Exhibit 10.29
- NORTEL/RAINMAKER CONFIDENTIAL -
Nortel Agreement No.: 011145
Outsourced Services Agreement
This Outsourced Services Agreement (this "Agreement") is entered into
effective as of the date both parties hereto have signed this Agreement
("Effective Date"), by and between Rainmaker Services, Inc., a Delaware
corporation ("Rainmaker"), and Nortel Networks Inc. ("Nortel"). Capitalized
terms not otherwise defined herein have the meanings specified in the Agreement.
WHEREAS, Nortel is a supplier of networking equipment and Service
Contracts (as defined below);
WHEREAS, Nortel desires to engage Rainmaker to perform certain sales
and marketing functions and other Outsourced Services (as defined below) with
respect to Service Contracts, upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree to be
bound by the terms and conditions set forth below.
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
"Business Day" means any day other than a Saturday, Sunday or any U.S.
nationally recognized holiday.
"Customer" means any entity which is a party to, or prospectively will be a
party to a Service Contract. in each case offered by Nortel or Rainmaker to
such Customer.
"Go-Live Date" means the date on which Rainmaker will begin to provide the
sales and marketing functions and other Outsourced Services, which date
will be no later than 42 days after the Effective Date.
"Intellectual Property" means any copyright rights, trademark rights, trade
names, trade secret rights, inventions, ideas, patents, patent rights and
other intellectual property and proprietary rights in, to under and in any
way related to the Service Contracts.
"List Price" means the non-discounted price determined by Nortel in respect
of any Service Contract. "Marketing Program Fees" means marketing program
fees to be paid by Nortel to Rainmaker, as set forth in Exhibit D.
"Nortel Networks Limited" means Nortel's parent corporation.
"Outsourced Services" means those services which Rainmaker will provide for
or on behalf of Nortel and which are set forth in Exhibit D.
"Service Contract" means an agreement pursuant to which Nortel agrees to
provide technical maintenance support, or other services to Customers. The
types of Service Contracts for which Rainmaker will provide sales and
marketing services are set forth in Exhibit A.
"Start-Up Schedule" means the schedule of tasks that must be completed
before Go-Live Date, as set forth in Exhibit C.
"Start-Up Services" means database integration and enhancements; report
writing; enhancements to software applications, work stations and telephone
systems; and other activities (whether or riot listed in the Start-Up
Schedule) which Rainmaker and Nortel may mutually agree are necessary to
implement the Outsourced Services.
"Target Market" means the market segment to which Rainmaker may perform
sales, marketing or rescue services with respect to the Service Contracts,
as set forth in Exhibit B.
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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"Territory" means the geographic territory in which Rainmaker may perform
sales, marketing or rescue services with respect to the Service Contracts,
as set forth in Exhibit B.
2. APPOINTMENT; GRANT OF LICENSES.
2.1 Appointment. Nortel hereby appoints Rainmaker, for the term of this
Agreement and subject to the terms and conditions contained herein, as (i)
Nortel's exclusive provider of Outsourced Services for the Target Market within
the Territory; and (ii) subject to any limitations set forth in Section 2.2
below, Rainmaker shall be an exclusive reseller of Service Contract renewals for
the Target Market within the Territory. Nortel hereby expressly authorizes
Rainmaker to contact Customers on the basis of and in furtherance of Nortel's
established business relationship with its Customers.
2.2 Reseller License. Nortel hereby grants to Rainmaker, for the term of this
Agreement and subject to the terms and conditions hereof, a nonexclusive,
royalty-free license to sell and market the Service Contracts to the Target
Market within the Territory, Notwithstanding the generality of the foregoing,
such license shall not apply to Service Contracts listed in Exhibit B as
"Excluded Service Contracts" ("Excluded Service Contracts') or to Service
Contracts to which any of the business entities set forth on Exhibit B as
"Restricted Accounts" are a party.
2.3 Services to Others. Rainmaker shall have the right to provide services
similar to the Outsourced Services to third parties, subject to the security an
non-disclosure obligations set forth herein.
2.4 Use of Nortel Marks.
(i) License to Use Nortel Marks. Subject to the terms and conditions hereof,
Nortel, as licensee, hereby grants to Rainmaker a personal, non-transferable,
non-assignable, nonexclusive, non-sublicensable and royalty-free sublicense to
use the trademark(s) or service xxxx(s) approved by Nortel Networks Limited and
listed at Exhibit G ("Nortel Marks") in providing the Outsourced Services during
the Term for the Target Market in the Territory, only (1) to create the design
of the Opportunity Name or logo on Rainmaker's Site (as defined in Section 7.2
and Exhibit C), and (2) to market and sell the Service Contracts hereunder.
Nortel Networks Limited, in its sole discretion from time to time, may change
the appearance and/or style of the Nortel Marks or add to or subtract from the
approved list, provided that, unless required earlier by a court order or to
avoid potential infringement liability, Nortel or Nortel Networks Limited shall
provide Rainmaker with 30 days' prior written notice of any such changes.
Rainmaker must obtain Nortel's or Nortel Networks Limited's written approval of
each different design and use.
(ii) Use and Display of Nortel Marks. Rainmaker shall comply with instructions
from Nortel as to the form and manner in which the Nortel Marks will be used
pursuant hereto and shall ensure that all markings are in accordance with
applicable legal requirements of the Territory. Rainmaker shall submit to Nortel
for prior approval, in tile manner in which Nortel shall direct, all materials
on which the Nortel Marks appear or are intended to be used. Nortel shall have
the right to monitor and inspect all such materials at reasonable times for the
purpose of enabling Nortel to ensure compliance with the Nortel Xxxx
requirements of this Agreement. All materials on which Rainmaker displays Nortel
Marks shall contain appropriate trademark ownership/attribution notices that
clearly identify Nortel Networks Limited as the owner of said trademarks.
