EXHIBIT 4.7
PLAYSTATION(R)2 PERIPHERAL PRODUCTS SUPPLY AGREEMENT
THIS AGREEMENT is entered into the 15th day of September 2003 by and between
SONY COMPUTER ENTERTAINMENT EUROPE LIMITED
of 00 Xxxxxx Xxxxxx, Xxxxxx, XXX 0XX
(hereinafter referred to as "SCEE")
-xxx-
XXXXXX ELECTRONIC (SHENZHEN) CO., LTD
of Gusu Industrial Estate, Xixiang, Baoan, Shenzhen,PRC, Postal Code :518126
(hereinafter referred to as "Nam Tai")
WHEREAS
(A) SCEE, Sony Corporation, and/or certain of their affiliates and
companies within the group of companies of which any of them form part
(hereinafter jointly and severally referred to as "Sony") have
developed a 128- bit CD and DVD based home entertainment system
(hereinafter referred to as "the PlayStation 2" which is a registered
trademark of Sony Computer Entertainment Inc.) and are the owners of
certain proprietary information and intellectual property rights
pertaining to the PlayStation 2.
(B) SCEE has commissioned Nam Tai to supply digital camera peripheral
devices based on SCEI's registered design and including certain third
party proprietary technology and being compatible with SCEE's EyeToy
software.
(C) Nam Tai wishes to supply and SCEE wishes to purchase the peripheral
products for resale in the Territory on the terms and subject to the
conditions of this Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires the following
words and expressions shall have the following meanings:-
"Acceptance Tests" means the acceptance tests referred to in Schedule
2.
"Affiliate of SCEE" means, as applicable, Sony Computer Entertainment
Inc in Japan, Sony Computer Entertainment of America, Inc. or any
member of the Sony Computer Entertainment group of companies.
"Agreement" means this supply agreement including the Schedules hereto.
"Chipset" means integrated circuit devices designed and intended for
incorporation into a digital camera based peripheral device capable of
interfacing with the Software.
"Commencement Date" means 15th January 2003.
"Confidential Information" means in relation to either party,
information belonging or relating to that party, its business, business
plans, affairs or activities, which information is confidential and
proprietary to that party.
"Contract" means a contract for supply of the Peripheral Products
between the parties formed by Nam Tai's acceptance or deemed acceptance
of SCEE's Purchase Order in accordance with Clause 5.2.
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"Control" means, in relation, to either party, the right of a person or
persons acting together, whether in law or in fact, to secure whether
by means of the holding of shares bearing 50% or more of the voting
rights attaching to all of the shares in that party or by having the
power to control the composition of the Board of Directors of that
party, that all or substantial part of the affairs of that party are
conducted in accordance with the wishes of that person or persons, and
"Controlled" shall be construed accordingly;
"Delivery" means, in relation to any Contract, transfer of physical
possession of the Peripheral Products to SCEE or SCEE's agent at the
place specified in Clause 7.2.
"Design" means the design of the Peripheral Product based upon SCEI's
registered design numbers 3012081, 3012082, 3012083 and 3012084 ("the
Registered Design").
"Documentation" means documentation relating to the operation, support
and maintenance of the Peripheral Products.
"Intellectual Property Rights" means any patent, registered design,
copyright, design right, topography right, trade xxxx, business name,
application to register any of the aforementioned rights, trade secret,
unpatented know-how and right of confidence, and any other intellectual
property right of any nature whatsoever in any part of the world.
"Peripheral Product(s)" means SCEE's commissioned digital camera based
peripheral product based upon the Design, incorporating one or more
Chipsets and bearing the Trademarks, and being more fully described in
Schedule 1.
"Product Failure" means a recognised component, design or technical
defect in the Peripheral Product(s).
"Purchase Order" means an order placed by SCEE for the supply of the
Peripheral Products on the terms and conditions of this Agreement,
stating SCEE's order number, the Peripheral Products ordered and the
price(s) thereof, and the required Delivery date(s) and Delivery
address(es).
"Quarter" means one of subsequent periods of three calendar months, the
first commencing on the Commencement Date.
"Returns" means Peripheral Products which are rejected by SCEE or
returned to SCEE by its resellers/ customers as non-conforming, damaged
including due to Product Failure.
"Software" means software developed by SCEE or parties authorized by
SCEE to enable the connection and functioning of a digital camera based
peripheral device to a video game console or any software derived from
the same.
