OEM BASIC TRANSACTION AGREEMENT
BETWEEN
TEXAS INSTRUMENTS INCORPORATED
AND
PROJECTAVISION, INC.
This Agreement dated 9 September 1996 (the "Agreement") is entered into
between Texas Instruments Incorporated, (hereafter referred to as "TI"), a
Delaware Corporation doing business at 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx,
Xxxxx 00000, XXX, acting through its Corporate Venture Projects, and
Projectavision, Inc., (hereafter referred to as "Projectavision"), a Delaware
Corporation doing business at 0 Xxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, (each
individually referred to as a "Party" and collectively referred to as the
"Parties").
Whereas, Projectavision is engaged in the sale of projection systems and TI
is engaged in the business of manufacturing and selling Digital Light
Processing(TM) (DLP(TM)) projection subsystems, based on the Digital Micromirror
Device(TM) (DMD(TM)) which have applications in commercial and consumer markets;
Whereas, the parties desire to put into place this Agreement which
establishes the terms and conditions under which Projectavision may issue
purchase orders for the purchase of goods offered for sale by TI.
The parties hereby agree as follows:
1. DEFINITIONS
For purposes of this Agreement:
a. The term "TI" includes Texas Instruments Incorporated and, unless the
context otherwise requires, all of its Subsidiaries.
b. "Subsidiary" means any corporation, company or other entity of which
more than 50% of the outstanding shares of stock entitled to vote for
the election of directors (other than shares of stock whose voting
rights are subject to restriction) are owned or controlled by either
Party, directly or indirectly, now or hereafter during the term of
this Agreement. Any corporation, company or other entity that would at
any time be a Subsidiary of Projectavision or TI, as the case may be,
by reason of the foregoing shall be considered a Subsidiary for the
purposes of this Agreement only so long as the ownership or control,
directly or indirectly, by Projectavision or TI, as the case may be,
meets the conditions hereinabove set forth.
2. INTENTIONALLY LEFT BLANK
3. SPECIFIC PRODUCT ENGAGEMENTS
Exhibit A to this Agreement will outline the product prices, quantity,
description, part number (if available), and any other supplemental terms
and conditions which the parties have agreed to. Future exhibits to this
Agreement will be issued to reflect additional products and changes made to
prior exhibits.
4. CONFIDENTIAL INFORMATION
All information exchanges, developments, and other intellectual property
considerations which are deemed proprietary or confidential by either
party, unless otherwise agreed to herein, shall be made pursuant to the
Non-Disclosure Agreement (NDA) between TI and Projectavision effective 10
August 1994, herein incorporated by reference. Such NDA shall be in effect
for, and automatically extended in all time periods through, the term of
this OEM Basic Transaction Agreement.
Any information provided to TI by Projectavision that pertains to interface
and performance requirements of the TI subsystem and that is necessary for
TI to effectively design and build DLP-based subsystems may be freely used
by TI in formulating its product requirements and specifications
irrespective of whether TI and Projectavision enter into or engage in any
production agreement to sell/buy the DLP-based subsystems or any other
projection display product and Projectavision shall not represent this
information as proprietary or confidential and this information shall not
be subjected to the NDA.
This provision shall survive the expiration, termination or cancellation of
this Agreement or any supplemental agreement issued hereunder.
5. INTENTIONALLY LEFT BLANK
6. TERM OF AGREEMENT
This Agreement is effective as of the date indicated above. This Agreement
shall expire five (5) years after the effective date of the Agreement and
may be extended for additional period(s) of tune by mutual written consent
of both parties. Immediately upon the expiration, termination, or
cancellation of this Agreement, each Party will return to the other Party
Confidential Information that was provided under this Agreement, unless
otherwise mutually agreed to by both Parties.
7. LANGUAGE
This Agreement and all purchase orders shall be in the English language.
The English language shall be controlling in all respects, and all versions
of this Agreement and purchase orders in any other language shall in no way
be binding upon the parties or affect the interpretation of this Agreement
or purchase orders. All communications to be made under this Agreement or
under any purchase order shall be in English.
