Exhibit 10.10
CONFIDENTIAL
UMBRELLA PURCHASE AGREEMENT
(Standard Agreement
for the Purchase of Products)
This Agreement, effective as of September 30, 1998,
by and between,
WhoVision, Inc., a corporation having its principal office at 000 Xxxxx Xxxxxx
Xxxxx, Xxxx Xxxxxx, 00000 and its wholly owned subsidiaries (hereinafter
referred to as "Supplier") and
Philips Electronics North America Corporation, a corporation having its
principal place of business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000,
XXX, for the purpose hereof acting through the Business Group Flat Panel Display
which forms part of the worldwide Philips Components Division (hereinafter
referred to as "Philips"). Philips is also acting on behalf of its affiliated
companies. Philips and its affiliated companies are hereinafter collectively
referred as "Participant" or "Participants."
Supplier and Philips sometimes being referred to herein singularly as a "party"
and collectively as the "parties."
W I T N E S S E T H
WHEREAS, Philips and its affiliated companies are active in the field of design,
development, manufacture and sale of a wide range of components;
WHEREAS, Supplier is engaged in and active in the field of design, development,
manufacture and sale of a range of fingerprint sensor systems and is willing and
able to develop and manufacture such Products (as defined in Section 1.1) for
the Participants;
WHEREAS, Philips and WhoVision want to establish the terms and conditions
applicable to Purchase Orders, as defined hereinafter, placed by Participants
with Supplier for the delivery of certain Products during the term of this
Agreement;
NOW, THEREFORE, WhoVision and Philips hereby agree on this 30th day of
September, 1998, as follows:
ARTICLE 1
SCOPE AND BASIC INTENT
1.1 This purpose of this Agreement is to establish the terms and conditions
applicable to the purchase by Participants from Supplier of the
products identified in Annex 1 hereto (the "Products") complying with
the respective specifications contained in Annex 2 hereto (the
"Specifications"). The definition of "Products" also automatically
includes "WhoVision Products," as such term is defined in the
Technology Transfer Agreement between Supplier and Philips dated
September 30, 1998. Additional Products may be added by mutual
agreement of the parties. Annexes 1 and 2 will then be amended
accordingly.
1.2 Any of the Participants may issue purchase orders ("Purchase Orders")
to Supplier for the supply and delivery of Products and WhoVision
undertakes to supply and deliver or cause to be supplied and delivered
such Products to the ordering Participant, all in accordance with the
terms and conditions of this Agreement.
ARTICLE 2
LEAD-TIME AND FORECASTS; RESCHEDULING AND CANCELLATION
2.1 Participants agree to provide to Supplier's contact address identified
in Annex 4 hereto, during the Term of this Agreement on a monthly basis
written rolling non-binding Product purchase forecasts in a format as
specified in Annex 1 indicating by Product, the quantity of Products to
be shipped in each of the next twelve (12) months ("Rolling
Forecasts"). Rolling Forecasts will be used for Supplier's capacity
planning purposes. The structure of each month's Rolling Forecast shall
be with due regard to the applicable lead-times.
2.3 Once per quarter the Rolling Forecast shall be accompanied by a
non-binding long term forecast(s) in a format as specified in Annex 1
indicating by Product the total quantity of Products anticipated to be
required for each of the successive periods of three months from the
twelfth (12th) through the twenty fourth (24th) months. The long term
forecast will be fore information and resource planning purposes.
2.4 It is understood by Philips that the manufacture of Products can only
be initiated upon receipt by Supplier of a firm Purchase Order from a
Participant and the subsequent confirmation thereof by Supplier, all in
accordance with Article 3 hereof.
2.5 A Participant may request that Supplier reschedule the original
Scheduled Shipment Date (defined in Section 5.3) for Products
(excluding discontinued products and warranty
replacement orders) but may only do so pursuant to the criteria set
forth in Annex 1. All requests to reschedule the original Scheduled
Shipment Dates are subject to Supplier's written acceptance, which
shall not be unreasonably withheld.
