EXHIBIT 10.1


 


InFocus Corporation


 


And


 


Hon Hai Precision Industry Company Limited


 


 


Manufacturing and Supply Agreement


 


1

















 


This
Agreement, having an “Effective Date” of September 1, 2005 is made and entered into
by and between:


 


InFocus Corporation, a
corporation organized under the laws of Oregon, U.S.A., having its principal
office at 27700B SW Parkway Avenue, Wilsonville, Oregon 97070, USA (herein “InFocus”);
and Hon Hai Precision Industry Co. Ltd., a corporation organized under the laws
of Taiwan, with registered trade name Foxconn, having its principal office at 2
Tzu Yu St. Tu-Cheng City, Taipei, Taiwan (herein “Supplier”).


 


Whereas, Supplier
manufactures certain product for InFocus, this Agreement sets forth the terms
and conditions under which InFocus will purchase from Supplier and Supplier
will manufacture and sell to InFocus Products, Service Parts and perform
related services.


 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed in duplicate by their duly
authorized representatives on the dates set forth below, effective as of the
day and year first above written.


 


	
  ACCEPTED
  AND AGREED:

  	
  ACCEPTED
  AND AGREED:

  	
   

  



 


	
  Hon
  Hai Precision Industry Co, Ltd

  	
   

  	
  InFocus
  Corporation

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  
	
             (Signature)

  	
   

  	
             (Signature)

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
  Name

  	
   

  
	
                (Type
  or Print)

  	
   

  	
                   (Type
  or Print)

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
  Date

  	
   

  
									



 


2

















 


Section
1 : Definitions


 


“Authorized
Purchaser” means
InFocus, its affiliates or “an entity authorized by InFocus” in writing to procure
Product and Services under this Agreement. Authorized Purchasers are listed in
Exhibit B – Authorized Purchasers


 


“Bill
of Materials” or “BOM”
means the bill of materials approved by InFocus, which includes all Materials
required to produce particular goods - product , commodity or service unit.


 


“InFocus
Logistics Center” – refer
to Exhibit A.


 


“PO
Lead Time” means the
amount of time identified in this document between the placement of a purchase
order and the time the Product leaves the factory.


 


“Transit
Lead time” means the
amount of time identified in this document between the Product leaving the
Supplier factory and arriving at the destination.


 


“Materials”
means materials,
components and subassemblies for specified Product, as identified in the BOM,
which Supplier or sub tier suppliers provide.


 


“MPS” means the master production schedule, issued
by InFocus for the Product.


 


“Product”
means any and all
goods, devices, or products requested by InFocus for manufacture by Supplier
under the terms of this Agreement.


 


“Quality
Requirements” means
the quality requirements for the Product specified in this Agreement or as
InFocus otherwise specifies in writing.


 


“Ship
Date” means the date
specified by InFocus on which Supplier shall ship Product.


 


“Specifications”
means the design
requirements for the Product agreed to in writing by Supplier and InFocus.


 


“Test
Equipment” means test
fixtures and equipment required to produce Product and verify that Product meet
Specifications and Quality Requirements.


 


“Tooling” means the development and manufacturing
tooling and inspection equipment required to produce Product.


 


3

















 


Section
2 : Pre – Production


 


2.0 Disclosure
Supplier shall declare the complete details under which it trades in all
regions in the world, including the names of the companies and the trading
addresses.


 


2.1 Confidentiality. Both parties agree to maintain all Confidential
Information and intellectual property provided by either party in confidence
and not to disclose such information to any other person or use such
information for any purpose other than in connection with this Agreement,
without either party’s prior written consent. The parties recognize that
Supplier and its personnel will, in performing this Agreement, necessarily
become conversant with certain trade secrets and other confidential or
proprietary information regarding InFocus and/or the Products (all of such
information, trade secrets and other proprietary information, except for any
portion thereof that becomes generally available to the public other than by
reason of disclosure in violation of this Agreement, is referred to in this Section
2.1 as “Confidential Information”). Supplier acknowledges and agrees that all
Confidential Information is and shall continue to be the exclusive and
permanent property of InFocus, whether or not prepared in whole or in part by
Supplier and whether or not disclosed or entrusted to Supplier in connection
with the performance of its duties hereunder.


 


Each
party shall deal with Confidential Information so as to protect it from
disclosure with a degree of care not less than that used by it in dealing with
its own information intended to remain exclusively within its knowledge and
shall take reasonable steps to minimize the risk of disclosure of Confidential
Information which shall include, without limitation, ensuring that only those
persons who have a bona fide need to know such Confidential Information for
purposes permitted or contemplated by this Agreement shall have access thereto.


 


Within
thirty (30) days after the termination of this Agreement, each party shall (and
shall cause its Affiliates’ Representatives and its Affiliates to) return to
the other party or destroy all related documents and tangible items then in its
possession which it has received from the other party or any affiliate or
representative thereof pertaining, referring or relating to the other party’s
Confidential Information.


 


2.2 Quality Verification Audit


Supplier agrees that
InFocus can audit the Supplier location and manufacturing process with ten (10)
business days notice on a twice yearly basis. InFocus will provide results of audit
to Supplier within ten (10) business days of the Audit. InFocus requires that
one member of the Supplier quality team participates in the audit procedures.


 


2.3 Supplier Point of
Communication, and Escalation.


InFocus will designate a
Supplier manager as a contact point for all communications related to both
Product and the Supplier. Supplier must also provide a senior Supplier
representative as a contact point for InFocus.


 


2.4 Documentation and Change
Process.


InFocus requires a
complete set of up to date documentation on its system in support of the
manufacture and design of its products, this includes manufacturing processes,
bills of materials, suppliers, technical specifications etc. InFocus and
Supplier shall use a pre-agreed process to communicate changes it seeks in its
processes. InFocus must have final approval on all changes suggested by
Supplier. Supplier must implement all changes requested by InFocus within 5
days from receipt of the request for change or acknowledge receipt of the
request in writing, and highlight concerns.


 


2.5 Response Times. Relative to product, production and quality issues,
Supplier shall promptly provide InFocus with any requested information and
respond to any notice or request that InFocus may classify as an “emergency”
within two (2) hours, “urgent” within six (6) hours, and “request for
information” within twenty-four (24) hours. Purchase orders must be
acknowledged in writing within 24 hours.


 


2.6 Specifications.
Supplier shall ensure that InFocus is in receipt of the latest copies of the
Product and component technical specifications.


 


2.7 Certifications.
InFocus will provide Supplier with a list of required Product and or component
certifications by ship to destinations. InFocus and Supplier will agree who is
responsible for obtaining each certification and in what timeline. This
agreement will be documented on a product-by-product basis.


 


2.8 Quarterly Business Reviews.
Supplier will be provided with a copy of the InFocus quarterly business review
(QBR) format as detailed in Exhibit E – QBR Reporting. Supplier will prepare
data for review and return to InFocus the first week of each new quarter
(InFocus calendar, provided). InFocus will review and highlight areas of
disagreement or concern prior to QBR. InFocus will schedule a review each
quarter. Reviews will alternately be scheduled in Supplier or InFocus location.


 


4

















 


2.9 ISO Certification.
Supplier shall ensure that all its sites and manufacturing facilities used to
perform services under this agreement are ISO 9000/ISO 14001 certified and
provide certificates of authenticity to InFocus. If a location designated to
provide products under this Agreement is not ISO certified, Supplier must take
steps to obtain certification and provide documentary evidence of actions to
InFocus. Supplier shall communicate a corrective action plan and implementation
dates to InFocus with seven (7) days from notification that a site or facility
has failed an ISO audit or an InFocus audit.


 


2.10 Product Cost Management. *  From time to time InFocus
will provide cost reduction opportunities to Supplier. Supplier must work with
InFocus to implement this cost reduction opportunities.


 


2.11 Component Packaging.
Supplier shall develop the packaging specifications for all Products and
components manufactured by the Supplier. These solutions must be the most
cost-effective packaging and transportation solutions, must be designed in
compliance with all laws and within the safety and engineering specifications
provided by InFocus. Prior to tool development, specifications must be approved
in writing by InFocus.


 


2.12 Suppliers and Component
sourcing. Supplier must provide complete BOM details to
InFocus. This must cover component part numbers, authorized manufacturers and
specifications. All amendments to this list through out the term of this
Agreement must be communicated to InFocus. BOM details must be refreshed at
least once a month during Product development.


 


2.13 Design Services.
During the design phase of the project, Supplier will provide InFocus with the
following information on a regular basis. Supplier will also appoint a project
manager to cover both product development and new products introduction
(operations). Both will work with InFocus to ensure an on time ramp.


 


 


	
  Report name

  	
   

  	
  Regularity

  
	
  Ramp schedule (volume
  and timelines and issues)

  	
   

  	
  Weekly

  
	
  Engineering status

  	
   

  	
  Weekly

  
	
  NRE charges (budget vs
  actual)

  	
   

  	
  Monthly

  
	
  Product cost (Bom Cost)

  	
   

  	
  Monthly

  



 


InFocus regards the
commitment to ramp date as key. Any deviations from the ramp date must be fully
explained and all avenues exhausted to resolve issues as they arise.


 


2.13.1 If the Design services provided by Supplier include
development of new product lines which are not merely insubstantial
modification of the current Product, the parties agree to enter into a Design
Services Agreement. Any product development under this Agreement, including
enhancements and improvements to the InFocus Products shall be deemed Product
Design and such Product Design and all rights to such Product Design shall be
owned by InFocus.


 


2.14 Lead Times. All
current material lead times and manufacturing lead times must be published to
InFocus in accordance with the format laid out in Exhibit J. All updates to lead
time information must be communicated and accepted by InFocus.


 


2.15 NRE Charges. *


 


2.16 Ownership of Tooling.
* In the event that InFocus wishes to move tooling from one location to
another, Supplier will actively engage in the transfer. Supplier will obtain
InFocus approval prior to moving any tooling and shall periodically update all
tooling locations.


 


2.17
Subtier Supplier Lead Times. Supplier will provide InFocus with an updated list of subtier supplier
leadtimes on a monthly basis. Changes to terms within the sub-tier base must be
communicated to InFocus.


 






*Certain
information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.


 


5

















 


2.18 Design and Intellectual Property Ownership.
InFocus and Supplier agree that the rights to the Intellectual Property
developed and owned by InFocus prior to the effective date of this Agreement
shall remain the Intellectual Property rights of InFocus and that the
Intellectual Property rights to all improvements or enhancements to the Product
Design made by or for Supplier at any time under this Agreement shall be deemed
“works for hire” performed solely for the benefit of InFocus, and Supplier
hereby assigns, transfers and releases to InFocus all of Supplier’s right,
title and interest in such improvements or enhancements and * . If and to the
extent that applicable law does not permit or would limit the foregoing
assignment, transfer and release, Supplier hereby waives irrevocably and
without further payment the assertion of any residual Intellectual Property
claims it may have against InFocus or any of its officers, directors,
employees, agents, affiliates or authorized assignees or licensees. Any and all
intellectual property rights in and to the Product Design shall belong to
InFocus regardless if new or jointly created unless it relates specifically to
Supplier’s manufacturing process.


