<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 5, 2000
REGISTRATION NO. 333-32738
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TELCOBUY.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 5065 43-1881103
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
60 WELDON PARKWAY
ST. LOUIS, MISSOURI 63043-3101
(314) 301-2700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JAMES P. KAVANAUGH
TELCOBUY.COM, INC.
60 WELDON PARKWAY
ST. LOUIS, MISSOURI 63043-3101
(314) 301-2700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES OF ALL CORRESPONDENCE TO:
<TABLE>
<S> <C>
JAMES A. KEARNS LELAND E. HUTCHINSON
MICHAEL I. OBERLANDER WINSTON & STRAWN
BRYAN CAVE LLP 35 WEST WACKER DRIVE
ONE METROPOLITAN SQUARE CHICAGO, ILLINOIS 60601-9703
211 NORTH BROADWAY, SUITE 3600 (312) 558-5600
ST. LOUIS, MISSOURI 63102-2750 (312) 558-5700 (FAX)
(314) 259-2000
(314) 259-2020 (FAX)
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions), which other than the SEC registration fee, NASD
filing fee and Nasdaq National Market listing fee are estimates, payable by the
Registrant in connection with the sale and distribution of the shares registered
hereby:
<TABLE>
<S> <C>
SEC registration fee........................................ $ 26,400
NASD filing fee............................................. 10,500
--------
Nasdaq National Market listing fee.......................... 95,000
--------
Printing and engraving expenses............................. 100,000*
--------
Accounting fees and expenses................................ 200,000*
--------
Legal fees and expenses..................................... *
--------
Blue Sky fees and expenses (including legal fees)........... *
--------
Transfer Agent and Registrar fees and expenses.............. *
--------
Miscellaneous expenses...................................... *
--------
Total.................................................. $ *
========
</TABLE>
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* Estimated
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities including reimbursement for expenses
incurred arising under the Securities Act of 1933, as amended. As permitted by
the Delaware General Corporation Law, the Registrant's Certificate of
Incorporation includes a provision that eliminates the personal liability of its
directors for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the Delaware General Corporation Law regarding unlawful dividends
and stock purchases or (iv) for any transaction from which the director derived
an improper personal benefit. As permitted by the Delaware General Corporation
Law, the Bylaws of the Registrant provide that (i) the Registrant is required to
indemnify its directors and officers to the fullest extent permitted by the
Delaware General Corporation Law, (ii) the Registrant may indemnify its other
employees and agents as set forth in the Delaware General Corporation Law, (iii)
the Registrant is required to advance expenses, as incurred, to its directors
and executive officers in connection with a legal proceeding to the fullest
extent permitted by the Delaware General Corporation Law, and (iv) the rights
conferred in the Bylaws are not exclusive. The Registrant intends to enter into
Indemnification Agreements with each of its directors and executive officers to
give such directors and officers additional contractual assurances regarding the
scope of the indemnification set forth in the Registrant's Certificate of
Incorporation and to provide additional procedural protections. Except as
described in the prospectus contained in this Registration Statement, at present
there is no pending litigation or proceeding involving a director, officer or
employee of the Registrant regarding which indemnification is sought, nor is the
Registrant aware of any threatened litigation that may result in claims for
indemnification. The indemnification provision in the Registrant's Certificate
of Incorporation and Bylaws and the Indemnification Agreements entered into
between the Registrant and each of its directors and executive officers may be
sufficiently broad to permit indemnification of the Registrant's directors and
executive officers for liabilities arising under the Securities Act of 1933, as
amended. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
II-1
<PAGE> 3
Registrant pursuant to such provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
The Registrant, with approval by the Registrant's Board of Directors, expects to
obtain directors' and officers' liability insurance.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Prior to the closing of this offering, telcobuy.com LLC will be merged into
telcobuy.com, Inc. and Class A membership units will convert into shares of
Series A preferred stock at the rate of one share per membership unit, Class B
membership units will be converted into Class C membership units at the rate of
64.9148 Class C membership units per Class B membership unit, and Class C
membership will be converted into common stock of the Registrant at the rate of
one share per Class C membership unit.
Since inception, we have issued and sold the following securities:
1. On September 29, 1999, we were formed as a limited liability company
and issued to World Wide Technology, David L. Steward and James P.
Kavanaugh percentage interests, in exchange for initial capital
contributions valued at $81.5 million, $0 and $0, respectively.
2. On January 21, 2000, we recapitalized the limited liability company and
between January 21, 2000 and March 2, 2000, we issued and sold an
aggregate of 110,000 Class A membership units and 7,425,000 Class C
membership units to entities affiliated with Highland Capital Partners,
entities affiliated with Summit Partners and Donaldson, Lufkin &
Jenrette Securities Corporation, for an aggregate consideration of
$27,500,000. Also, as of January 21, 2000, we issued to World Wide
Technology 100,000 Class B membership units and 17,358,525 Class C
membership units, to David L. Steward 2,700,000 Class C membership
units, and to James P. Kavanaugh 6,525,000 Class C membership units, in
exchange for the percentage interests in the limited liability company
that each owned prior to the recapitalization. Donaldson, Lufkin &
Jenrette Securities Corporation acted as a placement agent in
connection with the issuance and sale of securities to the entities
affiliated with Highland Capital Partners and Summit Partners.
3. On March 2, 2000, we issued to LeadingEdge Investors 2000, L.L.C., an
investment fund comprised of partners of Bryan Cave LLP, including
Robert T. Ebert, Jr., 30,737 Class C membership units for an aggregate
consideration of $75,000.
4. On February 16, 2000, we approved the Unit Option Plan effective as of
January 27, 2000, and shortly thereafter granted options to purchase an
aggregate of 1,790,750 Class C membership units at an exercise price of
$4.05 per Class C membership unit to a total of approximately 375
employees, consultants, directors and advisory directors of
telcobuy.com and World Wide Technology. None of such options have been
exercised.
The issuances of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act, or Regulation D promulgated thereunder, or with respect to
issuances to employees, directors and consultants, Rule 701 promulgated under
Section 3(b) of the Securities Act as transactions by an issuer not involving a
public offering or transactions pursuant to compensatory benefit plans and
contracts relating to compensation as provided under Rule 701. The recipients of
securities in each such transaction represented their intentions to acquire the
securities for investment purposes only and not with a view to or for sale in
connection with any distribution thereof and appropriate legends were affixed to
the share certificates and warrants issued in such transactions. These issuances
were made without general solicitation or advertising. All recipients either
received adequate information about us or had adequate access, through their
relationships with us, to information about us.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See Exhibit Index.
II-2
<PAGE> 4
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of St.
Louis, State of Missouri, on May 5, 2000.
TELCOBUY.COM, INC.
By: /s/ JAMES P. KAVANAUGH
------------------------------------
James P. Kavanaugh
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JAMES P. KAVANAUGH Director and Chief Executive May 5, 2000
- --------------------------------------------------- Officer (Principal Executive
James P. Kavanaugh Officer)
/s/ THOMAS W. STRUNK Director and Chief Financial May 5, 2000
- --------------------------------------------------- Officer (Principal Financial
Thomas W. Strunk Officer and Principal Accounting
Officer)
* Chairman of the Board May 5, 2000
- ---------------------------------------------------
David L. Steward
* Director May 5, 2000
- ---------------------------------------------------
Scott C. Collins
* Director May 5, 2000
- ---------------------------------------------------
Sean M. Dalton
* Director May 5, 2000
- ---------------------------------------------------
Robert T. Ebert, Jr.
*By: /s/ JAMES P. KAVANAUGH
- ---------------------------------------------------
James P. Kavanaugh
Attorney-In-Fact
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1* Underwriting Agreement
2.1* Form of Merger Agreement to be entered into by telcobuy.com
LLC and the Registrant
3.1+ Certificate of Incorporation of the Registrant
3.2+ Bylaws of the Registrant
4.1* Specimen certificate representing the Registrant's Common
Stock
4.2* Certificate of Designation for Series A Preferred Stock
5.1* Opinion of Bryan Cave LLP regarding the validity of the
Common Stock
10.1 General Services Agreement between Registrant (as successor)
and World Wide Technology, Inc. dated January 21, 2000 and
made effective as of October 1, 1999
10.2++ Licensing Agreement between Registrant (as successor) and
World Wide Technology, Inc. dated January 21, 2000 and made
effective as of October 1, 1999
10.3 Employment Agreement between Registrant (as successor) and
James P. Kavanaugh dated January 21, 2000
10.4 Employment Agreement between Registrant (as successor) and
Thomas M. Strunk effective as of January 21, 2000
10.5 Employment Agreement between Registrant (as successor) and
Mark J. Catalano effective as of January 21, 2000
10.6 Employment Agreement between Registrant (as successor) and
Robert M. Olwig effective as of January 21, 2000
10.7 Unit Option Plan
10.8 2000 Stock Option Plan
10.9* Stockholders Agreement by and among the Registrant, David L.
Steward, James P. Kavanaugh, World Wide Technology, Inc.,
Summit V Advisors Fund, L.P., Summit V Advisors (QP), L.P.,
Summit Investors III, L.P. Summit Ventures V, L.P., Highland
Capital Partners V Limited Partnership, Highland Subfund
V-TCB Limited Partnership, Highland Entrepreneurs' Fund V
Limited Partnership, Donaldson, Lufkin & Jenrette Securities
Corporation, DLJ Capital Partners II, LLC, and LeadingEdge
Investors 2000, L.L.C. dated , 2000
10.10* Form of Indemnification Agreement between the Registrant and
each of James P. Kavanaugh, Thomas W. Strunk, David L.
Steward, Scott C. Collins, Sean M. Dalton, and Robert T.
Ebert, Jr.
10.11++ Agreement for the Purchase of Goods by and between
Telesector Resources Group, Inc. and Registrant (as
assignee) effective as of January 28, 1999
10.12++ Product Purchase Agreement by and between GTE Communication
Systems Corporation, acting through its GTE Supply Division,
and Registrant (as assignee) effective as of November 1,
1997
10.13++ Contract No. 99006326 between SBC Operations and Registrant
(as assignee) effective as of September 9, 1999
10.14++ Agreement No. 99006728 between SBC Operations, Inc. and
Registrant (as assignee) effective as of May 1, 1999
10.15++ Product Resale Amendment No. WWTI-I between Lucent
Technologies Inc. and Registrant (as assignee) effective as
of April 5, 1999
10.16++ Reseller Contract between Registrant (as assignee) and
Lucent Technologies Inc. effective as of April 15, 1997
10.17++ Product Resale Agreement between Lucent Technologies Inc.
and Registrant (as assignee) effective as of December 18,
1998
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
10.18++ Total Solution Provider Agreement between Fujitsu Network
Communications, Inc. and Registrant (as assignee) effective
as of September 15, 1997
10.19++ General Agreement between Southwestern Bell Telephone
Company and Registrant (as assignee) effective as of October
26, 1990
10.20++ General Agreement No. 98005906 between SBC Operations, Inc.
and Registrant (as assignee) effective as of March 15, 1999
10.21* Loan Agreement dated March 13, 2000 by and between
telcobuy.com LLC and Mercantile Business Credit Inc.
23.1+ Consent of KPMG LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page of
Registration Statement)
27.1+ Financial Data Schedule
</TABLE>
- ------------
* To be filed by amendment.
+ Previously Filed.
++ Confidential Treatment will be requested with respect to certain portions of
this exhibit.
<PAGE> 1
EX.10.1
GENERAL SERVICES AGREEMENT
This GENERAL SERVICES AGREEMENT is dated January 21, 2000 and made
effective as of October 1, 1999, between World Wide Technology, Inc., a Missouri
corporation ("WWT"), and telcobuy.com LLC, a Delaware limited liability company
("TCB", each of WWT and TCB being a "PARTY" and together the "PARTIES").
RECITALS
A. TCB is a majority-owned subsidiary of WWT and formerly a division of
WWT, and WWT has provided certain services to TCB and its
predecessors.
B. Because WWT's ownership of TCB will be reduced, the Parties wish to
state formally the terms on which certain essential services will
continue to be provided by WWT to TCB concerning information technology
and Web-hosting services and administration, as well as certain other
back-office and consulting services needed by TCB.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
Various terms used in this Agreement are defined in the Definitional
Appendix; the defined terms used in this Agreement begin with a capital letter.
Various interpretative matters for this Agreement are also set forth in the
Definitional Appendix. The Definitional Appendix is an integral part of this
Agreement.
ARTICLE 2. TERM
2.1. STATED TERM. This Agreement commences on the Effective Date and will
continue in effect until, but excluding, the first anniversary thereof,
unless terminated earlier by one or both of the Parties in accordance
with Article 13, or extended as provided below.
2.2. RENEWAL. The term of this Agreement will be automatically extended for
two successive one-year periods unless, at the option of TCB, it gives
Notice to WWT, at least 90 days prior to the then current term, of
TCB's election to not renew this Agreement. Upon Expiration, WWT shall
provide transition assistance as set forth in Section 2.3 below.
2.3. TRANSITION ASSISTANCE. For up to 180 days after Expiration, WWT shall
comply with TCB's reasonable requests for assistance in engaging or
training another Person or Persons to provide, and for records and
other information relating to, the Services rendered by WWT preceding
that Expiration. TCB shall reimburse and pay WWT's Transition Expenses
in accordance with invoices submitted to TCB by WWT. Article 1,
Articles 8 through 12 and Articles 14 through 25 shall apply in this
situation as though
<PAGE> 2
this Agreement had not Expired. WWT may cease providing transition
assistance, immediately upon Notice to TCB, if TCB has not paid the
amount described in a Nonpayment Notice by the tenth Business Day after
the Nonpayment Notice was given. If the records or other information
provided by WWT are Confidential Information, Article 10 shall also
apply as though this Agreement had not Expired.
ARTICLE 3. SERVICES
3.1. SCHEDULES. During the first year of the term of this Agreement, WWT
shall provide, and TCB shall pay for, such Services as TCB may request
during the effectiveness of this Agreement. The Services are described
on Schedules 1 and 2 to this Agreement, which are an integral part of
this Agreement. After the first year of the term of this Agreement, WWT
shall no longer be required to provide the requested Services, unless
TCB shall have extended the term of this Agreement as provided in
Section 2.2. At no time shall TCB be required to use WWT for any
Services.
3.2. STANDARD OF CARE. WWT shall use the same care in rendering the Services
to TCB as it uses in rendering services on behalf of WWT itself and the
WWT Business Units and divisions. Further, WWT's care in rendering the
Services shall be at least equal to the care that it has used in
providing each Service to TCB during the period in which TCB was a
division of WWT.
3.3. MANNER AND PLACE OF PERFORMANCE. WWT shall render each Service
requested by TCB in accordance with any terms (including any time
period) described on the corresponding Schedule or any applicable SLA,
though WWT has full discretion about how to render each Service as that
Service is so described. WWT is not obligated to render any Service or
Task in the same manner (such as using the same personnel or other
assets of WWT) as it previously rendered that Service or Task, whether
before or after the Effective Date. Each Service will be performed at
WWT's offices or the other place or places it was rendered most
recently before the Effective Date, except as described in the
corresponding Schedule or except as Subcontracted in accordance with
this Agreement. TCB shall afford access to its premises as necessary or
reasonably appropriate to permit a Service or Task to be rendered.
