DEVELOPMENT AGREEMENT FOR
THE BOEING ENGINEERING DATA
RETRIEVAL SYSTEM
(CEDRS) PROGRAM.
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TABLE OF CONTENTS
1. DEFINITIONS 3
2. TERMS AND CONDITIONS 4
3. DELIVERY 5
4. ACCEPTANCE 5
5. SUPPLIER'S EMPLOYEES AND
SUBCONTRACTORS 6
6. WORK PRODUCT 7
7. PRICES AND PAYMENT 8
8. CHANGES 11
9. WARRANTIES 11
10. TAXES 12
11. GENERAL PERFORMANCE 12
12. PROPRIETARY INFORMATION 12
13. INFRINGEMENT 14
14. PREMISES INDEMNIFICATION 14
15. INSURANCE 15
16. TERMINATION FOR CONVENIENCE 17
17. CANCELLATION FOR DEFAULT 17
18. DELAYS 18
19. COMPLIANCE 18
20. RECORDS AND AUDIT 19
21. PROTECTION OF PROPERTY 19
22. NOTICES 19
23. RELATIONSHIP OF THE PARTIES AND
THEIR 19
EMPLOYEES
24. DISASTER RECOVERY 20
25. GENERAL PROVISIONS 20
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Effective January 11, 2000, The Boeing Company ("Boeing"), a
Delaware corporation, acting through its division, Boeing Shared
Services Group, and TMS, Inc.("Supplier"), an Oklahoma corporation,
agree to the following terms and conditions.
RECITALS
A. Boeing and Supplier desire to establish now the terms and
conditions under which they will do business in the future in
order to expedite the
placement and fulfillment of orders.
B. Boeing and Supplier have specifically negotiated these terms and
conditions with the express intent that they apply to each order
placed by Boeing with Supplier during the term hereof.
NOW, in consideration of the recitals, mutual promises, and
covenants contained herein, the parties do agree as follows:
AGREEMENT
1. DEFINITIONS
As used herein the following terms, when capitalized, shall have the
following meanings:
"Agreement" means these terms and conditions, each and every
Purchase Contract, all Exhibits now or hereafter made part of
this Agreement, which are incorporated by this reference, and
any other requirements or provisions attached to, incorporated
into, or otherwise specified in these terms and conditions or
any Purchase Contract.
"Authorized Boeing Representative" means the representative of
Boeing
Shared Services Group-Puget Sound, Supplier Management &
Procurement or any other Boeing Materiel department who is
authorized by Boeing to act on behalf of Boeing in business
transactions with Supplier.
"Documentation" means user manuals for any portion of the Work
Product,
all addenda, corrections, and new editions of these materials,
and any other materials, in any form, that Supplier
customarily provides to endusers of any portion of the Work
Product. Documentation includes, without limitation, all of
the published specifications for any pre-existing works
included in any the Work Product, as of the date the
applicable Purchase Contract takes effect.
"Employee" means any employee or agent of Supplier or Subcontractor
who
performs Work.
"Goods" means Work, Work Product, Statement of Work and any
other related items or services.
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"Purchase Contract" means Boeing's written order or change
order to Supplier, which references this Agreement, for the
performance of services or the delivery of goods, or both, and
all specifications, schedules, technical descriptions,
statements of work, and other requirements included in or
incorporated into such order.
"Subcontractor" means any subcontractor, at any tier, or any
other third party which performs any of Supplier's obligations
under this Agreement. "Warranty Period" means the ninety (90)
days after acceptance of the Goods.
"Work" means services performed or to be performed by Supplier
under any Purchase Contract.
"Work Product" means all tangible items delivered to Boeing
pursuant to this Agreement, including but not limited to
computer software and its documentation, and any other
Documentation specifically prepared in the course of
performing Work, not including the copyright thereto.
2. TERMS AND CONDITIONS
a. Terms and Conditions. These terms and conditions shall
take effect
on the effective date written above and expire on the
fifth anniversary of the effective date, unless earlier
terminated in accordance with the terms hereof or by the
mutual written consent of the parties. These terms and
conditions shall be incorporated into every Purchase
Contract described in the paragraph entitled "Orders"
automatically and without further formalities, as of the
date the Purchase Contract takes effect. These terms
and conditions shall apply to all Goods ordered by
Boeing during the term of this Agreement.
b. Orders. Goods may be ordered on the terms and
conditions of this
Agreement solely by an Authorized Boeing Representative
on a Purchase Contract. Each Purchase Contract will be
effective upon written acknowledgement by Supplier or
commencement of performance by Supplier. Such Purchase
Contracts shall specify:
1) the Work and/or Work Product ordered;
2) the price; and delivery schedule.
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c. Objection. Except for the terms set forth in the
paragraph entitled
"Orders," neither party shall be bound by, and each
specifically objects to, any term or condition which is
different from or in addition to the provisions of these
terms and conditions, unless such different or
additional term or condition is accompanied by an
express reference to the inconsistent term in these
terms and conditions, or expressly waives the
prohibition of different or additional terms in this
paragraph, and is in writing signed by the party to be
obligated. Such a modification, however, will apply
only to the transaction covered by the Purchase
Contract, and has no effect whatsoever on the terms of
this Agreement or the order of precedence applicable to
any other transactions under this Agreement.
d. Order of Precedence. In the event of any inconsistency
within or
relating to this Agreement, the following order of
precedence will apply:
1) Each Purchase Contract.
