Exhibit 10.18
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement (the "MOA") is established between Autometric,
Incorporated, a wholly-owned subsidiary of The Boeing Company ("Boeing
Autometric"), with a place of business at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx, XX
00000, and AdZone Research, Inc. ("AdZone"), a corporation with a place of
business at 0000-00 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000 (sometimes referred
to individually at the "Party" or collectively as the "Parties").
1. BACKGROUND AND PURPOSE
1.1 BACKGROUND. AdZone and Boeing Autometric recognize that they have
complementary capabilities and technologies and believe that the joint marketing
of AdZone's NetGet(TM) internet surveillance product and technology combined
with Boeing Autometric's access to certain potential customers and markets not
currently served by AdZone and its experience in developing a wide range of
integrated solutions for customers can be of interest and provide effective
solutions to assist the global war against terrorism.
1.2 PURPOSE. The purpose of this MOA is to clarify the mutual understanding
between the Parties regarding the marketing of their joint capabilities and
expertise in pursuit of potential business opportunities with agencies of the
U.S. Government dealing with homeland security, national security, and
intelligence (the "Potential Customers").
2. RESPONSIBILITIES OF THE PARTIES
Pursuant to the terms of the MOA, Boeing Autometric and AdZone agree as
follows:
2.1 Boeing Autometric will use commercially reasonable efforts to evaluate
potential business opportunities and, in its sole discretion, to market the
Parties combined capabilities, products and technologies to Potential Customers.
2.2 In the event a Potential Customer expresses an interest in a solution
proposed by Boeing Autometric and requests additional information, AdZone agrees
to assist Boeing Autometric as reasonably requested to provide such additional
information.
2.3 In the event a Potential Customer, either informally or formally,
requests that Boeing Autometric submit a proposal that includes AdZone's
technology or capabilities as part of the proposed solution, AdZone agrees to
support the proposal effort and provide proposal material, including technical,
cost (with appropriate supporting data and certifications), management, and
schedule information relating to AdZone's participation in the proposed
solution, and further agrees to furnish Boeing Autometric such additional
information, assistance, and cooperation as Boeing Autometric reasonably
requires in discussions or negotiations with the Potential Customers on the
proposal.
2.4 If as a result of a proposal submitted pursuant to Section 2.3, above,
Boeing Autometric is awarded a prime contract, AdZone agrees to enter into good
faith negotiations with Boeing Autometric for a subcontract for the work
described in said proposal to the extent such work is required under the prime
contract.
2.5 The Parties will coordinate periodically, via telephone or otherwise,
as mutually agreed, to: (a) review the status of efforts pursuant to this
Agreement, (b) determine ways to improve the productivity of such efforts and
maximize its potential, and (c) coordinate marketing activities.
3. PROPRIETARY INFORMATION
The exchange and disclosure between the Parties of Proprietary Information
hereunder shall be subject to the terms and conditions of the Proprietary
Information Agreement, dated _____________, executed between the Parties, a copy
of which is attached hereto as Exhibit A and incorporated herein by reference.
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Notwithstanding the effective term established in the Exhibit A Proprietary
Information Agreement, the Parties agree for purposes of this MOA that the term
of the Exhibit A Proprietary Information Agreement will be contemporaneous with
the term of this MOA.
4. TERM AND TERMINATION
4.1 Upon execution by both Parties, this MOA shall commence, effective as
of the date of last signature set forth below (the "Effective Date") and shall
remain in effect for a period of one (1) year (the "Term").
4.2 Either Party may cancel this MOA by giving ninety (90) days' prior
written notice thereof to the other Party.
4.3 AdZone's agreement to enter into good faith negotiations with Boeing
Autometric for a subcontract as set forth in Section 2.4, above, shall survive
termination or expiration of this MOA until the expiration of the validity
period of any proposal submitted pursuant to Section 2.3.
5. LIMITATIONS OF LIABILITY
5.1 BOEING AUTOMETRIC AND ADZONE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES
AND REPRESENTATIONS OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO ITS PERFORMANCE UNDER THIS AGREEMENT.
5.2 IN NO EVENT WILL EITHER BOEING AUTOMETRIC OR ADZONE BE LIABLE TO THE
OTHER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL
OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUES, GOODWILL, OR ANY
OTHER ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, UNDER
ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY,
TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF BOEING
AUTOMETRIC OR ADZONE, RESPECTIVELY, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY
OF SUCH DAMAGES.
