EXHIBIT 10.18
[XACCT LOGO]
XACCT TECHNOLOGIES
GLOBAL TEAMING AGREEMENT
THIS TEAMING AGREEMENT (together with all Project Supplements hereto, this
"AGREEMENT") is made and entered into as of by and between, XACCT TECHNOLOGIES,
INC.("XACCT"), a Delaware corporation with offices at 0000 Xxxxx Xxxx, Xxxxx
000, Xxxxx Xxxxx, Xxxxxxxxxx 00000, and ("TEAM MEMBER"), a corporation with
offices at . XACCT and the Team Member are sometimes referred to herein
collectively as the "TEAM MEMBERS" and individually as a "TEAM MEMBER".
WITNESSETH:
WHEREAS, from time to time the Team Members identify or are given
opportunities relating to the performance of services in the field of
communications and network operational support systems, including, without
limitation, receiving requests for proposals issued by, and other inquiries
from, third parties (collectively, the "OPPORTUNITIES");
WHEREAS, the Team Members believe that they offer complementary products
and/or services and that a cooperative effort between them will be mutually
beneficial in responding to or pursuing any Opportunities which the parties
mutually agree to respond to or pursue on a joint basis pursuant the terms of
this Agreement; and
WHEREAS, the Team Members desire to enter into this Agreement to provide
for the joint preparation of proposals or other joint marketing and sales
efforts in response to any business Opportunity that the Team Members elect to
jointly pursue, the allocation of work to be performed under any contract
awarded by a customer for the performance of the projects arising from any
Opportunity, and certain other matters, all as more particularly set forth
below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Team Members hereby covenant and agree as follows:
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SECTION 1.
OPPORTUNITIES; ALLOCATION OF RESPONSIBILITY
1.1 This Agreement and the obligations of the Team Members hereunder shall
relate only to those requests for proposals issued by, inquiries from, or other
Opportunities with, third parties ("CUSTOMERS") that the Team Members expressly
agree shall become subject to this Agreement (collectively, the "JOINT
OPPORTUNITIES") and the related projects that the Team Members expressly agree
shall also become subject to this Agreement (collectively, the "JOINT PROJECTS")
as set forth below. Opportunities and related projects shall become Joint
Opportunities and Joint Projects subject to this Agreement. Each Project may
also require additional terms and conditions governing the respective rights and
obligations of the Team Members with respect to the Joint Opportunity and
related Joint Project.
1.2 It is understood and agreed that neither Team Member shall have any
obligation to notify the other Team Member of the existence of any Opportunity
or to agree to subject, or offer to subject, any Opportunity or related project
to this Agreement. It is further understood and agreed that each Team Member has
the absolute right to pursue any Opportunity alone or with third parties, unless
the Team Member receiving or identifying the Opportunity elects, in its sole
discretion, to notify the other of the Opportunity, offers to subject the
Opportunity to this Agreement and the parties do so in accordance with Section
1.1 above. Nothing contained herein shall be deemed to restrict either Team
Member from quoting, offering to sell, or selling to others any items or
services that it may regularly offer for sale, even though such items or
services may be included in a proposal in response to any Joint Opportunity.
1.3 Except for any direct damages arising as a consequence of a breach of
this Agreement, any and all cost, expense or liability to either Team Member
arising out of or related to this Agreement shall be paid by the Team Member
incurring such cost, expense or liability, and neither Team Member shall be
liable or obligated to pay any cost, expense or liability paid or incurred by
the other.
1.4 The Team Members concur that joint marketing and sales efforts are
mutually beneficial and contribute to improved sales opportunities. The Team
Members agree therefore to promote each other's brand and technology as part of
their marketing efforts and collateral wherever appropriate in such cases, but
not limited to, those described below:
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(i) Sales collateral;
(ii) Press releases;
(iii) Sales training;
(iv) Technical sales training;
(v) Hyperlinks between web sites;
(vi) Trade show participation;
(vii) Speaking engagements;
(viii) Advertising.
1.5 The Team Members acknowledge that their respective reputations in the
professional and business community will be of significant benefit in enabling
the Team Members to attain the objectives and the anticipated benefits under
this Agreement. Accordingly, during the term of this Agreement, neither Team
Member shall disparage, defame, or publicly criticize the other Team Member or
its professional staff or their abilities, nor shall either Team Member
undertake actions designed or intended otherwise to impair the other Team
Member's reputation or credentials.
SECTION 2.
SUBSEQUENT CONTRACTS
2.1 In the event that a Team Member is awarded a prime contract by a
Customer, or the Team Members enter into another arrangement with a Customer,
respecting any Joint Opportunity and related Joint Project (each, a "Customer
Contract"), the Team Members agree to negotiate in good faith the terms and
conditions of a subcontract or other arrangement (each, a "Project Contract")
for the portion of such related Joint Project allocated to the other Team Member
pursuant to the applicable Project Supplement, if necessary.
