIBIT 10.13
SUPPLY AGREEMENT
This SUPPLY AGREEMENT is entered into as of the 28th day of January, 1999,
by and between MINOLTA CO., LTD., a Japanese corporation having its principal
place of business at 3-13,2-Chrome, Xxxxxx-Xxxxx, Xxxx-xx, Xxxxx 000-0000, XXXXX
(hereinafter "MINOLTA"), and T/R SYSTEMS, INC., a Georgia, U.S.A. corporation
having its principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxx, X.X.X. 00000 (hereinafter "T/R").
RECITALS:
1 T/R has designed and developed, and currently assembles, distributes
and sells, a proprietary commercial printing system known as the
MICROPRESS(R) PressDirector(TM) ClusterServer(TM), which includes
Micropress(R) Release 4.5.
2 T/R has proprietary skills, know-how, technology, inclusive of trade
secrets and other know-how, and patent rights applicable to the
product architecture, development, design, assembly, manufacturing,
connectivity, production and distribution of the MICROPRESS(R)
commercial printing system.
3 As of March 31, 1998, the parties entered into a Development
Agreement (the "Development Agreement") whereby T/R agreed to
undertake and fulfill, subject to the terms and conditions thereof,
the "Development" as defined therein, and the parties agreed
to enter into mutually agreeable terms and conditions for the
purchase and related licensing of the "Controller" (as defined in the
Development Agreement) and associated products.
4 The parties intend this Agreement to constitute the agreement
contemplated by the terms of the Development Agreement to provide such
purchase and licensing so as to permit MINOLTA to complete the
assembly of MICROPRESS(R) commercial printing systems, with such
products to be distributed and sold by MINOLTA and either marked or
identified with trademarks owned, possessed or controlled by MINOLTA,
marked or identified with trademarks of a party other than MINOLTA or
for "private label" distribution. This method of distribution shall
involve the assembly of Systems by MINOLTA.
5 To accommodate the foregoing agreements, and to effect certain other
agreements and undertakings between T/R and MINOLTA, such parties
have entered into this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions.
1.1 "Confidential Information" shall mean only the following information
including, but not limited to, technical or non-technical data, Know-how,
trade secrets, skills and processes, from which MINOLTA or T/R derives
economic value by such information not being generally known to, and not
being readily ascertainable by proper means, by third parties, disclosed in
any of the following method 1)~3):
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T/R - MINOLTA Supply Agreement Thursday, January 21, 1999
1) disclosure in written form which is clearly marked "Confidential" or
otherwise marked as such; or
2) disclosure through tangible object with a notice which is clearly
marked "Confidential" or otherwise marked as such; or
3) oral disclosure; provided, however, the disclosing party shall identify
so at the time of disclosure and send to the receiving party, within
thirty (30) days after such disclosure, documents clearly marked
"Confidential" or otherwise marked as such and referring to the date
and place of disclosure and describing such information to be deemed as
Confidential Information.
Only the information which meets all conditions provided in this Section
shall be deemed as Confidential Information and other information shall not
be deemed as Confidential Information in any case. Moreover, the following
information shall not be deemed as Confidential Information and the
Receiving Party shall have no obligation with respect to such information:
(a) information which becomes available to the public or to industry
without fault of the receiving party; or
(b) information which is already available to the public or to
industry at the time of disclosure; or
(c) information which is already in the possession of the receiving
party at the time of disclosure; or
(d) information which is subsequently rightfully received by the
receiving party from a third party without notice of restriction
on further disclosure; or
(e) information which is demonstrated to have been developed by an
employee of the receiving party independently of and without
reference to Confidential Information; or
(f) information which is disclosed to the third party by the
disclosing party without similar restriction on such third party.
1.2 "Customer" means any Person that acquires Systems from MINOLTA for its own
use or for sale, lease or other disposition.
1.3 "Deliverables" has the meaning set forth in Section 2 hereof.
1.4 "End User" means a Person that acquires a System directly from MINOLTA or
indirectly from a Customer of MINOLTA, and uses the System for any purpose.
1.5 "Know-how" means knowledge, information, inventions (other than those
embodied in the patent rights), trade secrets and systems used in the
design, development, manufacture, assembly, servicing or testing of the
MICROPRESS(R) commercial printing system.
