EXHIBIT 10(pp)
CONTRACT BETWEEN
TRW SYSTEMS INTEGRATION GROUP and COMPUTERIZED THERMAL IMAGING, INC.
STRATEGIC SYSTEMS DIVISION ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
POST OFFICE BOX 1310 LAKE OSWEGO, OR 97034
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
CONTRACT NUMBER: TRW-96-002 TERMS: NET 30 DAYS
COST PLUS FEE CONTRACT
This Contract is entered into October 29, 1996 between TRW Inc., an Ohio
corporation, operating through its Systems Integration Group, Strategic
Systems Division, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter also called "TRW" or "Seller") and Computerized Thermal Imaging,
Inc. a Nevada company (also called "CTI" or "Buyer").
WITNESSETH THAT:
In consideration of the mutual promises, covenants, and agreements herein set
forth, the Parties agree that the Seller shall furnish and deliver to the
Buyer all the goods, and perform all the services set forth for the
consideration stated herein. The rights and obligations of the Parties to
this Contract shall be subject to and governed by this Contract and other
documents or Specifications attached hereto or referenced herein. This
Contract supersedes any and all prior agreements of the parties, whether
written or oral, concerning the subject matter hereof.
This Contract shall not be varied in its terms or conditions by any oral
agreement or representation, or otherwise than by an instrument in writing of
even or subsequent date thereto, executed by both Seller and Buyer.
The article titles used herein are for convenience only and shall in no way
be construed as part of this Contract or as an indication of the meaning of
the particular section.
INDEX OF ARTICLES
ARTICLE
NO. ARTICLE TITLE PAGE
--- ------------- ----
I Definitions and Priority 2
II Limits of Agreement 3
III Scope of Work 3
IV Performance, Delivery Schedule and Termination 3
V Inspection and Acceptance 3
VI Estimated Cost and Fee 4
VII Consideration and Payment 4
VIII Invoices and Remittance 4
IX Payment Terms 5
X Packaging and Delivery 5
XI Warranty 5
XII Limitation of Liability 6
XIII Indemnification 7
XIV Excused Performance 7
XV Insolvency of Buyer 7
XVI Default 7
XVII Assignment 8
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INDEX OF ARTICLES (Continued)
ARTICLE
NO. ARTICLE TITLE PAGE
--- ------------- ----
XVIII Notices 8
XIX Governing Law - Arbitration 8
XX Taxes 9
XXI Contract Management 9
XXII Notice of Delay 9
XXIII Reports 9
XXIV Intellectual Property Rights & New
Technology & Data Rights 10
XXV Patents Infringement 11
XXVI Changes 11
XXVII Modification and Waiver 12
XXVIII Severability 12
XXIX Counterparts 12
XXX Remedies 12
XXXI Proprietary Information and ▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇
XXXII System Integration Rights 13
XXXIII Buyer Furnished Software and Property 13
ARTICLE I - DEFINITIONS AND PRIORITY
A. The following words and phrases shall have the meanings set forth below:
1. Contract: This Contract between TRW and CTI includes Appendix A
-Statement of Work, attached hereto and made a part hereof, as may be
modified or supplemented from time to time by agreement by the parties, and
similar schedules, work plans, or documents if approved by both parties from
time to time for performing the projects.
2. Estimated Cost: The amount within which it is agreed that the
Statement of Work is likely to be accomplished.
3. Fee: A compensation method which might be approved by the parties
from time to time for a portion of the Statement of Work by which Seller
would be paid an agreed dollar amount for full satisfaction regardless of the
Cost incurred, or Seller may be reimbursed for any Costs incurred allocable
to the appropriate job and paid as agreed amount in addition to Costs for
full satisfaction, for any specific statement of work for which the parties
agree in advance to be compensated on this basis.
4. Delivery Dates: The dates agreed in the Statement of Work for the
services to be performed at the Site.
