OEM ALLIANCE AGREEMENT
BETWEEN
C-MAC ELECTRONIC SYSTEMS, INC.
AND
PROJECTAVISION, INC.
This Alliance Agreement dated June 6, 1996 (the "Agreement") is entered
into between C-MAC Electronics Systems, Inc., (hereafter referred to as
"C-MAC"), a Corporation doing business at 0000, Xxxxxxxxx Xxxxxx, Xxxxxxxxxx
(Xxxxxx) Xxxxxx, X0X 0X0 and Projectavision, Inc., (hereafter referred to as
"Projectavision"), a Delaware Corporation doing business at 0 Xxxx Xxxxx, Xxxxx
000, Xxx Xxxx, XX 00000, (each Individually referred to as a "Party" and
collectively as the "Parties").
Whereas, Projectavision is engaged in the sale of projection systems in the
commercial market, and C-MAC is engaged in the business of manufacturing and
selling custom printed circuit boards and assemblies which have applications in
commercial and consumer markets;
Whereas, Projectavision, agrees to enter into an alliance with C-MAC to
manufacture the projector portion of the Chameleon product. Additionally, it is
Projectavision's intent to have C-MAC assemble and procure all components
necessary for the Chameleon's projector.
In turn, C-MAC will provide the following:
1. Favorable payment terms
2. Warranty repair services
3. Point of Sale Shipping
4. Prototyping services
5. Engineering support services including but not limited to
design for manufacturability, testability, program management,
quality assurance, etc.
Whereas, it is also, Projectavision's present intention within this
alliance to develop a relationship with C-MAC for future products and/or product
improvements. In this relationship, Projectavision will bring its product to
C-MAC for development for manufacturing. C-MAC will bring its resources for
engineering and manufacturing.
Whereas, the Parties desire to put in place this Agreement which
establishes the terms under which Projectavision may issue purchase orders for
the purchase of goods manufactured by C-MAC.
The Parties hereby agree as follows:
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1. DEFINITIONS
For purposes of this Agreement:
a. The term "Projectavision" includes Projectavision and, unless the
context otherwise requires, all of its Subsidiaries.
b. The term "C-MACs includes C-MAC Electronic Systems, Inc. and, unless the
context otherwise requires, all of its Subsidiaries.
c. "Intellectual Property Rights" shall mean all the rights relating to (a)
all inventions, invention disclosures, patent, investors, certificates, utility
models, industrial models, industrial designs, xxxxx patents, patents of
importation and other government issued or granted indicia of invention
ownership, including without limitation any reissue, extension, division,
continuation or continuation-in-part applications throughout the world; (b) all
trade secrets and trade secret rights, arising under common law, state law and
laws of foreign countries; (c) all copyright and all other works of authorship,
whether or not copyrightable, throughout the world; and (d) all other mask works
rights.
d. "Subsidiary" or "Subsidiaries" means any corporation, company or other
entity of which more than 50% of the outstanding shares of stock entitled to
vote for the election of directors (other than shares of stock whose voting
rights are subject to restriction) are owned or controlled by either Party,
directly or indirectly, now or hereafter during the term of this Agreement. Any
corporation, company or other entity that would at the time be a Subsidiary of
Projectavision or C-MAC, as the case may be, by reason of the foregoing shall be
considered a Subsidiary for the purposes of this Agreement only so long as the
ownership or control, directly or indirectly, by Projectavision or C-MAC, as the
case may be, meets the conditions herein above set forth.
2. INTENTIONALLY LEFT BLANK
3. SPECIFIC PRODUCT ENGAGEMENTS
Exhibit 1 to this Agreement will outline the product prices, quantity,
description, part number (if available), and any other supplemental terms and
conditions which the Parties have agreed to. Additional exhibits to this
Agreement will be issued to reflect additional products and changes made to
prior exhibits.
4. CONFIDENTIAL INFORMATION
All information exchanges, developments, and other intellectual property
considerations which are deemed proprietary or confidential by either Party,
unless otherwise agreed to herein, shall be made pursuant to the Non-Disclosure
Agreement (NDA) between C-MAC and Projectavision effective March, 1996 herein
incorporated by reference. Such NDA shall be in effect for, and automatically
extended in all time periods through, the term of this OEM Alliance Agreement.
This provision shall survive the expiration, termination or cancellation of
this Agreement or any supplemental agreement issued hereunder.
