ALLIANCE AGREEMENT
This Alliance Agreement (the "Agreement") is made effective as of the 26th of
March, 2000 between BrainTech, Inc. ("BNTI"), having a principal place of
business at Suite 000, 000 Xxxx 0xx Xx., Xxxxx Xxxxxxxxx, X.X. X0X 0X0, fax
(000) 000-0000, and ABB Flexible Automation a division of ABB Inc. ("ABB"),
having a place of business at 0XXX Xxxxx, Xxxxxxxx,Xxxxxxx X0X 0X0 000-000-0000,
fax: 000-000-0000
RECITALS.
A. BNTI has expertise in the development of machine vision systems,
including the technology and methods required to analyze and classify
digital representations of images and visual patterns.
B. BNTI has developed valuable proprietary technology for use in the
development of visions systems, including the Odysee Development Studio,
the BrainTronProcessor, and the BrainTech Image Processing Library.
C. ABB has expertise in the area of flexible automation equipment
manufacturing and system integration.
D. ABB has developed a valuable network of business contacts and clients.
E. BNTI and ABB believe that their respective technologies and expertise can
be profitably combined in industrial applications which can employ the
expertise and technology of both BNTI and ABB.
F. BNTI and ABB wish to establish a framework to cooperate in developing and
executing business which combines the areas of expertise and technologies
of both companies.
ARTICLE 1. PURPOSE OF THIS AGREEMENT
1.1 ABB and BNTI agree to cooperate, in accordance with the terms and
procedures set out in this Agreement, in the identification, pursuit and
development of business opportunities to design, develop, market, and
install industrial applications and systems which combine the expertise
and technology of BNTI and the expertise and technology of ABB.
ARTICLE 2. AUTHORIZATION
2.1 ABB hereby authorizes BNTI to make representations to potential customers
of BNTI to the effect that:
(a) BNTI has established an alliance with ABB; and
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(b) as a result of that alliance, BNTI can make the services and
expertise of ABB available to potential customers.
In making such representations, BNTI is authorized to distribute ABB's
promotional literature and other promotional products to potential
customers.
2.2 BNTI hereby authorizes ABB to make representations to potential customers
of ABB to the effect that:
(a) ABB has established an alliance with BNTI; and
(b) as a result of that alliance, ABB can make the services, expertise,
and proprietary technology and products of BNTI available to
potential customers.
In making such representations, ABB is authorized to distribute BNTI
promotional literature and other promotional products to potential
customers.
ARTICLE 3. MARKETING COOPERATION
3.1 Each party agrees that, upon becoming aware of a business opportunity to
design, develop, market, or install an industrial application or system
which can potentially utilize, in a substantial way, the expertise and
technologies of both BNTI and ABB (an "Opportunity"), it will:
(a) advise the potential customer of its alliance with the other party, and
of the expertise and technology of the other party; and
(b) advise of the other party of the Opportunity.
3.2 Upon identifying an Opportunity, the parties will cooperate to obtain such
contracts or business as can be obtained arising from the Opportunity. In
doing so, the parties will use their reasonable best efforts to implement
the following steps and procedures.
(a) The parties will establish a reasonable division of work and
responsibility, having to their respective areas of expertise and
technologies.
(b) The parties will cooperate in preparing such proposals or feasibility
studies as may be beneficial in pursuit of the Opportunity. In doing
so, each party will prepare estimates of its expected costs in
completing the areas of work which may be assigned to it. Each party
will make available to the other the information and calculations on
which its cost estimates are based.
(c) The parties will prepare such specifications and contracts as may be
beneficial in pursuits of the Opportunity.
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(d) The parties will establish a fair and reasonable division of the
revenue anticipated from the Opportunity. To the greatest extent
practicable, the division of revenue shall include allowance for a
reasonable finder's fee for the party which first identified or found
the Opportunity.
3.2 Each party agrees, to the greatest extent reasonably practicable, to work
exclusively with the other party (in preference to any other company
offering expertise or technology similar to that of the other party) in
pursuing any Opportunity. For greater certainty, this section will not
require either party to work exclusively with the other party if it has a
persuasive bona fide business reason for not so. Such bona fide business
reasons may include, without out limitation:
(a) Inability of the other party to supply expertise or technology which is
important to pursuit of the Opportunity;
(b) Independent preference of a potential customer for another company
offering expertise or technology similar to that of the other party; or
(c) Inability of the parties, despite their reasonable best efforts, to
agree on any business or technical issues important to the pursuit of
the Opportunity.
ARTICLE 4. INTELLECTUAL PROPERTY RIGHTS
4.1 ABB acknowledges that (except to the extent that such have been licensed
by BNTI from third parties) BNTI owns all title and intellectual property
rights, copyright, moral rights, and patent rights in and to the
inventions, designs, products, hardware, software, and programs listed in
Schedule "A" (the "BNTI Proprietary Technology") Nothing in this Agreement
shall constitute a grant, transfer, or assignment to ABB of any of the
foregoing rights, or any license to use any BNTI Proprietary Technology
except as expressly authorized by BNTI.
4.2 ABB shall not reverse engineer, decompile, or disassemble any BNTI
Proprietary Technology , except any only to the extent that such activity
is expressly permitted by applicable law notwithstanding this limitation.
4.3 ABB further acknowledges that information provided by BNTI to ABB
concerning the BNTI Proprietary Technology shall constitute proprietary
and confidential information belonging to BNTI. ABB shall not disclose,
and shall keep confidential, all such information. This provision shall
not apply to information which (i) is or becomes part of the public domain
through no act or omission of ABB, (ii) ABB receives from a third party
acting without any obligation or restriction of confidentiality in favor
of BNTI, (iii) BNTI releases from confidential treatment by written
consent, or (iv) Partner is required by any applicable law or court order
to disclose.