5. Services: The services described in the Statement of Work to be
provided by TRW.
6. Site: The facility or other location identified in the Statement
of Work as the destination to which transportation is to be arranged for
deliverable items, and at which services are to be performed.
7. Costs: The actual cost incurred by Seller to perform the work
under this Contract, including the cost of equipment provided and expenses
incurred plus the same burden rates for such costs as TRW charges on
government contracts.
8. Fee: The amount calculated as a percentage of Cost shall be
referred to as the "Fee." The compensation Seller is expected to be paid for
the work under this Contract is Cost reimbursement plus the Fee.
B. In case of any ambiguous inconsistencies between this Contract and the
Statement of Work or similar work orders, the text of this Contract shall
prevail.
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C. This Contract definitizes and applies to work performed pursuant to the
Advanced Authorization to Proceed contained in CTI telefax dated October 10,
1996.
ARTICLE II - LIMITS OF AGREEMENT
The terms and conditions set forth herein constitute the complete and
exclusive statement of all of the terms of the agreement between TRW and CTI
with respect to this Contract, unless different or additional terms and
conditions are hereafter agreed in writing and made a part hereof by Contract
amendment. All prior representations and agreements of the parties are
merged herein and no agent, employee or representative of Seller has the
authority to bind Seller to any other affirmation, representation, promise or
warranty concerning the software or services furnished by Seller, and such
are not enforceable by Buyer unless contained herein. This Contract shall
not be varied, supplemented, qualified, or interpreted by any prior course of
dealing between the parties or by any usage of trade.
ARTICLE III - SCOPE OF WORK
Seller, as an independent Contractor and not as an agent of Buyer,
shall, in conformance with the terms and conditions more particularly set
forth herein, provide the necessary personnel, and services and do all things
necessary or incidental to furnish and deliver to the Buyer all requirements
as set forth in Appendix A-STATEMENT OF WORK, dated October 22, 1996, as
revised or amended from time to time.
ARTICLE IV - PERFORMANCE, DELIVERY SCHEDULE AND TERMINATION
The period of performance shall be from the effective date hereof and
continue for 48 months. The Seller shall provide the services, complete the
installation of the Buyer furnished materials as required by ARTICLE III-
SCOPE OF WORK within the period of performance. Seller shall request
clarifications or instructions from Buyer if the Statement of Work or
instructions from Buyer are not clear or are ambiguous as the project
progresses. Either party may terminate this contract for convenience by
giving thirty (30 days) written notice.
ARTICLE V - INSPECTION AND ACCEPTANCE
A. Final inspection and acceptance of services shall be made at the sites
designated by Buyer. All services covered by this Contract will be subject
to inspection and test by Buyer to the extent practicable at reasonable times
and places prior to acceptance. Any such inspection and test shall be
performed in such manner as to not delay or otherwise interfere with Seller's
performance hereunder.
B. Buyer shall promptly inspect services within 5 days of being notified by
Seller of their being tendered for inspection, and shall, within ten (10)
days after such inspection, give written notice to Seller of any claim that
the goods or services do not conform with the terms of this Contract. If
Buyer fails to inspect services called for above, Buyer will be held to have
accepted the goods or services with all defects that inspection would have
revealed, subject to Seller's obligations under ARTICLE XI, and to have
waived all rights Buyer may have had to revoke acceptance after said ten (10)
day period. Notwithstanding the foregoing, Buyer may notify Seller of a
reasonable delay and toll the inspection period.
C. Depot Operation. To be determined after approval of TRW's Logistics
Support Plan.
ARTICLE VI - ESTIMATED COST AND FEE
[REDACTED DUE TO CONFIDENTIALITY: CONTAINS INDUSTRY
SENSITIVE OR INTELLECTUAL PROPERTY PROVISIONS.]
