Exhibit 10.41
Original Copy USAT/RadiSys Confidential
This Development and Manufacturing Agreement (DMA), is made on the date
signed (following section 3.19) between RadiSys Corporation and
USA Technologies, Inc.
000 Xxxxx Xxxxxx
Xxxxx, XX., 00000-0000
XXX
RadiSys Corporation (RadiSys) and USA Technologies, Inc, (USAT) agree to
act within the following terms stated in this DMA, which will remain in
effect until either party terminates the DMA as provided herein,
RECITALS
A. USAT desires that RadiSys: (1) in the Development Stage, develop the
product described in Appendix I (the Product) that USAT plans to sell,
and (2) after completion of the Development Stage, manufacture and
sell the Product that USAT requires, in the Manufacturing Stage.
B. Both parties intend the development and manufacture of the Product to
be an interactive process. Communication and the free flow of
information between the parties will be critical. It is anticipated
that frequent and detailed communication will be required from project
kick-off through end of life of the product. The required
communication shall include technical discussions, design decisions,
and status reporting. The expected communication channels include
email, telephone, video, fax, and teleconferencing. Unless otherwise
tn specified, no in-person meetings between RadiSys and USAT are
required,
C. In addition, both parties anticipate that specifications and schedules
will be amended and updated over time. Thus, the parties intend the
DMA to accommodate such changes and agree to make good faith and
reasonable efforts to resolve any disputes that may arise.
AGREEMENT
1.0 DEVELOPMENT STAGE
Section I of the DMA is effective from date of execution through the first
delivery of a Production Release product.
1.1 Product definition
1.1.1 Specifications. The Product is described in the RadiSys Product
Proposal, as Appendix 1. This Appendix defines the base-line specification
for
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the Product and defines the project scope. Detailed functional and design
specification will be developed as the Product is developed. Changes to the
Specifications may be made as provided herein.
1.1.2 Product Stages. The following product stages will have the following
functionality and levels of verification:
Prototypes: A small number of units (quantity determined in proposal and
documented in Appendix table A3-1) will be assembled and tested by RadiSys.
Basic functionality would be checked before the first prototype is shipped
to a customer, but full functionality would not be verified and very little
stress testing would be carried out. Hardware prototypes may contain blue
wires and may have functional and mechanical limitations but they would be
suitable for software development and initial integration. Prototype units
would not be supported once the next revision of the hardware is available
and would not be covered by the RadiSys warranty.
Limited Production Product: A Limited Production product would be fully
representative of Production Release product, with any exception(s) agreed
upon in advance with USAT. Limited Production units would be suitable for
system testing, regulatory testing or certification, and for sampling to
customers, and would be covered by the standard product warranty, as
provided in Section 3.4.
Production Release Product: These units would meet all Specifications and
would be covered under the product warranty, as provided in Section 3.4.
1.2 Development and Payment Schedule; Purchase Order
1.2.1 Schedules. RadiSys will use commercially reasonable efforts to
develop the Product, and USAT agrees to make payments, both in accordance
with the development and payment schedules set forth in Appendices 3.
Appendix 3 identifies the Pre payment schedules, product pricing, and
service pricing relating to this project. Appendix 4 is the high-level
project schedule which shows project milestones. In addition, it identifies
the parties responsible for performing and approving the completion.
Appendices 5 and 6 provide scheduled lists of items required of both
RadiSys and USAT for project completion. Changes may be made to Development
Schedule as provided herein.
1.2.2 Purchase Order. USAT shall submit an authorized purchase order to
RadiSys for any product or service (including NRE) to be delivered by
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1.3 Communication
RadiSys. Unless USAT uses EDI (Electronic Data Interchange) transactions,
the purchase order shall include at least the following elements to be
accepted as an authorized purchase order:
- Words stating the document will be considered the purchase order
- USAT ship to address
- USAT xxxx to address
- Product or service delivery date Unit purchase price of the product or
service
- Aggregate fixed dollar amount of the purchase order
- Description of what is being purchased (e.g., part numbers, description
of services)
- A statement the purchase order is under the terms of this DMA USAT
signature
1.3 Communication
1.3.1 Customer Information. RadiSys requires technical input from USAT in
order to develop specifications, make technical trade-off decisions, and
evaluate prototypes. USAT agrees to provide the information listed in
Appendix 6 at the time provided therein. In addition, USAT agrees to
provide all other information that RadiSys reasonably requests to perform
its obligations under the DMA. The failure of Customer to timely provide
such information will automatically extend the deadlines for RadiSys
performance in the Development Schedule by the length of Customers delay.
