Exhibit 10.2
*** CONFIDENTIAL TREATMENT
------------------------
The material marked by asterisk ("***") on attached pages have been omitted from
the filed copy of this Agreement in connection with Transbotics Corporation
confidential treatment request.
SUBCONTRACT AGREEMENT
---------------------
THIS AGREEMENT, effective the 4th of June 2003,is between *** , having an office
at *** (hereinafter "***" or "Buyer") and TRANSBOTICS CORPORATION. (hereinafter
"TRANSBOTICS", "Seller", or "Contractor"), through its location at 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, XX, 00000-0000.
WHEREAS, *** is in the business of ***; and
WHEREAS, TRANSBOTICS is in the business of manufacturing
automatic guided vehicles and systems; and
WHEREAS, ***'s , and TRANSBOTICS entered into a Development
Agreement (No. 281-01-73) for the design, manufacture and delivery of certain
automatic guided vehicles as described therein, and
WHEREAS, *** desires to obtain a Product (developed
under Agreement 281-01-73) to further its *** business; and
WHEREAS, Contractor desires to provide additional Products
with modified design; and
===
WHEREAS, Contractor needs to place purchase orders with third
parties for certain long lead time components for the additional Products.
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth herein, Contractor and *** do agree as follows:
ARTICLE 1 - DEFINITIONS
------------------------
As used herein, the following terms shall, unless otherwise
expressly noted herein, have the indicated meanings thereof.
"Affiliate" shall mean as to any Person, any other Person
directly or indirectly controlling, directly or indirectly controlled by, or
under direct or indirect common control with such Person. For purposes of this
definition, the term "control" (including the correlative meanings of the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
"Confidential Information" shall mean any and all
confidential, or trade secret information, material, or data of *** or
TRANSBOTICS and any derivatives, portions, or copies thereof, whether in oral,
written, visual, graphic, electronic, machine recognizable, or other form or
medium, including, but not limited to, information resulting from or in any way
related to (i) the business affairs, property, methods of operation, future
plans, financial information, customer or supplier information, or other
business, technical or other data of *** or TRANSBOTICS, (ii) the developments,
systems, discoveries, ideas, concepts, improvements, inventions, patent
applications, designs, drawings, specifications, techniques, data, software,
documentation, research, products, processes, procedures, "know-how", or other
works of *** or TRANSBOTICS, (iii) any information or material that *** or
TRANSBOTICS designates in writing to be Confidential Information or contains a
label or legend indicating that it is confidential, proprietary, or trade secret
information or material, and (iv) any Developments and Deliverables
23
under this contract.
"Data" shall mean recorded information, such as but not
limited to writings, drawings, recordings and pictorial representations,
regardless of form or the media on which it may be recorded.
"Deliverables" shall mean the goods, drawings, items,
components, processes, Data, products, information, software, documentation,
systems or other works or materials to be provided by Contractor to *** as set
forth in the Statement of Work (attached as Exhibit A to this Agreement).
"Developments" shall mean any and all developments, systems,
trade secrets, discoveries, ideas, concepts, improvements, inventions, items,
components, innovations, designs, drawings, specifications, techniques, data,
software, documentation, research, products, processes, procedures, services,
"know-how", or other works, or any portion thereof, and all drafts thereof,
whether or not patentable or copyrightable, in whole or in part made,
discovered, invented, conceived, first reduced to practice, designed, developed,
or contributed to by Contractor, directly or indirectly, either alone or jointly
with others, during the term of this Agreement resulting from, arising out of,
or in any way related to (i) the use of any of ***'s Confidential Information,
equipment, facilities, personnel, time, or money, (ii) the production or
delivery of the Deliverables, or (iii) the performance of the Work. All
Developments shall be deemed to be a part of the Confidential Information for
all of the purposes of this Agreement.
"Period of Performance" shall mean the time during which
Contractor shall perform and complete the tasks specified in the Statement of
Work attached as Exhibit A to this Agreement.
"Person" shall mean any individual, partnership, corporation,
joint venture, unincorporated association, government department or agency, or
other entity.
"Product" shall mean an automated guided vehicle, including a
laser guidance system, with an articulated arm. "Purchasing
Representative" shall mean ***'s authorized representative,
whom, for purposes of this Agreement shall
be ***'s Director, Contracts.
"Work" shall mean the activities to be performed by Contractor
as specified in the Statement of Work attached as Exhibit A to this Agreement.