2.6 A Participant may cancel a Purchase Order in whole or in part if such
Participant gives notice pursuant to the criteria set forth in Annex 1.
ARTICLE 3
PURCHASE ORDERS AND CONFIRMATION
3.1 Purchase Orders for Products shall be submitted by Participants to
Supplier at Supplier's contact address listed on Annex 4, on separate
Purchase Order forms, or, if so agreed, by EDI.
3.2 Any Purchase Order issued hereunder by a Participant to Supplier shall
include the following information:
o Reference to this Agreement by its number;
o (Reference to) Products by part number and description;
o Quantity of Products;
o Shipping and invoicing address;
o Requested delivery date(s);
o (Reference to) the applicable prices, discounts, and payment terms;
o (Reference to) any additional terms and conditions, e.g.,
additional logistic information.
3.3 Unless otherwise agreed in writing between Participant and Supplier,
Supplier may confirm and thereby accept each Purchase Order placed in
accordance with this Agreement (or advise Participant of required
clarifications) in writing promptly, but ultimately within 10 business
days, after receipt thereof. Purchase Order confirmations shall include
a reference to this Agreement by its number and shall furthermore
confirm all of the information provided in the Purchase Order.
3.4 Supplier shall supply and deliver to Participant the Products according
to the agreed Specifications as per Annex 2 hereto and in accordance
with the terms and conditions set forth in this Agreement.
3.5 [Intentionally omitted.]
3.6 Notwithstanding any provisions to the contrary that might be set forth
in a Purchase Order or in the conditions of sale or other document of
Supplier submitted with the Purchase Order confirmation, the preprinted
terms and conditions on the face and reverse side of a Purchase Order
or any other document sent with or subsequent to the Purchase Order
confirmation of Supplier shall not apply to or become part of the
Purchase Order and/or the delivery obligations resulting therefrom,
unless any such term or condition has been expressly agreed upon in
writing by Participant and Supplier.
3.7 It is understood that Supplier's supply of Products requires lead-times
as specified per Product in Annex 1. Unless agreed otherwise between
Supplier and Participant, Participant's Purchase Order will take into
account such agreed lead-times.
ARTICLE 4
DELIVERY TERMS, PRICES, DISCOUNTS, AND PAYMENT TERMS
4.1 The Prices as per Annex 1 are in the currencies identified for each
Product, exclusive of sales taxes, duties or similar levies.
4.2 Sales taxes, duties or similar levies will be added by Seller to the
Prices where Seller is required by law to pay or collect them and will
be paid by Buyer in the form of a surcharge, unless Buyer supplies
Seller with appropriate tax exemption certificates, and holds Seller
harmless from all taxes and expenses incurred or arising out of and to
the extent of the use of such certificates.
4.3 Prices will be revised periodically and published in a Price List. It
is intended and foreseen that prices will decrease over time.
4.4 The price of any Products ordered under any Purchase order placed
before any revised prices have become effective according to the
preceding subclause shall only be affected by any subsequent price
increase according to the procedure as described in said subclause, if
and to the extent the required period of delivery of such Products
shall exceed a period of six (6) months as from the effective date of
the price increase.
4.5 In the event of unforeseen circumstances affecting Participants or
Supplier or both and/or in the event the price/performance ratio of
Products deteriorates as compared to competitive products, the parties
will jointly review the situation and attempt to find a solution
reasonably acceptable to the parties. [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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[Confidential Treatment requested for redacted portion of the document]
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4.6 At the end of each twelve (12) months period during the validity period
of this Agreement, WhoVision shall report in writing to Philips the
types, quantities, discounts, and total purchase price of the Products
supplied by Supplier to all of the Participants during such period
and/separately, of those ordered but not yet supplied by Supplier. The
same applies as regards products and services which are not defined
within the scope of this Agreement.
