{"id":42230,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/development-and-supply-agreement-jetfax-inc-and-samsung.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"development-and-supply-agreement-jetfax-inc-and-samsung","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/development-and-supply-agreement-jetfax-inc-and-samsung.html","title":{"rendered":"Development and Supply Agreement &#8211; JetFax Inc. and Samsung Electronics Corp."},"content":{"rendered":"<pre>\n                                      [*] =    CONFIDENTIAL TREATMENT REQUESTED\n                                                             REDACTED\n\n                        DEVELOPMENT AND SUPPLY AGREEMENT\n\n\n\n                                 BY AND BETWEEN\n\n\n\n                                  JETFAX, INC.\n\n                                      AND\n\n                        SAMSUNG ELECTRONICS CORPORATION\n\n\n\n                                 JUNE 30, 1995\n\n\n\n                                  CONFIDENTIAL\n\n                                      -1-\n\n \n                        DEVELOPMENT AND SUPPLY AGREEMENT\n\n\n          THIS DEVELOPMENT AND SUPPLY AGREEMENT (the \"Agreement\") is entered\ninto and is effective as of June 30, 1995 (the \"Effective Date\"), by and between\nJetFax, Inc., a corporation duly organized and existing under the laws of\nDelaware, U.S.A. with its principal place of business at 1376 Willow Road, Menlo\nPark, California 94025 (\"JetFax\"), and Samsung Electronics Corporation, a\ncorporation duly organized and existing under the laws of the Republic of Korea,\nhaving its principal place of business at 20th Floor, Severance Building, 84-11,\n5-Ka, Namdaemoon-Ro, Chung-Ku, Seoul, Korea (\"Samsung\").\n\n\nA.   Samsung is in the business of manufacturing and selling a variety of\nelectronic products including facsimile machines;\n\nB.   Samsung is currently developing a new product (the \"Product\" as\nhereinafter defined) which will require certain controller electronics and\nassociated software;\n\nC.   JetFax is willing, subject to the terms and conditions set forth in\nthis Agreement, to develop the controller electronics and associated software to\nbe incorporated as part of the Product, supply the custom computer chips\nrequired by JetFax's design and license to Samsung the intellectual property on\nthe terms and conditions herein; and\n\nD.   Samsung desires to have JetFax design and develop the necessary\nelectronics and software, procure from JetFax the custom computer chips required\nby JetFax's design and to acquire a license to make, use and sell such\nelectronics, software and computer chips on the terms and conditions herein-,\n\nIN CONSIDERATION of the foregoing and the mutual promises and covenants\ncontained in this Agreement, the parties hereto agree as follows:\n\n\n1.   DEFINITIONS\n\n1.1  \"Acceptance Date\" shall mean the date of acceptance of a \"JetFax\nDeliverable\" or \"Samsung Deliverable,\" as hereinafter defined, pursuant to\nSection 4.2(c) hereof.\n\n1.2  \"Affiliate\" shall mean all entities and persons controlled by,\ncontrolling or under common control with a party.\n\n1.3  \"ASIC Set\" shall mean a single set of Application Specific Integrated\nCircuit chips developed by JetFax for use in a single Product.\n\n                                      -2-\n\n \n1.4  \"Bill of Materials and Source List\" shall mean the identification by\nmanufacturer and model of certain components and the source from which such\ncomponents may be obtained.  A preliminary Bill of Materials is attached hereto\nas Exhibit F.\n\n1.5  \"Deliverable\" shall mean a JetFax Deliverable or Samsung Deliverable.\n\n1.6  \"Electronic\" shall mean those controller electronics and \"Software,\"\nas hereinafter defined, to be developed by JetFax and incorporated as part of\nthe Product.\n\n1.7  \"Errors\" shall mean: (i) reproducible defects in any Deliverable which\ncauses it not to function in conformance with the Specifications, and (ii)\nSoftware miscoding which results in the Software failing to function in\nconformance with the Specifications, if such failure is reproducible.\n\n1.8  \"Hardware Designs\" shall mean those designs for circuit boards,\nincluding information for in-circuit testers, to be developed by JetFax in\naccordance with the Specifications.\n\n1.9  \"JetFax Deliverables\" shall mean, collectively or individually, JetFax\ndeveloped Electronics, Software, Hardware Designs and the Bill of Materials and\nSource List.  A more detailed description of the JetFax Deliverables is set\nforth in Exhibit A to this Agreement.\n\n1.10 \"Product\" shall mean the new Samsung combined laser printer,\ntelecopier, scanner and copier with features and \"Specifications,\" as\nhereinafter defined, as provided in Exhibit B.\n\n1.11 \"Project Schedule\" shall mean the schedule of events for the parties'\nperformance under this Agreement, as set forth in Exhibit C.\n\n1.12 \"Services\" shall mean the work and labor necessary for the performance\nof the respective obligations of the parties.\n\n1.13 \"Software\" shall mean software object code designed in accordance with\nthe Specifications.\n\n1.14 \"Specifications\" shall mean the engineering, operational and\/or\nfunctional descriptions, details and requirements for the Product and the\nSoftware and the Hardware Designs, as set forth in Exhibit B and mutually agreed\nto between the parties as the same may be modified as provided herein.\n\n1.15 \"Samsung Deliverables\" shall mean the sample Product units (minus\nmotherboard), list of connectors and connector pinouts, mechanical drawings and\npower supply specifications as more fully set forth in Exhibit D.\n\n                                      -3-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n2.   