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EXHIBIT 10.4
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
Contract No. 1003
BETWEEN
SOLTAM SYSTEMS LTD.
AND
VALENTEC SYSTEMS INC.
FOR
PRODUCTION, ASSEMBLY AND SUPPLY OF
MORTAR BOMBS PARTS 120MM, 81MM and 60MM
1
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
TABLE OF CONTENTS
ARTICLE 1 - Definitions ............................................................ 3
ARTICLE 2 - PREAMBLE, HEADINGS, ANNEXES AND CONTRACT SCOPE ......................... 4
ARTICLE 3 - SALE ................................................................... 5
ARTICLE 4 - CONTRACT EFFECTIVE DATE (CED) .......................................... 5
ARTICLE 5 - SELLER'S REPRESENTATIONS AND OBLIGATIONS ............................... 5
ARTICLE 6 - DELIVERABLES AND SCHEDULE .............................................. 5
ARTICLE 7 - PRICE .................................................................. 6
ARTICLE 8 - PAYMENT ................................................................ 6
ARTICLE 9 - PAYMENT SCHEDULE ...................................................... 7
ARTICLE 10 - NOTIFICATION AND DELIVERY ADVICE ...................................... 8
ARTICLE 11 - TITLE ................................................................. 8
ARTICLE 12 - RISK OF LOSS .......................................................... 8
ARTICLE 13 - FREIGHT AND PACKING ................................................... 9
ARTICLE 14 - WARRANTY .............................................................. 9
ARTICLE 16 - BUYER FURNISHED INFORMATION ........................................... 9
ARTICLE 17 - BUYER PERSONNEL ....................................................... 10
ARTICLE 18 - QUALITY CONTROL, DELIVERY AND ACCEPTANCE .............................. 10
ARTICLE 19 - TERMINATION FOR DEFAULT ............................................... 12
ARTICLE 20 - TERMINATION FOR CONVENIENCE ........................................... 12
ARTICLE 21 - SUBCONTRACTORS ........................................................ 13
ARTICLE 22 - APPLICABLE LAW AND ARBITRATION ........................................ 13
ARTICLE 23 - NEW MATERIALS ......................................................... 14
ARTICLE 24 - PROPRIETARY RIGHTS IN THE PARTS ....................................... 14
ARTICLE 25 - PROPRIETARY DATA AND CONFIDENTIALITY .................................. 14
ARTICLE 26 - INTELLECTUAL PROPERTY REPRESENTATION AND INDEMNIFICATION .............. 15
ARTICLE 27 - FORCE MAJEURE ......................................................... 16
ARTICLE 28 - TAXES ................................................................. 17
ARTICLE 29 - PERSONNEL DELEGATION .................................................. 17
ARTICLE 30 - VISAS ................................................................. 17
ARTICLE 31 - HEADINGS .............................................................. 17
ARTICLE 32 - ENTIRE CONTRACT ....................................................... 17
ARTICLE 33 - WAIVER ................................................................ 17
ARTICLE 34 - RELIABILITY ........................................................... 18
ARTICLE 35 - MODIFICATION-- CHANGES ................................................ 18
ARTICLE 36 - DISCLAIMER OF AGENCY .................................................. 19
ARTICLE 37 - DECLARATIONS .......................................................... 19
ARTICLE 38 - LANGUAGE OF DOCUMENTS ................................................. 19
ARTICLE 39 - COMPUTATION OF TIME ................................................... 19
ARTICLE 40 - ASSIGNMENT ............................................................ 19
ARTICLE 41 - NOTICES ............................................................... 19
ARTICLE 42 - U.S. GOVERNMENT REQUIRED CERTIFICATION AND AGREEMENT .................. 21
ARTICLE 43 - IMOD REQUIRED CERTIFICATION ........................................... 22
ARTICLE 44 - SECURITY .............................................................. 22
ARTICLE 45 - STOP WORK ORDERS ...................................................... 23
ANNEX I - STATEMENT OF WORK (SOW)
ANNEX II - PARTS SPECIFICATION, DRAWING LIST
ANNEX III - PRICE, PAYMENT AND DELIVERY SCHEDULE
ANNEX IV - IRREVOCABLE STANDBY LETTER OF CREDIT
ANNEX V - CONTRACTORS DSCA CERTIFICATION (DRAFT)
ANNEX VI - FMF GUIDELINES
ANNEX VII - CERTIFICATE OF DELIVERY MILESTONE ACHIEVEMENT .......................... 1
Page 2 of 28
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
Contract No. 1003
This Contract is entered into this 22 day of October, 2004 by and between SOLTAM
SYSTEMS LTD., a private Israeli company having an address at X.X. Xxx 00
Xxxxxxx, Xxxxxx 00000 (the "Buyer" or "SOLTAM") and VALENTEC SYSTEMS INC., a
private United States Company having offices at 0000 Xxxx Xxxxxx, Minden,
L.A.71055 (the "Seller" or "VSI").
WITNESSETH
WHEREAS, Buyer has been awarded by the Israeli Ministry of Defense
(hereinafter referred to as "IMOD") as the prime contractor of
the Israeli Defense Forces (hereinafter referred to as "IDF")
Mortar Bombs Program (hereinafter referred to as "the
Program"), which will be financed primarily through United
States Foreign Military Financing ("FMF").
WHEREAS, the parties have agreed that Seller will act as the
subcontractor of Buyer with respect to the Mortar Bombs to be
supplied by Buyer to the Israeli Defense Forces and will
produce and supply Buyer with certain Mortar Bombs' parts
(collectively, the "Parts"), in accordance with Buyer's Parts'
Specifications set forth in Annex II attached hereto and
Buyer's production know-how, which have already been disclosed
by Buyer to Seller; and
NOW, THEREFORE, in consideration of the terms, conditions and covenants
contained herein, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
Whenever used in this Contract, the following terms shall have the meaning
assigned to them as hereunder:
1.1 MORTAR BOMBS - 120mm, 81mm and 60mm mortar bombs.
1.2 CONTRACT - this contract between the Parties.
1.3 DELIVERY SCHEDULE - the delivery schedule of the Parts set forth in Annex
III attached hereto.
1.4 DSCA - The U.S. Defense Security Cooperation Agency.
1.5 FMF - Foreign Military Financing provided by the U.S. Government to fund
direct commercial contracts between American contractors and the
Government of Israel.
1.6 GOI - The Government of Israel.
1.7 IDF - The Israeli Defense Forces or any person or entity duly authorized
to represent it.
Page 3 of 28
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
1.8 BUYER FURNISHED DATA - Technical data provided to Seller by the Buyer for
the purposes of performing this Contract.
1.9 IMOD - The Israeli Ministry of Defense.
1.10 THE ORDER - IMOD order issued to SOLTAM for the supply of the Mortar
Bombs.
1.11 PROGRAM - IMOD program for the purchase of the Mortar Bombs, which is the
subject of the Order.
1.12 PROGRAM MANAGER - A member of Buyer's personnel designated by Buyer as the
manager of the Program on its behalf.
1.13 SOW - The statement of work (attached hereto as Annex "I") and as may be
updated or modified from time to time pursuant to ARTICLE 35, including
any other documents referred to therein.
1.14 SUBCONTRACTORS - Contractors and suppliers of Seller and their respective
employees who shall render goods or services to Seller, for the
performance of this Contract.
1.15 SPECIFICATIONS - The technical specifications and drawings of the Parts as
agreed upon by the Buyer and the Seller (attached hereto as part of Annex
"II"), as may be updated or modified from time to time pursuant to ARTICLE
35, including any other document referred to therein.
1.16 WORK - The work to be performed by Seller according to the SOW.
1.17 BUYER - Soltam Systems Ltd.
1.18 END USER - Israeli Ministry of Defense
1.19 EXPORT LICENSE - The export license(s), known as DSP-5, is defined as the
license required to export the Parts to Israel.
