EXHIBIT 10(rr)
CONTRACT BETWEEN
TRW SYSTEMS INTEGRATION GROUP and THERMAL MEDICAL IMAGING, INC.
STRATEGIC SYSTEMS DIVISION ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
POST OFFICE BOX ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
CONTRACT NUMBER: TRW-96-001 TERMS: NET 30 DAYS
COST PLUS FEE CONTRACT
This Contract is entered into June 19, 1996 between TRW Inc., an Ohio
corporation, operating through its Systems Integration Group, Strategic Systems
Division, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter also
called "TRW" or "Seller") and Thermal Medical Imaging, Inc. a Nevada company
(also called "TMI" or "Buyer").
WITNESSETH THAT:
In consideration of the mutual promises, covenants, and agreements herein set
forth, the Parties agree that the Seller shall furnish and deliver to the Buyer
all the goods, and perform all the services set forth for the consideration
stated herein. The rights and obligations of the Parties to this Contract shall
be subject to and governed by this Contract and other documents or
Specifications attached hereto or referenced herein. This Contract supersedes
any and all prior agreements of the parties, whether written or oral, concerning
the subject matter hereof.
This Contract shall not be varied in its terms or conditions by any oral
agreement or representation, or otherwise than by an instrument in writing of
even or subsequent date thereto, executed by both Seller and Buyer.
The article titles used herein are for convenience only and shall in no way be
construed as part of this Contract or as an indication of the meaning of the
particular section.
INDEX OF ARTICLES
ARTICLE
NO. ARTICLE TITLE PAGE
--- ------------- ----
I Definitions and Priority 2
II Limits of Agreement 3
III Scope of Work 3
IV Performance and Delivery Schedule 4
V Inspection and Acceptance 4
VI Estimated Cost and Fixed Fee * 4
VII Consideration and Payment 5
VIII Invoices and Remittance 5
IX Payment Terms 5 X
Packaging and Delivery 6
XI Warranty 6
XII Limitation of Liability 7
XIII Indemnification 7
XIV Excused Performance 8
XV Insolvency of Buyer 8
XVI Default 8
XVII Assignment 9
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INDEX OF ARTICLES (Continued)
ARTICLE
NO. ARTICLE TITLE PAGE
--- ------------- ----
XVIII Notices 9
XIX Governing Law - Arbitration 10
XX Taxes 10
XXI Contract Management 10
XXII Notice of Delay 11
XXIII Reports 11
XXIV Intellectual Property Rights & New Technology & Data Rights * 11
XXV Patents Infringement 12
XXVI Changes 13
XXVII Modification and Waiver 14
XXVIII Severability 14
XXIX Counterparts 14
XXX Remedies 14
XXXI Proprietary Information and ▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇
XXXII System Integration Rights * 15
XXXIII Buyer Furnished Software and Property 16
*- These portions have been omitted under a request for confidential treatment
ARTICLE I - DEFINITIONS AND PRIORITY
A. The following words and phrases shall have the meanings set forth below:
1. Contract: This Contract between TRW and TMI includes Appendix A -
Statement of Work, attached hereto and made a part hereof, as may be modified or
supplemented from time to time by agreement by the parties, any TMI Work
Priorities ("TWP"), and similar schedules, work plans, or documents if approved
by both parties from time to time for performing the projects.
2. Estimated Cost: The amount within which it is agreed that the
Statement of Work or any TWP is likely to be accomplished.
3. Fixed Fee: A compensation method which might be approved by the
parties from time to time for a portion of the Statement of Work by which Seller
would be paid an agreed dollar amount for full satisfaction regardless of the
Cost incurred, or Seller may be reimbursed for any Costs incurred allocable to
the appropriate job and paid as agreed amount in addition to Costs for full
satisfaction, for any specific statement of work or TWP for which the parties
agree in advance to be compensated on this basis.
