TEAMING AGREEMENT
THIS TEAMING AGREEMENT (this "Agreement"), effective as of May __, 2000 (the
"Effective Date"), is entered into by and between Ericsson Messaging Systems
Inc., a Delaware corporation ("Ericsson"), and Telemetrix, Inc., a
________________ corporation ("Telemetrix").
WHEREAS, Ericsson and Telemetrix each have unique capabilities which are
complementary and desire to enter into this Agreement in order to develop an
integrated solution to be offered to their respective potential or current
customers (each, a "Customer").
NOW, THEREFORE, Ericsson and Telemetrix hereby agree as follows:
1. Scope of Joint Effort.
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(a) From time to time during the term of this Agreement, each party may
refer a Customer to the other party and may agree to submit a joint
proposal (a "Proposal") to offer an integrated solution to such
Customer that is comprised of the parties' respective products and
services. In such Proposal, either party may be a prime contractor (the
"Prime Contractor") while the other party may be a subcontractor (the
"Subcontractor"). In connection therewith, the Subcontractor will use
its commercially reasonable best efforts to assist the Prime Contractor
in its preparation and submission of the Proposal, including, without
limitation, management, technical and cost proposal materials and
proposal clarifications, and other required supporting materials. The
Prime Contractor will identify the Subcontractor as a proposed
subcontractor and contributor to the proposal effort in the Proposal
and in communications with such Customer.
(b) Immediately following the Customer's award of the contract to the Prime
Contractor for the products and services as a result of the Proposal
(the "Prime Contract"), Ericsson and Telemetrix will commence good
faith negotiations of a statement of work (each, a "Statement of Work")
which will, in addition to those listed in Section 3 hereof, include
such required terms and conditions as are contained in the Prime
Contract, pricing which reflects the pricing data provided by the
Subcontractor to the Prime Contractor in connection with the Proposal,
and such other terms and conditions as may be mutually agreed upon. In
the event that the terms and conditions of the Statement of Work cannot
be negotiated by the parties within a reasonable time frame, and in any
event not more than one month from award of the Prime Contract to the
Prime Contractor or mutually agreed upon extensions, the Prime
Contractor will have the right to enter into subcontracts with other
business entities for the equivalent or substantially equivalent
products and services which would have been covered by the Statement of
Work.
(c) With respect to a Proposal, unless the Customer determines, as
evidenced in writing, that the products and services proposed by the
Subcontractor in the Proposal do not meet the Customer's requirements,
both Ericsson and Telemetrix will work together in good faith and will
not seek to team or collaborate with any third party to submit a
counter proposal to the Customer with respect to such products and
services.
2. Independent Efforts. From time to time during the term of this Agreement
and independent of the parties' joint efforts relating to a Proposal, each
party may purchase products and services from the other party in accordance
with the terms and conditions of this Agreement, in which event the parties
will execute a Statement of Work for such purchase.
3. Statement of Work. All products and services provided by one party (the
"Seller") to the other party (the "Buyer") pursuant to this Agreement will
be so provided in accordance with the Statements of Work entered into by
the parties from time to time during the term of this Agreement, each of
which will, at a minimum, including the following:
(a) A reference to this Agreement, which reference will be deemed to
incorporate all applicable provisions of this Agreement.
(b) The date as of which the applicable Statement of Work will be
effective, and, if applicable, the term or period of time during which
the Seller will provide the applicable products and services to the
Buyer pursuant to that Statement of Work.
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(c) A description of the products and services to be provided by the Seller
to the Buyer pursuant to that Statement of Work, including, but not
limited to, the deliverables to be provided as part of the applicable
products and services pursuant to that Statement of Work.
(d) A designation of the individual who will have management responsibility
for each party in connection with that Statement of Work.
(e) The amounts payable to the Seller by the Buyer for the products and
services to be provided under the applicable Statement of Work, the
basis on which such amounts will be determined, and the schedule on
which such amounts will be invoiced to the Buyer by the Seller.
(f) Any additional provisions applicable to the products and services
provided under that Statement of Work that are not otherwise set forth
in this Agreement or that are exceptions to the provisions set forth in
this Agreement.
4. Confidentiality. Each party agrees that all confidential documents, work
product and information received or otherwise obtained from the other party
pursuant to this Agreement, whether before or after the Effective Date,
will be received in strict confidence and will be used only for the
purposes of carrying out the obligations or, or as otherwise contemplated
by, this Agreement. Without the other party's prior written consent,
neither party will disclose any such information to any third party, and
each party will disclose such information only to such of its officers,
employees and agents that have a need to know such information for the
purposes contemplated by this Agreement. However, this Section will not
prevent a party from disclosing any such information that (i) is or becomes
generally available to the public other than as a result of a disclosure by
such party or by other persons to whom such party disclosed such
information, (ii) is already in the possession of such party without being
subject to another confidentiality obligation, (iii) is or becomes
available to such party on a non-confidential basis from a third party,
provided that such third party is not bound by a confidentiality obligation
to the other party, (iv) is independently developed by such party without
the use of the other party's confidential information, or (v) is required
to be disclosed pursuant to a requirement of any governmental authority or
any statute, rule or regulation, provided that such party gives the other
party notice of such requirement prior to any such disclosure.
