Agreement
Page 1
AGREEMENT
THIS AGREEMENT (collectively, with such Addenda and Exhibits as may from time to
time be attached hereto, the "Agreement") is made as of October 6, 2000
("Effective Date"), between Predictive Systems, Inc., a Delaware corporation,
with its address at 417 Fifth Avenue, New York, NY 10016 ("Company"), and
BellSouth MNS, Inc., a Delaware corporation with its address at 2400 Century
Boulevard, Atlanta, GA 30345 ("BellSouth").
RECITALS
WHEREAS, BellSouth develops, markets and provides, among other things, data
center, telecommunications, and network services and seeks to further develop
its data center, network, and application services business and as a key
strategy to further enable itself and its customers for electronic commerce,
Internet applications, and other electronic business applications.
WHEREAS, Company provides network consulting services in the areas of network
and systems management, inter-network design and engineering, performance
management and information security.
WHEREAS, in support of this strategy, [***]
WHEREAS, in support of this strategy, BellSouth plans to [***]
WHEREAS, Company and BellSouth desire to form a relationship ("Relationship")
that seeks to
[***]
WHEREAS, Company and BellSouth desire to engage in cooperative promotional
arrangements in connection with the Relationship, which may include
[***]
WHEREAS, Company and BellSouth desire to enter into a sales lead referral
program.
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED
OUTSIDE THE BELLSOUTH COMPANIES OR PREDICTIVE SYSTEMS EXCEPT PURSUANT TO A
WRITTEN AGREEMENT. MUST BE STORED IN LOCKED FILES WHEN NOT IN USE.
***Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as
amended. Omitted material for which confidential treatment has been requested
has been filed separately with the Securities and Exchange Commission.
Agreement
Page 2
MASTER TERMS
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Company and BellSouth,
hereby agree as follows:
A. SCOPE AND PURPOSE
The purpose of this Agreement is to establish a mutually beneficial
[***] relationship between BellSouth and Company ("Relationship"). The
elements of the Relationship are set forth in the following exhibits, which are
attached hereto and incorporated into this Agreement:
1. Exhibit A, pursuant to which the parties will engage in cooperative
promotional activities related to the Relationship;
2. Exhibit B, which is reserved for possible future use;
3. Exhibits C and D, pursuant to which the parties will engage in
[***] to each other.
This Agreement shall not create a legal representative or agency
relationship between the parties. No party shall have the right or authority to
assume, create, or incur any liability or obligation of any kind, expressed or
implied, against, or in the name of, or in the behalf of the other party. No
party shall have any power or authority to bind or commit the other party.
Nothing contained in the Agreement shall be deemed or construed as creating a
joint venture or partnership between the parties. No party shall have the power
to control the activities and operations of any other party.
Each party's relationship to the other party in the performance of this
Agreement is that of an independent contractor. Personnel furnished by a party
("Party's Employees") to perform services hereunder shall at all times remain
under that party's control and direction and shall be employees solely of that
party. That party shall pay all wages, salaries and other amounts due its
employees relative to this Agreement and shall be responsible for all
obligations respecting them relating to FICA, income tax withholdings,
unemployment compensation and other similar responsibilities. In the event that
a party's independent status is denied or changed and that Party's Employees are
declared to be "common law" employees with respect to work performed for another
party, to the extent permitted by law, the employing party agrees to hold
harmless from all taxes and costs, including reasonable attorneys' fees, as set
forth above, that any other party may incur as a result of such change in
status. Moreover, solely for purposes of complying with the Immigration Reform
and Control Act of 1986 and its regulations ("IRCA"), each party warrants and
agrees to the other party that, to the best of its ability, it will (i) not
assign any individual to perform work hereunder who is an unauthorized alien
under IRCA, (ii) immediately remove any alien discovered to be unauthorized from
such work and replace him/her with one who is not an unauthorized alien, and
(iii) to the extent permitted by the law to indemnify and hold the other party
harmless from all liabilities, damages, losses, or expenses and reasonable
attorneys' fees arising out of a breach of this clause.
