EXHIBIT 10.2
Xxxxxxx Xxxxx & Root Services, Inc.
Agreement No. CA-00062
This Agreement is entered into as of the 20 December 2004, by and between
Xxxxxxx Xxxxx & Root Services, Inc. (hereinafter "KBR" or "Company"), whose
offices are located at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000 and MachineTalker, Inc. (TIN: 00-0000000 ) whose address is 000 Xx Xx Xxxx
Xxxxxx, Xxxxx Xxxxxxx, XX 00000 (hereinafter "MACHINETALKER" or "Consultant").
1. TERM AND SCOPE OF AGREEMENT:
1.1 Term
1.1.1 Effective Dates
The Agreement shall be valid and effective from the date of its execution by
both parties but in no event prior to 20 December 2004 or after 31 July 2005.
1.1.2 Termination
The Agreement may be terminated at any time by either party upon written
notification. Such notification shall not relieve either party of its respective
liabilities that may have accrued prior to termination.
1.1.3 Renewal
This Agreement may be renewed for additional terms after the scheduled
completion date upon mutual written agreement between the parties. If not
renewed, the Agreement shall automatically expire at twelve midnight on 31 July
2005.
1.1.4 Licensed Product and Technology
"LICENSED PRODUCT" means those certain devices that employ the use of the
Licensed Technology and that are manufactured and sold by MACHINETALKER that are
intended to enable users of those devices to track inventory, containers and
other similar packages. "LICENSED TECHNOLOGY" means the Documentation and the
Software that enables the Licensed Products to transmit and receive information
via self-coordinated machine network by employing MACHINETALKER's Simple Machine
Management Protocol (SMMP(R)) technology, as described in U.S. Patent
Application 2004/0114557. The scope of the technology disclosed within U.S.
Patent Application 2004/0114557, and licensed herein, shall be considered
limited to such aspects of the technology as reasonably relates to applications,
systems, or solutions that track inventory, containers and other similar
packages.
1.1.5 Changes
All changes, of any type, to this agreement affecting either the term or the
value shall require the prior written agreement of both parties in the form of a
modification to this agreement. Should MACHINETALKER elect to proceed with a
change prior to finalization of written modification to this agreement, it shall
be at the sole risk and liability of MACHINETALKER.
1.2 Scope
1.2.1 Introduction
MACHINETALKER will adapt their MachineTalker(R) product family of wireless mesh
networking processors for placement on-board of shipping containers and
materials, inventory, packages or other similar items in transit and storage to
provide for tracking of those items. Specifically, the MiniTalker(R) and/or
TagTalker(R) products will be tested in conjunction with KBR requirements to
determine choice of radio, battery and methods for mounting within the Shipping
containers and materials.
1.2.2 Background
The tracking or finding of items will bring significant economic savings while
minimizing the problem of loss of valuable contents due to theft or spoilage.
1.2.3 KBR Project
The Project will involve the coordinated effort of systems personnel from both
MACHINETALKER and KBR. The MACHINETALKER staffing will include systems
engineering personnel to formulate how MachineTalker's(R) will be adapted
physically and what new Applications Software is to be created to meet KBR
requirements. KBR staffing will include those who will specify aspects of
shipping processes, what is to be detected, what actions will be taken, what is
to be reported, and how it is to be reported.
Subsequently, the MACHINETALKER team will test variations of the basic
MachineTalker(R) product to optimize performance in KBR specified environment.
MACHINETALKER will implement Applications Software to service sensors, accept
cargo information and to report in the manner specified for use by KBR tracking
system software.
The end result is to equip the items with the means for tracking and security
and to do so in concert with KBR tracking system. The Project tasks to
accomplish this goal are tied to "milestones" as expressed below and in the
Project Schedule and Payment Deliverable Chart. Each deliverable shall also
include submission of a written report addressing the goal of the deliverable,
the status of each goal and an assessment of the progress of the project.
1.2.4 Project Specifics
Task #1 - All hands meeting(s) among Project team members to discuss and
determine all operational issues to be resolved by the use of on-board means for
security and tracking. The result of these meetings will be to publish a
task-oriented schedule and guidelines for testing, evaluation and specification
for the requisite Applications Software to fulfill the stated goals of the
Project. MACHINETALKER shall prepare and submit a written report which shall
summarize the findings of the all hands meeting, including but not necessarily
limited to, the specification for the end product and its interfaces.
Task #2 - Test and evaluation of the insertion of wireless products into the
shipping container environment. These tests will be conducted using
off-the-shelf MiniTalkers(R) to evaluate operation at different radio
frequencies and in different container locations and configurations. The result
of these tests will be to find the optimum radio frequencies and the optimum
mounting locations within the Shipping containers and materials. Radio
frequencies which are prohibited for use by the U.S. Government will not be
considered. MACHINETALKER shall prepare a written report upon completion of this
Task #2 and, in conjunction with the report, submit a manufacturing
specification for the production hardware configuration for KBR MiniTalker(R)
unit.
Task #3 - Codification of KBR freight tracking and inventory software I/O
language (protocol) desired by KBR Project team. This codification is
anticipated to be the foundation of the data content being sent by a
MACHINETALKER network or by individual shipping containers and materials, to KBR
tracking and control center. MACHINETALKER shall prepare a written report
summarizing this progress and accomplishments made under this deliverable
including the specification of the required format.
Task #4 - Selection of sensors and detectors that will be used on-board of the
shipping containers and materials and that will be serviced by KBR - MiniTalker
version. MACHINETALKER engineers will experiment with and test the proposed
sensing devices to ensure that their output parameters can be serviced by the
wireless node. Consideration shall be given to the type of sensor, sensor
output, power requirements and packaging. MACHINETALKER shall prepare and submit
a report which will include a specification on implementing the sensor hardware
and the Applications Software to support each sensor type and provide for the
range of sensor types and their relative physical attributes along with draft
information about their use.
Task #5 - Finalization of the design of the end-product including hardware and
software documentation to build units to meet KBR requirement, field testing of
the first production units with the Applications Software and, incorporation of
changes that will improve the end product. MACHINETALKER shall prepare and
submit an initial report that, at minimum, includes a Xxxx of Materials for the
manufacture of units in quantity, a summary of Applications Software changes to
improve operation in the field and incorporates detailed results of testing in
the field. MACHINETALKER shall prepare a final report that summarizes the issues
of operating wireless sensors on-board Shipping containers and materials,
descriptions of the form-fit-and function, details on installation, use and
maintenance, methodology for determining placement of sensors and wireless nodes
on or within containers and guidelines for use of different types of sensors of
interest to shipping and maintenance personnel.
1.2.5 Go-No-Go Decision
As expressed in Section 1.2.6 below, KBR, on or about Week 14, at its sole
discretion, shall determine if the project will proceed. Election to continue
the project must be made by the affirmative action of KBR to purchase the
Software License as set forth in Exhibit 6 of this Agreement. In the event KBR
elects to end the project, or fails to purchase the Software License, 1) KBR
shall waive any and all rights to the licenses technology and products, 2) KBR
and MACHINETALKER shall cease to have any right and/or obligation to each other,
3) MACHINETALKER shall be free of all encumbrances and limitations on the
intellectual property rights as it applies to the licensed technology and
products, and 4) KBR shall pay MACHINETALKER the remainder of any amounts not
yet paid toward the Firm Fixed Price of this Consulting Agreement.
1.2.6 Deliverables (to be completed in accordance with timeframes set forth in
the Relative Activity Periods vs. Tasks, Attachment A to this Agreement):
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EVENT DELIVERABLE
(Weeks After Initiation)
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Deliverable 1 Project Initiation, Team Assignment and Statement of Work
Project Initiation
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Deliverable 2 MACHINETALKER and KBR Project Personnel Planning Document
With KBR Project Team Participation, MACH INETALKER Project Leader will document the
Deliver Project Specification application and present the design goals of KBR Project, including Tasking,
(on or before: Week 5) Refined Schedule, and Potential Operational Problems to be resolved.
Publication by MACHINETALKER of KBR Project Specification.
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Deliverable 3
Testing of the Recommended Sensors and Detectors
With KBR Project Team Participation, MACHINETALKER designers will experiment with
different sensors and detectors that are relevant for use as attachments to the
Completion of Sensor/Detector final KBR-MiniTalker(R)product in the target application.
Evaluation
(on or before: Week 11) Publication of results listing of sensor/detector choices and recommendations on
purchase and packaging of these devices.
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Decision Point for Project KBR "Go-No-Go" project KBR evaluates current testing progress, and projects
probable likelihood of success for integration and solution formulation efforts. KBR
(on or before: Week 14) either ends the project or proceeds with the project based on KBR's evaluation.
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Deliverable 4 Incorporation of Project Findings, Recommendations and User's Information
Publication of User's Guide covering the intended application, product capability,
Completion of User's Guide installation requirements, links to KBR overall tracking system, parameters of use,
(on or before: Week 20 ) cautions, and maintenance procedures.
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Deliverable 5 Completion of MACHINETALKER Training of KBR User's and Field Installation Team
Incorporation of suggestions by KBR Project personnel. Such input to be the result
of KBR experience with the product in the field and may include recommended changes
for future units to refine planned use and for potential use in other KBR initiatives.
Project Completion Publication of the Final Report documenting the procedures used to install and
(on or before: Week 26) make use of KBR-MiniTalker(R) product provided by MACHINETALKER. Including information
on adapting other types of sensors and detectors to the MiniTalker with suggestions
on adapting and using those attachments.
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Note: Deliverables will include reports pertaining to the respective tasks and a
Final Report documenting use of KBR-MiniTalker(R), the Sensors and the
programming necessary to employ the units.
2. KBR Contact
Performance of the work under this Agreement is subject to the written
technical direction of the Technical Representative. "Technical direction"
means a directive to MACHINETALKER that approves approaches, solutions, designs
or refinements; fills in details or other wise completes the general
description of work or documentation items; shifts emphasis among work areas or
tasks; or furnishes similar instruction to MACHINETALKER. Technical direction
includes requiring studies and pursuit of certain lines of inquiry regarding
matters within the general tasks and requirements of this Agreement.
The Technical Representative does not have the authority to, and shall not,
issue any instruction purporting to be technical direction that:
(1) constitutes an additional assignment outside of the statement of work;
(2) constitutes a change to the Agreement or work required under the Agreement;
(3) constitutes a basis for an increase in the total price or the period of
performance under the Agreement;
(4) changes any of the expressed terms, conditions or specifications of the
Agreement;
(5) interferes with MACHINETALKER's right to perform the terms and conditions
of the Agreement.
The Technical Manager for KBR is Xxxxxx Xxxx or his assigns and is the point of
contact for all technical matters under this Agreement subject to the
limitations above.
Technical direction shall be issued in writing by the Technical Representative.
If, in MACHINETALKER's opinion, any instruction or direction by the Technical
Representative falls within items (1) through (5) above, MACHINETALKER shall
provide written notification to the Subcontract Administrator and shall not
proceed with the work required prior to negotiation and issuance of the
appropriate modification to the Agreement, or withdrawal of the
instruction/direction.
Name: Xxxx Xxxx
The Technical Representative : Telephone: 000-000-0000
for this Agreement shall be e-mail: xxxx.xxxx@xxxxxxxxxxx.xxx
The Subcontract Administrator Primary Contact
for the Agreement shall be: Name: Xxxxx X. Xxxxxxx
Telephone #: 000-000-0000
e-mail: xxxxx.xxxxxxx@xxxxxxxxxxx.xxx
3. Compensation
For performing the Services, MACHINETALKER will be compensated as follows:
Phase 1A: Firm-Fixed Price = $300,000.00 inclusive of services and all
other expenses including but not limited to travel within the continental
United States to be paid in firm-fixed-price increments in accordance with
the Payment Schedule set forth in Xxxxxxxxx 0, Xxxxx 0X below.
Phase 1B: Firm-Fixed Price = $100.00 per MiniTalker(R) not to exceed 250
MiniTalkers(R) or $25,000.00. Purchase and/or quantity purchased shall be
at the sole discretion of KBR. Units in excess of 250, if any, shall be
made available at a price of no more than $100.00 per unit during the
testing period.
Phase 1C: Firm-Fixed Price = $200,000.00 Software License (SMMP(R)). This
offer by MACHINETALKER for the purchase of the Software License shall be
accepted or rejected at the sole discretion of KBR, but acceptance by KBR
must be in the form of a Lump Sum payment received by MACHINETALKER prior
to 11:59pm on 01 April 2005. In the event KBR elects to purchase the
Software License, said License terms and conditions shall be as set forth
in Exhibit 6 of this Agreement. In the event KBR elects to end the project,
or fail to purchase the Software License, 1) KBR shall waive any and all
rights to the licenses technology and products, 2) KBR and MACHINETALKER
shall cease to have any right and/or obligation to each other and 3)
MACHINETALKER shall be free of all encumbrances and limitations on the
intellectual property rights as it applies to the licensed technology and
products.
3.1 Reimbursement for Certain Approved Expenses
(a) Travel Expenses All travel expenses shall be paid solely by MACHINETALKER
unless otherwise prior authorized in writing by modification to this
Agreement. Travel outside the continental United States is not authorized
under this Agreement. In the event travel outside of the continental United
States, to the Middle East or other hazardous areas is authorized under
this Agreement, MACHINETALKER acknowledges that additional insurance, such
as Defense Base Act Insurance and/or MediVac Insurance shall be required
prior to travel to such hazardous area.
(b) Other Expenses All other expenses shall be paid solely by MACHINETALKER
unless otherwise prior authorized in writing by modification to this
Agreement.
(c) Travel and Other Expense Documentation Requirements In the event, travel or
other expenses are authorized in writing for additional reimbursement under
this Agreement, all expenses including travel expenses shall be subject to
the travel requirements as set forth in the Federal Travel Regulation (FTR)
and shall be reimbursed as-incurred (at-cost) only after receipt of monthly
billing and supporting documentation (i.e., receipts and other payment
documentation without regard to amount) from MACHINETALKER.
3.2 Agreement Value and Change Requirement
3.2.1 Maximum Value
The maximum value of this Agreement shall not exceed the amount of $525,000.00.
3.2.2 75% Expenditure Notification Requirement Not Applicable.
3.2.3 KBR Entire Financial Obligation
The above-stated maximum value shall constitute the entire financial obligations
of KBR in connection with the services provided under this Agreement unless
otherwise agreed to in writing by the parties.
4. Payments and Invoicing.
Payment for consulting services and expenses incurred will be made within 30
working days of receipt and approval by KBR of a proper invoice for services
rendered in accordance with the Payment Schedule set forth below. No payment
shall be rendered prior to satisfactory completion of the appropriate
deliverable.
Payment Schedule
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Deliverable Amount Due Estimated Schedule
(on or before) Deliverable Description
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1 $60,000 Initiation Initiation Payment upon execution of agreement
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2 $60,000 Week 5 Refined Product Specification
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3 $60,000 Week 11 Completion Sensor Experimentation
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N/A None Week 14 Go-No-Go Decision to Proceed and/or to purchase/to not
purchase
Mini-Talkers
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4 $60,000 Week 20 Completion of Users' Guide
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5 $60,000 Week 26 Final Report
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Total Due $300,000 Firm Fixed Price
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Phase 1A: Firm-Fixed Price = $300,000.00 services and all other expenses
including but not limited to travel within the continental United States
which shall be paid in increments by deliverable in accordance with the
Payment Schedule set forth below upon satisfactory accomplishment of each
deliverables.
Phase 1B: Firm-Fixed Price = $100.00 per MiniTalker(R) not to exceed 250
MiniTalkers(R) or $25,000.00. Purchase and/or quantity purchased shall be
at the sole discretion of KBR. Units in excess of 250, if any, shall be
made available at a price of no more than $100.00 per unit during the
testing period.
Phase 1C: Firm-Fixed Price = $200,000.00 Software License (SMMP(R)). This
offer by MACHINETALKER for the purchase of the Software License shall be
accepted or rejected at the sole discretion of KBR, but acceptance by KBR
must be in the form of a Lump Sum payment received by MACHINETALKER prior
to 11:59pm on 01 April 2005. In the event KBR elects to purchase the
Software License, said License terms and conditions shall be as set forth
in Exhibit 6 of this Agreement. In the event KBR elects to end the project,
or fail to purchase the Software License, 1) KBR shall waive any and all
rights to the licenses technology and products, 2) KBR and MACHINETALKER
shall cease to have any right and/or obligation to each other and 3)
MACHINETALKER shall be free of all encumbrances and limitations on the
intellectual property rights as it applies to the licensed technology and
products.
Invoices shall be submitted to:
Xxxxxxx Xxxxx & Root Services, Inc.
X.X. Xxx 00000Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Procurement - Xx. Xxxxx X. Xxxxxxx
MACHINETALKER shall execute and submit one (1) copy of the "Affidavit for
Subcontractor" incorporated as Exhibit 2 with the final invoice.
5. MACHINETALKER as Independent Contractor.
As an independent contractor under this Agreement, and not an employee or agent
of KBR, MACHINETALKER is not authorized to and will not commit KBR to any
obligation, and MACHINETALKER will receive no vacation accrual, holiday pay,
paid sick leave, insurance, or any other benefits afforded employees of KBR. All
taxes, Social Security payments, and other such related charges relative to
MACHINETALKER's Services shall be solely MACHINETALKER's responsibility.
6. Performance of the Services.
6.1 MACHINETALKER's Services will be performed at MACHINETALKER's office
location, KBR Arlington, Virginia and/or other locations to be mutually
agreed-upon in writing between KBR and MACHINETALKER. KBR is interested in the
results obtained through the use of MACHINETALKER's Services, rather than the
manner in which MACHINETALKER's Services are performed. While MACHINETALKER is
expected to devote the amount of effort reasonably required to complete the
assignments given to MACHINETALKER within the financial and time constraints
attendant to each assignment, the number of hours worked during any given day
and the particular days that MACHINETALKER works will be solely at
MACHINETALKER's discretion except where interface with KBR or client
representatives is required. MACHINETALKER understands and agrees that, for any
Services performed on KBR's premises or that of a customer or supplier of KBR,
that it will comply with any and all rules and regulations pertaining to health,
safety, environmental, or security, specifically, KBR's policies regarding
substance testing for any persons performing work under contract to KBR on KBR
premises.
6.2 EXCEPT FOR EXISTING BUSINESS RELATIONSHIPS AS NOTED IN EXHIBIT 4
MACHINETALKER agrees not to accept any other representation appointment, not to
enter into a relationship with any person, firm or corporation with respect to
projects which may be competitive with or conflict with the interests of KBR.
KBR, however, acknowledges that MACHINETALKER provides MachineTalker(R)
products, consulting, and development services to other clients, and agrees that
nothing hereunder shall be deemed or construed to prevent MACHINETALKER from
carrying on such business or developing for itself or others materials that are
not competitive with those produced as a result of the Services provided
hereunder, irrespective of their similarity to the deliverables provided
hereunder.
6.3 License to Use.
In addition to the SMMP(R) license agreement executed by the parties
incorporated as Exhibit 6 to this Agreement and to the extent that any
MACHINETALKER Information, as defined below, is incorporated into the
Applications Software, MACHINETALKER will grant an exclusive, non-royalty
bearing, worldwide and perpetual license to use such MACHINETALKER Information
under this Agreement in the area of container and inventory security and
tracking. Nothing in this Section 6.3 shall be deemed to permit KBR to disclose,
provide access to, sublicense, disassemble, decompile, reverse engineer, modify,
create derivative works of, or transfer any MACHINETALKER Information to any
third party, except to a subsidiary or affiliate, with a need to know without
the prior, written consent of MACHINETALKER.
7. No Subcontracting.
It is understood that this Agreement is for Services to be rendered by
MACHINETALKER personally. In no event shall Services requested of MACHINETALKER
hereunder be rendered by any other person without KBR's prior written approval.
