{"id":42630,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/oem-supply-agreement-spectra-inc-and-accent-color-sciences.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-supply-agreement-spectra-inc-and-accent-color-sciences","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-supply-agreement-spectra-inc-and-accent-color-sciences.html","title":{"rendered":"OEM Supply Agreement &#8211; Spectra Inc. and Accent Color Sciences Inc."},"content":{"rendered":"<pre>\n\n                                 SPECTRA, INC.\n                          ACCENT COLOR SCIENCES INC.\n                             OEM SUPPLY AGREEMENT\n\nIN THIS AGREEMENT, dated as of January 8, 1996, SPECTRA, INC. (\"SPECTRA\") and\nACCENT COLOR SCIENCES INC. (\"Customer\"), collectively the \"Parties\", agree as\nfollows:\n\n                                  DEFINITIONS\n\nI.   DEFINITIONS\n     -----------\n\n     1.   1. \"Affiliate\" means any corporation, partnership, association, or\nother entity with respect to which a party, directly or indirectly through a\nsubsidiary, has not less than a majority beneficial ownership, but only if that\ncorporation, partnership, association, or other entity expressly agrees in\nwriting to be bound by this Agreement, and only while that ownership\nrelationship exists.\n\n     1.2. \"Agreement\" means this Supply Agreement between Spectra and Customer.\n\n     1.3. \"Ancillary Hardware\" means any hardware, other than Printheads, that\nis part of a Print Engine, including but not limited to ink reservoirs, pressure\nregulators, head drive electronics, ink supply tubing, etc.\n\n     1.4. \"Customer's Field\" and \"Customer's Exclusive Field\" shall be defined\nin accordance with Sections 9.1.1 and 9.2.1 below, respectively.\n\n     1.5. \"Customer Product\" shall mean a digital printer, printing system or\nprinting subsystem, including a Mechanism and a Printhead, designed,\nmanufactured or marketed by or on behalf of Customer, on a retail, distribution\nor OEM sales basis, the Printhead(s) in which have been purchased from Spectra.\n\n     1.6  \"Customer Program Technology\" shall mean any Technology developed or\nacquired by Customer in the course of developing Customer Products, whether\npatented or unpatented including any know-how for practicing such Technology,\nwhich relates directly to the operation of and the interface to Spectra\nPrintheads, Inks or Hardware incorporating Spectra System Technology.\n\n \n     1.7.  \"Effective Date\" means [date of agreement].\n\n     1.8.  \"Hardware means Print Engines, Printheads and Ancillary Hardware\nsupplied by Spectra to Customer.\n\n     1.9.  \"Ink\" means printing inks and other materials used in printing\nprocesses which are used in Printheads.\n\n     1.10. \"Packaged Spectra Ink\" means Spectra Ink of formulations currently\nreferred to as \"Launch\" and \"Sable\" packaged in accordance with the Ink\nSpecifications attached as Exhibit 1.\n\n     1.11. \"Print Engine\" shall mean a device comprised of (i) components for\nmoving and controlling the movement of the Printhead and print media, paper\npath, and ink supply components (collectively, the \"Mechanism\"), (ii) a\nPrinthead, and (iii) optionally a power supply and covers.\n\n     1.12. \"Printhead\" shall mean a piezoelectric device with multiple jets that\neject droplets of Ink on demand.\n\n     1.13. \"Purchase Order\" means any purchase order that Customer issues to\norder Products from Spectra in accordance with this Agreement.\n\n     1.14. \"Products\" means Hardware and Spectra Ink supplied by Spectra to\nCustomer.\n\n     1.15. \"Purchase Year\" shall mean a twelve month period beginning on April\n1, of each year and ending on March 31 of the following year, except that the\nfirst Purchase Year shall begin on the date hereof and end on March 31, 1996.\n\n     1.16. \"Reserved Markets\" shall mean those markets and applications which\nSpectra has granted exclusive and\/or non-exclusive rights to other Spectra\ncustomers, as more specifically defined in Schedule 3.\n\n \n     1.17. \"Spectra Ink\" shall mean Ink manufactured by or on behalf of Spectra.\n\n     1.18. \"Spectra System Technology\" shall mean System Technology that Spectra\nowns or has the right to sublicense to Customer, except for patents licensed to\nSpectra from Xerox Corporation, on the Effective Date.\n\n     1.19. \"System Technology\" shall mean Technology for the manufacture and use\nof Print Engines, including but not limited to transparency enhancement, heated\nplaten print zone, offhead ink supply, and machine control electronics, but\nspecifically excluding any Technology related to the manufacture of Printheads,\nor Inks.\n\n     1.20. \"Spectra Future Systems Technology\" shall mean System Technology that\nSpectra develops or acquires after the Effective Date, or as to which Spectra\nacquires after the Effective Date the right to sublicense to Customer, except\nfor patents licenses to Spectra from Xerox Corporation.\n\n     1.21. \"Technology\" shall mean inventions, works of authorship, know-how,\ntrade secrets, manufacturing processes, designs, and specifications, and shall\ninclude patents, patent applications and copyrights.\n\n     1.22. \"Specifications\" means the specifications for Spectra Products\nattached in Exhibit 1, including all changes made in accordance with this\nAgreement.\n\n     1.23. \"Term\" means the period beginning on the Effective Date and ending on\nthe date on which this Agreement terminates under Section 12.\n\n     1.24. \"Total Requirements\" shall mean the aggregate of all Ink used by\nCustomer or sold by Customer for use with Spectra Printheads.\n\n\n                      GENERAL TERMS FOR SPECTRA PRODUCTS\n\n2.   FORECASTS: PURCHASE ORDER\n     -------------------------\n\n \n     2.1. Customer will order Spectra Products through the issuance of purchase\norders at least ninety (90) days in advance of the requested delivery dates. All\npreprinted terms and conditions on purchase orders are superseded entirely by\nthe terms and conditions of this Agreement. Each purchase order will adequately\nidentify the Spectra Product ordered by use of Spectra's product code, set forth\nthe requested quantity, and specify the requested delivery method and date.