KOREA TELECOM CAMA PROJECT
TEAMING AGREEMENT
ACE*COMM/SAMSUNG
This Agreement is entered into effective _________________, between SAMSUNG
ELECTRONICS COMPANY, LTD (SAMSUNG), having its principal place of business
located at Samsung Main Building, 250, 2-Ka, Taepyung-Ro, Chung-Ku, Xxxxx,
000-000, Xxxxx, and AMERICAN COMPUTER AND ELECTRONICS CORPORATION (ACE*COMM),
a Maryland Corporation with offices located at 000 Xxxxx Xxxxxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000, hereinafter "the Parties."
WHEREAS, Korea Telecom (KT) has established requirements to collect its
billing data in an effective, accurate, and timely manner. Specifically, KT
desires to replace its current recording and collection method using magnetic
tape drives with an automated electronic data capture, transmission, and
distribution system and refers to this work activity as the XX XXXX Project
(hereinafter "the Project");
WHEREAS, the Consortium (the "Consortium" refers to each of the three
companies individually as well as collectively as follows: Samsung
Electronics Company, Ltd., LG Information and Communications, Ltd., and ILJIN
Corporation) desires to cooperate to meet the requirements of the XX XXXX
Project;
WHEREAS, KT has selected the Consortium to accomplish the Project utilizing
their own resources and those that are available in the market;
WHEREAS, the Consortium has selected ACE*COMM as the supplier of products and
services in connection with the Project;
WHEREAS, ACE*COMM desires to cooperate and work with the Consortium to meet the
Project requirements and provide products and services in connection with the
Project;
WHEREAS, KT is expected to award the Project to the Consortium upon
successful trial demonstration, the Consortium and ACE*COMM (collectively
the Project Team ) realize that they must take reasonable steps to align
resources to utilize the strengths of each Team Member and work with each
other openly;
WHEREAS, the Project Team desires to collaborate as described herein to
support the Project, and each have entered into a separate Teaming Agreement
with ACE*COMM for such purpose,
NOW THEREFORE, in consideration of the mutual promises set forth herein, the
Parties agree as follows:
A. Scope of the Agreement
This Agreement is applicable only to the Project. The Parties agree that
their work in connection with the Project will be conducted in two Phases,
with Phase I being a trial to demonstrate the ability of ACE*COMM to
deliver Extract Devices (EDs) functionally consistent with KT requirements
(the "Trial") and Phase II being the delivery of the full scope of the KT
requirement (343 ED systems). The objective of this Agreement is to set
forth the terms and conditions pursuant to which the Parties will cooperate
in the execution of the Trial for the Project, and in the event such Trial
is successful, to set forth the process by which the Parties will negotiate
and implement a contract with Korea Telecom in connection with the Project.
B. Nature of the Cooperation
(1) The Parties agree to take reasonable steps to cooperate to maximize
the chances of a successful Trial on terms and conditions satisfactory
to both. In this regard, the Parties agree during the term of this
Agreement to collaborate on an exclusive basis in developing,
submitting, and conducting a Trial for the Project. If this Agreement
terminates pursuant to Section N, each Party shall be free,
thereafter, to sell its products or services or otherwise participate
in the Project.
(2) The Parties agree that there will be a Trial Phase (Korea Telecom
Verification Test) to demonstrate the ability of ACE*COMM to deliver
Extract Devices (EDs) functionally consistent with KT requirements.
This Phase will be conducted based upon the time line portrayed in
Annex 2 and the Acceptance Plan documented in Annex 4. Each of these
Annexes shall become and constitute an integral part of this
Agreement. In the Trial Phase, ACE*COMM will perform all necessary
modifications of its DCMS architecture necessary to comply with ED
specifications which will be contained in Annex 8 of this Agreement,
which shall become and constitute an integral part of this Agreement.
(3) Upon successful completion of the Trial Phase, and upon KT purchase of
the ACE*COMM EDs for the Project, the Trial EDs will be replaced by
the commercial product with a full credit for the price of the Trial
EDs.
(4) The terms and conditions for the supply of EDs are contained in Annex
7 of this Agreement.
(5) The Parties agree that the Project shall be presented as a combined
effort with support from ACE*COMM as named sub-contractor. As among
the Parties, it is agreed that SAMSUNG will assume a role as team
leader,
2
with overall responsibility for integrating the business and technical
aspects of the Project, in consultation with and as supported by
ACE*COMM, but with each Party assuming full responsibility for its own
Project Share, as defined below.
