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Strategic Marketing Alliance Agreement

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DOCUMENT SCIENCES CORPORATION



STRATEGIC MARKETING ALLIANCE AGREEMENT



Whereas Document Sciences Corporation "DSC" may provide various value added skills, such as systems management, systems integration, networking, image management, and have insight concerning the identity of prospects in the Territory, and have knowledge concerning the applicability of Xerox Products to the business of such prospects; Whereas Xerox Corporation "Xerox" may provide various value added skills, such as systems management, systems integration, networking, image management, and have insight concerning the identity of prospects. Whereas DSC and Xerox each wish to engage the other as a non-exclusive, Strategic Marketing Associate within the Territory; and Whereas each of Xerox and DCS is willing to accept such appointment by the other, and to undertake to provide such services pursuant to the terms of this Agreement. Now, therefore DSC and Xerox agree as follows:



TABLE OF CONTENTS



ARTICLE TITLE

- ------- -----

ARTICLE I DEFINITIONS

ARTICLE II TERM

ARTICLE III RESPONSIBILITIES OF THE PARTIES

ARTICLE IV PRODUCT TESTING AND DEMONSTRATION

ARTICLE V CUSTOMER SUPPORT

ARTICLE VI TRAINING

ARTICLE VII CONFIDENTIAL INFORMATION

ARTICLE VIII TRADEMARKS AND LOGOS

ARTICLE IX INDEMNIFICATION

ARTICLE X RIGHTS OR PARTIES UNDER DEVELOPED INTELLECTUAL PROPERTY RIGHTS

ARTICLE XI TERMINATION

ARTICLE XII GENERAL PROVISIONS



DSC and Xerox agree that the terms and conditions of this Agreement will govern DSC's participation and marketing activities under their mutual Strategic Marketing Alliance Program. This Strategic Marketing Alliance Agreement is entered into by and between DSC and Xerox, as of 9/1, 1993.



I. DEFINITIONS



1.01 Confidential Information. All confidential and proprietary information which in any way relates to the function, description, or operation of Xerox Products or DSC Products, including, without limitation, data, designs, processes, specifications, drawings, schematics, software in both source and object code and trade secrets, together with non-public information such as that relating to suppliers, manufacturing techniques, service information, know how, product program schedules, project plans, financial projections, business correspondence, and such other similar non-public information.



1.02 Customer. An end-user customer in the Territory who purchases, leases or licenses Xerox Products or DSC Products for its own use and not for remarketing and who is neither a U.S. government agency, nor a prime contractor or subcontractor with a U.S. government agency where such purchase, lease and/or license relates to goods or services to be provided to such agency.



1.03 Effective Date. The date first above written.



1.04 Products. As the context requires, Xerox Products and/or DSC Products.



1.05 Program. Xerox/DSC Alliance Program.



1.06 Territory. Jurisdictions set forth in Exhibit A.



This is page one of a four page Agreement, exclusive of additional Exhibits and Schedules. The parties acknowledge that they have read this Agreement and its Exhibits and Schedules and agree to be bound by all terms and conditions.



DOCUMENT SCIENCES CORPORATION XEROX CORPORATION



/s/ Tony N. Domit /s/ Darryl R. Dobin - ------------------------------------- --------------------------------------



TONY N. DOMIT DARRYL R. DOBIN - ------------------------------------- -------------------------------------- Printed Name Printed Name



President & CEO Manager, Marketing Partnership Group - ------------------------------------- -------------------------------------- Title Title



August 18, 1993 September 8, 1993 - ------------------------------------- -------------------------------------- Date Date



6333 Greenwich Dr. Suite 120 100 Clinton Avenue South - 08A - ------------------------------------- -------------------------------------- Mailing Address Mailing Address



San Diego, Ca. 92122 Rochester, New York 14644 - ------------------------------------- --------------------------------------



(619) 625-2000 (619) 625-2021 (716) 423-5789 (716) 423-1106 - ------------------------------------- -------------------------------------- Phone Fax Phone Fax









Page 1 of 4 1.07 DSC. Document Sciences Corporation, a Delaware Corporation.



