EXHIBIT 10.120
Equipment Sales Agreement
Contract No. 19107-1 This Sales Agreement ("Agreement") is entered into by and
between HiEnergy Technologies, Inc. ("Company") and Southeastern Pennsylvania
Transportation Authority ("Customer").
1. Sale of Equipment. Customer hereby agrees to purchase from Company the
equipment (the "Equipment") as set forth on Schedule A. Reference hereinafter to
"Equipment" shall be deemed to include Software except where otherwise
indicated, and reference hereinafter to "Equipment" or "Software" shall be
deemed to include any Services to be performed.
2. Price. The price and time of payment for the Equipment (the "Contract Price")
is as follows:
Price Due Date
$603,104.96 Payment due net 30 days
upon receipt of shipment
The Contract Price includes all the items referred to in Schedule A. Any amounts
payable by Customer hereunder which remain unpaid after the delivery shall be
subject to a late charge equal to 1% per month from the due date until such
amount is paid.
Prices for Equipment specified herein are exclusive of all city, state and
federal taxes, including, without limitation, taxes on manufacture, sales,
receipts, gross income, occupation, use and similar taxes. Customer agrees to
pay such taxes directly or to reimburse Company for all such taxes, whether
imposed on Customer required to be collected by Company, or imposed on Equipment
or on Customer in connection with this sale. Wherever applicable, such tax or
taxes shall be invoiced separately. Customer agrees to pay all personal property
taxes that may be levied against Equipment after the date of delivery.
3. Delivery. Company shall use its reasonable efforts to deliver the Equipment
to Customer between ninety (90) and one hundered and twenty (120) days following
order. Delivery shall be made to a domestic location designated by Customer and
all transportation, shipping and handling charges shall be paid by Company.
Times quoted for delivery and/or readiness for operation represent Company's
best estimates and Company shall in good faith endeavor to meet such stated
times, but reserves the right to vary the times of shipment and delivery and
shall not be liable for any loss, injury, damage or other expense which Customer
or any other party may suffer by reason of such variation. Delivery may be
subject to issuance of required licensing and approvals by local, state and
federal regulatory bodies.
4. Payment Terms. Unless other terms of payment are agreed to in writing,
payment of the Contract Price, including without limitation, payment for
Services performed under the Agreement, shall be made to HiEnergy Technologies,
Inc. Any down payment shall be non-refundable except in the case that the
Company does not accept the Order, in which case the down payment will be
refunded promptly. In the event Customer refuses or otherwise declines to accept
delivery of Equipment hereunder, Company may, as Customer's agent and without
liability to Company, store or arrange for storage of such declined Equipment at
Customer's expense, and such Equipment shall be deemed to be delivered at the
time it is either put into storage or turned over to the carrier for shipment,
whichever occurs first. Any amounts which become due from Customer under the
Agreement may not be set off against any other amounts which may be due from
Company to Customer under the Agreement or otherwise. Unless otherwise stated,
all prices are in U.S. dollars.
5. Acceptance. The criterion for acceptance of Equipment is the successful
operation of the Equipment using Company's standard test procedures and
diagnostic test programs applicable to the Equipment involved. All acceptance
tests will be conducted prior to delivery and will be run by Company personnel.
If Customer or its representative fails to witness such tests, performance of
the tests will not be delayed. Acceptance will be deemed to have been made upon
successful completion of the acceptance tests as evidenced by issuance by a Test
Certificate.
6. Title and License. Title and risk of loss to the Equipment shall pass to
Customer at the time the Equipment is delivered to Customer. All Software is
made available in accordance with these Terms and Conditions and the terms and
conditions of the Company's Individual End User Software License Agreement,
which is attached hereto, incorporated herein and made a part hereof by this
reference.
7. Variations and Extras. The Equipment and Services provided by Company shall
be those specified in the Agreement as accepted in writing by Company. Should
Company agree to any variations from or extras beyond the requirements of the
accepted order, which involve extra cost to Company, or from or should Company
incur extra cost owing to delays caused by Customer's instructions, incorrect
instructions, lack of instructions, or other matters within the responsibility
of Customer, or Customer's agents or subcontractors, such extra costs may be
charged by Company and shall be paid for by Customer and the scheduled delivery
and/or completion dates shall be appropriately extended.
8. Specifications and Performance. The Equipment supplied will be substantially
in accordance with the specifications provided to Customer, subject to
reasonable variations plus or minus. Such reasonable variations shall not be
made the basis of any claim against Company or its suppliers. Company shall not
be responsible for performance figures given in any source other than the
specifications. Company reserves the right to supply Equipment in fulfillment of
its obligations hereunder, the design and/or constructions of which has been
modified, provided that the general performance of the Equipment is not
adversely affected. Unless otherwise stated, the Equipment will be packaged in
accordance with normal air freight packing standards.