6. GENERAL
6.1 NOTICES. Any formal notice or communication required by this Agreement,
shall be in writing and effective on the date when (i) served by personal
delivery, (ii) received via United States mail, return receipt requested,
postage prepaid, (iii) prepaid overnight courier service, or (iv) sent by
facsimile transmission with confirmation in writing to individuals indicated
below. Any changes to the points of contact will be communicated promptly in
writing to the other Party.
FOR AUTOMETRIC FOR ADZONE
Name: Xxxx Xxxx Name:
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Title: Contract Manager Title:
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Address: 0000 Xxxxxx Xxxx. Address:
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Xxxxxxxxxxx, XX 00000
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Phone: 000-000-0000 Phone:
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Fax: 000-000-0000 Fax:
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6.2 INDEPENDENT CONTRACTORS. It is expressly agreed that Boeing Autometric
and AdZone are acting hereunder as independent contractors and under no
circumstances shall any of the employees of one Party be deemed the employees of
the other Party for any purpose. There is no relationship of agency,
partnership, joint venture or franchise between the parties. This Agreement
shall not be construed as authority for either Party to act for the other Party
in any agency or other capacity, or to make commitments of any kind for the
account of or on behalf of the other.
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6.3 NON-EXCLUSIVITY. This MOA shall not limit the right of either Party to
market products or services now or in the future, alone or with others, nor
shall this MOA be construed to dictate the level of efforts or results required
in connection with the collaboration of the Parties hereunder. This Agreement is
principally intended to relate to marketing efforts and pursuit of potential
business opportunities with Potential Customers.
6.4 ASSIGNMENT. Neither Party may assign this Agreement, in whole or in
part, without the prior written consent of the other Party. Notwithstanding the
foregoing, either Party (the "Assignor") may, without the consent of the other,
assign this Agreement in whole or in part to any entity (the "Assignee") that
acquires all or substantially all of the properties, assets and rights of the
Assignor; PROVIDED, HOWEVER, that the Assignee agrees in writing to be bound by
and subject to all of the obligations of the Assignor contained in this
Agreement.
6.5 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the Commonwealth of Virginia, excluding
choice of law rules. Any dispute arising under this Agreement, which cannot be
resolved by negotiation between the Parties, will be submitted to an appropriate
court of competent jurisdiction in Virginia and the Parties consent and submit
to the personal jurisdiction of such court. The prevailing Party in any
litigation or other proceedings arising out of this Agreement shall be entitled
to recover its reasonable attorney's fees, costs and other related expenses.
6.6 EXPORT. This Agreement is subject to all laws, regulations, orders or
other limitations concerning the export or re-export of products and information
about products. Each Party agrees to comply with all export laws and
restrictions and regulations of the Department of Commerce, Department of State
or other United States or foreign agency or authority, and not to export or
allow the re-export of any products, information or technology in violation of
any such restrictions, laws or regulations.
6.7 EXPENSES. Each Party will be responsible for and pay all of its
expenses and costs incurred in connection with performing this Agreement.
6.8 MISCELLANEOUS. The headings and captions of the various subdivisions of
this Agreement are for convenience of reference only and shall in no way modify,
or affect the meaning or construction of any of the terms or provisions hereof.
This Agreement may be executed in two counterparts, each of which shall be
deemed an original, but which together shall constitute one and the same
instrument. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall
not affect the validity or enforceability of any other part or provision of this
Agreement. No waiver by any party of any breach of any provisions hereof shall
constitute a waiver unless made in writing signed by the party. Neither party
shall be liable or deemed to be in default for any delay or failure in
performance under this Agreement or interruption of service resulting directly
or indirectly from acts of God, or any causes beyond the reasonable control of
such party. Each person executing this Agreement represents to the other Party
that they have full power and authority to execute this Agreement on behalf of
their respective organizations. Each Party further acknowledges that it has read
the Agreement, understands it, and agrees to be bound thereby.
6.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
previous proposals, both oral and written, negotiations, representations,
commitments, writings and all other communications between the parties. This
Agreement may not be modified except by a writing signed by a duly authorized
representative of each of the parties.
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ACCEPTED AND AGREED:
ADZONE RESEARCH, INC. AUTOMETRIC, INCORPORATED
By By
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Name Name
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Title Title
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Date Date
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