STRATEGIC ALLIANCE AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT (this "AGREEMENT") is entered into as
of February 15, 2005 (hereinafter referred to as the effective date of the
Agreement), by and between CRITICAL POINT, LLC, a North Carolina limited
liability company (d/b/a Critical Point Group and hereinafter referred to as
"CPG"), and THE RESOURCING SOLUTIONS GROUP, INC., ITS SUBSIDIARIES AND
AFFILIATES, D/B/A ASMARAHR. CPG and AsmaraHR may each be referred to herein as a
"Party" and may be referred to, collectively, as the "Parties".
WITNESSETH
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WHEREAS, AsmaraHR is in the business of providing Human Resource
Outsourcing services and PEO services to its customers; and
WHEREAS, AsmaraHR wishes to enhance and expand its existing business
and to expand the products and services available to its customers; and
WHEREAS, CPG is in the business of providing consulting and strategic
planning services to its clients; and
WHEREAS, AsmaraHR desires to retain CPG, and CPG wishes to provide the
services as set forth in this Agreement; and
WHEREAS, CPG wishes to be the recipient of outsource services by
AsmaraHR that are inclusive of TPA services for employee benefit clients of
AsmaraHR; and
WHEREAS, AsmaraHR wishes to retain CPG for sales support through sales
management and training of sales staff with regard to the medical physician
industry
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises hereinafter expressed, the Parties hereto do mutually agree as follows:
ARTICLE I
OBJECTIVES
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The following are AsmaraHR's primary objectives in retaining the
services of CPG:
1.1 To obtain a sales management strategy, and provide sales training
with regard to employee benefit insurance products, and development of property
and casualty insurance products, or other products that compliment the product
and services offering.
1.2 To have CPG provide lead sources through CPG's' contact database,
sales lead development with regard to the physician private office sales
vertical.
1.3 A continuation of executive leadership and influence by the
Principals of AsmaraHR over AsmaraHR's direction, vision, and growth.
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1.4 AsmaraHR and CPG enter into an exclusive discovery period for the
purpose of CPG identifying TPA services currently provided by AsmaraHR to their
client base, CPG developing further services for the AsmaraHR client base as
needed, and providing AsmaraHR a price structure for the identified services.
This period should begin February 7, 2005 and end by close of business February
9, 2005.
1.5 CPG will provide assistance in evaluating and determining the best
model for providing HRO services in the acute care industry for AsmaraHR
products and services, employee benefit insurance products and TPA services, and
the development of other products and services that would be complimentary to
the current joint product offering.
ARTICLE II
MEDICAL OFFICE SALES VERTICAL STRATEGIC ALLIANCE
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2.1 Strategic Alliance. As a means of meeting the objectives outlined
in Article I above, AsmaraHR and CPG hereby enter into a strategic alliance (the
"STRATEGIC ALLIANCE") pursuant to which each shall perform their services and
obligations as set forth below.
2.2 Engagement of CPG. AsmaraHR does hereby engage CPG for a period of
12 months days (or longer if mutually agreed by the parties) (the "TERM"). CPG
shall be the exclusive strategic partner during this Term. CPG shall continue to
receive the agreed full commission income, as outlined in section 2.3 below, for
as long as CPG, or CBA, and AsmaraHR jointly provide services or products to the
AsmaraHR client.
2.3 Fees and Costs. AsmaraHR shall pay CPG $1,500 per month, for
providing the strategic planning and consulting services set forth in Section
2.5 below. CPG will also receive 25% of all commission income on products sold
by the sales vertical that CPG will be responsible for sales management of.
2.4 TPA Services. AsmaraHR shall pay all third-party expenses and fees
to third-party service providers identified and retained by CPG in connection
with providing the services hereunder. CPG shall have authority to obtain the
assistance of other third-party professionals to assist it in this engagement.
CPG will endeavor to keep the fees and expenses to third parties as low as
reasonably possible. CPG will xxxx AsmaraHR at the end of each calendar month,
with payment due in full within 30 days of billing.
2.5 Exclusive Engagement. During the Term of this Agreement (including
any extensions thereof) CPG shall be the exclusive provider of consulting and
strategic planning services to AsmaraHR. A Principal of CPG, Xx. Xxx Xxxxx,
shall have full and exclusive authority over the management of the Strategic
Alliance, including but not limited to, overseeing the preparation of the
business plan and related documents, engaging other third-party professionals.
