Exhibit 10
TEAMING AGREEMENT
This Teaming Agreement ("Agreement") is made and entered into as the
Effective Date (as that term is defined below) by and between Fuel Tech, Inc., a
Delaware corporation ("FTI") with offices at 000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx.
00000, and ITOCHU Hong Kong Ltd., a Hong Kong corporation, with offices at 00X,
Xxxxxx Xxxxxx, 00 Xxxxxxxxx, XX, Xxxx Xxxx SAR. ("ITC"). (Hereinafter, FTI and
ITC may sometimes be referred to collectively as the "Parties", and either of
them may be referred to as the "Party.")
WHEREAS, FTI owns and markets the Fuel Chem(R) TIFI(TM) ("Targeted In-Furnace
Injection") Program ("Program") which consists of various chemicals, equipment,
services and technology elements that have potential benefits in energy
efficiency gain, reduced air pollutant emissions and CO2, reduced operation and
maintenance cost, and improved safety for combustion units, which may improve
energy efficiency and operation of combustion units of power plants and other
customers;
WHEREAS, ITC, through its existing sales force, currently sells a variety of
products and services to combustion unit customers in the territory of the
Peoples Republic of China, including the Hong Kong Special Administrative Region
(SAR) and the Macau SAR ("Territory");
WHEREAS, subject to the requirements of this Agreement, the Parties want to
document a teaming arrangement between equal team members under which a Shared
Management Board (as that term is defined below) ("SMB") will make decisions
that the Parties agree to abide by in respect of performing a market development
demonstration project (the "MDDP") for the sale of the Program to a combustion
unit customer ("Customer"), that is selected by the SMB, that is in the
Territory, and which MDDP will be undertaken for the period of time determined
by the SMB ("MDDP Period"); and
WHEREAS, the Parties have agreed to the terms and conditions of this Agreement
solely for the purpose of establishing the minimum terms and conditions (a)
under which the teaming arrangement will operate, (b) under which the SMB will
be formed and operate, and (c) that are applicable to the MDDP and the contract
with the Customer for the MDDP, and except as otherwise specified herein, the
Parties have agreed that other decisions in respect of the MDDP shall be taken
by the SMB in its commercially reasonable discretion;
NOW, THEREFORE, both FTI and ITC hereby agree as follows:
ARTICLE 1: TEAMING ARRANGEMENT BETWEEN FTI AND ITC
1.1 During the term of this Agreement, through the deliberations and decisions
of the SMB, FTI and ITC agree to:
- Prospect for, identify, select and arrange the Customer for the MDDP.
- Reasonably cooperate in the provision of the Program to the Customer,
including in respect of the modeling, design, equipment procurement
and installation, operation and maintenance, and chemical supply.
- Reasonably cooperate in the establishment of goals and objectives for
the marketing and supply of the Program to a Customer in the Territory
through a MDDP, and evaluating the success of the MDDP.
- Consider the possibility of providing the Program to more than one
Customer in the Territory on a MDDP basis. Any such additional
Customer activity would be governed by this Agreement.
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- Study various options to set up a joint venture ("J/V"), work out a
concrete business plan for a J/V, and subject to feasibility and board
or other necessary corporate approvals of each Party, set up the J/V.
1.2 For a one (1) year period commencing the Effective Date of this Agreement,
neither FTI nor ITC shall negotiate for or commit to any arrangements relating
to a teaming arrangement for the Program in the Territory with any other
unaffiliated entity except with the other Party hereto, including without
limitation, a teaming arrangement involving an environmental energy services
company or the pollution prevention and energy efficiency environmental
financing program (as those terms are used by the U.S. Department of Commerce)
for the Program or any other combustion unit treatment program that affords one
or more combustion unit benefits similar to those available from the Program;
provided, however, nothing in this Paragraph 1.2 (and, solely for avoidance of
doubt, any other provision in this Agreement) shall prohibit, impair, or
restrict FTI or ITC from carrying on any business that is not similar to the
Program, including providing energy efficiency improvement and air pollution
control solutions, in each case to customers or prospective customers in the
Territory. FTI or ITC may employ a 3rd party to provide products and/or services
associated with the MDDP, provided that i) SMB approves each such arrangement,
and ii) each such third party shall enter into an NDA in the form and substance
shown in Exhibit 1 prior to each third party's access to any FTI Confidential
Information.