4. Delivery Dates: The dates agreed in the Statement of Work for the
services to be performed at the Site.
5. Services: The services described in the Statement of Work or any TWP
to be provided by TRW.
6. Site: The facility or other location identified in the Statement of
Work as the destination to which transportation is to be arranged for
deliverable items, and at which services are to be performed.
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7. Costs: The actual cost incurred by Seller to perform the work under
this Contract, including the cost of equipment provided and expenses incurred
plus the same burden rates for such costs as TRW charges on government
contracts.
8. Fee: The amount calculated as a percentage of Cost shall be referred
to as the "Fee." The compensation Seller is expected to be paid for the work
under this Contract is Cost reimbursement plus the Fee, although a Fixed Fee may
be subsequently agreed for some work to be subsequently identified according to
a statement of work or TWP.
B. In case of any ambiguous inconsistencies between this Contract and the
Statement of Work or subsequent TWP's or similar work orders, the text of this
Contract shall prevail.
C. This Contract definitizes and applies to work performed pursuant to the
Advanced Authorization to Proceed contained in TMI telefax dated March 26, 1996.
ARTICLE II - LIMITS OF AGREEMENT
The terms and conditions set forth herein constitute the complete and
exclusive statement of all of the terms of the agreement between TRW and TMI
with respect to this Contract, unless different or additional terms and
conditions are hereafter agreed in writing and made a part hereof by Contract
amendment. All prior representations and agreements of the parties are merged
herein and no agent, employee or representative of Seller has the authority to
bind Seller to any other affirmation, representation, promise or warranty
concerning the software or services furnished by Seller, and such are not
enforceable by Buyer unless contained herein. This Contract shall not be
varied, supplemented, qualified, or interpreted by any prior course of dealing
between the parties or by any usage of trade.
ARTICLE III - SCOPE OF WORK
Seller, as an independent Contractor and not as an agent of Buyer, shall,
in conformance with the terms and conditions more particularly set forth herein,
provide the necessary personnel, equipment, and materials and do all things
necessary or incidental to furnish and deliver to the Buyer all requirements set
forth in Appendix A - STATEMENT OF WORK, dated 20 May 1996, as revised or
amended from time to time.
ARTICLE IV - PERFORMANCE AND DELIVERY SCHEDULE
The period of performance shall be from the effective date hereof until
approximate 10,000 cases have been collected and analyzed (estimated to be eight
(8) to fourteen (14) months), excluding the clinical implementation phase
referenced in the Statement of Work. The Seller shall provide the ARTICLE XXIV.
(A) materials, perform the services, and complete the data collection and
analyses required by ARTICLE III- SCOPE OF WORK within the period of
performance. Seller shall request clarifications or instructions from Buyer if
the Statement of Work or instructions from Buyer are not clear or are ambiguous
as the project progresses.
ARTICLE V - INSPECTION AND ACCEPTANCE
A. Final inspection and acceptance of services shall be made at the sites
designated by Buyer. All services covered by this Contract will be subject to
inspection and test by Buyer to the extent practicable at reasonable times and
places prior to acceptance. Any such inspection and test shall be performed in
such manner as to not delay or otherwise interfere with Seller's performance
hereunder.
B. Buyer shall promptly inspect and test the software or services within 5
days of being notified by Seller of their being tendered for test or inspection,
and shall, within ten (10) days after such test or inspection, give written
notice to Seller of any claim that the goods or services do not conform with the
terms of this Contract. If Buyer fails to inspect
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and test the goods or services called for above, Buyer will be held to have
accepted the goods or services with all defects that inspection and testing
would have revealed, subject to Seller's obligations under ARTICLE XI, and to
have waived all rights Buyer may have had to revoke acceptance after said ten
(10) day period. Notwithstanding the foregoing, Buyer may notify Seller of a
reasonable delay and toll the inspection period.
