**Exhibit10.42**

 

**InVision Technologies, Inc.**

7151Gateway Boulevard

Newark,California 94560

Telephone:510 739 2400

Facsimile:510 739 6400

 

**SUPPORT AND MAINTENANCE AGREEMENT**

 

 

*****TextOmitted and Filed Separately**

**ConfidentialTreatment Requested**

**Under 17C.F.R. §§ 200.80(b)(4) and 240.24b-2**

 
| **PURCHASER**                                          | Contract Number:                                       | SMA-021119-G                  |
|--------------------------------------------------------|--------------------------------------------------------|-------------------------------|
| Siemens  Explosive-Detection Field Services, LLC.      | Quotation Date:                                        | November  24, 2002            |
|                                                   | Quotation Expires:                                     | 30  days after Quotation Date |
|                                                   |                                                   |                          |
| Address for Notices:  Attn:  David French         |                                                   |                          |
|                                                   | 250 E. Arapaho, Suite  175  Richardson, TX  75081 | Beginning Date:               | November  1, 2002 |
| Phone:                                                 |  972-238-6810                                     | Length of Term:               | Until  December 31, 2002, with five one-year options to renew |
| Fax:E-mail:                                            | 972-238-6898  david.french@siemens.com            | Serial No /   Location:       | Per  Exhibit 2 |
|                                                   |                                                   |                          |
| Technical / Performance  Contact:  Dave Patterson |                                                   |                          |
| Phone :  972-238-6833                        |                                                   |                          |
| Fax :      972-238-6898  |                                                   |                          |
|                                                   |                                                   |                          |
| Billing Contact:                                       | Payment Terms:                                         | Monthly                       |
| Address:                                               | (Upon approval)                                        |                          |
| Phone:                                                 |                                                   |                          |
| Fax:                                                   |                                                   |                          |
| E-mail:                                                |                                                   |                          |
|                                                   |                                                   |                          |
|                                                        |                                                        |                               |  |  |

 
| **Qty**   |   | **Product  Description**                                                                                                                                                                             |   | **Unit Price  $US** |   | **Total  Price  $US** |   |
|-----------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------|--------|-----------------------|--------|
| **App**   |   | **Comprehensive Support Plan**                                                                                                                                                                       |   | 1st  year           |   | 1st  year             |   |
| **[***]** |   | •    24-hour telephone technical support                                                                                                                                         |   | CTX 2500 $[***]     |   | $ [***]               |   |
| **[***]** |   | •    Modem remote diagnostic support                                                                                                                                             |   | CTX 5500 $[***]     |   | $ [***]               |   |
| **[***]** |   | •     Software  upgrades for maintenance and “bug fixes,” not new features or software that  requires modified hardware                                           |   | CTX 9000 $[***]     |   | $ [***]               |   |
|      |   | •     60 minutes or less telephone  response time                                                                                                                           |   |                |   |                  |   |
|      |   | •     On-site response subject to  local conditions                                                                                                                         |   |                |   |                  |   |
|      |   | •     InVision  performs Response Maintenance, Monthly Preventive Maintenance and Remedial  Service during covered hours (M-F 0800 — 1700 except holidays, local time) |   |                |   |                  |   |
|      |   | •     Purchaser  may request maintenance or service during other hours at InVision’s billable  rate                                                                    |   |                |   |                  |   |
|      |   | •     InVision  performs Quarterly Preventive Maintenance during off-peak hours                                                                                             |   |                |   |                  |   |
|      |   | •     Defective  parts replaced on a return basis ·Consumables included during scheduled  maintenance                                                                  |   |                |   |                  |   |
|      |   |                                                                                                                                                                                                 |   |                |   |                  |   |
| **[***]** |   | **Extended  Hours Support**                                                                                                                                                                          |   | 1st  year           |   | 1st  year             |   |
|      |   | •     Extends covered hours to 24 hours / day,  365 days / year during the warranty or service period                                                                       |   | $ [***] / year      |   | $ [***]               |   |

 

**CONFIDENTIAL**

 

----

 