8. Confidentiality and Proprietary Information.
8.1 Confidentiality
MACHINETALKER agrees to keep confidential and not disclose to any third party
nor use except in connection with MACHINETALKER's Services for KBR all
information concerning KBR, including but not limited to the existence and
content of this Agreement, KBR's Services, the business affairs or technical
data or processes of KBR, or its customers, made available to MACHINETALKER by
KBR in the course of MACHINETALKER's Services to KBR, except to the extent KBR
authorizes disclosures in writing. All memoranda, notes, and documents made
available to MACHINETALKER by KBR will remain the property of KBR and shall be
returned to KBR upon completion of the Services or termination of the Agreement.
KBR agrees that in conjunction with the Project described in the Agreement KBR
may receive or be privy to information that is confidential and proprietary to
Consultant. Such Confidential Information can include, but is not limited to,
the business plans, business associations or proprietary technical information
of the Consultant. Except as developed for KBR during the Project, all
memoranda, notes, and documents made available to KBR by the Consultant will
remain the property of the Consultant and shall be returned to the Consultant
upon completion of the Services or termination of the Agreement.
If either MACHINETALKER or KBR receives from the other party written information
which is marked "Confidential" or "Proprietary", the receiving party agrees not
to use such information except in the performance of this Agreement, and to
treat such information in the same manner as it treats its own confidential
information for a period of Five (5) years from the date of disclosure. Without
limiting the foregoing, it is agreed that all communications between
MACHINETALKER and KBR relating to bidding, testing, or sales activities are to
be confidential. However, MACHINETALKER's and KBR's obligations above shall not
apply with respect to any Confidential Information which:
A.) (i) is already rightfully in the possession of the Party; (ii) is or
becomes publicly available through no wrongful act of either Party; (iii) is
rightfully received by the Party from a third party without an obligation of
confidentiality to the other Party; (iv) is disclosed to a third party by either
Party without restriction; or (v) is approved for release by written
authorization of the disclosing Party.
B.) Is or becomes generally available to the public other than by reason of
a breach by either of the PARTIES of its obligations under this Agreement; or
C.) Is compelled by court order to disclose, provided that disclosing Party
(i) provides to the other Party a reasonable period prior to disclosure written
notice of all circumstances pertaining to the proposed disclosure, and (ii)
cooperates reasonably with any attempt by other Party to obtain or file
pleadings with respect to any protective judicial order limiting or prohibiting
the disclosure of such Confidential Information except to the extent necessary
for the purposes of the proceeding in which the disclosure order arose; or Other
Party agrees that the confidential information can be disclosed to a third party
under a non-disclosure agreement with that party, for the sole purpose of
preparing proposals, marketing, sales, and other activities reasonably related
to disclosing Party's overall business strategy in the area of applications,
systems, or solutions that track inventory, containers and other similar
packages, where such final purpose is the sale of, and implementation of, the
Licensed Products.
8.2 Ownership of Proprietary Information and Work Product
MACHINETALKER's original works in developing the Applications Software,
including but not limited to MACHINETALKER's work products submitted to KBR, are
agreed to be works made for hire, and all right, title and interest will be
owned by KBR. MACHINETALKER will promptly disclose to KBR any invention or
original work conceived or prepared by MACHINETALKER in the course of
MACHINETALKER's Services hereunder in developing such Applications Software, or
based on information made available to MACHINETALKER by KBR in the course of
MACHINETALKER's Services. Hereunder, all right, title, and interest in such
inventions and original works, including any derivative works, or improvements,
modifications, or enhancements thereof ("Works") are owned by KBR. MACHINETALKER
will assist KBR with all reasonably necessary efforts to execute all papers
necessary to enable KBR or its nominee to apply for Letters Patent based on such
inventions and copyrights on such Works in the United States and any foreign
countries which KBR may select, and to assign to KBR or its nominee the entire
right, title, and interest in and to any such Works. Such services by
MACHINETALKER are recognized to be outside of the scope of this agreement and
MACHINETALKER will be compensated for such efforts at MACHINETALKER's published
hourly fee contained in Attachment B.
MACHINETALKER's and KBR's obligations in this Article 8 shall survive any
termination or expiration of this Agreement for a period of 5 years from the
termination of the Agreement.
9. MACHINETALKER's Reports.
MACHINETALKER will furnish monthly reports reflecting the times worked and a
summary of the efforts and the results of MACHINETALKER's Services corresponding
to those times. Such reports shall be submitted to the Technical Representative
upon request.
10. Compliance with Laws.
MACHINETALKER agrees to conduct its activities and perform all Services in
accordance with all applicable laws, regulations, codes or ordinances, including
but not limited to possessing all valid and current professional licenses or
certifications required to perform the Services in the applicable
jurisdiction(s). In the provision of Services pursuant to this Agreement,
MACHINETALKER shall comply with KBR/Halliburton Code of Business Conduct
incorporated into this Agreement as Exhibit 1. In addition, MACHINETALKER shall
comply with all requirements and standards of conduct applicable to it under the
Personnel Employment Services Act, Tex. Civ. Stat. Xxx. art. 5221a-7.
11. Future Purchases of Licensed Product.
Exhibit 7, Purchase Order Terms and Conditions will be made a part of any future
purchases of Licensed Products.
12. Dispute Resolution.
This Agreement and any disputes between the parties shall be governed by the
laws of the Commonwealth of Virginia, excluding any provisions thereof dealing
with conflict of laws which might make the laws of other jurisdictions
applicable. The parties agree that all disputes and claims will be amicably
resolved through good faith direct negotiation between the parties as an
exclusive substitute for litigation. Should any dispute or claim not be resolved
within a reasonable period, the parties agree, as a sole and exclusive remedy,
to submit the dispute or claim to mediation or binding arbitration, to be
administered by the American Arbitration Association in Arlington, Virginia, in
accordance with its then-current rules and procedures.
13. Indemnification for Services
(A) MACHINETALKER AGREES TO INDEMNIFY AND HOLD KBR HARMLESS FROM ANY LOSS,
ACTION, OR CLAIM ARISING OUT OF ANY SERVICES RENDERED, PROVIDED THAT KBR GIVES
MACHINETALKER NOTICE OF ANY SUCH LOSS OR CLAIM WITHIN 30 DAYS OF THE DATE THAT
KBR IS MADE AWARE OF THE CLAIM. KBR AGREES TO USE BEST EFFORTS TO ASSIST
MACHINETALKER IN ANY SUCH DEFENSE TO THE EXTENT REASONABLE AND PRACTICABLE.
(B) KBR AGREES TO INDEMNIFY AND HOLD MACHINETALKER HARMLESS FROM ANY LOSS OR
CLAIM RELATED TO THE NEGLIGENCE OF KBR, ITS AGENTS OR EMPLOYEES DURING THE
TESTING PERIOD DESCRIBE IN ATTACHMENT A, OR ARISING OUT OF ANY REPRESENTATION OR
WARRANTY MADE BY KBR, ITS AGENTS, OR EMPLOYEES WHERE SUCH REPRESENTATION EXCEEDS
MACHINETALKER'S LIMITED WARRANTY IF SUCH LOSS OR CLAIM IS EXCLUSIVE OF
MACHINETALKER NEGLIGENCE, PROVIDED THAT MACHINETALKER GIVES KBR NOTICE OF ANY
SUCH LOSS OR CLAIM WITHIN 30 DAYS OF THE DATE THAT MACHINETALKER IS MADE AWARE
OF THE CLAIM. MACHINETALKER AGREES TO USE BEST EFFORTS TO ASSIST KBR IN ANY SUCH
DEFENSE TO THE EXTENT REASONABLE AND PRACTICABLE.
In the event that either Party is entitled to claim damages from the other Party
subsequent to an action arising under article 17, above, such liability shall be
limited to:
1) Damages for bodily injury (including death) and damage to real
property and tangible personal property; and
2) The amount of any other actual direct damages, up to the charges (if
recurring, 12 month's charges apply) for the Product that is the
subject of the claim.
In no event shall either party be liable to the other for:
A) loss of, or damage to, records or data; or
B) special, incidental, or indirect damages or any consequential economic
damages; or
C) lost profits, business, revenue, or anticipated savings.
All indemnities are subject to the limitations and exclusions elsewhere in this
Agreement.
NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, KBR'S MAXIMUM
LIABILITY TO MACHINETALKER SHALL NOT EXCEED THE AMOUNT OF $600,000 UNDER ANY
CIRCUMSTANCES, INCLUSIVE OF ATTORNEYS' FEES, COSTS, AND EXPENSES, FOR ANY CLAIM
ARISING FROM OR RELATED TO THE AGREEMENT OR TO THE SUBJECT MATTER OF THE
AGREEMENT. SUCH CLAIMS MIGHT INCLUDE BUT ARE NOT LIMITED TO CLAIMS FOR BREACH OF
CONTRACT.
13.3 In the event, travel outside of the continental United States is authorized
under this Agreement, MACHINETALKER acknowledges, understands and accepts that
conditions in the world including locations throughout Middle East, Kuwait
and/or Iraq can be considered dangerous. Although reasonable efforts are made to
ensure the safety of all personnel, KBR makes no representations or warranties
regarding the safety of individuals and accepts no liability or responsibility
for the safety of independent contractors, subcontractors, MACHINETALKER's,
vendors or suppliers including, but not limited to, health and welfare costs
that may be incurred in the event of injury.
14. CREATION OF SECURITY INTEREST.
MACHINETALKER hereby grants to KBR a security interest in any products or items
purchased for the purpose of creating, repairing, or modifying Licensed Product
to secure the performance of MACHINETALKER's obligations as stated in the
Agreement. MACHINETALKER agrees to maintain a Job Cost System that at all time
will uniquely identify the said products or items to which KBR holds a security
interest. MACHINETALKER agrees to segregate the said products or items at all
times so that they are readily identifiable and separate from any other similar
materials not belonging to KBR and not subject to KBR's security interest.
MACHINETALKER agrees to provide free and open access to its facility during
normal business hours for inspection by KBR, and to MACHINETALKER's Job Cost
System for the purpose of allowing KBR to audit the accuracy of the system and
compliance with this Article. MACHINETALKER further agrees to execute any and
all UCC-1 forms and such other forms that KBR may request in order to perfect
KBR's security interest or to accomplish the purposes of this Article.
15. AUDIT RIGHTS.
For the purpose of evaluating MACHINETALKER's incurred costs with respect to
MACHINETALKER's invoices for cost reimbursement, progress payments,
MACHINETALKER's claim(s) arising out of a termination or partial termination of
this contract, and MACHINETALKER's proposals for incentive price revisions or
elements of MACHINETALKER's change proposals which involve unique claims (e.g.,
obsolescence costs) which must be verified by audit, MACHINETALKER agrees that
KBR or any of its duly authorized representatives shall have access to and the
right to audit any directly pertinent books, documents, papers, and records
which support direct and indirect costs.
16. EXAMINATION OF PROPOSED COSTS.
For the purpose of evaluating MACHINETALKER's proposed costs with respect to
proposals, change proposals, and proposals for follow-on procurement,
MACHINETALKER agrees that KBR or any of its duly authorized representatives may
subject such proposals or reports and related financial data to analysis type
examination at MACHINETALKER's facility. For such purposes, MACHINETALKER shall
make available all data supporting direct and indirect costs.
17. PERFORMANCE OF WORK ON GOVERNMENT PREMISES
Any work under this contract which is performed by MACHINETALKER or any of its
subcontractors on premises under Government control is subject to all
provisions of this contract governing such work and to the following: A.) All
MACHINETALKER personnel shall at all times conspicuously display a distinctive
badge provided by MACHINETALKER, identifying such personnel as employees of
MACHINETALKER and shall observe and otherwise be subject to such security
regulations as are in effect for the particular premises involved. B.) Except as
may be otherwise specified in this contract, MACHINETALKER shall furnish all
supplies, material and equipment required for the work to be performed. C.)
MACHINETALKER shall provide direct supervision of its own employees but shall
not supervise or accept supervision from any Government personnel. D.)
MACHINETALKER shall designate to KBR in writing an on-the-premises
representative to serve as point of contact for MACHINETALKER with the
Contracting Officer or his duly authorized representative. E.) Performance of
work on Government premises shall be confined to the area(s) specified by the
Contracting Officer or his duly authorized representative.
18. PROCUREMENT INTEGRITY
As an express condition of the award of this subcontract, (or subcontract
modification) MACHINETALKER represents and warrants to KBR that in relation to
the award of the prime contract (or prime contract modification) under which
this subcontract is issued, MACHINETALKER has complied, and will continue to
comply, in all respects with the Procurement Integrity provisions of the Office
of Federal Procurement Policy Act Amendments of 1988 (the Act), 41 U.S.C. 423,
and its implementing Federal Acquisition Regulations (see FAR 3.104), as
amended. MACHINETALKER further agrees that it shall comply with the Act and
implementing regulations, as amended, in relation to any and all modifications
or extensions of the prime contract under which this subcontract is issued. For
violations of the Act by the MACH INETALKER or MACHINETALKER's subcontractors,
as determined by notice from the U.S. Government.
19. NOTICE
Any correspondence of notice given by either Party to the other hereunder shall
be served, if delivered in person to the office of the authorized representative
and designated in writing to act for the respective party, or if deposited in
the mail, properly stamped with the required postage and addressed to the office
of the authorized representative. Either Party hereto shall have the right to
change any representative or address it may have given to the other Party by
giving such other party due notice in writing of such change. Notices shall be
delivered as addressed as follows:
FOR KBR: Xxxxx Xxxxxxx Telephone: 000-000-0000
Xxxxxxx Xxxxx & Root Services, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx XX 00000
FOR MACHINETALKER Xxxxxx X. Xxxxx Telephone: 000-000-0000
MachineTalker, Inc.
000 Xx Xx Xxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000 Notices of all
changes to the Agreement, except as
otherwise stated herein, shall be delivered
thirty (30) days prior to the effective date
of the change.
20. Purchase of the Software License.
MACHINETALKER offers the purchase of the Software License under the condition
that acceptance by KBR must be in the form of a Lump Sum payment in the amount
of $200,000 and received by MACHINETALKER prior to 11:59pm on 01 April 2005. In
the event KBR elects to purchase the Software License, said License terms and
conditions shall be as set forth in Exhibit 6 of this Agreement. In the event
KBR elects to end the project, or fails to purchase the Software License, such
action or inaction on behalf of KBR shall result in the following: 1) KBR shall
waive any and all rights to the licenses technology and products, 2) KBR and
MACHINETALKER shall cease to have any right and/or obligation to each other and
3) MACHINETALKER shall be free of all encumbrances and limitations on the
intellectual property rights as it applies to the licensed technology and
products.
21. Agreement Documents
Attachment A -Relative Activity Periods vs. Task
Attachment B -MACHINETALKER Hourly Rates
Exhibit 1 - Halliburton Code of Business Conduct
Exhibit 2 - Affidavit for MACHINETALKER (Final Release)
Exhibit 3 - Small Business Program Representations
Exhibit 4 - Organizational Conflict of Interest
Exhibit 5 - Secrecy Agreement (Mutual Non-Disclosure Agreement)
Exhibit 6 - Software License (9 Pages)
Exhibit 7 - Purchase Order Terms and Conditions (11 Pages)
Exhibit 8 - Notice of KBR Invoice Procedures
22. Entire Agreement.
The foregoing constitutes the entire Agreement between KBR and MACHINETALKER and
supercedes any representations or Agreements heretofore made with respect to the
same subject matter. This Agreement may be renewed, modified, or amended only by
a document in writing signed by both parties hereto.
Please signify Agreement to the foregoing by dating and signing both originals
of this Agreement and returning one original to KBR's attention.
"MACHINETALKER"
MACHINETALKER, INC., a Delaware corporation
Name & title: Date:
Xxxxxx X. Xxxxx, President
Address and Facsimile Number for Notice:
MachineTalker, Inc.
000 Xx Xx Xxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
"KBR"
XXXXXXX, XXXXX & ROOT SERVICES, INC.
Name & title: Date:
Address and Facsimile Number for Notice:
Xxxxxxx, Xxxxx & Root Services, Inc.
Attn: Procurement
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (____)
Consulting Agreement
MachineTalker, Inc.
ATTACHMENT A
RELATIVE ACTIVITY PERIODS VS. TASK
---------------------------------------------------------------------------------------------------------------------------------
Relative Activity Periods vs. Task 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Modify MiniTalker(R)Design WEEKS
----------------------------------------------------------------------------------
===============================================----------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Payment Milestones 1 2 3 4 5
---------------------------------------------------------------------------------------------------------------------------------
Deliverables
---------------------------------------------------------------------------------------------------------------------------------
Project Management Activity X X X X X X X X X X X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
All Hands Review and Meetings X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Application Evaluation X X X X
---------------------------------------------------------------------------------------------------------------------------------
Refine Product Specification X X X X
---------------------------------------------------------------------------------------------------------------------------------
Container Tests - Standard MiniTalker X X X
---------------------------------------------------------------------------------------------------------------------------------
Experimentation Alternative Radios Activity X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Determine Relative Sensors/Detectors X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Sensor Experimentation Activity X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Decision Point To End Project or Proceed X
---------------------------------------------------------------------------------------------------------------------------------
Hands On Testing By KBR Team Activity X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Finalize Production Specification X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Release To Production (250 Units) X
---------------------------------------------------------------------------------------------------------------------------------
Fabricate & Test Production Units X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Deliver Production Units X X X X
---------------------------------------------------------------------------------------------------------------------------------
Release User's Guide/Assy Docs X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Hardware Variations Activity X X X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Design - Specific Version X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Implement New Container Package X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Pre-Order Long-Term Parts X
---------------------------------------------------------------------------------------------------------------------------------
Check Designs vs. Spec Activity X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Fabricate & Test Container Package X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Design and Package Sensors X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Refine Product Specification X X X
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Software Activity X X X X X X X X X X X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
KBR Freight Manifest Specification X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Design & Test Application I/O SW Activity X X X X X X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Design & Test Sensor I/O SW Activity X X X X X X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Test Project Software Using Standard X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Test SW With KBR Tracking Programs X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Preliminary KBR Project Schedule
Note: Requires access to and direct involvement of requisite KBR
Systems personnel throughout the Project.
---------------------------------------------------------------------------------------------------------------------------------
Note: See KBR Project Deliverables Table (Page 2)
---------------------------------------------------------------------------------------------------------------------------------
Applied Time Senior Scientist x1 X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Applied Time Systems Engineer x1 X X X X X X X X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Applied Time Software Architect x1 X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
Applied Time Technical Support x2 X X X X X X X X X X X X X X X X X X X X X X X X X X
---------------------------------------------------------------------------------------------------------------------------------
ATTACHMENT B
MachineTalker, Inc. Hourly Rates:
--------------------------------------------------------------------------------
Labor Category Standard Rate/Hour Discounted Rate/Hour
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Applied Time Senior Scientist $140.00 $84.65
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Applied Time Systems Engineer $120.00 $72.56
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Applied Time Software Architect $100.00 $60.46
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Applied Time Technical Support $70.00 $42.32
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Applied Time Technical Support $70.00 $42.32
--------------------------------------------------------------------------------
Consulting Agreement
MachineTalker, Inc.
EXHIBIT 1
Code of Business Conduct
Halliburton Company
Code of
Business
Conduct
TABLE OF CONTENTS
Letter To All Employees ......................................1
General Policy Regarding Laws and Business Conduct ...........2
Ethical Business Practices ...................................3
Sensitive Transactions ...................................3
Commercial Bribery .......................................4
Accounting Controls, Procedures and Records ..............5
Use and Disclosure of Inside Information .................6
Confidential or Proprietary information ..................6
Conflicts of Interest ....................................7
Fraud and Similar Irregularities .........................8
Export Matters and International
Business Relationships ......................................9
Export Administration and International
Economic Sanctions .......................................9
Boycotts .................................................9
International Business Relationships .....................10
Antitrust and Competition ...................................11
Employment and the Workplace ................................12
Equal Employment Opportunity .............................12
Harassment ...............................................12
Health, Safety and Environment ..............................13
Political Activities .......................................14
United States Federal Government Contracting ...............15
Confidential Reporting of Alleged Code Violations ..........1E
Useful Telephone Numbers ...................................1E
Training ...................................................1E
Distribution ...............................................1E
General Policy Regarding Laws and Business Conduct
The Code of Business Conduct of Halliburton Company (the "Company")
consists of the policies relating to the ethical and legal standards of conduct
to be followed by Directors, employees and agents of the Company in the conduct
of its business. The Code of Business Conduct applies to all Company Directors,
employees and agents and all Company activities throughout the world, except
where specifically indicated.
