Exhibit 10.17
OEM Agreement
By and Between
CALCOMP INC.
and
KATSURAGAWA ELECTRIC CO., LTD.
TABLE OF CONTENTS
Article 1 - DEFINITIONS................................................... 1
Article 2 - GRANT OF RIGHTS............................................... 2
Article 3 - SUPPLY OBLIGATION, PURCHASE ORDERS AND SHIPPING............... 3
Article 4 - PRICING AND PAYMENT........................................... 4
Article 5 - TECHNICAL TRAINING, MANUALS................................... 5
Article 6 - PRODUCT SPECIFICATIONS: MODIFICATIONS OF PRODUCTS............. 6
Article 7 - WARRANTY...................................................... 6
Article 8 - PATENTS....................................................... 7
Article 9 - TRADEMARKS.................................................... 8
Article 10 - SECRECY...................................................... 9
Article 11 - TERM OF AGREEMENT............................................ 10
Article 12 - TERMINATION FOR SPECIAL REASONS.............................. 10
Article 13 - FORCE MAJEURE................................................ 11
Article 14 - WAIVER....................................................... 11
Article 15 - ASSIGNMENT................................................... 11
Article 16 - ENTIRE AGREEMENT............................................. 11
Article 17 - GOVERNING LAW................................................ 11
Article 18 - ARBITRATION.................................................. 12
Article 19 - NOTICE....................................................... 12
Article 20 - REPRESENTATIONS.............................................. 12
Article 21 - MATTERS NOT PROVIDED FOR..................................... 12
EXHIBITS
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Annex I - Model 1220 Product Description
Annex II - Pricing for Machines
Annex III - KIP Model 1220 Parts Price List.
Annex IV - Exchange Rate Procedure
AGREEMENT
---------
THIS AGREEMENT is made as of the 9th day of January 1996, by and between CALCOMP
INC., having its principal place of business at 2411 West La Palma Avenue,
Anaheim, California, U.S.A. (hereinafter called "CALCOMP") and KATSURAGAWA
ELECTRIC CO., LTD., having its principal place of business at 21-3, Shimomaruko
4-chome, Ohta-ku, Tokyo, Japan (hereinafter called "KTA")
WITNESSETH
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WHEREAS, KTA has been designing and developing a digital printer engine
designated by KTA as its Model 1220 (hereinafter referred to as the MACHINE",
which term is more fully defined below);
WHEREAS, CALCOMP desires to purchase MACHINES as well as spare parts,
accessories and consumable products for use in and with MACHINES from KTA for
the purpose of distributing the same in the TERRITORY on an OEM basis together
with controllers, drivers and software designed by CALCOMP; and
WHEREAS, the parties wish to enter into an Agreement setting forth the terms and
conditions under which CALCOMP shall purchase and distribute such products from
KTA.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth,
the parties 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. The
following terms shall have the described meanings:
a) MACHINE shall mean the KIP model 1220 Digital Printer Engine designed and
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developed by KTA, the specifications of which are set out in Annex I hereof.
b) SPARE PARTS shall mean those parts used in the repair of the MACHINE and
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which are an integral part thereof.
c) SUPPLY PRODUCTS shall mean SPARE PARTS plus accessories and consumable
---------------
products such as
developer, toner and a photosensitive drum to be used in or in connection
with the MACHINE, but not including paper and other copying media.
d) CONTRACT PRODUCTS, shall mean the MACHINE or SUPPLY PRODUCTS.
-----------------
e) OEM PRODUCTS shall mean the MACHINE, and the SUPPLY PRODUCTS, as integrated
------------
into a final product by CALCOMP, inter alia by providing the MACHINE with a
controller driver and related software.
f) TERRITORY shall mean all countries in the World.
---------
g) CONTRACT YEAR, shall mean the twelve (12) consecutive calendar month period
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after the first day of the month in which the first production order for
the MACHINES is received or any subsequent twelve (12) consecutive calendar
month period.
Article 2 - GRANT OF RIGHTS
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2.1
- ---
KTA hereby grants to CALCOMP the non-exclusive right to distribute the OEM
PRODUCTS on an OEM basis within the TERRITORY during the term of this Agreement.
The said right of CALCOMP shall include CALCOMP's right to have the OEM
PRODUCTS distributed by its subsidiaries and distributors within the TERRITORY,
provided that CALCOMP shall be responsible for the compliance by such
subsidiaries and distributors with the terms of this Agreement.
