EXHIBIT 10.15
OEM AGREEMENT BY AND BETWEEN
CALCOMP TECHNOLOGY, INC.
AND
COPYER CO., LTD
OEM AGREEMENT
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS ........................................ 1
ARTICLE II - TERM OF AGREEMENT ................................. 1
ARTICLE III - INTENTIONALLY DELETED ............................ 1
ARTICLE IV - PURCHASE, AND SALE ................................ 2
ARTICLE V - PRODUCT PRICES, PAYMENT AND TAXES .................. 2
ARTICLE VI - ORDERING AND SCHEDULING ........................... 2
ARTICLE VII - CANCELLATION OF ORDERS ........................... 3
ARTICLE VIII - PARTS .......................................... 3
ARTICLE IX - PACKING AND SHIPPING .............................. 3
ARTICLE X - INSPECTION, TESTING AND QUALITY REQUIREMENTS ....... 4
ARTICLE XI - DOCUMENTATION, TRAINING AND SUPPORT ............... 5
ARTICLE XII - WARRANTIES ....................................... 5
ARTICLE XIII - CHANGES ......................................... 6
ARTICLE XIV - PRODUCT IMPROVEMENTS ............................. 6
ARTICLE XV - PRODUCT DISCONTINUANCE ............................ 6
ARTICLE XVI - INTENTIONALLY DELETED ............................ 6
ARTICLE XVII - FORCE MAJEURE ................................... 6
ARTICLE XVIII - INFRINGEMENT ................................... 7
ARTICLE XIX - PROPRIETARY INFORMATION .......................... 8
ARTICLE XX - DEFAULT/LIMITATION OF LIABILITY/LICENSE RIGHTS .... 8
ARTICLE XXI - NOTICES .......................................... 8
ARTICLE XXII - PRODUCT LIABILITY/INSURANCE ..................... 9
ARTICLE XXIII - RIGHTS TO SELL AND DISTRIBUTE PRODUCT .......... 9
ARTICLE XXIV - GENERAL ......................................... 9
EXHIBIT TITLE ARTICLE
A PRODUCT SPECIFICATIONS .................... I,II,III,X,XII
B UNIT PRICE SCHEDULE .................................... V
C SPARE PARTS .................................. I,V,VI,VIII
D PACKAGING SPECIFICATIONS .............................. IX
E QUALITY CONTROL AGREEMENT .............................. X
F QUALITY AUDIT/FINAL ACCEPTANCE TEST .................... X
G DOCUMENTATION ..................................... III,XI
H TRAINING AND SUPPORT .................................. XI
I LICENSE COST .......................................... XI
OEM AGREEMENT
This Agreement, which includes all Exhibits referred to herein, is entered into
by and between CalComp Technology. Inc. including its subsidiaries and
affiliates, having a place of business at ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "CalComp"), and Copyer Co. Ltd, having a place of
business at ▇-▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ (hereinafter
"Copyer").
R E C I T A L S
WHEREAS CalComp has obtained evaluation units of the Products, as hereinafter
defined, from Copyer for evaluation.
WHEREAS Copyer has represented its ability to manufacture and supply CalComp
with production quantities of the products.
WHEREAS CalComp needs a dependable source for the Products and related services
as described herein and is willing to obtain the Products from Copyer, in
accordance with the provisions hereof.
NOW THEREFORE, in consideration of the premises and the covenants set forth
herein and intending to be legally bound, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
Words shall have their normally accepted meanings as employed in this Agreement.
The terms "herein" and "hereof", unless specifically limited, shall have
reference to the entire Agreement. The word "shall" is mandatory, the word
"may" is permissive, the word "or" is not exclusive, the words "includes" and
"including" are not limiting and the singular includes the plural and vice
versa. The following terms shall have the described meanings:
"Products" means the devices described in Exhibit A (Product Specifications)
including related software and the Parts listed in Exhibit C (Spare Parts).
"Parts" means the service parts and consumables described in Exhibit C (Spare
Parts). The service parts are listed in Exhibit C Section A and the consumables
are listed in Exhibit C Section B.
