Exhibit 10.10
OEM Agreement
between
Hewlett-Packard Company
("HP")
and
Indigo N.V.
("Indigo")
CONFIDENTIAL
1
OEM AGREEMENT
THIS AGREEMENT is entered into on this 13th day of September, 2000 ("Effective
Date"), by and between HEWLETT-PACKARD COMPANY, a Delaware company with its
principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("HP"), and INDIGO N.V., a Netherlands company with its principal offices at
▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("Indigo").
WHEREAS, HP is engaged in the development, manufacture, marketing, sale, and
service of computers, printers, and other business and consumer products, and is
a leading global provider of computing and imaging solutions and services for
personal, office and enterprise applications, currently selling printers at
prices of up to approximately $10,000; and
WHEREAS, Indigo is engaged in the development, manufacture, marketing, sale and
service of Digital Offset Color/TM/ printing and imaging products that
incorporate Indigo's proprietary, ink-based digital printing technology, at
prices of approximately $150,000 and above, for commercial and industrial
applications; and
WHEREAS, on November 17, 1998, the Parties entered into a Strategic Affiliation
Agreement pursuant to which the Parties agreed, inter alia, to explore the
technical and economic feasibility of developing and selling digital color
printing products combining Indigo's and HP's technology and know-how for
applications not presently served by either firm, to identify the key "enablers"
necessary to achieve broad adoption of Indigo's technology in the corporate
enterprise environment, and to form a strategic technical alliance for exploring
such possible future products and applications; and
WHEREAS, the said feasibility exploration has been successfully completed, and
the Parties have concluded that, in collaboration with one another, they have
the opportunity to introduce products to serve production color printing and
publishing applications; and
WHEREAS, in order to capitalize upon such opportunities, the Parties wish to
enter into a commercial relationship to aggressively pursue the aforesaid
business opportunities by (a) HP's sale of certain Indigo products on an OEM
basis, on the terms and conditions set forth in this Agreement; (b) the joint
development of future products, as more fully described in the Jericho
Co-Development Agreement; and (c) an HP equity investment in Indigo, as more
fully described in the Stock Purchase Agreement.
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NOW THEREFORE, subject to the terms and conditions set forth herein, the
Parties agree as follows:
1. Definitions and Interpretation
1.1 Definitions
-------------------
Capitalized terms used in this Agreement and not otherwise defined have the
meanings as follows:
"Affiliate" means, with respect to a Party, any Person controlling, controlled
by or under common control with such Party. For the purposes of this
definition, control of a Person shall mean the ownership of 50% or more of the
voting power of such Person.
"Agreement" means this agreement and any appendices to this agreement.
"HP Customers" means customers of HP to whom HP has supplied an OEM Printer.
"Insolvency Event" means the occurrence of any of the following:
(a) An involuntary proceeding is commenced or an involuntary petition shall
be filed seeking (i) liquidation, reorganization or other relief in
respect of a Party or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for a Party or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 120 days or an order or decree approving or
ordering any of the foregoing shall be entered.
(b) A Party shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely (i.e., as imposed by applicable law)
and appropriate manner, any proceeding or petition described in clause
(a) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for a
Party or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing.
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(c) A Party shall become unable, admit in writing or fail generally to pay
its debts as they become due.
"Intellectual Property" means unpatented inventions, patent applications,
patents, design rights, copyrights (including, without limitation, rights in
computer software), know-how and other trade secret rights-and all other rights
or forms of protection of a similar nature or having equivalent or similar
effect to any of these rights (but excluding trademark rights), whether or not
any of these rights is registered, and including, without limitation,
applications for registration of, and rights to apply for, any such rights.
"Jericho Co-Development Agreement" means the agreement of that name entered
into by the Parties on the Effective Date.
"OEM Consumables" means all ink, imaging oil, image transfer blankets and photo
imaging plates (photoconductors) used in connection with OEM Printers.
"OEM Products" means, collectively, the OEM Printers, the OEM Consumables and
the OEM Spare Parts supplied by Indigo to HP pursuant to this Agreement.
"OEM Printers" means digital printers offered for sale by Indigo for general
commercial printing, which HP chooses to OEM under this Agreement.
"OEM Spare Parts" means all spare parts needed in connection with the OEM
Printers and as set forth in Indigo's spare parts catalog for each OEM Printer.
"Party" means either HP or Indigo (as the case may be) and "Parties" means both
HP and Indigo.
"Person" means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated
association, sole proprietorship, joint venture, government (or any agency or
political subdivision thereof) or other entity.
"Stock Purchase Agreement" means the agreement of that name entered into by the
Parties on or about the Effective Date.
2. OEM Appointment
2.1 Appointment
-------------------
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Subject to the terms of conditions of this Agreement, Indigo hereby appoints
HP, and HP hereby accepts such appointment, as an HP-branded OEM for the OEM
Products.
2.2 Applications
---------------------
HP shall have the right, either itself or through its appointed distributors,
to sell. lease, or otherwise place the OEM Products for any and all
applications and in any geographical territory. Indigo warrants that this
arrangement does not violate any distribution, OEM or other agreements or
arrangements it has with third parties. Notwithstanding the above, it is
understood that:
2.2.1 HP shall, until June 30, 2002, focus its sales and marketing
--------
efforts with respect to the OEM Products primarily on corporate
customers, government, certain quick-printers (i.e., chain or franchise
street-front printing establishments) although, for the avoidance of
doubt, HP shall be free to sell or lease the OEM Products to any
customer operating in any business segment or market.
2.2.2 HP's right to market and sell the OEM Products to customers in
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Japan, Australia, New Zealand, Indonesia, Thailand, Malaysia,
Singapore, Philippines, Brunei, Vietnam, Laos, Cambodia, Myanmar and
Fiji will commence only upon the expiration or termination of the
exclusive distribution rights granted by Indigo to a third party under
an agreement dated May 4, 1994 (as amended) ("Exclusive Distribution
Agreement") in respect of such countries. Indigo will not, and the
third party does not have the right to, renew, extend or modify rights
affecting exclusivity set forth in the Exclusive Distribution Agreement
(in whole or in part). Indigo shall exercise its right to terminate the
third party's exclusivity under the Exclusive Distribution Agreement
immediately after that right first arises.
2.3 Limitation on further OEM appointments by Indigo
--------------------------------------------------------
In order to enable HP to achieve penetration through sales of OEM Products
in the corporate enterprise ("print-for-own-use") segment, Indigo shall
refrain, through December 31, 2002, from appointing additional OEMs for the
same or similar products for the same applications. Such period shall be
automatically extended through December 31, 2003, if HP's purchases of OEM
Products from Indigo reaches $12.5 million in the fourth calendar quarter of
2002.