Specifically, those Nortel Marks that are displayed by Rainmaker shall be
identified clearly as "trademarks of Nortel Networks Limited" in a standard
trademark attribution line appearing at the beginning or end of each of the
materials.
(iii) Additional Provisions regarding Nortel Marks.
(a) Nortel or Nortel Networks Limited and Rainmaker shall execute such
further agreements or instruments as may be considered appropriate to
record the rights granted hereunder. Rainmaker shall cooperate with
Nortel and Nortel Networks Limited in respect of any Nortel Xxxx
registration activity Nortel or Nortel Networks Limited undertakes
and as needed, shall provide Nortel or Nortel Networks Limited with
information, samples and documents to evidence Rainmaker's use of the
Nortel Xxxx.
(b) Rainmaker shall take all reasonable precautions to protect any Nortel
Xxxx from infringement and shall advise Nortel of any infringement or
apparent infringement as soon as it becomes known to Rainmaker.
(c) Upon termination or expiration of this Agreement, Rainmaker shall
forthwith discontinue the exercise of the rights granted hereunder,
and all rights conferred upon Rainmaker hereunder to any
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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Nortel Xxxx shall revert to Nortel Networks Limited. Rainmaker shall
not make any use of the Nortel Xxxx or trade name similar to the
Nortel Xxxx in association with any products, services, packaging or
general advertising.
3. OWNERSHIP, INTELLECTUAL PROPERTY.
3.1 Service Contracts; Customer Data. Nothing contained in this Agreement shall
directly or indirectly be construed to assign or to grant to Rainmaker any
right, title or interest in or to any Customer data (including the Nortel
Database) or any Intellectual Property embodied in or related to the Service
Contracts. In addition, Nortel shall exclusively own all Customer purchase
orders and other records that are created, modified, and entered into the
Rainmaker Database during the course of Rainmaker's provision of the Outsourced
Services.
3.2 Nortel Marks. Rainmaker hereby acknowledges and agrees that (i) the Nortel
Marks and all goodwill associated therewith are, and shall remain, owned
exclusively by Nortel Networks Limited, (ii) except as expressly set forth
herein, Rainmaker has no right, title or interest in or to the Nortel Marks, and
(iii) all use of the Nortel Marks by Rainmaker will inure to the benefit of
Nortel Networks Limited. Rainmaker agrees not to apply for registration of the
Nortel Marks (or any xxxx confusingly similar thereto) anywhere in the world.
3.3 Proprietary Notices . Rainmaker agrees not to alter or remove any logo,
insignia, copyright notice, trademark notice or other proprietary notice on any
document provided by Nortel or Nortel Networks Limited.
4. START-UP PERIOD.
4.1 Tasks. By the date or dates set forth in the Start-Up Schedule, (i)
Rainmaker will invoice Nortel for the implementation fees set forth in Exhibit D
("Implementation Fees") and (ii) each party shall complete its respective tasks
as described in the Start-Up Schedule.
4.2 Meeting the Start-Up Schedule. Nortel acknowledges that all tasks set forth
on the Start-Up Schedule must be completed prior to the Go-Live Date. Nortel
acknowledges that Nortel's cooperation will be required for Rainmaker to
complete the tasks set forth in the Start-Up Schedule and that the Go-Live Date
will be dependent on Nortel's actions. Accordingly, Nortel shall use
commercially reasonable efforts to provide Rainmaker with all necessary
cooperation and assistance, and any dates or time periods relevant to
performance by Nortel under this Agreement and the Start-Up schedule shall be
appropriately and equitably extended day for day to account for any delays for
which Nortel is responsible. If, in Rainmaker's reasonable discretion, any such
delays would materially change the economics of Rainmaker's performance under
this Agreement, Rainmaker may, notwithstanding anything in this Agreement to the
contrary, terminate this Agreement upon *** days prior written notice to Nortel,
unless, within the notice period. the parties agree on mutually acceptable
changes to this Agreement (and the parties will negotiate in good faith to do
so) or Nortel equitably increases the compensation to Rainmaker in accordance
with a reasonable proposal that Rainmaker may provide.
5. MONTHLY REPORTS. By the fifth Business Day of each month after the Go-Live
Date, Rainmaker shall provide to Nortel, via e-mail or file transfer protocol
(FTP) *** a sales and marketing report. Additional reporting may be available
upon Nortel's request, and will be subject to Rainmaker's then-current prices
for custom development.
6. RECORDS, AUDIT, INSPECTION.
6.1 Rainmaker shall keep accurate and proper books and records, in conformity
with good business and accounting practices, relating to its provision of the
Outsourced Services hereunder and Rainmaker shall keep such books and records
for at least seven (7) years in order for Nortel to maintain its compliance with
***. No more than once each year, and upon 60 days' prior written notice to
Rainmaker, Nortel may retain a third party accountant to review such books and
records (but not any other books or records that do not pertain to Nortel and
the Outsourced Services) during Rainmaker's normal business hours- In the event
that any such review discloses discrepancies with respect to any payments made
pursuant to this Agreement, any such discrepant amounts
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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shall be rectified during the next payment period under this Agreement.
6.2 Inspection. Upon giving reasonable prior notice, Nortel and any of its
authorized representatives shall have the right during ordinary business hours
to visit and inspect: Rainmaker's facilities, including without limitation
auditing of services being provided hereunder on a confidential basis and at no
charge to Nortel. Rainmaker shall provide all reasonable facilities and
assistance for the safety and convenience of such visitors and inspectors during
their visits, including making personnel engaged, whether directly or
indirectly, in the supply of services available for consultation at all
reasonable times. Every visitor and inspector attending at any facility of
Rainmaker or other relevant site shall comply at all times with all applicable
safety and security rules and regulations established by Rainmaker.
7. RAINMAKER SERVICES.
7.1 Outsourced Services. Subject to the terms and conditions hereof, Rainmaker
shall perform the Outsourced Services for Nortel during the term of this
Agreement.