2.2
- ---
CALCOMP hereby agrees to use its best efforts to distribute the OEM PRODUCTS on
an OEM non-exclusive basis within the TERRITORY during the term of this
Agreement.
2.3
- ---
Nothing in this Agreement is to be construed as giving either party the right to
commit the other or to act as the legal representative of the other party.
Article 3 - SUPPLY OBLIGATION, PURCHASE ORDERS AND SHIPPING
- -----------------------------------------------------------
3.1
- ---
KTA agrees to supply CALCOMP with the CONTRACT PRODUCTS ordered by CALCOMP for
distribution by CALCOMP within the TERRITORY during the term of this Agreement.
3.2
- ---
During the term hereof and for a period of at least five (5) years after the
termination date of this Agreement, KTA shall supply CALCOMP with SUPPLY
PRODUCTS which CALCOMP may order. If KTA at any time during such five (5) year
period determines that it will no longer supply certain of the SUPPLY PRODUCTS
after expiration of the said period, it will give at least three (3) months
notice prior to the expiration of said five (5) year period to CALCOMP,
identifying the SUPPLY PRODUCT to be discontinued. In such case CALCOMP shall be
entitled to purchase one (1) final lot, in a reasonable quantity, of the SUPPLY
PRODUCT concerned from KTA.
3.3
- ---
CALCOMP agrees that none of the 120 and 220 volt units of the MACHINE shall be
distributed in Japan as such or converted into 100 volt units.
3.4
- ---
CALCOMP agrees that it will place firm orders ("Firm Orders") for the CONTRACT
PRODUCTS by means of a purchase order form, letter, or facsimile before the
fifteenth (15th) of each month for the third (3rd) month following, and provide
KTA with a forecast (the "Forecast") before the fifteenth (15th) of each month
for the fourth (4th) and fifth (5th) months following. If any Firm Order is
placed by facsimile, CALCOMP shall promptly send to KTA a confirmation copy by
mail.
Unless CALCOMP specifies otherwise and agrees to pay extra charges for the
packaging concerned, the number of MACHINES specified in a Firm Order for a
month shall be equal to or a multiple of twenty-four (24) (the number of
MACHINES which fit in a 20 foot container) or fifty-seven (57) (the number of
MACHINES which fit in a 40 foot container). Provided, however, that insofar as
the packaging for the relevant MACHINES need not be changed, the number of
MACHINES for such monthly order need not be equal to or a multiple of twenty-
four (24) or fifty-seven (57).
Firm orders may not deviate in quantity by more than twenty (20) per cent (plus
or minus) from the quantity provided in the related Forecast.
KTA will confirm promptly its acceptance of such Firm Orders by facsimile to
CALCOMP. If such acceptance is sent by facsimile, KTA shall promptly send to
CALCOMP a confirmation copy by mail.
3.5
- ---
The following shall be shipped by KTA, F.O.B. Taipei/Keelung Taiwan or F.O.B.
Japan to CALCOMP within the times stipulated:
a) MACHINES shall be shipped by KTA from its factory to CALCOMP within three
(3) months from the fifteenth (15th) of the month before which date the
Firm Order for such MACHINES is placed.
b) SUPPLY PRODUCTS shall be shipped by KTA from its factory to CALCOMP with
the relevant lead time as stated in Annex III, KIP Model 1220 Parts Price
List.
3.6
- ---
On each Firm Order and each delivery made hereunder the terms and conditions
hereof shall be exclusively applicable. General sales or purchase conditions of
the parties hereto shall not be applicable. Special conditions for certain
orders shall be clearly stated in writing and shall previously be accepted in
writing by KTA and CALCOMP in order to be applicable and valid.
Article 4 - PRICING AND PAYMENT
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4.1
- ---
For the first CONTRACT YEAR, the prices for 120, 220 volt unit and 100 volt unit
of the MACHINE respectively shall be as set out in Annex II hereto, the 120 and
220 volt units of which shall be subject to adjustment with respect to
fluctuations in the exchange rate as stated in Annex IV hereto. For the first
CONTRACT YEAR, the prices for SUPPLY PRODUCTS are set out in Annex III hereto.