SCOPE OF WORK\n\n2.1  Services.  Upon the terms and conditions set forth in this Agreement,\nJetFax and Samsung agree to perform the Services required to provide their\nrespective Deliverables in accordance with the terms and conditions herein.\nEach party will be responsible for obtaining all the technology, labor,\nmaterial, tooling and facilities necessary for the completion of its portion of\nthe Services, except as otherwise set forth in this Agreement.\n\n2.2  Progress Reports.  Each party hereto shall provide the other party\nwith progress reports, as reasonably requested by the other party, starting\nafter the Effective Date and ending on the final Acceptance Date.  Each report\nshall be in such form and contain such information as may be mutually agreed\nupon by the parties, including but not limited to, progress to current scheduled\nmilestones, description of any problems in meeting milestones, and if any\nproblems are encountered, proposed recovery methods.\n\n2.3 Agency Approvals.\n\n(a)  The parties agree that JetFax shall make all engineering changes with\nrespect to the Electronics necessary for obtaining any required governmental or\nprivate agency approvals or certifications for the Product in the countries\nfisted in Exhibit E. All costs of certification (except fees for FCC and IC\ntelecom approvals in the U.S. and Canada which shall be paid by JetFax),\nincluding, but not limited to, testing fees, filing fees and rework charges\nrequired in connection with applying for such approvals in such countries shall\nbe paid by Samsung. Alternatively, at Samsung's written election, JetFax shall\nmake such engineering changes and complete all necessary filings and\ncertifications for Samsung at a price of [*] per country, based on Samsung's\nmaking such election for a minimum of three (3) countries. Such payment shall be\nmade at the time of Samsung's election to have JetFax provide such services.\n\n(b)  The parties agree that Samsung has the responsibility for and shall bear\nthe expense of obtaining any necessary Republic of Korea government (the \"Korean\nGovernment\") or private agency approvals or certifications which are required in\nconnection with this Agreement. Samsung shall make no commitment to the Korean\nGovernment or any agency thereof regarding this Agreement without the express\nwritten consent of JetFax. If any approval or certification is conditioned upon\nchanges in the terms and conditions of this Agreement, such changes shall be\neffective only if a formal amendment is executed by both parties. Samsung shall\nadvise Jetfax immediately of the receipt of such approvals and certifications\nand shall provide JetFax a copy of the documents received by Samsung related to\nsuch approvals and certifications.\n\n3.   DESIGN REVIEW AND SPECIFICATION CHANGES\n\n3.1  Design Review.  The parties agree to promptly confer at the request of\neither party with respect to any material issues a party may have with the\nperformance of the other party of its obligations under this Agreement and to\nreview design and engineering issues.  JetFax shall pay all travel related costs\nfor up to four (4) trips to Samsung's laboratory for two (2) of its employees in\nproviding the Services required hereunder up until the final Acceptance Date.\nAirfare, transportation, housing and meal expenses associated with any trips by\nJetFax employees in excess of the foregoing shall be paid for by Samsung.\n\n3.2  Changes to the Specifications.  JetFax shall make reasonable efforts\nto ensure that the Hardware Designs are cost-effective.  Each party is entitled\nto request modifications in the form of changes or additions to the\nSpecifications at any time during the term of this Agreement.  Such requests\nshall be submitted in writing, and shall not be deemed or considered binding\nunless accepted by the other party in writing.  If any such modification of the\nSpecifications is agreed upon, the parties will negotiate an equitable\nadjustment to the Agreement, including the apportionment of any additional\ndevelopment, testing or tooling costs.  Upon mutual agreement to any change to\nthe Specifications, both parties will proceed with the implementation of the\nprescribed changes, and the Specifications and other Exhibits to this Agreement\nshall be modified accordingly to reflect such agreed upon changes.\n\n                                      -4-\n\n \n3.3  Modification to Specifications Upon Acceptance.  Jetfax and Samsung\nagree that upon acceptance of each Deliverable pursuant to Section 4.2, the\nSpecifications shall be modified as necessary to conform to the Deliverables, as\naccepted, except as to material deviations from the Specifications noted in a\nwriting signed by both parties.  The party responsible for such Deliverable\nshall perform further work to correct such deviations.  After acceptance of each\nDeliverable pursuant to Section 4.2, the term \"Specifications\" as used herein\nshall refer in all cases to the Specifications as so modified.\n\n4.   DELIVERABLES AND DELIVERY;  ACCEPTANCE, AND REJECTION\n\n4.1  Deliverables.  Samsung and JetFax agree to use reasonable efforts to\nperform their respective obligations hereunder and deliver their respective\nDeliverables, which conform to the Specifications, in accordance with the\nProject Schedule.  Each party's obligation shall be contingent upon the other\nparty successfully providing any prerequisite Deliverable (as specified in the\nProject Schedule) in a timely fashion.  AU Deliverables shall be delivered by\nthe times set forth in the Project Schedule, The parties shall use such\nDeliverables for testing and acceptance and marketing purposes only and shall\nnot sell, lease or transfer the same to any third party.\n\n4.2  Acceptance.