1.20 SELLER - Valentec Systems Inc.
ARTICLE 2 - PREAMBLE, HEADINGS, ANNEXES AND CONTRACT SCOPE
2.1 The preamble to this Contract and the Annexes attached hereto, or the
Annexes and documents incorporated by reference herein shall all form
integral parts of this Contract for all intents and purposes.
2.2 The headings of the Articles in this Contract are provided for convenience
only, and shall not affect the interpretation of this Contract.
2.3 The following Annexes (the "Annexes") are attached hereto, and form
integral parts hereof:
Annex I - Statement of Work (SOW)
Annex II - Parts Specification, Drawing List
Annex III - Price, Payment and Delivery Schedule (Annex III(a)
and Annex III(b)
Annex IV - Irrevocable Standby Letter of Credit
Annex V - Contractors DSCA Certification (DRAFT)
Annex VI - FMF Guidelines
Annex VII - Certificate of Delivery Milestone Achievement
Page 4 of 28
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
(or Certificate of Completion)
ARTICLE 3 - SALE
Seller agrees to sell and Buyer agrees to buy the quantity of the Parts set
forth in the attached Annex III hereto.
ARTICLE 4 - CONTRACT EFFECTIVE DATE (CED)
4.1 The date of the last to occur of the following shall be the
effective date of this Contract (hereinafter referred to as "CED");
A. Execution of the Contract by the parties hereto;
B. Receipt by VALENTEC SYSTEMS INC. of the advance payment as set
out in Articles 5 and 10;
C. Seller's receipt of Defense Security Cooperation Agency,
(hereinafter referred to as "DSCA") approval of IMOD's funding
request for this Contract. Seller shall promptly notify Buyer
in writing of the IMOD's receipt of the required DSCA approval
after it receives notice of such approval from the IMOD.
D. Seller's receipt of the required export license(s), and, if
required, approval of a Technical Assistance Agreement (TAA).
A copy of the export license will be furnished to the IMOD.
ARTICLE 5 - SELLER'S REPRESENTATIONS AND OBLIGATIONS
5.1 Seller hereby represents and warrants that it possesses and its
Subcontractors possess the necessary ability, fitness, know-how,
professional expertise, resources and, in general, the capability
and ability required to manufacture and supply the Parts, in the
quantities requested and required, and to perform all of its
obligations pursuant to this Contract.
5.2 The Seller shall manufacture and supply the Parts in accordance with
the SOW, the Specifications and drawings set forth in the attached
Annex II, and the terms and provisions of this Contract and shall
use qualified personnel and suitable materials and tools in the
performance of its obligations hereunder.
5.3 The Seller shall not sell, either directly or indirectly, or offer
to sell the Parts or any part thereof, to any third party, without
receiving prior written consent from the Buyer.
ARTICLE 6 - DELIVERABLES AND SCHEDULE
The Seller shall deliver the Parts EX-WORKS (Incoterms 2000) Seller's
factory in Minden, Louisiana, U.S.A., in accordance with the Delivery
Schedule and the other terms and conditions of this Contract. The
foregoing shall not limit Seller's obligation to deliver any Parts in
addition to those set forth in the Delivery Schedule or modify any items
listed in the Delivery Schedule, if required for the Parts to meet the
Specifications or other Contract requirements. Notwithstanding anything to
the contrary stated in this Agreement, Seller shall be responsible for and
shall bear the costs of the delivery of the Parts and all other
deliverables set forth in the attached Annex III to and from Ashdod port,
Israel in accordance with the delivery schedules in the attached Annex
III.
Page 5 of 28
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
ARTICLE 7 - PRICE
7.1 It is agreed by and between the parties hereto that the total firm, fixed
price of this Contract (the "Contract Price") shall be US$ 20,000,000
(twenty million U.S. Dollars.) as follows: (a) the sum of US$ 19,010,000
for the supply of the Parts in accordance with the attached Annex III(a)
and (b) the sum of US$ 990,000 for the transportation of the Parts in
accordance with the attached Annex III(b).
7.2 The Contract Price is calculated based on the prices set forth in the
attached Annex III.
7.3 Payment for deliveries made by Seller hereunder shall be EX-WORKS VALENTEC
SYSTEMS INC. Minden, Louisiana, U.S.A.
ARTICLE 8 - PAYMENT
8.1 The Contract Price shall be paid by IMOD, in accordance with this
Contract, which shall make payment to the Seller in U.S. Dollars according
to the corresponding delivery dates set forth in Annex III attached hereto
(the "Delivery Milestone(s)").
8.2 Upon completion of all activities required for completion of a Delivery
Milestone (including the receipt by Seller of the Certificates of
Completion), the Seller shall deliver a signed Certificate of Delivery
Milestone Achievement in the form set forth in Appendix VII, further
accompanied by all the documents specified in Article 9 to the Buyer's
Program Manager. The Buyer's Program Manager shall review and approve the
Delivery Milestone material within seven (7) days. The Buyer will deliver
the signed Certificate to IMOD and the Seller within fifteen (15) days
after their receipt by the Buyer. The Buyer will telefax/email a copy of
the countersigned certificates to the Seller at the time the Certificate
is sent to the IMOD. The Seller shall submit to the Buyer a copy of each
invoice and the associated Delivery Milestone material. The Seller shall
submit to the IMOD six (6) copies of each invoice, each copy accompanied
by a copy of the Certificate of Delivery Milestone Achievement. IMOD shall
make payment to Seller within thirty (30) days of receipt of Seller's
invoice accompanied by a Certificate of Delivery Milestone Achievement
signed by the Seller and the Buyer and the appropriate documents as
specified in the Article 9.
8.3 When sending an invoice relating to this Contract, the Seller shall
indicate the applicable reference number from the attached Annex III.
Failure to do so will prevent the processing and payment of the invoice.
In the event a Delivery Milestone payment applies to more than one (1)
reference number, the Seller shall submit a separate invoice for each
reference number, which covers a portion of such payment. In addition,
Seller's invoices must as a minimum contain the relevant information
required by the FMF Guidelines, which are attached hereto as Appendix VI
and Seller's Certification to the DSCA, including the following
certification: "(Full Name of Seller) acknowledges that U.S. Government
funds are being used by the Government of Israel to finance this Contract
and certifies that the invoice(s) submitted with respect thereto are free
from any material false statement or misrepresentation and do not omit any
material facts."
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[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
8.4 Payment shall be made by wire transfer as follows:
Payee: VALENTEC SYSTEMS INC.
Mail to: VALENTEC SYSTEMS INC.
0000 XXXX XXXXXX
XXXXXX, XXXXXXXXX, 00000
X.X.X.
Payable to: BANK NAME: Bank of Hapoalim B.M. New York
0000 Xxxxxx xx Xxxxxxx, Xxx Xxxx, XX 00000
ROUTING NUMBER: ABA# 000000000
ACCOUNT NUMBER: 00000000-01
ACCOUNT NAME: Valentec Systems Inc.
8.5 The Delivery Milestones and corresponding payments and letter of credit
amounts shall be as set forth in the attached Annex III.
8.6 IMOD's obligation to make the payments pursuant to the Delivery Milestones
shown in Annex III is conditioned upon receipt by the Buyer of the
Appendix IV Irrevocable Standby Letter of Credit.
8.7 All Delivery Milestones must be performed in full. Notwithstanding the
Seller's successful completion of its obligations under a particular
Delivery Milestone, neither the Buyer nor IMOD will have any payment
obligation for such Delivery Milestone unless the Delivery Milestone has
been successfully completed. All tasks within a Delivery Milestone must be
successfully completed in order for the Delivery Milestone to be
considered as having been successfully completed.
8.8 The Seller shall not deliver items prior to the dates set forth in the
Delivery Schedule without first obtaining the prior written permission of
the Buyer. Failure to obtain such permission shall give the Buyer and IMOD
the right to delay processing and payment of the applicable invoice until
the relevant payment date set forth in Annex III (with no interest
accruing thereon). This Article is in no way intended as authorization for
late delivery. Failure to meet the schedule as set forth in this Contract
shall entitle the Buyer to all of its rights and remedies under this
Contract, at law and in equity.
