EXHIBIT 10.121
CONFORMED COPY
INTEGRATED CONCEPTS AND RESEARCH CORPORATION
TIME and MATERIAL SUBCONTRACT
AGREEMENT AVT. 05.00.0K
This Subcontract is made by
and between Integrated Concepts and Research
Corporation ("ICRC"), a
District of Columbia Corporation, having offices located
at 1033 North Fairfax Street,
Alexandria, Virginia 22314 and HiEnergy
Technologies, Inc.
("Subcontractor), a State of Delaware Corporation, with
executive offices located at
1601-B Alton Parkway, Irvine, California 92606.
Either ICRC or subcontractor
may either singularly or collectively be referred
to hereafter respectively as
"Party" or "Parties".
This Subcontract is for the
service(s) and/or deliverable(s) provided by
Subcontractor in support of
ICRC's Prime Contract Number DAAE07-02-C-L062 (the
"Prime Contract") with the
United States Army Tank - Automotive and Armaments
Command, Warren Michigan
("ICRC Customer" or "TACOM"). The services and/or
deliverables specified in
Section C are being procured by ICRC on a Time and
Materials (T&M) basis as
specified herein.
SECTION A - SCOPE OF
AGREEMENT
A.1 CONTENTS OF
SUBCONTRACT
This Subcontract consists of
the following Sections:
Section A
- Scope of Agreement
Section B
- Subcontract Term, Ceiling Price, Hourly Rates and
Payment
Section C
- Statement of Work
Section D
- General Terms and Conditions
Section E
- Supplemental Terms and Conditions Applicable to
Services
Section F
- Prime Contract Flow Down Provisions
A.2 ORDER OF
PRECEDENCE
In the event of an
inconsistency between any of the provisions of this
Subcontract, the
inconsistency shall be resolved by giving precedence to
the
provisions of the Subcontract
in the following order:
(1) Section A, Scope of
Agreement and Section B, Subcontract Term, Ceiling
Price, Hourly Rates and
Payment
(2) Section D, General Terms
and Conditions, and
Section E, Supplemental Terms
and Conditions Applicable to Services
(3) Section C,
Statement of Work
(4) Section F,
Prime Contract Flow Down Provisions
Page 1 of 25
<PAGE>
A.3 ENTIRE AGREEMENT
This Subcontract in its
entirety, including those documents and/or provisions
incorporated by reference,
constitutes the entire contractual agreement between
the Parties hereto and
supersedes all prior written or oral communications
agreements or understandings
of the Parties with respect to the subject matter
of this Subcontract. All
provisions on Subcontractor's forms shall be deemed
deleted. A waiver or
amendment of any provision may only be made in writing,
signed by the authorized
representatives of both Parties. The failure of either
Party to insist upon strict
performance of any of the terms and conditions in
this Subcontract, or to
exercise any rights or remedies, shall not be construed
as a waiver of its rights to
assert any of the same or to rely on any such terms
or conditions at any time
thereafter. The headings within this Subcontract are
for convenience only and will
not affect the interpretation of this Subcontract.
Any provision or provisions
of this Subcontract prohibited by, or unlawful
under, any applicable law of
any jurisdiction shall, as to such jurisdiction, be
made invalid or
unenforceable, without invalidating the remaining provisions
of
this Subcontract.
AGREED TO BY:
Integrated Concepts &
Research
HiEnergy Technologies, Inc.
Corporation
By: /s/ James W. Lexo
By: /s/ Dr. Bogdan C. Maglich
--------------------------
-------------------------
Name: James W. Lexo
Name: Dr. Bogdan C.
Maglich
Title: President
& CEO
Title: Chairman & CEO
Date: 7-18-05
Date: 7-15-05
--------------------------
------------------------
Page 2 of 25
<PAGE>
SECTION B - SUBCONTRACT TERM,
CEILING PRICE, HOURLY RATES AND PAYMENT
ICRC shall reimburse
Subcontractor as specified in this Section for the
delivery
of the services and/or
deliverable(s) as detailed in Section C, Statement of
Work, subject to the terms
and conditions set forth in this Subcontract.
B.1 SUBCONTRACT TERM
The term of this Subcontract
shall be for the period from the June 28, 2005
through February 28, 2006 or
(1) termination in accordance with the terms of
this Subcontract or (2)
expiration, cancellation or termination of ICRC's Prime
Contract. Time is of the
essence in performance of this Subcontract.
