JOINT MARKETING AGREEMENT
This Joint Marketing Agreement ("Agreement") is made and effective this October
15, 1999 by and between Tech Laboratories, Inc., a New Jersey corporation ("Tech
Labs") and TravelNet Technologies, Inc., a Canadian corporation ("TravelNet").
Tech Labs and TravelNet separately market products and/or services which are
complementary, meaning the products and/or services are each sold to the same
general end users or consumers and are often used by them for related purposes.
The parties desire to cooperate in marketing their products for their mutual
benefit.
NOW, THEREFORE, it is agreed:
1. Products.
Tech Labs will manufacture and market a hotel communications system
utilizing the DynaTraX Switch technology worldwide ("DynaTraX"). TravelNet
will sell to Tech Labs the DataValet Software System, to be marketed
worldwide by Tech Labs ("DataValet"). Tech Labs' Product and TravelNet's
Product may hereinafter be referred to collectively as the "DataValet
solution powered by DynaTraX." The Product may be marketed to and purchased
by the same categories of end users and/or consumers. Tech Labs and
TravelNet agree that each party shall have the rights to market the
Products as provided in this Agreement. This Agreement may be amended from
time to time to include additional products.
2. General Duties.
In connection with the joint marketing of Tech Labs' Product and
TravelNet's Product, the parties agree to the following mutual duties:
A. To share information with respect to product distribution channels,
methods of distribution, competitive information, and any other
information which can be disclosed without violating any law or
breaking any obligations of confidentially.
B. To include, where appropriate, literature concerning the other party's
product in individual direct mail or other direct marketing and with
product shipments.
C. To provide, at the earliest practical date, information about product
development, new Products or modification to existing Products jointly
marketed pursuant to this Agreement.
D. To share information with respect to sales leads.
E. To provide a reasonable number of samples, demonstration units, or
other models of products to the other party.
F. To mention or include the other party's products in advertisements,
brochures, promotion, and press releases.
G. To share information with respect to trade shows, seminars, and
meetings which may be beneficial to the other party.
H. To advise the other party about ideas or recommendations for new
products or enhancements to existing Products which may be appropriate
for the other party's product line.
I. To offer technical support, maintenance (including on-site maintenance
when required), installation, and deployment services to their
respective customer.
J. To send a sales projection for a 12-month period. Sale projections
have to be supplied to the other party within 60 days of the beginning
of this Agreement and every year within 60 days of the anniversary
date of this Agreement.
3. Specific Duties.
In addition to the general duties set forth in Section 2 above, the parties
agree to provide their best effort in the following specific joint
marketing activities during the Initial Term of this Agreement:
A. Trade Shows. The parties agree to provide their best effort to jointly
promote the DataValet powered by DynaTraX in trade show(s). The
parties will register for each designated trade show in their joint
names when possible. The parties may share the cost of registration
and participation in the trade show; transportation, preparation,
construction, and removal of a booth at the trade show; and reasonable
related expenses, such as cost of refreshments, and other items not
specific to the Products. Each party shall provide samples,
demonstration units, or products to display at the trade show and
special or extra customer meetings. The parties agree to provide staff
for the activities at the trade show booth.
B. Training. Each party agrees to provide one individual to attend a
sales meeting of the other party for the purpose of demonstrating and
training sales personnel with respect to the party's Product.
C. Advertising. The parties may select an advertising agency and may
jointly pay the expenses related to preparation of advertisement,
which shall equally promote Tech Labs' Product and TravelNet's
Product. Nothing shall prevent the selection of an advertising agency,
which represents or has represented either one of the parties. The
parties may share the amount paid to the advertising agency for the
joint advertisement. After the joint advertisement is prepared, each
party shall have the equal right to utilize the advertisement in the
media of its choice without limitation.
X. Xxxxx Sales, Tech Labs shall invoice all sales of the Products made by
Tech Labs to purchasers. TravelNet shall invoice all sales of the
Products made by TravelNet to purchasers.
4. Reservations of Rights.
Each party reserves all rights not expressly granted herein. Except as set
forth herein or as required by applicable law, no express or implied right
of any kind is granted to the other Party or any other party.
