CORPORATE PURCHASE AGREEMENT
CPCM 110.1
12/93
"Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [***], have been
separately filed with the Commission."
CORPORATE PURCHASE AGREEMENT
INDEX
ARTICLE 1 - DEFINITIONS............................................ 1
ARTICLE 2 - PURCHASE AND SALE...................................... 2
ARTICLE 3 - TERM OF AGREEMENT...................................... 2
ARTICLE 4 - PRICING, INVOICES AND PAYMENT.......................... 3
ARTICLE 5 - RESCHEDULING AND TERMINATION OF ORDERS................. 3
ARTICLE 6 - DELIVERY............................................... 4
ARTICLE 7 - QUALITY REQUIREMENTS................................... 4
ARTICLE 8 - PRODUCT ADDITIONS...................................... 4
ARTICLE 9 - SALE TO OTHERS......................................... 4
ARTICLE 10 - GENERAL PROVISIONS..................................... 5
ARTICLE 11 - ADDENDA/ATTACHMENTS.................................... 6
ARTICLE 12 - SURVIVAL OF PROVISIONS................................. 6
ARTICLE 13 - ENTIRE AGREEMENT....................................... 6
ATTACHMENT A - LIST OF PRODUCTS AND PRICES...............................A-1
ATTACHMENT B - SUBCONTRACTOR POLICY......................................B-1
ATTACHMENT C - INTERNATIONAL OFFSET CREDITS..............................C-1
ATTACHMENT D - PURCHASE ORDER TERMS AND CONDITIONS.......................D-1
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
CORPORATE PURCHASE AGREEMENT
Agreement No. [***]
This Agreement is entered into by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (hereinafter
"BUYER") , a Delaware corporation, with offices at Township Line and ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Multimedia Access Corp., Inc.
(hereinafter "SELLER") , a Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
--------
BUYER intends to purchase from SELLER certain products identified herein and
SELLER desires to manufacture and sell such products to BUYER.
In consideration of the mutual covenants herein contained and intending to be
legally bound by the provisions of this Agreement, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
Words, as employed in this Agreement, shall have their normally accepted
meanings. 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 meaning:
A. "PRODUCTS" shall mean the goods or articles identified in Attachment A.
B. "SUBSIDIARY" shall mean a corporation, company or other entity thirty
percent (30%) or more of whose control or outstanding voting shares or
securities are, now or hereafter, owned or controlled, directly or
indirectly, by BUYER.
1
ARTICLE 2 - PURCHASE AND SALE
-----------------------------
A. SELLER agrees to sell and deliver the PRODUCTS identified in Attachment A
in accordance with the terms and conditions of this Agreement.
B. It is agreed that SUBSIDIARIES may purchase PRODUCTS from SELLER at the
prices set forth in Attachment A.
C. The ordering of PRODUCTS shall be by means of individual purchase orders
and change orders thereto (hereinafter referred to collectively as
"Purchase Orders"), issued from time to time by BUYER'S procurement
personnel.
D. Notwithstanding Paragraph 25 of the terms and conditions on the reverse
side of BUYER'S Purchase Orders, a copy of which is set forth in Attachment
D hereto, any Purchase Orders issued by BUYER, including the terms in
Attachment D, and the additional provisions set forth in Attachment B
hereto, provide the terms and conditions governing the purchase of PRODUCTS
hereunder. In the event of a conflict between the provisions of the main
body of this Agreement (through Article 10 and the signature lines on Page
9), BUYER'S Purchase Orders, and the Attachment B terms, the order of
precedence shall be: (1) the provisions of the main body of this Agreement
and (through Article 10 and the signature lines on Page 9); (2) the
provisions set forth on the face of BUYER'S Purchase Orders; (3) the terms
and conditions stated on the reverse side of BUYER'S Purchase Orders; (4)
the Attachment B terms.
E. The Purchase Orders shall specify applicable prices, quantities, delivery
schedules, shipping instructions, destinations, applicable specifications,
any special requirements, and other similar matters which are necessary for
the individual transaction to be adequately described. The Purchase Orders
shall also include a reference to this Agreement Number.
2
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
ARTICLE 3 - TERM OF AGREEMENT
-----------------------------
A. Term: This Agreement shall continue in force for a fixed term of [***]from
the date hereof.
B. This Agreement shall cover all Purchase Orders issued during the term
hereof, with Delivery of PRODUCTS to be made in accordance with the
mutually agreed upon delivery schedules set forth in the Purchase Orders.
C. Termination for Convenience: This Agreement may be terminated by either
party for any reason or no reason effective as of the end of[***] or at any
time thereafter, by giving the other party written notice [***] in advance.
