EXHIBIT 10.13
SELEX MINI-ENGINE OEM AGREEMENT
This Agreement made as of the 26th day of May, 1994, by and between
SELEX SYSTEMS U.S.A. Inc., a California corporation (hereinafter "SSUI") having
its principal office at 0000 Xx. Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000
and CALCOMP INC., a California corporation (hereinafter "Buyer"), having its
principal office at 0000 Xxxx Xx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H:
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WHEREAS, Buyer desires to purchase from SSUI on a non-exclusive basis
units of a certain component for incorporation by Buyer into ink jet plotters to
be marketed by Buyer under its private label; and
WHEREAS, SSUI agrees to cause the manufacture of such component by
Copyer Co., Ltd. ("Copyer"), and to sell the same to Buyer in accordance with
the terms of this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions
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A. The term "Equipment" means (i) certain items comprising a
mini-engine which are described in the specifications annexed hereto as Exhibit
A (collectively, the "Component"), including a certain engine controller (the
"Engine Controller") developed by Buyer pursuant to a Development Agreement
dated as of May 26, 1994 between Buyer and Copyer, (ii) the spare parts for the
Component as listed in Exhibit B hereto, and (iii) a certain retaining pin,
retaining shaft, and BJ Ink Cartridge, in each case with such engineering
changes as may be incorporated therein under the provisions of paragraph 4
hereof. The term "Equipment" does not include any other items unless both
parties agree in writing pursuant to a separate negotiation.
B. "Calendar Quarter" as each calendar quarter, or part thereof, to
occur during the relevant period.
2. Purchase and Sale
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A. SSUI agrees to sell units of the Equipment to Buyer and Buyer
agrees to purchase the same, upon the terms stated in this Agreement. Buyer
agrees to purchase the Equipment only from SSUI. It is Buyer's non-binding
forecast that during the first one (1) year of the term of this Agreement Buyer
will purchase from SSUI approximately 7000 units of the Component.
B. Buyer represents and warrants that it is purchasing the Equipment
from SSUI solely for incorporation into ink jet plotters to be marketed by Buyer
under its trade names and trademarks, as specified in paragraph 5.B below, and
that is shall use the Equipment for no other purpose. Buyer represents and
warrants that it is an experienced designer of equipment and/or software for its
systems and that it needs no support from SSUI in incorporating the Equipment in
its ink jet plotters. Buyer shall be fully responsible for all costs and
expenses incurred by it in incorporating the Equipment in such ink jet plotters,
including costs of related housing, assembly and packaging.
C. Buyer represents and warrants that it is in the business of
marketing, selling, and/or leasing plotter equipment worldwide, and that Buyer
shall market the ink jet plotters containing the Equipment through its
affiliates and distribution channels worldwide; provided that in the United
States Buyer shall market its ink jet plotters only through its authorized
dealer network and directly to large end user customers.
D. Buyer represents that Buyer shall market and service the
Equipment as part of ink jet plotters at its sole risk and without expense to
SSUI, except for those responsibilities expressly undertaken by SSUI herein or
in the Specifications annexed hereto as Exhibit A. Without limiting the
foregoing, Buyer shall, in connection with the distribution efforts, be
responsible for (i) the exportation of the Equipment from the United States,
including compliance with all U.S. export control laws and regulations and
payment of all applicable customs duty charges, and (ii) obtaining all necessary
governmental approvals and complying with applicable laws and regulations,
except as otherwise provided in Exhibit A.