B. ADDITIONAL BUSINESS RELATIONSHIPS
Company will discuss with BellSouth opportunities to [***]
C. ADVERTISING AND PUBLICITY
The parties shall develop a mutually acceptable press release
concerning the subject matter of this Agreement. The parties may also prepare
other mutually acceptable public relations materials relating to this Agreement.
All media releases, public announcements and public disclosures by either party
regarding the Relationship shall be coordinated between and approved by both
parties prior to release. Such approval shall not be unreasonably withheld or
delayed by either party.
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED
OUTSIDE THE BELLSOUTH COMPANIES OR PREDICTIVE SYSTEMS EXCEPT PURSUANT TO A
WRITTEN AGREEMENT. MUST BE STORED IN LOCKED FILES WHEN NOT IN USE.
***Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as
amended. Omitted material for which confidential treatment has been requested
has been filed separately with the Securities and Exchange Commission.
Agreement
Page 3
D. CONFIDENTIAL INFORMATION
Each party acknowledges that it may acquire information and material
that is the other party's confidential, proprietary or trade secret information.
As used herein, "Information" means all information and documents disclosed by a
party, whether written or oral, in the course of this Agreement or in
contemplation hereof, that is marked "confidential", "proprietary", or "trade
secret" or, if disclosed orally, is characterized as such and confirmed in
writing as such a reasonable time after disclosure, and shall include all
Technical Elements developed by or on behalf of the party prior to, or
independently of, this Agreement, specifications, drawings, sketches,
schematics, models, samples, tools, algorithms, technical or business
information, research and development, production and engineering processes,
costs, profit and margin information, customer lists, marketing, production and
future business plans and any such information or materials of the party's
agents, subcontractors or other suppliers received from the party.
The receiving party agrees to take all steps reasonably necessary to
hold in confidence disclosing party's Information, not to disclose it to third
parties or to use it, in any way, commercially or otherwise, other than as
permitted under this Agreement. The receiving party will limit the disclosure
of the disclosing party's Information to employees, subcontractors, agents,
representatives and other third parties with a need to know who perform under
this Agreement who (i) have been advised of the proprietary nature thereof and
(ii) have been contractually obligated to maintain such confidentiality. The
receiving party's obligations set forth herein shall remain in effect for two
(2) years from the receipt of disclosing party's Information considered or
deemed to be confidential information, but such obligation of disclosing party's
confidentiality will not expire for disclosing party's Information considered or
deemed to be a trade secret under applicable law.
Notwithstanding the other provisions of this Agreement, nothing
received by either party from the other will be considered to be the disclosing
party's Information if (i) it has been published or is otherwise available to
the public other than by a breach of this Agreement, (ii) it has been rightfully
and lawfully received by the receiving party from a third party without
limitations or restrictions on its use or disclosure, (iii) it has been
independently developed by the receiving party or by personnel having no access
to disclosing party's Information, (iv) it was known by the receiving party
prior to its first receipt from the disclosing party and such knowledge can be
substantiated by reasonable documentation, (v) it is hereafter disclosed by the
disclosing party without restriction on further disclosure, or (vi) it is
required to be disclosed to any governmental agency or a court of competent
jurisdiction pursuant to a written order, subpoena or by operation of law,
provided the receiving party has given the disclosing party prior advance
written notice in order that the disclosing party may attempt to obtain a
protective order limiting disclosure and use of the information disclosed.
Each party hereby agrees that every individual person including but not
limited to employees, subcontractors, agents, representatives and other third
parties who perform under this Agreement shall execute the appropriate documents
to undertake obligations of confidentiality and limitations on use consistent
with the terms set forth herein. Each party hereby agrees to provide evidence of
such duly executed documents and/or copies to the other upon request.
E. PRIOR COMMITMENTS
The parties represent that neither of them is negotiating to enter into
any legal commitment(s) or is under any prior legal commitment(s) that would
interfere with the good faith performance of this Agreement, except such
commitments as have been disclosed to the other party on Exhibit E hereto.
F. NON-EXCLUSIVE AGREEMENT
This Agreement does not create an exclusive relationship between the
parties. Either party may freely contract with other parties for comparable or
identical relationships.
G. INTELLECTUAL PROPERTY
Except as specifically provided herein, no licenses under any patents,
copyrights, trademarks, trade secrets or any other intellectual property,
express or implied, are granted to either party under this Agreement.
