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EXHIBIT 10.1
@XXX.XXX LICENSE AGREEMENT
This License Agreement is entered into by and among @xxx.xxx, Inc., a
Delaware corporation ("@pos"), with offices located at 0000 Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxxxxxxxxx 00000, and Xxxxx Xxxxx Data Collection, Inc., a Delaware
Corporation, doing business as Hand Held Products, with offices located at 0000
Xxxxxx Xxxx, Xxxxxxxxxxx Xxxxx, Xxx Xxxx 00000, and any subsidiaries ("HHP"),
effective as of December 29, 2000 (the "Effective Date").
BACKGROUND
A. @pos and HHP entered into a Manufacturing License and Distribution
Agreement dated January 11, 2000 (the "Existing Agreement"), pursuant to which
@pos granted WA rights to manufacture and distribute certain products developed
by @pos. A true and accurate copy of the Existing Agreement is attached hereto
as Exhibit E.
B. @pos and HHP have determined that it is in their mutual interests to
terminate the Existing Agreement and to enter into this Agreement to replace the
Existing Agreement.
AGREEMENT
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
1.1 "@pos Products" means the @pos products known as the "1100", the
"1500" and the "3100" as defined by the functional specifications for such
products in the documentation included in the Deliverables as described in
Exhibit A.
1.2 "Affiliate" means any person or entity that controls, is controlled
by, or is under common control with a party, by virtue of ownership of more than
fifty percent of the outstanding voting securities.
1.3 "Deliverables" means the items to be delivered by @pos to HHP, as
described in Exhibit A.
1.4 "Existing Agreement" has the meaning defined in the above
Background.
1.5 "Financial Transaction Products" means products whose primary
function is to complete a financial transaction at a point of transfer between a
seller and a buyer.
1.6 "Firmware" means the portions of the Technology consisting of
software and algorithms that are embedded in integrated circuits incorporated in
the @pos Products.
1.7 "Proprietary Rights" means all patent, copyright, trade secret,
know-how, mask work, and any other intellectual property rights, throughout the
world, but excluding trademark rights.
1.8 "Requirements" means the specifications and/or other requirements
applicable to the Deliverables as described in Exhibit A.
1.9 "Schedule" means the schedule for the delivery of Deliverables under
this Agreement, as set forth in Exhibit A.
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1.10 "Software" means the @pos software products known as "SDK" and
"Hide & Seek", and all modifications, improvements, and enhancements thereto
developed by POS on or before the date of delivery of the last Deliverable under
this Agreement (or, if earlier, on or before the date of termination of this
Agreement).
1.11 "Technology" means all specifications, designs, techniques,
methods, processes, know-how, computer programs, Firmware, and algorithms, that
are protected or protectable under any Proprietary Rights, that are used,
embodied or incorporated in the @pos Products, and all modifications,
improvements, and enhancements thereto developed by @pos on or before the date
of delivery of the last Deliverable under this Agreement (or, if earlier, the
date of termination of this Agreement). As used in this Agreement, the term
"Technology" does not include the Software, as defined in this Agreement.
1.12 "Transition Obligations" means, collectively, (i) the obligation of
@pos to deliver the Deliverables, and (ii) the obligation of @pos to perform the
training and software support services described in Section 4 of this Agreement.
1.13 "Transition Period" means the time period between the Effective
Date of this Agreement and the completion of the delivery and acceptance of the
Deliverables.
2. SETTLEMENT OF AMOUNTS OWED UNDER EXISTING AGREEMENT; TERMINATION OF EXISTING
AGREEMENT.
2.1 Payment of Net Amount. The parties acknowledge that @pos has claimed
that HHP owes certain royalty payments to @pos under the Existing Agreement, and
that HHP has claimed that @pos owes HHP payments pursuant to certain warranty
claims under the Existing Agreement. Upon signature of this Agreement, HHP
agrees to pay to @pos the sum of $424,821.10, which the parties agree is the
amount HHP owes @pos pursuant to the Existing Agreement. Upon signature of this
Agreement, @pos agrees to pay to HHP the sum of $448,521.16, which the parties
agree is the amount @pos owes HHP pursuant to the Existing Agreement. The net
amount of $23,700.06 (the "Settlement Amount") shall be transferred from @pos to
HHP within ten (10) business days from the Effective Date of this Agreement.
Each party irrevocably waives, and agrees never to assert, any claim that the
Settlement Amount is not the correct amount or that such party is owed
additional compensation under the Existing Agreement.
2.2 Termination of Existing Agreement; Release. The parties agree that
the Existing Agreement is hereby terminated and shall be of no further force or
effect. The parties acknowledge and agree that no party to this Agreement shall
have any rights, obligations, duties, or liabilities of any nature under the
Existing Agreement, even pursuant to provisions of the Existing Agreement that
the Existing Agreement states shall survive termination of the Existing
Agreement, except to the extent that provisions of the Existing Agreement are
specifically referred to in this Agreement.
2.3 Release. Conditioned upon payment of the Settlement Amount set forth
in Section 2.1 herein, each party to this Agreement (a "Releasing Party"), for
itself and its successors and assigns, hereby releases, discharges and acquits
the other parties, and their directors, officers, agents, insurers, successors
and assigns (collectively, the "Released Parties"), of and from any and all
claims, demands, damages, rights and causes of action, whether known or unknown,
that the Releasing Party has or may have against the Released Parties that are
directly or indirectly related to the Existing Agreement. The above releases
apply to, but are not limited to, any and all claims based upon contract,
warranty, tort, or federal, state or local statutes or regulations. With respect
to the above releases, the parties expressly waive all rights and remedies under
any statutes providing that a general release does not extend to
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claims which the creditor does not know or suspect to exist in his favor at the
time of executing the release, which, if known by him, must have materially
affected his settlement with the debtor.
3. DELIVERY OF DELIVERABLES.
3.1 Delivery of Deliverables. @pos will use its best efforts to deliver
the Deliverables to HHP in accordance with the Schedule. HHP will provide such
information and reasonable assistance to @pos as @pos may request from time to
time to enable @pos to prepare and deliver the Deliverables. @pos agrees to
reimburse HHP for out of pocket expenses due to incomplete documentation of the
Software in the total agreed upon amount of $50,000. HHP hereby agrees to
provide @pos with copies of all documentation created by HHP under this
paragraph 3.1.
3.2 Method of Delivery. Software and Firmware Deliverables shall be
delivered by @pos to HHP in a form that will permit HHP to duplicate such
Software, such as on CD, disks, or by download via the Internet. Other
Deliverables shall be delivered to HHP according to HHP's reasonable
instructions. Deliverables shall be labeled, organized, and complete. @pos
agrees to provide assistance to HHP in replacing the Software and Firmware
Deliverables in the event that the Software and Firmware Deliverables are lost
or destroyed.
3.3 Testing and Inspection. HHP will inspect and test each Deliverable
within fifteen (15) days after receipt in order to verify that the Deliverable
conforms to the Requirements applicable to that Deliverable. If the Deliverable
conforms to the Requirements, HHP must accept the Deliverable. If the
Deliverable does not conform to the Requirements, HHP shall notify @pos of the
failure within the inspection and test period, which notice shall include
reasonably specific and detailed information as to the nature of the problems.
@pos will use its best efforts to correct any such problems and re-deliver the
Deliverable to HHP within fifteen (15) days for inspection and testing under
the terms of this Section. For the purpose of commencing the 15 day period
during which HHP must inspect and test each Deliverable, the 15 day period will
apply to each Deliverable by Payment Levels 1, 2, 3 and 4 as identified in
Exhibit A and the inspection and testing period for successive Deliverables will
not begin until the delivery and acceptance of the Deliverables for the previous
Payment Level. Subject to the rights of the parties to terminate this Agreement
pursuant to the terms of Section 6 below, this procedure will be repeated until
the Deliverable has been accepted by HHP. If HHP fails to notify @pos of its
disapproval of any Deliverable (or any corrected Deliverable) within the
inspection and test period provided above, such Deliverable (or corrected
Deliverable) will be deemed to have been accepted by HHP.
3.4 Project Leaders; Status Meetings. Each party shall appoint a project
manager, who shall be such party's primary contact for matters relating to this
Agreement. Each party agrees that its project manager will be made available to
meet with the other party's project manager, at all reasonable times, to discuss
and report on the status and progress of such party's performance of this
Agreement. Initially, Xxxxx Xxxxxxxx shall act as project manager for HHP and
Xxxxx Xxx shall act as project manager for @pos. Each party may change the
project manager by providing written notice to the other party. Initially, the
project managers will meet at least one (1) time per week, preferably on
Tuesdays, until such time as HHP and @pos mutually agree to a revised meeting
schedule.
3.5 Delivery of Previous Versions. Upon the request of HHP at any time
and subject to all License terms and conditions of this Agreement, @pos agrees
to deliver to HHP any versions of the Software or Firmware created by @pos prior
to the versions constituting the Deliverables under this Agreement, to the
extent such prior versions are in the possession of @pos and can be delivered
without undue effort or
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expense.
4. TRAINING & SUPPORT.
4.1 Training. @pos shall make @pos representatives who are experts in
the Technology, Software and Firmware available to HHP, for a period of two (2)
weeks, to provide training to HHP's personnel and to the personnel of one (1)
third-party software consultant to HHP, in the design and use of the Firmware
and Software. Such training shall be conducted at a facility to be mutually
agreed upon, during normal business days and hours, from January 22, 2001
through February 2, 2001, unless the parties mutually agree on a different
two-week period. Travel and other out-of-pocket expenses shall be borne by each
party.
4.2. Software and Firmware Support. Upon completion of the training
described in Section 4.1, @pos shall provide HHP with up to two hundred (200)
hours of technical support services relating to the Firmware and Software,
without charge to HHP, during @pos' normal business hours, until February 2,
2003. Such support services shall consist of, from time to time, telephone
support and/or in-person support services at a facility to be mutually agreed
upon by the parties. Any additional Firmware or Software support services shall
be provided by @pos on such terms and conditions, and for such compensation, as
the parties may agree upon.
5. COMPENSATION. As compensation for the grant of the Licenses under this
Agreement, HHP will pay @pos the amounts shown on Exhibit B at the times
specified in Exhibit B. If requested by HHP, @pos will provide invoices to HHP
for such amounts, for HHP's records. Late payments shall be subject to a finance
charge of 1.5% per month until paid. In addition, if HHP fails to pay any amount
when due, @pos shall be entitled to suspend its performance of Transition
Obligations under this Agreement until the amount is paid, and each date in the
Schedule shall be extended for the duration of such failure to pay. All payments
are to be made by HHP within 10 days of the time specified in Exhibit B.
6. TERMINATION OF AGREEMENT; EFFECT OF TERMINATION.
6.1 Termination. This Agreement may be terminated only as follows:
(a) Termination for Failure to Deliver and Accept Deliverables.
If all of the Deliverables have not been delivered to HHP and/or not been
accepted by HHP by three (3) months after the Effective Date of this Agreement,
either HHP or @pos shall be entitled to initiate an arbitration action pursuant
to the provisions of Section 14.8(b), in which the arbitrator shall decide all
issues relating to delivery and acceptance of the Deliverables pursuant to
Section 3.3 of this Agreement. If, within thirty (30) days after the rendering
of the decision by the arbitrator, all of the Deliverables have still not been
delivered to HHP and accepted by HHP as may be required by the arbitrator's
decision, then HHP shall be entitled to terminate this Agreement, effective upon
written notice to @pos.
(b) Termination for Failure to Make Payment. In the event of
non-payment by HHP pursuant to Section 3.3 and upon completion of an arbitration
proceeding pursuant to Section 6.1(a) herein, @pos shall be entitled to
terminate this Agreement upon notice to HHP if HHP fails to make a payment to
@pos under this Agreement within thirty (30) days after notice from @pos that
the payment is delinquent.
(c) Termination for Breach. For material breaches of this
Agreement other than those described in paragraphs (a) and (b) above, either
party shall be entitled to terminate this Agreement upon written notice to the
other party and such breach has remained uncured for a period of forty-five (45)
days after notice of such breach from such party.
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(d) Insolvency, Etc. @pos may terminate this Agreement only
during the Transition Period upon notice to HHP if (i) a receiver is appointed
for HHP or its property; (ii) HHP becomes insolvent or unable to pay its debts
as they mature in the ordinary course of business or makes an assignment for the
benefit of its creditors; (iii) any proceedings are commenced against HHP under
any bankruptcy, insolvency or debtor's relief law and such proceedings are not
vacated or set aside within sixty (60) days from the date of commencement
thereof.
6.2 Consequences of Termination.
(a) Termination Under Section 6.1(a). If this Agreement is
terminated pursuant to Section 6.1(a), (i) HHP shall not be obligated to pay any
additional amounts to @pos under Section 5 of this Agreement, (ii) the Licenses
granted by @pos to HHP pursuant to this Agreement shall terminate, (iii) @pos
shall not be required to perform any remaining Transition Obligations, (iv) HHP
shall promptly return to @pos the Technology, Software, Firmware and
Deliverables and all copies, records and documents derived therefrom to @pos,
and (v) @pos will refund all amounts paid by HHP pursuant to Section 5 of this
Agreement on condition that HHP is not in breach of any arbitrators decision or
other terms of this Agreement within thirty (30) days of written notice by HHP.
