SAIC - EduLink Alliance Agreement
This Alliance Agreement ("Agreement"), effective May 15, 2001, between EduLink,
Inc. (hereinafter "EduLink") and Science Applications International Corporation,
(hereinafter "SAIC").
The above parties each posses unique capabilities and desire to make this
Agreement to:
A. Jointly investigate and evaluate business opportunities involving the
EduLink platform technology and related integration services to be
procured by various customers;
B. Develop a framework to jointly pursue specific business opportunities;
The following Agreement is made based on the above facts and circumstances:
1. General Purpose of Agreement.
The purpose of this Agreement is to outline the manner in which the parties will
identify, pursue and develop opportunities for EduLink Technology.
2. Term of Agreement.
The term of this Agreement shall be one (1) year from the date first written
above. This Agreement shall automatically continue for an additional period of
one (1) year unless either party provides thirty (30) days prior written notice
of its desire not to extend the Agreement.
3. Nonexclusive Agreement.
Except as may be set out elsewhere in this Agreement, the parties shall not be
precluded from independently marketing, participating in or contracting any
business whether related to this Agreement or otherwise.
4. Point of Contact
The parties agree to designate a relationship point of contact that shall make a
good faith effort to control and direct their respective efforts so that they
conform to this Agreement. In addition, it is understood that SAIC may designate
separate individuals to direct its activities for specific vertical markets or
specific SAIC customers. Such SAIC vertical market and customer points of
contact shall be designated as SAIC Engagement Manager(s) and included in the
Management Committee described at paragraph 3.1 of Annex 1.
5. General Terms of Agreement
The general terms shall be as set out at Annex 1, attached hereto and made a
part hereof.
6. Target Markets and Customers
The Target Markets and Customers shall be as set out at Annex 2, attached hereto
and made a part hereof. The parties agree that Annex 2 is an initial
identification of Target Markets and Customers and may, by written agreement, be
expanded to include additional markets and customers.
7. Specific Opportunities
The parties shall enter into separate agreements defining each party's
respective role, responsibilities, scope of work and terms applicable to each
specific opportunity. The first of such agreements may be the establishing of
EduLink system licensing agreements for the purpose of co-marketing.
8. Entire Agreement
The terms and conditions of this Agreement, including any attachments hereto
constitutes the entire agreement between the parties and supersedes all previous
communications, representation, or agreements, either written or oral, with
respect to the subject matter hereof.
For EduLink, Inc. For: Science Applications
International Corp.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 1
General Terms of Alliance Agreement
1.0 Legal Effect of Alliance Agreement
The relationship of the parties shall be that of independent contractors,
and nothing in this Alliance Agreement shall be deemed to constitute the
parties as partners, joint venturers, co-owners, joint employers, or
otherwise as participants in a joint or common undertaking. Nothing in
this Alliance Agreement shall be deemed to give either party any power to
direct or control any activities, or any power to bind or obligate the
other. No employee of one party shall be deemed an employee of the other.
2.0 Costs and Expenses
Except as otherwise specifically provided in this Agreement or under
subsequent written agreement, each party shall assume and discharge for
its own account all cost, expenses, and charges necessary or incidental
to its operations under this Agreement, and shall indemnify and save the
other party harmless from and against all such costs, expenses and
charges and all claims, promises, guarantees, debts, obligations,
expenses, and liabilities of any nature and kind made, incurred,
contracted or created by it which were not specifically assumed in
advance by written agreement of the other party.
3.0 Implementation
3.1. Management Committee. The parties will promptly establish a Management
Committee, to refine and further define joint service offerings, target
markets and customers. The Management Committee membership may be
increased or decreased at the discretion of the parties but, at all
times, shall include one person from each party with designated authority
to make decisions, commit resources and direct activities for the party.
Such activities shall include, without limitation, entering into and
directing the party's performance under subsequent agreements for
specific opportunities and engagements.
3.2. Development and Use of Marketing Materials. In the event the parties
agree to work together to develop marketing materials that describe the
joint service offering and the relationship between EduLink and SAIC, the
parties agree that funding and ownership for the jointly developed
marketing materials shall be on a 50:50 basis, unless other arrangements
are negotiated in a particular case. Further, the parties agree to use
the developed marketing materials only for marketing and selling to
targeted customers or targeted markets as described in Annex 2.
3.3 Joint Marketing. The parties will identify certain large strategic
opportunities such as a state or a large school district for joint
marketing. For these major initiatives, the parties shall agree up front
to co-market and share the outcome of the effort at pre-determined splits
of revenue, profit and, to the extent possible, actual labor. The parties
will contribute to these joint agreements at a level commensurate with
their anticipated gain.
4.0 Confidentiality
The parties shall treat all proprietary and confidential information in
accordance with the Non-Disclosure Agreement between the parties dated
9/21/99, incorporated herein and made a part hereof as if set out in full
text.
5.0 Press Releases
Neither party will make any press releases without the prior consent of
the other unless required by law. Annex 3 sets forth an initial general
press release that may, upon signature of this Agreement, be released by
either party without further consultation.
