EXHIBIT 10.01
CONTRACT NO. GP/0583/95/TG
COMMERCIAL IN CONFIDENCE
BAA plc
CONTRACT for
THE MANUFACTURE, SUPPLY, INSTALLATION AND
COMMISSIONING OF HOLD BAGGAGE SCREENING EQUIPMENT
HEATHROW AIRPORT LIMITED
PROCUREMENT DEPARTMENT
HEATHROW POINT EAST
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Final Draft (No. 5) Draft No. -PM Behan - 03 April 1996
CONTRACT FOR THE MANUFACTURE, SUPPLY INSTALLATION AND COMMISSIONING OF HOLD
BAGGAGE SCREENING EQUIPMENT
CONTENTS :-
ARTICLES OF AGREEMENT
APPENDIX 1.0 - LIST OF SUBSIDIARY COMPANIES
APPENDIX 2.0 - SPECIFICATION
APPENDIX 3.0 - PRICE SCHEDULE
APPENDIX 4.0 - INSTALLATION SCHEDULE
APPENDIX 5.0 - CHANGE CONTROL PROCEDURE
APPENDIX 6.0 - MAINTENANCE SUPPORT SERVICE
APPENDIX 7.0 - SYSTEM VERIFICATION PROCEDURE
APPENDIX 8.0 - TRAINING
APPENDIX 9.0 - AVIATION LIABILITY INSURANCE POLICY SUMMARY
APPENDIX 10.0 - US DEPARTMENT OF TRANSPORT DIRECTIVES
APPENDIX 11.0 - BAA BYLAWS
CONTRACT NO. GP/0583/95/TG
CONTRACT FOR THE MANUFACTURE, SUPPLY INSTALLATION AND COMMISSIONING OF HOLD
BAGGAGE SCREENING EQUIPMENT
TERMS AND CONDITIONS OF CONTRACT
INDEX
CLAUSE NO. TITLE
1 DEFINITION AND INTERPRETATION
2 CONTRACTOR'S OBLIGATIONS
3 CONTRACTOR TO INFORM HIMSELF FULLY
4 THE FINAL POSITION
5 PROVISION OF INFORMATION
6 INSTALLATION SCHEDULE
7 DELIVERY, INSTALLATION AND COMMISSIONING OF EQUIPMENT
8 SITE ACCEPTANCE TESTS
9 ACCEPTANCE
10 EXTENSION OF TIME FOR COMPLETION
11 PRICE AND PAYMENT
12 FORCE MAJEURE
13 PATENTS, DESIGN AND COPYRIGHT
14 WARRANTIES
15 EXTENDED WARRANTY
16 STANDARD OF PERFORMANCE
17 INDEMNITY AND INSURANCE
18 OWNERSHIP
19 MAINTENANCE
20 SPARES, TOOLS AND EQUIPMENT
21 SOFTWARE
22 TERMINATION
23 ESCROW
24 NON TRANSFER OF DUTIES
25 CONFIDENTIALITY
26 TRAINING
27 STATUTORY AND OTHER REGULATIONS
28 BYLAWS
29 WAIVER
30 PUBLICITY
31 DOCUMENTATION
32 ARBITRATION
33 LAW
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CONTRACT NO. GP/0583/95/TG
CONTRACT
FOR
THE MANUFACTURE, SUPPLY INSTALLATION AND
COMMISSIONING OF HOLD BAGGAGE SCREENING EQUIPMENT
THIS AGREEMENT is made the first day of April 1996 between BAA plc, for itself
and for and on behalf of those of its subsidiary companies as set out in
Appendix 1 part 1 each of whose registered office is at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (together herein referred to as "the Company" which term shall include
any successors and assignees") and Vivid Technologies Incorporated of ▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ (herein referred to as "the
Contractor" which term shall include its subsidiaries, successors and permitted
assignees).
WHEREBY IT IS AGREED THAT:-
The Company hereby appoints the Contractor and the Contractor hereby agrees to
manufacture, supply, install and commission hold baggage screening equipment to
the Company as more particularly described in the Specification attached as
Appendix 2 including, but without limitation, any documents referred to therein
("the Specification") and at the prices particularly set out in the schedule of
prices attached as Appendix 3 (the "Price Schedule") to be installed at the
times and the locations as set out in Appendix 4 (the "Installation Schedule")
and to abide by the principles and procedures
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described in Appendix 5 (the
"Change Control Procedure") and Appendix 6 (the "Maintenance Support Service").
Appendices 1, 2, 3, 4, 5, 6, 7, 8,9,10 and 11 are hereby incorporated in and
form part of this Agreement which together are hereinafter referred to as "the
Contract."
1. Definition and Interpretation
1.1 In this Contract, the following words and expressions shall, unless the
context otherwise requires, have the meanings assigned to them herein:
"Certificate of Acceptance" shall mean the certificate issued under clause 9.1.
"Complete System" shall mean a complete x-ray system and may consist of one or
more pieces of equipment.
"Completion date" shall be the date or dates stated in (the Installation
Schedule) or any extension thereof made in accordance with the Contract being
the date or dates on which the Equipment or any part of it shall be installed
and have passed the Site Acceptance Tests.
"Contract Price" means the price for the Works or any part thereof calculated in
accordance with the Price Schedule.
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"Equipment" shall mean all the items including without limitation the Software
or any item which comprise or are incorporated in the security system(s) as
defined in the Specification, excluding fibre optic cable and external power
supply.
"Delivery" shall mean the delivery of the Equipment or any part thereof to the
Premises or the Site whichever is the earlier.
"Effective Date" shall mean April 1, 1996
"Force Majeure" shall mean any event or circumstance beyond the control of
either party which is not reasonably foreseeable at the date of the Contract
which prevents or impedes the due performance of such party provided always that
the mere shortage of labour, materials, equipment, plant or supplies shall not
constitute Force Majeure unless such shortage is caused by events or
circumstances which are themselves Force Majeure.