1.6 "License" means the license granted by T/R to MINOLTA pursuant to this
Agreement.
1.7 "Licensed Intellectual Property Rights" means the Know-how, patent rights
and similar intellectual property owned by T/R and used in the design,
development, manufacture, assembly, servicing or testing of the System or
any portion thereof.
1.8 "MINOLTA Orders" has the meaning set forth in Section 5 hereof.
1.9 "Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization, government, governmental agency or any
other entity.
1.10 "Subsidiary" means a corporation or other entity of which more than 50% of
the shares of the outstanding stock (representing the right to vote for the
election of directors or other managing authority) are now or hereafter
owned or controlled, directly or indirectly, by a party hereto, but such
corporation or other entity shall be deemed to be a Subsidiary only so long
as such ownership or control exists.
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1.11 "System" means the MicroPress(R) commercial printing systems to be
assembled by or for MINOLTA and incorporating the Deliverables, and known
generally as the "Minolta 62 ppm Monochrome Copier/Printer OEM
Micropress(R) Version", "Minolta Color Copier/Printer Micropress(R)
Version," or as used herein as context may require, any portion thereof.
1.12 "Technical Assistance" means the technical assistance to be provided by T/R
to MINOLTA as provided in Section 8 hereof.
1.13 "Territory" shall mean the entire world.
2. Completion of Development. After completion of the "Development" (as
defined in the Development Agreement), and the completion of acceptance
testing (as described in the Development Agreement as the "Acceptance") in
respect of the Controller (as defined in the Development Agreement), the
parties shall commence, pursuant to the terms and conditions of this
Agreement, the purchase and sale (and related licensing) of equipment and
software comprising the Controller and related software and other related
technology and communications hardware, more particularly described below
and specified in Attachment C or D (and which items are defined herein as
the "Deliverables"):
(a) The MICROPRESS(R) PressDirector ClusterServers, constituting
(and including) the Controller developed pursuant to the
Development Agreement;
(b) Technology and Software Packages, which shall include the
software in executable code and other technology, employing the
Licensed Intellectual Property Rights, and providing the
software and related technology principally required for
operation of the Systems to be distributed by MINOLTA pursuant to
this Agreement; and
(c) Printlinks communication hardware used in and constituting a part
of the Systems consisting of boards including print adaptors and
host adaptors.
2.2 Engineering changes shall be made in accordance with the procedure
specified in Attachment E attached hereto.
3. Purchase and Sale. During the term of this Agreement, and pursuant to the
terms and conditions hereof, T/R agrees to sell (and license as indicated
in Section 4 hereof), and MINOLTA agrees to purchase (and obtain a license
as provided for in Section 4 hereof in respect of) the Deliverables, in the
quantities and at the prices, and on the other terms provided for herein.
MINOLTA shall have the exclusive sales right in respect of those
Deliverables indicated as "Exclusive" on Attachment C, however nothing
contained herein will provide MINOLTA with any exclusive rights to similar
devices which do not include any proprietary and/or intellectual property
rights resulting from Development (as defined in the Development
Agreement). Coincident with the execution and delivery of this Agreement,
MINOLTA shall provide to T/R its first purchase order for the purchase of
Deliverables, in conformance with the terms of Section 5 hereof.
4. License.
4.1 Grant. Subject to the terms and conditions hereof, T/R hereby grants to
MINOLTA and MINOLTA hereby accepts from T/R a license entitling MINOLTA
during the term of this Agreement to use the Licensed Intellectual Property
Rights to complete the assembly of the Systems and to distribute, sell or
lease the Systems to Customers for use by End Users located in the
Territory.
4.2 No Sublicenses. This Agreement does not grant, license or permit (either
expressly or by implication) MINOLTA to transfer, assign, sell, give,
license, sub-license, or in any way permit the use of the Licensed
Intellectual Property Rights, by or to any Person, other than (i) any of
its Subsidiaries for the sole purpose of assembling the Systems, or any
components or subassemblies thereof; or (ii) any other
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T/R - MINOLTA Supply Agreement Thursday, January 21, 1999
third party under MINOLTA's supervision or by parties deemed qualified by
MINOLTA and under MINOLTA's authorization for the sole purpose of
assembling the Systems or any components or subassemblies thereof, for
supply only to MINOLTA. If MINOLTA becomes aware, or gains reasonable
suspicion, of the unauthorized use or exercise of the Licensed Intellectual
Property Rights by any Person, then MINOLTA shall forthwith notify T/R in
writing and cooperate with T/R, and at T/R's discretion, to xxxxx or
terminate such unauthorized use or actions.
