EXHIBIT 10.1
ALLIANCE AGREEMENT
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THIS AGREEMENT is made and entered into as of October 12, 2001, by and
between XXXXXX XXXXXXXX LLP (hereinafter "Xxxxxxxx") and Pro2, Inc. (hereinafter
"Pro2').
WHEREAS, the parties have complementary capabilities not available within
their respective organizations, and it is to their mutual benefit to act
together for the purposes of marketing, soliciting, submitting proposals and
conducting Project Management Solutions services; and
WHEREAS, Xxxxxxxx and Pro2 have been actively marketing and soliciting from
the Army National Guard a continuation of the project management work they
performed together with the Army National Guard; and
WHEREAS, Xxxxxxxx, if it receives a contract award, would be responsible
for the Project, including overall project management and execution, and would
subcontract portions of the Project to other firms, including Pro2.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth, Xxxxxxxx and Pro2 agree as follows:
ARTICLE I
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Relationship of the Parties
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1.1 - The parties shall act as independent contractors in the
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performance of this Agreement. Neither party shall act as, or be deemed to be,
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agent for or partner of the other party for any purpose whatsoever, and the
employees of one party shall not be deemed the employees of the other party.
1.2 - Nothing in this Agreement shall be construed to grant either
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Xxxxxxxx or Pro2 the right to make commitments of any kind for or on behalf of
the other party without prior written consent of the other party.
1.3 - It is understood and agreed that, prior to submitting any proposal,
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Xxxxxxxx and Pro2 will agree which firm shall be the prime contractor should the
proposal be accepted, and all proposals shall clearly disclose which firm is to
be the prime contractor.
1.4 - Xxxxxxxx shall not solicit from any other firm the specific
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services and deliverables included in Pro2's proposed portion of the Project,
unless the Client disapproves of Pro2, the parties are unable to negotiate a
subcontract agreement, this Agreement is tern-dnated pursuant to Article VII
below, or Pro2 agrees thereto.
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1.5 - Pro2 agrees that during the term of this Agreement and with
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respect to any Project targeted for proposal submission, it shall not bid as a
prime contractor or as a subcontractor to or joint venturer with any other firm
which is preparing a proposal for the same work. It is understood, however,
that Pro2 may participate in the Project with another firm in the event such
other firm is awarded the Contract to perform such work and Xxxxxxxx is not
engaged.
1.6 - All contacts with the Client with respect to the Proposal shall
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be the responsibility of Xxxxxxxx. Any contacts made by Pro2 with the Client
with respect to this project, shall be only with the full knowledge, prior
concurrence and participation of Xxxxxxxx.
1.7 - During the term of this Agreement, and for a period of one year
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inunediately following the termination of this Agreement, neither Xxxxxxxx nor
Pro2 shall knowingly make an offer of employment to any officer, partner or
employee of the other who is involved with the efforts under this Agreement,
without prior written approval of the other party.
1.8 - PrQ2 will not directly or indirectly disclose to Xxxxxxxx or to
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any party working for or with Xxxxxxxx any information or materials which
Consultant wrongfully possesses or is prohibited by private agreement, common
law or statute, rule or regulation from disclosing, or which if by private
agreement, common law or statute, rule or regulation from disclosing, or which
ff disclosed to Xxxxxxxx would, under any law, rule or regulation, give Xxxxxxxx
an illegal competitive advantage in connection with any RFP, RFQ, ITB or similar
solicitation to which Xxxxxxxx is preparing or has submitted a response.
1.9 - Business Relationship
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(A) This Agreement creates no relationship of joint venture,
partnership, or agency between the parties, and the parties acknowledge that no
other facts or relations exist that would create any such relationship. This
Agreement is only an expression of the general terms which form the basis for a
business relationship. Each party is not the agent of the other party but is an
independent contractor while performing its duties hereunder. Neither party is
granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
party or to bind the other party in any manner or thing whatsoever.
(B) Neither party nor that party's agents, principals, officers,
directors, or employees are employees of the other party. Personnel supplied by
either party to the other whether to JDE or Xxxxxxxx or its customers will be
employees of the other and will not hold themselves out as employees of JDE or
Xxxxxxxx.
