[GTECH LOGO] EXHIBIT 10.27
AGREEMENT NO. 530133-7202
BY AND BETWEEN
GTECH CORPORATION
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AND
TRANSACT TECHNOLOGIES INCORPORATED
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For the Purchase of
GTECH Model GLP305/SA
GTECH REPRESENTATIVES: VENDOR REPRESENTATIVES
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GTECH CORPORATION OEM PURCHASE AGREEMENT
1. TERMS AND CONDITIONS 5
1.1 Products 5
1.2 Services 5
1.3 OEM Purchases 5
1.4 No Minimum Commitment; No Exclusivity 5
1.5 Spare Parts 5
2. ORDERING 6
2.1 Purchase Orders 6
2.2 Lead Time 6
2.3 Priority Orders 6
2.4 Rescheduling 6
2.5 Cancellation for Convenience 6
2.6 Forecast 7
3. SHIPPING, PACKAGING, DELIVERY 7
3.1 F.O.B.; Title; Risk of Loss 7
3.2 Shipment 7
3.3 Packaging 7
3.4 International Shipments 7
3.5 Early Arrival 7
4. PRICE 7
4.1 Unit Prices 7
4.2 Price Reduction 7
4.3 Price Reduction on Spare Parts and Repairs 7
5. PAYMENT 8
6. TAXES AND DUTIES 8
7. CHANGES 8
7.1 Product Changes 8
7.2 GTECH Changes 8
7.3 Enhancements, Successor Products 9
8. COOPERATION IN THE LOTTERY AND GAMING MARKET 9
8.1 Transfer of Equipment 9
8.2 Non-Compete Clause 9
8.3 Vendor Outside Requirements 10
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9. PRODUCT QUALITY AND RELIABILITY REQUIREMENTS 10
9.1 Quality and Reliability Requirements 10
9.2 Reliability Plan 10
9.3 Reliability Test 10
9.4 Reliability Test Report 10
9.5 Vendor Survey 10
9.6 Test Equipment and Procedure Correlation 10
9.7 Final Test and Inspection Data 11
9.8 Source Inspection 11
9.9 Receiving Inspection 11
9.10 Field Reliability Reporting 11
9.11 Failure Analysis and Corrective Actions 12
9.12 GTECH's Rights with Respect to Non-Conforming Goods 12
9.13 Failures of consequence 12
10. INSURANCE 12
10.1 Vendor Insurance Coverage 12
10.2 General Liability 12
10.3 Proof of Insurance 13
10.4 First Production Performance Bond 13
11. INDEMNITY 13
12. REPAIR SUPPORT 14
12.1 Repair Orders 14
12.2 International Repair and Support 14
12.3 Failure Analysis 14
12.4 Repair Capabilities 14
12.5 Test Equipment 14
12.6 Qualified Vendor List 14
12.7 Diagnostics 15
12.8 Documentation 15
13. TRAINING 15
13.1 Initial Training 15
13.2 Component Level Training 15
13.3 Future Training 15
14. WARRANTIES 15
14.1 Vendor Standards 15
14.2 Authority 16
14.3 Title; Infringement 16
14.4 Conformance; Defects 16
14.5 Freight Costs on Warranty Repairs 16
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14.6 Freight Charges on Non-Warranty 16
14.7 Warranty Terms 16
15. TOOLING 16
16. FORCE MAEJURE 17
17. CONFIDENTIALITY 17
18. PUBLIC ANNOUNCEMENTS 18
19. NOTICES 18
20. ASSIGNMENT 18
21. TERM AND TERMINATION 18
21.1 Term 18
21.2 Termination by GTECH 18
21.3 Termination by VENDOR 19
21.4 Obligations on Termination 19
22. CONFLICTING PROVISIONS 19
23. MANUFACTURING RIGHTS 19
24. MISCELLANEOUS 20
ATTACHMENTS
1 - Products Specifications 21
2 - Pricing 22
3 - Spare Parts Pricing 23
4 - Warranty Information 24
5 - General Packaging Specification 25
6 - Tooling 26
7 - Manufacturing Rights 27
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GTECH OEM PURCHASE AGREEMENT
THIS AGREEMENT between GTECH CORPORATION, a Delaware corporation, with
offices at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("GTECH") and TransAct
Technologies Incorporated a Delaware corporation, with offices at ▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("VENDOR") sets out the terms and conditions under which
VENDOR will sell the Products and provide the Services described in this
Agreement and Attachments to GTECH.
1. TERMS AND CONDITIONS
1.1 Products. As used in this Agreement, "Products" means the thermal
printer, as well as the VENDOR's recommended spare parts, subassemblies,
operating supplies, maintenance kits, and options, if any, produced in
accordance with the specifications and any subsequent modifications authorized
in accordance with the terms of this Agreement attached hereto as Attachment 1
("Specifications").
1.2 Services. As used in this Agreement, "Services" means the ancillary
services, if any, to be provided by VENDOR in accordance with the terms of this
Agreement including without limitation, those services described in Sections 12
and 13 of this Agreement.
1.3 OEM Purchases. The Products purchased under this Agreement are
intended primarily for resale, rental or lease directly and indirectly to
GTECH's customers under trademarks and trade names selected by GTECH for use in
conjunction with GTECH systems. Products may also be used by GTECH and its
subsidiaries for their internal use.
1.4 No Minimum Commitment; No Exclusivity. Unless otherwise specified
in Attachment 2, there is no minimum quantity of purchases under this Agreement.
VENDOR will furnish Products and Services on an as-ordered basis. It is
expressly understood and agreed that GTECH is not obligated to purchase any or
all of the Products and Services from VENDOR and that GTECH may manufacture
competitive Products and Services itself and/or procure competitive products and
services from other vendors.
1.5 Spare Parts. VENDOR shall provide a Recommended Spare Parts List
("RSL") for all Products covered by this Agreement upon receipt of the first
production order. The RSL shall include all parts and assemblies necessary to
repair and maintain the Products purchased under this Agreement. The RSL shall
include a non-binding, best estimate forecast of parts that must be repaired
and/or replaced over the first three years of service. A separate RSL shall be
supplied for each product model or configuration, identifying all common parts.
a. Non-Standard Spare Parts. If the Product contains a part not
readily available in the marketplace "Non-Standard Spare Parts"), VENDOR shall
make such part available to GTECH in accordance with Section 1.5(c).
b. Emergency Stock. VENDOR shall maintain an adequate supply of
spare parts at its facility to support Priority Orders, as described in Section
2.3.