4.3 No Other Licenses. No license or right is granted under this Agreement by
T/R to MINOLTA by implication, estoppel or otherwise, except as expressly
set forth in this Agreement and MINOLTA may not use the corporate names,
trademarks, trade names, service marks, or logos of T/R without the prior
written consent of T/R.
4.4 Labeling. MINOLTA shall apply to the Systems assembled for sale by or for
MINOLTA to Customers a statement reasonably located and sized, identifying
the fact that the Systems are assembled under license from T/R and, as
applicable, are subject to patents or patents pending, and which shall
identify by number any issued patents which are part of the Patent Rights.
Such statement, and its proposed location and size, shall be submitted to
T/R by MINOLTA in advance of its use for pre-approval by T/R, which
approval may not be unreasonably withheld.
4.5 Limitation on Use. MINOLTA shall not use the Licensed Intellectual Property
Rights or any other T/R technology, for any purpose or purposes other than
those expressly permitted under the License.
5. Orders.
5.1 By the twentieth (20th) of each month, MINOLTA shall submit written
purchase orders (hereinafter "Order") to T/R in respect of the Deliverables
to be delivered to MINOLTA in the second (2nd) month following the ordering
month. All orders shall specify the quantities and descriptions of the
Deliverables, and requested delivery dates and shipping instructions. On
submitting Order, MINOLTA shall provide T/R with a forecast ("Forecast") of
quantities of Deliverables to be delivered to MINOLTA in each of the next
succeeding three (3) months. The quantity of Deliverables in Forecast for
delivery of; (i) the first (1st) month thereof may be increased or
decreased by not more than * percent (*%) when rolling into the Order,
(ii) the second (2nd) month thereof may be increased or decreased by not
more than * percent (*%) when rolling into next Forecast. The quantity of
Deliverables in Forecast for delivery of the third (3rd) month thereof is
non-binding.
5.2 Subject to supply therefore, and conformance of the purchase orders with
forms approved therefor from time to time by T/R, T/R shall accept any such
purchase order which is not in contravention of the terms of this
Agreement. Unless T/R gives a notice of any objection to the Order within
ten (10) days after receipt thereof, such Order shall be deemed to have
been accepted by T/R.
5.3 T/R shall make available to MINOLTA the spare parts or equivalent
replacements during the term of this Agreement and for a minimum of seven
years from the earlier of the date of termination of this Agreement, the
date of discontinuance of the item or the Deliverables or from delivery of
the last unit of equipment hereunder. The order procedures for "Spare
Parts" are subject to the Spare Parts ordering policies contained in
Attachment A.
5.4 The terms and conditions of this Agreement shall apply to all MINOLTA's
Orders submitted to T/R and supersede any different or additional terms
contained on MINOLTA's Orders. MINOLTA's Orders and T/R's acceptance shall
constitute an individual contract between MINOLTA and T/R under this
Agreement.
6. Shipment and Delivery. The Deliverables shall include, as appropriate,
certain documentation related thereto prepared by or for T/R. The
Deliverables shall be delivered by the twentieth (20th) of each month
according to Order and on the following conditions.
* Confidential information has been omitted and filed separately with the
Commission.
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(a) All Shipments of the Deliverables shall be made by Ex Works T/R's
facility at Norcross in Georgia, U.S., according to Incoterms 1990
conditions, if such Deliverables are shipped to the destinations in
U.S. as specified in the respective Order.
(b) All Shipments of the Deliverables shall be made by F.C.A. nearest
seaport or airport from Norcross, Georgia, U.S. according to Incoterms
1990 conditions, if such Deliverables are shipped to the destinations
in the other countries except for U.S. as specified in the respective
Order.
Title of the Deliverables shall pass from T/R to MINOLTA at delivery point set
forth in above (a) and (b), with respect to hardware, media and other items
included within the Deliverables which do not constitute nor comprise Licensed
Intellectual Property Rights.