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2.4 Customer relationship management.
----------------------------------------
HP shall be the exclusive owner and manager of the relationship with HP
Customers. To this end, if Indigo is performing Services on HP's behalf. HP
shall determine the content of all interaction (if any) between Indigo and HP
Customers, including without limitation the content of all help desk scripting
and the representations made by Indigo personnel to HP Customers in all
circumstances. Further to the above, Indigo shall not contact or respond to
enquiries from any HP Customer without prior written approval of HP in each
case.
3. OEM Products
3.1 Initial OEM Product Identification
------------------------------------------
Within 90 days of the Effective Date, HP shall select, in consultation with
Indigo, the initial OEM Printers to be supplied to HP under this Agreement from
any one or two of Indigo's range of commercial printing products. Indigo shall,
at HP's cost, offer all reasonable assistance required by HP to identify such
printing products.
3.2 Additional Products
---------------------------
3.2.1 Adding New Products. HP shall have the right to submit a
---------------------------
Request For Quotation ("RFQ") to Indigo for inclusion of additional
current or future Indigo products (and related consumables and spare
parts) as OEM Printers. Indigo shall respond to such RFQs within 30
business days.
3.2.2 Indigo Assistance. Indigo shall, from time to time, as
-------------------------
reasonably requested by HP, collaborate with and discuss opportunities
for HP to OEM further Indigo products.
3.3 Substitution of Alternate OEM Products
----------------------------------------------
HP shall, until December 3 1,2003, distribute at least one OEM Product. HP
shall have the right, in its discretion, to discontinue (temporarily or
permanently) the distribution of any OEM Product. If such discontinuance
results in HP no longer distributing any OEM Products under this Agreement, HP
shall, prior to discontinuance, substitute another OEM Product to be agreed
upon. HP shall bear Indigo's reasonable costs associated with any such
discontinuance which ramps down at a rate that is more precipitous than that
set forth in the Forecast and ordering provisions of section 6.
3.4 Product Changes
-----------------------
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Indigo shall not make any material adverse change to any OEM Product without
prior written consent of HP, which HP shall have the right to withhold in its
reasonable discretion. A material adverse change is any change to an OEM
Product which would in any way be disruptive to HP's business in selling or
distributing the OEM Products or any ancillary products or services. Indigo
must give HP not less than 90 days notice of any non-material adverse change to
any OEM Product.
3.5 Product Enhancements
----------------------------
Indigo shall make available to HP, free of charge, all future improvements,
enhancements and product fixes to the OEM Products which it generally makes
available free of charge to its suppliers or customers. Such enhancements,
improvements and product fixes shall be made available no later than made
available to Indigo's suppliers or customers. To the extent that enhancements
are offered free of charge by Indigo to its own customers solely for the
purpose of providing a short-term sales incentive, Indigo shall not be
obligated to offer such enhancements to HP free of charge.
3.6 Changes suggested by HP
-------------------------------
HP shall have the right, from time to time, to suggest changes to the OEM
Products that it wishes Indigo to incorporate. The Parties shall engage in good
faith negotiations regarding any such changes.
3.7 New documentation
-------------------------
If any changes are made to the OEM Products as set forth in sections 3.4-3.6,
Indigo shall, as soon as possible thereafter, provide HP with appropriately
modified use and marketing documentation in electronic form.
4. Performance
4.1 Commercial Efforts and Promotions
-----------------------------------------
HP shall use commercially reasonable efforts to aggressively promote sales of
OEM Products with a view to maximizing sales or revenue from sales of OEM
Products. All marketing and promotion of the OEM Products as sold by HP shall
be conducted by HP in a manner not inconsistent with the marketing and
promotion of other similarly situated OEM products.
4.2 Minimum purchase commitments
------------------------------------
HP shall have no obligation to meet any minimum OEM Products sales targets.
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5. Supply of OEM Consumables and OEM Spare Parts
5.1 Supplies for OEM Products
---------------------------------
Indigo shall provide, and HP shall acquire from Indigo, all OEM Consumables and
OEM Spare Parts, and HP shall supply OEM Spare Parts and OEM Consumables only to
HP Customers.
5.2 Continuous supply by Indigo
-----------------------------------
For as long as there exist any HP Customers, Indigo will continue to supply the
relevant OEM Spare Parts and OEM Consumables to HP for its supply to HP
Customers. Termination or substitution by HP of its supply of any particular OEM
Printers under section 3.3 or termination of this Agreement shall not affect
Indigo's obligations as set forth in this section 5.2. The foregoing
notwithstanding, Indigo's aforesaid supply obligation, in the case of an OEM
Printer the manufacture of which has been discontinued, shall expire 10 years
after such discontinuance.
5.3 Indigo not to supply HP customers
-----------------------------------------
Indigo shall refrain from soliciting to supply OEM Consumables or OEM Spare
Parts to HP Customers.
6. Forecasts, Purchase orders and Fulfillment
6.1 Forecasts
-----------------
6.1.1 Forecast Date. HP shall, not later than 14 days after the date on
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which HP selects the OEM Printers pursuant to section 3.1, and
thereafter not later than each quarterly anniversary of that date
("Forecast Date"), provide Indigo with a written rolling forecast
("Forecast") of its estimated demand for OEM Products for the calendar
quarter commencing one year after the Forecast Date ("Forecast
Quarter"). Subject to section 6.2, the Forecasts shall not be binding
upon HP.
6.1.2 Non-binding estimate for 2001. HP estimates that its demand for
-----------------------------------
OEM Products for calendar year 2001 will reflect estimated aggregate
sales of OEM Products of $75-$100 million. This estimate is not binding
on HP in any way unless it is formally submitted by HP as a Forecast in
which case it will be subject to sections 6.1.1 and 6.2. HP shall,
prior to December 31, 2000, provide Indigo with a written Forecast of
its estimated quarterly requirements for OEM Products for calendar year
2001 and shall, after
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consultation with Indigo regarding timing and delivery constraints,
issue purchase orders accordingly and consistent with the process set
forth in section 6.2.
6.2 Variation of Forecast for OEM Printers
----------------------------------------------
After the expiry of the quarter following the Forecast Date ("Subsequent
Quarter"), the Forecast will become binding upon HP as a purchase order for the
OEM Printers set forth in the Forecast, subject to the following:
6.2.1 First Variation. HP may, at any time during the Subsequent
---------------------
Quarter, give Indigo notice in writing that it would like to increase
or decrease the quantity of OEM Printers set forth in the Forecast by
up to 30%, and upon giving such notice, the quantity of OEM Printers
the subject of the purchase order will be deemed to be increased or
decreased (as the case may be) accordingly.
