Form Of Purchase, Resale & Marketing Agreement

EXHIBIT 10.11


CONFIDENTIAL TREATMENT REQUESTED


[An * Indicates Material that has been Omitted and Separately Filed Under an
Application for Confidential Treatment]


Purchase, Resale and Marketing Agreement


This Purchase, Resale and Marketing Agreement ("Agreement") is executed this ___ day of _____________ 2000 by and between Genuity Solutions Inc. with principal offices at 3 Van de Graaff Drive, Burlington, MA 01083 ("Genuity") and Bell Atlantic Corporation with its principal office at 1320 North Courthouse Road, 5/th/ Floor, Arlington, VA 22201 ("Bell Atlantic")


WHEREAS, Genuity provides data and IP services;


WHEREAS, the parties estimate that there is a multi-billion dollar market opportunity for such services during the next five years;


WHEREAS, where permitted by applicable federal law, Bell Atlantic desires to market and resell Genuity's data and IP services to its customers;


WHEREAS, Bell Atlantic estimates that it could achieve revenues in excess of two billion dollars ($2,000,000,000.00) through the sale of such services within the next five years;


WHEREAS, Genuity desires to have Bell Atlantic market and resell, and Bell Atlantic desires to market and resell Genuity's IP and data services subject to the terms and conditions of this Agreement.


NOW, THEREFORE, in consideration of good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:


1. SALE AND MARKETING OF GENUITY SERVICES


1.1 Appointment. Genuity hereby authorizes Bell Atlantic and those Bell
----------- Atlantic affiliates who place orders hereunder ("Authorized Affiliate(s)") during the term of this Agreement to purchase either for their own use, to use in providing services to their customers, and/or to market and resell those Genuity services defined in the Service Schedules attached hereto (collectively, the "Genuity Services") to end users ("End Users") located in all geographic areas where Genuity offers the Genuity Services and where Bell Atlantic may lawfully offer the Genuity Services ("Territory"). The Genuity Services shall be provided by Genuity or a Genuity affiliate as identified in the applicable Service Schedule. An order for and the provision of a Genuity Service establishes a contract between the Bell Atlantic or the Authorized Affiliate and the Genuity-designated service provider for the Genuity Service under the terms and conditions of this Agreement and the relevant Service Schedule. Bell Atlantic and/or an Authorized Affiliate may designate another Bell Atlantic affiliate or third party to act as a sales agent for such Authorized Affiliate. Bell Atlantic shall be responsible for coordinating its program for such third party sales agents, including providing necessary support and training. Bell Atlantic shall indemnify Genuity for the actions of such third party agents as set forth in Section 10. Bell Atlantic's right to distribute and market Genuity Services shall be further defined in each Service Schedule. Such rights may include the right to resell the Genuity Service as a standalone service, as part of an integrated system or solution, or with value added services. (For the purpose of this agreement, the term "affiliate" shall mean, with respect to any person, any other person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such person.)


1.2 Lead Referrals. Bell Atlantic may in its discretion refer to Genuity any
-------------- offers to purchase or orders for (i) Genuity Services, or (ii) other services offered by Genuity. Genuity may in its discretion refer to Bell Atlantic any offers or prospective offers to purchase the Genuity Services. Any such referral shall be made in accordance with applicable federal law and Section 2.4 of this Agreement. If either party makes such a referral, the referring party shall not, without advance notice to the other, independently pursue sale of the referred opportunity with the potential customer unless the other fails to pursue such referral within a reasonable time. Genuity and Bell Atlantic shall develop, no later than sixty (60) days


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following the Effective Date (as defined in Section 6.1 of this Agreement) a mutually agreed upon lead referral program that includes a commission to be paid by the party that completes a sale pursuant to a referral.


1.3 Non-Exclusivity. Genuity reserves the right to market, distribute and sell
--------------- Genuity Services, directly or indirectly, within and outside of the Territory, and nothing in this Agreement shall limit in any manner Genuity's marketing or distribution activities, or its right to sell directly or appoint other dealers, distributors, licensees or agents within or outside the Territory to sell the Genuity Services. Similarly, Bell Atlantic reserves the right to market, distribute and sell, directly or indirectly, within or outside of the Territory, services that compete with the Genuity Services.