8.9 The Seller hereby confirms that the IMOD assumes no responsibility towards
this Contract. The Seller agrees that under no circumstances shall IMOD be
made a party to any dispute between the Buyer and the Seller, regardless
of the nature of such dispute.
ARTICLE 9 - PAYMENT SCHEDULE
9.1 The contract provides for the direct payment of the Contract Price by the
IMOD Mission to the United States to Seller, in accordance with DSCA FMF
Guidelines.
9.2 Payment by direct wire transfer will be made NET 30 days in United States
Dollars to Seller, Account No. 00000000-01 , Routing No. ABA# 000000000
Page 7 of 28
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
at Bank of Hapoalim B.M. New York, 0000 Xxxxxx xx Xxxxxxx, Xxx Xxxx, XX
00000.
9.3 The IMOD shall pay to Seller in accordance with the payment schedule set
forth in Annex III attached hereto.
Payment will be made to Seller's aforementioned account at the bank in
USA, against Seller's invoice in six (6) copies, each copy accompanied by
the Certificate of Delivery Milestone Achievement.
9.4 In addition with respect to the advance payment the following will apply:
9.4.1 On the CED, an advance payment, equal to 15% of the Contract Price
shall be made by IMOD to Seller. This advance payment shall be made
against the Irrevocable Stand by Letter of Credit, as outlined in
Annex IV, from an IMOD approved bank in USA, to be provided as per
Section 9.4.2 below.
9.4.2 This irrevocable standby letter of credit (the "Letter of Credit"),
equal to the amount of the advance payment, will be provided by VSI
to SOLTAM within thirty (30) days after the CED. The value of the
Letter of Credit will be reduced at the time of Parts delivery in
proportion to the value of the item being invoiced.
9.4.3 This Letter of Credit will expire upon delivery of the last
deliverable pursuant to Annex III. The Letter of Credit shall be
payable to the United States Government in accordance with Article
42 in the event Buyer is entitled to draw on the Letter of Credit in
accordance with its terms.
9.4.4 In the event that the scheduled date for completion of the final
delivery is revised, Seller shall cause the expiration date of the
Letter of Credit to be extended to a date one hundred twenty (120)
days following the latest of such revised completion date.
ARTICLE 10 - NOTIFICATION AND DELIVERY ADVICE
Delivery advice shall be telefaxed to Buyer, fifteen (15) days prior to the
first scheduled delivery from VALENTEC SYSTEMS INC., Minden, LA., containing
such information as the contract number and a brief description of the
commodities to be shipped.
ARTICLE 11 - TITLE
Title to the Parts shall pass from Seller to Buyer upon delivery, EX WORKS
(INCOTERMS 2000).
ARTICLE 12 - RISK OF LOSS
The Parts shall be delivered to Buyer EX WORKS, VALENTEC SYSTEMS INC., 0000 Xxxx
Xxxxxx, Minden, L.A 71055. Risk of loss or Parts (and other deliverables set
forth in the attached Annex III) damage to or deterioration of the Parts (and
other deliverables set forth in the attached Annex III) from whatever cause
arising shall be borne by Seller prior to and until their delivery to Ashdod
port in Israel.
Page 8 of 28
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
ARTICLE 13 - FREIGHT AND PACKING
Seller shall plan, arrange and pay for land and sea transportation from and to
and from its facility to and from Ashdod port in Israel, in accordance with
Annex III. Seller must use US carrier and shall follow all transportation
guidelines and restrictions.
ARTICLE 14 - WARRANTY
14.1 Seller warrants that the Parts delivered hereunder shall be free from
manufacturing errors and errors, deficiencies and defects in materials and
workmanship, and shall conform to the Specifications and their respective
drawings (in the attached Annex II) and other provisions of this Contract.
This warranty is limited (i) to the prompt correction of errors,
deficiencies and defects in the Parts, and (ii) to the prompt repair,
replacement or modification, at Seller's option, of defective goods or
parts, and any parts damaged by reason thereof, returned to Seller,
provided that written notice of the defect shall have been given to Seller
within twelve (12) months of delivery of the Parts in accordance with
Article 10 hereof; and provided further, that any warranties made by
Subcontractors that extend beyond the term of this warranty shall inure to
the benefit of the Buyer. Transportation charges to Seller's plant in
connection with items returned to Seller and the return transportation
charges for repaired, modified or replacement items shall be paid by
Seller if Seller is responsible for repair, modification or replacement
under the terms of this warranty and such items shall be shipped by a mode
of transportation to reach Buyer's plant no later than 45 days after
shipment from Seller's plant. Repaired, modified or replacement items
shall be fully warranted again, for the full period, as any new item when
first delivered to Buyer hereunder.
14.2 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, and the rights and remedies provided herein are exclusive and in
lieu of any other right or remedies.
ARTICLE 15 - LEFT BLANK INTENTIONALLY
ARTICLE 16 - BUYER FURNISHED INFORMATION
16.1 Buyer has already furnished to Seller for use only in connection with this
Contract certain information and materials. Title to said materials and
information shall at all times remain In Buyer. Seller shall keep and
maintain said materials in strict confidence, shall not disclose such
information and material to any third party, and shall act with the
information and material in accordance with the same practices it uses
with respect to its own materials of like quality and type, and shall
maintain control records with respect to Buyer furnished materials and
information, which materials, information and records shall be subject to
Buyer's inspection upon Buyer's request. Seller shall be entitled to
disclose such information to its Subcontractors, who need to know such
information for the sole purpose of performance of Seller's obligations
under this Agreement, and provided that prior to such disclosure they will
undertake in writing to be bound by the confidentiality obligations
hereof, and further provided that Seller shall be responsible and liable
toward Buyer for any breach by its Subcontractors of the confidentiality
obligations hereunder. Seller shall be responsible for any loss or damage
to Buyer furnished
Page 9 of 28
[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
materials from the time of delivery to Seller until their return to Buyer.
At the earlier of either the completion of this Contract, at such time as
specified elsewhere in this Contract, or Buyer's request, Seller shall
pack and prepare for shipment and deliver EX Works Minden, LA all Buyer
furnished information and materials (including all information and copies
thereof), which Seller disclosed to its Subcontractors as mentioned above,
all in accordance with directions given by Buyer.
ARTICLE 17- BUYER PERSONNEL
17.1 Buyer's personnel shall be entitled to conduct in-process monitoring and
inspection of Contract performance (including all in-process testing) at
Seller's facilities where the Work is being performed (hereinafter
referred to as the "Seller's Plant") and at the facilities of Seller's
major Subcontractors , subject to such major subcontractors permission,
which Seller will make best efforts to obtain. This shall include access
to Seller's quality assurance program. Also, the Seller will use its
reasonable best efforts to enable the Buyer's personnel to conduct
in-process monitoring and inspection of Subcontractors' performance at
Subcontractor's plants. Subject to ARTICLE 17.3. the Seller shall provide
the Buyer with access to drawings, designs, diagrams and specifications
for the Parts and all portions thereof. The Seller shall enter into
appropriate agreements with its Subcontractors and vendors to provide for
the foregoing.
17.2 The Buyer shall give the Seller at least thirty (30) days prior written
notice of the visit date to the Seller's Plant and its Subcontractors.
17.3 The Seller's obligations set forth in Articles 17.1 and 17.2 above are
conditioned on the Seller obtaining all necessary approvals from the U.S.
Government including the U.S. Department of State, and the Buyer complying
with the applicable U.S. Government laws and security regulations and
seller's Plant rules and escort requirements.
17.4 The Buyer's personnel mentioned in this Contract may include
representatives of the IMOD and IDF who will have the same rights as the
Buyer's personnel.
