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THIS AGREEMENT is made and entered into [Date], by and between [Name of Prime Contractor], a corporation incorporated under the laws of the [Jurisdiction of Incorporation of Prime Contractor (ie. the State of California)], with its principal place of business at [Address of Prime Contractor] (the "Prime Contractor") and [Name of Team Member], a corporation incorporated under the laws of the [Jurisdiction of Incorporation of Team Member (ie. the State of California)], with its principal place of business at [Address of Team Member] (the "Team Member"). WHEREAS: (A) The Prime Contractor intends to submit a proposal or proposals (the "Proposal") to [Name of Customer (ie. Party awarding contract for project)] (the "Customer"), in response to a competitive Request for Proposal No. [Number of Request for Proposal] (the "RFP") for [Nature of Project (ie. computer hardware and/or software and related services)] (the "Project"); (B) The parties have complementary capabilities not available within their respective corporations, and it is to their mutual benefit to act as a team and to co-operate for the purpose of preparing and submitting the Proposal for the Project, and (C) The Prime Contractor and the Team Member desire to define their mutual rights and obligations during the period of preparation and submission of the Proposal and subsequently up to the time of any resulting contract awarded to the Prime Contractor consistent with laws applicable. NOW THEREFORE, to effectuate the foregoing, the Prime Contractor and the Team Member, in consideration of the mutual covenants hereinafter contained, agree as follows: 1. Objective This Agreement is for the purpose of establishing the relationship of the parties during the period of preparation and submission of the Proposal and subsequently up to the time of any resulting contract awarded to the Prime Contractor (the "Contract"), and to establish the responsibilities of each party for their respective portion of the Proposal and subsequent contract. 2. Parties' Relationship (a) The Prime Contractor, as a prospective prime contractor, will submit the Proposal in response to the RFP and will include the Team Member, as subcontractor, for that portion of the work assigned to the Team Member and identified in Schedule "A" (the “Team Member’s Work”). Each party will exert its "best efforts", as jointly deemed reasonable, to produce the Proposal which will cause the selection of the Prime Contractor as a prime contractor for the Project and the acceptance of the Team Member as the
-2subcontractor for the work assigned to the Team Member herein, and each party will continue to exert its "best efforts" toward this objective throughout any and all negotiations concerning a Contract or subcontract(s) which may follow the submission of the Proposal. (c) It is understood that the Prime Contractor will, in the Proposal which the parties submit and in all discussions with respect thereto, identify the Team Member as its team member, and will state in such Proposal or discussions the relationship of the parties and the spheres of endeavour and responsibility of each party. Neither party shall demand compensation of any kind from the other during the period up to the award of the Contract, or after the award of the Contract, unless otherwise agreed in writing. Each party will bear all costs, risks and liabilities incurred by it arising out of its obligations and efforts under this Agreement. Such liability includes, but is not limited to, all damages, costs and expenses claimed from or incurred as the result of any claim or proceeding made against a party with respect to the infringement of any patent, copyright, trademark, trade secret or other proprietary right of any third party. Each party shall furnish to the other such co-operation and assistance as may be reasonably required hereunder; provided, however, that the parties, as between themselves, shall be deemed to be independent contractors, and the employees of one shall not be deemed to be the employees of the other. This Agreement is not intended by the parties to constitute or create a joint venture, partnership, or formal business organization of any kind, other than a contractor team arrangement and the rights and obligations of the parties shall be only those expressly stated in this document. None of the parties shall have the authority to bind the other except to the extent authorized herein. The Prime Contractor and the Team Member shall remain as independent contractors at all times and neither party shall act as the agent for the other. Nothing in this Agreement shall be construed as providing for the share of profits or losses arising out of the efforts of either or both of the parties. The parties hereunder designate one or more individuals within their own organization as their representative(s) responsible to direct performance of the parties' necessary functions (including receipt and protection of proprietary information). Such representative(s) shall have primary responsibility to effectuate the requirements and responsibilities of the parties under this Agreement. For Prime Contractor: For Team Member: [Name, title and address of Prime Contractor's Representative] [Name, title and address of Team Member's Representative]
-3(i) Each party will participate exclusively with the other as to the Team Member’s Work. Consequently except as provided for in paragraph j, the parties agree that they will not actively solicit participation or participate in other team efforts that are competitive to this Agreement nor compete independently for Project work for the duration of this Agreement. The term "active participation", as used herein, includes (but is not limited to) the interchange of technical or marketing data with competitors. Nothing in this Agreement shall limit or restrict the rights of the parties from quoting or selling to others not party to this Agreement their (a) standard commercial products and services upon demand and (b) other previously-offered products and services that are not unique to the Proposal contemplated by this Agreement and (c) providing technical information concerning products falling within categories (a) and (b) preceding. Nothing herein shall preclude the parties from marketing or selling their standard commercial products and services to any third parties for purposes unrelated to the Proposal or to the Project during the term of this Agreement.