**SUPPORTAND MAINTENANCE   Contract No. Error! Reference source not found.**

 
| **Qty** |   | **Product  Description**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   | **Unit Price  $US** |   | **Total  Price  $US** |   |
|---------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------|--------|-----------------------|--------|
|    |   | **Special  Conditions**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |   |                |   |                  |   |
|    |   | •     NOTE:   Quantities shown are estimates.   Actual quantities will be the number of CTX systems operated by the  TSA (see paragraph SC-2).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |   |                |   |                  |   |
|    |   | •     Price  Escalation.  The price (unit prices  and billable rates) shall be adjusted on April 1 of each year, beginning on  April 1, 2003, based on the [***] in the index specified below, between  the base period April, 2002, and April of the most recent year.  All calculations for the index shall be  based on the latest version of the Employment Cost Index (not seasonally  adjusted), as published by the U.S. Department of Labor, Bureau of Labor  Statistics.                                                                                                                                                                                                                                                                                                            |   |                |   |                  |   |
|    |   | •     Support.   InVision will provide support necessary to meet the Key Performance  Metrics (KPM):  [***] % operational  availability (AO), [***] hours mean time to repair (MTTR), and  [***] hours mean time between failure (MTBF).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |   |                |   |                  |   |
|    |   | •     Customer  Assistance Center.  All service calls  will be received by the Boeing controlled Call Center.  The Call Center will then communicate to  InVision’s Customer Assistance Center to direct efforts by InVision in the  field.  If InVision receives calls  requesting initial service from others, InVision will immediately communicate  these calls to the Boeing Call Center to ensure proper tracking.                                                                                                                                                                                                                                                                                                                                                                |   |                |   |                  |   |
|    |   | •     Familiarization  Training.  InVision will provide  factory introductory training about InVision’s CTX series of explosive  detection systems, including theory of operation and explanation of  features.  InVision will provide one  class for all of Purchaser’s designated representatives, not to exceed twenty  persons.  The training will occur at  InVision’s factory, and Purchaser will bear all travel and related expenses  for its Managers.  InVision will  provide additional classes for a mutually agreed price.                                                                                                                                                                                                                                  |   |                |   |                  |   |
| **TBD** |   | •     “Smart  Hands” Training.  InVision will  provide factory training for Purchaser’s field service technicians to act as  “Smart Hands” for the service of InVision CTX series explosive detection  systems.  “Smart Hands” training will  include basic maintenance; first call response and technical support-guided  repairs.  Such “Smart Hands” dispatch  will be at InVision’s request.  The  training will occur at InVision’s factory, and Purchaser will bear all travel  and related expenses for its technicians.                                                                                                                                                                                                  |   | TBD                 |   | TBD                   |   |
|    |   | •     Data Reporting.  InVision will report data to Purchaser’s designated service  managers and to the Boeing Call Center regarding applicable to the KPMs.  InVision will report data on InVision CTX  series explosive detection systems, whether covered under warranty or out-of-warranty,  to Boeing/Purchaser regarding reliability, maintainability, availability,  service calls and actions taken in support of the contracts Key Performance  Metrics (KPM’s), InVision will provide the data needed to populate the Boeing  CMMS system.  The needed data for  Boeing/Purchaser is: Job/Ticket Number, Confirmation of unit part number and  serial number, time call received, time technician arrived to service unit,  equipment elapsed time indicator reading (if |   |                |   |                  |   |

 

2

----

 
| **Qty** |   | **Product  Description**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   | **Unit Price  $US** |   | **Total  Price  $US** |   |
|---------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------|--------|-----------------------|--------|
|    |   | applicable), summary description of  problem/malfunction, summary description of action(s) taken, identification  of part(s) replaced (part number,  name, serial number, qty), time expended awaiting parts, time work order  complete.  This data is to be provided  within thirty (30) days of work order completion. Reports will be submitted  in InVision’s format.                                                                                                                                                                                                                                                             |   |                |   |                  |   |
|    |   | Reports  can include real-time or batch data sharing, depending on Purchaser’s and  Boeing’s software (InVision uses Clientele software).  Purchaser to bear the costs to implement  the data sharing functions on Purchaser’s and Boeing’s software.  The data will be used to develop targets  for availability, reliability and maintainability to be incorporated in future  agreements.                                                                                                                                                                                                                      |   |                |   |                  |   |
|    |   | •    Sustaining Engineering.   InVision will perform sustaining engineering to develop software  upgrades for maintenance and “bug fixes.”   New features and new hardware are not part of this Agreement.  (See paragraph SC-5(b)).                                                                                                                                                                                                                                                                                                                                                               |   |                |   |                  |   |
|    |   | •     **Non-Competition.**  [***].                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |   |                |   |                  |   |
|    |   | [***]  The foregoing notwithstanding, it is  expressly understood and agreed between the parties that Purchaser, through  its employees, agents and subcontractors, may continue to fulfill their  obligations under contract with the TSA or subcontract (direct or indirect)  with Boeing for the installation and maintenance of competing EDS products.                                                                                                                                                                                                                                                                                |   |                |   |                  |   |
|    |   | Purchaser  will develop, implement, maintain and use commercially appropriate  administrative, technical and physical safeguards, to preserve the integrity  and confidentiality of and to prevent non-permitted or violating use or  disclosure of InVision Confidential Information received by Purchaser.                                                                                                                                                                                                                                                                                                                                    |   |                |   |                  |   |
|    |   | Purchaser  agrees that in the event of a breach or threatened breach of the terms of  this Agreement, InVision shall be entitled to an injunction in addition to  any other legal or equitable relief including money damages.  The parties acknowledge that InVision  Confidential Information is valuable and unique and that disclosure in  violation of this Agreement will result in irreparable injury to InVision.                                                                                                                                                                                                                  |   |                |   |                  |   |
|    |   | Confidentiality Exclusion:  Notwithstanding the foregoing, the parties  hereby agree that Purchaser may be required under it’s upper tier agreement  to provide and /or disclose InVision’s Confidential Information to Siemens  Dematic, Boeing and/or TSA.  The  parties further agree that such disclosure and/or release of Confidential  Information shall not be deemed a violation of this Agreement provided such  disclosure is made only to the extent as required by Purchaser’s upper tier  agreement and Purchaser provides InVision with written notice of such  disclosure of Confidential Information. |   |                |   |                  |   |
|    |   | **•**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |   |                |   |                  |   |

 