AsmaraHR will not employ any other competing professional relating to the
Objectives without the prior consent of Xx. Xxxxx, and will refrain from
discussing its business plan and the services being provided under this
Agreement with any other third-party professional(s) without his direct
involvement.
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2.6 Performance by CPG. CPG will use its best efforts to assist
AsmaraHR in meeting each of the Objectives outlined in Article I above. In
particular, CPG will conduct the following activities:
(a) Assist AsmaraHR in developing and expanding its business
plan to include HRO and employee benefit insurance products and
services for the private physician office practice as jointly
identified, and to assist AsmaraHR in meeting the Objectives as
outlined above.
(b) Perform, on its own and with assistance from AsmaraHR as
needed, the discovery identified in the Objectives outlined above
(c) CPG/CBA will also provide proprietary insurance product
descriptions and projections, together with a migration plan. It is
contemplated that this will be a key driver of AsmaraHR's new business
plan.
2.7 Specific Agreements of AsmaraHR. As a material inducement to CPG,
AsmaraHR agrees as follows:
(a) AsmaraHR shall negotiate in all good faith with CPG to
formulate and implement the business plan arising from this Strategic
Alliance, provided it furthers the Objectives outlined herein.
(b) Regardless of the structure of the new business plan or
the success in achieving its goals, CPG and its affiliates shall be the
exclusive provider of all third party financial products and TPA
services to AsmaraHR's client base. Such exclusive arrangement shall
remain in place for not less than five years from the date of this
Agreement. CPG shall have the right of first refusal on any third-party
offers obtained in good faith by AsmaraHR for the provisions of
financial services and/or TPA services to its client base.
2.8 Insurance Products. For a period of three years from the date of
this Agreement, Carolina Benefit Associates, LLC ("CBA") and its affiliates
shall be the exclusive broker and agent for insurance and insurance related
products and services promoted or offered by AsmaraHR and its affiliates to
AsmaraHR's customers. During this period, AsmaraHR shall work jointly with CBA
in the marketing of insurance products and services offered through CBA. In
addition, CBA shall have the right to receive and use all customer contact
information for the purpose of soliciting, either directly or through AsmaraHR,
and underwriting insurance products and services to AsmaraHR's customers
(subject in all cases to applicable U.S., state and local laws regarding the
solicitation of such products and services). All insurance related forms and
information generated through the solicitation, issuance and administration of
insurance products and services shall be and remain the sole property of CBA.
Upon the expiration of the initial 3-year term, CBA shall have a right of first
refusal for providing insurance related services for AsmaraHR's customers. For
this purpose, AsmaraHR shall provide CBA with written notice of the terms of any
bona-fide third-party offers to provide insurance services. Such right may be
exercised at any time by CBA within ten business days of receipt of said notice.
This Section shall survive the expiration of the Term or other termination of
this Agreement. CBA shall be a third-party beneficiary for purposes of this
Section and all other related provisions of this Agreement.
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ARTICLE III
INSURANCE PRODUCTS- (NON-MEDICAL VERTICAL)
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3.1 PREFERRED PROVIDER. CPG/CBA will be the preferred provider for all
insurance products to AsmaraHR's clients.
3.2 RIGHT OF REFUSAL. CPG/CBA will have the right of first refusal on
all insurance products for AsmaraHR new client base.
3.3 EXCLUSIONS:
-NASPAC - medical insurance
-NASPAC/Elder Care- Workers' Compensation Insurance
-Individual Supplemental Benefits (i.e. AFLAC, Colonial) to
AsmaraHR existing customer base
ARTICLE IV
RESELLER'S AGREEMENT
--------------------
BACKGROUND INFORMATION
AsmaraHR (referred to as the Company in this Article) is in the
business of providing professional employer services. The Company wishes to
retain the services of CPG/CBA (referred to as the Reseller in this Article) to
identify prospective buyers of Company's services and solicit such prospects to
contract to purchase the Company's services. The Company desires to retain the
services of Reseller and Reseller desires to render such services on the terms
and conditions set forth below. Accordingly, the parties agree as follows:
OPERATIVE PROVISIONS
4.1 TERM.
The effective date of this Agreement is , 2005 (the "Effective Date")
and the Agreement will continue until terminated as provided herein. Either
party may terminate this Agreement at any time by providing thirty (30) days
prior, written notice, unless otherwise provided herein. All Earned Fees shall
be paid through the effective date of termination.