"Unit" means an individual device described in the Product Specifications.
"Finished Unit" means a unit of CalComp's plotter product produced by
integrating an image controller developed by CalComp and other materials not
supplied by Copyer, excluding tubing systems, with the engine Unit provided by
Copyer.
ARTICLE II - TERM OF AGREEMENT
The term of this Agreement shall commence on the first day of the month
following the date of signing by the last party to sign and shall continue in
full force and effect for a period of three (3) years from such date, unless
extended or earlier canceled as authorized hereunder. Either party has the
right to extend the term for successive one year periods by giving written
notice to the other party at least ninety (90) days prior to the end of the
initial period or any extension thereof.
ARTICLE III - INTENTIONALLY DELETED
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ARTICLE IV - PURCHASE, AND SALE
CalComp shall purchase Units of such Product from Copyer during the term of this
Agreement and may purchase Parts and obtain services on the terms and conditions
set forth herein; and Copyer shall sell such Products and furnish the services
in accordance with these terms and conditions.
ARTICLE V - PRODUCT PRICES, PAYMENT AND TAXES
A. The prices for Units purchased under this Agreement shall be as indicated
in Exhibit B (Unit Price Schedule) and the prices for Parts shall be as
indicated in Exhibit C. The pricing detailed in Exhibit B (Unit Price
Schedule) shall remain fixed for a period of each twelve (12) months from
CalComp's first production shipment of mass production units. Three (3)
months prior to the end of such twelve (12) month period the parties
shall meet to agree the pricing to apply to Products shipped from Copyer
for the following twelve (12) month period.
B. Payment shall be made in Japanese Yen thirty (30) days after the date of
the ▇▇▇▇ of Lading for Products. Each invoice shall include the Order
number and CalComp's & Copyer's part number of each item shipped or the
service supplied, shipment or supply date, destination address, and
identification of any optional features.
C. With the exception of the items shown in Exhibit C (Spare Parts), the
Products purchased hereunder and Finished Unit will be resold under
CalComp's trade name or trademark. Copyer therefore shall not include in
the prices any amount for taxes upon the sale of Products to CalComp. All
other taxes upon the Products or sale thereof to CalComp which Copyer is
required to pay or collect are included in the prices. Upon request,
CalComp will provide Copyer with an exemption certificate for the resale
of Products as such or as a part of another product or system.
ARTICLE VI - ORDERING AND SCHEDULING
A. The Products, and services when applicable, shall be ordered by purchase
orders and change orders thereto (hereinafter individually or
collectively "Orders") issued by CalComp's procurement department
personnel. Each Order shall specify quantity, configuration, prices,
delivery week dates (detailed on the Order Tracking Sheet described
below) and destination, or service as applicable, and other such matters
necessary for the individual transaction to be adequately described. All
Orders, including those issued by CalComp in anticipation of the signing
of this Agreement, and related instructions which are consistent with the
terms of this Agreement are deemed accepted by Copyer upon receipt
thereof and are covered hereby.
B. Copyer shall acknowledge receipt of each Order within ten (10) days after
receipt and shall deliver ordered Units and Parts in accordance with the
delivery date indicated on the Order Tracking Sheet (herein after "OTS")
provided such dates are consistent with the Order lead times, which are
four (4) months for Units, four (4) months for the consumables listed in
Exhibit C section B and service parts listed in Exhibit C section A,
excluding initial provisioning and emergency Parts for which the lead
time shall be stated in Exhibit C (Parts). Copyer shall make reasonable
effort, however, to comply with CalComp's Orders which request delivery
of Units in less than the lead time the aforementioned lead times.
C. With respect to Units and Part Exhibit C section C, prior to the tenth
(10) day of each month, CalComp shall send Copyer and OTS covering Units
for the next six (6) calendar months. The first four (4) month of the
deliveries shown on the OTS shall represent a firm purchase commitment
not subject to withdrawal except as provided herein. The remaining
period of the OTS shall represent a forecast of CalComp's anticipated
purchases for such period, but is not a purchase commitment. Copyer shall
acknowledge receipt of each OTS within ten (10) days after receipt
thereof and simultaneously inform
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CalComp of any problems that Copyer believes it may have in complying
therewith.