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF CONTRACTOR
Except as otherwise disclosed in this Agreement, Contractor
represents and warrants that it has the full and unrestricted right to carry out
all Work for ***.
ARTICLE 3 - WORK PROGRAM
3.1 Statement of Work
Contractor shall furnish all necessary facilities, labor,
materials, and other services necessary to accomplish the Work and to procure
the Deliverables described in, and in accordance, with the Statement of Work
attached as Exhibit A.
3.2 Term
Contractor shall complete the Work and produce and deliver the
Deliverables in accordance with the Period of Performance specified in the
Statement of Work. This agreement shall continue through ***, or such longer of
shorter period of time as *** and Contractor mutually agree to in writing, or
until such time as either party terminates this Agreement pursuant to Article 8
hereof.
3.3 Technical Direction
Performance of the Work is subject to the technical direction
of the *** Program Manager or his/her duly authorized representatives.
Technical direction shall not, however, assign additional work
under the Agreement, direct a contract change, or increase or decrease the
funding under the Agreement or the Agreement Period of Performance.
24
3.4 Documentation
Specific documentation requirements under this Agreement are
provided for in Exhibit A.
ARTICLE 4 - AGREEMENT TYPE, AGREEMENT AMOUNT, FUNDING, INVOICES, AND PAYMENTS
----------------------------------------------------------------------------
4.1 Agreement Type
This Agreement is a Firm Fixed Price contract.
4.2 Agreement Amount
The total cost for performance of the Work defined in Exhibit
A is ***, which amount shall represent ***'s total liability hereunder, unless
changed by a written modification to this Agreement that is signed by authorized
representatives of both parties.
4.3 Invoices
All payment vouchers shall be delivered to:
***
Each voucher shall show Contractor's invoice number and the *
** Agreement number.
4.4 Payment
A payment milestone has been established and is set
forth below. Payment to the Contractor is contingent upon completion of the
milestone activity or delivery of the milestone items, whichever is applicable.
A separate invoice shall be submitted by Contractor for milestones completed.
Conditioned upon satisfactory performance of Contractor's obligations hereunder,
*** will pay the approved amounts of Contractor's proper invoices and vouchers
within thirty (30) days after ***'s receipt thereof at the aforementioned
address.
Milestones Amount
---------- -------
***
--------------------------------------------------------------------------------
Invoice for delivery of initial milestone items shall reflect a deduction of the
initial payment of *** until entire $*** has been accounted for. ***' total
liability under this Agreement is $***.
25
Payment of Contractor's interim payment vouchers shall be sent to:
TRANSBOTICS
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
*** will have no direct or indirect obligation to pay,
reimburse or otherwise bear any rates, costs, expenses or other charges or
amounts whatsoever, except as agreed to herein; it being understood that all of
Contractor's work shall be performed by Contractor at Contractor's sole cost,
risk and expense, except as otherwise expressly agreed to in writing.
ARTICLE 5 - INSPECTION AND ACCEPTANCE
5.1 *** may inspect all Work at reasonable times and places, including when
practicable, during manufacture and before shipment. *** shall provide
all information, facilities, and assistance necessary for safe and
convenient inspection without additional charges.
5.2 No such inspection shall relieve Contractor of its obligations to
furnish all Work in accordance with the requirements of this Agreement.
***'s final inspection and acceptance shall be at destination, which
shall be at the Contractor's facility.
5.3 If Contractor delivers non-conforming Work, *** may; (i) accept all or
part of such Work at an equitable price reduction; (ii) reject such
Work; or (iii) require Contractor to tender conforming Work.
5.4 Contractor shall not re-tender rejected Work without disclosing the c
orrective action taken.
ARTICLE 6 - CONFIDENTIALITY OF INFORMATION; PROTECTION AND SECURITY
-------------------------------------------------------------------
6.1 The Parties hereto shall hold in confidence, and withhold from third
parties, any and all Proprietary Information disclosed by one party to
the other, and shall use Proprietary Information of the other party
only for the purpose(s) stated herein and for no other purpose unless
the originating party shall agree in writing. Each party agrees to
safeguard from theft, loss and negligent disclosure the other party's
Proprietary Information received pursuant to this Agreement by
utilizing the same degree of care as the receiving party utilizes to
safeguard its own Proprietary Information, of a similar character, from
theft, loss and negligent disclosure, but not less than reasonable
care, and to limit access to Proprietary Information to those officers,
directors, and employees within the receiving party's organization who
reasonably require such access to accomplish the aforesaid purposes.
