ALLIANCE AGREEMENT Between American K-9 Bomb Search, Inc., Inc. and Labwire, Inc.
Exhibit 10.14
Agreement with
K-9 Bomb Search
Between
American K-9 Bomb Search, Inc., Inc. and Labwire, Inc.
This
Agreement is entered into on this 1st day of February ,
2005 by and between Labwire, Inc. (hereinafter “Labwire”), and American K-9
Services, Inc. (hereinafter “K-9”).
WHEREAS
K-9 provides security and investigative, dog related services all of which are
hereafter referred to, both singularly and collectively, as the “Security
Services” and maintains a Web site at ▇▇▇.▇-▇.▇▇▇ (which site and any successor
sites shall be referred to as the “K-9 Site”).and
WHEREAS
Labwire desires to promote K-9 as the preferred provider of Security Services to
its customers; and
WHEREAS
Labwire provides certain automated program management services and related
products referred to, both singularly and collectively, as the “DAT Services”
and maintains a Web site at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇ (which site and any successor or
affiliated sites shall be referred to as the “Labwire Site”); and
WHEREAS
K-9 desires to promote Labwire as a preferred provider of DAT Services to its
customers; and
WHEREAS
K-9 and Labwire desire to provide incentives to each other for the referral of
Customers and the resulting revenues from such Customers; and
NOW,
THEREFORE, Labwire and K-9, in consideration of the mutual promises and
undertakings herein recited and intending to be legally bound, agree as
follows:
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1.
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Definitions. For
purposes of this Agreement, the following definitions will
apply:
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a.
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"Referral
Customers" will mean end-users who purchase Security Services from K-9
after being referred to the sales, marketing and customer service efforts
of K-9 after initial contact by
Labwire.
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b.
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“Service
Agreement” will mean resulting executed contracts between K-9 and Referral
Customers under which K-9 agrees to provide the BI Services and deliver
said products and services.
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c.
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“Security
Services” will mean the products and/or services provided by K-9 under
this Agreement.
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d.
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“DAT
Services” will mean the products and/or services provided by Labwire under
the Agreement.
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2.
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Term. The term of this
Agreement will commence on the date first set forth above and will
continue in effect for an initial term of two (2) years, unless earlier
terminated pursuant to the terms and conditions of this
Agreement.
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3.
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Appointment. Because K-9
wishes for Labwire to be, and Labwire wishes to be, an independent sales
agent and distributor for certain K-9 products, for the term of this
Agreement, K-9 designates and appoints Labwire, on a world-wide basis, as
(a) its non-exclusive independent sales representative to market Security
Services.
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4.
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Responsibilities of K-9.
K-9 agrees to perform the following responsibilities in connection with
this Agreement:
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a.
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Subject
to the terms and conditions of this Agreement, all determinations
concerning the terms and conditions of Security Services offered, will be
made by K-9.
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b.
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K-9
will be responsible to provide the Security Services in accordance with
the executed Service Agreements that it obtains with Referral Customers.
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c.
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K-9
will make available to Labwire, at no cost to Labwire, service briefs,
product brochures, and such other sales aid materials (collectively,
“Marketing Materials”) as K-9 reasonably determines appropriate to assist
Labwire in the marketing of the Security Services. K-9 grants to Labwire
the right to reproduce and distribute the Marketing Materials in support
of its sales efforts under this
Agreement.
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d.
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K-9
and Labwire may distribute a joint press release (in form acceptable to
both parties) announcing this Agreement, and such other press releases as
the parties may agree upon from time to time to promote the sales of
Security Services through Labwire.
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e.
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K-9
will provide Labwire personnel with such training as Labwire may
reasonably request to enable it to effectively market the Security
Services. Each party will bear its own costs and pay for its own expenses
in providing or receiving the
training.
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f.
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K-9
will pay commissions to Labwire in accordance with the provisions of
Section 9 of this Agreement.
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g.
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K-9
will promote Labwire as a recommended and preferred provider of DAT
Services.
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5.
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Responsibilities of
Labwire. Labwire agrees to perform the following responsibilities
in connection with this Agreement.
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a.
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As
Independent Sales Representative of Security Services to Referral
Customers.
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i.
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In
soliciting orders for Security Services on behalf of K-9, Labwire will
provide service and product descriptions only as are contained and
approved by K-9 in its current published sales literature, which will be
provided to Labwire by K-9. When K-9 sales literature is
changed, Labwire will be allowed continued use of its existing stock of
related marketing materials for a period of sixty days following receipt
of notice of the changes.
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ii.
