IBM Printing Systems Company
Product Purchase Agreement
Index
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1.0 Definitions ..............................................................6
1.1 Customer ........................................................6
1.2 Custom Material .................................................6
1.3 Defect ..........................................................6
1.4 End User ........................................................6
1.5 End User Documentation ..........................................6
1.6 Engineering Change ..............................................6
1.7 Epidemic Failure ................................................6
1.8 General Availability ............................................7
1.9 Invention .......................................................7
1.10 Options & Features ..............................................7
1.11 Printer Engines .................................................7
1.12 Product or Products .............................................7
1.13 Printer Specifications ..........................................7
1.14 Requisite Documentation .........................................7
1.15 Service Documentation ...........................................7
1.16 Spare Part or Spare Parts .......................................8
1.17 Supply or Supplies ..............................................8
2.0 Agreement Period .........................................................8
2.1 Term .............................................................8
2.2 Agreement Extensions .............................................8
3.0 Prices....................................................................8
3.1 Competitive Prices ...............................................8
3.2 Pricing Assumptions ..............................................8
3.3 Printers, Options and Features ...................................9
3.4 Spare Parts ......................................................9
3.5 Supplies .........................................................9
3.6 Taxes ...........................................................10
3.7 Most Favored Customer ...........................................10
4.0 Order Logistics..........................................................10
4.1 Forecasts .......................................................10
4.2 Orders ..........................................................11
4.3 Order Acceptance ................................................11
4.4 Order Changes ...................................................12
4.5 Cancellation ....................................................13
5.0 Packaging, Shipment and Delivery ........................................13
5.1 Packaging .......................................................13
5.2 Delivery ........................................................13
5.3 Title and Risk of Loss ..........................................13
5.4 Liens, Claims and Encumbrances ..................................13
5.5 Transportation ..................................................13
6.0 Inspection and Acceptance ...............................................14
6.1 Inspection ......................................................14
6.2 Rejection of Non-Conforming Products ............................14
6.3 Effect or Rejection .............................................14
6.4 Effect of Payment ...............................................14
7.0 Payment..................................................................14
7.1 Invoicing Procedures ............................................14
7.2 Terms of Payment ................................................14
8.0 Product Changes .........................................................15
8.1 Seller Initiated Changes ........................................15
8.2 Buyer Initiated Changes .........................................15
8.3 Mandatory Changes ...............................................15
8.4 Product Enhancements ............................................16
8.5 New Products ....................................................16
9.0 Quality Assurance........................................................16
9.1 Quality Process .................................................16
9.2 ISO 9002 ........................................................16
10.0 Warranty and Representations ...........................................16
10.1 Product Warranty ...............................................16
10.2 Harmful Code Warranty ..........................................17
10.3 Claim Warranty .................................................17
10.4 License Warranty ...............................................17
10.5 Remedies for Breach of Warranty ................................17
10.6 Epidemic Failures ..............................................18
10.7 Limitation of Liability ........................................18
11.0 Indemnification ........................................................18
11.1 Patent, Copyright, Mask Work, and Trademark Indemnification ....18
11.2 Seller's Product and Other Indemnification .....................19
11.3 Buyer's Indemnification ........................................19
12.0 Product Support ........................................................19
12.1 End User Documentation and Service Documentation ...............19
12.2 Training .......................................................20
12.3 Technical Support ..............................................20
13.0 Continuity of Supply ...................................................20
13.1 Current Products, Spare Parts and Supplies .....................20
13.2 Provision For Spare Parts and Supplies After Termination .......21
13.3 Force Majeure ..................................................21
14.0 Intellectual Property...................................................21
14.1 License of Software and Internal Code ..........................21
14.2 License of Patents and Appearance Designs ......................21
14.3 Ownership of Appearance Designs ................................22
14.4 Rights in Data .................................................22
14.5 Trademarks .....................................................22
14.6 Invention Disclosure ...........................................23
14.7 Invention Rights ...............................................23
14.8 Patent and Copyright Clearance Investigatio.....................23
15.0 Confidential Information ...............................................24
15.1 Handling of Confidential Information ...........................24
16.0 Termination.............................................................24
16.1 Material Breach ................................................24
16.2 Insolvency .....................................................24
17.0 General.................................................................25
17.1 Authority......................................................25
17.2 Compliance with Laws...........................................25
17.3 Limitation of Actions .........................................25
17.4 Waiver ........................................................25
17.5 Assignment ....................................................25
17.6 Entire Agreement ..............................................25
17.7 Independent Contractors .......................................25
17.8 Lost Profits/Consequential Damages ............................25
17.9 Notices .......................................................26
17.10 Modifications .................................................27
17.11 Severability ..................................................27
17.12 Controlling Law ...............................................27
17.13 Forum .........................................................27
17.14 Waiver of Jury Trial ..........................................27
17.15 Survival ......................................................27
17.16 Order of Precedence ...........................................27
17.17 Headings ......................................................27
17.18 Publicity .....................................................27
17.19 No Minimum Commitment .........................................28
AGREEMENT
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This Agreement ("Agreement") is entered into this (date) day of (month), (year)
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("Commencement Date") between International Business Machines Corporation, a New
York corporation with its principal office at Xxx Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx
00000 ("Buyer") and Accent Color Sciences, Inc., a Connecticut corporation,
having an office at 00 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000
("Seller").
Buyer agrees to purchase from Seller and Seller agrees to sell to Buyer the
Products in accordance with the terms and conditions of this Agreement,
including its Attachments.
1.0 DEFINITIONS
1.1 "Customer" shall mean a person or other entity that acquires Products from
Buyer for resale to End Users.
1.2 "Custom Material" shall mean any software, firmware, hardware or document-
ation modifications or enhancements made by Seller in response to Buyer
initiated Engineering Changes.
1.3 "Defect" shall mean a condition that prevents a Product form operating in
accordance with its specification.
1.4 "End User" shall mean a person or other entity that acquires Products from
Buyer or its resellers for its own use.
1.5 "End User Documentation" shall mean the manuals, literature, or documents
and any updates thereto used by the End User in the operation of the
Product. The End User Documentation subject to this Agreement is
specified in Attachment 5.
1.6 "Engineering Change" shall mean any mechanical, electrical, electro-
mechanical, chemical, microcode, material, process, specification or
documentation change which, if made to the Products to be delivered
hereunder, would affect the performance, function, reliability,
availability,
serviceability, appearance, manufacturability, dimensions, tolerances,
safety, testing or price of the Products.
1.7 Epidemic Failure" shall mean [*]
1.8 "General Availability" shall mean the date following announcement on which
printing systems which contain a Printer Engine are available for shipment
to End Users.
1.9 "Invention" shall mean any idea, design, concept, technique, invention,
discovery or improvement, whether or not patentable, that is (a)
incorporated in the Custom Materials, whether or not made solely by Seller
or one or more Seller employees or made jointly by Seller and/or Seller's
employees with Buyer or one or more employees of Buyer or (b) not
incorporated in the Custom Materials, but made jointly by Seller and/or
Seller's employees with one or more employees of Buyer, during the term in
the performance of this Agreement.
1.10 "Options and Features" shall mean incremental items not generally included
in the base configuration. The Options and Features subject to this
Agreement are listed in Attachment 1.
1.11 "Printer Engines" shall mean the printing systems to which Buyer's
controllers and other items are added to derive a full system printer. The
Printer Engines subject to this Agreement are listed in Attachment 1.
1.12 "Product" or "Products" shall mean all items acquired by Buyer from Seller
under this Agreement.
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
1.13 "Printer Specifications" shall mean the specifications set forth in
Attachment 3.
1.14 "Requisite Documentation" shall mean [*].
1.15 "Service Documentation" shall mean the manuals, literature, hard and
softcopy documentation used to maintain the Products and any updates
thereto. The Service Documentation subject to this Agreement is listed in
Attachment 5.
1.16 "Spare Part" or "Spare Parts" shall mean any repair or replacement parts
used in the maintenance of Products. Spare Parts subject to this Agreement
are listed in Attachment 8.
1.17 "Supply" or "Supplies" shall mean any customer replaceable items consumed
during the operation of the Product. Supplies subject to this Agreement
are listed in Attachment I.
2.0 AGREEMENT PERIOD
2.1 TERM. This Agreement shall begin on the Commencement Date and shall
continue in effect for three (3) years.
2.2 AGREEMENT EXTENSIONS. Buyer will have the option to renew this Agreement
for two (2) additional one (1) year terms, Thereafter, this
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
Agreement can be extended for additional one (1) year terms, only by mutual
written consent of the parties.
3.0 PRICES
3.1 COMPETITIVE PRICES. [*]
3.2 PRICING ASSUMPTIONS. Unless otherwise noted, prices shall include the
costs associated with packaging the Products in accordance with the
packaging specifications set forth in Attachment 2. Except as provided in
Sections 3.5 and 3.8, all prices shall remain firm for the term of this
Agreement.
3.3 PRINTER ENGINES, OPTIONS & FEATURES. Prices for the Printer Engines,
Options and Features are set forth in Attachment 1.