7. Price.
7.1 Provided MINOLTA complies with all the terms and conditions of this
Agreement, during the initial * (*)-*term of this Agreement T/R
agrees to invoice in respect of the sums due for Deliverables at the prices
and terms of the Price List contained on Attachment B. No later than one
hundred twenty (120) days prior to the commencement of any one (1)-year
renewal term, MINOLTA and T/R may reconsider the prices and terms to be
applicable during such succeeding renewal term by mutual agreement.
7.2 Price to MINOLTA does not include sales, value added or similar taxes of
any nature. MINOLTA shall pay applicable taxes based on MINOLTA's net price
as invoiced by T/R or supply appropriate tax exemption certificates in a
form satisfactory to T/R.
7.3 T/R and MINOLTA will meet quarterly at mutually agreed times and locations
to review Attachment B and business activity in the territory, marketing
plans, product plans and pricing strategies.
8. Technical Assistance.
8.1 To effectuate the purposes of this Agreement, upon the reasonable request
by MINOLTA and subject to the terms and conditions of the License, T/R,
employing the Licensed Intellectual Property Rights, shall consult with and
provide technical assistance to MINOLTA with respect to (i) the design and
operation of the Systems, inclusive of the selection and design of print
engine therefor; (ii) MINOLTA's assembling of the Systems for mass
production; (iii) MINOLTA's initiation of assembling for commercial
production of the Systems; (iv) MINOLTA's outsourcing plans and operations;
(v) MINOLTA's current and future device connectivity to the System; and
(vi) matters related to the above (hereinafter "Technical Assistance"). In
addition to Technical Assistance, T/R shall provide standard training for
MINOLTA personnel, upon the reasonable request of MINOLTA. Upon receiving
MINOLTA's request, T/R shall provide MINOLTA with written estimates of fees
(including T/R's personnel's travel and living expense) for the requested
Technical Assistance within three (3) days. T/R shall launch on Technical
Assistance, after obtaining MINOLTA's written requests based on above
estimates for it. Each of T/R and MINOLTA will appoint a personnel in
charge of technical liaison to interact and support the technical interface
between T/R and MINOLTA.
8.2 T/R agrees to provide MINOLTA (including MINOLTA's Subsidiary) with sales
and service training at T/R Systems training centers in the U.S. and Europe
at no charge on a seats available basis for regularly scheduled training
classes. T/R and MINOLTA shall negotiate and decide the other terms and
conditions for such sales and service training.
9. Payments.
9.1 Payment of Consideration. As for the Deliverables delivered to MINOLTA from
T/R, T/R shall issue invoices for such Deliverables to MINOLTA promptly.
After receiving such invoices, MINOLTA
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* Confidential information has been omitted and filed separately with the
Commission.
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T/R MINOLTA Supply Agreement Thursday, January 21, 1999
shall make payment for such Deliverables by the * of the invoice date.
Unless otherwise agreed by T/R in writing, all payments by MINOLTA
shall be remitted in immediately available U.S. Dollars by wire
transfer per T/R's instructions, and confirmation of each payment
shall be made by MINOLTA to T/R by facsimile or telegraphic means to
T/R's principal place of business. A late payment charge of one and
one-half percent (1.5%) per month shall be charged upon unpaid
balances due for more than thirty (30) days. All pricing and fees
under this Agreement are exclusive of taxes. Except for taxes based on
T/R's net income, MINOLTA shall pay any national, federal, state,
county, local or other governmental taxes, fees or duties now or
hereafter imposed on the licensing, export, use or possession of the
Licensed Intellectual Property Rights and the Deliverables or any
other transaction contemplated by this Agreement, as well as any
penalties or interest thereon. Notwithstanding anything in this
Agreement to the contrary, if, under any applicable law, MINOLTA is
required to withhold tax or any other amount from any payment to T/R,
the amount due to T/R shall be increased to the amount T/R would have
received if no withholding had been required.
9.2. Consulting, Training Compensation. As compensation for the consulting
and training required to be provided as Technical Assistance pursuant
to Section 8 hereof, MINOLTA shall compensate T/R at T/R's standard
rates as in effect from time to time for consulting, and at T/R's
standard rates as in effect from time to time for training. In
addition, MINOLTA shall reimburse (or advance if requested) T/R's
travel and living expenses incurred in connection with such consulting
and training. T/R's standard per diem rates are subject to change from
time to time by T/R. T/R's per diem rates as of the date of this
Agreement are as follows: Training $1,000, Engineer $1,500, Senior
Engineer $1,750, Managing Engineer $2,000 and Chief Technology Officer
$2,500.