1.3.2 Personnel. RadiSys and USAT agree that each will make reasonably
available one or more design engineers to support such discussions and
answer technical questions in a timely manner.
1.3.3 Status Updates. During development of the Product, RadiSys and USAT
agree to communicate about project status on a weekly basis via telephone
conference. Third parties involved in the project (such as a system
integrator) may be included in these status discussions as well.
1.4 Amendments to Specifications, Development Schedule or Price
1.4.1 General. The parties anticipate that changes may be required to the
Specifications or the Development Schedule, and that these or other changes
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may cause changes in price. Areas that may cause deviations from initial
price estimates include, without limitation, changes in functional
specification; environmental specification; regulatory or certification
requirements; business terms and conditions; and product testing and
validation requirements.
1.4.2 Proposed Changes. Either RadiSys or USAT may propose changes to the
Specifications or the Development Schedule, including changes in price.
Such a proposed amendment is effective only if both parties agree in
writing.
1.4.3 Process. In particular, amendments are to be communicated and
approved as follows:
a. The Program Manager proposing the change notifies the other parties
Program Manager.
b. The RadiSys Program Manager determines whether the requested change
impacts schedule, NRE price, functionality or unit price.
1. If there are schedule or price impacts, the RadiSys Account Manager
provides a written quotation to USAT for the change,
ii. USAT approves the formal quotation change in writing.
c. The RadiSys Program Manager incorporates the change into the project and
notifies the USAT Program Manager. A formal amendment to the Specifications
and/or Development Schedule is written d. RadiSys and USAT sign-off DMA
amendment.
1.5 Subcontracting Rights
1.5.1 Subcontracting. Subject to the terms of Section 2.10.4, RadiSys
retains all manufacturing rights for the Product. RadiSys retains the light
to subcontract the production of the Product to meet USAT'S requirements of
schedule, quality, unique production and price, with prior notification of
USAT.
1.6 Termination and Manufacturing Rights
1.6.1 Right to terminate. During the Development Stage, either RadiSys or
USAT may terminate the DMA upon thirty (30) days written notice, subject to
the terms and conditions in the following sections.
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2.0 MANUFACTURING STAGE
1.6.2 If USAT terminates the DMA hereunder. USAT will pay all fees and
charges owed or accrued as of the effective date of termination and is not
entitled to a refund of any payments made or to any offset for fees and
charges owed or accrued. USAT is entitled to the physical assets, the
ownership and title of which RadiSys intentionally transferred to USAT
pursuant to the DMA, such as Prototypes, Limited Production Release units,
or other deliverables. In addition, RadiSys shall provide to USAT all
then-existing design information. USAT will be charged a fee for this based
on the cost of producing and transferring the documentation. Upon
termination, USAT and RadiSys shall retain all of their respective
intellectual property rights and neither party shall have any further right
whatsoever in such intellectual property of the other except as specified
in this Agreement.
1.6.3 If RadiSys terminates the DMA hereunder. USAT will pay all fees and
charges owed or accrued as of the effective date of termination and is not
entitled to a refund of any payments made or to any offset for fees and
charges owed or accrued. USAT is entitled to all physical assets, the
ownership and title of which RadiSys intentionally transferred to USAT
pursuant to the DMA, such as Prototypes, Limited Production Release units,
or other deliverables. In addition, RadiSys shall provide to USAT all
then-existing design information. USAT will be charged a fee for this based
on the cost of producing and transferring the documentation. Upon
termination, USAT and RadiSys shall retain all of their respective
intellectual property rights and neither party shall have any further night
whatsoever in such intellectual property of the other except as specified
in this Agreement.
2.0 Manufacturing Stage
Section 2 of the DMA is effective only if the Development Stage in Section
I of this DMA is completed, by first del] very of Production Release
Product.
2.1 Design Change
2.1.1 By RadiSys. After a Production Release Product is developed, RadiSys
may make engineering or manufacturing process changes to the product via
RadiSys Engineering Change Order (ECO) process. RadiSys will give USAT
notice and/or approval, through ECO process, of any requested changes.
RadiSys generally identifies and approves multiple manufacturing sources
for individual components, and strives to use the same components on other
products. Selection and usage of multi-sourced components is controlled by
the engineering organization. Replacing a component with an equivalent
component from another
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manufacturer is not considered an engineering or manufacturing change, and
is not tracked.
2.1.2 By USAT. After a Production Release Product is developed, USAT may
request design changes. Costs for changes requested by USAT will be
negotiated and billed as independent engineering projects.