ARTICLE VI - ESTIMATED COST AND FIXED FEE
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
ARTICLE VII - CONSIDERATION AND PAYMENT
Seller shall submit invoices monthly identifying work performed, Costs
incurred and the applicable Fee, consisting of the total payable. At the end of
Seller's work required by the Contract, a final invoice containing all unpaid
Cost incurred and uninvoiced Fee, if any, shall be submitted and paid.
ARTICLE VIII - INVOICES AND REMITTANCE
A. Invoices for payments hereunder shall be submitted to the following
address:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇, President
Thermal Medical Imaging, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Remittance shall be made by check to:
TRW Inc.
Accounts Receivable
Lock Box File No. 41818
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ARTICLE IX - PAYMENT TERMS
Payment terms are net thirty (30) days after date of Seller's invoice. The
first invoices, however, will not be submitted before June 30, 1996. Seller
preserves the right at any time to suspend credit or to change credit terms
provided herein, when the financial condition of Buyer reasonably so warrants.
In such case, in addition to any other remedies herein or by law provided, cash
payment or satisfactory security from Buyer may be required by Seller before
shipment, or the due date of payment by Buyer under any Contract or order with
Seller may be accelerated by Seller. Failure to pay invoices at maturity date
makes all subsequent invoices immediately due and payable, irrespective of
terms, and Seller may terminate work and/or withhold all subsequent deliveries
until the full account is settled.
ARTICLE X - PACKAGING AND DELIVERY
Packaging and packing of all items for delivery shall be in accordance with
good commercial practice and adequate to assure safe arrival at destination.
The delivery point of all items to be delivered by Seller hereunder shall be F.
O. B. Origin.
ARTICLE XI - WARRANTY
A. Software
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For six (6) months commencing upon the date software installation is
accepted by Buyer at the designated site, TRW warrants that the software
modified or developed by TRW, excluding defects existing at the time of delivery
to TRW in the coding of the software originating from any third party, shall
substantially conform to professional quality, standard industry practices, the
TRW Software Guidelines, and the purpose and requirements set forth in Appendix
A - STATEMENT OF WORK and any implementing TWP or other document referencing the
software description. If any of the TRW modified or developed software fails to
comply with the warranty set forth in this paragraph, TRW shall make a
reasonable effort to correct the program errors either (a) without increase to
the Fixed Fee or Cost of the Contract or (b) without increase to the Fee but
with reimbursement of Costs, if Buyer's instructions were ambiguous and unclear
and Seller's action was reasonable. Any corrected software will be warranted
for the remainder of the original warranty period or thirty (30) days, whichever
is longer. Notwithstanding any other provision of this ARTICLE XI, TRW does not
warrant that software provided hereunder is free of all errors or omissions.
Further, TRW does not warrant that the functions contained in the delivered
software will meet Licensee's requirements or will operate in combinations other
than as specified by TRW, or that the operation of the software will be
uninterrupted or error free or that all program defects can be corrected.
Seller will transfer to Buyer the benefit of any third party warranties to the
extent allowable by the third parties.
B. Services
1. All services performed by TRW will be of professional quality and
conform to standard industry practices and be in accordance with the Statement
of Work and any TWP or other document specifying the particular purpose of the
services approved by the parties. Any services which are actually defective
will be re-performed with reasonable promptness, after written notification is
received, and if said notice is made promptly after discovery of such defect,
and in no event later than six (6) months from the date of acceptance thereof.
In such event, to perform any such re-work or transportation caused thereby,
either (a) no additional Fee or duplicated Cost shall be allowed, or (b) only
Costs shall be reimbursed if Buyer's instructions were ambiguous and Seller
reasonably provided the services. If services are to be performed pursuant to a
software warranty, the software warranty standard and conditions apply. Buyer
shall notify Seller in writing of any defect, furnish relevant information with
respect thereto.
2. In instances when re-performance of a defective service is
impractical, and at TRW's sole discretion, an equitable adjustment of the earned
Fee and Costs of the affected item may be offered in lieu of re-performing the
service.