3.4 SPARE PARTS. Prices for the Spare Parts are set forth in Attachment 8.
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
[*]
3.5 SUPPLIES. [*]
Buyer agrees to purchase its Supply needs from Seller for one year from the date
of General Availability of a Product and for as long thereafter as Seller's
prices for the Supplies in question remains competitive. [*]
[*] OMMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST.
[*]
3.6 TAXES. All prices for Products, Spare Parts, and Supplies are exclusive of
federal, state and local excise, sales, value added, use and similar taxes.
Buyer shall be responsible for the payment of all such taxes, except those
taxes imposed on the Products prior to delivery to the carrier and taxes
based on Seller's net income. Buyer hereby certifies that it holds a valid
Reseller's exemption certificate in each applicable taxing jurisdiction for
Products purchased for resale. Seller shall, where the law permits, treat
Buyer as exempt from state and/or local sales tax for Products purchased
hereunder. Where required by state or local law, Buyer shall provide
Seller with a valid reseller's exemption certificate for each taxing
jurisdiction to which Seller will ship Products.
3.7 MOST FAVORED CUSTOMER. [*]
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
[*]
4.0 ORDER LOGISTICS
4.1 FORECASTS. Prior to the twenty fifth (25th) calendar day of each month, for
the term of this Agreement and for the terms of all extensions thereof,
Buyer shall supply to Seller a forecast of its anticipated requirements for
Products to be delivered in the next twelve (12) consecutive months. For
those months for which a purchase order has been submitted, a forecast is
not required. Only designated Spare Parts will require a forecast. Those
Spare
Parts requiring a forecast will be designated in Attachment 8. Such
forecasts shall be used by Seller for planning purposes only and shall not
be construed as a purchase commitment.
4.2 ORDERS. Purchase orders shall serve as Buyer's only commitment to
purchase. All purchase orders shall reference this Agreement, and include
the following:
a) the Products being purchased,
b) the quantity requested,
c) the price,
d) the delivery location(s),
e) the requested delivery dates, and
f) the carrier and mode of transportation.
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST.
Purchase orders shall be submitted by the twenty fifth (25/th/) calendar day of
each month. The lead time period shall be the period of time between submission
of a purchase order for the delivery of finished units is described in the Table
I below:
Printer Engine Lead Time - Table I
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Lead Time Period Time Period
---------------- -----------
6 months 2/l/96 to 9/30/96
4 months 10/l/96 and beyond
The lead time period for purchase of Spare Parts will be three (3) months. The
lead time period for purchase of Supplies will be three (3) months for standard
ink colors. For special or other non-standard colors, the lead time period will
be targeted at three (3) months and Seller will use its best efforts to reach a
three (3) month lead time for special, non-standard ink colors. The parties
will meet in 1997 to finalize a plan to reach the three (3) month lead time for
special, non-standard ink colors and also address reducing the lead times for
Printer Engines and standard ink colors.
All purchase orders hereunder shall be issued solely pursuant to the terms and
conditions of this Agreement, notwithstanding any preprinted terms and
conditions on an order or terms and conditions attached to order acceptance.
4.3 ORDER ACCEPTANCE. Seller shall provide Buyer with a written or electronic
notice of acceptance or rejection of a purchase order no later than seven
(7) calendar days after receipt of the order. Any purchase order to which
Seller fails to respond within such seven (7) calendar days shall be deemed
to have been accepted by Seller. Any rejection shall include the reasons
for rejection. Seller may reject a purchase order only if it fails to
comply with the forecast, except as permitted herein, and other terms and
conditions of this Agreement.
4.4 ORDER CHANGES. Buyer may make quantity adjustments to purchase orders
in accordance with Table II below:
Finished Units Quantity Change - Table III
------------------------------------------
Lead Time Period Days prior to delivery Quantity Change
---------------- ---------------------- ---------------
[*]
[*]
For those Spare Parts requiring a forecast, a quantity change can be made in
accordance with Table III below:
Spare Parts Quantity Change - Table III
---------------------------------------
Lead Time Period Days prior to delivery Quantity Change
---------------- ---------------------- ---------------
[*]
For supplies, a quantity change can be made in accordance with Table IV. below:
Supplies Quantity Changes - Table IV
------------------------------------
Lead Time Period Days prior to deliver Quantity Change
---------------- --------------------- ---------------
[*]
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST.
Seller will give Buyer the option to change high voltage print engines to low
voltage print engines and low voltage print engines to high voltage print
engines during the Seller's manufacturing process. The specific process for
accomplishing these changes in print engine voltage capability shall be mutually
agreed to by Buyer and Seller.
4.5 CANCELLATION. IBM may cancel purchase orders or portions thereof upon
written notice to ACS at any time. ACS shall take all steps to mitigate any
loss to IBM arising from such cancellation and in no event shall IBM's
obligations to ACS as a consequence of cancellation exceed the purchase
price of the Products ordered. Further, IBM shall not be liable to ACS for
any ACS lost profits. If ACS claims cancellation cost resulting from IBM's
Purchase Order cancellation and requests IBM to pay such cancellation cost,
AC S shall have the burden of proof to substantiate the cancellation cost
amount claimed. If requested by IBM, ACS shall agree to an independent
certified accountant (or other independent party appointed jointly by both
parties) review within a reasonable time after cancellation of ACS' business
records for the purpose of validating ACS' cancellation claim. Provided,
however, that IBM may not cancel any orders for Products without cause later
than thirty (30) days prior to the scheduled delivery date. Any payments
made by IBM by down payment or on account of an of an order which is later
canceled without cause shall be credited against any cancellation charges
payable by IBM hereunder.
5.0 PACKAGING, SHIPMENT AND DELIVERY
5.1 PACKAGING. Seller shall, at its expense, package Products for shipment in
accordance with the packaging specifications set forth in Attachment 2.
5.2 DELIVERY. Delivery of Products shall be F.O.B. Seller's location at
00 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx.
5.3 TITLE AND RISK OF LOSS. Title to Products and all risk of loss shall pass
to Buyer upon delivery.
5.4 LIENS, CLAIMS AND ENCUMBRANCES. All Products shall be free and clear of
all liens, claims and encumbrances.
5.5 TRANSPORTATION. The carrier and mode of transportation shall be selected
by the Buyer.
6.0 INSPECTION AND ACCEPTANCE
6.1 INSPECTION. Products delivered by Seller shall be subject to inspection by
Buyer at any time prior to acceptance to an End User to determine whether
such Products are in compliance with the Specifications and free from
defects in material or workmanship.
6.2 REJECTION OF NON-CONFORMING PRODUCTS. Buyer, in writing, may reject any
Product that is. not in compliance with the Product Specifications or that
is not free from defects in material or workmanship.
6.3 EFFECT OF REJECTION. Any nonconforming Product that has been rejected by
Buyer can, at Buyer's option after consultation with Seller:
a) be returned to Seller for repair, replacement or a refund of the
original purchase price, freight collect, or
b) be repaired by Seller at Buyer's designated facility, or
c) be repaired by Buyer at Seller's expense.
6.4 EFFECT OF PAYMENT. Payment by Buyer shall not constitute acceptance of the
Products or impair Buyer's remedies for non-conformance.
7.0 PAYMENT
7.1 INVOICING PROCEDURES. Seller shall issue individual invoices to Buyer for
each shipment no earlier than the delivery date of the Products.
7.2 TERMS OF PAYMENT. Buyer shall pay Seller in full in U.S. dollars for
Products it purchases within thirty (30) days of receipt of Seller's
invoice therefor.
[*]
8.0 PRODUCT CHANGES
8.1 SELLER INITIATED CHANGES. Seller shall provide Buyer with the earliest
possible notice and a written evaluation of the anticipated effect of any
Seller initiated Engineering Change. Seller shall not make an Engineering
Change to the Products without Buyer's prior written consent. Buyer's
consent alone to a Seller initiated change will not convert any such change
into Custom Materials. A Seller initiated change may require that the
Product Specifications be updated.
8.2 BUYER INITIATED CHANGES. Buyer may propose Engineering Changes to the
Products by providing Seller with written notification. Seller agrees to
respond to Buyer's request in writing within thirty (30) days of receipt of
such notification. Seller's response ("Response") shall include an
evaluation of the impact of the proposed Engineering Changes on the price,
Specification and delivery schedule of the Products. Seller's Response
shall further include any one-time costs associated with the proposed
Engineering Changes, and revised Specifications for the affected Products
reflecting changes in its or their performance, failure rates, maintenance
requirements and useful life. If Buyer makes a written acceptance of
Seller's Response for implementing the proposed Engineering Changes, Seller
shall incorporate
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
them into the Products upon the terms set forth in Seller's Response. In
this event, the Specifications shall be deemed amended by the Specification
changes included with Seller's Response.
If Buyer makes a counter proposal to Seller's Response instead of accepting it
as written, Seller agrees to respond thereto in writing within thirty (30) days
after receipt of such counter proposal. Seller's Response to Buyer's counter
proposal and Buyer's acceptance thereof shall be made in accordance with the
preceding paragraph as though they were, respectively, an initial Response and
acceptance thereof.
