OEM ALLIANCE AGREEMENT
BETWEEN
COMO PRODUCTS CORPORATION
AND
PROJECTAVISION, INC.
This Agreement dated June 6, 1996 (the Agreement) is entered into among
G.L. Industries of Indiana, Inc. a/k/a Como Products Corporation, (hereafter
referred to as "COMO"), a Indiana Corporation doing business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Projectavision, Inc., (hereafter referred to as
"Projectavision") a Delaware Corporation doing business at ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (each individually referred to as a "Party" and
collectively as the "Parties").
Whereas, Projectavision is engaged in the sale of projection systems in the
commercial market, and COMO is engaged in the business of manufacturing and
selling custom molded plastic components which have applications in commercial
and consumer markets;
Whereas, Projectavision, agrees to enter into an alliance with COMO
Plastics to manufacture the projector portion of the Chameleon product.
Additionally, it is Projectavision's intent to have COMO Plastics assemble and
procure all components necessary for the Chameleon's projector.
In turn, COMO will provide the following:
1. Storage for inventory at no cost for an agreed upon period of time.
2. Engineering support services such as but not limited to, mold flow
analysis, finite element analysis, etc. at no cost.
3. Development of assembly line and fixturing at no additional cost.
4. Favorable payment terms.
5. Expand, add facilities as needed.
Whereas, it is also, Projectavision's intention within this alliance to
develop a relationship with COMO for future products and/or product
improvements. In this relationship, Projectavision will bring its product
concepts to COMO for development for manufacturing. COMO will bring their
respective resources for Industrial Design, Mechanical Engineering and
Manufacturing.
Whereas, the Parties desire to put in place this Agreement which
establishes the terms under which Projectavision may issue purchase orders for
the purchase of goods manufactured by COMO.
The Parties hereby agree as follows:
1
1. DEFINITIONS
For purposes of this Agreement:
a. The term "Projectavision" includes Projectavision and, unless the
context otherwise requires, all of its subsidiaries.
b. The term "COMO" includes G.L. Industries of Indiana, Inc. a/k/a Como
Products Corporation and, unless the context otherwise requires, all of its
subsidiaries.
c. "Intellectual Property Rights" shall mean all the rights relating to (a)
all inventions, invention disclosures, patent, investors, certificates, utility
models, industrial models, industrial designs, ▇▇▇▇▇ patents, patents of
importation and other government issued or granted indicia of invention
ownership, including without limitation any reissue, extension, division,
continuation or continuation-in-part applications throughout the world; (b) all
trade secrets and trade secret rights, arising under common law, state law and
laws of foreign countries; (c) all copyright and all other works of authorship,
whether or not copyrightable, throughout the world; and (d) all other mask works
rights.
d. "Subsidiary" means any corporation, company or other entity of which
more than 50% of the outstanding shares of stock entitled to vote for the
election of directors (other than shares of stock whose voting rights are
subject to restriction) are owned or controlled by either Party, directly or
indirectly, now or hereafter during the term of this Agreement. Any corporation,
company or other entity that would at the time be a Subsidiary of Projectavision
or COMO, as the case may be, by reason of the foregoing shall be considered a
Subsidiary for the purposes of this Agreement only so long as the ownership or
control, directly or indirectly, by Projectavision or COMO, as the case may be,
meets the conditions hereinabove set forth.
2. INTENTIONALLY LEFT BLANK
3. SPECIFIC PRODUCT ENGAGEMENTS
Exhibit 1 to this Agreement will outline the product prices, quantity,
description, part number (if available), and any other supplemental terms and
conditions which the Parties have agreed to. Additional exhibits to this
Agreement will be issued to reflect additional products and changes made to
prior exhibits.
4. CONFIDENTIAL INFORMATION
All information exchanges, developments, and other intellectual property
considerations which are deemed proprietary or confidential by either Party,
unless otherwise agreed to herein, shall be made pursuant to the Non-Disclosure
Agreement (NDA) between COMO and Projectavision effective March, 1996 herein
incorporated by reference. Such NDA shall be in effect for, and automatically
extended in all time periods through, the term of this OEM Basic Transaction
Agreement.
This provision shall survive the expiration, termination or cancellation of
this Agreement or any supplemental agreement issued hereunder.
