Teaming Agreement For Proposal

 

Teaming Agreement for Propos Proposal al THIS AGREEMENT is made and entered into [Date], by and between [Name of Prime Contractor], a corporation incorporated under the laws of the [Jurisdiction of Incorporation of  Prime Contractor (ie. the State of California)], with its principal place of business at [Address of  Prime Contractor] (the "Prime Contractor") and [Name of Team Member], a corporation

incorporated under of theplace [Jurisdiction of Incorporation Team Member(the (ie. "Team the State of California)], withthe itslaws principal of business at [Address ofof Team Member] Member"). WHEREAS:

(A)The Prime Contractor intends to submit a proposal or proposals (the "Proposal") to [Name of  Customer (ie. Party awarding contract for project)] (the "Customer"), in response to a competitive Request for Proposal No. [Number of Request for Proposal] (the "RFP") for  [Nature of Project (ie. computer hardware and/or software and related services)] (the "Project"); (B) The parties have complementary capabilities not available within their rrespective espective corporations, and it isand to their mutualthe benProposal benefit efit to actfor asthe a team and and to co-operate for the  purpose of preparing submitting Project, (C) The Prime Contractor and the Team Team Member desire to define their mutual rights and obligations during the period of preparation and submission of the Proposal and subsequently up to the time of any resulting contract awarded to the Prime Contractor consistent with laws applicable. Member, NOW THEREFORE, to effectuate the foregoing, the Prime Contractor and the Team Member, in consideration of the mutual covenants hereinafter contained, agree as follows: 1.

Objective This Agreement is for the purpose of establishing the relationship of the parties during the  period of preparation and submission of the Proposal and subsequently up to the time of  any resulting contract awarded to the Prime Contractor (the "Contract"), and to establish the responsibilities of each party for their respective portion of the Proposal and subsequent contract.

2.

Parties' Relationship (a)

The Prim Primee Contr Contract actor or,, as a prosp prospect ective ive prime prime cont contrac ractor tor,, will will subm submit it the the Prop Proposa osall in response to the RFP and will include the Team Member, as subcontractor, for  that portion of the work assigned to the Team Team Member and identified in Schedule "A" (the “Team Member’s Work”).

(b)

Each party party will will exer exertt its its "b "best est effor efforts" ts",, as jointl jointly y deeme deemed d reaso reasonabl nable, e, to to pro produc ducee the Proposal which will cause the selection of the Prime Contractor as a prime contractor for the Project and the acceptance of the Team Member as the

 

-2subcontractor for the work assigned to the Team Member herein, and each party will continue to exert its "best efforts" toward this objective throughout any an y and all negotiations concerning a Contract or o r subcontract(s) which may follow the submission of the Proposal. (c)

It is is under understo stood od that that the Pr Prime ime Contra Contracto ctorr will will,, in the Propos Proposal al which which the partie partiess submit and in all discussions with respect thereto, identify the Team Member as its team member, and will state in such Proposal or discussions the relationship of  the parties and the spheres of endeavour en deavour and responsibility of each party.

(d)

Neithe Neitherr part party y shal shalll dema demand nd compe compensa nsatio tion n of any kind kind from from the other other during during the  period up to the award of the Contract, or after the award of the Contract, unless otherwise agreed in writing. Each party will bear all costs, risks and liabilities incurred by it arising out of its obligations and a nd efforts under this Agreement. Such liability includes, but is not limited to, all damages, costs and expenses claimed from or incurred as the result of any an y claim or proceeding made against a party with respect to the infringement of any an y patent, copyright, trademark, trade secret or other proprietary right of any third party.

(e)

Each party party shall shall furnis furnish h to to the the other other such such co-oper co-operati ation on and and assi assista stance nce as as may may be be reasonably required hereunder; provided, however, that the parties, as between themselves, shall be deemed to be independent contractors, and the employees of  one shall not be deemed d eemed to be the eemployees mployees of the other.

