ex10_33.htm


    
      

    

    Exhibit
      10.33

    


    MasterCard
      PayPass Agreement

    


    This
      Agreement is dated as of November 8, 2007 (the “Effective Date”) between
      MasterCard International Incorporated (“MasterCard”) and USA Technologies Inc.
      (“USAT”) and governs the terms under which USAT shall secure new vendors to
      participate in the MasterCard PayPass Program (the
“Program”).

    


    WHEREAS,
      MasterCard has developed and launched the Program, as more generally described
      in Section 1 below;

    


    WHEREAS,
      MasterCard desires to expand the acceptance of the Program into additional
      markets (each a “Target Market”), as set forth on Exhibit 1 attached hereto and
      made a part hereof, and to secure the participation of new brands/vendors (each
      a “Vendor”), as set forth on Exhibit 1, in the Program in such Target Markets;
      and

    


    WHEREAS,
      USAT is a hardware manufacturer and processor provider for vending machines
      (each a “Vending Machine”) owned by Vendors] which have agreements with USAT
      with respect to such Vending Machines;

    


    WHEREAS,
      MasterCard and USAT desire to have USAT secure such Vendors’ participation in
      the Program at  Vending Machines in the Target Markets pursuant to the
      terms of this Agreement;

    


    NOW,
      THEREFORE, the parties hereby agree as follows:

    


    1.  Definitions.

    


    
      	
              ·

            	
              The
                Program generally.  MasterCard has developed the
                capability to embed radio-frequency chips (each, a “PayPass Chip”) into
                MasterCard-branded payment cards, instruments or devices (each, a
“PayPass
                Device”).  The PayPass Chip will allow holders of a PayPass
                Device to transmit payment account information to PayPass Device
                account
                readers (each, a “PayPass Reader”) by touching or placing in proximity the
                PayPass Card to the PayPass Reader, thereby affecting an authorization
                request and/or otherwise initiating a MasterCard transaction (“PayPass
                Transaction”).

            


    

    


    
      	
              ·

            	
              An
                “Approved PayPass Reader” is a radio frequency terminal that adheres to
                ISO 14443, has been approved by MasterCard’s terminal type approval
                process, and is integrated into the POS system or connects via a
                port
                connection.  For the purposes of this contract a “strip”
                connection is not considered “Type Approved”.  Additionally, a
                Type Approved Reader must be loaded with the MasterCard PayPass
                application and be able to pass values in data elements 22 and 61
                as
                described in Section 4 below.  Unless otherwise specified in
                this Agreement, an “Approved PayPass Reader” shall be considered an
                “Approved PayPass Reader (e-Port)”
device.

            


    

    


    2.  Timing
      of the Program; USAT’s Efforts.  USAT shall use its best
      efforts to secure the successful installation of 4,051 Approved PayPass Readers
      at Vending Machines in the Target Markets, which shall be successfully installed
      no later than December 31, 2007.

    


    3.  MasterCard’s
      specific obligations.  In addition to its other obligations
      under this Agreement, MasterCard shall do the following in connection with
      the
      Program:

    


    
      	
              ·

            	
              Processor
                support. Prior to the beginning of the Program period
                MasterCard will endeavor to work with USAT’s merchant processor to test
                PayPass Readers provided to USAT in connection with Program and to
                test
                PayPass Transactions.

            


    

    


    
      	
              ·

            	
              Advertising. MasterCard
                will develop MasterCard advertising and promotional materials promoting
                the Program, the content, form, and scope of which shall be determined
                by
                MasterCard in its sole discretion, and include in same advertising
                and
                promotional materials a call to action encouraging holders of PayPass
                Cards to use them at Vending Machines as well as other participating
                merchants’ locations.

            


    

    


    
      	
              ·

            	
              Staff
                training.  MasterCard will provide USAT
                staff training materials.

            


    

    


    
      	
              ·

            	
              Point-of-purchase
                materials. Provided that MasterCard determines
                that it is commercially reasonable based on the Target Market locations
                of
                the Vending Machine, MasterCard may develop and make available to
                USAT
                point-of-purchase materials (“POP Materials”) for use at such locations
                during the Term (defined in Section
                10).

            


    

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    
      	
              ·

            	
              Consumer
                research.  MasterCard may conduct, and share with
                USAT the results of, general consumer research relating to the
                Program.

