EXHIBIT 10.3
SCITEX DIGITAL PRINTING, INC.
DISTRIBUTOR/RESELLER PURCHASE AGREEMENT
This Agreement is made and entered into this 6th day of October, 1998
("Effective Date") by and between Scitex Digital Printing, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ( "Distributor" hereafter "Buyer"), and Research,
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereafter
"Seller").
I. AGREEMENT
1.01 Appointment. Seller develops and manufactures dryers and system
integration elements (hereafter "Products") for integration with
Buyer's ink jet printing equipment (hereafter "Equipment"). Seller
authorizes Buyer to purchase, inventory, promote, market and resell
Products as described in Exhibits A and B. The Products listed in
Exhibits A and B are intended to include all the Research, Inc.
products to be sold with Scitex Digital Printing, Inc. equipment. This
list will be amended from time to time. Products that are not
specifically listed, but that are a part of the Research, Inc. product
offering intended for use with Scitex equipment, are considered to be a
part of Exhibits A and B. Combination of Products and Equipment shall
be hereafter referred to as "System". Buyer hereby accepts this
appointment subject to the terms and conditions of this Agreement,
including those terms, conditions, limitations and procedures set out
in the exhibits which are an integral part of this Agreement.
1.02 Buyer's Rights. Seller agrees to grant Buyer exclusive, world-wide
rights to buy the Products in Exhibit A, and non-exclusive, world-wide
rights to buy the products in Exhibit B, when used with Buyer's
Equipment.
Buyer retains all rights to Equipment and to technical data and
information relating to Equipment, whether patentable or not, arising
out of or evolving as a result of Seller rendering engineering services
to Equipment and designing Products for Buyer's use. Seller agrees not
to enforce against Buyer or customers of Buyer any patent rights the
scope of which includes a system utilizing Products delivered hereunder
by Seller and which relates to an invention made by or for Buyer on a
date subsequent to the date of Buyer's offer hereunder.
Seller will not sell Products in Exhibit A for connection to any of
Buyer's equipment without the prior written consent of Buyer.
1.03 Distributor Definition. Buyer certifies that it will purchase Products
to integrate with its Equipment to make a System for resale
to its customers, or to upgrade products of Seller, previously
purchased by Buyer's customers.
1.04 Right to Appoint Resellers. Buyer shall have the right to appoint
resellers within the Territory provided that each reseller be bound by
the following terms and conditions:
That the reseller be limited to a specified territory; that the
reseller be limited to sales to end users under the applicable terms
and conditions of this Agreement. Buyer agrees to exercise prudent
business management to ensure that each reseller acts in accordance
with the terms and conditions of its agreement with Seller.
II. BUYER'S DUTIES
2.01 Equipment for Developmental Use. Buyer may from time to time provide
Equipment to Seller for Seller's use in developing and testing new
Products for use with Buyer's Equipment. Buyer will support such
Equipment, as described in Exhibit D, at Seller's site. Such Equipment
shall be provided for developmental use only by Seller. Buyer shall
retain all rights to such Equipment.
2.02 Beta Tests. Any new Products developed by Seller may be installed in at
least one Beta site to test the use of System in a live customer
environment.
2.03 Sale of Beta Test Systems. Should Beta Test result in purchase of
System, Seller will be reimbursed for Products and the terms and
conditions of sale for Systems will be the responsibility of Buyer.
2.04 Forecasts. See Exhibit F.
III. SELLER'S RIGHTS, DUTIES AND SUPPORT TO BUYER
3.01 Qualification Tests. Seller will perform qualification testing as
required by Buyer and defined in Exhibit E.
3.02 Beta Tests. Seller, with Buyer's assistance, shall install and support
Products at customer sites during Beta Tests under the terms and
conditions of a separate Beta Test Agreement which will be mutually
agreed to by Buyer and Seller.
3.03 Sales Training. Seller will provide sales training on new Products to
Buyer on or around the time of delivery of such new Products. Seller
will also provide continuing sales advisory assistance for special or
custom applications.
3.04 Maintenance Support Services. Seller will provide maintenance services
to Buyer according to the provisions of Section VII of this Agreement.
3.05 Documentation. Seller will provide one copy each of Installation,
Operator's, and Maintenance Manuals with each unit shipped.
Additional copies of manuals may be purchased at the same discount
level Buyer receives on Products.