It is the policy of the Company to comply with applicable law. Some
Company policies are based on the requirements of applicable law and others are
just good ethics and business sense. The Company is organized under United
States law and its securities are publicly traded. This means that the Company
is primarily governed by United States law, and that United States law applies
to some of the Company's business outside the United States.
The Company does business in many countries around the world and, as a
good business citizen, we must observe the applicable laws of the countries in
which the Company does business. Sometimes there is a conflict between the
United States law and the law of one of the other countries in which the Company
operates. In these situations the Company will resolve the conflict with the
advice and counsel of the Law Department.
It is the personal responsibility of each Company Director, employee
and agent to observe the standards of conduct and other requirements of the Code
of Business Conduct whether or not these standards and requirements are also
imposed by law. Any Director, employee or agent who does not comply with these
standards and requirements is acting outside the scope of his or her employment,
responsibilities or agency.
The underlying formal policies themselves have more detail than is
contained in this booklet. It is the responsibility of each Director, employee
or agent to familiarize himself or herself with the details of the policies of
the Company that apply to his or her assigned duties. If an employee wishes to
refer to the complete policies summarized in this booklet, they are available in
electronic and written form. If a Director, employee or agent has any questions
about the policies summarized in this booklet, he or she should contact the Law
Department.
Reference: Corporate Policy 3-0001
Ethical Business Practices
Company policy requires Directors, employees and agents to observe high
standards of business and personal ethics in the conduct of their duties and
responsibilities. Directors and employees must practice fair dealing, honesty
and integrity in every aspect of dealing with other Company employees, the
public, the business community, shareholders, customers, suppliers, competitors
and government authorities. When acting on behalf of the Company, Directors and
employees shall not take unfair advantage through manipulation, concealment,
abuse of privileged information, misrepresentation of material facts, or other
unfair-dealing practices.
Company policy prohibits unlawful discrimination against employees,
shareholders, Directors, officers, customers or suppliers on account of race,
color, age, sex, religion or national origin. All persons shall be treated with
dignity and respect and they shall not be unreasonably interfered with in the
conduct of their duties and responsibilities.
No Director or employee should be misguided by any sense of loyalty to
the Company or a desire for profitability that might cause him or her to disobey
any applicable law or Company policy. Violation of Company policy will
constitute grounds for disciplinary action, including, when appropriate,
termination of employment.
Reference: Corporate Policy 3-0001
Sensitive Transactions
Company policy prohibits its Directors, employees and agents from
entering into sensitive transactions. If such a transaction occurs, the Company
and its officers, Directors and employees directly involved may be subject to
fines, imprisonment and civil litigation.
The term "sensitive transactions" is commonly used to describe a broad
range of business dealings generally considered to be either illegal, unethical,
immoral or to reflect adversely on the integrity of the Company. These
transactions are usually in the nature of kickbacks, gifts of significant value,
bribes or payoffs made to favorably influence some decision affecting a
company's business or for the personal gain of an individual. These transactions
may result in violation of various laws, including the United States Foreign
Corrupt Practices Act (the "FCPA") and similar laws of other countries.
Company policy and the FCPA prohibits the Company and its officers,
Directors, employees and agents from corruptly offering or giving anything of
value to:
o An official, including any person acting in an official
capacity for a government outside the United States or an
official of a public international organization;
o A political party official or political party outside the
United States; or
o A candidate for political office outside the United States;
directly or indirectly, for the purpose of influencing any act or decision of
these officials in their official capacity or in violation of their lawful
duties or to secure any improper advantage in order to help the Company obtain
or retain business or direct business to any person.
Employees of government owned companies such as national oil companies
are considered to be government officials.
Company policy prohibits any Director, employee or agent from making
any payment or engaging in any transaction that is prohibited by the FCPA.
This policy does not prohibit properly made and recorded facilitating
payments. Sometimes the Company may be required to make facilitating or
expediting payments to a low level government official or employee in some
countries other than the United States to expedite or secure the performance of
routine governmental action by the government official or employee. Such
facilitating payments may not be illegal under the FCPA and similar laws of
other countries. Nevertheless, it may be difficult to distinguish a legal
facilitating payment from an illegal bribe, kickback or payoff. Accordingly,
facilitating payments must be strictly controlled and every effort must be made
to eliminate or minimize such payments. Facilitating payments, if required, will
be made only in accordance with the advance guidance of the Law Department. All
facilitating payments must be recorded accurately as facilitating payments in
the accounting records of the Company.
Reference: Corporate Policy 3-0005
Commercial Bribery
Company policy prohibits commercial bribes, kickbacks and other similar
payoffs and benefits paid to any suppliers or customers.
Directors, employees and agents are also prohibited from receiving,
directly or indirectly, anything of a significant value (other than salary,
wages or other ordinary compensation from the Company) in connection with a
transaction entered into by the Company.
Bribery of suppliers or customers includes any payment for the benefit
of any representative of the supplier or customer. It includes:
o Gifts of other than nominal value;
o Cash payments by Directors, employees or third per-sons, such
as agents or consultants, who are reimbursed by the Company;
o The uncompensated use of Company services, facilities or
property, except as may be authorized by the Company; and
o Loans, loan guarantees or other extensions of credit.
This policy does not prohibit expenditures of reasonable amounts for
meals and entertainment of suppliers and customers which are an ordinary and
customary business expense, if they are otherwise lawful. Expenditures of this
type should be included on expense reports and approved under standard Company
procedures.
Reference: Corporate Policy 3-0006
Accounting Controls, Procedures and Records
Applicable laws and Company policy require the Company to keep books
and records that accurately and fairly reflect its transactions and the
dispositions of its assets. In addition, the Company must maintain a system of
internal accounting controls that will ensure the reliability and adequacy of
its books and records. Failure to meet such requirements may constitute a
violation of law.
To satisfy these requirements, the Company has adopted policies to
ensure that only proper transactions are entered into by the Company, that such
transactions have proper management approval, that such transactions are
properly accounted for in the books and records of the Company and that the
reports and financial statements of the Company are timely prepared,
understandable and fully, fairly and accurately reflect such transactions. All
Directors and employees having any responsibility for such functions must be
familiar with the Company's policies, accounting controls, procedures and
records and must comply with their requirements.
Reference: Corporate Policy 3-0004
Use and Disclosure of Inside information
The laws of the United States and many other countries regulate the use
and disclosure of inside information concerning the Company. Information is
"inside information" if it has not been publicly disclosed. The Company has
policies (based in part on such laws) concerning the use and disclosure of
inside information.
Company policy prohibits disclosure of material inside information to
anyone other than persons within the Company whose positions require them to
know such information.
Company policy also prohibits trading in the securities of the Company
by any employee while in the possession of material inside information. If an
employee or agent has inside information he or she must wait until the end of
business on the second business day after the information has been properly
disclosed to the public before trading in the securities of the Company. Company
policy also prohibits providing inside information to other persons or
recommending that they buy or sell the Company's securities on the basis of
inside information. More restrictive rules apply to certain key employees,
officers and Directors.
A Director, employee or agent shall not trade in the securities of
another company if, in the course of his or her employment or position with the
Company, he or she learns confidential information about such other company that
is likely to affect the price of such securities.
Company Directors, employees and agents are discouraged from short term
speculation in the securities of the Company.
It is Company policy that no preferential treatment be given with
respect to disclosure of inside information. The Company has adopted procedures
to avoid improper preferential disclosures.
Reference: Corporate Policy 3-0008
Confidential or Proprietary Information
Company Directors, employees and agents often learn confidential or
proprietary information about the Company or its customers. Company policy
prohibits Directors, employees and agents from disclosing or using confidential
or proprietary information outside the Company or for personal gain, either
during or after employment, without proper written Company authorization to do
so. An unauthorized disclosure could be harmful to the Company or a customer or
helpful to a competitor.
The Company also works with proprietary data of customers, suppliers
and joint venture partners. This is an important trust and must be discharged
with the greatest care for the Company to merit the continued confidence of its
customers, suppliers and joint venture partners. No Director, employee or agent
shall disclose or use confidential or proprietary information outside the
Company without Company authorization, nor shall any Director, employee or agent
disclose such information to other employees except on a need-to-know basis.
Reference: Corporate Policy 3-0009
Conflicts of Interest
Company policy prohibits conflicts between the interests of its
Directors or employees and the Company. A complete definition of what
constitutes a conflict of interest is difficult. There are some situations,
however, that will always be considered a prohibited conflict of interest. These
situations occur when a Director or employee or any person having a close
personal relationship with the Director or employee:
o Obtains a significant financial or other beneficial interest in one of the
Company's suppliers, customers or competitors without first notifying the
Company and obtaining written approval from the Chief. Executive Officer
or his or her designee;
o Engages in a significant personal business transaction involving the
Company for profit or gain, unless such transaction has first been
approved in writing by the Chief Executive Officer or his or her designee;
o Accepts money, gifts of other than nominal value, excessive hospitality,
loans, guarantees of obligations or other special treatment from any
supplier, customer or competitor of the Company (loans from lending
institutions at prevailing interest rates are excluded);
o Participates in any sale, loan or gift of Company property without
obtaining written approval from the Chief Executive Officer or his or her
designee;
o Learns of a business opportunity through association with the Company and
discloses it to a third party or invests in or takes the opportunity
personally without first offering it to the Company;
o Uses corporate property, information, or position for personal gain; or
o Competes with the Company.
A conflict of interest may arise because of outside directorships,
personal use of Company property or obtaining Company services for personal
benefit.
"Person having a close personal relationship with the Director or
employee" refers to the Director's or employee's spouse, parents, children,
siblings, mothers and fathers-in-law, sons and daughters-in-law, brothers and
sisters-in-law, any person living in the same house with the Director or
employee or any business associate of the Director or employee.
Periodically the Company requires certain employees to certify to the
Company that they have complied with all requirements of the Code of Business
Conduct. Disclosure of a particular situation that may be a conflict of interest
does not mean that the Company will consider it to be substantial enough to be
prohibited. Each situation will be considered on an individual basis.
Reference: Corporate Policy 3-0003
Fraud and Similar Irregularities
Company policy prohibits fraud and establishes procedures to be
followed concerning the recognition, reporting and investigation of suspected
fraud. Fraud includes, but is not limited to:
o Dishonest or fraudulent act;
o Embezzlement;
o Forgery or alteration of negotiable instruments such as
Company checks and drafts;
o Misappropriation of Company, employee, customer, partner or
supplier assets;
o Conversion to personal use of cash, securities, supplies or
any other Company asset;
o Unauthorized handling or reporting of Company transactions;
and
o Falsification of Company records or financial statements for
personal or other reasons.
Directors and employees are obligated to protect the Company's assets
and ensure their efficient use. Theft, carelessness and waste of Company assets
by Directors and employees are prohibited since such actions and conduct have a
direct and negative impact on the Company's profitability. All Company assets
shall only be used for the legitimate business purposes of the Company.
Any Director, employee or agent who suspects that any fraudulent
activity may have occurred is required to report such concern to the Law
Department, Audit Services, Security Department, or the Company's Chief
Financial Officer. All fraud investigations will be conducted under the
direction of the Law Department.
Reference: Corporate Policy 3-0015
Export Matters and International
Business Relationships
Export Administration and International Economic Sanctions
Although the Company operates in many countries throughout the world,
as a United States company it must comply with the export administration and
international economic sanctions laws of the United States. Company policy
requires that the Company conduct all of its business and export its services,
products and technology in compliance with such laws. There are no exceptions to
this policy.
The Company has established a comprehensive internal monitoring program
to ensure compliance with such laws. The requirements of these laws are complex
and sometimes difficult to understand. Any questions concerning the requirements
of this policy or the applicable law should be addressed to the export control
manager or the Law Department. All Company Directors, employees and agents must
observe all requirements of the internal controls program and act in compliance
with these laws.
Reference: Corporate Policy 3-0010
Boycotts
Applicable laws and Company policy prohibits cooperation with certain
boycotts imposed by the laws of other countries. Applicable United States laws
also require that the Company not provide certain information concerning the
identity and nationality of its employees, Directors, shareholders,
subcontractors and suppliers or information about where the Company does
business when such information is requested to support a prohibited boycott.The
Company is also required to report requests it receives to support such boycotts
even though it does not comply with such requests.
Sometimes requests to support a prohibited boycott are hard to detect.
All employees and agents who are likely to come in contact with such requests
must be fully aware of the details of this policy.
Reference: Corporate Policy 3-0011
International Business Relationships
The Company often enters into business relationships with other persons
and companies outside the United States. These "International Business
Relationships" take the form of agency agreements, joint ventures and other
forms of business combinations. Company policy governs the manner in which it
will enter into and manage these business relationships.
The term "International Business Relationships" includes the following:
o Employment of an agent, consultant, sponsor or any other party to assist
the Company in obtaining work or projects, personnel visas, import
licenses, facilities or other matters necessary for operation within a
country or region;
o Entering into a joint venture, consortium or shareholder agreement, or any
other arrangement where another party obtains an equity interest in the
business of an entity in which the Company also owns an interest or a
share of the profits from any work performed by the Company;
o Entering into a distribution, marketing, sales representation or licensing
agreement where another party distributes, markets, sells or licenses
others or obtains a license relating to the services, products or
technology of the Company; or
o Entering into a contract or subcontract where another party will perform
the majority of the work to be performed under the Company's contract.
"International Business Relationships" do not include subcontracts or
purchase orders for goods or routine services in the regular course of business.
While International Business Relationships are useful in the conduct of
the Company's business, they must be adequately subject to the Company's systems
of control to protect the Company's assets against unauthorized use. Also, the
Company may be held accountable for actions taken by agents and others on its
behalf. Thus, Company policy requires that selection of other parties with whom
the Company will join in International Business Relationships must be subject to
appropriate management control and investigation.
All proposed agreements establishing or
amending such relationships must be
carefully reviewed by legal, financial and
management personnel prior to signing the
agreement.
Further, these agreements must require that the other parties agree to
comply with the Company's Code of Business Conduct for International Business
Relationships. This separate code of conduct applies to International Business
Relationships. It includes many of the same requirements as the Company's Code
of Business Conduct. Any employee who has responsibilities with respect to
International Business Relationships must be familiar with the more detailed
applicable Company policies.
Reference: Corporate Policy 3-0007
Antitrust and Competition
The antitrust laws of the United States and other countries prohibit
agreements or actions that might eliminate or discourage competition, bring
about a monopoly, abuse a dominant market position, artificially maintain prices
or otherwise illegally hamper or distort commerce.
In addition to criminal fines and jail terms, United States antitrust
violations often allow a private party to recover three times actual money
damages. Antitrust lawsuits have frequently resulted in judgments against
companies amounting to tens of millions and on occasions hundreds of millions of
dollars.
The Company does not tolerate any business activity that violates
antitrust laws that apply to the Company's business. Company policy requires
that no Director, employee or agent of the Company shall enter into any
understanding, agreement, plan or scheme, express or implied, formal or
informal, with any competitor in regard to prices, terms or conditions of sale
or service, production, distribution, territories or customers; nor exchange or
discuss with a competitor prices, terms or conditions of sale or service, or any
other competitive information; nor engage in any other conduct which violates
any of the antitrust laws. However, subcontracting arrangements or joint
proposals with competitors which are not in violation of applicable antitrust
laws and which have been approved by the Law Department are not prohibited. Any
discussion with competitors in connection with a project in which the competitor
is an alliance partner, joint venturer, or subcontractor must be precleared and
coordinated with the Law Department.
Antitrust laws are complex and sometimes difficult to understand. Any
Director, employee or agent of the Company who has responsibility for business
conduct that might be subject to antitrust laws must be guided by the advice of
the Law Department. Any questions concerning
antitrust implications must be referred to the Law Department before taking any
action. There are no exceptions to this policy and no one is authorized to
approve any action in violation of this policy.
Reference: Corporate Policy 3-0013
Employment and the Workplace
Equal Employment Opportunity
Company policy prohibits all unlawful discrimination against any
employee or applicant for employment. The Company is committed to providing
equal opportunity to all qualified individuals in its hiring and promotion
policies. The Company will endeavor to create a workforce that is a reflection
of the diverse population of the communities in which it operates.
With respect to operations governed by United States law, this policy
relates to all phases of employment, including recruitment, hiring, placement,
promotion, transfer, compensation, benefits, training, educational, social and
recreational programs and the use of Company facilities. It covers all other
personnel actions in all job categories and at all levels, including employment
of qualified disabled individuals, disabled veterans and veterans of the Vietnam
era. It is intended to provide employees with a working environment free of
discrimination, harassment, intimidation or coercion relating directly or
indirectly to race, color, religion, sex, age, disability or national origin.
All Directors, members of management and other employees shall actively
support this policy.
Reference: Corporate Policy 3-0002
Harassment
The Company believes that all employees should be treated with dignity
and respect. It is the policy of the Company to provide a work environment which
is free from harassment.
As used in this policy, harassment includes sexual, racial, ethnic, and
other forms of harassment, including harassment based upon disability. Some
examples, depending on the facts and circumstances, include:
o Verbal or Written Harassment - unwelcome or derogatory comments
regarding a person's race, color, sex, religion, ancestry, ethnic
heritage, mental or physical disability, age or appearance; threats of
physical harm; or the distribution of material having such effects,
including by electronic mail or display in any Company work area.
o Physical Harassment - hitting, pushing or other aggressive physical
contact or threats to take such action, or inappropriate gestures.
o Sexual Harassment - unwelcome sexual conduct, whether verbal or
physical, including sexual advances, demands for sexual favors, or
other verbal or physical conduct of a sexual nature, whether or not it
was designed or intended to promote an intimate relationship.
It is not considered harassment for supervisors and other members of
management to enforce job performance and standards of conduct in a fair and
consistent manner.
Any employee who believes she or he is being harassed should consider
telling the offending party that she or he objects to that conduct. This often
solves the problem. However, if an employee is not comfortable confronting the
offending party (or if the offending party's unwelcome conduct continues), the
employee should advise his or her immediate supervisor of the offending conduct.
If the employee is more comfortable discussing the issue with someone other than
his or her immediate supervisor, or if the immediate supervisor has not taken
what the employee regards as appropriate action to solve the problem, the
employee should contact a Human Resources or Law Department representative.
Reports of harassment will be investigated promptly and discreetly.
Any employee who reports any act of harassment in good faith, including
sexual harassment, will not be retaliated against because of such report.
Reference: Corporate Policy 3-0016
Health, Safety and Environment
Protection of health, safety and the prevention of pollution to the
environment are primary goals of the Company. The Company will strive to develop
and provide products and services that have no undue environmental impact and
are safe in their intended use, efficient in their consumption of energy and
natural resources and can be recycled, reused or disposed of safely.
All employees must conduct their duties and responsibilities in
compliance with applicable law and industry standards relating to health and
safety in the workplace and prevention of pollution to the environment.
The Chief Health, Safety and Environment Officer of the Company shall
oversee the administration of this policy. Implementation shall be subject to
the oversight of the Health, Safety and Environment Committee of the Company's
Board of Directors.
Reference: Corporate Policy 3-0014
Political Activities
The Company believes strongly in the democratic process. Its Directors
and employees should take an active interest in fostering principles of good
government in the countries and communities in which they live. Directors and
employees may spend their own time and funds supporting political candidates and
issues, but they will not be reimbursed by the Company. Directors and employees
should ensure that their personal political contributions and activities are in
compliance with applicable law.
Further, some political conduct which is permitted and encouraged for
individuals is unlawful for corporations.