 


2.19 Intellectual Property shall mean any invention,
discovery, concept, expression or work, whether or not patented or patentable,
including, without limitation, discoveries, compositions, know-how, procedures,
technical information, processes, methods, devices, formulas, protocols, techniques,
designs and drawings, any physical embodiment thereof, and any patent (and
applications therefore), copyrights (and applications therefore), trademarks,
industrial designs and utility models, trade secret or other intellectual
property right related thereto, including each party’s Confidential Information
and trade secrets.


 


2.20
Initial Inventory Purchase. InFocus will direct Supplier to purchase
certain work-in-progress and materials specified by InFocus on or before the
date of Supplier’s production start. This purchase includes without limitation,
excess finished raw materials at past suppliers’ locations and long lead-time
materials. Supplier will also assume from past suppliers certain open purchase
orders for materials matching the BOM as specified by InFocus.


 


Section
3: Production


 


3.0
Product Lead Time.
From a standing start, Product lead time will be 8 weeks


 


3.1
Forecasts, Planning and Flexibility. InFocus will provide a 12 month rolling MPS plan to Supplier on Monday
each week. The first three months of the forecast will be broken down by week.
The last nine months will be in monthly buckets. The forecast is a shipment
plan from the factory and therefore must be offset by manufacturing/material
lead time in order to ensure materials and production take place in time to
meet the shipment deadlines. All lead times used must be those published to
InFocus.


 


A
confirmation of receipt must be provided immediately against each MPS provided
on a Tuesday. Within 3 days from receipt of each MPS a response
plan must be provided to InFocus, no later than 5:00 p.m. Thursday.


 


Supplier
will place purchase orders for components to lead-time to cover the MPS needs.
Where component shortages are revealed, the Supplier will drive materials to
the MPS.


 


3.2 Contract
Purchase Order. *


 


	
  Adjustments Period

  	
   

  	
  Allowable Increase/Decrease

  
	
   

  	
   

  	
   

  
	
  Weeks
  1 & 2

  	
   

  	
  *

  
	
  Weeks
  3 & 4

  	
   

  	
  *

  
	
  Weeks
  5 through 8

  	
   

  	
  *

  
	
  8 weeks +

  	
   

  	
  *

  



 


*


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


6

















 


*


 


*


 


3.2A Call-off Purchase Order. InFocus may use a call-off purchase order
for each individual shipment shipped from the point of manufacture to specific
destination. These purchase orders will be X-referenced to the contract
purchase orders detailed above.


 


3.3 Cancellations and Liability. *


 


3.4 On-Time Shipments. Supplier will make
Products available to InFocus’ freight forwarder by shipment date specified by
InFocus. If Supplier is unable to meet the specified ship date, Supplier will
promptly notify InFocus and propose a revised ship date. If shipment is delayed
more than 1 day, InFocus may require Supplier to pay any incremental freight
charges required to ship the delayed Products using priority airfreight
delivery.


 


3.5 Integration with Freight Forwarder. Supplier will work with an
appointed InFocus freight forwarder. All arrangements for pick up and freight
space must be made between freight forwarder and Supplier. Supplier will work
only with freight forwarders approved or appointed by InFocus. All freight
quotes must be approved by InFocus. In the case of any disputes arising between
a freight forwarder and Supplier during the course of performing InFocus
business, InFocus should be notified.


 


InFocus
may or may not decide to settle the freight bill directly with the forwarder
and will communicate the requirements at the time of PO placement.


 


3.6 Terms of Sale.


*


 


3.7 Terms of Payment. The standard term of
payment will be * days from receipt of Product by InFocus at the ILC. InFocus
reserves the right to withhold payment, if invoice is not presented in
pre-agreed format. InFocus shall not withhold payment in whole or in part for
items which are not in dispute.


 










*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


7

















 


3.8 Quality Standards. InFocus shall provide field failure information to
Supplier. In
addition, proposed test processes for the InFocus Products must be supplied to
InFocus for review. InFocus and Supplier must agree upon the following:


 


a)              if the tests coverage is
acceptable, if not, what incremental tests must be put in place.


b)             Acceptable threshold of
results for each test within a manufacturing period.


c)              Format of notification, if
results dip below this threshold


d)             Coordination of decision
on corrective action, implementation timeline, and time to bring results back
to threshold


e)              Hold shipment/ release
process.


 


Test
processes defined and agreed must include customer audit, in-process, burn-in
tests, and rolling reliability tests. InFocus will provide a Quality Acceptance
Plan.


 


Agreements
for all of the above should be detailed in the Exhibits section of the
document.


 


3.9 Product Warranty &
Service Support – Agreed to as set forth in Exhibit H


 


3.10
Reporting Needs.
Supplier will provide the following reports on a routine basis.


 


Reports
will be placed on an FTP site (location to be provided by InFocus).


 


	
  Report name

  	
   

  	
  Frequency

  	
   

  	
  Owner

  	
   

  
	
  Weekly
  MPS

  	
   

  	
  weekly

  	
   

  	
  InFocus

  	
   

  
	
  Weekly
  MPS Response

  	
   

  	
  weekly

  	
   

  	
  InFocus

  	
   

  
	
  Production
  plan v actuals

  	
   

  	
  Daily

  	
   

  	
  Supplier

  	
   

  
	
  Shipment
  plan v actuals

  	
   

  	
  Daily

  	
   

  	
  Supplier

  	
   

  
	
  In
  process Quality Results

  	
   

  	
  Daily

  	
   

  	
  Supplier

  	
   

  
	
  RFA
  receipts/implementations

  	
   

  	
  Weekly
  (fri)

  	
   

  	
  Supplier

  	
   

  
	
  Open
  (FG) Purchase order report

  	
   

  	
  Monthly

  	
   

  	
  Supplier

  	
   

  
	
  Clear
  to build report

  	
   

  	
  Weekly
  (Thu)

  	
   

  	
  Supplier

  	
   

  
	
  Daily
  yield reporting

  	
   

  	
  Daily

  	
   

  	
  Supplier

  	
   

  
	
  PO
  Exposure reporting

  	
   

  	
  Monthly(L
  fri)

  	
   

  	
  Supplier

  	
   

  



 


Failure
to provide the information as required by 5pm on the due day, will be regarded
as a non compliance, and will be recorded as such in the QBR reporting.


 


3.11 IT
Integration. Supplier
will need to participate in the development of some electronic data interfaces
for the purposes of transmitting accurate and up to date data to and from the
Supplier. The implementation of this solution can be time-phased.


 


3.12
Domestic Sales


Supplier
must have a Business license to sell products to InFocus internally in China.


 


8

















 


Section
4: General Terms


 


4.1.         Term and Termination


 


The term of this Agreement shall be for a period of
three (3) years from the Effective Date, unless sooner terminated or further
extended as provided herein. The issuance of any Purchase Order from InFocus or any Related Party after expiration or termination
of this Agreement shall not operate as a renewal of this Agreement or as a
waiver of such expiration or termination. The parties may extend the term of
this Agreement by written agreement at least one hundred and eighty (180) days
prior to the expiration date of the initial term or any subsequent renewal term.


 


Termination without Cause. Either party may terminate Agreement without cause with 6 months
written notice.


 


Termination with Cause. Either party may upon written notice terminate the agreement
immediately for a) material breach not cured within 20 days from date of
written notification, b) breach of non-disclosure obligations, c) the other
party becomes insolvent, fails to pay its debtors or fails to perform
obligations that arise from the normal course of business.


 


This
Agreement may be terminated by InFocus if Supplier relocates any of its
manufacturing locations without prior official written approval from InFocus.


 


Effect of Partial or Complete Termination. Upon
termination by either party of this
Agreement, in whole or in part, as provided under this Section 4.1:


 


Except
as expressly provided in this Agreement and the relevant termination notice
from the party who terminates this Agreement, the parties’ respective obligations and rights
shall terminate;


Any
and all sums owed by one party to the other party shall become immediately due
and payable and such termination shall not affect or reduce the obligations of
either party to make such payments;


Subject to Supplier’s breach of this Agreement, InFocus may cancel any Purchase Orders previously placed with Supplier for
Products that have not been shipped to InFocus as of the effective date of
termination;


Subject to InFocus’ breach of this Agreement,
Supplier may, at its discretion, cancel any Purchase Orders previously placed with Supplier for Products
that have not been shipped to InFocus as of the effective date of termination and ask
InFocus for the cancellation charge as specified in Section 3.3;


Supplier
shall immediately discontinue all use of the InFocus Trademarks, and any other
marks or names so resembling the InFocus Trademarks as to be likely to cause
confusion or mistake; and


Either party shall immediately return the other party’s Confidential Information and all other information and materials
relating to the Products. However, Supplier may retain and continue its use of
the Design Documentation and/or Manufacturing Documentation to manufacture and
sell Products to Third Parties if and to the extent that InFocus and Supplier
have executed separate Third Party Sales Licensing

Agreement(s) explicitly licensing Supplier to sell Products to Third
Parties and only during the term of such Third Party License(s).


 


Supplier
will furnish InFocus with the latest copies of all relevant specifications.
Supplier will continue to ship all remaining outstanding amounts on a Purchase
Order to agreed quality standards. Supplier will ship — upon instruction from
InFocus – all tooling and test equipment owned by InFocus to a pre-defined
location. InFocus sole obligation in the event of termination is payment of
outstanding Product invoices (unless in dispute) and any reasonable costs
associated with packing, shipping and disposition of InFocus tooling, test
equipment and materials. Supplier will work with the InFocus nominated
replacement supplier on a project basis –to timelines outlined by Supplier and
will use reasonable efforts to transfer all component purchase orders to new
Supplier.


 


9

















 


No
Compensation upon Termination. Except as expressly provided
in this Agreement, neither party shall be liable to the other party as a result
of a termination of this Agreement, in whole or in part, for any compensation,
reimbursement, loss, damages or liability suffered by the other party because
of such termination, including, without limitation, any loss of prospective
profits or anticipated sales, loss of goodwill, expenditures, investments,
commitments, or any other disadvantage incurred or suffered by the terminated
party.


 


4.2              *


 


4.3       Indemnification.


 


Supplier
shall assume any and all liability and responsibility for the loss or damage to
property or the injury or death of a person arising out of or resulting from
Product manufactured by Supplier, or arising out of or connected with any act,
omission or performance of Supplier under this Agreement, including but not
limited to any Supplier noncompliance with or violation of law or regulation.
Supplier shall defend, indemnify and hold harmless InFocus, its officers,
directors, employees, agents, affiliates, successors and assigns, licensees and
customers, from any and all actual or threatened claim, demand, suit or action,
whether in contract or tort, investigation, liability, damage, loss, cost or
expense, including but not limited to reasonable attorney’s fees, expert
witnesses fees, and all litigation costs or expenses. Supplier’s
indemnification obligations shall survive the termination of this Agreement.


 


The
foregoing indemnity will not apply to any liability, claim, loss, damage, cost
or expense to the extent otherwise attributable to: any negligent act or
omission on the part of InFocus in its
subsequent resale of a Product; any InFocus or third party performed modification to the
Product once received from Supplier; any claim
caused by InFocus’ or end user’s Product abuse, misuse,
neglect, improper installation, operation, testing, maintenance, repair, or alteration; or unusual deterioration or degradation of a Product or
parts thereof due to physical environment beyond the requirements of Product
specifications.