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5. INTENTIONALLY LEFT BLANK
6. TERM OF AGREEMENT
This Agreement shall become effective on the date of execution of the
Agreement by both Parties. This Agreement shall expire five (5) years after the
effective date of the Agreement and may be extended for additional period(s) of
time by mutual written consent of both Parties upon terms and conditions to be
negotiated. Immediately upon the expiration, termination, or cancellation of
this Agreement, each Party will return to the other Party confidential
Information that was provided under this Agreement, unless otherwise mutually
agreed to by both Parties.
7. LANGUAGE
This Agreement and all purchase orders shall be in the English language.
The English language shall be controlling in all respects, and all versions of
this Agreement and purchase orders in any other language shall in no way be
binding upon the Parties or affect the interpretation of this Agreement or
purchase orders. All communications to be made under this Agreement or under any
purchase order shall be in English.
8. NOTICES
Any notices required or permitted to be given under this Agreement or under
any purchase order shall be in writing and shall be deemed valid and sufficient
if delivered in person, or delivered by fax (provided the original is thereafter
promptly dispatched by regular mail) to the following:
To Projectavision: Projectavision, Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
To C-MAC: C-MAC Electronic Systems Inc.
0000, Xxxxxxxxx Xxxxxx
Xxxxxxxxxx (Xxxxxx) Xxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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9. ORDERING PROCEDURES
a. Purchase orders shall be released with a header note stating that the
order is released pursuant to the terms and conditions of this Agreement and any
other terms and conditions as mutually agreed by the Parties. Such orders shall
reflect at a minimum, i) quantity, ii) product description, iii) unit price, iv)
extended price, v) requested delivery date(s), vi) carrier, vii) ship to
address, viii) xxxx to address, ix) specification/model number, and x)
quotation number.
b. All orders will be submitted to the following address:
C-MAC Electronic Systems Incorporated
0000, Xxxxxxxxx Xxxxxx
Xxxxxxxxxx (Xxxxxx) Xxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
c. C-MAC reserves the right to set a minimum order size if addressed in
quotation.
d. Terms or conditions reflected on the purchase order shall not apply. The
purchase order shall only be used as a tool to place orders with C-MAC and for
C-MAC to acknowledge the order.
e. At the time C-MAC delivers the ordered goods to the carrier,
Projectavision authorizes C-MAC to submit its invoice for the goods and
Projectavision shall reimburse C-MAC for the amounts specified on the invoice
pursuant to the terms and method of payments provision of this Agreement.
f. Projectavision authorizes C-MAC to make partial shipment of the goods
only after a written request has been received by Projectavision and agreed to
by both Parties. Projectavision agrees to reimburse C-MAC for such partial
shipments pursuant to the terms and method of payment provision of this
Agreement.
10. APPROVAL OF ORDERS
Projectavision will place its purchase order(s) for the goods provided by
C-MAC by releasing its order to the address, or fax identified within the
"Ordering Procedures" paragraph of this Agreement. When C-MAC accepts the
contents of the order, C-MAC will submit its acknowledgment form within ten (10)
days after the receipt of Projectavision's purchase order.
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11. TERMS AND METHODS OF PAYMENTS
Projectavision shall cause Texas Instruments to ship prepaid the DLP Light
Engine to C-MAC for incorporation into the final projector. The terms of payment
for items shipped under this Agreement shall be 100% payment in June 1996 for
the first 100 pre-production units. Then 1/3 in August 15, 1996, 1/3 net sixty
days (60) from date of invoice and 1/3 net one hundred twenty (120) days from
date of invoice for the first units of any item purchased. Then 1/3 delivery,
1/3 30 days date of invoice and 1/3 90 days date of invoice for the
next 5,000 units of any item purchased, net sixty (60) days from date of
invoice for the next 5,000 units of any item purchased, and net thirty (30) days
from the date of invoice for all subsequent quantities purchased, and shall be
subject to continuing credit approval. If the goods are delivered in
installments, Projectavision agrees to pay for each installment in accordance
with the terms of payment hereof. If Projectavision fails to make any payment
when it is due, in addition to any other remedies C-MAC may have, C-MAC reserves
the right withdraw credit and suspend or cancel performance under any open
purchase order, refuse to accept any order, refuse to accept any further
supplemental agreements or orders, withhold shipment or allow Projectavision to
make other arrangements satisfactory to C-MAC, which arrangements must be made
prior to the shipment under any purchase order, Payment shall be made for the
goods without regard to whether Projectavision has made or may make any
inspection of the goods. Payments shall be sent to:
C-MAC Electronic Systems, Inc.