4.2
- ---
Beginning at least ninety (90) days prior to the end of each CONTRACT YEAR, the
parties will negotiate in good
faith to arrive at the price and minimum purchase requirements for the MACHINE,
and the price for the SUPPLY PRODUCTS to be applied in the subsequent CONTRACT
YEAR.
4.3
- ---
Payment for the MACHINES or SUPPLY PRODUCTS shall be made by CALCOMP to KTA in
Japanese Yen via telegraphic transfer (TT) into an account so designated by KTA,
within five (5) days of receipt of a copy of the relevant Bill of Lading or
Airway Bill, for the shipment in question, having been sent via facsimile to
CALCOMP.
Article 5 - TECHNICAL TRAINING, MANUALS
- ---------------------------------------
5.1
- ---
KTA shall provide technical training to the service personnel of CALCOMP as
follows:
a) KTA shall provide, upon written request by CALCOMP, technical training
courses ("Service Training Courses") to train a limited number of key
technicians of CALCOMP at KTA's facility in Japan. KTA shall incur all
costs and expenses for its own personnel and lodging expenses for CALCOMP'S
personnel and CALCOMP shall bear all travel costs and other expenses (other
than lodging expenses) for its own personnel.
b) At CALCOMP's request, KTA may agree to hold its Service Training Course at
CALCOMP's facility, provided CALCOMP shall incur all costs and expenses of
its own personnel and lodging expenses for KTA's instructor, and KTA shall
bear all travel costs and expenses (other than lodging expenses) of its own
instructor.
c) The obligation of KTA in paragraphs a) and b) above shall be limited to ten
(10) man-days of instruction (e.g. one (1) key technician of CALCOMP for
ten (10) working days or two (2) key technicians of CALCOMP for five (5)
working days) during the first year of this Agreement.
5.2
- ---
CALCOMP may prepare, at its own cost, its own manuals and catalogues regarding
the OEM PRODUCTS. For that purpose KTA shall, upon request, furnish to CALCOMP,
free of charge, all information regarding the CONTRACT PRODUCTS which may
reasonably enable CALCOMP to prepare such documentation, including one (1) set
in English of the parts manual, service manual, operation manual and
interface-specifications for the CONTRACT PRODUCTS.
Article 6 - PRODUCT SPECIFICATIONS: MODIFICATION OF PRODUCTS
- ------------------------------------------------------------
KTA may make modifications of the CONTRACT PRODUCTS which do not alter the
appearance or operation of the CONTRACT PRODUCTS or do not require any adaption
by CALCOMP of electronic or mechanical items in the OEM PRODUCTS ("Minor
Modifications"). KTA shall inform CALCOMP of such Minor Modifications at least
one month prior to the shipment of the CONTRACT PRODUCTS containing such
modifications. Any modification of the CONTRACT PRODUCTS other than Minor
Modifications may only be made by KTA after having given CALCOMP six (6) months
written notice of such modification. Further, for Engineering Change Information
("ECI"), KTA agrees to notify CALCOMP prior to making modifications in the
following areas, 1) the appearance of the MACHINE, 2) matters relating to Agency
approval, and 3) matters relating to the software and the controller. CALCOMP
shall respond to all KTA ECI requests within thirty (30)days.
Article 7 - WARRANTY
- --------------------
7.1
- ---
KTA warrants that all CONTRACT PRODUCTS shall be free from defects in material
and workmanship and shall be and operate according to the specifications
appearing in Annex I. The said warranty shall apply during a period of six (6)
months after installation of the OEM PRODUCTS at CALCOMP's customers' premises
or for twelve (12) months after the date of shipment, whichever period is
shorter, and is subject to the condition that CALCOMP has notified KTA in
writing or by facsimile of any warranty claim within the warranty period. If
such notice is sent by facsimile, CALCOMP shall promptly send to KTA a
confirmation copy of the same by mail.
7.2
- ---
KTA's sole obligation under the warranty in Article 7.1 is limited to either
repairing or replacing at KTA's option.
and expense, those CONTRACT PRODUCTS or parts thereof which do not conform to
the said specifications. CALCOMP may, if appropriate and after agreement with
KTA, repair the defective CONTRACT PRODUCTS at the installation site, in which
case KTA shall credit CALCOMP the costs of replacement parts used by CALCOMP.
CALCOMP shall notify KTA of any defective component and allow KTA to evaluate
the claim against the defective component. KTA or CALCOMP may request that the
defective component be returned to KTA for failure analysis.