Company policy requires Directors, employees and agents who represent
the Company in political and governmental matters to comply with all laws
regulating corporate participation in public affairs. To assure that these
requirements are met and as guidance to them, the following policies have been
adopted:
No Director, employee or agent shall apply any pressure on any other
employee that infringes that individual's right to decide whether, to
whom and in what amount a personal political contribution is to be
made;
No contributions of Company funds, property or services shall be made
in support of political candidates for federal office in the United
States or in certain states or other countries where such contributions
are prohibited. Indirect expenditures on behalf of a candidate, such as
travel on a Company aircraft, may be considered as contributions in
this regard;
No political contribution of Company funds, property or services can be
made by the Company, except in accordance with a plan approved by the
Chief Executive Officer;
o When permitted by law and authorized by the Chief Executive Officer,
Company funds and facilities may be used to provide administrative support
for the operation of political action committees or programs, the purposes
of which include the disbursement of financial contributions made by
certain employees, shareholders and/or others to political parties or
candidates. No Company funds, facilities or other property will be used for
other than administrative support of such a committee;
o When permitted by law and authorized by the Chief Executive Officer,
expenditures of Company funds may be made to inform or influence the voting
public on an issue of importance to the business of the Company and its
shareholders.
If an employee or Director is requested to make a political contribution or
to provide assistance on behalf of the Company, whether personal or corporate,
and such employee or Director has any questions regarding this Company policy or
applicable law, the employee or Director should contact the Company's Vice
President - Government Relations or the Law Department.
Reference: Corporate Policy 3-0012
United States(degree)federal Government Contracting
To ensure that the Company complies with federal regulations on United
States governmental contracts, all employees involved in the performance of work
under governmental contracts are to be adequately informed and sufficiently
trained in the policies and practices contained in the Code of Business Conduct
and other Company policies specifically relating to government contracting. Each
business unit manager with contracts with the United States government is
responsible for ensuring that training sessions regarding these policies are
conducted and that the training sessions are properly documented.
The Company takes appropriate, timely action to correct violations of
United States governmental standards. If any employee has a question on the
propriety of a transaction, the employee must report the transaction to the
immediate supervisor. If the supervisor finds the question to have substance,
the supervisor must report the transaction to the General Counsel or his or her
designee. The supervisor must advise the employee of the action the supervisor
has taken. If the employee disagrees with the supervisor or if the employee is
not comfortable reporting the transaction to the supervisor, the employee may
contact the General Counsel or his or her designee directly.
When cost and pricing data are required to respond to a government
solicitation, the cost and pricing data must be current, accurate, and complete
at the time of submission. All costs are to be properly recorded, documented,
and retained in compliance with United States federal procurement regulations.
Each business unit doing business with the United States government must invoice
the government in strict compliance with United States governmental cost
principles and other United States federal regulations.
Many United States governmental projects in which the Company
participates may involve classified or proprietary materials or information. In
these cases, the Company complies with all United States government security
regulations to prevent unauthorized access, distribution, or use of any
classified information.
The Company complies with applicable United States federal statutes and
regulations governing the employment of former United States military,
Department of Defense, or other federal employees. When the Company contemplates
hiring a former United States governmental employee or engaging the employee as
a consultant, the responsible business unit manager shall consult with the Law
Department for guidance.
Reference: Corporate Policy 3-0017
Confidential Reporting of Alleged Code Violations
If you need advice or assistance or know of a violation of the Code of
Business Conduct, you should contact management or the Law Department in person
or by telephone. You may also send an e-mail to FHOUCODE or a letter to the
special Mailbox noted below, or you may call the Company's Ethics Helpline.
If you use the Ethics Helpline, Mailbox or Code e-mail address:
1. You may refrain from identifying yourself (although, in the absence of
such identification, the Company may have insufficient information to
investigate the allegations).
2. No retribution shall be imposed on you for making the report in good
faith unless you are one of the violators.
3. Your confidentiality shall be maintained unless disclosure is:
o Required or advisable in connection with any governmental investigation
or report;
o In the interests of the Company, consistent with the goals of the Code;
or
o Required or advisable in the Company's legal defense of the matter.
The Ethics Helpline, Mailbox and Code e-mail address are not intended
to be used for personal grievances. All matters that do not appear to constitute
violations of the Code of Business Conduct will be referred to the appropriate
department; for example, reports concerning personnel grievances will be sent to
the Human Resources Department.
The Ethics Helpline is answered by an independent company and is
available every day, 24 hours a day. Translators are available on request. If
you are calling from the United States or Canada, you may access the Ethics
Helpline toll free by dialing:
0-000-000-0000
If you are in the United Kingdom, you may dial toll free: 0000-000-0000 If you
are in Indonesia, you may dial toll free:
001-803-1-009-1244
If you are calling from any other country, you may call collect at:
000-000-0000
The address of the Mailbox for making Code reports is:
Director of Business Conduct Halliburton Company
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000 X.X.X.
Useful Telephone Numbers
Executive Vice President 713.759.2620
and General Counsel
Law Department - Houston, TX 281.575.4434
(Energy Services Group)
Law Department - Houston, TX 713.753.2241
(Xxxxxxx Xxxxx & Root)
Law Department - Houston, TX 713.753.2344
(KBR Government Operations)
General Counsel and Secretary -
Landmark 713.839.2422
Law Department - Leatherhead
44.1372.86.6583
Law Department - Aberdeen 44.1224.776071
Law Department - Cairo 00.0.000.0000
Law Department - Dubai 971.4.3036629
Law Department - Moscow 7.095.755.8300
Law Department - Perth 00.0.0000.0000
Law Department - Singapore 65.6329.7779
Chief Financial Officer 713.759.2636
Vice President - Human Resources 281.575.3734
Director of Audit Services 713.839.4747
Security Department 713.839.4704
Director of Business Conduct 713.759.2673
Training
Code of Business Conduct training is available on the Company's
intranet. Additionally, various departments offer a significant number of
training courses in a wide number of Code of Business Conduct subjects that
include, among many others, environmental compliance, safety, compliance with
laws and equal opportunity. To arrange training on the Code of Business Conduct
or other subjects, contact the Director of Business Conduct.
Distribution
The Company's Code of Business Conduct is a very important part of the
governance of the Company. A summary of the Code is published in a number of
languages and is distributed to employees in hard copy and on the Company's
intranet. The Code of Business Conduct is also published on the Company's
internet home page at xxxx://xxx.xxxxxxxxxxx.xxx. To obtain a full copy of the
Company's Code of Business Conduct, contact the Director of Business Conduct.
Consulting Agreement
MachineTalker, Inc.
EXHIBIT 2
Affidavit for Consultant - Final Release
(submit with final invoice)
CONSULTANT Prime Contractor
Xxxxxxx Xxxxx & Root Services, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
"AFFIDAVIT FOR CONSULTANT"
RE: AGREEMENT/WORK RELEASE NO.
_NAME OF CONSULTANT: DATE OF AGREEMENT:
_NAME OF OWNER UNDER AGREEMENT: Xxxxxxx Xxxxx & Root Services, Inc.
-----------------------------------
WHEREAS, the above-named Consultant entered into the above-referenced
Agreement with Xxxxxxx Xxxxx & Root Services, Inc. for performance by Consultant
of the Services described in the Agreement; and
WHEREAS, under the Agreement certain monies are not due and payable
unto Consultant until all bills for labor, material, and other changes arising
in the performance of the Services have been fully paid by the Consultant;
NOW, THEREFORE, for the purpose of inducing Xxxxxxx Xxxxx & Root
Services, Inc. to pay over such monies unto the Consultant, the Consultant does
hereby:
Warrant and represent to Xxxxxxx Xxxxx & Root Services, Inc.
that all bills for labor, material, re-sublet work, equipment rental,
taxes, insurance and all other charges arising in connection with the
performance of the Services have been fully paid by or for the
Consultant, except as listed below;
Agree to indemnify and hold harmless Xxxxxxx Xxxxx & Root
Services, Inc. from all liens, claims, demands, penalties, losses,
costs, damages, and liability in any manner arising out of or in
connection with any claim by any person, entity or agency for payment
for work or labor performed or material furnished pursuant to or in
connection with the Agreement;
Release, relieve and discharge Xxxxxxx Xxxxx & Root Services,
Inc. from all claims for payment (other than unpaid retainage, if any)
for work performed under or in connection with the Agreement or any
change order or other modification thereto, except as listed below.
EXCEPTIONS:
Signed:_____________________________________________
Printed Name and Title_____________________________________________
FOR CONSULTANT
SUBSCRIBED AND SWORN TO before me this the_______day of__________2003
NOTARY PUBLIC
County of___________________
State of__________________________
Consulting Agreement
MachineTalker, Inc.
EXHIBIT 3
Small Business Program Representations
52.21 9-1 SMALL BUSINESS PROGRAM REPRESENTATIONS (APR 2002) - ALTERNATE I (APR
2002)
(a)(1) The North American Industry Classification System (NAICS) code for this
acquisition is 561210.
(2) The small business size standard is $6,000,000.00.
(3) The small business size standard for a concern which submits an offer in its
own name, other than on a construction or service contract, but which proposes
to furnish a product which it did not itself manufacture, is 500 employees.
(b) Representations. (1) The offeror represents as part of its offer that it [ ]
is, [ ] is not a small business concern.
(2) (Complete only if the offeror represented itself as a small business concern
in paragraph (b)(1) of this provision.) The offeror represents, for general
statistical purposes, that it [ ] is, [ ] is not a small disadvantaged business
concern as defined in 13 CFR 124.1002.
(3) (Complete only if the offeror represented itself as a small business concern
in paragraph (b)(1) of this provision.) The offeror represents as part of its
offer that it [ ] is, [ ] is not a women-owned small business concern.
(4) (Complete only if the offeror represented itself as a small business concern
in paragraph (b)(1) of this provision.) The offeror represents as part of its
offer that it [ ] is, [ ] is not a veteran-owned small business concern.
(5) (Complete only if the offeror represented itself as a veteran-owned small
business concern in paragraph (b)(4) of this provision.) The offeror represents
as part of its offer that it [ ] is, [ ] is not a service-disabled veteran-owned
small business concern.
(6) [Complete only if the offeror represented itself as a small business concern
in paragraph (b)(1) of this provision.] The offeror represents, as part of its
offer, that--
(i) It [ ] is, [ ] is not a HUBZone small business concern listed, on the date
of this representation, on the List of Qualified HUBZone Small Business Concerns
maintained by the Small Business Administration, and no material change in
ownership and control, principal office, or HUBZone employee percentage has
occurred since it was certified by the Small Business Administration in
accordance with 13 CFR part 126; and
(ii) It [ ] is, [ ] is not a joint venture that complies with the requirements
of 13 CFR part 126, and the representation in paragraph (b)(6)(i) of this
provision is accurate for the HUBZone small business concern or concerns that
are participating in the joint venture. (The offeror shall enter the name or
names of the HUBZone small business concern or concerns that are participating
in the joint venture:
) Each HUBZone small business concern participating in the joint venture shall
submit a separate signed copy of the HUBZone representation.
(7) (Complete if offeror represented itself as disadvantaged in paragraph (b)(2)
of this provision.) The offeror shall check the category in which its ownership
falls:
____ Black American.
____ Hispanic American.
____ Native American (American Indians, Eskimos, Aleuts, or Native Hawaiians).
____ Asian-Pacific American (persons with origins from Burma, Thailand,
Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos, Cambodia
(Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the
Pacific Islands (Republic of Palau), Republic of the Xxxxxxxx Islands, Federated
States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam,
Samoa, Macao, Hong Kong, Fiji, Tonga, Kiribati, Tuvalu, or Nauru).
Subcontinent Asian (Asian-Indian) American (persons with origins from
India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands, or Nepal).
Individual/concern, other than one of the preceding.
(c) Definitions. As used in this provision--
Service-disabled veteran-owned small business concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more service-disabled
veterans or, in the case of any publicly owned business, not less than 51
percent of the stock of which is owned by one or more service-disabled veterans;
and
(ii) The management and daily business operations of which are controlled by one
or more service-disabled veterans or, in the case of a veteran with permanent
and severe disability, the spouse or permanent caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38 U.S.C. 101(2),
with a disability that is service-connected, as defined in 38 U.S.C. 101(16).
"Small business concern," means a concern, including its affiliates, that is
independently owned and operated, not dominant in the field of operation in
which it is bidding on Government contracts, and qualified as a small business
under the criteria in 13 CFR Part 121 and the size standard in paragraph (a) of
this provision.
Veteran-owned small business concern means a small business concern--
(1) Not less than 51 percent of which is owned by one or more veterans (as
defined at 38 U.S.C. 101(2)) or, in the case of any publicly owned business, not
less than 51 percent of the stock of which is owned by one or more veterans; and
(2) The management and daily business operations of which are controlled by one
or more veterans.
"Women-owned small business concern," means a small business concern --
(1) That is at least 51 percent owned by one or more women or, in the case of
any publicly owned business, at least 51 percent of the stock of which is owned
by one or more women; or
(2) Whose management and daily business operations are controlled by one or more
women.
(d) Notice.
(1) If this solicitation is for supplies and has been set aside, in whole or in
part, for small business concerns, then the clause in this solicitation
providing notice of the set-aside contains restrictions on the source of the end
items to be furnished.
(2) Under 15 U.S.C. 645(d), any person who misrepresents a firm's status as a
small, HUBZone small, small disadvantaged, or women-owned small business concern
in order to obtain a contract to be awarded under the preference programs
established pursuant to section 8(a), 8(d), 9, or 15 of the Small Business Act
or any other provision of Federal law that specifically references section 8(d)
for a definition of program eligibility, shall--
(i) Be punished by imposition of fine, imprisonment, or both;
(ii) Be subject to administrative remedies, including suspension and debarment;
and
(iii) Be ineligible for participation in programs conducted under the authority
of the Act.
(End of provision)
52.21 9-19 SMALL BUSINESS CONCERN REPRESENTATION FOR THE SMALL BUSINESS
COMPETITIVENESS DEMONSTRATION PROGRAM (OCT 2000)
(a) Definition.
"Emerging small business" as used in this solicitation, means a small business
concern whose size is no greater than 50 percent of the numerical size standard
applicable to the North American Industry Classification System (NAICS) code
assigned to a contracting opportunity.
(b) [Complete only if the Offeror has represented itself under the provision at
52.219-1 as a small business concern under the size standards of this
solicitation.] The Offeror [ ] is, [ ] is not an emerging small business.
(c) (Complete only if the Offeror is a small business or an emerging small
business, indicating its size range.)
Offeror's number of employees for the past 12 months (check this column if size
standard stated in solicitation is expressed in terms of number of employees) or
Offeror's average annual gross revenue for the last 3 fiscal years (check this
column if size standard stated in solicitation is expressed in terms of annual
receipts). (Check one of the following.) No. of Employees Avg. Annual Gross
Revenues
50 or fewer $1 million or less
-------- -------
101 - 250 $2,000,001 - $3.5 million
-------- -------
251 - 500 $3,500,001 - $5 million
-------- -------
501 - 750 $5,000,001 - $10 million
-------- -------
751 - 1,000 $10,000,001 - $17 million
-------- -------
Over 1,000 Over $17 million
-------- -------
(End of provision)
52.21 9-21 SMALL BUSINESS SIZE REPRESENTATION FOR TARGETED INDUSTRY CATEGORIES
UNDER THE SMALL BUSINESS COMPETITIVENESS DEMONSTRATION PROGRAM (MAY 1999)
(Complete only if the Offeror has represented itself under the provision at
52.219-1 as a small business concern under the size standards of this
solicitation.)
Offeror's number of employees for the past 12 months (check this column if size
standard stated in solicitation is expressed in terms of number of employees) or
Offeror's average annual gross revenue for the last 3 fiscal years (check this
column if size standard stated in solicitation is expressed in terms of annual
receipts). (Check one of the following.)
No. of Employees Avg. Annual Gross Revenues
50 or fewer $1 million or less
-------- -------
101 - 250 $2,000,001 - $3.5 million
-------- -------
251 - 500 $3,500,001 - $5 million
-------- -------
501 - 750 $5,000,001 - $10 million
-------- -------
751 - 1,000 $10,000,001 - $17 million
-------- -------
Over 1,000 Over $17 million
-------- -------
(End of provision)
52.222-22 PREVIOUS CONTRACTS AND COMPLIANCE REPORTS (FEB 1999) The offeror
represents that --
(a) [ ] It has, [ ] has not participated in a previous contract or subcontract
subject to the Equal Opportunity clause of this solicitation;
(b) [ ] It has, [ ] has not, filed all required compliance reports; and
(c) Representations indicating submission of required compliance reports, signed
by proposed subcontractors, will be obtained before subcontract awards.
(End of provision)
52.222-25 AFFIRMATIVE ACTION COMPLIANCE (APR 1984)
The offeror represents that (a) [ ] it has developed and has on file, [ ] has
not developed and does not have on file, at each establishment, affirmative
action programs required by the rules and regulations of the Secretary of Labor
(41 CFR 60-1 and 60-2), or
(b) [ ] has not previously had contracts subject to the written affirmative
action programs requirement of the rules and regulations of the Secretary of
Labor.
(End of provision)
52.222-38 COMPLIANCE WITH VETERANS' EMPLOYMENT REPORTING REQUIREMENTS (DEC 2001)
By submission of its offer, the offeror represents that, if it is subject to the
reporting requirements of 38 U.S.C. 4212(d) (i.e., if it has any contract
containing Federal Acquisition Regulation clause 52.222-37, Employment Reports
on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible
Veterans), it has submitted the most recent VETS-100 Report required by that
clause.
(End of provision)
52.223-13 CERTIFICATION OF TOXIC CHEMICAL RELEASE REPORTING (OCT 2000)
(a) Submission of this certification is a prerequisite for making or entering
into this contract imposed by Executive Order 12969, August 8, 1995.
(b) By signing this offer, the offeror certifies that--
(1) As the owner or operator of facilities that will be used in the performance
of this contract that are subject to the filing and reporting requirements
described in section 313 of the Emergency Planning and Community Right-to-Know
Act of 1986 (EPCRA) (42 U.S.C. 11023) and section 6607 of the Pollution
Prevention Act of 1990 (PPA) (42 U.S.C. 13106), the offeror will file and
continue to file for such facilities for the life of the contract the Toxic
Chemical Release Inventory Form (Form R) as described in sections 313(a) and (g)
of EPCRA and section 6607 of PPA; or
(2) None of its owned or operated facilities to be used in the performance of
this contract is subject to the Form R filing and reporting requirements because
each such facility is exempt for at least one of the following reasons: (Check
each block that is applicable.)
[ ] (i) The facility does not manufacture, process or otherwise use any toxic
chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c);
[ ] (ii) The facility does not have 10 or more full-time employees as specified
in section 313.(b)(1)(A) of EPCRA 42 U.S.C. 11023(b)(1)(A);
[ ] (iii) The facility does not meet the reporting thresholds of toxic chemicals
established under section 313(f) of EPCRA, 42 U.S.C. 11023(f) (including the
alternate thresholds at 40 CFR 372.27, provided an appropriate certification
form has been filed with EPA);
[ ] (iv) The facility does not fall within Standard Industrial Classification
Code (SIC) major groups 20 through 39 or their corresponding North American
Industry Classification System (NAICS) sectors 31 through 33; or
[ ] (v) The facility is not located within any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Northern Mariana Islands, or any other
territory or possession over which the United States has jurisdiction.
(End of provision)
52.230-1 COST ACCOUNTING STANDARDS NOTICES AND CERTIFICATION (JUN 2000)
Note: This notice does not apply to small businesses or foreign governments.
This notice is in three parts, identified by Roman numerals I through III.
Offerors shall examine each part and provide the requested information in order
to determine Cost Accounting Standards (CAS) requirements applicable to any
resultant contract.
If the offeror is an educational institution, Part II does not apply unless the
contemplated contract will be subject to full or modified CAS coverage pursuant
to 48 CFR 9903.201-2(c)(5) or 9903.201-2(c)(6), respectively.
I. DISCLOSURE STATEMENT--COST ACCOUNTING PRACTICES AND CERTIFICATION
(a) Any contract in excess of $500,000 resulting from this solicitation will be
subject to the requirements of the Cost Accounting Standards Board (48 CFR
Chapter 99), except for those contracts which are exempt as specified in 48 CFR
9903.201-1.
(b) Any offeror submitting a proposal which, if accepted, will result in a
contract subject to the requirements of 48 CFR Chapter 99 must, as a condition
of contracting, submit a Disclosure Statement as required by 48 CFR 9903.202.