17.5 Without derogating from the aforesaid, the Program Manager has the right
to visit at the Seller's Plant from time on a non-interference basis
during the term of this Contract and is authorized to execute Certificates
of Delivery Milestones Achievement or issuing comments in respect to
technical documents requiring the Buyer's approval. The Program Manager
shall have no authority to make Contract changes or to grant approvals,
which require Contract changes, such approvals to be made on the Buyer's
behalf only in writing signed by the authorized signatories of the Buyer,
as stipulated in ARTICLE 18.3.
17.6 The Seller agrees to provide the Program Manager, with normal furnished
office space; reasonable access to office equipment, including, but not
limited to, photocopying equipment; supplies, secretarial services; local
and long distance domestic telephone services, at Seller's expense while
staying at Seller's facilities.
ARTICLE 18 - QUALITY CONTROL, DELIVERY AND ACCEPTANCE
18.1 Seller will be obligated to receive Buyer's approval of the First Article
(as defined in the SOW), which will be submitted by Seller to Buyer in
accordance with Section 6 of the SOW, prior to commencing production of
the Parts hereunder.
18.2 Seller shall perform interim production, quality control, and final tests
in accordance with the SOW, schedule and procedures and to the standards
specified in this
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[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
Contract. All deliverable items hereunder shall be delivered in accordance
with the Delivery Schedule, which sets forth deliverable items by name,
quantity and delivery date relative to the effective date of the Contract.
18.3 All acceptance tests shall be conducted pursuant to acceptance test plans
and acceptance test procedures ("ATP") as set forth in the SOW. The
Buyer's and IMOD's representatives may witness all tests set forth in the
SOW. The Seller shall give the Buyer at least sixty (60) days prior
written notice of the commencement date of each lot of the acceptance
tests, the Buyer shall respond and notify the Seller within forty-five
(45) days of receipt of the said notice, if the Buyer and/or IMOD
representatives intend to attend the relevant test. Upon a determination
that the acceptance test results comply with the applicable ATP and pass
the criteria specified therein, the Buyer and the Seller shall sign
Certificates of Completion with respect to such acceptance tests. If the
Buyer elects not to attend the acceptance tests, or if Buyer attends the
acceptance tests but does not act upon Seller's request for signature
within fourteen (14) days of receipt of said request, Seller shall be
authorized to sign the Certificate of Completion so long as the acceptance
test results comply with the applicable ATPs and pass the criteria
specified therein. The form for the Certificate of Completion shall be as
set out in Annex VII attached hereto.
18.4 The Seller acknowledges that each lot of Parts delivered hereunder shall
be subject to and must pass the IDF acceptance tests set forth in the SOW.
18.5 The delivery of the Parts shall be Ex-Works (INCOTERMS 2000), Seller's
facilities at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, XXX 00000. The Buyer
(or IMOD) shall furnish the Seller with shipping instructions within a
reasonable time following execution by Buyer of the Certification of
Completion for each lot of Parts. Such shipping instructions will set
forth the date(s) by which ocean freight containers are to be loaded by
Seller. Seller shall provide ninety (90) days temporary storage at its
facilities at no cost to Buyer, pending loading of the containers. Parts
not shipped within ninety (90) days may incur storage costs. Buyer agrees
to pay the storage costs, if any are imposed by the U.S. Army or their
designated representatives.
18.6 Neither the provisions of this Article 18, nor actions taken pursuant
hereto, nor any approvals or comments by Buyer with respect to Seller's
work shall affect or diminish the full and absolute responsibility of
Seller to comply with the requirements of this Contract.
18.7 Without derogating from any right or remedy available to Buyer under any
law or Contract, it is hereby specifically clarified that any delay or
expected delay in the delivery dates as set forth in the Delivery Schedule
shall be notified in writing by Seller to Buyer immediately upon Seller's
becoming aware of such delay. Seller shall specify in its notice the
reasons for the delay and the expected date of delivery.
18.8 Each Part or lot of Parts delivered by Seller to Buyer shall be
accompanied by a certificate confirming the following:
(a) That each of the Parts was built and examined in strict accordance
with the final and approved technical documentation (Specifications
and the production file);
(b) That each of the Parts was examined and successfully passed the
qualification acceptance tests as specified in the Specifications
and the SOW; and
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[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT No. 1003 [SOLTAM SYSTEMS LOGO]
(c) That all of the Parts as a whole were examined and successfully
passed the mutually agreed upon acceptance tests and meet the
acceptance tests standards set forth in the SOW.
ARTICLE 19 - TERMINATION FOR DEFAULT
19.1 Each party shall have the right to terminate this Agreement at any time
upon ninety (90) days prior written notice to the other party in any of
the following events: (i) winding-up, receivership, or dissolution
proceedings shall be commenced with respect to the other party (provided
that if such proceedings shall be rescinded within ninety (90) days of
their commencement, such notice of termination shall have no effect); or
(ii) the other party shall substantially cease to carry on business; or
(iii) a substantial part of the other party's assets shall be attached or
levied by a court or another official agency (provided that if such
attachment or levy shall be removed within ninety (90) days, such notice
of termination shall have no effect); or (iv) the other party shall fail
to perform or shall be in breach of any of its material obligations under
this Agreement and such failure or breach shall not be rectified within
ninety (90) days after receiving a written notice from the other party,
specifying the failure or breach and demanding its cessation.
19.3 However, if there is a dispute between Buyer and Seller concerning the
alleged default of the Contract such dispute shall be settled under the
Arbitration Article 22. Under a dispute situation, the amount as mentioned
above, would not be paid to Buyer unless the Arbitration Board decided the
dispute in favor of Buyer.
19.4 Except for defaults of subcontractors at any tier, the Seller shall not be
liable for any excess costs if the failure to perform the contract arises
from causes beyond the control and without the fault or negligence of the
Seller. Examples of such causes include (1) acts of God (2) fires, (3)
floods, (4) epidemics, (5) quarantine restrictions, (6) strikes, (7)
freight embargoes, and (8) unusually severe weather. In each instance the
failure to perform must be beyond the control and without the fault or
negligence of the Seller.
19.4 If the failure to perform is caused by the default of a subcontractor at
any tier, and if the cause of the default is beyond the control of both
the Seller and subcontractor, and without the fault or negligence of
either, the Seller shall not be liable for any excess costs for failure to
perform, unless the subcontracted supplies or services were obtainable
from other sources in sufficient time for the Seller to meet the required
delivery schedule.
19.5 It is agreed by and between the parties that the remedies available to
Seller and Buyer as set forth above are the sole and exclusive remedies,
recourse and liability to each of the parties under this Article of this
Contract. Under no circumstances shall Buyer or Seller be liable under
this Article or any other provision of this Contract to a cumulative
liability greater than the Contract Price.
ARTICLE 20 - TERMINATION FOR CONVENIENCE
20.1 Buyer shall have the right, at its convenience and discretion, to
terminate this Contract, in whole or from time to time in part, by
delivery to Seller of a notice
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of termination for convenience, specifying the extent to which the
performance of the Program under this Contract is terminated, and the date
upon which such termination shall become effective, which termination
shall be subject to the terms set forth in Paragraph 52.249-2 of the
September 1996 edition of the Federal Acquisition Regulation of the United
States Government, with Buyer being substituted for the "Contracting
Officer" and the "Government" and Seller being substituted for
"Contractor", except that any disputes in connection herewith shall be
resolved in accordance with ARTICLE 22 hereunder. Costs included in Seller
termination claim may be verified by DCAA.
ARTICLE 21 - SUBCONTRACTORS
21.1 Seller shall notify Buyer the identity of its Subcontractors who may take
part in the performance of Seller's obligations and undertakings pursuant
to this Contract and in addition, the types of work in which they shall be
engaged.
21.2 Seller shall cause, that all the required provisions of this Contract,
shall be included in each agreement between Seller and any of its
Subcontractors, mutatis mutandis, and shall ensure that each of its
Subcontractors shall adhere to the provisions of this Contract, provided
that the aforesaid will apply only to the Subcontractors whose contract
price is above US$ 500,000 (five hundred thousand U.S. Dollars).