B.2 CEILING PRICE AND FUNDING BY
COST ELEMENT.
B.2.1 Ceiling Price. The ceiling price for this Subcontract
is
$333,688.10
B.2.2 Labor. The Subcontractor shall not expend more than
1,110
hours of direct labor effort
or exceed $66,284.90 in total direct labor dollar
expenditures. Of the before
mentioned direct labor hours, Subcontract shall not
perform more than -0- hours
on-site at TACOM (reference Subcontract Section.E.6
entitled On-Site
Services).
B.2.3 Travel. The Subcontractor shall not expend more than
$2,800
for travel related expenses.
This not to exceed amount includes per diem,
airfare, lodging, other
associated costs, and any applicable indirect burden
rate. No profit or fee is
allowed on travel expenses. All travel shall be in
accordance with the U.S.
Government Joint Travel Regulations (JTR) and / or
Federal Travel Regulations
(FTR).
B.2.4 Material. The Subcontractor shall not expend more
than
$264,603.20 for direct
material or equipment charges and related expenses and
applicable indirect burden
rate. The $264,603.20 direct material charges amount
consists of the below listed
HiEnergy Technologies Commercial Items subtotaling
$240,399.34 and a not to
exceed amount of $24,203.96 for Subcontractor
non-commercial items. Such
non-commercial items consist of the vertex assembly,
test kit (cables, coolant
lines / PC), radiation shielding materials, and
miscellaneous equipment and
accessories. Any Profit applied to materials shall
be in accordance with FAR
52.232-7 Payment under Time and Materials and Labor -
Hour Contracts (Alternate I)
(MAR 2000).
<TABLE>
<CAPTION>
--------------------------------------------------------------
------------- ---------------- ---------------------
HiEnergy
Technologies Commercial Items
Quantity
Unit Price
Total
--------------------------------------------------------------
------------- ---------------- ---------------------
--------------------------------------------------------------
------------- ---------------- ---------------------
<S>
<C>
<C>
<C>
<C>
Neutron Generator
Subsystem
--------------------------------------------------------------
------------- ---------------- ---------------------
Neutron Generator (NEM16D)
1
$122,400
$122,400
--------------------------------------------------------------
------------- ---------------- ---------------------
Data Acquisition
Subsystem
--------------------------------------------------------------
------------- ---------------- ---------------------
Gamma Detector (GMX20P4)
2
$11,294.62
$22,589.24
--------------------------------------------------------------
------------- ---------------- ---------------------
X-Cooler (CFGXCOOLII)
2
$6,360
$12,720
--------------------------------------------------------------
------------- ---------------- ---------------------
Data Interface Module (DIM-NEGGE)
2
$900
$1,800
--------------------------------------------------------------
------------- ---------------- ---------------------
Spectroscopy Module (DSPEC)
2
$9,600
$19,200
--------------------------------------------------------------
------------- ---------------- ---------------------
Host P.C. (EPIA-MII)
1
$1,540
$1,540
--------------------------------------------------------------
------------- ---------------- ---------------------
HiEnergy Firmware &
Analytical Engine Subsystem
--------------------------------------------------------------
------------- ---------------- ---------------------
FPGA Board (ADM-XRC-II)
2
$18,000
$36,000
--------------------------------------------------------------
------------- ---------------- ---------------------
InterrogatorTM Software License
(Single End-User)
1
$16,000
$16,000
--------------------------------------------------------------
------------- ---------------- ---------------------
Radiation Safety
Subsystem
--------------------------------------------------------------
------------- ---------------- ---------------------
Meridian 5085 Neutron Survey Meter
(M5085)
1
$5000
$5,000
--------------------------------------------------------------
------------- ---------------- ---------------------
Micro-1000 Gamma Dosimeter
(MREM02)
1
$750
$750
--------------------------------------------------------------
------------- ---------------- ---------------------
Training Materials
20
$120
$2,400
--------------------------------------------------------------
------------- ---------------- ---------------------
Subtotal
$240,399.24
--------------------------------------------------------------
------------- ---------------- ---------------------
</TABLE>
Page 3 of 25
<PAGE>
B.3 LABOR CATEGORIES AND HOURLY
RATES
The labor category
descriptions in Attachment A are incorporated and made a
part
of this Subcontract. The
following hourly rates applicable to said labor
categories shall remain firm
and fixed for the Subcontract Term:
-------------------------------------------------
------------------
Labor Labor Rate
Categories
-------------------------------------------------
------------------
Program
Manager I
$65
-------------------------------------------------
------------------
Program
Manager II
$75
-------------------------------------------------
------------------
Physicist
(Design Engr V)
$60.10
-------------------------------------------------
------------------
Engineer
III
$62.50
-------------------------------------------------
------------------
Program
Analyst III
$43.27
-------------------------------------------------
------------------
Trainer
(Engr. Tech)
$75
-------------------------------------------------
------------------
Engineering Technician I
$20
-------------------------------------------------
------------------
Engineering Technician III
$36.06
-------------------------------------------------
------------------
Hourly Rates include all
indirect burdens and profit.
