EX-4.13 4 f20f2016ex4xiii_kornit.htm MASTER PURCHASE AGREEMENT, DATED JANUARY 10, 2017,
BETWEEN THE REGISTRANT AND AMAZON CORPORATE LLC
Exhibit 4.13
[* * *] Portions of this agreement were omitted and a complete copy of this agreement has been provided
separately to the Securities and Exchange Commission pursuant to the company’s application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
MASTER PURCHASE AGREEMENT
This Master Purchase Agreement
is between Amazon Corporate LLC (“
Amazon
”) and the “
Supplier
” as listed
below and its Affiliates. This Agreement sets the terms for Supplier and its Affiliates to sell certain Products and
Services to Amazon and other Purchasers, including [* * *]. Initially capitalized terms are defined at the end of
the Standard Terms or elsewhere in this Agreement. The effective date of the Agreement is May 1, 2016
(“
Effective Date
”).
Supplier
:
Kornit Digital Ltd.
Entity Type:
(e.g., New York corporation)
Israeli company
NDA effective date:
January 19, 2016
Agreed to by both parties:
AMAZON CORPORATE LLC
SUPPLIER
By:
/s/ Young Lee
By:
/s/ Gabi Seligsohn
Name:Young Lee
Name:Gabi Seligsohn
Title:
Director, Business Development
Title:
CEO
Date
Signed: January 10, 2017
Date
Signed: January 10, 2017
By:
/s/ Guy Avidan
Name:Guy Avidan
Title:
CFO
Date
Signed: January 10, 2017
Each party’s contacts for routine business and technical correspondence regarding this Agreement are:
Amazon
Supplier
Technical Contact
Name and title
Aaron Yanelli
Udi HarNof
e-mail
[* * *]
[* * *]
Business Contact
Name and title
Aaron Yanelli
Gilad Yron
e-mail
[* * *]
[* * *]
Each party’s contacts to receive legal notices about this Agreement are:
Amazon
Supplier
With a copy to:
With a copy to:
By mail:
By courier or personal delivery: By mail:
By
courier
or
personal
delivery:
c/o Amazon.com
c/o Amazon.com
P.O. Box xxx
Guy Avidan
P.O. Box 81226
410 Terry Avenue North
Rosh Haain, Haamal
12
Israel
Seattle, WA 98108-
1226
Seattle, WA 98109-5210
U.S.A.
Israel
Attention: CFO
U.S.A.
Attention: General Counsel
Attn: CFO
By e-mail: [* * *]
Attn: General Counsel
By e-mail:
Fax: +972.3.908.0280
Attention: CFO
Fax: 206-266-7010
[* * *]Attention: General
Counsel
By e-mail:
[* * *]
Master Purchase Agreement (Global)
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Each party may update its contacts above by notice to the other. All legal notices given under this Agreement and
any routine business and technical correspondence must be written and in English, and the effective notice date
will be the date of receipt or in the case of email, the date on which such notice is transmitted.
This “
Agreement
” means and consists of:
a.
the foregoing signature and notice pages,
b.
the Standard Terms and Conditions attached as Exhibit A (“
Standard Terms
”),
c.
the [* * *] attached as Exhibit B,
d.
the Information Security Requirements attached as Exhibit C,
e.
the Services and Service Level Agreement Schedule attached as Exhibit D,
f.
the Product Pricing Schedule attached as Schedule 1,
g.
the Specifications attached as Schedule 2,
h.
the software list attached as Schedule 3, and
i.
consignment part description and prices attached as Schedule 4.
Concurrent with this Agreement, the parties are also agreeing to a warrant agreement, whereby Amazon will
receive certain rights to warrants to Supplier.
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EXHIBIT A
STANDARD TERMS AND CONDITIONS
1. Products; Services.
1.1 Products.
Supplier will sell Products and
Services to Purchaser during the Term. Except as
provided in Section 1.5, below and 4.2 below, Supplier
will not stop making or restrict the supply of Products
or the performance of Services under this Agreement
during the Term.
1.2 Services.
Supplier will provide support
and other services (“
Services
”) to Purchaser as the
parties may agree from time-to-time and specified in:
(a) a Purchase Order issued by Purchaser to Supplier;
or, (b) a Work Order or addendum signed by the parties,
in accordance with the terms and conditions of this
Agreement. References in this Agreement to a
“Purchase Order” will be interpreted to include “Work
Orders,” unless otherwise specified or inferred by the
context. Supplier will provide all equipment, software,
materials, spare parts, and supplies required to perform
the Services. During the Initial Warranty Period,
Warranty related Services will be performed at no
additional cost to Purchaser. Supplier will not
subcontract any Services or other obligations under this
Agreement without the prior written consent of Amazon
which consent shall not be unreasonably withheld. The
performance of Services or other obligations by an
Affiliate
of
Supplier
will
not
be
considered
subcontracting. Supplier is responsible for the
performance of its Affiliates under this Agreement and
for its subcontractor(s)’ compliance with the terms of
this Agreement. Supplier and its subcontractors will
comply with Amazon’s Rules (as shall be provided or
made available to them prior to or upon gaining access
to Amazon’s premises) with respect to Supplier’s
access to or use of Amazon’s premises. Supplier will
comply with the Service Level Agreement attached as
Exhibit D hereto.
1.3 Reservation of Rights; Restrictions
.
Unless specifically otherwise set forth in this
Agreement, Supplier reserves all of its rights, title and
interest to all intellectual property including the ideas,
concepts,
techniques,
inventions,
technologies,
processes, methodologies, patents, and rights in and to
the Products and to any software, programs and all
images, photographs, animations, video, audio, music
and text incorporated into the Products, trademarks,
copyrights and trade names relating to and in the
Products and their creation and all modifications,
improvements or changes therein or thereto (all jointly,
"
Supplier
Intellectual
Property
").
Purchaser
acknowledges and agrees that the Software is licensed
1.4 Prices.
Product and Services prices will be
as set forth in Schedule 1 or as otherwise agreed by the
parties. [* * *].
1.5 Changes.
Supplier will provide Amazon
with at least 12 months advance written notice
(“
Notice
”) of its intent to (a) stop supporting,
manufacturing, licensing, or selling a Product or
performing a Service (collectively “
EOL
”), or (b) make
changes to the Products, including design, location of
manufacture, manufacturing process or materials,
programming, or other inputs that in connection with
form, fit, function, performance, or reliability of the
Product would materially impact the ability to use of the
Products in the same manner as they were used before
such changes, (collectively “
Changes
”). Without
limiting the foregoing, Supplier will not ship any
changed Product to a Purchaser without first receiving
Amazon’s written consent. In the event of an EOL or
Product Change that is not acceptable to Amazon,
Supplier will provide Purchaser(s) with a last time buy
opportunity for EOL Products or Products subject to
Change(s). Purchasers will have the right to purchase
quantities of these Products up to the greater of the
quantities (a) purchased by Purchasers in the [* * *]
prior to receipt of Notice, or (b) forecasted by
Purchasers for the [* * *] after Notice is received.
Purchasers will place a Purchase Order for the last time
buy at least 30 days prior to the end of the Notice period.
The parties agree to mutually develop a plan to mitigate
any EOL or Product Change to ensure no adverse
business impact on Amazon.
1.6 Ink.
Notwithstanding Section 1.5, for at
least 36 months after the earlier of (i) the end of the
Term or (ii) 18 months after the purchase of the last
printer Product under the Agreement (the “
Wind Down
Period
”), Supplier agrees to manufacture and sell to
Purchaser Ink and all other parts, components, and
supplies (including print heads) necessary for continued
operation of all previously purchased printer Products
in such quantities as the Purchaser requests. The Ink and
other parts, components, and supplies will be
compatible with the Products without modification or
material degradation of Products’ performance and may
only be modified with Amazon’s prior approval.
Supplier will be relieved of the above undertakings in
this Section 1.6 if, after the first year of the Wind Down
Period, all of the following are true: (a) neither Supplier
nor any of Supplier’s distributors are making the Ink
commercially available, (b) during the most recent full
Ink Measurement Period, the aggregate amount of Ink
purchased under this Agreement was less than [* * *]
and not sold to Purchaser. Unless otherwise specifically
set forth in this Agreement, Purchaser never acquires
title to the Supplier Intellectual Property Rights or
Software and all rights not expressly granted herein are
reserved to Supplier.
Except as specifically otherwise set forth in
this Agreement, Purchaser shall not (i) create derivative
works based on the Products and/or the Software; (ii)
copy, frame or mirror any part or content of the Ink
and/or of the Software installed on the printer Product
as firmware; (iii) reverse engineer the Ink and/or the
Software, or any composition made using the Ink; (iv)
access the Software and/or Ink in order to build a
competitive product or service; (vi) change, distort or
delete any patent, copyright or other proprietary notice
which appear on or in the Product (or in the Software);
or (vii) operate or make use of the Products in any way
that violates any applicable law or regulation. In the
event Purchaser rents, leases, sells or otherwise
transfers the Products to a third party in accordance with
this Agreement; Purchaser agrees that it will require
such third party to be bound by the provisions of this
Section 1.3 hereof as a condition of such sale, rental,
lease or other transfer.
liters, and (c) upon receiving at least [* * *] prior written
notice that Supplier intends to discontinue Ink
production, Purchaser fails to commit to purchase at
least [* * *] liters of Ink during the current Ink
Measurement Period (or a prorated amount of Ink if the
Wind Down Period will expire before the end of the
current Ink Measurement Period). For the avoidance of
doubt, there will be no minimum Ink requirement for as
long as the Ink is made commercially available by
Supplier or Supplier’s distributers. Supplier warrants
that it will maintain at all times during the Term and
during the Wind Down Period, a reserve stock of Ink
(“
Reserve Ink
”) in [* * *] at least equal to [* * *].
Notwithstanding the above, the parties will discuss the
size of the Reserve Ink after the delivery of any Forecast
and may adjust the volume of Reserve Ink by mutual
written agreement.
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1.7
[* * *]
1.8
[* * *]
(1)
[* * *], and
(2)
[* * *].
1.9 Consignment Parts.
Supplier will store
mutually agreed upon Consignment Parts as set forth in
Schedule 4 hereto (and as updated as agreed upon,
periodically via email confirmed by both parties) at
Purchaser agreed upon designated sites, as may be
updated by the parties from time to time, solely for use
with Purchaser Products until (a) Purchaser purchases
such Consignment Parts from Supplier, (b) Purchaser
returns the Consignment Parts to Supplier, or (c) the
Agreement is terminated for any reason. Purchaser
employees with Supplier-provided Level 3 training,
designated Purchaser employees, and Supplier will each
have access to remove Consignment Parts from the
storage area (the “
Consignment Locker
”). Pricing for
the Consignment Parts will be as set forth in Schedule
4. Legal title to each Consignment Part transfers to
Purchaser at the time either (i) Purchaser designated
employees removes it from the Consignment Locker or
(ii) Purchaser accepts such Consignment Part by
Supplier. Consignment Parts used in the previous
quarter will be payable in accordance with the terms of
Section 7.2. Purchaser may reject, and return to
Supplier at Supplier’s expense, defective or damaged
Consignment Parts at no cost.
2. [* * *]; Affiliates.
2.1
[* * *].
2.2 Affiliates.
If any Amazon Affiliate wants
to buy Products or Services directly from Supplier
under this Agreement’s terms, it may issue a Purchase
Order, or enter into a Work Order or addendum under
this Agreement, and this Agreement will apply to those
purchases as if the Amazon Affiliate was a signatory to
the Agreement. Each purchase by an Amazon Affiliate
under this Agreement will be an obligation of that
Amazon Affiliate only, and Amazon will have no
liability for these purchases. The terms and conditions
of this Agreement will apply to each Supplier Affiliate
as if that Supplier Affiliate was a signatory to this
Agreement if: (a) Supplier utilizes the Supplier
Affiliate(s) to perform its obligations under this
Agreement; or (b) the Supplier Affiliate(s) accept a
Purchase Order or Work Order from a Purchaser for
Amazon.
3. Ordering.
4. Operations.
4.1 Manufacturing Facilities, Supply Chain
Management.
Supplier will manufacture the Product
only at the facilities originally approved by Amazon.
