EXHIBIT 10.12
TEAMING AGREEMENT
THIS TEAMING AGREEMENT ("Agreement"), made and entered into as of this 9th day
of July 2004, by and between AccuPoll, Inc., a Delaware corporation (hereinafter
"AccuPoll"), with offices located at 00000 Xxx Xxxx Xxx., Xxxxx 000, Xxxxxx, XX
9278, and Alternative Resources Corporation, a Delaware corporation with offices
located at 000 Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000-0000 (hereinafter
"Partner").
PREMISES
AccuPoll and Partner believe they will benefit from a teaming
arrangement to develop the best management and technical approach for proposals
to be submitted to various customers.
AccuPoll and Partner have agreed to assign responsibilities for the
work on each proposal and the work to be performed for each customer in
Opportunity Plans to be negotiated by the parties and incorporated into this
Agreement as set forth below.
In consideration of the mutual promises in this Agreement, the parties
agree as follows:
AGREEMENT
1. An "Opportunity" is a sales opportunity. The parties may agree to
initiate a single Opportunity or multiple Opportunities with each other
covering work for one or more customers. Neither party will be obligated
to the other under this Agreement until their authorized representatives
execute a separate written "Opportunity Plan" for the each customer and
Opportunity. Each executed Opportunity Plan will be attached to and
incorporated into this Agreement as an Exhibit. Each Opportunity Plan
will designate one of the parties as the prime contractor (the "Prime")
and the other party as the subcontractor (the "Subcontractor") for the
Opportunity and will apportion the work and responsibilities for the
Opportunity between the two parties.
2. The Prime will submit the proposal to the customer for the Opportunity
and subject to any conditions set forth in the Opportunity Plan, will
include the other party as a proposed subcontractor. In designating the
Prime for each Opportunity, the management of the parties will consider
such factors as the relationship with the customer, the role of each in
project management, and the relative size and importance of their
respective scopes of work.
3. Each party will use its best efforts to produce proposals that will cause
the selection of the Prime for the Opportunity and the acceptance of the
Subcontractor for the work assigned to it. Each party will negotiate in
good faith the contracts or subcontracts that result from the proposals.
4. In any proposal and in all discussions with the customer, each party
will:
o Identify the other party as its team member
o State the relationship of the parties as set forth in this
Agreement
o Describe the scope and responsibility of each party as set forth
in the Opportunity Plan.
5. Each party will furnish all proposal material pertinent to its scope of
work as defined in the Opportunity Plan attached as an Exhibit, including
but not limited to, manuscripts and art works. The parties will furnish
qualified personnel who will cooperate in drafting a proposal.
6. The Subcontractor will assist the Prime as reasonably requested,
including without limitation, providing management and technical
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personnel for discussions and negotiations with the customer.
Notwithstanding the foregoing, the parties, as between themselves, shall
be deemed to be independent contractors, and the employees of one shall
not be deemed to be the employees of the other.
7. Each party will bear all costs, risks and liabilities incurred by it and
arising out of its obligations and efforts under this Agreement during
the pre-proposal and proposal periods, which are defined as the periods
up to an award of a prime contract and subcontract. The Prime will be
responsible for the graphic arts, printing, binding, and delivery costs
of the proposal. Neither party shall have any right to any reimbursement,
payment or compensation of any kind from the other during the period up
to the award of a prime contract and subcontract.
8. The Prime will have the sole right to decide the form and content of all
documents submitted to the customer; however, the Prime will afford the
Subcontractor the opportunity to review the form and the content of the
proposal and will make reasonable efforts to ensure that the
Subcontractor's information is appropriately presented. The Subcontractor
will offer the Prime its advice and aid, and will prepare the substantive
content of its area of the proposal and other documents. Before
submitting the proposal, the Prime will provide the Subcontractor a
reasonable opportunity to review the proposal and provided comments.
9. If a prime contract ("Contract") is awarded as a result of the proposal
submitted to the customer, the Prime will, to the extent permitted by
customer's rules, regulations and applicable law, enter into good faith
negotiations with the Subcontractor for a subcontract for the subcontract
work set forth in the Opportunity Plan. The subcontract work must be
performed in accordance with the Contract schedule and technical
specifications at a mutually agreed price. Agreement on a subcontract
must be reached within such time as the Prime deems necessary to meet the
requirements of the Contract. The terms and conditions of the subcontract
will be generally consistent with the terms and conditions in the
Contract, including any contract provisions required by the Customer. The
subcontract terms and conditions will not conflict with customer rules or
policies or applicable laws and regulations.