3

----

 
| **Qty** |   | **Product Description**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   | **Unit Price  $US** |   | **Total  Price  $US**                                                    |   |
|---------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------|--------|--------------------------------------------------------------------------|--------|
|    |   | •    Parts Logistics.  During the first year of the Agreement,  InVision will manage all parts logistics and will disclose to Purchaser  Confidential Information related to parts usage.  InVision shall have the right to delete the management of parts logistics beginning on  January 1, 2004.  The  price to Purchaser for the Comprehensive Support Plan each year beginning in  2004 will be reduced as a result of InVision not purchasing, storing and  delivering the parts, as mutually agreed by InVision and the Purchaser before  each year. |   |                |   |                                                                     |   |
|    |   | **Total  Price**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |   |                |   | **Approximately**                                                        |   |
|    |   | (Total price shown for  the first year is an estimate based on comprehensive support plan with  extended hours for all previously deployed systems plus extended hours on all  warranty systems.  Total price shown  for future years is an estimate based on comprehensive support plan with  extended hours for all systems.   Actual prices will be based on the number of units actually deployed.)                                                                                                                                                                                   |   |                |   | **$[***] First  Year,  $[***] plus  price  escalation in  Future Years** |   |

 

ThisAgreement between InVision Technologies, Inc. (“InVision”) and the Purchasernamed above (the “Purchaser”) consists of this Support and MaintenanceAgreement, the attached Standard Conditions and General Conditions and theattached Exhibits (“this Agreement”). This Agreement is the entire and integrated agreement between theparties, reflects the entire understanding of matters related hereto andsupersedes all prior negotiations, representations and agreements, whetherwritten or oral.

 

 
| **Agreed and Accepted by:**     |
|---------------------------------|
|                            |   |
| **InVision Technologies, Inc.** | **Purchaser:   Siemens Explosive-Detection Field Services, LLC.** |
|                            |   |
|                            |   |
| By:                             | /s/ David Pillor |   | By: | /s/ Noe G. Bermudez |   |
| Title:                          | SVP |   | Title: | Associate Counsel |   |
| Date:                           | 24 Jan 03 |   | Date: | January 24, 2003 |   |

 

4

----

 

**STANDARDCONDITIONS(Support and Maintenance)**

 

**SC-1       Order of Precedence.**  Unless otherwise provided in this Agreement,in case of conflicts between provisions of this Agreement,

a)     the Standard Conditions shall prevail overthe General Conditions;

b)    the Support and Maintenance Agreement shallprevail over the Standard Conditions; and

c)     duly executed addenda (if any) shallprevail over the Support and Maintenance Agreement.

 

**SC-2       Covered Products. **This Agreement applies toall InVision CTX series explosive detection systems that are owned or operatedby the TSA (“the Products”).  InVisionhas listed in Exhibit 2 the serial numbers and locations of the Productsknown to InVision at the date of this Agreement.  InVision and Purchaser shall notify each other and modify thisAgreement, using the form of the Modification attached to this Agreement, ofany addition to or change in the location of covered Products.  Any resale or removal to a new locationwithout written notification to and consent by InVision may result in theautomatic termination of coverage for that particular system.

 

**SC-3       Term.**  InVision’s maintenance and repairobligations under this Agreement will commence on the Beginning Date stated inthe Support and Maintenance Agreement, and will continue for the Length of Termstated in the Support and Maintenance Agreement.

 

**SC-4       Maintenance and Parts.** As used in this Agreement, maintenance,service and parts are defined as follows:

 

a)     **“Operator Maintenance”** means items that aremaintained by the Operator per InVision’s Operator Training Manual.  Operator Maintenance includes daily systemchecks using software tools, and daily and weekly visual inspections, perInVision’s published maintenance schedule, which is subject to change.  Operator Maintenance also includes systemre-starts and fault re-sets using software tools.

 

b)    **“Preventive Maintenance”** means items thatare performed monthly or quarterly per InVision’s published maintenanceschedule.  Preventive Maintenanceincludes mechanical, electrical and software checks, testing and minoradjustments to ensure continued operation within InVision’s designspecifications.  Monthly maintenanceincludes the inspection, cleaning and adjustment of items subject to wear.  Quarterly maintenance includes theinspection of major systems.  InVision’spreventive maintenance schedules are subject to change without notice.

 

c)     **“Response Maintenance”** means the firstresponse to an Operator’s request for assistance or repair.  Response Maintenance includes correctingbasic problems such as jammed bags, blocked sensors and software glitches, andidentifying the need for repairs. Response Maintenance also includes adjustments and replacement of partssubject to normal wear, diagnosis and replacement of fuses and lamps, anddiagnosis using soft key accessible menus and modem remote diagnostic support.

 

d)    **“Remedial Service”** means service beyondResponse Maintenance.  Remedial Serviceincludes diagnosis using the keyboard and diagnostics software, adjustment ofgear ratio, belt tension and standby filament current, and replacement of majorassemblies.  Remedial Service alsoincludes the repair of any defective part, or the removal of a defective partand installation of a replacement part. Remedial Service includes testing, calibration and adjustment of theProducts as necessitated by a repair or replacement.

 

e)     **“Defective Part”** means any part thatInVision determines is not functioning per specifications and is notrepairable.  Defective part does notinclude any **consumable**.

 

5

----

 

f)     **“Consumable”** means any part that isconsumed or subject to wear during normal operation, including air filters,conveyor belts, LPA side belts, leaded curtains and recording media (datacartridges). “Consumable” does not include printer supplies (ink cartridges,paper, etc.).

 

**SC-5       Scope of Support Plan.**  During the term of this Agreement, InVisionwill provide the support as defined below:

 

a)     InVision will provide unlimited telephonetechnical support and modem remote system diagnostic support.

 

b)    InVision will perform software upgrades formaintenance and “bug fixes.”  Upgradesfor new features or which require hardware modifications are not included inthis Agreement.

 

c)     InVision will not perform OperatorMaintenance.

 

d)    Unless otherwise stated in this Agreement,InVision’s **covered hours** are 0800 to 1700 (8:00 a.m. to5:00 p.m.), Monday through Friday, local time, except for local holidaysas stated in Exhibit 1.** **Allother hours and all local holidays are **other hours**.