2.2 Quantity
RadiSys agrees to sell to USAT and its approved customers, and USAT agrees
to 17 purchase from RadiSys, required quantities of the Product(s).
2.3 Price
USAT agrees to pay the prices provided in Table A3-2 of Appendix 3 for the
Products.
2.4 Purchase Orders
USAT shall submit an authorized purchase order to RadiSys for any Product
or service to be delivered by RadiSys. Unless USAT uses EDI (Electronic
Data Interchange) transactions, the purchase order shall include at least
the following elements to be accepted as an authorized purchase order:
- Words stating the document is a purchase order
- USAT ship-to address
- USAT xxxx-to address
- Requested Product or service delivery date
- Unit purchase price of the product or service
- Aggregate fixed dollar amount of the purchase order
- Description of what is being purchased (e.g., part numbers,
escription of services)
- A statement the purchase order is subject to the terms of this
- DMA USAT signature
2.5 Production Lead-times
RadiSys agrees to make commercially reasonable efforts to ship product
according to USAT'S request dates. RadiSys has certain requirements that
must be met in order to deliver product within USAT'S request dates. These
dependencies include but are not limited to: accurate forecasts, component
availability, and production capacity, Any delays caused by vendors of
RadiSys will automatically cause corresponding delays in the delivery
schedule. RadiSys will notify USAT as soon as practicable of any delivery
delays.
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2.6 Order Forecasting Requirements
USAT agrees to provide a rolling 12 month forecast of shipment volume
requirements and current inventories, at least monthly, in the format
agreed to by both Parties. Production lead times without a forecast is
dependent on material and labor availability. In this table, the following
terms are used: Non-binding forecast - defined as between 60 calendar days
and 12 months prior to expected shipment date. Quantity on Hand - current
inventory Firm order - with supporting purchase orders, defined as less
than 60 calendar days prior to expected shipment date
2.7 Order Reschedule/Cancellation Requirements
2.7.1 Requests. USAT shall provide either written or EDI notification to
RadiSys of any order rescheduling or cancellation. RadiSys will make
reasonable effort to comply with USAT'S reschedule or cancellation
requests, but is otherwise not obligated to accept such requests. C
2.7.2 For Firm Orders,. Within the firm order time frame a reschedule may
be done at no charge, but only one time per sales order and delivery dates
can be moved no more than 60 days. After one reschedule, there will be 20%
charge for rescheduling of orders. RadiSys reserves the rights to deny
requests for rescheduling product shipment within the firm order time
frame.
2.7.3 Cancellation. If USAT cancels any order, USAT shall pay the following
t:l cancellation charges:
Percentage of Purchase Price to be Number of Calendar Before Scheduled Delivery
Paid Upon Cancellation Written Cancellation Notice is Received
70% 0-45
20% 46-60
0% beyond 60
Upon order cancellation, USAT may also be responsible for unique inventory
committed or inventoried to meet lead-time requirements of forecast or firm
orders.
2.8 Duration The terms and conditions of Section 2 of the DMA will
continue in effect as long as USAT sells the Product, unless
terminated as provided inSection 2.10.
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2.9 Manufacturing and Subcontracting
Subject to the terms of Section 2.10.4, RadiSys shall have all
manufacturing lights for the Product inclusive of the MDB Controller under
the terms of this Agreement. RadiSys retains the right to subcontract the
production of the Product to meet USAT'S requirements of schedule, quality,
unique production and price, with prior notification of USAT. RadiSys shall
manufacture the Product exclusively for USAT.
2.10 End-of-Life
Both Parties understand that the Product contains commercially available
components. From time to time these components may be withdrawn or end of
11 fed by their respective manufacturers. With the exception of Section 2.1
~ 1, Design Changes, RadiSys will use its best effort to notify USAT in the
event of a component EOL. Both Parties will work in good faith to provide
alternate solutions. Solutions could include design changes, alternate
components or component Last Time Buys (LTB's). LTB's will require
financial relief of the component cost by USAT.
2.10.1 Effect. In no event shall RadiSys be deemed in breach of the DMA
because component EOL issues render continued production impracticable or
unprofitable. If no alternative solution in good faith can be worked out,
then RadiSys may terminate the DMA upon 180 days written notice.
2.10.2 RadiSys EOL. RadiSys has the right to discontinue manufacturing the
product at its discretion, with 180 days notice. In that event, USAT will
pay all fees and charges owed or accrued as of the effective date of
termination and is not entitled to a refund of any payments made or to any
offset for fees and charges owed or accrued. In addition, RadiSys shall
provide then-existing design, manufacturing, and test information to USAT.
