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EXHIBIT 10.8
OEM PURCHASE AGREEMENT
This Agreement is entered into as of June _____ 1996 between FARO Technologies,
Inc., a corporation duly organized and existing under the laws of the State of
Florida and having its principal office of business at 000 Xxxxxxxxxx Xxxx, Xxxx
Xxxx, Xxxxxxx 00000, X.X.X. (hereinafter called "Seller") and Mitutoyo
Corporation, a corporation duly organized and existing under the laws of Japan
and having its principal office of business at 00-0, Xxxxxx 0-xxxxx, Xxxxxxx-xx,
Xxxxxxxx, Xxxxxxxx 000, Xxxxx (hereinafter called "Purchaser").
The parties hereto agree as follows:
Article 1. Products
1.1 "Products" shall mean all 3 dimensional measuring machines "FaroArm"
and accessories specified in the Annex 1 (5 pages in total and attached
hereto), manufactured and/or sold by Seller and subject to addition
thereto or deletion therefrom either of which shall be made by
agreement in writing of both parties hereto.
1.2 Model change of Products, release of new models of Products or
discontinued production of Products shall be subject to the prior
approval in writing of Purchaser. In case of intending such model
change, release or discontinuance, Seller shall give Purchaser notices
thereof in writing so as to enable Purchaser to plan and prepare its
marketing properly, which notices are to be given adequate period of
time at the latest six(6) months prior to such model changes, release
or discontinuance.
Article 2. Sales
2.1 Seller shall manufacture and sell Products to Purchaser and Purchaser
may resell Products directly,or, as the case may be, through its
distribution channels including its subsidiaries or affiliates to
end-users
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of Products (hereinafter called End-Users) in the countries and areas
as listed below (hereinafter called "Territory"):
* Japan, Korea, Republic of China, Taiwan, Hong Kong, Phillippines,
Singapore, Thailand, Malaysia, Indonesia, India, Pakistan, Vietnam, the
United Arab Emirates, Saudi Arabia, Israel, Turkey, Australia, New
Zealand.
2.2 Purchaser shall resell Products in Territory as a part of integrated
ystem of Products and Purchaser's softwares. Such softwares shall be
itated in 2.3 below subject to addition thereto or deletion therefrom
either of which shall be made by agreement in writing of both parties
hereto.
2.3 Purchaser's softwares, which are developed, manufactured, sold,
distributed or otherwise handled by Purchaser, shall be inclusive of
the softwares developed or manufactured by Purchaser's subsidiaries and
shall be as follows:
* For the applications of digitizing and precision measurement, TRACEPAK
Series, TRACECUT Series, GEOPAK Series, SCANPAK Series and/or other
Purchaser's softwares similar or relating thereto and any "version-up"
thereof.
2.4 Purchaser may procure the Renishaw Touch Trigger Probes applicable to
Products through its own channels. Purchaser may procure parts and/or
accessories, which are manufactured by manufacturers other than Seller
and applicable to Products, through its own channel with a prior
approval of Seller.
2.5 For the purpose of 2.4 above, Seller shall give Purchaser technical
information useful for the application of such parts and/or accessories
upon request of Seller.
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Article 3. Non-Exclusivity
Seller hereby grants to Purchaser and Purchaser accepts the non-exclusive right
to purchase Products from Seller for the purpose of resale within Territory
during the effective period of and subject to the provisions of this Agreement.
Article 4. Licenses
4.1 Seller hereby grants Purchaser a fion-exclusive license to practice
methods covered by Seller's patent applications/patents described in
the Annex 2 (7 pages in total and attached hereto)(hereinafter called
"Patent Applitations/Patents") which license is limited solely to the
purpose hereof. Purchaser may not alter, reverse engineer, disassemble
or decompile Products.
4.2 Under such license Purchaser shall be entitled to grant sublicenses to
the effect that:
(1) Purchaser, as an authorized reseller of Products, grants its
End- Users non-exclusive and permanent sublicenses to practice
methods covered by any of Patent Applications/Patents.
