SPLASH - XEROX
OEM PURCHASE
AGREEMENT
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TABLE OF CONTENTS
I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. PRODUCT DEVELOPMENT . . . . . . . . . . . . . . . . . . . . . . . . . 7
III. PURCHASE AND SALE OF SPLASH PRODUCT. . . . . . . . . . . . . . . . . 10
IV. DOCUMENTATION AND SUPPORT . . . . . . . . . . . . . . . . . . . . . . 14
V. QUALITY ASSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
VI. TERM AND TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . 18
VII. MANUFACTURING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
VIII. RIGHTS AND LICENSES . . . . . . . . . . . . . . . . . . . . . . . . 20
IX. SPLASH PRODUCT CHANGES. . . . . . . . . . . . . . . . . . . . . . . . 25
X. AGENCY APPROVAL AND SAFETY . . . . . . . . . . . . . . . . . . . . . . 27
XI. WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
XII. MAINTENANCE SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . 30
XIII. TRAINING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
XIV. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
XV. CONFIDENTIAL AND PROPRIETARY INFORMATION. . . . . . . . . . . . . . . 31
XVI. LIMITATION OF LIABILITY. . . . . . . . . . . . . . . . . . . . . . . 33
XVII. EXPORT CONTROL. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
XVIII. INDEPENDENT PRODUCT DEVELOPMENT. . . . . . . . . . . . . . . . . . 34
XIX. FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
XX. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXI. POINTS OF CONTACT. . . . . . . . . . . . . . . . . . . . . . . . . . 35
XXII. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
XXIII. AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
XXIV. ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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XXV. [*]
XXVI. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
XXVII. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
XXVIII. SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
XXIX. ETHICAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . 36
XXX. ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
XXXI. NONPUBLICITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
XXXII. CONTROLLING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . 38
XXXIII. REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . 38
XXXIV. INTEGRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
XXXV. RELATIONSHIP OF THE PARTIES . . . . . . . . . . . . . . . . . . . . 39
ATTACHMENT I-SPLASH PRODUCT . . . . . . . . . . . . . . . . . . . . . . . 54
ATTACHMENT II-SPLASH TRADEMARK GUIDELINES. . . . . . . . . . . . . . . . . 55
ATTACHMENT III-AURORA FEATURES LIST. . . . . . . . . . . . . . . . . . . . 56
ATTACHMENT IV UPCC TABLE AND OPTION PRICING. . . . . . . . . . . . . . . . 85
ATTACHMENT V-PROTOTYPE DELIVERY. . . . . . . . . . . . . . . . . . . . . . 87
ATTACHMENT VI-QCD TABLE. . . . . . . . . . . . . . . . . . . . . . . . . . 88
ATTACHMENT VII-XEROX DELIVERABLES TO SPLASH. . . . . . . . . . . . . . . . 93
ATTACHMENT VIII-SPLASH DELIVERABLES TO XEROX . . . . . . . . . . . . . . . 94
ATTACHMENT IX-AGENCY APPROVAL AND CERTIFICATION LIST . . . . . . . . . . 102
ATTACHMENT X-SPLASH END USER LICENSE AGREEMENT . . . . . . . . . . . . . 110
ATTACHMENT XI-MULTINATIONAL PROCESS CERTIFICATION GUIDELINES
FOR END ITEMS AND ACQUIRED PRODUCTS. . . . . . . . . . . . . . . . . . . 113
ATTACHMENT XII-XEROX QUALITY ASSURANCE . . . . . . . . . . . . . . . . . 114
ATTACHMENT XIII-CONTACT LIST . . . . . . . . . . . . . . . . . . . . . . 115
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This Agreement is made and entered into between Splash Technology, Inc., a
corporation organized under the laws of the State of Delaware, with its
principal offices at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(hereinafter referred to as "Splash") and Xerox Corporation, a corporation
organized under the laws of the State of New York, U.S.A., with an office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Xerox") and such Xerox Affiliates (as defined below) as agreed in writing to be
bound by the terms and conditions hereof, and shall be effective as of January
__, 1998 ("Effective Date"), upon the terms and conditions set forth below.
I. DEFINITIONS
1.01 "CONFIDENTIAL INFORMATION" shall mean any information disclosed by one
party to the other, which, if in written, graphic, machine-readable or other
tangible form is marked as "Confidential" or "Proprietary", or which, if
disclosed orally or by demonstration, is identified at the time of initial
disclosure as confidential and reduced to writing and marked "Confidential" or
"Proprietary" by the disclosing party and sent to the non-disclosing party
within [*] of such disclosure for review and acceptance thereof. Without
limiting the foregoing, the Splash Software shall be considered to be Splash's
Confidential Information and the Xerox Software shall be considered to be Xerox'
Confidential Information.
1.02 "DFE" shall mean an electronic device that accepts electronic files
via, including among other means, the network and local connections,
interprets the files to raster format and sends them to a marking engine for
printing. The files are typically Page Description Language such as [*]. In
addition, video information, if available, can be received from the marking
engine to enable scanning from the copier platen.
1.03 "DELIVERABLES" shall mean deliverables of a party to be provided to the
other party hereunder. Xerox deliverables are listed in Attachment VII and
Splash deliverables are listed in Attachment VIII.
1.04 "DERIVATIVE WORKS" shall have the meaning ascribed to it under the
United States Copyright Law, Title 17 U.S.C. Sec. 101 ET. SEQ., as interpreted
under applicable case law.
1.05 "DEVELOPED TECHNOLOGY" shall mean Technology developed by a party within
the scope of this Agreement and after the Effective Date of this Agreement.
1.06 "INTELLECTUAL PROPERTY RIGHTS" shall mean all rights in, to, or arising
out of: (i) any U.S., or foreign patent or any application therefor and any and
all provisionals, reissues, divisions, continuations, renewals, extensions and
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continuations-in-part thereof; (ii) inventions (whether patentable or not in any
country), invention disclosures, improvements, trade secrets, proprietary
information, know-how, technology and technical data; (iii) copyrights,
copyright registrations, mask works, mask work registrations, and applications
therefor in the U.S. or any foreign country, and all other rights corresponding
thereto throughout the world.
1.07 "IOT" shall mean Image Output Terminal or marking device [*], to be
incorporated into the Xerox Product.
1.08 "JOINTLY DEVELOPED TECHNOLOGY" shall mean Technology developed jointly
by the parties after the Effective Date of this Agreement. Except for
copyrightable subject matter, determination of Jointly Developed Technology
shall be made under the rules of inventorship of United States patent law,
whether or not such Technology is patentable. Excluding copyrightable subject
matter, each party shall be free to use the Jointly Developed Technology without
accounting to the other party, except as provided for in this Agreement.
1.09 "LAUNCH DATE" shall mean the date Xerox, Xerox Canada Inc., or Xerox
Limited first generally offers the System, [*], to end user customers by
placement of the System on the Xerox, Xerox Canada Inc., or Xerox Limited
commercial price list or its equivalent.
1.10 "OBJECT CODE" shall mean computer code in executable format including
associated data files required for intended operation.
1.11 "PROTOTYPES" shall mean prototypes of the Splash Product, including
hardware (working models of any equipment suitable for test by Xerox, whether
manufactured with soft or hard tooling) and software. Unless otherwise
specifically agreed by the parties in writing, all such Prototypes shall conform
in all material respects to applicable specifications.
1. 12 "REGULATORY AGENCY" shall mean any regulatory agency or other body,
governmental or private, including but not limited to agencies regulating
product safety and/or electromagnetic emissions, the approval of which is
required by Xerox or the government of any jurisdiction in which Xerox elects to
market the Splash Product. As additionally detailed in 10.02, examples of
non-governmental regulatory agencies, the standards of which Splash shall be
obligated to have the Splash Product meet, shall include Underwriter's
Laboratory ("UL") and the Canadian Standards Association ("CSA"). The complete
list of Agency Approvals is contained in Attachment IX.
1.13 "SPLASH PRODUCT" shall mean the DFE [*] for Xerox' IOT as more fully
described in Attachment I, including the Splash Software, Xerox Software, Third
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Party Software, hardware, associated spares, listed therein and modifications,
enhancements and improvements thereto which are made pursuant to Article IX
herein.
1.14 "SPLASH SOFTWARE" shall mean the Splash software to be incorporated into
the Splash Product, including but not limited to the Splash Software listed in
Attachment I.
1.15 "SPLASH UNDERLYING TECHNOLOGY" shall mean (i) Technology which was owned
by or licensed to Splash by a third party prior to the Effective Date of this
Agreement and (ii) Technology developed solely by Splash after the Effective
Date but outside the scope of this Agreement.
1.16 "SYSTEM" shall mean a [*] copier and printer for [*] applications or
directly related applications, which is the intended combination of the Xerox
Product with the Splash Product and which is offered for sale or lease to
customers of Xerox and Xerox Affiliates.
1.17 "SYSTEMIC DEFECT" shall mean a defect not due to a fault of Xerox, a
Xerox Affiliate, or the IOT, that, during the term of this Agreement or the
warranty period applicable to Splash Products in the field, whichever is longer,
causes the Splash Product to fail to conform in all material respects to the
specifications set forth in Attachment I and which occurs in identical or
substantially similar form or from a substantially similar cause in at least (i)
[*] of the field population of Splash Product or (ii) [*] of the field
installations during a [*] period.