(6) Except as otherwise specified in the Agreement, no Party shall be
authorized to act for, or on behalf of, the other Party for any
purpose related to the Project except as may be authorized in writing
by that other Party.
(7) Nothing contained in this Agreement shall be construed or interpreted
to the effect that the Parties hereto have established or intend to
establish any form of corporate association, agency or partnership,
other than the specific cooperation arrangement established by this
Agreement.
C. Division of Responsibilities
(1) Each Party shall be solely and entirely responsible for offering, and
in case of award of contract for the Project, carrying out of such
part of the Project as is defined as its area of responsibility (said
area of responsibility and any revision thereof are referred to as
"Project Share"). The framework and principles governing the
determination of each party's Project Share are set forth in Annex 1
hereto, which Annex forms an integral part of this Agreement. Prior
to executing a contract with KT for the Project, the Parties will
define more precisely the allocation of their respective
responsibilities, together with specific terms (including price)
governing their performance, which will be reflected in supplementary
contracts between the Parties.
(2) Other equipment and services required for the Project and not
specifically allocated as part of one party's Project Share shall be
selected by SAMSUNG.
(3) The Parties recognize that timeliness of performance will be critical
to the success of the Project. Therefore, as soon as feasible, the
Parties will agree to a time-line for the performance of their various
responsibilities under this Agreement, which time-line will be
attached hereto as Annex 2 and which shall become and constitute an
integral part of this Agreement. ACE*COMM agrees to the milestone
dates presently included in Annex 2 based on the understanding between
the Parties. Such time-line, with any agreed to modifications as
evidenced in writing, shall also be incorporated into the subsequent
contracts between the Parties contemplated by Section C(1).
D. Subcontractors and Assignment
No Party shall assign, transfer, or delegate its interest in this Agreement
or the rights granted herein in any manner. This Section shall not
preclude the use of a
3
sub-contractor by any Party to perform a portion of that Party's Project
Share, provided that such Party remains solely and entirely responsible for
the satisfactory performance of its Project Share, including the
performance of its subcontractors.
E. Coordinating Council
Upon signature of this Agreement, each Party shall designate a
representative who shall be primarily responsible for representing such
Party and working with the representatives of the other companies making up
the Consortium. Such representatives shall form a Coordinating Council,
which shall regularly meet and/or consult in order to decide on the
activities to be undertaken under this Agreement and in order to assure the
proper coordination among the Project Team with regard to such activities
and in particular in the preparation of the Project for KT.
F. Preparation of The Project
(1) The Parties hereto shall prepare in joint consultation, each at its
own expense, their respective engineering contribution to the Project
in accordance with the time schedule to be established as Annex 2.
The separate contributions of each shall be integrated through the
efforts of the Coordinating Council to form a single proposal for the
Project. SAMSUNG shall assume a leadership role in integrating the
technical and commercial aspects of the Project. The Parties shall
undertake to reach agreement during the period of preparation of the
Project on matters of common interest in the Project.
(2) In order to clearly define all of a technical, commercial or other
nature to ensure a Trial which is as complete as possible, each Party
will coordinate its Project Share with the other Party and disclose to
the other Party upon request such technical, commercial and other
information as may reasonably be required in order to avoid
inconsistencies in the Project. Disclosure of the Parties
confidential or proprietary information or material shall be
governed by Section K hereof to the extent applicable.
(3) Each Party shall be responsible that its contribution to the Project
covers all details of the Project comprised in its Project Share, and
any error or omission occurring shall be the responsibility of the
Party in whose Project Share such errors or omissions have occurred,
and each Party hereto shall save harmless and indemnify the other
Party from and against any loss or damage sustained by the other Party
by reason of such errors or omissions (consequential or indirect
damages or lost profit excluded).
(4) Each Party will inform the other Party as appropriate of any problems
of which it is aware and which will prevent it from meeting the
requirements and obligations arising out of this Agreement.
4
G. Relationship to Korea Telecom
(1) SAMSUNG will be the responsible agent on behalf of the Parties for
dealing with KT for their portion of the Project.
(2) Under this Agreement ACE*COMM's intellectual property is protected
under the terms of the Non Disclosure Agreement, Annex 5, entered into
by Consortium and KT on December 5, 1995.