3. Price, Delivery, Ordering and Payment Terms
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A. The prices set forth in Exhibit C hereto shall be applicable to
Buyer's purchase orders for the Component which are placed during the period
through December 31, 1994. SSUI may change the prices for the Component ordered
at any time thereafter during the term of this Agreement on ninety (90) days
notice to Buyer. The spare parts pricing provisions are set forth in
subparagraph 6.A. The prices set forth in Exhibit C-1 shall be applicable to
Buyer's purchase orders for the retaining shaft, retaining pin and BJ Ink
Cartridge, and SSUI shall have the right to change the prices therefor at any
time upon ninety (90) days prior written notice. Once Buyer has placed an Order
(as defined in Paragraph C below), the prices of the Equipment shall remain
fixed except as follows:
(i) The parties hereto acknowledge that the prices for the Equipment
as set forth in Exhibit C hereto have been determined based on an
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exchange rate of 107.50 Yen/Dollar (the "Base Exchange Rate"). Subject to the
last paragraph of this subparagraph A, if, during any Calendar Quarter, the
Exchange Rate (as hereinafter defined) varies from the Base Exchange Rate by 3%
or more, the prices for the Equipment delivered to Buyer during the next
succeeding Calendar Quarter shall be adjusted by the amount of the Exchange Rate
fluctuation, in accordance with the following formula:
AP = P x (ER + BER)
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2ER
AP: the adjusted price
P: the price of Exhibit C
ER: the applicable Exchange Rate
BER: the Base Exchange Rate
As used herein, the "Exchange Rate" shall mean the average of all the
official quotation rates to customers quoted by the Bank of Tokyo, Ltd. (Middle
Rate of Telegraphic Transfer Selling Rate and Telegraphic Transfer Buying Rate)
for the U.S. Dollar in exchange for the Japanese Yen on each business day of the
first two calendar months of the relevant Calendar Quarter.
If, during any Calendar Quarter, the Exchange Rate varies from the Based
Exchange Rate by 6% or more, the parties agree to meet and to negotiate in good
faith an amendment hereto to remedy and hardship to the party affected by such
extreme Exchange Rate fluctuation, which amendment may include a change in the
prices for the Equipment, the formula provided above and/or the Base Exchange
Rate.
(ii) The prices of the Equipment have been determined based on assumed
applicable United States customs duty rates ("Base Duty Rates"). The Base
Duty Rates or each item of Equipment are set forth in Exhibit C hereto. If with
respect to any deliveries hereunder the actual duty varies from the Base Duty
Rate, of if any tariffs or surcharges are imposed on the Equipment, with the
result that the actual duty rate (however designated) assessed on the
importation of the Equipment vary from the Base Duty Rate, then the prices of
the Equipment will be multiplied by 100% plus the percentage fluctuation from
the Base Duty Rate. The parties recognize that on occasion the U.S. computes
duty based on its estimate of fair value rather than the sales price agreed to
by the parties, which may result in the duty actually paid being higher or
lower than the sum which the percentage initially contemplated by the parties
would have yielded. Such increase or decrease shall be treated as a change in
duty rate. Further, in the event that the U.S. Government retroactively claims
additional duty with respect to
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orders that have already been paid for, then any such increase from the
effective rate originally applied to the order shall be charged to Buyer as
provided above. Any retroactive decreases in duty shall be credited to the
Buyer as provided above.
B. SSUI shall deliver all Equipment to Buyer F.O.B. SSUI's designated
California area warehouse, whereupon all risk of loss shall pass to Buyer.
Prices are inclusive of usual factory tests and inspection, standard commercial
export packing for ocean shipment and freight transportation of a surface
nature, but exclusive of all expedited transportation requested by Buyer to the
point of delivery, all freight transportation or insurance from the point of
delivery and any packing other than SSUI's standard commercial export packing,
all of which shall be for Buyer's account. Each Order, if requested by Buyer,
shall be shipped, at Buyer's expenses, by SSUI from the point of delivery to the
destination specified by Buyer in its Order.