6.2 "Proprietary Information" shall include confidential information,
source code, object code, software products, hardware products and ***
and Subcontractor technology taken together collectively. Proprietary
Information also includes, in whole or in part, information concerning
the Parties' sales, sales volume, sales methods, sales proposals,
customers and prospective customers, identity of customers and
prospective customers, identity of key purchasing personnel in the
employ of customers and prospective customers, amount or kind of
customers' purchases from the Parties, the Parties' sources of supply,
the Parties' computer programs, source code, systems design, system
documentation, special computer hardware and peripherals, product
hardware, related software development, the Parties' manuals, formulae,
processes, methods, compositions, ideas, improvements, inventions or
other confidential or proprietary information belonging to either
party.
6.3 Each party agrees the Proprietary Information disclosed by one party to
the other shall be in written or other permanent form, and be
prominently identified as proprietary using an appropriate legend,
marking stamp or other clear and conspicuous written identification
which unambiguously indicates the information being provided is the
originating party's Proprietary Information. Any such information other
than in written or other permanent form when disclosed shall be
considered Proprietary Information hereunder, but only to the extent
identified as the originating party's Proprietary Information at the
time of original disclosure and thereafter summarized in written form
which clearly and conspicuously identifies the Proprietary Information.
26
Such summary shall be transmitted by the originating party to the
receiving party within fifteen (15) calendar days of the non-written
disclosure. Neither party shall be liable for use or disclosure of any
such Proprietary Information if it can establish by contemporaneous,
clear, and convincing written evidence that the same:
a. is or becomes a part of the public knowledge or literature
without breach of this Agreement by the receiving party; or
b. is known to the receiving party without restriction as to further
disclosure when received; or
c. is independently developed by the receiving party without the
use, directly or indirectly, of information received under this
or other obligation of secrecy with the originating party; or
d. becomes known to the receiving party from a third party who had a
lawful right to disclose it without breaching this breaching this
Agreement; or
e. is disclosed by the originating party to a third party, including
the United States Government, without restriction as to further
disclosure.
6.4 Notwithstanding the prohibition of nondisclosure set forth herein, ***
may disclose any Proprietary Information that Contractor has disclosed
to it to the entity that has entered into an agreement with *** to
purchase a complete *** incorporating the Products purchased from
Contractor (the "Customer"), provided such disclosure is during the
term of this Agreement, *** has marked the Proprietary Information with
the appropriate restrictive legend and the Customer has agreed in
writing to observe the same restrictions and safeguards with respect to
the use and disclosure of such Proprietary Information as *** has
undertaken herein, except that such Customer may not, under any
circumstances disclose such Proprietary Information to any third party.
Nothing in this paragraph 6.4 shall be construed to imply or create any
expectation or obligation that Contractor needs to disclose its
Proprietary Information to *** in order to discharge its obligations
hereunder.
6.5 Should the receiving party be faced with judicial or U. S. Governmental
action to disclose Proprietary Information received hereunder, said
receiving party must use reasonable best efforts to legally resist
disclosing the originating party's Proprietary Information, and
promptly notify the originating party. The originating party, at its
option, may join in contesting such disclosure.
6.6 The exclusive points of contact for transmitting and controlling
Proprietary Information disclosed hereunder are designated by the
respective Parties as follows, which may be changed by written notice
to the other:
*** TRANSBOTICS.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
e-mail: xxxxxxxx@xxxxxxxxxxx.xxx
6.7 Both Parties agree to promptly notify the other party of the loss of
any Proprietary Information, and upon request of the originating party,
the receiving party shall surrender any part or all of the Proprietary
Information to the originating party.
6.8 Proprietary Information shall remain the property of the originating
party. Neither this Agreement nor the disclosure of Proprietary
Information hereunder, shall be construed as granting any right or
license under any invention, patent, trademark, or copyright now or
hereafter owned or controlled by either party, nor shall any such
disclosure constitute any representation, warranty, assurance, guaranty
or inducement concerning the infringement of any patent or other rights
of others. No warranty of accuracy or completeness of any Proprietary
Information is provided herein.
6.9 The rights and obligations provided by this Agreement shall take
precedence over specific legends or statements associated with
Proprietary Information when received.