"Final Position" shall mean the place or places where the Equipment or any part
thereof is to be located and installed for use.
"Installation Schedule" shall mean the schedule showing the sequence of events
and dates for the delivery, and installation of the Equipment at the Premises
are attached as Appendix 4
"Installation" shall mean opening up of crating, supervision of offloading and
supervision of location into Final Position and inspection of the Equipment or
any part thereof, connection of items
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comprising the Equipment, setting to work (including removal of internal
restraints and packaging used for the purpose of transit) and testing and
commissioning of the Equipment or any part thereof.
"Other Equipment" shall mean the security systems and equipment comprised in the
security systems as set out in Appendix 6 at the locations specified in the said
Appendix and supplied pursuant to the Contracts therein specified.
"Premises" shall mean the place or places other than the Contractor's premises
to which the Equipment is to be delivered for storage.
"Project" shall mean a defined scope of work as part of BAA's investment
programme which shall include, but shall not be limited to installation of hold
baggage screening equipment.
"Proprietary Information" shall mean all patentable and non-patentable designs,
inventions, know how, copyright, business, commercial or industrial information
or property of or relating to a party or its interests or business in whatever
form recorded which is notified as Proprietary to the other party. .
"Site" shall mean the airport location or locations and any place or places
therein where the Equipment is to be delivered or placed for installation but
excluding the Final Position.
"Site Acceptance Test" shall mean the tests detailed in the Specification and/or
the Performance Test schedule agreed between the Company and the Contractor
attached as Appendix 7 following
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installation of the Equipment or any part thereof to demonstrate the performance
of the Equipment or such part as the case may be.
"Software" shall mean any and all computer or other software programmes and
documentation relating thereto in printed form or in any of several possible
machine readable forms including, but not limited to, magnetic tape or disc,
paper tape or read only memory (ROM) device.
"Sub-Contractor" shall mean any person, firm or Company including its legal
representatives, successors and permitted assigns to whom the Contractor sub-
contracts the execution of any part of the Works.
"Supervising Officer" shall mean the person or persons for the time being or
from time to time duly appointed by the Company and notified in writing to the
Contractor to act as the Company's representative for the purpose of the
Contract or in default of such notification, the Company.
" Works" shall mean the manufacture, supply, and installation, testing and
commissioning of the Equipment by the Contractor in accordance with the Contract
and includes but is not limited to the provision of installation record
drawings, maintenance manuals, operating instructions, test reports and data and
drawings as required by the Contract, but does not include Contractor Service as
defined in Appendix 6.
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"Warranty Period" means the period of one year after the date stated on the
Certificate of Acceptance as the date on which Equipment passed Site Acceptance
Tests, or any extension thereof pursuant to the Contract or the payment of the
ten percent balance of the Contract Price.
1.2 The documents comprising the Contract shall be regarded as mutually
explanatory of each other. In the event of any discrepancies or divergence's in
or between the Contract documents they shall be resolved in the following order
of precedence.
1. Articles of Agreement
2. Contract Appendices
1.3 The Contract represents the entire agreement between the parties with
respect to the WorkS and supersedes all prior negotiations, representations or
agreements whether written or oral unless and to the extent that they are
expressly incorporated.
1.4 If any term, provision or condition of the Contract is held to be
unenforceable, invalid or illegal to any extent, such term, provision or
condition shall to that extent be deleted, but such deletion shall not affect
any other term, provision or condition of the Contract which shall otherwise
remain in full force and effect.
1.5 Words used in the singular shall include the plural and vice versa. Words
in the masculine neuter shall include the feminine and vice versa. The headings
to the conditions are for convenience only and shall not be used in the
interpretation of the Contract.
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2. CONTRACTOR'S OBLIGATIONS
2.1 The Contractor shall carry out and complete the Works strictly in
accordance with the Contract.
2.2 The Contractor shall forthwith comply with any direction or instruction
given to him by the Supervising Officer. All instructions and directions shall
be in writing.
2.3 The Contractor shall at all times assign to the Works during the execution
thereof a competent person in charge and any direction or instructions issued to
him by the Supervising Officer shall be deemed to have been issued to the
Contractor. The Contractor shall notify the Supervising Officer in writing of
the identity of the person in charge and shall forthwith notify the Supervising
Officer in writing if the person in charge is changed.
3. CONTRACTOR TO INFORM HIMSELF FULLY
3.1 The Contractor shall be deemed to have taken reasonable steps as of the
Effective Date to have satisfied himself as regards to existing roads, railways
and other means of communication or access to the Premises, the Site and the
Final Position, the risk of injury or damage to property adjacent to on or in
the Premises, the Site and the Final Position or to the occupiers of any
property adjacent to or in the Premises, the Site and the Final Position the
conditions under which the Works will be executed, the supply of and conditions
affecting labour, the facilities for obtaining anything, whether or not for
incorporation into the Works and generally to have obtained his own information
on all matters
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affecting the Works or any part thereof, provided always that if and to the
extent the Company undertakes to provide , or provides information, the
Contractor to that extent may rely on receipt of such information on a timely
basis, and on the accuracy of any such information so provided. The Company
agrees to provide the Contractor with all relevant information provided
generally to contractors at the relevant Site, and shall invite the Contractor
to all relevant project management meetings with other contractors..
3.2 No claim by the Contractor for additional payment will be allowed on the
grounds of misunderstanding or misinterpretation of the matters referred to in
clause 3.1 as the Contractor's responsibility, nor shall either party be
released from any obligation or liability imposed or undertaken by him under the
Contract on any such ground or save as provided in clause 12, on the grounds
that he did not or could not foresee any matter which might affect or have
affected the execution of the Works.