8. NOTICES
Any notices required or permitted to be given under this Agreement or under
any purchase order shall be in writing and shall be deemed valid and
sufficient if delivered in person, or delivered by fax (provided the
original is thereafter promptly dispatched by regular mail) to the
following:
To Projectavision: Projectavision, Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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To TI:
Texas Instruments Incorporated
00000 Xxxxx Xxxxxxx Xxxxxxxxxx, X/X 0
Xxxxxx, Xxxxx 00000
XXX
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
9. ORDERING PROCEDURES
a. Purchase orders shall be released with a header note stating that the
order is released pursuant to the terms and conditions of this
Agreement and any other terms and conditions as mutually agreed by the
parties. Such orders shall reflect at a minimum, i) quantity, ii)
product description, iii) unit price, iv) extended price, v) requested
delivery date(s), vi) carrier, vii) ship to address, viii) xxxx to
address, ix) specification/model number, x) quotation number.
b. Orders may be fax'd to: (000) 000-0000
or e-mailed to: xxxx@xx.xxx
Followed by hardcopy purchase order to:
Texas Instruments Incorporated
P0 Box 655012, Mail Station 6
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
c. TI reserves the right to set a minimum order size if addressed in
quotation.
d. Terms or conditions reflected on the purchase order shall not apply.
The purchase order shall only be used as a tool to place orders with
TI and for TI to acknowledge the order.
e. At the time TI delivers the ordered goods to the carrier,
Projectavision authorizes TI to submit its invoice for the goods and
Projectavision shall reimburse TI for the amounts specified on the
invoice pursuant to the terms and method of payments provision of this
Agreement.
f. Unless otherwise notified in writing by Projectavision, Projectavision
authorizes TI to make partial shipments of the goods. Projectavision
agrees to reimburse TI for such partial shipments pursuant to the
terms and method of payment provision of this Agreement.
10. APPROVAL OF ORDERS
Projectavision will place its purchase order(s) for the goods with TI's
Digital Imaging organization, Dallas, Texas by releasing its order to the
address, fax or e-mail identified within the "Ordering Procedures"
paragraph of this Agreement. Orders not rejected in writing within ten (10)
days after the date of receipt of Projectavision's purchase order(s) shall
be deemed accepted.
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11. TERMS AND METHOD OF PAYMENTS
Unless otherwise specified within this Agreement or any of its Exhibits,
the terms of payment for goods shipped under this Agreement and accepted
pursuant to Paragraph 15, Inspection of Goods, shall be net thirty (30)
days from date of invoice and shall be subject to continuing credit
approval. In the event Projectavision returns any goods to TI pursuant to
Paragraph 15, Inspection of Goods, Projectavision agrees to remit payment
for those goods not affected by Projectavision claim. If the goods are
delivered in installments, Projectavision agrees to pay for each
installment in accordance with the terms of payment hereof. If
Projectavision fails to make each payment when it is due, in addition to
any other remedies TI may have, TI reserves the right to withdraw credit
and suspend or cancel performance under any open purchase order, refuse to
accept any further supplemental agreements or orders, withhold shipment; or
allow Projectavision to make other arrangements satisfactory to TI, which
arrangements must be made prior to the shipment under any purchase order.
Payment shall be made for the goods without regard to whether
Projectavision has made or may make any inspection of the goods.
Projectavision may remit payment to TI via electronic funds transfer (EFT)
to:
NationsBank of Texas N.A.
Via Fedwire
000 Xxxx Xx.
Xxxxxx, Xxxxx
ABA 000000000
For Texas Instruments
Account 1252104040
M/F Digital Imaging, Div. 4
If payments are not made via EFT, payments shall be sent so as to arrive
within 30 days of invoice date to:
Texas Instruments Digital Imaging
X0 Xxx 000000
Xxxxxx, Xxxxx 00000-0000
All payments made to TI shall be in US dollars and shall reflect the TI
invoice number(s). Each party agrees to pay for their own bank charges
associated with electronic funds transfers.
Projectavision may not take any deductions or offsets of any kind from
payments due TI as the result of other business relationships between
Projectavision and TI.
12. TAXES AND FEES
The prices for the goods delivered under this Agreement do not include any
taxes, levies, import duties, and fees of any kind, now or hereafter
enacted, applicable to the goods sold pursuant to this Agreement. If any of
the above described taxes or charges are charged or can be charged to TI,
TI will invoice all such taxes or charges to Projectavision (exclusive of
taxes based on TI's net income) and Projectavision agrees to immediately
remit payment to TI in accordance to the payment terms of this Agreement,
unless Projectavision provides TI for this Agreement or any subsequent
purchase order, a tax exemption certificate(s) or licenses acceptable to
the appropriate taxing authorities.
