EXHIBIT 10.1
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MASTER SUPPLY AND DISTRIBUTION AGREEMENT
This Agreement is made and entered into this 21st day of September,
2000, by and between PRESSTEK, Inc., a corporation organized and existing under
the laws of the State of Delaware, having an office and place of business at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "PRESSTEK"), and XEROX
Corporation, a corporation organized and existing under the laws of New York,
having an office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (hereinafter "XEROX").
STATEMENT
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PRESSTEK has developed a direct imaging technology for the formation of
images on printing plates from digital data using ablation plate and laser diode
imaging techniques, including related software and systems (the "PRESSTEK
ProFire Technology"). PRESSTEK is in the business of manufacturing and licensing
others to manufacture products incorporating the PRESSTEK ProFire Technology
and, in cooperation with various partners, has applied PRESSTEK ProFire
Technology to printing presses, platesetters and other products. XEROX is a
major manufacturer and seller of duplicating and graphic arts products.
On February 3, 2000, the parties entered into a non-binding Memorandum
of Understanding ("MOU") pursuant to which the parties have cooperated in the
demonstration of PRESSTEK - designed products and the XEROX [CONFIDENTIAL
TREATMENT REQUESTED]/*/ System at the DRUPA 2000 trade show. The parties have
now agreed to proceed with the production, marketing and commercial distribution
of three direct imaging presses and related consumables on a co-branded basis.
Accordingly, this Agreement sets forth the terms and conditions under which
PRESSTEK will supply the agreed products to XEROX for resale by XEROX on a
co-branded basis.
Now, therefore, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings, unless the context otherwise requires:
a. "Documentation" shall mean all written text including but
not limited to manuals, brochures, Specifications and software descriptions, in
electronic, printed and/or camera ready form, and related materials necessary
for marketing, support or use of the Products, including sales documentation,
service documentation, and customer documentation as further described herein.
b. "Maintenance Modifications" shall mean modifications to
Documentation and/or software components of the Products (including the object
code thereto) which correct Product Failures, support new releases of the
operating systems with which the code is designed to operate, support new
input/output (I/O) devices, or provide other updates and corrections necessary
to resolve customer problems as further described herein.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
c. "Mandatory Retrofit" shall mean a retrofit necessary to
restore the Products to be in conformity with the Specifications, to render the
Products safe for use or to have the Products comply with applicable law.
d. "Product Failure" shall mean any error, unresolved problem,
or defect in the Product(s) caused by or resulting from (1) an incorrect
functioning of code or command files, or (2) an incorrect or incomplete
statement or diagram in the Documentation, if such error, problem, or defect
renders the code inoperable, causes the code to fail to meet the Specifications,
causes Documentation to be inaccurate or incomplete in any material respect,
causes incorrect results, or causes incorrect functions to occur in any material
respect when any such materials are used for their intended purposes.
e. "Products" shall mean the [CONFIDENTIAL TREATMENT
REQUESTED] /*/Press, the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press,
Consumables and Spares as hereinafter defined.
f. "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 for sale in North America and Europe with other regions to be
added by mutual consent.
g. "Spares" shall mean spare parts for the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Press or [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press,
and modifications, enhancements and improvements thereto which are made pursuant
to the terms of this Agreement.
h. "Specifications" shall mean the engineering, operational
and/or functional description of the Product(s) as set forth in the
specifications contained in Exhibits B and C, as the same may be amended by
mutual agreement of the parties.
i. "Update" shall mean a bug fix or software release intended
in whole or in part to correct or avoid a software coding error. The term shall
also mean any other software release, revision or version (other than a
Maintenance Modification) which does not include bug fixes or changes to correct
a defect in the software component, and which PRESSTEK chooses to make available
to XEROX as part of the software component, either for free or at a price to be
determined by PRESSTEK. All Updates will include all error corrections and
PRESSTEK shall use best efforts to ensure that Updates will be backwards
compatible with the previous consecutive hardware and software platform release.
j. "XEROX" shall mean, whether or not so specified and unless
the context otherwise requires, XEROX Corporation and XEROX Companies.
k. "XEROX Company" shall mean XEROX (Europe) Limited, Fuji
XEROX Co., Ltd., Modi XEROX Co., Ltd., and any entity which is owned or
controlled directly or indirectly by XEROX Corporation or by any of the
foregoing.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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2. PRIOR AGREEMENTS. This Agreement is entered into pursuant to the MOU
of February 3, 2000 and replaces, terminates and supercedes any and all prior
understandings and written agreements of the parties with respect to the subject
matter hereof, including without limitation the MOU. This Agreement is
supplemented by a separate and independent Confidentiality Agreement dated July
22, 1998 and attached hereto as Exhibit A. The Confidentiality Agreement shall
govern the exchange of all confidential information between the parties in
connection with the parties' relationship pursuant to this Agreement.
3. PRODUCTS. Under the terms of this Agreement, PRESSTEK shall supply
and XEROX shall purchase the following Products (the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press and the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press are
referred to collectively as "Presses") for worldwide resale, lease,
distribution, servicing, and sublicense by XEROX to XEROX' customers under
mutually agreed terms and conditions:
a. [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press. An inline
sheet-fed printing press of the B3 format size manufactured by [CONFIDENTIAL
TREATMENT REQUESTED]/*/ incorporating on-press direct imaging of plates using
the PRESSTEK ProFire Technology, such press including a four-color press and a
five-color press hereinafter identified as the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press. The definition of "[CONFIDENTIAL TREATMENT REQUESTED]/*/
Press" shall include any and all presses which meet the foregoing description
during the term of this Agreement. The Specification for the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Press is attached hereto as Exhibit B.
b. [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press. A four-color,
sheet-fed printing press of the A3 format size manufactured by [CONFIDENTIAL
TREATMENT REQUESTED]/*/ incorporating multi-print cylinder technology and on
press direct imaging of plates using the PRESSTEK ProFire Technology hereinafter
referred to as the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press. The definition
"[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press" shall include any and all presses
which meet the foregoing description during the term of this Agreement. The
Specification for the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press is attached
hereto as Exhibit C.
c. Consumables. Printing plates in roll form using PRESSTEK's
PEARLdry technology and PEARLdry cleaning towels (as identified in Exhibit D and
as modified, updated, revised and/or replaced with functionally equivalent
products pursuant to written agreement during the term hereof) which constitute
consumable products for use in the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press
and [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press ("Consumables"). The parties
agree that XEROX may purchase consumable products other than plates and cleaning
towels identified in this Section, from other third parties in its discretion.
PRESSTEK shall have no liability, warranty or service obligation for consumable
products not supplied by PRESSTEK.
d. Specifications. The Specifications for the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Press and [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press
attached hereto
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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as Exhibits B and C are the current specification for the pre-production
implementation of these Products. These Specifications are subject to
modification by PRESSTEK from time to time during the ongoing testing and
evaluation of these units in the exercise of its reasonable engineering
judgment, with timely notification to XEROX. During the period of testing and
evaluation: (a) PRESSTEK shall obtain XEROX' written consent prior to
implementing, changes in the Specification which affect form, fit or function of
the Products, and (b) XEROX shall have the right to request modification of the
current Specification subject to approval by PRESSTEK. In the event any
modification to the Specification increases the engineering or manufacturing
cost of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press or [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Press, such cost increase shall be borne by the party
requesting the modification except as otherwise agreed by the parties in writing
and if such modification is proposed or requested by XEROX, the parties agree to
negotiate in good faith any and all proprietary rights associated therewith. In
the event the parties fail to reach written agreement pursuant to this Section,
PRESSTEK agrees that all rights in and ownership of any writings, discoveries,
innovations, inventions, patents, copyrights, trade secrets, know-how, and other
similar forms of intangible property or proprietary information (collectively
"Developed Intellectual Property") which relate to or result from such
modification request will reside with the Party whose employee(s) or agent(s)
first conceived, or made, or reduced to a tangible medium of expression the
Developed Intellectual Property. [CONFIDENTIAL TREATMENT REQUESTED]/*/ PRESSTEK
shall not be required to undertake implementation of any modification requested
or proposed by XEROX in the absence of a development agreement satisfactory to
PRESSTEK.
e. Commercial Availability. The provisions of this Agreement
contemplate that the Products will be commercially available no later than
[CONFIDENTIAL TREATMENT REQUESTED]/*/ months after receipt of first order from
XEROX (the "Available Date"). In the event that the Products are not
commercially available until after the Available Date, the time in which the
parties' obligations must be performed as stated herein shall be extended by an
amount of time commensurate with the delay in commercial availability, with the
exception of payment of the Distribution Fee; provided, however, that if
Products are still not commercially available as of [CONFIDENTIAL TREATMENT
REQUESTED]/*/ months after the Available Date, XEROX may terminate this
Agreement without any further liability upon written notice to PRESSTEK, and
PRESSTEK shall refund any and all payments of the Distribution Fee made by XEROX
prior to the effective termination date. For the purpose of this Agreement,
"commercially available" shall mean that conforming Product(s) are available to
be shipped and delivered to a customer with a lead time of (i) [CONFIDENTIAL
TREATMENT REQUESTED]/*/ months for [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses, (ii) [CONFIDENTIAL TREATMENT REQUESTED]/*/ months for [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Presses, and (iii) [CONFIDENTIAL TREATMENT REQUESTED]/*/
days for Consumables.
f. Future Products. The parties contemplate that additional
PRESSTEK products may be added to the products referred to in this Section for
sale by XEROX on terms and conditions to be negotiated by the parties. It is the
intent of the parties that such additional products shall be added by addendum
to this Agreement and that the terms and conditions of this Agreement shall
apply to such additional products, except to the extent such terms they are
altered or modified in any such addendum.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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4. DISTRIBUTION AGREEMENT FEE. In consideration of PRESSTEK's
investment in the development and acquisition of technology incorporated in the
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press, XEROX shall pay PRESSTEK a nonrefundable, noncancelable
(except as expressly provided herein) Distribution Agreement Fee, in addition to
any and all other payments called for by this Agreement. The Distribution
Agreement Fee shall be paid without regard to the quantity of Products purchased
by XEROX and without regard to the payment for such Products, and without regard
to whether XEROX's distribution rights are exclusive or semi-exclusive. The fee
shall be paid, in an amount to be calculated as follows:
a. Initial Term. XEROX shall pay PRESSTEK a Distribution
Agreement Fee equal to US [CONFIDENTIAL TREATMENT REQUESTED]/*/ in quarterly
payments of [CONFIDENTIAL TREATMENT REQUESTED]/*/ each, payable on March 15,
June 15, September 15, and December 15, in each of the calendar years
[CONFIDENTIAL TREATMENT REQUESTED]/*/.
b. Renewal Term. If the term of this Agreement is extended for
an additional three-year term pursuant to the provisions hereof, then XEROX
shall pay PRESSTEK an additional Distribution Agreement Fee in the amount of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ to be paid as follows: XEROX shall remit
payments to PRESSTEK quarterly in amounts equal to [CONFIDENTIAL TREATMENT
REQUESTED]/*/ of each PRESSTEK invoice to XEROX for Products in the immediately
preceding calendar quarter beginning March 31, [CONFIDENTIAL TREATMENT
REQUESTED]/*/ and proceeding with quarterly invoices until payment is complete.
Payment shall be due within [CONFIDENTIAL TREATMENT REQUESTED]/*/ days from
receipt of a correct invoice.
5. CO-BRANDING AND TRADEMARKS. The Products to be supplied pursuant to
this Agreement shall be co-branded and shall carry the XEROX name and the
PRESSTEK DI logo. The format in which the XEROX name and PRESSTEK DI logo shall
be applied to the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press, the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Press, and packaging for Consumables is shown in Exhibit
E attached to this Agreement. Any changes in the manner of application of the
XEROX name, PRESSTEK DI logo and/or manufacturing company's name (as set forth
in subsection (b) below) shall be subject to written agreement between the
parties.
a. No Trademark/Tradename Usage. Except as provided in the
foregoing Subsection, nothing in this Agreement shall authorize PRESSTEK or
XEROX to use any trademark and/or trade name of the other party without the
prior written consent of the other party. Any and all promotional materials used
by a party in the promotion, marketing and sale of products pursuant to this
Agreement bearing a trademark of the other party shall be subject to review and
approval by the other party as to the form and content of such use, such
approval not to be unreasonably withheld, conditioned or delayed. All rights and
goodwill in the trademarks of either party accruing as a result of the use of
such trademark by the other party in any country shall inure to the benefit of
the party owning the trademark, and the other party shall acquire no rights in
any such ▇▇▇▇ by virtue of such use pursuant to this Agreement.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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b. Manufacturer's ▇▇▇▇. In addition to the XEROX and PRESSTEK
trademarks indicated above, the manufacturing company's name shall be placed on
the non-operator side of the Press in the formats set forth in Exhibit F.
6. PRE-PRODUCTION UNITS. PRESSTEK shall sell and XEROX shall purchase
pre-production units of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press as follows:
a. Preproduction [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses. PRESSTEK shall sell and XEROX shall purchase [CONFIDENTIAL TREATMENT
REQUESTED]/*/ pre-production [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses which
comply with mutually agreed-upon specifications for testing and evaluation. The
parties anticipate that [CONFIDENTIAL TREATMENT REQUESTED]/*/ such presses shall
be five-color versions of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and
[CONFIDENTIAL TREATMENT REQUESTED]/*/ shall be four-color versions of the
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press. The terms and conditions of such
sale shall be as follows:
(i) The price for the pre-production units of the
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press shall be [CONFIDENTIAL
TREATMENT REQUESTED]/*/ each for the five-color press and [CONFIDENTIAL
TREATMENT REQUESTED]/*/ each for the four-color press.
(ii) Delivery of the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ pre-production [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses will commence on [CONFIDENTIAL TREATMENT REQUESTED]/*/ and will
be at the rate of [CONFIDENTIAL TREATMENT REQUESTED]/*/ thereafter.
Such sales shall be FOB Port of Export, with title and risk of loss
passing to XEROX when the Products pass over the ship's rail at the
port of loading. PRESSTEK shall invoice Xerox for the Products when
they are prepared for shipment at the manufacturing facility in the
[CONFIDENTIAL TREATMENT REQUESTED]/*/.
(iii) XEROX shall issue a purchase order for the
preproduction units of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press
within [CONFIDENTIAL TREATMENT REQUESTED]/*/ days of execution hereof.
PRESSTEK shall invoice XEROX as follows: (i) upon receipt of XEROX'
purchase order for the [CONFIDENTIAL TREATMENT REQUESTED]/*/ units,
PRESSTEK shall issue an invoice in the amount of [CONFIDENTIAL
TREATMENT REQUESTED]/*/; and (ii) thirty days thereafter, PRESSTEK
shall issue an invoice in the amount of [CONFIDENTIAL TREATMENT
REQUESTED]/*/. XEROX shall remit payment [CONFIDENTIAL TREATMENT
REQUESTED]/*/ days following receipt of such invoices, and such payment
shall constitute an advance against the invoices to be issued pursuant
to Subsection (ii) above. Payment of invoices for the balance due and
owing for such pre-production [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses shall be remitted by XEROX [CONFIDENTIAL TREATMENT
REQUESTED]/*/ days following receipt by XEROX of PRESSTEK's correct
invoice.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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(iv) In addition to the payment for pre-production
presses, XEROX shall pay PRESSTEK a service/upgrade fee in the amount
of [CONFIDENTIAL TREATMENT REQUESTED]/*/, which shall be invoiced in
two parts: [CONFIDENTIAL TREATMENT REQUESTED]/*/ on [CONFIDENTIAL
TREATMENT REQUESTED]/*/, 2001, and [CONFIDENTIAL TREATMENT
REQUESTED]/*/ on [CONFIDENTIAL TREATMENT REQUESTED]/*/, 2001. Such
invoices shall be payable net [CONFIDENTIAL TREATMENT REQUESTED]/*/
days from XEROX' receipt of PRESSTEK's correct invoice in accordance
with the foregoing. In consideration of such service/upgrade fee and at
no further cost to XEROX, PRESSTEK shall deliver, install and provide
customer training for the [CONFIDENTIAL TREATMENT REQUESTED]/*/
pre-production presses and service the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ pre-production units for a period of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ after the date of installation and shall
upgrade such [CONFIDENTIAL TREATMENT REQUESTED]/*/ pre-production
presses to production performance levels and full compliance with the
Specifications at the conclusion of pre-production testing and
evaluation, the foregoing at such locations as XEROX may direct in its
discretion. Delivery of upgrade components shall be made at the expense
of PRESSTEK.
b. Preproduction [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses. PRESSTEK shall sell and XEROX shall purchase [CONFIDENTIAL TREATMENT
REQUESTED]/*/ pre-production [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses for
testing and evaluation at a price of [CONFIDENTIAL TREATMENT REQUESTED]/*/ each.
PRESSTEK shall deliver the [CONFIDENTIAL TREATMENT REQUESTED]/*/ pre-production
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses in [CONFIDENTIAL TREATMENT
REQUESTED]/*/ 2000. The pre-production [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses shall be invoiced when they are shipped and payment terms for the
pre-production [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses shall be
[CONFIDENTIAL TREATMENT REQUESTED]/*/ days following Xerox' receipt of
PRESSTEK's invoice therefor, which invoice shall be issued no earlier than
shipment of such Presses. Title to the [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses and risk of loss shall pass to XEROX FOB [CONFIDENTIAL TREATMENT
REQUESTED]./*/
c. DRUPA "Potential Customer" List. PRESSTEK shall provide
XEROX all information concerning the "intent to buy" list generated at DRUPA
2000 and thereafter and all rights to such list. The customers on such list
expressing their intent to buy shall become potential customers of XEROX for
XEROX sales of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ and [CONFIDENTIAL
TREATMENT REQUESTED]/*/ presses and XEROX shall take full responsibility for
communication and contracting with such customers.
d. Invoice Rejection. If any invoice received by XEROX is not
"correct" as to units purchased and price, XEROX shall notify PRESSTEK in
writing within ten (10) business days of receipt of the invoice. Such invoices
shall be deemed correct and accepted if PRESSTEK is not notified within such
period. PRESSTEK will promptly deliver a corrected invoice.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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7. COMMERCIAL PRODUCTION. After completion of the pre-production
Presses pursuant to Section 6 above, PRESSTEK shall sell to XEROX and XEROX
shall purchase commercial production of the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press and [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press as follows.
a. Product Pricing. The price of the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press, [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and Consumables
shall be as set forth in Exhibit G attached to this Agreement. The price of such
Products shall be firm for the term hereof, subject to the parties' semi-annual
review and commercially reasonable efforts to reflect manufacturing cost
changes, currency fluctuations and any cost changes pursuant to written
modification. Any changes in prices for Products shall apply prospectively and
shall not apply to four-month, noncancelable firm orders.
b. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
c. Final Specification. Upon release to production of the
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press the Products shall be manufactured pursuant to a final
Specification developed by PRESSTEK in cooperation with XEROX (as necessary) and
agreed upon by the parties hereunder pursuant to written amendment. PRESSTEK
shall provide drafts of any changes anticipated in the Specification to XEROX as
they are developed prior to release to production of any Product. The
Specification shall be subject to modification (in order to improve
manufacturing or operating efficiencies or overall system performance) as agreed
by the parties in writing.
d. Product Changes. The Product(s) delivered hereunder shall
incorporate the latest improvements implemented by PRESSTEK, subject to XEROX'
prior written agreement. In requesting such approval, PRESSTEK shall inform
XEROX, in writing, of the date of the proposed incorporation of such changes
into the Product(s) and description of changes affecting the:
(i) Form (external appearance of finished Product(s)
or piece parts, or external dimensions, dimension tolerances or shape);
(ii) Fit (provisions for mounting; changes to
mounting holes, holes for mounting shipping restraints, or holes or
fittings for mounting accessory or optional features; 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);
(iii) Function (changes in the Specification,
Product(s) performance, or any changes affecting Product(s)
reliability); and/or
(iv) Compatibility of the Product(s) (changes to or
which affect Product(s) operation or Product(s) Spares, internal logic
or timing which might affect application of the Product(s), part number
or configuration dash number of parts which can be replaced in the
field,
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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the interchangeability of Spares, service documentation which might
affect a customer's application for the Product(s)).
