EXHIBIT 10.132
GTSI CORP
INTERIM RELATIONSHIP AGREEMENT
This Interim Relationship Agreement (the "Agreement"), is entered into on the
18th day of November, 2005 ("Effective Date") by and between GTSI Corp., a
Delaware corporation with its principal location at 0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxx, 00000-0000, and all of its subsidiaries ("GTSI"), and
HiEnergy Technologies, Inc., a Delaware Corporation, doing business at 0000X
Xxxxx Xxxxxxx, Xxxxxx, XX 00000, and all of its subsidiaries ("Vendor").
In exchange for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Vendor and GTSI agree as follows:
1) Right to Resell. During the term of this Agreement, Vendor grants to GTSI and
GTSI accepts the non-exclusive right to resell the products listed in Exhibit A
("Products").
2) Vendor Warranty. Vendor warrants that the Products will perform substantially
in accordance with the Documentation and other specifications published by
Vendor.
3) Regulatory Compliance. Vendor shall comply with the following Federal
Acquisition Regulation (FAR) clauses: (i) 52.212-4 Contract Terms and Conditions
- Commercial Items; (ii) 52.222-26, Equal Opportunity; (iii) 52.222-35,
Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era; (iv)
52.222-36, Affirmative Action for Workers with Disabilities; (v) 52.225-1, Buy
American Act -- Balance of Payments Program -- Supplies; (vi) 52.225-2, Buy
American Act Balance of Payments Program Certificate; (vii) 52.225-5, Trade
Agreements; (viii) 52.249-2, Termination for Convenience of the Government
(Fixed-Price); and (ix) 52.249-8, Default (Fixed-Price Supply and Service). For
purposes of this Agreement and any orders issued hereunder, the term "contract"
shall mean this Agreement; the term "Contractor" shall mean Vendor; the term
"Government" and "Contracting Officer" shall mean GTSI, unless the function to
be performed can only be performed by the Government.
4) Software License Grant. During the term of this Agreement Vendor grants to
GTSI a non-exclusive, non-transferable license to distribute the Interrogator
software ("Software") to GTSI customers ("License"). The Software shall be and
remain the sole and exclusive products of Vendor and GTSI shall have no rights
whatsoever in or to the Software. GTSI agrees not to remove from any copies of
the Software any statements appearing thereon regarding copyrights or
proprietary rights of Vendor. GTSI shall not copy (in any form), distribute,
sell, lease, assign, encumber, license or sub-license this Software or programs
written using this Software, including derivative modifications or extensions of
them, to any GTSI Customer or other party without prior written consent from
Vendor. GTSI hereby acknowledges and agrees that the Software may be licensed by
Vendor to other users without limitation of any kind. GTSI acknowledges that the
license granted hereby extends solely to GTSI Customer and that Software shall
not be used by any other division, subsidiary or affiliated entity. GTSI
acknowledges that the computer program, manuals and related data which comprise
or are related to the Software are proprietary products of Vendor who retains
all rights, title and interest, including copyright to these products. GTSI
agrees that the Software source code of Interrogator(TM) constitutes protected
information, which is equivalent to trade secret information of Vendor, whether
or not any portion thereof is or may be the subject of a valid copyright or
patent. GTSI agrees not to reverse assemble, reverse compile, reverse engineer
or otherwise attempt to discover the source code of any of the Software, except
to the extent GTSI may be expressly permitted by HiEnergy. The Software is
subject to the U.S. Governments Restricted Rights Legend and use, duplication,
or disclosure by the Government is subject to restrictions set forth in
Subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software
clause at 52.227-7013 of the Department of Defense Federal Acquisition
Regulations (FAR). The software is provided subject to Vendor's standard
commercial software license ("Commercial License"); provided, however, software
acquired for use within or for any United States federal agency is provided with
"LIMITED RIGHTS" and "RESTRICTED RIGHTS" as defined in DFARS 252.227-7015 and
FAR 52.227-19.
4) Order Cancellation. GTSI may cancel without penalty or cost any order for
which the underlying order by a GTSI customer has been canceled prior to
acceptance and GTSI may return for a full refund and without penalty any
Products received by GTSI in connection with such order.
