Exhibit 10.39
STRATEGIC ALLIANCE AGREEMENT
This Agreement ("Agreement") is effective as of October 15, 2002 ("Effective
Date") by and between ZiLOG, Inc., a Delaware corporation having a place of
business at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 ("ZiLOG"), and USA Technologies,
Inc., a Pennsylvania corporation having a place of business at 000 Xxxxx Xxx.,
Xxxxx, XX 00000-0000 ("USAT") (each individually a "Party" and collectively, the
"Parties").
Whereas:
(A) ZiLOG is a semiconductor company and has developed a web-enabled processor
that may be used in the retail point of sale market;
(B) USAT has developed cashless payment technology, including credit or debit
card payment technology as well as associated financial network systems,
including its e-PortTM credit/debit card payment technology; and
(C) The Parties wish to establish a strategic alliance pursuant to which they
will collaborate on certain projects including, (a) the design and
development of a point of sale ("POS") reference design and development kit
to be marketed by ZiLOG and (b) an eZ80 based e-port POS terminal to be
marketed by USAT to its markets, based on a combination of ZiLOG's
technology and expertise and USAT's technology and expertise.
NOW THEREFORE, in consideration of the premises and mutual covenants contained
herein, the sufficiency and adequacy of which are acknowledged, and intending to
be legally bound, the Parties agree as follows:
ARTICLE 1 - DEFINITIONS
Unless defined elsewhere in this Agreement, capitalized terms shall have
the meanings set forth in this Article 1:
"Confidential Information" means, with respect to a Party, all proprietary
or confidential material or information relating thereto obtained in
connection with this Agreement. Confidential Information shall include all
communications or data in any form including, without limitation, oral,
written, graphic, electronic or electromagnetic form, which contain any
information related to the disclosing Party and/or its products and/or its
business including, without limitation, processes, patents, technology,
know-how, techniques, improvements, inventions, business plans and
strategies, marketing plans, product plans, trade secrets, customer lists,
supplier lists, transaction methods and relationships between the
disclosing Party and other entities, clients, financial records or
information, phone numbers, addresses, security records and methods,
formulas, development and marketing methods, designs, design practices,
product or material sources and relationships, potential customers and
listings, employee information (including, without limitation, employee
identification, job titles, job duties and compensation), or contractor
information, any information learned by the receiving Party in the process
of examining any informa
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tion supplied by the disclosing Party, and any other information of any
nature and in any form disclosed to the receiving Party by the disclosing
Party or learned by the receiving Party, which relates to or is useful in
the disclosing Party's current or anticipated future business operations.
However, Confidential Information shall not include any information or
material that: (a) is generally known or becomes generally known to the
public without impropriety; (b) was independently developed by the
receiving Party without impropriety; (c) is received from a Third Party who
obtained such information without im propriety; or (d) whose disclosure is
compelled by law; provided that any such disclosure shall not otherwise
affect the confidential nature of any such information.
"Intellectual Property" means all patents, patent applications, patented
and unpatented inventions, design rights, copyrights (including, without
limitation, rights in computer software), know-how and other trade secret
rights, and all other intellectual property rights and the rights or forms
of protection of a similar nature or having equivalent or similar effect to
any of these rights (whether or not any of these rights is registered, and
including, without limitation, applications for registration of, and rights
to apply for, any such rights). In the case of patent applications and
patents, Intellectual Property shall also include all existing and future
provisional and utility applications, continuations, divisionals,
continuations-in-part, reissues, reexaminations, foreign counterparts, and
any other patent application or patent derived therefrom or claiming
priority thereto.
"Joint Intellectual Property" means any Intellectual Property in or
associated with the Joint Technology, exclusive of the ZiLOG Intellectual
Property and the USAT Intellectual Property.
"Joint Technology" means Technology that: (a) is related to the subject
matter of this Agreement; (b) is developed during the Term of this
Agreement; and (c) is jointly developed by employees of ZiLOG and USAT.
"Person" means any individual, entity, firm, corporation, partnership,
association, limited liability company, joint-stock company, trust or
unincorporated association.
"POS Reference Design" means the POS reference design, as more particularly
described in Appendix A, as amended from time to time by the Parties.
"POS Development Kit" means the POS development kit, as more particularly
described in Appendix A, as amended from time to time by the Parties.
"Technology" means any tangible or intangible product, process, article of
manufacture, work of authorship, data, information software, hardware, or
other technological subject matter.
"Third Party" means a Person other than USAT and ZiLOG.
"USAT Intellectual Property" means all the Intellectual Property in or
associated with the USAT Technology.
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"USAT Software" means any proprietary software owned or created by USAT as
more particularly described in Appendix D as modified from time to time.
"USAT Technology" means Technology related to the subject matter of this
Agreement that is: (a) owned or controlled by USAT prior to the Effective
Date; (b) developed or acquired by USAT outside of, or independently of,
this Agreement; or (c) developed by either Party during the Term of this
Agreement but which primarily constitutes a modification, improvement, or
enhancement of, or is otherwise predominantly based on, a USAT Technology.
For example and without limitation, USAT Technology shall include USAT
Software that either predates or is developed outside or independently of
this Agreement, as well as any Technology that is primarily a modification,
improvement, enhancement thereof or based predominantly thereon.
"ZILOG Intellectual Property" means all the Intellectual Property in or
associated with the ZiLOG Technology.
"ZiLOG Technology" means Technology related to the subject matter of this
Agreement that is: (a) owned or controlled by ZiLOG prior to the Effective
Date; (b) developed or acquired by ZiLOG outside of, or independently of,
this Agreement; or (c) developed by either Party during the Term of this
Agreement but which primarily constitutes a modification, improvement, or
enhancement of, or is otherwise predominantly based on, a ZiLOG Technology.
For example and without limitation, ZiLOG Technology shall include ZiLOG's
Technology associated with the eZ80 that either predates or is developed
outside or independently of this Agreement, as well as any Technology that
is primarily a modification, improvement, enhancement thereof or based
predominantly thereon.
ARTICLE 2 - RETAIL POS
2.1 POS Reference Design and Development Kit . The Parties shall use
commercially reasonable efforts to jointly design and develop the POS
Reference Design and POS Development Kit.
2.2 Resources. Each Party shall provide at least two equivalent full time
employees whose principal focus shall be the completion of the POS
Reference Design and the POS Development Kit. The selection of any
such employees shall be in the sole discretion of each Party and may
be changed at the discretion of the employ ing Party by notifying the
other Party. The functional capabilities that will be provided by each
Party are more particularly described on Appendix B.
2.3 Launch Date. Each Party shall use commercially reasonable efforts to
Complete the POS Reference Design and POS Development Kit by March 1,
2003 (the "First Kit"). ZiLOG shall be primarily responsible for
packaging and commercial readiness of the POS Development Kit and POS
Reference Design. For purposes of this Section 2.3, "Complete" shall
mean (a) the POS Reference Design and
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POS Development Kit are in form and substance satisfactory to ZiLOG,
as more particularly described in Appendix C and (b) the Parties will
have delivered a single complete POS Development Kit with all of the
necessary parts and components.
2.4 Additional Development Kits. After the production of the First Kit,
each Party shall be responsible for the production and costs of any
additional POS Development Kits that it needs.
2.5 Cooperation. Each Party shall use commercially reasonable efforts to
facilitate the other Party's efforts with respect to the completion of
the POS Reference De sign and the POS Development Kit.
ARTICLE 3 - eZ80 BASED E-PORT POS TERMINAL
3.1 Commencement Date. USAT shall commence development of an eZ80 based
eport POS terminal ("eZ80 Eport") by the later of (a) ninety (90) days
from the Effective Date and (b) thirty (30) days from the release of
the relevant eZ80 chip necessary for the development of the eZ80 eport
(the "Commencement Date").
3.2 Completion. USAT shall use commercially reasonable efforts to complete
and release the eZ80 Eport within sixty (60) days of the Commencement
Date (the "Completion Date"). The Completion Date may be extended to
the extent that any delay in the completion of the POS Reference
Design materially affects the Completion Date. 3.3 Responsibilities.
USAT shall be solely responsible for all work and expenses as sociated
with the development and completion of the eZ80 eport except that Zi
LOG shall provide the usual and customary support and services that it
would or dinarily provide to customers designing products that
incorporate ZiLOG prod ucts. 3.4 eZ80 Terms and Conditions. ZiLOG
shall sell any eZ80 family of products to be used with respect to the
eZ80 eportal to USAT at the best available prices based on the volume
of purchases by USAT. All other terms and conditions for the sales of
the eZ80 family of products shall be at ZiLOG's usual terms (as
modified from time to time), as more specifically described on
Appendix F.