(2) End-Users may not alter, reverse engineer, disassemble or
decompile Products.
(3) Patent Applications/Patents shall belong to Seller.
4.3 Seller hereby grants Purchaser a non-exclusive license for the
permanent sublicenses to its End-Users, installation and support of
"CALIPER 3D Software" in Territory with regard to the resale of
Products.
4.4 The sublicenses granted to Purchaser's End-User's as referred to in 4.2
and 4.3 above shall not be affected by expiration or termination of
this Agreement.
4.5 Neither expiration nor termination of this Agreement shall affect the
rights of Purchaser as referred to in 4.1 through 4.3 above regarding
the Products or outstanding orders in Article 20 hereof.
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Article 5. Term
Except as otherwise provided in this Agreement, the initial term of this
Agreement shall be three(3) years on and from the date of signatures by the
parties hereto and thereafter this Agreement shall be automatically renewed on a
year to year basis unless terminated at the end of the initial term or renewed
term(s) of this Agreement by either party upon at least six(6) months prior
written notice.
Article 6. Individual Contract
6.1 Each individual contract under this Agreement shall be subject to this
Agreement. If there is any inconsistency between the contents of such
individual contract and those of this Agreement, the latter shall be
finally applied.
6.2 Any individual Contract shall be concluded and carried out by
Purchaser's purchase order or other contract form, which shall set
forth the description, item numbers, specifications, prices, delivery
time, and other necessary terms and conditions for shipment stated on
such purchase order.
6.3 Notwithstanding expiration or termination of this Agreement, any
individual contract concluded prior to the effective date of such
expiration, or termination shall be completely performed by the parties
hereto, unless otherwise agreed upon.
Article 7. Prices
7.1 Seller grants to Purchaser twenty-five(25)% discount from its price
lists issued and valid for its end-users in U.S.A. on all the products
mentioned on the price lists. Prices are to be calculated on FOB U.S.
Orlando Airport basis. Purchaser shall be notified of the change of
prices by Seller in writing
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six(6) months prior to the effective date of such change. Orders placed
with Seller by Purchaser before such notification shall be delivered at
the prices which are more preferable to Purchaser.
7.2 Availability of such twenty-five(25)% discount as referred to in 7.1
will not apply, unless Purchaser orders at least twenty-five(25)
machines "FaroArm" as referred to in 1.1 within the first twelve(12)
months period commencing from the date of signatures by the parties
hereto. If Purchaser has not ordered twenty-five(25) machines "FaroArm"
within such period, the rate of discount shall be twenty(20)% and such
new rate shall be applied on a retroactive basis to all previous
orders, and prices of all previous orders shall be recalculated
according to such new rate, and after such application, any shortfall
in payments due to Seller based on such recalculated prices shall be
due and payable immediately upon receipt of invoice from Seller.
Article 8. Payment
Unless otherwise agreed upon in writing between the parties hereto, Purchaser
shall pay to Seller within sixty (60) days after actual Air Waybill Date. Such
payment is to be made by telegraphic transfer to the account number of Seller's,
designated bank.
Article 9. Shipment
Unless otherwise agreed upon in writing, Seller shall effect shipment by air
transportation selected according to Purchaser's instructions stated on its
orders. The delivery terms for all shipments shall be on FOB U.S. Orlando
Airport basis as the meaning defined in "Incoterms 1990" of the International
Chamber of Commerce.
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Article 10. Packing & Marking
Packing and marking shall be at Seller's option, provided, however, that in case
of air-shipment such packing shall be airworthy in weight and strength, etc.
Article 11. Inspection
11.1 Inspection and testing of Products before shipment shall be conducted
by Seller in accordance with i) the inspection standard or pass/fall
criteria to be agreed upon between the parties hereto and ii) the Annex
1 attached hereto. The Seller's standard inspection and testing reports
shall be prepared as shown in the samples provided in Annex 3. attached
hereto and copies of such inspection and testing results shall
accompany Products at each shipment. Originals of such inspection and
testing results shall be mailed by Seller to Purchaser.