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Labwire
will not make any other representations, warranties, or commitments
relative to BI Services or negotiate any K-9 contract terms, conditions or
prices.
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iii.
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Labwire
will advise K-9 of the prospective Referral Customer to establish
appropriate sales contacts, contract documentation, and customer service
to be completed through K-9.
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b.
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Marketing
Materials.
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i.
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Labwire
may prepare marketing materials (such as overheads, presentations,
brochures, and trade show information) for use in marketing the Security
Services. These marketing materials, with exception of pricing
information, will be subject to the approval of K-9 prior to use.
Proposals to potential customers will not be considered to be marketing
materials.
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6.
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Expenses. Except as
otherwise set forth in this Agreement, each party will be individually and
solely liable for its own costs involved in marketing Security
Services.
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7.
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Billing and
Collection. Labwire will perform all billing and
collection functions with regard to Referral Customers under this
Agreement. All orders will be placed directly with Labwire and
K-9 and Labwire will each invoice their own Customers directly for payment
for their respective services, unless otherwise arranged on a customer by
customer basis. K-9 acknowledges and agrees that Labwire is not
responsible for any amounts due to K-9 for Security Services that K-9
sells to its Customers unless Labwire is a party to the transactions
between K-9 and those Customers. Labwire acknowledges and agrees that K-9
is not responsible for any amounts due to Labwire for DAT Services that
Labwire sells to its Customers unless K-9 is a party to the transactions
between Labwire and those Customers. The terms and conditions
of any commercial transactions between K-9 and its Customers and Labwire
and its Customers are separate agreements between K-9 and Labwire and
their respective Customers and such contracts are independent of this
Agreement.
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8.
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Customer Orders and
Payment. All orders will be submitted by Referral
Customers directly to K-9 and will be subject to acceptance in writing by
K-9 under applicable Service Agreements with said Customers, it being
expressly understood and agreed that K-9 may, refuse acceptance of any
order if, in K-9’ reasonable determination, acceptance of such order would
have a detrimental effect on K-9’ business. Each order submitted pursuant
hereto will constitute an offer by a Customer to purchase the Security
Services therein described and, upon acceptance by K-9, will give rise to
a contractual obligation of K-9 to distribute the Security Services to the
Customer, and to charge such Customer for said Security Services ordered
on the terms and conditions set forth in this Agreement. K-9 will provide
approved standard form contracts reflecting appropriate billing and
payment arrangements along with required terms and conditions pertaining
to such Customers. The contract terms and conditions contained in Service
Agreements for Referral Customers will not be negotiable between such
Customers and Labwire or K-9.
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9.
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Commissions on Referral
Customers. K-9 agrees to pay Commissions to Labwire of five percent
(05%) of revenue received by K-9 from Referral Customers, or such other
amount specific to a Referral Customer as is mutually agreed by both
parties hereto in writing. Labwire agrees to pay Commissions to
K-9 of five percent (5%) of
revenue:
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a.
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Referral
Customers shall be submitted by Labwire and accepted by K-9, or vice
versa,
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b.
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Commissions
will be deemed earned by either party only when all of the following
criteria are fulfilled:
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i.
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The
Referral Customer and K-9 have entered into an agreement within one
hundred eighty (180) days of the referral date (“Referral Date”) reflected
in the specific Customer Referral Form for the prospective customer’s
purchase of K-9 products duly executed by both parties to the contract.
Commissions will be paid on the initial and all subsequent orders for term
of the contract between K-9 and the Referral Customer even if this
Agreement terminates or expires.
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ii.
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The
Product has been delivered to and paid for by the Referral Customer to
K-9. K-9 must employ reasonable commercial efforts to collect
from delinquent Referral Customer accounts. Commission will not be paid on
bad debts or amounts deemed by K-9 to be
uncollectible.
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c.
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Commissions
will be reported to and payable to either party thirty (30) days after the
end of the month in which the commission is
earned.
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d.
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Commissions
will be paid net of taxes, fees or other pass-through charges and subject
to the provisions of this
Agreement.
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e.
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Except
as otherwise specifically agreed, the payment of commissions under this
Agreement will constitute full compensation for services performed and
expenses incurred by either party under, or in any way connected with its
role as independent sales representative or
distributor.
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f.
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If
this Agreement is terminated, both parties will be entitled to receive
commissions on Referral Customers which were submitted by either party
prior to the date of termination, which are accepted by K-9 or Labwire
within thirty (30) days after such date of
termination.
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g.