\n\n(a)  Each party will examine and test each Deliverable (and\/or part thereof of\nthe other party upon receipt. Each receiving party shall, as soon as reasonably\npracticable following the receipt of same, but in no event later than fifteen\n(15) business days after receipt, (i) accept the Deliverable (or part thereof)\nand so inform the other party in writing or (ii) if the Deliverable (or part\nthereof) contains material Errors, reject the Deliverable (or part thereof and\nprovide the other party with a written statement of such material Errors. The\nfailure of a party to respond within the specified fifteen (15) day period shall\nbe deemed acceptance of the Deliverable (or part thereof, but shall not limit\nthe provisions of Section 4.4 hereof. Either party may request a reasonable\nextension of time to complete such testing if required under the circumstances,\nand both parties shall reasonably consider such requests, provided that no such\nextension shall be effective unless in writing and signed by a duly authorized\nrepresentative of the party granting such extension.\n\n(b)  The developing party will promptly correct the material Errors set forth in\nthe statement of material Errors with respect to any Deliverable (or part\nthereof) and redeliver the Deliverable (or part thereof to the receiving party\nwithin such reasonable period of time as may be agreed upon by JetFax and\nSamsung. The receiving party shall, as soon as reasonably practicable after such\nredelivery, but in no event later than fifteen (15) business days thereafter,\naccept or reject the redelivered Deliverable in accordance with the procedure\nset forth in Section 4.2(a). Such procedure shall be repeated until the\nDeliverables are accepted or the receiving party invokes the provisions of\nSection 4.2(d) hereof.\n\n(c)  \"Acceptance\" shall be deemed to occur upon the earlier of (i) acceptance,\npursuant to this section, of all JetFax and Samsung Deliverables or (ii) the\nfirst sale, lease, license or other distribution or transfer of a Product by\nSamsung to a customer or other third party other than solely for test purposes.\n\n(d)  The parties further agree that if a dispute arises as to whether any\nDeliverable (or part thereof) is acceptable under the foregoing procedure, and\nthe parties are unable after good faith negotiation to resolve such dispute, the\nparties agree to submit the acceptability of any such Deliverable (or part\nthereof to a mutually acceptable independent third party mutually acceptable to\nthe parties. Such third party shall test the Deliverable (or part thereof and\ndetermine if the Deliverable (or part thereof meets the Specifications for the\nDeliverable and thus is acceptable. The determination of such independent third\nparty as to the acceptability of any Deliverable (or part thereof shall be\ndeemed final. The cost, if any, of employing such independent third party shall\nbe borne by the losing party.\n\n4.3  Rejection.  If any Deliverable is determined under Section 4.2(d) to\nnot be acceptable, such feature may be deemed a breach of this Agreement by such\ndelivering party, and the non-breaching party may elect to \n\n                                      -5-\n\n \nterminate this Agreement pursuant to Section 12.2(a) hereof or may elect to\naccept further resubmission of the applicable Deliverable.\n\n4.4  JetFax Support.  For a period of one (1) year after JetFax's release\nof the final production Software, JetFax shall provide Samsung with reasonable\nengineering support as required to incorporate the Hardware Designs and Software\nin the manufacture of the Product.  All related airfare, transportation, housing\nand meal expenses incurred by JetFax during visits requested by Samsung shall be\npaid by Samsung.  After the initial one (1) year period, JetFax shall make its\nengineering support reasonably available to Samsung at JetFax's customary rates.\nFor two (2) years after the first date of production of the Product, JetFax\nshall use reasonable efforts to correct all material, documented and\nreproducible Errors in the Software at no additional charge.  Samsung shall\nprovide such assistance as JetFax may reasonably request in making such\ncorrections.  All such corrections to the Software and Hardware Designs shall be\ndeemed to be included in the licenses granted under Section 5.3 hereof JetFax\nwill have no obligation under this section with respect to any Error in the\nSoftware or Hardware Designs caused by any person or entity other than JetFax,\nand JetFax is not obligated to correct any Errors in the Software unless such\nError or defect causes the Software to fail to function in conformance with the\nSpecifications.\n\n5.   SUPPLY AND OWNERSHIP RIGHTS\n\n5.1  ASIC Set Procurement.  Samsung shall purchase all the ASIC Sets\nSamsung or its Affiliates require from JetFax under the terms and conditions\ncontained herein.\n\n5.2  Material Cost Estimates.  If Samsung is unable to procure key\nsemiconductor components of the Electronics at a price similar to that price at\nwhich JetFax is able to obtain such components, JetFax shall use reasonable\nefforts to supply such components to Samsung at JetFax's cost plus handling,\nshipping, packaging and insurance expenses.\n\n5.3  JetFax Hardware Designs and Software Etc,\n\n(a)  Subject to the terms and conditions of this Agreement, JetFax hereby grants\nto Samsung, effective only upon receipt of the final payment due under Section\n6.1 herein, a nonexclusive, worldwide license for a period of five (5) years,\ncommencing on such date, to the Hardware Designs and the Software as required to\nmanufacture, distribute, sell and service the Product; provided, however, such\nlicense shall not include the right to manufacture the ASIC Sets, which right\nshall be retained by JetFax. All ownership rights of all intellectual property\npertaining to the Hardware Design and the Software, including documentation,\ndesigns, schematics and software shall remain the sole property of JetFax.