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EXHIBIT 10.2
BUSINESS COOPERATION AGREEMENT
This
BUSINESS
COOPERATION AGREEMENT (the
“Agreement”) is made as of this 28th day of
February, 2008, by and between Intelligentias, Inc., a Nevada
corporation (“Intelligentias”), and Datakom
Gesellschaft fuer Datenkommunikation mbH, a German corporation
(“Datakom”).
WHEREAS,
Intelligentias is a leading provider of forensic data
retention software
(the “Intelligentias Software”) for
telecommunications companies, Internet service providers
(ISPs), businesses and law enforcement agencies;
WHEREAS,
the focus of Datakom’s main business line named G-TEN is
system integration and creation of products which allow for
lawful interception of telecommunications for law enforcement
agencies and intelligence services (the “DATAKOM/GTEN
Products”)
WHEREAS,
Intelligentias and Datakom desire to enter into an arrangement
for the purpose of cooperatively marketing and selling the
Intelligentias Software and the DATAKOM/GTEN Products
(hereinafter referred to together as the “Contractual
Products”); and
WHEREAS,
this Agreement defines the rights and responsibilities of
Intelligentias and Datakom in furthering such
objectives.
NOW,
THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
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a.
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The
parties agree to engage in, on a case by case basis, and in
any case on a non-exclusive (except as defined herein) basis,
cooperative marketing efforts to promote the sale of
Contractual Products as described herein.
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b.
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Within
thirty (30) days of the date of this Agreement, the parties
will develop an initial plan to jointly market and sell the
Contractual Products to mutually identified customers (the
“Targeted Clients”). In addition to
directly marketing and promoting the Intelligentias Software
by Intelligentias and Datakom/GTEN Products by Datakom to the
Targeted Clients, the parties will (a) introduce other selling
opportunities to the other party’s sales force in new
markets and (b) participate, when necessary, in joint sales
calls with the other party. Each of Intelligentias
and Datakom shall use reasonable commercial efforts to
identify sales opportunities for the services of the other
party. Should either party identify a sales
opportunity for the services of the other party, the
party
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identifying
such sales opportunity shall invite, by written invitation,
the other party to participate is such sales
opportunity.
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c.
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If one party (the “Inviting Party”) invites the other
party (the “Invited Party”) to a prospective client for
a sales opportunity as set forth in this Section 1, and the Invited
Party accepts such invitation, then, for a period of three (3)
months following such introduction, the Invited
Party agrees not to recommend to such prospective client any
company that provides products competitive to the Inviting
Party. The parties acknowledge and agree to always
represent the other party’s services in a positive
manner.
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d.
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The
parties acknowledge and agree that when jointly marketing the
Contractual Products to a potential client each party is
responsible for the pricing of their respective
products. At times, Intelligentias’s pricing
and Datakom’s pricing may be combined in a single
proposal to be presented to a potential client by either
Intelligentias or Datakom. Notwithstanding that
Intelligentias’s pricing and Datakom’s pricing may
be combined in an initial proposal each party will enter into
a separate agreement with the client regarding the provision
of their respective services and payment for their respective
services unless the parties mutually agree in writing to have
one party enter into a relationship with the potential
client. In the event the parties enter into one
agreement with a client for the payment of the Intelligentias
Software and Datakom/GTEN Products the parties will, prior to
the execution of any such agreement with a potential client,
mutually agree as to how each party will get paid for the
provision of their software.
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e.
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Within
ten (10) days of the date of this Agreement, Intelligentias
and Datakom will each dedicate one (1) full time senior sales
person/consultant to promote –the sale of the
Intelligentias Software and Datakom/GTEN Products to the
Targeted Clients as well as other potential
clients. Within thirty (30) days of the date of
this Agreement, the Intelligentias dedicated person and the
Datakom dedicated person will meet to discuss the promotion of
the Intelligentias Software and Datakom/GTEN Products to the
Targeted Clients.
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f.
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Within
thirty (30) days of the date of this Agreement, the Intelligentias
dedicated person and the Datakom dedicated person shall develop, on
a case by case basis, a client sales presentation which discusses
the benefits of both the Intelligentias Software and Datakom/GTEN
Products to enable each party’s sales
associates/consultants to effectively market and sell both the
Intelligentias Software and Datakom/GTEN Products to Targeted
Clients. In addition, the Intelligentias dedicated person and the
Datakom dedicated person agree to arrange introductory meetings
between Datakom sales associates/consultants (to be identified in
Datakom’s sole discretion) and members of Intelligentias
sales associates/consultants (to be identified in
Intelligentias’s sole discretion) to explain the
Intelligentias Software
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and Datakom/GTEN Products when appropriate and in view of a
concrete project/sale activity. The parties acknowledge and agree
that each party will bear its own costs related to the development
of the sales presentation and introductory meetings described in
this Section 1(f). For clarification, no party
should market the other party’s products or approach any
Targeted Client without prior mutual agreement of the
parties.
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g.
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Both
parties agree to work together to develop the appropriate
sales support literature on a case by case basis that will
appropriately describe how the parties’ services work in
conjunction with each other, provided, however, that such
literature shall only be used following written approval by
both parties. Such collateral shall include, but
not be limited to, direct mailing materials for transmission
to current customers of Intelligentias and Datakom, white
paper(s), sales presentations and/or case
studies. All collateral materials developed
pursuant to this Section 1(g) shall contain the proprietary
marks of both parties. The parties shall have a
joint ownership interest in all such collateral materials and
each shall have an unlimited right and license to use, copy,
modify and distribute such materials. Each of the
parties may distribute, to any of its customers, potential
customers and partners, copies of any and all
jointly-developed sales collateral. The parties may
also mutually agree to present together at trade shows,
seminars and/or conferences at each party’s own cost and
expense.