XEROX shall respond within thirty (30) days to each engineering change order
received from PRESSTEK requesting Product(s) changes indicating its acceptance
or rejection of such change.
e. Effect of Changes. In the event that any change in the
form, fit or function or Specification of any Product(s) in order to comply with
mutually agreed upon requirements or standards other than Mandatory Retrofits
results in a significant increase or decrease in the cost of such Product(s), or
in the length of time required for the manufacture or delivery thereof, an
equitable adjustment to the price of such Product(s) or agreed upon shipping
date or both shall be made by the parties pursuant to good faith negotiations.
f. Mandatory Retrofits. PRESSTEK shall promptly notify XEROX
of the need for any Mandatory Retrofits and work with XEROX to establish a
mutually agreeable schedule for installing the foregoing. PRESSTEK shall be
responsible for all costs associated with Mandatory Retrofits. The parties will
use best efforts to minimize the cost of implementation of Mandatory Retrofits.
g. Schedule for Changes. Any changes made by PRESSTEK and
accepted by XEROX pursuant to this Article shall be implemented in accordance
with a schedule mutually agreed upon in the written notification of change. Such
changes shall be incorporated into Product(s) shipped pursuant to Purchase
Orders received by PRESSTEK after XEROX approved such changes. If applicable,
the serial number of the first such changed Product(s) shall be identified to
XEROX and PRESSTEK agrees that all Product(s) with serial numbers greater than
such serial number shall incorporate such changes.
h. Obsolete Inventory. In the event of changes to Product(s),
PRESSTEK shall re-purchase from XEROX all Spares and Consumables which are in
XEROX' inventory and which have become obsolete as a result of any change to
Product(s), other than a Product(s) change requested by XEROX. The foregoing
shall not apply to Spares or Consumables which are outside the warranty period
or have a shelf date more than [CONFIDENTIAL TREATMENT REQUESTED]/*/ from
shipment.
i. Final Order Opportunity. In the event that XEROX rejects a
proposed change to Products and notwithstanding any provision herein to the
contrary, XEROX shall have the opportunity to place a final order for units of
Product at the current applicable price(s) and Specification(s) to be delivered
over a negotiated period of time.
j. XEROX Change Requests. XEROX shall have the right to
request modification of the Specification, which modifications shall be subject
to approval by PRESSTEK, such approval not to be unreasonably withheld. Any such
modification to the Specification which increases the engineering or
manufacturing cost of the Press shall result in an increase in the price of the
Press by an amount reasonably related to the cost of such increase and such
increase shall be borne by XEROX, unless otherwise agreed by the parties in
writing. In the event the parties fail to reach written agreement pursuant to
this Section, PRESSTEK agrees that all rights in and ownership of any writings,
discoveries, innovations, inventions, patents, copyrights, trade secrets,
know-how, and other similar forms of
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-9-
intangible property or proprietary information (collectively "Developed
Intellectual Property") which relate to or result from such modification request
will reside with the Party whose employee(s) or agent(s) first conceived, or
made, or reduced to a tangible medium of expression the intellectual property.
[CONFIDENTIAL TREATMENT REQUESTED]/*/ PRESSTEK shall not be required to
undertake implementation of any modification requested or proposed by XEROX in
the absence of a development agreement satisfactory to PRESSTEK.
k. Press Packaging. PRESSTEK shall deliver [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Presses and [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses appropriately packaged and addressed for shipment at such time and by
such carrier and to such destination as specified by XEROX in shipment releases
transmitted to PRESSTEK pursuant to this Agreement.
l. Consumables Packaging. Consumables shall be sold to XEROX
appropriately packaged, ex works Hudson, New Hampshire.
m. Payment. Payment for Products sold to XEROX pursuant to
this Agreement shall be in accordance with the ordering procedure set forth in
this Agreement. All payments due pursuant to such procedure shall be payable as
provided in such procedure. Except as expressly otherwise provided herein, all
invoices rendered by PRESSTEK pursuant to the terms of this Agreement shall be
paid [CONFIDENTIAL TREATMENT REQUESTED]/*/ days from the date of XEROX' receipt
of PRESSTEK's correct invoice or from the date of product shipment, whichever is
later.
8. DEMO PRODUCTS. During the preproduction and commercial availability
periods hereunder, XEROX may elect to make one five color [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Press and one [CONFIDENTIAL TREATMENT REQUESTED]/*/
Press available to PRESSTEK for customer demonstration purposes at PRESSTEK's
facility. The parties agree to negotiate in good faith terms and conditions
concerning such provision of demo units hereunder, such terms and conditions to
include services provided by PRESSTEK and scope of use of such Products.
9. DELIVERY/PASSAGE OF TITLE & RISK OF LOSS. Title and risk of loss for
all Presses and Spares shall pass to Xerox (a) [CONFIDENTIAL TREATMENT
REQUESTED]/*/, in the case of shipments made by sea, and (b) [CONFIDENTIAL
TREATMENT REQUESTED]/*/, in the case of all shipments by road or rail which are
not intended for lading on any vesseland (c) in the event of shipment by air,
pursuant to the parties' subsequent written agreement. [CONFIDENTIAL TREATMENT
REQUESTED]/*/. Presstek shall itemize its costs for such freight/transportation
on its invoice to Xerox, separate from the Press/Spares price, and Xerox shall
reimburse Presstek at PRESSTEK's cost without markup or additional fees or
charges. Terms of sale and delivery for domestic (in-country) sales will be
[CONFIDENTIAL TREATMENT REQUESTED]/*/ subject to the further terms and
conditions of a separate agreement to be negotiated by the parties. PRESSTEK
shall furnish XEROX and/or Xerox' designated Customhouse broker or freight
forwarder with a pro forma or commercial invoice, showing the price to be paid
by Xerox for each shipment of Presses and Spares, and separately itemizing any
freight, insurance, or other transportation charges which PRESSTEK may have
prepaid on Xerox' behalf. Such freight, insurance or other transportation
charges shall be stated at PRESSTEK's cost, without any
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-10-
markup or other charge. The invoice shall be addressed to the Xerox company
which issued the purchase order for the Presses/Spares, or as directed by Xerox.
10. QUALITY ASSURANCE. PRESSTEK and its manufacturers shall provide the
following quality assurance.
a. Quality Requirements. All Product(s) produced and delivered
to XEROX shall fully comply with the Specifications as further set forth herein.
Reliability of Product(s) shall meet or exceed the requirements of such
Specifications.
b. ISO 9000 Quality Systems Registration Requirements.
PRESSTEK and/or its manufacturers will use commercially reasonable efforts to
have a quality system which is registered to ISO 9001 and ISO 9000-3 (TC176
Approved equivalent) or is in the process of obtaining such registration. Any
costs associated with obtaining the initial registration or maintenance thereof
shall be the sole responsibility of PRESSTEK. To the extent that PRESSTEK and/or
its manufacturers do not comply with the foregoing requirement, PRESSTEK and/or
its manufacturers shall comply with the XEROX Quality Assurance Requirements
("EIQP") and complete a survey to confirm such compliance. Existing
PRESSTEK/manufacturer quality procedures which totally comprehend any quality
plan elements may be used to satisfy the plan and will become the basic
operating document for assuring compliance to XEROX' quality requirements.
PRESSTEK and/or its manufacturers agree to develop a corrective action plan
within thirty (30) days for any shortfalls identified in compliance as a result
of such survey, which action plan shall be implemented within a mutually
agreeable time.
c. Acceptance Inspection. XEROX shall have the right to
conduct, at its expense at PRESSTEK'S and/or its manufacturer's facility, an
acceptance inspection of the Product(s) to ensure compliance with the
Specifications. PRESSTEK agrees that it shall correct any nonconforming Product
that has been rejected as a result of acceptance inspection by a method mutually
agreed by the parties. All Product(s) corrected by PRESSTEK pursuant to this
Section shall be subject to all quality assurance and inspection requirements in
accordance with the provisions hereof.
d. Source Verification. XEROX shall have the right to conduct,
at its expense, source verification activities, in accordance with the PRESSTEK
Quality Assurance Procedures set forth in Exhibit H at PRESSTEK and third party
manufacturing sites for Products. XEROX must provide notification of intent to
perform a source verification to PRESSTEK a minimum of 2 weeks prior to the
requested source verification date. XEROX may elect to establish a fixed source
verification date by month, quarter, biannually or annually. PRESSTEK shall have
the right to attend all source verifications at its manufacturers' location(s).
All source verifications will be conducted and reported based on the acceptance
inspection criteria set forth in this Section and Exhibit H.
11. ORDERING/FORECAST PROCEDURE. The parties shall follow the following
ordering and payment procedure with regard to Products.
a. Purchase Orders. XEROX shall provide PRESSTEK with a
blanket purchase order with [CONFIDENTIAL TREATMENT REQUESTED]/*/ -month
forecasted Press shipment requirements, with the first [CONFIDENTIAL TREATMENT
REQUESTED]/*/ months representing
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-11-
firm, noncancelable orders. Changes to this [CONFIDENTIAL TREATMENT
REQUESTED]/*/ -month purchase order may be submitted monthly to PRESSTEK.
Monthly Press shipment requirements beyond the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ -month firm period may be reduced by up to [CONFIDENTIAL TREATMENT
REQUESTED]/*/ percent of the original forecast. Forecasted monthly press
shipments beyond [CONFIDENTIAL TREATMENT REQUESTED]/*/ months may be increased
or decreased by up to [CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the
original forecast. PRESSTEK will make commercially reasonable efforts to
accommodate requested monthly shipment increases that have less an [CONFIDENTIAL
TREATMENT REQUESTED]/*/ -month notification. XEROX shall place the first
purchase order for [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses not later than
[CONFIDENTIAL TREATMENT REQUESTED]/*/ and [CONFIDENTIAL TREATMENT REQUESTED]/*/
for [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses. On or before the 15th day of
each calendar quarter (April 15th, July 15th, October 15th, January 15th), XEROX
will submit a new order/forecast outlining the next [CONFIDENTIAL TREATMENT
REQUESTED]/*/-month Press shipment requirements. Each such forecast/order shall
specify the Presses and features desired and the quantity and month of delivery
requested. For the first [CONFIDENTIAL TREATMENT REQUESTED]/*/ months of the
forecast period, XEROX will designate the Press with adequate specificity so
that the Press can be fully manufactured (four or five color, Perfector and
location, and voltage/frequency); the forecast for the next [CONFIDENTIAL
TREATMENT REQUESTED]/*/ months of the forecast period shall be in adequate
detail to order parts and components for the manufacture of such Presses; and
the forecast for the last [CONFIDENTIAL TREATMENT REQUESTED]/*/ months of the
forecast period shall be sufficient for the ordering of long-lead time parts and
components for such Presses. The parties shall cooperate fully with one another
in the formulation of such descriptions.
b. Shipment Releases. A shipment release document, which
specifies the shipping address of Presses ordered, is required by the first day
of the requested shipping month. If XEROX fails to provide shipment releases for
Presses which are the subject of firm orders pursuant to this Subsection by the
end of the month during which the Presses are scheduled for shipment, PRESSTEK
may ship such Presses to a default address or consign the Presses to an isolated
location at the manufacturing facility or to a bonded warehouse and invoice
XEROX for the final payment for such Presses. Payment for such Presses shall be
due pursuant to the payment terms of this Agreement from the date of XEROX'
receipt of correct invoice without regard to the actual date of shipment. Such
products shall be stored in a facility agreed to between the parties, and the
costs of such storage shall be paid by XEROX.
c. Installment Payments for Presses. Except with respect to
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses ordered in the first [CONFIDENTIAL
TREATMENT REQUESTED]/*/ months following the Available Date, the pay terms for
which the parties shall negotiate in good faith in an amendment hereto, payment
for each [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press ordered shall be due in the
following installments: [CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the
applicable price per Exhibit G shall be due [CONFIDENTIAL TREATMENT
REQUESTED]/*/ days prior to 15th of the month of the intended shipment
("Shipment Month"), [CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the
applicable price per Exhibit G shall be due [CONFIDENTIAL TREATMENT
REQUESTED]/*/ days prior to the Shipment Month, [CONFIDENTIAL TREATMENT
REQUESTED]/*/ percent of the applicable price per Exhibit G shall be due prior
to shipment release, and [CONFIDENTIAL
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-12-
TREATMENT REQUESTED]/*/ percent of applicable price per Exhibit G shall be due
[CONFIDENTIAL TREATMENT REQUESTED]/*/ days following shipment. Payment for each
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press ordered shall be due in the
following installments: [CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the
applicable price per Exhibit G shall be due [CONFIDENTIAL TREATMENT
REQUESTED]/*/ days prior to the Shipment Month, and the balance of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ percent of the applicable price per Exhibit G shall be
due [CONFIDENTIAL TREATMENT REQUESTED]/*/ days following shipment. Payment for
Consumables shall be due [CONFIDENTIAL TREATMENT REQUESTED]/*/ days from
shipment. All payments are due following XEROX' receipt of a correct invoice,
subject to the provisions of Section 7(m). To the extent PRESSTEK has not
received payment when due, PRESSTEK may suspend its obligations to manufacture
and deliver the Press for which payment is due but not received. If in any
forecast the number of Presses projected during the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ or [CONFIDENTIAL TREATMENT REQUESTED]/*/ month of such projection
period decreases within the allowable limits provided herein, any and all
amounts previously paid for such Press pursuant to this Section shall be
refunded or credited against future amounts due, at XEROX' election.
d. Anything in this Section to the contrary notwithstanding,
PRESSTEK shall not be deemed in breach of its obligations to deliver Presses
pursuant to this Agreement if PRESSTEK is prevented from doing so by reason of
any circumstance or occurrence constituting force majeure pursuant to the terms
of Section 36 of this Agreement.
12. WARRANTY.
a. Products/Parts. Upon delivery of each Press pursuant to
this Agreement, PRESSTEK warrants and represents to XEROX that for a period of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ days from the date of PRESSTEK's
installation at the customer location, but in no event more than [CONFIDENTIAL
TREATMENT REQUESTED]/*/ months after the date of shipment to XEROX, whichever is
sooner, Presses shall be free from material defects in materials and workmanship
and shall substantially perform in accordance with the Specifications for such
Press. PRESSTEK shall repair or replace any defect in Product parts, without
charge for the parts, for a period of [CONFIDENTIAL TREATMENT REQUESTED]/*/ from
the date of installation at the customer location but in no event more than
[CONFIDENTIAL TREATMENT REQUESTED]/*/ months after the date of shipment to XEROX
for such Press, whichever is sooner, and PRESSTEK's standard labor charges shall
apply. In fulfillment of the parts warranty obligation, PRESSTEK may, at its
option and expense, replace the entire system (or sub-system) if such
replacement is deemed more cost effective and/or more expeditious.
b. Additional Warranties. PRESSTEK further warrants and
represents that: (i) it has good and marketable title to all Product(s)
delivered hereunder and that all units of Product(s) shall be free and clear of
all liens, encumbrances, security interests; and (ii) it has the right to convey
to XEROX the rights respecting Product(s) granted in this Agreement; and (iii)
software and firmware shall be free in all material respects from program errors
and conform with applicable Specifications for a period of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ from the date of installation at the customer location
but in no event more than [CONFIDENTIAL TREATMENT REQUESTED]/*/ months after the
date of shipment to XEROX for such Press, whichever is sooner; and (iv)
Software/firmware media, if
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-13-
any, shall be materially free from defects in workmanship and materials for a
period of [CONFIDENTIAL TREATMENT REQUESTED]/*/ months from delivery to the
customer location; (v) except as otherwise agreed by the parties, Products shall
be manufactured from new parts; and (f) Consumables shall be free from material
defects in materials and workmanship and shall substantially perform in
accordance with the Specifications for a period of [CONFIDENTIAL TREATMENT
REQUESTED]/*/ from date of shipment.
c. Systemic Defects Definition. "Systemic Defects" shall mean
a defect in the design, materials, or manufacturing which occurs in identical or
substantially similar form or from a substantially similar cause (i) in at least
[CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the units of Product delivered,
when less than [CONFIDENTIAL TREATMENT REQUESTED]/*/ units are delivered in any
particular [CONFIDENTIAL TREATMENT REQUESTED]/*/ day period; or (ii) in at least
[CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the units of Product delivered,
when [CONFIDENTIAL TREATMENT REQUESTED]/*/ or more units are delivered in any
[CONFIDENTIAL TREATMENT REQUESTED]/*/ day period; or (iii) more than
[CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the units of Product(s) which
are in XEROX' inventory or which are installed at customer locations.
d. Systemic Defects. Notwithstanding the warranty requirements
and conditions set forth in this Section, PRESSTEK will undertake without charge
and without delay to promptly remedy any Systemic Defect in all affected
Product(s) in inventory or in the field, by delivering to XEROX a replacement
Product(s) or otherwise correct the defect as agreed upon by the parties.
PRESSTEK shall not be required to cure any Systemic Defect for any Product(s)
which have been subjected to accident, negligence, misuse, alteration,
modification, tampering or causes other than ordinary use. At XEROX' request,
PRESSTEK shall provide to XEROX kits containing the necessary software or
hardware to correct the Systemic Defect for all affected units of Product(s) or,
if XEROX reasonably believes it is probable that the Systemic Defect will affect
at least substantially all units of Product(s) then located either at customer
locations or in XEROX' inventory, PRESSTEK shall provide at its' expense XEROX
with the kits for all such units of Product(s).
e. Warranty Obligations. During the applicable warranty
periods set forth herein, the liability of PRESSTEK under the warranty set forth
in this Section shall be limited to the following, as PRESSTEK may elect: (i)
with respect to hardware components of the Products, within fifteen business
days of XEROX' notice of the defect or nonconformity and at PRESSTEK's sole
expense, either (a) to repair or make nonconforming parts or Products
conforming; or (b) to replace nonconforming parts or Products with conforming
parts or Products; and (ii) with respect to the software portion of the Products
and at PRESSTEK's sole expense, PRESSTEK shall use best efforts based on the
severity of the problem in accordance with industry standards to correct errors
or provide workarounds or obtain such services from third party software vendors
within the time periods set forth in the addendum referenced in Section 16
f. Warranty Disclaimer. This warranty shall apply only to
Presses which have been installed by PRESSTEK or XEROX authorized personnel and
shall not apply to Products which have been misused or used in an unauthorized
or improper manner without following normal operating procedures. The foregoing
warranty shall not apply to adjustment, modifications, replacements or repair,
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-14-
or increases in maintenance service time caused by: electrical work external to
the Presses or components, the attachment of accessories or other devices or
software not furnished or authorized by PRESSTEK, or the failure to properly
maintain the same where the problem arises from XEROX-supplied components or
software; accident, transportation, neglect or misuse; alterations, which shall
include, but not be limited to, installation or removal features or any other
modification, whenever any of the foregoing is preformed by entities or persons
other than PRESSTEK or authorized by PRESSTEK; failure to provide and maintain a
suitable installation environment, with all facilities prescribed by the
appropriate specifications therefor (including, but not limited to, failure of,
or failure to provide, adequate electrical power, air conditioning or humidity
control) or from use of supplies or materials not meeting such specifications;
the use of the Presses for other than the purposes for which they were designed;
service of Presses or components which have been modified, removed, installed or
re-installed by someone other than PRESSTEK's support personnel or its
authorized representatives (including without limitation XEROX); the Press has
not been properly installed, used, and maintained in accordance with the
operating instructions and maintenance manuals supplied by PRESSTEK; XEROX'
failure to notify PRESSTEK in writing during the warranty period with details on
any defect or error in the Product; the Product has been modified, changed,
repaired, reconfigured or adapted in any manner whatsoever without the express
written consent of PRESSTEK; and evidence of physical abuse or other
catastrophic causes external to the Press has occurred resulting in the
necessity for repair or replacements, to the extent the foregoing is not caused
by PRESSTEK, its representatives, agents and/or independent contractors.
g. New Warranties. All Product(s) repaired or replaced by
PRESSTEK under this Section shall be subject to XEROX' inspection and acceptance
in accordance with the provisions of this Agreement, and if accepted, shall be
extended new warranties in accordance herewith.
h. Limitation. PRESSTEK MAKES NO REPRESENTATION OR WARRANTY
WITH RESPECT TO THE PRODUCTS SUBJECT TO THIS AGREEMENT OTHER THAN THOSE SET
FORTH IN THIS SECTION. THE WARRANTY STATED HEREIN IS EXPRESSLY IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS
OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
SUCH WARRANTY CONSTITUTES THE ONLY WARRANTY MADE BY PRESSTEK WITH RESPECT TO
THIS AGREEMENT OR THE PRODUCT TO BE SUPPLIED HEREBY.