10. Minimum Purchases.
10.1 MINOLTA's minimum amounts of purchases shall be as follows.
(a) The first one year (from January 1, 1999 to December 31, 1999
(both inclusive)): * U.S. dollar (*U.S.$) of
Deliverables designated by Attachment B.
(b) The second one year (from January 1, 2000 to December 31, 2000
(both inclusive)): * U.S. dollar (*U.S.$) of
Deliverables designated by Attachment B.
(c) The third one year (from January 1, 2001 to December 31, 2001
(both inclusive)): * U.S. dollar (*U.S.$) of
Deliverables designated by Attachment B.
In addition, MINOLTA shall make efforts to purchase * U.S. dollar
(*U.S.$) of Deliverables as yearly purchase for second and third
year.
10.2 MINOLTA may include the following payments paid to T/R in above
minimum amount.
(a) the Maintenance Charge and Major Release Fee as described in
Section 11
(b) purchase account of any hardware and/or software for MINOLTA'S
products Di520, CF911P, Di620P, CF910 or CF900 from T/R
10.3 As for any year, if the minimum purchase level is not met due to the
failure of T/R to deliver within such year Deliverables in accordance
with the delivery terms and conditions of this Agreement and of
accepted Orders, then MINOLTA'S minimum purchase responsibility for
such year as set forth herein above shall be reduced by the aggregate
purchase price of such Deliverables not timely delivered within such
year.
10.4 In order that MINOLTA may fulfill this Section 10, T/R shall liable
to keep high performance of System and to ensure it remains
competitive in the market of print on demand system by appropriate
version up of software in System.
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* Confidential information has been omitted and filed separately with the
Commission.
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T/R MINOLTA Supply Agreement Thursday, January 21, 1999
11. Maintenance. T/R will provide MINOLTA with software bug fixes, major
software releases and telephone support for a quarterly maintenance charge
(hereinafter "Maintenance Charge"), and the payment of $* per major
release (hereinafter "Major Release Fee"). The quarterly Maintenance Charge is
payable on the 15th day of January, April, July and October in respect of the
calendar quarter ending December 31, March 31, June 30 and September 30,
respectively, and shall equal * percent (*%) of the purchase price amounts
paid or payable in respect of Deliverables ordered during such calendar
quarter. Upon issuance of each major release by T/R, upon invoice therefor,
MINOLTA will pay T/R Major Release Fee. Provided, in case that T/R issues a
major release in the first one year of this Agreement, T/R shall provide such
major release to MINOLTA free of a Major Release Fee charge. T/R shall take all
customary commercial efforts to update its software to operate in conjunction
with industry-utilized operating systems, and to remain competitive in all
material respects as to principal functions and performance standards.
12. Ownership and Proprietary Rights.
12.1 Ownership. T/R represents that it has all rights in and to copyrights,
trade secrets, patent rights and other intellectual property rights
associated with the Licensed Intellectual Property Rights and the
Deliverables as are necessary to license the Licensed Intellectual Property
Rights and license and/or sell the Deliverables, as the case may be, under
and pursuant to this Agreement.
12.2 Proprietary Rights. MINOLTA and T/R acknowledges that the Confidential
Information constitute valuable trade secrets and confidential information
of each other. MINOLTA and T/R shall not use or disclose the other party's
Confidential Information, except as expressly permitted by this Agreement.
Ownership of all applicable copyrights, trade secrets, patents and other
intellectual property rights in the Licensed Intellectual Property Rights
and the Deliverables shall remain vested in T/R. Title to all Licensed
Intellectual Property Rights shall remain with T/R. MINOLTA shall not
remove T/R's copyright notices, restricted rights legends or any other
notices from the Deliverables and such notices shall appear on all tapes,
diskettes and other tangible media distributed by MINOLTA containing the
Licensed Intellectual Property Rights or constituting the Deliverables.
12.3 Unauthorized Use or Copying. Except as expressly permitted hereunder,
MINOLTA shall not copy, modify or reproduce the Deliverables in any way,
nor shall it permit third parties to do so. MINOLTA shall fully cooperate
with T/R in any action relating to enforcement of T/R's proprietary rights.
