VIEWS: 435 PAGES: 13 CATEGORY: Forming a Joint Venture POSTED ON: 1/12/2011
This is an agreement that creates a working relationship between two companies whereby they agree to work together in order to accomplish a certain business goal or objective. This agreement can be modified to fit the unique needs of the contracting parties by providing four (4) different options for customizing the agreement. This document is ideal for small businesses that want to work together to achieve a certain business goal or objective.
This is an agreement that creates a working relationship between two companies whereby they agree to work together in order to accomplish a certain business goal or objective. This agreement can be modified to fit the unique needs of the contracting parties by providing four (4) different options for customizing the agreement. This document is ideal for small businesses that want to work together to achieve a certain business goal or objective. TEAMING AGREEMENT THIS TEAMING AGREEMENT (“Agreement”) is made as of __________, 200_ (the “Effective Date”),by and between _______________________ (the "Company") and _______________________ (the "Client"), with reference to the following facts: RECITALS: ___________________________, a corporation organized and existing under the laws of ________________, having its principal offices at ___________________________ (hereinafter referred to as “Company”) AND ____________________ _, a corporation organized and existing under the laws of __________, with principal offices located at _______________________________ (hereinafter referred to as “Client”). (Company and Client are each referred to as a “Party” and jointly referred to as the “Parties”.) OPTION 1: A. Client and Company are interested in providing certain _________________ [Services/Supplies] for __________________[insert Project Description] (“Project”) developed by __________________________(the “Customer”), incorporating Client’s [Services/Supplies] and the Company’s [Services/Supplies] by jointly submitting proposals (the “Proposals”) to the Customer, and if the Proposals are selected for the Project, in meeting the requirements of the Customer on the basis of each Party’s expertise, as specified herein; and B. In order to commence immediately their cooperation with respect to the Proposals and the Project(s), Company and Client wish to set forth in this Agreement the manner in which they will work together; OPTION 2: A. Company and Client wish to enter into this Agreement for the purpose of a possible cooperation in submitting a joint proposal in response to an RFP issued by _________________________ (the “Customer”) for _____________ [insert description of the RFP] (the “Project”), and in the event Company and Client are selected by the Customer, for a possible cooperation in providing certain [Services/Supplies] for the Project. This Agreement provides a framework enabling the Parties to cooperate immediately for the submission of the proposal in response to the RFP until a formal subcontracting or supplier agreement is entered into between the Parties (the “Subcontracting Agreement” or “Supplier Agreement”). Such agreement, following its execution by the Parties, shall replace and supersede this Agreement. Client shall have the right to inform Customer of the joint relationship as set forth in this Agreement. OPTION 3: A. Company and Client understand that _________________________(the “Customer”) has issued a request for proposal (the “RFP”) for ______________________(the “Project”); and © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 B. In response to the RFP, Company and Client are interested in cooperating in submitting a proposal to the Customer for the Project (the “Proposal”), as specified in the functional scope and/or products listed in Exhibit A and the roles and responsibilities allocation specified in Exhibit B, and if the Proposal is selected by the Customer for such Project, the Parties shall further cooperate to provide products and services to the Customer as set forth in the Proposal; and 1. C. This Agreement provides a framework enabling the Parties to cooperate immediately for the submission of the Proposal for the RFP pursuant to the terms set forth herein. OPTION 4: A. Client provides___________________[insert description of Client’s business] (the “Client’s Services and/or Supplies”); and B. Company provides ________________________________[insert description of Company's business] (the “Company’s Services and/or Supplies”); and C. In response to an RFP issued by_____________________(“Customer”) for ______ __[Insert description of services and/or supplies requested] Client would like to submit a proposal (the “Proposal”) to Customer on the basis of the Client’ Services and/or Supplies and the Company’s Services and/or Supplies; and D. This Agreement provides a framework enabling the Parties to cooperate immediately for the submission of the Proposal pursuant to the terms set forth herein and, if the Proposal is selected by Customer, for the project specified in the Proposal (the “Project”); NOW, THEREFORE, the Parties agree as follows: 1. Relationship of the Parties 1.1. Company and Client agree to work together and to cooperate with each other, on a non- exclusive basis, for the purpose of preparing and submitting the Proposal, and, if the Proposal is selected by the Customer, the Parties will cooperate in carrying out the Project in accordance with the general guidelines set forth herein and in the Proposal. 