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EXHIBIT 10.5
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PRINTHEAD PURCHASE AGREEMENT
BY AND BETWEEN
OYO GEOSPACE CORPORATION
AND
OYO CORPORATION
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NOVEMBER 10, 1995
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PRINTHEAD PURCHASE AGREEMENT
THIS PRINTHEAD PURCHASE AGREEMENT is made and entered into this 10th day
of November, 1995, by and between OYO Geospace Corporation, a Delaware
corporation ("Purchaser"), with its principal office located at 0000 X. Xxxxxxx
Xxxx, Xxxxxxx, Xxxxx 00000, and OYO Corporation, a company organized and
existing under the laws of Japan ("Seller"), with its principal office located
at Ichigaya Xxxxxxxx, 0-0, Xxxxx-Xxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000, Xxxxx.
W I T N E S S E T H :
WHEREAS, Purchaser is in the business of designing and manufacturing
instruments and equipment used in (i) the acquisition and processing of seismic
data and (ii) certain other applications
WHEREAS, Seller is in the business of providing engineering and
consulting services primarily for the investigation of the earth's subsurface;
and
WHEREAS, Seller desires to resell certain printheads (i) suitable for
incorporation into thermal plotters manufactured by Purchaser and (ii) acquired
from the manufacturer thereof to Purchaser, and Purchaser desires to purchase
printheads from Seller for use in Purchaser's line of thermal plotters;
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereby
agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. For the purposes of this Agreement, in addition to
the terms defined elsewhere herein, the following terms shall have the
following meanings:
(a) "Affiliate" means any Person that controls, is controlled by
or is under common control with any other Person;
(b) "Agreement" means this Printhead Purchase Agreement, as the
same may subsequently be amended, modified or supplemented in accordance
with its terms;
(c) "Encumbrances" means any mortgage, pledge, lien, claim,
encumbrance, charge or other security interest, option, defect or other
right of any third Person of any nature whatsoever, other than inchoate
mechanic's, materialmen's and similar liens arising in the ordinary
course of business;
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(d) "Manufacturer" means various Japanese corporations or U.S.
Affiliates thereof that manufacture Products or any successor Person of
any of such Persons that carries on the business of manufacturing the
Product;
(e) "Party" means either Purchaser or Seller, and "Parties"
means both Purchaser and Seller;
(f) "Person" means a natural person or any entity of any kind,
including (without limitation) joint stock companies, corporations,
partnerships, limited liability companies, governmental entities and any
other entity organized or formed under the law of any jurisdiction; and
(g) "Product" means printheads manufactured on the date hereof
by the Manufacturers or any improved or succeeding models of such
printheads that are used by, or are useful to, Purchaser in its
manufacture of thermal plotters.
1.2 Other Definitional Provisions.
(a) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall, unless a specific
provision is expressly referenced, refer to this Agreement as a whole and
not to any particular provision of this document, and Article references
contained in this Agreement are references to the Articles in this
Agreement, unless otherwise specified.
(b) All words used herein in the singular shall extend to and
include the plural, and all words used herein in the plural shall extend
to and include the singular.
(c) All words used in any gender shall extend to and include all
genders.
ARTICLE 2
SALE AND PURCHASE
2.1 Sale and Purchase Obligations.
(a) Seller agrees to sell to Purchaser, and Purchaser agrees to
purchase from Seller, all of Purchaser's requirements for the Product
during the term of this Agreement and in accordance with the terms and
provisions hereof.
(b) If Seller is unable to supply Purchaser with all of
Purchaser's requirements for the Product within 30 days of receipt of an
order from Purchaser, Purchaser may purchase the Products from another
source or manufacture such Products itself. If the sum of (i) the number
of Products held by Seller at the time it receives such order plus (ii)
the number of Products that Seller is able to acquire through the
exercise of reasonable commercial efforts during such 30-day period is
insufficient to satisfy the requirements of Purchaser
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and, to the extent applicable, Seller's other customers, Seller shall
allocate its supply of Products first to fill Purchaser's requirements of
the Product.