When required, the Disclosure Statement must be submitted as a part of the
offeror's proposal under this solicitation unless the offeror has already
submitted a Disclosure Statement disclosing the practices used in connection
with the pricing of this proposal. If an applicable Disclosure Statement has
already been submitted, the offeror may satisfy the requirement for submission
by providing the information requested in paragraph (c) of Part I of this
provision.
CAUTION: In the absence of specific regulations or agreement, a practice
disclosed in a Disclosure Statement shall not, by virtue of such disclosure, be
deemed to be a proper, approved, or agreed-to practice for pricing proposals or
accumulating and reporting contract performance cost data.
(c) Check the appropriate box below:
(1) Certificate of Concurrent Submission of Disclosure Statement.
The offeror hereby certifies that, as a part of the offer, copies of the
Disclosure Statement have been submitted as follows: (i) original and one copy
to the cognizant Administrative Contracting Officer (ACO) or cognizant Federal
agency official authorized to act in that capacity (Federal official), as
applicable, and (ii) one copy to the cognizant Federal auditor.
(Disclosure must be on Form No. CASB DS-1 or CASB DS-2, as applicable. Forms may
be obtained from the cognizant ACO or Federal official and/or from the
loose-leaf version of the Federal Acquisition Regulation.)
Date of Disclosure Statement:_________________Name and Address of Cognizant ACO
or Federal Official Where Filed:____________________
The offeror further certifies that the practices used in estimating costs in
pricing this proposal are consistent with the cost accounting practices
disclosed in the Disclosure Statement.
(2)Certificate of Previously Submitted Disclosure Statement. The offeror hereby
certifies that the required Disclosure Statement was filed as follows:
Date of Disclosure Statement:___________Name and Address of Cognizant ACO or
Federal Official Where Filed:__________________________________
The offeror further certifies that the practices used in estimating costs in
pricing this proposal are consistent with the cost accounting practices
disclosed in the applicable Disclosure Statement.
(3)Certificate of Monetary Exemption.
The offeror hereby certifies that the offeror, together with all divisions,
subsidiaries, and affiliates under common control, did not receive net awards of
negotiated prime contracts and subcontracts subject to CAS totaling more than
$50 million (of which at least one award exceeded $1 million) in the cost
accounting period immediately preceding the period in which this proposal was
submitted. The offeror further certifies that if such status changes before an
award resulting from this proposal, the offeror will advise the Contracting
Officer immediately.
(4) Certificate of Interim Exemption.
The offeror hereby certifies that (i) the offeror first exceeded the monetary
exemption for disclosure, as defined in (3) of this subsection, in the cost
accounting period immediately preceding the period in which this offer was
submitted and (ii) in accordance with 48 CFR 9903.202-1, the offeror is not yet
required to submit a Disclosure Statement. The offeror further certifies that if
an award resulting from this proposal has not been made within 90 days after the
end of that period, the offeror will immediately submit a revised certificate to
the Contracting Officer, in the form specified under subparagraph (c)(1) or
(c)(2) of Part I of this provision, as appropriate, to verify submission of a
completed Disclosure Statement.
CAUTION: Offerors currently required to disclose because they were awarded a
CAS-covered prime contract or subcontract of $50 million or more in the current
cost accounting period may not claim this exemption (4). Further, the exemption
applies only in connection with proposals submitted before expiration of the
90-day period following the cost accounting period in which the monetary
exemption was exceeded.
II. COST ACCOUNTING STANDARDS--ELIGIBILITY FOR MODIFIED CONTRACT COVERAGE
If the offeror is eligible to use the modified provisions of 48 CFR
9903.201-2(b) and elects to do so, the offeror shall indicate by checking the
box below. Checking the box below shall mean that the resultant contract is
subject to the Disclosure and Consistency of Cost Accounting Practices clause in
lieu of the Cost Accounting Standards clause.
[ ] The offeror hereby claims an exemption from the Cost Accounting Standards
clause under the provisions of 48 CFR 9903.201-2(b) and certifies that the
offeror is eligible for use of the Disclosure and Consistency of Cost Accounting
Practices clause because during the cost accounting period immediately preceding
the period in which this proposal was submitted, the offeror received less than
$50 million in awards of CAS-covered prime contracts and subcontracts. The
offeror further certifies that if such status changes before an award resulting
from this proposal, the offeror will advise the Contracting Officer immediately.
CAUTION: An offeror may not claim the above eligibility for modified contract
coverage if this proposal is expected to result in the award of a CAS-covered
contract of $50 million or more or if, during its current cost accounting
period, the offeror has been awarded a single CAS-covered prime contract or
subcontract of $25 million or more.
III. ADDITIONAL COST ACCOUNTING STANDARDS APPLICABLE TO EXISTING CONTRACTS
The offeror shall indicate below whether award of the contemplated contract
would, in accordance with subparagraph (a)(3) of the Cost Accounting Standards
clause, require a change in established cost accounting practices affecting
existing contracts and subcontracts.
[ ] YES [ ] NO
(End of provision)
252.209-7001 DISCLOSURE OF OWNERSHIP OR CONTROL BY THE GOVERNMENT OF A TERRORIST
COUNTRY (MAR 1998)
(a) "Definitions."
As used in this provision --
(a) "Government of a terrorist country" includes the state and the government of
a terrorist country, as well as any political subdivision, agency, or
instrumentality thereof.
(2) "Terrorist country" means a country determined by the Secretary of State,
under section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C.
App. 2405(j)(i)(A)), to be a country the government of which has repeatedly
provided support for such acts of international terrorism. As of the date of
this provision, terrorist countries include: Cuba, Iran, Iraq, Libya, North
Korea, Sudan, and Syria.
(3) "Significant interest" means --
(i) Ownership of or beneficial interest in 5 percent or more of the firm's or
subsidiary's securities. Beneficial interest includes holding 5 percent or more
of any class of the firm's securities in "nominee shares," "street names," or
some other method of holding securities that does not disclose the beneficial
owner;
(ii) Holding a management position in the firm, such as a director or officer;
(iii) Ability to control or influence the election, appointment, or tenure of
directors or officers in the firm;
(iv) Ownership of 10 percent or more of the assets of a firm such as equipment,
buildings, real estate, or other tangible assets of the firm; or
(v) Holding 50 percent or more of the indebtness of a firm.
(b) "Prohibition on award."
In accordance with 10 U.S.C. 2327, no contract may be awarded to a firm or a
subsidiary of a firm if the government of a terrorist country has a significant
interest in the firm or subsidiary or, in the case of a subsidiary, the firm
that owns the subsidiary, unless a waiver is granted by the Secretary of
Defense.
(c) "Disclosure."
If the government of a terrorist country has a significant interest in the
Offeror or a subsidiary of the Offeror, the Offeror shall disclosure such
interest in an attachment to its offer. If the Offeror is a subsidiary, it shall
also disclose any significant interest the government of a terrorist country has
in any firm that owns or controls the subsidiary. The disclosure shall include
--
(1) Identification of each government holding a significant interest; and
(2) A description of the significant interest held by each government.
(End of provision)
252.225-7020 TRADE AGREEMENTS CERTIFICATE (APR 2003)
(a) Definitions. Caribbean Basin country end product, designated country end
product, NAFTA country end product, non-designated country end product,
qualifying country end product, and U.S. -made end product have the meanings
given in the Trade Agreements clause of this solicitation.
(b) Evaluation. The Government--
(1) Will evaluate offers in accordance with the policies and procedures of Part
225 of the Defense Federal Acquisition Regulation Supplement; and
(2) Will consider only offers of end products that are U.S.-made, qualifying
country, designated country, Caribbean Basin country, or NAFTA country end
products, unless the Government determines that--
(i) There are no offers of such end products;
(ii) The offers of such end products are insufficient to fulfill the
Government's requirements; or
(iii) A national interest exception to the Trade Agreements Act applies.
(c) Certification and identification of country of origin.
(1) For all line items subject to the Trade Agreements clause of this
solicitation, the offeror certifies that each end product to be delivered under
this contract, except those listed in paragraph (c)(2) of this provision, is a
U.S.-made, qualifying country, designated country, Caribbean Basin country, or
NAFTA country end product.
(2) The following supplies are other non-designated country end products:
(Line Item Number)
(Country of Origin)
(End of provision)
252.247-7022 REPRESENTATION OF EXTENT OF TRANSPORTATION BY SEA (AUG 1992)
(a) The Offeror shall indicate by checking the appropriate blank in paragraph
(b) of this provision whether transportation of supplies by sea is anticipated
under the resultant contract. The term supplies is defined in the Transportation
of Supplies by Sea clause of this solicitation.
(b) Representation. The Offeror represents that it:
(1) Does anticipate that supplies will be transported by sea in the
performance of any contract or subcontract resulting from this solicitation.
(2) Does not anticipate that supplies will be transported by sea in the
performance of any contract or subcontract resulting from this solicitation.
(c) Any contract resulting from this solicitation will include the
Transportation of Supplies by Sea clause. If the Offeror represents that it will
not use ocean transportation, the resulting contract will also include the
Defense FAR Supplement clause at 252.247-7024, Notification of Transportation of
Supplies by Sea.
(End of provision)
52.000-4117 CONTRACTOR'S CERTIFICATION
Bidders are cautioned to note the "Contractor's Certification," included in this
solicitation, and to furnish the information required by paragraph b.,
Partnerships, and paragraph c., Corporations, as appropriate.
Name of Company:
Signed by:
Typed/Printed Name:
Date Signed:
Consulting Agreement MachineTalker, Inc.
EXHIBIT 4
Organizational Conflict of Interest
ORGANIZATIONAL CONFLICT OF INTEREST
CERTIFICATION
MachineTalker, Inc.
Consultant
Consultant certifies that, to the best of its knowledge and belief, and
excepting those organizations listed below, no facts exist concerning any past,
present, or currently planned activities (financial, contractual, organizational
or otherwise) which relate to the work contemplated to be provided to the
Xxxxxxx Xxxxx & Root Services, Inc. and which are relevant to possible
organizational conflicts of interest.
KBRSI acknowledges that Consultant provides its MachineTalker(R) products, its
consulting and its development services to other clients; and that Consultant
has developed the means and promoted the use of its products in shipping
container tracking and security to many organizations including KBRSI. In this
regard Consultant has published original material, given seminars and has
entered into prior negotiations with those clients listed below:
Continental Airlines, Universal Guardian Holdings, Mitsubishi,
Sovereign Tracking Systems, Nera Satellite Systems (Norwegian
shipping).
Consultant certifies that these referenced clients may specify the use of
MachineTalker(R) products in the tracking of shipping containers or inventory.
Consultant acknowledges that the goal of the KBRSI Agreement is to develop the
means to track shipping containers and inventory on a global basis and to
provide that service for the shipping industry. Therefore, in keeping with the
Agreement, should any of these existing clients wish to develop a similar
service using MachineTalker(R) products, Consultant will introduce them to KBRSI
to offer its capability to them.
Signature:
Name:
Title:
Date:
Company:
Address:
Phone No.:
Consulting Agreement MachineTalker, Inc.
EXHIBIT 5
Secrecy Agreement
SECRECY AGREEMENT
MachineTalker, Inc. hereinafter called Consultant, agrees to cooperate fully
with Xxxxxxx Xxxxx & Root Services, Inc, hereinafter called Company in its
patents, proprietary information, and nondisclosure policies, copies of which
have been provided to Consultant. Consultant further agrees as follows:
1. Consultant will not use or disclose to anyone, at any time or in any
manner, any trade secrets or confidential information which Consultant
learns as a result of/or during the performance of Consultant's
services.
2. Such "trade secrets confidential information" shall include everything
told to Consultant in confidence as a trade secret and also all
photographs, maps, drawings, reports, specifications, operating data,
procurement or marketing information, cost data and other information
related to the details of the work. Consultant is involved in and the
operations and installations affected. No such information shall be
released to anyone other, than authorized representatives of Company
for whom the work is being performed, who have a need to know, either
before or after completion of the work, except with the written consent
by Company's representative.
3. These obligations shall continue during the term of the Agreement and
for three (3) years thereafter.
4. Consultant understands and agrees that these obligations may be
enforced by legal action for damages, injunction or otherwise, brought
by Company for whom the work is performed, or their assigns.
I have read this Agreement and agree to its provisions. MachineTalker, Inc.
SIGNED:
NAME:
DATE:
EXHIBIT 6
Software License
EXHIBIT 6
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is made and entered into,
effective as of December __, 2004 (the "Effective Date"), by and between
MACHINETALKER, INC., (MACHINETALKER) a Delaware corporation ("Licensor"), and
XXXXXXX, XXXXX & ROOT SERVICES, INC., (KBR) a Delaware corporation ("LICENSEE"),
with reference to the following facts:
RECITALS:
MACHINETALKER owns the "Software" and manufactures and sells the "Licensed
Product" described below, and the parties have agreed to execute this Agreement
in order to memorialize the terms and conditions on which MACHINETALKER shall
grant to KBR certain license rights to use the "Software" in connection with its
use of the Licensed Product.
AGREEMENTS:
NOW, THEREFORE, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 "CONFIDENTIAL INFORMATION" means and includes (a) all Trade
Secrets, knowledge, data and other information of a confidential or proprietary
nature which is owned, held, or known by MACHINETALKER and relating to the
Licensed Technology, including but not limited to the Source Code for the
Software, and all customer lists, business plans, marketing plans and
strategies, pricing strategies and other subject matter pertaining to the
Licensed Technology, and (b) all other information which either (i) is
conspicuously identified as "confidential" at the time it is disclosed to KBR,
or (ii) is verbally disclosed, and/or identified as "confidential" at the time
of such disclosure, within Five (5) days after the latter of the execution of
this Agreement or the disclosure of such information.
1.2 "DOCUMENTATION" means those User Guides that MACHINETALKER provides
to KBR upon KBR's purchase of the Licensed Product.
1.3 "EFFECTIVE DATE" has the meaning ascribed thereto in the first
paragraph of this Agreement.
1.4 "LICENSE" means the license granted by MACHINETALKER to KBR
pursuant to Section 2, below.
1.5 "LICENSE FEES" means the sum of Two Hundred Thousand Dollars
($200,000), which KBR shall pay to MACHINETALKER concurrently herewith pursuant
to Section 3, below.
1.6 "LICENSED PRODUCT" means those certain devices that employ the use
of the Licensed Technology and that are manufactured and sold by MACHINETALKER
that are intended to enable users of those devices to track inventory,
containers and other similar packages.
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Software License Agreement
1.7 "LICENSED TECHNOLOGY" means the Documentation and the Software that
enables the Licensed Products to transmit and receive information via
self-coordinated machine network by employing MACHINETALKER's Simple Machine
Management Protocol (SMMP) technology, as described in U.S. Patent Application
2004/0114557. The scope of the technology disclosed within U.S. Patent
Application 2004/0114557, and licensed herein, shall be considered limited to
such aspects of the technology as reasonably relates to applications, systems,
or solutions that track inventory, containers and other similar packages.
1.8 "MATERIAL ERRORS" means reproducible or otherwise verifiable errors
in the Licensed Product and Technology that causes abnormal termination of the
Software program, loss of user data, or otherwise prevents the use of the
Licensed Product and Technology for its intended purpose.
1.9 "OBJECT CODE" means the version of a computer program that is not
in a programming language and is in a specific, machine-readable format only.
1.10 "SOFTWARE" means the Licensed Technology in Object Code form,
including the Documentation, that enables the Licensed Products to transmit and
receive information in a self-coordinated machine network manner by employing
MACHINETALKER's Simple Machine Management Protocol (SMMP) technology, as
described in U.S. Patent Application 2004/0114557.
1.11 "SOFTWARE UPDATES or UPGRADES" means such improvements and
enhancements to the Licensed Product and Technology as MACHINETALKER from time
to time shall produce, market, and give freely to KBR after the Effective Date,
or that KBR shall from time to time request and have provided by MACHINETALKER.
1.12 "SOURCE CODE" means the version of a computer program that is in a
programming language that is understandable by humans and shall include any
programmers' notes and similar documentation available prior to the date of this
agreement.
1.13 "TRADE SECRETS" means information that has independent economic
value, is not generally known in the industry, and is the subject of reasonable
efforts by either party to maintain secret.
2. GRANT OF LICENSE & RIGHT OF FIRST REFUSAL
2.1 EXCLUSIVE LICENSE. Subject to the limitations on "Use" set forth in
Section 2.3, below, MACHINETALKER hereby grants to KBR an exclusive license to
use the Software in connection with the use and operation of Licensed Products
to track inventory, containers and other similar packages. KBR acknowledges that
the foregoing License is a nonexclusive license as regards applications outside
the reasonable scope of the Licensed Products. Both Parties acknowledge that
this exclusive license is intended as an absolute limit on MACHINETALKER's right
and power to grant to any other person, juridical or otherwise, a license to use
the Licensed Technology and Licensed Products as described herein including the
right to use the same in connection with the sale of goods or services that may
be competitive with any goods or services sold now or within Five years of the
effective date of this License date by MACHINETALKER.
2.2 RESTRICTIONS ON USE. The exclusive license granted by MACHINETALKER
to KBR to use
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Software License Agreement
the Licensed Product and Technology is subject to the restriction that the use
of the Licensed Products and Technology is limited to a KBR solution to provide
a method of tracking inventory, containers and other similar packages, and such
use as the end users or intended clients might reasonably be required to utilize
said KBR solution.
This License is also limited by the following understanding of the
PARTIES that KBR will market and sell the Licensed Products and Technology and
shall in all cases have a Right of First Refusal on business opportunities that
may arise that involve the licensed area of tracking of inventory, containers,
and similar packages, but that opportunities that arise that KBR, within a
reasonable period of time, elects not to pursue may be taken up by MACHINETALKER
under the same terms and conditions as offered to KBR at the time of KBR's
written rejection, such rejection of the opportunity by KBR and acceptance of
the opportunity by MACHINETALKER shall waive the exclusivity of this License as
it applies to said singularly defined instance or opportunity at the KBR offered
terms and conditions.
2.3 LIMITATIONS ON USE. Notwithstanding any provision of this Agreement
to the contrary, KBR shall use the Licensed Technology only in connection with
KBR's use of Licensed Products to track inventory, containers and other similar
packages, and only with those Licensed Products that are supplied to KBR by
MACHINETALKER for re-sale as part of a KBR solution to provide a method of
tracking inventory, containers and other similar packages.
2.4 RESALE OF, or SUBLICENSING OF THIS LICENSE. MACHINETALKER grants to
KBR the right to resell this license in entirety to a 3rd party subject to the
rights and responsibilities established and conveyed herein, and subject to the
condition that such 3rd party be, or be wholly owned by, a company which is
registered, or incorporated in the United States. Any resale to a U.S. 3rd party
must transfer all rights and obligations of KBR to said U.S. 3rd party in
entirety. MACHINETALKER grants to KBR the right to sublicense this License in
whole or in part to any U.S. 3rd party, however, this grant of right to
sublicense is restricted to commercial sales reasonably relating to a KBR
solution for tracking inventory, containers and other similar packages.
2.5 DELIVERIES BY MACHINETALKER. Concurrent with the sale and delivery
of Licensed Products to KBR, MACHINETALKER shall deliver to KBR a copy of all
Documentation necessary for proper use of the Licensed Product in the field of
tracking inventory, containers and other similar packages.
3. KBR FEES. Concurrent with the execution of this Agreement, and in
consideration of all rights and licenses granted herein, KBR shall pay to
MACHINETALKER Two Hundred Thousand Dollars ($200,000) as a full and final
License Fee. Upon payment of said License Fee, all License rights granted herein
are mutually acknowledged by the parties to have been paid for in full and to be
royalty-free for the duration of this License.
4. REPRESENTATIONS AND WARRANTIES OF MACHINETALKER
4.1 REPRESENTATIONS AND WARRANTIES. MACHINETALKER represents and
warrants to KBR:
4.1.1 SOFTWARE AND DOCUMENTATION. That the Licensed Product
and Technology
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Software License Agreement
shall perform in accordance with the specifications as set forth in the
Consulting Agreement, of which this License is an inseparable part.