(b) Termination For Other Reasons, If is Agreement is terminated
by either party for any reason other than pursuant to Section 6.1(a) during the
Transition Period, then (i) the Licenses granted by @pos to HHP pursuant to this
Agreement shall immediately terminate, (ii) @pos shall not be required to
perform any remaining Transition Obligations, and (iii) HHP shall promptly
return to @pos all Deliverables delivered by @pos to HHP pursuant to this
Agreement, and any other records and documents that embody, incorporate or
include the Technology, Software, or Deliverables, and all copies thereof.
(c) Survival. The provisions of the following sections of this
Agreement shall survive any termination of this Agreement: Section 2
("Settlement of Amounts Owed Under Existing Agreement; Termination of Existing
Agreement"), Section 7 ("Ownership of Proprietary Rights"), Section 10.5
("Disclaimer of Other Warranties"), Section 11 ("Indemnification"), Section 12
("Confidential Information"), Section 13 ("Limitation of Liability"), and
Section 14 ("General Provisions").
(d) Other Remedies. This provision shall not be construed as
limiting any other remedies of either party relating to termination of the
Agreement.
7. OWNERSHIP OF PROPRIETARY RIGHTS.
7.1 @pos Ownership. Subject only to the Licenses granted to HHP under
this Agreement, and subject to the provisions of the remainder of this Section
7, as between the parties, @pos shall own all right, title and interest in and
to the Technology, the Software and the Deliverables, and any modifications,
improvements, updates or revisions to any of the Technology, Software, or
Deliverables that are embodied or included in the Deliverables delivered to HHP
pursuant to this Agreement or that are otherwise created by @pos, and all
Proprietary Rights relating to any of the above.
7.2 Joint Ownership. The parties acknowledge and agree that @pos and HHP
shall jointly own the following, and all Proprietary Rights thereto: (i) the
technology described on Exhibit C attached to this Agreement, and (ii) any
modifications, improvements, updates or revisions to any of the Technology,
Software, or Deliverables, that are jointly developed by @pos and HHP and that
are embodied or included in the Deliverables delivered to HHP pursuant to this
Agreement (collectively, the "Jointly Owned Technology").
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(a) Use of Jointly Owned Technology. @pos and HHP each
acknowledge and agree that the other party is free to use, exploit,
commercialize, and dispose of such Jointly Owned Technology without compensating
or accounting to the other party in any way. Any patents applied for or issued
relating to Jointly Owned Technology shall be applied for and issued in the
names of both @pos and HHP. The parties shall share equally in the costs and
expenses of prosecuting and maintaining any such jointly owned patents.
(b) Jointly Owned Concepts. The parties agree that, where Jointly
Owned Technology consists of a concept or idea but not a reduction to practice
of the concept or idea, both parties shall be free to independently create their
own reductions to practice of such concept or idea and the creating party shall
exclusively own any such reductions to practice that it has created or does
create. In that event, neither party shall have the right to make, use or sell
products that utilize the other party's reductions to practice, but a party
shall remain free to make, use and sell products that utilize its own
independent reductions to practice of the underlying jointly owned concept or
idea. Each party agrees never to claim or assert that the making, use or sale of
products by the other party, based upon such other party's independent
reductions to practice of jointly owned concepts, infringes any patents held by
such party on its own reductions to practice of such jointly owned concepts.
7.3 Improvements Solely by One Party During Transition Period. The
parties acknowledge and agree that any modifications, improvements, updates or
revisions to any of the Technology, Software, or Deliverables, that are embodied
or included in the Deliverables delivered to CEP pursuant to this Agreement and
that are created solely by @pos during the performance of this Agreement , and
all Proprietary Rights thereto, shall be owned exclusively by @pos, but are
included within the definitions of those terms in this Agreement, and are
therefore included in the matters licensed to HHP under Section 8 of this
Agreement. The parties acknowledge and agree that any modifications,
improvements, updates or revisions to any of the Technology, Software, or
Deliverables, created solely by HHP during the performance of this Agreement,
and all Proprietary Rights thereto, shall be owned exclusively by HHP;
provided, however, that ownership of the original Technology, Software, and
Deliverables shall at all times remain with @pos.
7.4 Improvements After Transition Period. The parties acknowledge and
agree that any modifications, improvements, updates or revisions to any of the
Technology, Software, or Deliverables created solely by one party after the
delivery of the final Deliverable under this Agreement (or after termination of
this Agreement), and all Proprietary Rights thereto, shall be owned exclusively
by the creating party. It is understood and agreed that, notwithstanding HHP's
ownership of modifications, improvements, updates or revisions it may create,
ownership of the original Technology, Software, and Deliverables shall at all
times remain with @pos.
7.5 Assistance. Each party agrees that it will, upon request of the
other party (but at the expense of the other party), take all actions and
execute all assignments, declarations and other documents that may be reasonably
necessary in order to permit the other party to obtain, perfect, and maintain
its Proprietary Rights in and to the items that are owned or jointly owned by
such party pursuant to the terms and conditions of this Section 7.
8. LICENSES.
8.1 Licenses. Subject to the restrictions in this Section 8 and the
other terms and conditions of this Agreement, @pos hereby grants HHP the
following non-exclusive, worldwide, perpetual licenses (together, the
"Licenses"), which shall be royalty-free subject only to the payments required
to be made pursuant to
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Section 5 and the payments that may be required to be made pursuant to Section
8.6:
(a) a license, under @pos' Proprietary Rights to the Technology,
to develop, make, have made, use, sell and maintain Financial Transaction
Products that utilize, incorporate, or are based upon the Technology, in whole
or in part, either alone or combined with other technology (the "Hardware
License");
(b) a license, under @pos' Proprietary Rights to the Software, to
use, copy and distribute the Software, and to modify and prepare derivative
works based upon the Software, in whole or in part, either alone or combined
with other technology (the "Software License");
(c) a license, under @pos' Proprietary Rights to the
Deliverables, to use the Deliverables in the exercise of the rights granted in
paragraphs (a) and (b) above, including the right to distribute Financial
Transaction Products by means of sublicenses as set forth in Section 8.5 herein.
8.2 License Limited to Financial Transaction Products. It is
specifically understood and agreed that the Hardware License does not include,
and HHP shall not have the right, to develop, make, have made, use, sell or
maintain products that utilize, incorporate, or are based upon the Technology,
in whole or in part, that are not Financial Transaction Products. @pos hereby
agrees to license to HHP in the future and to negotiate in good faith and on
reasonable terms the Technology for products that utilize, incorporate, or are
based upon the Technology, in whole or in part, that are not Financial
Transaction Products at terms that are no less favorable than @pos has licensed
the Technology to third parties.
8.3 Source Code Restrictions. Except for the SDK Software, HHP may
distribute Software only in object code form, and HHP shall not be entitled to
distribute, publish, or otherwise disclose the source code form of the Software,
except that HHP may distribute the source code when the end user requires the
source code to enable use of the Financial Transaction Products. In such case,
HHP shall enter into a license, confidentiality and non-disclosure agreement
with the end user to prohibit the further distribution, publication, or other
disclosure of the source code. HHP may distribute the SDK Software in either
object code or source code form.
8.4 Assignment and Transfer of Licenses. HHP shall not be entitled to
assign or transfer the Licenses, or any of its rights under the Licenses, except
in connection with an assignment of this Agreement specifically permitted under
the terms of Section 14.2 below.
8.5 Sublicensing. HHP shall be entitled to grant sublicenses under the
Licenses only as follows:
(a) To Manufacturers. HHP shall be entitled to grant sublicenses
under the Hardware License and the Software License to third party manufacturers
only to the extent necessary to enable them to manufacture Financial Transaction
Products for HHP, provided the third party manufacturer has signed an agreement
to maintain the confidentiality of the Technology.
(b) To End-Users & Resellers. HHP shall be entitled to grant to
end-users and resellers sublicenses to use the Software, as incorporated in
HHP's Financial Transaction Products, provided (i) only object code is provided
to the end-user and reseller (except that SDK Software source code may be
provided to the end-user), and (ii) the sublicense agreement prohibits the
end-user from copying (except for archival or backup purposes) or distributing
the Software and prohibits all end-users and resellers from reverse engineering
or decompiling the Software (except SDK Software).
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(c) Implied Sublicenses. Any sale of a Financial Transaction
Product by HHP that incorporates Firmware includes an implied license to the
end-user to use the software embodied in such Firmware in conjunction with the
end-user's use of such Financial Transaction Products.
8.6 Limitations on Distribution of Firmware & Software. HHP may
distribute the Software and Firmware only along with or incorporated into
Financial Transaction Products, and HHP shall not be entitled to distribute
Software or Firmware independently of hardware products. Further, HHP agrees, as
both a covenant and as a condition to the Licenses, that unless @pos and HHP
have entered into a separate written agreement specifying the royalties to be
paid by HHP to @pos for such distribution, HHP will not distribute any of the
Software or Firmware, or any portions thereof or derivative works based thereon,
along with or incorporated into any hardware products except (i) the @pos
Products, or (ii) Financial Transaction Products created by HHP. In the event
HHP wishes to distribute the Software or Firmware along with or incorporated
into Financial Transaction Products other than those described above, HHP will
inform @pos and the parties shall negotiate in good faith to agree upon the
royalties to be paid by HHP and the terms and conditions applicable to payment
of such royalties.
8.7 Trademarks. Financial Transaction Products sold or otherwise
distributed by HHP pursuant to the exercise of its Licenses shall be distributed
by HHP under its own trademarks, and no license or right to use @pos trademarks
is granted under this Agreement.
8.8 Marking. HHP agrees to xxxx Financial Transaction Products sold or
otherwise distributed by HHP with the appropriate patent and copyright markings
in accordance with US laws. @pos agrees to supply HHP with the appropriate
information sufficient to allow HHP to xxxx the Financial Transaction Products.
9. ADDITIONAL COVENANTS & AGREEMENTS.
9.1 Manufacturing, by UIC. HHP agrees not to prohibit, restrict, or
discourage UIC from manufacturing products for @pos to enable @pos to supply
products to IBM solely pursuant to the existing contract between @pos and IBM.
9.2 Use of Tooling. @pos agrees to allow HHP's manufacturer or suppliers
to use the tooling described on Exhibit D (the "Tooling"), without charge, in
connection with the manufacture of hardware products for HHP, pursuant to HHP's
exercise of its rights and performance of its duties under this Agreement. Such
Tooling shall remain at the facilities of the manufacturer or suppliers
currently used by HHP and title to the Tooling shall at all times remain with
@pos. @pos agrees to maintain the tooling at all times. HHP and @pos agree to
cooperate in determining reasonable allocations of use of the Tooling for @pos
products and HHP products. @pos warrants to HHP that the Tooling has a total
remaining useful life of at least 50,000 pieces for each @pos product such
warranty is limited to 36 months from the date of this Agreement. HHP and @pos
agree that no changes will be made to the tooling without the prior written
consent of the other party, such consent shall reasonably not be withheld.
OTHERWISE, @POS MAKES NO REPRESENTATIONS OR WARRANTIES TO HHP CONCERNING THE
TOOLING, ITS PERFORMANCE, ITS SUITABILITY, ITS FREEDOM FROM DEFECTS, OR THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TOOLING, except that @pos
agrees to indemnify and hold harmless HHP for any personal injury or death that
may occur while the Tooling is used in standard operating conditions.
9.3 Customer Support and Warranty Obligations.
(a) Definitions. As used in this Section 9.3, the term "Support
Obligations" means all
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training, technical support, and other similar obligations to third parties,
pursuant to contracts entered into in connection with the sale of products. As
used in this Section 9.3, the term "Warranty Obligations" means all obligations
to field warranty calls and inquiries, visit sites, make repairs, accept
returns, deliver replacements, make installations, and other similar obligations
to third parties, pursuant to contracts entered into in connection with the sale
of products.
(b) @pos Obligations. @pos acknowledges that it is solely
responsible for, and/or hereby assumes and agrees to perform, at its expense,
all Support Obligations and Warranty Obligations with respect to the following
products: (a) @pos Products sold by @pos prior to January 11, 2000, and (b) @pos
Products sold by @pos to @pos customers after January 11, 2000.
(c) HHP Obligations. HHP acknowledges that it is solely
responsible for, and/or hereby assumes and agrees to perform, at its expense,
all Support Obligations and Warranty Obligations with respect to the following
products: @pos Products sold by either @pos or HHP after January 11, 2000 to
companies that are currently HHP customers or to any companies that become HHP
customers after the Effective Date of this Agreement. A company shall be deemed
to be an "HHP customer" if HHP has sold @pos Products to such company, or has
entered into an agreement with such company to do so.