3.5 eZ80 eporty Ownership. The eZ80 eport shall be USAT Technology;
provided that USAT shall not acquire any ownership or other interest
in any ZiLOG Technol ogy used in the eZ80 eport
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ARTICLE 4 - MARKETING
4.1 POS Development Kits. ZiLOG shall have the right to sell or otherwise
distribute POS Development Kits to its customers during or after the
term of this Agree ment. The sale of the POS Development Kits shall
include all licenses necessary for use in, and during, the customer's
design process, including, any licenses in connection with the USAT
Software. If any such customer wishes to license the USAT Software for
its production phase, then such customer shall be required to obtain a
license in accordance with Section 4.3.
4.2 Licenses. Both Parties shall have the right to license the POS
Reference Design on whatever terms each Party may determine in its
sole discretion. The Party li censing the POS Reference Design shall
be entitled to retain any revenue derived from such a license. The
licensing of the POS Reference Design shall include all licenses nec
xxxxxx for use in, and during, the customer's design process,
including, any licenses in connection with the USAT Software. If any
such customer wishes to license the USAT Software for its production
phase, then such customer shall be required to obtain a license in
accordance with Section 4.3.
4.3 USAT Licenses. USAT shall license the USAT Software to any ZiLOG
customer on the terms set forth on Appendix E as modified from time to
time; provided that such terms shall at no time be less favorable than
the terms offered by USAT to its best customers.
4.4 Marketing Plan. ZiLOG shall offer the POS Development Kits and POS
Refer ence Design to its customers in the retail point of sale
markets. USAT shall mar ket the eZ80 sport to its target markets,
including the vending market and office equipment market. Each Party
shall prepare and share with the other Party its marketing plan in
connection with the foregoing.
ARTICLE 5 - PROPRIETARY RIGHTS
5.1 Ownership by USA . USAT shall solely own the USAT Technology and USAT
Intellectual Property. To the extent necessary to achieve the
foregoing, ZiLOG hereby quitclaims and assigns to USAT any ownership
interest that ZiLOG may have in the USAT Technology and the USAT
Intellectual Property, and agrees to take any steps, and perform any
acts, necessary to perfect USAT's title thereto.
5.2 Ownership by ZiLOG. ZiLOG shall solely own the ZiLOG Technology and
ZiLOG Intellectual Property. To the extent necessary to achieve the
foregoing, USAT hereby quitclaims and assigns to ZiLOG any ownership
interest that USAT may have in the ZiLOG Technology and the ZiLOG
Intellectual Property, and agrees to take any steps, and perform any
acts, necessary to perfect ZiLOG's title thereto.
5.3 Joint technology
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(a) Minimal Applicability. Notwithstanding anything to the contrary,
it is un derstood that:
(i) Joint Technology, ZiLOG Technology and USAT Technology are
all mutually exclusive; and In the event that any Technology
could plausibly constitute Joint Technology and either ZiLOG
Technology or USAT Technology, such Technology will be
deemed to constitute either ZiLOG Tech nology or USAT
Technology but not Joint Technology.
(b) License Grant. To the extent that making, using, selling,
offering to sell, importing, displaying or performing the Joint
Technology would other wise require a license under a Party's
Intellectual Property, that Party hereby grants to the other
Party a worldwide, perpetual, irrevocable, non exclusive,
royalty-free license (without the right to sublicense except to
its Customers) under the granting Party's Intellectual Property
to make, use, sell, offer to sell, import, publicly display, or
publicly perform the Joint Technology.
5.4 Ownership of Joint Technology The Parties shall jointly own any
Joint Technology (including any Joint Intellectual Property). The
Parties recognize that joint ownership of the Joint Intellectual
Property does not, by itself, imply any license under the
Parties' separate Intellectual Property, which license may be
required to use the Joint Technology.
5.5 Third Party Intellectual Property. Neither Party shall
intentionally and knowingly incorporate any Technology or
Intellectual Property belonging to or controlled by any Third
Party in the Joint Technology, or require the use of such Third
Party's Intellectual Party in such Joint Technology, unless: (a)
the Party seeking to in corporate such Third Party Intellectual
Property has a license to such Third Party's Intellectual
Property (including the right to sublicense to the other Party
and its Customers); (b) obtains for the other Party (and its
customers) a license thereunder; or (c) obtains the other Party's
permission to incorporate such Third Party's Intellectual
Property into such Joint Technology.
5.6 Patent Applications.
5.6.1 Notification. When either Party develops any invention that
might constitute, include or be included within the other
Party's Intellectual Property, the developing Party shall
provide the other Party with written notice thereof.
5.6.2 Separate Intellectual Property Each Party shall have the
sole right to file, and be fully responsible for, the
prosecution of any patent applications relating to its own
Intellectual Property.
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5.6.3 Joint Intellectual Property. The Parties shall take all
commercially reasonable action to protect the Joint
Intellectual Property, including protecting all copyrights,
trademarks, patents, and trade secrets under applicable law.
In this regard, the Parties shall confer with each other and
decide how to pursue protection for any Joint Intellectual
Property and how to allocate the costs and filing
responsibilities between them. The Parties recognize: (1)
that in situations where each Party makes an inventive
contribution to at least one claim of a patent, the Parties
will by operation of law be considered joint inventors under
the patent, even where the Parties made unequal
contributions thereto; (ii) that such joint inventors will
by operation of law be considered joint owners of the entire
patent, including those claims that were "invented" solely
by one Party; (iii) that such joint ownership set forth in
(ii) would be inconsistent with the terms and conditions of
this Agreement because claims "invented" solely by one Party
should be that Party's Intellectual Property; but (iv) that
the inconsistency set forth in (iii) cannot be resolved by
partitioning ownership of the patent on a claim-by-claim or
field-of-use basis (because such partitioning is contrary to
law).
Therefore, in order to facilitate the intent of this
Agreement as expressed in this Article 5, neither Party
shall unilaterally file any patent application: (a)
containing any claim which, if it had been filed alone and
apart from any other claim in the application, would
constitute Joint Intellectual Property; or (b) claiming any
invention that is supported by a disclosure involving the
other Party's Technology or Intellectual Property; rather,
the Parties shall meet to allocate filing and prosecution
responsibilities prior to filing any such application.
In the event a Party violates this Section, the other Party
shall have the right, in addition to any other remedies
available to it, to seek injunctive or other equitable
relief to en oin such acts, it being specifically
acknowledged by the Parties that any other remedies may be
inadequate.
5.7 Publications. Before either Party submits papers or abstracts for
publication or otherwise publicly discloses subject matter (including
research or development results) relating to Joint Technology, Joint
Intellectual Property, or the other Party's Technology or Intellectual
Property, such Party shall inform the other Party, and provide the
other Party with a copy of the proposed submission or dis closure, at
least one (1) month before such submission or disclosure. Upon re
quest of the informed Party, the informing Party shall delay the
publication or dis closure for up to three (3) months in order to
allow the informed Party sufficient time to protect its patent rights
or other Intellectual Property rights, both in the United States and
abroad.
5.8 Defense of Joint Technology
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5.8.1 Joint Defense. The Parties agree to take all actions necessary,
including litigation, to defend any Joint Technology (including
any Joint Intellectual Property), the Parties shall agree on a
mutually acceptable defense strategy (a "Joint Defense"). Each
Party shall share equally in all related third party costs and
expenses (including legal fees) arising in connection with any
such Joint Defense (the "Joint Defense Costs"). Subject to
Section 4.8.2, any recovery (a "Recovery") from such a Joint
Defense shall be shared equally by the Parties.
5.8.2 Failure to Pay. If either Party fails to pay its share of the
Joint Defense Costs (the "Defaulting Party"), then the
non-defaulting Party shall have the right, but not the
obligation, to make any necessary payments on behalf of the
Defaulting Party. The non-defaulting Party shall be fully
reimbursed for any such payments plus interest of 10% per annum
on the amount of such payments (collectively, the "Payment
Reimbursement") before the Defaulting Party shall be entitled to
its share of any recovery; provided, that the non-defaulting
Party shall be entitled to deduct and setoff any such Payment
Reimbursement from any related Recovery. In addition, for so long
as the Defaulting Party is in default of any such payment
obligations (including any prior and outstanding Payment
Reimbursements), the non-defaulting Party shall have the right to
make all decisions with respect to the Joint Defense.
5.9 Use of Other Party's Marks. Each Party shall submit to the other Party
for its approval all promotional and advertising material that uses
the other Party's name, trademarks, brands or logos, prior to any
public or commercial use of such material.
ARTICLE 6 - REVENUE FROM JOINT TECHNOLOGY
6.1 Revenue from Joint Technology. The Parties agree that any Net Revenue
gener- ated by the licensing or sale of any Joint Technology, other
than through the mar keting or sale of the POS Reference Design and
the POS Development Kits, shall be shared equally. For purposes of
this Article 5, "Net Revenue" means gross revenue less all actual
direct costs and expenses associated with any such licens ing or sale
of Joint Technology and specifically excludes the cost of overhead,
the Party's sales force, sales commissions and other such indirect
costs.
6.2. Quarterly Payments. Any share of the Net Revenue due to the other
Party shall be paid within 45 days after the end of each quarter and
shall be accompanied by a full accounting of the payment, including
the gross revenue and any direct costs and expenses deducted in
determining the Net Revenue.