1.18 "TECHNOLOGY" shall mean all technology, including all know-how,
techniques, design rules, trade secrets, inventions (whether or not patented or
patentable), algorithms, routines, software, files, data-bases, works of
authorship, processes, devices and hardware.
1.19 "THIRD PARTY SOFTWARE" shall mean software licensed by a third party to
Splash (including, without limitation, any software licensed by Splash from a
Postscript provider and incorporated into the Splash Product or any Splash
Deliverable.
1.20 "XEROX" shall only mean Xerox Corporation.
1.21 "XEROX AFFILIATES" shall mean Xerox Canada Inc., Xerox Limited, and Fuji
Xerox Co. Ltd., and any entity, which is 50% or more, owned directly or
indirectly by Xerox Corporation or Xerox Limited.
1.22 "XEROX PRODUCT" shall mean the Xerox software and IOT provided by Xerox
that when combined with the Splash Product completes the System.
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1.23 "XEROX SOFTWARE" shall mean the Xerox software to be incorporated into
the Splash Product, including but not limited to [*].
1.24 "XEROX UNDERLYING TECHNOLOGY" shall mean (i) Technology which was owned
by or licensed to Xerox by a third party prior to the Effective Date and
(ii) Technology that is developed solely by Xerox after the Effective Date but
outside the scope of this Agreement.
II. PRODUCT DEVELOPMENT
2.01 PROTOTYPE DEVELOPMENT AND DELIVERY
(a) Splash shall use all reasonable efforts to develop and deliver to
Xerox the Splash Deliverables and the Prototypes in accordance with the schedule
and in the quantities set forth in Attachment V. Splash's obligation under this
Section 2.01(a) is expressly conditioned upon Xerox delivering to Splash all
Xerox Deliverables in accordance with the schedule and in the quantities set
forth in Attachment VII.
(b) In the event that either party determines that it shall be unable
to meet any deadline hereunder for delivery of Deliverables or Prototypes, it
shall promptly notify the other party of such fact. The parties shall, in good
faith, agree on a revised date for delivery. If after such good faith
negotiations the parties are unable to agree on a revised date and more than [*]
have passed from the date of the applicable missed deadline, and the delay is
not due to any fault of the non-late party, the non-late party shall have the
right to terminate this Agreement effective immediately upon notice to the other
party; provided that such notice is given within [*] after the date of the
applicable missed deadline. If this Agreement is terminated in accordance with
this Section 2.01(b), then (i) if the terminating party is Xerox, Splash shall
have no further liability to Xerox; and (ii) [*]. Such payment shall be
Splash's sole remedy under this Section.
(c) All Prototypes and other Splash Deliverables shall be delivered
C.I.F. Xerox' designated facility in the contiguous 48 states or
the District of Columbia. Splash shall notify Xerox, for
acceptance testing purposes, at least [*] in advance of the
proposed delivery of any Splash Deliverable.
(d) [*]
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2.02 DEVELOPMENT WORKSHOPS AND CHANGES
(a) The parties shall, during the development work, meet as mutually
agreed to discuss the development of the Splash Product ("Development
Workshops"). In addition, either party may request a meeting upon not less than
[*] notice to the other party and such other party shall use its commercially
reasonable efforts to accommodate such requests. Such meetings shall be held at
the facility of the non-requesting party unless the parties otherwise agree.
(b) Either party may request changes to the specifications for the
Splash Product and the non-requesting party shall not withhold its agreement to
such changes provided that the modifications do not materially increase either
party's obligations under this Agreement and do not negatively affect the Form,
Fit, Function, Compatibility, schedule, specification or cost (as set forth in
Section 9.01) of the Splash Product, except as set forth in Section 9.01. If
the requested modifications would materially increase any such obligations
including, without limitation, Splash's cost or work effort, Splash and Xerox
shall negotiate in good faith to agree on terms (including, without limitation,
equitable adjustments in schedule and NRE payments set forth in Section 2.04
below) under which such changes shall be incorporated into the specifications
for the Splash Product. Any changes to such specifications shall be made only
upon written agreement of both parties.
2.03 ACCEPTANCE TESTING - Upon delivery of any Splash Deliverable(s) or
Prototype or modifications thereof to Xerox, Xerox shall have a period of thirty
(30) days to test to insure that such Splash Deliverable(s) or Prototype or
modifications thereof conform in all material respects with the specifications
for such Splash Deliverable(s) or Prototypes set forth in Attachment VIII
according to the acceptance test set forth in Attachment VI. In the event that
Xerox determines that such Splash Deliverable or Prototype fails to conform in
all material respects with such specifications, Xerox shall, within the test
period set forth above, notify Splash of such Splash Deliverable's or
Prototype's nonconformance by submitting to Splash a statement of material
nonconformance specifying, in reasonable detail, the manner and means by which
such Splash Deliverable's or Prototype's fails to conform to its specification.
Upon receipt of such statement, Splash shall use all commercially reasonable
efforts to promptly correct such nonconformance and resubmit such Splash
Deliverable or Prototype to Xerox for testing. Xerox shall test the redelivered
Splash Deliverable or Prototype as set forth in this Section 2.03. In the event
any Splash Deliverable or Prototype shall fail to conform in all material
respects to the applicable specifications for same after [*]. In the event
Xerox shall fail to notify Splash of any nonconformance of a Splash Deliverable
or Prototype within [*] after delivery of same, such Splash Deliverable or
Prototype shall be deemed accepted by Xerox. In the event the parties
materially modify the Splash
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Product (including the Splash Software) to incorporate a significant new
feature, or to correct material deficiencies found in the Splash Product, Xerox
may, at its option, require such Splash Product to be resubmitted to the
acceptance testing described in this Section 2.03.
2.04 DEVELOPMENT PAYMENTS
[*]
2.05 INTELLECTUAL PROPERTY
(a) Subject to the provisions of Section 2.05(d) below, Splash shall
own all right, title and interest in and to, including without limitation all
Intellectual Property Rights therein and thereto (i) Splash Underlying
Technology and (ii) Developed Technology created solely by Splash.
(b) Subject to the provisions of Section 8.04 (d), Xerox shall own
all right, title and interest in and to, including without limitation all
Intellectual Property Rights therein and thereto (i) Xerox Underlying Technology
and (ii) Developed Technology created solely by Xerox.
(c) Subject to the provisions of Section 2.05(d) below, Jointly
Developed Technology shall be owned jointly by Splash and Xerox under this
Agreement. Each party shall disclose Jointly Developed Technology to the other
party and cooperate with the other to file patent applications thereon. Xerox
shall prepare and file U.S. patent applications on Jointly Developed Technology
at Xerox' expense, unless otherwise agreed. The parties shall share equally in
the cost of any foreign patent filings on Jointly Developed Technology which the
parties mutually agree to file. In the event the parties fail to agree on the
filing of a patent application on Jointly Developed Technology, either party, at
its sole expense, may file a patent application on such Jointly Developed
Technology. Each party shall have the right at its own expense to exploit
(including the right to license and sublicense) Jointly Developed Technology
without the consent of or the obligation to account to the other party for
profits therefrom. Jointly Developed Technology shall be considered
Confidential Information of both Splash and Xerox.
(d) Notwithstanding subsections (a) and (c) above, Xerox shall own
Derivative Works of Xerox Software created by Splash. Splash hereby irrevocably
transfers, conveys and assigns to Xerox all of Splash's right title and interest
in and to any Derivative Works of Xerox Software created by Splash hereunder,
including without limitation any copyright therein and thereto. Splash agrees
to take such additional steps, at the expense of Xerox, as may be reasonably
necessary to effect the foregoing assignment. Under this Agreement, Xerox shall
not make any Derivative Works of Splash Software.
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(e) Xerox hereby grants to Splash under all of Xerox' Intellectual
Property Rights to the extent required for delivery of the Splash Product solely
for the purpose of developing and supplying the Splash Product to Xerox and
Xerox Affiliates a fully paid up, royalty free, worldwide, nonexclusive, right
and license to make and have made, use, offer for sale and have offered for
sale, import and have imported, reproduce and have reproduced and distribute the
Splash Product directly to Xerox and Xerox Affiliates approved by Xerox
hereunder in Section 3.01 (a).
(f) Splash hereby grants to Xerox under all of Splash's Intellectual
Property Rights, a fully paid-up, royalty free, worldwide, non-exclusive right
and license to use and reproduce Splash Software solely as necessary for and
only in connection with development of the System.
(g) Splash hereby grants to Xerox under all of Splash's Intellectual
Property Rights in and to the PPD files provided by Splash to Xerox hereunder a
fully paid-up, royalty free, worldwide, perpetual, non-exclusive right and
license to use, reproduce, prepare Derivative Works of, and distribute the same
and Derivative Works thereof. Notwithstanding anything to the contrary herein,
Xerox shall own all right, title and interest in and to the Derivative Works of
such PPD files created by Xerox pursuant to this Section 2.05 (g).
2.06 COPYRIGHT NOTICE - To the extent that Splash incorporates Xerox
Software in or with the Splash Product, Splash shall include the following
copyright notice: "Copyright -C- Xerox Corporation, XXXX" in the same place in
the software that Splash includes other third party copyright notices,
including without limitation the "About Box" setting forth the programs for
which the copyright is claimed. Splash also agrees to reproduce any proprietary
notices contained in Xerox Software in any copies thereof made by Splash.
