EXHIBIT 10(pp)
CONTRACT BETWEEN
TRW SYSTEMS INTEGRATION GROUP and COMPUTERIZED THERMAL IMAGING, INC.
STRATEGIC SYSTEMS DIVISION 000 XXXXX XXXXX XXXXXX
POST OFFICE BOX 1310 LAKE OSWEGO, OR 97034
XXX XXXXXXXXXX, XXXXXXXXXX 00000-0000
CONTRACT NUMBER: TRW-96-002 TERMS: NET 30 DAYS
COST PLUS FEE CONTRACT
This Contract is entered into October 29, 1996 between TRW Inc., an Ohio
corporation, operating through its Systems Integration Group, Strategic Systems
Division, having an office at Xxx Xxxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter also
called "TRW" or "Seller") and Computerized Thermal Imaging, Inc. a Nevada
company (also called "CTI" or "Buyer").
WITNESSETH THAT:
In consideration of the mutual promises, covenants, and agreements herein set
forth, the Parties agree that the Seller shall furnish and deliver to the Buyer
all the goods, and perform all the services set forth for the consideration
stated herein. The rights and obligations of the Parties to this Contract shall
be subject to and governed by this Contract and other documents or
Specifications attached hereto or referenced herein. This Contract supersedes
any and all prior agreements of the parties, whether written or oral, concerning
the subject matter hereof.
This Contract shall not be varied in its terms or conditions by any oral
agreement or representation, or otherwise than by an instrument in writing of
even or subsequent date thereto, executed by both Seller and Buyer.
The article titles used herein are for convenience only and shall in no way be
construed as part of this Contract or as an indication of the meaning of the
particular section.
INDEX OF ARTICLES
ARTICLE
NO. ARTICLE TITLE PAGE
--- ------------- ----
I Definitions and Priority 2
II Limits of Agreement 3
III Scope of Work 3
IV Performance, Delivery Schedule and Termination 3
V Inspection and Acceptance 3
VI Estimated Cost and Fee * 4
VII Consideration and Payment 4
VIII Invoices and Remittance 4
IX Payment Terms 5
X Packaging and Delivery 5
XI Warranty 5
XII Limitation of Liability 6
XIII Indemnification 7
XIV Excused Performance 7
XV Insolvency of Buyer 7
XVI Default 7
XVII Assignment 8
INDEX OF ARTICLES (Continued)
ARTICLE
NO. ARTICLE TITLE PAGE
--- ------------- ----
XVIII Notices 8
XIX Governing Law - Arbitration 8
XX Taxes 9
XXI Contract Management 9
XXII Notice of Delay 9
XXIII Reports 9
XXIV Intellectual Property Rights & New Technology &
Data Rights * 10
XXV Patents Infringement 11
XXVI Changes 11
XXVII Modification and Waiver 12
XXVIII Severability 12
XXIX Counterparts 12
XXX Remedies 12
XXXI Proprietary Information and Xxx-Xxxxxxxxxx 00
XXXII System Integration Rights * 13
XXXIII Buyer Furnished Software and Property 13
*- These portions have been omitted under a request for confidential
treatment
ARTICLE I - DEFINITIONS AND PRIORITY
A. The following words and phrases shall have the meanings set forth below:
1. Contract: This Contract between TRW and CTI includes Appendix A -
Statement of Work, attached hereto and made a part hereof, as may be modified or
supplemented from time to time by agreement by the parties, and similar
schedules, work plans, or documents if approved by both parties from time to
time for performing the projects.
2. Estimated Cost: The amount within which it is agreed that the
Statement of Work is likely to be accomplished.
3. Fee: A compensation method which might be approved by the parties
from time to time for a portion of the Statement of Work by which Seller would
be paid an agreed dollar amount for full satisfaction regardless of the Cost
incurred, or Seller may be reimbursed for any Costs incurred allocable to the
appropriate job and paid as agreed amount in addition to Costs for full
satisfaction, for any specific statement of work for which the parties agree in
advance to be compensated on this basis.