3.3 Save as otherwise provided in this Agreement , the Contractor shall provide
everything necessary for the successful carrying out and completion of the Works
in accordance with the Contract.
4. THE FINAL POSITION
4.1 The Contractor shall provide to the Supervising Officer full, proper and
adequate information in sufficient time to enable the Company to prepare the
Final Position and to provide therein such services, equipment, facilities and
environmental conditions as are specified by the Contractor to enable the
Contractor to carry out and complete the Works.
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4.2 Provided always that the Contractor has provided the information referred
to and in accordance with clause 4.1 The Company shall at its own expense ensure
that such preparation and provision of the Final Position as described in
clause 4.1 is completed in accordance with the Installation Schedule.
4.3 (deleted)
4.4 Subject to clause 4.7 the Supervising Officer shall ensure that the
authorised personnel of the Contractor have such access to the Premises the Site
and the Final Position as may be reasonably necessary for the carrying out of
the Works provided always that the Supervising Officer shall have the right to
refuse to admit to, or order the removal from, the Premises and/or the Site any
person employed by or acting on behalf of the Contractor or any Sub-Contractor
who, in the sole opinion of the Supervising Officer, whose decision shall be
final and binding, is not a fit and proper person to be on the Premises or the
Site. Any such action taken by the Supervising Officer under clause 4 shall be
forthwith confirmed in writing to the Contractor by the Supervising Officer and
shall not relieve the Contractor of any of his obligations under the Contract.
This clause shall not be applied frivolously, vexatiously or unreasonably.
4.5 The Contractor shall take reasonable steps to ensure that in the execution
of the Works neither he nor his servants agents or Sub-Contractors cause any
wrongful interference whatsoever to the operations of the Company or those of
any other Contractor engaged by the Company or of any other person at or using
any property of the Company and shall ensure that neither he nor any servant
agent or Sub-Contractor wrongfully interferes with any plant, ways, works,
appliances or other property belonging to the Company or any other person.
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4.6 The Contractor may work on the Premises and the Site and the Final Position
only with the permission of the Supervising Officer, but such permission will
not be unreasonably withheld.
4.7 (a) The Contractor shall comply with all security requirements and
regulations of the Company. Without prejudice to the generality of the
foregoing, it is the responsibility of the Contractor to obtain in good time
from the Company all security passes and other documents required for his
personnel and vehicles. A charge will be made for replacement of any pass. All
security passes and documentation shall be returned to the Company immediately
upon termination of this agreement or completion of the Works whichever is the
earlier failing which the Contractor shall pay or allow to the Company a sum not
exceeding (Pounds)250.00 for each and every security pass not returned and may
be liable to prosecution under the provisions of the Aviation and Maritime ▇▇▇
▇▇▇▇.
(b) The theft or loss of any security pass or other documentation referred
to in sub-clause 4.7 (a) shall in the first instance be reported by the
Contractor to the Police and the Company.
5. PROVISION OF INFORMATION
5.1 The Supervising Officer shall provide to the Contractor such drawings or
details or further information from time to time, as are reasonably necessary to
enable the Contractor to carry out and complete the Works in accordance with the
Contract.
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5.2 Each party shall be responsible for any discrepancies, errors or omissions
in any drawings, documentation or other written information supplied by him,
whether they have been approved by the other party or not, provided always that
such discrepancies, errors or omissions are not due to inaccurate drawings or
information and decisions supplied in writing to a party by the other party .
Each party shall at his own expense rectify any such discrepancy error or
omission without delay.
6. INSTALLATION SCHEDULE
6.1 The Contractor shall carry out the Works in accordance with the
Installation Schedule and shall, subject to any extension of time given pursuant
to the Contract complete the Works by the Completion Date.
6.2 Notwithstanding anything expressed or implied to the contrary in this
Agreement neither Party shall have any liability whatsoever to the other for any
delay or disruption arising out of or in connection with any failure of either
party to comply with the Installation Schedule.
7. DELIVERY, INSTALLATION AND COMMISSIONING OF EQUIPMENT
7.1 The Equipment and each and every part thereof shall be adequately packed,
protected and secured by the Contractor in such a manner as to reach the
Premises or Site, or such other address as the parties may agree, in good and
working condition.
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7.2 The cost of such packing including, without limitation the cost of any
packing cases, crates or any other packing material shall be included in the
Contract Price. The Company shall not be required to return all or any of the
packing cases, crates or any other packing material to the Contractor.
7.3 The Contractor shall ensure that the contents and relevant Contract number
are all marked clearly on the outside of each container or package.
7.4 Title to Equipment shall pass on initial Delivery to the Premises or the
site, whichever is earlier, on a DDU basis (Incoterms 1990). Upon Company
request following such initial Delivery, the Contractor shall arrange for
storage at the Premises, and for international shipment, insurance, customs
clearance and inland freight of the Equipment to Site, all at the Company's
expense but with the Contractor to bear all risk of loss or damage to the
Equipment provided that in the case of any such loss occurring after such
initial Delivery, the Contractor shall not be responsible for delays in meeting
the Installation Schedule by reason of such loss, unless such loss or damage is
caused by the sole negligence of the Contractor and not its Agents. The
Contractor shall use reasonable efforts to replace or repair systems subject to
such loss. The Contractor shall advance expenses associated with such storage
and shipment, subject to Company reimbursement upon invoice.
7.5 The Company shall be responsible for offloading and moving Equipment at the
Site to the Final Position, for supplying and connecting Equipment to external
power and fibre optic cables (to be supplied by the Company or its agents), in
all accord with the Contractors directions and the Installation Schedule, and at
the Company's sole risk and expense.
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7.6 The Contractor shall be responsible for Installation of the Equipment .
8. SITE ACCEPTANCE TESTS
8.1 Site Acceptance Tests will be carried out on completion of the Equipment or
any item comprising the Equipment.