6.10 Upon termination of this Agreement, each party shall stop using all
Proprietary Information furnished hereunder and shall, upon written direction of
the originating party, use its good faith efforts to return to the originating
27
party or destroy all such Proprietary Information, together with all copies made
thereof by the receiving party. Upon request, the receiving party shall send the
furnishing party a destruction certificate. Notwithstanding the other provisions
of this paragraph, each party may make and retain one copy of such Proprietary
Information, but only for archival purposes.
6.11 The receiving party represents and warrants that no technical data
furnished to it by the originating party shall be disclosed in violation of the
International Traffic in Arms Regulations and the Export Administration
Regulations. The receiving party further represents and warrants that technical
data furnished to it by the originating party shall only be exported from the
United States in compliance with the International Traffic in Arms Regulations
and the Export Administration Regulations, including the requirement for
obtaining any export license, if applicable. Notwithstanding any other provision
of this Agreement, the receiving party shall indemnify and hold the originating
party harmless for all claims, demands, damages, costs, fines, penalties,
attorney's fees, and all other expenses arising from the receiving party not
complying with this clause or the International Traffic in Arms Regulations and
the Export Administration Regulations.
6.12 Neither party shall be liable for the inadvertent disclosure of
Proprietary Information to a third party if it is disclosed despite the
exercise of the standard care specified in paragraph 6.1, above,
provided that upon the discovery of such inadvertent disclosure, the
party who inadvertently disclosed promptly notifies the furnishing
party of such, takes all reasonable steps to retrieve the inadvertently
disclosed Proprietary Information, and immediately takes steps to
preclude further disclosure. However, such inadvertent disclosure of
Proprietary Information does not relieve either party from its
continued adherence to the terms and conditions as set forth in this
Agreement. The party who inadvertently disclosed Proprietary
Information shall also exert reasonable efforts to assist the party
whose Proprietary Information was inadvertently disclosed in the
execution of a Proprietary Information Agreement with the third
party(ies) to whom the inadvertently disclosure was made.
ARTICLE 7 - REPORTS, ACCESS TO RECORDS AND PERSONNEL
---------------------------------------------------
7.1 Reports
Contractor, as provided in the Statement of Work or as
otherwise reasonably requested by ***, shall provide to *** written and/or oral
reports in reasonable detail concerning the status and results of the Work.
7.2 Meetings
Contractor employees, consultants or other personnel utilized
in performing Contractor's obligations hereunder this Agreement shall be made
available for meetings with *** personnel at a mutually agreeable time. All
meetings will be held at Contractor's facility. *** and its authorized
representatives may discuss Contractor's efforts relating to this Agreement.
28
ARTICLE 8 - TERMINATION
-----------------------
8.1 Termination for Convenience
*** shall have the right, upon giving ten (10) days
prior written notice to the Contractor, to terminate the Work under Exhibit A to
this Agreement without cause. Any such notice shall specify a termination date
for the termination. If *** terminates the Work under Exhibit A without cause,
Contractor shall take such actions as may be necessary to terminate any Work,
including but not limited to minimizing its costs and liabilities with respect
to terminated Work under this Agreement, to protect, preserve and deliver in
accordance with ***'s instructions, any Deliverables in the Contractor's
possession, custody or control. Contractor shall submit an invoice to *** for
outstanding costs for Work completed at the time of the termination notice. ***
shall reimburse Contractor for its reasonable costs incurred for Work performed
up to the effective date of the termination notice, pay a reasonable profit for
said outstanding costs, plus reimburse Contractor for any costs incurred in
terminating outstanding subcontract commitments.
8.2 Termination for Default
Either party has the right to terminate this Agreement in the
event of a material breach by the other party of the terms of this Agreement,
provided that the terminating party gives the other party written notice of
termination, specifying the grounds therefore, and the other party has ten (10)
days after such notice to cure the breach. If not so cured, this Agreement shall
terminate at the expiration of such (10) day period, unless such period is
extended by mutual agreement.
In the event of termination of this Agreement for default, the
Contractor, shall take such action as may be necessary to terminate any Work,
including but not limited to minimizing its costs and liabilities with respect
to terminated Work under this Agreement; to protect, preserve and deliver in
accordance with ***'s instructions, any Deliverables in the contractor's
possession, custody or control. Contractor shall submit an invoice to *** for
its outstanding costs for Work completed at the time of termination notice. ***
shall pay Contractor a reasonable price for Work completed up to the effective
date of the termination notice including a reasonable profit for said completed
Work.