4. Delivery Dates: The dates agreed in the Statement of Work for the
services to be performed at the Site.
5. Services: The services described in the Statement of Work to be
provided by TRW.
6. Site: The facility or other location identified in the Statement of
Work as the destination to which transportation is to be arranged for
deliverable items, and at which services are to be performed.
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7. Costs: The actual cost incurred by Seller to perform the work under
this Contract, including the cost of equipment provided and expenses incurred
plus the same burden rates for such costs as TRW charges on government
contracts.
8. Fee: The amount calculated as a percentage of Cost shall be referred
to as the "Fee." The compensation Seller is expected to be paid for the work
under this Contract is Cost reimbursement plus the Fee.
B. In case of any ambiguous inconsistencies between this Contract and the
Statement of Work or similar work orders, the text of this Contract shall
prevail.
C. This Contract definitizes and applies to work performed pursuant to the
Advanced Authorization to Proceed contained in CTI telefax dated October 10,
1996.
ARTICLE II - LIMITS OF AGREEMENT
The terms and conditions set forth herein constitute the complete and
exclusive statement of all of the terms of the agreement between TRW and CTI
with respect to this Contract, unless different or additional terms and
conditions are hereafter agreed in writing and made a part hereof by Contract
amendment. All prior representations and agreements of the parties are merged
herein and no agent, employee or representative of Seller has the authority to
bind Seller to any other affirmation, representation, promise or warranty
concerning the software or services furnished by Seller, and such are not
enforceable by Buyer unless contained herein. This Contract shall not be
varied, supplemented, qualified, or interpreted by any prior course of dealing
between the parties or by any usage of trade.
ARTICLE III - SCOPE OF WORK
Seller, as an independent Contractor and not as an agent of Buyer, shall,
in conformance with the terms and conditions more particularly set forth herein,
provide the necessary personnel, and services and do all things necessary or
incidental to furnish and deliver to the Buyer all requirements as set forth in
Appendix A-STATEMENT OF WORK, dated October 22, 1996, as revised or amended from
time to time.
ARTICLE IV - PERFORMANCE, DELIVERY SCHEDULE AND TERMINATION
The period of performance shall be from the effective date hereof and
continue for 48 months. The Seller shall provide the services, complete the
installation of the Buyer furnished materials as required by ARTICLE III- SCOPE
OF WORK within the period of performance. Seller shall request clarifications
or instructions from Buyer if the Statement of Work or instructions from Buyer
are not clear or are ambiguous as the project progresses. Either party may
terminate this contract for convenience by giving thirty (30 days) written
notice.
ARTICLE V - INSPECTION AND ACCEPTANCE
A. Final inspection and acceptance of services shall be made at the sites
designated by Buyer. All services covered by this Contract will be subject to
inspection and test by Buyer to the extent practicable at reasonable times and
places prior to acceptance. Any such inspection and test shall be performed in
such manner as to not delay or otherwise interfere with Seller's performance
hereunder.
B. Buyer shall promptly inspect services within 5 days of being notified by
Seller of their being tendered for inspection, and shall, within ten (10) days
after such inspection, give written notice to Seller of any claim that the goods
or services do not conform with the terms of this Contract. If Buyer fails to
inspect services called for above, Buyer will be held to have accepted the goods
or services with all defects that inspection would have revealed, subject to
Seller's obligations under ARTICLE XI, and to have waived all rights Buyer may
have had to revoke
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acceptance after said ten (10) day period. Notwithstanding the foregoing, Buyer
may notify Seller of a reasonable delay and toll the inspection period.
C. Depot Operation. To be determined after approval of TRW's Logistics
Support Plan.
ARTICLE VI - ESTIMATED COST AND FEE
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
ARTICLE VII - CONSIDERATION AND PAYMENT
Seller shall submit invoices monthly identifying work performed, Costs
incurred and the applicable Fee, consisting of the total payable. At the end of
Seller's work required by the Contract, a final invoice containing all unpaid
Cost incurred and uninvoiced Fee, if any, shall be submitted and paid.