21.3 Notwithstanding the above provisions, nothing in this Contract creates
contractual relations between Buyer and the Subcontractors or shall impose
on Buyer any financial obligation towards the Subcontractors and/or
diminishes Seller's responsibilities and liabilities, undertakings and
obligations to perform this Contract as it is written, and according to
its provisions.
ARTICLE 22 - APPLICABLE LAW AND ARBITRATION
22.1 Applicable Law and Enforcement
It is agreed by and between the parties hereto that this Contract shall be
construed and interpreted in accordance with the laws of New York
(excluding conflict of laws principles). Any arbitration award shall be
based on and accompanied by findings of fact and conclusions of law, and
shall be conclusive. Any award shall be confirmable by any U.S. District
Court having jurisdiction over the parties and action.
22.2 Arbitration Required
All disputes and/or claims between the parties hereto based upon any
alleged breach of any of the obligations created hereunder shall be
finally settled by an arbitrator appointed pursuant to the then rules and
regulations of the American Arbitration Association.
22.3 Language of Arbitration
The arbitration proceeding shall be conducted in accordance with the rules
of the American Arbitration Association then in force and shall be in the
English language. The arbitration shall take place in New York, New York,
U.S.A.
22.4 Confidentiality
The parties agree that any arbitration proceedings hereunder shall be
conducted on a confidential basis, and subject to the security provisions
of this Contract.
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22.5 Costs
Each party shall be responsible for its respective costs incurred in
arbitration, except that costs and fees imposed by the arbitrator for his
fees and expenses shall be borne equally by the parties.
22.6 Scope of Awards
The award of the arbitrator may be, alternatively or cumulatively, for
monetary damages, an order requiring performance of non-mandatory
obligations (including specific performance or an obligation to cease and
desist) or any other appropriate order or remedy; however, under no
circumstances shall the arbitrator be authorized to award, nor shall the
arbitrator award, consequential damages, punitive damages or multiple
damages. The arbitrator may issue interim awards and order any provisional
measures that should be taken to preserve the respective right of either
party.
ARTICLE 23 - New Materials
Seller warrants that the supplies and components to be provided by Seller under
this Contract are new, not used or reconditioned (except to the extent that such
supplies and components must be used or modified in the performance hereof), and
that at the time of the Parts delivery, none of such supplies and components
shall be of such age or so deteriorated as impair their usefulness or safety.
ARTICLE 24 - Proprietary Rights in the Parts
Buyer owns and will continue to own the proprietary rights in the Parts. Seller
will be entitled to manufacture, assemble, test and deliver the Parts under this
Contract.
ARTICLE 25 - Proprietary Data and Confidentiality
25.1 All specifications, technical data and information furnished to Seller by
Buyer in writing prior to the date of this Contract and all
specifications, technical data and information to be furnished to Seller
by Buyer in the course of this Contract which are clearly and
conspicuously marked Proprietary Data will not be disclosed by Seller to
third parties other than the U.S. Government (and with respect to such
disclosure to the U.S. Government only if required to do so by law or
regulation).
25.2 Each of the Parties shall keep confidential, shall not to disclose, or
allow to be disclosed and shall not expose or allow to be exposed, all or
any part of any information which it will be, or may be exposed to, or
will obtain or will have access to, directly or indirectly, regarding the
other Party's respective intellectual property, work techniques,
technologies, any financial or commercial information, cost information,
customer and/or client lists, suppliers, subcontractors, prices or any
other Information regarding the other Party's business or affairs
(hereinafter: the "Confidential information") and not to make use of the
Confidential Information in any manner, for any purpose other than for the
purpose of performing its respective undertakings and obligations as
provided herein, and not to transfer any of the Confidential information
to any third party. IMOD will not be regarded as a third party with
respect to the limitations under this ARTICLE.
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25.3 The provisions in ARTICLES 25.1 and 25.2 hereinabove shall not apply
to Proprietary Data aforementioned or Confidential Information that
the receiving Party can prove by documentary evidence that such
Confidential Information:
25.3.1 Has already been known to the receiving Party not in
connection with this Contract before being disclosed to it by the
disclosing Party;
25.3.2 Has become generally known to the public through no breach of
the receiving party's undertakings herein by such Party or on its
behalf.
24.3.3 Has been rightfully received by the receiving Party from a
third person who did not breach any restriction of disclosure or
obligation of confidentiality;
25.3.4 Has been independently developed for the receiving Party, by
its employees (who, at no time, have been exposed to the
Confidential Information) without use, directly or indirectly of the
Confidential Information or any part thereof received from the other
Party or on its behalf.
25.4 Notwithstanding anything to the contrary contained herein, in the
event that either Seller or Buyer shall be required to provide their
subcontractors with any of the other Party's Confidential
Information, in order to fulfill its undertakings and obligations in
connection to the performance of this Contract, it shall:
25.4.1 Ensure that its subcontractors sign a Confidentiality
Undertaking similar to its undertaking, pursuant to this Contract,
and
25.4.2 Receive back from its subcontractors, any and all such
Confidential Information, promptly upon such Subcontractors
concluding performing their respective undertakings related to the
Confidential Information.
25.5 Each of the Parties undertakes to ensure that all of their
respective employees, consultants, officers, directors,
shareholders, subsidiaries and anyone else affiliated or related in
any way to either of the Parties, shall abide with the above
undertaking. Each Party acknowledges its liability for any breach of
the above undertaking made by one or more of the persons or entities
referred to above.
25.6 The provisions of this ARTICLE 25 shall survive any termination or
expiration of this Contract.
ARTICLE 26- INTELLECTUAL PROPERTY REPRESENTATION AND INDEMNIFICATION
26.1 Seller represents that to the best of its knowledge, the items,
data, information, drawings or any other material delivered by
Seller hereunder are free from infringement from any patents or
claim of other third party proprietary rights, and that Seller has
not granted to any third party an exclusive license to manufacture
or sell the same in Israel, and knows of no such grant.
26.2 Seller shall, without limitation, at its sole cost and expense,
indemnify and hold Buyer harmless from, and defend any claims, suits
or proceedings arising out of, any infringement or claimed
infringement of:
(a) Any letters patent; or
(b) Any other proprietary rights.
26.3 Seller shall pay any judgments entered, or any settlements made with
Seller's prior written approval, with respect to the suits or
proceedings referred to in
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ARTICLE 26.2 above. Such defense and payments under this ARTICLE 26 are
conditioned on the following:
A. Buyer shall promptly notify Seller in writing of any notice of such
claim;
B. Seller or its nominee shall have control of the defense of any
action on such claim and all negotiations for its settlement or
compromise; provided, however, that if the Buyer is a named
defendant, Buyer shall have the right to approve counsel and to
cooperate in such defense; and
C. Buyer shall give Seller assistance reasonably required in connection
with such defense or negotiations.
26.4 Articles 26.2 and 26.3 shall have no application if:
A. The Infringement or claimed infringement results from compliance
with specific written instructions by Buyer directing a change in
the supplies to be delivered or in the materials or equipment to be
used; or
B. The Infringement results from the addition to, or change in, the
supplies or services furnished, which addition or change was made
subsequent to delivery or performance by Seller.
26.5 Should the use of any item or any part thereof delivered hereunder be
enjoined, or in Seller's opinion be likely to become enjoined, or in the
event Seller desires to minimize its liabilities hereunder, Seller will,
at its option, either substitute a fully equivalent, non-infringing
product, modify such item so that it no longer infringes but remains
functionally equivalent, or obtain for Buyer, at the expense of Seller or
its nominee, the right to continue use of the item or any part thereof.
