MASTER PURCHASE AGREEMENT
THIS MASTER PURCHASE AGREEMENT ("Agreement") is made effective as of
December 28, 1995 by and between THERMO XXXXXXX XXX CORPORATION, a Massachusetts
corporation whose address is 00 Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000-0000 ("TJA"), and THERMO INSTRUMENT SYSTEMS INC., a Delaware corporation
whose address is 000 Xxxxxxx Xxxx, Xxxxx Xx, Xxx Xxxxxx 00000 and which is the
parent corporation of TJA ("Thermo Instrument") (TJA and Thermo Instrument being
sometimes collectively referred to herein as "Thermo"), and ON-SITE ANALYSIS,
INC., a Georgia corporation whose address is 0000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000-0000 ("OSA, Inc."), and TOP SOURCE TECHNOLOGIES, INC., a
Delaware corporation whose address is 0000 XXX Xxxxxxxxx, Xxxxx 0000, Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000 and which is the parent corporation of OSA, Inc.
("Top Source") (OSA, Inc. and Top Source being sometimes collectively referred
to herein as "TSI").
W I T N E S S E T H:
WHEREAS, TSI and United Testing Group, Inc., a Georgia corporation
which is the successor (by way of merger) to Spectro/Metrics, Inc., a Georgia
corporation, and whose parent corporation is Top Source ("UTG"), and TJA and
Nicolet Instrument Corporation, a Wisconsin corporation whose parent corporation
is Thermo Instrument ("Nicolet"), have each contributed certain Technical
Contributions (as hereinafter defined) in the joint development of the On-Site
Analyzer (as hereinafter defined); and
WHEREAS, Top Source and UTG have transferred or licensed their
Technical Contributions to OSA, Inc., and Thermo Instrument and Nicolet have
transferred or licensed their Technical Contributions to, or otherwise
authorized the use thereof by, TJA; and
WHEREAS, the parties intend from time to time jointly to modify the
specifications for the On-Site Analyzer in order to create specialized
instrumentation (individually, a "Specialized Unit" and, collectively, the
"Specialized Units") for use in different commercial applications relating to
Oil Analysis (as hereinafter defined); and
WHEREAS, OSA, Inc., in addition to its Technical Contributions, will be
contributing to the commercial exploitation of the Specialized Units the
marketing expertise of OSA, Inc., and the knowledge of the business of Oil
Analysis required in order to determine which commercial applications are
technologically feasible and otherwise appropriate for each Specialized Unit
which may be developed; and
WHEREAS, TJA, in addition to its Technical Contributions, will be
contributing to the commercial exploitation of the Specialized Units the
manufacturing expertise of TJA required in order to
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ensure that each Specialized Unit functions in substantial conformance with the
Specialized Unit Specification (as hereinafter defined) applicable thereto, upon
the terms and subject to the conditions more particularly set forth in this
Agreement; and
WHEREAS, the parties wish to memorialize their agreement regarding
their rights and obligations with respect to the Specialized Units and the
commercial exploitation thereof as hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
accepted, the parties hereto do agree as follows:
1. DEFINITIONS.
In addition to such other terms as may be defined elsewhere in this
Agreement, the following terms as used herein shall have the meanings ascribed
in this Article:
1.1 Customer means a person or entity who purchases, leases
or licenses a Specialized Unit from OSA, Inc. as contemplated by
the terms of this Agreement.
1.2 Customer Site means a location at which a Specialized Unit will be
installed as herein provided for Customer use.
1.3 Instrument Software means, with respect to any Specialized Unit
developed hereunder, that portion of the computer software operating system and
any application software used to operate the Specialized Unit, in object code
form only, developed by or for (and owned or licensed by) TJA and all future
modifications and enhancements thereto developed by or for (and owned or
licensed by) TJA, all as incorporated in the Specialized Unit. Instrument
Software shall not include the OSA, Inc. Software or any other proprietary
software of OSA, Inc.
1.4 Integrated Instrument means any integrated apparatus used for
analysis of mineral oils, synthetic oils and hydraulic fluids, which combines an
optical emission spectrometer ("OES") with spark excitation and a Fourier
transform infrared spectrometer ("FTIR") in one cabinet with a single computer
control.
1.5 Intellectual Property means all intellectual property rights
existing from time to time, including without limitation any patents, design
rights or registered designs, trademarks or service marks (and any application
throughout the world or the right to apply therefor), copyrights (whether
registered or unregistered, and including moral rights), know-how (including
without limitation engineering and technical know-how), trade secrets,
confidential
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information, any business name, trade name or style or brand name and any
merchandising rights.
1.6 Oil Analysis means the testing and analysis of any and all
petrochemical-based lubricants, synthetic oils and hydraulic fluids in any and
all stages of processing, production or use, including (without limitation)
extraction, refinement, product-in- use and waste, regardless of the industry or
purpose for which such testing and analysis is performed. Petrochemical-based
fluids other than those identified in the preceding sentence are not within the
scope of "Oil Analysis" and are excluded from the definition thereof.
1.7 Operator's Manual means the written materials produced by
OSA, Inc. and supplied to a Customer in conjunction with any given
Specialized Unit instructing the Customer in the use of such
Specialized Unit.
1.8 On-Site Analyzer or OSA means the Integrated Instrument (and
software incorporated therein, including without limitation the Instrument
Software and OSA, Inc. Software) described in the specifications attached hereto
as Exhibit A entitled "'U' Specification" and incorporated herein by this
reference, as the same may be amended from time to time.
1.9 OSA, Inc. Software means, with respect to any Specialized Unit
developed hereunder, that portion of the computer software operating system and
any application software used to operate the Specialized Unit, in object code
form only, developed by or for (and owned or licensed by) OSA, Inc. and all
future modifications and enhancements thereto developed by or for (and owned or
licensed by) OSA, Inc., all as incorporated in the Specialized Unit. OSA, Inc.
Software shall not include Instrument Software or any other proprietary software
of TJA.
1.10 Party or "party" means Thermo considered as one party (or any one
or both of TJA or Thermo Instrument, as the context may require) and TSI
considered as one party (or any one or both of OSA, Inc. or Top Source, as the
context may require).
1.11 Technical Contributions means, with respect to any
Specialized Unit developed hereunder, Intellectual Property
contributed respectively by OSA, Inc. (itself or as transferee or
licensee of Top Source and UTG) and TJA (itself or as transferee,
licensee, or authorized designee of Thermo Instrument and Nicolet)
in the development of the Specialized Unit. Technology,
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engineering and other technical know-how constituting prior art existing within
the public domain as of the effective date of this Agreement shall be expressly
excluded from the definition of Technical Contributions hereunder.
2. SPECIALIZED UNIT ADDENDA.
Upon the development of specifications mutually acceptable to the
parties for a Specialized Unit which OSA, Inc. desires to purchase from TJA and
TJA desires to sell to OSA, Inc. (as to each such Specialized Unit, the
"Specialized Unit Specification"), the parties shall execute an Addendum to this
Agreement, in form mutually acceptable to the parties (a "Specialized Unit
Addendum"), setting forth the Specialized Unit Specification and the purchase
price applicable to such Specialized Unit (the "Purchase Price"). Each
Specialized Unit Addendum shall be a separate and enforceable agreement, shall
incorporate therein all of the terms and conditions of this Agreement, and shall
contain such additional terms and conditions as the parties mutually agree upon.
3. OWNERSHIP OF SPECIALIZED UNITS AND RELATED INTELLECTUAL
PROPERTY.
3.1 Technical Contributions, Etc. Except to the extent
expressly otherwise provided in this Agreement, TJA and OSA, Inc.
shall each remain fully vested with all right, title and interest
(as owner, licensee or designee, as the case may be) in and to its
respective Technical Contributions.
3.2 Marks. Specialized Units (and related services) shall be sold,
leased, licensed, sublicensed, distributed and marketed as permitted herein only
under the trademarks, trade names, service marks and trade dress of OSA, Inc.
(collectively, the "OSA, Inc. Marks"). Specialized Units (and related services)
shall not be sold, leased, licensed, sublicensed, distributed or marketed under
the trademarks, trade names, service marks or trade dress of TJA, Thermo
Instrument or Nicolet (collectively, the "TJA Marks"). Notwithstanding the
foregoing provisions of this Section 3.2, OSA, Inc. shall not remove or obscure
any notice of copyright, patent, trademark, trade secret or restricted or
limited rights which may be contained on the Instrument Software and/or any of
TJA's Technical Contributions. For purposes of this Agreement, the OSA, Inc.
Marks and the TJA Marks are referred to collectively as the "Marks." No party
shall use any of the Marks of another party hereto without the prior written
consent of the other party. No
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party shall register, agree to register or assist any other person in
registering any Marks of another party hereto in any jurisdiction in the world.
Each party acknowledges that the other has the exclusive right, title and
interest in and to such other party's respective Marks. Each party agrees that
it will not use, without the other's prior written consent, any Marks which are
likely to be similar to or confused with the Marks of the other party.
