Indicates that a confidential portion of the text of this agreement has been omitted pursuant to a request for confidential treatment which has been separately filed with the Securities and Exchange Commission. Supply Agreement Contract
Exhibit
10.2
[***]
Indicates that a confidential portion of the text of this agreement has been
omitted pursuant to a request for confidential treatment which has been
separately filed with the Securities and Exchange Commission.
Supply
Agreement Contract
This
Supply Agreement is made this 3rd day of Jan., 2006, by and between Emirates
Simulation Academy, a LLC established under the laws of the United Arab Emirates
and having offices at Abu Dhabi (Customer) and GSE Power Systems, Inc.
established under the laws of the state of Delaware, USA and having offices
at
9189 Red Branch Road, Columbia MD, USA (GSE) for the supply of the Simulators,
Training Programs, and Technology Transfer Program for the Emirates Simulation
Academy, LLC UAE (ESA) to be constructed in Abu Dhabi, UAE.
1.
SCOPE OF SUPPLY & CONTRACT DOCUMENTS:
GSE
shall perform all of services and deliveries for hardware, software, firmware,
technical data, and/or services ("Goods") as described herein and a part of
this
Contract. This Contract consists of:
| a. |
GSE
License and technology Transfer Agreement which is made a part of
this
Contract as Attachment 1.
|
| b. |
These
terms and conditions
|
2.
LICENSE AGREEMENTS:
As a
condition precedent to GSE’s obligations to deliver GSE Software, Customer
agrees that, prior to shipment, it will execute the appropriate GSE Software
License Agreement and any other third party software licenses that may be
required for software, documentation and firmware supplied. The License
Agreement is provided as Attachment 1 hereto.
3.
CHANGE ORDERS:
The
prices for any extras or changes to the scope of work (in the Offer or as agreed
upon by the parties in writing) or modifications to the payment or performance
schedule, will be agreed upon in writing before either party will be obligated
to proceed with such changes. Performance of any change will not waive any
claims for equitable adjustment in price and/or schedule.
4.
SHIPMENT AND DELIVERY:
A.
TRANSPORTATION: Unless otherwise specified, all prices are based on delivery,
installation, and testing at the ESA facility in Abu Dhabi, UAE. Title (other
than for licensed materials) and risk of loss will pass from GSE to Customer
upon delivery.
B.
RISK
OF LOSS: Insurance coverage of GSE Goods at Customer's site prior to final
acceptance, or of Customer's equipment at GSE’s site, will be provided by the
party having custody and control of the Goods regardless of the delivery
term.
C.
DELIVERY SCHEDULE: Schedule dates will be agreed on by the parties and are
contingent upon prompt receipt by GSE of all necessary approvals, information,
and software licensing agreements on such dates or with such lead times as
may
be specified by GSE. GSE will use reasonable efforts to achieve the schedule
dates.
D.
PACKING AND CRATING: Goods will be packed in accordance with GSE’s standard
commercial practice.
E.
SHIPPING: GSE must have complete shipping instructions and documentation
requirements from Customer at least thirty (30) days prior to shipment. GSE
will
use the freight forwarder of its choice unless Customer names an acceptable
freight forwarder.
F.
SHIPMENT DELAYS: If shipment of Goods is delayed at the request of, or due
to
acts or omissions of Customer, GSE may store such Goods in any commercially
reasonable manner at Customer's sole risk and expense. Any payments that would
be due GSE, had such Goods been shipped as scheduled, will be considered due
and
owing, and GSE may invoice Customer on schedule.
1
5.
ON-SITE SERVICES:
A.
TRAVEL
AND LIVING ("T&L"): Included in Offer Price
B.
WORKING CONDITIONS: GSE reserves the right for its personnel to refuse to work
under hazardous conditions. The parties will reach agreement on the hazardous
situation prior to beginning such work. Necessary staging and rigging will
be
erected by, and at the expense of, Customer. GSE personnel will comply with
reasonable plant safety regulations where applicable. Customer will provide
any
required protective clothing or equipment.