\nPurchase orders must be in writing and may be sent via facsimile to Spectra's\nthen current facsimile number.\n\n     2.2  Upon receipt of any purchase order submitted in accordance with this\nAgreement, Spectra will either: (i) accept the order, which will establish the\ndelivery date; or (ii) notify Customer of Spectra's inability to deliver Spectra\nProduct at the time or times requested. If Spectra cannot fulfill Customer's\npurchase orders as requested due to a shortage of any Spectra Product, Spectra\nshall use its reasonable efforts to satisfy Customer's purchase requirements as\nclosely as possible. If Spectra ships an order, Spectra will have been deemed to\nhave accepted it.\n\n     2.3  Spectra Products will be delivered to Customer in packaging reasonably\nacceptable to Customer, given shipment, warehousing and storage requirements.\n(Customer will advise Spectra in writing of any special packaging or labeling\nrequirements at the time in placing an order.) Delivery will be made FOB\nSpectra's manufacturing, warehousing or transshipment facility.\n\n     2.4. Customer will provide Spectra with a non-binding, rolling six (6)\nmonth forecast of Spectra Product requirements; provided, however, that orders\nplaced under Section 2.1 hereunder are noncancellable and non-deferrable\nbeginning ninety (90) days prior to scheduled delivery date. In general, Spectra\nrequires up to six (6) months advance notice to add significant additional\nmanufacturing capacity, and may not be able to meet orders as a result of\nchanges in or requirements in excess of those set forth in six-month rolling\nforecasts.\n\n\n                            HARDWARE PURCHASE TERMS\n\n3.   HARDWARE PRICES AND TERMS\n     -------------------------\n\n \n     3.1. Customer shall pay Spectra the amounts specified in Schedule I,\nsubject to the terms and provisions thereof, for each Spectra Hardware Product\nwhich Customer orders from Spectra under Section 2.\n\n     3.2. Customer will pay Spectra for each Spectra Hardware Product as\nfollows: (i) twenty-five percent (25%) no later than sixty (60) days prior to\nthe requested delivery date, (ii) twenty-five percent (25%) no later than thirty\n(30) days prior to the requested delivery date, and (iii) the balance within\nthirty (30) days after delivery to Customer by Spectra. All past due amounts\nshall accrue delinquency charges at the rate of one percent (I%) per month.\n\n4.   HARDWARE WARRANTIES AND REPAIRS\n     -------------------------------\n\n     4.1. Spectra warrants to Customer that:\n\n          4.1.1.  Each Spectra Hardware Product shall conform to the\nSpecifications and be free from defects in materials and workmanship for the\nlesser of 180 days after the Hardware Product is delivered to Customer's\ncustomer or 270 days after title to that Spectra product passes to Customer\nunder this Agreement;\n\n          4.1.2.  Each Spectra Hardware Product shall comply with the applicable\nrules and regulations of agencies defined in the Specifications.\n\n     4.2. THE WARRANTIES IN SECTION 4.1 ARE IN LIEU OF ALL OTHER SPECTRA\nHARDWARE PRODUCT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION\nTHE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.\n\n     4.3. If, within the warranty period specified in Section 4.1.1, a Spectra\nHardware Product does not comply with any warranty in Section 4.1 and Customer\nnotifies Spectra of such noncompliance prior to 30 days after the end of s u c h\nperiod, Customer may ship such product back to Spectra at Customer's expense.\nSpectra shall at its option promptly repair or replace that Spectra Product.\nSpectra shall pay the costs of any such repair or replacement, including\ntransportation costs incurred returning repaired or replaced products to\nCustomer unless (i) the Spectra Product is not defective, in which case Customer\nshall pay \n\n \nSpectra's reasonable costs of inspection and all transportation charges, or (ii)\nthe Spectra product is defective due to Customer's or any third party's damage,\nmisuse, abuse, or failure to use ink equivalent to the Spectra Ink, in which\ncase Customer shall pay all costs of repair or replacement and transportation.\nCustomer must mark each package it returns to Spectra under this Section 4.3\nwith a Returned Materials Authorization (\"RMA\") number, which Spectra shall\nfurnish to Customer on request, and shall include with each returned Spectra\nProduct a writing which specifies the reasons why Customer rejected that Spectra\nHardware Product.\n\n          4.4. Non-Warranty Hardware Repairs. Whenever practical, Spectra will\nprovide depot repair services on Hardware for repairs not covered by the\nforegoing warranty. Upon authorized return to Spectra's designated facility\nunder an RMA, Spectra shall repair Hardware at Customer's expense, on a time and\nmaterials basis, at Spectra's then current prices for parts and rates for\nservice. In cases where Hardware cannot be successfully repaired, Customer, at\nits option, may either replace the returned Hardware by purchasing a new unit\nfrom Spectra at then current prices or reimburse Spectra for its valid repair\nefforts and costs on the returned unit. Repairs are warranted by Spectra for the\nremainder of the original warranty period or ninety (90) days, whichever is\nlonger.\n\n                              INK PURCHASE TERMS\n\n5.   INK PURCHASE OBLIGATIONS\n     ------------------------\n\n     5.1. Customer will purchase its Total Requirements of Ink from Spectra,\nprovided that Customer may seek and utilize alternative or supplemental sources\nof Ink to the extent and for the period Spectra is unable to fulfill Customer's\nrequirements. In the event Customer identifies a lower priced supplier of Ink\nthat is the same quality and meets the functional Specification of Spectra Ink,\nCustomer may present Spectra with bona fide evidence of such lower price, and\ndocumentation that the competitive ink meets the Ink Specifications. Spectra\nshall have the right to meet such price. In the event Spectra meets such price,\nCustomer shall continue its purchases from Spectra. In the event Spectra elects\nnot to meet such competitive price, Customer may purchase Ink for use i n\nconjunction with Printheads from such alternative supplier. Any Inks purchased\nby Customer from a third party must be qualified within a reasonable timeframe\nby Spectra to  \n\n \nSpectra's functional Specification at Customer's expense in order for Spectra\nto maintain existing warranty coverage on Hardware used with such third party\nInks.