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ARTICLE VII - CONSIDERATION AND PAYMENT
Seller shall submit invoices monthly identifying work performed, Costs
incurred and the applicable Fee, consisting of the total payable. At the end of
Seller's work required by the Contract, a final invoice containing all unpaid
Cost incurred and uninvoiced Fee, if any, shall be submitted and paid.
ARTICLE VIII - INVOICES AND REMITTANCE
A. Invoices for payments hereunder shall be submitted to the following
address:
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Computerized Thermal Imaging, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Remittance shall be made by check to: (if by U. S. Mail)
TRW Inc.
Accounts Receivable
Lock Box File No. 41818
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
C. Remittance shall be made by check to: (if sent by Commercial Express
Carrier)
TRW Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE IX - PAYMENT TERMS
Payment terms are net thirty (30) days after date of Seller's invoice.
Seller preserves the right at any time to suspend credit or to change credit
terms provided herein, when the financial condition of Buyer reasonably so
warrants. In such case, in addition to any other remedies herein or by law
provided, cash payment or satisfactory security from Buyer may be required by
Seller before shipment, or the due date of payment by Buyer under any
Contract or order with Seller may be accelerated by Seller. Failure to pay
invoices at maturity date makes all subsequent invoices immediately due and
payable, irrespective of terms, and Seller may terminate work and/or withhold
all subsequent deliveries until the full account is settled.
ARTICLE X - PACKAGING AND DELIVERY
Packaging and packing of all items for delivery shall be in accordance
with good commercial practice and adequate to assure safe arrival at
destination. The delivery point of all items to be delivered by Seller
hereunder shall be F. O. B. Origin.
ARTICLE XI - WARRANTY
A. Software
For six (6) months commencing upon the date software installation is
accepted by Buyer at the designated site, TRW warrants that the software
modified or developed by TRW, excluding defects existing at the time of
delivery to TRW in the coding of the software originating from any third
party, shall substantially conform to professional quality, standard industry
practices, the TRW Software Guidelines, and the purpose and requirements set
forth in Appendix A - STATEMENT OF WORK, or other document referencing the
software description. If any of the TRW modified or developed software fails
to comply with the warranty set forth in this paragraph, TRW shall make a
reasonable effort to correct the program errors either (a) without increase
to the Fee or Cost of the Contract or (b) without increase to the Fee but
with reimbursement of Costs, if Buyer's instructions were ambiguous and
unclear and Seller's action was
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reasonable. Any corrected software will be warranted for the remainder of
the original warranty period or thirty (30) days, whichever is longer.
Notwithstanding any other provision of this ARTICLE XI, TRW does not warrant
that software provided hereunder is free of all errors or omissions.
Further, TRW does not warrant that the functions contained in the delivered
software will meet Licensee's requirements or will operate in combinations
other than as specified by TRW, or that the operation of the software will be
uninterrupted or error free or that all program defects can be corrected.
Seller will transfer to Buyer the benefit of any third party warranties to
the extent allowable by the third parties.
B. Services
1. All services performed by TRW will be of professional quality and
conform to standard industry practices and be in accordance with the
Statement of Work, or other document specifying the particular purpose of the
services approved by the parties. Any services which are actually defective
will be re-performed with reasonable promptness, after written notification
is received, and if said notice is made promptly after discovery of such
defect, and in no event later than six (6) months from the date of acceptance
thereof. In such event, to perform any such re-work or transportation caused
thereby, either (a) no additional Fee or duplicated Cost shall be allowed, or
(b) only Costs shall be reimbursed if Buyer's instructions were ambiguous and
Seller reasonably provided the services. If services are to be performed
pursuant to a software warranty, the software warranty standard and
conditions apply. Buyer shall notify Seller in writing of any defect,
furnish relevant information with respect thereto.
2. In instances when re-performance of a defective service is
impractical, and at TRW's sole discretion, an equitable adjustment of the
earned Fee and Costs of the affected item may be offered in lieu of
re-performing the service.