8.3 Survival of Certain Rights, Obligations, Duties,
and Liabilities
Notwithstanding any termination of this Agreement, each
parties obligations of secrecy and limited use of Confidential Information
(Article 6), Indemnification (Article 17.2), No Infringement (Article 18.2),
Disputes (Article 20), together with any other of Contractor's obligations,
duties, agreements, indemnities, representations, and warranties under this
Agreement as shall have accrued or been incurred prior to the effective date of
termination shall survive any termination of this Agreement.
8.4 Return of Property
Upon termination of this Agreement, Contractor shall return
all property of *** to ***.
ARTICLE 9 - SUBCONTRACTS
------------------------
Contractor may subcontract any portion of the Work provided
that Contractor's agreement with subcontractor provides at least the minimum
protection for ***'s Confidential Information as provided in Article 6 above.
29
ARTICLE 10 - INSPECTION
--------------------------
Contractor shall provide and maintain an inspection system acceptable to ***
covering Deliverables under this Agreement and shall tender to *** for
acceptance only supplies that have been inspected in accordance with said
inspection system. *** has the right to inspect and test all Deliverables called
for by this Agreement, to the extent practicable, at all places and times,
including the period of design or manufacture, and in any event before
acceptance. *** assumes no contractual obligation to perform any inspection for
the benefit of the Contractor unless specifically set forth elsewhere in this
Agreement. *** shall provide reasonable notice to Contractor for any inspection.
Unless otherwise agreed to by both Parties, inspections shall not increase the
contract price.
ARTICLE 11 - LIMITED WARRANTY
-------------------------------
Contractor warrants that the Product, when required to be delivered, shall be
delivered free from defects in workmanship or materials. Contractor shall repair
at its expense all defects in Products or replace defective Products with
non-defective Products provided the defect is reported within twelve months
after acceptance, but no later than 18 months from delivery, and Contractor
confirms the defect. *** shall not return any Product to Contractor without
Contractor's authorization. *** shall reimburse Contractor all costs, including
transportation, of returned products that Contractor determines were not covered
by this limited warranty. Contractor shall have no responsibility to repair or
replace Products damaged by misuse, abuse, repair by any person not authorized
by Contractor, environmental or operating conditions outside of specifications,
natural calamities or sabotage. Contractor agrees to pass on all warranties of
subcontractors to ***, but such agreements shall not relieve Contractor of any
warranty it has given. THE FOREGOING LIMITED WARRANTY IS GIVEN IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In no event will
Contractor be liable for more than the cost of the defective Product or for any
incidental, consequential or special damages of any kind.
ARTICLE 12 - INDEPENDENT CONTRACTOR
=------------------------------------
In performing its obligations hereunder, Contractor shall act
at all times as an independent contractor. Nothing contained herein shall be
construed or applied to create an association for profit or the relationship of
principal and agent or employer and employee between *** and Contractor, and
Contractor shall not make any commitment, take any action or incur any expense
in the name of or purporting to bind ***.
ARTICLE 13 - FURTHER ASSURANCES
------------------------------
Contractor will, and will cause its employees, officers,
agents and representatives to, prepare and execute at Contractor's expense, and
will deliver, at the reasonable request of ***, any and all documents or
instruments reasonably necessary or appropriate to create, evidence or confirm
the grant, discharge, or release, as the case may be, of any right, interest or
obligation acquired by *** pursuant to this Agreement.
ARTICLE 14 - INDEPENDENT WORK
------------------------------
Either party to this Agreement may independently pursue work
of any nature provided, however, that doing so does not impair or affect rights
created by this Agreement or otherwise conflict with the terms, covenants and
conditions of this Agreement.
30
ARTICLE 15 - NOTICES
---------------------
Any notices, consents, or approvals required or permitted by
this Agreement shall be in writing and shall be given by first class postage
prepaid mail.
If to Contractor: TRANSBOTICS CORPORATION
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
ATTENTION: President
If to ***: ***
or to such other address as the party to receive the same shall have designated
by written notice to the other party hereto.
