Exhibit 10.3
Addendum No. 1 to Master
Purchase Agreement dated February 14, 2006
between
RAINMAKER SYSTEMS,
INC.
and
SUN MICROSYSTEMS,
INC.
This Addendum Number 1
(“Addendum”), effective the 31st day of March, 2009
(“Addendum 1 Effective Date”), is made by and between
Rainmaker Systems, Inc., with a place of business at 900 East
Hamilton, Suite 400, Campbell, CA 95008 (“Supplier”)
and Sun Microsystems, Inc., with a place of business at 4150
Network Circle, Santa Clara, CA 95054
(“Sun”).
WHEREAS Supplier and Sun entered
into a certain Master Purchase Agreement effective
February 14, 2006, Sun Contract Reference No. 3451-0207,
under which Sun hired Supplier to perform labor, telesales and
hosting services (the “Agreement”);
WHEREAS, Supplier and Sun will
execute this Addendum on the Addendum 1 Effective Date;
and
WHEREAS, Supplier and Sun desire to
amend the Agreement and replace in its entirety the Hosting
Services Exhibit with Exhibit A (“Application Services
Agreement”) attached hereto and extend the Agreement, as
amended; and
WHEREAS, Supplier and Sun desire the
terms of the Agreement, as amended by this Addendum, to apply to
all SOWs executed or superseded after the Effective Date of this
Addendum 1.
NOW, THEREFORE, in consideration of
the mutual covenants and conditions contained herein, it is hereby
agreed by and between Supplier and Sun as follows:
|
A.
|
Cancellation
of the Hosting Services Exhibit to the Agreement.
|
The parties hereby cancel and
terminate the Hosting Services Exhibit in full, per the terms of
the Agreement, and incorporate into the Agreement by this reference
the terms of the License Agreement for Rainmaker Technology,
entitled the “Application Services Agreement,” attached
hereto as Exhibit A.
The license terms related to any
Rainmaker technology and any third party technology provided by
Supplier referenced or required by Sun for performance of the
Services will be set forth in the separate License Agreement
between the parties, a copy of which is attached as Exhibit
A.
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.
30 MAR09
-1-
|
C.
|
New
Definitions to the Agreement.
|
Section 2, Definitions, of the
Agreement is amended to add in the following new
definitions:
25. “Service
Information” means any information, including Personal
Information, data, software, or files received by Supplier from or
on behalf of Sun in connection with the performance of the Services
hereunder.
26. “Sun Facilities”
means the Sun site or facility identified by the parties that will
be used by Supplier and Workers to the extent necessary to provide
the Services.
27. “Supplier
Facilities” means the Supplier site or facility identified by
the parties that will be used by Sun and its employees, agents and
contractors to the extent necessary to provide the
Services.
28. “Sun Direct
Competitor” means any entity, as well as their Affiliated
Companies, which provide products or services that compete with the
products or services provided by Sun to its customers as
determined, and may be revised annually, by Sun; provided however
that any such revisions shall not have a retroactive effect. A list
of the Sun Direct Competitors as of the Addendum 1 Effective Date
are set forth on Exhibit C.
|
D.
|
Revised,
Deleted and New Sections of the Agreement.
|
1. Section 1
(“Scope”) of the Agreement is amended to add in the
following new sub-Sections:
1.4 Country Joining
Agreement. The parties
agree that the performance of the programs and services under the
Agreement may be provided in multiple countries. All of the
parties’ rights and obligations shall apply with the same
force and effect to any of Supplier and Sun’s Affiliated
Companies (defined below) that are covered by the Agreement or
those entities of Supplier and Sun that execute a “Country
Joining Agreement.” The parties will negotiate in good faith
any additional terms, conditions and schedules that are required to
conduct business or provide services in any particular country. Any
additional terms and conditions will be reflected in the Country
Joining Agreement together with the corresponding schedules. Each
Country Joining Agreement and the corresponding schedules will
apply only to the country or geographic region for which the
Country Joining Agreement was executed.
1.5 The Agreement is Binding on
Affiliated Companies. The
Agreement applies to and binds affiliated companies of Supplier and
Sun that provide written notice of their acceptance of these terms.
Written issuance of, or acknowledgment of acceptance of, a purchase
order referencing the Agreement or execution of a Country Joining
Agreement will constitute acceptance of the terms.
[****]=Certain information has been omitted and
filed separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
30 MAR09
-2-
2. The parties wish to revise
sub-Section 6.2.1 (“Compliance with Laws”) in the
first sentence as follows: “In connection with the
performance of this Agreement and any SOW , Supplier
will obtain . . . .” The remainder of this section will
remain as written.