2) These terms and conditions.
3) The specifications, technical descriptions,
statements of
work, schedules, drawings, and designs prepared by
or at the direction of Boeing.
4) The specifications, technical descriptions,
statements of
work, schedules, drawings, and designs, other than
those described in subparagraph (3), prepared by
Supplier, including, without limitation, those
contained in Supplier's proposal and any
correspondence or statements made by Supplier
leading up to contract award.
3. DELIVERY
Shipment and delivery under this Agreement shall be strictly
in accordance with the quantities and schedules specified in
the Purchase Contract and with the other requirements of this
Agreement. Unless the Purchase Contract specifies a different
delivery point, all deliveries under this Agreement shall be
F.O.B. destination.
4. ACCEPTANCE
a. Acceptance. Acceptance of the Goods shall occur when
the Goods meet
all of the requirements of this Agreement and the
Statement of Work "final acceptance" form has been
mutually signed by Boeing and the Supplier.
b. Conditions. Acceptance of the Goods is subject to
inspection and
acceptance testing by Boeing in accordance with this
Agreement.
c. Acts Not Constituting Acceptance. Neither trial use nor
testing of
the Goods, incremental or final payment, nor passage of
title, constitutes acceptance or prejudices Boeing's
right to reject acceptance of all or any portion of the
Goods.
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5. SUPPLIER'S EMPLOYEES AND SUBCONTRACTORS
a. Qualified Employees. Supplier shall perform and shall
cause its
Subcontractors to perform all of the Work using
qualified Employees satisfactory to Boeing. No
Employee unsatisfactory to Boeing will be assigned to
perform any of the Work. From time-to-time, Boeing may
request and Supplier shall provide resumes, references,
or other information reflecting the qualifications of
any Employee, either before or after he or she is
assigned to perform Work.
b. Replacements. If any Employee is or becomes
unsatisfactory to
Boeing, Supplier or its Subcontractor, as the case may
be, shall provide a qualified replacement satisfactory
to Boeing in a timely fashion. If, despite its best
efforts to do so, Supplier or its Subcontractor is
unable to provide a satisfactory replacement, Boeing
may cancel the Purchase Contract(s) involved, in whole
or in part, without any termination payment or other
liability to Supplier, but only to the extent affected
by the loss of Work which would have been performed by
the unsatisfactory Employee.
c. Supplier's Responsibilities. All Employees shall at
all times be
and remain employees of Supplier or its Subcontractors,
not employees of Boeing. Supplier shall pay its
Employees, and shall ensure that each of its
Subcontractors pays its Employees, all wages, salaries,
overtime, and other amounts due. Supplier shall be
responsible for, and shall ensure that each of its
Subcontractors shall be responsible for, all reports,
payments, and other obligations respecting their
respective Employees, including without limitation,
those related to social security, income tax
withholding, unemployment compensation, workers'
compensation, overtime, and employee benefit plans.
d. Expenses. Subject to reimbursement, if previously
authorized,
under the paragraph entitled "Travel Expenses" of the
clause entitled "Prices and Payment," Supplier shall be
responsible for all expenses of all Employees,
including, without limitation, travel to and from the
place where the Work is to be performed,
living expenses, and local transportation.
e. Subcontractors. Performance of the Work is a personal
obligation
of Supplier, and may not be subcontracted or otherwise
delegated without prior written consent of Boeing.
Specification of a Subcontractor and that portion of
the Work to be performed by it in the applicable
Purchase Contract shall constitute such consent.
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6. WORK PRODUCT
The Work to be performed under this Agreement shall be Boeing
funded development for enhancements of Suppliers existing
Commercial-Off-TheShelf (COTS) Licensed Software, thereby
creating a new Version Release of Suppliers COTS Licensed
Software which Supplier has the right to market without
restriction from Boeing.
Supplier shall have the right, at it's sole discretion, to
further enhance or change the methods incorporated into the
Work Product, modify existing features in the COTS Licensed
Software, or add additional features to the COTS Licensed
Software after final delivery to Boeing provided, Supplier
insures backward compatibility with the Work Product will be
maintained in any future COTS release of the Licensed
Software, so long as Boeing is participating in the associated
maintenance/support program defined in the Boeing/TMSSequoia
Software License Agreement.
Boeing may, at its discretion, adopt any new enhancements or
use any new methods provided in the future versions of the
COTS Licensed Software and relieve Supplier of some or all of
the backward compatibility requirements. Such relief must be
provided by Boeing in writing per Clause 22 Notices of this
Agreement.