3.06 Finder's Fee. In the event Buyer agrees to allow Seller to sell
Products in Exhibit A directly to Buyer's distributors or customers,
Seller agrees to pay Buyer a Finder's Fee that will not exceed ten
percent (10%) of the sales price of the Products purchased by said
distributors or customers. The amount of the Finder's Fee will be
negotiated prior to the sale to distributors or customers.
3.07 Inventory. Seller will maintain inventory of Products and provide
direct shipment to Buyer's customers as directed by Buyer, according to
Exhibit F.
IV. PRICING AND PAYMENT
4.01 Pricing. Buyer will purchase Products at the discounts set forth in
Exhibit C. Discounts will be based upon Seller's published list prices.
List prices are understood to be the prices at which dryers are sold to
most end-users. Seller shall notify Buyer sixty (60) days in advance of
any price increase on Products. Prices shall not be increased more than
a maximum of five percent (5%) of aggregate Product price in any
12-month period.
4.02 Inventory Protection. Should Buyer elect to maintain inventory in the
future and in the event Seller puts into effect a general price
decrease for any standard Product, Seller will so notify Buyer and will
grant a corresponding retroactive price decrease on any such
unmodified, standard Seller's Product in Buyer's inventory (or in the
process of being shipped to Buyer), which had been shipped to Buyer by
Seller within ninety (90) days of the effective date of the price
decrease. Seller will grant such decrease by crediting Buyer's account
with an amount equal to the number of such Product times the difference
between the price each unit of Product was sold to Buyer for, less any
prior credits granted by Seller, and the new price of each such
Product. To obtain such retroactive price decrease Buyer must submit to
Seller, within 30 days of the effective date of the price decrease, an
inventory report itemizing all such Product received from Seller within
the subject 90-day period. Upon verification by Seller of the inventory
report, Buyer's account will be credited by Seller.
4.03 Payment. Buyer agrees to pay for Products per the following schedule:
Prompt payment discount of two percent (2%) 10 days or net 30
days from the date of invoice which shall be dated on or after
the date of shipment.
4.04 Taxes. Buyer shall pay any and all applicable sales, use or excise
taxes, or any other charges levied by federal, state, county, city or
other governmental authority relating to the purchase of Products.
Buyer will supply to Seller any appropriate tax exemption certificates.
Such taxes will be charged by Seller to Buyer until Buyer supplies
Seller with the appropriate exemption certificates. On shipments
outside of the United States, all required import
duties, licenses, taxes, and fees shall be payable by Buyer in addition
to stated prices.
V. PURCHASES BY BUYER
5.01 Purchase Orders. All purchases made under this Agreement will be
authorized only upon issuance of Buyer's written purchase order to
Seller which shall expressly reference this Agreement and shall
include: model number of Products to be purchased; quantity, routing
instructions; requested delivery schedule; destination; confirmation of
price; and purchase order number.
5.02 Use of Buyer's Purchase Order. In the event that Buyer uses its
standard purchase order form for orders, said orders, change orders or
notices will be governed by the terms and conditions of this Agreement,
and any term or condition set forth in such standard form which is
inconsistent with or in addition to the terms and conditions of this
Agreement shall have no force or effect.
5.03 Cancellation and Reschedule of Orders. Buyer may cancel or reschedule
any purchase order for Products according to Exhibit F.
VI. DELIVERY
6.01 Shipment. All shipments of Products to Buyer or Buyer's customer shall
be F.O.B. Seller's dock or distribution facility.
VII. MAINTENANCE SUPPORT SERVICES AND SPARE PARTS
7.01 Service By Buyer. Buyer will install Products and perform warranty
service.
Buyer will promptly report to Seller:
(a) Any complaint about, or customer requirements for, Products
that Buyer cannot immediately remedy or satisfy or finds
difficult to remedy or satisfy, and
(b) Any recurring complaint regarding Products, and
(c) All incidents that result in personal injury and/or property
damage involving Products.
7.02 Maintenance Training by Seller. Seller agrees to train Buyer's Service
Technician Trainer in the maintenance of Products to ensure that
Buyer's service representatives can then be trained to properly service
Products.
7.03 Service Support by Seller. Seller will provide service support on
Products for Buyer and/or Buyer's customers, when required, at Seller's
then-current service rates.
7.04 Spare Parts. Seller will make spare parts for Products and service
support (as defined in 7.04) available to Buyer for a period of seven
(7) years after final shipment of Product has ceased. Seller will also
provide Buyer with notification and the opportunity of a last-time buy
on such spare parts.