\n\n6.   INK PRICES\n     ----------\n\n     6.1.  Prices for Packaged Spectra Ink shall be determined as set forth\nSchedule 1.\n\n     6.2. Customer shall pay Spectra for Ink as follows: (i) twenty-five percent\n(25%) no later than sixty (60) days prior to the requested delivery date, (ii)\ntwenty-five percent (25%) no later than thirty (30) days prior to the requested\ndelivery date, and (iii) the balance within thirty (30) days after delivery by\nSpectra. All past due amounts shall accrue delinquency charges at the rate of\none percent (I%) per month.\n\n7.   SPECTRA INK WARRANTIES\n     ----------------------\n\n     7.1. Spectra warrants to Customer that:\n\n          7.1.1.  Each unit of Spectra Ink shall conform to the applicable\n     Spectra Ink Specifications for the lesser of 180 days after the Ink is\n     delivered to Customer's customer or 270 days after title to that Spectra\n     Ink passes to Customer under this Agreement;\n\n          7.1.2.  Each unit of Packaged Spectra Ink shall comply with t h e\n     appropriate Ink specifications.\n\n     7.2  THE WARRANTIES IN SECTION 7.1 ARE IN LIEU OF ALL OTHER SPECTRA INK\nWARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED\nWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.\n\n          7.3.    If, within the warranty period specified in Section 7.1.1 a\nSpectra Ink Product does not comply with any warranty in Section 7.1 and\nCustomer notifies Spectra of such noncompliance prior to 30 days after the end\nof such period, Spectra shall promptly replace that unit. Spectra shall pay the\ncosts of any such replacement, including transportation charges, unless (i) the\nunit is not defective, in which case Customer shall pay all transportation\ncharges and, if  \n\n \nCustomer's determination that the unit was defective was not in good faith,\nSpectra's reasonable costs of inspection, or (ii) the unit is defective due to\nCustomer's or any third party's damage, misuse, or abuse in which case Customer\nshall pay all costs of repair or replacement and transportation. Customer must\nmark each package it returns to Spectra under this Section 7.3 with a Returned\nMaterials Authorization number, which Spectra shall furnish to Customer on\nrequest, and shall include with each returned unit (or with a returned lot or\nbatch, if the same defect occurs in more than one unit) a writing which\nspecifies the reasons why Customer rejected that unit, lot, or batch.\n\n                                    GENERAL\n\n8.   LICENSES AND ROYALTIES\n     ----------------------\n\n     8.1. Subject to the terms of this Agreement, (i) Spectra hereby grants to\nCustomer a worldwide right and license, with rights to sublicense only in\nconnection with Customer Products, under the Spectra System Technology to make,\nhave made, use and sell Customer Products in Customer's Field an d Customer's\nExclusive Field, and (ii) Customer hereby grants to Spectra a worldwide right\nand license, with rights to sublicense only in connection with Spectra products,\nunder Customer Program Technology to make, have made, use and sell Spectra\nProducts for resale outside of Customer's Exclusive Field. Except as set forth\nin Section 8.5 and 8.6, the license granted Customer herein expressly excludes\nthe right to manufacture Printheads or Inks.\n\n     8.2  Spectra agrees to indemnify, defend and hold Customer and its\ncustomers harmless from and against any claim against them by Howtek, Hitachi\nKoki and Dataproducts, Inc., their affiliates, successors or assigns, that a n y\nCustomer Print Engine that includes a Spectra Printhead infringes any patents o\nf such parties described in Schedule 2. This indemnity will apply only to those\nCustomer Print Engines including Spectra Printheads purchased from Spectra while\nCustomer is in good standing with respect to the payment of license fees and\nroyalties provided for in this Section 8.\n\n     8.3. Customer will pay to Spectra those royalties and license fees set\nforth in Schedule 2, \"Royalties and License Fees\", in connection with purchases\nof Hardware in which Customer uses phase change Ink, subject to the terms and\nconditions thereof. Customer shall not be obligated to pay royalties or fees \nset  \n\n \nforth in Part I of Schedule 2 to Spectra in excess of those due from Spectra to\nt h e third parties defined in Schedule 2 with respect to Customer's purchases\nfrom Spectra. In the event of a reduction in royalties payable by Spectra to\nsuch third parties, Customer's royalties shall be reduced accordingly. The\nroyalties set forth in Part 11 of Schedule 2 shall be suspended for so long as\nCustomer shall be purchasing its requirements of Ink from Spectra.\n\n     8.4. Customer will provide Spectra with a written report, no later than\nthirty (30) days following the end of each calendar quarter, describing for such\ncalendar quarter the number and type of Customer Product and Ink sold, leased or\notherwise disposed of, together with a detailed royalty calculation sufficient\nto establish a statement of royalties due under Spectra's agreements with\nparties identified in Schedule 2. Customer will pay any royalties due together\nwith such report.\n\n     8.5  Coverage for Spectra supply risk: Within 60 days of the execution of\nthis Agreement, Spectra will place in escrow, with a mutually agreed escrow\nagent (the charges of such agent to be borne by Customer), full details, to the\nextent known to Spectra and promptly updated for material changes by Spectra\nfrom time to time, of the compositions and methods of manufacture of the\nHardware Products and Inks to be supplied by Spectra to Customer. Customer may\ninspect such materials prior to placement in escrow by Spectra. The escrow\nagreement shall provide that the material to be placed in escrow shall be\navailable to Customer in the event that:\n\n     a.   a Supply Failure (as defined in this paragraph) shall have occurred.