(f) (f)

This This Agr Agree eeme ment nt is is not not inte intend nded ed by the the part partie iess to cons consti titu tute te or or crea create te a joi joint nt venture, partnership, or formal business organization of any kind, other than a contractor team arrangement and the rights and obligations of the parties shall be only those expressly stated in this document. None of the parties shall have the authority to bind the other except to the extent authorized herein. The Prime Contractor and the Team Member shall remain as independent contractors at all times and neither party shall act as the agent for the other.

(g)

Nothin Nothing g in this this Agreem Agreement ent shall shall be const construe rued d as provid providing ing for the share share of of profi profits ts or losses arising out of the efforts of either or both of the parties.

(h)

The partie partiess here hereunde underr desi designat gnatee one one or more more indi individu viduals als within within their their own organization as their representative(s) responsible to direct performance of the  parties' necessary functions (including receipt and protection of proprietary information). Such representative(s) shall have primary responsibility to effectuate the requirements and responsibilities of the parties under this Agreement. Forr Pr Fo Prime Cont Contrrac acttor: or:

[Na Name me,, tit title le an and d add addrres esss of of Pr Prime ime Con Conttra ract ctor or''s Representative]

For Team Member:

[Name, title and address of Team Member's Representative]

 

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3.

(i)

Each party party will will part partici icipat patee ex exclu clusiv sively ely with with tthe he othe otherr as as to to tthe he Team Member’ Member’ss Work. Consequently except as provided for in paragraph j, the parties agree that they will not actively solicit participation or participate in other team efforts that are competitive to this Agreement nor compete independently for Project work for  the duration of this Agreement. The term "active participation", as used herein, includes (but is not limited to) the interchange of technical or marketing data with competitors.

(j)

Nothin Nothing g in in tthis his Agreem Agreement ent shall shall limit limit or restri restrict ct the rights rights of the partie partiess from from quoting or selling to others not party to this Agreement their (a) standard commercial products and services upon demand and (b) other previously-offered  products and services that are not unique to the Proposal contemplated by this Agreement and (c) providing technical information concerning products falling within categories (a) and (b) preceding. Nothing herein shall preclude the parties from marketing or selling their standard commercial products and services to any third parties for purposes unrelated to the Proposal or to the Project during the term of this Agreement.

Proposal/Post-Proposal Proposal/Post-P roposal Activities (a)

The partie partiess will will fur furnis nish h to to tthe he Prime Prime Contra Contractor ctor,, for for inc incorp orporat oration ion into into tthe he Proposal, all Proposal material pertinent to the work assigned to the respective  parties as defined in Schedule "A", including but not limited to, manuscripts, art work, and cost and/or pricing data, in accordance with the requirements of the RFP.. The parties will also furnish qualified personnel who will co-operate in RFP drafting the Proposal. The Team Member will provide a firm price and  performance commitment to the Prime Contractor for the Team Member's portion of the work.

(b)

The Prime Prime Cont Contrac ractor tor will will have have the the fina finall de decis cision ion on the the form form and content content of all all material submitted to the Customer including, but not limited to, both technical and pricing aspects of the Proposal. Prior to submission of the Proposal to the Customer the Prime Contractor will afford the Team Team Member the opportunity to view the form and the content of the Team Member's portion of the Proposal, to ensure that the Team Member's participation is accurately and adequately  portrayed. Any inaccuracies or inadequacies will be b e corrected by the Team Team Member and submitted to the Prime Contractor immediately. immediately. The Prime Contractor will subsequently provide to the Team Member, Member, as a minimum, that  portion of the technical contents of the Proposal submitted to the Customer which includes the effort to be b e performed by the Team Member as set out in the Team Member’s Work, Work, and will advise the Team Member of the price proposed to the Customer for the entire Project.

(c)

Should Should a dispu dispute te arise arise between between the Prime Prime Cont Contrac ractor tor's 's and the Team Member Member's 's  personnel working on the Proposal involving their respective limitations, or the working relations between their organizations, then the same personnel (including the designates under paragraph h) will make every effort to resolve the dispute. When such resolution cannot be achieved, the dispute will be referred to the

 

-4appropriate senior management of the Prime Contractor and of the Team Member, respectively.. These individuals will take whatever action may be necessary to respectively reach an agreement which is acceptable to both parties. (d)

The Team Member Member will will assu assure re availabi availabilit lity y of man managem agement ent and techni technical cal  personnel to assist the Prime Contractor in any discussions and negotiations with the Customer directed toward obtaining the award of a contract.

