VIEWS: 1,766 PAGES: 12 CATEGORY: IT Service Agreements POSTED ON: 6/18/2010
A Teaming Agreement is used when two contractors or businesses desire to jointly prepare a response to a Request For Proposal (RFP) and jointly deliver the project should they be awarded the contract. The RFP issuer is referred to as the "Sponsor". In the Teaming Agreement, one of the two contractors is defined as the "Prime Contractor" and the other as the "Subcontractor". This document contains both standard clauses as well as opportunities for customization to ensure that the understandings of the parties are properly set forth.
A Teaming Agreement is used when two contractors or businesses desire to jointly prepare a response to a Request For Proposal (RFP) and jointly deliver the project should they be awarded the contract. The RFP issuer is referred to as the "Sponsor". In the Teaming Agreement, one of the two contractors is defined as the "Prime Contractor" and the other as the "Subcontractor". This document contains both standard clauses as well as opportunities for customization to ensure that the understandings of the parties are properly set forth. MASTER TEAMING AGREEMENT THIS TEAMING AGREEMENT (together with all Project Supplements hereto, this “Agreement”) is made and entered into as of ________ ___, (date) by and between [insert company name], an [insert company city/state] company (insert company “DBA”), and ________________, a ___________ corporation (the “Contractor”). [insert company name] and the Contractor are sometimes referred to herein collectively as the “Team Members” and individually as a “Team Member”. WITNESSETH: WHEREAS, from time to time the Team Members identify or are given opportunities relating to the provision of goods or the performance of services in the area or field of ____________________, including, without limitation, receiving requests for proposals issued by, and other inquiries from, third parties (collectively, “Opportunities”); WHEREAS, the Team Members believe that they offer complementary products and/or services and that a cooperative effort between them will be mutually beneficial in responding to or pursuing any Opportunities which the parties mutually agree to respond to or pursue on a joint basis pursuant the terms of this Agreement; and WHEREAS, the Team Members desire to enter into this Agreement to provide for the joint preparation of proposals or other joint marketing efforts in response to any Opportunity that the Team Members elect to jointly pursue, the allocation of work to be performed under any contract awarded by a customer for the performance of the projects arising from any Opportunity, and certain other matters, all as more particularly set forth below. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Team Members, intending to be legally bound, hereby covenant and agree as follows: Section 1. OPPORTUNITIES; ALLOCATION OF RESPONSIBILITY 1.1 The recitals set forth above are incorporated in, and made a part of, this Agreement as if set forth at length herein. 1.2 This Agreement and the obligations of the Team Members hereunder shall relate only to those requests for proposals issued by, inquiries from, or other Opportunities with, third parties (“Customers”) that the Team Members expressly agree shall become subject to this Agreement (collectively, the “Joint Opportunities”) and the related projects that the Team Members expressly agree shall also become subject to this Agreement. Opportunities and related © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 2 projects shall become Joint Opportunities subject to this Agreement upon the execution by both Team Members of a Project Supplement substantially in the form of Exhibit A hereto (together with all attachments thereto, a “Project Supplement”) specifically relating thereto. Each Project Supplement may also contain additional terms and conditions governing the respective rights and obligations of the Team Members with respect to the Joint Opportunity. 1.3 It is understood and agreed that neither Team Member shall have any obligation to notify the other Team Member of the existence of any Opportunity or to agree to subject, or offer to subject, any Opportunity or related project to this Agreement. It is further understood and agreed that each Team Member has the absolute right to pursue any Opportunity alone or with third parties, unless the Team Member receiving or identifying the Opportunity elects, in its sole discretion, to notify the other of the Opportunity, offers to subject the Opportunity to this Agreement and the parties do so in accordance with Subsection 1.2 above. Nothing contained herein shall be deemed to restrict either Team Member from quoting, offering to sell, or selling to others any items or services that it may regularly offer for sale, even though such items or services may be included in a proposal in response to any Joint Opportunity. 1.4 Except for any direct damages arising as a consequence of a breach of this Agreement, any and all cost, expense or liability to either Team Member arising out of or related to this Agreement shall be paid by the Team Member incurring such cost, expense or liability, and neither Team Member shall be liable or obligated to pay any cost, expense or liability paid or incurred by the other. Section 2. SUBSEQUENT CONTRACTS In the event that a Team Member is awarded a contract by a Customer, or the Team Members enter into another arrangement with a Customer, respecting any Joint Opportunity (each, a “Customer Contract”), the Team Members agree to negotiate in good faith the terms and conditions of a subcontract or other arrangement (each, a “Project Contract”) for the portion of such related joint project allocated to the other Team Member pursuant to the applicable Project Supplement, if necessary. Each Project Contract shall be consistent with the terms and conditions of the Customer Contract to which it relates (including, without limitation, any Statement of Work) and