Exhibit 10.22
AMENDED AND RESTATED JOINT MARKETING AGREEMENT
THIS AMENDED AND RESTATED JOINT MARKETING AGREEMENT (the "Agreement"), dated as
of July 1, 1997 is between ALLIN COMMUNICATIONS CORPORATION ("Allin"), a
Delaware corporation with its principal offices at 000 Xxxxxxxxx Xxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, and ELECTRONIC DATA SYSTMES
CORPORATION ("EDS"), a Delaware corporation with offices at 0000 Xxxxxx Xxxxx,
Xxxxx, Xxxxx 00000.
WHEREAS, Allin and EDS entered into that certain Joint Marketing Agreement
dated January 1, 1997 (the "Original Marketing Agreement"); and
WHEREAS, Allin and EDS desire to amend and restate the Original Marketing
Agreement in its entirety as set forth below; and
NOW, THEREFORE, Allin and EDS hereby agree as follows:
1. Intent of Parties. EDS' Global Travel Services Industry Strategic
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Business Unit ("GTSI Business Unit") and Allin desire to establish an
arrangement whereby each party will cooperate with the other to enhance
their respective abilities to market their respective businesses which may
include jointly marketing the Allin Media and Information Platform (the
"Allin Platform"), which platform is a client/server environment and resides
upon the Windows NT operating system and utilizes the Microsoft SQL server
database engine and Allin's interactive television and digital imaging
applications are designed as direct extensions of the Microsoft BackOffice
suite.
2. Agreement. During the term of this Agreement, EDS and Allin will have the
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rights and obligations set out in this Agreement.
3. Term. The term of this Agreement will commence of the date of this
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Agreement (the "Effective Date"), and will end on the ten year anniversary
of the Effective Date, unless earlier terminated in accordance with the
provisions of this Agreement.
4. Marketing Activities. The GTSI Business Unit may market the Allin Platform
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during the term of this Agreement for interactive television prospects and
corporate and consumer digital photography prospects in the travel services
industries and may propose the Allin Platform to all such prospects for whom
the GTSI Business Unit believes that the Allin Platform is appropriate.
5. Payments. If EDS identifies a potential prospect for the Allin Platform,
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the parties will meet to discuss, in good faith, appropriate compensation
for EDS, and related software licensing, service and maintenance agreements.
If Allin identifies a potential prospect for EDS services, the parties will
meet to discuss, in good faith, appropriate compensation for Allin.
Notwithstanding the foregoing, Allin recognizes that EDS is in the business
of providing information technology services to its customers and the
parties agree and acknowledge that the requirements of certain third-party
customers may necessitate use of a media and information platform other than
the Allin Platform.
6. Confidentiality. Each party agrees that during the term of this Agreement
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and for a period of two (2) years thereafter, such party shall use the same
means it uses to protect its own confidential proprietary information, but
in any event not less than reasonable means, to prevent the disclosure and
to protect the confidentiality of both (i) written information received from
the other party which is marked or identified as confidential, and (ii) oral
or visual information identified as confidential at the time of disclosure
which is summarized in writing and provided to the other party in such
written form promptly after such oral or visual disclosure ("Confidential
Information"). The foregoing shall not prevent either party from disclosing
Confidential Information which belongs to such party or is (i) already known
by the recipient party without an obligation of confidentiality other than
under this Agreement, (ii) publicly known or becomes publicly known through
no unauthorized act of the recipient party, (iii) rightfully received from a
third party, (iv) independently developed by the recipient party by persons
without access to or use of the other party's Confidential Information, (v)
disclosed without similar restrictions to a third party by the party owning
Confidential Information, (vi) approved by the other party for disclosure,
or (vii) required to be disclosed pursuant to a requirement of a
governmental agency or law so long as the disclosing party provides the
other party with notice of such requirement prior to any such disclosure.
Each party represents that is has the right to disclose information that it
has made and will make available to the other hereunder. All tangible forms
of Confidential Information owned by a part will be returned to the owner or
destroyed upon expiration or termination of this Agreement. In addition to
the foregoing, EDS and Allin acknowledge and agree that all strategies,
techniques, concepts, materials, and ideas developed jointly or individually
by either party in connection with this Agreement shall be deemed "Joint
Confidential Information" if so designated by either party. Such Joint
Confidential Information shall be subject to the terms of this Section 7
unless otherwise agreed to by the parties in writing.
7. Termination. Either party shall be entitled to terminate this Agreement
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at any time upon thirty (30) days prior written notice to the other party.