ARTICLE 27 - FORCE MAJEURE
27.1 A delay in the performance hereunder by a party shall only be excused when
said delay in performance is caused by an event beyond the reasonable
control of that party and which could not have reasonably been anticipated
and was without the party's default or neglect, including but not limited
to acts of God, war, strikes, explosions, hijacking, accidents, Government
acts including limitations on travel and export limitations, Seller's
self-imposed restrictions on travel based on US State Department travel
advisories, act of the public enemy, and failure or inability of
subcontractors to perform due to any such causes as above unless the
parties otherwise agree that subcontract commodities to be furnished under
the contract are procurable in the open market. The foregoing provision
shall not, however, release a party claiming force majeure from using its
best efforts to avoid or diligently remove such circumstances. When a
party is excused from performance of any of the above-mentioned
circumstances, that party shall resume performance with utmost dispatch as
soon as such circumstances are removed. A party claiming such an excusable
delay, in order for it to be recognized, shall promptly give written
notice verified by the appropriate Chamber of Commerce.
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ARTICLE 28 - TAXES
28.1 The Contract price includes all United States federal, state or local
taxes, levies and duties imposed on the Seller, its Subcontractors or
employees. The Contract price does not include any amounts for Israeli
value added tax, custom duty, stamps or any other taxes, charges or fees
that may be levied in Israel on the Parts to be supplied by the Seller.
28.2 Any export tax, fee or other charges of any nature now existing or which
may hereafter be imposed by the U.S. Government shall be paid by Seller.
ARTICLE 29 - PERSONNEL DELEGATION
29.1 It is understood and agreed that all technical specialists whose services
are furnished to assist Buyer as contemplated herein shall operate under
the direction of Seller, but Seller shall assure that such persons are
fully responsive to Buyer's requirements. It is understood and agreed that
employees of one party, while visiting the plant of the other, shall not
be considered to be employees of the other, and that their salaries,
traveling expenses, and living costs, as well as an liability for
workmen's compensation, accident and health insurance or other benefits,
shall be borne by their own employer which shall assume all responsibility
with respect thereto. Seller shall not be liable for any injuries or death
or for any loss or damage to property arising out of or caused by their
performance of this Contract unless due to willful misconduct or
negligence of Seller. Such employees shall abide by all of the plant rules
and regulations of the plant that they are visiting or at which they are
resident. Each party shall make its own best efforts to obtain compliance
therewith.
ARTICLE 30 - VISAS
30.1 If required, Buyer shall assist Seller in obtaining Visas for Seller's
personnel sent to Israel under this Contract.
30.2.1 If required, Seller shall assist Buyer in obtaining Visas for Buyer's
personnel sent to the U.S. under this Contract.
ARTICLE 31 - HEADINGS
31.1 The articles and paragraphs headings contained herein are for convenience
and reference only, and are not a part of this Contract, nor shall they in
any way effect the interpretation thereof.
ARTICLE 32 - ENTIRE CONTRACT
32.1 This Contract contains and constitutes the entire understanding and
agreement between the parties hereto respecting the subject matter hereof
and supersedes and cancels all previous negotiations, agreements,
commitments and writing in connection therewith.
ARTICLE 33 - WAIVER
33.1 Any waiver by either party of a breach or default shall not constitute a
waiver of any other breach or default subsequently occurring.
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ARTICLE 34 - RELIABILITY
34.1 The parties agree that if any portion of this Contract shall be held to be
illegal and/or unenforceable, the parties will provide notice of such fact
to each other and will arrive at the solution by mutual agreement. The
remaining portions of this Contract shall continue to be binding and
enforceable provided that the affectivity of the remaining portion of this
Contract would not defeat the overall intent of the parties, or give one
party any substantial financial benefit to the detriment of the other
party.
ARTICLE 35 - MODIFICATION -- CHANGES
35.1 Buyer may at any time, by written order make changes within the general
scope of this contract in any one or more of the following:
(1) Drawings, designs, or specifications
(2) Content of Seller scope of work
35.2 If any such change causes an increase or decrease in the cost of, or the
time required for, performance of any part of the work under this
contract, the Buyer shall make an equitable adjustment in the contract
price, the delivery schedule, or both, and shall modify the contract.
Seller shall assert its right to an adjustment under this clause within 30
days from the date of receipt of the written order. Seller shall provide
Buyer with a proposal for equitable adjustment no later than 90 days after
asserting its right. Buyer and Seller recognize that reductions in
Seller's scope of work may Impact Seller's indirect cost rates, including
but not limited to Overhead, Fringe and G&A. In those situations, Buyer
and Seller agree that Seller's claim shall be adjusted to reflect the
changes in rates as allowed in the latest edition of the Federal
Acquisition Regulation of the United States Government, with Buyer being
substituted for the "Contracting Officer" and the "Government" and Seller
being substituted for "Contractor". DCAA shall be the audit authority for
any claim. If Seller's proposal includes the cost of material made
obsolete or excess by the change, the Buyer shall have the right to
prescribe the manner of the disposition of the material. Failure of Buyer
and Seller to agree to any adjustment shall be a considered a "dispute"
under Article - 22-Applicable Law and Arbitration of this contract.
35.3 No change altering price, payment terms or Program Schedule shall be
effective unless accompanied by an amendment signed by the authorized
representatives of Buyer and Seller. Seller shall not proceed with the
change request pending the Contract amendment. If Seller does proceed with
the change despite not having received a signed amendment to this
Contract, all costs associated with such change shall be deemed to be
covered by the firm fixed price of this Contract and will not be
reimbursed by Buyer or IMOD.
35.4 Any amendment to this Contract is subject to the prior written consent of
Seller, IMOD and DSCA.
35.5 Seller shall use reasonable efforts to reduce delays agreed upon by the
Parties in the timetable, as a result of the performance of any changes.
35.6 No change altering any technical or other contractual requirement shall be
effective unless accompanied by an amendment signed by the authorized
representatives of Buyer and Seller. Seller shall not proceed with any
such change request pending the Contract amendment.
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ARTICLE 36 - DISCLAIMER OF AGENCY
The parties to this Contract are independent legal entities. There is no
relationship existing of principal and agent. Therefore, neither party shall
have authority to accept on behalf of the other any order, agreement, or
contract, or to create any claim, guarantee, debt, obligation, expense or
liability of any kind on behalf of the other party.
ARTICLE 37 - DECLARATIONS
It is agreed by and between the parties that they shall render one to the other
whatever assistance is deemed appropriate in obtaining any Governmental
approvals for this Contract, if required.
ARTICLE 38 - LANGUAGE OF DOCUMENTS
All documents such as shipping documents, shipping advice, markings, drawings,
instruction manuals, guarantees, letters, telegrams, telefaxes, etc., in
connection with the contract shall be in English, unless otherwise authorized by
Seller.
ARTICLE 39 - COMPUTATION OF TIME
Time, if stated in number of days, will include Saturday, Sunday and Holidays.
ARTICLE 40 - ASSIGNMENT
40.1 Except as otherwise expressly provided herein, neither party shall assign
or in any manner transfer its rights and/or obligations or any part
thereof under this Contract without express prior written consent of the
other party, which consent shall not be unreasonably withheld.
40.2 Subject to any required governmental licensing approvals or restriction,
either party may, without the other party's consent, assign its rights
and/or obligations hereunder to (i) its parent company, if any; (ii) any
complete successor in interest in the event of change in corporate name,
merger, acquisition or consolidation of its parent or itself, or (iii) a
wholly owned subsidiary of its parent or itself.
ARTICLE 41 - NOTICES
41.1 Any and all notices hereunder shall be sent by registered airmail or cable
as follows:
To Buyer:
SOLTAM Systems Ltd.