(3) No contract or commitments will be entered into on behalf of a Party
without the written consent of that Party.
H. Conduct of the Trial
The parties shall conduct the Trial on or before the date agreed upon.
I. Award of Contract
(1) Each Party shall carry out its Project Share for its own risk and
account in accordance with the conditions of such contract and this
Agreement.
(2) Each Party shall assume for its Project Share the associated risks,
and will indemnify and/or save harmless the other Party in respect of
costs for claims, damages, or liabilities which might arise out of or
in consequence of the carrying out of its Project Share where the
cause of such claim, damage or liability is properly attributable to
the act or omission of that Party; if the cause of such claim, damage
or liability is attributable to another Project Team Member or to more
than one Member, then the cost thereof will be settled in such
equitable ratio as will be agreed upon, and where the cause of such
claim, damage or liability is not properly attributable to one of the
Parties hereto, then the costs thereof will be settled in proportion
to the value of the Project Shares of the Parties involved in
proportion to the relative size of their Project Shares.
J. Project Management
In the event of a successful Trial, SAMSUNG shall be responsible for
managing the Parties obligations to KT. Upon signature of a contract with
KT in connection with the Project, SAMSUNG shall designate a project
manager who shall be responsible for managing these obligations, and whose
tasks will include, but not be limited to:
(1) project control, including scheduling management, coordination and
administration of the Project;
(2) contract administration, including the submission of invoices to KT,
and the disbursement of payment to the Parties;
(3) coordination among the Parties;
5
(4) administration of a Trial Acceptance Test Plan (KT Verification Test)
intended to validate that the ED meets the specifications will be the
responsibility of the Customer, Korea Telecom.
K. Use of Information
(1) During the term of this Agreement, the Parties may provide each other
with confidential, proprietary information pertaining to their
business plans, products, technology and operations for purposes of
preparing the Project or working in connection with the Project. The
protection and use of such ACE*COMM confidential, proprietary
information shall be governed by Annex 5 (Non-Disclosure Agreement
signed by the Parties) which constitutes an integral part of this
Agreement.
(2) The provisions of this Section K, regarding the use and protection of
ACE*COMM confidential, proprietary information, shall survive
termination or expiration of this Agreement as follows:
(a) If termination or expiration is effected under paragraph
N(1) hereof, such provisions of Section K shall survive such
termination or expiration for three (3) years thereafter,
(b) If termination or expiration is effected under paragraphs
N(2), N(3), or N(4), such provisions of Section K shall
survive such termination or expiration for five (5) years
thereafter. To the extent any timeframe for survival in
this section K(2) differs from any timeframe for use and
protection of ACE*COMM confidential, proprietary information
provided in Annex 5 hereto, the longer of such timeframes
shall apply.
L. Industrial Property Rights
ACE*COMM agrees to grant Samsung a non-exclusive, royalty-free, perpetual,
and non-transferable license to use and modify source code and technical
information provided herein in accordance with the Source Code License
Agreement of Annex 6. This license, software, and information shall be used
exclusively to support KT in the XX XXXX Project. Additionally, Samsung
may provide a sub-licenses to KT under the same terms and conditions of the
Source Code License Agreement of Annex 6. No other sub-licenses shall be
granted by Samsung to any other party.
M. Export Control Compliance
Each Party acknowledges that the products to be transmitted or sold in
accordance with this Agreement may be subject to export and re-export
restrictions under the United States Department of Commerce Export
Administration Regulations ( Regulations ) and may require the specific
written permission of the U.S. Department of Commerce to export or
re-export the commodities outside the
6
country of destination of such commodities listed in Seller's xxxx of
lading ("Destination Country"). Each Party further acknowledges that any
product manufactured by either Party incorporating any item(s) furnished
hereunder may also require the specific written permission of the US
Department of Commerce for export from the Destination Country, as
described in Part 776.12 of the Regulations.
Each Party assures the other Party that it does not intend to and will not
knowingly, without the prior written consent, if required, of the US
Department of Commerce, transmit, sell, transfer or convey, directly or
indirectly, any of the technical information or software referenced in this
Agreement;
Each Party further assures the other that it will not transmit, sell,
transfer or convey any commodities, technical information or software
received under this Agreement to any individuals or entities listed in the
Table of Denial Orders, as published in Supplement Nos. 1 and 2 to Part 788
of the Regulations.
