EXHIBIT 10.11
TEAMING
&
NON-DISCLOSURE AGREEMENT
For the
Retail Kiosk Delivery System - Mattel Kiosk Project
This TEAMING AGREEMENT is made as of the 18th day of September 2000, amongst the
following companies:
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Company Address Primary Contact Telephone
Facsimile
E-Mail
Mattel Canada Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 905 501-0404
Mississauga, Ontario Director of Sale ▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Power Photo Kiosk Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 905 948-9600
Markham, Ontario President ▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE TEAMING PARTNERS AGREE TO THE FOLLOWING:
1. Project Management
Each of the Teaming Partners agrees that the Project efforts will be led and
coordinated by Power Photo Kiosk Inc personnel.
Mattel: Marketing and Advertising content, coordination and lead consulting with
Wal-Mart, assist in project coordination.
Integrated Kiosk: Manufacture enclosures, provide all hardware and related
software applications, project coordination, lead set-up of Site Services and
Installation. Coordinate with Power Kiosk Inc and provide alternative financial
Models for deployment of project.
Power Photo will provide the test and development environments, to be located at
it's Markham offices. Where necessary and effective, staff, equipment, software,
etc. will be made available to Mattel and or Wal-Mart for proposes of promoting
this Kiosk Project within the respective organization.
Teaming Partners Responsibilities
Each Teaming Partner will be responsible to supply any relevant and required
corporate, technical, product, service for the individual Company's area (s) of
participation.
Each Teaming Partner will be responsible for assessing their technical and
functional ability levels, and the associated costs of bringing to the
requirements, its own products and services. Furthermore, each Teaming Partner
will make the necessary personnel available to the lead/co- ordinator, Power
Photo Kiosk Inc personnel for clarification, rework and additional information.
It is recognized that differences of opinion will occur as to the technical
requirements and therefore the resources needed to meet any given mandatory
requirement. In such an event, the lead/co-ordinator, Power Photo Kiosk Inc
personnel will not proceed without agreement by Mattel.
Each Teaming Partner agrees that it will team ONLY with the group named as
parties to this Agreement collectively for preparation and submission, and in
the event of award the delivery of the specifically named Proposal and Project,
being the Mattel Retail Delivery Kiosk.
Work towards the storewide rollout at Wal-Mart will be done as per the Detailed
Work Plan, being a living and evolving document and to be initially agreed upon
before commencing of phase two implementation. The finalized and agreed to
Detailed Work Plan will constitute Appendix A to this Agreement.
Revenues from Pilot Project.
Any revenues obtained through advertising or the sale of the picture portion of
the Mattel Retail Delivery Kiosk Project, for the period of three months
starting October 2000 will remain with Power Photo as partial restitution for
financing the Project.
A revenue share agreement with Wal-Mart will be put in place once all parties
agree to a storewide rollout. Mattel will not be charged for any element of the
kiosk except for an agreed upon advertising component.
Rights and Ownership's of Other Related Technology
Any rights and ownership's held by the parties to any intellectual property,
licenses, patents, trademarks, copyrights, registrations, etc. will remain as
these were prior to the execution of this Teaming Agreement.
Any intellectual property developed solely by an individual Teaming Partner
through the course of this agreement remains the property of that Teaming
Partner and no rights or interest thereto will be assigned to any of the other
Teaming Partners collectively, or individual unless mutually agreed upon.
Indemnification
The Teaming Partners agree to indemnify each other and to hold each other and
their respective directors, employees and agents harmless from all costs, loss,
liability and expense (including court costs and reasonable fees of attorneys
and expert witnesses) incurred as a result of any claims or demands brought
against or incurred by any other Teaming Partner or combination of Teaming
Partners or their respective directors, employees or agents, arising from or in
connection with any representations, warranties or guarantees made by the
individual Teaming Partner to any third parties concerning the product (s),
hardware and/or software and/or services which are inconsistent with or in
addition to those made by Teaming Partner responsible for the product (s) and/or
services, as per this Agreement.
Use of Teaming Partners' Names
None of the Teaming Partners will use any other Teaming Partner's name or refer
to any other Teaming Partner in any press release, advertising or marketing
literature, without the prior written approval of the Teaming Partner who's name
is to be used.
Non-Disclosure
In the performance of any of a particular Teaming Partner's
responsibilities/obligations under this Agreement, employees of each Teaming
Partner may be exposed to confidential information and materials of the others.
Each Teaming Partner agrees for themselves and all of their employees (and
sub-contractors, if applicable) that such information will be kept confidential
and not disclosed to third parties.