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13. TRANSPORTATION COSTS
The prices for the goods delivered under this Agreement exclude all
transportation costs, including but not limited to, freight, insurance and
special handling and packaging. These costs will be the responsibility of
Projectavision. TI plans to make all shipments EXW TI's point of shipment,
freight collect. Projectavision shall specify a common carrier of their
choosing for the shipment of goods. TI will contact the chosen carrier to
arrange for receipt of goods at TI. If a carrier is not chosen by
Projectavision, Projectavision authorizes TI to choose a carrier.
Projectavision agrees to provide TI the carrier(s) account number to allow
TI to ship freight collect. TI reserves the right to ship prepaid and
invoice shipping charges.
14. TITLE AND DELIVERY
Title and risk of loss or damages to goods shipped will pass to
Projectavision upon TI's tender of delivery of the goods to the
Projectavision designated carrier or the TI chosen carrier and any loss or
damage thereafter shall be Projectavision responsibility and shall not
relieve Projectavision from any of its obligations hereunder. TX will pack
the goods for shipment to Projectavision using commercial practices for the
type of goods being sold pursuant to this Agreement.
15. INSPECTION OF GOODS
Projectavision shall use best efforts to inspect all incoming shipments
within ten (10) days of receipt and agrees to furnish to TI in writing with
any claim it may have for product deficiencies, shortages or specification
noncompliance. Projectavision failure to make such a claim within the above
specified period of time will be deemed by TI to constitute Projectavision
acceptance of the goods and will not waive Projectavision warranty rights
as covered within this Agreement.
In the event that Projectavision submits a claim during the above
Inspection Period to TI involving incorrect materials, defects in material,
workmanship or specification noncompliance, Projectavision shall promptly
notify TI and request instructions from TI to, at TI's option, either i)
return the affected goods to TI's point of shipment, and TI will, upon
confirmation of the claim, ship to Projectavision replacement goods via the
same transportation method the original goods were shipped to
Projectavision within a reasonable time, or ii) have TI make corrections at
Projectavision's site. Any materials being returned to TI must be
accompanied by a Return Material Authorization (RMA) number assigned by TI.
TI shall use reasonable efforts to assign RMA number(s) within 24 hours of
a request by Projectavision.
16. DELIVERY SCHEDULE
All delivery dates for goods which are set forth in the purchase order
issued pursuant to this Agreement are estimated shipment dates from TI's
point of shipment and TI will use reasonable efforts to meet these delivery
dates. TI shall not be liable for any loss or expense (consequential or
otherwise) incurred by Projectavision or Projectavision's customers if TI
fails to meet the specified delivery schedule. In the event that there is a
possibility of a considerable delay in the delivery of the goods, TI will
notify Projectavision and TI will notify Projectavision and Projectavision
will be afforded the following alternatives:
o Delivery is or will be delayed 1 to 30 days late:
No Cancellation or Reschedule
o Delivery is or will be delayed 31 to 60 days late:
Reschedule Delivery up to 60 days
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o Delivery is or will be delayed 31 or more days late:
Reschedule Delivery up to 60 days or
Cancel Affected Shipment, at
Projectavision option
TI will use its reasonable efforts to bring the delivery schedule to a
current status.
17. SPECIFICATION OF GOODS
TI and Projectavision will mutually agree as to the specification of the
goods which will be delivered under any order pursuant to the terms of this
Agreement. The specification may be identified in the purchase order and
the goods delivered will comply to the specification. TI may, at its sole
discretion and without notice to Projectavision, make any change to the
goods sold under a resulting purchase order issued pursuant to this
Agreement which do not affect the good's form, fit or function. If any
changes do affect form, fit, or function, TI agrees to notify
Projectavision and TI agrees not to ship any goods which have been affected
without Projectavision approval. TI agrees to use reasonable efforts to
notify Projectavision prior to TI implementing any changes which do not
affect the good's form, fit, or function.
18. LICENSING IN SPECIFIC FIELD OF USE
In consideration of Projectavision placement of order(s) for the DLP
projection subsystem sold under this Agreement, and for so long as
Projectavision does not modify or allow modification of the DLP projection
subsystem so as to changes its as delivered performance envelope, TI grants
a worldwide, nonexclusive, royalty-free, patent license to Projectavision
for the use of the purchased DLP projection subsystem in Projectavision
products which i) are sold in the commercial marketplace, and ii) are used
in products sold by Projectavision and incorporated into third party
products which are then sold in the commercial or consumer marketplace.
