TEAMING AGREEMENT
THIS AGREEMENT is entered into as of April 22, 1997 between DUKE
ENGINEERING & SERVICES, INC. ("DE&S") and EUROTECH LTD. ("Eurotech").
WHEREAS, the parties desire to work together as a team to market the EKOR
technology on a worldwide basis (hereinafter the "Work");
WHEREAS, the parties wish to define their mutual roles, responsibilities
and commitments in connection with the development and the performance of the
Work;
WHEREAS, the parties intend to consider the formation of a new joint
business entity as the market for the Work develops;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1. MARKETING
A. The parties shall cooperate as a team to develop market
opportunities for the Work. Any opportunity covered by this
Agreement identified by one party shall be immediately communicated
to the other party.
B. The parties shall mutually market the Work and aggressively pursue
bid opportunities utilizing the respective expertise of each party.
C. Each party shall bear its own costs and expenses in connection with
marketing and submitting proposals for the Work. Neither party shall
commit or obligate the other party to perform any Work or accept any
responsibilities without such other party's prior written consent.
D. The parties shall review each bid opportunity to mutually determine
if a team bid is desired, appropriate, and acceptable to the
customer. Each party will have the right to refuse to bid the Work.
If a party refuses to jointly bid the Work, then only the party
willing to proceed is free to bid the Work alone or with others.
E. Prior to submittal of a team proposal, the parties will determine
whether the proposal will be presented as a joint venture between
the parties or which party will bid as prime contractor with the
other as designated subcontractor. This determination will be made
so as to
result in the most efficient manner of performance of the Work. In
the event of an award, the prime contractor shall offer and the
designated subcontractor shall accept a subcontract from the prime
contractor with the prior agreed upon terms and conditions for its
portion of the Work or the parties shall enter into a joint venture
agreement with the prior agreed upon terms and conditions.
F. The parties agree to establish standard pricing which is competitive
for the Work being provided, and to share proportionately on any
price reductions necessary to win a competitive bid. In addition,
the prime contractor shall not xxxx up the price proposed by the
subcontracting party named in this Agreement.
G. The designated prime contractor will prepare the proposal, integrate
information supplied by the designated subcontractor, consult with
the designated subcontractor on decisions affecting its input to the
proposal, obtain agreement on contract terms and conditions, and
submit the proposal to the customer. The prime contractor will
identify the other party as subcontractor and use its best efforts
to secure customer approval of the use of the other party. The prime
contractor will keep the subcontractor fully advised of the status
of the proposal including negotiations, schedule, and any change
which may affect the subcontractor's areas of responsibility. If the
subcontractor is not approved by the customer as a subcontractor, or
if the prime contractor is not the successful bidder, the parties
may request agreement to pursue the Work as may be in their
respective best interests. This agreement will not be unreasonably
withheld.
H. Each party hereby commits itself to take the necessary reasonable
steps toward the pursuit of any request for proposal, provided such
proposal is acceptable to both team members, and further commits
itself to the successful performance of any contract based on any
such proposal.
I. If a contract is awarded by a customer, invoices for completed work
will be submitted promptly by the subcontractor to the prime
contractor and the prime contractor will submit promptly the
invoices to the customer in accordance with the customer's purchase
order. Payment received for work of the designated subcontractor
will be made by the prime contractor to the
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subcontractor within ten (10) days following receipt by the prime
contractor of payment from the customer.
The prime contractor agrees to present to the customer any and all
reasonable claims of the designated subcontractor arising out of the
performance of the work provided the designated subcontractor
assists in this presentation at its expense. If these claims are not
paid by the customer, the prime contractor will not be liable to the
subcontractor for the claims.
J. During the term of this Agreement, the parties agree that they shall
not directly or indirectly take part in bidding for any of the Work
without the other party's participation as called for in this
Agreement and shall not take any action which might impair the
chances for award of any part of the Work. This obligation is
binding on any subsidiaries or related companies or parties under
the direct or indirect control of the parties to this Agreement.
Each party agrees to work with, and only with, the other party in
seeking and performing the proposed Work covered by this Agreement
except in the event of any of the following:
1. when the customer determines that either or both parties are
not acceptable and chooses either to place the Work with the
other party, or the other party and a third party, or with
neither of the parties, ss. 1.G will apply; or
2. when a party is unable or unwilling to participate in the
proposed Work, ss.1.D. will apply.
K. During the term of this Agreement, each party is free to compete
with the other for work, except with respect to Work covered by this
Agreement.
2. PROPRIETARY INFORMATION
Any proprietary information transferred by the parties pursuant to this
Agreement shall be identified by the disclosing party as such by
appropriate stamp or marking on the documents transferred. The receiving
party will hold such proprietary information in confidence during the term
of this Agreement and for ten (10) years after its termination. During
this period, the receiving party will use such information only in
connection with its responsibilities under this Agreement and any
resulting contracts and make such information available only to its
employees having a "need to know" in order for them to carry out their
functions in connection with such responsibilities. Unless authorized in
writing by the dis-
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closing party, the receiving party will not otherwise use or disclose such
proprietary information during the ten year period. Information shall be
afforded the protection of this ss.3, except:
A. information which, at the time of disclosure, is in the public
domain through no fault of the receiving party;
B. information which, after disclosure, becomes part of the public
domain other than by the fault of the receiving party;
C. information which the receiving party acquires from a third party
without restriction on its use and/or disclosure;
D. information which the receiving party can show by written records
was developed independently of the disclosing party; or
E. information which is disclosed pursuant to a legal requirement,
provided that the receiving party shall promptly notify the
disclosing party of such requirements and the parties shall
cooperate to minimize such disclosure.