D. CalComp shall maintain a reasonable level of Finished Units in stock
such as to support its sales activities. Periodically at its discretion
CalComp may elect to share such stock data with Copyer for the purposed
of manufacturing planning.
E. This Agreement states the terms and conditions applicable to the Orders
and replaces in their entirety both the pre-printed terms and conditions
appearing on CalComp's Order forms and any additional terms or changes
appearing on Copyer's acknowledgment of the Orders.
ARTICLE VII - CANCELLATION OF ORDERS
A. Without relieving CalComp of its obligations under its purchase
commitment detailed under Exhibit B (Unit Price Schedule), CalComp may
cancel any Order for Products issued hereunder, by giving written notice
to Copyer prior to the weekly delivery date stated on the OTS, subject
only to payment of a cancellation fee, which shall be limited to a
percentage of the Product price as follows:
NOTICE OF CANCELLATION
DAYS PRIOR TO CANCELLATION FEE
SCHEDULED SHIP DATE (Maximum)
------------------- --------------
121 days or more 0%
91-120 days 20%
90 days or less 25%
C. Each month CalComp shall be allowed to adjust its forecast for Product
as indicated in the OTS by up to 30% from the previously indicated
quantity in the OTS for the prior month.
ARTICLE VIII - PARTS
A. Copyer shall receive emergency Parts Orders for "site down" situations
according to the conditions indicated in Exhibit C (Spare Parts).
Copyer shall timely inform CalComp of shipping information such as a
carrier, routing, air or waybill number, etc.
B. In consideration of CalComp's purchase of Products during the term of
this Agreement, CalComp shall have the right to purchase and Copyer
shall be obligated to sell Parts, as provided in Exhibit C (Spare
Parts), in such quantities as CalComp may need from Copyer, to support
and maintain the Products until five (5) years after the date of the
last delivery of Units hereunder. Thereafter Copyer shall continue to
supply Parts and services at the prices Copyer may quote until Copyer
notifies CalComp that Copyer intends to discontinue supplying any Parts,
whereupon CalComp shall have forty five days to place a final Order for
such Parts to be delivered within six months after CalComp's Order.
ARTICLE IX - PACKING AND SHIPPING
A. All Products shall be packed as set forth in Exhibit D (Packaging
Specifications). A packing list shall accompany each shipment
indicating the Products included therein. CalComp's Order numbers, Unit
serial numbers and CalComp's & Copyer's Part numbers shall be indicated
on the packing list and on all shipping packages.
B. Shipment shall be F.O.B. port of export, Tokyo, Japan as indicated
herein accordance with CalComp's designated freight forwarder. Risk of
loss shall pass to CalComp at the F.O.B. point.
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However, if the Copyer fails to follow CalComp's routing instructions,
risk of loss shall remain with the Copyer.
C. Copyer reserves the right to decline to expedite or delay requests by
CalComp of more than one (1) month. CalComp reserves the right to
refuse to take delivery of Products which are delivered to the freight
forwarder by more than one (1) month in advance of the scheduled
delivery date. In such case CalComp may take early delivery and hold
Copyer's invoice for payment until the date it would be due if delivery
had been made according to schedule.
D. If Copyer is more than four (4) weeks late in delivering any Products,
CalComp may require Copyer to ship some or all of such Products by air
freight or other premium mode of transportation and to pay the cost
differential between the normal and premium mode.
E. If Copyer fails to deliver five percent (5%) or more of the Product
scheduled for shipment during the first twelve (12) months of mass
production shipments hereunder then CalComp may cancel some or all
Orders for such delinquent Products without liability but in any event
the canceled quantity shall be counted as though it had been accepted by
CalComp for the purpose of any volume commitments hereunder.