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c. Spare Part Support. VENDOR shall make all spare parts including
Non-Standard Spare Parts as described in Section 1.5(a) above, available during
the Term of this Agreement and for a period of five (5) years thereafter. In the
event VENDOR is unable to fill GTECH's Purchase Orders for spare parts promptly,
VENDOR shall make available, at no charge to GTECH, VENDOR's manufacturing
drawings and specifications, list of suppliers, and information necessary to
purchase and/or manufacture all parts and/or assemblies or subassemblies for the
parts that are not available from the VENDOR, and VENDOR shall be liable for the
difference between GTECH's cost of manufacture and VENDOR's sales price.
2. ORDERING
2.1 Purchase Orders. All purchases under this Agreement will be made
under purchase orders ("Purchase Orders") referencing this Agreement issued by
GTECH or by any subsidiary or affiliate of GTECH. Purchase Orders will be placed
directly with VENDOR and deemed accepted by VENDOR unless rejected in writing by
VENDOR specifying the reasons for rejection within fourteen (14) calendar days
after receipt of the Purchase Order. VENDOR may reject purchase orders only if a
Purchase Order does not comply with the terms and conditions of this Agreement.
2.2 Lead Time. Unless otherwise agreed, Purchase Orders shall specify a
delivery date with the normal lead-time of sixty (60) calendar days ("Lead
Time"). If GTECH requests delivery to meet a special requirement, including but
not limited to the replacement of Products lost or damaged in shipment, VENDOR
will use all commercially reasonable efforts to expedite delivery; including,
without limitation, giving GTECH first priority with respect to all Products in
stock or on order, provided however, that GTECH shall not pay any additional
charges or costs for expediting unless such charges or costs have been accepted
in writing by GTECH. In the event that Products ordered within the Lead Time are
overdue for delivery to GTECH, VENDOR shall ship replacement Products to GTECH
at no cost to GTECH, and any premium airfreight charges shall be prepaid by, and
borne by VENDOR.
2.3 Priority Orders. GTECH Purchase Orders for any and all spare parts
identified as "Priority Orders" shall be shipped within twenty-four (24) hours
after receipt by VENDOR.
2.4 Rescheduling. Within 30 calendar days of scheduled delivery date,
GTECH may reschedule within the scheduled month. At 31-60 calendar days before
scheduled delivery date, an order may be rescheduled up to 30 calendar days
later than the scheduled delivery date, or the end of the calendar quarter,
whichever is greater. Each order may be rescheduled a maximum of two times, once
with each method listed in this section.
2.5 Cancellation for Convenience. Within 60 calendar days calendar days
of scheduled delivery date, no cancellation is permitted. At 61+ calendar days
before scheduled delivery date, GTECH may cancel any or all Purchase Orders.
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2.6 Forecast. Any forecast, which may be provided, is a good faith
estimate of GTECH's anticipated requirements for the Products for the periods
indicated based on current market conditions and does not constitute a
commitment to purchase any quantity of Products or Services.
3. SHIPPING, PACKAGING, AND DELIVERY
3.1 F.O.B., Title, Risk of Loss. Unless otherwise agreed, delivery of
Products will be made F.O.B. VENDOR's dock at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇.
Subject to proper packaging, title and risk of loss shall pass to GTECH upon
proper tender of the Products to the carrier. VENDOR will provide proof of
delivery upon request and will provide reasonable assistance to GTECH at no
charge in any claim GTECH may make against a carrier or insurer for misdelivery,
loss or damage to Products after title has passed to GTECH.
3.2 Shipment. VENDOR will ship Products in accordance with GTECH's
instructions as specified in the Purchase Order. In the absence of any other
instructions, Products will be shipped by common carrier commercial land freight
for delivery in the continental United States and by ocean freight for
deliveries elsewhere, insurance and shipping charges collect.
3.3 Packaging. VENDOR shall affix to the outside of each shipment a
list of contents, including serial numbers, to allow for review of contents upon
receipt. Products shall be packaged in accordance with GTECH's General Packaging
Specifications as specified in Attachment 5.
3.4 International Shipments. If GTECH specifies delivery for
international shipment by GTECH or GTECH's freight forwarder, VENDOR will be
responsible for obtaining any necessary U.S. Department of Commerce export
licenses, permits or approvals. GTECH will be responsible for any licenses,
permits or approvals of the country of import.
3.5 Early Arrival. GTECH reserves the right to reject Products arriving
at GTECH's facilities more than five (5) calendar days before the delivery date
specified in the Purchase Order.
4. PRICE
4.1 Unit Prices. All pricing will be specified in Attachment 2. All
pricing shall remain in effect for the Term of this Agreement and any extensions
thereafter.
4.2 Price Reduction. VENDOR represents that the prices specified in
Attachment 2 are the lowest prices charged to any other customer of VENDOR
purchasing the same or lesser quantities of Products and/or Services under
similar terms and conditions. If at any time or times hereafter, VENDOR offers
Products and/or Services to any other customer on more favorable terms,
conditions or prices, VENDOR shall, at that time, offer the same terms,
conditions and prices to GTECH. If accepted by GTECH, such terms, conditions
and/or prices shall apply to all Products and Services purchased by GTECH for
the balance of the Term and any extensions thereafter.
4.3 Price Reductions On Spare Parts And Repairs. In the event of a
price reduction on the Products covered under this Agreement, VENDOR agrees to
reduce the list price of all spare
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parts on VENDORs' RSL, and the cost of repairs, by a percentage rate equal to
the reduction in the price of the Products. Any and all discounts that are
stated in Attachment 2 of this Agreement shall remain in effect, and may be
applied to all purchases made hereunder. The price reduction will apply to all
Purchase Orders for spare parts and repairs that are scheduled for delivery no
less than fifteen (15) calendar days after the effective date of the price
reduction.