12.4 End User License. MINOLTA shall only distribute the Deliverables to
Customers for delivery to End Users. MINOLTA shall distribute the
Deliverables after obtaining the written assent of the Customer to cause
all End Users to agree, as to the software and other proprietary
technology included in the Deliverables, to the terms of a standard T/R
Software License, and a form of which shall be supplied to MINOLTA by T/R.
MINOLTA shall make no representations or warranties on behalf of T/R.
MINOLTA shall make no representations to Customers or End Users or other
third parties regarding the Deliverables except as set forth in the
applicable documentation therefor provided by T/R. MINOLTA will be
responsible for all conversions, translations and localizations necessary
for use of the Deliverables by End Users in the various countries included
within the Territory.
12.5 Third Party Software. To the extent the software included within the
Deliverables constitutes software or other technology rights owned by a
third party and licensed to T/R, such software, and its sublicense to
MINOLTA by T/R hereunder, is subject to all terms and conditions,
including where required, approval rights, of such third party license
agreements.
12.6 Security. The software included within the Deliverables will be protected
by a security mechanism known as a "dongle". MINOLTA shall distribute the
"dongle" supplied by T/R for the software for each System. MINOLTA will
ensure that such security mechanisms remain intact and that such software
remains secure from unauthorized copying, reverse engineering and reverse
compiling and unauthorized distribution.
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* Confidential information has been omitted and filed separately with the
Commission.
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T/R MINOLTA Supply Agreement Thursday, January 21, 1999
12.7 Indemnification. MINOLTA and T/R agree to indemnify and hold harmless the
other party from and against any claim, injury, loss or expense, including
attorneys' fees, arising out of (a) the failure of MINOLTA or T/R to comply
with the provision of Section 12, (b) any misrepresentations of MINOLTA in
connection with T/R or the Deliverables or (c) any other wrongful conduct
of MINOLTA or T/R or their agents.
13. Warranty.
13.1 Limited Warranty. T/R warrants that for a period of * (*) months after
delivering Deliverables to MINOLTA, equipment and media constituting the
Deliverables delivered from T/R will be of good quality and free from
defect in materials and/or workmanship, in all material respects, and will
comply with specifications listed in Attachment C or D. MINOLTA will not
intend to offer with warranty period for equipment and media constituting
the Deliverables with End User more than * (*) months. Upon written notice
from MINOLTA of defective media or equipment as to any Deliverable, T/R
shall promptly provide MINOLTA with replacement equipment or media. If
MINOLTA should discover epidemic failures (same defects occurring from same
cause) in at least * percent (*%) of Deliverables delivered within the *
(*) months warranty period or * (*) months thereafter, MINOLTA shall notify
T/R of occurrence of such failure. After receiving such notification by
T/R, T/R shall inspect such failure of Deliverables. As a result the
inspection, in case that both parties recognize that such failure is
epidemic failure, then in addition to remedies in the preceding Section 13.
hereof, T/R shall reimburse all the costs incurred by MINOLTA in rectifying
such epidemic failures in respect of Deliverables delivered to MINOLTA
within the prior * (*) months, including, but not limited to, the cost for
callback of such defective equipment or media from the market.
13.2 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE IN
SECTIONS 13.1, THE DELIVERABLES ARE PROVIDED "AS IS." T/R SPECIFICALLY
DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AS TO ANY TERMS OR SERVICES PROVIDED UNDER THIS
AGREEMENT.
13.3 Damage Limitations. IN NO EVENT SHALL T/R BE LIABLE FOR ANY LOSS OF PROFIT
OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF
ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (EXCLUDING T/R'S
LIABILITY SET FORTH IN SECTION 15 AND SECTION 16), INCLUDING, WITHOUT
LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE DELIVERABLES
OR, NON-DELIVERY, EVEN IF T/R HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL T/R'S LIABILITY FOR ANY CLAIM ARISING OUT OF
THIS AGREMENT (EXCLUDING T/R'S LIABILITY SET FORTH IN SECTION 15 AND
SECTION 16) EXCEED THE AMOUNT PAID TO T/R BY MINOLTA DURING TWELVE (12)
MONTHS PRIOR TO THE DATE OF CLAIM MADE BY MINOLTA. NO CLAIM MAY BE BROUGHT
BY MINOLTA UNDER THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER ACCRUAL OF
SUCH DAMAGES.