1.4 Service Changes. Except as otherwise provided in a Service Schedule,
--------------- Genuity reserves the right to modify, change or add to any of the Genuity Services at any time, upon forty-five (45) days' notice to Bell Atlantic, and to remove or discontinue any of the Genuity Services at any time, upon ninety (90) days' notice to Bell Atlantic, provided that any such change, modification, addition, removal or discontinuance shall be part of a general action by Genuity with respect to the affected service and its retail and wholesale customers, and shall not affect any Bell Atlantic End User contracts or valid Genuity quotes in existence at the time of the Genuity notice. Genuity specifically agrees to continue to provide any Genuity Service and all related product support affected by such change or discontinuance in accordance with the description of the service and other terms and conditions in any Bell Atlantic End User contract (provided that the End User contract is consistent with the Genuity Service Description and other terms and conditions applicable at the time the contract was signed) or valid Genuity quotes, for the duration of the term of such End User contract or contract that results from such quote.


1.5 Service Schedules. Each Service Schedule shall, at a minimum, include:
----------------- (i) a description of the service, term, and pricing, (ii) the obligations and responsibilities of each party related to the Genuity Service offered under the Service Schedule; (iii) any required End User contract terms (i.e., mandatory flowdown terms) that apply when Bell Atlantic markets or resells the Genuity Service; and (iv) applicable service level agreements.


2. RELATIONSHIP OF THE PARTIES


2.1 Independent Contractors. The relationship of Genuity and Bell Atlantic is
----------------------- that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct and control the day- to-day activities of the other, (ii) constitute the parties as partners, joint ventures, co-owners, or otherwise as participants in a joint or common undertaking, (iii) create a relationship of principal and agent, or (iv) allow either party to create or assume any obligation on behalf of the other except for the obligations that may be specified in this Agreement.


2.2 No Authority to Bind. Each party acknowledges and agrees that it has
-------------------- neither express nor implied authority to accept orders or enter into or modify contracts, whether oral or written, on behalf of the other party. Except for the Genuity Services or as may be specifically set forth in other agreements between the parties, Bell Atlantic shall not represent that any products and services marketed, offered, or sold by Bell Atlantic are approved or endorsed by Genuity in any way.


2.3 Actions by the Company, its Employees and Agents. Each party shall be
------------------------------------------------ solely responsible for the acts and omissions of its employees, agents, and contractors, including, without limitation, all labor costs and expenses.


2.4 InterLATA Services. Bell Atlantic shall not provide or jointly market with
------------------ Genuity a Genuity Service that is, or includes as a necessary, bundled component, an interLATA service in a state until Bell Atlantic has obtained any necessary authorizations or approvals to do so.


3. GENUITY RESPONSIBILITIES


3.1 Provision of Services. Genuity shall provide the Genuity Services to Bell
--------------------- Atlantic and/or to End Users at the rates and in


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accordance with the Service Descriptions and other specifications set forth in this Agreement and the Service Schedules. Genuity shall also provide to Bell Atlantic training, marketing assistance, support, equipment and software and other ancillary services and products as may be set forth in the Service Schedules and this Agreement.


3.2 Operations.
----------


(a) Genuity shall provide Bell Atlantic with mechanized, electronic access and interfaces to those Genuity systems that support Bell Atlantic's marketing, provisioning and support of the Genuity Services to End Users. This access and interface capability shall apply to the following information and functionality: (i) pre-sales information; (ii) ordering and provisioning; (iii) new products literature; (iv) problem identification and isolation to assist Bell Atlantic in its provision of level one End User support; (v) repair/trouble ticketing; and (vi) billing feeds, as appropriate, to the Genuity Services. Such access and interfaces shall be provided in accordance with the implementation schedule set forth in this Section 3.2. Genuity shall be solely responsible for the all costs incurred for system development and implementation necessary to comply with this Section 3.2. Genuity may recover the cost of such development and implementation through the prices it charges all customers for the Genuity Services, but shall not otherwise charge Bell Atlantic any portion of such costs.


(b) Promptly following the Effective Date, Genuity and Bell Atlantic shall each designate by written notice a senior operations point of contact (O-POC) for developing, implementing and maintaining business process interfaces throughout the areas of each party's business affected by this Agreement. The parties shall oversee the rollout of transaction processes for quotes, orders, provisioning, customer care and billing across all Genuity Services. The shared design principles shall be integration across all Genuity Services, customer responsive, web based, scalable, and minimization of manual intervention. A written process architecture shall be developed and maintained by both parties. The first copy of this architecture shall be finalized within one hundred twenty (120) days after the Effective Date. This shall be a dynamic document, available online to both parties, that shall be the basis for identifying improvement opportunities and for operations plans. The parties shall perform quarterly reviews of these plans, with the O-POCs jointly managing the agenda and attendees for such reviews. These reviews shall be alternately hosted by each party at its facility of choice. Genuity shall work with Bell Atlantic to develop and implement new support tools and process improvements with respect to Bell Atlantic's purchase and sale of the Genuity Services. Genuity shall retain all rights to tools and processes it develops, and, at its option, may implement these tools and processes for other customers and resellers.