ARTICLE VIII - INVOICES AND REMITTANCE
A. Invoices for payments hereunder shall be submitted to the following
address:
Mr. Xxxxxxx Xxxxxx, President
Computerized Thermal Imaging, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
B. Remittance shall be made by check to: (if by U. S. Mail)
TRW Inc.
Accounts Receivable
Lock Box File No. 41818
Xxx Xxxxxxx, XX 00000-0000
C. Remittance shall be made by check to: (if sent by Commercial Express
Carrier)
TRW Inc.
000 Xxxxx Xxxxxxxxx
Xx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
(000) 000-0000
ARTICLE IX - PAYMENT TERMS
Payment terms are net thirty (30) days after date of Seller's invoice.
Seller preserves the right at any time to suspend credit or to change credit
terms provided herein, when the financial condition of Buyer reasonably so
warrants. In such case, in addition to any other remedies herein or by law
provided, cash payment or satisfactory security from Buyer may be required by
Seller before shipment, or the due date of payment by Buyer under any Contract
or order with Seller may be accelerated by Seller. Failure to pay invoices at
maturity date makes all subsequent invoices immediately due and payable,
irrespective of terms, and Seller may terminate work and/or withhold all
subsequent deliveries until the full account is settled.
ARTICLE X - PACKAGING AND DELIVERY
Packaging and packing of all items for delivery shall be in accordance with
good commercial practice and
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adequate to assure safe arrival at destination. The delivery point of all items
to be delivered by Seller hereunder shall be F. O. B. Origin.
ARTICLE XI - WARRANTY
A. Software
For six (6) months commencing upon the date software installation is
accepted by Buyer at the designated site, TRW warrants that the software
modified or developed by TRW, excluding defects existing at the time of
delivery to TRW in the coding of the software originating from any third
party, shall substantially conform to professional quality, standard industry
practices, the TRW Software Guidelines, and the purpose and requirements set
forth in Appendix A - STATEMENT OF WORK, or other document referencing the
software description. If any of the TRW modified or developed software fails
to comply with the warranty set forth in this paragraph, TRW shall make a
reasonable effort to correct the program errors either (a) without increase
to the Fee or Cost of the Contract or (b) without increase to the Fee but
with reimbursement of Costs, if Buyer's instructions were ambiguous and
unclear and Seller's action was reasonable. Any corrected software will be
warranted for the remainder of the original warranty period or thirty (30)
days, whichever is longer. Notwithstanding any other provision of this
ARTICLE XI, TRW does not warrant that software provided hereunder is free of
all errors or omissions. Further, TRW does not warrant that the functions
contained in the delivered software will meet Licensee's requirements or will
operate in combinations other than as specified by TRW, or that the operation
of the software will be uninterrupted or error free or that all program
defects can be corrected. Seller will transfer to Buyer the benefit of any
third party warranties to the extent allowable by the third parties.
B. Services
1. All services performed by TRW will be of professional quality and
conform to standard industry practices and be in accordance with the Statement
of Work, or other document specifying the particular purpose of the services
approved by the parties. Any services which are actually defective will be
re-performed with reasonable promptness, after written notification is received,
and if said notice is made promptly after discovery of such defect, and in no
event later than six (6) months from the date of acceptance thereof. In such
event, to perform any such re-work or transportation caused thereby, either (a)
no additional Fee or duplicated Cost shall be allowed, or (b) only Costs shall
be reimbursed if Buyer's instructions were ambiguous and Seller reasonably
provided the services. If services are to be performed pursuant to a software
warranty, the software warranty standard and conditions apply. Buyer shall
notify Seller in writing of any defect, furnish relevant information with
respect thereto.
2. In instances when re-performance of a defective service is
impractical, and at TRW's sole discretion, an equitable adjustment of the earned
Fee and Costs of the affected item may be offered in lieu of re-performing the
service.