\n     In the event that Spectra shall be unable to fill an order for a particular\n     Hardware Product or Ink that Spectra is obligated to fill under Section 2.1\n     hereunder, Spectra shall so advise Customer as soon as practicable, and\n     shall advise Customer of the remedial action that it intends to take. If\n     such failure shall continue until twenty (20) days following the agreed\n     shipment date, Customer may send personnel to Spectra to observe the\n     progress toward correcting such failure to supply and to assist in\n     resolving the situation. In the event that such failure shall continue for\n     an additional 40 days, then a Supply failure shall be deemed to have\n     occurred; or\n\n \n     b.   Customer acquires and exercises rights under United States Code, Title\n     11, Section 365(n)(1)(B) (option for licensee, whose license has been\n     rejected by trustee in bankruptcy, to retain rights under the license).\n\n8.6  In connection with Section 8.5:\n\n          8.6.1   It is understood and agreed that if the Supply Failure relates\n     only to Hardware Products or Inks, but not both, the information to be\n     released from escrow will be only that related to Hardware Products or\n     Inks, as appropriate.\n\n     8.6.2  Customer may use escrowed information only to produce or have\nproduced those Hardware Products and Inks being supplied by Spectra to Customer\nimmediately prior to the occurrence of the condition giving rise to the release\nof escrowed information, as such Hardware Products and Inks existed at the time\nof the occurrence of the condition. In the event that a Supply Failure relates\nto fewer than all of the models of Hardware Products being supplied by Spectra,\nCustomer may only manufacture or have manufactured those models of Hardware\nProducts Spectra failed to supply. Upon the occurrence of the condition in 8.5.a\nabove with respect to Inks, Spectra shall arrange for supply of Inks to Customer\nby a third party at the request of Customer, at the same prices and terms at\nwhich Spectra supplies Customer. Upon the occurrence of the condition in 8.5.b\nabove with respect to Inks, Customer shall be free to negotiate with Coates\nReprographics, Inc. for the supply of ink directly from Coates to Customer,\nnotwithstanding any previous agreement involving Spectra, Customer o r Coates\nwhich would otherwise bar the supply of ink directly from Coates to Customer.\nAny manufacture by or for Customer of Hardware Products o r Inks, or acquisition\nof Inks from Coates, shall be subject to a royalty to Spectra of 10% of the\nresale price by Customer of such Hardware Products or Inks.\n\n     8.6.3  It is understood and agreed that Spectra does not have the right to\ngrant sublicenses for the manufacture of Printheads under its license with\nDataproducts and Hitachi-Koki and, accordingly, any exercise by or for Customer\nof the above rights in the event of Supply Failure will require Customer to\nobtain a license from them.\n\n \n9.   DISTRIBUTION RIGHTS AND EXCLUSIVITY\n     -----------------------------------\n\n     9.1  Non-Exclusive Distribution Rights: Customer may sell, lease and u se\nCustomer Products and components for Customer Products bearing Customer's or its\nAffiliates' marks, including without limitation worldwide marketing to any en d\nuser or remarketer, and use by Customer for the benefit of others; provided\nhowever, that (i) Customer's distribution rights are limited to Customer's\nField, (ii) Customer may only resell Printheads as integral components of\nCustomer Products, or as spare parts for Customer Products, and (iii) Customer\nmay not knowingly sell Spectra Ink for use other than in conjunction with\nCustomer Products.\n\n     9.1.1   For the purposes of this Agreement and subject to the Reserved\nMarket rights of other Spectra customers, Customer's Field shall be defined\nas the worldwide market for equipment, systems, services and supplies for\nfull color printing for commercial printing applications.\n\n          9.2   Exclusive Distribution Rights: Subject to Customer meeting its\nobligations under this Agreement (and specifically the provisions of Section\n9.2.1), and subject to the previously reserved market rights of other Spectra\ncustomers defined in Schedule 3, Spectra hereby grants to Customer the exclusive\nright to supply Customer Products into Customer's Exclusive Field.\n\n          9.2.1 For the purposes of this Agreement and subject to the Reserved\nMarket rights of other Spectra customers, Customer's Exclusive Field shall be\ndefined as the worldwide market for equipment, systems, services and supplies\nfor add-on modules or subsystems for adding color to the fiber based, paper, and\npaper-like output of the following production xerographic and electrographic\nprinting systems: IBM (3900), Xerox (4135, 4635, 4800, Docutek 135\/90), Siemens\n(2240), and substantially similar equipment of Delphax and Fujitsu (collectively\n\"the Exclusive OEM's\"). Customer's Exclusive Field shall be effective during the\nExclusive Period which is defined as beginning on the Effective Date and ending\no n December 31, 2002, unless ending earlier in accordance with Section 9.2.2.\nCustomer's Exclusive Field shall extend (i) to the successors and assigns, if\nany, of the Exclusive OEM'S, (ii) to products of the Exclusive OEM's which are\nextensions of or replacement models to the models listed in this Section 9.2.1.,\nand (iii) to new models of production xerographic and electrographic printing\nsystems of the Exclusive OEM'S, subject to Spectra's prior \n\n \nwritten approval, which approval shall not be unreasonably withheld.\nAccordingly, Spectra shall not knowingly supply Printheads, Print Engines or\nInks to parties other than Customer in Customer's Exclusive Field during the\nExclusive Period.