B.4 FUNDING
Subcontractor shall notify
ICRC in accordance with the FAR clause entitled
Limitation of Cost whenever
the Subcontractor has reason to believe that the
funds allotted to this
Subcontract are either insufficient or excessive for the
performance
required.
B.5 NOT TO EXCEED
AMOUNTS
If, at any time, the
Subcontractor has reason to believe that any amount of
expense (in one or more
categories of labor, material, and/or travel) which it
expects to incur shall exceed
the amount authorized, the Subcontractor shall
provide such written
notification to the ICRC project manager and contract
representative for
appropriate action. As a part of such notice, the
Subcontract
shall provide a revised
statement of total hours and/or material or travel
expense necessary to complete
this Subcontract. The Subcontractor shall not
exceed any amount authorized
for an expense category without the express written
permission of
ICRC.
B.6 RESERVED
Page 4 of 25
<PAGE>
B.7 SUBMISSION OF INVOICES AND
PAYMENT
B.7.1
Invoices shall be submitted in duplicate as specified below
and
shall be addressed as
follows:
Integrated Concepts & Research Corporation
1115 East Whitcomb Avenue
Madison Heights, Michigan 48071
Attention: Sandy
Ardoin
Reference: Subcontract
No. AVT.05.00.0K
Invoices in duplicate are to
be submitted no more frequently than every two
weeks for labor delivered and
properly allocated costs. Invoices for labor costs
must detail the number of
hours by labor category delivered and applicable
hourly rates. All other costs
shall be clearly annotated as either "Material" or
"Travel". All invoices with
claims for costs other than labor shall include
sufficient detail to allow
verification of proper allocation of charges.
Subcontractor's invoices
shall contain the following information: (1) date of
invoice, (2) ICRC Subcontract
number (3) description of deliverables and/or
services, (4) delivery date
of deliverable(s) / period of performance for
services, (5) quantity
shipped, hours expended, as applicable (6) unit price
(7)
extended total reimbursable
amounts, and (8) the Subcontract payment terms.
Reimbursement of authorized
and accepted services and expenses will be in
accordance with FAR 52.232-7,
Payments under Time and Materials and Labor - Hour
Contracts (Alternate I)
(March 2000).
B.7.2 ICRC
shall pay Subcontractor for services and/or deliverables
upon
receipt of invoice and within
five days of receipt of payment from ICRC
Customer.
B.7.3
Subcontractor shall be responsible for the payment of all
taxes
pertaining to the services
and or deliverables provided under this Subcontract,
and shall be solely
responsible for payment to all 3rd parties with whom it
deals in providing such
services and/or deliverables to ICRC. Upon request, ICRC
will provide its Tax Exempt
Certification Number.
B.7.4 ICRC
reserves the right to demand an offset against amounts
payable
to Subcontractor under this
Subcontract for any claim or charge ICRC may have
against Subcontractor with
regard to billing activity for services and/or
deliverables. ICRC shall
provide written notice to Subcontractor in the event
there is a billing dispute
which requires an offset for a claim or charge by
ICRC against amounts payable
to Subcontractor. Subcontractor has the right to
dispute the nature and/or
amount of any offset under this clause, which dispute
shall be resolved pursuant to
Clause D.3.
Page 5 of 25
<PAGE>
SECTION C - STATEMENT OF
WORK
C.1 SCOPE
C.1.1 The
Subcontractor shall perform the following work in
accordance
with ICRC RFQ #ST-CBF-009
dated January 25, 2005.