Projectavision agrees to indemnify TI from any claim or action brought
against TI resulting from any Projectavision application or incorporation
of DLP projection subsystems in products or goods other than as authorized
in the preceding sentence, and Projectavision shall pay all damages and
costs awarded against TI in any such claim or action.
19. FORCE MAJEURE
Neither party shall be liable for any failure to perform, in whole or in
part, any term of this Agreement, any supplemental agreement or any order
that is caused by the occurrence of any contingency beyond its control,
including, but not limited to, any labor dispute, strike, war, act of war,
insurrection, sabotage, riot, civil commotion, act of a public enemy,
epidemic, accident, fire, storm, earthquake, explosion, flood, drought or
other natural disaster, act of any governmental authority, judicial action
or transportation embargo, provided such Party has exercised ordinary care
in the prevention thereof, any such failure shall not be considered a
breach of this Agreement, any supplemental agreement or any order.
Production and deliveries may be allocated by TI in a reasonable manner in
the event of shortage of goods.
20. PERSONAL INJURY INDEMNIFICATION
Neither Party shall be responsible for any death, damage, injury or loss
suffered or incurred during visits to its facilities by any employee or
Consultant of the other Party dispatched pursuant to this Agreement or any
supplemental agreement, except for any death, damage, injury or loss
resulting from the willful or grossly negligent act or omission of such
party, its agent, employee or
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Consultant. Further, neither Party shall be responsible for any costs,
expenses or damages suffered or incurred by the other Party, or for any
claim, judgment or award against such other Party, or the defense thereof,
arising out of any actions, assistance or services of its employees or
Consultants hereunder, unless resulting from its own willful or grossly
negligent act. Both parties agree to maintain general comprehensive
liability, property damage and automobile liability insurance, including
contractual endorsement and products hazards coverage, in reasonable
amounts covering the obligations set forth in this Agreement and, upon
request of the other party, the one party will provide the other party with
a Certificate of Insurance indicating the amount of such insurance.
21. WAIVER OF TERMS
Failure of either party to enforce any term or condition of this Agreement
or supplemental agreement will not be deemed to be a waiver of such term or
condition.
22. NON-ENFORCEMENT OF TERMS
Should any clause, sentence, or paragraph of this Agreement judicially be
declared invalid, unenforceable, or void, such declaration shall not have
the effect of invalidating or voiding the remainder of this Agreement, and
the parties hereto hereby agree to undertake to replace that part or parts
of this Agreement so held to be invalid, unenforceable, or void with a
valid provision which shall be as close as possible to the intent of such
part or parts.
23. ASSIGNMENTS
Neither party may assign this Agreement or any supplemental agreement in
whole or in part without the prior written consent of the other party. Any
purported assignment in violation of this provision shall be void.
24. PUBLICITY
Neither party shall publicly announce or otherwise disclose the terms of
this Agreement or any supplemental agreement, advertise or release any
publicity in regards to this Agreement or any supplemental agreement
without securing the written consent of the other party. This provision
shall survive the expiration, termination or cancellation of this Agreement
or any supplemental agreement issued hereunder.
25. CANCELLATION OF ORDERS
Projectavision may cancel without cause all or any part of the undelivered
portion of its purchase order(s) issued pursuant to this Agreement by
providing 60 days advance written notice to TI if the units being canceled
are standard assemblies, as denoted in Exhibit A and TI is capable of using
the canceled product for other TI customers. In the event that the units
being canceled are units which have been special ordered specifically for
Projectavision and can not reasonably be used by other TI customers, then
cancellation charges shall be negotiated between the parties which are
based on costs incurred by TI.
26. TERMINATION
In the event of any material breach, including, but not limited to,
non-payment, breach of the NDA, breach of Paragraph 34, of this Agreement
by either Party, if such breach is not corrected
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within thirty (30) days after written notice is given to the Party in
breach by the Party not in breach, then this Agreement may be terminated
immediately by written notice to the Party in breach by the Party not in
breach. Unless otherwise indicated in writing by the Party not in breach,
upon termination of this Agreement, all activities under this Agreement
shall terminate.