6.3 Audit. Each Party (the "Auditing Party") shall have the right to audit
the other Party's books and records in connection with any Net Revenue
upon reasonable notice and at reasonable times but no more frequently
than twice per calendar
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year. The cost of any such audit shall be borne by the Auditing Party,
unless the audit reveals discrepancies in favor of the Auditing Party
in excess of 10% above the amount previously paid to the Auditing
Party. In this case, the full cost of such audit shall be borne by the
other Party.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES; PERFORMANCE
7.1 Representation and Warranties. NEITHER PARTY MAKES ANY REPRESENTATIONS
OR WARRANTIES WITH REGARD TO THE PERFORMANCE OF ANY OF ITS OBLIGATIONS
UNDER THIS AGREEMENT. EACH PARTY HEREBY DISCLAIMS ANY WARRANTIES OF
ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT
LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR ERROR-FREE PERFORMANCE (WHETHER OR NOT THE ERROR IS
DISCOVERABLE).
7.2 Performance. Each Party shall:
(a) Use commercially reasonable skill and care in the performance of
its obligations;
(b) Document its activities related to the activities under this
Agreement by maintaining a properly witnessed, hardbound
laboratory notebook (to the extent applicable) accessible to the
other Party upon request;
(c) Perform its obligations under this Agreement in conformance with
the standards generally observed in the industry for similar
services, at the time of such performance; and
(d) Perform its obligations in accordance with any due date agreed
between the Parties or, in any event, in a timely and
professional manner.
ARTICLE 8 - TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the Effective Date and shall
continue in force for five years and shall automatically be renewed
for one year periods unless notified by the other Party no less than
60 days prior to end of the current year that it does not wish to
renew this Agreement or earlier terminated pursuant to this Article 8
or Section 11.2 (the "Term").
8.2 Termination for Breach. Each Party shall have the right, without
prejudice to its other rights or remedies, to terminate this Agreement
immediately by written notice to the other Party if the other Party:
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(a) Has materially breached any of its obligations under this
agreement and either the breach is incapable of remedy or the
other Party shall have failed to remedy that breach within thirty
(30) days after receiving written notice requiring it to remedy
that breach;
(b) Becomes bankrupt, insolvent or subject to an order for
liquidation, ad ministration, winding-up or dissolution; or
(c) Makes any assignment for the benefit of creditors.
This right of termination is in addition to any right that the
terminating Party may have to claim damages or seek any other legal or
equitable remedies.
8.3 Termination for Convenience. Either Party may terminate this Agreement
with out cause at any time upon two (2) months written notice to the
other Party. 8.4 Survival. The following provisions shall survive
expiration or termination of this Agreement for any reason:
(a) Articles 4, 5, 6, 8, 9 and 10; and
(b) any provision that plainly indicates that it should survive.
ARTICLE 9 - LIMITATIONS ON LIABILITY
9.1 Generally. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
DIRECT, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES, INCLUDING LOSS OF
BUSINESS, PROFITS OR GOODWILL, WHETHER ARISING FROM NEGLIGENCE, BREACH
OF CONTRACT OR OTHERWISE, EVEN IF SPECIFICALLY INFORMED OF OR
OTHERWISE HAVING A REASON TO KNOW, OF THE LOSS OR DAMAGE.
9.2 Damage to Persons or Property . Neither Party shall make any claim
against, or be liable to, the other Party with respect to any injury,
death, damage, or loss to per sons or property involved in operations
undertaken pursuant to this Agreement, whether such injury, death,
damage, or loss arises through negligence or other wise.
9.3 Delayed Performance. Neither Party shall make any claim against the
other Party for damages or other for any delay (including a deferral,
suspension or postpone ment) in the performance of any of its
obligations under this Agreement.
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ARTICLE 10 - CONFIDENTIALITY
Except as specifically authorized herein, neither Party shall disclose or
use for any purpose outside the scope of this Agreement, any Confidential
Information acquired or learned by such Party (including its employees,
directors, officers, agents and/or contractors) from or about the other
Party, except with such other Party's prior written permission. In the
event that a Party is compelled by law to disclose Confidential Information
of the other Party, such Party shall provide the other Party with notice of
such compelled disclosure and a reasonable opportunity to contest it and
shall seek a protective order. In the event a Party seeks to divulge or
otherwise improperly use any such Confidential Information, the other Party
shall have the right right in addition to any other remedies available to
it, to seek injunctive or other equitable relief to enjoin such acts, it
being specifically acknowledged by the Parties that any other remedies may
be inadequate. Upon expiration or termination of this Agreement for any
reason, each Party shall return any Confidential Information of the other
Party (which may include that Party's Technology or Deliverables) to the
other Party; provided that each Party may keep one copy of any such
Confidential Information for compliance or litigation purposes so long as
it is kept confidential in accordance with this Agreement. Any unauthorized
submission or disclosure, in violation of Section 5.7, shall be considered
a breach of this Article 10. This Article 10 shall survive any termindation
of this Agreement.
ARTICLE 11 - MISCELLANEOUS
11.1 Relationship Between the Parties. The Parties are independent
contractors to each other, and nothing in this Agreement shall be
deemed to create an employment, partnership, or agency relationship.
11.2 Force Neither Party shall be liable to the other for any delay or
nonperformance of its obligations under this Agreement arising from
any cause beyond its reasonable control including, without limitation,
any of the following: act of God, governmental act, war, fire, flood,
explosion, accident, civil commotion, labor stoppage or impossibility
of obtaining materials. Subject to the affected Party promptly
notifying the other Party in writing of the cause and the likely
duration of the cause, the performance of the affected Party's
obligations, to the extent affected by the cause, shall be suspended
during the period that the cause persists provided that, if
performance is not resumed within two (2) months after the date of
that notice, the other Party may by notice in writing terminate this
Agreement with immediate effect, notwithstanding any obligations of
the Parties under this Agreement.
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11.3 Assignment. Except as authorized herein, neither Party shall assign,
transfer (whether by operation of law or otherwise) or otherwise part
with any of its rights, or delegate or subcontract any of its duties
or obligations under this Agreement, without the prior written consent
of the other Party, except that, upon notice to the other Party,
either Party may assign or transfer its rights, duties, and
obligations under this Agreement to a wholly owned subsidiary, or to a
Third Party acquiring the whole or a majority of its stock, assets, or
intellectual property, pertaining to the subject matter of this
Agreement, without the consent of the other Party. This Agreement
shall be binding on and inure to the benefit of any heirs, permitted
assignees, permitted transferees, or permitted successors.
11.4 Waivers. A waiver (whether express or implied) by either Party of any
of the provisions of this Agreement or of any breach of or default by
the other Party in performing any of those provisions shall not
constitute a continuing waiver and that waiver shall not prevent the
waiving Party from subsequently enforcing any of the provisions of
this Agreement not waived or from acting on any subsequent breach of
or default by the other Party under any of the provisions of this
Agreement.
11.5 Amendments. Except as authorized herein, no amendment, waiver or
variation of this Agreement shall be binding on the Parties unless set
out in writing, expressed to amend this Agreement and signed by or on
behalf of each of the Parties.
11.6 Severability. The invalidity, illegality or unenforceability of any of
the provisions of this Agreement shall not affect the validity,
legality and enforceability of the remaining provisions of this
Agreement.
11.7 Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof, and
supersedes all previous agreements and understandings between the
Parties. Except as authorized herein, this Agreement may not may be
modified except via a writing signed by both Parties.
11.8 Governing Law and Jurisdiction. This Agreement is governed by and
shall be construed in accordance with the laws of the State of New
York, without giving effect to its choice of laws provisions. Each
Party submits to the jurisdiction and venue of the Federal courts
located in New York County, New York, for all purposes relating to
this Agreement.
11.9 Notices. All notices, consents, requests, demands or other legal
communications between the respective Parties shall be in writing and
shall be effective for all purposes upon receipt, including without
limitation, in the case of: (i) personal delivery; (ii) delivery by
messenger, express or air courier or similar courier; (iii) delivery
by United States first class certified or registered mail, postage
prepaid; (iv) transmittal by telecopier or facsimile and confirmed by
the recipient; or (v) transmittal by e-mail, if addressed as follows:
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If to USAT: 000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Att: H. Xxxxx Xxxxx,
Senior Vice President
(000) 000-0000 (Voice)
(000) 000-0000 (fax)
E-mail: xxxxxxxx@xxxxxxx.xxx
If to ZiLOG: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Att: Senior Vice President,
System Development
(000) 000-0000 (voice)
(000) 000-0000 (fax)
E-mail: xxxxxxxxx@xxxxx.xxx
Either Party may change its address by written notice to the other in
the manner set forth above. Receipt of communications sent under (iii)
or (iv) of this Article will be sufficiently evidenced by return
receipt. In the case of illegible or otherwise unreadable facsimile
transmissions, the receiving Party shall promptly notify the
transmitting Party of any transmission problem and the transmitting
Party shall promptly resend any affected pages.