13. EXCLUSIVITY. Provided XEROX meets the threshold purchase volumes of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses established pursuant to this
Section, XEROX shall have the worldwide, exclusive marketing and sales right to
purchase and resell the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and
associated Consumables, and PRESSTEK shall not distribute the [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Press itself or through any third party, including
without limitation the third party manufacturer, during the period of such
exclusivity. If XEROX fails to meet the threshold purchase volumes for new
Presses (above the preproduction units) established pursuant to this Section
(except as a result of PRESSTEK's failure to deliver ordered Presses which
comply with the applicable Specifications or to otherwise comply with its
obligations hereunder), then PRESSTEK shall have the right to terminate the
exclusivity of XEROX' marketing and sales right and to convert it to a
semi-exclusive marketing and sales right upon written notice to XEROX.
[CONFIDENTIAL TREATMENT REQUESTED]/*/.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-15-
a. [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press Purchase
Threshold. In order to obtain the exclusive marketing and sales right with
respect to the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and associated
Consumables, XEROX must purchase from PRESSTEK [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Presses in the [CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period
commencing on the date of first commercial shipment of Presses (beyond the
preproduction units). To maintain its exclusive marketing and sales right for
subsequent [CONFIDENTIAL TREATMENT REQUESTED]/*/ -month periods, XEROX shall
purchase at least [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses during each such
subsequent [CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period. If by the end of
the [CONFIDENTIAL TREATMENT REQUESTED]/*/ month of any [CONFIDENTIAL TREATMENT
REQUESTED]/*/ -month period, the total number of [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Presses purchased and forecast for purchase for the remainder of
that [CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period falls below the annual
threshold of [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses for exclusivity
threshold for any [CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period, or if
XEROX fails to purchase at least [CONFIDENTIAL TREATMENT REQUESTED]/*/ percent
of the annual threshold of [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses for any
[CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period for each of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ quarters, and such failure is not due either to
PRESSTEK's breach or a force majeure event, then PRESSTEK may, in its
discretion, terminate XEROX' exclusivity for the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press upon written notice to XEROX and render the distribution
rights granted herein to the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press to be
[CONFIDENTIAL TREATMENT REQUESTED]/*/.
To maintain its [CONFIDENTIAL TREATMENT REQUESTED]/*/ marketing and sales right
with respect to the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and its
associated Consumables, XEROX must purchase from PRESSTEK [CONFIDENTIAL
TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses in the
[CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period commencing on the expiration
of exclusivity period. To maintain its [CONFIDENTIAL TREATMENT REQUESTED]/*/
marketing and sales right for subsequent [CONFIDENTIAL TREATMENT REQUESTED]/*/
-months periods, XEROX purchases of [CONFIDENTIAL TREATMENT REQUESTED]/*/
Presses shall be at least [CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses during
each such [CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period. If by the end of
the [CONFIDENTIAL TREATMENT REQUESTED]/*/ month of any [CONFIDENTIAL TREATMENT
REQUESTED]/*/ -month period, the total number of [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Presses purchased and ordered for the remainder of that period
falls below the annual threshold for that [CONFIDENTIAL TREATMENT REQUESTED]/*/
-month period, or if XEROX fails to purchase at least[CONFIDENTIAL TREATMENT
REQUESTED]/*/ percent of the annual threshold for that [CONFIDENTIAL TREATMENT
REQUESTED]/*/ -month period for each of [CONFIDENTIAL TREATMENT REQUESTED]/*/
quarters, and such failure is not due either to PRESSTEK's breach or a force
majeure event, then PRESSTEK may, in its discretion, terminate XEROX' rights of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ upon written notice to XEROX and render
the distribution rights granted herein to the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press to be non-exclusive.
b. [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press Purchase
Threshold. As to the [CONFIDENTIAL TREATMENT REQUESTED]/*/ Press and associated
Consumables, XEROX shall have a [CONFIDENTIAL TREATMENT REQUESTED]/*/ sales and
marketing right along with third party manufacturer [CONFIDENTIAL TREATMENT
REQUESTED]/*/, provided that XEROX' purchases of the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press during the term of this Agreement are at least [CONFIDENTIAL
TREATMENT REQUESTED]/*/ Presses for each [CONFIDENTIAL TREATMENT REQUESTED]/*/
-month period commencing on the date of first commercial shipment of Presses
(beyond the preproduction units). If by\
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/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-16-
the end of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ month of any such
[CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period, the total number of
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses purchased and ordered for the
remainder of that period falls below the annual threshold for that [CONFIDENTIAL
TREATMENT REQUESTED]/*/ -month period, or if XEROX fails to purchase at least
[CONFIDENTIAL TREATMENT REQUESTED]/*/ percent of the annual threshold for that
[CONFIDENTIAL TREATMENT REQUESTED]/*/ -month period for each of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ quarters, and such failure is not due either to
PRESSTEK's breach or a force majeure event, then PRESSTEK may, in its
discretion, terminate XEROX' exclusivity upon written notice to XEROX and render
the distribution rights granted herein to the [CONFIDENTIAL TREATMENT
REQUESTED]/*/ PRESS be non-exclusive.
14. DOCUMENTATION AND ESCROW.
a. Sales & Service Documentation. PRESSTEK shall provide to
XEROX, at no cost, all engineering drawings and documentation (by part number)
which, in XEROX' reasonable opinion, are necessary or appropriate to fulfill
XEROX' service obligations for the Product(s), at such time as XEROX assumes
service obligations or no longer contracts with PRESSTEK to provide service of
Products. PRESSTEK shall furnish to XEROX, on an ongoing basis during the term
hereof, free of charge, Documentation as XEROX may reasonably request in English
and other languages to be mutually agreed. In accordance with the foregoing,
XEROX may, at its option and expense, include Product descriptions and other
information in any XEROX or XEROX Company literature, prepare XEROX and XEROX
Company promotional literature relating to Products and distribute the same to
its sales force and customers, and include portions of PRESSTEK's copyrighted
works in such literature.
b. Customer Documentation and Other Information. PRESSTEK will
provide at no cost to XEROX one (1) full, complete and accurate set of user or
operator manuals for the Products (in the English and other languages mutually
agreed) so that XEROX and XEROX Companies can, on a periodic basis and as new
changes or additions occur, make copies thereof and distribute the same to its
sales force and customers. During the term of this Agreement, XEROX and XEROX
Companies may also include Product(s) description and information in any XEROX
or XEROX Company literature. The distribution of such literature by XEROX and
XEROX Companies will be at their sole expense.
c. Escrow. With respect to software components of the
Products, the parties shall execute within 90 days of the date hereof an Escrow
Agreement in substantially the form of the Escrow Agreement attached hereto as
Exhibit I with a third-party escrow agent to permit access to PRESSTEK's
software or source code for the Products upon any material failure by PRESSTEK
to maintain and/or support the software embedded in the Products.
15. SOFTWARE/FIRMWARE LICENSE. XEROX and XEROX Companies shall have the
worldwide, perpetual, non-transferable, royalty-free right and license to
distribute, market, lease and sublicense the Press operating software and
firmware encompassed within such Presses for internal use only in connection
with such Press, by itself or through XEROX-authorized dealers or distributors,
where and when, and under terms and conditions as determined by XEROX and XEROX
Companies, in connection with the marketing of the product(s). The license shall
be a nonexclusive, perpetual, internal use license to use the object code
version of the software or firmware on the Presses. The license granted in this
Agreement extends to and includes Updates and Maintenance Modifications.
PRESSTEK will provide XEROX written notification of pending new Updates and
Maintenance Modifications together
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MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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with the availability thereof sufficiently in advance of publication in order
for XEROX to react in a timely manner. Neither XEROX, its dealers, distributors
or the customer may copy, reproduce, sublicense or modify the software or
firmware embedded in the Press without PRESSTEK's written consent. Neither
XEROX, its dealers, distributors or the customer shall reverse engineer,
disassemble, decompile or analyze the source code of the software or firmware.
Neither XEROX, its dealers, distributors nor any customer shall remove or alter
any copyright or other intellectual property notice placed in the software or
firmware.
16. INSTALLATION, SERVICE SUPPORT AND TRAINING. PRESSTEK agrees to
provide customer installation, technical support and training under the prices
set forth in Exhibit G. The terms and conditions of such installation, service
support and training shall be set forth in an addendum to this Agreement and
shall be based substantially on the terms set forth in Exhibit J, and shall
incorporate the relevant Tax provisions contained in section 37 of this
Agreement. The parties shall use best efforts to complete and execute such
addendum within sixty (60) days of execution hereof. Additional service
offerings and options will be set forth in future addenda as required. The
parties agree that in the event that despite best efforts they are unable in
good faith to complete and execute the addendum required herein, the remaining
issues shall be elevated to senior management of each company for resolution.
17. [CONFIDENTIAL TREATMENT REQUESTED]/*/ OF PRESSES. PRESSTEK will
provide Press [CONFIDENTIAL TREATMENT REQUESTED]/*/ services to XEROX on a time
and materials basis, based on PRESSTEK's prevailing rates. Upon written request
by XEROX to PRESSTEK for [CONFIDENTIAL TREATMENT REQUESTED]/*/ services,
PRESSTEK will provide XEROX a written cost estimate for work required for the
final state of the [CONFIDENTIAL TREATMENT REQUESTED]/*/ required, including
location of work to be conducted, within 30 days of receipt of such request.
Work will commence on PRESSTEK's receipt of a XEROX purchase order. PRESSTEK
will use commercially reasonable efforts to minimize costs and time of such
services. All costs including transport shall be borne by XEROX. Payment shall
be received by PRESSTEK within [CONFIDENTIAL TREATMENT REQUESTED]/*/ days from
delivery of a correct invoice.
18. [CONFIDENTIAL TREATMENT REQUESTED]/*/ COOPERATION. PRESSTEK will
use commercially reasonable efforts to cooperate with XEROX to support the
development of an appropriate [CONFIDENTIAL TREATMENT REQUESTED]/*/ interface
for PRESSTEK Presses and will work with XEROX personnel to this end. The parties
will agree in writing on a development schedule, budget, milestones and
deliverables, and proprietary rights with respect to any such development, with
mutually agreeable allocation of costs and expenses, before undertaking any
development work or commitment of resources.
19. TECHNOLOGY IMPROVEMENTS. PRESSTEK will use reasonable commercial
efforts to provide engineering changes and/or improvements in the Presses upon
request by XEROX. Mutually agreed upon reliability engineering changes which are
necessitated by unreasonable failures of Press components will be performed by
PRESSTEK at PRESSTEK's expense. All other engineering change requests or
improvements will be done on a cost-plus-fee basis to be mutually agreed upon
between the parties. All improvements, modifications, enhancements, new features
or functionality added to the subject Presses shall be subject to the parties'
written agreement.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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20. COMMERCIAL COOPERATION. The parties will negotiate a mutually
agreeable business process for administering and implementing this Agreement.
21. INDEMNITY.
a. By PRESSTEK. PRESSTEK agrees, at its expense, to defend,
indemnify and hold XEROX, XEROX Companies, and their respective authorized
resellers, customers and officers, directors, employees and representatives
("Indemnities") harmless from any suit claim, demand, cause of action or
proceeding asserted by a third party against any of the indemnities alleging (i)
that any Product(s) violates any applicable safety or regulatory standard or has
caused personal injury (including death) or damage to property or (ii) the
infringement or misappropriation of such third party's intellectual property
rights (a "Claim"), provided that PRESSTEK is notified of the Claim by XEROX
within a reasonable time after XEROX learns of it, is given all reasonable
assistance by XEROX necessary for PRESSTEK to perform its obligations in respect
of the Claim and is given the sole right to control the defense and settlement
of the Claim.
b. Injunction; Disclaimer. Should the Products become, or in
PRESSTEK's opinion, be likely to become, the subject of a claim for infringement
under this section, PRESSTEK may (i) at its own expense and option, either
procure for XEROX the right to continue using such Subject Presses or replace
the same with non-infringing components having substantially equivalent features
and functionality, or modify the system so that it becomes non-infringing with
substantially equivalent features and functionality, or (ii) at XEROX' option,
remove and return the Subject Press and refund to XEROX a portion of the
payments received by PRESSTEK on the then aggregate depreciated value of the
Subject Press purchased under this Agreement (after deducting the time for
XEROX' customers' use and operation of the Subject Press prior to the time of
any final determination of infringement against PRESSTEK). PRESSTEK shall not be
obligated to defend or be liable for costs and/or damages under this section if
the alleged infringement arises out of a combination with or an addition to
PRESSTEK's software or equipment of equipment, devices or software not supplied
by PRESSTEK or with PRESSTEK's knowledge and consent, or from a modification,
service or support of the equipment or software after delivery by any person
other than PRESSTEK and/or its representatives, agents and independent
contractors. XEROX shall have the option to procure continued use at its own
expense.
c. By XEROX. XEROX shall indemnify and hold PRESSTEK and its
officers, directors, employees and representatives harmless from all claims,
losses, and damages which may arise from XEROX' installation or support of the
Products, including claims of customers based on misrepresentations made by
XEROX, inadequate installation, support or assistance by XEROX. XEROX shall, at
its expense, indemnify, hold harmless and, at the PRESSTEK's request, defend
PRESSTEK and its manufacturers, from and against any and all loss, cost,
liability or expense (including costs and reasonable fees of attorneys and other
professionals) arising out of or in connection with XEROX' performance under
this Agreement to the extent caused by any negligent act or omission or willful
misconduct of XEROX or XEROX' employees or independent contractors.
22. LIMITATION OF LIABILITY. EXCEPT FOR THE PARTIES' OBLIGATIONS OF
INDEMNITY AS EXPRESSLY PROVIDED IN SECTION 21 OF THIS AGREEMENT, WHICH SHALL BE
GOVERNED BY THEIR TERMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
OR ANY OTHER PERSON FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR
OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS OR DAMAGES TO ANY PARTY'S BUSINESS REPUTATION
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MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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OR GOODWILL, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION
FOR CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL
OR EQUITABLE GROUNDS, WHETHER OR NOT THE FIRST PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE
OF ANY REMEDY, AND IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY FOR
ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS,
OR ANY OTHER MATERIALS OR SERVICES FURNISHED HEREUNDER EXCEED THE GREATER OF US
[CONFIDENTIAL TREATMENT REQUESTED]/*/ OR THE PURCHASE PRICE OF PRODUCTS
(INCLUDING THE TECHNOLOGY DISTRIBUTION FEE) OUT OF WHICH SUCH CLAIM ARISES.
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ THE EXCLUSIVE LIABILITY AND OBLIGATION OF
PRESSTEK, AND THE EXCLUSIVE REMEDY OF XEROX, WITH RESPECT TO ANY CLAIM, SUIT OR
PROCEEDING INVOLVING ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
OF ANY THIRD PARTY IN CONNECTION WITH THE SALE AND DISTRIBUTION OF THE PRODUCTS.
23. TERM AND TERMINATION.
a. Term. The term of this Agreement shall commence upon
signature by the last party to execute the Agreement and continue in full force
and effect until [CONFIDENTIAL TREATMENT REQUESTED]/*/. The parties agree that
not less than 180 days prior to the expiration of any term or renewal term,
either party may notify the other party in writing of nonrenewal or, in the
absence of such notification, the parties agree to negotiate in good faith any
modifications and/or other terms and conditions for such renewal. The provisions
of this Section shall not apply to the sale of Spares, which shall be governed
solely by the provisions of the addendum referenced in Section 16.
b. Termination for Cause. Either party may terminate this
Agreement, or any Purchase Order issued under this Agreement effective
immediately upon written notice of termination to the other party in any of the
following events:
(i) If the other party materially breaches this
Agreement and such breach, if curable, is not cured within sixty (60)
days after written notice of breach by the terminating party;
(ii) If the other party's performance is delayed for
more than ninety (90) days for any reason, including Force Majeure
delays; or
(iii) 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 to manage its assets, and such petition,
assignment is not dismissed, vacated or terminated within ninety (90)
days. 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 365. Any such termination shall be automatically
effective at the end of any applicable notice period if any.
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MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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c. Continuity of Supply. If XEROX is committed to supply
Product(s) to its customers beyond such termination or expiration date, PRESSTEK
and XEROX agree to negotiate in good faith, and in a timely manner, terms and
conditions to allow XEROX to fulfill such commitments. In the absence of
agreement as to such terms and conditions, the parties agree to submit such
dispute to arbitration as set forth in Section 33 hereof, and PRESSTEK shall
continue to deliver Products to XEROX during the pendency of such arbitration at
price levels which were in effect immediately prior to such termination or
expiration. The arbitration can result in a retroactive change of the aforesaid
price levels.
d. Liability Limitation. Except as otherwise set forth in this
Agreement or with respect to obligations which survive the termination or
expiration of either (as applicable), XEROX' sole liability to PRESSTEK shall be
for the payment of any balance due and owing for conforming Products delivered
prior to the effective date of termination or expiration or within the firm
forecast period, and XEROX shall have no further liability whatsoever hereunder,
including without limitation or inventory, raw materials, work in process,
components, or any other expenses or damages. In the event of any breach the
nonbreaching party reserves all rights to pursue any and all legal remedies
available for such breach subject to the terms hereof.
e. Continuity of Service. XEROX shall retain all rights and
documentation necessary to continue servicing Product(s) sold and/or licensed
hereunder prior to any breach and the right to dispose of its inventory of
Product(s), subject to all payment obligations to PRESSTEK.
f. Survival. Any termination of this Agreement shall not serve
to eliminate any liability arising out of conduct prior to the actual date of
termination, including any uncontested accrued payment obligation, and either
party may, following such termination, pursue such remedies as may be available
with respect to such liabilities. Any and all such payments accrued hereunder as
of the date of termination shall remain due and payable in accordance with the
terms hereof. Termination of this Agreement shall immediately terminate all
licenses hereunder to the software or firmware within the Presses, except for
licenses to the software or firmware for Presses which have been previously paid
for by XEROX or Presses previously sold to customers.
