Microsoft Contract No.: 0 113 99
PROCUREMENT AGREEMENT
THIS PROCUREMENT AGREEMENT (this "Agreement") is made as of the 13th day of
January, 1999 by and between Microsoft Corporation, a Washington corporation
having its main office and place of business at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX
00000-0000 (hereinafter referred to as "MICROSOFT") and Xxxxxx Electronics
Corporation, a New York corporation having its main office and place of business
at 00 Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, XX 00000 (hereinafter referred to as
"XXXXXX").
RECITALS
1. MICROSOFT develops, markets, licenses and supports, among other things,
the speech-enabled Encarta Interactive English Learning software products (the
"Encarta Interactive English Learning Software Products"), which Encarta
Interactive English Learning Software Products will be marketed, distributed and
sold in various stockkeeping units for various markets and in various languages
(collectively, the "Encarta Interactive English Learning SKUs"). MICROSOFT
desires to procure and bundle ANDREA's NC8 microphone headset (each, an "NC8
Headset"; collectively, "NC8 Headsets") with certain Encarta Interactive English
Learning SKUs. Further, MICROSOFT desires to obtain from XXXXXX upgrade
brochures (the "Upgrade Brochures") relating to Xxxxxx headsets that are
upgrades from the NC8 Headset and other XXXXXX products (the "Xxxxxx Upgrade
Products") for inclusion in certain Encarta Interactive English Learning SKUs.
2. XXXXXX develops, markets and sells, among other products, headsets for
use with speech-enabled personal computer applications software, including,
among others, various models of the NC8 Headset. XXXXXX desires to sell NC8
Headsets to MICROSOFT for bundling with Encarta Interactive English Learning
SKUs. Further, XXXXXX desires to provide to MICROSOFT and MICROSOFT's designated
agents the Upgrade Brochures for inclusion in certain Encarta Interactive
English Learning SKUs. Further, XXXXXX may provide consumer discounts to Encarta
Interactive English Learning SKU users upgrading from NC8 Headsets to XXXXXX
Upgrade Products.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, and subject to the terms and conditions set forth
herein, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Actual Number of Units covered by Purchase Orders" shall have the
meaning ascribed thereto in Section 3.8.
1.2 "Additional Promotional Literature" shall have the meaning ascribed
thereto in Section 2.4.
1.3 "Xxxxxx Upgrade Products" shall have the meaning ascribed thereto in
Recital No. 1.
1.4 "Xxxxxx Names, Marks and Materials" shall have the meaning ascribed
thereto in Section 2.2.
1.5 "Xxxxxx IP Rights" shall mean those intellectual property rights,
including copyrights, patents, trade secrets, trademarks, service
marks and other proprietary rights owned or otherwise controlled by
XXXXXX and that are specifically embodied in the NC8 Headsets.
1.6 "Xxxxxx Upgrade Products" shall have the meaning ascribed thereto in
Recital No. 1.
1.7 "Claim" shall have the meaning ascribed thereto in Section 8.2(a).
1.8 "Confidential Information" shall have the meaning ascribed thereto in
Section 7. 1.
1.9 "Designated Microsoft Subsidiaries and Third Party Subcontractors"
shall mean Subsidiaries of Microsoft and other third parties with whom
MICROSOFT has contracted to manufacture and distribute Encarta
Interactive English Learning Software Products and which Subsidiaries
or other third parties MICROSOFT identifies to XXXXXX in one or more
written notices from time to time during the term of this Agreement.
1.10 "Encarta Interactive English Learning SKU - NC8 Headset Bundles" means
Encarta Interactive English Learning SKUs into which NC8 Headsets have
been bundled.
1.11 "Encarta Interactive English Learning SKUS" shall have the meaning
ascribed thereto in Recital No. 1.
1.12 "Encarta Interactive English Learning Software Products" shall have
the meaning ascribed thereto in Recital No. 1.
1.13 "FOB" shall have the customary and usual commercial meaning of "Free
on Board".
1.14 "Forecast Number of Units covered by Purchase Orders" shall have the
meaning ascribed thereto in Section 3.8.
1.15 "Licensed Activities" shall have the meaning ascribed thereto in
Section 2.2.
1.16 "Microsoft IP Rights" shall mean those intellectual property rights,
including copyrights, patents, trade secrets, trademarks, service
marks and other proprietary rights owned or otherwise controlled by
MICROSOFT and that are specifically embodied in the Encarta
Interactive English Learning Software Products and the Encarta
Interactive English Learning SKUs.
1.17 "NC8 Headset" shall have the meaning ascribed thereto in Recital No.
1.
1.18 "NC8 Headset Documentation" shall have the meaning ascribed thereto in
Section 2.1.
1.19 "Product Warranty" shall have the meaning ascribed thereto in Section
2.3.
1.20 "Purchase Order" shall have the meaning ascribed thereto in Section
3.1.
1.21 "Subsidiary" of any party shall mean any legal entity, more than fifty
percent (50%) of whose outstanding shares or securities representing
the right to vote for the election of directors or other managing
authority are, now or hereafter, owned or controlled, directly or
indirectly, by that party (but only so long as such conditions exist).
1.22 "Upgrade Brochures" shall have the meaning ascribed thereto in
Recital No. 1.
2. PROCURED PRODUCT
2.1 Headsets. XXXXXX hereby agrees on the terms set forth herein to sell
the NC8 Headset models specified in Schedule 2.1 to this Agreement,
together with the related documentation and other materials specified
in Schedule 2.1 (the "NC8 Headset Documentation"). The parties agree
that Schedule 2.1 may be revised from time to time during the term of
this Agreement upon the mutual agreement of the parties.
2.2 Trade Names, Trade Marks and Copyrighted Materials. XXXXXX hereby
grants to MICROSOFT and Designated Microsoft Subsidiaries and Third
Party Subcontractors, for whose performance and satisfaction of the
terms and conditions of this Agreement MICROSOFT shall be liable, a
non-transferable, non-exclusive, right and license during the term of
this Agreement to use the trade names, trade marks and copyrighted
materials of XXXXXX identified in Schedule 2.2 attached hereto (the
"Xxxxxx Names, Marks and Materials") in connection with (i) the
bundling of NC8 Headsets with the Encarta Interactive English
Learning SKUs and subsequent marketing, distribution and sale of such
bundled products and (ii) the inclusion of the Upgrade Brochures in
Encarta Interactive English Learning SKUs that are subsequently
marketed, distributed and sold by Microsoft. Such activities as are
licensed under this Section 2.2 are referred to as the "Licensed
Activities". Microsoft acknowledges and agrees that the only rights
transferring from XXXXXX to MICROSOFT pursuant to this Agreement are
the license rights specifically granted in this Section 2.2. Nothing
in this Agreement is intended to transfer title to any Xxxxxx IP
Rights or to take away from XXXXXX its ownership rights in the Xxxxxx
IP Rights.