5. INTENTIONALLY LEFT BLANK
2
6. TERM OF AGREEMENT
This Agreement shall become effective on the date of execution of the
Agreement by both Parties. This Agreement shall expire five (5) years after the
effective date of the Agreement and may be extended for additional period(s) of
time by mutual written consent of both Parties upon terms and conditions to be
negotiated. Immediately upon the expiration, termination, or cancellation of
this Agreement, each Party will return to the other Party confidential
information that was provided under this Agreement, unless otherwise mutually
agreed to by both Parties.
7. LANGUAGE
This Agreement and all purchase orders shall be in the English language.
The English language shall be controlling in all respects, and all versions of
this Agreement and purchase orders in any other language shall in no way be
binding upon the Parties or affect the interpretation of this Agreement or
purchase orders. All communications to be made under this Agreement or under any
purchase order shall be in English.
8. NOTiCES
Any notices required or permitted to be given under this Agreement or under
any purchase order shall be in writing and shall be deemed valid and sufficient
if delivered in person, or delivered by fax (provided the original is thereafter
promptly dispatched by regular mail) to the following:
To Projectavision: Projectavision, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To COMO: c/o LDM Technologies
1250 Maplelawn
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
3
9. ORDERING PROCEDURES
a. Purchase orders shall be released with a header note stating that the
order is released pursuant to the terms and conditions of this Agreement and any
other terms and conditions as mutually agreed by the Parties, such orders shall
reflect at a minimum, i) quantity, ii) product description, iii) unit price, iv)
extended price, v) requested delivery date(s), vi) carrier, vii) ship to
address, viii) ▇▇▇▇ to address, ix) specification/model number, and x) quotation
number.
b. All orders will be submitted to the following address:
COMO Products CorporatIon
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
c. COMO reserves the right to set a minimum order size if addressed in
quotation.
d. Terms or conditions reflected on the purchase order shall not apply. The
purchase order shall only be used as a tool to place orders with COMO and for
COMO to acknowledge the order. The terms of this Agreement shall apply.
e. At the time COMO delivers the ordered goods to the carrier,
Projectavision authorizes COMO to submit its invoice for the goods and
Projectavision shall reimburse COMO for the amounts specified on the invoice
pursuant to the terms and method of payments provision of this Agreement.
f. Projectavision authorizes COMO to make partial shipment of the goods.
Projectavision agrees to reimburse COMO for such partial shipments pursuant to
the terms and method of payment provision of this Agreement.
10. APPROVAL OF ORDERS
Projectavision will place its purchase order(s) for the by releasing its
order to the address, or fax identified within the "Ordering Procedures"
paragraph of this Agreement. When COMO accepts the contents of the order, COMO
will submit its acknowledgment form within ten (10) days after the receipt of
Projectavision's purchase order.
4
11. TERMS AND METHODS OF PAYMENTS
The terms of payment for items shipped under this Agreement shall be as
follows. All invoices are due and payable no later than sixty (60) days after
the date the goods are shipped. Notwithstanding the forgoing the maximum line of
credit extended hereunder shall be $1,000,000.00. Consequently, goods shall
not be shipped to Projectavision when the line of credit exceeds or will exceed
as a result of any shipment, $1,000,000.00; unless and until payments received
equal in value to the goods shipped. If the goods are delivered in installments,
Projectavision agrees to pay for each installment in accordance with the terms
of payment hereof. If Projectavision fails to make each payment when it is due,
in addition to any other remedies COMO may have, COMO reserves the right
withdraw credit and suspend or cancel peformance under any open purchase order,
refuse to accept any order, refuse to accept any further supplemental agreements
or orders, withhold shipment or allow Projectavision to make other arrangements
satisfactory to COMO which arrangements must made prior to the shipment under
any purchase order. Payment shall be made for the goods without regard to
whether Projectavision has made or may make any inspection of the goods.
Payments shall be sent to:
Como Products Corporation
Products Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
All payments made to COMO shall be in US dollars and shall reflect the COMO
invoice number(s). Each Party agrees to pay for their own bank charges
associated with electronic funds transfers.
Projectavision may not take any deductions or offsets of any kind from payments
due COMO for any reason what so ever, including, without limitation as a result
of other business relationships between Projectavision and COMO.
