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EXHIBIT 10.2
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING ("MOU"), Date is made by and between Amigas
Venture Group, Inc., a Florida corporation ("AMIGAS") with a place of business
at 0000 X.X. 00 Xxxxxx, Xxxxx, Xxxxxxx 00000 and Centrack International, Inc., a
Delaware corporation ("CII") with a place of business at 00000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000.
BACKGROUND
1. The International Trade Data Resource and Research Center, Inc. a
Florida not-for-profit corporation, doing business as the Florida Trade
Data Center ("FTDC"), has designed, developed and implemented the first
production version of the "Americas Information Gateway System
(AMIGAS)" (the "System"), an Internet based trade promotion and
electronic commerce portal.
2. FTDC created AMIGAS to serve as the System's electronic gateway
services company to provide information and electronic commerce
solutions in connection with the implementation of the System segmented
into three (3) functional areas, 1) marketing strategy, 2) information
management and 3) internet/intranet technology;
3. CII is an internet based advertising service for used heavy equipment
in the construction, mining and forestry industries.
4. AMIGAS and CII desire to establish a program of joint customer referral
and marketing distribution that will facilitate the creation of new
revenues and increase market exposure of the System, AMIGAS' services
and CII's internet site.
NOW, THEREFORE, the parties set forth below the framework for certain matters
and agree as follows:
1. COOPERATIVE ALLIANCE.
Through this MOU and the definitive agreement following from this MOU, the
parties agree to engage in a cooperative alliance as set forth in this MOU, and
to the extent permitted by applicable law and regulation, to provide information
and electronic commerce solutions to CII's and AMIGAS' customers (the
"Alliance"). The information and electronic commerce solutions will include but
will not be limited to CII's and AMIGAS' products and services. To facilitate
the formation and continuing success of electronic solutions initiatives, the
parties agree to make certain business level commitments on a start-up and an
on-going basis. The parties anticipate that this business level commitment will
be fulfilled by each party providing contributions (monetary or in kind), human
resources, accounts and/or sales or marketing targets, which are reciprocal and
commensurate between the parties and, on a summary basis, will include the
following:
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1.1 CII and AMIGAS will provide or be responsible for the matters
described in Attachment A.
2. TERM; TERMINATION.
2.1 The term of this Alliance will begin as of the date of this
MOU, and will continue in effect until (i) both parties execute a definitive
agreement regarding the foregoing subject matter which expressly supersedes this
MOU; or (ii) six months from the date of this MOU if a definitive agreement has
not been executed, or (iii) either party gives written notice to the other
expressly terminating this MOU for (a) cause, defined as willful misconduct or
gross negligence on the part of a party, (b) non-performance, defined as the
failure of the other party to perform to measurable standards of market
competitiveness along parameters mutually defined and agreed, or (c) a change in
circumstances, whereby each party has the unilateral ability to withdraw from
and to terminate this MOU and this Alliance upon sixty (60) days written notice
provided to the other party.
In the event of termination, the party responsible for the termination
shall provide a mutually agreed, reasonable, but in any event no longer than
thirty (30) day transition period to the other party, during which the parties
shall continue to provide the then relevant products, services and support each
to the other while the parties make provisions to operate following the
termination. Thereafter, all obligations of the parties, each to the other,
shall cease, provided, however, that the respective obligations of each party
under this MOU which by their nature would continue beyond the termination,
cancellation or expiration of this MOU, shall survive.
3. TERRITORY.
The scope of activities under the terms of this MOU is not limited to
any state, territory or country.
4. NON-EXCLUSIVE RIGHTS.
This MOU does not represent, and in no way should imply, a commitment
by either party to purchase or sell any products or services of the other party.
None of the activities to be performed under this MOU are or are intended to be
exclusive (unless stated otherwise), and each party or any affiliate may engage
any third party to perform the same or similar activities or to enter into any
similar MOU's or other agreements with any third party.
5. INTELLECTUAL PROPERTY OWNERSHIP; USE OF MARKS
The parties will be contributing intellectual property to the Alliance.