MACHINETALKER agrees to apply best efforts over the period of this
License to modify the specifications such that they are fit for the
intended use of the Licensed Products and Technology as described
herein.
4.1.2 INTELLECTUAL PROPERTY RIGHTS. That to the knowledge of
MACHINETALKER, as of the Effective Date of this Agreement, the Licensed
Technology does not infringe any patent, copyright, trade secret or
other intellectual property right of any third party and that they have
the right to sell the information, rights, patents and products
conveyed by this licensing agreement. MACHINETALKER agrees that they
will fully indemnify and defend KBR against any legal action alleging
breach or infringement of intellectual property rights related to use
of the Licensed Technology. Furthermore, MACHINETALKER agrees that they
will pay all costs and damages associated with and/or finally awarded
in any such action, provided that MACHINETALKER is notified promptly in
writing of the action and, upon their request and agreement to pay
associated expenses, that they are given control of such action and all
reasonably requested information and assistance necessary to settle or
defend the same. Should use of the Licensed Technology be enjoined as a
result of such action, then MACHINETALKER shall in a reasonable time
either: (a) At their own cost obtain for KBR the right to continue to
use the Licensed Technology; or (b) modify or replace the Licensed
Technology with non-infringing Technology.
4.1.3 INDEMNIFICATION. (A) MACHINETALKER AGREES TO INDEMNIFY
AND HOLD KBR HARMLESS FROM ANY LOSS, ACTION, OR CLAIM ARISING OUT OF
ANY DEFECTS OF THE LICENSED TECHNOLOGY, PROVIDED THAT KBR GIVES
MACHINETALKER NOTICE OF ANY SUCH LOSS OR CLAIM WITHIN 30 DAYS OF THE
DATE THAT KBR IS MADE AWARE OF THE CLAIM. KBR AGREES TO USE BEST
EFFORTS TO ASSIST MACHINETALKER IN ANY SUCH DEFENSE TO THE EXTENT
REASONABLE AND PRACTICABLE.
(B) KBR AGREES TO INDEMNIFY AND HOLD MACHINETALKER HARMLESS FROM ANY
LOSS OR CLAIM RELATED TO THE NEGLIGENCE OF KBR, ITS AGENTS OR EMPLOYEES
REGARDING THE INSTALLATION, USE, SALE OR SERVICING OF LICENSED
TECHNOLOGY OR ARISING OUT OF ANY REPRESENTATION OR WARRANTY MADE BY
KBR, ITS AGENTS, OR EMPLOYEES WHERE SUCH REPRESENTATION EXCEEDS
MACHINETALKER'S LIMITED WARRANTY IF SUCH LOSS OR CLAIM IS EXCLUSIVE OF
MACHINETALKER NEGLIGENCE, PROVIDED THAT MACHINETALKER GIVES KBR NOTICE
OF ANY SUCH LOSS OR CLAIM WITHIN 30 DAYS OF THE DATE THAT MACHINETALKER
IS MADE AWARE OF THE CLAIM. MACHINETALKER AGREES TO USE BEST EFFORTS TO
ASSIST KBR IN ANY SUCH DEFENSE TO THE EXTENT REASONABLE AND
PRACTICABLE.
In the event that either Party is entitled to claim damages from the other Party
subsequent to an action arising under article 17, above, such liability shall be
limited to:
1) Damages for bodily injury (including death) and damage to real
property and tangible personal property; and
2) The amount of any other actual direct damages, up to the charges (if
recurring, 12 month's charges apply) for the Product that is the
subject of the claim.
In no event shall either party be liable to the other for:
A) loss of, or damage to, records or data; or
B) special, incidental, or indirect damages or any consequential
economic damages; or
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Software License Agreement
C) lost profits, business, revenue, or anticipated savings.
All indemnities are subject to the limitations and exclusions elsewhere in this
Agreement.
NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, KBR'S MAXIMUM
LIABILITY TO MACHINETALKER SHALL NOT EXCEED THE AMOUNT OF $600,000 UNDER ANY
CIRCUMSTANCES, INCLUSIVE OF ATTORNEYS' FEES, COSTS, AND EXPENSES, FOR ANY CLAIM
ARISING FROM OR RELATED TO THE AGREEMENT OR TO THE SUBJECT MATTER OF THE
AGREEMENT. SUCH CLAIMS MIGHT INCLUDE BUT ARE NOT LIMITED TO CLAIMS FOR BREACH OF
CONTRACT.
5. ADDITIONAL AGREEMENTS OF THE PARTIES
5.1 COVENANTS OF KBR. KBR covenants and agrees:
5.1.1 APPOINT CONTACT. To appoint as MACHINETALKER's primary
contact in connection with the delivery and operation of the Licensed
Technology a limited number of personnel who possesses reasonable
skills sufficient to allow that person to assist competently in the
installation and operation of the Licensed Technology. MACHINETALKER
agrees to provide all necessary training and instruction to KBR
designated personnel at KBR's Premises pursuant to this Agreement.
5.1.2 ACCEPTANCE AND USE OF SOFTWARE. KBR agrees to accept and
use the Licensed Technology solely as part of an application, system,
or solution that enables end users of the Licensed Products to track
inventory, containers and other similar packages.
5.1.3 CONFIDENTIALITY. PARTIES agree to keep confidential the
terms and conditions of this Agreement, except for any disclosures (a)
made in connection with any dispute arising under this Agreement, to
the extent appropriate to enforce or defend KBR's rights under this
Agreement, (b) to the extent required by law, (c) made after the terms
of this Agreement that become available to the public other than by
reason of KBR's breach of its obligations under this Agreement, or (d)
made in response to a legal and proper request of any governmental
authority.
5.1.4 NO MODIFICATIONS. KBR agrees not to modify, reverse
engineer, decompile, or change or copy the Licensed Technology in any
manner for other than the purposes of integration with a monitoring
system without the express written consent of MACHINETALKER, which
shall not be unreasonable withheld.
5.2 COVENANTS OF MACHINETALKER. MACHINETALKER covenants and agrees:
5.2.1 DELIVERY OF SOFTWARE. To deliver the Licensed Product
and the Documentation concurrently with the sale and delivery of
Licensed Products.
5.2.2 CORRECTION OF MATERIAL ERRORS IN LICENSED PRODUCT AND
TECHNOLOGY. If a Material Error occurs in the Licensed Product and
Technology, then MACHINETALKER shall exercise commercially reasonable
best efforts to correct such error as promptly as reasonably
practicable.
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Software License Agreement
5.2.3 UPDATES AND UPGRADES. To deliver to KBR all Updates and
Upgrades to the Licensed Technology that are developed and published by
MACHINETALKER during the term of this Agreement that improve or correct
the performance of the Licensed Products.
5.3 OWNERSHIP. KBR acknowledges and agrees that except for the License
expressly granted herein, KBR shall not acquire any right, title, license, or
other interest in or claim to all or any portion of the Licensed Technology
(including any portion thereof constituting Confidential Information) by reason
of (a) the execution and delivery of this Agreement, or (b) the disclosure of
any information with respect to the Licensed Technology by MACHINETALKER to KBR
either pursuant to this Agreement or prior to execution hereof in connection
with discussions pertaining to the Licensed Product and Technology, or (c) KBR's
discovery of the Confidential Information in the course of the commercial
relationship contemplated by this Agreement.
6. CONFIDENTIAL INFORMATION
6.1 NONDISCLOSURE OF CONFIDENTIAL INFORMATION. If either PARTY hereto
receives from the other party written information which is marked "Confidential"
or "Proprietary", the receiving party agrees not to use such information except
in the performance of this Agreement, and to treat such information in the same
manner as it treats its own confidential information for a period of Five (5)
years from the date of disclosure. Without limiting the foregoing, it is agreed
that all communications between MACHINETALKER and KBR relating to bidding,
testing, or sales activities are to be confidential.
6.2 PERMITTED DISCLOSURE. Party's obligations under Section 6.1, above,
shall not apply with respect to any Confidential Information which:
A.) (i) is already rightfully in the possession of KBR; (ii) is or
becomes publicly available through no wrongful act of KBR; (iii) is rightfully
received by KBR from a third party without an obligation of confidentiality to
MACHINETALKER; (iv) is disclosed to a third party by MACHINETALKER without
restriction; or (v) is approved for release by written authorization of
MACHINETALKER.
B.) Is or becomes generally available to the public other than by
reason of a breach by either of the PARTIES of its obligations under this
Agreement; or
C.) Is compelled by court order to disclose, provided that KBR (i)
provides to MACHINETALKER a reasonable period prior to disclosure written notice
of all circumstances pertaining to the proposed disclosure, and (ii) cooperates
reasonably with any attempt by MACHINETALKER to obtain or file pleadings with
respect to any protective judicial order limiting or prohibiting the disclosure
of such Confidential Information except to the extent necessary for the purposes
of the proceeding in which the disclosure order arose; or
D.) MACHINETALKER agrees that the confidential information can be
disclosed to a third party under a non-disclosure agreement with that party, for
the sole purpose of preparing proposals, marketing, sales, and other activities
reasonably related to KBR's overall business strategy in the area of
applications, systems, or solutions that track inventory, containers and other
similar packages, where such final purpose is the sale of, and implementation
of, the Licensed Products.
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Software License Agreement
6.2.2 ACTION BETWEEN PARTIES. Disclosure of Confidential
Information in any action between the parties pursuant to or in
connection with this Agreement is permitted, provided that the
disclosing party first (a) provides the non-disclosing party at least
twenty-one (21) days advance written notice of such disclosure, (b)
takes all reasonable actions, at its sole cost and expense, to obtain a
protective order protecting such Confidential Information from
disclosure except to the extent directly required to construe or
enforce this Agreement or the rights and duties of the parties
hereunder, and (c) cooperates reasonably in efforts by non-disclosing
party to obtain or file pleadings with respect to any such protective
order.
6.3 EQUITABLE RELIEF. Parties (a) acknowledge that any violation of the
provisions of this Section 6 may cause immediate and irreparable damage for
which non-disclosing party cannot be adequately compensated by monetary damages,
(b) agree that in the event of any such breach that the non-disclosing party
shall be entitled to such preliminary or other injunctive relief, an order for
specific performance, and any other equitable relief that a court may determine
to be appropriate, (c) hereby waive any requirement that non-disclosing party
post, as a condition or other requirement of obtaining any such equitable
relief, a bond or other collateral, and (d) further agree that such equitable
relief shall be in addition to any damages or other remedies provided by law and
otherwise available to non-disclosing party as a result of disclosing party's
breach of confidentiality. Notwithstanding the above, the parties shall not be
liable to each other regarding obligations and remedies relating to the use of
and disclosure of Proprietary Information provided that the Receiving Party
affords the Proprietary Information the same degree of protection that it
affords to its own Proprietary Information of similar importance, but not less
than a reasonable degree of care.
7. TERM AND TERMINATION
7.1 TERM. Subject to the restrictions of Section 7.2, below, the term
of the License shall commence on the Effective Date and shall continue for a
period of Five (5) years.
7.2 TERMINATION. This Agreement may be terminated:
7.2.1 BY MACHINETALKER. By MACHINETALKER if KBR breaches any
material obligation imposed upon KBR under this Agreement or the
Purchase Order (including but not limited to the obligation to pay
License Fees when due) and fails to cure such breach within thirty (30)
days following the date on which MACHINETALKER delivers to KBR written
notice of default.
7.2.2 BY KBR. By KBR at any time upon thirty (30) days'
advance written notice to MACHINETALKER.
7.2.3 BY EITHER PARTY. Should the other party (a) become
insolvent; (b) make an assignment for the benefit of creditors; (c)
have a receiver appointed; (d) institute any proceedings for
liquidation or winding up.
7.3 EFFECT OF TERMINATION. Upon any termination of this Agreement for
any reason legally justified under the terms and conditions of this agreement:
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Software License Agreement
7.3.1 USE AND RETURN OF SOFTWARE. KBR shall cease using the
Licensed Technology and, at the election of MACHINETALKER, either (a)
shall return to MACHINETALKER all copies of the Licensed Technology
provided pursuant to this Agreement, or (b) shall destroy all copies of
the Licensed Technology provided pursuant to this Agreement.
7.3.2 SURVIVAL OF CLAIMS. Each party shall retain all claims
for breach of this Agreement with respect to periods prior to the
effective date of termination of this Agreement.
7.3.3 SURVIVAL OF OBLIGATIONS. The rights and obligations of
each party under Sections 5.1.4, 6, and 8 of this Agreement shall
survive the expiration or termination of this Agreement. In the event
of termination by KBR, MACHINETALKER's obligation to continue to sell
Licensed Products to KBR shall be limited to those Licensed Products
and Technology that KBR is contractually obligated to furnish to a
customer.
8. MISCELLANEOUS
8.1 TRADEMARKS. The name of either PARTY, and any trademarks, trade
names and logos associated with the PARTY may only be used as authorized in
writing by the owning PARTY.
8.2 NO IMPLIED LICENSE. No license is granted herein, either directly
or by implication, estoppel or otherwise, except as expressly provided for in
this Agreement.
8.3 SEVERABILITY. If any provision of this License is for any reason
found to be ineffective, unenforceable, or illegal by any court having
jurisdiction over both parties, such condition shall not affect the validity or
enforceability of any of the remaining portions hereof, unless it deprives any
party hereto of any material right or license held by such party under this
Agreement. The parties shall negotiate in good faith to replace any such
ineffective, unenforceable, or illegal provisions as soon as practicable, and
the substituted provision shall, as closely as possible, have the same economic
and legal effect as the eliminated provision.
8.4 INDEPENDENT CONTRACTORS. Performance by the parties under this
Agreement shall be as independent contractors. This Agreement is not intended
and shall not be construed as creating a joint venture or partnership, or as
causing either party to be treated as the agent of the other party for any
purpose or in any sense whatsoever, or to create any fiduciary or any other
obligations other than those expressly imposed by this Agreement.
8.5 ASSIGNMENT. Subject to the express limitations imposed by this
Agreement on KBR's right to assign its rights hereunder or to grant sublicenses,
this Agreement shall be binding upon and inure to the benefit of the parties,
their successors and permitted assignees.
8.6 GOVERNING LAW, JURISDICTION AND VENUE. This License shall be
governed by and subject to and construed according to the laws of the
Commonwealth of Virginia. Each party hereby consents to the jurisdiction of the
courts of the Commonwealth of Virginia for any action construing or enforcing
the rights and duties created hereunder. The parties agree that the exclusive
venue for all disputes arising under or in connection with this License shall be
a court of proper venue and jurisdiction in Virginia, and hereby waive any right
to object that such venue is inconvenient or otherwise inappropriate.
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Software License Agreement
8.7 ATTORNEYS' FEES. If any action or proceeding is commenced to
construe this License or the rights and remedies created herein, then the party
prevailing in that action shall be entitled to recover its costs and fees in
such action or proceeding, as well as all costs and fees of enforcing any
judgment entered therein.
8.8 FORCE MAJEUR. Neither party shall be liable for any default or
delay in performance of any of its obligations under this Agreement if such
default or delay is caused, directly or indirectly, by fire, flood, earthquake
or other acts of God; labor disputes, strikes or lockouts; acts of terrorism,
wars, rebellions or revolutions; riots or civil disorder; accidents or
unavoidable casualties; interruptions in transportation or communications
facilities or delays in transit or communication; supply shortages that could
not reasonably be avoided, or remedied; or the failure of any Person to perform
any commitment to such party related to this Agreement; or any other cause
beyond such party's reasonable control and remedy.
8.9 ENTIRE AGREEMENT; AMENDMENTS. This License may not be modified or
amended except by a written instrument mutually executed by the parties
subsequent to the effective date of this Agreement.
8.10 INTERPRETATION. Each party to this Agreement has been represented
by (or had adequate time to obtain the advice and input of) independent legal
counsel with respect to this Agreement. All pronouns and any variation thereof
shall be deemed to refer to the masculine, feminine, or neuter and to the
singular or plural as the identity of the person or persons may require for
proper interpretation of this Agreement.
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Software License Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the date set forth above.
"MACHINETALKER:" "KBR:"
MACHINETALKER, INC., XXXXXXX, XXXXX & ROOT SERVICES, INC.
a Delaware corporation
Name & title: Date: Name & title: Date:
Xxxxxx X. Xxxxx, President
Address and Facsimile Address and Facsimile
Number for Notice: Number for Notice:
MachineTalker, Inc. Xxxxxxx, Xxxxx & Root Services, Inc.
000 Xx Xx Xxxx Xxxxxx Attn: Procurement
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (____)
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Software License Agreement
EXHIBIT 7
Purchase Order Terms and Conditions
Agreement No. CA-0006 12/29/2004 6:21 PM Page 1 of 11 EXHIBIT 7
- Purchase Order Terms & Conditions
EXHIBIT 7
XXXXXXX XXXXX & ROOT, SERVICES INC. (KBR)
PURCHASE ORDER TERMS AND CONDITIONS
(To be made a part of any future purchase of Licensed Products)
1. DEFINITIONS. These Terms and Conditions, together with the Agreement and any
special terms and conditions, and all attachments, exhibits and documents
expressly referenced in the Purchase Order, shall collectively constitute the
"Purchase Order". "Buyer", "Seller", and "Owner" (if any) are identified and
defined as set forth within this Purchase Order. This Purchase Order is entered
into between Buyer and Seller, who may be referred to individually herein as a
"party" or collectively as the "parties". Seller agrees to sell, and Buyer
agrees to buy, the goods, work and/or services described in and furnished under
this Purchase Order (the "Goods"), under the terms and conditions set forth
herein. The "Buyer Indemnitees" as referred to herein shall mean Buyer, any
Owner, any assignee, their parents, subsidiaries, affiliates, partners,
co-participants, investors, and lenders, and the respective officers, directors,
employees, consultants, contractors, invitees, agents, representatives,
successors, heirs, and insurers of each such entity at all tiers. Seller is
acting in all respects as an independent contractor under this Purchase Order.
2. EFFECTIVE DATE. This Purchase Order becomes effective when (a) executed by
both the Buyer and Seller; or (b) when Seller commences performance; or (c) when
Seller tenders the Goods to Buyer, whichever event occurs earliest.
3. INTEGRATION AND CONTROLLING TERMS. This Purchase Order constitutes the entire
agreement between Buyer and Seller with respect to the Goods, superseding all
quotations, proposals, communications, negotiations and counter-proposals. This
Purchase Order expressly excludes any quotations or proposal of Seller unless
such proposal is specifically referenced and incorporated herein. Any different
or additional terms and conditions by Seller in Seller's acceptance or during
Seller's performance of this Purchase Order, including any terms and conditions
contained on any of Seller's quotations, proposals, or forms, shall be null and
void and of no effect on the parties. Electronic commerce transactions between
Buyer and Seller pertaining to this Purchase Order will be solely governed by
these terms and conditions. Any terms and conditions on Seller's internet site
to which agreement by Buyer in any manner, whether through a online electronic
agreement, deemed implied by site use, or otherwise, is required in any manner
during performance of this Purchase Order, will be null and void and of no legal
effect on Buyer. If this Purchase Order has been issued by Buyer in response to
a proposal or offer by Seller, it is Buyer's intention that its counteroffer to
Seller will be governed solely by these terms and conditions and not by any of
Seller's terms or conditions which may be contained in its proposal or offer. If
Seller includes or attaches any different and/or additional terms or conditions
in Seller's executed acceptance of a Purchase Order issued by Buyer and proceeds
to commence performance or tender all or any part of the Goods without Buyer's
express acceptance of such different or additional terms or conditions, Seller
agrees that a binding contract will be formed solely upon Buyer's terms and
conditions, which contract will not include any of Seller's different and/or
additional terms or conditions. Seller's proposal or quotation is not included
as part of the Purchase Order unless expressly referenced herein as part of the
agreement.
4. ERRONEOUS OR CONFLICTING REQUIREMENTS. Upon Seller's discovery that any
provision of this Purchase Order may contain any error, omission or conflict
with any other provision contained herein, it is Seller's responsibility to give
Buyer immediate written notice of such for resolution by Buyer. If
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- Purchase Order Terms & Conditions
Seller proceeds with performance after discovery without notification to and
resolution by Buyer, then Seller assumes the risk of all resulting expenses,
costs and consequences incurred.