1.3 The Parties agree to share equally the risk of profit and loss of each MDDP
as follows:
- FTI and ITC will equally split (50%/50%) the gross margin on the MDDP
for the Customer, where gross margin will be calculated by aggregating
all of the revenue received from the Customer under the Customer
Agreement (as that term is defined in the Term Sheet) and subtracting
all of the Costs; provided that the gross margin calculation will, at
all times, exclude the costs of the equipment which must be installed
on the Units (as that term is defined below) for the MDDP.
- For the purpose of this Agreement, "Costs" refer to the cost of goods
sold applying US generally accepted accounting principles. The Costs
shall include the necessary expense for modeling, engineering, program
installation and maintenance, and chemical supply required for the
Program for the MDDP.
- Each Party will supply goods or services at Cost to the Party that
enters into the Customer Agreement with the Customer. The
non-supplying Party shall have the right to request reasonable
documentation and information that evidences the Cost.
- The Cost of the equipment which must be installed on the Units for the
MDDP will be shared equally.
- Except for the Costs which are defined above, each Party shall bear
its own costs and expenses in providing the MDDP and otherwise
performing under this Agreement.
1.4 The Parties agree that FTI owns, and shall continue to own, all right, title
and interest in and to any and all current and future patents, inventions,
discoveries (whether patentable or unpatented), trade secrets and know-how that
are necessary or useful in the making, formulation, use, sale, offer for sale or
import of the Program (the "Know-How"). Any Know-How (i) provided to ITC by FTI
in furtherance of this Agreement, (ii) created by ITC or FTI in furtherance of
this Agreement, and (iii) provided by the Customer during the MDDP, is, and will
be, FTI's sole property, and does not constitute work for hire under any
applicable law. Nothing in this Agreement, no action by the SMB, no performance
under this Agreement, and no actions by FTI, whether express or implied, or
otherwise will result in FTI granting any right, title or interest in or to the
Know-How; provided that FTI will grant ITC a limited right to use the Program
and the Know-How solely for the purpose of ITC carrying out its responsibilities
under this Agreement for the Customer at the MDDP. ITC agrees that such right to
use the Program and the Know-How to carry out its responsibilities under this
Agreement for the Customer at the MDDP shall not be for any other benefit or
transferred to any other person or company.
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1.5 The Parties agree that any contract with the Customer for the MDDP, whether
with FTI, ITC, or another entity, shall require that the Customer enter into a
written limited use license agreement ("License") with FTI pursuant to which FTI
will grant the Customer a limited internal use license to use the Program and
the Know-How solely in connection with the Customer's use of the Program on the
Customer combustion unit ("Unit") or units ("Units") described in the Customer
Agreement for the MDDP and only so long as the Customer is using the Program on
the Unit or Units during the MDDP.
ARTICLE 2: SHARED MANAGEMENT BOARD
2.1 Within fourteen (14) days of the Effective Date of this Agreement, the
Parties shall form the Shared Management Board or "SMB", consisting of three (3)
representatives each from FTI and ITC, respectively. Each Party shall identify
its SMB representative members to the other Party in writing. During the term of
this Agreement, each Party may change one or more of its SMB members upon ten
(10) days prior written notice to the other Party.
2.2 Each of FTI and ITC shall have one vote on the SMB, and any decision of the
SMB must be unanimous. SMB decisions shall be appropriately documented to
facilitate the operational flow necessary for the Parties to achieve the
purposes of this Agreement. Meetings of the SMB shall occur on an as needed
basis as determined by the SMB members on a commercially reasonable basis.
Meetings may be held in person at agreed to venues, via telephone or via other
electronic means agreed to by the SMB. For the purpose of SMB meetings, the SMB
members shall appoint a Chairperson. The Chairperson shall be responsible for
scheduling each SMB meeting, publishing the agenda for each meeting to the other
SMB members in advance of the meeting, and facilitating whatever other
administrative duties the SMB decides is reasonably necessary on a commercially
reasonable basis for each such meeting. The Chairperson shall rotate to a
different member of the SMB every six (6) months.
2.3 Except for those required provisions for the MDDP set forth elsewhere in the
Agreement, the SMB shall have discretion to decide on the business plans to
accomplish the MDDP for the Customer in the Territory including, without
limitation, formulating the basic project and sales management structure for the
MDDP, and designating a project manager for the MDDP.
2.4 Activities or actions of the SMB or either Party under this Agreement that
involve the Confidential Information of either Party shall be subject to the
non-disclosure and confidentiality provisions set forth in the applicable
non-disclosure agreement(s) set forth in Exhibit 1 ("NDAs"). The NDAs are
expressly incorporated into this Agreement by this reference as if fully set
forth in this Agreement. The term "Confidential Information" shall have the
meaning set forth in the NDAs.