4.7 Supplier shall allocate available product among strategic customers.
Customers characterized as strategic may vary from time to time, but
shall be a small group of customers that have a significant volume of
actual or expected purchases. [xxxxxxxxxxxxxxxxxxxxxxxxxx
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xxxxxxx] The establishment of these practices and administration of
material planning and allocation issues shall be consistent with
industry practice as in other computer related peripheral/component
suppliers. [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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[xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx] On a short-term
basis, Supplier may allocate additional capacity when available.
[xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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[xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]. All orders
from strategic customers shall be subject the requirement of Rolling
Forecasts. Flexibility and re-schedule percentages are limited by
lead-time and available capacity as set forth in Appendix 1.
ARTICLE 5
SHIPMENT AND DELIVERY
5.1 Unless otherwise agreed, the Incoterms 1990 edition issued by the
International Chamber of Commerce, Paris, France, shall apply to
deliveries under this Agreement.
5.2 Parties agree that delivery shall take place on an "Ex Works" basis.
Supplier reserves the right to store the Products in consignment at
Participant's risk and expense as and when they are available to
Participant in accordance with above.
[Confidential Treatment requested for redacted portion of the document]
5.3 Title shall pass to Participant at the time the Products have been
placed at the disposal of Participant in accordance with Article 5.2
hereof and Participant shall bear all costs relating to the Products as
from such time.
5.4 Except in the case of a notified excusable delay as referred to in
Article 8 hereof, should Supplier fail to ship Products on the agreed
shipment date, Participant will give Supplier written notice of
non-shipment, allowing Supplier ten (10) business days from the date
of receipt of Participant's notice within which to cure non-shipment
before Supplier's delivery shall be deemed delinquent. If the delivery
is deemed delinquent, Participant's sole remedy shall be to cancel or
reschedule, at no cost to Participant, the delinquent portion of the
Purchase Order for the applicable Products. Participant shall be
responsible for payment for goods shipped and provided in accordance
with Purchase Orders in place, according to the terms of payment
described herein.
5.5 Products shall be delivered in such packing as is suitable for the mode
of transport to be used and Supplier shall provide each packing with
such indications as the relevant Participant may specify from time to
time.
5.6 Supplier shall include one (1) copy of the packing slip with each
delivery or shipment to Participant, and this packing slip shall
contain the following information:
o Reference to Purchase Order;
o Description of Product;
o Numbers of containers, sizes and quantities;
o Authorizing Personnel.
Supplier shall include such additional information as is necessary to
assure correct payment, accountability, and traceability to a
particular invoice.
5.7 In the event Participant contests delivery, Participant must request a
proof of delivery from Supplier within thirty (30) days of the date of
Supplier's invoice; otherwise, delivery shall be deemed complete.
ARTICLE 6
TYPE APPROVAL/QUALITY PERFORMANCE/INSPECTION
6.1 All Product to be supplied by Supplier to Participants pursuant to this
Agreement shall be checked and tested by Supplier in accordance with
the requirements specified in Annex 3 hereto and Supplier shall keep
record of the test results at least four (4) years after delivery of
each Product and on request provide Participant with copies thereof.
Supplier shall only
supply Products which comply with the Specifications and other agreed
requirements, if any.
6.2 Each participant may inspect the delivered Products at their
destination within sixty (60) days after the arrival date at the place
of destination. Each Participant shall have the right to reject all or
any of the Products which do not meet the inspection standard, provided
that such claim shall be served to Supplier with supporting evidence
within ninety (90) days after the arrival date of the Products at the
place of destination. In case of a rejection, Supplier shall replace
the applicable Products free of charge within a reasonable period of
time, it being understood that all costs connected with the forwarding
of such replacement shall be for Supplier's account.