8.3 MANDATORY CHANGES. In the event an Engineering Change is required in order
for the Products to satisfy governmental standards, including safety and
environmental laws and regulations, avoid intellectual property infringement
or comply with the Specifications, Seller shall issue a mandatory
Engineering Change upon reasonable written notification to Buyer. Seller
shall also provide the required parts, materials, documentation, detailed
installation instructions and any special tools, equipment, or media to
Buyer at no charge and shall reimburse Buyer for the expenses it incurs in
implementing the mandatory Engineering Change. A mandatory change may
require that the Product Specifications be updated to refer to the new
governmental standards.
In the event that a mandatory change under this Section 8.3 is made retroactive,
the parties shall negotiate the extent to which each of them bears the cost of
field replacement or retrofit to meet the new or modified standard.
8.4 PRODUCT ENHANCEMENTS. If during the term of this Agreement Seller offers
any improvement, additional function, or other enhancement to any Product to
another party, Seller shall offer such improvement, additional function or
other enhancement to Buyer under substantially the same terms and
conditions, including price.
8.5 NEW PRODUCTS. If during the term of this Agreement Seller develops any new
or successor product which may reasonably be considered as a functional
replacement for the Products, such new or successor products shall be
included in this Agreement at a mutually agreed upon price and shall be
considered "Products" for the purposes of this Agreement.
9.0 QUALITY ASSURANCE
9.1 QUALITY PROCESS. Seller shall maintain a quality assurance program and
adhere to the quality inspection and acceptance testing procedures
described in Attachment 4.
Seller shall subject all Products to the quality inspection testing procedures
prior to delivery to Buyer.
Buyer shall have the right to make periodic on-site audits to ensure Seller's
compliance with its quality assurance program and quality inspection procedures.
Seller shall provide Buyer with access to its quality inspection testing results
upon request.
9.2 ISO 9002. Seller shall diligently pursue ISO 9002 certification and
maintain such certification, if it is acquired during the term of this
Agreement or any extensions thereof, for the duration of this Agreement and
any extensions thereof
10.0 WARRANTIES AND REPRESENTATIONS
10.1 PRODUCT WARRANTY. Seller warrants that title to all Products delivered to
Buyer under this Agreement will be free and clear of all liens,
encumbrances, security interests or other claims. Seller also warrants
that the Products will be free of defects in design, material and
workmanship and, if operated in accordance with the applicable
Specifications, will conform to the Product Specifications for ninety (90)
days following installation of the Products at an End User's location. The
warranty with respect to Spare Parts and Supplies shall be the lesser of
ninety (90) days following installation thereof or [*] following delivery
from Seller. Buyer's inspection or acceptance of, or payment for, any
Products shall not constitute a waiver of any breach of warranty. The
procedure to be followed by Buyer and Seller in the event Buyer needs to
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
return Products under this warranty is set forth in Attachment II of this
Agreement.
10.2 HARMFUL CODE WARRANTY. In the event that any of the Products are software
or include software of any type, Seller represents and warrants that each
such Product does not contain any code, programming instruction or set of
instructions that is intentionally constructed to damage, interfere with or
otherwise adversely affect operation of that Product or other computer
programming code, data files, or hardware without the consent and intent of
the Product user. Seller shall establish and enforce procedures, which
shall be reviewed with Buyer, and at Buyer's request, to prevent any such
code, programming instruction or set of instructions from being
incorporated into a Product and shall promptly notify Buyer of any
knowledge or suspicion that any such harmful code, programming instruction
or set of instructions has been incorporated into a Product.
10.3 CLAIM WARRANTY. Seller hereby represents and warrants that it has not
received and knows of no claim made or proceeding brought by a third party
on the basis that any Product, End User Documentation or Service
Documentation infringes or utilizes a patent, copyright, mask work, trade
secret or trademark of a third party and that no patent, copyright, mask
work, trade secret or trademark of a third party has been used without
permission to manufacture or complete such Product, End User Documentation
or Service Documentation or has been incorporated therein without
permission.
10.4 LICENSE WARRANTY. Seller hereby represents and warrants that it has the
full power and right to grant to Buyer each of the licenses set forth in
Section 14 of this Agreement.
10.5 REMEDUES FOR BREACH OF WARRANTY. In the event of a breach of the warranty
set forth in Section IO. 1, the nonconforming Products shall be remedied in
accordance with any of the following options as mutually agreed upon by
Buyer and Seller:
a) the nonconforming Products or any parts thereof shall be returned to
Seller for repair, replacement, or a refund or credit in the amount of the
original purchase price, freight collect;
b) Seller shall make the necessary repairs at Buyer's designated
facility,
c) Buyer shall make the necessary repairs, with Seller furnishing the
necessary parts and reimbursing Buyer for its cost of labor at Buyer's then
current labor rates, or
d) Seller shall refund the Spare Parts or Supplies equivalent price to
the Buyer for all parts replaced during the warranty period and Buyer shall
scrap the replaced parts.
In the event of a breach of the warranties set forth in Section 10.2, the
Buyer's remedies shall be as follows:
e) Seller shall repair or correct by substitution of code and media at
Seller's expense all copies of code included in Products received by
Buyer and in Buyer's possession which have been adversely affected by
harmful code;
f) Seller shall repair or correct by substitution of code and media at
Seller's expense all copies of code included in Products received by Buyer
and in the possession of Buyer's Customers or End Users, which Products
have been adversely affected by harmful code; and
g) Subject to the limitations of Section 17.8, Seller shall, at its own
expense, indemnify, defend and hold harmless Buyer, its Subsidiaries, its
and their successors and assigns, officers, employees, agents, End Users
and resellers from and against all damages, costs or expenses incurred as a
result of any claim that a Product, Spare Part and/or Supply, including
harmful code set forth in Section 10.2 hereof Buyer shall promptly notify
Seller of any such claim and cooperate fully with Seller. Seller shall
have control of the defense against such claim, except that Buyer shall
have the right to retain counsel for purposes of bringing a claim under
this Agreement or to
participate in the defense or settlement thereof if such claim is brought
by a third party.
If a claim is made under Section 10.2 for damages arising from harmful software
code, Seller shall not be obligated to perform any of the remedies listed above
if the claim resulted, directly or indirectly, from a modification of or
addition to the code by someone other than ACS' employees or agents.
10.6 EPIDEMIC FAILURES. In the event of an Epidemic Failure, Seller shall at
its expense repair the defective Products, replace the defective Products
or reimburse Buyer for the costs it incurs correcting the defect. Any
Products returned to Seller shall be returned freight collect.
10.7 LIMITATION OF WARRANTIES.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.0 INDEMNIFICATION
11.1 PATENT, COPYRIGHT, MASK WORK, AND TRADEMARK INDEMNIFICATION. Seller
shall, at its own expense, indemnify, defend and hold harmless Buyer, its
subsidiaries, its and their successors and assigns, officers, employees, agents,
End Users and resellers from and against all damages, costs or expenses incurred
as a result of any claim that a Products provided hereunder infringes a patent,
copyright, mask work, or trademark. Buyer shall promptly notify Seller of any
such claim, and cooperate fully with Seller. Seller shall have control of the
defense against such claim, except that Buyer shall have the right to retain
counsel and participate in the defense or settlement.
In the event that an injunction is obtained against the use or sale of a
Product, Seller shall, at its own expense, either:
a) [*]
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
b) [*]
c) [*]
Notwithstanding the foregoing, Seller shall not be obligated to indemnify Buyer
if the infringement is caused by Buyer's modification of the Product after
delivery by Seller and such infringement would not have occurred but for such
Buyer modification.
11.2 SELLER'S PRODUCT AND OTHER INDEMNIFICATION. Seller shall indemnify and
hold Buyer, its subsidiaries, its and their successors and assigns,
officers, employees and agents harmless from any claims for personal injury
or property damage caused by any defect in design or manufacture of the
Products or by Seller's negligent act, omission or willful misconduct.
11.3 BUYER'S INDEMNIFICATION. Buyer shall indemnify and hold Seller, its
subsidiaries, its and their successors and assigns, officers, employees and
agents harmless from any claims for personal injury or property damage
caused by any defect in design or manufacture of the Buyer's products or by
Buyer's negligent act, omission or willful misconduct.
12.0 PRODUCT SUPPORT
12.1 END USER DOCUMENTATION AND SERVICE DOCUMENTATION. Seller shall furnish to
Buyer two (2) English language copies of the End User Documentation and
Service Documentation at no charge, and a camera ready copy and electronic
equivalent of the End User and Service Documentation at the prices, if any,
set forth in Attachment 5. Seller shall also furnish Buyer with updates to
the End User Documentation and Service Documentation within thirty (30)
days of their internal availability. Seller hereby grants Buyer a
worldwide, non-exclusive, non-transferable royalty-free license to
duplicate and redistribute all or any part of the End User Documentation
and Service Documentation and to make, have made and distribute derivative
works based on such End User Documentation and Service Documentation for
use
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
in connection with the sale, use, installation, repair and maintenance
of the Products.