6.2.2 Second Variation. HP may, at any time during the quarter
----------------------
following the Subsequent Quarter, give Indigo notice in writing that it
would like to either increase or decrease the quantity of OEM Printers
set forth in the Forecast by a further 15%. Upon giving such notice the
amount of OEM Printers the subject of the purchase order will be deemed
to be increased or decreased (as the case may be) accordingly.
6.3 Additional Increases for Printers
-----------------------------------------
Notwithstanding section 6.2, HP may increase the quantity of OEM Printers in any
purchase order by notice in writing sent to Indigo not less 90 days before the
quarter in which delivery of the OEM Printers the subject of that purchase order
is due to take place. Indigo shall make reasonable efforts to fulfill such
demand from HP for such increased quantities. In each such case, the price for
the additional OEM Printers will be the usual price charged by Indigo under this
Agreement, unless there is additional cost to Indigo in fulfilling the order for
the additional OEM Printers. If Indigo incurs such additional cost, HP will pay
the amount of the additional cost upon Indigo providing HP with reasonable
evidence of the additional cost incurred.
6.4 Forecast procedure review
---------------------------------
Not less than once every year the Parties will jointly review, conduct good
faith discussions regarding, and modify (as reasonably necessary) the provisions
of sections 6.2 and 6.3 in order to ensure that those provisions simultaneously
achieve the following objectives ("Objectives") of:
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6.4.1 providing HP with maximum flexibility in its ordering and
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purchasing of OEM Products from Indigo; and
6.4.2 providing Indigo with adequate time to manage supply of OEM
-----
Products to HP without incurring substantial additional costs as a
result of the flexibility granted to HP.
6.5 OEM Spare Parts and OEM Consumables
-------------------------------------------
The Parties will negotiate in good faith to implement, within 90 days of the
Effective Date Forecast, variation procedures for OEM Spare Parts and OEM
Consumables similar to those set forth in sections 6.2 and 6.3 with the goal of
achieving the Objectives. Such variation procedures will be subject to review,
negotiation and modification pursuant to section 6.4. Notwithstanding the
foregoing, Indigo represents that it will be able to provide significantly
greater flexibility to HP with respect to variations in orders for OEM Spare
Parts and OEM Consumables than it is able to offer HP under sections 6.2 and
6.3, provided that such flexibility is not precluded by HP's requirement for
unique branding of OEM Consumables.
6.6 Delivery and Title Transfer
-----------------------------------
Indigo shall deliver the OEM Products the subject of a purchase order in
accordance with a schedule setting forth the destinations and delivery times (to
be reasonably distributed throughout the quarter) to be submitted by HP to
Indigo not later than 30 days before the quarter in which HP requires delivery.
Such OEM Products shall be delivered, ex-works, Indigo's Israeli subsidiary's
premises, whereupon risk of loss of such OEM Products and title thereto shall
pass to HP.
6.7 Packing, Shipping and Insurance
---------------------------------------
Prior to delivery of the OEM Products in accordance with the provisions of
section 6.6 above, Indigo shall, at its expense, pack the relevant OEM Products
in a manner suitable for shipment. Immediately following such packing, Indigo
shall, should HP so request, arrange, in accordance with HP's instructions and
at HP's expense, for the shipment of such OEM Products to HP (or, if so
directed, to HP distributors or HP Customers) as well as for the procurement of
insurance thereon.
7. Maintenance, support, delivery, installation, and training ("Services")
7.1 Implementation Plan
---------------------------
The Parties will negotiate in good faith to enter into a binding implementation
plan for the provision of the Services (and the terms and conditions (including
price) for
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the provision thereof) within 90 days of the Effective Date. The implementation
plan shall give effect to the Parties' intention as follows:
7.1.1 Initial provision. Indigo shall initially provide all Services
-----------------------
required by HP or HP Customers commencing from not later than the
installation of the first OEM Printers but will be required to provide
Services to HP Customers only in geographic regions that would enable
Indigo to make a reasonable margin in providing the Services;
7.1.2 Training. Training services shall be provided by Indigo to "train
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the trainers" of HP;
7.1.3 Installation. Installation services shall be provided at HP's
------------------
request.
7.1.4 Change of provider. HP may request that either HP and/or one or
------------------------
more third party service providers provide any or all of the Services
where there would be material cost savings and where provision is made
to compensate Indigo for the reasonable unrecoverable costs of formerly
providing the Services;
7.1.5 Customer relationship management and branding of Services. HP's
---------------------------------------------------------------
rights set forth pursuant to section 2.4 shall apply to the provision
of the Services to any HP Customer, and, additionally, HP shall
determine the branding of products and identification tags worn by
Indigo personnel in providing the Services.
7.2 Documentation
---------------------
Commencing at the time of the first training courses, and continuing throughout
the term of this agreement, Indigo shall furnish to HP, in digital form, at no
charge, written training and sales materials equivalent to those materials
provided to Indigo's own sales personnel. In addition, along with each OEM
Product furnished to HP, Indigo shall, at its expense, supply one copy of the
standard operator's manual. Such manual shall be in the English language. At
HP's request, Indigo shall provide such operator's manuals in an HP branded
version, provided that HP has supplied Indigo with appropriate digital files.
8. Pricing and payment
8.1 Agreement on pricing of OEM Products
--------------------------------------------
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The Parties shall negotiate in good faith to reach agreement upon the
pricing for OEM Products within 90 days of the Effective Date, taking into
consideration that HP shall be granted most favored nation status on
pricing of all OEM Products and will also be granted volume discounts. To
allow HP to confirm that it is being afforded such status, Indigo will,
upon request by HP, provide to an independent third party auditor
designated by HP and approved by Indigo (acting reasonably) copies of
Indigo's price lists and OEM discounts for all OEM Products.
8.2 Further considerations
------------------------------
In addition to the most favored nation status granted under section 8.1, the
Parties shall also conduct formal quarterly reviews of OEM-related matters,
which may include price adjustments to reflect any HP contribution to the
reduction of Indigo's manufacturing costs, whether by cost reduction efforts or
by the incorporation of HP-provided components (such as formatter boards).
8.3 Payment terms
---------------------
HP shall be entitled to pay invoices 30 days following receipt of such
invoices, which may be issued upon shipment of products by Indigo. However, if
at any time Indigo makes more favorable payment terms available to any other
OEM customer of any of its products for comparable quantities and other
commercial terms, it shall immediately make such payment terms available to HP.
Any payment terms inconsistent with this section 8.3 may be implemented only by
agreement between the parties.
