EXHIBIT 10.3
Master Marketing Agreement
This Master Marketing Agreement ("Agreement"), is entered into as of the later
of the dates set forth at the end of this Agreement (the "Effective Date"), by
and between Integrated Maritime Platforms International, Inc. a corporation duly
organized under the laws of the State of Washington and having its principal
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("IMPI"), and
Science Applications International Corporation, a corporation duly organized
under the laws of Delaware and having its principal place of business at 00000
Xxxxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("SAIC"). IMPI and SAIC may
hereinafter be referred to individually as a "Party" or collectively as the
"Parties".
WHEREAS, SAIC is recognized as being a leader in the telecommunications and
systems integration field with technologies and expertise that includes, but is
not limited to, systems design and engineering, database architecture, software
development, and large project management.
WHEREAS, IMPI is in the business of providing high speed multi-mission marine
vessels,
WHEREAS, IMPI and SAIC mutually desire to establish a marketing relationship
with each other, to further both their businesses.
NOW THEREFORE, in consideration of the mutual terms and conditions set forth
herein, the Parties hereby agree as follows:
1. Scope of the Agreement. This Agreement is a master agreement that
commits the Parties to work together for their mutual benefit to
identify and advise each other as to specific opportunities to market
and advertise their respective services and products, as provided by
Attachment A. Each marketing opportunity shall be defined and described
in written, mutually agreed-upon exhibits attached hereto (each a
"Marketing Exhibit"). Each Marketing Exhibit shall specify the
particular marketing opportunity, the complimentary products and/or
services to be marketed, the prospective customer base, and the scope
of effort required of each Party. Each Marketing Exhibit shall, when
executed, become an addendum to this Agreement. The first Marketing
Exhibit shall be titled "Marketing Exhibit No. 1," and additional
Marketing Exhibits shall be numbered sequentially.
(a) The obligations of the Parties under this Agreement are
non-exclusive. Either Party may, at any time and for any
reason, enter into similar arrangements with any other entity
with respect to the same or similar areas or opportunities set
forth in the Marketing Exhibits or for any other business
purposes.
(b) Unless otherwise specified in this Agreement or a Marketing
Exhibit executed hereunder, each Party will bear all costs,
risks and liabilities incurred by it arising out of its
obligations and efforts under this Agreement and any such
Marketing Exhibit. Unless otherwise specified in this
Agreement or a Marketing Exhibit, neither Party shall have any
right to any reimbursement, payment or compensation of any
kind from the other Party for activities pursuant to this
Agreement or a Marketing Exhibit.
(c) This Agreement, including all Marketing Exhibits, sets forth
the provisions and conditions pursuant to which the Parties
may identify and advise each other of a mutually beneficial
marketing opportunity.
(d) Each Party shall designate one or more authorized
representatives to interact with the other for
purposes of this Agreement. Each Party's
representative(s) may select and submit to the other
for its consideration such marketing opportunities
that the Party believes may be of mutual interest and
the representatives shall jointly determine whether
to pursue such marketing opportunity together. If the
Parties determine to pursue an opportunity jointly,
the representatives shall determine the appropriate
marketing strategy. The representatives shall meet
and confer periodically as necessary, either in
person or by telephone, to discuss prospective
marketing opportunities and performance with respect
to existing Marketing Exhibits. If either Party's
representative determines that it is not in that
Party's best interest to pursue an opportunity
jointly, either Party is free to pursue such
opportunity, using its sole efforts or in conjunction
with any other person or entity.
(e) In those circumstances where the Parties' marketing
efforts identify a specific business opportunity, as
set forth in a Marketing Exhibit, and the Parties
decide to pursue the opportunity jointly, then the
Parties agree to enter into good faith negotiations
to execute an appropriate definitive agreement for
the particular business opportunity. Each such
definitive agreement shall set forth additional terms
and conditions with respect to the rights and
obligations of the Parties with regard to that
specific business opportunity.
2. Term and Termination.
(a) This Agreement shall have an initial term of twelve
(12) months commencing on the Effective Date (the
"Initial Term"). Following the Initial Term, this
Agreement may be extended only by the written, mutual
agreement of both Parties for an additional period of
twelve (12) months (each a "Renewal Term"). For
purposes of this Agreement, the Initial Term and any
Renewal Terms shall be known as the Term.