(c) Bell Atlantic shall be responsible for the End User relationship. Genuity shall provide access to documentation, training materials, and on-line support tools that facilitate Bell Atlantic in providing level one support services for its End Users. At Bell Atlantic's request and at Genuity's expense, Genuity shall provide one time "train the trainer" sessions for level one support for each product or service. These training sessions shall be held at Genuity facilities for class sizes not to exceed 12 people, at mutually agreed times. Bell Atlantic shall pay travel and living expenses for its attendees. At Bell Atlantic's request, Genuity shall provide to Bell Atlantic quotes for fees on a daily basis (plus travel and living expenses) for subsequent "train the trainer" sessions, which sessions shall be held at Bell Atlantic facilities. Genuity shall provide such subsequent sessions upon Bell Atlantic's acceptance of such quote(s).


(d) Genuity shall provide at its expense level two and level three support for the Genuity Services. Bell Atlantic shall provide at its expense level one support for the Genuity Services it resells. For maintenance of Genuity-supplied customer premises equipment, Genuity shall act as service agent for Bell Atlantic on Level II and Level III support situations. This service and support shall be Bell Atlantic branded where practical. Genuity shall work cooperatively with Bell Atlantic and/or Bell Atlantic customers for identification/isolation of


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difficult end-to-end or otherwise elusive problems. Genuity shall assume all escalation and interface responsibilities for its suppliers.


(e) The parties shall agree upon and publish written Bell Atlantic and Genuity escalation and communication paths for the Genuity Services. These documents shall be an addendum to the business process architecture discussed above.


(f) Bell Atlantic and Genuity shall establish an operations review process to review the performance measurements under the service level agreements for each Genuity Service on a monthly basis, and establish action plans and "next steps" as appropriate. These monthly reviews may be conducted by telephone or in face- to-face meetings.


3.3 Business Practices. Genuity and Genuity's representatives and employees
------------------ shall at all times give prompt, courteous and efficient service to End Users it has contact with pursuant to its obligations under this Agreement, or otherwise on behalf of Bell Atlantic. Both parties shall follow all End User interface procedures set forth in a Service Schedule and/or developed and agreed upon by the parties.


3.4 Training Support. Genuity shall specify the level of training required to
---------------- sell and support the Genuity Services. Genuity shall make available, at its expense (other than travel and lodging expenses for Bell Atlantic employees) training support materials and training for the Genuity Services that is substantially equivalent to the training Genuity provides to its internal sales force (excluding Genuity-proprietary content such as strategic planning, internal sales discussions, Genuity market focus, Genuity customer specific information, and similar content) and is sufficient to qualify Bell Atlantic employees to provide the necessary technical expertise to design where applicable (on a pre-sale basis), sell and support the volume and type of Genuity Services which Bell Atlantic has forecast. This training shall be made available initially for a reasonable number of Bell Atlantic sales personnel, as mutually determined by the parties. Genuity shall make subsequent training available for new Genuity Services and significant enhancements to the services, and periodically during the term of this Agreement (no more frequently than once each calendar year) for a reasonable number of new sales personnel. Additional training required by Bell Atlantic shall be provided by Genuity at Bell Atlantic's expense, at a price not to exceed Genuity's reasonable costs of providing the training. The parties shall develop a training support plan within ninety (90) days of the effective date of this Agreement.


3.5 Marketing Support. Genuity shall reasonably assist Bell Atlantic in Bell
----------------- Atlantic's marketing and provision of the Genuity Services to End Users identified by Bell Atlantic. The parties shall develop procedures and guidelines for such marketing support within ninety (90) days following the Effective Date. Such assistance shall include making sales support and technical experts reasonably available for consultation with Bell Atlantic and the End User. At Bell Atlantic's request, Genuity shall provide qualified sales and/or technical support individual(s) to accompany Bell Atlantic on sales calls End Users. In such joint presentation to an End User, Bell Atlantic shall determine whether the proposed service shall be identified as a co-branded offering. Genuity's sales support and technical personnel who work on End User accounts associated with Bell Atlantic marketing activities shall not concurrently provide services pertaining to that End User to either Genuity's internal sales channels or any other reseller of Genuity. Any information about the End User, to include the identification of the sales opportunity, that is provided by Bell Atlantic, or that is developed by Genuity in its support of Bell Atlantic's sales efforts, shall be Bell Atlantic Confidential Information. In providing business and marketing support to Bell Atlantic pursuant to this Section 3.5, Genuity shall not sell or attempt to sell the products or services of any party other than Bell Atlantic, provided, however, that Genuity may,
----------------- while providing such support and in consultation with Bell Atlantic, make recommendations to End Users regarding other Genuity Services available from Bell Atlantic.