H. FORCE MAJEURE
Neither party shall be responsible for any delay or failure in
performance of any part of this Agreement to the extent that such delay or
failure is caused by fire, flood, lightning, explosion, war, strike, embargo,
government requirement, civil or military authority, act of God, acts or
omissions of carriers, or other similar causes beyond its reasonable control. If
any such condition occurs, the party delayed or unable to perform shall give
notice to the other party as soon as possible.
I. NOTICES
Any notice or other information required or authorized by this
Agreement to be given by either party to the other may be given by hand or sent
(by first class prepaid mail, telex, cable, facsimile transmission, electronic
mail or comparable means of communications) to the other party at the address
referred to below. Any notice or other information given by mail pursuant to
this section that is not returned to the sender as undelivered shall be deemed
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED
OUTSIDE THE BELLSOUTH COMPANIES OR PREDICTIVE SYSTEMS EXCEPT PURSUANT TO A
WRITTEN AGREEMENT. MUST BE STORED IN LOCKED FILES WHEN NOT IN USE.
Agreement
Page 4
to have been given on the fifth (5th) day after the envelope containing such
notice or information was properly addressed, prepaid, registered and mailed.
The fact that the envelope has not been so returned to the sender shall be
sufficient evidence that such notice or information has been duly given. Any
notice or other information sent by telex, cable, facsimile transmission,
electronic mail or comparable means of communication shall be deemed to have
been duly sent on the date of transmission, provided that a confirming copy
thereof is sent by first class prepaid mail to the other party at the address
referred to below, within twenty-four (24) hours after transmission.
BellSouth:
[***]
2400 Century Blvd
Atlanta, GA, 30345
404-471-0756
Company:
[***]
20 Mansell Court
Suite 200
Roswell, GA 30076
With a copy to:
Predictive Systems, Inc.
417 Fifth Avenue
New York, NY 10016
Attention: Legal Dept.
The above addresses may be changed at any time by giving thirty (30) days prior
written notice as above provided.
J. COMPLIANCE WITH LAWS, ORDINANCES, REGULATIONS AND CODES
Both parties shall comply with all applicable federal, state, county
and local laws, ordinances, regulations and codes, including identification and
procurement of required permits, certificates, approvals, and inspections in
connection with the parties' performance hereunder.
K. SPECIAL RECOGNITION
Both parties expressly recognize that each party is both a seller and
reseller of products and services and that nothing agreed to herein is intended
to limit, prohibit or restrict either party's merchandising activities in any
way except as specified herein.
Company expressly recognizes that BellSouth is affiliated with
communications common carriers licensed by the Federal Communications Commission
and state public utility commissions. This Agreement may be subject to such
changes or modifications as any such regulatory body may from time to time
direct in the exercise of its jurisdiction. In the event of a substantial change
or deviation from the state of facts or the degree of regulation from that
existing at the time of the execution of this Agreement that materially alters
the obligations of either party under this Agreement, the affected party shall
have the option to terminate any and all future obligations contemplated under
this Agreement by providing written notice to the other party.
L. INTEGRATION CLAUSE
This Agreement constitutes the entire Agreement between BellSouth and
Company on the subject matter discussed herein. Exhibits A through F referred to
herein and attached hereto are integral parts of this Agreement and are
incorporated herein by this reference.
No course of dealing or failure of either party to exercise any option
or privilege or to strictly enforce any term, right or condition of this
Agreement shall be construed as a waiver of such option, privilege, term, right
or condition. All obligations hereunder incurred prior to the cancellation,
termination, or expiration of this Agreement shall survive such cancellation,
termination, or expiration.
The headings of the sections herein are inserted for convenience only
and are not intended to affect the meaning or interpretation of this Agreement.
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED
OUTSIDE THE BELLSOUTH COMPANIES OR PREDICTIVE SYSTEMS EXCEPT PURSUANT TO A
WRITTEN AGREEMENT. MUST BE STORED IN LOCKED FILES WHEN NOT IN USE.
***Represents material that has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as
amended. Omitted material for which confidential treatment has been requested
has been filed separately with the Securities and Exchange Commission.
