Exhibit 10.13
ALLIANCE AGREEMENT
This Alliance Agreement is entered into on this day of , 2000 by and between
Total Network Solutions, Inc. with offices located at 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 ("TNS") and KPMG Consulting, LLC with offices located
at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX, 00000 ("KPMG").
1. PURPOSE. KPMG, a provider of management consulting and system
integration services, and TNS, a provider of network consulting
services, desire to enter into this Alliance for the purpose of jointly
pursuing global market opportunities for network integration, network
and application performance solutions and related services, as agreed
between the Parties (the "Target Markets") which are intended to result
in new revenue to each company. The Alliance Agreement is intended to
structure a relationship such that both KPMG and TNS view each other as
business partners in both client delivery and new product development
opportunities where jointly offering their respective expertise is
anticipated to be effective.
This Agreement covers certain activities necessary for the Parties to
jointly develop and market specific offerings in the Target Markets.
These activities include but are not limited to joint marketing
programs, sales activities, proposal development, program development
to package-integrated offerings, delivery, and support activities for
joint network integration, and performance solutions. It is intended
that multiple projects will be initiated under this Agreement and will
be managed per the guidelines defined herein.
The parties further intend that an Addendum for Participation will
ultimately be the sole and exclusive vehicle for which KPMG member
firms ("Member Firms") may participate or access this Agreement on a
global basis. Each Member Firm that desires to participate under this
Agreement, receive or have access to TNS' services must execute an
Addendum for Participation in the form attached hereto as Exhibit B. If
such addendum is not secured on behalf of a Member Firm, then such
member Firm shall not be permitted to participate in this Agreement.
2. PERIOD OF PERFORMANCE. This Agreement shall be effective for a period
of one year. The parties may mutually agree to extend the term of this
Agreement for two additional renewal periods. Either party may
terminate this Agreement upon thirty (30) days prior written notice to
the other party.
3. SCOPE OF COOPERATION AND INITIAL PROJECTS. The cooperative efforts will
focus initially on four categories:
3.1 NETWORK INTEGRATION SOLUTIONS. KPMG and TNS will deliver
offerings jointly targeted to network integration and directory
enabled applications for IP based networks with the target market
being enterprise and service provider accounts. The capabilities
offered might include architectural design, network engineering,
and network integration. In addition, both Parties may commit to
working together on projects that result from any CISCO
relationship(s) that either Party has which are
appropriate to the nature of this Alliance relationship. TNS will
to the best of its ability introduce KPMG to existing and future
client opportunities that may require solutions that are aligned
with KPMG's core competencies that include, but are not limited
to, IP Business Strategy, IP Based OSS/BSS integration, new
service creation, directory enabled applications, and service
provisioning (VPN, DSL, Cable modem). In turn, KPMG will to the
best of its ability introduce TNS to existing and future client
opportunities that may require solutions that are aligned with
TNS's core competencies that may include network consulting
services and performance solutions.
3.2 TNS recognizes KPMG has a broad offering of services and
solutions that may be useful to TNS'S installed client base and,
where appropriate, TNS will introduce KPMG or recommend such
services to its clients for the purpose of assisting KPMG in
marketing KPMG's broader offerings and to assist the Parties in
achieving the goals described in Section 5.4 below.
3.3 NETWORK INTEGRATION OFFERINGS PACKAGED AROUND VERTICAL
SOLUTION INITIATIVES. KPMG and TNS will attempt to develop
packaged network integration service and performance offerings
around KPMG led Industry focused Service solution initiatives,
such as, but not limited to Self Service HR, Internet Commerce,
e2e Supply Chain and R2I Oracle. TNS will incentivize its
workforce to introduce client opportunities to KPMG that are
outside its service offerings that are aligned with KPMG's core
solutions such as, but not limited to customer management, ERP,
CRM, supply chain management and e-Engineering.
3.4 GEOGRAPHIC EXPANSION. KPMG IS INTERESTED IN EXPANDING PRESENCE AND
DELIVERY CAPABILITY IN LATIN AMERICA, EUROPE AND ASIA. TNS and
KPMG will work together to develop a market expansion plan for
each region consistent with the available resources of each. To
the extent possible, the parties will attempt to develop a
cooperative relationship with their practices in Europe. The
specifics of the offerings may be similar to the ones identified
in Sections 3.1-3.3 above, or as mutually agreed between the
Parties.