-2-
5. Limitation of Liability.
In no event will each Party, its subsidiaries, its associated companies, or
its licensors be liable to the other Party under this Agreement or
otherwise, or to any customer regardless of the form of claim or action, in
an aggregate amount that exceeds the total price paid to TravelNet in
respect of the Products giving rise to the claim or action purchased
pursuant to this Agreement. In no event will TravelNet its subsidiaries,
its associated companies, or its licensors be liable to a reseller or any
third party for special, consequential, exemplary, incidental, or indirect
damages or costs (including legal fees and expenses) or loss of goodwill or
profit in connection with the supply, use or performance of, or inability
to use the Products or any services provided hereunder, or in connection
with any claim arising from this Agreement, even if TravelNet, its
subsidiaries, its associated companies, or its licensors have been advised
of the possibility of such damages or costs. IN NO EVENT WILL TRAVELNET,
ITS SUCCESSORS OR ASSIGNS, ITS SUBSIDIARIES, OR ITS AFFILIATES BE LIABLE TO
RESELLER OR ANY THIRD PARTY IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT TORT
OR OTHERWISE, REGARDING ANY DEFECTS IN THE DESIGN, DEVELOPMENT, PRODUCTION,
OR PERFORMANCE OF THE PRODUCTS UNDER THIS AGREEMENT OR OTHERWISE. No action
arising out of this Agreement, regardless of any form, may be brought by
either Party or any other third party more than two (2) years after the
date the cause of action has accrued.
6. Trademarks.
"DataValet Marks" means the trademarks, service marks, trade names, logos,
and other descriptive devices of TravelNet associated with its Products.
"DynaTraX Marks" means the trademarks, service marks, trade names, logos,
and other descriptive devices of Tech Labs associated with its Products.
a) Ownership.
Tech Labs acknowledges that TravelNet is the owner of all right,
title, and interest in and to the DataValet Marks. Tech Labs covenants
not to file or prepare any application for registration of any of the
DataValet Marks without the prior approval and direction of TravelNet.
Tech Labs agrees not to adopt, use, file for registration, or register
any trademark, service xxxx, or tradename (with respect to the
DataValet Marks or otherwise) without the prior written consent of
TravelNet.
TravelNet acknowledges that Tech Labs is the owner of all right,
title, and interest in and to the DynaTraX Marks. TravelNet covenants
not to file or prepare any application for registration of any of the
DynaTraX Marks without the prior approval and direction of Tech Labs.
TravelNet agrees not to adopt, use, file for registration, or register
any trademark, service xxxx, or tradename (with respect to the
DynaTraX Marks or otherwise) without the prior written consent of Tech
Labs.
b) No Impairment.
Tech Labs agrees not to commit any acts, directly or indirectly, which
may contest, dispute, or otherwise impair the rights, title, or
interest of TravelNet in or to the
-3-
DataValet Marks. Tech Labs agrees not to claim or assert any rights,
title, or interest in or to the DataValet Marks in any way.
TravelNet agrees not to commit any acts, directly or indirectly, which
may contest, dispute, or otherwise impair the rights, title, or
interest of Tech Labs in or to the DynaTraX Marks. TravelNet agrees
not to claim or assert any rights, title, or interest in or to the
DynaTraX Marks in any way.
c) Use of Marks.
Tech Labs will not adopt for use any Marks in any manner whatsoever,
other than as may be specifically authorized in this Agreement. Tech
Labs shall not use the DataValet Marks in conjunction with any other
trademarks, trade names, service marks, logos, or other similar
designations without TravelNet's prior written approval. The Parties
agree that all use by Tech Labs of the DataValet Marks shall be in
such a manner as to inure at all times to the benefit of TravelNet,
and shall not in any manner create the impression that the DataValet
Marks belong to and are owned by Tech Labs or any other party. Tech
Labs shall not modify, delete, remove, alter, cover, or obscure the
DataValet Marks or the copyright or other proprietary notices placed
on or embedded in the Products, documentation, or any related
materials, whether obtained from TravelNet or otherwise.
d) Marketing Materials.
Tech Labs shall include the DataValet Marks in any literature,
promotional materials, or advertising which it produces or distributes
concerning the Products. Tech Labs shall provide to TravelNet samples
of all literature, promotional materials, or advertising material
which contains the DataValet Marks, for review and approval by
TravelNet prior to first use. Tech Labs will not use any such
DataValet Marks other than directly with respect to the promotion and
sale of the Products, and shall use such DataValet Marks in accordance
with applicable law.
TravelNet shall include the DynaTraX Marks in any literature,
promotional materials, or advertising which it produces or distributes
concerning the Products. TravelNet shall provide to Tech Labs samples
of all literature, promotional materials, or advertising material
which contains the DynaTraX Marks, for review and approval by Tech
Labs prior to first use. TravelNet will not use any such DynaTraX
Marks other than directly with respect to the promotion and sale of
the Products, and shall use such DynaTraX Marks in accordance with
applicable law.