The specific "mime type" Work Product created by Supplier, is
unique for Boeing. Although Boeing will not own this unique
"mime type" software code, Supplier shall maintain the
required Boeing "mime type" Work Product in all future
versions of the Suppliers COTS Licensed Software and will
insure backward compatibility.
a. License to Use/Ownership of Copy. The Work Product is
and will be
the sole and exclusive property of Supplier; along with,
all patents, copyrights, trade secrets, and know-how
subsisting in the Work Product. Supplier hereby grants
and shall grant to Boeing a perpetual, irrevocable,
worldwide, nonexclusive license under all such patents,
copyrights, trade secrets, and know-how provided Boeing
has tendered the applicable license fee to:) use the Work
Product on any computing equipment;
2) change the form of any Documentation
3) incorporate the Work Product into aerospace
products and
services for delivery to Boeing customers, and
sublicense Boeing customers to use the Work Product
in conjunction with such products and services; and
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4) sublicense agents, contractors, and subcontractors
to exercise
rights 1) through 4) of this paragraph in
connection with work they may do for the benefit of
Boeing
Boeing shall have the right to sublicense and re-
distribute the Work Product only as part of
Suppliers COTS Software License and only as granted
in The Boeing Company/TMSSequoia Corporate Software
Licenses Agreement.
b. Knowledge, Skill, and Experience. Supplier retains the
right to use
the knowledge, skill, and experience gained by Supplier
in the course of performing the Work.
c. Boeing Proprietary Information. Supplier shall preserve
all Boeing
Proprietary Information (as hereinafter defined in the
clause entitled "Proprietary Information") included in
the Work Product in confidence, and shall not use,
duplicate, or disclose any Boeing Proprietary Information
for any purpose other than the performance of the Work or
any other contract with Boeing, without the prior express
written permission of Boeing.
7. PRICES AND PAYMENT
a. Price. Any price specified in the Purchase Contract for the purchase
of Goods is a firm, fixed price.
b. Payment. Supplier shall issue a separate invoice for each delivery.
The invoice, however, shall not be issued before performance.
Payment will be mailed thirty (30) days after receipt of a correct
invoice. If the Goods have not been accepted by the close of this
period, however, payment will be made promptly after acceptance of the
Goods. For purposes of prompt payment discounts, if any, the payment
due date will be computed from acceptance or receipt of a correct
invoice, whichever is later, to the date Boeing's check is mailed or
otherwise tendered. Supplier will prominently display notice of any
applicable prompt payment discounts on the invoice. Unless taxes or
other applicable charges are itemized, any discount may be taken on
the full amount of the invoice.
c. Travel Reimbursement
(1) Reimbursement for Expenses. Provided and to the extent
Supplier is required to perform all or any portion of the Work
outside of Supplier's local area, and provided that the
Purchase Contract expressly authorizes per diem payments,
Boeing shall reimburse Supplier for all necessary travel
expenses associated with such Work as set forth below.
(2) Payment. Reimbursable travel expenses shall be invoiced and
paid in accordance with this clause. Per diem and all
reasonable and necessary travel-related expenses shall be shown
as separate line items on all invoices.
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(a) Receipts Required. Except for per diem expenses, all
expenses in excess of $25.00 for which reimbursement is
requested must be supported by and submitted with
original receipts or clear, readable copies of receipts.
Travel itineraries are not acceptable receipts for
airfare.
(b) Travel Expense Reports. All travel expenses for which
Supplier requests reimbursement shall be summarized on a
travel expense report. The report shall contain a
summary of the Purchase Contract statement of work task
pursuant to which the travel expenses were incurred. A
separate travel expense report shall be provided for
each employee of Supplier.
(3) Expenses Reimbursed. Supplier shall be reimbursed for
the following travel related expenses. No markup shall
be applied by Supplier to these expenses for indirect
cost recoupment or for profit.
(a) Living Expenses. Boeing shall pay Supplier a per diem
amount of $34.00 per day for living expenses, including
meals and tips, laundry, baggage handling, and other
items of a personal nature. Per diem shall be prorated
on the day of departure from, and return to, the
permanent location of Supplier's employee. The
permanent location is the home office of the employee,
or the place of assignment of the employee when
transferred to that location. The calendar day
(midnight to midnight) is the unit used for computing
per diem, based on four consecutive sixhour periods or
fractions thereof, as follows:
Time Period Departure Return
12:01 am - 6:00 am 100% 25%
6:01 am - 12:00 75% 50%
noon
12:01 pm - 6:00 pm 50% 75%
6:01 pm - 12:00 25% 100%
midnight
(b) Lodging. Boeing shall pay Supplier for reasonable
lodging expenses incurred and taxes related thereto, up
to a maximum of $100.00 per room per night. Supplier
shall request commercial or guaranteed rates for room
accommodations.
(c) Air fare. Air travel shall be by coach class. Airfare
expenses shall not be in excess of the lowest customary
standard coach, or equivalent, airfare offered during
normal business hours.
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(d) Mileage Allowance. Supplier will be reimbursed for
taxicab fare, or will be paid a mileage allowance of $.28
per mile for use of a personally-owned vehicle, between
the residence of Supplier's employee and the airport from
and to which the employee departs and returns while on
authorized travel. In addition, in the event of use of a
personally-owned vehicle, Boeing shall pay Supplier for
airport parking fees incurred by Supplier's employees
while on such travel.
(e) Rental Cars. Boeing shall pay Supplier for costs
associated with renting a car during the period the Work is
being performed. Supplier's employees supporting Boeing
contracts are entitled to use Boeing's corporate rental car
rates; reimbursable costs shall thus be limited to the
Boeing corporate rate for compact cars, or the actual
rental amount paid for the car, whichever is lower. Rental
insurance expenses will not be reimbursed.