\n\n(b)  The non-exclusive license granted to Samsung pursuant to Section 5.3(a) of\nthis Agreement shall include the right to grant sublicenses to Affiliates of\nSamsung but to no other party. Samsung shall give JetFax written notice of any\nsuch sublicense and provide JetFax with a copy of the sublicense.\nNotwithstanding any such sublicense, Samsung shall remain fully liable for\ncompliance with all of its obligations under this Agreement, including without\nlimitation, the payment of the amounts due under Section 6.2 of this Agreement.\n\n(c)  Samsung shall not alter, reverse engineer, decompile or disassemble the\nSoftware or the ASIC Sets or the Field Programmable Gate Arrays included in the\nHardware Designs. JetFax retains all ownership rights in and to the Software,\nHardware Designs, and corresponding intellectual property.\n\n5.4  Samsung Deliverables.  Samsung retains its ownership rights in and to\nany and all intellectual property developed by it and contained in the Samsung\nDeliverables.  Subject to the terms and conditions of this Agreement, Samsung\nhereby authorizes JetFax to use the Samsung Deliverables and any other Samsung\n\"Confidential Information,\" as hereinafter defined, disclosed to JetFax under\nthis Agreement as necessary or useful to develop the JetFax Deliverables.\nDuring the term of this Agreement, JetFax may reverse engineer, decompile or\ndisassemble any software provided by Samsung as necessary or useful for the\ndevelopment of the JetFax Deliverables.\n\n                                      -6-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n5.5  Third Party Confidential Disclosure Agreements.  Prior to disclosing\nany JetFax Deliverables to any third party in connection with Samsung's limited\n\"have manufactured\" license pursuant to Section 5.3 (a), Samsung shall procure\nfrom such third party a fully executed confidential disclosure agreement in a\nform acceptable to JetFax, pursuant to which such party agrees to not disclose\nor use such information except pursuant to such license, and naming JetFax and\nsuch third party as parties thereto.\n\n6.   PAYMENTS\n\n6.1  Development Fees.  In consideration for the Services to be performed\nby JetFax hereunder, Samsung agrees to pay to JetFax a nonrefundable development\nfee of [*]  paid in the following  [*]  at the times indicated:\n\n(a)       [*]\n\n(b)       [*]  and\n\n[*]\n\n\n\n6.2  ASIC Price.  Samsung shall pay JetFax for each ASIC Set procured from\nJetFax pursuant to Section 5.1 an amount (the \"ASIC Set Price\") equal to the sum\nof   [*]  Samsung shall pay the amount due hereunder to JetFax upon placing an\norder for the ASIC Sets with JetFax.  Notwithstanding the foregoing, the amount\ndue for the first [*]  In determining the total cost of the components, the\ncosts used shall (i) be from the lowest cost suppliers located by JetFax or\nSamsung, (ii) not include shipping, handling, taxes or other similar costs,\n(iii) not include the cost of printed circuit boards, (iv) not include the cost\nof additional or upgraded components required due to changes in the\nSpecifications or configuration after the Effective Date and (v) not include any\nincrease in DRAM or SRAM costs occurring after the Effective Date.\n\n6.3  Method of Payment.  Payment shall be made by check or by wire transfer\nto such bank account or other place as designated in writing by JetFax from time\nto time.  All taxes, duties, imposts and similar charges which may be assessed\nor imposed by any governmental authority upon the sums due to JetFax pursuant to\nthis Agreement shall be borne and discharged by Samsung except as may otherwise\nbe agreed to in writing by the parties.  No part of the charges borne and\ndischarged by Samsung shall be deducted by Samsung from any payment due to\nJetFax under this Agreement.\n\n6.4  Late Fees.  Any late payments shall include interest at the lesser of\n(i) [*] per annum or (ii) the maximum rate allowed by applicable law.  The\npayment of such late charges shall not prevent JetFax from exercising any other\nrights it may have as a consequence of the lateness of any payment.\n\n7.   REPRESENTATIONS AND INDEMNIFICATIONS\n\n7.1  Representations.  Each party represents and warrants that:\n\n(a)  it has full right and authority to enter into this Agreement, to perform\nits obligations hereunder; and\n\n(b)  it has full right and authority to grant the rights granted to the other\nparty herein.\n\n                                      -7-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n7.2  Samsung Indemnity.  Subject to the terms hereof, Samsung agrees to\nindemnify, defend and hold JetFax harmless from any claim, loss, or damage\narising from (a) any patent infringement of any third party's rights by any part\nof the Product, including the Hardware Designs and Software if such items are\nmodified by, or on behalf of, Samsung and (b) any sale, use or other disposition\nof the Product by Samsung or its transferees.  Such obligation to indemnify\nshall be subject to the condition that: (i) JetFax promptly notifies Samsung in\nwriting of any such claim, loss or damage and permits Samsung, through counsel\nof choice, to answer the charge of infringement and defend such claim; (ii)\nSamsung has sole control of the defense and all related settlement negotiations;\n(iii) the claim does not involve a patent that is already licensed by JetFax in\nits existing patent license agreements; and (iv) JetFax provides Samsung with\nthe assistance, information and authority to perform the above.  If Samsung\nagrees to settle the suit, both Samsung and JetFax agree not to publicize the\nsettlement nor to permit the party claiming infringement to publicize the\nsettlement.