9. Operation of the Equipment. Customer shall be responsible for operation of
the Equipment. Customer shall operate the Equipment in a reasonably competent
manner and in compliance with the operations manual for the Equipment. Customer
shall comply with all applicable rules, laws, and regulations in connection with
operation of the Equipment.
10. Infringement Indemnity. Company will defend and indemnify Customer against a
claim that the Equipment infringes a United States copyright or patent, provided
that: (a) Customer notifies Company in writing within xxxxxx (30) days of the
claim; (b) Company has sole control of the defense and all related settlement
negotiations; and (c) Customer provides Company with the assistance, information
and authority necessary to perform Company's obligations under this Section 10.
Reasonable out-of-pocket expenses incurred by Customer in providing such
assistance will be reimbursed by Company. Company shall have no liability for
any claim of infringement based on use of Equipment altered by Customer. In the
event the Equipment is held or is believed by Company to infringe, Company shall
have the option, at its expense, to (a) modify the Equipment to be
noninfringing; (b) obtain for Customer a license to continue using the
Equipment; or (c) refund the fees paid for the Equipment. This Section 10 states
Company's entire liability and Customer's exclusive remedy for infringement,
misappropriation or related claims.
11. Warranty and Disclaimer
(a) The warranty holds that the Equipment sold by the Company will be free
from defects in workmanship and materials and will conform to applicable
specifications for a period of twelve (12) months from the date of shipment or
1,200 hours of Neutron Generator operation, whichever comes first (the "Warranty
period"), provided the Customer gives written notice to Company of any defect
within said Warranty period or within fifteen (15) days thereafter. The Warranty
on the Neutron Generator is pro-rated (that is, for example, if a Neutron
Generator became defective after four months, the Customer would pay to Company
four-twelfths of the price of a replacement of the Neutron Generator). Credit
toward refurbishment or replacement will be given to Customer, at Company's
option, and will be prorated from the date of original shipment or for the
Warranty period, as specified. This Warranty is valid only if the accelerator
head is operated with non-defective electronic and control equipment supplied by
and in accordance with, written instructions by Company.
(b) As a first resort, Field Service Engineering (FSE) personnel and/or
subcontractors will provide on-site warranty service and maintenance and/or
parts replacment as to the defective Equipment at Customer's location. In the
event FSE or the subcontractors cannot perform the necessary diagnostics,
maintenance and/or repair at Customer's facilities, Customer will be required to
return for repair such defective Equipment to Company's designated repair
facility at no cost within thirty (30) days after said notice. Company will be
responsible for any transportation, insurance and all other charges to and from
Company's designated repair facility and will promptly reimburse Customer any
shipping and handling charges incurred by Company or its representatives. So
long as Company is so notified of any such defect in workmanship or materials
within the Warranty period, Company will correct the defect by making any
necessary repairs or, at its option, by providing replacements for such
defective Equipment, parts, or components thereof ("Parts"). It is recommended
for efficiency and timeliness that replacement be made by FSE and/or
subcontractors from a stock of Parts separately purchased by Company. Defective
Parts, if replaced, will become the property of Company. All other charges,
including without limitation, FSE travel, on-site labor, removal and
reinstallation fees, shall be assumed by Company during the Warranty period.
(c) Customer will pay Company the cost of all charges, to include but not
limited to a reasonable charge for examination and rework, if the returned
Equipment proves not to be defective or if at Customer's request Company
performs work upon returned Equipment exceeding Company's obligations under this
Warranty. (d) This Warranty extends only to the original Customer of the
Equipment from Company. This Warranty does not apply to, and Company assumes no
responsibility for, damage or defects due to any cause other than those
specified above, including without limitation, damage or defects arising as a
result of misuse, improper installation by non-authorized Company personnel or
non-authorized subcontractors, accident, neglect, modification, repair by
Customer, subjection to adverse conditions, demands exceeding performance levels
required by applicable specifications or Company furnished operating
instructions, failure to carry out recommended servicing, or from the use of
components or replacement parts other than those supplied or approved in writing
by Company.
(e) It shall be incumbent upon the Customer to show evidence of faulty
parts or workmanship when operated or tested in any other manner. The liability
of Company arising from the supply or use of the Equipment, whether it arises
under Warranty or otherwise, shall be limited solely to correcting defects or
providing replacement parts to the Customer as set forth herein above and is
limited to the period of the Warranty.