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K-9
may in its sole discretion reject any Referral Customer if it reasonably
determines that acceptance of such Customer (1) would be detrimental to
its business (i.e.: such customer is a competitor, or has bad credit); or
(2) would violate certain restrictions defined by K-9 company policies for
qualifying new customers; or, (3) would violate federal, state, or local
laws; or (4) would violate K-9’s contractual obligations with other
parties such as government agencies or data suppliers. K-9 will provide
Labwire with its rules for qualifying new customers, and will notify
Labwire as to any contractual obligations that would restrict Labwire’s
sales efforts. This information will be updated when changes are made to
it.
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h.
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K-9
shall keep full and accurate records related to Referral Customers to
enable it to accurately report the commissions earned by Labwire each
month. Labwire shall have the right, upon reasonable prior written notice,
to audit the books, records and accounts of K-9 relating to the Referral
Customers and Security Services purchased by such Customers for the
purposes of verifying compliance with this Agreement The expenses of such
audits shall be borne by Labwire. Audits shall be limited to records
specifically related to this Agreement. Audits shall occur no more often
than three (3) times per calendar year and no more often than two (2)
times per any quarter.
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i.
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Labwire
will comply with reasonable procedures and guidelines established by K-9
for the use of consumer information ad will comply by all applicable
federal, state, and local laws and regulations. K-9 has the
right to require reasonable evidence of Labwire’s compliance with
applicable laws and K-9’s guidelines for use of consumer information
products. Labwire shall fully cooperate with such inquiries or
audit requests of K-9 to the extent they are reasonable and do not require
Labwire to violate any law or confidentiality obligation. Upon
reasonable advance notice and during regular business hours, K-9 shall
have the right at its own expense to conduct periodic audits of Labwire’s
compliance with its obligations under this Agreement and with applicable
laws. Audits shall be limited to records specifically related to this
Agreement. Audits shall occur no more often than three (3) times per
calendar year and no more often than two (2) times per any quarter
thereof.
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j.
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Any
violations discovered as a result of such audits may be cause for
immediate action by either party, including but not limited to,
termination of this Agreement.
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10.
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Indemnification.
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a.
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Labwire
will indemnify and hold K-9 harmless from and against any and all third
party claims and liabilities resulting therefrom, together with reasonable
attorney’s fees and costs incurred in connection therewith, resulting
from: (a) any unauthorized representations, warranties or commitments made
by Labwire with respect to the Security Services; or (b) any breach by
Labwire of its obligations under this Agreement; or (c) Labwire’s
violation of applicable laws.
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b.
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Except
for liabilities for which Labwire owes K-9 an indemnification obligation
as stated in 10(a), K-9 will indemnify and hold Labwire harmless from and
against any and all third party claims and liabilities resulting
therefrom, together with reasonable attorney’s fees and costs incurred in
connection therewith, resulting from (1) any provision of Security
Services to any Referral Customer (2) breach by K-9 of its obligations
under this Agreement; or (3) K-9’s violation of applicable
laws.
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c.
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A
party's duty to indemnify the other under this Agreement is conditional
on: (a) the party seeking indemnification providing the indemnifying party
with prompt notice of any claim, demand, action, liability, suit or damage
for which indemnification is sought; and (b) the party seeking
indemnification affording the indemnifying party with the opportunity to
handle the defense of the matter for which indemnification is
sought.
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11.
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LIMITATION
OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR
ANY LOST PROFITS OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR
LOSS.
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12.
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Termination.
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a.
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Either
party will have the right to terminate this Agreement at any time upon
ninety (90) days advance written notice. Either party will have
the right to terminate this Agreement for Good Cause upon ten (10) days
advance written notice, unless the other party cures the material breach
stated for termination in such notice within ten (10) days of its receipt
of such notice. "Good cause" will include, but not necessarily be limited
to: (i) material breach of this Agreement by the other party; or (ii) the
termination or suspension of business by the other party; or (iii)
insolvency of the other party; or (iv) the other party becoming subject to
bankruptcy or insolvency proceedings or to direct control by a trustee,
receiver or similar authority. Good cause will also include modification
by K-9 of its distribution methods or discontinuance of the sale of the
Security Services, in which event this Agreement will be terminated upon
ninety (90) days written notice by K-9 to
Labwire.
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b.
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Termination
of this Agreement will not constitute a waiver of any rights or remedies
at law or in equity.
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c.
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Upon
termination of this Agreement, all pre-existing Referral Customer Service
Agreements will remain in effect with K-9 per their terms. All
obligations to pay Referral Fees that were incurred prior to any
termination of this Agreement shall survive termination of the
Agreement.
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d.