(f) Multiple Customer. In the event Supplier is performing
work for multiple customers at the travel site, Supplier
shall pro-rate travel-related expenses between Boeing and
such other customers in accordance with the hours worked
for each, and Boeing shall only reimburse Supplier for its
proportionate share of such expenses.
(g) Other Expenses. Boeing shall pay Supplier for other
travel-related expenses incurred including vehicle tolls,
parking fees, Work-related telephone charges, and
incidental expenses of a non-personal nature.
(4) Expenses Not Reimbursed. Supplier shall not be reimbursed
for travel related expenses which are not deemed to be
necessary, including (1) charges for "pay per view" cable
television, damage to property, entertainment, fines and
penalties, insurance costs for personal possessions or
property, personal trip insurance, medical expenses,
membership dues, hotel room movies, professional fees, or
expenses associated with recreational or social activities;
(2) per diem expenses for periods of vacation, or voluntary
leave without pay or unauthorized absences (including
weekends and holidays falling within such periods), sick
leave, bereavement, jury duty, or Supplier's employee
training not specifically authorized by Boeing; (3) expenses
for return trips home (flybacks) during the period the Work
is being performed; (4) expenses for items of a personal
nature; and (5) expenses for alcoholic beverages.
(5) Submittal of Expenses. Supplier shall have up to three (3)
months after the incurrence of a travel related expense to
submit a claim to Boeing for reimbursement.
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(6) Unallowable/Unsupportable Expenses. Boeing shall have the
right to reduce payment for unsupported costs, and for
questionable costs associated with prior billings that
have been paid but are subsequently determined to be
unallowable.
8. CHANGES
a. Directed Changes. The Authorized Boeing Representative may from time
to time direct changes, in writing, within the general scope of any
Purchase Contract in one or more of the following: (i) technical
requirements and descriptions, specifications, statements of work,
drawings, or designs; (ii) shipment or packing methods; (iii) place of
delivery, inspection, or acceptance; (iv) reasonable adjustments in
quantities or delivery schedules or both; and (v) amount of any Boeing
furnished property. Supplier shall comply immediately with such
direction and avoid unnecessary costs related thereto.
b. Price and Schedule Adjustments. If any change under the paragraph
entitled "Directed Changes" of this clause causes an increase or
decrease in the cost or the time required for performance of the
Purchase Contract, an equitable adjustment in the prices and schedules
of the Purchase Contract shall be made to reflect such increase or
decrease, and the Purchase Contract shall be modified in writing
accordingly. Unless otherwise agreed in writing, any claims by
Supplier for adjustment must be delivered to Boeing in writing within
thirty (30) days after Supplier's receipt of such direction. Pursuant
to the clause entitled "Records and Audit," Supplier shall make
available for Boeing's examination relevant books and records to verify
Supplier's claim for adjustment. Failure of Boeing and Supplier to
agree upon any adjustment shall not excuse Supplier from performing in
accordance with such direction.
c. Other Changes. If Supplier determines that the conduct of any of
Boeing's employees constitutes a change under this clause, Supplier
shall notify Boeing immediately in writing as to the nature of such
conduct and its effect upon Supplier's performance. Pending direction
from the Authorized Boeing Representative, Supplier shall take no
action to implement any such change or deviation.
d. Binding Effect. No change to any Purchase Contract will be effective
or binding upon Boeing unless authorized in writing by the Authorized
Boeing Representative.
9. WARRANTIES
Supplier warrants the following to Boeing during the Warranty Period:
a. Media Defects. The media on which the Work Product is provided to
Boeing shall be free of defects in material and workmanship.
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b. Performance. Any computer software provided as part of the Work
Product shall perform in accordance with its Documentation.
c. Date Functions. The Licensed Software must correctly process all
dates past December 31, 1999, and all date related information and
processes. Any program created or developed that Boeing will own or
maintain or that will interface with Boeing owned or maintained
software shall contain a four character year data element whenever
defining, using, and/or storing calendar dates beyond December 31,
1999, and shall process those dates correctly.
d. Conformance to Requirements. The Work Product shall conform in all
respects to the Documentation and to all of the requirements of this
Agreement.
e. Legal Sufficiency. Supplier and each of its Subcontractors have
taken all necessary steps, including, without limitation, obtaining
written agreements from all Employees, legally sufficient to perform
its obligations under the "Work Product" clause of this Agreement.
10. TAXES
All taxes, including, but not limited to, federal, state, and local income
taxes; franchise taxes; federal, state, and local sales and use taxes
(except sales or use taxes imposed on account of a transaction made under
this Agreement); gross receipts taxes; and property taxes, are deemed to be
included in the price of the Goods. If sales or use tax, value-added tax, or
custom duty tax is applicable to any of the Goods, it shall be so noted on the
Purchase Contract, and Supplier shall bill the tax separately on its invoice.
11. GENERAL PERFORMANCE
Supplier represents and warrants that Supplier has the legal right to enter
into, and perform its obligations under, this Agreement.