The parties agree that the ability to service their markets is crucial to the
business future of each party. Therefore, the parties agree that ownership of
and intellectual property rights in inventions, discoveries, ideas,
improvements, computer and other apparatus programs and related documentation
and other works of authorship, whether or not patentable, copyrightable or
susceptible to other forms of protection created under this MOU (hereinafter
referred to as "Intellectual Property") shall be subject to the following terms,
unless otherwise provided in an attachment.
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5.1 Ownership of Intellectual Property shall be as follows:
(a) Intellectual Property already developed or owned by
AMIGAS or CII prior to the effective date of this MOU shall remain the property
of the party, with no obligation to license the property to the other party.
(b) Unless otherwise agreed to by the parties,
Intellectual Property that is developed by one party shall be owned by that
party, with no obligation to license the Intellectual Property to the other.
Either party may, however, propose a licensing agreement with the other party,
whereby the other party would be allowed to use and modify the Intellectual
Property to develop the other party's applications.
(c) Intellectual Property that is Jointly Developed, as
that term is defined below, shall be owned jointly by the parties. Each party
shall have an equal, undivided one-half interest in and to any Jointly Developed
Intellectual Property without any obligation to account to or share with the
other party any benefits or compensation received from licensing or exploitation
of any the Intellectual Property. "Jointly Developed" shall mean that (1) the
Intellectual Property was conceived or reduced to practice by one or more
employees of AMIGAS with one or more employees of CII; or (2) that one or more
of the employees of one of the parties contributed an independent part of the
entire Intellectual Property that, together with the parts produced by the
employees of the other party creates the whole Intellectual Property; or (3) in
the case of Intellectual Property that is an invention, that one or more
employees of one of the parties conceives the invention and one or more
employees of the other party makes an inventive contribution to the invention
conceived by the employees of the other party.
(d) With respect to Jointly Developed Intellectual
Property, each party shall, at the earliest practical date, apprise the other of
each piece of Jointly Developed Intellectual Property, why the party believes
that it constitutes Jointly Developed Intellectual Property, and explain the
party's participation in the Jointly Developed Intellectual Property.
(e) With respect to Jointly Developed Intellectual
Property that is an invention, the parties shall share equally in the expenses
of seeking and maintaining patent protection for the invention, except that
either party at its own expense may seek and maintain patent protection for both
parties if the other party declines to share the expenses.
(f) Either party may file a copyright registration in the
joint names of both parties on any Intellectual Property. The non-filing party
shall cooperate in every reasonable way, at its own expense, with the filing
party to obtain the registration.
5.2 Licensing of any Intellectual Property solely owned by a party
to the other party shall be on reasonable terms and conditions to be mutually
agreed to in a licensing agreement between the parties.
5.3 Intellectual Property resulting from a party's improvements or
modifications of the other party's Intellectual Property shall be owned by the
party creating or conceiving the improvements or modifications. Any license of
the underlying Intellectual Property, however, to the improving party shall
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be at the sole discretion of the party whose Intellectual Property was improved
or modified, and subject to the terms and conditions of sections 6.1(a), 6.1(b),
and 6.1(c).
5.4 Enforcement of Jointly Developed Intellectual Property rights
shall occur as follows:
(a) Each party shall notify the other party promptly upon
the discovery of an apparatus or method, which may infringe the Jointly
Developed Intellectual Property rights or be a misuse of Confidential
Information. After notification, either or both parties may begin litigation or
take other enforcement action.
(b) If one party chooses to begin litigation regarding
the Jointly Developed Intellectual Property rights or misuse of Confidential
Information or chooses to take other enforcement action, the other party may, at
its option, join the action. If the other party joins the action, the parties
shall be responsible for an equal share of the costs incurred in the action.
Additionally, the parties shall be entitled to an equal portion of any monetary
settlement or judgment, which may ultimately be awarded to the parties as a
result of the action. If both parties are involved in the action, the parties
shall share decision-making when practical. At the beginning of the action, one
of the parties will be appointed to have final decision if the parties are
unable to agree.
(c) If the other party declines to join in litigation or
other enforcement action, the party declining shall not assume liability for any
cost incurred in the action, nor will that party be entitled to any portion of a
monetary settlement or judgment which may ultimately be awarded as a result of
the action.
(d) Nothing in this section shall be construed to require
that either party take action to enforce its rights against any or all suspected
infringements of any Intellectual Property right.