"Specifications" means the Peripheral Product specifications and any
other specifications, and any amendments thereto, agreed in writing
between Nam Tai and SCEE from time to time.
"Term" means the term of this Agreement being two years from the
Commencement Date in accordance with Clause 3.1.
"Territory" means the world.
"Tools" means the tools purchased by Nam Tai to manufacture the
Peripheral Products.
"Trademarks" means the PlayStation Family logo, a registered trademark
of SCEI and EyeToy, a registered trademark of SCEE.
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1.2 The headings in this Agreement are for convenience only and shall not
affect its interpretation or construction.
1.3 The Schedules referred to form part of this Agreement.
1.4 References to Clauses and Schedules are, unless otherwise stated, to
clauses in and schedules to this Agreement.
2. BASIS OF SUPPLY
2.1 Nam Tai agrees to supply the Peripheral Products to SCEE or its
nominated distributors.
2.2 Nam Tai agrees upon receiving payment from SCEE for the value of the
remaining life of the tools from SCEE to render up the Tools on the
expiration of this Agreement.
2.3 Nam Tai agrees that during the Term and throughout the Territory,
without SCEE's consent, it will not, and will procure that its
affiliates do not, manufacture, distribute, sell nor supply to any
third party, other than SCEE or its nominated distributors, for
sale the Peripheral Products or any digital camera based peripheral
products intended for use with any video game console, but such consent
shall not be unreasonably withheld.
For the purpose of this clause 2.3 Nam Tai's affiliates shall mean Nam
Tai Electronics Inc and its subsidiaries.
2.4 Nam Tai agrees to purchase the Chipsets for incorporation in the
Peripheral Products only from Omnivision Technologies Inc.
3. TERM
3.1 This Agreement shall commence on the Commencement Date and shall
continue for a period of two years.
4. SCEE'S UNDERTAKINGS
4.1 SCEE agrees to prepare written sales forecasts in accordance with
Clause 6 with a view to assisting Nam Tai in preparing its production
schedule.
5. ORDERING PERIPHERAL PRODUCTS
5.1 During the continuance of this Agreement Nam Tai shall sell and SCEE
shall purchase such quantities of the Peripheral Products as may be
ordered by SCEE from time to time under Clause 5.2, subject to the
terms and conditions of this Agreement.
5.2 The placing by SCEE of a Purchase Order for Peripheral Products from
time to time and written acceptance thereof by Nam Tai shall create a
Contract subject to the terms of this Agreement. No Contract shall be
deemed concluded unless and until Nam Tai has accepted the Purchase
Order by issuing a written order acceptance. Nam Tai shall be deemed to
have accepted any Purchase Order placed in accordance with the terms of
this Agreement if it has not issued a written order acceptance or
rejection within five working days of receipt of such Purchase Order.
5.3 SCEE may vary the terms of, or reschedule the Delivery date under, any
Contract subject to prior written agreement of Nam Tai.
5.4 SCEE shall be entitled to cancel any Purchase Order, in whole or in
part, by giving reasonable notice to Nam Tai provided that SCEE shall
be responsible for all direct material costs in terms of finished
goods,
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work in progress, parts and labour costs already incurred by Nam Tai in
relation to the relevant Purchase Order.
5.5 SCEE shall be under no obligation to place Purchase Orders under this
agreement and shall have the right during the Term hereof to acquire
products or services from any third party.
6. SUPPLY OF PRODUCTS AND SALES FORECASTS
6.1 Nam Tai shall maintain sufficient manufacturing and storage facilities,
resources, materials, parts and components to meet SCEE's Purchase
Orders placed from time to time hereunder. To this end, SCEE has given
Nam Tai prior to signing this Agreement a written forecast for its
anticipated requirements for the Peripheral Products for the 4-month
period commencing on the Commencement Date.
6.2 SCEE agrees to give Nam Tai, not later than 30 days before the
beginning of each subsequent month, SCEE's written forecast of its
anticipated requirements for the Peripheral Products for the following
month. Such forecasts shall be for information only and shall not be
binding upon either party.
6.3 If SCEE's orders for the Peripheral Products exceed (or it appears from
any of SCEE's forecasts given pursuant to Clause 6.2 that they will
exceed) the output capacity or available stocks of Nam Tai, Nam Tai
shall as soon as practicable notify SCEE.