            


    

    


    
      	
              ·

            	
              Financial
                support.  In consideration of USAT securing new
                Vendors, MasterCard will reimburse USAT for Terminal Support (defined
                below) related to the acquisition and installation of Approved PayPass
                Readers.  For the purposes of this Agreement, Terminal Support
                shall mean the cost of Approved PayPass Readers, software development
                and
                Managed Services (as defined below) required to
                install the hardware at the Vending Machines, which the parties agree
                will
                total US $395 for each Approved PayPass Reader successfully deployed
                at
                each Vending Machine, subject to the next sentence.  The
                Terminal Support paid to USAT by MasterCard will not exceed
                US$1,600,145.  MasterCard will pay the Terminal Support to USAT
                as follows:

            


    

    


    
      	
            	
              ·

            	
              US$400,036.25
                upon execution of this Agreement;
                and

            


    

     

    
      	
            	
              ·

            	
              Balance
                to be paid net 45 days from any shipment of Approved PayPass
                Readers

            


    

    


    In
      the
      event that 4,052 Approved PayPass Readers are not successfully installed at
      Vending Machines by December 31, 2007 in accordance with the terms of this
      Agreement, USAT shall refund to MasterCard a pro rata share of the foregoing
      Terminal Support based on the shortfall (if any) of the number of Approved
      PayPass Readers that have not been successfully installed multiplied by US$395,
      pursuant to the following formula:

    


    (2,532
–
      x)US$395 = refund to MasterCard

    


    where
“x”
      is the actual number of successfully installed Approved PayPass Readers and
      assuming that USAT has been paid by MasterCard in full at $395 per Approved
      PayPass Reader.

    


    
      	
              ·

            	
              USAT
                will provide to MasterCard weekly reporting which outlines the number
                of
                Approved PayPass Readers installed at each Vending
                Machine.

            


    

    


    4.  USAT’s
      specific obligations.  In addition to its other obligations
      under this Agreement, USAT shall do the following in connection with the
      Program:

    


    
      	
              ·

            	
              Reader
                installation.  From thirty days prior to
                the Program Launch Date (as defined in Section 10 below) and throughout
                the Term, USAT shall cause Approved PayPass Readers to be installed
                at
                Vending Machines, and remain installed at such Vending Machines and
                shall
                test and provide adapters to connect Approved PayPass Readers to
                such
                payment acceptance devices at such Vending
                Machines.

            


    

    


    
      	
              ·

            	
              Acceptance
                Decals. USAT shall cause the display of
                PayPass Acceptance decals (i.e. vending machine decals) at each Vending
                Machine.

            


    

    


    
      	
              ·

            	
              POP
                Materials.  USAT shall ensure that all
                POP Materials provided by MasterCard shall be displayed at all Vending
                Machines in accordance with instructions provided by
                MasterCard.  USAT shall not itself alter, nor shall USAT allow
                the alteration of, any POP Materials without the written consent
                of
                MasterCard.

            


    

    


    
      	
              ·

            	
              Prominence. 
                USAT agrees that MasterCard’s PayPass logo will be prominently displayed
                on Approved PayPass Readers and brand logos shall be placed in
                alphabetical order: Expresspay, PayPass, Visa.  No Competing
                Brand mark may be larger than the PayPass brand
                mark.

            


    

    


    
      	
              ·

            	
              Staff
                training.  USAT shall train all of its applicable
                personnel in the use of the Approved PayPass Readers installed at
                Vending
                Machines in accordance with materials approved by
                MasterCard.

            


    

    


    
      	
              ·

            	
              Use
                of Vendor name and logotypes.  To the extent that
                USAT obtains such rights from Vendors, USAT shall permit MasterCard
                and
                Participating Issuers (i.e., MasterCard customer financial institutions
                that participate in the Program) to use Vendor’s trademarks, trade names,
                and logotypes (collectively, “Logotypes”) in connection with MasterCard’s
                and Participating Issuers’ promotion of the Program during the
                Term.  USAT cause Vendors to allow MasterCard and Participating
                Issuers the right to use Logotypes in connection with the Program
                during
                the Term, subject to Vendor’s review and approval (which review and
                approval shall not be unreasonable withheld or delayed).  Except
                as expressly stated in the preceding sentence, nothing contained
                in this
                Agreement shall grant to either party any right, title, or interest
                in or
                to the other party’s, or Vendor’s, intellectual property.  USAT shall cause
                each
                Vendor to provide MasterCard with camera-ready art of Logotypes
                at
                least thirty days prior to the beginning of the Program. USAT shall
                obtain
                the agreement of each Vendor that it shall not enter into any marketing
                arrangement with Competing Brands or any other financial institutions
                related to the Vending Machines and their locations included in this
                Agreement.