4. TEAMING. The Parties contemplate that their collaboration described in
Section 3 above will enable them to approach mutual customers in the
Target Market in the following ways:
4.1 One Party with an existing customer relationship may
introduce the other Party to that customer, and will thereafter
facilitate the introduced Party's marketing efforts to that
customer - with each Party contracting directly with the mutual
customer; or
4.2 The Parties may team together to jointly present their
respective offerings to a customer, and either: (a) as mutually
agreed one Party will act as "prime contractor" to the customer,
and the other Party will act as a subcontractor to the prime
contractor in order to deliver specialized services and solutions
to the customer; or (b) each Party will contract directly with
the mutual customer for provision of its respective services and
solutions. The Parties will enter into a definitive agreement
before
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undertaking any project contemplated under subsection (a) above.
The Parties agree to develop a Master Services Provisioning Plan
that details how both parties will work together.
Within 30 days of the Effective Date of this Alliance Agreement,
the designated Alliance Managers will develop and publish a
target account program and a project plan to focus their initial
efforts.
5. PERFORMANCE CONDITIONS AND GOALS.
5.1 ALLIANCE MANAGERS. Both Parties shall designate an alliance
manager to serve as the single point of contact to coordinate all
activities between the Parties relative to this Agreement. These
activities include joint account planning sessions, marketing,
technical product development, and sales and solutions delivery.
The following personnel will assist in managing the alliance:
TNS KPMG
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Executive Sponsor Xxx Xxxxx Xxxx Xxxxxxx
Alliance Manager Xxxx Xxxxxxx Xxxxxx Xxxx
5.2 MARKETING AND SALES ACTIVITIES. Both Parties agree to jointly
enter into marketing and sales activities. These activities shall
include, but not be limited to the following: a joint marketing
event calendar including but not limited to seminars and trade
shows, collateral, white papers, a joint sales plan and sales
kit. The Parties shall promptly create a co-marketing and sales
plan which will identify specific targets, activities,
responsibilities, and schedules to guide the Parties in these
efforts. In that plan, both Parties will attempt to describe the
Solution Development Roles and Responsibilities and the service
Delivery Activities and Responsibilities. This plan will be
evaluated quarterly by TNS and KPMG executive management and
updated collaboratively as necessary by both Parties. All
marketing material developed hereunder shall be subject to the
reasonable review and approval of both Parties.
Each Party will be responsible for its own marketing expenses.
5.3 PERFORMANCE REVIEWS. Both Parties agree that the Alliance
performance will be reviewed on a quarterly basis with a status
report being prepared for the Executive sponsor of the respective
organizations. The performance review shall include but not be
limited to status on revenue generated by the alliance year to
date, sales leads being pursued, planned marketing activity,
joint development activity, and any issues or concerns.
5.4 GOALS. Both Parties will attempt to achieve a minimum
performance threshold for the Alliance to be meaningful to both
parties. KPMG will to the best of its ability identify and assist
TNS in closing deals with a revenue of $20,000,000 in the first
year of this Agreement; $30,000,000 in the second year of this
Agreement and
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$50,000,000 in the third year of this Agreement. TNS will to the
best of its ability introduce KPMG, and assist KPMG in obtaining
ten new accounts and in closing deals with a combined revenue of
$25,000,000 each year of this Agreement. For the purposes of this
section a "year" shall be considered a calendar year beginning
January 1, 2000.
6. TERMINATION FOR CAUSE.
6.1 TERMINATION DUE TO MATERIAL CHANGES IN MARKET CONDITIONS.
Should either Party reasonably conclude that there exists little
or no market opportunity for their joint service offerings, then
such Party shall have the option to terminate this Agreement upon
thirty (30) days prior written notice to the other Party.
6.2 TERMINATION FOR FAILURE TO MEET GOALS. If either Party does
not meet it performance threshold under Section 5.4 the other
Party shall have the option to terminate the alliance agreement
upon thirty (30) days prior written notice to the non-performing
Party. If either party determines that the Alliance is not
resulting in mutually meaningful opportunities it may terminate
this Agreement upon thirty (30) days prior written notice to the
other party.