7.3
- ---
The above warranty does not extend to that part of the CONTRACT PRODUCTS
modified, altered or improved by CALCOMP in creating the OEM PRODUCTS and
CALCOMP shall indemnify and hold KTA harmless from any and all claims related
thereto.
7.4
- ---
If it is unclear or cannot be determined from the nature of the defect whether
Articles 7.1 and 7.2 or 7.3 should apply, the parties shall meet and determine
in good faith a reasonable apportionment of the relevant repair or replacement
costs.
7.5
- ---
THIS WARRANTY IS IN LIEU OF ALL OTHERS, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND ACTION UNDER THIS
WARRANTY SHALL BE THE EXCLUSIVE REMEDY.
Article 8 - PATENTS
- -------------------
8.1
- ---
KTA declares that to the best of its knowledge as of the date hereof the
CONTRACT PRODUCTS can be marketed and used in the TERRITORY without infringing
any intellectual property rights or other rights of any third party.
8.2
- ---
In the event CALCOMP or KTA receives any oral or written notice alleging that
the CONTRACT PRODUCTS or any parts thereof furnished under this Agreement
constitute an infringement of any patent in the TERRITORY, CALCOMP and KTA shall
consult with each other in good faith and assist each other to the extent
reasonably possible in the implementation of the particular plan agreed upon by
CALCOMP and KTA as the best solution to the problem.
8.3
- ---
It is expressly agreed that in the event CALCOMP or KTA receives any such oral
or written notice alleging patent infringement as described in the preceding
Article 8.2, KTA shall have ninety (90) days from the date of its receipt of
such notice to attempt at its expense to reach an accommodation with the patent
claimant or holder or to modify or replace the CONTRACT PRODUCTS or any parts
thereof with ones that are free from such allegation of infringement.
8.4
- ---
KTA's obligations under this Article 8 extend only to the CONTRACT PRODUCTS and
do not extend to that part of the MACHINES modified, altered or improved by
CALCOMP in creating the OEM PRODUCTS and CALCOMP shall indemnify and hold KTA
harmless from all costs and expenses of patent infringement claims related
thereto.
8.5
- ---
If either party becomes aware of the possibility that the marketing,
distribution or use of the CONTRACT PRODUCTS in the TERRITORY could affect or
infringe intellectual property rights of third parties, it shall forthwith
inform the other party thereof, specifying the details of the same.
Article 9 - TRADEMARK
- ---------------------
CALCOMP shall market and advertise the OEM PRODUCTS only under the trademark
"SOLUS 4" or any other trademark or trademarks of CALCOMP.
Article 10 - SECRECY
- --------------------
During the term of this Agreement, each party may divulge to the other
information which is proprietary and confidential to it. Both parties hereby
agree that:
a) All information in written or other physical form, delivered to it by the
Other Party and which is designated to be proprietary and confidential will
be safeguarded in the same manner as it safeguards its own proprietary and
confidential information of like character, and will not be divulged to
third parties by it. Information which is initially orally or visually
submitted and identified at the time of initial disclosure as proprietary
shall also be safeguarded only if the Other Party notifies it in writing,
within ten (10) business days of such initial oral or visual disclosure,
with a specific identification of the proprietary information contained in
such initial oral or visual disclosure.
b) Such information designated as proprietary and confidential shall be used
by it only for the purpose of this Agreement unless there is a specific
written agreement permitting wider use.
c) This commitment shall terminate five (5) years from the Termination Date of
this Agreement.
d) This paragraph shall not impose any obligation upon such party with respect
to any portion of the received information which:
1. Is now, or which hereafter, through no act or failure to act on its
part, becomes generally known or available.
2. Is known to such party at the time of receiving such information.
3. Is furnished to others without restriction on disclosure, or
4. Is hereafter furnished to such party by a third party, as a matter of
right and without restriction on disclosure.
e) Upon written request from the disclosing Party, the receiving Party will
return all of disclosing Party's Proprietary and Confidential Information
disclosed under this Agreement to the disclosing Party.
Article 11 - TERM OF AGREEMENT
- ------------------------------
This Agreement shall be effective as from the date hereof and shall continue for
a period of three (3) CONTRACT YEARS. Thereafter, it shall be automatically
continued for successive periods of 12 consecutive months until and unless
terminated by one of the parties as at the end of the then current period by
giving at least ninety (90) days written notice thereof.