ARTICLE 7
INVOICING AND PAYMENT TERMS
7.1 Suppliers' invoice shall be issued upon delivery of the Products.
Payment of the invoice is due within thirty (30) days from the date of
Supplier's invoice. All payments shall be made without any discount
whatsoever. Supplier shall submit the invoices to the addresses stated
therefore in Annex 4 hereto.
Invoices shall be submitted in duplicate.
7.2 If shipments are made in installments, Supplier shall invoice the
Participant for each installment separately.
7.3 Unless otherwise agreed payment is to be made by wire transfer to
Supplier's bank account as mentioned in Annex 4. All bank charges,
taxes, levies, duties and other cost as may be due or become due on
payments hereunder are for Participant's account.
7.4 Participant hereby waives any and all rights to offset existing and
future claims against any payments due for Products sold hereunder or
under any other agreements that Participant and Supplier may have and
agrees to pay the amounts hereunder regardless of any claimed offset
which may be asserted by Participant or on its behalf.
7.5 Participant hereby grants Supplier a purchase money security interest
in the Products and in any proceeds therefrom (including accounts
receivable) as security for its obligations hereunder until the entire
amount due has been paid, and will execute any document to perfect this
security interest requested by Supplier.
ARTICLE 8
EXCUSABLE DELAY
8.1 Neither Party shall be responsible for a failure in the performance of
this Agreement or of any confirmed Purchase Order if:
(i) such failure cannot reasonably be attributed to such party,
taking into account industry practice; or
(ii) such Party cannot be held accountable for such failure because
it is caused by Force Majeure as defined in Section 8.3
hereof.
In case of such a failure, the performance of the relevant part of the
confirmed Purchase Order will be suspended, without the non-performing
party being held responsible for any damage resulting therefrom to the
other party.
8.2 The non-performing party will notify the other party on the occurrence
of such failure and the estimated duration as soon as possible. In the
event the suspension has lasted for three (3) consecutive months or as
soon as it is established that the suspension will last for at least
three (3) consecutive months, either party is entitled to terminate
partially or in whole the confirmed Purchase Order without being held
liable to any indemnity whatsoever towards the other party.
8.3 The expression "Force Majeure" shall mean and include circumstances or
occurrence beyond one party's reasonable control - whether or not
foreseeable at the time of this Agreement or the Purchase Order or
Order Confirmation - in consequence of which one party cannot
reasonably be required to execute its obligations under this Agreement
or the confirmed Purchase Order. Such circumstances or occurrences
include but are not restricted to: acts of God, war, civil war,
insurrections, fires, floods, labor disputes, epidemics, governmental
regulations and/or similar acts, freight embargoes, non- availability
of any permits, licenses and/or authorizations required, defaults or
delays of suppliers or subcontractors and inability or impracticability
to secure transportation, facilities, fuel, energy, labor, materials or
components.
ARTICLE 9
LIMITED WARRANTY AND DISCLAIMER
9.1 Supplier warrants to Participant that the Products delivered pursuant
to this Agreement will, at the time of delivery and for a period of
twelve (12) months thereafter, be free from defects in design,
construction, manufacture, material and workmanship and shall conform
to the Specifications. Supplier's obligations with respect to claims
under this warranty shall include a warranty adjustment consisting, at
Participant's option, of (i) repair or replacement of such defective or
non-conforming Products, or (ii) an appropriate credit of the purchase
price thereof, provided that Supplier is informed by Participant in
writing promptly after the defects have revealed themselves.
9.2 The provisions of this Article 9 will survive the expiration or
termination for whatever cause of this Agreement.
9.3 This limited warranty and disclaimer does not cover:
(i) damage sustained by normal wear and tear;
(ii) damage arising as a consequence of negligence, misuse or
improper storage, installation, repair, alteration, or return
handling of the Products or parts thereof, other than by
Supplier.
(iii) damage resulting from environmental or stress testing, other
than by Supplier.
(iv) and damage arising as a consequence of continuous operating
beyond Supplier's published Product Specifications.
