Teaming Agreement - Hewlett-Packard Singapore (Sales) Pte Ltd. and ImageWare Software Inc.
TEAMING AGREEMENT
BETWEEN
HEWLETT-PACKARD SINGAPORE (SALES) PTE LTD
("HP")
AND
IMAGEWARE SOFTWARE INC.
("COMPANY")
<PAGE>
TABLE OF CONTENTS
SECTIONS OF THE AGREEMENT
<TABLE>
<S> <C>
1 Definitions
2 Scope of Agreement
3 Obligations of the Parties
4 Intellectual Property/Trademarks
5 Warranty
6 Confidentiality
7 Limitation of Liability
8 Term and Termination
9 Indemnity
10 Miscellaneous
</TABLE>
Exhibits to the Agreement
Exhibit A Work to be Provided by the Parties
<PAGE>
TEAMING AGREEMENT
This Teaming Agreement ("Agreement") is made as of this day of 30th April
30th 1999 ("the Effective Date") by and between HEWLETT-PACKARD SINGAPORE
(SALES) PTE LTD, a company incorporated in the Republic of Singapore with
offices at 450 Alexandra Road, Singapore 119960 ("HP") and IMAGEWARE SOFTWARE
INC., a company incorporated under the laws of The United States Of America
with registered offices at 10883 Thornmint Rd. San Diego, CA
92127 ("Company").
WHEREAS
A. The parties desire to jointly participate in the preparation of a
proposal ("the Proposal") to be submitted to Singapore Police Force
("the Customer") in response to the Customer's Request for Proposal
("RFP") to implement the Criminal Photo Identification System Project -
CPIDS ("the Project").
B. HP, in consultation with the Sub-Contractor, intends to submit a
Proposal to the Customer. The Proposal will designate HP as the prime
contractor and the Sub-Contractor as subcontractor for part of the
products and services to be provided.
C. If the proposal is selected, HP will enter into an agreement ("Prime
Contract") with the Customer to provide the products and services as set
out in the Proposal, and HP will enter into a subcontract with the
Company for the Company to provide products and services as contemplated
in the jointly-prepared Proposal to Customer.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1 DEFINITIONS
1.1 "PROPOSAL" means the parties' response to the Request.
1.2 "REQUEST" means the request for proposal or invitation to bid
issued by Customer with respect to the Project.
1.3 "WORK" means the customized products and/or services detailed in
Exhibit A to be offered to Customer in the Proposal.
2 SCOPE OF AGREEMENT
2.1 HP and Company shall cooperate in the preparation of a Proposal to
be submitted by HP in response to the Request.
<PAGE>
2.2 Each party agrees to undertake the activities set forth in this
Agreement and in Exhibit A. Unless otherwise agreed in writing,
the parties intend for HP to be the prime contractor, and Company
to be the subcontractor to HP in accord with Section 3.3, with
respect to the Project. If the parties are selected based on the
Proposal, HP will enter into an agreement with Customer ("Prime
Contract") to provide the Work as set forth in the Proposal, and HP
will enter into a subcontract with the Company for the company to
provide products and services as contemplated in the
jointly-prepared Proposal to Customer.
2.3 Neither of the parties shall enter into any other collaboration,
teaming or similar arrangement with other individuals or entities
to provide the same or similar Work with respect to the Project as
are to be provided by the other. However, HP may enter into
agreements with other individuals or entities to serve as a
subcontractor to HP for products or services other than those to be
provided by Company.
3 OBLIGATIONS OF THE PARTIES
3.1 GENERAL.
3.1.1 The Work to be provided by each of the parties is
described in general terms in Exhibit A.
3.1.2 Each party shall appoint a representative to supervise
and co-ordinate its performance of its obligations under
this Agreement. The representative shall provide
professional and prompt liaison with the other party
and have the necessary expertise and authority to commit
the appointing party.
3.1.3 All contacts with Customer pertaining to the Request,
Proposal and Prime Contract shall be co-ordinated through
HP. Company agrees to promptly notify HP if it is
directly contacted by Customer concerning the Request,
Proposal, Prime Contract or any related matter.
3.1.4 Unless otherwise agreed by the parties in writing, each
party shall bear its own costs and expenditures incurred
in connection with the preparation, submission and
negotiation of the Proposal. Neither party shall be
liable for the costs incurred or other obligations
undertaken by the other party in connection with the
Proposal or any such negotiation.
