TEAMING AGREEMENT
AGREEMENT made this 18th day of March, 1997
BY AND BETWEEN
ICF Xxxxxx Engineers, Inc.
**("Team Leader")
0000 00xx Xxxxxx
Xxx Xxxxxx, XX 00000
AND
Advanced Sciences, Inc. (ASI) (Hereinafter "Team Member")
0000 Xxxxxx Xxxx. XX Xxxxx 000
Xxxxxxxxxxx, XX 00000
Concerns the submission of a proposal to the below listed Client in response to
Client's Request for Proposal (hereinafter "RFP"):
CLIENT: Los Alamos National Laboratories
RFP NO.: ER Recompete
WHEREAS, the Client has issued an RFP for certain work (hereinafter the
"Project"); and
WHEREAS, the parties hereto intend that the Team Leader will submit a proposal
in response to the RFP (hereinafter the "Proposal"); and
WHEREAS, the parties have complementary Capabilities not available within their
respective organizations, and having assessed the capabilities of other firms
have concluded that it is to their mutual benefit to act as a team solely for
the purpose of preparing and submitting the Proposal for the Project; and
WHEREAS, the Team Leader, if it received the contract award, would be
responsible for the Project and would contemplate subcontracting portions of the
Project to other firms, including Team Member with the objective of providing
ASI with 5-6 FTE's of revenue annually subject to program funding and ASI
performance.
NOW, THEREFORE, to effectuate the foregoing, In consideration of the mutual
covenants and agreements herein set forth, the receipt and sufficiency of which
are hereby acknowledged, Team Leader and Member agree as follows:
1 PROPOSAL PREPARATION
1.1 Team Member shall submit to Team Leader all appropriate
technical and business data and information concerning its
proposed portion of the Project, including reasonable cost or
pricing data, for use in preparation of the Proposal in
accordance with the schedule set forth in Annex A. attached
hereto and incorporated herein by reference. Team Member shall
make available appropriate and high-quality personnel to
provide reasonable assistance to Team Leader in the
preparation of the Proposal as directed by Team Leader.
1.2 Team Leader will prepare the Proposal, integrate the
information provided by the Team Member and submit the
Proposal to the Client. Team Leader will include the Team
Member's price for its proposed portion of the Project in the
Proposal Team Leader shall have the final right to determine
the technical contents of the Proposal, however, Team Member
may review its portion of the Proposal prior to submittal.
1.3 Team Leader shall identify Team Member as a proposed Teaming
subcontractor and describe Team Member's Project
responsibilities in the Proposal.
1.4 Team Leader shall be the prime interface with the Client and
shall direct and coordinate all marketing activity related to
the Project. If communications are initiated by the Client
directly with Team Member concerning the Project, Team Member
shall use its best efforts to refer such communications to
Team Leader or, if referral is not possible, to coordinate
with Team Leader prior to answering such communications.
2 RELATIONSHIP OF THE PARTIES
2.1 This Agreement has been entered into solely for the benefit of
the parties hereto and is not intended to create an interest
in any third party.
2.2 The parties shall act as independent contractors in the
performance of this Agreement. Neither party shall act as
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. Nothing in this Agreement
shall be construed to grant either party the right to make
commitments of any kind for or on behalf of the other party
without prior written consent of the other party.
2.3 This Agreement shall not constitute, create, or in any way be
interpreted as a joint venture, partnership or formal business
organization of any kind.
2.4 Except for the compensation which may be paid to the parties
in accordance with any such prime contract and subcontract,
each party shall bear all of its own expenses and liabilities
incurred in connection with this Agreement, including Proposal
expenses.
2.5 No publicity or advertising regarding any proposal or contract
under the Project or relating to this Agreement shall be
released without the prior written approval of Team Leader,
which consent will not be unreasonably withheld.
2.6 To preserve the integrity of the Project and promote the free
flow of information between the parties so as to maximize the
potential for success of the Proposal, Team Member shall not,
during the term of this Agreement, as prime contractor,
subcontractor, or in any other capacity, submit any other
proposal in response to the RFP.
3 PERFORMANCE
3.1 In the event of contract award to Team Leader, the parties
hereto shall immediately commence good faith negotiations of a
subcontract based substantially on the terms and conditions
set forth in Annex B, attached hereto and incorporated herein
by reference, and consistent with the terms of this Agreement,
encompassing Team Member's proposed portion of the Project and
consistent with the requirements of the prime contract.
Subject to the requirements of the prime contract with the
Client, applicable laws and regulations, agreement on other
terms and conditions, and, if required by the prime contract,
approval of the Contracting Officer, the parties will enter
into the subcontract.
3.2 The specific work to be performed by Team Member will be
defined in the subcontract and/or in task orders issued
thereunder by Team Leader and accepted by Team Member from
time to time. Annex C, attached hereto and incorporated herein
by reference, describes basic responsibilities and
understandings of the parties relating to the anticipated
allocation of work under this Agreement.
3.3 Any subcontract entered into as contemplated herein shall
include, among other appropriate provisions, those provisions
of the prime contract between the Team Leader and the Client
which by its terms are required to be flowed down to the Team
Member. Team Member will advise Team Leader in writing as soon
as possible after execution of this Agreement, but in any
event, prior to Subcontractor's submission of its portion of
the Proposal, of any clauses or provisions of the RFP to which
Team Member takes exception. Any clauses or provisions to
which exception is not taken may be included in the
subcontract if flow down is required or appropriate.
4 PROPRIETARY INFORMATION
4.1 The parties anticipate that it may be necessary to provide
access to information of a proprietary nature ("Proprietary
Information") to each other pursuant to this Agreement in
preparation of the Proposal and/or performance of the Project.
