EXHIBIT 10.146
RESELLER AGREEMENT
This Reseller Agreement (the "Agreement"), is entered into on the latest date of
the signatures below ("Effective Date") by and between Williams-Sterling, Inc.,
a Virginia corporation with its principal location at 21153 Gibson's Lane,
Lignum, VA 22726-1956 ("WSI"), and HiEnergy Technologies, Inc., a Delaware
Corporation, with its principal location at 1601B Alton Parkway, Irvine, CA
92606, and all of its subsidiaries ("Vendor").
In exchange for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Vendor and WSI agree as follows:
1) Right to Resell. During the term of this Agreement, Vendor grants to WSI and
WSI accepts the non-exclusive right to resell the products listed in Exhibit A
("Products").
2) Vendor Warranty. Vendor warrants that the Products will perform substantially
in accordance with the Documentation and other specifications published by
Vendor.
3) Regulatory Compliance. Vendor shall comply with the following Federal
Acquisition Regulation (FAR) clauses: (i) 52.212-4 Contract Terms and Conditions
- - Commercial Items; (ii) 52.222-26, Equal Opportunity; (iii) 52.222-35,
Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era; (iv)
52.222-36, Affirmative Action for Workers with Disabilities; (v) 52.225-1, Buy
American Act -- Balance of Payments Program -- Supplies; (vi) 52.225-2, Buy
American Act Balance of Payments Program Certificate; (vii) 52.225-5, Trade
Agreements; (viii) 52.249-2, Termination for Convenience of the Government
(Fixed-Price); and (ix) 52.249-8, Default (Fixed-Price Supply and Service). For
purposes of this Agreement and any orders issued hereunder, the term "contract"
shall mean this Agreement; the term "Contractor" shall mean Vendor; the term
"Government" and "Contracting Officer" shall mean WSI, unless the function to be
performed can only be performed by the Government.
4) Software License Grant. During the term of this Agreement Vendor grants to
WSI a non-exclusive, non-transferable license to distribute the Interrogator
software ("Software") to WSI customers ("License"). The Software shall be and
remain the sole and exclusive products of Vendor and WSI shall have no rights
whatsoever in or to the Software. WSI agrees not to remove from any copies of
the Software any statements appearing thereon regarding copyrights or
proprietary rights of Vendor. WSI shall not copy (in any form), distribute,
sell, lease, assign, encumber, license or sub-license this Software or programs
written using this Software, including derivative modifications or extensions of
them, to any WSI Customer or other party without prior written consent from
Vendor. WSI hereby acknowledges and agrees that the Software may be licensed by
Vendor to other users without limitation of any kind. WSI acknowledges that the
license granted hereby extends solely to WSI Customer and that Software shall
not be used by any other division, subsidiary or affiliated entity. WSI
acknowledges that the computer program, manuals and related data which comprise
or are related to the Software are proprietary products of Vendor who retains
all rights, title and interest, including copyright to these products. WSI
agrees that the Software source code of Interrogator(TM) constitutes protected
information, which is equivalent to trade secret information of Vendor, whether
or not any portion thereof is or may be the subject of a valid copyright or
patent. WSI agrees not to reverse assemble, reverse compile, reverse engineer or
otherwise attempt to discover the source code of any of the Software, except to
the extent WSI may be expressly permitted by HiEnergy. The Software is subject
to the U.S. Governments Restricted Rights Legend and use, duplication, or
disclosure by the Government is subject to restrictions set forth in
Subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software
clause at 52.227-7013 of the Department of Defense Federal Acquisition
Regulations (FAR). The software is provided subject to Vendor's standard
commercial software license ("Commercial License"); provided, however, software
acquired for use within or for any United States federal agency is provided with
"LIMITED RIGHTS" and "RESTRICTED RIGHTS" as defined in DFARS 252.227-7015 and
FAR 52.227-19.
4) Order Cancellation. WSI may cancel without penalty or cost any order for
which the underlying order by a WSI customer has been canceled prior to
acceptance and WSI may return for a full refund and without penalty any Products
received by WSI in connection with such order.