3. Sub-Section 3.5.4 (“No
Hire Agreement”) is deleted in its entirety and replaced with
the following:
3.5.4
Non-Solicitation.
****
4. Section 3.5
(“Workers”) is amended to add the following new
Sub-Sections:
3.5.6 Communications to
Employees. Supplier shall
only communicate with Sun employees in accordance with the terms of
this Agreement and any SOW or for the purposes of providing
Services under this Agreement and its Ancillary Documents. Sun and
Supplier each agree that they shall not communicate employment and
contractual terms on behalf of the other.
3.5.7 Travel and Relocation
Costs. Supplier shall be
financially and operationally responsible for all travel and
relocation requirements and costs caused by the transfer of
location of Workers under this Agreement. Notwithstanding the
foregoing, travel expenses of Workers may be reimbursed by Sun to
Supplier in accordance with Sun’s Contractor Travel
Guidelines as set forth in an SOW.
3.5.8 Material Staffing
Changes. Supplier shall
staff the projects to be performed in the SOW in accordance with
the terms of the SOW. The expected staffing plan for the Services
will be set forth in the SOW, as applicable. Material proposed or
actual changes to the staffing levels and positions during the
first twelve (12) months following the corresponding SOW
Effective Date must be reported to Sun each month. A material
change in staffing is considered to be any change of **** or more
from each figure within the Workers projection tables of the SOW,
if applicable. Any material proposed changes to staffing levels
during this period are subject to Sun’s approval, which
approval will be based on Sun’s reasonable satisfaction that
such changes will not have an adverse impact on the
Supplier’s ability to perform its obligations under the
Agreement. The Parties agree that this review and approval does not
constitute a derogation of Supplier’s management
responsibilities.
3.5.9 Compensation.
Supplier shall be responsible for
determining the compensation and any bonuses paid to
Workers.
3.5.10 Workers Are Not Sun
Employees. Except as
otherwise expressly set forth in this Agreement, the Parties intend
to create an independent contractor relationship. No officer,
director, employee, agent, affiliate, contractor or Subcontractor
retained by Supplier to perform work on Sun’s behalf
hereunder shall be an officer, director, employee, affiliate,
contractor or Subcontractor respectively of Sun and no individual
will be an agent of the other. Supplier, not Sun, has the
right,
[****]=Certain information has been omitted and
filed separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
30 MAR09
-3-
power, authority and duty to
supervise and direct the activities of the Workers and to
compensate such Workers for any work performed by them on behalf of
Sun pursuant to this Agreement. Supplier, and not Sun, shall be
responsible and therefore solely liable for all acts and omissions
of Supplier and Workers.
3.5.11 Replacement,
Qualifications and Retention of Workers
3.5.11(a) Sufficiency and
Suitability of Workers. Supplier shall assign sufficient Workers to
provide the Services in accordance with this Agreement and such
Workers shall possess suitable competence, ability and
qualifications and shall be properly educated and trained for the
Services they are to perform. Supplier shall ensure that the
Workers it assigns to perform the Services for Sun under the terms
of this Agreement are not included in any exclusion lists published
by the United States government. It will also ensure that the most
recent country of citizenship or permanent residency of these
Workers is not subject to any trade embargoes or restrictions
imposed by the United States government.
3.5.11(b)-
****
3.5.11(c)-
****
3.5.12
****
3.5.13 Conduct and
Compliance. While at Sun
Facilities, Workers shall; (a) comply with the Sun Rules and
other rules and regulations regarding personal and professional
conduct generally applicable to personnel at such Sun Facilities
(and communicated to and received by Supplier in advance in writing
or by any other means generally used by Sun to disseminate such
information to its employees or contractors), other than those
rules and regulations only applicable to Sun Personnel;
(b) comply with reasonable requests of Sun personnel
pertaining to personal and professional conduct; (c) attend
workplace training offered by Sun at Sun’s request; and
(d) otherwise conduct themselves in a businesslike manner. In
addition and as permitted by applicable Laws, any Workers who works
(or is scheduled to work) at Sun Facilities may be subject to a
background check.
3.5.14 Identification of
Workers. All Workers
shall clearly identify themselves at Sun Facilities as Workers and
not as employees of Sun. This requirement shall apply to any and
all communications with Sun employees, whether oral, written or
electronic.