3.1.5 Company will be available for consultation with HP
during any negotiations with Customer. Company shall,
upon HP's reasonable request, attend any negotiations
or discussions between HP and Customer which pertain
to the Proposal or Prime Contract.
3.2 PREPARATION AND SUBMISSION OF THE PROPOSAL.
3.2.1 HP will furnish Company with a copy of the Request,
including any terms and conditions required by
Customer to be incorporated into the Prime Contract.
Upon receipt of the Request, HP and Company shall agree
on the format of Company's proposal and the time frame
for its submission to HP, provided however, that HP
cannot bind the Company to terms and conditions in the
Prime Contract without the Company's prior consent.
<PAGE>
3.2.2 HP shall be responsible for the preparation, content,
evaluation and submission to Customer of the Proposal
and Prime Contract. Company will be provided with an
opportunity to review the areas of the Proposal relating
to the portions of the Work to be supplied by Company
during the preparation of the Proposal, and Company's
comments will be reviewed and taken into account by HP.
Company acknowledges that HP retains ultimate control
over the form and content of the Proposal.
3.2.3 Each party shall draw up at its own cost a proposal with
respect to its responsibilities detailed in Exhibit A
and as required by the Request. Each party shall be
solely responsible for its proposal, including the
accuracy and adequacy of designs, interface and technical
data, appropriate performance parameters, Work, support
and all other matters proposed by it and for the
completion and delivery times for the Work proposed by
it in its proposal. In addition, Company will provide
HP with any exceptions it may have to the terms and
conditions required by the Request to be incorporated
into the Prime Contract. During preparation of their
respective proposals, the parties shall meet regularly
to review and discuss progress and resolve any issues.
3.2.4 In the event that the Request calls for the Work of
Company and HP to be compatible, the parties shall
consult with one another and ensure that their respective
proposals meet such requirements.
3.2.5 Company shall submit to HP its proposal, including
prices, at the agreed time and in the agreed format,
in the form of an irrevocable offer valid until the
latest date for acceptance of the Proposal by the
Customer, or any extension thereto agreed by HP and
Customer.
3.2.6 Company shall identify in its proposal any pre-existing
proprietary rights, and any reservations or restrictions
pertaining thereto, involved in its Work. The Proposal
shall clearly indicate any areas which the parties
consider to contain pre-existing proprietary rights,
and HP shall be responsible for notifying Customer of
any reservations or restrictions pertaining thereto.
3.2.7 Each party shall use reasonable commercial efforts in the
preparation of a competitive Proposal and further shall
engage in any other reasonable activity which shall
result in the acceptance of the Proposal by Customer
and the award of the contract to HP.
3.2.8 HP shall supply a copy of the Proposal, excluding
costing data and any material covered by third party
confidentiality obligations, to Company no later than
five (5) working days after its submission to Customer.
3.2.9 If, after submission of the Proposal, Customer requires
changes to the Proposal, HP shall co-ordinate with
Company and submit any response. Company shall make
available at HP's request employees empowered to make
commitments in respect of the matters to be discussed.
3.2.10 In the event Customer requires demonstrations or
prototypes prior to Company's execution of a subcontract,
Company will provide HP, at no charge, with the resources
necessary to meet Customer's request, solely for
demonstration purposes and as is commercially reasonable,
without transfer of any right, title or interest.
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3.2.11 HP will notify Company as soon as reasonably possible
of the receipt by HP of the written acceptance or refusal
by Customer of the Proposal.
3.3 SUBCONTRACT.
3.3.1 In the event that the Customer accepts the Proposal and
approves the provision of all or part of the products
and performance of all or part of the services offered
by the Company, the parties will execute a mutually
agreed subcontract whereby Company will provide products
and services consistent with the commitments agreed upon
in the Proposal. The subcontract shall include those
provisions of the Prime Contract which by its terms are
require to be flowed down to the Company.
3.3.2 The subcontract shall be negotiated between HP and Company
in advance of negotiation and execution of the Prime
Contract with the understanding that such subcontract
terms may need to be modified as a result of subsequent
negotiations between HP and Customer. The parties will
work in good faith to include such modifications in the
subcontract.
