Exhibit 10.15
STRATEGIC PARTNERSHIP AGREEMENT
This STRATEGIC PARTNERSHIP AGREEMENT ("Agreement") is made on this 31st
day of May, 2004 between Maximum Dynamics, Inc. (Maximum) and Intesol
Corporation (Intesol) and hereafter referred to collectively as the
"Partners" and individually as "Partner".
RECITALS
The Partners have agreed to share resources and contribute human
capital and technology for the purpose of increasing efficiencies in
marketing, sales and service delivery for both parties.
The Partners consider it agreeable to work through their existing
entities and to hold their business interests in these respective
entities. In doing so, the Partners avoid the necessity of numerous
separate agreements, to maintain the legal title to the respective
business interests in a simple and practicable form, and to facilitate
the collection and distribution of the profits that accrue through
this strategic relationship.
It is therefore agreed that:
1. Purpose. The Partners form this strategic partnership to build
service delivery and product sourcing capabilities for technology
solutions, products and services. As such, the Parties shall work
together to increase efficiencies in marketing, sales, service
delivery and project implementation. The Parties agree to work
together in South Africa and the rest of the Africa Continent and to
explore business opportunities together for joint sales and
prospects. The Parties agree to bid jointly on projects that are
identified and that each Party shall draw upon its resources from
subsidiaries, joint venture and other strategic partners to support
that project. As part of this goal, Intesol hereby appoints Maximum
as its business agent and provider of specialized project management
services with effect 1 June 2004 as set forth in the Project
Management Services Engagement Agreement entered into between
Maximum and Intesol on May 31, 2004.
2. Contributions. Both parties agree to use their current
infrastructure and resources and to work on joint projects with each
project being agreed upon in advance and in writing on a project by
project basis in terms of deliverables, revenue sharing and resource
sharing. This Agreement hereby references Section C of Schedule B in
the Project Management Services Engagement Agreement wherein it is
specified that the revenues generated from this partnership are to
be directed to a joint bank account.
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Contributions from Intesol Contributions from Maximum Dynamics
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- Provide BEE status and - Project Management services at
prospects for solutions Cost price
- Networking in South Africa and - Access to Maximum's "relationship
other countries where Intesol infrastructure" on an as needed
has offices and agreed upon basis
- Provide people and resources - Provide all assistance (turnkey
on a project-by-project basis solution approach that Intesol
at cost paid by Intesol cannot provide) to identified projects
- Provide solutions and products - Bring possible prospects and projects
to specific projects and to the partnership
requirements - PRO function
- Be responsible for - Provide networking and infrastructure
implementation and after sales in other countries where Maximum
support on identified projects Dynamics has offices
- Work on a first right of - Work on a first right of refusal basis
refusal basis for all products for all products and services offered
and services offered by both by both parties and their respective
parties and their respective partners
partners - Manage the strategic and organizational
- Provide extra management planning for Intesol Group of Companies
through various directors on - Technology and Turnkey Solution partner
an as needed basis
- Technology and Turnkey
Solution partner
- Legal services (including IT
Law) at cost price through
Intesol Legal
3. Rights and Entitlement. The Parties agree that the products supplied
by Maximum are the property of Maximum and products supplied by
Intesol are the property of Intesol and that no rights or
entitlement to these products shall exchange hands or transfer to
the other Partner as a result of this agreement.
4. Revenues. The Partners agree to share in the revenues generated from
mutual cooperation and shall split revenue from sales based on
agreements that are entered to between both parties as set forth in
Schedule A. Upon termination of this Agreement, the sharing of
revenues, as set forth in each agreement, shall cease to be in
effect. All sales in the pipeline and projects in progress at the
time of termination, however, shall be included in the revenue
sharing agreement unless otherwise expressly agreed upon in writing
by both parties.
5. Term. This Agreement shall commence upon the Initial Date ("Initial
Date") as first set forth above in this agreement and shall be in
effect for twelve months from this date. At the end of the twelve
month period, the agreement shall automatically renew unless
modified or changed in writing by both Parties.