\n\n7.3  JetFax Indemnity.  In the countries fisted in Exhibit E, JetFax agrees\nto indemnify, defend and hold Samsung harmless from any claims, loss or damage\narising from any patent infringement by JetFax's Hardware Design and Software.\nSuch obligation to indemnify shall be subject to the condition that: (i) Samsung\npromptly notifies JetFax in writing of any such claim, loss or damage and\npermits JetFax, through counsel of choice, to answer the infringement and defend\nsuch claim; (ii) JetFax has sole control of the defense and all related\nsettlement negotiations; (iii) the claim does not involve a patent that is\nalready licensed by Samsung in its existing patent license agreements; and (iv)\nSamsung provides JetFax with the assistance, information, and authority to\nperform the above.  If JetFax is liable for such infringement, JetFax may either\nmodify its design to be non-infringing or obtain a license to continue using\nJetFax's design at JetFax's expense.  If JetFax is unable to obtain a license\nunder reasonable terms and the parties are unable to reasonably design around\nsuch patent(s), the parties shall negotiate in good faith a settlement between\nthem to omit the infringing patent from this indemnity provision.\n\nIf JetFax agrees to settle the suit, both JetFax and Samsung agree not to\npublicize the settlement nor to permit the party claiming infringement to\npublicize the settlement.  Notwithstanding anything contained herein to the\ncontrary, JetFax's liability under this section of this Agreement shall be\nlimited to an amount not greater than the sum of [*]\n\nNotwithstanding the foregoing, JetFax shall have no liability hereunder for any\nclaim, loss or damage based on modifications or other alterations made to the\nSoftware or the Hardware Designs by a party other than JetFax or the\ncombination, operation or use of the Software or the Hardware Designs with other\nhardware or software not furnished or developed by JetFax if such infringement\nwould have been avoided by the use of the Software and the Hardware Designs\nwithout such modification or alteration or without such other hardware or\nsoftware.\n\n8.   CONFIDENTIALITY\n\nSamsung and JetFax acknowledge that in the course of performance hereunder, each\nparty may disclose to the other Confidential Information.  Confidential\nInformation shall include, but not be limited to, the Hardware Designs, the\nSoftware, any other hardware designs or software provided, source lists, and\nother trade secrets or proprietary information.  Confidential Information shall\nbe treated as confidential by the receiving party.  The receiving party shall\nnot disclose to others (including to any Affiliates of the receiving party not\nbound by like conditions of confidentiality), nor make any use of the\nConfidential Information received from the providing party for any purpose other\nthan as contemplated in this Agreement, without the prior written consent of the\nproviding party.  Each party shall not so disclose or use Confidential\nInformation of the other except to the extent any of the Confidential\nInformation: (i) was known to the receiving party prior to the disclosure\nhereunder; (ii) is or becomes publicly known through no fault or omission\nattributable to the receiving party; or (iii) is rightfully given to the\nreceiving party from sources independent of the providing party, which sources\nrightfully possess such information.\n\n9.   TRADEMARKS AND LOGOS\n\n                                      -8-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\nSamsung agrees to place JetFax's name and copyright notice on all electronic\ncomponents designed by JetFax including the firmware, the circuit boards and the\nASIC Sets.  JetFax shall also have the right to prominently display its name on\nall Windows software pieces, including but not limited to, the printer and\nscanner drivers and the configuration program.  JetFax shall have the right to\nrevoke Samsung's right to use JetFax's name and any logo or trademark if the\nquality of the Products is not reasonably acceptable to JetFax.\n\n10.  MARKETING RIGHT\n\nSamsung agrees to manufacture and sell the Products to JetFax on an OEM basis.\nIf Samsung has not entered into any OEM contract to supply the Products to a\nthird party for sale in the United States at the time JetFax wishes to first\nplace an order for the Products, JetFax and Samsung shall negotiate an agreement\nwith mutually agreeable terms for such sales. If at any time, Samsung enters\ninto an agreement to supply the Products to any third party for sale in the\nUnited States on terms more favorable than those then currently in the agreement\nbetween JetFax and Samsung, Samsung shall offer in writing to sell the Products\non the more favorable terms to JetFax. JetFax's rights under this section shall\nnot prevent Samsung from selling the Product to other OEMS.\n\n11.  TERM\n\nThis Agreement will commence on the Effective Date and will continue to be in\neffect until five (5) years after the date JetFax releases the final production\nSoftware, unless terminated earlier pursuant to other provisions in this\nAgreement.\n\n12.  TERMINATION\n\n12.1 JetFax Default.  If JetFax breaches any of its material obligations\nhereunder and fails to cure such breach within sixty (60) days of receiving\nwritten notice thereof from Samsung, or if it is not reasonable to expect such a\ncure within that period, fails to commence to cure within that period and to\ncontinue to diligently cure the breach, the price to be paid by Samsung per ASIC\nSet under Section 6.2 shall be reduced by  [*]  until such breach is cured.