III. PURCHASE AND SALE OF SPLASH PRODUCT
3.01 PURCHASE RIGHTS
(a) During the term of this Agreement, Xerox and Xerox Affiliates
[*] may purchase from Splash, and Splash shall sell to Xerox [*], the Splash
Product for resale or lease to Xerox' customers and Xerox Affiliates and
their customers, directly or indirectly.
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(b) [*]
(c) [*]
(d) [*]
3.02 PRICES
(a) [*]
(b) [*]
(c) [*]
(d) [*]
(e) [*]
(f) [*]
3.03 FORECASTS, LEAD TIMES, AND PURCHASE ORDERS - Xerox, or any Xerox
Affiliates which have been authorized by Xerox, shall place orders for Splash
Products with Splash [*], setting forth their firm and fixed order for the
succeeding [*] period (the "Fixed Order Period"). In addition, Xerox shall
set forth a non-binding estimate of its demand for Splash Products for the
succeeding [*] period following the Fixed Order Period. Such forecast shall
set forth quantities of the Splash Product that reasonably reflect Xerox' own
internal estimates of demand for the Systems taking into account Xerox' then
present inventory of Splash Product. Xerox and Xerox Affiliates approved by
Xerox pursuant to Section 3.01(a) shall place an order for a unit of Splash
Products by delivering to Splash its designated order form for such unit (an
"Order"). [*] Such Order shall set forth the configuration being purchased.
In the event Splash is unable to deliver any Splash Product on the date set
forth in an Order where the Order is received at least [*] in advance of such
date (the "Standard Lead Time"), Splash shall within [*] of the receipt of
such Order notify Xerox of this fact and the date on which it shall deliver
such Splash Product. If Splash fails to notify Xerox of its inability to
deliver any Splash Product on the date set forth in an Order within [*] of
the receipt of an Order that provided the Standard Lead Time, Splash shall
be deemed to have agreed to such delivery date. Xerox shall use commercially
reasonable efforts to issue Orders that provide for the Standard Lead Time.
Splash shall use commercially reasonable efforts to fulfill on a timely basis
Xerox' Orders which do not provide for the Standard Lead Time. Splash shall
confirm of receipt of such Orders within [*] of receipt thereof, and such
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Orders shall be deemed accepted if Splash fails to notify Xerox within [*] of
its rejection of the delivery date set forth therein.
3.04 PAYMENT --
(a) Purchases of the Splash Product made hereunder shall be paid
for by bank transfer or written check within [*] following the receipt of
Splash's invoice by Xerox. Splash shall issue its invoice for Splash
Products to Xerox upon the shipment of Splash Products to Xerox. Any amounts
not paid within such [*] period shall be subject to interest at the rate of
[*] per month or the maximum rate permitted by applicable law, whichever is
less.
(b) All payments by Xerox and Xerox Affiliates to Splash shall be
made free and clear of, and without reduction for, any sales, value added or
withholding taxes imposed by a foreign government. Any such taxes, which are
otherwise imposed on payments to Splash under this Agreement, shall be the sole
responsibility of Xerox. Upon request by Splash, Xerox shall provide Splash
with official receipts issued by the appropriate taxing authorities or such
other evidence as is reasonably available within [*] of the request for same.
In the event Xerox is unable to provide such tax receipts Xerox shall indemnify
Splash from and against any costs or expenses arising out of the need to respond
to any inquiry by taxing authorities attempting to establish that such taxes
have been paid.
3.05 SHIPPING -- [*]
3.06 TITLE AND RISK OF LOSS - Title and risk of loss to Splash Products,
other than title to the Splash Software, shall pass to Xerox or a Xerox
Affiliate upon [*]. In the event that, for any reason, Splash is unable to
successfully deliver any Splash Product for reasons other than the fault of
Xerox or a Xerox Affiliate, [*].
3.07 EARLY DELIVERY - Xerox and Xerox Affiliates reserve the right, at their
option and without liability, to:
(a) Refuse to accept delivery of Splash Product if delivery is made
more than [*] in advance of the agreed delivery date and, if so delivered to
return such Splash Product to Splash at Splash's expense, for subsequent
delivery in conformance with the agreed upon delivery date; or
(b) Retain such Splash Product and hold Splash's invoice until the
date it would otherwise be due if delivery had been made on the agreed upon
delivery date.
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3.08 LATE DELIVERY - Splash and Xerox or a Xerox Affiliate may mutually agree
to change the confirmed delivery dates for Orders, subsequent to their initial
confirmation. For Orders placed in compliance with the Standard Lead Time, if
Splash is [*] late in delivery of Splash Products for reasons not caused by
Xerox or a Xerox Affiliate, Splash shall airship Splash Products and pay any
increase in packaging and shipping costs between air freight and surface
freight. For Orders placed requiring delivery inside the Standard Lead Time, at
Xerox' request, Splash shall airship Splash Products provided Xerox pays any
increase in packaging and shipping costs between air freight and surface
freight. Additionally, and notwithstanding Section 3.02(e) above, if such
delivery is delayed more than [*].
3.09 INSPECTION - Xerox and Xerox Affiliates shall have the right to conduct,
at their expense, within [*] of the receipt of Splash Products (the "Inspection
Period") an inspection of Splash Products to ensure material compliance with
applicable specifications. Xerox or a Xerox Affiliate shall notify Splash of
the result of such inspection and in the event that such Splash Products fail to
materially conform to the specifications set forth in this Agreement and in the
Attachments hereto, Xerox shall have the right to reject such Splash Products.
If rejected, Splash shall, at its option and expense, promptly repair or replace
(with Xerox or the Xerox Affiliate returning the rejected Splash Products at
Splash's expense) such rejected Splash Product. Should Xerox or a Xerox
Affiliate fail to notify Splash of any rejection of a Splash Product within the
Inspection Period, such Splash Product shall be deemed to have been accepted.
Such acceptance shall not, however, be deemed a waiver of the warranty for the
Splash Product under Section 11.01 hereof. In the event either party finds an
excessive amount of "no trouble found" ("NTF") returns, the parties will meet,
and make commercially reasonable efforts to resolve the cause of the NTF's.
3.10 SPARES
(a) [*] Such inventory of Splash Products shall be maintained in a
mutually agreed configuration mix. Such inventory of Splash Products shall be
reserved solely for shipment to Xerox and Xerox Affiliates as emergency spares
("Emergency Spares"). Shipment of Emergency Spares shall be made at the expense
of Xerox or a Xerox Affiliate. Splash shall use commercially reasonable efforts
to ship Emergency Spares within [*] of a request therefor to Splash from Xerox
or a Xerox Affiliate. Xerox shall use commercially reasonable efforts to hold a
Spares inventory, such that Emergency Spare are not ordered on a regular basis.
Except as expressly set forth in this Section 3.10, upon receipt by Splash of an
Order for Spares from Xerox or a Xerox Affiliate, the procedures set forth for
Orders in Section 3.03 shall apply.
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(b) [*], Splash agrees to maintain spares in accordance with the
foregoing Emergency Spares inventory requirements as well as to provide any
Spares and repair services for failed parts at its then current prices for the
same.
3.11 FORMS OF NO EFFECT - All purchases hereunder shall be governed solely by
the terms and conditions of this Agreement, notwithstanding any preprinted terms
and conditions contained on any purchase orders issued by Xerox or Xerox
Affiliates or acknowledgments thereof issued by Splash.
IV. DOCUMENTATION AND SUPPORT
4.01 DOCUMENTATION
(a) Splash shall furnish to Xerox, on an ongoing basis during the
term hereof, free of charge and in a mutually agreeable form, mutually agreed
materials for use by Xerox to prepare brochures and other product literature,
including, but not limited to, [*] and [*] and necessary or appropriate for
the sale of the System ([*]) and mutually agreed engineering drawings and
documentation for use by Xerox to prepare service documentation for the
System ([*]). During the term of this Agreement, Splash agrees to provide to
Xerox updates to such provided material as are reasonably necessary for Xerox
to keep such [*] up to date.
(b) Splash hereby grants to Xerox a perpetual world wide,
royalty-free right and license to reproduce and have reproduced, distribute
directly and indirectly and prepare and have prepared Derivative Works of the
materials provided under Section 4.01(a) above, but solely in connection with
the preparation and distribution of [*] Documentation. Splash shall have the
right to review such Derivative Works in order to verify the accuracy of same
and shall advise Xerox of the results of such review within [*]of the receipt
of such materials from Xerox. Xerox shall own title to such Derivative Works.
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4.02 XEROX FIELD SUPPORT
During the term hereof, or the applicable warranty for Splash Product set forth
in Section 11.01 (c), whichever is longer,
(a) Xerox shall provide telephone hot line support to Xerox field
engineering and Xerox customer support. [*] Splash shall maintain well
trained and adequately staffed customer support resources to provide support
for Xerox service escalation personnel via an 800 number. This 800 number
shall be supported 24 hours a day, 7 days a week. During the hours of 5 A.M.
through 5 P.M. Pacific Standard Time Monday through Friday (U.S. holidays
excepted) this line shall be manned, otherwise support personnel shall be
available via pager or equivalent. In addition, after such hours and on
Saturdays and Sundays, Splash shall use commercially reasonable efforts to
respond to calls to such 800 number within [*] of the placement of the call
by Xerox. Splash shall use commercially reasonable efforts to track all
problems and report their status to Xerox on a regular basis, as reasonably
requested by Xerox.