2.5 In the event a decision cannot be taken by the SMB over a material matter
reasonably required to be decided to further the purposes of the Parties under
this Agreement, that matter shall be decided under the dispute resolution
provisions of this Agreement.
2.6 Any matter not otherwise addressed in this Agreement or in the Term Sheet
(as defined below) shall be decided by the SMB.
ARTICLE 3: DEMONSTRATION PROJECT
3.1 Both Parties acknowledge that it is important for the SMB: (a) to
expeditiously launch and successfully perform the MDDP, at which the Parties can
demonstrate to the Customer in the Territory the feasibility of the Program in a
local combustion unit environment, and, (b) to use that experience to refine the
Parties' relationship to explore the future potential business opportunity of
providing the Program to Customers in the Territory on an anticipated joint
venture or other teaming arrangement basis.
3.2 The Parties agree that the MDDP structure described in the Appendix A: "Term
Sheet for the MDDP" ("Term Sheet") reflects proposed activities of the Parties
for the MDDP that are based upon the
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Parties' good faith efforts as of the Effective Date of the Agreement to assess
the relative strengths of each Party as to each Party's knowledge of the
Program, the Territory and prospective Customers for MDDPs. Accordingly, the
Parties agree the SMB shall use the Term Sheet as a reference for developing its
business plans for the MDDP contemplated by this Agreement. However, subject to
the other requirements of this Agreement, the actual business plan structure of
the MDDP shall be discussed and agreed upon by the SMB.
ARTICLE 4: TERM OF AGREEMENT, TERMINATION, DISPUTE RESOLUTION
4.1 The Parties deem the effective date of this Agreement ("Effective Date") to
be the last signature date shown below. Unless sooner terminated by either Party
as provided for below, this Agreement shall terminate either: (a) one (1) year
after its Effective Date if at that time a legally enforceable Customer
Agreement for a Customer is not in effect, or (b) when both Parties mutually
agree in writing to terminate the Agreement, whichever occurs earlier.
Notwithstanding Article 4.1(b) above, in the event the Parties enter into a
Customer Agreement with one or more Customers pursuant to this Agreement, this
Agreement shall remain in effect until the last such Customer Agreement expires
or terminates as the case may be.
4.2 Subject to each Party's obligation to pursue resolution of disputes under
the Agreement as called for by Article 4.3 below, either Party may exercise the
remedies set forth below at any time upon written notice if the other Party (i)
is in material breach of its obligations hereunder, and fails to cure such
breach within thirty (30) days following written notice of such breach, or (ii)
becomes insolvent or files or has filed against it a petition under applicable
bankruptcy or insolvency law which remains un-dismissed after ninety (90) days
or makes an assignment for the benefit of creditors or takes any similar action
under applicable bankruptcy or insolvency law.
Upon written notice to the defaulting party by the non-defaulting party, the
non-defaulting party may exercise one or more of the following remedies: (a)
terminate this Agreement; (b) declare all payments under this Agreement to be
immediately due and payable; and/or (c) pursue any other remedy available under
the Agreement, at law or in equity.
4.3 Dispute Resolution. In the event that a dispute, claim or controversy
arising out of or relating to this Agreement, including without limitation the
SMB's inability to make a decision material to furthering the Parties' intended
MDDP performance under this Agreement, (a "Disputed Matter"), cannot be settled
by the Parties, the Parties shall resolve their differences through a voluntary
private mediation, followed by a senior management escalation negotiation, if
necessary, then followed by binding arbitration, if necessary, in accordance
with the following procedures:
(a) If the SMB cannot resolve a Disputed Matter, then it shall be submitted
first to a mutually acceptable neutral advisor for mediation. Neither Party may
unreasonably withhold acceptance of a neutral advisor. The selection of the
neutral advisor must be made within ten (10) business days after written notice
by one Party demanding mediation, and the mediation must be held within two (2)
months after the initial demand for it. By mutual agreement, however, the
Parties may postpone mediation until they have each completed some specified but
limited discovery about the dispute, controversy, or claim. The cost of
mediation shall be equally shared between the Parties. The use of mediation
shall not be construed (under such doctrines as laches, waiver, or estoppel) to
have adversely affected any Party's ability to pursue its legal remedies.