1.2. For the purpose of the Project and throughout its entire duration, Client shall be the prime contractor, and Company will be a subcontractor to Client for Company’s portions of the Project. Company’s obligations with respect to performance of the Project shall be as specified in this Agreement and in the subcontracting agreement and/or supplier agreement to be executed between Client and Company for the Project (“Subcontracting Agreement” and/or “Supplier Agreement”). 2. Project Management and Submission of the Proposal 2.1. After execution of this Agreement, the Parties shall schedule an initial meeting based on the Customer’s requirements to determine the Project preparation work and related activities. Each Party will appoint one person to be its bid manager for preparing the Proposal. The respective bid managers will gather all of the Party’s resources (information, personnel, etc.) required for preparing the Proposal, making presentations to the Customer and attempting to persuade the Customer to award the Project to Company and Client in accordance with the relationship between Company and Client as specified in this Agreement, and will be responsible for communications between the Parties for purposes of such Project. Client shall have the right to request Company’s focal point to replace the people working on the Project that are not suitable to work on the Project. 2.2. Company and Client shall each prepare their part of the Proposal and approve the © Copyright 2011 Docstoc Inc. registered document propriet, copy not 3 Proposal prior to submission to the Customer. The details of the services to be provided by Client and Company shall be agreed upon and specified during preparation of the project plan before submitting the Proposal, based on the allocation of roles and responsibilities agreed between the Parties, as specified in Exhibit B. 2.3. Company and Client will make all reasonably necessary preparations and will perform all reasonably necessary activities to meet Customer’s timetable for submitting the Proposal. 2.4. Without derogating from the provisions of Section 3.3 herein below, Company and Client acknowledge and agree that this Agreement does not require the parties to respond jointly to any future requests for proposals by the Customer or any other potential customers. It is also acknowledged and agreed that Client shall be entitled to submit a separate proposal to the Customer, either alone or with any another party. 3. SUBCONTRACTING AGREEMENT AND CUSTOMER CONTRACT 3.1. In the event the Customer selects the Proposal submitted by Company and Client, the Parties will negotiate and sign in good faith, within thirty (30) days of such selection, the subcontracting and/or supplier agreement on the basis of this Agreement (the “Subcontracting Agreement” and/or “Supplier Agreement”). The Subcontracting and/or Supplier Agreement, following its execution by the Parties, will replace and supersede this Agreement. 3.2. Client shall initiate and lead all negotiations and discussions with Customer and shall sign the prime services agreement with the Customer for the Project (the “Customer Contract”). Company agrees to participate if requested by Client in discussions with the Customer regarding technical and business aspects of Company’s portion of the Project. Company agrees not to have any direct contact or communications with the Customer regarding the Project without Client’s prior consent. The Subcontracting Agreement between Company and Client shall be on back-to-back terms with the Customer Contract (or portions thereof which are relevant to Company’s part of the Project) such that all terms and conditions of the Customer Contract, including orders issued thereunder, which are relevant to Company’s part of the Project, shall apply mutatis mutandis to the supply by Company of its products and/or services, and Company shall be bound by and observe and comply with said terms and conditions. 3.3. Company agrees not to offer products or services to Customer, directly or indirectly, through itself or affiliated companies, relating to the Project. Additionally, for a period of eighteen (18) months from the Effective Date, Company agrees not to offer products or services to Customer or to any of its affiliated companies, directly or indirectly, through itself or any affiliated companies of Company, relating to the Project, unless offered through Client. IF THERE IS A RESALE OF COMPANY’S SYSTEM: 3.4. In the event the Proposal is selected by Customer, Client will be granted the right to purchase the applicable license for the Company System from Company, at a price to be determined by the Parties. The prices for maintenance services relating to the Company System will be agreed to by the Parties. Client will be permitted to resell such license and maintenance to Customer as part of the Project. The price for which Client sells to Customer the license and maintenance for the Company System, and all other prices charged to Customer by Client relating to the Project, will be determined by Client in its sole discretion. 