EXHIBIT 10.49
BDM INTERNATIONAL, INC.
PERFORMANCE BASED FIRM FIXED PRICE CONTRACT
INTRODUCTION
This Performance Based Firm Fixed Price Contract effective June 29, 1998 is made
by and between BDM INTERNATIONAL, INC., a wholly owned subsidiary of TRW, Inc
(hereinafter known as "BDM"), a Delaware corporation with offices at 0000 Xxxxx
Xxxxxx Xxxxx, XxXxxx, XX 00000 and Plasma-Therm (hereinafter known as
"Plasma-Therm"), a Florida corporation, with offices at 00000 00xx Xxxxxx Xxxxx,
Xx. Xxxxxxxxxx, XX. The work, defined in ATTACHMENT A--Statement of Services,
will be performed on a fixed price basis pursuant to task orders issued in
accordance with the following General Terms and Conditions, ATTACHMENT
A--Statement of Services, and ATTACHMENT B--Fees.
GENERAL TERMS AND CONDITIONS
1. GENERAL PERFORMANCE SPECIFICATIONS
BDM agrees, at Plasma-Therm's request, to provide services as identified in
ATTACHMENT A, attached hereto. Services performed under this Contract shall
commence upon receipt of specific task order(s) signed by an authorized
Plasma-Therm representative. Services performed shall be completed in
accordance with issued task orders and the terms and conditions of this
Contract. Services performed shall comply with all applicable federal,
state and local laws, and regulations.
2. NOTICE OF DELAYS
In the event BDM encounters or anticipates difficulty in meeting
performance or schedule requirements, or when it anticipates or encounters
difficulty in complying with the Contract performance schedule, or whenever
the BDM has knowledge that any actual or potential situation is delaying or
threatens to delay the timely performance of this Contract, BDM shall
notify Plasma-Therm's representative, in writing, giving pertinent details.
3. FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in
performance hereunder to the extent such delay or failure is caused by
fire, flood, explosion, war, strike, embargo, civil or military authority,
act of God, act or omission of carriers or similar causes beyond its
control ("force majeure conditions"). If any force majeure condition
occurs, the party delayed or unable to perform shall give immediate notice
to the other party.
4. PLACE OF PERFORMANCE
All services will be performed at Plasma's Therm's office located at 00000
00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx or BDM'S office located 0000
Xxxxx Xxxxxx Xxxxx XxXxxx, Xxxxxxxx 00000.
5. CHANGES
The services set forth in the Statement of Services (ATTACHMENT A) will be
performed under the direction of Plasma-Therm's Technical Representative.
When, in BDM's opinion, such direction constitutes a change to the
Contract, Plasma-Therm's Contractual Representative shall be immediately
notified in writing of any such change. Until Plasma Therm's Contractual
Representative authorized such change, in writing BDM shall perform in
accordance with the Contract as written.
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6. PRICE
The prices for the services rendered under this Contract will be as
negotiated for each task order according to the terms and conditions
specified in ATTACHMENT B of this Contract and are exclusive of all
Federal, State, and Local taxes applicable to the rendering of these
services.
7. PRICE/INVOICE AND PAYMENT
BDM shall invoice Plasma-Therm in accordance with line number 4 (Monthly
Earned Services Billing Schedule) as set forth in Attachment B Fees,
Schedule 2, the basis of work performed according to the schedule in
ATTACHMENT B. All invoices shall be due and payable within thirty (30)
calendar days of the date of invoice or when fees are considered due and
payable in accordance with Attachment B, Item #6 - Invoice Timing, except
as otherwise agreed. Balances that are overdue will be assessed a late
charge of 1.5% per month of the total invoice. All payments will be made in
US dollars. Payments of $10,000 or more shall be sent by a reliable
overnight delivery service or by electronic funds transfer.