2.2 Each Project Contract shall be consistent with the terms and conditions
of the Customer Contract to which it relates (including, without limitation, any
Statement of Work) and the applicable Project Supplement.
SECTION 3.
TERMINATION
3.1 Except as expressly provided in Section 3 hereof, all rights and
obligations of the Team Members under this Agreement with respect to any Joint
Opportunity and related Joint Project shall terminate as set forth in the
applicable Project Supplement.
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3.2 In the event the rights and obligations of the Team Members under this
Agreement respecting any Joint Opportunity and related Joint Project shall
terminate for any reason other than in the case where the parties enter into a
Project Contract respecting such Joint Project, either Team Member shall have
the right, subject to Section 3 hereof, to pursue business opportunities with
the applicable Customer or any third party contractor awarded a contract by such
Customer or other third parties for work related to such Opportunity; provided
that if such termination or the failure of the Team Members to enter into a
Project Contract with respect to such Joint Opportunity is a result of a breach
of this Agreement by either Team Member, the defaulting Team Member shall not
have the right to pursue such business opportunities.
3.3 Except as expressly provided in Section 3 hereof, all rights and
obligations of the Team Members under this Agreement shall terminate upon the
first to occur of any of the following events:
(a) Expiration of a period of three (3) years following the date
hereof, unless such term is extended by mutual agreement of the parties;
(b) Mutual agreement of the Team Members; or
(c) A material breach by either Team Member of any of the provisions
herein (including in any Project Supplement) and such material breach remains
uncured after a period of thirty (30) days following such Team Member's receipt
of written notice of such material breach from the other Team Member.
In the event the rights and obligations of the Team Members under this Agreement
shall terminate for any reason, the provisions of Section 3.1 above shall apply
to all Joint Projects and Joint Opportunities.
SECTION 4.
CONFIDENTIALITY
4.1 This agreement is contingent upon a duly executed Mutual Non Disclosure
Agreement (NDA), between the Team members.
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SECTION 5.
LIMITED WARRANTY AND LIMITATION OF REMEDIES
5.1 Each Team Member warrants that it has the right to enter into this
Agreement and fully perform all obligations applicable to it hereunder.
5.2 EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY
WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, WITH
RESPECT TO THIS AGREEMENT OR ANY DATA OR INFORMATION PROVIDED HEREUNDER, AND
BOTH PARTIES HEREBY DISCLAIM THE IMPLIED WARRANTIES AND CONDITIONS OF
NONINFRINGEMENT OF THIRD-PARTY RIGHTS, SATISFACTORY QUALITY, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT THERETO.
5.3 Each Team Member shall be responsible for any errors or omissions in
the information which it provides.
5.4 IN NO EVENT SHALL EITHER TEAM MEMBER BE LIABLE TO THE OTHER FOR ANY
LOSS OF PROFITS OR OTHER INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES, EVEN IF SUCH TEAM MEMBER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER TEAM MEMBER BE LIABLE TO
THE OTHER FOR CLAIMS OR DEMANDS BROUGHT AGAINST THE OTHER TEAM MEMBER BY A THIRD
PARTY UNDER THIS AGREEMENT, EVEN IF SUCH TEAM MEMBER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
SECTION 6.
MISCELLANEOUS
6.1 NOTICES. All notices, consents and other communications required or
which may be given under this Agreement shall be deemed to have been duly given
(i) when delivered by hand, (ii) three (3) days after being mailed by registered
or certified mail, return receipt requested, postage prepaid, or (iii) when
received by the addressee if sent by facsimile transmission or by Express Mail,
Federal Express or other express delivery service (receipt requested), in each
case addressed to a party at its address set forth below (or to such other
address(es) as such party may hereafter designate as to itself by notice to the
other party hereto):
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If to XACCT:
XACCT Technologies, Inc.
0000 Xxxxx Xx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile: 0-000-000-0000
If to :
-----
Attn: -----
Facsimile: -----
6.2 MODIFICATION. This Agreement may not be amended or modified, nor may
any right or remedy of any Team Member be waived, unless the same is in writing
and signed by a duly authorized representative of such Team Member.
6.3 NO IMPLIED LICENSE. Nothing hereunder shall be construed as granting
any licenses, whether explicitly, impliedly or by estoppel, to any intellectual
property rights of any Team Member to the other.
6.4 WAIVER. No failure or delay by either Team Member in exercising any of
its rights or remedies hereunder will operate as a waiver thereof, nor will any
single or partial exercise of any such right or remedy preclude any other or
further exercise thereof or the exercise of any other right or remedy. The
rights and remedies of the Team Members provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided under this
Agreement, by law, in equity or otherwise.