USAT will be charged a fee for this based on the cost of producing and
transferring the documentation
2.10.3 Termination. Notwithstanding anything else set forth in this DMA,
during the manufacturing stage, either USAT or RadiSys may terminate this
by at least thirty days prior written notice to the other.
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2.10.4 Manufacturing Rights. In the event of (1) a termination by RadiSys
under Section 2.10.3 or an EOL by RadiSys under Section 2. 10.2: or (2) a
breach by RadiSys of any material term of this Agreement where such breach
is not cured within 45 days of receipt of
writtenDOtiCefromUSATofsuchbreach; or (3) the filing of a petition in
bankruptcy by RadiSys, and provided USAT has paid all fees and charges owed
or accrued, RadiSys will grant USAT a non-exclusive, non -transferable,
paid-up license under RadiSys' intellectual property rights in the Product
to manufacture or have manufactured, the Product solely for sale to USAT's
customers.
2.10.5 In the event of termination under Section 2.10.(above), USAT and
RadiSys shall retain all of their respective intellectual property nights
and neither party shall have any further right whatsoever in such
intellectual property of the other except as specified in this Agreement.
3. GENERALThe terms and conditions of Section 3 of the DMA apply to both the
Rights Development Stage and the Manufacturing Stage.
3.1 Rights In Technology
3.1.1 Joint Intellectual Property, Except with respect to the MDB
Controller as provi d in this Section, 3.1.1, RadiSys will be the owner of
all right, title, and interest in and to all inventions, technology, trade
secrets, patents, software, data files, copyrights, and all other
intellectual property rights which arise or are developed by RadiSys under
this DMA. Except with respect to the MDB Controller as provided in this
Section 3,1.1, RadiSys shall be the owner of all tools, drawings,
specifications, models, reports, software, data files,_knowledDe, and all
other materials and information related to the DMA. Except as otherwise
expressly provided by the DMA, nothing shall be construed to constitute a
license of intellectual property rights by RadiSys to USAT or by USAT to
RadiSys. Not withstanding the foregoing, USAT shall own all right title and
interest in and to the MDB Controller as defined in Appendix 6, including
all intellectual Property rights therein, provided however that RadiSys and
USAT shall jointly own all intellectual property rights in and to elements
A and C of the MDB Controller as defined in Appendix 6 (the "Joint
Intellectual Property"). Should either RadiSys or USAT file any patent,
copyright or other intellectual property right application relating to or
in connection with the Joint Intellectual Property for the Joint
Intellectual Property, the other party shall receive at the time of such
filing an assignment of part ownership in the patent, copyright, or other
intellectual property right, as the case may be, as shall be required to
implement the terms and conditions of this DMA with respect to the Joint
Intellectual Property.
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3.1.2 Customer. Appendix 6 identifies intellectual property owned by USAT
or third parties, all right, title, and interest of which is to be retained
by USAT or third parties. During the term of this DMA, USAT grants RadiSys
the royalty free right and license to use the intellectual property
described in Appendix 6 for the manufacture and sale of the Product to USAT
and its approved customers under this DMA.
3.2 Payment Terms Payment terms are net thirty (30) days from the date of
invoice. Interest of 1.5% per month (18% per annum) will be charged on
delinquent accounts. Invoice pricing and USAT payment will be in US
Dollars.
3.3 Title and delivery All shipments by RadiSys are free on board (FOB)
point of shipment. Title to hardware products and risk of loss shall pass
to USAT upon delivery to USAT's designated carrier. Title to software
products remains with RadiSys. It is USAT'S responsibility to insure
product in-transit.
3.4 Product Warranty RadiSys warrants that production hardware products
("Hardware") will be free from defects in materials and Workmanship for two
(2) years following the date of shipment to the original purchaser, unless
a different warranty statement is specified in USAT-specific Extended
Warranty agreements signed by RadiSys. This warranty does not apply to
Prototype products or software products and components. RadiSys' warranty
and disclaimer for its software products and components are addressed in
Section 3.7.