D. Termination for Cause: If either party defaults in the performance of any
provision of this Agreement, then the non-defaulting party may give written
notice to the defaulting party that if the default is not cured within
[***] the Agreement will be terminated. If the non-defaulting party gives
such notice and the default is not cured during the [***] period, then the
Agreement shall automatically terminate at the end of that period. Buyer
will have the additional termination rights with respect to each purchase
order as set forth in Paragraph 10 of Attachment D.
E. Termination for Insolvency: This Agreement shall terminate, (i) upon the
institution by or against Buyer of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of Buyer's debts,
(ii) upon Buyer's making an assignment for the benefit of creditors, or
(iii) upon Buyer's dissolution or ceasing to do business, provided Buyer
has not eliminated the applicable condition mentioned above upon [***]
advance written notice from Seller to do so.
F. Fulfillment of Orders upon Termination: Upon termination of this Agreement
for other than Buyer's breach, Seller shall continue to fulfill all orders
accepted by Seller prior to the date of termination.
3
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
G. Return of Materials. All Seller's trademarks, trade names, patents,
copyrights, designs, drawings, formulas or other data, photographs,
samples, literature, and sales aids of every kind, pertaining to Seller's
business or the Products, shall remain the property of Seller. Within
thirty (30) days after the termination of this Agreement, Buyer shall
prepare all such items in its possession for shipment, as Seller may
direct, at Seller's expense. Buyer shall not make, use, dispose of or
retain any copies of any of Seller's confidential items or information
which may have been entrusted to it. Effective upon the termination of this
Agreement, Buyer shall cease to use all trademarks, marks, and trade names
of Seller, except as required to sell remaining Products or complete
performance of this Agreement.
H. Limitation of Liability: In the event of termination by either party in
accordance with any of the provisions of this Agreement, neither party
shall be liable to the other, because of such termination, for
compensation, reimbursement or damages on account of the loss of
prospective profits or anticipated sales or on account of expenditures,
inventory (except as stated in Paragraph 3.C above), investments, leases or
commitments in connection with the business, or damage to a loss of
goodwill of Seller or Buyer. Termination shall not, however, relieve either
party of obligations incurred prior to the termination.
ARTICLE 4 - PRICING, INVOICES AND PAYMENT
-----------------------------------------
A. The unit prices for PRODUCTS are set forth in Attachment A and are firm and
fixed for the term of this Agreement subject to Paragraph 8 of Attachment
B.
B. Invoices for PRODUCTS may be submitted by SELLER when such PRODUCTS are
delivered. [***].
C. SELLER'S invoices shall include references to this Agreement number and to
Purchase Order numbers.
ARTICLE 5 - RESCHEDULING AND TERMINATION OF ORDERS
--------------------------------------------------
A. BUYER may, without incurring liability for any additional or increased
costs resulting therefrom, make changes in the quantities of PRODUCTS
scheduled to be delivered, and/or the delivery schedules therefore;
provided, however, BUYER gives SELLER written notice of such changes at
least:
1. Thirty (30) days prior to the Delivery date specified by the Purchase
Order for standard PRODUCTS; or
4
2. Ninety (90) days prior to the Delivery date specified on the Purchase
Order for nonstandard PRODUCTS.
B. BUYER may terminate Purchase Orders issued hereunder in accordance with
Paragraph 15, Termination, on BUYER'S Purchase Order; provided, however,
there shall be no charge for such termination if BUYER gives SELLER written
notice of termination at least:
1. Ninety (90) days prior to the Delivery date specified on the Purchase
Order for standard PRODUCTS; or
2. Ninety (90) days prior to the Delivery date specified on the Purchase
Order for nonstandard PRODUCTS.
ARTICLE 6 - DELIVERY
--------------------
Time is of the essence in the performance of this Agreement. Notwithstanding the
F.O.B. terms set forth in the Purchase Orders or in Attachment A, "Delivery"
shall occur when the PRODUCTS specified on the Purchase Order arrive at the
destination designated on the Purchase Order.
ARTICLE 7 - QUALITY REQUIREMENTS
--------------------------------
A. SELLER shall inspect and test PRODUCTS prior to delivery to BUYER to ensure
compliance with the specifications and drawings identified in Attachment A.
BUYER may test all PRODUCTS received from SELLER and may reject all
PRODUCTS that do not meet the requirements of said specifications and
drawings. BUYER may base acceptance or rejection of any PRODUCTS on
inspection. If such inspection or test by BUYER is made on SELLER'S
premises, SELLER shall furnish without additional charge all reasonable
facilities and assistance for the persons conducting such inspection or
test.
B. SELLER agrees to maintain a quality control system that shall eliminate
defects for all PRODUCTS to be delivered hereunder. Such system shall
include process controls that shall provide data for inspection and quality
verification of all critical parameters or operations on a regular and
continuing basis throughout the manufacturing process, for the term of this
Agreement.
5
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
C. SELLER agrees to demonstrate its quality assurance program and process
control program to BUYER'S quality, engineering and procurement personnel.
