EXHIBIT 10.17
OKI DATA AMERICAS, INC. - OEM SALES 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 printer kits and related
consumables (hereinafter "Products") indicated in Exhibit A, and spare parts for
Products (hereinafter "Spare Parts") indicated in Section 17 herein based on the
terms and conditions of this Agreement.
1. TERM OF AGREEMENT
The term of this Agreement shall be one (1) year commencing on June 8, 2005
(hereinafter "Effective Date") and shall automatically renew for additional one
(1) periods unless terminated by either party as follows: (i) by providing
written notice at least thirty (30) days prior to the end of then current term,
or (ii) in accordance with the provisions of Section 9 herein.
2. CUSTOMER ORDERS
Purchases of Product and Spare Parts by Customer will be made through individual
written purchase orders (hereinafter "Purchase Orders") issued to and accepted
by Oki Data. Purchase Orders for Products may be issued to Oki Data for either
of the following purposes as specified by Customer:
A. Safety Stock Order Requirement - Products ordered for this purpose will
be initially delivered to Oki Data's warehouse in Mt. Laurel, NJ and held
at that location pending subsequent release orders (hereinafter "Release
Order(s)") by Customer to have the Products delivered to Customer's
location at 20 Bomax Drive, Ithaca, NY 14850 (hereinafter "Designated
Location"). Customer must issue a Release Order to take delivery of all
Products remaining in Safety Stock by March 31 of any calendar year.
B. Regular Order Requirement - Products ordered for this purpose will be
shipped directly to Designated Location.
C. Annual Order for Stock Balancing Printer Kits (Refer to Exhibit A) -
Products ordered for this purpose will be shipped directly to Designated
Location.
3. QUANTITY OF PRODUCT
During each then current term of this Agreement, Customer anticipates purchasing
an annual total of [*] printer kits from Oki Data.
4. PRICES, ORDER QUANTITIES, AND DELIVERY TERMS
A. The unit prices and order quantities for Products are as set forth in
Exhibit A. Such prices are based on the delivery term "FOB Oki Data's
Designated Shipping
[*] Confidential treatment requested.
OKI DATA AMERICAS, INC. - OEM SALES AGREEMENT
Facility (Mt. Laurel, NJ)". Under this delivery term, Customer will be
responsible for all freight and transportation costs on a "freight collect"
basis. Risk of loss and title to all Products will pass to Customer upon
deliver to Customer's carrier at Oki Data's Shipping Facility. Oki Data may
change the unit price and/or order quantities by providing Customer with at
least one-hundred eighty (180) days advance written notice of any such
change.
B. The unit prices and order quantities for Spare Parts shall be as set
forth in Section 17 herein. Such prices are based on the delivery term "FOB
Oki Data's Designated Shipping Facility (Mt. Laurel, NJ)". Under this
delivery term, Customer will be responsible for all freight and
transportation costs on a "freight collect" basis. Risk of loss and title
to all Spare Parts will pass to Customer upon deliver to Customer's carrier
at Oki Data's Shipping Facility.
C. Oki Data warrants that the prices, terms and conditions offered under
this Agreement are no less favorable than those offered to other OEM
customers of Oki Data buying similar products in similar quantities. 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. DELIVERY LEAD TIMES & ORDER CANCELLATION
A. Deliveries pursuant to each Purchase Order for Products, applicable to
either Safety Stock or Regular Order Requirements, shall be made on a best
effort basis and typically within one hundred and twenty (120) days after
receipt of such Purchase Order by Oki Data. Deliveries from Safety Stock to
Designated Location shall be made within five (5) business days of Oki
Data's receipt of Customer's Release Order.
B. Deliveries pursuant to each Purchase Order for Spare Parts shall be made
on a best effort basis and typically within thirty (30) days after receipt
of such Purchase Order by Oki Data.
C. All Purchase Orders issued by Customer can not be cancelled except if
Customer Provides Oki Data with a written cancellation request within five
(5) business days of the Purchase Order date.
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Oki Data Americas, Inc. - OEM Sales Agreement
6. CUSTOMER FORECASTS
By the tenth (10th) day of each calendar month, Customer shall furnish to Oki
Data a written non-binding forecast of its requirements for Products for the
ensuing twelve (12) month period.
7. PAYMENT
A. Payment for Products and Spare Parts purchased hereunder shall be made
by Customer within thirty (30) days from Oki Data's invoice date. Interest
shall accrue thereafter at the rate of one and one-half (1.5%) percent per
month on the unpaid balance.