C.
TECHNICAL SUPPORT. Unless otherwise mutually agreed, GSE is responsible for
receiving, inspecting, storing, wiring, piping, installing, testing,
commissioning and start-up of the Goods.
6.
PRICE & PAYMENT TERMS.
The
Total
Contract Price for Software and Labor: $15,117,905 USD which
includes:
| a) |
Five
(5) Training Simulators, specified
below
|
| b) |
Training
Program Design
|
| c) |
Simulator
Training Programs
|
| d) |
Classroom
Instruction & Online Courses
|
The
hardware portion, priced separately, may be exercised at the option of ESA:
$1,458,000 USD which includes:
| a) |
The
computer systems and DCS systems for the five (5) Training Simulators,
specified below.
|
[***]
7.
TAXES:
GSE
shall be responsible for the payment of all present and future taxes, duties,
tariffs, fees and other charges imposed on GSE by the U.S. Government or any
U.S. agency thereof with regard to GSE’s undertakings hereunder. Customer shall
be responsible for the payment of all other present and future taxes, duties,
tariffs, fees and other charges imposed on Customer or GSE by any governmental
authority or agency thereof including, but not limited to, any taxes, duties,
tariffs, fees or other charges imposed on GSE by Customer’s government or any
agency thereof.
8.
CUSTOMER INFORMATION:
Customer
will provide GSE with accurate and complete information regarding Customer's
processes and requirements in order to permit GSE to successfully undertake
and
complete the work. Where Customer information is incomplete or incorrect,
resulting in delay or extra work, GSE is entitled to adjustment by change
order.
9.
DOCUMENT APPROVAL:
GSE may
request that the Customer review documents developed by GSE for conformity
with
Customer requirements/ specifications. Unless Customer advises GSE otherwise
in
writing within thirty (30) days after submission, GSE may consider the documents
approved and
proceed
with work. Changes thereafter, made at the direction of Customer, will entitle
GSE to adjustment by change order.
2
10. PROVISIONAL
ACCEPTANCE:
Provisional acceptance occurs at completion of the on-site acceptance testing
at
the Customer facility. Final Acceptance occurs after the successful completion
of the warranty period described in Section 11. After final acceptance,
Customer's sole and exclusive rights and remedies for any nonconformity are
under the warranty provision provided herein.
11. WARRANTY:
GSE
warrants that Goods will conform in all material respects to applicable GSE
specifications. Services will be performed in a workmanlike manner and will
conform to Customer-approved drawings and documents submitted by GSE. Unless
otherwise specified, the warranty period is one (1) year from date of on-site
acceptance for systems and GSE Software, and ninety (90) days from (i) receipt
for spares and upgrades and (ii) completion of services. Warranty of third
party
products is offered on a pass through basis unless otherwise
specified.
A.
RETURN
TO FACTORY: GSE will, at its option and expense, repair or replace any portion
of the Goods that does not conform to the warranty for which GSE is given
written notice during the warranty period. Any Goods will be returned to GSE,
DDP GSE’s facility.
B.
EXCLUSIONS: Repairs and replacements caused by inadequate preventive
maintenance, normal wear and usage, fault of Customer or others, power sources
supplied by others, attachments, features, or devices not specifically
authorized in writing by GSE, unauthorized modifications or alteration of
hardware, software or firmware, unsuitable environmental conditions or improper
software loading, are expressly excluded from warranty coverage. Unauthorized
modifications void the warranty for any affected portion of the
system.
C.
This
warranty is the only warranty made by GSE and is the exclusive remedy of
Customer for defects in Goods. It will not be affected by, and no obligations
or
liability will arise from, GSE’s rendering of technical or other advice or
service in connection with the Goods. GSE
MAKES NO OTHER WARRANTIES OR CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR PARTICULAR PURPOSE.
12.
