EXHIBIT 10.103
TEAMING AGREEMENT
BETWEEN
SIEMENS MAINTENANCE SERVICES, LLC
AND
HI-ENERGY TECHNOLOGIES, INC.
THIS AGREEMENT, made this 4th day of August, 2004, by and between Siemens
Maintenance Services, LLC (SMS), a Delaware corporation (hereafter "MEMBER") and
Hi-energy (hereinafter "PRIME"), and collectively hereinafter called the
parties.
W I T N E S S E T H
WHEREAS, teaming together and submitting proposals utilizing the combined skills
of the parties will offer the Client the most advantageous combination of
capabilities to achieve Project objectives;
NOW, THEREFORE, in consideration of the premises, promises, covenants and
agreements contained herein, the parties agree as follows:
ARTICLE 1. PURPOSE OF TEAMING AGREEMENT
1.1 The purpose of this Agreement is to facilitate the joint effort
required to submit proposals to Clients in the interest of obtaining
contracts.
1.2 Both parties will jointly respond to Clients Requests for Proposals.
PRIME shall act as prime contractor with MEMBER acting as
subcontractor.
1.3 The parties will work closely together and exchange business and
technical information. For this reason, the parties agree to cooperate
fully with each other towards fulfillment of the purpose set forth in
Section 1.1 of this Agreement.
1.4 The parties will jointly devise a marketing strategy and cooperate
fully in all proposal efforts.
1.5 Nothing contained herein is intended to preclude either party from
independently submitting proposals or from performing work not related
to Teaming Projects.
1.6 In the event PRIME is successful in obtaining a contract for any
Projects, PRIME acting as the prime contractor, will then award to
MEMBER and MEMBER shall accept a mutually agreeable subcontract
covering the work specified in Statement of Work.
1.7 Each party will assist the other, as necessary, and will exert its best
efforts in preparing any proposal.
ARTICLE 2. PRIME PROPOSAL RESPONSIBILITIES
2.1 PRIME shall take the lead and shall have overall responsibility for
preparing any proposal, integrating MEMBER'S data, including submitting
any proposal to a Client in a timely manner, and negotiating a prime
contract. Provided, however, PRIME shall provide MEMBER with a copy of
all bid, proposal and prime contract documents sufficiently in advance
of submission or discussion with Client to allow MEMBER and PRIME to
review and coordinate the preparation of a mutually acceptable response
to such documents.
2.2 PRIME shall bid on Projects in good faith, in a manner responsive to
Client's technical requirements and on the basis of reasonable and
competitive pricing, provided Projects can be bid profitably.
2.3 PRIME will coordinate Client contracts and conferences.
2.4 PRIME will identify MEMBER in the proposal as the proposed member for
the Services/Supplies specified.. All other services/supplies in any
proposal to any Client shall be provided by and the responsibility of
PRIME.
2.5 PRIME will consult with MEMBER regarding MEMBER'S technical input and
pricing; however, in the event of a disagreement, MEMBER shall have
final responsibility for a proposal's content with respect to products,
services and pricing provided by MEMBER. All other services/supplies
necessary for Projects shall be the responsibility of PRIME.
2.6 PRIME shall provide to MEMBER a complete and accurate copy of all final
proposal and contract documents within a reasonable time after
preparation or receipt by PRIME, but in any event, prior to submission
of the final documents to a Client.
2.7 PRIME shall bear its own proposal costs and expenses.
ARTICLE 3. MEMBER PROPOSAL RESPONSIBILITIES
3.1 MEMBER shall support the proposal preparation by submitting its
technical, cost, and management portions of the proposal to PRIME.
3.2 MEMBER shall bid on any Project in good faith, in a manner responsive
to the Client's technical requirements and on the basis of reasonable
and competitive pricing, provided a Project can be bid profitably.
3.3 If requested by PRIME, MEMBER shall furnish qualified personnel at
PRIME'S facility to assist in preparing final proposal documents.
3.4 If necessary, MEMBER shall provide technical, financial and management
data/personnel to assist PRIME in discussions or negotiations with any
Client concerning MEMBER'S proposed work.
3.5 MEMBER shall use reasonable efforts to assist PRIME by such means as
necessary and proper to support any proposal effort including, but not
limited to, all activities prior to contract award.
3.6 MEMBER shall bear its own proposal costs and expenses.
ARTICLE 4. PERFORMANCE
4.1 If PRIME is awarded a contract for a Project and that contract includes
the Services/Supplies peculiar to the MEMBER, PRIME will award to
MEMBER, and MEMBER shall accept from and enter into with PRIME, a
mutually agreeable subcontract for such Services/Supplies required for
a Project at the pricing timely provided by MEMBER for inclusion in a
proposal submitted by PRIME to a Client. The subcontract award is
subject to the Client's approval, if such approval is required. PRIME
shall use all reasonable efforts and means to obtain any such
approvals.
4.2 The subcontract shall be subject to applicable laws, regulations, and
mutual agreement on pricing and other subcontract terms and conditions,
including those provisions of PRIME'S contract with Client which are
necessarily or appropriately passed down in the subcontract. PRIME and
MEMBER shall be, as between each other, solely responsible for their
respective work under the prime contract. The subcontract shall contain
mutually acceptable cross indemnities and releases solely between the
parties with respect to their work under the subcontract.