2.2 Orders and Deliveries. All orders, processing and deliveries of
the Product shall be made in accordance with the following procedures unless
otherwise agreed in writing by both Parties:
(a) An order may be placed at any time. Each order shall
specify the type and quantity of the Product ordered, the type of
packaging therefor, the requested delivery date, the destination of
delivery and the method of delivery.
(b) All shipments of Product shall be F.O.B. Seller's shipping
point.
(c) Seller shall maintain commercially reasonable insurance that
insures the value of Products shipped to Purchaser. Solely for the
purposes of this Article 2.2(c), the value of a Product shall be deemed
to be the Purchase Price.
(d) Seller acknowledges that delivery on or before the date
specified in Purchaser's order is essential and agrees to use its best
efforts to meet such specified delivery date.
(e) Each order and purchase of the Product will be subject to
the terms and conditions of this Agreement only, unless otherwise agreed
in writing by both Parties.
2.3 Pricing and Payment.
(a) The purchase price payable by Purchaser for each unit of the
Product (the "Purchase Price") shall be equal to (i) Seller's cost of
purchasing one unit of the Product from the Manufacturer plus (ii) 10% of
such per unit purchase cost.
(b) Seller shall provide Purchaser reasonable access to its
books and records to allow Purchaser to confirm Seller's purchasing
costs.
(c) Seller shall be responsible for the payment of all customs
charges and taxes related to the sale and purchase of the Products.
(d) Seller shall send Purchaser an invoice within 30 days after
the delivery of Products pursuant to any order setting forth the types
and quantities of Products shipped by Seller to Purchaser during the
previous month. Within 30 days after the receipt of such invoice,
Purchaser shall remit payment for such Products to Seller. All payments
shall be made in Japanese Yen.
2.4 Risk of Loss. The risk of loss from any casualty to the Products,
regardless of the cause, shall be on Seller up to the time of receipt of the
Products by
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Purchaser at Purchaser's delivery destination and until Purchaser has completed
any proper inspection without rejection of the Products.
2.5 Force Majeure. If any act or condition beyond the reasonable
control of Purchaser or Seller prevents, restricts or interferes with the
performance of this Agreement, and the Party then directly affected promptly
gives notice to the other Party, the directly affected Party will be
temporarily excused from performance to the extent of the prevention,
restriction or interference. The affected Party must, however, use its
reasonable effort to avoid or remove the causes of nonperformance and must
continue performance with the utmost dispatch when the causes are removed.
Causes beyond a Party's reasonable control include, without limitation, war,
acts of God, hurricanes, tornadoes, typhoons, earthquakes, embargoes, export,
shipping or remittance restrictions, cessations or interruptions for any reason
in the manufacture, or sale to Seller, by Manufacturers of the Product,
strikes, lockouts, accidents, fires, riot, delays or defaults caused by
carriers, floods, governmental seizure, control or rationing or compliance with
any law, ruling, order, regulation, requirement, or instruction of any
national, federal, state, provincial or municipal government, or any department
or agency thereof.
2.6 Indemnification. Seller agrees to defend, indemnify and hold
harmless Purchaser, its affiliates and their respective directors, officers,
employees, agents, successors and assigns from and against any and all claims,
losses, damages, liabilities, reasonable counsel fees and costs incident
thereto incurred by or asserted against Purchaser as a result of damage to the
property of Purchaser or others, or personal injuries to or injuries resulting
in the death of any person or persons, including directors, officers, employees
and agents of Purchaser relating to the Products; provided, however, Seller
shall not have any liability (whether direct or indirect, in contract, tort or
otherwise) to Purchaser unless such claims, losses, damages, liabilities,
counsel fees or costs are determined, in a final judgment by a court of
competent jurisdiction (not subject to further appeal), to have resulted
primarily and directly from the gross negligence or willful misconduct of
Seller or its directors, officers, employees or agents.
2.7 Warranties. Seller will, in the case of all Products sold by it
to Purchaser, use its best efforts to secure for Purchaser the benefit of all
warranties Seller receives in connection with its original purchase of such
Products.