12.2 TRAINING. Seller shall provide Buyer with one (1) training class in the
United States at Buyer's Boulder, Colorado location in March 1996 and one
(1) training class in Europe for up to twenty (20) students per class at a
date to be determined, both classes at no charge to Buyer. Additional
training classes shall be furnished by the Seller at a mutually agreed upon
price per session. The classes will be held at mutually agreed upon times
at the same locations as the original training classes. The Buyer shall be
responsible for the travel and living expenses of its employees. In the
event Buyer requests that a training class be held at a location other than
specified above, Buyer will reimburse Seller for the reasonable travel and
living expenses incurred by Seller's training personnel. Training classes
may be videotaped by Buyer and any training materials may be copied for
future training use by Buyer.
12.3 TECHNICAL SUPPORT. Seller shall provide Buyer with telephone technical
support during the term of this Agreement at no charge to Buyer. Such
support shall be provided as set forth in Attachment 6. If a technical
problem cannot be resolved by telephone technical support, Seller shall
provide on site technical support to Buyer at the rates specified in
Attachment 6 provided, however, that Buyer shall not be required to make
any payments to Seller for on site technical support if the technical
problem is due to a defect in design, resulting in a failure of the
Products to conform to the Product Specifications.
13.0 CONTINUITY OF SUPPLY
13.1 CURRENT PRODUCTS, SPARE PARTS, AND SUPPLIES. In the event that Seller
shall fail or be unable for any reason to provide Products, Spare Parts,
and/or Supplies within [*] following receipt of written notice of default
from Buyer, Seller shall, at Buyer's request and without charge to Buyer,
provide for an experienced manufacturer to supply the Products, Spare
Parts, or Supplies to Buyer at the prices and under the terms and
conditions set forth in this Agreement, or shall within [*] of such notice
provide Buyer with the Requisite Documentation and promptly license Buyer,
or a party designated by Buyer, at no cost to manufacture and/or assemble
or have manufactured and/or assembled on
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDETIAL TREATMENT REQUEST
Buyer's behalf the Products, Spare Parts or Supplies that Seller is unable
to supply. Such license shall be non-exclusive, and shall be limited to the
manufacture and assembly of Products, Spare Parts or Supplies for Buyer's
use or for sale to Buyer's Customers or End Users and shall continue in
effect for as long a Seller is unable to deliver Products pursuant to this
Agreement. Seller shall also provide technical assistance to Buyer or to a
party designated by Buyer to support the manufacture of the Products and
Spare Parts. Any such assistance shall be provided at prices that do not
exceed Seller's then current charges for technical services.
13.2 PROVISION FOR SPARE PARTS AND SUPPLIES AFTER TERMINATION. In the event
either party terminates this Agreement or any Printer Engine is
discontinued, whichever occurs first, Seller agrees to allow Buyer to
purchase Spare Parts and Supplies at the then current prices, that is, the
price at the time each order is submitted by Buyer to Seller, for a period
of up to [*] from the date the last Printer Engine is delivered under this
Agreement. In addition, if Seller elects to discontinue providing Spare
Parts and/or Supplies for such Printer Engine after such [*] period, Seller
shall offer Buyer a last-time buy in quantities sufficient to satisfy the
requirements of Buyer's End Users.
[*]
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
13.3 FORCE MAJEURE. Neither party shall be responsible for failure to fulfill
its obligations under this Agreement due to causes beyond its control
including, but not limited to, accidents, labor disputes, military
conflicts, insurrections, riots, explosions, lightning, earthquakes, fires,
storms and floods.
14.0 INTELLECTUAL PROPERTY
14.1 LICENSE OF SOFTWARE AND INTERNAL CODE. Seller hereby grants to Buyer a
worldwide, non-exclusive, non-transferable, royalty-free license to use, to
sublicense to End Users to use, and to sublicense authorized agents,
resellers, and distributors to use and sublicense to End Users to use, the
software and internal code listed in Attachment 7 in connection with the
Products.
14.2 LICENSE OF PATENTS AND APPEARANCE DESIGNS. Seller hereby grants to Buyer
worldwide, non-exclusive non-transferable, royalty-free patent and
appearance design patent license to all patents owned or licensable by
Seller that cover or relate to use of (a) the software or internal code
listed in Attachment 7 and (b) the Products listed in Attachment 1. Seller
also grants Buyer the right to sublicense its End Users to use, and to
sublicense its subsidiaries and its and their authorized agents, resellers,
and distributors to use and sublicense to End Users to use, such software,
internal code and/or Products.
14.3 OWNERSHIP OF APPEARANCE DESIGNS. To the extent that Buyer uses its own
design appearance for a Product, that design appearance shall remain the
exclusive property of Buyer and Seller may not and agrees not to utilize
such design appearance for its own products. To the extent that Buyer
requests Seller to incorporate appearance design changes in a Product that
Buyer is purchasing under this Agreement as Custom Materials hereunder,
Seller agrees that such changes in appearance design shall be the exclusive
property of Buyer and Seller may not and agrees not to utilize such changes
in appearance design for its own products. The parties agree that Buyer is
licensed, as per subsection 14.2 above, to use portions or all of Seller's
appearance designs should Buyer have no desire to use its own or a modified
appearance design for a Product.
14.4 RIGHTS IN DATA. All of the Custom Material prepared specifically for Buyer
under this Agreement shall belong exclusively to Buyer and shall be deemed
to be works made for hire. To the extent that any of the items may not, by
operation of law, be works made for hire, Seller hereby assigns to Buyer
the ownership of copyright in such Custom Material and Buyer shall have the
right to obtain and hold in its own name copyrights, registrations and
similar protection which may be available in such Custom Material. Seller
agrees to give buyer all assistance reasonably required to perfect such
rights. To the extent that any of Seller's preexisting materials are
contained in such Custom Material, Seller grants to Buyer an irrevocable,
non-exclusive, worldwide, royalty-free license to:
a) use, execute, reproduce, display, perform, distribute (internally or
externally) copies of, and prepare derivative works based upon, such pre-
existing materials and derivative works thereof, and
b) license, sublicense and authorize others to do any, some or all of the
foregoing.
No license or right is granted to Seller, either expressly or by implication,
estoppel or otherwise to use, execute, reproduce, display, perform, distribute
copies of, or prepare derivative works based upon, any of such Custom Material
either during or after the term of this Agreement, except that Seller is free to
use its pre-existing materials in any manner, without restriction or any
obligation to Buyer.
14.5 TRADEMARKS. Except as permitted by local law, neither party shall have the
right to use the trademarks, trade names or logos of the other party in
connection with any product, promotion or publication without the prior
written approval of the other party.
14.6 INVENTION DISCLOSURE. Seller shall promptly make a complete written
disclosure to Buyer of each Invention arising out of Custom Material work,
and Buyer and Seller shall each promptly make a complete written disclosure
to the other of each joint Invention, in any case, specifically pointing
out the features or concepts which Seller or Buyer believes to be new or
different.
14.7 INVENTION RIGHTS. Seller hereby assigns to Buyer, its successors and
assigns, every sole and joint Invention made by Seller arising out of the
creation of Custom Materials under this Agreement, for which Buyer has
paid, together with the right to seek protection by obtaining patent rights
therefor and to claim all rights of priority thereunder, and the same shall
become and remain Buyer's property whether or not such protection is
sought.
Buyer will grant Seller a non-exclusive license to any Invention that has been
created as or grows out of Custom Materials for which Buyer has paid, provided
that Seller gives Buyer a lead time of at least [*], during which time only
Buyer's Products may be marketed with such Inventions incorporated therein,
provided, however, that Seller may not incorporate such an Invention in the
products of any other of its buyers who declines to permit Seller made
improvements to be incorporated in Buyer's Products .
Seller shall, upon Buyer's request and at Buyer's expense, cause patent
applications to be filed thereon through solicitors designated by Buyer, and
forthwith assign all such applications to Buyer, its successors and assigns.
Seller shall give Buyer and its solicitors all reasonable assistance in
connection with the preparation and prosecution of any such patent applications
and shall cause to be executed all such assignments and other instruments and
documents as Buyer shall consider necessary or appropriate to carry out the
intent of this Section 14 and its Subsections.
Each joint Invention made by Seller and Buyer not arising out of the creation of
Custom Materials under this Agreement shall be owned jointly by the parties and
Buyer and Seller shall be entitled to deal with each such joint Invention as
though it were a sole invention with no obligation to account to the other with
respect to any such joint Invention.
14.8 PATENT AND COPYRIGHT CLEARANCE INVESTIGATION. Seller will disclose to
Buyer in writing, within [*] of Buyer's request thereof,
sufficient technical information necessary to enable Buyer to conduct a
patent clearance investigation with respect to Products to be delivered
hereunder. Seller shall also promptly notify Buyer in writing of any
patents of third parties which pertain to the Products, and of any suits or
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATEMENT REQUEST
claims of patent infringement which have made with respect to the Products.