 

e)     The **KeyPerformance Metrics** are:  

 
| **KPM No** |   | **KPM TITLE**                      |   | **Description**                              |   | **How it is Measured**                                       |   | **Acceptable  Standard**              |
|------------|--------|------------------------------------|--------|----------------------------------------------|--------|--------------------------------------------------------------|--------|---------------------------------------|
| KPM 1      |   | Operational availability           |   | Length of time deployed  EDS are operational |   | Percentage of time EDS  are unserviceable on a monthly basis |   | [***]%                                |
|       |   |                               |   |                                         |   |                                                         |   |                                  |
| KPM 2      |   | Mean Time To Repair an  EDS Defect |   | Length of time taken to  repair EDS defect   |   | Calculate monthly mean  time to repair defects               |   | [***] hours                           |
|       |   |                               |   |                                         |   |                                                         |   |                                  |
| KPM 3      |   | Mean Time Between  Failures of EDS |   | Length of time between  EDS failures         |   | Calculate monthly mean  time between failures                |   | [***] hours of  operation No increase |

 

The calculation ofthe time EDS are unserviceable shall not include baggage handling systemdowntime, operator misuse and other causes of system downtime that are beyondInVision’s control.  The calculation ofmean time to repair shall not include the time waiting for parts if InVisionparts logistics has been deleted from this Agreement.

 

f)     InVision’s billable **rate** as of the date of thisAgreement is as stated in Exhibit 1. InVision’s billable rate is subject to an increase for each subsequentyear based on the cost escalation formula stated in the Special Conditions ofthe Support and Maintenance Agreement.

 

g)    Under the **“Comprehensive Support Plan” with“Extended Hours Support,”**

1)     InVisionwill perform all Response Maintenance 24 hours per day, 7 days per week.

2)     InVisionwill perform all Preventive Maintenance during off-peak hours or other mutuallyagreed hours as determined locally.

3)     InVisionwill perform all Remedial Service 24 hours per day 7 days per week.

4)     Unless InVision has deleted the managementof parts logistics, InVision will provide a replacement for any Defective Partand authorize return of the Defective Part. The replacement part may be a new part or a rebuilt part.

5)     Unless InVision has deleted the managementof parts logistics, InVision will supply Consumables as needed during scheduledmaintenance.  Printer supplies are notthe responsibility of InVision.

 

6

----

 

6)     InVisionwill perform support necessary to meet the acceptable standards of the KeyPerformance Metrics.

 

**SC-6       Excluded Services.**

 

a)     **Exclusions.**  InVision shall have no obligation to perform maintenance orremedial service, or to provide replacement parts, in connection with:

1)     repairs or maintenance of electrical workexternal to the Products or of accessories, attachments, supplies, or otherdevices not furnished by InVision;

2)     damage or failure caused by any intentionalor negligent act by Purchaser’s and/or owner’s employees, agents or invitees orby any other party not under InVision’s control;

3)     damage or failure caused by attempts torepair or service the Products by persons other than InVision employees oragents without InVision’s prior written consent

4)     damage or failure caused by the misuse ofthe Products including but not limited to the use of accessories, attachments,supplies, or other devices not provided by InVision or the use of the Productsfor any application or in any manner not specified by InVision; or

5)     damage or failure caused by electricalconditions external to the Products including power failures and power surges.

 

b)    Notwithstanding the foregoing exclusions, atPurchaser’s request InVision will provide replacement parts for the foregoingexcluded causes at InVision’s standard prices, plus freight and taxes. InVisionwill perform service in connection with the foregoing excluded causes atInVision’s billable rate.

 

**SC-7       Warranty.**

 

a)     All maintenance and remedial serviceperformed by InVision under this Agreement will be done in accordance with  InVision’s specifications.

 

b)    **Limited Warranty.**  InVision warrants that (1) the maintenance and remedial servicesprovided under this Agreement will be performed in accordance with InVision’sspecifications, and (2) for a period of thirty (30) days after the expirationor other termination of this Agreement any replacement parts provided byInVision under this Agreement will be free from defects in materials andworkmanship.

 

c)     **Exclusive Remedy.** If the maintenance or remedial serviceprovided by InVision are not as warranted above, InVision will, at Purchaser’srequest, repeat such services to the extent such defective services have anadverse impact upon the condition or usability of the Products.  If any replacement part provided under thisAgreement is defective in material or workmanship within thirty (30) days ofthe expiration or other termination of this Agreement, InVision will repair orreplace it on the same terms as the original replacement in accordance withStandard Conditions SC-4 and SC-5.  THEREMEDY PROVIDED HEREIN IS THE SOLE AND EXCLUSIVE REMEDY OF PURCHASER FOR ANYBREACH OF THE LIMITED WARRANTY PROVIDED ABOVE.

 

d)    **Disclaimer.**  THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDINGTITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,WHICH EXTEND BEYOND THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT.

 

**SC-8               Limitation of Liability.**  InVision’s total liability under thisAgreement shall be limited to general money damages in an amount not to exceedin the aggregate the value of this Agreement. This limitation of liability willapply regardless of the form of action, whether in contract or tort (includingnegligence) or based on a warranty.