7.2 Opportunity Name. Rainmaker shall provide the Outsourced Services
under the business trade name Nortel Networks Enterprise Support Services
("Opportunity Name"), Rainmaker shall file a DBA under association with its
registered corporate name with respect to such Opportunity Name in Santa Xxxx
County.
7.3 Additional Services. Subject to the written agreement of the
parties, Rainmaker may perform further services for Nortel under this Agreement
for which Rainmaker will be compensated at prices mutually agreed upon by the
parties in writing.
8. MARKETING.
8.1 Rainmaker's Marketing Efforts. Rainmaker shall use commercially reasonable
efforts to market the Service Contracts throughout the Territory to the Target
Market by performing such marketing services as Rainmaker may propose to
undertake and Nortel may approve in advance in writing (with Nortel's approval
not to be unreasonably withheld, conditioned of delayed).
8.2 Nortel Support. Nortel agrees to:
(i) provide Rainmaker with all assistance that Rainmaker reasonably requests in
performing its sales and marketing services with respect to the Service
Contracts; and
(ii) give Rainmaker the opportunity to participate in all marketing and sales
events that Nortel sponsors or in which Nortel has the right to participate
with respect to the Service Contracts.
9. PRICING, PAYMENT AND PAYMENTS TERMS.
9.1 Prices of Service Contracts to Rainmaker. Nortel shall offer to sell all
Service Contracts to Rainmaker at ***. Nortel shall provide Rainmaker with 90
days' prior written notification of any increase or decrease in any List Price.
Rainmaker shall deliver to Nortel each month a purchase order for Service
Contracts that Rainmaker has sold to Customers.
9.2 Invoicing. Rainmaker shall deliver to Nortel each month an invoice in a
form acceptable to Nortel for the Outsourced Services that have been provided by
Rainmaker to Nortel and approved by Nortel during the preceding invoice period.
Once Rainmaker performs such Outsourced Services, the fees that have accrued for
such services axe non-refundable. The service fees payable to Rainmaker or the
Outsourced Services are as set forth in Exhibit D. Nortel shall pay to Rainmaker
the amounts set forth in any such invoice within *** after Nortel's receipt
thereof.
9.3 Increases In List Prices. In the event that Nortel increases any List Price
for any Service Contract after Rainmaker has quoted a price for such Service
Contract, at a future date subsequent to the date on which such increase is to
go into effect, Nortel agrees to convey the applicable services thereunder for
the List Price in effect prior to the increase.
9.4 Nortel-Based Pricing Promotions. Rainmaker shall be permitted to
participate in any and all sales discounting promotions that Nortel may offer
from time to time in connection with any Service Contracts within Target Market.
9.5 Rainmaker Fees and Customer Terms. Subject to Section 18.9 (Relationship of
the Parties), Rainmaker may offer Service Contract to Customers at such fees and
discounts as Rainmaker shall determine in its sole
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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discretion; provided that any such discount shall reduce Rainmaker's margin with
respect to such Service Contract by the amount of such discount, Rainmaker shall
have the right to cancel any Customer's order for Service Contracts in the event
that any such Customer fails to submit payment for such order, and Rainmaker
will notify Nortel immediately upon such cancellation. If Rainmaker cancels any
such order, Rainmaker shall bear the loss of the actual cost of the Service
Contract provided to the Customer for which the Customer has not paid. Nortel
further agrees that, upon notice from Rainmaker, Nortel shall cease providing
any services under a Service Contract to Customers. who have defaulted on any
payments due and owing to Rainmaker for such Service Contract.
9.6 Discontinuance of Service Contracts Nortel shall provide Rainmaker with ***
written notice before Nortel discontinues any Service Contract covered by this
Agreement, other than where a Service Contract term expires, In the event that
any such Service Contract is discontinued-without cause, Rainmaker may, at its
reasonable discretion, terminate this Agreement at any time upon *** written
notice to Nortel.
9.7 Taxes
All fees for services provided by Rainmaker ate exclusive of any tax which may
be assessed. Nortel will pay as a separate item on an invoice any such tax
lawfully imposed on the provision of the services to Nortel, or will provide
Rainmaker with a certificate of exemption acceptable to the appropriate taxing
authority. Rainmaker agrees to provide reasonable assistance without charge in
any proceeding for the refund or abatement of any such taxes Nortel is required
to pay. Without limiting the generality of the foregoing, Nortel shall have no
obligation to pay taxes based upon Rainmakers net income.
10. RAINMAKER'S REPRESENTATIONS AND WARRANTIES; LIMITATIONS.
10.1 Outsourced Services. Rainmaker represents, warrants, and covenants to
Nortel that Rainmaker will perform the Outsourced Services and other services in
accordance with-the highest industry standards.
10.2 No Customer Warranties. Rainmaker represents, wan-ants, and covenants to
Nortel that Rainmaker will not make any representations or warranties to
Customers other than those that Nortel provides with the applicable type of
Service Contract. Rainmaker further represents, warrants, and covenants that
Rainmaker will not make any representations or warranties on behalf of Nortel or
take any action or permit any action to be taken on Rainmaker's behalf which
purports to be done in the name of or on behalf of Nortel, other than as
expressly permitted in this Agreement.
10.3 Authority. Rainmaker represents, warrants, and covenants to Nortel that
Rainmaker has full power and authority to enter into this Agreement and to
perform its obligations hereunder.
10.4 No Claims. Rainmaker represents and warrants to Nortel that there is no
action, suit, proceeding, or material claim or investigation pending or
threatened against Rainmaker in any court, or before any governmental
department, commission, agency, or the like, or before any arbitrator which, if
adversely determined, might adversely affect Rainmaker's ability to provide the
Outsourced Services or other services-hereunder.
10.5 Rainmaker represents, warrants and covenants that it shall pay all
applicable income, old age insurance, unemployment and similar employment taxes
with respect to its employees supplying services.