ARTICLE 16 - APPLICABLE LAW; SUCCESSORS AND ASSIGNS; USE OF SINGULAR PERSON
----------------------------------------------------------------------------
This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware. This Agreement shall bind and inure to
the benefit of the successors and assigns of the parties hereto. As used herein,
the singular person shall include the plural. It is further agreed that the
covenants and provisions of this Agreement, whether so expressed or not, are
separable, that the unenforceability of any covenant or agreement shall neither
affect the validity and enforceability of any other covenant or agreement hereof
and that in the event that any such covenant or agreement hereof is not
enforceable in full, it shall nonetheless be enforced to the full extent
permitted by law.
ARTICLE 17 - COMPLIANCE WITH LAWS
---------------------------------
Contractor agrees to comply with all applicable Federal, State
and Municipal Laws and Ordinances, and all rules and regulations thereunder, and
all provisions required thereby to be included herein, are hereby incorporated
herein by reference.
17.1 Gratuities
Contractor and any Person acting on its behalf agree not to
give, offer, or promise, either directly or indirectly, anything of value (e.g.,
gift, gratuity, or entertainment) of any sort or amount to any Person who is in
a position to affect or influence the interests or business activities of ***,
including but not limited to, this Agreement or any other matter on which
Contractor is doing or is seeking to do business with ***.
17.2 Indemnification
Contractor and *** agree that each respectively shall assume
and shall be solely responsible for all losses, claims, damages, judgments,
costs, expenses, liabilities, and the like from injuries to or death of its
personnel or any third party or for damages to or destruction of its or third
party property arising out of any of its performance of any Work under this
Agreement and shall indemnify and hold the other party hereto harmless for all
such liability. In addition, Contractor shall provide insurance as specified in
Exhibit B attached hereto and made a part hereof.
31
ARTICLE 18 - FREEDOM FROM INFRINGEMENT
---------------------------------------
18.1 Absence of Confidentiality Restrictions
Contractor represents and warrants to *** that, its
performance of the Work, including but not limited to, its production and
delivery of the Deliverables, shall not violate or breach any agreement or legal
requirement in any way limiting the use or disclosure of any confidential,
proprietary, or trade secret information or material of any Person, other than
as provided in Article 6.
18.2 No Infringement
Contractor represents and warrants that neither the
Deliverables nor Contractor's performance of the Work violates or infringes any
patent, trademark, copyright, trade secret, invention, nondisclosure,
non-competition, license, privacy, or other proprietary right of any Person.
ARTICLE 19 - ASSIGNMENT
------------------------
Contractor shall not assign or transfer this Agreement or any
of its rights, interests, or obligations under this Agreement, in whole or in
part, without ***'s prior written consent. Any purported assignment or transfer
in violation of this Article 19 shall be null and void.
ARTICLE 20 - DISPUTES
---------------------
Either party may litigate any dispute arising under or
relating to this Agreement before any court of competent jurisdiction. Pending
resolution of any such dispute by settlement or by final judgment, the parties
shall proceed diligently with performance. Contractor's performance shall be in
accordance with ***'s written instructions.
ARTICLE 21 - TAXES
-----------------
The Agreement Amount is net of all sales, use, excise or similar taxes on the
provision of services and the delivery of the Deliverables provided for herein.
Any such taxes shall be payable by *** or, if collected from Contractor, shall
be added to the Agreement Amount and paid by ***. Contractor shall be
responsible for all income related taxes assessed or levied in connection with
or by reason of the Work and any payment made to or earned by Contractor, its
employees, agents, representatives, or any subcontractor. Contractor shall be
responsible for any taxes which are imposed on any materials, equipment, tools,
or supplies used by Contractor pursuant to this Agreement, as well as any taxes
imposed against Contractor or against Contractor for or on account of any
payment made to or earned by Contractor, its employees, agents or
representatives in connection with Work under this Agreement. Contractor agrees
to take such action as may be legally required to ensure payment of taxes
assessed or levied against or on account of any wages, salaries, or benefits
paid to employees, agents, representatives or any subcontractor of Contractor.
ARTICLE 22 - WAIVER OF MECHANICS' LIENS
---------------------------------------
Contractor agrees that no mechanics' liens whatsoever shall be
filed against *** or ***'s premises by Contractor or any subcontractor for the
supply of any labor, material, or both in the performance of the Work under this
Agreement, and the right to such lien is hereby waived.
ARTICLE 23 - HEADINGS
---------------------
The Headings of the Parts, Paragraphs and Subparagraphs in
this Agreement are inserted for reference only and shall not be deemed part of
the text hereof.