3.3.3 In the event a mutually acceptable subcontract cannot
be negotiated and executed by the parties within a
reasonable period of time, and in any event within
thirty (30) days after notice of the award of the Prime
Contract, HP shall have the right upon ten (10) days
prior notice to Company to terminate the relationship
and to make other arrangements for the performance of
the Work to have been covered by the subcontract.
3.3.4 The Company understands and agrees that HP may enter
into other arrangements with other individuals or
entities under which such individuals or entities
would serve as subcontractor to HP for other products
and/or services under the Proposal.
3.3.5 This Agreement shall not be construed as precluding
either party from selling its standard commercially
available products and technology to competing bidders.
4. INTELLECTUAL PROPERTY/TRADEMARKS
4.1 All intellectual property rights existing prior to the Effective
Date of this Agreement shall belong to the party that owned such
rights immediately prior to the Effective Date. Neither party shall
gain by virtue of this Agreement any rights of ownership of
copyrights, patents, trade secrets, trademarks or any other
intellectual property rights owned by the other. If the parties
decide to undertake any joint development pursuant to this
Agreement, any such joint development shall be governed by a
separate joint development agreement to be negotiated in good faith
by the parties and executed prior to the commencement of any joint
development efforts.
4.2 Neither party, without the express prior written consent of the other
party, shall use the trademarks, service marks, proprietary words or
symbols of the other party.
4.3 Nothing in this Agreement shall affect either party's right to use
any trademarks, service marks or proprietary words or symbols of the
other party to properly identify the goods or
<PAGE>
services of such other party to the extent otherwise permitted by
applicable law or by written agreement between the parties.
5. WARRANTY
5.1 The Sub-Contractor warrants that it has or will have the full power
and authority to supply to HP for resale or sublicense to the
Customer as the case may be all products, services and other
assistance represented by it in the Proposal and will indemnify HP
against any actions, claims, demands, liabilities, damages, costs
and expenses arising out of a breach or claimed breach of this
warranty or arising out of the Sub-Contractor's intentional or
negligent acts or omissions under this Agreement, subject to 7.1.
5.2 The Sub-Contractor warrants that the products, services and other
assistance to be provided will be as claimed in the Proposal and
will be performed in accordance with its specifications whether
published or not.
5.3 The Sub-Contractor warrants that each hardware, software and
firmware product covered by the Agreement, is "Year 2000 Compliant".
Year 2000 Compliant Products shall be able to accurately process
date data (including, but not limited to, calculating, comparing and
sequencing) from, into, and between the twentieth and twenty-first
centuries, including leap year calculations, when used in accordance
with the product documentation provided by the Sub-Contractor,
provided that all listed or unlisted products (e.g. hardware,
software, firmware) used in combination with such listed products
properly exchange date data with it. If this Agreement requires that
specific products must perform as a system in accordance with the
foregoing warranty, then that warranty shall apply to those products
as a system. The duration of this warranty and the remedies
available for breach of this warranty shall be defined in, and
subject to, the terms and limitations of the warranty contained in
this Agreement, or of the Sub-Contractor's standard commercial
warranties if no such contractual warranty exists. Nothing in this
warranty shall be construed to limit any rights or remedies provided
elsewhere in this Agreement with respect to matters other than Year
2000 performance, except that the period of this Year 2000 warranty
shall extend through December 31, 2000, notwithstanding any other
warranty period specified in this Agreement.
6. CONFIDENTIALITY
6.1 During the term of this Agreement, either party may receive or have
access to technical information, as well as information about
product plans and strategies, promotions, customers and related
non-technical business information which the disclosing party
considers to be confidential ("Confidential Information"). In the
event Confidential Information is to be disclosed, the parties shall
first agree to disclose and receive such information in confidence.
If then disclosed, the Confidential Information shall be marked as
confidential at the time of disclosure, or if disclosed orally but
stated to be confidential, shall be designated as confidential in a
writing by the disclosing party
<PAGE>
summarising the Confidential Information disclosed and sent to the
receiving party within 30 days after such oral disclosure.
6.2 Confidential Information may be used by the receiving party only
with respect to the performance of its obligations under this
Agreement or the Proposal, and only by those employees of the
receiving party and its subcontractors who have a need to know such
information for purposes related to this Agreement, provided that
such subcontractors have signed separate agreements containing
substantially similar confidentiality provisions. The parties shall
not use the Confidential Information in violation of any federal or
state securities laws. The receiving party shall protect the
Confidential Information of the disclosing party by using the same
degree of care (but not less than a reasonable degree of care) to
prevent the unauthorized use, dissemination or publication of such
Confidential Information, as the receiving party uses to protect its
own confidential information of like nature.