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4.3 In the event of a disagreement between the parties, concerning MEMBER'S
scope of work, price(s), delivery, or provisions of the subcontract,
which cannot be resolved through good faith negotiations within a
reasonable time, but not to exceed thirty (30) days from the date of
award of the prime contract, either party shall have the right, without
prejudice, or further obligation to the other, to enter into agreements
with others for the subcontract work.
ARTICLE 5. PROPRIETARY/CONFIDENTIAL INFORMATION
5.1 During the term of this Agreement, it may be necessary for either party
to disclose proprietary or confidential information to the other. Such
data must be in writing and identified as proprietary or confidential
information or marked with a notice stating restrictions as to its use.
If information or data is not identified with a restrictive notice, the
receiving party may assume that all information and data is furnished
with unlimited rights of disclosure. With respect to such restricted
information, the following provisions shall apply:
a. Each party agrees not to disclose the other's proprietary or
confidential information to unauthorized parties. Each party
shall take precautions at least as strict as those normally
taken by the party to safeguard its own proprietary or
confidential information.
b. Neither party shall use the other party's proprietary or
confidential information for any purpose other than as is
required for the performance of this Agreement. If any such
information is marked proprietary or confidential or bears a
restrictive notice, such marking or restrictive notice will be
retained on any disclosed information.
c. Proprietary or confidential information or data marked with a
restrictive notice shall be delivered, with a cover letter
listing the enclosures, only to the following individuals
authorized to receive such data:
For MEMBER: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President and GM
For PRIME: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman & Chief Scientist
5.2 All maintenance programs, design, engineering details and other data
pertaining to any discoveries, inventions, patent rights, software,
improvement reports, notes, calculations, data, drawings, estimates,
specifications, manuals, other documents and all computer programs,
codes and computerized materials prepared by or for PRIME are
instruments of PRIME's work ("Instruments") and shall remain PRIME's
property. To the extent specified in the Scope, MEMBER, its employees
and agents ("Permitted Users") shall have a right to make and retain
copies of Instruments except uncompiled code, and to use all
Instruments, provided however, the Instruments shall not be used or
relied upon by any parties other than Permitted Users, and such use
shall be limited to the particular project and location for which the
Instruments were provided. All Instruments are provided for MEMBER's
use only for the purposes disclosed to PRIME, and MEMBER shall not
transfer them to others or use them or permit them to be used for any
extension of the Work or any other project or purpose, without PRIME's
express written consent.
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5.3 A party's obligation regarding the use of proprietary information is
not applicable if such information:
a. was in the public domain at the time of disclosure or later
comes into the public domain, through no breach of this
Agreement; or
b. was known to the receiving party at the time of disclosure, as
demonstrated by written records; or
c. is authorized for disclosure by the written approval of the
disclosing party; or
d. is not lawfully derived by the receiving party from a source
other than the disclosing party without restriction as to the
use or disclosure of the data; or
e. is independently developed by the receiving party without
reference to the confidential information.
5.4 If a subcontract is awarded to MEMBER as a result of a proposal
hereunder, these terms regarding "Proprietary/Confidential Information"
shall remain in full force and effect unless the parties specifically
agree in writing to modify the obligations of the parties with respect
to subsequent use of disclosure of each party's proprietary or
confidential information.
5.5 Upon termination of this Agreement, except by the execution of a
subcontract, all material furnished hereunder disclosing such
proprietary or confidential information, data, designs, and inventions
shall be promptly returned to the owner thereof upon request of the
owner of said material. All material furnished hereunder may be
destroyed by the custodian of such information thirty (30) days
following termination of this Agreement, if the return of such
information was not requested prior to such destruction. The recipient
of any data under this Agreement may retain, in its law, contract or
patent department files, one (1) copy of data transmitted pursuant to
this Agreement solely for purposes of determining compliance with this
Article 5. Nothing in this Agreement conveys any right of license under
any patent or copy right.
5.6 Nothing herein shall prohibit disclosure to attorneys, accountants,
bankers, insurers, sureties, consultants or other advisors to the
parties in connection with the transactions contemplated herein.
Further, nothing herein shall prohibit any disclosure required by any
law or legal process; provided that the disclosing party shall advise,
consult and cooperate with the other party, to the extent permitted by
law, prior to any such required disclosure.
5.7 The obligations of the parties under this Article 5 shall terminate
three (3) years from the date of this Agreement, or completion date of
any resultant contract and related subcontract.
ARTICLE 6. LEGAL EFFECT OF TEAMING AGREEMENT
6.1 Nothing in this Agreement shall be deemed to constitute, create give
effect to, or otherwise recognize a joint venture, partnership, or
formal business entity of any kind, and rights and obligations of the
parties shall be limited to those expressly set forth herein. Nothing
herein shall be construed as providing for the sharing of profits or
losses arising out of the efforts of any or all of the parties except
as provided in any subcontract between the parties as a result of this
Agreement.