[****]=Certain information has been omitted and
filed separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
30 MAR09
-4-
3.5.15 Substance
Abuse. Supplier agrees to
immediately remove any Workers who engage in substance abuse while
on Sun Facilities, while driving a vehicle, or while performing
Services. Substance abuse includes (a) the purchase, sale,
attempted sale, possession or use of illegal drugs, and/or drug
paraphernalia, (b) the misuse of prescription or
non-prescription drugs, or (c) the irresponsible use or abuse
of alcohol. Supplier represents and warrants that it has and will
maintain substance abuse policies, in each case in conformance with
Applicable Laws, (including the Drug Free Workplace Act of 1988, in
the United States) and Workers will be subject to such policies.
Supplier represents and warrants that it shall require its
Subcontractors and Affiliated Companies providing Services to have
and maintain such policy in conformance with Applicable Law and to
adhere to this provision.
3.5.16 Union
Agreements. Supplier
shall provide Sun not less than ninety (90) days notice of the
expiration of any collective agreement with unionized Workers who
are Rainmaker employees.
3.5.17 Non-Disclosure
Agreement. Each party
shall ensure that all third parties to whom it provides
Confidential Information under this Agreement shall be subject to a
Confidentiality Agreement with provisions similar to those that
exist between the parties.
5. Section 6
(“Compliance”) is amended to add the following new
sub-Sections:
6.2.3 Compliance Data and
Reports. At no additional
charge, Supplier shall provide, at Sun’s reasonable request,
Sun with data and reports in Supplier’s possession necessary
for Sun to comply with all Applicable Laws.
6.2.4 Awareness of
Laws. Supplier shall
maintain general familiarity with the legal and regulatory
requirements applicable specifically to the principal businesses of
Supplier (including laws generally applicable to telesales and
labor services). At Sun’s request, Workers shall participate
in Sun provided legal compliance training programs.
6.2.5 Absence of
Litigation. Each Party
represents and warrants that no claim, litigation, proceeding,
arbitration, investigation or material controversy is pending, has
been threatened or is contemplated which, in its reasonable
opinion, would have a material adverse effect on a Party’s
ability to enter into this Agreement or perform its obligations
hereunder.
6. A new Section 6.5
(“Sarbanes-Oxley Compliance”) is added to the Agreement
as follows:
6.5 Sarbanes-Oxley
Compliance.
6.5.1 Cooperation.
Upon Sun’s reasonable request,
Supplier shall cooperate with Sun in respect to compliance with the
Sarbanes-Oxley Act of 2002 and implementing regulations,
(“SOX”), including in particular but without limitation
the adequacy of internal control over financial reporting pursuant
to Section 404 of SOX if and to the extent that
Supplier’s services affect Sun’s SOX compliance.
Accordingly, Supplier agrees to the following:
(a) Supplier shall maintain complete
and accurate records and documentation of transactions, processes
and controls performed for Sun, if any, especially as they relate
to Sun’s financial information and any required disclosures
thereof, which records and documentation will be subject to audit
by Sun or its representatives as provided in Section 7 below;
and
[****]=Certain information has been omitted and
filed separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
30 MAR09
-5-
(b) Supplier shall notify Sun
immediately of any organization, security-related or other issues
that Supplier knows or suspects may reasonably affect the ability
of Sun to comply with SOX, including but not limited to any
security-related issue that affects any Deliverable.
6.5.2 SAS Audit.
In addition to obligations under
Section 6.5.1, if Supplier is providing any Services that
(a) in whole or in part interface with, add to or modify any
part of Sun’s information systems that process financial
transactions, (b) are used in or support the preparation of
financial reports, or (c) support the general control
environment of such information systems, including without
limitation program or project management and systems access or
administration of the financial control environment
(“Financial Control Services”), then this
Section 6.5.2 applies. Otherwise, the provisions in this
section 6.5.2 shall not apply.
(a) Supplier agrees to be subject to
a security audit , no more than once each year, as it relates to
this Agreement and the operations of Supplier in relation to the
Financial Control Services provided pursuant to this Agreement
(“Compliance Audit”). The Compliance Audit shall cover
all of Supplier’s facilities and operations involved with the
performance of the Financial Control Services and activities
related to this Agreement, including an inspection of facilities,
access to relevant systems, a review of relevant records and a
review of relevant internal controls and procedures. If necessary
for the proper conduct of such Compliance Audits, upon
Supplier’s request, Sun shall, and shall use reasonable
efforts to cause its auditors to, provide reasonable information to
and cooperation with Supplier and its auditors, and to coordinate
the related efforts of the auditors.
(b) The reports resulting from
Compliance Audits shall be those known as “readiness
reports” (reports on policies and procedures placed in
operation and tests of operating effectiveness) in relation to SAS
70, or such other form as agreed to in writing by Sun
(“Reports”). Sun may provide the Reports to its
auditors,