Notwithstanding the foregoing, OSA, Inc. shall have the right to identify TJA as
the manufacturer of any Specialized Unit developed hereunder, and to identify
any TJA Marks affixed by TJA to components of the Specialized Unit, in
presentations marketing the Specialized Unit, and in sales, advertising and
marketing materials for the Specialized Unit; provided, however, that (i) TJA
shall have the right to pre-approve in writing all such written sales,
advertising and marketing materials referencing TJA and/or any TJA Marks prior
to the dissemination of such materials by OSA, Inc., (ii) except where such
identification is required by law (and in such cases, TJA shall be notified
prior to the making of such identification), TSI shall obtain TJA's prior
written consent to identify TJA or any TJA Marks in relation to the Specialized
Unit in any press release or public statement, including without limitation
those to the financial community, and (iii) if TJA determines, in good faith,
that the TJA Marks are being used by OSA, Inc. in a manner which is detrimental
to the reputation of TJA (including without limitation in connection with the
sale, leasing, licensing or sublicensing of one or more Specialized Units to any
Customer for an application as to which the applicable Specialized Unit
Specification is, in TJA's sole discretion, inadequate or otherwise
inappropriate), then, in such event, TJA shall so notify OSA, Inc., and OSA,
Inc. shall immediately remove all TJA Marks from Specialized Units then in OSA,
Inc.'s possession and thereafter shall not identify TJA as the manufacturer of
the Specialized Units nor otherwise use the TJA Marks in any manner, including
without limitation in connection with the sale, leasing, licensing,
sublicensing, distribution or marketing of the Specialized Units (or related
services). The consents required of TJA pursuant to the provisions of the
immediately preceding sentence shall not unreasonably be withheld or delayed,
provided TJA expressly reserves the right to make determinations in TJA's sole
discretion to the extent set forth in clause (iii) of said sentence.
4. USE OF TECHNICAL CONTRIBUTIONS, ETC.
4.1 General. Except to the extent permitted by the terms of
this Agreement, neither party may use the Technical Contributions
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of the other party in any manner whatsoever without the express written consent
of such other party.
4.2 Instrument Software. TJA hereby grants to OSA, Inc. a
nontransferable (except to the extent expressly otherwise provided
herein), nonexclusive right and license to use the Instrument
Software, subject to the following:
4.2.1 Use of the Instrument Software by OSA, Inc. shall
be solely in connection with the ordinary operation of a
Specialized Unit, as specified in the applicable Operator's Manual
.
4.2.2 OSA, Inc. shall have the right to grant to any Customer
(and shall in any event not grant rights greater than) a nonexclusive,
nontransferable sublicense (expressly excluding the right by the Customer to
further sublicense) for the sole purpose of allowing the Customer to use the
Instrument Software in connection with the ordinary operation of the Specialized
Unit, as specified in the Operator's Manual.
4.2.3 The license to OSA, Inc., and any Customer's sublicense,
shall encompass only object code.
4.2.4 OSA, Inc. is prohibited from, and any Customer's
sublicense shall prohibit the Customer from, (a) copying, accessing or
downloading the Instrument Software, other than in connection with the ordinary
operation of the Specialized Unit in accordance with the Operator's Manual; (b)
decompiling, disassembling or reverse engineering the Instrument Software; (c)
removing or obscuring any notice of copyright, patent, trademark, trade secret
or restricted or limited rights; or (d) removing or obscuring any export
restriction or similar notice contained on the Instrument Software.
4.3 OSA, Inc. Software. OSA, Inc., hereby grants to TJA a
nontransferable, nonexclusive right and license to use the OSA,
Inc. Software, subject to the following restrictions:
4.3.1 TJA shall have the right only to copy and use the OSA,
Inc. Software solely in connection with (a) developing the Instrument Software
for purposes of this Agreement for the mutual benefit of the parties hereto and
(b) installation of the OSA, Inc. Software into Specialized Units prior to
shipment by TJA to OSA, Inc. or Customers.
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4.3.2 Without limiting the foregoing, TJA agrees not to (a)
copy, access or download the OSA, Inc. Software; (b) decompile, disassemble or
reverse engineer the OSA, Inc. Software; (c) remove or obscure any notice of
copyright, patent, trademark, trade secret, restricted or limited rights; or (d)
remove or obscure any export restriction or similar notice contained on the OSA,
Inc.
Software.
5. MANUFACTURING.
5.1 Manufacture by TJA. TJA shall manufacture Specialized Units
developed hereunder (including, without limitation, installing the Instrument
Software thereon) and supply such Specialized Units to OSA, Inc. in accordance
with the terms and conditions of this Agreement.
5.2 Specifications. IT IS EXPRESSLY UNDERSTOOD AND AGREED BY THE
PARTIES HERETO THAT ANY MODIFICATION OF THE SPECIALIZED UNIT SPECIFICATION MUST
BE APPROVED IN WRITING BY BOTH THE PRESIDENT OF TJA AND THE PRESIDENT OF OSA,
INC., WHICH APPROVAL MAY BE WITHHELD BY EITHER TJA OR OSA, INC. IN SUCH PARTY'S
SOLE AND ABSOLUTE DISCRETION, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT,
EXCEPT AS MAY BE EXPRESSLY AGREED TO BY THE PARTIES AS PROVIDED ABOVE IN THIS
SECTION 5.2, NEITHER TJA NOR THERMO INSTRUMENT HAS ANY OBLIGATION UNDER THIS
AGREEMENT, EXPRESS OR IMPLIED, TO MANUFACTURE, DELIVER OR OTHERWISE PROVIDE TO
OSA, INC. OR TOP SOURCE ANY SPECIALIZED UNIT WHICH DIFFERS IN ANY MANNER FROM
THE SPECIALIZED UNIT SPECIFICATION ORIGINALLY DEVELOPED AND AGREED UPON BY THE
PARTIES WITH RESPECT THERETO.
6 RIGHT TO MODIFY.
Notwithstanding any provision herein to the contrary, it is understood
and agreed by the parties hereto that OSA, Inc. shall have the right, alone or
in conjunction with any third party, to modify (including without limitation to
add or substitute component parts) in any manner any Specialized Unit purchased
by OSA, Inc. hereunder (so long as OSA, Inc. does not infringe upon the
Instrument Software or any of TJA's Technical Contributions); provided, however,
that any such modification shall immediately void and cancel, with respect to
the Specialized Unit so modified, (i) all Installation obligations under Section
9.1, (ii) all maintenance obligations under Section 9.2 and (iii) all warranties
under Section 10.1.1. . Upon the modification of any Specialized Unit pursuant
to the provisions of this Article 6, OSA, Inc.
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immediately shall remove all TJA Marks therefrom and thereafter shall not
identify TJA as the manufacturer of the same nor otherwise use the TJA Marks in
any manner with respect to such modified Specialized Unit, including without
limitation in connection with the sale, leasing, licensing, sublicensing,
distribution or marketing thereof.
7. SHIPMENT; DELIVERY.
7.1 Site Survey Report. OSA, Inc. agrees to deliver to TJA,
prior to the week in which an order for Specialized Units hereunder is to be
shipped by TJA, a completed Site Survey Report with respect to each Customer to
which such order relates in substantially the form of Exhibit B attached hereto
and incorporated herein by this reference (the "Site Survey Report"). It is
understood and agreed that one purpose of such Site Survey Report is to enable
TJA to contact any Customer directly, whether by mail, telephone, facsimile,
computer modem or otherwise, in order to relay to such Customer information
regarding the use, operation and/or maintenance of the Specialized Unit(s) in
such Customer's possession.
7.2 Terms and Conditions. No terms or conditions of any order for
Specialized Units other than the terms and conditions set forth in this
Agreement shall apply to purchases of Specialized Units by OSA, Inc.
7.3 Shipment. Specialized Units shall be shipped to the destination
specified by OSA, Inc., on an F.O.B. destination basis.. Unless otherwise
requested by OSA, Inc., TJA shall select the carrier. Partial shipments shall be
permitted and TJA may invoice each shipment separately. All shipping costs shall
be borne by OSA, Inc., and all Specialized Units shall be insured in transit by
TJA (unless otherwise requested by OSA, Inc.), at the expense of OSA, Inc. OSA,
Inc. shall reimburse TJA for such shipping and insurance costs promptly upon
demand. The delivery date for any given shipment of Specialized Units will be
mutually agreed upon by the parties at the time of TJA's acceptance of the order
therefor.
7.4 Return Authorization. No Specialized Unit shipped by TJA
may be returned without TJA's written permission. All shipping
expenses on returned Specialized Units will be paid by the party
who necessitated the return (the "Responsible Party"). In the
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event such expenses are not paid by the Responsible Party, the other party may
invoice the Responsible Party therefor.