10.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and
counterpart signature pages may be assembled to form a single original
document.
10.11 Headers. The headings in this Agreement shall not affect its
interpretation.
In witness whereof, the Parties have executed this Agreement on the dates set
forth below.
Zilog INC. USA TECHNOLOGIES, INC.
By /S/ Xxxx Xxxxxx By /S/ Xxxxxxx X. Xxxxxxx
-------------------------- ----------------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President Title: President
Date: 10/15/02 Date: 10/15/02
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Appendix A
POS REFERENCE DESIGN
&
POS DEVELOPMENT KIT
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Zilof/Usa Technology DRAFT - Appendix A
POS Development Kit Description
The POS Development Kit will be composed of two major components shown in Figure
1; the ereference design (A) and the POS peripheral board (B).
(Graphic Omitted)
Figure 1 - e-PortTm reference design and POS peripheral board
e-PortTm REFERENCE DESIGN:
--------------------------
With respect to the e-PortTm reference design, ZiLOG and USA will focus on
developing a low cost e-PortTm reference design targeted at the economy
(low-end) POS market. The e-port reference design will initially include the
following functionality:
1) Utilize ZiLOG eZ80Tm processor technology;
2) An "out-of-the-box" limited use version of USAlive TM (non-web-based
version) for testing, and prototyping as well as be capable of accessing
the web enabled version of the USALiveTm network
a) Will utilize USA's turnkey banking process;
b) Will be networked to USA's USALiveTm network;
3) e-Port'rm test software
POS PERIPHERAL BOARD.
---------------------
With respect to the POS peripheral board, ZiLOG and USA will focus on
creating a peripheral board, which can showcase the features of the e-PortTm
reference design and also provide the standard peripherals and communication
interfaces required for the point-of-sale market.
15
The POS peripheral board will initially include the following:
1) Connector for e-PortTm reference design
2) Footprint for communication modules
3) Connector for hybrid card reader
4) Footprint for 2x16 LCD screen
5) Serial interface
6) Printer interface
7) Keypad interface
8) Power supply
9) Jtag or Zdi debug connector
10) Connector for eZ80Tm Webserver development platform
The POS Development Kit will contain the following:
---------------------------------------------------
1) e-PortTm REFERENCE DESIGN
2) POS PERIPHERAL BOARD - Items I and 2 combine to comprise the development
board
3) Test Cards - for card reader
4) Assigned Merchant ID Number
5) Development Tools
a) Embedded Software Design tools - ZDS H
6) Example application
a) Instruction Manual to make application work
7) Development Board Drivers
8) PC applications
a) Software that runs on the PC to authenticate a transaction
b) Terminal configuration software
c) Common development tools
9) USALive network software
10) Necessary cables, connectors, and power supplies.
00
Xxxxxxxx X
EMPLOYEE FUNCTIONAL CAPABILITIES
17
The POS Development Kit will be composed of two major components shown in Figure
I of Appendix A; the ePortTm reference design (A) and the POS peripheral board
(B). Below is a list of major tasks for creating the ePor Tm reference design,
POS peripheral board, software, and kit release.
Ref. Design and Peripheral Board
Ref Design Hardware
Schematic Pinout USAT Board Design
Verification Engineer USAT Board Design Engineer
Interface Debug USAT Embedded Systems Engineer
Functional Testing USAT Embedded Systems Engineer
Documentation delivery USAT Embedded Systems Engineer
PCB PCB Layout ZiLOG PCB Layout Designer
PCB mfg-xx Boards
PCB Assembly
Peripheral Board Hardware
Schematic Pinout ZiLOG Board Design Engineer
Verification ZiLOG Board Design Engineer
Interface Debug ZiLOG Embedded Systems Engineer
Functional Testing ZiLOG Embedded Systems Engineer
Documentation delivery ZiLOG Embedded Systems Engineer
PCB
PCB Layout ZiLOG PCB Layout Designer
PCB mfg-xx Boards
PCB Assembly
Software
Embedded SW Design Tools (ZDS) USAT Embedded Software Engineer
Development Brd Drivers USAT Embedded Software Engineer
Example E-Port Application USAT Embedded Software Engineer
E-Port Application Manual USAT Embedded Software Engineer
USALive network software USAT Embedded Software Engineer
PC Simulation Application USAT Embedded Software Engineer
First Article Application USAT Embedded Software Engineer
/integration testing
USAT Embedded Systems Engineer
ZiLOG Embedded Software Engineer
ZiLOG Embedded Systems Engineer
POS Development Kit Creation
Full Release Testing ZiLOG Embedded Software Engineer
Quick Start Guide ZiLOG Embedded Systems Engineer
Kit List and Build
Create Xxxx of Materials ZiLOG Board Design Engineer
Order components, boards, etc. ZiLOG Board Design Engineer
Build ZiLOG Board Design Engineer
Package Design ZiLOG Graphic Artist
ZiLOG Part Number Creation
Web Entry for Kit availability ZiLOG IT
Position Descriptions:
18
Embedded Systems Engineer
Able to design, develop and troubleshoot complex hardware and software solutions
for systems that require embedded microcomputer command and control. Perform
systems modeling, simulation and analysis in designing embedded systems.
Responsibilities also include the creation of documentation for new hardware and
software designs.
Qualifications:
* BSEE, minimum (or its equivalent) Proven experience designing
microcontroller-based systems, including communications protocols and IP
networking
* Minimum of 5 years directly related experience
* Outstanding verbal and written communication skills
* Strong team orientation
Embedded Software Engineer
Generate detailed embedded software requirements specifications from high-level
product specifications, then drive the development of the software architecture,
design, implementation, integration and testing of software applications for a
next generation platform of embedded POS terminal. Develop and implement
embedded software/firmware for the development of new products. Design and
coding tasks will include Application Programming Interfaces (APIs), task
Queuing, communications protocol stacks, command/message parsers for commodity
and custom microprocessor based systems. Ensure software/firmware test/release
procedures are followed. Follow up on the release of new revisions or bug fixes.
Work very closely with hardware design engineers in the new product development.
Qualifications:
* BS or NIS in Computer Engineering, Software Engineering,
* Electrical Engineering, or Computer Science
* Five years experience in design and implementation of embedded systems and
software.
* Expert knowledge of C or C++ and assembly language.
* Experience with RTOS, device driver, application interface design, electrical
engineering, and digital logic design including the ability to read a schematic.
* Experience with VHDL or other FPGA tools and 8-bit microcontroller
architectures desirable.
* Software programming experience in several of the following areas: data
communication (industrial fieldbus, RS485-232, USB, TCP, UDP, SDI-12, RF, etc.),
data logging, A/D data acquisition control and intelligent sensor networks.
Board Design Engineer
Hardware design responsibility for logic design of circuit board assemblies,
schematic captures, vendor and customer interface, component selection.
Directing layout designer to complete PCB layout, circuit board prototyping, lab
bring-up, and debug. Design, debug and bring up printed circuit boards. Find
chip related bus protocol problems and work with hardware and software groups to
find resolution.
Qualifications:
o BSEE (or its equivalent)
o Possess strong board / digital / analog design experience using high-speed
microprocessors and their supporting chipsets, memory technologies, bus
technologies, system 0/0 xxxxxxxxx, xxxxx xxxxxxxxxxxx xxxx xxxxxx (XXXXx)
and ASICs.
o Strong knowledge and expertise in schematic capture and layout CAD tools
and library support.
o Requires a strong understanding of AGP, PCI, SDRAM/DDR, TMDS, LVDS, USB,
Ethernet, IB, and ASIC(s).
PCB Layout Designer
Support product development efforts by successfully translating engineering
schematics to physical models. In volves working with design engineers to design
printed circuit boards and modifying existing circuit boards to fa cilitate
engineering changes.
Qualifications:
o Associates Degree
o Recent (moderate to extended) direct experience in the design of
o analog/digital board schematic capture and layout through production.
o Must have proficiency in all facets of design; experience with mixed signal
layouts
19
containing both digital devices and sensitive analog signal circuits.
20
Appendix C
ZILOG REQUIREMENTS FOR RELEASE
OF
POS DEVELOPMENT KIT
21
1. PURPOSE
1.1. This document provides definitions for the severity of bugs and
guidelines for releasing the POS reference design kit.
2. SCOPE
2.1. These guidelines apply to the POS reference design kit developed
jointly by Zilog and USAT.
3. BUG DEFINITIONS
3.1. Catastrophic Bug (Level 1): A major bug that causes the operating
system to crash and/or destroys data. No workaround exists and the
customer cannot proceed until this item is fixed.
Examples:
o A write memory to disk command overwrites the entire disk space
o Invoking a command locks up the system and only a reset recovers.
3.2. Major Bug (Level 2): A major malfunction bug that renders the product
useless to the customer. No work-around exists. The customer can do
almost no more useful work.