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Termination
of this agreement becomes effective upon discontinued integration and
services accessed through integration notwithstanding the written notice
provisions in 6.1 above. Referral Fees that were incurred
during the integration shall survive termination of the Agreement and the
discontinuation of the integration.
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e.
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The
obligation to pay commissions to Labwire or K-9 shall survive the
expiration or earlier termination of this
Agreement.
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13.
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Confidential Information.
Proprietary or confidential information disclosed by the parties,
including but not limited to the existence and the terms of this
Agreement, technological information about their respective Web sites,
business plans, financial information, customer information, and pricing
and sales information (“Confidential Information”) shall not be disclosed
to any third party, other than to employees, agents, and consultants who
need to know such Confidential Information and who shall be advised they
are subject to these restrictions regarding Confidential Information.
Recipient shall be responsible for any wrongful disclosure of Confidential
Information made by any third party to whom Recipient revealed the
Confidential Information. The foregoing obligations shall not apply with
respect to any Confidential Information that: (a) is or becomes publicly
known through no wrongful act or omission of Recipient; (b) was rightfully
known by Recipient before receipt from the disclosing party; (c) becomes
rightfully known to Recipient without confidential or proprietary
restriction from a source which does not owe a duty of confidentiality; or
(d) is independently developed by Recipient without the use of, or
reference to, the Confidential Information. Recipient may
disclose Confidential Information to the extent disclosure is required by
law or court order; provided, however, that to the extent possible, prior
to any such compelled disclosure, Recipient shall give the disclosing
party reasonable advance notice of any such disclosure so the disclosing
party has an opportunity to lawfully prevent or limit the scope of such
disclosure. This Section shall survive the termination of this
Agreement.
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14.
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Relationship of the Parties.
The relationship established by this Agreement is that of
independent contractors. No partnership, employment, franchise, reseller,
joint-venture or such other relationship is established by this
Agreement. Neither party has the authority to incur obligations
on behalf of the other; and, no community of interest is established among
the parties by this Agreement. Although the parties hereto will
collaborate to introduce new Customers to each other, each party will
conduct its respective business at its own initiative, responsibility and
expense.
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15.
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General.
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a.
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Agreement Modification.
Except as expressly allowed herein, the terms of this Agreement may only
be modified or waived by written agreement of both parties. Any waiver of
any of the terms provided for herein is only for the particular matters
specified and will not constitute a waiver of any of the other terms of
this Agreement, nor will waiver of a provision in one instance prevent
enforcement of that provision on any other occasion. K-9 may, at any time
and at its sole discretion, and with at least 30 days prior written notice
to Labwire, discontinue any of the Security Services, change the terms and
conditions of its product and service agreements, and change service and
product literature and any other service and product sales aids. K-9 will
notify Labwire of any such changes. Such changes will not affect current
Customer agreements except to the extent permitted in such
agreements.
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b.
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Force Majeure. Neither
party will be liable in the event that its performance of this Agreement
is prevented, or rendered so difficult or expensive as to be commercially
impracticable, by reason of an Act of God, labor dispute, unavailability
of transportation, goods or services, governmental restrictions or
actions, war (declared or undeclared), or other hostilities, or by any
other event, condition or cause which is not foreseeable on the date of
this Agreement and is beyond the reasonable control of the party. It is
expressly agreed that any failure of the United States Government to issue
a required license for the export of any K-9 Product ordered by Labwire
hereunder will constitute an event of force majeure. In the event of
non-performance or delay in performance attributable to any such causes,
the period allowed for performance of the applicable obligation hereunder
will be extended for a period equal to the period of the delay. However,
the party so delayed will use its best efforts, without obligation to
expend substantial amounts not otherwise required under this Agreement, to
remove or overcome the cause of delay. In the event that the performance
of a party is delayed for more than six (6) months, the other party will
have the right, which will be exercisable for so long as the cause of such
delay will continue to exist, to terminate this Agreement without
liability for such termination.
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c.
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Assignment. Neither
party may assign this Agreement nor subcontract or delegate its
responsibilities without the express written consent of the other whose
consent shall not be unreasonably withheld. Any such assignment or
subcontract will be void and will constitute a material breach and default
under this Agreement.
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d.
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Notice. Except as
otherwise specified herein, any notice to be given under the terms of this
Agreement will be in writing and will be either hand delivered or sent by
overnight courier or United States mail, postage and delivery prepaid, to
the parties at the addresses specified in this Agreement, or such other
location as the other parties may provide each other from time to time by
written notice. Notice will be deemed effective upon
delivery.
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e.