IN NO EVENT SHALL TOTAL LIABILITY EXCEED THE TOTAL CONTRACT PRICE. IN NO EVENT
SHALL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR
SHALL IT BE LIABLE FOR ANY OTHER DAMAGES, EXCEPT AS HEREINABOVE PROVIDED. THIS
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR
OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY
OTHER THAN COMPANY WITHOUT COMPANY'S PRIOR WRITTEN APPROVAL, OR ANY USE OF
REPLACEMENT PARTS NOT SUPPLIED BY COMPANY, SHALL IMMEDIATELY VOID AND CANCEL ALL
WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS. THIS WARRANTY IS EXCLUSIVE AND
IS MADE IN LIEU OF ALL OTHER WARRANTIES. THE GOODS SPECIFICALLY COVERED UNDER
THIS WARRANTY ARE OF AN EXPERIMENTAL NATURE. NO WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR PARTICULAR PURPOSE ARE EXPRESSED OR IMPLIED. NO MODIFICATION OR
ALTERATION OF THE FOREGOING WARRANTY AND LIMITATION OR REMEDIES PROVISIONS SHALL
BE VALID OR ENFORCEABLE UNLESS SET FORTH IN A WRITTEN AGREEMENT SIGNED BY
COMPANY AND THE CUSTOMER.
THE INDEMNITIES IN SECTION 10 AND SECTION 16 AND THE WARRANTY IN SECTION 11
ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER INDEMNITIES OR WARRANTIES, WHETHER
EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
12. Nondisclosure. By virtue of this Agreement, Customer may have access to
information that is confidential to Company ("Confidential Information").
Confidential Information shall include, but not be limited to, the terms and
pricing under this Agreement, the technical and other specifications for the
Equipment and all information clearly identified as confidential or proprietary,
including, without limitation, drawings, designs, specifications, manuals or
information relating in any way to the Equipment, howsoever issued, including
all oral communications subsequently identified in writing by Company as
proprietary, without the prior written permission of Company. Confidential
Information shall not include information that: (i) is or becomes a part of the
public domain through no act or omission of Customer; (ii) was in Customer's
lawful possession prior to the disclosure and had not been obtained by Customer
either directly or indirectly from the disclosing party; (iii) is lawfully
disclosed to Customer by a third party without restriction on disclosure; or
(iv) is independently developed by Customer. Customer agrees to hold
Confidential Information in confidence during the term of this Agreement and for
a period of three (3) years after termination of this Agreement. Customer
agrees, that unless required by law, it shall not make Confidential Information
available in any form to any third party or to use Confidential Information for
any purpose other than the implementation of this Agreement. Customer agrees to
take all reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees, representatives or agents in
violation of the terms of this Agreement. Copyright in all materials made
available by Company shall remain with Company at all times. The provisions of
this Section 12 shall survive any termination of this Agreement.
2
13. Rights in Data. Company retains full ownership of all inventions, designs,
copyrights, processes and data already made or evolved by Company in the
preparation of or during the course of any work under the Agreement or resulting
therefrom.
14. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR
LOSS OF PROFITS, REVENUE, OR USE INCURRED BY CUSTOMER OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT, OR TORT, OR OTHERWISE EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. COMPANY'S LIABILITY FOR DAMAGES ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF
THE DEFECTIVE EQUIPMENT. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS
BETWEEN COMPANY AND CUSTOMER. COMPANY'S PRICING REFLECTS THIS ALLOCATION OF RISK
AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE
ENTERED INTO THIS AGREEMENT.
15. Indemnity. Customer shall indemnify and hold harmless Company from and
against any and all liability, damages, costs, losses and expenses arising out
of or in connection with any personal injury, including death, or any damage to
property or business which may be suffered by use, operation, or failure to
operate of the Equipment furnished hereunder except for the negligent acts of
Company.
16. Force Majeure. If Company's ability to perform its obligations under the
Agreement is limited, delayed or prevented in whole or in part by any reason
whatsoever not reasonably within the control of Company, or its suppliers,
including without limitation, act of God, war, invasion, act of foreign enemy,
hostilities, civil war, rebellion, civil strife, strikes and/or industrial
dispute or by any law, rule, regulation, order or other action by any public
authority, transportation delays or the refusal of any necessary license,
Company shall be excused, discharged, and released of performance to the extent
such performance is so limited, delayed or prevented without liability of any
kind.
17. Miscellaneous.
(a) The section headings contained herein are for reference purposes only
and shall not affect in any way the meaning and interpretation of the Agreement.