3.4. RECIPIENTS OF SERVICES. The Services shall be rendered solely to, or
for the direct benefit of, TCB. TCB may not assign, license, or
otherwise transfer or provide, whether for or without consideration,
any right to any Service, in whole or in part, to any Person. TCB may,
however, provide any other Person (whether for or without
consideration) any product or information of TCB resulting or derived
from any Service or Task, to the extent not prohibited by Article 10.
3.5. SUBCONTRACTING SERVICES. WWT has Subcontracted certain of the Services,
in whole or in part, before the Effective Date; the Schedules indicate
those Services that are Subcontracted and the corresponding
Subcontractors as of the Effective Date. TCB consents to that
Subcontracting and those Effective Date Service Subcontracts and
2
<PAGE> 3
Subcontractors. WWT's subcontracting after the Effective Date, however,
is subject to these terms:
(a) WWT may, without any consent or approval of TCB, (i)
Subcontract any Service, in whole or in part, to any Person,
including any Affiliate of WWT, (ii) amend any Service
Subcontract, or (iii) cease to Subcontract any Service, in
whole or in part. However, WWT's election to Subcontract
Services shall not relieve WWT of any of its obligations
hereunder as though WWT were performing the work.
(b) Other than an Effective Date Service Subcontract, TCB shall
have no indemnification obligation under Section 14.4(b)
regarding any Service Subcontract entered into by WWT without
TCB's Reasonable Consent. Also, if WWT, without TCB's
Reasonable Consent, enters into any amendment to (i) an
Effective Date Service Subcontract, or (ii) any other Service
Subcontract to which TCB had given its Reasonable Consent, TCB
shall be liable under Section 14.4(b) only for any Damages of
WWT or any of its Indemnified Agents that would have resulted
without that amendment; that is, TCB shall not be liable under
Section 14.4(b) for any increase in Damages that results from
an amendment of that kind.
WWT shall remain responsible for providing to TCB any Service that is
Subcontracted, in whole or in part. Also, except as described in
Section 14.4(b), WWT shall be solely responsible for its obligations to
the Subcontractor (including any applicable Subcontract Termination
Penalty) under each Service Subcontract.
3.6. INFORMATION REGARDING SERVICES. Each Party shall make available to the
other Party any information required or reasonably requested by that
other Party regarding the performance of any Service and shall be
responsible for timely providing that information and for the accuracy
and completeness of that information. But a Party shall not be liable
for not providing any information that is subject to a confidentiality
obligation owed by it to a Person other than an Affiliate of it or the
other Party. A Party shall not be liable for any impairment of any
Service caused by its not receiving information, either timely or at
all, or by its receiving inaccurate or incomplete information from the
other Party that is required or reasonably requested regarding that
Service.
3.7. WARRANTY DISCLAIMER. WWT warrants that the services will be provided in
a professional and workmanlike manner consistent with the manner with
which WWT performs services for itself and its best customers. Subject
thereto, WWT MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING ANY SERVICE OR TASK OTHER THAN AS STATED IN THIS
AGREEMENT. WWT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
REGARDING THE SERVICES.
3
<PAGE> 4
ARTICLE 4. SERVICE LEVEL
4.1. CONTINUATION OF LEVEL OF SERVICE. WWT shall provide substantially the
same Level of each Service, and each Task, as it provided to TCB during
the period in which TCB was a division of WWT, except as otherwise
agreed in accordance with this Agreement.
4.2. CHANGES IN LEVEL OF SERVICE. The Level of any Service may be changed by
the Parties' agreement, so long as that agreement is in writing and
includes a mutually acceptable corresponding Price for the changed
Level of Service. A change in the Level of a Service shall be effective
pursuant to such subsequent agreement.
ARTICLE 5. [RESERVED]
ARTICLE 6. SERVICES OBTAINED FROM OTHERS
TCB may perform itself or obtain from any Person other than WWT or any
Subcontractor any service or services to supplement or substitute for all or any
portion of a Service.
ARTICLE 7. PRICES
7.1. BACK OFFICE SERVICES. The Prices paid by TCB to WWT for Back Office
Services shall equal the sum of:
(a) the actual direct costs incurred by WWT for hourly personnel
providing such Services, including the time of such personnel
determined according to their respective hourly rates, plus
(b) an allocation to TCB of WWT's indirect costs incurred in
providing such Services, determined on a consistent basis with
WWT's cost allocations to the WWT Business Units and
divisions, plus
(c) up to 20% of the sum of the amounts in subparagraphs (a)
and (b).
7.2. QUARTERLY REVIEW. Not later than the 10th day of each quarter, the WWT
Representative and the TCB Representative shall meet to discuss the
Prices for the Back Office Services, based on:
(a) the current and expected Levels of such Back Office Services,
and
(b) WWT's staffing and cost structure in providing the Back
Office Services.
The Parties shall negotiate in good faith to reach agreement on the Price for
that Service by the 30th day of each quarter.
7.3. DISAGREEMENT ON BACK OFFICE SERVICE PRICING. If the Parties do not
agree by the 30th day of each quarter on the Price at which any Back
Office Service shall be provided, the
4
<PAGE> 5
Dispute shall be resolved by the Dispute Resolution Procedure. Pending
resolution of that Dispute, the Price for that Service shall continue
to be the Price in effect during the preceding quarter. The Price
determined by resolution of that Dispute shall be deemed effective as
though the Parties had agreed to it as of the preceding quarter.
Accordingly:
(a) Any excess amount paid by TCB shall be credited (without
interest) to the next invoice or invoices for any Service or
Services payable by TCB after the date of resolution, or to
the extent full credit cannot be given to invoiced amounts
payable within 30 days after the date of resolution, paid
(without interest) by WWT by wire transfer of immediately
available funds to an account or accounts designated by TCB;
or
(b) any amount due to WWT shall be paid (without interest) within
30 days after the date of resolution by wire transfer of
immediately available funds to an account or accounts
designated by WWT.
7.4. CONSULTING SERVICES. The Prices paid by TCB to WWT for Consulting
Services shall be determined on a case-by-case basis according to
separate proposals made by WWT and accepted by TCB from time to time
for the specific provision of such Consulting Services. WWT agrees that
the Prices quoted to TCB for Consulting Services will not exceed the
prevailing market rates for such Services at such time.
ARTICLE 8. PAYMENT
8.1. INVOICES. WWT shall submit to TCB monthly one or more invoices for the
Services. Each invoice shall indicate for each TCB Business Unit:
(a) the amount charged for each Service covered by that invoice;
(b) if the Service is a Use-based Service, the calculation of the
invoiced amount or the basis on which that amount was
determined, and
(c) if that invoice includes any credit or offset for TCB, the
amount and purpose of that credit or offset.
Each invoice should also indicate the sales, use, or similar taxes
being collected on each Service, or part of a Service, that WWT is
taxable. An invoice may cover more than one Service.
8.2. PAYMENT. TCB shall pay the undisputed amount of each invoice within 30
days after the date of that invoice.
8.3. METHOD OF PAYMENT. TCB shall pay WWT by check or wire transfer of
immediately available funds to an account or accounts designated by
WWT. All payments shall be made in United States currency.
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8.4. INTEREST. WWT may charge interest on any past due invoiced amount at
the annual rate of 14% (or, if lower, the highest lawful rate) from the
due date until paid in full with accrued interest. Any payment of
interest only is not a cure or WWT's sole remedy for nonpayment of any
invoiced amount that is due.
8.5. NONPAYMENT NOTICE. If WWT does not receive the full payment of any
invoice (and has not agreed to accept a different amount), it may give
TCB a Nonpayment Notice. TCB shall pay the amount described in the
Nonpayment Notice by the tenth Business Day after that Nonpayment
Notice is given.
8.6. DISPUTE OF INVOICE. Except as described in the last sentence of this
Section 8.6, TCB may dispute the amount of any invoice for up to 90
days after the date of that invoice; if no Notice of that Dispute is
given within those 90 days, the invoiced amount shall be deemed agreed
to by TCB. The Notice of a Dispute of any invoice shall describe the
basis for that Dispute and specify the Service and the TCB Business
Unit to which that Dispute relates. A Dispute of any invoice (except as
described in the last sentence of this Section 8.6) shall be resolved
by the Dispute Resolution Procedure. If it is determined by resolution
of that Dispute that TCB has paid any excess amount in response to the
invoice, that amount shall be credited (without interest) to the next
invoice or invoices payable by TCB after the date of resolution, or to
the extent full credit cannot be given to invoiced amounts payable
within 30 days after the date of resolution, paid (without interest) by
WWT by check or wire transfer of immediately available funds to an
account or accounts designated by TCB. Under this Section 8.6, TCB may
dispute only the invoiced amount and the particular calculation
thereof, and not the previously established basis for the established
Price for any invoiced Service. Any Dispute regarding the application
to any Service (in whole or in part) of any invoiced sales, use, or
similar taxes is subject to Section 17.2(b) instead of this Section
8.6.
ARTICLE 9. RECORDS
9.1. RECORD KEEPING. WWT shall create and maintain accurate records
regarding the Services rendered and the amounts charged and paid or
received under this Agreement. WWT's records shall include information
regarding the determination of amounts charged or invoiced to TCB for
Use-based Services and information regarding the determination of the
cost or the cost allocation for each Service rendered. WWT's records
regarding:
(a) the Services rendered, and at the Level rendered, as of the
Effective Date shall be of substantially the same kinds as WWT
has created and maintained regarding those Services before the
Effective Date, and
(b) the Services, or the Level of Services, as changed after the
Effective Date in accordance with this Agreement shall be of
the kinds that are reasonable, and consistent with the other
business records created and maintained by WWT, regarding
services like those Services at those Levels.
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WWT shall create and maintain those records with the same degree of
completeness and care as it maintains its other similar business
records. WWT shall maintain those records for the time or times
required by applicable law or regulation, except that WWT shall, upon
request of the TCB, maintain any of those records for a longer time if
TCB pays the additional expenses incurred in complying with that
request.
9.2. EXAMINATION. Each Party shall be entitled to examine, through its
authorized representatives or agents and at its own expense, the
records that the other Party is required to maintain under this
Agreement. This examination right may be exercised only by at least
three Business Days' prior Notice to the other Party, and the
examination may be made only during the other Party's normal business
hours or at any other reasonable time or times to which the other Party
may consent. An examination shall be performed in a manner that does
not unreasonably disrupt the other Party's normal business operations.
This examination right will continue:
(a) for two years after Expiration or the termination of this
Agreement; and
(b) thereafter, as long as necessary to enable a Party to respond
to any Third-Party Claim or to a request or order issued by a
court or another Governmental Authority.
The Party conducting an examination may make and take away copies of
any or all of the other Party's records being examined.
ARTICLE 10. CONFIDENTIAL INFORMATION
10.1. CONFIDENTIAL INFORMATION. Each Party shall keep confidential the
following information which is "Confidential Information" whether
acquired by it under or in connection with this Agreement or obtained
in connection with the relationship of WWT and TCB or its predecessors
regarding services rendered before the Effective Date:
(a) information relating to the other Party's business, financial
condition or performance, or operations that the other Party
treats as confidential or proprietary;
(b) copies of records and other information obtained from a
Party's examination of the other Party's records under Section
9.2;
(c) the terms and performance of, any breach under, or any Dispute
regarding this Agreement;
(d) the Parties' conduct, decisions, documents, and negotiations
as part of, and the status of, any Dispute resolution
proceedings under the Dispute Resolution Procedure;
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(e) any information, business plan, concept, idea, know-how,
process, technique, program, design, formula, algorithm or
work-in-process, any engineering, manufacturing, marketing,
technical, financial, data, or sales information, or any
information regarding suppliers, customers, employees,
investors, or business operations, and any other information
or materials, whether in written, or graphic, or any other
form or that is disclosed orally, or electronically, or
otherwise which is learned or disclosed in the course of
discussions, studies, or other work undertaken between the
parties; and
(g) any other information, whether in a tangible medium or oral
and whether proprietary to the other Party or not, that is
marked or clearly identified by the other Party as
confidential or proprietary.
(f) Without limiting the generality of the foregoing, Confidential
Information shall include all information and materials
disclosed orally or in any other form, regarding WWT's
software products or software product development, including,
but not limited to, the configuration techniques, data
classification techniques, user interface, applications
programming interfaces, data modeling and management
techniques, data structures, and other information of or
relating to WWT's software products or derived from testing or
other use thereof.
Neither Party may use any of the other Party's Confidential Information
other than as required to perform its obligations or exercise its
rights and remedies, including as part of the resolution of any
Dispute, under this Agreement.
10.2. EXCLUDED INFORMATION. A Party has no obligation under this Article 10
regarding any information, including information that would otherwise
by Confidential Information, to the extent that the information:
(a) is or becomes publicly available or available in the industry
other than as a result of any breach of this Agreement or any
other duty of that Party;
(b) is or becomes available to that Party from a source that, to
that Party's knowledge, is lawfully in possession of that
information and is not subject to a duty of confidentiality,
whether to the other Party or another Person, violated by that
disclosure; or
(c) is independently developed by employees of the receiving Party
who did not have access to the disclosing Party's Confidential
Information.
10.3. STANDARD OF CARE. Each Party shall use the same degree of care in
maintaining the confidentiality and restricting the use of the other
Party's Confidential Information as that Party uses with respect to its
own proprietary or confidential information, and in no event less than
reasonable care.
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10.4. PERMITTED DISCLOSURES. A Party may disclose Confidential Information to
its officers, directors, agents, or employees as necessary to give
effect to this Agreement. Each Party shall inform each of these Persons
to whom any Confidential Information is communicated of the obligations
regarding that information under this Article 10 and impose on that
Person the obligation to comply with this Article 10 regarding the
Confidential Information. Each Party shall be responsible for any
breach of that Party's obligations under this Article 10 by its
officers, directors, agents, or employees.
10.5. REQUIRED DISCLOSURES. Each Party may disclose Confidential Information
in response to a request for disclosure by a court or another
Governmental Authority, including a subpoena, court order, or
audit-related request by a taxing authority, if that Party:
(a) promptly notifies the other Party of the terms and the
circumstances of that request;
(b) consults with the other Party, and cooperates with the other
Party's reasonable requests, to resist or narrow that request;
(c) furnishes only information that, according to written advice
(which need not be a legal opinion) of its legal counsel, that
Party is legally compelled to disclose; and
(d) uses its Reasonable Efforts to obtain an order or other
reliable assurance that confidential treatment will be
accorded the information disclosed.
A Party need not comply with these conditions to disclosure, however,
to the extent that the request or order of the Governmental Authority
in effect prohibits that compliance. A Party may also disclose
Confidential Information without complying with these conditions to the
extent that the Party is otherwise legally obligated to do so (for
example, to comply with applicable securities laws), as confirmed by
advice of competent and knowledgeable counsel. Further, a Party may
also disclose Confidential Information, without complying with these
conditions, in connection with a tax audit if the disclosure is to
representatives of a taxing authority, or in connection with a tax
contest if that Party uses its Reasonable Efforts to assure that
confidential treatment will be accorded the information disclosed.
10.6. TITLE TO INFORMATION. The Confidential Information of a Party disclosed
by it to the other Party under this Agreement shall remain the property
of the disclosing Party; nothing in this Agreement grants or conveys to
the other Party any ownership or other proprietary rights in any of
that Confidential Information.
10.7. SURVIVAL; RETURN. The obligations under this Article 10 shall continue
on and after Expiration or the termination of this Agreement. Upon
request of the disclosing Party upon or after Expiration or the
termination of this Agreement, the other Party shall return or, if
requested by the disclosing Party, destroy the Confidential Information
of the
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disclosing Party that it holds. The requested return or destruction
shall include removal or deletion of Confidential Information from all
data bases and magnetic media of the other Party.
ARTICLE 11. PARTIES' RELATIONSHIP
11.1. INDEPENDENT. The Parties are independent; each has sole authority and
control of the manner of, and is responsible for, its performance of
this Agreement. This Agreement does not create or evidence a
partnership or joint venture between the Parties. Neither Party may
create or incur any liability or obligation for or on behalf of the
other Party, except as described in this Agreement. This Agreement does
not restrict WWT from providing or rendering any services, including
services like the Services, to any other Person; nothing in this
Agreement, however, gives WWT the right to provide or render any
services in violation of any other agreement entered into by the
Parties.
11.2. EMPLOYEES. Except as described in Section 14.4(b) or Section 14.4(c)
or, for the purposes of this Agreement:
(a) each Party is solely responsible for its own employees or
agents, including the actions or omissions and the
compensation of those employees and agents, and
(b) neither Party has any authority with respect to any of the
other Party's employees or agents.
11.3. AUTHORITY AND ENFORCEABILITY. Each Party warrants to the other Party
that:
(a) it has the requisite corporate authority to enter into and
perform this Agreement;
(b) its execution, delivery, and performance of this Agreement
have been duly authorized by all requisite corporate action on
its behalf;
(c) this Agreement is enforceable against it; and
(d) it has obtained all consents or approvals of Governmental
Authorities and other Persons that are conditions to its
entering this Agreement.
11.4. THIRD-PARTY CONSENTS. Each Party shall be responsible for obtaining and
maintaining any licenses, permits, consents, or approvals of
Governmental Authorities and other Persons necessary or appropriate for
it to perform its obligations under this Agreement.
11.5. THIRD-PARTY-RELATED ARRANGEMENTS. The Parties also have certain
arrangements and agreements relating to certain of the Services
provided by an Effective Date Service Subcontract or provided directly
by WWT but involving an agreement with a third party. The Parties
currently expect that the matters or issues addressed by those
arrangements or agreements will need to continue to be addressed
whether in the same or in a different manner upon Expiration or the
termination of this Agreement. Hence, before and upon
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any of those events, each Party shall use its Reasonable Efforts to
change, renegotiate, replace, sever, or assign, as the Parties mutually
agree, those arrangements or agreements as necessary to so address
those matters or issues and to equitably allocate to the respective
Parties in accordance with their respective assets and businesses the
benefits and the obligations of those arrangements or agreements upon
and after the occurrence of any of those events.
11.6. FURTHER ASSURANCES. Each Party shall take such actions, upon request of
the other Party and in addition to the actions specified in this
Agreement, as may be necessary or reasonably appropriate to implement
or give effect to this Agreement.
ARTICLE 12. PARTIES' REPRESENTATIVES
12.1. REPRESENTATIVES' AUTHORITY. Each Party has authorized its
Representative to conduct discussions and negotiations, make and
communicate decisions, frame and pose questions or issues, and resolve
Disputes on behalf of that Party relating to this Agreement. Though one
Party's employees or agents other than its Representative may also take
actions of the kinds described in the preceding sentence with the other
Party's employees or agents other than its Representative, matters that
require more formal discussions or negotiations between Parties shall
be addressed through and by the Representatives. Each Party and its
Representative are entitled to rely on the actions and decisions of the
other Party's Representative relating to this Agreement.
12.2. DESIGNATION. WWT designates its Vice President and General Manager as
WWT's Representative, and TCB designates its Chief Technology Officer
as TCB's Representative, upon and after the Effective Date until
changed by the designating Party. A Party may change its Representative
by Notice to the other Party. A Party may rely on and deal with the
Person who is designated as the other Party's Representative until any
Notice of change is given by the other Party.
ARTICLE 13. TERMINATION
13.1. TERMINATION EVENTS. This Agreement may be terminated, without liability
to the Party terminating:
(a) by either Party upon 90 days' Notice to the other, at any time
upon or after the Parties cease to be Affiliates;
(b) by a Party, immediately upon Notice to the other Party, if:
(i) that other Party makes a general assignment of all or
substantially all of its assets for the benefit of
its creditors;
(ii) that other Party applies for, consents to, or
acquiesces in the appointment of a receiver, trustee,
custodian, or liquidator for its business or all or
substantially all of its assets;
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(iii) that other Party files, or consents to or acquiesces
in, a petition seeking relief or reorganization under
any bankruptcy or insolvency laws; or
(iv) a petition seeking relief or reorganization under any
bankruptcy or insolvency laws is filed against that
other Party and is not dismissed within 90 days after
it was filed;
(c) by a Party, immediately upon Notice to the other Party, if
that other Party's material breach of this Agreement continues
uncured or uncorrected for 30 days after both the nature of
that breach and the necessary cure or correction has been
agreed upon by the Parties or otherwise determined by the
Dispute Resolution Procedure; but if:
(i) the Parties agree or it is determined by the Dispute
Resolution Procedure that the material breach is not
capable of being cured or corrected, the termination
shall be effective immediately upon Notice, without
any cure period; or
(ii) the breaching Party (A) reasonably requires longer
than 30 days to cure or correct, such as when the
applicable Service Subcontract permits the
Subcontractor longer than 30 days to cure or correct,
and (B) Notifies the non-breaching Party of the
circumstances, then the cure period shall be extended
for the reasonable time so required, so long as
during that time the breaching Party diligently acts
to effect that cure or correction. Unless otherwise
agreed in writing by the Parties, no cure period
extension shall exceed 90 days.
A non-breaching Party's exercise of the remedy described in
this Section 13.1(c) shall be conditioned upon its giving a
Breach Notice to the other Party.
(d) by WWT, immediately upon Notice to TCB, if TCB has not paid
the amount described in a Nonpayment Notice by the tenth
Business Day after that Nonpayment Notice was given.
A Party may not terminate this Agreement if the event or circumstance
described above in this Section 13.1, upon which that Party would rely
in so terminating, was caused by that Party's breach of this Agreement.
13.2. NONEXCLUSIVE. The termination rights under Section 13.1(c) and 13.1(d)
are not exclusive of any other right or remedy of a non-breaching Party
granted in this Agreement.
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13.3. CONSEQUENCES OF TERMINATION. Upon termination of this Agreement:
(a) under Section 13.1(a) or by TCB under Section 13.1(c):
(i) During the Transition Period WWT shall continue to
render, and TCB shall pay for, each Service
reasonably requested by TCB until terminated by
either Party in accordance with Sections 13.3(a)(ii)
and 13.3(a)(iii). Except as stated in Section
13.3(a)(ii), the terms of this Agreement shall
continue to apply during the Transition Period as
though no termination of this Agreement had occurred.
(ii) The Level of each Service provided, and the Price for
each Service, during the Transition Period shall be
the same as in effect immediately preceding the
Termination Date. During the Transition Period, any
Service may be terminated by (A) TCB, for any reason,
by 60 days' Notice to WWT, or (B) WWT, if TCB has not
paid the amount described in a Nonpayment Notice by
the tenth Business Day after the Nonpayment Notice
was given. Any Service that is the subject of a
Notice of termination shall continue to be provided
by WWT until the effective date of that termination,
and TCB shall pay for that Service rendered through
that date. Neither Party may unilaterally rescind a
Notice of termination.
(iii) If either Party reasonably determines that the
termination of any Service during the Transition
Period would make it functionally impossible to
continue any other Service during the Transition
Period, that Party shall promptly Notify the other
Party of that determination; any Service that so
becomes functionally impossible to render shall be
deemed terminated effective upon the date of
termination of the Service that caused that
impossibility. Neither Party may unilaterally
reinstate any Service that has been terminated as of
the Termination Date or during the Transition Period.
(b) under Section 13.1(b), then during the Transition Period, WWT
shall comply with TCB's reasonable requests for assistance in
TCB's engaging or training another Person or Persons to
provide, and for records and other information relating to,
each Service in effect immediately preceding the Termination
Date. If WWT terminates this Agreement, TCB shall reimburse
and pay WWT's Transition Expenses in accordance with invoices
submitted to TCB by WWT. Article 1, Articles 8 through 12 and
Articles 14 through 25 shall apply in this situation as though
this Agreement had not been terminated. When TCB is obligated
to reimburse and pay WWT's Transition Expenses, WWT may cease
providing transition assistance, immediately upon Notice to
TCB, if TCB has not paid the amount described in a Nonpayment
Notice by the tenth Business Day after the Nonpayment Notice
was given. If the records or other information provided by
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WWT are Confidential Information, Article 10 shall also apply
as though this Agreement had not been terminated.
(c) under Section 13.1(d) or by WWT under Section 13.1(c), then
WWT shall have no obligation to provide any continued Services
or transition assistance as described above in this Section
13.3, unless TCB first pays all past due amounts, cures any
material breach, pays in advance for any further Services and
pays in advance 50% of the estimated Transition Expenses.
13.4. SURVIVAL OF RIGHTS AND OBLIGATIONS. No rights or obligations of either
Party that expressly or by implication are to remain in effect in order
to give effect to this Agreement shall be impaired by Expiration or the
termination of this Agreement, and those rights and obligations shall
remain in effect.
ARTICLE 14. LIABILITY AND REMEDIES
14.1. WARRANTIES. Each Party's warranties in this Agreement are made solely
to and for the benefit of the other Party and, to the extent described
in this Agreement, TCB. No Person other than a Party may make a claim
based on the other Party's warranties under this Agreement; any claim
by TCB shall be made by TCB.
14.2. NONCONFORMING SERVICES. TCB shall promptly Notify WWT of any Deficiency
in any Service or Task, whether rendered by WWT or a subcontractor. To
the extent WWT agrees, or it is otherwise determined by the Dispute
Resolution procedure, that a Service or Task was or is a Nonconforming
Service, WWT shall use its Reasonable Efforts promptly to cure or
correct, or cause its Subcontractor to cure or correct, the Deficiency
to the extent it may then be cured or corrected.
(a) If the Deficiency was related to a Consulting Service, then
WWT shall be responsible or liable for TCB's resulting Damages
as provided in the separate proposal or contract pursuant to
which WWT was to provide such Consulting Service to TCB. The
Parties agree that such proposals or contracts may limit WWT's
liability to TCB to the total amount paid by TCB to WWT under
such proposal or contract.
(b) If the Deficiency was related to a Back Office Service and
was, or was the result of, WWT's or a Subcontractor's
negligence or TCB's negligence, WWT shall not be responsible
or liable for any resulting Damages of TCB.
(c) If the Deficiency was related to a Back Office Service and
was, or was the result of, WWT's or a Subcontractor's gross
negligence (including recklessness) or willful misconduct, WWT
shall be responsible or liable for TCB's resulting Damages in
an amount up to:
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(i) if WWT's liability is determined (by the Parties'
agreement or the Dispute Resolution Procedure) after
the calendar year in which the Deficiency occurred,
the aggregate amount received by WWT for the
Nonconforming Service for the calendar year in which
the Deficiency occurred;
(ii) if WWT's liability is determined during the calendar
year in which the Deficiency occurred and the
Nonconforming Service is a Fixed-price Service, the
annual Price for the Nonconforming Service for that
calendar year; or
(iii) if WWT's liability is determined during the calendar
year in which the Deficiency occurred and the
Nonconforming Service is a Use-based Service, the
greater of (A) the estimated annual amount for that
Service for that calendar year and (B) the aggregate
amount received by WWT to the date the liability is
determined, annualized for that calendar year.
The annual limit on WWT's liability described above in this Section
14.2(c) is not cumulative from year to year. If there is more than one
Deficiency in a single Service for which WWT is responsible or liable
for Damages and WWT's liability for those Deficiencies is determined in
the same calendar year, WWT's responsibility or liability for Damages
resulting from all of those Deficiencies shall be subject to the
applicable annual limit on liability described above in this Section
14.2(c).
14.3. ACTUAL DAMAGES. Neither Party shall be liable under or relating in any
manner to this Agreement for any losses or damages other than Damages,
even if a Party has been advised of the possibility of losses or
damages of that kind and regardless of the form of the Proceedings or
the theory of liability, whether based on contract, warranty, tort
(including negligence and strict liability), infringement, or
misappropriation.
14.4. INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall
apply to any breach of, and certain other Damages relating to, this
Agreement, other than a Deficiency for which WWT has no liability for
Damages under Section 14.2(b) or a nonpayment by TCB of any amount
relating to an invoice:
(a) Subject to the limits on liability described in Section
14.2(c), if that Section is applicable, each Party shall
indemnify the other Party against all Damages of the
Indemnified Party, or any of its Indemnified Agents, resulting
from or relating to:
(i) any breach of this Agreement, including breach of any
warranty in this Agreement, by the Indemnifying
Party;
(ii) any Proceedings relating to a breach of this
Agreement by the Indemnifying Party; and
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(iii) the actions or omissions of the Indemnifying Party's
employees or agents under or in connection with this
Agreement.
(b) TCB shall also indemnify WWT against all Damages of WWT or any
of its Indemnified Agents, including any Subcontract
Termination Penalty, under or relating to any Service
Subcontract, other than as described in Section 3.5(b),
resulting from:
(i) any violation by TCB of any obligation imposed on it
under that Service Subcontract; or
(ii) the actions or omissions of TCB's employees or agents
under or in connection with that Service Subcontract.
(c) TCB shall also indemnify WWT against all Damages of WWT or any
of its Indemnified Agents resulting from or relating to any
sales, use, or similar taxes (however described) applicable to
any of the Services, in whole or in part, that are assessed or
levied against or paid by WWT.