9.4 Right of First Negotiation and Right of First Refusal on Sale of
Technology.
(a) First Negotiation & First Refusal. Subject to the terms of
this Section 9.4, if, on or before the date of the expiration of all U.S.
patents that are embodied in the Technology that are now existing or applied for
before the Effective Date of this Agreement, @pos proposes to sell title to any
of the Technology or any tooling or other manufacturing items related thereto,
then @pos shall give HHP advance notice and the opportunity to negotiate for the
purchase of said Technology. If, within thirty (30) days after the start of such
negotiations, the parties do not agree upon the price and terms for the sale of
such Technology to HHP, @pos shall be free to negotiate with third parties for
the sale of such Technology and to sell such Technology to third parties;
provided, however, that @pos shall not thereafter sell such Technology to a
third party upon terms and conditions that are more favorable to the purchaser
than those last offered to HHP, without first offering such more favorable terms
to HHP. HHP shall have ten (10) days after notification by @pos of such more
favorable terms to notify @pos of HHP's acceptance or rejection of such more
favorable terms. If HHP notifies @pos of HHP's acceptance of such more favorable
terms within such period, @pos and HHP shall immediately prepare and execute a
definitive agreement for the sale of such Technology to HHP on such terms and
conditions. If HHP does not notify @pos of HHP's acceptance of such more
favorable terms within such period, @pos shall be free to sell such Technology
on such terms, or on other terms no more favorable to the purchaser.
(b) Exempt Transfers. Notwithstanding the provisions of paragraph
(a) above, the following transfers of title to Technology or tooling or other
manufacturing items related thereto will be exempt from HHP's Right of First
Refusal: (i) any transfer of Technology to an Affiliate of @pos (or to an entity
that will be an Affiliate of @pos following the transfer), provided that the
transferee agrees in a writing satisfactory to HHP that HHP's Right of First
Refusal shall apply to any further sale of title to the Technology by the
Affiliate; (ii) any transfer of the Technology made pursuant to a statutory
merger or consolidation of @pos with or into another corporation or corporations
(in which case the Right of First Refusal will continue to apply thereafter to
the Technology in the hands of the successor corporation); (iii) any transfer of
Technology pursuant to bona-fide foreclosure of a security interest or lien held
by a third party in the Technology (in which case the Right of First Refusal
will continue to apply to the Technology in the hands of the transferee).
10
(c) Survivability of HHP's Use of Tooling. Notwithstanding the
provisions of paragraphs (a) and (b) above, in the event of any transfer or sale
of the Technology by @pos to a third party, HHP shall retain the right to use of
the tooling pursuant to this Agreement.
9.5 Insurance. @pos and HHP shall each secure and maintain comprehensive
general liability insurance covering each occurrence of bodily injury and
property damage in an amount of not less than $2,000,000 combined single limit
with endorsements for (a) products and completed operations, (b) blanket
contractual liability (deleting any exclusion for products and completed
operations liability), and (c) broad form vendor's liability. @pos and HHP shall
each furnish to the other party, upon request, a certificate of insurance issued
by the carrier evidencing the foregoing endorsements, coverage, and limits, and
stating that such insurance shall not be cancelable without at least thirty (30)
days written notice to the other party.
10. REPRESENTATIONS & WARRANTIES. The parties make the following representations
and warranties:
10.1 Organization: Good Standing. Each party represents and warrants to
the others that such party is a corporation duly organized, validly existing and
in good legal standing under the laws of its state of incorporation. @pos is
duly qualified to transact business in the State of California.
10.2 Authority. Each party represents and warrants to the others that
such party has full corporate power and authority to enter into this Agreement
and to perform its obligations under this Agreement, and that this Agreement has
been approved by the board of directors of such party if such approval is
required.
10.3 Binding Effect. Each party represents and warrants to the others
that, when executed and delivered by such party, this Agreement will constitute
a valid and binding obligation of such party, enforceable in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy and
insolvency laws, and laws affecting creditors' rights generally, and subject to
the availability of specific performance or other equitable relief.
10.4 Litigation. Each party represents and warrants to the others that
there are no actions, proceedings or investigations pending against or affecting
such party, and, to the best of its knowledge, there has been no threat thereof,
which could cause this Agreement to be made null and void or not have the
intended effect.
10.5 Disclaimer of Other Warranties. EXCEPT AS SPECIFICALLY OTHERWISE
PROVIDED IN THIS SECTION 10, THE TOOLING, TECHNOLOGY, THE SOFTWARE, AND THE
DELIVERABLES (ONCE ACCEPTED BY HHP PURSUANT TO THE PROVISIONS OF SECTION 3.3)
SHALL BE PROVIDED BY @POS "AS IS" WITHOUT ANY WARRANTIES, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN PARTICULAR, HHP ACKNOWLEDGES THAT @POS DOES NOT GIVE ANY WARRANTY THAT THE
TOOLING, TECHNOLOGY, SOFTWARE, OR DELIVERABLES WILL BE FREE FROM ERRORS OR FREE
FROM DEFECTS, SUCH AS DEFECTS IN DESIGN.
10.6 Right to Transfer. @pos represents and warrants that it owns all
right, title and interest in and to the @pos Products, Technology, Firmware and
Software.
10.7 Infringement of Third Parties' Rights. @pos represents and warrants
that, to the best of its knowledge, @pos knows of no notices or claims of
infringement regarding the @pos Products,
11
Technology, Firmware or Software, except those notices or claims of infringement
that are publicly disclosed.
11. INDEMNIFICATION.
11.1 By @pos. @pos agrees to indemnify and hold HHP harmless from and
against any claims, liabilities, damages, costs, and expenses (including
reasonable attorney fees), that HHP may incur as a result of any claim by a
third party that the Technology or the Software infringes the patent rights
and/or copyrights of such third party. @pos' obligations under this paragraph
shall apply only if HHP notifies @pos promptly of any such claim, turns over
control of the defense of such claim to @pos, does not settle or compromise any
such claim without the prior written consent of @pos, and cooperates in the
defense of such claim at the expense of @pos. The obligations of @pos under this
paragraph shall not apply to claims of infringement arising out of or resulting
from (a) any modifications, updates or revisions to the Technology or Software
not created by @pos, or (b) the use of any Technology or Software in conjunction
with items not furnished by @pos, if use of the Technology or Software without
such other items would not infringe. Notwithstanding the above, the obligations
of @pos pursuant to this paragraph shall not apply to Jointly Owned Technology.
11.2 By HHP. HHP agrees to indemnify and hold @pos armless from and
against any claims, liabilities, damages, costs, and expenses (including
reasonable attorney fees), that @pos may incur as a result of any claim by a
third party that (a) the patent rights and/or copyrights of such third party are
infringed by (i) any modifications, updates or revisions to the Technology or
the Software created by HHP, or (ii) the designs or other aspects of any
products with which the Technology or the Software are used or into which they
may be incorporated, or (b) products manufactured by or for HHP using the @pos
Tooling, whether such claim is based xxxx xxxxxxxx, xxxx, xxxxxx liability, or
any other legal theory, except to the extent that such claim is based upon @pos
tooling. HHP's obligations under this paragraph shall apply only if @pos
notifies HHP promptly of any such claim, turns over control of the defense of
such claim to HHP, does not settle or compromise any such claim without the
prior written consent of HHP, and cooperates in the defense of such claim at the
expense of HHP. The obligations of HHP under this paragraph shall not apply to
claims of infringement arising out of or resulting from the use of any HHP
designs or products, or HHP modifications, updates or revisions to the
Technology or Software in conjunction with items not created by HHP, if use of
HHP's designs, products, modifications, updates or revisions without such other
items would not infringe. Notwithstanding the above, the obligations of HHP
pursuant to this paragraph shall not apply to Jointly Owned Technology.
12. CONFIDENTIAL INFORMATION. The parties agree to enter into a separate
agreement pursuant to which each party will agree not to disclose any of the
other party's confidential information to third parties, and not to use such
confidential information for unauthorized purposes, prior to January 31, 2003.
13. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER
THIS AGREEMENT FOR ANY CAUSE OF ACTION, WITHER IN CONTRACT, WARRANTY, TORT, OR
OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING LOSS OF REVENUE OR PROFITS) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE BREACH THEREOF. IN NO EVENT SHALL THE LIABILITY OF @pos TO HHP
UNDER THIS AGREEMENT, FOR INDEMNIFICATION OR FOR ANY OTHER CLAIM, SUIT, OR CAUSE
OF ACTION RELATING IN ANY WAY TO ANY ITEMS OR SERVICES PROVIDED BY @pos UNDER
THIS AGREEMENT, EXCEED THE AMOUNT HHP HAS PAID @POS UNDER THIS AGREEMENT. IN NO
EVENT SHALL THE LIABILITY OF HHP TO @POS UNDER THIS AGREEMENT, FOR
INDEMNIFICATION OR FOR ANY OTHER CLAIM, SUIT, OR CAUSE OF
12
ACTION RELATING IN ANY WAY TO ANY ITEMS OR SERVICES PROVIDED BY HHP UNDER THIS
AGREEMENT, EXCEED THE AMOUNT HHP HAS PAID @POS UNDER THIS AGREEMENT.
14. GENERAL PROVISIONS.
14.1 Independent Contractors. The parties hereto are independent
contractors and no agency, partnership, joint venture, or other relationship
shall be created or implied by this Agreement.
14.2 Assignment. Neither party may assign this Agreement without the prior
written consent of the other party, which may not be unreasonably withheld;
except that either party shall be entitled to assign this Agreement to an
Affiliate without consent unless such Affiliate is a competitor of the other
party.
14.3 Amendment and Waiver. This Agreement may not be amended except by a
written instrument signed by both HHP and @pos. No waiver of a breach or default
shall be effective unless evidenced by a writing signed by the party entitled to
the benefit of the provision breached. No waiver of a breach or default shall be
deemed a waiver of any subsequent breach or default.
14.4 Entire Agreement. This Agreement, the attached Exhibits and any
document or agreement executed by the parties pursuant to this Agreement
constitute the entire understanding, agreement, and contract of the parties with
respect to their subject matter and supersede all prior agreements or
understandings, written or oral, among the parties with respect thereto. No
party shall be liable or bound to the other in any manner by any warranty,
representation, or covenant contained in any such prior agreement,
understanding, or contract except as specifically set forth in this Agreement.
14.5 Severability. If the application of any provision of this Agreement
shall be held to be invalid or unenforceable by any court of competent
jurisdiction, then (i) to the extent feasible, such provision shall be reformed
in a manner that makes it enforceable and which accomplishes the intention of
the parties as clearly as possible, and (ii) the validity and enforceability of
other provisions of this Agreement shall not in any way be affected or impaired
thereby.
14.6 Notices. All notices under this Agreement shall be in writing and
shall be deemed given (i) on the same day if delivered in person, or (ii) on the
third business day if sent by certified mail, return receipt requested, to the
president of the party at its address shown in this Agreement. Either party may
change its address for notice purposes by notifying the others of the new
address in accordance with the above notice procedure.
14.7 Governing Law. This Agreement shall be construed in accordance with
and governed by the internal laws of the State of Delaware.
14.8 Dispute Resolution.
(a) Negotiation. The parties shall attempt to resolve any and all
disputes between them arising out of or relating to this Agreement by good faith
negotiation.
(b) Arbitration. If, within thirty (30) days after any dispute arises,
the parties are unable to resolve the dispute through negotiation, all such
disputes shall be submitted to binding arbitration by either party. The parties
agree that, if they are unable to resolve a dispute by negotiation, such
arbitration shall be the exclusive means of resolving such dispute, and each
party waives the right to trial by jury.
13
Such arbitration shall be conducted under the Commercial Arbitration Rules of
the American Arbitration Association (the "AAA") in Chicago, Illinois. The
matter shall be heard by a single arbitrator if the parties mutually agree upon
an arbitrator within thirty (30) days. Otherwise, each party shall select one
independent, neutral arbitrator from a list to be provided by the AAA. A party
may not contact separately any arbitrator except in a writing also provided to
the other party. The arbitrator(s) shall be empowered to reasonably limit
discovery in the arbitration proceedings. The arbitrator(s) shall award costs
and reasonable attorney fees to the prevailing party. Any arbitration award may
be enforced by any court having jurisdiction over a party or its property.
(c) Litigation. The parties agree that any matters relating to
arbitration for which judicial assistance is requested or required shall be
brought only before a court, whether federal or state, in any state which has
jurisdiction. The prevailing party in any such suit shall be awarded costs and
reasonable attorney fees.
14.9 Force Majeure. Neither party will be liable for, or be considered in
breach of or default under this Agreement on account of any delay or failure to
perform as required by this Agreement (other than an obligation to pay money) as
a result of any causes or conditions beyond such party's reasonable control (a
"Force Majeure Event") including but not limited to fire, earthquakes, storms,
flood, strikes, riots, war, and acts, delays or failures to act by the other
parties or any third party. Any breach of this Agreement shall be excused for
the duration of any such Force Majeure Event.