(b) If either Party determines, in good faith, that the mediation effort has
failed to result in an agreement within ninety (90) days after receipt of the
initial mediation demand notice (or such other date as the Parties may mutually
agree upon in writing within such ninety (90) days), the Parties agree that the
President/Chief Executive Officer of Fuel Tech, Inc. and the President/Chief
Executive Officer of the ITC or President/Chief Executive Office of Itochu China
(Holdings) Ltd. (each, an "Executive") within thirty (30) business days
thereafter ("Negotiation Period") shall negotiate to expeditiously resolve the
Disputed
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Matter. No later than five (5) business days after commencement of the
Negotiation Period, the Executive from the Party who initially made the Disputed
Matter mediation demand must send to the other Party's Executive a written
notice (the "Initial Notice") specifying the particulars of the dispute, the
provisions of the Agreement which are involved, and the initiating Party's
suggested resolution of the controversy. Such Initial Notice should also
identify any other documents and/or oral statements upon which that Party relies
to support its position. Thereupon, the Parties agree to negotiate subject to
the following minimum conditions:
(i) the recipient Executive must respond in writing (delivered in the same
manner) to the sending Executive within five (5) business days after receipt of
the Initial Notice with a statement and explanation of its reasons for differing
with the positions set forth in the Initial Notice, an identification of the
Agreement provisions, other documents and/or oral statements upon which it
relies, and a counter-proposal for resolving the controversy; and
(ii) following the exchange of correspondence, the Parties shall negotiate
informally via whatever mutually agreed to direct communication vehicles the
Executives select.
(c) If either Party determines, in good faith, that these negotiations have
failed to result in an agreement of the Disputed Matter within twenty-five (25)
business days after receipt of the Initial Notice (or such other date as the
Parties may mutually agree upon in writing within such 25 business days), either
Party may initiate a demand for arbitration, which shall be final and binding.
Such arbitration will be conducted in Chicago, Illinois, in accordance with
Rules of Arbitration of the International Chamber of Commerce by one arbitrator
appointed in accordance with said rules. The language of the arbitration shall
be English.
(d) Nothing in this Article 4.3 shall prevent any Party from resorting to
judicial proceedings in a state or federal court of competent jurisdiction in
Chicago, Illinois, USA, if injunctive relief from a court is necessary to
prevent serious and irreparable injury to any Party or others, and the Parties
hereby irrevocably and unconditionally submit to the jurisdiction of any court
of the State of Illinois and any federal court located in Chicago, Illinois,
with respect to such proceedings for injunctive relief.
ARTICLE 5: MISCELLANEOUS
5.1 This Agreement, and its performance and disputes hereunder, shall be
governed by the laws of the State of Illinois in the United States of America
(excluding its conflicts of law provisions). Each of the Parties hereby
irrevocably and unconditionally submits to the jurisdiction of any court of the
State of Illinois and any federal court located in Chicago, Illinois with
respect to any proceeding relating to this Agreement. Further, each of the
Parties hereby irrevocably and unconditionally waives any objection or defense
that it may have based on improper venue or forum non conveniens to the conduct
of any such proceeding in any such courts. The Parties agree that any or all of
them may file a copy of this paragraph with any court as written evidence of the
knowing, voluntary and bargained agreement between the Parties irrevocably to
waive any objections to venue or to convenience of forum. Each of the Parties
agrees that a final judgment in any such action or proceeding will be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by applicable law.
5.2 The provisions in this Agreement including its exhibits which by their
express nature are intended to survive the expiration or other termination of
this Agreement, such as the confidentiality obligations set forth in the NDAs
shall survive expiration or termination of this Agreement according to their
terms.
5.3 FTI and ITC agree that recovery of any damages suffered or incurred by such
non-breaching Party as a result of any breach by a breaching Party of any of its
obligations under this Agreement shall be limited to the actual damages suffered
or incurred as a result of the breach by the breaching Party of its obligations
hereunder and in no event shall the breaching Party be liable to the
non-breaching Party for any indirect, consequential, special, exemplary or
punitive damages (including any damages on account of
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lost profits or opportunities); provided, however, that if ITC breaches Article
1.4 of this Agreement, then consequential damages and damages for lost profits
and opportunities shall not be so limited.
5.4 The Parties agree that neither this Agreement nor the teaming arrangement
shall constitute nor be construed as a partnership, joint venture or
association. Instead, this Agreement is a teaming arrangement among equal team
members for the purpose of the MDDP for the Customer.
5.5 This Agreement may be executed in one or more counterparts (including by
means of telecopied signature pages), all of which, taken together, shall be
considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the Parties and delivered to the
other Parties. This Agreement may not be modified or amended except by an
instrument or instruments in writing signed by each of the Parties.
