Exhibit 10.27
DISTRIBUTION AGREEMENT
This agreement is made and entered into this 11th day of February, 2002 (the
"Effective Date") by and between T/R Systems, Inc., a corporation organized and
existing under the laws of Georgia, U.S.A., with its principal place of business
at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 (hereinafter referred to as "Seller")
and Canon U.S.A., Inc., a corporation organized and existing under the laws of
the State of New York, with its place of business at Xxx Xxxxx Xxxxx, Xxxx
Xxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Buyer").
RECITALS:
a. Seller has designed and developed, and currently assembles,
distributes and sells, a proprietary commercial printing
system known as the MICROPRESS(R).
b. Seller 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.
c. Buyer desires to: (i) distribute Systems incorporating Buyer
network printer/copier devices identified in Schedule 1
("Printers"), (ii) purchase certain equipment assembled by
Seller for incorporation into such Systems, and (iii) have the
right to sell or otherwise distribute such Systems (whether
connected to a Printer or distributed separately) in the
Territory under the trademarks and logos of Seller.
d. To accommodate the foregoing matters, and to affect certain
matters and undertakings between Seller and Buyer, such
parties have entered into this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
1.1 "Confidential Information" means information disclosed by
either party to the other during the term of this Agreement including, but not
limited to, technical or non-technical data, Know-how, trade secrets, skills and
processes, designs, drawings, documentation, software (regardless of form or
media), machinery, prototypes, methods, concepts, facilities, research,
development and business activities, whether obtained or disclosed orally or in
writing or through observation, but excluding any such information which (i) is
publicly available through no fault of the receiving party; (ii) is in the
receiving party's possession free of any obligation of confidence to the
disclosing party at the time it was communicated to the receiving party; (iii)
is received independently from a third party who is free to disclose such
information; (iv) is demonstrated to have been subsequently and independently
developed by the receiving party without the use of Confidential Information of
the disclosing party; (v) is disclosed after receiving written approval of
disclosing party; or (vi) is disclosed to a third party by the disclosing party
without an obligation of confidentiality]. Notwithstanding the foregoing, in
order to be considered Confidential Information, tangible information must be
marked with the words "confidential" or "secret" or with words of similar
import. Non-tangible information must be reduced to writing by the disclosing
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* Confidential information has been omitted and filed separately with the
Commission.
party, which writing must describe the information as confidential or secret and
must be delivered to the recipient party within thirty (30) days of the date of
disclosure. Notwithstanding the foregoing, information supplied by Seller
relating to the Systems and not so marked or reduced to writing shall be
presumed to be Confidential.
1.2 "Customer" means any Person that acquires Systems from Buyer
for its own use or for sale, lease or other disposition (e.g., an OEM or
distributor).
1.3 "Deliverables" has the meaning set forth in Section 3 hereof.
1.4 "Development Agreement" means the agreement entered into
between Canon Inc. and Seller.
1.5 "End User" means a Person that acquires a System directly from
Buyer or indirectly from a Customer of Buyer, and uses the System for any
purpose other than resale or further distribution.
1.6 "Improvement" means any and all derivatives, improvements or
betterments of the Seller Intellectual Property Rights made by Seller or any
other Person, including all intellectual property rights pertaining thereto,
including patent rights, copyright rights, trade secrets, Know-how or similar
rights recognized under applicable law.
1.7 "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.
1.8 "Seller Intellectual Property Rights" means the following
rights, knowledge, know-how and similar intellectual property owned by Seller
and used in the design, development, manufacture, assembly, servicing or testing
of the System or any portion thereof:
(a) Patent Rights;
(b) Copyrights and applications therefor (including the
right to make derivative works);
(c) Trade secrets;
(d) Know-how and any other proprietary information; and
(e) All Improvements
1.9 "Buyer Orders" has the meaning set forth in Section 6 hereof.
1.10 "Patent Rights" means all Seller domestic and foreign patents
(including applications therefor) and all divisions, continuations,
continuations-in-part, re-examinations and reissues or extensions thereof,
whether now or hereafter issued, containing a claim or claims in whole or in
part relating directly or indirectly to the design, development, use or
manufacture of the System or any portion thereof and the processes and methods
associated therewith, and all Improvements thereto that become the subject of a
patent application.
1.11 "Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization, government, governmental agency
or any other entity.
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1.12 "Specifications" means those specifications for Deliverables
and Products set forth in the Development Agreement.
1.13 "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.
1.14 "System" means commercial printing systems to be assembled for
Buyer pursuant to the license and incorporating the Deliverables, all as more
particularly described on Schedule 1 hereto, or as used herein as context may
require, any portion thereof.
1.16 "Technical Assistance" means the technical assistance set
forth in Section 4.2.
1.17 "Term" shall be three (3) years, commencing upon the Effective
Date.
1.18 "Territory" shall mean the United States, the Caribbean and
Guam.
2. SYSTEM DISTRIBUTION RIGHTS.
2.1 Rights and Appointment. Subject to the terms and conditions
hereof, Seller agrees to sell Systems to Buyer and to accept Buyer's Orders (as
defined in Section 6 hereinbelow) for Systems under the terms and conditions of
this Agreement. Furthermore, Seller hereby grants to Buyer the right to market,
sell, lease, promote, advertise and otherwise distribute documentation (which
may be modified, reproduced and distributed) and Systems, which Systems include
Deliverables, purchased from Seller hereunder. Such Systems may be sold to
Customers who are not End Users for resale to End Users. This right and
appointment is non-exclusive. [ * ]
2.2 Labeling; Use of MicroPress(R) Trademark. Buyer shall apply to
the Systems manufactured for sale by or for Buyer to Customers a statement
reasonably located and sized, identifying the fact that the Systems were
developed using and include Seller Intellectual Property Rights, proprietary to
Seller 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 Seller
by Buyer in advance of its use for pre-approval by Seller, which approval shall
not be unreasonably withheld. Furthermore, during the term hereof, Buyer may use
the trademark MicroPress(R), and Seller hereby grants a non-exclusive license to
Buyer for such purpose; however, except as stated in Section 11.3 herein, Buyer
may not continue to affix the trademark MicroPress(R) to Buyer products after
the effective date of expiration or cancellation of this Agreement. All usage of
such trademark, including any display thereof and the artwork comprising same,
and location and size, thereof must be approved in advance by Seller, which
approval shall not be unreasonably withheld. This trademark may only be used on
products assembled with or incorporating the Deliverables purchased and licensed
hereunder and for promotion and advertising therefor in the Territory.