2.3 Product Warranty. XXXXXX covenants that each and every NC8 Headset
delivered to MICROSOFT for the purpose of bundling with Encarta
Interactive English Learning SKUs shall be accompanied by and
packaged with a copy of the product warranty that XXXXXX ordinarily
and customarily provides to purchasers of NC8 Headsets and set forth
in Schedule 2.3 attached hereto (such product warranty in such form
being referred to as the "Product Warranty"). MICROSOFT covenants
that each and every NC8 Headset bundled with Encarta Interactive
English Learning SKUs shall be bundled as it was received by
MICROSOFT in packaging that contains the Product Warranty and any
other documentation XXXXXX elects to include in such packaging.
MICROSOFT shall incur no liability in the event any Encarta
Interactive English Learning SKU - NC8 Headset Bundle contains an NC8
Headset that was not packaged by XXXXXX with a Product Warranty or
other documentation.
2.4 Promotional Literature. In addition to the printed materials provided
by XXXXXX to MICROSOFT relating to the NC8 Headsets described in
Schedule 2.1 and the Upgrade Brochures, XXXXXX shall permit MICROSOFT
and Designated MICROSOFT Subsidiaries and Third Party Subcontractors
to insert additional promotional literature about the NC8 Headsets
and ANDREA's other products ("Additional Promotional Literature")
into the Encarta Interactive English Learning SKU packaging and
mailings made by MICROSOFT to MICROSOFT customers and prospective
customers; provided however, that XXXXXX shall have the right to
review any Additional Promotional Literature reasonably prior to the
publication and distribution thereof, and the right to prohibit the
use of any Additional Promotional Literature that XXXXXX reasonably
believes could damage the image or customer appeal of XXXXXX or any
of ANDREA's products, or that is misleading about the capabilities,
use or function of the NC8 Headsets or ANDREA's other products or the
customer's rights to the NC8 Headsets or ANDREA's other products.
2.5 Export. MICROSOFT acknowledges that any export from the United States
of NC8 Headsets, and all technical data related thereto, is subject
to regulation under United States laws, including, without
limitation, the Export Administration Act of 1979 and regulations
issued thereunder. MICROSOFT agrees to: (a) comply with applicable
export or asset control laws of the United States and regulations
applicable to such exports; (b) comply, and take all permissible
measures to insure its customers' compliance with, the applicable
provisions of said laws and regulations, including, without
limitation, record keeping requirements; and (c) refrain from selling
or otherwise distributing NC8 Headsets, and all technical data
related thereto, in violation of such laws and regulations.
3. PURCHASE ORDERS, PURCHASE PRICE, PAYMENT, DELIVERY AND PROCUREMENT
FORECASTS
3.1 Minimum Amount. Each purchase order for an NC8 Headset model
specified in Schedule 2.1 shall be for a minimum of [Confidential
Treatment Requested] and shall be set forth in writing and delivered
to XXXXXX by either electronic or hard copy in the form set forth in
Schedule 3.1 attached to this Agreement (each a "Purchase Order";
collectively, the "Purchase Orders"). Only procurement personnel of
MICROSOFT, its subsidiaries or Microsoft-appointed subcontractors,
the identities of whom shall be designated in writing to XXXXXX,
shall have the authority to issue Purchase Orders under the terms and
conditions of this Agreement. MICROSOFT shall have the right to
change or cancel any Purchase Order, provided that MICROSOFT notifies
XXXXXX of the change or cancellation no later than [Confidential
Treatment Requested] prior to the order shipment to MICROSOFT by
XXXXXX, and further provided that if and whenever MICROSOFT changes
or cancels any Purchase Order, MICROSOFT shall thereupon pay to
XXXXXX a stock handling charge equal to [Confidential Treatment
Requested] for each NC8 Headset subject to such change or
cancellation. Should MICROSOFT choose to change any Purchase Order
line item, MICROSOFT shall be required to submit a new Purchase
Order to XXXXXX, indicating which line item(s) are changed. Line
item changes shall not affect the remaining items on MICROSOFT's
Purchase Order. Should MICROSOFT choose to cancel a Purchase Order,
MICROSOFT must provide XXXXXX with a written cancellation request.
3.2 Purchase Price. MICROSOFT shall pay to XXXXXX for each delivery of
NC8 Headsets purchased by MICROSOFT under this Agreement the total
(the "Invoice Total") of: (i) the product of the purchase price set
forth in Schedule 3.2 for each NC8 Headset, which such purchase price
is quoted FOB shipping point, multiplied by the number of NC8
Headsets in such delivery; (ii) any applicable discounts or
surcharges in accordance with Sections 3.3 or 3.5, as the case may
be; and (iii) the charges for freight, handling, insurance and taxes
related to shipment of such NC8 Headsets to Microsoft's designated
manufacturing facility.
3.3 Discount. Any Purchase Order for [Confidential Treatment Requested] of
any NC8 Headset model set forth in Schedule 2.1 shall entitle
MICROSOFT to a purchase price discount of [Confidential Treatment
Requested] from the purchase price that would otherwise apply to such
Purchase Order.
3.4 [Confidential Treatment Requested].
3.5 Delivery. All deliveries of NC8 Headsets covered by Purchase Orders
received by XXXXXX from MICROSOFT, its subsidiaries and its
authorized subcontractors under this Agreement shall be made FOB
shipping point. Each delivery of the NC8 Headset model covered by a
Purchase Order shall be made by the [Confidential Treatment Requested]
after receipt by XXXXXX of such Purchase Order, provided that the
Actual Number of Units covered by Purchase Orders (as defined in
Section 3.8) for such NC8 Headset model within the month such
Purchase Order was received is no more than [Confidential Treatment
Requested] of the Forecast Number of Units to be covered by Purchase
Orders (as defined in Section 3.8) for such NC8 Headset model for
such month. For all units purchased in excess of [Confidential
Treatment Requested] of such Forecast Number of Units to be covered
by Purchase Orders, delivery shall be made by the [Confidential
Treatment Requested] after receipt of such Purchase Order. All
deliveries hereunder shall be in bulk form and shall be made to such
locations as are specified by MICROSOFT or its Designated
Subsidiaries and Third Party Subcontractors. Such deliveries shall
be at MICROSOFT's expense and through such carriers as MICROSOFT or
its Designated Subsidiaries and Third Party Subcontractors shall
specify. XXXXXX agrees that, if requested by MICROSOFT or its
Designated Subsidiaries and Third Party Subcontractors, XXXXXX will
arrange for such deliveries through such carriers as MICROSOFT or
its Designated Subsidiaries and Third Party Subcontractors may
approve, and the cost of such deliveries shall be charged to
MICROSOFT in accordance with the schedule of delivery and handling
charges specified in Schedule 3.2.
3.6 Title. Title to NC8 Headsets purchased hereunder shall pass to
MICROSOFT upon delivery FOB shipping point; provided that XXXXXX shall
retain a security interest in such goods and the proceeds therefrom
until XXXXXX receives full payment for such goods, and MICROSOFT
agrees to execute any and all instruments required to perfect such
security interest.