5. PAYMENT
5.1 *
6. TAXES AND DUTIES
GTECH will pay as a separate invoiced item only such sales, use,
value-added or similar tax listed therein (all other taxes are excluded,
including, without limitation, taxes based upon VENDOR's net income), lawfully
imposed on the sale of the Products or provision of Services to GTECH. Taxes,
duties or like charges imposed on the Products after title has passed to GTECH
will be paid by GTECH unless such charges are the result of a trade sanction
imposed on VENDOR's Products, as specified in Section 21.2, below. In lieu of
taxes, GTECH may furnish to VENDOR a tax exemption certificate. VENDOR agrees to
provide reasonable assistance to GTECH, without charge, in any proceeding for
the refund or abatement of any taxes GTECH is required to pay under this Section
6.
7. CHANGES
7.1 Product Changes. VENDOR shall submit evaluation samples of all
Products changes that affect form, fit, function, maintainability,
repairability, reliability or appearance at least ninety (90) calendar days
before such changes are implemented. VENDOR shall forward (2) copies of all
requests to make the changes generally described above to: GTECH CORPORATION, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Purchasing Agent. GTECH may,
at its option, decline to have such changes incorporated into the Products.
Proposed changes will not be incorporated into the Products until accepted in
writing by GTECH. GTECH shall make best effort to respond in writing to VENDOR
within fifteen (15) calendar days of GTECH's receipt of change notification. In
no event will GTECH ever be deemed to have accepted any change in the price or
delivery schedule without its prior written consent.
7.2 GTECH Changes. GTECH may request changes in the Products at any
time or times during the Term of this Agreement. If such changes in the Products
will require changes in the prices and/or delivery schedule, VENDOR must respond
promptly with a written change proposal setting forth the changes in prices
and/or delivery schedule. Such proposal, when signed by an authorized
representative of GTECH, will become part of this Agreement. If VENDOR does not
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respond with a written change proposal within thirty (30) calendar days after
receipt of GTECH's request, such changes will be implemented without any
alternation in the price and/or delivery schedule. Such changes are and shall
remain the property of GTECH, and VENDOR may not use such changes or disclose
them to others without the prior written consent of GTECH.
7.3 Enhancements, Successor Products. If during the Term of this
Agreement, VENDOR offers improvements, options, additional functionality or
other enhancements ("Enhancements") to the Products not available at the time
this Agreement is signed or other products which substantially replace the
Products ("Successor Products"), VENDOR will offer such Enhancements and/or
Successor Products to GTECH at prices *. If GTECH elects, in writing, to
purchase such Enhancements or Successor Products, the Enhanced Products or
Successor Products will be ordered separately from any orders which may be open
at that time. No substitutions will be made on open purchase orders with
delivery within sixty (60) calendar days lead-time.
In any event, GTECH may, at its option, elect to continue to purchase Products
as originally specified for the Term of this Agreement and any extensions
thereafter.
8. COOPERATION IN LOTTERY AND GAMING MARKET
8.1 Transfer of Equipment. During the Term of this Agreement and any
extensions thereof, GTECH shall have the sole discretion as to whether to submit
proposals or bids for the sale, lease or other transfer of the Products to any
current or potential customer of GTECH or its affiliates, and as to whether such
a proposal or bid shall be submitted by GTECH, by VENDOR or jointly with other
parties. During the Term of this Agreement and any extensions thereof, VENDOR
shall not without GTECH's prior written consent, supply the Products provided
herein to any other person or entity for use in connection with the operation of
public or private on-line or in-lane lotteries in the U.S. or abroad.
8.2 Non-Compete Clause. VENDOR further agrees that during the Term of
this Agreement and any extensions thereof, and for the one (1) year period after
the expiration or earlier termination but not if VENDOR has terminated this
Agreement pursuant to Section 21.3 hereof, VENDOR shall not directly or
indirectly, become engaged in, or financially interested in, any on-line or
in-lane lottery business which is in competition with the on-line or in-lane
lottery business of GTECH, its subsidiaries or affiliates; provided, however,
that (a) nothing contained herein shall prevent VENDOR from supplying products
or services to competitors of GTECH so long as such products or services do not
compete against GTECH's on-line or in-lane lottery business or (b) purposely and
knowingly engage in or participate in any effort or act to induce any of the
customers, or employees of GTECH or its affiliated companies to take any action,
which is in direct conflict with the on-line or in-lane lottery business of
GTECH, its subsidiaries or affiliates or (c) GTECH elects to purchase comparable
thermal printer products for Altura on-line terminal and no longer purchases
Product from VENDOR ; provided further, however, that the limitations of the
last sentence of Section 8.1, and of this Section 8.2 ,shall not apply from and
after the earlier to occur of (i) GTECH or an
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affiliated company enters into an agreement with a third party to purchase a new
comparable thermal printer that competes with VENDOR's Product, (ii) GTECH or an
affiliated company purchases a new comparable thermal printer that competes with
VENDOR's Product from a third party, or (iii) GTECH or an affiliated company
commences manufacturing (itself or under contract with a third party)a new
comparable thermal printer that competes with VENDOR's Product.
8.3 VENDOR Outside Requirements. VENDOR agrees that it shall advise its
distributors outside the U.S. of the covenants and responsibilities set forth in
this Agreement.
9. QUALITY AND RELIABILITY REQUIREMENTS
9.1 Quality and Reliability Requirements. GTECH requires that the
VENDOR have in place at its manufacturing facility, adequate quality and
reliability safeguards to ensure that all Products shipped to GTECH meet or
exceed all parameters specified in the Product Specification, and that the
Product is not subject to any infant mortality.
9.2 Reliability Plan. The VENDOR will submit to GTECH Quality Assurance
("QA") a reliability test plan for the Products, which will include the VENDOR's
reliability requirements based on the Products Specification and test schedule.
GTECH QA will review the reliability plan for the Product, provide comments and
approve the plan when satisfied that all design requirements will be adequately
tested.
9.3 Reliability Test. The VENDOR will conduct a reliability test on the
Products to ensure that the Products meet or exceed all parameters specified in
the Product Specification. GTECH may participate and/or monitor the VENDOR's
reliability test on the Product at the VENDOR's facility.