2.3 Labeling; Use of Canon Trademark. Buyer requests and Seller
agrees to provide certain markings and identification, which includes the
trademark(s) and/or trade name of Buyer, on the
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Systems ordered and delivered to Buyer. Such markings and identification shall
be strictly in accordance with the requirements of Buyer as set forth in Buyer's
Trademark Guidelines, as provided to Seller and as may be updated from time to
time by Buyer. Seller is not authorized to use the trademark(s) and trade names
of Buyer on any products, other than Systems ordered by and delivered to Buyer,
or for any other purpose. Seller is hereby granted a limited trademark license
with respect to the Buyer trademarks set out in the above-mentioned markings and
identification, solely for the above-mentioned use. All other use is prohibited.
This license shall terminate on the earlier of termination of this Agreement or
failure of Seller to maintain the quality requirements set out in this
Agreement. Seller shall obtain no rights to or interest of any kind in any Buyer
trademarks or trade names other than the limited right to use set out above.
2.4 Reservation of Rights. Nothing in the Agreement shall prevent
Buyer from manufacturing or procuring from other sources like or comparable
products.
3. DELIVERABLES.
3.1 Defined. For each System purchased hereunder, Seller shall
deliver, in accordance with purchase orders issued by Buyer, the servers,
software, documentation in electronic form and related technology and
communications hardware (the "Deliverables"). "Products" shall have the same
meaning as Deliverable and these terms shall be interchangeable.
3.2 Delivery. The Deliverables shall include, as appropriate,
certain documentation related thereto prepared by or for Seller. The
Deliverables shall be delivered F.O.B. Seller's locations in Norcross, Georgia,
U.S.A. All risk of loss shall be conveyed and passed to Buyer upon delivery of
the Deliverables at Seller's facility to Buyer or its carrier or other agent. To
the extent any of the Deliverables includes Seller Intellectual Property Rights,
including without limitation, software, codes, Know-how, Patent Rights, Licensed
Intellectual Property Rights and other such rights, no title will pass to Buyer
(although End Users will be afforded a software license as provided in Section
8.4 hereof). Title will pass to Buyer upon delivery as to server, other
hardware, media and other items included within the Deliverables which do not
constitute nor comprise Seller Intellectual Property Rights.
4. FEES AND PRICES.
4.1 Product Purchase Price. Product purchase prices for
Deliverables shall be as provided on Schedule 1 (the "Price List") for the Term
of this Agreement. Seller shall be entitled to add new options, servers,
software and products to the Price List after mutually agreeing upon pricing
with Buyer, and Buyer shall be entitled to purchase such new Deliverables under
the terms and conditions of this Agreement. Seller may, from time to time,
revise the Price List. Any change in the Price List will be effective as to
Buyer Orders received [ * ] days after the issuance of such revision, which has
been mutually agreed upon by the parties.
4.2 Consulting, Training Compensation. As compensation for
post-launch consulting and training required to be provided in addition to
Technical Assistance, Buyer shall pay Seller consulting and/or training fees,
set forth in Schedule 2, attached hereto and incorporated herein by reference.
In addition, Buyer shall reimburse, at cost, Seller's travel and living expenses
incurred in connection with such consulting and training as reasonably incurred.
Such travel and living expenses shall be pursuant to Buyer's T&E policy, which
shall be provided to Seller and may be changed by Buyer from time to time. All
invoices submitted for reimbursement must be accompanied by appropriate
substantiation. The fees shall be subject to adjustment only by the mutual
written agreement of the parties. For clarification
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purposes, "post-launch" shall commence on the day after the first shipment of
Deliverables to Customers.
5. PAYMENTS.
Payments for license fees and equipment purchase price amounts in
respect of the Deliverables for consulting and training and for maintenance
shall be due and payable by Buyer net [ * ] days from the date of invoice [ * ].
A late payment charge of one and one half percent (1.5%) per month shall be
charged upon undisputed unpaid balances due for more than [ * ] days, provided
that Seller has notified Buyer in writing of such delinquency. In the event such
a delinquency in payment by Buyer extends for more than [ * ] days from Seller's
written notice thereof, Seller reserves the right to request advance payment of
Buyer Orders until the delinquency is remedied by Buyer. All pricing and fees
under this Agreement are exclusive of taxes. Except for taxes based on Seller's
net income, Buyer 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 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, Buyer is required to withhold tax or any other amount from any
payment to Seller, the amount due to Seller shall be increased to the amount
Seller would have received if no withholding had been required.
6. BUYER ORDERS.
6.1 Monthly Forecasts and Purchase Orders. Each month, Buyer shall
submit to Seller a [ * ] forecast of its expected orders for products. The first
forecast will be submitted [ * ] days in advance of the first month's order for
products. Buyer shall also issue written purchase orders ("Buyer Orders") to
Seller for Deliverables. All Buyer Orders shall specify: (a) the quantities and
descriptions of the Deliverables ordered; and (b) requested delivery dates and
shipping instructions. All forecasts and Buyer Orders are hereby deemed
confidential and may not be disclosed except in order for Seller to fulfill its
obligations hereunder.
6.2 Cancellation and Rescheduling. Monthly forecasts shall specify
forecasted order quantities by month with the first (most current) month's
Deliverables quantity being firm. Buyer may cancel any purchase order in whole
or in part in accordance with the lead-times and changes set forth in the
following schedules.
Number of Days Between Charge
Receipt of Cancellation and
the Scheduled Shipment Date
60 Days or Over [ * ]
31-59 Days [ * ]
0-30 Days [ * ]
With advance consent of Seller, Buyer may delay shipment of scheduled
Deliverables one time for a maximum of [ * ] days subject to the
lead-time and charges set forth in the following schedules:
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Number of Days between % of Units Maximum
Receipt of Notice of Rescheduling Rescheduled Days Unit may
and the Scheduled Shipment Date [ * ] be Rescheduled
60 Days or More [ * ]% [ * ] Days
31-59 Days [ * ]% [ * ] Days
0-30 Days [ * ]% [ * ] Days
It is hereby agreed that any and all cancellation charges set forth in the
Section shall constitute Buyer's sole liability for same.
6.3 Order Acknowledgment and Acceptance/Rejection. The terms and
conditions of this Agreement shall apply to all Buyer Orders submitted to Seller
and supersede any different or additional terms contained on Buyer's Orders or
Seller's order acknowledgments or other similar documents. All Buyer Orders are
subject to acceptance, which acceptance shall not be unreasonably withheld by
Seller, by issuance of an order acknowledgement or similar document.