Example:
o The STOP command of the debugger fails to return control of the MCU to
the user.
3.3. Severe Bug (Level 3): A significant error that prevents customer usage
and is in a critical function so as significantly reduce the
usefulness of the product. A workaround does not exist or is so
difficult or time consuming to use as to render it useless. The
customer can still do useful work bug at a slower rate or in other
areas of their project. The customer's project deadline is usually
adversely affected.
Example:
o The memory change command does not work. Using the memory set command
is a work-around.
3.4. Routine Bug: (Level 4): An error that impedes customer usage but is
not in a critical system function. A work-around does not exist or is
hard to use. The customer can still proceed with useful work and
complete their project.
Example:
o Memory Search command fails with a range over 32K.
22
3.5. Minor Bug (Level 5): A minor error that does not prevent customer
usage from completing their design. A work-around always exists and is
easy to use.
Examples:
o Typo in User's Manual or Help file.
o Garbage character displayed along with all required data.
3.6. Enhancement Request (Level 6): A request to enhance the product
functionality in hardware, software or documentation.
Examples:
o Add an option to the memory search command to report all non-matches.
o Add a troubleshooting section to the user's manual.
4. RELEASE GUIDELINES
4.1. Never ship with Level 1 or 2 bugs.
4.2. Shipping with Level 3 bugs is discouraged and requires Support
Products Director or Manager approval.
4.3. Excessive amounts (over 5) of Level 4 bugs will prevent product
release/shipment.
23
Appendix D
USAT SOFTWARE
24
---------------------------------- --------------------------------- --------------------------------
Software Type Description
---------------------------------- --------------------------------- --------------------------------
e-PortTMtest software PC based - Visual Basic ver- PC-development board
sion interface software
---------------------------------- --------------------------------- --------------------------------
e-PortTm reference design Assembly/C/C++/object Reference design board
firmware eZ80 based firmware
---------------------------------- --------------------------------- --------------------------------
Reference Design Configu- PC based -Visual Basic ver- Terminal configuration
ration Software sion software, settings, opera-
tional parameters
---------------------------------- --------------------------------- --------------------------------
USALive Network Soft- PC based - Visual Basic ver- Development board call in
xxxx sion software, loads/runs on a
single PC
---------------------------------- --------------------------------- --------------------------------
25
Appendix E
USAT LICENSE TERMS
26
SOFTWARE LICENSE AGREEMENT
Licensor:
USA Technologies, Inc.
000 Xxxxx Xxxxxx
Xxxxx, XX 00000
End User:
---------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Effective
Date:
-------------------------------
INTENDING TO BE LEGALLY BOUND, and in consideration of the mutual
agreements stated below, Licensor and End User agree as follows:
SECTION I.: DEFINED TERMS
-------------------------
1. "Affiliated Party" means, with respect to a given Person, any
Person which, directly or indirectly, controls, is controlled by, or is under
common control with, the given Person.
2. "Documentation" means all user, operating, programming and training
manuals, technical information, and other documentation and materials provided
by or on behalf of Licensor to End User in connection with the Software.
3. "Licensing Fee" means the license fees and payment terms applicable
to this License Agreement, as defined and described on Schedule 1.3.
4. "Licensor Materials" means the Software, the Documentation, all
confidential information, materials and trade secrets relating to Licensor or
any Affiliated Party of Licensor.
5. "Liability" means any suit, action, proceeding at law or in equity,
claim (groundless or otherwise), liability, loss, damage, payment, deficiency,
27
settlement, penalty, fine, cost and legal and other expense (including
reasonable attorney fees and disbursements and court costs).
6. "Person" means any individual, sole proprietorship, joint venture,
partnership, corporation, association, firm, trust, estate, governmental agency,
regulatory authority, or any other legal entity.
7. "Software" means the e-Port software and all modifications and
updates provided by or on behalf of Licensor to End User.
8. "System" means the Software and the Documentation.
SECTION II.: GRANT OF LICENSE
1 . Non-Exclusive Grant. In exchange for the Licensing Fees, Licensor
hereby grants to End User a nonexclusive license to use the Software and the
Documentation in the manner set forth in this Agreement. Licensor expressly
reserves the night to reproduce, publish, sell, license and distribute the
Software and Documentation to any Persons.
2. Non-transferrable. The license granted hereby is non-transferable.
End User may not sell, assign or otherwise transfer any portion of the System to
any Person, sublicense any Person to use any portion of the System or permit any
Person to use the System, except as expressly provided in this Agreement.
3. Permitted Uses. In connection with the License granted by this
Agreement, End User may do the following:
A. Have the Software installed in accordance with Licensor's
instructions.
B. Use and execute the Software only on the microprocessor
specified by type and identification number set forth in Schedule 2.3.
C. Use the System solely for the purposes of a "single
contract relationship". Without limiting the generality of the foregoing, End
User may not use any portion of the System in connection with any other service
or supply relationship.
4. Restrictions. End User may only use the Software, Documentation and
the Licensor Materials as specifically authorized in this Agreement. Without
limiting the generality of the foregoing, End User is subject to the following
restrictions:
28
Strategic Alliance Agreement Final Draft - October 14, 2002
A. End User may not use, copy, modify, alter, transfer or distribute
the Software or Documentation (electronically or otherwise), or any copy,
adaptation, transcription, or merged portion thereof, except as expressly
authorized in this Agreement, or otherwise in a writing signed by Licensor.
B. End User may not reverse assemble, reverse compile, or otherwise
translate the Software.
C. End User may not install the Software in any system or use it at
any location, other than as set forth in Section 2.3, without Licensor's prior
written consent. If End User uses, copies, or modifies the Software or if End
User transfers possession of any copy, adaptation, transcription, or merged
portion of the Software to any other party in any way not expressly authorized
by Licensor, End User's license hereunder will automatically terminate.
D. End User may not demonstrate the Software before, or use the
Software in the presence of, any third parties, without Licensor's prior written
consent after first disclosing to Licensor who such third parties are and the
purpose therefor. Licensor may withhold such consent for any reason.
E. End User shall act in accordance with the rules of the industry
segment in which the End User operates, including various applicable merchant
agreements.
SECTION III: WARRANTIES AND LIMITATIONS
---------------------------------------
1. Software Conforms to Documentation. Licensor warrants, for End User's
benefit alone, that the Software conforms in all material respects to the
Documentation for the current version of the Software. This warranty is
expressly conditioned on End User's observance of the operating instructions set
forth in the Documentation. Licensor is not responsible for obsolescence of the
Software that may result from changes in End User's requirements. The foregoing
warranty shall apply only to the most current version of the Software issued by
Licensor from time to time. Licensor assumes no responsibility for the use of
superseded, outdated, or uncorrected versions of the Software.
2. End User's Exclusive Reme . As End User's exclusive remedy for any
material defect in the Software for which Licensor is responsible, Licensor
shall attempt through reasonable effort to correct or cure any reproducible
defect by issuing corrected instructions, a restriction, or a bypass. In the
event Licensor does not correct or cure such nonconformity or defect after it
has had a reasonable opportunity to do so, End User's exclusive remedy shall be
to terminate this Agreement. Licensor shall not be obligated to correct, cure,
or otherwise remedy any nonconformity or defect in the Software if End User has
made any changes whatsoever to the Software, if the Software has been misused or
damaged in any respect, or if End User has not reported to
29
Strategic Alliance Agreement Final Draft - October 14, 2002
Licensor the existence and nature of such nonconformity or defect promptly upon
discovery thereof.
3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR
DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO
THE SOFTWARE AND THE DOCUMENTATION INCLUDING ITS CONDITION, ITS CONFORMITY TO
ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT
DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE.
4. Limitations on Liability . Neither Licensor, nor any Affiliated Party of
Licensor, shall have or suffer any liability for loss of data or documentation,
it being understood that End User is responsible for reasonable backup
precautions. In no event shall Licensor or any Affiliated Party of Licensor be
liable for any loss of profits; any incidental, special, exemplary, or
consequential damages; any claims or demands brought against End User, or any
other Liability whatsoever, even if Licensor has been advised of the possibility
of such claims or demands. This limitation upon damages and claims is intended
to apply without regard to whether other provisions of this Agreement have been
breached or have proven ineffective.
SECTION IV.: SUPPORT SERVICES
-----------------------------
Licensor shall support the System in the manner specified in Schedule 4.
However, Licensor offers support only for the most current version of the
Software issued by licensor from time to time, so End User is responsible for
prompt substitution and/or incorporation of all new releases or fixes issued by
Licensor pursuant to its warranty and support programs.
SECTION VI: END USER'S RESPONSIBILITIES
---------------------------------------
Hardware. Licensor assumes no responsibility under this Agreement for
obtaining or providing the hardware. End User is also responsible for ensuring a
proper environment and proper utilities for the computer system on which the
Software will operate, including an uninterrupted power supply.