 


The
indemnity obligations of Supplier contained in the preceding paragraphs is
conditioned upon InFocus giving Supplier: i) prompt notice in writing of any
such indemnification obligation; ii) full authority to conduct the defense
thereof; iii) authority to settle upon prior approval of InFocus, which shall
not be unreasonably withheld; and iv) at Supplier’s option and expense,
reasonably necessary assistance and cooperation in said defense.


 


4.4       Customer Data


 


The
following provisions shall apply to any Customer Data (“Data”) to which
Supplier may be required or have occasion to access, as well as any reports or
other documentation created by Supplier from such Data, regardless of the
documentation’s format:


 


Supplier
shall hold any such Data it receives in compliance with all laws regarding the
use and access of such Data. Supplier further agrees that the Supplier as well
as its employees, agents and contractors of any legal status, including but not
limited to individuals, partnerships and corporations (hereafter referred to as
“Agents”) will not use Data for any purpose other than the fulfillment of the
terms and conditions of this Agreement. Supplier shall not disseminate Data to
any third party or transfer such Data in or outside the US without the written
approval of InFocus unless expressly provided for in this






*Certain
information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.


 


10

















 


Agreement.
If Data relates to individuals from the European Union, or countries with
similar privacy legislation, Supplier agrees for itself and its Agents to
comply with the relevant Safe Harbor Principles or the relevant country laws or
regulations. For the transfer or dissemination by Supplier of European Data to
countries deemed by the European Union not to have adequate protection,
Supplier agrees to and shall comply with the unaltered provisions of the
European Commission’s Model Contract clauses as contained in commission
decision 2001/497/EC dated June 15, 2001.


 


Supplier
shall maintain appropriate technical, organizational and security measures
(including but not limited to compliance with InFocus Information Technology
security protocols and procedures to the extent they are provide to Supplier
for review) to protect the confidentiality of the Data and shall, with
appropriate notice from InFocus, permit InFocus to conduct audits to determine
compliance with these Data provisions. Supplier shall, when directed by
InFocus, destroy specified Data and provide written confirmation to InFocus of
such destruction. Supplier shall, when directed by InFocus, return to InFocus
all or any of the Data together with any copies that may have been made. If
Supplier determines that the destruction or return of Data is not feasible,
Supplier shall provide InFocus with notifications of the conditions that make
return or destruction of such Data infeasible. The parties agree that any
further use of the Data that is not destroyed or returned by Supplier or its
Agents shall be limited to that purpose which renders the return or destruction
of such Data infeasible for so long as such Data is maintained by Supplier or
its Agents. Once the purpose rendering the destruction or return of the Data
infeasible no longer exists, such Data shall be destroyed or returned to
InFocus as initially directed.


 


Supplier
agrees to:  immediately report to InFocus
any use or disclosure of Data that violates the terms of this Agreement;
mitigate, to the extent practicable, any harmful effects of such violation that
is known to Supplier or its Agents; cooperate with InFocus in providing any
notices regarding such disclosures which InFocus deems appropriate.


 


Supplier
shall ensure that:  any Agents who have
access to Data pursuant to this Agreement are advised of and shall comply with
these terms and conditions; and Supplier’s Agents who are individuals and have
access to Data are trained regarding their handling of such Data. Supplier
shall be responsible for any failure of its Agents to comply with these terms
and conditions regarding Data.


 


4.5       Liability


 


MUTUAL LIMITATION OF LIABILITY. EXCEPT AS EXPLICITLY
PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR
SUCH OTHER PARTY’S CUSTOMERS OR END USERS, AS THE CASE MAY BE, FOR ANY PUNITIVE
OR EXEMPLARY DAMAGES OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL
DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, PROFITS, REVENUE
OR BUSINESS) ARISING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT OR ITS
TERMINATION OR THE MANUFACTURE, SALE, SERVICE, USE OF (OR THE INABILITY TO
MANUFACTURE, SELL, SERVICE OR USE) ANY PRODUCTS OR THIRD PARTY PRODUCTS,
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. THIS
SECTION SHALL APPLY REGARDLESS OF WHETHER SUCH DAMAGES ARE
SOUGHT BASED ON BREACH OF CONTRACT, BREACH OR WARRANTY, NEGLIGENCE, STRICT
LIABILITY IN TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.


 


4.6       Intellectual Property


 


4.6.1 Trademarks


Intellectual
Property. Supplier acknowledges that no right, interest, ownership or privilege
of use of InFocus’ trade name or trademarks is granted or conveyed to Supplier
by reason of entry into this Agreement or performance under this Agreement
except as follows: InFocus hereby authorizes and grants Supplier the right to
place the InFocus trade name or trademarks on Product, including packaging, to
be delivered to InFocus pursuant to this Agreement.


 


Unless
InFocus otherwise gives its express written consent, Supplier will not use or
authorize others to use InFocus’ trade name or any of its trademarks, trade
dress, copyrighted matter or designs in advertising or promoting any of
Supplier’s activities, products or services.


 


11

















 


Supplier
acknowledges that InFocus’ trade names and trademarks are the property of
InFocus. Supplier will not in any way impair the rights of InFocus in and to
its trade name and trademarks. Supplier agrees to execute undertaking/s or such
other documents as InFocus may deem appropriate in this respect. Except as
expressly authorized in writing by InFocus, Supplier agrees to sell the Product
bearing InFocus’ trade name and trademarks only to InFocus and not to any other
party and not to commercialize the InFocus-named or InFocus-branded Product in
any other manner. Supplier agrees that Product not meeting the quality
standards for Product prescribed in this Agreement will not be labeled with or
used or offered for sale under any trademark, trade name or trade dress of
InFocus.


 


Upon
notice to Supplier by InFocus or upon termination of this Agreement, Supplier
will promptly deliver to InFocus or destroy all packaging materials, labels and
all promotional and other materials in Supplier’s possession relating to the
Product. All artwork, plates and other aids used by Supplier uniquely for the
Product are to become InFocus’ property and are to be returned to InFocus or
disposed of by Supplier in accordance with InFocus’ instructions.


 


InFocus
warrants and represents that InFocus is the sole and exclusive owner of InFocus’
trade name or trademarks as applied to Product including packaging and that the
use of InFocus’ trade name or trademarks does not constitute any known
infringement of any rights of any third party.


 


InFocus
agrees to defend Supplier against any claim of trade name and trademark
infringement by reason of use of InFocus trade name and trademarks on Product
including packaging and/or on printed material in connection therewith. InFocus
shall indemnify and hold harmless Supplier against any loss, damage and cost
reasonably incurred by Supplier in any such claim to the extent attributable to
such claim. InFocus’ obligations with respect to such claim are expressly
conditioned upon Supplier giving InFocus prompt notice of such claim and
granting InFocus in writing exclusive control over its defense or settlement
and cooperating with InFocus at InFocus’ expense.


 


Supplier
agrees to defend InFocus against any claim of trade name and trademark
infringement by reason of use of Supplier trade name and trademarks on Supplier
Software including packaging and/or on printed material in connection therewith.
Supplier shall indemnify and hold harmless InFocus against any loss, damage and
cost reasonably incurred by InFocus in any such claim to the extent
attributable to such claim. Supplier’s obligations with respect to such claim
are expressly conditioned upon InFocus giving Supplier prompt notice of such
claim and granting Supplier in writing exclusive control over its defense or
settlement and cooperating with Supplier at Supplier’s expense.


 


Product
Industrial Design (ID), and any other items designed specifically for use on
InFocus branded products to be purchased under this Agreement are considered to
have been designed and developed exclusively for use with the InFocus brand. As
such, Supplier shall not use or sell the same product ID. All tooling related
to the development and manufacture of the ID, are the property of InFocus.


 


4.6.2 Product Design.


 


*


 


Design. 
*


 


4.6.3 Cooperation.


 


Supplier
agrees to cooperate and provide all reasonably necessary assistance to InFocus
in securing intellectual property rights, including upon InFocus request applying
for patents or otherwise perfecting and


 






*Certain
information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.


 


12

















 


protecting
InFocus’ interest in the Product Design, including, but not limited to,
executing documents and assignments as needed. Supplier further agrees in
regards to any Design Services provided under section 2.13 to supply to InFocus
at regular reporting intervals any and all specifications, designs,
discoveries, inventions, modifications, computer programs ( in binary and
source form), technical information, procedures, improvements, developments,
drawings, notes, documents, information, manufacturing methods and materials,
in any form, that Supplier develops during such Design services.


 


4.6.4         Escrow Agreement


 


Escrow.
Within ninety (90) Days after the Effective Date, upon InFocus request, the
Parties shall enter into an agreement (the “Escrow Agreement”) with a third
party escrow agent, at InFocus’ expense. Supplier shall provide to such escrow
agent all specifications, designs, discoveries, inventions, modifications,
computer programs (in binary and source form), technical information, procedures,
improvements, developments, drawings, notes, documents, information,
manufacturing methods and materials, in any form, that Supplier then currently
uses to manufacture Products purchased hereunder by InFocus. Supplier shall
provide updates to Manufacturing Packages as necessary. The Manufacturing
Packages shall be provided in such form and media as may be implemented using
InFocus’ then existing systems, to the extent Supplier is reasonably able to do
so. The Escrow Agreement shall provide that the escrow agent shall deliver to
InFocus the Manufacturing Packages immediately upon election to exercise by
InFocus. Supplier shall reasonably assist InFocus with the installation and
implementation of such Manufacturing Packages. The Parties shall equally share
the costs of such implementation. InFocus shall not use any Software source
code for any purpose other making bug fixes to the Software that are necessary
to enable InFocus to ship product. Supplier shall own all right, title and
interest in to such bug fixes.


 


4.6.5 Intellectual Property
Warranty. Supplier
warrants that it has secured all necessary Intellectual Property Licenses for
parts and components included in the Product. Supplier shall identify all such
Intellectual Property Licenses to InFocus in writing within 90 days of
execution of this agreement.


 


4.6.6         Infringement


 


The
term “Infringement Claim” shall mean and represent any claim that any Product
or component thereof designed by Supplier or for Supplier by third parties
other than InFocus infringe any third party’s intellectual property rights,
including any patent, trade secret, copyright or other intellectual property
right.


 


Supplier,
at its own expense, shall resolve or defend any Infringement Claim made against
InFocus, its Subsidiaries, or their direct or indirect customers, and shall
indemnify them and hold them harmless against any loss, damage, or cost
reasonably incurred by them as a result of any action or suit based on an
Infringement Claim. The indemnity obligation of Supplier contained in the
proceeding sentence is conditioned upon InFocus giving Supplier: prompt notice
in writing of any such Infringement Claim, full authority to settle or to
conduct the defense thereof, and at Supplier’s option and expense, reasonably
necessary assistance and cooperation in said defense.