C. 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. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL (EXCEPT AS MAY BE ATTRIBUTABLE TO ARTICLES XIII, XXIV, XXV, OR
XXXI), OR PUNITIVE DAMAGES.
D. Deport Warranty - To be determined after approval of TRW's Logistics
Support Plan.
ARTICLE XII - LIMITATION OF LIABILITY
Neither party in any event shall be liable for indirect, incidental,
special or consequential (except as may be attributable to ARTICLES XIII,
XXIV, XXV, OR XXXI) or punitive damages, including such liability for
improper disclosure or misuse by others of any data gathered or processed by
the systems delivered under this Contract. Seller shall not be liable for
incorrect or inappropriate responses or incorrect diagnosis resulting from
the data gathering or processing performed by the systems delivered under
this contract. Seller's liability for damages to Buyer on any claim,
including negligence, for any loss or damage resulting from the performance
or breach thereof, or the design, manufacture, sale, delivery, resale,
installation, technical direction of installation, inspection, repair,
operation or use of any software, data, goods or services covered by or
furnished under this Contract, shall in no case exceed the amount of fee paid
to the Seller under this contract or $1,000,000, whichever is less.
ARTICLE XIII - INDEMNIFICATION
To the extent that Seller's or Buyer's agents, employees or
subcontractors enter upon premises occupied by or under the control of the
other party in the course of the performance of this Contract, the parties
shall take all necessary precautions to prevent the occurrence of any injury
(including death) to any persons, or of any damage to any property arising
out of acts or omissions of such agents, employees or subcontractors, and
except to the extent that any such injury or damage is due solely and
directly to the other party's gross negligence or willful misconduct, shall
indemnify the other party, its officers, employees and agents, against any
loss, claims, damages, liability, expense (including reasonable attorney
fees) and cause of action whatsoever arising out of any act or omission of
the party, its agents, or employees, and both parties shall maintain such
Public Liability, Property Damage and Employee's Liability and Compensation
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Insurance as will protect the other party from any of said risks and from any
claims under any applicable Workmen's Compensation and Occupation Disease
Acts. Furthermore, each party agrees to hold harmless and indemnify the
other from any third-party claim against one party arising from the other
party's negligence or intentional misconduct.
ARTICLE XIV - EXCUSED PERFORMANCE
In addition to any excuse provided by applicable law, Seller shall be
excused from liability for non-delivery, delay in delivery, or delivery of
non conforming goods or services arising from any events beyond its control,
whether or not the events were foreseeable by either party when entering into
the Contract, specifically including, but not limited to, war, riot, strikes,
lockouts, labor disturbances, resignation or death of any of key personnel,
energy or material shortages, fire, flood, earthquake or other natural
catastrophe, Federal, State or Local government requirement or proscription,
breach of contract or other failure of a subcontractor to perform, or
impossibility, including practical impossibility, to perform the services
called for herein or to develop the software without going beyond the state
of the art. Unless expressly provided in writing herein to the contrary,
Seller shall not be deemed to have assumed the risk of any of the above
circumstances. In such event, Seller shall be entitled to compensation on an
equitable basis for any benefit received by Buyer in retaining non conforming
software or utilizing non conforming services.
ARTICLE XV - INSOLVENCY OF BUYER
If Buyer takes any action to make Seller believe Buyer may become
bankrupt or insolvent, ceases business, or to pay bills during the term of
this Contract, Seller may forthwith terminate this Contract upon written
notice thereof to Buyer. Such termination shall not prejudice Seller's
rights to any amounts then due under this Contract or effect any other rights
Seller may have under applicable provisions of controlling law.
ARTICLE XVI - DEFAULT
A. An Event of Default on the part of either party shall exist if:
1. Such party fails to pay the other party any amount required to be
paid hereunder when due and payable;
2. Such party fails to perform any other material obligation required
to be performed by it under any provisions of this Contract, or fails to
initiate corrective action within thirty (30) days after receiving notice
from the other party that such performance has become due.