ARTICLE X - INSPECTION, TESTING AND QUALITY REQUIREMENTS
A. Copyer shall establish and maintain a quality control system in
accordance with its own Quality Control Agreement (QCA) Exhibit E
(Quality Control Agreement). Copyer shall, prior to shipment, inspect
and test each Product in accordance with Exhibit E. CalComp shall audit
Copyer's quality assurance on the first lot and review, statistical
process control, inspection and test procedures by observing tests being
conducted by Copyer or by reviewing Copyer's test documentation; and
CalComp may conduct its own source inspection and tests, as stated in
Exhibit F (Source/Receiving Inspection and Test Protocol). Records of
quality assurance inspection work performed on Products prior to
delivery under this Agreement shall be retained by Copyer and be
available to CalComp upon request. Nothing in this Agreement relating
to inspection and test procedures will be construed as diminishing
rights of CalComp under the warranty provisions hereof or as waiving,
altering or modifying CalComp's right of final inspection, acceptance or
rejection at its facility or installation site.
B. Copyer shall strive to achieve Drop Ship status in accordance with the
criteria of Paragraph 1.5 of Exhibit E (QCA) within six (6) consecutive
months of Product shipments after shipment of the first production unit.
If Copyer fails to achieve Drop Ship status within such period, then the
parties shall convene a meeting to discuss the appropriate action. The
same apply during any period in which Drop Ship status is suspended
because of Copyer's failure to continue to comply with the requirements
for such status.
C. If inspection and testing by CalComp within fifteen (15) working days
after receipt at CalComp reveals that any Product is defective with the
requirements of Exhibit A (Product Specifications), CalComp may request
Copyer to repair or replace the defective Product, as Copyer chooses,
within a reasonable time after CalComp's request. Alternatively,
CalComp may, without effecting the warranty provisions, with Copyer's
approval, rework any rejected Product at a mutually agreed expense.
Subject to the foregoing, Copyer shall be notified by CalComp and given
an opportunity to inspect at CalComp's factory subject to CalComp's
prior written consent.
D. CalComp may inspect and test Drop Shipped Products or lot quantities of
products accepted based on incoming inspection and testing after taking
delivery thereof. Such Products or lot quantities, upon CalComp's
inspection and test at its receiving location or installation site,
shall demonstrate a Critical Defect Free (CDF) rate, a Major Defect Free
(MADF) and a Minor Defect Free (MIDF) rates as define by Military
standard 105E. These rates shall be decided by the test method
described in Exhibit F
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(Quality Audit/Final Acceptance Test). Non-compliance with either the
CDF or the MADF specified rates shall be cause for Copyer to review its
manufacturing process for possible corrective action.
E. It is hereby understood that in the event of an amendment being
necessary to change the provisions of Exhibit E (Quality Control
Agreement), then such amendments may be executed by the Copyer Quality
Center.
ARTICLE XI - DOCUMENTATION, TRAINING AND SUPPORT
A. Copyer shall provide CalComp with one set of Part lists and Service
Manuals on a free of charge basis.
B. Copyer shall provide training and support as set forth in Exhibit H
(Training and Support) to enable CalComp to install, operate, test,
maintain and repair the Products.
C. Copyer grants CalComp the right and license, subject to the provisions
of Article XIX, Proprietary Information, to use, reproduce, modify,
translate and distribute the Documentation and training materials with
legally effective copyright notice on a chargeable basis so that CalComp
may make its own manuals. Such charges are detailed in Exhibit I
(License Cost).
ARTICLE XII - WARRANTIES
A. Copyer warrants that the Products shall:
1. Conform to Exhibit A (Product Specification).
2. Comply with safety and emission standards of the regulatory
agencies specified in Exhibit A (Product Specification).
3. Be free of defects in material and workmanship.
4. Be of new manufacture, merchantable and fit for use as a
computer peripheral.
5. Be free of any claim, lien or encumbrance not caused by CalComp.
B. In the event of a claim under the warranty provisions Copyer shall
provide replacement Parts, to CalComp free of charge (including freight
cost) for any Product found to be in breach of the provisions listed in
paragraph A (1) through (5) above, within one hundred and ten (110) days
after the ▇▇▇▇ of Lading date (herein after "B/L Date"). In the event
that a defect is not of a random nature but rather of an epidemic
nature, as described in paragraph C, then the warranty shall be extended
up to one (1) year after the B/L Date. The same shall apply to defects
in the Products or their manufacturing processes that were not
discernable by an inspection and test in accordance with the Acceptance
Test Procedure of Exhibit F at the time of acceptance. Copyer shall
provide the replacement Parts or an action plan within three (3) weeks
after receipt of CalComp's written report of defects.