8.2 When the Contractor is ready to commence the Site Acceptance Tests, he
shall notify the Supervising Officer and such tests shall commence on the date
agreed by the Supervising Officer and the Contractor but in any event shall not
be later than fourteen working days after the date of the notice referred to
herein or thirty days after Delivery of the Equipment to the Site whichever is
the sooner. If the Company fails to designate a date for the commencement of
Site Acceptance Tests within fourteen days following Contractor notice that he
is ready to commence such Site Acceptance Tests. The Company shall pay for the
Equipment. In the event that the Equipment subsequently fails Site Acceptance
Tests, the Contractor shall reimburse the payment until such time as the
Equipment meets the requirements of the Site Acceptance Tests.
8.3 The Contractor shall provide the Company with three copies of all documents
and records produced as a result of or in connection with the Site Acceptance
Tests and listed in Appendix 7 hereto
8.4 If the Equipment or any part thereof fails to pass the Site Acceptance
Tests or the Contractor accepts that the Equipment is not in accordance with the
Contract, then, without prejudice to the
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Company's rights under clause 15, the Contractor shall make good any defects at
his own expense and with all reasonable speed diligence and shall submit details
to the Supervising Officer and the Site Acceptance Tests shall be repeated.
8.5 If the Equipment or any part thereof fails to pass the Site Acceptance
Tests by the date specified in the Installation Schedule or if no date is
specified within a reasonable time, then, the Company may in its absolute
discretion:
8.5.1 accept the Equipment subject to such reasonable reduction in the Contract
Price as may be agreed between the Company and the Contractor, or in the
abscence of any agreement being reached as may be determined by an arbitrator
under clause 32; or
8.5.2 reject the Equipment or any part thereof and the Contractor shall
entirely at its own cost and without any entitlement to any additional time,
replace the Equipment or any part thereof so rejected, or
8.5.3 terminate the employment of the Contractor under the Contract in
accordance with clause 22.
Provided always that the Company shall first have given the Contractor an
opportunity to rectify any defect or fault in the Equipment and the Contractor
has failed to rectify the same within a reasonable time.
9. ACCEPTANCE
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9.1 As soon as the Equipment has passed the Site Acceptance Tests, the
Supervising Officer shall issue to the Contractor a Certificate of Acceptance
which shall state the date on which the Equipment has passed the Site Acceptance
Tests.
10. EXTENSION OF TIME FOR COMPLETION
10.1 If the Contractor is or is likely to be delayed in completing the Works
beyond the Completion Date by reason of any act or omission on the part of the
Company or the Supervising Officer including any change instigated by the
Company in accordance with Appendix 5 or any delay by the Company in preparing
the Premises pursuant to clause 4.2 or affording access for the Contractor to
the Premises or the Site or the Final Position, pursuant to clause 4.4, provided
that the Contractor shall as soon as reasonably practical, give the Supervising
Officer notice in writing of his claim for an extension of time with full
supporting details the Supervising Officer shall on receipt of such notice grant
to the Contractor such extension of Time to the Completion Date as may in all
the circumstances be reasonable.
10.2 In all cases the Contractor and the Company shall take all reasonable steps
to overcome or minimise the actual or anticipated delay.
11. PRICE AND PAYMENT
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11.1 The Contract Price shall include all taxes and duties of every kind
payable by the Contractor pursuant to any rule, regulation, statute order or
other legal requirement under the law of any state in the United States, but
shall be deemed to exclude all taxes and duties payable in respect of the
Equipment or the Works under any statute, rule, regulation or order of any
authority in the United Kingdom (hereafter the "UK taxes"). The Company shall
in addition to the Contract Price reimburse to the Contractor any such UK taxes.
11.2 Payment to the Contractor shall subject to clauses 11.3 and 11.4 be made by
the Company in accordance with the following terms:
11.2.1 The Company shall pay ninety percent (90%) of the proportion of the
Contract Price due in respect of any Complete System or other Equipment or item,
except spare parts, ordered pursuant to this Agreement, upon Delivery.
11.2.2 The Company shall pay the balance of ten percent (10%) of the
Contract Price or such proportion thereof due in respect of any Complete System
, Equipment, or other item on issue of a Certificate of Acceptance under clause
9.1 or pursuant to clause 8.2 of the Contract.
11.2.3 The Company shall pay one hundred percent (100%) of the Contract
price due for the supply of spare parts upon Delivery.
11.3 The Contractor shall submit invoices, together with such supporting
documentation as the Company may reasonably require, clearly stating the amount
due, details of any taxes, duty and other
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costs as described in Appendix 3 hereto. Invoices may be submitted by facsimile
provided that the original is submitted immediately thereafter in the post.
Invoices may be submitted on Delivery.
The Company shall make payment through an agreed method of payment of the
amounts due within thirty days of receipt of correct invoices.
11.4 Invoice(s) shall be addressed to: the address set out in Appendix 1.1 with
duplicate copies sent as therein provided or such other person or persons and at
such other address or addresses as the Company may from time to time notify the
Contractor in writing.
11.5 If by reason of any instruction or direction given by the Supervising
Officer, other than an instruction or direction given in relation to any default
or negligence of the Contractor, the Contractor, suffers loss and/or expense for
which he would not be reimbursed under any other provision of this Contract, the
Contractor shall as soon as reasonably practical give notice in writing of such
direct loss and/or expense to the Supervising Officer. If the Supervising
Officer agrees that the Contractor has suffered any such direct loss and/or
expense as is referred to herein then the Company shall reimburse as soon as is
reasonably practical the same or the amount agreed by the Supervising Officer in
accordance with the terms of clauses 11.3 and 11.4.
12. FORCE MAJEURE
12.1 Neither party shall be liable to the other for failure to perform its
obligations under the Contract if such failure results from Force Majeure.
