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Agreement between Lockheed Xxxxxx Corporation Information Systems &
Technologies ("Lockheed"), a Maryland Corporation, with offices at 000 Xxxxxxx
Xxxxxxxx Xxxxxx, Xxxx xx Xxxxxxx, XX 00000 and Information Resource Engineering
Incorporated ("IRE"), a Delaware Corporation with offices at 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, XX 00000, is made and effective on the date of the second
signature affixed hereto.
W I T N E S S E T H:
WHEREAS, IRE designs, manufactures and markets enterprise network
security products, including encrypting modem-related hardware, software and
documentation, and key management services through its SafeNet/ Security Center;
WHEREAS, Lockheed provides to its clients full service system
integration services, program management, business reengineering, needs
assessment, operational requirements, definition, design, development,
installation, test, training, operations, client-server systems, distributed
database and image management and open system planning and implementation;
WHEREAS, Lockheed and IRE intend to cooperate in order to provide
full service systems integration, hardware and software to serve the secure
network solutions market for the financial services, insurance or systems
integration markets.
WHEREAS, Lockheed and IRE desire to initially establish terms to
govern a joint marketing and selling program (the "Program") under which
Lockheed and IRE may jointly market certain existing IRE/SafeNet Products and
services to third parties ("Customers").
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises and commitments set forth below the parties agree as follows:
1.0 DEFINITIONS
As used herein, the following words or phrases have the following
meanings:
a. "Intellectual Property" means any and all inventions,
improvements, enhancements, methods, designs, know-how,
trade secrets, software, hardware, circuits, products,
documentation, mask works, layouts, ornamental designs,
trademarks, service marks, trade dress, company names,
brand names, logos, and fictitious names, together with
any and all worldwide vested and/or inchoate rights in and
to any or all of the foregoing under any issued, pending
and/or later filed applications for patent or copyright
registration, trademark and/or service xxxx registration,
utility models and/or any other form of protection of
various forms of intellectual and/or industrial property
recognized anywhere in the world including any and all
rights of domestic and/or foreign priority, the right to
xxx and recover damages for infringements including,
without limitation, any past infringements.
b. "IRE Property" means any and all Intellectual Property
owned by IRE as of the Effective Date or developed
thereafter solely by or on behalf of IRE, and expressly
excludes any Lockheed Property.
c. "IRE/SafeNet Products" shall consist of the SafeNet/Dial,
SafeNet/LAN, SafeNet/Security Center and SafeNet/Security
Services.
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d. "Proprietary Information" means proprietary rights in, and
to, all computer programs, source code, algorithms,
software routines, microcode and other similar data
pertaining to IRE/SafeNet Products.
e. "Term" means the period from the Effective Date through
the Termination Date.
f. "Termination Date" means any date upon which this
Agreement shall terminate in accordance with the terms
hereof, or two years from the Effective Date, whichever is
earlier.
2.0 SCHEDULES
This Agreement contemplates the possible future execution by the
parties of one or more Schedules. Each Schedule shall automatically be deemed to
include all the terms and provisions of this Agreement, provided, however, that:
(a) The parties hereto may otherwise agree in writing; and
(b) Whenever the provisions of a Schedule conflict with the
provisions of this Agreement, the conflicting provisions
of the Schedule shall control and take precedence over the
conflicting provisions of this Agreement, but only for
purposes of such Schedule and, except for such conflicting
provisions of the Schedule, the terms and conditions of
this Agreement shall not be deemed amended, modified,
canceled, waived or released.
(c) Each Schedule hereafter entered into by the parties
pursuant to this Agreement shall incorporate this
Agreement by reference.
3.0 PROGRAMS, PRODUCTS AND SERVICES
3.1 Schedule A will govern sales and marketing activity under the
Program. Schedule A identifies the IRE/SafeNet Products, technical consulting
and other services that are included initially in the Program as well as the
sales and marketing responsibilities of Lockheed. Lockheed and IRE may by joint
agreement modify the pricing discounts or the list of its products or services
included in the Program. For IRE products sold under the Program, IRE will
provide its products and services to all qualified Customers (as defined in
Schedule A) at the pricing discounts identified therein.
