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TEAMING AGREEMENT
BETWEEN
SIEMENS MAINTENANCE SERVICES, LLC
AND
HI-ENERGY TECHNOLOGIES, INC.
THIS AGREEMENT, made this 4th day of August, 2004, by and between Siemens
Maintenance Services, LLC (SMS), a Delaware corporation (hereafter "MEMBER") and
Hi-energy (hereinafter "PRIME"), and collectively hereinafter called the
parties.
W I T N E S S E T H
WHEREAS, teaming together and submitting proposals utilizing the combined skills
of the parties will offer the Client the most advantageous combination of
capabilities to achieve Project objectives;
NOW, THEREFORE, in consideration of the premises, promises, covenants and
agreements contained herein, the parties agree as follows:
ARTICLE 1. PURPOSE OF TEAMING AGREEMENT
1.1 The purpose of this Agreement is to facilitate the joint effort required
to submit proposals to Clients in the interest of obtaining contracts.
1.2 Both parties will jointly respond to Clients Requests for Proposals. PRIME
shall act as prime contractor with MEMBER acting as subcontractor.
1.3 The parties will work closely together and exchange business and technical
information. For this reason, the parties agree to cooperate fully with
each other towards fulfillment of the purpose set forth in Section 1.1 of
this Agreement.
1.4 The parties will jointly devise a marketing strategy and cooperate fully
in all proposal efforts.
1.5 Nothing contained herein is intended to preclude either party from
independently submitting proposals or from performing work not related to
Teaming Projects.
1.6 In the event PRIME is successful in obtaining a contract for any Projects,
PRIME acting as the prime contractor, will then award to MEMBER and MEMBER
shall accept a mutually agreeable subcontract covering the work specified
in Statement of Work.
1.7 Each party will assist the other, as necessary, and will exert its best
efforts in preparing any proposal.
ARTICLE 2. PRIME PROPOSAL RESPONSIBILITIES
2.1 PRIME shall take the lead and shall have overall responsibility for
preparing any proposal, integrating MEMBER'S data, including submitting
any proposal to a Client in a timely manner, and negotiating a prime
contract. Provided, however, PRIME shall provide MEMBER with a copy of all
bid, proposal and prime contract documents sufficiently in advance of
submission or discussion with Client to allow MEMBER and PRIME to review
and coordinate the preparation of a mutually acceptable response to such
documents.
2.2 PRIME shall bid on Projects in good faith, in a manner responsive to
Client's technical requirements and on the basis of reasonable and
competitive pricing, provided Projects can be bid profitably.
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2.3 PRIME will coordinate Client contracts and conferences.
2.4 PRIME will identify MEMBER in the proposal as the proposed member for the
Services/Supplies specified.. All other services/supplies in any proposal
to any Client shall be provided by and the responsibility of PRIME.
2.5 PRIME will consult with MEMBER regarding MEMBER'S technical input and
pricing; however, in the event of a disagreement, MEMBER shall have final
responsibility for a proposal's content with respect to products, services
and pricing provided by MEMBER. All other services/supplies necessary for
Projects shall be the responsibility of PRIME.
2.6 PRIME shall provide to MEMBER a complete and accurate copy of all final
proposal and contract documents within a reasonable time after preparation
or receipt by PRIME, but in any event, prior to submission of the final
documents to a Client.
2.7 PRIME shall bear its own proposal costs and expenses.
ARTICLE 3. MEMBER PROPOSAL RESPONSIBILITIES
3.1 MEMBER shall support the proposal preparation by submitting its technical,
cost, and management portions of the proposal to PRIME.
3.2 MEMBER shall bid on any Project in good faith, in a manner responsive to
the Client's technical requirements and on the basis of reasonable and
competitive pricing, provided a Project can be bid profitably.
3.3 If requested by PRIME, MEMBER shall furnish qualified personnel at PRIME'S
facility to assist in preparing final proposal documents.