6.3 The obligations stated in this Section 6 shall not apply to any
information which is:
6.3.1 Already known by the receiving party prior to disclosure.
6.3.2 Publicly available through no fault of the receiving party.
6.3.3 Rightfully received from a third party without a duty of
confidentiality.
6.3.4 Disclosed by the disclosing party to a third party without
a duty of confidentiality on such third party.
6.3.5 Independently developed by the receiving party prior to or
independent of the disclosure.
6.3.6 Disclosed under operation of law, provided however, that
upon issuance of any court or administration order or any
subpoena, the receiving party shall promptly notify the
disclosing part and shall provide the disclosing party
with an opportunity (if then available) to contest the
proprietary of such order or subpoena (or to arrange
appropriate safeguards against further disclosure by
the entity seeking to compel disclosure of such
Confidential Information.)
6.3.7 Disclosed by the receiving party with the disclosing
party's prior written approval.
7. LIMITATION OF LIABILITY
7.1 EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR BREACH OF
CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES
ARISING FROM ANY CLAIM OR ACTION HEREUNDER, WHETHER BASED ON
CONTRACT, TORT OR OTHER LEGAL THEORY.
8. TERM AND TERMINATION
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8.1 This Agreement shall come into force on the Effective Date and
shall continue (unless terminated earlier) until both parties have
fulfilled all of their obligations.
8.2 This Agreement shall automatically terminate upon the happening of
one of the following events, whichever shall occur first:
8.2.1 Written notice from Customer that it is cancelling
Request or Project.
8.2.2 Written notice from Customer of award of the Prime
Contract to a firm other than HP.
8.2.3 Written notice from Customer of award stating its
disapproval of the use of Company as a subcontractor
or direction to select someone other than Company for the
Work identified as Company's responsibility in the
Proposal or otherwise.
8.2.4 Execution of a subcontract by and between the parties for
performance of portions of the Project.
8.2.5 The expiration of a 12-month period from the date of this
Agreement; provided however, this Agreement may be
extended for one additional year by mutual agreement of
the parties to extend the Agreement.
8.2.6 The insolvency, bankruptcy, reorganization under the
bankruptcy laws, or assignment for the benefit of
creditors of either party.
8.2.7 Notice by HP that it is terminating the Agreement
pursuant to Section 3.3.3 above.
8.2.8 Mutual agreement of the parties to terminate the
Agreement.
8.3 Either party may terminate this Agreement if the other party is in
material breach of any of its obligations under this Agreement and
fails to remedy the breach for a period of thirty (30) days after a
written notice by the other party which specifies the material
breach.
9. INDEMNITY
9.1 The employees of each party shall obey all rules and regulations of
the other party while on the premises of the other party or the
Customer, provided the party's employees have been informed of such
rules and regulations.
9.2 Each party shall indemnify and hold harmless the other from and
against all claims for:
9.2.1 Damage to, or loss of use of, the property of third
parties to the extent that such damage is caused by the
negligent act or omission of the indemnifying party's
employees in connection with the performance under this
Agreement; and
9.2.2 Injury or death of any person, to the extent that such
injury or death is caused by the negligent act or
omission of the indemnifying party's employees in
connection with the performance under this Agreement.
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10. MISCELLANEOUS
10.1 NO PUBLICITY. Neither party shall publicize or disclose to any
third party without the consent of the other party, either the
terms of this Agreement or the fact of its existence and execution,
except as may be necessary to comply with other obligations stated
in this Agreement or as required by law or regulation.
10.2 NO JOINT VENTURE. Nothing contained in this Agreement shall be
construed as creating a joint venture, partnership or employment
relationship between the parties hereto, nor shall either party
have the right, power or authority to create any obligation or
duty, express or implied, on behalf of the other.
10.3 NO ASSIGNMENT. Except as provided in 2.3, neither party may assign
any rights or obligations under this Agreement without the prior
written consent of the other party.
10.4 FORCE MAJEURE. Neither party will be liable for performance delays
or for non-performance due to causes beyond its reasonable control.