Mirror, Screen and Harness/Adapter
COMO will not be obligated to obtain, purchase, or pay for Mirror, Screen,
or Harness/Adapters except upon terms acceptable to COMO in its sole discretion.
12. TAXES AND FEES
The prices for the goods delivered under this Agreement do not include any
taxes, levies, import duties, and fees of any kind, now or hereafter enacted,
applicable to the goods sold pursuant to this Agreement. If any of the above
described taxes or charges are charged or can be charged to COMO, COMO will
invoice all such taxes or charges to Projectavision (exclusive of taxes based on
COMO's income) and Projectavision agrees to immediately remit payment to COMO,
unless Projectavision provides COMO for this Agreement or any subsequent
purchase order, a tax exemption certificate(s) or licenses acceptable to the
appropriate taxing authorities.
5
13. TRANSPORTATION COSTS
The prices for the goods delivered under this Agreement exclude all
transportation costs, including but not limited to freight, insurance and
special handling and packaging. These costs will be the responsibility of
Projectavision. COMO plans to make all shipments from COMO's point of shipment,
freight collect. Projectavision shall specify a common carrier of its choosing
for the shipment of goods and shall make arrangements with its common carrier to
receive the shipments from COMO's point of shipment. Projectavision agrees to
provide COMO the carrier(s) account number to allow COMO to ship freight
collect. COMO reserves the right to ship prepaid and invoice shipping charges.
14. TITLE AND DELIVERY
Title and risk of loss or damages to goods shipped will pass to
Projectavision upon COMO's tender of delivery of the goods to the Projectavision
designated carrier or the COMO chosen carrier and any loss or damage thereafter
shall be Projectavision's responsibility and shall not relieve Projectavision
from any of its obligations hereunder. COMO will pack the goods for shipment to
Projectavision using commercial practices for the type of goods being sold
pursuant to this Agreement and approved by Projectavision.
16. INSPECTION OF GOODS
Projectavision shall use best efforts to inspect all incoming shipments
within ten (10) days of receipt and agrees to furnish to COMO in writing within
said 10 days with any claim it may have for product deficiencies, shortages or
failures to meet the agreed specification. Projectavision's failure to make such
a claim will be deemed by COMO to constitute Projectavision's acceptance of the
goods provided however that not withstanding the forgoing, COMO expressly agrees
that Projectavision's failure to make such a claim shall not constitute a waiver
by Projectavision of any of its rights under this agreement including but not
limited to any warranty rights as covered within this Agreement. In the event
that Projectavision submits a claim to COMO involving incorrect materials,
defects in material, workmanship or specification errors, Projectavision shall
promptly return the affected goods to COMO's point of shipment, freight prepaid
and insured and COMO will, upon confirmation of the claim, promptly furnish
Projectavision with a written credit memorandum for the affected goods returned
and will ship to Projectavision replacement goods prepaid with an invoice. Any
materials being returned to COMO must be accompanied by a Return Material
Authorization (RMA) number assigned by COMO. COMO shall use reasonable efforts
to assign RMA number(s) within 24 hours of a request by Projectavision.
6
16. DELIVERY SCHEDULE
All delivery dates for goods which are set forth in the purchase order
issued pursuant to this Agreement are estimated shipment dates from COMO's point
of shipment and COMO will use reasonable efforts to meet these delivery dates.
COMO shall not be liable for any loss or expense (consequential or otherwise)
incurred by Projectavision or Projectavision's customers if COMO fails to meet
the specified delivery schedule. In the event that there is a possibility of a
considerable delay in the delivery of the goods, COMO will promptly notify
Projectavision and COMO will use its reasonable efforts to bring the delivery
schedule to a current status.
17. SPECIFICATION OF GOODS
COMO and Projectavision will mutually agree as to the specifications of the
good which will be delivered under any order pursuant to the terms of this
Agreement. The specifications will be identified in the purchase order and the
goods delivered will comply to the specifications, COMO may, at its sole
discretion and without notice to Projectavision, make any change to the goods
sold under a resulting purchase order issued to this Agreement which does not
affect the goods form, fit or function. If the change does affect form, fit, or
function, COMO agrees to notify Projectavision and COMO agrees not to ship any
goods which have been changed without Projectavision's approval. COMO agrees to
use reasonable efforts to notify Projectavision prior to COMO implementing any
changes which do not affect the good's form, fit or function.
