STRATEGIC ALLIANCE AND JOINT DEVELOPMENT
AGREEMENT
This STRATEGIC ALLIANCE AND JOINT DEVELOPMENT
AGREEMENT (the “Agreement”) is entered into as of
October 16, 2007, by and between Guardian Technologies
International, Inc., a Delaware corporation with offices located at
516 Herndon Parkway, Herndon, Virginia 20170
(“Guardian”), and Control Screening, LLC (d.b.a.
AUTOCLEAR), a limited liability corporation located at 2 Gardner
Road, Fairfield, New Jersey 07004 (“Control
Screening”).
RECITALS
WHEREAS, Guardian owns rights to certain
know-how, trade secrets, proprietary intellectual property, and
patent applications relating to image clarification,
visualization, and computer-aided-detection (“CAD”)
in image processing, based on its Signature
Mapping™ algorithmic technology for clarification,
visualization and detection including, but not limited to,
automated explosives, weapons, illegal drugs and other
contraband detection.
WHEREAS, Control Screening owns rights to
certain know-how, trade secrets, proprietary intellectual
property, patents and patent applications relating to high
quality, advanced X-ray scanners ranging from portable and
compact systems that can fit through doorways designed for
screening small and large parcels, mail and carry-on bags at
airports, courthouses, public buildings and mailrooms to
heavy-duty, conveyorized x-ray scanners for screening checked
luggage, cargo, pallets and containers at airports, seaports and
storage facilities.
WHEREAS, Control Screening and Guardian
(the “Parties”) wish to enter into a strategic
development, integration and joint marketing agreement to
deliver fully integrated, automated threat detection
hardware/software solutions for the homeland security
marketplace, on the terms and subject to the conditions of this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the
terms and conditions contained herein, and for other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
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DEFINITIONS
“Affiliate” means any person,
directly or indirectly, controlling, controlled by or under
common control with any other person. “Control”
shall mean the direct or indirect ownership of 50% or more of
the voting interest in, or 50% or more of the interest in the
income of, such other person, or the ability to appoint, elect
or direct at least 50% of the governing body of any such
person.
“ PinPoint ” means an
interconnected set of digital image and data processing
methodologies, including but not limited to methodologies that
encompass three domains common to imaging informatics: image
processing, data mining, and rules generation through machine
learning that enables automatic detection and decision-making.
In the image processing domain, a component called Signature
Mapping is used, which is a dynamic and iterative
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process, in which specifically designed
algorithms impact image pixels that represent the target
material in a way that causes these groups of related pixels to
react in a unique collective way. This response-based reaction
generates new groups of self classifying pixel features that
result in a unique set of signatures for each material.
“Control Screening Products” means
any products, supplies or other goods which are designed,
developed, manufactured or marketed by Control Screening
independent of Guardian and this Collaboration Agreement,
whether existing on the date of this Agreement or subsequently
developed, acquired or otherwise obtained by Control
Screening.
“Party” or “Parties”
means Control Screening or Guardian, or Control Screening and
Guardian, collectively, as appropriate.
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GENERAL AGREEMENT
2.1
This Agreement contemplates certain joint
development activities between Guardian and Control Screening
that are intended to facilitate and promote the delivery of
fully integrated, automated threat detection solutions (hardware
& software) by, among other things, integrating
Guardian’s PinPoint technology with Control
Screening’s advanced x-ray scanners, including on a
priority basis the AutoClear 6040 baggage scanner and the
multi-view AT prototype scanner.
2.2
The identification of product/products and the
specific terms regarding the scope and type of the collaborative
efforts (including, without limitation, the economic terms with
respect to the parties), shall be determined from
time-to-time.