15.0 CONFIDENTIAL INFORMATION.
15.1 HANDLING OF CONFIDENTIAL INFORMATION. All disclosures of confidential
information shall be made pursuant to the terms and conditions of the
Confidential Disclosure Agreement ("CDA") between the parties, which is
incorporated herein by reference as Attachment 9, or another written,
confidential disclosure agreement that is mutually agreed to by the
parties.
16.0 TERMINATION
16.1 MATERIAL BREACH. Either party may terminate this Agreement or any purchase
order issued hereunder effective immediately upon written notice of
termination to the other party in the event the other party materially
breaches this Agreement and such breach is not cured within thirty (30)
days after receipt of the written notice of breach from the terminating
party. If this Agreement is terminated by Seller due to Buyer's breach,
Buyer's sole obligation to Seller for such breach shall be the payment to
Seller for (1) all Products shipped to and accepted by Buyer prior to the
effective date of such termination, and (2) all costs incurred by Seller in
the production of any unfinished Products, including but not limited to
Seller's costs associated with the acquisition of raw materials and/or
component parts and the costs of terminating contracts with its vendors;
provided, however, that Seller shall make a commercially prudent effort in
such event to mitigate Buyer's damages.
16.2 INSOLVENCY. Buyer may terminate this Agreement if, more than [*] after the
Commencement Date hereof:
a) Seller becomes insolvent or unable to meet its obligations as they
become due,
b) a petition or proceeding, voluntary or involuntary, for relief under
bankruptcy, insolvency, reorganization, dissolution, winding-up,
receivership, liquidation or similar law is filed or commenced by or
against Seller, or
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
c) a trustee, custodian, receiver or similar officer is appointed to take
charge of all or part of Seller's business.
During the [*] period after the Commencement Date of this Agreement, Buyer may
twice, without cause, request Seller to give Buyer written assurance of Seller's
general financial condition. These requests may be made upon the [*] and
[*]anniversaries of the Commencement Date. Buyer may also request written
reassurance from Seller as to Seller's financial status during the term of this
Agreement and any extensions thereof provided that Buyer states specific
appropriate reasons therefor and, if Buyer so states its reasons, Seller shall
be obligated to reply to Buyer within thirty (30) business days of receipt of
Buyer's request.
In the event of termination for insolvency, Seller shall provide to Buyer any
and all Requisite Documentation.
17.0 GENERAL
17.1 AUTHORITY. Each party represents that it has the authority to enter into
and perform all of the obligations set forth in this Agreement.
17.2 COMPLIANCE WITH LAWS. Each party shall comply with all applicable federal,
state and local laws, regulations and ordinances including, but not limited
to, the regulations of the United States Department of Commerce relating to
the export of products or technical data.
17.3 LIMITATION OF ACTIONS. Neither party may bring an action, regardless of
form, arising out of this Agreement, more than two years after the cause of
action has arisen.
17.4 WAIVER. Failure of either party to enforce any provision of this Agreement
shall not be deemed a waiver of future enforcement of that or any other
provision.
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
17.5 ASSIGNMENT. Neither party can assign its rights or delegate its
obligations under this Agreement without the prior written consent of the
other party.
17.6 ENTIRE AGREEMENT. This Agreement is the complete and exclusive statement
of the agreement between the parties and supersedes any and all prior oral
or written communications between the parties relating to the subject
matter hereof [*]
17.7 INDEPENDENT CONTRACTORS. Both parties are independent contractors.
Nothing in this Agreement shall be deemed to create an agency, partnership,
joint venture, or employer/employee relationship.
17.8 LOST PROFITS/CONSEQUENTIAL DAMAGES. In no event shall either party be
liable for any lost profits or consequential damages arising out of, or
relating to this Agreement.
17.9 NOTICES Any notice which may be or is required to be given under this
Agreement shall be in writing, and shall be deemed to have been received:
a) when delivered personally,
b) when sent by confirmed facsimile,
c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or
d) one (1) day after deposit with a commercial oven-tight carrier with written
verification of receipt.
All notices shall be sent to the addresses set forth below:
Notices regarding technical information:
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
BUYER: SELLER:
[*] [*]
----------- -------------
(Name) (Name)
Senior Engineer Product Manager
--------------- ---------------
(Title) (Title)
0000 Xxxxxxxx Xxxxxxx 00 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxx Xxxxxxxx, XX 00000
----------------- -----------------------
(Address) (Address)
Notices regarding contract administration, daily operations and updates and
modifications to the contract attachments:
BUYER: SELLER:
[*] [*]
------------------- ------------
(Name) (Name)
Contract Administrator/Engineer Director of Marketing
------------------------------- ---------------------
(Title) (Title)
0000 Xxxxx Xxxxxx 00 Xxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxx Xxxxxxxx, XX 00000
------------------ -----------------------
(Address) (Address)
Notices regarding contract modifications and contract interpretation:
BUYER: SELLER:
[*] [*]
------------------- ------------------
(Name) (Name)
Director, Business Alliances Vice President
---------------------------- --------------
(Title) (Title)
000 Xxxxxxxxx Xxxx 00 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxx Xxxxxxxx, XX 00000
------------------- -----------------------
(Address) (Address)
[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST
17.10 MODEFICATIONS. This Agreement can be modified only by a written
amendment signed by the authorized representatives of the parties.
17.11 SEVERABILITY. If any provision of this Agreement or the application
thereof is held by any court of competent jurisdiction to be invalid,
illegal or unenforceable, such invalidity shall not affect the other
provisions of this Agreement, the enforceability of this Agreement as a
whole or the enforceability of such provision in other jurisdictions to
the extent permitted by law.
17.12 CONTROLLING LAW. This agreement shall be governed and construed in all
respects in accordance with the laws and regulations of the State of New
York, without reference to choice of law principles.
17.13 FORUM. Any action or proceeding brought to enforce or resolve disputes
relating to this Agreement shall be brought before a court of competent
jurisdiction by Seller in the State of Connecticut, including a Federal
District Court sitting within such state, or by Buyer before a court of
competent jurisdiction in the State of Colorado, including a Federal
District Court sitting within such state. Neither party shall attest that
such court lacks jurisdiction over such party or the subject matter hereof
17.14 WAIVER OF JURY TRIAL. The parties expressly waive any right they may have
to a jury trial.
17.15 SURVIVAL. All provisions which by their nature extend beyond the
termination or expiration of this Agreement shall remain in effect beyond
any termination or expiration.
17.16 ORDER OF PRECEDENCE. To the extent any terms and conditions of this
Agreement conflict with the terms and conditions of any invoice, purchase
order or purchase order acknowledgment, the terms and conditions of this
Agreement shall control.
17.17 HEADINGS. The headings and titles of the provisions of this Agreement are
inserted for convenience only and shall not affect the construction or
interpretation of any provision.
17.18 PUBLICITY Neither party shall publicly disclose the existence of this
Agreement, any information concerning this Agreement or the terms and
conditions of this Agreement, except as required by law, without the prior
written consent of the other party.
17.19 NO MINIMUM COMMITMENT. Both Buyer and Seller understand and agree that
the Agreement does not obligate Buyer to purchase a minimum amount of
Products.
IN WITNESS WHEREOF, both Buyer and Seller have executed this Agreement by their
respective authorized representatives.
INTERNATIONAL BUSINESS ACCENT COLOR SCIENCES, INC.
MACHINES CORPORATION
By: By:
-------------------------- ------------------------
(Signature) (Signature)
Name: Xxxxxxx X. Xxxxx, Xx. Name: Xxxxxxx X. Xxxxxx
-------------------- -----------------
Title: Vice-President Development Title: President
--------------------------- ---------
Date: April 11, 1996 Date: April 16, 1996
-------------- --------------
ATTACHMENT 1 SUBJECT TO PENDING
-------------------------------------
CONFIDENTIAL TREATMENT REQUEST
------------------------------------
ATTACHMENT 2: PACKAGING SPECIFICATIONS
All product(s) which buyer purchases from seller shall adhere to IBM packaging
specifications. These requirements are specified in the document "packaging and
materials handling/supplier and interplant requirements". The document number
is GA21-9261-9, a copy of which has been given to Seller by Buyer and which
Seller acknowledges receipt of.
ATTACHMENT 3 SUBJECT TO PENDING
------------------------------------
CONFIDENTIAL TREATMENT REQUEST
------------------------------------
Attachment 4: Quality Assurance and Testing Procedures
1.0 ACS QUALITY SYSTEM
ACS is committed to quality and excellence in achieving the goals for total
customer satisfaction and to deliver quality and cost competitive Product and
Spare Parts on time while continuously seeking to improve all work processes.
2.0 QUALITY LEVELS
The acceptable incoming quality level goal from ACS to IBM is defect free
Product and Spare Parts conforming to the Product and Spare Parts Specification
referenced in Attachment 3. ACS is required to make every effort to produce
Product and Spare Parts meeting this goal. A continuous Product and Spare Parts
and process improvement program shall be maintained by ACS to help in achieving
this goal.