 

**SC-9               Payment.**

 

**a)     PaymentTerms.**  Purchasershall pay the Total Price stated in the Support and Maintenance Agreement, plusTaxes (in accordance with General Conditions GC-3 Taxes and Duties), accordingto the

 

7

----

 

terms stated in the Support and Maintenance Agreement.  Credit terms are available upon InVision’sapproval.  Purchaser shall pay the pricefor any parts, maintenance or services that are not included in the TotalPrice, plus Taxes, within thirty days of receipt of an invoice therefor.  Any extension of payment period shallrequire prior written approval of InVision. Payments that are thirty (30) days or more past due shall bear interestat the rate for late payments of US government contracts .

 

**b)     PaymentMethod. **All paymentsrequired by this Agreement shall be made in United States dollars.  Purchaser shall, at its sole expense,institute and complete any necessary currency exchange transactions orgovernment proceedings for payment in United States dollars.  Payment shall be by cash, wire transfer orother same-day available funds.  UponInVision’s approval, payment may be made by check, on credit terms or by sightdraft against an irrevocable letter of credit.

 

**SC-10            Insurance.**  During the Term of this Agreement, InVisionwill maintain insurance as listed in Exhibit 3.

 

**SC-11            Termination.**

Notwithstandinganything else contained herein, this Agreement may be terminated:

a)     ByInVision upon Purchaser’s failure to pay InVision beyond 90 days when paymentis due to InVision hereunder, or

b)    Byeither party due to the other party’s bankruptcy, insolvency or receivership,or

c)     ByPurchaser upon the termination of Purchaser’s contract with Boeing and/or theTSA for the convenience of the government or for default, subject to the FARprovisions stated in Exhibit 4, or

 

d)    ByPurchaser if InVision is terminated for default under the provisions of thisAgreement as determined by TSA or becomes an unacceptable service provider asdetermined by TSA or is barred from governmental projects by any governmentalbody or agency.

 

8

----

 

**GENERAL CONDITIONS(Sales and Support)**

 

**GC-1           Acceptance of Agreement.**  This Agreement shall become a valid bindingcontract when executed by a duly authorized representative of each party.

 

**GC-2           Rejection of Other Terms.**  This Agreement and the terms specified hereinshall control over any conflicting provisions of any Purchaser purchase order,release, acceptance or other business form, and all such conflicting terms areexpressly rejected by InVision and waived by Purchaser.

 

**GC-3           Taxes and Duties.**Unlessstated otherwise in this Agreement, prices do not include any excise, sales,transfer, use, value-added or like taxes, and any other duties, tariffs,assessments or government impositions of any nature whatsoever which are leviedor based upon the payments made hereunder or arise in connection with theAgreement (“Taxes”).  Taxes do notinclude any taxes on the net profits of InVision.  InVision will add such Taxes to the price and Purchaser willreimburse InVision for such Taxes in accordance with the Payment terms, orwithin ten (10) days of InVision’s payment thereof if such Taxes are levied orcollected after final payment.

 

**GC-4           Proprietary Information.**

 

a)        **Definitions.**For purposes of this Agreement, “Confidential Information” means allinformation received from InVision, in whatever form transmitted, relating tothe automated explosive detection system’s (EDS) business plans, operations,design, training, systems and products, whether currently manufactured or indevelopment which is identified as being confidential or proprietary in natureor would reasonably be considered confidential or proprietary by its nature orwould give or increase the advantage of InVision’s competitors over InVision ordiminish InVision’s advantage over its competitors.  InVision identifies and Purchaser acknowledges that InVision’sdata related to KPMs and parts logistics are proprietary and ConfidentialInformation under this Agreement.

 

**b)        Exceptions.**   ConfidentialInformation shall not include any information of InVision that: (i) is alreadyknown to Purchaser at the time of its disclosure; (ii) is or becomes publiclyknown through no wrongful act of Purchaser; (iii) is received from a thirdparty with the right to disclose it and who provides it without restriction asto use or disclosure; (iv) is lawfully required to be disclosed, provided that,before making such of disclosure, Purchaser shall Immediately give InVisionwritten notice and cooperate with InVision to assure confidential           handling of such information.

 

**c)        Ownership, Return and Destruction.**  AllConfidential Information, in whatever form, including conceptual ideaspresented during any discussions between the parties, shall be and remainproperty of InVision. All tangible and electronic Confidential Information shallbe returned to InVision promptly following the expiration or termination ofthis Agreement or during the term of this Agreement promptly upon writtenrequest and shall not be retained in any form by Purchaser.  Purchaser understands that its right to possessand use the Confidential Information is contingent upon Purchaser’s complyingwith the terms of this Agreement. Purchaser agrees that the materials are not to be reproduced and copiedfor any reason without the prior written consent of InVision.

 

**d)        Term and Use. **Duringthe term of this Agreement, and for a period of three (3) years thereafter,Purchaser shall not disclose any Confidential Information to any person orentity, except employees of Purchsaer who have a need to know and who have beeninformed of Purchaser’s obligations under this Agreement. Purchaser understandsthat the Confidential Information is for use only by employees, specificallywill not be revealed, shown, or in any manner, disclosed to employees orrepresentatives of InVision’s competitors in the EDS industry.  Purchaser guarantees the ConfidentialInformation shall not be given or sold to any person or entity outsidePurchaser’s organization and that the Confidential Information will not be usedfor the manufacture of the items for which the Confidential

 

9

----

 

Information has been provided.Purchaser shall use the same degree ofcare to avoid disclosure of Confidential Information as Purchaser uses for itsown confidential information.

 

**e)        Specific Proprietary Materials.** Purchaser will obtain from InVision data related to KPMs and partslogistics, and other items listed and information identified as ConfidentialInformation (as listed on Exhibit A) under this Agreement.