 


In
the event that any Infringement Claim presents, in either party’s reasonable
opinion, an unacceptable risk of an adverse judgment or results in such a
judgment, Supplier shall, at its option and expense, either: Procure for
InFocus and InFocus’ direct and indirect customers the right to continue the
use of the Products; or Modify the Products, Service Parts or components
thereof so that they become non-infringing while remaining equivalent in form,
fit, function and quality. If neither of those alternatives is reasonably
available to Supplier, either party may terminate upon thirty (30) days advance
written notice this Agreement and any purchase order hereunder without
liability for such termination, and Supplier shall accept the return of
Products remaining in the possession of InFocus or its Subsidiaries subject to
or likely to be subject to the Infringement Claim and Supplier shall refund to
InFocus the price paid for such Products reflecting any discounts, it being
understood that payment of such refund by Supplier for Products returned by
InFocus shall not relieve Supplier of its other indemnification obligations
under this Agreement.


 


In
the event of modification or return of Products, Supplier and InFocus shall
mutually agree upon the implementation process for making such modification or
return. InFocus shall not unreasonably withhold approval of such modification
or return.


 


13

















 


4.6.7    Limited License to Supply InFocus


 


To
the extent reasonably necessary to enable Supplier to perform its obligations
hereunder, InFocus hereby grants to Supplier, and Supplier hereby accepts from
InFocus, a limited, non-exclusive, terminable, worldwide, paid-up,
non-transferable license in and to any Intellectual Property Rights for such
Products solely to manufacture and supply the Products for use by InFocus or
its Related Parties or their respective resellers, distributors and other
agents (“InFocus License”). This InFocus License may be sublicensed to
subcontractors upon the request of Supplier and the prior written approval of
InFocus, which approval shall not be unreasonably delayed or withheld,
provided, each such subcontractor shall be subject to substantially the same limitations
and restrictions as are imposed on Supplier hereunder.


 


4.6.8   Sales Convey No Licenses


 


 Nothing in this Agreement shall be construed
as granting by implication, estoppel or otherwise, any license or rights under
any trademarks, service marks, trade names, patents, inventions, copyrights,
know-how, trade secrets or other proprietary rights of either party except for
those licenses expressly granted herein.


 


4.7    Press Release and Publicity


Release
of Information. Neither party shall publicly announce the terms of this
Agreement or advertise or release any publicity in regards to this Agreement
without securing the prior written consent of the other party, which shall not
be unreasonably withheld.


 


4.8            Export Compliance. Supplier
warrants that all Product is freely exportable to all countries other than
those which are generally subject to US embargo.


 


4.8.1                     Duty Preference


Upon
request from InFocus, Supplier shall immediately furnish all Duty Preference
Claim documentation in accordance with the rules of but not limited to NAFTA,
Sin-US FTA, and GSP.


 


4.8.2                     Documentation Archival. Supplier shall maintain, and reproduce upon
demand, all documentation relating to the international transport of Products
for a period of not less than six (6) calendar years from the date of each
shipment. All such record keeping systems will comport with the legal
requirements of the U.S. and other nations including requirements set out in
Parts 762 and 772, U.S. Department of Commerce, Export Administration
Regulations and the U.S. Customs Record-Keeping Regulations, 19 C.F.R. 163.
Supplier will provide immediate notice to InFocus (via such Parties’ appointed
representatives) in the event of an action by the U.S. or other national
government customs/export authorities that relates specifically to Products or
Services provided to InFocus. Supplier will afford InFocus and their duly
appointed agents reasonable access to the Supplier facilities for trade
compliance audits purposes and further agrees to respond in a timely manner to
an InFocus request for production of trade control records and to comply with
all remedial or corrective actions that InFocus may specify.


 


4.9       Employee Relationships/Independent
Parties


Independent Parties. Neither this Agreement, nor the licenses granted
herein to either party, shall create any implied
relations or agreements whatsoever. Nothing herein shall be construed (a) to
constitute either party a representative or agent of the other party for any
purpose whatsoever; (b) to constitute the parties as partners, joint venturers,
co-owners or otherwise as participants in a joint or common undertaking; or (c)
to allow either party to create or assume any obligation on behalf of the other
party for any purpose whatsoever.


 


Use of Other Party’s Name. Except as necessary to perform their
obligations under this Agreement, neither party may make any reference to the
other party, its trademarks or trade names in advertising, public
announcements, or promotional materials without express written permission from
the other party. The fact that InFocus is a customer of Supplier shall be
treated as confidential information and Supplier shall not identify InFocus as
one of its customers unless InFocus gives its written permission.


 


4.10                                   Compliance with Laws


Supplier at its own expense, shall comply with all applicable laws,
rules and regulations, including without limitation those within the Territory
dealing with the design, development, manufacture, sale, support and
environmental compliance of the Products, and shall be responsible for the
filing of all reports and notices and the payment of all taxes, custom duties,
and other assessments required thereby. Failure to so comply shall constitute a
breach and give rise to InFocus’ right to terminate.


 


Supplier
shall take reasonable and acceptable measures as needed to secure that the
Product moving under the Suppliers care are protected in such a way that
misappropriation, theft, unobserved replacement, addition of unfamiliar product
or any other unauthorized access to the Product will be prevented to the extent
possible. 


 


14

















 


Supplier
shall be committed to be actively involved in continuous Supply Chain Security
Programs in accordance with the rules of C-TPAT.


 


4.10.1  Certification of Products, Safety
and EMC


 


Certification
of Product - Supplier shall provide Product that meets the appropriate Safety
and EMC standards listed in Engineering Requirement Specification or Safety
& EMC Requirement document.


 


Safety
compliance shall be accomplished by Underwriters Laboratories Listing for the
product and completed with an IECEE CB Scheme Test Report (CB Report) and
Certificate issued by an Agency in good standing with the CB Scheme. 
InFocus shall review the Safety and EMC report(s) for adequate coverage and
reserves the right to request clarification and re-testing if appropriate (i.e.
touch temperature, Lamp Rupture test).


 


EMC
compliance shall be accomplished by testing with completed test reports issued
by an ISO 17025 accredited facility recognized by NACLA. The product shall have
a 3dB margin to the appropriate test limits, to be deemed minimally acceptable
to InFocus.


 


Supplier
shall cover EMC and Safety type testing and approval fees. Supplier shall
permit InFocus to act as an Agent for Regulatory issues pertinent to the
Product.


 


Supplier
shall make available to InFocus documents including but not limited to:  schematics of power supply, other secondary
circuitry schematics, full factory inspection reports (summary page report is
not acceptable), plastic specifications for all plastic parts, and certificates
and specifications for AC mains primary parts.


 


Supplier
shall provide InFocus English language electronic versions of service guides,
and user guides for the Product as available substantially at or before the
initial production/delivery of Supplier’s version of the Product. Supplier
shall be responsible for publishing service guides for the Product. Supplier
grants to InFocus a royalty-free right to publish InFocus’ service guides based
on the description of the Product from Supplier for internal use and to
distribute them to authorized service providers under confidentiality terms
where appropriate.


 


Supplier
shall provide InFocus with electronic copies of user guides for InFocus’
modification and return to Supplier. Supplier shall produce the modified user
guides and pack such guides with the PRODUCT without charge so long as the
guides are not substantially changed by InFocus.


 


4.10.2  Product or Component Recall


 


If
either party becomes aware that any Product or component thereof may become
harmful to persons or property during normal operation (a “Safety Defect”), the
party who becomes aware of the Safety Defect shall immediately give notice
thereof to the other party, together with all information relevant to its
determination that a Safety Defect may exist.


 


At
InFocus’ request, Supplier and InFocus shall jointly set up a recall program
with respect to any investigation or testing either or both parties deem necessary
with respect to a Safety Defect, including without limitation assisting InFocus
in determining whether other products supplied to InFocus by Supplier are
affected by a similar Safety Defect. Supplier shall provide such cooperation
and assistance whether such Safety Defect was identified by Supplier or by
InFocus, or otherwise.


 


Supplier
shall promptly identify root causes for the Safety Defect identified through
investigation or testing.


 


Should
either InFocus, or Supplier with InFocus’ permission, either voluntarily or
involuntarily, recall any Product as a result of a Safety Defect (a “Recall”),
Supplier shall assist and cooperate with InFocus in all respects with regard to
the preparation for and execution of such Recall. Supplier shall provide such
cooperation and assistance whether such Safety Defect was identified by
Supplier or by InFocus, or otherwise.


 


Except
where a Safety Defect is caused solely by either (a) a defect in a Product
design supplied by InFocus or (b) a part or component supplied by InFocus,
Supplier agrees to reimburse InFocus for all costs incurred in connection with
such Recall including, without limitation, the cost of:  investigation, evaluation and testing; legal
and other consulting fees; notification to InFocus customers and Product end
users; transportation of


 


15

















 


affected
Product or replacement units therefore; testing and repair of affected units;
disposal or return of affected units to Supplier; replacement units or price
reimbursement for recalled units whether or not the recalled units are within
the warranty period; and  fines, levies
or other costs imposed by any regulatory agency or governmental body in
connection with such Safety Defect.


 


4.10.3              Country of Origin


Upon
request from InFocus, Supplier shall immediately produce affidavits stating the
country of manufacture in accordance with the rules of origin of the
destination country.


 


United
States law requires every article of foreign origin imported into the United
States, or its immediate container , and the outer package in which such
article is imported, to be marked, branded, or labeled, legibly in English
words, in a conspicuous place, in such manner as to indicate the country of
origin (manufacture) of such article. Shipments of materials of foreign
manufacture into the United States must also indicated country of origin and
labeling must comply with the above paragraph. Further work or material added
to an article in a country must effect a substantial transformation in order to
render such country the “Country of Origin”. United States Customs’ Law makes
compliance to the regulation mandatory. Failure to comply may result in
impoundment of your shipment. Any and all fines, penalties, storage costs,
etc., by United States Customs are the responsibility of the exporter.


 


4.10.4              Restriction on Hazardous
Subtances (“ROHS”)


 


Upon
request from InFocus, Supplier shall immediately furnish all documentation in
accordance with the rules of RoHS EU Directive 2002/95/EC on the restriction of
the use of certain hazardous substances in electrical and electronic equipment.
All Supplier acts shall be in accordance with Exhibit F Government Compliance.


 


4.10.4.1    Exhibit G : InFocus Restricted
Material and Substances List


 


4.10.4.2    Notwithstanding the foregoing, Supplier shall not
be responsible for RoHS non-compliance to the extent any components, systems,
materials, and/or parts
identified in writing by the Parties and
provided by InFocus assigned or appointed vendors, nor shall Supplier be held
responsible to the extent any components, systems, materials, and/or parts identified
in writing by the Parties and provided by InFocus under either a consignment or
a buy-sell arrangement with Supplier.


 


4.10.5  Foreign Corrupt Practices Act


 


Foreign
Corrupt Practices Act; Anti-Boycott Regulations. Supplier shall not make any
payment or perform any act that would constitute a violation of the U.S.
Foreign Corrupt Practices Act, if applicable, or furnish any information or
perform any act that would constitute any violation of any US anti-boycott
laws, rules and regulations, if applicable.


 


No
Export. For each instance in which InFocus is the discloser, recipient
certifies that no Confidential Information, or any portion thereof, will be exported
to any country in violation of the United States Export Administration Act and
regulations thereunder.


