AGREEMENT
This Agreement is made this 29th day of August 2001, by and between USA
TECHNOLOGIES, INC. ("USAT") and UNITED TAXI ALLIANCE ("UTA")
Background
UTA has agreed to purchase from USAT the e-Port terminals described in
Exhibit "A" hereto, and USAT has agreed to sell these e-Port terminals to UTA,
all as more fully described herein.
Agreement
NOW THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The term of this agreement shall commence upon the date of
this agreement and shall continue for a period of three (3) years, expiring on
the anniversary of the third year of the agreement.
2. Unit Purchase Price. UTA will purchase the e-Port terminals from
USAT per the terms outlined in Exhibit A. USAT will use its best efforts to
assist UTA in attempting to locate a third party leasing agent. With the
approved credit of UTA - UTA intends to place e-Port terminals on a 60-month
operating lease, at a target monthly lease price of $25.00 per month. UTA
recognizes that obtaining a leasing source as described above is its sole
responsibility, and shall not affect any of its obligations hereunder. The
acquisition cost and subsequent monthly lease price, for a new lease of an
e-Port terminal, will be reviewed by USAT and UTA, on an annual basis to
determine if any acquisition and /or lease price adjustments are necessary, due
to any cost of goods changes in the e-Port. In the event of any price
adjustment, UTA will always have its unit purchase price set at cost plus 10%.
UTA will bear all costs of delivery and shipment of the e-Ports from USAT to
UTA.
UTA shall purchase from USAT at least 15,000 e-Ports terminals during
the term of this Agreement. UTA represents to USAT that UTA's anticipated
delivery schedule is as follows:
0 to 6 months 2500 e-Ports
6 to 12 months 2500 e-Ports
12 to 18 months 2500 e-Ports
18 to 24 months 2500 e-Ports
24 to 30 months 2500 e-Ports
30 to 36 months 2500 e-Ports
Total 15,000 e-Ports
3. Purchase Order. Each lease by UTA shall be evidenced by a purchase
order to be delivered from UTA to USAT from time to time. Payment from UTA to
USAT shall be due within thirty days after shipment to UTA.
4. Network Services.
A. Once the e-Ports are on-location, USAT and USAT's partners will
provide UTA with the following financial, network and administration services
for the UTA e-Ports:
* Financial Services - Setting up and managing the credit card
processing services of the UTA e-Port transactions and remittance of the money
to UTA on a weekly (EFT/ 24-48 hours) basis.
* Network Services - Remotely tracking the UTA sales information from
the UTA e-Ports and forwarding the sales information on to UTA. Managing and
tracking the advertising and content that is delivered on the e-Port's
interactive display.
* Telecom Services - USAT will source telecom connectivity for all
e-Port devices either through our telecom partner Sprint or one that the USAT
and/or UTA chooses. UTA will bear the cost of said Telecom services.
B. In return for these services, USAT will charge UTA a monthly fee of
$9.50 per e-Port and a credit card transaction processing fee not to exceed 2.9%
per credit card transaction, (transaction processing fee based on the average
credit card transaction for all UTA e-Ports to be $15.00). The flat monthly
service fee and credit card processing fee will be reviewed on an annual basis,
by USAT and UTA, to determine if any increases are necessary.
5. UTA Payment. USAT will pay UTA 25% of the net revenues (gross
revenues less the ad sales agencies' sales commissions) generated from the
e-Port's advertising and content.
6. Confidentiality.
A. Except in connection with this Agreement, UTA shall not, directly or
indirectly, at any time from and after the date hereof, make any use of,
exploit, disclose, or divulge to any other person, firm or corporation, any
trade or business secret, information, documents, know-how, data, software,
method or means, or any other confidential (i.e. not already otherwise
disseminated to or available to the public) information concerning the business
or policies of USAT, or the e-Port terminal, that UTA learned as a result of, in
connection with, through its association with, or through its affiliation with
USAT, whether or not pursuant to this Agreement.
B. All documents, data, know-how, designs, inventions, names, method or
means, materials, software programs, hardware, configurations, information, or
any other materials or data of any kind furnished to UTA by USAT, or developed
by UTA on behalf of USAT or at USAT's direction or for USAT's use, or otherwise
devised, developed, created, or invented in connection with UTA's affiliation
with USAT, are and shall remain the sole and exclusive property of the USAT, and
UTA shall have no right or interest whatsoever thereto, including but not
limited to any copyright or patent interest whatsoever. If USAT requests the
return of any such items (including all copies) at any time whatsoever, UTA
shall immediately deliver the same to USAT.
7. Proprietary Software. UTA acknowledges and agrees that the computer
programs, computer software, specifications, data, images, designs, codes,
configurations, and sounds ("Software") contained in or utilized by the e-Port
terminal are proprietary and confidential to USAT and protected under United
States copyright law. USAT shall retain all right, title and interest in and to
the Software and the e-Port terminal.
8. License. USAT grants to UTA a nonexclusive and nonassignable right
to use the Software solely in connection with the e-Port locations contemplated
by this Agreement. UTA shall not copy, modify, adopt, translate, merge, reverse
engineer, decompile, or disassemble, the Software or the e-Port terminal, or
create any derivative works based on the Software or the e-Port terminal.
9. No Consequential Damages. In no event shall USAT be liable for any
damages whatsoever arising out of the use of the e-Port terminal or the vending
equipment by any person or entity whatsoever including UTA, including without
limitation any direct, incidental, or consequential damages or any damages for
loss of profits, business interruption, loss of information, or any pecuniary
loss, even if USAT has been advised of the possibility of such damages.
10. Notices. Any notices or consents required or permitted by this
Agreement shall be in writing and shall be deemed delivered if delivered in
person or sent by certified mail, postage prepaid, return receipt requested, as
follows, unless such address is changed by written notice hereunder:
If to USAT:
USA Technologies, Inc.
000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attn.
If to UTA:
United Taxi Alliance
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11. Relationship of Parties. USAT on the one hand, and UTA, on the
other, acknowledge and agree that each of them are independent contractors
hereunder, and that nothing contained in this Agreement shall deem to have made
them partners, joint venturers, or otherwise. In this regard, except as
specifically provided otherwise herein, neither of their respective officers,
employees, or agents shall be employees, officers, or agents of the other, and
neither party shall have the power or the authority to obligate or bind the
other.
12. Arbitration. Every claim or dispute arising out of or relating to
the negotiation, performance or non-performance of this Agreement shall be
determined by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association ("AAA"), or as otherwise agreed by the
parties. The arbitration hearing shall be convened and held in the City of
Philadelphia, Pennsylvania. The costs of arbitration are to be shared equally by
the parties. Each party shall be responsible for its own costs and attorney's
fees. Judgment on any award of the arbitrator shall be binding and may be
entered in any court having jurisdiction thereof.
13. Applicable Law. The substantive laws of the Commonwealth of
Pennsylvania (without regard to its conflicts of laws rules) shall govern the
construction of this Agreement and the rights and remedies of the parties
hereto.
14. Binding Effect. This Agreement shall inure to the benefit of, and
shall be binding upon, the respective successors and assigns of the parties
hereto; provided, however, that UTA shall not assign this Agreement in whole or
in part without the prior written consent of USAT. This Agreement constitutes
the entire agreement between the parties hereto, and may only be amended or
modified by a writing signed on behalf of the parties hereto.
15. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
any such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. If any of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
scope, activity or subject, it shall be construed by limiting and reducing it,
so as to be valid and enforceable to the extent compatible with the applicable
law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
USA TECHNOLOGIES, INC. UNITED TAXI ALLIANCE
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxx
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Title: President Title: President
