Exhibit 10.27
Non Technical Services Agreement
This Agreement dated as of 2/12/2001 ("Effective Date"), between International
Business Machines Corporation ("Buyer") and Rainmaker Systems, Inc.
("Supplier"), establishes the basis for a multinational procurement relationship
under which Supplier will provide Buyer the Deliverables and Services described
in SOWs issued under this Agreement.
1.0 Definitions
"Affiliates" means entitles that control, are controlled by, or are under common
control with a party to this Agreement.
"Agreement" means this agreement and any relevant Statements of Work ("SOW"),
Work Authorizations ("WA"), and other attachments or appendices specifically
referenced in this Agreement.
"Buyer" means either Buyer or one of its Affiliates which has signed a PA.
"Deliverables" means items that Supplier prepares for or provides to Buyer as
described in a SOW.
"Developed Works" means Deliverables developed in the performance of this
Agreement that Buyer will own.
"Participation Agreement" or "PA" means an agreement signed by one or more
Affiliates which incorporates by reference the terms and conditions in this
agreement, any relevant SOW, and other attachments or appendices specifically
referenced in the PA.
"Personnel" means agents, employees or subcontractors engaged or appointed by
Buyer or Supplier.
"Prices" means the agreed upon payment and currency for Deliverables and
Services, including all applicable fees, payments and taxes, as specified in the
relevant SOW and/or WA.
"Services" means work that Supplier performs for Buyer as described in a SOW.
"Statement of Work" or "SOW" means any document attached to or included in this
Agreement which describes the Deliverables and Services, including any
requirements, specifications or schedules.
"Supplier" means either Supplier or one of its Affiliates which has signed a PA.
"Work Authorization" or "WA" means Buyer's authorization in either electronic or
tangible form for Supplier to conduct transactions under this Agreement (i.e., a
purchase order, ▇▇▇▇ of lading, or other Buyer designated document). A SOW is a
WA only if designated as such in writing by Buyer.
2.0 Statement of Work
Supplier will provide Deliverables and Services as specified in the relevant SOW
only when specified in a WA. Supplier will begin work only after receiving WA
from Buyer. Buyer may request changes to a SOW and Supplier will submit to
Buyer the impact of such changes. Changes accepted by Buyer will be specified
in an amended SOW or change order signed by both parties.
________________________
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.
1 of 6
3.0 Term and Termination
3.1 Term
Deliverables and Services acquired by Buyer on or after the Effective Date will
be covered by this Agreement. This Agreement will remain in effect until
terminated.
3.2 Termination of this Agreement
Either party may terminate this Agreement, without any cancellation charge, for
a material breach of the Agreement by the other party or if the other party
becomes insolvent or files or has filed against it a petition in bankruptcy
("Cause"), to the extent permitted by law. Such termination will be effective
at the end of a thirty (30) day written notice period if the Cause remains
uncured. Either party may terminate this Agreement without Cause when there are
no outstanding SOWs or WAs.
3.3 Termination of a SOW or WA
Buyer may terminate a SOW or WA with Cause effective immediately or without
Cause on written notice. Upon termination, in accordance with Buyer's written
direction, Supplier will immediately: (i) cease work; (ii) prepare and submit
to Buyer an itemization of all competed and partially completed Deliverables and
Services; (iii) deliver to Buyer Deliverables satisfactorily completed up to the
date of termination at the agreed upon Prices in the relevant SOW and/or WA; and
(iv) deliver upon request any work in process. In the event Buyer terminates
without Cause, Buyer will compensate Supplier for the actual and reasonable
expenses incurred by Supplier for work in process up to and including the date
of termination, provided such expenses do not exceed the Prices.
4.0 Pricing
Supplier will provide Deliverables and Services to Buyer for the Prices. Except
for pre-approved expenses specified in the relevant SOW and/or WA, the Prices
for Deliverables and Services specified in a WA and accepted by Buyer will be
the only amount due to Supplier from Buyer.
5.0 Payments and Acceptance
Terms for payment will be specified in the relevant SOW and/or WA. Payment of
invoices will not be deemed acceptance of Deliverables or Services, but rather
such Deliverables or services will be subject to inspection, test, acceptance or
rejection in accordance with the acceptance or completion critics as specified
in the relevant SOW and/or WA. Buyer may, at its option, either reject
Deliverables or Services that do not comply with the acceptance or completion
criteria for a refund, or require Supplier, upon Buyer's written instruction, to
repair or replace such Deliverables or re-perform such Service, without charge
and in a timely manner.
6.0 Electronic Commerce
To the extent permitted by local law, the parties will conduct transactions
using an electronic commerce approach under which the parties will
electronically transmit and receive legally binding purchase and sale
obligations ("Documents"), including electronic credit entries transmitted by
Buyer to the Supplier account specified in the relevant SOW and/or WA. Each
party, at its own expense, will provide and maintain the equipment, software,
services and testing necessary for it to effectively and reliably transmit and
receive such Documents. Either party may use a third party service provider for
network services, provided the other party is given sixty (60) days prior
written notice of any changes to such services. A Document will be deemed
received upon arrival at the receiving party's mailbox or Internet address. The
receiving party will promptly notify the originating party if a Document is
received in an unintelligible form, provided that the originating party can be
identified. In the absence of such
________________________
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.
2 of 7
notice, the originating party's record of the contents of such Documents will
prevail. Each party will authenticate Documents using a digital signature or
User ID, as specified by Buyer, and will maintain security procedures to prevent
its unauthorized use.
7.0 Warranties
7.1 Ongoing Warranties
Supplier makes the following ongoing representations and warranties: (i) it has
the right to enter into this Agreement and its performance of this Agreement
will comply, at its own expense, with the terms of any contract, obligation,
law, regulation or ordinance to which it is or becomes subject (including but
not limited to all applicable export and import laws); (ii) no claim, lien or
action exists or is threatened against Supplier that would interfere with
Buyer's rights under this Agreement; (iii) Deliverables are safe for any use
consistent with and will comply with the warranties, specifications and
requirements in this Agreement; (iv) Services will be performed using reasonable
care and skill and in accordance with the relevant SOW and/or WA; (v)
Deliverables and Services which interact in any capacity with date data are Year
2000 ready such that when used in accordance with their associated documentation
they are capable of correctly processing, providing, receiving and displaying
date data, as well as exchanging accurate date data with all products with which
the Deliverables or Services are intended to be used within and between the
twentieth and twenty-first centuries; (vi) Deliverables and Services which
interact in any capacity with monetary data are euro ready such that when used
in accordance with their associated documentation they are capable of correctly
processing monetary data in the euro denomination and respecting the euro
currency formatting conventions (including the euro sign); (vii) Deliverables
and Services do not infringe any privacy, publicity, reputation or intellectual
property right of a third party; and (viii) all authors have agreed not to
assert their moral rights (personal rights associated with authorship of a work
under applicable law) in the Deliverables, to the extent permitted by law.
THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
7.2 Warranty Redemption
Subject to Section 5.0 Payments and Acceptance, if Deliverables or Services do
not comply with the warranties in this Agreement, Supplier will repair or
replace Deliverables or re-perform Services, without charge and in a timely
manner. If Supplier fails to do so, Buyer may repair or replace Deliverables or
re-perform Services and Supplier will reimburse Buyer for actual and reasonable
expenses.
8.0 On Time Delivery
Deliverables or Services will be delivered as specified in the relevant SOW
and/or WA. If Supplier cannot comply with a delivery commitment, Supplier will
promptly notify Buyer of a revised delivery date and Buyer may: (i) cancel
without charge Deliverables or Services not yet delivered; (ii) procure such
Deliverables or Services elsewhere and charge Supplier the cost differential;
and (iii) exercise all other remedies provided at law, in equity and in this
Agreement.