C. ANY OTHER PROVISIONS OF THIS CONTRACT TO THE CONTRARY NOTWITHSTANDING, THIS
WARRANTY, EXCEPT AS TO TITLE, IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE,
WHETHER ARISING BY LAW, CUSTOM, CONDUCT OR USAGE OF TRADE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
(EXCEPT AS MAY BE ATTRIBUTABLE TO ARTICLES XIII, XXIV, XXV, OR XXXI), OR
PUNITIVE DAMAGES.
ARTICLE XII - LIMITATION OF LIABILITY
Neither party in any event shall be liable for indirect, incidental,
special or consequential (except as may be attributable to ARTICLES XIII, XXIV,
XXV, OR XXXI) or punitive damages, including such liability for improper
disclosure or misuse by others (who are not its agents) of any data gathered or
processed by the systems delivered under this Contract. Any special or
consequential damages permitted under this Contract may not exceed One Million
Dollars. Seller shall not be liable for incorrect or inappropriate responses or
incorrect diagnosis resulting from the data gathering or processing performed by
the systems delivered under this contract. Seller's liability for damages to
Buyer on any claim, including negligence, for any loss or damage resulting from
the performance or breach thereof, or the design, manufacture, sale, delivery,
resale, installation, technical direction of installation, inspection, repair,
operation or use of any software, data, goods or services covered by or
furnished under this Contract, shall in no case exceed the estimated value cited
in ARTICLE VI B.
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ARTICLE XIII - INDEMNIFICATION
To the extent that Seller's or Buyer's agents, employees or subcontractors
enter upon premises occupied by or under the control of the other party in the
course of the performance of this Contract, the parties shall take all necessary
precautions to prevent the occurrence of any injury (including death) to any
persons, or of any damage to any property arising out of acts or omissions of
such agents, employees or subcontractors, and except to the extent that any such
injury or damage is due solely and directly to the other party's gross
negligence or willful misconduct, shall indemnify the other party, its officers,
employees and agents, against any loss, claims, damages, liability, expense
(including reasonable attorney fees) and cause of action whatsoever arising out
of any act or omission of the party, its agents, or employees, and both parties
shall maintain such Public Liability, Property Damage and Employee's Liability
and Compensation Insurance as will protect the other party from any of said
risks and from any claims under any applicable Workmen's Compensation and
Occupation Disease Acts. Furthermore, each party agrees to hold harmless and
indemnify the other from any third-party claim against one party arising from
the other party's negligence or intentional misconduct.
ARTICLE XIV - EXCUSED PERFORMANCE
In addition to any excuse provided by applicable law, Seller and Buyer
shall be excused from liability for non-delivery, delay in delivery, or delivery
of non conforming goods or services arising from any events beyond its control,
whether or not the events were foreseeable by either party when entering into
the Contract, specifically including, but not limited to, war, riot, strikes,
lockouts, labor disturbances, resignation or death of any of key personnel,
energy or material shortages, fire, flood, earthquake or other natural
catastrophe, Federal, State or Local government requirement or proscription,
breach of contract or other failure of a subcontractor to perform, or
impossibility, including practical impossibility, to perform the services called
for herein or to develop the software without going beyond the state of the art.
Unless expressly provided in writing herein to the contrary, Seller and Buyer
shall not be deemed to have assumed the risk of any of the above circumstances.
In such event, Seller shall be entitled to compensation on an equitable basis
for any benefit received by Buyer in retaining non conforming software or
utilizing non conforming services.
ARTICLE XV - INSOLVENCY OF BUYER
If Buyer takes any action to make Seller believe Buyer may become bankrupt
or insolvent, ceases business, or to pay bills during the term of this Contract,
Seller may forthwith terminate this Contract upon written notice thereof to
Buyer. Such termination shall not prejudice Seller's rights to any amounts then
due under this Contract or effect any other rights Seller may have under
applicable provisions of controlling law.