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Governing Law. This
Agreement will in all respects be governed by, and enforced and
interpreted in accordance with, the laws of the State of Oklahoma, except
with respect to its rules relating to conflicts of
laws.
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f.
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Severability. In the
event that one or more of the provisions contained in this Agreement will
for any reason be held to be invalid, illegal or unenforceable in any
respect, this Agreement will be enforced to the maximum extent
possible.
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g.
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Third Party
Beneficiaries. There are no third party beneficiaries to
the Agreement.
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h.
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Use of the Parties’ Names,
Trademarks. Each party acknowledges and agrees that it
neither acquires nor can it convey any right, title or interest in and to
the other party’s trademarks, services marks, trade names, logos,
copyrights, intellectual property rights or any other asset used to
identify and distinguish the other party’s goods, services or business, as
they exist today and as they may be amended or expanded in the future, all
of which shall be collectively referred to herein as the
“Marks” Each party must review and approve in writing, prior to
use or publication, any and all use of its Marks on the Internet and all
activities or communications that reference or use the Marks. Each party
hereby grants the other a non-exclusive, non-transferable, limited license
to reproduce, display and use its Marks solely to provide the Services.
Upon termination of this Agreement, each party shall immediately
discontinue the use of the other’s
Marks.
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i.
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Merger/Amendment. This
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof. There are no understandings or
agreements, express or implied, not specified herein, and the foregoing
terms and conditions will prevail, notwithstanding any variance with the
terms and conditions of any documentation, order or other written
materials submitted by Labwire with respect to this matter. This Agreement
will not be deemed or construed to be modified, amended, rescinded,
canceled or waived in whole or in part, except by written amendment by the
parties hereto.
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Each
Party represents that the Agreement has been executed on such Party’s behalf on
the date written below by a representative authorized to bind that Party with
respect to the undertakings and obligations contained in the
Agreement.
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American
K-9 Bomb Search, Inc.
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Labwire,
Inc.
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By:
(S) ▇▇▇▇
▇▇▇▇▇▇ date:
2/1/005
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By:
(S) ▇▇▇▇▇▇▇
▇▇▇▇▇▇ date:
2/1/2005
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(Authorized
Signature)
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(Authorized
Signature)
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Print
Name/Title: ▇▇▇▇ ▇▇▇▇▇▇ COO
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Print
Name/Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ V.P. Operations
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Address:826
Oak Valley
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Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Phone:
▇▇▇-▇▇▇-▇▇▇▇
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Phone:
▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT
A
CUSTOMER
REFERRAL FORM
UNDER
THE ALLIANCE AGREEMENT BETWEEN K-9 COMMERCIAL SERVICES, INC. AND Labwire,
Inc.
Below is
a customer referral as defined in the Alliance Agreement. Labwire is proposing
this referral to K-9, or vice versa, for eligibility under the Agreement for
payment of Commission. Labwire will provide the information below to
K-9, or vice versa, in order to accept or reject the proposed Referral
Customer.
During
the term of this Alliance Agreement either party may propose Referral Customers
to each other. The referring party will utilize the attached Customer Referral
Form to propose a referral lead to the other party. Either party may accept or
reject a referral lead at its sole discretion. Within the Customer
Referral Form referring party will identify the customer’s name, location and
contact information, the details of the opportunity, the customer contact
information and the date the referral was sent to party accepting referral
(“Referral Date”). Both parties shall use reasonable efforts to notify the other
party in writing (generally within ten (10) business days from date of receipt
of the Customer Referral Form) whether it accepts or rejects the customer lead.
Unless otherwise agreed in writing by both parties, the accepted lead shall
expire 180 days following the Referral Date and acceptance by either party
unless either party and the specific Referral Customer reflected on the lead has
completed and fully executed a Service Agreement for products and services in
accordance with the provisions of the Alliance Agreement.
K-9 / Labwire Alliance
Customer Referral Form
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[Referral
Account ]
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[Labwire
Contact / Referred by]
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Referral
Date:
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Referral
Account Info.
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Name
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Contact
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Address
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Phone
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Fax
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Email
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Opportunity Description (Size,
Industry, Competition, Timing
etc) Description
Current
Labwire
Account Yes
[ ] No
[ ]
Does the
account use a Background Check Co.? Yes
[ ] No
[ ]
Currently
in a Bidding
Process? Yes
[ ] No
[ ]
K-9
Referral Acceptance
VP
Sales Approved [ ] Rejected [ ] Signature/Date:
President
/ VP Marketing
Approved [ ] Rejected [ ] Signature/Date:
FAX to
K-9
Attention: