EXHIBIT 10.7
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TEAMING AGREEMENT
BETWEEN
L3 TECHNOLOGY INC.
AND
ESSTEC, INC.
THIS TEAMING AGREEMENT (the "Agreement") is entered into as of the February 15,
2002, by and among L3 TECHNOLOGY INC. (hereinafter referred to as "L3"), having
offices at 13700 International Place, Suite 120, Richmond, BC V6V 2X8 and
ESSTEC, INC. (hereinafter referred to as "EssTec"), with offices at 9500 E.
Artesia Blvd, Suite 203, Bell Flower, CA 90706; the above parties are
individually and/or collectively referred to herein as the "Party" or "Parties".
WITNESSETH:
WHEREAS, L3 is the owner of a wireless data software platform identified as
iMatix a; and
WHEREAS, EssTec is a developer and an integrator of custom applications in a
wide range of industries; and
WHEREAS, L3 and EssTec wish to facilitate the process by which EssTec's
customers may purchase and/or acquire licensed rights to use iMatix in
connection with EssTec's own products and services; and
WHEREAS, the Parties desire to enter into this Agreement in order to define a
business relationship to support and accomplish the above business objective;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. INITIAL TERM
The initial term of this Agreement shall be for a period of one (1) year from
the date of execution of the Agreement by the Parties, unless terminated
pursuant to Article 6.0 herein or unless extended by mutual written agreement of
the Parties.
2. RELATIONSHIP AND CONDUCT OF THE PARTIES; ROLES AND RESPONSIBILITIES
2.0 (a) Purpose:
This agreement is a formal arrangement aimed at:
(i) identifying customer opportunities and the business processes to be
followed where L3 and EssTec will jointly offer the individual products and
services of each party directly to Customer (defined as meaning the end-user
customer in all cases hereinafter) on a mutually agreeable basis ("Joint-Bids"),
and,
(ii) identifying customer opportunities and the business processes to be
followed where EssTec will offer L3's products on a stand-alone basis, or in
conjunction with other EssTec product and services offerings directly to
Customer ("EssTec Bids").
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2.0 (b) General Provisions
(i) This agreement shall be Non-exclusive and shall represent the sole
relationship between the two companies for the marketing and sale of iMatix
both jointly with EssTec, or by EssTec on a stand-alone basis. In the event
that either party wishes to enter into an agreement with a competitive
company, that party shall notify the other party in writing;
(ii) iMatix prices are based on L3's current commercial pricing structure and
related discount schedule (Annex 1);
(iii) All iMatix Customer support and training is provided by L3 based on
pre-discounted commercial pricing unless otherwise agreed to in writing by
the parties. Consulting and services are billed on a time and materials
basis.
(iv) L3 shall provide an initial technical end user, installation and sales
training to identified EssTec employees at no charge to facilitate
development and integration efforts with EssTec's product offering and to
assist with the development of sales and marketing plans for iMatix in
accordance with the terms of section 3.5. This training will be provided at
L3's offices.
(v) For sales demonstration and interface development purposes L3 shall make
available an iMatix license to EssTec at no charge for use in developing an
interface between iMatix and EssTec's products and services. The license
shall not be available for sale to the Customer by EssTec and shall be
destroyed on the termination of this agreement in accordance with the terms
of section 6;
(vi) EssTec shall provide reciprocal training and product for marketing and
interface development purposes under the same terms and conditions outlined
in sections 2.0(b)(iv) and (v) for EssTec related products and services.
(vii) A Customer Lead Notice (see Annex 2) must be completed, qualified and
signed by both parties prior to closing of the sale to determine the sales
and marketing approach (i.e., Joint Bid or EssTec Bid) and to confirm
eligibility and method of compensation and discounting as per this
agreement in the identified account. EssTec agrees to act reasonably in
identifying opportunities for Customer Lead Notice completion that
represent actual and real customer opportunities to sell L3's product which
will be subject to formal price quotations by EssTec. L3 agrees to act
reasonably in confirming their knowledge of customer opportunities that
were previously identified by L3.
(viii) L3 retains the right to have prime control on existing customers and
partners licensed to use or sell iMatix as identified by customer list
attached in Annex 4.