5) Delivery Schedule. In the event Vendor is unable to deliver WSI's entire
order according to the delivery schedule, WSI may, at its sole option, (i)
cancel the order without penalty, or (ii) accept partial delivery, in which
event such delivery shall be separately invoiced and paid for. If WSI accepts
partial delivery, it may cancel the remainder of its order at any time at least
five (5) days prior to Vendor's shipment of the remaining portion.
6) Pricing. The prices for Products shall be sold for the term of this Agreement
to WSI at no higher price than the price set forth in Exhibit A hereto. The
stated prices and discounts on Exhibit A shall be firm.
7) Controlling Terms and Conditions. The terms and conditions of this Agreement
shall apply to each order accepted or shipped by Vendor hereunder. Vendor agrees
that any terms or conditions contained in any acknowledgment, invoice or other
form issued by Vendor shall not be binding on WSI to the extent that such terms
and conditions are additional to or inconsistent with those contained in this
Agreement, and no act of WSI other than an express agreement in writing shall be
deemed an acceptance of any such term or condition.
8) Payment Terms. Payment terms shall be net 30 days from receipt of Vendor's
invoice. Reseller via its Escrow Agent shall be responsible for all End User
billing, and collection of payments from End User.
9) Relationship of the Parties. The only relationship between WSI and Vendor
which is intended to be created by this Agreement is that of independent
contractors or reseller partner, and neither party shall be nor represent itself
to be an agent, employee or joint venture of the other, nor shall either party
transact any business in the name of the other, or on the other's behalf, or in
any manner or form make promises, representations, or warranties or incur any
liability, direct or indirect, contingent or fixed, for or on behalf of the
other party
10) Indemnification; Limitation on Liability. Each party shall indemnify and
save the other harmless from and against any and all liability for injury to
persons or property occasioned wholly or in part by an act or omission of the
other party, its sub-contractors, affiliates, suppliers, or employees, including
any and all expense, legal or otherwise, incurred by the injured party in the
claim or suit, actual or threatened, arising out of the use of the product or
services performed under this Agreement; provided, however, that each party
shall not be liable for injury to persons or property caused by the sole
negligence of the other party, its agents or employees. Each Party shall notify
the other within thirty (30) days of any claim or suit filed against the injured
party which is covered by this indemnification provision and shall authorize
representatives of the other party to settle or defend any such claim or suit
and to represent the injured party in, or to take charge of, any litigation in
connection therewith.
Except as otherwise specifically provided in this Agreement, each party shall
provide reasonable cooperation and assistance and keep the other party informed
of the progress of the defense of any claim or suit and will confer with each
other on strategies for the defense and settlement of the claim. Each party's
obligation to indemnify the other shall be reduced to the extent each Party's
negligence contributed to the liability.
11) Infringement. Vendor will indemnify, defend, and hold harmless at its
expense any claim or suit, actual or threatened, brought against WSI, its
affiliates, shareholders, directors, officers, employees, contractors, agents
and customers alleging (i) any product infringes a patent, copyright, trade
mark, trade secret or other intellectual property right; (ii) any Product is in
any way defective or does not conform to Vendor's published specifications,
warranty, Documentation, advertisements or trade representations; and/or (iii)
any act or omission to act by Vendor or its subcontractors and will pay all
costs and damages finally awarded, if WSI provides Vendor (1) written notice
within thirty (30) days of the claim; (2) all information reasonably requested
that WSI possesses about the claim; (3) reasonable cooperation and assistance;
and (4) sole authority to defend or settle the claim. In the event the product
is held or is believed by Vendor to infringe, Vendor shall have the option, at
its expense, to (a) modify the product to be non-infringing; (b) obtain for
Customer, at Vendor's expense, a license to continue using the product; or (c)
refund the replacement cost for the product. Vendor is not obligated to
indemnify WSI under this provision if the claim results only from: (i) the
unauthorized use of the product with other products not furnished or specified
by Vendor provided there is a substantial non-infringing use for the product; or
(ii) unauthorized modifications to the product that are not made by Vendor or
that are not made in accordance with Vendor's instructions. When under the
authorization and consent of the United States Government to infringe United
States patents (see FAR 52.227-1), Vendor's liability for infringement of such
patents pursuant to such performance shall be limited to the extent of the
obligation of WSI to indemnify or hold harmless the United States Government.