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 1
General Terms of Alliance Agreement
6.0 Notices
All notices, certificates, acknowledgments and other reports hereunder
shall be in writing and shall be deemed properly delivered when duly
mailed by registered letter to the other party at its address as follows,
or to such other address as either party may, by written notice,
designate to the other.
EduLink SAIC
000 Xxxxx Xxxxxxx Xxxxx, #000 000 Xxxxx X. Xxxxxx Xxxx. #000
Xxxxxxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxxxxxx, CEO Attn.: Xxxxx Xxxxx, Corp Vice
President
7.0 Intellectual Property
7.1. EduLink and SAIC shall each retain ownership of, and all right, title and
interest in and to, their respective, pre-existing intellectual property
(IP) including without limitation, inventions, patents, works of
authorship, copyrights and trade secrets, and no license therein, whether
express or implied, is granted by this Agreement or as a result of the
Services performed hereunder. To the extent the parties wish to grant to
the other rights or interests in pre-existing IP, separate license
agreements on mutually acceptable terms will be executed.
7.2. Any invention (whether patentable or not), work of authorship, or other
IP created by either party in connection with this Agreement shall be
owned by that party, and all right, title and interest therein shall be
retained by that party.
7.3. Any invention (whether patentable or not), work of authorship, or other
IP jointly developed by the parties under this Agreement or subsequent
agreements shall be shared by the parties on an equitable basis subject
to the parties entering into separate license agreements on mutually
acceptable terms.
7.4. Nothing contained in this Agreement shall, by express grant, implication,
estoppel or otherwise, create in either party any right, title, interest,
or license in or to the inventions, patents, technical data, computer
software, or software documentation of the other party.
7.5. Notwithstanding the foregoing to the contrary, any provision of this
Agreement relating to ownership of IP shall be subject to the provisions
of the agreement between EduLink and SAIC entitled "Contract Agreement
EduLink/SAIC-2000-001" and dated October 1, 1999 (the "Contract
Agreement"), as well as any renewals or extensions of such Contract
Agreement, with respect to EduLink's ownership of IP created by SAIC for
EduLink and/or jointly by EduLink and SAIC for EduLink pursuant to task
orders issued in accordance with said Contract Agreement.
8.0 Personnel
8.1. Personnel will at all times be considered employees or agents of the
party providing such personnel and will not for any purpose be considered
employees or agents of the other party. Each party shall assume full
responsibility for the actions or inaction of the personnel it provides,
and shall be solely responsible for the supervision, direction, control,
salaries, workers' compensation coverage, disability and other insurance,
benefits, and all other obligations required by law relating to its
personnel.
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 1
General Terms of Alliance Agreement
9.0 Representation
Each party represents and warrants to the other that it has the right to
use, disclose and disseminate any information, specifications and data
that it provides or will provide to the other party under this Agreement
or any subsequent agreement. Each party further represents and warrants
to the other that possession and use of that information, specifications
and data by the other party under the terms and conditions of this
Agreement will not constitute an infringement upon any patent, copyright,
trade secret, or other intellectual property right of any third party.
10.0 Limitation of Liability
10.1. In no event shall either EduLink or SAIC be liable to the other for any
special, indirect, incidental or consequential damages (including, but
not limited to, lost profits, lost business opportunities, loss of use or
equipment down time, and loss of or corruption to data) arising out of or
relating to this Agreement, regardless of the legal theory under which
such damages are sought, and even if the parties have been advised of the
possibility of such damages or loss.
10.2. Any claim by SAIC against EduLink relating to this Agreement, other than
in warranty, must be made in writing and presented to EduLink within one
year after expiration of this Agreement or any other agreement between
the parties to which the claim relates.
11.0 Third Parties
11.1. SAIC agrees that EduLink shall not be obligated to third parties with
whom SAIC may make agreements or to whom SAIC may direct payments without
EduLink prior written consent. SAIC covenants not to make any
representations, directly or by implication, that any such obligation
exists or will be created.
11.2. SAIC shall not, in connection with performance under this Agreement, make
any payments to third parties if such payment would be in violation of
law. Further, SAIC shall make no payments on EduLink's behalf for
political purposes or to obtain political influence. SAIC acknowledges
that no employee of EduLink or of any of its divisions, subsidiaries or
parent corporation has any authority to give any direction, written or
oral, in connection with the making of any commitment by SAIC to any
third party in contravention to the foregoing.
11.3. EduLink and SAIC expressly exclude any and all third parties from the
benefits of this Agreement. In the event that SAIC furnishes any EduLink
work product to a person who is not a party to this Agreement, SAIC
agrees to defend, indemnify, and hold harmless EduLink from and against
all claims, damages, losses, costs and expenses (including reasonably
attorney's fee) of actions brought by third parties, and arising out of
or relating to such party's use or distribution of, or reliance upon,
EduLink's work product.