1.08 DSC Products. Products and/or services identified in Schedule 1.



1.09 Xerox. Xerox Corporation, a New York corporation.



1.10 Xerox Products. Xerox Products identifed in Schedule 2.



II. TERM



2.01 Term. Subject to earlier termination as provided in Article XI, the term of this Agreement will commence on the Effective Date and will be for a period of two years, subject to automatic successive annual one-year renewal periods.



III. RESPONSIBILITIES OF THE PARTIES



3.01 DSC Responsibilities. If DSC intends to refer Xerox Products to a Customer in conjunction with DSC Products, DSC will notify the Xerox Sales Representative responsible for that Customer of such marketing opportunity as soon as practicable.



3.02 Xerox Responsibilities. If Xerox intends to refer DSC Products to a Customer in conjunction with Xerox Products, Xerox will notify the DSC Sales Representative responsible for that Customer of such marketing opportunity as soon as practicable.



3.03 Joint Responsibilities. (a) Xerox and DSC will each appoint a manager to oversee the Program. These managers will be responsible for resolving issues that may from time to time arise, will meet at least twice per calendar year, and will be responsible for planning and developing a marketing program plan to facilitate the strategic promotion of Products;



(b) Xerox will supplement Schedule 2 and DSC will supplement Schedule 1 to add their respective products which each desires to be subject to this Agreement. If either party discontinues marketing any Products listed on the Schedules hereto, that party will notify the other of such fact, and that within at least 120 days from that date of notice, such Products will be deleted from the applicable Schedule.



(c) Xerox and DSC each will



(i) independently set prices for Products.



(ii) except as otherwise agreed independently market Products to Customers in the Territory, and



(iii) be responsible for installing and maintaining Products as well as providing Customer training with respect to such Products;



(d) Xerox and DSC will honor the other's reasonable requests for consultations and visits to each other's facilities for purposes of fulfilling the intent of or performing our respective obligations under this Agreement;



(e) Xerox and DSC may develop Customer demonstrations and proposals, and may conduct joint sales calls and Customer briefings;



(f) Xerox and DSC may incorporate the other's marketing proposals into marketing proposals for their respective Products;



(g) Xerox and DSC may act as the other's prime contractor or subcontractor as required by the Customer.



IV. PRODUCT TESTING AND DEMONSTRATION



4.01 Xerox and DSC agreed that each party will be responsible for the technical and administrative support of its own Products and that Program Managers will jointly develop procedures to facilitate the resolution of mutual technical issues and problems regarding our Products.



V. CUSTOMER SUPPORT



5.01 Xerox and DSC agree that each party will be responsible for the technical and administrative support of its own Products and that both parties will jointly develop procedures to facilitate resolution of technical problems affecting Products.



VI. TRAINING



6.01 DSC Product Training. DSC will provide to Xerox, on terms to be agreed upon by DSC and Xerox, product training sufficient to provide a reasonable number of Xerox sales representatives and analysts with a working knowledge of DSC Products.



6.02 Xerox Product Training. Xerox will provide, on terms to be agreed upon by DSC and Xerox, product training sufficient to provide a reasonable number of DSC sales representatives and analysts with a working knowledge of Xerox Products.



6.03 Documentation. The parties will provide to each other one set of customer and sales representative training documentation and will grant the other the restricted right to reproduce such documents solely for Customer demonstrations and training of the our respective sales representatives and sales management relative to Products.



VII. CONFIDENTIAL INFORMATION



7.01 We agree that it may be necessary from time to time to exchange Confidential Information.



7.02 We agree to safeguard all Confidential Information received or to be received from each other and will not disclose such information to any third party without the prior authorization from the other, and will further restrict circulation of Confidential Information without our own organization except to the extent necessary to fulfill the purposes of this Agreement. All Confidential Information will remain the property of the disclosing party.



7.03 In order to be subject to the provisions of this Article VIII, Confidential Information which is to be disclosed after the Effective Date must be disclosed either



(i) by written or electronic communication which is appropriately labeled so as to give reasonable notice to anyone reading the communication that the contents thereof are confidential and proprietary or



(ii) by oral disclosure, in which case the party making the disclosure must, at the time the disclosure is made, state to the recipients thereof that the contents of the disclosure are confidential and proprietary, and must further reduce the confidential and proprietary contents of the disclosure to a written or electronic communication, appropriately labeled as required by clause (i) above, which is delivered to said recipients within ten (10) days after the oral disclosure or execution of this Agreement, whichever is later.