6.3 CHANGE OF CONTROL. For purposes of this Section 6.3 any sale,
assignment, pledge or other transfer of ten percent (10%)or more
of any of the capital stock (or any other securities) of either
Party will constitute a change of control. Upon execution of any
of the above stated activities written notification must be
provided by the Party undergoing the change of control within
fifteen (15) days and the other Party shall have the option to
terminate this Alliance Agreement upon thirty (30) days prior
written notice, except that KPMG shall have the right to assign
this Agreement, without the prior written consent of TNS to the
successor to substantially all of the assets or business of KPMG.
6.4 TERMINATION PROCESS. Should either Party allege that the
other Party has materially breached this Agreement, the aggrieved
Party shall provide notice in writing of such breach to the
alliance manager of the Party that is alleged to be in breach.
In the event that the two alliance managers cannot resolve the
dispute within ten (10) business days, the dispute shall be
escalated to the executive contacts of each company.
In the event the executive contacts are not able to resolve the
dispute within five (5) business days, either Party may terminate
this Agreement immediately upon written notice to the other. In
the event the resolution provides the breaching party with the
opportunity to cure the breach, this Agreement shall terminate
within fifteen (15) days of the date of notice if the breach is
not cured.
If the dispute is resolved, the resolution shall be provided in
writing to both Parties within five (5) business days.
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6.5 EFFECT OF TERMINATION. Unless the parties otherwise agree,
Termination of this Agreement shall not impact any active
engagements in process under a SOW.
In the event of a termination of this Agreement, the Parties
shall have no further obligation to each other, except for the
obligation set forth in Sections 7, 8, 10 and 11.1, 11.2, and
11.3.
Upon any termination of this Agreement, each party shall
immediately return all advertising materials and other
properties, including Proprietary Information of the other Party,
except KPMG may retain one copy to ensure compliance with
professional practices. Both parties shall cease acting in a
manner that would suggest any continuing relationship between the
parties relating to this Alliance.
7. MUTUAL CONFIDENTIALITY.
7.1 MUTUAL CONFIDENTIALITY AGREEMENT. The mutual confidentiality
Agreement that has been executed by the Parties is attached
hereto as Exhibit A. All confidential information exchanged by
the Parties will be governed by the terms of Exhibit A.
7.2 PUBLIC DISCLOSURE. Neither Party may individually disclose
and represent to clients or prospects the Alliance relationship,
without the prior written approval of the other Party except to
the extent necessary to perform its obligations hereunder. All
press releases, public announcement, advertisement, publicity or
any disclosures of a public nature require the approval of each
Party's executive sponsor, except for any disclosures required to
be made by law, regulation or court order. Neither party shall
release any information concerning this Alliance, the parties
relationship or any matters arising under this Agreement without
the prior written approval of each party's executive sponsor.
7.3 MARKS. The Parties agree that they will not use in any way
the other party's name, trade names, trademarks, service marks or
other proprietary designations of that party or its affiliates
(collectively, "Marks") without the prior written consent of that
party. Both parties acknowledges the other's exclusive right,
title and interest in the others' Marks. Neither party will be
deemed by anything in this Agreement, or actions taken pursuant
to it, to acquire any right, title or interest in or to any
Marks, or any portion of any marks.
7.4 MUTUAL NON-SOLICITATION. Each Party will agree not to solicit
employees of the other directly involved in providing the
services under this Agreement during the term of the Alliance
provided that any response by an employee of one Party to any
advertisement of employment opportunities made by the other Party
targeted to the general public shall not be deemed to be a breach
of the foregoing provision.
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8. INTELLECTUAL PROPERTY.
8.1 PRE-EXISTING PRODUCTS AND OTHER INTELLECTUAL PROPERTY. Each
Party shall retain ownership of any of its pre-developed or
separately developed intellectual property (e.g. proprietary
software, commercial off-the-shelf products, platforms, drawings,
reference models, libraries, and technical data). In particular,
the separate property of TNS includes, but is not limited to,
its proprietary methodology, the Productized Service offerings,
and software, tools, specifications, drawings, sketches, models,
samples, records and documentation, as well as copyrights,
trademarks, service marks, ideas, concepts, know-how,
methodologies, techniques, knowledge or data, which have been
originated, developed or purchased by TNS. The separate property
of KPMG includes, but is not limited to, OSS/BSS templates and
methodologies, software, tools, specifications, drawings,
sketches, models, samples, records and documentation, as well as
copyrights, trademarks, service marks, ideas, concepts, know-how,
methodologies, techniques, knowledge or data, which have been
originated, developed or purchased by KPMG. Neither Party shall
have the right to use the intellectual property of the other
without the prior written consent of the other Party, provided
however, to the extent that any separate intellectual property of
either Party is utilized in the development of any service or
software initiatives jointly developed by the Parties under this
Alliance Agreement, the owner of such separate intellectual
property grants to the other a license to use such separate
intellectual property during the term of this Alliance Agreement
only to the extent necessary to meet the initiatives established
herein.