THE EXPRESS WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO PARTICIPANT
AND NOT TO PARTICIPANT'S CUSTOMERS, AGENTS OR REPRESENTATIVES OR ANY
OTHER THIRD PARTY AND EXCEPT FOR WARRANTY OF TITLE, IS IN LIEU OF ALL
OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, SUCH
OTHER WARRANTIES BEING SPECIFICALLY DISCLAIMED BY SUPPLIER.
ARTICLE 10
LIMITATION OF LIABILITY
10.1 IN NO EVENT SHALL EITHER PARTY'S LIABILITY FOR ANY BREACH OR ALLEGED
BREACH OF THIS AGREEMENT EXCEED THE TOTAL PURCHASE PRICE FOR PRODUCTS
CONCERNED, NOR SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS,
LOSS OF USE, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL
DAMAGES RESULTING FROM SUCH BREACH OR ALLEGED BREACH, INCLUDING BUT NOT
LIMITED TO EXCESS REPROCUREMENT COSTS, AND IRRESPECTIVE OF WHETHER SUCH
PARTY
HAS ADVANCE NOTICE OR ADVANCE KNOWLEDGE OF THE POSSIBILITY OF
SUCH DAMAGES.
10.2 SELLER'S PRODUCTS ARE NOT DESIGNED FOR USE IN LIFE SUPPORT DEVICES,
APPLIANCES OR SYSTEMS WHERE MALFUNCTION CAN REASONABLY BE EXPECTED TO
RESULT IN A PERSONAL INJURY. BUYER USING OR SELLING SELLER'S PRODUCTS
FOR USE IN SAID EQUIPMENT DOES SO AT ITS OWN RISK.
ARTICLE 11
PRODUCT AND PRODUCTION CHANGES/DISCONTINUED PRODUCTS
11.1 Supplier reserves the right to make Product and/or production changes
with Participant's prior written approval, not to be unreasonably
withheld, provided that said changes shall not negatively affect form,
fit or function of the Products and their performance characteristics
or their integrability into Participant's systems or products.
11.2 If production of any Product covered by this Agreement is to be
permanently discontinued ("Discontinued Product") at any time during
the term of this Agreement, Supplier shall use reasonable commercial
efforts to give Philips and all Participants which have ordered such
Products during the preceding one year at least six (6) months prior
written notice of such discontinuance for multisourced Products and
twelve (12) months notice for sole sourced Products. Supplier will also
give Participants notice of Discontinued Products that are deemed to be
technically non-manufacturable, or otherwise limited in availability,
when a standard notice as outlined above is commercially impracticable.
If Philips discontinues supplying certain components to Supplier or
shorter notice, Participants acknowledge that such action could cause a
limited Product availability.
11.3 Supplier's written Discontinued Product notice to Participant will
contain the specific last time ordering conditions for the Discontinued
Products.
11.4 During the period after notice, Supplier shall accept Purchase Orders
from Participant for the unordered quantities of the Discontinued
Products as priced in this Agreement, to the extent such Purchase
Orders can be supplied within Supplier's manufacturing capabilities.
11.5 Discontinued Product Purchase Orders will be considered Participant's
firm, final Purchase Orders for the Discontinued Products and will not
be subject to Participant's termination or cancellation without
Supplier's express prior written approval. Supplier's Scheduled
Shipment Dates for Discontinued Product(s) are approximate and will be
based upon the aggregate of all final order quantities received for the
affected Products which Supplier must support. Supplier's shipment of
Discontinued Products ordered by Participant is
conditioned upon Supplier's final availability and manufacturing yields
of the affected Products.