10.6 LIMITATION OF WARRANTIES. THE WARRANTIES SET FORTH IN SECTIONS 10.1 THROUGH
10.4 ABOVE ARE LIMITED WARRANTIES, AND THEY ARE THE ONLY WARRANTIES MADE BY
RAINMAKER. RAINMAKER DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING
WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS REGARDING DESCRIPTION,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE- FURTHER, EXCEPT AS SET
FORTH IN SECTIONS 10.1 THROUGH 10.4 ABOVE, RAINMAKER DOES NOT WARRANT,
GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE
OUTSOURCED SERVICES.
11. NORTEL'S REPRESENTATIONS AND WARRANTIES; LIMITATIONS.
11.1 Customer Warranties. Nortel represents, warrants, and covenants that Nortel
will be solely and directly responsible to each Customer for all representations
and warranties that Nortel makes with respect to the Service Contracts offered
to each Customer. Rainmaker shall have no responsibility whatsoever for
providing any Customer
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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with any remedy in respect of a Service Contract or otherwise, if Nortel
breaches any representation or warranty to such Customer, Nortel shall not state
in any materials and shall not otherwise communicate to any Customer or third
party that Rainmaker has any responsibility for any representation or warranty
that Nortel makes.
11.2 Authority. Nortel represents, warrants, and covenants that Nortel has full
power and authority to enter into this Agreement and to perform its obligations
hereunder.
11.3 No Claims. Nortel represents and warrants that there is no action, suit,
proceeding, or material claim or investigation pending or threatened against
Nortel in any court, or before any governmental department, commission, agency,
or the like, or before any arbitrator that, if adversely determined, might
adversely affect Nortel's ability to meet its obligations hereunder.
11.4 LIMITATION OF WARRANTIES. THE WARRANTIES SET FORTH IN SECTIONS 11.1 THROUGH
11.3 ABOVE ARE LIMITED WARRANTIES AND THEY ARE THE ONLY WARRANTIES MADE BY
NORTEL. NORTEL DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
FURTHER, EXCEPT AS SET FORTH IN SECTIONS 11.1 THROUGH 11.3 ABOVE, NORTEL DOES
NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS
OF THE SERVICE CONTRACTS.
12. RAINMAKER'S INDEMNIFICATION OBLIGATIONS. Rainmaker shall defend, indemnify,
and hold Nortel harmless from and against any and all third party claims,
injuries, damages, obligations, liabilities, causes of action, judgments and
costs, including reasonable attorneys' fees and court costs, arising out of or
in connection with (i) Rainmaker's breach of the warranties set forth in this
Agreement, (ii) any claim based on the alleged negligent, reckless, intentional,
fraudulent or criminal act of Rainmaker or of any director, officer, employee,
agent, or third party subcontractor of Rainmaker, (iii) any claim based on any
injury or death to persons or loss of or damage to property, and which is in any
way connected with or arises out of Rainmaker's performance under this Agreement
or Rainmaker's supply of services, or (iv) infringement by Rainmaker of any
copyrights, patents, trademarks, trade secrets, mask works or other intellectual
property rights. Nortel shall notify Rainmaker promptly and in writing of any
claims subject to indemnification under this Section 12, and Rainmaker shall
have sole control of the defense, settlement, or trial thereof. Nortel shall
provide to Rainmaker, at Rainmaker's request and expense, all reasonable
assistance and all information reasonably available to Nortel for such defense.
13. NORTEL'S INDEMNIFICATION OBLIGATIONS. Nortel shall defend, indemnify, and
hold Rainmaker harmless from and against any and all third party claims,
injuries, damages, obligations, liabilities', causes of action, judgments and
costs, including reasonable attorneys' fees and court costs arising out of or in
connection with (i) Nortel's breach of the warranties set forth in Section 11
above; (ii) any alleged breach of Nomi's Warranties to any Customer with respect
to any Service Contract except to the extent that such warrantie(s) have been
provided by Rainmaker in breach of Section 10.2 herein; (iii) any allegation
that any Service Contract infringes upon any patent right, copyright right,
trademark right associated with the Nortel Marks, trade secret right, or any
other intellectual property right of any third party; (iv) any claim that any
services under any Service Contract are inadequate except to the extent that
such claimed inadequacy is based on non-compliance with representations or
warranties provided by Rainmaker in breach of Section 10.2 herein, or (v) any
claim based on the alleged negligent, reckless, intentional, fraudulent or
criminal act of Nortel or of any director, officer, employee, agent, or third
party subcontractor of Nortel. Rainmaker shall notify Nortel promptly and in
writing of any claims subject to indemnification under this Section 13, and
Nortel shall have sole control of the defense, settlement, or trial thereof.
Rainmaker shall provide to Nortel, at Nortel's request and expense, all
reasonable assistance and all information reasonably available to Rainmaker for
such defense.
14. CONFIDENTIAL INFORMATION. in connection with this Agreement and the
transactions contemplated hereby, each party will have access to confidential
and proprietary information relating to the other party, which may include
business, financial and marketing data and plans, scientific information, source
code and/or trade secrets, Such confidential information includes information
disclosed by Nortel or Rainmaker to the
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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other party that is designated at the time of disclosure as confidential (or
like designation), is disclosed in circumstances of confidence, or would be
understood by Nortel and Rainmaker, exercising reasonable business judgment, to
be confidential. Each party shall treat such information as confidential,
preserve the confidentiality thereof and not duplicate or use such information,
except in connection with transactions contemplated hereby, and in the event of
the termination of this Agreement for any reason whatsoever, each party shall
return to the other all documents, work papers and other materials (including
all derivative's and copies thereof) in whatever medium obtained in connection
with the transactions contemplated hereby and will use all reasonable efforts,
including requiring its employees, consultants and agents who have had access to
such information to keep confidential and not to use any such information,
unless such information is now, or is hereafter, (i) disclosed other than
through act or omission of such parry, in any manner making it available to the
trade or the general public, (ii) known or developed independently by the
receiving parry without any use of such information (as demonstrated by written
records of the receiving party), (iii) disclosed to the recipient by a third
party without restriction, or (iv) required to be disclosed by subpoena or other
process of law, provided that the recipient will notify the disclosing party
promptly of a subpoena or other process of law requiring disclosure. Each party
shall use the same methods to safeguard such information as it uses to protect
its own confidential and proprietary information. Each party acknowledges that
monetary damages may not be adequate in the event of a default of this Section
by the other party, and the disclosing party shall be entitled to seek
injunctive or other affirmative relief and/or to give notice of default pursuant
to this Agreement.