12) Limitation of Liability. EXCEPT FOR VENDOR'S IP INDEMNIFICATION OBLIGATIONS
SET FORTH ABOVE IN SECTION 11 ABOVE, NEITHER PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING BUT
NOT LIMITED TO LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE
LIKELIHOOD OF SUCH DAMAGES OCCURRING.
13) Rights to Trademarks and Intellectual Property. Reseller agrees that all of
HiEnergy Technologies' rights, including but not limited to, intellectual
property rights, trademarks, and copyrights, shall fully remain with HiEnergy
Technologies. Reseller shall act merely as a reseller of products/services, and
shall gain no rights over HiEnergy Technologies or HiEnergy Technologies
products.
14) Compliance with Laws. Both parties and their duly authorized representatives
shall comply, at their own expense, with all applicable federal, state, and
local laws, statues, ordinances, administrative or executive orders,
regulations, and rules. As may be required by law, both parties agree to submit
all reports, certifications, and other documents and shall provide all product
information related to the handling of the products purchased under this
Agreement.
Both parties agree to comply fully with all relevant export laws and regulations
of the United States ("Export Laws") to assure that the product is not (1)
exported, directly or indirectly, in violation of Export Laws; or (2) intended
to be used for any purposes prohibited by the Export Laws.
15) Force Majeure. Neither party is liable for failing to fulfill its
obligations due to causes beyond its reasonable control and without its fault or
negligence. Examples of such causes include but are not limited to (1) acts of
God or of the public enemy, (2) acts of the Government in either its sovereign
or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine
restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe
weather. Each party must use reasonably best efforts to notify the other party
of conditions that are expected to result in a delay in or failure of
performance ("Force Majeure Conditions") within three (3) working days of the
occurrence. If a Force Majeure Condition, which limits, delays or prevents the
Vendor from performing its obligations under this Agreement, WSI may elect to:
(1) terminate an Order without any cost or penalty or (2) suspend an Order for
the duration of the Force Majeure Condition.
15) Term. This Agreement shall commence on the Effective Date and remain
effective for a period of one (1) year. After the one (1) year period, HiEnergy
shall review the status of the Agreement and determine whether to extend the
term. If at such time, there is no discernable revenue or any forecasting of
revenues, the relationship shall immediately terminate upon ten (10) days prior
written notice.
16) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California, without regards to the
conflicts of law principles thereof, as applied to contracts entered into and/or
performed entirely in that jurisdiction and the United Nations Convention on
Contracts for the International Sale of Goods (1980). Notwithstanding the
foregoing, any provision in this Order that is (i) incorporated in full text or
by reference form, or substantially based on, the Federal Acquisition Regulation
("FAR") or similar governmental authority shall be construed and interpreted
according to the federal common law of government contracts as applied by
federal judicial bodies, Boards of Contract Appeals, and quasi-judicial agencies
of the federal Government.
17) Disputes. Any dispute not disposed of within one-hundred twenty (120) days
from the date either party receives written notification from the other party of
the dispute, regardless of the causes of action alleged, will be resolved by
arbitration in the Commonwealth of Virginia, before a single arbitrator who is
knowledgeable in diagnostic 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 in adjudicating the
dispute. Both Parties may appeal the Arbitrator's decision and may take any
action, judicial or administrative, to appeal and overturn this decision. The
arbitrator shall not have the power to award punitive or exemplary damages. Each
Party will bear its own attorneys' fees and costs related to the arbitration.
Any claim or action must be brought within two (2) years after the cause of such
action.
Williams-Sterling, Inc. HiEnergy Technologies, Inc.