C. Subject to subparagraph E below, Buyer shall order units of
Equipment by formal, irrevocable monthly purchase orders ("Orders") which shall
(a) incorporate the terms of this Agreement, by reference to its date, as the
only operative terms of such Orders, (b) be received by SSUI before the
termination of the Agreement (or thereafter, in the case of spare parts, as
provided in subparagraph 6.A below or in the case of the retaining pin and the
retaining shaft, as provided in subparagraph 6.C below) (c) identify each item
of Equipment by model number, (d) indicate quantity, price (on a pro forma
basis, with the invoice price to be determined in accordance with the provisions
of this Agreement) and shipping instructions, and (e) specify delivery dates
which shall be no sooner than four (4) months from the date of such Order. An
Order shall not be deemed accepted unless and until written confirmation thereof
is sent to Buyer. Within two (2) weeks of SSUI's receipt of an Order, SSUI shall
either accept (as described above) or reject the Order. SSUI shall confirm
Orders which are in conformity with the provisions of this Agreement. It is
understood and agreed that for administrative convenience Buyer may use its form
of purchase order to effect Orders hereunder. If SSUI elects to honor an Order
which varies from the provisions hereof, any terms in such Order which conflict
with, or supplement, the terms of this Agreement shall be deemed null and void,
and this Agreement shall govern.
D. Buyer may place Orders only during the first ten (10) business days
of each calendar month during the terms of the Agreement (or thereafter in the
case of spare parts, as provided in Section 6 below). Orders placed by Buyer
prior to such ten (10) day period shall be irrevocable, but shall, for purposes
of this paragraph 3, be deemed received by SSUI as of the first day of such ten
(10) day period. Each such monthly Order shall specify the number of units to be
delivered during the 4th succeeding month (for example, an Order placed during
the first ten (10) days of
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January shall be delivered during May). Orders shall be for not less than the
minimum quantities set forth in Exhibits A and B.
1. Schedule 1 hereto lists the units of Equipment for which
Buyer has heretofore placed Orders and the scheduled delivery dates thereof.
The parties intend that all of such Orders shall be subject to the terms and
conditions of this Agreement in all respects.
E. Buyer shall have no right to cancel any Orders of Equipment
which have been specifically modified for the Buyer. Buyer may cancel Orders of
Equipment or decrease the quantity of Equipment covered by an Order upon written
notice to SSUI prior to the then scheduled shipment date of such Equipment, and
payment of the following cancellation charges for each unit of the Equipment
cancelled:
Days Prior to then Scheduled
Delivery Date that Written Percentage of
Notice is Received by SSUI Purchase Price
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0-14 20%
15-30 15%
31-90 10%
91-150 3%
151+ 0%
Buyer may also defer scheduled deliveries of Equipment for up to ninety (90)
days from the originally requested delivery date of Orders upon Buyer's payment
of a deferral charge equal to 0.03% of the purchase price of the Equipment for
each day the Order is deferred. SSUI and Buyer recognize that due to the nature
of the Equipment the calculation of damages resulting from cancellation or
deferral of Orders would be difficult. Therefore, the foregoing deferral and
cancellation charges represent fixed and agreed upon liquidation damages in lieu
of other damages and are not intended as a penalty.
F. In each Order, Buyer shall include rolling forecasts estimating
the Equipment to be ordered during the next succeeding three (3) months. Each of
Buyer's estimates for a particular month shall not vary from the preceding
estimate by more than twenty percent (20%) and each Order for a particular month
shall not vary by more than twenty percent (20%) from the final monthly estimate
for such month.
G. SSUI shall use its reasonable efforts to ship Equipment to meet
Buyer's requested delivery dates; provided, that Buyer's orders and the
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requested delivery dates thereunder are in conformity with the provisions of
this Agreement;
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and provided further, that should worldwide demand for the Equipment exceed
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Copyer's supply thereof, SSUI shall have the right to allocate limited
quantities of the Equipment in a fair and reasonable manner among all of its
customers, even though this may effectively limit quantities requested by Buyer.
H. In order to preserve SSUI's claims against its insurance carrier,
Buyer shall give notice with respect to any obvious damage which appears to be
attributable to conditions in transit no later than thirty (30) days after
delivery of the shipment to Buyer (as evidenced by a shipper's receipt
therefor), and Buyer shall in addition cooperate in connection with the
inspection and insurance report which is customarily made following such notice
of insurable damage. Buyer shall be liable for obvious damages to Equipment
where the claim has been disallowed by the insurance carrier due to untimely
notice by Buyer as required hereunder.