(b) Any field/customer-identified problems shall be managed through
the Xerox software problem action request (SPAR) process. SPAR(s) are
determined by severity of the product failure. [*]
Splash shall use commercially reasonable efforts to perform the required
maintenance modifications shown in table A below. Splash shall use
commercially reasonable efforts perform to [*] time frames for [*] and [*].
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TABLE A
[*]
Example:
[*]
V. QUALITY ASSURANCE
5.01 QUALITY REQUIREMENTS - All Splash Products produced and delivered to
Xerox hereunder shall conform in all material respects with the specifications
set forth in the QCD Table in Attachment VI hereto, unless otherwise mutually
agreed and specified. Reliability of Splash Products shall meet or exceed the
requirements of such specifications. Quality and reliability failure rates
observed in excess of those specified in Attachment VI QCD Table shall result in
a meeting between the parties to ascertain the cause of such failure rate and
the development and implementation of a plan by Splash on a commercially
reasonable efforts basis, to bring such failure rate within the specified plan.
5.02 PRODUCT QUALITY PLAN - Splash shall develop, implement and provide to
Xerox, at least [*] prior to production hardware build, a mutually agreed upon
quality plan for Splash Products [*]. Such Quality Plan shall define the
controls and operating systems required to ensure that only compliant Splash
Products shall be delivered to Xerox. Existing Splash quality procedures may be
used to satisfy the plan and shall become a part of the basic operating document
for assuring compliance with Xerox' quality requirements.
5.03 [*] - Splash shall use its commercially reasonable efforts ensure that
its software process is repeatable as defined in the then current version of
[*].
5.04 MEAN TIME BETWEEN FAILURE - The Splash Product shall, during the term of
this Agreement, maintain or exceed the mean time between failure ("MTBF") rate
specified in the Attachment VI QCD Table. In the event that at any time during
the term of this Agreement the Splash Product demonstrates an MTBF below the
specified rate through no fault of Xerox, Splash shall, as soon as practicable,
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implement a corrective action program acceptable to Xerox to correct such
variance. If the average MTBF for Splash Products nonetheless remains below the
required level after implementation of such corrective action program, Splash
agrees to implement a superior corrective action program acceptable to Xerox and
to repair all of the failed Splash Products and affected Spares at no cost to
Xerox. Splash shall not be obligated to repair any Splash Products which have
been subjected to accident, negligence, misuse, alteration, modification,
tampering or causes other than ordinary use or that results or arises out of the
Xerox Software or Xerox Product.
5.05 MTBF/MTTR DATA - Splash shall supply data, as the parties shall mutually
agree, on the MTBF and mean time to repair ("MTTR") for the Splash Product as
soon as practical after the Effective Date of this Agreement. Such MTBF data
shall include failure data on all major subassemblies of the Splash Product.
Further, should any revisions or modifications to the Splash Product or
component parts thereof materially adversely affect the MTBF or MTTR of the
Splash Product, Splash shall review these revisions or modifications with Xerox
for concurrence before proceeding with any changes. Once a mutual agreement is
reached Splash shall supply revised MTBF and MTTR data within [*] of making any
such concurred revisions and modifications. Notwithstanding the foregoing,
Splash shall be required to provide such data only to the extent that it is
available through Splash's normal business processes.
5.06 MANUFACTURING SUPPLIER VERIFICATION - Xerox shall have the right to
conduct, at its expense, manufacturing supplier verification activities in
accordance with the Xerox supplier quality assurance procedures set forth in
Attachment XII at Splash's site. Splash shall use its commercially reasonable
efforts to schedule such manufacturing supplier verification activities within
[*] of request for same by Xerox. In the event that such verification
activities lead Xerox to a reasonable concern with respect to some aspect of
Splash's production process, the parties shall meet in a timely fashion to
discuss a mutually agreeable resolution to such concerns.
5.07 SOFTWARE/HARDWARE DEMONSTRATION - Xerox shall have the right to conduct,
at its expense, on-site reviews of the Splash Product at Splash's site. Splash
shall use its commercially reasonable efforts to schedule such reviews within
[*] of request for same by Xerox. Such review shall include a review and audit
of Splash's software and hardware development processes, schedule review, known
problem list, and projected UPCC. Notwithstanding the foregoing, source code
reviews shall be only for Derivative Works of Xerox Software and PPD files.
Information disclosed in such reviews shall be considered "Confidential
Information" pursuant to Article XV.
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5.08 REPLACED PRODUCTS - All Splash Products repaired or replaced by Splash
pursuant to this Article shall be subject to all quality assurance and
inspection requirements in accordance with the provisions of this Article V and
Section 3.09 (Inspection).
VI. TERM AND TERMINATION
6.01 TERM - This Agreement shall commence on the Effective Date and continue
in full force and effect for an initial term ending on the date that is [*].
6.02 TERMINATION FOR CAUSE - Either party may terminate this Agreement
effective immediately upon written notice of termination to the other party in
any of the following events:
(a) If the other party materially breaches this Agreement and such
breach, if curable, is not cured within [*] after written notice of breach by
the terminating party; or
(b) If the other party materially breaches this Agreement and such
breach is by its nature not curable; or
(c) If a petition for relief under applicable bankruptcy regulations
is filed by or against the other party, or the other party makes an assignment
for the benefit of creditors, or a receiver is appointed, or [*]. To the extent
applicable law prevents the non-terminating party from terminating this
Agreement as described above, then the parties shall have only those rights and
remedies permitted by applicable law, including the United States Bankruptcy
Act, including but not limited to 11 U.S.C. Section 365n.
(d) Notwithstanding anything to the contrary in this Section 6.02, in
the event that a Xerox Affiliate materially breaches this Agreement (i) Xerox
agrees to use its commercially reasonable efforts to compel such Xerox Affiliate
to cure such breach and (ii) if such breach is not curable or is not cured
within [*] of written notice to Xerox and the breaching Xerox Affiliate, Splash
may terminate this Agreement as to such breaching Xerox Affiliate.
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6.03 TERMINATION AND EXPIRATION EFFECT - Upon the termination or expiration
of this Agreement:
(a) If such termination or expiration is for reasons other than
breach by Xerox, then Xerox shall have the right to place with Splash, and
Splash shall not unreasonably reject, an Order for such quantities of Splash
Product as Xerox reasonably anticipates it shall require to maintain Splash
Products and Spares, to fulfill existing and future Orders after such
termination or expiration ("End-of-Life Order") to be delivered upon such date
as the parties shall mutually agree; provided, however, that such right shall in
no event continue for longer than [*] from the effective date of such
termination or expiration.
(b) In the event Splash elects not to renew the Agreement pursuant to
Section 6.01 above and Xerox desires to supply Splash Products to its customers
beyond such expiration date, Splash and Xerox agree to negotiate in good faith
and in a timely manner terms and conditions to allow Xerox to supply such Splash
Products. In the absence of agreement as to such terms and conditions, Splash
agrees to grant to Xerox the manufacturing license specified in 7.04.
(c) Each party shall immediately return to the other party all copies
of such other party's Confidential Information. Notwithstanding the foregoing,
if such termination or expiration is for other than Xerox' breach, Xerox may
retain a reasonable number of copies of such information as may be reasonably
necessary to continue supporting its customers that have purchased Systems;
provided, however, that such information may only be used for such purposes.
(d) Any existing, accepted Orders for the Splash Product shall
remain in effect and shall continue to be subject to all applicable terms of
this Agreement.
(e) If this Agreement is terminated by Xerox pursuant to Section 6.02
(a), or (b) Splash shall upon request provide a list of vendors for components
of Splash Products so that Xerox may source such components directly from such
vendors. Further, Splash agrees to provide timely assistance to Xerox in
negotiating supply agreements with such vendors upon Xerox' request and to grant
to Xerox the rights and licenses to the Escrowed Manufacturing Materials set
forth in Section 7.04 hereof.
VII. MANUFACTURING
7.01 MANUFACTURING - Splash shall manufacture or have manufactured the Splash
Product, [*]. Xerox shall manufacture, or have manufactured for it, the Xerox
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Product and be responsible for the incorporation of the Splash Product into
Systems.
7.02 CHANGE IN LOCATION OF MANUFACTURE - With the exception of force majeure
events, Splash shall use commercially reasonable efforts to notify Xerox [*]
prior to changing the location at which the Splash Products are manufactured.
Splash shall use commercially reasonable efforts to not discontinue
manufacturing at the original or substitute location until such time as Splash
can successfully demonstrate that the new location is suitable to produce on a
consistent basis Splash Products that comply with the then-current
specifications therefor. Upon [*] prior written notice, Splash shall permit
Xerox to inspect a new or proposed location at which Splash will produce Splash
Products to permit Xerox to make suggestions regarding the relocation of
manufacturing. [*].
7.03 [*]
7.04 [*]
(a) [*]
(b) [*]
(c) [*]
7.05 [*]
VIII. RIGHTS AND LICENSES
8.01 SOFTWARE
(a) Subject to the terms and conditions of this Agreement, Splash
hereby grants to Xerox and Xerox Affiliates (as approved by Xerox pursuant to
Section 3.01 (a)) under all of Splash's Intellectual Property Rights in and to
the Splash Software and Third Party Software the right to distribute directly
and indirectly the Splash Software and Third Party Software to Xerox customers
and to Xerox Affiliates and their customers; provided, however, that all Splash
Software and Third Party Software distributed by Xerox hereunder shall be
distributed as part of or in connection with the distribution of Systems and not
on a stand alone basis,
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unless the Xerox or Xerox Affiliate customer is acquiring the Splash Product in
order to convert a Xerox Product into a System.