C. ANY OTHER PROVISIONS OF THIS CONTRACT TO THE CONTRARY NOTWITHSTANDING, THIS
WARRANTY, EXCEPT AS TO TITLE, IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE,
WHETHER ARISING BY LAW, CUSTOM, CONDUCT OR USAGE OF TRADE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
(EXCEPT AS MAY BE ATTRIBUTABLE TO ARTICLES XIII, XXIV, XXV, OR XXXI), OR
PUNITIVE DAMAGES.
D. Deport Warranty - To be determined after approval of TRW's Logistics
Support Plan.
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ARTICLE XII - LIMITATION OF LIABILITY
Neither party in any event shall be liable for indirect, incidental,
special or consequential (except as may be attributable to ARTICLES XIII, XXIV,
XXV, OR XXXI) or punitive damages, including such liability for improper
disclosure or misuse by others of any data gathered or processed by the systems
delivered under this Contract. Seller shall not be liable for incorrect or
inappropriate responses or incorrect diagnosis resulting from the data gathering
or processing performed by the systems delivered under this contract. Seller's
liability for damages to Buyer on any claim, including negligence, for any loss
or damage resulting from the performance or breach thereof, or the design,
manufacture, sale, delivery, resale, installation, technical direction of
installation, inspection, repair, operation or use of any software, data, goods
or services covered by or furnished under this Contract, shall in no case exceed
the amount of fee paid to the Seller under this contract or $1,000,000,
whichever is less.
ARTICLE XIII - INDEMNIFICATION
To the extent that Seller's or Buyer's agents, employees or subcontractors
enter upon premises occupied by or under the control of the other party in the
course of the performance of this Contract, the parties shall take all necessary
precautions to prevent the occurrence of any injury (including death) to any
persons, or of any damage to any property arising out of acts or omissions of
such agents, employees or subcontractors, and except to the extent that any such
injury or damage is due solely and directly to the other party's gross
negligence or willful misconduct, shall indemnify the other party, its officers,
employees and agents, against any loss, claims, damages, liability, expense
(including reasonable attorney fees) and cause of action whatsoever arising out
of any act or omission of the party, its agents, or employees, and both parties
shall maintain such Public Liability, Property Damage and Employee's Liability
and Compensation Insurance as will protect the other party from any of said
risks and from any claims under any applicable Workmen's Compensation and
Occupation Disease Acts. Furthermore, each party agrees to hold harmless and
indemnify the other from any third-party claim against one party arising from
the other party's negligence or intentional misconduct.
ARTICLE XIV - EXCUSED PERFORMANCE
In addition to any excuse provided by applicable law, Seller shall be
excused from liability for non-delivery, delay in delivery, or delivery of non
conforming goods or services arising from any events beyond its control, whether
or not the events were foreseeable by either party when entering into the
Contract, specifically including, but not limited to, war, riot, strikes,
lockouts, labor disturbances, resignation or death of any of key personnel,
energy or material shortages, fire, flood, earthquake or other natural
catastrophe, Federal, State or Local government requirement or proscription,
breach of contract or other failure of a subcontractor to perform, or
impossibility, including practical impossibility, to perform the services called
for herein or to develop the software without going beyond the state of the art.
Unless expressly provided in writing herein to the contrary, Seller shall not be
deemed to have assumed the risk of any of the above circumstances. In such
event, Seller shall be entitled to compensation on an equitable basis for any
benefit received by Buyer in retaining non conforming software or utilizing non
conforming services.
ARTICLE XV - INSOLVENCY OF BUYER
If Buyer takes any action to make Seller believe Buyer may become bankrupt
or insolvent, ceases business, or to pay bills during the term of this Contract,
Seller may forthwith terminate this Contract upon written notice thereof to
Buyer. Such termination shall not prejudice Seller's rights to any amounts then
due under this Contract or effect any other rights Seller may have under
applicable provisions of controlling law.
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ARTICLE XVI - DEFAULT
A. An Event of Default on the part of either party shall exist if:
1. Such party fails to pay the other party any amount required to be paid
hereunder when due and payable;
2. Such party fails to perform any other material obligation required to
be performed by it under any provisions of this Contract, or fails to initiate
corrective action within thirty (30) days after receiving notice from the other
party that such performance has become due.
