STRATEGIC ALLIANCE AND JOINT DEVELOPMENT AGREEMENTStrategic Alliance Agreement |
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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