Included in this demonstration shall be a review of current process
controls and a mutual determination of any additional controls which may be
required to assure BUYER that control of the manufacturing process is being
maintained.
ARTICLE 8 - PRODUCT ADDITIONS
-----------------------------
It is agreed that additional PRODUCTS may be added to Attachment A during the
term of this Agreement, upon completion of negotiations between BUYER and SELLER
for such additions.
ARTICLE 9 - [***]
----------------
[***]
ARTICLE 10 - GENERAL PROVISIONS
-------------------------------
A. Notices/Administration
All notices shall be in writing and shall be sent by certified mail, return
receipt requested, or by wire communications (e.g., telex, twx, or
facsimile) to the respective Contract Administrator, at the addresses noted
below, or as the same may be changed from time to time by notice similarly
given. SELLER'S written notices applicable to Purchase Orders shall also be
sent to BUYER'S Procurement Department personnel at the addresses noted in
the Purchase Orders affected.
1. For BUYER
General Administration and liaison shall be performed by [***]
(referred to herein as "BUYER'S Contract Administrator") , ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
his/her designee or successor.
2. For SELLER
General Administration and liaison shall be performed by ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (referred to herein as "SELLER'S Contract Administrator"),
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or his /her designee or
successor.
3. BUYER'S Procurement Department personnel authorized by Subparagraph 4,
below, to issue Purchase Orders hereunder shall have authority, in
accordance with the terms and conditions of this Agreement, regarding
matters concerning the content of the Purchase Orders, regarding
BUYER'S testing, inspection, rescheduling and rejection of the PRODUCTS
and termination or cancellation of Purchase Orders; provided, however,
that
6
the exercise of BUYER'S rights of cancellation or termination of this
Agreement, whether for SELLER'S default or BUYER'S convenience, and the
exercise of other general rights of BUYER under this Agreement are
reserved to BUYER'S Contract Administrator.
4. SELLER shall be notified, from time to time, by BUYER'S Contract
Administrator of BUYER'S locations, divisions and SUBSIDIARIES
authorized to issue Purchase Orders pursuant to and in furtherance of
this Agreement and in accord with the provisions herein. BUYER'S
Contract Administrator, wherever located, shall at all times, be
authorized to place Purchase Orders under this Agreement.
B. Governing Law
This Agreement shall be construed, governed and interpreted in accordance
with the laws, but not the rules relating to the choice of law, of the
Commonwealth of Pennsylvania.
C. Captions/Headings
The captions and headings of the Articles, clauses and paragraphs contained
herein have been inserted for the convenience of the parties and shall not
be construed as a part of or modifying any provisions of this Agreement.
D. Severability
If any court should find any particular provision of this Agreement void,
illegal, or unenforceable, then that provision shall be regarded as
stricken from this Agreement and the remainder of this Agreement shall
remain in full force and effect.
E. Divestiture
SUBSIDIARIES, business units of BUYER, and business units of SUBSIDIARIES,
which are, in whole or in part, divested by BUYER or SUBSIDIARIES during
the term of this Agreement, may continue to purchase PRODUCTS under this
Agreement. The pricing set forth in Attachment A shall be applicable for
such purchases and all such purchases shall be contributory toward the
total volume purchased during the term of this Agreement.
7
F. Duty Drawback
SELLER shall advise BUYER if any portion of the PRODUCTS are imported into
the United States, as well as the country of origin of such imported items.
In the event BUYER advises SELLER that BUYER is exporting PRODUCTS to any
of the countries from which SELLER is importing, SELLER shall furnish BUYER
with proof of duties paid and execute and deliver to BUYER all documents
necessary for BUYER to claim a duty drawback of duties paid by SELLER.
ARTICLE 11 - ATTACHMENTS
------------------------
The attachments and other documents referred to in this Agreement and all
specifications, drawings and documents referenced therein are hereby
incorporated in and made part of this Agreement.
ARTICLE 12 - SURVIVAL OF PROVISIONS
-----------------------------------
In addition to the rights and obligations which survive as expressly provided
for elsewhere in this Agreement, the Articles and Attachments which by their
nature should survive, shall survive and continue after any termination or
cancellation of this Agreement.
ARTICLE 13 - ENTIRE AGREEMENT
-----------------------------
This Agreement states the entire agreement between the parties with respect to
the subject matter hereof and shall supersede all previous proposals,
negotiations, representations, commitments, writings, agreements, and other
communications, both oral and written, between the parties. This Agreement may
not be released, discharged, changed, or modified except by an instrument in
writing signed by a duly authorized representative of each of the parties.
8
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
This Agreement has been duly signed by authorized representatives of the parties
and shall become effective as of the latest date set forth below (the "Effective
Date").