12. PROPRIETARY INFORMATION
a. Definition. For purposes of this Agreement, Supplier shall keep
confidential and otherwise protect from disclosure all information and
property obtained from Boeing in connection with this Agreement and
identified as confidential or proprietary ("Boeing Proprietary
Information"). Unless otherwise expressly authorized herein or by
Boeing, Supplier shall use Boeing proprietary Information only in the
performance and for the purpose of this Agreement.
b. Disclosure and Use. For a period of three (3) years after receipt,
the receiving party shall preserve Proprietary Information received
from the originating party in confidence, and shall refrain from
disclosing such Proprietary Information to any third party without
written authorization from the originating party. During the term of
the Project, the receiving party shall use Proprietary Information
received from the originating party solely in connection with the
Project. The disclosure and use obligations set forth above shall be
considered satisfied by the receiving party through the exercise of
the degree of care, but in no event less than reasonable care, used to
restrict disclosure and use of its own information of like kind and
importance.
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c. Exception. This Agreement shall not restrict disclosure or use of
Proprietary Information that is:
1) Known to the receiving party without restriction when received,
or thereafter is developed independently by the receiving party,
without reference to Proprietary Information of the originating
party; or
2) Obtained from a source other than the originating party through
no breach of confidence by the receiving party; or
3) In the public domain when received, or thereafter enters the
public domain through no fault of the receiving party; or
4) Disclosed by the originating party to a third party without
restriction; or
5) Required by applicable law or regulation, provided the receiving
party notifies the originating party of the requirement promptly,
and cooperates with the originating party (at the request and
expense of the originating party) in contesting the requirement.
d. No Other Rights Granted. Proprietary Information shall remain
the property of the originating party. Except for the rights
expressly granted under this Agreement, neither this Agreement
nor the disclosure of Proprietary Information hereunder shall
be construed as granting any right or license under any trade
secrets, copyrights, inventions, or patents now or hereafter
owned or controlled by either party. This Agreement does not
grant any right or license, or impose any restriction on use or
disclosure with respect to information, other than Proprietary
Information, disclosed or received by either party in connection
with the Project.
e. Wind-up Activities. Upon termination of the Project and unless
instructed to do otherwise by the originating party, the
receiving party shall cease use of and destroy all of the
Proprietary Information, if any, received from the originating
party. The originating party may request, and the receiving
party shall provide, written certification of the destruction.
Notwithstanding the foregoing, each party may retain one copy of
each and every permanent record of the Proprietary Information
disclosed to it under this Agreement solely as a record of the
disclosure.
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f. Transfer of Employees. Supplier acknowledges that Boeing is or
may be using third party programs, documentation, computing
equipment, and other products which provide functionality and
capabilities similar to those provided by the Goods. Likewise,
Boeing acknowledges that Supplier is developing, or may desire
to develop, new and improved products which address the needs and
requirements of customers similar to Boeing. Notwithstanding any
other provision of this clause or this Agreement, therefore, so
long as each party does not knowingly disclose Proprietary
Information received from the other party, each party may
transfer and allow those employees who have had
access to and reviewed the other party's Proprietary Information under this
Agreement to use the ideas, concepts, and know how gained from such access in
other assignments.
13. INFRINGEMENT
Supplier shall defend, indemnify, and hold harmless Boeing and its
subsidiaries and their respective directors, officers, employees, and
agents from and against all actions, causes of action, liabilities, claims,
suits, judgments, liens, awards, and damages of any kind and nature
whatsoever (hereinafter referred to as "Claims") and expenses, costs of
litigation (including without limitation clerk, paralegal, and expert
witness costs), and reasonable attorneys' fees related thereto, or incident
to establishing the right to indemnification, whether or not specifically
awardable under any court rules, to the extent such Claims arise out of the
infringement of any patent or copyright by the Goods, or involve the
wrongful use of any trade secret or confidential information. Boeing shall
give Supplier notice of all Claims made against Boeing, give Supplier an
opportunity to defend or settle such Claims, and cooperate with Supplier
(at Supplier's expense) in the defense or settlement. In no event shall
Supplier's obligations hereunder be limited to the extent of any insurance
available to or provided by Supplier or any Subcontractor.
14. PREMISES INDEMNIFICATION
a. Supplier's Indemnity. Supplier shall defend, indemnify, and hold
harmless Boeing, its subsidiaries and their respective directors,
officers, employees, and agents (hereinafter referred to as
"Indemnitees") from and against all actions, causes of action,
liabilities, claims, suits, judgments, liens, awards, and damages,
of any kind and nature whatsoever (hereinafter referred to as
"Premises Claims"), for property damage, bodily injury, or death
(including, without limitation, Premises Claims brought by employees
of Supplier or any Subcontractor) and expenses, costs of litigation
(including without limitation clerk, paralegal, and expert witness
costs), and reasonable attorneys' fees related thereto, or incident
to the right to indemnification, whether or not specifically
awardable under any court rules, arising out of or any way related
to the performance of the contract by Supplier or any Subcontractor,
or their respective employees including, without limitation, the
provision of services, personnel, facilities, equipment, support,
supervision, or review, to the extent such claims arise from any
negligent act or omission or willful misconduct of Supplier, any
Subcontractor, or their respective employees. Supplier expressly
waives any immunity under industrial insurance, whether arising from
Title 51 of the Revised Code of Washington or any other statute or
source, to the extent of the indemnity set forth in this paragraph.
In no event shall Supplier's obligations hereunder be limited to the
extent of any insurance available to or provided by Supplier or any
Subcontractor.