7. DELIVERY OF PERIPHERAL PRODUCTS AND PACKING
7.1 Nam Tai shall perform and complete, prior to Delivery, all factory and
other tests agreed between the parties and set out in writing in the
Specifications or as otherwise reasonably agreed between the parties in
writing from time to time. SCEE shall be entitled to have present at
such testing such authorised representatives as it reasonably considers
necessary.
7.2 Nam Tai shall deliver the Peripheral Products to SCEE or SCEE's carrier
FOB China address to be advised or such other address as may be agreed
by the parties in writing by the Delivery date(s) specified in the
Contract (which shall be not more than 4 weeks from the date of the
Purchase Order), or such other date as may be agreed between the
parties. Where Delivery of any Peripheral Products is likely to be
delayed Nam Tai shall notify SCEE of the relevant facts and
circumstances as soon as possible.
7.3 Should the delivery of the Peripheral Products be delayed for more than
2 weeks, the following shall be applicable
7.3.1. Nam Tai shall send to SCEE a letter describing the occurred
situation and explaining the reasons why Nam Tai was not
successful in dealing with the matter. In addition, the letter
shall state what actions Nam Tai will take in order to ensure
that a similar situation will not occur again and also
describe how the actions will be implemented.
7.3.2. SCEE shall, unless the delay is due to force majeure as set
out in Clause 20 below or by an act of SCEE, then be entitled
to a reduction of the price payable. Such reduction shall
equal one (1) percent of the total sum payable under the
relevant purchase order.
7.4 SCEE acknowledges that any liability of Nam Tai to pay liquidated
damages under Clause 7.3 shall represent SCEE's sole financial remedy
in respect of any delay by Nam Tai in Delivery of the Peripheral
Products, but shall be without prejudice to any other rights and
remedies available to SCEE. For the avoidance of doubt unless the delay
is due to force majeure as set out in Clause 20 below or by an act of
SCEE, if any specified Delivery date is not met within 30 (whether in
whole or in part), then Narn Tai shall be deemed to be in material
breach of this Agreement.
7.5 Nam Tai shall deliver the Peripheral product properly packed to ensure
against risks in transit to the Territory. Nam Tai shall include for
all shipments a packing list that contains SCEE's Purchase Order
number, quantity shipped and number of cartons comprised in the
shipment. Nam Tai's packing list is to
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be enclosed in an envelope and is to be adhered to an exposed side of a
shipping container to allow easy access. In addition a copy of such
packing list is to be enclosed in a prominent position inside each
container.
7.6 SCEE shall arrange inspection of the shipments in China on Delivery for
conformity with shipping documents only. SCEE shall have the right to
inspect the Peripheral Products at any time prior to or after Delivery
and SCEE shall have the right to reject non-conforming or defective
Peripheral Products which shall be replaced by Nam Tai at its cost FOB
China within 30 days of notification by SCEE. SCEE shall invoice Nam
Tai for the actual costs of shipping, insuring and importing such
replacement Products into the Territory.
8. DOCUMENTATION
8.1 Nam Tai shall supply adequate sets of the Documentation in advance of
Delivery, in hard copy and, if requested by SCEE, in electronic form
(in such format as may be reasonably requested by SCEE). The
Documentation shall include sufficient drawings and instructions to
allow SCEE to operate and maintain the Peripheral Products, including
details of any special environmental controls required to ensure that
the Peripheral Products meet the Specifications.
8.2 Nam Tai shall supply at SCEE's request, free of charge for each
Peripheral Product supplied, extra sets of Documentation.
9. RISK AND TITLE
9.1 The Peripheral Products shall be at the risk of Nam Tai during transit
to China and Delivery and Nam Tai undertakes to insure the Peripheral
Products against loss or damage during transit and Delivery.
9.2 Nam Tai warrants that the Peripheral Products passed in required
product qualification shall be supplied with full title guarantee.
9.3 Title, risk of loss or damage and responsibility to insure the
Peripheral Products shall pass from Nam Tai to SCEE at the FOB point
following Delivery.