7.04 The receiving party will be released from the obligations of Section 7.02 with respect to any particular portion of Confidential Information when:









Page 2 of 4 a) the receiving party can document that:



(i) it was in the public domain at the time of the disclosing party's communication thereof to the receiving party;



(ii) it entered the public domain through no fault of the receiving party subsequent to the time of the disclosing party's communication thereof to the receiving party,



(iii) it was in the receiving party's possession free of any obligation of confidence at the time of the disclosing party's communication thereof to the receiving party,



(iv) it was rightfully communicated to the receiving party free of any obligation of confidence subsequent to the time of the disclosing party's communication thereof to the receiving party, or



(v) it was independently developed by the receiving party without reference to the Confidential Information of the disclosing party; or



(b) it is communicated by the disclosing party to a third party free of any obligation of confidence; or



(c) it is after three (3) years after the disclosing party's communication thereof to the receiving party.



7.05 All materials including, without limitation, documents, drawings, models, apparatus, sketches, designs, and lists furnished to one party by another and which are designated in writing to be the property of such party will remain the property of such party and will be returned to such party promptly at its requests with all copies made thereof.



VIII. TRADEMARKS AND LOGOS



8.01 The trademarks and trade names under which each party markets Products will remain the exclusive property of such party. This Agreement gives the other party no rights therein except that during the term of this Agreement each party grants to the other a restricted license to reproduce such trademarks and trade names in publications and under written terms and conditions as may hereafter be approved by the granting party.



IX. INDEMNIFICATION



9.01 Intellectual Property. Each party represents and warrants to the other that it has sufficient right, title and interest in and to the Products to enter into this Agreement and further warrants that it is not aware that its Products infringe any patent, copyright or other proprietary right of a third party and that it has not been notified by a third party of a possibility that its Products might infringe any patent, copyright or other proprietary right of a third party.



9.02 General. Each party the "Indemnifying Party") will defend and hold harmless the other party (the "Indemnified Party") from, and pay any amount due, any claim, action or other proceeding brought against the Indemnified Party arising from the use and marketing of the Indemnifying Party's Products, providing that the Indemnified Party promptly notified the Indemnifying Party in writing of any action or claim, allows the Indemnifying Party at its expense, to direct the defense, gives the Indemnifying Party sufficient information in the Indemnified Party's possession and reasonable assistance required to defend such suit, claim or proceeding, but at no out-of-pocket expense to the Indemnified Party, and allows the Indemnifying Party to pay any judgment, provided further that the Indemnifying Party will have no liability for any claim, action or other proceeding based upon acts or omissions by the Indemnified Party or for settlements or costs incurred without the knowledge of the Indemnifying Party. To avoid infringement the Indemnifying Party may, at the Indemnifying Party's option, and at no charge to the Indemnified Party, obtain a license, or modify the Indemnifying Party's Products so that they no longer infringe, but only if the modification is still an equivalent of the Indemnifying Party's Products, or substitute an equivalent of the Indemnifying Party's Products.



X. RIGHTS OF PARTIES UNDER

DEVELOPED INTELLECTUAL PROPERTY RIGHTS



10.01. Unless otherwise agreed in writing by the parties, ownership of any writings, discoveries, inventions or innovations ("Improvements") arising out of the cooperation of the parties pursuant to this Agreement will reside with the party whose employee(s) or agent(s)



(i) first conceived the Improvement, in the case of patentable Improvements, and



(ii) in the case of copyrightable Improvements, first fix the Improvement in any tangible medium of expression, now known or later developed, from which it can be perceived, either directly or with the aid of a machine or device.



10.02 Each party who is an owner of an Improvement will be responsible in its sole discretion for conducting its own plans and program relative to filing for and maintaining patent rights, trade secrets, mask works, copyrights or other registerable or applied for intellectual property rights in one or more countries of the world.