 


4.11     Force Majeure


 


Force
Majeure. If performance other than payment for this Agreement by Supplier or
InFocus is prevented or delayed by reason of any cause, in whole or in part,
either directly or indirectly, by act of God, fire, war, riot, civil
insurrection, accident, embargo, strike or other labor unrest, or decree or
order of any court or government, or any other occurrence, act, cause or thing
beyond the reasonable control of, and without the fault of, the party affected,
and which cannot be overcome by reasonable diligence, the party affected shall
be excused from such performance to the extent that it is necessarily prevented
or delayed thereby, during the period of any such cause, and this Agreement
shall be deemed suspended for such period. However, after ninety (90)
consecutive days of such suspension on the part of one party, the other party
may terminate without liability for its obligations under this Agreement. In
order to obtain a suspension, the party invoking Force Majeure shall send
written notice thereof to the other within a reasonable time after the invoking
party knew or should have known that performance would be delayed or prevented
due to the Force Majeure.


 


16

















 


4.12  No Waiver


 


Binding
Effect; Waiver. This Agreement shall be binding on and inure to the benefit of
the parties and their heirs, personal representatives, successors, and assigns.
No waiver of any breach of this Agreement shall constitute a waiver of any
other breach of the same or other provisions of this Agreement. No waiver shall
be effective unless made in writing.


 


4.13  Severability


 


Severability.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective while this Agreement
remains in effect, the legality, validity and enforceability of the remaining
provisions shall not be affected thereby, and in lieu of each such illegal,
invalid or unenforceable provision the parties shall negotiate in good faith to
add a provision similar in terms to such illegal, invalid or unenforceable
provision as may be possible.


 


4.14  Precedence/Conflicts of Documents


 


Conflicts
In Documentation. In case of any conflicts on the same subject between this
Agreement and any prior agreements, purchase orders, acceptances,
correspondence and other documents forming part of any order for Product placed
by or for InFocus and accepted by Supplier during the term of this Agreement,
this Agreement shall govern and prevail, and the conflicting terms and
conditions of any such documents shall be deemed deleted and shall not be
binding upon either party insofar as they relate to this Agreement. The United
Nations Convention on Contracts for the International Sale of Goods shall not
apply. Revised UCC Article 2 Section 207 shall not apply. In the event of a
conflict, the following order of precedence shall govern:  Amendments; this Agreement; Appendices; and
Purchase Orders accepted under this Agreement.


 


4.15  Entire Agreement. This Agreement, including all Appendices
annexed hereto, constitutes the entire agreement and understanding between
Supplier and InFocus relative to the subject matter hereof and supersedes any
previous agreements or understandings whether oral or written. This Agreement
may not be amended, except in writing, signed by authorized representatives of
both parties.


 


4.16  Applicable law


 


Governing
Law. This Agreement has been executed and entered into in Wilsonville,
Oregon, U.S.A. and shall be construed, performed and enforced in accordance
with the laws of the State of Oregon, U.S.A., excluding its conflict of law
principles and the United Nations Convention on Contracts for the International
Sale of Goods.


 


Dispute
Resolution; Attorneys’ Fees. For disputes regarding the
Confidential Information or other Intellectual Property Rights of InFocus or
any of its Related Parties, the sole and exclusive forum shall be the U.S. District
Court for the District of Oregon, Portland, Oregon, USA, which both parties
acknowledge to be a reasonable and convenient forum. Except for the foregoing,
any other disputes arising out of or resulting from this Agreement (including,
without limitation, its termination, in whole or in part) shall be finally and
solely settled under the International Arbitration Rules of American
Arbitration Association (“AAA”) by neutral arbitrators. If such dispute
involves less than US$100,000 in controversy, there shall be one (1)
arbitrator, and if such dispute involves US$100,000 or more in controversy,
there shall be three (3) arbitrators. The arbitrator(s) shall be selected by
mutual agreement of the parties or, in the absence of such agreement within
thirty (30) days of the first written request for arbitration from the party
initiating such arbitration, the arbitrator(s) shall be selected in accordance
with such AAA rules. Such arbitration shall be instituted and held in Portland,
Oregon, USA and shall be conducted in the English language. Any award rendered
in such arbitration shall be final and binding and may be entered and enforced
as a judgment with any court of competent jurisdiction. Any damages awarded by
the court or by the arbitrators, as the case may be, shall be in U.S. dollars. The
prevailing party in such legal proceeding or arbitration shall be entitled to
receive, in addition to any other relief provided, reimbursement of its actual
and reasonable attorneys’ fees and costs thereby incurred.


 


4.17  Exhibits


 


Exhibits;
Headings; Counterparts; Versions.  All exhibits attached to this Agreement
are an integral part hereof and shall be incorporated herein as though set
forth in full.  If there is any material conflict between an exhibit and
the text of this Agreement, this Agreement shall prevail.  The headings
used herein are solely for convenience of reference and shall not to be
considered in construing or interpreting this Agreement.  This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.   The English language version of this 


 


17

















 


Agreement,
regardless of concurrent or later translation into any other language, shall be
controlling for all purposes.


 


4.18                                   Insurance.


 


Coverage Requirements. Without limiting any of the obligations or
liabilities of InFocus and Supplier,  Supplier and each other
supplier and its subcontractors will maintain, at its own expense, until the
Support Life for all Products has terminated, insurance policies of the kind
and limits listed below:


 


a)              General Liability:  Supplier will carry either
Comprehensive or Commercial General Liability Insurance with coverage to
include Premises and Operations, Products and Completed Operations, Contractual
Liability, Property Damage (including completed operations), and Personal
Injury with combined single limits of $* per occurrence.


b)             Umbrella: Supplier will be covered by an Umbrella coverage that follows form
over the General Liability and Automobile Liability with a minimum limit of $*
per occurrence, $* aggregate.   


c)              Directors and Officers:  Supplier will be covered as needed by
a Directors and Officers policy with a minimum limit of $* per occurrence, $*
aggregate.


d)             Cargo Coverage: Supplier will be covered by Cargo Coverage.


e)              Property / Warehouse Liability:  Supplier will carry Property or
Warehouse Liability insurance in amounts adequate to cover risks of damage or loss
to Assured Property in its care, custody and control, as assumed under the
terms of this Agreement. Any such insurance will name Assured as Loss Payee.


 


Claims Made Coverage. If any policies have “claims made” coverage,
Supplier and each other supplier and its subcontractors will maintain such
coverage with InFocus, its officers, Subsidiaries, directors and employees
named as an additional insured for a minimum of five (5) years after the
permitted date of termination specified above.  Any such coverage must
have a retroactive date no later than the date upon which work commenced under
this Agreement or any other Transaction Document.


 


Additional Requirements.  All deductibles on policies providing
coverage will be paid by Supplier or another supplier and its subcontractors.
If Supplier or any other supplier is self insured for any matter, such entity
agrees to respond to any claims or losses made against or incurred by InFocus
in the same fashion as if insurance had been purchased with the same or broader
coverage terms as what is generally available to similar entities in the same
line of business. In no event will the coverage or limits of any insurance
required under this section, or the lack of availability of any other
insurance, be deemed to limit or diminish in any way any Supplier’s obligations
or liability to InFocus under this Agreement or any other Transaction Document.


 


All
insurance policies will be written by a company authorized to do business in
the territory and jurisdiction relevant to the particular coverage. All
insurance polices will be written with appropriately licensed and financially
responsible insurers.


 


Certificate of Insurance.  The applicable Supplier will furnish
Certificates of Insurance acceptable to InFocus before any Products are
produced or Services performed under any Transaction Document by the
Supplier.  The Certificate of Insurance will provide that there will be no
cancellation or reduction of coverage without thirty (30) days’ prior written
notice to InFocus.


 


4.18.1              Disaster Recovery Plan


 


Business Recovery Plan.  Supplier shall maintain and upon
request, submit to InFocus for review/comment, an InFocus-specific business
recovery plan for InFocus which shall include all reasonable procedures needed
to facilitate the recovery and restoration of InFocus’ business at the current
monthly shipping rates, including use of an alternate Supplier facility or
subcontractor facility if production is delayed for more than fourteen (14)
days.  InFocus shall cooperate with such Supplier business recovery
plan.  In the event that such Supplier delay continues for more than
fourteen (14) days, InFocus may, at its sole option, either (a) terminate this
Agreement, (b) suspend its obligations under this Agreement during the period
of delay and cancel outstanding delinquent purchase orders without liability,
and/or (c) invoke InFocus’ manufacturing rights as outlined under Section 3
Production and Supplier agrees to cooperate in same.


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


18

















 


4.18.2              Product Liability Insurance


 


Product
Liability Insurance. During the Term and for five (5) years after
expiration or termination of this Agreement, Supplier will carry product
liability insurance covering the Products in an amount not less than ten
million United States dollars (U.S. $*) per accident and in annual aggregate,
naming InFocus as Additional Insured. In addition, for any Consigned Parts,
Supplier will carry full property insurance and name InFocus as an Additional
Insured on that policy. Upon written request by InFocus, Supplier will provide
InFocus appropriate insurance certificates. Nothing in this provision will
serve to limit Supplier’s legal liability to InFocus for products liability.


 


In
the event Supplier cancels its product liability or property insurance,
Supplier will provide InFocus with thirty (30) days written notice of
cancellation. In the event that such insurance is canceled, but not by
Supplier, Supplier will notify InFocus within forty-eight (48) hours of receipt
of such notice of cancellation.


 


4.19        Notices


 


Any
notices required or permitted to be given under this Agreement will be in
writing and deemed valid and sufficient if delivered in person, by express
courier service or by facsimile transmission (provided a confirmation of
transmission is received) to the addresses set forth below or any other subsequent
address of which a party provides notice.


 


	
  Hon
  Hai Precision Industry Co, Ltd

  	
   

  	
   

  
	
  No.2
  2nd Dong Huan Rd, 10th

  	
   

  	
  InFocus
  Corporation

  
	
  YouSong
  Industrial District

  	
   

  	
  27700B
  SW Parkway Ave

  
	
  LongHua
  Street, Bao’an

  	
   

  	
  Wilsonville,
  Oregon 97070

  
	
  ShenZhen
  518109, GuanDong, China

  	
   

  	
   

  



 


4.20        Survival


 


Those provisions which, by their nature, continue beyond expiration or
termination on a particular date, shall be deemed to survive expiration or
termination of this Agreement.


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


19

















 


Section
5 : Exhibits


 


Exhibit
A: Locations of InFocus Logistics Centers


 


1)   USL - USA


 


UPS LOGISTICS
CTR-LOUISVILLE, KY


InFocus
Corporation


c/o UPS-SCS


Door 33-37


2200 OUTER LOOP, BUILDING 1


LOUISVILLE, KENTUCKY


40219-3565


UNITED STATES OF
AMERICA


*


*


 


2)   EUL – Europe/Middle East & Africa


 


UPS LOGISTICS
GROUP BV


RINGWEG 6


ROERMOND THE
NETHERKANDS


6045JL


HOLLAND


*


*


 


3)   APL – Asia Pacific


 


INFOCUS
INTERNATIONAL BV


C/O INFOCUS
SYSTEM ASIS P/L


FINAL DES. : BAX
GLOBAL PTE LTD


NO.17 CHANGI
SOUTH ST. 2


SINGAPORE 486129


SINGAPORE


*


*


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


20

















 


EXHIBIT
B: Authorized Purchasers


 


1) InFocus Corporation


27700B
SW Parkway Avenue


Wilsonville,
Oregon 97070-9215


United
States of America.