ARTICLE 3
TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence on the date
hereof and continue for a period of one (1) year after such date (the "Initial
Term"). Subject to the rights of early termination set forth in this
Agreement, this Agreement shall be automatically renewed on a year-to-year
basis after the Initial Term (the term of each such renewal referred to as a
"Renewal Term"), unless either Party provides written notice of termination to
the other Party on or before ninety (90) days prior to the end of the Initial
Term or any Renewal Term.
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3.2 Termination. Either Party may terminate this Agreement by giving
written notice to the other Party after the occurrence of one of the following
events:
(a) any breach of this Agreement by the other Party that, if
capable of being cured, is not cured within 60 days after written notice
of such breach is received by the breaching Party;
(b) any material breach of this Agreement by the other Party
that is not capable of being cured;
(c) initiation of liquidation, dissolution, reorganization,
insolvency, bankruptcy or similar proceedings by or against the other
Party; or
(d) the appointment of a trustee or receiver for the other
Party.
3.3 Termination Not Exclusive Remedy. The termination of this
Agreement shall not release either Party from its liability to the other Party
under this Agreement arising from a breach of this Agreement.
3.4 Survival. Each of the Parties' obligations under this Agreement
shall survive the expiration or termination of this Agreement to the extent
such obligations should have been performed during the term of this Agreement
and were not so performed. Notwithstanding the expiration or termination of
this Agreement, this Agreement shall remain in full force in effect until each
Party has discharged all of its obligations hereunder.
ARTICLE 4
CONFIDENTIAL INFORMATION
4.1 Non-disclosure. Either Party may from time to time provide to the
other Party certain advice, technical information, know-how, and other
proprietary data and information with respect to the Products. Inasmuch as
various of these materials and advice (all of which will herein be referred to
as the "Confidential Information") contain confidential information and trade
secrets, it is hereby agreed that any Confidential Information that one Party
discloses to the other is valuable, proprietary property belonging to the
disclosing Party, and the receiving Party agrees that it will neither use nor
disclose to any third party (except in the performance of its duties hereunder)
any Confidential Information, except on prior written consent of the other
Party.
4.2 Return of Information. The Parties agree, either upon the
termination of this Agreement or upon request, to surrender to the other all
documentary material including Confidential Information, price lists,
catalogues, technical literature, sales literature, samples and any other
documents, papers or other properties of the other Party, however previously
supplied.
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4.3 Survival of Article. The obligations of the Parties pursuant to
this Article shall continue in full force and effect after the termination of
this Agreement regardless of how this Agreement is terminated.
ARTICLE 5
GOVERNING LAW
THE PARTIES ACKNOWLEDGE THAT THE TRANSACTIONS WHICH ARE THE SUBJECT
MATTER OF THIS AGREEMENT BEAR A REASONABLE RELATION TO THE STATE OF TEXAS AND
AGREE THAT THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND ALL
DISPUTES HEREUNDER SHALL BE GOVERNED BY, INTERPRETED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS.
ARTICLE 6
ARBITRATION
The Parties agree that any and all disputes arising in connection with
this Agreement including, but not limited to, the validity of this provision or
the performance by either Party of any obligations, commitments or promises
hereunder, which cannot be resolved through good faith negotiations to the
mutual satisfaction of both Parties within thirty (30) calendar days (or such
longer period as may be mutually agreed upon by the Parties) after the
complaining Party has notified the other Party of the complaint, shall be
submitted to final and binding arbitration. Any such dispute, claim or
disagreement subject to arbitration pursuant to the terms of this paragraph
shall be resolved by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA Rules"). Within ten
days of the initiation of an arbitration hereunder, each Party will designate
an arbitrator pursuant to the AAA Rules. The appointed arbitrators will
appoint a neutral arbitrator from the panel in the manner prescribed in the AAA
Rules. The Parties agree that the decision of the arbitrators selected
hereunder will be final and binding on both Parties. The place of arbitration
shall be Houston, Texas, and each Party shall pay its individual costs and fees
arising therefrom. Judgment upon the award resulting from arbitration may be
entered in any court having jurisdiction for direct enforcement, or any
application may be made to a court for a judicial acceptance of the award and
an order of enforcement, as the case may be.
