EXHIBIT 10.21
SSOP
SERVICES SALES OUTSOURCING PARTNER AGREEMENT
This services sales Partner Agreement ("Agreement") is made as of _________
(the "Effective Date"), by and between Hewlett-Packard Company, a Delaware
corporation with its principal place of business located at 0000 Xxxxxxx Xxxxxx,
Xxxx Xxxx; Xxxxxxxxxx 00000-0000 ("HP"), and Rainmaker Systems, ("Services Sales
Outsourcing Partner" or "SSOP") and consists of this signature page, the
attached General Terms and Conditions, and all attached Schedules. SSOP must
sign this SSOP Agreement with the appropriate Schedules in order to sell
Services.
Whereas, HP desires to appoint SSOP to sell Services (as hereafter defined)
on behalf of HP in the Territory (as hereafter defined) and to provide certain
administrative functions with respect to the Services; and
Whereas, SSOP has a sales force experienced in making sales to Customers (as
hereafter defined) in the Territory and desires to act as SSOP and to sell
Services for HP, pursuant to the terms of this Agreement;
Now, therefore, the parties agree to the attached General Terms and
Conditions and all attached Schedules and exhibits.
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
HEWLETT-PACKARD COMPANY RAINMAKER SYSTEMS, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------- ------------------------
Title: VP & General Manager Title: VP Sales & Marketing
HP Services Sales.
Address: 00 Xxxxxxxxx Xxxxx Address: 0000 Xxxxx Xxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000 Xxxxxx Xxxxxx, XX 00000
SERVICES SALES OUTSOURCING PARTNER
GENERAL TERMS AND CONDITIONS
1. Definition
A. "Anniversary Date" shall mean the date on which a renewal term of this
Agreement begins.
B. "Customer" shall mean any customer that has placed an order for
Services sold by SSOP and accepted by HP pursuant to this Agreement
C. "Services" shall mean HP Basic Services identified in Schedule 1. HP
may add or delete Services listed in Schedules 1 by providing thirty
days (30) written notice to SSOP.
D. "Territory" shall mean the geographic locations identified in Schedule
2, as amended from time to time by the mutual agreement of the parties
or by HP following thirty (30) days written notice to SSOP.
2. Relationship
A. HP hereby appoints SSOP, and SSOP hereby accepts such appointment, to
be HP's [ ] SSOP in the Territory for the purpose of selling the
Services.
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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SSOP shall not appoint any subcontractor or distributor without HP's
prior written consent.
B. SSOP shall have no authority to bind HP to any contract,
representation, understanding, act, or deed concerning HP or any
Services covered by this Agreement without HP's prior written consent.
This Agreement shall not be deemed to establish a joint venture or
partnership. SSOP shall make no warranties or representations and no
representations concerning prices, terms of delivery, terms of payment,
or conditions of sale, relating to the Services unless such warranties
and other representations are authorized in writing by HP.
C. HP may request that the SSOP provide HP with a forecast of anticipated
sales of Services for each year that this Agreement is in effect.
D. Independent Contractor. The relationship of the parties established
under this Agreement is that of independent contractor and neither
party is a partner, employee, agent or joint venturer of or with the
other.
E. Supervision. SSOP will at all times be solely responsible for all
means, methods, techniques, sequences and procedures of the Services,
and the acts and omissions of all employees, Subcontractors and agents,
and all other persons performing any of the Services. SSOP will at all
times maintain strict discipline among its employees, and will not
employ any person unfit or unskilled in the performance of the
Services.
F. Health and Safety. SSOP agrees that it has and will have sole
responsibility for the health, safety, and welfare of its employees,
Subcontractors, and agents performing Services under this Agreement.
G. Compliance with Laws. SSOP will sell the Services and any other
obligations under this Agreement in strict compliance with all
Applicable Laws. HP will not be responsible for monitoring SSOP's
compliance with any Applicable Laws.
H. Nondiscrimination. SSOP will comply with all equal employment
opportunity and nondiscrimination requirements, including but not
limited to, those prescribed by Presidential Executive Orders, the
requirements of Executive Order 11246, the Vocational Rehabilitation
Act, and the Vietnam Era Veterans' Readjustment Assistance Act.
I. Labor Disputes. Whenever any actual or potential labor dispute delays
or threatens to delay the timely selling of Services, or any of SSOP's
other obligations under this Agreement, SSOP will immediately give
written notice to HP and take all reasonable steps to prevent or
resolve the dispute.