C.1.2 The
Subcontractor shall procure, configure and calibrate the
Neutron
Generator Sub-System, HPGe
Detectors w/DAQ Sub-System, Monitoring Sub-System
hardware, and FPGA hardware
in accordance with the proprietary engineering and
design of its CarBomb
FinderTM. The hardware will be acquired from trusted,
best-of-class vendors with
whom the Subcontractor has a proven relationship.
Additionally, these vendors
will have provided the software libraries necessary
to allow the Subcontractor to
build where necessary any customized control
software and application
interfaces.
C.1.3 The
Subcontractor will install and configure its proprietary
Control
Host Sub-System software
which controls (with a minimum of input from the
operator) the Neutron
Generator, HPGe Detectors w/DAQ, Monitoring, and Data
Analysis Module Sub-Systems.
This hardware interfaces with drivers provided by
the Subcontractor's vendors,
and the software includes data management and
integration as per the data
collected from the sub-systems.
C.1.4 The
Subcontractor's in-house engineering and technical teams
will
install, calibrate and
maintain its proprietary firmware and any translation of
its InterrogatorTM software
and proprietary algorithms for the Data Analysis
Module Sub-System, and
provide modifications where necessary for the required
application.
C.1.5 The
Subcontractor will install and configure its proprietary
User
Interface Sub-System, and
provide assistance in the communication of
Subcontractor's proprietary
server to the CBF-EV platform's client and any user
interface and data systems
produced by ICRC..
C.1.6 The
Subcontractor will design and manufacture a finished
housing
assembly for the CarBomb
FinderTM head unit.
C.1.7 The
Subcontractor will assemble the CarBomb FinderTM head unit
and
configure all components
previously mentioned and will perform all complete
system testing at its
facilities in Irvine, California, prior to its final
installation on the
CBF-EV.
C.1.8 The
Subcontractor will perform final testing on the
completed
vehicle at its facility in
Irvine, California. After completion of testing the
Subcontractor shall perform
an onsite engineering review for final inspection
and acceptance before
shipment of the vehicle to the end user in Washington,
D.C. or an alternative
location determined by ICRC. ICRC shall assume
responsibility for all
vehicle shipment and handling costs to the Subcontractor
facility and from the
Subcontractor facility to the end user.
C.2 DELIVERABLES
C.2.1 The
Subcontractor shall provide a design of the CarBomb
FinderTM
head unit and housing
assembly to ICRC no later than 30 days of subcontract
execution. In addition, the
Subcontractor shall provide a product specification
with deployment scenarios to
ICRC no later than 30 days of Subcontract
execution, which will be used
in support of the design and development of the
deployment platform by
ICRC.
Page 6 of 25
<PAGE>
C.2.2 The
Subcontractor will deliver a test kit to allow for testing
of
the sensor outputs without
actually using the sensor to produce data. This test
kit will simulate the
hardware functions and related data communications. The
test kit shall also include a
computer hardware specification including any
connections or ports that are
necessary to interface with their system. This
test kit shall be delivered
to the ICRC Program Manager no later than thirty
(30) days of Subcontract
execution.
C.2.3 The
Subcontractor shall deliver a replica CarBomb FinderTM head
unit
with all components,
including cooling lines and electrical connections, to
Extreme CAD/CAM of Clinton
Township, Michigan within ninety (90) days of
Subcontract execution, which
is required to allow for the testing of the final
arm design including movement
/ positioning of the sensor, the collision
avoidance system, and the
motion detection system. The replica will have mass
substitutes for the Neutron
Generator and HPGe Detectors. At the option of the
Subcontractor, the replica
CarBomb FinderTM head unit will be returned to
Subcontractor following
either of the completion of the testing by Extreme
CAD/CAM, or no later than the
scheduled delivery of the final CarBomb FinderTM
head unit. The Subcontractor
shall also provide onsite support during the
installation and testing of
the replica CarBomb FinderTM head unit with the
CBF-EV.
C.2.4 The
Subcontractor will deliver one (1) fully functional
CarBomb
FinderTM head unit, with all
associated components, electronics, firmware and
software license, to ICRC no
later than February 10, 2006. Additionally, the
Subcontractor shall provide
training for the operation of the CarBomb FinderTM
to ICRC personnel and end
user personnel during the commissioning of the CBF-EV
and deliver to ICRC the
requisite training material and operating manuals prior
to the start of training
classes/activities.