(ix) Compensation due to L3 for licenses sold to Customer will be dependent on
the nature of the relationship between the parties in pursuing
opportunities pursuant to section 2.0(a)(i) and (ii), and is outlined in
detail below;
(x) The terms of all software, maintenance and training payments by the
Customer on L3 products are due on receipt. Remittance of related
compensation under 2.0(c) and (d) to L3, or EssTec is due on receipt of
payment by Customer.
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2.0 (c) Joint Bids:
(i) Joint Bids undertaken by the parties must be confirmed in advance of
providing a formal quotation to the Customer as evidenced by completion and
acceptance of the Lead Notice (Annex 2).
(ii) Joint Bids shall be negotiated directly with the Customer by each party
separately reflecting the terms and conditions acceptable to each party
unless directed otherwise by the customer. If directed otherwise and a
three-party agreement is required, neither party, by virtue of this
agreement, has the right to bind the other bidding party to any terms and
conditions without their express written consent.
(iii) All other terms and conditions of the "Joint Bid" process are covered
under section 3.0 of this agreement.
2.0 (d) EssTec Bids:
(i) EssTec Bids undertaken by the parties must be confirmed in advance of
providing a formal quotation to Customer as evidenced by completion and
acceptance of the Lead Notice (Annex 2).
(ii) EssTec Bids represent a resale opportunity to EssTec, under which
arrangement EssTec shall purchase L3's licensed software at 30% discount of
L3's current list price. EssTec shall sell the licensed software to
Customer at a price, which at a minimum, shall exceed 85 % of L3's list
price so as not to adversely impact the average selling prices of L3's
software. Discounts that would otherwise reduce this selling price below
the agreed upon minimum price must be authorized in writing by L3.
(iii) Compensation payable to L3 under this section 2.0(d) shall be due and
payable to L3 upon receipt of payment by Customer.
(iv) EssTec shall be provided with copies of L3's Software License and
Maintenance Agreements to provide to the Customer for completion. EssTec
shall ensure that all orders submitted to L3 include a Software License
Agreement and, where applicable, Maintenance Agreement signed by the
Customer for maintenance support service to be provided by L3 on its iMatix
product. EssTec will contract separately for maintenance support services
on EssTec products with the Customer.
(v) In certain circumstances, EssTec may wish to integrate L3's product
offering into EssTec's product offering. In such cases, the bundled
offering will be offered to Customer at an all-inclusive price, provided
that the individual price of iMatix is not disclosed to the Customer. This
product offering including the pricing, cost to EssTec, funding of
development of the integrated product, product support issues and the terms
under which it is to be marketed will be subject to a separate OEM
agreement, to be negotiated at a later date.
2.1 This Agreement shall not constitute, create, give effect to or otherwise
recognize a joint venture, partnership or formal business organization of any
kind, and the rights and obligations of the Parties shall be only those
expressly set forth herein. No Party shall have authority to bind the other
Party except to the extent as expressed herein. The Parties shall be
independent entities with each other for all purposes at all times; no Party
shall act as agent for or representative of the other Party, and the employees
of one Party shall not be deemed to be employees of the other Party. Nothing in
this Agreement shall be construed as providing for the sharing of profits or
losses arising out of the efforts of any Party, except as may be provided for in
any Subcontract entered into between the Parties pursuant to Article 6 herein.
2.2 In all of its activities under this Agreement, each Party shall act
consistently with its status as an independent contractor. When any Party's
employees are on the premises of the other Party, the visiting employees shall
obey all rules and regulations established by the owner of the premises
regarding employee conduct of which the visiting Party is made aware.
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2.3 No Party shall, in its performance hereunder, take any action that would
be illegal under any applicable rules, regulations and laws.
2.4 Each Party shall furnish to the other Party such cooperation and
assistance as may be reasonably required hereunder.
2.5 Each Party represents and warrants that, to the best of its knowledge,
it has the legal right to perform all of its obligations under this Agreement.
3.0 JOINT MARKETING ACTIVITIES
3.1 During the term of this Agreement, each Party shall cooperate and work
with the other Party in business planning, marketing efforts and presentations.