3.4 If necessary, MEMBER shall provide technical, financial and management
data/personnel to assist PRIME in discussions or negotiations with any
Client concerning MEMBER'S proposed work.
3.5 MEMBER shall use reasonable efforts to assist PRIME by such means as
necessary and proper to support any proposal effort including, but not
limited to, all activities prior to contract award.
3.6 MEMBER shall bear its own proposal costs and expenses.
ARTICLE 4. PERFORMANCE
4.1 If PRIME is awarded a contract for a Project and that contract includes
the Services/Supplies peculiar to the MEMBER, PRIME will award to MEMBER,
and MEMBER shall accept from and enter into with PRIME, a mutually
agreeable subcontract for such Services/Supplies required for a Project at
the pricing timely provided by MEMBER for inclusion in a proposal
submitted by PRIME to a Client. The subcontract award is subject to the
Client's approval, if such approval is required. PRIME shall use all
reasonable efforts and means to obtain any such approvals.
4.2 The subcontract shall be subject to applicable laws, regulations, and
mutual agreement on pricing and other subcontract terms and conditions,
including those provisions of PRIME'S contract with Client which are
necessarily or appropriately passed down in the subcontract. PRIME and
MEMBER shall be, as between each other, solely responsible for their
respective work under the prime contract. The subcontract shall contain
mutually acceptable cross indemnities and releases solely between the
parties with respect to their work under the subcontract.
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4.3 In the event of a disagreement between the parties, concerning MEMBER'S
scope of work, price(s), delivery, or provisions of the subcontract, which
cannot be resolved through good faith negotiations within a reasonable
time, but not to exceed thirty (30) days from the date of award of the
prime contract, either party shall have the right, without prejudice, or
further obligation to the other, to enter into agreements with others for
the subcontract work.
ARTICLE 5. PROPRIETARY/CONFIDENTIAL INFORMATION
5.1 During the term of this Agreement, it may be necessary for either party to
disclose proprietary or confidential information to the other. Such data
must be in writing and identified as proprietary or confidential
information or marked with a notice stating restrictions as to its use. If
information or data is not identified with a restrictive notice, the
receiving party may assume that all information and data is furnished with
unlimited rights of disclosure. With respect to such restricted
information, the following provisions shall apply:
a. Each party agrees not to disclose the other's proprietary or
confidential information to unauthorized parties. Each party shall
take precautions at least as strict as those normally taken by the
party to safeguard its own proprietary or confidential information.
b. Neither party shall use the other party's proprietary or
confidential information for any purpose other than as is required
for the performance of this Agreement. If any such information is
marked proprietary or confidential or bears a restrictive notice,
such marking or restrictive notice will be retained on any disclosed
information.
c. Proprietary or confidential information or data marked with a
restrictive notice shall be delivered, with a cover letter listing
the enclosures, only to the following individuals authorized to
receive such data:
For MEMBER: Xxxx Xxxxxxxxx, Vice President and GM
For PRIME: Xx. Xxxxxx X. Xxxxxxx, Chairman & Chief Scientist
5.2 All maintenance programs, design, engineering details and other data
pertaining to any discoveries, inventions, patent rights, software,
improvement reports, notes, calculations, data, drawings, estimates,
specifications, manuals, other documents and all computer programs, codes
and computerized materials prepared by or for PRIME are instruments of
PRIME's work ("Instruments") and shall remain PRIME's property. To the
extent specified in the Scope, MEMBER, its employees and agents
("Permitted Users") shall have a right to make and retain copies of
Instruments except uncompiled code, and to use all Instruments, provided
however, the Instruments shall not be used or relied upon by any parties
other than Permitted Users, and such use shall be limited to the
particular project and location for which the Instruments were provided.
All Instruments are provided for MEMBER's use only for the purposes
disclosed to PRIME, and MEMBER shall not transfer them to others or use
them or permit them to be used for any extension of the Work or any other
project or purpose, without PRIME's express written consent.