Multimedia Access, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: [***]
------------------------- ----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ [***]
----------------------------- ----------------------------
(Printed/typed name) (Printed/ typed name)
Title: CFO Title: Sr. Procurement Specialist
----------------------- --------------------------
Date: 9/19/96 Date: Sept 17, 1996
----------------------- --------------------------
9
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
Corporate Purchase Agreement
----------------------------
Attachment A
------------
List of Products and Prices
---------------------------
Model Product # Ports List Discount
----- ------- ------- ---- --------
PC200 20 slot Rack-mount PC 192 [***] [***]
(Includes, PC, CD-ROM (Max)
keyboard, mouse, monitor,
Ethernet card.)
CN100 Coax Input Board 8 [***] [***]
(inc. cable adapter)
C0100 Coax Output Board 8 [***] [***]
(inc. cable adapter)
UN100 UTP Input Board 16 [***] [***]
(not including cable)
U0100 UTP Output Board 16 [***] [***]
(not including cable)
UT100 UTP Transceiver [***] [***]
(not including cable)
SS100 VBX Client Software [***] [***]
(per desktop)
SS200 VBX Server Software [***] [***]
(192 users max.)
CB100 Conference Kit [***] [***]
(not including Panasonic
4-way MUX)
Training/Installation
---------------------
12 Student Installer Training - 2 day [***] [***]
20 Students Support Training - 1 day [***] [***]
Installation [***] [***]
To the above will be added reasonable & actual travel expenses.
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
Software Services List Discount
----------------- ---- --------
Server Software Updates [***] [***]
(1st 12 Months after Installation)
Server Software Updates [***] [***]
Client Software Updates [***] [***]
(1st 12 Months after installation)
Client Software Updates [***] [***]
Discounts:
----------
The following discounts apply for the duration of this agreement, subject to the
terms of Paragraph 8. (a) of Attachment B.
Discount Category [***] [***]
Discount Category [***] [***]
Discount Category [***] [***]
All prices F.O.B. Dallas, TX.
Lead Times: 90 days from approval of order.
CORPORATE PURCHASE AGREEMENT
----------------------------
ATTACHMENT B
------------
SUBCONTRACTOR POLICY
--------------------
1. DEFINITIONS
(a) "Products" shall mean those products listed in Attachment A. Products
may be changed, abandoned or added by Seller, at its sole discretion,
provided that Seller does as generally for its other customers and that
Seller gives thirty (30) days prior written notice to Buyer. Seller
shall be under no obligation to continue the production of any Product,
except as provided herein.
(b) "Territory" shall mean sales to end-user account by Unisys or its
subsidiaries within the established territory of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and
its subsidiaries.
(c) "Software" shall mean all software, computer programs, source codes,
object codes, listings, and related materials in machine readable or
printed form (including firmware and all types of media) and all updates
and modifications thereto, that are included in the Product.
2. APPOINTMENT AND AUTHORITY OF BUYER
(a) Appointment: Subject to the terms and conditions set forth herein,
Seller hereby appoints Buyer as Seller's non-exclusive Buyer for the
Products in the Territory, and Buyer hereby accepts such appointment.
Seller shall retain the right to appoint other Buyers with
responsibility for sale of the Products in the Territory.
(b) Independent Contractors: The relationship of Seller and Buyer
established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed to:
(i) give either party the power to direct and control the day-to-day
activities of the other,
(ii) constitute the parties as partners, joint venturers, co-owners or
otherwise as participants in a joint or common undertaking, or
(iii) allow Buyer to create or assume any obligation on behalf of Seller
for any purpose whatsoever.
B-1
All financial obligations associated with Buyer's business are the sole
responsibility of Buyer. All sales and other agreements between Buyer and its
customers are Buyer's exclusive responsibility and shall have no effect on
Buyer's obligations under this Agreement. Buyer shall be solely responsible for,
and shall indemnify and hold Seller free and harmless from, any and all claims,
damages, or lawsuits for personal injury or damage to tangible property
(including Seller's attorneys' fees) arising solely out of the wrongful or
negligent acts of Buyer, its employees or its agents.
3. TERMS OF PURCHASE OF PRODUCT BY BUYER
(a) Purchase of Products Subject to Software License and Other Restrictions.
The sale of each Product to Buyer and the transfer of title for each
purchased Product to Buyer shall not include a sale of the Software or
transfer of its title but shall instead include a fully paid license for
Buyer to transfer the Software to its customers upon execution of a
Software license by Buyer's customers in accordance with the terms of
Subsection 7 (a) below. Seller shall retain full title to the Software
and all copies thereof, and Buyer and its customers may use the Software
only in accordance with the provisions of their executed Software
licenses. Neither Buyer nor its customers shall have any access to or
rights in the Software source codes except as provided under a separate
Source Code Agreement to be executed between Seller and the Buyer or
customer. Neither Buyer nor its customers shall have the right to copy,
modify, or remanufacture any Product or part thereof except as provided
under separate, specific Agreements between the Seller and the Buyer or
its customers.