8.2 JOINTLY DEVELOPED INTELLECTUAL PROPERTY. Inventions conceived
solely by employees of TNS shall belong exclusively to TNS.
Inventions conceived solely by employees of KPMG shall belong
exclusively to KPMG. Upon the development of Jointly Developed
Intellectual Property, the Parties shall mutually agree to the
ownership of such Jointly Owned Intellectual Property. Jointly
Owned Intellectual Property shall mean all inventions,
discoveries, technologies, patents, know-how, trademarks,
copyrights, service marks, trade secrets, methods, tools,
routines, techniques, methodologies, know-how, computer programs,
utilities, ideas, process and practices developed jointly by both
Parties under this Agreement. This section may be modified as
required by applicable governmental regulations or the terms of
the prime contract or resultant subcontract between the parties.
Except as stated above, nothing contained in this Agreement shall
be deemed, by implication, estoppel or otherwise, to grant any
right or license in respect of patents, inventions or technical
information at any time owned by the other party.
9. FINANCIAL PERFORMANCE. The intent of this Alliance is to generate new
revenues for each of the Parties. Each Party agrees to use commercially
reasonable efforts to achieve the following:
9.1 ANNUAL REVENUES. Failure to achieve the any hoped for
financial goals specified in Section 5.4 shall not be deemed a
material breach of this Agreement. Neither party shall have any
liability if it fails to successfully promote the products and/or
services of the other party.
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10. REPRESENTATIONS AND WARRANTIES
Each party hereby represents and warrants to the other that:
(a) it has the right and power to enter into this Agreement and to
grant and convey the rights granted;
(b) entering into this Agreement does not violate the terms and
conditions of any other agreement, or any applicable, law, rule or
regulation;
(c) to the best of its knowledge, the information which it may disclose
to the other party, and the process of disclosure and the use of such
information in accordance with this Agreement will not violate any
trade secret, trademark, patent, copyright or other proprietary right
of any third party;
(d) it holds good title or right, free and clear of all liens and
encumbrances, to the Products and Services which it is providing under
this Agreement;
(e) the Products and Services being provided under this Agreement do
not infringe any copyright, trademark, patent, trade secret or other
proprietary right of any third party; and
(f) EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, NEITHER PARTY
MAKES ANY OTHER WARRANTY AND EACH PARTY HEREBY DISCLAIMS, ALL OTHER
WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY COURSE
OF CONDUCT OR PERFORMANCE, CUSTOM OR USAGE OF TRADE, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
11. GENERAL.
11.1 Each Party hereby agrees to indemnify, hold harmless and
defend the other Party from and against any and all claims,
liabilities, losses, expenses (including reasonable attorneys'
fees), fines, penalties, taxes or damages (collectively
"Liabilities") asserted against such other Party by a third party
to the extent such Liabilities result from the claim that the use
of the Indemnifying Party's product constitutes infringement of
any third party's patent issued as of the date of this Agreement
trade secret, trademark or copyright; provided, that such
indemnified Party (i) promptly notifies the indemnifying Party of
any third party claim subject to indemnification hereunder, (ii)
gives the indemnifying Party the right to control and direct the
preparation, defense and settlement of any such claim and (iii)
gives full cooperation to the indemnifying Party for the defense
of same. The foregoing provisions shall not apply to any
infringement arising out of: (i) use of the applicable
intellectual property other than in accordance with applicable
documentation or instructions supplied by the indemnifying Party;
(ii) any alteration, modification or revision of the applicable
intellectual property not expressly authorized in writing by the
indemnifying Party;
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or (iii) the combination of the applicable intellectual property
with materials not supplied by the indemnifying Party.