5) Delivery Schedule. In the event Vendor is unable to deliver GTSI's entire
order according to the delivery schedule, GTSI may, at its sole option, (i)
cancel the order without penalty, or (ii) accept partial delivery, in which
event such delivery shall be separately invoiced and paid for. If GTSI accepts
partial delivery, it may cancel the remainder of its order at any time at least
five (5) days prior to Vendor's shipment of the remaining portion.
6) Pricing. (i) The prices for Products shall be sold for the term of this
Agreement to GTSI at no higher price than the price set forth in Exhibit A
hereto. The stated prices and discounts on Exhibit A shall be firm.
(ii) Due to the various discounts levels Vendor may provide GTSI for
the different prime contract vehicles, GTSI may sometimes purchase Products from
Vendor at one general pricing level (often open market pricing) and reconcile
the difference between the price paid for the Products and the price set forth
in Exhibit A. GTSI will provide Vendor with a reconciliation report on a
quarterly basis and Vendor agrees to refund or credit GTSI the delta between the
price paid for the Products and the price set forth in Exhibit A.
7) Controlling Terms and Conditions. The terms and conditions of this Agreement
shall apply to each order accepted or shipped by Vendor hereunder. Vendor agrees
that any terms or conditions contained in any acknowledgment, invoice or other
form issued by Vendor shall not be binding on GTSI to the extent that such terms
and conditions are additional to or inconsistent with those contained in this
Agreement, and no act of GTSI other than an express agreement in writing shall
be deemed an acceptance of any such term or condition.
8) Payment Terms. Payment terms shall be net 45 days from receipt of Vendor's
invoice.
9) Relationship of the Parties. The only relationship between GTSI and Vendor
which is intended to be created by this Agreement is that of independent
contractors, and neither party shall be nor represent itself to be an agent,
employee, partner or joint venture of the other, nor shall either party transact
any business in the name of the other, or on the other's behalf, or in any
manner or form make promises, representations, or warranties or incur any
liability, direct or indirect, contingent or fixed, for or on behalf of the
other party
10) Indemnification; Limitation on Liability. Each party shall indemnify and
save the other harmless from and against any and all liability for injury to
persons or property occasioned wholly or in part by an act or omission of the
other party, its sub-contractors, affiliates, suppliers, or employees, including
any and all expense, legal or otherwise, incurred by the injured party in the
claim or suit, actual or threatened, arising out of the use of the product or
services performed under this Agreement; provided, however, that each party
shall not be liable for injury to persons or property caused by the sole
negligence of the other party, its agents or employees. Each Party shall notify
the other within thirty (30) days of any claim or suit filed against the injured
party which is covered by this indemnification provision and shall authorize
representatives of the other party to settle or defend any such claim or suit
and to represent the injured party in, or to take charge of, any litigation in
connection therewith.
Except as otherwise specifically provided in this Agreement, each party shall
provide reasonable cooperation and assistance and keep the other party informed
of the progress of the defense of any claim or suit and will confer with each
other on strategies for the defense and settlement of the claim. Each party's
obligation to indemnify the other shall be reduced to the extent each Party's
negligence contributed to the liability.
11) Infringement. Vendor will indemnify, defend, and hold harmless at its
expense any claim or suit, actual or threatened, brought against GTSI, its
affiliates, shareholders, directors, officers, employees, contractors, agents
and customers alleging (i) any product infringes a patent, copyright, trade
xxxx, trade secret or other intellectual property right; (ii) any Product is in
any way defective or does not conform to Vendor's published specifications,
warranty, Documentation, advertisements or trade representations; and/or (iii)
any act or omission to act by Vendor or its subcontractors and will pay all
costs and damages finally awarded, if GTSI provides Vendor (1) written notice
within thirty (30) days of the claim; (2) all information reasonably requested
that GTSI possesses about the claim; (3) reasonable cooperation and assistance;
and (4) sole authority to defend or settle the claim. In the event the product
is held or is believed by Vendor to infringe, Vendor shall have the option, at
its expense, to (a) modify the product to be non-infringing; (b) obtain for
Customer, at Vendor's expense, a license to continue using the product; or (c)
refund the replacement cost for the product. Vendor is not obligated to
indemnify GTSI under this provision if the claim results only from: (i) the
unauthorized use of the product with other products not furnished or specified
by Vendor provided there is a substantial non-infringing use for the product; or
(ii) unauthorized modifications to the product that are not made by Vendor or
that are not made in accordance with Vendor's instructions.