(d) The indemnification obligations in Sections 14.4(a), 14.4(b)
and 14.4(c) shall be extinguished to the extent that the
Damages of the other Party, or any of its Indemnified Agents
for whom or which the other Party is seeking indemnification,
were caused by the gross negligence (including recklessness)
or willful misconduct of the Person for whom or which
indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON
OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS
SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM
RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS
AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party
Claim, the Indemnified Party shall give an Indemnification
Claim Notice promptly after the event constituting the basis
for the Indemnification Claim; its failure to do so, however,
shall relieve the Indemnifying Party of its indemnification
obligations only to the extent the Indemnifying Party is
actually prejudiced by that failure. If the Indemnified Party
gives an Indemnification Claim Notice regarding an
Indemnification Claim not based on a Third-Party Claim, the
Indemnifying Party shall Notify the Indemnified Party within
the Indemnification Response Period whether the Indemnifying
Party disputes all or any portion of the Indemnification
Claim. If the Indemnifying Party does not give that dispute
Notice or agrees to accept liability for all or a portion of
the Indemnification Claim, the Indemnification Claim, or the
agreed portion of that Indemnification Claim, shall be the
Indemnifying Party's liability. Otherwise, the Indemnification
Claim shall be deemed a Dispute to be resolved by the Dispute
Resolution Procedure.
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(f) If an Indemnification Claim is based on a Third-party Claim:
(i) The Indemnified Party shall give an Indemnification
Claim Notice promptly after it receives the
Third-Party Claim.
(ii) The Indemnifying Party shall be entitled to defend
the Third-Party Claim, with its chosen counsel and at
its own expense, if (A) the Third-Party Claim seeks
only monetary relief against the Indemnified Party,
and (B) the Indemnifying Party elects to assume, and
diligently conducts, that defense. The Indemnifying
Party's election to defend shall be given by Notice
to the Indemnified Party within the Indemnification
Response Period. If the Indemnifying Party conducts
the defense, the Indemnified Party may participate in
that defense with its own counsel and at its own
expense.
(iii) If the Indemnifying Party does not elect to defend
the Third-Party Claim by Notice within the
Indemnification Response Period, or if the
Indemnifying Party does not diligently conduct the
defense, the Indemnified Party shall be entitled,
upon further Notice to the Indemnifying Party, to
defend the Third-Party Claim on behalf of, and for
the account and risk of, the Indemnifying Party (if
it is determined that the Indemnifying Party has an
indemnification obligation regarding that
Indemnification Claim). In this circumstance, the
Indemnifying Party may participate in the defense
with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it
inappropriate for the same counsel to represent the
Indemnifying Party and the Indemnified Party in
defending the Third-Party Claim, the Indemnifying
Party shall pay for separate counsel for the
Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim
may compromise, settle, or resolve that Third-Party
Claim without the Indemnified Party's consent if the
compromise, settlement, or resolution involves only
the payment of money by the Indemnifying Party
(whether on its own behalf or behalf of the
Indemnified Party) and the third-party claimant
provides the Indemnified Party a release from all
liability regarding the Third-Party Claim. Otherwise,
the Indemnifying Party may not compromise, settle, or
resolve the Third-Party Claim without the Indemnified
Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate with all reasonable requests of the
other in defending any Third-Party Claim.
14.5. TIME FOR CLAIMS. TCB may make a claim against WWT for the cure or
correction of any Deficiency only within two years after the Deficiency
occurred; any Deficiency shall
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be deemed to have occurred when the particular Nonconforming Service
was rendered. A Party may make an Indemnification Claim:
(a) not based on a Third-Party Claim, only within two years after
the breach o other event constituting the basis for that
Indemnification Claim occurred, even if not discovered until
after that second anniversary, or
(b) based on a Third-Party Claim, at any time.
14.6. OFFSET. A Party entitled to any payment due from the other Party under
this Agreement may offset all or any portion of the amount of that
payment against any payment that is due from it to the other Party
under this Agreement.
14.7. EQUITABLE RELIEF. To the extent that monetary relief is not a
sufficient remedy for any breach of this Agreement, or upon any breach
or impending breach of Article 10, the non-breaching Party shall be
entitled to injunctive relief as a remedy for that breach or impending
breach by the other Party, in addition to any other remedies granted to
the non-breaching Party in this Agreement. That injunctive relief shall
be sought through arbitration in accordance with the Dispute Resolution
Procedure, except as permitted by Section B.4(b) of the Dispute
Resolution Appendix.
14.8. EXCLUSIVE REMEDIES. Except for the termination right stated in Article
13 and the relief described in Sections 15.4 and 17.2(b) and in the
Dispute Resolution Procedure, the remedies described in this Article 14
are the exclusive rights and remedies of a Party regarding any breach
of this Agreement or any other matter that may be the subject of an
Indemnification Claim.
14.9. WAIVER OF REMEDIES. No forbearance, delay, or indulgence by either
Party in enforcing this Agreement, within the applicable time limits
stated in this Agreement, shall prejudice the rights or remedies of
that Party. No waiver of a Party's rights or remedies regarding a
particular breach of this Agreement constitutes a waiver of those
rights or remedies, or any other rights or remedies, regarding any
other or any subsequent breach of this Agreement.
14.10. CUMULATIVE REMEDIES. A Party's election to pursue a right or remedy
granted in this Agreement upon the other Party's breach of this
Agreement shall not preclude the non-breaching Party from pursuing
other rights or remedies granted to that Party in this Agreement that
are applicable to that breach under this Agreement.
14.11. SURVIVAL. The rights, remedies, and obligations under this Article 14
shall continue on and after Expiration or the termination of this
Agreement.
ARTICLE 15. FORCE MAJEURE
15.1. NO BREACH OR LIABILITY. No delay or failure of a Party to perform any
of its obligations, other than payment obligations, under this
Agreement due to causes beyond its
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reasonable control shall constitute a breach of this Agreement or
render that Party liable for that delay or failure. Causes beyond a
Party's reasonable control include:
(a) events or circumstances that the Party, using its Reasonable
Efforts, is unable to prevent or overcome;
(b) as to WWT, causes also beyond the reasonable control of the
Person to whom or which WWT has Subcontracted the affected
Service or Task in accordance with this Agreement; and
(c) labor disputes, strikes, or other similar disturbances; acts
of God; utilities or communications failures; acts of the
public enemy; and riots, insurrections, sabotage, or
vandalism.
15.2. NOTICE OF EXCUSABLE DELAY OR FAILURE. If a Party anticipates any
excusable delay or failure under Section 15.1, it shall promptly Notify
the other Party of the anticipated delay or failure, the anticipated
effect of that delay or failure, and any actions that are being or are
to be taken to alleviate or overcome the cause of the delay or failure.
15.3. EFFORTS TO OVERCOME. If a Party is claiming an excusable delay or
failure under Section 15.1, it shall use its Reasonable Efforts to
alleviate or overcome the cause of the delay or failure as soon as
practicable.
15.4. EXTENDED DELAY OR FAILURE. If an excusable delay or failure continues
for more than 10 consecutive days, the Party entitled to the benefit of
the affected obligation may perform itself or obtain from any other
Person the obligation to which that Party is entitled (and that Party
shall Notify the other Party of this election). In the event WWT is the
party unable to perform hereunder, TCB's Notification to WWT may, if
clearly provided therein, serve as termination notice for the Service
which WWT has been unable to perform. Such termination shall relieve
WWT from all further duties to perform such terminated Service and
shall relieve TCB from the obligation to pay for any such Services
performed after such Notice of termination.
ARTICLE 16. DISPUTE RESOLUTION MATTERS
16.1. GENERAL PROCEDURES. Except as otherwise stated in this Agreement, the
Parties shall resolve all Disputes in accordance with the Dispute
Resolution Procedure. Nevertheless, if any Person other than the
Parties:
(a) has initiated a lawsuit or other Proceedings against or
involving either or both of the Parties in which a Dispute
will be resolved, or
(b) is a necessary participant in any Proceedings to resolve a
Dispute and cannot be joined by either or both of the Parties
in an arbitration of that Dispute under Section B.3 of the
Dispute Resolution Appendix,
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so that (in either case) the Dispute Resolution Procedure is or will be
ineffective, then the Parties need not use or follow the Dispute
Resolution Procedure to resolve that Dispute, though the submission to
jurisdiction in Section B.5 of the Dispute Resolution Appendix shall
apply if necessary.
16.2. CONTINUED PERFORMANCE. The Parties shall continue performing their
respective obligations under this Agreement while a Dispute is being
resolved.
16.3. PARTIES' AGREEMENT. Nothing in this Article 16 or the Dispute
Resolution Procedure prevents the Parties from resolving any Dispute by
mutual agreement at any time.
ARTICLE 17. EXPENSES AND TAXES
17.1. EXPENSES. Each Party shall be solely responsible for its costs and
expenses incurred in performing its obligations and exercising its
rights and remedies under this Agreement, except as otherwise provided
in this Agreement.
17.2. TAXES. The Parties shall be responsible for tax payments or liabilities
relating to this Agreement as follows:
(a) Each Party shall be responsible for its income and franchise
taxes and for all other taxes (however described) based on its
own income or earnings.
(b) TCB shall be responsible for all sales, use, and similar taxes
(however described) applicable to the Services, in whole or in
part. This obligation includes TCB's paying the sales taxes
identified in WWT's invoices submitted to TCB for the
Services.
(i) If TCB claims an exemption or exclusion from taxes of
this kind, it shall deliver to WWT a certificate or
letter stating TCB's good-faith belief that a Service
is not, in whole or in part, subject to those taxes.
Whether or nor TCB delivers that certificate or
letter, however, it shall indemnify WWT, in
accordance with Section 14.4(c)(iv), against any
taxes of this kind assessed or levied against, or
paid by, WWT and any other related Damages of WWT.
(ii) If WWT receives an assessment from a taxing authority
covering taxes for which TCB is responsible under
this Section 17.2(b), WWT shall Notify TCB of the
assessment and, at TCB's request, timely contest the
assessment. If payment to the taxing authority is
required by law as a condition to protest, TCB shall
timely furnish WWT the required amount for that
payment.
(iii) If TCB believes it has overpaid taxes to WWT for any
of the Services (in whole or in part), TCB may
require WWT to file a claim for a refund at
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TCB's expense. If permitted by law, WWT may assign
any right to a refund directly to TCB instead of
filing a refund claim. Any refund of taxes (including
any interest) received by WWT under this Section
17.2(b)(iii) shall be promptly forwarded to TCB.
(iv) Before WWT is required to pursue any action requested
by TCB under this Section 17.2(b), WWT may at any
time require TCB to deliver a letter of advice from
outside counsel (selected by TCB) stating that TCB's
tax position is reasonable.
(v) Except as stated in the next sentence, any Dispute
between the Parties regarding the application of any
taxes of this kind to any Service (in whole or in
part) shall be resolved by the Dispute Resolution
Procedure. Any Dispute as to the amount of tax (if
any) owed to a taxing authority, including a Dispute
between a Party and the taxing authority, need not be
resolved by the Dispute Resolution Procedure, but may
be resolved by any appropriate administrative or
legal procedure available to a Party or the Parties
under this Agreement apart from the Dispute
Resolution Procedure.
(c) Each Party shall be responsible for all real property,
personal property, and other taxes (however described) based
on its owned or leased property, whether real or personal.
(d) Each Party shall be responsible for all employment-related
taxes (however described) regarding its own employees.
Each Party shall cooperate with any reasonable request of the other
Party to restructure any Service, in whole or in part, or to take any
other reasonable action to avoid or minimize any duplicate taxes that
might be imposed; the requesting Party shall bear in the expenses of
the other Party's compliance.
ARTICLE 18. COMMUNICATIONS
18.1. FORM. Each notice (including a Nonpayment Notice, an Indemnification
Claim Notice, and a Breach Notice), request, response, demand, claim,
and other communication required or permitted under this Agreement
shall be in writing and shall be transmitted, delivered, or sent by:
(a) personal delivery,
(b) courier or messenger service, whether overnight or same-day,
(c) prepaid telecopy or facsimile, or
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(d) certified United States mail, with postage prepaid and return
receipt requested,
in any case addressed to the other Party at the address or number for
that Party set forth in Section 18.2, or at such other address or
number as the recipient has designated by Notice to the other Party in
accordance with this Article 18.
18.2. ADDRESSES. The Parties shall transmit, deliver, or send communications
as follows.
(a) If to WWT: World Wide Technology, Inc.
127 Weldon Parkway
St. Louis, Missouri 63043
Attention: Joe Koenig
(b If to TCB: telcobuy.com LLC
127 Weldon Parkway
St. Louis, Missouri 63043
Attention: Bob Olwig, Tom Strunk and Jim Kavanaugh
18.3. EFFECTIVENESS. Each communication transmitted, delivered, or sent: in
person, by courier or messenger service, or by certified United States
mail, postage prepaid and return receipt requested, shall be deemed
given, received, and effective on the date delivered to or refused by
the intended recipient (with the return receipt or the equivalent
record of the courier or messenger being deemed conclusive evidence of
delivery or refusal)
ARTICLE 19. ASSIGNMENT
Neither Party may assign any of its rights or delegate any of its
duties or obligations under this Agreement without the other Party's Consent;
this prohibition of assignment and delegation shall include any assignment and
delegation by operation of law (such as merger or consolidation). Any attempted
assignment or delegation without the other Party's Consent shall be void and
without effect. The two preceding sentences do not, however, preclude WWT from
Subcontracting.
ARTICLE 20. AMENDMENT AND WAIVER
This Agreement may be amended or modified, and any provision of this
Agreement may be discharged or waived, only by a document signed by the Party
against which the amendment, modification, discharge, or waiver is sought to be
enforced.
ARTICLE 21. INTEGRATION
This Agreement constitutes the Parties' entire agreement on this
subject; it replaces and supersedes any prior agreement or understanding of the
Parties, whether written or oral, on this subject not expressed or referred to
in this Agreement.
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ARTICLE 22. SEVERABILITY
If any part of this Agreement is for any reason found to be
unenforceable, all other parts of this Agreement nevertheless remain
enforceable.
ARTICLE 23. SUCCESSORS
This Agreement binds and inures to the benefit of the Parties and their
respective legal representatives, permitted successors, and permitted assigns.
ARTICLE 24. GOVERNING LAW
This Agreement shall be interpreted or construed under Missouri law.
Likewise, the validity and performance of this Agreement shall be enforced, and
all issues relating to this Agreement shall be resolved, under Missouri law.
Each Party consents to the exclusive personal jurisdiction and venue of the
courts, state and federal, located in St. Louis County, Missouri.
ARTICLE 25. COUNTERPARTS
This Agreement may be signed in any number of counterparts, with the
same effect as if all signatories had signed the same document. All counterparts
shall be construed together to constitute one, and the same, document.
IN WITNESS WHEREOF, the Parties hereto have executed this General
Services Agreement effective as of the date first above written.
WORLD WIDE TECHNOLOGY, INC.
By /s/ David L. Steward
------------------------------
Name: David L. Steward
---------------------------
Title: Chief Executive Officer
--------------------------
TELCOBUY.COM LLC
By /s/ James P. Kavanaugh
------------------------------
Name: James P. Kavanaugh
---------------------------
Title: Chief Executive Officer
--------------------------
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DEFINITIONAL APPENDIX
TO GENERAL SERVICES AGREEMENT
A. DEFINED TERMS. In the Agreement, the following terms have the corresponding
meanings:
"AFFILIATE": A Person that directly or indirectly through one or more
intermediaries' Controls, is Controlled by, or is under common Control with
another Person. For purposes of section 13.1(a), the parties will no longer be
Affiliates when WWT's ownership interest in TCB falls below 30% of the total
issued and outstanding equity of TCB.