(b) Subject to the terms and conditions of this Agreement, Xerox
hereby grants to Splash under all of Xerox' Intellectual Property Rights in and
to the Xerox Software and any Derivative Works thereof the worldwide,
nonexclusive, right to use, reproduce and have reproduced, prepare Derivative
Works of and distribute directly to Xerox and Xerox Affiliates (approved by
Xerox) the Xerox Software and Derivative Works thereof.
(c) Subject to the terms and conditions of this Agreement, Splash
hereby grants to Xerox and Xerox Affiliates (as approved by Xerox pursuant to
Section 3.01(a)), solely for the purpose of disposing of inventory after the
expiration or termination of this Agreement, under all of Splash's Intellectual
Property Rights in and to the Splash Software and Third Party Software to
distribute directly and indirectly the Splash Software and Third Party Software
to Xerox customers and to Xerox Affiliates and their customers; provided,
however, that all Splash Software and Third Party Software distributed by Xerox
hereunder shall be distributed as part of or in connection with the distribution
of Systems and not on a stand alone basis, unless the Xerox or Xerox Affiliate
customer is acquiring the Splash Product in order to convert a Xerox Product
into a System.
8.02 INCLUSION OF END-USER LICENSE AGREEMENT - Xerox agrees to distribute and
to ensure that its distributors and resellers (including, without limitation
Xerox Affiliates) distribute the Splash Products with Xerox' then current
standard end-user license agreement (the "▇▇▇▇") as may be modified by Xerox
from time to time. The ▇▇▇▇ shall contain all material provisions of Splash's
standard end-user license agreement, a copy of which is set forth in Attachment
X. Xerox shall ensure, and shall ensure that its distributors and resellers
(including, without limitation, Xerox Affiliates) ensure, that each customer
purchasing the Splash Product indicates acceptance of the terms and conditions
of the ▇▇▇▇ prior to using the Splash Product. Splash and Xerox agree to use
commercially reasonable efforts to work together to identify and implement a
method for ensuring that each customer indicates acceptance of the ▇▇▇▇, while
still meeting the Xerox goals for installation time and ease of use of the
Splash Product. Xerox agrees to indemnify and hold Splash harmless from and
against any loss, cost, damages or expense (including reasonable attorneys fees)
arising out of any third party claim resulting from Xerox' failure to comply
with the agreed upon method for the customer to indicate acceptance of the ▇▇▇▇;
provided Splash gives prompt written notice to Xerox of any such third party
claims, and Xerox shall control the settlement of such claims.
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8.03 [*]
8.04 SOFTWARE ESCROW -
(a) Within [*] of the first delivery to Xerox by Splash of a
Prototype, and for the term of Splash's maintenance obligation in Article XII
hereof, Splash shall deposit into an escrow account with a mutually agreed
independent escrow agent one complete set of the source code with appropriate
accompanying documentation for the Splash Software, and Object Code or source
code for the Third Party Software, including tools and a description of the
process to build the Splash Software and Object Code or source code for such
Third Party Software as Splash has or may acquire, using commercially reasonable
efforts, the right to place into escrow (collectively, the "Escrowed
Materials"). Splash shall from time to time, at the request of Xerox, update
such escrow account by depositing any updates, upgrades, revisions and
modifications to the Splash Software or Third Party Software; provided, however,
that Splash shall not be obligated to make deposits into the escrow account more
frequently than four times per year. The build process and subsequent software
functionality may be verified by Xerox' option before being placed into escrow.
Such verification process shall not however involve visual access to any source
code. Splash shall, concurrently with placing the Splash Software into escrow,
provide Xerox with a list and detailed description of all Third Party Software
which is not placed in escrow, including the reason for same and the identity of
the party claiming title to such Third Party Software. Xerox shall bear all
fees, expenses and other charges to open and maintain such escrow account. If
Xerox does not pay such charges when due, Splash shall upon [*] written notice
to Xerox allow the escrow account to close with no further obligation to Xerox
under this Section 8.04.
(b) [*]
(c) In the event a dispute shall arise between the parties
concerning the release of the Escrowed Materials, such dispute shall be
settled by expedited arbitration according to the then pertaining rules of
the American Arbitration Association (AAA) as modified herein. Either party
may issue a demand for arbitration concurrently with or subsequent to the
notice to the escrow agent requiring the release of the Escrowed Materials.
The parties shall, within [*] of the receipt of the demand for arbitration,
attempt to agree on the selection of an arbitrator from the list of neutrals
maintained by the AAA as maintained on the AAA website. In the event the
parties are unable to agree on a single arbitrator, either party may request
the appointment of a single arbitrator by the AAA as expeditiously as
possible. The parties agree to abide by the date selected by the selected
arbitrator to conduct the arbitration proceeding which shall
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be concluded in a single session, unless otherwise directed by the selected
arbitrator. The arbitration shall be held at such location as the arbitrator
shall require as expeditiously as the same can be scheduled. The parties shall
not conduct discovery beyond a single deposition each, which deposition shall be
conducted within [*] of the notice of same by a party. There shall be no
document discovery or production between the parties, unless directed by the
selected arbitrator. The arbitrator shall be requested to render a decision as
soon as practicable following the proceeding, and the parties agree that a
summary decision by the arbitrator, pending the final written decision, shall be
deemed conclusive. The costs of the arbitration shall be shared equally by the
parties to the dispute. The arbitration shall be directed to limit his/her
decision to the sole question of the release of the Escrowed Materials pursuant
to and under the provisions of this Agreement. Neither party shall be precluded
from seeking provisional remedies in the state or federal court of the states of
California or New York, including, but not limited to, temporary restraining
orders and preliminary injunctions, to protect its rights and interests, but
such shall not be sought as a means to avoid or stay arbitration.
(d) Effective upon release of the Escrowed Materials, Splash hereby
grants to Xerox a non-exclusive right to use, reproduce and modify the Splash
Software source code and prepare Derivative Works thereof, including Object
Code, solely as necessary to maintain the Splash Product. The Object Code
derived from the source code so modified shall be deemed to be a Derivative Work
of the Splash Software hereunder and subject to the same provisions regarding
ownership use, reproduction and disclosure that are contained in this Agreement
with respect to the Splash Software. Xerox shall not distribute, sell or
sublicense the Splash or Third Party source code or source code of any
Derivative Works thereof. The Splash source code and the Derivative Works
thereof created by Splash shall be the Confidential Information of Splash.
Splash shall own all right, title and interest in and to the Splash source code
and any Derivative Works thereof.
(e) In the event that the license granted in Section 8.04 (b) above
becomes effective and thereafter pursuant to the rights granted therein Xerox
creates Derivative Works of the Splash Software and desires that Splash
incorporates the same into the Splash Product, Xerox shall provide to Splash
written notice of such fact, and copies of such Derivative Works (in a mutually
agreed upon format). Splash shall, within [*] of receiving such notice and such
Derivative Works, implement such Derivative Works into future units of the
Splash Product delivered to Xerox and Xerox Affiliates hereunder.
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8.05 YEAR ▇▇▇▇ ▇▇▇▇▇▇▇▇ - Splash represents and warrants that the Splash
Software and Third Party Software delivered under this Agreement is Year 2000
performance compliant and thus shall be able to accurately process date data
(including, but not limited to, calculating, comparing, and sequencing) from,
into, and between the twentieth and twenty-first centuries, including leap year
calculations. The remedies available to Xerox for breach of this warranty shall
include prompt repair or replacement of any Splash Software and Third Party
Software or part thereof whose non-compliance is discovered and made known to
Splash in writing. Nothing in this warranty shall be construed to limit any
rights or other remedies Xerox may otherwise have under this Agreement with
respect to uncorrected program errors or defects.
8.06 TRADEMARK LICENSE
(a) All trademarks, service marks, trade names, logos or other words
or symbols identifying the Splash Product or the Splash Software or Splash (the
"Splash Marks") are and shall remain the exclusive property of Splash or its
licensors, whether or not specifically recognized or perfected under the laws of
a jurisdiction in which the Splash Products are distributed. Xerox and Xerox
Affiliates shall not acquire any rights in the Marks, except the limited use
rights specified in this Section 8.06. Xerox and Xerox Affiliates shall not,
without Splash's prior written permission, register, directly or indirectly, any
trademark, service ▇▇▇▇, trade name, company name or other proprietary or
commercial right which is identical or confusingly similar to the Marks or which
constitute translations thereof. These restrictions shall be limited to this
Agreement.
(b) All trademarks, service marks, trade names, logos or other words
or symbols identifying the Xerox Product or the Xerox Software or Xerox (the
"Xerox Marks") are and shall remain the exclusive property of Xerox or its
licensors, whether or not specifically recognized or perfected under the laws of
a jurisdiction in which the Xerox Products are distributed. Splash shall not
acquire any rights in the Marks. Splash shall not without the prior written
permission of Xerox use the Xerox ▇▇▇▇ ▇▇▇▇▇ except to reproduce Splash Products
exclusively for Xerox. These restrictions shall be limited to this Agreement.