B. Subject to other provisions hereof which expressly limit the remedies
available hereunder, if an Event of Default, as defined in paragraph A above,
exists on the part of either party, then the other party may continue
performance and seek a resolution of any disputed performance according to
Article XIX, or the other party may terminate this Contract upon giving written
notice of termination and pursue any other remedies available at law or in
equity.
C. Failure by either party to insist upon strict performance of any provision
of this Contract by the other party shall not be deemed to be a waiver by such
party of its rights or remedies, or a waiver by it of any subsequent default by
the other party in the performance of or compliance with any of the terms of
this Contract.
ARTICLE XVII - ASSIGNMENT
A. Neither party shall, without the consent in writing of the other party
assign or transfer this Contract or the benefits or obligations thereof or any
part thereof to any other person other than a subsidiary wholly owned by the
party, provided that this shall not affect any right of TRW to assign, either
absolutely or by way of charge, any moneys due or to become due to it or which
may become payable to it under this Contract.
B. No assignment or transfer of any right or duty hereunder by either party
shall constitute a novation or otherwise release or relieve such party of its
obligations hereunder.
C. The provisions of this Agreement shall be binding upon and inure to the
benefits of Seller and Buyer and their respective successors and assigns. In
the event either party foresees a successor situation developing, the other
party shall be notified in writing. This provision shall not be deemed to
expand or otherwise affect the limitation on assignment and transfers set forth
above and no party is intended to or shall have any right or interest under this
Contract, except, as provided herein.
ARTICLE XVIII- NOTICES
Any notices required to be given hereunder shall be given in writing at the
address of each party herein set forth or to such other address as either party
may substitute by written notice to the other.
If to Buyer:
Mr. Xxxxxxx Xxxxxx, President
Computerized Thermal Imaging, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
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If to Seller:
TRW Inc.
Xxxx Xxxxxx Xxx 0000
Xxx Xxxxxxxxxx, XX 00000-0000
ATTENTION: Xxxxxxx X. Xxxxxxx, SBCA/200
ARTICLE XIX - GOVERNING LAW - ARBITRATION
All questions concerning the validity and operation of this Agreement and
the performance of the obligations imposed upon the parties hereunder shall be
governed by the laws of the State of California, United States of America.
Any dispute between the parties arising out of or related to this Contract
(or any Statement of Work or other document executed related to this Contract)
shall be resolved by binding arbitration held in Ogden, Utah, in accordance with
the rules and procedures of the American Arbitration Association ("AAA").
Either party may deliver to the other a written dispute notice setting forth a
description of the issue(s). Appropriate representatives of both parties will
negotiate in good faith within ten (10) days to resolve the dispute. If the
parties are unable to resolve the dispute within ten days, either party may
notify the AAA and the other party of a statement of claim to initiate
arbitration. The purpose of arbitration is to promptly resolve all disputes,
including any cost or fee dispute or resolution of any equitable adjustments or
determination of reasonable charges which may arise during the course of
continued performance, because the parties have agreed to identify work to be
performed as the term of the contract progresses and that all costs and charges
shall be reasonable. The AAA shall be the appointing and administrative
authority applying its supplemental and procedural rules unless the parties
agree on other procedures. If the parties cannot mutually select an arbitrator
reasonably acceptable to both parties with five (5) days of such notice, AAA
shall identify three independent candidates for selection as the sole
arbitrator, allowing each party an opportunity to strike one. The arbitrator
shall adhere to deadlines for a prompt resolution.
ARTICLE XX - TAXES
Any direct taxes (including stamp, and turnover taxes but excluding income
taxes), duties, fees, charges, or assessments of any nature levied by any
governmental authority in connection with the work of this Contract, whether
levied against Buyer or TRW, shall be for Buyer's account and shall be paid
directly by Buyer to the governmental authority concerned.