10. QUALITY ASSURANCE AND FACTORY INSPECTION
10.1 Nam Tai shall test and inspect the Peripheral Products in conformity
with ISO 9000 and 9001 Quality Standards prior to shipment and shall
retain and make available a copy of all factory acceptance test reports
to SCEE on request. SCEE reserves the right to periodically audit Nam
Tai's product quality assurance and test procedures in any reasonable
manner including observation by SCEE of tests being conducted on the
Peripheral Products, subject to SCEE giving Nam Tai at least one week's
written notice of the requested observation date. SCEE shall arrange
for pre-shipment inspection from time to time at its cost at Nam Tai's
manufacturing facility. Nam Tai agrees to notify SCEE as soon as
reasonably practicable (and in any event by not more than 14 days
before the proposed shipment date) of the date the Peripheral Products
will be loaded for shipment to China with a view to SCEE arranging for
inspection of loading at its option.
10.2 SCEE may provide materials on loan to enable Nam Tai to test to the
Specifications. SCEE shall retain title in and control over any
materials made available to Nam Tai and may require the return of the
same on demand.
10.3 SCEE shall provide 10 PAL debugging stations for production testing
only and SCEE shall retain title in and control over these debugging
stations which are for factory use only.
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10.4 Nam Tai's factory address is:
Gusu Industrial Estate,
Xixiang, Baoan,
Shenzhen, PRC
Postal Code: 518126
11. ACCEPTANCE
11.1 Unless otherwise agreed between the parties in writing, acceptance by
SCEE of each Peripheral Product shall occur on successful completion of
the Acceptance Tests in respect of that Peripheral Product in
accordance with Schedule 1.
11.2 Acceptance Tests shall be carried out in accordance with the terms of
Schedule 2.
11.3 Acceptance Tests shall commence as soon as reasonably practicable after
Delivery (and in any event within 14 days thereafter, unless otherwise
agreed between the parties in writing).
11.4 Nam Tai shall, without charge, make available staff, materials and
facilities reasonably necessary for performance of the Acceptance
Tests.
11.5 Nam Tai shall be entitled to have present at the Acceptance Tests such
authorised representatives as it reasonably considers necessary.
11.6 If any of the Peripheral Products fail to pass the Acceptance Tests,
Nam Tai shall promptly investigate and rectify all faults to enable the
Acceptance Tests to be repeated. If, following that investigation and
repetition of the Acceptance Tests, the Peripheral Products still fail
to pass the Acceptance Tests, then SCEE will be entitled to reject the
Peripheral Products or treat the failure as a material breach for the
purposes of Clause 15.1.1.
12. RETURNS
12.1 SCEE shall notify Nam Tai in writing on a monthly basis of numbers of
Returns which verified as manufacturing defects and Nam Tai shall ship
replacement units at its cost to SCEE within 60 days of such
notification. Shipment shall be FOB China provided that Nam Tai shall
be liable for costs actually incurred by SCEE in shipping the
replacements to the Territory including freight, insurance, tax and
duties and shall be invoiced by SCEE on a monthly basis in respect of
any such costs.
12.2 Nam Tai agrees that in the event of Product Failure should the failure
rate exceed 1% of sold quantity of the Peripheral Products manufactured
by Nam Tai then Nam Tai shall either replace or reimburse the full cost
of the defective Peripheral Products as agreed between the parties.
12.3 SCEE shall at its cost co-ordinate return of Returns to its authorised
Returns facilities. SCEE agrees that it shall at its cost audit and
dispose of Returns, provided that Nam Tai shall bear the costs of
auditing and disposal of Returns exceeding 2% ("Excessive Returns") of
the quantity under a purchase order together with the cost of returning
such Excessive Returns to SCEE's authorised Returns facilities. At Nam
Tai's request and cost SCEE shall arrange for all Returns to be
despatched to Nam Tai's nominated address. SCEE shall invoice Nam Tai
on a monthly basis for costs of auditing and disposal of Excessive
Returns or the despatch of Returns to Nam Tai at Nam Tai's request
pursuant to this Clause 12.3.
12.4 SCEE shall maintain audit and disposal records in respect of Returns
which Nam Tai may inspect from time to time during office hours subject
to Nam Tai giving SCEE at least one week's prior written notice. Nam
Tai shall be entitled to inspect Returns which have not been disposed
of during office hours on similar notice.
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12.5 SCEE will provide Nam Tai with a monthly Returns/Product Failure report
for the Territory showing units of Peripheral Products purchased in the
Territory which are returned to SCEE's authorised Return facilities
during the relevant month by country, by number of units and by reason
for the return.