(e) (e)

In the the even eventt the the Prim Primee Cont Contra ract ctor or shou should ld be be requ reques este ted d or is is pres present ented ed the the opportunity to make presentations whether orally or by written communications to the Customer concerning the Team Member's portion of the Project, the content of  the presentations thereof shall be made known kno wn to the Team Member. When requested to do so by the Prime Contractor, the Team Team Member will support such  presentations as they relate to the Team Member's area of work.

(f) (f)

Al Alth thoug ough h the Pri Prime me Cont Contra ract ctor or is is co cont ntem empl plate ated d as the the prim primee inte interf rfac acee with with the the Customer, it is recognized that the Team Member may have continuing relations with the Customer and may be the recipient of inquiries concerning the subjectmatter of this Agreement. Therefore, any cogent communications invited by the Customer directly with the Team Member concerning any an y matter involving this Agreement, the Project or the Proposal shall not be deemed to be a breach of this Agreement, provided the Prime Contractor is notified of such contact by the Team Member prior to the contact where possible or, where not possible, subsequently in a timely manner manne r.

4.

Contract-Subcontract Contract-Subcont ract Award (a)

In the the even eventt that that the the Prop Proposa osall ssubm ubmitt itted ed tto o the the Cust Customer omer under under tthe he term termss of this this Agreement results in a Contract being awarded to the Prime Contractor, the Prime Contractor shall award a subcontract to the Team Member under mutually agreeable terms and conditions for the Team Member’s Work Work (the "Subcontract").

(b)

In the the even eventt negot negotiat iation ionss betwe between en the the Prim Primee Cont Contract ractor or and and the the Cust Customer omer result result in an increase or decrease in the Team Member’s Work, Work, the required additions or  deletions shall be deemed to be made to Schedule "A". The Team Member agrees that the Prime Contractor shall negotiate the Contract provided, however, that  prior to agreeing to any provisions in the Contract that change the responses in the Proposal or agreeing to additional terms that affect the Team Team Member's obligations, the Prime Contractor shall consult with and obtain the Team Team Member's approval.

(c)

In the the even eventt the the Prime Prime Contra Contracto ctorr sshoul hould d be directe directed d by the Custom Customer er to to (i) (i) place place all or a portion of the Team Member's Work Work with another source, or (ii) award all or a portion po rtion of the Team Member's Work Work on a competitive basis, promptly upon discovery both the Prime Contractor and the Team Member will take all reasonable steps to preclude, or reverse, the Customer's position and seek to have the parties' teaming arrangement remain intact. If, after all reasonable reasonab le efforts, the Customer is still unwilling to accept the teaming arrangement and an d has so officially

 

-5notified the Prime Contractor, then it is agreed that the Prime Contractor shall have no further obligations to the Team Member, as to the affected work, except for the continued protection of proprietary information, as detailed below. T Team eam Member may contact Customer independent from Prime Contractor to verify accuracy of Prime Contractor's information. 5.

Rights in Inventions Inventions shall remain the property of the originating party. In the event of joint inventions, the parties shall establish their respective rights by negotiations between them.

6.

Proprietary Information (a)

During During the term term of this this Agreem Agreement ent,, the the parti parties es hereto hereto may exchang exchangee propr propriet ietary ary and/or confidential information, including but not limited to, performance, sales, financial, contractual, and technical data. Such information must be in writing and clearly marked on each page as proprietary or confidential. All such information will be deemed to be treated by the parties as proprietary and confidential.