EXCEPT WITH RESPECT TO SUCH PARTY'S OBLIGATIONS PURSUANT TO
INFRINGMENT HEREOF, EACH PARTY'S MAXIMUM LIABILITY TO THE OTHER
PARTY ARISING FOR ANY REASON RELATING TO THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT RECEIVED UNDER THE SOW TO WHICH THE CLAIM
IS REFERRED.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS),
HOWSOEVER ARISING, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
11.2 INDEPENDENT CONTRACTORS. Each party acknowledges that it is
not and shall not hold itself out as, a joint venturer,
franchisee, partner, employee, servant, representative or agent
of the other party. It is expressly agreed that the parties are
acting as independent contractors for their own account and under
no circumstances shall any employee of one party be deemed an
employee of the other party for any purpose. This agreement shall
not be construed as authority for any party to act for another
party in any agency or other capacity, or to make commitments of
any kind for the account of or on behalf of the other party.
Neither party is responsible to any Customer for the quality of
Services or Products provided by the other party.
11.3 Neither party is or may act as a distributor or agent for
the products or services of the other Party. Each party's
products and services shall be available to a prospective
Customer only through a separate agreement between that party and
the Customer, unless the parties agree to a subcontractor
relationship for a particular engagement. Each party shall
independently develop and price its respective products and
services in a separate agreement between such party and the
Customer or as may be agreed to in a SOW or subcontractor
agreement. No Party shall be or become liable or bound by any
representation, act or omission whatsoever of any other Party.
11.4 All costs incurred by each Party in connection with this
Alliance shall be the responsibility of the Party incurring the
costs, unless a written agreement executed by the Parties'
authorized representatives has been signed that expresses a
specific agreement with respect to certain costs.
11.5 Neither party shall assign, transfer, or subcontract this
Agreement or any of its obligations hereunder without the other
party's express, prior written consent. Notwithstanding the
foregoing, KPMG shall have the right to assign without prior
consent or approval of TNS to the successor to substantially all
of the assets and business of KPMG.
11.6 This Alliance Agreement constitutes the entire agreement
between the Parties and may not be amended excepted in writing
signed by an officer of both Parties. This
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Agreement shall be governed by the laws of New York, without
regard to any conflict of laws provisions.
11.7 This Agreement is non-exclusive. Nothing in this Agreement
shall limit or restrict either party from entering into or
continuing any agreement or other arrangement with any third
party, whether or not similar to this Agreement in nature and
scope.
KPMG CONSULTING, LLC
By:
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Name:
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Title:
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Date:
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TOTAL NETWORK SOLUTIONS, INC.
By:
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Name:
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Title:
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Date:
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EXHIBIT A
CONFIDENTIAL DISCLOSURE AGREEMENT
EFFECTIVE DATE:
In order to protect certain confidential information, TNS Systems, Inc.,
("TNS"), and KPMG LLP ("KPMG") and their corporate affiliates, agree that:
1. DISCLOSING PARTY: The Parties disclosing confidential information (each a
"Discloser or the "Disclosing Party") are KPMG and TNS.
2. PRIMARY REPRESENTATIVE: Each Party's representative for coordinating
disclosure or receipt of confidential information is:
KPMG: Xxxx Xxxxxxx
TNS: Xxx Xxxxx
3. DESCRIPTION OF CONFIDENTIAL INFORMATION: "Confidential Information" means
any information, technical data, or know-how (including, but not limited to,
information relating to research, products, software, services, development,
inventions, processes, engineering, marketing, techniques, customers, pricing,
internal procedures, business and marketing plans or strategies, finances,
employees and business opportunities) disclosed by the Disclosing Party to a
Recipient either directly or indirectly in any form whatsoever (including, but
not limited to, in writing, in machine readable or other tangible form, orally
or visually): (i) that has been marked as confidential; (ii) whose confidential
nature has been made known by Disclosing Party, orally or in writing, to such
Recipient; or (iii) that due to its character and nature, a reasonable person
under like circumstances would treat as confidential.
4. USE OF CONFIDENTIAL INFORMATION: The Party receiving confidential
information ("Recipient") shall make use of the confidential information only
for the furtherance of any mutually agreed upon projects and engagements.