14.10 Taxes. HHP shall be solely liable for payment of any federal, state,
local or other taxes that may apply or be imposed by any governmental authority
arising out of this Agreement (except for taxes based upon the net income of
@pos).
Signatures
For the purpose of binding the parties to this License Agreement, their
authorized representatives have executed in duplicate originals by signing their
names below.
@xxx.xxx, Inc. HAND HELD PRODUCTS
By: /s/ XXXXXX XXXXXXXX By: /s/ XXXXX X. XXXX 12/29/00
------------------------- ----------------------------------
Xxxxxx Xxxxxxxx CEO & CTO President & CEO
----------------------------- --------------------------------------
Name and Title Name and Title
XXXXX XXXXX DATA COLLECTION, INC.
By: /s/ XXXXX X. XXXX 12/29/00
----------------------------------
President & CEO
--------------------------------------
14
Name and Title
15
TRANSITION PLAN - PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- -------------------- ------- ------- ------ --------
1 EXECUTION OF AGREEMENT 1
2 3100 DOCUMENTATION 1
Released Product Specification
3 1500 DOCUMENTATION
Released Product Specification 1
4 TRANSFER OF 3100/1500 FIRMWARE AND 1
SOFTWARE SOURCE CODE
(1) Final Acceptance Date:_______ HHP Signature___________ @pos Signature______
1 of 8
16
TRANSITION PLAN - PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- -------------------- ------- -------- ------- ----------------
3100 Product Specification Updated 2
1500 Product Specification Updated 2
@POS WILL ASSIST HHP IN DOWNLOADING 2
AND COMPILING ANY SOFTWARE SOURCE CODE
WHICH WAS TRANSFERRED IN ITEM 4 OF THIS
CHECKLIST
5 3100 HARDWARE
New Board Spin Complete 2
2 Unit Prototype build 2
Complete 10 unit build 2
Proto/Eval./Debug DVT board 2
"Written qual plan provided to HHP, 2
based on released MRD/prod. Spec
Consensus on Qual Plan 2
Qualification testing complete 2
Review and acceptance of qual results 2
Second Round Cleanup Layout 2
De-bug and qual 2nd layout 2
Review and acceptance by HHP 2
6 ECO MECHANICAL CHANGES
Resolve open issues 2
Establish Cost impact 2
Qualification of changes 2
Implementation Agreement 2
(1) Final Acceptance Date:_______ HHP Signature_________ @pos Signature_________
2 of 8
17
TRANSITION PLAN - PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- --------------------- ------- -------- ------- --------
7 INVERTER BOARD APPROVAL 2
ERG Samples to @POS 2
Document from ERG 2
@pos testing complete 2
Review data with HHP 2
@pos Disapproved samples not 2
meeting spec
@POS identify solution for 2
inverter board and approval
by HHP
@POS deviation for 5K+ inverter boards 2
8 RS-232/RS485 TRANSCEIVER/KEY INJECTION 2
9 LCD ISSUE RESOLUTION - Need disposition 2 1)
on current Hoyu PO successfully resolved
to HHP's satisfaction. Need HHP approval
on NanYa samples. Need drawing and/or
spec ECOed to include definition of
color/contrast to prevent this from
happening again
10 UPDATE TO CLARIFY PASS/FAIL AT TEST (FW) 2
11 3100 FIRMWARE/SOFTWARE
Firmware/software documentation complete 2
per Exhibit D
Software training for HHP and third party 2
(1) Final Acceptance Date:________ HHP Signature________ @pos Signature_________
3 of 8
18
TRANSITION PLAN - PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- --------------------- ------- -------- ------- ---------
12 1500 HARDWARE
Block diagram 2
Field Data/Warranty returns 2
summary
13 1500 HARDWARE DESIGN REVIEW
Design review on 1/9-10/01 2
Review block diagram 2
Review schematic/BOM 2
Review Mechanical assembly 2
Review quasL test plan and 2
results/reports
Review field data/warranty 2
returns
"Resolution of design issues 2
uncovered, and qualification of
corrective action"
HHP acceptance of review and 2
resulting corrective actions
14 1500 AGENCY APPROVALS
UL file update - what needs to 2
be done?
5 units sent from HHP to @POS 2
"Conduct CE testing w/220v pwr 2
supply, long cable"
Review and acceptance of QuasL 2
results
HHP as mult. Listing/@POS file 2
Qual/Agency reports and certs 2
to HHP
15 1500 FIRMWARE/SOFTWARE 2
Firmware/software documentation 2
complete per Exhibit D
Software training for HHP and 2
third party
(1) Final Acceptance Date:________ HHP Signature_________ @pos Signature________
4 of 8
19
TRANSITION PLAN - PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- -------------------- ------- -------- ------- --------
16 3100 AGENCY APPROVALS
ESD Testing 3
FCC 3
UL 3
CE 3
HHP to be added to UL File 3
Qual./Agency reports and certs to HHP 3
HHP needs FCC, CE Test reports with 3
HHP name and declaration
(1) Final Acceptance Date:_______ HHP Signature___________ @pos Signature______
5 of 8
20
TRANSITION PLAN - PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- -------------------- ------- -------- ------- --------
17 3100 DOCUMENTATION
Configuration/Sell Sheets 3
Manual Updated- file provided 3
"Cable drawings need mfr, mfr p/n info 3
Update component drawing 3
Provide current documentation status 3
(index/checklist)
Continue Update component drawing 3
Assembly Drawings/BOM 3
Current Component Drawings 3
ECOs for Drawing/Document 3
"Deviations, active and 1 yr history" 3
Native CAD files 3
Gerber file 3
Current Sch. Dwg and native CAD file 3
Test Specification 3
Test Procedures 3
Manufacturing Methods/work instructions 3
Test and Tooling drawings and native 3
Receiving/Inspection criteria/tests 3
Index of document/revisions and sign-off 3
(1) Final Acceptance Date: HHP Signature @pos Signature
----- --------- ------------
6 of 8
21
TRANSITION PLAN -- PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- --------------------- ------- -------- ------- --------
18 1500 DOCUMENTATION 3
Configuration/Sell Sheets 3
Manual Updated - file provided 3
"Cable drawings need mfr, mfr p/n info 3
Update component drawing 3
Provide current documentation status 3
Continue Update component drawing 3
Assembly Drawings/BOM 3
Current Component Drawings 3
ECOs for Drawing/Document 3
"Deviations, active and 1 yr history" 3
Native CAD files 3
Gerber file 3
Current Sch. Dwg and native CAD file 3
Test Specification 3
Test Procedures 3
Manufacturing Methods/work instructions 3
Test and Tooling drawings and native 3
Receiving/inspection criteria/tests 3
Index of document/revisions and sign-off 3
(1) Final Acceptance Date:______ HHP Signature_________ @pos Signature__________
7 of 8
22
TRANSITION PLAN - PAYMENT & CHECKLIST
EXHIBIT A-1 12/27/00
Payment Delivery Accept.
Item @POS Transition Plan Level Date Date Comments
---- -------------------- ------- -------- ------- --------
19 3100/1500 FINAL HAND-OFF
All new request are frozen as of 3
February 1, 2001
HHP assumes total responsibility for 4
Component Eng when HW and SW
transition is complete for both products
Firmware/Software sign-off on Exhibit D 4
'Software Transition Plan'
All required training is complete. HHP and 4
@POS have agreed on method for 200
hours of support service
(1) Final Acceptance Date:_________ HHP Signature________ @pos Signature________
8 of 8
23
DOCUMENTS
EXHIBIT A-2
@POS Documents
In order to establish a configuration baseline, we identified the following
types of documentation in March '00 (this list adds deviations, adds/clarifies
ECOs):
1. Released product/performance spec
2. Configuration sheets/sell sheets
3. Current schematic
4. Assembly drawings, BOMs for each configuration. Current component drawings
5. Latest ECO for each drawing/document
6. Current test specs
7. Test and tooling drawings
8. Software files
9. Current PCB files
10. Incoming inspection criteria, test for critical component "features"
11. Manufacturing method sheets/work instructions
12. Test procedures
13. Packaging spec
14. Qualification/agency reports and certifications
15. Current deviations
16. Index/list of all drawings and documents provided, with their current
revision indicated.
24
3100/1500 Software Transition Plan
Exhibit A-3 12/08/00
- @POS to provide ALL necessary firmware, SDK's and documentation.
Reference `Summary of PW1500 and PW3100 Source Code' sections 1-5.
Target Completion 12/21.
- @POS will transfer software detailed design document that includes data
flow diagrams and block diagrams.
- HHP will review firmware, SDK and documentation to become familiar.
Target Completion 1/19/01.
- @POS to provide `one time' training to HHP and selected third party
software company. Training would be targeted for 1/22-2/2 2001.
- Upon completion of the training, @POS will provide 200 hours of software
support for the next two years at no cost.
- After the two year software support has expired a contract fee will be
implemented on new initiatives.
- Transfer of the source code and documentation will be in a way that HHP
can duplicate or transfer into a development system (CD, Disks, Web
download).
- Information being transferred needs to be organized, labeled and
complete.
- Weekly reviews will be conducted to assure proper information exchange.
SUMMARY OF PWI500 and PW3100 SOURCE CODE
1. SOFTWARE DEVELOPMENT KIT VERSION 4.3 (distributed with PW1500)
The following lists the items that get installed for a 16 and 32-bit
installation that HHP would need the source code:
readme.txt - 12/9/99
license.txt - 12/10/99
sigbox.ocx - 04.30.0001- 10/6/99 (225kb) or latest version
25
SIGBOX16.0CX - 4.30.0001
SAMPLES:
32-bit
padcom-msr, padcom-pinpad, sigbox-vb (graphics, msr, paddthru, pinpad,
sig), sigbox-vc
PADCOM-4.30.00005: 16 Bit & 32 Bit - padcom.h - 12/3/99
Borland
DOS - padcomdl.lib, padcomdm.lib, padcomds.lib - 12/3/99
Win16 - padcomwl.lib, padcomwm.lib, padcomws.lib, padcomww.lib - 12/3/99
Win32 - padcomw.lib - 12/3/99
microsoft
DOS - padcomdl.lib, padcomdm.lib, padcomds.lib - 12/3/99
Win16 - padcomwl.lib, padcomwm.lib, padcomws.lib, padcomww.lib - 12/3/99
Win32 - PADCOMw.lib, PADCOMwt.lib - 12/3/99
SIGKIT-4.30.00005: 16 Bit & 32 Bit - sigkit.h - 12/2/99
Borland
DOS - sigkitdl.lib, sigkitdm.lib, sigkitds.lib - 12/3/99
Win16 - sigkitwl.lib, sigkitwm.lib, sigkitws.lib, sigkitww.lib - 12/3/99
Win32 - sigkitw.lib - 12/3/99
microsoft
DOS - sigkitdl.lib, sigkitdm.lib, sigkitds.lib - 12/3/99
Win16 - sigkitwl.lib, sigkitwm.lib, sigkitws.lib, sigkitww.lib - 12/3/99
Win32 - SIGKITW.lib, SIGKITWT.lib - 12/3/99
UTILITY:
16-bit versions 4.30.0001 - Getsig.exe, Getsigw.exe, Sigtool.exe,
Tester.exe - 10/29/99, PWInit,
32-bit versions 4.30.0001 - GetSigW.exe, SigTool.exe, Tester.exe -
10/29/99
pwinit - PWInit.exe - 10/29/99
DOC:
Ar16e301.exe - 9/4/98 - Acrobat 16-bit (NOT REQUIRED)
Ar32e30.exe - 2/9/97 - Acrobat reader 3.0. (NOT REQUIRED)
padcom.pdf - 12/3/99 - Version 4.3, Part No. PC17401 - Rev F
roadmap.pdf - 12/3/99 - Part No. PC17401 - Rev F
sigbox.pdf - 10/29/99 - Version 4.3, Rev 2 - Part No. PC17401 - Rev F
sigkit.pdf - 12/3/99 - Version 4.3 - Part No. PC17401 - Rev F
2. iPOS SOFTWARE SUITE VERSION 3.1 (distributed with PW3100)
- SDK - Installation for sdk 4.3
16-BIT
32-BIT
Same as installing from SDK 4.3 CD.
- UTILITIES - Installation for utilities 4.3.
Same as installing from SDK 4.3 CD.
26
- posVISUAL - Installation for posVisual 1.6.6
FIRMWARE AUTOLOAD
AUTOLOADWIN 6.1.exe - (downloads f/w version 6.3)
The following is a list of items that get installed with posVisual 1.6.6:
DOCUMENTATION:
pos Visual Programmer Manual.pdf - 5/16/00
mxsptools.pdf - 5/6/99
Notice to VA16PinPad.doc - 5/15/00
readme.txt - 5/16/00
License.txt - 12/13/99
ScriptDescriber.txt - 5/7/00
OCX's, DLL's, ETC.:
sigbox.ocx - same as with SDK4.3
mxScript.dll - 1.60 - 11/2/99 (56kb)
mxSptool.dll - 1,0,0,1 - 12/19/98 (21kb)
mxVisual.dll - 1.06.0002 - 5/10/00 (284kb)
mxVAhost.dll - 1.60 - 5/7/00 (104kb)
VisualControls.ocx - 1.60 - 11/2/99 (68kb)
VAAdmin.exe - 1.60 - 11/4/99 (184kb)
SAMPLES:
Scriptmode
ExampleScriptMode - Sample script program written in Visual Basic
using posVisual.