C.3 NOTICE OF LATE
DELIVERY
The Subcontractor shall
immediately notify the ICRC project manager by telephone
if dates by which work must
be performed or deliverables must be delivered will
not be met, followed promptly
by written notice pursuant to Clause D.9.
C.4 PACKAGING
All data and/or items
deliverable under this Subcontract shall be packaged and
packed in accordance with
good commercial practice. Packaging and packing shall
be adequate to ensure arrival
at destination without damage or loss. Any costs
associated with the packaging
and packing of the deliverables is considered
shipping and handling costs
and the responsibility of ICRC.
C.5 MAINTENANCE AND
SUPPORT
Both Parties acknowledge that
the Subcontractor has no obligation to provide
maintenance and support for
the CarBomb FinderTM other than that required for
performance by Subcontractor
under the warranties provided herein. ICRC and/or
the ICRC Customer reserve an
option to procure from Subcontractor an extended
maintenance program at an
additional cost to provide for timely service and
repairs for all hardware and
software products provided by Subcontractor. The
maintenance program would
provide 24-hrs-a-day, 7-days-a-week support and
on-site response to a service
call within the U.S. within 12 hours.
SECTION D - GENERAL TERMS AND
CONDITIONS
D.1
DEFINITIONS
For purposes of this
Subcontract, the following terms shall have the meanings
described below:
Page 7 of 25
<PAGE>
Unless otherwise specified in
this Subcontract, references to "days" shall refer
to calendar days.
"Work Product" means the
deliverables and documentation, including working
papers, developed under this
Subcontract.
D.2
INSPECTION AND
ACCEPTANCE
D.2.1 All Work Product
furnished under this Subcontract, and as described
in Clause C.2, shall be
subject to inspection and testing by ICRC and/or the
ICRC Customer during the
period of performance under this Subcontract.
Inspection by ICRC of the
Work Product shall be performed by ICRC and/or the
ICRC Customer at the
Subcontractor's facility in Irvine, CA prior to
shipment.
Subcontractor shall provide
all reasonable facilities and assistance for the
safety and convenience of
ICRC's inspectors for any test made on Subcontractor's
premises at no additional
charge to ICRC or the ICRC Customer.
D.2.2 The
criterion for acceptance of the CarBomb FinderTM head unit
(and
all associated components,
electronics and firmware/software) is the successful
operation of the CarBomb
FinderTM head unit (and all associated components,
electronics and
firmware/software) using the Subcontractor's standard
test
procedures and diagnostic
test programs applicable to the items involved. All
acceptance tests will be
conducted by Subcontractor personnel prior to delivery,
on a date agreeable to ICRC
and/or the ICRC Customer. If neither ICRC or the
ICRC Customer, or their
respective representatives, attend, or request in
writing a postponement of the
performance of the scheduled tests, acceptance
will be deemed to have been
made upon successful completion of the acceptance
tests which will be evidenced
by the issuance and delivery of a Test Certificate
to ICRC.
D.2.3 Work
Product supplied will be substantially in accordance with
the
specifications provided by
the Subcontractor to ICRC, subject to reasonable
variations. Subcontractor
shall not be responsible for performance figures given
in any source other than the
specifications provided to ICRC. Subcontractor
reserves the right to supply
Work Product in fulfillment of its obligations
hereunder, the design and/or
constructions of which has been modified, provided
that the general performance
of the Work Product is not adversely affected.
D.2.4 If
Work Product does not conform to the specifications,
drawings,
and/or other data provided to
ICRC, and the general performance of the Work
Product has been adversely
affected due to said non-conformance, or there is a
failure by Subcontractor to
comply with any warranty provided, ICRC reserves the
right to reject the affected
Work Product, whereupon ICRC will promptly deliver
to Subcontractor a notice of
rejection in accordance with Clause D.9. Said
notice shall include the
reason for the rejection and detail any variances in
performance recognized by
ICRC and/or ICRC Customer. If the Subcontractor fails
to respond to the notice
within eight (8) days or does not provide an acceptable
plan to ICRC to remedy the
claim within eight (8) days, ICRC may terminate this
Subcontract for
default.
D.2.5
Payment for any Work Product shall not be deemed acceptance
thereof.