RadiSys also warrants that Products which store, process, provide, and
receive date data (including leap year calculations) will perform these
functions properly in the year 2000 and thereafter, except in the following
conditions: 1) RadiSys PC-compatible products booted from ROM BIOS will not
automatically update the century portion of the hardware clock at the
millennium transition until the system is rebooted; and 2) Multibus
products booted from MSA do not require a reboot but will respond with the
correct time following a Get Time/Date instruction. This definition is
referred to as "Year 2000 Readiness" or "Year 2000 Ready" and includes Leap
Year calculations. This warranty does not cover, and this warranty
specifically excludes Year 2000 Readiness of the Products when used with
other hardware or software products that are not Year 200 Ready.
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This warranty does not cover Hardware that have been damaged by accident,
disaster, abuse, neglect, misuse, improper handling, or incorrect
installation; and does not cover Hardware that have been altered or
repaired by anyone other than RadiSys.
THE ABOVE WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESSED,
IMPLIED, OR STATUTORY; INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, OR ANY WARRANTY
OTHERWISE ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE.
RadiSys NEITHER ASSUMES NOR AUTHOR1ZES ANY PERSON OR ORGANIZATION TO ASSUME
FOR IT ANY OTHER LIABILITY.
If any Hardware furnished by RadiSys fails to conform to the above
warranty, RadiSys' sole and exclusive liability will be, at RadiSys'
option, to repair, replace, of credit USAT'S account with an amount equal
to the price paid for any such Hardware which fails during the applicable
warranty period provided that: (a) USAT promptly notifies RadiSys in
writing that such Hardware is defective and furnishes an explanation of the
deficiency; (b) such Hardware is returned to RadiSys' service facility at
USAT'S risk and expense; and @ RadiSys is satisfied that claimed
deficiencies exist and were not caused by accident, misuse, neglect,
alteration, repair, improper installation, or improper testing. If Hardware
is defective, transportation charges for the return of Hardware to USAT
within the United States will be paid by RadiSys. For all other locations,
the warranty excludes all costs of shipping, customs clearance, and other
related charges. RadiSys will have a reasonable time to make repairs,
replace Hardware, or to credit USAT'S account.
3.5 Time and Materials Consulting
If USAT requests work to be performed outside the scope of a defined
project, RadiSys may, but is not obligated to, perform engineering
consulting on a time and-material basis, at then-current rates. A written
project plan, schedule, and deliverables document as well as billing
requirements (i.e., monthly or based on milestones) shall be prepared to
describe the consulting requirements and signed by both parties.
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3.6 USAT Owned Parts and Tooling/Equipment
3.6.1 Parts. If applicable, component parts owned by USAT, will be
consigned to RadiSys. RadiSys will use these components only for USAT'S
product, and will report inventory levels of the component to USAT on a
quarterly basis. RadiSys will charge USAT a holding fee for the space,
inventory management, and risk associated with the components. This will be
quoted on a case-by-case basis.
3.6.2 Tooling. If applicable, special tooling/equipment owned by USAT, will
be provided to support RadiSys' development and manufacturing efforts on
that USAT'S product. USAT must label such tooling as "Property of USAT" and
must provide an itemized list of provided tooling to the RadiSys Program
Manager. RadiSys will use this tooling only for the purposes of development
and manufacture of the Product. RadiSys will not alter or modify this
tooling without the written permission of USAT. RadiSys will handle such
tooling in a prudent manner, but RadiSys is not responsible for maintenance
or repair of the tooling.
3.6.3 Risk of Loss. USAT is responsible for any damage to such parts or
tooling/equipment described in 3.6. 1 and 3.6.2 and will carry such
insurance as it deems necessary to protect itself for any loss.
3.7 Software License Agreements
USAT's access to, use of, and distribution of products containing, RadiSys'
software are subject to the terms and conditions of the Software License
Agreement set forth in Addendum A.
3.8 Limitation of Liability
In no event shall either party have any liability to the other or any third
party for consequential, incidental, indirect or special damages of any
nature (Including without limitation, lost revenues, lost profits, delay or
loss of use) arising out of, resulting from, or in any way related to any
products of services sold by RadiSys. Damages arising out of or in
connection with the goods or services provided or the non-performance of
RadiSys hereunder shall be limited to actual direct damages, not to exceed
the amounts received by RadiSys for the goods or services purchased by
Limitation, contract, warranty, indemnity, tort (Including negligence)
strict liability or otherwise, even if RadiSys has been advised of the
possibility of such damages.