Any changes in location of manufacture are subject to
the notice requirements in accordance with Section 1.5
and
Amazon’s
approval,
which
may
not
be
unreasonably withheld. Supplier is solely responsible
for managing its supply chain and resources. Purchaser
has no liability for any aspect of Supplier’s supply chain
or operations.
4.2 Capacity Planning and Allocation.
Forecasts are for planning purposes only, are non-
binding, and are not an order, purchase, or commitment.
Amazon will [* * *] to provide Supplier a Forecast each
quarter (a “
Quarterly Forecast
”) of the estimated
printer Products that Purchaser will order in the next [*
* *] prior to the beginning of [* * *]. At a minimum,
Supplier will allocate enough manufacturing capacity,
components, raw materials, and parts for the Product to
be able to meet each Quarterly Forecast. To the extent
that amount of Products under the Purchase Orders
exceed the Quarterly Forecast, Supplier will not be
obligated to accept the Purchase Orders referring to
amount of Products exceeding the Quarterly Forecast,
provided however, [* * *].
4.3 Shipment, Packing, and Delivery.
Unless
otherwise mutually agreed to by the parties on an
individual Purchase Order, Supplier will deliver all
Product [* * *] (Incoterms 2010) to the location
designated in the Purchase Order. Supplier will ship the
Product units only via carriers qualified to generally
accepted international standards for shipment of similar
goods. Supplier will handle, pack, mark, and ship the
Product units in accordance with generally accepted
international standards for similar goods, and will use
packing and labeling specifications that Purchaser
reasonably requires. Supplier will mark the Product
units and packaging with the country of origin as
required by applicable Law, and provide a certificate of
origin and any other documents required for customs
clearance or tax purposes. The Delivery Date is a
material term of this Agreement, and time is of the
essence for all Product unit deliveries and performance
of Services. Supplier will not deliver Product units
before the Delivery Date without the applicable
Purchaser’s prior written consent. If Purchaser returns
any Product under this Agreement, they will be returned
[* * *] (Incoterms 2010), Purchaser’s place of business.
Supplier will be the exporter and importer of record for
ensuring that all returns comply with all export and
import regulations. Title and risk of loss or damage for
returned Products transfer to Supplier upon delivery to
Supplier’s designated carrier. Supplier agrees that any
3.1 Purchase Orders.
Purchasers may submit
Purchase Orders on paper, by fax or electronically.
Supplier will accept and fulfill any Purchase Order for
non-printer
Products
that
complies
with
this
Agreement’s terms (e.g., on price as set forth in the
pricing schedule). A Purchase Order, or executed Work
Order or addendum is Supplier’s only authorization to
ship Product to Purchaser or to perform Services.
Supplier will accept and fulfill any Purchase Order for
printer Products submitted by Purchaser that is
submitted at least [* * *] prior to the Delivery Date (for
shipment via sea freight) and is within the Quarterly
Forecast (as defined in Section 4.2). The foregoing
sentence shall not apply to orders of less than or equal
to [* * *] printer Products.
duties and taxes that may be recoverable by the Supplier
will not be charged or collected from Purchaser.
4.4
[* * *]
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4.5 Import/Export.
Supplier will be the
importer and exporter of record on all cross-border
transactions (including Product returns), will not list
Purchaser on any import, export, or other customs
documentation, and will be directly responsible
forensuring that those cross-border transactions comply
with all export and import regulations (including export
licensing, shippers export declaration, and export
invoice). Without limiting the foregoing, any export or
import document must, among other matters, separately
itemize and state the separate value for each item of
hardware, software, set-up, and any non-dutiable
service. Supplier will be responsible for all duties (in
North America, the US and Europe), export charges,
and any other amounts imposed by any governmental
agency related to all import and export of items under
this Agreement. Supplier will be solely liable for and
will defend, indemnify, and hold each Purchaser
harmless against any liability or damages arising out of
Supplier’s breach of this Section 4.5, including any
taxes, duties, interest, or penalties.
4.6 Title; Risk of Loss.
All rights, title,
interests, and all risks of loss and damage to any Product
will pass to the applicable Purchaser in accordance with
agreed upon Incoterms at the location of delivery
specified in the Purchase Order.
4.7 Installation & Acceptance.
Supplier will
install any Products for which Purchaser pays the
installation fee specified in Schedule 1 or for which
installation is covered by the Maintenance Services.
Amazon may inspect the Products prior to completion
of installation as set forth in Section 9.
4.8 Resources for Products.
Supplier will
assign at least one account management contact and a
backup contact to provide support to Amazon or
Amazon’s designee. Amazon will have the right to
approve each account management contact that
Supplier intends to appoint to perform under this
Section 4.8.
Prior
to
appointing
any
account
management contact, Supplier will identify the account
management contact to Amazon and provide Amazon
with reasonable information as to the qualifications of
the account management contact. Amazon will not
unreasonably object to the identity of an offered account
manager. To the extent Supplier engages any third party
to provide support to Amazon, Supplier will not
preclude, or attempt to preclude, contractually or
otherwise, that third party from contracting directly
with Amazon to provide support for the Products after
the Term or if Supplier no longer agrees to provide
support for the Products under the terms of this
Agreement.
5.2
Cancellation
for
Late
Delivery;
Epidemic Failure.
If delivery of any Product or Service
is delayed by more than [* * *] beyond the Delivery
Date, Purchaser may cancel the Purchase Order by
written notice to Supplier within [* * *] of the original
Delivery Date, without liability. If an Epidemic Failure
occurs, Purchaser may, within [* * *] of first learning
about such Epidemic Failure, cancel or reschedule any
Purchase Orders for any similar Product upon written
notice to Supplier, without liability.
6. Inspection; Reports.
6.1 Purchaser Inspection.
Purchaser may
inspect Product units at any Supplier facility (provided
however,
that
inspections
in
any
Supplier’s
subcontractors’ facilities shall be subject to reasonable
prior notice unless the nature of the inspection requires
an unannounced inspection) or any Purchaser facility to
see whether the Products comply with this Agreement.
If an Epidemic Failure occurs, Purchaser may require
Supplier to bear pre-approved expenses of these
inspections until the acceptable quality rate has been
regained and met for at least [* * *]. Inspections that are
done, or not done, will not affect any of Purchaser’s
rights under this Agreement.
7. Invoices and Payment.
7.1 Payment Terms.
Unless otherwise agreed
in a Work Order or addendum, (i) Products (other than
Consignment Parts) will be invoiced upon shipment to
Amazon, (ii) Warranty Period Extensions will be
invoiced upon the receipt of such Purchase Order, (iii)
Maintenance Services, if retained, will be invoiced on a
pro rata basis [* * *] and (iv) Consignment Parts used
[* * *] will be invoiced at the end of [* * *]. Each
invoice will be stated only in U.S. dollars or local
currency as referred to in the Purchase Order as
requested by Amazon, and will contain enough detail to
let Purchaser determine its accuracy. Subject to Section
9, Purchaser will pay a correct and undisputed invoice
for that Purchase Order (a) for all purchases other than
printer Products, net [* * *] after invoice (subject to
receipt of the applicable Products) and (b) for printer
Product, (I) net [* * *] after completion of Installation
of the Products, unless Purchaser informs Supplier of a
problem with the Product or (II) if Purchaser does not
allow Supplier to begin Installation within [* * *] after
delivery of printer Product to a Purchaser facility, then
net [* * *] after such delivery. If VAT, GST, or a similar
tax is chargeable under applicable Laws, Purchaser will
require a valid VAT, GST, or other invoice before
making payment and reserves the right to withhold
payment until a compliant invoice has been provided.
Payments may be made according to Purchaser’s then-
current payment policies, which may include electronic
4.9 Maintenance.
Upon receipt of a Purchase
Order for Maintenance Services, Supplier will provide
the Maintenance Services as described in Exhibit D in
consideration for the prices set forth therein.
5. Cancellation and Rescheduling.
5.1 Cancellation; Rescheduling.
Purchaser
may cancel or re-schedule all or any part of a Purchase
Order for any Product, without cancellation or other
charges, if it cancels such Purchase Orders within [* *
*] after Supplier’s acceptance of the Purchase Order or
reschedules such Purchase Order (i.e. one time delay of
shipment by no more than [* * *]) at least [* * *] prior
to the Supplier’s carrier’s receipt of the applicable
Products.
payment. Payment of an invoice without asserting a
dispute is not a waiver of any claim or right. [* * *].
7.2 Financing Products.
Amazon may direct
Supplier to send invoices for any Purchase Order issued
under this Agreement to a “bill to” Affiliate entity and
address that is different from the “ship to” entity and
address.
Those
directions
will
not
alter
the
responsibility of Purchaser to pay all properly payable
amounts on any invoice in accordance with the terms of
the Purchase Order and this Agreement if the “bill to”
entity does not pay those amounts as set forth in this
Agreement. Alternatively, Amazon may assign any
Purchase Order issued under this Agreement, including
title to the Products covered by that Purchase Order, to
an Affiliate by providing written notice to Supplier.
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8. Warranties and Compliance.
8.1 Upon Delivery.
Supplier warrants that, when
delivered: (a) all Product units will be new and unused; (b)
all Product will be provided with good and marketable title,
free and clear of any and all liens and other encumbrances;
(c) the Products and Services will not infringe,
misappropriate, or otherwise violate any third party
Proprietary Right; (d) the Product and Services will conform
to all the requirements of applicable Law, including all
applicable health, safety, and environmental regulations, of
the [* * *], and other jurisdictions agreed to by Supplier and
Purchaser; (e) no Product unit will contain any copy
protection, automatic shut-down, lockout, “time bomb”, or
similar mechanisms that could interfere with Amazon’s
rights under this Agreement or any viruses, “Trojan horses”,
or other harmful code; (f) all Product units will conform to
the Specifications; and (g) except as listed on Schedule 3, no
Product or Service will be subject to any license that requires
that Product, Service or any Software, such as Software used
with any Purchaser Device, be disclosed or distributed in
Source Code form, licensed for the making of derivative
works, or freely redistributable.
8.2 For Warranty Period.
Supplier warrants that
for [* * *] from the date of invoice (the “
Initial Warranty
Period
”) and during any Warranty Period Extensions that
all: (a) Products will be free from defects in design, material
and workmanship; (b) Products will conform to the
Specifications and; (c) Products will conform to Supplier
Documentation (to the extent that it does not conflict with
the Specifications). Amazon may at its sole option, at any
time, purchase a warranty program for additional [* * *]
periods (each a “
Warranty Period Extension
”; the Initial
Warranty Period and all Warranty Period Extensions are
collectively the “
Warranty Period
”) for any printer Product
unit for the warranty program price set forth in Schedule 1.
During the Warranty Period, the Supplier will provide the
Warranty Services listed in Exhibit D. During the Initial
Warranty Period, Warranty related Services will be
performed at no additional cost to Purchaser.
8.3 Compliance.
Supplier further warrants that it
will comply with the (i)
Code of Business Conduct and
Ethics
posted
at
http://phx.corporate-
ir.net/phoenix.zhtml?c=97664&p=irol-govConduct, and (ii)
Code of Standards and Responsibilities posted at
http://www.amazon.com/gp/help/customer/display.html?ie=
UTF8&nodeId=200885140, as either may be modified by
Amazon from time-to-time. Notwithstanding anything to the
contrary in this Agreement, Amazon may: (a) perform, or
have its designee perform, unannounced audits at any time
during the Term to validate whether Supplier is in
compliance with this Section 8.3 and, (b) without derogating
from its then outstanding liabilities to pay the Supplier for
Products and Services, immediately terminate or suspend
8.4
Product/Services
Compliance.
Without limiting Supplier’s other obligations under
this Agreement, Supplier will, at its cost and
expense, take whatever actions are required, and will
reasonably cooperate with Amazon, sufficient to
ensure that the Products and Services, as well as
their development, manufacture, supply, and use,
comply with all applicable Laws of the [* * *], and
other jurisdictions agreed to by Supplier and
Purchaser. Without limitation, Supplier will be
responsible for collecting, directly from each of its
suppliers and subcontractors, all test reports,
declarations, certifications, and other documentation
and materials necessary or useful to ensure
environmental
compliance
of
the
Product
(collectively, “
Environmental Documentation
”).