the applicable Project Supplement. Section 3. PROPRIETARY INFORMATION, SOLICITATION OF EMPLOYEES 3.1 Each Team Member acknowledges that the Confidential Information (as defined below) and Trade Secrets (as defined below) of the other constitutes valuable confidential and proprietary information. Hereinafter “Confidential Information” shall be deemed to mean “Confidential Information” and/or “Trade Secrets.” Each Team Member shall hold the Confidential Information of the other Team Member disclosed or made available to it (in such © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 3 capacity, the “Receiving Party”) by such other Team Member (in such capacity, the “Disclosing Party”) in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid the unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care. The Receiving Party shall not use the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever, other than in connection with pursuing the Joint Opportunities and obtaining and negotiating the Customer Contracts and the Project Contracts. The Receiving Party shall disclose the Confidential Information disclosed or made available to it by the Disclosing Party only to those of its employees having a need to know such Confidential Information and shall take all reasonable precautions to ensure that its employees comply with the provisions of this Subsection 3.1, including by requiring such employees to execute stringent non- disclosure agreements. 3.2 The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry of either Team Member or third parties with which either Team Member conducts or may conduct business and which has been or is hereafter disclosed or made available by either Team Member to the other in connection with a Joint Opportunity, a Customer Contract, a Project Contract or this Agreement or the respective rights and obligations of the Team Members hereunder including, without limitation, (a) all trade secrets, (b) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, (c) information relating to business plans, sales or marketing methods and customer lists or requirements and (d) all software. “Trade Secrets” means information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy Each party acknowledges that disclosure or use of a trade secret without express or implied consent violates the Uniform Trade Secrets Act. Each party acknowledges that the other party is not seeking to obtain trade secrets or confidential information of others that such party might possess and agrees not to improperly disclose trade secrets or confidential information of others to the other party. 3.3 Notwithstanding the foregoing, Confidential Information shall not include, and the obligations of either party under Subsection 3.1 will not apply to, information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the Receiving Party, (iv) is independently developed by the Receiving Party without regard to the Confidential Information of © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 4 the Disclosing Party, or (v) is required to be disclosed by law, regulation or order of a court of competent jurisdiction or other governmental authority, to the extent of such required disclosure, provided that the Receiving Party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the Disclosing Party, at the Disclosing Party's cost and expense, in any effort made by the Disclosing Party to seek a protective order or other appropriate protection of its Confidential Information. 3.4 Neither Team Member grants any license or other right to the other (whether by estoppel, implication or otherwise) under any trademark, trade secret, patent, copyright or other proprietary right owned or controlled by it as a result of the use of any Confidential Information or other proprietary rights or materials of the other in connection with any Joint Opportunity, the transmittal of any Confidential Information or other proprietary materials to such other Team Member or any other act or omission, other than a limited right of use solely in connection with the pursuit of a Joint Opportunity consistent with the intent and purposes of this Agreement. 3.5 This Agreement shall not preclude either party from making disclosures of Confidential Information to a Customer in connection with a written proposal to such Customer under an agreement with such Customer that limits the use of such information to evaluation of such proposal and that prohibits further disclosure, copying, dissemination or use thereof, provided that the only Confidential Information disclosed shall be that which is necessary to disclose, and the Customer executes a non-disclosure agreement at least as stringent as this one, including requiring the Customer not to disclose any Confidential Information except to those within Customer’s organization that have a need to know and who have executed stringent non-disclosure agreements . 3.6 Upon termination of this Agreement or upon the request of the Disclosing Party, the Receiving Party shall immediately return to the Disclosing Party all materials in its possession or control that reflect or embody Confidential Information disclosed by the Disclosing Party. 3.7 Neither Team Member shall directly or indirectly solicit or recruit , or accept from third parties services provided by, any employee of the other that participated in the preparation of any proposal or any other marketing effort relating to a Joint Opportunity or the performance or negotiation of this Agreement, any proposed or actual Customer Contract or any proposed or actual Project Contract, as the case may be, during the term of this Agreement and any proposed or resulting Customer Contract that such employee performed services with respect to (if applicable) and for a period of one (1) year thereafter. 