ARTICLE 11
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Proposal Preparation
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2.1 - The parties shall cooperate to (1) prepare the Proposals for
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presentation to Clients and (2) secure the contract for the Project (hereinafter
called the "Contract").
2.2 - Each party shall submit to the other all necessary technical and
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business data and information concerning its proposed portion of the Project,
including accurate,
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current, complete and reasonable cost or pricing data to the extent required for
use in preparation of the Proposal. Each party shall make available appropriate
and high-quality personnel to provide reasonable assistance to the other in the
preparation of the Proposal.
2.3 - Xxxxxxxx shall prepare the entire Proposal, integrate the
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information provided by Pro2 and submit the Proposal to the Client. Xxxxxxxx
shall include Pro2's price for its proposed portion of the Project in the
Proposal. Xxxxxxxx shall consult with Pro2 on all matters regarding the content
of the Proposal, which concern the portion of the Project to be performed by
Pro2 prior to submission of the Proposal to the Client.
2.4 - Xxxxxxxx shall identify Pro2 as a subcontractor and describe
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Pro2's Project responsibilities in the Proposal. In the event of Contract
award, Xxxxxxxx shall work to secure Client approval of Pro2 as a subcontractor.
2.5 - Xxxxxxxx shall be responsible for any contract negotiations with
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the Client and, subject to Client approval, agrees to give Pro2 an opportunity
to be present at meetings with the Client, which may concern Pro2's proposed
portion of the Project.
2.6 - Each party agrees to consult with and obtain the concurrence of
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the other party prior to making any Proposal change which affects the other
party's proposed portion of the Project.
2.7 - Xxxxxxxx agrees to keep Pro2 advised of all changes in the
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Client's requirements and the probability of its receipt of the Contract award.
2.8 - Each party shall use its best reasonable and commercial efforts
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after submission of the Proposal to the Client to obtain the Contract award,
including participation in oral presentations and preparation of best and final
offers.
2.9 - Pro2 shall execute and deliver to Xxxxxxxx the representations
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and certifications, if any, contained in the RFP. Pro2 reserves the right to
submit proprietary cost information in a sealed envelope to Xxxxxxxx for
submission to the Client.
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ARTICLE III
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Performance
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3.1 - In the event a Contract is awarded, subject to the Client's
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approval, and provided each party has complied with the terms and conditions of
this Agreement, the parties hereto shall immediately commence good faith
negotiations of a subcontract (hereinafter called the "Subcontract") consistent
with the terms of this Agreement and encompassing the proposed services and
deliverables for the Project and other appropriate tasks required by the
Contract. The Subcontract shall be based on the specified prime
contractor/subcontractor in the proposal as required in Article I Sec. 1.3.
Subject to the requirements of the Contract with the Client, applicable laws and
regulations and agreement on other terms and conditions, the parties shall enter
into the Subcontract. Each party agrees to use its best efforts to secure
approval of the Subcontract by the Client in the event such approval is
necessary.
3.2 - The specific work to be performed by each party shall be defined
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in the Subcontract and/or in task orders issued thereunder from time to time.
3.3 - The Subcontract shall include, among other appropriate
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provisions, those provisions of the Contract which are required to be flowed
down to a subcontractor, and each party agrees to accept all terms and
conditions which are required to be flowed down by statute, regulation, or
explicitly by the terms of the Contract. The subcontract shall also contain
other appropriate conditions, including provisions from the Contract which
address the term of contract, confidentiality, ownership, insurance, warranty,
liability, and indemnification, as appropriate. Each party shall advise the
other party, prior to submission of the Proposal, of any clauses or provisions
of the RFP to which that party takes exception; any clauses or provisions to
which exception is not taken may be included in the Subcontract.
3.4 - The total cost or labor hourly rates to be charged shall be
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defined in the Subcontract and/or in task orders issued thereunder from time to
time.
ARTICLE IV
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Costs
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4.1 - Any and all costs, expenses, or liabilities of either Xxxxxxxx or
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Pro2 arising out of this Agreement or its implementation shall be borne by each
party separately and individually. Neither party shall be liable or obligated
to the other for any such cost, expense, or liability.