5. Term. The term of this Agreement will be for a period of three years
commencing on the Effective Date, unless earlier terminated pursuant to the
terms and conditions of this Agreement. This Agreement will automatically
extend for successive one (1) year periods unless either party provides to
the other party a written notice of termination no less than sixty (60)
days prior to the expiration of the then existing term.
6. Termination.
(a) Termination for Cause. Either party may terminate this Agreement or the
applicable Statement of Work upon thirty days' written notice to the
other party if such party breaches in any material respect any of the
terms of this Agreement or the applicable Statement of Work and such
breach remains uncured at the end of the thirty day notice period.
(b) Termination for Change of Control. Each party shall have the right to
terminate this Agreement by written notice to the other party if the
other party shall have undergone a Change of Control. For purposes of
this Agreement, a "Change of Control" means an event that will be
deemed to have occurred if there shall be consummated (i) any
consolidation, merger or other reorganization of a party in which such
party is not the continuing or surviving entity, (ii) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of such party;
(iii) any vote or other consent of the stockholders of such party to
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approve any plan or proposal for the liquidation or dissolution of such
party, or (iv) at any time during a period of twelve consecutive
months, individuals who at the beginning of such twelve-month period
constituted the board of directors of such party shall cease for any
reason to constitute at least a majority thereof. The party having a
Change of Control shall, within ten days following a Change of Control,
provide written notice to the other party of the same, whereupon the
other party may elect to terminate this Agreement during the subsequent
ninety days, with no liability arising solely as a result of such
termination.
(c) Termination of a Proposal. Each party's obligations with respect to
each Proposal will terminate upon the first to occur of one of the
following events:
(1) the execution of the Statement of Work by Ericsson and Telemetrix
as contemplated by such Proposal.
(2) the award of a contract for the products and services described in
Proposal to other than the Prime Contractor.
(3) the failure of the Customer to award a contract contemplated by
the Proposal within six months from the submission of the Proposal
by the Prime Contractor.
(4) written determination by the Customer that the products and
services proposed in the Proposal do not meet the Customer's
requirements.
7. Expenses. Except as otherwise mutually agreed in writing by the parties,
each party will bear all of its own expenses incurred in connection with
the performance of its duties and obligations under this Agreement.
8. Ownership of Intellectual Property. Except as expressly provided in a
Statement of Work, each party shall retain the exclusive right and
ownership interest in and to any and all software, products, systems,
methods, designs and other intellectual property developed, obtained, made
or conceived by such party prior to the Effective Date or separate and
apart from this Agreement, and the other party will obtain no rights or
interests therein, whether patented or not. In the event that the parties
joint develop any work product pursuant to this Agreement, the parties will
negotiate in good faith and mutually agree in advance upon their respective
rights and interests in and to such work product in a Statement of Work.
9. Infringement Indemnification. Each party shall defend, indemnify and hold
harmless the other party and its employees, agents, affiliates and
customers from and against any and all claims, actions, damages, or other
liabilities (including reasonable attorneys' fees, court costs and other
costs of defense) to the extent caused by or arising out of any allegation
that any of the products, services and other materials provided by the
indemnifying party pursuant to this Agreement (collectively, the
"Materials") infringes or violates any copyright, trademark, patent, trade
secret or other proprietary rights of any third party; provided that the
indemnified party promptly notifies the indemnifying party in writing of
any such allegation of which the indemnified party is aware and to provide
the indemnifying party , at its expense, with the necessary cooperation and
assistance in connection therewith. In the event that any of the Materials
is held to infringe or violate any copyright, trademark, patent, trade
secret or other proprietary rights of any third party, the indemnifying
party shall, at its option, (i) procure the right for the indemnified party
to continue using the Materials, or (ii) modify the Materials or part
thereof to make them non-infringing (so long as such modification does not
have a material negative effect on use or functionality). The provisions of
this Section shall survive the expiration or termination of this Agreement
for any reason.
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10. Limitation of Liability. In no event shall either party be liable for any
special, incidental, indirect or consequential damages in connection with
this Agreement, whether based on action or claim in contract, equity,
indemnity, tort (including negligence), intended conduct, strict liability
or otherwise, even if such damages are foreseeable.
11. Notice. Any notices pursuant to this Agreement shall be in writing and
shall be sent to the parties at the following address or at such other
addresses as shall be specified by the parties by like notice:
If to Ericsson: If to Telemetrix:
Ericsson Messaging Systems Inc. Telemetrix, Inc.
145 Crossways Drive West 1225 Sage Street
Woodbury, NY 11797 Gering, NE 69341
Attention: President Attention: President
With a copy to:
Ericsson Messaging Systems Inc.