Each Party may bring prospective client recommendations to the other Party for
the purpose of selecting the most appropriate projects for the pursuit of
mutually beneficial opportunities. Each Party may introduce the other Party to
prospective customers. In each instance, each Party shall use its reasonable
efforts to cooperate with the other Party in jointly marketing products and/or
services to such customers as set forth herein; provided, however, that nothing
in this Agreement shall obligate any Party to work with or notify the other
Party on individual marketing opportunities or projects.
3.2 In instances where the Parties choose to work together in jointly
marketing their products and/or services for specific customers, the Parties
shall discuss between or among them the allocation of responsibilities on an
individual project basis. The Parties shall evidence such understandings in an
addendum (hereinafter "Project Addendum") to this Agreement, which shall be
executed with respect to such individual customer projects prior to the start of
any contemplated proposal activities.
3.3 L3 shall provide EssTec, at no charge, reasonable amounts of sales
literature to be used by EssTec for any marketing or technical presentations to
its customers. In addition, L3 will make iMatix software available for
demonstration Purposes subject to the terms of section 2.0(b)(v).
3.4 Each Party shall designate one or more individuals within their
organization as their representative(s) responsible to direct the performance of
such Party's efforts under this Agreement, and who will periodically
communicate, as needed, to resolve any problems with their joint marketing
activities and exchange any materials or information necessary for the Parties'
further performance hereunder. Each Party shall use its reasonable efforts to
coordinate and cooperate with the other Party's representative. Each Party's
designated representative shall work with the other Party's designated
representative to coordinate trade show support, media campaigns, product
collateral and RFP response support. The following representative(s) are named
for this purpose:
L3 Representative: Allan Larmour
Executive Vice President, Sales and Marketing
(604) 214-7086
EssTec Representative: Shaun Edwardes
Executive Vice President
310 309 5140
Any notice of a change of representative(s) will be given promptly to the other
Party in writing.
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3.5 To facilitate marketing and technical presentations, during the term of
the Agreement, L3 shall semi-annually make available at no charge, an
appropriate, agreed to number of days of iMatix sales and marketing training for
EssTec' personnel. Such training shall be provided at L3's offices. EssTec
shall be responsible for all travel, lodging and per diem expenses incurred by
EssTec personnel and L3 shall be responsible for all travel, lodging and per
diem expenses incurred by L3 personnel.
4.0 CONFIDENTIALITY AND CONFIDENTIAL INFORMATION
4.1 "Confidential Information" means information belonging to or in the
possession or control of a Party which is of a confidential, proprietary or
trade secret nature that is furnished or disclosed to the other Party under this
Agreement: (i) in tangible form and marked or designated in writing in a manner
to indicate its confidential, proprietary or trade secret nature, or (ii) in
intangible form and concurrently identified as confidential, proprietary or
trade secret. Each Party agrees that Customer Lead Notices shall be Confidential
Information of the originating Party.
4.2 Confidential Information shall be deemed to exclude any particular
information that (i) is already known to the receiving Party without
restrictions at the time of its disclosure by the disclosing Party, as evidenced
by the written records of the receiving Party; (ii) after its disclosure by the
disclosing Party, is made known to the receiving Party without restrictions by a
third Party; (iii) is or becomes publicly known without violation of this
Agreement; or (iv) is independently developed by the receiving Party without
reference to the disclosing Party's Confidential Information, as evidenced by
the written records of the receiving Party.
4.3 Confidential Information shall remain the property of the disclosing
Party, and the receiving Party shall not be deemed by virtue of this Agreement
or any access to the disclosing Party's Confidential Information to have
acquired any right or interest in or to any such Confidential Information. The
receiving Party agrees: (i) to hold the disclosing Party's Confidential
Information in strict confidence; (ii) to limit disclosure of the disclosing
Party's Confidential Information to personnel furnished by the receiving Party
to perform Services under a Prime Contract or Subcontract, as the case may be,
or otherwise having a need to know the information for the purposes of this
Agreement; (iii) not to disclose any such Confidential Information to any third
party, except to a customer in a Project Proposal jointly prepared for such
customer; (iv) to use the disclosing Party's Confidential Information solely and
exclusively in accordance with the terms of this Agreement in order to carry out
its obligations and exercise its rights under this Agreement; (v) to afford the
disclosing Party's Confidential Information at least the same level of
protection against unauthorized disclosure or use as the receiving Party
normally uses to protect its own information of a similar character, but in no
event less than reasonable care; and (vi) to notify the disclosing Party
promptly of any unauthorized use or disclosure of the disclosing Party's
Confidential Information. Neither this Agreement nor the exchange of
Confidential Information hereunder shall be construed as granting any right or
license under any copyrights, inventions, or patents now or hereafter owned or
controlled by any Party.
