EXHIBIT 10.4
TEAMING
&
NON-DISCLOSURE AGREEMENT
For the
Retail Kiosk Delivery System - Power Photo project
This TEAMING AGREEMENT is made as of the 11th day of November, l999,
amongst the following companies:
Company Address Primary Contact Telephone
Facsimile
E-Mail
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Sybase Canada Limited One Robert Speck Parkway Ron Allen 905 273-8562
Mississauga, Ontario Senior Practice Manager 905 273-8580
Canada L4Z 3M3 ron.allen@sybase.com
Advanced Kiosk 181 Whitehall Drive Don Huppe 905 415-5120
Services, Inc. Markham, Ontario President
Canada L3R 9T1 dhuppe@pathcom.com
Power Photo Kiosk Inc. 181 Whitehall Drive Ron Thompson 905 948-9600
Markham, Ontario President 905 948-8377
Canada L3R 9T1 ront@powerphoto.net
Integrated Kiosks Inc. 397 Humberline Drive Mike Parker 416 675-3953
Unit # 7, President 416 675-5865
Rexdale, Ontario kiosks@msn.com
Canada M9W 5T5
HEREINAFTER REFERRED TO AS THE "TEAMING PARTNERS".
Whereas, the Teaming Partners each posses, own or have rights to product
and/or service capabilities and capacities and/or hardware and/or software
technology with relevance specifically to the Retail Kiosk Delivery System -
Power Photo Project.
And further, the Teaming Partners intend on delivering the products and
services, awarded as a result of the collective Proposal to Advanced Kiosk
Services, Inc., collectively as a "Team".
Now, therefore, in consideration of the mutual promises and covenants
contained herein, the Teaming Partners agree as follows:
1. Definitions
1.1 "Agreement" means this Teaming Agreement, together with any Exhibits,
any other referenced documents and any Addenda attached hereto, duly
agreed and executed by each of the Teaming Partners.
1.2 "Teaming Partners" means those firms listed above as such and who's
authorized signing officers have executed this Agreement and each
Exhibit and each Addenda attached hereto.
1.3 "Team" means the collection of the Teaming Partners.
1.4 "Bid/Response/Proposal" are interchangeable and each means the total
and any part or component thereof the corporate, technical, product,
service and financial information and documentation offered by or
through the Team for the Power Photo Project to illustrate, detail or
otherwise state the capabilities and capacities, approach, product and
services that the Team will deploy, employ, assign and/or sell to
Advanced Kiosk Services, Inc.
2. Project Management
Each of the Teaming Partners agrees that the Project efforts will be led and
coordinated by Sybase Canada Limited personnel.
Further, each of the Teaming Partners agrees that any of the related efforts
required from any or any combination of the Teaming Partners will be led and
coordinated by Sybase Canada Limited personnel.
Sybase Canada Limited will use reasonable efforts to maintain continuity in the
personnel involved with leading and coordinating efforts throughout the
pre-award and post-award periods.
Sybase Canada Limited will provide the test and development environments, to be
located at it's Mississauga offices. Where necessary and effective, staff,
equipment, software, etc. will be made available by each Teaming Partner to be
employed at the offices of Sybase Canada Limited in Mississauga, Ontario.
3. Proposal Preparation & Submission & Thereafter, As Required
Each Teaming Partner will be responsible to supply any relevant and required
corporate, technical, product, service and financial information for the
individual Company's area (s) of participation.
Each Teaming Partner will be responsible for assessing their technical and
functional ability levels, and the associated costs of bringing to the
requirements, its own products and services. Furthermore, each Teaming Partner
will make the necessary personnel available to the lead/co-ordinator, Sybase
Canada Limited personnel for clarification, rework and additional information.
It is recognized that differences of opinion will occur as to the technical
requirements and therefore the resources needed to meet any given mandatory
requirement. In such an event, the lead/co-ordinator, Sybase Canada Limited
personnel will present the case to at least one- (1) other independent Teaming
Partner. The consulted Teaming Partner will determine the mitigation to be
pursued, i.e. time/scope/cost.
The lead/coordinator, Sybase Canada Limited personnel will obtain the written
approval of the individual Teaming Partner concerned and at least one- (1) other
of Advanced Kiosk Services, Inc., Power Photo Kiosk Inc. or Integrated Kiosks
Inc. before altering any costing or pricing information.
It is recognized that a contingency pricing factor will be considered whenever
the effort to satisfy a mandatory requirement involves more than a person week.
Any resulting individual contingency will not exceed twenty-five percent (25%)
of the value of the agreed work needed to meet the specific mandatory.