ScriptHost - Sample program to interface to sample script, written
in Visual Basic using mxsptool.dll to interface to the script.
VBMode
ExampleVBMode - Visual Basic sample program using posVisual in VB
mode.
TEMPLATE - Special posVisual forms and modules for use with Visual
Basic.
3. FIRMWARE FOR 3100 AND 1500
PW3100 Rev. 6.3
PW3100 Rev. 6.22
PW3100 Rev. 6.21
PW1500 Rev. 2.1 (Used with Nissha touchpad controller)
PW1500 Rev. 1.5 (Used Tritech controller (RMA only))
4. ipos SOFTWARE SUITE 2.0 FILES NOT AVAILABLE ON SUITE 3.1
- Hide&Seek1.51
installation for Hide&Seek.
documentation on CD:
HSAdmin2.PDF - 3/2/99
HSUser2.PDF - 3/2/99
- Sdk4.1
Drivers
27
MOUSE DRIVERS
WIN31
OEMSETUP.INF . 7/30/98
PW1100.DRV -7/30/98
WIN95
PW1100.VXD - 9/15198
PW1100.CPL - 9/12/98
PW1100.INF - 9/9/98
WINNT
PW1100.INF - 8/19/98
PW1100.SYS - 8/19/98
documentation on CD:
UM1500.DOC - 7/29/98
XXXXX DRIVERS - zip file for installation for Xxxxx driver
beta release. (NOT AVAILABLE)
WINTAB DRIVERS
installation for WinTab drivers beta release.
documentation on CD:
WINTAB USER MANUAL.DOC - 10/8/98
OPOS
1.3.7 - installation for opos 1.3.7.
RS-485
PADCOM4.2
PADCOMS.LIB - 3/19/99
PUBLIC.H - 3/19/99
documentation on CD:
MANUAL.PDF - 3/22/99 - VERSION 4.2 - PART NO. 75030-420
- REV B
5. OTHER:
List of development environment documentation to successfully
maintain F/W and SDK's, and provide compiliers for the following:
Borland C++ 4.5 MS Visual C++ 4.0
Paradigm Locate 5.11 MS Visual Basic 6.0
Microsoft Visual 1.52 Borland C++ 3.1
28
EXHIBIT B
PAYMENTS
HHP will pay @pos the amounts shown below, at the times specified below.
-------------------------------------------------------------------------------------
AMOUNT WHEN DUE
-------------------------------------------------------------------------------------
$625,000 Upon @pos' delivery to HHP of the Deliverables identified
as Payment Level 1 in Exhibit A-1 (certain specifications
and the source code to the Firmware and Software).
-------------------------------------------------------------------------------------
$625,000 Upon HHP's acceptance of the Deliverables identified as
Payment Level 2 in Exhibit A-1.
-------------------------------------------------------------------------------------
$1,250,000 Upon HHP's acceptance of the final Deliverables
identified as payment Levels 3 and 4 in Exhibit A-1.
-------------------------------------------------------------------------------------
TOTAL:
$2,500,000.00
-------------------------------------------------------------------------------------
29
EXHIBIT C
JOINTLY OWNED TECHNOLOGY
30
Exhibit C
PCB changes:
1. Addition of resistor/capacitor to FETS for in-rush current problem
2. Add pull-up to CTS2 net (12V line pull-up so that the line is in "rest" when
not used)
3. Add pull-up/pull-down on RS485 line, so it is in known state when not
selected
4. Fix floating CMOS inputs by adding pull-down resistors (3)
5. Fix INTB signal on UART (floating) by adding pull-down resistor
6. Add current blocking diodes to U44, in order to eliminate V+/V and analog
switch issue
7. Change U2 from HC04 to HC14
8. Pwr to U44 differently
9. Circuit change to power up Cypress chip faster
Other changes:
1. ERG inverter bd. redesign
2. Modification to bottom housing to add radii to bosses
3. Use of 12v regulated power supply
31
Exhibit D
Tooling List
@pos TOOLING LIST
31-DEC-00
00000-000 - XX0000 - TOOLED PARTS -
PORA DESCRIPT MANUFACT MANUFACT2
10033-001 CHASSIS,TOP,IPOS3100,XXXX,@XXX.XXX ARTERNET
10034-001 CHASSIS,BOTTOM,PW3100,MOBNTIX XXXX ARTERNET
10051-001 LABEL,REAR PORT,PW3100 #2,MOB XXXX PACIFIC TECHNOLOGY X.X. XXXXXXXX INC
10058-002 LABEL,UNIT,S/N&FCC,PW3100 #2 BASIC X.X. XXXXXXXX INC
10059-002 XXXXX,X/X XXX, XX0000 #0, XXXXX X.X. XXXXXXXX INC
10091-001 BRKT/CLAMP,LCD/MEM MODULE,3100 APPLIED METAL PRODUCTS PACIFIC TECHNOLOGY
33006-001 PCB FAB, PW3100 PACIFIC TECHNOLOGY
83004-015 THUMBSCREW,4-40x5/16",KNURLED VM INDUSTRIES PTI
PC10043 LABEL, WARNING, HIGH VOLTAGE X.X. XXXXXXXX INC
PC10071 LABEL, VOIDABLE, UNIT, GENERIC VALMARK INDUSTRIES, INC. X.X. XXXXXXXX INC
PC14002-02 TOUCHPAD,CSTM,PW3XXX,100-120MMTAIL RIKEI CORP OF AMER.
PL-10000 XXXXXXX, XX0000,XXXXX 2 PACIFIC TECHNOLOGY X.X. XXXXXXXX INC
PL10001 ADHESIVE STRIP, TOUCHPAD/CHASSIS X.X. XXXXXXXX INC
PL10003 XXX XXXXX, XXXX, XX0000 ARTERNET CORD PACIFIC TECHNOLOGY
PL10004 XXX XXXXX, XXXXX, XX0000 ARTERNET CORP PACIFIC TECHNOLOGY
PL10005 GASKET, DUST SHIELD,PW3100 ECHO SUPPLY
PL10013 SHIELD, EMI,PW3100 ARTERNET CORP PACIFIC TECHNOLOGY
PL10025-01 LABEL,MSR ICON,IPOS3100,XXXX X.X. XXXXXXXX INC PACIFIC TECHNOLOGY
PL10027-01 LABEL,SIDE,LEFT,PW3100,XX XXXX X.X. XXXXXXXX INC PACIFIC TECHNOLOGY
PL12002-01 MSR COVER,IPOS3100 XXXX, @XXX.XXX ARTERNET
00000-000 - XX0000 TOOLED PARTS -
PORA DESCRIPT MANUFACT MANUFACT2
10076-033 LABEL,S/N&FCC,PW1500,RS232 W/O CE
36007-000 PCB ASSY-MAIN PW1100/1500
PC10071 LABEL, VOIDABLE, UNIT, GENERIC VALMARK INDUSTRIES, INC. X.X. XXXXXXXX INC
PE16001 TOUCH PAD, PW1XXX SAMSUNG DISPLAY CO
PF10015 OVERLAY, PW1XXX PACIFIC TECHNOLOGY X.X. XXXXXXXX INC
PF10022-23 XXXXX, X/X, XXX, XX0000 XX000 X.X. XXXXXXXX INC.
PF12001 XXXXXXX XXXX, XX0000/XX0000 MACROTECH MKTG INC
PF12003 CASE, TOP XX0000/0000/0000/0000 XXXXXXXX XXXX XXX'X
XX00000 CASE, BASE XX0000/0000/0000/0000 XXXXXXXX XXXX XXX'X
XX00000 DOOR, BATTERY PW1100/1500/1550/2000 BROADWAY TECH INT'L
81001-005 CABLE, FLEX,20 CND, PW15XX LCD MOD PTI
PF12009 TOP BLOCK. PW1100/1500 MACROTECH MKTG INC
PF12010 RETAINER, PW1500/1550 MACROTECH MKTG INC
PF13004 PCB,LCD FAB BD, PW1500 PTI WHITWAYS(NA) INC
32
EXHIBIT E
EXISTING AGREEMENT
33
\
MANUFACTURING LICENSE AND DISTRIBUTION AGREEMENT
This Agreement is made this 11 day of January, 2000 by and between XXXXX XXXXX
DATA COLLECTION, INC., a Delaware corporation having a place of business at 0000
Xxxxxx Xxxx, Xxxxxxxxxxx Xxxxx, Xxx Xxxx 00000 ("WADC") and @XXX.XXX, a Delaware
corporation having a place of business at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX
00000 ("POS").
WHEREAS, POS has developed a hardware product line more fully described
hereafter;
WHEREAS, POS desires to license WADC to make, have made, use, and sell
the product line on a worldwide non-exclusive basis;
WHEREAS, WADC desires the rights to manufacture, sell and distribute
said hardware product line, as well as any new hardware products developed by
POS;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1.0 DEFINITIONS.
1.1 "Products" shall mean the entire POS hardware product line,
including the 1100, 1500, 3100, IPOS TC, and accessories and supporting software
products, regardless of labeling (i.e. WADC, POS, or any subsidiary or affiliate
of POS' label), together with the parts and components necessary for the repair
and replacement thereof, and all modifications, improvements, and enhancements
developed by POS or a POS subsidiary or affiliate pertaining to such Products,
parts, and components, as well as any new hardware products developed by POS
during the term of this Agreement.
1.2 "Software" shall mean any Product, or portion thereof, consisting of
POS software or firmware, including, but not limited to, SDK, but not including
any feature enhancements made to such Software by WADC.
1.3 "POS Unit Sales" shall mean the unit sales of Products to POS
customers invoiced by WADC less credits or allowances, if any, on account of
qualified rejections or returns of Products previously sold. Qualified returns
and rejections will be limited to the return of new unopened products and will
not include returns as part of stock rotation policies. Products shall be deemed
to have been sold when delivered, invoiced, and paid for by the customer.
1.4 "WADC Unit Sales" shall mean the unit sales of Products to WADC
customers invoiced by WADC less credits or allowances, if any, on account of
qualified rejections or returns of Products previously sold. Qualified returns
and rejections will be limited to the return of new unopened products and will
not include returns as part of stock rotation policies. Products shall be deemed
to have been sold when invoiced to the customer.
1.5 "License Fees" shall mean licensing fees paid or payable by WADC to
POS determined with respect to WADC Unit Sales and POS Unit Sales.
1.6 "Fee Year" shall mean each twelve month period commencing with the
execution of this Agreement.
2.0 LICENSE.
2.1 POS, subject to all the terms and conditions of this agreement,
hereby
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grants to WADC, a nonexclusive worldwide license for the term defined by Article
9.0, to make, have made, use, and sell Products. This license includes the right
to sublicense the manufacturing of the Products for WADC, subject to the
sublicensee executing an agreement approved by POS to protect POS confidential
information from further use or disclosure. It also includes the right to use
POS' or any POS directed name or trademarks or trade names only on Products sold
to POS' customers. Products sold to WADC customers shall have a WADC label or a
WADC customer label. Notwithstanding anything to the contrary in this Agreement,
(i) copies of Software may be distributed by WADC, but not sold, and POS shall
continue to own the copyrights to all Software (ii) Software may be distributed
by WADC in object code form only, except that the SDK Software may be
distributed by WADC in object code or source form, and (iii) WADC may distribute
each Software application only under a license agreement approved for such
application by POS in writing. POS hereby approves the form of license agreement
attached hereto as Exhibit D for distribution of Software consisting of SDK
source code, and the form of license agreement attached hereto as Exhibit E for
distribution of POS "Visual Advantage" Software in object code form.
2.2 POS shall retain the right to make, have made, use and sell Products
for its own commercial purposes; however during the term of this Agreement, and
only for the Products for which WADC assumes the responsibility to manufacture
or have manufactured, POS may not have such Products made for it by Uniform
Industrial Corporation ("UIC").
2.3 Notwithstanding anything to the contrary in this Agreement, POS and
WADC shall each promptly and fully disclose in writing to the other party any
and all enhancements, improvements, updates, or other modifications to the
Products (including but not limited to the Software), and all patent, copyright,
trade secret and other intellectual property rights therein, that are created,
produced, invented, conceived or first reduced to practice during the term of
this Agreement (all of which are referred to below as "Product Improvements").