0000, Xxxxxxxxx Xxxxxx
Xxxxxxxxxx (Xxxxxx) Xxxxxx
X0X 0X0
All payments made to C-MAC shall be in US dollars and shall reflect the C-MAC
invoice number(s). Each Party agrees to pay for their own bank charges
associated with electronic funds transfers.
Projectavision may not take any deductions or offsets of any kind from payments
due to C-MAC for any reason what so ever, including, without limitation, as a
result of other business relationships between Projectavision and C-MAC.
12. TAXES AND FEES
The prices for the goods delivered under this Agreement do not include any
taxes, levies, import duties, and fees of any kind, now or hereafter enacted,
applicable to the goods sold pursuant to this Agreement. C-MAC agrees that it
will file with the Canadian government for a deferral of duties and Goods and
Services Tax (GST). If applicable, C-MAC will have to be designated as importer
of record. If any of the taxes or fees described in this section are charged or
can be charged to C-MAC, C-Mac will invoice all such taxes or charges to
Projectavision (exclusive of taxes based on CMAC's income) and Projectavision
agrees to immediately remit payment to C-MAC.
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13. TRANSPORTATION COSTS
The prices for the goods delivered under this Agreement exclude all
transportation costs, including but not limited to, freight, insurance and
special handling and packaging. These costs will be the responsibility of
Projectavision. C-MAC plans to make all shipments FOB C-MAC's point of shipment,
freight collect. Projectavision shall specify a common carrier of their choosing
for the shipment of goods and shall make arrangements with its common carrier to
receive the shipments from C-MAC's point of shipment. Projectavision agrees to
provide C-MAC with the carrier(s) account number to allow C-MAC to ship freight
collect. C-MAC reserves the right to ship prepaid and invoice shipping charges.
14. TITLE AND DELIVERY
Title and risk of loss or damages to goods shipped will pass to
Projectavision upon C-MAC's tender of delivery of the goods to the
Projectavision designated carrier or the C-MAC chosen carrier and any loss or
damage thereafter shall be Projectavision's responsibility and shall not relieve
Projectavision from any of its obligations hereunder. C-MAC will pack the goods
for shipment to Projectavision using commercial practices for the type of goods
being sold pursuant to this Agreement and approved by Projectavision.
15. INSPECTION OF GOODS
Projectavision shall use best efforts to inspect all incoming shipments
within ten (10) days of receipt and agrees to furnish to C-MAC in writing within
said 10 days with any claim it may have for product deficiencies, shortages or
failures to meet the agreed specification. Projectavision's failure to make such
a claim will be deemed by C-MAC to constitute Projectavision`s acceptance of
the goods provided however that not withholding the foreseeing, C-MAC expressly
agrees that Projectavision's failure to make such a claim shall not constitute a
waiver by Projectavision of any of its rights under this agreement including but
not limited to any warranty rights covered within this Agreement. In the event
that Projectavision submits a claim to C-MAC involving incorrect materials,
defects in material, workmanship or specification errors, Projectavision shall
promptly return the affected goods to C-MAC's point of shipment, freight prepaid
and insured and C-MAC will, upon confirmation of the claim, promptly furnish
Projectavision with a written credit memorandum for the affected goods returned
and will ship to Projectavision replacement goods freight prepaid by C-MAC with
an invoice. Any materials being returned to C-MAC must be accompanied by a
Return Material Authorization (ARMA) number assigned by C-MAC. C-MAC shall use
reasonable efforts to assign RMA number(s) within 24 hours of a request by
Projectavision.
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16. DELIVERY SCHEDULE
All delivery dates for goods which are set forth in the purchase order
issued pursuant to this Agreement are estimated shipment dates from C-MAC's
point of shipment and C-MAC will use reasonable efforts to meet these delivery
dates. C-MAC shall not be liable for any loss or expense (consequential or
otherwise) incurred by Projectavision or Projectavision's customers if C-MAC
fails to meet the specified delivery schedule. In the event that there is a
possibility of a considerable delay in the delivery of the goods, C-MAC will
promptly notify Projectavision and C-MAC will use it's reasonable efforts to
bring the delivery schedule to a current status. However, should C-MAC fail to
deliver within 3 months after a pre-agreed scheduled delivery date
Projectavision has the right to cancel the order.
