EXHIBIT 10.21
Oki Data Americas, Inc.
OEM PURCHASE AGREEMENT
Transact Technologies Inc., with a location at 7 Laser Lane, Wallingford, CT
06492 (hereinafter "Customer") agrees to purchase and Oki Data Americas, Inc.,
with a location at 2000 Bishops Gate Boulevard, Mt. Laurel, New Jersey
08054-4620 (hereinafter "Oki Data") agrees to sell the Product(s), in the
quantity specified in the annexed Exhibit A (the Specified Quantity), at the
prices set forth in that Exhibit A and upon the terms and conditions set forth
herein. "Products" as used herein and throughout the Agreement pertain to
printer kits which will be further modified by Customer to create Customer's end
product for resale
1. TERM OF AGREEMENT
The term of this Agreement shall be two (2) years commencing on June 8,
2001 (the Effective Date). Orders placed during this twenty-four (24) month
ordering period must be scheduled for delivery within thirty (30) months of the
Effective Date.
2. CUSTOMER ORDERS
Purchases by Customer will be by individual written Customer purchase
orders made during the term of this Agreement issued to and accepted by Oki
Data. Each purchase order, subject to the conditions set forth in Paragraph 4
below, shall set forth the desired delivery schedule for each Product.
3. QUANTITY OF PRODUCT
During the term of this Agreement, Customer anticipates purchasing a total
quantity of fifty thousand ( 50,000 ) units of Product over the term of the
Agreement.
4. PRICES
A. The unit price for the Specified Quantity and any quantity in excess
thereof purchased by Customer shall be as set forth in Exhibit A.
Prices will be firm through March 31, 2001. The parties agree to
meet mid October of 2001 to discuss pricing which will become
effective for purchases after March 31,
2001.
B. Oki Data warrants that the prices, terms and conditions offered
under this Agreement are no less favorable than those offered to
other OEM customers buying similar products in similar quantities.
C. Should Oki Data decrease the price of like products to its other OEM
customers, any such decrease will be passed on to the Customer to
the extent that Oki Data offers the same price reduction to its
other customers, procuring the same volumes and who are similarly
situated. Price decreases do not include marketing programs or price
changes that Oki Data may offer through its other channels of
distribution, including, but not limited to, spiffs, rebates, one
time offers and or marketing incentives.
5. RESCHEDULING OF DELIVERIES
Deliveries pursuant to each purchase order shall be scheduled to commence
no earlier than one hundred and twenty (120) days after receipt of such
purchase order by Oki Data. With respect to any Product on any single
purchase order, Customer may, by issuing a written amendment to that
purchase order, and upon the following conditions, reduce the quantity of
the Product to be delivered in accordance with the purchase order delivery
schedule:
(i) There has been no prior reduction in delivery of that Product
on that purchase order. A new delivery schedule will be set
forth in the amendment for Products deleted from the original
delivery schedule of the purchase order.
(ii) A maximum reduction of seventy-five percent (75%) of the
quantity may be made provided the written amendment is
received by Oki Data more than sixty (60) days prior to the
scheduled delivery.
(iii) A maximum reduction of fifty percent (50%) of the quantity may
be made provided the written amendment is received by Oki Data
more than thirty (30) days prior to the scheduled delivery.
(iv) Any attempted reduction exceeding the quantities set forth in
this Paragraph 5, and any attempted reduction made within
sixty (60) days prior to the scheduled delivery may, at the
option of Oki Data, be treated as a cancellation, effective on
the date of Oki Data's receipt of the amendment to the
purchase order, and Customer shall pay the cancellation
charges set forth in the Paragraph 6 below.
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6. CANCELLATION CHARGES
A. In the event Customer cancels any purchase order or portion thereof,
Customer, upon receipt of invoice shall pay Oki Data cancellation charges
computed for Product as follows:
Cancellation Notice
Received By Oki Data Cancellation Charge
Excess of sixty (60) days. No charge.
31 to 60 days prior to Ten (10%) percent of the
originally scheduled Specified Quantity price.
delivery date.
Cancellation notices received within the thirty (30) day period prior to
the originally scheduled delivery or attempted cancellation of a
previously rescheduled deliveries will be void and of no force and effect,
and Customer will be liable for the full unit price of each Product.
7. CUSTOMER FORECASTS
Once each month, at the end of the third week of each month, Customer will
furnish to Oki Data a written non-binding forecast of its requirements for the
Product(s) and ribbons for the ensuing one hundred eighty (180) days.
8. PAYMENT
A. Payment shall be made within thirty (30) days from the date of invoice.
Interest shall accrue thereafter at the rate of one and one-half (1 1/2%)
percent per month on the unpaid balance.
B. Prices are exclusive of any sales, use, property, and like taxes. Any
such tax Oki Data may be required to collect or pay upon the sale or
delivery of the Products shall be promptly reimbursed by Customer.