9.4 Reliability Test Report. The VENDOR will submit to GTECH QA a
formal reliability test report for the Products based on the results of the
Product reliability test. The reliability test report will contain all data
necessary to verify and confirm that the Products meet all the design
requirements identified in the Product Specification and any resultant design
changes and corrective action to resolve any test failures. GTECH QA must
approve the VENDOR's reliability test report before the VENDOR can be approved
to ship Products to GTECH.
9.5 Vendor Survey. The VENDOR will allow GTECH to perform a vendor
survey at the VENDOR'S facility. This survey will include, but is not limited
to, an audit of the manufacturing process, reviewing the yields at each
inspection and test point in the manufacturing process, review of the on-going
reliability test data, Product design changes, corrective action, and field
reliability performance and repair data.
9.6 Test Equipment and Procedure Correlation. The test equipment and
procedures used in the VENDOR's final inspection and test, will correlate with
the test
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equipment and procedures used by GTECH. If correlation is not achieved within 30
calendar days prior to the first production shipment, the VENDOR agrees to
obtain additional test equipment and/or develop procedures that are capable of
correlation. Said test equipment and procedures will be mutually agreed upon by
both the VENDOR and GTECH Purchasing, QA and Test Engineering.
9.7 Final Test and Inspection Data. The VENDOR will provide GTECH with
inspection and/or test data based on the mutually agreed upon test equipment and
procedures with each lot of Products delivered to GTECH. The VENDOR will make
final test and inspection data (yield information), on-going reliability test
data, field reliability performance data, and repair data available at the
request of GTECH throughout the life of the Products.
9.8 Source Inspection. The VENDOR will allow GTECH (or its
representatives) to perform source inspection at their facility, using mutually
agreed upon test equipment and procedures. It is GTECH's plan to source inspect
the initial lots of Products scheduled for shipment from VENDOR's manufacturing
facility to GTECH production or field sites. To do this in a timely fashion, the
VENDOR will notify GTECH (or its representative) that source inspection is
available at least one week prior to the requested source inspection date.
Source inspection activity will continue, at the discretion of GTECH QA.
9.9 Receiving Inspection. GTECH plans to conduct receiving inspection
and test on all OEM components. GTECH will 100% inspect and test the first seven
(7) consecutive lots of VENDOR Products for visual, mechanical, electrical and
other types of compliance as specified. After the initial seven (7) lots have
been qualified, GTECH plans to conduct receiving inspection using MIL-STD-105E,
General Inspection Level I, with an AQL of 1.0 for normal sampling inspection.
If Product performance fails to meet this level of compliance at receiving
inspection, GTECH may (a) recover all costs associated with continued
unacceptable quality by taking a credit against the purchase price of the
Products or (b) allow VENDOR the option of providing timely resources on-site at
GTECH to correct the unacceptable quality condition. These costs are typically
related to sorting, testing, packaging, handling, freight and source inspection
expenses in support of receiving and in-process inspection and test.
9.10 Field Reliability Reporting. The VENDOR agrees to supply GTECH QA
with field reliability performance data for the Products purchased by GTECH. The
field reliability data is to be structured in the following manner (or
equivalent) and made available on electronic mail:
VENDOR FAILURE ANALYSIS SPREADSHEET
PRODUCT DATE RETURN RETURN INITIAL DATE REPAIR CORRECTIVE RMA SHIP
SER. NO. RECV'D SOURCE REASON FINDINGS ANALYZED PERFORMED ROOT CAUSE ACTION TAKEN NO. DATE
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9.11 Failure Analysis and Corrective Actions. The VENDOR agrees to
supply, within 15 calendar days, written notice of non-conformance, written
failure analysis and corrective actions for any in warranty devices failing to
meet any and all form, fit, function, quality or reliability requirements called
out in the Products Specification.
9.12 GTECH's Rights with Respect to Non-Conforming Goods. The testing
procedures available to GTECH are discretionary and not mandatory. In the event
GTECH chooses not to perform any or some portion of such testing, or such
testing would not reasonably reveal a non-conformance in the Products, GTECH
reserves its right under the Uniform Commercial Code to reject any shipment of
Products and to purchase similar Products and be immediately reimbursed by the
VENDOR for the difference between the cost of such Products and the VENDOR's
Products.
9.13 Failures of consequence. If GTECH's customers world-wide
experience excessively high failure rates (> or equal to 20% annualized) during
the warranty period in any given jurisdiction that is determined by both parties
to be VENDOR's responsibility, GTECH may recover all costs associated with this
unacceptable Product performance by taking credit against the purchase price of
the Product or VENDOR can, at its discretion assume all costs directly by
providing required support services to repair, upgrade or replace defective
Product in a timely manner to GTECH satisfaction. These additional costs are
typically related to screening, sorting, testing, packaging, handling by a third
party and airfreight to expedite any of these activities.
10. INSURANCE
10.1 Vendor Insurance Coverage. VENDOR shall purchase and maintain
throughout the life of this Agreement, such insurance as will protect it and
GTECH from claims set forth below which may arise out of or result from the
VENDOR's operations under this Agreement whether such operations be by it or by
any subcontractor or by anyone for whose acts any of them may be liable. VENDOR
shall cause GTECH to be additional insured under all coverages except Workers'
Compensation. Appropriate endorsements will be attached to state that the
VENDOR's policy will be primary to any other policies that may be in effect.
10.2 General Liability. Policy will provide a minimum of $2,000,000 per
occurrence for Products and Completed Operations.
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10.3 Proof of Insurance. Evidence of said insurance will be in the form
of a certificate of insurance and will be provided within ten (10) calendar days
from the date of this Agreement. Notification to GTECH will occur within thirty
(30) calendar days of any cancellation or material change in coverage. In the
event of a failure to furnish such proof or the cancellation or material change
of such insurance, without prejudice to any other remedy GTECH may have, GTECH
may terminate this Agreement, or at its option, charge the cost of required
insurance to the VENDOR. Coverage will be in effect with insurance carriers
licensed to do business in any state that the VENDOR will perform its services
and will be rated no less than A by the AM Best Company. All Certificates of
Insurance are to be forwarded to: GTECH Corporation, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. ATTN: Risk Management Department.