6.2 The parties agree that no legal relationship of any kind exists as a
result of this Agreement other than the covenants expressly contained
herein. Neither party shall have authority to create any obligations
for the other except to the extent stated herein. The parties agree
that this Agreement may be made known to the Client.
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ARTICLE 7. TERMINATION OF AGREEMENT
7.1 This Agreement, except for Article 5, shall expire 36 months from the
date hereof unless terminated earlier by one of the following events:
a. Client cancels the procurement or withdraws the Request for
Proposal.
b. Client awards the prime contract to other than PRIME.
c. The parties execute a subcontract in accordance with the
Agreement.
d. Client directs PRIME to have the subcontracted work performed
by other than the Member specified herein or the Client
indicates that the Member is not acceptable to the Client.
e. Client eliminates or substantially reduces the Member's work
contemplated hereby.
f. A party notifies the other of a decision not to submit a
proposal for a Project.
g. Failure of the parties to reach timely mutual agreement on the
terms of a contemplated proposal or subcontract for a Project.
h. The parties dissolve this Agreement by mutual consent.
i. One of the parties petitions for bankruptcy or reorganization
under the bankruptcy laws, or makes an assignment for the
benefit of creditors.
j. Material breach of the provisions of this Agreement or other
valid, compelling reason exists for either of the parties to
terminate the Agreement; e.g., debarment, suspension, or criminal
investigation of the other party; grossly unsatisfactory
performance of the other party, etc. Continuation of this
agreement after a change in legal status due to merger or sale of
the other party requires written approval of the other party,
which shall not be unreasonably withheld.
k. Failure of PRIME to achieve protection under the Safety Act or
Public Law 85-804 or a failure to subsequently pass through rights
of protection to MEMBER under the Safety Act; or MEMBER inability
to acquire an approved application under the Safety Act on its
own.
l. Upon award of a Project by DHS, MEMBER or PRIME shall enter into
good faith negotiations In order to reach a Final Agreement based
upon determination of mutually acceptable terms and conditions for
the parties to undertake the Project and PRIME to provide it's
Scope. The parties shall use good faith efforts to agree upon the
terms of a Final Agreement, provided, however, that the failure of
the parties to enter into a Final Agreement shall not create any
liabilities or obligations on the part of either party.
ARTICLE 8. PUBLICITY
8.1 No publicity or advertising relating to this Agreement shall be
released by the PRIME or MEMBER without the other party's prior written
approval by the parties legal and corporate communications departments.
Nothing herein shall prohibit any disclosure by press release, filing
or otherwise that is required by federal or state securities or other
laws; provided that the disclosing party shall advise, consult and
cooperate with the other party, to the extent permitted by law, prior
to any such required disclosure.
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ARTICLE 9. ASSIGNMENT
9.1 Neither party shall assign, nor in any manner transfer, its interests
or any part thereof, in this Agreement to others, except that either
party may assign its interests to its subsidiaries or other affiliated
companies.
ARTICLE 10. NOTICES
10.1 Any notice or communication hereunder or in any agreement entered into
in connection with the transactions contemplated hereby must be in
writing and given by depositing the same in the United States mail,
addressed to the party to be notified, postage prepaid and registered
or certified with return receipt requested, or by delivering the same
in person or by express carrier. Such notice shall be deemed received
on the date on which it is delivered in person or by express carrier or
on the third business day following the date on which it is so mailed.
For purposes of notice, the addresses of the parties shall be:
a. Siemens Maintenance Services, LLC.
▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
Siemens (Legal)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department -SMS Support
b. Hi-Energy Technologies, Inc..
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn. ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Either party may change its address or the individual addressee by
written notice to the other party in accordance herewith, and any such
change shall take effect immediately upon receipt of such notice.
ARTICLE 11. WAIVER
11.1 The failure of either party to enforce at any time of the provisions of
this Agreement, or to require at any time performance by the other
party of any of the provisions hereof, shall in no way be construed to
be a waiver of such provision, nor in any way affect the validity of
this Agreement or any part thereof, or the right of any of the parties
thereafter to enforce each and every provision hereof.
ARTICLE 12. SCOPE OF AGREEMENT
12.1 The scope of this Agreement is confined solely to activities described
above and the provisions hereof shall have no application or effect
whatsoever to any work being performed by PRIME under any unrelated
subcontract with MEMBER. In this connection, it is understood
specifically that, with no respect to any such work, the terms of each
such subcontract shall govern and shall solely apply.
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ARTICLE 13. ENTIRE AGREEMENT
14.1 This Agreement, including attachments hereto, constitute the entire
understanding and agreement between the parties and supersedes any
prior oral or written agreements with respect to the subject matter
hereof. This Agreement shall not be modified unless agreed to in
writing by both parties.
ARTICLE 14. APPLICABLE LAW
15.1 The validity and performance of this Agreement shall be governed by the
laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first written above.
PRIME: HI-ENERGY TECHNOLOGIES, LLC MEMBER: SIEMENS MAINTENANCE SERVICES, LLC
/s/ /s/
------------------------------------ -----------------------------------------
Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Scientist Title: Vice President and General
Manager
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