XI. TERMINATION



11.01 Termination for Cause. (a) Either party may terminate this Agreement upon written notice of termination to the other party in any of the following events:



(i) the other party materially breaches this Agreement and such breach remains uncured for thirty (30) days following written notice of breach by the terminating party; provided, however that in the case of a repeat of a material breach earlier cured, the new cure period will be ten (10) days; or



(ii) causes beyond the reasonable control of the other party delay its performance for more than thirty (30) days; provided, however, that in the case of a repeated force majeure delay earlier cured, the new cure period will be ten (10) days; or



(iii) a petition for relief under any bankruptcy legislation is filed by or against the other party, or the other party makes an assignment for the benefit of creditors, or a receiver is appointed for all or a substantial part of the other party's assets, and such petition, assignment or appointment is not dismissed or vacated within thirty (30) days; or



(iv) change in majority ownership or change of control of the other party.



(b) Either party may terminate this Agreement without cause, upon ninety days written notice of termination to the other party.









Page 3 of 4 11.02 Survival. The provisions of this Agreement will, to the extent applicable, survive the expiration or any termination hereof.



XII. GENERAL PROVISIONS



12.01 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH HEREIN, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.



12.02 Relationship of the Parties. (a) We agree that we are independent parties and neither of us is authorized to make any commitment or representation on the other's behalf.



(b) During the term of this Agreement, should the term "partnership", "Partner" or "development partner" be used to describe the Cooperative development relationship, we agree to make it clear to third parties that these terms refer only to the spirit of cooperation between us and do not describe or expressly or impliedly create the legal status of partners or joint venturers.



12.03 Government Compliance. Each party will comply fully with all federal, state and local laws and regulations relating to its obligations under this Agreement.



12.04 Ethical Standards. Each party agrees that, with respect to its performance under this Agreement including any interaction with any employee of the other party pursuant to this Agreement, such party will not:



(a) give or offer to give any gift or benefit to said employee,



(b) solicit or accept any information, data services, equipment, or commitment from said employee unless same is



(i) required or permitted to be solicited or accepted under a contract or other arrangement between Xerox and DSC, or



(ii) made pursuant to a written disclosure agreement between Xerox and DSC, or



(iii) specifically authorized in writing by the employee's management,



(c) solicit or accept favoritism from said employee, or



(d) enter into any outside business relationship with said employee without full disclosure to, and prior approval of, the employee's management. As used herein, "employee" includes members of the employee's immediate family had household, plus any other person who is attempting to benefit from his or her relationship to the employee. A "party" in this context includes all employees and agents of the party. "Gift or benefit" includes money, goods, services, discounts, favors and the like in any form but excluding low value advertising items such as pens, pencils and calendars. "Favoritism" means partiality in promoting the interest of a party over that of other vendors. Such activity by either party will constitute breach of this Agreement by that party.



12.05 Force Majeure. Except as otherwise provided herein, neither party will be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control, provided that the party experiencing such delay promptly notifies the other party of the delay. In the event that such a delay by a party continues for more than sixty (60) days, the other party may, at its sole option, and in addition to its other rights and remedies under this Agreement or at law or in equity, suspend its obligations under this Agreement during the period of delay.



12.06 Headings. The headings and titles of the Articles of this Agreement are inserted for convenience only and will not affect the construction or interpretation of any provision.



12.07 Amendment. This Agreement may be amended only by a written agreement duly signed by authorized representatives of both parties.



12.08 Assignment. Neither party will assign this Agreement or any rights and obligations thereunder to any third party without the express written permission of the other party, except that each party may assign this Agreement to an entity directly or indirectly controlling, controlled by, or under common control with Xerox.



12.09 Severability. If any provision of this Agreement is held invalid by any law, rule, order or regulation of any government, or by the final determination of any state or federal court, such invalidity will not affect the enforceability of any other provisions not held to be invalid.



12.10 Waiver. Any delay by either party to exercise any right or remedy under this Agreement will not be construed to be a waiver of any other right or remedy hereunder. All of the rights of either party under this Agreement will be cumulative and may be exercised separately or concurrently.



12.11 Alternate Dispute Resolution. The parties will attempt to resolve any dispute, controversy or claim arising under this Agreement in a non-judicial manner and forum. Any such dispute, controversy, or claim hereunder will be initially referred for resolution to the respective parties' Program Managers appointed pursuant to this Agreement. If such individuals cannot resolve the matter within sixty (60) days after the matter in dispute has been submitted to them for resolution, then the matter will be referred to one corporate Vice-President of each of the parties for resolution within a subsequent sixty day period.