B. Subject to other provisions hereof which expressly limit the remedies
available hereunder, if an Event of Default, as defined in paragraph A above,
exists on the part of either party, then the other party may continue
performance and seek a resolution of any disputed performance according to
Article XIX, or the other party may terminate this Contract upon giving
written notice of termination and pursue any other remedies available at law
or in equity.
C. Failure by either party to insist upon strict performance of any
provision of this Contract by the other party shall not be deemed to be a
waiver by such party of its rights or remedies, or a waiver by it of any
subsequent default by the other party in the performance of or compliance
with any of the terms of this Contract.
ARTICLE XVII - ASSIGNMENT
A. Neither party shall, without the consent in writing of the other party
assign or transfer this Contract or the benefits or obligations thereof or
any part thereof to any other person other than a subsidiary wholly owned by
the party, provided that this shall not affect any right of TRW to assign,
either absolutely or by way of charge, any moneys due or to become due to it
or which may become payable to it under this Contract.
B. No assignment or transfer of any right or duty hereunder by either party
shall constitute a novation or otherwise release or relieve such party of its
obligations hereunder.
C. The provisions of this Agreement shall be binding upon and inure to the
benefits of Seller and Buyer and their respective successors and assigns. In
the event either party foresees a successor situation developing, the other
party shall
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be notified in writing. 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 herein.
ARTICLE XVIII- NOTICES
Any notices required to be given hereunder shall be given in writing at the
address of each party herein set forth or to such other address as either party
may substitute by written notice to the other.
If to Buyer:
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Computerized Thermal Imaging, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Seller:
TRW Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SBCA/200
ARTICLE XIX - GOVERNING LAW - ARBITRATION
All questions concerning the validity and operation of this Agreement
and the performance of the obligations imposed upon the parties hereunder
shall be governed by the laws of the State of California, United States of
America.
Any dispute between the parties arising out of or related to
this Contract (or any Statement of Work or other document executed related to
this Contract) shall be resolved by binding arbitration held in Ogden, Utah,
in accordance with the rules and procedures of the American Arbitration
Association ("AAA"). Either party may deliver to the other a written dispute
notice setting forth a description of the issue(s). Appropriate
representatives of both parties will negotiate in good faith within ten (10)
days to resolve the dispute. If the parties are unable to resolve the
dispute within ten days, either party may notify the AAA and the other party
of a statement of claim to initiate arbitration. The purpose of arbitration
is to promptly resolve all disputes, including any cost or fee dispute or
resolution of any equitable adjustments or determination of reasonable
charges which may arise during the course of continued performance, because
the parties have agreed to identify work to be performed as the term of the
contract progresses and that all costs and charges shall be reasonable. The
AAA shall be the appointing and administrative authority applying its
supplemental and procedural rules unless the parties agree on other
procedures. If the parties cannot mutually select an arbitrator reasonably
acceptable to both parties with five (5) days of such notice, AAA shall
identify three independent candidates for selection as the sole arbitrator,
allowing each party an opportunity to strike one. The arbitrator shall
adhere to deadlines for a prompt resolution.
ARTICLE XX - TAXES
Any direct taxes (including stamp, and turnover taxes but excluding
income taxes), duties, fees, charges, or assessments of any nature levied by
any governmental authority in connection with the work of this Contract,
whether levied against Buyer or TRW, shall be for Buyer's account and shall
be paid directly by Buyer to the governmental authority concerned.
ARTICLE XXI - CONTRACT MANAGEMENT
A. Each party's Contract Manager for this Contract shall be designated in
writing. Either party may, by written notice to the other, change such
Contract Manager at any time. At the commencement of this Contract, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ is the Contract Manager for CTI, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is the Contract
Manager for TRW.