9.0 Intellectual Property
All Developed Works belong exclusively to Buyer and are works made for hire. If
any Developed Works are not owned by Buyer by operation of law, Supplier will
assign the ownership of copyrights in such Developed works to Buyer. Supplier
grants Buyer all intellectual property rights licensable by Supplier which are
necessary for Buyer to
________________________
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.
3 of 7
use and sell the Deliverables and Services. This Agreement does not grant either
party the right to use the other party's or their Affiliates' trademarks, trade
names or service marks.
10.0 Indemnification
Supplier will defend, hold harmless and indemnify, including legal fees, Buyer
and Buyer Personnel against claims that arise or are alleged to have arisen as a
result of negligent or intentional acts or omissions of Supplier or Supplier
Personnel or breach by Supplier of any term of this Agreement.
11.0 Limitation of Liability
Except for liability under the Section entitled Indemnification, in no event
will either party be liable to the other for any lost revenues, lost profits,
incidental, indirect, consequential, special or punitive damages. In no event
will either party be liable for the respective actions or omissions of its
Affiliates under this Agreement.
12.0 Supplier and Supplier Personnel
Supplier is an independent contractor and this Agreement does not create an
agency relationship between Buyer and Supplier or Buyer and Supplier Personnel.
Buyer assumes no liability or responsibility for Supplier Personnel. Supplier
will: (i) ensure it and Supplier Personnel are in compliance with all laws,
regulations, ordinances and licensing requirements; (ii) be responsible for the
supervision, control, compensation, withholdings, health and safety of Supplier
Personnel; (iii) ensure Supplier Personnel performing Services on Buyer's
premises comply with the On Premises Guidelines; and (iv) inform Buyer if a
former employee of Buyer will be assigned work under this Agreement, such
assignment subject to Buyer approval.
13.0 Insurance
Supplier will maintain at its expense: (i) comprehensive general or public
liability insurance with a minimum limit per occurrence or accident of
$1,000,000 (or local currency equivalent); (ii) workers' compensation or
employer's liability as required by local law, such policies waiving any
subrogation rights against Buyer; and (iii) automobile liability insurance as
required by local statute but not less than $1,000,000 (or local currency
equivalent) if a vehicle will be used in the performance of this Agreement.
Insurance required under this Section will name Buyer as an additional insured
with respect to Buyer's insurable interest, will be primary or non-contributory
regarding insured damages or expenses, and will be purchased from insurers of
sound internationally recognized financial standing.
14.0 General
14.1 Amendments
This Agreement may only be amended by a writing specifically referencing this
Agreement which has been signed by authorized representatives of the parties.
14.2 Assignment
Neither party will assign their rights or delegate or subcontract their duties
under this Agreement to third parties or Affiliates without this prior written
consent of the other party, such consent not to be withheld unreasonably, except
that Buyer may assign this Agreement in conjunction with the sale of a
substantial part of its business utilizing this Agreement. Any unauthorized
assignment of this Agreement is void.
________________________
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.
4 of 7
14.3 Choice of Law and Forum; Waiver of Jury Trial; Limitation of Action
This Agreement and the performance of transactions under this Agreement will be
governed by the laws of the country where the Buyer entering into the relevant
agreement or PA is located, except that the laws of the State of New York
applicable to contracts executed in and performed entirely within that State
will apply if any part of the transaction is performed within the United States.
The parties expressly waive any right to a jury trial regarding disputes related
to this Agreement. Unless otherwise provided by local law without the
possibility of contractual waiver or limitation, any legal or other action
related to this Agreement must be commenced no later than two (2) years from the
date on which the cause of action arose.
14.4 Communications
All communications between the parties regarding this Agreement will be
conducted through the parties' representatives as specified in the relevant SOW
and/or WA.
14.5 Counterparts
This Agreement may be signed in one or more counterparts, each of which will be
deemed to be an original and all of which when taken together will constitute
the same agreement. Any copy of this Agreement made by reliable means (for
example, photocopy or facsimile) is considered an original.