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12.2 If either party is prevented or impeded from performing any of its
obligations by Force Majeure it shall promptly give notice to the other party
stating the circumstances which are Force Majeure and the extent and likely
duration thereof. Thereupon such obligations as are so prevented or impeded by
Force Majeure may be suspended for as long as the circumstances of Force Majeure
subsist. The party affected by Force Majeure shall make every reasonable effort
to minimise the effects thereof and shall promptly resume performance of its
obligations as soon as possible after removal of the circumstances of Force
Majeure.
13. PATENTS, DESIGNS AND COPYRIGHT
13.1 All royalties licence fees or similar expenses payable in respect of the
supply or use of or in connection with the Equipment at the Site and in respect
of any invention, process, drawing, model, plan or information produced or used
for or in connection with the Equipment and/or the Works at the Site shall be
included in the Contract Price and the Contractor shall indemnify and hold
harmless the Company from and against all claims proceedings loss cost expense
or damage which may be made suffered or incurred in connection with any such
royalties, licence, fees or similar expenses.
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13.2 If as a result of an infringement or alleged infringement of letters,
patents, trademarks or trade secrets or any other intellectual property rights
the Company is prohibited from using the Equipment or any part thereof at the
Site, then the Contractor shall at his own expense modify or replace the
Equipment or such part or if such modification is impractical the Contractor
will accept return of the Equipment and grant to the Company a credit for the
said Equipment as depreciated on a five year straight line basis. Save as
provided herein no such modification or replacement shall relieve the
Contractor from any of its obligations under the Contract.
13.3 The Contractor shall defend, indemnify and hold harmless the Company from
and against any loss, costs, expenses, claims, damages or proceedings suffered
or incurred by the Company as a result of any claim that the Company's use of
the Equipment at the Site infringes or allegedly infringes any patents,
trademarks, trade secrets, copyrights or other intellectual property rights of
any third party pursuant to the laws of England. In the event that any claim
is made, the Company shall promptly notify the Contractor of the assertion
thereof and will permit the Contractor to assume control of and defend any
proceedings. Each party shall co-operate with the other and shall furnish all
such aid, information and assistance as is reasonably necessary to defend such
claims. This obligation shall not apply in respect of any claims or proceedings
made or brought in relation to any changes made to the Equipment whatsoever by
any party other than the Contractor, without the Contractor's prior written
consent.
14. WARRANTIES
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14.1 The Contractor warrants and guarantees that as of the date of Site
Acceptance, and for the Warranty Period, the Equipment will meet or exceed the
detection performance levels currently allowed for use by the UK Department of
Transportation ("DoT") when operated to a protocol and at settings previously
agreed upon with DoT. The level of performance is documented in test reports
based on testing performed by the DoT at Glasgow Airport in December 1993.
14.2 Subject to clause 14.3 hereof, the Contractor warrants and guarantees that
as of the date of Site Acceptance, and for the Warranty Period, the Equipment
will perform to the Standard of Performance as defined by:
14.2.1 all directions issued by the United Kingdom Regulatory Authority
responsible for Aviation Security Matters and provided to the Contractor as of
the Effective Date: and
14.2.2 the specifications set out in Appendix 2 and the System
Verification Procedure set out in Appendix 7 to this Agreement.
14.3 The Contractor shall use his best endeavours to obtain all necessary
approvals or acceptance of the Equipment from the Regulatory Authority described
in clause 14.2.1 above.
14.4 The Company undertakes and warrants that it will operate and maintain the
Equipment in accordance with its responsibilities pursuant to Appendix 6 hereof
and the Contractor's technical directions and specifications as supplied by the
Contractor in accordance with clause 31 hereof. This
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clause 14 and the Contractors warranties contained herein shall not apply
insofar as the Company fails to comply with said technical directions or to
maintain the Equipment in accord with the Contractor's technical specification ,
or with respect to any condition resulting from the Company's negligence, abuse
or operation of Equipment outside of published performance specifications,
natural disaster, external causes (including fluctuation in electric power,
inadequate coding or other unusual physical or electrical stress) or
modification of Equipment in any manner not approved in writing by the
Contractor.
14.5 Equipment Warranty claims under clause 14.1 or 14.2 may be initiated by the
Company at any time by contacting the Contractor by telephone, facsimile or
mail, obtaining a valid return material authorisation number and returning the
defective part to the Contractor in accord with the Contractor's return material
authorisation operation procedure, document No.▇▇▇▇-▇▇▇▇▇-▇▇, as it may be
amended from time to time. Defective parts shall be removed from the Equipment
by the Company, returned to the Contractor and replacement or repaired items
installed at no cost to the Contractor. Upon Company notice of an Equipment
Warranty claim, the Contractor shall immediately ship on and deliver carriage
paid, on a replacement basis, refurbished or replacement Equipment or parts to
the Company at no cost to the Company. Any defective part so returned to the
Contractor shall become the property of the Contractor.
14.6 The above warranties are exclusive warranties, and no other warranty,
whether express or implied, written or oral, shall apply to the subject of this
Agreement. The Contractor specifically disclaims any implied warranty of
merchantability or fitness for a particular purpose.