10. The customer may direct the Prime to place the work contemplated as the
Subcontractor's responsibility to another source or direct that such work
be competitively bid. In either case, the Prime will comply with the
customer's direction and will have no further obligation to the
Subcontractor with respect to that particular proposal, except as
regarding the protection of proprietary data. The Prime will take no
action that would cause or tend to cause the customer to disapprove the
Subcontractor.
11. The Prime will be the primary contact with the customer concerning a
proposal. If it becomes desirable for the Subcontractor to contact the
customer concerning the proposal, the contact shall be approved by the
Prime to ensure coordination of efforts and understanding of commitments
prior to such contact. The Prime's approval will not unreasonably be
withheld.
12. Although the Prime is the primary interface with the customer on the
Opportunity, the Subcontractor may have continuing relations with the
customer and in the course of such relations may receive inquiries
concerning the Opportunity. Such communications by the customer directly
with the Subcontractor concerning the Opportunity shall not be a breach
of this Agreement, provided the Subcontractor timely informs the Prime
about the contact.
13. If the Prime is to make presentations to the customer concerning a
proposal, the Prime will inform the Subcontractor of the content of the
presentations, subject to any prohibitions or restrictions which the
customer may impose. If a presentation relates to the Subcontractor's
scope of work, the Subcontractor will support it as requested by the
Prime.
14. Any news release, public announcement, advertisement or publicity
released by either party concerning this Agreement, or any proposals,
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resulting contracts, or subcontracts, will be subject to the prior
approval of the other party, except that this Agreement and the terms
thereof may be made known to a customer. Any such publicity shall give
due credit to the contribution of each party.
15. Each party will designate in writing one or more individuals as its
representative(s) responsible for performance of the party's obligations.
16. "Confidential Information" means any and all non-public technical or
business information, including third party information, furnished or
disclosed by one party (the "Disclosing Party") to the other party (the
"Receiving Party") that, if in a tangible medium, the Disclosing Party
has marked as "confidential," "proprietary" or similarly at the time of
disclosure and that, if disclosed orally, the Disclosing Party indicates
as confidential or proprietary at the time of disclosure and
subsequently, within twenty (20) days after the date of such oral
disclosure, confirms as confidential or proprietary in a writing sent to
the Receiving Party that describes the information that is to be kept
confidential. Each party will maintain all Confidential Information it
receives from the other in confidence using commercially reasonable
standards and no less care than it uses with its own information, and
will use and disclose such information only as contemplated by this
Agreement or as authorized by the Disclosing Party. Each party will
require its personnel to do likewise. These obligations do not apply to
information that is:
(a) Generally available to the public other than by a breach of
this Agreement;
(b) Rightfully received from a third party lawfully in
possession of the information and not subject to a
confidentiality or nonuse obligation;
(c) Independently developed by the Receiving Party or its
personnel, provided the persons developing the information
have not had access to the information of the Disclosing
Party; or
(d) Already known to the Receiving Party prior to its receipt
from the Disclosing Party.
The Receiving Party may disclose Confidential Information of the
Disclosing Party to the extent that such disclosure is:
(a) Approved in writing by the Disclosing Party;
(b) Necessary for the Receiving Party to enforce its rights
under this Agreement in connection with a legal proceeding;
or
(c) Required by law or by the order of a court or similar
judicial or administrative body, provided that the
Receiving Party notifies the Disclosing Party of such
required disclosure promptly and in writing and cooperates
with the Disclosing Party, at the Disclosing Party's
reasonable request and expense, in any lawful action to
contest or limit the scope of such required disclosure.
17. The delivery of information to the Receiving Party does not grant any or
imply any license to the Receiving Party, under any trademark, patent or
copyright, or applications, which are now or may hereafter be owned by
the Disclosing Party. All information is provided "AS IS" without any
warranty whatsoever, including without limitation any warranty as to the
accuracy, reliability or fitness of such information for any particular
purpose.