4.4 If the receiving Party receives a subpoena or other validly issued
administrative or judicial notice requesting the disclosure of the disclosing
Party's Confidential Information, the receiving Party shall promptly notify the
disclosing Party and, if so requested, shall provide reasonable cooperation to
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the disclosing Party in resisting the disclosure. Subject to its obligations
stated in the preceding sentence, the receiving Party shall be entitled to
comply with any binding subpoena or other process to the extent required by law,
but shall in doing so make every effort to secure confidential treatment of any
materials it is compelled to disclose.
4.5 Within 14 days after the written request of the disclosing Party, the
receiving Party, at the disclosing Party's option, shall return or destroy, and
give written confirmation thereof, all Confidential Information of the
disclosing Party that the receiving Party does not possess under a valid
license.
4.6 Each Party agrees that if a court of competent jurisdiction determines
that the receiving Party has breached, or attempted or threatened to breach, any
of its confidentiality obligations to the disclosing Party or the disclosing
Party's proprietary rights, the disclosing Party shall be entitled to obtain
appropriate injunctive relief and other measures restraining further, attempted
or threatened breaches of such obligations.
4.7 The rights and obligations provided by this Article 4.0 shall survive
the termination of this Agreement.
5.0 INTELLECTUAL PROPERTY RIGHTS
5.1 With respect to any proprietary rights in and to all designs,
engineering details and other data pertaining to any discoveries, inventions,
patent rights, copyright rights and the like ("Intellectual Property Rights"),
and except as otherwise agreed in writing by the Parties, each Party shall
exclusively own Intellectual Property Rights which are independently developed
by such Party. With respect to any Intellectual Property Rights, which are
jointly developed by the Parties pursuant to this Agreement, the Parties agree
that they shall share information with each other about their respective company
policies regarding the development and ownership of such Intellectual Property
and shall endeavor to reach agreement as to each Party's rights and obligations
thereto.
5.2 Except as set forth in Section 5.1, this Agreement does not grant to any
Party any rights in, or license to, any present or future Intellectual Property
Rights.
6.0 TERMINATION OF TEAMING AGREEMENT
6.1 This Agreement shall terminate pursuant to any one of the following
events:
6.1.1 upon default by a Party which continues unremedied for a period of
thirty (30) days after written notice from the aggrieved Party
specifying the nature of such breach;
6.1.2 upon acquisition of a Party by a competitor (determination of whether
or not the acquiring party is a competitor shall be solely made by the
non-acquired Party) of the non-acquired Party;
6.1.3 upon expiration of the term of this Agreement;
6.1.4 upon ninety (90) days' prior written notice of termination from one
Party to the other Party after expiration of the initial term of this
Agreement;
6.1.5 upon a Party's insolvency or initiation of bankruptcy or receivership
proceedings by or against a Party or the execution of an assignment
for the benefit of creditors; or
6.1.6 upon mutual written consent of the Parties; whichever shall first
occur.
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6.2 Termination of this Agreement shall have the effect of terminating the
Parties' obligations to continue any joint marketing, sales and proposal
activities hereunder. Prior to the effective date of termination, the Parties
will attempt to negotiate in good faith an orderly transition for any joint
marketing, sales or proposal activities in progress. Upon termination of this
Agreement:
6.2.1 No Party will be liable to the other Party for damages, expenditures,
or loss of profits or prospective profits of any kind or nature
sustained by, arising out of, or alleged to have arisen out of such
termination;
6.2.2 However, if the joint marketing efforts contemplated herein have
resulted in a Project Proposal to a customer requiring bid security
("Bid Bond"), the Party requesting termination of this Agreement shall
assume full responsibility, including repayment to the other Party,
for any proposal default which results in the loss of said Bid Bond;
and
6.3 Any termination of this Agreement for cause shall not affect any right or
obligation of a Party which arose prior to such termination.