X.X.X. 00
Xxxxxxx 00000
Xxxxxx
Attention: Xx. Xxxxx Rachamim
Program Manager
Telephone: 000000000000
Telefax: 097249896452
E-Mail: xxxxxxxx_x@xxxxxx.xxx
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And XX. XXXXX XXXXX
Technical Manager
Telephone: 00000000000
Telefax: 097249893643
E-Mail: Xxxxx_x@xxxxxx.xxx
To Seller:
Notices on all contractual matters for the Program shall be
addressed to:
VALENTEC SYSTEMS INC.,
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telephone:000-000-0000
Telefax: 000-000-0000
E-Mail: kethy xxxxxxx@xxxxxxxx.xxx
A copy of all notices on all technical matters for the Program
shall be addressed to:
XXXXX X. XXXXXX
Program Manager
Telephone: 000-000-0000
Telefax: 000-000-0000
E-Mail: xxxxxxx@xxxxxxxx.xxx
Contracts Manager
XXX XXXXXX
Telephone-318-459-5143
Telefax-318-459-5129
xxxxxxx@xxxxxxxx.xxx
All airmail notices shall be effective and deemed given one week after
posted, and all email / fax notices seventy-two (72) hours after delivery
to the email / fax address, unless the party can confirm receipt
otherwise.
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ARTICLE 42 - U.S. GOVERNMENT REQUIRED CERTIFICATION AND AGREEMENT
42.1 Contractor's Certification - In order for Seller/IMOD to obtain approval
of the U.S. Defense Security Cooperation Agency ("DSCA") (formerly Defense
Security Assistance Agency) to use Foreign Military Financing ("FMF")
credit funds for this procurement, Seller agrees to complete, execute in
duplicate and furnish Buyer for transmittal to the DSCA the form entitled
"Contractors Certification and Agreement with Defense Security Cooperation
Agency", hereinafter referred to as "Contractors Certification", in the
form attached hereto as Appendix V (or such modified form as may be
required by DSCA). Seller agrees that any breach of any of its obligations
under said Contractors Certification shall constitute a breach of Seller's
obligation to Buyer/IMOD under this Contract.
42.2 FMF Guidelines - Seller acknowledges receipt of the Guidelines for Foreign
Military Financing of Direct Commercial Contracts - Israel, dated August
2001 (the "FMF Guidelines"), a copy of which is annexed hereto as Appendix
VI. Seller agrees to observe the FMF Guidelines. Seller will not make any
changes to the U.S. content / non-US content identified in its
Certification without the prior written authorization of Buyer/IMOD.
42.3 Seller is fully responsible for maintaining the U.S. content percentage
set forth in Seller's certification to the DSCA. All costs associated with
maintaining the U.S. content percentage (i.e. shifting additional work to
the U.S.) shall be Seller's responsibility and shall not be reimbursed by
Buyer. In the event Seller fails to maintain such U.S. content percentages
and because of such failure the DSCA suspends or revokes, in whole or in
part, its FMF funding approval, Seller shall be deemed to be in material
breach of its obligations under this contract and Buyer shall be entitles
to return all items previously delivered (including finally accepted
items) for full refund of all amounts previously paid by Buyer to Seller
with no further Buyer financial obligations to Seller.
42.3 Payments to the U.S. Government - In accordance with Paragraph 18 of the
FMF Guidelines and Paragraph 19 of the Contractors Certification, Seller
and Buyer agree that all payments to the U.S. Government must be made
payable to the United States Treasury and remitted (1) directly by check
to the DSCA or (2) by wire transfer to the U. S. Treasury's account.
Checks shall be made payable to "United States Treasury" and mailed to:
Defense Finance and Accounting Service (DFAS-DE/IADD)
0000 X. Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
The check shall be accompanied by a letter of explanation Identifying
Israel as the purchasing country. Wire transfer payments shall be
transferred as follows:
United States Treasury
New York, New York
000-000-000
DFAS-DE/IADD
Agency Code 3801
Refund from Seller, for purchases made by the Government of Israel under
GOI Contract/Purchase Order No.
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Seller shall furnish to Buyer concurrently with any transmittal to the
U.S. Government, copies of any check, wire transfer, letter of explanation
or other relevant correspondence, which is sent to U.S. Government.
42.4 DCMA and DCAA Administrative Services - As a condition of FMF funding of
the Contract, Seller agrees that Defense Contract Audit Agency (DCAA)
contract audit services will be performed to ensure that Seller is in
compliance with the Defense Security Cooperation Agency (DSCA)
contractor's certification. DCAA will perform contract audit services in
accordance with the contractor's certification. To ensure contractor
compliance, DCAA contract audit services will be provided over the life of
the Contract and will be coordinated with the Defense Contract Management
Agency.
ARTICLE 43 - IMOD REQUIRED CERTIFICATION
43.1 Seller agrees that by signing this Contract it is certifying that
throughout the conduct of the solicitation leading to this Contract no
officer, director, employee, representative or agent of Seller offered,
promised or discussed with Buyer/IMOD personnel involved in this Contract
1) the future employment of (or business opportunity with) any Buyer/IMOD
personnel, 2) the transfer of any money, gratuity or other thing of value
to any Buyer/IMOD personnel, and/or 3) the transfer by any Buyer/IMOD
personnel to Seller of any proprietary or source selection information
regarding this or any other procurement. For purposes of the preceding
sentence (and only for purposes of such preceding sentence), Buyer/IMOD
shall be defined so as to include officers in the Israeli Defense Forces
or employees of Buyer. The prohibited conduct described above shall
continue to be prohibited following the award of this Contract. Seller
further certifies that except as disclosed to Buyer/IMOD prior to Seller's
signature of this Contract, Seller does not currently employ any
individual or retain any agents who at any time within the past two years
were 1) employed by the Government of Israel Ministry of Defense
(including, but not limited to, Its Mission to the U.S.) or 2 officers on
active duty in the Israel Defense Forces. Any breach by Seller of the
certifications set forth above shall constitute a breach of Seller's
obligations to Buyer/IMOD under this contract. Such breach shall entitle
Buyer/IMOD to terminate this Contract without any Buyer/IMOD liability to
Seller (including the right to return items already delivered for a refund
of amounts already paid).
ARTICLE 44 - SECURITY
44.1 The Program covered by this Contract is unclassified.
44.2 Except as required by U.S. and Israeli law, neither Seller nor its
Subcontractors shall release any publicity as to Buyer's identity or other
information concerning this Contract (including publication in internal or
trade newsletters) without the prior written consent of Buyer.
44.3 The furnishing of any classified information and materials to Seller by
Buyer in connection with this Contract requires the prior written consent
of IMOD. IMOD's consent may be conditioned upon execution of an agreement
between Seller and Buyer on procedures governing the treatment of such
information and materials.
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44.4 Buyer agrees not to disclose or present the Program (or any part thereof)
to any third party excluding the U.S. Government and Seller's
Subcontractors on a need to know basis, without the prior written consent
of Seller's Security Department.
44.5 The disclosure, transmittal, use, storage, distribution and disposition of
all information, data, documentation and equipment produced or exchanged
by either Party under the terms of this Contract shall be in accordance
with the procedure utilized by Seller for the protection of U.S.
Government work.
44.6 All of Seller's personnel, who are to perform services under this Contract
in Israel, if any, shall be subject to Israeli security requirements.
Buyer supplied questionnaires shall be completed by Seller personnel who
are to perform services in Israel, if there are any, and submitted to the
Director of Buyer's Security Department at least thirty (30) days prior to
planned departure from the U.S.
44.7 Seller agrees to insert security provisions, which conform to requirements
of this Article in all subcontracts awarded to Subcontractors.
44.8 Seller shall comply with U.S. security procedures at its plant, inter
highlight, in order to implement the above security requirements upon the
signing of this Contract and shall inform all employees and agents
connected with the Contract of the provisions of this ARTICLE.
44.9 Buyer and IMOD personnel shall be subject to the Visit Request procedures
of the U.S. Government, Seller and Subcontractors.
44.10 Notwithstanding any provisions in this Contract to the contrary, in no
event shall Buyer deny Seller consent to disclose information relating to
this Contract to U.S. Government, if such disclosure is required by U.S.
law or regulations.