7.5 Shortages; Damages in Transit. If the quantity of Specialized Units
received by OSA, Inc. shall be less than the quantity shown in the applicable
invoice, or if the Specialized Units received by OSA, Inc. shall have been
damaged in transit, OSA, Inc. shall, within twenty (20) days after receipt of
such goods, give written notice of such shortage or damage to the agent of the
delivery carrier in order to permit written verification of the shortage or
damage by the delivery carrier and substantiate a formal claim when and if
presented. OSA, Inc. shall promptly send a copy of such notice to TJA.
7.6 Title and Risk of Loss. Subject to any claims pursuant to Section
7.5, title to and post-delivery risk of loss for Specialized Units shall pass to
OSA, Inc. upon delivery of the Specialized Units to the designated destination;
provided, however, that title to the Instrument Software shall at all times
remain with TJA (or its licensor). OSA, Inc. shall reasonably cooperate with TJA
in any documentation and proof of loss claims promptly presented by TJA to the
appropriate carrier and/or insurer.
7.7 Title Matters. OSA, Inc. shall have flexibility in its discretion
to arrange for title to any Specialized Unit to be transferred at any time to
any third party, including, without limitation, finance corporations, subject to
compliance with the provisions of Section 14.2 below. Written notice of any such
transfer, together with the identity of the transferee, shall be promptly
presented to TJA by OSA, Inc.
8. PAYMENT TERMS.
8.1 Payments Net. An amount equal to forty percent (40%) of the total
Purchase Price allocable to a given order for Specialized Units hereunder shall
be paid by OSA, Inc. at the time of the order. The balance of the Purchase Price
will be paid within thirty (30) days after the date of shipment. All amounts
payable by OSA, Inc. to TJA under this Agreement shall be paid net of all
freight charges, insurance premiums, taxes (including without limitation sales,
value-added and use taxes, but excluding taxes based on TJA's net income),
tariffs and other governmental charges, payment of which shall be the
responsibility of OSA, Inc. If TJA is required to pay any such charge, premium,
tax, tariff or other charge based on goods sold or any services performed under
this Agreement, then the same (together with any penalties and/or
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interest thereon) shall be billed to and paid by OSA, Inc. All
payments hereunder shall be made in U.S. dollars.
8.2 Late Payment Charges. In addition to any other remedies available
to TJA hereunder, if OSA, Inc. fails to pay any amounts when due, OSA, Inc.
shall pay TJA interest on such overdue amounts at the rate of 2.0% per month (or
the highest rate permitted by law, if lower) from the date due until paid
(calculated on the basis of a thirty (30)-day month and pro-rated on a per diem
basis with respect to any partial month), together with all costs and expenses,
including without limitation reasonable attorneys' fees, incurred by TJA in
collecting such overdue amounts.
8.3 OSA, Inc. Pricing. OSA, Inc. shall be free to establish
its own pricing for Specialized Units sold, leased or licensed to
Customers and shall have no obligation whatsoever to TJA to account
for any differential relative to the applicable Purchase Price
paid to TJA therefor.
9. INSTALLATION, TRAINING AND MAINTENANCE.
9.1 Installation.
9.1.1 Installation Obligation. TJA shall install each
Specialized Unit at the applicable Customer Site ("Installation") located within
the United States within twenty (20) business days after delivery of the
Specialized Unit to the Customer Site. TJA may, in its discretion and for an
additional fee as specified in Section 9.1.3, arrange for Installation at
Customer Sites outside of the United States. TJA may subcontract its
Installation obligations hereunder to a qualified subcontractor.
9.1.2 Customer Site. Notwithstanding the provisions of Section
9.1.1 above, TJA's Installation obligation need not be completed until the
latest to occur of (a) the expiration of the twenty (20) business day period
referenced in Section 9.1.1 above; (b) the second (2nd) business day after
receipt by TJA of the Site Survey Report referenced in Section 7.1 above or (c)
the fourteenth (14th) day after receipt by TJA of written notice from OSA, Inc.
that the following conditions have been satisfied: (i) the Customer Site is in
compliance with the site specifications listed on Exhibit C attached hereto and
incorporated herein by this reference and is otherwise safe and appropriate for
Installation; and (ii) any third-party equipment to be used in conjunction with
the Specialized Unit has been reasonably approved by TJA and is operating
according to the manufacturer's specifications. TJA or
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its designated subcontractor shall perform the unpacking of the Specialized Unit
at the Customer Site. On the date scheduled for Installation, OSA, Inc. shall
cause appropriate personnel of the Customer or OSA, Inc. or both to be available
to cooperate with TJA, allowing TJA to use without charge any of the Customer's
equipment and facilities which TJA reasonably deems necessary for Installation.
TJA shall give OSA, Inc. and/or the Customer sufficient advance notification of
personnel required for completion of the Installation. The Customer Site shall
remain accessible to TJA throughout the period of Installation. Upon
Installation of a Specialized Unit, TJA or its designated subcontractor or
agent, as the case may be, shall perform TJA's standard acceptance test
procedures to confirm that the Specialized Unit operates in substantial
conformance with the Specialized Unit Specification applicable thereto. Upon
successful completion of the aforesaid acceptance test procedures, Installation
of the Specialized Unit shall be deemed complete.
9.1.3 Installation Fee. Specialized Units shall be installed
by TJA free of charge in the United States. If TJA in its discretion agrees to
install a Specialized Unit outside of the United States, TJA will charge an
installation fee in accordance with TJA's then current rates (the "Installation
Fee"). The terms and conditions of Section 9.1.2 shall be applicable to any
Installation to be performed by TJA outside of the United States.
9.1.4 Reinstallation. In the event a Customer desires to
relocate a Specialized Unit previously installed by TJA, TJA shall install the
Specialized Unit at the new Customer Site within the United States
("Reinstallation"), provided that the terms and conditions of Section 9.1.2
above are satisfied with respect to the Reinstallation at the new Customer Site.
TJA shall charge a fee, payment of which shall be the responsibility of the
Customer, for Reinstallation in accordance with TJA's then current rates (the
"Reinstallation Fee").
9.1.5 Unauthorized Installation or Reinstallation. OSA,
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Inc. shall have the right to elect to have the Installation or
Reinstallation of any Specialized Unit performed by OSA, Inc. or
any third party, including without limitation a Customer; provided,
however, that any Installation or Reinstallation of a Specialized
Unit at a Customer Site or any other location by any person or
entity other than TJA or TJA's designated subcontractor or agent
without the express written consent of TJA, signed by the President
of TJA and specifically referencing this Section 9.1.5. (an
"Unauthorized Installation"), shall automatically invalidate and
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void any TJA warranty with respect to such Specialized Unit. TJA HEREBY
DISCLAIMS ALL LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, COSTS AND DAMAGES TO THE
EXTENT ARISING FROM OR ATTRIBUTABLE TO ANY UNAUTHORIZED INSTALLATION OR
REINSTALLATION OF A SPECIALIZED UNIT.
9.2 Maintenance. OSA, Inc. agrees to retain TJA to provide all
maintenance with respect to Specialized Units manufactured or supplied by TJA
hereunder, provided TJA's maintenance services are competitive. The
determination as to whether or not the maintenance services of TJA are
competitive for purposes of this Section 9.2 shall be based upon such factors
as, without limitation, timeliness of performance, price and professional
competence. If OSA, Inc. requests that TJA provide all maintenance with respect
to Specialized Units manufactured or supplied by TJA hereunder, TJA agrees to
provide the same in accordance with the terms of TJA's standard form of
maintenance agreement (whether or not TJA's maintenance services are
competitive). Payment for maintenance services provided by TJA hereunder shall
be made by OSA, Inc. to TJA on a time and materials basis at TJA's then current
rates. TJA may subcontract any such maintenance services to qualified
subcontractors. In the event that TJA's services are not competitive, OSA, Inc.
shall have the right to elect to obtain said maintenance directly from third
party vendors. In the event that OSA, Inc. contracts with any party other than
TJA to provide such maintenance services, OSA, Inc. agrees to defend, indemnify
and hold harmless TJA, its parent, subsidiaries and affiliates (including
without limitation Thermo Instrument) from and against any and all losses,
damages, liabilities and expenses (including without limitation reasonable
attorneys' fees and disbursements and court costs) incurred in connection with
third party claims or suits, whether based in xxxxxxx, xxxxxxxx, xxxx, xxxxxx
liability, breach of warranty or otherwise, to the extent arising, or alleged by
such third party claimant to arise, by reason of the acts or omissions of any
such third party service provider. It is understood and agreed that in no event
shall OSA, Inc., or any third party service provider retained by OSA, Inc., have
any right to the use of any diagnostic software owned by, or otherwise developed
on behalf of, TJA or Thermo Instrument. TJA shall have no obligation to provide
service manuals to OSA, Inc. or to any third party service provider. If it is
determined that TJA's maintenance services are competitive with respect to
certain geographic areas and not others, and OSA, Inc. elects to contract with
one or more third party service providers with respect to any such geographic
area or areas as to which TJA's services are not competitive, TJA shall in such
event have the right to elect not to provide maintenance services with respect
to Specialized Units
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located in any remaining areas.