7.0 COSTS AND EXPENSES
7.1 Any and all costs and expenses incurred by a Party and arising out of
its obligations and efforts under this Agreement shall be borne by that Party.
No Party shall charge the other Party for any services provided to the other
Party unless specifically agreed to in writing by the Parties. In the event
that funds are provided by a particular customer for any work associated with
the design, demonstration or other phases of a project, such funds will be used
to defray the costs and expenses of each Party on a basis proportionate to each
Party's share of the total costs and expenses incurred by the Parties in
connection with such work.
7.2 Should a dispute arise from the subject matter of this Agreement, the
prevailing Party in any resulting litigation shall be reimbursed by the other
Party involved in the litigation for any attorney's fees and associated expenses
incurred.
8.0 INDEMNIFICATION
8.1 Each Party ("Indemnifying Party") shall indemnify and hold harmless the
other Party ("Indemnified Party") from and against any loss, cost, claim,
liability, damage and expense (including reasonable attorney's fees) to third
parties relating to or arising out of the Indemnifying Party's performance of
its obligations in this Agreement, insofar as such claims stem from the
Indemnifying Party's negligence or willful misconduct which results in death or
bodily injury to any person or damage to any real or tangible personal property.
8.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any written claims, lawsuits or demands by third parties for which
one or more of the Indemnified Party allege that the Indemnifying Party is
responsible under this Article 8.0, and if requested by the Indemnifying Party,
will tender the settlement or defense of such claim, lawsuit or demand. The
Parties will cooperate in every reasonable manner with the defense or settlement
of such claim, lawsuit or demand. The Indemnifying Party will not be liable
under this Article 8.0 for settlements by the Indemnified Party of any claim,
lawsuit or demand, unless the Indemnifying Party has approved the settlement in
advance or unless the defense of the claim, lawsuit or demand has been tendered
to the Indemnifying Party in writing and the Indemnifying Party has failed
promptly to undertake the settlement or defense.
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9.0 LIMITATION OF LIABILITY
9.1 Except as set forth in Article 9.0 herein, neither Party shall be liable
to any other Party for loss, cost, claim, injury, liability or expense,
including reasonable attorney's fees, relating to or arising out of any ordinary
negligent act or omission by a Party. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
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PARTY FOR LOST REVENUES, LOST PROFITS, OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR
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CONSEQUENTIAL DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED BY THE OTHER
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PARTY OF THE PROBABILITY OF SUCH DAMAGE OR LOSS, WHETHER SUCH DAMAGE OR LOSS
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ARISES IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
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9.2 Each Party shall mitigate its damages in a commercially reasonable
fashion in the event of the other Party's default under this Agreement. The
Parties shall exercise reasonable efforts to cooperate with each other so as to
avoid having any internal dispute between or among them affect the customer or
disrupt service to the customer.
9.3 The provisions of this Article 9.0 shall survive the termination of this
Agreement.
10.0 FORCE MAJEURE
No Party shall be liable for its failure or delay in the performance of its
obligations under this Agreement due to causes beyond its reasonable control.
11.0 ASSIGNMENT
Neither this Agreement nor any of the rights or obligations under this Agreement
(including any Project Addendum) may be assigned, delegated, sublicensed or
otherwise transferred by any Party in whole or in part, without the prior
written consent of the other Party.
12.0 SUBCONTRACTING
Upon prior written notice to, and the consent (not to be unreasonably withheld)
of, the other Party, either Party may subcontract any of its obligations under
this Agreement, but no such subcontract shall relieve the subcontracting Party
of primary responsibility for performance of its obligations.
13.0 NON-EXCLUSIVITY
This Agreement is non-exclusive. Any Party may enter into similar agreements
with third parties; provided, however, that consistent with observing the
requirements of Article 7 herein, neither Party shall disclose a Project
Proposal or other terms of any agreement concerning the subject matter of this
Agreement to any third party without the prior written consent of the other
Parties. Each Party expressly understands and agrees that the other Party may
sell, in the ordinary course of business, its products and services to third
parties who may individually (but not in cooperation with a Party hereto)
respond to the same solicitation for a customer project, or who may team with
another third party for the purpose of submitting a proposal. Sales by a Party
to such third parties shall not constitute a violation of this Agreement.