4.2- Xxxxxxxx and Pro2 agree to share joint marketing costs, promotion
and advertising fees, and other common costs on an equal basis. Such common
costs shall be agreed to prior to incurring any actually liability, and neither
party may obligate the other in the payment of any such fees without express
prior approval. Individual marketing costs (travel expenses for individuals to
attend meetings, for example) shall be the responsibility of the individual
firms.
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ARTICLE V
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Confidentiality and Nondisclosure
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5.1 - The parties anticipate that it may be necessary to provide access
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to confidential and/or proprietary information to each other pursuant to this
Agreement in preparation of a Proposal and/or performance of Project
(hereinafter called the "Proprietary Information"). Proprietary Information
shall be clearly identified or labeled as such by the disclosing party at the
time of disclosure. Where concurrent identification of Proprietary Information
is not feasible, the disclosing party shall provide such identification as
promptly thereafter as possible.
5.2 - Each of the parties agrees that it shall protect the
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confidentiality of the Proprietary Information in the same manner as it protects
its own proprietary information of like kind. Disclosures of Proprietary
In-formation shall be restricted to those individuals who are directly
participating in preparation of the Proposal and other work related to the
Project. The parties shall return all Proprietary Information of the other upon
the earlier of a request by the disclosing party or upon termination of this
Agreement.
5.3 - Neither party shall reproduce, disclose or use Proprietary
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Information except as follows:
a. Proprietary Information furnished by Xxxxxxxx may be used by Pro2 in
performing its obligations under this Agreement;
b. Proprietary Information furnished by Pro2 may be used by Xxxxxxxx in
performing its obligations under this Agreement, including preparation of the
Proposal for submission to the Client; or
C. Proprietary Information may be used by the receiving party in accordance
with written authorization received from the disclosing party.
d. To respond to a subpoena or other validly issued administrative or
judicial process.
5.4 - Nothing in this Agreement shall prohibit or limit either party's
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use of information (including, but not limited to, ideas, concepts, know-how,
techniques, and methodologies) (i) previously known to it without obligation of
confidence, (ii) independently developed by it, (iii) acquired by it from a
third party which is not, to its knowledge, under an obligation of confidence
with respect to such information, or (iv) which is or become publicly available
through no breach of this Agreement.
5.5 - Neither the execution of this Agreement, nor the furnishing of
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any Proprietary Information by either party shall be construed as granting to
the other party expressly, by implication, by estoppel or otherwise, any license
under any invention, patent, trademark, copyright or other proprietary right now
or hereafter owned or controlled by the party furnishing same.
5.6 - The provisions of this Article V shall survive termination of this
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Agreement.
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ARTICLE VI
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Rights in Inventions and Proprietary Software
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6.1 - Inventions conceived pursuant to this Agreement shall remain the
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property of the originating party. In the event of joint inventions, the
parties shall engage in good faith negotiations to establish their respective
rights. Failing agreement, each party shall have equal ownership and rights in
such joint inventions, without further obligation or accounting to the other
party. It is understood and agreed that Pro2 may be required to and shall grant
licenses or other rights to Xxxxxxxx and/or the Client to inventions, data, and
information in accordance with the Contract unless exceptions to Rights in Data
or similar contract clauses has been taken.
6.2- Software and other intellectual property currently owned by either
party shall remain the sole property of that party, and the other party shall
have no claim of ownership, license or use.
ARTICLE VII
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Termination of Agreement
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7.1 - This Agreement shall expire upon the happening of one of the following
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events:
a. Written notification to terminate the Agreement by either party to the
other;
b. The insolvency, bankruptcy, reorganization under the bankruptcy laws, or
assignment for the benefit of creditors of either party;
C. Mutual agreement of the parties to terminate the Agreement;
d. Material breach of this Agreement by either party with such breach
remaining unremedied five (5) days after receipt of notice of the breach.