27. DISPUTE RESOLUTION
In the event of any dispute relating to this Agreement, any supplemental
agreement, or any order and if the individuals designated by the Parties
are unable to resolve such dispute through mutual agreement, the Parties
agree that the dispute shall be addressed in the following manner before
either Party proceeds with formal legal proceedings.
Either Party may initiate the disputes process by sending formal notice of
the dispute to the other party. Within ten (10) days of the receipt of such
notice, the Parties agree that each of them shall designate a senior
executive to address the dispute. These two senior executives shall
endeavor to resolve the dispute through good faith negotiation. In the
event that the senior executives are unable to agree to a resolution of the
dispute within thirty (30) days of the receipt of notice of the dispute or
any additional extension of time which is mutually agreed to by the
parties, either Party may elect to proceed with appropriate legal
proceedings. Notwithstanding the foregoing, neither Party shall be bound to
follow the above procedures with respect to disputes relating to
Confidential Information, Inventions or Intellectual Property Rights.
28. PATENT INDEMNITY
TI will defend any suit or proceeding brought against Projectavision
insofar as such suit or proceeding is based on a claim that any goods
manufactured and supplied by TI to Projectavision constitute direct
infringement of any duly issued United States patent and TI shall pay all
damages and costs finally awarded therein against Projectavision, provided
that TI is promptly informed and furnished a copy of each communication,
notice or other action relating to the alleged infringement and is given
authority, information and assistance (at TI's expense) necessary to defend
or settle said suit or proceeding. TI shall not be obligated to defend or
be liable for costs and damages if the infringement arises out of
compliance with Projectavision specifications for incorporation of
Projectavision technology, designs, hardware and/or software in the goods,
or from a combination with, an addition to, or a modification of the goods
after delivery by TI, or from use of the goods, or any part thereof, in the
practice of a process. TI's obligations hereunder shall not apply to any
infringement occurring after Projectavision has received notice alleging
the infringement unless TI has given written permission for such continuing
infringement.
If any goods manufactured and supplied by TI to Projectavision shall be
held to infringe any United States patent and Projectavision shall be
enjoined from using the same, TI will exert all reasonable efforts, at its
option and at its expense, i) to procure for Projectavision the right to
use such goods free of any liability for patent infringement or ii) to
replace such goods with a non-infringing substitute otherwise complying
substantially with all the requirements of this Agreement or iii) refund
the purchase price and the transportation costs of such goods and terminate
this Agreement.
If the infringement by Projectavision is alleged prior to completion of
delivery of the goods under this Agreement, TI may decline to make further
shipments without being in breach of this Agreement, and provided TI has
not been enjoined from selling said goods to Projectavision, TI agrees to
supply said goods to Projectavision at Projectavision option, whereupon the
patent
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indemnity obligations herein stated with respect to TI shall reciprocally
apply with respect to Projectavision, this indemnity by Projectavision
applying to, but not limited to, all damages awarded under 35 U.S.C.
Sections 284 and 285.
If any suit or proceeding is brought against TI based on a claim that the
goods manufactured by TI and supplied to Projectavision in compliance with
Projectavision specifications or by reason of the incorporation of
Projectavision technology, designs, hardware, and/or software in the goods
infringe any duly issued United States patent, then the patent indemnity
obligations herein stated with respect to TI shall reciprocally apply with
respect to Projectavision.
THE SALE BY TI OF THE ITEMS ORDERED HEREUNDER DOES NOT GRANT TO, CONVEY OR
CONFER UPON PROJECTAVISION OR PROJECTAVISION'S CUSTOMERS, OR UPON ANYONE
CLAIMING UNDER PROJECTAVISION, A LICENSE, EXPRESSED OR IMPLIED UNDER ANY
PATENT RIGHTS OF TI COVERING OR RELATING TO ANY COMBINATION, MACHINE OR
PROCESS, WITH THE EXCEPTION AS PROVIDED IN THE "LICENSING IN SPECIFIC FIELD
OF USE" PARAGRAPH, IN WHICH SAID ITEMS MIGHT BE OR ARE USED.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO
FOR PATENT INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, IN REGARD THERETO.
29. WARRANTIES BY TI
THE FOLLOWING ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED CONDITION OR
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND OF ANY
OTHER WARRANTY OBLIGATION ON THE PART OF TI.