18. INTENTIONALLY LEFT BLANK
19. FORCE MAJEURE
Neither Party shall be liable for any failure to perform, in whole, or in
part, any term of this Agreement any supplemental agreement or deliver any order
that is caused by the occurrence of any contingency beyond its control,
including, but not limited to, any labor dispute, strike, war, act of war,
insurrection, sabotage, riot, civil commotion, act of public enemy, epidemic,
accident, fire, storm, earthquake, explosion, flood, drought or any other
natural disaster, act of any governmental authority, judicial action or
transportation embargo, provided such Party has exercised ordinary care in the
prevention thereof, any such failure shall not be considered a breach of this
Agreement, any supplemental agreement or any order. Production and deliveries
many be allocated by COMO in a reasonable manner in the event of shortage of
goods.
7
20. PERSONAL INJURY INDEMNIFICATION
Neither Party shall be responsible for any death, damage, injury or loss
suffered or incurred during visits to its facilities by any employee or
Consultant of the other Party dispatched pursuant to this Agreement or any
supplemental agreement, except for any death, damage, injury or loss resulting
from the negligent act or omission of such Party, its agent, employee or
Consultant. Further, neither Party shall be responsible for any costs, expenses
or damages suffered or incurred by the other Party, or for any claim, judgment
or award against such other Party, or the defense thereof, arising out of any
actions, assistance or services of its employees or Consultants hereunder,
unless resulting from its own willful or grossly negligent act. Both Parties
agree to maintain general comprehensive liability, property damage and
automobile liability insurance, including contractual endorsement and products
hazardous coverage, in reasonable amounts covering the obligation set forth in
this Agreement and, upon request of the other Party, the one Party will provide
the other with a Certificate of Insurance indicating the amount of such
insurance.
21. WAIVER OF TERMS
Failure of either Party to enforce any term or condition of this Agreement
or supplemental agreement will not be deemed to be a waiver of such a term or
condition.
22. NON-ENFORCEMENT OF TERMS
Should any clause or provision of this Agreement or any supplemental
agreement be judicially declared invalid, unenforceable or void, such
declaration shall not have the effect of invalidating or voiding the remainder
of this Agreement or any supplemental agreement, and the remaining provisions of
this Agreement and any other supplemental agreement shall continue in full force
and effect as if such invalid, unenforceable or void provision had not been
included herein or therein.
23. ASSIGNMENTS
Neither Party may assign this Agreement or any other supplemental Agreement
in whole or in part without the prior written consent of the other Party. Any
purported assignment in violation of this provision shall be void.
24. PUBLICITY
(A) Neither Party shall publicly announce or otherwise disclose the terms
or existence of this Agreement or any supplemental agreement, advertise or
release any publicity in regards to this Agreement or any supplemental agreement
without securing the written consent of the other Party. This provision shall
survive the expiration, termination or cancellation of this Agreement or any
supplemental agreement issued hereunder subject to the provisions of section 24
(b) hereof.
(B) Notwithstanding the foregoing, COMO acknowledges that Projectavision is
a public company and agrees that Projectavision can:
8
1) issue a press release disclosing the entering into of this
agreement subsequent to the execution hereof, and
2) from time to time disclose the existence of this agreement in
public filings in accordance with applicable federal and state securities
laws. Projectavision agrees to consult with COMO prior to issuing the
aforementioned press release.
25. CANCELLATION OF ORDERS
Projectavision may cancel without cause all or any part of the undelivered
portion of its purchase order(s) issued, pursuant to this Agreement by providing
60 days advance written notice to COMO if the units being canceled are standard
assemblies and COMO is capable of using the canceled product for other COMO
customers. In the event that the units being canceled are units which have been
special ordered specifically for Projectavision and can not reasonably be used
by other COMO customers, then cancellation charges shall be negotiated between
the Parties.
26. TERMINATION
In the event of any material breach of this Agreement by either Party, if
such breach is not corrected within thirty (30) days after written notice is
given to the Party in breach by the Party not in breach, then this Agreement may
be terminated immediately by written notice to the Party in breach by the Party
not in breach. Unless otherwise indicated in writing by the Party not in breach,
upon termination of this Agreement, all activities under this Agreement shall
terminate.