\n\n12.2 Termination for Cause by Either Part . Either party may terminate this\nAgreement:\n\n(a)  upon sixty (60) days written notice to the other party if the other party\nbreaches any of its material obligations hereunder and fails to cure such breach\nduring the notice period, or if it is not reasonable to expect such a cure\nwithin that period, does not within such time commence to cure, and continues to\ndiligently cure, the breach; or\n\n(b)  upon sixty (60) days written notice to the other party if a petition in\nbankruptcy or similar debtor protection law is filed by or against the other\nparty, or if the other party makes an assignment for the benefit of creditors,\nor a receiver is appointed, and such events are not discontinued, vacated or\nterminated during the notice period.\n\n12.3 Effect of Termination.\n\n(a)  Upon termination of this Agreement, the license set forth in Section 5.3\nhereof shall terminate and Samsung shall have no further rights hereunder and\nJetFax shall have no obligation to provide any additional ASIC Sets. JetFax\nshall retain all rights to the Hardware Designs and the Software.\n\n(b)  Upon termination of this Agreement, each party shall return to the other\nparty all Confidential Information of the other party and shall make no other or\nfurther use of such Confidential Information. Upon termination of this Agreement\nfor any reason other than default by JetFax, Samsung shall immediately pay to\nJetFax all amounts due hereunder which have not yet been paid.\n\n                                      -9-\n\n \n13.  JETFAX FAILURE TO PERFORM\n     -------------------------\n\nSubject to JetFax's rights in Article 12 and subject to Section 17. 1, if JetFax\ndiscontinues its performance hereunder prior to the release of the final\nproduction software and fails to make a good faith effort to complete\nperformance of its obligations hereunder, JetFax shall repay to Samsung, as\nliquidated damages, all payments received by JetFax under Section 6. 1.\n\n14.  RIGHT TO DEVELOP FOR OTHERS\n     ---------------------------\n\nNothing in this Agreement will impair JetFax's right to acquire, license,\ndevelop, manufacture, sell or distribute for itself or others similar technology\nperforming the same or similar functions as the technology contemplated by this\nAgreement.\n\n15.  DISPUTE RESOLUTION\n     ------------------\n\n15.1 DisputeResolution.  All disputes under this Agreement shall be\n     -----------------                                             \nsettled, if possible, through good faith negotiations between the parties.  If\nsuch good faith negotiations are unsuccessful, either party may, after thirty\n(30) days written notice to the other party, seek arbitration as hereinafter\nprovided.\n\n15.2 Arbitration.  Any dispute under this Agreement shall be settled by\narbitration in San Francisco, California, U.S.A. as follows:\n\n(a)  The matter in dispute to be settled by arbitration shall be submitted to a\npanel of three (3) arbitrators in accordance with the Rules of Arbitration and\nConciliation of the International Chamber of Commerce C'ICC\") then in effect.\n\n(b)  Each party shall appoint one arbitrator within fifteen (15) days after\ngiving or receiving the demand for arbitration. The two arbitrators thus\nappointed shall, within fifteen (15) days after both have been appointed,\nappoint the third arbitrator.\n\n(c)  Any appointment required herein not made within the prescribed time shall\nbe made by the ICC.\n\n(d)  The proceedings shall be conducted in English and all arbitrators shall be\nfluent in English.\n\n(e)  The determination of the arbitrators shall be conclusive and binding upon\nthe parties and judgment may be entered thereon and enforced by any court\nof competent jurisdiction and each party hereby irrevocably consents to the\njurisdiction of such courts for such purpose.\n\n16.  DISCLAIMER OF CONSEQENTIAL DAMAGES AND IMPLIED WARRANTIES\n     ---------------------------------------------------------\n\nIn no event shall either party be liable to the other for any indirect, special,\nincidental or consequential damages for breach of or failure to perform under\nthis Agreement, even if that party has been advised of the possibility of such\ndamages.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7. 1, NEITHER PARTY MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR UALIED, WITH RESPECT TO ANY\nDELIVERABLE OR OTHERWISE, INCLUDING WITHOUT LMTATION, THE WARRANTIES OF\nMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TECHNICAL PERFORMANCE, OR\nCOMMERCIAL SUCCESS AND HEREBY DISCLAIMS ALL SUCH OTHER WARRANTIES.  EXCEPT AS\nEXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY ASSUMES ANY RESPONSIBILITIES\nWHATSOEVER WITH RESPECT TO THE DEVELOPMENT, MANUFACTURE, USE, SALE, LEASE, OR\nOTHER DISPOSITION BY THE OTHER PARTY OR ITS VENDEES OF PRODUCTS INCORPORATING\nDELIVERABLES LICENSED OR PROVIDED UNDER THIS AGREEMENT.\n\n                                      -10-\n\n \n17.  GENERAL\n\n17.1 Force Majeure.  Neither party shall be liable for any failure or delay\n     -------------                                                         \nin its performance under this Agreement due to causes which are beyond its\nreasonable control, including, but not limited to, acts of God, acts of civil or\nmilitary authority, fires, epidemics, floods, earthquakes, riots, wars,\nsabotage, labor shortages or disputes, and governmental actions; provided that\n(a) the delayed party: (i) gives the other party written notice of such cause\npromptly, and in any event within fifteen (1 5) days of discovery thereof, and\n(ii) uses its reasonable efforts to correct such failure or delay in its\nperformance, and (b) the delayed party's time for performance or cure under this\nAgreement shall be extended for a period equal to the duration of the cause or\nsixty (60) days, whichever is less.