6. Expenses. Each Partner shall be responsible for its own expenses
unless expressly agreed to by both parties and mutually approved
beforehand. Should the Parties agree that Maximum shall compensate
Intesol, its management, partners or affiliates for bonuses or other
additional expenses as agreed upon by both Parties beforehand,
Maximum shall retain in its sole discretion the right to make such
payment in either cash or with shares of its Common Stock and that
said shares may be restricted in accordance with Rule 144 of the
Exchange Act of 1933.
7. Liability. Each Partner shall be liable only for his own willful
misfeasance and bad faith, and no one who is not a party to this
Agreement shall have any rights whatsoever under this Agreement for
any action taken or not taken by either Partner except as permitted
by law in South Africa.
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8. Disclosure of Material Events. Each Partner agrees to promptly
disclose to the other Partner those events/discoveries that are
known and/or anticipated that may conceivably have an impact on the
business operations, future business, or public perception. Both
Partners agree to such disclosure, as this may have a material
impact on the ability and effectiveness of the services rendered by
the other Partner.
9. Indemnification. Each Partner agrees to indemnify and hold harmless
the other Partner against any losses, claims, damages, liabilities
and/or expenses (including any legal or other expenses reasonably
incurred in investigating or defending any action or claim in
respect thereof) to which the other Partner is willing and capable
of providing services on a "Best Efforts" basis. Each Partner cannot
be held liable for any activity unless it can be shown that this
activity comes as a direct result of willful, negligent,
inappropriate and illegal representation or misrepresentation by the
offending Partner.
10. Conflict of Interest. Each Partner shall be free to perform
services for other persons. Each Partner will notify the other
Partner of its performance of services for any other client that
could conflict with its obligations under this agreement.
11. Arbitration and Attorneys Fees. The Partners agree that any
dispute, claim, or controversy concerning this Agreement or the
termination of this Agreement, or any dispute, claim or controversy
arising out of or relating to any interpretation, construction,
performance or breach of this Agreement, shall be settled by
arbitration to be held in Cape Town, South Africa in accordance with
the rules then in effect of the primary Arbitration Association in
South Africa. The arbitrator may grant injunctions or other relief
in such dispute or controversy. The decision of the arbitrator shall
be final, conclusive and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator's decision in any court
having jurisdiction. The Partners will pay the costs and expenses of
such arbitration in such proportions as the arbitrator shall decide,
and each Partner shall separately pay its own counsel fees and
expenses.
12. Termination. This Agreement shall terminate and the obligations
of each Partner shall be deemed completed on the happening of either
of the following events: (a) termination by mutual assent of both
Partners; or (b) the violation of this agreement by either Partner.
13. Non-Disclosure. Each Party agrees that the other party (the
"Disclosing Party") has disclosed or may disclose information
relating to (i) software/hardware products and process intelligence
or (ii) the Disclosing Party's business (including, without
limitation, computer programs, names and expertise of employees and
consultants, know-how, formulas, processes, ideas, inventions
(whether patentable or not) schematics and other technical,
business, financial, customer and product development plans,
forecasts, strategies and information), which to the extent
previously, presently, or subsequently disclosed to the Receiving
Party is hereinafter referred to as "Proprietary Information" of the
Disclosing Party. Notwithstanding the foregoing, nothing will be
considered "Proprietary Information" of the Disclosing Party unless
either (1) it is first disclosed in tangible form and is
conspicuously marked "Confidential," "Proprietary" or the like or
(2) it is first disclosed in nontangible form and orally identified
as confidential at the time of disclosure and is summarized in
tangible form conspicuously marked "Confidential" within 30 days of
the original disclosure. In consideration of the parties'
discussions and any access the Receiving Party may have to
Proprietary Information of the Disclosing Party, the Receiving Party
hereby agrees as follows:
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a. to hold the Disclosing Party's Proprietary Information in
confidence and to take reasonable precautions to protect such
Proprietary Information (including, without limitation, all
precautions the Receiving Party employs with respect to its
confidential materials);
b. to not divulge any such Proprietary Information or any
information derived therefrom to any third person unless
authorized by the Disclosing Party;
c. not to make any use whatsoever at any time of such Proprietary
Information except for the purposes as set forth in this
Agreement; and
d. not to copy or reverse engineer any such Proprietary Information.