27. DISPUTE RESOLUTION
In the event of any dispute relating to this Agreement any supplemental
agreement, or any order and if the individuals designated by the Parties are
unable to resolve such dispute through mutual agreement, the Parties agree that
the dispute shall be addressed in the following manner before either Party
proceeds with formal legal proceedings.
Either Party may initiate the dispute resolution process by sending formal
notice of the dispute to the other Party. Within ten (10) days of receipt of
such notice, the Parties agree that each of them shall designate a senior
executive to address the dispute. These two senior executives shall endeavor to
resolve the dispute through good faith negotiation. In the event that the senior
executives are unable to agree to a resolution of the dispute within (30) days
of the receipt of the aforementioned notice of the dispute or any additional
extension of time which in mutually agreed to by the Parties, either Party may
elect to proceed with appropriate legal proceedings. Notwithstanding the
foregoing, neither Party shall be bound to follow the above procedures with
respect to disputes relating to Confidential Information, Inventions or
Intellectual Property Rights.
9
28. PATENT INDEMNITY
COMO will defend any suit or proceeding brought against Projectavision
insofar as such suit or proceeding is based on a claim that any goods
manufactured and supplied by COMO to Projectavision pursuant to this agreement
constitute direct infringement of any duly issued United States patent and COMO
shall pay all damages and costs finally awarded therein against Projectavision,
provided that COMO is promptly informed and furnished a copy of each
communication, notice or other action relating to the alleged infringement and
is given authority, information and assistance (at COMO's expense) necessary to
defend or settle said suit or proceeding. COMO shall not be obligated to defend
or be liable for costs or damages if the infringement arises out of compliance
with Projectavision specifications for incorporation of Projectavision
technology, designs, hardware and/or software in the goods, or from a
combination with, an addition to, or a modification of the goods after delivery
by COMO, or from use of goods, or any part thereof, in the practice of a
process, COMO's obligation hereunder shall not apply to any infringement
occurring after Projectavision has received notice alleging the infringement
unless COMO has given written permission for such continuing infringement.
If any goods manufactured and supplied by COMO to Projectavision shall be held
to infringe any United States patent and Projectavision shall be enjoined from
using the same, COMO will exert all reasonable commercial efforts, at its option
and at its expense, i) to procure for Projectavision the right to use such goods
free of any liability for patent infringement or ii) to replace such goods with
a non-infringing substitute otherwise complying substantially with all the
requirements of this Agreement or iii) refund the purchase price and the
transportation costs of such goods.
If the infringement by Projectavision is alleged prior to completion of delivery
of the goods under this Agreement, COMO may decline to make further shipments
without being in breach of this Agreement, and provided COMO has not been
enjoined from selling said goods to Projectavision COMO agrees to supply said
goods to Projectavision at Projectavision's option, whereupon the patent
indemnity obligations herein stated with respect to COMO shall reciprocally
apply with respect to Projectavision, this indemnity by Projectavision applying
to, but not limited to all damages awarded under 35 U.S.C. Sections 284 and 285.
If any suit or proceeding is brought against COMO based on a claim that the
goods manufactured by COMO and supplied to Projectavision in compliance with
Projectavision specifications or by any reason of the incorporation of
Projectavision technology, designs, hardware and/or software in the goods
infringe any duly issued United States patent, then the patent indemnity
obligations herein stated with respect to COMO shall reciprocally apply with
respect to Projectavision.
10
THE SALE BY COMO OF PRODUCTS IN ACCORDANCE WITH THE TERMS SETFORTH HEREUNDER
DOES NOT GRANT TO, CONVEY OR CONFER UPON PROJECTAVISION OR PROJECTAVISION
CUSTOMERS, OR UPON ANYONE CLAIMING UNDER PROJECTAVISION, A LICENSE, EXPRESSED OR
IMPLIED UNDER ANY PATENT RIGHTS OF COMO COVERING OR RELATING TO ANY COMBINATION,
MACHINE OR PROCESS, WITH THE EXCEPTION AS PROVIDED IN THE "LICENSING IN SPECIFIC
FIELD OF USE" PARAGRAPH, IN WHICH SAID ITEMS MIGHT BE OR ARE USED.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO FOR
PATENT INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, IN REGARD THERETO.