3.8 Each Team Member acknowledges that the other will have no adequate remedy at law if it violates any of the provisions of this Section 3. Accordingly, each party shall have the right, in addition to any other rights and remedies it may have, at law, in equity or otherwise, to obtain in any court of competent jurisdiction injunctive relief to restrain any breach or threatened breach hereof or otherwise to specifically enforce any of the provisions of this Section 3, without the requirement of the posting of a bond or undertaking. The provisions of this Section 3 shall survive the expiration or sooner termination of this Agreement. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 5 Section 4. TERMINATION 4.1 Except as expressly provided in Section 3 hereof, all rights and obligations of the Team Members under this Agreement with respect to any Joint Opportunity shall terminate as set forth in the applicable Project Supplement. 4.2 In the event the rights and obligations of the Team Members under this Agreement respecting any Joint Opportunity shall terminate for any reason other than in the case where the parties enter into a Project Contract respecting such Joint Project, either Team Member shall have the right, subject to Section 3 hereof, to pursue business opportunities with the applicable Customer or any third party contractor awarded a contract by such Customer or other third parties for work related to such Opportunity; provided that if such termination or the failure of the Team Members to enter into a Project Contract with respect to such Joint Opportunity is a result of a breach of this Agreement by either Team Member, the defaulting Team Member shall not have the right to pursue such business opportunities. 4.3 Except as expressly provided in Section 3 hereof, all rights and obligations of the Team Members under this Agreement shall terminate upon the first to occur of any of the following events: (a) Expiration of a period of ____________ [choose a time period] following the date hereof, unless such term is extended by mutual agreement of the parties; (b) Mutual agreement of the Team Members; or (c) A material breach by either Team Member of any of the provisions contained herein (including in any Project Supplement) and such material breach remains uncured after a period of thirty (30) days following such Team Member's receipt of written notice of such material breach from the other Team Member. In the event the rights and obligations of the Team Members under this Agreement shall terminate for any reason, the provisions of Section 4.2 above shall apply to all Joint Opportunities. Section 5. PUBLICITY Any news release, public announcement, advertisement, or publicity proposed to be released by either Team Member in connection with any Joint Opportunity, this Agreement or any Customer Contract or Project Contract will be subject to the written approval of the other Team Member prior to release, such approval not to be unreasonably withheld or delayed. Full consideration and representation of the respective roles and contributions of both Team Members shall be given in any such statement. Section 6. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 6 LIMITED WARRANTY AND LIMITATION OF REMEDIES 6.1 Each Team Member warrants that it has the right to enter into this Agreement and fully perform all obligations applicable to it hereunder. 6.2 Each Team Member warrants that the data, information and other material furnished and to be furnished to the other Team Member does not and will not infringe any third- party rights, including in any patent, copyright, trade secret, or actual or prospective business advantage or contract, or interfere with or induce the breach of any contract. 6.3 EACH TEAM MEMBER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY PROJECT SUPPLEMENT, WITH RESPECT TO ANY DATA, INFORMATION OR OTHER MATERIAL FURNISHED HEREUNDER OR THEREUNDER, INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Each Team Member shall be responsible to the Customer for any errors or omissions in the information which it provides. 6.4 In no event shall either Team Member be liable to the other for any loss of profits or other incidental, indirect, special, exemplary, or consequential damages, even if such Team Member has been advised of the possibility of such damages. Except for any claims arising from breach of any warranty or any Customer Contract or Project Contract in no event shall either Team Member be liable to the other for claims or demands brought against the other Team Member by a third party, even if such Team Member has been advised of the possibility of such damages. Section 7. MISCELLANEOUS 7.1 All notices, consents and other communications required or which may be given under this Agreement shall be deemed to have been duly given (i) when delivered by hand, (ii) three (3) business days after being mailed by registered or certified mail, return receipt requested, postage prepaid, or (iii) when received by the addressee if sent by facsimile transmission or by Express Mail, Federal Express or other express delivery service (receipt requested), in each case addressed to a party at its address set forth below (or to such other address(es) as such party may hereafter designate as to itself by notice to the other party hereto): If to [insert company name]: If to Contractor: [insert company address] Attn: Chief Operations Officer cc: Chief Legal Officer © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 7 7.2 This Agreement may not be amended or modified, nor may any right or remedy of any Team Member be waived, unless the same is in writing and signed by a duly authorized representative of such Team Member. The waiver by any Team Member of the breach of any term or provision hereof by any other will not be construed as a waiver of any other or subsequent breach. No failure or delay by either Team Member in exercising any of its rights or remedies hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies of the Team Members provided in this Agreement are cumulative and not exclusive of any rights or remedies provided under this Agreement, by law, in equity or otherwise. The headings used in this Agreement are for convenience of reference only and shall not affect the meaning or construction of this Agreement. 