24. Compliance with Laws. PRESSTEK and its manufacturers shall comply
in all material respects with (a) any applicable governmental laws and
regulations (including without limitation the Federal Trade Commission's
Enforcement Policy Statement on U.S. Origin Claims (62 F.R. 63756 [December 2,
1997]); (b) applicable governmental environmental and safety regulations and
standards (without self-certification in European Union countries, where
independent third party certification shall be obtained); and (c) those XEROX
requirements which are set forth in the Specifications applicable to this
Agreement and which are in effect at the time of shipment of all Product(s)
hereunder where such approval applies to PRESSTEK and its manufacturers. From
time to time it may be necessary for the parties to review the Agreement and
update the information for current requirements. PRESSTEK shall obtain, at no
cost to XEROX, full Regulatory Agency approvals as required for Product(s) in
accordance with the schedules shown in the Specification where such approval
applies to PRESSTEK/its manufacturers. PRESSTEK shall obtain, at no cost to
XEROX, any required Regulatory Agency reapprovals for any Product(s) which are
modified in any authorized manner hereunder.
25. RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement
shall be deemed to (a) make either party or any employee of such party the
agent, employee, joint venturer or
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partner of the other party; pr (b) provide either party or any employee of such
party with the power or authority to act on behalf of the other party or to bind
the other party to any contract, agreement or arrangement with any other person.
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 PRESSTEK 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 implicitly create, the legal status of partners or joint venturers.
All personnel employed or otherwise engaged by either party shall be the agents,
servants, and employees of such party only, and the other party shall incur no
obligations or liabilities, express or implied, by reason of the conduct of such
personnel.
26. WAIVER. Waiver by either party hereto of any breach or default by
the other party if any of the terms and conditions of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived.
27. COSTS AND EXPENSES. Except as otherwise provided in this Agreement,
each party hereto shall be responsible for its own expenses incurred in
connection with the performance of its obligations under such agreements.
28. ENTIRE AGREEMENT. This Agreement, together with all Exhibits,
represents the entire understanding and agreement between the parties hereto
with regard to the Products and supersedes all prior negotiations,
representations, and agreements made by and between the parties. No alteration,
amendment or modification of any of the terms or provisions of this Agreement
shall be valid unless made pursuant to an instrument in writing signed by each
of the parties hereto; provided however, that the waiver by either party hereto
of compliance by the other party with any provision hereof or of any breach or
default of such other party need by signed only by the party waiving such
provision, breach or default.
29. GOVERNING LAW. This Agreement and the Confidentiality Agreement
shall be governed by and interpreted in accordance with the laws of the State of
New York without regard to its conflict of laws principles. Any action to
enforce the terms of this Agreement shall take place in the courts located in
the State of New York and the parties consent to the venue and jurisdiction of
such courts. The parties specifically agree that the 1980 United Nations
Convention on Contracts for the International Sale of Goods, as such may be
amended from time to time, shall not apply to this Agreement. The definitions
set forth in the Incoterms of the International Chamber of Commerce, 2000
edition, shall be controlling.
30. NON-ASSIGNMENT. A party to this Agreement may not assign its rights
and obligations under this Agreement without the consent of the other party;
provided, however, that each party may assign this Agreement in connection with
(a) the sale of all or substantially all of the capital stock or assets of such
party, or (b) the acquisition by a third party of a party to this Agreement by
merger, consolidation, reorganization or other business combination whereby more
than fifty (50) percent of the voting securities of a party to this Agreement
are sold or transferred to a third party (a "Business Combination").
Notwithstanding the foregoing, in the event of a Business Combination of
PRESSTEK with a competitor of XEROX, XEROX shall have the right to terminate the
Agreement without any further obligation to pay any remaining installments of
the Distribution Fee and as further provided in Section 23(d). Both parties
agree, however, that PRESSTEK may delegate a portion of its obligations pursuant
to this Agreement to its subcontractors and manufacturers, provided that
PRESSTEX contractually obligates and guarantees the performance of the foregoing
and indemnifies XEROX against any and all claims, losses, demands, causes of
action or other liability which may arise in connection with
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MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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such delegation, subject to the terms of this Agreement, including sections
relating to warranty, indemnity and limitation of liability.
31. NOTICES. All notices provided for in this Agreement shall be
effective when they are served either by personal delivery, or sent by letter by
overnight courier service with acknowledgment of receipt required, or sent by
facsimile to the receiving party at the following address:
If to PRESSTEK:
---------------
Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
PRESSTEK, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to XEROX:
------------
▇▇▇▇▇▇▇ ▇▇▇▇
Mailstop 129-
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
XEROX Square MS 21-D
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
or such other addresses either party shall hereinafter designate in writing to
the other party.
32. INVALIDITY OF PROVISIONS. If any of the provisions of this
Agreement shall contravene the laws of any country, it is agreed that such
invalidity or illegality shall not invalidate the whole agreement, but such
agreement shall be construed as if it did not contain the provisions claimed or
held to be invalid or illegal in the particular jurisdiction concerned, insofar
as such construction does not materially affect the substance of such agreement,
and the rights and obligations of the parties hereto shall be construed and
enforced accordingly. In the event, however, that such claimed invalidity or
illegality shall substantially alter the relationship between the parties hereto
materially affecting adversely the interest of either party in such
jurisdiction, then the parties hereto shall negotiate an alternative provision
not conflicting with such laws so as to maintain, to the degree reasonably
possible, the business and economic benefits and liabilities of such agreement
as initially established. If such invalidity or
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illegibility is such that it is not possible to reasonably restore the business
and economic benefits and liabilities of the parties, then the party whose
interests are adversely affected shall have the right to terminate that portion
of this Agreement as is materially impacted by such invalidity or illegibility.
33. ARBITRATION. In the event of any dispute, controversy or claim
arising out of, in connection with, or in relation to this Agreement or breach
thereof, the parties shall attempt to resolve such matter by means of mediation
between and among the senior executives of PRESSTEK and XEROX. In the event such
mediation is unsuccessful after 60 days, then any such dispute, controversy or
claim arising out of, in connection with, or in relation to this Agreement or
breach thereof (except for claims for which equitable relief is sought or claims
related to infringement) shall be settled by arbitration in accordance with the
rules of the American Arbitration Association then in force. The parties agree
to (i) appoint an arbitrator who is knowledgeable in and familiar with the
printing and imaging industry, and instruct the arbitrator to follow substantive
rules of law; (ii) require the testimony to be transcribed; and (iii) require
the award to be accompanied by findings of fact and a statement of reasons for
the decision. The arbitrator shall have the authority to permit discovery, to
the extent deemed appropriate by the arbitrator, upon request of a party. The
arbitrator shall have no power or authority to add to or detract from the
written agreement of the parties. All costs and expenses, including attorneys'
and the arbitrator's fees, of all parties incurred in any dispute which is
determined and/or settled by arbitration pursuant to this section shall be borne
equally by the parties.. Except where clearly prevented by the area of dispute,
both parties agree to continue performing their respective obligations under
this Agreement while the dispute is being resolved. Any award shall be final,
binding and conclusive upon the parties and a judgment rendered thereon may be
entered in any court having jurisdiction thereof. This Section shall not limit
the right of any party to ▇▇▇ for injunctive relief, for a breach of the
confidential obligations under the Confidentiality Agreement, for indemnified
matter or a violation of the license rights granted herein. Arbitration shall be
held in New York, New York.
34. Export Control. PRESSTEK and XEROX shall comply in all material
respects 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 Product(s) 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.
35. Nonpublicity. Neither party shall (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, without the prior
written consent of the other party with respect to the content of any of the
foregoing, subject to applicable rules, policies, practices and procedures of
the Securities and Exchange Commission, National Association of Securities
Dealers, Inc., other authority or exchange applicable to either party, or advice
of counsel.
36. FORCE MAJEURE. Neither party shall be liable or deemed to be in
default for any delay or failure in performance under this Agreement or
interruption of services resulting directly or indirectly from acts of God,
allocation of parts and components due to civil or military authority, war,
riots, civil disturbances, accidents, fire, earthquakes, floods, strikes,
lock-outs, labor disturbances, foreign or governmental order, or any other cause
beyond the reasonable control of such party. The foregoing shall not apply to
any payment obligation of a party.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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37. TAXES.
a. Prices do not include Taxes.
b. For purposes of this section, "Taxes" shall mean any and
all taxes, duties, and similar charges imposed or collected by any governmental
entity worldwide or any political subdivision thereof and however designated or
levied and shall include any interest, penalties, or additions to tax (except as
may otherwise be specifically provided herein). "Taxes" as defined herein shall,
however, expressly exclude taxes imposed upon the net income of PRESSTEK (or
similar taxes imposed in lieu of such net income taxes, including income
withholding taxes that are required to be collected by XEROX on amounts due to
PRESSTEK).
c. If PRESSTEK is required to pay any sales, value added, use,
excise, import-related or other Taxes (whether federal, state, local, or
foreign) imposed with respect to the transactions contemplated by this Agreement
or any license granted hereunder, such Taxes shall be paid by XEROX (1) through
remittance to PRESSTEK which shall remit such Taxes to the appropriate taxing
authority, or (2) to the applicable taxing authority, the manner and timing of
such payment to depend on the context as appropriate. In lieu of such Tax
payment, and where applicable, XEROX may provide PRESSTEK with a Tax exemption
certificate and any other appropriate documentation acceptable to the
appropriate taxing authority as provided in subsection (f) below or as mutually
agreed between the parties.
d. Any invoice on which Taxes are added to the price by
PRESSTEK shall separately state any and all such Taxes. Such original invoice
shall be supported by appropriate detail and summary billing information
provided to XEROX in a timely manner, and both the invoice and the supporting
documentation shall be in the form required by the appropriate governmental
agency or as otherwise mutually agreed.
e. PRESSTEK shall indemnify XEROX for: (i) Taxes paid by XEROX
to PRESSTEK imposed as a result of PRESSTEK's failure to remit such Taxes paid
by XEROX to PRESSTEK to the appropriate taxing jurisdiction in a timely fashion
after their receipt; (ii) any Taxes in excess of the amount of Tax which would
have been charged if the original invoice had been correct (less the interest
benefit realized by XEROX due to the time value of money relating to the delay
in payment of such Tax) relating solely to PRESSTEK's failure attributable to
its actions or inaction (except as commercially reasonable) to invoice XEROX for
the correct amount of Taxes at the time of the original invoice; and (iii) any
Tax arising from PRESSTEK'S purchase of Products that are acquired by PRESSTEK
to be resold to XEROX under this Agreement.
f. PRESSTEK and XEROX agree to cooperate to minimize and
properly calculate any applicable Taxes for which either party is responsible
under this Agreement, and, in connection therewith, XEROX shall provide PRESSTEK
any resale certificates, information regarding out-of-state use of materials,
services or sales or other exemption or tax reduction certificates or other
certificate or document of exemption or information that may be required in
order to exempt XEROX'S payment for goods and/or services from any such Taxes,
and PRESSTEK shall cooperate to the extent commercially reasonable in accepting
and supporting any claims (which XEROX in good ▇▇▇▇▇ ▇▇▇▇▇ to be valid) of
resale, direct pay, identifiable segment, bulk sale, occasional sale, casual
sale or other exemption. If XEROX provides certification of an exemption from
any Tax or of a reduced rate of Tax imposed by an applicable taxing authority,
under such taxing authority's rules, then PRESSTEK shall not (unless otherwise
required by law) invoice for or pay over any such Tax unless and until the
applicable taxing authority assesses such Tax, at which time PRESSTEK shall
invoice and XEROX shall pay any such Tax that XEROX erroneously claimed
exemption of or a reduced rate.
----------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-25-
g. Subject to the provisions in the last sentence of
subsection (j) hereof, XEROX shall be entitled to, and PRESSTEK shall promptly
repay to XEROX if received by PRESSTEK, any refunds, rebates or credits of Taxes
paid by XEROX pursuant to this Agreement, together with interest thereon as paid
by the applicable taxing authority.
h. If PRESSTEK receives any assessment or other notice
(collectively "Assessment") from any taxing authority providing that Taxes are
due from PRESSTEK which are subject to payment by or indemnification from XEROX
pursuant to this Agreement, PRESSTEK shall, within thirty (30) days of receipt
of the Assessment, give XEROX written notice of the Assessment and XEROX shall
pay to PRESSTEK or directly to the taxing authority the amount of Taxes set
forth as due in the Assessment within thirty (30) days of receipt of such notice
or such shorter period as is reasonable to protect the right of protest or
appeal or other material rights; exclusive, however, of any amounts for which
PRESSTEK has indemnified XEROX in accordance with this Agreement.
Notwithstanding the above, if XEROX, in its sole discretion, determines that it
will contest an Assessment of indemnifiable Taxes rather than make a payment to
PRESSTEK or the applicable governmental taxing authority, then XEROX shall
control any such contest and PRESSTEK shall, to the extent commercially
reasonable under the circumstances, cooperate with XEROX in such contest and
provide such support, information, documents and other items that may be
reasonably beneficial to XEROX in its contest of any such Assessment. In any
case where XEROX determines to contest an Assessment, XEROX will fully indemnify
PRESSTEK for Taxes and other reasonable defense costs related thereto incurred
by PRESSTEK as a result of the contest. If any such contest or resolution
thereof could reasonably be expected to have a material effect on PRESSTEK,
PRESSTEK shall have reasonable rights to participate in such contest or
resolution and to approve any settlement or other resolution, which approval
shall not be unreasonably withheld. If PRESSTEK determines that it would prefer
that XEROX not contest an Assessment, PRESSTEK may notify XEROX at any time not
to pursue such contest, provided that PRESSTEK fully satisfies any such
Assessment. In such a case, XEROX will have no obligation to indemnify PRESSTEK
for any amounts paid or payable by PRESSTEK with respect to such Assessment.
i. In accordance with the definition of Taxes set out in
subsection (b) hereof, to the extent royalties are payable to PRESSTEK and any
amounts paid to PRESSTEK (or to XEROX on PRESSTEK's behalf) in respect of such
royalties are subject to income withholding taxes, such withholding taxes shall
be considered to be based upon PRESSTEK's net income. Accordingly, payments to
PRESSTEK in respect of such royalties shall be made net of such withholding
taxes, and XEROX shall have no obligation to indemnify PRESSTEK for any such
withholding taxes. XEROX shall promptly furnish to PRESSTEK receipts evidencing
the payment of any such withholding taxes. If PRESSTEK provides certification of
an exemption from any tax or of a reduced rate of tax imposed by an applicable
taxing authority, under the rules of such taxing authority, then XEROX shall not
(unless otherwise required by law) invoice for or pay over any such tax unless
and until the applicable taxing authority assesses such tax, at which time XEROX
shall invoice and PRESSTEK shall pay any such tax (plus any applicable interest,
penalties, or additions to tax) that PRESSTEK erroneously claimed exemption of
or a reduced rate.
j. XEROX shall indemnify PRESSTEK for any Taxes for which
XEROX bears responsibility under this Agreement, to the extent if any, that the
sum of payments and or reimbursements for Taxes made by XEROX either to PRESSTEK
or directly to taxing authorities does not fully equal the amount of Taxes that
PRESSTEK is required to pay as provided in this section 37. To the extent that
any Taxes payable by PRESSTEK that have been or would be subject to payment,
reimbursement, or indemnification by or from XEROX under this Agreement are
eligible for a tax credit or rebate to PRESSTEK, PRESSTEK will either pay over
such credit or rebate to XEROX (if XEROX has already
----------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-26-
paid such amount to PRESSTEK) or will not pursue reimbursement or
indemnification from XEROX, as the case may be, provided that claiming such
rebate or credit and passing the benefit thereof to XEROX will not have any
material adverse tax or other effect (relative to the amount of the credit or
rebate) upon PRESSTEK and that XEROX pays the reasonable expenses to obtain such
credit or refund.
38. COUNTERPARTS. This Agreement may be signed in counterparts and each
counterpart shall be considered an original document.
39. EXHIBITS. The following Exhibits are attached and incorporated by
reference in this Agreement:
EXHIBIT A: Confidential Disclosure Agreement dated July 22, 1998
EXHIBIT B: Specifications for [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press
EXHIBIT C: Specifications for [CONFIDENTIAL TREATMENT
REQUESTED]/*/ Press
EXHIBIT D: Specifications for Consumables
EXHIBIT E: Consumables Packaging Specifications
EXHIBIT F: Manufacturer Logo Specification
EXHIBIT G: Product Pricing
EXHIBIT H: Quality Assurance Procedure and Acceptance Inspection
Criteria
EXHIBIT I: Escrow Agreement ,SD
EXHIBITS J1-J4: Installation, Service Support and Training Terms
----------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-27-
IN WITNESS WHEREOF, the parties hereto have caused this Master Supply
and Distribution Agreement to be executed, in duplicate, by their duly
authorized officers or representatives.
PRESSTEK, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: President and CEO
--------------------------
Date: September 21, 2000
---------------------------
XEROX CORPORATION
By: /s/ ▇. ▇▇▇▇
----------------------------
Title: Sr. VP Color Bus. Unit
--------------------------
Date: September 21, 2000
---------------------------
--------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-28-
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT A
---------
TWO WAY CONFIDENTIAL
DISCLOSURE AGREEMENT
XEROX CORPORATION ("Xerox") of Stamford, Connecticut, and Presstek
("Contractor") as parties hereto hereby agree as follows:
1. To further the business relationship between the parties, it is
necessary and desirable that the parties hereto disclose to each other
confidential information (hereinafter referred to as "information") consisting
of technical or business information related to digital color printing,
including any or all of the following related thereto: current, future, or
proposed products of Disclosing Party; business forecasts and procurement
requirements of Disclosing Party; plans or technology of Disclosing Party.
2. Receiving Party shall not communicate Disclosing Party's Information
to any third party and shall use its best efforts to prevent inadvertent
disclosure of Disclosing Party's Information to any third party.
3. Receiving Party shall neither use Disclosing Party's Information nor
circulate it within its own organization except to the extent necessary for
(a) negotiations, discussions and consultations with personal or
authorized representatives of Disclosing Party;
(b) supplying Disclosing Party with goods or services at its order;
(c) preparing bids, estimates and proposals for submission to
Disclosing Party; and
(d) any purpose Disclosing Party may hereafter authorize in writing.
4. The obligations of Paragraphs 2 and 3 hereof shall terminate with
respect to any particular portion of the Disclosing Party's Information (i) when
the Receiving Party can document that
(a) It was in the public domain at the time of Disclosing Party's
communication thereof to Receiving Party,
(b) it entered the public domain through no fault of Receiving Party
subsequent to the time of Disclosing Party's communication thereof
to Receiving Party,
(c) it was in Receiving Party's possession free of any obligation of
confidence at the time of Disclosing Party's communication thereof
to Receiving Party,
(d) it was rightfully communicated to Receiving Party free of any
obligation of confidence subsequent to the time of Disclosing
Party's communication thereof to Receiving Party, or
(e) it was developed by employees or agents of Receiving Party
independently of and without reference to any Disclosing Party
Information or other information that Disclosing Party has disclosed
in confidence to any third party or
(ii) when it is communicated by Disclosing Party to a third party free of any
obligation of confidence; or (iii) in any event, [CONFIDENTIAL TREATMENT
REQUESTED]/*/ years after Xerox' communication thereof to Contractor and
[CONFIDENTIAL TREATMENT REQUESTED]/*/ years after Contractor's communication
thereto to Xerox.