This will include collecting these items for ROHS
(EU or China), REACH, halogen free, California
Proposition 65, energy efficiency, battery recycling,
and all other applicable environmental Laws. Upon
Amazon’s
request,
Supplier
will
send
all
Environmental
Documentation
to
Amazon’s
Compliance Team. Supplier will gather any
additional information or documentation from
suppliers and subcontractors requested by Amazon
in connection with Amazon’s environmental or
other compliance efforts.
8.5 Returns; Customer Confidentiality.
Amazon and its Affiliates have no obligation to
return to Supplier any Product, or Product
component, which may contain any Amazon or
Amazon
Affiliate’s
customer
confidential
information, including hard disk drives, solid state
drives, and other memory devices, in order for
Supplier to perform its warranty or other obligations
under this Agreement. If a NC Product or NC
Product component cannot be returned for this
reason, Amazon will provide Supplier with a
periodic report detailing the NC Product or
components,
and
provided
that
the
non-
conformance occurred during the Warranty Period,
and that the Supplier was unable to guide Amazon
as to how to remove the confidential information,
Supplier will reimburse Amazon the Market Value
of such Products or components within 30 days after
receiving Amazon’s warranty failure report along
with the NC Product following deletion of
confidential information, or without the NC Product
if Amazon was unable to remove the confidential
information from such NC Product.
8.6 Necessary Rights Warrant.
Supplier
represents, warrants, and covenants that Supplier has
all rights necessary to sell the Products and perform
the Services and to allow Purchaser to directly and
indirectly use, import, distribute, lease, sell, offer for
performance under this Agreement if Supplier materially
breaches this Section 8.3.
sale, and otherwise dispose of the Product without
restriction or additional charge. Notwithstanding the
previous sentence, Purchaser may only sell Ink or
other consumable Products to Affiliates and [* * *].
[* * *].
8.7 Maintenance Services.
Supplier’s
obligations to provide the Maintenance Services
shall not apply to maintenance, repair or
replacement necessitated in whole or in part by: (i)
catastrophe, fault or gross negligence of the
Purchaser; (ii) improper or unauthorized use such as
without limitation, use of improper or non-
conforming thinner, solvents, inks or other
consumables, (iii) installation, modification or
repair other than by Supplier, its authorized
technical
representatives,
or
Supplier-trained
Purchaser personnel; or (iv) deviation from the
maintenance procedures in the express written
instructions and documentation provided by
Supplier, removal of the Products from the original
Site (unless the applicable Product was installed or
tested at new Site by Supplier or its authorized
technical representatives), power failure or failure to
maintain the expressly documented environmental
conditions at the installation site.
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8.8 Software.
Supplier represents, warrants,
and covenants that except as approved in writing in
Schedule 3 or in advance by Amazon prior to delivery
to Purchaser, the Products shall not contain (1) any
software, documentation or other items that are licensed
from or proprietary to any third party; or (2) any
software, documentation or other items that are subject
to any open source, public source or freeware terms,
including any GNU general public license, limited
GNU public license, BSD or similar terms requiring
disclosure or distribution of source code, licensing of
derivative works or any distribution without charge
(collectively, “
Open Source
”). Supplier shall provide
any approved Open Source in accordance with the
applicable Open Source terms and shall incorporate
such Open Source in a manner that does not subject any
Amazon rights or intellectual property to such Open
Source terms.
8.9 No Additional Warranty.
Except as set
forth in this Agreement, Supplier makes no other
warranties of any kind, express, implied statutory or
otherwise with respect to the Products, Software and/or
Services, and expressly disclaims any such warranties
including without limitation any express, statutory or
implied
warranties
of
merchantability,
non-
infringement, or fitness for a particular purpose.
9.
[* * *]
.
9.1
[* * *].
9.2
[* * *] .
9.3
[* * *].
9.4
[* * *].
9.5
[* * *].
10. Indemnification.
10.1 Indemnity.
Supplier will, at its sole
expense and at Amazon’s written request, defend, hold
harmless, and indemnify Purchasers and their
respective successors, assigns, directors, officers,
employees,
agents,
customers,
affiliates,
and
distributors (each, an “
Indemnified Party
” or
“
Indemnified Parties
”), from all third party claims,
demands, and legal proceedings, including all liabilities
costs, and expenses in connection with defending such
claims, demands and proceedings (including reasonable
attorneys’ fees incurred and those necessary to
successfully establish the right to indemnification) and
deriving from any judgment or settlement (“
Claims
”)
in proportion and to the extent based on a claim that, if
true, would establish: (a) Supplier’s negligence or
10.2 Process.
Amazon will give Supplier
reasonable notice of each Claim for which it wants
indemnity under Section 10.1. Purchaser will also give
Supplier its reasonable cooperation in the defense of
each Claim, at Supplier’s expense. Supplier will use
counsel reasonably satisfactory to Amazon to defend
each Claim. Each Indemnified Party may participate in
the defense at its own expense. If at any time Amazon
reasonably determines that any Claim might adversely
affect any Indemnified Party, then without limiting
Supplier’s indemnification obligations, Amazon may
take control of the defense of the Claim, and in such
event Amazon and its counsel will proceed diligently
and in good faith with that defense while cooperating
with Supplier in connection therewith. Supplier may
settle any Claim in its sole discretion if the settlement
requires only a payment that Supplier must and does
pay under this Section 10. Otherwise, Supplier will not
settle any Claim without the Indemnified Parties’ prior
written consent, which may not be unreasonably
withheld. Supplier will see that any settlement it makes
of any Claim is made confidential, except where
applicable Law does not permit that. Supplier’s duty to
defend is independent of its duty to indemnify.
10.3 Duty to Correct.
If an intellectual
property infringement Claim is made or Amazon
reasonably concludes that such intellectual property
infringement claim may be made and in each case,
Amazon reasonably believes that this may have a
material impact on its use of the Products or its rights
under this Agreement, and with respect to a potential
claim Amazon shall have requested Supplier to provide
its estimation as to the chances of such claim to be filed
and accepted, Supplier will also do one of the following,
at Supplier’s option and Supplier’s sole risk and
expense for each infringing or allegedly infringing
Product or Service: (a) procure Purchaser’s right to
continue directly and indirectly using, importing,
distributing, leasing, selling, offering for sale, and
otherwise disposing of it; (b) replace it with a non-
infringing version; or, (c) modify it so that it becomes
non-infringing. Any replacement or modification must
provide equivalent performance and meet Supplier’s
warranties under this Agreement. If Supplier cannot
accomplish (a), (b) or (c), [* * *] of the affected Product
and Amazon will return the affected Products to
Supplier at Supplier’s cost.
10.4 Return of Infringing Products.
In
addition to rights under Section 10.3, Purchaser may
return any Product units in its inventory that are subject
to any infringement Claim covered under Section 10.1,
at Supplier’s sole risk and expense at Purchaser’s
reasonable discretion. Supplier will refund the then [* *
*], and all associated shipping and insurance charges,
within 30 days after their return.
willful misconduct; (b) that Supplier or any Product or
Service infringes, misappropriates, or otherwise
violates any third party’s Proprietary Right; (c) that
Supplier has breached this Agreement; (d) that a
Product or Service has caused a Hazard; (e) Supplier
(including its suppliers and subcontractors) failed to
comply with applicable Law; (f) any Product’s failure
to comply with any applicable Law under Section 8.4;
or (g) a Claim that is brought by or for a Supplier
subcontractor, supplier, employee, or agent in
connection with this Agreement, in any event under (a)-
(g) to the extent that the underlying Claim is not based
on any modification to the Product by anyone other than
Supplier (or its subcontractors, suppliers, or agents),
any breach of this Agreement by Purchaser, or on the
use of the Product in violation of the express
instructions and documentation provided by Supplier.
Supplier waives any immunity, defense, or protection
under any workers' compensation, industrial insurance
or similar Laws in connection with any such Claim
(including the Washington Industrial Insurance Act,
Title 51 RCW). This Section 10.1 is not a waiver of
Supplier’s right to assert any immunity, defense, or
protection directly against any of its own employees or
their estates or representatives.
10.5 Adverse Claims Notice.
If the supply,
use, resale, distribution, or other disposition of any
Product under this Agreement is (or may reasonably be
expected to be) enjoined for any reason, Supplier will
give Amazon notice as far in advance as reasonably
possible.
11.
[* * *]
.
11.1
[* * *].
11.2
[* * *].
11.3
[* * *].
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11.4 Rights to Amazon.
(1)
Supplier grants a worldwide, fully-
paid, royalty-free, non-exclusive, irrevocable license to
(i) Amazon (which license Amazon covenants not to
exercise except [* * *], subject to subsection (2)) and
(ii) Supplier’s vendors and suppliers to Amazon [* * *]
upon [* * *] (which license such vendors and suppliers
to Amazon covenant not to exercise except on [* * *];
(A)
to make and have made, use, import,
demonstrate, publicly display, modify, and reproduce,
the Products, Supplier Technology, and related
copyright, patent, trade secret, mask work, and other
Proprietary Rights;
(B)
to grant sublicenses to third parties as
to any or all of the rights granted to Amazon under this
Section 11.4 for the sole purpose of manufacturing
Products for use by Purchasers; and
(C)
(solely with respect to sales and
distribution by Supplier’s vendors and suppliers and [*
* *] to Amazon and its Affiliates, agents, and
subcontractors after [* * *]) to distribute, offer to sell,
and sell the Products.
The rights granted in clause (A) above may only be used
to provide Products and Services to Amazon and other
Purchasers and their respective Affiliates, agents, and
subcontractors
and
to
support
the
operation,
maintenance, and use of the Products.
(2)
If, following [* * *], (a) Supplier
demonstrates to Amazon's reasonable satisfaction that
the circumstances giving rise to [* * *] have been cured
and that Supplier will fully perform under this
Agreement going forward and (b) Supplier reimburses
Amazon and Purchasers all of their costs associated
with or resulting from [* * *], including without
limitation costs (including capital costs, if applicable)
to manufacture or obtain alternate products or services
or otherwise utilize the Supplier Technology (and any
costs to switch back to obtaining Products and services
from Supplier), then Supplier may request, on [* * *],
that Amazon and its suppliers and vendors stop
exercising the license under this Section 11.4. For
clause (b) above, Supplier may purchase any capital
equipment purchased by Purchaser for the purpose of
utilizing the Supplier technology as part of Supplier’s
reimbursement obligation. Thereafter, Amazon and its
vendors and suppliers will covenant not to exercise the
license except on [* * *] (however, they may continue
to exercise the license as necessary to fulfill any product
orders then in process).
12.1 Feedback.
If Supplier or any of its
Affiliates give Amazon or its Affiliates any feedback,
suggestions, recommendations, or other input regarding
any
Amazon
product,
technology,
or
service
(“
Feedback
”), then Supplier, on behalf of itself and its
Affiliates, will and hereby does grant to Amazon and its
Affiliates, in the most extensive way possible under
applicable Laws, a worldwide, royalty-free, fully paid-
up, non-exclusive, irrevocable, license (with rights to
sublicense through multiple tiers of sublicensees) for
the entire duration of their protection (including any
extension and renewal) to: (a) to adapt, modify, and
create derivative works of the Feedback; and, (b) to
make, have made, use, copy, offer to sell, sell, perform,
display, distribute, import, and otherwise dispose of the
Feedback
(and
adaptations,
modifications,
and
derivative works of the Feedback) and any product,
technology, or service that incorporates, is combined or
used with, or marketed for use or combination with, any
Feedback.
13. Licenses.
13.1 Software License.
If Supplier provides
any Software to a Purchaser, including any Supplier
proprietary or third party software either incorporated
into a Product or provided in relation to a Product, then
Supplier hereby grants Amazon and its Affiliates: a
worldwide, non-exclusive, perpetual, irrevocable,
transferable, royalty-free, fully paid-up license to the
Proprietary Rights for the entire duration of their
protection (including any extension and renewal) in
connection with and in order to use the Products in
accordance with this Agreement: (a) to install, use,
operate, and copy the Software on any number of
networked or non-networked hardware at any facility or
location; (b) to use and copy any Software
documentation as necessary or desirable in connection
with the installation, use, and operation of the Software;
(c) under any current and future patents owned or
licensable by Supplier to the extent necessary: (i) to
exercise any license right granted in this Section 13; and
(ii) to combine the Software with any hardware and
software; and, (e) to sublicense to third parties the
foregoing rights, including the right to sublicense to
further third parties.