Payment will be mailed to: BDM
Philadelphia National Bank
X.X. Xxx 0000-X-0000
Xxxxxxxxxxxx, XX 00000
Account No. 00013-10801
8. TECHNICAL AND CONTRACTUAL REPRESENTATIVES
The following authorized representatives are hereby designated for this
Contract:
BDM INTERNATIONAL, INC. PLASMA-THERM
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Technical: Xxxxx Xxxxxxxxxx Technical: Xxxxx Xxxxxx, CPA
Contractual: Xxxxx Xxxxxxx Contractual: Xxxxx Xxxxxx, CPA
9. CONTRACTUAL NOTIFICATIONS
All notices, requests or demands and other communications hereunder shall
be in writing and telecopied (with confirmation of receipt), delivered by
overnight delivery service or mailed to the intended recipient through the
U.S. Postal Service (registered or certified mail, return receipt
requested, postage and certification or registration prepaid) at the
telecopy number or address specified below. Notices shall be effective upon
receipt.
BDM International, Inc. Plasma-Therm, Inc.
0000 Xxxxx Xxxxxx Xxxxx 00000 00xx Xxxxxx Xxxxx
XxXxxx, XX 00000 Xx. Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Any party may change its address for the purpose of notice to any other
address by giving notice in accordance with the foregoing provisions.
10. WARRANTY
BDM shall warrant a 1:1 ratio of annual benefits realized to the payments
for professional services received as finalized by both parties in November
1998 as defined in Attachments A and B. At that time, BDM and Plasma-Therm
shall agree to the final schedule of fees, benefits, and benefit
timeframes. The warranty period begins at the time the 1:1 ratio benefits
are identified. The warranty period continues for a period of 12 months or
when the 1:1 ratio is realized, whichever is less. BDM is not responsible
for obsolescence that may result from changes in the client's requirements.
During the warranty period, BDM shall identify and help Plasma-Therm
realize additional benefits to ensure the 1:1 ratio is met.
None of the software owned or licensed by BDM, including software developed
by BDM under this Contract infringes upon any patent or copyright. BDM
shall pay all applicable royalties and other
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costs related to the use of any third party software following completion
of this project as well as, for the provision of services to Plasma- Therm
in connection with this Contract.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION ("WARRANTIES") BDM HEREBY
DISCLAIMS WITH RESPECT TO ALL SERVICES, SOFTWARE PRODUCTS, UPDATES OR OTHER
"DELIVERABLES" PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES.
INCLUDING ANY IMPLIED WARRANTIES OF MERCHATABILITY, TITLE OR FITNESS FOR A
PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR PERSONAL INJURY, OR PHYSICAL EQUIPMENT OR
PROPERTY DAMAGE EXCEPT PERSONAL INJURY, OR PHYSICAL EQUIPMENT OR PROPERTY
DAMAGE DIRECTLY CAUSED BY THE NEGLIGENCE OF EACH SUCH PARTY, ITS EMPLOYEES,
AGENTS, AND REPRESENTATIVES.
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, THE CUMULATIVE LIABILITY OF BDM
REGARDLESS OF THE FORM OF ACTION FOR ALL CLAIMS WHATSOEVER RELATED TO THIS
CONTRACT, INCLUDING, BUT NOT LIMITED TO, ANY CAUSE OF ACTION SOUNDING IN
CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF
ALL FEES PAID TO BDM BY PLASMA-THERM UNDER EACH PROGRAM OF THE CONTRACT
FROM WHERE THE CLAIM AROSE (E.G. SCHEDULE A, IS CONSIDERED AS ONE PROGRAM),
EXCLUSIVE OF REIMBURSED EXPENSES AND EQUIPMENT HARDWARE PLUS THIRD-PARTY
SOFTWARE CHARGES, UNDER THIS CONTRACT. THIS LIMITATION OF LIABILITY IS
INTENDED TO APPLY TO ALL CLAIMS OF PLASMA-THERM, WITHOUT REGARD TO WHICH
OTHER PROVISIONS OF THIS CONTRACT HAVE BEEN BREACHED OR HAVE PROVED
INEFFECTIVE.
12. CONSEQUENTIAL AND SPECIAL DAMAGES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE,
BUSINESS OPPORTUNITY, OR BUSINESS ADVANTAGE, LOSS OF USE, INTERRUPTION OF
BUSINESS, LOSS OF GOOD WILL, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION,
WORK STOPPAGE, ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH CLAIMS WITHOUT REGARD TO WHICH OTHER PROVISIONS OF THIS
CONTRACT HAVE BEEN BREACHED OR PROVEN INEFFECTIVE.