6.5 ASSIGNMENT. Neither Team Member may assign or otherwise transfer any of
its rights, duties or obligations under this Agreement without the prior written
consent of the other party, except either Team Member may, upon prior written
notice to the other Team Member (but without any obligation to obtain the
consent of such other Team Member), assign this Agreement or any of its rights
hereunder to any person or entity who succeeds (by purchase, merger, operation
of law or otherwise) to all or substantially all of the capital stock, assets or
business of such Team Member, provided such person or entity agrees in writing
to assume and be bound by all of the obligations of such Team Member under this
Agreement. Any attempted assignment or transfer in contravention of this
Subsection 6.5 shall be void and of no force and effect. This Agreement shall
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be binding upon and inure to the benefit of the Team Members and their
respective legal representatives, successors and permitted assigns.
6.6 INDEPENDENT CONTRACTORS. This Agreement shall not be construed to
establish any form of partnership, agency, or joint venture of any kind between
the Team Members; not to constitute either Team Member as an agent, employee, or
legal representative of the other; and nothing in this Agreement shall create
any relationship between The Team Members other than that of an independent
contractor. Neither Team Member shall have any responsibility or liability for
the actions of the other Team Member, except as specifically provided herein.
Neither Team Member shall have any right or authority to bind or obligate the
other in any manner or make any representation or warranty on behalf of the
other. No profits, losses or costs will be shared under any provision of this
Agreement or as a result of either Team Member's efforts in connection with any
Joint Opportunity and securing an award of any Customer Contract.
6.7 FURTHER ASSURANCES. Without limiting the generality of any provision of
this Agreement, each party agrees that upon request of any other party, it
shall, from time to time, do any and all other acts and things as may reasonably
be required to carry out its obligations hereunder, to consummate the
transactions contemplated hereby, and to effectuate the purposes hereof.
6.8 GOVERNING LAW AND JURISDICTION. This Agreement, including the
performance and enforceability hereof, shall be governed by and construed in
accordance with the laws of the State of California, without reference to the
principles of conflicts of law. Each Team Member hereby submits itself for the
sole purpose of this Agreement and any controversy arising hereunder to the
exclusive jurisdiction of the federal or state courts located in the State of
California, and any courts of appeal therefrom, and waives any objection (on the
grounds of lack of jurisdiction, or forum non conveniens or otherwise) to the
exercise of such jurisdiction over it by any such courts.
6.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Team Members and supersedes all prior proposals, communications,
representations and agreements, whether oral or written, with respect to the
subject matter hereof. The Project Supplements executed in connection herewith
from time to time are incorporated into and made a part of this Agreement to the
same extent as if set forth in full herein; any use of the phrase "this
Agreement" shall include, without limitation, such Project Supplements.
6.10 SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions hereof in any other jurisdiction.
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6.11 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
6.12 HEADINGS AND INTERPRETATION. The headings used in this Agreement are
for convenience of reference only and shall not affect the meaning or
construction of this Agreement.
6.13 NO SOLICITATION. Neither Team Member shall directly or indirectly
solicit, recruit or accept from third parties services provided by, any employee
of the other that participated in the preparation of any proposal or any other
marketing effort relating to a Joint Opportunity or the performance or
negotiation of this Agreement, any Customer Contract or any Project Contract, as
the case may be, during the term of this Agreement and any resulting Customer
Contract that such employee performed services with respect to (if applicable)
and for a period of one (1) year thereafter.
SECTION 7.
APPLICATION
7.1 PRICING. Each Team Member is solely responsible for establishing the
prices for its own products and services.
7.2 BUSINESS OPPORTUNITY. In the event that the Team Members pursue a
business opportunity under this Agreement and fail to persuade a customer to use
their products and/or services jointly through execution of a customer contract,
either Team Member may independently pursue a business opportunity with that
customer. Notwithstanding the foregoing, a Team Member may not pursue a business
opportunity with a customer, if that Team Member breached this Agreement and
such breach prevented the Team Member from serving that customer a joint project
under this Agreement.
7.3 LOCATION. This Agreement shall be applicable on a global basis,
regardless of the location of the Team Member's subsidiaries, branches and
affiliates.
7.4 TRAINING. Each Team Member agrees to provide a standing invitation to
the other Team Member allowing their direct employees to attend their training
courses on a space available basis at a reduced cost.
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IN WITNESS WHEREOF, the Team Members have caused their authorized
representatives to execute this Agreement as of the date first written above.
XACCT TECHNOLOGIES, INC.
0000 Xxxxx Xx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
By:
----------
Name: XXXX XXXXX
----------
Title: President & CEO
By: ----------
Name: ----------
Title: ----------
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