8.4 Method and Place of Payment
-----------------------------------
All payments under this Agreement shall be effected by means of a bank wire
transfer to a bank account designated by Indigo. Indigo may change the bank
account into which it requires HP to make payments by giving HP not less than
60 days prior notice in writing.
8.5 Ex-Works/Net Prices
---------------------------
All prices for the OEM Products are ex-works, Indigo's Israel subsidiary's
premises. All payments hereunder shall be effected in U.S. dollars, net, free
of any withholding or other taxes, levies, duties, imposts, charges, or
deductions of any nature whatsoever.
8.6 Customs
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Upon HP's request Indigo will provide HP with an appropriate certification
stating the country of origin for OEM Products sufficient to satisfy the
requirements of the customs authorities of the country of receipt and any
applicable export licensing regulations, including those of the United States.
Indigo will ▇▇▇▇ each OEM Product, or the container if there is no room on the
OEM Product, with the country of origin. Indigo will, in marking OEM Products,
comply with the requirements, as specified by HP, of the customs authorities of
the country of receipt. If OEM Products delivered under this Agreement are
imported, Indigo will when possible allow HP to be the importer of record. If
HP is not the importer of record and Indigo obtains duty drawback rights to OEM
products, Indigo will, upon HP's request, provide HP with documents required by
the customs authorities of the country of receipt to prove importation and to
transfer duty drawback rights to HP.
9. Branding and advertising
9.1 OEM Products
---------------------
All OEM Products distributed by HP shall be branded solely by HP in its
discretion without the need to include any branding of or reference to Indigo,
but HP reserves the right to use Indigo branding at any time in its discretion.
HP shall likewise be entitled to market and promote the OEM Products without
any reference to Indigo.
9.2 Consumables and Spare Parts
------------------------------------
Indigo shall ▇▇▇▇ the packaging of OEM Consumables and OEM Spare Parts with
HP-designated branding. In the event that HP's volume requirements of such
HP-branded OEM Products does not justify the expense of such custom-branding,
prices will be adjusted by prior agreement in writing.
10. Responsibilities
10.1 Responsibilities
-------------------------
In addition to its other undertakings hereunder, each Party shall:
10.1.1 Maintain staff. Maintain a staff of well-trained professional
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personnel capable of carrying out all of the Party's obligations under
this Agreement.
10.1.2 Not pledge credit. Refrain from taking any action that, in any
------------------------
way, may be binding upon the other Party or may pledge the other
Party's credit, unless so authorized by that Party in writing.
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10.1.3 Customer agreements. In the case of HP only, enter into
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agreements with HP Customers on terms that protect Indigo and its
third-party suppliers from copyright and other Intellectual Property
infringements to no lesser an extent than similar agreements HP
requires its OEMs to enter into with their customers.
10.1.4 Markings. In the case of HP only, attach or insert such
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markings and information on the OEM Products as Indigo shall
reasonably request in order to protect Indigo's rights in and to its
patents and copyrights, provided such markings do not in any way
dilute the value or impact of HP's own branding of the OEM Products.
11. Intellectual Property
11.1 Warranty
----------------
Indigo warrants that it owns or has the unrestricted right to exploit all
Intellectual Property embodied in any of the OEM Products and that the sale of
the OEM Products by HP or its distributors and the proper use of the OEM
Products by HP Customers will not infringe the rights to any Intellectual
Property of a third party. This warranty does not extend to any HP Improvements
(as defined below) to OEM Products.
11.2 Indemnity
-----------------
Indigo shall indemnify HP and shall hold HP harmless, from and against any and
all losses, costs and damages, however arising, relating to any claim by a third
party that the offer for sale, sale, importation, licensing or leasing or use of
any OEM Product infringes rights of any such third parties to any Intellectual
Property. Indigo hereby agrees to defend any suit or proceeding brought against
HP by any such third party, provided that Indigo is notified promptly in writing
of such suit or proceeding, and provided further that Indigo shall receive (i)
full and complete authority to conduct the defense of such suit or proceeding,
including its possible settlement, HP hereby agreeing to any such settlement
effected by Indigo (other than any settlement requiring HP to accept liability
or pay any money or which could result in HP being in breach of any agreement or
arrangement with a third party, which HP may decline to accept in its absolute
discretion and without in anyway affecting Indigo's obligations under the
indemnity set forth in this section 11.2), (ii) at Indigo's sole cost all
information that HP may have and that may be pertinent to said defense and (iii)
at Indigo's sole cost HP's full cooperation and assistance in conducting said
defense. In addition to providing such defense, Indigo shall pay all damages and
costs awarded therein against HP, provided that HP has given Indigo the
authority, information and assistance required of it hereunder with respect to
such defense.
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Anything herein to the contrary notwithstanding, in no event shall Indigo have
any liability or responsibility to any Party whatsoever under this section 11.2
if the alleged or proven infringement would not have occurred but for (x) any
misuse and/or misapplication of the OEM Product, (y) any modification of and/or
addition to such OEM Product by HP, its distributors, or customers (including,
without limitation, the addition of a front-end product) and/or (z) the
combining by HP, its distributors or customers of the OEM Product with any other
product, system, or sub-system (including, without limitation, integration with
a front-end product). In the event that any OEM Product shall be held to be
infringing and its offer for sale, sale, importation, licensing or leasing, or
use enjoined, Indigo shall, at its own expense, procure for HP and its
distributors the right to continue to offer for sale, sell, import, license or
lease such infringing OEM Product, and for HP's customers the right to use such
infringing OEM Products and redesign any OEM Product held to be infringing as
aforesaid so that it becomes non-infringing.
11.3 Improvements
--------------------
HP shall have the right to make enhancements, modifications, and improvements to
OEM Products ("Improvements"). HP shall own all Intellectual Property rights in
Improvements made by HP to OEM products. HP shall make products embodying such
Improvements available to Indigo on reasonable commercial terms, or, at HP's
election, HP shall grant Indigo a non-exclusive, royalty bearing (at a
reasonable rate to be negotiated between the Parties in good faith) license in
the Intellectual Property rights in such Improvements for the term of this
Agreement.
11.4 Trademarks
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Each of the Parties acknowledges the other's exclusive ownership of its
trademarks, and declares that neither Party shall acquire rights in the other's
trademarks by virtue of anything contained in this Agreement. Each Party agrees
not to file applications for registration of trademarks that are the same or
similar to the other Party's trademarks nor to challenge the exclusive rights of
the other in such trademarks.