\n\n          9.2.2  To maintain the exclusive rights under this Section 9.2,\nCustomer must (i) make the following scheduled payments, (ii) continue to\npurchase Customer's requirements of Ink from Spectra, and (iii) purchase the\nfollowing amounts of Printheads and Inks at contract prices during the calendar\nyears:\n\n     \n\nScheduled Payments:\n- ------------------------\n                                           \n     January 8, 1996                          \n     February 15, 1996                        \n     April 1, 1996                            [*]\n     July 1, 1996                             \n     October 1, 1996                          \n     January 1, 1997                          \n     April 1, 1997                            \n     July 1, 1997                             \n     October 1, 1997                          \n      \n \n \n     \n \nMinimum Volumes             Printheads:              Inks (Kilograms)\n- ----------------            -----------              ---------------\n                                               \n     1996                    \n     1997                    \n     1998                 [*]                      [*]                    \n     1999                                                                  \n     2000                                                                  \n     2001                    \n     2002                    \n      \n\n     Customer shall have a cure period of 45 days after any calendar year-end to\nmake up any purchase deficiencies hereunder and a cure period of 15 days to make\nup any payment deficiency hereunder.  In the event Customer fails to make a\n    \n[*] OMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST AND \n    FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION     \n\n\n\n \npayment or payment, under Section 9.2.2, Spectra may terminate the exclusive\nrights provided under Section 9.2.1 on forty-five days prior written notice if\nCustomer shall fail to cure such nonpayment within such forty-five day period:\nbut in the event of such termination, all other rights and obligations of the\nparties under this Agreement shall remain unchanged.\n\n9.2.3.  With respect to any payments received under this section 9.2, Spectra\nagrees to use fifty percent (50%) of the such funds for development activities\non Spectra Products for use in Customer Products. It is understood that during\n1995 and 1996, such activities shall be focused on modular carbon printhead\ndevelopment (i.e. the 256 jet printhead family demonstrated to Customer\npersonnel); the development activities for 1997 shall be as mutually agreed upon\nby the Parties.\n\n     9.3  For so long as Customer makes the scheduled payments set forth in\nSection 9.2.2. above and all royalty payments required under this Agreement,\nCustomer shall have the right, to the fullest extent within Spectra's rights,\n(I) to purchase from Spectra ink jet products developed, manufactured and sold\nby Spectra in the future, provided, however, that Customer may use such products\nin Reserved Markets: and (ii) to the license granted Customer in Section 8.1\nwhich shall include a license to Spectra Future System Technology, on the same\nterms and subject to all of the conditions of the license set forth in Section\n8.1, developed during the period Customer makes such payments. Thereafter\nthrough the initial Term of this Agreement, Customer shall continue to have\nrights to subsequent new products and the license in Section 8.1 shall continue\nto include Spectra Future System Technology so long as Customer pays to Spectra\na fee of $250,000 at the beginning of each calendar quarter and is current in\nall royalties due under this Agreement. In the event that Customer fails to make\na quarterly $250,000 payment after 1998 in accordance with this Section 9.3,\nCustomer's rights to participate in Spectra Future Systems Technology may be\nterminated by Spectra on forty-five days prior written notice, subject to\nCustomer's right to cure such nonpayment within such forty-five day period; but\nin the event of such termination, all other rights and obligations of the\nparties under this Agreement shall remain unchanged, including but not limited\nto the right to purchase Spectra Products other than those embodying Spectra\nFuture Systems Technology.\n\n     9.4  To the extent Customer may directly or indirectly market Customer\nProducts, Spectra Products, or other items under this Agreement, Customer may do\nso under any present or future Customer or Affiliate trademark or product\n\n \ndesignation. Customer shall refer to any product so designated, in all Customer\nsales proposals, advertising literature, and otherwise, as a Customer or\nAffiliate product. Customer may ship those products in containers bearing the\nCustomer or Affiliate logo, class and serial number of the product, and all\nother information or markings desired by Customer or required by law.\n\n10.  CONFIDENTIALITY\n     ---------------\n\n     10.1  \"Confidential Information\" means all information  which one\nparty (\"Discloser\") discloses to the other party (\"Recipient\") during the term\nof this Agreement: (I) in documents or other tangible materials clearly marked\n\"CONFIDENTIAL\", or (ii) orally, or in any other intangible form, when first\ndisclosed to the Recipient, if at that time the Discloser tells the Recipient\nthat the information is confidential and if the Discloser describes the\ninformation in writing or other tangible materials clearly marked \"CONFIDENTIAL\"\nand delivers them to the Recipient within 10 calendar days after the information\nis first disclosed to the Recipient. \"Confidential Information\" does not include\nany information which the Recipient can show: (a) the Recipient knew at the time\no f disclosure, (b) the public knows or which is or becomes readily\nascertainable by the public, and through no wrongful act of the Recipient, (c)\nthe Recipient receives from a third party without breaching an obligation owed\nto the Discloser, if the third party does not restrict the Recipient from\ndisclosing that information, (d) is independently developed by or for the\nRecipient, the Discloser discloses to a third party without similar restrictions\non disclosure, or (e) is required to be disclosed by law, provided, however,\nthat in the event Recipient is ordered to disclose the Discloser's Confidential\nInformation pursuant to a judicial or governmental request, requirement or\norder, Recipient shall immediately, and in any event prior to complying\ntherewith, notify the Discloser and take reasonable steps to assist Discloser in\ncontesting such request, requirement or order o r otherwise protecting\nDiscloser's rights, and Recipient may not disclose any Discloser Confidential\nInformation in response to any law, rule or regulation, including disclosure\nrules of the Securities and Exchange Commission, without the Discloser's written\nconsent in each case, which consent shall not be unreasonably withheld or\ndelayed.