3.0 QUALITY PLAN
ACS shall provide to IBM thirty (30) days prior to IBM's Product Commercial
Limited or General Availability, a documented Manufacturing, Quality & Test Plan
which specifies ACS's Manufacturing, Quality & Test processes designed to meet
the Product and Spare Parts Specification. This plan shall include, but not be
limited to procedures which define the following-.
. Receiving inspection of subcontract or purchased units/ components
. Control procedures for nonconforming material.
. Tool, gauges and test equipment certification and calibration program
. Manufacturing flow diagrams which identified the flow of the Product and
Spare Parts from receiving of detail or component parts through the assembly,
inspection test, packaging and shipping operations.
. Inspection records for in-process, final inspection and test
. Acceptance test procedures for subassemblies and final assemblies
. Engineering change control procedures
. Packaging stocking and shipping of acceptable assemblies
. Defect data collections and process reporting
. Plan for inspection, test, and packaging of those parts identified as
maintenance Spare Parts
Definition of good workmanship
. Procedure for qualifying parts/processes from subcontractors
IBM/ACS Product Purchase Agreement Page 137 April 11, 1996
The manufacturing/quality/test processes must be described to the extent
necessary to assure that defects are detected and removed at the earliest
practical point.
4.0 DEFECTIVE PRODUCTS OR SPARE PARTS
When IBM notifies ACS of defective Product and Spare Parts it has received from
ACS, ACS shall perform a defect analysis and define appropriate corrective
action and communicate it to IBM within four (4) working days. IBM will be
required to accept or reject the submitted corrective action within four (4)
working days of the receiving the plan. If IBM has not accepted or rejected the
plan within the four (4) day period, the corrective action shall be considered
accepted.
5.0 DATA RECORDS
ACS is responsible for collection of data and summary reports as mutually agreed
to by ACS and IBM. ACS's quality data shall be kept for a minimum of three (3)
years. IBM shall have the opportunity to review quality data upon request. IBM
reserves the right to ask ACS what kinds of failure analysis and/or corrective
actions are being taken to improve the Product and Spare Parts or processes
and/or eliminate defects.
6.0 HARDWARE ERRORS
IBM defines a hardware Error as any nonconformity that would prompt a service
call being reported by IBM and/or End User. The following nonexclusive list
serves as examples of hardware defects:
. Product and Spare Parts not built and/or shipped to IBM's order
. Product and Spare Parts having a visual/ mechanical/ functional defect
. Missing/incorrect Product and Spare Parts features
. Product and Spare Parts shipping damage (handling forces typical industry
standard)
The following non-inclusive list serves as examples of defects that IBM will not
hold ACS responsible for:
. Product and Spare Parts ordered incorrectly by IBM's marketing force
. Product and Spare Parts shipping damage (handling forces positively exceeded
industry standard)
. Product and Spare Parts improperly installed or End User improperly trained
. User complaints due to documentation modified by IBM
7.0 AUDIT INSPECTIONS
7.1 Location of Audits
IBM/ACS Product Purchase Agreement Page 137 April 11, 1996
IBM reserves the right to audit Product and Spare Parts from a
manufacturing/quality/reliability standpoint. The audit inspection may be
performed at any one of the two (2) following locations:
a) At ACS's point of manufacture: This would be done with prior agreement
with ACS so as to keep the disruption of the manufacturing line to a
minimum. ACS will provide the appropriate space, tools, equipment and
personnel to aid IBM in the audit. Each party will be responsible for its
own expenses.
b) At IBM's distribution center(s): IBM reserves the right to audit the
Product and Spare Parts at IBM's distribution center(s). ACS will provide
the necessary drawings required by an IBM quality inspector to enable this
inspector to determine the quality level of Products or Spare Parts.
7.2 Audit Findings
After completion of the audit, IBM and the ACS will jointly agree to the
disposition of the Product and Spare Parts based on the findings of the audit.
7.3 Corrective Action
If defects are found in the quality audit, ACS agrees to perform failure and
process analysis and initiate positive corrective action. ACS will provide the
necessary parts, documentation and labor to correct the defects on the audited
Product and Spare Parts prior to shipment of such Product and Spare Parts to the
end user.
7.4 IBM Responsibilities
IBM quality assurance audit activities will be in progress throughout the term
of this Agreement. These activities in no way replace ACS's quality assurance
efforts.
8.0 SUPPLIER EVALUATION
8.1 Supplier Audits
IBM reserves the fight to conduct preliminary and periodic audits to assure that
ACS's and/or ACS's subcontractors facilities, manufacturing and quality
assurance programs are adequate for production of the Product and Spare Parts to
meet the Product and Spare Parts Specifications. Audits of ACS suppliers by IBM
must be agreed to and coordinated by ACS to ensure minimal interruption to ACS
suppliers.
8.2 Audit Personnel
IBM/ACS Product Purchase Agreement Page 138 April 11, 1996
IBM may assign a resident representative to ACS's facility to perform source
audits. Appropriate notification will be given to ACS of this intent.
9.0 Product and Spare Parts PERFORMANCE
9.1 General
IBM will periodically provide ACS with summary defect data. The period the data
will cover will be established by the parties, as needed, to ensure defect free
Product and Spare Parts. The data provided will be the combined results of
incoming quality audits, any defect discovered during prove integration into IBM
process and field repair audits.
The parties shall meet at least one (1) time each calendar quarter to review
this data, defect trends and any corrective actions that were implemented or
need to be implemented to eliminate defects.
9.2 Installation
IBM expects that Product and Spare Parts will be installed by IBM's Customer
Engineering force in the field defect free. The goal for the three (3) month
rolling average for install will be at least 97% defect free.
9.3 Early Life
IBM expects that the Product and Spare Parts will perform in the field (at the
End User location) without failure. The goal for the three month rolling
average for early life failures will be jointly determined by IBM and ACS.
9.4 Full Field
IBM expects that the Product and Spare Parts will perform in the field (at the
End User location) without failure. The goal for the three month rolling
average for full field defects will be jointly determined by IBM and ACS.
9.5 Remedies
If the Product and Spare Part fails to meet the above quality/reliability
requirements for the install, early life or full field, IBM and ACS agree to
perform failure/process analysis and provide positive corrective actions. Such
corrective actions may require actions by IBM, ACS, or both parties. If it is
determined that ACS is the cause of the failure to meet the above
quality/reliability requirements, ACS shall issue Engineering Changes as defined
in Section 8 "PRODUCT CHANGES" of this Agreement, to remedy the cause of the
failure. Other actions may be required to remedy such failures and will be
negotiated on an event by event basis and mutually agreed to by the parties.
IBM/ACS Product Purchase Agreement
Page 139
April 11, 1996
10.0 SPARE PART PERFORMANCE
10.1 Criteria
IBM expects Spare Parts supplied by ACS to be defect free. The new defective
("new D") goal for Spare Parts supplied by ACS to IBM shall be 3% or less. The
"new D" rate will be reported by IBM's quality engineer to ACS on a monthly
basis.
10.2 Defective Spare Parts Return
IBM agrees to have defective or rejected Spare Parts returned from IBM's
Customer Engineering Force in the field. IBM will then return these parts to
ACS for failure analysis and corrective action when agreed upon by IBM and ACS.
10.3 Remedies
If ACS fails to meet the above quality/reliability requirement for Spare Parts,
ACS agrees to perform failure/process analysis and provide positive corrective
action. Upon mutual agreement, ACS will provide the necessary parts,
documentation and labor to correct the problem at ACS's repair facility or
reimburse IBM for the same. IBM reserves the fight to return all suspect Spare
Parts from IBM's Spare Parts distribution network for repair/replacement by ACS.
11.0 NONCONFORMING MATERIAL
11.1 Acceptance
Product and Spare Parts not conforming to the specifications required by this
agreement are not acceptable for shipment to IBM except when an off-
specification (off-spec) request has been made by ACS and approved by IBM's
manufacturing or quality engineer. Off-specs will not be considered for safety
or functional defects.
11.2 Disposal
Procedures are required by ACS to identify, evaluate, control and dispose of
non-conforming material. Such material must be segregated to prevent
contamination of production lots.
IBM/ACS Product Purchase Agreement
Page 140
April 11, 1996
Attachment 5: Documentation
---------------------------
Below is a list of the documentation requirements:
ACS DELIVERABLES-
1. Customer Information Units:
- Operator's Guide
- Program Integrated Information (PII) - messages, screen text, help
2. Service Information Units:
- Maintenance Information
3. Early source graphic and .pcx file to be provided to IBM for format
verification.
4. The above information units should follow the IBM Information Development
Guidelines and pass reviews provided by IBM. Reviews are to be scheduled early
in the development of the documentation to ensure we are heading in the right
direction, another review toward the middle of the documentation development
cycle and a final review prior to the transferring of the data sets. These
reviews are a minimum, but should be sufficient if finished sections are
delivered for ongoing review and comment. Finished non language translated
documentation must be delivered 45 days prior to general availability.
Documentation which requires language translation will be delivered at least 12
weeks prior to general availability.
5. The final deliverables will include complete and accurate FrameMaker source
files and hardcopy.