5. All materials including, without limitation, documents, drawings,
models, apparatus, sketches, designs, and lists furnished to Receiving Party by
Disclosing Party and which are designated in writing to be the property of
Disclosing Party shall remain the property of Disclosing Party and shall be
returned to Disclosing Party promptly at its request with all copies made
thereof.
6. Communications from Disclosing Party to personnel and authorized
representatives of Receiving Party shall not be in violation of the proprietary
rights of any third party.
7. This Agreement shall govern all communications between Disclosing
Party and Receiving Party that are made by the parties hereto during the period
from July 22, 1998 to the date on which either party receives from the other
written notice that subsequent communications shall not be so governed.
8. Receiving Party shall not export, directly or indirectly, any
technical data acquired from Disclosing Party under this Agreement or any
products utilizing any such data to any country for which the U.S. Government or
any agency thereof at the time of export requires an export license or other
Government approval without first obtaining such license or approval.
9. This Agreement shall be construed in accordance with the laws of New
York State.
-------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Xerox Corporation Contractor
By ▇▇▇ ▇▇▇▇▇▇▇ By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- -----------------------
Title V.P. and G.M. Title President and COO
Production color --------------------
-------------------- Date 7-21-98
Date 7-21-98 ---------------------
---------------------
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT B
---------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ DI DIGITAL PRINTING PRESS
SPECIFICATIONS
---------------------------------------- -----------------------------------
PRODUCT NAME [CONFIDENTIAL TREATMENT REQUESTED]/*/
DI
---------------------------------------- -----------------------------------
Color configurations 4 or 5 color
---------------------------------------- -----------------------------------
Largest sheet size 381 x 520 15 x 20.5
---------------------------------------- -----------------------------------
Smallest sheet size 110 x 148 straight
230 x 148 perfecting
---------------------------------------- -----------------------------------
Maximum image area 370 x 505
---------------------------------------- -----------------------------------
Method of laying down image Landscape
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Stock Thickness .04 - .4 mm
30-350 g/m
---------------------------------------- -----------------------------------
Printing method Waterless
---------------------------------------- -----------------------------------
Plate vendor/name PEARLdry Plus
---------------------------------------- -----------------------------------
Plate material Polyester [CONFIDENTIAL
TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Plate maximum size 520 mm wide roll (520 x 400)
---------------------------------------- -----------------------------------
Plate thickness .18 mm, .007 mil.
---------------------------------------- -----------------------------------
Run length of plate material 20,000
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED]/*/ REQUESTED]/*/
---------------------------------------- -----------------------------------
Speed (impressions per hour) 12,000 iph
---------------------------------------- -----------------------------------
Printing images A4 24,000 pages
(8.5 x 11) per hour
---------------------------------------- -----------------------------------
Plate loading Auto cylinder
---------------------------------------- -----------------------------------
Plate loading time 20 seconds for all colors
+ Ironing TBD
---------------------------------------- -----------------------------------
Cleaning of image plate Auto/1 min.
---------------------------------------- -----------------------------------
Plate cleaning materials Cloth roll, 5.2 yds./4.75m 20"
wide
---------------------------------------- -----------------------------------
Dampening Not Required
---------------------------------------- -----------------------------------
Ink type Waterless
---------------------------------------- -----------------------------------
Number of ink form rollers to plate 4 form rollers
---------------------------------------- -----------------------------------
Number of rollers in ink train 16
---------------------------------------- -----------------------------------
Refrigerated oscillator rollers Yes
---------------------------------------- -----------------------------------
Imaging speed 4/c, 2-page, 60 Hz
2.2 minutes @ 1270 dpi
4.5 minutes @ 2540 dpi
---------------------------------------- -----------------------------------
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 2
---------------------------------------- -----------------------------------
PRODUCT NAME [CONFIDENTIAL TREATMENT REQUESTED]/*/
DI
---------------------------------------- -----------------------------------
Feeder pile height 940 mm
---------------------------------------- -----------------------------------
Delivery pile height 880 mm high
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Blanket cleaning Auto
---------------------------------------- -----------------------------------
Delivery dryer IR Standard
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Perfecting/Duplexing Optional
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Running register control Yes, from console
(cylinder movement )
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Number of transfer impression
cylinders 4 (five color)
---------------------------------------- -----------------------------------
Number of printing units 4, or 5
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Number of laser diodes/unit ProFire lasers-32 channels per head
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Available resolutions 1270 dpi,
2540 dpi
---------------------------------------- -----------------------------------
Press dimensions 4/c 4.35 x 1.34 x 1.76 m
5/c 6.40 x 1.34 x 1.76
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
Press weight 4/8600 Kg (all components-high)
5/c 9000 Kg (all components-high)
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
---------------------------------------- -----------------------------------
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 3
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT C
---------
DOCUCOLOR 233-DI
------------------------------------------ -------------------------------------
PRODUCT NAME DOCUCOLOR 233-DI-4
------------------------------------------ -------------------------------------
Color Configuration 4-color
------------------------------------------ -------------------------------------
Largest sheet size 340 x 460 mm (13.39 x 8.11 inches)
------------------------------------------ -------------------------------------
Smallest sheet size 90 x 100 mm (3.54 x 3.94 inches)
------------------------------------------ -------------------------------------
Maximum printing area 330 x 450 mm (12.99 x 17.72 inches)
------------------------------------------ -------------------------------------
Method of laying down image Portrait
------------------------------------------ -------------------------------------
Gripper margin 9mm (.0354 inches)
------------------------------------------ -------------------------------------
Stock thickness 0.06 - 0.30 mm (0.0024-0.012 inches)
------------------------------------------ -------------------------------------
Printing method Four color dry offset
------------------------------------------ -------------------------------------
Plate material PEARLdry plus
------------------------------------------ -------------------------------------
Plate material Polyester (roll)
------------------------------------------ -------------------------------------
Plates per roll 28
------------------------------------------ -------------------------------------
Plate thickness 0.18 mm (.007 inches)
------------------------------------------ -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------------------------------ -------------------------------------
Max speed (impressions per hour) 7,000 iph
------------------------------------------ -------------------------------------
Printing images (8.5 x 11) per hour 14,000 images
------------------------------------------ -------------------------------------
Plate loading (indexing) Automatic
------------------------------------------ -------------------------------------
Cleaning of imaged plate Automatic, about 2 minutes
cycle time
------------------------------------------ -------------------------------------
Number of ink form rollers to plate 4
------------------------------------------ -------------------------------------
Number of rollers in ink train 15 per color
------------------------------------------ -------------------------------------
Refrigerated oscillator rollers Yes
------------------------------------------ -------------------------------------
Imaging speed 4/c, 2-page, about 5 minutes @
2540 dpi
------------------------------------------ -------------------------------------
Dampening Not required
------------------------------------------ -------------------------------------
Feeder pile height 400 mm (15.75 inches)
------------------------------------------ -------------------------------------
Delivery pile height 400 mm (15.75 inches)
------------------------------------------ -------------------------------------
Blanket cleaning Auto
------------------------------------------ -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------------------------------ -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------------------------------ -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------------------------------ -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------------------------------ -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------------------------------ -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------------------------------ -------------------------------------
Number of transfer impression cylinders 1
------------------------------------------ -------------------------------------
Number of printing units 2 with 2 images each
------------------------------------------ -------------------------------------
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 4
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
Operation stand 720 x 1118L x 940 mmH excluding
monitor 28.3 x 44.0 x 37.0 inches
----------------------------------------- -------------------------------------
Maximum height with top covers optional 1.91m (6.27 feet)
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
Available resolutions 1270 dpi
2540 dpi
----------------------------------------- -------------------------------------
Press dimensions (with out operation 1.11 x 3.23 x 1.67m 3.64 x 10.60 x
stand) 5.48ft.
----------------------------------------- -------------------------------------
Press weight 4500kg (9950 lbs.)
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ [CONFIDENTIAL TREATMENT REQUESTED]/*/
----------------------------------------- -------------------------------------
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 5
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT D
---------
- CONSUMABLE SPECIFICATIONS -
-----------------------------
PRODUCT NAME: Presstek PEARLdry PLUS thermal laser media - spooled product.
PRODUCT DESCRIPTION: Metalized polyester film with silicone coating.
PRODUCT APPLICATION: Plate material for Presstek DI enabled printing presses.
The material is spooled on steel cores that engage unwind and take-up mechanisms
integral to the press plate cylinder. The design allows a specific amount of
material to be advanced into imaging and printing position. A thermal laser
imaging system creates a latent image on the surface of the plate. A subsequent
cleaning step removes silicone in the imaged areas, creating an ink-receptive
printing master. Up to [CONFIDENTIAL TREATMENT REQUESTED]/*/ copies can be
produced from the printing master.
* Actual run length performance may vary.
PRODUCT SPECIFICATION:
[CONFIDENTIAL TREATMENT REQUESTED]/*/ DI spool width [CONFIDENTIAL TREATMENT
REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ DI spool length [CONFIDENTIAL TREATMENT
REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ DI images / spool [CONFIDENTIAL TREATMENT
REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ DI spool width [CONFIDENTIAL TREATMENT
REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ DI spool length [CONFIDENTIAL TREATMENT
REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ DI images / spool [CONFIDENTIAL TREATMENT
REQUESTED]/*/
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 6
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT G
---------
Product Pricing
DOCUCOLOR 400 DI ([CONFIDENTIAL TREATMENT REQUESTED]/*/)
---------------------- ------------------------------ ------------------------
Part Number Press Configuration Xerox OEM Price
---------------------- ------------------------------ ------------------------
---------------------- ------------------------------ ------------------------
4-Color $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
---------------------- ------------------------------ ------------------------
---------------------- ------------------------------ ------------------------
4-Color w/ Perfector $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
---------------------- ------------------------------ ------------------------
---------------------- ------------------------------ ------------------------
5-Color $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
---------------------- ------------------------------ ------------------------
---------------------- ------------------------------ ------------------------
5-Color w/Perfector $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
---------------------- ------------------------------ ------------------------
DOCUCOLOR 233 DI ([CONFIDENTIAL TREATMENT REQUESTED]/*/)
---------------------- ------------------------------ ------------------------
Part Number Press Configuration Xerox OEM Price
---------------------- ------------------------------ ------------------------
---------------------- ------------------------------ ------------------------
4-Color $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
---------------------- ------------------------------ ------------------------
MEDIA
-------------- --------------------------------------- ------------------------
Part Number Description Xerox OEM Price
-------------- --------------------------------------- ------------------------
-------------- --------------------------------------- ------------------------
[CONFIDENTIAL PEARLdry for Docucolor 400 DI Presses $[CONFIDENTIAL
TREATMENT (4 rolls per box, 36 images per roll) TREATMENT REQUESTED]/*/
REQUESTED]/*/
-------------- --------------------------------------- ------------------------
-------------- --------------------------------------- ------------------------
[CONFIDENTIAL PEARLdry for Docucolor 233 DI Presses $[CONFIDENTIAL
TREATMENT (4 rolls per box, 28 images per roll) TREATMENT REQUESTED]/*/
REQUESTED]/*/
-------------- --------------------------------------- ------------------------
-------------- --------------------------------------- ------------------------
PEARLdry [CONFIDENTIAL TREATMENT $[CONFIDENTIAL
REQUESTED]/*/ DI Cleaning Towels TREATMENT REQUESTED]/*/
(8 rolls per box)
-------------- --------------------------------------- ------------------------
-------------- --------------------------------------- ------------------------
PEARLdry [CONFIDENTIAL TREATMENT $[CONFIDENTIAL
REQUESTED]/*/ DI Cleaning Towels TREATMENT REQUESTED]/*/
(8 rolls per box)
-------------- --------------------------------------- ------------------------
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 7
OTHER
-------------- --------------------------------------- ------------------------
Part Number Description Xerox OEM Price
-------------- --------------------------------------- ------------------------
-------------- --------------------------------------- ------------------------
PEARLserver $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
-------------- --------------------------------------- ------------------------
-------------- --------------------------------------- ------------------------
PEARLrip(Harlequin) $[CONFIDENTIAL
TREATMENT REQUESTED]/*/
-------------- --------------------------------------- ------------------------
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 8
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT H
---------
FINAL TEST ACCEPTANCE CRITERIA
1. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
2. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
3. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
4. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
5. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
6. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
7. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
8. [CONFIDENTIAL TREATMENT REQUESTED]/*/.
9. These criteria are subject to change by mutual written agreement
between Xerox and Presstek.
QUALITY ASSURANCE PROCEDURES
To be determined in a written amendment to the Agreement executed by the parties
as soon as practicable following execution thereof.
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 9
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT I
---------
SOURCE CODE ESCROW AGREEMENT
This SOURCE CODE ESCROW AGREEMENT is entered into by and among DATA
SECURITIES INTERNATIONAL, INC. with offices
_____________________________________________________ ("DSI" or "HOLDER");
PRESSTEK, INC., a Delaware corporation ("LICENSOR"), with offices at ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and Xerox Corporation, located
at ___________________________________________________________ (the "LICENSEE"
or "Licensee").
RECITALS
A. Licensor and Licensee have entered or will enter into certain Master Supply
and Distribution Agreement involving the production of Presses certain
proprietary software or firmware technology of Licensor (referred to in this
Agreement as the "MASTER AGREEMENT").
B. Licensor desires to avoid unauthorized use or disclosure of its proprietary
technology except under certain limited circumstances as defined herein.
C. The availability of the proprietary technology of Licensor is critical
to Licensee in the conduct of its business and, therefore, Licensee needs access
to the source code materials and other proprietary technology of Licensor under
certain limited circumstances if Licensor shall fail to maintain and support the
software described in the Master Agreement, or should Licensor experience
financial difficulties by becoming subject to bankruptcy or insolvency
proceedings, as defined herein.
D. Licensor and Licensee desire to establish an escrow with DSI to provide
for the retention, administration and controlled access of certain proprietary
technology materials of Licensor.
E. The parties desire this Agreement to be supplementary to the Master
Agreement pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code, Section 365(n). This
Agreement is entered into in furtherance of the provisions and objectives of
that certain Master Agreement.
For valuable consideration acknowledged by each, the parties agree that:
1. DEPOSIT. Licensor shall deposit with Holder those source code materials
specified in EXHIBIT A (the "DEPOSIT"). Licensor shall keep the Deposit at
the current revision level on an annual basis commencing with the
effective date of this Agreement. In addition, Licensor shall update the
Deposit at any time during the term or any renewal term of this Agreement
that Licensor issues a new, material version or release of the Deposit.
Licensor also agrees to comply with Holder's reasonable requests for the
deposit or replacement of Deposit materials likely to physically degrade.
2. RETENTION OF REPLACED DEPOSIT. Holder will also retain all existing and
supplanted Deposit materials for the benefit of Licensee and Licensor.
3. VERIFICATION AND DELIVERY. The Deposit shall be packaged for storage as
reasonably instructed by Holder and accompanied by a cover sheet
identifying the contents as indicated in EXHIBIT A. Risk of loss or damage
to the Deposit materials during shipment shall lie with the Licensor.
Licensee
Page 10
shall have the right to verify, at its own expense, each Deposit before
shipment at Licensor's premises.
Licensor hereby grants Licensee and Holder, free of charge, at its own
expense, the right to use the facilities of Licensor, including its
computer systems, to as reasonably necessary to verify the Deposit. Such
right shall be exercised by 30 days' prior written notice from Licensee to
Licensor and inspection will occur during Licensor's normal business hours
without undue disruption of Licensor's business. At the expense of
Licensor, Licensor shall make available Licensor's technical support
personnel as reasonably necessary to verify the Deposit.
4. STORAGE OF DEPOSIT. Holder shall safekeep the Deposit in a security vault
and exercise the same high standard of care to protect the Deposit which
Holder would use to protect items of this nature which Holder might own,
but in no event less than that standard of care customary in the industry.
5. USE AND NONDISCLOSURE. Except as expressly provided in this Agreement,
Holder shall not disclose or make any use whatsoever of the Deposit, nor
shall Holder disclose or make use of any confidential information provided
to Holder by Licensor or Licensee in connection with this Agreement
without the prior written consent of Licensor or Licensee, respectively.
These obligations shall continue indefinitely notwithstanding any
termination of this Agreement for any reason.
6. RECORDS AND AUDIT RIGHTS. Holder shall keep complete written records of
the activities undertaken and materials prepared pursuant to this
Agreement. Upon 10 days prior written notice to Holder during the term of
this Agreement, Licensor and Licensee shall be entitled to inspect and
request the records of Holder with respect to this Agreement at reasonable
times during normal business hours at Holder's facilities and to inspect
the Deposit required then to be held by Holder.
7. RELEASE OF DEPOSIT. If Licensee notifies Holder of the occurrence of a
release condition as defined in EXHIBIT B, Holder shall immediately notify
Licensor and provide Licensor with a copy of the notice from Licensee.
Licensor shall have ten (10) business days from the date Holder sends its
notice to notify Holder and Licensee that the release condition has not
occurred or has been cured. Failing such timely notice, Holder shall
release a copy of the Deposit to Licensee. However, if Holder receives
timely notice from Licensor, Holder shall not release a copy of the
Deposit but shall instead institute the Dispute Resolution Process below
within three (3) business days of such timely notice from Licensor.
8. DISPUTE RESOLUTION PROCESS. Holder shall first notify Licensor and
Licensee in writing of contrary instructions from Licensee and Licensor
for release of the Deposit. Within five (5) business days after the date
the notice is sent by Holder, an independent referee shall be appointed by
the mutual agreement of Licensor and Licensee.
On the 20th business day after the dispute notice from Holder, the referee
shall meet at the San Diego, California offices of Holder, or such other
location as is mutually agreed upon by Licensor and Licensee, and shall
hear testimony and other evidence that Licensor and Licensee may wish to
present with respect to the dispute. The meetings shall be conducted from
8:30 am. to 5:30 p.m. on no more than three (3) consecutive business days,
national holidays excluded. Licensee shall present up to one day of
evidence followed by up to one day of presentation from Licensor, followed
by a final day reserved for rebuttal by each party in the morning and
afternoon, respectively. Licensor, Licensee and Holder agree that the
evidence and results of the hearings shall not be disclosed to third
parties.
Page 11
Within two business days after the close of the presentations, the referee
shall resolve the dispute by a written decision.
This dispute resolution process shall be the exclusive means for resolving
disputes regarding a release of the Deposit, and the decision of the
referees shall be final, conclusive, and enforceable by a court of
competent jurisdiction. All costs of the referee shall be split between
Licensor and Licensee.
Insofar as possible, the referee shall be, at the time of selection, a
partner or manager of a national or regional accounting or software
consulting firm (including the information processing, management support,
and affiliates thereof) not employed by or affiliated with the Licensor or
Licensee, and such referee shall be required to have relevant experience
in the field of computer software technology and licensing. The sole
issues for arbitration shall be whether there exists any material failure
of Licensor to provide any support for the Software which it is obligated
to provide under the Master Agreement and whether there has occurred a
"Release Condition" under EXHIBIT B.
9. JOINT RELEASE. Licensee and Licensor may, by joint written instruction to
Holder, authorize the release of the Deposit or a copy of it to the party
named in the instruction.
10. RIGHTS IN DEPOSIT. Licensee's rights in the Deposit are stated in EXHIBIT
C. This Agreement shall automatically terminate upon the termination of
the Master Agreement, and notice shall be provided by Licensor and
Licensee to Holder regarding such termination.