\n\n17.2 Relationship of Parties.  Samsung and JetFax are independent\n     -----------------------\ncontractors.  Neither company nor its respective employees, consultants,\ncontractors or agents are agents, employees or joint venturers of the other, nor\ndo they have any authority to bind the other by contract or otherwise to any\nobligation.  They will not represent to the contrary, either expressly,\nimplicitly, by appearance or otherwise.  Each party will determine, in its sole\ndiscretion, the manner and means by which the Services are accomplished, subject\nto the express condition that each party will at all times comply with\napplicable law.\n\n17.3 Personnel.  The respective employees, consultants, contractors and\n     ---------\nagents of each party will observe the working hours, working rules and holiday\nschedule of the other while working on the other's premises.  Notwithstanding\nthe foregoing, employees of a party shall be and remain employees of that party\nand shall not be deemed or claim to be employees of the other party even when\nworking on such other party's premises.\n\n17.4 Employment Taxes and Benefits.  Each party shall be responsible for\n     ----------------------------- \nany and all employment taxes and benefits payable to its employees,\nrepresentatives, contractors, subcontractors and other engaged by it to perform\nServices hereunder and in no event shall either party look to the other for such\npayments.\n\n17.5 Other Tax Implications.  The purpose of development of the\n     ----------------------                                    \nDeliverables under this Agreement is to demonstrate that the Product developed\nhereunder will conform to the Specifications.  The Deliverables have no\nintrinsic value as an item.  As such, no value added, sales, or use taxes are\nanticipated to be required as a result of the Services performed under this\nAgreement.\n\n17.6 Export Controls.  Samsung acknowledges that it and JetFax are subject\n     ---------------                                                      \nto and agrees to abide by the United States laws and regulations (including the\nExport Administration Act of 1979 and Arms Export Control Act) controlling the\nexport of technical data, computer software, laboratory prototypes, biological\nmaterial and other commodities.  The transfer of such items may require a\nlicense from the cognizant agency of the U.S. Government or written assurances\nby Samsung that it shall not export such items to certain foreign countries\nwithout prior approval of such agency.  JetFax neither represents that a license\nis or is not required or that, if required, it shall be issued.\n\n17.7 Assignment.  Except as expressly provided herein, neither party may\n     ----------\nassign or delegate this Agreement, or any of its respective rights or\nobligations hereunder without the prior written consent of the other party\nhereto; provided, however, that JetFax may, with prior written notice to\nSamsung, assign or delegate this Agreement and JetFax's rights and obligations\nhereunder to any successor in interest to JetFax in connection with any sale or\ntransfer of all or substantially all of its assets or upon any merger,\nconsolidation, or dissolution.  Either party may, from time to time and upon\nprior written notice to the other party, subcontract with one of its\nsubsidiaries for the performance of certain obligations under this Agreement\nprovided that the party so subcontracting shall remain liable for performance of\nits obligations hereunder.  Any attempted assignment in violation of the\nprovisions of this section shall be void and without force or effect.  In the\nevent of a pen-nitted assigm-nent hereunder, this Agreement or the applicable\nprovisions shall be binding upon the successors, executors, and assigns of the\nparties hereto.\n\n17.8  Applicable- Law.  This Agreement shall be governed by and construed in\n      ---------------  \naccordance with the laws of the State of California, U.S.A. without giving\neffect to the principles of conflicts of law thereunder.\n\n                                      -11-\n\n \n17.9  Severability.  If for any reason a court of competent jurisdiction\n      ------------\nfinds any provision of this Agreement, or portion thereof, to be unenforceable,\nthat provision of the Agreement shall he enforced to the maximum extent pen-\nnissible so as to effect the intent of the parties, and the remainder of this\nAgreement shall continue in full force and effect.\n\n17.10 Notices.  All notices required or permitted under this Agreement shall\n      ------- \nbe in writing, reference this Agreement and be deemed given when: (i) delivered\npersonally; (ii) when sent by confirmed telex or facsimile; (iii) fifteen (15)\ndays after having been sent by registered or certified mail, return receipt\nrequested, postage prepaid; or (iv) one (1) day after deposit with a commercial\novernight carrier, with written verification of receipt.  All communications\nwill be sent to the addresses set forth below.  Either party may change its\naddress by giving notice pursuant to this section.\n\nJetFax:\n-------\nRudy Prince, President\nJet Fax, Inc.\n1376 Willow Road\nMenlo Park, California 94025\nU. S. A.\n\n\nSamsung:\n--------\n\nAttn:\nSamsung Electronics Corporation \n20th Floor, Severance Building 84-11, \n5-Ka, Namdaemoon-Ro, Chung-Ku \nSeoul, Korea\n\n\nWith a copy to:\n\nJames Prince, Esq.\n4200 Texas Commerce Tower \nHouston, Texas 77002\nU.S.A.\n\n17.11  Waiver.  Failure by either party to enforce any provision of this\n       ------\nAgreement shall not be deemed a waiver of future enforcement of that or any\nother provision.\n\n17.12  No Rights in Third Parties. This Agreement is made for the benefit of\n       --------------------------                                           \nSamsung and JetFax and not for the benefit of any third parties.