2.3
Project Plans . Notwithstanding the
provisions of Sections 2.1 and 2.2 above, the Parties understand
that the technical and commercial feasibility of the Projects
has not been established. Accordingly, while it is the present
intent of the parties to undertake the Projects, either party
may at its sole discretion decline to agree to undertake any or
all of the Projects without obligation or penalty. It is further
understood and agreed that each Project undertaken pursuant to
this Agreement will be subject to the execution and delivery by
the Parties of a separate Project plan for each Project
undertaken (each, a "Project Plan"). When executed, each Project
Plan will be attached to and incorporated by reference into this
Agreement, and the terms and conditions of the Project Plan
shall control to the extent inconsistent with the terms
contained herein. The Parties agree that each Project Plan will
set forth, among other things as the parties shall deem
appropriate, the following:
2.3.1
a detailed description of the Project;
2.3.2
any design documents or specifications (unless
the Project contemplates creation or development of the
same);
2.3.3
Project deliverables, if any, that either or
both Parties will be responsible for creating and
developing;
2.3.4
tasks, responsibilities, covenants and
agreements of each Party relating to the Project;
2.3.5
deadlines, interim milestones, and other matters
relating to timing and delivery or performance under the
Project;
2.3.6
Intellectual Property rights or licenses to the
extent different from the terms of
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this Agreement;
2.3.7
exclusivity rights or other restrictions on use
with or marketing of competing technologies, if any;
2.3.8
termination rights of the Parties relating to
the Project;
2.3.9
obligations of the Parties to manufacture,
market or sell implementations of the Project; and
2.3.10
any other terms or conditions that vary from the
terms and conditions set forth in this Agreement.
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THE PROJECTS
3.1
PinPoint integration with AutoClear 6040
. As a result of international market interest in a total
solution, hardware and automated threat detection software, the
Parties will jointly, and as rapidly as possible, evaluate the
interface of PinPoint into the Control Screening operating
system, collect images of live explosives, and validate the
performance of the combined solution.
3.1.1
Engineering teams from both parties agree to
work jointly and negotiate in good faith to agree upon a final
Interface Design Document.
3.1.2
The parties will establish by mutual agreement
target dates for the development of an interface protocol to
facilitate the capture, analysis and detection results from
PinPoint.
3.1.3
If available, the delivery of an AutoClear 6040
scanner to Guardian’s laboratory in Herndon for the
collection of images of non-threats and bags with guns and
ammunition.
3.1.4
If available, live explosive images will be
captured and the ground truth established on an AutoClear 6040
scanner at the TSL facility in Atlantic City. If
unavailable at the TSL facility, the parties agree to locate an
additional facility for the collection of explosive images.
3.1.5
Collect sensor-level data on all images
collected. While access to and use of sensor data is
contemplated through an additional Project, information captured
during this Project will mitigate the need to duplicate image
collection efforts on the future project.
3.1.6
Guardian shall designate Carl Smith (
carl.smith@guardiantechintl.com ) as its Project Manager
for this project, and Control Screening shall designate Scott
Kravis (skravis@controlscreening.com) as its Project Manager.
Either party may change its Project Manager and appoint a
substitute Project Manager for this Project.
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3.2
PinPoint integration with AutoClear AT
Scanner. Control Screening’s current Middle East
opportunity presents an opportunity to extend the automated
detection capabilities of PinPoint to an advanced multi-view
x-ray platform. The Parties will jointly, and as rapidly
as possible, evaluate the interface of PinPoint into the Control
Screening AT multi-view operating system, collect images of live
explosives, and validate the performance of the combined
solution.
3.2.1
Engineering teams from both parties agree to
work jointly and negotiate in good faith to agree upon a final
Interface Design Document.
3.2.2
The parties will establish by mutual agreement
target dates for the development of an interface protocol to
facilitate the capture, analysis and detection results from
PinPoint.
3.2.3
If available, live explosive images will be
captured and the ground truth established on an AutoClear AT
multi-view scanner. If unavailable at the TSL facility,
the parties agree to locate an additional facility for the
collection of images. Absent a facility for the collection
of live explosives images, the Parties agree to the development
of a limited demonstration PinPoint solution developed on images
of explosive simulants.
3.2.4
Collect sensor-level data on all images
collected. While access to and use of sensor data is
contemplated through an additional Project, information captured
during this Project will mitigate the need to duplicate image
collection efforts on the future project.
3.2.5
Guardian shall designate Carl Smith (
carl.smith@guardiantechintl.com ) as its Project Manager
for this project, and Control Screening shall designate Scott
Kravis ( skravis@controlscreening.com ) as its Project
Manager. Either party may change its Project Manager and
appoint a substitute Project Manager for this Project.
3.3
PinPoint development using raw sensor data
output and grayscale images. The Parties wish to
explore the effects of raw sensor data output and grayscale
images on the detection performance of PinPoint. In
addition, knowledge of how PinPoint processes image data could
be used to modify how the sensors capture data to maximize
automated detection capabilities.
3.3.1
As stated in the previous two Projects, raw
sensor data output and grayscale images should be collected as
part of the image collection process.
3.3.2
The engineering teams at both companies will
work closely to establish baseline performance metrics.