ARTICLE VIII
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Limited Liability
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8.1 - Pro2 will indemnify Xxxxxxxx from any claim (including legal fees and
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expenses) of other persons or entities based on (i) the breach of any warranty
contained in Section 2 of this Agreement; or (ii) any claim of infringement of
presently existing United States patents, copyrights, trade secrets or
proprietary rights by use of the Licensed Products, so long as Xxxxxxxx promptly
notifies Pro2 of such claims and Xxxxxxxx ceases use of the Licensed Products
and Licensed Products documentation within a reasonable period if requested by
Pro2 because of a claim of infringement.
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8.2 - Xxxxxxxx and Pro2 each agree to indemnify the other from and against
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all costs and liabilities including reasonable legal fees which each may be
required to pay arising out of injuries to persons or damage to tangible
property (including data) pertaining to the furnishings of services or software
to the extent proximately caused by its negligence or willful misconduct or that
of its agents or employees; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL:
(i) THIS AGREEMENT BE CONSTRUED SO AS TO REDUCE THE PROPRIETARY RIGHTS OF
Pro2; OR
(ii) EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY LOSS OR INJURY TO
EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES OF ANY PERSON, WHATSOEVER AND HOWSOEVER CAUSED AND WHETHER ARISING IN
CONTRACT, TORT, OR OTHERWISE EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
ARTICLE IX
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General
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9.1 - Any notices, requests, consents and other communications
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hereunder shall be in writing and shall be effective either when delivered
personally to the party for whom intended, or five (5) days following deposit of
the same into the United States mail (certified mail, return receipt requested,
or first class postage prepaid), addressed to such party at the address set
forth below:
a. If to Xxxxxxxx to:
000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attn.:Xxxxx X. Xxxxxx
b. If to Pro2 to:
0000 Xx. Xxxxx Xxxxx, Xxxxx 000 Xxxxxxx, Xxxxx 00000
Attn.: Xxxxx Xxxxxxxx
9.2 - This Agreement may not be assigned or otherwise transferred by
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either party, in whole or in part, without the express prior written consent of
the other party. No provision of this agreement may be waived except by a
writing by the party to be charged nor may this agreement be amended except by a
writing executed by both parties.
9.3 - This agreement shall be governed and construed under the laws of
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the State of Texas.
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9.-4 - The foregoing represents the complete and exclusive statement of the
agreement between the parties which supersedes any prior oral or written
agreements, proposals, commitments, understandings, or communications with
respect to the subject matter of this Agreement.
9.5 - The waiver of one breach hereunder shall not constitute the
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waiver of any other or subsequent breach.
9.6 - All notices shall be in writing and sent by certified mail,
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postage prepaid, return receipt requested to the address written above or such
other address as notified to the other party and such notice shall be deemed to
be made on the fifth day after such mailing.
9.7 - No amendments, modifications or supplements to this Agreement
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shall be binding unless in writing and signed by both parties.
9.8 - No action, except with respect to the indemnification obligations
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of either party, regardless of form arising out of this Agreement may be brought
by either party more than one (1) year after the cause of action arose.
9.9 - Each party is not the agent of the other party but is an
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independent contractor while performing its duties hereunder. Neither party is
granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
party or to bind the other party in any manner or thing whatsoever.
9.10 - If any provision of this Agreement is held to be unenforceable,
such decision shall not affect the validity or enforceability of the remaining
provisions.
9.11 - This Agreement may be executed in two or more identical copies,
each of which shall be an original.
9.12 - All monetary amounts are in United States dollars, payable in
ready funds through a United States bank.
9.13 - In the event Xxxxxxxx issues a purchase order or other
instrument covering the subject matter of this Agreement, it is understood and
agreed that such purchase order is for Xxxxxxxx'x internal use and shall not
affect this Agreement.
9.14 - Each of the parties shall be responsible for all of its own
costs and expenses associated with its performance of this Agreement, including
without limitation its employees' travel and other expenses.
9.15 - Each party is not the agent of the other party but is an
independent contractor while performing its duties hereunder. Neither party is
granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
party or to bind the other party in any manner or thing whatsoever.