13. TECHNICAL SUPPORT AND PROMOTIONAL ASSISTANCE
13.1 Subject to Clause 13.2, SCEE agrees that it shall at its cost during
the Term provide an after sales service and technical support for
customers in the Territory in relation to the Peripheral Products by
providing access to SCEE's Customer Service Helpline during normal
business hours Monday to Friday.
13.2 In the event Excessive Returns result in SCEE's Customer Service
Helpline receiving calls 20% or more in excess of the average number of
calls in relation to Peripheral Products per month SCEE reserves the
right to invoice Nam Tai on a monthly basis for the costs of providing
its Customer Service Helpline to Peripheral Products customers if the
said increase of number calls is caused solely by the Peripheral
Products manufactured by Nam Tai.
13.3 Nam Tai will provide 100 samples of the Peripheral Products to SCEE
free of all charges, duties, taxes and levies for the purposes
technical support training and promotional purposes. Nam Tai shall
assist with training of SCEE's technical support staff to the extent
reasonably required by SCEE. SCEE undertakes not to sell such
promotional samples but use them only to procure orders.
14. PRICE AND PAYMENT
14.1 The price payable for the Peripheral Products is set out in Schedule 3,
inclusive of packaging costs. All unit pricing is FOB China.
Accordingly (i) Nam Tai shall be responsible for arranging and the cost
of insurance and shipping to Delivery, compliance with any applicable
export controls and regulations, and all applicable export licences,
duties, taxes and other charges payable on export; and (ii) SCEE shall
be responsible for arranging and the cost of insurance and shipping
from Delivery, and all applicable import duties, levies and sales taxes
and other charges payable on import.
14.2 Unless otherwise agreed in writing, payment of all amounts due by SCEE
under this Agreement shall be paid within 30 days from the date of
invoice, subject to receipt of Nam Tai's valid and correct invoice, by
BAGS transfer to Nam Tai's nominated account.
14.3 Any sums payable by Nam Tai pursuant to this Agreement whether in
respect of Returns pursuant to Clause 12.2, Product Failure pursuant to
Clause 123, technical support pursuant to Clause 13.2, liquidated
damages pursuant to Clause 7.3, sump SCEE may lawfully claim from Nam
Tai pursuant to Clause 14.4 or otherwise, shall be paid in Euros by
telegraphic transfer to SCEE's nominated bank account within 30 days of
the date of SCEE's invoice. In the event Nam Tai fails to make any
payment by the due date Nam Tai shall be liable to pay interest on the
overdue amount at the rate of 3% per annum above the base rate from
time to time of Barclays Bank which interest shall accrue on a daily
basis from the date when payment becomes overdue until full payment is
made (whether before or after judgment).
14.4 SCEE shall be entitled to invoice Nam Tai for any sums it may lawfully
claim from Nam Tai including any duties, charges or liabilities that
ought to have been paid by Nam Tai but which SCEE pays or is held
liable.
15. TERMINATION
15.1 Either party shall have the right at any time by giving notice in
writing to the other party to terminate this Agreement or any Contract
immediately on the occurrence of any of the following events:
15.1.1 the other party commits a material breach of any of the terms
of this Agreement which is incapable of remedy or which it
fails to remedy within thirty days of receiving written notice
from the other party to do so; or
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15.1.2 the other party becomes or is deemed to be insolvent as
defined in the Insolvency Xxx 0000 or equivalent legislation
or unable to pay its debts or a petition is presented or order
made or meeting convened or resolution passed for the purpose
of winding up, or enter into liquidation whether compulsorily
or voluntarily or compounds with its creditors generally or
has a receiver, administrator or administrative receiver
appointed over all or any part of its assets or any proposal
is made for a company voluntary arrangement in respect of that
party, or that party threatens to take or takes or suffers any
similar action in consequence of debt or insolvency in any
jurisdiction; or
15.1.3 the other party challenges or takes any step which is
inconsistent with the Intellectual Property rights of the
terminating party.
15.1.4 the other party undergoes a change of Control, it being
obliged to notify the terminating party in writing within
thirty (30) days after such change.
15.2 At such time SCEE is required by it's parent company to deal only with
"Green Partners" SCEE reserves the right to give Nam Tai 3 months
notice of termination.