4. TRAINING, INSTALLATION, AND SERVICE
(a) Services by Buyer: Buyer shall have the responsibility to install the
Products, test the installed Products, provide first-level customer
support, and train the customers with respect to the Products sold.
Seller agrees to provide field assistance in these areas when requested
by Unisys during the first six months of the Term of the Agreement,
until Unisys personnel are fully trained. The services shall be
performed by trained personnel of Buyer as described in Paragraph 4 (b)
and shall be prompt and of the highest quality.
B-2
(b) Training by Seller: Seller shall provide sales and service training to
Buyer's personnel at periodic intervals, with the frequency and content
of the training to be determined by. Seller. When possible, such
training shall be given at Buyer's facilities, but it may be necessary
to provide combined training at a geographically central location near
but not in the Territory. In either case, Seller and Buyer shall each
pay their own costs for travel, food and lodging during the training
period. Training costs per Price List on Attachment A. In addition to
sales and service training, Seller shall cooperate with Buyer in
establishing efficient service procedures and policies.
5. REPAIRS
(a) Factory Authorized Service Centers: At Buyer's option, it may request to
qualify as a Factory Authorized Service Center. If Buyer should so
request, Seller shall have sole discretion in determining whether or not
to qualify Buyer as a Factory Authorized Service Center.
(b) Repair Provisions: For so long as Buyer is not a Factory Authorized
Service Center, service and repairs of the Products may be obtained from
Seller by delivery of the Product to Seller's office in Dallas, Texas,
postage prepaid, accompanied by a written request. If such service and
repair are not covered by Seller's standard limited warranty (described
below), Seller may charge the customer for Seller's expenses and hourly
charges according to Seller's established rates and terms in effect.
6. WARRANTY TO BUYER'S CUSTOMERS
(a) Standard Limited Warranty: Buyer shall pass on to its customers Seller's
standard limited warranty for the Products, including the limitations
set forth in Subsections 6(b) and 6(c) below. This warranty shall cover
repair or replacement of all parts necessary to maintain the Products in
good working order provided that the Product is returned to Seller's
office in Dallas, Texas, postage paid; and shall extend for a period of
twelve (12) months from the date of delivery. This warranty is
contingent upon proper use of a Product in the application for which it
was intended and does not
B-3
cover Products that were modified without Seller's approval or that were
subjected by the customer to unusual physical or electrical stress,
among other terms and limitations provided therein. In addition to the
above warranty, the provisions of ▇▇▇▇▇▇▇▇▇ ▇, "▇▇▇▇▇▇▇▇" of Attachment
D are incorporated by reference in this Paragraph 6(a).
(b) No Other Warranty: EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE,
SELLER GRANTS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR
OTHERWISE, REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PURPOSE, THEIR
QUALITY, THEIR MERCHANTABILITY, OR OTHERWISE.
(c) Limitation of Liability: SELLER'S LIABILITY UNDER THE WARRANTY SHALL BE
LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCT OR PARTS THEREOF AS
PROVIDED ABOVE. IN NO EVENT SHALL SELLER BE LIABLE FOR THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS BY THE CUSTOMER, EXCEPT FOR NORMAL
COVER-TYPE DAMAGES AVAILABLE TO BUYER BY LAW, OR FOR ANY SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF WARRANTY.
(d) High Risk Activities: Buyer acknowledges that the Seller's Products are
not fault-tolerant and are not designed, manufactured or intended by
Seller for use or resale in online control equipment in hazardous
environments requiring fail-safe performance, such as in the operation
of nuclear facilities, aircraft navigation or communication systems, air
traffic control, direct life support machines, or weapons systems, in
which the failure of products could lead directly to death, personal
injury, or severe physical or environmental damage ("High Risk
Activities"). Seller specifically disclaims any express or implied
warranty of fitness for High Risk Activities. Buyer represents and
warrants that it will not use Seller's Products or technology or
derivative technology and will not use, distribute or resell Products
for High Risk Activities.
7. SOFTWARE LICENSING AND SERVICES
(a) License to Buyer: Seller hereby grants to Buyer a nonexclusive,
royalty-free, fully paid license to use, demonstrate, and sublicense the
object code of the Software in the Territory in carrying out Buyer's
obligations under the provisions of this Agreement. The license shall
terminate on the termination of this Agreement for any reason.
B-4
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
(b) Sublicensing:
(c) Services: To each licensee of the Software, Seller shall provide the
opportunity to subscribe for the optional software maintenance services
that are referred to in the License.
8. BUYER DISCOUNT PROVISIONS
(a) Buyer shall be entitled to the prices listed in Attachment A, which
represent [***] discount to Seller's U.S. List Prices, for the Term of
the Agreement, [***]
B-5
"The information below marked [***] has been omitted pursuant to a request for
confidential treatment. The omitted portions have been separately filed with the
Commission."