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3.9 Indenmification
3.9.1 By RadiSys. RadiSys will defend or settle any suit or proceeding
brought against USAT based upon a claim that any Product fumished hereunder
or part thereof, alone and not in combination with any other product,
constitutes an infringement of any United States patent or copyright
provided that: (1) RadiSys is notified promptly in writing of such claim;
(ii) RadiSys controls the defense or settlement of the claim; and (Ili)
USAT cooperates reasonably, and gives all necessary authority, information
and assistance (at RadiSys' expense). RadiSys will pay all damages and
costs finally awarded against USAT, but RadiSys will not be responsible for
any costs, expenses or compromise incurred or made by USAT without RadiSys'
prior written consent. If the use of such Product is permanently enjoined,
RadiSys will, in its sole discretion and at its own expense, procure for
USAT the fight to continue using said Product, replace same with a
non-infringing Product, modify it so that it becomes non-infringing or if
RadiSys is unable to reasonably do any of the above, RadiSys will credit
USAT the sum paid to RadiSys by USAT for the infringing Product less any
depreciation and accept its return. The foregoing requirements of this
Section 3.9.1 shall not apply with respect to the Joint Intellectual
property,
3.9.2 By Customer. RadiSys will not be liable for any costs or damages, and
USAT will indemnify, defend and hold RadiSys harmless from any expenses,
damages, costs or losses resulting from any suit or proceeding based upon a
claim arising, from; (a) RadiSys compliance with USAT'S designs,
specifications or instructions; (b) modification of the Product by USAT
after delivery by RadiSys; @ the use, marketing, distribution, or sale of
any Product or any part thereof furnished hereunder in combination with any
other product, including, but not limited to, the use, marketing,
distribution, or sale of the Downstream Product; or (d) the direct or
contributory infringement of any process patent using any Product furnished
hereunder.
330 Product support, service and returns
In the event a return of a Product to RadiSys is necessary, whether for
warranty or otherwise, USAT shall obtain a returned material authorization
(RMA) number from RadiSys Customer Service. USAT shall include
documentation as to original purchase order number, serial number and
invoice number with all returned product shipments. Any product that is
received at RadiSys without identification of the RMA number, original
purchase order number, serial number and invoice number will be returned to
USAT at USAT'S expense. Cost and
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services will have normal payment ten-ns. Such product, returned within the
warranty period, is deemed to be a warranty product and will be processed
within the warranty cycle.
3.11 Confidentiality
Except as otherwise permitted or contemplated by this DMA,_each party
agrees not to disclose to third parties or use for any purpose other than
for proper fulfillment of this DMA any technical or commercial information
received from the other party, in whatever form, under or in connection
with this DMA without prior written permission of the disclosing party,
except information which: was in the possession of the receiving party
prior to disclosure hereunder as proven by written records of the receiving
part; or
was in the public domain at the time of disclosure or late became part of
the public domain without breach of the confidentiality obligations herein
contained; or
was disclosed by a third party without breach of any obligation of
confidentiality owed to the disclosing party; or
was independently developed, as proven by written records of the receiving
party or by personnel of the receiving party having no access to the
information.- -
3.12 Force Majeure
RadiSys will not be liable for any failure to perform due to unforeseen
circumstances Or causes beyond RadiSys' reasonable control, including, but
not limited to, acts of God, war riot, embargoes, acts of civil or military
authorities, [note words deleted] fire, flood, accident, strikes, inability
to secure transportation, facilities, fuel energy, labor or materials. In
the event of force ma . jeure, RadiSys' time for delivery or other
performance will be extended for a period equal to the duration of the
delay caused thereby.
3.13 Survival
In addition to those terms hereof that expressly refer to the period
following termination of this DMA, the following sections of this DMA
survive expiration or termination of the DMA: Product Warranty (Section
3.4), Software License Agreements (Section 3.7), Confidentiality (Section
3.11), Joint Intellectual Property (Section 3.1.1), Limitation of Liability
(Section 3,8), and Indemnification (Section 3.9).
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3.14 Entire Agreement; Prevailing Terms
This DMA, including the Appendices incorporated herein, is the entire
agreement between the parties and supersedes all prior or contemporaneous
agreements between the parties with respect to the subject matter hereof.
In the event of conflict between the standard terms and conditions of
RadiSys or USAT (whether in a purchase order or order acknowledgment) and
this DMA, the provisions of this DMA shall prevail. This DMA may not be
modified or amended except in writing signed by both parties.
3.15 No Assignment
Neither party shall assign or transfer the DMA, or any interest therein,
without the other party's written consent (which will not be unreasonably
withheld).
3.16 Severability
If any provision of the DMA becomes unenforceable, then such provision
shall be enforceable to the maximum extent permissible, and the remaining
provisions of the DMA will remain in full force and effect.