D.3
DISPUTES
D.3.1
Disputes with the Government. If a decision is issued by
the
Contracting Officer under the
Prime Contract "Disputes" Clause which relates to
this Subcontract, ICRC shall
notify Subcontractor of said decision. Such a
decision shall be binding
unless Subcontractor requests ICRC to appeal such
decision on its behalf. If
requested, ICRC will provide reasonable cooperation
and assistance, and deliver
to Subcontractor all information related to the
Dispute with Government
available to ICRC. ICRC is not obligated to pursue an
appeal on the behalf of
Subcontractor. Any final judgment in such an appeal
shall be binding upon
Subcontractor. If any such appeal is taken or brought by
ICRC, Subcontractor shall be
afforded a complete right of participation in the
appeal to the extent
Subcontractor's interests may be affected. If as a
result
of any decision or judgment
which is binding upon Subcontractor and directly
related to the performance of
Subcontractor under this Subcontract, ICRC is
unable to obtain
reimbursement from the Government under the Prime Contract
for,
or is required to refund a
credit to the Government of any amount with respect
to any item of cost or fee
for which ICRC has reimbursed Subcontractor,
Page 8 of 25
<PAGE>
Subcontractor shall upon
demand, promptly repay such amount to ICRC. To the
extent requested by ICRC,
Subcontractor shall prosecute for ICRC any appeal or
suit taken or brought at
Subcontractor's request and, in such event, ICRC shall
assist Subcontractor in every
reasonable manner. All costs and expenses incurred
by Subcontractor and ICRC in
prosecuting any appeal or suit taken or brought at
Subcontractor's request shall
be paid by Subcontractor. In the event ICRC
refuses to pursue and appeal
on Subcontractor's behalf then Subcontractor may
bring suit against ICRC in
accordance with the Disputes Between The Parties
provision of this Subcontract
in order to seek resolution and the findings of
the Government on the matter
shall not be binding.
D.3.2 For
any claims to be submitted under this Disputes with the
Government provision in
excess of $50,000, the Subcontractor shall certify to
ICRC, as to Subcontractor's
portion of the claim, that: (a) the claim is made in
good faith, (b) the
supporting data are accurate to the best of
Subcontractor's
knowledge and belief, and (c)
the amount requested accurately reflects the
Subcontract adjustment for
which Subcontractor believes the Government liable.
D.3.3
Disputes between the Parties. The Parties will attempt in good
faith
to resolve, by negotiation or
mediation, any controversy or claim, not covered
by the Disputes with the
Government provision above regarding the rights and
obligations under this
Subcontract or its breach. Any dispute not disposed of
within ninety (90) days from
the date of notification, regardless of the causes
of action alleged, the claim
will be resolved by arbitration in the Commonwealth
of Virginia, before a single
arbitrator who is knowledgeable in diagnostic
equipment and technologies.
Such arbitration will be conducted pursuant to the
then current Commercial
Arbitration Rules of the American Arbitration
Association. The Arbitrator
shall be bound to follow the applicable subcontract
provisions and the laws of
the Commonwealth of Virginia and the federal
substantive and procedural
law of arbitration. The arbitrator's award will be
final and binding, The
arbitrator shall not have the power to award punitive or
exemplary damages. Any claim
or action must be brought within two years after
the cause of
action
D.3.4
Continuation of Performance Pending Dispute. Pending any
decision,
appeal or judgment referred
to in this section or the settlement of any dispute
arising under this
Subcontract, Subcontractor and ICRC shall proceed
diligently
with their performance of
this Subcontract.
D.3.5 The
rights and obligations herein this Clause D.3 and the
contained
provisions shall survive
expiration, termination, or final payment under this
Subcontract.
D.4 TERMINATION
D.4.1
Termination for Convenience. In the event the ICRC
Customer
terminates the
Subcontractor's portion of work under this Subcontract, ICRC
may
terminate this Subcontract in
whole or in part at any time for its convenience,
upon the delivery by ICRC to
Subcontractor a written notification of the date of
termination and a copy of an
official notice of termination from the ICRC
Customer to ICRC respective
to the Subcontractor's portion of work. On the date
of termination, Subcontractor
shall discontinue performance of the services and
shall wholly comply with
ICRCs instructions regarding such termination related
to the requirements within
this Subcontract. ICRC shall pay Subcontractor for
deliverables delivered and
services rendered through the effective date of
termination.