In addition, in the event that the replacement Parts do not correct the
defect then CalComp and Copyer shall have the option to decide the
disposition of the defective Products. Such option shall only be
exercised after reasonable good faith discussions between CalComp and
Copyer.
C. In the event that CalComp uncovers what it believes is an epidemic
defect then CalComp shall provide Copyer data, in writing, in order to
convince Copyer that such a defect exists. In the event the parties
reach agreement as to the existence of an epidemic defect then Copyer
shall provide CalComp with Parts, complying with the warranty, on a
free of charge basis (including freight cost), necessary to fix all the
Products as the parties determine. In the event that CalComp needs to
effect repairs to Product
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already in the field then Copyer and CalComp shall determine the cost of
such field repairs and reach an agreement as to the apportionment of
such costs.
D. Warranty provisions shall not apply to the Parts listed in Exhibit C
Section B Consumables but shall apply to Section A Service Parts.
E. For countermeasures against epidemic defects of Product and Parts in the
field, CalComp may propose to Copyer that Copyer package replacement
Parts in the form of an FCN kit. In such case the cost apportionment of
such "kitting" (but not the cost of the parts included therein) shall
be discussed and agreed by the parties.
F. CalComp shall submit warranty claims to Copyer in writing, within a
reasonable time after becoming aware of any breach, indicating the
nature and date of the claim and serial number of the defective Unit or
Part.
H. Copyer shall give CalComp prompt notice of any warranty problem that it
becomes aware of and shall promptly correct such problems by making
necessary changes in the Products or their manufacturing process subject
to the provisions of Article XIII (changes).
ARTICLE XIII - CHANGES
Changes to the Products shall be conducted in accordance with the procedure
described in Exhibit E (Quality Control Agreement) Appendix 1.
ARTICLE XIV - PRODUCT IMPROVEMENTS
Copyer shall offer improved and new products which it intends to market that are
comparable in function and capability to the present Products for purchase by
CalComp as additions to or as substitutes therefor under the terms and
conditions of this Agreement. Copyer shall notify and make evaluation units of
improved and new products available to CalComp sufficiently in advance of
Copyer's planned initial shipment so as to afford CalComp reasonable opportunity
to determine whether it would be interested in such products.
ARTICLE XV - PRODUCT DISCONTINUANCE
Copyer shall provide four (4) months written notice to CalComp of its intention
to discontinue the manufacture of Product. The notice shall comprise the
Copyer's part number, Product description and Copyer's replacement part number,
where applicable. Such notices shall be sent to the CalComp contract
administrator.
By the tenth day of the last month of the notice period, CalComp may place
Orders for delivery of Product for the last three (3) months of the subsequent
six (6) months period. Such final Orders shall be deemed as being firm Orders,
within the allowable variance, and cannot be canceled.
ARTICLE XVI - INTENTIONALLY DELETED
ARTICLE XVII - FORCE MAJEURE
Neither Copyer nor CalComp shall be liable for any delay or failure of
performance hereunder due to any contingency beyond its control which renders
performance commercially unreasonable including, but not limited to an act of
God, war, mobilization, riot, strike, embargo, fire, flood, earthquake or power
failure. When only part of Copyer's or CalComp's capacity to perform is excused
under this Article, Copyer or CalComp must
6
allocate production and deliveries or receipt of deliveries among various
customers or suppliers then under contract for similar goods during the period
when Copyer or CalComp is unable to perform. The allocation must be effected in
a commercially fiar and equitable manner. When either Copyer or CalComp claims
excuse for nonperformance under this Article, it must give notice in writing to
the other party. When an allocation has been made, notice of the estimated
quota made available for CalComp or Copyer, as the case may be, must be given.