The following are requirements for items I & 2 above.
* Tools Requirements
- FrameMaker 4.0 or later
- Graphics tool used must be compatible with FrameMaker 4.0
* Text File Requirements
- Naming conventions for text files-.
- filename.mkr for chapter files (file naming conventions TBD)
- PC directory structure for text files:
- c:\3991\text\main\filename.mkr - Maintenance Information files
- c:\3991\text\oper\filename.mkr - Operator's Guide files
- Use BMSTYL3.MKR template for all customer documentation
- File size: Maintenance Information files should be 10 pages or less
IBM/ACS Product Purchase Agreement
Page 141
April 11, 1996
Graphics Requirements
- Naming conventions for graphics files (using C6PaOnnn prefix):
- C6POOnnn.pcx - graphic files in Operator's Guide
- C6PMOnnn.pcx - graphic files in Maintenance Information
- C6PPOnnn.pcx - graphic files in Part's Catalog
- PC directory structure for graphics files:
- c:\3991\art\main\filename.pcx
- c:\3991\art\oper\filename.pcx
- Create source art as vector graphics (not bit map) at 300 dpi
- File format for source art must be either CGM, CDR, Al, or DXF
- Size the source art (rather than when importing into Frame)
- Create PCX files from source graphic using HiJack, if necessary
- Import all graphics by reference at 300 dpi into the text files
- Graphic label Requirements-.
- For Maintenance Information, use callouts (reverse type) in graphics
rather than text labels.
- For customer documents, create graphics without labels and add labels to
the graphic after the graphic is imported.
- Place filename for graphic (outside graphic, rotated, 6 point)
The content outline for the Operator's Guide list in item #1 above, will be
similar to the IBM 3900 printing system as approved by both ACS and IBM.
The following are requirements for the Maintenance Information in item #2 above:
Maintenance documentation package is to contain the following tabbed sections:
- Safety
- Locations
- Wiring diagrams
- PM, (Preventive Maintenance)
- Diagnostics
- Parts catalog
- MAPs (Maintenance Analyst Procedures)
FrameMaker does not support MAPs format to be used in the documentation. A list
of all the possible items that could cause a particular problem will be
sufficient. For instance, the drive motor does not run because; motor is
defective, wiring is open, (list all possible open wires), circuit breaker is
open, bind in the driven mechanism, etc.
A list of helpful diagnostics should also be included. For instance, driver
routine that runs the drive motor, driver for routine for motor rotation sensor.
A small wiring diagram should also be included for the circuitry that may be
involved in the failure. See 3900 MAPS for examples.
IBM/ACS Product Purchase Agreement
Page 142
April 11, 1996
IBM will create this section of the Maintenance documentation based on the above
information from ACS.
- XXXX, (Check Adjust Remove Replace)
- Tools, (Special tools for Twilight)
- Theory of Operation
- Installation/Discontinuance/Relocation
All portions of the documentation with the exception of the MAPs should be
complete and usable by the field. The procedures must be complete and contain
all required art. Individual sections should be provided when they are complete
to allow for comments prior to reviews.
IBM DELIVERABLES:
1. Guidelines for technical illustrations and wiring diagrams (TBD)
2. FrameMaker templates for customer documents (BMSTYL3.NfKR) and Maintenance
Information (TBD)
3. Boilerplate document sections (notices, trademarks, communication
statements, safety notices, and safety information)
4. Complete and timely reviews
5. Information Development Guidelines:
- Style
- Information Development Guidelines
- Task-Oriented Information
- Vocabularies for Customer and Service Information (CE Limited Vocabulary)
- IBM Dictionary of Printing
6. After delivery of what is considered to be finished maintenance
documentation, IBM will test and enhance that documentation. If changes to the
machine require documentation changes ACS must provide all updates to the
documentation with change bars to identify the changed portions of the
documentation.
7. IBM is responsible for the development of the Introduction and Planning
Guide.
Page 143
Attachment 6: Technical Support
-------------------------------
Level of Support
----------------
Seller technical support to Buyer shall be limited to Product malfunction,
performance deficiencies, and other Seller technical obligations identified in
this Agreement, i.e. change request coordination, technical information flow
with Buyer, unresolved technical field problems and service bulletins.
Technical Support
-----------------
Seller technical support to Buyer technical requests to Seller will be through a
single point of contact.
Technical support to Buyer is intended to address Product malfunction and
performance deficiencies experienced by the Buyer that the Buyer cannot resolve
through its normal problem escalation process. After good faith efforts to
resolve the problems internally, Buyer, through its own point contact, may
contact Seller by phone during normal business hours for assistance in problem
resolution. Seller technical support contact will assist Buyer in resolving
problems. Seller technical support contact will coordinate other Seller
resources necessary to assist Buyer in problem resolution.
Buyer and Seller change request processes will be initiated and coordinated
through their single point respective single point contacts. All technical
information and updates regarding Sellers' Products identified in this Agreement
will be provided to the Buyer through the Seller's technical support contact.
Technical support outside of normal business hours will only be requested after
Buyer has exhausted all other technical support channels. These include an on
site customer engineer (CE), a district customer engineer (CE), Boulder level 2
support and Boulder engineering support. Seller will provide a telephone number
and fax number which will be available twenty four (24) hours per day and seven
(7) days per week.
Business Hours
--------------
Normal business hours are from 7-.30 AM to 4:00 PM Mountain Standard Time
weekdays. (Monday through Friday)
IBM/ACS Product Purchase Agreement
Page 144
April 11, 1996
On Site Support
---------------
Seller will provide onsite technical support as required by Buyer. On site
support will be charged to Buyer according to Seller's standard per them rates
in effect at the time support is provided. Per them charges will include, but
not be limited to, the following- travel expense (all actual and reasonable
travel, including meals and lodging), labor hours, parts, materials and supplies
used.
Page 145
Attachment 7: Software Licenses
-------------------------------
Number/System
Name of Software Vendor/Manufacturer Number/System
------------------ ------------------- -------------
Windows 95 Microsoft 1
DOS 6.1 Microsoft 2
DOS 4GfW Pro Tenberry,lnc 1
Seller shall have necessary license agreements in place to allow Buyer to
purchase hard drives with previously loaded software. These hard drives will be
used by the Buyer as a Spare Part.
Page 146
ATTACHMENT 8 SUBJECT TO PENDING
---------------------------------------------
CONFIDENTIAL TREATMENT REQUEST
---------------------------------------------
April 11, 1996
Attachment 9: Confidential Disclosure Agreement
-----------------------------------------------
This Attachment 9 constitutes pages 152 through 158 of the IBM/ACS Product
Purchase Agreement.
Page 152
April 11, 1996
CONFIDENTIAL DISCLOSURE AGREEMENT
This is a Confidential Disclosure Agreement ("Agreement") between International
Business Machines Corporation, located at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxx, XX
00000 ("IBM") and Accent Color Sciences, Inc., with a principal place of
business at 000 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxxx, XX 00000 ("ACS").
WHEREAS, IBM and ACS are exploring the possibility of evaluating and entering
into a contemplated development and procurement relationship; and
WHEREAS, the disclosure of certain information that is confidential to both IBM
and ACS is required in order to further evaluate the feasibility of such a
contemplated development and procurement relationship; and
NOW THEREFORE, both IBM and ACS agree to the following terms and conditions:
1. For purposes of this Agreement, "Information" shall mean that
nonconfidential or confidential information pertaining to the possible
development and/or procurement of a high speed, spot color printer for
attachment to the IBM 3900 family of printers.
2. For purposes of this Agreement, "Discloser" shall mean the party to this
Agreement who is disclosing Information in confidence to the other party to
this Agreement, in accordance with the terms and conditions of this
Agreement.
3. For purposes of this Agreement, "Recipient" shall mean the party to this
Agreement who is receiving Information in confidence from the other party
to this Agreement, in accordance with the terms and conditions of this
Agreement.
4. For purposes of this Agreement, "Subsidiary" shall mean a corporation,
company or other entity more than fifty percent (50%) of whose outstanding
shares or securities (representing the right other than as affected by
events or default, 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, company or other
entity shall be deemed to be a Subsidiary only as long as such ownership or
control exists.
5. Both IBM and ACS understand and agree that in the event that additional
Information or information of a more highly sensitive or confidential
nature needs to be exchanged, a mutually agreed upon amendment to this
Agreement which governs both the exchange and use of such Information or
information of a more highly sensitive or confidential nature, will be
executed by the parties.
6. All disclosures of Information by Discloser to Recipient pursuant to this
Agreement shall be made by or under the supervision of a Technical
Coordinator for Discloser to a Technical Coordinator for Recipient or their
respective designees, if any, who shall be
identified in an express writing. Such Technical Coordinators are
identified in Paragraph 12 hereof. All disclosures of Information will be
deemed to be nonconfidential unless specifically designated at the time of
disclosure (in the manner described in Paragraph 7 hereof) as including
confidential Information. With respect to all such Information disclosed
by Discloser to Recipient, except such Information as is so designated as
the confidential Information of Discloser, Discloser grants to Recipient,
to the extent, if any, of its interest therein, a nonexclusive, royalty
free, irrevocable, unrestricted, and worldwide license to use, have used,
disclose to others, make copies in the case of documents, and dispose of,
all without limitation, such nonconfidential Information in any manner
Recipient determines, including the development, manufacture, marketing,
and maintenance of products and services incorporating such nonconfidential
Information.