5.5 AMIGAS will grant to CII and CII grants to AMIGAS for the term
of this MOU a limited non-exclusive license to use their respective service and
trade marks (Marks) in a mutually agreed upon format (i.e. electronic, camera
ready, etc.) and listed in Attachment B. The use of the Marks will be in
accordance with the guidelines described in Attachment B hereof and paragraph
5.6. Each party will supply to the other party sample copies of the party's
promotional materials that utilize the other party's marks prior to the use of
the materials. Each party, within five business days from the date the materials
are submitted for approval will indicate its approval or disapproval of the
materials. If a party determines that the other party has not adhered to the
applicable guidelines for use of the xxxx the party will make the necessary
mutually agreed upon corrections to the materials. If the parties cannot agree
on the use of the materials in the xxxx in question, the submitting party shall
not use the submitted materials.
5.6 In using each other's Marks, the parties shall include proper
ownership identification as described in Attachment B hereof or as may be
approved in writing from time to time by the other party on any advertising and
collateral materials. Each party agrees that it will only use the other's Marks
in connection with this MOU and Attachment B hereof, that all use will be in
conformance with the other party's graphic standards for the Marks. Forms of
advertising and promotions are subject to prior written approval of the other
party, and in no event shall a party use the other party's Marks in any manner,
which is detrimental to the goodwill and prestige associated with the Marks.
AMIGAS' and CII'S Marks are described in Attachment B. Each party shall promptly
discontinue any use of the other party's Marks
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objected to by the party, and upon termination of this MOU, the parties agree
not to issue or release for publication any article, advertising or publicity
matter relating to this MOU or mentioning or implying the name of the other
party or its subsidiaries, affiliates, officers, directors or employees unless
written consent is granted by the party. The parties hereby acknowledge and
agree that the other party's Marks are valid marks, are the exclusive property
of the party and all use thereof shall inure to the benefit of the party. Each
party further agrees that this MOU does not confer any right on the other party
to grant sublicenses or assign a party's Marks. Each party shall notify the
other party of any unauthorized use of the party's Marks or any marks
confusingly similar thereto by others promptly as it comes to the party's
attention. Each party shall, unless it grants to the other party permission to
do so, have the sole right to engage in infringement or unfair competition
proceedings involving the party's Marks, and shall reasonably cooperate in the
prosecution or defense by the party of any proceedings. Each party covenants and
agrees that it will not adopt, use or attempt to register in any state, federal
or other forum in the United States or any other country, any word, name,
symbol, or device or any combination thereof which is confusingly similar to the
other party's Marks or any portion or portions thereof. Other than expressly set
forth in this MOU, no license under any trademark, patent or copyright, or
applications, which are now or may thereafter be owned by either party, is
either granted to the other party or implied by this MOU.
5.7 As used in sections 5.5 and 5.6 the reference to the other
party or the party's Marks, shall in the case of AMIGAS also be deemed a
reference to FTDC or its Marks.
6. CONFIDENTIALITY.
6.1 In the course of performing their obligations under this MOU,
it may be necessary for AMIGAS or CII to disclose to the other information that
it considers confidential and proprietary, including information furnished to
either party by customers ("Information"). Any Information disclosed by AMIGAS
or CII either orally or in writing shall be treated as confidential and shall be
subject to the confidentiality obligations of this Section 6. Without limiting
the generality of the foregoing, Information shall not include information about
which the receiving party can conclusively establish: (i) was in the possession
of the receiving party at the time of disclosure; (ii) prior to or after the
time of disclosure becomes public knowledge without the act or omission of the
party to whom it was disclosed; (iii) is disclosed to the receiving party by a
third party under no legal obligations to maintain the confidentiality of such
information; or (iv) was independently developed by the receiving party without
reference to the Information of the disclosing party.
6.2 Each party agrees to use the same degree of care to protect
the Information from disclosure to third parties as it uses to protect its own
information of similar importance. Disclosures of the Information shall be
restricted to the parties' employees, consultants and agents on a need to know
basis who are directly participating in any activity covered by this MOU.
6.3 The Information furnished shall be used and reproduced only in
connection with performance under and for the purposes of this MOU.