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5.3 A party's obligation regarding the use of proprietary information is not
applicable if such information:
a. was in the public domain at the time of disclosure or later comes
into the public domain, through no breach of this Agreement; or
b. was known to the receiving party at the time of disclosure, as
demonstrated by written records; or
c. is authorized for disclosure by the written approval of the
disclosing party; or
d. is not lawfully derived by the receiving party from a source other
than the disclosing party without restriction as to the use or
disclosure of the data; or
e. is independently developed by the receiving party without reference
to the confidential information.
5.4 If a subcontract is awarded to MEMBER as a result of a proposal hereunder,
these terms regarding "Proprietary/Confidential Information" shall remain
in full force and effect unless the parties specifically agree in writing
to modify the obligations of the parties with respect to subsequent use of
disclosure of each party's proprietary or confidential information.
5.5 Upon termination of this Agreement, except by the execution of a
subcontract, all material furnished hereunder disclosing such proprietary
or confidential information, data, designs, and inventions shall be
promptly returned to the owner thereof upon request of the owner of said
material. All material furnished hereunder may be destroyed by the
custodian of such information thirty (30) days following termination of
this Agreement, if the return of such information was not requested prior
to such destruction. The recipient of any data under this Agreement may
retain, in its law, contract or patent department files, one (1) copy of
data transmitted pursuant to this Agreement solely for purposes of
determining compliance with this Article 5. Nothing in this Agreement
conveys any right of license under any patent or copy right.
5.6 Nothing herein shall prohibit disclosure to attorneys, accountants,
bankers, insurers, sureties, consultants or other advisors to the parties
in connection with the transactions contemplated herein. Further, nothing
herein shall prohibit any disclosure required by any law or legal process;
provided that the disclosing party shall advise, consult and cooperate
with the other party, to the extent permitted by law, prior to any such
required disclosure.
5.7 The obligations of the parties under this Article 5 shall terminate three
(3) years from the date of this Agreement, or completion date of any
resultant contract and related subcontract.
ARTICLE 6. LEGAL EFFECT OF TEAMING AGREEMENT
6.1 Nothing in this Agreement shall be deemed to constitute, create give
effect to, or otherwise recognize a joint venture, partnership, or formal
business entity of any kind, and rights and obligations of the parties
shall be limited to those expressly set forth herein. Nothing herein shall
be construed as providing for the sharing of profits or losses arising out
of the efforts of any or all of the parties except as provided in any
subcontract between the parties as a result of this Agreement.
6.2 The parties agree that no legal relationship of any kind exists as a
result of this Agreement other than the covenants expressly contained
herein. Neither party shall have authority to create any obligations for
the other except to the extent stated herein. The parties agree that this
Agreement may be made known to the Client.
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ARTICLE 7. TERMINATION OF AGREEMENT
7.1 This Agreement, except for Article 5, shall expire 36 months from the date
hereof unless terminated earlier by one of the following events:
a. Client cancels the procurement or withdraws the Request for
Proposal.
b. Client awards the prime contract to other than PRIME.
c. The parties execute a subcontract in accordance with the Agreement.
d. Client directs PRIME to have the subcontracted work performed by
other than the Member specified herein or the Client indicates that
the Member is not acceptable to the Client.
e. Client eliminates or substantially reduces the Member's work
contemplated hereby.
f. A party notifies the other of a decision not to submit a proposal
for a Project.
g. Failure of the parties to reach timely mutual agreement on the terms
of a contemplated proposal or subcontract for a Project.
h. The parties dissolve this Agreement by mutual consent.
i. One of the parties petitions for bankruptcy or reorganization under
the bankruptcy laws, or makes an assignment for the benefit of
creditors.
j. Material breach of the provisions of this Agreement or other valid,
compelling reason exists for either of the parties to terminate the
Agreement; e.g., debarment, suspension, or criminal investigation of the
other party; grossly unsatisfactory performance of the other party, etc.