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14.0 PUBLIC ANNOUNCEMENTS
No Party shall use the name of the other Party in any news release, public
announcement, advertisement, sales promotion material or other form of publicity
without the prior written consent of the other Party. No Party shall disclose
the existence or the contents of any of the terms and conditions of this
Agreement without prior written consent of the other Party.
15.0 JOINT ADVERTISING
In the event that the Parties agree to any joint advertising and/or joint sales
promotional materials, each Party shall have a right of approval over the
applicable advertising or sales promotional materials, and all costs and
expenses associated with the production of such advertising and sales
promotional materials shall be shared equally by the Parties, unless otherwise
agreed in writing by the Parties.
16.0 NOTICES
16.1 Notices and authorizations under this Agreement shall be transmitted in
writing by Certified Mail, postage prepaid, return receipt requested, to the
address of the appropriate Party indicated on the first page of this Agreement
or to such other address as a Party may designate by written notice to the other
Party.
Notices to L3 shall be delivered to:
L3 Technology, Inc.
13700 International Place, Suite 120
Richmond, BC V6V 2X8
Attention: Naiel Kanno, President & CEO
Notices to EssTec shall be delivered to:
EssTec, Inc.
9500 E. Artesia Blvd., Suite 203
Bell Flower, CA 90706
16.2 Any notice given pursuant to this Article 16 shall be effective five
(5) days after the day it is mailed or upon receipt as evidenced by the Postal
Service return receipt card, whichever is earlier.
17.0 AMENDMENTS AND WAIVERS
This Agreement and any Project Addendum hereto may be amended only by written
agreement of the Parties. No amendment or waiver of any provisions of this
Agreement, and of consent to any default under this Agreement, shall be
effective unless the same shall be in writing and signed by a duly authorized
representative on behalf of the Party against whom such amendment, waiver or
consent is claimed. In addition, no course of dealing or failure of any Party
to enforce strictly any term, right, or condition of this Agreement shall be
construed as a waiver of such term, right or condition.
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18.0 ORIGINALS
This Agreement may be executed in multiple counterparts, in which case each such
counterpart shall be an original and together each shall constitute one and the
same document.
19.0 SECTION HEADINGS
Section headings are inserted for convenience only and shall not be used in any
way to construe the terms of this Agreement.
20.0 SEVERABILITY
If any provision hereof is declared or determined to be invalid or unenforceable
under applicable law, the remaining provisions hereof shall continue in full
force and effect and the Parties shall substitute for the invalid provision a
valid provision, which most closely approximates the economic effect and intent
of the invalid provision.
The invalidity, in whole or in part, of any section or paragraph of this
Agreement shall not affect the validity of the remainder of this Agreement.
21.0 EXPORT CONTROL
Both L3 and EssTec agree to comply fully with all relevant export laws and
regulations of the United States and Canada to ensure that no information or
technical data provided pursuant to this Agreement is exported or re-exported
directly or indirectly in violation of law. Each Party agrees, at its own
expense, to comply with all foreign exchange and other laws and regulations
applicable to such Party, and each Party agrees to obtain any licenses or
approvals necessary for such Party to perform this Agreement.
22.0 INFORMAL DISPUTE RESOLUTION
22.1 At the written request of either Party, the Parties will attempt to
resolve any dispute arising under or relating to this Agreement through the
informal means described in this Section. Each Party will appoint a senior
management representative who does not devote substantially all of his or her
time to performance under this Agreement (the "Arbitration Representative").
Each Arbitration Representative will furnish to the other all non-privileged
information with respect to the dispute that the Parties believe to be
appropriate and germane. The Arbitration Representatives will negotiate in an
effort to resolve the dispute without the necessity of any formal proceeding.
Formal proceedings for the resolution of the dispute may not be commenced until:
(i) the designated representatives conclude that resolution through continued
negotiation does not appear likely; or (ii) thirty (30) calendar days have
passed since the initial request to negotiate the dispute was made; provided,
however, that a Party may file earlier to avoid the expiration of any applicable
limitations period, to preserve a superior position with respect to other
creditors, or to apply for interim or equitable relief.