5.6 Unless otherwise expressly provided elsewhere in the Agreement, any notices
required or authorized to be given will be in writing and will be sent to the
Parties' addresses shown above. Any notice involving non-performance or
termination shall be sent by recognized overnight courier or by certified or
registered mail, return receipt requested. All other notices may be sent by (i)
recognized overnight courier or (ii) by fax or email and confirmed by first
class mail. All notices shall be given and received on the earlier of actual
delivery or five (5) days from the date of the postmark.
5.7 This Agreement (including the Exhibit 1 NDAs) and any other exhibits hereto
contain the entire agreement between the Parties with respect to the subject
matter hereof and supersede any prior written or oral agreements,
understandings, representations or warranties between the Parties.
5.8 The rights and obligations of the Parties shall not be assigned or delegated
by a Party without the prior written consent of the other Party, which consent
may be withheld in such Party's sole discretion.
5.9 If any term or other provision of this Agreement shall be held invalid,
illegal or incapable of being enforced by any applicable law or public policy by
a court of competent jurisdiction, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to a Party.
5.10 Both Parties acknowledge that in promoting the MDDP and conducting
feasibility study for a possible joint venture,, ITC may work with ITOCHU China
(Holdings) Ltd., Advent Technologies, Inc., and other Itochu group companies
provided that prior to each such other Itochu group company having access to any
FTI Confidential Information, the affected Itochu company first enters into an
NDA with FTI in the form and substance shown in Exhibit 1 to this Agreement. ITC
shall be responsible to make sure that all Itochu group companies involved shall
work within the framework of this Agreement. ITC warrants that it has legally
sufficient authority to bind all such Itochu group companies to comply with the
provisions of this Agreement.
[intentionally left blank - signature page on next page]
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IN WITNESS WHEREOF, the Parties have caused this Teaming Agreement to be
executed by their duly authorized representatives on the dates shown below.
FUEL TECH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Chief Financial Officer
Date: June 16, 0000
XXXXXX Xxxx Xxxx Ltd.
By: /s/ X. Xxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxx
Its: General Manager, HK and South China Machinery Dept.
Date: 16 June '07
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APPENDIX A
TERM SHEET FOR DEMONSTRATION PROJECT
The Parties agree that this Term Sheet will provide guidance and serve as a
reference for the SMB's business planning deliberations for the MDDP, but
that except as expressly provided in the Agreement (including without
limitation in respect of the Know-How and the License), the terms and
conditions of the Demo Customer Agreement shall be in the commercially
reasonable discretion of the SMB.
TERM SHEET: This is a term sheet ("Term Sheet") for the definitive
agreement (the "Customer Agreement") for the Customer for a MDDP.
Capitalized terms not otherwise defined in this Term Sheet shall
have the meanings given to such terms in the Teaming Agreement
attached to this Term Sheet.
PARTIES: The entity designated by the SMB under the Teaming Agreement (such
entity, the "Supplier Entity") and the Customer.
PRODUCT TO BE SOLD: FTI's Fuel Chem(R) TIFI(TM) (Targeted In-Furnace Injection)
Program ("Program") which consists of various chemicals,
equipment, services and technology elements that have potential
benefits in energy efficiency gain, reduced air pollutant
emissions and CO2, reduced operation and maintenance cost, and
improved safety for combustion units.
CUSTOMER: The Customer will be located in the Territory and selected by the
SMB with a combustion unit at a facility of 100 megawatts to 600
megawatts of power generation.
FORM OF AGREEMENT: Except for the License (as defined in the Agreement), the SMB
shall determine the most appropriate Supplier Entity to contract
with the Customer to supply the Program to the Customer for the
MDDP with a contractual structure suitable to the Customer
specifics, e.g., prime/sub contract arrangement, etc.
RESPONSIBILITIES OF THE PARTIES IN RESPECT OF THE CUSTOMER AGREEMENT:
ITC MARKETING - ITC will have primary responsibility for the
local marketing of the Program to potential Customers. ITC will
be responsible for preparing a local marketing plan and
translating English marketing material prepared by FTI into the
local language.
SALES - ITC will (i) prospect for the potential Customer and
identify such potential Customer to FTI, (ii) perform and/or
obtain surveys of the potential Customer's combustion units which
could utilize the Program, (iii) arrange and make sales
presentations to potential Customers, and (iv) if ITC is the
Supplier Entity, negotiate the Customer Agreement with the
Customer for the Program.