12. Liability
12.1 Limitation of Liability
-------------------------------
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, LOSS OF ANTICIPATED BUSINESS, LOSS OF DATA, OR
BUSINESS LOSSES), HOWEVER CAUSED AND BASED UPON ANY THEORY OF LIABILITY, ARISING
OUT OF THIS AGREEMENT, AND
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WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CLAIM OF
DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT IN AN AGGREGATE AMOUNT IN EXCESS OF
$500,000 PER CLAIM, OTHER THAN IN RELATION TO CLAIMS BY HP ARISING UNDER SECTION
11.2 OR CLAIMS ARISING AS A RESULT OF A BREACH OF CONFIDENTIALITY IN
CONTRAVENTION OF SECTION 18.1, IN RELATION TO WHICH LIABILITY SHALL BE
UNLIMITED.
13. Product Warranty
13.1 Warranty
----------------
Indigo warrants each OEM Printer and each OEM Spare Part against defects arising
from faulty materials or workmanship, provided that (a) the defect arises during
the Warranty Period and Indigo has received written notice of the defective item
not later than a reasonable period (not to exceed 30 days) after the end of the
Warranty Period (defined below), and (b) such item has been, stored, shipped,
installed, operated and maintained in accordance with the then current
recommendations set forth in Indigo's manual and/or other written instructions
and has not been modified without Indigo's prior written approval, where such
modification substantially and materially causes the defect.
13.2 Warranty Period
-----------------------
The warranty period (the "Warranty Period") with respect to each OEM Printer and
each OEM Spare Part shall commence on the date title thereto passes to HP and
shall end three months following receipt thereof by HP or HP's designee
(distributor or an HP Customer, as the case may be).
13.3 Defects
---------------
Should any part of an OEM Printer or OEM Spare Part be found to be defective
prior to the expiration of the Warranty Period due to Indigo's faulty materials
or workmanship, Indigo undertakes, at its expense, to do all things necessary to
repair or replace (at Indigo's sole option) such part and to return the
repaired/replacement part to HP within 30 days of receiving the defective part.
The provisions of this warranty shall apply to the repaired/replacement part for
the unexpired portion, if any, of the Warranty Period. For the sake of clarity,
all costs incurred by HP and/or its customer in the disassembly and reassembly
of the OEM Printers or OEM Spare Part (as the case may be), and/or in the
removal of an allegedly defective part therefrom, and/or in the incorporation of
a repaired or replacement part therein, shall
16
be borne solely by HP/such customer (as the case may be). All repairable parts
shall be shipped to Indigo by HP and treated in accordance with Indigo's "Repair
Parts Policy," a copy of which is attached as Exhibit "A."
13.4 Consumables Warranty
----------------------------
Consumables that, upon receipt by an HP Customer, are found to be defective and
unusable (Dud on Arrival or "DOA"), and which are promptly returned to Indigo by
HP, will be replaced by Indigo at no charge to HP. No warranty is provided for
the performance or yield of any Consumables. Solely for purposes of this
paragraph, those parts that are routinely replaced by the OEM Printer operator
(defined by Indigo as Operator Maintenance Parts (OMPs)) shall be deemed to be
Consumables.
13.5 Exclusion of other warranties
-------------------------------------
OTHER THAN AS SET FORTH IN THIS SECTION 13 AND SECTIONS 11 (INTELLECTUAL
PROPERTY) AND 14 (GENERAL REPRESENTATIONS AND WARRANTIES), INDIGO MAKES NO
WARRANTIES, LIABILITIES OR GUARANTEES, EXPRESS OR IMPLIED (INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER
PATENT WARRANTIES), OF ANY NATURE WHATSOEVER WITH RESPECT TO THE OEM PRODUCTS OR
ANY PART THEREOF DELIVERED HEREUNDER AND/OR WITH RESPECT TO ANY NONCONFORMANCE
OR DEFECT IN ANY SUCH OEM PRODUCT AND/OR PART THEREOF DELIVERED HEREUNDER. THERE
IS NO WARRANTY COVERING DAMAGE TO THE OEM PRODUCTS OR ANY PART THEREOF RESULTING
FROM NORMAL WEAR AND TEAR.
13.6 Notice to Customers
---------------------------
In any sale by HP of OEM Products to HP Customers, HP shall not misrepresent the
extent of the Indigo warranty set forth in section 13.5. In addition, HP shall,
upon request, provide Indigo with a copy of the standard warranty, if any, it
makes to HP Customers regarding OEM Products.
14. General Representations and Warranties of the Parties
-------------------------------------------------------------
Indigo hereby makes, for the purposes of this Agreement and for the benefit of
HP, the representations and warranties set forth in sections 3.1, 3.3, 3.5, and
3.17 (to the extent applicable to the OEM Products) of the Stock Purchase
Agreement, and those representations and warranties are hereby incorporated by
reference into this Agreement. In addition, each Party hereby represents and
warrants:
17
14.1 it is a corporation duly organized, validly existing and in good
----
standing under the laws of the jurisdiction of its organization;
14.2 the execution, delivery and performance of this Agreement have been duly
----
authorized by such Party;
14.3 it has all requisite authority and ability to enter into and perform
----
under this Agreement, including granting the licenses granted hereunder; and
14.4 its performance under this Agreement will not materially violate any
----
agreement with or obligation to, or require the consent of, any third party.
15. Term and Termination
15.1 Term
------------
Subject to section 15.2, this Agreement shall commence on the Effective Date and
continue in force until December 31, 2003, unless earlier terminated by either
Party.
15.2 Termination for convenience
-----------------------------------
This Agreement shall automatically be extended for additional three year periods
beyond December 31, 2003 unless HP gives Indigo not less than 90 days notice of
termination, which HP shall have the right to do at any time without cause and
without penalty provided such notice expires after December 31, 2003.
15.3 Termination for breach
------------------------------
A Party shall have the right to immediately terminate this Agreement if:
15.3.1 the other Party breaches a provision of this Agreement and
------
fails to cure such breach within 60 days of receipt of notice from the
other Party identifying the breach and requesting that it be cured;
15.3.2 the other Party is the subject of an Insolvency Event.
------
15.4 Termination consequences
--------------------------------
If HP validly terminates this Agreement, Indigo shall if requested by HP:
15.4.1 supply OEM Products the subject of a binding purchase order as
------
at the date of such termination;
18
15.4.2 continue to supply OEM Consumables and OEM Spare Parts to HP
------
for supply to HP Customers; and
15.4.3 continue to supply Services to HP for up to a period of 12
------
months, unless the provision of Services is the subject of a separate
agreement between the Parties in which case such Services shall be
provided in accordance with that agreement.
15.5 Survival
----------------
Sections 5, 8.1, 11, 12, 13, 14 and 18 shall survive termination or expiry of
this Agreement.