4.2 SCOPE OF WORK.
During the Term of this Agreement, Reseller shall provide to the
Company marketing and sales services for the exclusive purpose of marketing and
selling the Company's products and services in accordance with the terms and
conditions herein. The Companies products include Darwin and DarwiNet a Human
Resource Information Management System, (HRIS) and
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Integrated Payroll (collectively hereinafter referred to as "Products"). . The
Company's services include, but are not limited to, human resources advice,
payroll processing, work force administrations, as well as one or more of the
following: benefits administration, unemployment services, workers' compensation
insurance, employee benefits and risk management services (collectively
hereinafter referred to as "Services"). The Reseller agrees that it shall begin
its operations to help market the Products and Services as of the execution of
this Agreement.
4.3 RESELLER RELATIONSHIPS -Resellers can have three distinct
relationships with Company:
- FINDER'S FEE- Reseller agrees to provide introductions and
participate in initial meetings with potential clients for the
Company's services. The Company will be responsible for the
closing of the sales contracts with clients.
- JOINT MARKETING- Joint selling where Reseller leads sales cycle
with sales support from Company.
- RESALE- Reseller will be responsible full sales cycle with
prospective client including closing of sale. Company will provide
marketing materials as needed.
No sale of the Company's services shall be final until accepted by the Company.
Reseller agrees to provide a list of potential clients to Company and identify
which Reseller relationship they will be participating in with each prospective
client. Reseller agrees not to use any marketing materials or provide any other
information about the Company without the prior, written consent of the Company.
Reseller also agrees to attend specific product and/or services training
sponsored by the Company, at Reseller's expenses.
The Reseller shall not have any authority to bind the Company to
provide the Services. The Company will provide the Services only as provided in
writing by the Company, and only within states where the Company is duly
licensed to operate. The Company has the right to: (a) decline any prospective
client brought to the Company for any reason whatsoever; and (b) terminate any
client brought to the Company by the Reseller for any reason.
4.4 COMMISSIONS. The Company shall pay a Finder's Fee and or commission
for the services to be rendered by Reseller under this Agreement in accordance
with section 2.1 and the schedule attached hereto as Exhibit "A".
4.5 MARKETING TERRITORY. The Reseller shall have the non-exclusive
right to market the Company's Services anywhere that the Company is registered
to do business and has obtained all necessary licenses to operate. A list of the
states where the Company is licensed or otherwise qualified to do business shall
be delivered by the Company to the Reseller upon request by the Reseller.
4.6 LIMITATION ON REPRESENTING OTHER PROVIDERS. The Reseller agrees
that it and its affiliates and subsidiaries will market the Products and
Services only on behalf of the
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Company during the Term of this Agreement. Reseller also agrees to refrain from
selling Products or Services on behalf of any other person or entity other than
the Company during the Term of the Agreement; however, Reseller may continue to
represent any such organizations with which it had an agreement prior to the
Effective Date of this Agreement. Additionally, the Reseller or its principal
owners, shall not own, directly or indirectly, an equity interest in any
Professional Employer Organization ("PEO") or Human Resource Organization (HRO),
(PEO and HRO mean a Company that uses co-employment to provide Services as
defined in paragraph one) without the prior written consent of the Company;
however, the Reseller, and/or its principal owners shall be permitted to own the
shares of such companies whose stock is publicly traded provided that the
Reseller, nor its principals sell or promote products or services offered by
such companies.
4.7 EXPENSES. The Reseller shall be responsible for all ordinary and
necessary out-of-pocket expenses incurred by the Reseller in the performance of
its obligations hereunder.
4.8 SUBAGENTS. The Reseller shall have no authority to appoint
subagents, except upon specific written authority of the Company.