Proposal/Post-Proposal Activities (a) The parties will furnish to the Prime Contractor, for incorporation into the Proposal, all Proposal material pertinent to the work assigned to the respective parties as defined in Schedule "A", including but not limited to, manuscripts, art work, and cost and/or pricing data, in accordance with the requirements of the RFP. The parties will also furnish qualified personnel who will co-operate in drafting the Proposal. The Team Member will provide a firm price and performance commitment to the Prime Contractor for the Team Member's portion of the work. The Prime Contractor will have the final decision on the form and content of all material submitted to the Customer including, but not limited to, both technical and pricing aspects of the Proposal. Prior to submission of the Proposal to the Customer the Prime Contractor will afford the Team Member the opportunity to view the form and the content of the Team Member's portion of the Proposal, to ensure that the Team Member's participation is accurately and adequately portrayed. Any inaccuracies or inadequacies will be corrected by the Team Member and submitted to the Prime Contractor immediately. The Prime Contractor will subsequently provide to the Team Member, as a minimum, that portion of the technical contents of the Proposal submitted to the Customer which includes the effort to be performed by the Team Member as set out in the Team Member’s Work, and will advise the Team Member of the price proposed to the Customer for the entire Project. Should a dispute arise between the Prime Contractor's and the Team Member's personnel working on the Proposal involving their respective limitations, or the working relations between their organizations, then the same personnel (including the designates under paragraph h) will make every effort to resolve the dispute. When such resolution cannot be achieved, the dispute will be referred to the
-4appropriate senior management of the Prime Contractor and of the Team Member, respectively. These individuals will take whatever action may be necessary to reach an agreement which is acceptable to both parties. (d) The Team Member will assure availability of management and technical personnel to assist the Prime Contractor in any discussions and negotiations with the Customer directed toward obtaining the award of a contract. In the event the Prime Contractor should be requested or is presented the opportunity to make presentations whether orally or by written communications to the Customer concerning the Team Member's portion of the Project, the content of the presentations thereof shall be made known to the Team Member. When requested to do so by the Prime Contractor, the Team Member will support such presentations as they relate to the Team Member's area of work. Although the Prime Contractor is contemplated as the prime interface with the Customer, it is recognized that the Team Member may have continuing relations with the Customer and may be the recipient of inquiries concerning the subjectmatter of this Agreement. Therefore, any cogent communications invited by the Customer directly with the Team Member concerning any matter involving this Agreement, the Project or the Proposal shall not be deemed to be a breach of this Agreement, provided the Prime Contractor is notified of such contact by the Team Member prior to the contact where possible or, where not possible, subsequently in a timely manner.