(c) Xerox and Xerox Affiliates shall, at their sole option, only have
the limited right to use the Splash Marks for the purpose of advertising and
promoting the System, in which all such use shall inure to the benefit of
Splash. Any such advertisements and promotional materials that reference the
Splash Marks shall (i) clearly identify Splash or its licensors as the owners of
the Splash Marks, (ii) conform to Splash's trademark and logo guidelines (which
shall be attached hereto as Attachment II, no later than [*] prior to the
commencement of beta testing
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of the System, which shall include manner of use and representative approved
uses and prohibited practices) and (iii) otherwise comply with Xerox practices
in marking its own products as may differ according to any local notice or
marking requirement contemplated under the laws of the jurisdiction in which the
Splash Product is distributed. Before publishing or disseminating any new
advertisement or promotional materials bearing a Splash ▇▇▇▇, Xerox or a Xerox
Affiliate shall deliver a sample of the advertisement or promotional materials
to Splash for prior approval, in Splash's sole discretion, and which review
shall be conducted within [*] of the submission of such sample to Splash by
providing notice as specified in this Agreement. If Splash does not respond to
any Xerox request for approval within [*] the Xerox request shall be deemed
approved. If Splash notifies Xerox or a Xerox Affiliate that the use of the
Splash ▇▇▇▇ is not approved, Splash shall inform the Xerox entity in writing of
the reasons for the objection and such entity shall not publish or otherwise
disseminate the advertisement or promotional materials until they have been
corrected. When subsequent advertisements or promotional materials are to be
used by Xerox that do not differ substantially in the reasonable judgment of
Xerox from the new advertisements or promotional materials, Xerox is not
required to seek approval of the subsequent advertisements or promotional
materials.
IX. SPLASH PRODUCT CHANGES
9.01 PRODUCT CHANGES - The Splash Product shall incorporate all mutually
agreed improvements or changes. Splash shall, as soon as practicable, inform
Xerox of any proposed improvement or change in writing which materially affects
the Form, Fit, Function, Compatibility, cost, or schedule setting forth the date
of the proposed incorporation of such changes into the Splash Product and
description of how the change affects the:
(a) Form (external appearance of finished products or piece parts; or
external dimensions, dimension tolerances or shape);
(b) Fit (provisions for mounting; changes to mounting holes, or holes
for mounting shipping restraints; changes in the dimension or shape of internal
spaces available for customer use; changes affecting the interchangeability of
parts, electrical or other power and environmental requirements);
(c) Function (Operation in the Splash Product per applicable
specification, Splash Product performance, or the Splash Product's reliability);
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(d) Compatibility (The Splash Product operation or Splash Product's
internal logic or timing which might affect: application of the Splash Product,
part number or configuration dash number of parts which can be replaced in the
field, the interchangeability of spares, service documentation which might
affect a customer's application of the Splash Product, IOT software interface
compatibility, CentreWare software;
(e) cost of the proposed change and its effect on the UPCC; or
(f) schedule or specifications of the Splash Product
Xerox shall respond within [*] to each request for Splash Product changes
received from Splash indicating its acceptance or rejection to proceed with such
change.
9.02 SOFTWARE CHANGES - After the commencement of Xerox beta testing, Splash
shall notify Xerox not less than [*] prior to making any changes or improvements
(including bug fixes) in the Splash Software, regardless of the nature or scope
of such change and improvement. Xerox shall carefully consider the nature and
scope of such change and shall, within [*] of the request for such change by
Splash, notify Splash of its agreement or disagreement to proceed with such
change or improvement. Splash shall only implement agreed upon changes in the
Splash Software.
9.03 IMPLEMENTATION - Splash shall use all reasonable efforts to implement
any changes made by Splash and accepted by Xerox pursuant to Section 9.01 or
9.02 hereof in accordance with the schedule indicated by Splash in the written
notification of change. Such changes shall be incorporated into Splash Products
scheduled to ship after such implementation date. The serial number of the
first Splash Product unit incorporating such changes shall be identified to
Xerox and Splash agrees that all Splash Products with serial numbers greater
than such serial number shall incorporate such changes.
9.04 EFFECT OF REJECTION - In the event Xerox rejects a change to the
Splash Product proposed by Splash [*], which Xerox agrees not to do
unreasonably, Splash shall remain obligated to deliver Splash Products
conforming in all material respects to the applicable specifications set
forth in this Agreement in the Attachments hereto. Any nonconformance in
the Splash products that would have been fixed by changes proposed by Splash
and rejected by Xerox, and would not otherwise degrade the System, will not
be considered breaches of Splash's obligations under Article XI or Section
4.02, or Section 5.04, or Section 5.04, or contribute to the calculation of
Systemic Defects.
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9.05 COST EFFECTS OF CHANGES - Notwithstanding anything herein to the
contrary, in the event that any change in the Form, Fit, Function, specification
or schedule of the Splash Product pursuant to Sections 9.01, 9.02 and/or 10.01
hereof, or which are otherwise mutually agreed upon hereunder, constituting an
upgrade to or enhancement of Splash Product, results in a significant increase
or decrease in the cost of the Splash Product, or in the length of time required
for the manufacture or delivery thereof, equitable adjustment to the price of
the Splash Product or agreed upon shipping date or both shall be made by the
parties pursuant to good faith negotiations.
X. AGENCY APPROVAL AND SAFETY
10.01 COMPLIANCE - The Splash Product shall comply with all applicable
governmental laws, regulations and other public requirements in effect at the
time of shipment hereunder and, in particular, the safety requirements and
governmental or other agency certifications (including Regulatory Agency
certifications) described in the specifications appearing in Attachment IX, and
stated Xerox requirements in effect at the time of order placement; provided,
however, that such Xerox requirements have been included in the agreed upon
specifications for the Splash Product. Splash agrees to use its commercially
reasonable efforts to implement in a timely fashion any additional requirements
requested by Xerox but not contained in the then current agreed upon
specifications for the Splash Product. In the event Splash, despite
commercially reasonable efforts to implement such additional requirements
requested by Xerox, is unable to deliver Splash Products meeting such
requirements, such failure shall not constitute a breach of this Agreement.
Splash shall promptly deliver Splash Products meeting such requirements as soon
as practicable.
10.02 REGULATORY AGENCY APPROVAL - Splash shall obtain, [*], full Regulatory
Agency approvals as required for both the Splash Product and the System,
provided that the Splash obligation set forth in this paragraph is contingent
upon Xerox previously obtaining such regulatory approval for the Xerox IOT.
Splash shall obtain, [*], any required Regulatory Agency re-approvals for any
Splash Products, which are modified in any authorized manner hereunder.
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XI. WARRANTIES
11.01 SPLASH WARRANTIES
(a) Splash warrants that (i) it has either good and marketable title
to all Splash Products and/or has sufficient rights to grant to Xerox and Xerox
Affiliates the rights granted hereunder to distribute Splash Products, and (ii)
all units of Splash Products shall be free and clear of all liens, encumbrances
and security interests.
(b) Splash warrants that, unless otherwise agreed in writing, [*].
(c) Splash warrants that the Splash Products delivered hereunder
shall conform in all material respects to the specifications set forth in this
Agreement in the Attachments hereto as may be modified by the mutual agreement
of the parties from time to time and shall be free from material defects or
failure to meet specifications contained in the Agreement and its Attachments
[*].
11.02 WARRANTY OBLIGATIONS - In the event that a Splash Product fails to
conform to the warranty set forth in Section 11.01 (b) or (c) above, Splash
shall, [*] including freight, use its commercially reasonable efforts to
deliver to Xerox a replacement within [*] of the receipt by Splash of such
nonconforming Splash Product; provided, however, that Xerox provides to
Splash written notification in reasonable detail of such nonconformity by the
time of the receipt of such Splash Product. In the event either party finds
an excessive amount of No Trouble Found ("NTF") returns, the parties will
meet and shall use commercially reasonable efforts to resolve the source of
the NTF's by Splash. The foregoing states Splash's sole liability and Xerox'
exclusive remedy for breach of the warranty set forth in Section 11.01 above.
11.03 REPAIRED AND REPLACED PRODUCTS - All Splash Products repaired or
replaced by Splash under this Article shall be subject to the balance of any
warranty set forth in Section 11.01(c).
11.04 SYSTEMIC DEFECTS - Notwithstanding anything to the contrary in
Sections 11.01 and 11.02 above, (i) Splash shall undertake without charge and
without delay to promptly meet with Xerox to put a mutually agreed plan in place
to promptly remedy any Systemic Defect in all Splash Products in inventory or in
the field, by delivering to Xerox on a rolling inventory basis a replacement
Splash Product or part thereof and (ii) Splash shall use commercially reasonable
efforts to reduce turnaround time for Splash Products returned to Splash and
affected by a
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Systemic Defect to [*]. The foregoing states Splash's sole obligation and the
exclusive remedy of Xerox and Xerox Affiliates with respect to Systemic Defects.
Splash shall not be required to cure any Systemic Defect for any Splash Products
which have been subjected to accident, negligence, misuse, alteration,
modification, tampering or causes other than ordinary use or that results from
or arises out of the Xerox Software or Xerox Product.
11.05 WARRANTY DISCLAIMER - THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE
XI CONSTITUTE THE ONLY WARRANTY WITH RESPECT TO THE SPLASH PRODUCTS. SPLASH
MAKES AND XEROX RECEIVES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER
EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE
SPLASH PRODUCTS. SPLASH EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
11.06 CUSTOMER SATISFACTION SURVEYS - The parties agree that they shall, from
time to time, conduct surveys of end users to determine the satisfaction of
customers with the System. Each party shall, at the expense of the requesting
party, assist the requesting party in any reasonable fashion in conducting such
surveys, and each party agrees to share with the other party information derived
from such survey that relates to the product(s) of the other party.