"AGREEMENT": The General Services Agreement between WWT and TCB (including the
Definitional Appendix, the Dispute Resolution Appendix, and the Schedules), as
may be amended or supplemented from time to time in accordance with its terms.
"ARBITRATION RULES": The Rules for Commercial Arbitration of the American
Arbitration Association in effect at the time of an arbitration in accordance
with the Dispute Resolution Procedure.
"BACK OFFICE SERVICES": The Services described on Schedule 1 to this Agreement.
"BREACH NOTICE": A Party's Notice to the other Party alleging a breach of the
Agreement (other than TCB's nonpayment of any amount related to an invoice) by
the other Party, which describes the alleged breach, to the extent known by the
notifying Party, and any particular cure or correction requested by the
notifying Party.
"BUSINESS DAY": Any Monday through Friday, excluding the holidays observed by
WWT.
"CONFIDENTIAL INFORMATION": Information subject to a duty of confidence and a
restriction on use imposed on one or both Parties under Article 10.
"CONSENT": The prior written consent of a Party (in any capacity) in its sole
discretion.
"CONSULTING SERVICES": The Services described on Schedule 2 to this Agreement.
"CONTROL": The right to exercise, directly or indirectly, more than 50% of the
voting power attributable to the equity interests in an entity. ("CONTROLLING"
and "CONTROLLED" have correlative meanings.)
"DAMAGES": Losses, claims, obligations, demands, assessments, fines and
penalties (whether civil or criminal), liabilities, expenses and costs
(including reasonable fees and disbursements of legal counsel and accountants),
bodily and other personal injuries, damage to tangible property, and other
damages, of any kind or nature, actually suffered or incurred by a Person.
"Damages":
1. consists only of actual damages;
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2. excludes any lost profits, lost income, or lost savings and any
punitive, exemplary, consequential, indirect, special, or
incidental damages (however described), even if the possibility of
those losses or damages was known; and
3. includes (except as may be reduced in accordance with the next
sentence) all fines, penalties, and interest paid or payable to
any Governmental Authority.
If TCB has Damages, for which WWT is liable, consisting of fines, penalties, and
interest paid or payable to a Governmental Authority corresponding to any tax
not timely paid, then those "Damages" shall be reduced by an amount equal to
interest, at the annual rate of 5%, accrued on that tax from the due date until
that tax is paid; for the avoidance of doubt, in this situation "Damages" shall
not include any tax for which TCB would otherwise be liable to the Governmental
Authority. Also for the avoidance of doubt, the "Damages" of a Person shall
include any lost profits, lost income, or lost savings and any punitive,
exemplary, consequential, indirect, special, or incidental damages (however
described) awarded against that Person in favor or another Person asserting a
Third- Party Claim against that Person.
"DEFICIENCY": WWT's failure in rendering a Service or Task to satisfy the
applicable standard of care stated in the Agreement or to render it at the
applicable Level established under the Agreement. ("DEFICIENT" has the
correlative meaning).
"DEFINITIONAL APPENDIX": This Definitional Appendix to GENERAL SERVICES
AGREEMENT, containing definitions and interpretive matters for, as an integral
part of, the Agreement.
"DISPUTE": Any dispute, disagreement, claim, or controversy arising in
connection with or relating to the Agreement, or the validity, interpretation,
performance, breach, or termination of the Agreement, including any claim of
breach of representation or warranty or of nonperformance and any claim
regarding bodily or other personal injury damage to tangible property.
"DISPUTE RESOLUTION APPENDIX": The Dispute Resolution Appendix to General
Services Agreement, containing the Dispute Resolution Procedure for, as an
integral party of, the Agreement.
"DISPUTE RESOLUTION PROCEDURE": The procedure or process by which a Dispute
shall be resolved in the Dispute Resolution Appendix.
"EFFECTIVE DATE": October 1, 1999, the date on which the Agreement becomes
effective.
"EFFECTIVE DATE SERVICE SUBCONTRACT": A Service Subcontract in effect on the
Effective Date.
"EXPIRATION": The expiration of the term of the Agreement as stated in, and as
may be renewed under, Article 2, without regard to any period of transition
assistance. For the avoidance of doubt, "Expiration" does not include a
termination of the Agreement under Section 13.1. ("EXPIRE" and "EXPIRED" have
correlative meanings.)
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"FIXED-PRICE SERVICE": A Service the Price for which is a fixed or nonvariable
amount, other than a fixed rate.
"GOVERNMENTAL AUTHORITY": Any federal, state, local, or foreign government or
governmental, quasi-governmental, administrative, or regulatory authority,
agency, body, or entity, including any court of other tribunal.
"INDEMNIFICATION CLAIM": A claim or demand of a Party, on its behalf or on
behalf of one or more of its Indemnified Agents, for Indemnification under
Section 14.4.
"INDEMNIFICATION CLAIM NOTICE": A Notice from the Indemnified Party describing
an Indemnification Claim and the amount or the estimated amount of that
Indemnification Claim to the extent then feasible (though that estimate shall
not be determinative of the final amount of that Indemnification Claim).
"INDEMNIFICATION RESPONSE PERIOD": The 30 days after an Indemnification Claim
Notice is given during which the Indemnifying Party may investigate and
determine its responsibility or liability for an Indemnification Claim and, if
relating to a Third-Party Claim, Notify the Indemnified Party of the
Indemnifying party's election to defend that Third-Party Claim.
"INDEMNIFIED AGENTS": Collectively, the officers, directors, employees, and
agents of a Party.
"INDEMNIFIED PARTY": A Party entitled to or seeking indemnification, on its own
behalf or on behalf of one or more of its Indemnified Agents, under Section
14.4.
"INDEMNIFYING PARTY": A Party that has or is alleged to have an obligation to
indemnify the other Party in response to an Indemnification Claim.
"LEVEL": The scope, timelines, or quantity of a Service of Task or the location,
intensity, or frequency at or with which a Service or Task is or is to be
rendered.
"NONCONFORMING SERVICE:" A Service or Task that, as agreed by the Parties or
otherwise determined by the Dispute Resolution Procedure, was or is Deficient.
"NONPAYMENT NOTICE": A Notice from WWT to TCB that describes an amount related
to an invoice to TCB that WWT has not received when due, which shall:
1. constitute a demand for payment of the described amount; and
2. state that either termination of the Agreement or cessation of
transition assistance, whichever is applicable, by WWT may result
of the described amount is not paid by the tenth Business Day
after that Notice is given.
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"NOTICE": A written communication complying with Article 18. ("NOTIFY" has the
correlative meaning.)
"PARTIES": Collectively, WWT and TCB. ("PARTY" means either WWT or TCB.)
"PERSON": An individual; a corporation, partnership, limited liability company,
trust, association, or entity of any kind or nature; or a Governmental
Authority.
"PRICE": The amount or rate, in either case whether fixed or variable and
however measured, charged to TCB for a Service, as agreed by the Parties.
"PROCEEDINGS": Any action, suit, claim, investigation, demand, audit, or other
proceedings by or before any Governmental Authority or any arbitration
proceedings.
"REASONABLE CONSENT": The prior written consent of a Party (in any capacity),
which may not be unreasonably withheld or delayed.
"REASONABLE EFFORTS": The efforts of a Party that are commercially reasonable
under the circumstances, which do not require a Party to institute or prosecute
any Proceedings or to pay any Person other than that Party's representatives or
agents, including (only as to WWT) Subcontractors.
"REPRESENTATIVES": Collectively, WWT's Representative and TCB's Representative.
"SCHEDULE": A Schedule to the Agreement that describes a Service, the basis of
the Price for that Service, any Subcontractor performing all or a portion of
that Service, and the location or locations at which that Service is to be
rendered if not at WWT's offices or Subcontracted.
"SERVICE": An individual service, to be rendered by WWT under the Agreement,
that is described as a "Service" in a Schedule. A Service may also be described
in a Schedule by all or a portion of its constituent Tasks.
"SERVICE SUBCONTRACT": An agreement or arrangement, oral or written, under which
a Subcontractor is to render or perform any Service or Task on WWT's behalf or
in WWT's stead.
"SLA": A written agreement or understanding between WWT and TCB describing, or
otherwise stating terms regarding, the Level at which a Service, in whole or in
party, will be rendered. An SLA regarding a Service, in whole or in part, may be
entered into by or directly with one or more of WWT's departments rendering that
Service or that part of the Service. An SLA entered into on or after the
Effective Date:
1. may be a separate document or part of another document,
2. may be a Schedule or part of a Schedule, and
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3. shall be signed by WWT and TCB.
"SUBCONTRACT": WWT's entering into a Service Subcontract. ("SUBCONTRACTED" and
"SUBCONTRACTING" have correlative meanings).
"SUBCONTRACT TERMINATION PENALTY": An obligation described in, as part of the
terms of, a Service Subcontract to pay the Subcontractor a charge, fine,
penalty, or other amount upon the termination or partial termination of that
Service Subcontract, including any return to the Subcontractor of any equipment
or goods held under that Service Subcontract.
"SUBCONTRACTOR": A Person, other than an employee of WWT, who or which enters
into a Service Subcontract with WWT.
"TASK": Any one of the group of processes, procedures, or services that is
described in a Schedule as constituting, or included in, a Service.
"TCB": telcobuy.com LLC, a Delaware limited liability company.
"TCB BUSINESS UNIT": A segment or part of TCB's business that TCB treats, for
purposes of its business and not solely for the Agreement, as a separate unit.
"TCB'S REPRESENTATIVE": The individual agent or representative designated by TCB
to be TCB's formal liaison with or representative to WWT for matters relating to
the Agreement, having the (non-exclusive) authority and responsibility described
in the Agreement.
"TERMINATION DATE": The date on which the Agreement is terminated in accordance
with Section 13.1, without regard to any Transition Period.
"THIRD-PARTY CLAIM": A claim of liability asserted against either Party by a
Person other than the other Party or either Party's Indemnified Agents.
"TRANSITION EXPENSES": The sum of the following, incurred in or resulting from
WWT's compliance with requests for transition assistance for up to 180 days
after Expiration or during the Transition period (as the case may be):
1. all of WWT's reasonable out-of-pocket expenses, and
2. the time or activities of WWT's personnel as follows: (a) if
the activities of those personnel were part of a Use-based
Service before Expiration or the termination of the Agreement,
at the Price most recently paid for that Use-based Service
before Expiration or termination, or (b) if the activities of
those personnel were part of a Fixed-price Service before
Expiration or the termination of the Agreement, an amount
equal to that portion of the Price most recently paid for that
Fixed-price Service before Expiration or termination
corresponding to the
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transition activities' portion of all activities that
constituted that Fixed-price Service, for the time covered by
that Price, before Expiration or termination.
"TRANSITION PERIOD": The maximum 180-day period after the Termination Date or
Expiration Date during which WWT shall, as TCB reasonably requests, render one
or more Services in accordance with Section 13.3(a) or provide transition
assistance in accordance with Sections 2.3 or 13.3(b).
"USE-BASED SERVICE": A Service the Price for which is variable; or a Service the
Price for which is a fixed rate, but the amount due for that Service is
determined by or based upon, at least in part, the extent of the actual use of
WWT's personnel or other assets.
"WWT": World Wide Technology, Inc., a Missouri corporation.
"WWT BUSINESS UNIT": A segment or part of WWT's business that WWT treats, for
purposes of its business and not solely for the Agreement, as a separate unit.
"WWT'S REPRESENTATIVE": The individual agent or representative designated by WWT
to be WWT's formal liaison with or representative to TCB for matters relating to
the Agreement, having the (non-exclusive) authority and responsibility described
in the Agreement.
B. INTERPRETATIVE MATTERS. The Agreement is the result of the Parties'
negotiations, and no provision of the Agreement shall be construed for or
against either Party because of the authorship of that provision. In the
interpretation of the Agreement, except where the context otherwise requires:
1. "including" or "include" does not denote or apply any
limitation;
2. "or" has the inclusive meaning "and/or";
3. "$" refers to United States dollars;
4. the singular includes the plural, and vice versa, and each
gender includes each of the others;
5. captions or headings are only for reference and are not to be
considered in interpreting the Agreement;
6. "Article" and "Section" refer to an Article and Section,
respectively, or the Agreement, unless otherwise stated in the
Agreement; and
7. each reference to a time of day in the Agreement is to local
time in St. Louis, Missouri, and "midnight" begins a day.
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DISPUTE RESOLUTION APPENDIX
TO GENERAL SERVICES AGREEMENT
A. DEFINED TERMS. Various terms used in this Dispute Resolution Appendix, which
begin with a capital letter, are defined in the Definitional Appendix to General
Services Agreement. In addition, the following terms used only in this Dispute
Resolution Appendix have the corresponding meanings:
"COMPLEX DISPUTE LIST": The "Complex Dispute List," or if that list is not then
maintained by the American Arbitration Association, another list of individuals
having similar qualifications maintained by the American Arbitration
Association.
"INITIAL EXECUTIVE REVIEW COMMITTEE": A committee consisting of the Vice
President and General Manager of WWT and the Chief Technology Officer of TCB.
"SECOND EXECUTIVE REVIEW COMMITTEE": A committee consisting of the Chief
Executive Officer of WWT and the Chief Financial Officer of TCB.
"QUALIFICATIONS": Inclusion in the Complex Dispute List of having extensive
knowledge or experience, or both, regarding services similar to the Service or
Services that are the subject of the Dispute.
The interpretative matters set forth in the Definitional Appendix also apply to
this Dispute Resolution Appendix.
B. DISPUTE RESOLUTION PROCEDURE.
1. GENERAL PROCEDURE. Except as otherwise stated in the Agreement, the Parties
shall resolve all Disputes in accordance with this procedure:
(a) Each Party shall instruct its Representative to promptly
negotiate in good faith with the other Party's Representative
to resolve the Dispute.
(b) If the Representatives do not resolve the Dispute within ten
Business Days (or such longer period as the Representatives
may agree) after the date of referral of the Dispute to them,
the Dispute shall be referred (by either or both of the
Representatives) to the Initial Executive Review Committee for
resolution.
(c) If the Initial Executive Review Committee does not resolve the
Dispute within ten Business Days (or such longer period as
that Committee may agree) from the date of referral to it, the
Dispute shall be referred (by that Committee or any of its
members) to the Second Executive Review Committee for
resolution.
(d) If the Second Executive Review Committee does not resolve the
Dispute within ten Business Days (or such longer period as
that Committee may agree) after the
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date of referral to it, either Party may submit the Dispute
for resolution by the Parties' Presidents, who may submit the
Dispute to non-binding mediation in accordance with Section
B.2 of this Dispute Resolution Appendix.
(e) If the Dispute is not resolved by the parties' Presidents (if
submitted to them) and is not submitted to or resolved by
mediation, then either Party may submit the Dispute to binding
arbitration in accordance with Section B.3 of this Dispute
Resolution Appendix.