3.6 Availability of Services and Support.
------------------------------------


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(a) Genuity shall provide to Bell Atlantic the same type and quality of Genuity Services (including, without limitation, Service Descriptions, service level agreements and remedies, geographic availability, and support) as Genuity provides to other resellers and to its own internal sales channel and retail customers. Genuity shall modify the Genuity Services and add new Genuity Services as reasonably necessary to keep the portfolio of Genuity Services (including, without limitation, Service Descriptions, service level agreements and remedies, capacity availability in the Territory, and support) available under this Agreement competitive and current with comparable services available from other suppliers. Genuity shall not reduce the geographic coverage of a Genuity Service existing as of the date the parties executed this Agreement. Subject to the foregoing, Genuity shall be the sole determiner of its services portfolio and its market strategy, including the market segments upon which it shall focus and the levels of investment it shall make in particular services or market segments, or the geographic locations in which it will offer the Genuity Services.


(b) Genuity shall keep Bell Atlantic informed about new service offerings and significant product enhancements, and shall offer any new services and service enhancements to Bell Atlantic so that Bell Atlantic may market such new services or enhancements to End Users on as timely a basis as Genuity's internal sales channel or Genuity's other resellers or sales agents. In the event that Bell Atlantic has information that one or more of the Genuity Services are not competitive in the market, Bell Atlantic shall provide evidence thereof to Genuity and Genuity shall review this information and meet with Bell Atlantic to provide Genuity's response to Bell Atlantic's information.


(c) Within ninety (90) days of the Effective Date, the parties shall develop a benchmarking process to track prices and related terms for services comparable to the Genuity Services for the purpose of administering this Section 3.6.


3.7 Availability of Competitive Terms and Prices For Individual Customer
-------------------------------------------------------------------- Requests --------


(a) Bell Atlantic may request that Genuity provide reduced prices or discounts, different terms, or changed Service Descriptions ("Custom Bids") for purposes of responding to individual End User requests for proposals or negotiation with the End User. When Bell Atlantic has quoted Genuity Services and the End User has requested a Custom Bid, Bell Atlantic shall as soon as possible consult with Genuity regarding such requests. Genuity agrees to give good faith consideration to such requests, to offer such changes as Genuity determines it is willing to make and to respond to Bell Atlantic within the timeframes of the individual transaction which has generated such request. Bell Atlantic may obtain offers of services comparable to, or as reasonable substitutes for, Genuity Services from third parties. Where prices and/or other terms for such services are both responsive to the particular customer request and more favorable to Bell Atlantic than the prices and/or terms for Genuity Services, Bell Atlantic may notify Genuity that it has received offers that include such favorable prices and terms and request Genuity to meet such prices and terms. Genuity shall respond within the timeframes of an individual sales transaction as requested by Bell Atlantic. The parties agree to establish procedures under which such requests shall be handled, no later than ninety (90) days after the Effective Date, and to add such procedures as a schedule to this Agreement. Genuity shall treat information concerning price reductions and other information requested as Confidential Information of Bell Atlantic. Bell Atlantic shall treat Genuity's response, including any information developed by Genuity and provided to Bell Atlantic regarding pricing and other competitive information, as Confidential Information of Genuity and shall not provide such information to any third party other than in connection with providing a bid to the End User or as otherwise permitted by this Agreement.


(b) Genuity shall be obligated to provide Custom Bids to Bell Atlantic with respect to a Genuity Service where Genuity customarily provides such Genuity Service to other customers on a custom basis. In situations not covered by the preceding sentence, Genuity


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shall not be obligated to respond to Bell Atlantic requests for Custom Bids to the extent they exceed twenty percent (20%) of the quotes requested by Bell Atlantic for a particular Genuity Service in a calendar quarter.