If the inability to perform continues for more than sixty (60) days, then
thereafter Copyer shall not be obligated to sell Products that it is unable to
deliver and CalComp shall not be obligated to purchase Products that it is
unable to receive or use due to contingencies that are beyond control, and no
Products are to be tendered by Copyer without the prior written consent of
CalComp. Further, CalComp shall have the right to cancel this Agreement with
respect to Product that Copyer is unable to deliver if Copyer's inability to
deliver does, or it becomes obvious that it will, continue for more than sixty
(60) days.
ARTICLE XVIII - INFRINGEMENT
A. Copyer represents that it is not aware of any trade secret
misappropriation or patent, copyright or mask work infringement or claim
thereof and has no reason to believe that any such misappropriation,
infringement or claim will occur with regard to the Products and
services delivered hereunder by Copyer or the use, sale or lease
thereof by CalComp or its subsidiaries or affiliates or their respective
distributors, dealers or customers.
B. Copyer shall indemnify and hold CalComp and its Subsidiaries and
affiliates and their respective distributors, dealers and customers
harmless from any and all loss, damage or liability (including
reasonable legal and other expenses and costs) that results from any
claim or action for infringement of a domestic or foreign patent,
copyright or mask work right or for misappropriation of any trade
secret or other intellectual property right with respect to the Products
and services furnished by Copyer under this Agreement; and Copyer shall
defend or settle any such claim or action at its own expense provided
that CalComp, upon becoming aware thereof, gives Copyer prompt written
notice of such action or claim made against CalComp or its subsidiaries
or affiliates or their respective distributors, dealers or customers.
CalComp shall have the right, at its own expense, to participate in
Copyer's defense of any such action through CalComp's own counsel. In
the event that Copyer fails, after notice, to adequately defend or
settle any action which it is obligated to defend or settle hereunder,
CalComp shall have the right to prosecute or defend such action and the
right to charge Copyer for the full cost and expense thereof (including
court costs and attorneys' fees) plus all awards and damages in such
action against CalComp.
CalComp shall indemnify and hold Copyer harmless from any and all loss,
damage or liability (including reasonable legal and other expenses and
costs) that results from any claim or action for infringement of a
domestic or foreign patent, copyright or mask work right or for
misappropriation of any trade secret or other intellectual property
right with respect to Copyer's modification of the Products to meet
design requirements of the Products and such infringement or
misappropriation would not have occurred but for Copyer's modification
to CalComp's design. Then CalComp shall defend or settle any such claim
or action at its own expense provided that Copyer, upon becoming aware
thereof, gives CalComp prompt written notice of such action or claim
made against Copyer. Copyer shall have the right, at its own expense, to
participate in CalComp's defense of any such action through Copyer's own
counsel. In the event that CalComp fails, after notice, to adequately
defend or settle any action which it is obligated to defend or settle
hereunder, Copyer shall have the right to prosecute or defend such
action and the right to charge CalComp for the full cost and expense
thereof (including court costs and attorneys' fees) plus all awards and
damages in such action against Copyer.
C. The foregoing states the entire liability of Copyer and CalComp for
infringement and misappropriation except where it is proven to be
willful in which case the other party shall have all available legal and
equitable remedies.
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ARTICLE XIX - PROPRIETARY INFORMATION
A. Each party hereto shall treat the other party's proprietary information
in accordance with the Mutual Non-Disclosure Agreement between the
parties dated April 26, 1993.
B. Neither party shall without prior written consent of both parties
disclose the existence of or any terms and conditions of this Agreement
or in any manner advertise or publish any information concerning this
Agreement, except as is necessary for its performance hereunder or as
may be required by law.