4.9 RESTRICTIVE COVENANTS.
4.9.1 NON-SOLICITATION; NON-INTERFERENCE. Reseller shall not, during
the Term of this Agreement, whether Initial or Successor, and the two (2) year
period following termination of this Agreement, for whatever reason, solicit
directly or indirectly any Customer or Prospect of the Company to purchase any
services provided by the Company. For purposes of this Agreement, the term
"Customer" means any person or entity that has a Client Service Agreement or
other Agreement for services from the Company in effect during the term of this
Agreement, and the term "Prospect" means any person or entity with whom the
Company has made a written proposal within the one (1) year period immediately
preceding the date upon which this Agreement is terminated. Additionally,
Reseller shall not, directly or indirectly, during the two (2) year
post-termination period, employ or attempt to employ any employee of the
Company, or otherwise encourage or attempt to encourage any employee of the
Company to leave the Company's employ. It is expressly understood that Reseller
may solicit the Company's customers for the purpose of selling services or
products offered by Reseller that Company does not sell on a stand-alone basis.
4.9.2 CONFIDENTIALITY; DISCLOSURE; PROPRIETARY INFORMATION. Reseller
acknowledges that all records and information obtained from the Company,
including, but not limited to, lists of customers or proposed customers of the
Company, or of, all personal, financial or business information concerning the
customers or proposed customers of the Company, as well as the business
processes and distribution systems of the Company, are valuable and unique and
are proprietary assets of the Company (the "Confidential Information"). During
Reseller's retention by the Company and following the termination thereof,
Reseller shall not at any time disclose any of the Confidential Information, nor
utilize the same for any reason not previously authorized in writing by the
Company; provided, however, that the Confidential Information may be disclosed
to Reseller's directors, officers, employees, agents, attorneys and other
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representatives (collectively, "Representatives") who need to know such
information for the purpose of performing services to the Client. Reseller
further agrees not to use any Confidential Information for any purpose not
related to the services to be performed by Reseller for the Client; nor will
Reseller disclose to any person or entity the Client as the entity for which
services are performed.
In addition to the Confidential Information provided by you, there may also be
certain reports, worksheets, memoranda, and computer files created or generated
by Reseller during the course of performing services to the Client
(collectively, "Service Documents"). If any such Service Documents contain
Confidential Information or Confidential Information can be derived from them,
they shall be treated as Confidential Information pursuant to the terms herein.
Any Service Documents shall be destroyed or delivered to the Company upon
termination or completion of WWS services to the Client unless otherwise
designated by the Client.
4.9.3 COVENANT INDEPENDENT. Each restrictive covenant on the part of
the Reseller set forth in this Agreement shall be construed as a covenant
independent of any other covenant or provision of this Agreement or any other
agreement which Reseller may have, whether fully performed or executory, and the
existence of any claim or cause of action by Reseller against the Company,
whether predicated upon another covenant or provision of this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
any other covenant.
4.9.4 COURT PROCEEDINGS. In any action or proceeding by the Company
relating to or involving the enforcement of this covenant, Reseller hereby
waives any and all right to a trial by jury with respect to the action,
proceeding, or other litigation resulting from or involving the enforcement of
this covenant. Further, in any action or proceeding by the Company to obtain a
temporary restraining order and/or preliminary injunction, Reseller hereby
agrees to waive the necessity of the Company posting an injunction bond in order
to obtain a temporary restraining order and/or preliminary injunction. Should
the Company's action for a temporary restraining order and/or motion for
preliminary injunction be granted in whole or in part and should the Company be
ultimately unsuccessful in obtaining a permanent injunction to enforce the
covenant, Reseller hereby waives any and all rights Reseller may have against
the Company for any injuries or damages, including consequential damages,
sustained by Reseller and arising directly or indirectly from the issuance of
the temporary restraining order and/or preliminary injunction.
4.9.5 EXTENSION OF COVENANT PERIOD. The period of time during which
Reseller is prohibited from engaging in the practices identified in Subsection
8(a) above shall be extended by any length of time during which Reseller is in
breach of such covenants.
4.9.6 SURVIVAL OF COVENANTS. All restrictive covenants contained in
this Agreement shall survive the termination of this Agreement, and can be
assigned by the Company to an affiliate or successor.
4.9.7 RESELLER NOT AN EMPLOYEE OF THE COMPANY. Reseller shall, at all
times and for all purposes, be deemed an independent contractor with respect to
the Company. Reseller shall not
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be subject to direction or control by the Company except to the extent that such
direction or control may be specifically required by applicable law or
regulation. Reseller shall not hold himself out to be an employee or agent of
the Company or use the name of the Company in his/her business in any way.