ARTICLE XVI - DEFAULT
A. An Event of Default on the part of either party shall exist if:
1. Such party fails to pay the other party any amount required to be paid
hereunder when due and payable;
2. Such party fails to perform any other material obligation required to
be performed by it under any provisions of this Contract, or fails to initiate
corrective action within thirty (30) days after receiving notice from the other
party that such performance has become due.
B. Subject to other provisions hereof which expressly limit the remedies
available hereunder, if an Event of Default, as defined in paragraph A above,
exists on the part of either party, then the other party may continue
performance and seek a resolution of any disputed performance according to
Article XIX, or the other party may terminate this Contract upon giving written
notice of termination and pursue any other remedies available at law or in
equity.
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C. Failure by either party to insist upon strict performance of any provision
of this Contract by the other party shall not be deemed to be a waiver by such
party of its rights or remedies, or a waiver by it of any subsequent default by
the other party in the performance of or compliance with any of the terms of
this Contract.
ARTICLE XVII - ASSIGNMENT
A. Neither party shall, without the consent in writing of the other party
assign or transfer this Contract or the benefits or obligations thereof or any
part thereof to any other person other than a subsidiary wholly owned by the
party, provided that this shall not affect any right of TRW to assign, either
absolutely or by way of charge, any moneys due or to become due to it or which
may become payable to it under this Contract.
B. No assignment or transfer of any right or duty hereunder by either party
shall constitute a novation or otherwise release or relieve such party of its
obligations hereunder.
C. The provisions of this Agreement shall be binding upon and inure to the
benefits of Seller and Buyer and their respective successors and assigns. In
the event either party foresees a successor situation developing, the other
party shall be notified in writing. This provision shall not be deemed to
expand or otherwise affect the limitation on assignment and transfers set forth
above and no party is intended to or shall have any right or interest under this
Contract, except, as provided herein.
ARTICLE XVIII- NOTICES
Any notices required to be given hereunder shall be given in writing at the
address of each party herein set forth or to such other address as either party
may substitute by written notice to the other.
If to Buyer:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇, President
Thermal Medical Imaging, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Seller:
TRW Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: ▇. ▇. ▇▇▇▇▇▇▇, SBCA
ARTICLE XIX - GOVERNING LAW - ARBITRATION
All questions concerning the validity and operation of this Agreement and
the performance of the obligations imposed upon the parties hereunder shall be
governed by the laws of the State of California, United States of America.
Any dispute between the parties arising out of or related to this Contract
(or any Statement of Work or TWP or other document executed related to this
Contract) shall be resolved by binding arbitration held in Ogden, Utah, in
accordance with the rules and procedures of the American Arbitration Association
("AAA"). Either party may deliver to the other a written dispute notice setting
forth a description of the issue(s). Appropriate representatives of both
parties will negotiate in good faith within ten (10) days to resolve the
dispute. If the parties are unable to resolve the dispute within ten days,
either party may notify the AAA and the other party of a statement of claim to
initiate arbitration. The purpose of arbitration is to promptly resolve all
disputes, including any cost or fee dispute or resolution
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of any equitable adjustments or determination of reasonable charges which may
arise during the course of continued performance, because the parties have
agreed to identify work to be performed as the term of the contract progresses
and that all costs and charges shall be reasonable. The AAA shall be the
appointing and administrative authority applying its supplemental and procedural
rules unless the parties agree on other procedures. If the parties cannot
mutually select an arbitrator reasonably acceptable to both parties with five
(5) days of such notice, AAA shall identify three independent candidates for
selection as the sole arbitrator, allowing each party an opportunity to strike
one. The arbitrator shall adhere to deadlines for a prompt resolution.