Contract-Subcontract Award (a) In the event that the Proposal submitted to the Customer under the terms of this Agreement results in a Contract being awarded to the Prime Contractor, the Prime Contractor shall award a subcontract to the Team Member under mutually agreeable terms and conditions for the Team Member’s Work (the "Subcontract"). In the event negotiations between the Prime Contractor and the Customer result in an increase or decrease in the Team Member’s Work, the required additions or deletions shall be deemed to be made to Schedule "A". The Team Member agrees that the Prime Contractor shall negotiate the Contract provided, however, that prior to agreeing to any provisions in the Contract that change the responses in the Proposal or agreeing to additional terms that affect the Team Member's obligations, the Prime Contractor shall consult with and obtain the Team Member's approval. In the event the Prime Contractor should be directed by the Customer to (i) place all or a portion of the Team Member's Work with another source, or (ii) award all or a portion of the Team Member's Work on a competitive basis, promptly upon discovery both the Prime Contractor and the Team Member will take all reasonable steps to preclude, or reverse, the Customer's position and seek to have the parties' teaming arrangement remain intact. If, after all reasonable efforts, the Customer is still unwilling to accept the teaming arrangement and has so officially
-5notified the Prime Contractor, then it is agreed that the Prime Contractor shall have no further obligations to the Team Member, as to the affected work, except for the continued protection of proprietary information, as detailed below. Team Member may contact Customer independent from Prime Contractor to verify accuracy of Prime Contractor's information. 5. Rights in Inventions Inventions shall remain the property of the originating party. In the event of joint inventions, the parties shall establish their respective rights by negotiations between them. 6. Proprietary Information (a) During the term of this Agreement, the parties hereto may exchange proprietary and/or confidential information, including but not limited to, performance, sales, financial, contractual, and technical data. Such information must be in writing and clearly marked on each page as proprietary or confidential. All such information will be deemed to be treated by the parties as proprietary and confidential. The Prime Contractor and the Team Member mutually agree that they shall not at any time divulge any matters relating to the Proposal or the Project which may become known to them by reason of its (their) involvement in the Proposal and shall be true and faithful to each other in all dealings and transactions relating to this Proposal. The parties herein agree that they will not, together or alone, use for their or its own benefit or purposes or for the benefit or purpose of any other person, firm, corporation, association or other business entity, any trade secrets, any information of a proprietary or confidential nature or plans belonging to or relating to the affairs of the Prime Contractor or the Team Member either during or after the Proposal has been submitted. The receiving party, during the term of this Agreement and for five (5) years thereafter, shall hold such information in confidence, shall use such information only for the purposes of this Agreement and shall not disclose such information to any third party without prior written approval of the other party, except that information necessary to perfect the Prime Contractor's Proposal under this Agreement may be disclosed to the Customer. Neither party shall be liable for the inadvertent or accidental disclosure of proprietary or confidential information if such disclosure occurs despite the exercise of the same degree of care as such party normally takes to preserve its own such proprietary or confidential information. These restrictions on the use or disclosure of information marked as proprietary or confidential shall not apply to information that: (i) was known to the receiving party at the time of disclosure;
-6(ii) (iii) (iv) (v) (f) subsequently is developed by the recipient, independent of the information transmitted by the disclosing party; becomes known to the receiving party from a source other than the disclosing party without breach of this Agreement; has been published or is otherwise in the public domain without breach of this Agreement, or is disclosed with the prior written approval of the other party.
Any information, other than proprietary or confidential information identified as provided above, shall not be restricted by either party as to the other party's use thereof. No license to the other party, under any trademark, patent or copyright, or applications which are now or may thereafter be owned by such party, is either granted or implied by the conveying of information to that party. None of the information which may be submitted or exchanged by the parties shall constitute any representation, warranty, assurance, guarantee or inducement by either party to any of the other with respect to the infringement of trademarks, patents, copyrights, or any right of privacy, or other rights of third persons. Upon the expiration of the agreement and subject to ongoing Contract requirements, each party shall return to the other party the proprietary and confidential information including all copies thereof or certify that all information and all copies have been destroyed.