14. Term and Termination.
14.1 Expiration. This Agreement shall commence on the date set forth above and
shall continue for an initial term of * (*) years. Thereafter, this
Agreement shall be automatically renewed for additional terms of one (1)
year unless either party serves written notice, at least ninety (90) days
prior to the expiration of the initial term or any renewal, of its
intention not to renew.
14.2 T/R Termination. This Agreement may be terminated by T/R under any of the
following conditions:
*Confidential information has been omitted and filed separately with the
Commission.
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T/R MINOLTA Supply Agreement Thursday, January 21, 1999
(a) if MINOLTA does not pay T/R within sixty (60) days from the due date.
14.3 Termination. This Agreement and/or individual contract thereunder may be
terminated by aggrieved party under any of the following conditions:
(a) if one of the parties shall be declared insolvent or bankrupt;
(b) if a petition is filed in any court and not dismissed in ninety (90)
days to declare one of the parties bankrupt or for a reorganization
under the Bankruptcy Law or any similar statute;
(c) if a trustee in Bankruptcy or a receiver or similar entity is
appointed for one of the parties;
(d) if MINOLTA or T/R commits a material breach of this Agreement which is
not cured by the breaching party within thirty (30) days after written
notice of such breach is given by not breaching party.
14.4 Duties Upon Termination. Upon termination, MINOLTA and T/R shall return
all Confidential Information (including all copies), that have been supplied by
the other party. The following provisions of this Agreement shall survive its
termination: Sections 9, 12, 13, 15, 16 and 17. In the event that MINOLTA has
any paid-up inventory of the Deliverables as of the date of termination under
Section 14.2 or 14.3, MINOLTA may continue to market and distribute its
inventories of the Deliverables, but MINOLTA shall have no right to order or
receive any additional copies of the Deliverables.
15. Indemnification.
15.1 Intellectual Property. T/R shall, at its expense, defend any claim
against MINOLTA that the Deliverables infringes a copyright, trade secret or
patent right of any third party. T/R shall pay any direct costs and damages
attributable to such claim, including, but not limited to damages finally
awarded by a court against MINOLTA on such claim. T/R shall have no liability
for any such claim as based on use of or anything other than an unaltered
release of the Deliverables available from T/R, or based on combination with
any other software, data or hardware, if such infringement would have been
avoided by the use of unaltered release of the Deliverables available from T/R.
15.2 Cooperation by MINOLTA. T/R shall have no obligations under Section 15.1
of this Agreement unless:
(a) T/R shall have been promptly notified of the suit or claim by MINOLTA
and furnished by MINOLTA with a copy of each communication, notice or
other action relating to said claim;
(b) T/R shall have the right to assume sole authority to conduct the trial
or settlement of such claim or any negotiations related thereto at
T/R's expense; and
(c) MINOLTA shall provide reasonable information and assistance requested
by T/R in connection with such claim or suit.
16. Product Liability
16.1 If any product liability accident occurs out of or in relation to
Deliverables or Systems, and there is a reasonable suspicion that such accident
is caused by defect in Deliverables or Systems due to T/R's responsibility;
then T/R shall cooperate to MINOLTA in the investigation of causes and
defending on such accident.
16.2 Should any claim or suit be made or filed for damages of product liability
accident in relation to Deliverables or Systems as a result of any defect in
Deliverables or Systems attributable to T/R's responsibility, T/R shall
undertake the sole and complete defense of any such claim or suit at its own
expense and responsibility, and indemnify MINOLTA against all such damages and
costs suffered or incurred by MINOLTA. T/R shall investigate and study the
possibility of recurrence of the product
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T/R MINOLTA Supply Agreement Thursday, January 21, 1999
liability accident due to the same cause and report the result of such
investigation to MINOLTA; and T/R shall take proper and reasonable
measures, at its own expenses and responsibility, to prevent the recurrence
if the recurrence is foreseen as a result of the investigation. In the
course of defense of claim or suit or measures of prevention of recurrence,
T/R shall pay attention not to discredit MINOLTA's name or trust, and shall
consult with MINOLTA in determining method of defense or preventive
measures, although such defense and preventive methods shall be finally
determined by T/R.