11.2 EXCEPT FOR VENDOR'S IP INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE IN
SECTION 11 ABOVE, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE
LIKELIHOOD OF SUCH DAMAGES OCCURRING.
When under the authorization and consent of the United States Government to
infringe United States patents (see FAR 52.227-1), Vendor's liability for
infringement of such patents pursuant to such performance shall be limited to
the extent of the obligation of GTSI to indemnify or hold harmless the United
States Government.
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12) Compliance with Laws . Both parties and their duly authorized
representatives shall comply, at their own expense, with all applicable federal,
state, and local laws, statues, ordinances, administrative or executive orders,
regulations, and rules. As may be required by law, both parties agree to submit
all reports, certifications, and other documents and shall provide all product
information related to the handling of the products purchased under this
Agreement.
Both parties agree to comply fully with all relevant export laws and regulations
of the United States ("Export Laws") to assure that the product is not (1)
exported, directly or indirectly, in violation of Export Laws; or (2) intended
to be used for any purposes prohibited by the Export Laws.
13) Force Majeure, Neither party is liable for failing to fulfill its
obligations due to causes beyond its reasonable control and without its fault or
negligence. Examples of such causes include but are not limited to (1) acts of
God or of the public enemy, (2) acts of the Government in either its sovereign
or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine
restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe
weather. Each party must use reasonably best efforts to notify the other party
of conditions that are expected to result in a delay in or failure of
performance ("Force Majeure Conditions") within three (3) working days of the
occurrence. If a Force Majeure Condition, which limits, delays or prevents the
Vendor from performing its obligations under this Agreement, GTSI may elect to:
(1) terminate an Order without any cost or penalty or (2) suspend an Order for
the duration of the Force Majeure Condition.
15) Term. This Agreement shall commence on the Effective Date and remain
effective for a period of six months. After such six month period, GTSI shall
review the status of the Agreement and determine, in its sole discretion,
whether to extend the term. If at such time, there is no discernable revenue or
any forecasting of revenues, the relationship shall immediately terminate upon
ten (10) days prior written notice. However, after Vendor receives notice of
GTSI's intent to terminate, should the Vendor desire to remain on a specific
contract vehicle, GTSI may assess a reasonable fee, not to exceed $5,000.00 per
quarter for two consecutive quarters, for each specific contract vehicle.
16) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Virginia, without regards to the
conflicts of law principles thereof, as applied to contracts entered into and/or
performed entirely in that jurisdiction and the United Nations Convention on
Contracts for the International Sale of Goods (1980). Notwithstanding the
foregoing, any provision in this Order that is (i) incorporated in full text or
by reference form, or substantially based on, the Federal Acquisition Regulation
("FAR") or similar governmental authority shall be construed and interpreted
according to the federal common law of government contracts as applied by
federal judicial bodies, Boards of Contract Appeals, and quasi-judicial agencies
of the federal Government.
17) Disputes. Any dispute not disposed of within one-hundred twenty (120) days
from the date either party receives written notification from the other party of
the dispute, regardless of the causes of action alleged, will be resolved by
arbitration in the Commonwealth of Virginia, before a single arbitrator who is
knowledgeable in diagnostic equipment and technologies. Such arbitration will be
conducted pursuant to the then current Commercial Arbitration Rules of the
American Arbitration Association The Arbitrator shall be bound to follow the
applicable subcontract provisions and the laws of the Commonwealth of Virginia
and the federal substantive and procedural law of arbitration in adjudicating
the dispute. Both Parties may appeal the Arbitrator's decision and may take any
action, judicial or administrative, to appeal and overturn this decision. The
arbitrator shall not have the power to award punitive or exemplary damages. Each
Party will bear its own attorneys' fees and costs related to the arbitration.