14.6 Exchange of Information
Unless required otherwise by law without the possibility of contractual waiver
or limitation, all information exchanged by the parties will be considered non-
confidential. If the parties require the exchange of confidential information,
such exchange will be made under a confidentiality agreement. The parties will
not publicize the terms of this Agreement, or the relationship, in any
advertising, marketing or promotional materials without prior written consent of
the other party except as may be required by law, provided the party publicizing
obtains any confidentiality treatment available. Supplier will use information
regarding this Agreement only in the performance of this Agreement. For any
business personal information relating to Supplier Personnel that Supplier
provides to Buyer, Supplier has obtained the agreement of the Supplier Personnel
to release the information to Buyer and to allow Buyer to use such information
in connection with this Agreement.
14.7 Freedom of Action
This Agreement is nonexclusive and either party may design, develop,
manufacture, acquire or market competitive products or services. Buyer will
independently establish prices for resale of Deliverables or Services and is not
obligated to announce or market any Deliverables or Services and does not
guarantee the success of its marketing efforts, if any.
14.8 Force Majeure
Neither party will be in default or liable for any delay or failure to comply
with this Agreement due to any act beyond the control of the affected party,
excluding labor disputes, provided such party immediately notifies the other.
14.9 Obligations of Affiliates
Affiliates will acknowledge acceptance of the terms of this Agreement through
the signing of a P.A. before conducting any transaction under this Agreement.
________________________
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.
5 of 7
14.10 Prior Communications and Order of Precedence
This Agreement replaces any prior oral or written agreements or other
communication between the parties with respect to the subject matter of this
Agreement, excluding any confidential disclosure agreements. In the event of
any conflict in these documents, the order of precedence will be: (i) the
quantity, payment and delivery terms of the relevant WA; (ii) the relevant SOW;
(iii) this agreement; and (iv) the remaining terms of the relevant WA.
14.11 Record Keeping and Audit Rights
Supplier will maintain (and provide to Buyer upon request) relevant business and
accounting records to support invoices under this Agreement and proof of
required permits and professional licenses, for a period of time as required by
local law, but not for less than three (3) years following completion or
termination of the relevant SOW and/or WA. All accounting records will be
maintained in accordance with generally accepted accounting principles.
14.12 Severability
If any term in this Agreement is found by competent judicial authority to be
unenforceable in any respect, the validity of the remainder of this Agreement
will be unaffected, provided that such unenforceability does not materially
affect the parties' rights under this Agreement.
14.13 Survival
The provisions set forth in the following sections and Subsections of this
Agreement will survive after termination of this Agreement and will remain in
effect until fulfilled: "Ongoing Warranties," "Intellectual Property",
"Indemnification", "Limitation of Liability", "Record Keeping and Audit Rights",
"Choice of Law and Forum; Waiver of Jury Trial; Limitation of Action", "Exchange
of Information", and "Prior Communication and Order of Precedence".
An effective waiver under this Agreement must be in writing signed by the party
waiving its right. A waiver by either party of an instance of the other party's
noncompliance with any obligation or responsibility under this Agreement will
not be deemed a waiver of subsequent instances.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
International Business Machines Corporation Rainmaker Systems, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ April 5, 2001 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ April 6, 2001
----------------------------------------------- --------------------------------------------------
Buyer Signature Date Supplier Signature Date
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------- --------------------------------------------------
Printed Name Printed Name
Procurement Professional, Global Procurement V.P. Sales & Marketing
----------------------------------------------- --------------------------------------------------
Title & Organization Title & Organization
----------------------------------------------- --------------------------------------------------
Buyer Address: Supplier Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇, Mailstop 5E1 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇
________________________
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.
6 of 7
Confidential Disclosure Agreement
Supplement for Disclosure
Referenced Agreement (CDA) #4900ES1038
Supplement to CDA #4901AD0004
With respect to the Information identified below, the terms and conditions in
the referenced Agreement, as modified by any terms and conditions identified
below, will apply to disclosure hereunder.