ARTICLE 7
GENERAL PROVISIONS
7.1 Notices. To be effective, all notices, consents or communications
required (other than routine orders and invoices for Products, which shall be
delivered in accordance with the customary manner as in the case of orders and
invoices by Purchaser and Seller in the ordinary course of their businesses)
shall be in writing and shall be delivered by hand or sent by first-class
prepaid certified or registered mail, return receipt requested, overnight
delivery service or facsimile (confirmed by first-class
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prepaid letter sent within 24 hours of dispatch) to the Parties at their
respective addresses or facsimile numbers and to the attention of the persons
set forth below. Any Party may change its address or facsimile number for
purposes hereof by notice to all other Parties in the manner provided above.
Notice will be effective upon receipt.
Purchaser
OYO Geospace Corporation
0000 X. Xxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Mr. C. Xxxxxx Xxxxx
Seller
OYO Corporation
Ichigaya Xxxxxxxx
0-0, Xxxxx-Xxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx 000
Xxxxx
Facsimile: 00-0-0000-0000
Attention: Xx. Xxxxxxxxx Xxxxxxxxx
7.2 Severability. Should any provision of this Agreement be held
unenforceable or invalid, then the Parties hereto agree that such provision
shall be deemed modified to the extent necessary to render it lawful and
enforceable, or if such a modification is not possible without materially
altering the intention of the Parties hereto, then such provision shall be
severed from this Agreement. In such case the validity of the remaining
provisions shall not be affected and this Agreement shall be construed as if
such provision were not contained herein.
7.3 Headings. All headings used herein are for the convenience of
reference only, do not constitute substantive provisions of this Agreement, and
shall not be used in construing the meaning or intent of the terms or
provisions hereof.
7.4 Assignment. This Agreement and the rights granted hereunder
shall not be assigned in whole or in part, either voluntarily, by operation of
law or otherwise, without the prior written consent of both Parties, except
that this Agreement may be assigned to Affiliates of a Party without prior
written consent from the other Party. Any attempt to make an assignment
without the consent required hereunder shall be null and void and may be
treated by the other Party as a breach of a material provision of this
Agreement.
7.5 Beneficiaries. This Agreement shall be binding on and inure
to the benefit of the Parties and their respective successors and permitted
assigns. This Agreement is intended solely for the benefit of Purchaser and
Seller and their respective successors and permitted assigns.
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7.6 Entire Agreement. This Agreement (including any other
referenced documents) constitutes the entire agreement between Purchaser and
Seller concerning the subject of this Agreement. This Agreement supersedes all
prior and contemporaneous agreements, communications, statements,
representations and understandings, whether oral or written, on this subject.
7.7 Amendments. Purchaser and Seller, by mutual agreement in
writing, may amend, modify or supplement this Agreement. No modification or
amendment of this Agreement is effective unless made in writing and signed by
the Party to be bound, with such written modification or amendment stating the
expressed intent to modify this Agreement. A course of dealing or performance
is not a modification unless expressed in an appropriate written document and
signed by the Party to be bound.
7.8 No Waiver of Rights. A Party's failure in one or more
instances to exercise or enforce any right provided by this Agreement or by law
does not waive its right to exercise the right in any later instance. No
waiver of any breach of this Agreement shall be held to constitute a waiver of
any other or subsequent breach. To be effective, a waiver must be expressly
written and signed by the Party to be bound. A course of dealing or
performance is not a waiver unless ratified in writing by the Party to be
bound.
7.9 Import/Export Regulations. The Parties agree that they will
comply with the import and export laws and regulations of the United States of
America and will not export or re-export any article, product, data or
information to any proscribed country listed pursuant to or under such laws and
regulations.
7.10 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each Party and delivered to the other Party. Delivery of this Agreement by
a Party may be effected by sending the other Party a facsimile copy of this
Agreement as executed by the delivering Party.
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement
as of the date first written above.
OYO GEOSPACE CORPORATION
By: /s/ C. XXXXXX XXXXX
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C. Xxxxxx Xxxxx
Executive Vice President and
Chief Operating Officer
OYO CORPORATION
By: /s/ XXXXXXXXX XXXXXXXXX
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Xxxxxxxxx Xxxxxxxxx
Joint General Manager
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