18. Each Opportunity Plan shall remain in force for three (3) months from its
effective date unless earlier terminated as provided in this Agreement or
the Opportunity Plan. If an award is made under a proposal, then the term
of the Opportunity Plan will be extended through the period of
subcontract negotiations between Subcontractor and Prime with respect to
the Opportunity Plan. Each Opportunity Plan shall terminate upon the
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execution of a subcontract pertinent to the Opportunity or upon the
earliest to occur of the following, unless extended by mutual agreement
of the parties:
a. An official customer announcement that an award will not be
made based on the Opportunity.
b. An official customer announcement that the Opportunity has
been canceled.
c. An official customer announcement that the program giving
rise to the Opportunity has been canceled.
d. Upon the award of a prime contract for the Opportunity to a
contractor other than the Subcontractor or Prime.
e. The customer selects either party but not both, to
participate with one or more other contractors on the
Opportunity.
f. The Prime is unable to obtain customer approval of the
Subcontractor, and the terms of the proposed subcontract
cannot reasonably be altered to obtain the customer's
approval.
g. Mutual consent of both parties by written agreement.
h. Inability of Subcontractor and Prime, after negotiating in
good faith, to reach agreement on the terms of a
subcontract.
i. Either party is legally barred from participating in a
particular Opportunity.
Either party may terminate this Agreement for convenience by providing
thirty (30) days written notice to the other party. Unless the parties
otherwise agree in writing, a termination for convenience shall not
terminate any existing Opportunity Plans. Existing Opportunity Plans will
terminate as provided above.
19. If a particular Opportunity is terminated pursuant to paragraph 18,
either party shall be free to pursue the Opportunity in association with
the successful contractor or a third party, subject to the provisions of
paragraph 17 with respect to Confidential Information.
20. Except as the customer requests, the parties will not actively
participate in efforts that compete with an Opportunity Plan or compete
independently for work covered by an Opportunity Plan during the duration
of the Plan. "Active participation" includes the exchange of Opportunity
specific technical data with competitors and the formulation of marketing
strategies.
21. Subject to each party's right to seek injunctive or equitable relief in a
court of competent jurisdiction, each party agrees to resolve all
disputes under this Agreement in accordance with the dispute resolution
procedures set forth below.
22. Each party will promptly notify the other in writing of any dispute. The
parties' designated representatives will meet within ten (10) days
following the receipt of such written notice and will attempt to resolve
the dispute within fifteen (15) business days. If the parties agree, a
dispute may be mediated. The parties will select a mediator within twenty
(20) days of agreeing to mediate. Any claim or dispute arising out of or
relating to this Agreement shall be resolved by binding arbitration under
the Commercial Rules, but not the administration, of the American
Arbitration Association. To the extent the Commercial Rules conflict with
this provision, this Agreement shall control. Either party may seek
preliminary or permanent rights and/or remedies, judicial or otherwise,
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to maintain the status quo until the arbitration award is rendered or the
dispute is otherwise resolved. The arbitration shall be conducted in
Denver, Colorado and the laws of Colorado (except its conflict of laws
provisions) shall govern the interpretation of this Agreement. Within 10
calendar days of service of a Demand for Arbitration, the parties shall
agree upon a sole arbitrator. If a sole arbitrator cannot be agreed upon,
a panel of three arbitrators shall be named. Each party shall select one
arbitrator. The two arbitrators selected by the parties shall select a
knowledgeable and impartial third arbitrator. If the arbitrators
appointed by the parties cannot agree upon the third arbitrator within
ten (10) calendar days, either party may apply to court of competent
jurisdiction to appoint the third arbitrator. There shall be no discovery
during the arbitration other than the exchange of the information the
parties provide to the arbitrator(s). If damages are to be awarded, the
arbitrator(s) shall only award equitable relief and compensatory damages
and shall not award punitive or other non-compensatory damages. The
arbitrator(s) shall render a decision within sixty (60) calendar days
after the date of his/her/their selection or within such period as the
parties may otherwise agree. Each party shall be responsible for the fees
and expenses incurred by the arbitrator it appointed. The fees and
expenses of a sole arbitrator or the third arbitrator (or) shall be borne
equally. The decision of the arbitrator(s) shall be final and binding and
may not be appealed. A party may apply to any court having jurisdiction
to obtain a judgment enforcing the decision of the arbitrator(s). The
parties may cancel or terminate this Agreement in accordance with its
terms and conditions without following the procedures in this Article.
Any dispute or other action arising out of this Agreement must be brought
within two years of the date the cause of action accrued.
23. All notices, certificates, acknowledgments and other reports, shall be in
writing and shall be deemed properly delivered when mailed by certified
letter (or other express mail which requires receiving signature) to the
other party at its address as set forth in the introductory paragraph to
this Agreement, or to such other address as either party may designate by
written notice to the other.