740 East Campbell Road
Richardson, Texas 75081
Attention: Legal Department
Such notices or other communications shall be deemed to have been duly
given and received (i) on the day of sending if sent by personal delivery,
cable, telegram, facsimile transmission or telex, (ii) on the next business
day after the day of sending if sent by Federal Express or other similar
express delivery service, or (iii) on the fifth calendar day after the day
of sending if sent by registered or certified mail (return receipt
requested).
12. Dispute Resolution. Any disputes arising under or relating to this
Agreement shall be resolved in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Arbitration shall be held in
the City of New York, New York, or such other place as the parties may
agree and shall include an award of attorneys' fees (and the amount of such
fees) to the prevailing party. The arbitrators' award shall be final and
binding, and judgment thereon may be entered in any court having
jurisdiction over the party against which enforcement is sought; provided
that any such award rendered by the arbitrators shall be strictly in
conformance to and in accordance with the terms and conditions of this
Agreement, including without limitation the limitation of liability
provisions contained herein. Other than those matters involving injunctive
relief as a remedy or any action necessary to enforce the award of the
arbitrator, the parties agree that the provisions of this Section are a
complete defense to any suit, action or other proceedings instituted in any
court or before any administrative tribunal with respect to any dispute or
controversy arising under or relating to this Agreement. Nothing in this
Section shall prevent either party from exercising its rights to terminate
this Agreement as specified herein. The provisions of this Section shall
survive the expiration or termination of this Agreement for any reason.
13. Media Releases. All media releases, public announcements and public
disclosures by either party relating to this Agreement or any Statement of
Work or the subject matter of this Agreement or any Statement of Work,
including, without limitation, promotional or marketing material but not
including any announcement intended solely for internal distribution or any
disclosure required by legal, accounting or regulatory requirements beyond
the reasonable control of the party, will be coordinated with and subject
to the prior written approval by both parties prior to release.
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14. Force Majeure. Each party will be excused from performance hereunder
(except for payment obligation) for any period and to the extent that it is
prevented from such performance, in whole or in part, as a result of delays
caused by the other party or an act of God, natural disaster, war, civil
disturbance, court order, labor dispute, third party non-performance, or
other cause beyond its reasonable control and which it could not have
prevented by reasonable precautions, including failures or fluctuations in
electrical power, heat, light, air conditioning or telecommunications
equipment, and such non-performance will not be a default hereunder or a
ground for termination hereof.
15. Relationship. The relationship between Telemetrix and Ericsson hereunder is
that of independent contractor. This Agreement does not create any
employer-employee, agency, joint venture, or partnership relationship
between Telemetrix and Ericsson. Each party shall exercise control over the
means and manner of its performance of services pursuant to this Agreement.
No employee, agent, or assistant of one party, or other person
participating on such party's behalf, shall be considered an employee of
the other party or entitled to any employment fringe benefits of such other
party.
16. Miscellaneous. This Agreement shall be governed by the laws of the State of
New York, other than the choice of law rules. Neither party may assign this
Agreement without the other party's prior written consent. The provisions
of this Agreement shall be severable, and if any provisions shall be held
unenforceable the remaining provisions shall remain in full force and
effect. Expiration or termination of this Agreement for any reason shall
not release either party from any liability or obligation set forth in this
Agreement which (i) the parties have expressly agreed will survive any such
expiration or termination, or (ii) remain to be performed or by their
nature would be intended to be applicable following such expiration or
termination. This Agreement, each Statement of Work, and all exhibits
attached hereto or thereto, each of which is hereby incorporated herein or
therein, as applicable, for all purposes, constitute, as of the Effective
Date or the effective date of the applicable Statement of Work, as
applicable, the entire agreement between Ericsson and Telemetrix with
respect to the subject matter hereof and thereof, and there are no
understandings or agreements relative hereto or thereto that are not fully
expressed herein or therein. Any other terms or conditions included in any
quotes, acknowledgements, bills of lading, purchase orders, invoices or
other forms utilized or exchanged by the parties hereto that are in
addition to or in conflict with those set forth in this Agreement or the
applicable Statement of Work will be of no force or effect and will not be
incorporated herein or be binding unless specifically and expressly agreed
to in writing by both parties. No change, waiver or discharge will be valid
unless in writing signed by an authorized representative of the party
against whom such change, waiver or discharge is sought to be enforced.
Each party, by executing this Agreement, represents and warrants that all
necessary corporate or other authority to execute the Agreement has been
obtained and that the person signing the Agreement is authorized to do so
and thereby bind that party.
IN WITNESS WHEREOF, the parties to this Agreement have caused their authorized
representatives to execute this Agreement as of the Effective Date.
ERICSSON MESSAGING SYSTEMS INC. TELEMETRIX, INC.
By:/s/ Thomas Esposito By: /s/ Michael J. Tracy
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Name: Thomas Esposito Name: Michael J. Tracy
Title:Vice-President Title: President
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