13. DISCLOSURE/CONFIDENTIALITY
During the performance of this Contract Plasma-Therm and BDM may exchange
information regarding the policies, procedures, systems, methods, costs, or
other proprietary or confidential information ("Confidential Information").
Plasma-Therm and BDM each agree to keep in confidence and prevent any
disclosure of the Confidential Information, to any person or persons
outside their respective organizations or any unauthorized person or
persons within such organizations, with the exception of subcontractors to
either party who agree in writing to be bound by these obligations of
confidentiality, for a period of three (3) years from termination of this
Contract. Confidential Information shall not include information which:
(a) is or becomes part of the public domain through no act or
omission of the receiving party;
(b) was in the receiving party's possession prior to the disclosure
and had not been obtained directly or indirectly from the
disclosing party;
(c) is lawfully disclosed to the receiving party by a third party
without restriction on disclosure;
(d) is independently developed by the receiving party without using
any of the Confidential Information of the other party; or
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(e) is disclosed by operation of law provided the non-disclosing
party has notice and opportunity to object.
Both BDM and Plasma-Therm agree that damages resulting from a disclosure of
Confidential Information are difficult to establish. Both agree that in the
event of a breach of the confidentiality provisions outlined in this
Section, the non-disclosing party shall be entitled to all available
remedies at law or in equity "including injunctive relief" or any breach of
these provisions regarding Confidential Information.
14. SITE ACCESS
Where any work under this Contract requires access to proprietary or
confidential material or secured facilities by BDM personnel, it shall be
the responsibility of BDM to comply with all Confidential Information
Provision.
15. ASSIGNMENT
Neither this Contract nor any interest herein may be assigned, in whole or
in part, by either party hereto without the prior written consent of the
other party, except each party may assign this Contract or any interest
herein, to an affiliated entity without the prior consent of the other or
in the event of a change and control of such party.
16. RELATIONSHIP OF PARTIES
Throughout the performance of this Contract and task orders issued under
it, BDM and Plasma-Therm are independent parties and nothing contained in
this Contract or any task orders issued hereunder shall be construed or
implied to create the relationship of principal and agent, or partners of
employer and employees or joint venturers between the parties. At no time
shall either party make any commitments or incur any charges or expenses
for, or in the name of, the other party without the prior written consent
of the other party.
17. INSURANCE
BDM shall procure and maintain the following types of insurance and
coverage during the term of this Contract:
TYPE OF INSURANCE MINIMUM AMOUNT
(a) Workmen's Compensation Statutory limits in accordance with the
requirements of the applicable laws of
the jurisdiction (State or Commonwealth)
in which work is to be performed.
(b) Employer's Liability
Bodily Injury By Accident $100,000 Each Accident
Bodily Injury By Disease $100,000 Policy Limit
Bodily Injury By Disease $100,000 Each Employee
(c) Commercial General Liability $1,000,000 Bodily Injury and Property Damage
includes coverage for contractual CSL Per Occurrence.
liability, coverage for the use of $1,000,000 Bodily Injury and Property Damage
independent contractors, products CSL Gen. Aggregate
and completed operations.
(d) Automobile Liability, including $1,000,000 Bodily Injury and Property Damage
coverage for owned, hired, leased, CSL Per Accident
rented, and non-owned vehicles.
All insurance evidenced by this Contract shall be with insurers licensed to
do business in the state(s) where the service is being performed.
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BDM shall promptly furnish, if requested by Plasma-Therm, certificates or
insurance providing proof of the foregoing insurance. BDM shall notify in
writing at least thirty (30) calendar days prior to cancellation of, or any
material change of such coverage.
18. OWNERSHIP/WORK PRODUCT
Notwithstanding any other provision in this Contract, BDM shall own all
right, title, and interest in and to all intellectual property, software,
documentation, data rights, notes, designs, specifications, drawings,
technology and associated intellectual property, which BDM owned prior to
entering into this Contract or which BDM or a BDM's consultant or
subcontractor developed outside the performance of this Contract which BDM
uses to perform this Contract (hereinafter "BDM Background IP"). To the
extent that the BDM Background IP is modified, changed, or improved outside
of or in connection with the performance of this Contract (hereinafter
"Modified BDM Background IP"), and BDM delivers or uses Modified BDM
Background IP to perform this Contract, BDM shall own all right, title, and
interest in and to such Modified BDM Background IP. BDM grants Plasma-Therm
a non-exclusive, perpetual, paid-up license to use, execute, reproduce,
display, perform, distribute internally copies of and prepare derivative
works based upon any software products derived in connection with BDM's
performance under this Contract.