Reseller shall not have the authority to bind the Company to any agreement with
any party.
4.9.8 INDEMNIFICATION OF THE COMPANY. The Reseller shall, jointly and
severally, indemnify and hold the Company harmless, except to the extent that
the Company has caused such error or omission, against all civil liability,
including reasonable attorney's fees and reasonable costs of investigation and
defense incident thereto, arising as a direct result of the Reseller's error or
omission in:-(a) the use of any Company forms or following instructions or
procedures established by Company with respect to any business submitted by the
Reseller to the Company; (b) the preparation, processing, handling or billing of
any business placed by the Reseller with the Company; or (c) in connection with
the performance of the Reseller's duties under this Agreement; provided,
however, that the Company shall promptly notify the Reseller when the Company
receives notice of any claim or the commencement of any action relating to such
liabilities, and the Reseller shall be entitled to participate in the defense or
to assume the entire defense of any such action. If the Reseller assumes the
entire defense of any such action, it shall not be liable to the Company for any
legal or other expenses subsequently incurred by the Company in connection with
such action absent the Reseller's written approval of such expense.
4.10 MISCELLANEOUS PROVISIONS.
4.10.1 NOTICES: All notices and other communications hereunder shall be
in writing and shall be given to the person either personally or by sending a
copy thereof by first class or express mail, postage prepaid, or by courier or
overnight delivery service, charges prepaid, or by telecopier, to such party's
address (or to such party's telecopier number) set forth in the preamble hereto.
If the notice is sent by mail or courier or overnight delivery service, it shall
be deemed to have been given to the person entitled thereto when deposited in
the United States mail or courier or overnight delivery service for delivery to
that person or, in the case of telecopier when dispatched, and addressed as
indicated herein above. Notice of any change in any such address shall also be
given in the manner set forth above. Whenever the furnishing of notice is
required, the same may be waived by the party entitled to receive such notice.
4.10.2 ASSIGNABILITY. Neither this Agreement nor any right or interest
hereunder shall be assignable by either party without the prior, written
approval of the other party to the Agreement. Any such assignment shall inure to
the benefit of and be binding upon the beneficiaries and legal representatives
of the assignee.
4.10.3 ENTIRE AGREEMENT: This Agreement, and any other document
referenced herein, constitute the entire understanding of the parties hereto
with respect to the subject matter hereof, and no amendment, modification or
alteration of the terms hereof shall be binding unless the same be in writing,
dated subsequent to the date hereof and duly approved and executed by each of
the parties hereto.
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4.10.4 ENFORCEABILITY: If any term or condition or this Agreement shall
be invalid or unenforceable to any extent or in any application, then the
remainder of this Agreement, and such term or condition except to such extent or
in such application, shall not be affected thereby and each and every term and
condition of this Agreement shall be valid and enforced to the fullest extent
and in the broadest application permitted by law.
4.10.5 APPLICATION OF LAW AND VENUE: This Agreement, and the
application or interpretation thereof, shall be governed exclusively by its
terms and by the laws of the State of North Carolina. The sole and exclusive
venue to file any action to enforce this Agreement, or any part thereof, shall
be Mecklenburg County, North Carolina.
4.10.6 COUNTERPARTS: This Agreement may be executed by any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.10.7 BINDING EFFECT: Each of the provisions and agreements herein
contained shall be binding upon and inure to the benefit of the personal
representatives, devisees, heirs, successors, transferees and assigns of the
respective parties hereto.
4.10.8 LEGAL FEES AND COSTS: If a legal action is initiated by any
party to this Agreement against another, arising out of or relating to the
alleged performance or non-performance of any right or obligation established
hereunder, or any dispute concerning the same, any and all fees, costs and
expenses reasonably incurred by each successful party or his/her or its legal
counsel in investigating, preparing for, prosecuting, defending against, or
providing evidence, producing documents or taking any other action in respect
of, such action shall be the joint and several obligation of and shall be paid
or reimbursed by the unsuccessful party or parties.