J. Consultation With HP. SSOP agrees to make itself available at all
reasonable times to consult with appropriate representatives of HP
concerning any Services
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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sold or to be sold by SSOP under this Agreement.
K. Subcontractors. SSOP will not subcontract any of the Services to other
persons or entries without the prior written approval of HP. All
obligations imposed upon SSOP will be similarly imposed by SSOP upon
any authorized Subcontractor. SSOP's execution of any subcontracts,
including subcontracts approved by HP, will not relieve, waive or
diminish any obligation SSOP may have to HP under this Agreement
3. Duties of Services Sales Outsourcing Partner
A. SSOP shall at all times, use its commercially reasonable efforts to
promote the sales of Services covered by this Agreement in the
Territory.
B. HP hereby expressly authorizes SSOP to contact HP's customers for the
purpose of selling the services as defined herein.
C. SSOP's Marketing Efforts. SSOP shall use reasonable commercial efforts
to market the Services throughout the Territory to the Target Market by
performing such marketing services as SSOP may propose to undertake and
HP may approve in advance in writing (with HP's approval not to be
unreasonably withheld, conditioned or delayed).
D. SSOP shall keep informed of the condition of the market in the
Territory and make available to HP any information relevant to the
marketing of Services, such as sales possibilities, pricing trade
statistics, competitive measures relating to the Territory. SSOP shall
submit to HP a written report at least once every [ ] months containing
the data set forth in this section.
E. SSOP shall not produce any advertising literature or fact streets
concerning Services unless it has been authorized to do so in writing
by HP, and receives HP's approval of the promotional literature prior
to its use.
F. SSOP shall provide reasonable technical pre-sales support as may be
deemed necessary by HP to enable Customers and prospective customers to
satisfactorily buy the Services from HP in accordance with their
particular needs.
G. SSOP will be responsible for the steps of the sales cycle as set forth
in the Operational Plan, schedule 4. SSOP will use the [ ] (as defined
on the current HP price list, or as listed on an official HP Services
quote) when quoting the price for Services to Customer unless otherwise
agreed upon by HP.
H. Upon receipt of Customer's order, SSOP will invoice Customer for the
price of Services covering the initial term of the agreement. SSOP will
collect payment from Customer for each invoice, and pay any applicable
taxes to the appropriate
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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government agencies.
I. SSOP shall place monthly purchase orders with HP for the services.
Following HP's receipt and fulfillment of such monthly purchase order,
HP shall issue SSOP an invoice corresponding to such purchase order.
SSOP shall pay to HP all amounts set forth in such invoice within [ ]
days from the date of such invoice.
J. If required by law, SSOP will hold a valid service resale certificate.
HP may audit SSOP's records for the purpose of verifying and
reconciling payment of Services charges from Customer to SSOP and from
SSOP to HP. SSOP shall maintain appropriate records that will be made
reasonably available for an audit HP may only exercise this right on
[ ].
K. SSOP agrees to follow processes as defined by HP in schedule 4 which
both parties agree to be modified from time to time.
4. Duties of HP
A. HP shall supply SSOP with reasonable quantities of advertising
literature and Services fact sheets for use in connection with selling
the Services.
B. HP will provide to SSOP current list prices for the Services set forth
in this agreement.
5. Compensation
A. SSOP's compensation for all Services sold are outlined in Schedule 3.
B. Such commissions shall apply only to the Services sold by SSOP, and not
to additional services or products, which may be sold by HP including
services, sold during any renewal period.
C. Such commissions shall apply only to Services for which the SSOP has
purchased from HP. This initial term is typically one year in length
but may be up to three years.
D. SSOP will not earn a commission from HP under the following
circumstance:
1) SSOP has expanded or modified the Services agreement terms and
conditions without prior authorization from HP.
E. Taxes. SSOP will have sole responsibility for the payment of all
employee taxes, compensation, wages, benefits, contributions,
insurance, and like expenses, if any, of its employees. SSOP will
indemnify and hold harmless HP, its officers, directors and employees
from and against all liability and loss in connection with,
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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and will assume responsibility for payment of, all federal, state and
local taxes or contributions imposed as required under employment
insurance, social security and income tax laws for SSOP's employees
engaged in the selling of Services under this Agreement.