ATTACHMENT C
TO
CORPORATE PURCHASE AGREEMENT
NO. [***]
INTERNATIONAL OFFSET CREDITS
Seller in consideration of the issuance of Purchase Order(s) by Buyer, herewith
agrees to transfer on a best effort basis to Buyer, indirect offset credits in
the aggregate amount of [***] the value of individual Purchase Order(s) within
[***] from date of such Purchase Order(s).
The aforementioned indirect offset credits are to be the result of purchases by
Seller in Canada, Israel, Mexico, Spain, Brazil and Australia or exports from
these countries by Seller, subject to award of indirect offset credits for such
procurement or exports by and specific approval for transfer of, such awarded
credits to Buyer, from the appropriate authorities in these countries.
Seller further agrees to provide to Buyer within [***]from date of Purchase
Order(s) a breakdown of the aggregate amount of indirect offset credits involved
on a country-by-country basis for the above named countries. Thereafter, Seller
will provide to Buyer progress reports on a quarterly basis until such time as
the aggregate amount involved has been reached or has been limited by
circumstances beyond Seller's control.
Buyer at its option may declare offset credits for purchases and shipments made
from Seller within the boundaries of the abovementioned countries.
B-6
Attachment D
PURCHASE ORDER TERMS AND CONDITIONS
1. DEFINITIONS - The word "Articles" means the goods, materials, products,
technical data, intellectual property, drawings, or services identified in
this purchase order The term "Government" means the government of the
United States of America or any department or agency thereof.
2. ACCEPTANCE OF PURCHASE ORDER - This purchase order constitutes Buyer offer
to Seller and shall become a binding contract upon the terms and condition
set forth herein upon acceptance by Seller either by signing and returning
the acknowledgment form hereof, commencement of effort, or by prompt
shipment conforming Articles, whichever occurs first. This purchase order
does not constitute an acceptance by Buyer of any offer to sell, any
quotation, or any proposal. Reference in this purchase order to any such
offer to sell, quotation, proposal shall in no way constitute a
modification of any of the terms and conditions of this purchase order to
any degree whatsoever. Any terms and conditions proposed by Seller in
acknowledging or accepting Buyer's offer which are inconsistent with or in
addition to the terms set forth in this purchase order shall not be binding
upon Buyer and shall be void and of no effect, unless and to the extent
expressly accepted in writing by Buyer's authorized procurement
representative.
3. DATA - Seller acknowledges that it has in its possession all applicable
specifications, drawings and documents necessary to perform its obligation
hereunder at the price and schedule set forth. All such documentation shall
be deemed to be a part of this purchase order.
4. PACKAGING AND SHIPPING - Deliveries shall be made as specified without
charge for packaging or storage unless otherwise specified, and Articles
shall be suitable packed to secure lowest transportation costs and in
accordance with the requirements of common carriers. Articles shall be
described on bills of lading Buyer's order numbers must be plainly marked
on all packages, bills of lading and shipping orders. Buyer's count or
weight shall be final and conclusive on shipments. Except as consented to
by Buyer, Seller shall not ship in advance of schedule and shall ship exact
quantities ordered.
5. TAXES AND DUTIES - The prices stated herein include all applicable taxes
and duties, except state and local sales and use taxes which by statute may
be passed on to Buyer. Such sales and use taxes shall be separately stated
on Seller's invoice. This order shall include all related customs duty and
import drawback rights, if any, including rights developed by substitution
and rights which may be acquired from Seller's suppliers, which Seller can
transfer to Buyer. Seller agree to inform Buyer of the existence of all
such rights, and to supply such document as may be required to obtain such
drawbacks, unless waived by Buyer. Seller agrees to certify to Buyer the
country of origin for the goods supplied under this purchase order.
1
6. PRICES - Seller represents that prices quoted to or paid by Buyer shall not
exceed current prices charged to any other customer of Seller for items
which are the same or substantially similar to the Articles, taking into
account the quantity under consideration. Seller shall refund any amounts
paid by Buyer in excess of such price.
7. SET-OFF - Buyer shall be entitled at all times to set-off any amount owing
at any time from Seller to Buyer, any of its divisions or any of its
affiliates or subsidiaries against any amount payable at any time to Seller
by Buyer, any of its divisions of any of its affiliates or subsidiaries.