Discloser: X IBM X You
------ -----
Initial disclosure date: 1/29/2001
--------------------
Final disclosure date: 3/01/2002
--------------------
Discloser's Point of Contact ***
-------------- --------------- ---------------
Name Telephone # e-mail
Recipient's Point of Contact ***
-------------- --------------- ---------------
Name Telephone # e-mail
Non-confidential description of information to be disclosed:
All deliverables by Supplier to Buyer for Statement of Work #4901AD0003.
All data fees to Supplier from Buyer for Statement of Work #4901AD0003
Additional or different terms and conditions (if any):
None.
This Supplement and the referenced agreement are the complete and exclusive
Agreement regarding disclosure hereunder.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
International Business Machines Corporation Rainmaker Systems, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 4/5/01 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 4/6/01
------------------------------------------------------- -----------------------------------------------------------
Signature Date Signature Date
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------------- -----------------------------------------------------------
Printed Name Printed Name
Procurement Professional, IBM Global Procurement V.P. Sales & Marketing
------------------------------------------------------- -----------------------------------------------------------
Title & Organization Title & Organization
------------------------------------------------------- -----------------------------------------------------------
International Business Machines Corporation Address: Rainmaker Systems, Inc. Address
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇
________________________
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.
1 of 1
Non Technical Services Agreement
Statement of Work
Agreement #4901AD0002
80W #4901AD0003
This Statement of Work ("SOW") #4901AD0003 adopts and incorporates by reference
the terms and conditions of Non Technical Services Agreement #4901AD0002
("Agreement") between International Business Machines Corporation and Rainmaker
Systems, Inc. This SOW is effective upon execution of the Agreement and the SOW
and will remain in effect until May 10, 2002. Transactions performed under this
SOW will be conducted in accordance with and be subject to the terms and
conditions of this SOW, the Agreement and any applicable Work Authorizations
("Was"). This SOW is a WA.
1.0 SCOPE OF WORK
***
2.0 DEFINITIONS
As used in this Statement of Work (SOW), the following terms shall have the
following meanings:
"Customer" is the entity identified by IBM as the customer to an existing
Subscription Contract that Buyer will be authorized to contact solely for
the purpose of renewing that Subscription Contract. ***
"Discontinued" means the Subscription Contract has been deleted from the
customer inventory record.
"List Price" means the non-discounted price set forth by Buyer for the
Subscription offering.
"Startup Services" means database integration and enhancement, report
writing, enhancements to software applications, work stations and telephone
systems; and other activities which may be necessary to implement the
outsourced services.
"Subscription Contract" refers to the IBM Agreement for Software
Subscription between IBM and a customer. The types of Subscription
Contracts for which Supplier will provide rescue services are set forth in
the SOW.
3.0 DESCRIPTION OF DELIVERABLES AND SERVICES
3.1 Overview
The rescue services that Supplier shall provide generally involve contacting
Customers, through various media (teleservices, facsimile, electronically), for
the purpose of renewing those Customers Subscription Contract. For each
Customer Supplier contacts, Supplier will deliver to Buyer (via electronic
communication to Buyer's Business Partner Support Operation (BPSO) product
renewal orders and discontinuance requests. Supplier will also provide periodic
reports that reflect Supplier's performance of its rescue activities and other
renewal sales data. In addition, Supplier will create and maintain various
databases that contain the information that Supplier and Buyer agree are
necessary under this SOW.
_________________________
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.
1 of 7
3.2 Databases
Any databases that Supplier creates to perform the Services set forth in this
SOW, including the content of information contained within those databases, are
Developed Works, which IBM shall own. Supplier's activities with respect to any
such databases are further addressed in Section 5.0, "Supplier's
Responsibilities". The databases, including their content, shall be considered
"Confidential Information" and governed by the Confidential Disclosure Agreement
("CDA") #4900RS1038 and CDA Supplement #4901AD0004 between Buyer and Supplier.
3.3 Data Reporting
Any data prepared by Supplier for Buyer as part of the Services under this SOW,
including, but not limited to, performance reporting data and sales reporting
data are Developed Works, which IBM shall own. Supplier's activities with
respect to any such data reports are further addressed in Section 5.0,
"Supplier's Responsibilities."