F. HP hereby grants to SSOP a nonexclusive, non-assignable and royalty
free license to use any trademark(s) or service xxxx(s) approved by HP
(to provide the Outsourced Services, including, without limitation, (1)
to create the design of the SSOP Opportunity Name (as defined below)
logo on the SSOP, (2) to take, handle and fulfill Customer orders for
Products, and (3) to market the Products hereunder. HP, in its sole
discretion from time to time, may change the appearance and/or style of
HP Marks or add to or subtract from the approved list, provided that,
unless required earlier by a court order or to avoid potential
infringement liability, HP shall provide SSOP [ ] written notice of any
such changes.
G. Publicity. In furtherance of the purposes of this Agreement, HP hereby
consents to the use and publication of its name, trademarks and
corporate logos by SSOP in SSOP's sales, marketing and other materials,
including (i) corporate presentations by SSOP, (ii) SSOP's web site,
and (iii) materials intended for the financial community and SSOP's
business partners. HP further consents to being described as a client
of Rainmaker in such presentations and such sales, marketing and other
materials during the term of this Agreement. SSOP shall not disclose
any of the specifics of this Agreement to SSOP other clients, potential
clients or to any third party. HP reserves the right to (a) review,
upon request, any such sales, marketing and other materials which
incorporate HP's name, trademarks or corporate logos, and (b)
disapprove the use of such materials if HP determines, at its sole
discretion, that such materials or SSOP's use of such materials are
objectionable or otherwise unsuitable.
6. Insurance Requirements
A. Required Coverages. SSOP, and any Subcontractors hired by SSOP will, at
their own expense, maintain in force the following insurance coverage:
1) Workers' Compensation and Employer's Liability.
Workers' Compensation insurance as required by statute; and
Employer's Liability insurance in not less than the following
amounts (or as otherwise required by applicable state law):
Bodily injury by accident $[ ] per accident;
Policy limit by disease $[ ];
Bodily injury by disease $[ ] per employee.
2) Comprehensive General Liability Insurance or Commercial General
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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Liability Insurance will be provided with coverage for (a) Premises and
Operations; (b) Products and Completed Operations; (c) Contractual
Liability, (d) Broad Form Property Damage (including Completed
Operations); (e) Explosion, Collapse and Underground Hazards (ECU) when
Contractor will create risk normally covered by such insurance; and (f)
Personal Injury Liability. Comprehensive General Liability policy
limits will be not less than a Combined Single Limit for Bodily Injury,
Property Damage, and Personal Injury Liability of $[ ] per occurrence
and $[ ] aggregate.
Commercial General Liability (Occurrence) policy limits will be not
less than $[ ] per occurrence (combined single limit for bodily injury
and property damage), $[ ] for Personal Injury Liability, $[ ]
aggregate for Products and Completed Operations, and $[ ] general
aggregate.
Except for Products and Completed Operations coverage, the aggregate
limits will apply separately to SSOP's Work under this Agreement.
Each policy above will name HP, its officers, directors and employees
as additional insureds as to any acts or omissions by SSOP in the
performance of this Agreement, and will stipulate that the insurance
afforded additional insureds will apply as primary insurance, and no
other insurance carried by any of them will be called upon to
contribute to a loss covered under the insurance. If "claims made"
policies are provided, SSOP will maintain such policies, without
endangering aggregate limits, at the above stated minimums for a period
of at least [ ] years after the expiration of the Term.
3) Certificates of Insurance. Certificates of insurance evidencing the
required coverages and limits must be furnished to HP prior to the
commencement of any Services, and at such other times as requested by
HP. SSOP will provide HP [ ] days written notice prior to cancellation.
In no event will the coverages or limits of any insurance maintained by
SSOP pursuant to this Agreement, or the lack or unavailability of any
other insurance, limit or diminish in any way SSOP's obligations or
liability to HP under this Agreement.
7. Indemnification by SSOP:
A. SSOP will defend, indemnify, protect and hold harmless HP, its
officers, directors, and employees from and against any and all claims,
losses, liens, demands, attorneys' fees, damages, liabilities, costs,
expenses, obligations, causes of action, or suits, (collectively
"Claims") to the extent that such Claims are caused by, arise out of,
or are connected in any way with:
1) Any negligent act or omission, whether active or passive and whether
actual or alleged, or willful misconduct of SSOP or its employees,
Subcontractors or agents, to the maximum extent permitted by law;
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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2) the breach of this Agreement by SSOP or its employees,
Subcontractors or agents of any of its contractual obligations,
covenants, undertakings or promises under this Agreement; or
3) property loss, damage, personal injury or death, sustained by
Contractor or by any of Contractor's employees, Subcontractors or
agents.