Tel
: 503-685-8888


Fax
: 503-685-8845


 


2)
InFocus Systems Asia Pte Ltd


238A
Thomson Road, #18-01/04


Novena
Square


Singapore
307684


Tel
: 65-334-9005


Fax
: 65-6565-1080


 


3)*


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


21

















 


Exhibit C: InFocus Quality Agreement


 


ARTICLE 1 – PURPOSE


 


The purpose of this Agreement is to
set forth the terms and conditions under which the Parties shall elaborate and
implement common quality targets and guarantees regarding the Products. This
agreement is attached to and made part of the Warranty section

(Section 6.0).


 


ARTICLE
2 – QUALITY TARGETS


 


2.1.
QUALITY TARGET DEFINITION


 


The
parties agree to minimum quality targets as follows:


 


	
  Volume Milestone

  	
   

  	
  PPM Level

  	
   

  	
  Sigma Level

  
	
  Pilot Build

  	
   

  	
  *

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  After 25,000
  units

  	
   

  	
  *

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  After 50,000
  units

  	
   

  	
  *

  	
   

  	
  *

  



 


2.1.1 Co-developer
will use best faith efforts to work  towards a * sigma quality target for the product.


 


2.1.2
Quality and Reliability failure rates in the field shall not exceed *%
annually.


 


2.2.
PROBATION STATUS


If
Supplier cannot initially meet the Quality Target (based on validated failure
data), then Supplier will be placed on Probationary Status. Supplier shall
develop and implement a Continuous Quality Improvement Plan for the Product
which will achieve the Quality Target in no more than a six  (6) month period of time. If Supplier fails
to meet the Quality Target during such period, InFocus shall have the right
(but not the obligation) to cancel the Agreement and outstanding Purchase
Orders shall remain in place with Supplier providing targeted screening of
Products (pipeline inventory and/or other sites as designated by InFocus)
delivered to InFocus so that InFocus will have no liability for specific
Products which do not meet the Quality Target.Epidemic and Catastrophic failures
are as defined in Exhibit H.


 


ARTICLE 3 – WORK GROUP DEFINITION


 


In order to facilitate
the communication between the Parties, each Party shall make known the
appropriate geographical and/or worldwide representatives to form a “Working
Group”.


 


The
Working Group’s functions are:


 


•                  To improve communication between the
parties in the quality field


•                  To lead evolution towards a “zero defect”
total quality for Products.


•                  To improve communication and co-operation
in order to increase mutual confidence.


•                  To update on an agreed upon schedule, the
list of Products, quality targets, and procedures covered by this Quality
Agreement.


•                  To implement a weekly data summary, SPC,
and issues list report.


 


Meetings
of the working group are organized on a regular basis, at locations to be
defined.


The
main objective of these meetings is to review the performance history to the
Quality Targets, to define and supervise corrective actions, to ensure the
dialogue between the two Parties.


 


In case
of a major issue, an exceptional meeting may be organized.


 


ARTICLE 4– QUALITY ASSURANCE


 


Supplier
shall maintain a quality management system which meets the mutually agreed upon
objectives stipulated in ARTICLE 2 of this Quality Agreement. Supplier
shall manufacture and test the Products in accordance with a quality management
system put into place by Supplier to meet such requirements, and which is
reasonably acceptable to InFocus.


 


If
Supplier receives production or test equipment, software, services, materials
or other supplies from third parties for the manufacture or quality assurance
of the Products, Supplier shall ensure that these are in compliance with said
quality management system, whether it be by contract with those parties or
through carrying out itself such tests as are necessary to assure compliance
with the quality management system.


 


These
procedures shall be used for manufacturing of the Products.


 


The
Supplier will pay for all costs related to any event of a major quality event
that needs direct InFocus involvement at the Suppliers or other facilities.


 


ARTICLE 5 -  VISITS OF SUPPLIER FACILITIES BY INFOCUS


 


InFocus
may request to visit Supplier’s or sub-contractors facilities including
selected manufacturing lines. Supplier agrees to allow access to its
procedures, manufacturing and quality control sites. InFocus will be required
to sign a separate Confidentiality Agreement for access to Supplier’s highly
valuable confidential processes.InFocus will endeavour to inform Supplier at
least (1) one week before the visit. In case of a major issue, exceptional
meetings may be organized for anytime during normal business hours, as agreed
between the Parties. Supplier will provide office space, Internet and telephone
connections/access.


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


22

















 


ARTICLE 6 – CONDITIONS TO
INTRODUCE / CHANGE PRODUCTS


 


6.1. INTRODUCTION OF
PRODUCTS


Before any introduction of Products
into any of InFocus’ applications, an appropriate validation shall be executed
by the Parties.


 


The
Product must be qualified according to Supplier’s qualification procedures,
which will be provided upon InFocus’ request.


 


Supplier
shall issue a qualification report for each Product and this report shall be
given to InFocus for review and approval.


 


In
addition, Supplier will validate the Products according to InFocus process
defined in the Quality Plan as provided in advance by InFocus and as agreed by
Supplier. Supplier will identify non-conformities to the Product’s
Specifications, and will take action to remedy such non-conformities.


 


The
Parties may agree to run additional qualification steps or tests.


 


If any of the above requirements are not achieved, InFocus shall be
informed and corrective action steps initiated with a defined schedule.
Supplier’s qualification procedure shall be agreed to in writing by InFocus and
Supplier.


 


In the absence of a InFocus
Specification, Supplier name ‘s final Specifications will be used as reference
after validation by InFocus.


 


As necessary, InFocus reserves the right to have any qualification data
validated at InFocus’s cost by an authorized lab selected by InFocus.


 


6.2  CHANGE IN PRODUCTS MANUFACTURING 


Any major change in production
process or any change that will result in change to fit, form, or function of
the Product shall be transmitted to InFocus in writing prior to any action and
shall include documented information about any modification, even temporary, of
raw materials, manufacturing process, manufacturing site, packaging and product
configuration affecting any Products.


 


Any Product, manufacturing or packaging changes affecting fit, form, or
function of the Products shall also be part of the agenda at the regular
meetings by the Work Group’s Representatives.


 


In case of any change affecting fit, form, or function, Supplier shall
wait for the written agreement from InFocus before delivery.


 


As necessary, InFocus reserves the right to have any modifications,
described in a change notice, validated at InFocus cost by an authorized lab
selected by InFocus.


 


In case of temporary change affecting fit, form, or function, a request
for deviation shall be issued by Supplier and is subject to approval by InFocus.


 


ARTICLE 7 – PROCEDURE IN CASE OF
DEFECT


 


7.1
PROCEDURE FOR DEFECTIVE PRODUCTS


 


Supplier
shall not deliver any Products that do not meet the Specifications or are
otherwise not manufactured in accordance with the agreed-upon quality
management system (“Defective Products”).


 


In the event InFocus receives any Defective Products, InFocus
shall have the right to return such Defective Products to Supplier based on an
RMA process with the RMA issued by Supplier. The defect will be re-confirmed
either by Supplier’s internal laboratory or if necessary, by an authorized
laboratory acceptable to both parties, In the event such defects are confirmed
by the laboratory, Supplier will bear testing, transportation, and other
associated costs. In the event such defects cannot be confirmed, then InFocus
shall bear such costs.


 


In case of a major issue,
an exceptional meeting can be set up and representative samples may be sent,
along with a Supplier Corrective Action Request, to Supplier for analysis.


Supplier will agree to
respond within 24 hours of receipt of major defect issue with preliminary
analysis information of the Defective Product if feasible given the defective
component, following within 5 days with detailed root cause analysis. Root
cause analysis times will be negotiated in good faith by the parties when the
analysis must be conducted with Product part supplier or the analysis
capabilities of Supplier and/or external lab are not sufficient to perform the
needed analysis. Major defects shall be limited to:


1) Defects that would
create a safety hazard to assembly staff integrating the Product into the
InFocus television chassis.


2) Defects that would
create a safety hazard for the end customer.


3) Product that is found
to be D.O.A.


4) Product that is found
to produce a picture that is unacceptable/distorted beyond use.


 


7.2 
COST OF DEFECTIVE PRODUCTS


When Supplier’s
responsibility for the Defective Product has been determined by joint agreement
by the parties, Supplier shall take responsibility for correcting the defect by
repair, replacement, or credit, at Suppliers’ option. Prior to electing such
option, Supplier shall consult with InFocus and use its best efforts to take
InFocus’s preference, if any, into consideration.


 


7.3 PROBATION STATUS


In the event that
Supplier’s Product consistently does not meet the Quality Level or
Specification agreed to by the parties, InFocus reserves the right to place
Supplier on Probationary Status for a period of 3 months. During this
Probationary Status time, Supplier is required to demonstrate continuous
Product Quality Improvement.


Failure to accomplish
this improvement may result in termination of the Agreement and /or Purchase
Orders, with no liability for specific Products which do not meet the Quality
Target or Specification.


 


23

















 


EXHIBIT
D: Product Regulatory Compliance


 


Co-development


 


*:


 


•                  *


•                  InFocus Product Safety and EMC personnel will
conduct final compliance tests with Agencies;


•                  InFocus compliance personnel shall
participate in design reviews at important project milestones (prior to tool
release, prototype complete etc.);


•                  InFocus compliance personnel will negotiate
all regulatory engineering judgments;


•                  Supplier will supply prototype samples to
support Agency testing;


•                  Agency Certificates, Licenses and Inspection
procedures shall be held by InFocus.


•                  Supplier may be allowed to act on InFocus’s
behalf for Agency file updates depending on the complexity of the update.


 


As the Co-development relationship matures, InFocus
may choose to lower its involvement level and delegate some regulatory tasks to
the Supplier if it shows the capability to handle the task.


 


Contract Manufacturing


 


•                  *


•                  Supplier shall ensure factory is in good
standing by providing a copy of the complete inspection report from regulatory
agency.


•                  Supplier shall inform InFocus as soon as a
non compliance is issued during inspection and provide a plan of corrective
action.


•                  Supplier shall maintain records of
manufacturing testing (i.e. hipot, ground continuity) for a period of at least
7 years.


 






*
Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the omitted
portions.


 

















 


EXHIBIT
E: QBR Reporting


 


25

















 


EXHIBIT
F: Government Compliance


 


1.               Environmental Requirements. Without limiting the generality of any
other provision of this Agreement, Supplier warrants and agrees that:


 


Product Content. All Products and their
packaging will comply with all applicable laws, and for purposes of this
Agreement, such specifications are part of the Requirements and Specifications
for each Product.


Shipment. All Products will be
shipped in conformance with all applicable and international transportation
regulations including, where applicable, regulations regarding chemicals and
hazardous materials, dangerous goods, or fumigation and aeration. All packaging
materials, including pallets, will be free of pests and comply with national
and international regulations regarding Solid Wood Packing Materials (SWPM)
where applicable.


Chemical Substances. Each chemical
substance contained in a Product is on the inventory of chemical substances
compiled and published by the United States Environmental Protection Agency
under the Toxic Substances Control Act. 


MSDS. Supplier will provide complete and accurate
Material Safety Data Sheets (MSDS) for Products to InFocus prior to shipment. 