ARTICLE XXI - CONTRACT MANAGEMENT
A. Each party's Contract Manager for this Contract shall be designated in
writing. Either party may, by written notice to the other, change such Contract
Manager at any time. At the commencement of this Contract, Xxxxxxx Xxxxxx is the
Contract Manager for CTI, Xxxxxxx Xxxxxxx is the Contract Manager for TRW.
B. No request, notice, authorization, direction or order received by the
Seller shall be binding upon Seller, or serve as a basis for adjusting the
price, or other provision of the Contract unless issued or confirmed in writing
by the Buyer's named Contract Manager. Buyer's Contract Manager shall codify
into the Contract out of scope or over and above activities required by the
Buyer's Program or Technical Representatives. The Seller shall immediately
notify, in writing, the Buyers Contract Manager whenever a change request has
been received from a representative of Buyer other than the Contract Manager
which would affect the terms and conditions, estimated cost, fee, Statement of
Work or Schedules of this Contract.
C. Only TRW's designated Contract Manager or a more senior contracting
individual within the Company is authorized to contractually obligate TRW.
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ARTICLE XXII - NOTICE OF DELAY
Whenever any actual or potential event is delaying or threatening to delay
delivery of the equipment or performance of the services under this Contract,
Seller shall give expeditious notice thereof.
ARTICLE XXIII - REPORTS
The Seller shall furnish reports of cost incurred and the progress of
performance monthly. Cost reports shall be submitted within seven (7) days
after the close of TRW's accounting month. Progress reports shall be submitted
as of the end of each calendar month so as to reach Buyer by the 7th day of the
following month.
ARTICLE XXIV - INTELLECTUAL PROPERTY RIGHTS AND NEW TECHNOLOGY AND DATA RIGHTS
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
ARTICLE XXV- PATENT INFRINGEMENT
A. TRW shall indemnify Buyer against all actions, claims, demands, costs,
legal fees, charges, and expenses arising from or incurred by reason of any
infringement or alleged infringement of United States letters patent, design, or
copyright, by the use of any Intellectual Property supplied by TRW but such
indemnity shall not cover any use of the products other than for the purpose
indicated by or reasonably to be inferred from this Contract or to any use which
constitute an infringement due to the use of any such products or software in
association or combination with any other products not supplied by TRW under
such combination is designed by services of TRW.
B. In the event of any claim being made or action brought against Buyer
arising out of the matters referred to in this Article, TRW shall be promptly
notified thereof and may at its own expense conduct all negotiations for the
settlement of the same, and any litigation that may arise therefrom. Buyer
shall not, unless and until TRW shall have failed to take over the conduct of
the negotiations or litigation, make any admission which might be prejudicial
thereto. The conduct by TRW of such negotiations or litigation shall be
conditional upon TRW having first given to Buyer such reasonable security as
shall from time to time be required by Buyer to cover the amount ascertained or
agreed or estimated, as the case may be, of any compensation, damages, expenses,
and costs for which Buyer may become liable. Buyer shall, at the request of
TRW, afford all available assistance for the purpose of contesting any such
claim or action, and shall be repaid all reasonable expenses incurred in so
doing.
C. The foregoing indemnity shall not apply to software products thereof made
to the specification or design of Buyer, or to any claim of patent infringement
which is based upon the combination of any part of the products with other
equipment, except equipment acquired from TRW.
D. The foregoing states the entire liability of TRW with respect to
infringement of patents by the products or any part thereof or by operation
thereof.
ARTICLE XXVI - CHANGES
A. Any changes to this Contract after the effective date hereof which relate
to (i) the deletion of work, (ii) adding additional services, (iii) changing or
modifying work, or (iv) making other changes which do not materially alter the
scope of this Contract shall be made in accordance with the procedures set forth
in this ARTICLE XXVI.
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B. Either party hereto may, from time to time, and at any time during the term
hereof request a change, as defined in this Contract. (The party requesting the
change is hereinafter referred to as the "Requesting Party.") Requests for
changes or deletion shall be in writing, and shall be addressed and delivered to
the Notified Party. Such writing shall be identified as a "Contract Change
Request" (CCR), shall carry a sequential number for ease of tracking, shall set
forth in detail the nature of the change requested, and shall identify the item
or service to be changed.