(b) Any provision or provisions of the Agreement prohibited by, or
unlawful under, any applicable law of any jurisdiction shall, as to such
jurisdiction, be made invalid or unenforceable, without invalidating the
remaining provisions of the Agreement, provided, however, that where the
provisions of any such applicable law may be waived, they are hereby waived by
Customer to the full extent permitted by law, to the end that the Agreement
shall be deemed to be valid, binding, and enforceable in accordance with its
terms.
(c) This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California (exclusive
of conflict of laws principles), and shall be deemed to be executed in Irvine,
California.
(d) Any legal action or proceeding relating to this Agreement shall be
instituted solely in a state or federal court in Irvine, California. Company and
Customer agree to submit to the jurisdiction of, and agree that venue is proper
in, these courts in any such legal action or proceeding.
(e) All notices, including notices of address change, requests, demands or
other communications which are required or may be given hereunder pursuant to
the terms of the Agreement shall be in writing and shall be deemed to have been
duly given if delivered by hand or first class registered mail to the address
specified by the parties in the Agreement, or by fax to the address listed
below.
(f) If the Agreement is terminated or cancelled, then, at Company's
option, and in addition to all other remedies available at law or in equity: i.
Customer shall accept delivery of and make payment for all Equipment which is
either finished or ready for shipping; ii. Customer shall reimburse Company for
all costs of all material, all other costs, including but not limited to,
general, selling and administrative expenses, and a reasonable profit on the
terminated portion of the Agreement. Filing of a petition in bankruptcy,
commencement of any insolvency proceeding, or execution of an assignment for the
benefit of Creditors, shall, at the option of Company, be deemed a cancellation
by Customer.
(g) To secure payment and performance of all Customer's obligations
hereunder, Company hereby retains title to Equipment and a security interest
therein until payment in full and performance by Customer of all said
obligations. When requested by Company, Customer shall duly acknowledge this
Agreement, and execute, acknowledge and deliver to Customer, in Company's usual
form, a supplement hereto, security agreement, financing statement and other
appropriate instruments to constitute Equipment as the unencumbered security for
the obligations of Customer hereunder, or to enable Company to comply with all
applicable filing or recording laws.
(h) The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
Except for actions for non-payment or breach of Company's proprietary rights, no
action, regardless of form, arising out of or in connection with this Agreement
may be brought by either party more than one year after the cause of action has
accrued.
(i) Customer agrees to comply fully with all relevant export laws and
regulations of the United States ("Export Laws") to assure that the Equipment is
not (1) exported, directly or indirectly, in violation of Export Laws; or (2)
intended to be used for any purposes prohibited by the Export Laws. Customer
agrees that the Equipment will only be used or operated in the United States and
other territories approved in writing by Company.
(j) Company is an independent contractor; nothing in this Agreement shall
be construed to create a partnership, joint venture or agency relationship
between the parties.
(k) These Terms and Conditions, together with the other documents
constituting the Agreement as accepted in writing by HiEnergy, shall constitute
the entire agreement and supersede all prior or contemporaneous agreements,
understandings, representations, discussions, proposals, literature, and the
like, written or oral. No other terms or conditions, nor any addition to, waiver
or modification of the provisions of these Terms and Conditions shall be binding
unless made in a writing signed by an officer of Company. In the event of a
conflict between these Terms and Conditions and any other terms and conditions,
these Terms and Conditions shall supercede and take precedence over such
conflicting terms and conditions. This Agreement may not be modified or amended
except in a writing signed by a duly authorized representative of each party; no
other act, doc ument, usage or custom shall be deemed to amend or modify this
Agreement.
(l) In any proceeding brought to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to recover its attorneys' fees
and costs incurred.
(m) This Agreement shall be construed as to its fair meaning and not
strictly for or against either party.
(n) No action, regardless of form, arising out of this Agreement may be
brought by either party more than one year after the cause of action arose, or
in the case of non-payment, more than two years from the date of last payment.
3
(o) This Agreement shall not be assigned by Customer or by operation of
law without the prior written consent of Company. The Agreement shall be binding
upon and inure to the benefit of the parties, their legal representatives,
successors and assigns.
(p) This Agreement may be executed in counterparts and by fax.
Company: Customer:
HIENERGY TECHNOLOGIES, INC. SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION
AUTHORITY
By: /s/ Xx. Xxxxxx X. Xxxxxxx By: /s/
------------------------ ------------------------
Name: Xx. Xxxxxx X. Xxxxxxx Name:
Title: Chairman & CEO Title:
Address: 0000 Xxxxx Xxxxxxx Address: 0000 Xxxxxx Xx.
Xxxx X 0xx xxxxx
Xxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Phone: 000-000-0000 Phone:
Fax: 000-0000000 Fax:
4