Given the agreement of each of the Teaming Partners, an overall Project
contingency factor may be employed to determine the final cost/price offered to
the end client.
Each Teaming Partner agrees that it will team ONLY with the group named as
parties to this Agreement collectively for preparation and submission, and in
the event of award the delivery of the specifically named Proposal and Project,
being the Retail Kiosk Delivery System - Power Photo Project.
Work towards the final solution will be done as per the Detailed Work Plan,
being a living and evolving document and initially to be agreed to on or about
November 11, 1999. The finalized and agreed to Detailed Work Plan will
constitute Appendix A to this Agreement.
4. Revenues from Award of Project
The Retail Kiosk Delivery System - Power Photo Project, having been won by the
Team, will result in the direct revenues for product and services for each
Teaming Partner's participation accruing to that particular Teaming Partner.
This is not meant to and will not preclude any sub-contracting between or
outside of the Teaming Partners.
5. Rights and Ownership's of Other Related Technology
Any rights and ownership's held by the parties to any intellectual property,
licenses, patents, trademarks, copyrights, registrations, etc. will remain as
these were prior to the execution of this Teaming Agreement.
Any intellectual property developed solely by an individual Teaming Partner
remains the property of that Teaming Partner and no rights or interest thereto
will be assigned to any of the other Teaming Partners collectively, or
individually.
6. Indemnification
The Teaming Partners agree to indemnify each other and to hold each other and
their respective directors, employees and agents harmless from all costs, loss,
liability and expense (including court costs and reasonable fees of attorneys
and expert witnesses) incurred as a result of any claims or demands brought
against or incurred by any other Teaming Partner or combination of Teaming
Partners or their respective directors, employees or agents, arising from or in
connection with any representations, warranties or guarantees made by the
individual Teaming Partner to any third parties concerning the product (s),
hardware and/or software and/or services which are inconsistent with or in
addition to those made by Teaming Partner responsible for the product (s) and/or
services, as per this Agreement.
Any representations made prior to the submission of the Proposal, during the
subsequent events leading to any award or after any award, during implementation
and delivery, will be made as a Team, specifically through if not by the lead
and coordinating Teaming Partner, Sybase Canada Limited personnel, in due
consultation with any Teaming Partner (s) directly and indirectly involved.
7. Use of Teaming Partners' Names
Any Teaming Partner can disclose to third parties the participants, Teaming
Partners who have agreed to and executed this Agreement, in the strict context,
not detail of this Agreement.
None of the Teaming Partners will use any other Teaming Partner's name or refer
to any other Teaming Partner in any press release, advertising or marketing
literature, without the prior written approval of the Teaming Partner who's name
is to be used.
8. Non-Disclosure
In the performance of any of a particular Teaming Partner's
responsibilities/obligations under this Agreement, employees of each Teaming
Partner may be exposed to confidential information and materials of the others.
Each Teaming Partner agrees for themselves and all of their employees (and
sub-contractors, if applicable) that such information will be kept confidential
and not disclosed to third parties.
Items will not be considered to be Confidential Information if:
(i) already available to the public;
(ii) independently developed by personnel o agents of one Teaming Partner
without access to the Confidential Information of the other;
(iii)already known to the recipient at the time of disclosure; or
(iv) produced in compliance with applicable law or a court order, provided
the receiving Teaming Partner first gives the disclosing Teaming
Partner reasonable notice of such law or order.
Each of the Teaming Partners agrees to keep as "Confidential" any confidential
information, perceived as material or otherwise, obtained by it or its employees
from or in regard to another Teaming Partner, its products or services.
9. Protection of Employees
Each Teaming Partner is prohibited, for the duration of this Agreement and for
twelve- (12) months afterwards, from hiring any other Teaming Partner's
employees who work on any tasks or activities associated with this Agreement,
without the prior written consent of the employing Teaming Partner.
10. Qualified Personnel
Each Teaming Partner warrants that any required services will be performed by
qualified personnel in a professional manner conforming to generally accepted
industry standards and practices.
11. Services Warranty & Limited Liability
EXCEPT AS OTHERWISE EXPRESSLY STATED IN ANY INDIVIDUAL TEAMING PARTNER'S
WARRANTIES OR DOCUMENTATION, NO EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT
TO THE SERVICES OR GOODS TO BE SUPPLIED BY ANY TEAMING PARTNER HEREUNDER,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
NONE OF THE TEAMING PARTNERS WARRANT THE RESULTS OF ANY SERVICES.