11. TERM AND TERMINATION. The account will renew each year on the anniversary
date upon receipt by Holder of the renewal fees.
If Holder does not receive the renewal fee from Licensee by the
anniversary date of this Agreement, Holder shall give notice to Licensor
and Licensee. If the fee is not received from Licensee within thirty days
of such notice, this Agreement shall automatically expire. Upon expiration
of this Agreement, Holder will return the Deposit to Licensor. All
obligations of Holder under this Agreement shall terminate thereafter,
except as provided in this Agreement.
12. FEES. All fees of Holder shall be due from Licensee in full upon receipt
of Holder's invoice. Fees shall be those specified in Holder's schedule of
fees in effect for the initial term of this Agreement plus taxes (unless
Licensee provides evidence of tax-exempt status), which schedule of fees
is attached as EXHIBIT ▇. ▇▇▇▇▇▇ shall not increase fees during the term
of this Agreement.
13. ACCOUNT REPRESENTATIVE. Licensor, Licensee, and Holder shall each
designate an authorized individual to receive notices and otherwise act on
behalf of Licensor, Licensee and Holder in connection with this Agreement.
Representatives may be changed by prior written notice to the other
parties.
14. NOTICES. All notices for a release or a dispute in connection with this
Agreement shall be in writing addressed to the Account Representatives,
shall be sent by overnight courier service or electronic facsimile
transmission (with a confirmation copy to follow by first class mail,
postage prepaid) and shall be effective at the end of the next business
day following delivery.
15. AUTHENTICITY. Holder may act in reliance upon any instruction, instrument,
or signature believed to be genuine and may assume that it has been duly
authorized.
Page 12
16. HOLD HARMLESS. Licensor and Licensee will hold Holder harmless against any
action regarding the release or refusal to release a copy of the Deposit
by Holder so long as Holder has acted in good faith and in accordance with
this Agreement. Licensee and Licensor agree to defend and indemnify Holder
and hold Holder harmless from and against any and all claims, actions and
suits, whether in contract or in tort, and from and against any and all
liabilities, losses, damages, costs, charges, penalties, counsel fees, and
other expenses of any nature (including, without limitation, settlement
costs) incurred by Holder as a result of performance of the Agreement,
except in the event of a judgment which specifies that Holder acted in bad
faith or with gross negligence or willful misconduct.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
conflict of laws principles.
18. PRIOR AGREEMENTS. The Master Agreement with each Licensee and this
Agreement, including the Exhibits to both Agreements, constitute the
entire agreement between the parties concerning the subject matter of this
Agreement and the Deposit, and shall supersede all previous
communications, representations, understandings, and agreements, oral or
written, between and among the parties. Licensor and Licensee acknowledge
that Holder has no knowledge of the terms and conditions contained in the
Master Agreement and that Holder's only obligations shall be as set forth
herein or in any other writing signed by Holder, Licensor and Licensee.
19. SEVERABILITY. If any provision of this Agreement is held by any court to
be invalid or unenforceable, then that provision will be severed from this
Agreement and the remaining provisions shall continue in force.
20. ASSIGNMENT. No party may assign any rights or delegate any obligations
under this Agreement without the prior written consent of the others, and
any attempt to do so shall be deemed void, except as provided in the
Master Agreement. Any party may assign this Agreement to a successor to
all or substantially all the capital stock or assets of a party, whether
by sale, merger, tender offer or other form of acquisition.
21. WAIVER. Waivers of any right under this Agreement shall only be effective
if in writing signed by the party possessing the right.
22. EXHIBITS. The following Exhibits are made a part of this Agreement by this
reference:
Exhibit A: Deposit Materials
Exhibit B: Release Conditions
Exhibit C: Rights in Deposit
Exhibit D: Schedule of Fees
Exhibit E: Acceptance Form
Page 13
IN WITNESS WHEREOF, the parties have executed this Master Source Code
Escrow Agreement by their duly authorized officers as of the date set forth
above.
DATA SECURITIES
INTERNATIONAL, INC. XEROX CORPORATION (LICENSEE)
By: ____________________________ By: ___________________________
Title: _________________________ Title: ________________________
PRESSTEK, INC. (LICENSOR)
By: _____________________________
Title: __________________________
Page 14
EXHIBIT A
DEPOSIT MATERIALS
-----------------
A. SOURCE CODE DEPOSIT MATERIALS
-----------------------------
1. A copy of source code and all source code documentation, listings,
and programmers' notes relating to the design, use, operation, and
maintenance of all:
a. Licensor's proprietary Software as described in the Master
Agreement;
b. Modifications, enhancements, new versions or releases,
additions, code corrections, and workarounds of the Software
included in the Master Agreement;
c. Any of the above materials replaced by Licensor and retained by
Holder according to the terms of this Agreement; and
d. source code listings, program specifications, schematics,
system documentation, development tools and methodologies,
algorithms, flowcharts, modifications, enhancements, programmer
commentary, and all necessary data and technical information
relating to the Software which will enable a reasonably skilled
programmer to create, enhance, maintain, support and modify the
Software which is the subject of the Master Agreement, to the
extent available.
2. A description of the development system, hardware, software,
compilers, and the like sufficient for Licensee to continue
development and support of the Software included in the Master
Agreement.
3. The Deposit materials shall be in machine-readable form on
magnetic tape or diskette.
4. The source code shall be updated on an annual basis.
B. COVER SHEET FOR DELIVERY OF DEPOSIT
-----------------------------------
Deposit Account Name _____________________
Deposit Account Number ___________________
__ Deposit ____ Supplement to Deposit __ Replacement of Deposit
Software Name __________________________ Version ______________
Date _______________ CPU/OS ________________ Compiler _________
Application ___________________________________________________
Utilities needed ______________________________________________
Special Operating Instructions ________________________________
Media ___________________________ Quantity ____________________
Hardware Description __________________________________________
Page 15
EXHIBIT B
RELEASE CONDITIONS
------------------
The Deposit shall be released to Licensee upon the occurrence of any of the
following events:
1. Failure of Licensor following Licensee's giving notice to Licensor, to
fulfill its Software support obligations as required within the time
periods permitted in the Master Agreement (the "Software Obligations").
2. Failure of Licensor to continue to do business and such failure continues
for a period of 90 days.
3. Unless prohibited by law, the filing of a petition by or against Licensor
for relief under the United States Bankruptcy Code; a general assignment
for the benefit of creditors by Licensor; the appointment of a general
receiver or trustee in bankruptcy for Licensor's business or property; or
action by Licensor under any state insolvency or similar law for the
purpose of its bankruptcy, or liquidation.
4. Any rejection or termination of the Software Obligations by Licensor or
its successors or representatives in breach of the provisions of the
Software Obligations contained in the Master Agreement, including in all
events any rejection or termination of the Software Obligations or any
proposal to do so under Title 11 of the United State Code, as now
constituted or hereafter amended (the "Bankruptcy Code"), or any other
federal or state bankruptcy, insolvency, receivership, or similar law.
5. Failure of a trustee, including Licensor as debtor in possession, in any
bankruptcy case hereafter filed by or against Licensor either to assume
the Software support obligations contained in the Master Agreement and
this Master Source Code Escrow Agreement within forty-five (45) days after
the filing of the initial bankruptcy petition or to perform such
obligations and this Escrow Agreement within the meaning of Section
365(a)(4)(i) of the Bankruptcy Code.
The rights in the Software, including associated intellectual property
rights, that Licensee may elect to retain following a rejection of the Master
Agreement or this Agreement under Section 365(n) of the Bankruptcy Code do not
include the right of Licensee to discontinue any royalty or other payment
obligation for use of Licensor's Software. Under no circumstances shall Licensee
be entitled to use of the Software under this Escrow Agreement without also
paying to Licensor (or its successors) any then-accrued or ongoing royalty,
distribution fee, other license fee payment obligation arising under the Master
Agreement, as well as payment for Presses under the Master Agreement. This
Agreement shall be automatically terminated at Licensor's option if Licensee
fails to make any such payment obligation following notice thereof from Licensor
or is otherwise in default of its obligations under the Master Agreement.
Page 16
EXHIBIT C
LICENSEE'S RIGHTS AND OBLIGATIONS IN
------------------------------------
ESCROW MATERIALS
----------------
1. ▇. ▇▇▇▇▇ OF CURRENT LICENSE TO SOURCE CODE. Licensor hereby presently
grants to Licensee a limited license in the intellectual property content of the
Deposit, exercisable upon release of the Deposit by Holder to Licensee under the
Release Conditions. Licensee's license is limited, non-exclusive, and
fully-paid-up. Licensee's license to the Deposit materials hereunder is limited
in duration to the term of the Master Agreement. Licensee's license to the
Deposit is restricted solely to the furtherance of Licensee's rights or
fulfillment of Licensor's support obligations for the Licensor software as set
forth in the Master Agreement. The license includes the right to use, display
and perform any Deposit user documentation or Software (in machine-readable form
only). No right is provided to Licensee to copy (except for archive purposes),
manufacture, reproduce or distribute or transfer to others copies of the
Software or documentation, except as contemplated by the Master Agreement or
this Agreement. Use of the Source Code by Licensee shall be limited to the uses
of the System permitted under the Master Agreement and shall be limited to use
within the Territory as provided in the Master Agreement.
b. PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN SOFTWARE. Licensee shall
treat the Deposit and Related Materials as confidential information. Licensee
shall maintain all confidential information in strict confidence. Licensee shall
take all commercially reasonable steps to ensure that no unauthorized person or
entity has access to such confidential information of Licensor (including the
Deposit material) and that all authorized persons having access to confidential
information of Licensor (including the Deposit material) refrain from any
unauthorized use or disclosure. All right, title, and interest to Software of
Licensor shall at all times remain vested in Licensor. The Software is the
exclusive property of Licensor and contains valuable proprietary information and
trade secrets of Licensor developed at a great cost and expense. Licensee agrees
not to translate, decompile, disassemble, reverse-engineer, create derivative
works, or take any other steps intended to produce a source language statement
of the Software and not to copy, reproduce, distribute, transfer, or disclose
the Software to others without the prior consent of Licensor, except as
contemplated by the Master Agreement or this Agreement. Any violation of the
foregoing restrictions shall terminate this Agreement and the Master Agreement.
Licensee will retain on each copy of the Software and user documentation that it
distributes any copyright, trademark, and other intellectual property rights of
Licensor.
c. RETURN OF DEPOSIT. Licensee shall immediately return the Deposit
materials if Licensor has cured the release conditions giving rise to the
release of the Deposit and resumes performance of its obligations under the
Master Agreement. The Escrow Agreement shall be reinstated upon Licensee's
return of the Deposit and payment of any fees to Holder. Licensee shall return
the Deposit materials in accordance with the standard requirements of Holder.
2. RESTRICTIONS ON USE OF DEPOSIT MATERIALS: Licensee hereby agrees to
comply with all of the following provisions in its use of the Deposit materials
following any release:
(i) Licensee shall keep the Deposit materials in a secure location
so as to preclude unauthorized persons from having access to the contents
thereof at all times when the Deposit materials are being used in accordance
with the provisions of this Escrow Agreement. Licensee shall permit Deposit
materials to be removed only to the extent of Licensee's actual use of any such
contents as required for the exercise of Licensee's rights pursuant to this
Escrow Agreement and the Master Agreement.
Page 17
(ii) The Deposit materials shall remain on Licensee's premises at
all times and shall be returned to the secure location when not in direct or
immediate use.
(iii) Licensee shall limit use of, and access to, the Deposit
materials to those of its employees and consultants who are directly involved in
the use of the Deposit materials to support the Licensor Software and/or to
carry out Licensee's permitted uses, and who have a need to know the contents of
the Deposit materials for the performance of their duties in connection with
such permitted uses.
(iv) Licensee shall cause all of its employees and consultants who
have access to the Deposit materials to comply with all restrictions on the
confidentiality of the Deposit materials set forth in the Master Agreement or in
any Confidentiality Agreement between the parties.
(v) Licensee shall assist Licensor in identifying and preventing
any use or disclosure of the Deposit material by the present or former employees
or consultants of Licensee in any manner which is not expressly permitted by the
Escrow Agreement or Master Agreement.
(vi) Licensee shall be liable for all damages or costs suffered by
Licensor in connection with any unauthorized transfer, disclosure, copying,
duplication, reproduction or use or misappropriation of the Deposit material by
Licensee or its employees or consultants.
(vii) At all times during which any portion of the Deposit
materials is in use, Licensee shall locate the Deposit materials in a room or
container which shall be securely locked so as to preclude unauthorized persons
from having access to it. Only those employees referred to in paragraph (iii)
above shall have access to keys to the lock of such room or container; and
Licensee shall record the signature and date and hour of entry to and departure
from such room or container by all persons.
(viii) Licensee shall not, and shall not permit any of its employees
or consultants to, reproduce or copy any of the Deposit material, or remove any
copyright or proprietary notice contained or included on or in the Deposit
material, or make any disclosure of the Deposit material, except to other
employees or consultants of Licensee as may be necessary or appropriate in
connection with their permitted use of Deposit material hereunder, or otherwise
attempt to transfer the Deposit material to anyone.
3. RETENTION OF TITLE. Licensor retains sole and exclusive title to and
ownership of the Deposit materials (except to the extent of components thereof
which are licensed to Licensor by its licensors), and all patents, copyrights,
and other intellectual property rights in and to the Deposit materials.
4. LICENSEE'S DEFAULT. If Licensee at any time defaults in its obligations
under the Master Agreement and such default is not remedied by Licensee within
any applicable grace period as provided in the Master Agreement and the Master
Agreement is terminated, Licensor may terminate the rights granted to Licensee
under this Escrow Agreement.
5. USE OF DEPOSIT AT LICENSEE'S RISK. LICENSEE ACKNOWLEDGES THAT IT USES
THE DEPOSIT MATERIALS AT ITS OWN RISK.
Page 18
EXHIBIT D
SCHEDULE OF FEES
----------------
[NEED TO INSERT CURRENT FEE SCHEDULE]
-------------------------------------
Page 19
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT J-1
-----------
Installation, Service Support and Training Terms
1. INSTALLATION, SERVICE AND SUPPORT. PRESSTEK will provide installation,
service and training support to XEROX and XEROX Company (hereinafter
collectively "XEROX") customers at PRESSTEK's then prevailing prices for those
services on the following terms and conditions:
a. Customer Installation and Training. As to production
Presses, PRESSTEK will provide installation, service and customer training
support to XEROX customers for the [CONFIDENTIAL TREATMENT REQUESTED]/*/ and
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Presses upon receipt of purchase order
from XEROX. Description of the installation and training provided by PRESSTEK is
described in Exhibit J-2, "Xerox/Presstek Docucolor DI Training." Such
installation, training and support services shall be at the pricing set forth
herein. Such prices shall be subject to change ninety (90) days following
written notification thereof.
b. Phone Support. PRESSTEK will maintain a XEROX [CONFIDENTIAL
TREATMENT REQUESTED]/*/ phone support PRESSTEK hotline for direct customer
technical support and troubleshooting. Fees for such support shall be determined
by the parties.
c. Service Support. Any field/customer identified problems
will be managed through a PRESSTEK process similar to the XEROX Software Problem
Action Request Process (SPAR Process). SPAR(s) are rated by severity of the
Product Failure and defined as follows:
(i) Severity Level 1 shall be defined as a
"catastrophic problem" wherein the customer's system is down, and/or
the user has no production capability, or a field service technician
cannot proceed with an installation.
(ii) Severity Level 2 shall be defined as a "severe
problem" wherein the customer's system is up, but production capability
is seriously degraded.
(iii) Severity Level 3 shall be defined as a
"moderate problem" wherein the customer's system is up, but production
capability is reduced.
(iv) Severity Level 4 shall be defined as a "minor
problem" wherein the customer's system is up, with no significant
impact to production.
d. Problem Severity Response Time/Resolution Time. PRESSTEK
will make every commercially reasonable attempt to achieve the following
Response (8:00 AM to 5:00 PM, EST Monday through Friday, excluding Holidays) and
Target Resolution Times for each SPAR:
Severity Response Time Target Resolution Time
Level (1) [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 20
Level (2) [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/
Level (3) [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/
Level (4) [CONFIDENTIAL TREATMENT REQUESTED]/*/
the next version of the Product(s)
PRESSTEK will use commercially reasonable efforts to remedy or ameliorate the
problem within a reasonable period, depending on the severity of the problem.
Failure of PRESSTEK to meet the above Response Time and Target Resolution Times
shall not be considered a breach of this Agreement., provided that PRESSTEK
makes every commercial reasonable attempt to do as provided herein.
e. Response Time. Defined as the time necessary to (1)
acknowledge the receipt of a problem, or (2) request any additional information
as is necessary for the PRESSTEK Technical Support group to escalate the problem
to the PRESSTEK QA or engineering groups for resolution. In the event of (2)
above, the PRESSTEK Technical Support group will be responsible for monitoring
the timeliness of the QA/Engineering response, as well as keeping the OEM
Technical Support group updated as to the status of the problem. In the case of
a problem submitted by telephone, it is assumed that the response is immediate
in that the call is answered as soon as a PRESSTEK Technical Support
representative is available to answer.
f. Resolution Time. Defined as the time necessary to provide a
software fix or work around, RMA, explanation of functionality or other such
item as to (1) resolve the customer's problem where it is proven to be the fault
of PRESSTEK software or hardware, and/or (2) provide reasonable explanation or
evidence that the problem is not the result of PRESSTEK hardware or software.
PRESSTEK Technical Support will use commercially reasonable efforts when
resolving Customer issues for XEROX.
g. Responsibilities of the Parties. The parties agree to
negotiate in good faith their respective obligations in connection with such
support, including without limitation acknowledgement, confirmation and
reproduction of the problem(s); communication between the parties and the
customer; preparation and provision of reports and technical notes.
h. Product(s) Support Availability. For a period of at least
five (5) years from the date Xerox last sells the Product(s) in either the
United States or Europe, whichever occurs first, PRESSTEK agrees to make
available to XEROX, at mutually reasonable prices and upon reasonable terms,
support which shall consist, at a minimum, of using its reasonable efforts to
correct coding errors and provide such corrected code to XEROX for direct or
indirect distribution to customers provided that PRESSTEK may terminate such
Product(s) support on six (6) months' written notice during which time PRESSTEK
and XEROX shall agree to an end of life program reasonably acceptable to XEROX
and PRESSTEK.
2. SPARE PARTS. Spares will be provided to XEROX on a [CONFIDENTIAL
TREATMENT REQUESTED]/*/basis.