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ARTICLE V
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CONFIDENTIAL INFORMATION
------------------------
The Parties acknowledge and agree that in the course of the performance
of the services under this Agreement, that each may be given access to, or come
into possession of, confidential information of the other Party, which
information may contain trade secrets, proprietary data, or other confidential
material of that Party. With respect to such information, the Parties hereby
agree as follows:
5.0 CONFIDENTIAL INFORMATION. "Confidential and Proprietary
Information" shall mean any and all written or oral information of a party that
shall be subject to patent, copyright, trademark, trade name or service xxxx
protection, or described or treated as confidential or proprietary by either
Party, or not otherwise in the public domain and related to the business and
operations of a party, including, without limitation, this Agreement and the
exhibits hereto, information relating to earnings, volume of business, methods,
systems, database practices or plans of a Party, customer names and contacts and
targeted customer names, proprietary products and services of either Party, any
information in which either Party has informed the other Party in writing that
such information is to be considered as Confidential and Proprietary Information
and all similar information of any kind or nature whatsoever which is known only
to persons having a fiduciary or confidential relationship with a party.
Confidential and Proprietary Information shall include any copies, samples,
models or prototypes, or parts thereof.
5.1 PURPOSES. The disclosing Party agrees to make known to the
receiving Party, and the receiving Party agrees to receive Confidential and
Proprietary Information from the disclosing Party for the sole purpose of
developing AsmaraHR's business plan and other services under this Agreement.
AsmaraHR acknowledges that all business development plans, methods and materials
provided by and CPG principal are considered Confidential and Proprietary
Information of CPG for purposes of this Agreement.
5.2 NOTICE TO EMPLOYEES. The receiving Party further warrants that all
employees with access to the disclosing Party's Confidential and Proprietary
Information shall be given notice of the obligations under this Agreement.
5.3 USE OF CONFIDENTIAL INFORMATION. All Confidential and Proprietary
Information is proprietary to the disclosing party, and is to be used only for
purposes described above and no other purpose whatsoever.
5.4 SPECIFIC PROVISIONS. All Confidential and Proprietary Information
delivered pursuant in this Agreement:
(a) Shall, if in any written or physical form, be marked
"Confidential", "Proprietary", or otherwise similarly legended by the
disclosing Party prior to being turned over to the receiving Party
and/or shall, if displayed on any computing system for the purposes
permitted by this Agreement, where the Confidential Information can be
discerned from such display, wherever practicable, contain a notice
that the displayed
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information is Confidential Information, the property of the disclosing
Party, and subject to limitations on its use;
(b) Shall not be copied, distributed, disclosed or
disseminated in any way or form by the receiving Party without the
prior written consent of the disclosing Party; except, that the
receiving Party is granted permission to copy information when
necessary for the purposes of this Agreement.
Such limited permission to copy data does not diminish the receiving
Party's obligation to comply with any and all other portions of this Agreement.
At conclusion of the use of information previously described, or termination of
this Agreement by means defined elsewhere in this document, the receiving Party
shall assure that all copies of all Confidential and Proprietary Information,
whether or not incorporated in other programs, data compilations, or otherwise
intermingled with other data not subject to this Agreement, shall be removed
from all computer systems and storage media and shall return the original
Confidential and Proprietary Information and media to the disclosing Party;
(c) Shall be maintained in strict confidence, and may only be
disclosed to those employees of the receiving Party, who have a need to
know the same in order to use the same for the purposes described
above; and
(d) Shall not be used by the receiving Party for any purposes,
except as expressly stated herein, without the express prior written
permission of the disclosing Party.
5.4 EXCEPTIONS. The obligations of this Article shall not apply, however, to any
information which:
(a) Is already in the public domain at the time of disclosure
or later becomes available to the public through no breach of this Agreement by
the receiving Party;
(b) Was, as between the Parties, lawfully in the receiving
Party's possession prior to receipt from the disclosing Party without obligation
of Confidentiality;
(c) Is received by the receiving Party independently from a
third party free lawfully to disclose such information to the receiving Party;
or
(d) Is subsequently independently developed by the receiving
Party, as evidenced by its business records.
5.5 TERMINATION. Unless mutually agreed otherwise in writing, the receiving
Party's obligations hereunder with respect to each item of Confidential and
Proprietary Information shall terminate three (3) years from the date of
termination of this Agreement.
5.5 ALTERATION. Materials used in any engagement undertaken pursuant to this
Agreement shall not be altered or changed without the consent of both Parties.