24. This Agreement does not restrict the rights of the parties to quote,
offer to sell, or sell to others any products or services that it
otherwise regularly offers for sale; provided, those products or services
are not uniquely identified with an Opportunity and are not being
proposed in response to the Opportunity.
25. This Agreement does not constitute or create a joint venture,
partnership, or formal business organization of any kind, other than a
contractor team arrangement. The rights and obligations of the parties
are only those expressly set forth in this Agreement. Neither party has
authority to bind the other except to the extent expressly authorized in
this Agreement. The parties shall remain independent contractors at all
times and neither party shall act as the agent for the other.
26. Nothing in this Agreement shall be construed as providing for the sharing
of profits or losses arising out of the efforts of either or both of the
parties.
27. Neither party will be responsible or liable to the other party or any
third party for any lost profits, indirect, special, punitive, incidental
or consequential damages of any kind.
28. This Agreement may not be assigned or otherwise transferred by either
party in whole or in part without the express prior written consent of
the other party, which consent will not unreasonably be withheld. The
foregoing will not apply if either party changes its name or merges with
another corporation.
29. This Agreement shall not be amended or modified, nor shall any waiver of
any right hereunder be effective unless set forth in a document executed
by duly authorized representatives of both parties. The waiver of any
breach of any term, covenant or condition herein contained shall not be
deemed to be a waiver of such term, covenant or condition or any
subsequent breach of the same or any other term, covenant or condition
herein contained.
30. The content of this Agreement may be made known to appropriate customer
representatives by either party, if requested by the customer.
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31. Nothing in this Agreement is intended to affect the rights of a customer
to negotiate directly with either party on any basis that customer may
desire.
32. This Agreement and the Opportunity Plans contain all of the agreements,
representations and understandings of the parties with respect to its
subject matter and supersedes any and all previous understandings,
commitments or agreement, oral or written, related to the Opportunities
and resulting Contracts or subcontracts.
33. If any part, term or provision of this Agreement shall be held void,
illegal, unenforceable, or in conflict with any applicable law, the
validity of the remaining portions or provisions shall not be affected
thereby.
In witness whereof, the parties hereto have executed this Agreement on the date
first set forth above.
Accupoll, Inc. Alternative Resources Corporation
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxx Name: Xxxxx Xxxxxxx
------------------------------------ --------------------------------
Title: President Title: Chief Financial Officer
----------------------------------- --------------------------------
Date: Date:
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Exhibit No. 1 - Opportunity Plan
For Xxxx County, IL RFP
This Opportunity Plan was prepared by AccuPoll and Partner in accordance with
their Teaming Agreement dated ______________, 200__ and is incorporated into the
Teaming Agreement as Exhibit No. 1 when executed by the authorized
representatives of both parties.
1. Background
Request for Proposal (RFP) issued by Xxxx County, IL and City of
Chicago, IL on June 14, 2004 for replacement/upgrade of current voting
system. AccuPoll agreed to prime with subcontractors Alternative
Resources Corporation (ARC) and Synch-Solutions.
2. Scope and Objectives of Proposal
A complete proposal for a replacement or upgrade of the existing voting
system used by Xxxx County and the City of Chicago.
3. Roles and Responsibilities
a. Prime Responsibilities: Prime Contractor management,
submission and execution of the proposal, provision of the
AccuPoll DRE voting system.
b. Subcontractor Responsibilities: ARC to provide project
management and deployment services as required and proposed.
Synch-Solutions to deliver training and voter outreach
services as required and proposed.
a. Joint Responsibilities: Bid and Proposal efforts and costs.
4. Review and Approval
a. Proposal: TBD
b. Communications: TBD
5. Rules of Engagement
Each party is responsible for content of the proposal.
6. Proposal and Delivery Team
Prime Team Members: AccuPoll
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Subcontractor Team Members: Alternative Resources Corporation and
Synch-Solutions
Executive Sponsors: Xxxxx Xxxxx (AccuPoll)
-----------------------------------
Corporation) (Alternative) Resources
(Synch-Solutions)
------------------------------------
7. Initial Investment
To be determined in subsequent planning meetings between the parties.
Each party will be responsible for its own bid and proposal costs.
8. Contact Responsibilities
To be determined in subsequent planning meetings between the parties.
Accupoll, Inc. Alternative Resources Corporation
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------------- ---------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxxxx
----------------------------------- -------------------------
Title: President Title: Chief Financial Officer
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Date: Date:
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