13.2 Acknowledgment.
For the purposes of
Section 365(n) of Title 11, United States Code, all rights
and licenses granted to Amazon under this Agreement
will be deemed to be licenses of rights to “intellectual
property” as defined under Section 101(56) of Title 11,
United States Code.
13.3 Product Software.
If Software is
delivered under this Agreement or otherwise in
connection with the Product or Services, the term
11.5 Modifications.
Supplier will be the
exclusive owner of any modifications or derivative
works created by or for Amazon under, or pursuant to
the rights granted under, this Section 11 and Supplier
grants Amazon and its Affiliates a non-exclusive,
worldwide, irrevocable, royalty-free, fully paid-up
license to such modifications and derivative works for
the entire duration of their protection including any
extension and renewal.
12. Work
Product.
[INTENTIONALLY
DELETED – TO BE INCLUDED IN ANY SERVICES
WORK ORDER].
“Product” or “Services”, as applicable, will be deemed
to include Software. Supplier agrees to correct any non-
compliance of the Software as soon as possible. For
clarity, “non-compliance” of Software means failure of
the Software to comply with Supplier’s warranties in
Section 8 of the Agreement (including by way of
example a failure to comply with the applicable portion
of the Specifications) or a defect in the Software that
causes the hardware portion of a Product become an NC
Product.
14. Disaster Recovery Plan and Insurance.
14.1 Disaster Recovery Plan.
Supplier will
within [* * *] of the date hereof have and follow a
written disaster recovery plan (the “
Disaster Recovery
Plan
”) to ensure the performance of Services and
supply of Products to Purchaser if a Force Majeure or
other similar disruption occurs. Supplier will submit a
proposed Disaster Recovery Plan to Purchaser for
review upon its written request.
14.2 Insurance.
During the Term and
regarding insurance that are “claimed made” for [* * *]
afterwards, Supplier will have insurance coverage as
described below. Supplier will be solely responsible for
all amounts that must be paid or retained for that
insurance. Supplier’s insurance will include the
following coverage:
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Coverage Type
Minimum
Coverage
Limits
PUBLIC (THIRD
PARTY) LIABILITY
INSURANCE POLICY
$[* * *] per occurrence
and general aggregate
Employers' Liability
Insurance Policy
$[* * *] per occurrence
and general aggregate
Fidelity Bond (or similar
policy covering employee
dishonesty)
$[* * *] per loss
Electronic Products and
Services Errors or
Omissions, and Product
Liability Insurance
$[* * *] per occurrence
and general aggregate
Supplier will purchase the insurance required above
from an insurance company that has an excellent ability
to meet its ongoing obligations to policyholders, and is
not under regulatory supervision or under an order of
liquidation by a court of law. The insurance company
shall also have a financial size (based on their capital,
surplus and conditional reserve funds) of at least $[* *
*]. The insurance policies listed above must: (a) not be
able to be cancelled or have coverage reduced without
[* * *] notice from the Supplier to Amazon; (b) except
for Fidelity Bond (or similar policy covering employee
dishonesty) and Electronic Products and Services
Errors or Omissions, and Product Liability Insurance,
provide coverage on an occurrence basis; (c) waive any
insurer right of subrogation against Amazon, its
Affiliates, and their respective officers, directors, and
employees except for malicious damage; (d) except for
Fidelity Bond (or similar policy covering employee
dishonesty) and Electronic Products and Services
Errors or Omissions, and Product Liability Insurance,
provide primary coverage, without any right of
contribution from any other insurance that Purchasers
may have; and (e) the Third Party Liability insurance
shall be extended to indemnify Amazon and its
Affiliates, and their respective officers, directors and
employees for liability imposed on it as a result of acts
and/or omissions of Supplier and liability as provided
for in this Agreement, subject to a cross-liability clause
according to which the insurance is deemed to have
been issued separately for each of the individuals of the
insured. The Third Party Liability insurance shall be
extended to indemnify Amazon and its Affiliates, and
their respective officers, directors and employees for
liability imposed on it as a result of acts and/or
omissions of Supplier and liability as provided for in
this Agreement. Supplier will send Amazon certificates
of insurance for the above by the Effective Date and at
each later policy renewal, via email to: Amazon Risk
Management at [* * *]. Nothing in this Section 14.2 or
Purchaser’s actions under it modifies any of Supplier’s
obligations under this Agreement.
subject to information (including a copy of this
Agreement) that the Supplier may be required, in the
context of a registration statement or periodic report, to
file with the Securities and Exchange Commission (the
“
SEC
”) or otherwise under the US Securities Act of
1933, as amended, and the US Securities Exchange Act
of 1934, as amended. Subject to above exclusion,
provided however that Supplier shall notify Purchaser
in writing of any such filing requirement and shall allow
Purchaser a reasonable opportunity (but no more than 5
business days) to review and redact any document that
is about to be filed if such document reveals
Confidential Information included in this Agreement
and provided further that upon Purchaser’s request,
Supplier shall take reasonable commercial efforts as
shall be advised by Suppliers’ legal advisors, to request
confidential treatment from the SEC in connection with
this Agreement, however should such request be
rejected by the SEC, the Supplier shall act as shall be
further required according to its legal Counsel advice in
connection with such disclosure. Supplier will not use
Amazon’s name or marks, any Amazon Affiliate’s
names or marks, issue any press release or make any
public statement regarding or mentioning, or otherwise
disclose,
this
Agreement,
Supplier’s
business
relationship with Amazon or its Affiliates, any
Purchaser Device, or Amazon’s or any of its Affiliate’s
product or service roadmaps (or any information on
features, functionality, or capability of any Purchaser
roadmap), unless Amazon first gives its written
approval.
Supplier
will
enforce
equivalent
confidentiality requirements on all of its suppliers,
business partners, and subcontractors that it works with
and that accordingly may have knowledge of or access
to any Confidential Information.
17. Term and Termination.
17.1 Term.
This Agreement will be effective
during the “
Term
,” which means the 5-year period
starting on the Effective Date (the “
Initial Term
”) and
all Renewal Terms, if any. Following the expiration of
15. Quality Improvement.
Supplier will work with
Amazon to continually improve Product quality and
reliability based on agreed targets and corrective actions
that are designated from time-to-time. If Supplier
becomes aware of the reasonable likelihood of a decline
in Product quality or reliability, Supplier will
immediately notify Amazon of the potential decline and
use its best efforts to prevent it.
16. Confidentiality and Public Statements.
The
parties’ disclosures and activities in connection with
this Agreement are subject to the NDA. But
notwithstanding the NDA, Purchaser may continue to
retain and use Confidential Information after the
termination of this Agreement or the NDA to the extent
necessary
to
service,
support,
maintain,
and
troubleshoot the Product. This Agreement’s specific
terms are Confidential Information. All
the Initial Term, this Agreement will automatically
renew for additional [* * *] (each, a “
Renewal Term
”)
unless Amazon provides notice of termination at [* * *]
before the expiration of the Initial Term or then current
Renewal Term.
17.2 Termination by Amazon.
Amazon may
terminate this Agreement for cause by giving written
notice to Supplier if Supplier: (a) breaches Section 16;
(b) materially breaches any of this Agreement’s other
provisions, and does not cure that breach within [* * *]
of notice from Amazon; (c) becomes insolvent or
becomes the subject of any proceeding under any
bankruptcy, insolvency, or liquidation Law, which is
not resolved favorably to Supplier within [* * *]; (d)
becomes subject to property attachment, court
injunction or court order which has a material adverse
effect on its operations; or (e) undergoes a Change of
Control to a direct competitor of Amazon. Amazon also
may terminate this Agreement without cause by giving
at least [* * *] written notice to Supplier, and as stated
in other parts of this Agreement.
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17.3 Termination by Supplier.
Supplier may
terminate this Agreement by giving at least [* * *]
written notice if (a) Amazon materially breaches any of
this Agreement’s provisions and does not cure that
breach within [* * *] of notice from Supplier and such
breach is of such a nature that Supplier cannot
reasonably be made whole through an award of
monetary damages; (b) Amazon materially breaches
any of this Agreement’s provisions and such breach is
of such a nature that Supplier can reasonably be made
whole through monetary damages and Amazon fails to
pay any undisputed amount owed to Supplier in
connection with such breach within [* * *] notice from
Supplier, (c) Amazon becomes the subject of any
proceeding under any bankruptcy, insolvency, or
liquidation Law that is not resolved favorably to
Amazon within [* * *], (d) if [* * *].
17.4 Effect of Termination.
Upon expiration
or any termination of this Agreement, Supplier will
deliver to Amazon any Amazon Data in Supplier’s
possession or control in a format and media reasonably
acceptable to Amazon and will destroy all Amazon Data
in compliance with Exhibit C. If Amazon terminates
this Agreement for cause, Purchaser(s) will have no
obligation to Supplier other than payment of any
balance due for Product units it ordered and that were
shipped to Purchaser(s) before termination and
accepted. If this Agreement is terminated other than by
Amazon for cause, Purchaser(s)’ sole liability and
Supplier's exclusive remedy is payment for Product
units that Purchasers accept under Purchase Orders that
are outstanding as of the termination date and are not
cancelled in accordance with this Agreement due to that
termination. Purchaser will have no obligation to pay
Supplier for any raw materials, parts, components, or
work-in-process. Supplier will deliver to Purchaser all
Product units that Purchaser has paid for. Also, upon
termination Purchaser may place a final Purchase
Order. For clarity, [* * *]. Notwithstanding anything to
the contrary in this Section 17.4, Purchaser will be
required to pay for fulfilled and accepted Purchase
Orders and Wind Down Period Purchase Orders in
accordance with the process in Section 7.1.
17.5 Survival.
Sections 1.3 (with the
exception of the last sentence of such section), 8, 10, 11
([* * *]), 12, 13.1, 13.2, 14.2, 16, 17.4, 17.5, and 18
through 20 and the related Schedules and Exhibits will
survive the expiration or termination (for any reason) of
this Agreement. In addition, (a) Sections 1 through 7 ,
and 11, will survive for the duration of the Wind Down
Period with respect to the purchase of all Products other
than printer Products, (b) the terms of this Agreement
will survive and apply to any Work Orders or addendum
outstanding as of the effective date of termination or
IN
ADDITION,
EXCEPT
FOR
EXCLUDED
LIABILITIES, NEITHER PARTY’S AGGREGATE
LIABILITY TO THE OTHER (AND THEIR
RESPECTIVE AFFILIATES) RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT SHALL
EXCEED [* * *].
19. Miscellaneous.
19.1 Communications.
Supplier will use
communication systems that Amazon reasonably
requires to implement this Agreement (e.g., to receive
and communicate about Forecasts and Purchase Orders,
shipments, deliveries, returns, etc.). For the purposes of
the Electronic Commerce Act 2000, the parties consent
to the use of electronic communications and electronic
signatures, for all purposes under this Agreement,
subject to the notice requirements in this Agreement.
19.2 Language; Interpretation; Currency.
This Agreement is executed in English only. Any
translation of this Agreement into another language will
be for reference only and without legal effect. The
parties have fully negotiated this Agreement, and it will
be interpreted according to the plain meaning of its
terms without any presumption that it should be
construed either for or against either party. Unless
otherwise expressly stated, when used in this
Agreement “include,” “includes,” and “including” are
not exclusive or limiting; “Section” refers to this
Agreement’s provisions; each “and” or “or” means
“and” and “or”; “days” refers to consecutive calendar
days including Saturdays, Sundays and holidays;
“dollars” and the symbol “$” refer to United States
dollars and the symbol “€” refer to Euros; and “Exhibit”
refers to the Exhibits attached to this Agreement.
Section headings in this Agreement are for ease of
reference only.
19.3 Severability.
If any court of competent
jurisdiction finds any part of this Agreement to be
invalid or unenforceable, then that part will be deemed
modified to the extent necessary in order to render it
valid and enforceable. If it cannot be so saved, it will be
severed, and the remaining parts will remain in full
force and effect.
19.4
Governing
Law;
Venue.