            


    

     

    
      
        
        

      

      
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              ·

            	
              Marketing/Promotion. USAT
                shall cause Vendors to provide promotional offers to MasterCard customer
                financial institutions, to be used as statement inserts, to build
                awareness with MasterCard PayPass cardholders of the Vending Machines
                that
                accept PayPass Devices. Vendor shall have sole discretion as to the
                value
                of the promotional offer, and is responsible for the printing costs
                of
                generic offers and the redemption of all offers (generic or customized)
                as
                well as any liabilities associated therewith.  MasterCard
                customer financial institutions will include these offers in their
                cardholder statements at their discretion and may request creative
                input,
                and will seek approval of any customized offer from both MasterCard
                and
                Vendor.

            


    

    


    
      	
              ·

            	
              Program
                results.  USAT shall provide to MasterCard the
                reports listed in Schedule A with the frequency listed in Schedule
                A.  USAT agrees that such reports shall become the property of
                MasterCard.

            


    

    


    
      	
              ·

            	
              Active
                support.  USAT shall actively support MasterCard
                in its execution of the Program and shall provide MasterCard in good
                faith
                with such reasonable non-financial consultative advice as MasterCard
                may
                reasonably request to ensure the successful execution of the
                Program.

            


    

    


    
      	
              ·

            	
              Data
                Element 22 and 61. USAT shall cause and shall
                ensure that each Vending Machine must support implementation of Data
                Element 22 and 61 by: (i) ensuring that such data elements are in
                the POS
                software for all MasterCard PayPass Devices that are accepted at
                Vending
                Machines; and (ii) causing its MasterCard transaction processor to
                submit
                such data elements on Pay Pass Device transactions submitted to MasterCard
                at least one month prior to the Launch Date for the Vending
                Machines.

            


    

    


    
      	
              ·

            	
              PayPass
                Web Site. USAT shall cause each Vendor to
                allow MasterCard to list PayPass accepting Locations on MasterCard’s
                PayPass Vendor locator web site.

            


    

    


    5.  Press
      release. USAT shall use its best efforts to cause each Vendor to agree
      to issue a press release announcing its intention to accept MasterCard PayPass
      within one week of the execution of this Agreement.  Any
      press release or communication related to this Agreement, the Program or to
      the
      other party must be reviewed and approved by USAT and MasterCard, and any
      affected Vendor, prior to release to the public or any third
      parties.  USAT and MasterCard agree that such release shall be at a
      time to be mutually agreed by the parties.

    


    6.  Confidentiality
      obligations. USAT acknowledges that in the course of the Program
      MasterCard will disclose to USAT certain information relating to the Program
      that MasterCard deems to be proprietary.  Any such information is
      referred to as “Confidential Information” in this Agreement; provided
      that Confidential Information shall not include information that (i) at the
      time of disclosure was, or becomes, part of the public domain (through a source
      other than the USAT); (ii) is lawfully obtained from a third party that was
      not
      under, and did not impose, an obligation of confidentiality with respect to
      such
      information; (iii) is independently developed by the USAT without use of, or
      reference to, Confidential Information; and (iv) was known by USAT prior to
      disclosure by MasterCard.  During the Term (defined below) and for a
      period of two (2) years thereafter, USAT will (a) use Confidential Information
      only in connection with its participation in the Program; (b) not copy any
      Confidential Information except as expressly permitted by MasterCard; (c) not
      disclose Confidential Information to any third party except as expressly
      permitted in writing by MasterCard; (d) limit dissemination of Confidential
      Information to its officers and employees that have a “need to
      know”;  and (e) not remove or obscure proprietary rights notices that
      appear on Confidential Information and copies thereof.  USAT shall
      return all Confidential Information to MasterCard ten (10) days following the
      earliest to occur of the end of the Term or MasterCard’s demand.  USAT
      shall not be deemed to have violated this Agreement if it discloses Confidential
      Information in response to a bona fide subpoena or other lawful process
      issued by a court or agency of competent jurisdiction, provided USAT shall
      have
      given MasterCard at least ten (10) days’ written notice of its intention to make
      such disclosure.  USAT shall safeguard the confidentiality of the
      Confidential Information using the same standard it employs to safeguard its
      own
      confidential information of like kind, but in no event less than a commercially
      reasonable standard of care.  The parties acknowledge that any breach
      of this Section 6 shall cause immediate and irreparable harm to MasterCard
      for
      which compensation by money damages will be insufficient redress; accordingly,
      the parties agree that upon any breach of this Section 6 by USAT, MasterCard
      shall be entitled to injunctive and other equitable relief in connection with
      same.  The provisions of this Section 6 shall survive the termination
      of this Agreement.