22.2 Any question or dispute arising out of or relating to this Agreement
not resolved pursuant to Section 24.1 will be settled by arbitration
administered by the Canadian Arbitration Association in accordance with its
Commercial Arbitration Rules and the Supplementary Procedures for Large, Complex
Disputes, and judgment on the award may be entered in any court having
jurisdiction thereof or over the applicable Party or its assets. There will be
three (3) arbitrators; one (1) selected by each Party and the two so selected
will select a third arbitrator. The third arbitrator will meet the
qualification criteria to serve as an arbitrator in the Large, Complex Case
Dispute Resolution Program and will serve as chairman of the arbitration. The
Expedited Procedures will apply. The arbitrators will have no authority to
award any damages that are excluded by the terms and conditions of this
Agreement. Either Party will have the right to apply at any time to a judicial
authority for appropriate injunctive or other interim or provisional relief, and
will not by doing so be deemed to have breached its agreement to arbitrate or to
have affected the powers reserved to the arbitrators.
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23.0 LIMITATION OF ACTIONS
No proceeding, regardless of form, arising out of or related to this Agreement
may be brought by either Party more than two (2) years after the accrual of the
cause of action, except that (i) proceedings related to violation of a Party's
proprietary rights or any duty to protect Confidential Information may be
brought at any time within the applicable statute of limitations, and (ii)
proceedings for non-payment may be brought up to two (2) years after the date
the last payment was due.
24.0 ORDER OF PRECEDENCE
In the event of any conflict between or among the provisions contained in the
following documents (the "Contract Documents"), the following order of
precedence will govern: (i) Subcontracts, (ii) this Agreement, exclusive of its
Annexes; (iii) Annexes to this Agreement; and (iv) Project Addendums (except as
to terms specifically identified in a particular Project Addendum as modifying
or amending terms of this Agreement, which terms will control over the Agreement
for that Project Addendum only).
25.0 NONSOLICITATION
During the term of this Agreement and for twelve (12) months after its
expiration or termination, neither Party will either directly or indirectly,
solicit for employment by itself (or any of its Affiliates) any employee of the
other Party (or any of its Affiliates) who was involved in the performance of
the Contract Documents, unless the hiring Party obtains the written consent of
the other Party.
26.0 ENTIRE AGREEMENT; GOVERNING LAW
26.1 This Agreement constitutes the entire understanding and agreement of
and among the Parties with respect to the subject matter hereof, and
supersedes any prior or contemporaneous representations and
agreements, verbal or written. This Agreement shall be governed by and
construed in accordance with the laws of the Province of British
Columbia, Canada.
26.2 All provisions of this Agreement shall take precedence over any
conflicting terms and conditions of any purchase orders, invoices, or
other instruments which may be issued by EssTec and L3, unless
otherwise agreed by the parties in writing.
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IN WITNESS HEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the dates set forth below.
L3 TECHNOLOGY INC. ESSTEC, INC.
By: /s/Naiel P. Kanno By: /s/ Abdul L Saquib
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Name: Naiel P. Kanno Name: Abdul L Saquib
----------------- ------------------
Title: President and CEO Title: VP Operations
------------------- ------------------
Date: Date: March 4, 2002
------------------
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Confidential Teaming Agreement Page 12
ANNEX 1
IMATIX CURRENT PRICING
___________________________
NOTES
- -----
1. All prices are in US funds.
--
2. All license prices are applicable for iMatix Release 2.2 and do not
include future upgrades. The upgrade policy is as follows:
a) Each new version will be separately priced.
b) Customers upgrading from one version to a higher version will pay the
price difference between versions.
c) No credit will be issued for versions that have decreased in price.
3. License fees DON'T include cost of:
a) Database software (Oracle).
b) Hardware (file server and devices).
c) Operating systems (file server and devices).
d) Third party software packages, IIS for Web server and Java Virtual
Machine for devices.
e) Network connection/provider.
f) Map engine & data.
g) Professional services such as, installation, implementation,
customization and training.
4. Out of pocket expenses (travel, car rental, hotel, meals, etc.) are
billed at cost.