32
ARTICLE 24 - NO WAIVER
-----------------------
No failure or delay on the part of any party in exercising any
right, power or privilege under this Agreement shall operate as a waiver thereof
or preclude any other or further exercise or the exercise of any other right,
power or privilege. No waiver by any party of its rights under this Agreement
shall be effective unless expressed and in writing.
ARTICLE 25 - SECURITY INTEREST
==============================
Upon ***'s tender of a milestone payment under Article 4 hereof which includes
amounts charged in respect of equipment and/or components (the "Equipment"), all
right, title and interest in and to such Equipment shall automatically vest in
***, and Contractor shall execute a xxxx of sale in the form of Exhibit C hereto
to evidence the same. In addition, Contractor shall take all steps necessary to
further evidence and perfect all of ***'s right, title and interest in and to
such Equipment and Contractor's obligations to perform the services hereunder,
including, without limitation, (i) granting to *** a security interest in such
Equipment to secure Contractor's obligations hereunder and ***'s rights in such
Equipment and assisting *** to make all UCC filings in connection therewith,
(ii) placing stickers/notices on such Equipment acknowledging ***'s ownership of
such Equipment, (iii) using its best efforts to obtain written acknowledgments
from Contractor's senior lender(s) and the vendor(s) of such Equipment that no
security interest such senior lender or vendor may otherwise have, or have a
right to, in such Equipment will attach to such Equipment now or in the future
and (iv) executing any further assignments, documents or filings reasonably
requested by *** to evidence the same.
ARTICLE 26 - ENTIRE AGREEMENT; AMENDMENTS
-----------------------------------------
With the exception of the Confidentiality Agreement identified
in Article 6 hereof, and incorporated herein, this Agreement constitutes the
entire agreement between Contractor and *** with respect to its subject matter.
This Agreement shall not be amended, waived or modified in any respect except by
a written amendment executed with the same formality as this Agreement and
executed by duly authorized representatives of the respective parties.
ARTICLE 27 - EXHIBITS
---------------------
The following exhibits are incorporated in and made a part of
this Agreement:
Exhibit "A" - Statement of Work
Exhibit "B" - Insurance
Exhibit "C" - Xxxx of Sale
33
ARTICLE 28 - ORDER OF PRECEDENCE
--------------------------------
Any inconsistencies in this Agreement shall be resolved in the
following order of descending precedence: the Statement of Work; the provisions
of Articles 1-27 of this Agreement and the other documents, exhibits and
attachments, if any.
Contractor and *** have caused this Agreement to be duly executed as of the date
first above written.
TRANSBOTICS CORPORATION
*** ***
By: By: /s/ Xxxxxx Xxxxxxx
---------------------- ---------------------------------
Name: Name: Xxxxxx Xxxxxxx
-------------------- ------------------------------
Title: Title: President
-------------------- ------------------------------
Date: Date: June 4, 2003
-------------------- ------------------------------
34
Exhibit A
STATEMENT OF WORK
Transbotics shall purchase the long lead time parts, as listed below for two (2)
Beta AGV units per the agreed upon modified design. Upon receipt of the parts
they shall be retained at Transbotics facility, segregated, labeled as "Property
of ***", and be available for audit by *** personnel, but shall not be warranted
by Contractor to *** under Article 11 except as integrated into and sold and
delivered as the AGV units referred to above. The only Deliverables under this
Statement of Work are the items to be procured listed below.
Items to be procured are as follows:
***
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INSURANCE
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Subcontractor from the time of commencement of Performance of Work until
acceptance of the Deliverables under this Agreement shall provide and maintain
in effect the following types and amounts of insurance with insurance companies
satisfactory to *** ***:
A.Worker's Compensation, in the amount required by the state where performance
will occur, under applicable Worker's Compensation and occupational disease
statutes.
B. Comprehensive General Liability Insurance, including contractual
liability insuring any indemnity agreement set forth in this Agreement
and products-completed operations coverage with limits of not less than
$1,000,000 applicable to bodily injury, sickness or death in any one
occurrence; and $1,000,000 for loss of or damage to property in any one
occurrence.
C. Automobile Liability Insurance covering owned, non-owned and hired
vehicles used by Subcontractor with limits of not less than $1,000,000
applicable to bodily injury, sickness or death of any one person and
$1,000,000 for more than one person in any one occurrence; and
$1,000,000 for loss of or damage to property in any one occurrence.