I. Invoices shall be rendered at the time of delivery of the Equipment,
and are payable net thirty (30) days from the actual or requested delivery date,
whichever is later. There shall be added to the price of each unit the amount
of sales or use tax applicable to the sale by SSUI to Buyer, unless Buyer shall
furnish a resale or other exemption certificate to SSUI. Under no circumstances
shall there be added to such price the amount of any tax measured by SSUI's
gross or net income.
J. Notwithstanding subparagraphs E and G above, Buyer may, at any time
that an emergency situation exists, place an Order for such quantity of spare
parts as is required, and SSUI shall use best efforts to deliver such emergency
Order within two (2) business days of SSUI's receipt thereof; provided, that
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SSUI shall not be required to maintain particular inventories of spare parts for
purposes of filling any such emergency Orders and, should available inventories
of spare parts requested by Buyer be limited, SSUI shall have the right to
reasonably allocate available spare parts in light of the requirements of SSUI,
Buyer and SSUI's other customers. Buyer shall pay a surcharge determined by SSUI
to cover its costs and expenses in filling emergency Orders for spare parts.
K. SSUI agrees that if it sells to any customer any product substantially
similar to the Equipment in quantities less than or equal to the quantities
previously purchased by Buyer hereunder at a per unit price less than the per
unit price then applicable to Buyer in accordance with the provisions of this
Section 3, then the per unit prices to Buyer for units of the Equipment
delivered thereafter shall be such lower prices for so long as such lower prices
remain in effect for the other customer.
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4. Modifications to Equipment
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The initial specifications for the Equipment are listed in Exhibit A
hereto (the "Specifications"). SSUI, on its own, or at the instance and request
of Buyer, may cause Copyer to modify the Equipment or mode of manufacture of the
Equipment at any time to meet such amended Specifications which are furnished to
Buyer and which improve or do not adversely affect performance, serviceability
or salability of the ink jet plotters or interchangeability of spare parts
therefor. If SSUI proposes modifications to the Equipment which would
substantially change the size or weight of the same, or adversely affect
performance, serviceability or salability of the ink jet plotters or
interchangeability of spare parts, or materially change the external
configuration thereof, SSUI shall discuss such modifications with Buyer in order
to obtain Buyer's approval, in writing, which shall not be unreasonably
withheld. Approvals shall be deemed given if Buyer does not disapprove the
modifications within thirty (30) days of receipt of SSUI's written request
therefor.
5. Service, Training and Promotional Activities
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A. Buyer shall be required, at its own cost and expense, to provide
adequate service, including in-warranty service, to Buyer's customers for the
ink jet plotters containing the Equipment for a reasonable time (including after
termination of the Agreement).
B. Buyer shall promote and market the Equipment in ink jet plotters
to be marketed under Buyer's own trade names and trademarks. Buyer shall not
use SSUI trademarks and shall not describe itself as a "Selex Systems
Distributor". Under no circumstances shall Buyer use the name "Selex" as part
of its corporate or business name, or in any other way in connection with
marketing of ink jet plotters.
6. Spare Parts
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A. SSUI's current list and prices of spare parts is set forth in
Exhibit C-1 hereto. SSUI shall have the right to substitute a new list of spare
parts, and to change the prices therefor, at any time upon ninety (90) days
prior notice to Buyer. Buyer may place Orders pursuant to this Agreement during
the term of the Agreement and for a period of five (5) years from the date of
expiration or termination of the Agreement or the date of discontinuance of the
Component, whichever event occurs first, for any spare parts (i) which during
such five (5) year period are made generally available by SSUI through its
published spare parts lists for the Component, or (ii) which are unique and not
readily available from third party sources. SSUI may change the prices for spare
parts at any time during such five (5) year period upon ninety (90) days prior
notice to Buyer. Notwithstanding
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the foregoing, SSUI will give Buyer prior written notice of the discontinuance
of the Component and the withdrawal of any spare part from SSUI's published list
of generally available spare parts, and Buyer shall have the opportunity to make
a final purchase of such spare part.
