EXHIBIT 10.23
ALLIANCE AGREEMENT
Cisco Systems, Inc., ("Cisco") a corporation organized under the laws of the
state of California and having a place of business at 000 Xxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxxxxxxxxx 00000-0000, and VIP Calling, Inc., a corporation organized
under the laws of the state of Delaware and having a principal place of business
at 000 Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxx, XX 00000 (hereinafter "VIP Calling"),
agree to enter into this agreement (the "Alliance Agreement") as of the date of
execution below (the "Effective Date").
1. RELATIONSHIP OBJECTIVES
This Alliance Agreement creates a non-binding framework of cooperation under
which the parties can explore potential collaborative opportunities for
achieving their respective objectives. The objectives for each party under this
Alliance Agreement are as set forth below:
1.1 VIP CALLING'S OBJECTIVES IN ENTERING INTO THIS ALLIANCE ARE TO:
(a) Be Cisco's reference customer in the creation and validation of
the new market segment in voice over IP network enabled
applications.
(b) Leverage Cisco's expertise into new markets and services.
(c) Qualify for becoming a Cisco Powered Network (TM) on one or
more VIP Calling services.
(d) Accelerate market penetration through joint VIP Calling-Cisco
marketing and sales initiatives.
1.2 CISCO'S OBJECTIVES IN ENTERING INTO THIS ALLIANCE ARE TO:
(a) Leverage VIP Calling as an early adopter "beta" test and
reference customer.
(b) Become VIP Calling's preferred business partner and preferred
end-to-end supplier of networking solutions which will enable
VIP Calling's objectives and further the development of new
products and technologies.
(c) Qualify VIP Calling for Cisco Powered Network (TM) status on
one or more services and assist VIP Calling in a marketing
campaign.
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2. EXECUTIVE SPONSOR AND MANAGEMENT TEAM
Cisco and VIP Calling will each appoint individual(s) to this Alliance Agreement
as executive sponsors responsible for monitoring the relationship, conducting
periodic briefings for each other and their teams, and providing a defined means
of communication with other senior executives. Cisco and VIP Calling will also
appoint individual(s) to this Alliance Agreement as Corporate Champions
responsible for the day-to-day coordination of alliance issues.
3. SCOPE OF ALLIANCE
The parties anticipate at the time of the execution of this Alliance Agreement
that the scope of the Alliance will include some or all of the following joint
activities and commitments which are check-marked below. These activities and
commitments will be the subject of alliance discussions and ultimately of
specific agreements ("Specific Agreements") according to the process set forth
in Section 4 of this Alliance Agreement.
3.1 TECHNOLOGY EVALUATION AND TESTING. The parties intend to engage in
the ongoing evaluation and testing of the new technologies and
products to enable VIP Calling's intelligent network service
offerings. Cisco and VIP Calling will execute agreeable beta test
agreements, VIP Calling will participate in early field trials and
beta tests on technologies relevant to VIP Calling's core business.
Cisco and VIP Calling further agree that VIP Calling will provide
input on product specifications and design. Technology area: Voice
over IP.
3.2 INTERNET BUSINESS CONSULTATION. VIP Calling will be eligible to
participate in Cisco's Trusted Advisor Program. Cisco will provide
VIP Calling with a half day consultation session at Cisco's
Executive Briefing Center, to review VIP Calling's internet business
requirements and xxxxxx knowledge transfer to enable VIP Calling to
deploy internet business solutions.
Cisco will appoint an advisor to periodically contact VIP Calling
and participate in quarterly meetings at either VIP Calling's or
Cisco's headquarters.
Area planned: Internal and external web-enabled business.
3.3 JOINT MARKETING AND PROMOTION.
(a) Cisco and VIP Calling agree to work together in identifying and
pursuing promotional activities designed to enhance the
Alliance Agreement. These efforts may include the promotion of
the relationship by each party within its respective
organization, via website promotion, trade show collaboration,
newsletter highlights, participation in public relations
activities, use of each other's trademarks or ingredient marks.
Areas planned include: 1) Internal and external communications
plan; and 2) Lead Generation and Trade Show
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turnkey programs and support.
3.3.1 INTERNAL COMMUNICATIONS PLAN. Cisco and VIP Calling agree to
create an internal communications plan that is designed to
educate, promote and create awareness of the Alliance between
both companies.
3.3.2 EXTERNAL COMMUNICATIONS PLAN. Cisco and VIP Calling agree to
create an external communications plan designed to promote and
create awareness of the Alliance in the industry. Cisco and
VIP Calling will submit to the other party, for its prior
written approval, any marketing, advertising, press releases,
and all other promotional materials related to the alliance
that references the either or both companies.
3.3.3 LEAD GENERATION PROGRAM AND TRADE SHOW PROGRAMS. Cisco will
provide a turnkey Lead Generation and Trade Show Program for
VIP Calling. The programs have been developed as tools to
enable VIP Calling to conduct marketing campaigns promoting
VIP Calling's business and the Cisco products sold to VIP
Calling's target market. The Lead Generation program includes
an easy method to create a direct mail campaign, collateral,
and web pages. The Trade Show kit includes an exhibit and
running demo. Both programs include a training kit and a lead
tracking mechanism.