Tests will be established to determine the performance of
updated versions of PinPoint developed with the new data.
Adjusts to PinPoint will be determined and
implemented.
3.3.3
If necessary and valuable, adjustments to the
sensors, energy levels, configurations, and data collected will
be evaluated to potentially enhance the performance of the
scanner, and ultimately the detection software.
3.3.4
Guardian shall designate Carl Smith (
carl.smith@guardiantechintl.com ) as its Project Manager
for this project, and Control Screening shall designate Scott
Kravis ( skravis@controlscreening.com ) as its Project
Manager. Either party may change its Project Manager and
appoint a substitute Project Manager for this Project.
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3.4
Additional development and integration
opportunities . During the term of this Agreement, the
Parties may explore and assess other possible joint development
or integration opportunities consistent with the intent and
purpose of this Agreement.
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ADDITIONAL AGREEMENTS OF THE PARTIES
4.1
Logo Usage. Guardian hereby grants
Control Screening the right to use Guardian's logo, subject to
logo usage guidelines to be provided by Guardian to Control
Screening. Control Screening hereby grants Guardian the right to
use Control Screening's logo, subject to logo usage guidelines
to be provided by Control Screening to Guardian. During the term
of this Agreement, each party also agrees that it will whenever
commercially feasible promote to its customers the use of the
other party's products and services. Control Screening will also
notify Guardian from time-to-time of upcoming product needs so
that Guardian will have the opportunity to develop a technology
solution to meet Control Screening's requirements.
4.2
Publicity; Press Releases. The parties
may by mutual consent agree to issue a joint press release
describing the collaboration of the parties. In addition, each
of Guardian and Control Screening may, at such party's
discretion: (a) identify the other as a strategic partner; (b)
hyperlink from an appropriate area within its web site to the
other's home page; and (c) display the other party's logo on its
web site (in accordance with such party's guidelines for the use
of such mark). The parties shall also consult regularly during
the term of the Agreement and issue, as and when appropriate,
such further press releases and/or other publicity materials as
may be appropriate. The contents of the any press releases
issued by the parties shall be subject to the approval of each
party, which approval shall not be unreasonably withheld or
delayed.
4.3
Use of Name in Promotional Materials .
Each party shall, with prior approval of the other party (which
will not be unreasonably withheld or delayed), be permitted to
identify the other party as a strategic partner, to use the
other party's name in connection with proposals to prospective
customers, and to refer to the other party in print or
electronic form for marketing or reference purposes, provided
however that such proposals and marketing and reference
materials shall not promote any third party or the products of
any third party.
4.4
Marketing, Distribution and Support Efforts;
Promotional Activities. To the extent agreed upon by the
Parties pursuant to the applicable Project Plan or otherwise,
each of Guardian and Control Screening agree to undertake
commercially reasonable steps to actively and aggressively
promote, any products and services (including Guardian Products
and Control Screening Products) that result from the efforts
undertaken pursuant to this Agreement. Each party agrees to
serve as a reference in the other party’s proposals for a
reasonable number of contacts by prospective customers of the
other party and for industry analysts. Each party will undertake
all reasonable and diligent efforts to cause its customers,
resellers and/or licensees to install and/or deploy enhancements
or upgrades to existing products if such enhancements or
upgrades result from the efforts of the parties under this
Agreement. Under the direction of the Project Managers or the
Project Leaders identified in Sections 5.1 and 7.2 below, the
parties may by mutual agreement or plan
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undertake joint-marketing or co-marketing
programs or activities as appropriate to further the intent of
this Agreement and the alliance created hereby.
4.5
Freedom of Action . Except as
specifically provided herein or in any Project Plan, either
Party may market and offer its own or third party products or
services (through any means) which are the same as or similar to
and which are competitive with the other party's products and
services. Neither Party makes any assurances or representations
to the other in connection with any financial gain or other
benefit that may result from the activities contemplated in this
Agreement.
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PROJECT MANAGEMENT
5.1
Project Managers; Project Leaders .