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b. Subcontractor Indemnification. Supplier shall require each
Subcontractor to provide an indemnity, enforceable by and for the
benefit of, the Indemnitees, to the same extent required of Supplier.
15. INSURANCE
a. Commercial General Liability. Throughout the period of performance
of this Agreement and until final acceptance by Boeing, Supplier
shall carry and maintain, and shall ensure that all Subcontractors
carry and maintain, Comprehensive General Liability insurance with
limits of not less than One Million Dollars ($1,000,000) per
occurrence for bodily injury, including death, and property damage
combined. Such insurance shall be in a form and with insurers
acceptable to Boeing, and shall contain coverage for all premises and
operations, broad form property damage, contractual liability, and
products and completed operations insurance. Any policy or policies
that provide the insurance required under this paragraph shall be
endorsed to name "The Boeing Company, its subsidiaries, and their
respective directors, officers, agents, and employees" as additional
insureds with respect to liability arising out of work performed by
Supplier or any Subcontractor, as applicable (ISO 20 10 Form B, or
equivalent, without limitation, reservation, or qualification).
b. Automobile Liability. If licensed vehicles will be used in
connection with the performance of this Agreement, Supplier shall
carry and maintain, and ensure that any Subcontractor who uses a
licensed vehicle in connection with the performance of this Agreement
carries and maintains, throughout the period of performance of the
Agreement, Automobile Liability insurance covering all vehicles,
whether owned, hired, rented, borrowed, or otherwise, with limits of
liability of not less than One Million Dollars ($1,000,000) per
occurrence combined single limit for
bodily injury and property damage.
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c. Workers' Compensation and Employers Liability. Throughout the
period of performance of this Agreement and until final acceptance
by Boeing, Supplier shall carry and maintain, and ensure that all
Subcontractors carry and maintain, insurance in accordance with the
applicable laws relating to workers' compensation with respect to
all of its employees working on or about Boeing premises, regardless
of whether such coverage or insurance is mandatory or merely
elective under the law. Supplier shall also carry and maintain, and
shall ensure that all Subcontractors carry and maintain, Employers
Liability coverage with limits of not less than Five Hundred
Thousand Dollars ($500,000) each accident. To the extent provided
by law, any policy which provides any of the insurance required
under this paragraph shall contain a waiver of rights of subrogation
against Boeing, its subsidiaries and their respective directors,
officers, agents, and employees. If Boeing is required by any
applicable law to pay workers' compensation premiums with respect to
employees of Supplier or any Subcontractor, Supplier shall reimburse
Boeing for such payment.
d. Certificates of Insurance.
(1) Prior to the commencement of the period of performance, Supplier
shall provide for Boeing's review and approval certificates of
insurance reflecting full compliance with the requirements set
forth in the paragraphs entitled "Commercial General Liability,"
"Automobile Liability," and "Worker's Compensation and Employers
Liability" of this clause. Such certificates shall be kept
current and in compliance throughout the period of performance
and until final acceptance by Boeing, and shall provide for
thirty (30) days advance written notice to Boeing in the event
of cancellation or material change adversely affecting the
interests of Boeing. Any policy or policies providing the
insurance required under this clause may be inspected by Boeing
upon request.
(2) Supplier at Supplier's expense shall maintain or cause to be
procured and maintained the policies of insurance required under this
clause. Any self retained layer, deductibles, and exclusions in
coverage in such policies shall be assumed by, for the account of, and
at the sole risk of Supplier or the Subcontractor which provides the
insurance and, to the extent applicable, shall be paid by such
Supplier or Subcontractor. In no event shall the liability of
Supplier or any Subcontractor be limited to the extent of any
insurance available to or provided by Supplier or any Subcontractor,
or to the minimum limits of insurance required under this clause.
(3) Where Supplier is subject to the requirements of a "monopolistic"
state which does not permit insured workers compensation, a
written letter confirming participation in a state fund or,
alternatively, confirming a state approved self insurance
program, will satisfy the certificate requirement. Such letter
will identify the state account or self insurer number. For
Employer's Liability coverage in such monopolistic states,
evidence of a "Stop Gap" endorsement to the General Liability
policy is acceptable proof of compliance with the Employer's
Liability insurance requirement.
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16. TERMINATION FOR CONVENIENCE
Termination. Boeing may terminate any Purchase Contract, in whole or in part,
by providing notice of such termination to Supplier, specifying the extent and
effective date of such termination thereof. On the specified termination date,
Supplier shall (i) stop Work to the extent specified in the termination notice,
and (ii) cease shipment of all Goods covered by the termination notice, other
than those already delivered and accepted in accordance with this Agreement as
of the termination date. Supplier shall continue to perform those obligations
under this Agreement to the extent not terminated.
Effect of Termination. In the event and to the extent of any termination under
this clause, all obligations of Supplier and all rights and licenses of Boeing
under the Purchase Contract involved shall thereupon be terminated, but only
with respect to the Goods covered by the termination notice. Supplier shall
continue to perform those obligations under this Agreement to the extent not
terminated.
c. Termination Payment. In the event and to the extent of any termination
under this clause, Boeing's total liability shall be to pay Supplier the
purchase price for all Goods delivered and accepted, but not paid for under the
Purchase Contract, on or prior to the termination date specified in the
termination notice. Supplier shall give Boeing written notice of its intent to
submit any claims for compensation under this clause within thirty (30) days
after the effective date of termination, and shall submit all such claims within
sixty (60) days after the effective date of termination. Supplier hereby
waives, releases, and renounces any claim for compensation not made within this
period.