11.2 If Seller fails to attach the copy and/or present such inspection and
testing results stated in 11.1 above without any reasonable reason nor
any notice in advance to Purchaser, Purchaser shall be entitled to
reject such Products and return the same to Seller in Purchaser's
discretion. In such case Seller shall beat all the costs, expenses or
charges related to or arising from such rejection.
Article 12. Specifications and Technical Documents
12.1 Products to be supplied by Seller to Purchaser under this Agreement
shall be in accordance with the specifications agreed upon between the
parties hereto and set forth in the Annex I attached hereto. However,
in case any revision or supplement is necessary for such
specifications, the parties hereto shall decide such revision or
supplement by mutual negotiation on the basis of the specifications
commonly applied to the products similar to Products.
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12.2 Technical documents delivered by Seller hereunder shall not be
reproducible for Purchaser without Seller's prior written consent.
Technical documents so delivered and in Purchaser's possession shall be
stored strictly in confidence by Purchaser.
Article 13. Warranty
13.1 Seller warrants that Products shall be free from faults and defects in
workmanship or material affecting the fitness of Products for its usual
purpose under normal condition of use, service and maintenance and that
Products shall have the specified qualities according to the Products
specifications based on inspection standard.
13.2 Seller warrants that Products including the Software as referred to in
4.3 hereof shall operate and perform according to specifications and in
connection with the usual purpose for which Products are designed.
13.3 The period of warranties (hereinafter called "Warranty Period") set out
in 13.1 and 13.2 (hereinafter collectively called "Warranties") above
shall be twelve(12) months from the actual Air Waybill Date of
Products.
13.4 Subject to the limitations hereof, Warranties shall apply to any
defects found by Purchaser in the operation of Products and reported to
Seller within Warranty Period. In case of Seller's breach of any of
Warranties, Purchaser may return all the defective Products to Seller
at Purchaser's expense for shipping, and Seller will inspect such
defective Products. Without any charge, Seller shall in a reasonable
time repair such defective Products or replace the same with Products
free from defects and Seller shall pay shipping charges back to
Purchaser.
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13.5 Seller shall ship such replacement Products to Purchaser, effecting
insurance on Products for Purchaser. In such case the covering
insurance shall be air-transport insurance with All Risks, unless
otherwise stated.
13.6 Seller shall bear all the costs, expenses and charges related to or
arising from such defects, including, but not limited to, the costs of
transportation, insurance for the invoice amount plus ten(10) percent,
duties, fees and taxes.
13.7 Warranties do not apply to any defects in any component of Products if:
(1) Products have been improperly stored, installed, operated or
maintained, or
(2) Purchaser has permitted modifications, additions, adjustments
and/or repair, any of which has not been approved and
permitted by Seller.
i) to any memory device structures or content, or any other
part of Products, or
ii) which might affect Products.
13.8 Nothing contained herein shall be construed as obligating Seller to
make service, parts or repairs for Products available under the terms
and conditions for Warranties after the expiration of Warranty Period.
Such service, parts or repairs for Products made by Seller upon
Purchaser's request after the expiration of Warranty Period shall be
chargeable to Purchaser under the fee schedule agreed upon between the
parties hereto.
13.9 PURCHASER ACKNOWLEDGES THAT IT HAS PURCHASED PRODUCTS BASED UPON ITS
OWN KNOWLEDGE OF THE USES TO WHICH PRODUCTS WILL BE PUT. SELLER
SPECIFICALLY DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO THE FITNESS
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OF PRODUCTS FOR ANY PARTICULAR PURPOSE OR ARISING FROM THE INABILITY OF
THE PURCHASER TO USE PRODUCTS FOR ANY PARTICULAR PURPOSE.