3.4 JOINT SALES INITIATIVE. Cisco will work with VIP Calling to initiate
a phased joint sales initiative to accelerate VIP Calling and
Cisco's market penetration in mutually beneficial target markets.
Cisco will introduce VIP Calling to Cisco country sales managers for
sponsorship as a potential reference to Cisco customer base. Global
phase plan is as follows: Phase one: Asia; Phase two: Eastern and
southern Europe; phase three: Latin America.
3.5 INGREDIENT BRANDING. VIP Calling may participate in Cisco's
ingredient branding program, Cisco Powered Network. VIP Calling
agrees to meet the then current criteria for certifying at least one
(1) service as "Cisco Powered Network" within three (3) months of
the Effective Date of the Alliance Agreement.
4. ALLIANCE PROJECT PROCESS
WRITTEN AGREEMENTS. The terms of projects undertaken by the parties pursuant to
this Alliance Agreement will be set forth in Specific Agreements which will be
identified in an Addendum to this Alliance Agreement. Each Specific Agreement
will contain the applicable information set forth in the template attached at
Exhibit B.
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5. COST SHARING, REIMBURSEMENT OF COSTS OR PAYMENTS BETWEEN ALLIANCE MEMBERS
PENDING SPECIFIC AGREEMENTS
All costs incurred by either party in connection with the Alliance Agreement
shall be the sole responsibility of the party incurring the costs.
6. CONFIDENTIAL INFORMATION AND PUBLICITY
6.1 NON-DISCLOSURE AND USE RESTRICTION. Except as set forth below in
paragraph 7.2, the parties agree to maintain the confidentiality of,
and refrain from using, other than for the express purpose of this
Alliance Agreement or any of the Specific Agreements, confidential
or proprietary information relating to the other party's business,
including without limitation, the contents of this Alliance
Agreement, technical processes and formulas, source codes, names,
addresses and information about users and advertisers, product
designs, sales, costs and other unpublished financial information,
product plans, and marketing data; provided that to the extent that
such information is publicly known, already known by, or already in
the possession of the non-disclosing party; is independently
developed by the non-disclosing party; is thereafter rightly
obtained by the non-disclosing party from a source other than the
disclosing party; or is required to be disclosed by law, regulation,
or court order and then only after prompt prior notification to the
other party of such required disclosure; then there shall be no
restriction on the use or disclosure of such information. The
obligations of this paragraph shall be in effect during the term of
this Alliance Agreement and for two (2) years following expiration
or termination hereof.
6.2 PUBLICITY. Any marketing, advertising, promotional materials, press
releases or other public announcements regarding this Alliance
Agreement, or any of the Specific Agreements, shall not be made
without prior written consent of both parties, except as required by
law, in which case the other party shall be consulted, to the extent
reasonably practicable, as to the content and timing of such
release, announcement or statement.
7. TERM AND TERMINATION
7.1. The Alliance Agreement commences on the Effective Date and will
continue in effect for three (3) years ("Term").
7.2. (a) Either party may terminate this Alliance Agreement for any
reason or no reason and at any time by providing thirty (30)
days written notice to the other party.
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(b) Either party may immediately terminate this Alliance Agreement
upon written notice to the other party in the event of a
material breach which remains uncured thirty (30) days after
previous written notice by the nondefaulting party.
7.3 In the event of termination of this Alliance Agreement, neither
party shall have any obligation to continue the activities set forth
herein [or in any Statement of Work], and all obligations and rights
of the parties shall terminate, with the exception of Sections 7.1
(but only to the extent that section provides for survival of
termination), 7.2 (Publicity), 10.4 (Consequential Damages Waiver)
and 10.7 (Dispute Resolution) of this Alliance Agreement, which
provisions shall survive expiration or termination. Upon
termination, the parties agree to promptly return to each other all
proprietary and confidential information of the other party.
8. PURCHASE OF CISCO PRODUCTS AND SERVICES
8.1 In the event that VIP Calling desires to purchase Cisco products and
services, VIP Calling agrees to place such orders pursuant to the
then current agreement in place between Cisco and VIP Calling for
such purchases.
8.2 PREFERRED VENDOR COMMITMENT. In consideration of Cisco's commitment
of the resources described herein, VIP Calling hereby appoints Cisco
as its preferred vendor. VIP Calling will purchase at least eighty
percent (80%) of its total net purchases of any networking equipment
from Cisco, where Cisco has a solution. Networking equipment is
defined as equipment operating at layer two and/or layer three of
the ISO model. VIP Calling forecasts that over the term of this
Alliance Agreement, this commitment shall result in the purchase of
$ten million ($10,000,000) of Cisco products which would not have
otherwise been purchased.