SECTION V1I: OWNERSHIP AND CONFIDENTIALITY
------------------------------------------
1. Ownership. Licensor shall have sole and exclusive ownership of all
right, title, and interest in and to the Licensor Materials, the System and all
modifications and enhancements of the System (including ownership of all trade
secrets and copyrights pertaining thereto), subject only to the rights and
privileges expressly granted to End User herein by Licensor. This Agreement does
not provide End User with title or ownership of the Software or Documentation,
but only a right of limited
30
Strategic Alliance Agreement Final Draft - October 14, 2002
use. End User must keep the Software free and clear of all claims, liens, and
encumbrances.
2. Not Impair Licensor's Rights. During the term of this Agreement and at
all times thereafter, End User will not contest or impair, directly or
indirectly, licensor's ownership of the Software, Documentation or any of the
Licensor Materials.
3. Confidentiality.
A. The Licensor Materials, including the ideas and expressions thereof
which are contained therein, are acknowledged by End User to be confidential,
proprietary information of Licensor, and trade secrets of great value to
Licensor.
B. The Licensor Materials are provided to End User for the exclusive
use of End User strictly in accordance with the provisions of this Agreement,
and shall be held in confidence by End User. End User shall not in any manner or
form disclose, provide, or otherwise make available, in whole or in part, the
Licensor Materials or any other confidential proprietary information of Licensor
to any Person (other than End User's employees in the scope of their
employment). End User shall take all appropriate action, whether by instruction,
agreement or otherwise with its employees and others to ensure the protection,
confidentiality and security of the Licensor Materials. End User agrees to use
at least the same degree of care in maintaining the confidentiality of such
information and materials that End User exercises in maintaining the
confidentiality of its own trade secrets and confidential information and
materials.
4. Remedies. End User acknowledges that, in the event of End User's
breach of any of the provisions of this Agreement, licensor will not have an
adequate remedy in money or damages. licensor and/or an Affiliated Party of
licensor, as applicable, shall be entitled to obtain an injunction against such
breach issued by any court of competent jurisdiction immediately upon request.
The right of Licensor or an Affiliated Party of licensor to obtain injunctive
relief shall not limit its or their right to seek further remedies available in
law or in equity.
SECTION VII CLAIM OF INFRINGEMENT
---------------------------------
If a third party claims that the Software infringes its patent,
copyright, or trade secret, or any similar intellectual property right, Licensor
will take commercially reasonable steps to remedy the alleged infringement,
including obtaining an appropriate license for the Software, provided that End
User promptly notifies Licensor in writing of the claim. If such a claim is made
or appears possible, End User agrees to permit Licensor to enable End User to
continue to use the Software, or to modify or replace the Software and/or
Documentation. If licensor determines that none of these alternatives is
desirable or is reasonably available, End User agrees to de-install and to
return all copies of the Software and/or Documentation on licensor's written
request and the
31
Strategic Alliance Agreement Final Draft - October 14, 2002
license provided for herein shall ten-ninate. Notwithstanding the foregoing,
Licensor has no obligation for any claim based on End User's modification of the
Software or its combination, operation, or use with any product, data, or
apparatus not specified or provided by Licensor, provided that such claim is
based on such combination, operation, or use and such claim would be avoided by
combination, operation, or use with products, data, or apparatus specified or
provided by Licensor. THIS PARAGRAPH STATES LICENSOR'S ENTIRE OBLIGATION TO END
USER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
SECTION V111.: AUDIT RIGHTS
---------------------------
End User hereby authorizes Licensor, or an authorized agent of Licensor, to work
with End User's OEM partner who is installing the Software in order to track the
number of microprocessors in which the Software has been installed. Licensor
understands that any trade secrets or other confidential information and
materials of End User that are disclosed or discovered through such audit may be
valuable assets of End User; Licensor agrees to use at least the same degree of
care in maintaining the confidentiality of such information and materials that
Licensor exercises in maintaining the confidentiality of its own trade secrets
and confidential information and materials.
SECTION IX.: TERM; TERMINATION
------------------------------
1. Term. This Agreement is effective as of the date hereof, and shall
continue until ten-ninated as provided herein.
2. Termination.
A. This Agreement shall automatically terminate upon End User ceasing
to use the Software.
B. This Agreement shall automatically terminate immediately upon End
User's material a] breach of this Agreement, provided that End User shall have
failed to cure any such breach within 30 days notice thereof by Licensor.
C. This Agreement may be terminated at any time by Licensor for its
convenience upon 30-days prior notice to End User, at no cost to Licensor.
3. Effect of Termination. Upon termination of this Agreement, 0 tights
granted to End User will terminate and revert to Licensor. Promptly upon
termination of this Agreement for any reason or upon discontinuance or
abandonment of End User's possession or use of the System, End User must
de-install all portions of the Software from the hardware, and return or
destroy, as requested by Licensor, all copies of the Software and Documentation
in End User's possession (whether modified or
32
Strategic Alliance Agreement Final Draft - October 14, 2002
unmodified), and all other materials pertaining to the System (including all
copies thereof). End User agrees to certify in writing End User's compliance
with the requirements of this Section 9.3, upon Licensor's request. For a period
of 12 months after the termination of this Agreement, End user shall permit
Licensor, or an authorized agent of Licensor, to enter End User's premises and
to inspect End User's computer equipment and facilities in order to verify End
User's compliance with this Section 9.3. Licensor understands that any, trade
secrets or other confidential information and materials of End User that are
disclosed or discovered through such audit may be valuable assets of End User;
Licensor agrees to use at least the same degree of care in maintaining the
confidentiality of such information and materials that Licensor exercises in
maintaining the confidentiality of its own trade secrets and confidential
information and materials.
4. Surviving Provisions. The following provisions of this Agreement shall
survive any termination of this Agreement: Sections 3, 6 and 9.3.
SECTION X.: GENERAL PROVISIONS
------------------------------
1. Relationship between Parties. The relationship between Licensor and End
User is that of independent contractors, and not partners, joint ventures or
agents. Neither party has any authority to bind the other party in any manner.
Neither party will be liable for any debts or liabilities of the other party,
and, except as otherwise provided in this Agreement, each party will be
responsible for its own expenses incurred in performing its obligations under
this Agreement.
2. Entire Understanding. This Agreement, together with the exhibits and
schedules to this Agreement, state the entire understanding between the parties
with respect to the subject matter hereof and supersede all earlier and
contemporaneous oral and written communications and agreements with respect to
the same subject matter. Except as expressly provided herein, neither this
Agreement, nor any exhibit or schedule to this Agreement, may be amended or
modified except in a written document signed by both parties.
3. Additional Documents. Each of the parties hereto shall take or cause to
be taken all actions, or do or cause to be done all things, or execute and
deliver any and all documents, instruments and writings, necessary, convenient,
proper or advisable to consummate, make effective, and carry out the terms and
provisions of this Agreement.
4. Parties in Interest. This Agreement will bind, benefit, and be
enforceable by End User and Licensor, and their respective successors and, to
the extent permitted hereby, assigns. Without the prior written consent of
Licensor, End User may not assign, sublicense or subcontract any of its rights
or obligations under this Agreement to any Person. Nothing herein expressed or
implied is intended or shall be construed to confer upon or to give to any
Person, other than the parties hereto, their
33
Strategic Alliance Agreement Final Draft - October 14, 2002
respective successors and permitted assigns, any rights or remedies under or by
reason of this Agreement.
5. No Waivers. No failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by either party, and no course of
dealing between the parties, will constitute a waiver of, or will preclude any
other or further exercise of, the same or any other right, power or remedy.
6. Severability. If any provision of this Agreement is construed to be
invalid, illegal or in unenforceable, then the remaining provisions will not he
affected thereby and will be enforceable without regard thereto.
7. Section Headings. Section and subsection headings are for convenience of
reference only, do not constitute part of this Agreement, and will not affect
its interpretation.
8. Inclusion. As used in this Agreement, the word "including" means
"including but not limited to."
9. Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without reference
to choice of law principles.
WITNESS THE DUE EXECUTION AND DELIVERY HEREOF AS OF THE DATE FIRST STATED
ABOVE.
USA TECHNOLOGIES, INC.
By:
-------------------------------
Name
and Title:
------------------------
END USER:
-------------------------
By:
------------------------------
Name
and Title:
------------------------
34
Strategic Alliance Agreement Final Draft - October 14, 2002
Appendix F
ZILOG STANDARD TERMS AND CONDITIONS
35
Strategic Alliance Agreement Final Draft - October 14, 2002
1. GENERAL
These Standard Terms and Conditions of Sale and those noted on the front of
ZiLOG's Sales Order Acknowledgment (collectively hereinafter "Terms and
Conditions") shall govern all sales by ZiLOG to Buyer. These Terms and
Conditions shall be construed as an offer or counteroffer and shall not be
construed as an acceptance of Buyer's Purchase Order. After the last Sales Order
Acknowledgment is submitted by ZiLOG to Buyer, no modification or addition
thereto shall be binding on either party unless it is in writing and, signed by
both parties. Products ("Products") shall mean any of the Product Types listed
in Section 7(c) below.