16. Communications Program
16.1 Scope
-------------
HP shall lead the development and execution of a comprehensive communications
program ("Communications Program") based on this Agreement and the Parties'
other Agreements of even date. Key elements of the program shall include:
16.1.1 publicly promoting the strategic alliance, with involvement of
------
the senior management team of both Indigo and HP
16.1.2 subsequent announcements of the rollout of each element of the
------
Agreements
16.1.3 "vertical" public relations campaign, focused on the future of
------
the technology as key to the commercial printing transformation
16.1.4 prominent inclusion of Indigo in the "rolling thunder"
------
communications strategy for HP's commercial printing initiative.
16.1.5 Indigo may refer to itself as "an HP affiliated company" and HP
------
may refer to itself as "a Indigo affiliated company." Neither Party
shall make any representations which a reasonable person could
interpret and indicating that the Parties have entered into any form of
partnership or that one Party is the agent of the other Party.
16.2 Future communications
------------------------------
19
Subject to section 16.1.5, all references to HP by Indigo and public
communications of any sort by Indigo concerning HP shall be pre-approved in
writing by HP until such time as the Communications Program has been agreed
between the Parties. After the Communication Program has been so agreed, all
such references and communications shall be made in accordance with the
Communications Program.
17. DIW Service
HP shall work with Indigo as the preferred "digital production color printing
appliance" partner in the rollout of the DIW and shall work with Indigo on
details of the DIW architecture, and early "developer kits" for the DIW.
18 General
18.1 Confidentiality.
-----------------------
18.1.1 Definition of Confidential Information. "Confidential
---------------------------------------------
Information" means all information disclosed by a Party ("Disclosing
Party") to the other Party ("Receiving Party") pursuant to, or in
connection with, this Agreement, including any information disclosed
prior to or in contemplation of this Agreement prior to the Effective
Date, regardless of the form or manner of disclosure. "Confidential
Information" shall not include information: (a) of which the Receiving
Party was rightfully in possession prior to disclosure, as evidenced by
appropriate documentation; (b) that was independently developed by
employees or agents of the Receiving Party who have not received any
Confidential Information provided by the Disclosing Party; (c) that the
Receiving Party rightfully receives from a third party not owing a duty
of confidentiality to the Disclosing Party; (d) that is or becomes
publicly available without fault of the Receiving Party; (e) that is
published incident to patent application prosecution; or (f) that the
Parties agree in writing will not be treated as Confidential
Information. Notwithstanding subsection (e), neither Party shall
include Confidential Information of the other Party in any patent
application without the prior written consent of the other Party, such
consent not to be unreasonably withheld.
18.1.2 Identification as Confidential. Information of the Disclosing
-------------------------------------
Party shall be deemed Confidential Information if (i) disclosed in
writing, the information is marked by an appropriate legend, such as
"HP Confidential" or "Indigo Confidential," or (ii) disclosed orally or
visually, the information is designated (orally or in writing)
contemporaneously or promptly thereafter, as "HP Confidential" or
"Indigo Confidential," or (iii) the disclosure in any
20
form (visually, orally, or in writing), by its very nature would reasonably be
understood to be confidential.
18.1.3 Confidentiality Obligations. The Receiving Party shall hold the
----------------------------------
Confidential Information of the Disclosing Party in confidence, using such
measures as the Receiving Party uses to protect the confidentiality of its own
confidential information of like importance, but in no event using less than
reasonable care. The Receiving Party shall not make any disclosure of such
Confidential Information other than to its employees and consultants on a
need-to-know basis. The Receiving Party shall inform each such employee and
consultant of the Receiving Party's confidentiality obligations under this
Agreement and will require each such person to sign an appropriate nondisclosure
agreement. The Receiving Party shall be liable for any breach of this section
18.1.3 by any of its employees or consultants acting within the scope of their
authority. The Receiving Party shall use the Disclosing Party's Confidential
Information solely to perform the activities contemplated by this Agreement and
for no other purpose. The Receiving Party shall return the Disclosing Party's
tangible Confidential Information to the Disclosing Party promptly upon the
Disclosing Party's request or termination of this Agreement, whichever occurs
first, unless the Receiving Party has a continuing right under this Agreement to
use such Confidential Information. Nothing herein shall prevent assignment of
the Parties' employees or consultants to other projects.
18.1.4 Exceptions. Notwithstanding anything to the contrary in section 18.1.3,
-----------------
disclosure of Confidential Information shall be permitted to the extent required
by order of a court or governmental authority, provided that the Disclosing
Party has been given timely notice of such requirement and that the Receiving
Party must cooperate with the Disclosing Party to limit the scope and effect of
such order.
18.1.5 Residual Information. Access to Confidential Information hereunder shall
---------------------------
not preclude an individual who has seen or been exposed to such Confidential
Information for the purposes of this Agreement from working on future projects
for the Receiving Party which are not prohibited hereunder and which relate to
similar subject matters, provided that such individual does not make reference
to any document or other tangible media containing the Confidential Information.
Furthermore, nothing contained herein shall be construed as imposing any
restriction on the Receiving Party's disclosure or use of any general learning,
skills, or know-how developed by the Receiving Party's personnel under this
Agreement, if such disclosure and use would be regarded by a person of ordinary
skill in the relevant area as not constituting a disclosure or use of the
Confidential Information.
21
18.1.6 Injunctive Relief. Each Party acknowledges and agrees that the
------------------------
other Party would suffer irreparable harm for which monetary damages
would be an inadequate remedy if there were a breach of obligations
under this section 18.1.6. Each Party further acknowledges and agrees
that equitable relief. including injunctive relief, would be
appropriate to protect the other Party's rights and interests if such a
breach were to arise, were threatened, or were asserted.
18.2 Publicity. So long as this Agreement is in effect, no Party or any of its
--------------
Affiliates shall issue or cause the publication of any press release or other
announcement with respect to the terms or implementation of this Agreement
without the prior consultation and approval of the other Party, except as may be
required by law; provided that such approval shall not be unreasonably withheld.
Any such publicity made in accordance with the terms of a joint communications
program shall not require approval under this section 18.2.
18.3 Assignment. Neither Party may assign any of its rights and/or obligations
---------------
hereunder (except to an Affiliate), whether by operation of law or otherwise,
without the prior written consent of the other Party, which consent shall not be
unreasonably withheld. Any assignment made in contravention of this section 18.3
shall be void. This Agreement shall inure to the benefit of and be binding upon
the Parties and their respective administrators, permitted successors and
permitted assigns.
