EXHIBIT 10.12
TEAMING AGREEMENT
THIS TEAMING AGREEMENT ("Agreement"), made and entered into as of this
9th day
of July 2004, by and between AccuPoll,
Inc., a Delaware corporation (hereinafter
"AccuPoll"), with offices located at 15101 Red
Hill Ave., Suite 220, Tustin, CA
9278, and Alternative Resources
Corporation, a Delaware corporation with offices
located at 600 Hart Road, Suite 300, Barrington, IL 60010-2654 (hereinafter
"Partner").
PREMISES
AccuPoll and
Partner believe they will benefit from a teaming
arrangement to develop the best management
and technical approach
for proposals
to be submitted to various customers.
AccuPoll and Partner
have agreed to assign
responsibilities
for the
work on each proposal and the work to be performed for each customer in
Opportunity Plans to be negotiated by the parties and
incorporated
into this
Agreement as set forth below.
In consideration of the mutual promises in this Agreement,
the parties
agree as follows:
AGREEMENT
1. An "Opportunity" is a sales opportunity. The parties may agree to
initiate a single
Opportunity or multiple Opportunities with each other
covering work for one or more customers. Neither party will be
obligated
to
the other under this Agreement until their authorized representatives
execute a separate written "Opportunity Plan" for the each customer
and
Opportunity. Each
executed Opportunity Plan will be attached to and
incorporated into this
Agreement as an Exhibit. Each Opportunity Plan
will
designate one of the parties as the prime contractor (the "Prime")
and
the other party as the subcontractor (the "Subcontractor") for the
Opportunity and will
apportion the work and responsibilities for the
Opportunity between the two parties.
2. The Prime will
submit the proposal to the customer for the Opportunity
and
subject to any conditions set forth in the Opportunity Plan, will
include the other party as a proposed subcontractor. In designating the
Prime for each
Opportunity, the
management of the parties will consider
such
factors as the relationship with the customer, the role of each in
project management,
and the relative size and importance of their
respective scopes of work.
3. Each party will
use its best efforts to produce proposals that will cause
the
selection of the Prime for the Opportunity and the acceptance of
the
Subcontractor for the
work assigned to it. Each party will negotiate in
good
faith the contracts or subcontracts that result from the
proposals.
4. In any
proposal and in all
discussions
with the customer, each party
will:
o Identify
the other party as its team member
o State
the relationship of the parties as set forth in this
Agreement
o Describe
the scope and
responsibility of each party as set forth
in the Opportunity Plan.
5. Each party will
furnish all proposal
material pertinent to
its scope of
work
as defined in the Opportunity Plan attached as an Exhibit,
including
but
not limited to,
manuscripts and art works. The parties will furnish
qualified personnel who will cooperate in drafting a proposal.
6. The Subcontractor will assist the Prime as reasonably requested,
including without
limitation,
providing
management
and technical
AccuPoll Teaming Agreement
Confidential
1
<PAGE>
personnel for
discussions
and negotiations with the customer.
Notwithstanding the foregoing, 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.
7. Each party will
bear all costs, risks and liabilities incurred by it and
arising out of its
obligations and
efforts under this Agreement during
the
pre-proposal and proposal periods, which are defined as the
periods
up
to an award of a prime
contract and
subcontract.
The Prime will be
responsible for the graphic arts, printing, binding, and delivery costs
of
the proposal. Neither party shall have any right to any
reimbursement,
payment or
compensation of any
kind from the other during the period up
to
the award of a prime contract and subcontract.
8. The Prime will
have the sole right to decide the form and content of all
documents submitted to the customer; however, the Prime will afford the
Subcontractor the
opportunity to review
the form and the content of the
proposal and
will make reasonable efforts to ensure that the
Subcontractor's information is appropriately presented. The
Subcontractor
will
offer the Prime its advice and aid, and will prepare the
substantive
content of
its area of the proposal and other documents. Before
submitting the
proposal, the Prime will provide the Subcontractor a
reasonable opportunity to review the proposal and provided
comments.
9. If a prime
contract ("Contract")
is awarded as a result
of the proposal
submitted to the
customer, the Prime
will, to the extent
permitted by
customer's rules,
regulations and
applicable law, enter into good faith
negotiations with the Subcontractor for a subcontract for the
subcontract
work
set forth in the
Opportunity Plan.
The subcontract work must be
performed in
accordance
with the Contract schedule and technical
specifications at a
mutually agreed
price. Agreement on a subcontract
must
be reached within such time as the Prime deems necessary to meet
the
requirements of
the Contract. The terms and conditions of the subcontract
will
be generally
consistent
with the terms and conditions in the
Contract, including any contract provisions required by the
Customer. The
subcontract terms and conditions will not conflict with customer
rules or
policies or applicable laws and regulations.
10. The customer may
direct the Prime to place the work contemplated as the
Subcontractor's responsibility to another source or direct that
such work
be
competitively
bid. In either case, the Prime will comply with the
customer's
direction and
will have no further obligation to the
Subcontractor with
respect to that particular proposal, except as
regarding the
protection of
proprietary
data. The Prime will take no
action that would cause or tend to cause the customer to
disapprove
the
Subcontractor.
11. The Prime will be the
primary contact
with the customer concerning a
proposal. If it
becomes desirable for
the Subcontractor to
contact the
customer concerning
the proposal,
the contact shall be
approved by the
Prime to ensure
coordination of efforts and understanding of commitments
prior to such contact.
The Prime's
approval will not
unreasonably
be
withheld.
12. Although the Prime is the primary interface with the customer on the
Opportunity, the
Subcontractor
may have continuing
relations with the
customer and in the
course of such relations may receive inquiries
concerning the Opportunity. Such communications by the
customer directly
with
the Subcontractor
concerning the
Opportunity shall not be a breach
of
this Agreement,
provided the
Subcontractor timely
informs the Prime
about the contact.
13. If the Prime is to make presentations to the customer concerning a
proposal, the Prime
will inform the
Subcontractor of the content of the
presentations, subject
to any prohibitions
or restrictions which the
customer may impose.
If a presentation
relates to the
Subcontractor's
scope of work, the
Subcontractor
will support it as requested by the
Prime.
14. Any news release, public announcement, advertisement or publicity
released by either party concerning this Agreement, or any proposals,
AccuPoll Teaming Agreement
Confidential
2
<PAGE>
resulting contracts,
or subcontracts, will be subject to the prior
approval of the other
party, except that
this Agreement
and the terms
thereof may be made known to a customer. Any such publicity shall give
due
credit to the contribution of each party.
15. Each party will designate in writing one or more individuals as its
representative(s) responsible for performance of the party's
obligations.
16. "Confidential
Information"
means any and all
non-public
technical or
business information,
including third party
information,
furnished or
disclosed by one party (the "Disclosing Party") to the other party
(the
"Receiving Party")
that, if in a tangible
medium, the Disclosing
Party
has
marked as
"confidential,"
"proprietary" or similarly at the time of
disclosure and that, if disclosed orally, the Disclosing Party indicates
as
confidential
or proprietary at the time of disclosure and
subsequently, within
twenty (20) days after the date of such oral
disclosure, confirms
as confidential or proprietary in a writing sent to
the
Receiving Party that
describes the
information
that is to be kept
confidential. Each
party will maintain all Confidential Information it
receives from the
other in confidence using commercially reasonable
standards and no less
care than it uses with
its own information,
and
will
use and disclose
such information only as contemplated by this
Agreement or as
authorized
by the Disclosing Party. Each party will
require its personnel to do likewise. These obligations do not apply to
information that is:
(a)
Generally available to the public