ARTICLE XX - TAXES
Any direct taxes (including stamp, and turnover taxes but excluding income
taxes), duties, fees, charges, or assessments of any nature levied by any
governmental authority in connection with the work of this Contract, whether
levied against Buyer or TRW, shall be for Buyer's account and shall be paid
directly by Buyer to the governmental authority concerned.
ARTICLE XXI - CONTRACT MANAGEMENT
A. Each party's Contract Manager for this Contract shall be designated in
writing. Either party may, by written notice to the other, change such Contract
Manager at any time. At the commencement of this Contract, ▇▇▇▇ ▇▇▇▇▇ is the
Contract Manager for TMI, ▇.▇. ▇▇▇▇▇▇▇ is the Contract Manager for TRW, and ▇▇▇
▇▇▇▇▇ is the Project Manager for TRW.
B. No request, notice, authorization, direction or order received by the
Seller shall be binding upon Seller, or serve as a basis for adjusting the
price, or other provision of the Contract unless issued or confirmed in writing
by the Buyer's named Contract Manager. Buyer's Contract Manager shall codify
into the Contract out of scope or over and above activities required by the
Buyer's Program or Technical Representatives. The Seller shall immediately
notify, in writing, the Buyers Contract Manager whenever a change request has
been received from a representative of Buyer other than the Contract Manager
which would affect the terms and conditions, estimated cost, fixed fee,
Statement of Work or Schedules of this Contract.
C. Only TRW's designated Contract Manager or a more senior contracting
individual within the Company is authorized to contractually obligate TRW.
TRW's Project Manager may coordinate and agree to TWP's which prioritize work
required by the statement of work.
ARTICLE XXII - NOTICE OF DELAY
Whenever any actual or potential event is delaying or threatening to delay
delivery of the software or performance of the services under this Contract,
Seller shall give expeditious notice thereof.
ARTICLE XXIII - REPORTS
The Seller shall furnish reports of cost incurred and the progress of
performance monthly. Cost reports shall be submitted within seven (7) days
after the close of TRW's accounting month. Progress reports shall be submitted
as of the end of each calendar month so as to reach Buyer by the 7th day of the
following month.
ARTICLE XXIV - INTELLECTUAL PROPERTY RIGHTS AND NEW TECHNOLOGY AND DATA RIGHTS
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
ARTICLE XXV- PATENT INFRINGEMENT
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A. TRW shall indemnify Buyer against all actions, claims, demands, costs,
legal fees, charges, and expenses arising from or incurred by reason of any
infringement or alleged infringement of United States letters patent, design, or
copyright, by the use of any Intellectual Property supplied by TRW but such
indemnity shall not cover any use of the products other than for the purpose
indicated by or reasonably to be inferred from this Contract or to any use which
constitute an infringement due to the use of any such products or software in
association or combination with any other products not supplied by TRW under
such combination is designed by services of TRW.
B. In the event of any claim being made or action brought against Buyer
arising out of the matters referred to in this Article, TRW shall be promptly
notified thereof and may at its own expense conduct all negotiations for the
settlement of the same, and any litigation that may arise therefrom. Buyer
shall not, unless and until TRW shall have failed to take over the conduct of
the negotiations or litigation, make any admission which might be prejudicial
thereto. The conduct by TRW of such negotiations or litigation shall be
conditional upon TRW having first given to Buyer such reasonable security as
shall from time to time be required by Buyer to cover the amount ascertained or
agreed or estimated, as the case may be, of any compensation, damages, expenses,
and costs for which Buyer may become liable. Buyer shall, at the request of
TRW, afford all available assistance for the purpose of contesting any such
claim or action, and shall be repaid all reasonable expenses incurred in so
doing.
C. The foregoing indemnity shall not apply to software products thereof made
to the specification or design of Buyer, or to any claim of patent infringement
which is based upon the combination of any part of the products with other
equipment, except equipment acquired from TRW.
D. The foregoing states the entire liability of TRW with respect to
infringement of patents by the products or any part thereof or by operation
thereof.