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9. PATENT INDEMNITY
A. Oki Data shall defend or settle any suit or proceeding brought against
Customer to the extent that such suit or proceeding is based on a claim
that Products manufactured to Oki Data's design and purchased hereunder
constitute an infringement of an existing United States Patent, copyright,
or other intellectual property right provided Oki Data is notified
promptly in writing and given complete authority, information and
assistance required for defense of same, and Oki Data shall pay all
damages and costs awarded as a result thereof against Customer. Oki Data,
however, shall not be responsible for any cost, expense, or compromise
incurred or made by Customer without Oki Data's prior written consent.
B. In the event any Product furnished hereunder is, in Oki Data's opinion,
likely to or does become the subject of a claim of infringement of a
patent, Oki Data may, at its option and expense, procure for Customer the
right to continue using the Product, replace same with a non-infringing
Product of similar capability, or modify the Product so it becomes
non-infringing. If, in Oki Data's opinion, none of the foregoing
alternatives is reasonably available to Oki Data, Oki Data may terminate
this Agreement forthwith by written notice to Customer and, upon return or
disposal of the Product in accordance with the written instructions of Oki
Data, refund the price paid by Customer, less straight line depreciation
on the basis of a five (5) year life of the Product.
C. Oki Data shall have no responsibility or liability for any claim of
infringement (i) arising out of the use of its Products in combination
with non-Oki Data products, or (ii) if such infringement arises out of
Product manufactured to Customer's design, or (iii) if such infringement
arises as a result of a customer modification to the Product.
D. The foregoing states the entire liability of Oki Data with respect to
infringement of any patent by the Products of Oki Data or any parts
thereof and, anything herein to the contrary notwithstanding, Oki Data's
liability to Customer hereunder shall in no event exceed the total price
plus taxes and other associated charges paid to Oki Data by Customer for
each infringing Product purchased pursuant to this Agreement.
10. TERMINATION
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This Agreement may be terminated or canceled as follows:
A. By either party at any time if the other party violates any provision
of this Agreement. The defaulting party shall have a period of thirty (30)
days from the date of receipt of written notice from the non-defaulting
party describing the fact and nature of the default within which to remedy
the default. Should Customer be the defaulting party, Oki Data, during the
aforesaid thirty (30) day period, shall be relieved of any obligations
imposed on it by this Agreement until the default is cured. The
termination shall become effective at the end of the thirty (30) day
period if the defaulting party has failed to remedy the default.
B. If either party (i) admits in writing its inability to pay its debts
generally as they become due, or (ii) makes an assignment for the benefit
of its creditors, or (iii) institutes or consents to the filing of a
petition in bankruptcy, whether for reorganization or liquidation, under
federal or similar applicable state laws, or (iv) is adjudged bankrupt or
insolvent by a court having jurisdiction, then in either of such events,
the other party may, by written notice, immediately terminate this
Agreement.
C. Customer's obligation to pay for all Products received by it hereunder
shall survive termination of this Agreement. Moreover, should termination
be effected by Oki Data for any of the reasons set forth in this
Paragraph10, Customer shall be liable for the undelivered quantity of
Products to the same extent as if Customer had canceled deliveries
pursuant to Paragraphs 5 or 6 above, at Oki Data's option.
11. SHIPPING AND RISK OF LOSS
All prices are F.O.B. Oki Data's facilities, Mt. Laurel New Jersey. Oki
Data will package the Products in accordance with accepted standard commercial
practices for normal shipment considering the type of Product involved and the
normal risks encountered in shipments. Customer shall designate the method of
shipment on each individual purchase order issued against this Agreement. Oki
Data shall arrange for shipment by the designated method. All transportation
charges are freight collect.
12. LIMITATION OF LIABILITY
In no event will Oki Data be liable for loss of profits or incidental,
special, or consequential damages arising out of any breach of obligations under
this Agreement, nor will Oki Data be liable for any damages caused by delay in
delivery of the Products
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being purchased hereunder.
13. VALUE ADDED
Customer warrants and represents that the Products purchased hereunder are
for use and resale by Customer as part of, or as accessories to, equipment
manufactured or assembled by Customer, or are modified by Customer so as to
change the Products normal functionality from that Product as sold to Customer
by Oki Data.
14. EXPORT RESTRICTIONS
Customer warrants that it shall not at any time make or permit any export
or reexport of Oki Data Products directly or indirectly to any country, without
full compliance with United States export laws and regulations as issued by the
United States Department of Commerce, Office of Export Administration, as
amended from time to time, as those laws and regulations apply to Oki Data
Products, and all other things delivered to, or derived from things delivered
to, Customer under the OEM Purchase Agreement. Customer's failure to comply with
the requirements of this paragraph constitutes an event of default giving Oki
Data the right to terminate the OEM Purchase Agreement immediately.
15. CONFIDENTIALITY AND PROPRIETARY RIGHTS
Each party (including its agents and employees) warrants that it shall not
disclose to any third party, or use or reproduce for any purpose whatsoever the
Intellectual Property of the other party, and shall treat as proprietary the
other parties , trade secrets, technical data, methods, processes or procedures
or any other confidential, financial, or business information or data obtained
from the other party which the receiving party has access to or becomes aware of
during the course of its performance of the OEM Purchase Agreement, without the
prior written consent of the disclosing party.