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 1
General Terms of Alliance Agreement
12.0 Non-Solicitation of Employees
During the period of this Agreement, including any extension or
modification thereof, both parties agree not to solicit for employment,
knowingly hire or otherwise retain any technical or professional
employees of the other party assigned to work on this project without the
prior written approval of the other party. This clause shall in no way be
construed to restrict, limit, or encumber the rights of any employee
granted by law.
13.0 Non-Waiver of Rights
The failure of either party to insist upon performance of any provision
of this Agreement, or to exercise any right, remedy or option provided
herein, shall neither be construed as a waiver of the right to assert any
of the same or to rely on any such terms or conditions at any time
thereafter, nor in any way affect the validity of this Agreement.
14.0 Severability
If any covenant, condition, term, or provision contained in this
Agreement is held or finally determined to be invalid, illegal, or
unenforceable in any respect, in whole or in part, such covenant,
condition, term, or provision shall be severed from this Agreement, and
the remaining covenants, conditions, terms and provisions contained
herein shall continue in force and effect, and shall in no way be
affected, prejudiced or disturbed thereby.
15.0 Conflicting Provisions
This Agreement and all of the exhibits, schedules, and documents attached
hereto are intended to be read and construed in harmony with each other,
but in the event any provision in any attachment conflicts with any
provision of this Agreement, then this Agreement shall be deemed to
control, and such conflicting provision shall be deemed removed and
replaced with the governing provision herein.
16.0 Assignment
Neither party may sell, assign, transfer, or otherwise convey any of its
rights or delegate any of its duties under this Agreement without the
prior written consent of the other party, which consent may not be
unreasonably withheld.
17.0 Disputes and Applicable Law
SAIC and EduLink agree to first enter into negotiations to resolve any
controversy, claim or dispute ("dispute") arising under or relating to
this Agreement. The parties agree to negotiate in good faith to reach a
mutually agreeable resolution of such dispute within a reasonable period
of time. If good faith negotiations are unsuccessful, SAIC and EduLink
agree to resolve the dispute by binding and final arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. The arbitration shall take place
in San Francisco, California. The arbitrator(s) shall be bound to follow
the provisions of this Agreement in resolving the dispute, and may not
award punitive damages. The decision of the arbitrator(s) shall be final
and binding on the parties, and any award of the arbitrator(s) may be
entered or enforced in any court of competent jurisdiction.
This Agreement shall be governed by and construed under the laws of the
State of California, without regard to its laws relating to conflict or
choice of laws.
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 1
General Terms of Alliance Agreement
18.0 Miscellaneous
18.1. The captions and headings used in this Agreement are solely for the
convenience of the parties, and the text of the Agreement shall govern in
the event of any conflict or ambiguity. Each party has read and agreed to
the specific language of this Agreement; therefore no conflict,
ambiguity, or doubtful interpretation shall be construed against the
drafter.
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 2
Target Markets and Customers
Initially, this Alliance Agreement shall be restricted to the following targeted
Market Areas and Customers:
1. MARKET AREAS
Public Schools (K-12)
Private Schools (K-12)
State Departments of Education
Charter Schools (K-12)
Charter School Management Companies
Instructional Technology Companies
Higher Education (Public and Private)
US Department of Education
International K-12 Educational Initiatives
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 2
Target Markets and Customers
CUSTOMERS
The following identification of potential Customers is an initial
list based on existing SAIC customers or marketing initiatives. It
is understood that this list may be changed over the term of this
Agreement. It is further understood that SAIC will identify and
designate an SAIC Engagement Manager who shall be SAIC's point of
contact with such Customer(s). SAIC will identify its Engagement
Manager(s) prior to pursuing any joint marketing or sales activity
with the below identified Customer(s). Such SAIC Engagement
Manager(s) shall, upon designation by SAIC, be included in the
Management Committee described at paragraph 3.1 of Annex 1 to this
Agreement.
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Customer SAIC Engagement Manager
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State of California Xxxxx Xxxx / Xxxxx Xxxxxxx
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State of Washington Xxxxx Xxxx / Xxxxx Xxxxxxx
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State of Maryland Xxxxxx X. Xxxxx
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US - Dept. of Education Xxxxx Xxxx / Xxxxxx X. Xxxxx
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City of New York Xxxxxx X. Xxxxx
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US - State & Local Xxxxx Xxxx / Xxxxx Xxxxxxx
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TBD - San Diego Schools TBD - Xxx Poannessa
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TBD - State of Pennsylvania TBD - Xxxxx Xxxx
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TBD - Pennsylvania Local School Districts TBD - Xxxxx Xxxx
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TBD - State of New Jersey TBD - Xxxxx Xxxx
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TBD - State of Delaware TBD - Xxxxx Xxxx
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TBD - New Jersey Local School Districts TBD - Xxxxx Xxxx
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TBD - Delaware Local School Districts TBD - Xxxxx Xxxx
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
Alliance Agreement
Annex 3
Press Release
TO BE DETERMINED.
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This document is SAIC Confidential Information. Disclosure is prohibited without
SAIC's written consent.