19. INDEMNIFICATION
BDM shall indemnify, defend and hold harmless the Plasma-Therm and
Plasma-Therm's directors, officers, and employees, from and against any
claim that the BDM owned software, including software developed by BDM
under this Contract, infringes any U.S. patent or copyright. BDM shall pay
any royalties and other costs related to the settlement of such claim or
any damages, including attorney's fees. BDM has the right to assume full
control over any claim or litigation proceeding. Plasma-Therm shall
promptly notify BDM of any such claim and shall give BDM such assistance
and information as is available to Plasma-Therm for the defense of such
claim, and Plasma-Therm will not settle or compromise any such claim
without BDM's prior written consent.
BDM and Plasma-Therm shall each defend, indemnify and hold harmless each
other as well as their respective directors, officers, agents and employees
from any claim, loss or liability including without limitation those for
personal injury (including death) or damage to property, arising out of or
connected with any aspect of the performance by that party or its
directors, officers, agents, or employees, of activities or obligations
performed under this Contract.
20. NON-WAIVER OF RIGHTS/SEVERABILILTY
The failure or delay of either party to insist upon strict performance of
any of the terms and conditions in the Contract or to exercise any rights
or remedies, shall not be construed as a waiver of its rights to assert any
of same or to rely on any such terms or conditions at any time thereafter.
If any provision of this Contract is held illegal, unenforceable or void,
then both parties will be relieved of all obligations arising under that
provision, but only to the extent the provision is illegal, unenforceable
or void, it being the intent and agreement of the parties that this
Contract will be deemed amended by modifying such provision to the extent
necessary to make it valid and enforceable while preserving its intent or,
if that is not possible, by substituting therefor another provision which
is valid and enforceable and achieves the same objectives.
21. DISPUTES
If any dispute arises under this Contract, the parties shall first attempt
to resolve such dispute by its management. Should the parties not be
successful, any dispute arising under this Contract may be settled by
appropriate legal proceedings.
22. TERMINATION FOR DEFAULT
(a) Plasma-Therm may, by written notice of the default to BDM, terminate
in whole this Contract or any task order issued hereunder in any one
of the following circumstances:
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(1) Material non-performance by BDM where it is not cured within a
period of sixty (60) days after receipt of written notice from
Plasma-Therm specifying such failure; or
(2) BDM becomes the subject of proceedings under any law relating to
bankruptcy and such proceedings have not been dismissed within sixty
(60) days.
(b) Either BDM or Plasma-Therm has the right to terminate this contract if
either party determines that the savings identification agreed to in
Schedule B Fees no longer satisfies the intent or scope of the
original contract or the savings identified in Schedule 2 , line
number 43 "Cumulative Inventory plus Productivity Savings" are not
being realized.
(c) Either party may terminate this Contract for breach upon written
notice, providing cure has not been made within sixty (60) days of
written notice of such breach.
(d) If BDM proposes savings that Plasma Therm agrees to and is unwilling
to implement for whatever reason, BDM has the right to terminate the
engagement and collect all fees for professional services, previously
rendered travel and other expenses up to the date of termination.
(e) BDM shall have the right to terminate this Contract if its invoices
have not been paid in a timely manner, in accordance with Item 7 of
this agreement, and such failure to pay has not been cured within ten
(10) days of written notice of failure to pay.
(f) BDM and Plasma-Therm shall agree upon the whole or any part of the
amount to be paid (per Attachment B, Schedule 2, Plasma-Therm:
Flow-Through to P&L) in full for any work performed by BDM, after such
termination, provided however that such amounts shall not exceed the
remaining unpaid balance of the Task Order price.
(g) Neither party shall be liable to the other for damages resulting from
default due to causes beyond the party's control and without the
party's fault or negligence.