FORCE MAJEURE:
Neither
party shall be liable for delays, interruptions or failures in performing its
obligations arising from any act, delay or failure to act in the issuance of
permits or licenses, or arising out of or in connection with acts of God, acts
of the government in either its sovereign or contractual capacity, war,
accidents or disruptions such as fire, explosion or equipment breakdown, labor
difficulties including strikes or slowdowns, or any other cause beyond its
reasonable control and without its fault or negligence. The party experiencing
the force majeure will notify the other party promptly.
13.
CUSTOMER SUSPENSION & DELAY:
Retaining all other rights or remedies, if GSE’s performance is delayed by
Customer's suspension of work, in whole or in part, or by any act or omission
of
Customer, the time for performance will be extended by the period of time
required by GSE to return to the state of performance that existed before the
delay. If the delay or suspension continues for sixty (60) days or more, GSE
has
the right to cancel or renegotiate the Contract. Customer will pay an equitable
adjustment based on a claim submitted by GSE for all reasonable costs, damages
and expenses incurred by GSE incident to the delay or suspension.
14.
TERMINATION:
In the
event of a material breach, if a cure has not been completed or at least
satisfactorily commenced within thirty (30) days of receiving written notice
detailing the breach or failure, the non-breaching party, by written notice
to
the breaching party, may terminate this Contract. Customer's wrongful
termination or purported termination will be considered a material breach.
GSE
may, by written notice to the Customer, at any time, and without prejudice
to
any other rights or remedies provided by law or contained herein, suspend
performance of this Contract if Customer has failed to make payments due after
ten (10) days written notice. Prior to any resumption of work, GSE and Customer
will agree upon a change order for any adjustments to the performance dates,
payment schedule and price that result from the suspension.
15. LIMITATION
OF LIABILITY: GSE’s
and
GSE’s licensors’ maximum liability to Customer and any third party, and
Customer's exclusive remedy for any cause whatsoever, regardless of the form
of
action, in contract or in tort, including negligence, will be limited to the
recovery of actual damages up to any amounts paid by Customer with respect
to
the Contract. Notwithstanding the above, Customer and GSE will be liable to
each
other for personal injuries caused by the liable party's fault, or the fault
of
its employees, contractors, and agents during work performed at Customer's
premises. NEITHER
PARTY WILL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
3
16.
NOTICE:
Whenever
these Terms provide for the giving of notice, such notice will be sent in
writing to the other party. Notices will be delivered personally, by facsimile
transmission, or by prepaid registered or certified mail and will be deemed
to
be duly served if personally delivered or by facsimile transmission, at the
time
of delivery, or, if delivered by prepaid registered or certified mail, three
(3)
days after posting thereof.
17.
COMPLIANCE
WITH LAWS:
Customer
will secure or pay for any registration, licenses, permits, or other
requirements of any governmental bodies applicable to Customer's industry or
location. Any cost or expenses incurred by GSE in meeting such requirements
will
be charged to Customer.
18.
CHOICE OF LAW/JURISDICTION: This
Contract will be governed by the laws of the Emirates of Abu Dhabi and the
Federal Laws of United Arab Emirates.
19.
LANGUAGE:
The
English language shall be controlling in all respects. No translation of this
Contract shall be of any force or effect in contract interpretation or
determination of intent.
20.
EXPORT CONTROL:
The
Goods may require a validated license from the U.S. government before export
or
reexport. Customer will comply with all applicable export control laws and
assures GSE that, without prior government authorization, it will not knowingly
export or reexport, directly or indirectly, any Goods to any recipient,
destination or country to which such export or reexport is restricted or
prohibited, or for activities related to the design, production, or use of
missiles or chemical or biological weapons. Customer will obtain licenses
required for its own export or reexport of Goods.
The
Customer will assist GSE in obtaining necessary information for any required
export licenses, clearances or registrations. Customer will obtain any necessary
import certificate in sufficient time for GSE to export on schedule. The
granting of all required import or export licenses is a condition precedent
to
GSE’s delivery. GSE will have no liability to Customer if any licenses or
approvals are denied.