7. Confidentiality.
During this Agreement, each Party may disclose to the other information
that is confidential and proprietary to the disclosing party ("Confidential
Information"). Confidential Information may include, but is not limited to,
business plans, marketing plans, financial statements, competitive
analysis, market research, Product development plans, computer programs,
designs and models, communicated orally, in writing, or by electronic
media. Confidential Information disclosed orally or electronically shall be
identified as such within five (5) days of disclosure. Confidential
Information disclosed in writing shall
-4-
be marked "Confidential." Each Party agrees that it will maintain the
Confidential Information of the other Party in confidence, and shall use
such information for the purposes of this Agreement. Confidential
Information may be disclosed by a receiving Party within its organization
only to specific employees who have a need to know such information for the
purposes of this Agreement and who have agreed in writing not to disclose
it. Upon expiration or termination of this Agreement or sooner, if demanded
by a Party, a receiving Party shall return to a disclosing Party any of the
disclosing Party's Confidential Information, including all copies thereof.
If this Agreement or any subsequent agreement between the Parties, or
extension hereof, is terminated for any reason by either Party, then and in
that event, Tech Labs and TravelNet shall retain the ownership of its
Products, as well as to any and all modifications, improvements, and
extensions of the Product. The obligations of each party in this Section
shall continue for a period of two (2) years following the expiration of
this Agreement. The obligations of this Section shall not apply to any
Confidential Information.
A. Is or becomes public through no act of a receiving party;
B. Is rightfully received from a third party without obligations of
confidentiality; or
C. Is independently developed by a receiving Party without reference to
the other Party's Confidential Information.
8. Conflicts.
During this Agreement and for a period of six (6) months thereafter, each
Party agrees that it will not engage in any marketing, promotion,
advertising, or sales effort, individually or jointly, with respect to any
product that is competitive with the other Party's Product or with respect
to any entity that markets, promotes, or sells a product in competition
with the other Party. Nothing herein shall prevent either Party from
engaging in any activity that promotes any other product or entity that
does not compete with the other Party or its products.
9. Term and Termination.
A. The "Initial Term" of this Agreement shall start on September 10, 1999
and shall end on September 10, 2002. At least sixty (60) days prior to
the end of the Initial Term or any renewal term as provided herein,
the Parties shall each notify the other as to whether it desires to
renew this Agreement. If either Party notifies the other that it does
not desire to continue this Agreement, then the Agreement shall end
upon the expiration of the Initial Term or renewal term. If, however,
both Parties desire to renew the Agreement, then the Parties shall
meet to confer and determine the following:
(i) their specific duties for the renewal term in lieu of the
specific duties set forth in Section 3 herein as applicable
to the preceding Term or renewal term;
(ii) the period for the renewal term; and
(iii) any other proposed amendments. If the parties fail to agree
on all of the foregoing items before the end of the Initial
Term or renewal term, then this Agreement shall expire as of
the end of the Initial Term or renewal term. If the
-5-
Parties agree to all of the foregoing items, then the
Agreement will continue with such specific duties and other
amendments for the renewal term agreed upon.
B. This Agreement may be terminated at any time upon the occurrence of
any of the following events:
(i) If either of the Parties fails to meet 50% of the sales
projections.
(ii) If either of the Parties shall default on any material
obligation and such default is not cured within fifteen (15)
days following notice from the other Party.
(iii) If a Party files a petition of bankruptcy, is insolvent,
makes an assignment for benefit of creditors or if a trustee
or receiver is appointed for a Party, and such remaining of
the foregoing remains undismissed for a period of sixty (60)
days.
(iv) Either Party shall cease to do business, Tech Labs ceases to
market Tech Labs' Product, or TravelNet ceases to market
TravelNet's Product.
10. Final Agreement.
This Amendment to the Joint Marketing Agreement terminates and supersedes
all prior understandings or agreements on the subject matter hereof. Only a
further writing that is duly executed by both Parties may modify this
Agreement.
11. Severability.
If any term of this Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, then this Agreement, including all of the
remaining terms, will remain in full force and effect as if such invalid or
unenforceable term had never been included.
12. Notices.
Any notice required by this Agreement or given in connection with it, shall
be in writing and shall be given to the appropriate Party by personal
delivery or by certified mail, postage prepaid, or recognized overnight
delivery service.
If to Tech Labs:
Xxxxxxx X. Xxxxxxxx, President
Tech Laboratories, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxx Xxxxxx 00000
And if to TravelNet:
Xxxxxxxx Xxxxxxxx
TravelNet Technologies, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
-6-
13. Governing Law and Arbitration.
A. This Agreement shall be construed and enforced in accordance with the
laws of the state of New Jersey.