10.4 *
11. INDEMNITY
In addition to, and not in limitation of, any other indemnifications,
warranties and covenants set forth herein, VENDOR hereby agrees to indemnify and
hold GTECH harmless with respect to any and all costs, expenses and liability,
including without limitation reasonable attorney's fees, arising out of any
claim or action based on a failure of the Products or Services to meet the
specifications set forth herein, or the failure of the VENDOR to meet any of its
obligations hereunder.
VENDOR shall defend, indemnify and hold GTECH, its subsidiaries,
affiliates, distributors and customers harmless from any and all costs, expenses
and liability, including reasonable attorney's fees, arising out of any claim or
action based on actual or alleged infringement by the Products or any patent,
copyright, trade secret or other proprietary interest related to such Products.
GTECH shall give VENDOR prompt written notice of any claim or action and shall
provide reasonable assistance, at VENDOR'S expense, in defending any such claim
or action. If an injunction is issued which prohibits the use or sale of the
Products by reason of any matter covered by this Section 10, then VENDOR shall,
at its expense, either: (a) procure for GTECH, its subsidiaries, affiliates,
distributors and customers the right to continue using the Products; (b) modify
the Products so they become non-infringing; (c) substitute equivalent
non-infringing products; or, (d) if neither (a) through (c) are reasonably
available, GTECH may return the Products to VENDOR and VENDOR will refund the
purchase price to GTECH less depreciation based upon the straight line method
and a product life of five (5) years.
Notwithstanding the foregoing, VENDOR shall have no liability to GTECH
for actual or claimed infringement arising out of: (a) compliance with detail
designs, plans or specifications furnished by GTECH unless such infringement
would arise independent of such designs, plans or specifications; (b) use of the
Products in combination with other equipment or software not reasonably
contemplated by VENDOR; or, (c) use of the Products in any process not
reasonably
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contemplated by VENDOR. VENDOR acknowledges that the Specifications in
Attachment 1 is not a "specification" which excuses or releases VENDOR from
performing its indemnity and other obligations hereunder.
12. REPAIR SUPPORT
12.1 Repair Orders. In addition to VENDOR's obligations under Section
14, VENDOR agrees to repair all `in warranty' and `out of warranty' failures
within * from the receipt of the Products, or else replace such Products with
new Products that shall conform to the Specifications.
12.2 International Repair and Support. VENDOR will identify or
establish international repair locations as required by GTECH and within ninety
calendar days of written notice by GTECH of new jurisdictional requirements to
support the repair of Products and subassemblies. In the event that those
international facilities are not wholly owned subsidiaries of the VENDOR, then
VENDOR shall procure for GTECH the right to have repairs on the Products
performed at the international locations whether the failure occurs within the
warranty period as specified in Section 14 or otherwise. If VENDOR fails to
comply with this section 12.2, *.
12.3 Failure Analysis. VENDOR shall provide a failure analysis on
Products that are returned for repair under warranty. On serialized Products,
repair data shall be provided for each serialized unit returned. VENDOR shall
provide general failure data on out of warranty returns.
12.4 Repair Capabilities. GTECH reserves the right to repair any of the
assemblies, subassemblies, or other items comprising the Products purchased
under this Agreement. VENDOR will supply GTECH with the necessary support to
repair the Products, including the information listed under Sections 12.3, 12.5,
12.6, 12.7 and 12.8.
12.5 Test Equipment. VENDOR shall make available to GTECH, upon written
request by GTECH, any test procedures, special tools, jigs, fixtures,
diagnostics, programs, test equipment or supplies necessary to repair the unit,
any of the assemblies, subassemblies, piece parts, components, or other items
comprising the Products purchased under this Agreement to component level. GTECH
agrees to pay reasonable costs to VENDOR for hardware test equipment only. Other
items such as procedures, schematics diagnostics, programs etc. will be made
available at no charge.
12.6 Qualified Vendor List. Upon production release, VENDOR shall
supply GTECH with a qualified vendor list (QVL) for all components used in the
Products purchased under this Agreement. This QVL shall include the component
manufacturers and vendors along with the corresponding part numbers for all
components used in the Product, any of the assemblies, subassemblies, piece
parts, components, or other items comprising the Products purchased under this
Agreement. Updates to this list shall be forwarded to GTECH CORPORATION, 55
* Confidential treatment requested
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Procurement Agent
Responsible for this Commodity.
12.7 Diagnostics. VENDOR shall provide to GTECH its diagnostics, test
programs and test routines, necessary to repair to component level, the unit,
any of the assemblies, subassemblies, piece parts, components, or other items
comprising the Products purchased under this Agreement.
12.8 Documentation. In consideration of the purchase of Products under
this Agreement, and at no additional cost, VENDOR hereby grants onto GTECH the
unlimited right to use, reprint, and distribute VENDOR's Product manuals and
documentation ("Documentation"), including but not limited to user's manuals,
schematics, maintenance, theory of operation and troubleshooting guides, and any
other Documentation that VENDOR shall make available during the Term of this
Agreement. Upon request, VENDOR shall provide camera-ready copies of the
Documentation to GTECH at no additional charge. GTECH agrees to display
copyright notices in accordance with VENDOR's reasonable written instructions.
13. TRAINING
13.1 Initial Training. VENDOR agrees to provide, at no charge to GTECH,
three (3) training classes with up to twelve (12) students per class at a
GTECH-designated site during the term of this Agreement. Pursuant to the above,
GTECH shall: (1) reimburse VENDOR for instructor's reasonable transportation and
living expenses and, (2) provide equipment (or reimburse VENDOR for equipment
transportation) as required to support training classes. VENDOR shall provide
the instructor and instructional materials for the above referenced classes.
Training classes may be video taped for future use by GTECH.
13.2 Component Level Training. VENDOR shall provide at no charge to
GTECH, such training necessary to enable GTECH to repair to a component level
(i.e. resistor, capacitor, integrated circuit) the unit, any of the assemblies,
subassemblies, or other items comprising the Products purchased under this
Agreement. A minimum of one (1) of the training classes described in Section
13.1 shall consist of Component Level Training.
