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EXHIBIT 10.6
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MASTER SALES AGREEMENT
BY AND BETWEEN
OYO GEOSPACE CORPORATION
AND
OYO CORPORATION
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NOVEMBER 10, 1995
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MASTER SALES AGREEMENT
THIS MASTER SALES AGREEMENT is made and entered into this 10th day of
November, 1995, by and between OYO Geospace Corporation, a Delaware corporation
("OYO Geospace"), with its principal office located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and OYO Corporation, a company organized and existing
under the laws of Japan ("OYO Japan"), with its principal office located at
Ichigaya ▇▇▇▇▇▇▇▇, ▇-▇, ▇▇▇▇▇-▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, OYO Geospace is in the business of designing and manufacturing
instruments and equipment used in (i) the acquisition and processing of seismic
data, (ii) time measurement and (iii) certain other applications;
WHEREAS, OYO Japan is in the business of (i) providing engineering and
consulting services primarily for the investigation of the earth's subsurface
primarily for construction projects and (ii) manufacturing and selling
geotechnical instruments;
WHEREAS, OYO Geospace desires from time to time to sell to certain of
its products on a non-exclusive basis to OYO Japan, and OYO Japan desires from
time to time to purchase certain products from OYO Geospace; and
WHEREAS, OYO Japan desires from time to time to sell to certain of its
products on a non-exclusive basis or resell certain products to OYO Geospace,
and OYO Geospace desires from time to time to purchase certain products from
OYO Japan;
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 Master Sales 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
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any third Person of any nature whatsoever, other than inchoate
mechanic's, materialmen's and similar liens arising in the ordinary
course of business;
(d) "Party" means either OYO Geospace or OYO Japan, and
"Parties" means both OYO Geospace and OYO Japan;
(e) "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;
(f) "Product" means any product manufactured or resold by a
Party (including improved and succeeding models of such products) as may
be agreed upon by the Parties in writing from time to time, other than
printheads which are the subject of a separate agreement between the
Parties;
(g) "Purchaser" means (i) OYO Geospace, if OYO Geospace is
purchasing Products from OYO Japan pursuant to the terms and conditions
of this Agreement, and includes all subsidiaries thereof, or (ii) OYO
Japan, if OYO Japan is purchasing Products from OYO Geospace pursuant to
the terms and conditions of this Agreement, and includes all
subsidiaries and Affiliates thereof other than OYO Geospace and its
subsidiaries; and
(h) "Seller" means (i) OYO Geospace, if OYO Geospace is
selling Products to OYO Japan pursuant to the terms and conditions of
this Agreement, and includes all subsidiaries thereof, or (ii) OYO
Japan, if OYO Japan is selling Products to OYO Geospace pursuant to the
terms and conditions of this Agreement, and includes all subsidiaries
and Affiliates thereof other than OYO Geospace and its subsidiaries.
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.
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ARTICLE 2
SALE AND PURCHASE
2.1 Sale and Purchase Obligations.
(a) Seller agrees to sell to Purchaser, upon Purchaser's order
and Purchaser thereafter agrees to purchase from Seller, any Product of
Seller at any time during the term of this Agreement and in accordance
with the terms and provisions hereof.
(b) If Seller is unable, for any reason other than a
volitional declination to do so, to supply Purchaser with Purchaser's
requirements for any Product within 30 days of receipt of an order from
Purchaser, then the obligations to purchase and sell hereunder shall
cease in respect of such order and shall be of no further effect or
force.
(c) No provision of this Agreement shall be construed to
impair Seller's right to supply any Product to any person other than
Purchaser.
2.2 Orders and Deliveries. All orders, processing and deliveries of
the Product shall be made in accordance with the customary and routine handling
of orders, processing and deliveries to third parties in respect of the
particular Product or type of Product, 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 shall be as set forth in Schedule A hereto with respect to
the Products identified therein.
(b) Seller shall provide Purchaser reasonable access to its
books and records to allow Purchaser to confirm Seller's cost of
manufacturing or purchasing, as the case may be, the Product.
(c) Purchaser 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 United States dollars in respect of purchases from OYO
Geospace and in Japanese Yen in respect of purchasers from OYO Japan
except for purchases from other U.S. Affiliates of OYO Japan, which
shall be in U.S. dollars.
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2.4 Inspection and Rejection.
(a) Purchaser reserves the right to reject or revoke
acceptance of any shipment of Product as a result of any defect or
nonconformity thereof. If any Product is rejected or its acceptance is
revoked, Purchaser shall notify Seller of such rejection or revocation
of acceptance within 60 days of receipt of such Product, specifying with
particularity the grounds for its rejection or revocation of acceptance.
(b) Seller shall immediately replace any such Product or
immediately refund the price therefor, at Purchaser's option. If Seller
is unable to replace any such Product within 60 days of Purchaser's
rejection or revocation of acceptance for any reason other than a
volitional declination to do so, then the obligations to sell and
purchase in respect of such Product shall cease and be of no further
effect or force.
(c) All rejected Products shall be returned by Purchaser to
Seller, at Seller's sole cost, within 30 days Purchaser's rejection or
revocation of acceptance of such Products.
2.5 Warranties of Seller.
(a) Seller extends to Purchaser the ordinary and customary
warranty in respect of each Product sold by Seller to Purchaser as if
Purchaser were a third party; provided, however, that such warranty
applies only to Products that are manufactured by the Seller and not to
Products that are manufactured by a third party and resold by the
Seller.
(b) Seller warrants to Purchaser that the Products, at the
time of delivery to Purchaser, will be free from any Encumbrances.
2.6 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 Purchaser at Purchaser's delivery destination and until
Purchaser has completed any proper inspection without rejection of the
Products.
2.7 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
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the gross negligence or willful misconduct of Seller or its directors,
officers, employees or agents.
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.
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 material breach of this Agreement by the other Party
that is not capable of being cured;
(b) 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;
(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
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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.
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 arbitrators shall not have any authority to award consequential,
exemplary or punitive damages. 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
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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 the customary manner as in the case of orders and
invoices to third parties) 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
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.
OYO Geospace
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OYO Geospace Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. C. ▇▇▇▇▇▇ ▇▇▇▇▇
OYO Japan
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OYO Corporation
Ichigaya ▇▇▇▇▇▇▇▇
▇-▇, ▇▇▇▇▇-▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
Facsimile: ▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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.
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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.
7.6 Entire Agreement. This Agreement 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
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effected by sending the other Party a facsimile copy of this Agreement as
executed by the delivering Party.
IN WITNESS WHEREOF, OYO Geospace and OYO Japan have executed this
Agreement as of the date first written above.
OYO GEOSPACE CORPORATION
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇
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C. ▇▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President and
Chief Operating Officer
OYO CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Joint General Manager
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SCHEDULE A
PRICE (REFLECTED AS A
PRODUCT PERCENTAGE OF THE CURRENT LIST PRICE)
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Data Acquisition System 80% (if sold to OYO Japan)
Geophones, Hydrophones, 90-95%
Connectors and Cables
Parts and Supplies for 90%
Products
All other Products sold 80%
between the Parties
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