17. SPECIFICATION OF GOODS
C-MAC and Projectavision will mutually agree as to the specification of the
goods which will be delivered under any order pursuant to the terms of this
Agreement. The specification will be Identified in the purchase order and the
goods delivered will comply to the specification. C-MAC may, at its sole
discretion and without notice to Projectavision, make any change to the goods
sold under a purchase order issued pursuant to this Agreement which does not
affect the goods form, fit or function. If the change does affect form, fit, or
function, C-MAC agrees to notify Projectavision and C-MAC agrees not to ship any
goods which have been changed without Projectavision's approval. C-MAC agrees to
use reasonable efforts to notify Projectavision prior to C-MAC implementing any
changes which do not affect the good's form, fit or function.
18. INTENTIONALLY LEFT BLANK
19. FORCE MAJEURE
Neither Party shall be liable for any failure to perform, in whole, or in
part, any term of this Agreement, any supplemental agreement or deliver any
order that is caused by the occurrence of any contingency beyond its control,
including, but not limited to, any labor dispute, strike, war, act of war,
insurrection, sabotage, riot, civil commotion, act of public enemy, epidemic,
accident, fire, storm, earthquake, explosion, flood, drought or any other
natural disaster, act of any governmental authority, judicial action or
transportation embargo, provided such Party has exercised ordinary care in the
prevention thereof, and any such failure shall not be considered a breach of
this Agreement, any supplemental agreement or any order. Production and
deliveries may be allocated by C-MAC in a reasonable manner in the event of
shortage of goods.
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20. PERSONAL INJURY INDEMNIFICATION
Neither Party shall be responsible for any death, damage, injury or loss
suffered or incurred during visits to its facilities by any employee or
consultant of the other Party dispatched pursuant to this Agreement or any
supplemental agreement, except for any death, damage, injury or loss resulting
from the willful or grossly negligent act or omission of such Party, its agent,
employee or Consultant. Further, neither Party shall be responsible for any
costs, expenses or damages suffered or incurred by the other Party, or for any
claim, judgment or award against such other Party, or the defense thereof,
arising out of any actions, assistance or services of its employees or
Consultants hereunder, unless resulting from its own negligent act. Both Parties
agree to maintain general comprehensive liability, property damage and
automobile liability insurance, including contractual endorsement and products
hazardous coverage, in reasonable amounts covering the obligations set forth in
this Agreement and, upon request of the other Party, the one Party will provide
the other with a Certificate of Insurance indicating the amount of such
insurance.
21. WAIVER OF TERMS
Failure of either Party to enforce any term or condition of this Agreement
or supplemental agreement will not be deemed to be a waiver of such a term or
condition.
22. NON-ENFORCEMENT OF TERMS
Should any clause or provision of this Agreement or any supplemental
agreement be judicially declared invalid, unenforceable or void, such
declaration shall not have the effect of invalidating or voiding the remainder
of this Agreement or any supplemental agreement, and the remaining provisions of
this Agreement and any other supplemental agreement shall continue in full force
and effect as if such invalid, unenforceable or void provision had not been
included herein or therein.
23. ASSIGNMENTS
Neither Party may assign this Agreement or any other supplemental Agreement
in whole or in part without the prior written consent of the other Party. Any
purported assignment in violation of this provision shall be void.
24. PUBLICITY
(A) Neither Party shall publicly announce or otherwise disclose the terms
or existence of this Agreement or any supplemental agreement, advertise or
release any publicity in regards to this Agreement or any supplemental agreement
without securing the written consent of the other Party. This provision shall
survive the expiration, termination or cancellation of this Agreement or any
supplemental agreement issued hereunder subject to the provisions of section 24
(b) hereof.
(B) Notwithstanding the foregoing, C-MAC and Projectavision acknowledges
that they are public companies and agrees that either of them can:
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1) issue a press release disclosing the entering into of this agreement
subsequent to the execution hereof, and
2) from time to time disclose the existence of this agreement in public
filings in accordance with applicable federal, state and provincial laws.
Projectavision and C-MAC agrees to consult with the other party prior to issuing
the aforementioned press release.