3.2 The parties agree to promote, market, and advertise the existence
and use of the Program to their respective sales forces.
3.3 Subject to the terms and conditions of this Agreement, Lockheed
agrees to purchase and, and IRE agrees to sell, the IRE/SafeNet Products,
technical consulting and other services specified on Schedule A to this
Agreement, and IRE hereby grants Lockheed the non-transferable, non-exclusive
right to use the IRE/SafeNet Products to be sold, leased, rented, licensed or
otherwise transferred by Lockheed to its Customers, including the right to
sublicense software programs included in the IRE/SafeNet Products.
3.4 Lockheed agrees to purchase from IRE during the term of this
Agreement the minimum number of units and/or dollar amount of IRE/SafeNet
Products and/or technical consulting and other services as specified
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on Schedule B hereto (the "Minimum Purchase Commitment"). Schedule B also sets
forth an Additional Purchase Target which Lockheed, in good faith, intends to
purchase from IRE. Lockheed's obligation to purchase IRE/SafeNet Products and/or
technical consulting and other services characterized as an Additional Purchase
Target will be dependent upon Lockheed's internal budgetary and program
approvals.
3.5 IRE shall make available to Lockheed those items of the following
services, as are reasonably necessary, to support Lockheed's sales activities:
(i) technical engineering and sales assistance; (ii) assistance in outlining
attainable markets and providing marketing direction; and (iii) IRE shall use
its best efforts to convey to Lockheed the release dates for all of its products
as set forth on its Schedule B as well as new and revised product versions.
4.0 Opportunities. For each opportunity, a baseline agreement will be developed
between the parties and used as a guideline for the work to be performed by each
party on behalf of the Customer. The parties shall mutually determine which
party will take the lead or prime role, depending upon the circumstances and the
skills necessary to satisfy the Customer's needs. Once the prime role is
established, the prime party's sales representative will be responsible for
interfacing with the prospective Customer on contract issues and for securing a
signed contract document. Where a proposal from the parties results in an award,
the prime contractor as designated in the proposal shall award a subcontract to
the other party for the work outlined in the proposal unless directed otherwise
by the prospective Customer. Reasonable efforts to retain the subcontractor
party will be made by the prime contractor party.
5.0 Customer Relationships Each party shall act independently of the other party
regarding Customer contacts, Customer accounts, and sales territories, Neither
party shall represent the other party in any sales effort, unless otherwise
agreed. All Customer lists and account information are considered the exclusive
property of each party and will not normally be shared or released to the other
party, however, in those instances where it is shared between the parties it
will be handled as confidential information pursuant to the Nondisclosure
Agreement set forth as Schedule C hereto. Post-sale Customers, unless otherwise
agreed on an individual case basis, will have a direct relationship with
Lockheed and IRE, for their respective services and goods. Unless otherwise
agreed by the parties IRE will provide order entry capability for the IRE
products and services offered in the Program.
6.0 IRE Products and Service Standards IRE will make its products available to
Customers under the Program in accordance with Schedule A unless otherwise
agreed with the Customer or Lockheed. IRE shall be exclusively responsible for
establishing all terms and conditions, consistent with this Agreement,
applicable to the sale of its products or services to Customers, including but
not limited to all applicable warranty, maintenance, support, service and return
policy requirements associated therewith. IRE agrees and warrants that all
products and services under this Program will comply with any and all applicable
laws and regulations of all applicable jurisdictions.
7.0 Program Management The parties will each appoint a Program Manager. The
Program Managers will meet regularly during initial implementation of the
Program. After initial implementation, the Program Managers will meet quarterly
to update forecasts, improve Program management, and review strategy and Program
performance.
8.0 Training The parties will provide sales training at no charge for their
respective management, support, sales, and engineering personnel. In order to
assist IRE marketing or sales personnel to target the best opportunities, a one
day planning session will be conducted by Lockheed for select market areas in
North
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America. IRE will provide Lockheed with a similar one day seminar to convey
appropriate product knowledge of the IRE/SafeNet Products and services.
Additional future training will be provided as business conditions warrant. Each
party will provide the requisite support to the other party in the pursuit of
market of interest opportunities when such support is required.