15. TERM/SUSPENSION/TERMINATION.
15.1 Term. Subject to Sections 4.2, 9.6, 15.2 and 15.3, this Agreement shall be
in full force and effect for a 2 year period commencing on the Effective Date,
and thereafter shall be automatically renewed for succeeding terms of 12 months
each; provided that either party may terminate this Agreement at any time by
providing the other party with *** prior written notice of such party's
intention to terminate.
15.2 Termination for Cause. Notwithstanding anything to the contrary herein,
this Agreement may be terminated by either party for cause immediately upon
notice to the other parry. Events constituting cause for termination shall
include:
(i) a breach of any warranty provision in this Agreement;
(ii) a violation of law, including, but not limited to, any law relating to
trademark, copyright, patent, or other intellectual property infringement;
(iii) any assignment by a party in violation of Section 18.2 of this Agreement
without the other party's express written consent;
(iv) either party becomes-insolvent, or makes any assignment for the benefit of
creditors, or enters into any compromise with creditors or a general
agreement for referral or payment with its creditors, or makes or suffers
to bc made any transfer to any person, trustee, receiver, liquidator or
referee for the benefit of creditors, or files a voluntary petition in
bankruptcy, or suffers an involuntary petition in bankruptcy to be filed
against it, or files any petition in any reorganization, arrangement,
compromise, readjustment, liquidation, or dissolution or similar relief
for itself, or becomes unable to pay its debts generally as they become
due,
(v) a breach of Section 14 above, or
(vi) any other material breach or default under this Agreement that is not
remedied within 30 days after the defaulting party has received written
notice of such default or breach in accordance with Section 17.
15.3 Effect of Termination. Except for termination for Rainmaker's breach,
Nortel will pay Rainmaker for the services supplied prior to the effective date
of termination specified in such notice. In the event of termination for
Rainmaker's breach, Nortel will pay all fees and commissions earned prior to the
date of such termination notice. The election to terminate shall not be
construed to be an election of remedies or a waiver thereof, and the party
availing itself of the right to terminate shall also be entitled to each and
every other remedy available at law and/or in equity.
15.4 Post-Termination Deliveries and Assistance. Upon the termination or
expiration of this Agreement for any reason, Rainmaker shall promptly deliver to
Nortel or its designee all documents, and all media or items
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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containing, in whole or part, any proprietary or confidential information of
Nortel in accordance with Section 14, the data in the Rainmaker Database
specific to Nortel, and any other marketing or other information of Nortel that
Nortel reasonably requests. Rainmaker shall retain a copy of all such documents,
media, items or portions thereof that contain Nortel information only for so
long as retention of such records is required for federal and state tax
reporting purposes or under other governmental rules or regulations, after which
any such copies shall be returned to Nortel or destroyed at Nortel's request.
Upon termination of this Agreement for any reason or expiration, Rainmaker will
provide Nortel with termination assistance to ensure the orderly transfer of the
services with minimum disruption to Nortel and/or to an alternate supplier of
services selected by Nortel. Nortel shall pay Rainmaker *** for such termination
assistance. To the extent requested by Nortel, termination assistance will be
provided for as long as reasonably required by Nortel Rainmaker agrees to
provide the following termination assistance: (i) Rainmaker will assist Nortel
in preparing a transition plan and in carrying out the obligations described in
the transition plan, but Nortel will be responsible for managing the transition
plan, (ii) Rainmaker will cooperate in good faith to bring about a smooth and
orderly transition of the services provided to Nortel by an alternate supplier
selected by Nortel, mid (iii) if the termination assistance requires Rainmaker
to incur expenses, Nortel shall reimburse Rainmaker for such expenses, provided
that Rainmaker will provide receipts to Nortel for such expenses and Nortel must
pre-approve such expenses in writing.
16. LIMITATION OF LIABILITY AND ON DAMAGES.
16.1 Liability Limitation. Except for the indemnity obligations herein or any
unauthorized use or disclosure of the other party's confidential information or
intellectual property, in no event shall either party be liable for any damages,
including direct damages, in connection with this Agreement, howsoever caused
whether arising in contract (including fundamental breach) tort (including
negligence) or otherwise in excess the greater of (i) the maximum amount of fees
which Nortel agreed to pay Rainmaker pursuant to this Agreement, or (ii) ***.
16.2 Damages. EXCEPT FOR ANY UNAUTHORIZED USE OR DISCLOSURE OF THE OTHER
PARTY'S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR
EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTIONS OR LOSS OR INACCURACY OF INFORMATION, EVEN IF
THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. NOTICES. All notices permitted or required to be given under this
Agreement shall be in writing and delivered to the parties at their respective
addresses set forth below by (i) hand delivery, (ii) nationally recognized
overnight courier (with tracking and receipt verification capabilities), (iii)
certified or registered mail, postage prepaid, (iv) regular mail, or (v)
facsimile transmission with a confirmation of receipt. Any such notice shall be.
deemed to be effective on the earlier of (a) the day of delivery by hand or
overnight courier, (b) the day of transmission if sent by facsimile, (c) three
days after mailing if sent by mail or courier in the manner set forth above, or
(d) upon receipt:
If to Nortel: ***
Nortel Networks Inc.
0000 Xxxxxxxxxx Xxxx Xx.
Xxxxxxxxx, Xxxx.