By: /s/ James H. Williams By: /s/ James H. Williams
- ---------------------------------- -----------------------------------
Print Name/ Print Name/
Title: James H. Williams, Chairman Title: B.C. Maglich, CEO
Date: 01/23/06 Date: 1/30/06
EXHIBIT A
VENDOR PRODUCTS; LIST PRICES; WSI PRICE
WSI Pricing Matrix
COPY TO SHIRLEY THOMPSON
- ----------------------------------------------------------------------------------------------------------------------
VENDOR NAME VENDOR PART # PRODUCT DESCRIPTION @ QTY 1 COMMERCIAL ACTUAL STREET WSI COST
LIST, MSRP, @ PRICE/SALES PRICE DISCOUNT
QTY 1 QUANTITY ONE OR
GSA PRICE
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
HiEnergy SIEGMA(TM) 3E3 SIEGMA(TM) 3E3 system - Includes 1 25.00%
yr. warranty, shipping and
handling. (excludes training,
service & maintenance)
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
HiEnergy Car Bomb Car Bomb Finder(TM) 3C5 - Includes 25.00%
Finder(TM) 3C5 1 yr. warranty, shipping and
handling. (excludes training, Parts
& Labor service & maintenance)
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
HiEnergy Car Bomb Finder Car Bomb Finder 3C4(TM) - Includes 25.00%
3C4(TM) First response Vehicle-Van, 1
yr. warranty, shipping and Parts & Labor
handling. (excludes training,
service & maintenance)
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
HiEnergy STARRAY(TM) STARRAY(TM) - Includes 1 yr. 25.00%
warranty, shipping and handling.
(excludes training, service &
maintenance)
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
HiEnergy MP1 Service, Maintenance & Training 25.00%
(per unit) - 1 yr. increment.
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
HiEnergy WRNT Extended warranty - 1 yr 25.00%
increments
- ----------------------------------------------------------------------------------------------------------------------
WSI Pricing Matrix
COPY TO SHIRLEY THOMPSON
- -------------------------------------------------------------------------------------------------------------
VENDOR NAME WSI ADDITIONAL WARRANTY TYPE WARRANTY TIME WEIGHT PRODUCTS
DISCOUNT% FOR REPLACE SW, REPLACE COUNTRY OF
GWAC'S, IDIQ'S, HW, DEPOT/ON-SITE ORIGIN
BPA'S, STATE &
LOCAL, ETC
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
HiEnergy n/a Full - Software 1 YR. 105 lbs U.S.A.
Pro-rated-Hardware
Parts & Labor
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
HiEnergy n/a Full - Software 1 YR. n/a U.S.A.
Pro-rated-Hardware
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
HiEnergy n/a Full - Software 1 YR. n/a U.S.A.
Pro-rated-Hardware
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
HiEnergy n/a Full - Software 1 YR. n/a U.S.A.
Pro-rated-Hardware
Parts & Labor
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
HiEnergy n/a n/a n/a n/a n/a
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
HiEnergy n/a n/a n/a n/a n/a
- -------------------------------------------------------------------------------------------------------------
PRICING AND PRODUCT LISTED ABOVE VALID FOR ONE YEAR
REMITTANCE INFORMATION:
Remit Payment Information
- -------------------------
Accounts Payable Contact name: Carrie Geyer
Address: 1601 Alton Parkway, Unit B
City, State, Zip: Irvine, California 92606
Phone: (949) 757-0855 Ext. 211
FAX: (949) 757-1477
Email Address: cgeyer@hienergyinc.com
Return Product Info
- -------------------
Contact name: Sean Moore
Address: 1601 Alton Parkway, Unit B
City, State, Zip: Irvine, California 92606
Phone: (949) 757-0857
Email Address: smoore@hienergyinc.com
Purchase Order Information
- --------------------------
PO Contact Name: Sean Moore
Address if different from above
City State Zip
Phone: (949) 757-0860
FAX: (949) 757-1477
Email Address: smoore@hienergyinc.com
Pricing & Contract Contact
- --------------------------
PO Contact Name: Roger Spillmann
Address if different from above
City State Zip
Phone: (949) 757-0860
FAX: (949) 757-1477
Email Address: rspillmann@hienergyinc.com
CURRENT COMPANY NAME: HiEnergy Technologies, INC.
COMPANY TAX ID # 912-022-980
Internet address: www.hienergyinc.com