EXHIBIT 10.13
TEAMING AGREEMENT
THIS AGREEMENT (the "Agreement"), made and entered into as of the 1 s`
day of December 2002 (the "Effective Date"), by and between AccuPoll, Inc.
("AccuPoll"), Electronic Data Systems Corporation ("EDS") and EDS Information
Services L.L.C. ("EIS"). Any obligations to be performed by EDS may be performed
by EDS and/or its wholly-owned subsidiaries, including EIS, and any reference in
this Teaming Agreement to EDS shall be deemed to include such subsidiaries.
WITNESSETH:
WHEREAS, the state governments listed in Schedule D (the "Government")
intend to each issue a Request for Proposal(s) to procure a contract with a
vendor to provide a voting system for the purpose of conducting elections on
behalf of the Government (the "Project");
WHEREAS, the parties have complementary capabilities and believe it is
to their mutual benefit to act as a team for the purpose of preparing and
submitting proposals (the "Proposal") in response to the RFPs and performing
under any resulting contracts; and
WHEREAS, the parties desire to establish the terms and conditions of
such teaming arrangement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1.0 APPLICABILITY. This Agreement is in effect only as to the scope of work set
forth in Schedule A hereto.
2.0 PROPOSAL ACTIVITIES.
2.1 The parties are committed to develop the best possible problem
understanding, Proposal organization, marketing approach and
technical solution for meeting the RFP requirements. Each party
shall participate in and support the Proposal effort in the areas
of its responsibility. Subcontractor's area of responsibility is
set forth in Schedule A hereto. The parties agree to furnish each
other information and materials necessary to assist in developing
and preparing sections of each Proposal and any modification
thereto. Each party will timely provide the other with all
technical, management, cost and pricing data, information,
certifications and affidavits, resumes and materials necessary to
facilitate the successful completion of the procurement process.
Such information shall be submitted in a format that is
consistent with the RFP requirements.
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2.2 at all times during the term of this Agreement, the parties each
agree to _ keep the other informed of inquiries from or contacts
with the Government as may concern each RFP, Proposal, Project or
related procurement issues. 2.3 To maximize the potential for
securing award of the Project, AccuPoll and EDS agree to jointly
develop competitive pricing models. Accordingly, ' AccuPoll and
EDS agree to develop creative and very competitive pricing based
on the work to be undertaken by each. 2.4 The parties will each
treat the other with the respect and trust with which they treat
their respective customers. In addition, the employees of
AccuPoll and EDS shall obey all pertinent rules and regulation of
the other party while on the premises of the other party,
including those relating to the safeguarding of confidential
information. 2.5 The parties will endeavor will comply at all
times with the provisions of the representations, certifications
and affidavits included in the RFP. Each party shall notify the
other immediately if it has knowledge, constructive or actual, of
any instances of any material breach or noncompliance with such
certifications and affidavits and, further, the non-complying
party will indemnify the other party for any and all costs or
damages incurred by it as a result of such breach of non
compliance. 2.6 In consideration of the mutual benefits
anticipated from a successful Proposal effort in response to each
RFP, each party shall bear its own respective costs, expenses,
risks and liabilities arising out of performance hereunder. 2.7
Neither party nor its parent corporation, subsidiaries, or
affiliates shall support or assist in any manner in conjunction
with a third party with the submission of a proposal that would
compete with the respective Proposal.
3.0 AWARD OF SUBCONTRACT.
3.1 If AccuPoll is selected by the Government as the prime contractor
under the RFP, and the Prime Contract contains a requirement for
the scope of work described in Schedule A, AccuPoll agrees to
negotiate in good faith an agreement with EDS for the scope of
work set forth in Schedule A. The parties agree to enter into
good faith negotiations relating to Subcontract as soon as
practicable.
3.2 The award of the Subcontract contemplated under this Agreement is
subject to all of the following conditions:
3.2.1 Award of a prime contract to AccuPoll;
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3.2.2 The Government's specific approval of EDS as a
Subcontractor if required; and
3.2.3 Mutual agreement of the parties hereto to the statement of
work, financial terms, and contractual provisions.
4.0 PROPRIETARY INFORMATION. All proprietary and confidential information that
may be exchanged between the parties during the term of this Agreement
shall be handled in accordance with the terms and conditions set forth in
that certain Confidentiality Agreement between the parties dated October 7,
2002, a copy of which is attached hereto as Schedule C.
5.0 DISPUTE RESOLUTION. In the event of any dispute or disagreement between the
parties hereto, either with respect to interpretation of any provision of
this Agreement or with respect to the performance by AccuPoll or by EDS
hereunder, which cannot be resolved in the normal course of business, then
upon written notice of either party, each of the parties will appoint a
designated officer whose task it will be to meet for the purpose of
endeavoring to resolve such dispute or to negotiate for an adjustment to
such section or provision of this Agreement. The designated officers shall
meet as often as the parties reasonably deem necessary in order to gather
and furnish to the other all information with respect to the matter in
issue which the parties believe to be appropriate and germane in connection
with its resolution. Such officers will discuss the problem and/or
negotiate the applicable section or provision without the necessity of any
formal proceeding relating hereto. During the course of such negotiation,
all reasonable request made by one party to the other for information will
be honored in order that each of the parties may be fully advised in the
premises. The specific format for such discussions will be left to the
discretion of the designated officers but may include the preparation of
agreed upon statements of fact or written statements of position furnished
to the other party. No formal proceedings for the judicial resolution of
such dispute may be commenced until (i) resolution as contemplated in this
clause has been unsuccessful, and (ii) either of the parties concludes in
good faith that amicable resolution through continued negotiation of the
matter in issue does not appear likely.