9.0 Compliance With Laws and Business Practices. It is expressly
understood and agreed that this Agreement, and any exports, sales, transfers,
or any other disposition of IRE/SafeNet Products, to the extent incorporated in
Lockheed Products, are subject to the laws and regulations of the United
States. Specifically, contracts and orders placed for the Product may require
advance U.S. Government Export approval or licensing, and, therefore all such
contracts and orders are subject to the receipt of any necessary approvals and
licenses. The parties hereto agree to solicit orders, and IRE agrees to process
and ship orders, in accordance with all applicable laws and regulations.
10.0 Ownership of Intellectual Property.
10.1 IRE Property. The parties acknowledge and agree that all IRE
Property is and shall remain at all times the exclusive property of IRE, its
successors and assigns. All rights and ownership of data, patents, patent
applications, techniques, trade secrets, know-how, and other Intellectual
Property developed in the course of or arising out of this Agreement shall be
owned exclusively by IRE.
10.2 Defense of Intellectual Property. IRE shall indemnify Lockheed and
its customers and shall be solely responsible for defending any and all claims
of third parties against IRE/SafeNet Products for infringement.
11.0 Warranties of the Parties to the Other.
11.1 Ownership of IRE Products. IRE warrants to Lockheed and its
customers that it owns or otherwise holds all rights necessary to make, use,
sell, offer for sale, advertise and distribute the IRE/SafeNet Products free and
clear from all claims, liens and encumbrances of third parties.
11.2 Warranty. IRE hereby warrants to Lockheed that under normal use
and service, IRE Products are free from defects in design and workmanship. Each
party warrants to the other that the products and services delivered by such
party for use in connection with the Project will be complete and in conformity
with the products and or services regularly supplied by each to purchasers and
lessees of its products.
11.3 Product Warranty. IRE/SafeNet Products shall be sold with a
warranty to be agreed upon between the parties hereto, essentially to the effect
that such product will be free from defects in design, workmanship and material,
with a time period (not to exceed one year) and on such other terms and
conditions as are to be agreed upon between the parties. Subject to the
limitations on warranty contained in this Agreement, IRE agrees to assume all
liability for breach of such warranty to the extent that a breach of warranty
relates solely to IRE Products. Subject to the limitations on warranty contained
in this Agreement, Lockheed agrees to assume all liability for breach of such
warranty to the extent that such breach relates to the assembly or configuration
of other products or services sold by Lockheed.
11.4 Limitation on Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
HEREIN AND EXCEPT FOR WARRANTY OF TITLE, NEITHER PARTY MAKES ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED TO THE OTHER WITH RESPECT TO ITS PRODUCTS.
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EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THERE ARE NO WARRANTIES OR ANY
AFFIRMATIONS OF FACT OR PROMISES BY EITHER PARTY HERETO AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. USE OF SUCH PRODUCTS CONSTITUTES THE CONSENT
OF THE OTHER PARTY HERETO TO ASSUME ALL RISKS OF SUCH USE AND TO HOLD THE OTHER
HARMLESS FOR ANY DAMAGES OR CLAIM OF DAMAGES ARISING IN ANY MANNER FROM SUCH
USE. THE EMPLOYEES OR AGENTS OF NEITHER PARTY HAVE ANY AUTHORITY TO MAKE ANY
WARRANTY OR REPRESENTATION REGARDING THE MANNER OR BENEFITS OF USE OF ANY
PRODUCT OTHER THAN THOSE EXPRESSLY SET FORTH IN THE SPECIFICATION FOR SUCH
PRODUCT.
12.0 Term and Termination
This Agreement shall commence on the effective date and shall terminate
on its first anniversary, unless earlier terminated as provided below or
extended by mutual agreement. Either party may terminate this Agreement on one
hundred eighty (180) day's written notice to the other party. Termination shall
have the effect of terminating the parties' obligations to continue any joint
marketing activity hereunder. Customer contracts for provision of products and
services that are in effect prior to the date of this Agreement's termination
will be unaffected by a termination. Prior to the effective date of this
Agreement's expiration and pursuant to notice, the parties will in good faith
attempt to negotiate an appropriate transition for any joint sales activities
underway prior the termination. Neither party shall have any obligation or
liability to the other or to any third party by reason of the rightful or
expiration of this Agreement.