17. CANCELLATION FOR DEFAULT
a. Cancellation. Either party may cancel any Purchase Contract, in
whole or in part, to the extent the other party fails to perform any
of its material obligations under the Purchase Contract, and does not
cure the failure within thirty (30) days after service of a default
notice, specifying the failure.
b. Effect of Cancellation. In the event and to the extent of any
cancellation under this clause, all obligations of the nondefaulting
party and all rights and licenses of the defaulting party under the
Purchase Contract shall thereupon be canceled, but only with respect
to the Goods covered by the cancellation notice, and all rights and
licenses of the nondefaulting party and all accrued obligations of
the defaulting party under the Purchase Contract shall survive. In
the event of a Supplier default, Boeing may request, and Supplier
shall deliver, the most currently available Goods.
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c. Cancellation Payment. In the event and to the extent of any
cancellation by Supplier under this clause, Boeing's total liability
shall be to pay Supplier for the Goods delivered and accepted, but not
paid for under the Purchase Contract, on or prior to the effective
date of cancellation. Boeing may return, and Supplier shall have no
claim against Boeing for, Goods not accepted by Boeing or for rejected
Goods. Supplier shall give Boeing written notice of its intent to
submit any claims for compensation under this clause within thirty
(30) days after the effective date of cancellation, and shall submit
all such claims within sixty (60) days after the effective date of
cancellation. Supplier hereby waives, releases, and renounces any
claim for compensation not made within this period.
d. Termination for Convenience. If, after issuance of a default notice
under the paragraph entitled "Cancellation" of this clause by Boeing,
it is determined for any reason that the Supplier was not in default,
or that the default was excusable under the provisions of this
Agreement, then there will be no cancellation and the Purchase
Contract will be terminated for convenience in accordance with the
provisions of the clause entitled "Termination for Convenience," as of
the date the cancellation would have taken effect under this clause.
18. DELAYS
The time for performance by either party under this Agreement shall be
extended for a period equal to any delay caused by unforeseeable causes
beyond the control of the party. These causes include acts of God acts
of war epidemics fire power failure and labor difficulties between the
party and its employees.
19. COMPLIANCE
a. With Applicable Laws. Supplier warrants that in the performance of
its obligations under this Agreement, it has complied with or will
comply with Chapters 6, 7, and 12 of the Fair Labor Standards Act,
as amended, and the regulations of the U.S. Department of Labor
issued thereunder. The provision entitled "Equal Opportunity" set
forth in FAR 52.22226 is incorporated herein by this reference,
except that "Contractor" means Supplier. Upon request, Supplier
shall submit certification that it performed its obligations under
this Agreement in accordance with the foregoing warranty.
b. With Boeing and Local Rules and Regulations. Supplier shall ensure
that any Employees on any Boeing premises (i) comply with Boeing's
employee rules of conduct, including, without limitation, Boeing's
security and safety procedures, and (ii) comply with all federal,
state, and local health, safety, and environmental laws and
regulations applicable to such Boeing premises.
c. With Export Laws and Regulations. Boeing shall comply with the
laws and regulations of the United States and its departments and
agencies, relating to the export of technical data.
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20. RECORDS AND AUDIT
For a period no less than three (3) years after final payment under each
and every Purchase Contract, Supplier shall retain source data supporting
list prices for all items billed to Boeing. Source data means documents,
including, without limitation, price lists dating back to the time the
order was placed, sufficient to verify the correctness of the price
charged Boeing. Supplier shall, upon request by Boeing, make source data
available to Boeing for examination, reproduction, and audit.
21. PROTECTION OF PROPERTY
Unless otherwise specified, upon delivery to Supplier, or manufacture or
acquisition by Supplier, of any materials, parts, tooling, data, or other
property, title to which is in Boeing, Supplier assumes the risk of, and
shall be responsible for, any loss thereof or damage thereto.
In accordance with the provisions of the Purchase Contract, but in any
event upon delivery of the Goods, Supplier shall return such property to
Boeing in the condition in which it was received except for reasonable
wear and tear and except for such property as has been incorporated in
the Goods or reasonably consumed in the performance of the Work.
22. NOTICES
Any notice, authorization, designation, request, or instruction under or
in connection with this Agreement to be effective shall be in writing and
shall be deemed duly given or served upon delivery, addressed as set
forth below. Either party may notify the other in the foregoing manner
of any other address to which such communications are to be addressed
under this Agreement.
BOEING: SUPPLIER:
The Boeing Company Supplier TMS, Inc.
Management & Procurement
P. O. Box 3707 M/S 206 W. 6th Avenue
Seattle, WA 98124-2207 Stillwater, OK 74074-4017
Attention: Supplier Attn: Shari McClure
Management & Procurement - Product Manager
Share Services
23. RELATIONSHIP OF THE PARTIES AND THEIR EMPLOYEES
a. Independent Contractors. Supplier is an independent contractor.