Items will not be considered to be Confidential Information if:
already available to the public; independently developed by personnel or agents
of one Teaming Partner without access to the Confidential Information of the
other; already known to the recipient at the time of disclosure; or produced in
compliance with applicable law or a court order, provided the receiving Teaming
Partner first gives the disclosing Teaming Partner reasonable notice of such law
or order.
Each of the Teaming Partners agrees to keep as "Confidential" any confidential
information, perceived as material or otherwise, obtained by it or its employees
from or in regard to another Teaming Partner, its products or services.
General Provisions
Term & Termination
The Project is to be divided into to phases:
Phase 1: Produce and deploy 14 Kiosks for Pilot Project, 10 for Wal-Mart Store
locations located in Canada, 4 for Promotional proposes located in places such
as Mattel's Head Office, Wal- Mart's Head Office etc. After a 90 trial period,
analyze data and make changes to any areas required before a complete rollout.
Phase 2: Complete rollout to all Wal-Mart Stores in Canada given Wal-Mart
approval and signoff. (Approx. 200 stores)
Phase 3: Work with Wal-Mart U.S and Mattel U.S. jointly with Mattel Canada to
reach a goal on located kiosks throughout the USA at locations approved by
Wal-Mart U.S.
Power Photo Kiosks agrees to borne all costs associated with the pilot project
at 10 Wal-Mart Stores and subsequent rollout if pilot is successful, these costs
include, manufacturing of the kiosk enclosures including all hardware, software
and merchandising elements (i.e., shelving, peg-hooks), shipping and on going
maintenance, electrical and telephone charges and delivery and setup within each
location as approved.
Mattel will be responsible to provide all images utilized in the photo
application. Mattel will also come to an agreement with Power Photo on
advertising on the Kiosk Network within Wal-Mart Stores for both the pilot and
future rollout. Mattel will be responsible to provide only commercials or
advertisements for their portion of the advertising element.
Wal-Mart will be responsible to provide the floor space within the approved
locations; all negotiations and approvals with Wal-Mart are to be coordinated by
Mattel.
Contractual commitments are to be met based upon the agreed to Detailed Work
Plan. Commitments not met within target dates must be rectified so as not to
impact the project deliverables. Formal notice will be given in the event of
such an occurrence and any cost associated with delays will be carried by the
at-fault Teaming Partner. Failure to do so will constitute grounds for
termination of the defaulting Teaming Partner involvement in this Agreement and
the Mattel Retail Delivery Kiosk Project.
Mattel's approval of all graphic treatment, colors, etc is required prior to
commencing of rollout and changes thereafter. Mattel controls the merchandising
panels and interactive panels on side and top of kiosk including control and
ownership of email names collected. Mattel must approve all images and graphics
used on the touch screen application and will be responsible to manage the
information gathered at the kiosk (i.e. email addresses, names). Power Photo
will gather the information such as email addresses, names and ages along with
the customers choices and store on a computer server to be located at an agreed
upon location.
Power Photo agrees to utilize advertisers that firstly are licensees of Mattel.
Any other advertisers required to meet the minimum revenue projections must be
non-competing vendors of Mattel and are subject to Mattel's approval.
Power Photo gives Mattel right of first refusal for participation in an
interactive kiosk program within a toy environment with any other retailer.
Relationship between the Teaming Partners
The Teaming Partners will in all matters relating to this Agreement act as
independent contractors.
Nothing in this Agreement will be deemed to constitute the Teaming Partner as a
business partner, joint venturer, franchisee, agent or employee of any other
Teaming Partner (s), except as explicitly stated within this Agreement.
Entire Agreement
This Agreement, together with the Appendices, Schedules, Exhibits and Addenda
hereto, constitute the entire agreement of the Teaming Partners and supersede
any previous communications, representations, understandings or agreements with
respect to the subject matter hereof.
This Agreement may only be modified by written agreement amongst each of the
Teaming Partners. IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be executed by their respective authorized representatives. This Agreement
may be executed in counterparts, each of which will be deemed an original, but
all of which together will constitute one and the same agreement.
Per: Mattel Canada Inc. Per: Power Photo Kiosk Inc.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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(Authorized Signatory) (Authorized Signatory)
Name ▇▇▇▇▇▇ ▇▇▇▇▇ Name ▇▇▇▇▇ ▇▇▇▇▇
Title Director of Sales Title President
Date October 26, 2000 Date October 17, 2000