3.7 Payment. Payment of the Invoice Total to XXXXXX by MICROSOFT in
respect of the NC8 Headsets covered by any Purchase Order submitted
by MICROSOFT, its subsidiaries or its authorized subcontractors under
this Agreement shall be made in the following manner: [Confidential
Treatment Requested] . Payment shall be made in U.S. dollars. Any
payments made after the due date shall bear interest at a rate of
[Confidential Treatment Requested] per month.
3.8 Procurement Forecasts.
(a) MICROSOFT shall provide to XXXXXX prior to the end of each calendar
month during the Term of this Agreement a rolling forecast of the
quantities of the NC8 Headset models specified in Schedule 2.1 and
Upgrade Brochures for which Microsoft expects to submit Purchase
Orders during the three calendar months immediately following such
calendar month end; provided, however, that MICROSOFT shall have no
obligation to submit Purchase Orders for such quantities, and shall
have no obligation to purchase any NC8 Headsets during any calendar
month period. Further, nothing shall obligate MICROSOFT to combine
Encarta Interactive English Learning Software Products with NC8
Headsets and/or Upgrade Brochures, and nothing shall be construed or
intended to prevent or limit MICROSOFT from making or entering into
any agreements with other persons, organizations or entities with
respect to activities and/or products which are like or similar to
those which are the subject of this Agreement.
(b) For each calendar month during the Term of this Agreement,
beginning with March 1999, a comparison shall be made between the
actual aggregate number of units covered by Purchase Orders for any
NC8 Headset model specified in Schedule 2.1 received during such month
(the "Actual Number of Units covered by Purchase Orders") and the
aggregate number forecast for that month at the end of the calendar
month two months prior to the calendar month for which such
comparison is being made (the "Forecast Number of Units to be covered
by Purchase Orders"). (For example, the first such comparison to be
made would be for March 1999. For each NC8 Headset model specified in
Schedule 2.1, the Actual Number of Units covered by Purchase Orders
for March 1999 would be the actual aggregate number of units covered
by Purchase Orders for that NC8 Headset model received during March
1999, and the Forecast Number of Units to be covered by Purchase
Orders for March 1999 would be the January 1999 forecast of such
number.)
(c) For each NC8 Headset model specified in Schedule 2.1 for each calendar
month during the Term of this Agreement, beginning with March 1999,
(i) in the event that the Actual Number of Units covered by Purchase
Orders is at least [Confidential Treatment Requested] of the
Forecast Number of Units to be covered by Purchase Orders,
MICROSOFT shall be entitled to a [Confidential Treatment
Requested] discount from the undiscounted purchase price set
forth in Schedule 3.2 for the units of such NC8 Headset model
actually purchased for up to [Confidential Treatment Requested]
of the Forecast Number of Units to be covered by Purchase Orders
and the purchase price for the units of such NC8 Headset model
in excess of [Confidential Treatment Requested] of the
Forecast Number of Units shall be such undiscounted purchase
price set forth in Schedule 3.2, and
(ii) in the event that the Actual Number of Units covered by Purchase
Orders is below [Confidential Treatment Requested] of the
Forecast Number of Units to be covered by Purchase Orders, XXXXXX
shall be entitled to a [Confidential Treatment Requested]
surcharge applied against the original purchase price for the
units of such NC8 Headset model actually purchased.
3.9 Upgrade Brochures. MICROSOFT shall specify to XXXXXX at least
[Confidential Treatment Requested] in advance the number of Upgrade
Brochures that it intends to insert in Encarta Interactive English
Learning SKUs during each month during the term of this Agreement.
XXXXXX shall be responsible for arranging for the printing and
delivery of the Upgrade Brochures, and MICROSOFT, its subsidiaries
and/or its appointed subcontractors shall be responsible for
inserting the Upgrade Brochures in the Encarta Interactive English
Learning SKUs, subject to the allocation of expenses set forth in
Section 4.6.
3.10 Upgrades Commission. In respect of each sale of an XXXXXX Upgrade
Product that XXXXXX receives and that is tracked by or for XXXXXX to
an Upgrade Brochure inserted in an Encarta Interactive English
Learning SKU, XXXXXX shall pay to MICROSOFT a sales commission equal
to [Confidential Treatment Requested] of the purchase price received
by XXXXXX from such sale, which such sales commission shall be paid to
MICROSOFT [Confidential Treatment Requested] following the end of the
quarter in which XXXXXX receives payment for such Xxxxxx Upgrade
Product. XXXXXX shall maintain effective procedures for the tracking
of each Upgrade Product sale. XXXXXX agrees to keep all proper records
and books of account and all proper entries therein relating to the
sale of such Upgrade Products. XXXXXX further agrees to provide
MICROSOFT and/or MICROSOFT's independent auditors at Microsoft's
request and expense, copies of applicable records in order to verify
commissions rendered hereunder. If an audit shows that XXXXXX has
underpaid commissions to MICROSOFT by an amount equal to or greater
than [Confidential Treatment Requested] of the commissions owed,
XXXXXX shall bear all expenses reasonably incurred by MICROSOFT in
connection with the audit, provided that the amount of such
commissions owed is at least [Confidential Treatment Requested].
4. PACKAGING, RETURNS, REPLACEMENTS, WARRANTY SERVICE
4.1 Responsibility. MICROSOFT shall be responsible, at its expense, for
packaging (i) into the Encarta Interactive English Learning SKUs, the
NC8 Headsets (including the NC8 Headset Documentation) purchased by
MICROSOFT hereunder and (ii) into the Encarta Interactive English
Learning SKUs, the Upgrade Brochures obtained from XXXXXX.
4.2 Packaging Method. The method of packaging NC8 Headsets into the
Encarta Interactive English Learning SKUs shall be reviewed by XXXXXX
prior to implementation of such method, and any change to such method
shall be reviewed by XXXXXX prior to implementation of such change.
XXXXXX shall have the right to prohibit the use of any element of
such packaging or procedure comprising such method if XXXXXX
reasonably believes (i) such element or procedure could damage the
NC8 Headsets, the image or customer appeal of XXXXXX or the NC8
Headsets', or ANDREA's rights in the technology comprising the NC8
Headsets or the XXXXXX Names, Marks and Materials, or (ii) such
element is misleading about the capabilities, use or function of the
NC8 Headsets.
4.3 Product Warranty. All Encarta Interactive English Learning SKUs
containing NC8 Headsets distributed by MICROSOFT shall include all
written documentation with which NC8 Headsets are individually
packaged. It shall be ANDREA's responsibility to include a written
copy of the Product Warranty in such documentation.
4.4 Not A Sale. Subject to Section 2.4, none of the information or
promotional materials concerning the NC8 Headsets or Andrea's other
products created solely by MICROSOFT or Designated MICROSOFT
Subsidiaries and Third Party Subcontractors shall state or imply that
the intellectual property of XXXXXX comprising the NC8 Headsets or
Andrea's other products is being sold outright to or by MICROSOFT or
any manufacturer, distributor, reseller or end-user, but shall in all
cases refer to the grant of "a license to use" such intellectual
property.
4.5 Intellectual Property Markings. MICROSOFT shall not alter, obscure or
remove any copyright, trademark, service xxxx, patent, patent pending,
or other proprietary rights or legal notice already contained on or in
the NC8 Headset, any of the NC8 Headset Documentation or the Upgrade
Brochures, any of which such notices may be revised or replaced from
time to time.
4.6 Expenses.
(a) MICROSOFT shall be responsible for the payment of all the costs and
expenses of [Confidential Treatment Requested].
(b) XXXXXX shall be responsible for the costs and expenses of
[Confidential Treatment Requested].
5. COOPERATION
The parties shall cooperate with each other to their mutual benefit as
follows:
5.1 Web Site Links. Each of MICROSOFT and XXXXXX will incorporate in its
own web site a hyperlink to the other's web site for the purpose of
promoting Encarta Interactive English Learning SKUs, NC8 Headsets and
the Xxxxxx Upgrade Products. In furtherance hereof, each party may
use the other party's logo(s) and/or logo link(s) identified in
Schedule 5.1 hereto, provided such use is in compliance with such
other's party's logo guidelines set forth in Schedule 5.1 or any
other replacement guidelines that such other party may provide to the
first party from time to time during the Term of this Agreement. The
MICROSOFT logo link(s) shall link back directly to a MICROSOFT URL
provided to XXXXXX by MICROSOFT. The XXXXXX logo link(s) shall link
back directly to an XXXXXX URL provided to MICROSOFT by XXXXXX.
5.2 Joint Promotion. MICROSOFT and XXXXXX will promote their Joint
relationship contemplated hereby and the complementarity of the NC8
Headsets (and the Xxxxxx Upgrade Products) and the Encarta
Interactive English Learning SKUs through, by way of example only,
press releases, trade shows agreed upon by the parties, and in
relevant collateral material. Each party shall provide the other
party with reasonably prior opportunity to review and comment on such
press releases, trade show material and collateral material in
furtherance of such promotional efforts.
5.3 Customer Service; Returns and Product Warranty Service.
(a) MICROSOFT shall be responsible for and shall bear [Confidential
Treatment Requested]. Each party agrees to make its personnel
available to the other for reasonable consultation during normal
business hours and at no charge to the other.
(b) XXXXXX shall be responsible for and shall bear [Confidential Treatment
Requested].
(c) Replacements for any damaged or malfunctioning NC8 Headsets
delivered to XXXXXX or destroyed in accordance with clause (iii)
of subsection 5.3(b) shall be received at the locations
designated by MICROSOFT, its subsidiaries or appointed
subcontractors, as the case may be, as promptly as commercially
reasonable but not later than the [Confidential Treatment
Requested] after XXXXXX receives the damaged or malfunctioning
NC8 Headset in respect of which such replacement is being made
or, in the case of any NC8 Headset that XXXXXX requests to be
destroyed, XXXXXX receives notice that such NC8 Headset is
damaged or malfunctioning.
(d) [Confidential Treatment Requested] shall, at its expense, during
the term of this Agreement maintain a service and support
organization for each of the markets set forth in Schedule 5.3(d)
so that end users in any such market of the NC8 Headsets
purchased hereunder may contact [Confidential Treatment
Requested] or its representatives using a local or tollfree
telephone number in that market for the purpose of obtaining
service and support in respect of such NC8 Headsets from persons
who speak the dominant language in that market as set forth in
Schedule 5.3(d).
5.4 Customer Names, Demographics and related Customer Database
Information. Each party agrees that it will include its own end user
product registration cards for its respective products contained in
Encarta Interactive English Learning SKU - NC8 Headset Bundles. Each
party further agrees that it will share with each other its listing
of registered end users from the purchase of such product bundles.
Further, each party agrees that its will not contact any of the other
party's registered end users without first obtaining the approval of
the other party. With respect to each party's listing of registered
end users referred to in the immediately preceding sentence, without
requiring either party to alter the manner in which it collects
information from its customers and end users and to the extent that
it is commercially reasonable, each party shall include in such
listing the names, demographics and related database information
obtained and/or maintained by such party in respect of such
registered end users.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall become effective on the date first written
above and expire January 31, 2000 unless sooner terminated as
elsewhere provided in this Agreement ("Term of this Agreement");
provided, however, that upon the mutual written agreement of the
parties, this Agreement shall be extended automatically for successive
twelve-month periods.
6.2 Termination.
(a) Either party may terminate this Agreement upon written notice to
the other party in the event of any default in the payment of any
money due hereunder or any material breach of this Agreement by
either party hereto, if the party receiving such notice (i) fails
to cure such breach within [Confidential Treatment Requested] after
notice by the non-breaching party or (ii) in the case of breaches
which require more than [Confidential Treatment Requested] to effect
a cure, fails to commence and continue in good faith efforts to cure
such breach, provided that such cure shall be effected no later than
[Confidential Treatment Requested] after receipt of such notice of
such breach. Any such termination shall be effective at the end of
such [Confidential Treatment Requested] or [Confidential Treatment
Requested], as the case may be. Waiver of any such default or
material breach by either party hereto shall not be construed as
limiting any right of termination for a subsequent default or
material breach.
(b) Either party may terminate this Agreement immediately upon the
other party's (i) becoming insolvent, (ii) commencing or having
commenced against it (without dismissal within 60 days), any
bankruptcy, insolvency, liquidation, reorganization or similar
proceeding under any U.S. or foreign law, (iii) making an
assignment for the benefit of its creditors, (iv) admitting in
writing its inability to satisfy its debts in the ordinary
course of business, or (v) taking an action resulting in or
directed to ceasing, on a permanent basis, its business or
relevant operations.
6.3 Effect of Termination. The expiration or termination of this
Agreement shall in no event relieve Microsoft of its obligation to
make any payments due and payable to XXXXXX in respect of the
purchase of NC8 Headsets, and shall in no event relieve XXXXXX of its
obligation to deliver NC8 Headset units for which MICROSOFT has
rendered payment, in whole or in part. Upon the expiration or
termination of this Agreement, MICROSOFT shall cease all marketing
and distribution of the Encarta Interactive English Learning - NC8
Headset Bundles except in such quantities as are sufficient or
necessary to fill orders received by MICROSOFT for Encarta
Interactive English Learning SKUs prior to such expiration or
termination as set forth below in this Section 6.3. Upon the
expiration or termination of this Agreement, MICROSOFT shall have the
right for a period of [Confidential Treatment Requested] to continue
to bundle in Encarta Interactive English Learning SKUs NC8 Headsets
that are in MICROSOFT's inventory on the date of such termination or
expiration and sell during such [Confidential Treatment Requested]
period such Encarta Interactive English Learning - NC8 Headset
Bundles.
6.4 Survival. Sections [Confidential Treatment Requested] shall survive
any termination or expiration of this Agreement.
7. CONFIDENTIAL INFORMATION
7.1 Definition. In the course of the parties working together under this
Agreement, each party will have occasion to acquire and/or receive
from the other party and each party will have occasion to disclose to
the other party information that is not public, that is of critical
competitive and financial importance to the disclosing party and that
the disclosing party wishes to maintain in confidence. All of such
information however acquired by the receiving party, including,
without limitation, trade secrets, customer lists, business plans,
marketing plans, non-public financial data, product specifications
and designs, the existence, nature, substance, progress and results
of research and development projects, concepts, inventions,
discoveries, formulations, processes, drawings, documents, records,
software, correspondence between the parties relating to this
Agreement, or any other information, whether similar to the specified
information or not, that is identified as confidential to the
disclosing party, to any parent, subsidiary or affiliate company
thereof, or that under the circumstances surrounding the disclosure
ought to be treated as confidential, is hereinafter referred to as
such party's "Confidential Information".
7.2 General Rule regarding Non-disclosure. Accordingly, each party in its
capacity as a party receiving Confidential Information agrees on
behalf of itself and its principals, partners, directors, officers,
employees and advisors (collectively "Employees") that without the
prior written approval of the disclosing party, it will not:
(a) use the disclosing party's Confidential Information for its own
benefit, except in connection with the carrying out of its
responsibilities and obligations under this Agreement;
(b) use the disclosing party's Confidential Information for anyone
else's benefit for any reason; or
(c) disclose the disclosing party's Confidential Information to
anyone other than to those Employees with a need to know the
information in order to carry out the disclosing party's
responsibilities and obligations under this Agreement;
7.3 Exceptions. The obligations of confidentiality contained in Section
7.2 will not apply to information disclosed by a party (the
"disclosing party") to the other party (the "receiving party") to the
extent that it can be established by the receiving party by competent
proof that such information:
(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving
party (provided, however, that a combination of features
individually in the public domain shall not fall within this
exception unless the fact of such combination is also in the
public domain);
(c) became generally available to the public or otherwise part of the
public domain after its disclosure and other than through any act
or omission of the receiving party in breach of this Agreement;
(d) was disclosed to the receiving party, other than under an
obligation of confidentiality, by a third party who had no
obligation to the disclosing party not to disclose such
information to others;
(e) is authorized for release in writing by the disclosing party;
(f) is developed by such party completely independently of any such
received confidential information; or
(g) that is required to be disclosed pursuant to applicable law, a
court order, a judicial proceeding, or the enforcement hereof,
provided that the disclosing party is provided with reasonable
prior written notice so that such party may contest such
disclosure.
7.4 Return of Confidential Information. Upon the request of a party, the
other party will return any of the requesting party's Confidential
Information that is in tangible form and any physical manifestations
of such Confidential Information, or will certify destruction of the
same.
7.5 Employees. The receiving party shall take all reasonable steps
necessary to ensure that its Employees are bound by restrictions
regarding the use and disclosure of the disclosing party's
Confidential Information similar to those contained herein.
7.6 Injunctive Relief. Each party understands, acknowledges and agrees
that Confidential Information is of great competitive as well as
monetary value and that, therefore, without waiving any other rights
or remedies, each party shall have the right to bring an action to
enjoin any unauthorized disclosure or use of its own Confidential
Information by the other party, it being agreed that a suit for
monetary damages alone would be an inadequate remedy. This section
shall survive termination of this Agreement for a period of
[Confidential Treatment Requested].
8. LIMITATION OF LIABILITY AND INDEMNITY FOR INFRINGEMENT
8.1 Limited Warranty. XXXXXX warrants the NC8 Headsets to end users as
provided in the written Product Warranty accompanying the NCS
Headsets. All replacement copies are delivered subject to the term(s)
of said Product Warranty. SUCH WARRANTIES MAY BE ASSERTED BY END
USERS ONLY, AND NOT BY MICROSOFT, ITS CUSTOMERS OR ANY OTHER PERSONS
OR ENTITIES OTHER THAN END USERS. XXXXXX further warrants to
MICROSOFT that the NC8 Headsets furnished hereunder will, at the time
of delivery, confirm to the written Product Warranty accompanying
such NC8 Headsets. THIS WARRANTY MAY BE ASSERTED BY MICROSOFT ONLY,
AND NOT BY MICROSOFT'S CUSTOMERS OR ANY OTHER THIRD PARTY.
8.2 No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY
HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR
NATURE, WHETHER EXPRESS OR IMPLIED, RELATING TO THE XXXXXX IP RIGHTS,
THE NC8 HEADSETS, THE MICROSOFT IP RIGHTS, THE ENCARTA INTERACTIVE
ENGLISH LEARNING SOFTWARE PRODUCTS AND THE ENCARTA INTERACTIVE
ENGLISH LEARNING SKUS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH
PARTY FURTHER HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR
THAT THE PRACTICE OF THE XXXXXX IP RIGHTS, THE MICROSOFT IP RIGHTS OR
THE MANUFACTURE, USE OR SALE OF THE NC8 HEADSETS, THE ENCARTA
INTERACTIVE ENGLISH LEARNING SOFTWARE PRODUCTS AND ENCARTA
INTERACTIVE ENGLISH LEARNING SKUS WILL NOT INFRINGE ANY PATENT,
COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OF THIRD PARTIES. Nothing
contained in this Agreement shall be construed as either a warranty
or representation by either party as to the validity or scope of the
Xxxxxx IP Rights or the Microsoft IP Rights. Neither party assumes
any liability in respect of any infringement of any patent or other
right of third parties due to the activities of the other party under
this Agreement.
8.3 XXXXXX Indemnity.
(a) XXXXXX agrees to indemnify and hold MICROSOFT harmless from, and
defend MICROSOFT against, any loss, cost, damage, or expense and
any claims therefor (including reasonable attorney's fees and
expenses) (each a "Claim") suffered by MICROSOFT that arise from
the infringement or the alleged infringement by XXXXXX
trademarks or by the NC8 Headsets of any patent rights,
copyrights or other intellectual property rights of a third
party, including any claim of misappropriation of trade secrets,
in any country that is a signatory to the Berne Convention.
(b) XXXXXX SHALL HAVE NO LIABILITY OR OBLIGATION HEREUNDER TO
MICROSOFT WITH RESPECT TO ANY CLAIM THAT RESULTS FROM OR IS BASED
ON (i) ANY IMPROVEMENTS, UPDATES, MODIFICATIONS OR OTHER CHANGES
TO THE NC8 HEADSETS AFTER DELIVERY TO MICROSOFT THAT ARE NOT MADE
BY XXXXXX; (ii) IMPROPER USE OF THE NC8 HEADSET; OR (iii) END
USER ERROR.
(c) XXXXXX SHALL HAVE NO LIABILITY OR OBLIGATION TO MICROSOFT WHERE
MICROSOFT'S USE OF THE NC8 HEADSETS IS INCIDENT TO AN
INFRINGEMENT NOT RESULTING FROM THE NC8 HEADSETS.
(d) IF ANY NC8 HEADSETS BECOME, OR IN ANDREA'S OPINION IS LIKELY TO
BECOME, THE SUBJECT OF A CLAIM, XXXXXX AT ITS OWN OPTION AND
EXPENSE SHALL EITHER (i) PROCURE FOR MICROSOFT AND/OR MICROSOFT
CUSTOMERS THAT HAVE OBTAINED NC8 HEADSETS FROM MICROSOFT IN
ENCARTA INTERACTIVE ENGLISH LEARNING SKUs THE RIGHT TO CONTINUE
USING SUCH NC8 HEADSETS; (ii) REPLACE OR MODIFY THE NC8 HEADSETS
SO THAT THEY BECOME NON-INFRINGING; OR (iii) REFUND TO MICROSOFT
THE PURCHASE PRICE FOR THE NC8 HEADSETS PAID TO XXXXXX TO DATE.
8.4 MICROSOFT Indemnity. MICROSOFT agrees to indemnify and hold XXXXXX
harmless from, and defend XXXXXX against, any loss, cost, damage, or
expense and any claims therefor (including reasonable attorney's fees
and expenses) suffered by XXXXXX that arise from the publication,
marketing, distribution and/or sale by MICROSOFT of the Encarta
Interactive English Learning Software Products or the stockkeeping
units containing such Encarta Interactive English Learning Software
Products that are based on (i) alleged infringement by the Encarta
Interactive English Learning Software Products or the stockkeeping
units containing such Encarta Interactive English Learning Software
Products of any patent rights, copyrights or other intellectual
property rights of a third party in any country that is a signatory
to the Berne Convention; or (ii) arising out of the illegal
exportation by MICROSOFT or any authorized agent of MICROSOFT of any
Encarta Interactive English Learning Software Product, Encarta
Interactive English Learning SKU or NC8 Headset.
9. OTHER INDEMNITY MATTERS
9.1 NEITHER PARTY SHALL BE LIABLE OR OBLIGATED IN ANY MANNER UNDER THIS
AGREEMENT TO THE OTHER FOR ANY LOST PROFITS, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES EVEN IF INFORMED OF THE POSSIBILITY
THEREOF IN ADVANCE.
9.2 Each party shall give the other party prompt written notice of any
threat, warning or notice of any Claim of which such party has
knowledge or has reason to have such knowledge and for which indemnity
is provided hereunder by a party.
9.3 If any action shall be threatened or brought against either party
(the "Claimant") in respect to which indemnity may be sought from the
other party (the "Non-Claiming Party") pursuant to the provisions of
this Agreement, in order to be entitled to the indemnity hereunder,
the Claimant shall promptly notify the Non-Claiming Party in writing,
specifying the nature of the action and the total monetary amount
sought or other such relief as is sought therein. The Claimant shall
cooperate with the Non-Claiming Party at the Non-Claiming Party's
expense in all reasonable respects in connection with the defense of
any such threatened or actual action. The Non-Claiming Party may,
upon written notice thereof to Claimant, undertake to conduct all
proceedings or negotiations in connection therewith, assume the
defense thereof, and if it so undertakes, it shall also undertake all
other required steps or proceedings to settle or defend any such
action; including the employment of counsel which shall be reasonably
satisfactory to Claimant, and payment of all expenses; provided,
however, that the Non-Claiming Party shall not, without the
Claimant's prior written consent, settle, compromise or consent to
the entry of any Judgment in any such action (whether or not the
Claimant is an actual or potential party to such action), unless such
settlement, compromise or consent (i) includes an unconditional
release of the Claimant from all liability arising out of such action
and (ii) does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of the Claimant.
Claimant, at its own expense, shall have the right to employ separate
counsel and participate in the defense thereof. The Non-Claiming Party
shall reimburse Claimant upon demand for any payments made or loss
suffered by it at any time after the date hereof, based upon (i) the
final judgment of any court of competent jurisdiction, or (ii)
pursuant to a bona fide compromise or settlement of claims, demands,
or actions as agreed to by the Non-Claiming Party, in respect to any
damages to which the foregoing relates.
10. NOTICES
All notices and other communications hereunder will be in writing and will
be deemed given if delivered personally or by facsimile transmission (receipt
verified), telexed, or sent by express courier service, to the parties at the
following addresses (or at such other address for a party as will be specified
by like notice; provided, that notices of a change of address will be effective
only upon receipt thereof):
IF TO MICROSOFT AT:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
One copy marked "Attention: [Confidential Treatment Requested]; and a
second copy marked "Attention: [Confidential Treatment Requested]
IF TO XXXXXX AT:
Xxxxxx Electronics Corporation
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
One copy marked "Attention: [Confidential Treatment Requested]; and a
second copy marked "Attention: [Confidential Treatment Requested].
11. MISCELLANEOUS
11.1 Entire Agreement; Amendments; Counterparts. This Agreement together
with the schedules attached hereto contains the entire understanding
of the parties on the subject matter hereof and no representation,
affirmation of fact, course of prior dealings, promise or condition in
connection herewith or usage of the trade not expressly incorporated
herein shall be binding on the parties. This Agreement together with
the schedules attached hereto shall not be amended except by written
agreement of the parties signed by each of them; shall be binding
upon, and inure to the benefit of, the parties and their successors,
representatives, administrators and permitted assigns; and may be
executed in one or more counterparts each of which shall be deemed an
original hereof, but all of which shall constitute but one and the
same agreement.
11.2 Nonassignment. Except as provided in this Section 11.2, the rights and
licenses granted herein are nonassignable. Any attempted assignment of
the rights or delegation of the obligations under this Agreement shall
be void without the prior written consent of the nonassigning or
nondelegating party (which may be withheld in the sole discretion of
such party), except in connection with the sale of all or
substantially all of a party's assets (by merger or otherwise). Each
party may without such prior written consent assign or delegate to one
or more of its wholly-owned subsidiaries any or all of its respective
rights or obligations hereunder so long as such party remains
primarily liable for the obligations to the other party set forth
herein.
11.3 Construction.
(a) The words "herein," "hereof," "hereunder," "hereby," "herewith"
and words of similar import when used in this Agreement shall be
construed to refer to this Agreement as a whole. The word
"including" shall mean "including, but not limited to," any
enumerated items.
(b) Each party and its counsel has reviewed this Agreement.
Accordingly, the normal rule of construction that any ambiguities
and uncertainties are to be resolved against the party preparing
an agreement will not be employed in the interpretation of this
Agreement; rather the Agreement shall be construed as if all
parties had jointly prepared it.