6.4 The limitations on reproduction, disclosure, and use of the
Information shall lapse three (3) years after the termination of this MOU, or
upon the occurrence of one of the following events: (i) if
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such Information is publicly available or later becomes publicly available other
than through a breach of this MOU; (ii) if such Information is furnished to a
third party by the disclosing party without similar confidentiality restrictions
on the third party's rights; or (iii) if disclosure of the Information is
compelled by court order, or judicial or administrative process, provided,
however, that the limitations on reproduction, disclosure, and use will not
lapse with respect to Information which is considered trade secret under
applicable law so long as that Information remains a trade secret. In addition,
a party shall not be liable for reproduction, disclosure, or use of the
Information disclosed to it if the Information is known to the party prior to
disclosure; is independently developed by the party subsequent to disclosure; or
is lawfully obtained by the party from a third party without obligations of
confidentiality.
6.5 Notwithstanding the above requirements, either party may
disclose to the customer or other subcontractors, Information necessary for the
party to perform its obligations under this MOU, provided that an agreement
which imposes confidentiality obligations similar to these contained in this
section 6 is in effect with the other party.
6.6 These confidentiality obligations shall not prevent either
party from developing, acquiring, and furnishing to its customers products or
services being furnished under this MOU, provided that such is accomplished
without use of the Information disclosed.
6.7 All marketing and other information developed by AMIGAS during
the term of this MOU shall be considered AMIGAS Information. All marketing and
other information developed by CII during the term of this MOU shall be
considered CII Information.
7. PUBLICITY.
Except as required under United States Securities Laws, neither party
shall issue a press release or make any public announcements or disclosures
(including disclosures to third parties under a nondisclosure agreement, except
as otherwise provided herein) concerning this MOU or the activities of or
relationship with the other party with respect to this MOU without the other
party's prior approval.
8. INDEMNIFICATION.
8.1 Each party agrees to indemnify and save harmless the other
party from any liabilities, causes of action, lawsuits, penalties, claims or
demands (including the costs, expenses and reasonable attorneys, fees on account
thereof) that may be made: (1) by anyone for injuries of any kind, including but
not limited to personal injury, death, property damage and theft, resulting from
the indemnifying party's negligent or willful acts or omissions or those of
persons furnished by the indemnifying party, its agents or subcontractors, or
resulting from the indemnifying party's failure to perform its obligations under
this MOU; or (2) by any of either the indemnifying party, its agents' or
subcontractors' employees or former employees for which the indemnifying
party's, its agents' or subcontractors' liability to such employee or former
employee would otherwise be subject to payments under state Worker's
Compensation laws, premises liability principles or any other law or form of
legal duty obligation; or (3) by either indemnifying party's, its agents' or
subcontractors' employees or former employees, including applicants, for any and
all claims arising out of the employment relationship with respect to performing
under this
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MOU, including but not limited to, employment discrimination charges and actions
arising under Title VII of The Civil Rights Act of 1964, as amended; The Equal
Pay Act; The Age Discrimination Disabilities Act; The Fair Labor Standards Act;
The National Labor Relations Act; and any other applicable law. The indemnifying
party, at its own expense, agrees to defend the indemnified party, at its
request, against any such liability, cause of action, penalty, claim, demand,
administrative proceeding or lawsuit, including any in which the indemnified
party is named as an "employer" or "joint employer" with the indemnifying party.
Each party agrees to notify the other party promptly of any written claims or
demands against it for which the other party is responsible under this MOU.
8.2 The foregoing indemnity shall be in addition to any other
indemnity obligations for either party set forth in this MOU.
9. GENERAL PROVISIONS.
9.1 In the performance of obligations under this MOU, each party
shall comply with all applicable laws.
9.2 Unless otherwise expressly agreed between the parties in a
definitive agreement, the relationship of the parties is that of independent
contractors, and neither party may act as an agent for or make a commitment on
behalf of the other. No matter contained in this MOU, or the acts of the parties
will be construed to create a partnership or joint venture between the parties.
9.3 The rights and remedies of the parties provided in this MOU
shall not be exclusive and are in addition to any other rights and remedies at
law or in equity.