15.3 Termination of this Agreement shall be without prejudice to any
subsisting right or remedy of either party in respect of any matter
which arose before such termination nor shall it affect the obligations
of either party in respect of any subsisting obligation remaining to be
performed thereafter or the right of SCEE to continue to receive and
resell any stock and Peripheral Products which it has already ordered
or received from Nam Tai or for which it has accepted orders from third
parties during the Term.
16. ENHANCEMENTS AND MODIFICATIONS AND NEW VERSIONS
16.1 Nam Tai will not make any change to the specification of the Peripheral
Products manufactured by Nam Tai without prior approval by SCEE.
17. WARRANTIES AND UNDERTAKINGS BY NAM TAI
17.1 Nam Tai warrants and undertakes that it will at all times during the
continuance of this Agreement and where applicable, following
termination of this Agreement observe and perform the terms and
conditions set out in this Agreement and in particular:-
17.1.1 that it has the right, power and authority to enter into, and
fully to perform its obligations under this Agreement and each
Contract, and that its entry into and performance under the
terms of this Agreement will not infringe the rights of any
third party or cause it to be in breach of any obligations to
a third party. Without limitation, Nam Tai warrants that it is
and shall be entitled to supply the Peripheral Products to
SCEE without recourse to any third party. Nam Tai undertakes
that it shall not, during the Term of this Agreement, enter
into any contract or accept any obligation I inconsistent or
incompatible with Nam Tai's obligations under this Agreement;
17.1.2 that it shall efficiently procure manufacture and assembly of
the Peripheral Products to promptly meet orders from SCEE as
soon as possible.
17.1.3 that the Peripheral Products delivered under this Agreement
shall be free from defects in materials and workmanship and
shall perform substantially in conformance with the
Specifications for a period of twelve (12) months from the
date of purchase by the consumer ("the Warranty Period"). This
warranty shall include parts and labour and shall apply to all
Returns that are or become defective during the applicable
Warranty Period and are returned to SCEE or are found by SCEE
to be defective. Within the Warranty Period Nam Tai will
replace, without charge to SCEE, all Returns.
17.1.4 that it shall ensure that the Peripheral Products, including
its packaging are of merchantable and satisfactory quality,
fit for purpose, are subject to a high standard of quality
control, conform with
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sample and all applicable laws and regulations in the EU
including for the avoidance of doubt Sony's pan-national
technical standards and are at all times covered by product
liability and errors and omissions insurance, a copy of the
policy for which shall be provided to SCEE on demand and SCEE
shall be noted when the relevant insurance policy expires
during the Term of this Agreement.
17.1.5 that any Peripheral Products supplied under this agreement
comply with EC Directive 76/769/EEC (as amended) and the Dutch
Cadmium Decree WMS 1999. Specifically the test proving
compliance to EC Directive 76/769/EEC must conform to standard
EN1122 and any certificates submitted must reflect this. Nam
Tai shall with respect to cadmium provide a certificate from
an independent testing house (acceptable to SCEE) confirming
that the Products do not exceed the level of cadmium set out
in such Directive or Decree.
17.1.6 that it shall promptly replace any Peripheral Products which
SCEE notifies to Nam Tai are Returns which SCEE or its
customers believe to have a defect in materials or
workmanship;
in the event SCEE incurs any reasonable costs or losses or claims as a
result of breach of the above warranties, Nam Tai shall indemnify and
reimburse SCEE such costs or losses (including legal costs) on demand.
18. INTELLECTUAL PROPERTY AND INDEMNITY
18.1 Nam Tai warrants and confirms to SCEE that (i) Nam Tai owns or has the
right to license to SCEE all the Intellectual Property Rights in the
Peripheral Product other than those rights already owned by either SCEE
or Omnivision Technologies Inc. or their respective affiliates and (ii)
the sale, use, distribution, marketing, promotion, and any other
dealings with the Peripheral Products by SCEE, its agents,
distributors, licensees and customers under this Agreement will not in
any way violate or infringe any Intellectual Property Rights, moral
rights, or privacy rights of any third party.
18.2 Nam Tai hereby grants SCEE all such rights and licences in relation to
the Peripheral Products and all its elements including its name and
packaging as SCEE requires in order for SCEE and its agents,
distributors and licensees to freely and exclusively market,
distribute, promote, sell and authorise use of the Peripheral Products
during the Term and thereafter throughout the Territory.