10. WARRANTY AND LIMITATION OF LIABILITY.
10.1 Warranties to OSA, Inc.
10.1.1 TJA warrants to OSA, Inc. that the Specialized Units
(including, without limitation, the Instrument Software) purchased from TJA
shall (a) upon initial delivery be free from material defects in workmanship or
materials and (b) upon initial delivery and for a period of six (6) months after
initial shipment (the "Warranty Period") operate substantially in accordance
with the Specialized Unit Specification applicable thereto when subjected to
normal, proper and intended usage. TJA agrees during the Warranty Period,
provided it is promptly notified in writing upon the discovery of any defect, to
repair or replace, at its option, free of charge, defective Specialized Units so
as to cause the same to conform to the warranties set forth in clauses (a) or
(b) above, as the case may be, and such repair or replacement shall constitute
the sole and exclusive remedy for breach of any such warranty. Replacement parts
may be new or refurbished, at the election of TJA. All costs for returning
defective Specialized Units to TJA shall be paid by OSA, Inc., with
reimbursement of such costs to be made by TJA to OSA, Inc. within thirty (30)
days following TJA's receipt of an invoice and reasonable back-up documentation
therefor. Notwithstanding anything to the contrary contained herein, TJA makes
no warranties (INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE) with respect to equipment, materials or
software (including without limitation the OSA, Inc. Software) not manufactured
by TJA, Thermo Instrument, or any parent, subsidiary or affiliate of either.
Lamps, mercury bulbs and other minor expendable items are further expressly
excluded from this warranty. TJA agrees to assign to OSA, Inc. any
manufacturer's warranty relating to any such excluded equipment, materials and
software, to the extent the same is assignable. If TJA determines that any
Specialized Unit for which OSA, Inc. or any Customer has requested warranty
service is not covered by the terms of the warranty under clause (a) or (b)
above, OSA, Inc. shall pay or reimburse to TJA all costs of investigating and
responding to such request at TJA's then prevailing time and materials rates.
ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, ALTERATION, MODIFICATION
(PURSUANT TO THE TERMS OF ARTICLE 6 ABOVE OR OTHERWISE), RELOCATION OR OTHER
TAMPERING TO OR WITH A SPECIALIZED UNIT PERFORMED BY ANY PERSON OR ENTITY OTHER
THAN TJA OR TJA's DESIGNATED SUBCONTRACTOR OR AGENT WITHOUT TJA'S WRITTEN
APPROVAL SIGNED BY THE PRESIDENT OF TJA AND
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SPECIFICALLY REFERENCING THIS SECTION 10.1.1, OR ANY USE OF REPLACEMENT PARTS
SUPPLIED BY ANY PARTY OTHER THAN TJA WITHOUT TJA'S WRITTEN APPROVAL SIGNED BY
THE PRESIDENT OF TJA AND SPECIFICALLY REFERENCING THIS SECTION 10.1.1 (IT BEING
UNDERSTOOD AND AGREED THAT REPLACEMENT PARTS DELIVERED DIRECTLY TO OSA, INC. OR
TO ANY CUSTOMER BY TJA, TJA's DESIGNATED SUBCONTRACTOR OR AGENT OR A THIRD PARTY
VENDOR AT THE DIRECTION OF TJA WILL BE DEEMED TO HAVE BEEN SUPPLIED BY TJA FOR
PURPOSES OF THIS SECTION 10.1.1), SHALL IMMEDIATELY VOID AND CANCEL ALL
WARRANTIES WITH RESPECT TO SUCH SPECIALIZED UNITS (BUT SHALL NOT IMPAIR ANY
VALID WARRANTY CLAIMS THERETOFORE ACCRUED WITH RESPECT TO SUCH SPECIALIZED
UNITS).
10.1.2 TJA warrants that the Instrument Software and Technical
Contributions of TJA do not violate or infringe the United States Intellectual
Property rights of any third party.
10.1.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TJA
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH
RESPECT TO THE SPECIALIZED UNITS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
10.2 Limitation of Liability.
10.2.1 (a) TJA's LIABILITY FOR DAMAGES TO OSA, INC. OR ANY
CUSTOMER FOR ANY BREACH OF WARRANTY CLAIM HEREUNDER SHALL NOT EXCEED THE PRICE
PAID FOR THE SPECIALIZED UNIT TO WHICH SUCH BREACH RELATES; AND (b) TJA SHALL IN
NO EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF DATA, PROFITS OR USE, ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE SPECIALIZED UNITS.
10.2.2 IN NO EVENT SHALL TJA BE LIABLE TO CUSTOMERS OR OTHER
THIRD PARTIES FOR, AND, SUBJECT TO THE LIMITATIONS IN SECTION 10.2.3, OSA, INC.
SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS TJA, ITS PARENT, SUBSIDIARIES AND
AFFILIATES (INCLUDING WITHOUT LIMITATION THERMO INSTRUMENT AND NICOLET) FROM AND
AGAINST, ANY DAMAGES TO THE EXTENT (a) CAUSED BY ANY INSTALLATION, MAINTENANCE,
REPAIR, SERVICE, ALTERATION, MODIFICATION (PURSUANT TO THE TERMS OF ARTICLE 6
ABOVE OR OTHERWISE), RELOCATION OR OTHER TAMPERING TO OR WITH ANY SPECIALIZED
UNIT PERFORMED BY ANY PARTY OTHER THAN TJA OR TJA's DESIGNATED SUBCONTRACTOR OR
AGENT WITHOUT TJA'S WRITTEN APPROVAL SIGNED BY THE PRESIDENT OF TJA AND
SPECIFICALLY
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REFERENCING THIS SECTION 10.2.2; (b) DUE TO A CUSTOMER'S FAILURE TO OBSERVE THE
SAFETY INSTRUCTIONS ACCOMPANYING ANY SPECIALIZED UNIT, INCLUDING WITHOUT
LIMITATION THOSE CONTAINED IN THE OPERATOR'S MANUAL OR DUE TO THE CUSTOMER
HAVING ALTERED, OBSCURED OR REMOVED WARNING OR OTHER LABELS OR MATERIALS
PROVIDED BY TJA; (c) DUE TO THE NATURE OR CONTENT OF THE DIAGNOSTIC DATA OR
OTHER RESULTS GENERATED OR PRODUCED BY THE OSA, INC. SOFTWARE; (d) DUE TO USE OR
STORAGE OF AN UNPACKED SPECIALIZED UNIT IN A PHYSICAL ENVIRONMENT WHICH IS NOT
IN CONFORMANCE WITH THE OPERATING ENVIRONMENT DESCRIBED IN THE SPECIALIZED UNIT
SPECIFICATION APPLICABLE THERETO; OR (e) DUE TO ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF DATA, PROFITS OR
USE, IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY SPECIALIZED UNIT;
PROVIDED, HOWEVER, THAT OSA, INC. SHALL HAVE NO LIABILITY UNDER THIS SECTION
10.2.2 TO THE EXTENT ANY DAMAGES ARE ATTRIBUTABLE TO THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF TJA, OR ITS PARENT, AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES
OR CONTRACTORS. The foregoing provisions of this Section 10.2.2 are not intended
to limit the express terms of any warranty set forth herein, including without
limitation in clause (b) of Section 10.1.1 above regarding substantial
conformance of a Specialized Unit with the Specialized Unit Specification
applicable thereto during the Warranty Period; provided, however, that to the
extent any warranty claim made against TJA is attributable to the occurrence of
any one or more of the events enumerated in clauses (a) through (e) above, OSA,
Inc. shall indemnify TJA for all costs incurred by TJA in connection with such
claim.
10.2.3 OSA, INC. SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS,
ARISING OUT OF THIS AGREEMENT.
10.3 Warranty to TJA. OSA, Inc. warrants that the OSA, Inc.
Software and Technical Contributions of OSA, Inc. do not violate or
infringe the United States Intellectual Property rights of any
third party.
11. MARKETING BY OSA, INC.
11.1 Marketing. OSA, Inc. shall use its best efforts to
market and promote the Specialized Units and to maximize its sales,
leases or licenses of Specialized Units.
11.2 [Intentionally deleted.]
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11.3 Information Regarding Specialized Units. OSA, Inc. shall: (a)
provide pertinent information concerning the Specialized Units to prospective
Customers; (b) promptly present to TJA complaints concerning any Specialized
Unit which OSA, Inc. receives from Customers; (c) remain reasonably informed and
knowledgeable concerning the function, specifications and advantages of the
Specialized Units; (d) avoid deceptive, misleading or unethical practices that
are detrimental to TJA, Thermo Instrument and/or any one or more of the
Specialized Units; (e) make no false or misleading representations with regard
to TJA, Thermo Instrument and/or any one or more of the Specialized Units; (f)
not publish or employ, or cooperate in the publication or employment of, any
misleading or deceptive advertising material with regard to TJA, Thermo
Instrument and/or any one or more of the Specialized Units; and (g) make no
representations, warranties or guarantees to Customers or to the trade with
respect to the specifications, features or capabilities of any one or more of
the Specialized Units that are inconsistent with this Agreement and the various
Exhibits attached hereto or the warranties provided herein.