13.3 Future Training. GTECH may schedule a maximum of three (3)
students per quarter in VENDOR's regularly scheduled class, at VENDOR's
location, during the Term of this Agreement. If no regularly scheduled classes
are conducted, then GTECH may request VENDOR to conduct one (1) class per year
in which GTECH may schedule a maximum of six (6) students.
14. WARRANTIES
14.1 VENDOR Standards. VENDOR represents and warrants that all
Products delivered to GTECH under this Agreement will comply with applicable
U.L, CSA, CE, TUV and VDE standards and will comply with the applicable FCC
rules for the type of Products involved, including type acceptance or
certification where required. VENDOR will obtain and maintain at its own expense
all applicable listings, certifications and approvals in VENDOR's name. VENDOR
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will provide all necessary information and assistance to GTECH with respect to
listings, certifications and approvals that are required to be in GTECH's name.
14.2 Authority. VENDOR warrants that: (a) it has the right to enter
into this Agreement; (b) all necessary actions, corporate and otherwise, have
been taken to authorize the execution and delivery of this Agreement and the
same is the valid and binding obligation of VENDOR; (c) all licenses, consents
and approvals necessary to carry out all of the transactions contemplated in
this Agreement have been obtained by VENDOR; and (d) VENDOR'S performance of
this Agreement will not violate the terms of any license contract, note or other
obligation to which VENDOR is a party.
14.3 Title; Infringement. VENDOR warrants that: (a) it has and shall
pass to GTECH good title to the Products free and clear of all liens and
encumbrances; (b) the Products do not infringe any patent, trademark or
copyright or otherwise violate the rights of any third party; (c) no claim or
action is pending or threatened against VENDOR or, to VENDOR's knowledge,
against any licenser or supplier of VENDOR that would adversely affect the right
of GTECH or any customer of GTECH to use the Products for their intended use.
14.4 Conformance; Defects. Unless otherwise specified in Attachment 1,
VENDOR warrants that the Products will: (a) be new; (b) conform to the
Specification; (c) be free from defects in materials and workmanship for a
period of twenty-seven (27) months from shipment to GTECH. Upon written notice
from GTECH of a Product or part that fails to meet the foregoing warranty,
VENDOR will promptly repair or replace such Products within five (5) calendar
days of receipt by VENDOR of the failed or non-conforming Products or spare
parts.
14.5 Freight Costs on Repairs. All Products returned to VENDOR for
repair under warranty shall be shipped to VENDOR by standard ground service, *.
14.6 Freight Charges on Non-Warranty Repairs. Freight charges directly
associated with the repair of non-warranty products and/or spare parts shall be
borne by GTECH.
14.7 Warranty Terms. VENDOR shall detail all pertinent information upon
production release in Attachment 4.
15. TOOLING
15.1 Any tooling purchased by GTECH for the manufacture of the Products
("Tooling"), whether kept at GTECH's, VENDOR's or VENDOR's vendor's premises
shall remain the property of GTECH for GTECH's exclusive use. The Tooling
purchased by GTECH and used by VENDOR in the manufacture of the Products shall
be stored and maintained by VENDOR but may be removed from the VENDOR's location
at any time by GTECH, without notice, and at no additional
* Confidential treatment requested
16
cost to GTECH. VENDOR shall take such steps to protect GTECH's title to the
Tooling as GTECH may reasonably request. At a minimum, VENDOR shall cause a sign
to be affixed to such tooling stating "Property of GTECH Corporation". VENDOR
will immediately notify GTECH of any change in the location of the tooling.
16. FORCE MAJEURE
For the purposes of this Agreement, a "Force Majeure" shall mean an
event or effect that cannot be reasonably anticipated or controlled, including
but not limited to an action of the elements, or any other cause which, by the
exercise of reasonable diligence, said Party is unable to prevent. Neither GTECH
nor VENDOR shall be liable to the other for any delay in or failure of
performance under this Agreement due to a "Force Majeure" occurrence provided
that the Party claiming Force Majeure notifies the other in writing within five
(5) calendar days of the commencement of the codition preventing its performance
and its intent to rely theron to extend the time for its performance of this
Agreement.
17. CONFIDENTIALITY
VENDOR acknowledges and agrees that all documents, data, software or
information in any form which are provided by GTECH (hereinafter "Confidential
Information") is the property of GTECH. VENDOR will receive and maintain all
Confidential Information in the strictest confidence and, except as provided
herein, shall not use Confidential Information for its own benefit or disclose
it or otherwise make it available to third parties without the prior written
consent of GTECH. VENDOR agrees to limit the use of Confidential Information to
only those of its employees who need the Confidential Information for the
purpose of this Agreement and to advise all of its employees of GTECH's rights
in the Confidential Information. Nothing in this Agreement shall be construed as
granting or conferring any rights by license or otherwise in any Confidential
Information, trademarks, patents or copyrights of GTECH, except for the limited
purposes of VENDOR's performance hereunder. Confidential Information does not
include information which is: (a) in the public domain; (b) already known to the
Party to whom it is disclosed (hereinafter "Recipient") at the time of such
disclosure; (c) subsequently received by Recipient in good faith from a third
party having prior right to make such subsequent disclosure; (d) independently
developed by Recipient without use of the information disclosed pursuant to this
Agreement; or (e) approved in writing for unrestricted release or unrestricted
disclosure by the Party owning or disclosing the information (hereinafter
"Discloser"). In the event either VENDOR is required or legally compelled to
disclose any of the Confidential Information as a result f a legal process or
pursuant to governmental action, the VENDOR shall give prompt written notice to
GTECH so that GTECH may seek a protective order or other appropriate remedy
and/or waive compliance with the provisions of this Agreement. At the request of
a Discloser, and in any event upon the expiration or other termination of this
Agreement, each Recipient shall promptly deliver to Discloser all products,
components and equipment provided by Discloser as well as all records or other
things in any media containing or embodying Discloser's Confidential Information
within its possession or control which were delivered or made available to each
Recipient during or in connection with this Agreement, including any copies
thereof.