2. TERMS OF PAYMENT
All Products sold to Buyer will be invoiced upon shipment by ZiLOG. Terms of
payment shall be net thirty (30) days from date of invoice, subject to the
approval of the ZiLOG Credit Department. ZiLOG reserves the right to require
payment in advance, C.O.D. or to otherwise modify credit terms. ZiLOG reserves
the right to charge interest from the date payment is due, at the maximum legal
rate on all delinquent accounts.
3. TAXES
Buyer shall provide to ZiLOG any applicable correctly completed tax exemption
certificate(s). Otherwise, Buyer shall pay to ZiLOG, in addition to the prices
provided for herein, any foreign or domestic duty, sales or use tax, transfer
tax, excise tax or similar charge (exclusive of taxes based on net income or net
worth) which ZiLOG may be required to pay with respect to the production,
manufacture, sale, transportation, storage, delivery or use of Products sold
hereunder.
4. SHIPMENT AND DELIVERY
(A) Unless otherwise specified, delivery will be made F.O.B. Destination for
sernicon ductor components, board level products, development systems,
microcomputer systems, and/or peripherals. All goods sold hereunder will be
delivered to a carrier who shall be se lected by ZiLOG unless Buyer requests in
writing use of another carrier. All risks of loss will pass to Buyer upon
delivery by ZiLOG to the carrier. ZiLOG shall exert good faith ef forts to make
all shipments in accordance with delivery dates noted in Buyer's copy of Zi
LOG's Sales Order Acknowledgment.
(B) Each shipment made hereunder shall be considered a separate transaction. In
the event of default by Buyer, ZiLOG may decline to make further shipments. If
ZiLOG elects to continue to make shipment, such action shall not constitute a
waiver of any default by Buyer or any provision of these Terms and Conditions.
36
Strategic Alliance Agreement Final Draft - October 14, 2002
(C) Buyer shall indemnify and defend ZiLOG against any and all claims or losses
to Zi LOG resulting from the negligent or other unlawful acts of a carrier
selected by Buyer.
5. SECURITY INTEREST
ZiLOG hereby reserves a purchase money security interest in the goods sold
hereunder and all the proceeds thereof, including, but not limited to, insurance
proceeds to secure performance of all Buyer's payment obligations under this
Agreement. Buyer's failure to pay any amount when due shall give the ZiLOG the
right to repossess and remove the goods, provided that such repossession and
removal shall not be made from any customer of Buyer's except upon ten (10) days
prior notice to Buyer. Such repossession and removal shall be without prejudice
to any of ZiLOG's other remedies at law or in equity. Buyer agrees, without
further consideration, at any time to do or cause to be done, to execute and to
deliver all such further acts and instruments as ZiLOG may reasonably request in
order to perfect ZiLOG's security interest in the goods, including without
limitation, a financing statement appropriate for filing. If Buyer, for whatever
reason, fails to sign a financing statement after ZiLOG has reasonably requested
that Buyer sign such a financing statement, Buyer agrees that ZiLOG shall have
the authority as Buyer's attorney-in-fact to sign the financing statement as
Buyer's agent.
6. INSPECTION AND ACCEPTANCE
The performance of the Product shall be in accordance with the ZiLOG Customer
Procurement Specifications referenced on the front hereof. The Buyer shall
inspect and accept the Products within two (2) weeks of the date of Buyer's
receipt or four (4) weeks from the date of ZiLOG's shipment, whichever is the
shorter period. Any claim for Products not conforming to the Customer
Procurement Specifications must be made in writing within this period. ZiLOG has
the right to examine at Buyer's premises, any products the Buyer claims are
nonconforming. ZiLOG has the right to impose a reasonable rescreening charge (of
not less than 25 cents per unit for semiconductor components) if shipments
returned to ZiLOG are found to be within the Acknowledgment Quality level.
Repairs that are ZiLOG's responsibility may be made, at ZiLOG's election, at
Buyer's premises.
LIMITED WARRANTY
(A) Hardware: ZiLOG warrants for the applicable period as set forth in
subsection (C) that Products will be free from defects in workmanship or
material under normal use and service. ZiLOG's obligation under this warranty
shall not arise until Buyer returns the de fective product, freight prepaid to
ZiLOG's facility. ZiLOG's sole obligation under this war ranty shall be, at its
option, to replace or repair, without charge, any defective Product or component
part of such Products.
(B) Software and Firmware: ZiLOG warrants for the period set forth in subsection
(C) that Software and Firmware supplied hereunder shall be free of material
defects and conform to published ZiLOG specifications. ZiLOG's sole obligation,
and Buyer's sole remedy shall be for ZiLOG to exert its best efforts to correct
such defects and to supply Buyer with a cor rected version within a reasonable
time after Buyer notifies ZiLOG in writing of any defect.
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Strategic Alliance Agreement Final Draft - October 14, 2002
This warranty does not cover any modifications to the Software and Firmware made
by any person other than ZiLOG, or defects caused by, or otherwise related to,
such modification.
(C) Effective period of warranty:
PRODUCT TYPE FROM DATE OF SHIPMENT
Board Level Products )
Development Systems ) 90 Days
Microcomputer Systems )
Peripherals )
Software/Firmware 90 Days, unless otherwise
stated
Semiconductor Components 1 Year
Semiconductor Die or Wafers See (E) below
Any replacement of Products, or components thereof, under this warranty shall
not extend the period of the warranty which was applicable at the initial sale
of the Product.
ZiLOG shall not be liable under this warranty if (i) the Products which Buyer
alleges are defective have been repaired or altered by anyone other than ZiLOG's
designated personnel or authorized representative unless such repair or
alteration was effected pursuant to the prior written approval of ZiLOG or (ii)
testing and examination by ZiLOG reveals the alleged defect to have been caused
by Buyer's misuse, neglect, improper installation or any other cause beyond the
range of intended use of the Products or by accident, fire or other hazard.
(D) Buyer or Buyer's customer retains sole responsibility for all
Software, Information or
Memory Data stored on or integrated with any of the Products returned under this
warranty. In some cases, products sold pursuant to this Sales Order
Acknowledgment may have been used and refurbished by ZiLOG before sale
hereunder. ZiLOG warrants all such refur bished products perform identically to
all new products sold by ZiLOG.
(E) Semiconductor wafers or die are sensitive to handling, environmental
conditions, and performance alterations during Buyer's assembly and test of
Products. ZiLOG makes no warranty concerning these wafers or die other than that
they were manufactured and tested in accordance with ZiLOG's usual manufacturing
and test practices. Buyer is responsible for testing these wafers and die
products within two (2) weeks of the date of Buyer's receipt or four (4) weeks
from the date of ZiLOG's shipment, whichever is the shorter period. Any claim
for nonconformance must be made before this period expires or before Buyer com
mences assembly of the Product. AFTER BUYER BEGINS ASSEMBLY OR THE TIME PERIODS
SPECEFIED ABOVE EXPIRE, THE PRODUCT IN DIE OR WAFER FORM SHALL BE DEEMED SOLD TO
BUYER ON AN "AS IS" BASIS, AND ZILOG SHALL NOT WARRANTY TEE PERFORMANCE OF
THE-PRODUCT.
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7. LIMITS OF LIABILITY AND INDEMNIFICATION
(A) THE WARRANTIES OF ZILOG SET FORTH ABOVE ARE IN LIEU OF, AND BUYER HEREBY
WAIVES ALL OTHER WARRANTIES OF ZILOG, EXPRESS OR
IMPLIED, ARISING OUT OF OR IN CONNECTION WITH, THE SALE OF PRODUCTS, OR THE USE,
INSTALLATION OR PERFORMANCE THEREOF, IN THE COURSE OF DEALING OR PERFORMANCE
UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(B) ZILOG SHALL NOT BE LIABLE TO BUYER, TO BUYER'S CUSTOMERS OR TO ANY OTHER
PERSON, AND BUYER AGREES TO INDEMNIFY ZILOG WITH
RESPECT TO ANY CLAIM FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT, AND LOSS OF PLANT, EQUIPMENT OR
PRODUCTION ARISING FROM THE SALE OR SUBSEQUENT USE OF PRODUCTS.
(C) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE
TOTAL LIABILITY OF ZiLOG ARISING OUT OF THESE TERMS AND CONDITIONS OR THE USE OR
PERFORMANCE OF THE PRODUCTS EXCEED THE SUM OF THE AMOUNTS PAID BY BUYER FOR THE
PRODUCTS.