Continuation of this agreement after a change in legal status due to
merger or sale of the other party requires written approval of the other
party, which shall not be unreasonably withheld.
k. Failure of PRIME to achieve protection under the Safety Act or Public Law
85-804 or a failure to subsequently pass through rights of protection to
MEMBER under the Safety Act; or MEMBER inability to acquire an approved
application under the Safety Act on its own.
l. Upon award of a Project by DHS, MEMBER or PRIME shall enter into good
faith negotiations In order to reach a Final Agreement based upon
determination of mutually acceptable terms and conditions for the parties
to undertake the Project and PRIME to provide it's Scope. The parties
shall use good faith efforts to agree upon the terms of a Final Agreement,
provided, however, that the failure of the parties to enter into a Final
Agreement shall not create any liabilities or obligations on the part of
either party.
ARTICLE 8. PUBLICITY
8.1 No publicity or advertising relating to this Agreement shall be released
by the PRIME or MEMBER without the other party's prior written approval by
the parties legal and corporate communications departments. Nothing herein
shall prohibit any disclosure by press release, filing or otherwise that
is required by federal or state securities or other laws; provided that
the disclosing party shall advise, consult and cooperate with the other
party, to the extent permitted by law, prior to any such required
disclosure.
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ARTICLE 9. ASSIGNMENT
9.1 Neither party shall assign, nor in any manner transfer, its interests or
any part thereof, in this Agreement to others, except that either party
may assign its interests to its subsidiaries or other affiliated
companies.
ARTICLE 10. NOTICES
10.1 Any notice or communication hereunder or in any agreement entered into in
connection with the transactions contemplated hereby must be in writing
and given by depositing the same in the United States mail, addressed to
the party to be notified, postage prepaid and registered or certified with
return receipt requested, or by delivering the same in person or by
express carrier. Such notice shall be deemed received on the date on which
it is delivered in person or by express carrier or on the third business
day following the date on which it is so mailed. For purposes of notice,
the addresses of the parties shall be:
a. Siemens Maintenance Services, LLC.
000 X. Xxxxxxx, Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxxx
with a copy to:
Siemens (Legal)
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Legal Department -SMS Support
b. Hi-Energy Technologies, Inc..
0000-X Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn. Xx. Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail xxxxxxxx@xxxxxxxxxxx.xxx
Either party may change its address or the individual addressee by written
notice to the other party in accordance herewith, and any such change
shall take effect immediately upon receipt of such notice.
ARTICLE 11. WAIVER
11.1 The failure of either party to enforce at any time of the provisions of
this Agreement, or to require at any time performance by the other party
of any of the provisions hereof, shall in no way be construed to be a
waiver of such provision, nor in any way affect the validity of this
Agreement or any part thereof, or the right of any of the parties
thereafter to enforce each and every provision hereof.
ARTICLE 12. SCOPE OF AGREEMENT
12.1 The scope of this Agreement is confined solely to activities described
above and the provisions hereof shall have no application or effect
whatsoever to any work being performed by PRIME under any unrelated
subcontract with MEMBER. In this connection, it is understood specifically
that, with no respect to any such work, the terms of each such subcontract
shall govern and shall solely apply.
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ARTICLE 13. ENTIRE AGREEMENT
14.1 This Agreement, including attachments hereto, constitute the entire
understanding and agreement between the parties and supersedes any prior
oral or written agreements with respect to the subject matter hereof. This
Agreement shall not be modified unless agreed to in writing by both
parties.
ARTICLE 14. APPLICABLE LAW
15.1 The validity and performance of this Agreement shall be governed by the
laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first written above.
PRIME: HI-ENERGY TECHNOLOGIES, LLC MEMBER: SIEMENS MAINTENANCE SERVICES, LLC
________/s/_______________________ ________________/s/______________________
Name: Xx. Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and Chief Scientist Title: Vice President and General Manager