Any reported data shall be considered Buyer's "Confidential Information" and
governed by CDA #4900RS1038 and CDA Supplement #4901AD0004 between Buyer and
Supplier.
4.0 ACCEPTANCE CRITERIA
The following criteria will determine Buyer's acceptance of Supplier's
performance.
4.1 ***
4.2 ***
5.0 SUPPLIER'S RESPONSIBILITIES
Supplier has the following responsibilities associated with this SOW.
5.1 Dedicated Services Setup of Client Division at Supplier.
Supplier shall hire, assign, train, and support the necessary individuals to
perform renewal sales for IBM Subscription Contracts. These resources will
support both inbound and outbound telesales, including the setup of desktop fax
and small messaging, call scripts, and creation and management of the rescue
program for IBM.
5.2 Telesales Activities.
Supplier's telesales professionals will use Supplier's sales force automation
systems to manage renewal sales opportunities with Customers. When Buyer
provides Supplier with data feeds for Customers, Supplier may contact those
Customers to determine whether they wish to renew their Subscription Contract
with IBM. If Customers wish to discontinue their Subscription Contract,
Supplier may not and will not contact Customers after such order discontinuance.
Supplier's telesales professionals may request the following information from
those Customers who they contact: primary contact(s) at Customer, Customer's
product configuration, Customer phone number, mailing address, facsimile number,
and email address.
Supplier will have a List Price that they may use to provide quotes to Customers
with respect to Subscription Contracts. Supplier will not have direct access to
Customer inventory records, configuration or pricing tools; the only information
that Supplier will have and that Supplier may use shall be the data feeds
supplied to Supplier by Buyer. Supplier will report reasons for non-renewals
for each Customer. In addition, Supplier will provide such Customer non-renewal
information to Buyer. Supplier must retain Customer contact center records to
validate Supplier's attempt(s) to contact each Customer. Buyer may review those
records at any time.
_________________________
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.
2 of 7
All telesales material must be approved by Buyer.
***
5.3 Database Services.
Supplier will create and maintain a secure database of Customer profiles,
database updates, database building and Customer call center Services to gather
missing Customer information. Supplier will also periodically update the
Customer database through profiling activity that results from Supplier's
telesales efforts. If requested by Buyer, Supplier will provide updated
Customer profiles and records.
Buyer will provide Supplier with data feeds representing Customers who have not
renewed their Subscription Contracts. In order to manage Customer profiles and
renewal sales opportunities, Supplier will integrate this information into
Supplier's customer relationship management (CRM) Systems; Supplier's access to
and use of this information from Buyer is restricted to Supplier's performance
of rescue services under this SOW.
Once a Subscription Contract is discontinued, it will no longer be reflected as
a Subscription Contract for which Supplier is providing rescue services.
Supplier's data base will maintain Customer profiles, including Discontinued
Customers. However, Supplier may not contact any Customer after that Customer
decides not to renew its Subscription Contract.
5.4 Scope of Services.
***
5.5 Customer Contact Center.
Supplier will provide a Customer contact center for Customers to contact
Supplier by phone, fax, or e-mail to renew Subscription Contracts or obtain more
information. Supplier will contact Customers primarily through outbound
telesales.
5.6 Standard Support Hours.
Support staff will be available from 6 a.m - 5 p.m. (PST) to answer Customer
inquiries, provide sales support, and take orders and process payments.
5.7 e-Quote to e-Sales e-Commerce e-Commerce Web service.
For Customers who wish to receive a quote via e-mail to renew their Subscription
Contracts, Supplier will generate an electronic quote (an e-mail that links to
online order form) through e-Quote-to-Sales Web service providing Customers with
self-service contract renewal through an e-commerce Web site, supported by the
Customer contact center, e-Quote will provide a link to an e-Commerce Site
hosted and maintained by Supplier. Through the e-Sales Web site, Customers can
view their quote and details, update Customer profile information, such as ship
to, ▇▇▇▇ to, and contact information, and order online. Customers can purchase
online through the e-Commerce site, which accepts and processes credit card or
purchase orders. All Customer online transactions must be secure and password
protected.