Notwithstanding the foregoing, Buyer Orders conforming to the requirements of
this Agreement, which are not rejected by Seller within [ * ] days of receipt,
shall be automatically be deemed accepted by Seller. Seller shall use best
efforts to meet the delivery dates of accepted Buyer Orders. Seller shall
immediately notify Buyer, in writing, of any anticipated delay in meeting the
delivery schedule, stating the reasons for the delay. If Seller's delivery fails
to meet the committed delivery schedule, then Seller, upon Buyer's sole option,
shall expedite the routing at Seller's sole expense, however, if Seller's
delivery fails to meet the schedule by in excess of [ * ] days, then Buyer, at
its sole option and without penalty or any additional expense of any kind, may
(i) require Seller to expedite the routing by the fastest available commercial
carrier, (ii) reschedule to delivery, or (iii) cancel the order in whole or in
part with no penalty or charge of any kind. Buyer shall have the right to
inspect Deliverables after delivery by Seller and to reject nonconforming or
defective Deliverables within [ * ] days of the date of actual arrival at the
delivery premises set forth in the shipping instructions by requesting a Return
Material Authorization number from Seller and returning the defective or
nonconforming Deliverables to Seller, freight collect, F.O.B. Customer's
shipping dock. Seller shall, at its sole option and expense, either repair or
replace the defective nonconforming Deliverables and return them as directed,
freight prepaid, F.O.B. Seller's shipping dock, Norcross, Georgia. Seller shall
not be responsible for any expediting expenses that may result from orders from
Buyer that exceed Buyer's forecast for the applicable [ * ] day period or the
applicable [ * ] day period.
6.4 Inventory. Seller agrees to use commercially reasonable
efforts to carry in "safety stock" a minimum of [ * ] supply (as set forth on
the latest monthly forecast) of completed Deliverables to accommodate any
unforeseen or expedited demand on the part of Buyer.
6.5 Packing Instruction. All Deliverables shall be packaged and
prepared for shipment in a manner which (i) follows Buyer's packaging and
routing guidelines, provided such guidelines follow commercially reasonable
standards, a copy of which will be provided to Seller, (ii) follows good
commercial practice, (iii) is acceptable to common carriers for shipment and
(iv) is adequate to ensure safe arrival. Seller shall xxxx the outside of each
shrink wrapped pallet with the applicable Buyer part numbers and any necessary
lifting and handling information. Each shipment shall be accompanied by a
packing slip which will include Buyer's part numbers, purchase order number,
Seller's part number and the quantity shipped.
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* Confidential information has been omitted and filed separately with the
Commission.
6.6 Drop Shipment. Buyer and Seller have agreed that Seller will
drop ship the Deliverables as directed by Buyer in the shipping instructions,
provided that each purchase order specifies only one shipping location.
7. MAINTENANCE AND POST-RELEASE TECHNICAL SUPPORT.
7.l Bug Fixes. With respect to any "bugs" which are discovered in
any software contained in the Product ("Product Software") and which Seller and
Buyer mutually determine require a fix, Seller covenants and agrees that it
shall be solely responsible for correcting such bugs promptly (but in any event
no later than [ * ] days after notification by Buyer) during the term hereof [ *
]. Any product upgrades or requests for changes to the Product Software to
maintain compatibility with other products shall be governed by the Development
Agreement.
7.2 Support for Software Products. Seller shall maintain and make
available to Buyer, commencing within [ * ] days after execution of this
Agreement [ * ] ("Support Period"), an operational number to explain the use of
the functions and features of the software contained in the Product Software, to
provide system diagnosis (to determine whether failures are attributable to
defects in any Product Software or the Product Software as incorporated, or used
in conjunction with, Buyer's products) and for warranty service. Seller will
maintain a database of all hotline activity related to the Product Software,
which will be available to Buyer on a continuous basis in a mutually-agreed
medium. Except when the nature of the support makes direct contact by Seller
necessary, Buyer shall provide the interface to its retail dealers and other
customers for all support and maintenance of the Product Software. For example,
Seller shall furnish Buyer with MicroPress software patches, mutually agreed
upon bug fixes and other modifications from time to time, together with
reasonably detailed installation instructions, and Buyer shall generally be
responsible for installing the same in the field population of the Products.
7.3 Levels of Support. During the Support Period, Seller shall use
commercially reasonable efforts to respond to, and to work diligently and
continuously to correct, reproducible defects in the Product Software identified
by Buyer, and/or by End User or Buyer's authorized vendor, within the following
time periods (in working days):
Defect level Description Respond within Correct within
------------ ----------- -------------- --------------
Critical Product crashes under normal use [ * ] [ * ]
or is unusable as a whole
Serious Important product feature is unusable or [ * ] [ * ]
product performance is unacceptable
Minor Less important product feature is unusable [ * ] [ * ]
or is resolvable by easy temporary customer
work around, or derogation in product
performance is slight.
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In the event no correction is provided within the time period specified, Seller
shall devote additional and/or more experienced personnel or consultants to
address the needed correction as expeditiously as possible.
7.4 Support for T/R Systems Hardware Products. Seller, or its
authorized vendors, shall provide support directly to End Users pursuant to the
software and hardware warranties, which shall be packaged, with the Products and
is hereto attached as Schedule 4.
7.5 Remedies. Buyer may, at its option, treat Seller's failure to
comply in a material manner with Sections 7.1 through 7.5 above as a material
breach of this Agreement and pursue termination as provided in Section 11.2
below.
7.6 Professional Services. If requested by Buyer, and at Buyer's
sole discretion, Seller agrees to provide consulting, installation, training,
marketing, or technical support services (other than services to be performed [
* ] pursuant to this Section 7) in connection with the use, implementation,
development and enhancement of the Products for the Buyer's products [ * ].
Seller shall provide Buyer with a minimum of thirty (30) days' notice prior to
any increases in this rate. In connection with any on-site installation or
training services requested by Buyer, Buyer shall also reimburse Seller at cost
for its reasonable and customary out-of-pocket transportation and lodging
expenses provided that such expenses are approved in advance by Buyer and are
submitted with the proper documentation.
8. OWNERSHIP AND PROPRIETARY RIGHTS.
8.1 Ownership. Seller represents and warrants that it owns all
rights, title and interest in and to the Seller Intellectual Property Rights and
the Deliverables as are necessary to sell the Deliverables and to grant the
right and licenses granted by it under and pursuant to this Agreement. Seller
further represents and warrants that as of the Effective Date of this Agreement,
it does not know or have reason to believe that the Deliverables or Systems, or
components thereof including software and related documentation to be provided
by Seller hereunder infringe any U.S. or foreign patent, copyright, intellectual
property or other proprietary right of any party. Seller further represents and
warrants that it is not a party to any legal proceeding (and knows of no claim
against it) in which such infringement is alleged.
8.2 Proprietary Rights and Protection of Confidential Information.
The parties acknowledge that the Confidential Information provided by the
parties pursuant to this Agreement constitutes valuable trade secrets and/or
confidential information of the disclosing party, ownership of which is not
transferred by this Agreement. Ownership of all applicable copyrights, trade
secrets, patents and other intellectual property rights in the Seller
Intellectual Property Rights and the Deliverables shall remain vested in Seller.