XXX 00000 Telephone: ***
Facsimile: ***
With a copy to: Nortel Networks Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: Counsel, Portfolio &
Solutions, Law Group--Supply Management
If to Rainmaker: Rainmaker Services, Inc.
0000 Xxxxx Xxxxx Xxxx
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx, COO
Telephone: ***
Facsimile: ***
With a copy to: Xxxxxxx, Phleger & Xxxxxxxx LLP
One Market, Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: ***
Telephone: ***
Facsimile: ***
Each party may change its respective address or facsimile number by
submitting written notice to the other party in accordance with this
paragraph,
18. GENERAL.
18.1 Severability. If any provision herein is held to be invalid or
unenforceable for any reason, such provisions shall, to the extent of such
invalidity or unenforceability, be of no force or effect and shall be
interpreted, to the extent possible, to achieve the purpose of this Agreement as
originally expressed. The remaining provisions will not be affected and will
continue in full force and effect.
18.2 Assignment. This Agreement shall be binding upon and inure to the benefit
of the subsidiaries, affiliates, successors and permitted assigns of the parties
to this Agreement, Neither party may transfer, sublicense or otherwise assign
this Agreement or delegate any of it rights or obligations hereunder without the
other party's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, Nortel may
assign this Agreement or its rights and obligations hereunder by merger or
otherwise in whole or in part, without the consent of Rainmaker, to any entity
controlled by, controlling or under common control with Nortel or to any entity
which acquires (by merger, consolidation, stock or otherwise) substantially all
of the assets of such party. Any attempted assignment in violation of the
provisions of this Section will be void. Except as outlined in this Section,
with respect to either party, any direct or indirect (i) change in voting,
investment, pecuniary or other form of control, (ii) merger, (iii) stock or
asset acquisition or (iv) We or other disposition of assets other than in the
ordinary course of business shall be deemed to be an assignment- Rainmaker will
not subcontract any portion of its rights, duties or obligations under this
Agreement without Nortel's prior written approval. Even if a subcontract is
approved, Rainmaker will continue to be responsible for all of Rainmaker's
duties and obligations under this Agreement. Rainmaker will ensure that each of
its subcontractors signs a written agreement allowing Rainmaker to terminate its
work for convenience and binding the subcontractor, at a minimum, to the
employer obligations, nondisclosure, ownership, warranty and indemnity
provisions of this Agreement.
18.3 Governing Law; Submission to Jurisdiction. This Agreement shall for all
purposes be governed by and interpreted in accordance with the laws of the State
of New York as those laws are applied to contracts entered into and to be
performed entirely in New York by New York residents, without regard to the
conflicts of laws provisions thereof.
18.4 No Waiver. No delay or failure by either party to exercise or enforce at
any time, any right or provision of this Agreement, shall be considered a waiver
thereof or of such party's right thereafter to exercise or enforce each and
every right and provision of this Agreement. Any waiver of any right hereunder
in a specific circumstance shall not be deemed a waiver of that right in any
other circumstance or a waiver of any other right. To be valid, any such waiver
must be in writing, but need not be supported by consideration.
18.5 Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
18.6 Disclosure of Agreement. Neither party shall disclose the terms or
conditions of this Agreement to third parties except to its legal or financial
advisors without the prior written consent of the other parry unless disclosure
is compelled by operation of law or by an instrumentality of the government
including but not limited to any court,
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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tribunal or administrative agency or as necessary to enforce its rights.
Rainmaker shall not disclose any of the specifics of this Agreement to
Rainmaker's other clients, potential clients or to any third party.
18.7 Publicity. Only in accordance with Section 2.4, Nortel hereby consents to
the use and publication of its name, trademarks mid corporate logos by
Rainmaker. Otherwise, except as required by law, neither party shall issue any
press release, announcement or other public disclosure relating to the subject
matter of this Agreement without the prior written approval of the other party,
Nortel reserves the right to (A) review, upon request, any-sales, marketing and
other materials which incorporate Nortel's name, trademarks or corporate logos,
and (B) disapprove the use of such materials if Nortel determines, in its sole
discretion, that such materials or Rainmaker's use of such materials are
objectionable or otherwise unsuitable.
18.8 Excusable Delay. Neither party shall be liable for any failure or delay
in performing any of its obligations under this Agreement to the extent that
such failure or delay is due to any Act of God, fire, casualty, flood, war,
strike, lockout, epidemic, destruction of production facilities, riot,
insurrection, or any other cause beyond the reasonable control of the party
invoking this section. However, the party so affected shall use reasonable
efforts to remove such causes of non-performance. If any such interference
extends for more than thirty (30) days, Nortel shall have the right, without
obligation or liability, to cancel any services affected by such interference.
Each parry agrees to give the other party prompt notice of any factor,
occurrence or event that may affect or delay the party's ability to perform any
of its obligations hereunder.
18.9 Relationship of the Parties. Each party is an independent contractor and
nothing heroin shall be construed to create a partnership or joint venture
relationship between the parties. Neither Rainmaker nor employees of Rainmaker
shall, in any sense, be considered employees or agents of Nortel, nor shall
Rainmaker or employees of Rainmaker be eligible or entitled to any compensation,
benefits, perquisites or privileges given or extended to Nortel employees, even
if Rainmaker or employees of Rainmaker are later determined under the applicable
statute or regulation, by the relevant authority or under the common law by a
court of competent jurisdiction to be employees of Nortel or are treated as such
under a settlement agreement. For the purposes of this agreement, employees of
Rainmaker will include permitted Rainmaker contractors.
18.10 Attorney Fees. The prevailing party in any legal action to enforce or
interpret this Agreement shall be entitled to recover reasonable attorney's fees
and costs.
18.11 Remedies. The rights and remedies of a party set forth herein with
respect to failure of the other parry to comply with the terms of this Agreement
are not exclusive, the exercise thereof shall not constitute an elevation of
remedies, and the aggrieved party may seek whatever additional remedies are
available in law or equity.