3.8 Proposal Materials. Unless otherwise agreed by Bell Atlantic, all sales
------------------ collateral, proposals, contracts and related proposal documents for Genuity Services covered by this Agreement and marketed by Bell Atlantic shall be prepared and presented by Bell Atlantic, using Bell Atlantic letterhead and other indicia. Genuity shall provide content that may be used without Genuity identification, as requested by Bell Atlantic. Bell Atlantic agrees to take all reasonable steps necessary to protect Genuity's intellectual property rights in such content, including reproducing all copyright notices, if any. Bell Atlantic further agrees that Genuity shall retain all rights in such content. If the End User indicates interest in Genuity services that are outside the scope of the Genuity Services, Genuity shall coordinate with Bell Atlantic before making a proposal for such services. Genuity may submit proposal materials and customer contracts for such other services using Genuity letterhead, forms and indicia.


3.9 Return of Materials. Upon request from Bell Atlantic, Genuity shall return
------------------- or destroy all materials provided by Bell Atlantic related to any proposal development or other marketing activity pertaining to an End User identified by Bell Atlantic. In such event, Bell Atlantic shall return to Genuity or destroy all proposal development or marketing material Genuity has provided to Bell Atlantic relating to such End User.


4. OBLIGATION OF BOTH PARTIES


4.1 No Disparaging Conduct. Neither party shall do anything that would tend to
---------------------- discredit, dishonor, reflect adversely upon, or in any manner injure the reputation of the other party or any affiliate. This provision shall not, however, prevent either party from marketing competing services of either itself or other entities.


4.2 Identification with a Party. Representatives of a party shall not
--------------------------- represent themselves as employees of the other party in contacts with End Users or others.


5. BELL ATLANTIC OBLIGATIONS


5.1 Sales. Bell Atlantic is authorized to sell the Genuity Services in the
----- Territory. Bell Atlantic may not market or sell the Genuity Services to End Users located outside of the Territory without the prior written consent of Genuity.


5.2 Bell Atlantic End User Support. Unless otherwise addressed in a Service
------------------------------ Schedule or in this Agreement, or separately agreed between Bell Atlantic and Genuity, Bell Atlantic shall provide pre- and post-sales support to End Users.


5.3 Representations. Bell Atlantic shall not make any representations or
--------------- statements regarding Genuity Services other than those contained in the applicable Genuity Service Description or approved in writing by Genuity.


5.4 Quotations/End User Billing. Bell Atlantic shall be responsible for
--------------------------- issuing quotations to End Users for Genuity Services at prices to be determined by Bell Atlantic. Bell Atlantic is solely responsible for credit checks, credit approvals, billing and collection of fees for Genuity Services provided to End Users.


5.5 End User Prices. Bell Atlantic shall be responsible for determining the
--------------- prices at which it shall offer the Genuity Services to End Users, and for communicating pricing information, including quotations, to End Users.


5.6 Compensation. Bell Atlantic shall be responsible for compensating its
------------ employees, contractors, agents and other representatives for sales of Genuity Services to End Users.


5.7 End-User Agreement(s). Bell Atlantic shall sell the Genuity Services by
--------------------- means of written agreements by and between End User and Bell Atlantic. Such agreements shall contain terms and conditions that are at least as


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protective of Genuity as the mandatory flowdown terms specified in the applicable Service Schedule.


5.8 Order Forecasts, Bell Atlantic shall provide Genuity with calendar
--------------- quarterly forecasts no later than the first day of the calendar quarter. The forecast shall reflect anticipated demand for the Genuity Services for the next eighteen (18) months by volume for each Genuity Service and shall reflect, if the information is available, the anticipated geographic areas where the Genuity Services shall be sold. Genuity shall treat the forecasts as Bell Atlantic Confidential Information. Within sixty (60) days following the Effective Date of this Agreement, the parties shall develop mutually agreed upon detailed forecasting requirements for each Genuity Service that shall be set forth as supplements to the applicable Service Schedules. The parties agree to work together to make the forecasting process a mutually beneficial business arrangement that supports each party's planning. Bell Atlantic shall make reasonable efforts to provide Genuity with the most complete and accurate forecast information possible for Genuity to effectively plan service availability. Reasonable efforts shall be made by Genuity to make the Genuity Services available to meet Bell Atlantic's forecasts.


6. TERM AND TERMINATION


6.1 Term. This Agreement shall take effect on the date on which, pursuant to
---- their Agreement and Plan of Merger, Bell Atlantic Corporation and GTE Corporation cause a Certificate of Merger to be executed, acknowledged, and filed with the Secretary of State of New York as provided in New York Corporation Law, Section 907 ("Effective Date"), and unless terminated earlier as provided herein, shall continue ...