Nothing in this Agreement shall be construed as creating any
relationship between Supplier and Boeing other than that of buyer and
seller, or licensor and licensee, respectively. This Agreement is not
intended to be, nor shall it be construed as, a joint venture,
association, partnership, franchise, or other form of business
organization or agency relationship.
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b. No Agency. Neither party shall have any right, power, or authority to
assume, create, or incur any expense, liability, or obligation, express
or implied, on behalf of the other, except as expressly provided
herein.
24. DISASTER RECOVERY
In the event of a disaster or catastrophe totally or partially disabling
Boeing's computing or telecommunications capability, whether due to natural
or man-made causes, Supplier agrees to use its best efforts to aid in the
prompt restoration of computing or telecommunications capability, including
but not limited to furnishing of emergency replacements of Goods upon
request via overnight delivery, provision of maintenance services, and
providing technical assistance to Boeing in its attempts to recover data.
Boeing shall be treated at least as favorably as Supplier's most favored
customer in the event that the disaster or catastrophe affects others.
Boeing and Supplier shall negotiate in good faith to provide reimbursement
to Supplier for the actual costs of time, materials, and shipping involved
in such emergency response.
25. GENERAL PROVISIONS
a. Severability. If any provision of this Agreement shall be held by
a court of competent jurisdiction to be illegal, invalid, or
unenforceable, the remaining provisions shall remain in full force
and effect.
b. Assignment. Except as set forth in the paragraph entitled
"Subcontractors" of the clause entitled "Supplier's Employees and
Subcontractors," neither this Agreement, nor any obligations under
it, may be assigned or delegated by either party without the prior
written consent of the other party, except that Boeing may
unilaterally assign this Agreement, in whole or in part, to any
subsidiary of Boeing.
c. Publicity. Neither party shall use the name of the other party in
any news release, public announcement, advertisement, or other form
of publicity without securing the prior written consent of the
other. Neither party shall disclose any of the terms of this
Agreement to any third party without the prior written consent of
the other, except to the party's auditors or attorneys or under
subpoena duly issued by a court of competent jurisdiction.
Notwithstanding the foregoing, Boeing hereby consents to Supplier's
inclusion of Boeing's name in a customer listing published in a
prospectus or an annual report, provided Boeing is not the sole
customer listed.
d. Survival. Except for any licenses expressly terminated or
canceled, all licenses granted under this Agreement, all
indemnities, warranties, and representations made under this
Agreement, and all accrued obligations under the clause entitled
"Proprietary Information" and the paragraph entitled "Publicity"
will survive cancellation or termination of this Agreement.
Cancellation or termination of this Agreement or any Purchase
Contract will not affect operation of those provisions of this
Agreement which, by their terms, survive or are required to
effectuate the intent of the parties, as reflected by this
Agreement.
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e. Third-Party Beneficiary. Every subsidiary of Boeing is an intended
third-party beneficiary of this Agreement with rights of
enforcement.
f. Rights and Remedies. Except as limited under this Agreement, the
rights and remedies afforded to each party under this Agreement are
in addition to any other rights or remedies, at law or in equity, or
otherwise, including, without limitation, the rights and remedies of
Boeing as a licensee of intellectual property under
11 U.S.C. 365(n) (e.g., to retain its rights under this
Agreement, and to request and obtain a copy of the source code and
associated programmer's notes of any computer software provided to
Boeing under this Agreement in object code form, as the embodiment
of such intellectual property).
g. Waiver. Either party's failure to exercise any of its rights under
this Agreement shall not constitute a waiver of any past, present,
or future right or remedy.
h. Litigation. The prevailing party in any litigation arising out of
this Agreement shall be entitled to recover its expenses, costs of
litigation (including without limitation clerk, paralegal, and
expert witness costs), and reasonable attorneys' fees from the
losing party, whether or not specifically awardable under any court
rules. The venue for any such litigation shall be King County,
Washington.
i. Controlling Law. This Agreement shall be construed under and
governed by the law of the State of Washington, without regard to
conflict of law provisions.
j. Acknowledgement. Supplier acknowledges that it has not been
induced to enter into this Agreement by any representations or
promises not specifically stated in this Agreement, and that the
provisions of this Agreement (including, without limitation, the
clauses entitled "Infringement" and "Premises Indemnification") have
been negotiated by the parties and reflect an allocation of risk
between the parties which is a basis of their bargain, both now and
with respect to each and every Purchase Contract.
k. Amendments. These terms and conditions may not be changed,
amended, or modified, except by an amendment in writing, executed by
the Authorized Boeing Representative and an authorized
representative of Supplier.
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l. Complete Agreement. This Agreement contains the complete and
exclusive statement of the terms of the agreement between Boeing and
Supplier with respect to the Goods, and merges any prior or
contemporaneous agreements, commitments, proposals, representations,
or communications, oral or written, with respect to the Goods.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed in
duplicate originals by their duly authorized representatives as of the dates
set forth below.
THE BOEING COMPANY TMS, Inc.
(Acting through its division,
Boeing Shared Services Group)
By: /s/ Nancy Davenport By: /s/ Richard Scanlan
Title: Sr. Procurement Agent Title: VP Internet Products
Date: 1/11/2000 Date: 1/27/00