B. Buyer shall purchase a stock of spare parts adequate for Buyer to
maintain a reasonable level of service of the Equipment. In this regard, Buyer
and SSUI shall jointly determine an appropriate initial inventory of spare parts
to be stocked by or on behalf of Buyer utilizing generally as the basis for such
determination the SSUI estimates previously furnished Buyer.
C. During the period that Buyer may place orders for spare parts
hereunder, Buyer may also order the retaining shaft and retaining pin, and SSUI
may change the prices for such items at any time on ninety (90) days prior
notice.
7. Inspection and Warranty
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A. The Equipment shall have been inspected and where applicable
tested prior to shipment to determine if the same conforms to the relevant
specifications and Copyer's reference manuals and other technical information it
has published. Buyer shall also have the right to conduct its own inspection
test of the Equipment within thirty (30) days after the date of delivery. If
Buyer determines that the items do not substantially so conform, it shall,
within fifteen (15) days after completion of the inspection, notify SSUI and
request SSUI to institute a consulting inspection. Even if the ensuing
inspection results in a disagreement as to the conformity of the item(s), SSUI
shall use its best efforts to achieve the required conformation at the least
possible expense. If such effort does not yield a result satisfactory to Buyer
and Buyer exercises its right of rejection SSUI has the right to repair or
replace, at SSUI's option, rejected Equipment at no charge (including
transportation charge) within thirty (30) days after SSUI's receipt of Buyer's
fifteen (15) day notice. Should it be subsequently determined that Buyer has
wrongfully rejected such item(s), Buyer shall be liable to SSUI for all expenses
incurred. Upon shipment to Buyer, Equipment must be paid for within the time
frames provided in this Agreement, even if thereafter rejected by Buyer for
nonconformance under the circumstances set forth herein.
In the event that SSUI does not replace rejected Equipment within
the time frame specified above, SSUI shall grant Buyer a credit in an amount
equal to the invoice price of the rejected item against future payments to be
made by Buyer for Equipment hereunder. Such credit shall be reversed and
invoiced when the replacement is effected.
B. THE EQUIPMENT SOLD TO BUYER HEREUNDER IS SOLD "AS IS" AND WITHOUT
ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING
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ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
RELATING TO THE USE OR PERFORMANCE OF THE EQUIPMENT. SSUI WILL NOT BE LIABLE
FOR PERSONAL INJURY OR PROPERTY DAMAGE (UNLESS CAUSED BY SSUI'S NEGLIGENCE),
LOSS OF PROFIT OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT
OF THE USE OR INABILITY TO USE THE EQUIPMENT, OR FOR ANY DAMAGES (REGARDLESS OF
THEIR NATURE) TO THE EXTENT CAUSED BY BUYER'S FAILURE TO FULFILL ITS
RESPONSIBILITIES AS SET FORTH IN THIS AGREEMENT. IN NO EVENT SHALL SSUI'S
LIABILITY HEREUNDER EXCEED THE STATED SELLING PRICE OF THE EQUIPMENT TO BUYER.
C. Buyer acknowledges that (i) SSUI has made no representations
regarding software programming, and the design and implementation thereof, and
shall have no liability for use or performance of any such programming or the
Equipment in connection with the systems of Buyer's customers, even though Buyer
discusses the same from time to time with SSUI employees, and (ii) payment for
the Equipment is an independent obligation of Buyer and is not contingent on or
dependent upon the services and performance of independent vendors of other
components or software.
D. SSUI shall make available to Buyer on such terms as are generally
offered to SSUI's other customers for the Equipment, any modification kits,
retrofits or other assistance being furnished by SSUI to assist such customers
in correcting epidemic failures in the Equipment or in complying with federal
and state laws applicable to the Equipment, it being understood that any such
kits or retrofits shall be furnished without charge if made available generally
by SSUI to comply with mandatory health or safety laws applicable to the
Equipment.