ARTICLE 12
INTELLECTUAL PROPERTY RIGHTS
12.1 Supplier, at its own expense, shall defend any suit brought by any
third party against Participant or its agents, stockholders, directors,
employees, officers, resellers, distributors, or assigns insofar as it
is based upon a claim that any Product alone, and not in combination
with any other products not supplied by Supplier, as directly supplied
by Supplier hereunder and not modified in any way by Participant
infringes any patent(s), trade xxxx(s), copyright(s) or design(s) or
other intellectual property right(s) of any third party, provided that
Supplier is notified promptly by Participant in writing of any claim of
or suit for infringement and is given full authority at Supplier's
option to settle or conduct the defense thereof with Participant's full
assistance and co-operation in said defense at Supplier's expense.
Supplier shall not reimburse costs or expenses incurred by Participant
without prior written notice of the expenditure. In the event that
Products supplied hereunder by Supplier in the form as specified above
are in such suit held to constitute infringement and their use is
prohibited, with Participant's consent (which consent shall be not
unreasonably withheld) Supplier shall replace the infringing Products
with non- infringing Products or shall modify the Products so that they
become non-infringing, or authorize the return of such Products and
grant Participant a credit for the Price paid therefor.
12.2 It is expressly understood that Supplier shall not be liable for
infringement of any intellectual property rights covering any product
other than Products as such hereunder, in the form as supplied and not
modified in any way, nor for infringement of intellectual property
rights covering any assembly, circuit, combination, method or process
in which, or in the manufacture, testing or application of which such
Products may have been used. Furthermore, Supplier shall not be liable
for any infringement necessarily arising from compliance with
Participant's design, specifications or instructions. Participant shall
indemnify Supplier against any final award of damages or costs for such
infringement and shall reimburse all costs incurred by Supplier in
defending any suit or proceeding for such infringement, provided
Supplier gives Participant prompt notice in writing of any such suit or
proceeding for infringement and, if so requested, full authority to
conduct the defense thereof and full assistance and co-operation in
said defense, at Supplier's expense.
12.3 The sale of any Product hereunder does not convey any license, by
implication, estoppel or otherwise, under any intellectual property
rights of Supplier covering any Product supplied hereunder or any
combination in which any Product supplied by Supplier hereunder is
combined with any other product, whether or not supplied by Supplier,
or any method or
process in which any such Product of Supplier may be used, except the
implied license to use and resell the Products under any of Supplier's
IPR.
12.4 THE FOREGOING STATES THE ENTIRE LIABILITY OF SELLER IN CONNECTION WITH
THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES BY
PRODUCTS SUPPLIED BY SELLER HEREUNDER AND EXCEPT AS STATED HEREABOVE,
SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND
WHATSOEVER, INCLUDING ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, SUFFERED OR INCURRED BY BUYER OR ITS IMMEDIATE
CUSTOMERS IN RESPECT OF OR IN CONNECTION WITH THE INFRINGEMENT OF ANY
THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
ARTICLE 13
TRADEMARKS AND MARKINGS
13.1 Except where intended to serve as instructions for use or advertising
matter, all technical information in relation to Supplier's Products
and their maintenance remains Supplier's property and may without its
consent not be utilized or copied, reproduced, transmitted or
communicated to third parties. Illustrations, catalogues, colors,
drawings, dimensions, statements of weight and measurements etc. made
available by Supplier are only meant to present a general idea of the
products to which they refer; they are approximately only and therefore
not binding upon Supplier.
13.2 Neither Party shall, without the other Party's prior written consent,
use the other party's name or trademark as such and/or use same in
connection with any advertisement or sales literature.
13.3 The Parties understand that the consent necessary in article 13.2
above, may require separate authorization agreements for such use
consistent with then current policy of the authorizing Party.
ARTICLE 14
COMPLIANCE WITH LAWS
14.1 Supplier warrants that it is legally authorized to enter into this
Agreement. Supplier further warrants that it shall comply with all
applicable rules, regulations and laws in the manufacture and sale of
the Products, including but not limited to such matters as
environmental, export control and safety laws. If requested, Supplier
will assist Participant
or Participant's customer(s), if applicable, by providing evidence of
its compliance or such information necessary to assist Participant or
Participant's customer(s) to comply with same.
