EXHIBIT 10.30
CONFIDENTIAL TREATMENT REQUESTED FOR CERTAIN PORTIONS
[**] indicates that confidential information has been omitted and filed
separately with the SEC in an application for confidential treatment.
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,
2003 (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 [**] units of Product per year.
4. PRICES
A. The unit price, minimum order quantity, and any quantity in
excess thereof for Products purchased by Customer shall be as
set forth in Exhibit A. Oki Data may change the unit price and
minimum order quantity by providing Customer with at least one
hundred eighty (180) days advance written notice of any such
change.
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. ORDER LEAD TIME & CANCELLATION
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. All purchase orders issued by Customer can not be
cancelled or reschedule, except by Customer providing Oki Data with a written
cancellation or rescheduling request with five (5) business days of original
purchase order date.
6. 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.
7. 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.
8. 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, 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
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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.
9. TERMINATION
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 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
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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 Paragraph 10, 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.
10. 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.
11. 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 being purchased hereunder.
12. 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.
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13. 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.
14. 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.
15. WARRANTY
All Products purchased under this Agreement are sold without warranty.
Receiving inspection quality issues will be addressed between the parties.
16. 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
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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. Recommended End-User Spare Parts List (RSPL) will be issued from
time to time by Oki Data. All spare parts pricing will be at [**]
percent off list price with the exception of the following spare
parts which will be at [**] off list price: Part Number 55080201,
Main Controller Board, M90 Serial; and Part Number 40140601, M150
Serial l/F Board; and, Part Number 40297801, M150 Parallel l/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.
19. 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.
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.
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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.
IN WITNESS WHEREOF, the parties hereto have set their names on the
dates hereinafter set forth.
Transact Technologies, Inc. Oki Data Americas, Inc.
/s/ Richard L. Cote /s/ John Insogno
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Signature Signature
Richard L. Cote John Insogno
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Name Name
EVP, Secretary, Treasurer, CFO Contract Admin.
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Title Title
June 5, 2003 June 9, 2003
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Date Date
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EXHIBIT A
PRICES
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OKI DATA KIT PART NUMBER MINIMUM ORDER UNIT PRICE
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M90 58238101 [**] [**]
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M150P 40248402 [**] [**]
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M150S 40248401 [**] [**]
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M172P 58221401 [**] [**]
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M172S 58221501 [**] [**]
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ML172IGT 40248403 [**] [**]
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