Agreement
Page 5
M. ASSIGNMENT
Any assignment or delegation, in whole or in part, of work to be
performed or of any other interest, right or obligation hereunder without the
other party's written consent, except an assignment confined solely to monies
due or to become due, or unless otherwise provided herein, shall be void.
BellSouth shall have the absolute right to assign this Agreement, in whole or in
part, or any event or relationship that occurs as a direct result of this
Agreement, to BellSouth Corporation or to one or more direct or indirect
subsidiaries of BellSouth Corporation whether or not said entities are in
existence on the date of execution hereof. Company shall have the absolute right
to assign this Agreement, in whole or in part, or any event or relationship that
occurs as a direct result of this Agreement, to one or more direct or indirect
subsidiaries of Company whether or not said entities are in existence on the
date of execution hereof.
A party hereto may assign or transfer this Agreement to the successor
of substantially all of its assets without the other party's consent, provided
that (i) the transferee in writing agrees to assume the assigning party's
obligations under this Agreement, and (ii) the assigning party delivers to the
other party hereto written notice of any such assignment and transfer within
thirty (30) days of such assignment and transfer, and a copy of the written
assignment and transfer agreement. Such an assignment and transfer will not
affect the assigning party's obligations to the other party under this
Agreement.
N. CHOICE OF LAW
The validity, construction, interpretation and performance of this
entire Agreement and all transactions under it shall be governed by and
construed in accordance with the domestic law of the State of Georgia without
reference to the conflict of laws principles thereof. If any of the provisions
of this Agreement shall be invalid or unenforceable under said law, such
invalidity or unenforceability shall not invalidate or render unenforceable the
entire Agreement but rather the entire Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or provisions, and
the rights and obligations of Company and BellSouth shall be construed and
enforced accordingly.
O. INDEMNIFICATION
The parties agree to the following indemnification provisions that
arise out of their respective capacities:
(1) With respect to matters of liability that relate directly to use of
the products or services of either party provided as the result of a referral
under this Agreement, the providing party agrees to indemnify and save harmless
the other party from any liabilities, lawsuits, penalties, claims or demands
(including the costs, expenses and reasonable attorney's fees) that may be made
by any third party for (a) injuries (including death) to persons, (b) physical
damage to real or tangible property (excluding software or data) resulting from
alleged defects in such products or services, or (c) breach of warranties.
(2) With respect to matters of liability that do not relate directly to
use of the products or services, each party shall indemnify and save harmless
the other party from any liabilities, lawsuits, penalties, claims or demands
(including the costs, expenses and reasonable attorney's fees) that may be made
by (a) any third party for injuries (including death) to persons or physical
damage to real or tangible property (excluding software or data) that solely
results from the other party's negligent or willful acts or omissions or those
of persons furnished by either party, its agents or subcontractors or (b) any
employee or former employee of either party or any of its subcontractors for
which the other party or its subcontractor's liability to such employee or
former employee would otherwise be subject to payments under the state Worker's
Compensation or similar laws.
Each party agrees to notify the other promptly of any written claims or
demands for which it is responsible hereunder. The indemnifying party shall
defend or settle, at its own expense, any action or suit against the indemnified
party; provided, however, that the indemnifying party shall not settle any such
action or suit in a manner that imposes any obligation on the indemnified party
without the prior written consent of such party, which consent shall not be
unreasonably withheld. The party seeking indemnification shall notify the other
party promptly of any claim for which the indemnifying party is responsible and
shall cooperate with such party in every reasonable way to facilitate the
defense or settlement of any such claim.
P. DISCLAIMERS
NEITHER PARTY OFFERS ANY WARRANTY OF ANY KIND FOR THE PRODUCTS OR
SERVICES THAT THE OTHER PARTY PROVIDES TO A CUSTOMER OR ANY OTHER PERSON OR
ENTITY. ANY WARRANTY OBLIGATION SET FORTH IN ANY AGREEMENT BETWEEN A CUSTOMER
AND THE SELLING PARTY SHALL BE UNDERTAKEN SOLELY BY SUCH PARTY. NEITHER PARTY
MAKES ANY
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED
OUTSIDE THE BELLSOUTH COMPANIES OR PREDICTIVE SYSTEMS EXCEPT PURSUANT TO A
WRITTEN AGREEMENT. MUST BE STORED IN LOCKED FILES WHEN NOT IN USE.