23. TERMINATION FOR PLASMA-THERM'S CONVENIENCE
(a) This Contract and/or Task Order may be terminated by Plasma-Therm in
whole whenever Plasma-Therm shall determine that such termination is
in the best interest of Plasma-Therm.
(b) After the receipt of a Notice of Termination, and except as otherwise
directed by Plasma-Therm, BDM shall:
(i) Stop work under the Task Order on the date and to the extent
specified in the Notice of Termination;
(ii) Complete performance of such part of the Task Order as shall
not have been terminated by the Notice of Termination; and,
(c) BDM and Plasma-Therm shall agree upon the whole or any part of the
amount to be paid (per Attachment B, Schedule 2, Plasma-Therm:
Flow-Through to P&L) in full for any work performed by BDM, after such
termination, provided however that such amounts shall not exceed the
remaining unpaid balance of the Task Order price.
24. NON-HIRE
Each party agrees not to solicit, directly or indirectly, or hire any
employee of the other party for employment by any entity without the
permission of the other party during the term of this Contract, and for a
period six months (6) after termination of this Contract.
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25. GOVERNING LAW
This Contract shall be governed by and construed in accordance with the
laws of the State of Florida, without regard to its conflict of laws,
principles. Any proceeding shall be initiated and maintained in said State.
26. COMPLIANCE WITH LAWS
In performance of this Contract, neither BDM nor Plasma-Therm of itself,
nor through or by its affiliates, agents, employees, representatives or
otherwise, shall either directly or indirectly make, give, or promise any
payment or other thing of value to any person for any purpose, or commit
any other act that is unlawful under the provisions of the United States
laws entitled the Foreign Corrupt Practices Act, the Export Administration
Act, the Arms Export Control Act, and the Internal Revenue Code and, to the
extent not inconsistent with any of the laws of the United States, the laws
of any other applicable jurisdiction.
27. ATTORNEY'S FEES
If any legal action, arbitration or other proceeding is brought for the
enforcement of this Contract or any arbitration award, or because of an
alleged dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Contract, the prevailing party will be
entitled to recover reasonable attorney's fees and other cost incurred in
that action or proceeding, in addition to any other relief to which it may
be entitled.
28. SURVIVAL
Any provision of this Contract which contemplates performance or observance
subsequent to any termination or expiration of this Contract shall survive
any termination of this Contract and continue in full force and effect.
29. ORDER OF PRECEDENCE
In the event of an inconsistency or conflict between or among the
provisions of this Contract, the inconsistency shall be resolved by giving
precedence in the following order:
(a) Specific terms and conditions of this Contract;
(b) Attachment A--Statement of Services;
(c) Attachment B--Fees
30. HEADINGS
The headings and titles of this Contract are inserted only for convenience
and shall not affect the interpretation or construction of any provisions.
31. TERM OF THIS CONTRACT
The period of performance of this Contract is a maximum of 21 months from
the effective date of this Contract, unless renewed in writing by the
parties. The period of performance of individual task orders will be as
identified in the Task Orders. Delivery schedules on individual tasks will
be set forth in the applicable Task Order.
32. ENTIRE CONTRACT
This Contract and all attachments, and any documents incorporated herein by
reference shall constitute the entire Contract between the parties hereto
and supersede all prior Contracts and understandings relating to the
subject matter hereof. This Contract shall not be modified or terminated,
and neither modification nor any claimed waiver of any of the provisions
hereof shall be binding upon either party except in writing and signed by
the Parties.
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THIS CONTRACT SHALL BECOME EFFECTIVE ONLY AFTER EXECUTION BY AND IN THE PLACE
PROVIDED BELOW.
IN WITNESS THEREOF, the parties hereto have caused this Contract to be executed
by their duly authorized representatives on the day, month, and year set forth
below.
FOR PLASMA-THERM: FOR BDM INTERNATIONAL, INC. (BDM):
/s/ XXXXX XXXXXX /s/ XXXXX X. XXXXXXXXXX
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Signature Signature
Xxxxxx Xxxxxx Xxxxx X. Xxxxxxxxxx
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Name Name
V.P. of Finance & Administration Vice President
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Title Title
6/26/98 6/26/98
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Date Date
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