Environmental Information. Supplier will furnish
InFocus any information reasonably requested by them to confirm compliance with
applicable laws or to determine the environmental effects of materials included
in the Products or in their packaging. 


Disposition of Excess Materials. Supplier will recycle or
dispose of any excess or waste Products (including damaged or Noncomplying
Products returned to such Supplier) in compliance with the provisions of this
Agreement, applicable laws and any specific instructions received from InFocus.



Take Back. Supplier will accept back,
free of charge, and dispose of in an environmentally sound manner in compliance
with applicable law, any Products, material included in the Products, or their
packaging returned fright prepaid by InFocus from any country that legally
requires Product be taken back from the user at the end of Product life. 


Ozone Depleting Substances. Supplier hereby certifies
that no Product nor any component:


 


a.               Contains any “Class I Substances” or “Class
II Substances” as those terms are defined in 42 U.S.C Section 7671 and
implementing regulations of the United States Environmental Protection Agency
at 40 C.F.R Part 82, as now in existence or hereafter amended; or


b.              Has been “manufactured with” a process
that uses any “Class I or Class II Substances” (as those terms are defined
above).


 


Continuous Improvement. Supplier will
continuously implement and maintain processes and policies designed to protect
the environment at each Facility.


Supplier. Supplier will require that
each of its component suppliers and each of its subcontractors comply with each
of the foregoing as regards each such entity’s activities relating to any
Product or component.


 


2.               Social and Environmental
Responsibility. Supplier
warrants that in all countries in which such Supplier and, to its knowledge,
information and belief, its subcontractors do business, its and their
operations comply with all applicable laws and regulations governing protection
of environment, employee health safety, and labor and employment practices,
including but not limited to, laws and regulations relating to working hours,
working conditions, wages, benefits, child labor, forced labor, freedom of
association and equal employment opportunity.


 


3.               Accessibility Requirements. Supplier will, and will cause each of its component
suppliers  and each of its subcontractors
to, comply with all federal, state, local and foreign laws, rules, and
regulations applicable to accessibility of information technology for people with
disabilities. Upon request, Supplier will provide InFocus information regarding
accessibility features of Supplier and Supplier’s or subcontractor’s products
and services.


 


4.               Procurement Regulations. InFocus is a commercial corporation that is also
a contractor and subcontractor for the U.S. government. All of the Products to
be purchased from Supplier by InFocus pursuant to a subcontract/purchase order
in the United States, its territories, possessions, the District of Columbia
and Commonwealth of Puerto Rico are deemed to be “Commercial Items” as defined
in Federal Acquisition Regulation (“FAR”) 2. 10 1,
Part 12 and 52.202.1 (c). The clauses identified in FAR 52.244-6 are hereby
deemed incorporated into this Agreement with respect to all Commercial Items.
In addition, in accordance with determinations made as a result of U.S.
government


 


26

















 


audits
of InFocus, Supplier hereby agrees to comply with, and to flow down to each of
its subcontractors and components suppliers, FAR 52.219-9, Small Business
Subcontracting Plan. Furthermore, pursuant to FAR 52.212-5(e) and/or

FAR 44.402(b), Supplier agrees to comply with, and to flow down to each of its
applicable subcontractors and components suppliers, the following FAR clauses,
which are hereby incorporated by reference into this Agreement, with the same
force and effect as if they were presented in full:


FAR
52.222-26, Equal Opportunity (February 1999)


FAR
52.219-8, Utilization of Small Business Concerns (October 2000)


 


APPICABLE IF THE
SUBCONTRACTOR/PRUCHASE ORDER  EXCEEDS
$2,500: FAR 52.222-41, Service


Contract Act of 1965, as
Amended (May 1989) if the purchase order is principally for the furnishing of
services through the use of service employees.


 


APPICABLE IF THE
SUBCONTRACT/PURCHASE ORDER IS FOR $10,000 OR MORE:


FAR 52.222-35, Affirmative
Action for Disabled Veterans and Veterans of the Vietnam Era (April 1998)


FAR 52.222-36,
Affirmative Action for Workers with Disabilities (June 1998)


 


5.               Equal Employment Opportunity and
Non-Discrimination. In
addition to the foregoing, each Supplier warrants that its United States
operations comply with the requirements of Executive Order 11246, the
Vocational Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance
Act.


 


6.               Anti-Terrorism Security Measures.
Supplier agrees to comply,
and to cause each of its subcontractors to comply, with all applicable laws
relating to anti-terrorism security, as well as any additional anti-terrorism
security requirements specified in writing by InFocus. Supplier will be liable
for all fines and penalties imposed on InFocus and other damages incurred by
InFocus, relating to Supplier’s, or any of its subcontractors’, non compliance
with any such anti-terrorism security laws or requirements. Supplier will, upon
request, provide to InFocus written descriptions of such anti-terrorism
security measures.


 


7.              Trade Regulations


 


(a)
Generally. Supplier acknowledges that it is knowledgeable about such
laws, regulations, and related InFocus requirements, and agrees to comply with
the same.


 


(b)
Country of Origin. Supplier, at each of its Facilities, is responsible
for determining the appropriate country of origin for the Products and for
marking the Products in accordance with the requirements and laws. Further,
Supplier will cooperate fully with InFocus in supplying data to facilitate
their origin reporting requirements and qualification for preferential origin
programs, including all requested origin analysis, certificates of origin, manufacturer’s
affidavits, data (e.g. EDI) transmissions, and special reporting.


 


(c)
Invoice Requirements. The following trade data elements must be able to
be printed out or be capable of being transferred electronically on each
commercial invoice prior to shipment of the related Products and must be sent
to InFocus via the standard electronic/EDI shipping confirmation signal:


(i)      Country of Origin (line item level);


(ii)     Import Country HTS Classification (line
item level);


(iii)    ECCN (line item level);


(iv)    License (line item level);


(v)     Destination Control Statement:


(vi)    InFocus Part Number; and


(vii)   Appropriate shipping term.


 


27

















 


(d)
Document Retention and Audit. Further, Supplier must maintain, and reproduce
upon demand, all documentation relating to the international transport of
Products for a period of not less than six (6) calendar years from the date of
each shipment. All such record keeping systems will comport with the legal
requirements of the U.S. and other nations including requirements set out in
Parts 762 and 772, U.S. Department of Commerce, Export Administration
Regulations and the U.S. Customs Record-Keeping Regulations, 19 C.F.R. 163. The
affected Supplier will proved immediate notice to InFocus (via such Parties’
appointed representatives) in the event of an action by the U.S. or other
national government customs/export authorities that relates specifically to
Products or Services provided to InFocus. Suppler will afford InFocus and their
duly appointed agents reasonable access to the Facilities for trade compliance
audits purpose and further agrees to respond in a timely manner to an InFocus
request for production of trade control records and to comply with all remedial
or corrective actions that InFocus may specify.


 


(e)
Importer of Record. For each transaction where InFocus is to be the
importer of record, Supplier is responsible for ensuring that the related
commercial documentation accurately reflects the actual price paid or payable
between InFocus and Supplier. It is Supplier’s responsibility to reconcile its
financial records against commercial documentation in order to validate InFocus
use of transaction value, whenever possible, for declarations to customs. When
transaction value cannot be applied, the affected Supplier will apply
sequentially the World Trade Organization valuation rules for InFocus
transactions. Supplier acknowledges that it is knowledgeable about the
requirements for transaction value declarations and agrees to comply with the
same.


 


(f)
Duty Drawback. Unless otherwise requested, Supplier will allow InFocus
to be the importer of record for all Product shipments. If InFocus is not the
importer of record and Supplier obtains duty drawback rights to Products,
Supplier will, upon InFocus’ request, provide it with documents required by the
customs authorities of the country of receipt to prove importation and to
transfer duty drawback rights to InFocus if it has paid or arranged deposit of
the subject duties.


 


(g)
Product Classification.


 


(1)
Product Export and Import. InFocus will provide the Export Control
Commodity Numbers (“ECCN”) and Harmonized Tariff Code Schedule Numbers, as
published by the U.S. Office of Tariff Affairs and Trade Agreements (“HTS”) for
its Products. Supplier will comply with applicable laws governing the import or
export of Products and will be solely responsible for obtaining all requisite
licenses and other authorizations.


 


(2)
Country of Origin Marking. Except as provided in the applicable Agreement
Amendment, Supplier will mark the Product containers, in English, as well as
all Product units with its country of origin, in compliance with Section 304 of
the United States Tariff Act. If the Product itself cannot be marked legibly
due to size, then its immediate container must be marked with a signed
certificate stating Country of Origin (manufacture) by quantity and part number
(InFocus and Supplier’s).


 


(h)
Government Compliance. Supplier will comply, and will cause each of its component
suppliers and each of its subcontractors to comply, with all federal, state,
local and foreign laws, rules and regulations applicable to the performance of
such Supplier’s Transaction Documents and its Products and Service. Such
compliance will include obtaining any approvals necessary to allow InFocus to
sell, and its customers to use, the Products and Services.


 


(i) Changes to Governmental Product Standards. Supplier will immediately give notice to
InFocus if any upgrade, substitution, or other change (even those that are not
defined as Engineering Changes) to a Product provided by Supplier is required
to make that Product meet applicable safety standards, statutes, or other
governmental orders or regulations. Supplier will bear all costs associated
with upgrading its manufacturing process to meet such safety standards,
statutes, or other governmental orders or regulations. All Products affected by
such changes and already purchased by InFocus may, at InFocus’ election, be
made subject to a Product Recall under Section 4.10.2  (Product Recalls).


 


28

















 


EXHIBIT
G: InFocus Restricted Material & Substances List


 


	
  InFocus
  Restricted Materials and Substances

  Equipment
  Listing of Restricted Materials and/or Substances Requiring Declaration
  Restricted Materials and
  Substances Lists A and B. Lists A and B are consistent with the Material
  Composition Declaration Guide for Electronic Products (formerly Joint
  Industry Guide).

  
	
  The
  following materials are restricted in equipment products or components
  supplied to or purchased by InFocus. Some uses may be allowable and will be
  evaluated by InFocus. Complete the form entitled “Material Composition
  Declaration.” (MCD) form and e-mail to ross.kruse@infocus.com.

  



 


	
  Material/Substance

  	
   

  	
  Typical Uses

  	
   

  	
  Requirements and Exceptions

  or Maximum Concentration Value (MCV)

  
	
  List
  A (MCDG)*

  	
   

  	
   

  	
   

  	
   

  
	
  Asbestos

  	
   

  	
  Heat
  insulation

  	
   

  	
  No
  intentional addition

  
	
  Azo
  Colorants

  	
   

  	
  Wire
  coating material (inks, coatings, pigments and dyes)

  	
   

  	
  No
  intentional addition of dyes and pigments based on the restricted amines
  listed (except if breakdown products are less than 30 ppm)

  
	
  Cadmium/Cadmium
  Compounds

  	
   

  	
  Thick
  film inks on circuit boards, solid state relays, batteries, (inks, pigments,
  dyes, coatings, plastics), certain glass filters, cadmium plating in high
  voltage applications, plugs, commutators, fuses, PVC sheathed wires,
  photocouplers, photodetectors, solder, electrical contacts, resistors, pole
  plates

  	
   

  	
  No
  intentional addition except for uses in electrical safety applications. No
  contaminant levels > 100 ppm. Cadmium used as a stabilizer in PVC wire
  insulation is acceptable at levels below 100 ppm.