(b) Each Party shall have the right to terminate this
Agreement at any time and for any reason, with or
without cause, effective upon thirty (30) days prior
written notice. Neither Party shall be entitled to
reimbursement for or be obligated to pay any damages,
costs or expenses in connection with such
termination. Upon the termination of this Agreement,
each Party will return to the other Party or destroy
all drawings, specifications, manuals and other
printed or reproduced material (including information
stored on machine readable media) provided by the
disclosing Party to the receiving Party and shall use
commercially reasonable efforts to destroy all backup
copies of such information made by the receiving
Party or its employees, wherever located.
(c) The Parties acknowledge that termination or
expiration of this Agreement shall terminate each
Marketing Exhibit executed hereunder, unless the
Parties expressly agree to the contrary in writing.
3. Intellectual Property.
(a) The Parties shall each retain ownership of and all
right, title and interest in and to their respective
pre-existing Intellectual Property (as that term is
defined in Article 3(c) below), and no license or
right to use therein, whether express or implied, is
granted by this Agreement or as a result of the work
performed by either Party hereunder or in pursuit
hereof. To the extent the Parties wish to grant to
the other rights or interests in pre-existing
Intellectual Property, separate license agreements on
mutually acceptable terms will be executed.
(b) With respect to Intellectual Property created as a
result of the combined efforts of both Parties, prior
to undertaking such creation the Parties shall set
forth in a separate written agreement the specific
terms and conditions of ownership and rights to use
such newly created Intellectual Property. In the
event the Parties fail to set forth such a prior
written agreement, then the Parties hereby jointly
agree any such newly created Intellectual Property
shall be jointly owned, without obligation of
accounting. Such joint ownership in any such newly
created Intellectual Property shall not be construed
to include any express or implied form of license or
right to use the pre-existing Intellectual Property
of either Party.
(c) As used herein the term "Intellectual Property" shall
mean patents, copyrights, trade marks, trade names,
inventions (whether or not patentable), works of
authorship, trade secrets, techniques, know-how,
ideas, concepts, algorithms and all other forms of
intellectual property rights. As used herein the term
"pre-existing Intellectual Property" means any
Intellectual Property previously conceived, developed
or reduced to tangible medium as demonstrated by
written documentation.
4. Warranty Disclaimer and Limitation of Liability. Neither Party
makes any warranties whatsoever to the other Party, express or
implied, with regard to the products or services of that Party
or any matter relating to this Agreement and any Marketing
Exhibits, and each Party specifically disclaims all such
warranties and conditions, including any warranty of title,
merchantability, and fitness for a particular purpose. In no
event shall either Party be liable to the other for any
punitive, exemplary, special, indirect, incidental or
consequential damages (including, but not limited to, lost
profits, lost revenues, lost business opportunities, loss of
use or equipment down time, and loss of or corruption to data)
arising out of or relating to this Agreement or any Marketing
Exhibit, regardless of the legal theory under which such
damages are sought, and even if the Parties have been advised
of the possibility of such damages or loss. The liability of
either Party to the other for any claims, liabilities, actions
or damages arising out of or relating to this Agreement or any
Marketing Exhibit, howsoever caused and regardless of the
legal theory asserted, including breach of contract or
warranty, tort, strict liability, statutory liability or
otherwise, shall not, in the aggregate, exceed the amount of
out-of-pocket costs incurred by the other Party in connection
with the specific Marketing Exhibit or opportunity under which
such claim arose.
5. Confidentiality. In the performance of this Agreement and any
Marketing Exhibits executed hereunder, certain information may
be exchanged between the Parties that is proprietary and
confidential in nature. This proprietary and confidential
information is exchanged solely for the purposes set forth in
this Agreement and any such Marketing Agreement. This
proprietary and confidential information shall remain the
property of the disclosing Party and shall be subject to the
terms and conditions of the Non-Disclosure Agreement attached
hereto as Exhibit A.
6. Export Control. The Parties to this Agreement shall comply
with all applicable United States export and foreign import
laws, rules, and regulations in the performance of the
Parties' responsibilities and obligations under this
Agreement. Without limiting the generality of the foregoing,
the Parties shall not disclose any U.S.-origin products,
know-how, technical data, documentation, or other products or
materials furnished to it pursuant to this Agreement, to any
person or in any manner which would constitute a violation of
the export control regulations of the United States then in
effect.