\n\n     10.2.  During the Term and for three years after the Term, the Recipient\nshall use reasonable efforts to prevent the disclosure of any Confidential\nInformation to any other person, subject to Section 10.1. All materials\ncontaining Confidential Information delivered by the Discloser under this\nAgreement are and shall remain the property of the Discloser.  At the\nDiscloser's written request upon termination of the Recipient's right to possess\nthe Discloser's Confidential Information, the Recipient shall promptly return to\nthe Discloser, or destroy and\n\n \ncertify the destruction of, all those materials and any copies.\n\n     10.3.  Except as this Agreement expressly provides, this Agreement does\nnot: (i) restrict either party from developing new products, improving existing\nproducts, or marketing any new, improved, or existing products; or (ii) commit\neither party to disclose any particular information or to develop, make, use,\nbuy, sell, or otherwise dispose of any existing or future product, or to favor \nor recommend any product or service of the other party.\n\n     10.4.  This Agreement does not enlarge, diminish, or affect the rights and\nobligations that either party may have or come to have under any other written\nagreement they both sign, or, except as this Agreement expressly provides, with\nrespect to any patent or copyright of either party.  Except as this Agreement \nor such other written agreement specifically provides, there shall be no\nrestrictions on the use or disclosure of any information the parties exchange at\nany time, in the past or in the future, other than restrictions that either\nparty may independently have a right to assert under the patent, copyright, or\nmask work laws.\n\nII.  INFRINGEMENT\n     ------------\n\n     11.1.  Spectra shall promptly investigate and defend at its expense all\nclaims that the manufacture, use, maintenance, sale or other disposition of any\nSpectra Product infringes, induces the infringement of, or otherwise violates\nany patent, copyright, mask work, trademark, trade secret, or proprietary or\nother information of any third party, and Spectra shall pay and discharge all\njudgments or decrees against Customer which result from those claims.  Spectra\nmay, with Customer's consent (which Customer shall not unreasonably withhold),\nsettle any such claim on terms of Spectra's choosing, if those terms do not\nconflict with this Agreement; provided, however, that Spectra shall not be\nobligated under this Section 11.1 to the extent (i) Customer fails to give\nSpectra prompt notice of the claim, appropriate authority to settle or defend\nit, or the information and assistance necessary to conduct the defense, or (ii)\nthe claims of infringement arise from or are based upon (A) Customer's or any\nthird party's enhancements, modifications, alteration or implementation of a\nSpectra Product, or (B) the combination of a Spectra Product with any device\nSpectra did not directly furnish to Customer.\n\n \n     11.2.  If (i) a court, agency, or arbitrator having jurisdiction holds\nthat, or Spectra agrees in writing with any third party that, any Spectra\nProduct infringes a patent, copyright, mask work, or trademark or involves an\nunlawful use of a third party's proprietary or other information, (ii) an\ninjunction issues against Customer's manufacturing, use, or marketing of a\nSpectra Product, or (iii) in Spectra's opinion that Spectra Product is likely to\nbecome the subject of an infringement claim, then Spectra shall at its expense\nuse reasonable efforts to: (x) obtain for Customer rights sufficient in scope to\nallow Customer to continue to make, use, sell, and market that Spectra Product,\nor (y) replace or modify that Spectra Product so that it becomes noninfringing.\n\n     11.3.  Spectra shall not be liable under this Section 11 for any claim, and\nCustomer's rights under Section 11.2 shall not attach to a claim, to the extent\nthat claim is based on information, devices, or processed furnished by someone\nother than Spectra.\n\n12.  TERM AND TERMINATION: BANKRUPTCY\n     --------------------------------\n\n     12.1.  This Agreement is effective on and after the Effective Date and\nshall expire seven years after the Effective Date, unless earlier terminated\npursuant to Section 12.2 below.  Customer shall have the right to renew this\nAgreement for an additional period of seven years.  If Customer wishes to\nexercise such right, it shall provide Spectra with written notice of such\nexercise at least one year prior to the end of the initial term.\n\n     12.2.  This Agreement may be terminated prior to its expiration if any of\nthe following occur:\n\n            12.2.1.  Spectra and Customer may at any time agree in writing\nto terminate this Agreement.\n\n            12.2.2.  If Customer fails without cause to pay Spectra any\namount due Spectra, Spectra may terminate this Agreement if Customer does not\ncure that failure within 45 days after Customer receives a written notice from\nSpectra stating the facts on which Spectra based its determination that such a\nfailure occurred.\n\n            12.2.3. If either party breaches a material obligation of this\n\n \nAgreement, and such breach is not cured within 90 days after receipt of the\nnotice from the non-breaching party, the non-breaching party may terminate this\nAgreement.\n\n     12.3.  All financial obligations which had accrued but which were unpaid as\nof the effective date of termination shall survive termination. All financial\nobligations which would have accrued after the effective date of termination\nshall terminate. All then-outstanding forecasts and Purchase Orders shall\nterminate without liability or consequence to either party as of the effective\ndate of termination. All licenses granted to Customer hereunder shall terminate.\nThe license granted to Spectra in Section 8.1 shall survive termination.\n\n13.  DISPUTES\n     --------\n\n     13.1.  