A referral under any of Sections B.1(a), B.1(b), and B.1(c) of this
Dispute Resolution Appendix shall be made by written notice to the
Persons designated in the applicable Section or Sections. That notice
shall be in a form described in the Agreement or an electronic mail
message and addressed to each Person at his office address or
electronic mail address; each notice shall be given and effective as
described in the Agreement or, in the case of electronic mail, upon
actual receipt. The date of referral is the last date that notice is
given to all of the Persons to whom the Dispute must have been
referred.
2. MEDIATION. The mediation of an unresolved Dispute shall be conducted in this
manner:
(a) Either Party may submit the Dispute to mediation by giving
notice of mediation to the other Party. The Parties shall
attempt to agree upon and appoint a sole mediator who has the
Qualifications promptly after that notice is given.
(b) If the Parties are unable to agree upon a mediator within ten
days after the date the Dispute is submitted to mediation,
either Party may request the St. Louis office of the American
Arbitration Association to appoint a mediator who has the
Qualifications. The mediator so appointed shall be deemed to
have the Qualifications and to be accepted by the Parties.
(c) The mediation shall be conducted in the St. Louis metropolitan
area at a place and a time agreed by the Parties with the
mediator, or if the Parties cannot agree, as designated by the
mediator. The mediation shall be held within 20 days after the
mediator is appointed.
(d) If either Party has substantial need for information from the
other Party in order to prepare for the mediation, the Parties
shall attempt to agree on procedures for the formal exchange
of information; if the Parties cannot agree, the mediator's
determination shall be effective.
(e) Each Party shall be represented in the mediation by at least
its Representative or another natural Person with authority to
settle the Dispute on behalf of that Party and, if desired by
that Party, by counsel for that Party. The parties'
representatives in the mediation shall continue with the
mediation as long as the mediator requests.
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(f) Unless otherwise agreed by the parties, each Party shall pay
one-half of the mediator's fees and expenses and shall bear
all of its own expenses in connection with the mediation.
Neither Party may employ or use the mediator as a witness,
consultant, expert, or counsel regarding the Dispute or any
related matters.
3. ARBITRATION. The arbitration of an unresolved Dispute shall be conducted in
this manner:
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The
Parties shall attempt to agree upon and appoint a panel of
three arbitrators promptly after that demand is filed. Each of
those arbitrators must have the Qualifications, and at least
one of those arbitrators must be included in the Complex
Dispute List (unless no list of that kind is then maintained).
(b) If the parties are unable to agree upon any or all of the
arbitrators within ten days after the demand for arbitration
was filed (and do not agree to an extension of that ten-day
period), either Party may request the St. Louis office of the
American Arbitration Association to appoint the arbitrator or
arbitrators, who have the Qualifications (and at least one of
whom must be included in the Complex Dispute List, unless no
list of that kind is then maintained), necessary to complete
the panel in accordance with the Arbitration Rules. Each
arbitrator so appointed shall be deemed to have the
Qualifications and to be accepted by the Parties as part of
the panel.
(c) The arbitration shall be conducted in the St. Louis
metropolitan area at a place and a time agreed by the Parties
with the panel, or if the Parties cannot agree, as designated
by the panel. The panel may, however, call and conduct
hearings and meetings at such other places as the Parties may
agree or as the panel may, on the motion of one Party,
determine to be necessary to obtain significant testimony or
evidence.
(d) The Parties shall attempt to agree upon the scope and nature
of any discovery for the arbitration. If the Parties do not
agree, the panel may authorize any and all forms of discovery,
including depositions, interrogatories, and document
production, upon a showing of particularized need that the
requested discovery is likely to lead to material evidence
needed to resolve the Dispute and is not excessive in scope,
timing, or cost.
(e) The arbitration shall be subject to the Federal Arbitration
Act and conducted in accordance with the Arbitration Rules to
the extent they do not conflict with this Section B.3 of this
Dispute Resolution Appendix. The Parties and the panel may,
however, agree to vary the provisions of this Section B.3 of
this Dispute Resolution Appendix or the matters otherwise
governed by the Arbitration Rules.
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(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or
continuance of the Agreement;
(ii) award remedies or relief either expressly prohibited
by the Agreement or under circumstances not permitted
by the Agreement; or
(iii) grant provisional or temporary injunctive relief
before rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to
arbitration at one time shall be consolidated in a single
arbitration proceeding.
(h) A Party or other Person involved in an arbitration under this
Section B.3 may join in that arbitration any Person other than
a Party if:
(i) the Person to be joined agrees to resolve the
particular dispute or controversy in accordance with
this Section B.3 and the other provisions of this
Dispute Resolution Appendix applicable to
arbitration; and
(ii) the panel determines, upon application of the Person
seeking joinder, that the joinder of that other
person will promote the efficiency, expedition, and
consistency of the result of the arbitration and will
not unfairly prejudice any other party to the
arbitration.
(i) The arbitration hearing shall be held within 30 days after the
appointment of the panel. Upon request of either Party, the
panel shall arrange for a transcribed record of the
arbitration hearing, to be made available to both Parties.
(j) The panel's final decision or award shall be made within 30
days after the hearing. That final decision or award shall be
made by unanimous or majority vote or consent of the
arbitrators constituting the panel, and shall be deemed issued
at the place of arbitration. The panel shall issue a reasoned
written final decision or award based on the Agreement and
Missouri law; the panel may not act according to equity and
conscience or as an amicable compounder or apply the law
merchant.
(k) The panel's final decision or award may include:
(i) recovery of Damages to the extent permitted by the
Agreement; or
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(ii) injunctive relief in response to any actual or
threatened breach of the Agreement or any other
actual or threatened action or omission of a Party
under or in connection with the Agreement.
(l) The panel's final decision or award shall be final and binding
upon the Parties, and judgment upon that decision or award may
be entered in any court having jurisdiction over either or
both of the Parties or their respective assets. The Parties
specifically waive any right they may have to apply or appeal
to any court for relief from the preceding sentence or from
any decision of the panel made, or any question of law
arising, before the final decision or award. If any decision
by the panel is vacated for any reason, the Parties shall
submit that Dispute to a new arbitration in accordance with
this Section B.3.
(m) Each Party shall pay one-half of the arbitrators' fees and
expenses, and shall bear all of its own expenses in connection
with the arbitration. The panel has the authority, however, to
award recovery of all costs and fees (including attorneys'
fees, administrative fees and the panel's fees and expenses)
to the prevailing Party in the arbitration.
4. RECOURSE TO COURTS. Nothing in the Dispute Resolution Procedure limits the
right of either Party to apply to a court or other tribunal having jurisdiction
to:
(a) enforce the Dispute Resolution Procedure, including the
agreement to arbitrate in this Dispute Resolution Appendix;
(b) seek provisional or temporary injunctive relief, in response
to an actual or impending breach of Article 10 of the
Agreement or otherwise so as to avoid irreparable damage or
maintain the status quo, until a final arbitration decision or
award is rendered or the Dispute is otherwise resolved; or
(c) challenge or vacate any final arbitration decision or award
that does not comport with Section B.3 of this Dispute
Resolution Appendix.
5. SUBMISSION TO JURISDICTION. Each Party irrevocably submits to the
jurisdiction of the federal courts of the United States and the state courts of
Missouri located in St. Louis County, Missouri. Each Party waives any defense or
challenge to that jurisdiction based on lack of personal jurisdiction, improper
venue, or inconvenience of forum.
6. CONFIDENTIALITY. The proceedings of all negotiations, mediations, and
arbitrations as part of the Dispute Resolution Procedure shall be privately
conducted. The Parties shall keep confidential all conduct, negotiations,
documents, decisions, and awards in connection with those proceedings under the
Dispute Resolution Procedure.
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SCHEDULE 1
IT, WEB HOSTING AND ADMINISTRATIVE BACK OFFICE SERVICES
The Services contained in this schedule involve the following areas:
1. Information Technology and Web Hosting
2. Basic financial operations
3. Basic business operations
4. Basic facilities support
1. INFORMATION TECHNOLOGY AND WEB HOSTING. Information Technology and Web
Hosting is defined as the basic support of TCB's technical and electronic
infrastructure. TCB will independently maintain executive management and its own
personnel who will be ultimately responsible for the functions. Where TCB deems
it to be efficient and cost effective, TCB may outsource some of the basic
functions consistent with the services provided to TCB by WWT, during the period
in which TCB was a division of WWT. Information Technology and Web Hosting
provides operational support and on-going maintenance of all information
technology and telecommunications systems including:
(i) Office automation
(ii) PC desktops
(iii) Telephones and switch
(iv) Electronic mail
(v) Internet and Web-based applications
(vi) Business applications support
This support is accomplished through a centralized help desk. End-users, or
clients, may request support via telephone, email or web-based form entry.
Requests are tracked and actively monitored via a web based action request
system.
The Services described included in this Section 1 are intended to include only
the basic services, and not the Consulting Services described in Schedule 2.
Where WWT determines that Consulting Services are required, such Services shall
be provided in accordance with the Agreement's terms and conditions for
Consulting Services, including without limitation Article 3 and Section 7.4 of
the Agreement.
2. BASIC FINANCIAL OPERATIONS. Basic Financial Operations is defined as all of
the functions necessary to generate materially accurate financial statements on
a timely basis. TCB will independently maintain executive management and its own
personnel who will be ultimately responsible for the functions. Where TCB deems
it to be efficient and cost effective, TCB may outsource some of the basic
functions consistent with the services provided to TCB by WWT during the period
in which TCB was a division of WWT. The performance of these functions by WWT
does not relieve the management of TCB from its responsibilities with respect to
reports
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and filings required under the applicable securities laws. The Tasks may
include but are not limited to the following:
(a) Financial Statement Generation
(i) Monthly, Quarterly and annually
(ii) Budgets vs. Actuals
(iii) Various other financial analysis
(b) Accounts Receivable
(i) Generating invoices
(ii) Processing credit applications and making credit decisions
(iii) Collections
(iv) Cash Receipts
(v) Other related A/R functions
(c) Accounts Payable
(i) Entering and processing vendor invoices
(ii) Expense report processing and coordination with A/P
(iii) Check Processing
(iv) Operational invoice processing
(v) Accrued Liabilities
(vi) Other related A/P functions
(d) Payroll
(i) Coordination of outsource to ADP for normal payroll processing
(ii) Timekeeping, vacation tracking, etc.
(iii) Year end processing of W-2's
(iv) Sales representative commission reporting
(v) Payroll tax coordination
(vi) Other related payroll functions
(e) Treasury Function/Cash Management
(i) Coordination and support of bank financing
(ii) Cash management services
(iii) Cash flow reporting
(iv) Bank reporting
(v) Forecasting
(f) Inventory
(i) Cost analysis
(ii) Cycle counting
(iii) Inventory control and segregation
(iv) Variance reporting and resolution
(g) Project Accounting
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(i) Project revenue/costing reports and analysis
(ii) Time tracking to task and sub task level
(iii) Project set up and accounting
(h) Tax Administration
(i) Federal, State and local tax compliance
(ii) Reporting and coordination of the outsource on above
(iii) Income tax account analysis
(iv) Sales and Use tax analysis and compliance
(v) Tax payment processing
(vi) Property and other general corporate taxation issues
(vii) Other related tax functions as necessary
(i) General Corporate Accounting/Issues
(i) Insurance planning and coordination
(ii) Fixed asset accounting
(iii) Other corporate accounting issues
3. BASIC BUSINESS OPERATIONS. Basic Business Operations is defined as the
post-sale related functions necessary to deliver products to WWT's customers,
assuring both customer satisfaction and maximum profitability for TCB. TCB will
independently maintain executive management and its own personnel who will be
ultimately responsible for the functions. Where TCB deems it to be efficient and
cost effective, TCB may outsource some of the basic functions consistent with
the services provided to TCB by WWT, during the period in which TCB was a
division of WWT. The Tasks may include but are not limited to the following:
(a) Vendor Management
(i) Volume agreements--managing contractual renewal dates,
maintaining and managing volume discount levels
(ii) Reporting - understanding contractual reporting requirements
(iii) Process development - EDI, Internet, Expediting process, etc.
(iv) Quality/ ISO Nonconformance Corrective Action Requests
(b) Contract Administration
(i) Managing a long term contract, with responsibility for
customer satisfaction and vendor relationship throughout life
of contract
(ii) Coordinating customer requirements, with shipping needs,
delivery schedules, vendor requirements and product
availability
(iii) Negotiating and analyzing profitability, reporting needs
(iv) Initiating shipping and invoicing
(v) Generating quotes and configurations
(c) Procurement
(i) Vendor selection criteria and ISO approved supplier list
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(ii) Negotiation - daily purchases as well as long term contractual
commitments Delivery
(iii) Scheduling - assuring the ability to meet customer required
delivery
(iv) Process Analysis-- Integration of vendor's information
systems/processes into WWT ERP where efficiencies can be
achieved
(d) Customer Service
(i) Returns/credits
(ii) Proof of delivery
(iii) Invoicing information
(iv) General WWT information
(v) Order status - Internet and telephone response
(v) Telemarketing
(v9) Communication and coordination with sales team and customer
base
(e) Ship Requests
(i) Coordination of availability and product integration
(ii) Coordination of carriers
(iii) Pick/pack slip requirements
(iv) Coordination with customers on acceptance of incoming
shipments
(f) Inventory Management
(i) Vendor relations
(ii) Forecasting - supply, demand, lead time
(iii) Stock rotation
(iv) Sales analysis
(v) Facility analysis - accommodation of inventory, racking, etc.
4. BASIC FACILITIES SUPPORT. Basic Facilities Support is defined as the basic
support and all of the associated functions necessary to provide a technically
advanced business environment for TCB. TCB will independently maintain executive
management and its own personnel who will be ultimately responsible for the
functions. Where TCB deems it to be efficient and cost effective, TCB may
outsource some of the basic functions consistent with the services provided to
TCB by WWT, during the period in which TCB was a division of WWT. The Tasks may
include but are not limited to the following:
(a) Strategic Site Planning
(i) Current condition assessment
(ii) Facilities requirements outlook
(iii) Buy/build /lease alternatives
(iv) Capital and financial budget
(b) Site Plan Implementation
(i) Property negotiations (buy/lease)
(ii) Space programming
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(iii) Infrastructure requirements (voice/data)
(iv) Project management
(c) Site Completion
(i) Final design
(ii) Request for proposals
(iii) Project management
(iv) Facilities operational procedures (inventory management,
shipping, receiving, inspection etc.)
(v) Operational contracts (maintenance, landscape, environmental
etc.)
(vi) Maintain/renegotiate lease agreements
(d) Warehousing
(i) Shipping
(ii) Receiving
(iii) Pick/pack activity
(iv) Inventory management via ERP interactive bar coding system
(v) Negotiate/maintain carrier contracts
(v) Procure/maintain related equipment (forklifts, cable spoolers,
banding equip, rder pickers, shrink-rap equip. associated
vehicles, etc.)