7.05 Spares Prices. Seller's prices for spare parts shall be in accordance
with its Spare Parts Price List in effect at the time of receipt of
Buyer's purchase order, less any applicable discounts.
VIII. WARRANTY
8.01. Warranty. Seller warrants to Buyer and the end-user that new Products
will perform according to Seller's written specifications and are free
of defects in materials and workmanship for a period of one year from
the date of installation. Replacement parts and accessories will be
warranted for a period of one year from the date of shipment except for
normally "expendable parts".
If a defect is discovered during the applicable warranty period, Buyer
will send Seller prompt written notice describing Product, including
the date and place of original purchase and installation, and the
problem. Seller will replace the defective part (except for normally
expendable parts) free of charge. Buyer will retain any part alleged to
be defective for sixty (60) days after notice for Seller's inspection
or, at Seller's request, will forward the part to Seller.
Buyer will return Product or part to Seller. Seller will pay shipping
charges incurred to return Product or part to Buyer.
IX. PRODUCT MODIFICATIONS AND DISCONTINUANCE
9.01 Modifications. Seller will obtain Buyer's written agreement prior to
making any modifications that affect form, fit or function of Products.
Buyer will notify Seller of any changes affecting mechanical or
electrical interface of Equipment to Products.
9.02 Product Discontinuance. Seller has the right to discontinue the
manufacture and supply of any Products effective one (1) year after
written notice of discontinuance to Buyer. If Seller discontinues
manufacture of any Product, Seller shall, at Buyer's request, provide
all documentation and drawings, and sell all manufacturing tooling to
Buyer, and provide Buyer the right to manufacture Products.
X. INDEMNITY
10.01 Patent Indemnity. Seller shall indemnify and defend Buyer and the
end-user against any claim or suit for alleged infringement of any
patent arising from the sale or use by Buyer of Products designed and
manufactured by Seller, provided that Buyer promptly notifies Seller of
the claim and authorizes Seller to control and/or conduct the defense
thereof. Should any such claim prove successful, Seller agrees to
assume responsibility for any judgment awarded by a court of last
resort or settlement cost consented to by Seller provided Buyer has
provided the notifications described above. In addition,
Seller shall attempt to negotiate feasible means to enable Buyer to
continue to purchase and use the same or equivalent Product, or, as a
last recourse, will take back the infringing Product and refund the
purchase price. If Buyer does not consent to such removal, Buyer shall
notify Seller thereof in writing and may continue using Product in
which event Buyer shall, at its expense, undertake the defense of any
action against Buyer and shall indemnify Seller in respect of any costs
or damages attributable to such continued use and Seller may
participate, at its expense, in the defense of any such action (against
Buyer). The foregoing sets forth the entire agreement of Seller for
patent indemnity.
XI. CONFIDENTIALITY
11.01 Information. Each party shall, for a five (5) year period following the
date of disclosure, hold as being confidential and proprietary to the
other party all technical and business information which has or will
come into the possession or knowledge of each about the other and which
has been designated in writing within thirty (30) days of disclosure as
confidential and proprietary. Such information may be disclosed to
others only with the prior written consent of the other party. Before
disclosing any confidential and proprietary information, the disclosing
party agrees to inform the other party of the nature of the information
to be disclosed, and the other party has the option of whether or not
to receive the confidential and proprietary information from the
disclosing party. After disclosure, the receiving party agrees not to
disclose the information to any other party, nor make use of the
information thereof other than for the performance of this Agreement.
Neither party shall be obligated to protect information designated as
confidential in the event such confidential information:
(1) as already known to such party at the time of the Effective
Date of this Agreement, (unless prior to the Effective Date of
the Agreement such information was designated as being
confidential), or
(2) was known or was generally available to the public at the time
of or subsequent to its disclosure hereunder, or
(3) becomes known or generally available to any third party due to
the willful conduct of the party so designating such
information as being confidential, or
(4) is disclosed to the recipient by a third party who is not in
default of any confidentiality obligation to the disclosing
party hereunder; or
(5) is developed by or on behalf of the receiving party, without
reliance on confidential information received hereunder.
XII. TERM RENEWAL AND TERMINATION
12.01 Term and Renewal. Subject to earlier termination pursuant to Paragraph
12.02, the term of this Agreement shall be for a period of
two years commencing on the Effective Date and continuing for
successive twelve-month periods thereafter unless either party receives
from the other, at least sixty (60) days prior to the end of the
current term, written notification of its intention not to renew for an
additional twelve-month period.
12.02 Termination for Cause. Either party may terminate this Agreement upon
written notice of termination to the other party for any of the events
given in 12.03 through 12.05.