ARTICLE XXVI - CHANGES
A. Any changes to this Contract after the effective date hereof which relate
to (i) the deletion of work, (ii) adding additional services, (iii) changing or
modifying work, or (iv) making other changes which do not materially alter the
scope of this Contract shall be made in accordance with the procedures set forth
in this ARTICLE XXVI.
B. Either party hereto may, from time to time, and at any time during the term
hereof request a change, as defined in this Contract. (The party requesting the
change is hereinafter referred to as the ''Requesting Party.'') Requests for
changes or deletion shall be in writing, and shall be addressed and delivered to
the Notified Party. Such writing shall be identified as a "Contract Change
Request" (CCR), shall carry a sequential number for ease of tracking, shall set
forth in detail the nature of the change requested, and shall identify the item,
service, or TWP to be changed.
C. When TRW is the Requesting Party, TRW shall submit a proposal for equitable
adjustment to the Contract Estimated Cost (and Fixed Fee, if any), schedule, or
other affected Contract provision. When the Requesting Party is TMI, a proposal
for equitable adjustment to the Contract will be submitted promptly after
receipt of copies of the CCR. The parties shall, as necessary, negotiate the
change and establish any equitable adjustment to the Contract.
D. If the parties decide to implement a change request, a Contract Change
Notice ("CCN") shall be prepared, which shall describe the change, delineate the
Estimated Cost, Fixed Fee if any, schedule, and other impacts of the change.
Execution of a CCN by both parties, or a revised TWP, shall constitute a
modification hereof and shall be binding on both parties hereto. TRW shall not
proceed on any change until a CCN or revised TWP has been issued.
E. Substitutions of products which are purchased items not manufactured by TRW
may be made by TRW without the consent of Buyer if such substitutes are of like
function and quality and of lower delivered cost.
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XXVII - MODIFICATION AND WAIVER
No cancellation, modification, amendment, deletion, addition, or other
change in the Contract or any provision hereof, or waiver of any right or remedy
herein provided, shall be effective for any purpose unless specifically set
forth in a writing signed by the party to be bound thereby. No waiver of any
right or remedy in respect of any occurrence or event on one occasion shall be
deemed a waiver of such right or remedy in respect of such occurrence or event
on any other occasion.
XXVIII - SEVERABILITY
Any provision hereof prohibited by or unlawful or unenforceable under any
applicable law of any jurisdiction shall as to such jurisdiction be ineffective
without affecting any other provision of the Contract. To the full extent,
however, that the provisions of such applicable law may be waived, they are
hereby waived, to the end that the Contract be deemed to be a valid and binding
agreement enforceable in accordance with its terms.
XXIX - COUNTERPARTS
This Contract has been executed in several counterparts, each of which
shall be deemed to be an original, and all such counterparts together shall
constitute but one and the same instrument.
XXX - REMEDIES
Unless otherwise expressly provided herein, the rights and remedies
hereunder are in addition to, and not in limitation of, other rights and
remedies under the Agreement, at law or in equity, and exercise of one right or
remedy shall not be deemed a waiver of any other right or remedy.
XXXI - PROPRIETARY INFORMATION AND NON-DISCLOSURE
A. During the term of this Contract, TRW and TMI, to the extent of each
party's contractual and lawful right to do so, shall exchange such proprietary
technical and other information as is reasonably required for each to perform
its obligations hereunder. The disclosing party without consent shall be liable
for special or consequential damages. TRW and TMI each agree to keep in
confidence and prevent the disclosure to any person(s) outside their respective
organizations or any person(s) within their organizations not having a need to
know, all information received from the other which is in writing and designated
by appropriate stamp or legend to be of a proprietary nature and to use such
information only in connection with their obligations under this Agreement;
provided, however, that neither party shall be liable for actual special or
consequential damages for disclosure or use of such data if the same is:
1. In the public domain at the time of disclosure, or is subsequently
made available to the general public without restriction by the disclosing
party;
2. Known to the receiving party at the time of disclosure without
restrictions on its use or independently developed by the receiving party, and
there is adequate documentation to demonstrate either condition;
3. Used or disclosed inadvertently despite the exercise of the same
degree of care that each party takes to preserve or safeguard its own
proprietary information;
4. Used or disclosed with the prior written approval of the
non-disclosing party;
5. Disclosed without restriction to the receiving party from a source
other than the disclosing party;
6. Used or disclosed after a period of three (3) years after the date of
receipt.