Article 12 - TERMINATION FOR SPECIAL REASONS
- --------------------------------------------
12.1
- ----
Without prejudice to any other remedy, any party may summarily terminate this
Agreement by notice in writing to the other party if the other party:
a) Commits a breach of any of the provisions of this Agreement and, if
the subject breach is capable of remedy, does not remedy that breach
within thirty (30) days of the receipt of written notice from the
other party requiring it to do so; or
b) ceases to carry on business, has a receiver appointed for its assets,
enters into liquidation, whether compulsory or voluntary, or otherwise
becomes subject to applicable insolvency laws; or
c) fails to meet its obligations; or
d) suffers a substantial change in the identity of its major
shareholders, except in the event such change results from an internal
reorganization within the present group of companies to which the
respective party presently belongs.
12.2
- ----
Termination of this Agreement for whatever reason shall not prejudice the
existing rights and obligations of either party to the other hereunder.
12.3
- ----
Any breach of this Agreement by either CALCOMP or KTA shall constitute a breach
for which such party shall be severally liable.
ARTICLE 13 - FORCE MAJEURE
- --------------------------
Neither party shall be liable for any default hereunder due to causes beyond its
control which originated without its fault or negligence including, but not
limited to, acts of God, war, strikes, freight and shipping embargoes,
government orders or regulations, provided that, the party which is unable to
perform its obligations hereunder for reasons indicated above, shall upon the
occurrence thereof notify the other of the occurrence and practical effect of
any such event in writing. If, despite the best efforts of the party in default
to remedy the situation of force majeure as indicated here above, the
performance of the obligations of a party hereto has been prevented by
occurrence of any event indicated above for a period of two (2) months or more,
the other party is entitled to terminate this Agreement forthwith by registered
letter.
ARTICLE 14 - WAIVER
- -------------------
The failure of either party hereto at any time to exercise any of its rights
under this Agreement shall not be deemed a waiver thereof, nor shall such
failure in any way prevent said party from subsequently asserting or exercising
such rights.
ARTICLE 15 - ASSIGNMENT
- -----------------------
No rights or obligations of any party hereunder shall be assignable without the
express prior consent of the other party in writing.
ARTICLE 16 - ENTIRE AGREEMENT
- -----------------------------
This Agreement supersedes all former agreements between the parties hereto
insofar as the same are related to the distribution of the CONTRACT PRODUCTS.
No change, addition or modification of any of the terms and provisions hereof
shall be binding on either party unless accepted in writing by both parties.
ARTICLE 17 - GOVERNING LAW
- --------------------------
This Agreement shall be construed and governed according to Japanese law.
ARTICLE 18 - ARBITRATION
- ------------------------
Any dispute which may arise out of or relating to this Agreement and which
cannot be solved by amicable settlement between the parties shall be determined
by arbitration. If such arbitration is instituted by KTA against CALCOMP, the
hearing shall be held in Anaheim, California, U.S.A. under the rules of the
American Arbitration Association. If such arbitration is instituted by CALCOMP
against KTA, the hearing shall be held in Tokyo, Japan under the rules of the
Japan Commercial Arbitration Association.
ARTICLE 19 - NOTICE
- -------------------
All notices hereunder shall be deemed to be sufficiently given if in the English
language and sent by one party to the other by facsimile or prepaid certified or
registered airmail addressed to its office as hereinabove set forth or to such
new address as such party may have specified to the other party by notice
hereunder. Notices as provided herein shall be deemed given when received, or if
correctly addressed and posted on the seventh day following the date of
dispatch, whichever comes earlier.
Notices to CALCOMP shall be addressed to: William L. Barber, Company Secretary
(Fax: (714) 821-2470).
Notices to KTA shall be addressed to: Mr. Masanori Wantanabe, President
(Fax: 03-3757-3451).
ARTICLE 20 - REPRESENTATIONS
- ----------------------------
Each party hereby warrants and represents to the other that it is legally free
to enter into this Agreement and that it has no obligation to any other person,
partnership, corporation, association or other business or legal entity which
would affect or conflict in any way with any of its obligations or duties
hereunder.
ARTICLE 21 - MATTERS NOT PROVIDED FOR
- --------------------------------------
Any matters not provided for herein shall be decided by mutual consultation, and
such decision shall not take effect unless and until confirmed by the Parties in
writing.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed on
- ------------------
their behalf by duly authorized representatives as of the day and year first
above written.