 

**f)         Remedies.** Purchaser agrees that in the event of a breach or threatened breach ofthe terms of Section GC-4 of this Agreement, InVision shall be entitled to aninjunction in addition to any other legal or equitable relief including moneydamages. The parties acknowledge that Confidential Information is valuable andunique and that disclosure will result in irreparable injury to InVision.

 

**g)       **This Agreement and the disclosure and receiptof Confidential Information do not confer any right in the Confidential Information,by license or otherwise.

 

**GC-5           Legend Retention.**  Purchaser will not remove or destroy anycopyright, logo, trademark, trade name, proprietary markings or confidentialitylegends placed on or in the Products, any containers, related materials or documentation.  Purchaser will comply with instructionsplaced on in the Products, any containers, related materials or documentation.

 

**GC-6           Export.**  Purchaser acknowledges that the Products,including the Threat Resolution Protocol, are subject to restrictions onexport. Purchaser will fully comply with the relevant export administration andcontrol laws and regulations of the United States of America and applicableforeign countries to ensure that the Products are not directly or indirectlyexported in violation of the United States law or imported in violation of theapplicable foreign law.

 

**GC-7           Permits. **InVision will not obtain and pay for allpermits for the importation, installation and operation of the Products and anyparts for the Products.

 

**GC-8           Software Restrictions.**   Purchaser receives no license to thesoftware portion of the Products. Purchaser shall not reproduce, decompile or disassemble all or anyportion of the software portion of the Products or sub-license, distribute ordisclose all or any portion of the software to any third party withoutInVision’s express prior written consent.

 

**GC-9           Disputes.**

 

**a)        Good Faith Negotiations.**  If any dispute arises under this Agreement,the aggrieved party shall give written notice of the dispute to the otherparty.  The parties shall seek toresolve the dispute by promptly negotiating with each other in good faith.  The negotiation shall be conducted byrepresentatives authorized to bind the respective party by his or herdecisions.

 

**b)        Binding Arbitration.**  If the parties do not reach a solutionwithin a period of 60 days pursuant to GC-9(a), then, upon notice by eitherparty to the other, all disputes, claims, questions, or differences exceptdisputes with respect to Confidential Information shall be finally settled bybinding arbitration administered by the American Arbitration Association inaccordance with the provisions of its Commercial Arbitration Rules.  The parties agree that (i) claims under $1million, exclusive of interest and attorneys’ fees, shall be heard anddetermined by one arbitrator selected by the American Arbitration Association,and (ii) claims of $1 million or more, exclusive of interest and attorneys’fees, shall be heard and determined by three arbitrators selected as follows:within 15 days after the commencement of arbitration, each party shall selectone person to act as arbitrator and the two selected shall select a thirdarbitrator within 10 days of their appointment. If the arbitrators selected bythe parties are unable or fail to agree upon the third arbitrator, the thirdarbitrator shall be selected by the American Arbitration Association.

 

c)        Prior to the commencement of hearings, each of thearbitrators appointed shall provide an oath or undertaking of impartiality.

 

10

----

 

d)        Judgment on the award rendered by the arbitrator(s) may beentered in any court having jurisdiction thereof.

 

**e)       **Unless otherwise agreed to in writing theParties shall continue performance during the resolution of a dispute underthis Section.

 

**f)         Legal Fees.**  In any dispute arising out of thisAgreement, the prevailing party shall be entitled to its reasonable attorneys’fees and costs, including expert witness fees.

 

**g)        Equitable Relief.**  Neither party shall be precluded hereby fromsecuring equitable remedies in courts of any jurisdiction, including, but notlimited to, temporary restraining orders and preliminary injunctions to protectits rights and interests but such remedies shall not be sought as a means toavoid or stay mediation or arbitration.

 

**GC-10         Exclusion of Damages. ****IN NO EVENT SHALL EITHER PARTY BELIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL,PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING COMMERCIAL LOSS, LOSS OF USE, LOSTREVENUES, LOST SAVINGS, OR LOST PROFITS, EVEN IF EITHER PARTY HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH DAMAGES.  THEPARTIES EXPRESSLY AGREE THAT THE PRODUCTS ARE NOT CONSUMER GOODS.**

 

**GC-11         Assignment.**  Purchaser’s rights, duties and obligations arisingunder this Agreement are not assignable or delegable without the prior writtenconsent of InVision.  Any attempt toassign or delegate any rights, duties or obligations under this Agreementwithout such consent or notice will be null and void.  Except as otherwise set forth above, the Agreement shall bebinding upon and inure to the benefit of the successors and assigns of theparties hereto.

 

**GC-12         Waiver.**  The failure of a party to exercise anyright, power or remedy under this Agreement shall not be deemed a waiver ofsuch right, power or remedy, and shall not modify the terms of thisAgreement  or waive any similar default.

 

**GC-13         Enforceability.**  If any provision of this Agreement is heldto be invalid or unenforceable, the remaining provisions shall remain in fullforce and effect.  The parties agree toreplace any invalid provision with a valid provision that most closelyapproximates the intent and economic effect of the invalid provision.

 

**GC-14         Modification.**  This Agreement can not be modified except bya writing executed by a duly authorized representative of each party.  No modification, amendment, addition to orwaiver of any provision of this Agreement shall be effective unless signed inwriting by authorized representatives of each party.