D.4.2
Termination for Default.
(a) Either Party may terminate this Subcontract for
default
upon written notice in the
event a Party: (a) materially breaches any term,
condition or provision of
this Subcontract and does not cure or provide an
acceptable plan to cure such
failure within a period of eight (8) days after
receipt of notice from the
offended Party specifying such material breach; or
(b) becomes the subject of
any proceedings under state or federal law for the
relief of debtors or
otherwise becomes insolvent, or bankrupt, or makes
assignments for the benefit
of creditors. A default shall not be deemed to have
occurred until the end of any
applicable cure period.
Page 9 of 25
<PAGE>
D.4.3
Additional Termination Provisions. The rights set forth above
shall
be in addition to any other
rights of termination provided elsewhere in this
Subcontract.
D.4.4
Obligations Upon Termination. Any property including
documentation
the Subcontractor received
from ICRC without obligation of payment will be
immediately returned to ICRC
by no later than the effective date of termination
or expiration in the same
condition that such property was received, less normal
wear and tear and in the same
or similar packing materials as received by
Subcontractor.
D.5 NONDISCLOSURE
In entering this Subcontract,
it may be necessary for either Party to provide
proprietary information to
the other. It is agreed that any disclosure of
information shall be made
only in accordance with the following provisions:
D.5.1.
"Proprietary Information" is defined as documented
information
originated by or peculiarly
within the knowledge of a disclosing Party or its
suppliers which is not
generally available to the others without restriction by
said disclosing Party or its
suppliers. However, information shall not be
considered to be Proprietary
Information:
(a) unless
it is received from the other Party in writing and is
clearly
identified as proprietary
information or marked with a notice stating
restrictions as to its use or
disclosure, and made to authorized
representative(s) of the
receiving Party; or, if orally disclosed, reduced to
writing within thirty (30)
days after such disclosure, and identified as
specified above;
or
(b) if it
becomes lawfully known to the receiving Party from a
source
other than the disclosing
Party at the time of disclosure, without breach of
this Subcontract;
or
(c) if it
becomes publicly known through no wrongful act of the
receiving
Party, or is independently
developed by the receiving Party without breach of
this Subcontract;
or
(d) if it
was is disclosed pursuant to the requirement of a
governmental
agency or court;
or
(e) if it
relates to an item, component or process developed
exclusively
with government funds to
which the United States Government has claimed, and
both Parties have agreed to
provide, "unlimited rights".
D.5.2.
With regard to Proprietary Information disclosed by either
Party,
the receiving Party agrees to
take all steps necessary to:
(a) to
protect such information to the extent normally used in
safeguarding its own
proprietary information but in no event less than a
standard of reasonable care;
and
(b) to
protect and prevent disclosure to and/or use by third parties
of
any proprietary information
of the other party; and
(c) to hold all
said proprietary information in confidence and not to,
directly or indirectly, copy,
publish, summarize or disclose to any person or
entity such information
without the other party's prior written consent; and
Page 10 of 25
<PAGE>
(d) until
seven (7) years after the expiration or termination of
this
Subcontract, unless otherwise
mutually agreed to in writing by the Contract
Representatives or their
appointed replacements, whichever is earlier, (i) not
to use such information for
purposes other than evaluation or in connection with
the Subcontract; and (ii) not
to disclose such information to persons other than
its directors, officers or
employees (or agents or consultants who have signed
confidentiality agreements
containing terms and conditions materially the same
as those contained in this
nondisclosure agreement) who have a demonstrated
"need to know".
D.5.3. A
receiving Party shall not be liable for disclosure of
such
information pursuant to
Judicial action or Governmental regulations or
requirements, provided that
the receiving Party notifies the disclosing Party of
the need for such disclosure
promptly after such need becomes known, and prior
to any disclosure of such
information, which shall in all cases be only to the
extent the disclosing Party
is legally compelled.
D.5.4.
Exchange of information between the Parties is contemplated
from
the Effective Date of the
Subcontract through its expiration or termination; all
other provisions herein
relating to holding in confidence all proprietary and/or
confidential information
received from the other Party shall remain in force and
effect for the period as
specified under subparagraph D.5.2.(d) above.