21.
ASSIGNMENT:
Neither
party will assign or otherwise transfer all or any portion its rights or
obligations hereunder without the advance written consent of the other party.
22.
GENERAL: No
modification of any term or condition will be effective unless in writing and
signed by the parties. Invalidity of any Term, in whole or in part, will not
affect the validity of any other Term. Any failure to enforce any of these
Terms
will not constitute a waiver.
23.
INDEPENDENT CONTRACTORS: The
performance of all obligations under the Contract shall be by the parties as
independent contractors and not as agents or partners of the other
party.
24.
APPOINTMENT OF REPRESENTATIVES: Each
party shall designate a representative authorized to receive notices and to
act
on its behalf and, when necessary, shall designate at least one alternate person
to whom all communications shall be directed.
25.
CONFIDENTIALITY: Each
party agrees to keep confidential any information which the other party
identifies as Confidential Information. The receiving party shall not disclose
any such Confidential Information to a third party without the disclosing
party’s prior written consent. GSE will ▇▇▇▇ as confidential or proprietary any
Confidential Information provided to Customer. All such Confidential Information
shall be kept in confidence by Customer and shall not be disclosed to third
parties without GSE’s prior written consent, unless Customer deems such third
parties to require the Confidential Information for the effective performance
of
the Contract and such third parties agree to protect GSE’s Confidential
Information consistent with this provision.
4
26.
DEFINITIONS: (a)
The
term “GSE Software” means the Software developed by GSE and described in the
applicable Scope of Work or applicable Software License Agreement. (b) The
term
“Confidential Information” is defined as all non-public data or information that
the disclosing party desires to protect from unrestricted disclosure or
competitive use. Confidential Information shall include, but is not limited
to,
technical data, designs, know-how, trade secrets, drawings, software source
code, and business information (including sales, financial, customer, or
contractual information) that is designated in writing as proprietary or
confidential, or, if orally disclosed, is confirmed in writing within thirty
(30) days of such oral disclosure.
27.
OWNERSHIP: The
GSE
Software is protected by U.S. copyright laws and international treaty
provisions. All GSE Software, including any derivatives or improvements thereof,
is owned by GSE.
28.
OPTIONS: The
Desalination simulator will be constructed in UAE with local engineers under
GSE
management and training as part of the Technology Transfer Program, the cost
savings will be deducted from the total contract price.
The
Desalination simulator hardware portion and other potential hardware components
that may be purchased in UAE that do not affect delivery schedules, will be
passed on to ESA.
29.
ENTIRE AGREEMENT:
This
Contract, including all attachments and documents hereto and incorporated herein
by reference, constitutes the entire agreement between the parties and
supersedes all prior proposals, agreements, understandings and negotiations,
oral and written, and any printed terms on Orders or invoices issued previously
or in the future, concerning the matters specified herein. No course of dealing
or usage of trade or course of performance may be used to add to or amend the
plain meaning of this Contract.
Agreed
to by:
Emirates
Simulation Academy: Emirates
Simulation Academy:
BY:
_/s/
Salah
Elshamsi ____ BY:
__/s/
▇▇▇▇▇ ▇▇▇▇▇▇ ______
NAME:
Salah
Elshamsi_____ NAME:
_Tayeb
Kamali_______
TITLE:
_Chairman_________ TITLE:
_Vice
Chairman______
DATE:
_Jan. 3, 2006________ DATE:
_ Jan. 3, 2006_______
Emirates
Simulation Academy: GSE
Power
Systems, Inc.:
BY:
__/s/
Hal Paris_________ By:____/s/
▇▇▇▇ ▇. Moran____
NAME:
_Hal
Paris_________ NAME:__John
V. Moran_____
TITLE:
__ESA
Directors_____ TITLE:__CEO_____________
DATE:
__Dec. 1, 2005_______ DATE:__Dec.
1, 2005 _______