Title to all Seller Intellectual Property Rights and any derivative works
thereof shall remain with Seller. No Confidential Information shall be disclosed
to any third party whatsoever without the prior express written approval of the
disclosing party, and all such Confidential Information shall be protected by
the recipient party with at least the same diligence, care and precaution that
the recipient party uses to protect its own confidential and trade secret
information, but in no event less than reasonable care. Except as otherwise
provided in a further written agreement between the parties, all tangible
Confidential Information (including without limitation all equipment and other
materials containing any Confidential
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Information) shall, immediately upon the disclosing party's request, be returned
to the disclosing party, including any and all copies, translations,
interpretations and adaptations thereof. Neither party shall use the
Confidential Information except as required to fulfill the purposes of this
Agreement. Buyer shall not remove Seller'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 Buyer containing
the Seller Intellectual Property Rights or constituting the Deliverables. Seller
understands that Buyer may currently or in the future be developing information
internally, or receiving information from other parties that may be similar to
Seller's information. Nothing in this Agreement will prohibit Buyer from
developing products, or having products developed for it, that compete with
Seller's products, provided that in doing so, Buyer does not use or disclose
Seller's Confidential Information
8.3 Unauthorized Use or Copying. Except as expressly permitted
hereunder, Buyer shall not copy, modify or reproduce the Deliverables in any
way, nor shall it permit third parties to do so. Buyer agrees to provide
reasonably requested cooperation to Seller, at Seller's expense, in any action
relating to enforcement of Seller's proprietary rights.
8.4 End User License. Any software included in or with the Systems
is subject to license and not sale. Buyer shall distribute the software with
Seller's standard software license agreement, which is attached hereto as
Schedule 3 ("XXXX"). Such license agreement will be enclosed in the packaging or
start-up screen of the System or software (i.e. a "shrink wrap" or "click-wrap"
license). Neither Buyer nor its Customers shall have access to or rights in the
software source code. Except as otherwise provided herein, neither Buyer nor its
Customers or End Users shall have the right to copy, modify, reverse engineer,
or disassemble any software or part thereof. Buyer shall make no representations
or warranties on behalf of Seller. Buyer shall bind Seller to no representations
Buyer makes to its Customers or End Users or other third parties regarding the
Deliverables except as set forth in the applicable documentation therefor
provided by Seller.
8.5 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 Seller, such software should be afforded the same
protection by Buyer, as that of Seller's software.
8.6 Security. The software included within the Deliverables will
be protected by a security mechanism known as a "dongle." Buyer may copy the
software for distribution with Seller supplying the "dongle" for the software
for each System. Buyer shall not disable or provide to have disabled, the
security mechanisms protecting the software.
9. INDEMNIFICATION.
9.1 General Indemnity Each party hereto (an "Indemnitor") shall,
at its expense, indemnify, defend and hold the other party and its parent
company, affiliate companies, subsidiary companies, and operating divisions
(collectively, the "Indemnitees") harmless in connection with any claim, or in
any suit or proceeding brought against or threatened against the Indemnitees or
for injuries, losses, damages and expenses directly incurred by them based or
arising from the failure of the Indemnitor to comply with any provisions of this
Agreement or breach any representation of warranties provided for herein.
Indemnitor shall be given sole control of the defense and settlement of such
suit or proceeding. Indemnitees shall have the right, at their sole expense, to
participate in the defense and settlement of any infringement suit or settlement
thereof, and will provide reasonable assistance to Indemnitor at Indemnitor's
expense as to out-of-pocket expenses reasonably incurred by Indemnitees as
requested by Indemnitor, in connection
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with such claim, suit or proceeding. Indemnitor shall pay all costs (including
reasonable attorney's fees) incurred by, all settlements agreed to, and all
damages awarded against Indemnitees in respect of any such third party claim. If
the sale or use of a Deliverable is enjoined Seller shall, at its sole expense,
promptly (1) procure for Buyer the right to continue using the Deliverable (2)
modify the Deliverable to avoid the claim of infringement so long as it performs
in accordance with the specifications or (3) replace the Deliverable with a
non-infringing compatible and functionally equivalent product.
9.2 Infringement. Seller shall indemnify, defend and hold Buyer
harmless from and against any and all liabilities, losses, damages, fees, costs
and expenses, including without limitation reasonable attorneys' fees, incurred
by Buyer resulting from a third party claim, suit, action or proceeding (a
"Claim") alleging that the System, or any Deliverable contained therein,
infringes a third party U.S. patent or copyright or misappropriates any third
party's trade secrets; provided that Buyer (i) promptly notifies Seller in
writing of such Claim; (ii) provides Seller sole control of the defense or
settlement of such Claim; and (iii) provides Seller assistance at Seller's
request and reasonable expense. Buyer may participate in the defense or
settlement of the Claim at its own expense. If a final injunction is obtained
against Buyer for use of the System, or any Deliverable, or if Seller reasonably
believes that such injunction is likely, Seller will, at its option and its
expense, either (i) procure for Buyer the right to continue using the infringing
product, or (ii) modify the infringing product so that it becomes
non-infringing. If in Seller's opinion either of the above is not commercially
feasible, Buyer shall promptly cease selling Systems, as applicable, and Seller
shall refund to Buyer an amount equal to the royalties paid by Buyer for the
infringing Deliverable or amounts paid for the infringing units, depreciated on
a five-year straight line basis, calculated backwards from the date of
infringing event (i.e., payments made on the day of the infringing event would
be refunded fully, and payments made five (5) years prior to the event would not
be refunded at all, with a linear decrease in-between). Seller will have no
liability or obligation to indemnify for any claim arising from (i) the
combination of the System or any Deliverable with Buyer or third party materials
or intellectual property, unless it is determined by a court of competent
jurisdiction that the Deliverable is the infringing element of such Claim; (ii)
the modification or translation of the System or any Deliverable; (iii) any use
by Buyer of the Deliverable after Buyer becomes aware that the System or
Deliverable may be infringing; or (iv) any Improvements created by a party other
than Seller.
9.3 Entire Liability. The foregoing provisions of this Section 9
state the entire liability and obligations of each party and the exclusive
remedy of each party with respect to any alleged Intellectual Property Rights
infringement or misappropriation by the System or any Deliverable.
9.4 Insurance. Seller shall carry and maintain liability insurance
coverage to satisfactorily cover its obligations under this Agreement. Upon
Buyer's request, Seller shall provide Buyer with a Certificate of Insurance
evidencing such coverage.
10. WARRANTY.
10.1 Limited Warranty. Seller represents and warrants: (i) that for
[ * ] the hardware components of each Deliverable shall perform substantially in
accordance with the Specifications, and be free of defects in material and
workmanship; and (ii) that with respect to software provided under this
Agreement, [ * ] it shall perform substantially in accordance with the
specifications set forth herein and be free of defects in material and
workmanship. Seller shall, without charge to Buyer or Customer, within [ * ]
days after receipt of returned Deliverables from Buyer, repair or replace and
return, freight prepaid by
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* Confidential information has been omitted and filed separately with the
Commission.