Product Improvements will belong to the party at whose facility the Product
Improvement was first reduced to practice with the exception of all derivative
works relating to POS source code which shall, in all cases, belong to POS and
in which case WADC hereby assigns to POS, and agrees to assign to POS, without
further consideration, all right, title, and interest in, including all
intellectual property rights therein. If any Product Improvement related to
source code shall be deemed by POS to be patentable or otherwise registrable,
WADC shall assist POS (at POS's option and expense) in obtaining patents or
other applicable registrations or certificates thereon. WADC also agrees to
execute all documents (including assignments, declarations, licenses and powers
of attorney) and do all other things (including testifying at the expense of
POS), and use its best efforts to cause its employees to execute all documents
and do all other things, necessary or proper to effect the intent of this
Section. In the case of a jointly developed Product Improvement which the
parties are not able to determine at whose facility the Product Improvement was
first reduced to practice, the parties shall negotiate in good faith to
determine which party shall have the first right of election to file patent
application(s) or other registration(s) or certificate(s) thereon and each party
agrees to assist the other party (at the other party's option and expense) in
obtaining patents or other applicable registrations or certificates thereon and
each party also agrees to execute all documents (including assignments,
declarations, licenses and powers of attorney) and do all other things
(including testifying at the expense of the other party), and use its best
efforts to cause its employees to execute all documents and do all other things,
necessary or proper to effect the intent of this Section.
2.4 Neither party shall knowingly approach or quote the other party's
customers on the sales of Products during the term of this Agreement.
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3.0 OPERATIONS.
3.1 In connection with the manufacture, repair, warranty, and sale of
the Products, the duties of the parties shall be as follows. For clarification
purposes only, a matrix is attached as Exhibit A. Said matrix indicates in a
simplified format the division of responsibilities set forth in this Agreement.
Any discrepancies between the matrix and the wording of this Agreement shall be
resolved in favor of the wording.
(a) WADC shall be responsible for having the hardware Product
manufactured by a third party manufacturer, currently UIC. The agreement between
UIC and POS shall be canceled and replaced with an agreement between UIC and
WADC covering the manufacturing of the Products. Any agreement between UIC and
WADC shall have terms no less favorable than those in the agreement between POS
and UIC. '
(b) The purchase cost for WADC to procure Products from UIC is
based on Exhibit B. Any deviations from such cost shall be handled as hereafter
set forth.
(c) If these costs are reduced based on volume purchasing, then
the cost savings will be shared equally between WADC and POS. This will be
calculated on a biannual basis. Cost increases or decreases caused by design or
component changes shall be born totally by POS, unless design changes are
requested by WADC, in which case cost increases or decreases shall be borne by
WADC.
(d) WADC shall purchase all hardware Products from UIC or other
third party manufacturer, and sell to WADC customers and directly to all
customers of POS, except as set forth in Section 6.2 hereof. Depending upon
whether the sale is to a WADC customer or a POS customer, the License Fee to be
paid by WADC to POS shall be in accordance with the tables set forth in Section
4.1. In addition, WADC shall share in POS' profits generated from any POS sales
of services, Software, upgrades, or other sales to WADC customers, in an amount
to be agreed upon in writing by the parties. Prior to any customer visits where
both parties plan to visit the customer together, the parties shall agree in
writing upon whose customer that potential customer is for purposes of setting
the License Fee.
(e) POS shall not accept purchase orders for any hardware
Products directly from customers, but shall refer all customers exclusively to
WADC for the purchase of Products, except for customers referenced in Section
6.2. Extension of credit, and the terms thereof, for all POS customers is
subject to prior approval by the WADC Credit Department. The appropriate POS
sales professional will provide input as needed to assist in the process of
establishing effective credit terms for POS customers. If approved for credit,
WADC's standard credit terms and other WADC standard terms and conditions of
sale are set forth in Exhibit B.
(f) WADC shall be responsible for warranty, repairs, and
servicing of the hardware portion of the Products, except for design or Software
defects which shall remain the responsibility of POS. Design and Software
defects shall be limited to defects determined by a mutually agreed upon process
between WDAC and POS. POS shall provide a one-year warranty from the date of
delivery of Products to each customer, covering such design or Software defects.
Notwithstanding anything to the contrary in this Agreement, POS shall not be
responsible for changes to the design or Software that are created by anyone
other than POS.
(g) If Software upgrades for the 3100 Product are required by end
users, in excess of the one year POS warranty period, then POS will provide the
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upgrades to WADC at a charge of $5.00 per unit per year (includes firmware and
SDK) or $180 hour if the per year fee option is not selected: except that such
charge shall be at least 60% less than POS' list price for such upgrade, and
equal to or less than the best price charged for such upgrades to any other POS
customer. WADC may sell such upgrades to its customers at whatever prices it
determines.
3.2 During the term or any extension of this Agreement, POS shall sell a
minimum of 10,000 hardware Products per 6 month period beginning upon the
execution hereof, or WADC may re-negotiate the License Fees paid to POS and/or
terminate the portion of the Agreement which requires WADC to sell Products to
customers of POS. During the term or any extension of this Agreement, WADC shall
sell a minimum of 3,750 units per 6 month period or POS may re-negotiate the
terms of this License Agreement.
3.3 POS will provide WADC with a written annual forecast, and a written
monthly rolling 6 month forecast. For the calendar year 2000, POS' unit forecast
is 80,000 units of any combination of 3100, XXXX, 0000, and 1500 Products. For
the same period, WADC's unit forecast is 30,000 units of any of said
combination. Additional terms relating to the Forecast Process are set forth in
Exhibit C.
3.4 POS is responsible and shall remain responsible for the Product
design. Any changes that WADC wishes to make to the Product that affect hardware
design, testing and/or Product firmware must be approved in writing by POS prior
to incorporation of such changes in the Product. WADC is hereby licensed to make
customer required Software feature enhancements. Upon execution of this .
Agreement, POS shall supply WADC with a complete set of Product documentation
and Software source code ("Product Information"). WADC may use the Product
Information solely for the following purposes:
(a) to make Software feature enhancements as required by customers;
and
(b) to support on-going manufacturing, Product support, and
continued sales of Products, should POS cease doing business as
an entity or is finally adjudicated a bankrupt under Chapter 7
of the Bankruptcy Act or any similar or successor provision for
the liquidation or dissolution of POS.
4.0 LICENSE FEES.
4.7 Monthly, on the 25th day of each month, on sales by WADC to WADC
customers, WADC shall pay a License Fee to POS in the amounts indicated in Table
I for WADC Unit Sales invoiced during the previous month.
Table I
--------------------------------------------------------------------------------
Product License Fee per WADC Unit Customer
Sale
--------------------------------------------------------------------------------
3100 $81.00 All WADC customers except
Dillards.
--------------------------------------------------------------------------------
3100 $95.00 Dillards
--------------------------------------------------------------------------------
1100 $27.00 All WADC customers
--------------------------------------------------------------------------------
1500 $32.00 All WADC customers
--------------------------------------------------------------------------------
IPOS $135.00 All WADC customers
--------------------------------------------------------------------------------
When WADC Unit Sales per individual Product reach the lifetime totals
listed in Table II, then the License Fees listed in Table I shall be reduced by
the percentage listed in Table II.
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Table II
--------------------------------------------------------------------------------
Lifetime Cumulative Unit Sales Per Percentage decrease of License Fee
Product
--------------------------------------------------------------------------------
50,000 - 99,999 5%
--------------------------------------------------------------------------------
100 000 - 199.999 10%
--------------------------------------------------------------------------------
150,000 plus 15%
--------------------------------------------------------------------------------
4.2 On Product sales by WADC to POS customers, WADC shall pay a License
Fee to POS of the invoiced amount received from the POS customer per POS Unit
Sale minus WADC's cost to procure the Product from UIC, minus the appropriate
License Fee per Table III hereafter set forth, which WADC keeps for its
operational services, charges for special services provided to the customer by
WADC such as installation, special shipping, or Product modifications agreed to
separately between the customer and WADC. These payments shall be made monthly
along with any License Fees due for WADC Unit Sales during the previous month.
POS has expressed its intent to discontinue seeking new customers of its own for
the Products beginning July 1, 2000. The parties agree to generate a mutually
agreed upon list, as soon as possible after the execution of this Letter
Agreement, that will specify the customers /potential customers that will
constitute the complete list of POS customers after July 1, 2000, for which the
License fees will be calculated using Table III. All customers not on the list
will be considered to be WADC customers.
Table III
--------------------------------------------------------------------------------
Product License Fee per POS Unit Sale
--------------------------------------------------------------------------------
1100 $14.00
--------------------------------------------------------------------------------
1500 $16.50
--------------------------------------------------------------------------------
3100 $40.00
--------------------------------------------------------------------------------
IPOS $82.00
--------------------------------------------------------------------------------
4.3 WADC shall keep and maintain at its principal office complete and
accurate records and books of account in sufficient detail and form so as to
enable verification of License Fees payable by WADC hereunder. Such records
and books of account shall be maintained for a period of no less than three (3)
years following the year to which they pertain. WADC shall permit such records
and books of account to be examined, copied and audited by POS or its duly
appointed agent, to the extent necessary for POS to verify the amount of
License Fees payable. Such examination shall be at POS' expense, during normal
business hours, and upon ten (10) days' prior written notice to WADC. If the
audit reveals an underpayment of License Fees payable by WADC to POS by 5% or
more, then, in addition to paying POS the amount of underpayment, WADC will be
responsible for paying for the cost of all reasonable expenses associated with
the audit.
4.4 POS shall keep and maintain at its principal office complete and
accurate records and books of account in sufficient detail and form so as to
enable verification of its obligations to WADC hereunder. Such records and books
of account shall be maintained for a period of no less than three (3) years
following the year to which they pertain. POS shall permit such records and
books of account to be examined, copied and audited by WADC or its duly
appointed agent, to the extent necessary for WADC to verify that POS is meeting
its obligations hereunder. Such examination shall be at WADC' expense, during
normal business hours, and upon ten (10) days' prior written notice to POS. If
the audit reveals an underpayment of License Fees payable by WADC to POS by 5%
or more, then, in addition to paying POS the amount of underpayment, WADC will
be responsible for paying for the cost of all reasonable expenses associated
with the audit.
5.0 PROJECT MANAGERS. Each party shall appoint a project manager who shall
be a
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technically qualified employee of the appointing party to be responsible for
coordinating the efforts of the parties and to amend the work within the scope
of this Agreement. The project managers shall not, however, have the right to
amend this Agreement without the prior written consent of the parties. Either
party may appoint a successor to its project manager or a temporary project
manager by giving notice to the other party. The Project Managers shall issue a
joint quarterly report to the top management of both companies. In addition,
WADC shall have direct access to the POS sales team in order to better
understand the customer demand for the Products.
6.0 MOST FAVORED STATUS.
6.1 If POS licenses anyone else to make, have made, use or sell the
Products, on terms and conditions more favorable to the licensee than the terms
granted to WADC herein, then POS shall offer to amend this Agreement to
incorporate such terms and conditions.
6.2 WADC will be the primary provider of Products to POS' customers, but
POS reserves the right to fulfill orders from another supplier if so requested
by the customer.
6.3 If WADC determines that any hardware licensing agreement by POS with
a third party will have a negative impact upon WADC's success in the marketplace
in selling Products, then WADC may terminate the portion of the Agreement that
requires it to sell Products to POS' customers by giving 180 days notice. All
other terms and conditions shall remain in full force and effect, except that
the License Fees payable by WADC shall be immediately re-negotiated. Such
re-negotiated terms shall continue to be on a most favored basis per Section
6.1, for like terms and conditions. Termination or re-negotiation of License
Fees shall not affect the License Fees payable for any customer orders then
placed, or that are obtained from any written quotes provided to customers prior
to the effective date of any such termination or re-negotiation, unless
specifically agreed upon in writing.
7.0 PURCHASE OPTION. If during the term of this Agreement or any extension
thereof, POS decides that it desires to sell any of the Product lines, or if
POS elects not to renew this Agreement, or if POS discontinues marketing and
maintaining a Product line, then POS shall give WADC advance notice and the
opportunity to negotiate the purchase of said Product line or portion thereof,
and any tooling or other manufacturing items related thereto, at a price and
upon terms to be negotiated by the parties. POS shall not thereafter sell such
Product line or portion thereof to a third party upon terms or conditions that
are more favorable than those offered to WADC, without first offering such
favorable terms to WADC. The purpose and intent of this option is to ensure that
WADC shall be able to adequately continue to produce and support any Products
manufactured or to be manufactured pursuant to this Agreement, and to permit
WADC to continue to market the Products.
8.0 CONFIDENTIAL INFORMATION. Both parties acknowledge that in the course of the
dealings between the parties, each party may acquire information of a highly
confidential and proprietary nature about the other, its business activities,
its technical information and trade secrets, and its product information. Each
party agrees that the Mutual Nondisclosure Agreement dated August 17, 1997
between MobiNetix Systems, Inc. (which changed its name to POS) and Xxxxx Xxxxx,
Inc. (Xxxxx Xxxxx, Inc. has now assigned this agreement to WADC) shall govern
the disclosure and use of all such information, that this such information can
be used during the term of this Agreement only in accordance with such Mutual
Nondisclosure Agreement, and that the term of such Mutual Nondisclosure
Agreement shall be extended to coincide with the expiration of three years after
the expiration of the term or any extension of this Agreement.