CALCOMP INC. KATSURAGAWA ELECTRIC CO., LTD.
By: /s/ GARY LONG By: /s/ MASANORI WATANABE
-------------------------- -----------------------------
Name: Gary Long Name: Masanori Watanabe
Title: President Title: President
Date: 4-17-96 Date: 4-23-96
------------------------- -----------------------------
APPROVED
AS TO FORM
/s/ W.F. PORTER, JR.
---------------------
LEGAL DEPT.
AMENDMENT 1 TO THE AGREEMENT
----------------------------
This Amendment is made and entered into as of February 1, 1996, by and between
KATSURAGAWA ELECTRIC CO., LTD., (hereinafter referred to as "KTA") and CALCOMP
Inc., (hereinafter referred to as "CALCOMP").
RECITALS
--------
WHEREAS KTA and CALCOMP have entered into an Agreement effective January 9,
1996.
WHEREAS the parties hereto wish to amend the Agreement in order to provide for
certain matters not previously addressed and to modify certain other terms;
NOW, THEREFORE, the parties hereto agree to amend the Agreement as follows:
1) Article 4 PRICING AND PAYMENT - Paragraph 4.1 revise wording as follows:
"The prices for 120 and 220 volt unit and 100 volt unit of the MACHINE
respectively shall be as set out in Annex II hereto, the 120 and 220 volt
units of which shall be subject to adjustment with respect to fluctuations
in the exchange rate as stated in Annex IV hereto. The prices for SUPPLY
PRODUCTS are set out in Annex III hereto."
2) Article 5 TECHNICAL TRAINING AND MANUALS - Paragraph 5.2 - revise wording
as follows:
"CALCOMP may prepare, at its own cost, its own manuals and catalogues
regarding the OEM PRODUCTS. For that purpose KTA shall, upon request,
furnish to CALCOMP, free of charge, all information regarding the CONTRACT
PRODUCTS which may reasonably enable CALCOMP to prepare such
documentation, including one (1) set in English of the parts manual,
service manual, operation manual and interface-specifications for the
CONTRACT PRODUCTS. KTA grants CALCOMP the right and license, subject to
the provisions of Article 10 Secrecy, to use, reproduce, modify, translate
and distribute the documentation and training materials with legally
effective copyright notice; provided however, that KTA shall not be liable
for any damages incurred by CALCOMP or a third party due to, and CALCOMP
shall indemnify and hold KTA harmless from liability for any damages
incurred by CALCOMP or a third party due to any errors or omissions in the
documentation used by CALCOMP using any information so provided by KTA."
3) Article 7 WARRANTY - Paragraph 7.1 - revise wording as follows:
"KTA warrants that all CONTRACT PRODUCTS shall be free from defects in
design, material and workmanship and shall be and operate according to the
specifications appearing in Annex I; provided, however, that such warranty
shall not apply to any defects which occur or arise as a result of changes
in aspects, features or details of the CONTRACT PRODUCTS which are
incorporated therein, adopted or implemented as a result of requests
originated by CALCOMP, provided that a CALCOMP officer has previously
agreed in writing that said warranty will not apply as a result of the
incorporation, adoption, or implementation of said aspects, features or
details. The said warranty shall apply during a period of six (6) months
after installation of the
OEM PRODUCTS at CALCOMP's customers' premises or for twelve (12) months
after the date of shipment, whichever period is shorter, and is subject to
the condition that CALCOMP has notified KTA in writing or by facsimile of
any warranty claim within the warranty period. If such notice is sent by
facsimile, CALCOMP shall promptly send to KTA a confirmation copy of the
same by mail.
The aforementioned warranty period shall be extended to three (3) years from
the relevant shipping date for any latent defect which causes a breach of
warranty in a series (for example, a range of serial numbers) of the
CONTRACT PRODUCT resulting from a common defect in the CONTRACT PRODUCTS
that was not discernible from an inspection and test of CONTRACT PRODUCTS.
In the event such latent defect is agreed by KTA and CALCOMP in writing,
then CALCOMP may elect to enter into a field replacement program of the
affected part or assembly, prior to its failure, so as to prevent or
minimize any liability or end user dissatisfaction with the CONTRACT
PRODUCT. In such case KTA shall provide replacement parts at no cost."