This
Agreement is governed by the substantive laws of the
State of Washington, excluding its conflicts of law
provisions. The United Nations Convention on
Contracts for the International Sale of Goods will not
apply to this Agreement. Any dispute arising under, in
connection with, or incident to this Agreement or about
its interpretation will be resolved exclusively in the state
or federal courts located in King County, Washington.
Supplier irrevocably submits to those courts’ venue and
expiration, and (c) Section 9 will survive for the
applicable Warranty Period for any Product.
18. Exclusion of Certain Damages.
EXCEPT FOR LOSSES, DAMAGES OR
LIABILITIES (i) ARISING UNDER SUPPLIER’S
INDEMNIFICATION OBLIGATIONS PURSUANT
TO THIS AGREEMENT, (ii) TO THE EXTENT
ARISING OUT OF ANY BREACH OF THE NDA OR
THE CONFIDENTIALITY OBLIGATIONS UNDER
THIS AGREEMENT BY SUPPLIER OR ITS
PERSONNEL, OR (iii) DUE TO A PARTY’S GROSS
NEGLIGENCE OR WILLFUL, FRAUDULENT OR
CRIMINAL
MISCONDUCT
(COLLECTIVELY,
“
EXCLUDED LIABILITIES
”), NEITHER PARTY
WILL
BE
LIABLE
UNDER
ANY
CIRCUMSTANCES FOR ANY LOST PROFITS OR
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
SPECIAL DAMAGES, EVEN IF IT HAS NOTICE OF
THAT THOSE KINDS OF DAMAGES MAY
OCCUR.
jurisdiction. Supplier waives all defenses of lack of
personal jurisdiction and forum non-conveniens.
19.5 Continuing to Perform.
During a
dispute or notice or cure period in connection with this
Agreement: (a) Supplier will continue to fulfill all its
obligations under this Agreement, including all Product
and Service delivery obligations, unless directed
otherwise by Amazon in writing; and, (b) Purchaser will
continue to pay correct and undisputed invoices for
amounts payable by it under this Agreement. Supplier’s
breach of this Section 19.5 will be an incurable, material
breach of this Agreement.
19.6 Rights and Remedies Not Exclusive.
All
rights and remedies under this Agreement are not
exclusive. The exercise of a right or remedy will not
exclude or waive other rights or remedies under this
Agreement, at law, or in equity.
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19.7 Injunctive Relief.
Parties acknowledge
that any material breach of Section 16 would cause
irreparable harm for which the non-breaching party has
no adequate remedies at law. Accordingly, each party is
entitled to specific performance or injunctive relief for
any such breach without any requirement for posting
any bond or undertaking in connection therewith. In
addition, Supplier further acknowledges that any
material breach of Section 10, 11, 19.15, or 19.16 by
Supplier would cause Purchaser irreparable harm for
which Purchaser has no adequate remedies at law.
Accordingly,
Purchaser
is
entitled
to
specific
performance or injunctive relief for any such breach
without any requirement for posting any bond or
undertaking in connection therewith.
19.8 Assignment.
Supplier may not assign this
Agreement, by contract or operation of law, including
by way of a Change of Control transaction, without
Amazon’s prior written consent. If Amazon does not
consent to an Assignment of this Agreement pursuant
to a Change of Control transaction, Supplier may
terminate the Agreement with [* * *] prior notice.
19.9 Modification; Waiver.
This Agreement
may not be modified except by a written agreement
dated after the Effective Date and signed in a non-
electronic form by the party against which it is to be
enforced. A waiver of one breach under this Agreement
is not a waiver of any other breach. No waiver will be
effective unless signed in a non-electronic form by the
waiving party.
19.10 Independent Contractors.
The parties
are independent contractors, and nothing in this
Agreement creates an employer-employee relationship,
a partnership, joint venture, or other relationship
between the parties. Neither party has authority to
assume or create obligations of any kind on the other’s
behalf. Supplier has exclusive control over its personnel
and over its labor and employee relations and its
policies relating to wages, hours, working conditions
and other employment conditions. Supplier has the
exclusive right to hire, transfer, suspend, lay-off, recall,
promote, discipline, discharge, and adjust grievances
with its personnel. Supplier is solely responsible for all
salaries and other compensation of its personnel who
provide Services and for making all deductions and
withholdings from its employees’ salaries and other
compensation and paying all contributions, taxes, and
assessments. Supplier’s personnel are not eligible to
participate in any employment benefit plans or other
benefits available to Amazon employees. Supplier has
no authority to bind Amazon to any agreement or
obligation. Supplier will be solely responsible for all
theft, damage, and misconduct related to its personnel.
will keep proper wage books and time sheets as required
under Employment Law showing the wages paid and
the time worked by its personnel in and about the
performance of this Agreement. In addition, Supplier
will retain copies of all wages slips or other statements
of wages paid issued to any employees, and all wages
books, time sheets, wage slips, statements of wages, and
other Employment Documentation (if any) in relation to
Supplier’s compliance with Employment Law for at
least three years after the Term, unless required to retain
for a longer period under Employment Law. Supplier
will produce these documents on demand for inspection
and copying by Amazon or any person authorized by
Amazon.
19.12 Transfer Regulations.
The parties
believe that the European Communities transfer of
undertaking rules (in particular Council Directive
2001/13/EC on the approximation of the Laws of the
Member States relating to the safeguarding of
employees' rights in the event of transfers of
undertakings, businesses, or parts of undertakings or
businesses) or the transfer of undertakings provisions of
any
applicable
employment
Laws
(“
Transfer
Regulations
”) will not apply to this Agreement either
at its commencement, assignment, termination, or
expiry. However, in the event that the Transfer
Regulations are held to apply to this Agreement, either
at its commencement, assignment termination, or
expiry, the Supplier will comply in full with its
obligations under the Transfer Regulations. The
Supplier agrees to indemnify Amazon on demand
against all proceedings, actions, costs (including legal
costs), charges, claims, expenses, damages, liabilities,
losses, and demands incurred by Amazon: (i) in relation
to any failure of the Supplier to comply with its
obligations under the Transfer Regulations; (ii) in
relation to any failure of the Supplier to comply with its
obligations under this Section 19.12; and, (iii) in
relation to a claim made by persons who are (or are
deemed to be) employees of the Supplier at the time of
commencement, assignment, termination, or expiry
(howsoever arising) of this Agreement (in whole or in
part), claim or are held to be employees of Amazon or
any other person to whom Amazon may, following the
assignment, termination, or expiry of this Agreement,
grant a similar contract, where the claim arises by
reason of the application of the Transfer Regulations or
alleged application of the Transfer Regulations. The
Supplier acknowledges that Amazon has relied on the
obligations assumed by the Supplier in this Section
19.12 in deciding to enter into this Agreement. Any
reference in this Section 19.12 to this Agreement will,
where the context permits, include reference to any
Work Order.
19.11 Employment Law.
Supplier will fully
observe and comply with the provisions of all
applicable employment legislation and regulations
applicable to its performance under this Agreement,
including the possible mandatory minimum wage
requirements under applicable employment Laws, any
mandatory collective labor law requirements of
applicable employment Laws, and any other mandatory
provisions of applicable employment Laws (e.g.
maximum working time requirements, minimum paid
holiday requirements, etc.) or any applicable code of
practice (collectively “
Employment Law
”). Supplier
will obtain all consents and keep all records which the
Supplier is required to obtain and keep in respect of its
personnel under Employment Law (“
Employment
Documentation
”). Supplier
19.13 Records, Audits, Inspections.
Supplier
will maintain accurate and up-to-date written records in
the normal course of its business, including records
about Supplier’s performance under this Agreement
(including quality programs and test documentation).
Supplier will keep those records for at least 5 years from
the date of the events being documented. Amazon or its
agents (including without limitation, accountants,
lawyers, or other specialists) may inspect Supplier’s
manufacturing facilities and processes for the Products,
and access and copy Supplier’s records in order to audit
and verify Supplier’s compliance with this Agreement.
The audit will be conducted on prior written notice at
the expense of Amazon and will be performed during
Supplier’s normal business hours. If the audit reveals a
breach of this Agreement, then, without limiting
Amazon’s other rights and remedies, Supplier will
promptly reimburse Amazon for the costs associated
with the audit. In addition, at Amazon’s request,
Supplier will certify in writing to Amazon that it is in
compliance with this Agreement.
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19.14 Taxes.
Each party will be responsible,
as required under applicable Law, for identifying and
paying all taxes and other governmental fees and
charges (and any penalties, interest, and other additions
thereto) that are imposed on that party upon or with
respect to the transactions and payments under this
Agreement. Supplier may charge and Amazon will pay
applicable federal, national, state, or local sales or use
taxes or value added taxes that Supplier is legally
obligated to charge (“
Taxes
”), as long as the Taxes are
stated on the original invoice that Supplier provides to
Amazon and Supplier’s invoices state the Taxes
separately and meet the appropriate tax requirements of
applicable Laws for a valid tax invoice. Amazon may
provide Supplier with an exemption certificate
acceptable to the relevant taxing authority, in which
case, Supplier will not collect the Taxes covered by that
certificate. Amazon may deduct or withhold any taxes
that Amazon may be legally obligated to withhold from
any amounts payable to Supplier under this Agreement,
and payment to Supplier as reduced by these deductions
or withholdings will constitute full payment and
settlement to Supplier of amounts payable under this
Agreement. Supplier may provide Amazon with an
exemption certificate acceptable to the relevant taxing
authority, in which case Amazon will not collect the
Taxes covered by that certificate. Throughout the Term,
Supplier will provide Amazon with any forms,
documents, or certifications as may be required for
Amazon to satisfy any information reporting or
withholding tax obligations with respect to any
payments under this Agreement.
19.15 Amazon Data.
Amazon Data is
Amazon’s Confidential Information. Amazon owns and
reserves all right, title, and interested in and to the
Amazon Data, including any Intellectual Property
Rights in the Amazon Data. Except as expressly set
forth in the Agreement, Supplier has no right to use or
disclose any Amazon Data, and no right, title, or interest
in the Amazon Data is transferred to Supplier. Supplier
may collect, use, store and retain only the Amazon Data
that is expressly authorized under the applicable
Purchase Order, and then may only collect, use, store
and retain that Amazon Data solely as necessary for
Supplier to provide the Products or perform the Services
in accordance with this Agreement and that Purchase
Order. Supplier (including its Affiliates and their
Personnel) will not otherwise collect, monitor, use or
retain any Data related to Amazon or its Affiliates.
Supplier will not collect Amazon Data by means other
than those authorized in this Agreement and the
applicable Purchase Order, or as otherwise agreed in
writing through an amendment to this Agreement or the
applicable Purchase Order. Supplier will at no time
monitor, collect, use or store any personally identifiable
information other than on behalf of, and as directed by,
19.16 Information Security.
Supplier will
comply in all respects with the Information Security
Requirements, as updated from time to time (“
InfoSec
Policy
”), the current version of which is attached to this
Agreement as Exhibit C. In addition, Supplier will
implement and maintain appropriate security measures
in order to restrict access to Amazon Data to solely
Supplier personnel that are performing Services for
Amazon under the applicable Purchase Order. Supplier
will immediately notify Amazon of any security breach
relating to the Products or Services that may involve
Amazon Data or any other Amazon Confidential
Information.
19.17 No Obligation.
Purchaser has no
obligation to purchase any Product or Services. Nothing
in this Agreement restricts Amazon’s and its Affiliates’
ability to directly and indirectly acquire, license,
develop, manufacture, or distribute similar products
with the same or similar functions as the Product or to
perform services similar to the Services. Without
limiting the foregoing, nothing in this Agreement will
be construed as creating a requirements contract.
19.18 OFCCP Flow Down.
To the extent
applicable to Supplier for sales under this Agreement to
Amazon or Amazon Affiliates in the U.S.:
As applicable, this contractor and
subcontractor
will
abide
by
the
requirements of 41 CFR §§ 60-1.4(a), 60-
300.5(a)
and
60-741.5(a).
These
regulations
prohibit
discrimination
against qualified individuals based on
their status as protected veterans or
individuals
with
disabilities,
and
prohibit
discrimination
against
all
individuals based on their race, color,
religion,
sex,
or
national
origin.