E. IT IS UNDERSTOOD AND AGREED THAT UPON SELLING OR LEASING THE INK
JET PLOTTER THAT CONTAINS THE EQUIPMENT BUYER SHALL DELIVER ITS OWN WARRANTY TO
ITS CUSTOMERS.
8. Relationship of the Parties, Indemnification and Limitation of Liability
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A. Nothing contained in this Agreement shall be construed to make
either party the agent for the other party for any purpose, and neither party
hereto shall have any right whatsoever to incur any liabilities or obligations
on behalf of or binding upon the other party. Each party specifically agrees
that it shall have no power or authority to represent the other party in any
manner; that it will act as an independent contractor in accordance with the
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terms and conditions of this Agreement; and that it will not at any time
represent orally or in writing to any person or corporation or other business
entity that it has any right, power or authority not expressly granted by this
Agreement.
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B. Buyer agrees to indemnify and hold SSUI and Copyer free and
harmless from any loss, damage or costs, including legal expenses and counsel
fees, that SSUI or Copyer becomes liable for to third parties by reason of acts,
or failure to act of Buyer in marketing and servicing the Equipment, including,
but not limited to (a) warranties made by Buyer's personnel or agents regarding
such ink jet plotters or the Equipment contained therein, or the use or
performance of the same in connection with any other components or software
programming, and (b) improper installation, support or maintenance of the ink
jet plotters containing the Equipment.
9. Patent and Indemnification
--------------------------
Nothing herein contained shall be construed as a representation or
warranty by SSUI or Copyer that the Equipment furnished hereunder is or will be
free from infringement or violation of any patent, copyright, trade secret or
any other proprietary right of any third party. In the event of any claim by a
third party against Buyer asserting a patent, copyright, trade secret or other
proprietary right, infringement involving the Equipment in any country of the
world (except those countries under Russian or Chinese control and such other
countries as may be mutually agreed upon in writing by the parties hereto from
time to time), SSUI will, at its expense, defend and/or settle such claim, and
will indemnify Buyer against any damages, judgments or settlements, including
any reasonable cost, legal fees or other expenses required for such defense,
whether or not such claim is successful, provided, however that Buyer shall
promptly notify SSUI in writing of such claim and shall furnish copies of all
letters and other documents relating to the allegation of infringement, and SSUI
shall be given full and sole authority to defend and settle such claim, action
or allegation of infringement. If SSUI requests, Buyer agrees to assist and/or
cooperate at SSUI's expense with SSUI in such defense and/or settlement.
Anything herein to the contrary notwithstanding, SSUI shall not be obligated to
defend or settle or be liable for costs, fees, expenses or damages if the
infringement claim arises from the Engine Controller or out of compliance with
Buyer's specifications, designs, drawings, instructions or other requirements or
out of any addition to or modification of the Equipment of any combination
thereof with other products after delivery by SSUI or from use of the Equipment
in the practice of a process or system, or from use of the spare parts other
than in connection with the Components, in any of which cases Buyer shall assume
the defense and/or settlement thereof and pay all costs, fees, expenses,
damages, judgments or settlements incurred by SSUI or Copyer. If any
infringement claim is brought against Buyer and/or SSUI, or Copyer, or if in
SSUI's opinion the Equipment is likely to become a subject of a claim of
infringement or violation of any patent, copyright, trade secret or other
proprietary right of any third party, SSUI shall be entitled at its option: (a)
to procure for Buyer the right to continue the sale
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and/or use of the Equipment at SSUI's expense, by acquiring a license in the
name of SSUI or one of the SSUI's affiliated companies, or of Buyer, (b) to
replace or modify the Equipment so as not to infringe such third party's rights
while conforming, as closely as possible to original specifications, and in the
event that either solution is adopted, SSUI shall be entitled to request a
mutually agreeable price modification, or (c) to discontinue further supply of
the Equipment in spite of any provisions hereof and without any breach hereof,
but prior to SSUI choosing such discontinuance, SSUI agrees to enter into
discussions with Buyer in good faith to determine whether a mutually acceptable
arrangement (including price and other terms and conditions) for continuing the
supply of the Equipment to Buyer can be agreed upon between the parties. In the
event of such discontinuance, SSUI shall refund to Buyer the purchase price of
units of infringing Equipment which are promptly returned to SSUI from Buyer's
inventory in new condition and in unopened boxes. THE FOREGOING STATES THE
ENTIRE LIABILITY OF SSUI, COPYER AND BUYER IN RESPECT OF INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER PROPRIETARY RIGHT OF ANY THIRD
PARTY AND IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD THERETO,
AND IN NO EVENT SHALL SSUI, COPYER OR BUYER BE LIABLE FOR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF
ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS.