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h.
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The
parties acknowledge and agree to mutually evaluate new
technology and services that allow both parties to expand the
delivery of the Intelligentias Software and other
Intelligentias product offerings and the Datakom/GTEN Products
and other product offerings of Datakom on a case by case
basis.
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2.
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Exclusive Marketing Rights to G-TEN Line of
Products
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a.
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Datakom
hereby appoints Intelligentias, and Intelligentias hereby accepts
such appointment, as Datakom’s exclusive representative to
market the G-TEN line of products as further described on Exhibit A
hereto (the “GTEN Products”) to end-users in the
territories set forth on Exhibit B hereto (the
“Territories”) and provide installation and maintenance
services, on an as requested basis with respect the GTEN Products
to end-users in the Territories.
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b.
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Datakom
shall supply Intelligentias with copies of Datakom’s
marketing materials for the GTEN Products when appropriate and on a
case by case basis. Intelligentias is authorized to make
copies of the marketing materials for distribution to end-users,
upon written approval of Datakom in each individual
case.
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c.
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Datakom
shall provide Intelligentias, at no cost to Intelligentias, with
all modifications and enhancements to the GTEN Products which are
made generally available to users of the GTEN
Products.
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d.
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Datakom
has already provided to Intelligentias, at no cost to
Intelligentias, basic and advanced technical training regarding the
marketing, installation, use, and maintenance of the GTEN
Products. Datakom will provide periodic technical
training sessions, technical assistance, by correspondence,
telephone, facsimile transmission, electronic mail, visits of
Datakom personnel and other mutually agreed upon means regarding
the marketing, installation, use and maintenance of the GTEN
Products, whereby the means of assistance in each individual case
shall be in Datakom’s own discretion.
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e.
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Datakom
hereby grants to Intelligentias, subject to the terms and
conditions contained in this Agreement, an exclusive and
non-transferable license to (i) market and provide installation and
maintenance services, as provided in this Agreement, with respect
to the GTEN Products within the Territories and (ii) use the GTEN
Products to the extent required to fulfill Intelligentias’s
marketing and related services and support obligations under this
Agreement.
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f.
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Datakom
warrants that it has the right to grant to Intelligentias a license
for the marketing, support and use of the GTEN Products
contemplated by this Agreement. Datakom warrants that the GTEN
Products will substantially conform with the functionality
described in the GTEN Products technical
documentation. The foregoing warranty shall be void if
any error or malfunction with respect to the GTEN Products is
caused by machine malfunction, by modification not made or
authorized by Datakom, or by incorrect data or procedures used by
Intelligentias. Datakom’s sole obligation with
respect to any GTEN Products which does not perform as warranted
will be to use its best efforts to correct, at its expense, any
error by repair or replacement of the GTEN
Products Intelligentias shall make no representation or
warranty concerning the GTEN Products other than those which are in
all respects consistent with, and do not expand the scope of,
Datakom’s representations and warranties in this Agreement.
The foregoing warranties in this Section 2(f) are given in lieu of
all other warranties, whether express or implied, in fact or in
law, including the implied warranties of merchantability and
fitness for a particular purpose.
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3.
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Resale . During the Term of this Agreement, each
party may order on a case by case basis computer software systems
and services from the other party for resale to end-users on a
non-exclusive world-wide basis. Such resales shall be
subject to the terms, conditions and restrictions as agreed between
the parties in each individual case. The parties hereby
further agree that, subject to applicable law, (i) any
resales from Datakom to Intelligentias shall be governed by German
Law and that any disputes arising from or in conjunction with such
resale shall be referred to the courts for the administrative area
in which Datakom has its
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statutory
seat; and (ii) any resales from Intelligentias to Datakom
shall be governed by the laws of the State of California,
without giving effect to the choice of law principles thereof,
and that any disputes arising from or in conjunction with such
resale shall be referred to the state or federal courts in San
Francisco or San Mateo County, California.
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4.
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Compensation . Except as set forth in this
Agreement or the Exhibits hereto, as full compensation for the
arrangements and obligations set forth herein, Intelligentias
agrees to pay Datakom two million one hundred fifty thousand United
States dollars (US$2,150,000), which shall be due and payable
pursuant to the Escrow Agreement, dated as of February 28, 2008,
attached hereto as Exhibit C
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5.
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Confidentiality . In connection with performing the services
detailed in this Agreement, each party (“Discloser”)
may disclose to the other (“Recipient”) certain
proprietary and confidential information
(“Information”), which Information shall be maintained
in confidence by the Recipient in accordance with this Section
5.
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a.
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Recipient
agrees that it shall maintain the Information in confidence and
limit its use to the purposes specified in this Agreement using at
least the same degree of care as it employs with respect to its own
proprietary and confidential information.
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b.
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Discloser
agrees that Recipient shall have no obligation with respect to any
Information which:
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(1)
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is
now or hereafter becomes publicly known,
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(2)
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is
disclosed to Recipient by a third party that Recipient believes is
legally entitled to disclose such information,
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(3)
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is
known by Recipient prior to its receipt of the
information,
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(4)
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is
disclosed to a third party with the Discloser’s written
consent,
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(5)
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is
disclosed by the Discloser to a third party without the same
restrictions as set forth herein,
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(6)
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is
required to be disclosed by a court of competent jurisdiction,
administrative agency or governmental body, or by law, rule or
regulation, or by applicable regulatory or professional standards,
or
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(7)
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is
disclosed by Recipient in connection with any judicial or other
proceeding involving the Discloser or a client and the Recipient
(or any officers, directors, partners, principals or employees of
the Recipient) (whether or not such proceeding involves any third
parties) relating to the Recipient’s services for a client or
this Agreement.
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c.
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Discloser
shall retain ti
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