Nothing herein shall limit Customer's use or dissemination of information
not derived from Oki Data, or any information that was, or subsequently has
been, made public by Oki Data. This obligation shall survive the cancellation or
other termination of the OEM Purchase Agreement.
16. WARRANTY
All Products purchased under this Agreement are sold without warranty.
Receiving
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inspection quality issues will be addressed between the parties.
17. SPARE PARTS
A. Spare parts, and the prices therefor, for Products purchased
hereunder shall be listed in Oki Data's Suggested End-User Price
List issued from time to time by Oki Data. Suitable spare parts
will be available for a period of seven (7) years from the date of
last delivery under this Agreement and may be purchased by the
issuance of a Customer purchase order acceptable to Oki Data. If
Customer requires spare parts after they are no longer available
from Oki Data, Oki Data will provide available drawings or
purchase specifications to assist Customer in obtaining the
products from other sources. The documentation to be supplied will
be that documentation as is in existence at that time.
B. The minimum spare parts order is fifty dollars ($50.00).
C. Spare parts for the Products and their prices will be listed in
the Recommended end user Spare Parts List (RSPL) which will be
issued from time to time by Oki Data. Effective October 1, 2001,
spare parts pricing will go from fifty (50%) percent off list
price to forty (40%) percent off list price with exception of the
following spare parts for which the discount will remain at fifty
(50%) percent off list price; part number 55080201, main control
board, M90 serial; and part number 40140601, M150 Serial I/F
board; and, part number 40297801, M150 Parallel I/F board.
D. Ribbons and manuals have special pre-discounted prices and are
therefor not subject to the above discount. Purple ribbon part
number 52108701 is $* each, and the black ribbon part number
52109401 is $* each.
E. The aforementioned pricing, as contained in this paragraph 17 will
remain in effect until March 31, 2002.
18. GENERAL PROVISIONS
A. All notices required to be given hereunder will be sent by registered
or certified mail, return receipt requested, postage prepaid or by prepaid
overnight courier, forwarded to the appropriate party at the address shown
below, or at such other addresses as that party may, from time to time,
advise in writing, and which have been received in the ordinary course of
post.
* Confidential treatment requested
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B. Neither party shall have the right to assign its rights or obligations
under this Agreement except with the written consent of the other party,
provided, however, that a successor in interest by merger, by operation of
law, or by assignment, purchase of otherwise of the entire business of
either party, shall acquire all interest of such party hereunder. Any
prohibited assignment shall be null and void.
C. The failure of either party to enforce at any time the terms,
conditions, requirements, or any other provisions of this Agreement shall
not be construed as a waiver by such party of any succeeding
non-performance of the same term, condition, requirement or any other
provision of this Agreement.
D. The headings of paragraphs contained herein are for convenience and
reference only and are not a part of this Agreement, nor shall they in any
way affect the interpretation thereof.
E. The parties agree that if any portion of this Agreement shall be held
illegal and/or unenforceable, the remaining portions of this Agreement
shall continue to be binding and enforceable provided that the effectivity
of the remaining portion of this Agreement would not defeat the overall
business intent of the parties, or give one party any substantial
financial benefit to the detriment of the other party.
F. This Agreement and its appendices shall be governed by the laws of the
party against whom a claim is being made in any dispute, or if such claim
is made in litigation, by the laws of the state of the defendant.
G. This Agreement constitutes the entire Agreement between the parties and
supersedes all prior discussion either oral or in writing.
H. The terms and conditions of this Agreement will prevail notwithstanding
any variance with the terms and conditions of any order or release
submitted by Customer, or any release acknowledgment returned by Oki Data.
Except as expressly set forth in this Agreement, this Agreement shall not
be deemed, or construed to be, modified, amended, rescinded, or canceled
in whole or in part, except by written amendment executed by the parties
hereto.
I. EXHIBIT A, PRICES attached hereto, are hereby incorporated herein by
this reference.
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IN WITNESS WHEREOF, the parties hereto have set their names on the dates
hereinafter set forth.
Transact Technologies, Inc. Oki Data Americas, Inc.
/s/ Bart C. Shuldman /s/ David L. Vaughn
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Signature Signature
Bart C. Shuldman David L. Vaughn
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Name Name
Chairman and CEO Sr. Manager, Legal Affairs
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Title Title
June 21, 2001 June 26, 2001
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Date Date
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EXHIBIT A
PRICES
OKIDATA KIT PART NUMBER MINIMUM ORDER NEW PRICING
M90 58238101 500 $*
M150P 40248402 500 $*
M150S 40248401 500 $*
M172P 58221401 500 $*
M172S 58221501 500 $*
ML172IGT 40248403 500 $*
The pricing table above is effective for orders for delivery after December 8,
2001 through March 31, 2002.
* Confidential treatment requested.
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