(b)

The Prime Prime Cont Contrac ractor tor and the Team Member Member mutuall mutually y agre agreee that that they they shall shall not at any time divulge any matters relating to the Proposal or the Project which may  become known to them by reason of its (their) involvement in the Proposal and shall be true and faithful to each ea ch other in all dealings and transactions relating to this Proposal. The parties herein agree that they will not, together or o r alone, use for  their or its own benefit or purposes or for the benefit or purpose of any other   person, firm, corporation, association or other business entity, any trade secrets, any information of a proprietary or confidential nature or plans p lans belonging to or  relating to the affairs of the Prime Contractor or th thee Team Team Member either during du ring or after the Proposal has been submitted.

(c)

The receiv receiving ing party party,, during during the term term of this this Agreem Agreement ent and for five five (5) (5) year yearss thereafter, shall hold such information in confidence, shall use such information only for the purposes of this Agreement and shall not disclose such information to any third party without prior written approval of the other party, party, except that information necessary to perfect the Prime Contractor's Proposal under this Agreement may be disclosed to the Customer. Customer.

(d)

Neithe Neitherr party party shall shall be be liabl liablee ffor or the the inadv inadvert ertent ent or acci accident dental al disc disclos losure ure of   proprietary or confidential information if such disclosure occurs despite the exercise of the same degree of care as such party normally takes to preserve its own such proprietary or confidential information.

(e)

These These restr restrict iction ionss on the use or disc disclos losure ure of info informa rmatio tion n marke marked d as propri proprietar etary y or  or  confidential shall not apply to information that: (i) (i)

was was known known to the the rece receiv ivin ing g par party ty at th thee tim timee of of di disc sclo losu sure re;;

 

-6(ii)) (ii

subseq subsequent uently ly is develo developed ped by the rec recipi ipient ent,, indep independe endent nt of the inform informati ation on transmitted by the disclosing party;

(iii) (ii i)

becomes becomes known known to the receiv receiving ing party party from from a source source other other than than the disclosing party without breach of this Agreement;

(iv)) (iv

has been been publis published hed or or is otherw otherwise ise in the the publi publicc domain domain without without breach breach of  of  this Agreement, or 

(v) (v)

is dis discl clos osed ed wit with h the the prio priorr writ writte ten n appr approva ovall of the the oth other er par party ty..

(f)

Any inform informati ation, on, other other than than prop proprie rietar tary yo orr conf confide identi ntial al inform informati ation on iden identif tified ied as  provided above, shall not be restricted by either party as to the other party's use thereof.

(g)

No lice license nse to the other other part party y, under under any tradem trademark ark,, paten patentt or or copy copyrig right, ht, or  applications which are now or may thereafter be owned by such party, is either  granted or implied by the conveying conv eying of information to that party. None of the information which may be submitted or exchanged exchang ed by the parties shall constitute any representation, warranty, warranty, assurance, guarantee or inducement by either party to any of the other with respect to the infringement of trademarks, patents, copyrights, or any right of privacy, or other rights of third persons.

(h) (h)

7.

Upon Upon the the exp expir irat atio ion n of the the agr agreem eemen entt and and subj subject ect to ong ongoi oing ng Cont Contra ract ct requirements, each party shall return to the other party the proprietary and confidential information including all copies thereof or certify that all information and all copies have been destroyed.

Termination of Agreement (a)

This This Agreem Agreement ent,, wh which ich is eff effect ective ive upon the date date stipu stipulat lated ed on the fir first st page, page, shall shall automatically expire and be deemed terminated effective upon the date of the happening or occurrence of any one of the following events or conditions, whichever shall first occur: (i (i))

Noti Notice ce of of the the can cance cell llat atio ion n of the the RFP RFP by by the the C Cus usto tome merr.

(ii)) (ii

The receipt receipt by the Prime Prime Contra Contracto ctorr of of writ written ten notice notice from from the the Custom Customer  er  that it will not award the Prime Contractor the Contract for this Project.

(iii) (ii i)

The recei receipt pt of of writt written en notic noticee from from the the Cust Customer omer that that it has awarde awarded d the the Contract for this Project to someone other than the Prime Contractor.

(iv)) (iv

The recei receipt pt of offic official ial Cust Customer omer notice notice that that the the Team Team M Membe emberr will will not not be approved as a subcontractor under a contract to the Prime Contractor for  Team Member’s Work, Work, subject to the conditions contained in paragraph c  herein.