18.4 Notices. Any notice, request, consent, approval, or communication
------------
(collectively a "Notice") under this Agreement shall be effective only if it is
in writing and (i) personally delivered, (ii) sent by certified or registered
mail, return receipt requested, postage prepaid (iii) sent by a nationally
recognized overnight delivery service, with delivery confirmed, or (iv) sent by
facsimile, with receipt confirmed, addressed as follows:
(a) if to HP, to
HP
Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇ ▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Address:
22
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇-▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Development Portfolio Manager
Telephone: (650) ▇▇▇-▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Indigo, to
Indigo
Address:
Attention:
Telephone:
Facsimile:
with a copy to:
Chadboume & ▇▇▇▇▇ LLP
Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Dermis ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other persons or addresses as shall be furnished by Notice by a Party to
the other Party. A Notice shall be deemed to have been given as of the date when
(i) personally delivered, (ii) ten (10) days after properly addressed and mailed
as aforesaid, (iii) the next day when delivered during business hours to said
overnight delivery service properly addressed, or (iv) when receipt of the
facsimile is confirmed, as the case may be, unless the sending Party has actual
knowledge that a Notice was not received by the intended recipient. All Notices
shall specifically state: (i) the provision or provisions, if any, of this
Agreement with respect to which
23
such Notice is given; and (ii) the relevant time period, if any, in which the
Party given such Notice must respond.
18.5 Amendments. The terms and provisions of this Agreement may not be
------------------
modified or amended without the written consent of each Party.
18.6 Severability. Every provision of this Agreement is intended to be
--------------------
severable. If any term or provision hereof is held by a court of competent
jurisdiction or regulatory authority to be illegal or invalid for any reason
whatsoever, the Parties agree to negotiate in good faith a next best alternative
term or provision, as the case may be, that retains the parties' original intent
to the greatest extent possible. If the Parties are unable to negotiate such
term or provision, the original term or provision shall be enforced to the
maximum extent permitted by law, and, in any event, such illegality or
invalidity shall not affect the validity of the remainder of the Agreement, or
the validity of such tern or provision in other jurisdictions.
18.7 Non-Waiver. No provision of this Agreement shall be deemed to have been
------------------
waived except if the giving of such waiver is contained in a written Notice
given to the Party claiming such waiver and no such waiver shall be deemed to be
a waiver of any other or further obligation or liability of the Party in whose
favor the waiver was given.
18.8 No Partnership. Nothing contained in this Agreement shall be deemed or
----------------------
construed to make the Parties partners or joint venturers with each other.
18.9 Third-Party Beneficiaries. This Agreement is intended to benefit the
---------------------------------
Parties and their respective permitted successors and permitted assigns and
shall not confer upon any other Person any rights or remedies.
18.10 Entirety of Agreement; Relation to Related Agreements. In connection
-------------------------------------------------------------
with this Agreement, it is contemplated that the Jericho Co-development
Agreement and the Stock Purchase Agreement (collectively "Related Agreements")
shall be executed. This Agreement, together with the Related Agreements,
constitutes the entire agreement between the Parties with respect to the subject
matter hereof, and supersedes all prior drafts of the Agreement and all other
agreements between the Parties, express or implied, written or oral, including
specifically but not limited to the Strategic Mfiliation Agreement referred to
in the recitals and all Confidentiality Agreements between the Parties prior to
the Effective Date.
18.11 Construction. As used in this Agreement, all terms used in the singular
---------------------
will be deemed to include the plural, and vice versa, as the context may
require. The words "hereof," "herein," and "hereunder" refer to this Agreement
as a whole, including the attached exhibits, as the same may from time to time
be amended or
24
supplemented. and not to any subdivision in this Agreement. When used in this
Agreement. "including" means "including, without limitation." Unless otherwise
expressly stated, when a Party's approval or consent is required under this
Agreement, such Party may grant or withhold its approval or consent in its
discretion. References to "section" or "Exhibit" shall be to the applicable
section or exhibit of this Agreement. This Agreement has been negotiated by the
Parties and reviewed by their respective counsel and shall be fairly interpreted
in accordance with its terms and without any strict construction in favor of or
against either Party.
18.12 Headings. The headings of the sections of this Agreement are inserted for
--------------
convenience only and shall not be deemed to constitute a part hereof.
18.13 Counterparts. This Agreement may be executed in any number of
------------------
counterparts, each of which shall be considered an original.
18.14 Indemnity.
---------------
18.14.1 Subject to section 18.14.2, each Party ("Indemnifying Party")
-------
shall defend, indemnify, and hold harmless the other Party and its
officers, directors, agents, and representatives (collectively
"Indemnified Parties") from and against, and will solely and
exclusively bear and pay, any and all claims, suits, losses, penalties,
damages and all liabilities ("Claims") and the associated costs and
expenses (including attorneys' fees, experts' fees, and costs of
investigation), caused in whole or in part by, (i) its breach of any
representation, warranty, covenant, term, or provision of this
Agreement; (ii) any negligent, grossly negligent, or intentional acts,
errors, or omissions by it or its employees, officers, agents, or
representatives in the performance of this Agreement; or (iii) a
product liability claim asserted against HP by any Person in respect of
any OEM Product under any theory of liability.
18.14.2 The Indemnified Party shall promptly notify the Indemnifying
-------
Party of any Claim. No failure of an Indemnified Party to so notify the
Indemnifying Party shall relieve the Indemnifying Party from the
obligation to indemnify the Indemnified Party unless and to the extent
the Indemnifying Party is actually prejudiced by such failure. The
Indemnifying Party shall have control of the defense, litigation, and,
subject to the conditions set forth below, settlement of
any Claims. The Indemnified Party shall have the right, but not the
obligation, to select counsel of their choice, at their expense, to
participate in the defense of such third party claims provided however
that the Indemnifying party shall not accept a settlement of any such
third party claim without the prior written consent of the Indemnified
Party, which consent shall not be unreasonably withheld.
25
IN WITNESS WHEREOF, the Parties have signed this Agreement, through their
duly authorized representatives, on the date first set forth hereinabove.
INDIGO N.V. HEWLETT-PACKARD COMPANY
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Signed by:
-------------------------- -----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name:
------------------------------- ----------------------------
Title: Chairman and CEO Title:
------------------------------ ---------------------------
IN WITNESS WHEREOF, the Parties have signed this Agreement, through their
duly authorized representatives, on the date first set forth hereinabove.
INDIGO N.V. HEWLETT-PACKARD COMPANY
Signed by: Signed by: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------- --------------------------
Name: Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------- -------------------------------
Title: Title: VP, GM
------------------------- ------------------------------
Laserjet Business Printing
Exhibit "A"
Repair Parts Policy
1. Spare Parts Under Warranty
With the exception of OMP and disposable parts (as described in 3 below),
all damaged parts under warranty receive a 100% credit. All damaged parts
under warranty that are repairable must be returned to Israel, freight
collect, as soon as possible. All replacement parts under warranty will be
shipped to the OEM distributor, freight collect, as no charge warranty
replacements. If a damaged part, for which a replacement has been supplied
at no charge, is not returned within 60 days of the receipt of the Return
Material Authorization ("RMA") number, Tiger will issue to the OEM
distributor an invoice for the replacement part.