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5.6 DAMAGES/INJUNCTION. The Parties recognize that, because of the nature of the
subject matter of this Agreement, it would be impractical and extremely
difficult to determine actual damages in the event of a breach of this Article.
Accordingly, if the receiving Party commits a breach, or threatens to commit a
breach, of any of the provisions hereof, the disclosing Party shall have, in
addition to any other rights of action it may have, including the right to
receive monetary damages, the right to seek and receive a temporary restraining
order, injunction or other equitable remedy, including, without limitation, the
right to have the provisions of this Article specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury and that money damages
will not provide an adequate remedy.
6
NO PARTNERSHIP
--------------
Nothing herein contained shall be construed to imply a joint venture,
partnership or principal agent relationship between CPG or AsmaraHR, and neither
Party shall have the right, power, or authority to obligate or bind the other in
any manner whatsoever, except as otherwise agreed to in writing. The Parties do
not contemplate an ongoing sharing of profits relating to the services provided
hereunder so as to create a separate taxable entity under section 761 of the
Internal Revenue Code of 1986, as amended, nor co-ownership of a business or
property so as to create a separate partnership under the law of any
jurisdiction, including, without limitation, North Carolina. Accordingly, for
tax, property, and liability purposes, CPG will perform the services and
obligations it renders and AsmaraHR will perform the services and obligations it
renders, each on a professional basis and on their own account and for their own
benefit. Revenues and expenses relating to the services and any additional
services shall be reported separately by the Parties for tax purposes. During
the performance of any of the services, CPG's employees will not be considered
employees of AsmaraHR and vice versa, within the meaning or the applications of
any foreign, federal, state, or local laws or regulations including, but not
limited to, laws or regulations covering unemployment insurance, old age
benefits, workers' compensation, industrial accident, labor, or taxes of any
kind. CPG's personnel who are to perform the services rendered by CPG or
additional services to be provided by CPG hereunder shall be under the
employment, and ultimate control, management, and supervision of CPG. AsmaraHR's
personnel who are to perform the services rendered by AsmaraHR or additional
services to be provided by AsmaraHR hereunder shall be under the employment and
ultimate control, management, and supervision, of AsmaraHR, except with regards
to the sales management process as outlined in Objectives above. It is
understood and agreed that AsmaraHR's employees shall not be considered CPG's
employees within the meaning or application of CPG's employee fringe benefit
programs for the purpose of vacations, holidays, pension, group life insurance,
accidental death, medical, hospitalization, and surgical benefits, and vice
versa.
7
TRADEMARK, TRADE NAME AND COPYRIGHTS
------------------------------------
Except as expressly provided herein, this Agreement does not give
either Party any ownership rights or interests in the other Party's trade name,
trademarks, or copyrights. CPG's proprietary information and associated
products, copyrights, trademarks, trade names, and logos developed by CPG shall
remain the property of CPG and reference to CPG's rights shall be made in all
Strategic Alliance Agreeement
Page 12
uses of such materials in at least 12 point type. AsmaraHR's proprietary
information and associated products, copyrights, trademarks, trade names, and
logos developed by AsmaraHR shall remain the property of AsmaraHR and reference
to AsmaraHR's rights shall be made in all uses of such materials in at least 12
point type.
8
INDEMNIFICATION
---------------
Each of CPG and AsmaraHR, at its own expense, shall indemnify, defend,
and hold the other, its partners, members, shareholders, directors, officers,
employees, and agents harmless from and against any and all third-party suits,
actions, investigations, and proceedings, and related costs and expenses
(including reasonable attorneys' fees) resulting solely and directly from the
indemnifying Party's negligence or willful misconduct. Neither CPG nor AsmaraHR
shall be required hereunder to defend, indemnify, or hold harmless the other
and/or its partners, shareholders, members, directors, officers, employees and
agents, or any of them, from any liability resulting from the negligence or
wrongful acts of the Party seeking indemnification or of any third party. Each
of CPG and AsmaraHR agrees to give the other prompt written notice of any claim
or other matter as to which it believes this indemnification provisions is
applicable. The indemnifying Party shall have the right to defend against any
such claim with counsel of its own choosing and to settle and/or compromise such
claim as it deems appropriate; provided, however, the indemnified party shall
not be required to admit liability in a settlement without its consent. Each
Party further agrees to cooperate with the other in the defense of any such
claim or other matter.