8. PATENT INFRINGEMENT INDEMNIFICATION
(A) ZiLOG agrees, at its own expense, to defend Buyer and any customer thereof
("in denmitee") from and against any claim, suit or proceeding, and to pay all
judgements and costs finally awarded against Buyer or said customer by reason of
claim, suit or proceeding insofar as it is based upon an allegation that the
Products or any part thereof furnished by ZiLOG infringe any letter patent, if
ZiLOG is notified properly of such claim in writing and is given authority and
full and proper information and assistance (at ZiLOG's expense) for defense of
the same. In case such Products, or any part thereof, are held in such suit to
con stitute infringement and the use of Products or any part is enjoined, ZiLOG
shall at its sole discretion and at its own expense: (1) procure for the
indemnitee the right to continue using the Products or part; (2) replace or
modify the same so that it becomes noninfringing; or (3) remove such Products or
part thereof and grant indemnitee a credit for the depreciated value of the
same.
(B) The indemnitee shall have the right to employ separate counsel in any claim,
suit or proceeding set forth in paragraph (A) and to participate in the defense
thereof, but the fees and expenses of the indemnitee's counsel shall not be
borne by ZiLOG unless: (1) ZiLOG specifically so agrees; or (2) ZiLOG, after
notice and without cause does not assume such defense. ZiLOG shall not be liable
to indemnify indemnitee for any settlement-effected without ZiLOG's consent,
which consent shall not be unreasonably withheld.
(C) The indemnification set forth in subsection 9(A) shall not apply and Buyer
shall indemnify ZiLOG and hold it harmless from all liability or expense
(including costs of suit and attorney's fees) if the infringement arises from,
or is based upon ZiLOG's compliance with
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Strategic Alliance Agreement Final Draft - October 14, 2002
particular requirements of Buyer or Buyer's customer that differ from ZiLOG's
standard specifications for the Products, or modifications or alterations of the
Products, or a combination of the Products with other items not furnished or
manufactured by ZiLOG.
(D) Buyer agrees that ZiLOG shall not be liable for any collateral, incidental,
punitive or consequential damages arising out of any patent infringement.
(E) The foregoing states the entire liability of ZiLOG for patent infringement.
9. FORCE MAJEURE
Neither party to this Agreement shall be responsible or liable to the other
party, to any third party for any damages including, without limitation,
incidental and consequential damages, arising out of, nonperformance or delay in
performance of the terms and conditions herein due to acts of God, wars, riots,
strikes, unavailability of suitable and sufficient labor, materials, die or
capacity or technical or yield failures and except as provided in section 4(C)
above, any unforeseen event-beyond its control.
If any such events occur, ZiLOG may, in its sole discretion, allocate production
and deliveries among any and all of its customers and for its own requirements
for further manufacture and other use.
10. PROPRIETARY RIGHTS
Buyer agrees that ZiLOG retains proprietary rights in and to all Product
specifications, designs and engineering details for Products, to all ZiLOG
designed Software and Firmware, to all manuals marked as proprietary, to all
discoveries, inventions, patent and other proprietary rights arising out of work
done in connection with any contract between Buyer and ZiLOG, and to all other
information or assistance of a technical nature provided to Buyer by ZiLOG that
is not so provided for reproduction or delivery to Buyer's customers. Buyer
warrant that it will not disclose in any manner to any third person information
to which ZiLOG retains proprietary rights therein.
11. CANCELLATION, RESCHEDULE AND FAILURE TO RELEASE
(A) If Buyer cancels shipment of any purchase order, or a portion of any
purchase order, or reschedules without prior agreement by ZiLOG any purchase
order, or a portion of any purchase order, the following charges may, at ZiLOG
option, be assessed and invoiced by ZiLOG.
Product Notice Received Cancellation/Reschedule
Type Prior to Charges:
Schedule Date:
Commercial 0 - 30 days No cancellations allowed
15% restocking charges apply
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Strategic Alliance Agreement Final Draft - October 14, 2002
Military 0 - 60 days No cancellations allowed
100% invoice charges apply
ROM 0 - 60 days No cancellations allowed
Invoice for Work-in-Process
for or 100% invoice charges
for finished goods.
IrDA Custom Product" 0 - 90 days No cancellations allowed
Invoice for Work-in-Process
or 100% invoice charges
for finished goods.
ROM CODE VARIATIONS: Since ROM Coded Products are custom products made
specifically for Buyer, Buyer agrees that ZiLOG may ship a quantity of such ROM
Coded Products which is five percent (5%) more or less than the quantity ordered
and that such variation will be accepted as delivery in full and paid for by
Buyer.
*Notice shall be calculated from the Customer Request Date confirmed in the most
recent Sales Order Acknowledgment.
** An IrDA Custom Product constitutes any transceiver that deviates from its
standard manufacturing flow to specifically suit the requirements of one
customer. This transceiver is assigned a special part number, and can only be
used by Buyer for which it was produced.
(B) ZiLOG price quotations and acknowledgments are dependent upon quantity and
schedule. If Buyer does not release the full quantity quoted and acknowledged
within the time frame stated on the quotation, ZiLOG reserves the right, at
ZiLOG's sole discretion, to either invoice the full quantity quoted and
acknowledged within the time frame stated on the quotation or to invoice for a
higher price in accord with ZiLOG's price schedule for the lower quantity
actually released by Buyer.
12. REMEDIES AND DAMAGES
(A) If Buyer rightfully and timely rejects or justifiably revokes acceptance of
items or if Buyer has accepted nonconforming items and has timely notified ZiLOG
of a breach of war ranty, Buyer's sole and exclusive remedy will be for ZiLOG
(at ZiLOG's option) to repair, replace or credit Buyer/Buyer's-account with
respect to any nonconforming goods returned to ZiLOG during the applicable
warranty or inspection period set forth above and with re spect to any
nonconforming services on the condition that (i) ZiLOG is promptly, upon Buyer's
discovery of the nonconformity, notified in writing with a detailed explanation,
(ii) ZiLOG issues a Return Material Authorization ("RMA") number for return of
goods F.O.B. ZiLOG's designated plant and (iii) ZiLOG's examination discloses
that such items are non conforming. Such RMA shall be effective for forty-five
(45) days from issuance date.
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Strategic Alliance Agreement Final Draft - October 14, 2002
(B) ZiLOG has the right to terminate this Agreement if in ZiLOG's sole judgment
Buyer's financial condition does not justify the terms of payment applicable
from time to time and upon demand, Buyer does not immediately comply with any
modification of payment terms required by ZiLOG in accordance with paragraph 2.
13. SOFTWARE AND FIRMWARE
Software and Firmware shall be licensed by ZiLOG upon Buyer's execution of the
applicable ZiLOG Software License Agreement which along with these Standard
Terms and Conditions of Sale, shall govern the use of ZiLOG Software and
Firmware.
14. EXPORT OR REEXPORT REQUIREMENTS
Buyer and ZiLOG shall comply with all export laws of the United States. Export
directly or indirectly of these Products, or goods containing these Products to
any other country may be prohibited unless Buyer obtains prior export or
re-export authorization from the United States Government. Buyer shall hold
ZiLOG harmless and indemnify it for any fines, penalties or other liability,
(including attorney's fees) that result from Buyer's failure to meet these
obligations.
15. GENERAL
(A) This Agreement and the Sales Order Acknowledgement constitute the entire
agree ment between the parties and supersedes all prior agreements and
understandings between
them relating to the subject matter hereunder and no modification of this
Agreement shall be binding on either party unless it is in writing and signed by
both parties.
(B) No waiver of any provision of this Agreement shall be effective unless made
in writing.
(C) Buyer and ZiLOG agree that this Agreement is made and entered into in, and
shall be governed by the laws of , the State of California. Buyer and ZiLOG
consent to jurisdiction of any state or federal court in California to resolve
any claim or controversy arising from or in any manner related to the
transaction documented in this Agreement.
(D) Section headings are for convenience only and shall not be considered in the
inter pretation of this Agreement.
(E) The plural shall include the singular, and the singular shall include the
plural when ever used.
(F) The provisions of this Agreement are severable and if any one or more such
provi sions are judicially determined to be illegal or otherwise unenforceable,
in whole or in part, the remaining provisions or portions of this Agreement
shall nevertheless be binding on and be enforceable by and between the parties.
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Strategic Alliance Agreement Final Draft - October 14, 2002
(G) The prevailing party in any legal action brought by one party against the
other shall be entitled, in addition to any other rights and remedies it may
have, to reimbursement for its expenses incurred thereby, including court costs
and reasonable attorney's fees.
(H) All notices required or permitted hereunder shall be in writing and shall be
person ally delivered or dispatched by, prepaid first-class airmail or by fax
and sent to the address indi cated.
This Agreement may not be terminated by Buyer without ZiLOG's prior written
consent. If ZiLOG so consents to such termination, Buyer shall be liable for
termination charges, in cluding without limitation, a price adjustment based on
the quality of products actually de livered and all costs direct and indirect,
incurred and committed for this Agreement together with reasonable allowance for
prorated expenses and anticipated profits.
(1) An action for breach of contract for sale or any other legal or equitable
cause of ac tion arising from or in any manner related to the order specified in
the Quotation or Sales Order Acknowledgment must be commenced within one (1)
year after the cause of action has occurred.
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