8. WARRANTY - Seller warrants that all Articles will conform to applicable
specifications, drawings, descriptions, and samples, and will be of new
manufacture, good workmanship and materials, and free from defect, claim
encumbrance, or lien. Unless manufactured pursuant to detail design
furnished by Buyer, Seller assumes design responsibility and warrants the
Articles to be free from design defect and suitable for the purposes
intended by Buyer. If the Articles delivered or services furnished
hereunder do not meet the warranties specified herein or otherwise
applicable, Buyer may, at its option return at Seller's expense the
defective or nonconforming Articles for credit or refund, or require Seller
to correct, at no cost to Buyer, any defective or nonconforming Articles or
services Articles required to be corrected or replaced shall be subject to
this clause and Clause 9 entitled "Inspection" in the same manner and to
the same extent as Articles delivered under this order originally. Seller's
warranties, together with its service guarantees, shall run to Buyer and
its customers or users of the Articles and shall not be deemed to be
exclusive. Buyer's inspection, approval, acceptance use of or payment for
all or any part of the Article shall in no way affect its warranty rights
whether or not breach of warranty had become evident at the time.
9. INSPECTION - The Articles may be inspected by Buyer at all times and places
and at any stage or production, and if at the premises of Seller, Seller
without additional charge shall provide all reasonable facilities and
assistance required for safe and convenient test and inspection. The
foregoing shall not relieve Seller's of its obligation to make full and
adequate test and inspection. Buyer may base acceptance or rejection of any
or all Articles on inspection by sampling. From the time of notice of
rejection of defective Articles upon inspection, or for a breach of
warranty, risk of loss thereof shall be upon Seller until redelivery, if
any, to Buyer. All rejected Articles may be returned to Seller at Seller's
risk and expense or be held by Buyer at Seller's risk and expense, subject
to Seller's disposal.
10. DEFAULT - Buyer may, by written notice to Seller, cancel this purchase
order for default, (a) if the Seller fails to deliver the Articles or to
perform the services strictly within the time specified herein, or if no
time is specified, within a reasonable time (b)if the Articles delivered do
not conform to contractual requirements or if Seller fails to perform any
of the other provisions of the purchase order, or so fails to make progress
as to endanger performance of the contract in accordance with its terms;
or(c)if Seller's financial conditions shall at any time become
unsatisfactory to Buyer. Upon such cancellation Seller will deliver to
Buyer any of the Articles, for which Buyer shall make written request at or
after cancellation and Buyer will pay Seller the fair value of any such
property so requested and delivered.
2
11. CHANGES - Buyer shall have the right by written notice to change the extent
of the work covered by the purchase order, the drawings, specifications, or
other description herein, the time method or place of delivery or the
method of shipment or packaging or to suspend work. Upon receipt of any
such notice, Seller shall proceed promptly to make the changes in
accordance with the terms of the notice. If any such change causes an
increase or decrease in the cost of performance or in the time required for
performance Seller shall provide prompt notice to Buyer of any change of
costs or time for performance and an equitable adjustment shall be
negotiated promptly and the purchase order modified in writing accordingly.
12. TOOLS AND MATERIALS - Title to and the right of immediate possession of all
tooling, equipment, or materials furnished or paid for by Buyer directly or
indirectly for use hereunder shall be and remain in Buyer. Buyer does not
guarantee or warrant the accuracy of any tooling furnished by it. Seller
shall (a) be responsible for all loss or damage to such tooling, equipment,
or materials while in its possession and insure its risk in this respect
with adequate fire and extended coverage insurance; (b) clearly ▇▇▇▇ the
same as belonging to Buyer, keep it segregated in Seller's plant and treat
it confidentially; (c) keep the same in good operating condition; and (d)
use the same exclusively for the performance of work for Buyer and not for
production of larger quantities than specified or in advance of normal
production schedules, except with Buyer's written consent. Tooling,
equipment or materials furnished shall not include Government furnished
items of this sort. Upon completion of this order, all such items shall be
disposed of as Buyer directs.
13. PATENTS, COPYRIGHTS, TRADEMARKS AND TRADE SECRETS - The Seller shall defend
at its expense and hold harmless Buyer, its subsidiaries, agents, customers
and users, from any and all loss, damages or liability (including legal
expense) for or on account of, or resulting from, any claim of infringement
of any existing or future patents, copyrights, or trademarks, or violation
of any trade secrets, with respect to any of the Articles furnished under
this purchase order. The fact that Buyer furnishes specifications to Seller
with respect to any of the Articles, shall neither relieve the Seller from
its obligations hereunder nor limit the Seller's liability therefor, nor
shall the same be deemed to constitute an undertaking by Buyer to hold
Seller harmless against any such claim which arises out of compliance with
the specifications.
14. CONFIDENTIAL INFORMATION - Seller shall not disclose to any third party or
use any confidential information concerning this purchase order or other
material intended for use therewith without first obtaining the written
consent of Buyer. The Buyer shall retain title at all times to such
drawings, specifications, samples and other material, all of which,
including copies thereof, upon request or upon completion of this order,
shall be promptly returned to Buyer. Any knowledge or information which
Seller may disclose to Buyer in connection with the purchase of any of the
Articles shall not, unless otherwise specifically agreed upon in writing by
Buyer, be deemed to be confidential information and shall be acquired free
from any restriction as part of the consideration for this purchase order.