Seller, any Product which is determined to be defective within this warranty
period, provided:
(a) Buyer, or Customer, notifies Seller of the alleged
defect prior to the expiration of the respective
warranty period;
(b) Buyer, or Customer, obtains a Return Material
Authorization (RMA) number from Seller before
returning the defective Deliverables to Seller at
Seller's expense; and
(c) The Product has not been damaged, subjected to
misuse, abnormal operation, improperly altered or
repaired or maintained in a manner which is
reasonably determined to have adversely affected
performance or reliability.
If any defects are found in the Deliverables even after the expiration of
warranty period, the parties shall negotiate in good faith to decide which party
will bear the expenses.
10.2 Systemic Defect. "Systemic Defect" shall, as to the
Deliverables, mean a Seller design or manufacturing defect of any type which
occurs in identical or substantially similar form or from a substantially
similar cause in at least five (5) percent or more units delivered in any
particular sixty (60) day period, provided that the installed base is at least
forty (40) units and such defect is identified by Buyer within three (3) years
of delivery of such units to Buyer or Buyer's Customers, as the case may be. In
the event of a Systemic Defect, Seller shall, at its expense, either (a) repair
all affected Deliverables, or (b) replace all affected Deliverables. Seller
shall not be required to cure any Systemic Defect for any Deliverables, which
have been subjected to accident, negligence, misuse, alteration, modification or
other extraordinary causes. In the event a Systemic Defect occurs within three
(3) years of delivery but at a rate of less than five percent (5%), Seller will
discuss with Buyer the nature of the problem and what measures by Seller should
appropriately be taken.
10.3 Safety Hazard. "Safety Hazard" shall mean any mechanical,
electrical, chemical or other feature of any Deliverables which is demonstrated
in a clear and convincing manner to create an immediate and substantial risk of
injury to persons and/or material damage to property, including to the
Deliverables or to the environment. In the event the parties, or a governmental
agency of competent jurisdiction, determines, that a Safety Hazard exists in the
Product, Seller shall: (a) expeditiously develop and implement changes
reasonably required to correct the Safety Hazard; (b) ensure that the
Deliverables as modified conforms to the Specifications; (c) as soon as possible
but not more than sixty (60) days after such determination, provide conforming
replacement parts or replacement Deliverables as necessary to correct the
failure in all affected Deliverables previously delivered to Buyer under this
Agreement and reimburse Buyer for the reasonable costs of repairing or replacing
the defective Deliverables in the installed base; and (d) implement corrective
measures eliminating the Safety Hazard in all new Deliverables delivered to
Buyer. Seller agrees to defend, indemnify and hold Buyer, its parent company,
[subsidiaries, affiliates, and operating divisions, harmless from and against
all liability, loss, damages, costs and expenses (including reasonable
attorney's fees) in connection with any claim that the Product contains a Safety
Hazard.
10.4 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES
PROVIDED IN THIS AGREEMENT, THE DELIVERABLES ARE PROVIDED, AND THE GRANT OF
LICENSE AS TO THE LICENSED INTELLECTUAL PROPERTY RIGHTS IS MADE, "AS IS." Seller
SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
Page 11 of 23
* Confidential information has been omitted and filed separately with the
Commission.
FITNESS FOR A PARTICULAR PURPOSE AS TO ANY TERMS OR SERVICES PROVIDED UNDER THIS
AGREEMENT.
10.5 Damage Limitations. EXCEPT WITH RESPECT TO THEIR INDEMNITY
OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR
ANY COLLATERAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR
CONNECTED IN ANY WAY WITH THIS AGREEMENT. EXCEPT WITH RESPECT TO THEIR INDEMNITY
OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S LIABILITY FOR ANY CLAIM ARISING
OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID TO Seller BY Buyer DURING THE [ * ]
MONTHS PRECEDING THE DATE OF THE CLAIM MADE BY Buyer.
11. TERM AND TERMINATION.
11.1 Expiration. This Agreement shall commence on the Effective
Date and shall continue for an initial term of three (3) 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 term, of its intention not to
renew.
11.2 Termination by Either Party. This Agreement may be terminated
by either party under any of the following conditions:
(a) if the other party is declared insolvent or bankrupt;
(b) if a petition is filed in any court and not dismissed
in ninety (90) days to declare the other party
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 the other party; or
(d) if the other party commits a material breach
(inclusive without limitation, any payment default)
of this Agreement which remains uncured for more than
thirty (30) days after written notice of such breach
is given by the party not in breach.
11.3 Duties Upon Termination. Upon termination, upon written
request by the other party to do so, the parties shall return all Confidential
Information, including all copies, together with any equipment, documentation or
other assets provided by the other party. Obligations remaining executory as of
the date of the termination or expiration of this Agreement or otherwise
intended by the parties to survive the Term, including but not limited to
warranty obligations, obligations to protect Confidential Information,
obligations to indemnify and the obligation to pay amounts due and owing
hereunder shall survive expiration or termination for any reason. The rights of
any End Users who are parties to any EULA's will be unaffected by such
termination or expiration. The distribution rights and related licenses shall be
extended with respect to any Buyer inventory and Deliverables ordered by Buyer
and accepted by Seller as of the date of termination, in order to allow Buyer to
sell its remaining inventory; however, Buyer shall have no right to order any
additional copies of the Deliverables after the termination or cancellation of
the Agreement.
Page 12 of 23
* Confidential information has been omitted and filed separately with the
Commission.
12. REGULATORY AGENCY COMPLIANCE.
All Products delivered hereunder, shall comply in all material respects
with the requirements of any regulatory agency or other body, governmental or
private, the government of the United States or any political subdivision
thereof, including but not limited to agencies regulating product safety, prior
to development, delivery or marketing of the Products in the United States,
Puerto Rico, the territories and possessions of the United States. Examples of
standards of which Seller shall be obligated to have the Products meet shall
include Underwriters Laboratory ("UL") and the Canadian Standards Association
("CSA"). Seller, at its sole expense, will obtain all required agency
certifications and approvals for the Products. Seller will further ensure that
the Product remain compliant with those regulatory agency requirements.
13. COMPLIANCE WITH ENVIRONMENTAL LAWS.
Seller represents and warrants to Buyer that upon and after the
Effective Date of this Agreement, Seller will not provide any Product to Buyer
which has come into physical contact with: (i) a Class I substance, as defined
in Section 611 of the Federal Clean Air Act (the "Act"), during any portion of
the manufacturing process; or (ii) a Class II substance, as defined in the Act
and Title 40, Code of Federal Regulations, Section 82 (the "Code"), during any
portion of the manufacturing process, where there has been a determination by
the U.S. Environmental Protection Agency that there is a substitute product or
manufacturing process for such Product which does not rely on the use of such
Class II substance, that reduces overall risk to human health and the
environment, and that is currently or potentially available, in accordance with
the Code.