Except for disputes concerning Spectra's obligations under Section\n11.1, and except as otherwise provided in this Agreement, Customer and Spectra\nshall settle by arbitration any controversy or claim between them arising\ndirectly or indirectly under this Agreement, whether based on contract, tort,\nfraud, misrepresentation, or other legal theory. The arbitration shall occur in\nMassachusetts, under the then current rules and supervision of the American\nArbitration Association. If the dispute involves a claim for money in the amount\nof $1,000,000 or less and does not involve any claims relating to ownership,\nuse, or disclosure of intellectual property (other than a claim of unlawful\nownership, use or disclosure of intellectual property arising solely from a\nfailure to pay a license fee or royalty), the arbitration shall be before a\nsingle arbitrator whom Customer and Spectra shall select from a panel of persons\nknowledgeable in business information and data processing systems; otherwise,\nthe arbitration shall b e before three arbitrators, one selected by Customer,\none selected by Spectra, and the third selected by the two arbitrators to\nselected. The arbitrator or arbitrators shall not have the power to award\npunitive or exemplary damages. The decision and award of the arbitrator or\narbitrators shall be final and binding and the award rendered may be entered in\nany court having jurisdiction. Customer and Spectra shall each pay its own\nattorney's fees associated with the arbitration, and shall pay the other costs\nand expenses of the arbitration as the rules of t h e American Arbitration\nAssociation provide.\n\n     13.2.  Spectra and Customer may each petition a court of law for injunctive\nrelief to protect its respective intellectual property.\n\n \n     13.3.  Connecticut law shall govern the interpretation and enforcement of\nthis Agreement, except that the Federal Arbitration Act shall govern the\ninterpretation and enforcement of Section 13.1. If one party files a court\naction alleging claims subject to binding arbitration under Section 13.1, and\nthe other party successfully stays the court action or compels arbitration of\nthe claims, or both, the party filing the court action shall pay the other\nparty's costs and expenses, including attorneys' fees, of obtaining such stay or\ncompulsion.\n\n     13.4.  Neither Customer nor Spectra may bring any action, regardless of\nform, related to this Agreement, more than two years after the cause of action\naccrues.\n\n     13.5.  The duty to arbitrate under Section 13.1 extends to any director,\nofficer, employee, agent, subsidiary, or Affiliate making or defending any claim\nwhich would otherwise be arbitrable.\n\n     13.6.  Each part of this Section 13 is severable. A holding that any part\nof this Section is unenforceable shall not affect the duty to arbitrate under\nSection 13.1 or any other part of this section.\n\n14.  MISCELLANEOUS\n     -------------\n\n     14.1.  EXCEPT TO THE EXTENT OF SPECTRA'S OBLIGATIONS UNDER SECTION 11 OF\nTHIS AGREEMENT, NEITHER SPECTRA NOR CUSTOMER SHALL BE LIABLE TO THE OTHER FOR\nANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION\nLOST PROFITS) UNDER THIS AGREEMENT.\n\n     14.2.  Spectra and Customer are contractors independent of one another.\nNothing in this Agreement is intended to or shall constitute either party as a n\nagent, legal representative, partner, joint venture, franchisee, employee, or\nservant of the other for any purpose. Neither party shall make any contract,\nagreement, warranty, or representation on behalf of the other party, or incur\nany debt or other obligation in the other party's name, or act in any manner\nwhich has the effect of making that party the apparent agent of the other; and\nneither party shall assume liability for, or be deemed liable as a result of,\nany such action by the other party. Neither party shall be liable by reason of\nany act or omission of the other party in the conduct of its business or for any\nresulting claim or judgment, including \n\n \nwithout limitation those arising from oral or written statements the other party\nmakes in connection with its marketing efforts (other than statements made in\nreliance on written information which the first party furnishes to the other\nparty).\n\n     14.3.  Neither Spectra nor Customer may assign this Agreement or any of\ntheir respective rights and obligations under this Agreement without the express\nwritten consent of the other party before that assignment, except that either\nparty may without the other's prior consent assign this Agreement to a successor\nin ownership of all or substantially all of its assets or the product line that\nincludes the Customer Products.  Any assignment under this Section 14.3 will not\nrelieve the assigning party of its outstanding financial obligations, if any,\nincurred before the assignment.  This Agreement shall be finding upon and inure\nto the benefit of the parties and their respective successors and permitted\nassigns.\n\n     14.4.  A waiver of a default of any term of this Agreement shall not be\nconstrued as a waiver of any later default of that provision or as a waiver of\nthe provision itself.  A party's performance after the other party's default\nshall not be construed as a waiver of that default.\n\n     14.5.  Each term of this Agreement is severable.  If a court, agency, or\narbitrator having jurisdiction determines that any term is invalid or\nunenforceable under applicable law, that determination shall not affect the\nother terms of this Agreement, which other terms shall continue to be enforced\nas if the invalid or unenforceable provisions were omitted.\n\n     14.6.  Except as this Agreement otherwise provides, no amendment to this\nAgreement shall be binding unless agreed to in writing executed by Spectra and\nCustomer, and no approval, consent, or waiver shall be enforceable unless signed\nby the granting party.  The pre-printed terms of any order (including without\nlimitation a Purchase Order), acknowledgment, or other form do not amend this\nAgreement.  No document shall be deemed to amend this Agreement by implication.\n\n     14.7.  This Agreement (including the attached Exhibits) states the complete\nagreement between Spectra and Customer concerning this subject, and supersedes\nall earlier oral and written communications between Spectra and Customer\nconcerning this subject.\n\n \n          14.8.  