C. When TRW is the Requesting Party, TRW shall submit a proposal for equitable
adjustment to the Contract Estimated Cost, schedule, or other affected Contract
provision. When the Requesting Party is CTI, a proposal for equitable
adjustment to the Contract will be submitted promptly after receipt of copies of
the CCR. The parties shall, as necessary, negotiate the change and establish
any equitable adjustment to the Contract.
D. If the parties decide to implement a change request, a Contract Change
Notice ("CCN") shall be prepared, which shall describe the change, delineate the
Estimated Cost, schedule, and other impacts of the change. Execution of a CCN by
both parties, shall constitute a modification hereof and shall be binding on
both parties hereto. TRW shall not proceed on any change until a CCN has been
issued.
E. Substitutions of products which are purchased items not manufactured by TRW
may be made by TRW without the consent of Buyer if such substitutes are of like
function and quality and of lower delivered cost.
XXVII - MODIFICATION AND WAIVER
No cancellation, modification, amendment, deletion, addition, or other
change in the Contract or any provision hereof, or waiver of any right or remedy
herein provided, shall be effective for any purpose unless specifically set
forth in a writing signed by the party to be bound thereby. No waiver of any
right or remedy in respect of any occurrence or event on one occasion shall be
deemed a waiver of such right or remedy in respect of such occurrence or event
on any other occasion.
XXVIII - SEVERABILITY
Any provision hereof prohibited by or unlawful or unenforceable under any
applicable law of any jurisdiction shall as to such jurisdiction be ineffective
without affecting any other provision of the Contract. To the full extent,
however, that the provisions of such applicable law may be waived, they are
hereby waived, to the end that the Contract be deemed to be a valid and binding
agreement enforceable in accordance with its terms.
XXIX - COUNTERPARTS
This Contract has been executed in several counterparts, each of which shall be
deemed to be an original, and all such counterparts together shall constitute
but one and the same instrument.
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XXX - REMEDIES
Unless otherwise expressly provided herein, the rights and remedies
hereunder are in addition to, and not in limitation of, other rights and
remedies under the Agreement, at law or in equity, and exercise of one right or
remedy shall not be deemed a waiver of any other right or remedy.
XXXI - PROPRIETARY INFORMATION AND NON-DISCLOSURE
A. During the term of this Contract, TRW and CTI, to the extent of each
party's contractual and lawful right to do so, shall exchange such proprietary
technical and other information as is reasonably required for each to perform
its obligations hereunder. The disclosing party without consent shall be liable
for special or consequential damages. TRW and CTI each agree to keep in
confidence and prevent the disclosure to any person(s) outside their respective
organizations or any person(s) within their organizations not having a need to
know, all information received from the other which is in writing and designated
by appropriate stamp or legend to be of a proprietary nature and to use such
information only in connection with their obligations under this Agreement;
provided, however, that neither party shall be liable for actual special or
consequential damages for disclosure or use of such data if the same is:
1. In the public domain at the time of disclosure, or is subsequently
made available to the general public without restriction by the disclosing
party;
2. Known to the receiving party at the time of disclosure without
restrictions on its use or independently developed by the receiving party, and
there is adequate documentation to demonstrate either condition;
3. Used or disclosed inadvertently despite the exercise of the same
degree of care that each party takes to preserve or safeguard its own
proprietary information;
4. Used or disclosed with the prior written approval of the
non-disclosing party;
5. Disclosed without restriction to the receiving party from a source
other than the disclosing party;
6. Used or disclosed after a period of three (3) years after the date of
receipt.
B. No sheet or page of any written material will be so labeled which is not,
in good faith, believed to contain Proprietary information. A recipient of
information hereunder will have no obligation with respect to any portion of any
written material which is not so labeled, or any information received orally
unless a written summary of such oral communication, specifically identifying
the item s of Proprietary information, is furnished to the recipient within
fifteen (15) days.