 

**GC-15         Excused Performance.**  InVision shall not be responsible for delaysor failures to perform caused by events beyond its reasonable control,including without limitation acts of God, fire, floods, earthquakes or othernatural disasters, acts or omissions of civil or military authority, governmentorders, labor disputes, strikes or other industrial disturbances, riots, wars,acts of the public enemy, shortage of materials or embargoes.

 

**GC-16         Governing Law.**  **THE AGREEMENT WILL BE CONSTRUED AND INTERPRETED IN ACCORDANCEWITH THE LAWS OF THE STATE OF****NEW YORK WITHOUT APPLICATION OF ITS CHOICE-OF-LAWPRINCIPLES.**

 

**GC-17         Headings.**  Headings used in this Agreement are forreference purposes only and shall not be considered to interpret thisAgreement.

 

11

----

 

**GC-18         Notices.**  All notices required under this Agreementshall be given in writing to the party at the address stated in this Agreement,unless notice of change shall have been given to the other party in accordancewith this provision.  Notice shall bedeemed to have been given (a) upon receipt, if by personal delivery, (b) whensent, if sent by confirmed telecopy, or (c) five (5) days after deposit in the mail, if sent by certified orregistered mail, with postage prepaid, and return receipt requested.

 

**GC-19         Survival. **Upon the termination or expiration of thisAgreement, only those obligations which are still executory on both sides willbe discharged.  All other obligationsand rights (including payment for goods and services provided), and allremedies for prior breaches of this Agreement, shall survive.

 

12

----

 

**EXHIBIT 1**

 

## **InVision’s Holidays (included in Other Hours, not inCovered Hours) - US (with dates for year 2003)**

 
| New Year’s Day         |   | January 1   |
|-----------------------------|--------|-------------|
| President’s Day        |   | February 17 |
| Memorial Day                |   | May 26      |
| Independence Day            |   | July 4      |
| Labor Day                   |   | September 1 |
| Thanksgiving Day            |   | November 27 |
| Day following  Thanksgiving |   | November 28 |
| Christmas Day               |   | December 25 |

** **

** **

**InVision’s Covered Hours (without Extended Hours)**

 

Monday through Friday, 0800 to 1700 (8:00 a.m. to 5:00p.m.)

All times are Local Time – per the time zone in whichthe Covered Product is located.

 

 

**InVision’s Billable Rates (First Year)**

 
| Normal Hourly  Rate:                                         |                |
|--------------------------------------------------------------|---------------------|
| US  $[***] per hour                                          |                |
|                                                         |                |
| Premium  Hourly Rate:                                        |                |
| Weekdays  before 0800 (8:00 a.m.) and after 1700 (5:00 p.m.) | US $[***] per  hour |
| Weekends  and Holidays                                       | US $[***] per  hour |

 

13

----

 

**EXHIBIT2**

 

**COVERED PRODUCTS**

 

***NEED UPDATED LIST FROM INVISION***

 
| **Initial  Systems** |   |
|----------------------|--------|
| **Serial No.**       |   | **Location** |   |
|                 |   |   | ** ** |
|                 |   |   |   |
|                 |   |   |   |

 

 
| **Added  Systems** |   |
|--------------------|--------|
| **Serial No.**     |   | **Location** |   | **Warranty  Expiration Date** |   |
|               |   |   | ** ** |   | ** ** |
|               |   |   |   |   |   |
|               |   |   |   |   |   |

 

14

----

 

**EXHIBIT3**

 

**INSURANCE**

 

InVision will maintaininsurance covering its operations on an occurrence basis as follows:

 
|                                        | **Limit Required** |
|---------------------------------------------|--------------------|
|                                        |               |
| Worker’s  Compensation                 | Statutory          |
|                                        |               |
| Employer’s  Liability                  | $[***]             |
|                                        |               |
| Comprehensive  General Liability Including: |               |
| Products/Completed  Operations              |               |
| Blanket  Contractual                        |               |
| Personal  Injury                            |               |
| Broad  Form Property Damage                 |               |
|                                        |               |
| Bodily  Injury                              | $[***]             |
| Property  Damage                            | $[***]             |
| or  Single Limit                            | $[***]             |
|                                        |               |
| Automobile  Liability                       |               |
|                                        |               |
| Bodily  Injury                              | $[***]             |
| Property  Damage                            | $[***]             |
| or  Single Limit                            | $[***]             |
|                                        |               |
| Excess  Umbrella Liability                  | $[***]             |
|                                        |               |
| Fidelity  coverage insuring loss(es) due    |               |
| To  dishonest acts of InVision or its       |               |
| Employees  with the following limits        | $[***]             |

 

**Certificates showing that the above insurance coverages arein effect shall be furnished to Purchaser.**  Additional requirements regarding InsuranceCertificates are as follows:

 

a.               The name of theinsured shown on certificate(s) must agree with name of InVision.

 

b.              Certificate(s) mustindicate the insurance provided is on an occurrence basis and the coverageapplies to location where Work is to be performed.

 

c.               InVision’s brokerwill  endeavor to notify Purchaser notless than 30 days before the effective date of any changes in the policy.

 

d.              Certificate(s) willname  Purchaser as additional insureds,with appropriate cross liability endorsements added to policy.

 

e.               Certificate(s) inproper form must be in possession of Purchaser not less than 10 days prior tostarting the Work and shall remain in effect during performance of theWork.  Purchaser has the right to rejectany certificate if it does not meet the requirements set forth in this Exhibit.

 

15

----

 

f.                 The certificatewill state that said insurance is primary coverage and non-contributing withrespect to the coverage afforded the additional insureds.