THE TOTAL LIABILITY, IF ANY, OF A TEAMING PARTNER INCLUDING BUT NOT LIMITED TO
LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OR FAILURE OF WARRANTY, OR
OTHERWISE, WILL NOT IN ANY EVENT EXCEED THE FEES ACCRUING TO THAT TEAMING
PARTNER UNDER THIS AGREEMENT.
NONE OF THE TEAMING PARTNERS BE LIABLE FOR LOSS OF PROFITS, LOSS OR INACCURACY
OF DATA, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, DUE OR
ACCRUED TO OR PRECIEVED TO BE ACCRUED TO OTHER PARTNERS, AS A RESULT OF OR DUE
TO OTHER PARTNERS ACTIONS OR INACTIONS.
THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
12. Tools (Hardware and Software), Methodologies, Approaches, etc.
Any or all of the Teaming Partners may use certain proprietary approaches,
methodologies and/or hardware and/or software tools (e.g. SQL Monitor,
PowerDesigner) and the associated documentation (e.g. "Sybase Tool Kit") in
performing services related to their respective product and/or service
responsibilities and obligations under this Agreement.
Any such proprietary, approach, methodology, tool or such is owned by the
respective Teaming Partner or its suppliers who will at all times retain all
rights, title and interest therein.
Each of the Teaming Partners agrees not to use such tools for any purpose,
relicense, copy in whole or in part, modify, reverse engineer, decompile or
disassemble the proprietary approach, methodology, tool or such, without the
prior written approval of respective Teaming Partner, original owner.
Access will be restricted to those who need to know and any information gained
by such use will be treated as Confidential Information and returned promptly,
within twenty- four- (24) hours of termination of this Agreement for any reason.
13. General Provisions
Term & Termination
Should the Team not be awarded a contract as a result of its Proposal, then;
this Agreement is terminated immediately.
Should the Team be awarded a contract as a result of its Proposal, then; the
Teaming Partners intend to negotiate the applicable sub-contract agreements
necessary to fulfill the Team's contractual obligations to Advanced Kiosk
Services, Inc. Any agreements between the Teaming Partners and their own
sub-contractors will be viewed as that Teaming Partner's responsibility.
Any delay or loss due to any Teaming Partner, its sub-contractors and
affiliates, or its failure to meet its obligations under this Agreement and/or
any other related agreement will be the responsibility of the particular Teaming
Partner to remedy. Such remedy must be made within twenty (20) business days of
written notice from any other Teaming Partner. Failure to do so, will constitute
grounds for termination of the defaulting Teaming Partner involvement in this
Agreement and the Retail Kiosk Delivery System - Power Photo Project.
Contractual commitments are to be met based upon the agreed to Detailed Work
Plan. Commitments not met within target dates must be rectified so as not to
impact the project deliverables. Formal notice will be given in the event of
such an occurrence and any cost associated with delays will be carried by the
at-fault Teaming Partner. Failure to do so, will constitute grounds for
termination of the defaulting Teaming Partner involvement in this Agreement and
the Retail Kiosk Delivery System - Power Photo Project.
Parties involved in the Retail Kiosk Delivery System - Power Photo Project,
either Teaming Partners or sub-contractors or any directly affiliated companies
or individuals will be excluded from making, or attempting to make contracts,
specific or implied, with Advanced Kiosk Services, Inc. or any companies or
individuals directly affiliated with it for the duration of this Agreement,
without the express written consent of the Teaming Partners.
Relationship between the Teaming Partners
The Teaming Partners will in all matters relating to this Agreement act as
independent contractors.
Nothing in this Agreement will be deemed to constitute the Teaming Partner as a
business partner, joint venturer, franchisee, agent or employee of any other
Teaming Partner (s), except as explicitly stated within this Agreement and in
relation to the Bid/Response/ Proposal or other related agreement.
None of the Teaming Partners will represent that it has any authority to assume
or create any obligation, express or implied, on behalf of any other Teaming
Partner, or to represent the other Teaming Partner outside of strict
responsibilities and obligations defined within this Agreement and the
Bid/Response/Proposal process (es) and work effort, should the Team be awarded
work.
Each Teaming Partner will be responsible for its respective expenses incurred in
the course of exercising any rights or responsibilities or meeting any
obligations under this Agreement.
Ontario Law
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE PROVINCE
OF ONTARIO, CANADA, EXCLUDING ITS CONFLICT OF LAWS RULES.
IT WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL
SALE OF GOODS, THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED.
EACH OF THE TEAMING PARTNERS SUBMIT TO THE JURISDICTION OF THE PROVINCIAL AND
FEDERAL COURTS LOCATED WITHIN THE COUNTY OF YORK WITHIN THE PROVINCE OF ONTARIO
WITHIN THE COUNTRY OF CANADA.