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B. No sheet or page of any written material will be so labeled which is not,
in good faith, believed to contain Proprietary information. A recipient of
information hereunder will have no obligation with respect to any portion of any
written material which is not so labeled, or any information received orally
unless a written summary of such oral communication, specifically identifying
the item s of Proprietary information, is furnished to the recipient within
fifteen (15) days.
C. If any portion of a party's Proprietary information falls within any one of
the above exceptions, the remainder shall continue to be subject to the
foregoing prohibitions and restrictions.
D. The entire program and business plan for conducting confirmation studies at
▇▇▇▇▇▇ University Hospital, and the results from such work, are Proprietary
Information to TMI. Any public statement of such results or progress must be
approved in advance by TMI. Likewise, the contractual relationship between TMI
or CTI and ▇▇▇▇▇ Scientific, Inc. ("BSI"), and the methods, inventions, ideas,
intellectual property, and technology of BSI shall be considered as Proprietary
information and technology or property of TMI. The results of thermal imaging
cases from BSI or from ▇▇▇▇▇ ▇▇▇▇▇ Hospital in Montreal, Canada, and the results
form use of CTI-TM- thermal imaging in China are Proprietary Information.
XXXII - SYSTEM INTEGRATION RIGHTS
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
XXXIII - BUYER FURNISHED FACILITIES, SOFTWARE AND PROPERTY
A. Title to all facilities, software and property furnished to Seller by Buyer
(or Buyer's customer or Contractor) or paid for by Buyer shall remain with Buyer
(or Buyer's customer). Seller shall not alter or use such property for any
purpose other than that specified by Buyer without the prior written consent of
Buyer. Seller shall keep adequate records, which shall be made available to
Buyer upon request, and shall store protect, preserve, repair, and maintain such
property in accordance with sound industrial practice. In the event that
Buyer's property becomes lost or damaged through negligence or willful
misconduct by Seller, its employees, agents, or subcontractors, while in
Seller's possession, Seller agrees to replace (if lost or irreparable) or repair
such property, without increase to the Cost or Fixed Fee, at Seller's option.
At the completion of delivery of the goods and services ordered by Buyer in this
Contract for which Buyer's software or property were required, or the
termination of this Contract, Seller shall request disposition instructions for
all such Buyer's software and property, and for all source codes and tools and
documentation required to fully use the New Technologies, or the remainder
thereof. Seller agrees to make such software and property available to Buyer at
Buyer's request, in the manner requested by Buyer.
B. If the aforementioned Buyer-owned facilities, software or property are
increased or decreased, or do not remain available during the performance of
this Contract, or if any change is made in the terms and conditions under which
they are made available to the Seller, an equitable adjustment as may be
appropriate shall be made in the terms of this Contract.
C. TMI agrees to provide TRW within 30 days with the items identified in
Appendix B.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Contract to be
effective as of the day and year first above written.
TRW Inc. Thermal Medical Imaging, Inc.
Systems Integration Group
/s/ ▇.▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------- -------------------
▇. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Manager of Contracting and Pricing President
Strategic Systems Division
Date: 6/19/96 Date: 06-21-96
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APPENDIX A
STATEMENT OF WORK
[REDACTED DUE TO CONFIDENTIALITY: THE MATERIAL IN THIS ARTICLE HAS
BEEN OMITTED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT. ACCORDINGLY,
THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
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