7.3 Neither Team Member may assign or otherwise transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other party, except either Team Member may, upon written notice to the other Team Member, assign this Agreement or any of its rights hereunder to any person or entity who succeeds to all or substantially all of the capital stock, assets or business of such Team Member, provided such person or entity agrees in writing to assume and be bound by all of the obligations of such Team Member under this Agreement. Any attempted assignment or transfer in contravention of this Subsection 7.3 shall be void and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the Team Members and their respective legal representatives, successors and permitted assigns. 7.4 The Team Members are not (and nothing in this Agreement shall be construed to constitute them) partners, joint venturers, agents, representatives or employees of the other , and nothing in this Agreement shall create any relationship between them other than that of parties to this Agreement. Neither Team Member shall have any responsibility nor liability for the actions of the other Team Member, except as specifically provided herein. Neither Team Member shall have any right or authority to bind or obligate the other in any manner or make any representation or warranty on behalf of the other. No profits, losses or costs will be shared under any provision of this Agreement or as a result of either Team Member's efforts in connection with any Joint Opportunity and securing an award of any Customer Contract. 7.5 This Agreement, including the performance and enforceability hereof, shall be governed by and construed in accordance with the laws of the State of ___________, without reference to the principles of conflicts of law. Each Team Member hereby submits itself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive jurisdiction of the federal or state courts located in the State of [insert state], and any courts of appeal therefore, and waives any objection (on the grounds of lack of jurisdiction, or forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. 7.6 This Agreement constitutes the entire agreement between the Team Members and supersedes all prior proposals, communications, representations and agreements, whether oral or written, with respect to the subject matter hereof. The Project Supplements executed in connection herewith from time to time are incorporated into and made a part of this Agreement to the same © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 8 extent as if set forth in full herein; any use of the phrase “this Agreement” shall include, without limitation, such Project Supplements. 7.7 Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions hereof in any other jurisdiction. IN WITNESS WHEREOF, the parties hereby have duly executed this Agreement as of the date set forth above. [insert company name]. _____________________________ By:__________________________ By:___________________________ Name: xxxxx Name: xxxxxx Title: xxxxxxx Title: xxxxxxx © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 9 EXHIBIT A FORM OF PROJECT SUPPLEMENT This Project Supplement dated as of ______________________ supplements the Teaming Agreement dated as of ___________ ___, (date) by and between [insert company name] and ____________________________ (as amended or modified from time to time, the “Teaming Agreement”). Capitalized terms used herein and not otherwise defined in this Project Supplement shall have the meanings given them in the Teaming Agreement. In the event there is any conflict or inconsistency between any provision of the Teaming Agreement and any provision of this Project Supplement, the provisions of this Project Supplement shall govern and control. (a) The Team Members hereby agree that the Opportunity with ___________________ (the “Customer”) and the related project described below shall become a Joint Opportunity subject to the Teaming Agreement: [description of the Opportunity] (b) The prime contractor with respect to the Joint Opportunity and the related joint project shall be ____________________ (the “Prime Contractor”). The subcontractor with respect to the Joint Opportunity shall be ____________________ (the “Subcontractor”). The allocation of work and responsibility between the Team Members in executing the work to be performed under the Customer Contract if awarded by the Customer in connection with the Joint Opportunity is set forth on Exhibit 1 hereto. (c) The Team Members hereby further agree that in addition to the terms and conditions contained in the Teaming Agreement, their respective rights and obligations with respect only to the Joint Opportunity and the related joint project shall also be governed by the following additional terms and conditions: [describe any additional terms and conditions, such as proposal obligations and duties] (d) Except as expressly provided in Section 3 of the Teaming Agreement, all rights and obligations of the Team Members under the Teaming Agreement (including, without limitation, this Project Supplement) with respect to the Joint Opportunity and Joint Project specified in this Project Supplement shall terminate as follows: [describe termination arrangements] (e) This Agreement may be signed in any number of counterparts, each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. IN WITNESS WHEREOF, the parties hereby have duly executed this Agreement as of the date set forth above. [insert company name] _____________________________ By:__________________________ By:___________________________ Name: xxxxxxxxxx Name: xxxxxxxxxxxxxx © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 10 Title: xxxxxxxxxxxxxxxxxxx Title: xxxxxxxxxxxxxxx © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 11
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