10.5 NOTICES. Any notice pursuant to this Agreement shall be given in
writing and shall be deemed to have been properly given when
personally delivered or mailed by certified or registered mail,
postage pre-paid, addressed as follows:
Company : HEWLETT-PACKARD SINGAPORE (SALES) PTE LTD
Representative : Rick Ng (Project Manager)
Hewlett Packard Consulting
Company : Paul Devermann
Representative : ImageWare Software, Inc.
10.6 WAIVER. Either party's failure to exercise any of its rights under
this Agreement shall not constitute or be deemed to constitute a
waiver or forfeiture of such rights.
10.7 SEVERABILITY. If any term or provision of this Agreement is held
to be illegal or unenforceable, the validity or enforceability of
the remainder of this Agreement shall not be affected.
10.8 EXHIBITS. The following document is attached hereto as an exhibit,
the terms of which are incorporated by reference in their entirety:
Exhibit A Work to be Provided by the Parties.
10.9 PRECEDENCE. In the event of conflict between the provisions of
this Agreement and any attached Exhibit, the provisions of this
Agreement shall to the extent of such conflict take precedence.
10.10 SURVIVAL OF PROVISIONS. Notwithstanding any other provisions of
this Agreement, the provisions of paragraphs 5, 6, 7, 9, 10.1,
10.12 shall expressly survive the termination of this Agreement.
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10.11 ENTIRE AGREEMENT. This Agreement and its exhibits constitute the
entire agreement between HP and Company, and supersede any previous
or contemporaneous communications, representations or agreements
between the parties, whether oral or written, regarding the subject
matter of this Agreement. The terms and conditions of this Agreement
may not be changed except by an amendment signed by an authorized
representative of each party.
10.12 APPLICABLE LAW. This Agreement is made under and shall be construed
in accordance with the law of the Republic of Singapore. The courts
of Singapore have non-exclusive jurisdiction.
10.13 Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by
arbitration in Singapore in accordance with the Arbitration Rules of
the Singapore International Arbitration Centre ("SIAC Rules") for
the time being in force which rules are deemed to be incorporated by
reference into this clause.
[10.14 This Agreement may be executed in counterparts and by fascimile
signature. Each counterpart, including a signature page executed by
the parties, shall be an original counterpart of the Agreement, but
all such counterparts shall constitute one instrument.]
Agreed under seal, as of the date set forth above.
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
HEWLETT-PACKARD SINGAPORE COMPANY
(SALES) PTE LTD
By: /s/ Alwi Hafiz By: /s/ Paul Devermann
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Name: Mr. Alwi Hafiz Name: Paul Devermann
------------------------------ -------------------------
Title: Country Manager, HP Consulting Title: Vice President
------------------------------ -------------------------
Date: 30th April 1999 Date: April 19, 1999
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<PAGE>
EXHIBIT A
WORK TO BE PROVIDED BY THE PARTIES
Project CPIDS's key objective is to use the facial recognition technology for
the purpose of criminal investigation.
HP and Company will work together to submit a proposal of a facial
recognition technology based system to meet the Customer's requirements.
Company will be regarded as the solution and technology expert for facial
recognition solution, and will supply its facial recognition
products/components, with customized work to be performed by the Company.
These items must be integrated into the complete system to ensure a seamless
integrated solution. As the solution provider, the Company will provide the
necessary professional services to maximize the use of the facial recognition
technology.
Requirements for facial recognition will include 1-1 matching and 1-n matching
of a) scanned photo vs facial database and b) graphically constructed facial
image vs facial database. The facial database will be constructed from either
scanned photo or image captured using digital cameras.
Company will provide, either directly or through its relations with its other
partners, the expertise to incorporate value added components such as
graphics software for digitally constructing a photo-realistic facial image.
Photo aging is highly desirable. This is to replace the manual process of
photo-fitting. The constructed image will be submitted to the system for
facial recognition.
Company will work together with HP on the necessary components to enable the
database conversion (or construction) from card-based records to the proposed
system database.
Company will be the key contributor in a likely system benchmark to verify
the facial recognition accuracy. Company will be responsible for ensuring
that the system achieves the proposed facial recognition accuracy.
Company will work with HP in devising the appropriate system management
solution, using HP OpenView.
All components must be able to be integrated into a 3-tier client/server
web-based architecture. Expected operating systems for the facial recognition
engine is HP-UX 11 and/or WinNT 4.0. Expected client and application server
operating system is WinNT 4.0.
Please note, Unix will require a customized port of the technology. NT is no
problem today.