C. If any portion of a party's Proprietary information falls within any one of
the above exceptions, the remainder shall continue to be subject to the
foregoing prohibitions and restrictions.
D. To be determined.
XXXII - SYSTEM INTEGRATION RIGHTS
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
11
XXXIII - BUYER FURNISHED FACILITIES, SOFTWARE AND PROPERTY
A. Title to all facilities, software and property furnished to Seller by Buyer
(or Buyer's customer or Contractor) or paid for by Buyer shall remain with Buyer
(or Buyer's customer). Seller shall not alter or use such property for any
purpose other than that specified by Buyer without the prior written consent of
Buyer. Seller shall keep adequate records, which shall be made available to
Buyer upon request, and shall store protect, preserve, repair, and maintain such
property in accordance with sound industrial practice. In the event that
Buyer's property becomes lost or damaged through negligence or willful
misconduct by Seller, its employees, agents, or subcontractors, while in
Seller's possession, Seller agrees to replace (if lost or irreparable) or repair
such property, without increase to the Cost or Fee, at Seller's option. At the
completion of delivery of the goods and services ordered by Buyer in this
Contract for which Buyer's software or property were required, or the
termination of this Contract, Seller shall request disposition instructions for
all such Buyer's software and property, and for all source codes and tools and
documentation required to fully use the New Technologies, or the remainder
thereof. Seller agrees to make such software and property available to Buyer at
Buyer's request, in the manner requested by Buyer.
B. If the aforementioned Buyer-owned facilities, software or property are
increased or decreased, or do not remain available during the performance of
this Contract, or if any change is made in the terms and conditions under which
they are made available to the Seller, an equitable adjustment as may be
appropriate shall be made in the terms of this Contract.
C. CTI agrees to provide TRW with the items identified in the Statement of
Work.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Contract to be
effective as of the day and year first above written.
TRW Inc. Computerized Thermal Imaging, Inc.
Systems Integration Group
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
------------------- ---------------------
Xxxxxx X. Xxxxx Xxxxxxx Xxxxxx
Vice President and General Manager President
Strategic Systems Division
Date: 10/25/96 Date:
12
APPENDIX A
STATEMENT OF WORK
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
13
CONTRACT CHANGE NOTICE
Issued by: CONTRACT NO. TRW-96-002
CHANGE NOTICE NO. 001
Computerized Thermal Imaging, Inc.
515 Pocahontas EFFECTIVE DATE THIS CHANGE:
Ft. Xxxxxx, XX 00000 16 December 1996
Issued to:
TRW Inc.
Strategic Systems Division
Xxxx Xxxxxx Xxx 0000
Xxx Xxxxxxxxxx, XX 00000
In accordance with ARTICLE XXVI(D) Changes, TRW is hereby authorized under the
terms of this contract to begin the commercialization development and at least
one pilot installation, in accordance with the statement of work revision 1.0
dated 22 October 1996. The incremental funding of the contract is increased,
and ARTICLE VI(D) is modified as follows:
ARTICLE VI - ESTIMATED COST, AND FEE
D. Authorized funding to this Contract is $4,700,000, which is estimated to
cover the Cost and Fee for all work to be performed from 10 October 1996 (Letter
Contract) through 31 December 1997, subject to addition or deletion of services
of any magnitude or other changes according to Article XXVI Changes. In the
event the total funding available is insufficient to complete all work
authorized within the applicable period. Seller shall notify Buyer in writing
and shall not be obligated to perform any unfunded work until the authorized
funding is increased to the amount required to complete the work. In the event
the Contract is fully funded and the Estimated Cost in insufficient to complete
all work required by the Statement of Work, Seller shall notify Buyer in writing
and shall not be obligated to perform further work until the Estimated Cost and
authorized funding are increased to new values agreed by the parties.
All Terms, Conditions and Provisions of the original Subcontract, as amended,
remain unchanged, except as specifically noted herein.
Computerized Thermal Imaging, Inc.
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------
X.X. Xxxxxx
President & COO
DATE: 1/30/97
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