Each of the parties agrees to appoint and keep in place
during the term of this Agreement one or more project managers
(individually, a "Project Manager") who will allocate such
portion of his or her working time as may be reasonably
necessary to facilitate the performance, on a timely basis and
in accordance with any particular project plan, of such party's
obligations under this Agreement or any particular project plan,
design or development specification or other document
contemplated hereby. In addition, each party will name a Project
Leader who will: (i) be the central point of contact for all
matters arising under this Agreement; (ii) oversee project
management and the resource allocations hereunder; and (iii)
have overall responsibility for the facilitation of the
performance of the obligations of the parties contemplated
hereby. The Project Leaders for each respective party shall be
the following individuals or their respective designated
successors; provided, however, that it is the intent of the
parties that the Project Leaders named below shall remain
assigned to the alliance for the entire term of this
Agreement:
CONTROL
SCREENING: Scott
Kravis, Chief Scientist
GUARDIAN:
Carl Smith,
Vice President of Operations
5.2
Meetings. The Project Leaders agree to
meet at least monthly to review the overall progress of the
projects contemplated hereunder and to provide overall
supervision and oversight. At least one-half of the meetings
will be held at Guardian, one-half at Control Screening, or some
alternative location, as the parties shall determine.
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DEVELOPMENT EFFORTS; RESOURCE COMMITMENT; EXPENSES
6.1
Cost Sharing and Reimbursement . Except
as may be provided in any specific Project Plan or as may be
otherwise agreed by the parties, each of Control Screening and
Guardian agrees that it shall be responsible for its own
expenses incurred in conjunction with this Agreement and any
attachments hereto, and with any undertakings and obligations
contemplated hereby. Notwithstanding the foregoing, in the event
development efforts are undertaken at either Guardian or Control
Screening, then the host party agrees to provide the necessary
office space at no cost to the other party.
6.2
Independent Contractors . Either party
shall have the option to utilize contractors in
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order to satisfy its obligation to supply
personnel resources to the projects contemplated hereunder, but
only to the extent and insofar as reasonably required in
connection with the performance of the obligations of the party
retaining the Contractor under this Agreement, and subject to
the further requirements and limitations set forth herein.
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DISPUTE RESOLUTION PROCESS
7.1
Initial Consultation and Negotiation . In
the event a dispute between Control Screening and Guardian
arises under the Agreement or a party's performance thereunder,
the matter shall first be escalated to Control Screening's
Project Leader and Guardian's Project Leader in an attempt to
settle such dispute through consultation and negotiation in good
faith and a spirit of mutual cooperation.
7.2
Escalation . If the Project Leaders are
unable to resolve the dispute, it shall be referred to a
conflict resolution committee comprised of one representative
designated by each party. The initial members of the conflict
resolution committee shall be:
For Control Screening:
Todd Conway, VP
For Guardian:
Bill Donovan, President & COO
7.3
Continued Performance . Except where
prevented from doing so by the matter in dispute, the parties
agree to continue performing their obligations under this
Agreement while any good faith dispute is being resolved unless
and until such obligations are terminated by the termination or
expiration of any project or this Agreement.
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OWNERSHIP; LICENSES
8.1
Ownership By Control Screening . As
between Guardian and Control Screening, Control Screening shall
own all right, title, and interest in any Intellectual Property
provided by Control Screening to Guardian under this Agreement
and owned by Control Screening as of the Effective Date or
independently developed by Control Screening during the term of
this Agreement (the "Control Screening Property"), including any
derivatives, improvements or modifications of the Control
Screening Property created by either party under this Agreement,
and Guardian shall have no ownership interest therein. Guardian
hereby irrevocably transfers, conveys and assigns to Control
Screening all of its right, title, and interest therein and in
any property owned or to be owned by Control Screening under
this Agreement. Guardian shall execute such documents, render
such assistance, and take such other action as Control Screening
may reasonably request, at Control Screening's expense, to apply
for, register, perfect, confirm, and protect Control Screening's
ownership rights set forth in this Section 8.1 and in Section 3,
and Control Screening shall have the exclusive right to apply
for or register any patents, mask work rights, copyrights, and
such other proprietary protections with respect thereto.
8.2
Ownership By Guardian . As between
Guardian and Control Screening, Guardian shall own all right,
title, and interest in any Intellectual Property provided by
Guardian to Control Screening under this Agreement and owned by
Guardian as of the
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Effective Date or independently developed by
Guardian during the term of this Agreement (the "Guardian
Property"), including any derivatives, improvements or
modifications of the Guardian Property created by either party
under this Agreement, and Control Screening shall have no
ownership interest therein. Control Screening hereby irrevocably
transfers, conveys and assigns to Guardian all of its right,
title, and interest therein and in any property owned or to be
owned by Guardian under this Agreement. Control Screen