Termination of Agreement (a) This Agreement, which is effective upon the date stipulated on the first page, shall automatically expire and be deemed terminated effective upon the date of the happening or occurrence of any one of the following events or conditions, whichever shall first occur: (i) (ii) (iii) (iv) Notice of the cancellation of the RFP by the Customer. The receipt by the Prime Contractor of written notice from the Customer that it will not award the Prime Contractor the Contract for this Project. The receipt of written notice from the Customer that it has awarded the Contract for this Project to someone other than the Prime Contractor. The receipt of official Customer notice that the Team Member will not be approved as a subcontractor under a contract to the Prime Contractor for Team Member’s Work, subject to the conditions contained in paragraph c herein.
-7(v) (vi) (vii) Award of a Subcontract by the Prime Contractor to the Team Member for its designated portion of the Project. Mutual agreement of the Prime Contractor and the Team Member to terminate the agreement. The expiration of a two-year period commencing on the date of this Agreement except that if the Customer has awarded a Contract to the Prime Contractor prior to such date, this Agreement shall be extended for a reasonable time to permit negotiations of a subcontract as intended by this Agreement.
(viii) The insolvency, bankruptcy, reorganization under bankruptcy law, or assignment for the benefit of creditors by any party. (ix) The Customer subsequently modifies the requirements of the RFP so materially that either party deems it in its best business interest to withdraw from further participation in any undertaking to provide the Project. As per paragraph b herein, the Prime Contractor so materially modifies the Team Member's proposal that the Team Member deems it in its best business interest to withdraw from any further participation in the undertaking to provide the Project. The provisions for termination as contained in paragraph 4, ContractSubcontract Award.
Security: Customer Classified Information Should access to Customer's classified information be required in the preparation of their respective portions of the Proposal, or during negotiation of the contract or for the performance of the Team Member’s Work, both the Prime Contractor and the Team Member shall meet the security clearance requirements of the Customer as set forth in government laws and regulations. The Prime Contractor and the Team Member agree that all of their personnel who, pursuant to this Agreement, will have access to such classified information, shall have an appropriate personal security clearance, which is still in effect, prior to being accorded access to such information.
Publicity The parties shall not issue a news release, public announcement, advertisement, or any other form of publicity concerning their efforts in connection with this Agreement without obtaining prior written approval from the other party. In the event such approval is granted, any resulting form of publicity shall give full consideration to the role and contributions of the other party.
-810. Dealings with Customer The contents of this Agreement may be made known to appropriate Customer representatives by any of the parties, if requested by the Customer. Nothing contained herein is intended to affect the rights of the Customer to negotiate directly with any one of the parties hereto on any basis the Customer may desire. The Team Member agrees herein that, notwithstanding the provisions contained in paragraph f, it will notify the Prime Contractor immediately if the Customer has indicated a desire to negotiate any part of the Proposal directly. 11. Notices All notices, requests, demands or other communications required by this Agreement or desired to be given or made by either of the parties to the other hereto shall be given or made by personal delivery or by mailing the same in a sealed envelope, postage prepaid, registered mail, return receipt requested, and addressed to the parties at their respective addresses set forth above or to such other address as may, from time to time, be designated by notice given in the manner provided in this paragraph. Any notice or communication mailed as aforesaid shall be deemed to have been given and received on the third business day next following the date of its mailing. Any notice or writing delivered to a party hereto shall be deemed to have it been given and received on the day it is delivered, provided that if such day is not a business day, then the notice or communication shall be deemed to have been given and received on the business day next following such date. 12. Assignment 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 consent shall not be unreasonably withheld. The foregoing shall not apply in the event any party shall change its corporation name or merge with another corporation.
[NAME OF PRIME CONTRACTOR] Per: Name: Title: [NAME OF TEAM MEMBER] Per: Name: Title:
Schedule “A” Description of Work Assigned to Parties
Team Member’s Work: [Describe Team Member's Work]
Prime Contractor’s Work: [Describe Prime Contractor's Work]
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