5. INSPECTION, EXPEDITING, AND DOCUMENTATION. Seller is fully responsible for
the timely, proper and accurate performance of this Purchase Order, including,
to the extent applicable, for the design, fabrication, manufacture, production,
construction, and shipment of the Goods, and for compliance with all terms,
conditions, specifications, drawings, and other written requirements of Buyer.
Buyer has the right to inspect and expedite the Goods at any stage of design,
fabrication, manufacture, storage, transit, and upon delivery to assure
compliance herewith. Seller will provide Buyer with all data, drawings,
specifications, test results, quality documentation, schedules and other
documents and information relating to the Goods. Notwithstanding any
specifications, data, requirements or other information provided by Buyer, it is
Seller's responsibility to request any additional documentation or information
from Buyer which Seller determines it may need for performance of this Purchase
Order, and Buyer will respond to the extent possible in a timely manner. Seller
will comply with Buyer's inspection and testing requirements, plans or
procedures set forth in this Purchase Order, and with other such instructions
and directions as may be provided by the authorized Buyer representative. No
inspection, waiving of inspection, review, approval, acceptance or provision of
any instructions, direction, information, drawings or data hereunder by or from
Buyer, or lack of such from Buyer, will constitute a waiver of, or relieve or
discharge Seller from, either expressly or by implication, Seller's
responsibilities and obligations under this Purchase Order.
6. TIME OF PERFORMANCE. SELLER ACKNOWLEDGES THAT THE TIME REQUIRED FOR
PERFORMANCE AND THE DELIVERY SCHEDULE SPECIFIED HEREIN ARE CRITICAL, MATERIAL
AND OF THE ESSENCE TO PERFORMANCE OF THIS PURCHASE ORDER FOR THE AVOIDANCE OF
SUBSTANTIAL LOSS TO BUYER, VARIOUS CONTRACTORS AND ANY OWNER . SELLER'S
UNEXCUSED FAILURE TO MEET THE DELIVERY SCHEDULE WITHOUT BUYER'S WRITTEN CONSENT
MAY CONSTITUTE A BREACH OF CONTRACT OR DEFAULT HEREUNDER. Any such consent by
Buyer, however, will not constitute a waiver of any provision herein but will
serve only to delay the delivery schedule. In the event of delay, or anticipated
delay, from any cause, including force majeure, Seller will immediately notify
Buyer in writing of the delay or anticipated delay, and its approximate
duration, and Seller will undertake to mitigate, shorten or make up the delay by
all reasonable and expeditious means. An event of "Force Majeure" under this
paragraph shall be an excused delay, provided Seller has provided timely written
notice of the occurrence of such event to Buyer. If possible, Seller agrees to
take all reasonable commercial efforts to reduce or mitigate the effects of such
delay. "Force Majeure" is defined as any act of God, flooding, fire, severe
storm, lightning, act of war, act of terrorism, or unforeseeable governmental
action, beyond the control of and not caused in any part by any fault of Seller,
but shall not include any power, supply, transportation or labor problems.
Buyer, at its option, may require or approve in writing a change in the delivery
schedule or progress requirements as established in this Purchase Order in
response to Seller's notice. If Seller fails to obtain the approval of Buyer for
any such change, and Seller fails for any reason to meet the delivery schedule,
progress requirements, or it becomes apparent that Seller will not for any
reason meet the schedule or progress milestones, Buyer may in such case, without
penalty, cancellation fee, restocking or other fee or charges, and without
prejudice to any other rights which it may have, cancel all or any part of the
Purchase Order and take any other action as Buyer may consider necessary or
desirable under the circumstances to avoid or minimize losses. Buyer may
backcharge Seller for all direct costs and expenses of any nature resulting from
Seller's unexcused nonperformance, delays or failure to meet the required
delivery schedule.
7. TITLE, SHIPMENT, AND RISK OF LOSS. Unless otherwise specified herein, title
to the Goods (and in the event that the Goods are made to order, then title to
all material, inventory and work in progress,
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- Purchase Order Terms & Conditions
design data, other documentation, and all contractual rights thereto) will vest
in Buyer (or Owner if Buyer is acting as Owner's agent) immediately upon
acceptance of the Goods by Buyer, payment by Buyer, or identification to this
Purchase Order, whichever first occurs. If Goods are made to order or the
Purchase Order otherwise specifies that title will vest in the Goods upon
identification to this Purchase Order, Seller will take action to segregate the
Goods and clearly label them as property of Buyer. In the event of cancellation
or termination of this Purchase Order, Buyer has the right to enter Seller's (or
Seller's agent's, contractor's or supplier's) premises during regular business
hours and take possession of any Goods, including any related drawings, records,
materials to be incorporated into the Goods, and equipment, for which Buyer has
paid Seller, provided to Seller by Buyer, or which have been identified to this
Purchase Order or created by Seller hereunder, and Buyer shall be obligated to
pay Seller for any unpaid portion of the Goods or equipment of which Buyer takes
possession. Seller warrants free and clear title to the Goods, free and clear
from any and all liens, claims, restrictions, reservations, security interests
and encumbrances. If applicable, Seller is responsible for properly and
carefully preparing, labeling, packing and shipping the Goods, at its expense
unless otherwise specified herein, and providing all required shipping
documentation. In the shipping process, Seller will comply with all laws and
regulations applicable to the Goods in addition to any requirements or
instructions of Buyer as may be specified in this Purchase Order or otherwise in
writing pertaining thereto. Irrespective of vesting of title and any other
provision herein to the contrary, Seller will bear the risk of loss and damage,
and will insure or self-insure for the benefit of Seller, Buyer, and any Owner,
the Goods in its care, custody and control, including free issue material
supplied to Seller for incorporation into, or work in conjunction with, the
Goods accordance with the provisions of this Purchase Order. Should any loss or
damage occur to the Goods prior to acceptance by Buyer, Buyer at its option may
cancel this Purchase Order without any cancellation fee, charge, penalty, or
liability, and any amounts paid by Buyer for such Goods shall be refunded in
full to Buyer. Should any loss or damage occur to any free-issue materials
provided to Seller, in addition to Buyer's right to cancel this Purchase Order,
Seller shall either, at Buyer's option, immediately replace such materials with
identical materials in order to meet its performance obligations hereunder, or
reimburse Buyer for the loss, including any necessary additional expenses and
costs which may be incurred resulting from such loss. Upon request, Seller shall
provide adequate insurance coverage, naming Buyer (and if applicable at Buyer's
request, any Owner or other person) as additional insured, for its obligations
under this Paragraph.
8. CONFORMING GOODS AND ACCEPTANCE. The Goods will conform to the description,
data, drawings, plans, specifications, performance or operation criteria (if
applicable), any sample, and other requirements of Buyer provided to Seller. The
Goods will meet the standards set forth in Paragraph 9 below. Seller will not
make any modification, change, or substitution, in whole or in part, without the
prior written approval of Buyer. If required by Buyer, Seller will supply
satisfactory evidence of the origin, composition, manufacture, kind and quality
of the Goods. Prior to shipment, Seller will carefully inspect, and if
applicable test, the Goods for conformance to the requirements of this Purchase
Order. If the words "or equal" are used in this Purchase Order, proposed equals
must be approved in writing in advance by Buyer. Seller will not ship more or
less than the quantity specified without the prior written approval of Buyer.
Upon delivery of the Goods or in any other location or time as may be specified
herein, Buyer may conduct a visual inspection of the Goods in accordance with
its standard procedures and may accept or reject the Goods, in whole or in part,
provided that Buyer reserves all rights provided for herein to reject any Goods,
in whole or in part, at a later time upon discovery of a latent defect or
non-compliance not apparent by such normal visual inspection. If Goods received
do not conform to those ordered, or if a different quantity is shipped, Buyer
may reject such shipment in whole or in part by giving notice thereof to Seller,
and may cancel this Purchase Order. Seller will remove any rejected Goods at
Seller's expense within ten (10) working days after notice. If any Goods are
rejected by Buyer, Seller will not ship any replacement Goods without the prior
written approval of and in accordance with the instructions provided by Buyer.
For any incorrect quantity, damaged, defective, non-conforming, or rejected
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- Purchase Order Terms & Conditions
Goods, Buyer may cancel this Purchase Order in whole or in part without any
obligation to pay a cancellation fee or other fee, charge or penalty, and return
the Goods at Seller's expense for full refund or credit to Buyer's account, at
Buyer's option.
9. WARRANTY. Seller warrants to Buyer that the Goods furnished under this
Purchase Order, whether manufactured, fabricated, or otherwise produced or
provided by Seller or others, will be (a) new, (b) of the latest design or model
conforming to Buyer requirements, (c) conform to the descriptions, data,
drawings, plans, specifications, any performance criteria, sample if any, and
other requirements specified herein or provided by Buyer to Seller; (d) be of
merchantable quality, (e) if specified in this Purchase Order, fit for the
purpose(s) intended; (f) conform with all applicable laws, ordinances, codes and
regulations, (g) be of the highest quality; and (h) free from defects in
materials, performance, operation, and workmanship. The Goods will be warranted
hereunder, as may be applicable, for a period of one (1) year after the date of
acceptance of the facility or the project by Owner, or twenty-four (24) months
from date of delivery to and acceptance by Buyer, whichever period expires
earlier. All work on the Goods or otherwise in the performance of this Purchase
Order will be done in a skilled manner and of the highest quality of
workmanship. Seller further warrants that the Goods will be of sufficient size
and capacity, and of correct materials, to properly perform any functions or
purpose specified in this Purchase Order.
10. WARRANTY REMEDIES. If, within the warranty period specified in Paragraph 9
above, Buyer discovers any defect, error, noncompliance, omission, operational
or performance deficiency, or breach of warranty set forth in Paragraph 9 above
as to the Goods, upon notice from Buyer, Seller will promptly repair, reperform,
or replace, without cost, the Goods in question (including bearing any necessary
removal, reinstallation, access, shipping, labor and other direct costs
resulting therefrom) in accordance with Buyer instructions. If Seller fails to
proceed promptly with and complete the repair, reperformance, or replacement of
the defective Goods, Buyer may repair, reperform, or replace the Goods and
charge all related direct costs (including labor and access costs) to Seller
without voiding the warranties herein, and without Buyer waiving any other
rights or remedies it may have under this Purchase Order. Such repair,
reperformance, or replacement will be rewarranted for a period of twelve (12)
months from the date of its acceptance by Buyer or Owner. If Buyer determines,
for any reason, that the remedies provided for herein are not adequate or
feasible, Buyer may elect to have such Goods removed at Seller's expense and any
portion of the purchase price paid refunded in full. Any Owner or assignee of
this Purchase Order as well as Buyer will have the benefit of the foregoing
warranty and warranty remedies in Paragraphs 9 and 10 herein, and such rights
and remedies are in addition to any other rights or remedies provided in law,
equity, or under this Purchase Order.
11. GOVERNING LAW AND COMPLIANCE WITH LAW. Unless otherwise specified in this
Purchase Order, this contract will be governed by the laws of the State of
Texas, U.S.A., exclusive of conflict of laws principles, in effect on the date
the Purchase Order becomes effective. In its performance under this Purchase
Order, Seller agrees to comply with all applicable laws, treaties, ordinances,
directives, orders, codes and regulations, and specifically with, but not
limited to, any import, export, health, safety, security and environmental laws,
treaties, ordinances, codes and regulations of any jurisdiction (whether
international, country, region, state, province, city, or local) where this
Purchase Order may be performed. NOTHING CONTAINED IN THIS PARAGRAPH WILL
OBLIGATE BUYER, OWNER, SELLER, OR ANY PERSON ACTING ON THEIR BEHALF, TO ENGAGE
IN ANY ACTION OR OMISSION TO ACT WHICH WOULD BE PROHIBITED BY OR PENALIZED UNDER
THE LAWS OR REGULATIONS OF THE UNITED STATES OF AMERICA OR ANY OF ITS STATES. If
applicable to this Purchase Order, Seller will specifically comply with the U.S.
Occupational Safety and Health Act (OSHA), and any State Plan approved
thereunder, and any regulation thereunder, including without limitation, OSHA
Hazard Communication Standard 29 CFR 1910.1200
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and 1926.59 regarding container labeling, warning notices, and Material Safety
Data Sheets. Upon Buyer written request, Seller will provide any certification
of compliance required by any federal, state, or local law, ordinance, code, or
regulation. SELLER AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE
BUYER INDEMNITEES FROM AND AGAINST ANY LOSS, COST (INCLUDING ATTORNEY FEES AND
COURT COSTS), CIVIL OR OTHER FINES AND PENALTIES, DAMAGE OR LIABILITY, ARISING
FROM OR ALLEGED TO ARISE FROM ANY VIOLATION, ALLEGED VIOLATION, OR FAILURE TO
COMPLY WITH, THE TERMS OF THIS PARAGRAPH BY SELLER OR ANY PERSON FOR WHOM SELLER
MAY BE RESPONSIBLE.
12. HAZARDOUS AND DANGEROUS GOODS. Seller is solely responsible for examining,
inspecting, identifying, and determining whether or not any Goods provided
hereunder (in whole or in part) constitute hazardous or dangerous goods, and to
notify Buyer of such prior to shipment of the Goods. Unless expressly exempted
by Buyer in writing in the Purchase Order, Seller is responsible to determine if
a Material Safety Data Sheet (MSDS) is required for the Goods, and if so, to
supply with the Goods all such required MSDS documentation and information. In
the event any Goods or any portion thereof are so identified by Seller, Seller
shall ensure that such Goods are properly handled, labeled, documented,
packaged, transported, and shipped in full compliance with any applicable legal
requirements, to the point of delivery to Buyer. It is the sole responsibility
of the Seller to ensure the compliance by all suppliers, manufacturers, and
subcontractors of all tiers with the provisions of this paragraph, including but
not limited to timely, complete and proper submittal of all required documents
and information. Seller shall inform Buyer in writing prior to shipment of any
precautionary measures that need to be taken with the Goods. SELLER AGREES TO
RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE BUYER INDEMNITEES FROM AND
AGAINST ANY LOSS, COST (INCLUDING ATTORNEY FEES AND COURT COSTS), CIVIL OR OTHER
FINES AND PENALTIES, DAMAGE OR LIABILITY, ARISING FROM OR ALLEGED TO ARISE FROM
ANY VIOLATION, ALLEGED VIOLATION, OR FAILURE TO COMPLY WITH, THE TERMS OF THIS
PARAGRAPH BY SELLER, ANY OF ITS LOWER TIER SUPPLIERS OR SUBCONTRACTORS, OR ANY
OTHER PERSON FOR WHOM SELLER MAY BE RESPONSIBLE HEREUNDER.
13. IMPORT AND EXPORT COMPLIANCE. SELLER AGREES THAT IT IS SOLELY RESPONSIBLE IN
ITS PERFORMANCE UNDER THIS PURCHASE ORDER FOR REQUIRED COMPLIANCE WITH THE
IMPORT AND EXPORT LAWS AND REGULATIONS OF THE UNITED STATES OF AMERICA, AND TO
THE EXTENT APPLICABLE TO THE PURCHASE ORDER, THE IMPORT AND EXPORT LAWS AND
REGULATIONS OF ANY OTHER JURISDICTION OR COUNTRY. If any import or export
control or compliance form is attached to this Purchase Order, including Buyer's
Request for Export Control Information, Seller will thoroughly and accurately
complete such form and return it within ten (10) days to Buyer. Seller
understands and acknowledges that (a) Buyer and Owner (if any), and their
contractors and agents, will rely on the information provided by Seller,
including making a determination whether any U.S. or foreign export or import
license is required for the export of the supplied materials to the country of
destination; (b) Seller is responsible for compliance with local import and
export control laws of any jurisdiction, and is responsible for compliance with
applicable U.S. re-export laws; and (c) Seller will be fully responsible for the
accuracy and completeness of import and export documentation prepared or
executed by Seller as part of Seller's performance of this Purchase Order,
including that required for the import of any materials used in the production
or manufacture of the Goods and of any documents prepared by Seller's employees,
contractors, agents and brokers. SELLER AGREES TO RELEASE, DEFEND, INDEMNIFY AND
HOLD HARMLESS THE BUYER INDEMNITEES FROM AND AGAINST ANY LOSS, COST (INCLUDING
ATTORNEY FEES AND COURT COSTS), CIVIL OR OTHER FINES AND PENALTIES, DAMAGE OR
LIABILITY, ARISING FROM OR ALLEGED TO ARISE FROM ANY VIOLATION, ALLEGED
VIOLATION, OR FAILURE TO COMPLY WITH,
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THE TERMS OF THIS PARAGRAPH BY SELLER OR ANY PERSON FOR WHOM SELLER MAY BE
RESPONSIBLE.
14. ASSIGNMENT AND NOTICE OF SELLER CHANGES. Seller will not sell, assign, or
transfer this Purchase Order, or any part hereof, or any performance or money
due hereunder, without the prior written consent of Buyer. If consent is
granted, any such assignment by Seller will not (a) increase or alter Buyer's
obligations, (b) diminish the rights of Buyer, or (c) relieve Seller of any of
its obligations under this Purchase Order. Buyer reserves the right to assign
this Purchase Order, in whole or in part. Seller will give Buyer or any Owner
prompt written notice of any adverse material change in its financial standing
(including any prospective bankruptcy, reorganization, insolvency, liquidation,
dissolution or assignment for the benefit of any creditor), ownership or
organization or any other operational change which may affect its performance
under the Purchase Order, including in the manufacture or production of the
Goods. In the event of any adverse material change, Buyer reserves the right to
cancel or terminate this Purchase Order without penalty or further obligation
other than to pay Seller for any completed and satisfactory performance to the
date of such cancellation or termination.
15. CANCELLATION. Buyer has the right at any time to cancel all or any separable
part of this Purchase Order by written notice. No cancellation, fee, charge or
payment will be owed by Buyer to Seller, and Seller will be owed only for the
direct costs of any completed and satisfactory performance to the date of
cancellation, and, if any portion of the Goods will be delivered to Buyer,
Seller shall also be reimbursed any direct and necessary costs incurred to
preserve, protect, store, and ship such Goods to the point of delivery to Buyer.
At the time of any cancellation by Buyer, Seller will immediately discontinue
all work pertaining to the Purchase Order, including not placing additional
purchase orders or making any other commitment, and canceling forthwith any
existing purchase orders and commitments on the best possible terms. Seller will
preserve and protect the Goods on hand, work in progress, supplier data, and
completed work, both in its own and in its suppliers' facilities, in accordance
with Buyer's instructions. Buyer has the right to enter Seller's (or Seller's
agent's, contractor's or supplier's) premises during regular business hours and
take possession of any Goods, including any related drawings, records, materials
to be incorporated into the Goods, and equipment, for which Buyer has paid
Seller, provided to Seller, or which have been identified to this Purchase Order
or created by Seller hereunder, and Buyer shall be only obligated to pay Seller
for any unpaid portion of the Goods of which Buyer takes possession.
16. CHANGES IN THE GOODS. Seller will make no modification, change,
substitution, or revision without Buyer's prior written consent.
(a) Buyer has the right to make changes in the character or quantity of
the Goods, in the manner or time of performance of this Purchase Order, or
otherwise, by written notice to Seller. Changes will be in writing and signed by
a duly authorized representative of Buyer. Seller will respond to Buyer in
writing within five (5) business days of receipt either accepting the change,
with any proposed adjustment in price or schedule, or rejecting the change if
Seller is unable to comply. If Seller fails to respond within such period, such
change will be deemed accepted and an equitable adjustment in the price and time
of performance will be made by Buyer if any change results in a reasonably
documented decrease or increase in Seller's cost or time of performance. If
Seller rejects the change, Buyer may cancel this Purchase Order as set forth in
Paragraph 15 above.