10. Disclaimer of License
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Buyer acknowledges that any and all of the patents, designs,
trademarks, copyrights, and other rights including any unpatented confidential
production method used or embodied in connection with the Equipment will remain
the sole property of SSUI or Copyer, as the case may be. Except as shall be
necessary to carry out the express provisions of this Agreement, nothing herein
shall be construed as granting or conferring to Buyer any rights by license or
otherwise, expressly, impliedly or otherwise, for such patents, designs,
trademarks, copyrights or other rights, including any unpatented production
method.
11. Force Majeure
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Neither SSUI or Buyer shall be in default on any obligation
hereunder if such default results from governmental acts or directives (official
or unofficial); strikes (legal or illegal); acts of God; war (declared or
undeclared); insurrection, riot or civil commotion; fires; flooding or water
damage; explosions; embargoes; or otherwise arises out of causes beyond the
reasonable control of the party affected. Upon the occurrence of a force majeure
event, the affected party shall give written notice thereof to the other party
as soon as is practicable, and the
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affected party shall take reasonable action to minimize the effect of such force
majeure event.
12. Compliance with Applicable Laws
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A. Nothing herein shall be construed to permit or require either
party to do any act or thing in contravention of any laws or regulations
applicable to the production or distribution of the Equipment (including those
of the United States or of any agency or instrumentality of the United States or
any of the various states). SSUI and Buyer mutually agree to do all things
reasonably necessary in order to enable both or either of them to comply with
all such laws and regulations.
B. Without limiting the foregoing, SSUI's obligations hereunder shall
at all times be subject to the respective export and import control laws and
regulations of the Japanese and United States Governments. Buyer agrees that
with respect to the resale or other disposition of the Equipment, Buyer shall
comply fully with the customs and import control laws and regulations of the
Untied States.
13. Non-Disclosure of Information; Publicity
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A. Neither party desires to receive any confidential information from
the other party and, accordingly, with respect to any information provided under
this Agreement, neither party shall have any confidential obligation or use
restriction and either party may freely use such information for any purpose
without restriction. To the extent either party determines that there is a need
to disclose information deemed confidential, such information shall be
specifically identified and protected under the terms of a separate non-
disclosure agreement signed by both parties.
B. Except as may be required by Federal, State or Japanese law,
neither Buyer nor SSUI shall release items of publicity of any kind (including,
but not limited to, news releases, articles, brochures, reports, advertising and
prepared speeches) related to the other party's involvement in the Equipment to
be delivered hereunder, unless either party shall have first obtained written
approval from the other party.
14. Term; Termination
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A. This Agreement shall commence on the date hereof and shall
continue in full force and effect for a period of three (3) years. It shall
automatically renew thereafter on a year-to-year basis unless terminated by
either party upon at least sixty (60) days notice prior to the end of the
initial or any renewal term.
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B. Without limiting any of the remedies which the non-breaching party may
have, this Agreement and/or any Orders outstanding hereunder may be terminated
by either party for substantial breach of any material provision of this
Agreement by the other party, provided that written notice has been given to the
other party of the alleged breach and the other party has not cured the breach
within thirty (30) days after delivery of such notice, or has not in good faith
made substantial effort and progress in curing the breach during such period
while notifying the other party within the thirty (30) day period of the fact
that the breach will not be cured, the steps taken and the estimated cure date
for the breach. If, even with good faith efforts, the breach continues for a
period of sixty (60) days after notice, the other party may terminate this
Agreement and/or any Orders outstanding hereunder upon five (5) days notice.