13.0 Confidentiality
The parties use and disclosure of proprietary information shall be
subject to the terms of a Nondisclosure Agreement, executed by the parties and
attached hereto as Schedule C. Information which is disclosed orally and
identified as proprietary or confidential at the time of its disclosure shall be
so identified in writing within 5 days of first disclosure. The terms of this
provision shall survive termination of this Agreement.
14.0 Trademarks
All IRE products offered for commercial sale in accordance with the
Project shall be marked with the SafeNet xxxx on the package and otherwise in
accordance with 35 U.S.C. Sec. 287, if applicable. Nothing in this Agreement
shall be construed to grant either party any rights or license in or to the
other party's trademarks, service marks, logos and other proprietary marks
("Trademarks") other than as set forth hereinabove. Neither party shall use the
name, trademarks, trade names or service marks of the other party in any
advertisement, promotional statement, sales literature or any other form of
publicity or marketing without the prior written approval of the other party.
The terms of this provision shall survive termination of this Agreement.
Lockheed hereby acknowledges that it retains no right in or to the SafeNet
trademark and IRE hereby acknowledges that it retains no right in or to any
Lockheed trademarks.
15.0 Indemnification
15.1 Subject to the limitations contained in Sec. 18, Lockheed shall
indemnify, protect and save harmless IRE, its affiliates and subsidiaries from
and against any and all loss, liability, damage and expense, including
reasonable attorneys' fees arising out of and to the extent any third party
demand, claim, or suit for
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personal injury, including death, or damage to tangible property arising or
related solely to the Lockheed's negligent acts or omissions in performing its
obligations under this agreement. IRE shall give Lockheed prompt notice of any
such claim and Lockheed shall have the sole authority to defend or settle any
and all claims arising under this section. Lockheed shall not be liable for any
settlements or compromises unless Lockheed has approved such settlements or
compromises in advance or the defense of the claims has been tendered to
Lockheed and it failed to promptly undertake the defense.
15.2 Subject to the limitations contained in Sec. 18, IRE shall
indemnify, protect and save harmless Lockheed, its affiliates and subsidiaries
from and against any and all loss, liability, damage and expense, including
reasonable attorney's fees arising out of and to the extent any third party
demand, claim, or suit for personal injury, including death, or damage to
tangible property arising or related solely to IRE's negligent acts or omissions
in performing its obligations under this agreement. Lockheed shall give IRE
prompt notice of any such claim and IRE shall have the sole authority to defend
or settle any and all claims arising under this section. IRE shall not be liable
for any settlements or compromises unless IRE has approved such settlements or
compromises in advance or the defense of the claims has been tendered to IRE and
it failed to promptly undertake the defense.
16.0 Relationship of the Parties
This Agreement is not intended to be, nor shall it be construed as, a
joint venture, association, partnership, franchise or other form of business
relationship. Neither party shall have nor hold itself out as having any right
or power or authority to assume, create, or incur any expense, liability or
obligation, expressed or implied, on behalf of the other party, except as
expressly provided herein. Nothing in this Agreement shall prevent either
Lockheed or IRE from entering into another agreement with a third party or any
other joint marketing programs with a third party. Except as expressly agreed,
each party shall bear its own costs and expenses incurred under or in
conjunction with its performance of obligation contained in this Agreement.
17.0 Notices
All notices, demands or consents required or permitted hereunder
shall be in writing and shall be delivered, sent by facsimile (with confirmation
copy by mail) or telex, or mailed to IRE at the address first set forth in the
first paragraph of this Agreement and to Lockheed at 0000 Xxxxxxxxxx Xxxxx,
XxXxxx, XX 00000 or at such other address as shall have been given to the other
party in writing for the purposes of this clause. Such notices and other
communications shall be deemed effective upon the earliest to occur of (i)
actual delivery, (ii) five (5) days after mailing, addressed and postage
prepaid, returned receipt requested, as aforesaid, or (iii) one (1) business day
after transmission by telex, telegram or facsimile where receipt has been
confirmed by the same type of transmission or in writing received by the sender.