11.4 Specialized Unit Applications. It is understood and agreed by the
parties hereto that the identification of Customers to whom the Specialized
Units are to be sold, leased or licensed, and the selection of the commercial
applications for and environments in which any given Specialized Unit is to be
utilized, shall be determined exclusively by OSA, Inc. in the exercise of its
sole discretion. TJA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
NATURE THAT THE FUNCTIONALITY OF ANY SPECIALIZED UNIT IS ADEQUATE, SUITABLE OR
OTHERWISE APPROPRIATE, FROM A TECHNOLOGICAL STANDPOINT OR OTHERWISE, IN THE
CONTEXT OF ANY CURRENTLY CONTEMPLATED AND/OR FUTURE APPLICATIONS THEREFOR AND
HEREBY DISCLAIMS ALL LIABILITY ARISING FROM OR IN CONNECTION WITH THE ADEQUACY,
SUITABILITY OR APPROPRIATENESS OF SUCH FUNCTIONALITY FOR ANY SUCH APPLICATIONS.
The foregoing provisions of this Section 11.4 are not intended to limit the
express terms of the warranty set forth in clause (b) of Section 10.1.1 above
regarding substantial conformance of each Specialized Unit developed hereunder
with the applicable Specialized Unit Specification during the Warranty Period.
12. CUSTOMER AGREEMENT.
No Specialized Unit shall be sold, leased, licensed or sublicensed by
OSA, Inc. to any Customer until such time as a form of customer agreement
mutually acceptable to OSA, Inc. and TJA, in the exercise of each party's
reasonable discretion, has been
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created (the "Customer Agreement"). OSA, Inc. agrees to cause each Customer to
execute a Customer Agreement prior to the delivery to such Customer of any
Specialized Unit hereunder. Upon execution of this Agreement, OSA, Inc. and TJA
shall commence and thereafter diligently continue to negotiate in good faith the
form of such Customer Agreement.
13. INDEMNIFICATION.
13.1 By OSA, Inc. Subject to the limitations in Section 10.2.3, OSA,
Inc. shall indemnify, defend and hold harmless TJA, its parent, subsidiaries and
affiliates (including without limitation Thermo Instrument and Nicolet), from
and against any and all losses, damages, liabilities and expenses (including,
without limitation, reasonable attorneys' fees and disbursements and court
costs) incurred by them in connection with third party claims or suits, whether
based in xxxxxxx, xxxxxxxx, xxxx, xxxxxx liability or breach of warranty or
otherwise, to the extent arising, or alleged by said third party claimant to
arise, by reason of (a) the negligence or willful misconduct of OSA, Inc., its
parent, affiliates, employees, agents, representatives or contractors, (b) false
or misleading statements made by OSA, Inc., its parent, affiliates, employees,
agents, representatives or contractors, to any persons including, but not
limited to, Customers, (c) infringement by the OSA, Inc. Software of any patent,
copyright, trademark, trade secret or any other proprietary right of any third
party, (d) use of any Specialized Unit in combination with equipment or software
external to the Specialized Unit and not manufactured by TJA or Thermo
Instrument, or any parent, subsidiary or affiliate of either, which use is not
approved in writing by TJA in an instrument expressly referencing this Section
13.1(d) and signed by the President of TJA , (e) TJA's compliance with designs,
specifications or instructions of OSA, Inc., or of any Customer made with OSA,
Inc.'s approval, (f) use of any Specialized Unit in an application or
environment for which the Specialized Unit design and/or the Specialized Unit
Specification applicable thereto is or are inadequate, unsuitable or otherwise
inappropriate, (g) use of any Specialized Unit which has been modified pursuant
to the provisions of Article 6 above or otherwise, (h) repair, maintenance or
installation of, or other tampering with, any Specialized Unit by anyone other
than TJA or its affiliates, employees, contractors or agents unless approved by
TJA, which approval must be evidenced by an instrument expressly referencing
this Section 13.1(h) and signed by the President of TJA, (i) infringement of any
Intellectual Property rights of any person or entity by OSA, Inc.'s Technical
Contributions or Marks or (j) TSI's breach of any
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representation or warranty under Section 17.16.1 below; provided, however, that
OSA, Inc. shall have no liability under this Section 13.1 to the extent any
third party claims or suits are attributable to the negligence or willful
misconduct of TJA or its parent, affiliates, employees, agents, representatives
or contractors.
13.2 By TJA. Subject to the limitations in Section 10.2.1(b), TJA shall
indemnify, defend and hold harmless OSA, Inc., its parent, subsidiaries and
affiliates (including without limitation Top Source and UTG), from and against
any and all losses, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees and disbursements and court costs)
incurred by them in connection with third party claims or suits, whether based
in xxxxxxx, xxxxxxxx, xxxx, xxxxxx liability or breach of warranty or otherwise,
to the extent arising, or alleged by said third party claimant to arise, by
reason of (a) the negligence or willful misconduct of TJA, its parent,
affiliates, employees, agents, representatives or contractors, (b) false or
misleading statements made by TJA, its parent, affiliates, employees, agents,
representatives or contractors, to any persons including, but not limited to,
Customers, (c) infringement by the Instrument Software of any patent, copyright,
trademark, trade secret or any other proprietary right of any third party, (d)
use of any Specialized Unit in combination with equipment or software external
to the Specialized Unit and manufactured by TJA or Thermo Instrument, or any
parent, subsidiary or affiliate of either, or otherwise used with TJA's written
approval, which approval must be evidenced by an instrument expressly
referencing this Section 13.2(d) and signed by the President of TJA, (e) OSA,
Inc.'s compliance with designs, specifications or instructions of TJA, (f)
repair, maintenance, installation or reinstallation of any Specialized Unit by
TJA or its parent, affiliates, employees, agents, representatives or
contractors, (g) infringement of any Intellectual Property rights of any person
or entity by TJA's Technical Contributions or Marks, (h) OSA, Inc.'s or any
Customer's compliance with written safety or training materials provided by TJA
or (i) Thermo's breach of any representation or warranty under Section 17.16.2
below; provided, however, that TJA shall have no liability under this Section
13.2 to the extent any third party claims or suits are attributable to the
negligence or willful misconduct of OSA, Inc. or its parent, affiliates,
employees, agents, representatives or contractors.
13.3 Procedures. The party seeking indemnification under this
Article 13 ("Indemnified Party") shall provide prompt written
notice of any claim to the party from whom indemnification is
sought hereunder ("Indemnifying Party"). The Indemnifying Party
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shall have the right, at its option, to assume the defense of any claim for
which indemnification is sought. In the event that the defense of any claim has
been assumed by the Indemnifying Party, the Indemnified Party shall have the
right to participate in any such proceeding with counsel of its own choice and
at its own expense.
13.4 Terminology. It is understood and agreed that any time the term
"contractor(s)" is used in this Agreement, the same shall be deemed to refer to
and include subcontractor(s) as well.
14. CONFIDENTIALITY.
14.1 Proprietary Information. All of the parties to this Agreement
(i.e., TJA, Thermo Instrument, OSA, Inc. and Top Source) agree and acknowledge
that in order to further the performance of this Agreement, they have disclosed
and will continue to disclose to each other certain information concerning their
respective Technical Contributions, proprietary inventions, confidential
know-how and trade secrets (including without limitation methods or concepts
utilized therein), marketing and sales, pricing (including without limitation
the pricing information contained in any Specialized Unit Addendum hereto),
software (including without limitation the Instrument Software and OSA, Inc.
Software), distributors, customers, business and other confidential information
(collectively, the "Proprietary Information"). The Proprietary Information shall
remain the sole property of the disclosing party (the "Owner"), and the
receiving party (the "Recipient") shall have no interest in, or rights with
respect to, such Proprietary Information except as set forth in this Agreement.
In addition, the terms of this Agreement shall constitute Proprietary
Information of all parties.