14. GENERAL.
14.1 Force Majeure. Neither party shall 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. In the event of
any delay or anticipated delay by a party in the performance of its obligations
hereunder due to any causes beyond its reasonable control, that party shall
immediately notify the other in writing of such delay, setting forth the causes
therefor and the estimated duration thereof. Should a delay in performance by
any party continue or reasonably be expected to continue for a period of longer
than sixty (60) days, then the other party may terminate this Agreement and/or
any Orders, in whole or in part, by written notice to the other party, without
any further cost or obligation of the other party.
14.2 Jurisdiction and Venue. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND ALL DISPUTES HEREUNDER SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK, EXCEPT ITS CONFLICT OF LAW RULES. THE PARTIES HEREBY
AGREE THAT THE SUPREME COURT OF THE STATE OF NEW YORK AND/OR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SHALL HAVE JURISDICTION AND
VENUE OVER ANY CONTROVERSIES, PROCEEDINGS, OR DISPUTES IN CONNECTION WITH THIS
AGREEMENT. THE PARTIES EXCLUDE IN ITS ENTIRETY THE APPLICATION TO THIS AGREEMENT
OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF
GOODS.
14.3 Entire Agreement. This Agreement, including the Schedules and
Exhibits attached hereto, constitutes the entire agreement between the parties
with respect to this subject matter and supersedes all
Page 13 of 23
* Confidential information has been omitted and filed separately with the
Commission.
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.
14.4 Independent Contractors. It is expressly agreed that Buyer and
Seller are acting hereunder as independent contractors. Under no circumstances
shall any of the employees or agents of one party be deemed the employees or
agents of the other for any purpose.
14.5 Notice. All notice under this Agreement shall be in English,
in writing, and sent by registered or certified air mail, postage prepaid,
return receipt requested, by private courier delivery service, or by facsimile
(with a copy sent by air mail) addressed to the parties at the addresses set
forth herein or such other address of which either party may advise the other in
writing in accordance with this Article. Notice shall be deemed given on the
earlier of the date of receipt or ten (10) days after dispatch if sent by mail
or telecopier and on the date of delivery if sent by courier. All legal notices
shall be sent to Buyer at Xxx Xxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000, Attn: Xxxxxx
X. Xxxxxx, Associate General Counsel.
14.6 Assignment. The purported delegation or assignment by either
party of any or all of its duties, obligations or rights under this Agreement,
except for right to receive a payment in money, without the prior written
consent of the other shall be void.
14.7 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 remaining
part or provision of this Agreement.
14.8 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.
14.9 Other Distribution. Nothing in this Agreement shall be deemed
to preclude Seller from distributing or licensing Deliverables and the Licensed
Intellectual Property Rights, as it deems appropriate, or from appointing others
to do so, in or outside of the Territory.
14.10 Publicity. Seller shall not disclose, advertise, or publish
the existence or the terms or conditions of this Agreement, financial or
otherwise, without the prior written consent of Buyer. Seller may be required to
file a version of this Agreement, with material items redacted, including
without limitation, pricing terms, with the United States Securities and
Exchange Commission. Seller shall provide Buyer with a courtesy copy of such
redacted version and notice of filing.
15. INTERNATIONAL MATTERS.
15.1 Export License. Buyer shall be exclusively 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. Seller shall provide Buyer with assistance
and relevant documentation reasonably requested by Buyer in conjunction with the
procurement and renewing of export or import licenses.
15.2 Export Assurance. Regardless of any disclosure made by Buyer
to Seller of any ultimate
Page 14 of 23
* Confidential information has been omitted and filed separately with the
Commission.
destination of a Deliverable or any System assembled using same, Buyer shall not
export or re-export 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. Buyer hereby assures Seller 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.
15.3 Compliance with Local Laws. Buyer 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 Buyer
licenses or markets same. Seller agrees to provide, upon request by Buyer or
applicable government agency, such supporting documentation as shall demonstrate
compliance with applicable laws and regulations by the Deliverable or System.
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. CANON U.S.A., INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxx
------------------------ ------------------------
Title: President and Chief Title: Sr. Vice President &
Executive Officer General Manager
--------------------- ---------------------
Date: March 11, 2002 Date: April 8, 2002
--------------------- ---------------------
Page 15 of 23
* Confidential information has been omitted and filed separately with the
Commission.
SCHEDULE 1
PRODUCT SPECIFICATIONS AND PRICE LIST
[ * ]
Page 16 of 23
* Confidential information has been omitted and filed separately with the
Commission.
SCHEDULE 2
Post-Release Technical Support Program and Related Fees
Effective February 1, 1999
Daily Rates
Trainer (On-site) $[ * ]
Engineer $[ * ]
Senior Engineer $[ * ]
Managing Engineer $[ * ]
Executive Engineer $[ * ]
Notes: Does not include travel and living expenses.
Page 17 of 23
* Confidential information has been omitted and filed separately with the
Commission.
[TR SYSTEMS LOGO]
SCHEDULE 3
T/R SYSTEMS MICROPRESS(R) SOFTWARE LICENSE AGREEMENT
This Software License Agreement enumerates the terms and conditions upon which
T/R Systems, Inc., grants use of the MicroPress software programs ("Software")
and MicroPress documentation ("Documentation") to the end-user of the MicroPress
digital printing system. T/R Systems, Inc., the owner and licensor of the
Software and Documentation, is referred to as "Licensor", and the end-user and
purchaser of the MicroPress(R) system is referred to as the "User".
1. LICENSE. Licensor is the exclusive owner of the Software and
Documentation. Licensor grants to User, and User accepts, a non-exclusive
license to use the Software and Documentation.
User's right to use the MicroPress Software and Documentation under this
Agreement is called the "License." Software means the computer programs included
within the MicroPress digital printing system being sold to User
contemporaneously with delivery of this Agreement (the "Purchased MicroPress").
Documentation means any user manual and other materials provided User relating
to the Software.
2. AUTHORIZED USER. User alone has the right to use the Software and
Documentation. User may not allow another person or entity to use the Software
or Documentation, except to the extent permitted by Section 4 of this Agreement.
3. AUTHORIZED USE. User may use the Software and Documentation only with
the MicroPress digital printing system at User's principle place of business.
User may not use the Software in respect of any other printers or any other
equipment whatsoever.
Without T/R Systems' prior express written consent, User may NOT (a) copy the
Software, (b) copy the Documentation, other than for its internal use; (c)
decompile, disassemble, reverse engineer, or cross-compile the Software or seek
to do any of the foregoing; (d) merge or embed the Software into another
program; or (e) modify or alter the Software or Documentation, or (f) install
the Software on any equipment outside its principal place of business.