18.3 SCEE warrants and confirms to Nam Tai that SCEE owns or has the right
to license the Registered Design and the Trademarks. For the avoidance
of doubt, any Intellectual Property Rights arising out of
modifications, variations or alterations made to the Design of the
Peripheral Product shall remain vested in SCEE.
18.4 SCEE hereby grants Nam Tai a non-exclusive licence to use the
Trademarks and any other Intellectual Property Rights of SCEE necessary
in order to manufacture the Peripheral Products during the Term
throughout the Territory for supply to SCEE and its nominated
distributors. Nam Tai shall have no other rights in respect of the
Trademarks or any other Intellectual Property Rights of SCEE and shall
not use the Trademarks or such Intellectual Property Rights for any
purpose other than as provided for expressly in this Agreement.
18.5 Nam Tai now indemnifies SCEE and any Affiliate of SCEE, its
sublicensees and assigns from and against any and all actions,
proceedings, damages, awards, losses, demands and expenses (including
legal costs on an indemnity basis) arising from or which result from
any breach of the warranties set out in this Clause 18 if the same is
not the responsibility of SCEE.
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19. CONFIDENTIALITY
Without prejudice to the Non Disclosure Agreement signed by Nam Tai,
each of the parties agrees that it will not at any time after the date
of this Agreement make use of or disclose to any person (other than to
those of its officers, employees and advisors in whose province it is
to know the same) any Confidential Information (other than information
properly available to the public or disclosed pursuant to an order of a
court of competent jurisdiction) relating to the other party or its
business including the identity of its customers, its products,
finances, contractual arrangements or methods or doing business and,
without limitation, any books and records which, by law, may be
required to be disclosed by either party to the other, and each party
shall use its respective reasonable endeavours to prevent the
publication or disclosure of any such Confidential Information.
20. FORCE MAJEURE
Neither party shall be liable for any loss or damage incurred or
suffered by the other party arising from the first party's delay or
failure to fulfil any of its obligations under this Agreement to the
extent that such delay or failure is caused by any cause or
circumstance beyond that party's reasonable control and not due to its
negligence. Subject to the party delaying promptly notifying the other
party promptly in writing of the reason for the delay, the likely
duration of the delay and using its best endeavours to cure the breach,
the delaying party's obligations (to the extent affected by the delay),
shall be suspended during the period that the cause persists provided
that if performance is not resumed within 30 days of that notice the
non-delaying party may forthwith by notice in writing terminate this
Agreement or any Contract (or part thereof) affected.
21. VARIATION
This Agreement may only be varied by agreement in writing signed by the
authorised representatives of both parties.
22. WAIVER
No failure or delay by any party in exercising any right power or
remedy under this Agreement shall operate as a waiver of that right
power or remedy. No waiver of any provision of this Agreement shall be
effective unless given in writing. Any waiver of any provision of this
Agreement shall not be construed as a waiver of any other provision or
such provision in relation to any future or continuing event or
circumstance.
23. NOTICES
Any notices or communications given under this Agreement shall be
validly given if delivered by courier to the recipient's address set
out at the head of this Agreement, or if by facsimile to SCEE at
facsimile number x00 (000) 0000 0000 attn Director of Legal and
Business Affairs and to Nam Tai at facsimile number 00-000-0000-0000,
attn Xx. Xxxxxx Xxx. Proof of delivery if sent by courier and
confirmation of transmission if sent by facsimile shall be sufficient
evidence of service.
24. ASSIGNMENT AND SUBCONTRACTING
Except that SCEE may assign its rights and obligations hereunder to
another company within the Sony Corporation or Sony Computer
Entertainment Inc group of companies, the rights and obligations under
this Agreement shall not be assigned by either party without the prior
written consent of the other. Nam Tai may subcontract its manufacturing
obligations under this Agreement provided for the avoidance of doubt
that Nam Tai remains liable for the acts and omissions of its
subcontractor and has advised SCEE in writing prior to manufacturing.