25. CANCELLATION OF ORDERS
Projectavision may cancel without cause all or any part of the undelivered
portion of its purchase order(s) issued, pursuant to this Agreement by providing
90 days advance written notice to C-MAC if the units being canceled are standard
assemblies and C-MAC is capable of using the canceled product for other C-MAC
customers. In the event that the units being canceled are units which have been
special ordered specifically for Projectavision and can not reasonably be used
by other C-MAC customers, then cancellation charges shall be negotiated between
the Parties.
26. TERMINATION
In the event of any material breach of this Agreement by either Party,
other than a delayed delivery which is covered in section 16 of this Agreement,
if such breach is not corrected within thirty (30) days after written notice is
given to the Party in breach by the Party not in breach, then this Agreement may
be terminated immediately by written notice to the Party allegedly in breach by
the Party not in breach. Unless otherwise indicated in writing by the Party not
in breach, upon termination of this Agreement, all activities under this
Agreement shall terminate.
27. DISPUTE RESOLUTION
In the event of any dispute relating to this Agreement, any supplemental
agreement, or any order and if the individuals designated by the Parties are
unable to resolve such dispute through mutual agreement, the Parties agree that
the dispute shall be addressed in the following manner before either Party
proceeds with formal legal proceedings.
Either Party may initiate the dispute resolution process by sending formal
notice of same to the other Party. Within ten (10) days of receipt of such
notice, the Parties agree that each of them shall designate a senior executive
to address the dispute. These two senior executives shall endeavor to resolve
the dispute through good faith negotiation. In the event that the senior
executives are unable to agree to a resolution of the dispute within (30) days
of the receipt of the aforementioned notice of the dispute or any additional
extension of time which is mutually agreed to by the Parties, either Party may
elect to proceed with appropriate legal proceedings. Notwithstanding the
foregoing, neither Party shall be bound to follow the above procedures with
respect to disputes relating to Confidential Information, Inventions or
Intellectual Property Rights.
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28. PATENT INDEMNITY
C-MAC will defend any suit or proceeding brought against Projectavision
insofar as such suit or proceeding is based on a claim that the manufacturing
processes used by C-MAC to produce any goods manufactured and supplied by C-MAC
to Projectavision under this agreement constitute direct infringement of any
duly issued United States patent and C-MAC shall pay all damages and costs
finally awarded therein against Projectavision, provided that C-MAC is promptly
informed and furnished a copy of each communication, notice or other action
relating to the alleged infringement and is given authority, information and
assistance (at C-MAC's expense) necessary to defend or settle said suit or
proceeding. C-MAC shall not be obligated to defend or be liable for costs or
damages if the infringement arises out of compliance with Projectavision
specifications such as, without limiting the generalities of the foregoing for
incorporation of Projectavision technology including Texas Instruments DLP Light
Engine, designs, hardware and/or software in the goods, or from a combination
with, an addition to, or a modification of the goods after delivery by C-MAC,
or from use of goods, or any part thereof, in the practice of a process or for
infringement arising out of any other cause. C-MAC's obligation hereunder shall
not apply to any infringement occurring after Projectavision has received notice
alleging the infringement unless C-MAC has given written permission for such
continuing infringement.
If any suit or proceeding is brought against C-MAC based on a claim other than a
claim that the manufacturing processes used by C-MAC to produce any goods
manufactured and supplied by C-MAC under this agreement constitute direct
infringement of any duly issued United States patent (?), then the patent
indemnity stated herein above with respect to C-MAC shall reciprocally apply
with respect to Projectavision.
If the infringement by Projectavision is alleged prior to completion of delivery
of the goods under this Agreement, C-MAC may decline to make further shipments
without being in breach of this Agreement. In such a case, Projectavision agrees
to indemnify C-MAC for all damages and costs sustained by C-MAC because of said
infringement and/or production stoppage. Provided C-MAC has not been enjoined
from selling said good to Projectavision, C-MAC agrees to supply said goods to
Projectavision at Projectavision options, whereupon the patent indemnity
obligations herein stated with respect to C-MAC shall reciprocally apply with
respect to Projectavision, this indemnity by Projectavision applying to, but not
limited to, all damages awarded under 35 U.S.C. Sections 284 and 285.
The sale by C-MAC of the goods ordered hereunder does not grant to, convey or
confer upon Projectavision or Projectavision customers, or upon anyone claiming
under Projectavision, a license, expressed or implied under any patent rights or
any other rights of C-MAC covering or relating to any combination, machine or
process.