(b) Should Seller request any change from Buyer, Seller shall place
such request in writing, with all reasonable supporting documentation, and
submit to Buyer. If Seller's request is complete, Buyer will respond
Agreement No. CA-0006 12/30/2004 10:56 AM Page 7 of 11 EXHIBIT 7
- Purchase Order Terms & Conditions
in writing as soon as possible concerning acceptance or rejection of such
change. Seller will not discontinue performance pending Buyer's decision without
the prior written consent of Buyer. No claim by Seller for any change will be
considered unless submitted to Buyer in writing within ten (10) days after the
occurrence of the event upon which such change is based.
17. INDEMNIFICATION; CONSEQUENTIAL DAMAGES.
(A) MACHINETALKER AGREES TO INDEMNIFY AND HOLD KBR HARMLESS FROM ANY LOSS,
ACTION, OR CLAIM ARISING OUT OF ANY PRODUCT DEFECTS, PROVIDED THAT KBR GIVES
MACHINETALKER NOTICE OF ANY SUCH LOSS OR CLAIM WITHIN 30 DAYS OF THE DATE THAT
KBR IS MADE AWARE OF THE CLAIM. KBR AGREES TO USE BEST EFFORTS TO ASSIST
MACHINETALKER IN ANY SUCH DEFENSE TO THE EXTENT REASONABLE AND PRACTICABLE.
(B) KBR AGREES TO INDEMNIFY AND HOLD MACHINETALKER HARMLESS FROM ANY LOSS OR
CLAIM RELATED TO THE NEGLIGENCE OF KBR, ITS AGENTS OR EMPLOYEES REGARDING THE
INSTALLATION, USE, SALE OR SERVICING OF PRODUCTS OR ARISING OUT OF ANY
REPRESENTATION OR WARRANTY MADE BY KBR, ITS AGENTS, OR EMPLOYEES WHERE SUCH
REPRESENTATION EXCEEDS MACHINETALKER'S LIMITED WARRANTY IF SUCH LOSS OR CLAIM IS
EXCLUSIVE OF MACHINETALKER NEGLIGENCE, PROVIDED THAT MACHINETALKER GIVES KBR
NOTICE OF ANY SUCH LOSS OR CLAIM WITHIN 30 DAYS OF THE DATE THAT MACHINETALKER
IS MADE AWARE OF THE CLAIM. MACHINETALKER AGREES TO USE BEST EFFORTS TO ASSIST
KBR IN ANY SUCH DEFENSE TO THE EXTENT REASONABLE AND PRACTICABLE.
In the event that either Party is entitled to claim damages from the other Party
subsequent to an action arising under article 17, above, such liability shall be
limited to:
1) Damages for bodily injury (including death) and damage to real
property and tangible personal property; and
2) The amount of any other actual direct damages, up to the charges (if
recurring, 12 month's charges apply) for the Product that is the subject of the
claim.
In no event shall either party be liable to the other for:
A) loss of, or damage to, records or data; or
B) special, incidental, or indirect damages or any consequential
economic damages; or
C) lost profits, business, revenue, or anticipated savings.
All indemnities are subject to the limitations and exclusions elsewhere in this
Agreement.
NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, KBR'S MAXIMUM
LIABILITY TO MACHINETALKER SHALL NOT EXCEED THE AMOUNT OF $600,000 UNDER ANY
CIRCUMSTANCES, INCLUSIVE OF ATTORNEYS' FEES, COSTS, AND EXPENSES, FOR ANY CLAIM
ARISING FROM OR RELATED TO THE AGREEMENT OR TO THE SUBJECT MATTER OF THE
AGREEMENT. SUCH CLAIMS MIGHT INCLUDE BUT ARE NOT LIMITED TO CLAIMS FOR BREACH OF
CONTRACT.
18. TAXES. Unless otherwise provided for in this Purchase Order, Seller is
responsible for payment of, and the compensation set forth herein includes, all
sales, use, excise, value-added, goods and services, business (franchise or
privilege), and other such taxes, any taxes imposed on Seller which are based on
revenue, income, net income, net assets, net worth, or capital and any taxes
imposed in lieu thereof, and all duties, fees, levies, charges or other
assessments of whatever nature imposed by governing authorities or any
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- Purchase Order Terms & Conditions
duties, fees, levies, charges or other assessments of whatever nature imposed by
governing authorities or any jurisdiction applicable in connection with
performance under this Purchase Order. Seller accepts sole responsibility and
liability for the payment of any and all contributions or taxes for unemployment
insurance, social security payments, or other assessments for those persons
performing work for Seller hereunder. If it is ever determined that any tax
included in the price paid by Buyer was not required to be paid, Seller agrees
to refund promptly such amount to Buyer. Seller will release, defend, indemnify,
and hold the Buyer Indemnitees harmless from and against any fines, penalties,
interest, costs (including attorneys fees and court costs), charges, fees,
losses, damages or liabilities, arising from, alleged to arise from, or in any
way associated with Seller's failure to comply with the terms of this Paragraph.
19. CONFIDENTIALITY. All data, designs, documents, drawings, specifications,
communications and other information, revealed or disclosed in any form or
manner to Seller by Buyer (whether written, oral, electronic, visual, graphic,
photographic, observational, or otherwise), including any documents or other
tangible items supplied, or produced or created by Seller for Buyer hereunder,
or any information or item provided by any Owner (collectively defined as "Buyer
Information") are proprietary and confidential to Buyer and will be used solely
by Seller for purposes of performing this Purchase Order. All such Information
will be treated and protected by Seller as confidential, and will not be
disclosed to any third party without the prior written consent of Buyer and may
be disclosed within Seller's organization only on a need-to-know basis. Buyer
may require Seller's employees, contractors, suppliers and other Seller
personnel involved in the performance of this Purchase Order to execute an
individual confidentiality agreement prior to any disclosure. The provisions
protecting Buyer Information in any separate confidentiality, secrecy, or
nondisclosure agreement heretofore executed by Seller in connection with Buyer's
or Owner's business, this Purchase Order, or any other contract pertaining to
the Goods, are hereby expressly incorporated within this Purchase Order, and
these provisions are in addition to such agreement. Upon request of Buyer,
Seller will immediately return to Buyer any Buyer Information provided, either
upon demand, or upon completion of the warranty period hereunder, including all
copies made by Seller.
20. PUBLICITY. Seller will not publicize, disclose, or discuss the existence,
content, or scope (whether generalities or details) of this Purchase Order, make
any reference to Buyer or Owner (if any), the business of either, or the project
for which this Purchase Order is intended, to any third party by any means, and
through any medium (including but not limited to marketing materials,
advertising, internet or web site references, photographs, articles, press
releases or interviews, speeches or programs) without obtaining the prior
written consent of Buyer. Seller shall not use Buyer's, any Owner's, or the
project name as a reference in any manner without Buyer's express prior consent.
21. PAYMENTS, LIENS, RIGHT TO SET OFF AND BACKCHARGES. Seller agrees to keep the
project, premises and other property of Buyer, any Owner, and any other person,
free and clear from any and all claims, liens, restrictions, reservations,
security interests and encumbrances arising from this Purchase Order, Seller's
performance or non-performance, or related to the Goods. To the maximum extent
allowed by law, Seller agrees to release, defend, indemnify, and hold harmless
the Buyer Indemnitees from and against any and all laborers', materialmen's,
mechanic's, subcontractors, or any other liens, claims, restrictions,
reservations, security interests and encumbrances arising from, alleged to arise
from, or in any way arising from this Purchase Order, Seller's performance or
nonperformance, or related to the Goods. Seller agrees that any payment made by
Buyer constitutes trust funds intended for the benefit of any contractors,
suppliers and laborers. At any time, if Seller fails to make any payment to any
of its contractors, suppliers and laborers, Buyer may elect to pay such
beneficiaries directly or by issuance of joint checks, or take any other action
required to prevent imposition of a lien. Regardless of the payment terms in
this Purchase Order, Buyer's
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- Purchase Order Terms & Conditions
obligation to pay the purchase price is conditioned upon (a) receipt of
completed, non-defective conforming Goods; (b) receipt and acceptance by Buyer
of Seller's accurate and properly completed invoice accompanied by satisfactory
supporting documentation; and (c) compliance by Seller with all terms and
conditions of this Purchase Order. Seller agrees to pay promptly when due all
bills for labor, material, equipment or services in connection with the Goods.
If such bills are not promptly paid by Seller when due, Buyer may pay them and
Seller will immediately reimburse Buyer therefore. Buyer may at its discretion
set off any funds owed by Seller against any other amounts due to Seller under
any other contract with Buyer, Owner, or any affiliate of either. Seller waives
all rights of lien against the premises, facilities, equipment and other
property of Buyer and any Owner. Any sums due Seller hereunder may be applied by
Buyer as a set off against any sums owed by Seller to Buyer or any of its
affiliates or against any claims of third parties against Buyer arising from
Seller's performance, breach or default, hereunder, whether under this or any
other purchase order or other contract. At its sole discretion, Buyer may
withhold from payments to be made to Seller amounts legally required to be
withheld from such payments and remitted to the taxing authority of any
jurisdiction relevant to the transaction. Upon prior notice to Seller and
Seller's failure to cure within the period of time contained therein, Buyer
reserves the right to backcharge Seller for any losses, damages, claims, costs
and expenses incurred resulting from Seller's breach of any provision of this
Purchase Order. Buyer may withhold or set-off any payment due under this or any
other contract with Seller or any of its affiliates in order to recover such
backcharged amounts.
22. SUBCONTRACTORS, SUBVENDORS AND SUBSUPPLIERS. Buyer reserves the right to
approve or disapprove any subcontractors, subvendors, or subsuppliers proposed
by Seller to be involved in Seller's implementation of or performance under this
Purchase Order. Prior to entering into this Purchase Order, Seller will submit a
listing of all such proposed subcontractors, subsuppliers, or subvendors for
review and approval by Buyer. Seller agrees that Buyer has the right to contact
or visit any of Seller's subcontractors, subvendors, or subsuppliers directly to
confirm delivery commitments or the origin, composition, manufacture, kind,
quantity, or quality of any Goods provided thereunder. Any approval by Buyer
will not constitute a waiver of any term or condition hereunder, at law, or in
equity, nor relieve Seller of any obligation herein. Seller will ensure that
terms and conditions substantially similar to those in this Purchase Order are
contained in any contract issued to any subcontractor, subsupplier or subvendor
for any goods, materials, equipment, services, work or other items to be
provided under this Purchase Order. Upon request, Seller agrees to submit to
Buyer copies of any contract with any subcontractor, subvendor, or subsupplier
(with pricing deleted) for any item procured pertaining to this Purchase Order.
23. INTELLECTUAL PROPERTY. If applicable to this Purchase Order, any customized
or made-to-order Goods which are first conceived, designed, created, developed,
fabricated, or manufactured by Seller under this Purchase Order (whether
detailed or conceptual), and in whatever form, including but not limited to
designs, manufactured items, or developed software and any and all related data,
drawings, documents and specifications ("Custom Goods"), are the sole property
of Buyer, or any Owner or other assignee (if so designated in the Purchase Order
or upon request of the Buyer), with title to such vesting upon identification to
this Purchase Order. Such Custom Goods and any and all related data, drawings,
documents, and specifications will be considered and protected by Seller as
"Buyer Information" as set forth in Paragraph 19 hereunder. Seller will turn
over all such Custom Goods and any related data, drawings, documents and
specifications to Buyer or any Owner, including copies thereof, at no additional
charge, at the expiration date of the warranty period, or earlier as may be
requested in writing by Buyer . Any proprietary designs, know-how, software,
development tools, processes, source code, programs, or systems owned or
controlled by Seller prior to the date of this Purchase Order which are
incorporated or embedded into the Custom Goods ("Seller Intellectual Property")
shall remain the intellectual property of Seller, and Seller agrees to grant and
does herein grant to Buyer and any Owner or their assignees a non-exclusive,
worldwide, transferable, fully-paid and
Agreement No. CA-0006 12/29/2004 6:21 PM Page 10 of 11 EXHIBIT 7
- Purchase Order Terms & Conditions
perpetual license to use the Seller Intellectual Property in connection with use
of the Custom Goods. Except for any Seller Intellectual Property, Seller shall
not retain any rights to the Custom Goods, in whole or in part. Seller warrants,
represents and covenants that the design, fabrication, manufacture, production,
sale, distribution and intended use of the Custom Work and the Goods do not
infringe directly or indirectly, in whole or in part, any patent, copyright,
trade secret, trademark, trade name, or other intellectual property right of any
third party. Seller agrees to release, defend, protect, indemnify and hold the
Buyer Indemnitees harmless from and against any and all costs (including
attorney fees and court costs), expenses, fines, penalties, losses, damages, and
liabilities arising out of any alleged or actual patent, copyright, trade
secret, trademark, trade name, or other intellectual property right infringement
or other claim, demand or action made by any third party arising from or related
to the design, fabrication, manufacture, production, sale, distribution or use
of the Goods or any Custom Goods , however Seller will not be responsible to the
extent of any negligence or fault on the part of any Buyer Indemnitee as may be
finally determined by a court or arbitrator. At Buyer's request, Seller agrees
to execute such additional documents as may be required by Buyer to confirm the
provisions of this Paragraph including legal title in and to the Custom Goods.
The provisions of this Paragraph 23 shall survive the expiration, cancellation
or termination of this Purchase Order.
24. DOCUMENTATION AND RIGHT OF AUDIT. Where Seller's invoice includes
compensation for work performed at a lump sum, unit rate or for changes in the
work, Seller will submit Seller's determination of units of work performed,
substantiated by documents satisfactory in form and content to Buyer. Upon
verification by Buyer of such documents, Buyer will advise Seller in writing of
either Buyer's acceptance of Seller's determination, or of Buyer's alternative
determination of such units. Where Seller's invoices include compensation for
work performed for a reimbursable price, all costs, expenses and other amounts
so invoiced will be substantiated and supported by documents satisfactory to and
verified by Buyer. Seller will maintain for a minimum period of five (5) years
after final payment has been made to Seller under this Purchase Order all
records and accounts pertaining to work performed hereunder. Seller agrees that
Buyer will have the right to audit, copy and inspect, or cause to have audited,
copied and inspected, Seller's records and accounts pertaining to performance
under this Purchase Order at all reasonable times during the course of
performance hereunder and for a minimum period of five (5) years after final
payment has been made to Seller, however, Buyer's rights will not extend to any
components of any lump sum amounts or unit rates.
25. DEFAULT AND TERMINATION FOR CAUSE. In the event of Seller's (a) actual or
anticipated breach of or default under any provision of this Purchase Order,
which has not been cured within a reasonable time after written notice of such
has been provided to Seller by Buyer; or (b) any organizational or operational
change as stated in Paragraph 14 adversely affecting, or which may adversely
affect, in Buyer's sole judgment and opinion, Seller's performance hereunder; or
(c) any actual or threatened bankruptcy, reorganization, receivership,
insolvency, making an assignment for the benefit of creditors, liquidation,
dissolution, or other financial or organizational instability, Buyer has the
right, in addition to any rights or remedies it may have in law, in equity, or
under this Purchase Order, to require that Seller provide acceptable documentary
or other appropriate assurances of performance, including a performance bond,
letter of credit, or other type of guarantee. Should Seller be unable or
unwilling to do so, Buyer has the right to immediately terminate this Purchase
Order for cause by written notice to Seller and Seller will not be entitled to
any cancellation or termination charge or other fee or penalty hereunder, nor
will Buyer be liable to pay any costs of cancellation. In such event, Buyer may
immediately take possession of all or any portion of the Goods, subject only to
an obligation to equitably compensate Seller for same, including for any
payments made by Seller for materials or other work incorporated into such
Goods. Upon termination by Buyer as a result of Seller's default hereunder,
Seller will be liable to and will immediately pay or reimburse Buyer for all
reasonable costs of any nature which may be incurred by Buyer to cover any
losses or expenses related to such default and to effect completion of
Agreement No. CA-0006 12/29/2004 6:21 PM Page 11 of 11 EXHIBIT 7
- Purchase Order Terms & Conditions
performance of this Purchase Order, and if Buyer does not elect to take
possession of any portion of the Goods, Seller shall also refund to Buyer any
payments made to Seller for design or other work and materials to be
incorporated into the Goods.
26. SITEWORK. If Seller performs any work or services on site related to this
Purchase Order or the Goods provided hereunder, Buyer's On-Site Services Terms
and Conditions will apply in addition to the provisions of this Purchase Order,
and are attached to and fully incorporated herein.
27. CLAIMS AND DISPUTE RESOLUTION. Seller will submit any claims or disputes
arising under this Purchase Order to Buyer in writing prior to Buyer making
final payment. Buyer's obligation to make final payment is conditioned upon
Seller's settlement and release of all claims or disputes. Seller agrees that
its failure to submit any claims or disputes in writing by such time will
constitute an express waiver by Seller of any legal or equitable rights with
respect to the subject matter of the claim or dispute. For any claims or
disputes arising under this Purchase Order, the parties agree to exert their
best efforts in good faith to try to resolve such issues through direct
negotiation between management. Seller agrees that any such issues that cannot
be resolved through direct negotiation within a reasonable time will be
submitted to binding arbitration. Arbitration proceedings will be conducted by
the American Arbitration Association ("AAA") in Houston, Texas, before a single
arbitrator, in accordance with the AAA Commercial Rules and Procedures. Each
party will bear its own expenses in any dispute resolution process or
proceeding. Notwithstanding the existence, filing, or pendency of any claim or
dispute under this Purchase Order or with Buyer or any Owner, Seller will
continue to fully perform its obligations hereunder and will not cease or delay
performance, fabrication or fail to make any shipment pending resolution of any
claim or dispute. Any award of the arbitrator may be enforced in any
jurisdiction.
EXHIBIT 8
Notice of KBR Invoice Procedures
Agreement No. CA-00062 12/29/2004 6:49 PM Page 1 of 1
EXHIBIT 8 - Notice of KBR Invoice Procedures
EXHIBIT 8
NOTICE OF KBR INVOICE PROCEDURES
--------------------------------------------------------------------------------
IMPORTANT! FAILURE TO FOLLOW THESE PROCEDURES MAY RESULT IN A DELAY OF PAYMENT
OR RETURN OF THE INVOICE TO THE SUBMITTER
--------------------------------------------------------------------------------
ALL INVOICES MUST BE ADDRESSED & DELIVERED TO:
-------------------------------------------------
Xxxxxxx Xxxxx & Root Services, Inc. Attn:
Procurement - Xxxxx Xxxxxxx
X.X. Xxx 00000
Xxxxxxxxx, XX 00000-0000
-------------------------------------------------
TO RECEIVE YOUR INVOICE MONIES YOU MUST INCLUDE THE FOLLOWING ON ALL INVOICES:
__ COMPANY NAME: MachineTalker, Inc.
__ VENDOR No.: (Applied for, Contact your SCA prior to first invoice)
__ FULL CONTRACT No. :CA-00062
*Invoices shall also reference as appropriate: Invoice number,
percentage of work complete, identify invoice as a "progress payment",
quantities shipped, descriptions, tag numbers, and pricing.
IMPORTANT NOTES:
You must send invoices to the above address in the above format. All invoices
sent to the Project Manager or work site, or to the address below, will be
returned! Invoices that do not include the above listed information will be
returned!
KBR will not consider an invoice as properly delivered for payment processing
unless submitted to the above address. Invoices shall not delivered to any other
address or location, or given to another KBR representative, except as
understood by the subcontractor/vendor that they do so at their own risk of loss
to the invoice.
KBR will not consider an invoice as properly delivered for payment processing
unless it includes on its face: The Company Name, The Company's Vendor No.:, The
Work Release No.:, and as applicable, Invoice number, percentage of work
complete, identify invoice as a "progress payment", quantities shipped,
descriptions, tag numbers, and pricing.
KBR will consider the date the invoice is physically received at the above
address as the official date of receipt to compute the payment due date.
Please contact the below immediately if your current invoicing system will not
support the above requirements. Questions concerning these invoice processing
procedures may be directed to:
[DO NOT SEND INVOICES TO THIS ADDRESS]
Xxxxxxx Xxxxx & Root Services, Inc.
ATTN: Procurement - Xxxxx Xxxxxxx
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
E-mail: Xxxxx.Xxxxxxx@Xxxxxxxxxxx.xxx