Moreover, these regulations require that
covered
prime
contractors
and
subcontractors take affirmative action
to employ and advance in employment
individuals without regard to race,
color, religion, sex, national origin,
protected veteran status, or disability.
19.19 Entire Agreement.
This Agreement,
the Purchase Orders and Work Orders, together with all
associated addendum, exhibits, and schedules, which
are incorporated by this reference, and NDA, constitute
the complete and final agreement of the parties
pertaining to the Products and Services and supersede
the parties’ related prior agreements, understandings,
and discussions. To the extent that there is any conflict
between the Standard Terms and an Addendum or other
Exhibit, the Addendum or other Exhibit will control (in
Amazon. Without limiting any other rights or remedies
that may be available to Amazon, Amazon may
terminate this Agreement and any Purchase Orders
immediately upon written notice to Supplier if Supplier
breaches any of the provisions set forth in this
Section 19.15. Within 30 days of Amazon’s request,
Supplier will deliver to Amazon any Amazon Data in
Supplier’s possession or control in a format and media
reasonably acceptable to Amazon and (if requested by
Amazon) will destroy all Amazon Data in compliance
with Exhibit C.
each case with the understanding that silence as to any
given topic in any document does not create a conflict
with terms expressly addressing that topic in another
document). This Agreement and any Work Orders and
addenda to this Agreement may be executed by
facsimile and in counterparts, each of which (including
signature pages) will be deemed an original, but all of
which together will constitute one and the same
instrument. The parties may use standard business
forms or other communications, but use of these forms
is for convenience only and does not alter the provisions
of this Agreement.
NEITHER PARTY WILL BE
BOUND BY, AND EACH SPECIFICALLY OBJECTS
TO, ANY PROVISION THAT IS DIFFERENT FROM
OR
IN
ADDITION
TO
THIS
AGREEMENT
(WHETHER PROFFERED VERBALLY OR IN ANY
QUOTATION, INVOICE, SHIPPING DOCUMENT,
ACCEPTANCE,
CONFIRMATION,
CORRESPONDENCE,
PROPOSAL,
OR
OTHERWISE), UNLESS THAT PROVISION IS
SPECIFICALLY AGREED TO IN A WRITING
SIGNED BY BOTH PARTIES.
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20. Definitions.
For this Agreement, the following
capitalized terms have the meanings listed here:
20.1
“
Affiliate
” means an entity that a party
directly or indirectly controls, is controlled by, or is
under common control with. As used in this definition,
“control” means the possession, directly or indirectly,
of the power to direct, the management or policies of a
corporation, firm, business trust, joint venture,
association, organization, company, partnership, or
other business entity, whether through the ownership of
voting securities, by contract, or otherwise.
20.2
“
Amazon Data
” means all Data (a)
collected, received, stored or maintained by the
Supplier in connection with all Purchaser use of the
Products or Supplier’s performance of its obligations
under this Agreement (including Data collected by or
associated with any cookies), (b) provided by Amazon
to Supplier, or (c) derived from (a) or (b).
20.3
[* * *].
20.4
“
Change of Control
” means: (a) Control
of a party is acquired by a single transaction or a series
of related transactions by an entity which is not an
Affiliate of that party (a “
Non-Affiliated Entity
”); or
(b) all or a substantial part of the business or assets of a
party are sold or transferred to any Non-Affiliated
Entity by way of a single transaction or series of related
transactions.
20.5
“
Confidential Information
” has the
meaning given it in the NDA.
20.6
“
Control
” means the possession, directly
or indirectly, of the power to direct, or cause the
direction of, the management or policies of a
corporation, firm, business trust, joint venture,
association, organization, company, partnership or
other business entity, whether through the ownership of
voting securities (or other ownership interest), by
contract or otherwise.
20.7
“
Data
” means any data, records, files,
content or information, in any form or format, including
interim,
processed,
compiled,
summarized,
or
derivative versions of this data, content or information.
20.8
“
Delivery Date
” means the delivery date
according to agreed upon Incoterms, for Product or start
date for Services stated in a Purchase Order, Work
Order or addendum, if the Delivery Date is rescheduled
as permitted under Section 5.1 or by other written
agreement of the parties, then it means the rescheduled
Delivery Date.
20.14
“
Forecast
” means each Purchaser
forecast, if any, of estimated Product quantities and
delivery dates.
20.15
“
Hazard
” means any danger of bodily
injury or property damage.
20.16
“
Ink
” means ink that conforms to the
Specifications and properly functions in the printer
Products purchased by Purchaser without modification
of the printer Products or any degradation in their
performance.
20.17
[* * *]
20.18
“
Law
” or “
Laws
” means all laws,
ordinances, regulations, rules, orders, and other
requirements (including requirements for licenses,
permits, certifications and approvals) of governmental
authorities having jurisdiction.
20.19
“
Maintenance Services
” means those
services described in Exhibit D.
20.20
“
Market Value
” means (a) for a printer
Product, the applicable purchase price paid by
Purchaser [* * *] and (b) for any other Product, the
applicable purchase price paid by Purchaser.
20.21
“
NDA
”
means
the
Mutual
Nondisclosure
Agreement
between
the
parties
identified on the signature pages above.
20.22
“
Non-Conforming Product
” or “
NC
Product
” means a Product unit that: (a) does not
conform to the Specifications; or, (b) does not comply
with all of Supplier’s warranties in this Agreement as
set forth in Section 8.
20.23
“
Pre-Existing Work
” means inventions
or developments made by Supplier prior to or separate
of an Amazon Owned Work Product that are used in or
included in the Amazon Owned Work Product.
20.24
“
Product
” means (i) each product listed
on Schedule 1, (ii) any other Supplier product
purchased by Purchaser under this Agreement, or
printer Products purchased by Amazon or its affiliates
prior to the Effective Date, and (iii) parts and
consumables for the products in clause (i) and (ii)
above, in each case, including any Software, whether
imbedded in the Product or provided separately.
20.25
“
Proprietary Rights
” means any and
all existing or future trademarks, trade secrets,
copyrights, patents, mask works rights, neighboring
20.9
“Documentation”
means
all
documentation relating to the Products, including all
user manuals, operating manuals and other instructions,
specifications, documents and materials, in any form or
media,
that
describe
any
component,
feature,
requirement or other aspect of the Products, including
their functionality, testing, operation or use.
20.10
[* * *].
20.11
[* * *].
20.12
[* * *].
20.13
“
Force Majeure
” means an act of God,
war, civil insurrection, material damage to, or
destruction of Supplier’s facility, the effects of which
could not been avoided by Supplier’s commercially
reasonable efforts and could not have been avoided or
corrected through the exercise of reasonable diligence.
rights, and any other intellectual property or proprietary
rights whether registered or unregistered.
20.26
“
Purchase Order
” means each written
order for the Product that Purchaser submits under this
Agreement.
20.27
“
Purchaser
” means Amazon, an
Amazon Affiliate, or any [* * *] (including its
Affiliates) that purchases under this Agreement.
20.28
“
Purchaser
Device
”
means
any
Amazon device or equipment or component of the
device or equipment.
20.29
“
Rules
” means all Amazon rules,
regulations, policies, procedures, and guidelines,
including
background
checks,
safety,
health,
environmental, and hazardous material management
rules, rules prohibiting misconduct, use of physical
aggression against persons or property, harassment, or
theft that are applicable to third parties accessing an
Amazon site.
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20.30
“
Software
” means any software and
firmware contained within or supplied with or for use
with the Product (examples of the latter include drivers)
or Services, and all future versions and generations of
that software and firmware.
20.31
“
Source Code
” means the human-
readable language form of the software code that
comprises (in object code form) the Software, as the
software code was prepared and written by the software
engineer(s) who developed the applicable Software,
together with any build tools (e.g., compilers, linkers
and other related tools), compile/link scripts, logic
diagrams, program comments, installation scripts and
other documentation and tools necessary for an
ordinarily skilled software engineer to understand and
be able to address errors in or create ports, updates, or
other modifications to the software code, or to
recompile the same into fully functioning object code of
the applicable Software.
20.32
“
Specifications
” means any Supplier
specifications attached as Schedule 2 or Documentation
and any other materials agreed by the parties.
20.33
“
Supplier
” means the Supplier and each
of its Affiliates that (i) Supplier utilizes to provide
Products or Services under this Agreement, or (ii)
accept Purchase Orders or Work Orders from a
Purchaser for Amazon.
20.34
“
Supplier Intellectual Property
” is
defined in Section 1.3.
20.35
“
Supplier Technology
” means all
information, including fabrication drawings for all
proprietary mechanical parts, formulas, manufacturing
processes, bills of material, inventions, works of
authorship, Source Code, object code, mask works, test
procedures, test specifications, design specifications,
schematics, assembly drawings, artwork, and any other
information that would be useful to Amazon to modify,
manufacture, develop, distribute, support, or maintain
the Products, or any of them, which information is now
in Supplier’s
possession or which during the Term comes into
Supplier’s possession. Without limiting the foregoing,
Supplier Technology includes, for all Products to the
extent essential for Amazon to modify (for the purpose
of ensuring that the Products function correctly),
manufacture, develop (for the purpose of ensuring that
the Products function correctly), distribute, produce,
support or maintain the Products: (a) all tooling details
and procedures; (b) names, contact information, and
reasonable detail regarding what each vendor does, for
all vendors providing parts or services related to the
manufacture, assembly, distribution, maintenance, and
support of the Products; (c) all CAD and other
electronic files related to production of the Products;
(d) floor planning, layout, pad design, stack-up, and all
relevant process information to manufacture and
assemble the Products; (e) mask design files, design
specifications
to
wafer
vendor,
packaging
specifications, and other accompanying data for any
proprietary
chip
production,
dicing,
testing,
encapsulation,
and bring-up;
(f) all
engineering
specifications and detail, including all electronic files
and formulas, necessary to manufacture all varieties of
Ink (including without limitation, all Ink Technology)
and all other consumables that Supplier makes available
for the Products; and (g) all manuals, processes, and
other
information
(including
knowledge
bases)
necessary to provide support and maintenance for the
Products.
20.36
“
Term
” is defined in Section 17.1.
20.37
“
Work Order
” means a written
document signed by Supplier and Amazon or an
Amazon Affiliate describing the terms and conditions
for the performance of the covered Services.
20.38
“
Work Product
” means anything that
Supplier is required to deliver to Amazon or an Amazon
Affiliate (or to an [* * *] on behalf of Amazon) in
connection with the Services or Products provided
under this Agreement, including concepts, prototypes,
works, inventions, information, drawings, designs,
programs, or software (whether developed by Supplier,
Supplier Affiliates or Supplier´s subcontractors or any
of their personnel, either alone or with others, and
whether completed or in-progress).
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EXHIBIT B
[* * *]
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EXHIBIT C
INFORMATION SECURITY REQUIREMENTS
1.
SCOPE; DEFINITIONS
1.1.
Security Policy. Supplier will comply in all respects with Amazon’s information security
requirements set forth in this Exhibit C (the “
Security Policy
”). The Security Policy applies to
Supplier’s performance under the Agreement and all access, collection, use, storage,
transmission, disclosure, destruction or deletion of, and security incidents regarding, Amazon
Information. This Security Policy does not limit other obligations of Supplier, including under
the Agreement or Laws that apply to Supplier, Supplier’s performance under the Agreement,
the Amazon Information or the Permitted Purpose. To the extent this Security Policy directly
conflicts with the Agreement, Supplier will promptly notify Amazon of the conflict and will
comply with the requirement that is more restrictive and more protective of Amazon
Information (which may be designated by Amazon). Amazon may change this Security Policy
from time to time at its sole discretion upon providing written notice to Supplier.
1.2.
Permitted Purpose. Supplier may access, collect, use, store, and transmit only the Amazon
Information expressly authorized under the Agreement and solely for the purpose of providing
the services under the Agreement, consistent with the licenses (if any) granted under the
Agreement (the “
Permitted Purpose
”). Except as expressly authorized under the Agreement,
Supplier will not access, collect, use, store or transmit any Amazon Information and will not
Aggregate Amazon Information, even if Anonymized. Except with Amazon’s prior express
written consent, Supplier will not (1) transfer, rent, barter, trade, sell, rent, loan, lease or
otherwise distribute or make available to any third party any Amazon Information or (2)
Aggregate Amazon Information with any other information or data, even if Anonymized.