14.2 Protection. The Recipient agrees to use the same degree of care to
protect the confidentiality of all Proprietary Information, designated as such
in writing by the Owner thereof, as a reasonable man would utilize in protecting
his own similar proprietary information, including without limitation agreeing:
14.2.1 Except as specifically authorized by this Agreement,
not to permit the disclosure, use, copying, display, loan, publication, transfer
of possession (whether by sale, exchange, gift, operation of law or otherwise)
or other dissemination of or access to the Proprietary Information, in whole or
in part, to any third party without the prior written consent of the Owner,
except that such disclosure or access shall be permitted
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(a) to an employee, agent, representative, contractor or director of the
Recipient requiring access to the Proprietary Information in the course of his
or her duties in connection with the performance by the Recipient of its
obligations under this Agreement and who has agreed to maintain the
confidentiality of the Proprietary Information, (b) with respect to disclosure
only of Proprietary Information other than the contents of this Agreement, to a
Customer or other third party who has executed a Customer Agreement or (c) with
respect to disclosure of the contents of this Agreement only, to any party
providing, or considering providing, financing or capital to TSI in connection
with any Specialized Unit developed hereunder who has agreed, in writing, to
maintain the confidentiality of the contents of this Agreement;
14.2.2 To notify the Owner promptly, and in writing, of the
circumstances surrounding any suspected possession, use or knowledge of the
Proprietary Information or any part thereof at any location or by any person or
entity other than those whose access thereto is authorized by this Agreement and
take further steps as may reasonably be requested by the Owner to prevent or
remedy any such violation. The Owner shall be permitted to make reasonable
inquiries from time to time concerning the Recipient's compliance with the
provisions of this Article 14.
14.3 Exception. Nothing in this Article 14 shall restrict the Recipient
with respect to information or data, whether or not identical or similar to that
contained in the Proprietary Information, if such information or data (a) was
rightfully possessed by the Recipient before it was received from the Owner; (b)
is independently developed by or for the Recipient without derivation from or
reference to the Owner's information or data; (c) is or becomes public or
available to the general public otherwise than through any act or default of the
Recipient; (d) becomes available to the Recipient from a source (other than the
Owner) who is not, to the Recipient's knowledge, bound by a confidentiality
obligation; or (e) is required by law or stock exchange rule to be disclosed. In
addition, nothing in this Article 14 shall restrict the Recipient from
disclosing this Agreement (a) in connection with any legal action to enforce the
terms hereof or (b) in compliance with any valid subpoena, provided the
Recipient notifies the Owner prior to making any such disclosure and uses
reasonable efforts to obtain a protective stipulation of confidentiality with
respect to the subpoenaed information prior to disclosure of the same.
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14.4 Efforts to Maintain Confidentiality. The parties agree to take any
and all reasonable and appropriate measures to maintain confidentiality of all
Proprietary Information in conformance with the standards set forth in Section
14.2 above, such measures to include, without limitation, written agreements
with Customers and other users, purchasers, lessees, licensees and sublicensees
acknowledging the parties' proprietary rights, imposing confidentiality
obligations, and prohibiting internal inspection or reverse engineering of any
Specialized Unit, the Instrument Software or the OSA, Inc. Software. No
Specialized Unit may be transferred to any person without such an agreement.
Said agreements shall be in form acceptable to counsel for all parties, and
shall provide that the provisions thereof will survive the expiration or earlier
termination of this Agreement.
14.5 Obligation to Defend Proprietary Information. Each Owner agrees to
protect and defend its Proprietary Information against infringement to the
extent such Owner, in its sole discretion, considers appropriate. An Owner which
otherwise would elect not to protect and defend its Proprietary Information
against infringement shall be obligated to do so if the other party pays or
reimburses the Owner for all costs incurred therefor.
14.6 Injunctive Relief. Because the unauthorized use, transfer or
dissemination of the Instrument Software or OSA, Inc. Software or any
Proprietary Information provided by one party to the other may diminish
substantially the value thereof and of the Specialized Units and may irreparably
harm the offended party, if either party breaches the provisions of this Article
14 or the software licensing provisions of this Agreement, the other party shall
be entitled, without limiting its other rights or remedies, to seek equitable
relief, including, but not limited to, injunctive relief.
15. TERM AND TERMINATION.
15.1 Term and Non-Compete. This Agreement shall be for an initial term
(the "Term") commencing as of the effective date hereof and continuing through
and including December 31, 1997 (the "Term Expiration Date"), unless earlier
terminated in accordance with the provisions of this Article 15. This Agreement
shall automatically terminate as of the Term Expiration Date without the
requirement of notice or any other action on the part of either party hereto.
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15.2 Termination. This Agreement may be terminated as to all
parties prior to the Term Expiration Date:
15.2.1 By either party in the event of a material breach by
the other party of any of such other party's obligations under this Agreement,
which breach has not been cured within sixty (60) days following the date on
which the non-breaching party has given written notice to the breaching party
specifying the nature of the breach (or, if such breach is of a nature that it
cannot reasonably be cured within said sixty (60)-day period, if the breaching
party fails to commence to cure the same within said sixty (60)-day period or
thereafter fails to diligently prosecute such cure to completion);
15.2.2 By either party, effective immediately and without the
requirement of any notice, if the other party (a) files for or consents to a
general assignment for the benefit of creditors, (b) files a petition in
bankruptcy or liquidation, or is adjudicated bankrupt or insolvent or takes
similar actions under the laws of any jurisdiction for the general benefit of
creditors of an insolvent or financially troubled debtor or (c) is the subject
of an involuntary bankruptcy or insolvency proceeding which is not finally
dismissed within forty-five (45) days;
15.2.3 (i) Notwithstanding the provisions of Section 17.9
below, by TJA, upon not less than thirty (30) days' prior written notice, in the
event of a change in control, direct or indirect, of OSA, Inc. or Top Source
which has, or in the reasonable opinion of TJA could have, a material adverse
effect on the ability of TSI to perform its obligations hereunder or otherwise
on the consummation of the transactions contemplated herein; or
(ii) Notwithstanding the provisions of Section 17.9
below, by OSA, Inc., upon not less than thirty (30) days' prior written notice,
in the event of a change in control, direct or indirect, of TJA or Thermo
Instrument which has, or in the reasonable opinion of OSA, Inc. could have, a
material adverse effect on the ability of Thermo to perform its obligations
hereunder or otherwise on the consummation of the transactions contemplated
herein;
(iii) For purposes of this Section 15.2.3,
"control" shall mean ownership of greater than fifty percent (50%) of the
capital stock or the power to vote or direct the voting of sufficient securities
to elect a majority of the directors;
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15.3 Effect of Expiration or Termination. Upon expiration or the
effective date of termination of this Agreement for any reason, all rights and
obligations of the parties under this Agreement shall cease, except as follows:
15.3.1 In the event of the expiration of the Term of this
Agreement pursuant to Section 15.1 above, TJA shall complete the manufacture and
shipment of all orders in effect at the time of such expiration, and OSA, Inc.
shall be obligated to make payment for the same in accordance with the
applicable provisions of Article 8 above.
15.3.2 At the election of the party initiating termination in
the case of a termination pursuant to the provisions of Sections 15.2.1, 15.2.2
or 15.2.3 above TJA shall be obligated to complete the manufacture and shipment
of all (or such portion thereof as is indicated by the electing party under this
Section 15.3.2) orders in effect on the effective date of such termination, and
OSA, Inc. shall be obligated to make payment for the same in accordance with the
applicable provisions of Article 8 above.
15.3.3 OSA, Inc. shall, within ten (10) days after the
expiration or the effective date of any termination of this Agreement, provide
TJA with a list of all Customers for whom the Installation or Reinstallation of
a Specialized Unit has been performed by any person or entity other than TJA or
its designated subcontractor or agent. Such list shall specify the date of
Installation or Reinstallation, as the case may be, and the appropriate contact
with, and address of, each such Customer. TJA may, at its option, thereafter
communicate directly with such Customers.
15.3.4 Solely with respect to Specialized Units purchased from
TJA and paid for by OSA, Inc. hereunder, TJA shall continue, for a period of
five (5) years following the expiration or the effective date of any termination
of this Agreement, to provide maintenance services for such Specialized Units to
the extent required by, and in accordance with, the provisions of Section 9.2
above. TJA shall honor warranty coverage extended to Customers by OSA, Inc.,
provided that such coverage does not exceed the warranty coverage provided by
TJA pursuant to the terms of this Agreement. Solely with respect to Specialized
Units purchased from TJA and paid for by OSA, Inc. hereunder, and solely in
connection with the normal operation thereof, OSA, Inc. and Customers shall
have, without payment of additional consideration, the continuing perpetual and
worldwide non-exclusive right and license to use,
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license and, with respect to OSA, Inc. only, sublicense, "AS IS, WHERE IS", the
Instrument Software and other Technical Contributions of TJA and to install and
reinstall such Specialized Units with existing or new Customers, all without
restriction except (i) with respect to OSA, Inc., as provided in those Sections
of this Agreement which shall survive, in accordance with the provisions of
Section 15.4 below, the expiration or earlier termination of this Agreement, and
(ii) with respect to any Customer, as provided for the benefit of TJA in the
Customer Agreement.
15.3.5 The termination of this Agreement shall not affect OSA,
Inc.'s obligation to make payments to TJA which have become due and payable
hereunder on or before the effective date of such termination, nor release
either party from any liability to the other party which shall have accrued or
matured at the time such termination becomes effective.