8. Media Releases. All media releases, public announcements and public
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disclosures by Allin or EDS or their respective employees or agents relating
to this Agreement including without limitation promotional or marketing
material (but not including any announcement intended solely for internal
distribution at Allin or EDS, as the case may be) shall be coordinated with
and approved by Allin and EDS prior to the release thereof. In addition, any
information regarding EDS or describing the relationship between EDS and
Allin to be included in any offering materials, registration statements, or
other related materials is subject to EDS' written approval prior to its
use.
9. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws, other than choice of law rules, of the
Commonwealth of Pennsylvania.
10. Force Majeure. Each party shall be excused from performance hereunder for
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any period and to the extent that it is prevented from performing pursuant
hereto, in whole or in part, as a result of delays caused by the other or
third parties or an act of God, war, civil disturbance, court order, labor
dispute, or other cause beyond its reasonable control, including failures or
fluctuations in electrical power, heat, light, air conditioning or
telecommunications equipment.
11. Binding Nature and Assignment. This Agreement shall be held binding on the
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parties hereto and their respective successors and assigns, but neither
party may, nor shall have the power to, assign this Agreement without the
prior written consent of the other.
12. Employees. Unless otherwise agreed to in writing, the parties hereto
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agree that during the term of this Agreement and for a period of two (2)
years after the expiration or termination of this Agreement, neither party
shall employ nor solicit for employment any person or persons employed by
the other, working under the Agreement or any contract and/or subcontract
that may be awarded as a result of this Agreement.
13. No Third Party Beneficiary. Nothing in this Agreement may be relied upon or
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shall benefit any party other than the parties hereto.
14. Relationship of Parties. Each of the parties will act as, and will be,
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independent in all aspects of their performance of this Agreement. Neither
party will act or have authority to act as an agent for the other party for
any purpose whatsoever. Except as expressly provided in this Agreement,
nothing will constitute either party as agent for the other or either party
the authority to make representations or agreements on behalf of the other,
and each party covenants not to make any representations or to take any
actions inconsistent with the foregoing. Nothing in this Agreement will be
deemed to constitute or create a joint venture, partnership,
pooling arrangement, contractor arrangement or other formal business entity
or fiduciary relationship between EDS and Allin, and nothing in this
Agreement shall be construed as providing for the sharing of profits or
losses arising out of the efforts of either Allin or EDS under this
Agreement.
15. Notices. All notices, requests, claims, demands, designations, approvals,
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consents, acceptance and other communications under this Agreement will be
in writing and will be deemed to have been duly given if (a) delivered
personally, (b) sent by express delivery services or certified mail, postage
prepaid, or (c) sent by facsimile, together with a hard copy by express
delivery service, to the parties at the addresses or facsimile numbers, as
the case may be, as follows:
If to EDS:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx X0-0X-00
Xxxxx, Xxxxx 00000
Attention: Division Vice President - Operations
Global Travel Services Industry
Facsimile Number: (000) 000-0000
If to Customer:
Allin Communications Corporation
000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Facsimile Number: (000) 000-0000
All notices and other communications under this Agreement that are given as
provided in this Section, (a) if delivered personally, will be deemed given on
the date it is delivered, (b) if sent by express delivery service or certified
mail, will be deemed given on the date it is received and (c) if sent by
facsimile, will be deemed given on the date it is sent (so long as the sender
receives confirmation of transmission and a hard copy is sent by express
delivery service or certified mail, postage prepaid, in the manner herein
provided). Either party from time to time may change its address, facsimile
number or designee for notification purposes by giving the other party notice of
the new address, facsimile number, or designee and the date upon which it will
become effective.
16. Entire Agreement. This Agreement amends and restates the Original Marketing
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Agreement in its entirety. This Agreement, including any Schedules or
Exhibits referred to herein and attached hereto, each of which is
incorporated in this Agreement for all purposes, constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and there are no representations, understandings or agreements
relating to this Agreement which are not fully expresses herein. No change,
waiver, or discharge hereof shall be valid unless in writing and signed by
an authorized representative of the party against which such change, waiver,
or discharge is sought to be enforced.
IN WITNESS WHEREOF, EDS and Allin have each caused this Agreement to be signed
and delivered by its duly authorized officer, all as of the date set forth
above.
ELECTRONIC DATA SYSTEMS ALLIN COMMUNICATIONS
CORPORATION CORPORATION
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Division Vice President Title: Chief Executive Officer
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Date: August 11, 1997 Date: July 18, 1997
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