4. ASSIGNMENT. User may assign the License to another person, but ONLY
if (a) prior written approval is obtained from the Company, (b) the assignment
is for the remainder of the License term, (c) User delivers all of the Software
and Documentation to the assignee, (d) the assignee delivers the Software
License Agreement in this form in favor of Licensor, (e) the entire Purchased
MicroPress system is transferred and delivered to the assignee and (f) the
assignee agrees in writing with T/R Systems to be bound by the terms hereof.
When User assigns this License, User's right to use the Software and
Documentation ends. User may not assign the License or direct product of the
Software or Documentation to persons located in certain countries specified by
the United States Export Administration Act.
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* Confidential information has been omitted and filed separately with the
Commission.
5. TERM. The License is effective for a term coincident with use of the
Purchased MicroPress. Licensor may terminate the License if User violates this
Agreement. User must then return the Software and the Documentation and all
copies thereof to Licensor.
6. LICENSOR'S RIGHTS. Licensor's Software and Documentation contain
confidential unpublished information protected by copyright, trade secret,
trademark and patent laws. User may not disclose the Software or Documentation
to others, or remove or alter Licensor's ownership and copyright notices on the
Software, Purchased MicroPress or the Documentation. User must prevent any
unauthorized use, copying, or disclosure of the Software and Documentation.
These obligations survive any termination or the License.
7. INFRINGEMENT. User shall promptly notify Licensor if any party makes
a claim against User that the Software or Documentation infringes its rights. If
User gives Licensor sufficient notice and such claim of infringement is deemed
by Licensor to represent a bona fide claim, Licensor will at its option defend,
settle or compromise such claim. Licensor may at its option make the Software
and Documentation non-infringing, obtain for User the right to use the Software
and Documentation, or give User an appropriate refund based on the depreciated
value of the Software and the Documentation. This is User's sole remedy in the
event of a claim of infringement.
8. LIMITED WARRANTY AND DISCLAIMER OF OTHER WARRANTIES AND LIABILITIES.
Licensor warrants that the Software will be free of material defects for a
period of ninety (90) days immediately following the date of delivery. Without
limiting the generality of the foregoing, Licensor shall not have any
responsibility for any third party products, service, hardware, software or
other items provided with or incorporated into the MicroPress digital printing
system.
EXCEPT FOR THE LIMITED WARRANTY DESCRIBED ABOVE, THERE ARE NO WARRANTIES, EITHER
EXPRESSED OR IMPLIED, FOR THE SOFTWARE OR DOCUMENTATION, WHICH ARE LICENSED TO
USER "AS IS." LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTY AS TO PERFORMANCE OF THE
SOFTWARE OR AS TO RESULTS USER MAY OBTAIN FROM IT. LICENSOR ALSO EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, INCLUDING (WITHOUT LIMITATION) IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL LICENSOR, OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE
CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE OR DOCUMENTATION, BE LIABLE
FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHETHER ARISING
IN CONTRACT OR IN TORT RESULTING FROM THE USE OF THE SOFTWARE OR DOCUMENTATION
OR ARISING OUT OF ANY BREACH OF ANY WARRANTY. IN NO EVENT SHALL THE LICENSOR'S
LIABILITY TO USER FOR DAMAGES OF ANY NATURE EXCEED THE TOTAL CHARGES PAID FOR
THE SOFTWARE OR DOCUMENTATION BY THE USER.
9. GENERAL. This Agreement shall be governed by the laws of the State of
Georgia and the United States. If, notwithstanding the foregoing choice of law,
the law of another jurisdiction is applied to this Agreement, then any term of
this Agreement found to be inconsistent with such law shall automatically be
deemed to be revised to the limited extent necessary to comport with such law
without affecting any of the remaining terms. Any waiver by Licensor of a breach
of this Agreement shall not constitute a waiver
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* Confidential information has been omitted and filed separately with the
Commission.
of any later breach. No legal action arising out of this Agreement may be
commenced by User more than one year after the cause of action has accrued. In
any legal action to enforce this Agreement, the prevailing party shall be
entitled to recover reasonable expenses and attorneys' fees.
This Agreement represents the entire and complete agreement between the parties
hereto, and supersedes any prior agreement, oral or written, and any other
communications between the parties on the Software and Documentation. This
Agreement will be effective upon delivery of the MicroPress digital printing
system together with the License Software and Documentation.
T/R Systems, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
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* Confidential information has been omitted and filed separately with the
Commission.
SCHEDULE 4
T/R SYSTEMS MICROPRESS FOR CANON
ANNUAL MAINTENANCE AGREEMENT
Equipment Location (The End User) Billing Address
-----------------------------------------------------------------------------------------------------------------------------------
Company Reseller or End User
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx Xxx Xxxx Xxxxx Xxx
-----------------------------------------------------------------------------------------------------------------------------------
Contact Contact
-----------------------------------------------------------------------------------------------------------------------------------
E-mail address: E-mail address:
-----------------------------------------------------------------------------------------------------------------------------------
Telephone Fax Telephone Fax
-----------------------------------------------------------------------------------------------------------------------------------
Reseller Address
-----------------------------------------------------------------------------------------------------------------------------------
Company Contact
-----------------------------------------------------------------------------------------------------------------------------------
Address E-mail address:
-----------------------------------------------------------------------------------------------------------------------------------
City State Zip Telephone Fax
-----------------------------------------------------------------------------------------------------------------------------------
Maintenance Price: (based on its term) Sales Rep:
------------------- ---------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Terms
-----------------------------------------------------------------------------------------------------------------------------------
Agreement commences on the date of execution of this agreement by an authorized representative of T/R SYSTEMS.
CHECK ONE-> [ ] REGISTERING FOR MAINTENANCE FOR 1 UNIT
[ ] REGISTERING MAINTENANCE FOR MULTIPLE UNITS
-----------------------------------------------------------------------------------------------------------------------------------
Statement of Equipment Operability
-----------------------------------------------------------------------------------------------------------------------------------
I certify that the equipment described below is fully operational on the
signature date of this agreement. Fully operational means that the equipment
"powers on" and performs all functions described in the equipment operator
guide(s).
-----------------------------------------------------------------------------------------------------------------------------------
MODEL OR DESCRIPTION DONGLE #/SERIAL # INSTALL DATE PRICE
(Found in PSM/Help/About)
-----------------------------------------------------------------------------------------------------------------------------------
$
-----------------------------------------------------------------------------------------------------------------------------------
$
-----------------------------------------------------------------------------------------------------------------------------------
$
-----------------------------------------------------------------------------------------------------------------------------------
$
-----------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL $
----------------
SALES TAX $
----------------
TOTAL $
----------------
You (the Reseller or End user) are required to submit your completed Maintenance
Agreement to T/R Systems via fax to 000-000-0000 to be eligible for the terms of
this agreement. T/R Systems agreement obligations are limited to the terms set
forth:
T/R SYSTEMS provides an initial 12-month purchased Maintenance Agreement that
begins on the date that the system was shipped from T/R Systems, Inc. For future
years, an Annual Maintenance Agreement must be purchased in order to receive
support. If an Annual Maintenance Agreement is not renewed when the initial
Maintenance Agreement expires, you are subject to billable support and prorated
fees until an Annual Maintenance Agreement is purchased.