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29. WARRANTIES BY C-MAC
THE FOLLOWING EXPRESS, IMPLIED OR IMPLIED CONDITION OR PARTICULAR PURPOSE
PART OF C-MAC. ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES, STATUTORY, INCLUDING
BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A AND OF ANY
OTHER WARRANTY OBLIGATION ON THE PART OF C-MAC.
C-MAC shall extend the following warranty for the goods delivered to
Projectavision:
For the period stated within the C-MAC quotation after C-MAC delivers the
projector to Projectavision, C-MAC shall warrant the goods against faulty
workmanship or the use of defective materials and that the goods will conform
to the mutually agreed to written specification. C-MAC warrants that at the time
of delivery, C-MAC has title to the goods free and clear of any and all liens
and encumbrances. If such goods fail to conform to the warranty, C-MAC's sole
and exclusive maximum liability shall be (at C-MAC's option) to either repair,
adjust, replace the goods, or credit Projectavision account, for faulty goods
returned by Projectavision to C-MAC during the applicable warranty, provided
that:
i) C-MAC is promptly notified in writing upon discovery by
Projectavision that such goods failed to conform to the terms of the
written to the terms of the written specification with a detailed
explanation of any alleged deficiencies,
ii) Projectavision receives a Return Material Authorization Number
from C-MAC,
iii) such goods are returned freight collect to the address specified
by C-MAC,
iv) C-MAC's examination of the goods confirms that the alleged
deficiencies actually exist and were not caused by accident, misuse,
neglect, alteration, improper installation, unauthorized repair or
improper testing.
C-MAC shall have a reasonable period of time to make such repairs or
replace such goods. Goods repaired or replaced under warranty shall be
returned to Projectavision at C-MAC's expense. Continued use or
possession of the goods after expiration of the applicable warranty
period stated above shall be conclusive evidence that the warranty is
fulfilled to the full satisfaction of Projectavision.
C-MAC'S WARRANTIES AS HEREINABOVE SET FORTH SHALL NOT BE ENLARGED,
DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE
OR GROW OUT OF, C-MAC'S RENDERING OF TECHNICAL ADVICE AND/OR SERVICE
IN CONNECTION WITH PROJECTAVISION'S ORDER OF THE GOODS FURNISHED
HEREUNDER.
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30. RETURNS
For goods being returned to C-MAC, that C-MAC can not find fault with the
unit or C-MAC "Can Not Duplicate" (CND) the system(s) described by
Projectavision, then C-MAC will charge back to Projectavision and Projectavision
agrees to pay C-MAC a predetermined CND cost per unit evaluation charge.
All returned goods must have the bar code affixed to the goods. If C-MAC
determined that the bar code is missing or has been tampered with, warranty will
not be applicable to the goods and the goods will be immediately returned to
Projectavision without further action.
All goods required to be returned to C-MAC for either repair and/or warranty
action shall be consolidated at Projectavision for return to C-MAC at a
frequency no greater than once per week, unless otherwise agreed to by the
Parties. Goods will be consolidated and returned to Projectavision once a week
to a single point of receipt via ground transportation. All out-of-warranty
returned goods shall be addressed under a quotation from C-MAC.
Goods being returned for warranty action shall receive a sixty (60) day warranty
from the date of shipment from C-MAC or the balance of the remaining original
warranty period associated with the goods, whichever is greater.
31. LIMITATION OF LIABILITY
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR ANY SUBSEQUENT
MODIFICATION TO THIS AGREEMENT, THE LIABILITY OF EITHER PARTY, IF ANY, TO THE
OTHER PARTY AND THE SOLE AND EXCLUSIVE REMEDY HEREUNDER FOR EITHER PARTY FOR
DAMAGES OR ANY CLAIM OF ANY KIND WHATSOEVER WITH RESPECT TO THIS AGREEMENT, AND
ANY SUPPLEMENTAL AGREEMENT, FOR PRODUCTS OR WITH RESPECT TO ANY OF THE GOODS
COVERED THEREBY, AND REGARDLESS OF THE LEGAL THEORY OR THE DELIVERY OR
NON-DELIVERY OF PRODUCTS, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF
THE GOODS WITH RESPECT TO WHICH SUCH CLAIMS ARE MADE. UNDER NO CIRCUMSTANCES
WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF REMOVAL AND
REINSTALLATION OF ITEMS. LOSS OF GOODWILL, LOSS OF REVENUES OR PROFITS, LOSS OF
USE, INJURY TO PERSONS OR PROPERTY) ARISING OUT OF ANY BREACH OF THIS AGREEMENT
WHETHER SUCH DAMAGES ARE LABELED IN TORT, CONTRACT, OR INDEMNITY, EVEN IF EITHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
32. REGULATORY APPROVAL
Projectavision shall be responsible for obtaining any required governmental
and! or United States of America governmental approvals that may necessary under
each country's applicable laws.