18.0 Limitation on Liability
Neither party shall be liable to the other for indirect, incidental,
consequential, reliance, punitive, exemplary or special damages, including
without limitation lost profits, regardless of the form of action. Terms of this
provision shall survive termination of this Agreement.
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19.0. Arbitration
Any dispute or disagreement arising between the parties in connection
with this Agreement, which is not settled to the mutual satisfaction of the
parties within thirty (30) days (or such longer period as may be mutually agreed
upon) from the date that either party informs the other in writing that such
dispute or disagreement exists and that arbitration is desired by that party,
shall be settled by arbitration in accordance with the J.A.M.S./ENDISPUTE
Arbitration Rules and Procedures, as amended by this Agreement. The cost of the
arbitration, including the fees and expenses of the arbitrator(s), will be
shared equally by the parties unless the award otherwise provides. Each party
shall bear the cost of preparing and presenting its case. The parties agree that
this provisions and the arbitrator's authority to grant relief shall be subject
to the United States Arbitration Act, 9 U. S.C. 1-16 et seq. ("USAA"), the
provisions of this Agreement, and the ABA AAA Code of Ethics for Arbitrators in
Commercial Disputes. The parties agree that the arbitrator(s)) shall have no
power or authority to make awards or issue orders of any kind except as
expressly permitted by this Agreement, and in no event shall the arbitrator(s)
have the authority to make any award that provides for punitive or exemplary
damages. The decision of the arbitrator(s) shall follow the plain meaning of the
relevant documents, and shall be final and binding upon the parties. The award
may be confirmed and enforced in any court of competent jurisdiction. All
post-award proceedings shall be governed by the USAA.
20.0 Assignment
Neither this Agreement nor any of the rights or obligations hereunder
may be assigned, delegated, sublicensed or otherwise transferred by either party
without the written consent of the other party except either party may at its
sole discretion assign, delegate or subcontract performance of its obligations
under this agreement to any other division, subsidiary, affiliate or successor
entity of said party, notwithstanding any such assignment, the assigning party
shall continue to be responsible for performance of this Agreement in accordance
with the terms of this Agreement unless its responsibility is expressly excused
by the other party.
21.0 Applicable Laws
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York without reference to its choice of law principles.
22.0 Publicity
The parties agree to release the press announcement attached hereto
as Schedule D upon execution by both parties of this Agreement. The parties
agree that no other news releases, media statements, or other public
announcements concerning the existence of this Agreement or any of its terms and
conditions or performance obligations of the parties shall be made without the
prior written approval of the other party.
23.0 Miscellaneous
23.1 No modification, amendment, supplement to, or waiver of the
Agreement or any of its provisions shall be binding upon the parties hereto
unless made in writing and duly signed by an authorized representative of the
party against whom enforcement thereof is sought. A failure or delay of either
party to this Agreement to enforce any of the provisions thereof, to exercise
any option which is herein provided, or to require performance of any provision
hereof shall in no way be construed be a waiver of such provisions.
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23.2 If any provision of this Agreement shall be declared invalid,
illegal, or unenforceable as a matter of law, then that provision shall be
deemed void and of no effect and the remainder of the Agreement
shall survive such event.
23.3 The headings in this Agreement are for the purpose of reference
only and shall not in any way limit or otherwise affect the meaning or
interpretation of any of the terms hereof.
23.4 This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
24.0 Entirety of Agreement
This Agreement, together with its Schedules, constitutes the entire
Agreement and supersedes all previous agreements, promises, representations,
understandings, and negotiations between the parties, whether written or oral,
with respect to the subject matter hereof
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
INFORMATION RESOURCE ENGINEERING, INC. LOCKHEED XXXXXX CORPORATION
INFORMATION SYSTEMS & TECHNOLOGIES
/s/ X. X. XXXXXX [SIG]
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Signature Signature
Printed or Typed Name X. X. XXXXXX Printed or Typed Name
Title C.E.O. Title VICE PRESIDENT
Date 6/30/97 Date 6/30/97
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