ANNUAL MAINTENANCE AGREEMENT TERMS
T/R SYSTEMS will provide to you, the End user, with:
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* Confidential information has been omitted and filed separately with the
Commission.
1. Unlimited telephone support from 8 am (EST) to 6 pm (EST) Monday
through Friday at 000-000-0000. After-hours emergency support is
available via pager at the same number.
2. MicroPress software upgrades for End users covered under this Agreement
(UPGRADES MUST BE REQUESTED BY THE CUSTOMER; THEY ARE NOT AUTOMATICALLY
SHIPPED).
3. A warranty against defects in materials and workmanship.
4. If a material defect is discovered in the MicroPress during the period
this Agreement is in effect, T/R SYSTEMS will repair or replace the
MicroPress with either new or refurbished replacement parts at no
charge. If T/R SYSTEMS is unable to restore the product to good working
order after a reasonable number of attempts, T/R SYSTEMS will, at its
discretion, replace the MicroPress.
5. Important Note: You (the End user) must contact T/R SYSTEMS Technical
Support for instructions and authorization before you install any third
party software or hardware on the MicroPress. Failure to do so may void
the terms of this Agreement.
To obtain service under this agreement, you (the End user) must do the
following:
1. Contact T/R SYSTEMS Technical Support at - 000-000-0000. Describe your
problem in full to a Technical Support representative. The Technical
Support representative will attempt to resolve your problem over the
phone. If the Technical Support Representative determines the
MicroPress needs to be serviced by a technician, and it is a material
defect or a problem covered under this Agreement, the MicroPress should
be returned to T/R SYSTEMS, at your expense, for service. You will be
given a Return Merchandise Authorization number (RMA) to place on the
box before shipping it to us.
2. If the MicroPress is returned to T/R SYSTEMS for service, you may be
charged a service fee under the following conditions:
a. damage was found to be caused by accident, abuse, misuse,
misapplication (this includes upgrading, installing, or
reinstalling any operating system, or removing files or
hardware from the MicroPress), or damage caused by inadequate
packaging; or
b. no trouble with the MicroPress can be found.
This Agreement applies only to software and hardware products manufactured by or
for T/R SYSTEMS that can be identified by the T/R SYSTEMS trademark, trade name,
or MicroPress logo affixed to them. Any Agreement on third party hardware,
including monitors, or software installed by T/R SYSTEMS on the MicroPress
product or sold along with the MicroPress product, is provided by the hardware
or software vendor, not T/R SYSTEMS. T/R SYSTEMS does not warrant any products
that are not T/R SYSTEMS products.
This Agreement does not apply if:
1. damage is caused by accident, abuse, misuse, or
misapplication, or service (including upgrades and expansions)
performed by anyone who is not an T/R SYSTEMS Authorized
Service Provider;
2. the product has been modified without written permission of
T/R SYSTEMS;
3. any T/R SYSTEMS serial number has been removed or defaced; or
This Agreement covers:
1. All hardware (except monitors) installed and/or shipped from T/R
SYSTEMS;
2. Functionality of software as installed on the MicroPress when shipped
from T/R SYSTEMS;
3. Functionality of peripheral items (keyboard, mouse, CD-ROMs, etc.)
included in the product shipped from T/R SYSTEMS;
4. Billable on-site assistance with correcting problems after installing
MicroPress updates if the correct procedures were followed and only if
T/R SYSTEMS Technical Support cannot resolve the problem over the phone
- please note: On-Site assistance is based on availability and the cost
is $125 per hour plus travel expenses;
5. Billable on-site assistance with correcting problems after installing
third party software if the procedures have been followed and the
software is on the approved list and only if T/R SYSTEMS Technical
Support cannot resolve the problem over the phone. On-Site assistance
is based on availability and the cost is $125 per hour plus travel
expenses.
This Agreement does NOT cover:
1. Color calibrations;
2. Installation or training on optional items, additional memory,
hardware, etc.;
3. Installation of third party software;
4. Service on a MicroPress that is damaged due to End user installing a
new version of an operating system;
5. Repair/service on a MicroPress that is damaged due to End user
installing new hardware (such as a modem, sound card, SCSI card, etc.);
6. Repair/service on a MicroPress that is damaged due to End user
installing third party software (MS Office, CorelDraw, MS Publisher,
etc.) that is not on our approved software list and for which the End
user did not first contact T/R SYSTEMS Technical Support for
authorization and/or procedures;
7. Re-training of employees
8. Support of computers (Macintosh or PC) that are not the MicroPress;
9. Service or support if MicroPress is damaged due to customer removing or
deleting files, or removing or attempting to remove hardware unless
instructed to do by an T/R SYSTEMS Technical Support representative.
In the event any equipment covered by this agreement is moved to a different
location, T/R SYSTEMS must be notified in writing to ensure continuous service
coverage.
THE WARRANTY AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL
OTHERS, WHETHER ORAL OR WRITTEN, EXPRESSED, IMPLIED OR STATUTORY. T/R SYSTEMS
SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT
LIMITATION,
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Commission.
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. No T/R
SYSTEMS dealer, agent, or employee is authorized to make any modification,
extension, or addition to this Agreement.
T/R SYSTEMS IS NOT RESPONSIBLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY, OR ANY OTHER LEGAL
THEORY, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, DOWNTIME, GOODWILL, BUSINESS
INTERRUPTION, WORK STOPPAGE, LOSS OF BUSINESS INFORMATION, COMPUTER FAILURE OR
MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL OR PECUNIARY DAMAGES OR LOSSES
OCCASIONED BY THE USE OF OR INABILITY TO USE THE MICROPRESS. DAMAGE TO OR
REPLACEMENT OF EQUIPMENT AND PROPERTY, AND ANY COSTS OF RECOVERING,
REPROGRAMMING, OR REPRODUCING ANY PROGRAM DATA STORED IN OR USED WITH T/R
SYSTEMS'S PRODUCTS.
Some jurisdictions do not allow the exclusion or limitation of incidental or
consequential damages or exclusions of implied warranties, so the above
limitations or exclusions may not apply to you. This Agreement gives you
specific legal rights, and you may also have other rights that vary from
jurisdiction to jurisdiction.
MicroPress is a registered trademark of T/R Systems, Inc.
END USER AUTHORIZATION T/R SYSTEMS AUTHORIZATION
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Name (Please print clearly) Name (Please print clearly)
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Signature Signature
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Date and Title Date and Title
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Commencement Date Expiration Date
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Page 23 of 23
* Confidential information has been omitted and filed separately with the
Commission.