Recipient agrees not to use the Confidential Information for its own use or for
any purposes except those purposes expressly set forth above. Recipient shall
not use the Confidential Information for purposes of unfair or improper
competition. Recipient agrees not to copy, alter, modify, disassemble, reverse
engineer or decompile any of the materials unless permitted in writing by the
Disclosing Party.
5. CONFIDENTIALITY PERIOD: This Agreement and Recipient's duty to hold
confidential information in confidence shall survive any expiration or
termination of this Agreement in perpetuity.
6. DISCLOSURE PERIOD: This Agreement pertains to confidential information that
is disclosed between the Effective Date and the date any Party hereto terminates
this Agreement.
7. STANDARD OF CARE: Recipient agrees not to disclose the Confidential
Information to any third parties or to any of its employees except those
employees who have a need to know the Confidential Information for accomplishing
the stated purposes described herein and where such
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employees shall be made aware that the information is confidential and shall be
under a written contractual restriction on nondisclosure and proper treatment of
confidential information that is no less restrictive than the terms of this
Agreement. Notwithstanding the foregoing, Recipient may disclose the Disclosing
Party's Confidential Information to the extent required by a valid order by a
court or other governmental body or by applicable law; provided, however, that
Recipient will use all reasonable efforts to notify Disclosing Party of the
obligation to make such disclosure in advance of the disclosure so that
Disclosing Party will have a reasonable opportunity to object to such
disclosure.
Recipient shall protect the disclosed confidential information by using the same
degree of care, but no less than a reasonable degree of care, to prevent the
unauthorized use, dissemination, or publication of the confidential information
as Recipient uses to protect its own confidential information of a like nature.
Recipient agrees to advise the Disclosing Party in writing of any
misappropriation or misuse by any person of such Confidential Information of
which Recipient may become aware.
8. EXCLUSIONS: This Agreement imposes no obligation upon Recipient with respect
to information that: (a) was in Recipient's possession before receipt from
Discloser; (b) is or becomes a matter of public knowledge through no fault of
Recipient; (c) is rightfully received by Recipient from a third Party without a
duty of confidentiality; (d) is disclosed by Discloser to a third party without
a duty of confidentiality on the third party; (e) is independently developed by
Recipient without reference to another party's Confidential Information; (f) is
disclosed under operation of law; or (g) is disclosed by Recipient with
Discloser's prior written approval.
9. WARRANTY: Each Discloser warrants that it has the right to make the
disclosures under this Agreement. NO OTHER WARRANTIES ARE MADE BY EITHER PARTY
UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED
"AS IS".
10. MISCELLANEOUS:
a. This Agreement imposes no obligation on any Party to purchase, sell, license,
transfer or otherwise dispose of any technology, services or products.
b. The Parties shall adhere to all applicable laws, regulations and rules
relating to the export of technical data, and shall not export or re-export any
technical data, any products received from Discloser, or the direct product of
such technical data to any proscribed country listed in such applicable laws,
regulations and rules unless properly authorized.
c. This Agreement does not create any agency or partnership relationship.
d. This Agreement represents the entire Agreement between the Parties as to the
matters set forth herein and supersedes all prior discussions, representations
or understandings between them. All additions or modifications to this Agreement
must be made in writing and must be signed by the Parties.
e. This Agreement is made under, and shall be construed according to, the laws
of the State of New York, U.S.A. The parties agree that all litigation or other
legal proceedings under this
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Agreement shall be brought in the state courts of the State of New York and the
United States District Courts located therein and the parties hereby submit to
the exclusive personal and subject matter jurisdiction and venue of such courts.
The validity, interpretation and performance of this Agreement shall be based
upon New York law.
f. Neither party shall communicate any information to the other in violation of
the proprietary rights of any third party.
g. Any materials or documents of Disclosing Party which are furnished to
Recipient, and all copies thereof, at the earlier of Disclosing Party's request
for return of the materials, or the termination of the business relationship
between the Disclosing Party and Recipient, at the Disclosing Party's option,
will either be: (i) promptly returned to the Disclosing Party; or (ii) destroyed
by Recipient (with Recipient providing written certification of such
destruction). However, KPMG may retain one copy for compliance with professional
standards.
h. The Confidential Information shall remain the sole property of the Disclosing
Party. No license is granted to Recipient under any patents, copyrights, mask
work rights or other proprietary rights by the disclosure of any information
hereunder, nor is any warranty made as to such information.
i. Recipient understands and agrees that the Disclosing Party is providing the
Confidential Information to Recipient in reliance upon this Agreement, and
Recipient will be fully responsible to the Disclosing Party for any damages or
harm caused to the Disclosing Party by a breach of this Agreement by Recipient
or any of its officers, directors, employees, consultants or affiliates.