8. Term and Termination
A. The term of this Agreement is [ ] years. At the end of that term, the
parties may renew the Agreement by mutual agreement. HP will evaluate
the Agreement at the time of renewal based on (i) the SSOP's order
connection rate as set forth in schedule 4 (ii) Customer satisfaction
as set forth in schedule 4 and (iii) whether SSOP has paid amounts due
to HP in a timely manner in accordance with the terms of this
agreement.
B. Upon [ ] written notice, either party may terminate this Agreement.
Upon termination, both HP and the SSOP will review the status of the
orders procured by SSOP, and SSOP will pay HP all sums due on those
orders.
C. If SSOP becomes insolvent, is unable to pay its debts when due, files
for bankruptcy, is the subject of involuntary bankruptcy, has a
receiver appointed, or has its assets assigned, HP may terminate this
Agreement without notice and may cancel any unfilled obligations.
9. Intellectual Property
A. Neither party shall gain by virtue of this Agreement any rights of
ownership of copyrights, patents, trade secrets, trademarks or any
other intellectual property rights owned by the other.
B. Other than the right to procure sales for HP, SSOP shall have no rights
to use HP's corporate name, or to use HP trademarks or trade names,
except as HP may approve in writing, in advance. Upon termination of
this Agreement for any reason, SSOP will immediately discontinue all
uses of HP's corporate name, trademarks, or trade names, and shall
immediately discontinue any and all representations, direct or implied,
that it is or was an HP SSOP, or HP representative.
10. Confidentiality
A. In the event that Confidential Information is exchanged, each party
will protect the confidential information of the other in the same
manner in which it protects its own confidential information of a
similar nature but with no less than a reasonable degree of care. Thus
obligation of confidentiality applies if the party claiming the benefit
of the provision furnishes such information in writing and
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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marks such information as "Confidential" or if such information is
provided orally, and the transmitting xxxxx ("Discloser") confirms in
writing to the receiving party ("Recipient") that it is confidential
within 30 days of its communication. Confidential Information must be
kept confidential for three (3) years after the date of disclosure.
B. As used herein, the term "Confidential Information" shall include,
without limitation, all information designated by either party as
confidential pursuant to the Confidential Disclosure agreement,
schedule 5, all information or data concerning or related to Customer
lists, HP Products (including the discovery, invention, research,
improvement, development, manufacture, or sales thereof), processes, or
general business operations including sales costs, profits, pricing
methods, organization and employee lists), and any information obtained
through access to any systems (including computers, networks, voice
mail, etc.) which, if not otherwise described above, is of such nature
that a reasonable person would believe it to be confidential.
C. This Section imposes no obligation upon a Recipient with respect to
Confidential Information which (a) was in the Recipient's possession
before the disclosure; (b) is or becomes a matter of public knowledge
through no fault of the Recipient; (c) is rightfully received by the
Recipient from a third xxxxx without a duty of confidentiality, (d) is
disclosed by the Discloser to a third party without a duty of
confidentiality on the third party, (e) is independently developed by
the Recipient; (f) is disclosed under operation of law; or (g) is
disclosed by the Recipient with the Discloser's prior written approval.
D. SSOP acknowledges that the terms of this Agreement are confidential and
agrees not to disclose the terms without HP's prior written consent.
SSOP agrees to inform its employees of the confidentiality obligations
imposed by this Agreement. This Section 10 shall survive the
termination of this Agreement.
11. General
A. SSOP may not assign or transfer its rights in this Agreement without
HP's prior written consent.
B. No party's failure to exercise any of its rights under this Agreement
will constitute or be deemed waiver or forfeiture of those rights.
C. Any term of this Agreement that is held to be invalid will be deleted,
but the remainder of these terms will not be affected.
D. The laws of the State of California will govern any disputes arising in
connection with this Agreement.