9
NON-SOLICITATION OF PERSONNEL
-----------------------------
AsmaraHR and CPG agree not to engage in any attempt whatsoever to hire,
or to engage as independent contractors, the other's employees or independent
contractors during the term of this Agreement and for a period of two (2) years
following expiration or termination of this Agreement except as may be (i)
otherwise provided herein or (ii) mutually agreed in writing.
10
INTELLECTUAL PROPERTY
---------------------
Work performed on engagements pursuant to this Agreement by either CPG
and/or AsmaraHR and information, materials, products, and deliverables developed
in connection with engagements pursuant to this Agreement, shall be the property
of the respective Parties performing the work or creating the information and/or
the contracting client. All underlying methodology utilized by AsmaraHR and CPG
respectively which was created and/or developed by either before the date of
this Agreement and utilized in the course of performing engagements pursuant to
this Agreement shall not become the property of the other.
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Page 13
11
GENERAL PROVISIONS
------------------
11.1 Entire Agreement. This Agreement together with all documents incorporated
by reference herein, constitutes the entire and sole agreement between the
Parties with respect to the subject matter hereof and supersedes any prior
agreements, negotiations, understandings, or other matters, whether oral or
written, with respect to the subject matter hereof. This Agreement cannot be
modified, changed, or amended, except for a writing signed by a duly authorized
representative of each of the Parties.
11.2 Conflict. In the event of any conflict, ambiguity, or inconsistency between
this Agreement and any other document which may be annexed hereto, the terms of
this Agreement shall govern.
11.3 Assignment and Delegation. Except as otherwise provided herein, neither
Party shall assign or delegate this Agreement or any rights, duties, or
obligations hereunder to any other person and/or entity without prior express
written approval of the other Party.
11.4 Notices. Any notice required or permitted to be given under this Agreement
shall be in writing, by hand delivery, commercial overnight courier, or
registered or certified U.S. Mail, to the address stated below for AsmaraHR or
to the address stated below for CPG, and shall be deemed duly given upon receipt
or if by registered or certified mail three (3) business days following deposit
in the U.S. Mail. The Parties hereto may from time to time designate in writing
other addresses expressly for the purpose of receipt of notice hereunder.
If to CPG: 000 X Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxx
If to AsmaraHR: -------------------------
-------------------------
Charlotte, NC _____________
Attention: Xx. Xxxx Xxxxxxxxx
11.5 Severability. If any provision of this Agreement is declared invalid or
unenforceable, such provision shall be deemed modified to the extent necessary
and possible to render it valid and enforceable. In any event, the
unenforceability or invalidity of any provisions shall not affect any other
provision of this Agreement, and this Agreement shall continue in full force and
effect, and be construed and enforced, as if such provision had not been
included, or had been modified as above provided, as the case may be.
11.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina without giving effect to
its choice of law principles. Both Parties hereby submit to any court of
competent jurisdiction sitting in Mecklenburg County, North Carolina and hereby
waive any objection to jurisdiction or venue.
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Page 14
11.7 Paragraph Headings. The paragraph headings set forth in this Agreement are
for the convenience of the Parties, and in no way define, limit, or describe the
scope or intent of this Agreement and are to be given no legal effect.
11.8 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Signature Page Follows]
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Page 15
IN WITNESS WHEREOF, the parties, by their duly authorized
representatives, have caused this Agreement to be executed as of the date first
written above.
CRITICAL POINT, LLC, AsmaraHR
a North Carolina limited liability company
By:/s/XXX XXXXX By:/s/XXXX XXXXXXXXX
----------------- -----------------
Name: Xxx Xxxxx Name: Xxxx Xxxxxxxxx
Title: Member Title: President and CEO
Strategic Alliance Agreeement
Page 16
EXHIBIT A
Fees need to be negotiated
FINDER'S FEE
------------
>>
RESALE- JOINT MARKETING (ASMARAHR SALES SUPPORT)
------------------------------------------------
>>
RESALE- NO ASMARAHR INVOLVEMENT
-------------------------------
RESELLER AGREES:
>> Reseller agrees to notify Company in writing as to which
relationship, (finder fee/joint marketing/ resale) they will be
acting with each targeted client.
>> Reseller will develop a list of client and potential contacts and
identify which relationship they will be participating,
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