TI shall extend the following warranty for the goods delivered to
Projectavision:
For the period stated within Exhibit A after TI delivers the DLP subsystem
to Projectavision, TI shall warrant the goods (subject to any exclusions or
limitations provided in Exhibit A) against faulty workmanship or the use of
defective materials. TI warrants that at the tune of delivery, TI has title
to the goods free and clear of any and all liens and encumbrances. If such
goods fail to conform to the warranty, TI's sole and exclusive maximum
liability shall be (at TI's option) to either repair with new or like new
parts, replace the goods, or credit Projectavision account, for faulty
goods returned by Projectavision to TI during the applicable warranty
period, provided that:
i) TI is promptly notified in writing upon discovery by Projectavision
that such goods failed to conform to the terms of the written
specification with a detailed explanation of any alleged deficiencies,
and
ii) Projectavision receives a Return Material Authorization Number from
TI, and
iii) such goods being returned within the inspection period are returned at
TI's expense to the address specified by TI, or
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iv) such goods being returned beyond the inspection period but still under
warranty, shall be returned prepaid to the address specified by TI,
and
v) TI's examination of the goods confirms that the alleged deficiencies
actually exist and were not caused by accident, misuse, neglect,
alteration, improper installation, unauthorized repair or improper
testing.
TI shall have a reasonable period of time to make such repairs or replace
such goods. Goods repaired or replaced under warranty shall be returned to
Projectavision at TI's expense. Continued use or possession of the goods
after expiration of the applicable warranty period stated above shall be
conclusive evidence that the warranty is fulfilled to the full satisfaction
of Projectavision.
TI'S WARRANTIES AS HEREINABOVE SET FORTH SHALL NOT BE ENLARGED, DIMINISHED
OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OR GROW OUT OF,
TI'S RENDERING OF TECHNICAL ADVICE AND/OR SERVICE IN CONNECTION WITH
PROJECTAVISION'S ORDER OF THE GOODS FURNISHED HEREUNDER.
30. RETURNS
For goods being returned to TI which TI can not find fault with the unit or
TI "Can Not Duplicate" (CND) the symptom(s) described by Projectavision, TI
and Projectavision agree to work together to determine the root cause of
the fault so that corrective action may be taken.
All returned goods must have the bar code label affixed to the goods. If TI
determined that the bar code is missing or has been tampered with, warranty
will not be applicable to the goods and the goods will be immediately
returned to Projectavision without further action.
All goods required to be returned to TI for either repair and/or warranty
action shall be consolidated at Projectavision for return to TI at a
frequency no greater than once per week, unless otherwise agreed to by the
parties. Goods will be consolidated and returned to Projectavision, or its
alternate destinations, once a week to a single point of receipt via ground
transportation. All out-of-warranty goods being returned to Projectavision
shall be shipped EXW TI's point of shipment, Freight Collect. Any repair
costs associated with out-of-warrant returned goods shall be addressed
under a quotation from TI.
Goods being returned for warranty action shall receive a sixty (60) day
warranty from the date of shipment from TI or the balance of the remaining
original warranty period associated with the goods, whichever is greater.
31. LIMITATION OF LIABILITY
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR ANY SUBSEQUENT
MODIFICATION TO THIS AGREEMENT, THE LIABILITY OF TI, IF ANY, AND
PROJECTAVISION's SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY
KIND WHATSOEVER WITH RESPECT TO THIS AGREEMENT, ANY SUPPLEMENTAL AGREEMENT
FOR PRODUCTS OR WITH RESPECT TO ANY OF THE GOODS COVERED THEREBY, AND
REGARDLESS OF THE LEGAL THEORY OR THE DELIVERY OR NON-DELIVERY OF PRODUCTS,
WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE GOODS WITH
RESPECT TO WHICH SUCH CLAIM
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IS MADE. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING,
BUT NOT LIMITED TO, COSTS OF REMOVAL AND REINSTALLATION OF ITEMS, LOSS OF
GOODWILL, LOSS OF REVENUES OR PROFITS, LOSS OF USE, INJURY TO PERSONS OR
PROPERTY) ARISING OUT OF ANY BREACH OF THIS AGREEMENT WHETHER SUCH DAMAGES
ARE LABELED IN TORT, CONTRACT, OR INDEMNITY, EVEN IF TI HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE.