 

g.              None of therequirements contained herein as to types, limits and Purchaser’s approval ofinsurance coverage to be maintained by InVision is intended to and shall not inany manner limit or qualify the liabilities and obligations assumed by InVisionunder this Subcontract Agreement.

 

h.              Purchaser is notmaintaining any insurance on behalf of InVision covering loss or damage to anyproperty of InVision.  Purchaser shallnot be liable or responsible for any loss or damage to the Work, except to theextent that such loss or damage results directly from Purchaser’snegligence.  InVision shall beresponsible for the correction or restoration of any such loss or damage to theWork resulting from performance by InVision, it’s employees, agents orrepresentative of the Work herein.

 

16

----

 

**EXHIBIT4**

 

**FAR PROVISION REGARDINGTERMINATION**

 

**12.403Termination.**

 

(a) *General*. The clause at52.212-4 permits the Government to terminate a contract for commercial itemseither for the convenience of the Government or for cause. However, theparagraphs in 52.212-4 entitled “Termination for the Government’s Convenience”and “Termination for Cause” contain concepts which differ from those containedin the termination clauses prescribed in Part 49. Consequently, therequirements of Part 49 do not apply when terminating contracts for commercialitems and contracting officers shall follow the procedures in this section.Contracting officers may continue to use Part 49 as guidance to the extent thatPart 49 does not conflict with this section and the language of the terminationparagraphs in 52.212-4.

(b) *Policy.*The contractingofficer should exercise the Government’s right to terminate a contract forcommercial items either for convenience or for cause only when such atermination would be in the best interests of the Government. The contractingofficer should consult with counsel prior to terminating for cause.

(c) *Termination for cause*.

(1)The paragraph in 52.212-4 entitled “Excusable Delay” requires contractorsnotify the contracting officer as soon as possible after commencement of anyexcusable delay. In most situations, this requirement should eliminate the needfor a show cause notice prior to terminating a contract. The contractingofficer shall send a cure notice prior to terminating a contract for a reasonother than late delivery.

(2)The Government’s rights after a termination for cause shall include all theremedies available to any buyer in the marketplace. The Government’s preferredremedy will be to acquire similar items from another contractor and to chargethe defaulted contractor with any excess reprocurement costs together with anyincidental or consequential damages incurred because of the termination.

(3)When a termination for cause is appropriate, the contracting officer shall sendthe contractor a written notification regarding the termination. At a minimum,this notification shall—

(i)Indicate the contract is terminated for cause;

(ii)Specify the reasons for the termination;

(iii)Indicate which remedies the Government intends to seek or provide a date bywhich the Government will inform the contractor of the remedy; and

(iv)State that the notice constitutes a final decision of the contracting officerand that the contractor has the right to appeal under the Disputes clause (see33.211).

(d) *Termination for the Government’sconvenience*.

(1)When the contracting officer terminates a contract for commercial items for theGovernment’s convenience, the contractor shall be paid—

(i)The percentage of the contract price reflecting the percentage of the workperformed prior to the notice of the termination, and

(ii)Any charges the contractor can demonstrate directly resulted from thetermination. The contractor may demonstrate such charges using its standardrecord keeping system and is not required to comply with the cost accountingstandards or the contract cost principles in Part 31. The Government does nothave any right to audit the contractor’s records solely because of thetermination for convenience.

(2)Generally, the parties should mutually agree upon the requirements of thetermination proposal. The parties must balance the Government’s need to obtainsufficient documentation to support payment to the contractor against the goalof having a simple and expeditious settlement.

 

17

----

 

**MODIFICATIONNO.   **

**ToSupport and Maintenance Agreement No. SMA-021119-G**

** **

Revise Exhibit 2, CoveredSystems, to:

 

Add Serial No(s).              at Site                   with a Warranty ExpirationDate of            .

 

This system is added atthe first year unit price of  $             / year.

 

All other provisions ofthe Agreement remain unmodified.

 

 
| **Agreed and Accepted by:**     |
|---------------------------------|
|                            |
| **InVision Technologies, Inc.** | **Purchaser:   Siemens Explosive-Detection  Field Services, LLC.** |
|                            |   |
| By:                             |   |   | By: |   |   |
| Title:                          |   |   | Title: |   |   |
| Date:                           |   |   | Date: |   |   |

 

18

----

 

**ExhibitA**

 

**SpecificProprietary Materials Identified as Confidential Information**

 

1)     The dataneeded to populate the Boeing CMMS system for Boeing and Purchaser to track theKey Performance Metrics (KPM’s):

 
| a)     |   | Job/Ticket Number                                                                |
|--------|--------|----------------------------------------------------------------------------------|
| b)     |   | Confirmation of unit  part number and serial number                              |
| c)     |   | Time called received                                                             |
| d)     |   | Time technician arrived  to service unit                                         |
| e)     |   | Equipment elapsed time  indicator reading (if applicable0                        |
| f)     |   | Summary description of  problem/malfunction                                      |
| g)     |   | Summary description of  action(s) taken                                          |
| h)     |   | Identification of  part(s) replaced (part number, name, serial number, quantity) |
| i)     |   | Time expended awaiting  parts                                                    |
| j)     |   | Time work order  complete                                                        |
|   |   |                                                                             |

2)     Calculations,summaries and other information derived from the data listed in Item 1,including but not limited to:
| a) |   | Operational  availability of InVision EDS   |
|----|--------|---------------------------------------------|
| b) |   | Mean Time To Repair an  InVision EDS Defect |
| c) |   | Mean Time Between  Failures of InVision EDS |

 

----

***Confidentialtreatment requested.

 

19

----