11.07 XEROX WARRANTIES
(a) Xerox warrants that it has either good and marketable title to
the Xerox Software and all Xerox Deliverables which Xerox provides to Splash for
incorporation into the Splash Product and/or has sufficient rights to convey
such software to Splash for the purposes set forth in this Agreement.
(b) Xerox warrants that the Xerox Software and all Xerox
Deliverables shall conform in all material respects to the applicable
specifications therefor and that the Xerox Software and the Xerox Deliverables
are suitable for their intended use hereunder. In the event of a failure of such
conformance or suitability, the schedule obligations of Splash to develop the
Splash Product under Article II hereof will be adjusted accordingly.
(c) Xerox and Xerox Affiliates shall not make or offer any
representation or warranty to any third party respecting the Splash Product or
any portion thereof that is inconsistent with or in addition to the warranty
provided by Splash to Xerox under Section 11.01 hereof. Xerox and Xerox
Affiliates hereby agree to indemnify and hold harmless Splash from and against
any [*]
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[*] resulting from any representation or
warranty made or offered in violation of this Section 11.07.
XII. MAINTENANCE SERVICE
For a period of the longer of [*], Splash shall offer to Xerox
maintenance service support and consulting to maintain the Splash Products in
accordance with Splash's then current policy for such services and at Splash's
then customary fees.
XIII. TRAINING
Splash shall provide to Xerox, [*] training courses for each year of the
term of this Agreement, [*] to provide instruction on the marketing,
installation and service support of such Splash Product. The course shall be
provided in accordance with a schedule and on topics mutually agreed upon by the
parties. Xerox shall be given one copy of such training materials that it may
copy and distribute for purposes of training other employees or agents of Xerox
and Xerox Affiliates in addition to one copy for each student attending the
class.
XIV. INDEMNIFICATION
14.01 SPLASH INDEMNIFICATION - Splash agrees, at its expense, to defend
promptly Xerox or a Xerox Affiliate from, and pay any judgment for, any suit,
claim or proceeding brought by a third party (hereinafter "Claim") against Xerox
(or a Xerox Affiliate to which Splash Products are sold under this Agreement)
alleging that any Splash Products sold or licensed hereunder either (i) violates
any applicable safety or regulatory standard, or (ii) has caused injury or
damage to the person or tangible property of another arising from defects in
materials, design or construction, unless based upon the negligent or wrongful
intentional conduct of Xerox, a Xerox Affiliate, or any of their agents,
representatives or employees, or (iii) infringes any patent or copyright;
provided that Xerox promptly notifies Splash in writing of any such Claim, gives
all reasonable assistance required by Splash, and permits Splash to direct the
defense. [*] The foregoing obligation of Splash to indemnify Xerox shall not
apply to the extent that a Claim arises out of or results from (A) the
incorporation of the Xerox Software into the Splash Product, (B) the combination
of any Splash Product with the Xerox Product or any third party software or
hardware not provided by Splash, (C) Splash's compliance with or adoption of any
detailed specification,
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design, feature, ▇▇▇▇ or symbol, component parts or printed materials or other
information or materials required by Xerox for incorporation or use with the
Splash Product or (D) any modification or reworking of the Splash Product made
by or upon the instruction of Xerox or a Xerox Affiliate or performed by or for
Splash on the instruction of Xerox or a Xerox Affiliate, or is provided by
Article XXV hereof.
14.02 XEROX INDEMNIFICATION - Subject to Splash's obligation under
Section 14.01 above, Xerox agrees, at its expense, to defend promptly Splash
from, and pay any judgment for, any Claim against Splash alleging that any
System, Xerox Products or Xerox Software either (i) violates any applicable
safety or regulatory standard, or (ii) has caused injury or damage to the person
or tangible property of another arising from defects in materials, construction
or design or (iii) infringes any patent or copyright; provided that Splash
promptly notifies Xerox in writing of any such Claim, gives all reasonable
assistance required by Xerox, and permits Xerox to direct the defense. Xerox
shall have no liability for settlements or costs incurred without its consent.
The foregoing obligation of Xerox to indemnify Splash shall not apply to the
extent that a Claim arises out of or results from the incorporation of Splash
provided Third Party Software or Splash hardware, or the Splash Software into
the System.
14.03 INJUNCTION - In the event that Xerox or its customer's use or Xerox'
Affiliates or their customers use of any of the Splash Products is enjoined,
Splash shall, at its option and expense, either substitute fully equivalent
products not subject to such injunction, modify the Splash Product so that it no
longer is subject to such injunction, or obtain for Xerox and its customers and
Xerox Affiliates and their customers the right to continue using the enjoined
Splash Products. [*]
14.05 [*]
XV. CONFIDENTIAL AND PROPRIETARY INFORMATION
15.01 OBLIGATION OF CONFIDENTIALITY; NON-USE - The recipient of Confidential
Information (whether Splash, Xerox or a Xerox Affiliate) shall (i) except to
achieve the purposes of this Agreement, not disclose such information or any
part thereof to any third party (ii) restrict circulation of such information
within its own organization on a need-to-know basis and (iii) keep such
information confidential using the same degree of care it uses with respect to
its own Confidential Information and at least a reasonable degree of care. If
either party reproduces any part of such information for use within its own
organization, the recipient shall ▇▇▇▇ all reproductions by indicating the
disclosing party's proprietary interest. If any such information is
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transferred to Xerox' or Splash's vendors, suppliers or customers, such vendors,
suppliers or customers shall be required to maintain the confidentiality of such
information and such transfer must be authorized in writing in advance by the
disclosing party. Such obligation to keep information confidential shall
survive any termination or expiration of this Agreement. The recipient of
Confidential Information shall not use such information except as required to
exercise its rights and fulfill its obligations hereunder. [*]
15.02 LIMITATIONS - Confidential Information shall not include:
(a) information in the public domain at the time of the disclosure;
(b) information that becomes publicly available through no fault of
the recipient;
(c) information in the recipient's possession, free of any obligation
of confidence, at the time of receipt of the information;
(d) information that becomes available on an unrestricted basis to a
third party with no obligation of confidentiality from the disclosing party;
(e) information was developed by employees or agents of the recipient
independently of and without reference to the information disclosed in
confidence; or
(f) information disclosed to the recipient after the time period of
[*]; or
(g) to the extent the recipient is obligated to produce the
information under court or government action.
15.03 NO IMPLIED LICENSE -
(a) Nothing contained in this Agreement shall be construed as
conferring by implication, estoppel or otherwise upon Xerox or Xerox Affiliates
any licenses or other rights except the licenses and rights expressly granted
herein. Splash retains all copyright and all other intellectual property rights
in and to the Splash Product, Splash Underlying Technology and Splash Software,
except as provided in this Agreement.
(b) Nothing contained in this Agreement shall be construed as
conferring by implication, estoppel or otherwise upon Splash any license's or
other rights except the license and rights expressly granted herein. Xerox
retains all
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copyright and all other intellectual property rights in and to the Xerox
Products, Xerox Underlying Technology and Xerox Software, except as provided in
this Agreement.
XVI. LIMITATION OF LIABILITY
16.01 LIMITATION ON DIRECT DAMAGES
A) EXCEPT FOR SPLASH'S OBLIGATION TO INDEMNIFY XEROX UNDER
ARTICLE XIV AND FOR ANY BREACH BY SPLASH OF ANY LICENSE GRANTED HEREUNDER OR
ARTICLE XV, UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF SPLASH AND ITS
OFFICERS, DIRECTORS, AND EMPLOYEES, FOR DIRECT DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT EXCEED [*], WHETHER ARISING IN CONTRACT IN TORT
(INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY.
(B) EXCEPT FOR XEROX' OBLIGATION TO INDEMNIFY SPLASH UNDER ARTICLE
XIV AND FOR ANY BREACH BY XEROX OF ANY LICENSE GRANTED HEREUNDER OR ARTICLE XV,
UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF XEROX AND ITS OFFICERS, DIRECTORS,
AND EMPLOYEES, FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT EXCEED [*] WHETHER ARISING IN CONTRACT, IN TORT (INCLUDING WITHOUT
LIMITATION NEGLIGENCE) OR ANY OTHER THEORY.
16.02 DISCLAIMER OF OTHER DAMAGES - EXCEPT FOR BREACHES OF ARTICLE XV,
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND THE OBLIGATIONS OF THE PARTIES
UNDER ARTICLE XIV, XEROX, XEROX AFFILIATES, AND SPLASH SPECIFICALLY DISCLAIM AND
WAIVE AS TO EACH OTHER AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES
ANY AND ALL LIABILITY FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, OR DAMAGES OTHER
THAN DIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO PUNITIVE OR EXEMPLARY DAMAGES,
HOWEVER DENOMINATED, AND INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER
ARISING IN CONTRACT, IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY
OTHER THEORY EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED
HEREIN.
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XVII. EXPORT CONTROL
Splash and Xerox shall comply with all applicable laws and regulations
respecting the export, directly or indirectly, of any technical data acquired
from the other under this Agreement or any products utilizing any such data to
any country the laws or regulations of which at the time of export, require an
export license or other government approval including but not limited to first
obtaining such license or approval.