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15. DELETED
16. DELETED
17. INDEMNITY, INSURANCE, & LIMITATION OF LIABILITY
17.1 Subject to partial reimbursement of premiums by the Company pursuant to
appendix 3 hereof, the Contractor shall, unless otherwise agreed in writing by
the Company, effect and maintain to the extent it is available, for the duration
of the Warranty Period and any extension thereof, Aviation Products Liability
Coverage in respect to the Equipment subject to this Agreement as described in
Appendix 9 hereto, and in the amount of one hundred and fifty million US
dollars ($150,000,000) for any one occurrence, and in the aggregate, including
within such limit grounding liability for up to US$100,000,000 for any one
grounding, and in the aggregate (all as terms are used in Appendix 9)
17.2 Solely for the duration of the Period during which the Contractor is
providing warranty and service pursuant to Appendix 6 hereof, the Contractor
shall indemnify and hold harmless the Company from and against any and all
expenses, liabilities, losses, demands, costs, claims, damages and proceedings
against the Company to the extent that such liability is a result of: any
Contractor breach
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CONTRACT NO. GP/0583/95/TG
of Contractor's warranties set forth in clause 14 of this Agreement;
Contractor's wilful, wanton, or grossly negligent tortuous act; or Contractor's
negligence; provided always that any and all Contractor liability hereunder
shall be limited to, and shall not exceed the coverage's then in effect pursuant
to the Aviation Products Liability Coverage described in clause 17.1 hereof..
17.3 Save as expressly provided in clause 17.2 hereof the Contractor shall not
in any event be liable for any special, incidental, or consequential damages,
including but not limited to economic loss, loss of profits, loss of business,
or loss of revenue directly or indirectly arising from the sale, handling, use
or service of the Equipment or the Works, or from any cause whatsoever relating
to the subject of this Agreement, as expressly provided for in clause 17.2
hereof, the Contractor's entire liability under this Agreement and for any claim
relating to the Works, the Equipment, Service, or to any other cause whatsoever
relating to the subject of this Agreement, whether said claim is based in
Contract, tort, negligence, warranty, strict liability or otherwise, is
expressly limited to the replacement (but not the installation unless said claim
relates to service required to be provided by the Contractor under MAAP Service)
of components or subcomponents of the Equipment subject to the claim, or upon
agreement of the parties, to the replacement of, or crediting the Company with,
an amount equal to the purchase price of the Equipment subject to the claim. The
provisions of this Agreement reflect an agreed upon allocation of risks of loss
or damage. the Company acknowledges that but for such allocation, the
consideration would be substantially higher, or the Contractor would not have
entered into this Agreement.
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18. OWNERSHIP
18.1 Unless otherwise provided in the Contract title to the Equipment or any
part thereof shall become vested in the Company on Delivery of the same to the
Premises or Site whichever is the earlier.
19. MAINTENANCE
19.1 Unless otherwise agreed in writing, the Company shall maintain the
Equipment in accordance with the provisions set out in Appendix 6A.
19.2 Subject to Company payment of the fees therefor as set out in Appendix 3
hereof, the Contractor will provide the Services described in Appendix 6 hereof,
in accord with the terms thereof. Said Services will be supplied in one-year
terms, coextensive with the initial Equipment Warranty term, and any extension
thereof.
20. SPARES, TOOLS AND TEST EQUIPMENT
20.1 The Contractor shall from time to time at the request of the Company
provide within a reasonable time and at the prices set out in Appendix 6 those
spares, replacement parts, tools and test equipment as listed in Appendix 6, as
the Company may from time to time order.
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CONTRACT NO. GP/0583/95/TG
20.2 The Contractor shall maintain a supply of such spares, replacement parts,
tools or test equipment as are referred to in clause 20.1 for a period of five
years from the date of issue of the Certificate of Acceptance, such items to be
fully compatible with but not necessarily identical to similar items previously
supplied.
20.3 If during the period stated in sub clause 20.2, the Contractor or his Sub-
Contractors or suppliers intend to discontinue the manufacture of spares,
replacement parts, tools or test equipment for the Equipment the Contractor
shall forthwith give written notice to the Company of such intention and afford
the Company the opportunity to order such quantities of such spares, replacement
parts, tools or test equipment in such quantities as the Company shall
reasonably require in relation to the anticipated life of the Equipment at
prices set out in Appendix 6. Such order to be placed by the Company with the
Contractor within three months of the date of request by the Company of the
written notice referred to herein.
20.4 The Company may in lieu of its rights under clause 20.3 within the period
of three months referred to therein, purchase from the Contractor and the
Contractor shall sell at a price to be agreed between the Company and the
Contractor and if no price is agreed a reasonable price such drawings, patterns,
specifications and other information as the Contractor may have in his
possession and as the Company shall require to enable it to make or have made
such spares replacement parts tools or testing equipment.
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20.5 The Company shall pay to the Contractor all sums due or which may fall due
under clauses 20.1 to 20.4 within thirty days of receipt at the address shown in
the relevant Purchase Orders on submission by the Contractor of correct
invoices.
21. SOFTWARE
21.1 The Contractor shall grant to the Company a perpetual and irrevocable and
royalty free right and licence to use the Software as installed on the Equipment
for the purpose of operating the Equipment, and for no other reason. Without
prejudice to the generality of clause 21.1.1 hereof the Company may grant
access to any person who may need to use the Software for any purpose permitted
by this Agreement relating to or in connection with the Equipment.
21.2 All intellectual property rights including copyright in all Software shall
vest in and remain the absolute property of the Contractor at all times
including any and all amendmentS and modifications thereto issued by the
Contractor pursuant to this Contract. Save as provided herein no right of
ownership or licence to exploit or any other right is transferred to the
Company. Software is valuable to the Contractor and shall be treated as
confidential information subject to the confidentiality provisions of this
Agreement. If the Company sells any Equipment purchased hereunder to a third
party, the Company will be permitted to sub-license the third party to use the
software for the operation of the Equipment sold hereunder provided that such
third party agrees to be bound by the terms and
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conditions of this Agreement relating to Software. Except as expressly provided
in this clause 21. The Company will have no right to sell, assign, transfer,
copy or sub-license the Software.
2.1.3 The Company shall only make so many copies of the Software or any portion
thereof as are reasonably necessary for operational security and use of the
Equipment.
21.4 The Contractor shall not modify, change or in any other way alter the
Software supplied under this Contract without the prior consent of the Company,
which shall not be unreasonably withheld.