3.17 Construction
The DMA is the result of negotiation between sophisticated parties and no
provision hereof shall be construed against a party solely because that
party was ible for drafting the provision in question. respons
3.18 No Other Relationship
Nothing herein contained shall be deemed to create an agency or partnership
relationship between the parties hereto. Neither party shall be empowered
to create obligations of the other party.
3.19 Disputes and Resolutions
Good Faith Efforts. It is agreed that USAT and RadiSys will use good faith
efforts to resolve any disagreements or disputes within USAT and RadiSys
pro.ject teams. In the event that a disagreement or dispute cannot be
resolved by the prq'ect team, it is agreed that the respective companies'
executive management will resolve the conflict.
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3.19.2 Governing Law. The DMA will be interpreted and governed according to
the laws of the State of New York exclusive of choice of law rules.
----------------------------- ------------------------------
(Name) (Date) (Name) (DAte)
(Title) (Title)
RadiSys Corporation USA Technologies, Inc.
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Addendum A: Software license agreements
Includes a license to RadiSys provided code (computing BIOS, device drivers
from RadiSys or 3rd party developers), referred to as the "Software".
Does not include any other 3rd party software. Operating system will be
Windows CE. License cost to be a pass through if that is determined to be
the best louistical solution.
Software License
Provided USAT shall have paid RadiSys all NRE charges in full, all
Software, including any subsequent updates and any part thereof is
furnished to USAT under a non-exclusive, non -transferable, paid-up and
irrevocable (except in the event of a breach of the terms of this license)
license to the Software in object code format solely for USAT's own
internal business use on the Product on which the Software is first
installed. Title to and ownership of the Software and any copies thereof in
whole or in part and all applicable intellectual property rights therein,
including but not limited to patents, copyrights and trade secrets shall
remain with RadiSys or its licensors. USAT shall not reverse compile, or
reverse assemble the software, in whole or in part.
USAT shall have the right to sublicense Software to its customers in
accordance with this Software License. The form of sublicense shall at a
minimum provide for the following: be executed in writing; title to
Software and all copies shall remain with RadiSys or its Licensors; limit
use of the Software on the single Product on which the Software is first
installed; prohibit further sublicensing by the end user customer; include
a disclaimer as to the implied warranties of merchantability and fitness
for a particular purpose; include a disclaimer as to all special, indirect,
incidental or consequential damages; and grant RadiSys the right to enforce
such sublicense directly against the sublicensee of the Software.
USAT shall not remove or obscure any RadiSys trademark, tradename,
copyright or any other proprietary notice of RadiSys affixed to or embedded
in the Software. USAT shall not make copies of Software to supply to its
customers, but shall only furnish to its customers copies of Software as
supplied to USAT by RadiSys. USAT shall not provide any Software to its
customers without first obtaining an executed sublicense agreement from
that customer. Upon RadiSys' request USAT shall provide RadiSys with copies
of each sublicense entered into between
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USAT and its customers for Software. USAT agrees to cooperate with RadiSys
in any proceedings against any customer for breach or violation of any
terms and conditions in an agreement under which such customer has been
sublicensed or provided with Software.
In any of the events enumerated in Section 2.10.4, and provided USAT shall
have paid RadiSys all NRE charges under the Agreement, RadiSys grants USAT
a personal, non-exclusive, non-transferable, paid-up and irrevocable
(except in the case of a breach of this license) license to the source code
to the Software to use, modify and create derivative works of the Software
and to distribute such derivative works in object code format to USAT's
customers for use In conjunction with the Product manufactured pursuant to
the manufacturing rights granted to USAT by RadiSys in Section 2.10.4.
Notwith standing the Above Radisys abligation to supply device code to USAT
for third party software shall be sigtech to USA Tech obtaining any
necessary prerequisite concents from the third party licenses.
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Appendices
Appendix 1: USAT ePORT Next Generation Functional Specification. Separate
document developed under LOL
Appendix 2- Not Applicable
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Appendix 3: NRE payment schedule, Product and Service Pricing
Table A3-1 to be completed in detail after proposal is signed.
Expected
Table A3-1: NRE Payment Milestones Date* NRE Due
113 of NRE invoiced upon Agreement Execution 6/23/00 $192,000.00
[3] Prototype units delivered to USAT 9/4/00 $191,500.00
Final Prototype changes submitted by USAT 9/11/00 $
Production Release 10/31/00 $191,500.00
Additional prototype units beyond those identified in this table are not
included in the NRE payment.