3.5. Company will provide all applicable source code for the Company System to Client, © Copyright 2011 Docstoc Inc. registered document propriet, copy not 4 which Client may provide to Customer as part of the license for the use of the Company System. Company will also provide to Client and/or Customer full documentation, knowledge transfer, training and other assistance (“Services”) requested by Client relating to the customization, implementation, support, maintenance and operation of the Company System. The commercial terms relating to the Services will be agreed to by the parties and specified in the Subcontracting and/or Supplier Agreement. Client and Customer may use and modify the source code of the Company System as may be necessary for the performance of the customization, implementation, support, and maintenance services. Company commits to provide the resources necessary for the provision of all Services. Company acknowledges that the performance of the Project by Company will include working with other third parties identified by Customer and/or Client. 4. Warranty and Liability 4.1. IF THERE IS A RESALE OF A COMPANY SYSTEM: Company warrants to Client that the performance and functionality of the Company System shall be compliant with the Company System documentation and that the Company System will be localized for the U.S. market. Company shall provide all back-to-back warranties, indemnifications and other commitments relating to the Company System and services to be provided by Company required for the Project and required by the Customer or arising under the Customer Contract. 4.2. Company and Client confirm to each other that each Party respectively has the necessary ownership and/or marketing rights to permit it to enter into this Agreement and any ensuing agreements between the parties relating to the Project. Except as expressly set forth herein, the execution of this Agreement shall in no way serve to create, on the part of either Party hereto, a license to use, or any proprietary rights in, the existing products of either Party. 4.3. Company shall be responsible for any liability (including, but not limited to, delays in meeting milestones and damages, if any) to Client arising from its portions of the Project. Company agrees to indemnify Client for any liability toward third parties (including the Customer) and any penalties or damages incurred by Client, arising from a breach of its obligations with respect to the Project. 4.4. Each Party will bear its own costs, risks, and liabilities incurred by it arising out of its obligations and efforts relating to the Proposal and the Project. 4.5. EXCEPT FOR CLAIMS BASED ON BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT OR ANY OTHER BACK-TO-BACK COMMITMENT OF EITHER PARTY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, WHETHER ALLEGED TO BE ATTRIBUTED TO A BREACH OF THIS AGREEMENT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS RESULTING FROM AN ALLEGED BREACH OF THIS AGREEMENT OR FAILURE TO BE AWARDED THE PROJECT, EVEN IF UNDER APPLICABLE LAW SUCH LOST PROFITS WOULD NOT BE CONSIDERED CONSEQUENTIAL OR SPECIAL DAMAGES. 5. Term and Termination 5.1. This Agreement will be effective for a period commencing on the Effective Date and ending __________________) months thereafter. © Copyright 2011 Docstoc Inc. registered document propriet, copy not 5 5.2. This Agreement will terminate immediately upon: (i) Customer’s selection of other third party vendors for the Project; (ii) cancellation of the Customer’s interest in finding solutions in the scope covered by the Project; (iii) the scope of the RFP is altered by the Customer whereby the services/products of one of the Parties is no longer required; (iv) execution of the Subcontracting and/or Supplier Agreement by the Parties; (v) the material breach of this Agreement by either Party, which is not remedied within thirty (30) days after receipt of written notice from the other Party; or (vi) by mutual written agreement of the Parties. 6. GENERAL TERMS AND CONDITIONS 6.1. The Parties to this Agreement are independent contractors, and this Agreement is not intended by the Parties to constitute or create, and shall not constitute or create, a partnership or any entity other than an independent contractor arrangement. The employees of a Party shall not be deemed to be employees of the other Party. 6.2. Neither Party shall have the authority to bind the other or make commitments of any kind for, or on behalf of, the other Party, unless expressly agreed upon in advance and in writing. 6.3. Each party agrees not to hire or otherwise employ any of the other party’s employees or their respective subcontractors' employees, who are assigned full or part-time to activities which are related to the performance of this Agreement, except by written consent of the other party, within one year of such employee or subcontractor's employee ceasing to be involved in the performance of this Agreement. Solely for purposes of this Section 6.3, independent contractors of a party are considered employees of such party. The provisions of this Section shall survive the expiration or termination of this Agreement for any reason and shall remain in full force and effect for a period of one year thereafter. 6.4. Each Party shall comply with all local laws, ordinances, regulations, and codes applicable to its business in the performance herewith including the procurement of any necessary permits and licenses in the relevant jurisdiction. 6.5. This Agreement may not be assigned or otherwise transferred by either Party in whole or in part without the express prior written consent of the other Party. Company however, acknowledges and agrees that Client may assign any of its rights or delegate any of its obligations hereunder to any of its affiliates within the Client group of companies. Any such affiliated company of Client may provide the services and/or the licenses relating to the Project. 