21.5 During the Warranty Period, or any extension thereof, the Contractor shall
make available to the Company at no cost to the Company all Software updates
issued by the Contractor which are applicable to the Equipment and all Other
Equipment which do not require the use of additional hardware and which are
generally released by the Contractor without additional charge as a field
service update.
21.6 The Contractor's obligation under sub-clause 21.5 shall be limited to
providing the Company with one copy on disc of the Software as referred to
therein. All costs associated with the installation of the Software shall be
borne by the Company which shall have the right and licence to make such copies
as it requires for the proper use of the Equipment and the Other Equipment.
21.7 No changes to or in the Software shall reduce the performance of the
Equipment or Other Equipment or any part thereof without the prior written
approval of the Company and such changes shall in any event provide a standard
of performance equal to or better than the performance exhibited
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in tests conducted by the United Kingdom Department of Transport at Glasgow
Airport in December 1993.
22. TERMINATION
22.1 The Company may at any time by giving not less than thirty days notice in
writing, terminate the Contractors employment under the Contract, if for any
reason the Project does not proceed.
22.2 Either Party shall be entitled to terminate the Contract, in whole or in
part, by notice in writing if the other party through its employees, agents or
sub-contractors either directly or indirectly through the agency of any other
person commits any material breach of the terms of the Contract provided always
that in the case of a remediable breach the non-breaching party shall first have
given written notice to the breaching party of the breach and the breaching
party has failed to commence to remedy the same within fourteen days of the date
of the notice or such other longer period as is in all the circumstances
reasonable;
22.3 This Agreement may be terminated by either party in the event that (a) a
case seeking relief under any bankruptcy law or any law relating to bankruptcy,
insolvency, reorganisation, winding up, or composition or adjustment of debts is
(i) initiated by the other party (the "Insolvent Party") or (ii) commenced by a
third-party and remains unstayed or undismissed for thirty days from the date of
filing; or (b) the Insolvent Party shall apply for to fail to contest, the
appointment of a receiver,
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liquidator, custodian, trustee or the like for all or a major part of its
property, or (c) the Insolvent Party shall make a general assignment for the
benefit of its creditors.
22.4 In the event of determination pursuant to clause 22.1 hereof , then the
sole liability of the Company to the Contractor in respect of any work completed
prior to the date that notice of termination is received by the Contractor shall
be to pay any sums which are or would become due but for the termination
pursuant to clause 11 hereof. In addition, as to Works which are incomplete, the
Company shall pay such a sum as reflects the amount of work done in connection
with the Works to the date of termination and agreed upon an amount reflecting
the Contractors reasonable and demonstrable costs as a consequence thereof,
including costs of components on order and in inventory, direct costs and
associated overhead, and the Contractor's profit as well as costs incurred in
cancelling any order with any sub-Contractor or supplier as the case may be for
which the Contractor is legally liable.
When the Contractor is paid in respect of any Equipment or goods ordered the
same shall immediately become the property of the Company.
22.5 In the event of termination of this Agreement, pursuant to the provisions
of clause 22.2 hereof the Company's liability to the Contractor in respect of
the Works and the determination shall be to immediately pay to the Contractor
any sums due to it pursuant to clause 11 hereof , in addition as to works which
are incomplete, the Company shall pay such a sum as reflects the amount of work
done in connection with the Works and Contractor's service to the date of
termination. When the Contractor is paid in respect of any Equipment or goods
ordered the same shall immediately become the property of the Company.
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22.6 Save as expressly set out in this Agreement, the Contractor expressly
waives any additional right of recovery on termination.
22.7 Termination of the Contractor's employment under the Contract by the
Company for any reason whatsoever under the terms hereof shall be without
prejudice to any rights of action or remedy of either party in respect of any
antecedent breach of the terms hereof by the other.
23. ESCROW
23.1 The Contractor shall at the request and expense of the Company together
with the Company enter into Escrow Agreement with a third party nominated by the
Contractor but subject to the prior approval of the Company, such approval not
to be unreasonably withheld for the deposit of a copy of the source-coding of
the Software together with any updates thereof and/or such other technical
detailS as may be required by the Company.
23.2 Any Escrow Agreement entered into pursuant to the terms of the Contract
shall contain provisions for the release of the deposited materials to the
Company in the event of:
23.2.1 the bankruptcy or insolvent liquidation of the Contractor or,
23.2.2 the termination of the Contract by the Company under the provisions
of sub-clause 22.
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Provided that the deposited materials shall not be released to the Company
without the consent of the Contractor under the provisions of sub-clause 25.1
unless the matter has been referred to arbitration under clause 32 when the
decision of the arbitrator shall be final and binding on all parties concerned.
24. NON TRANSFER OF DUTIES
24.1 This Agreement is personal to the Contractor who shall not assign or
transfer or sub-Contract or charge or purport to transfer sub-Contract or change
the duties herein contained or any part thereof to any person except with the
prior written consent of the Company.
24.2 No sub-letting of the Works or any part of them to any other person shall
relieve the Contractor of any of his obligations under the Contract and the
Contractor shall be fully responsible for any act omission or default of any
Sub-Contractor.