SERVICE OF PROCESS COMMENCING ANY SUIT RELATING TO THIS AGREEMENT IN SUCH COURTS
MAY BE MADE ON ANY TEAMING PARTNER OR COMBINATION OF TEAMING PARTNES IN THE
MANNER SPECIFIED IN RELEVANT SECTION BELOW FOR NOTICE.
Severability
If any provision of this Agreement is held by a court of competent jurisdiction
to be unenforceable, such unenforceability will not affect the enforceability of
the remaining provisions of this Agreement, and the parties will substitute for
the affected provision an enforceable provision which approximates the intent
and economic effect of the affected provision as closely as possible.
Notices
All notices relating to this Agreement will be in writing and delivered by
courier or hand or sent to the other Teaming Partner by first class certified
prepaid mail with return receipt requested to the address of such party
specified on the first page of this Agreement (addressed in the case of Sybase
Canada Limited to the attention of its General Counsel) or such other address as
may be provided by such other Teaming Partner in accordance with this Section,
and shall be deemed given upon receipt.
Non-assignment
This Agreement may not be assigned or otherwise transferred by any Teaming
Partner (s), whether by operation of law or otherwise, without the prior written
consent of each of the Teaming Partners, which consent will not be unreasonably
withheld.
Waiver
A waiver of default under this Agreement will not be a waiver of any other
default.
Failure or delay by any Teaming Partner to enforce compliance with any term or
condition of this Agreement will not constitute a waiver of such term or
condition.
Past Due Amounts; Attorneys' Fees
Past due amounts owing from any Teaming Partner (s) to another or others will
bear interest at a rate equal to one percent (1%) per month or the maximum rate
permissible under applicable law, whichever is less.
In the event of any undertaking to collect fees owing hereunder or any claim,
suit or other legal proceeding arising under or related to this Agreement, the
prevailing Teaming Partner will be entitled to recover from the other (s) its
reasonable costs incurred in such proceeding (including attorneys' fees and
disbursements).
For purposes of this section, the term "prevailing Teaming Partner" means the
Teaming Partner who obtains substantially the relief sought by such Teaming
Partner in such claim, suit or other legal proceeding, whether by settlement,
summary judgment, judgment or otherwise.
Injunctive Relief
The Teaming Partners acknowledge their respective and collective rights,
responsibilities and obligations under this Agreement are of a unique character
and agree that any breach of this Agreement may result in irreparable and
continuing damage to the others for which there will be no adequate remedy in
damages and in the event of such breach, the prevailing Teaming Partner will be
entitled to injunctive relief and/or a decree for specific performance and such
further relief as may be proper.
United States Export Regulations
The Teaming Partners agree that each will comply in all respects with any
governmental laws, orders or other restrictions on the export of any product
and/or service and any derivative product and/or service (and related
information and documentation) which may be imposed from time to time by the
governments of the United States, Canada and the country to which the product
and/or service is delivered to and/or in ("Export Requirements").
This Section will survive the expiration or termination of this Agreement.
Force Majeure
No delay, failure or default in performance of any responsibility or obligation
of either party hereunder shall constitute a breach of this Agreement to the
extent caused by force majeure.
Entire Agreement
This Agreement, together with the Appendices, Schedules, Exhibits and Addenda
hereto, constitute the entire agreement of the Teaming Partners and supersede
any previous communications, representations, understandings or agreements with
respect to the subject matter hereof.
A facsimile of a signed copy of this Agreement received by the lead and
coordinating Teaming Partner, Sybase Canada Limited personnel may be relied upon
as an original and in the event of any inconsistency between such facsimile and
a subsequently received hard copy, the facsimile will prevail.
This Agreement may only be modified by written agreement amongst each of the
Teaming Partners.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by
their respective authorized representatives. This Agreement may be executed in
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
Per: Sybase Canada Limited Per: Advanced Kiosk Services, Inc.
By /s/ Ron (R.W.) Allen By /s/ D.J. Huppe
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(Authorized Signatory) (Authorized Signatory)
Name Ron (R.W.) Allen Name D.J. Huppe
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Title Title
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Date Nov 17 '99 Date Nov 17, '99
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Per: Power Photo Kiosk Inc. Per: Integrated Kiosks Inc.
By /s/ Ronald H. Thompson By /s/ Michael Parker
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(Authorized Signatory) (Authorized Signatory)
Name Ronald H. Thompson Name Michael Parker,
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Title Title
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Date Nov 17 '99 Date Nov 17 '99
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