6.0 TERM AND TERMINATION.
6.1 The term of this Agreement shall commence as of the Effective Date
and, expect as it relates to proprietary and confidential information,
this Agreement shall terminate when any one of more of the following
events occur, without further obligation or liability between the
parties:
(1) mutual agreement of the parties;
(2) cancellation of the RFP by the Government;
(3) AccuPoll determines not to submit a Proposal in response
to the RFPl;
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(4) the RFP is modified or amended resulting in a realignment of
work responsibilities or products or services required and
the parties are unable to agree on an appropriate division
of the realigned work responsibilities;
(5) the filing by or against EDS or AccuPoll in any court of
competent jurisdiction of a petition in bankruptcy or
insolvency, or for reorganization, or for the appointment of
a receiver or trustee; or the making of an assignment for
the benefit of creditors;
(6) the expiration of one (1) year from the date of this
Agreement; or
(7) AccuPoll is not awarded the Prime Contract pursuant to the
RPP.
6.2 This Agreement may be extended by mutual agreement of the parties.
7.0 LIMITATION OF LIABILITY. In the event of any breach by either party of its
obligations under this Agreement, such party shall be liable for direct
damages suffered by the other party that are caused by such breach in
accordance with applicable law. In no event shall either party be liable to
the other for special or consequential damages any kind or nature whether
alleged to be attributed to such breach of Agreement, to tort or negligence
or otherwise caused, expect to the extent of the indemnification provision
herein for tort claims resulting in bodily injury or property damage. In no
event shall either party be liable to the other for lost profits resulting
from an alleged breach of this Agreement even if, under applicable law,
such profits would not be considered consequential or special damages.
8.0 PUBLICITY AND NEWS RELEASES. No releases shall be made by either party
hereto to the news media or the general public relating to the parties'
cooperation on, or respective participation in, the Proposal effort,
without the prior written approval of the other.
9.0 INDEMNIFICATION. The parties shall indemnify and hold the other harmless
form any and all claims, actions, damages and liabilities (including
reasonable attorney's fees) arising directly and proximately out of the
indemnifying party's negligence, or willful, wanton or reckless conduct
resulting in death or bodily injury or damage to any real or tangible
personal property.
10.0 NOTICES. Wherever one party is required or permitted to give notice to the
other pursuant to this Agreement, such notice shall be deemed given when
delivered in hand, via overnight courier, or three (3) days after being
mailed by first-class United States mail, postage prepaid, and addressed as
follows:
If to EDS: Electronic Data Systems Corporation
00000 XXX Xxxxx, X0X-X00
Xxxxxx, Xxxxxxxx 00000
Attention: Counsel, State & Local Government
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If to AccuPoll : AccuPoll, Inc.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
11.0 LIMITS OF AGREEMENT.
11.1 This Agreement relates exclusively to the pre-Proposal, Proposal, and
resultant contract efforts in support of or required by the two
subject Projects or RFPs, and the scope of work defined in Schedule A.
It in no way constitutes an understanding in regard to other programs
or business activities, nor an understanding as to any other
agreement.
11.2 Nothing in this Agreement shall be deemed to constitute, create, give
effect to, or otherwise recognize a joint venture, partnership,
pooling arrangement, formal business entity or any type of permanent
arrangement, and the employees of one party shall not be deemed
employees of the other.
11.3 Nothing herein shall be construed as providing for the sharing of
profits or losses arising out of the efforts of either or both of the
parties.
11.4 Nothing in this Agreement shall grant to either party the right to
make commitments of any kind for or on behalf of the other party
without the prior written consent of the other party.
11.5 Neither party may assign or transfer its interest herein without the
prior written consent of the other part, which consent shall not be
unreasonably withheld. This approval requirement shall not apply to
the assignment to any successor corporation in the vent of merger or
consolidation.
12.0 SEVERABILITY. If, and only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable or void, then
both parties shall be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it legal and enforceable while preserving its intent. If
that is not possible, another provision that is legal and enforceable and
achieves the same objective shall be substituted. If the remainder of this
Agreement is not affected by such declaration or finding and is capable of
substantial performance, then the remainder shall be enforced to the extent
permitted by law.
13.0 SURVIVAL OF TERMS. Termination or expiration of this Agreement for any
reason shall not release either part from any liabilities or obligations
set forth in this Agreement which (i) the parties have expressly agreed
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shall survive any such termination or expiration, or (ii) remain to be
performed or by their nature would be intended to be applicable following
any such termination or expiration.
14.0 GOVERNING LAW. The construction, enforceability, validity, and
interpretation of this Agreement shall be deemed in accordance with the
laws of the State of Virginia.
15.0 ENTIRE AGREEMENT AND MODIFICATION. This Agreement, including any Schedules
and documents referred to in this Agreement or attached hereto, each of
which is incorporated herein, constitutes the entire and exclusive
statement of agreement between the parties with respect to its subject
matter and there are no oral or written representations, understandings or
agreements relating to this Agreement which are not fully expresses herein.
The parties agree that any other terms or conditions, quotes, invoices,
acknowledgements, bills of lading or other forms utilized or exchanged by
the parties shall not be incorporated herein or be binding unless expressly
agreed upon in writing by authorized representatives of the parties. No
modification, change or amendment hereof shall be valid unless such is in
writing and signed by the authorized representative of the party against
which such modification, change or amendment is sought to be enforced.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized representative as of the day and year first
above written.
ELECTRONIC DATA SYSTEMS ACCUPOLL, INC.
CORPORATION
By: By:
Name: Name:
Title: Title:
EDS INFORMATION SERVICES
L.L.C.
By:
Name:
Title:
ATTACHMENTS:
Schedule A, Scope of Work
Schedule B, [intentionally left blank
Schedule C, Non-Disclosure Agreement
Schedule D, Government Jurisdictions