16.3 Notwithstanding the foregoing, T/R shall not be liable for any claim suit
of product liability which is based on defect or failure caused by; a) any
modifications to the Deliverables or Systems or b) documentation prepared
made by other party than T/R or c) specifications designated by MINOLTA or
d) use or combination of Deliverables or Systems with any hardware or
software which is not intended or designated by T/R.
17. General.
17.1 Force Majeure. T/R shall not be liable for any delay or failure in
performance under this Agreement resulting directly or indirectly from acts
of God, or any causes beyond its reasonable control.
17.2 Jurisdiction and Venue. (1) This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, U.S.A.,
without reference to its conflicts of laws provisions. (2) Any disputes,
controversies or differences which may arise between both parties, out of,
in relation to or in connection with this Agreement, or breach thereof,
shall be amicably and promptly settled upon consultation between both
parties. (3) In case that the amicable settlement is not reached within
thirty (30) days after commencing consultation as provided in the
proceeding subparagraph, the dispute controversy or difference shall be
settled by arbitration in country in which is located the principle office
of the respondent party, in accordance with the Commercial Rules of
Arbitration for the International Chamber of Commerce, without being
submitted to general court in such country. The award rendered by the
arbitrators shall be final and binding upon the parties hereto.
17.3 Entire Agreement. This Agreement, including the Schedules and Attachments
attached hereto, constitutes the entire agreement between the parties with
respect to this subject matter and supersedes all previous proposals, both
oral and written, negotiations, representations, writings and all other
communications between the parties. This Agreement may not be released,
discharged, or modified except by an instrument in writing signed by the
parties.
17.4 Independent Contractors. It is expressly agreed that MINOLTA and T/R are
acting hereunder as independent contractors. Under no circumstances shall
any of the employees of one party be deemed the employees of the other for
any purpose.
17.5 Notice. Any notice required to be given by either party to the other shall
be deemed given if in writing and actually delivered or if deposited in the
United States mail in registered or certified form with return receipt
requested, postage paid, addressed to the notified party at the address set
forth herein.
17.6 Assignment. This Agreement is not assignable by both parties without
obtaining consent of the other party. Provided that, either party may
assign this Agreement to any entity that acquires or otherwise succeeds to
all or substantially all the business or assets of the assigning party.
17.7 Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any part
or provision of this Agreement.
17.8 Waiver. No waiver by any party hereto of any breach of any provisions
hereof shall constitute a waiver of any other term of this Agreement unless
made in writing signed by such party.
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18. International Matters.
18.1 Export License. T/R shall be responsible for the procurement and renewing
of all export or import licenses required under United States or any
foreign law for the export or import of the Deliverables or the value added
products and shall pay all costs and other expenses in connection with such
procurement and renewal.
18.2 Export Assurance. Regardless of any disclosure made by MINOLTA to T/R of
any ultimate destination of a Deliverable or any System assembled using
same, MINOLTA shall not export or reexport directly or indirectly the
Deliverable or any System assembled using same, without first obtaining the
required written approval or export license, if any, to do so from the
United States Department of Commerce or any other agency of the U.S.
Government having jurisdiction over such transaction. MINOLTA hereby
assures T/R that it does not intend to nor will it knowingly, without the
prior written consent, if required, of the Office of Export Administration
of the U.S. Department of Commerce, transmit or ship the Deliverable or any
System assembled using same, directly or indirectly, to any country as to
which such export is made unlawful as provided in laws or by regulations
issued by the U.S. Department of Commerce, or other such regulations as may
be adopted from time to time. T/R shall obtain the list of above countries
from the Office of Export Administration of the U.S. Department of Commerce
and shall provide MINOLTA with such list from time to time.
18.3 Compliance with Local Laws. MINOLTA shall be exclusively responsible at its
own expense for compliance with all local laws relating to a Deliverable or
any System assembled using same, in the countries in which MINOLTA licenses
or markets same.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a
duly authorized representative as of the date set forth above.
T/R SYSTEMS, INC. MINOLTA CO., LTD.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxxxxx Xxx
---------------------------------- ------------------------------------
Xxxxxxxxxx Xxx
Title: President/CEO Title: Executive Director
Date: 1-28-99 Date: Feb. 19, 1999
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