     

    
      
        
        

      

      
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    7.  Indemnification.  Each
      party agrees to indemnify and hold the other (and the other’s members,
      affiliates, officers, agents, subcontractors, and employees) harmless from
      and
      against any and all liabilities, including attorneys fees, arising out of any
      third party claims arising out of the indemnifying party’s failure to observe
      its obligations under this Agreement, or, in the case of USAT, arising out
      of
      USAT’s participation in the Program, including USAT’s use at the Vending
      Machines or otherwise, of the PayPass Readers.

    


    8.  Limitation
      of
      Liability.  Except for
      a breach of the
      confidentiality obligations under Section 6, neither party shall be liable
      to
      the other party or its officers, directors, employees, agents, and affiliates
      for any indirect, special, punitive, exemplary, incidental or consequential
      damages. The foregoing limitation of liability shall apply to any claim or
      cause
      of action under law or equity whatsoever, including contract, warranty, strict
      liability, or negligence, but excluding any breach of the confidentiality
      obligations under Section 6, even if a party has been notified of the
      possibility of such damagesor claim. Except for
      liabilities
      arising out of either party’s breach of Section 6, or a party’s willful
      misconduct, neither party shall be liable to the other for an amount in excess
      of the total amounts paid by MasterCard to USAT under this
      Agreement.

    


    9.  Miscellaneous
      expenses.   Each party agrees that it will bear its
      respective expenses incurred in connection with its participation in the
      Program.

    


    10.  Term
      and termination.  Unless terminated sooner as provided below,
      the term of this Agreement shall commence on the Effective Date and shall end
      72
      months after the Launch Date (the “Term”).  Launch Date shall mean the
      first date at which all of the Vending Machines are able to process MasterCard
      PayPass Transactions.  Upon expiration of the Term, USAT shall cause
      each Vending Machine to have a continuing obligation to accept PayPass as
      provided hereunder as along as any form or type of contactless radio frequency
      payment device or card is accepted at such Vending Machine.

    


    11.  Miscellaneous.  This
      Agreement may not be assigned by USAT, by operation of law or otherwise, without
      the prior written consent of MasterCard.  This Agreement is binding on
      the parties successor and assigns.  This Agreement shall be construed
      in accordance with the substantive laws of the New York. The failure of either
      party to enforce any of the provisions hereof shall not be construed to be
      a
      waiver of the right of such party thereafter to enforce such
      provision.  This Agreement constitutes the entire agreement of the
      parties with respect to the Program and may not be amended except by a writing
      signed by both parties.

     

     

    USAT

    USA
      TECHNOLOGIES INC.

    


    By:
      /s/
      Stephen P. Herbert

    Print
      name: Stephen P. Herbert

    Print
      title: President/COO

     

    EXECUTED
      as of the Effective Date.

    


    MasterCard:

    MASTERCARD
      INTERNATIONAL INCORPORATED

    


    


    By:
      /s/
      TJ Sharkey Jr.

    Print
      name: TJ Sharkey Jr.

    Print
      title: SVP- Merchant Sales

    


    
      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

    

    


    Schedule
      A

    


    
      	
              Report
                Name

            	
              Description/Format

            	
              Frequency

            
	
              Sales
                by Tender Type

            	
              Percent
                of sales transactions, percent of sales dollars and average transaction
                size for MasterCard, and other competing RF Cards
                type,   Data by store.  Format
                flexible.

            	
              Every
                3 months (reflecting monthly data, including the 2 month prior to
                installation).

            
	
              Operational
                Efficiency

            	
              Elapsed
                time to transact by PayPass Device Payment, magnetic stripe
                payment.  Format Flexible.

              Any
                operational efficiencies noted by merchant that outlines the improvement
                or concerns with the use of PayPass product.

            	
              Every
                6 months (reflecting monthly data for 6 months including the month
                prior
                to installation).

            


    

    


    
      	
              Exhibit
                1

               

            


    

    
      	
              ·

            	
              Target
                Markets (alphabetical
                order).

            


    

     

    
      	
            	
              ·

            	
              Boston,
                MA

            


    

    
      	
            	
              ·

            	
              Cleveland/Cincinnati,
                OH

            


    

    
      	
            	
              ·

            	
              New
                York, NY

            


    

    
      	
            	
              ·

            	
              Seattle,
                WA

            


    

     

     

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