B. The Parties agree that they will use their best efforts to amicably
resolve any dispute arising out of or relating to this Agreement. Any
dispute that cannot be resolved amicably shall be settled by final
binding arbitration in accordance with the rules of the American
Arbitration Association and judgment upon the award rendered by the
arbitrator or arbitrators may be entered in any court jurisdiction
thereof. Any such arbitration shall be conducted in Paterson, New
Jersey or such other place as may be mutually agreed upon by the
Parties. Within fifteen (15) days after the commencement of the
arbitration, each Party shall select one person to act as arbitrator,
and the two arbitrators so selected shall select a third arbitrator
within ten (10) days of their appointment. Each Party shall bear its
own costs and expenses, and an equal share of the arbitrator's
expenses and administrative fees of arbitration.
14. No Assignment.
Neither Party shall assign this Agreement or any interest or obligation
herein without the written consent of the other Party.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS Agreement as of the date
first above written.
TravelNet Technologies, Inc.
By: /s/
------------------------------
Xxxxxxxx Xxxxxxxx, President
Tech Laboratories, Inc.
By: /s/
------------------------------
Xxxxxxx X. Xxxxxxxx, President
-7-
ATTACHMENT "A"
DYNATRAX EQUIPMENT PRICING
1. TravelNet System Pricing
o Software
o Hardware
o Services
2. Tech Laboratories, DynaTraX pricing
a) Basic System 36 x 36
b) Switch Component Prices
3. Terms and Conditions
-8-
Data Valet Hotel System Pricing (continued)
TravelNet Technologies, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Data Valet Hotel System Pricing
Tech Labs
Item Part Number Description Prices
---------------------------------------------------------------------------------------------------------------------
1. TNT05D4FF Data Valet Demo License $5,000
2. Data Valet Annual License Fee (price includes all optional services listed below)
-----------------------------
TNT05140F 50 Rooms $4,000
TNT05240F 100 Rooms $5,655
TNT05340F 150 Rooms $6,975
TNT05440F 220 Rooms $7,575
TNT05540F 250 Rooms $8,000
TNT05640F 300 Rooms $9,000
TNT05240F 400 Rooms $11,200
TNT05240F 500 Rooms $13,225
Optional Data Valet Services
----------------------------
TNT05y401 Print Service, TNT05y402 Fax Service, TNT05y403 E-mail Service,
TNT05y408 Work Group Service, TNT05y40Fxx All application services,
TNT05B4 Business Lounge, XXX00X0xx Xxxxxxxx Xxxxxx, XXXX0X0xx
Xxxxxx Xxxx, XXX00X00X Account Manager, TNT05X42F Service
Management, TNTP5X43F Network Management.
3. High Speed Modem Sensor Option
TNT080025 25 Line Sensor $3,375
TNT081025 Sensor Management Software $3,375
TNT080200 Billing Solution $4,875
4. Plug and Play Annual Software License Fee(price includes optional services listed below)
-----------------------------------------
TNT025G0D Demo Unit $5,000
TNT025G01 10 Users (100 rooms) $1,650
-9-
Data Valet Hotel System Pricing (continued)
Tech Labs
Item Part Number Description Prices
---------------------------------------------------------------------------------------------------------------------
TNT025G02 25 Users (250 rooms) $3,250
TNT025G05 50 Users (500 rooms) $5,000
TNT025G50 100 Users (1,000 rooms) $6,925
Plug and Play Services
----------------------
TNT025Mff Meeting Room Support, TNT025Pf Public Area Support, TNT025Bff
Business Lounge Support, TNT025Kff Kiosk Support.
5. Services
On-Site manpower $500 per man/day
Travel (direct reimbursement)
Lodging $175 per day
(includes all services related to installation, testing, cut over, and training)
6. Manuals
Operations $0
Training $0
Sales & Marketing $0
7. Hardware
2 ea. Servers (IBM Netfinity 300/41U or HP Net Server LPR PII $6,000
1 ea. 24 port Bay Network 303-24 Switching HUB $1,500
-10-
3. Terms and conditions:
o List Pricing and discounts are subject to change with ninety (90)
days' prior written notice.
o All price quotation are firm for sixty (60) days.
o All prices for Tech Laboratories products are FOB, New Jersey.
o All prices for TravelNet products are FOB, Montreal.
o Payment for International sales (excluding Canada) will be letter of
credit.
o Prices are exclusive of any U.S. and International duty or other
taxes.
o Prices do not include cost of on-site installation.
o On-site training and installation support will be provided for $55 per
hour plus travel and per diem expense. Minimum time for any on-site
project is 8 hours.
-11-