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4.4 ABB warrants that neither it nor any of its employees will knowingly
convert to their own use or to use of any other party any industrial
secrets or trade secrets owned by BNTI and obtained by ABB or its personnel
by reason of this Agreement or otherwise.
4.5 BNTI acknowledges that (except to the extent that such have been licensed
by ABB from third parties) ABB owns all title and intellectual property
rights, copyright, moral rights, and patent rights in and to the
inventions, designs, products, hardware, software, and programs listed in
Schedule "B" (the "ABB Proprietary Technology") Nothing in this Agreement
shall constitute a grant, transfer, or assignment to BNTI of any of the
foregoing rights, or any license to use any ABB Proprietary Technology
except as expressly authorized by ABB.
4.6 BNTI shall not reverse engineer, decompile, or disassemble any ABB
Proprietary Technology , except any only to the extent that such activity
is expressly permitted by applicable law notwithstanding this limitation.
4.7 BNTI warrants that neither it nor any of its employees will knowingly
convert to their own use or to the use of any other party any industrial
secrets or trade secrets owned by ABB and obtained by BNTI or its
personnel by reason of this Agreement or otherwise.
4.8 BNTI further acknowledges that information provided by ABB to BNTI
concerning the ABB Proprietary Technology shall constitute proprietary and
confidential information belonging to ABB. BNTI shall not disclose, and
shall keep confidential, all confidential and proprietary information
provided by ABB or any subsidiary or agent of ABB relating to any ABB
Proprietary Technology. This provision shall not apply to information
which (i) is or becomes part of the public domain through no act or
omission of BNTI, (ii) BNTI receives from a third party acting without any
obligation or restriction of confidentiality in favor of ABB, (iii) ABB
releases from confidential treatment by written consent, or (iv) BNTI is
required by any applicable law or court order to disclose.
4.9 Each party further acknowledges that a violation of this Article 4 may
cause irreparable harm to the other party for which no adequate remedy in
damages exists, and each party therefore agrees that, in addition to any
other remedies available, a party will be entitled to seek equitable
remedies, including without limitation injunctive relief, to enforce the
obligations set forth in this Article 4. Without limiting the generality
of the foregoing, each party agrees that a party seeking to enforce the
obligations set out in this Article 4 shall be entitled to obtain interim,
interlocutory, and permanent injunctive relief without having to prove
irreparable harm, without regard to the balance of convenience, and
without having to post a bond.
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ARTICLE 5. DISCLAIMER OF AGENCY OR PARTNERSHIP STATUS
5.1 Nothing in this Agreement shall create any relationship of partnership
between BNTI and ABB. Neither party shall represent to any third person
that the relationship between BNTI and ABB is anything other than that of
independent contractors.
5.2 Nothing in this Agreement shall constitute either party as an authorized
distributor, reseller or selling agent for the other party. Nothing in
this Agreement shall create in either party any right or authority to
incur any obligations on behalf of, or to bind in any respect, the other
party.
5.3 Neither BNTI's nor ABB's officers, employees or agents shall be deemed
officers, direct or indirect employees, or agents of the other.
ARTICLE 6. TERM AND TERMINATION
6.1 Unless terminated in accordance with this Article, the term of this
Agreement will be three years.
6.2 Either party may terminate this Agreement by providing 120 days written
notice to the other party.
6.3 Forthwith upon termination of this Agreement, each party shall cease:
(a) any and all presentations, solicitations, or other marketing
activities relating to the other party's products and services; and
(b) representing or holding itself out as being authorized to market,
advertise or promote in any way the products of the other party.
6.4 The provisions of Article 3 shall survive termination of this Agreement.
6.5 NEITHER PARTY SHALL, BY REASON OF TERMINATION OF THIS AGREEMENT, BE LIABLE
TO THE OTHER PARTY FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF
THE LOSS OF PROSPECTIVE PROFITS ON ANTICIPATED SALES, OR ON ACCOUNT OF
EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS ENTERED INTO OR MADE IN
CONNECTION WITH THIS AGREEMENT OR ANY BUSINESS CONDUCTED, OR EXPECTED TO BE
CONDUCTED, BETWEEN THE PARTIES.
6.6 Either Party may terminate this Agreement of the other Party HAS BEEN
ADJUDGED BANKRUPT, MAKES A GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS
OR IF A RECEIVER IS APPOINTED OWING TO HIS INSOLVENCY.
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ARTICLE 7. GENERAL
7.1 Any consent by a party to, or waiver of, a breach of this Agreement by the
other party, whether express or implied, shall not constitute a consent
to, or waiver of, any different or subsequent breach.
7.2 Neither party may assign any rights under this Agreement.
7.3 If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and shall remain in full force and effect.
7.4 All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by
hand or telecopied to the addresses or fax numbers (as the case may be)
stated on the first page of this Agreement, or to such other addresses or
fax numbers as may be given in writing by the parties in accordance with
this section. Any such notice, request, demand or other communication
shall be deemed to have been received, if delivered by hand, on the date
of delivery, and if telecopied, on the business day next following the
date of transmission.
7.5 Each party agrees that during the term of this Agreement, and for a period
of six months following termination of this Agreement, it will not
solicit, entice, persuade or induce any individual who currently is, or at
any time during the term of this Agreement shall be, an employee of the
other party, to terminate or refrain from renewing such individual's
employment.
8. LAWS
8.1 Laws of Ontario
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
set out below.
BRAINTECH, INC.: ABB Flexible Automation Group, Inc.:
"Xxxx Xxxxx" "X. Xxxxxxxx"
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Signature Signature
Xxxx Xxxxx Xxxxx Xxxxxxxx
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Name Name
MARCH 15, 2000 00/03/26
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Date Date
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