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PlayStation PeripheralSupply Agreement
CONFIDENTIAL
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25. SEVERABILITY
The invalidity or unenforceability of any term of or any right arising
pursuant to the Agreement shall not in any way affect the remaining
terms or rights.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding
between the parties with respect to its subject matter and supersedes
any prior agreement, understanding or arrangement between the parties
whether oral or in writing. No representation, undertaking or promise
shall be taken to have been given or be implied from anything said or
written in communications between the parties prior to the date this
Agreement was executed except as set out in this Agreement. Neither
party shall have any remedy in respect of any untrue statement made to
it upon which it has relied in entering into this Agreement (unless
such untrue statement was made fraudulently) and that party's only
remedies shall be for breach of contract as provided in this Agreement.
For the avoidance of doubt, any SCEE's existing or future standard
terms and conditions in relation to any Purchase Order shall not form
part of this Agreement and/or the Purchase Order.
27. LIMITATION OF LIABILITY
27.1 Neither party shall be liable for any consequential, incidental,
indirect, economic or punitive damages whatsoever (including but not
limited to damages for loss of business or personal profits, business
interruption, loss of business, or personal or confidential
information, or any other pecuniary loss, damages for loss of privacy,
or for failure to meet any duty, including any duty of good faith, or
to exercise commercially reasonable care or for negligence) arising out
of or in any way related to this Agreement even if the parties have
been advised of the possibility of such damages. This limitation shall
be effective even if any remedy fails of its essential purpose.
27.2 Nam Tai's maximum aggregate liability to SCEE in respect of any
Contract, whether arising under any indemnity, for any breach of its
obligations under this Agreement, shall in no circumstances exceed 150%
of the price payable pursuant to such Contract.
27.3 Nothing in this Agreement or in any contract shall exclude or in any
way limit either party's liability for fraud or for death or personal
injury caused by its negligence, or any other liability to the extent
that such liability may not be excluded or limited as a matter of law.
27.4 For the avoidance of doubt, all factory and any other tests mentioned
in this Agreement are only applicable to the Peripheral Product and are
not applicable to any other products, software, packing materials or
whatever which may be packed and/or sold together with the Peripheral
Product.
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PlayStation PeripheralSupply Agreement
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28. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
English law and the parties submit to the jurisdiction of exclusive
jurisdiction of the English courts for the purposes of enforcing any
claim arising under this Agreement without prejudice to SCEE's right to
bring proceedings in any other court having jurisdiction where Nam Tai
is resident from time to time. Nam Tai irrevocably agrees to appoint an
agent for service of process in the United Kingdom for the purposes of
this Clause 27 with 30 days of the date of this Agreement and shall
notify SCEE of the name and address of such agent within 5 working days
of such appointment If for any reason such agent ceases to act as such
or ceases to have an address in England. Nam Tai irrevocably agrees to
appoint a substitute process agent acceptable to SCEE and to deliver to
SCEE a copy of the new process agent's acceptance of that appointment
within 30 days of such cessation.
Signed by the authorized representatives of the parties on the date set out
above
SONY COMPUTER ENTERTAINMENT NAMTAI ELECTRONIC(SHENZHEN)
EUROPE LIMITED CO., LTD
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
--------------------------- -----------------------------
Signature Signature
Xxxxxxxxxxx Xxxxxxx Xxxxxx Xxxx
--------------------------- -----------------------------
Name Name
President Director
--------------------------- -----------------------------
Title Title
Sony Computer Entertainment Europe
PlayStation PeripheralSupply Agreement
CONFIDENTIAL
Page 12
SCHEDULE 1
PRODUCT DESCRIPTION
Pls refer to the attached specification.
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PlayStation PeripheralSupply Agreement
CONFIDENTIAL
Page 13
SCHEDULE 2
ACCEPTANCE TESTS
Test Marks of CE, FCC and C-Tick applied for by Nam Tai.
SCEE will perform the following test at the factory:
When the camera's Blue LED is lit and Red LED flashes, a live image displays on
the TV screen. The software reads the camera's VIDs and PIDs and displays these
two codes on the TV screen. If there is a live image display and VIDs and PIDs
code on the TV screen, then the test is successful.
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PlayStation PeripheralSupply Agreement
CONFIDENTIAL
Page 14
SCHEDULE 3
PRICE
Unless otherwise agreed in writing by the parties, the price payable by SCEE for
the Peripheral Products pursuant to Clause 14 is set out below. For the
avoidance of doubt, the net price is the actual price paid by SCEE to Nam Tai
pursuant to the payment method referred to in Clause 14.2 of this Agreement.
Net price/unit
--------------
$15
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PlayStation PeripheralSupply Agreement
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