3
15. TERMINATION - At any time Buyer may at its option with or without reason
terminate this order for convenience in whole or in part by written or
telegraphic notice. Any claim of Seller shall be settled on the basis of
reasonable costs it has incurred in performance of this purchase order.
16. COMPLIANCE WITH LAW - Seller shall in the performance of the purchase order
comply with all applicable laws, executive orders, regulations, ordinances,
proclamations, demands and regulations of the Government, or of any state
or local government authority which may now or hereafter govern performance
hereunder.
17. NOTICE OF DELAY - Whenever an actual or potential labor dispute or other
event is delaying or threatens to delay the timely performance of this
order, Seller will immediately give notice thereof, including all relevant
information with respect thereto, to Buyer.
18. ASSIGNMENT AND SUBCONTRACT - Neither this purchase order nor any duty of
right thereunder shall be delegated or assigned by Seller without the prior
written consent of Buyer. Seller agrees that it will not subcontract for
completed or, substantially completed Articles or major components thereof
without Buyers prior written consent. Any assignment not made in accordance
with the terms and conditions of this paragraph is void and will have no
effect.
19. ADVERTISING - Seller shall not, without first obtaining the written consent
of Buyer, in any manner advertise or publish the fact that Seller
contracted to furnish Buyer the Articles.
20. INDEMNITY - Seller agrees to indemnify and hold Buyer harmless from any and
all claims and liability, including expenses, including but not limited to,
legal fees and court costs, for injuries or death to persons or damage to
or destruction of property caused by or resulting from the acts or
omissions of Seller, its agents, suppliers or employees in the performance
of this order and defend at Sellers expense all suits or proceedings
arising out of any of the foregoing. If work or services under this order
are to be performed within the premises occupied or controlled by Buyer or
a customer of Buyer, then Seller agrees as follows: (a) to accept the
premises in their present condition as safe and satisfactory for the work
or services to be performed, (b)to hold Buyer and its customers harmless
from all injuries, damages, and claims arising from such performance, (c)
to maintain insurance that will protect Seller, Buyer, and its customers
from claims under Workmen's Compensation Acts and from any other claims for
damages, personal injury, or death to employees of Seller, Buyer, or its
customers, or any other persons, which may arise from performance of work
or services covered by this order, whether performed by Seller or any
subcontractor, or anyone directly or indirectly employed by either of them,
and (d) to file certificates of such insurance with Buyer, and to obtain
Buyer's approval of the adequacy of protection whenever so required.
21. HAZARDOUS CHEMICALS AND HAZARDOUS MATERIALS - Prior to shipment or transfer
of any hazardous chemicals (as defined by regulations promulgated pursuant
to the occupational Health and Safety Act) and hazardous materials (as
defined by regulations promulgated by the U.S. Department of Transportation
and
4
Appendix A of Federal Standard number 313A), Seller shall provide the Buyer
with an appropriate, up-to-date Material Safety Data Sheet.
22. U.S. GOVERNMENT EXPORT CONTROLS - If Buyer provides or has provided Seller
articles or technical data, identified as subject to U.S. export controls,
Seller's use in connection with performance under this purchase order, then
Seller responsible for compliance with U.S. Government export regulations
15 CFR 368-399, 22 CFR Parts 121-130, DOD Directive 5230.25 and other U.S.
Government regulations applicable to the disclosure or export of articles
technical data to Foreign Nationals of the United States. Buyer reserves
the right to obtain any necessary U.S. Government export approvals,
licenses, certification and assurances.
23. DELIVERY - Delivery according to schedule is a major condition of this
order. Therefore, time is of the essence with respect to any delivery or
service to be provided hereunder.
24. WAIVER - The failure of Buyer to insist, in any one or more instances, upon
the performance of any of the terms, covenants or conditions of this
purchase order or to exercise any right hereunder, shall not be construed
as a waiver or relinquishment of the future performance of any such term,
covenant or condition or the future exercise of such right, but the
obligation of Seller with respect to such future performance shall continue
in full force and effect.
25. ENTIRE AGREEMENT - This purchase order constitutes the entire agreement and
exclusive statement of the terms between the parties with respect to the
purchase and sale of the Articles hereunder and supersedes all previous
communications representations, or agreements between the parties with
respect thereto. No alteration, modification or amendment of any of the
provisions hereof shall be binding unless in writing and signed by Buyer's
authorized procurement representative.
26. CONSTRUCTION - This purchase order and the performances of the parties
hereunder shall be construed in accordance with and governed by the laws of
the Commonwealth of Pennsylvania.
27. SUPPLEMENTARY PROVISIONS TO GOVERNMENT CONTRACTS - For work involving or
subject to a U.S. Government contract, the applicable provisions are
contained in the supplement attached hereto and made a part of this
purchase order.
5