32. INTENTIONALLY LEFT BLANK
33. CHANGES
Once TI acknowledges and accepts a negotiated purchase order for the
specific goods, no changes shall be authorized unless authorized
representatives of both parties mutually agree in writing to all aspects of
the requested change.
34. BRANDING, ADVERTISING, TRADEMARKS AND TRADE NAMES
Both parties acknowledge and agree that company trademarks and trade names
are paramount to the identification of the product or products being sold
in the marketplace. Each party agrees that they will have no right, claim
or interest in any trademark or trade name which is owned by the other
party.
Projectavision will not use TI's Corporate Signature or the TI Corporate
Logo in its advertising and promotion of the products. Projectavision will
use TI's name and will use the Digital Light Processing, DLP, Digital
Micromirror Device, DMD, and "Wafer-D" trademarks and logos (hereinafter
"Trademarks") in its advertising and documentation of the products.
Projectavision will ensure that neither the TI name nor the Trademarks are
displayed in any manner which may imply:
o that Projectavision is owned or controlled by TI, in whole or in
party;
o that TI is not the exclusive owner of TI's name and xxxx;
o that TI and Projectavision are not separate and independent entities
In order to comply with the above, whenever Projectavision's name appears
in Projectavision's documentation or advertising, together with the name
"Texas Instruments" (and/or the Trademarks), Projectavision's name must
appear first and must be more prominent than either the name "Texas
Instruments" or the Trademarks. TI's name must be spaced from
Projectavision's name by a sufficient distance to avoid any suggestion that
the two companies are not separate and independent. Unless otherwise
provided for in "The DLP(TM) System Branding Program", whenever the
Trademarks are incorporated into written documentation, they must be
located near the name "Texas Instruments" in order to preserve a close
association of the TI name with the Trademarks. TI ownership of the
Trademarks must be expressly stated in all advertising and documentation,
for example, in a footnote.
Any product names that includes "TI", the name "Texas Instruments", or the
Trademarks must be submitted to TI for approval in advance of its release
or distribution.
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TI's name and Trademarks are to be associated with TI, and with the TI
products and services only, and are not to be associated with
Projectavision. For example, TI's name, and the Trademarks must not appear
on Projectavision's business cards or letterheads, unless TI ownership and
their association with the products or services also appears on the same
item.
Projectavision shall display the TI DLP logo(s) on systems or higher level
assemblies that contain DMD or DLP brand products as components. The
display of the logo(s) shall be in accordance with the current written
general policy as set forth in Exhibit B. Projectavision shall likewise
require its customers who are value added systems suppliers, or similar
value added resellers to display the TI DLP logo(s), and to do so in
accordance with TI's current written general policy as set forth in Exhibit
B. If TI shall in the future adopt any new or revise such policies,
Projectavision agrees to cooperate in reasonable respects to implement such
revised policies and Projectavision shall require its customers to do
likewise.
Projectavision agrees that it will inform TI of any possible trademark
infringement which comes to its attention. Projectavision will deliver to
TI when requested any papers and assist in conducting any legal proceedings
at TI's expense which TI shall deem necessary, in order to protect its
trademarks and trade names.
Projectavision also agrees that it will not remove or alter any tag, label
or other identifying marks placed by TI on the products.
35. APPLICABLE LAW AND JURISDICTION
This Agreement and matters connected with its performance shall be governed
and construed in accordance with the laws of the State of Texas, USA,
without giving effect to such state's conflict of laws principles. Each
party hereby irrevocably consents to the jurisdiction of the federal and
state courts located in the Northern District of Texas, USA. The parties
agree that the United Nations Convention on Contracts for the International
Sale of Goods is specifically excluded from application to this Agreement.
36. MODIFICATION OF THIS AGREEMENT
This Agreement, including Exhibit A and Exhibit B, together with any
supplemental agreements issued and accepted hereunder, and the NDA,
supersedes the Memorandum of Understanding dated 23 October 1995 and sets
forth the entire understanding and agreement between the Parties as to the
subject matter hereof and supersedes any previous communications,
representations or agreements, either oral or written, with respect to the
subject matter hereof. Neither Party shall be bound by any modification of
this Agreement or supplemental agreement unless such modification is in
writing and signed by an authorized representative of the Party to be bound
thereby. No course of dealing or usage of trade or course of performance
shall be relevant to explain or supplement any term expressed in this
Agreement.