1.3.
Definitions.
1.3.1.
“
Aggregate
” means to combine or store Amazon Information with any data or
information of Supplier or any third party.
1.3.2.
“
Anonymize
” means to use, collect, store, transmit or transform any data or
information (including Amazon Information) in a manner or form that does not
identify, permit identification of, and is not otherwise attributable to any user, device
identifier, source, product, service, context, brand, or Amazon or its affiliates.
1.3.3.
“
Amazon Information
” means, individually and collectively: (a) all Amazon
Confidential Information (as defined in the Agreement or in the nondisclosure
agreement between the Parties); (b) all other data, records, files, content or
information, in any form or format, acquired, accessed, collected, received, stored or
maintained by Supplier or its affiliates from or on behalf of Amazon or its affiliates,
or otherwise in connection with the Agreement, the services, or the Parties’
performance of or exercise of rights under or in connection with the Agreement
(including Amazon Data); and (c) derived from (a) or (b), even if Anonymized.
2.
AMAZON SECURITY POLICY.
2.1.
Basic Security Requirements. Supplier will, consistent with current best industry standards and
such other requirements specified by Amazon based on the classification and sensitivity of
Amazon Information, maintain physical, administrative and technical safeguards and other
security measures (i) to maintain the security and confidentiality of Amazon Information
accessed, collected, used, stored or transmitted by Supplier, (ii) to protect that information from
known or reasonably anticipated threats or hazards to its security and integrity, accidental loss,
alteration, disclosure and all other unlawful forms of processing, and (iii) that do not constitute
unfair, deceptive or abusive acts or practices with respect to Amazon Information. Without
limitation, Supplier will comply with the following requirements:
2.1.1.
Firewall. Supplier will install and maintain a working network firewall to protect data
accessible via the Internet and will keep all Amazon Information protected by the
firewall at all times. The firewall must provide both ingress and egress filtering, and
have a default policy of blocking network traffic.
2.1.2.
Updates. Supplier will keep its systems and software up-to-date with the latest
upgrades, updates, bug fixes, new versions and other modifications necessary to ensure
security of the Amazon Information.
2.1.3.
Anti-virus. Supplier will at all times use best of breed anti-virus software and scanning
technologies, and regularly updated signature files, to ensure that all operating systems,
software and other systems hosting, storing, processing, or that have access to Amazon
Information and are known to be susceptible or vulnerable to being infected by or
further propagating viruses, spyware and malicious code, are and remain free from
such viruses, spyware and malicious code. Supplier will mitigate threats from all
viruses, spyware, and other malicious code that are or should reasonably have been
detected.
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2.1.4.
Supplier Policy. Supplier will maintain and enforce an information and network
security policy for employees, subcontractors, agents, and suppliers that meets the
standards set out in this policy, including methods to detect and log policy violations.
Upon request by Amazon, Supplier will provide Amazon with information on
violations of Supplier’s information and network security policy, even if it does not
constitute a Security Incident.
2.1.5.
Testing. Supplier will regularly test its security systems and processes to ensure they
meet the requirements of this Security Policy.
2.1.6.
Access Controls. Supplier will secure Amazon Information, including by complying
with the following requirements:
(A)
Supplier will assign a unique ID to each person with computer access to
Amazon Information.
(B)
Supplier will restrict access to Amazon Information to only those people with
a “need-to-know” for a Permitted Purpose.
(C)
Supplier will regularly review the list of people and services with access to
Amazon Information, and remove accounts that no longer require access. This
review must be performed at least once every 180 days.
(D)
Supplier will not use manufacturer-supplied defaults for system passwords
and other security parameters on any operating systems, software or other
systems. Supplier will mandate and ensure the use of system-enforced “strong
passwords” in accordance with the best practices (described below) on all
systems hosting, storing, processing, or that have or control access to,
Amazon Information (e.g., internal system-level account passwords) and will
require that all passwords and access credentials are kept confidential (e.g.,
not shared amongst personnel). Passwords must EITHER:
i.
[* * *], OR
ii.
Meet the following criteria:
a.
[* * *];
b.
[* * *].
c.
do not match previous passwords, the user’s login, a
dictionary word or common name; and
d.
are regularly replaced after no more than [* * *].
(E)
Supplier will maintain and enforce “account lockout” by disabling accounts
with access to Amazon Information when an account exceeds more than 10
consecutive incorrect password attempts.
(F)
Supplier will track all access to Amazon Information by unique ID and will
maintain a secure record of that access for at least the trailing 90 days, or such
longer period specified by Amazon based on the classification and sensitivity
of the Amazon Information.
(G)
Except where expressly authorized by Amazon in writing, Supplier will
isolate Amazon Information at all times (including in storage, processing or
transmission), from Supplier’s and any third party information.
(H)
If additional physical access controls are specified in an Order based on the
classification and sensitivity of Amazon Information, Supplier will
implement and use those secure physical access control measures.
(I)
Supplier will provide to Amazon, on an annual basis or more frequently upon
Amazon’s request, (1) log data about all use (both authorized and
unauthorized) of Amazon’s accounts or credentials provided to Supplier for
use on behalf of Amazon (e.g., social medial account credentials), and (2)
detailed log data about any impersonation of, or attempt to impersonate,
Amazon personnel or Supplier personnel with access to Amazon Information.
(J)
Supplier will regularly review access logs for signs of malicious behavior or
unauthorized access.
2.1.7.
[* * *].
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2.1.8.
“In Bulk” Access. Except where expressly authorized by Amazon in writing, Supplier
will not access, and will not permit access to, Amazon Information “in bulk” whether
the Amazon Information is in an Amazon- or Supplier-controlled database or stored in
any other method, including storage in file-based archives (e.g., flatfiles), etc. For
purposes of this section, “in bulk” access means accessing data by means of database
query, report generation or any other mass transfer of data. Specifically, this section
prohibits any access to Amazon Information except for access to individual records as
needed for the Permitted Purpose. Supplier will preserve detailed log data on attempted
or successful “in bulk” access to Amazon Information, and provide reports from these
logs as part of its obligations under Section 2.6 (Security Review). In the event that an
Order provides Amazon’s written authorization for access to Amazon Information “in
bulk”, Supplier will (1) limit such access to specified employees and specific roles
with the “need to know”, and (2) use tools that limit access and require explicit
authorization and logging of all access.
2.1.9.
Supplier Personnel. Amazon may condition access to Amazon Information by Supplier
personnel on (i) Amazon’s pre-approval of the authorized Supplier personnel and (ii)
Supplier personnel’s execution and delivery to Amazon of individual nondisclosure
agreements, the form of which is specified by Amazon. If Amazon informs Supplier
that these restrictions apply to particular Amazon Information, Supplier will (a)
immediately restrict access to that Amazon Information and all related information to
only those Supplier personnel that satisfy the conditions imposed by Amazon, (b) if
required by Amazon, obtain and deliver to Amazon signed individual nondisclosure
agreements from Supplier personnel that will have access to the Amazon Information
(prior to granting access or providing information to the Supplier personnel), (c)
maintain a list of all Supplier personnel who have accessed or received the Amazon
Information and promptly provide that list to Amazon upon request, and (d) notify
Amazon no later than 24 hours after any specific individual Supplier personnel
authorized to access Amazon Information in accordance with this section: (y) no longer
needs access to Amazon Information or (z) no longer qualifies as Supplier personnel
(e.g., the personnel leaves Supplier’s employment).
2.2.
Access to Amazon Extranet and Supplier Portals. Amazon may grant Supplier access to
Amazon Information via web portals or other non-public websites or extranet services on
Amazon’s or a third party’s website or system (each, an “
Extranet
”) for the Permitted Purpose.
If Amazon permits Supplier to access any Amazon Information using an Extranet, Supplier
must comply with the following requirements:
2.2.1.
Permitted Purpose. Supplier and its personnel will access the Extranet and access,
collect, use, view, retrieve, download or store Amazon Information from the Extranet
solely for the Permitted Purpose.
2.2.2.
Accounts. Supplier will ensure that Supplier personnel use only the Extranet account(s)
designated for each individual by Amazon and will require Supplier personnel to keep
their access credentials confidential. .
2.2.3.
Systems. Supplier will access the Extranet only through computing or processing
systems or applications running operating systems managed by Supplier and that
include: (i) system network firewalls in accordance with Section 2.1 (Firewall); (ii)
centralized patch management in compliance with Section 2.1.1 (Updates); (iii)
operating system appropriate anti-virus software in accordance with Section 2.1.3
(Supplier Policy); and (iv) for portable devices, full disk encryption in accordance with
Section 2.2.5 (Data Transmission).
2.2.4.
Restrictions. Except if approved in advance in writing by Amazon, Supplier will not
download, mirror or permanently store any Amazon Information from any Extranet on
any medium, including any machines, devices or servers,.
2.2.5.
Account Termination. Supplier will terminate the account of each of Supplier’s
personnel and notify Amazon no later than 24 hours after any specific Supplier
personnel who has been authorized to access any Extranet (a) no longer needs access
to Amazon Information or (b) no longer qualifies as Supplier personnel (e.g., the
personnel leaves Supplier’s employment).
2.3.
Data Transmission. Supplier will comply with Amazon’s standards for protecting the
confidentiality and integrity of all transmissions of Amazon Information, including the
requirements set forth below. Supplier acknowledges and agrees that Amazon’s choice of
encryption mechanisms may depend on a number of factors such as technical capability,
transaction volume, latency requirements, and availability requirements.
2.3.1.
Encryption. If Supplier transmits Amazon Information, it must transmit all Amazon
Information using an Amazon-approved mechanism for data transmission, which
include the following (and may include other methods as specified by Amazon):
(A)
Accepted Encryption Algorithms.
i.
[* * *]
ii.
[* * *]
iii.
[* * *].
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(B)
Accepted Transport encryption methods
i.
Common Internet protocols (e.g., AS2, HTTP, XML/HTTP) over
TLS 1.2 or greater, with certificate-based authentication
ii.
Digitally signed and encrypted PGP (Pretty Good Privacy) or GPG
(Gnu Privacy Guard) or S/MIME (Secure MIME) or XML-ENC
messages over any transport
iii.
IPSec connections, using suites “VPN-B”, “Suite-B-GCM-128”
or ”Suite-B-GCM-256”
iv.
SFTP or SSH connections, using 128-bit (or stronger) symmetric
encryption and host key verification.
2.3.2.
Verification. For all message-based encryption schemes employing digital signatures
(including PGP and S/MIME), Supplier will verify the digital signature of the message
and reject all messages with invalid signatures.
2.3.3.
Confidentiality. For all encryption schemes employing public key cryptography,
Supplier will ensure the confidentiality of the private component of the public-private
key pair and will promptly notify Amazon if the private key is compromised.
Encryption keys must not be shared with Third Party Providers or any other third
parties.
2.3.4.
Third Party Systems. Without limitation, Supplier will only use the methods approved
in Section 2.3 (Encryption) to encrypt files or backups that include any Amazon
Information before storing such information in any third party systems, networks or
other storage devices (including “cloud” services or public utility file storage services)
(“
Third Party System
”).
(A)
Supplier will give Amazon prior notice and obtain Amazon’s prior written
approval before it uses any Third Party System that stores or may otherwise
have access to Amazon Information, unless a) the data is encrypted in
accordance with this Security Policy, and b) the Third Party System will not
have access to the decryption key or unencrypted “plain text” versions of the
data. Amazon reserves the right to require an Amazon security review (in
accordance with Section 2.5 (Security Review)) of the Third Party System
before giving approval.
(B)
If Supplier uses any Third Party Systems that store or otherwise may access
unencrypted Amazon Information, Supplier must perform a security review
of the Third Party Systems and their security controls and will provide
Amazon periodic reporting about the Third Party System’s security controls
in the format requested by Amazon (e.g., SASE70 or its successor report), or
other recognized industry-standard report approved by Amazon).
2.4.
Data Retention and Destruction.
2.4.1.
Retention. Supplier will retain Amazon Information only for the purpose of, and as
long as is necessary for, the Permitted Purpose.
2.4.2.