B. No request, notice, authorization, direction or order received by the
Seller shall be binding upon Seller, or serve as a basis for adjusting the
price, or other provision of the Contract unless issued or confirmed in
writing by the Buyer's
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named Contract Manager. Buyer's Contract Manager shall codify into the
Contract out of scope or over and above activities required by the Buyer's
Program or Technical Representatives. The Seller shall immediately notify,
in writing, the Buyers Contract Manager whenever a change request has been
received from a representative of Buyer other than the Contract Manager which
would affect the terms and conditions, estimated cost, fee, Statement of Work
or Schedules of this Contract.
C. Only TRW's designated Contract Manager or a more senior contracting
individual within the Company is authorized to contractually obligate TRW.
ARTICLE XXII - NOTICE OF DELAY
Whenever any actual or potential event is delaying or threatening to
delay delivery of the equipment or performance of the services under this
Contract, Seller shall give expeditious notice thereof.
ARTICLE XXIII - REPORTS
The Seller shall furnish reports of cost incurred and the progress of
performance monthly. Cost reports shall be submitted within seven (7) days
after the close of TRW's accounting month. Progress reports shall be
submitted as of the end of each calendar month so as to reach Buyer by the
7th day of the following month.
ARTICLE XXIV - INTELLECTUAL PROPERTY RIGHTS AND NEW TECHNOLOGY AND DATA RIGHTS
[REDACTED DUE TO CONFIDENTIALITY: CONTAINS INDUSTRY
SENSITIVE OR INTELLECTUAL PROPERTY PROVISIONS.]
ARTICLE XXV- PATENT INFRINGEMENT
A. TRW shall indemnify Buyer against all actions, claims, demands, costs,
legal fees, charges, and expenses arising from or incurred by reason of any
infringement or alleged infringement of United States letters patent, design,
or copyright, by the use of any Intellectual Property supplied by TRW but
such indemnity shall not cover any use of the products other than for the
purpose indicated by or reasonably to be inferred from this Contract or to
any use which constitute an infringement due to the use of any such products
or software in association or combination with any other products not
supplied by TRW under such combination is designed by services of TRW.
B. In the event of any claim being made or action brought against Buyer
arising out of the matters referred to in this Article, TRW shall be promptly
notified thereof and may at its own expense conduct all negotiations for the
settlement of the same, and any litigation that may arise therefrom. Buyer
shall not, unless and until TRW shall have failed to take over the conduct of
the negotiations or litigation, make any admission which might be prejudicial
thereto. The conduct by TRW of such negotiations or litigation shall be
conditional upon TRW having first given to Buyer such reasonable security as
shall from time to time be required by Buyer to cover the amount ascertained
or agreed or estimated, as the case may be, of any compensation, damages,
expenses, and costs for which Buyer may become liable. Buyer shall, at the
request of TRW, afford all available assistance for the purpose of contesting
any such claim or action, and shall be repaid all reasonable expenses
incurred in so doing.
C. The foregoing indemnity shall not apply to software products thereof
made to the specification or design of Buyer, or to any claim of patent
infringement which is based upon the combination of any part of the products
with other equipment, except equipment acquired from TRW.
D. The foregoing states the entire liability of TRW with respect to
infringement of patents by the products or any part thereof or by operation
thereof.
ARTICLE XXVI - CHANGES
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A. Any changes to this Contract after the effective date hereof which
relate to (i) the deletion of work, (ii) adding additional services, (iii)
changing or modifying work, or (iv) making other changes which do not
materially alter the scope of this Contract shall be made in accordance with
the procedures set forth in this ARTICLE XXVI.
B. Either party hereto may, from time to time, and at any time during the
term hereof request a change, as defined in this Contract. (The party
requesting the change is hereinafter referred to as the "Requesting Party.")
Requests for changes or deletion shall be in writing, and shall be addressed
and delivered to the Notified Party. Such writing shall be identified as a
"Contract Change Request" (CCR), shall carry a sequential number for ease of
tracking, shall set forth in detail the nature of the change requested, and
shall identify the item or service to be changed.