11.4 Waivers. A party's failure at any time to require the other party's
performance of any obligation under this Agreement shall not affect
such party's right to require subsequent performance of that
obligation. Any waiver of any breach of any provision of this
Agreement shall not be construed as a waiver of any continuing or
succeeding breach of such provision, waiver or modification of the
provision itself or a waiver or any modification of any right under
this Agreement.
11.5 Severability. Whenever possible, each provision of the Agreement will
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of the Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of the Agreement.
11.6 Force Majeure. Neither XXXXXX nor MICROSOFT shall be in default or
liable for any delay or failure of compliance with this Agreement due
to an act of nature, public enemy, government action, freight embargo,
or strike beyond the control of the defaulting party and the
defaulting party shall provide the non-defaulting party immediate
notice of any such anticipated delay or failure of compliance;
provided, however, that any such act shall not relieve the defaulting
party's obligations hereunder and such party hereby agrees to perform
its obligations as soon as practicable after the conditions causing
such delay or failure have subsided. In the event that such condition
persists for a period of [Confidential Treatment Requested], either
party may terminate this Agreement without liability to the other
except for such obligations as have already accrued under this
Agreement prior to such termination.
11.7 Headings. The headings to sections and subsections of this Agreement
are to facilitate reference only and do not form a part of this
Agreement, and shall not in any way affect the interpretation hereof.
11.8 Governing Law; Jurisdiction. Any and all disputes, controversies or
claims arising from or relating to the terms, conditions and/or
provisions of this Agreement, including, without limitation, any and
all such disputes, controversies or claims involving the
interpretation and construction of this Agreement, shall be resolved
by reference to and in accordance with the laws of the State of
Washington as applied to contracts made and to be performed entirely
within the State of Washington.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above
written.
MICROSOFT CORPORATION XXXXXX ELECTRONICS CORPORATION
By: [Confidential Treatment Requested] By: [Confidential Treatment Requested]
Name:[Confidential Treatment Requested] Name:[Confidential Treatment Requested]
Title:[Confidential Treatment Requested] Title:[Confidential Treatment Requested]
SCHEDULE 2.1
XXXXXX NC8 HEADSETS
Model No. Product Description Encarta Interactive
English Learning SKU
[Confidential Treatment Requested]
SCHEDULE 2.2
XXXXXX NAMES, MARKS AND MATERIALS
[Confidential Treatment Requested]
SCHEDULE 2.3
FORM OF PRODUCT WARRANTY FOR XXXXXX NC8 HEADSETS
(See attached Consumer Guarantee)
SCHEDULE 3.1
FORM OF PURCHASE ORDER
The form of Purchase Order shall include the following items: 1) the
Purchase Order number, 2) the Purchase Order date, 3) the part
number/description, 4) the quantity and unit price, 5) the extended price of the
Purchase Order, 6) the "ship to" address, 7) the "xxxx to" address, 8) the
anticipated Delivery date, 9) whether MICROSOFT chooses to have XXXXXX manage
shipping and handling services for the products covered by the Purchase Order,
and 10) the appropriate contact person.
SCHEDULE 3.2
PRICING SCHEDULE
Product Volume Price per Xxxx Xxxxxxxx
XX0 Headset [Confidential Treatment Requested]
NC8 Headset [Confidential Treatment Requested]
In the event MICROSOFT chooses XXXXXX to manage shipping and handling
services, the prices above will be increased to include actual freight,
applicable tariffs and handling charges currently estimated as follows: (such
estimates are subject to changes in actual freight and tariff costs and,
accordingly, these estimates may increase or decrease from time to time)
Destination Method Cost per Unit Shipping Leadtime
--------------------------------------------------------------------------------------
[Confidential Treatment Requested]
SCHEDULE 5.3(D)
LIST OF MARKETS IN WHICH LOCAL OR TOLLFREE SERVICE IN
DOMINANT LANGUAGE WILL BE PROVIDED
[Confidential Treatment Requested]
SCHEDULE 5.1
USING MICROSOFT LOGO(S)
1. MICROSOFT LOGO(S):
2. USAGE GUIDELINES:
The following guidelines apply whenever XXXXXX places a copy of the
MICROSOFT Logo(s) on ANDREA's web site.
1. Except as Microsoft may authorize elsewhere, XXXXXX may use only the
MICROSOFT Logo(s) in accordance with the Agreement and guidelines set forth
below. By signing the Agreement, XXXXXX agrees to be bound by these
Guidelines.
2. XXXXXX may only use the Microsoft Logo on ANDREA's web site located at
http://________________, and not in any other manner. It must always be an
active link to MICROSOFT's web site located at http://________________ or
other URL(S) as directed by MICROSOFT.
3. The MICROSOFT Logo(s) may be used only on ANDREA's web site as set forth in
the Agreement. ANDREA's web site title must appear at least as prominent as
the MICROSOFT Logo(s). XXXXXX may not display the MICROSOFT Logo(s) in any
manner that implies sponsorship, endorsement, or license by MICROSOFT.
4. The MICROSOFT Logo(s) must appear by Itself, with a minimum spacing (the
height of the MICROSOFT Logo) between each side of the MICROSOFT Logo and
other graphic or textual elements on ANDREA's web site. The MICROSOFT
Logo(s) may not be used as a feature or design element of any other logo.
5. XXXXXX may not alter the MICROSOFT Logo(s) in any manner, including size,
proportions, colors, elements, etc., or animate, morph or otherwise distort
its perspective or two-dimensional appearance.
6. XXXXXX may not use the MICROSOFT Logos on any site that disparages
MICROSOFT or its products or, services, infringes any MICROSOFT
intellectual property or other rights, or violates any state, federal or
international law.
7. These Guidelines do not grant a license or any other right in MICROSOFT's
logos or trademarks. MICROSOFT reserves the right in its sole discretion to
terminate or modify permission to use the MICROSOFT Logo(s) at any time.
MICROSOFT reserves the right to take action against any use that does not
conform to these policies, infringes any MICROSOFT intellectual property or
other right, or violates other applicable law.
8. MICROSOFT DISCLAIMS ANY WARRANTIES THAT MAT BE EXPRESS OR IMPLIED BY LAW
REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
SCHEDULE 5.2
USING XXXXXX LOGO(S)
1. XXXXXX LOGO(S):
2. USAGE GUIDELINES:
The following guidelines apply whenever MICROSOFT places a copy of the
XXXXXX Logo(s) on MICROSOFT's web site.
1. Except as Xxxxxx may authorize elsewhere, MICROSOFT may use only the XXXXXX
Logo(s) in accordance with the Agreement and guidelines set forth below. By
signing the Agreement, MICROSOFT agrees to be bound by these Guidelines.
2. MICROSOFT may only use the XXXXXX Logo on MICROSOFT's web site located at
http://________________, and not in any other manner. It must always be an
active link to ANDREA's web site located at http://________________ or
other URL(S) as directed by XXXXXX.