5. Definition of mobile device is, a mobile device is one IP address.
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Confidential Teaming Agreement Page 13
A) MATIX LICENSE FEE TABLE
--------------------------
CLASS TOTAL DEVICE COUNT BASE LICENSE FEE (US$)
----- ------------------ ----------------------
1 1 - 100 250,000
----- ------------------ ----------------------
2 101 - 250 300,000
----- ------------------ ----------------------
3 251 - 500 350,000
----- ------------------ ----------------------
4 501 - 1000 400,000
----- ------------------ ----------------------
5 Unlimited 500,000
----- ------------------ ----------------------
B) IMATIX LICENSE FEE
--------------------
The iMatix License Fee is a perpetual one-time fee. To determine the list price
for an iMatix License Fee, follow these steps:
1. Determine the total number of devices that will be serviced by the
iMatix platform.
2. Refer to the iMatix License Fee Table, above, and determine the Base
License Fee and the Per Device Fee.
C) UPGRADING AN IMATIX LICENSE
------------------------------
An iMatix License needs to be upgraded, once additional devices are added on the
iMatix platform. Two upgrade possibilities:
1. Additional devices don't result in a Class category change. In this
case, nothing needs to be changed.
2. Additional devices result in a Class category change. In this case,
determine the iMatix License Fee for the old and new configuration
(refer to item B, above). Subtract the old device count pricing from
the new device count pricing. The difference is the upgrade fee. In
addition, you need to adjust the Annual Support Fee (refer to item D,
below).
D) IMATIX ANNUAL SUPPORT FEE
----------------------------
The iMatix Annual Support Fee is 20% of the current iMatix License Fee. The fee
is pre-paid annually.
If an iMatix license has been upgraded to a higher Class category, then follow
these steps to adjust the current Annual Support Fee for the remainder of the
current term:
1. Determine the Annual Support Fee based on the new Class category.
2. Find out the current Annual Support Fee and apply it as a 100% credit
towards item 1, above.
3. The difference is the adjusted amount for the remainder of the current
term.
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Confidential Teaming Agreement Page 14
E) PROFESSIONAL SERVICES
----------------------
L3's professional services fees are as follows:
1. Development: US$150/hour
2. Installation: US$150/hour
3. Business Analysis: US$150/hour
4. On-site Training: US$200/hour
5. L3 Site Training: US $500/person/day
(Minimum 3 attendees per class)
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Confidential Teaming Agreement Page 15
ANNEX 2
CUSTOMER LEAD NOTICE
__________________________
TYPE OF BID: Joint: _________ EssTec: _______
PROSPECT/CUSTOMER NAME AND ADDRESS:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
OPPORTUNITY DESCRIPTION/REQUIREMENTS:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
ESTIMATED TOTAL PROJECT VALUE: $
-----------------------------------
CONTACT
LEAD PROVIDED BY:
-----------------------
TELEPHONE:
--------------------------
FAX:
--------------------------
EMAIL ADDRESS:
--------------------------
EFFECTIVE DATE OF THIS LEAD NOTICE: ____________________________________________
L3 TECHNOLOGY INC. ESSTEC, INC.
- -------------------- ------------------
By: By:
--------------------------- --------------
Name: ------------------------ Name: ------------
Title:------------------------ Title: -----------
Date: ------------------------ Date: ------------
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Confidential Teaming Agreement Page 16
ANNEX 3
SAMPLE PROJECT ADDENDUM
______________________________
This document details the responsibilities and work scope of the Parties with
respect to preparing and submitting a joint Project Proposal and carrying out
the project as defined below.
CUSTOMER
Name:
______________________________________________________________________
Address:
______________________________________________________________________
CONTACT
Name Phone# Email
- --------------------- ---------------------- ------------------
PROJECT DESCRIPTION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
RESPONSIBILITIES OF EACH PARTY FOR THE PROJECT:
1.0 PROJECT PROPOSAL ACTIVITIES
1.1 L3 Undertakings
1.2 EssTec Undertakings
1.3 Joint Undertakings
1.4 Proposal Prime for L3:
_____________________________________
_____________________________________
Phone #: __________________________
FAX #: __________________________
1.5 Proposal Prime for EssTec:
_____________________________________
_____________________________________
Phone #: __________________________
FAX #: __________________________
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Confidential Teaming Agreement Page 17
ANNEX 4
EXISTING CUSTOMERS AND PARTNERS
________________________________________
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Confidential Teaming Agreement Page 18