18.12 Complete Agreement/Amendment. This Agreement and Exhibits A through G
constitute the sole and complete statement of obligations of the parties and
supersede all prior oral and written and all contemporaneous oral
understandings, negotiations, commitments, and proposals. Any changes hereto
must be made in writing referencing this Agreement and must be signed by an
authorized representative of both parties. Terms and conditions of purchase
orders and similar documents will be for administrative purposes only and
invalid to the extent they conflict with this Agreement.
18.13 Readings. The headings used in this Agreement are for the convenience of
the parties and for reference purposes only and shall not form a part or affect
the interpretation of this Agreement.
18.14 Survival of Provisions. The following provisions shall survive the
expiration or any termination of this Agreement: Sections 3, 5 (to the extent
that any monthly report is outstanding upon the expiration or earlier
termination of this Agreement), 6 (for so long as Nortel is entitled to inspect
Rainmaker's applicable books and records), 9 (to the extent that any payments
for Outsourced Services are owed to Rainmaker), 11, 12, 13, 14, 15.3, 15.4, 16
and 17, and such subsections of Section I and this Section 18 as are necessary
to give meaning and effect to the foregoing.
18.15 Security. Rainmaker will safeguard the security of Nortel's computer
systems, as set out in Exhibit E, Rainmaker will ensure that all Rainmaker
workers will comply with all on-site security and safety measures required by
Nortel while at any Nortel site.
18.16 Insurance. Rainmaker shall maintain, at its sole cost and expense, the
minimum insurance as set out in Exhibit F.
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filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives this 10th day of July, 2001.
NORTEL NETWORKS INC. RAINMAKER SERVICES, INC.,
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
---------------------------------- ----------------------------------
Signature Signature
Xxxxx Xxxxxx Xxxxx Xxxxxxx
-------------------------------------- --------------------------------------
Name (Print) Name (Print)
Director, Business Operations
Global Enterprises Services Vice President, Sales and Marketing
-------------------------------------- -------------------------------------
Title Title
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filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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EXHIBIT A - SERVICE CONTRACTS
Assurance Services
Service Order Number Description
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
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filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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EXHIBIT B -- LICENSE PARAMETERS
Target Market
-------------
1. ***
2. ***
Territory
---------
***
Excluded Service Contracts
--------------------------
None.
Restricted Accounts
-------------------
None.
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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EXHIBIT C - START-VP SCHEDULE AND ONGOING NORTEL RESPONSIBILITIES.
a. Customer Information
Nortel shall deliver to Rainmaker the following within one week after the
Effective Date:
Customer Database: Nortel shall deliver to Rainmaker a copy of Nortel's
then-current Customer database, including without limitation company and contact
names, addresses, telephone numbers, facsimile numbers, email addresses,
subscription and Service Contract information, product registration information
of Customers and prospective Customers (collectively, "Nortel Database"), and
related documentation for incorporation into a database that Rainmaker shall use
in providing Outsourced Services ("Rainmaker Database") -Nortel shall provide
Rainmaker with the assistance of one or more Nortel employees (other than the
Nortel Liaison) who are skilled in the Nortel Database to enable Rainmaker to
integrate the Nortel Database with the Rainmaker Database at Rainmaker's data
processing facilities- This person shall be responsible for facilitating the
transfer of any incremental data files to Rainmaker and any transaction data
files sent from Rainmaker to Nortel. Upon its receipt of the Nortel Database and
any related documentation, Rainmaker will perform an analysis of the Nortel
Database to determine the extent to which the Nortel Database may be used to
support any proposed marketing plans. At the intervals and following the
procedures set forth in the Business Rules.
Nortel shall update the Nortel Database provided to Rainmaker during the
Start-Up Period. Nortel will also participate in the ongoing exchange of
information set forth in the Business Rules.
b. Nortel Liaison.
By no later than the Effective Date, Nortel shall appoint an employee who shall
function as Rainmaker's primary Nortel contact ("Nortel Liaison") during the
integration process, Such Nortel Liaison shall be highly knowledgeable in all
aspects of Nortel's sales and fulfillment business rules and should be highly
skilled in using the provisioning the services under the Service Contracts.
Following the appointment of the Nortel Liaison, the Nortel Liaison shall be
available to Rainmaker for up to *** to provide Rainmaker with all assistance
that Rainmaker reasonably requests in addressing any problems that may arise in
Rainmaker's provision of the Outsourced Services or Nortel's responsibilities
with respect thereto, developing business and marketing plans, and, in all cases
in which such approval is necessary, approving promotional materials and
activities of Rainmaker.
c. Telephone Access.
Rainmaker and Nortel shall exercise commercially reasonable efforts to
establish, by no later than the Go-Live Date, automatic telephone transfer
capabilities from appropriate Nortel locations to telephone number(s) designated
by Rainmaker to enable Nortel personnel to transfer and/or to enable automatic
forwarding of calls to Rainmaker from Customers seeking any information
regarding Service Contracts. Throughout the term of this Agreement, Nortel shall
maintain, at Nortel's sole expense, the automatic telephone transfer
capabilities from Nortel's Site to Rainmaker's Site.
d. Web Access.
By no later than *** after the Go-Live Date, Nortel shall provide a hypertext
link from Nortel's World Wide Web site ("Nortel's Site"), with the URL set forth
in the Business Rules, to Rainmaker's World Wide Web site ("Rainmaker's Site"),
located at the URL that shall coincide with the DBA filed by Rainmaker to
perform business on behalf of Nortel. Throughout the term of this Agreement,
Nortel shall maintain, at Nortel's sole expense, the hypertext link from
Nortel's Site to Rainmaker's Site.
e. Pre-Sales Technical Support and Training.
By no later than *** after the Effective Date, Nortel shall provide to
Rainmaker's employees, at Nortel's sole expense and at Rainmaker's Site,
pre-sales technical and product support and sales training with respect to all
Service Contracts available from Rainmaker.
f. Business Rules.