3. The XXXXXX Logo(s) may be used only on MICROSOFT's web site as set forth in
the Agreement. MICROSOFT's web site title must appear at least as prominent
as the XXXXXX Logo(s). MICROSOFT may not display the XXXXXX Logo(s) in any
manner that implies sponsorship, endorsement, or license by XXXXXX.
4. The XXXXXX Logo(s) must appear by itself, with a minimum spacing (the
height of the XXXXXX Logo) between each side of the XXXXXX Logo and other
graphic or textual elements on MICROSOFT's web site. The XXXXXX Logo(s) may
not be used as a feature or design element of any other logo.
5. MICROSOFT may not alter the XXXXXX Logo(s) in any manner, including size,
proportions, colors, elements, etc., or animate, morph or otherwise distort
its perspective or two-dimensional appearance.
6. MICROSOFT may not use the XXXXXX Logos on any site that disparages XXXXXX
or its products or, services, infringes any XXXXXX intellectual property or
other rights, or violates any state, federal or international law.
7. These Guidelines do not grant a license or any other right in ANDREA's
logos or trademarks. XXXXXX reserves the right in its sole discretion to
terminate or modify permission to use the XXXXXX Logo(s) at any time.
XXXXXX reserves the right to take action against any use that does not
conform to these policies, infringes any XXXXXX intellectual property or
other right, or violates other applicable law.
8. XXXXXX DISCLAIMS ANY WARRANTIES THAT MAT BE EXPRESS OR IMPLIED BY LAW
REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT.
CONSUMER GUARANTEE Dear Customer:
Thank you for buying this product from Xxxxxx
XXXXXX PURCHASER ________________________________
ELECTRONICS CORPORATION
MODEL NO. ________________________________
A LIST OF AUTHORIZED SERVICE PRODUCT NO. ________________________________
PROVIDERS IS AVAILABLE FROM:
DATE OF PURCHASE ____________________________
Xxxxxx Electronics Corporation
00-00 00xx Xxxx PURCHASED FROM ______________________________
Xxxx Xxxxxx Xxxx, XX 00000
ADDRESS ________________________________
STATEMENT OF LIMITED WARRANTY
The warranties provided by Xxxxxx Electronics Corporation in this Statement
of Limited Warranty apply only to products you originally purchase for your use,
and not for resale, from Xxxxxx Electronics or an Xxxxxx Electronics authorized
reseller. The term "product" means an Xxxxxx Electronics Corporation product,
its features, conversions, upgrades, elements, or accessories, or any
combination of them. Products are subject to these terms only if purchased in
the United States or Puerto Rico, or Canada, and located in the country of
purchase. If you have any questions, contact Xxxxxx Electronics Corporation or
your reseller.
Les conditions de la garantie qui s'appliquent dans le pays ou le produit a
ete achete sont disponibles aupres d'Xxxxxx Electronics ou votre detaillant.
Die Garantiebedingungen, die in dem Land gelten, in welchem das Gerat
gekauft wird. Sind von Xxxxxx Electronics oder lhrem Handler erhaltlich.
Le condizioni di garanzia in vigore nel paese ove e stato acquistato il
prodotto sono disposibili presso l'Xxxxxx Electronics o il rivenditore.
Podra obtener los terminos y las condiciones sobre las garantia aplicable
en el pais de compara de Xxxxxx Electronics o de su concessionario local.
IN THE EVENT THAT GUARANTEE SERVICE IS REQUIRED FOR THE XXXXXX ELECTRONICS
PRODUCT COVERED BY THIS GUARANTEE, PLEASE RETURN IT TO THE RETAILER AUTHORIZED
SERVICE STATION.
YOUR GUARANTEE
By this Consumer Guarantee, Xxxxxx Electronics Corporation guarantees this
product to be free of defects in materials and workmanship for a period of one
(1) year (the "Guarantee Period") from and after the time of its original
purchase or the time it was taken on hire purchase terms by the consumer from
the retailer.
Subject to the conditions explained below, if during the Guarantee Period
the product proves to be defective due to improper materials or workmanship,
Xxxxxx Electronics' Retailer Authorized Service Stations or Authorized Servicing
Dealers will without charge for labor or parts repair or, at the discretion of
the distributor, replace this product or its defective parts. To contact an
Xxxxxx Electronics customer service representative from 8:00 a.m. to 8:00 p.m.
EST, call (000) 000-0000 or your local Xxxxxx Electronics reseller.
CONDITIONS
1. The guarantee will be honored only if this Consumer Guarantee is
presented together with the original invoice/cash ticket issued to the
consumer by the retailer and if this Consumer Guarantee Card states the
following information: (a) the purchaser's name, (b) the retailer's name
and address, (c) the model name and product number of the purchased
product, and (d) the date or purchase of the product. If this information
has been removed or changed after the original purchase of the product by
the consumer from the retailer, Xxxxxx Electronics reserves the right to
refuse guarantee service.
2. In the event that this product needs to be adapted, change, or adjusted
in order to conform to the national or local technical or safety standards
in force in any country or locality other than the one for which the
product was originally designed and manufactured, any such adaptation,
change, or adjustment shall not be considered to be a defect in materials
or workmanship for purposes of this Consumer Guarantee. No reimbursements
shall be made under this Consumer Guarantee for the following: (a) any
adaptation, changes, or adjustments to the product, or attempts to make the
same, whether properly made or not, in order to conform to such standards,
(b) any adaptation, changes, or adjustments to upgrade the product from its
normal purpose as described in the Instruction Manual, or (c) any damage
resulting from any adaptations, changes, or adjustments to the product or
attempts to make the same.
3. The Consumer Guarantee shall not cover any of the following:
(a) periodic check-ups, maintenance and repair or replacement of
parts due to normal wear and tear;
(b) home service transport costs and other costs and risks of transport
relating directly or indirectly to this Consumer Guarantee; and
(c) damage to this product resulting from:
(i) abuse and misuse, including, without limitation, (a)
the failure to use this product for its normal
purposes or in accordance with Xxxxxx Electronics'
instructions on the proper use and maintenance of
this product and (b) the installation or the use of
this product in a manner inconsistent with the
technical or safety standards in force in the
country where the product is used;
(ii) repairs done by non-Authorized Service Stations; and
(iii) accidents, acts of God, or any cause beyond the
control of Xxxxxx Electronics, including, without
limitation, electrical storms, water, fire, public
disturbances, and improper ventilation.
4. This Consumer Guarantee does not affect the consumer's statutory rights
under applicable national legislation in force, nor the consumer's rights
against the retailer arising from any sales/purchase contracts between the
retailer and the consumer, in the absence of applicable national
legislation, this Consumer Guarantee will be the consumer's sole and
exclusive remedy, and neither Xxxxxx Electronics Corporation nor any of its
subsidiaries or distributors shall be liable for any incidental or
consequential damages for breach of any expressed or implied guarantee of
this product.