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9.16 - Neither party shall have the right, in whole or in part, to
assign, sublicense, or otherwise transfer this Agreement, the Licensed Products,
Licensed Products documentation, any copy of the foregoing, or any right granted
hereunder. Notwithstanding the foregoing sentence, Xxxxxxxx shall have the
right to assign, sublicense or transfer this Agreement to any entity which is a
member of Xxxxxxxx Worldwide SC, and JDE shall have the right to assign,
delegate or transfer this Agreement, or any of its rights or obligations under
this Agreement to any entity under common control and ownership, or to any
purchaser of all or substantially all of JDE's assets or stock.
9.17 - The benefits and obligations of this Agreement and the CAP
Agreement shall be available to any Xxxxxx Xxxxxxxx business unit of Xxxxxxxx
Worldwide SC ("Participant"), provided that such Participant and AA execute a
participation agreement permitting such Participant to receive the benefits and
obligations of the CAP Agreement and this Agreement.
9.18 - All terms of this Agreement that by their nature may survive the
termination or expiration of this Agreement shall survive this Agreement.
9.19 - Neither this Agreement nor the performance by the parties
hereunder shall constitute or be deemed to be an endorsement or recommendation
of the products or services of either party. Neither party shall make any press
release or other public disclosure of this Agreement or the terms hereof without
the express written consent of the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives, as of the date first set
forth above.
XXXXXX XXXXXXXX LLP
By:
Partner
PRO2 Inc.
By:
Its
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EXHIBIT A
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Additional Responsibilities of the Parties
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In support of the Proposal and in order to establish the basis for
negotiation of the Subcontract in the event Xxxxxxxx is awarded the Contract,
the following detailed responsibilities are defined and agreed to by both
parties.
1. General
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x. Xxxxxxxx shall have the overall project management responsibility and
final decision-making authority on all Project matters, including those areas
under responsibility of Pro2. Task Order project management, under the
Contract, may be seconded to Pro2.
b. Pro2 personnel shall work as members of the Project team, with assigned
tasks, deliverables and due dates. Assignments shall be made by Xxxxxxxx.
C. In order to facilitate coordination, communications and project
control, all Project work, including subcontracted work, shall be done at the
designated Xxxxxxxx Project location. Exceptions will be made for those
activities requiring work to be done at the Client sites and certain activities
which may be done at Pro2's site with prior Xxxxxxxx approval.
d. Work status reviews, Quality Assurance reviews, and approvals of major
actions in all Project related matters shall be headed by Xxxxxxxx, with the
participation of Pro2s personnel as required. Final decision-making authority
rests with Xxxxxxxx.
e. Quality Assurance procedures, the Change Control process, standards and
procedures, and project planning and reporting procedures for the overall
Project shall be established by Xxxxxxxx, in concert with Pro2 and approved by
the Client.
f. Pro2 shall deal only with Xxxxxxxx in all matters relating to the work
stated in the Subcontract. Depending on the statement of work in the Task
Order, and Pro2's role in the Task Order, client communication shall be limited
to those aspects of obtaining or confirming information for the purpose of
performing the work subcontracted.
Decisions related to Project performance, status, system architecture or any
major issue affecting the Project, are to be discussed with Xxxxxxxx prior to
joint discussion with the Client.
x. Xxxxxxxx reserves the right to approve assignment of Pro2 personnel to
the Project and to require replacement of Pro2 personnel during the Project.
2. Areas of Responsibility of the Parties
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2.1 Xxxxxxxx
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a. Proposal preparation, submission and further negotiations with the
Client.
b. Overall Project Management and Control, including Quality Assurance,
Project Planning and Control, and Change Control functions.
C. Final decision-making authority for all Project matters, including
assignment of Pro2s.
d. Primary Client interface in all matters which could change the goals and
objectives established in the Contract.
e. Reviewing, controlling and following up on all Project activities and
milestones, and prescribing corrective measures as required, including Pro2
areas of responsibility.
f. Coordination with Pro2 as required by the Project.
g. Reporting the overall Project status and performance against plans
(including Pro2 work status) to the Client.
h. Administering the Contract and subcontracts.
2.2 Pro2
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a. Assign personnel, as required, to support work under the Contract.
b. Perform work tasks assigned and supervised by Xxxxxxxx.
C. Identify primary and secondary Pro2 personnel to assume responsibility
for tasks assigned by Xxxxxxxx.
d. Participate in Project activities as required by Xxxxxxxx.