Return or Deletion. Supplier will promptly (but within no more than 72 hours after
Amazon’s request) return to Amazon and permanently and securely delete all Amazon
Information upon and in accordance with Amazon’s notice requiring return and/or
deletion. Also, Supplier will permanently and securely delete all live (online or
network accessible) instances of the Amazon Information within 90 days after the
earlier of completion of the Permitted Purpose or termination or expiration of the
Agreement.
2.4.3.
Archival Copies. If Supplier is required by Law to retain archival copies of Amazon
Information for tax or similar regulatory purposes, this archived Amazon Information
must be stored in one of the following ways:
(A)
As a “cold” or offline (i.e., not available for immediate or interactive use)
backup stored in a physically secure facility; or
(B)
Encrypted in accordance with Section 2.2.5 (Data Transmission), where the
system hosting or storing the encrypted file(s) does not have access to a copy
of the key(s) used for encryption.
2.4.4.
Recovery. If Supplier performs a “recovery” (i.e., reverting to a backup) for the
purpose of disaster recovery, Supplier will have and maintain a process that ensures
that all Amazon Information that is required to be deleted pursuant to the Agreement
or this Security Policy will be re-deleted or overwritten from the recovered data in
accordance with this Section 2.4 within 24 hours after recovery occurs. If Supplier
performs a recovery for any purpose, no Amazon Information may be recovered to any
third party system or network without Amazon’s prior written approval. Amazon
reserves the right to require an Amazon security review (in accordance with Section
2.5 (Security Review)) of the third party system or network before permitting recovery
of any Amazon Information to any third party system or network.
2.4.5.
Deletion Standards. All Amazon Information deleted by Supplier will be deleted in
accordance with the NIST Special Publication 800-88 Revision 1, Guidelines for
Media
Sanitation
December
18,
2014
(available
at
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-88r1.pdf
),
or
through degaussing of magnetic media in an electromagnetic flux field of 5000+ GER,
or by shredding or mechanical disintegration, or such other standards Amazon may
require based on the classification and sensitivity of the Amazon Information. With
respect to Amazon Information encrypted in compliance with this Security Policy, this
deletion may be done by permanently and securely deleting all copies of the keys used
for encryption.
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2.5.
Forensic Destruction. Before disposing in any manner of any hardware, software, or any other
media that contains, or has at any time contained, Amazon Information, Supplier will perform
a complete forensic destruction of the hardware, software or other media so that none of the
Amazon Information can be recovered or retrieved in any form. Supplier will perform forensic
destruction in accordance with the standards Amazon may require based on the classification
and sensitivity of the Amazon Information. Supplier will not sell, resell, donate, refurbish, or
otherwise transfer (including any sale or transfer of any such hardware, software, or other media,
any disposition in connection with any liquidation of Supplier’s business, or any other
disposition) any hardware, software or other media that contains, or has at any time contained,
Amazon Information and all data storing devices have not been Forensically Destroyed by
Supplier.
2.6.
Security Review.
2.6.1.
Initial Review. If Amazon requests, Supplier will undergo an initial security review (to
be conducted by, and in accordance with standards specified by, Amazon or its
authorized representatives), including the completion of a risk assessment
questionnaire provided by Amazon. Supplier will cooperate and provide Amazon with
all required information within a reasonable time frame but no more than 20 calendar
days from the date of Amazon’s request.
2.6.2.
Amazon reserves the right to periodically request Supplier to complete a new Amazon
risk assessment questionnaire.
2.6.3.
Certification. Upon Amazon’s written request, Supplier will certify in writing to
Amazon that it is in compliance with this Agreement.
2.6.4.
Other Reviews. Amazon reserves the right to periodically review the security of
systems that Supplier uses to process Amazon Information. Supplier will cooperate
and provide Amazon with all required information within a reasonable time frame but
no more than 20 calendar days from the date of Amazon’s request.
2.6.5.
Remediation. If any security review identifies any deficiencies, Supplier will, at its
sole cost and expense, promptly take all actions necessary to remediate those
deficiencies.
2.7.
Security Incidents. Supplier will inform Amazon within 8 hours of detecting any actual or
suspected unauthorized access, collection, acquisition, use, transmission, disclosure, corruption
or loss of Amazon Information, or breach of any environment (i) containing Amazon
Information, or (ii) managed by Supplier with controls substantially similar to those protecting
Amazon Information (each, a “
Security Incident
”). Supplier will remedy each Security
Incident in a timely manner and provide Amazon written details regarding Supplier’s internal
investigation regarding each Security Incident. Supplier agrees not to notify any regulatory
authority, nor any customer, on behalf of Amazon unless Amazon specifically requests in
writing that Supplier do so and Amazon reserves the right to review and approve the form and
content of any notification before it is provided to any party. Supplier will cooperate and work
together with Amazon to formulate and execute a plan to rectify all confirmed Security
Incidents.
2.8.
General. All choices (no matter how described) by Amazon under this Agreement will be made
in its sole discretion. Any list of examples following “including” or “e.g.” is illustrative and not
exhaustive, unless qualified by terms like “only” or “solely.” All references to standards for
security requirements under this Security Policy refer to the specified standards and their
respective successor versions or equivalent versions, as they may be updated, unless Amazon
specifies otherwise. All notices under this Security Policy will be given in accordance with the
requirements for notices under the Agreement.
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EXHIBIT D
SERVICES AND SERVICE LEVEL AGREEMENT
A.
[* * *]
1.
[* * *].
2.
[* * *]:
2.1
[* * *];
2.2
[* * *];
2.3
[* * *];
2.4
[* * *];
2.5
[* * *];
2.6
[* * *]; and
2.7
[* * *].
3.
SCHEDULED DOWNTIME
. “Scheduled Downtime” is any amount of time that printer Products are not
expected to be available and operable for access and use by Purchaser. Scheduled Downtime shall not exceed
[* * *] % of total month hours. Scheduled Downtime includes:
3.1
automatic self-maintenance or self-cleaning performed by the printer Products;
3.2 scheduled outages by Supplier as agreed upon between the parties. Supplier shall notify Amazon at least
5 business days in advance of all scheduled outages of the printer Products in whole or in part.
4.
[* * *].
5.
[* * *].
5.1
[* * *].
5.2
[* * *].
5.3
[* * *].
B.
Maintenance and Warranty Services.
Supplier shall provide Maintenance and Warranty Services for the Products (collectively, “
Support Services
”) in
accordance with the provisions of this Exhibit D at the rates specified in Schedule 1.
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1.
MAINTENANCE SERVICE RESPONSIBILITIES
. Supplier shall:
1.1
[* * *];
1.2
[* * *];
1.3
[* * *];
1.4
[* * *];
1.5
[* * *];
1.6
[* * *];
1.7
[* * *];
1.8
[* * *]; and
1.9
[* * *].
2.
SERVICE MAINTENANCE
. Supplier shall make continuous efforts to [* * *]:
2.1
[* * *].
2.2
[* * *]; and
2.3
[* * *].
3.
SUPPORT SERVICE LEVEL REQUIREMENTS
. Supplier shall [* * *].
3.1
[* * *].
3.2
Response and Resolution Time Service Levels
. [* * *]
3.3
Escalation
. [* * *].
4.
AMAZON FACILITIES
. Services will be provided, upon election by Amazon, at facilities in, but not
limited to, the following US regions (and approximate metropolitan areas) (collectively, along with other
facilities mutually agreed upon, the “
Amazon Facilities
”):
■
[* * *]
Note: [* * *].
5.
SERVICE CONTACTS
. Supplier hereby designates the following people as Support Contacts:
[NAME 1]
[EMAIL ADDRESS]
[PHONE NUMBER]
[NAME 2]
[EMAIL ADDRESS]
[PHONE NUMBER]
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SCHEDULE 1
PRICING
Printers
Purchase Price
Over any [* * *] period starting on May 1, 2016 or its anniversary (each, a “
Printer Measurement Period
”),
Purchaser may purchase AV-1000 printers from Supplier for:
Number of Printers Ordered by Purchaser during
Applicable Printer Measurement Period
Cost per AV-1000 printer
[* * *]
[* * *]
[* * *]
[* * *]
Rebate Terms
Upon Purchaser’s placement of an order which would result in [* * *] printers having been invoiced or ordered
for immediate shipment within a Printer Measurement Period, a rebate of $[* * *] (the “
Printer Volume Rebate
”)
will be applied to the order. If the total amount of the order is less than Printer Volume Rebate, then Supplier will
credit any remainder of the Printer Volume Rebate against any Purchaser accounts receivable outstanding at the
time of the order. If after such credit is applied any portion of the Printer Volume Rebate remains, Supplier will
remit payment of such remainder to Amazon within 30 days of the applicable order.
Shipping
The Purchaser will be charged Supplier’s cost of shipping the applicable printer Product units to a Purchaser -
with no markup. Shipping costs to Purchaser designated locations in the United States shall not exceed (“
Max
Printer Shipping Charge
”):
■
Via Sea Freight - $[* * *] per printer Product unit
■
Via Air Freight - $[* * *] per printer Product unit
The Max Printer Shipping Charge for shipping to locations outside of the United States will be agreed upon by
the parties prior to shipment.
The parties will discuss the Max Printer Shipping Charge at least once a year and may adjust the Max Printer
Shipping Charge by mutual written agreement. The Max Printer Shipping Charge may be exceeded only if agreed
to by Amazon prior to shipment.
Ink
Purchase Price
Over any [* * *] period starting on May 1, 2016 or its anniversary (each, an “
Ink Measurement Period
”),
Purchaser may purchase ink from Supplier for:
Liters of Ink Ordered by Purchaser during
Applicable Ink Measurement Period
Cost per liter
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
Rebate Terms
●
[* * *]
Shipping
[* * *]
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Parts
Purchase Price
All printer Product parts will be provided during the Warranty Period at no cost to Purchaser.
After the expiration of the Warranty Period, Purchaser will be charged at Supplier’s actual cost for such Product
part plus a 10% markup. Supplier will provide documentation of its direct costs upon Amazon’s request. Supplier
will supply Purchaser a price list for Product parts upon Amazon’s request.
Rebate Terms
No rebate for parts.
Shipping
During the Warranty Period, Supplier will pay all costs associated with shipping printer Product parts.
After the expiration of the Warranty Period, The Purchaser will be charged Supplier’s cost of shipping the
applicable Product parts with no markup.
Consumables
Purchase Price
For the 12 months after May 1st, all consumables other than fixation (including, but not limited to, flushing fluid,
etc.), will be sold to Purchaser [* * *].
Fixation will be sold to Purchaser at $[* * *] per gallon.
Rebate Terms
No rebate for consumables.
Shipping
Purchaser will be charged for Supplier’s cost of shipping with no markup.
Upgrades
Purchase Price
Purchaser, at its sole discretion, may purchase upgrades for Product parts upon general availability of such upgrade
and according to the following schedule:
Upgrade Part
Unit Price
Recirculating print heads
[* * *]
Bulk ink delivery system
[* * *]
Quick release pallet
[* * *]
Rebate Terms
[* * *]
Warranty
Price
$[* * *] per printer Product unit per Warranty Period Extension.
Maintenance Services
Price
Maintenance Services will cost $[* * *] per Purchaser designated site per year.
Software products and Training
Software products that are not embedded to the printing system and additional training requested by Amazon
beyond that provided as part of the Maintenance Services will be charged [* * *].
Calculation of Purchase Volumes
When calculating purchase volumes under this Agreement (e.g., for the purpose of determining pricing and rebates
for printers and Ink), all purchases by all Purchasers will be aggregated and that total purchase volume will be
used.
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SCHEDULE 2
SPECIFICATIONS
[* * *]
(total of 2 pages)
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SCHEDULE 3
OPEN SOURCE SOFTWARE USED BY QPP
Software
Source
Source Link
License Link
.NET
Framework
Microsoft
https://www.microsoft.com/net
https://msdn.microsoft.com/en-us/
library/ms994405.aspx
Log4net
Apache
Logging
Services
https://logging.apache.org/log4net
https://logging.apache.org/log4net/
license.html
State machine
toolkit
Code Project
http://www.codeproject.com/Articles/11663
/A-NET-State-Machine-Toolkit-Part-I
http://www.codeproject.com/info/
cpol10.aspx
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SCHEDULE 4
CONSIGNMENT PARTS
[to be agreed upon by the parties in the next monthly business 360 meeting ]
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