XVIII. INDEPENDENT PRODUCT DEVELOPMENT
Except as expressly provided in Section 3.01 hereof, this Agreement does
not and shall not be construed to limit the rights of Xerox or Xerox Affiliated
Companies or Splash to develop competing products or software without breach of
Article XV or infringement or misappropriation of the other party's Intellectual
Property Rights.
XIX. FORCE MAJEURE
Neither Splash nor Xerox shall be liable to the other for its failure to
perform any of its obligations hereunder or under any purchase order or
acknowledgment thereof during any period in which such performance is delayed by
unforeseeable circumstances beyond its reasonable control (a "Force Majeure
Event").
XX. NOTICES
Any notice which may be or is required to be given under this Agreement
shall be in writing. All written notices shall be sent by registered or
certified airmail, postage prepaid, return receipt requested. To the extent
this Agreement requires notice to be given to Splash or Xerox, such notices
shall be deemed to have been given when received, addressed in the manner
indicated below or at such other addresses as the parties may from time to time
notify each other of:
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XEROX CORPORATION SPLASH TECHNOLOGY
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Xerox Corporation Splash Technology, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.▇▇▇-▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
716.231.5807 408.328.6315
▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇.▇▇▇▇▇.▇▇▇ ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
XXI. POINTS OF CONTACT
Attachment XIII is included in this Agreement only to provide both
parties with names, addresses and telephone numbers for primary points of
contact in the day to day administration of the activities defined in this
Agreement.
XXII. HEADINGS
The headings and titles of the Articles and Sections of this Agreement
are inserted for convenience only and shall not affect the construction or
interpretation of any provision.
XXIII. AMENDMENT
This Agreement and the Attachments hereto may be amended only by a
document in writing duly signed by authorized representatives of both parties.
XXIV. ASSIGNMENT
[*]
XXVI. SEVERABILITY
If any provision of this Agreement is held invalid by any law, rule,
order or regulation of any government, or by the final determination of a court
of last resort, such invalidity shall not affect (a) the other provisions of
this Agreement, (b)
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the application of such provision to any other circumstance other than that with
respect to which this Agreement was found to be unenforceable, or (c) the
validity or enforceability of this Agreement as a whole.
XXVII. WAIVER
Failure or delay of either party to exercise any right or remedy under
this Agreement or to require strict performance by the other party of any
provision of this Agreement shall not be construed to be a waiver of any such
right or remedy or any other right or remedy hereunder. All of the rights of
either party under this Agreement shall be cumulative and may be exercised
separately or concurrently.
XXVIII. SURVIVAL
The provisions of this Agreement set forth in Sections 2.01(b) and (d),
2.04, 2.05(a)-(d), 3.04, 3.10, 3.11, 4.01(b), 4.02, 8.01(b)(to the extent
necessary only for the purpose of Splash's ongoing maintenance obligation),
8.02, 8.05, 8.06 (to the extent necessary to complete distribution of the Splash
Products or to enable Xerox to enforce the rights granted it in Section 7.04),
11.01-11.05, and 11.07, and again Articles VI, XII, XIV-XVII, XIX-XXXV shall
survive the expiration or any termination hereof. In addition, the provisions
of Sections 7.04, 8.01(c), 8.04 shall survive any termination of this Agreement
except a termination based upon the breach of this Agreement by Xerox, and the
provisions of Section 3.02(e) shall survive any termination of this Agreement
except a termination based upon the breach of this Agreement by Splash. In
addition, the provisions of Section 3.01(b) shall survive any termination of
this Agreement by Xerox pursuant to Section 6.02 (a) and (b) by reason of the
breach hereof by Splash.
XXIX. ETHICAL STANDARDS
Splash agrees that, with respect to its role as supplier to Xerox
including any interaction with any employee of Xerox, Splash shall not: (1)
give or offer to give any gift or benefit to any such employee of Xerox, (2)
solicit or accept any information, data, services, equipment, or commitment from
such employee unless same is (i) required under a contract between Xerox and
Splash, or (ii) made pursuant to a written disclosure Agreement between Xerox
and Splash, or (iii) specifically authorized in writing by Xerox's management,
(3) solicit or accept favoritism from said employee, and (4) enter into any
outside business relationship with said employee without full disclosure to, and
prior approval of, the appropriate management of Xerox. As used herein:
"employee" includes members of the
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employee's immediate family and household, plus any other person who is
attempting to benefit from his or her relationship to the employee. "Splash"
includes all employees and agents of Splash. "Gift or benefit" includes money,
goods, services, discounts, favors and the like in any form but excludes
standard business entertainment expenses associated with planned meetings as
well as low value items such as pens, pencils, and calendars.
XXX. ARBITRATION
30.01 The parties shall attempt in good faith to resolve any dispute arising
out of or relating to this Agreement promptly by negotiations between executives
who have authority to settle the controversy. Any party may give the other
party(ies) written notice of any dispute not resolved in the normal course of
business. Within [*] after delivery of said notice, executives of both parties
shall meet at a mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary, to exchange relevant information and to attempt
to resolve the dispute. If the matter has not been resolved within [*] of the
disputing party's notice, or if the parties fail to meet within [*], either
party may initiate arbitration of the controversy or claim as provided
hereinafter.
30.02 All negotiations pursuant to this clause are confidential and shall be
treated as compromise and settlement negotiations for purposes of the Federal
Rules of Evidence, state rules of evidence, and other applicable law.
30.03 If the parties are unable to resolve the dispute by negotiations as set
forth above, such dispute shall be settled by arbitration, conducted on a
confidential basis, under the then current commercial Arbitration Rules of the
American Arbitration Association ("the Association") strictly in accordance with
the terms of this Agreement and the substantive law of the State of New York.
The arbitration shall be held at a mutually agreeable location in California if
the arbitration proceeding is commenced by Xerox and in New York if the
arbitration proceeding is commenced by Splash, and conducted by one arbitrator
chosen from a list of attorneys who are knowledgeable about the data processing
and business equipment industries. The costs of the arbitration, including the
fees to be paid to the arbitrator, shall be shared equally by the parties to the
dispute. The parties to the dispute shall be limited to taking no more than
three (3) depositions. The scope of document production shall be governed by
the commercial Arbitration Rules of the Association and the decision of the
arbitrator with respect thereto. The judgment upon the award rendered by the
arbitrator may be entered and enforced in any court of competent jurisdiction.
Neither party shall be precluded hereby from seeking provisional remedies in the
courts of any jurisdiction including, but not
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limited to, temporary restraining orders and preliminary injunctions, to protect
its rights and interests, but such shall not be sought as a means to avoid or
stay arbitration. To the extent this Agreement contains a limitation and/or
disclaimer of liability clause, the arbitrator shall apply the terms of such
clause. The parties agree that they have voluntarily agreed to arbitrate their
disputes in accordance with the foregoing.
XXXI. NONPUBLICITY
Without the prior written consent of the other party, which shall not
be unreasonably withheld, a party shall not (a) make any news release, public
announcement, denial or confirmation of this Agreement or its subject matter,
or (b) advertise or publish any facts relating to this Agreement. In the
event a party is required to make disclosure for statutory or regulatory
reasons, the other party shall have the right to review any proposed
disclosure provided that it shall do so [*] of its receipt of the proposed
disclosure.
XXXII. CONTROLLING LAW
This Agreement shall be governed by and construed in all respects in
accordance with the laws and regulation of the State of New York, U.S.A. The
definitions set forth in the Incoterms of the International Chamber of Commerce,
1990 edition, shall be controlling. To the extent there may be any conflict
between the law of the State of New York and the Incoterms, the Incoterms shall
be controlling.
XXXIII. REMEDIES CUMULATIVE
Except as otherwise set forth herein, any rights of cancellation or
termination, or remedies prescribed in this Agreement are cumulative and are not
intended to be exclusive of any other remedy of which the injured party may be
entitled to herein or at law or in equity, including but not limited to the
remedy of specific performance.
XXXIV. INTEGRATION
This Agreement and its Attachments constitute the entire agreement of
the parties as to the subject matter hereof and supersedes any and all prior
oral or written understandings and agreements as to such subject matter,
including any
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preprinted terms and conditions contained in any purchase orders and
acknowledgments issued hereunder.
XXXV. RELATIONSHIP OF THE PARTIES
35.01 It is the intent of the parties that during the term of this Agreement,
Splash shall be an independent contractor, and nothing set forth herein shall be
deemed or construed to render the parties joint ventures, partners or employer
and employee. Neither party is authorized to make any commitment or
representation on the other's behalf, except for the limited purpose of
obtaining acceptance of the ▇▇▇▇ for the benefit of Splash from end users,
pursuant to Section 8.02.
35.02 During the term of this Agreement, if the term "partnership", "partner"
or "development partner" or the like is used to describe the parties'
relationship, Xerox and Splash agree to make it clear to third parties that
these terms refer only to the spirit of cooperation between them and neither
describe, nor expressly or through implication create, the legal status of
partners or joint ventures.
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IN WITNESS WHEREOF, authorized representatives of the parties have
affixed their signatures as of the Effective Date.
SPLASH TECHNOLOGY, INC. XEROX CORPORATION.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Typed Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Typed Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: PRESIDENT & CEO Title: President ODPG
Date: APRIL 6, 1998 Date: 3/3/98
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