C. This Agreement and any Orders outstanding hereunder shall be terminated
automatically and without notice, if either party ceases to function as a going
concern, becomes insolvent, makes an assignment for the benefit of creditors,
files a petition in bankruptcy, has a petition filed against it and such
petition continues for more than sixty (60) days without dismissal, or admits in
writing its inability to pay its debts as they mature or if a receiver is
appointed for a substantial part of its assets.
D. This Agreement and/or any Orders outstanding hereunder may be
terminated by SSUI on notice to Buyer if Buyer no longer engages in the plotter
business substantially as engaged in by Buyer as of the date hereof, if Buyer
sells or otherwise transfers all or substantially all of its plotter business
and assets or if, whether by merger, sale of stock or otherwise, Lockheed
Corporation no longer owns, directly or indirectly, 50% or more of the capital
stock of Buyer. Buyer shall give SSUI advance notice prior to the occurrence of
any of such proposed events and SSUI's right to terminate under this
subparagraph D may be exercised by SSUI no later than sixty (60) days
thereafter.
E. Termination shall not relieve either party of obligations incurred
prior thereto (including Buyer's obligation to pay the purchase price of
Equipment theretofore shipped to Buyer), or for any obligation which by its
terms is to take effect upon termination.
F. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR FOR THE OTHER PARTY'S LOST PROFITS RESULTING IN ANY WAY
FROM THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED FOR IN
RESPECT OF EACH PARTY'S INDEMNIFICATION OF THE OTHER UNDER THIS AGREEMENT.
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15. Assignment
----------
This Agreement constitutes a personal contract and is not assignable by
either party in whole or in part without the other party's written consent.
16. Notices
-------
All notices required or permitted to be sent by the terms of this
Agreement shall be either sent registered or certified mail, return receipt
requested, via facsimile or served personally to the attention of (a) the
President of SSUI; or (b) to each of Vice President, Manufacturing and Corporate
Secretary of Buyer, at their respective addresses on the first page of this
Agreement. All notices shall be deemed effective upon receipt.
17. Governing Law
-------------
A. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.
B. This agreement constitutes the entire agreement between the
parties, superseding all previous proposals or understandings, oral or written,
relating to the supply of the Equipment to Buyer. No representation or statement
not contained on the original copy of this Agreement shall be binding on SSUI or
Buyer as a warranty or otherwise, nor shall this Agreement be modified or
amended unless in writing and signed by the President of each of SSUI and Buyer.
Any suit between the parties relating to this Agreement, other than for payment
of the purchase price of the Equipment, shall be commenced, if at all, within
one (1) year of the date that it accrues.
-14-
C. If any one or more of the provisions contained in this Agreement or in
any Schedule or Exhibit hereto shall be invalid, illegal or unenforceable in any
respect under any applicable law, the validity, legality and enforceability of
the remaining provisions contained herein or therein shall not in any way be
affected or impaired.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first above written.
SELEX SYSTEMS U.S.A., INC. CALCOMP INC.
By: /s/ A. Nakazato By: /s/ Xxxx X. Xxxx
------------------------- -------------------------
Name: A. Nakazato Name: Xxxx X. Xxxx
Title: President Title: President
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EXHIBIT A
List of Equipment and Specifications
Copyer Item # CalComp Item # Item Name Min. Order Quantity
------------- -------------- --------- -------------------
------------ 22049-0015 Mini Engine 40 sets
000-0000-000 00000-0000 BJ Ink Cartridge 1 pallet (1,440 pcs.)
000-0000-000 22049-3050 Carriage Retaining Shaft 2,000 pcs.
000-0000-000 00000-0000 Retaining Pin 2,000 pcs.