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18. PUBLIC ANNOUNCEMENTS
VENDOR agrees not to make any public announcements regarding this
Agreement or to disclose any of the terms and conditions hereof to any third
party without prior written consent of GTECH.
19. NOTICES
All notices required or contemplated by this Agreement shall be deemed
effective if written and delivered in person or if sent by registered mail,
return receipt requested, to GTECH at the address shown above to the attention
of GTECH's Representative or to VENDOR at the address shown above to the
attention of VENDOR's Representative; or such other persons or addresses as may
hereafter be designated by the respective Parties. A copy of all Notices sent to
GTECH shall be addressed to the Office of General Counsel at the address shown
above.
20. ASSIGNMENT
This Agreement and the disclosure of Confidential Information hereunder
are made in reliance upon VENDOR's reputation, skill and expertise. VENDOR
agrees not to assign this Agreement or any right or obligation hereunder without
the prior written consent of GTECH in each instance. Any attempted assignment
shall be void. This covenant not to assign without consent shall include
assignments to parents or subsidiaries of VENDOR or any transfer of a majority
interest in VENDOR. The consent by GTECH to any assignment shall not constitute
a waiver of the need for consents for any further assignments. GTECH may not
unreasonably withhold consent to an assignment, and shall restrict its basis for
withholding consent to the proposed assignee's status as a competitor to GTECH,
an entity of inferior financial status to VENDOR or an entity whose business
practices are such that the likelihood of breach is increased.
GTECH may assign its rights and/or obligations hereunder, in whole or
in part, to any parent or subsidiary corporation, or any affiliate, without the
consent of, but upon notice to, VENDOR.
21. TERM AND TERMINATION
21.1 Term. This Agreement will commence on the 28th day of June 2002
("Effective Date"), and shall continue for five (5) years ("Term") unless
terminated earlier as provided in this Agreement. Unless either Party notifies
the other in writing at least ninety (90) calendar days before the end of the
Term of its intent to terminate this Agreement at the end of the Term, this
Agreement will be extended automatically and will continue in effect without any
volume commitment until terminated by either Party on ninety (90) calendar days
prior written notice. Unless otherwise agreed in writing, the prices for the
Products during any such extension shall be the same prices in effect at the end
of the Term.
21.2 Termination by GTECH. GTECH may terminate this Agreement at any
time if (a)
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*; (b) VENDOR, or VENDOR's parent or a wholly owned subsidiary of VENDOR, is the
subject of trade sanctions by the United States government, or any other
government, or quasi-governmental agency which materially affects GTECH's
ability to sell, lease, or maintain the Product; (c) VENDOR attempts to assign
this Agreement or any obligation hereunder without GTECH's consent; (d) any
assignment is made of VENDOR's business for the benefit of creditors, or if a
petition in bankruptcy is filed by or against VENDOR and is not dismissed within
ninety (90) calendar days, or if a receiver or similar officer is appointed to
take charge of all or part of VENDOR's property, or if VENDOR is adjudicated a
bankrupt; or (e) the Products are infringing and the VENDOR is unable to procure
a right for GTECH to continue to use the Products as set forth in Section 11
hereof.
21.3 Termination by VENDOR. VENDOR may terminate this Agreement if: (a)
GTECH fails to perform any of its obligations hereunder and such condition has
not been cured within thirty (30) calendar days of written notice thereof by
VENDOR; provided that, VENDOR may not terminate this Agreement for reason of
non-payment by GTECH of any disputed amounts, or (b) if any assignment is made
of GTECH's business for the benefit of creditors; or, (c) if a petition in
bankruptcy is filed by or against GTECH and is not dismissed within ninety (90)
calendar days, or if a receiver or similar officer is appointed to take charge
of all or part of GTECH's property, or if GTECH is adjudicated a bankrupt.
21.4 Obligations of Termination. Upon expiration or termination ofthis
Agreement for any reason, VENDOR shall promptly deliver to GTECH all tools,
equipment, software documentation and other materials furnished to VENDOR by
GTECH hereunder. VENDOR's obligations under Sections 2, 8, 9, 10, 11, 12, 14,
17, 18, 20, 21 and 24 hereof shall survive expiration or earlier termination of
this Agreement or its extensions regardless of the manner of termination.
22. CONFLICTING PROVISIONS
In the event of a conflict between the terms and conditions of this
Agreement and the terms and conditions of any Purchase Order, typewritten terms
added by GTECH on a Purchase Order shall control the terms and conditions of
this Agreement, and the terms and conditions of this Agreement shall control the
printed terms and conditions on any Purchase Order. Typewritten terms added by
GTECH on any individual purchase order shall apply only to the Products and/or
Service ordered under such individual Purchase Order. The terms and conditions
of this Agreement and, if applicable, the typewritten terms and conditions added
by GTECH on any Purchase Order shall prevail over any inconsistent terms and
conditions contained in any VENDOR acknowledgment or invoice.
Notwithstanding any permitted assignment, VENDOR shall remain
responsible for the full performance of all of the terms and conditions of this
Agreement.
23. MANUFACTURING RIGHTS Attachment 7 will govern Manufacturing Rights.
* Confidential treatment requested
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24. MISCELLANEOUS
This Agreement and Attachments and Purchase Orders issued and accepted
hereunder set forth the entire understanding of the Parties with respect to the
Products and merges all prior written and oral communications relating thereto.
It can be modified or amended only in a writing signed by a duly authorized
representative of each Party. Section headings are provided for the convenience
of reference only and shall not be construed otherwise.
No failure to exercise, or delay in exercising, on the part of either
Party, any right, power or privilege hereunder shall operate as a waiver
thereof, or will any single or partial exercise of any right, power or privilege
hereunder preclude the further exercise of the same right or the exercise of any
other right hereunder.
This Agreement is made pursuant to and shall be governed by the laws of
the State of Rhode Island, without regard to its rules regarding conflict of
laws. The Parties agree that the courts of the State of Rhode Island, and the
Federal Courts located therein, shall have exclusive jurisdiction over all
matters arising from this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT ON
THE DATES MENTIONED BELOW.