D.5.5. No
license to the other Party, under any patents, is granted
by
conveying proprietary
information to that Party and none of such information
which may be transmitted or
exchanged by the respective Parties shall constitute
any representation, warranty,
assurance, guarantee of inducement by either Party
to the other with respect to
the infringement of patents or other rights of
others.
D.6 CONTRACT
COMMUNICATIONS
D.6.1 The
authorized contractual and technical representatives with
regard
to communications between the
Parties on any issue related to the terms and
conditions of the
Subcontract, including the Statement of Work, are
designated
as follows:
ICRC Representatives are:
Contract Representative
Sandy Ardoin
Technical Representative
Hans Steiniger
Subcontractor Representatives are:
Contract Representative
Roger Spillmann
Technical Representative
Dr. Kevin McKinny
D.6.2 At
any time during this Subcontract, the Parties may designate
a
program manager, project
coordinator, or other technical representatives with
responsibility for day-to-day
clarifications and guidance. However, the effort
set forth in the Statement of
Work shall be performed under the technical
direction of ICRC Technical
Representative. When, in Subcontractor's opinion,
such technical direction
constitutes a change to the Subcontract, the ICRC
Contract Representative shall
be notified immediately for authorization of such
change. Until such
authorization is granted by the ICRC Contract
Representative,
and accepted by Subcontractor
Contract Representative, Subcontractor shall
perform in accordance with
the Subcontract as specified.
D.6.3 No
verbal or written request, notice, authorization, direction
or
order sent by one Party and
received by the other, and no action taken by the
Parties which by their nature
effect a change in the Subcontract's terms and
conditions, including the
Statement of Work, shall be binding, or serve as the
basis for a change in price
or any other provision of this Subcontract, unless
issued (or confirmed) in
writing between the Contract Representatives in the
manners indicated in the
"Notices" section of this Subcontract.
Page 11 of
25
<PAGE>
D.6.4 Each
Party shall immediately notify the Contract
Representatives
whenever a verbal or written
communication which will affect the price,
schedule, or other terms or
conditions of this Subcontract has been issued or
received from a
representative of ICRC or Subcontractor other than the
Contract
Representatives.
D.6.5 ICRC
shall be responsible for all liaisons and communications
with
ICRC's ICRC Customer as well
as ICRC's other subcontractors for the term of this
Subcontract. The
Subcontractor shall not communicate with ICRC's ICRC
Customer
or ICRC's other
subcontractors regarding this Subcontract except with the
prior
consent of ICRC.
D.7 ICRC FURNISHED
PROPERTY
Any property furnished by
ICRC to Subcontractor for its use under this
Subcontract shall remain the
property of ICRC or its ICRC Customer, and shall be
used by Subcontractor solely
for the purposes of performing under the terms of
this Subcontract. Such
property shall be held at the Subcontractor's risk, and
shall be kept insured by the
Subcontractor at the Subcontractor's expense while
in Subcontractor's custody
and control in an amount equal to the replacement
cost thereof, with loss
payable to ICRC. When so instructed by ICRC, the
Subcontractor shall deliver
any property owned or subject to use by ICRC to ICRC
(or to any other person ICRC
may designate) in good condition, ordinary wear and
tear excepted, in the same or
similar packing materials as received by
Subcontractor, and such
property shall be subject to repossession or removal by
ICRC upon ICRC's
instructions.
D.8 RESERVED
D.9 NOTICES
All notices (including
requests, consents or waivers) made under this
Subcontract will be in
writing and delivered by facsimile, electronic mail or
other electronic means, or by
prepaid means providing proof of delivery. Notices
are deemed duly given or sent
when delivered with verified receipt, and will be
sent to the
following:
To Subcontractor:
HiEnergy
Technologies, Inc.
1601-B Alton Parkway
Irvine, California 92606
Attention: Roger
Spillmann
Phone:
949.757.0855
Facsimile:
949.757.1477
E-mail:
rspillmann@hienergyinc.com
To ICRC:
Integrated Concepts & Research Corporation
1115 East Whitcomb Avenue
Madison Heights, Michigan 48071
Attention:
Sandy Ardoin
Phone No:
248.823.4273
Facsimile:
248.585.7533
E-mail:
sardoin@icrc-detroit.net
Page 12 of 25
<PAGE>
With a copy to: Integrated
Concepts and Research Corporation
1033 North Fairfax St., Suite 400
Alexandria, VA 22314
Attenti
