Strategic Alliance Agreement

Contract for Strategic Alliance or Strategic Alliance Agreement

Agreement made on the (date), between , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Company 1, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Company 2.

Whereas, Company 1 manufactures and distributes , hereinafter called Company 1 Product, and Company 2 manufactures and distributes , hereinafter called Company 2 Product; and

Whereas, these Products do not compete with one another and serve differing functions; and

Whereas, these Products are complementary, and purchasers of one Product are often interested in purchasing the other Product; and

Whereas, the parties to this Agreement wish to join in a strategic alliance under which each party will promote the Product of the other, with the goal of increasing sales of both Products;

Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Mutual Promotion

Each of the parties will make a good faith commercially reasonable effort to promote the sale of the Product of the other. Specifically, Company 1 will promote the sale of Company 2 Product and Company 1 will promote the sale of Company 2 Product. A party is not authorized to sell the Product of the other or accept orders for the sale thereof but rather must refer prospective customers to the other party, and the other party will be responsible for arranging and completing the sale, including the collection of the sales price. The selling party may fix the terms and conditions of sales of its Product in its sole discretion.

2. Term

This Agreement will remain in effect until terminated by one of the parties. A party may terminate this Agreement at any time by giving at least days notice to the other.

3. Coordination

A contact person for each party will coordinate the efforts of that party under this Agreement. The initial contact persons are as follows:

A party's contact person may be changed at any time by giving notice of the change to the other party. The notice must include the name and contact information for the new contact person. The contact person for each party must be available at reasonable times and on reasonable notice to meet with, converse with, or otherwise communicate with the contact person for the other party regarding issues arising under this Agreement.

4. Relationship of Parties

This Agreement does not create a joint venture, partnership, or principal/agent relationship between the parties and nothing in this Agreement may be used to imply such a relationship. Neither party has the right, power, or authority to obligate or bind the other in any manner unless authorized in writing by the other party in a specific instance. The parties do not intend to share profits or losses arising from the sale of their Products, to co-own a business or any property, or to create a taxable entity under I.R.C. § 761(a). The parties must report the income and expenses arising out of the sale of each of their Products on their own income tax returns, and any expense incurred by a party in promoting the sale of the Product of the other party must be treated as an expense of promoting the Product of the party incurring the expense. No employees of a party are under the control, management, or supervision of the other and are not intended to be employees of the other for purposes of any federal, state, or local laws or regulations including, but not limited to, those covering unemployment insurance, employment taxes, and workers' compensation. Employees of one party are also not intended to be employees of the other party for purposes of fringe benefits provided to employees of the other party.

5. Intellectual Property

This Agreement does not give either party any ownership right or interest in the other party's trade name, trademarks, copyrights, patents, trade secrets, know-how, proprietary data, confidential information, or other intellectual property. Each party agrees to comply with the instructions of the other regarding the use of the other party's intellectual property in the promotion of the other party's Product, including properly marking promotional material with the other party's trademarks and copyrights and properly marking samples of Products on which the other party holds one or more patents, whether issued or pending.

6. Confidential Information

Confidential Information means all information that has been developed by one of the parties (the Owner), which that party considers valuable, proprietary, and confidential and which is disclosed to the other party (the Recipient). For this purpose, the Recipient includes employees or agents of the Recipient. Confidential Information includes all materials, notes, analyses, compilations, studies, or other physical or electronic documents, whether prepared by the Owner or by others, to the extent that such documents contain, reflect, or are otherwise based in whole or in part on Confidential Information. Confidential Information does not include any information, or any portion of any document based thereon, that: (a) was known to the Recipient at the time of its disclosure by the Owner; (b) was or becomes generally available to the public other than as a result of a disclosure by the Recipient; or (c) was or becomes available to the Recipient on a non-confidential basis from a source other than the Owner, provided that such source is not, to the Recipient's knowledge, subject to a confidentiality obligation with respect to such information.

7. Limitations on Disclosure

Recipient must follow commercially reasonable procedures to maintain the confidentiality of the Owner's Confidential Information and may not disclose, reproduce, or otherwise discuss or make available all or any part of the Confidential Information in any form to any person or entity at any time. However, the Recipient may disclose all or any part of the Confidential Information to its employees and agents on a need-to-know basis relating solely to the performance of this Agreement. The Recipient must inform each of its employees and agents to whom the Confidential Information is disclosed of the nature of the information and must require them to treat such information confidentially. At the request of the Owner, the Recipient must obtain confidentiality agreements in a form approved by the Owner from each of its employees and agents to whom the Confidential Information is disclosed. If the Recipient is requested or ordered to disclose all or any part of the Confidential Information in any judicial or administrative proceeding, the Recipient must give the Owner prompt written notice of such request or order so that the Owner may take appropriate lawful preventive action. If the Recipient is nonetheless compelled to disclose all or any part of the Confidential Information, it may do so without liability under this Agreement so long as it uses its best efforts to obtain assurances that confidential treatment will be accorded to such information.

8. Limitations on Use

Recipient may not use the Confidential Information for any purpose other than the performance of this Agreement.

9. Return or Destruction

Upon the request of the Owner, the Recipient must promptly return all copies of Confidential Information furnished by the Owner, and must promptly destroy other Confidential Information, including all copies of notes, analyses, compilations, studies, or other physical or electronic documents prepared by the Recipient. Each party's Confidential Information must be returned or destroyed promptly following the termination of this Agreement.

10. Non-Solicitation of Personnel

Each of the parties agrees not to hire or engage in any attempt to hire employees of the other party during the term of this Agreement and for a period of one year following its termination. Likewise, each of the parties agrees not to engage or attempt to engage the other party's independent contractors during that period of time.

11. Remedies

Each of the parties agrees that money damages will not be a sufficient remedy for any breach of the sections of this Agreement relating to confidential information and non-solicitation of personnel. Accordingly, a party will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and the parties each further agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.

12. Indemnification

Each of the parties agrees to indemnify and hold harmless the other party and its agents and employees from and against all claims, demands, obligations, and liabilities of any nature whatsoever, and all related costs and expenses (including reasonable attorneys' fees), resulting solely and directly from the indemnifying party's breach of this Agreement, negligence, or willful misconduct. No indemnification is required for any claim or liability resulting from the breach of this Agreement by the party seeking indemnification or resulting from the negligence of misconduct of either the party seeking indemnification or a third party. Each party agrees to give the other prompt written notice of any claim or other matter as to which it believes this indemnification provision applies. The indemnifying party has the right to defend against any such claim with counsel of its own choosing and to settle or compromise such claim as it deems appropriate. Each party also agrees to cooperate with the other in the defense of any such claim or other matter.

13. Miscellaneous Provisions

A. Binding Effect
The provisions of this Agreement are binding upon and will inure to the benefit of the successors and assigns of the parties.

B. Notice
Any notice or other communication required or permitted to be given under this Agreement must be in writing and mailed by certified mail, return receipt requested, postage prepaid, addressed to the contact person for the party to be notified or to whom the communication is directed. All notices and other communications will be deemed to be given at the expiration of three days after the date of mailing, unless the contact person acknowledges receipt prior to that time.

C. Severability
The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

D. No Waiver
The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

E. Governing Law
This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

F. Attorney’s Fees
In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

G. Mandatory Arbitration
Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

H. Entire Agreement
This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

I. Modification of Agreement
Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

J. Assignment of Rights
The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

14. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

15. Compliance with Laws

In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

16. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.