7. With respect to such Information of Discloser, when it is disclosed in
writing (including such Information recorded in a medium such as a tape or
disk), the writing will state the date of disclosure, that the Information
contained therein is confidential and that it is being disclosed pursuant
to this Agreement, and will contain an appropriate legend, such as "IBM
Confidential Information" or "ACS Confidential Information." If such
disclosure is orally and/or visually made after the date of execution of
this Agreement, then the confidential nature of the Information so
disclosed shall be confirmed in a written resume within twenty (20) days
following such disclosure. If such disclosure was orally and/or visually
made prior to the date of execution of this Agreement, then the
confidential nature of the Information so disclosed shall be confirmed in a
written resume within twenty (20) days following execution of this
Agreement. The resume will specifically identify that Information which is
confidential. Such resume will have such Information which is confidential
identified as "IBM Confidential Information" or "ACS Confidential
Information.
8. Subject to the provisions of Paragraphs 9 and 10 hereof, for a period of
three (3) years from the date of disclosure, the period of confidentiality,
Recipient agrees to use the same care and discretion to limit disclosure of
such received confidential Information of Discloser to only those of its
employees who have a need to know it and to avoid disclosure, publication
or dissemination of the Information by those Recipient employees, using at
least the same degree of care as Recipient employs with similar information
of its own which it does not desire to publish, disclose or disseminate.
Recipient may use any writings or resumes containing any such confidential
Information provided by Discloser for any purpose, subject to the obligation of
confidentiality in the above paragraph. Recipient shall be free to use the
residuals of such confidential Information of Discloser for any purpose
including use in the development, manufacture, marketing and maintenance of its
products and services. However, Recipient may not overtly utilize Discloser's
confidential Information or the residuals thereof to develop products similar to
the products developed and/or marketed by Discloser. Otherwise, any permitted
use hereunder with respect to the residuals of such confidential Information
shall be subject only to the obligations with respect to disclosure of such
confidential Information during such foregoing specified period of
confidentiality. Recipient may make a reasonable number of
copies of any writings or resumes containing Discloser confidential Information
received from Discloser pursuant to this Agreement.
The term "residuals", as used in this Agreement, shall mean that Information in
non-tangible form which may be retained by those employees of Recipient who have
had access to the confidential Information of Discloser during the term of this
Agreement. It is understood that receipt of Discloser's confidential
Information under this Agreement shall not create any obligation in any way
limiting or restricting the assignment and/or reassignment of Recipient
employees within Recipient. The obligations respecting the confidentiality of
shall not, however, be affected or changed as a result of any such assignment
and/or reassignment of Recipient employees.
Following the period of confidentiality, no obligation of any kind is assumed
by, or is to implied against, Recipient with respect to any Discloser
confidential Information, and Recipient shall be free to disclose, publish or
disseminate such confidential Information to others without limitation and shall
have all the rights relative to such Information as are set forth in Paragraph 6
hereof as if such confidential Information had been transferred as
nonconfidential Information under said Paragraph.
9. Disclosure of such confidential Information of Discloser shall not be
precluded if such disclosure is:
a) In response to a valid order of a court or other governmental body of
the United states or any political subdivision thereof; provided,
however, that Recipient shall first have given notice to Discloser and
made a reasonable effort to obtain a protective order requiring that
the Information and/or documents so disclosed be used only for the
purposes for which the order was issued; or
b) otherwise required by law; or
c) necessary to establish rights under this Agreement.
10. Notwithstanding any other provisions of this Agreement, the obligations
specified in Paragraph 8 hereof will not apply to any Information that:
a) is already in the possession of Recipient or any of its Subsidiaries
without obligation of confidence;
b) is independently developed by Recipient or any of its Subsidiaries;
c) is or becomes publicly available without breach of this Agreement;
d) is rightfully received by Recipient from a third party;
e) is released for disclosure by Discloser with its written consent; or
is inherently disclosed in the use, lease, sale or other distribution
of, or publicly available supporting documentation for, any present or
future product or service by or for Recipient or any of its
Subsidiaries.
11. The term of this Agreement during which Information may be disclosed by
Discloser to Recipient, and not the period of confidentiality, shall be
from September 16, 1995 through December 31, 1995 and may be extended by
the written of the parties. Either party may terminate this Agreement
prior to that time, with or without cause, upon ten (10) days written
notice to the other.
12. The Technical Coordinator for the parties are:
For IBM:
--------
Xxxx Corner
IBM Corporation
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
For ACS:
--------
Xxxxxx Xxxxxxxx
Accent Color Sciences, Inc.
000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Each party may change its Technical Coordinator or indicate a designee for their
Technical Coordinator at any time and from time to time during the term of this
Agreement by notifying the Technical Coordinator for the other party in writing
at the designated address set forth above.
13. IBM and ACS also agree that they will not disclose the terms and
conditions and subject matter of this Agreement without the written
consent of the other, or, except as provided in Paragraph 9 hereof.
14. Notice shall be deemed given under this Agreement when received as United
States Certified Mail, postage paid by the depositing party, in a United
States Post Office or branch.
15. No license or immunity is granted by this Agreement by either party to
the other, either directly or indirectly by implication, estoppel, or
otherwise, under any patents. None of the Information which may be
disclosed hereunder shall constitute any representation, warranty,
assurance or guarantee by Discloser to Recipient with respect to the
infringement of patents or other rights of others.
16. Except for the foregoing restraints on the use of confidential Infor-
mation, nothing in this Agreement shall be construed as impairing the
right of either party to develop, design, make, use, procure and/or market
products or services, during the term of this
Agreement or in the future, which may be similar to and/or competitive
with those offered by the other party.
17. The rights and obligations of Paragraphs 6, 8, 13, 16, 17 and 20 of this
Agreement shall survive and continue after any expiration or termination
of this Agreement and shall bind the parties and their successors and
assigns.
18. Each party agrees to comply, and do all things necessary for the other
party to comply, with all applicable federal, state and local laws,
regulations and ordinances, including but not limited to the regulations
of the United States Department of Commerce relating to the export of
technical data, insofar as they relate to the activities to be performed
under this Agreement. Recipient agrees to obtain the required government
documents and approvals prior to the export of any technical data
disclosed to it or of the direct product related thereto.
19. Nothing contained in this Agreement shall be construed as conferring any
rights to use in advertising, publicity or other marketing activities any
name, trade name, trademark or other designation of either party hereto,
including any contraction, abbreviation or simulation of any of the
foregoing, and each party hereto agrees not to use the existence of this
Agreement in any promotional activity without the express written approval
of the other party.
20. This Agreement shall be construed in accordance with the substantive laws
of the State of New York, not including the choice of law provisions
thereof. Any action or proceeding to enforce or resolve disputes relating
to this Agreement shall be brought before a court of competent
jurisdiction in the State of New York, including a Federal District Court
sitting within such a state. Neither party shall attest that such court
lacks jurisdiction over such party or the subject matter hereof.
21. This Agreement may be executed in one or more counterparts, all of which
will be considered one and the same Agreement. Any amendment or
modification of this Agreement shall be in writing and shall be signed by
both of the parties.
22. Failure or delay on the part of either party to exercise any right, power,
privilege or remedy hereunder shall not constitute a waiver thereof. A
waiver of default shall not operate as a waiver of any other default or of
the same type of default on a future occasion.
23. This Agreement is intended as the complete and exclusive statement of the
agreement between IBM and ACS relative to the subject matter hereof and
supersedes all prior agreements and negotiations relating to the subject
matter hereof.
IBM and ACS each represent that the individual signing this Agreement on their
respective behalf has the power and authority to enter into this Agreement and
that this Agreement constitutes a valid and binding obligation of each party.
IN WITNESS WHEREOF, both IBM and ACS have executed this Agreement by their
respective authorized representatives.
INTERNATIONAL BUSINESS ACCENT COLOR SCIENCES,
MACHINES CORPORATION INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Director of Hardware Title: President
Development Date: January 12, 1995
Date: January 12, 1995
ATTACHMENT 10 SUBJECT TO PENDING
-------------------------------------------
CONFIDENTIAL TREATMENT REQUEST
------------------------------------------
April 11, 1996
--------------
Attachment 11: Warranty Procedures
----------------------------------
Article 10.5 of the Agreement contains several alternatives for handling breach
of warranty, however, in most cases the warranty claim will be handled via an
exchange of parts, When the Buyer discovers a Product which is a candidate for a
warranty claim the Buyer shall fill out appropriate forms and return the Product
to the Seller. The Seller will in turn replace or repair the Product and return
to the Buyer.
The parties agree to put a detailed set of operating procedures in place to
handle warranty claims.
Page 162