All notices required or permitted under this Agreement and all\nrequests for approvals, consents, and waivers must be in writing and must be\ndelivered by a method providing for proof of delivery to the addresses listed\nbelow:\n\nIn the case of Customer:\n\n     Chief Executive Officer\n     Accent Color Sciences, Inc.\n     Riverview Square\n     99 East River Drive\n     East Hartford, CT 06108\n     Fax Number:  860-290-4858\n\n     with a copy to:\n\n     Willard F. Pinney, Jr.\n     Murtha, Cullina, Richter and Pinney\n     CityPlace I - 185 Asylum Street\n     Hartford, CT 06103-3469\n\n     Fax Number:  860-240-6150\n\nIn the case of Spectra:\n\n     Chief Executive Officer\n     Spectra, Inc.\n     Etna Road\n     PO Box 68C\n     Hanover, NH 03755\n     facsimile:   (603) 643-5430\n\n     with a copy to:\n\n     Gregory E. Moore, Esq.\n     Ropes &amp; Gray\n     One International Place\n     Boston, MA 02110-2624\n\n \n     facsimile:  (617) 951-7050\n\nAny notice or request shall be deemed to have been given on the date of receipt.\n\nEither party may change its address for the purposes of this Agreement by giving\nthe other party written notice of its new address.\n\n14.9. All rights granted to Customer under this Agreement may exercised by any\nAffiliate of Customer agreeing to be bound by this Agreement.\n\n\nACCEPTED BY:\nSPECTRA, INC.                           ACCENT COLOR SCIENCES, INC.\n\nBy: \/s\/ Ronald F. Borelli               By: \/s\/ Richard J. Coburn\n\n\nPrinted: Ronald F. Borelli              Printed: Richard J. Coburn\n\n\nTitle: CEO                              Title: CEO\n\n\nDate: January 22, 1996                  Date: January 8, 1996\n\n\n \n                                                                      SCHEDULE 1\n                                                                      ----------\n                          PRICES FOR SPECTRA PRODUCTS\n                          ---------------------------\n\n                                   HARDWARE\n                                   --------\n     \n \n                                                  THREE MONTH\nPART NUMBER               DESCRIPTION              ORDER QTY          UNIT PRICE\n- -----------               -----------             -----------         ----------\n                                                              \nIIDS961-631-080495     Commercial  printhead          [*]                 [*]   \n                                                                 \n                                                                 \n                                                      [*]                 [*]  \nOIIS-230-1-1-631-      Reservoir  assembly                        \n080495                                                            \n                                                                                \n                                                                               \nPR-200S-I-OUT-631-     Regular assembly                                        \n080495                                                [*]                 [*]   \n                                                                  \n                                                                  \nUM-014-631-080495      Umbilical ink tube             [*]                 [*]   \n                                                                               \nUM-015-631-080495      Umbilical ink tube             [*]                 [*]   \n      \n\n                                     INKS\n                                     ----\n\nPackaged Spectra Ink: Cyan. Yellow, &amp; Magenta ink, packaged in the form of ink \n\"pucks\" in plastic bag:\n     \n \n        QUARTERLY\/COLOR\/KILOGRAM                  PRICE\/KG\n        ------------------------                  --------\n                                                \n           0 TO 2,000 KG                             [*]      \n                                                                           \n           2,000 to 10,000                           [*]             \n                                                                     \n           10,000 to 50,000                          [*]              \n                                                                      \n           50,000 to 1000,000                        [*]\n      \n\nNotes:\n- ------\n1. Volumes are per color per calendar quarter\n2. Packaging is same as for wide format customer\n3. Customer pays for ink molds, custom artwork, and any custom packaging\n                                                 \n[*] OMMITTED INFORMATION SUBJECT TO PENDING CONFIDENTIAL TREATMENT REQUEST\n    AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION      \n\n                                                 \n\n \n                                                                      SCHEDULE 2\n                                                                      ----------\n                          ROYALTIES AND LICENSE FEES\n\n                                    Part 1\n\n    \n                                      [*]      \n\n    \n[*]  OMITTED INFORMATION CONSISTING OF TWO (2) PAGES SUBJECT TO PENDING\nCONFIDENTIAL TREATMENT REQUEST AND FILED SEPARATELY WITH THE SECURITIES AND\nEXCHANGE COMMISSION.     \n\n \n                                                                      Schedule 3\n\n                          RIGHTS RESERVED BY SPECTRA\n                              TO OTHER CUSTOMERS\n\n                                     [ * ]\n\n    \n[ * ]  OMITTED INFORMATION CONSISTING OF THREE (3) PAGES SUBJECT TO PENDING\nCONFIDENTIAL TREATMENT REQUEST AND FILED SEPARATELY WITH THE SECURITIES AND\nEXCHANGE COMMISSION.      \n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6552],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9613,9619],"class_list":["post-42630","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-accent-color-sciences-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\/42630","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=42630"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42630"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42630"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42630"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}