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9.0 TERM AND RENEWAL.
9.1 The term of this Agreement shall commence upon the date set forth at
the beginning of this Agreement, and shall continue for 3 years unless earlier
terminated as provided herein. Subject to the termination provisions set forth
below, the term of this Agreement shall thereafter automatically renew unless
one party shall give the other party 120 days written notice prior to the end of
the term or any extension period.
9.2 Either party shall have the right to terminate this Agreement on
written notice to the other if the other (i) commits or suffers any act of
bankruptcy or insolvency; or (ii) fails to cure any material breach in the
provisions of this Agreement within thirty (30) days after receipt of written
notice specifying the nature of the breach or, if the breach is not capable of
being cured within thirty (30) days, where the breaching party fails to commence
the cure within such thirty (30) day period and does not diligently pursue the
cure until completion; or (iii) makes any material certification or warranty in
or pursuant to this Agreement which proves to be false or misleading in any
material respect.
9.3 Upon termination of this Agreement and except as otherwise expressly
provided herein, all licenses granted to WADC under the terms of this Agreement
shall terminate; provided, however, that WADC shall have the right for one year
thereafter to dispose of all hardware Products then in its inventory or for
which it has outstanding obligations to purchase from the third party
manufacturer, and shall pay License Fees thereon, in accordance with the
provisions of Article 4.0, as though this Agreement had not terminated.
9.4 Termination of this Agreement shall not affect any rights or
obligations accrued prior to the effective date of such termination.
9.5 The rights provided in this Article 9.0 shall be in addition and
without prejudice to any other rights which the parties may have with respect to
any breach or violations of the provisions of this Agreement.
9.6 Upon termination or expiration of this Agreement, all confidential
information belonging to one party which is in the hands of the other party
shall be immediately returned to the owner.
10.0 INDEMNIFICATION AND WARRANTS.
10.1 PRODUCT LIABILITY INDEMNIFICATION. POS shall indemnify and hold
harmless WADC against all claims, liabilities, losses, and expenses (including
attorneys fees) incurred, related to, or caused by actual or alleged defects in
the design, of any Products or components thereof designed or improved by POS,
except to the extent that such personal injury, death, or property damage arose
from any negligence of WADC, such as in the handling of the Products or any
misrepresentation by WADC, such as concerning the Product's characteristics,
performance, or proper manner of usage. WADC shall indemnify and hold harmless
POS against all claims, liabilities, losses, and expenses (including attorneys
fees) incurred, related to, or caused by actual or alleged manufacturing defects
of any Products or components thereof or actual or alleged defects in the design
or manufacturing of improvements made to any Products by WADC, or defects in
improvements made to any Products by WADC that were not made at POS' request or
design, except to the extent that such personal injury, death, or property
damage arose from any negligence or misrepresentation of POS.
10.2 PATENT INDEMNIFICATION. POS represents and warrants that the
Products do not infringe any patent held by any third party. If any suit,
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action, or other proceeding is brought against WADC involving any claim that the
use, sale or distribution of the Products, infringes any patent, or other
proprietary property rights, POS shall indemnify and hold harmless WADC from all
costs, losses, expenses, and liabilities, (including attorneys fees) arising
directly or indirectly from any claims of infringement provided that: (i) WADC
promptly notifies POS of the commencement of any action or suit, or threats
thereof, and furnishes POS with all documents in WADC's possession relating
thereto; (ii) the manner in which such action or suit shall be handled or
otherwise disposed shall be at POS' sole discretion, provided the rights of WADC
to engage in activities hereunder are not limited thereby; (iii) WADC agrees not
to take any action or incur any cost with respect to such claim or proceeding
without direction of POS, unless POS fails to respond to such claim or
proceeding in a timely manner, thereby jeopardizing WADC; (iv) POS shall have no
liability for any claim of POS' lack of right, title or interest to the Product
or any claim of copyright or patent infringement (including contributory
responsibility), trade secret violation or violation of other proprietary rights
resulting from (a) use of the Product in combination with other elements, where
the combination and not the Product itself gives rise to the claim; or (b)
modification of the design of the Product by anyone other than POS, if such
modification is the basis of the claim. POS shall pay all damages, costs, or
other monies or relief (including all court costs and attorney fees awarded as
part of the damages) awarded against WADC, or settlement amounts agreed to by
POS, as a result of such action. WADC shall defend and indemnify POS to the same
extent as provided above for POS to indemnify WADC, if a claim is made against
POS that would be covered by this Section if made against WADC and if the sole
basis of such claim is either (i) modification to a Product made by WADC without
POS' written approval; or (ii) use of the Product in combination with other
elements, where the combination and not the Product itself gives rise to the
claim, and WADC actually sold said combination.
10.3 In the event the POS defended litigation is unsuccessful or WADC or
WADC's customer is prevented from using the Product by preliminary or permanent
injunction based on an alleged infringement, at POS' sole option POS shall (i)
obtain the right to continued use of the Product, (ii) substitute other non-
infringing product with substantially the same functionality as the infringing
Product, (iii) replace or modify the Product so that it is no longer infringing,
or (iv) accept the return of Products in exchange for a payment equal to the
purchase price paid by WADC for the infringing Product.
10.4 NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE PRODUCTS OR ANY OTHER GOODS OR SERVICES PROVIDED BY A PARTY UNDER
THIS AGREEMENT.
11.0 INSURANCE. Both parties shall secure and maintain comprehensive general
liability insurance covering each occurrence of bodily injury and property
damage in an amount of not less than $2,000,000 combined single limit with
endorsements for (a) products and completed operations, (b) blanket contractual
liability (deleting any exclusion for products and completed operations
liability), and (c) broad form vendor's liability. Each party shall immediately
furnish to the other party a certificate of insurance issued by the carrier
evidencing the foregoing endorsements, coverage, and limits, and stating that
such insurance shall not be cancelable without at least thirty (30) days written
notice to the other party.
12.0 LIMITATION OF LIABILITY. EXCEPT FOR ANY INDEMNIFICATION PROVIDED IN THIS
AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO SUCH PARTY'S
PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, REGARDLESS OF WHETHER
SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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13.0 REGULATORY MATTERS.
13.1 POS warrants and guarantees, to the best of its knowledge, that all
POS-designed components of the Products shall be in compliance with all
applicable federal, state, and local laws, ordinances, regulations, rules,
declarations, interpretations, and orders in affect in the United States.
13.2 In the event WADC recalls any of the Products sold or distributed
by WADC, due to defects in the design of any Products designed by POS or
improvements made to any Products by or on behalf of POS, then POS shall bear
all costs and expenses of such action (the "Recall Expenses"), including,
without limitation, expenses or obligations to third parties, the costs of
notifying customers, and costs associated with the shipment of recalled Product
to WADC or manufacturer. The parties will cooperate fully with each other in
effecting any recall of the Product, including any communications with any
purchasers or users.
13.3 In the event WADC recalls any of the Products sold or distributed
by WADC, due to a manufacturing defect or defects in improvements made to any
Products by WADC that were not requested or designed by POS, then WADC shall
bear all costs and expenses of such action (the "Recall Expenses"), including,
without limitation, expenses or obligations to third parties, the costs of
notifying customers, and costs associated with the shipment of recalled Product
to WADC or manufacturer. The parties will cooperate fully with each other in
effecting any recall of the Product, including any communications with any
purchasers or users.
14.0 CONFLICTS AND AUTHORIZATIONS. Each party warrants to the other that this
Agreement does not conflict with any other obligations which the party has under
any other agreement and that each party has the authority and has obtained all
authorizations required to enter into this Agreement.
15.0 NOTICES. All notices will be given in writing in the English language.
Notices must be (a) delivered personally, (b) transmitted via facsimile, or (c)
sent by an established overnight courier service to the addresses hereafter
listed. Any change of address must be designated in writing. Notices shall be
effective (a) upon receipt if personally delivered, (b) upon confirmation of
transmission if sent via facsimile, and (c) two business days after mailing if
sent via recognized overnight courier.
If to WADC: Xxxxx Xxxxx Data Collection, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxxx Xxxxx, Xxx Xxxx 00000
Attn.: General Counsel
If to POS: @xxx.xxx, Inc.
0000 Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: VP. Channel Marketing
16.0 AMENDMENTS. No amendment or modification of the terms of this Agreement
shall be binding on either party unless reduced to writing and signed by an
authorized representative of each party.
17.0 EXHIBITS. Each Exhibit attached to this Agreement is deemed a part of this
Agreement and incorporated herein wherever reference to it is made.
18.0 HEADINGS. The section headings used in this Agreement are for convenience
of reference only. They will not limit or extend the meaning of any provision of
this Agreement, and will not be relevant in interpreting any provision of this
9
42
Agreement.
19.0 INDEPENDENT CONTRACTORS. POS and WA are independent contractors and shall
not be construed as having any other relationship. Neither party shall have, or
hold itself out as having, the power or authority to bind or create liability
for the other by its intentional or negligent acts.
20.0 ASSIGNMENT. Neither party may assign this Agreement without the prior
written consent, which may not be unreasonably withheld, of the other party,
except that either party shall be entitled to assign this Agreement to any
person or entity acquiring all or substantially all of its assets.
21.0 FACSIMILE SIGNATURES. If this document is transmitted by facsimile, the
signed facsimile version hereof, as received, shall constitute the original, and
shall be binding on the parties as if it were manually signed. The parties agree
that they may treat and rely upon any signed facsimile version hereof as the
signed original.
22.0 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by a body of competent jurisdiction, such provision will be
construed, limited or, if necessary, severed to the extent necessary to
eliminate such invalidity or unenforceability. The parties agree to negotiate in
good faith a valid, enforceable substitute provision that most nearly effects
the parties' original intent in entering into this Agreement or to provide an
equitable adjustment, if appropriate, in the event no such provision can be
added. The other provisions of this Agreement will remain in full force and
affect.
23.0 NO PUBLICATION. Neither party may publicize or disclose to any third party,
without the written consent of the other party, which will not be unreasonably
withheld, the terms of this Agreement.
24.0 ENTIRE AGREEMENT. This Agreement contains the entire understanding of the
parties with respect to its subject matter and supersedes all prior negotiations
and understandings.
25.0 GOVERNING LAW. This Agreement will be governed in all respects by the laws
of the State of Delaware.