CUSTOMER AGREEMENT - The terms and conditions of the Customer
Agreement between Supplier Entity and the Customer for the
Program will be consistent with the requirements and limitations
agreed by the SMB, including without limitation, that the
Customer agrees (i) to enter
into the License with FTI, (ii) suitable limitation of liability
provisions, (iii) no Customer ownership of Program equipment, and
(iv) that the Program will be sold to the Customer by Supplier
Entity on an integrated basis and that no Program element will be
sold on a standalone basis.
EQUIPMENT SUPPLY - Supplier Entity will supply (or source such
supply) Program equipment that achieves FTI's specifications and
quality standards for the Program, except that FTI will supply
the injector equipment. The equipment supplied or sourced by ITC,
and the injector equipment supplied by FTI will comprise all of
the equipment for the Program (such equipment, collectively the
"Equipment") to be provided to the Customer. Customer will not
own the Equipment. Rather, the Customer Agreement will provide
that Customer has specified and limited rights to use the
Equipment only so long as the Customer is purchasing the Program.
The actual cost of the Equipment will be borne equally by FTI and
ITC as described in the Agreement.
INSTALLATION AND OPTIMIZATION OF THE PROGRAM EQUIPMENT - Supplier
Entity will install, or cause to be installed, the Equipment for
the Customer in the manner specified by the design, engineering
and modeling portions of the Program as such will be mutually
agreed by ITC and FTI.
CHEMICAL SUPPLY - The chemical supplied to the Customer under the
Customer Agreement for the MDDP will be provided as follows:
Supplier Entity will purchase Program chemical from FTI at
delivered cost from FTI (excluding any value added tax and custom
tax burden costs), and Supplier Entity will resell such chemicals
to Customer. Later, FTI or ITC may agree to utilize its supply
chain to provide the Program chemical to the Customer provided
that it meets FTI raw material, chemical product formulation and
quality standards for the Program.
PROGRAM MAINTENANCE - Supplier Entity will provide Program
operation and maintenance to the Customer as provided under the
Customer Agreement.
FT MARKETING OF THE PROGRAM - FTI will provide market leadership in
respect of the Program, including identifying the potential
Customer, developing demonstration modules and materials, and
preparing English language marketing and promotional materials
concerning the Program.
SALES EFFORTS FOR THE PROGRAM - FTI will use its commercially
reasonable efforts to (i) provide sales training to ITC personnel
in order to makes sales calls on a potential Customer, (ii)
provide technical direction during the sales process, and (iii)
prepare Customer-specific sales proposals (without pricing) based
on a combustion survey procured by ITC.
Pursuant to an arrangement determined by the SMB for the executed Customer
Agreement, FTI will provide to such Customer or in respect of such
Customer:
PROCESS DESIGN AND COMPUTATIONAL MODELING - FTI's customary
process design and computational modeling design services for the
Customer's Unit or Units.
INSTALLATION OF THE PROGRAM EQUIPMENT - Technical support
for Supplier Entity's installation of the Program so that
it is installed in the manner customarily specified by
FTI for the design, engineering and modeling portions of
the Program.
STARTUP AND OPTIMIZATION OF THE PROGRAM - Technical
support for Supplier Entity's startup and optimization
of the Program for the Customer.
SUPPLY OF CHEMICAL FOR THE PROGRAM - Chemicals to be
utilized in the Program.
PROGRAM MAINTENANCE - Training for Supplier Entity's
personnel in order to enable Supplier Entity to provide
operation and maintenance services for the Program.
CUSTOMER: The Parties anticipate that the Customer will provide the
following in connection with the use of the Program at
the Customer's Unit:
INSTALLATION SITE -
CHEMICAL STORAGE TANKAGE -
INSTRUMENT AIR -
WATER -
POWER -
INTELLECTUAL
PROPERTY AND KNOW HOW: As between ITC and FTI, see Article 1.4 of the Teaming
Agreement.
As between the Supplier Entity and the Customer, see
Article 1.5 of the Teaming Agreement.
NON-DISCLOSURE AND
CONFIDENTIALITY: Customary confidentiality provisions.
MDDP
PROGRAM PRICING: To be determined by the SMB.
GUARANTEES: Neither ITC nor FTI will guarantee Program performance to
the Customer. The Supplier Entity may provide to the
Customer anticipated objective Program performance
parameters for the Program as determined by the SMB.
INSURANCE COVERAGE: Each Party will maintain adequate and customary insurance
coverage under the teaming agreement.