9.4 This MOU shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties.
9.5 If any provision of this MOU is held to be illegal or
unenforceable by any court of competent jurisdiction, the provision shall be
deemed separable from the remaining provisions of this MOU and shall not affect
or impair the validity or enforceability of the remaining provisions of this
MOU.
9.6 CII acknowledges that as a provider of communications services
subject to various legal or regulatory requirements, AMIGAS may be required to
offer or provide its services on a non-discriminatory basis to any customer or
to or through other vendors or to participate with other parties as prime
contractors or otherwise.
9.7 The failure of either party to enforce, in any one or more
instances, any of the terms or conditions of this MOU shall not be construed as
a waiver of the future performance of any such term or condition. No amendment,
interpretation or waiver of any of the provisions of this MOU shall be effective
unless made in writing and signed by the parties.
9.8 All headings used in this MOU and its attachments are intended
for convenience of reference only and shall not affect the construction or
interpretation of the MOU.
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9.9 This MOU shall be considered confidential Information of both
parties. Neither party shall disclose the contents or existence of this MOU
without the prior consent of the other party.
9.10 Neither party shall be liable for its failure to perform any
of its obligations under this MOU during any period in which performance is
directly delayed by the occurrence of any events beyond the control of the
failing party such as fire, explosion, flood, storm or the acts of God, war,
embargo, riot, labor action, or the intervention of any governmental authority,
provided that the party suffering the delay promptly notifies the other party of
such delay. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR
ANY LOST PROFITS (ACTUAL OR ANTICIPATED), LOST USE, LOST SAVINGS, LOST DATA OR
COSTS OF RECREATING LOST DATA, OR ANY INCIDENTAL, COLLATERAL, SPECIAL, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES OF THE OTHER PARTY OR ANY CUSTOMER OF THE
OTHER PARTY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE
DAMAGES.
9.11 Each party shall execute and deliver any other documents and
do any other acts and things as may be reasonably necessary to carry out the
terms, provisions and purposes of this MOU.
9.12 The parties agreement to provide services to each other under
this MOU is not intended and shall not be construed to enable, encourage or
require either party to induce any customer or other party to breach any
existing contractual obligations or otherwise tortiously interfere with the
business or contractual relationships between any party.
9.13 This MOU may be executed in any number of counterparts all of
which shall constitute one agreement, and each counterpart shall be deemed to
have been made, executed and delivered on the date set out at the head of this
MOU, without regard to the dates or times when the counterparts may actually
have been made, executed or delivered.
9.14 Each party represents and warrants to the other that (i) it
has the corporate power and authority to execute, deliver and perform this MOU,
(ii) the execution, delivery and performance does not conflict with or
constitute a default under any contract or agreement by which the party is
bound, and (iii) this MOU creates a legal, valid and binding obligation of the
party, enforceable against the party in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability affecting the rights of creditors and to
general principles of equity.
9.15 Except as otherwise provided herein, any notices or demands
which are required by law or under the terms of this MOU shall be given or made
by the parties in writing and shall be given by hand delivery, telegram or
similar communications, or by certified or registered mail, and addressed to the
parties set forth below. The notices shall be deemed to have been given in the
case of telegrams or similar communications when sent, and in the case of
certified or registered mail when deposited in the United States mail with
postage prepaid.
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To: Xxxx X. Xxxxx, President and CIO
Amigas Venture Group, Inc.
0000 XX 00 Xx
Xxxxx Xxxxxxx 00000
To: Xxxx X. Xxxxxxxx, President & CEO
Centrack International, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
The above addresses may be changed at any time by giving written notice as above
provided.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Understanding as of the day and year first written above.
Amigas Venture Group, Inc. Centrack International, Inc.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------- --------------------------
Name: Xxxx X. Xxxxx Name: Xxxx X. Xxxxxxxx
Title: President and CIO Title: President & CEO
Date: 6\18\99 Date: 6\18\99
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Attachment B
CII'S SERVICE MARKS AND TRADEMARKS TO BE LICENSED TO AMIGAS
TERMS OF CII'S LICENSE TO AMIGAS
AMIGAS SERVICE MARKS AND TRADEMARKS TO BE LICENSED TO CII
TERMS OF AMIGAS LICENSE TO CII