7. Disputes. Any controversy, claim or dispute ("Dispute")
arising out of or relating to this Agreement shall be resolved
by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then
in effect. Before commencing any such arbitration, the Parties
agree to enter into negotiations to resolve the Dispute. If
the Parties are unable to resolve the Dispute by good faith
negotiation, either Party may refer the matter to arbitration.
The arbitration shall take place in the County of San Diego,
State of California. The arbitrator(s) shall be bound to
follow the provisions of this Agreement in resolving the
dispute, and may not award any damages which are excluded by
this Agreement. The decision of the arbitrator(s) shall be
final and binding on the Parties, and any award of the
arbitrator(s) may be entered or enforced in any court of
competent jurisdiction. Any request for arbitration of a claim
by either Party against the other relating to this Agreement
must be filed no later than one (1) year after the date on
which this Agreement expires or terminates, or such claim
shall be time barred.
8. Notices. All notices, certificates, acknowledgments or other
written communications (hereinafter referred to as "Notices")
required to be given under this Agreement shall be in writing
and shall be deemed to have been given and properly delivered
if duly mailed by certified or registered mail to the other
Party at its address as follows, or to such other address as
either Party may, by written notice, designate to the other.
Additionally, Notices sent by any other means (i.e.,
facsimile, overnight delivery, courier, and the like) are
acceptable subject to written confirmation of both the
transmission and receipt of the Notice.
Xxxxxx Xxxxxxx Name
Project Manager INSERT Title
Integrated Maritime Science Applications
Platforms International International Corporation
P.O. Box 149 10260 Campus Point Drive
MS INSERT
Xxxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
Telephone 000-000-0000 Telephone INSERT
Fax 000-000-0000 Fax INSERT
e-mail xxxxxxxx@xxxxxxxxxxx.xxx e-mail INSERT
9. Assignment. This Agreement may not be assigned, novated or
otherwise transferred by operation of law or otherwise by
either Party without the prior written consent of the other
Party, which consent shall not be unreasonably withheld. Any
change of control of a Party shall be deemed an assignment of
this Agreement that requires the prior written consent of the
other Party. For purposes of this Agreement, "change of
control" means any merger, consolidation, sale of all or
substantially all of the assets or sale of a substantial block
of stock, of a Party. Any such assignment, novation or
transfer by one Party not in accordance with this provision
shall be a material breach of this Agreement and shall be
grounds for immediate termination thereof by the non-breaching
Party, in addition to any other remedies that may be available
at law or in equity to the non-breaching Party.
10. Waiver or Modification. This Agreement may be modified, or
part(s) hereof waived, only by an instrument in writing
specifically referencing this Agreement and signed by an
authorized representative of the Party against whom
enforcement of the purported modification or waiver is sought.
11. Relationship of Parties. The Parties are acting as independent
contractors in all respects with regard to this Agreement.
Nothing contained in this Agreement shall be deemed or
construed to create a partnership, joint venture, agency, or
other relationship other than that expressly described herein.
12. Publicity. Neither Party may issue a press release or make any
disclosure to any other person or entity regarding the
existence of or the subject matter of this Agreement without
the prior written consent of the other Party.
13. Applicable Law. This Agreement shall be governed by and
construed under the laws of the State of California, without
regard to its laws relating to conflict or choice of laws.
14. Entire Agreement. This Agreement, including any and all
Exhibits attached hereto, which are hereby incorporated by
reference, constitutes the entire agreement and understanding
between the Parties and supersedes and replaces any and all
prior or contemporaneous proposals, agreements,
understandings, commitments or representations of any kind,
whether written or oral, relating to the subject matter
hereof.
15. Multiple Copies or Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement shall not be
effective until the execution and delivery between each of the
parties of at least one (1) set of the counterparts.
16. Headings. The headings and titles of the various sections of
this Agreement are intended solely for convenience of
reference and are not intended to define, limit, explain,
expand, modify or place any construction on any of the
provisions of this Agreement.
IN WITNESS WHEREOF, the Parties represent and warrant that this Agreement is
executed by duly authorized representatives of each Party as set forth on the
date indicated below.
SCIENCE APPLICATIONS
INTEGRATED MARITIME
PLATFORMS INTERNATINAL, Inc. INTERNATIONAL CORPORATION
-------------------------------- --------------------------------------
Xxxxxxxx Xxxxxx
-------------------------------- --------------------------------------
Name Name
President
-------------------------------- --------------------------------------
Title Title
September 24, 2003
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Date Date