E. SSOP represents and warrants that it is an independent business engaged
in the
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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sale of various products or in the independent representation of
various manufacturers or sellers of products. SSOP shall have sole
fiscal and other responsibility for the acts and compensation of its
own employees and the expenses of the conduct of its business.
F. In no event will HP's liability under this Agreement exceed [ ]. IN NO
EVENT WILL HP OR ITS AFFILIATES, SUBCONTRACTORS OR SUPPLIERS BE LIABLE
FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. This Section 11F will
survive the termination of this Agreement.
G. Outside the United States, this Agreement is subject to amendment as
may be required by local law. HP must approve all countries in advance
where SSOP would like to sell HP Services and those countries must be
added to Schedule 3 in order for this agreement to apply to those
countries. SSOP acknowledges that variations in Services offered, such
as hours of coverage, currency requirements, specific country
requirements, working hours and response times, may exist in some
countries.
H. This Agreement, and its attached Schedules, set forth the entire
agreement and understanding between HP and the SSOP relating to
transactions described herein and supersede any previous
communications, representations or agreements between the parties,
whether oral or written, regarding these transactions. SSOP's
additional or different terms and conditions will not apply. This
Agreement may not be changed except by an amendment signed by an
authorized representative of each party.
I. SSOP and HP expressly agree that the United Nations Convention on
Contracts of the International Sale of Goods will not apply to
transactions processed under this Agreement.
J. The following Schedules are attached and made a part of this Agreement.
HP may offer new or revised Schedules by forwarding them to SSOP by
postal or electronic means. Such Schedules shall become effective for
all referrals after receipt by SSOP.
Attached Schedules:
Schedule 1 - HP Basic Services
Schedule 2 - Territory
Schedule 3 - Discount schedule
Schedule 4 - Operational, Plan
Schedule 5 - Confidential Disclosure Agreement
Schedule 6 - Agency 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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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SCHEDULE 1
HP Basic Services
Support Pack
Post Warranty Support Pack
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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SCHEDULE 2
Territory
Services Sales Outsourcing Partner's non-exclusive Territory is The United
States of America
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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SCHEDULE 3
Support Pack/Post Warranty SupportPack discount Schedule:
LaserJets [ ] off of current HP List price
DesignJets [ ] off of current HP List price
Workstations [ ] off of current HPList price
Monitors [ ] off of current HP List price
Desktop PC's [ ] off of current HP List price
Netservers [ ] off of current HP List price
Installation [ ] off of current HP List 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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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SCHEDULE 4
SSOPA/Hewlett Packard Operational Plan
Please refer to the Operational plan to be developed/finalized within 60 days of
contract acceptance, which will be modified periodically.
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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Description of HP Hardware Support Service
.. Priority On-Site Service
Designed for production-critical applications, this support level provides HP's
best possible response between 8:00 am and 9:00 pm, Monday through Friday. HP
will arrive on site to begin hardware maintenance within 4 hours for calls
received between 8:00 am and 5:00 pm local time, for sites located within 100
miles of a primary HP Support Responsible Office.
.. Next Day On-Site Service
This service level is designed for customers who want the convenience of on-site
service, but who do not require HP's fastest response time. HP will arrive on
site to begin hardware maintenance between 8:00 am and 5:00 pm local time,
Monday through Friday during the next working day after the day a call is
received. This applies to sites located within 100 miles of a primary HP Support
Responsible Office.
.. Provides Priority level of on-site service during the product warranty
period
.. Provides Next Day level of on-site service during the warranty period.
Hardware Support Specifications:
HP will provide all labor, parts, and materials necessary to maintain in good
operating condition products covered by this Agreement. At the time of repair,
HP may install engineering improvements and modifications to improve operation
and reliability or to meet legal requirements and will perform preventative
maintenance services such as cleaning and inspecting as appropriate. Replacement
parts will be new or their equivalent; replaced parts will become the property
of HP. For on-site services, Customer is responsible for providing access to
products being serviced and for insuring that a representative is present while
service is being performed. HP performs all services during HP's normal business
hours, excluding HP holidays. HP reserves the right and Customer consents to
HP's use of subcontractors to assist in the provision of HP Hardware System
Support Service as HP deems appropriate, without notice to Customer.
Terms and Conditions:
1. Support Services: HP will provide the support services described in this
Agreement.
2. Charges: SSOPA will collect monies for support from end user and pay HP, HP
List price less the discount set forth in schedule 3.