29. WARRANTIES BY COMO
THE FOLLOWING ARE IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED CONDITION OR WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER WARRANTY
OBLIGATION ON THE PART OF COMO.
COMO shall extend the following warranty for the goods delivered to
Projectavision:
For the period stated within the COMO quotation after COMO delivers the DLP
subsystem to Projectavision, COMO shall warrant the goods against faulty
workmanship or the use of defective materials and that the goods will conform to
the mutually agreed to written specification. COMO warrants that at the time of
delivery, COMO has title to the goods free and clear of any and all liens and
encumbrances. If such goods fail to conform to the warranty, COMO's sole and
exclusive maximum liability shall be (at COMO's option) to either repair,
adjust, replace the goods, or credit Projectavision account, for faulty goods
returned by Projectavision to COMO during the applicable warranty, provided
that:
i) COMO is promptly notified in writing upon discovery by Projectavision
that such goods failed to conform to the terms of the written to the terms
of the written specification with a detailed explanation of any alleged
deficiencies,
ii) Projectavision receives a Return Material Authorization Number from
COMO,
iii) such goods are returned prepaid to the address specified by COMO,
iv) COMO examination of the goods confirms that the alleged deficiencies
actually exist and were not caused by accident, misuse, neglect,
alteration, improper installation, unauthorized repair or improper testing.
11
COMO hall have a reasonable period of time to make such repairs or replace
such goods. Goods repaired or replaced under warranty shall be returned to
Projectavision at COMO's expense. Continued use or possession of the goods
after expiration of the applicable warranty period stated above shall be
conclusive evidence that the warranty is fulfilled to the full satisfaction
of Projectavision.
COMO'S WARRANTIES AS HEREINABOVE SET FORTH SHALL NOT BE ENLARGED,
DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OR
GROW OUT OF, COMO'S RENDERING OF TECHNICAL ADVICE AND/OR SERVICE IN
CONNECTION WITH PROJECTAVISION'S ORDER OF THE GOODS FURNISHED HEREUNDER.
30. RETURNS
For goods being returned to COMO on which COMO cannot find fault with the
unit or COMO "Can Not Duplicate" (CND) the system(s) described by
Projectavision, then COMO will charge back to Projectavision and Projectavision
agrees to pay COMO a predetermined CND cost per unit evaluation charge.
All returned goods must have the bar code affixed to the goods. If COMO
determined that the bar code is missing or has been tampered with, warranty will
not be applicable to the goods and the goods will be immediately returned to
Projectavision without further action.
All goods required to be returned to COMO for either repair and/or warranty
action shall be consolidated at Projectavision for return to COMO at a frequency
no greater than once per week, unless otherwise agreed to by the Parties. Goods
will be consolidated and returned to Projectavision once a week to a single
point of receipt via ground transportation. All out-of-warranty returned goods
shall be addressed under a quotation from COMO.
Goods being returned for warranty action shall receive a sixty (60) day warranty
from the date of shipment from COMO or the balance of the remaining original
warranty period associated with the goods, whichever is greater.
12
31. LIMITATION OF LIABILITY
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR ANY SUBSEQUENT
MODIFICATION TO THIS AGREEMENT, THE LIABILITY OF EITHER PARTY, IF ANY, TO THE
OTHER PARTY AND THE SOLE AND EXCLUSIVE REMEDY HEREUNDER FOR EITHER PARTY FOR
DAMAGES OR ANY CLAIM OF ANY KIND WHATSOEVER WITH RESPECT TO THIS AGREEMENT, AND
ANY SUPPLEMENTAL AGREEMENT, FOR PRODUCTS OR WITH RESPECT TO ANY OF THE GOODS
COVERED THEREBY, AND REGARDLESS OF THE LEGAL THEORY OR THE DELIVERY OR
NON-DELIVERY OF PRODUCTS, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF
THE GOODS WITH RESPECT TO WHICH SUCH CLAIMS ARE MADE. UNDER NO CIRCUMSTANCES
WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF REMOVAL AND
REINSTALLATION OF ITEMS, LOSS OF GOODWILL, LOSS OF REVENUES OR PROFITS, LOSS OF
USE, INJURY TO PERSONS OR PROPERTY) ARISING OUT OF ANY BREACH OF THIS AGREEMENT
WHETHER SUCH DAMAGES ARE LABELED IN TORT, CONTRACT, OR INDEMNITY, EVEN IF COMO
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
32. REGULATORY APPROVAL
Projectavision shall be responsible for obtaining any required governmental
and/ or United States of America governmental approvals that may necessary under
each country's applicable laws.