6.6. THIS AGREEMENT SHALL BE BINDING UPON THE RESPECTIVE HEIRS, BENEFICIARIES, LEGAL OR PERSONAL REPRESENTATIVES, SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES. COMPANY SHALL NOT, WITHOUT FIRST OBTAINING CLIENT’S WRITTEN CONSENT, ASSIGN OR DELEGATE ITS OBLIGATIONS UNDER THIS AGREEMENT TO OTHERS. 6.7. The Non-Disclosure and Confidentiality Agreement between the Parties dated as of ________ (the “NDA”) a copy of which is attached hereto as Exhibit C, shall govern the use and disclosure of all proprietary or confidential information disclosed by either Party to the other in furtherance of the Proposal and/or the Project and no other purposes whatsoever, including, but not limited to, development, sale or provision of any support or consulting services with respect to products and services that compete with Client’s services and/or supplies, except in cooperation with Client if agreed between the Parties in writing. Each Party agrees not to assign the employees listed on Exhibit D to a project team that is preparing the Proposal, if such response is not with the other Party. This restriction shall terminate upon termination of this Agreement. © Copyright 2011 Docstoc Inc. registered document propriet, copy not 6 6.8. This Agreement (including its Exhibits) constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous oral or written representation with regard to the subject matter hereof. This Agreement shall not be modified except by a written instrument signed by both Parties. 6.9. If any provision of this Agreement is determined to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the Agreement, but rather the Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly. The Parties hereby agree to cooperate to replace the invalid or unenforceable provision(s) with valid and enforceable provision(s) which will achieve the same result (to the maximum legal extent) as the provision(s) determined to be invalid or unenforceable. 6.10. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such Party. 6.11. Any notice, demand or communication which under the terms of this Agreement or otherwise must or may be given or made by either Party shall be in writing and shall be given or made by certified or registered air mail, return receipt requested, facsimile (electronic confirmation required) or any delivery services requiring signature of receipt, addressed to the respective Parties as set forth on the first page of this Agreement or other addresses of which a Party may notify the other Party in writing.. 6.12. Any disclosure or publication of the existence of this Agreement or its contents in whole or in part to third parties other than to Customer shall require the prior written consent of both Parties before such disclosure or publicity. 6.13. Obligations under this Agreement, which by their nature would continue beyond the expiration or ending in any other way of this Agreement shall survive the expiration or ending in any other way of this Agreement. 6.14. Headings used in this Agreement are for convenience only and shall not be used for interpretation purposes. 6.15. This Agreement will be governed by and construed under the laws of _________________________[Insert State] excluding its conflict of laws principles. Any dispute concerning this Agreement which the Parties are not able to resolve within fourteen (14) days of the dispute first arising shall be escalated to their respective vice president in charge of the Project. If such persons are unable to resolve the dispute within an additional period of fourteen (14) days, the dispute shall be escalated to a committee consisting of the Parties’ respective senior vice presidents in charge of the Project. If such committee is unable to resolve the dispute within an additional period of fourteen (14) days, either Party shall be entitled to seek final and binding arbitration through binding arbitration in _________________________ [Insert Location}, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, or if no rules are then in effect by the most comparable rules. The award rendered by arbitration shall be final and binding on the parties and judgment upon the award may be entered in any court having jurisdiction thereof. The expenses of the arbitration shall be borne by the non-prevailing party, or if both parties shall prevail in part, then the expenses of arbitration shall be borne equally between the parties. © Copyright 2011 Docstoc Inc. registered document propriet, copy not 7 IN WITNESS WHEREOF, Company and Client, pursuant to due corporate authority, have caused this Agreement to be signed in their respective names on the date(s) set forth below. ________________ ("Company") ("Client") By: _______________________ By: ________________________ Name: _______________________ Name: ________________________ Title: _______________________ Title: ________________________ Date: _______________________ Date: ________________________ © Copyright 2011 Docstoc Inc. registered document propriet, copy not 8 EXHIBIT A THE CUSTOMERS [FUNCTIONAL SCOPE AND PRODUCTS] [To be added] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 9 EXHIBIT B ROLES AND RESPONSIBILITIES ALLOCATION [To be added] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 10 EXHIBIT C NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT BETWEEN THE PARTIES [Attached after this page] © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 11 EXHIBIT D RESTRICTED EMPLOYEES Company Client To be added To be added © Copyright 2011 Docstoc Inc. registered document propriet, copy not 12
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