(e) Quality Systems
(i) Oversee all quality control initiatives
(ii) Assist in the development and improvement of all quality
related processes and procedures
(iii) Maintain ISO 9002 certification
(iv) Attain TL9000 certification
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SCHEDULE 2
CONSULTING SERVICES
Consulting Services consist of:
1. Business Application Consulting,
2. System Network Services, and
3. Internet Business Solutions and Software Development.
1. BUSINESS APPLICATION CONSULTING. WWT's Business Applications Consulting
("BAC") Group provides the following services to clients in the
telecommunications, distribution and manufacturing industries. It is
expected that the BAC team will provide these services for TCB for the
initial implementation of the company's application set, as well as for
ongoing enhancements and backup support:
(a) ENTERPRISE PROJECT MANAGEMENT AND METHODOLOGY: WWT's propriety Ventana
methodology was developed specifically for the efficient, comprehensive
implementation of packaged applications solutions across the enterprise. This
methodology has proven to be successful for a variety of clients, including
WWT's inaugural implementation of Oracle Applications in March 1998. BAC offers
this approach together with the experience of WWT's individual Project Managers
to lead complex projects to completion.
(b) BUSINESS PROCESS ANALYSIS & DESIGN: BAC consultants serve as the "bridge"
between the core needs of the business and the corresponding optimal process
design and software configuration. This service includes facilitation of
requirements gathering and design sessions.
(c) APPLICATION SOFTWARE CONFIGURATION: The experience of the BAC team with a
variety of enterprise software applications, including Oracle applications, is
critical to rapidly transform business requirements and process designs into
functional software. WWT's strategy of business and technology "alignment"
results in effective solutions, deployed rapidly.
(d) TECHNICAL DEVELOPMENT: Packaged software, by its nature, cannot meet the
needs of every client. In virtually every client situation, BAC meets WWT's
clients' needs to develop interfaces to outside systems, data conversion
routines, and custom extensions to the base package.
(e) SYSTEM ADMINISTRATION: The BAC team provides system administration services
for "light duty" technical needs including software installation and
troubleshooting. For "heavy duty" needs, the BAC team calls upon WWT's Internet
Core Technology and Systems and Network Services practices.
(f) SOFTWARE ANALYSIS AND SELECTION: Members of the BAC team research and
implement new business software applications in order to analyze a client's
situation and recommend the most appropriate strategy and solution to meet its
needs.
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2. SYSTEM NETWORK SERVICES: WWT's Systems and Network Services ("SNS") focuses
on providing customers with services relating the "Digital Foundation", that is,
all computer-related communications. This Digital Foundation consists of LAN's,
WAN's, Internet connectivity, remote access/dial-up connectivity and all of the
components that make this connectivity work properly.
SNS is made up of team of professionals who deliver consulting services to WWT's
customers. These professionals have the experience, training and certifications
to provide value to WWT's customers. Some of the most key vendor solutions that
our team works with include Cisco Systems, Sun, Microsoft, Novell, Network
Associates and many others.
The professional services address each area of the Digital Foundation from a
company's entire Digital Foundation to specific solutions for a particular area.
SNS provides proven methods and experienced people to provide the right solution
for each customer. SNS comprehensive service offerings include:
o Total Cost of Network Ownership Study;
o Digital Foundation Review and Assessment;
o LAN / WAN design, implementation and support services;
o Network Operating Systems (NT, NetWare, Sun Solaris);
o design, implementation and support services;
o Messaging Solutions (Microsoft Exchange, Lotus Notes, Sun SIMS, etc.);
o Remote Dial-in / out solutions (a.k.a. remote access);
o Network Security Solutions; and
o Capacity Planning Recommendations.
3. INTERNET BUSINESS SOLUTIONS AND SOFTWARE DEVELOPMENT:
Software Development group provides software consulting services to design,
develop and implement software applications and complete turn-key systems.
Application development projects include:
o Creating Interfaces to existing applications;
o Customizing and extending off-the-shelf applications to meet enhanced user
requirements; and
o Developing custom applications based on component modules that may have
already been developed or provided by 3rd party ISVs or software manufacturers.
The Software Development group specializes in key technology areas that, while
complex and rapidly changing, are the key areas for a business's current
operations and future business growth. These key technology areas are;
E-Business Solutions, Oracle Core Technology, and Information Technology
Professional Services. The specific products and services provided in these key
technology areas include E-Business Solutions, Web Applications, Livelink,
Custom WWT Java Servelets, and Web Development.
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EX.10.2
LICENSING AGREEMENT
This LICENSING AGREEMENT is dated January 21, 2000 and made effective
as of October 1, 1999, between World Wide Technology, Inc., a Missouri
corporation ("WWT"), and telcobuy.com LLC, a Delaware limited liability company
("TCB", each of WWT and TCB being a "PARTY" and together the "PARTIES").
RECITALS
A. TCB has been a division of WWT and is now a separate, majority-owned
subsidiary of WWT. TCB provides an Internet source of material and
information to telecommunications companies through the use of software
and related technology licensed to or developed by WWT, and combined by
WWT into the Global Portal Platform.
B. Because WWT's ownership of TCB may be reduced, the Parties wish to
state formally the terms on which the Global Portal Platform will
continue to be provided to TCB.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
Various terms used in this Agreement are defined in the Definitional
Appendix; the defined terms used in this Agreement begin with a capital letter.
Various interpretative matters for this Agreement are also set forth in the
Definitional Appendix. The Definitional Appendix is an integral part of this
Agreement.
ARTICLE 2. TERM
This Agreement commences on the Effective Date and will continue in
effect unless terminated by the agreement of the Parties or in accordance with
Article 13.
ARTICLE 3. GRANT OF LICENSE
3.1. GRANT OF LICENSE. Subject to the terms and limitations of this
Agreement and the payment of the License Fee, WWT hereby grants to TCB,
and TCB hereby accepts from WWT, a non-exclusive, world-wide, perpetual
license to use, modify, develop applications for, market, distribute
and sublicense the Global Portal Platform and the WWT Background
Technology.
3.2. REPRESENTATION AND WARRANTY. WWT represents and warrants that the
license granted to TCB under Section 3.1 includes the rights to all
software and other technology that are required for TCB to use the
Global Portal Platform in the same manner and to the same extent as
used by WWT and TCB prior to the Effective Date, including without
limitation
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
the WWT Background Technology and, subject to Section 6.5, all
third-party software products incorporated or integrated with or used
in connection with the Global Portal Platform or provided by WWT as
part of the Global Portal Platform.
ARTICLE 4. LICENSE FEE
In consideration of the license granted herein, TCB agrees to pay WWT
the License Fee not later than the first to occur of (i) September 30, 2001, or
(ii) 10 days after the closing of any public offering of equity interests in TCB
or its successors, or (iii) 10 days after the closing of the sale or other
transfer of the beneficial ownership of any equity interests in TCB or its
successor if immediately after such sale or transfer persons who held the
beneficial ownership of 100% of the combined voting power all of the equity
interests in TCB immediately prior to such sale or transfer do not, immediately
thereafter, own more than 50% of the combined voting power of all equity
interests in TCB.
ARTICLE 5. ENHANCEMENTS
5.1. INCORPORATION OF ENHANCEMENTS. So long as the Global Portal Platform
used by TCB is resident on the hardware maintained at the facilities of
WWT, WWT shall have the right to incorporate any and all Enhancements
to the Global Portal Platform made by WWT as part of the Global Portal
Platform, without the payment of additional amounts to or by TCB,
whether or not such Enhancements were made as the result of Consulting
Services provided by WWT to TCB under the Management Services
Agreement. Such Enhancements shall be subject to the provisions of this
Agreement, including without limitation the confidentiality provisions
and the provisions regarding the sole and exclusive ownership thereof
by WWT.
5.2. WWT RIGHT TO LICENSE ENHANCEMENTS. In the event that TCB requests that
WWT make Enhancements to the Global Portal Platform, WWT and TCB shall
mutually agree upon the terms upon which WWT shall perform such
services, and TCB shall have the right to incorporate such Enhancements
in the Global Portal Platform and to license or sub-license such
Enhancements to third parties, consistent with the terms of this
Agreement.
ARTICLE 6. TRANSFER TO TCB FACILITIES
6.1. INSTALLATION AT TCB FACILITIES. The Global Portal Platform shall
initially be resident and operated on hardware installed and maintained
at the facilities of WWT. On not less than 90 days advance written
Notice to WWT, TCB may elect to install a copy of the Global Portal
Platform to hardware installed and maintained at the facilities of TCB.
6.2. DELIVERY OF SOURCE CODE. At the time of such installation of the Global
Portal Platform at the facilities of TCB, WWT shall provide TCB with a
copy of the source code for the portions of the Global Portal Platform
for which WWT has the legal right to do so (the "WWT SOURCE CODE"). The
use of the WWT Source Code by TCB shall be subject to the limitations
set forth in Article 7 of this Agreement. WWT and TCB shall jointly
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select an escrow agent (the "ESCROW AGENT") and shall enter into a
source code escrow agreement with such Escrow Agent on terms mutually
agreeable to the parties thereto (the "ESCROW AGREEMENT"). WWT shall
place one copy of the WWT Source Code in escrow with the Escrow Agent,
to be held by such Escrow Agent pursuant to the terms of the Escrow
Agreement. The Escrow Agreement shall provide, among other things, for
release of the WWT Source Code to TCB upon the written Notice from TCB
that WWT has failed to provide TCB with a copy of the WWT Source Code
as required under this Agreement, or upon the occurrence of any of the
Events of Default by WWT described in paragraphs (a), (b), (c) or (d)
of Section 13 of this Agreement. WWT shall update the WWT Source Code
held by the Escrow Agent from time to time as required to keep a
current copy of the WWT Source Code on deposit with the Escrow Agent.
The costs and expenses of establishing and maintaining the WWT Source
Code escrow and of updating the WWT Source Code deposit shall be shared
equally by WWT and TCB.
6.3. PROPRIETARY NOTICES. TCB shall not remove or alter any trademark,
copyright, or other proprietary notice contained on or in the Global
Portal Platform. WWT's copyright notice and other proprietary legends
and labels affixed on the Global Portal Platform as delivered by WWT
must also be affixed on and in all copies. The inclusion of a copyright
notice on any software product or documentation shall not cause, or be
construed to cause, it to be a published work.
6.4. TRAINING AND MAINTENANCE. Upon WWT's receipt of written Notice from TCB
under Section 6.1, WWT agrees to negotiate with TCB in good faith to
reach agreement on the terms and conditions under which WWT will
provide: (a) such training as may be reasonably required for TCB to
operate and maintain the Global Portal Platform at its own facilities,
and (b) future maintenance and support of the Global Portal Platform
resident at the facilities of TCB.
6.5. THIRD-PARTY LICENSES. TCB acknowledges and agrees that at the time of
such installation of the Global Portal Platform at the facilities of
TCB, TCB may be required to obtain its own licenses to third-party
software products incorporated or integrated with or used in connection
with the Global Portal Platform or provided by WWT as part of the
Global Portal Platform, and that the procurement of such licenses shall
be the sole responsibility and expense of TCB.
ARTICLE 7. INTELLECTUAL PROPERTY RIGHTS
7.1. OWNERSHIP BY WWT. All of the Global Portal Platform and the media on
which it may be delivered to TCB remain the sole and exclusive property
and trade secret of WWT, except to the extent that the Global Portal
Platform may contain or be derived from portions of materials provided
by third party suppliers under license to WWT. Notwithstanding anything
in this Agreement to the contrary, the parties acknowledge and agree
that, except for such rights as are expressly granted to TCB hereunder
and such rights of third parties described above, WWT has and shall
have all right, title and interest, including all copyrights and
property rights, in and to the Global Portal Platform, and all
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Enhancements thereto, whether developed by or on behalf of WWT or TCB,
and all Intellectual Property Rights related thereto and all economic
benefits resulting therefrom. Nothing in this Agreement, nor any other
act or omission of WWT, shall be construed as a grant, transfer,
conveyance, assignment or concession by WWT, or the consent by WWT to
any such grant, transfer, conveyance, assignment or concession, to TCB
of any copyright, property right, ownership or other proprietary right
in the Global Portal Platform, any Enhancements thereto developed by or
on behalf of WWT or TCB, the Intellectual Property Rights related
thereto, or the economic benefits resulting therefrom.
7.2. DERIVATIVE WORKS. Following the delivery of the source code to TCB
pursuant to Section 6.2 hereof, TCB may create derivative works of the
Global Portal Platform and will own all right, title and interest in
and to such derivative works and the intellectual property rights
thereto, and may use such derivative works to the same extent that TCB
is entitled to use the Global Portal Platform.
ARTICLE 8. RESTRICTIVE COVENANTS
8.1. COVENANT BY WWT. For so long as TCB has the right to use the Global
Portal Platform under this Agreement, WWT agrees that it shall not,
directly or indirectly, use, or authorize or allow others to use, the
Global Portal Platform to provide products or services by any vendor or
to any customer if such vendor or customer either (a) derives more than
25% of its revenue from the provision of telecommunications products or
services, or (b) generates annual gross revenue from the provision of
telecommunications products or services in excess of $100,000,000 for
the immediately preceeding calendar year.
8.2. THIRD-PARTY OPPORTUNITIES.
(a) TCB shall have the right, at any time and from time to time,
to pursue opportunities to license the Global Portal Platform
to any third party in any field of use (a "THIRD-PARTY
OPPORTUNITY"). In the event that TCB is unable to conclude a
definitive agreement within a reasonable time with respect to
the Third-Party Opportunity, then TCB shall Notify WWT in
writing, describing in reasonable detail such Third-Party
Opportunity. Thereafter, WWT shall have the right to seek to
obtain a definitive agreement with respect to the Third-Party
Opportunity.
(b) In the event that WWT becomes aware of any Third-Party
Opportunity, WWT shall Notify TCB in writing of such
Third-Party Opportunity, describing in reasonable detail such
Third-Party Opportunity. WWT shall not pursue such Third-Party
Opportunity unless TCB does not conclude a definitive
agreement with respect to such Third-Party Opportunity within
a reasonable time after having received Notice thereof from
WWT.
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ARTICLE 9. WARRANTY
9.1. WARRANTY OF PERFORMANCE. Provided that TCB supplies the hardware and
ancillary software required and approved by WWT and obtains from WWT
maintenance and support of the Global Portal Platform resident at the
facilities of TCB, WWT warrants that, for the Warranty Period, the
Global Portal Platform will be free from material reproducible
programming errors and defects in workmanship and materials, and will
substantially conform to WWT's user documentation, when maintained and
operated in accordance with WWT's instructions. If material
reproducible programming errors are discovered during the Warranty
Period, WWT shall promptly remedy them at no additional expense to TCB.
This warranty to TCB shall be null and void if TCB is in default under
this Agreement or if the nonconformance is due to: (a) hardware
failures due to defects, power problems, environmental problems or any
cause other than the Global Portal Platform itself; (b) modification of
the Global Portal Platform by any party other than WWT; or (c) misuse,
errors or negligence of TCB, its employees or agents in operating the
Global Portal Platform.