This non-disclosure shall be in effect throughout the term of this
Agreement and shall extend for 12 months after termination of this
Agreement.
14. Non-Compete. Each Partner hereby agrees not to directly or
indirectly compete with the business of the other Partner and its
successors without written permission during the period of this
Agreement and for a period of two years following termination of
this Agreement. The term "non-compete" as used herein shall mean
that each Partner shall not own, manage, operate, consult or be
engaged in a business substantially similar to, or competitive with,
the present business of the Company or such other business activity
in which the Company may substantially engage during the term of
this Agreement.
15. Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT
WILL BE GOVERNED BY THE LAWS OF SOUTH AFRICA IN THE JURISDICTION OF
CAPE TOWN. EACH PARTNER HEREBY EXPRESSLY CONSENTS TO THE PERSONAL
JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN XXX
XXXXXXXXXXXX XX XXXX XXXX, XXXXX XXXXXX FOR ANY LAWSUIT FILED THERE
AGAINST ANY PARTY TO THIS AGREEMENT BY ANY OTHER PARTY TO THIS
AGREEMENT CONCERNING THE STRATEGIC PARTNERSHIP OR ANY MATTER ARISING
FROM OR RELATING TO THIS AGREEMENT.
In witness whereof the Partners have signed and sealed this Agreement
as of this 1st day of June, 2004.
Intesol Corporation (Pty) Ltd. Maximum Dynamics, Inc.
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By: /s/ By: /s/
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Xxxxx xx Xxxxx Xxxx Xxxxxx
Managing Director Chief Executive Officer
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SCHEDULE A
REVENUE AND PROFIT SHARING
As set forth herein and in this Agreement, the Partners agree to split
revenue generated from cooperation as specified below. The pricing in
this Exhibit is subject to change and can be modified by either
Partner as long as the other Partner agrees in writing to the proposed
price change.
1. Project Management Structure. Partners agree that each Maximum
project will be secured either by Maximum's Project Management
Services Division or one of Maximum's subsidiaries (hereafter
referred to as "Maximum"). Therefore, 100% of each contract shall
flow through Maximum and payments from that revenue flow shall then
be made to INTESOL as set forth in item 3 below.
2. Pricing. Partners must agree on pricing before quotations are
presented to customers. All sales agents or value added resellers
must have the approval from both Partners before a project bid is
submitted to the potential customer.
3. Revenue Sharing. Since each project will require different workloads
and contributions from each Partner, each project will inevitably
vary in terms of the exact percentages that are allocated to each
Partner under this revenue sharing Agreement. Each project shall be
jointly agreed upon beforehand in writing by both Parties in terms
of pricing and revenue sharing prior to any project bid or proposal
being submitted. However, in order to establish general parameters
and minimum thresholds by which the Parties can operate, the Parties
agree as follows (unless modified in writing for a specific project
bid or proposal):
For Revenue Received From Projects Supplied By Maximum
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a. Maximum shall book 100% of the gross revenues
b. Maximum shall pay to INTESOL the cost of project support and/or
implementation plus twenty percent (20%)
For Revenue Received From Projects Supplied By INTESOL
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a. Maximum shall book 100% of the gross revenues
b. Maximum shall retain a minimum of fifteen percent (15%) of the
gross profit
4. Customer Relationships. Both Parties agree that the Party supplying
the customer agreement (hereafter referred to as "Supplying
Partner") owns the relationship with that customer and that the
other Party shall not deal with that customer directly unless agreed
to beforehand by the Supplying Partner. Contact with the customer
shall be established and managed by the appointed project liaison
for that customer by the Supplying Partner unless otherwise
specified in writing by the Supplying Partner.
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