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 21
a. Spare Parts Price List. PRESSTEK shall use best efforts to
supply XEROX a spare parts price list for the Product(s) within sixty (60) days
of the execution of this Agreement.
b. Spares Inventory. PRESSTEK will maintain spares at an
adequate level in Europe and North America (and other geographic locations as
further agreed by the parties) to support the then current installed base of
Presses.
c. Emergency Spares Inventory. PRESSTEK or its manufacturers
shall at all times maintain an adequate inventory of each Spare, at no cost to
XEROX, and use this supply of Spares solely for shipment to XEROX or its
Customers as emergency Spares, when requested. Deliveries of emergency Spares
shall be made as promptly as practicable but within three (3) business days of
XEROX's or customer's written request to PRESSTEK.
d. Spares Delivery and Invoicing. PRESSTEK will supply Spares
directly to XEROX customer. Invoicing of spares, whether from PRESSTEK to
Customer or PRESSTEK to XEROX and XEROX to the Customer shall be determined at
Xerox's discretion.
e. Spares. PRESSTEK shall make available to customers Spares
for a period of seven (7) years from the last delivery of Products under this
Agreement and notwithstanding any termination hereof, other than a termination
for breach by XEROX.
f. Equivalent Spares. XEROX agrees to accept equivalent and/or
interchangeable (form, fit and function compatible as defined herein) Spares
during the seven (7) year period set forth above, if PRESSTEK's source of supply
should change and such change is beyond PRESSTEK's reasonable control. The
determination as to whether Spares are equivalent and/or interchangeable shall
be made by mutual agreement of the parties.
g. Payment Terms. Payment for such spares shall be due within
forty-five (45) days of Xerox or its customer (subject to credit approval)
receipt of correct invoice.
h. Shipping Terms. Shipping terms for Spares shall be as
agreed by the parties.
i. Priority. PRESSTEK shall use commercially reasonable
efforts to supply Spares to XEROX or its customers on a priority basis, inside
of PRESSTEK's usual lead time, to replenish any XEROX low stock condition, and
shall immediately upon receipt of relevant purchase orders notify XEROX of the
anticipated shipment date of all Spares orders.
3. XEROX Service Training. PRESSTEK shall provide initial training to
XEROX service and support personnel and XEROX service trainers with respect to
all Presses without charge. Such Initial Training shall be reasonably directed
to familiarize XEROX personnel with the installation, servicing and associated
issues with regard to Presses and shall involve the
Page 22
training of no more than twenty XEROX personnel. Such training shall be
scheduled in groups of at least five people at a time at PRESSTEK's facilities
or another location agreed to by PRESSTEK, and actual training sessions (not
including preparation) shall involve not more than twenty man-days of PRESSTEK
training personnel time. Thereafter, at the request of XEROX, PRESSTEK will
provide additional training and technical assistance to XEROX personnel at
XEROX's expense. XEROX cost for such training activities is set forth in Exhibit
J-3.
Page 23
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT J-2
-----------
Xerox/Presstek Docucolor DI Training
Audience: Docucolor DI press operator, electronic prepress operators,
production managers
Purpose: Overview and hands-on training those involved with
installation, operation, management, sales and marketing for
the Xerox Docucolor DI direct imaging press using Presstek's
PEARL laser imaging equipment and PEARLrip.
Structure: This will be an orientation for the management and employees
of the printing and direct imaging technology, markets and
capabilities. It will be the hands-on, in-depth training of
the prepress workflow, RIP'g operations, DI methodologies,
press operation, waterless printing concepts and productivity
techniques. It will be customized to cover specific
configurations, file preparation/applications, troubleshooting
and testing in prepress and the press room.
The training is segmented into discrete sections: press
training, DI imaging training, prepress operations training,
and management/sales orientation. Once the press has been
installed, a Press Instructor is engaged to over the operation
of the printing press and color console. After this initial
course work, the Prepress and DI training occur
simultaneously. Toward the end of the training schedule, the
sales force and management team are given a feature/benefit
orientation. This incorporates a demonstration, given by the
newly trained operators to the entire company.
Page 24
Sun. Mon. Tues. Wed. Thurs. Friday Sat.
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
1 2 3 4 5 6
[CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT TREATMENT TREATMENT TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
7 8 9 10 11 12 13
[CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT TREATMENT TREATMENT TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/ REQUESTED]/*/
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
14 15 16 17 18 19 20
Press Press Press Press Press
training training training training training
-------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
21 22 23 24 25 26 Sales/mgmt 27
DI class DI class DI class DI class orientation
--------------------------------------------------------
RIP class RIP class RIP class RIP class
--------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
28 29 30 31
Personnel requirements
----------------------
Press riggers Press installer Electrical/imaging technician
Press & DI trainer Prepress (RIP) trainer Sales/management trainer
Account mgr to oversee
all tasks
If advanced training (monitoring during `live' production) is required, it
should be scheduled at least a week after the press has been signed off and
production jobs have been running for at least a week.
Docucolor 400 DI [CONFIDENTIAL TREATMENT REQUESTED]/*/ install is conservative.
Docucolor 233 DI should be less. Training outline, duration and resources are
subject to change without notice.
--------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 25
DAY ONE--PRESS TRAINING (AFTER INSTALLERS ARE FINISHED)
--------------- ------------------------------------------------------ ----------------------- --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================= ==========================
8:00 am Introductions Printer's management,
prepress and press
operators
--------------- ------------------------------------------------------ -----------------------
9:00 am Presstek overview (Presstek and Xerox videos)
--------------- ------------------------------------------------------ -----------------------
Printer tour and company overview
--------------- ------------------------------------------------------ -----------------------
Xerox Docucolor DI overview
--------------- ------------------------------------------------------ -----------------------
Components, configurations & workflow
--------------- ------------------------------------------------------ -----------------------
PEARLserver--specifications
--------------- ------------------------------------------------------ -----------------------
PEARLrip
--------------- ------------------------------------------------------ -----------------------
--------------- ------------------------------------------------------ -----------------------
10:30 am Training process, timetables, expectations, sign-off
requirements
--------------- ------------------------------------------------------ -----------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ -----------------------
--------------- ------------------------------------------------------ ----------------------- --------------------------
1:00 pm Press operation Printer's management,
Components overview/walk through prepress and press
operators
--------------- ------------------------------------------------------ -----------------------
Specifications
--------------- ------------------------------------------------------ -----------------------
Safety Overview
--------------- ------------------------------------------------------ ----------------------- --------------------------
3:00 pm Electrical Controls overview Press operator and
production mgr
--------------- ------------------------------------------------------ -----------------------
Mechanical Control overview
--------------- ------------------------------------------------------ -----------------------
Press display overview
--------------- ------------------------------------------------------ -----------------------
Startup sequence
--------------- ------------------------------------------------------ ----------------------- --------------------------
Page 26
DAY TWO--PRESS TRAINING
--------------- ------------------------------------------------------ ----------------------- --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================= ==========================
8:00 am Review of previous day's topics Press operator and
--------------- ------------------------------------------------------ ----------------------- production mgr
8:30 am Paper and dolly loading
--------------- ------------------------------------------------------ -----------------------
Feeder head Operator's Manual
--------------- ------------------------------------------------------ -----------------------
Mechanical adjustments
--------------- ------------------------------------------------------ -----------------------
Air Adjustments
--------------- ------------------------------------------------------ -----------------------
Adjustment and maintenance of the air compressor
--------------- ------------------------------------------------------ -----------------------
Feed board
--------------- ------------------------------------------------------ -----------------------
Adjustment of wheels & table belts
--------------- ------------------------------------------------------ -----------------------
Adjustment of double sheet detector
--------------- ------------------------------------------------------ -----------------------
Register
--------------- ------------------------------------------------------ -----------------------
Adjustment of head stops and side guides
--------------- ------------------------------------------------------ -----------------------
Chain delivery
--------------- ------------------------------------------------------ -----------------------
Adjustment of joggers
--------------- ------------------------------------------------------ -----------------------
Air adjustment of for sheet control
--------------- ------------------------------------------------------ -----------------------
Adjustment of skeleton wheels
--------------- ------------------------------------------------------ -----------------------
Exercises covering feed, delivery and register
--------------- ------------------------------------------------------ -----------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ -----------------------
Plate cylinder
--------------- ------------------------------------------------------ -----------------------
Plate bending and mounting
--------------- ------------------------------------------------------ -----------------------
Plate clamp adjustment
--------------- ------------------------------------------------------ -----------------------
Radial and axial adjustment
--------------- ------------------------------------------------------ -----------------------
Blanket cylinder
--------------- ------------------------------------------------------ -----------------------
Blanket mounting and packing
--------------- ------------------------------------------------------ -----------------------
Adjustment of printing pressures
--------------- ------------------------------------------------------ -----------------------
Proper use of the packing gauge
--------------- ------------------------------------------------------ -----------------------
Transfer cylinder
--------------- ------------------------------------------------------ -----------------------
Setting for in-line printing
--------------- ------------------------------------------------------ -----------------------
Adjustment for printing pressure
--------------- ------------------------------------------------------ -----------------------
Adjustment for sheet size
--------------- ------------------------------------------------------ -----------------------
Dryer
--------------- ------------------------------------------------------ -----------------------
Operation and settings
--------------- ------------------------------------------------------ -----------------------
Anti-setoff powder unit
--------------- ------------------------------------------------------ -----------------------
Operation/loading and settings
--------------- ------------------------------------------------------ -----------------------
Exercises - plate loading, blanket replacements,
dryer and powder settings
--------------- ------------------------------------------------------ ----------------------- --------------------------
Page 27
DAY THREE--PRESS TRAINING
--------------- ------------------------------------------------------ ----------------------- --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================= ==========================
8:00 am Review of previous day's topics Press operator and
production mgr
--------------- ------------------------------------------------------ -----------------------
8:30 Inking system
--------------- ------------------------------------------------------ -----------------------
Adjustment of ink rollers and controls
--------------- ------------------------------------------------------ -----------------------
Standard form roller settings
--------------- ------------------------------------------------------ -----------------------
Inks: loading, tack, cleanup
--------------- ------------------------------------------------------ -----------------------
Maintenance of ink rollers
--------------- ------------------------------------------------------ -----------------------
Wash-up devices and procedures
--------------- ------------------------------------------------------ -----------------------
Color Console
--------------- ------------------------------------------------------ -----------------------
Ink key and register control, saving job
settings
--------------- ------------------------------------------------------ -----------------------
Perfecting setup and operation
--------------- ------------------------------------------------------ -----------------------
Exercises covering inking, console, wash up
--------------- ------------------------------------------------------ -----------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ -----------------------
Inking temperature control system overview
--------------- ------------------------------------------------------ -----------------------
Press preventative maintenance Maintenance Chart
--------------- ------------------------------------------------------ -----------------------
Ink rollers, lubrication, powder unit
--------------- ------------------------------------------------------ -----------------------
Exercises printing tests and exercises
--------------- ------------------------------------------------------ ----------------------- --------------------------
DAY FOUR--PRESS TRAINING
--------------- ------------------------------------------------------ ----------------------- --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================= ==========================
8:00 am Review of previous day's topics Press operator and
production mgr
--------------- ------------------------------------------------------ -----------------------
8:30 am Exercises printing tests and exercises
--------------- ------------------------------------------------------ -----------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ -----------------------
1:00 pm Sign-off press portion of the installation--test
forms printed
--------------- ------------------------------------------------------ ----------------------- --------------------------
DAY FIVE--PRESS TRAINING
--------------- ------------------------------------------------------ ----------------------- ---------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================= ===========================
8:00 am Review of previous day's topics Press operator and
production mgr
--------------- ------------------------------------------------------ -----------------------
8:30 am Buffer time to complete unfinished exercises/testing
--------------- ------------------------------------------------------ -----------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ -----------------------
1:00 pm Buffer time to complete unfinished exercises/testing
--------------- ------------------------------------------------------ ----------------------- ---------------------------
Page 28
DAY ONE--DI TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Introductions Printer's management,
prepress and press
operators
--------------- ------------------------------------------------------ ------------------------
8:30 am Printer's tour of facility and Company Overview
--------------- ------------------------------------------------------ ------------------------
9:30 am Training process, timetables, expectations, sign-off
requirements
--------------- ------------------------------------------------------ ------------------------ --------------------------
10:30 Trainer evaluation of the system--run test jobs Just instructor
--------------- ------------------------------------------------------ ------------------------ --------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------ --------------------------
1:00 pm DI imaging overview--how it works, classroom Press production mgr and
discussion press operator
--------------- ------------------------------------------------------ ------------------------
PEARLdry plate overview--how it works
--------------- ------------------------------------------------------ ------------------------
Hardware component overview--what each piece does
--------------- ------------------------------------------------------ ------------------------
Demo
--------------- ------------------------------------------------------ ------------------------
Imaging console walk through
--------------- ------------------------------------------------------ ------------------------
Networks-- PEARLserver to Imaging console
--------------- ------------------------------------------------------ ------------------------
PEARLview
--------------- ------------------------------------------------------ ------------------------
PEARLimaging
--------------- ------------------------------------------------------ ------------------------
1-up, 2-up or mixed job
--------------- ------------------------------------------------------ ------------------------
Plate cleaning techniques
--------------- ------------------------------------------------------ ------------------------
Ink key profiles
--------------- ------------------------------------------------------ ------------------------
Register
--------------- ------------------------------------------------------ ------------------------
Makeready
--------------- ------------------------------------------------------ ------------------------ --------------------------
Page 29
DAY TWO--DI TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Review of previous day's topics Press production mgr and
press operator
--------------- ------------------------------------------------------ ------------------------ --------------------------
8:30 am Waterless inks Complete Guide to
Waterless Printing Book
--------------- ------------------------------------------------------ ------------------------
PEARLdry plate touch-up
--------------- ------------------------------------------------------ ------------------------
Temperature control unit
--------------- ------------------------------------------------------ ------------------------
PEARLview
--------------- ------------------------------------------------------ ------------------------
Viewing, zoom levels, densitometer, ruler, QC
methods
--------------- ------------------------------------------------------ ------------------------
PEARLimaging hands-on
--------------- ------------------------------------------------------ ------------------------
All plates, single plate
--------------- ------------------------------------------------------ ------------------------
1-up, 2-up or mixed job
--------------- ------------------------------------------------------ ------------------------
Multitasking operations while imaging
--------------- ------------------------------------------------------ ------------------------
Makeready techniques
--------------- ------------------------------------------------------ ------------------------
Printing exercises
--------------- ------------------------------------------------------ ------------------------
Calibration and screening test forms
--------------- ------------------------------------------------------ ------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------
1:00 pm Preventive maintenance Maintenance Chart
--------------- ------------------------------------------------------ ------------------------
Zone linearization
--------------- ------------------------------------------------------ ------------------------
Printing exercises Step Scales test forms
--------------- ------------------------------------------------------ ------------------------
Calibration and screening test forms
--------------- ------------------------------------------------------ ------------------------ --------------------------
DAY THREE--DI TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Review of previous day's topics Prepress production mgr
and operators
--------------- ------------------------------------------------------ ------------------------
8:30 am Imposition and perfecting options
--------------- ------------------------------------------------------ ------------------------
Ghosting Tests
--------------- ------------------------------------------------------ ------------------------
Press room work--imposition and perfecting exercises
--------------- ------------------------------------------------------ ------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------
1:00 pm Sign-off press portion of the installation--test
forms printed
--------------- ------------------------------------------------------ ------------------------ --------------------------
Page 30
DAY FOUR--DI TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Review of previous day's topics Press production mgr and
press operator
--------------- ------------------------------------------------------ ------------------------
8:30 am Corporate identity jobs Company brochure
--------------- ------------------------------------------------------ ------------------------
RIP and print
--------------- ------------------------------------------------------ ------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------
1:00 pm Corporate identity jobs or customer jobs
--------------- ------------------------------------------------------ ------------------------
RIP and print
--------------- ------------------------------------------------------ ------------------------ --------------------------
DAY ONE--PREPRESS TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Introductions Printer's management,
prepress and press
operators
--------------- ------------------------------------------------------ ------------------------
8:30 am Printer's tour of facility and Company Overview
--------------- ------------------------------------------------------ ------------------------
9:30 am Training process, timetables, expectations, sign-off
requirements
--------------- ------------------------------------------------------ ------------------------ --------------------------
10:30 Trainer evaluation of the system--run test jobs Just instructor
--------------- ------------------------------------------------------ ------------------------ --------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------ --------------------------
1:00 pm PEARLserver--specifications and standard settings Prepress production mgr
and operators
--------------- ------------------------------------------------------ ------------------------
PEARLrip demo and overview
--------------- ------------------------------------------------------ ------------------------
Page setups
--------------- ------------------------------------------------------ ------------------------
Screening
--------------- ------------------------------------------------------ ------------------------
Calibration
--------------- ------------------------------------------------------ ------------------------
Roam
--------------- ------------------------------------------------------ ------------------------
Start Inputs
--------------- ------------------------------------------------------ ------------------------
Networks
--------------- ------------------------------------------------------ ------------------------
Prepress options and configurations
--------------- ------------------------------------------------------ ------------------------
PEARLserver to PRISM
--------------- ------------------------------------------------------ ------------------------
File formats
--------------- ------------------------------------------------------ ------------------------
PEARLfile bitmaps
--------------- ------------------------------------------------------ ------------------------
PostScript, TIFF/IT, PDF, DCS 2.0
--------------- ------------------------------------------------------ ------------------------
Workflow considerations
--------------- ------------------------------------------------------ ------------------------
AppleTalk Chooser-level device
--------------- ------------------------------------------------------ ------------------------
Macintosh volume
--------------- ------------------------------------------------------ ------------------------
DCS/OPI
--------------- ------------------------------------------------------ ------------------------
PEARLview
--------------- ------------------------------------------------------ ------------------------
Viewing, zoom levels, densitometer, ruler, QC
methods
--------------- ------------------------------------------------------ ------------------------
PEARLmerge
--------------- ------------------------------------------------------ ------------------------
Bitmap--cropping, add or remove a strip
--------------- ------------------------------------------------------ ------------------------
Bitmap--ganging, imposition, perfecting
--------------- ------------------------------------------------------ ------------------------
Exercises--cropping, imposition, perfecting
--------------- ------------------------------------------------------ ------------------------ --------------------------
Page 31
DAY TWO--PREPRESS TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Review of previous day's topics Prepress production mgr
and operators
--------------- ------------------------------------------------------ ------------------------
8:30 am Job preflighting for DI press
--------------- ------------------------------------------------------ ------------------------
Page makeup applications
--------------- ------------------------------------------------------ ------------------------
Print drivers
--------------- ------------------------------------------------------ ------------------------
Trapping
--------------- ------------------------------------------------------ ------------------------
Proofing discussions