15.3.6 On or before the expiration or effective date of
termination of this Agreement, OSA, Inc. shall remove all TJA Marks from
Specialized Units then in OSA, Inc.'s possession and thereafter shall cease all
use of the TJA Marks, including without limitation the use thereof in connection
with the sale, leasing, licensing, sublicensing, distribution or marketing of
Specialized Units (or related services); provided, however, that OSA, Inc.
agrees not to remove or obscure any notice of copyright, patent, trademark,
trade secret or restricted or limited rights which may be contained on the
Instrument Software and/or any of TJA's Technical Contributions.
15.4 Survival. Notwithstanding anything to the contrary contained
herein, the provisions of Section 3.1, Section 3.2 (as it relates to the OSA,
Inc. Marks), Section 4.1, Section 4.2.4, Section 4.3.2, Section 6, Section 7.7
(first sentence only), Sections 9.1.1 and 9.1.2 (solely with respect to OSAs
purchased from TJA and paid for by OSA, Inc. hereunder), Section 9.2 (solely to
the extent related to the obligations of TJA under Section 15.3.4), Article 10,
Article 13, Article 14, Article 15, and, to the extent related to the foregoing,
Articles 1, 16 and 17 (including without limitation Section 17.12 and 17.18),
shall survive any termination or expiration of this Agreement according to their
respective terms. Subject to the limitations of Article 10, an aggrieved party's
right to pursue all legal remedies for breach of contract or otherwise,
including without limitation damages related thereto, shall survive any
expiration or earlier termination of this Agreement unimpaired.
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16. COMPLIANCE WITH LAWS.
16.1 Compliance with Laws. OSA, Inc. and TJA shall comply with all
laws, legislation, rules, regulations, governmental requirements and industry
standards existing from time to time with respect to the Specialized Units
(including without limitation with respect to the sale, leasing, licensing and
sublicensing thereof) and performance of their respective obligations hereunder;
provided, however, that OSA, Inc. shall be solely responsible for ensuring that
the Specialized Units comply with all applicable governmental requirements and
industry standards imposed by any foreign country prior to any shipment of
Specialized Units to any such country. In the event that this Agreement is
required to be registered with any foreign governmental authority with respect
to Specialized Units purchased or sublicensed by OSA, Inc., OSA, Inc. shall
cause such registration to be made and shall bear any expense or tax payable in
respect thereof.
16.2 Customs and Local Taxes. TJA shall be responsible for
clearing Specialized Units purchased or sublicensed by OSA, Inc.
through customs in the country of destination, provided that OSA,
Inc. shall pay all applicable customs or import duties and all
applicable local taxes.
16.3 Export. TJA shall not export any Specialized Unit to any
jurisdiction without first obtaining all necessary export permits and
clearances, and in no event shall TJA export any Specialized Unit in violation
of any applicable law or regulation; provided that OSA, Inc. shall pay all
applicable permit and clearance fees. Any shipment of Specialized Units by OSA,
Inc. or any Customer subsequent to the initial shipment thereof by TJA (other
than returns to TJA of defective Specialized Units in accordance with the terms
of this Agreement) shall be the sole responsibility of OSA, Inc., and OSA, Inc.
shall comply with all import, export and other laws, rules, orders and
regulations, foreign or domestic, applicable to such re-shipment.
17. MISCELLANEOUS.
17.1 Governing Laws. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts (without
reference to the conflict of laws provisions thereof and excluding the United
Nations Convention on Contracts for the International Sale of Goods).
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17.2 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and shall not be
released, discharged, supplemented, interpreted, amended, varied, or modified in
any manner except by an instrument in writing signed by an authorized officer or
representative of each of the parties hereto. The exhibits following the
operative part of this Agreement shall be deemed to be incorporated in this
Agreement by this reference and the various other references contained herein.
The parties acknowledge that they are not entering into this Agreement on the
basis of any representations not expressly contained herein.
17.3 Waivers. No delay or omission on the part of any party to this
Agreement in requiring performance by any other party or in exercising any right
hereunder shall operate as a waiver of any provision hereof or of any right or
rights hereunder; and the waiver, omission or delay in requiring performance or
exercising any right hereunder on any one occasion shall not be construed as a
bar to or waiver of such performance or right on any future occasion.
17.4 Severability. If any provision of this Agreement shall for any
reason be held illegal or unenforceable, such provision shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect or impair the validity or enforceability of the remaining provisions of
this Agreement.
17.5 Force Majeure. Notwithstanding anything to the contrary contained
herein, Thermo shall not be liable in any respect for any delay in the
performance of any of its obligations under this Agreement to the extent such
delay shall have been due to acts of God, acts of terrorism, acts of OSA, Inc.
or Top Source, acts of civil or military authority, legal or regulatory changes,
fires, floods, epidemics, quarantine restrictions, war, armed hostilities,
riots, strikes, lockouts, accidents to machinery, delays in deliveries by TJA's
suppliers, delays in transportation not the fault of TJA or any other cause
beyond the reasonable control of Thermo. Notwithstanding anything to the
contrary contained herein, TSI shall not be liable in any respect for any delay
in the performance of any of its obligations under this Agreement (other than
obligations for the payment of money) to the extent such delay shall have been
due to acts of God, acts of terrorism, acts of TJA or Thermo Instrument, acts of
civil or military authority, legal or regulatory changes, fires, floods,
epidemics, quarantine restrictions, war, armed hostilities, riots, strikes,
lockouts or any other cause beyond the reasonable control of TSI.
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17.6 Captions. Article and Section headings are for
descriptive purposes only and shall not control or alter the
meaning of this Agreement.
17.7 Relationship of the Parties. The parties acknowledge that the
parties hereto are independent contractors and that OSA, Inc. will, on its own
behalf, solicit orders for Specialized Units only as an independent contractor.
The parties shall not represent themselves as partners, joint-venturers, agents,
employees or general representatives of each other for any reason. The parties
acknowledge that they shall have no right, power or authority to in any way
obligate each other to any contract or obligation other than the obligations
contained herein.
17.8 Notices. For the purposes of this Agreement, and for all
notices and correspondence hereunder, the addresses of the
respective parties are as follows:
If to TJA: Thermo Xxxxxxx Xxx Corporation
00 Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attn.: President
with a copy to: Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000 02109
Attn.: General Counsel
If to Thermo Instrument: Thermo Instrument Systems Inc.
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn.: President
with a copy to: Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn.: General Counsel
If to TSI (or one On-Site Analysis, Inc.
or more of OSA, 0000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Inc., and Xxxxxxx, Xxxxxxx 00000-0000
Top Source): Attn.: President
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with a copy to: Top Source Technologies, Inc.
0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx
00000-0000
Attn.: President
and: Cushing, Morris, Xxxxxxxxxx & Xxxxx
2110 Peachtree Center Xxxx Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxxx, Esq.
No change of address shall be binding upon the other party hereto until
written notice thereof is received by such party at the address shown herein.
All notices shall be in English and shall be effective upon receipt if delivered
personally or by courier or sent by facsimile, and three (3) business days after
mailing if sent by United States Mail.
17.9 Assignment and Corporate Reorganization. None of the parties shall
assign any rights or obligations under this Agreement without the prior written
consent of the other parties hereto. Notwithstanding the foregoing provisions of
this Section 17.9, but subject to the provisions of Section 15.2.3, any party
hereto ("Assignor") shall have the right to assign its rights and obligations
under this Agreement, without the prior written consent of any other party
hereto, (i) to a parent, subsidiary or affiliate of Assignor, (ii) in connection
with a merger, consolidation or combination or (iii) in connection with a sale
of substantially all of the assets of Assignor; provided that any such assignee
shall agree in writing to be bound by all obligations of Assignor hereunder, and
further provided that, unless released in writing by the other parties hereto,
Assignor shall continue to be bound by all of the terms and conditions of this
Agreement. Subject to the foregoing, this Agreement shall inure to the benefit
of and be binding upon any successor or permitted assign of such party.
17.10 Official Language. If this Agreement is translated
into another language besides English, the English language version
shall be the official version.
17.11 Currency. All prices are in currency of the United
States of America.
17.12 Guaranty.
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17.12.1 By Top Source. Top Source, as a material inducement to
Thermo to enter into this Agreement, hereby unconditionally guarantees, as and
for its own obligation, the full and prompt performance by OSA, Inc. of all of
its obligations under this Agreement. If any such obligations are not performed
when due, Top Source will immediately perform them, without resort by the
obligee to any other person or party. TJA and Thermo Instrument (or either of
them) may grant one or more extensions to fulfill such obligations or may
release or reach a compromise with any person liable for such obligations
without giving Top Source notice and without obtaining Top Source's consent.
This guaranty shall not be released, in whole or in part, by any action or thing
which might, but for this provision, be deemed a legal or equitable discharge of
a surety or guarantor, or by reason of any waiver, omission, action or failure
to act by TJA or Thermo Instrument (whether or not Top Source's risk is varied
or increased or its rights or remedies are affected thereby), or by reason of
any further dealings between TSI and TJA or Thermo Instrument.