3. Eligible Products: To be eligible for support, products must be in good
operating condition and at current revision levels. To bring non-eligible
products up to these
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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requirements, HP will charge HP standard rates in effect on the date of
the support order. Relocation of products is Customer's responsibility
and may result in additional support charges and modified service
response times. Products moved to another country may continue to be
serviced subject to availability of an HP authorized support provider.
4. Support Warranty: HP warrants the replacement parts provided to
maintain hardware products serviced hereunder against defects in
materials and workmanship. If HP receives notice of such defects during
the term of this Agreement, HP will, at its option, repair or replace
the replacement parts that prove to be defective.
THE ABOVE WARRANTY IS EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN
OR ORAL IS EXPRESSED OR IMPLIED. HP SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Remedies and Liability: For any material breach of this Agreement by
HP, Customer's remedy and HP's liability will be limited to a refund of
the related support charges paid during the period of breach, up to a
maximum of 12 months. HP will not be liable for performance delays or
for nonperformance due to causes beyond its reasonable control. HP will
be liable for damage to tangible property per incident up to the
greater of $300,000 or the actual charges paid to HP for the product
that is the subject of the claim, and for damages for bodily injury or
death, to the extent that all such damages are determined by a court of
competent jurisdiction to have been directly caused by a defective HP
service sold under this Agreement.
6. Uniform Coverage: All products that constitute the minimum system
configuration must be covered under the same level of service.
7. Limitations of Service. HP does not provide support for "Nonqualified
Products." Nonqualified Products are hardware and software not supplied
or approved by HP and products for which Customer does not allow HP to
incorporate modifications. Customer is responsible for removing
Nonqualified Products to allow HP to perform support services. If
support services are made more difficult because of a Nonqualified
Product, HP will charge Customer for the extra work at HP's standard
rates.
Services do not cover any damage or failure caused by:
a. use of non-HP media and supplies or use of items not designated for
use with products being serviced; or
b. site conditions that do not conform to HP's site specifications; or
c. fire or water damage, neglect, improper use, electrical
disturbances, transportation by Customer, work or modification by
people other than HP employees or subcontractors, or other causes
beyond HP's control.
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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8. Customer Responsibilities: Customer is responsible for the security of
its proprietary and confidential. information and for maintaining a
procedure external to the products to reconstruct lost or altered
files, data, or programs. Customer will provide HP service personnel
with the operating supplies used during normal operation. Customer must
notify HP if products serviced are being used in an environment that
poses a potential health hazard to HP employees or subcontractors; HP
may require Customer to maintain such products under HP supervision. If
remote support is available, Customer will allow HP to keep system and
network diagnostic programs resident on Customer's system for the
exclusive purpose of performing diagnostics. Customer acknowledges that
Customer has no ownership interest in diagnostic hardware or software
provided by HP and that HP may remove these diagnostic programs and any
HP-loaned modems or remote access devices upon termination of this
Agreement. Customer's system must be configured to permit access to one
voice-grade telephone line and one data-quality telephone line; both
must have terminations located near Customer's system. Upon HP's
request, Customer will run HP-supplied diagnostic programs before
having a product serviced under this Agreement.
9. Term: This Agreement will begin on the start date specified by HP as
follows: for products under warranty, the day following the product's
warranty expiration date; for products not under warranty, HP reserves
the right to require a 31-day wait period following acceptance of this
Agreement by HP, unless Customer purchases a precontract inspection to
determine coverage. The minimum term for any order is 12 full months
unless otherwise agreed, and all orders will continue until terminated
by either party under the provisions of this Agreement. The 07A and 07C
services are provided only during the product warranty period.
10. Termination: Customer may terminate the Agreement with 30 days' written
notice. Upon 60 days' written notice, HP may cancel the Agreement. If
Customer fails to pay any sum when due or fails to perform under this
or any other agreement with HP after 10 days' written notice, HP may
discontinue performance under these terms.
11. Governing Laws: Any disputes arising in connection with this Agreement
will be governed by the laws of the State of California. The courts of
the State of California will have jurisdiction.
12. Entire Agreement: The terms and conditions of this Agreement constitute
the entire understanding between the parties relating to the provision
of the services listed above. Customer's acceptance of this Agreement
is deemed to occur upon Customer's signature or payment, or upon HP's
provision of any support services.
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 by brackets "[ ]." A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
17