The return procedure for warranty parts is as follows:
a. The OEM distributor will send Tiger a list of damaged parts that it
seeks to return.
b. Each reference to a part will specify the part number, part description,
the serial number of system from which it was removed, and the
installation date of such system.
C. Tiger Sales Administration will verify the validity of the list of
damaged parts and issue an RMA number, specifying the items to be
returned. Items not appearing on this list will be discarded, at the
customer's site, by the OEM distributor.
d. The OEM distributor will arrange for shipment of the returned parts to
Tiger, pursuant to the instructions of Tiger Sales Administration.
2. Spare Parts Not Under Warranty
There are four credit categories for repairable parts: 35%, 40%, 60% and
75% of the OEM distributor discounted price, reflecting Tiger's cost to
repair the parts.
Upon the return of the repairable part to Israel, Tiger will issue a credit
note to the OEM distributor based on the credit category of the item.
Any part that is not in one of the above categories is "non-returnable" and
should be disposed of at the customer's site. The OEM distributor will then
order a new part at the OEM distributor discounted price, in accordance
with the regular procedure for the ordering of spare parts.
Please Note: The repairable parts list is revised from time to time, and
these revisions will be furnished periodically to the OEM distributor.
The return procedure for non-warranty parts is as follows:
a. The OEM distributor will send to Tiger a list of damaged parts it would
like to return for repair. All such parts must appear on the repairable
parts lists.
b. Each reference to a part will specify the part number and part
description.
c. Tiger Sales Administration will verify the list accuracy and issue an
RMA number, specifying the items to be returned.
d. The OEM distributor will order new parts, in accordance with the then
current Transfer Price List, in place of the damaged parts, without
waiting for the credit for the returned parts.
e. The OEM distributor will arrange the shipment of the returned parts to
Tiger, pursuant to the instructions of Tiger Sales Administration.
f. Upon Tiger's receipt in Israel of the damaged parts, Tiger Sales
Administration will prepare a credit note, which it will then submit to
Tiger's Finance Department for approval.
g. Tiger's Finance Department will review and (if appropriate) approve such
credit note, and will effect the appropriate payment to the OEM
distributor.
3. Operator Maintenance Parts (OMP) & Disposable Parts
Customers will not receive any refund with respect to OMPs and disposable
parts, whether or not the printer is under warranty. The OEM distributor
will not include these parts in its warranty requests/orders. Rather, the
OEM distributor will issue standard purchase orders for these parts at the
then current OEM distributor discounted price.
2
An exception to the above is as follows: Parts that, upon receipt, are
proven to be defective and unusable ("Dud On Arrival" or "DOA"), will be
replaced at no charge. Replacement orders for DOA parts will be issued
under separate cover and must be approved by an authorized Tiger FSE. No
charge replacements will be supplied after receipt of rejected parts, and
their evaluation by Tiger's Q.C. Dept.
4. Shipping Charges
* Parts under Warranty
- Returned goods will be returned freight collect
- No charge warranty replacements will be supplied freight collect.
* Parts not under Warranty
- Shipping charges will be borne by the OEM distributor. When the OEM
distributor requests delivery by courier, the OEM distributor must
provide Tiger with its FedEx, DHL or UPS account number. Otherwise
all goods will be sent air, freight collect.
* Shipping instructions for returned goods are set forth in Attachment 1
hereto.
3
[LOGO] Indigo
Attachment 1 To Exhibit " "
SHIPPING INSTRUCTIONS FOR RETURNED GOODS
(International Shipments)
Please use return authorization number__________ for this return.
Display this return authorization number prominently on the exterior of the
shipping container.
Description of goods returned: (Important: If the return has a serial number,
please indicate it in appropriate place - see next page).
Ship via: [_] Air Mail, E.M.S.
[_] Courier - Federal Express
[_] Air Freight
[_] Sea Freight
[_] Our Forwarder: ▇▇▇▇▇ Companies (Consignee)
Terms: Freight Collect/Prepaid
[_] Other_________________________________________
Please provide 2 copies of a commercial invoice with the shipment.
On the invoice, the following should be indicated:
[_] Returned goods for repair or replacement. No commercial value. Value for
Customs purposes only (indicate the value of the goods in the shipment in
U.S. Dollars).
Next to each item, the original Tiger export invoice number must be
indicated.
Please advise Tiger's Import/Export Dept. (Mr. Barlevi) of shipment details by
fax - ▇▇▇-▇-▇▇▇-▇▇▇▇ (MAWB, HAWB, number of pieces, weight, route and dates and
send copy of the invoice). Upon issuance of the invoice for the return, please
fax same to the above-referenced name and fax number.
4
Hewlett-Packard Company (HP) and Indigo N.V. have previously executed an OEM
Agreement dated September 13, 2000. This document is an Addendum to that
Agreement
1.1. Under the OEM Agreement, HP had committed to purchase thirty-five (35)
6600 units (Series 1 engine, Turbostream-based) during Q4/2001. The price
per product for the Series 1 engine is: $140,000 for the base units and
$10,000 for each additional color.
1.2. In place of the above, which would have resulted a total price of
about US$ 5.25 million in Q4/2001, HP will now purchase from Indigo the
following products in Q4/2001, at the following prices:
--------------------------------------------------------------------
Eleven (11) UltraStream presses $395,000 per unit
--------------------------------------------------------------------
One (1) MultiStream press $225,000 per unit
--------------------------------------------------------------------
One (1) WebStream 50 press $240,000 per unit
--------------------------------------------------------------------
Consumable products $200,000 in total
--------------------------------------------------------------------
1.3. HP understands that all these products will be identical to the
standard Indigo product offering of the same product and will not have
unique consumables.
Except as otherwise specifically provided in this Addendum or in other written
agreements between the parties, all terms and conditions of the OEM Agreement
shall remain in full force and effect.
It is so agreed.
INDIGO N.V. HEWLETT-PACKARD COMPANY
Signed By: /s/ Rafi Maor Signed By: /s/ ▇▇▇ ▇▇▇▇▇
----------------------- -------------------------
Name: Rafi Maor Name: ▇▇▇ ▇▇▇▇▇
---------------------------- ------------------------------
Title: President & CEO Title: Controller, Digital
--------------------------- Publishing Solutions
-----------------------------
Date: December 17, 2001 Date: November 26, 2001
---------------------------- ------------------------------
HP Confidential 1 Addendum to OEM Agreement-Draft