B. Prices for Products and Spare Parts 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 or Spare Parts 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 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
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Oki Data Americas, Inc. - OEM Sales Agreement
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 Products
manufactured to Customer's design, or (iii) if such infringement arises as
a result of a customer modification to the Products.
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 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 and Spare Parts 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 Section 9 at Oki Data's option, Customer shall be liable for the
undelivered quantity of
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OKI DATA AMERICAS, INC. - OEM SALES AGREEMENT
Products or Spare Parts.
10. PACKAGING
Oki Data will package Products and Spare Parts in accordance with accepted
standard commercial practices for normal shipment considering the type of
Products and Spare Parts involved in the transaction and the normal risks
encountered in shipments thereof.
11. COMPLIANCE WITH RoHS
With respect to individual components included in printer kits, Oki Data will
comply with the European Union directive on the restriction of the use of
certain hazardous substances in electrical and electronic equipment (RoHS) in
accordance with the schedule provided in Exhibit 8.
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 being purchased hereunder.
13. CUSTOMER'S VALUE ADD AND RESALE OF PRODUCTS
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 normal functionality of the Products 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
re-export of Products or Spare Parts 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 Products,
Spare Parts and all other things delivered to, or derived from things delivered
to, Customer under this Agreement. Customer's failure to comply with the
requirements of this provision constitutes an event of default giving Oki Data
the right to terminate this Agreement immediately.
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OKI DATA AMERICAS, INC. - OEM SALES AGREEMENT
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 and Spare Parts purchased under this Agreement are subject to a
defect inspection warranty that expires thirty (30) days after delivery of same
to Customer. During this period, Customer shall furnish Oki Data with a written
description of any claimed defect. Oki Data shall then have the option to remedy
the defect either at Customer's facility or at Oki Data's Repair Depot. If Oki
Data elects the latter, it shall issue a Return Goods Authorization number
(hereinafter "RGA") to Customer. No allegedly defective Product or Spare Part
will be accepted by Oki Data without an RGA. Customer shall ship the defective
Products or Spare Parts to Oki Data on a freight prepaid basis. Transportation
costs for the return of a repaired or replacement Products or Spare Parts to the
Designated Location shall be paid by Oki Data.
17. SPARE PARTS
A. Spare Parts for Products and their prices shall be listed in Oki Data's
Suggested End-User Price List issued from time to time by Oki Data. Spare
Parts will be available for a period of seven (7) years from the date of
last delivery of Products 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 available drawings or purchase specifications to assist Customer in
obtaining the products from other sources. The documentation to be supplied
will at do documentation to be supplied as is in existence at that time.
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OKI DATA AMERICAS, INC. - OEM SALES AGREEMENT
B. The minimum order value for Spare Parts 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 I/F Board; and, Part Number 40297801,
M150 Parallel I/F Board.
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.
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
* Confidential treatment requested.
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OKI DATA AMERICAS, INC. - OEM SALES AGREEMENT
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, attached hereto, is hereby incorporated in this Agreement 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.
Signature /s/ Andrew J. Hoffman Signature /s/ John Insogno
--------------------------- ------------------------------
Name Andrew J. Hoffman Name John Insogno
Title SVP, Operations Title Contract Admin
Date 6/5/05 Date 6/5/05
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OKI DATA AMERICAS, INC. - OEM SALES AGREEMENT
EXHIBIT A - PRODUCT DESCRIPTIONS, UNITS PRICES, AND ORDER QUANTITIES
MINIMUM ORDER
DESCRIPTION PART NUMBER QUANTITY UNIT PRICE
----------- ----------- ------------- ----------
PRINTER KITS:
M90 58238101 [*] $[*]
M150P 40248402 [*] $[*]
M150S 40248401 [*] $[*]
M172P 58221401 [*] $[*]
M172S 58221501 [*] $[*]
ML 170lGT 40248403 [*] $[*]
CONSUMABLES:
Ribbon-Black 52109401 [*] $[*]
Ribbon- Purple 52108701 [*] $[*]
STOCK BALANCING PRINTER KITS:
The regular Printer Kits listed in the above table contain and are packaged with
the full compliment and quantity of individual components thereto. To
accommodate Customer's stock balancing requirement, Customer may, not more than
one time per year, issue a Purchase Order to Oki Data for Stock Balancing
Printer Kits containing less than the full compliment and quantity of individual
components (Customer to specify which components are to be removed from the
regular Printer Kit to create the Stock Balancing Printer Kit). Oki Data's
pricing for Stock Balancing Printer Kits will be [*] percent over the unit price
of the applicable regular Printer Kit as indicated in the above table. The
Minimum Order Quantity as indicated in the above table shall also apply for
Stock Balancing Printer Kits.
* Confidential treatment requested.
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