13.10 If any claim for products liability regarding Products is made against
Seller by a third party, Purchaser shall indemnify and hold Seller
harmless against such claim except that Purchaser reasonably
establishes that any losses and damages sustained by Purchaser in
connection with such claim are resulted from Seller's liability. In
case such claim is made against either party, either party shall
immediately notify the other party thereof in writing, and the parties
hereto shall cooperate in taking appropriate countermeasure.
13.11 THIS WARRANTY IS IN LIEU OF ALL OTHER EXPRESSED OR IMPLIED WARRANTIES
(INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE). IN NO EVENT SHALL SELLER BE LIABLE
FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO, LOST PROFITS OR OTHER DAMAGES FROM LOSS OF PRODUCTION)
CAUSED BY DEFECTIVE MATERIAL, OR BY UNSATISFACTORY PERFORMANCE OF THE
PRODUCT OR BY ANY OTHER BREACH OF CONTRACT BY SELLER.
Article 14. Claims
After the arrival of Products to the destination, Purchaser may check the
Products in its own manner. In the event that any shortage, different content,
visible defect or any other difference from the order is found by Purchaser,
Purchaser may notify Seller in writing of any claim within sixty(60) days from
the arrival date of Products at the port of destination, except that Purchaser
shall notify Seller in writing of any claim related to latent defects in
accordance with 13.4 hereof.
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Article 15. Material and Education
15.1 Seller undertakes to provide Purchaser with all the materials and
information necessary for sale of Products, including, but not limited
to, the latest version of a users' manual, sales brochures and
literatures, as available from time to time, connected with the
Products, or amendments thereto as they occur from time to time.
15.2 Purchaser will have full support from Seller in the initial and ongoing
education in the manner and burden of costs agreed upon between the
parties hereto.
15.3 Seller shall provide Purchaser free of charge such technical and sales
information including advisory service as may be necessary for full
understanding of Products and for the proper distribution,
installation, servicing or maintenance of Products. As the case may be,
Purchaser may, at its own expenses, send its personnel to the place
designated by Seller for the above purpose after giving reasonable
notice of such visits.
Article 16. Industrial Property Right
Seller is responsible for any alleged infringement with regard to patent,
utility model, trademark, design or copyright relating to Products in Territory.
In the event of any dispute with regard to such intellectual and industrial
property rights, Purchaser may terminate this Agreement in Purchaser's
discretion. Seller is responsible for and shall defend, reimburse, indemnify and
hold Purchaser harmless from any liability, claim, expense, loss and/or damage
sustained thereby.
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Article 17. Trademarks, etc.
17.1 Seller shall xxxx or shall allow Purchaser to xxxx Products with the
trademarks and/or trade name of Purchaser in accordance with the manner
agreed upon between the parties hereto.
17.2 Seller shall have no right with respect to the trademarks and trade
name of Purchaser, provided, however, that Seller may use the
trademarks and trade name of Purchaser only for Products delivered to
Purchaser pursuant to this Agreement.
Article 18. Confidentiality
18.1 Either party shall keep in strict confidence and not to disclose
information marked with "confidential information" relating to this
Agreement, including, but not limited to, the conclusion and contents
of this Agreement, furnished by the other party.
18.2 The provision of 18.1 above shall not apply to the following:
(1) information which is or subsequently may be in public domain
through no fault of the receiving party; or
(2) information which the receiving party can show as a matter of
record was previously known to it at the time of its receipt;
or
(3) information which subsequently may be obtained lawfully from a
third party having the right to disclose it without any
obligation of confidentiality; or
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(4) information which is approved in writing by the furnishing
party for release of the receiving party; or
(5) information which the receiving party can show as a matter of
record was independently developed by the receiving party.
18.3 The provisions of 18.1 and 18.2 above shall survive expiration or
termination of this Agreement.
Article 19. Termination
19.1 In case there is any breach of the terms under this Agreement by either
party during the effective period of this Agreement, the other party
shall give notice in writing to such party to correct such breach.