10. GENERAL PROVISIONS
10.1. AMENDMENT. No change, amendment or modification of any provision of
this Alliance Agreement shall be valid unless set forth in a written
instrument signed by both parties.
10.2. ENTIRE AGREEMENT. This Alliance Agreement sets forth the entire
agreement and supersedes any and all prior or contemporaneous
agreements and representations, written or oral, of the parties with
respect to the transactions set forth herein. The parties
acknowledge that as of the date hereof, no binding commitments exist
between the parties with respect to the subject matter of this
Alliance Agreement except as may be provided herein.
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10.3. ASSIGNMENT. Neither this Alliance Agreement, nor any rights
hereunder in whole or in part, shall be assignable or otherwise
transferable by either party without the express written consent of
the other.
10.4. CONSEQUENTIAL DAMAGES WAIVER. EXCEPT FOR A MATERIAL BREACH OF A
PARTY'S CONFIDENTIALITY OBLIGATION OR A VIOLATION OF A PARTY'S
INTELLECTUAL PROPERTY RIGHTS, NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER
ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY DIRECT, INCIDENTAL, INDIRECT, PUNITIVE,
SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT
LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT. ALL
LIABILITY UNDER THIS ALLIANCE AGREEMENT IS CUMULATIVE AND NOT PER
INCIDENT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10.5. CONFLICT. In the event of conflict between this Alliance Agreement
and any Statement of Work under this Alliance Agreement, the
Statement of Work shall control as to the subject matter of the
Statement of Work.
10.6. CONSTRUCTION. In the event that any provision of this Alliance
Agreement conflicts with the law under which this Alliance Agreement
is to be construed, or if any such provision is held invalid by a
court with jurisdiction over the parties to this Alliance Agreement,
such provision shall be deemed to be restated to reflect as nearly
as possible the original intentions of the parties in accordance
with applicable law, and the remainder of this Alliance Agreement
shall remain in full force and effect.
10.7. DISPUTE RESOLUTION. Each party agrees that any dispute between the
parties relating to this Alliance Agreement will first be submitted
in writing to a panel of two senior executives of Cisco and VIP
Calling, who shall promptly meet and confer in an effort to resolve
such dispute through good faith consultation and negotiation. Each
party's executives shall be identified by notice to the other party,
and may be changed at any time thereafter also by notice to the
other. In the event the executives are unable to resolve any dispute
within thirty (30) days after submission to them, either party shall
be free to seek any available remedies it may have at law or at
equity.
10.8. INDEPENDENT CONTRACTORS. The parties to this Alliance Agreement are
independent contractors. Neither party is an agent, representative,
or partner of the other party. Neither party shall have any right,
power, or authority to enter into any agreement for, or on behalf
of, or incur any obligation or liability of, or to otherwise bind,
the other party. This Alliance Agreement shall not be interpreted or
construed to
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create an association, agency, joint venture, or partnership between
the parties or to impose any liability attributable to such a
relationship upon either party.
10.9. NO WAIVER. The failure of either party to insist upon or enforce
strict performance by the other party of any provision of this
Alliance Agreement, or to exercise any right under this Alliance
Agreement, shall not be construed as a waiver or relinquishment of
such party's right to enforce any such provision or right in any
other instance.
10.10. NOTICE. Any notice, approval, request, authorization, direction, or
other communication under this Alliance Agreement shall be given in
writing, directed to the addresses of the parties below, and shall
be deemed to have been delivered and given for all purposes: (i) on
the delivery date if delivered by electronic mail; (ii) on the
delivery date if delivered personally to the party to whom the same
is directed; (iii) one (1) business day after deposit with a
commercial overnight carrier with written verification of receipt;
or (iv) five (5) business days after the mailing date whether or not
actually received, if sent by U.S. mail, return receipt requested,
postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available to the Contact at the
address of the party to whom the same is directed.
10.11. FORCE MAJEURE. Neither party shall be deemed in violation of this
Alliance Agreement if it is prevented from performing any of the
obligations under this Alliance Agreement by reason of severe
weather and storms; earthquakes or other natural occurrences;
strikes or other labor unrest; power failures; nuclear or other
civil or military emergencies; acts of legislative, judicial,
executive or administrative authorities; or any other circumstances
which are not within its reasonable control.
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10.12. GOVERNING LAW. This Agreement and any action related thereto shall
be governed, controlled, interpreted and defined by and under the
laws of the State of California and the United States, without
regard to the conflicts of laws provisions thereof. The parties
specifically disclaim the UN Convention on Contracts for the
International Sale of Goods.
IN WITNESS WHEREOF, the parties hereto have executed this Alliance
Agreement as of the date first above written.
CISCO SYSTEMS, INC. VIP CALLING, INC.
By: /s/ X. X. Xxxx By: /s/ Xxxxxx X. XxxxxxXxxx
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Name: X. X. Xxxx Name: Xxxxxx X. XxxxxxXxxx
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Title: Vice President Title: Executive Vice President
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Date: 1/4/99 Date: 12/7/98
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