C. When TRW is the Requesting Party, TRW shall submit a proposal for
equitable adjustment to the Contract Estimated Cost, schedule, or other
affected Contract provision. When the Requesting Party is CTI, a proposal
for equitable adjustment to the Contract will be submitted promptly after
receipt of copies of the CCR. The parties shall, as necessary, negotiate the
change and establish any equitable adjustment to the Contract.
D. If the parties decide to implement a change request, a Contract Change
Notice ("CCN") shall be prepared, which shall describe the change, delineate
the Estimated Cost, schedule, and other impacts of the change. Execution of a
CCN by both parties, shall constitute a modification hereof and shall be
binding on both parties hereto. TRW shall not proceed on any change until a
CCN has been issued.
E. Substitutions of products which are purchased items not manufactured by
TRW may be made by TRW without the consent of Buyer if such substitutes are
of like function and quality and of lower delivered cost.
XXVII - MODIFICATION AND WAIVER
No cancellation, modification, amendment, deletion, addition, or other
change in the 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.
XXVIII - SEVERABILITY
Any provision hereof prohibited by or unlawful or unenforceable under
any applicable law of any jurisdiction shall as to such jurisdiction be
ineffective without affecting any other provision of the Contract. To the
full extent, however, that the provisions of such applicable law may be
waived, they are hereby waived, to the end that the Contract be deemed to be
a valid and binding agreement enforceable in accordance with its terms.
XXIX - COUNTERPARTS
This Contract has been executed in several counterparts, each of which shall
be deemed to be an original, and all such counterparts together shall
constitute but one and the same instrument.
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XXX - REMEDIES
Unless otherwise expressly provided herein, the rights and remedies
hereunder are in addition to, and not in limitation of, other rights and
remedies under the Agreement, at law or in equity, and exercise of one right
or remedy shall not be deemed a waiver of any other right or remedy.
XXXI - PROPRIETARY INFORMATION AND NON-DISCLOSURE
A. During the term of this Contract, TRW and CTI, to the extent of each
party's contractual and lawful right to do so, shall exchange such
proprietary technical and other information as is reasonably required for
each to perform its obligations hereunder. The disclosing party without
consent shall be liable for special or consequential damages. TRW and CTI
each agree to keep in confidence and prevent the disclosure to any person(s)
outside their respective organizations or any person(s) within their
organizations not having a need to know, all information received from the
other which is in writing and designated by appropriate stamp or legend to be
of a proprietary nature and to use such information only in connection with
their obligations under this Agreement; provided, however, that neither party
shall be liable for actual special or consequential damages for disclosure or
use of such data if the same is:
1. In the public domain at the time of disclosure, or is subsequently
made available to the general public without restriction by the disclosing
party;
2. Known to the receiving party at the time of disclosure without
restrictions on its use or independently developed by the receiving party,
and there is adequate documentation to demonstrate either condition;
3. Used or disclosed inadvertently despite the exercise of the same
degree of care that each party takes to preserve or safeguard its own
proprietary information;
4. Used or disclosed with the prior written approval of the
non-disclosing party;
5. Disclosed without restriction to the receiving party from a source
other than the disclosing party;
6. Used or disclosed after a period of three (3) years after the date
of receipt.
B. No sheet or page of any written material will be so labeled which is
not, in good faith, believed to contain Proprietary information. A recipient
of information hereunder will have no obligation with respect to any portion
of any written material which is not so labeled, or any information received
orally unless a written summary of such oral communication, specifically
identifying the item s of Proprietary information, is furnished to the
recipient within fifteen (15) days.
C. If any portion of a party's Proprietary information falls within any one
of the above exceptions, the remainder shall continue to be subject to the
foregoing prohibitions and restrictions.