37. SURVIVAL OF CLAUSES
Notwithstanding anything herein to the contrary, the following clauses
shall survive the expiration or termination of this Agreement: 4, 8, 18,
20, 22, 23, 24, 27, 28, 29, 30, 31, 34, 35, and this clause.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives effective as of the latter of the dates
signed below.
TEXAS INSTRUMENTS INCORPORATED PROJECTAVISION, INC.
Corporate Venture Projects
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------ -----------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President Title: President/CEO
Manager, Digital Video Operations
Digital Imaging
Date: 9/18/96 Date: 9/5/96
13
Projectavision
Exhibit A to OEM Agreement
Product Description/Pricing
dated 9 September 1996
Description Part Number Price
----------- ----------- -----
Projectavision
--------------
Digital Projection System (DPS) TBD $2,500.00
Model DPS1A1A2 (Rear Projection Only)
Front Projection Lens TBD $450.00
Note: Unless otherwise annotated within this Agreement or any modifications
thereto, TI and Projectavision agree that the units defined in Exhibit A
are "standard assemblies".
Supplemental Terms and Conditions:
1. Delivery Lead Time
The delivery lead time of Digital Projection System engines (DPS) is 12
weeks from receipt of the purchase order to having the goods on dock at
Projectavision. Shipment is based on ground transportation.
2. Schedule Modification
Purchase order delivery dates may be rescheduled, either pulled up or
pushed out, based on the mutual agreement between Projectavision and TI.
3. Repair Turnaround Time
The repair turnaround time for goods received back from Projectavision
until the goods are shipped back to Projectavision is thirty (30) days
after receipt of the goods back at TI or other TI designated location.
4. 12 Month Rolling Product Forecast
Projectavision agrees to provide TI on a monthly basis a rolling 12 month
forecast for the product. TI understands that the quantities of product
ordered under resulting purchase order(s) for shipment during the delivery
period shall closely represent the good faith forecast quantities provided
to TI by Projectavision for the product ordered.
5. Price Adjustments
Prices for products will be monitored regularly by TI and Projectavision
and TI may adjust prices to compensate for fluctuations in material or
other direct costs, yields, change in quantity requirements, or changes in
market conditions. Any price increase will not affect purchase orders in
TI's then current backlog and scheduled to ship to Projectavision within
the next 90 days. Any
14
price decrease will have an effective date associated with it and the price
of any goods scheduled to ship on or after this effective date will be
adjusted to reflect the new reduced price. TI agrees to provide
Projectavision with a thirty (30) day notification of any price increase.
Price and quantities ordered vs. forecasted will be evaluated by TI and
Projectavision on a quarterly basis.
6. Warranty
The warranty for production DPS goods is fifteen (15) months from date of
shipment from TI. If a warranty claim is made during the first three (3)
months after the initial shipments of DPS, Projectavision agrees to return
the defective DPS for repair or replacement, at TI's option. Thereafter, TI
will repair or replace the defective subassemblies of the DPS returned to
TI. The warranty for new spares, less lamp, is six (6) months from date of
shipment from TI. There is no warranty for the lamp.
7. Initial 12 Month Forecast
Sept. 1996 100
Nov. Through Dec. 1996 500 per month
Jan. 1997 1,500
Feb. 1997 through Aug 1997 2,000 per month
8. Service Program
The service program is based on Projectavision providing service to its
dealers and end users. TI can provide training and engineering
documentation to Projectavision which allows Projectavision to service the
DPS to the repairable subassembly level.
9. Future Product Support
TI will provide spares subassembly parts to Projectavision for three (3)
years following the last shipment of production units to Projectavision.
Projectavision must make a lifetime buy before the end of the three year
period.
10. Payment Terms
For as long as Projectavision is not in breach of this Agreement, TI agrees
to extend to Projectavision payment terms of net 60 days from date of
invoice for all purchase orders received by TI through May 1997 and
scheduled for delivery through August 1997. For purchase orders issued
after May 1997, the payment terms shall be as specified within the
Agreement, Paragraph 11, entitled Terms and Method of Payments.
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Accepted by:
TEXAS INSTRUMENTS INCORPORATED PROJECTAVISION, INC.
Ccvrporate Venture Projects
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------ -----------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President Title: President/CEO
Manager, Digital Video Operations
Digital Imaging
Date: 9/18/96 Date: 9/5/96
16