5.8 Customer Routing.
Supplier's Customer contact center staff will provide customer routing to
Buyer's Customer Support Operations (CSO) at Customer's request or if Supplier
is restricted from processing the order due to product content or price.
_________________________
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.
3 of 7
5.9 Reporting.
Supplier will provide monthly reporting of performance measurements as specified
in Section 6.0, "Quality Measurements". In addition Supplier will provide
quarterly business limit reports incorporating the performances measurements
along with summaries of database building and renewal sales activities.
5.10 Back Office Support.
Supplier will handle tax calculations for every sales order, credit checks for
Customers, payment processing/tracking/verification of purchase orders, process
credit card orders, invoicing, and collection payment on accounts receivables
(subject to Section 5.13 of the SOW) and entitlement fulfillment. Supplier's
staff will utilize Buyer's AE Forms/Link order entry system, which they will
access from Supplier's site for validating renewals electronically.
5.11 Buyer Invoicing.
Supplier will provide Buyer with a quality report detailing the outcome, for
each Customer Supplier is asked to contact that does not purchase a Subscription
Contract. This report will identify the outcome of the customer by category.
***
5.12 Customer Payments.
In the event a Customer fails to remit payment to Supplier, Supplier's only
action will be to clarify any errors in the remittance process such as
determining accurate credit card information or remittance address. Supplier
will not contact Customers to follow up on payment status, notify any third
party of Customer's nonpayment or in any other way act in a capacity as a
collection agent. Supplier will refer all other issues regarding payments to
Buyer for further action.
5.13 Supplier Representation to Customers.
***
6.0 SUPPLIER'S USE OF SUBCONTRACTORS
Supplier may subcontract Services to be performed hereunder. Notwithstanding
this subsection, Supplier's use of subcontractors does not relieve Supplier of
the responsibility for the subcontractor's performance, and Supplier's
obligations and responsibilities assumed under this Agreement will be made
equally applicable to subcontractors. Buyer reserves the right to reject
Supplier's use of a subcontractor in performance of this Agreement for any
reason.
7.0 QUALITY MEASUREMENTS
***
7.1 Quality Assurance.
Supplier will record 10% of the telesales calls to Customers. Buyer will have
access to Supplier's recordings upon Buyer's request.
8.0 BUYER'S RESPONSIBILITIES
Buyer has the following responsibilities associated with this SOW.
_________________________
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.
4 of 7
8.1 Setup of Supplier Support of Buyer.
Buyer's BPSO organization will assign a Customer Support Rep (CSR) for Supplier.
The CSR will be responsible for receiving Subscription Contract product orders
and reconciling them with Buyer's customer inventory system or database. BPSO
will also assign a point person to receive Subscription Contract discontinuance
requests and reconcile them with Buyer's customer inventory system. Buyer will
assign a Technical Coordinator who shall function as Supplier's primary contact
for execution of this SOW.
8.2 Data Feeds to Supplier.
Buyer will provide monthly data feeds to Supplier reflecting Customers with
Subscription Contracts that need to be renewed and that Supplier may pursue
through Supplier's rescue services. The data feeds shall include Subscription
Contract details, renewal pricing, Customer (company) name, and Customer
address. If a Customer chooses to not renew its Subscription Contract, Buyer's
data feeds to Supplier will no longer reflect that Customer account as a rescue
opportunity for Supplier. Buyer will also designate a person who shall be
responsible for facilitating transfers of incremental data files between Buyer
and Supplier.
All data supplied by Buyer to Supplier shall be considered Confidential
Information pursuant to AECI #4900RS1038 and Supplement # 4901AD0004 between
Buyer and Supplier.
8.3 List Prices.
Buyer will provide Supplier with List Prices for Subscription Contracts. As
updates occur to any such List Prices, Buyer will provide Supplier with those
updates.