D. To be determined.
XXXII - SYSTEM INTEGRATION RIGHTS
[REDACTED DUE TO CONFIDENTIALITY: CONTAINS INDUSTRY
SENSITIVE OR INTELLECTUAL PROPERTY PROVISIONS.]
XXXIII - BUYER FURNISHED FACILITIES, SOFTWARE AND PROPERTY
A. Title to all facilities, software and property furnished to Seller by
Buyer (or Buyer's customer or Contractor) or paid for by Buyer shall remain
with Buyer (or Buyer's customer). Seller shall not alter or use such
property for any purpose other than that specified by Buyer without the prior
written consent of Buyer. Seller shall keep adequate records, which shall be
made available to Buyer upon request, and shall store protect, preserve,
repair, and maintain such property
10
in accordance with sound industrial practice. In the event that Buyer's
property becomes lost or damaged through negligence or willful misconduct by
Seller, its employees, agents, or subcontractors, while in Seller's
possession, Seller agrees to replace (if lost or irreparable) or repair such
property, without increase to the Cost or Fee, at Seller's option. At the
completion of delivery of the goods and services ordered by Buyer in this
Contract for which Buyer's software or property were required, or the
termination of this Contract, Seller shall request disposition instructions
for all such Buyer's software and property, and for all source codes and
tools and documentation required to fully use the New Technologies, or the
remainder thereof. Seller agrees to make such software and property
available to Buyer at Buyer's request, in the manner requested by Buyer.
B. If the aforementioned Buyer-owned facilities, software or property are
increased or decreased, or do not remain available during the performance of
this Contract, or if any change is made in the terms and conditions under
which they are made available to the Seller, an equitable adjustment as may
be appropriate shall be made in the terms of this Contract.
C. CTI agrees to provide TRW with the items identified in the Statement of
Work.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Contract to be
effective as of the day and year first above written.
TRW Inc. Computerized Thermal Imaging, Inc.
Systems Integration Group
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President and General Manager President
Strategic Systems Division
Date: 10/25/96 Date:
11
APPENDIX A
STATEMENT OF WORK
[REDACTED DUE TO CONFIDENTIALITY: CONTAINS INDUSTRY
SENSITIVE OR INTELLECTUAL PROPERTY PROVISIONS.]
12
CONTRACT CHANGE NOTICE
Issued by: CONTRACT NO. TRW-96-002
CHANGE NOTICE NO. 001
Computerized Thermal Imaging, Inc.
515 Pocahontas EFFECTIVE DATE THIS CHANGE:
Ft. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 16 December 1996
Issued to:
TRW Inc.
Strategic Systems Division
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
In accordance with ARTICLE XXVI(D) Changes, TRW is hereby authorized under
the terms of this contract to begin the commercialization development and at
least one pilot installation, in accordance with the statement of work
revision 1.0 dated 22 October 1996. The incremental funding of the contract
is increased, and ARTICLE VI(D) is modified as follows:
ARTICLE VI - ESTIMATED COST, AND FEE
D. Authorized funding to this Contract is $4,700,000, which is estimated to
cover the Cost and Fee for all work to be performed from 10 October 1996
(Letter Contract) through 31 December 1997, subject to addition or deletion
of services of any magnitude or other changes according to Article XXVI
Changes. In the event the total funding available is insufficient to
complete all work authorized within the applicable period. Seller shall
notify Buyer in writing and shall not be obligated to perform any unfunded
work until the authorized funding is increased to the amount required to
complete the work. In the event the Contract is fully funded and the
Estimated Cost in insufficient to complete all work required by the Statement
of Work, Seller shall notify Buyer in writing and shall not be obligated to
perform further work until the Estimated Cost and authorized funding are
increased to new values agreed by the parties.
All Terms, Conditions and Provisions of the original Subcontract, as amended,
remain unchanged, except as specifically noted herein.
Computerized Thermal Imaging, Inc.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇.▇. ▇▇▇▇▇▇
President & COO
DATE: 1/30/97
--------------------