Agreement
Page 6
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY OR THE OTHER PARTY'S CUSTOMERS
WITH REGARD TO THE PERFORMANCE OF THE OTHER PARTY'S PRODUCT OR SERVICES OR THEIR
CONFORMANCE WITH APPLICABLE SPECIFICATIONS OR DOCUMENTATION. AS BETWEEN THE
PARTIES OR BETWEEN A PARTY AND THE CUSTOMERS OF THE OTHER PARTY, ALL WARRANTIES
WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER'S CUSTOMERS OR TO ANY OTHER
PERSON OR ENTITY USING THE OTHER'S PRODUCTS OR SERVICES, IN WHOLE OR IN PART,
FOR LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF TIME, INCONVENIENCE, LOSS OF USE,
OR ANY OTHER INCIDENTAL, SPECIAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL
LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF THE
PRODUCTS OR SERVICES, IN WHOLE OR IN PART, WHETHER IN AN ACTION FOR OR ARISING
OUT OF ALLEGED BREACH OF WARRANTY, ALLEGED BREACH OF CONTRACT, DELAY,
NEGLIGENCE, STRICT TORT LIABILITY OR OTHERWISE. THIS CLAUSE SHALL SURVIVE
FAILURE OF AN EXCLUSIVE REMEDY.
IN NO EVENT SHALL EITHER PARTY, ITS PARENT CORPORATION, AFFILIATED
COMPANIES OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR SPECIAL, CONSEQUENTIAL,
PUNITIVE, OR INDIRECT DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS,
LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS, OR OTHER LOSS AS A RESULT
OF THIS AGREEMENT.
Q. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE
LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH
LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF
WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, SHALL BE LIMITED TO THE
LESSER OF (1) THE FEES PAID FOR THE REFERRAL OUT OF WHICH THE LIABILITY ARISES
OR (2) $100,000; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT LIMIT A PARTY'S
LIABILITY UNDER THIS AGREEMENT FOR PAYMENT OF THE FEES DUE HEREUNDER, OR CLAIMS
FOR INDEMNIFICATION HEREUNDER, ITS BREACHES OF CONFIDENTIALITY HEREUNDER, ITS
WILFUL MISCONDUCT, OR ITS GROSS NEGLIGENCE.
R. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall continue
in effect for five years from the Effective Date ("Term") unless earlier
terminated as set out below. This Agreement may be terminated by either party at
any time upon 30 days written notice to the other party. Upon any expiration or
early termination of this Agreement, the rights and obligations of the parties
under this Agreement will terminate.
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED
OUTSIDE THE BELLSOUTH COMPANIES OR PREDICTIVE SYSTEMS EXCEPT PURSUANT TO A
WRITTEN AGREEMENT. MUST BE STORED IN LOCKED FILES WHEN NOT IN USE.
Agreement
Page 7
S. SURVIVAL OF OBLIGATIONS
Any respective obligations of BellSouth and Company hereunder that by
their nature would continue beyond the termination, cancellation or expiration
of this Agreement, including, by way of example but not limited to,
"CONFIDENTIAL INFORMATION," "RECORDS AND AUDIT" and "INDEMNIFICATION," shall
survive such termination, cancellation or expiration.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above-written.
COMPANY: BELLSOUTH:
PREDICTIVE SYSTEMS, INC. BELLSOUTH MNS, INC.
/s/ David J. Ouellette /s/ Donna A. Lee
- ----------------------------------- -----------------------------------
Signature Signature
David J. Ouellette Donna A. Lee
- ----------------------------------- -----------------------------------
Name (Printed) Name (Printed)
Date: 10/6/00 Date: 10/3/00
------------------------------ ------------------------------
PRIVATE/PROPRIETARY/LOCK
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED
OUTSIDE THE BELLSOUTH COMPANIES OR PREDICTIVE SYSTEMS EXCEPT PURSUANT TO A
WRITTEN AGREEMENT. MUST BE STORED IN LOCKED FILES WHEN NOT IN USE.