N. Term and Termination
(1) This Agreement shall become effective upon signature by all Parties
and continue in force for three (3) years after and may be renewed by
mutual written consent after such three (3) years.
(2) This Agreement shall terminate upon occurrence of any of the following
events:
(a) cancellation of the Project by KT;
(b) final rejection during the Trial Phase or award of the Project to
an entity who does not belong to Consortium;
(c) the date upon which the Parties enter into subsequent contracts
governing their performance of the Project;
(d) June 30, 1997, in the event that no contract in connection with
the Proposal has yet been awarded to SAMSUNG.
(3) In addition to the above, any Party may terminate this Agreement on
thirty (30) days written notice to the other Party that the other
Party has breached the Agreement (including a failure of a Party to
perform its responsibilities hereunder), and such breach is not
satisfactorily cured by the breaching Party within the thirty (30) day
period.
(4) Each Party further shall have the right by written notice to
immediately terminate this Agreement if:
(a) Either of Parties become bankrupt or has a receiving order made
against it or shall file a petition in bankruptcy or shall make
an arrangement with or an assignment in favor of creditors; or
(b) SAMSUNG, for any reason, is disqualified for bidding or carrying
out its Project Share.
7
O. Arbitration
Any controversy or claim, whether based on contract, statute, tort, fraud,
misrepresentation or other legal theory, related directly or indirectly to
this Agreement, except any action arising out of or relating to the
Non-Disclosure Agreement of Annex 5 hereto and Source Code License
Agreement of Annex 6 hereto and Terms and Conditions For Delivery of
Extract Devices of Annex 7 hereto; whenever brought, will be resolved by
arbitration in accordance with the terms of this Section. The rules of the
International Chamber of Commerce will govern the arbitrability of all
claims.
A single arbitrator who is mutually agreeable to the Parties and
knowledgeable in the development and provision of telephony operations
systems will conduct the arbitration under the then current rules and
supervision of the International Chamber of Commerce. The arbitrator's
decision and award will be final and binding and may be entered in any
court with jurisdiction. The arbitrator will not have authority to award
punitive or other non-compensatory damages to either party. The
arbitration will be held in Maryland if SAMSUNG claims; or in Seoul,
the Republic of Korea if ACE*COMM claims.
Each party will each bear its own attorney's fees associated with the
arbitration, and pay all other costs and expenses of the arbitration as the
rules of the International Chamber of Commerce provide.
P. Choice of Law and Forum
This Agreement shall be governed and shall be construed in accordance with
the substantive laws of the State of Maryland of the USA.
Q. Notices
Any notice to be given under this Agreement shall be provided in writing,
to the person, and at the address listed below until further notice:
SAMSUNG ELECTRONICS COMPANY, LTD
[Name] Xx. Xxxxx Xxx
[Address] World Xxxxx Xxxx., 0xx Xxxxx,
0-00, Xxxxxxxxx-xxxx, Songpa-Ku
Xxxxx, 000-000, Xxxxx
[Facsimile] 011-82-2-3434-3201
8
ACE*COMM
[Name] Xx. Xxxxxx X. Xxxxxxxx
[Address] 000 Xxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000
[Facsimile] (000) 000-0000
R. Validity
If any part, term, or provision of this Agreement shall be held void,
illegal, unenforceable, or in conflict with the law of any relevant
jurisdiction, it shall be assumed that the validity of the remaining
portions or provisions shall not be affected thereby.
S. Entire Agreement
This Agreement sets forth the entire understanding among the Parties
concerning its subject matter and supersedes any prior written or oral
communications and agreements. This Agreement shall be amended or changed
only by mutual written consent of duly authorized representatives.
T. No Claim
Notwithstanding the foregoing, ACE*COMM shall not claim or xxx SAMSUNG
for any cause solely attributable to LGIC and/or ILJIN.
U. Signature
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement effective as of the day and year
first above written.
SAMSUNG ELECTRONICS AMERICAN COMPUTER AND
COMPANY, LTD. ELECTRONICS CORPORATION
By: By :
-------------------------------- ---------------------------
Name: Name: Xx. Xxxxxx X. Xxxxxxxx
------------------------------ ---------------------
Title: Title: Vice President
----------------------------- --------------------
Date: Date:
------------------------------ ----------------------
9