* Referenced dates should be viewed as target dates, changes in the
scope of work, development effort, and/or dependencies upon third
parties, normally outside of RadiSys control, could impact these
dates.
Table A3-2:
Product Pricing Unit price by annual delivery quantity
Description Additional Limited 1-249 250-4999 5000- 10000 up
Proto's Production 9999
ePort next generation $xxxx $ xxxx $ xxxx $xxxx $ xxxx $ 665.00*
* Both Parties agree that for purposes of this Agreement, the $665.00
unit price should be viewed as a not to exceed unit price, for period
of 12 months from the date of execution. RadiSys will use its best
effort to reduce this unit price during the development stage and
prior to release to manufacturing.
Once developed, production pricing will be reviewed on a quarterly basis with a
focus on commodity cost and price performance. It is both Parties intent to
continually reduce the price of the e-Port product to allow greater market
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acceptance and penetration.
RadiSys represents prices offered will not exceed those offered to any other
customer for products substantially similar to the Products sold to USAT
hereunder, where such customer is purchasing such products in like quantities
and under similar terms and conditions.
TableA3-3 to be completed at milestone C2
Table A3-3: Manufacturing and Service Option Pricing
Description Price
Out of warranty repair per board $TBD after design completion
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Appendix 4: Project Schedule and Milestones
--------------------------------------------------------------------------------------------------------
Table A4-1: Project Schedule
--------------------------------------------------------------------------------------------------------
Milestone and description Date Approval/Method
------------ ------------------------------------------------------ ------------- ----------------------
NRE received by RadiSys 5/25/00
------------ ------------------------------------------------------ ------------- ----------------------
Purchase Order for 5/25/00 Written sign-off on
Design specification delivered specification
------------ ------------------------------------------------------ ------------- ----------------------
Detailed Design and Layout Complete 8/14/00
Final schedule and pnicing negotiated
------------ ------------------------------------------------------ ------------- ----------------------
First prototype systems delivered Q units). 9/4/00
------------ ------------------------------------------------------ ------------- ----------------------
Final Prototype changes submitted by 9/11/00
USAT; Schedule re-synchronization
based on changes
------------ ------------------------------------------------------ ------------- ----------------------
Pilot units delivered 10/31/00
Production units delivered TBD
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Appendix 5.- RadiSys Defiverables to USAT
Table A5-1: Specs and Documentation
Item Date
1 5/25/00 Design Specification
2 8/8/00 Scbematics for Design Review
3 10/2/00 Design Validation (including EMT) plan, for review and approval
4 10/31/00 Design Validation Results, for review and approval
5 10/31/00 Device Drivers/ Source Code
6 10/31/00 Embedded Code/ Source Code
Table AS-2: Development Deliverables
Item Date Item
1 9/4/00 (3) Prototype Units
2 10/31/00 (3) Limited Production Product Units
3 As part of first production (4) Production Release Product Units
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Appendix 6: Intellectual Property
The following table outlines the ownership of the identified intellectual
property
--------------------------------- ---------------------------------------------------------
Owner Description
--------------------------------- ---------------------------------------------------------
USAT EPort application code (a)
--------------------------------- ---------------------------------------------------------
RadiSys StrongARM "core" design
--------------------------------- ---------------------------------------------------------
USAT and RadiSys* MDB Controller**
--------------------------------- ---------------------------------------------------------
Microsoft Operating system - implied license to use agreement)
--------------------------------- ---------------------------------------------------------
*Reference Section 3.1.1 "Joint Intellectual Property
** For Purposes of this Agreement, the term MDB Controller shall mean the
combination of :
a) a microprocessor (or micro-controller) that communicates with a host system
via a Serial bus, including software code (source & object), that runs on
this microcontroller, and software code (source and object) that are MDB
devicednivers that interact with the operating system.
b) MDB (Multi Drop Bus) interface for senial communications within a vending
machine.
c) A magnetic stripe reader interface A touch-screen controller interface
(Analog inputs and Analog outputs)
An 12C bus
Digital inputs and Digital outputs (DI/DO)
Circuits for an LCD display including voltage generation for back light and
contrast A Temperature sensor
A motion sensor interface
d) A power supply circuit
e) As yet undefined interface from the DI/DO to motors, solenoids, switches,
etc. (in a vending mach ine, or to various office products, including
copiers, fax, personal computers, printers, etc.
(a) e-PORT application code is that code that resides on the RadiSys "core"
computing platform that performs e-commerce transactions, ad displays, and may
include vending machine control.
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Appendix 7: Attachment of USAT ePORT Next Generation Statement of Work
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