8.4 Telephone Access.
Buyer shall maintain, at Buyer's sole discretion and expense, automatic
telephone transfer capabilities to allow Buyer to transfer to Supplier telephone
calls from Customers whose names are on data feeds already provided to Supplier.
8.5 Pre-Sales Technical Support and Training.
Buyer shall provide, at Buyer's expense, pre-sales training on Subscription
Contracts and products for Supplier at Supplier's site. Buyer will also train
Supplier's staff on proper use of Buyer's AE Forms/Link order entry system.
9.0 MUTUAL RESPONSIBILITIES
Supplier and Buyer have the following responsibilities associated with this SOW.
9.1 Training of Supplier.
The length, delivery, and dates of the training by Buyer at Supplier's site will
be agreed to by both Buyer and Supplier. Although the content of the training
will largely be determined by Buyer, Buyer and Supplier will work together to
determine the appropriate content based on the information that Buyer will make
available to Supplier under this SOW.
9.2 Development of Telemarketing and Telesales Material.
Buyer and Supplier will agree on the content and use of all material developed
and utilized with this rescue program, including but not limited to product
information, desktop fax, e-mail messaging, call scripts, and web site content.
_________________________
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.
5 of 7
Supplier and Buyer will provide resources needed for creation, approval and
management of rescue telemarketing and telesales programs.
9.3 Development of Reports
Buyer and Supplier will agree on data content, format, and dates of all reports
associated with this rescue program.
10.0 PROJECTED SCHEDULE
April 6, 2001 Execution of Agreement
May 11, 2001 Supplier will have dedicated skills ready to support Services
under SOW
May 11, 2001 Supplier will establish an account with IBM Global Financing
May 11, 2001 Buyer/Supplier training
May 11, 2001 Commencement of rescue services
11.0 PAYMENTS
For the Deliverables and Services Supplier provides Buyer, Buyer will pay
Supplier the amounts as described below:
***
12.0 OTHER TERMS
Buyer may terminate this SOW without cause by providing Supplier with thirty
(30) days written notice. During this 30 day notice period Buyer will not be
responsible to provide additional data feeds.
Either party may terminate this Agreement, without any cancellation charge, for
a material breach of the Agreement by the other party. Such termination will be
effective immediately.
13.0 COMMUNICATIONS
All communications between the parties will be carried out through the following
designated coordinator:
---------------------------------------------------------------------------------------------------------------------
Business Coordinators
---------------------------------------------------------------------------------------------------------------------
FOR SUPPLIER FOR BUYER
---------------------------------------------------------------------------------------------------------------------
Name *** Name ***
---------------------------------------------------------------------------------------------------------------------
Title *** Title ***
---------------------------------------------------------------------------------------------------------------------
Address ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Address ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Mailstop 5E1
▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
_________________________
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.
6 of 7
---------------------------------------------------------------------------------------------------------------------
Phone *** Phone ***
---------------------------------------------------------------------------------------------------------------------
Fax *** Fax ***
---------------------------------------------------------------------------------------------------------------------
E-mail *** E-mail ***
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Technical Coordinators
---------------------------------------------------------------------------------------------------------------------
FOR SUPPLIER FOR BUYER
---------------------------------------------------------------------------------------------------------------------
Name Name ***
---------------------------------------------------------------------------------------------------------------------
Title Title ***
---------------------------------------------------------------------------------------------------------------------
Address Address ▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
Phone Phone ***
---------------------------------------------------------------------------------------------------------------------
Fax Fax ***
---------------------------------------------------------------------------------------------------------------------
E-mail E-mail ***
---------------------------------------------------------------------------------------------------------------------
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
International Business Machine Corporation Rainmaker Systems, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------- -------------------------------
Buyer Signature Date Buyer Signature Date
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------- -------------------------------
Printed Name Printed Name
Procurement Professional, Global Procurement V.P. Sales & Marketing
--------------------------------------------- -------------------------------
Title & Organization Title & Organization
_________________________________________ _______________________________
Buyer Address: Supplier Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇ 1800 Green Hills Road
Mailstop 5E1 ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇
_________________________
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.
7 of 7