33. CHANGES
Subject to the provisions of section 17 hereof, once COMO acknowledges and
accepts negotiated purchase order for the specific goods, no changes shall be
authorized unless authorized representatives of both Parties mutually agree in
writing to all aspects of the requested change.
34. BRANDING, ADVERTISING, TRADEMARKS AND TRADE NAMES
Both Parties acknowledge and agree that company trademarks and trade names
are paramount to the identification of the product or products being sold in the
marketplace. Each Party agrees that they will have no right, claim or interest
in any trademark or trade name which is owned by the other Party.
Projectavision will ensure that neither the COMO name nor the Trademarks
are displayed in any manner which may imply:
o that Projectavision is owned or controlled by COMO, in whole or in part;
o that COMO is not the exclusive owner of COMO'S name and ▇▇▇▇;
o that COMO and Projectavision are not separate and Independent entities.
13
In order to comply with the above, whenever Projectavision's name appears
in Projectavision documentation or advertising, together with the name "Como
Products Corporation" (and/ or the Trademarks), Projectavision's name must
appear first and must be more prominent than either the name "Como Products
Corporation" or the Trademarks. COMO's name must be spaced from Projectavision's
name by a sufficient distance to avoid any suggestion that the two companies are
not separate and independent. Whenever the Trademarks are displayed, they must
be located near the name "Como Products Corporation" in order to preserve a
close association of the COMO name with the Trademarks. COMO ownership of the
Trademarks must be expressly stated in all advertising and documentation, for
example, in a footnote.
Each item that Includes "COMO", the name "Como Products Corporation", or
the Trademarks must be submitted to COMO for approval in advance of its release
or distribution.
COMO's name and Trademarks are to be associated with COMO, and with the
COMO products and services only, and are not to be associated with
Projectavision. For example, COMO's name, and the Trademarks must not appear on
Projectavision's business cards or letterheads, unless COMO ownership and its
association with the products or services also appears on the same item.
In the event that COMO adopts a written general policy with regard to the
display of COMO logos on systems or higher level assemblies contain
Projectavision; then Projectavision shall implement such policies and shall
require it of customers who are value added Systems Suppliers, or similar value
added resellers to implement such policies. If immediate implementation of such
policies would cause an unreasonable financial burden on Projectavision or any
of its customers, COMO will cooperate with Projectavision and/or any such
customer to phase in such policies in a manner to alleviate the financial impact
of compliance.
Projectavision agrees that it will inform COMO of any possible trademark
infringement which comes to its attention. Projectavision will deliver to COMO
when requested any papers and assist in conducting any legal proceedings at
COMO's expense which COMO shall deem necessary, in order to protect its
trademarks and trade names.
Projectavision also agrees that it will not remove or alter any tag, label
or other identifying marks placed by COMO on the products.
35. APPLICABLE LAW AND JURISDICTION
This Agreement and all matters connected with its performance shall be
governed and construed in accordance with the laws of the State of New York,
USA, without giving effect to such state's conflict of laws principles. Each
Party hereby irrevocably consents to the jurisdiction of the federal and state
courts located in New York, NY, USA.
14
This Agreement, together with any supplemental agreements issued and
accepted hereunder, and the NDA, sets forth the entire understanding and
agreement between the Parties as to the subject matter hereof and supersedes all
previous communications, representations or agreements, either oral or written,
with respect to the subject matter hereof. Neither Party shall be bound by any
modification of this Agreement or supplemental agreement unless such
modification is in writing and signed by an authorized representative of the
Party to be bound thereby. No course of dealing or usage of trade or course of
performance shall be relevant to explain or supplement any term expressed in
this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives effective as of the latter of the dates
signed below.
COMO PRODUCTS CORPORATION PROJECTAVISION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- ----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO Title: President/COO
Date: 6/25/96 Date: June 24, 1996
15