Recipient acknowledges and agrees that a breach of any of its promises or
agreements contained herein will result in irreparable injury to the Disclosing
Party for which there will be no adequate remedy at law, and the Disclosing
Party shall be entitled to apply for equitable relief, including injunction and
specific performance, in the event of any breach or threatened breach or
intended breach of this Agreement by Recipient. Such remedies, however, shall
not be deemed to be the exclusive remedies for any breach of the Agreement but
shall be in addition to all other remedies available at law or in equity.
j. In the event of any litigation or other legal proceedings between the
parties, the prevailing party shall be entitled to reasonable attorneys' fees
and all costs of proceedings incurred in enforcing this Agreement. shall be
governed by the laws of the State of New York, excluding its conflict of law
rules.
k. This Agreement may be amended or modified only in writing signed on behalf of
Recipient and an authorized representative of the Disclosing Party.
l. If any provision of this Agreement is found by a proper authority to be
unenforceable or invalid, such unenforceability or invalidity shall not affect
the other provisions of this Agreement and the unenforceable or invalid
provision shall be construed to be amended in order to avoid such
unenforceablility or invalidity while preserving as closely as possible the
intent of the parties.
m. Neither party shall assign, transfer, or subcontract this Agreement or any of
its obligations hereunder without the other party's express, prior written
consent. Notwithstanding the
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foregoing, (i) to the extent any of the Services will be performed in or relate
to a jurisdiction outside of the United States, KPMG shall have the right,
without the prior consent or approval of TNS, to subcontract the performance of
such Services to the member firm of KPMG International practicing in such
jurisdiction and (ii) KPMG shall have the right to assign without prior consent
or approval of TNS to the successor to substantially all of the assets and
business of KPMG.
n. All notices or reports permitted or required under this Agreement shall be in
writing and shall be by personal delivery, nationally recognized overnight
courier service, facsimile transmission or by certified or registered mail,
return receipt requested, and shall be deemed given upon the earlier of actual
receipt or one (1) day after deposit with the courier service, or receipt by
sender of confirmation of electronic transmission or five (5) days after deposit
in the mail. Notices shall be sent to the addresses set forth at the end of this
Agreement or such other address as either party may specify in writing.
KPMG CONSULTING LLC
Address:
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Title:
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TOTAL NETWORK SOLUTIONS, INC.
Address:
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By:
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Date:
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Name:
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Title:
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EXHIBIT B
ADDENDUM FOR PARTICIPATION TO THE ALLIANCE AGREEMENT]
This Addendum amends the Alliance Agreement between KPMG Consulting, LLC and
Total Network Solutions, Inc. dated ______________, 2000.
The Parties, being the entities doing business in the participating country,
agree that the terms and sections of this Addendum and the performance hereunder
will dictate and supersede any corresponding terms and sections of the initial
Alliance Agreement in connection with the sale and license of Products and
Services by the Parties and the remarketing of those Products and Services by
the parties and their respective affiliates.
The Parties further agree that any fee or payment schedules, conditions for
termination and any and all deemed material default committed by and between the
Parties will abide solely with the Parties executing this Addendum. Neither
Party will seek payment resolution, termination rights, or material default
remedies or cures from any affiliate nor subsidiary of the other in connection
with this Addendum.
THE AGREEMENT IS AMENDED AS FOLLOWS:
A. Territory in Master Agreement is expanded to include: [specify participating
country]
B. Related Terms and Conditions:
C. Offerings covered under this Addendum:
D. Training covered under this Addendum:
E. Business and Market Planning Team/Roles and Responsibilities:
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Except as indicated in this Addendum, the Alliance Agreement shall remain
unchanged.
Agreed and Accepted:
Total Network Solutions, Inc. KPMG Consulting, LLC
By:_________________________ By____________________________
Name: Name:
Title: Title: Sponsoring Partner (local)
Date:_______________________ Date:______________________
APPROVED:
By__________________________
Name:
Title: Sponsoring Partner (in host country)
Date:______________________
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