--------------- ------------------------------------------------------ ------------------------
Dye-sub, inkjet, HP2000, PEARLhdp, press proofs
--------------- ------------------------------------------------------ ------------------------
In-depth screening Test forms
--------------- ------------------------------------------------------ ------------------------
Screen rulings, dot shapes, angles, yellow
deviation
--------------- ------------------------------------------------------ ------------------------
Extra grey levels, highlight
--------------- ------------------------------------------------------ ------------------------
Tests--screening, dot shapes, levels of grey
--------------- ------------------------------------------------------ ------------------------
Initial press run and verification press run
--------------- ------------------------------------------------------ ------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------
In-depth calibration Step Scales test forms
--------------- ------------------------------------------------------ ------------------------
Target vs. actual dot gain curves
--------------- ------------------------------------------------------ ------------------------
Determine target densities and dot gain levels
--------------- ------------------------------------------------------ ------------------------
Step wedge tests, densitometry, input
--------------- ------------------------------------------------------ ------------------------
Initial press run and verification press run
--------------- ------------------------------------------------------ ------------------------ --------------------------
DAY THREE--PREPRESS TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Review of previous day's topics Prepress production mgr
and operators
--------------- ------------------------------------------------------ ------------------------
8:30 am PEARLrip backups
--------------- ------------------------------------------------------ ------------------------
Fonts, Page Setups, Calibration curves
--------------- ------------------------------------------------------ ------------------------
Imposition and perfecting options
--------------- ------------------------------------------------------ ------------------------
Exercises--imposition/perfecting
--------------- ------------------------------------------------------ ------------------------
Press room work--imposition and perfecting exercises
--------------- ------------------------------------------------------ ------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------
1:00 pm Sign-off prepress portion of the installation--test
forms
--------------- ------------------------------------------------------ ------------------------ --------------------------
Page 32
DAY FOUR--PREPRESS TRAINING SESSIONS
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Review of previous day's topics Prepress production mgr
and operators
--------------- ------------------------------------------------------ ------------------------
8:30 am Corporate identity jobs Company brochure
--------------- ------------------------------------------------------ ------------------------
RIP and print
--------------- ------------------------------------------------------ ------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------
1:00 pm Corporate identity jobs or customer jobs
--------------- ------------------------------------------------------ ------------------------
RIP and print
--------------- ------------------------------------------------------ ------------------------ --------------------------
3:00 pm Service Overview Production mgr, operators
--------------- ------------------------------------------------------ ------------------------
Warranty, telephone and on-site service, spare
parts
--------------- ------------------------------------------------------ ------------------------ --------------------------
DAY ONE-- SALES/MANAGEMENT TRAINING
--------------- ------------------------------------------------------ ------------------------ --------------------------
Time Topics Handouts/Exercises Presenter/Attendees
=============== ====================================================== ======================== ==========================
8:00 am Introductions everyone
--------------- ------------------------------------------------------ ------------------------
8:30 am Video overviews of Xerox & Presstek DI
--------------- ------------------------------------------------------ ------------------------
9:00 am Demo--presented by production mgrs, prepress and Corporate identity
press operators piece
--------------- ------------------------------------------------------ ------------------------
noon Lunch & discussions
--------------- ------------------------------------------------------ ------------------------
1:00 pm Feature/benefit discussion
--------------- ------------------------------------------------------ ------------------------
DI quality
--------------- ------------------------------------------------------ ------------------------
Throughput times
--------------- ------------------------------------------------------ ------------------------
Cost savings
--------------- ------------------------------------------------------ ------------------------
Waterless printing
--------------- ------------------------------------------------------ ------------------------
Review of samples, tests
--------------- ------------------------------------------------------ ------------------------
3:30 pm Wrap-up questions and comments Evaluation forms
--------------- ------------------------------------------------------ ------------------------
4:30 pm Depart for airport
--------------- ------------------------------------------------------ ------------------------ --------------------------
Page 34
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT J-3
-----------
INSTALLATION, SERVICE SUPPORT AND TRAINING PRICING
DOCUCOLOR 400 DI ([CONFIDENTIAL TREATMENT REQUESTED]/*/)
--------------------------------------------------------------- ---------------
Description Xerox Cost
--------------------------------------------------------------- ---------------
4-Color Installation w/ 90 days Labor Warranty $[CONFIDENTIAL
TREATMENT
REQUESTED/*/
--------------------------------------------------------------- ---------------
5-Color Installation w/ 90 days Labor Warranty $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
4-Color 9 Month-Labor Warranty, Option B $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
5-Color 9 Month- Labor Warranty, Option B $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
4-Color 12 Month-Full Year Parts & Labor SMA, Option A $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
5-Color 12 Month-Full Year Parts & Labor SMA, Option A $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
4-Color 12 Month-Unlimited Labor SMA, Option B $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
5-Color 12 Month- Unlimited Labor SMA, Option B $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 34
--------------------------------------------------------------- ---------------
4-Color 12 Month-Limited Labor SMA, Option C $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
5-Color 12 Month- Limited Labor SMA, Option C $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
4-Color 12 Month-Parts Only SMA, Option D $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
5-Color 12 Month- Parts Only SMA, Option D $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Daily Rate-One Day Minimum $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Service Travel Rate $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Service Standard Rate $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Service Weekend/Overtime Rate(>8 hours/day) $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Service Holiday Rate $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
On-Site Training-5 day minimum $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Class Room Training-3 day minimum $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
*shipping charges, insurance, site and electrical preparation not included
**plus travel expenses
***a minimum of 3 and a maximum of 5 people per training session See attached
Service Maintenance Agreement for Option Descriptions and Terms and Conditions
Page 35
DOCUCOLOR 233 DI ([CONFIDENTIAL TREATMENT REQUESTED]/*/)
--------------------------------------------------------------- ---------------
Description Xerox Cost
--------------------------------------------------------------- ---------------
Installation w/ 90 Day Labor Warranty $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
9 Month Labor Warranty-Option B $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
12 Month-Full Year Parts & Labor SMA, Option A $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
12 Month-Unlimited Labor SMA, Option B $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
12 Month-Limited Labor SMA, Option C $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
12 Month-Parts Only SMA, Option D $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Daily Rate-One Day Minimum $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Service Travel Rate $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Service Standard Rate $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 36
--------------------------------------------------------------- ---------------
Description Xerox Cost
--------------------------------------------------------------- ---------------
Service Weekend/Overtime Rate(>8 hours/day) $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Service Holiday Rate $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
On-Site Training-5 day minimum $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
Class Room Training-3 day minimum $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/
--------------------------------------------------------------- ---------------
*shipping charges, insurance, site and electrical preparation not included
**plus travel expenses
***a minimum of 3 and a maximum of 5 people per training session See attached
Service Maintenance Agreement for Option Descriptions and Terms and Conditions
XEROX SERVICE TRAINING
--------------------------------------------------------------- ----------------
Description Xerox Cost*
--------------------------------------------------------------- ----------------
--------------------------------------------------------------- ----------------
Press Operator Training-1 week $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/per
person
--------------------------------------------------------------- ----------------
--------------------------------------------------------------- ----------------
Prepress Applications Training-1 week $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/per
person
--------------------------------------------------------------- ----------------
--------------------------------------------------------------- ----------------
Plate Application Training-1 week $[CONFIDENTIAL
TREATMENT
REQUESTED]/*/per
person
--------------------------------------------------------------- ----------------
--------------------------------------------------------------- ----------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press Service/ $[CONFIDENTIAL
Installation Training-2 weeks TREATMENT
REQUESTED]/*/per
person
--------------------------------------------------------------- ----------------
--------------------------------------------------------------- ----------------
[CONFIDENTIAL TREATMENT REQUESTED]/*/ Press Service/ $[CONFIDENTIAL
Installation Training-2 weeks TREATMENT
REQUESTED]/*/per
person
--------------------------------------------------------------- ----------------
*a minimum of 3 and a maximum of 5 people per training session
------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 37
MASTER SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN PRESSTEK, INC. AND XEROX CORPORATION
SEPTEMBER 21, 2000
EXHIBIT J-4
-----------
Presstek Service Agreement
Service agreement between Presstek, Inc. and:
Company name and address here
Contact Name :
Contact Phone:
Contact Fax :
SERVICE COMMENCEMENT DATE:
Presstek, Inc., hereinafter Company, agrees to provide service and maintenance
support to Customer name, hereinafter Customer, for the equipment listed on
Equipment List, (the "Equipment"), attached hereto as Attachment A and made a
part of this agreement, subject to inspection and acceptance by Company.
1. SERVICE AND MAINTENANCE OPTIONS
(INDICATE SELECTION(S) ON ATTACHMENT A)
(a) All parts (not including modified parts, expendable parts and supplies, as
defined below), labor for unlimited remedial service calls during the Principal
Period of Maintenance (PPM) and 2 Preventive Maintenance (PM) visits per year.
(b) Labor only for unlimited number of remedial service calls during the PPM and
PM as per attached Equipment List; parts are additional.
(c) Labor only for 4 remedial service calls; parts are additional.
(d) All parts except integrated circuit boards unless equipment is protected by
a Company approved power protection device.
Company shall respond, on-site, to all unscheduled remedial service requests
within 48 hours, Monday though Friday, Presstek holidays excluded.
Except as otherwise stated herein, Company agrees to provide service and
maintenance, for equipment covered under this agreement, to keep said equipment
in good working order as per selected "Service and Maintenance Option" above.
Parts and components shall be selected by Company, shall be furnished on an
exchange basis and shall be new or perform substantially similar to new parts
and components. Replaced parts or components shall become the property of
Customer and exchanged parts shall become the property of Company.
Expendable and/or consumable parts, such as printing plates, including but not
limited to, maintenance kits, blankets, and covers are not covered by this
Agreement.
Except as a selected "Service and Maintenance Option" above, service does not
include routine or preventive maintenance nor does it include the refinishing or
replacement of external cosmetic parts, including chassis, housings, cabinets or
cabinet parts. Where preventive maintenance is covered, said preventive
maintenance shall be performed according to original equipment manufacturer
recommendation as determined by Company.
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1.2 EQUIPMENT OVERHAUL
In the event that Equipment requires repairs beyond the limits of regular
service and maintenance, such as, but not limited to, excessive wear and tear,
age, long term use, excessive use or other similar causes, an overhaul, as
determined by Company, may be required. Said overhauls are not covered by this
agreement unless Customer has selected option A from the Service and Maintenance
Options, in which case the total cost to Customer of overhaul will not exceed
the Customer cost of Option A. In such event an estimate of repairs shall be
submitted by Company to Customer detailing the cost of an overhaul. If Customer
does not authorize said overhaul, Company may discontinue service of the
equipment without refund of the unused portion of this agreement. Company may
refuse to renew this agreement upon expiration.
2. TERM
The initial term of this agreement is for one year from the service commencement
date as specified on the Equipment List attached hereto and made a part hereof.
This Agreement shall renew automatically for successive periods of one (1) year,
on the same terms and conditions at Company's then prevailing prices, except
that it shall not be renewed if either party provides written notice of
non-renewal at least thirty (30) days prior to the expiration of the
then-current term of the Agreement.
3. SERVICE AVAILABILITY
Remedial service may be requested by calling the Service Dispatcher at:
▇▇▇-▇▇▇-▇▇▇▇, X3260. Company will provide service and maintenance under the
terms of this agreement, during the PPM as follows:
Monday through Friday 8:00am - 5:00pm (EST) ____________________
EXCLUDING UNITED STATES OR COMPANY HOLIDAYS INDICATED
[ ] New Year's Day [ ] Thanksgiving Day
[ ] Memorial Day [ ] Christmas Day
[ ] Independence Day [ ] Labor Day
HOLIDAYS THAT FALL ON SATURDAY OR SUNDAY ARE OBSERVED ON THE SAME DAY DECLARED
BY THE UNITED STATES GOVERNMENT. NOTE: THE PRESSTEK HOLIDAY SCHEDULE IS SUBJECT
TO CHANGE.
Service and maintenance rates quoted herein are based on the above Principal
Period of Maintenance (typically one work shift). Travel hours are defined as
"portal to portal". Overtime hours are defined as any work hours exceeding 8
hours in one work day or 24 hour time period.
Presstek hourly labor rates (in USD) are as follows:
Travel $[CONFIDENTIAL TREATMENT REQUESTED]/*/
------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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Work $[CONFIDENTIAL TREATMENT REQUESTED]/*/
Overtime $[CONFIDENTIAL TREATMENT REQUESTED]/*/
Holidays $[CONFIDENTIAL TREATMENT REQUESTED]/*/
4. CHARGES
Service and maintenance charges shall be payable by Customer in accordance with
the payment terms set forth in Exhibit A. In addition, Company shall invoice
Customer, at Company's then-current hourly rates and parts prices, for services
and for parts supplied which are not covered by this agreement. In addition to
the part prices and service charges payable hereunder, Customer shall pay all
sales and use and other applicable taxes and shipping costs related to Company's
provision of parts and services hereunder.
All charges and costs for which Company sends an invoice to Customer shall be
due and payable,in full, thirty(30) days from the date of the invoice. In the
event Customer fails to pay, when due, any invoice or other amount payable
hereunder, Customer agrees to pay Company a late payment charge on all past due
amounts equal to one and one half percent (1.5%) per month. At Company's option
Company may suspend service until all outstanding, overdue invoices are paid in
full. Customer shall pay on demand all of Company's costs and expenses,
including reasonable attorney's or collection agency's fees, incurred in
enforcing Customer's obligations under this Agreement.
5. EXCLUSIONS
Service and maintenance support to be provided under this Agreement does not
include repairs, replacement of parts and labor caused by, arising from, related
to or made necessary by: a) use of equipment in a manner not recommended by
Company; b) failure to continually provide a suitable installation environment,
including but not limited to, adequate electrical power, air conditioning or
humidity control; c) Customer's improper use, management, or supervision of
covered equipment; d) accident and disaster, including but not limited to, fire,
flood, water, wind, or lightening; e) electrical work, devices, cables, etc.,
external to the equipment; f) the maintenance of accessories, alterations,
modifications, attachments or other devices not covered by this agreement; g)
excessive electrostatic discharge, improper grounding, improper power line
protection; h) failure of Customer to perform Company recommended
daily/weekly/monthly maintenance and cleaning; i) service providers and parts
installers other than the Company; j) improperly trained and inexperienced
operators.
6. ADDITIONS AND DELETIONS
New equipment may be added to, and replacements deleted from this agreement upon
receipt of ten (10) days written notice to Company, subject to written
acceptance by Company. This provision may be waived if new equipment is
purchased from Company.
7. TERMINATION
THIS AGREEMENT MAY BE TERMINATED UNDER ANY OF THE FOLLOWING CONDITIONS:
(a) Either party may immediately terminate this agreement or any renewal hereof
by giving prior written notice of such termination to the other party in the
event such other party becomes insolvent or institutes or permits to be
instituted against it any proceedings seeking its
------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
Page 40
receivership, trusteeship, bankruptcy, reorganization, readjustment of debt,
assignment for the benefit of creditors, or other proceedings under the United
States Federal Bankruptcy Act or as provided by any other insolvency law, state
or federal, to the extent such termination is valid under such law.
(b) Company may immediately terminate this Agreement, or may suspend services to
be provided hereunder, at any time by giving prior written notice of such
termination or suspension to Customer in the event Customer fails to pay, when
due, any invoice or other amount due under this Agreement.
(c) Either party may terminate this Agreement for a non-monetary default, if the
other party fails to perform any of its material obligations set forth in this
Agreement (a "Material Default"), and such failure continues for more than
thirty days after written notice is sent by the terminating party specifying the
nature of the failure.
Upon termination of this agreement for any reason, Company's obligation to
provide service and maintenance support, as herein set forth, shall immediately
cease and all outstanding invoiced amounts due by Customer to Company shall,
notwithstanding prior invoice terms, become immediately due and payable. Any
amounts paid by Customer to Company for service and maintenance support shall
not be refundable. If this Agreement terminates prior to the end of any term for
any reason other than Company's Material Default, Company's insolvency or the
institution of bankruptcy proceedings against Company, Customer shall be
obligated to pay Company on demand the price of a full one-year term as set
forth on Exhibit A. If this Agreement terminates due to Company's adjudged
Material Default, Company's insolvency or the institution of bankruptcy
proceedings against Company, Customer shall be obligated to pay Company on a
prorated basis for that portion of the terminated Agreement which runs from the
Service Commencement Date, or its anniversary date for any renewal term, to the
effective date of the termination.
8. LIMITED WARRANTY
Company warrants that services will be performed hereunder in a workmanlike
manner in accordance with reasonable commercial standards. Parts are warranted
against defects solely to the extent of the manufacturer's warranty, if any.
Labor provided by Company is warranted for 30 days from the date of service.
8.1 DISCLAIMER OF WARRANTIES
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8 ABOVE, REPLACEMENT PARTS,
LABOR AND SERVICES ARE PROVIDED"AS IS". COMPANY SPECIFICALLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY
COMPANY SHALL NOT BE HELD RESPONSIBLE FOR COMPANY'S INABILITY TO PROVIDE TIMELY
SERVICE DUE TO DELAYS. IN NO EVENT WILL COMPANY, OR ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, OR AFFILIATES, BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR
BUSINESS INFORMATION, LIABILITY TO THIRD PARTIES, AND THE LIKE, ARISING OUT OF
THE USE OR INABILITY TO USE THE EQUIPMENT. COMPANY'S LIABILITY TO CUSTOMER (IF
ANY) FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF THE ACTION, WILL BE LIMITED TO, AND IN NO EVENT EXCEED THE AMOUNT
PAYABLE BY CUSTOMER FOR SERVICE AND MAINTENANCE SUPPORT ON THE UNIT OF EQUIPMENT
INVOLVED, AS LISTED IN ATTACHMENT "A" FOR THE THREE (3) MONTHS IMMEDIATELY
PRECEDING THE EVENT WHICH ALLEGEDLY GAVE RISE TO THE DAMAGES.
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10. INDEMNIFICATION
Each party shall indemnify and hold the other harmless from and against any
claim, loss, liability, or expense, including but not limited to, damages, costs
and attorney fees, arising out of or in connection with any acts of omissions of
the other party and its agents and employees.
11. GENERAL
This Agreement and its attachments, as accepted by Company and Customer,
supersede any previous written or oral agreements or understandings between the
parties concerning the subject hereof, and constitute the entire such agreement
between the parties. No amendments or additions to the terms and conditions of
this Agreement shall be valid unless set forth in writing and signed by an
authorized representative of each of the parties.
Waiver by either party of a breach of any of the provisions hereof shall not
constitute a waiver of any succeeding breach of such provision or a waiver of
such provision itself. The invalidity or unenforceability of any term or
provision of this Agreement shall in no way impair or affect the remainder
thereof, which shall continue in full force and effect.
This Agreement shall be construed, interpreted and enforced in accordance with
the laws of the State of New Hampshire. Any disputes under the Agreement or
concerning the business relationship between the parties must be litigated
exclusively in the Courts of the State of New Hampshire. If, however, the
parties have agreed in writing to arbitrate their disputes, the arbitration must
take place exclusively in the State of New Hampshire unless the parties have
agreed to arbitrate elsewhere. The prevailing party in any action concerning
this Agreement or the business relationship between the parties shall be
entitled to an award of costs and reasonable attorney's fees.
Any notice or other communication required under this Agreement shall be deemed
to have been duly given if it is delivered personally or by facsimile with proof
of receipt, or sent by registered or first-class mail, return receipt requested,
first-class postage prepaid, to a party at the address listed below, or at such
other address provided by the party.
12. ACCEPTANCE
Acceptance of this agreement by Company is contingent upon consistency with
Company's then current prices, and upon Company's determination that equipment
is in proper operating condition. Inspection and repairs necessary to bring
equipment to proper operating/mechanical condition shall be billed at Company's
then current prices. This Agreement shall not be binding upon Company unless an
officer of Company approves and accepts this Agreement by signing both the
Agreement and the attached attachment A.
12.1 ACCEPTANCE
Company Name: Presstek Inc.
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
Title: VP Sales, Marketing and Customer Service Date:
Customer Name__________________________________________________________________
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Address________________________________________________________________________
By_____________________________________________________________________________
Title_________________________________________________________Date ____________
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Equipment List -- Attachment A
Presstek, Inc. agrees to provide service and maintenance in accordance with
Service and Maintenance Agreement dated July 1, 2000, between Customer name and
Presstek at the rates and on the equipment listed below:
Customer Name: Phone:
PRICED [ ] Monthly [ ] Quarterly [ ] Annually
Payable: [ ] Monthly [ ] Quarterly [ ] Annually
Presstek's Direct Imaging kit, serial number xxxxxxxxx. The kit consists solely
of the Presstek parts (or their sub assemblies) listed in attachment B of this
document. Also included are the assemblies and sub-assemblies that constitute
the Docucolor400 DI printing press, serial number xxxxxxxx.
Options Price in USD Option(s) Selected Selected By
Option A $ _________ [ ] ____________
Option B $ _________ [ ] ____________
Option C $ _________ [ ] ____________
Option D $ _________ [ ] ____________
ACCEPTED
Company Signature ________________________________________
Printed Name: ___________________________________________
Title: __________________________________________________ Date: ________
Company Signature ________________________________________
Printed Name: ___________________________________________
Title: __________________________________________________ Date: ________
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