4) Article 7 WARRANTY - Paragraph 7.5 - replace this paragraph with the
following:
"THIS WARRANTY IS IN LIEU OF ALL OTHERS, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR OR INTENDED PURPOSE, AND ACTION UNDER THIS WARRANTY SHALL BE THE
EXCLUSIVE REMEDY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM A BREACH OF ITS
OBLIGATIONS HEREUNDER EXCEPT IN THE CASE OF A MATERIAL OR WILLFUL BREACH."
5) Article 10 SECRECY - sub-paragraph (a) - revise wording as follows:
"All information in written or other physical form, delivered to it by the
other party and which is designated to be proprietary and confidential will
be safeguarded in the same manner as it safeguards its own proprietary and
confidential information of like character, and will not be divulged to
third parties by it. Information which is initially orally or visually
submitted and identified at the time of initial disclosure as proprietary
shall also be safeguarded only if the other party notifies it in writing,
within ten (10) business days of such initial oral or visual disclosure,
with a specific written identification of the proprietary information
contained in such initial oral or visual disclosure.
This Agreement shall not impose any obligation upon the receiving party with
respect to any portion of the received information which (i) is now, or
which hereafter, through no act or failure to act on the part of the
receiving party, becomes generally known or available; (ii) is known to the
receiving party at the time of receiving such information; (iii) is
furnished to others by the disclosing party without restriction on
disclosure; (iv) is hereafter furnished to the receiving party by a third
party, as a matter of right and without restriction on disclosure; or (v) is
independently developed by the receiving party without recourse to the
received information, provided that the receiving party can demonstrate by
written documentation that it developed such information independently.
Each party agrees that upon written request from the other it will return
any identified proprietary and confidential written material furnished to it
which has not been provided in accordance with some business agreement
transferring rights to such material, and will state in writing that no
copy of such material has been provided to others or has been retained
(except for one archival copy which each party may retain in locked legal
files)."
6) Article 10 SECRECY - sub-paragraph c - revise wording as follows:
"This commitment shall terminate three (3) years from the Termination Date
of this Agreement."
7) Article 15 ASSIGNMENT - Replace the existing language with the following:
"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. This Agreement shall, however, be binding upon and
inure to the benefit of any successor in interest of a party hereto as a
result of a merger or consolidation."
8) Add a new Article 22 entitled "MACHINE RESCHEDULE" with wording as follows:
"CALCOMP may, without incurring liability for any additional or increased
costs resulting therefrom, make changes in the quantities of the MACHINES
scheduled to be delivered, provided written notice of such change is given
to KTA no later than the period of time specified below as applicable to
the percentage change in quantity.
DAYS PRIOR TO SCHEDULED PERCENTAGE CHANGE IN QUANTITY
FOB DELIVERY DATE INCREASE DECREASE
0-60 0% 0%
61 or more 20% 10%"
9) Add a new Article 23 entitled "MACHINE DISCONTINUATION" with wording as
follows:
KTA shall provide six (6) months written notice to CALCOMP of its
discontinuance of the manufacture of the MACHINE. The notice shall comprise
KTA's model number, description, CALCOMP part number and KTA's replacement
part number, where applicable. Such notices shall be sent as provided for
herein. During the notice period CALCOMP may place orders for delivery of
the MACHINE, including life time buy purchase orders, for delivery during
the notice period or in the subsequent six (6) month period provided that
the delivery schedule for such six (6) month period is determined at the
time of such orders."
10) Add a new Article 24 entitled "SURVIVAL PROVISIONS" with wording as
follows:
"Notwithstanding the termination or cancellation of this Agreement, the
relevant provisions of Articles 2, 3, 5, 7, 8, 9, 10, 17, 18 and 19 and any
other Articles for which the context so requires shall survive and shall
continue to apply in accordance with their terms."
11) Replace Annex II with Annex II (Revision 1) attached hereto.
12) All other terms and conditions of the Agreement as amended shall remain in
full force and effect.
The parties hereto ratify and confirm the Agreement as revised by this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to sign this Amendment on their behalf as of the date first
above written.
CALCOMP INC. KATSURAGAWA ELECTRIC CO., LTD.
By: /s/ Gary Long By: /s/ Masanori Watanabe
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Name: Gary Long Name: Masanori Watanabe
Title: President Title: President
Date: 4-17-96 Date: 4-23-96
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