ARTICLE 15
SEVERABILITY/WAIVER
15.1 In the event that any provision(s) of this Agreement shall be held
invalid or unenforceable by a court of competent jurisdiction or by any
future legislative or administrative action, such holding or such
action shall not negate the validity or enforceability of any other
provisions hereof.
15.2 The failure on the part of either party to exercise, or any delay in
exercising, any right or remedy hereunder shall not operate as a waiver
thereof nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or future exercise thereof or the exercise
of any other right or remedy granted hereby or by any related document
or by law.
ARTICLE 16
SUCCESSOR
16.1 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns and legal
representatives. Neither party shall, during the term of this
Agreement, have the right to assign or otherwise transfer its rights or
obligations under this Agreement except with the prior written consent
of the other party. However, nothing herein shall be construed to
prevent Supplier from assisting its rights to receive payments due
under the terms of this Agreement. Notwithstanding the foregoing, a
party shall not unreasonably withhold consent in the case of an
assignment in connection with a merger, consolidation or assignment of
the entire business of the other party.
ARTICLE 17
TERMINATION
17.1 This Agreement enters into force on the Effective Date and shall remain
in force until September 30, 2001. This Agreement shall be
automatically renewed annually for successive periods of one (1) year,
unless terminated by mutual agreement; provided that
Supplier may terminate this Agreement upon 12 months notice to Philips
in the event the Supply Agreement between Supplier and Philips is
terminated.
ARTICLE 18
APPLICABLE LAW AND JURISDICTION
18.1 This Agreement and Purchase Orders and Order Confirmations made
hereunder shall be construed in accordance with and governed by the
laws of the State of California. The United Nations Convention on
Contracts for the International Sale of Goods shall not apply. Neither
Buyer's general conditions of purchase nor Seller's general conditions
of sale are applicable to this Agreement or to any Purchase Order or
Order Confirmation.
18.2 All disputes arising in connection with this Agreement, which cannot be
resolved amicably, shall be determined exclusively by the state or
federal courts located in the State of California.
ARTICLE 19
NOTICES
19.1 All notices, requests and demands given to or made upon the parties
hereto shall, except as otherwise specified herein, be in writing and
be delivered or mailed, or facsimile (fax) copied to the party at the
notice address stated in Annex 4 hereto.
Any notice, if mailed properly addressed, postage prepaid, certified
mail shall be deemed made on the certified date. Any fax or Purchase
Order or confirmation thereof sent electronically shall be deemed
delivered on the first working day immediately following the
transmission date.
ARTICLE 20
CONFIDENTIAL INFORMATION
20.1 The partners shall be bound by the non-use and nondisclosure
provisions of Article 8 of the Technology Transfer Agreement by
Supplier and Philips and such provisions are incorporated herein by
reference.
20.2 Each receiving party shall return aforesaid data and information on the
disclosing party's request. The disclosed information shall remain the
property of the disclosing party and nothing contained in this Article
20 shall be construed as a grant of license to the receiving party to
make, use, or sell any products or services using confidential
information of or as a license under any patents or other intellectual
property rights covering same.
20.3 The commitment defined herein above shall continue during the period of
this Agreement and five (5) years thereafter, it being understood that
these commitments shall cease if but to the extent only, that
confidential information:
- is or becomes generally known or available to be public at
large through no act or omission of the receiving party; or
- can be demonstrated to have been available to the receiving
party prior to disclosure or has thereafter been furnished to
the receiving party always without restriction as to the
disclosure or use; or
- can be demonstrated to have been independently developed by
the receiving party subsequent to disclosure without use of
any confidential information received from the other party; or
- is furnished to others by the disclosing party without similar
restrictions to those herein contained as to the use or
disclosure thereof; or
- is ascertained from a commercially available product; or
- is disclosed pursuant to administrative or judicial action,
provided that the receiving party shall use its best effort to
maintain the confidentiality of the confidential information
by asserting in such action any applicable privileges and
shall, immediately after receiving notice of such action,
notify the disclosing party thereof and give the disclosing
party the opportunity to seek any other legal remedies so as
to maintain such confidential information in confidence
If only a portion of the confidential information falls under any of
the subsections, then only that portion of the confidential information
shall be excluded from the use and disclosure restrictions of this
Agreement.