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33. CHANGES
Subject to the provisions of section 17 hereof, once C-MAC acknowledges and
accepts a negotiated purchase order for the specific goods, no changes shall be
authorized unless authorized representatives of both Parties mutually agree in
writing to all aspects of the requested change.
34. BRANDING, ADVERTISING, TRADEMARKS AND TRADE NAMES
Both Parties acknowledge and agree that company trademarks and trade names
are paramount to the identification of the product or products being sold in the
marketplace. Each Party agrees that they will have no right, claim or interest
in any trademark or trade name which is owned by the other Party.
Projectavision will ensure that neither the C-MAC name nor the Trademarks
are displayed in any manner which may imply:
o that Projectavision is owned or controlled by C-MAC, in whole or in Party;
o that C-MAC is not the exclusive owner of C-MAC'S name and xxxx:
o that C-MAC and Projectavision are not separate and independent entities
In order to comply with the above, whenever Projectavision's name appears
in Projectavision documentation or advertising, together with the name "C-MAC
Electronic Systems, Inc." (and/or the Trademarks), Projectavision's name must
appear first and must be more prominent than either the name "C-MAC Electronic
Systems, Inc." or the Trademarks. C-MAC's name must be spaced from
Projectavision's name by a sufficient distance to avoid any suggestion that the
two companies are not separate and independent. Whenever the Trademarks are
displayed, they must be located near the name "C-MAC Electronic Systems, Inc."
in order to preserve a close association of the C-MAC name with the Trademarks.
C-MAC ownership of the Trademarks must be expressly stated in all advertising
and documentation, for example, in a footnote.
Each item that includes "C-MAC", the name "C-MAC Electronic Systems, Inc.",
or the Trademarks must be submitted to C-MAC for approval in advance of its
release or distribution.
C-MAC's name and Trademarks are to be associated with C-MAC, and with the
C-MAC products and services only, and are not to be associated with
Projectavision. For example, C-MAC's name, and the Trademarks must not appear on
Projectavision's business cards or letterheads, unless C-MAC ownership and their
association with the products or services also appears on the same item.
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In the event that C-MAC adopts a written general policy with regard to the
display of C-MAC logos on systems or higher level assemblies, Projectavision
shall implement such policies and require it of customers who are value added
Systems Suppliers, or similar value added resellers to implement such policies
if immediate implementation of such policies would cause an unreasonable
financial burden on Projectavision or any of its customers, C-MAC will cooperate
with Projectavision and/or any such customer to phase in such policies in a
manner to alleviate the financial impact of compliance.
Projectavision agrees that it will inform C-MAC of any possible trademark
infringement which comes to its attention. Projectavision will deliver to C-MAC
when requested any papers and assist in conducting any legal proceedings at
C-MAC's expense which C-MAC shall deem necessary, in order to protect its
trademarks and trade names.
Projectavision also agrees that it will not remove or alter any tag, label
or other identifying marks placed by C-MAC on the products.
35. APPLICABLE LAW AND JURISDICTION
This Agreement and all matters connected with its performance shall be
governed and construed in accordance with the laws of the State of New York,
USA, without giving effect to such state's conflict of laws principles. Each
Party hereby irrevocably consents to the jurisdiction of the federal and state
courts located in New York, NY, USA.
This Agreement, together with any supplemental agreements issued and
accepted hereunder, and the NDA, sets forth the entire understanding and
agreement between the Parties as to the subject matter hereof and supersedes all
previous communications; representations or agreements, either oral or written,
with respect to the subject matter hereof. Neither Party shall be bound by any
modification of this Agreement or supplemental agreement unless such
modification is in writing and signed by an authorized representative of the
Party to be bound thereby. No course of dealing or usage of trade or course of
performance shall be relevant to explain or supplement any term expressed in
this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives effective as of the latter of the dates
signed below.
C-MAC ELECTRONIC SYSTEMS, INC. PROJECTAVISION, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------- -------------------------------
Name: Xxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President/COO
Date: June 7, 1996 Date: June 6, 1996
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