D. *** *** shall assume the risk of physical loss or damage to machinery,
apparatus, material, temporary forms, temporary structures, including
contents thereof, and supplies to be incorporated in any *** ***
property. Such assumption of risk will apply while goods are in transit
over land, sea or by air and while temporarily in warehouses, at
fabrication yards or at the final job site during fabrication and
installation and until the Work is completed and the Deliverables
accepted by *** *** *** *** agrees to indemnify and save harmless,
Subcontractor and its subcontractors for all loss and damage as above
described which exceeds $1,000 per occurrence.
*** *** shall assume no risk of physical loss or damage to
Subcontractor-owned or rented tools, materials or equipment while in
transit or at job site.
E. All policies shall be endorsed to provide that underwriters and
insurance companies of Subcontractor shall not have any right of
subrogation against *** *** and all subsidiaries, agents, employees,
invitees, servants, subcontractors, insurers, underwriters, and such
other parties as *** *** may designate.
F. Subcontractor shall furnish Certificate(s) of Insurance to *** ***
evidencing the insurance required hereunder and upon request, *** ***
may examine true copies of the actual policies. Each certificate shall
provide that thirty (30) days prior written notice shall be given ***
*** in the event cancellation or material change in the policies
occurs.
G. All policies shall be endorsed to provide that there will be no
recourse against *** *** for payment of premium.
H. Subcontractor shall require all subcontractors to obtain, maintain and
keep in force, during the time in which they are engaged in performing
Services hereunder, adequate insurance coverage in accordance with
Subcontractor's normal practice and furnish *** *** acceptable evidence
of such insurance.
I. *** *** shall not be liable for loss or damage to equipment, supplies
and materials belonging to Subcontractor or used by or on behalf of
Subcontractor for Subcontractor's performance hereunder. Any insurance
policies carried by Subcontractor or third party on said equipment,
supplies and materials shall provide for waiver of underwriter's right
to subrogation against *** ***.
J.Unless otherwise provided pursuant to FAR 52.228-7, Insurance Liability to
Third Parties, incorporated by reference into this Agreement under Article 31,
it is expressly agreed and understood that the cost of premiums and deductibles
for insurance described in this Agreement is a non-reimbursable cost.
K. Primary Insurance - It is hereby understood and agreed that any coverage
provided *** *** by Subcontractor's insurance under this Agreement is primary
insurance and shall not be considered contributory insurance with any insurance
policies of *** ***.
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L. By so specifying, *** *** may require additional types of insurance.
M. These insurance provisions in no way affect the liability of Subcontractor as
stated elsewhere in this Agreement.
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FORM OF XXXX OF SALE
This Xxxx of Sale, dated as of __________ 2003 (the "Xxxx of Sale"), is
made and entered into by and between *** *** ("***") and TRANSBOTICS
CORPORATION, ("Contractor").
WHEREAS, pursuant to that certain Subcontract Agreement (No.
378-03-136) dated as of 30 May, 2003 by and between *** and Contractor (the
"Agreement"), Contractor has agreed to purchase, on ***'s behalf, certain
equipment (the "Equipment"), ownership of which shall pass to *** upon ***'s
making certain payments to Contractor under the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Agreement, and for other good and valuable
consideration, the receipt of which are hereby acknowledged, *** and Contractor
hereby agree as follows:
1. Capitalized terms used herein that are not defined herein shall have
the meanings ascribed thereto in the Agreement.
2. Contractor hereby sells, conveys, assigns, transfers and delivers to
*** all of Contractor's right, title and interest in and to the Equipment, free
and clear of all liens, claims and encumbrances.
3. Contractor, for itself and its successors and assigns, covenants and
agrees to warrant and defend the transfer, conveyance and assignment of the
Equipment to *** and its successors and assigns against all and every person or
persons whomsoever.
4. This Xxxx of Sale shall be binding upon and inure to the benefit of
each party hereto, its permitted assigns and its successors in interest, and all
assigns and successors in interest thereafter.
5. This Xxxx of Sale may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which, taken together,
shall constitute one and the same instrument.
6. This Xxxx of Sale shall be governed by the law of the State of
Delaware (without regard to any principles of conflicts of laws thereof).
IN WITNESS WHEREOF, *** and Contractor have executed this Xxxx of Sale
as of the date first above written.
TRANSBOTICS CORPORATION
By: _____________________________
Name:
Title:
*** ***
By: _____________________________
Name:
Title:
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