Unless such breach is corrected within thirty (30) days after such
notice is received by the breaching party, the other party shall have
the right to terminate this Agreement by written notice thereafter and
the losses and damages sustained thereby shall be indemnified by the
breaching party.
19.2 Further, in the event of bankruptcy, insolvency, dissolution,
consolidation or receivership proceedings affecting the operation of
business for any reason by either party, the other party shall have the
right to terminate this Agreement with a written notice to such party.
Article 20. Stocks and/or Outstanding Orders
In the event of expiration or termination of this Agreement for Purchaser's own
reason, not attributable to Seller, Purchaser shall be liable for keeping all
the stocks of purchased Products and Products in transit, and yet accepting all
the shipments for then outstanding order of Purchaser to be shipped by Seller.
All the stocks of such Products, Products in transit and such outstanding orders
are at Purchaser's disposal in case of expiration or termination of this
Agreement for Seller's reason.
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Article 21. Steps after Expiration/Termination
On the expiration or termination of this Agreement, Purchaser reserves the right
to purchase, for a period of ten (10) years from the date of expiration or
termination of this Agreement, parts and components of Products from Seller for
Purchaser's direct or indirect (in case of such services through Purchaser's
distribution channels) after-sale service for its End-Users.
Article 22. Notice
22.1 All necessary notices or requests by either party to the other party in
performing this Agreement shall be addressed to the first above written
address or the address designated by the other party. Such notices or
requests shall be deemed to take effect on and from such receipt.
22.2 Any party shall notify the other party in writing of any change of
address to which all notices or requests shall be sent.
Article 23. Arbitration and Applicable Law
23.1 All disputes, controversies or differences which may arise between the
parties, out of or in relation to or in connection with this Agreement,
or the breach thereof, shall be finally settled by arbitration pursuant
to the Japan-American Trade Arbitration Agreement, of September 16,
1952, by which each party hereto is bound.
23.2 This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Florida, U.S.A.
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Article 24. Assignment
Neither party shall assign, transfer or otherwise dispose of this Agreement in
whole or part to any person, firm or corporation without the prior written
consent of the other party, in such party's sole discretion.
Article 25. Waiver
Any failure of either party to enforce, at any time or for any period of time,
any of the provisions of this Agreement shall not be construed as a waiver of
such provisions or of the right of such party thereafter to enforce each such
provision.
Article 26. Force Majeure
Neither party hereto shall be liable in any manner for failure or delay upon
fulfillment of all or part of this Agreement, directly or indirectly, owing to
causes or circumstances beyond the control of such party, including, but not
limited to, Acts of God, governmental orders or restriction, war, sanctions,
blockade, revolution, riot, strikes, epidemics, or fire.
Article 27. Trade Terms
All trade terms under this Agreement and each individual contract shall be
interpreted in accordance with the provisions of 'Incoterms 1990" of the
International Chamber of Commerce.
Article 28. Entire Agreement
This Agreement constitutes the final and entire agreement between ihe parties
hereto with respect to any subject matter herein and shall supersede all
previous representations, understandings and agreements between the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate in Florida, U.S.A. by their duly authorized officers or
representatives as of the date first above written.
FARO Technologies, Inc.
000 Xxxxxxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxx 00000, X.X.X.
Phone: 000-000-0000
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Telefax: 000-000-0000
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By: /s/ Xxxxxxx X. Xxxxxx
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Name & Title: Xxxxxxx X. Xxxxxx, Vice
President
Mitutoyo Corporation
00-0, Xxxxxx 0-xxxxx, Xxxxxxx-xx,
Xxxxxxxx, Xxxxxxxx 000, Xxxxx
Phone: (044) 813 - 8230
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Telefax: (044) 813 - 8231
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By: /s/ Xxxxx Xxxxxxxxx
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Name & Title: Xxxxx Xxxxxxxxx, President