Information that is proprietary shall be clearly identified or
labeled is such by the disclosing party at the time of
disclosure to the extent possible. When concurrent
identification of proprietary information is not feasible, the
disclosing party shall provide such identification promptly
thereafter.
4.2 The parties agree that the asserted Proprietary Information
disclosed under this Agreement derives independent economic
value, actual or potential, from not being generally known to,
and not being readily ascertainable through proper means, by
other persons who can obtain economic value from its
disclosure or use.
4.3 Each of the parties agrees that it will hold such proprietary
information confidential in the same manner as it holds its
own proprietary information of like kind. Disclosures of such
information shall be restricted to the Client and those
individuals who are directly participating in preparation of
the Proposal and other work related to the Project.
4.4 Neither party shall be liable for disclosure or use of such
information marked as proprietary which:
4.4.1 was at the time of receipt otherwise known to the
party receiving it;
4.4.2 has been published or is otherwise within the public
knowledge or is generally known to the public at the
time of its disclosure to the receiving party;
4.4.3 subsequently is developed independently by the
receiving party or by persons having nothing to do
with the subject Proposal;
4.4.4 becomes known or available to the receiving party
from a source other than the disclosing party without
breach of this Agreement by the recipient;
4.4.5 becomes part of the public domain without breach of
this Agreement by the recipient;
4.4.6 becomes available to the receiving party by
inspection or analysis of products available in the
market;
4.4.7 is disclosed with the prior written approval of the
other party; or
4.4.8 was exchanged and five years have subsequently
elapsed.
4.5 Neither the execution of this Agreement, nor the furnishing of
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.
4.6 The parties shall return all such proprietary information of
the other upon termination of this Agreement, unless a
subcontract is executed by the parties. The terms and
conditions of this paragraph 4.0 shall survive the termination
of this Agreement.
5 RIGHTS IN INVENTIONS
5.1 Inventions conceived pursuant to this Agreement shall remain
the 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, either may seek allocation of rights in a court of
competent jurisdiction. It is understood and agreed that the
Team Member may be required to and shall grant licenses or
other rights to the Client to inventions, data, and
information in accordance with the prime contract unless
exception to Rights in Data or similar contract clauses has
been taken; provided, however, such license or other rights
shall not exceed those required by said prime contract and in
no event will Team Leader obtain any such rights unless
separately contracted for. The terms and conditions of this
paragraph 5.0 shall survive the termination of this Agreement.
6 TERMINATION
6.1 This Agreement shall expire upon the happening of one of the
following events, whichever shall occur first:
6.1.1 Written notice from the Client that it will not award
a contract for the Project pursuant to the RFP.
6.1.2 Written notice from the Client of Client's final
rejection of the Proposal or award of a contract for
the Project to a firm other than the Team Leader.
6.1.3 Written notice from the Client stating its
disapproval of the use of Team Member as a
subcontractor or direction to select someone other
than the Team Member for the work identified as Team
Member's responsibility in the Proposal or otherwise.
6.1.4 Execution of a subcontract by and between the Team
Leader and the Team Member for performance of
portions of the Project.
6.1.5 The expiration of 12 months from the date of this
Agreement; provided, however, this Agreement shall be
extended for one additional year if the Proposal has
been submitted and the Client has not provided
written notice as to contract award within the
12-month period.
6.1.6 Inability of the parties to execute a subcontract
within sixty (60) days of contract award after good
faith negotiation by both parties.
6.1.7 The Client so materially modifies the requirements of
the Project that a substantial portion of Team
Member's responsibilities have been eliminated.
6.1.8 The insolvency, bankruptcy, reorganization under the
bankruptcy laws, or assignment for the benefit of
creditors of either party to the extent that there is
a reasonable doubt that such party lacks the
resources or ability to properly perform its
obligations hereunder.
6.1.9 Mutual agreement of the parties to terminate the
Agreement.
6.2 Upon a material breach of this Agreement by either party, the
non-breaching party may terminate this Agreement if such
breach remains uncured five (5) days after the breaching
party's receipt of notice of the breach.
7 GENERAL
7.1 All notices, requests, consents and other communications
hereunder shall be deemed to have been duly given if delivered
or mailed, first class, postage prepaid or by commercial
courier to each party at the address first given above.
7.2 The parties agree not to solicit the employees of the other
party who are directly associated with this Proposal, or are
listed as "key persons" under the Proposal, for the duration
of this Agreement and for a period of one year following
termination of this Agreement.
7.3 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 shall not be
unreasonably withheld. No provision of this Agreement may be
waived or modified except by a writing executed by both
parties.
7.4 If any term, provision, covenant, or condition of this
Agreement is held to be invalid or unenforceable by a court of
competent jurisdiction, it is to that extent deemed omitted
and the remainder of this Agreement shall continue in full
force and effect.
7.5 This Agreement shall be governed and construed under the laws
of the State of New Mexico.
8 ENTIRE AGREEMENT
8.1 Both parties acknowledge that they have read this Agreement,
understand it, and agree to be bound by its terms and further
agree that it is the entire agreement between parties hereto
which supersedes all prior agreements, written or oral,
relating to the subject matter hereof. No modification or
waiver of any provisions shall be binding unless in a writing
signed by the party against whom such modification or waiver
is sought to be enforced.
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.
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FOR: TEAM LEADER FOR: Team Member
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxx
--------------------------------- ----------------------------------
Signature Signature
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxx
--------------------------------- ----------------------------------
Name (Typed or Printed) Name (Typed or Printed)
March 17, 1997 April 8, 1997
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Date Date