12.12 Publicity. Neither party will publicly disclose any information concerning this Agreement without the prior written consent of the other party.



12.13. Controlling Law. This Agreement will be governed by and construed in all respects in accordance with the laws of the State of California.



12.14. Entire Agreement. This Agreement constitutes the entire agreement of the parties as to the subject matter hereof and supersedes any and all prior oral or written memoranda, understandings and agreements as to such subject matter.



12.15 Notices. Any notice which may be or is required to be given under this Agreement will be written. Any written notices will be sent by registered mail or certified mail, postage prepaid, return receipt requested.





Page 4 of 4 All such notices will be deemed to have been given when received, properly addressed pursuant to the addresses below:



Xerox Corporation Xerox Square - 08A - -------------------------------------------------- 100 Clinton Avenue South - -------------------------------------------------- Rochester, New York 14644 - -------------------------------------------------- Attention: Darryl R. Dobin

----------------------------------------





Document Sciences Corporation - -------------------------------------------------- 6333 Greenwich Drive - -------------------------------------------------- Suite 120 - -------------------------------------------------- San Diego, California 92122 - -------------------------------------------------- Attention: Vice President - Sales and Marketing

----------------------------------------





Page 5 of 4 STRATEGIC MARKETING ALLIANCE AGREEMENT EXHIBIT A

TERRITORY AND FEE SCHEDULE

FOR THE UNITED STATES OF AMERICA

July 1, 1993



DSC and Xerox Corporation agree that the terms and conditions of this Exhibit A, an attachment to the Strategic Marketing Alliance Agreement, will govern their participation and marketing activities within the Territory defined below.



I. DEFINITIONS



1.1 QUALIFIED DSC REFERRAL. The effort undertaken by DSC in marketing Xerox Products to a Customer where, at a minimum, DSC will: (i) establish contact with the Customer; (ii) provide information regarding Xerox Products; (iii) maintain contact with the Customer throughout the sales cycle; (iv) offer to provide complementary products and or services to support Xerox Products, and (v) provide Xerox with a prospect name as reflected on Schedule 3, "QUALIFIED DSC REFERRAL FORM," the form of which will be mutually agreed to, and which shall be duly signed by DSC's authorized representative and the authorized Xerox representative.



1.2 QUALIFIED XEROX REFERRAL. The effort undertaken by Xerox in marketing DSC Products to a Customer where, at a minimum, Xerox will: (i) establish contact with the Customer; (ii) provide information regarding DSC Products; (iii) maintain contact with the Customer throughout the sales cycle; (iv) offer to provide complementary products and or services to support DSC Products, and (v) provide DSC with a prospect name as reflected on Schedule 4, "QUALIFIED XEROX REFERRAL FORM," the form of which will be mutually agreed to, and which shall be duly signed by Xerox authorized representative and the authorized DSC representative.



1.2 TERRITORY. The jurisdictions of the United States of America, and its territories and possessions.



1.3 DSC. Document Sciences Corporation, a Delaware corporation.



1.4 DSC PRODUCTS. Those products and/or services identified in Schedule 1.



1.5. PRODUCTS. As the context requires, Xerox Products and/or DSC Products.



1.6. XEROX. Within the context of this Exhibit A, means Xerox Corporation operations within the United States of America, and its territories and possessions.



1.7 XEROX PRODUCTS. Those Xerox Products identified in Schedule 2.



II. COMMISSIONS



2.1 COMMISSIONS.



(a) If DSC makes a Qualified DSC Referral to a Customer in the Territory and Xerox either sells, licenses to or leases (with an initial term of one year) or licenses to such Customer one or more newly installed Xerox Products where the Customer's purchase, lease or license or such Xerox Products was based upon a Qualified Referral, Xerox will either pay a commission equal to a percentage of the price invoiced to the Customer for such purchase, lease or license net of any assessed taxes, duties, freight and insurance charges; or a fixed dollar fee, in each case as set forth in Section 2.4 below.

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