12.03 Material Breach. The other party materially breaches this Agreement and
such breach remains uncured for thirty (30) days following written
notice specifying the breach from the terminating party unless the
other party has undertaken commercially reasonable steps to cure the
breach.
12.04 Delays. Any cause set forth in Section 13.03 which delays the other
party's performance for more than ninety (90) days.
12.05 Bankruptcy. A petition for relief under any bankruptcy legislation 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 for
all or a substantial part of the other party's assets, and such
petition, assignment or appointment is not dismissed or vacated within
thirty (30) days.
12.06 Effect of Termination or Expiration. In the event of any termination or
expiration of this Agreement:
(a) Neither party shall be liable to the other for any damage,
expenditures, loss of profits or prospective profits of any
kind or nature sustained or arising out of or alleged to have
arisen out of such termination or expiration. Termination or
expiration of this Agreement shall not, however, relieve or
release either party from making payments which may be owing
to the other party under the terms of this Agreement, or from
its obligations to perform any duties or take any action which
by the terms of this Agreement require performance subsequent
to such termination.
(b) Upon termination of this Agreement for any reason, Buyer
agrees to give Seller first right of refusal to purchase
Buyer's inventory of Products at terms to be mutually agreed
upon. Seller agrees to exercise this right to purchase
products within thirty (30) days of termination of the
Agreement.
XIII. GENERAL PROVISIONS
13.01 Notices. Any notice which may be or is required to be given under this
Agreement shall be written. All written notices shall be sent by
registered or certified mail, postage prepaid, return receipt
requested. All such notices shall be deemed to have been given five
days after mailing, addressed in the manner indicated below or at such
other addresses as the parties may from time to time notify each other
of:
SELLER: BUYER:
Research, Inc. Scitex Digital Printing, Inc.
6425 Flying Cloud Avenue Purchasing Department
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Vice President, Drying Division Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Buyer
13.02 Publicity. Neither party shall issue a press release or other like
publicity of any nature regarding this Agreement without the other
party's prior written approval, which approval shall not be
unreasonably withheld. However, such approval shall be deemed to have
been given to the extent such disclosure is required to comply with
governmental requirements. In such event, the publishing party shall
review the text of such disclosure with the other party prior to such
disclosure.
13.03 Force Majeure. Neither party shall be liable to the other for its
failure to perform any of its obligations hereunder during any period
in which such performance is delayed by circumstances beyond its
reasonable control including, but not limited to, fire, flood, war,
embargo, strike, riot, act of the other party, inability to secure
materials and transportation facilities, or the intervention of any
governmental authority. If such delaying cause shall continue for more
than ninety (90) days, the party injured by the inability of the other
to perform shall have the right upon written notice to either (1)
terminate the Agreement with respect to materials not already shipped,
or (2) treat this Agreement as suspended during the delay and reduce
any commitment in proportion to the duration of the delay.
13.04 Amendment. This Agreement may be amended only by written amendment duly
signed by authorized representatives of both parties.
13.05 Entire Agreement. This Agreement constitutes the entire agreement of
the parties as to the subject matter hereof, and supersedes any and all
prior oral or written understandings and agreements including purchase
orders.
13.06 Assignment. This Agreement may not be assigned by the Seller without
the prior written consent of Buyer.
13.07 Severability. If any provision of this Agreement is held invalid by any
law, rule, order or regulation of any government, or by the final
determination of any state or federal court, such invalidity shall not
affect the enforceability of any other provisions not held to be
invalid.
13.08 Omissions. Any delay or omission by either party to exercise any right
or remedy under this Agreement shall not be construed to be a waiver of
any such right or remedy or any other right or remedy
hereunder. All of the rights of either party under this Agreement shall
be cumulative and may be exercised separately or concurrently.
13.09 Governing Law. This Agreement and the sale of Products hereunder shall
be governed by and construed within and in accordance with the laws of
the State of Ohio.
13.10 Official Agreement. This Agreement becomes effective only upon
execution by authorized representatives of both parties.
SCITEX DIGITAL PRINTING, INC.
By: /s/ Hercules Mousidades V. P., Mktg. & Business Development
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(Signature) (Title)
Hercules Mousiades October 6, 1998
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(Typed Name) (Date)
RESEARCH, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Vice President, Dryer Division
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(Signature) (Title)
▇▇▇▇▇ ▇▇▇▇▇▇ October 6, 1998
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(Typed Name) (Date)