17.12.2 By Thermo Instrument. Thermo Instrument, as a material
inducement to TSI to enter into this Agreement, hereby unconditionally
guarantees the full and prompt performance by TJA of all of its obligations
under this Agreement. If any such obligations are not performed when due, Thermo
Instrument will immediately perform them, without resort by the obligee to any
other person or party. TSI may grant one or more extensions to fulfill such
obligations or may release or reach a compromise with any person liable for such
obligations without giving Thermo Instrument notice and without obtaining Thermo
Instrument's consent. This guaranty shall not be released, in whole or in part,
by any action or thing which might, but for this provision, be deemed a legal or
equitable discharge of a surety or guarantor, or by reason of any waiver,
omission, action or failure to act by TSI (whether or not Thermo Instrument's
risk is varied or increased or its rights or remedies are affected thereby), or
by reason of any further dealings between TJA or Thermo Instrument and TSI.
17.13 Remedies Cumulative. Any and all rights and remedies which any
party may have under this Agreement, at law or in equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or more of all
such rights and remedies may be exercised at the same time insofar as permitted
by law.
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17.14 Authority. The individuals executing this Agreement hereby
represent and warrant that they are empowered and duly authorized to so execute
this Agreement on behalf of the parties they represent.
17.15 Nicolet. Notwithstanding anything contained in this Agreement, it
is expressly understood and agreed by all parties hereto that in no event shall
Nicolet be deemed to be a party to this Agreement or otherwise be subject to or
bound in any way by any of the terms or provisions contained herein, including
without limitation the confidentiality obligations set forth in Article 14. It
is further expressly understood and agreed by all parties hereto that,
notwithstanding any provision in this Agreement to the contrary, TJA and Thermo
Instrument shall each have the right, in connection with the performance of
their respective obligations under this Agreement or the consummation of the
transactions contemplated hereby, to convey, disclose or disseminate to any
officer, employee, representative or agent of Nicolet (acting in his or her
capacity as such) any Proprietary Information of OSA, Inc. or Top Source
(including without limitation any Intellectual Property of either such party),
regardless of whether Nicolet, or any such officer, employee, representative or
agent of Nicolet , shall have theretofore agreed to maintain the confidentiality
of such Proprietary Information, and such conveyance, disclosure or
dissemination shall in no event be deemed to constitute a breach by TJA or
Thermo Instrument of any of the provisions of this Agreement, including without
limitation those contained in or Article 14 above.
17.16 Representations and Warranties.
17.16.1 By OSA, Inc. and Top Source. OSA, Inc. and Top
Source each warrant and represent that (i) it has full right,
power, capacity and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby;
(ii) the execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby, will not
(A) conflict with or result in a violation, breach, termination or
acceleration of, or default under (or would result in a violation,
breach, termination, acceleration or default with the giving of
notice or passage of time, or both), any of the terms, conditions
or provisions of the Articles of Incorporation or Bylaws of OSA,
Inc. or Top Source, as amended, or of any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to
which OSA, Inc. or Top Source is a party or by which either of
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them, or any of their respective properties or assets, may be bound or affected,
or (B) result in the violation of any order, writ, injunction, decree, statute,
rule or regulation applicable to OSA, Inc. or Top Source, or their respective
properties or assets; (iii) this Agreement is enforceable in accordance with its
terms; and (iv) no consent or approval by, or notification to or filing with,
any court, governmental authority or third party is required in connection with
the execution, delivery and performance of this Agreement by OSA, Inc. and Top
Source, or the consummation of the transactions contemplated hereby. Without in
any way limiting the foregoing, OSA, Inc. warrants and represents that it owns
or otherwise has the right to use all Technical Contributions contributed by
OSA, Inc. (as referenced in Section 1.11 above) in the development of the OSA
and any Specialized Unit hereunder and has obtained all consents, approvals and
authorizations required for the use of such Technical Contributions by TSI and
Thermo in connection with the performance of this Agreement and the consummation
of the transactions contemplated hereby. Each of the foregoing representations
and warranties shall also be true and correct as though made on and as of the
date of execution of each Specialized Unit Addendum hereunder.
17.16.2 By TJA and Thermo Instrument. TJA and Thermo
Instrument each warrant and represent that (i) it has full right, power,
capacity and authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby; (ii) the execution, delivery
and performance of this Agreement, and the consummation of the transactions
contemplated hereby, will not (A) conflict with or result in a violation,
breach, termination or acceleration of, or default under (or would result in a
violation, breach, termination, acceleration or default with the giving of
notice or passage of time, or both), any of the terms, conditions or provisions
of the Articles of Incorporation or Bylaws of TJA or Thermo Instrument, as
amended, or of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which TJA or Thermo Instrument is a party or by
which either of them, or any of their respective properties or assets, may be
bound or affected, or (B) result in the violation of any order, writ,
injunction, decree, statute, rule or regulation applicable to TJA or Thermo
Instrument, or their respective properties or assets; (iii) this Agreement is
enforceable in accordance with its terms; and (iv) no consent or approval by, or
notification to or filing with, any court, governmental authority or third party
is required in connection with the execution, delivery and performance of this
Agreement by TJA and Thermo Instrument, or the consummation of the transactions
contemplated hereby. Without in any way limiting the
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foregoing, TJA warrants and represents that it owns or otherwise has the right
to use all Technical Contributions contributed by TJA (as referenced in Section
1.11 above) in the development of the OSA and any Specialized Unit hereunder and
has obtained all consents, approvals and authorizations required for the use of
such Technical Contributions by Thermo and TSI in connection with the
performance of this Agreement and the consummation of the transactions
contemplated hereby. Each of the foregoing representations and warranties shall
also be true and correct as though made on and as of the date of execution of
each Specialized Unit Addendum hereunder.
17.17 Prevailing Party. If any action at law or in equity is brought to
enforce or interpret the provisions of this Agreement, the prevailing party in
such action shall be entitled to reimbursement of the reasonable attorneys' fees
and disbursements and court costs incurred by said prevailing party in
connection with such action.
17.18 General Provisions Regarding Warranties. Subject to the
provisions of Sections 15.2.3 and 17.9 above, the warranties provided to OSA,
Inc. hereunder shall continue to be enforceable by OSA, Inc., in accordance with
the terms of this Agreement, regardless of the transfer by OSA, Inc. of title to
the products to which such warranties relate in the ordinary course of marketing
the same as contemplated by this Agreement. Subject to the provisions of
Sections 15.2.3 and 17.9 above, the warranties provided to TJA hereunder shall
continue to be enforceable by TJA, in accordance with the terms of this
Agreement, regardless of the transfer by TJA of title to the products to which
such warranties relate in the ordinary course of marketing the same as
contemplated by this Agreement.
18. "U" UNIT AGREEMENT.
Reference is hereby made to that certain Agreement dated as of March 3,
1995 by and between TJA and Thermo Instrument and OSA, Inc. and Top Source (the
"'U' Unit Agreement"). It is understood and agreed that each purchase by OSA,
Inc. of a Specialized Unit hereunder shall also be deemed to constitute a
purchase by OSA, Inc. of an OSA for purposes of Sections 15.1 and 15.2.6 of the
"U" Unit Agreement. Notwithstanding anything to the contrary contained in the
"U" Unit Agreement, including without limitation the provisions of Sections 5.2
and 15.1 thereof, it is further understood and agreed that the performance by
either party of its obligations under this Agreement will not constitute a
default by
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such party under the "U" Unit Agreement. The "U" Unit Agreement is hereby
ratified and confirmed in its entirety, and, except to the extent expressly
provided in this Article 18, nothing contained herein shall be deemed to
constitute an amendment to or modification of the "U" Unit Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement under seal as of the day and year first above written.
TJA:
THERMO XXXXXXX XXX CORPORATION
By: /s/ Xxxx Xxxxx
Title: Sr. Vice President
Witness/
Attest:
Title:
[CORPORATE SEAL]
THERMO INSTRUMENT:
THERMO INSTRUMENT SYSTEMS INC.
By: /s/ Xxxx Xxxxx
Title: Sr. Vice President
Witness/
Attest:
Title:
[CORPORATE SEAL]
[Signatures Continued on Next Page]
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OSA, INC.:
ON-SITE ANALYSIS, INC.
By: /s/ Xxxxxx Xxxxxx 12/28/95
Title: CEO
Witness/
Attest: /s/ Xxxx X. Xxx
Title: Corporate Administrator
[CORPORATE SEAL]
TOP SOURCE:
TOP SOURCE TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx 12/28/95
Title: CEO
Witness/
Attest: /s/ Xxxx X. Xxx
Title: Corporate Administrator
[CORPORATE SEAL]
AA953250027
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LIST OF EXHIBITS
Exhibit A "U" Specification
Exhibit B Site Survey Report
Exhibit C Customer Site Specifications for
Installation
AA953250027
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