UNDERSTOOD AND AGREED:
XXXXX XXXXX DATA COLLECTION, INC. @XXX.XXX
By: /s/ XXXXX X. XXXX By: /s/ XXXXXX XXXXXXX
--------------------------------- --------------------------------
Xxxxx X. Xxxx
President & COO Print Name: Xxxxxx Xxxxxxx
Title: COO
Date: 1/13/00 Date: 11 Jan 2000
10
43
EXHIBIT A
RESPONSIBILITIES MATRIX
------------------------------------------------------------------------------------------------------------------------------
TYPE RESPONSIBILITY WADC POS NOTES
------------------------------------------------------------------------------------------------------------------------------
TECHNICAL
------------------------------------------------------------------------------------------------------------------------------
Hardware Design -
------------------------------------------------------------------------------------------------------------------------------
H/W Development & Support -
------------------------------------------------------------------------------------------------------------------------------
Component Engineering -
------------------------------------------------------------------------------------------------------------------------------
Software Tools Development & Support
------------------------------------------------------------------------------------------------------------------------------
-SDK -
------------------------------------------------------------------------------------------------------------------------------
-Visual Advantage -
------------------------------------------------------------------------------------------------------------------------------
-PWINIT -
------------------------------------------------------------------------------------------------------------------------------
-Utilities Disk -
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Library for Operating Systems - -
------------------------------------------------------------------------------------------------------------------------------
Product Firmware -
------------------------------------------------------------------------------------------------------------------------------
Special Requests -
------------------------------------------------------------------------------------------------------------------------------
Revision Control -
------------------------------------------------------------------------------------------------------------------------------
Documentation/User Guides -
------------------------------------------------------------------------------------------------------------------------------
IP issues/defense -
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
OPERATIONS
------------------------------------------------------------------------------------------------------------------------------
Manufacturer Relationship -
------------------------------------------------------------------------------------------------------------------------------
Quality Control; Manufacturing -
------------------------------------------------------------------------------------------------------------------------------
Quality Control; Final Product -
------------------------------------------------------------------------------------------------------------------------------
Cost Reductions - -
------------------------------------------------------------------------------------------------------------------------------
Inventory Control -
------------------------------------------------------------------------------------------------------------------------------
Shipping -
------------------------------------------------------------------------------------------------------------------------------
User Guides -
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
SALES
------------------------------------------------------------------------------------------------------------------------------
Pre-Sales - -
------------------------------------------------------------------------------------------------------------------------------
Financing/Credit Approval -
------------------------------------------------------------------------------------------------------------------------------
Order Entry/Promise Dates -
------------------------------------------------------------------------------------------------------------------------------
Forecasting - -
------------------------------------------------------------------------------------------------------------------------------
Post Sales Hardware Support - each party for own customers
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
PRODUCT SERVICE
------------------------------------------------------------------------------------------------------------------------------
Warranty Returns & Repairs -
------------------------------------------------------------------------------------------------------------------------------
Corrective Actions - - Depends on source of identified problem
------------------------------------------------------------------------------------------------------------------------------
Out of Box Failures Analysis - - Depends on source of identified problem
------------------------------------------------------------------------------------------------------------------------------
Non-warranty Returns & Repairs -
------------------------------------------------------------------------------------------------------------------------------
11
44
EXHIBIT B
Kinko's Preliminary
PW1100 PW1100 PW1500 PW3100 Gen PW3100 w/Mem PW3100 Fed IPOSTC
80043-001 A 80043-003 A 80044-001 A PL16000-02 PL16000-03 PL16000-04 60021-002
-----------------------------------------------------------------------------------------------------------------------------------
Unit Price FOB Taiwan (Original quotes) $ 49.29 $ 66.91 $ 73.78 $ 187.88 $ 195.21 $ 195.21 $ 388.68
-----------------------------------------------------------------------------------------------------------------------------------
Revised Adder $ 10.55 $ -- $ 12.83 $ 0.88 $ 0.88 $ 0.88 TBD
-----------------------------------------------------------------------------------------------------------------------------------
New U/P, FOB Taiwan $ 60.14 $ 66.91 $ 86.61 $ 188.76 $ 196.09 $ 196.09 $ 388.68
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Annual Volume for unit price basis 10,000 -- 20,000 50,000 50,000 50,000 50,000
-----------------------------------------------------------------------------------------------------------------------------------
Minimum Run Lot Qty 1,000 500 1,000 1,000 1,000 1,000 1,000
-----------------------------------------------------------------------------------------------------------------------------------
Leadtime Mass Production 12 weeks 12 weeks 12 weeks 16 weeks 18 weeks 16 weeks 20 weeks
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Safety Inventory Fremont/Qty 600 0 500 1000
-----------------------------------------------------------------------------------------------------------------------------------
Safety Inventory Fremont/UP Adder $ 0.50 $ -- $ 0.50 $ 0.82 $ 0.82 $ 0.59 TBD
-----------------------------------------------------------------------------------------------------------------------------------
Total U/P including Xxxx (FOB TWN) $ 60.64 $ 66.91 $ 87.11 $189.58 $ 196.81 $ 196.68 TBD
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
NRE: PCB tooling $ 400 $ 400 $ 400 $ 5,950 $ 6,950 $ 5,950 $ 8,300
-----------------------------------------------------------------------------------------------------------------------------------
NRE: Mechanical tooling xxxx xxxx xxxx $ 1,350 $ 1,350 $ 1,350 xxxx
-----------------------------------------------------------------------------------------------------------------------------------
NRE: Package tooling $ 1,300 $ 1,300 $ 1,300 $ 1,300 $ 1,300 $ 1,300 $ 1,300
-----------------------------------------------------------------------------------------------------------------------------------
Warranty 1 year 1 year 1 year 1 year 1 year 1 year 1 year
-----------------------------------------------------------------------------------------------------------------------------------
Credit Terms X/00 X/00 X/00 X/00 X/00 X/00 X/00
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Packaging: Gift Pack $ 5.10 $ 5.10 $ 5.10 $ 5.10 $ 5.10 $ 5.10 $ 5.10
-----------------------------------------------------------------------------------------------------------------------------------
Packaging: Bulk Pack $ 0.47 $ 0.47 $ 0.47 $ 0.47 $ 0.47 $ 0.47 $ 0.47
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Bulk Pack: Air $ 4.50 $ 4.50 $ 4.50 $ 4.50 $ 4.50 $ 4.50 $ 6.00
-----------------------------------------------------------------------------------------------------------------------------------
Bulk Pack: Sea $ 1.95 $ 1.95 $ 1.95 $ 1.95 $ 1.95 $ 1.95 $ 1.95
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CABLE COSTS ($) WITH MARGIN:
-----------------------------------------------------------------------------------------------------------------------------------
Item 500 500 1K 5K 10K 25K L/T
-----------------------------------------------------------------------------------------------------------------------------------
PF14007-12 RS232 12' Cable (w/margin) $ 3.40 $ 3.10 $ 3.00 $ 2.90 11 weeks
-----------------------------------------------------------------------------------------------------------------------------------
PF14007-20 RS232 20' Cable (w/margin) $ 4.40 $ 4.00 $ 3.85 $ 3.56 11 weeks
-----------------------------------------------------------------------------------------------------------------------------------
PF14008-12 RS485 12' Cable )w/margin) $ 4.35 $ 4.04 $ 3.91 $ 3.75 11 weeks
-----------------------------------------------------------------------------------------------------------------------------------
PF14008-20 RS485 20' Cable (w/margin) $ 5.20 $ 4.73 $ 4.56 $ 4.35 11 weeks
-----------------------------------------------------------------------------------------------------------------------------------
PF14008-30 RS485 30' Cable (w/margin) $ 8.75 $ 8.75 $ 5.77 $ 5.95 $ 5.43 11 weeks
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
AC ADAPTER ($) WITH MARGIN:
-----------------------------------------------------------------------------------------------------------------------------------
80702-001 (PW3100) $ 3.29 $ 2.81 $ 2.81 $ 2.81 7 weeks
air $0.80
-----------------------------------------------------------------------------------------------------------------------------------
80702-005 (PW1100 & 1500) $ 3.29 $ 2.81 $ 2.81 $ 2.81 7 weeks
air $0.80
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
DROP SHIP SERVICE CHARGES:
-----------------------------------------------------------------------------------------------------------------------------------
Item 1-10CTN 11-25CTN 26-50CTN 51-100CTN 100CTN+
-----------------------------------------------------------------------------------------------------------------------------------
Bulk pack $5/CTN $4/CTN $3.6/CTN $3/CTN $2.5/CTN
-----------------------------------------------------------------------------------------------------------------------------------
Individual box package $2/pc $2/pc $2/pc $2/pc $2/pc $2/pc
-----------------------------------------------------------------------------------------------------------------------------------
45
EXHIBIT C
STANDARD TERMS AND CONDITIONS OF SALE ON SALES TO POS'S CUSTOMERS
1. The standard lead times for shipments after receipt by WADG of customer
order ("ARO") shall be as follows:
--------------------------------------------------------------------------------
Product Lead Time for Orders of Lead Time for Orders of 100
less than 100 units or more units
--------------------------------------------------------------------------------
1100 2 weeks ARO 12-14 weeks ARO
--------------------------------------------------------------------------------
1500 2 weeks ARO 12-14 weeks ARO
--------------------------------------------------------------------------------
3100 2 weeks ARO 12-14 weeks ARO
--------------------------------------------------------------------------------
IPOS XXX XXX
--------------------------------------------------------------------------------
2. Credit terms - 30 days, subject to WADC Credit Department approval.
3. Warranty - 1 year from the date of shipment to customer in accordance with
printed warranty.
4. Shipping method - order specific at customer's expense.
5. Forecasting Process (WADC and POS);
(a) POS will provide WADC with a rolling 6 month forecast of its
anticipated requirements detailed by customer and product. This
forecast will be updated and reviewed with WADG on a monthly
basis. At this monthly session, the parties will establish and
sign off on the net anticipated unit requirements for the next 90
days, in 30 day increments, 60 days of which shall be designated
as the "Committed Portion."
(b) WADC will combine this net customer requirement with the WADC
customer forecast, and manage the operations process with the
third party contract manufacturer.
(c) Liabilities:
(i) WADC is responsible for managing the operations process and
accountable for commitments made in support of the WADC
forecast of Product needs.
(ii) POS is responsible for the Committed Portion of the Product
forecast. If POS customer orders are not received by WADC
that consume each Committed Portion, and WADC is not able
to either defer the delivery of or consume the excess
inventory for WADC Customers for any unused Committed
Portion during
12
46
the applicable forecast period, then POS will be responsible to pay to WADC, and
WADC will invoice POS a 1% monthly carrying charge for any nonconsumed inventory
of a Committed Portion remaining in the WADC inventory, until said Committed
Portion is either consumed through sales to POS's customers or directly paid for
in full by POS.
13
47
Exhibit F
Source Code Non-Disclosure Agreement
48
NON TERMINAL SOURCE CODE
DISCLOSURE AGREEMENT
Effective Date:
--------------
In order to protect certain Confidential Information, Xxxxx Xxxxx Data
Collection, Inc. ("WADC") and the "Participant(s)" identified below, agree that:
1. Disclosing Party: The party disclosing Confidential Information is: WADC.
2. Representatives: Each party's representative for coordinating disclosure or
receipt of Confidential Information is:
WADC:
-----------------------------
Participant:
----------------------
3. Description of Confidential Information: The fact that the parties have
entered into this Agreement, or that there is any relationship between the
parties, is Confidential Information. In addition, the Confidential Information
disclosed under this Agreement is described as follows: All Source Code for any
Software and/or Firmware distributed to Participant(s) with Financial
Transaction Products.
4. Use of Confidential Information: The party receiving Confidential
Information ("Recipient") shall not disclose or make use of the Confidential
Information in any way, except for the following purpose: Source Code may be
used only as required to enable use of Financial Transaction Products, and
Recipient agrees not to otherwise use, disclose, distribute or incorporate all
or any part of such Source Code in or with any other work or product.
5. Confidentiality Period: Recipient's duty to protect Confidential
Information expires five (5) years from the date of termination of WADC License
Agreement with Participant. Recipient agrees to return all Confidential
Information to WADC upon written request.
6. Disclosure Period: This agreement pertains to Confidential
Information described in Paragraph 3 that is disclosed between the Effective
Date and the termination of the WADC License Agreement.
7. Standard of Care: Recipient shall protect the disclosed Confidential
Information by using the same degree of care, but no less than its best efforts,
to prevent the unauthorized use, disclosure, dissemination or publication of the
Confidential Information as Recipient uses to protect its own Confidential
Information of a like nature. Recipient shall not reproduce, provide, or
otherwise make available any Confidential Information to any person other than
those of its employees who have a need to know consistent with Recipient's
authorized use of such information. Recipient shall not provide access to the
Confidential Information to any third parties and shall not remove the
Confidential Information from its principal place of business. Recipient agrees
that it will take appropriate action by instruction and similar non-disclosure
agreements with its employees permitted access to Confidential Information to
satisfy its obligations with respect to the use, copying, security, and
protection of the Confidential Information.
8. Marking: Recipient's obligations shall only extend to Confidential
Information that is described in Paragraph 3 that is: (a) identified as Source
Code, (b) marked as confidential at the time of disclosure, or (c) unmarked
(e.g., orally disclosed) but identified as confidential at the time of
disclosure and is confirmed as Confidential Information in a writing sent to
Recipient's representative within thirty days of disclosure.
9. Exclusions: This Agreement imposes no obligation upon Recipient with respect
to information that: (a) was rightfully in Recipient's possession before receipt
from Disclosing Party; (b) is or becomes public knowledge through no fault of
Recipient or Recipient's employees; (c) is rightfully received by Recipient from
a third party without restriction and without breach of this Agreement; or (d)
is disclosed under operation of law.
10. Warranty: Each Disclosing Party warrants that it has the right to make the
disclosures under this Agreement. NO OTHER WARRANTIES, INCLUDING WARRANTIES
AGAINST INFRINGEMENT, ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY
INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."
11. Rights: Recipient acknowledges that all Confidential Information disclosed
by WADC is solely owned by WADC or its suppliers. Neither party acquires any
intellectual property rights under this Agreement except the limited rights
necessary to carry out the purposes set forth in Paragraph 4. This Agreement
shall not restrict reassignment of Recipient's employees.
MISCELLANEOUS.
12. This Agreement imposes no obligation on either party to purchase, sell,
license, transfer or otherwise dispose of any technology, services or products.
13. Both parties shall adhere to all applicable laws, regulations, and rules
relating to the export of technical data, and shall not export or re-export any
technical data, any products received from Discloser, or the direct product of
such technical data to any proscribed country listed in such applicable laws,
regulations and rules unless properly authorized.
14. The parties are independent contractors.
15. If this document is transmitted by facsimile, the facsimile version of
this, as received, shall constitute the original, and shall be binding on the
parties as if it were manually signed. The parties agree that they may trust
and rely upon any facsimile version hereof as the signed original.
16. This Agreement embodies the entire understanding between the parties
pertaining to the subject matter hereof. Any additions or modifications to this
Agreement must be made in writing and must be signed by both parties.
17. This agreement is made under, and shall be construed according to, the
substantive laws of the State of New York.
UNDERSTOOD AND AGREED:
XXXXX XXXXX DATA COLLECTION, INC.
By:
----------------------------------
PARTICIPANT:
-------------------------
By:
----------------------------------
Print
Name, Title:
-------------------------