VENDOR GTECH CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------- --------------------------------------------
Print ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------------
Title Chairman, President and CEO Title Vice President Technology Operations
----------------------------------------- -----------------------------------------
Date July 2, 2002 Date July 2, 2002
------------------------------------------ ------------------------------------------
By By
-------------------------------------------- --------------------------------------------
Print Print
----------------------------------------- -----------------------------------------
Title Title
----------------------------------------- -----------------------------------------
Date Date
----------------------------------------- ------------------------------------------
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Attachment 1
Product Specification
Thermal Printer GLP305/SA
▇▇-▇▇▇▇-▇▇ rev B
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Attachment 2
Pricing
Unit Price for any quantity is $*
* Confidential treatment requested
22
Attachment 3
Spare Parts Pricing
VENDOR will provide GTECH with a complete spare parts list with prices within
six (6) months of first production shipment. *.
* Confidential treatment requested
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Attachment 4
Warranty information
ASSY THRM PTR GLP305SA RS232/RS485
VENDOR will provide GTECH with a flat rate price quotation for out of warranty
printer repairs upon request, no earlier than six (6) months after first
production shipments. The price for flat rate repair will not exceed $* per
printer regardless of repair action.
GTECH Part Number GLP305SA
----------------- --------
GTECH Part description
Vendor Part Number GLP305SA
Manufacturer TransAct Technologies
Vendor Address ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vendor repair location(s) TransAct Technologies
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RMA Contact Person Name - ▇▇▇▇▇ ▇▇▇▇▇▇
Tel -607-257-8901
Fax - 607-257- 3911
Email dheiden@transact-tech
Manufacturer's Part Number GLP305SA
Warranty 27 months from date of shipment
from Transact
How to read manufacturer date On serial number plate, a letter
code followed two numbers. Letters
A-L correspond to the months of the year
(A = January, B= February etc.) numerals
are for the year (02 = 2002, 03 = 2003
etc.). Warranty status is determined by
serial number.
Out of Warranty repair cost To be quoted by VENDOR as noted
above
Turn-around time for repair Twenty (20) calendar days from
receipt of Product
Procedure for requesting an Call, email or fax RMA request to
RMA and returning the material Ithaca Tech Support. GTECH
for repair or replacement contact should be prepared with
printer serial number and an
explanation of the problem.
* Confidential treatment requested
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Attachment 5
General Packaging Specifications
The shipping container shall be designed to meet GTECH packaging specification
▇▇-▇▇▇▇-▇▇
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Attachment 6
Tooling
There is no GTECH owned tooling in this Product.
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Attachment 7
Manufacturing Rights
1. Manufacturing Documentation Package. * of placement of GTECH's first Purchase
Order for production volume of Products, VENDOR agrees to deliver to GTECH, or
to a mutually agreed upon escrow agent, all of the documentation and other
information used by VENDOR and required to manufacture, test, maintain and
support the Products (herein, the "Manufacturing Package") including, without
limitation, the full and complete schematic diagrams, assembly drawings,
structured Bills of Materials, printed circuit board artwork, parts and vendor
lists, test specifications, assembly aids and software in both machine readable
source and object forms. As a part of the Manufacturing Package, VENDOR also
agrees to provide unrestricted access to and joint control of vendor toolings,
agency approval files (FCC, UL, CSA, VDE, etc.), a complete description of any
special tools, fixtures and test equipment that are required but are not readily
available in the marketplace. Neither GTECH nor escrow agent will have any right
to use the "Manufacturing Package" except as set forth in Section 3 below or as
otherwise authorized by VENDOR.
2. Updates; Verification; Expenses. VENDOR agrees to update the "Manufacturing
Package" as necessary to keep the package current with the latest version of the
Products delivered to GTECH under this Agreement. If the "Manufacturing Package"
is delivered to any person or entity other than GTECH, GTECH shall have the
right to inspect the package to verify the contents of the "Manufacturing
Package" and VENDOR's compliance with this Section. VENDOR will pay all costs
and expenses of any kind associated with the preparation and maintenance of the
"Manufacturing Package", as well as any fees of any person other than GTECH
holding the "Manufacturing Package".
3. Right to Manufacture. If any one or more of the following events occurs,
GTECH shall have the right, including the rights under any of the VENDOR's
applicable patents and copyrights, to use the "Manufacturing Package" to
manufacture or have manufactured the Products. When triggered by events under
sections e.) or f.) below, GTECH shall have the right, including the rights
under any of the VENDOR's applicable patents and copyrights, to use the
"Manufacturing Package" to manufacture or have manufactured the Products for a
period not to exceed one year from the occurrence of the triggering event.
a.) VENDOR ceases 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 VENDOR;
b.) A petition in bankruptcy is filed by or against VENDOR and is not
dismissed within ninety (90) calendar days thereafter or if a
receiver, trustee in bankruptcy or similar officer is appointed to
take charge of all or a substantial part of VENDOR's property;
c.) If GTECH has a commercially reasonable and documented basis for
believing that
* Confidential treatment requested
27
VENDOR has become unable to materially perform the material
provisions of this Agreement and VENDOR fails to provide GTECH
commercially reasonable assurances of future performance * of
GTECH's request for such assurances (which request will specify the
assurances required);
d.) VENDOR assigns this Agreement in violation of Section 20 of this
Agreement; or
e.) VENDOR has materially breached any material provision of this
Agreement and failed to cure such breach * after receiving written
notice of such breach from GTECH.
f.) VENDOR has materially failed to fulfill its delivery obligations,
including but not limited to, repeated late deliveries. GTECH will
notify VENDOR in writing that GTECH intends to exercize this
clause. GTECH shall not have the right to manufacture pursuant to
this clause if VENDOR, during * after receipt of notification, takes
commercially reasonable steps to correct the recurrence of delivery
problems to the reasonable satisfaction of GTECH.
Except as provided in this Section or as otherwise authorized by VENDOR, neither
GTECH nor the escrow agent shall have any right to use the "Manufacturing
Package" for any purpose and this Attachment 7 shall not be construed as a
transfer or assignment of VENDOR's intellectual property rights, except as
specifically necessary for the manufacture and sale of the Products under this
Agreement.
* Confidential treatment requested
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