Prior to the Go-Live. Date, Rainmaker and Nortel will mutually agree upon
business rules ("Business Rules") governing the day-to-day administration of
this Agreement and the parties' relationship hereunder.
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filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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g. Administration of the Relationship.
Rainmaker's officers and business unit director shall have direct access to
Nortel's decision-making authorities to provide input on issues that may impact
the effectiveness and/or success of the parties' relationship.
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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EXHIBIT D - RAINMAKER OUTSOURCED SERVICES
Margin-Based Services
CRP RENEWAL AND RENTAL SERVICE
Margin-based *** Services include: Marketing Management ***
. Outbound Telesales
. Customer Contact Center
. Online Contract Viewing
. Email Marketing Programs for Renewals
. Back-Office Support
. Standard Reporting
. Ongoing Database Management
Renewal Service Margin/1/ ..................... ***
Rescue Service Margin/1/ ...................... ***
Fee-Based Services Annual
One-Time Recurring
ONE-TIME IMPLEMENTATION FEE
Establish and Integrate "Nortel Network Services" ..... ***
(Based on 200 hours of service)
RENEWAL PROGRAM MARKETING FEES
. Marketing Management Fee ........................... ***
. Fax Marketing Program
Concept Development Fee ....................... ***
Estimated/2/ Variable Fees .................... ***
. Database Enhancement Service ....................... ***
RESCUE PROGRAM MARKETING FEES
. Marketing Management Fee ........................... ***
. Fax Marketing Program
Concept Development Fees ...................... ***
Estimated/2/ Variable Fees .................... ***
. Direct Mail Marketing Program
Concept Development Fee ....................... ***
Estimated/2/ Variable Fees .................... ***
TOTAL FEES
Total One Time Fees ........................... ***
Total Rescue .................................. ***
Total Annual Recurring Fees ................... ***
Payment Terms: All fees will be billed *** with the following payment terms:
*** - Payment for Implementation and Data Enhancement fees --
*** from "go-live".
*** - Payment for Marketing Concept & Management fees due ***.
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filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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(Payment for annual recurring fees in year two are due *** from the anniversary
of the effective date.)
Variable Fees billed as incurred.
_______________
1 ***.
2 ***
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filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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EXHIBIT E - COMPUTER SYSTEMS SECURITY
Access -- Access and use (either on-site or remotely) of Nortel's computer
systems by a non-Nortel party performing under the Agreement (Outside Access
Party) shall be limited only to access and use needed for performance. The
Outside Access Party will provide Nortel with the name of each of its personnel
who will access Nortel's computer system during their performance under the
Agreement (Authorized Workers). Authorized Workers will follow the same computer
system security rules as Nortel personnel. The security requirements will also
apply to Authorized Workers' access and use of Nortel's electronic mail system,
electronic switched network, (either directly or via a direct inward service
access [DISA] feature) or any other Nortel property, equipment or service.
Confidential Information -- All passwords, identification numbers and
information obtained during the Outside Access Party's use of Nortel's computer
system are Confidential Information.
Unauthorized Access -- The Outside Access Party will cooperate in the
investigation of any apparent unauthorized access to Nortel's customers.
Chinese Wall -- The Outside Access Party will ensure that Authorized Workers are
effectively isolated from its personnel who are assigned to the account of a
known or potential Nortel competitor (Competitors). The Outside Access Parry
must implement procedures to segregate Confidential information from Competitors
and Outside Access Party personnel who are not Authorized Workers (Chinese
Wall).
Inadequate Security -- If Nortel notifies the Outside Access Party that the
Chinese Wall is not working and makes a reasonable request to change or replace
the Chinese Wall, the Outside Access Party will comply with Nortel's request,
Security Audit-- Nortel Networks may audit the Chinese Wall. The audits may be
conducted periodically at reasonable intervals,
Notice of Security Breach -- The Outside Access Party will notify Nortel in
writing in the event (a) there is a general breach of security at the outside
Access Party's facilities that may be involved in performing under the
Agreement; or (b) Outside Access Party personnel (that are not Authorized
Workers) or third parties breach the Chinese Wall. At its expense the Outside
Access Party will do whatever is necessary to correct the breach and prevent it
from recurring.
Use of Tools -- To the extent that, in order to fulfill any obligations
hereunder, Rainmaker is provided with access to any Nortel proprietary or third
party tools or data bases, Rainmaker agrees that it shall not, and shall
prohibit its employees from:
a) attempting to reverse engineer, disassemble, reverse translate,
decompile or in any other manner decode any tools;
b) making modifications, enhancements, adaptations or translations, in
whole or in part, to or of any tools or data bases; and
c) copying any tools or data bases, in whole or in part on any medium
except as necessary for the use of the tool or data base.
Termination of Access - Rainmaker acknowledges that Nortel shall be entitled to
discontinue Rainmaker's use and access to any Nortel tool or system at any time.
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filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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EXHIBIT F - INSURANCE
Rainmaker will maintain a Comprehensive General Liability insurance policy
during the term of this Agreement ***. The insurance policy will include third
party liability coverage, protecting Nortel from property damage or personal
injury caused by Rainmaker. The policy will (a) have a minimum combined single
limit of ***, (b) name Nortel as an additional insured party, (c) provide ***
coverage, and (d) indicate on its face that it is primary insurance. ***
Within *** after the Effective Date, Rainmaker will furnish Nortel with a
certificate of insurance and evidence of the required, paid-up coverage. `Me
insurance policy will be in addition to Rainmaker's indemnity obligations under
this Agreement.
Nortel may request Rainmaker to increase its coverage, if Nortel reasonably
believes that Rainmaker's coverage is inadequate. Rainmaker will comply with the
request.
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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EXHIBIT G - TRADEMARKS / SERVICE MARKS
The following trademarks and service marks are approved for use by Rainmaker:
1. 'Nortel Networks logo'
----
2. word xxxx: 'Nortel Networks'
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as "***". A completed version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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