44.11 The Parties' authorized representatives concerning all security matters
relating to the performance of this Contract are as follows
SOLTAM: Head of Security of SOLTAM and
Director of Security
Government of Israel
Ministry of Defense
Mission to the United States
VALENTEC SYSTEMS INC.
Security Chief - Xx. Xxx xxxxxxxx
Valentec Systems, Inc.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000)-000-0000 E-mail:xxxxxxxxx@xxxxxxxx.xxx
ARTICLE 45 - STOP WORK ORDERS
45.1 Buyer may, by written order to Seller at any time, require Seller to stop
all, or any part, of the work called for by this Contract for a period of
up to ninety (90) days after the stop work order is delivered to Seller
and for any further period to which the parties may agree. Any such order
shall be specifically
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[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT NO. 1003 [SOLTAM SYSTEMS LOGO]
identified as a stop work order issued pursuant to this ARTICLE. Upon
receipt of such an order, Seller shall forthwith comply with its terms and
take all reasonable steps to minimize the incurrence of cost allocable to
the work covered by the order during the period of work stoppage. Within a
period of ninety (90) days after a stop work order is delivered to Seller,
or within any extension of that period to which the parties have mutually
agreed to an extension, Buyer shall either:
(i) Cancel the stop work order; or
(ii) Terminate the work covered by such order by reason of Seller's
default or as provided in ARTICLE 20, Termination for Convenience.
45.2 If a stop work order issued under this ARTICLE is cancelled or the period
of the order or any extension thereof expires, Seller shall resume work.
An equitable adjustment shall be made in the delivery schedule or Contract
Price, or both, and the Contract shall be modified in writing accordingly,
if:
A. The stop work order results in an increase in the time required for,
or in Seller's cost properly allocable to, the performance of any
part of this Contract; and
B. Seller asserts a claim for such adjustment within thirty (30) days
after the end of the period of work stoppage;
ARTICLE 46 - FIELD PRICING SUPPORT
46.1 Seller agrees to the requirement for field pricing support as stipulated
hereunder. This support will be provided by Defense Contract Management
Command (DCMC) and Defense Contract Audit Agency and will normally include
technical and cost analysis of Seller's proposal. IMOD shall request field
pricing support through the DCMC international Logistics Office in New
York, NY. Field pricing support will include an audit review by the
cognizant contract audit activity before concluding negotiation of the
Contract or any modification. Seller will submit cost or pricing data in
connection with the pricing of this Contract or any modification to this
Contract which affects the price of the Contract.
46.2 The U.S. Government (USG) representatives shall have the right to examine
and audit all of Seller's books, records, documents, and other data,
related to proposing, negotiating, pricing, or performing this Contract,
in order to evaluate the accuracy, completeness, and currency of the cost
or pricing data. The right of examination shall extend to all documents
necessary to permit adequate evaluation of the cost or pricing data
submitted, along with the computations and projections used. Seller shall
make available at its office at all reasonable times the materials
described above for examination, audit, or reproduction, until 3 years
after final payment under the Contract. General access to Seller's books
and financial records shall be limited to USG representatives. The USG
representatives shall verbally notify the IMOD immediately of data
provided that is so deficient as to preclude review, or where Seller has
denied access to records or to cost or pricing data considered essential
to the performance of a satisfactory review. This verbal notification
shall be promptly confirmed in writing to the IMOD describing the
deficiency or the denial of access to data or records. Seller failure to
provide adequate cost and pricing data may disqualify the Contract from
consideration for FMF approval.
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[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT NO. 1003 [SOLTAM SYSTEMS LOGO]
46.3 Field pricing support is intended to give the IMOD a detailed analysis of
the proposal for use in the Contract negotiations to determine a fair and
reasonable price. It normally includes an audit review by the cognizant
audit activity and a technical analysis by DCMC. Seller has no objection
that Buyer will receive from IMOD the results and conclusions of said
audit.
A. Cost analysis will include, as appropriate:
1. Verification of cost or pricing data and evaluation of cost
elements.
2. Evaluating the effect of Seller's current practices on future
costs to ensure that the effects of inefficient or uneconomical past
practices are not projected into the future.
B. Comparison of cost proposed by Seller for individual cost elements
with:
1 . Actual costs previously incurred by Seller;
2. Previous cost estimates from Seller or from other offers for the
same or similar items;
3. Other cost estimates received in response to the IMOD's request;
4. Independent cost estimates by technical personnel;
5. Forecasts or planned expenditures.
C. Verification that Seller's cost submissions are in accordance with
U.S. DOD contract cost principles and procedures and, when
applicable, the requirements and procedures of the Cost Accounting
Standards.
D. Review to determine that all cost or pricing data necessary to make
Seller's proposal accurate, complete, and current has been either
submitted or identified in writing by Seller.
E. Analysis of the results of any make-or-buy program reviews, in
evaluating Seller costs.
46.4 Technical analysis will include, at a minimum, a review and assessment of:
the quantities and kinds of material proposed; the need for the number and
kinds of labor hours and the labor mix; any special tooling and facilities
proposed; reasonableness of proposed scrap and spoilage factors; and any
other data that may be pertinent to the cost or price analysis.
46.5 Any Subcontracts meeting the $750,000.00 or more threshold will be subject
to the same surveillance as Seller.
ARTICLE 47 - MISCELLANEOUS
47.1 No cancellation, modification, amendment, deletion, addition or other
change in this 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.
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[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT NO. 1003 [SOLTAM SYSTEMS LOGO]
47.2 This Contract supersedes all other agreements, oral or written, heretofore
made with respect to the subject hereof and the transactions contemplated
hereby, and contains the entire agreement of the parties, except to the
documents references in this Contract which were executed prior to this
Contract coming into effect.
47.3 Seller shall not assign this Contract or its obligations under this
Contract or any part of them without the prior written consent of Buyer,
which consent shall not be unreasonably withheld, subject to provisions as
may be determined by Buyer.
47.4 Any change, modification or amendment of this Contract shall be made in
writing, shall be signed by the duly authorized representatives of the
Parties and shall be subject to and shall have no force and effect without
the previous written consent of IMOD and DSCA.
47.5 In no event shall either party be liable for indirect, incidental or
consequential damages.
47.6 Any provision hereof prohibited by, or that is unlawful or unenforceable
under, any applicable law of any jurisdiction, shall as to such
jurisdiction be ineffective without affecting any other provisions of this
Contract; provided, however, that if the provisions of such applicable law
may be waived, they are hereby waived, to the end that this Contract be
deemed to be a valid and binding agreement enforceable in accordance with
its terms.
47.7 The provisions of this Contract shall be binding upon and inure to the
benefit of Buyer and Seller and their respective successors and assigns,
but 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 above.
47.8 This Contract may be executed in several counterparts in the English
language, each of which shall be deemed to be an original and all such
counterparts together shall constitute but one and the same instrument.
End of Articles
(Signature page follows)
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[VALENTEC LOGO] AMMUNITION MULTI YEAR PROGRAM - CONTRACT NO. 1003 [SOLTAM SYSTEMS LOGO]
IN WITNESS WHEREOF, the authorized representatives of the parties
hereto have executed this Contract on the dates set forth below
SOLTAM SYSTEMS LTD. VALENTEC SYSTEMS, INC.
/s/ Zwika Kreizman By: /s/ Xxxxx Shows
-------------------------- ------------------------
Mr. Zwika Kreizman Mr. Xxxxx Shows
Title: Deputy Manager & V.P for Finance Title: Vice Pres. & G.M.
Soltam Group
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------- ------------------------
Xx. Xxxxx Rachamim Xx. Xxxxxx X. Xxxxxx
i.e. V.P Sales & Marketing Title: Contracts & Purchasing
& S.B.U Manager Mortars & Ammunition Mgr.
DATE: 10/23/04 DATE: 10/23/04
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[SOLTAM SYSTEMS LOGO] [LOG0]
Ship in Place Funding Availability Schedule
for the Israeli Ammo Project
[ILLEGIBLE]