25. CONFIDENTIALITY
25.1 The Contractor and the Company each undertake to the other that they shall
not (save in the proper performance their respective obligation under the
Contract) without the prior consent of the other disclose to any person any
Proprietary Information of or relating to the other party or their respective
business or interests or those any parent, subsidiary or associate Company of
the Company or the Contractor as the case may be or of any third party at or on
the premises of the Company or of any parent subsidiary or associate Company as
aforesaid and which the disclosing party has notified the receiving party is
confidential (hereafter referred to as "Confidential Information") provided
always
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that the undertakings and obligations of the Receiving Party shall not apply to
any Confidential Information which: (i) is or becomes in the public domain
through no action on the part of the Receiving Party, (ii) is generally
disclosed to third parties by the Disclosing Party without restriction, (iii) is
independently developed by the Receiving Party without reference to Disclosing
Party's Confidential Information, (iv) is approved for release by written
authorisation of the Disclosing Party, (v) is disclosed pursuant to an order of
a court or governmental agency, provided that the Receiving Party notifies the
Disclosing Party and affords it an opportunity to oppose such an order. Upon
request by the Disclosing Party, the Receiving Party will promptly deliver to
the Disclosing Party or destroy all documents, regardless of how recorded, in
its possession or under its control, which contain Confidential Information.
25.2 The Contractor and the Company shall each only divulge Confidential
Information to those of their employees and then only to the extent necessary
who are directly involved in the Contract or require the same for the use of the
Equipment, and will ensure that such employees are aware of, and comply with,
these obligations as to confidentiality and both parties shall place the same
obligation on their Sub-Contractors, agents or such other persons as may be
associated with the Contract.
25.3 The Contractor shall not, without the prior written consent of the
Company, take any photographs or make any other graphical reproduction at or of
any premises, property or equipment owned by the Company or by any parent,
subsidiary or associate Company of the Company or of any property or equipment
of any third party at or on any premises of the Company or of any parent,
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subsidiary or associate Company of the Company as aforesaid. Any consent shall
be given subject to any such terms and/or conditions as the Company may in its
absolute discretion think fit.
26. TRAINING
26.1 The Contractor shall provide adequate instruction for the number stated in
Appendix 8 of the Company's personnel to permit the safe satisfactory and
efficient maintenance of the Equipment. This training will include, but not be
restricted to, the training specified in Appendix 8, or elsewhere in the
Contract.
27. STATUTORY AND OTHER REGULATIONS
27.1 The Contractor shall at all times and in all respects comply with and
give all notices required by any statute, statutory instrument, order, law,
rule, regulation or bylaws applicable to the Works, and all notices,
instructions and special requirements received from the Company from time to
time.
27.2 The Contractor shall at all times immediately comply with any
direction or instruction issued or given by or on behalf of the Managing
Director responsible for the Premises or the Site or any part thereof as a
consequence of any direction given under the Aviation Security ▇▇▇ ▇▇▇▇ and the
Aviation and Maritime Security ▇▇▇ ▇▇▇▇. The Contractor shall be deemed to have
notice of all such
36
directions and instructions issued prior to the date hereof upon supply of
copies to the Contractor by the Company.
27.2.1 The Contractor shall ensure that all his staff employed for the
purposes of this Contract wear in a clearly visible position at all times when
on duty at the Premises an official Company identity card which shall be
obtained from the Company's Airport Security Branch.
27.2.2 In the event that the Contractor at any time during the period of
the Contract within a reasonable time, fails to comply with any Directions
and/or Instructions issued by or on behalf of the Managing Director responsible
for the Site or Premises or the relevant part thereof under the Aviation
Security Act 1982 which results in the withdrawal of all or any security passes
such withdrawal shall not relieve the Contractor of his obligations under the
Contract.
28. BYLAWS
29.1 The Contractor shall and shall ensure that each of its employees agents and
Sub-Contractors shall at all times whilst on the Company's Premises observe and
comply with any Bylaws in existence and which may from time to time be supplied
to the Contractor by the Company relating to the Premises and/or the Site and
also any directions relating to the administration or operation of the Premises
and/or the Site. A copy of the Company's bylaws will be supplied by the
Procurement Department of the particular Premises and/or Site in which
performance of the Works is being undertaken.
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29. WAIVER
29.1 The failure of either party in one or more instances to insist upon
the performance of any of the terms of this Contract or to exercise any rights
hereunder shall not be construed as a waiver or relinquishment to future
exercise of any such right and the obligations of the other shall continue in
full force and effect.
30. PUBLICITY
30.1 The Contractor shall not, without the prior written consent of the
Company, advertise or publicly announce that he is undertaking work for the
Company and the Contractor shall place the same obligation on his Sub-
Contractors.
31. DOCUMENTATION
31.1 The Contractor shall supply to the Company all operating manuals and other
documentation necessary for the safe and satisfactory operation of the Equipment
as specified in the Contract. If, at any time after the date of issue of the
Certificate of Acceptance, the operating Manuals and documentation are or
require to be updated or replaced the Contractor shall supply such updates or
replacements to the Company at fair and reasonable prices.
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32. ARBITRATION
32.1 If any difference or dispute shall arise between the parties as to the
construction of this Contract or any matter or thing of whatsoever nature
arising hereunder or in connection with the Contract and such dispute or
difference cannot be amicably resolved between the parties the same shall be and
is hereby referred to the determination of an arbitrator agreed upon between the
parties within fourteen days of either party giving to the other written notice
of the dispute or upon failure to so agree within fourteen days after the date
of the aforesaid written notice, of a person to be appointed on the request of
either party pursuant to the rules of the International Chamber of Commerce .
Any such arbitration shall be conducted pursuant to the rules of the
International Chamber of Commerce, applying the procedural and substantive law
of England. The award of the Arbitrator shall be final and binding. Arbitration
shall take place in London and shall not be commenced until after completion or
abandonment of the Works provided always that any dispute as to any matter
concerning payments allegedly due to the Contractor may be immediately referred
to arbitration as herein provided notwithstanding that the works have not been
completed or abandoned.
33. LAW
33.1 Whatever the nationality, residence or domicile of the Company or the
Contractor and wherever the Works or any part thereof are situated the law of
England shall be the proper law of the Contract. The Contract shall be subject
to and construed and interpreted in accordance with the Law of England and shall
be subject to the exclusive jurisdiction of the English Courts.
39