\n\n17.13 Language. This Agreement is executed in original English counterparts,\n      --------                                                              \neach of which shall be deemed an original, but collectively shall constitute but\none and the same instrument.  The English text of the Agreement shall prevail\nover any translation thereof\n\n17.14 Headings and References.  The headings and captions used in this\n      -----------------------                                         \nAgreement are used for convenience only and are not to be considered in\nconstruing or interpreting this Agreement.\n\n17.15 Construction.  This Agreement has been negotiated by the parties and\n      ------------                                                        \ntheir respective counsel.  This Agreement will be fairly interpreted in\naccordance with its terms and without any strict construction in favor of or\nagainst either party.\n\n17.16 Trademark Usage.  Except for the provision stated in Section 9 of this\n      ---------------                                                       \nAgreement, neither party shall make any use of any trademark, service mark or\ntrade name of the other in connection with its advertising, promotional material\nor packaging for the Product without first obtaining the other party's written\nconsent.\n\n                                      -12-\n\n \n17.17 Complete Agreement.  This Agreement, including all Exhibits\n      ------------------                                         \nconstitutes the entire agreement between the parties with respect to the subject\nmatter hereof, and supersedes and replaces all prior or contemporaneous\nunderstandings or agreements, written or oral, regarding such subject matter.\nNo amendment to or modification of this Agreement shall be binding unless in\nwriting and signed by duly authorized representatives of both parties.  To the\nextent any terms and conditions of this Agreement conflict with the terms and\nconditions of any invoice, purchase order or purchase order acknowledgement\nplaced hereunder, the terms and conditions of this Agreement shall govern and\ncontrol.\n\n17.18 Survival.  The provisions of Sections 5.3(c), 8, 12.3, 13, 14, 15 and\n      --------                                                             \n16 shall survive the expiration or termination of this Agreement for any reason.\n\n\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by\ntheir duly authorized representatives effective as of the Effective Date.\n\nJETFAX, INC., a Delaware corporation  SAMSUNG ELECTRONICS\n                                      CORPORATION, a Korean\n\n\n\nBv: \/s\/ Edward R. Prince III          Bv: \/s\/ DONGJA KIM\n----------------------------          -------------------\nNAME:  Rudy Prince                    NAME: Dongja Kim\n       PRESIDENT                            DIRECTOR\n\n                                      -13-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n                                   EXHIBIT A\n\n                              JETFAX DELIVERABLES\n\n[*]\n\n                                      -14-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n                                   EXHIBIT B\n\n                             PRODUCT SPECIFICATION\n\n[*]\n\n                                      -15-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\nPRODUCT SPECIFICATION(CONTINUED)\n\n[*]\n\n                                      -16-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\nPRODUCT SPECIFICATION(CONTINUED)\n\n[*]\n\n                                      -17-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n                                   EXHIBIT C\n\n                                PROJECT SCHEDULE\n\n[*]\n\n                                      -18-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n                                   EXHIBIT D\n\n                              SAMSUNG DELIVERABLES\n\nA.   H\/W DESIGN AND PRODUCTION RELATED DOCUMENTATIONS\n\n1.   [*]\n\n2.   [*]\n\n3.   [*]\n\n4.   [*]\n\n5.   [*]\n\n6.   [*]\n\n7.   [*]\n\n\nB: S\/W RELATED DOCUMENTATIONS\n\n1.   [*]\n\n2.   [*]\n\n3.   [*]\n\n4.   [*]\n\n5.   [*]\n\n6.   [*]\n\n7.   [*]\n\n                                      -19-\n\n \n                                   EXHIBIT E\n\n                          COUNTRY FOR AGENCY APPROVAL\n\n\n\n**   UNITED STATES\n**   CANADA\n\n**   UNITED KINGDOM\n**   GERMANY\n**   ITALY\n**   SPAIN\n**   SWEDEN\n**   HOLLAND\n\n                                      -20-\n\n \n                                          [*] = CONFIDENTIAL TREATMENT REQUESTED\n\n                                   EXHIBIT F\n\nSAMSUNG LAMP Controller Component Cost Estimate Preliminary Costed Bill of\nMaterials\n \n \n                                   Target      Extended\nItem                Quantity      Unit Cost      Cost         Description\n------------------------------------------------------------------------------------\n                                                  \n[*]\n\n \n\n                                      -21-\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7940],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9613,9619],"class_list":["post-42230","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-jetfax-inc","corporate_contracts_industries-technology__hardware","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42230","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42230"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42230"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42230"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42230"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}