  
	
  Hexavalent
  Chromium/Hexavalent Chromium Compounds (Cr+6)

  	
   

  	
  Chromate
  conversion coatings for metal corrosion protection, EMI plating, (inks,
  pigments, dyes, coatings, plastics), vermiculite contaminant, fasteners,
  screws, nuts, shafts, etching of anodized aluminum, passivation of stainless
  steel

  	
   

  	
  No
  intentional addition and no contaminant levels > 1000 ppm

  



 


29

















 


	
  Lead/Lead
  Compounds

  	
   

  	
  Solder,
  weights, lubricants, glass lenses, light bulbs/tubes, paints, coatings,
  (inks, pigments, dyes, coatings, plastics, PVC sheathed wires, vulcanized
  rubber molding, ceramics, electrodes, resistor component, semiconductors,
  zinc plating, die-bond material, sensor component material, humidity sensors,
  X-Ray shielding plastic plates, rubber

  	
   

  	
  No
  intentional addition (except for use in glass of Cathode Ray Tubes,
  fluorescent tubes, optical lenses; as an alloying element in steel containing
  up to 0.35% by weight, lead in aluminum containing up to 0.4% lead by weight,
  and as a copper alloy containing up to 4.0% lead by weight; lead in high
  melting temperature type solders *85% lead); lead in solders for servers, storage
  and storage array systems (until 2010); lead in solders for network
  infrastructure equipment for switching, signaling, transmission, as well as
  in network management systems for telecommunication; lead in electronic
  ceramic parts, e.g. piezoelectronic devices; lead in shielding for
  radiographic applications; lead in UPS transformers for medical devices). No
  contaminant levels > 1000 ppm. Lead used as a plasticizer in PVC wire
  insulation at levels < 1000 ppm is allowed, but in the case of external
  cables, external cords, power and interconnect cables, lead must be below 300
  ppm.

  
	
  Mercury/Mercury
  Compounds

  	
   

  	
  Electrical
  relays/switches, lamps, batteries, inks, pigments, dyes, coatings, plastics,
  scanners, LCD, mercury electrodes, dry cells, mercury cells, electrical
  contacts, sensors, rubber, resins

  	
   

  	
  No
  intentional addition (except for use in specialty lamps and backlit LCD
  lamps) No contaminant levels > 1000 ppm

  
	
  Ozone
  Depleting Substances (ODS)

  	
   

  	
  Cleaning
  agents, lubricants, adhesives, cooling agents, foaming plastics, halogen
  lamps, fire extinguishers

  	
   

  	
  No
  intentional addition or no use in manufacturing, of Class I ODS Class II
  cannot be present at levels > 1000 ppm

  
	
  Polybrominated
  biphenyls (PBB) , and Polybrominated diphenyl ethers (PBDE)

  	
   

  	
  Flame
  retardants, plastics, circuit boards, foams, wire insulation

  	
   

  	
  No
  intentional addition and no contaminant levels > 1000 ppm

  
	
  Polychlorinated
  Biphenyls (PCBs)

  	
   

  	
  Electrical
  transformers and heat exchangers

  	
   

  	
  No
  intentional addition

  
	
  Polychlorinated
  Naphthalenes (more than 3 chlorine atoms)

  	
   

  	
  Elastic
  rubber, elastomer belts, oil seals, mechanical seals, insulating oil in
  capacitors, plastic parts

  	
   

  	
  No
  intentional addition

  
	
  Radioactive
  Substances

  	
   

  	
  Optical
  lenses

  	
   

  	
  No
  intentional addition

  
	
  Short
  Chained Chlorinated Paraffins

  	
   

  	
  Thermoplastic
  PVC parts, substrate conductor and wire, sheathing of electrical wires

  	
   

  	
  No
  intentional addition

  



 


30

















 


	
  Tributyl
  Tin (TBT) and Triphenyl Tin (TPT)

  	
   

  	
  Silicone
  bonding agents, rubber catalyst, SAW filters Note: Tin-Lead solder does not
  contain organic tin

  	
   

  	
  No
  intentional addition

  
	
  Tributyl
  Tin Oxide (TBTO)

  	
   

  	
  Printing
  inks, flameproof plastics, rubber elastomers

  	
   

  	
  No
  intentional addition

  
	
  List
  B (MCDG)*

  	
   

  	
   

  	
   

  	
   

  
	
  Antimony/Antimony
  Compounds

  	
   

  	
  Optical
  lenses, solder, printing inks, wire coating material, semiconductor devices,
  resistor component, transformers, insulating tapes, rubber, DC converters,
  printed circuit boards, resin material

  	
   

  	
  Report
  at levels > 1000 ppm

  
	
  Arsenic/Arsenic
  Compounds

  	
   

  	
  Glass,
  metal bonding agents, coatings, LED’s, semiconductors, photocouplers,
  fiberglass, insulating tapes, printed circuit boards, optical lenses

  	
   

  	
  Report
  at levels > 1000 ppm

  
	
  Beryllium/Beryllium
  Compounds

  	
   

  	
  Beryllium-copper
  electrical contacts, EMI gaskets, flat springs, relays, switches, jacks,
  sockets, wires

  	
   

  	
  Report
  at levels > 1000 ppm

  
	
  Bismuth/Bismuth
  Compounds

  	
   

  	
  Electrical
  solder, copper circuits, lead alloys, piezoelectric elements, electrodes

  	
   

  	
  Report
  at levels > 1000 ppm

  
	
  Brominated
  Flame Retardants (other than PBB or PBDE)

  	
   

  	
  Plastics
  additive, vulcanized rubber molding, semiconductors, LCD, TV chassis

  	
   

  	
  Report
  at levels > 1000 ppm

  
	
  Nickel
  (external applications only)

  	
   

  	
  Batteries,
  optical reflection coatings, lead frame, thick film conductors,
  semiconductors, decorative plating, electroplating for corrosion protection,
  ceramic capacitors, magnetic recording media

  	
   

  	
  Report
  at levels > 1000 ppm

  
	
  Phthalate
  esters e.g. di n-butyl phthalate (DBP), di-ethylhexyl phthalate (DEHP),
  Bis(2-methoxyethyl) phthalate (DMEP)

  	
   

  	
  Equipment,
  plastics, paint accelerants, safety glass, adhesives, lubricants

  	
   

  	
  Report
  at levels > 1000 ppm

  
	
  Polyvinyl
  Chloride (PVC)

  	
   

  	
  Wire
  insulation, plastics, tubing, conduit, packaging (blisters, shrink bands,
  flexible packaging)

  	
   

  	
  Report
  at levels > 1000 ppm

  



 


31

















 


	
  Selenium/Selenium
  Compounds

  	
   

  	
  Semiconductors,
  photocells, printing inks, photocouplers

  	
   

  	
  Report
  at levels > 1000 ppm

  



 






	
  *
  InFocus’ Listing of Restricted Materials and Chemicals correlates with the
  Material Composition Declaration Guide, Lists A and B, recognized by industry
  associations, for Electronic and Electrical Products. The list of compounds
  and their CAS numbers are provided in this work sheet.

  
	
   

  
	
  Maximum
  concentration value such as 1000 ppm shall apply at the homogeneous material
  level. Homogeneous material means a material that cannot be mechanically
  disjointed into different materials or materials of uniform composition
  throughout. Mechanically disjointed means materials that can be separated by
  mechanical means such as unscrewing, crushing, grinding, and desoldering. A
  semiconductor component would have several homogeneous materials, i.e., the
  plastic housing, lead frame, tin plating of the lead frame wires, lead frame
  alloy, etc. An electric cable would have three materials, i.e., the internal
  conductor wire, the conductor wire insulation, and the outside cable jacket.

  



 


32

















 


EXHIBIT
H : Product Warranty & Service Support.


 


1.1 Scope.


*


 


1.2 Product Quality.


*


 


1.3 Warranty.


*


•


Warranty Cost *


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


33

















 


1.4 Catastrophic Failure


*


 


1.5 No Waiver


*


 


1.6 Service and Support


 


*


•


 


1.7 Service Spares:


 


*


 






 *Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


34

















 


*


 


1.8 Terms of Sale - Service Parts:


*


 


1.9 Repair, Outside Product Warranty Period, Inside Product EOL Date.


*


 


1.10 Repair from Product EOL Date to Product EOSL Date.


*


 


1.11 Repair Billing.


*


 


1.12 No Problem Found (NPF).


*


 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


35

















 


 


1.13 DOA Returns.


*


 


1.14 Reject Materials Authorization (RMA) Procedure.


*


 


1.15 Key
Component Warranty table


 


	
  Platform

  	
   

  	
  Commodity

  	
   

  	
  Supplier

  	
   

  	
  Warranty

  	
   

  
	
  Gecko

  	
   

  	
  Ballast

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  Lamp

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  DMD

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  Power
  Supply

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  COA

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  Lens

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  Colorwheel

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  Remote

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  Fan

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Gecko

  	
   

  	
  Keypad

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nacho

  	
   

  	
  Lamp

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Nacho

  	
   

  	
  DMD

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Nacho

  	
   

  	
  Power
  Supply

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Nacho

  	
   

  	
  Lens

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Nacho

  	
   

  	
  Semi-coa

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Nacho

  	
   

  	
  Colorwheel

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Nacho

  	
   

  	
  Remote

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  
	
  Nacho

  	
   

  	
  Fan

  	
   

  	
  *

  	
   

  	
  *
  Months

  	
   

  



 






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


36

















 


	
  Nacho

  	
   

  	
  Keypad

  	
   

  	
  *

  	
   

  	
  *
  Months

  



 


1.16 Pricing
table


 


	
   

  	
  Description

  	
   

  	
  TAT

  	
   

  	
  Cost

  	
   

  	
  Title

  	
   

  	
  Terms

  	
   

  
	
  2

  	
  In
  Warranty repair (Cust)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  Supplier

  	
   

  	
  *

  	
   

  
	
  3

  	
  In
  Warranty repair (InFocus)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  Supplier

  	
   

  	
  *

  	
   

  
	
  4

  	
  In
  warranty repair at ASP (cust)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  IFC

  	
   

  	
  *

  	
   

  
	
  5

  	
  Out
  of warranty repair at ASP (InFocus)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  IFC

  	
   

  	
  *

  	
   

  
	
  6

  	
  Out
  of warranty repair (Cust)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  Supplier

  	
   

  	
  *

  	
   

  
	
  7

  	
  Out
  of warranty repair (InFocus)- Refurb

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  Supplier

  	
   

  	
  *

  	
   

  
	
  8

  	
  “Fluff
  and Buff” (InFocus)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  Supplier

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  Out
  of warranty component repair

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  Supplier

  	
   

  	
  *

  	
   

  
	
  10

  	
  In
  warranty component repair

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  Supplier

  	
   

  	
  *

  	
   

  



 


Note :  *


 


*


 


*






*Certain information on this page
has been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.


 


37

















 


Section 6: Product
Costs


 


38