Any claim or action must be brought within two (2) years after the cause of such
action.
GTSI Corp. HiEnergy Technologies, Inc.
By:________________________________ By:____________________________________
Print Name/Title:__________________ Name/Title:____________________________
Date:______________________________ Date:__________________________________
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EXHIBIT A
VENDOR PRODUCTS; LIST PRICES; GTSI's PRICE
GTSI Pricing MATRIX
COPY TO XXXXXXX XXXXXXXX
--------------- ------------- ----------------------- ---------------- --------------- ----------------
VENDOR NAME VENDOR PART PRODUCT COMMERCIAL Actual Street GTSI COST
# DESCRIPTION @ QTY 1 LIST, MSRP, @ Price/sales -discount
QTY 1 price
Quantity One
OR GSA Price
--------------- ------------- ----------------------- ---------------- --------------- ----------------
--------------- ------------- ----------------------- ---------------- --------------- ----------------
HiEnergy XXXXXX 0X0 XXXXXX 0X0 system -
Includes 1 yr. $350,000.00 15.00%
--------------- ------------- ----------------------- ---------------- --------------- ----------------
servicing and
maintenance, 1yr.
Warranty,
--------------- ------------- ----------------------- ---------------- --------------- ----------------
training, and
shipping/handling.
--------------- ------------- ----------------------- ---------------- --------------- ----------------
--------------- ------------- ----------------------- ---------------- --------------- ----------------
HiEnergy MP2 Extended
maintenance - 1 yr.
increment. $26,400.00 15.00%
--------------- ------------- ----------------------- ---------------- --------------- ----------------
--------------- ------------- ----------------------- ---------------- --------------- ----------------
HiEnergy WRNT Extended
warranty - 1 yr
increments TBD 15.00%
--------------- ------------- ----------------------- ---------------- --------------- ----------------
GTSI Pricing MATRIX
COPY TO XXXXXXX XXXXXXXX
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
VENDOR NAME VENDOR PART GTSI WARRANTY TYPE WARRANTY WEIGHT PRODUCTS
# additional replace SW, Time COUNTRY OF
DISCOUNT% FOR Replace HW, ORIGIN
GWAC'S, Depot/On-Site
IDIQ's, BPA's,
State & Local,
etc
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
HiEnergy SIEGMA 3E3
n/a Full - Software 1 YR. 105 lbs U.S.A.
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
Pro-rated-Hardware
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
Parts & Labor
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
HiEnergy MP2 n/a
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
HiEnergy WRNT n/a
--------------- ------------- ---------------- ------------------- ----------- ---------- ------------
PRICING AND PRODUCT LISTED ABOVE VALID FOR SIX MONTHS
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REMITTANCE INFORMATION:
Remit Payment Information
-------------------------
Accounts Payable Contact name: Xxxxxx Xxxxx
Address: 0000 Xxxxx Xxxxxxx, Xxxx X
Xxxx, Xxxxx, Zip: Xxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000 Ext. 211
FAX: (000) 000-0000
Email Address: xxxxxx@xxxxxxxxxxx.xxx
Return Product Info
-------------------
Contact name: Xxxx Xxxxx
Address: 0000 Xxxxx Xxxxxxx, Xxxx X
Xxxx, Xxxxx, Zip: Xxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Email Address: xxxxxx@xxxxxxxxxxx.xxx
Purchase Order Information
--------------------------
PO Contact Name: Xxxxx Xxxxxxxxx or Xxxx Xxxxx
Address if different from above
City State Zip
Phone: (000) 000-0000
FAX: (000) 000-0000
Email Address: xxxxxxxxxx@xxxxxxxxxxx.xxx
Pricing Contact
---------------
Name of person Responsible for Pricing: Xxxxx Xxxxxxxxx
Phone number: (000) 000-0000
FAX Number: (000) 000-0000
Email Address: xxxxxxxxxx@xxxxxxxxxxx.xxx
CURRENT COMPANY NAME: HiEnergy Technologies, INC.
COMPANY TAX ID # 000-000-000
Internet address: xxx.xxxxxxxxxxx.xxx