ARTICLE 21
EXPORT CONTROL
21.1 Participant and Supplier agree to inform the other Party of any export
control regulations which may regulate the export/import of the Product
to or from any countries of Participant's delivery addresses (Annex 2),
if so requested. Each party shall cooperate to promptly secure any
required export licenses for the Products.
ARTICLE 22
MISCELLANEOUS
22.1 Supplier shall provide adequate documentation with regard to the
Products to be supplied, such as CE Certification, storage
instructions, forwarding documents, and, at request, Certificate of
Origin, and furthermore all data relating to relevant governmental
regulations such as regarding import, export, safe handling, storage,
use, and disposal of Products.
22.2 In case Supplier will introduce new Products, Supplier will consult
Philips if the new Products could be interesting for Philips or
Participants in order to determine whether this Agreement could be
extended to said new Products as well, and if so, what prices and
discounts will apply to such new Products.
22.3 Supplier shall not in any way use or apply the Philips Shield emblem or
Philips name, trademark, or any xxxx resembling them in advertisements,
sales promotion, publicity or publications, nor in any other way, nor
advertise or publish that Supplier does do business with Philips or
Participants, unless with Philips' prior written consent.
22.4 This Agreement including the Annexes [1, 2, 4, 5] constitute the entire
Agreement between the Parties and the Parties agree that there are no
other representations, warranties or oral agreements relating to the
subject matter of this Agreement. Amendments and additions to this
Agreement shall be valid only by exchange of documents signed by both
Parties. For the sake of clarity such amendments shall be expressly
marked "Amendment (nbr ) to the Agreement." This Agreement between
Buyer and Seller shall supersede the provisions of any general
conditions of purchase which may be written behind the Purchase Order
used by Buyer.
22.5 Any disputes arising with respect to this Agreement shall be resolved
in the manner provided the Technology Transfer Agreement.
PHILIPS ELECTRONICS NA CORP WHO?VISION SYSTEMS, INC.
Signature: /s/ Xxxxxxx X. Xxxxxxxx Signature: /s/ Xxxx Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx Xxxxxxxxx
Title: Chairman & CEO Flat Display Title: CEO
Date: 9/30/98 Date: 9/30/98
ANNEX 1
Products
[to be determined on or before January 31, 1999]
Delivery Terms
Shipments to be made on an Ex Works basis, with freight and other costs billed
to Participants.
Lead Times
[to be determined on or before January 31, 1999]
Prices
[to be determined on or before January 31, 1999]
Discounts
[to be determined on or before January 31, 1999]
Payment Terms
Net 30
other Agreed Terms
Availability Period
[to be determined on or before January 31, 1999]
Validity Period
[to be determined on or before January 31, 1999]
Rolling Forecast Format
[to be determined on or before November 31, 1998]
ANNEX 2
AGREED SPECIFICATIONS
[to be determined on or before January 31, 1999]
ANNEX 3
A. Quality Procedures
[to be determined on or before January 31, 1999]
B. Inspection Procedures
[to be determined on or before January 31, 1999]
ANNEX 4
Contract Addresses
A. Supplier's Contract Addresses for Purchase Orders
[to be determined on or before January 31, 1999]
B. Participant's Invoice Addresses
[to be determined on or before January 1, 1999]
C. Supplier's Bank Accounts for Payment of Invoices
[to be determined on or before January 31, 1999]
D. Notice Addresses
[to be determined on or before January 31, 1999]