The receiving party is required to return or, if authorized, destroy all
proprietary information and all copies thereof received under this
Agreement upon written request of the disclosing party on the termination
of this Agreement, except that proprietary information necessary to
complete any outstanding obligations under this Agreement and any
resulting contracts may be retained until those obligations have been
satisfied.
3. RELATIONSHIP OF THE PARTIES
A. The parties throughout the term of this Agreement shall be
independent entities, and nothing contained herein shall be
considered to constitute a joint venture, partnership or otherwise
imply joint and several liability, nor to constitute either party
the agent of the other, nor in any manner to limit the parties in
the conduct of their respective businesses or activities with
respect to other contracts for the performance of other work.
B. This Agreement may not be assigned or otherwise transferred by a
party, in whole or in part, without the express prior written
consent of the other party.
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4. PUBLICITY
Any news release, public announcement, advertisement or other publicity
proposed to be released by a party, concerning the Work or identifying the
other party in connection with this Agreement or any resulting contract
shall be subject to the approval of the other party prior to release,
which approval shall not be unreasonably withheld.
5. TERM AND TERMINATION
A. This Agreement and all rights and duties hereunder, except those in
ss.ss.2, 5 and 6 will cease and terminate upon the first to occur of
the following:
1. the expiration of two (2) years from the date of this
Agreement unless extended by mutual agreement;
2. mutual agreement between the parties;
3. by a party giving thirty (30) days written notice to the other
party of its intent to terminate this Agreement;
4. if a party is declared bankrupt or insolvent or has a receiver
appointed for its property, or petitions for reorganization or
other benefits under the bankruptcy laws, or makes an
assignment for the benefit of creditors; or
5. in the event of a transfer by sale or otherwise of a
controlling interest in the assets of one party to a
competitor of the other party.
B. Upon termination of this Agreement, the parties agree to fulfill all
outstanding obligations to each other or to any customer under this
Agreement or resulting proposals or contracts, unless ss.5.A.4.
applies.
6. GENERAL
A. If any provision of this Agreement is found to violate any law or
regulation which in any way affects the implementation of such
provision, the parties agree to modify such provision in order to
give effect to the intent of the parties as expressed therein.
B. This Agreement shall be construed in accordance with the laws of the
State of North Carolina, excluding its conflict of laws principles.
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C. Each of the parties to this Agreement shall appoint a
representative. All communications relating to this Agreement shall
be directed to the specific person appointed by each of the parties
in this Agreement. These appointments shall be kept current during
the period of this Agreement.
DE&S
X. X. Xxxxxxx
Duke Engineering & Services, Inc.
000 Xxxxx Xxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Eurotech
X. X. Xxxxxx, Xx.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
XxXxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
D. Any dispute, controversy or claim arising out of or relating to this
Agreement or the breach thereof, shall be resolved by arbitration
before one Arbitrator in accordance with the commercial arbitration
rules of the American Arbitration Association ("AAA"). Arbitration
proceedings shall be held in Charlotte, North Carolina if Eurotech
begins the arbitration and in LaJolla, California if DE&S begins the
Arbitration, and judgment upon any arbitration award may be entered
in any court having jurisdiction thereof, the parties hereby
consenting to the jurisdiction of such courts for this purpose.
Each party shall be entitled, under the supervision of the
Arbitrator, to the amount of pre-arbitration discovery deemed
reasonable by the Arbitrator. The discovery period shall not exceed
sixty (60) days. If the parties cannot agree upon an Arbitrator, the
Arbitrator shall be appointed by the AAA. The Arbitrator's award
shall be in writing and shall be final and binding upon the parties.
The parties shall share the procedural costs of arbitration
equally unless the Arbitrator decides otherwise. Each party shall
pay its own attorneys' fees and other costs incurred by it in
connection with the arbitration.
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E. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES
WHATSOEVER, INCLUDING LOSS OF ANTICIPATED PROFITS, REVENUES OR SALES
OR GOODWILL, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE
AND STRICT LIABILITY), UNDER ANY WARRANTY OR OTHERWISE ARISING OUT
OF OR RELATING TO THE WORK OR THIS AGREEMENT AND EACH PARTY HEREBY
RELEASES THE OTHER PARTY FROM ANY LIABILITY FOR ALL SUCH LOSSES AND
DAMAGES.
F. This Agreement contains the entire agreement of the parties and
cancels and supersedes any previous understanding or agreement
related to the Work whether written or oral. All changes or
modifications to this Agreement must be agreed to in writing by the
parties.
IN WITNESS WHEREOF, the parties hereto have executed this Teaming
Agreement by their duly authorized of officers effective as of the date first
above written.
DUKE ENGINEERING & SERVICES, INC.
By: ________________________
Title: _____________________
EUROTECH LTD.
By: _________________________
Title: ______________________
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