ARTICLE XX - DEFAULT/LIMITATION OF LIABILITY/LICENSE RIGHTS
A. If Copyer fails to render timely performance of its obligations with
regard to delivering Products and Documentation and furnishing support,
training and other services, CalComp may, upon giving Copyer written
notice of such failure, stop further shipments of such Products, in
whole or in part, and suspend performance of all or any portion of its
other obligations hereunder with regard to such Products until the
failure is cured. If Copyer does not cure the failure within twenty days
after receipt of the notice, CalComp shall have the right to cancel this
Agreement or any Orders, in whole or in part, with respect to Product
for which Copyer is in default or with respect to all Products,
effective immediately upon transmission of a written notice of
cancellation to Copyer; provided, however, that CalComp may require
Copyer to deliver some or all Products ordered prior to cancellation. In
addition, in the event of cancellation, CalComp shall have the right, in
order to satisfy its requirements for the Products, to purchase
equivalent products from any available source.
B. If CalComp fails to render timely performance of its obligations with
regard to ordering, forecasting, providing shipping routing instructions
and payment, Copyer may, upon giving CalComp written notice of such
failure, stop further shipments of such Products, in whole or in part,
and suspend performance of all or any portion of its other obligations
hereunder with regard to such Products until the failure is cured. If
CalComp does not cure the failure within twenty (20) days after receipt
of the notice, Copyer shall have the right to cancel this Agreement or
any Orders, in whole or in part, with respect to Product for which
CalComp is in default or with respect to all Products, effective
immediately upon transmission of a written notice of cancellation to
CalComp. Cancellation of this Agreement by Copyer shall not relieve
CalComp of its obligation to pay for product ordered.
C. Except as expressly stated herein, neither party shall be liable to the
other or to any third party for any incidental, indirect, special or
consequential damages resulting from a breach of its obligations
hereunder except in the case of material and willful breach.
ARTICLE XXI - NOTICES
All notices hereunder shall be in writing sent by certified mail, return
receipt requested, addressed to the party to be notified as follows:
To CalComp: Director, OEM Contracts
CalComp Technology, Inc
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: CalComp Corporate Secretary
CalComp Technology, Inc
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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To Copyer: Copyer Co. Ltd
▇-▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇.
or to such other address or addresses as either party may designate from time to
time.
ARTICLE XXII - PRODUCT LIABILITY/INSURANCE
Copyer shall indemnify and hold CalComp harmless from all cost, expense and
liability arising out of or related to death or injury to persons or property
resulting from any defect in design, manufacture, material or workmanship of the
Products. Copyer shall maintain, at its expense, during the term of this
Agreement, product liability insurance for the Products written by a responsible
insurer with limits of at least $1,000,000.00.
ARTICLE XXIII - RIGHTS TO SELL AND DISTRIBUTE PRODUCT
Copyer grants to CalComp an exclusive world-wide right to sell and distribute
the Finished Unit and a non-exclusive world-wide right to sell and distribute
Parts.
ARTICLE XXIV - GENERAL
A. This Agreement constitutes the entire agreement between the parties. No
waiver, consent, modification or change of terms of this Agreement shall
bind either party unless in writing signed by both parties, and then
such waiver, consent, modification, or change shall be effective only in
the specific instance and for the specific purpose given. Any provision
of an Order or acknowledgment thereof under this Agreement which is in
any way inconsistent herewith shall be deemed deleted. This Agreement is
entered into under the law of Japan.
B. The headings of the Articles in this Agreement are included for
convenience only and are not to be used in construing or interpreting
the Agreement.
C. If any part of this Agreement is declared by the Court of competent
jurisdiction to be invalid, such invalidity shall not affect the
enforceability of other parts not held to be invalid.
D. This Agreement may not be assigned by either party without the prior
written agreement of the other party and any purported attempt to do so
shall be null and void.
E. Upon termination or cancellation of this Agreement, Articles I, IV, V,
VI, VIII, IX, X, XI, XII, XIII, XVI, XVII, XVIII, XIX, XX, XXI, XXII,
XXIII and XXIV shall survive and continue to apply in accordance with
their terms.
9
Last Revised: August 22, 1996
IN WITNESS WHEREOF, the parties hereto have caused their respective authorized
representatives to execute and enter into this Agreement.
CALCOMP TECHNOLOGY, INC. COPYER CO., LTD.
BY: /s/ ▇▇▇▇ ▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________ _________________________
Signature Signature
Name: ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Time: President
Date: 9-13-96 Date: 9-19-96
______________________ ________________________
10