 

-7(v)

Award ward of a Subc Subcont ontract ract by the Prime Prime Cont Contrac ractor tor to the Team Member Member for  its designated portion of the Project.

(vi)) (vi

Mutual Mutual agreeme agreement nt of of the the Prim Primee Contr Contract actor or and and the the Team Member Member to terminate the agreement.

(vii) (vi i)

The expi expirat ration ion of of a two-y two-year ear perio period d commen commencin cing g on the the date date of this this Agreement except that if the Customer has awarded a Contract to the Prime Contractor prior to such date, this Agreement shall be extended for  a reasonable time to permit negotiations of a subcontract as intended by this Agreement.

8.

(viii)) (viii

The insolvency insolvency,, bankruptcy bankruptcy,, reorganizat reorganization ion under bankruptcy bankruptcy law law, or  assignment for the benefit of creditors by any party. party.

(ix)) (ix

The Custom Customer er subs subseque equently ntly modifi modifies es the the requi requireme rements nts of the RFP so materially that either party deems it in its best business interest to withdraw from further participation in any undertaking to provide the Project.

(x)

As per paragraph b herein, the Prime Contractor so materially modifies the Team Member's proposal that the Team Member deems it in its best  business interest to withdraw from any further participation in the undertaking to provide the Project.

(xi) (xi)

The The provi provisi sions ons for for term termin inat atio ion n as con contai taine ned d in para paragr graph aph 4, ContractSubcontract Award.

Security: Customer Classified Information Should access to Customer's classified information be required in the preparation p reparation of their  respective portions of the Proposal, or during negotiation of o f the contract or for the  performance of the Team Member’s Work, Work, both the Prime Contractor and the Team Member shall meet the security clearance requirements of the Customer as set forth in government laws and regulations. The Prime Contractor and the Team Member agree that all of their personnel who, pursuant to this Agreement, Agreement, will have access to such classified information, shall have an appropriate personal security clearance, which is still in effect,  prior to being accorded access to such information.

9.

Publicity The parties shall not issue a news release, public announcement, advertisement, or any other form of publicity concerning their efforts in connection with this Agreement without obtaining prior written approval from the other party. In the event such approval is granted, any resulting form of publicity shall give full consideration to the role and contributions of the other party.

 

-810.

Dealings with Customer The contents of this Agreement may be made known to appropriate Customer  representatives by any of the parties, if requested by the Customer. Nothing contained herein is intended to affect the rights of the Customer to negotiate directly with any one of the parties hereto on any an y basis the Customer may desire. The T Team eam Member agrees herein that, notwithstanding the provisions contained in paragraph f , it will notify the Prime Contractor immediately if the Customer has indicated a desire to negotiate any part of the Proposal directly. directly.

11.

Notices All notices, requests, demands or other communications required by this Agreement or  desired to be given or made by either of the parties to the other hereto shall be given or  made by personal delivery or by mailing the same in a sealed envelope, postage prepaid, registered mail, return receipt requested, and addressed to the parties at their respective addresses set forth above or to such other address as may may,, from time to time, be designated by notice given in the manner provided in this paragraph. Any notice or  communication mailed as aforesaid shall be deemed to have been given and received on the third business day next following the date of its mailing. Any notice or writing delivered to a party hereto shall be deemed to have it been given and received on the day it is delivered, provided that if such day da y is not a business day, then the notice or  communication shall be deemed to have been given and received on the business day next following such date.

12.

Assignment This Agreement may not be assigned or otherwise transferred by either party in whole or  in part without the express prior written consent of the other party, party, which consent shall not be unreasonably withheld. The foregoing shall not apply in the event any party shall change its corporation name or merge with another an other corporation.

[NAME OF PRIME CONTRACTOR]

Per:  Name: Title:

[NAME OF TEAM MEMBER]

Per:  Name: Title:

 

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Schedule “A” Description of Work Assigned to Parties

Team Member’s Work:

[Describe Team Member's Work]

Prime Contractor’s Work:

[Describe Prime Contractor's Work] Work]