9.2. REIMBURSEMENT OF WWT EXPENSES. If WWT reasonably determines that the
Global Portal Platform for which TCB's requested warranty service is
not eligible for warranty service, TCB shall pay or reimburse WWT for
all reasonable costs of investigating and responding to such request at
WWT's then prevailing time and materials rates.
9.3. LIMITATIONS. THE WARRANTIES OF WWT CONTAINED IN THIS AGREEMENT ARE
EXCLUSIVE. THEY ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NON-INFRINGEMENT, OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A
COURSE OF DEALING OR USAGE OF TRADE. WWT'S SOLE OBLIGATION AND TCB'S
EXCLUSIVE REMEDY FOR ANY WARRANTY FAILURE IS THE CORRECTION OR
REPLACEMENT, AT WWT'S OPTION, OF THE NONCONFORMING PORTION OF THE
GLOBAL PORTAL PLATFORM. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, AND IRRESPECTIVE OF ANY FAULT OR NEGLIGENCE, WWT SHALL NOT
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO
BUSINESS, LOST REVENUES, LOST SALES, LOST SAVINGS, LOST PROFITS
(ANTICIPATED OR ACTUAL), LOSS OF USE, DOWNTIME AND CLAIMS OF THIRD
PARTIES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,
WARRANTY, STRICT LIABILITY OR TORT (INCLUDING WITHOUT LIMITATION
NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE), OR ANY OTHER LEGAL
OR EQUITABLE THEORY, ALL WHETHER OR NOT WWT HAS BEEN APPRISED OR
NOTIFIED THAT ANY SUCH DAMAGES OR LOSSES ARE POSSIBLE OR LIKELY, AND
WHETHER OR NOT ANY PERMITTED REMEDY HAS FAILED ITS ESSENTIAL PURPOSE.
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ARTICLE 10. CONFIDENTIAL INFORMATION
10.1. CONFIDENTIAL INFORMATION. Each Party shall keep confidential the
following information which is "Confidential Information" whether
acquired by it under or in connection with this Agreement or obtained
in connection with the relationship of WWT and TCB or its predecessors
regarding the Global Portal Platform before the Effective Date:
(a) information relating to the other Party's business, financial
condition or performance, or operations that the other Party
treats as confidential or proprietary;
(b) the terms and performance of, any breach under, or any Dispute
regarding this Agreement;
(c) the Parties' conduct, decisions, documents, and negotiations
as part of, and the status of, any Dispute resolution
proceedings under the Dispute Resolution Procedure;
(d) any information, business plan, concept, idea, know-how,
process, technique, program, design, formula, algorithm or
work-in-process, any engineering, manufacturing, marketing,
technical, financial, data, or sales information, or any
information regarding suppliers, customers, employees,
investors, or business operations, and any other information
or materials, whether in written, or graphic, or any other
form or that is disclosed orally, or electronically, or
otherwise which is learned or disclosed in the course of
discussions, studies, or other work undertaken between the
parties; and
(e) any other information, whether in a tangible medium or oral
and whether proprietary to the other Party or not, that is
marked or clearly identified by the other Party as
confidential or proprietary.
(f) Without limiting the generality of the foregoing, Confidential
Information shall include all information and materials
disclosed orally or in any other form, regarding WWT's
software products or software product development, including,
but not limited to, the configuration techniques, data
classification techniques, user interface, applications
programming interfaces, data modeling and management
techniques, data structures, and other information of or
relating to WWT's software products or derived from testing or
other use thereof.
Neither Party may use any of the other Party's Confidential Information
other than as required to perform its obligations or exercise its
rights and remedies, including as part of the resolution of any
Dispute, under this Agreement.
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10.2. EXCLUDED INFORMATION. A Party has no obligation under this Article 10
regarding any information, including information that would otherwise
by Confidential Information, to the extent that the information:
(a) is or becomes publicly available or available in the industry
other than as a result of any breach of this Agreement or any
other duty of that Party;
(b) is or becomes available to that Party from a source that, to
that Party's knowledge, is lawfully in possession of that
information and is not subject to a duty of confidentiality,
whether to the other Party or another Person, violated by that
disclosure; or
(c) is independently developed by employees of the receiving Party
who did not have access to the disclosing Party's Confidential
Information.
10.3. STANDARD OF CARE. Each Party shall use the same degree of care in
maintaining the confidentiality and restricting the use of the other
Party's Confidential Information as that Party uses with respect to its
own proprietary or confidential information, and in no event less than
reasonable care.
10.4. PERMITTED DISCLOSURES. A Party may disclose Confidential Information to
its officers, directors, agents, or employees as necessary to give
effect to this Agreement. Each Party shall inform each of these Persons
to whom any Confidential Information is communicated of the obligations
regarding that information under this Article 10 and impose on that
Person the obligation to comply with this Article 10 regarding the
Confidential Information. Each Party shall be responsible for any
breach of that Party's obligations under this Article 10 by its
officers, directors, agents, or employees.
10.5. REQUIRED DISCLOSURES. Each Party may disclose Confidential Information
in response to a request for disclosure by a court or another
Governmental Authority, including a subpoena, court order, or
audit-related request by a taxing authority, if that Party:
(a) promptly Notifies the other Party of the terms and the
circumstances of that request;
(b) consults with the other Party, and cooperates with the other
Party's reasonable requests, to resist or narrow that request;
(c) furnishes only information that, according to written advice
(which need not be a legal opinion) of its legal counsel, that
Party is legally compelled to disclose; and
(d) uses its Reasonable Efforts to obtain an order or other
reliable assurance that confidential treatment will be
accorded the information disclosed.
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A Party need not comply with these conditions to disclosure, however,
to the extent that the request or order of the Governmental Authority
in effect prohibits that compliance. A Party may also disclose
Confidential Information without complying with these conditions to the
extent that the Party is otherwise legally obligated to do so (for
example, to comply with applicable securities laws), as confirmed by
advice of competent and knowledgeable counsel. Further, a Party may
also disclose Confidential Information, without complying with these
conditions, in connection with a tax audit if the disclosure is to
representatives of a taxing authority, or in connection with a tax
contest if that Party uses its Reasonable Efforts to assure that
confidential treatment will be accorded the information disclosed.
10.6. TITLE TO INFORMATION. The Confidential Information of a Party disclosed
by it to the other Party under this Agreement shall remain the property
of the disclosing Party; nothing in this Agreement grants or conveys to
the other Party any ownership or other proprietary rights in any of
that Confidential Information.
10.7. SURVIVAL; RETURN. The obligations under this Article 10 shall continue
on and after Expiration or the termination of this Agreement. Upon
request of the disclosing Party upon or after Expiration or the
termination of this Agreement, the other Party shall return or, if
requested by the disclosing Party, destroy the Confidential Information
of the disclosing Party that it holds. The requested return or
destruction shall include removal or deletion of Confidential
Information from all data bases and magnetic media of the other Party.
ARTICLE 11. PARTIES' RELATIONSHIP
11.1. INDEPENDENT. The Parties are independent; each has sole authority and
control of the manner of, and is responsible for, its performance of
this Agreement. This Agreement does not create or evidence a
partnership or joint venture between the Parties. Neither Party may
create or incur any liability or obligation for or on behalf of the
other Party, except as described in this Agreement. This Agreement does
not restrict WWT from providing or rendering any services or products,
including services or products like the Global Portal Platform, to any
other Person; nothing in this Agreement, however, gives WWT the right
to provide or render any services or product in violation of any other
agreement entered into by the Parties.
11.2. EMPLOYEES. Except as described in Section 14.4(b) or Section 14.4(c)
or, for the purposes of this Agreement:
(a) each Party is solely responsible for its own employees or
agents, including the actions or omissions and the
compensation of those employees and agents, and
(b) neither Party has any authority with respect to any of the
other Party's employees or agents.
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11.3. AUTHORITY AND ENFORCEABILITY. Each Party warrants to the other Party
that:
(a) it has the requisite corporate authority to enter into and
perform this Agreement;
(b) its execution, delivery, and performance of this Agreement
have been duly authorized by all requisite corporate action on
its behalf;
(c) this Agreement is enforceable against it; and
(d) it has obtained all consents or approvals of Governmental
Authorities and other Persons that are conditions to its
entering this Agreement.
11.4. THIRD-PARTY LICENSES AND CONSENTS. Each Party shall be responsible for
obtaining and maintaining any licenses, permits, consents, or approvals
of Governmental Authorities and other Persons necessary or appropriate
for it to perform its obligations under this Agreement.
11.5. FURTHER ASSURANCES. Each Party shall take such actions, upon request of
the other Party and in addition to the actions specified in this
Agreement, as may be necessary or reasonably appropriate to implement
or give effect to this Agreement.
ARTICLE 12. PARTIES' REPRESENTATIVES
12.1. REPRESENTATIVES' AUTHORITY. Each Party has authorized its
Representative to conduct discussions and negotiations, make and
communicate decisions, frame and pose questions or issues, and resolve
Disputes on behalf of that Party relating to this Agreement. Though one
Party's employees or agents other than its Representative may also take
actions of the kinds described in the preceding sentence with the other
Party's employees or agents other than its Representative, matters that
require more formal discussions or negotiations between Parties shall
be addressed through and by the Representatives. Each Party and its
Representative are entitled to rely on the actions and decisions of the
other Party's Representative relating to this Agreement.
12.2. DESIGNATION. WWT designates its Vice President and General Manager as
WWT's Representative, and TCB designates its Chief Technology Officer
as TCB's Representative, upon and after the Effective Date until
changed by the designating Party. A Party may change its Representative
by Notice to the other Party. A Party may rely on and deal with the
Person who is designated as the other Party's Representative until any
Notice of change is given by the other Party.
ARTICLE 13. EVENTS OF DEFAULT
13.1. EVENTS OF DEFAULT. The following shall constitute "EVENTS OF DEFAULT"
by a Party under this Agreement:
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(a) such Party makes a general assignment of all or substantially
all of its assets for the benefit of its creditors;
(b) such Party applies for, consents to, or acquiesces in the
appointment of a receiver, trustee, custodian, or liquidator
for its business or all or substantially all of its assets;
(c) such Party files, or consents to or acquiesces in, a petition
seeking relief or reorganization under any bankruptcy or
insolvency laws; or
(d) a petition seeking relief or reorganization under any
bankruptcy or insolvency laws is filed against such Party and
is not dismissed within 90 days after it was filed;
(e) such Party's material breach of this Agreement which continues
uncured or uncorrected for 30 days after such Party's receives
Notice of such breach from the other Party, but if the
breaching Party (A) reasonably requires longer than 30 days to
cure or correct, and (B) Notifies the non-breaching Party of
the circumstances, then the cure period shall be extended for
the reasonable time so required, so long as during that time
the breaching Party diligently acts to effect that cure or
correction. Unless otherwise agreed in writing by the Parties,
no cure period extension shall exceed 90 days; and
(f) failure by TCB to pay any amount due to WWT under this
Agreement by the tenth Business Day after Notice of such
nonpayment has been given to TCB by WWT.
13.2. CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) Notwithstanding the occurrence of an Event of Default
hereunder or other breach by TCB of any legal duty or
obligation imposed by any contract (including this Agreement),
by the law of torts (including simple or gross negligence,
strict liability or willful misconduct), or by federal or
state laws, rules, regulations, orders, standards or
ordinances, WWT shall have no right to revoke or terminate,
through injunctive relief or otherwise, the license granted to
TCB under Article 3, it being understood and agreed that each
such breach shall be compensable, if at all, by a remedy at
law.
(b) Upon the occurrence of an Event of Default by WWT, TCB may
elect to terminate this Agreement, upon Notice to WWT
specifying the Termination Date.
13.3. CONSEQUENCES OF TERMINATION BY TCB. Upon termination of this Agreement
by TCB under Section 13.2(b), then during the Transition Period WWT
shall comply, at WWT's expense, with TCB's reasonable requests for
assistance in TCB's obtaining another solution having functionality
substantially equivalent to the functionality of the Global
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Portal Platform in effect immediately preceding the Termination Date.
Articles 8 and 17 shall apply in this situation as though this
Agreement had not been terminated. If the records or other information
provided by WWT are Confidential Information, Article 10 shall also
apply as though this Agreement had not been terminated.
13.4. SURVIVAL OF RIGHTS AND OBLIGATIONS. No rights or obligations of either
Party that expressly or by implication are to remain in effect in order
to give effect to this Agreement shall be impaired by the termination
of this Agreement, and those rights and obligations shall remain in
effect.
ARTICLE 14. LIABILITY AND REMEDIES
14.1. WARRANTIES. Each Party's warranties in this Agreement are made solely
to and for the benefit of the other Party. No Person other than a Party
may make a claim based on the other Party's warranties under this
Agreement.
14.2. DEFICIENCIES. TCB shall promptly Notify WWT of any Deficiency in the
Global Portal Platform. To the extent WWT agrees, or it is otherwise
determined by the Dispute Resolution procedure, that any material
portion of the Global Portal Platform was or is Nonconforming, WWT
shall use its Reasonable Efforts promptly to cure or correct the
Deficiency to the extent it may then be cured or corrected.
14.3. ACTUAL DAMAGES. Neither Party shall be liable under or relating in any
manner to this Agreement for any losses or damages other than Damages,
even if a Party has been advised of the possibility of losses or
damages of that kind and regardless of the form of the Proceedings or
the theory of liability, whether based on contract, warranty, tort
(including negligence and strict liability), infringement, or
misappropriation.
14.4. INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall
apply to any breach of, and certain other Damages relating to, this
Agreement, other than a nonpayment by TCB of any amount relating to an
invoice:
(a) each Party shall indemnify the other Party against all Damages
of the Indemnified Party, or any of its Indemnified Agents,
resulting from or relating to:
(i) any breach of this Agreement, including breach of any
warranty in this Agreement, by the Indemnifying
Party;
(ii) any Proceedings relating to a breach of this
Agreement by the Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's
employees or agents under or in connection with this
Agreement.
(b) TCB shall also indemnify WWT against all Damages of WWT or any
of its Indemnified Agents resulting from or relating to any
sales, use, or similar taxes
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(however described) applicable to TCB's use of the Global
Portal Platform, in whole or in part, that are assessed or
levied against or paid by WWT.
(d) The indemnification obligations in Sections 14.4(a) and
14.4(b) shall be extinguished to the extent that the Damages
of the other Party, or any of its Indemnified Agents for whom
or which the other Party is seeking indemnification, were
caused by the gross negligence (including recklessness) or
willful misconduct of the Person for whom or which
indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON
OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS
SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM
RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS
AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party
Claim, the Indemnified Party shall give an Indemnification
Claim Notice promptly after the event constituting the basis
for the Indemnification Claim; its failure to do so, however,
shall relieve the Indemnifying Party of its indemnification
obligations only to the extent the Indemnifying Party is
actually prejudiced by that failure. If the Indemnified Party
gives an Indemnification Claim Notice regarding an
Indemnification Claim not based on a Third-Party Claim, the
Indemnifying Party shall Notify the Indemnified Party within
the Indemnification Response Period whether the Indemnifying
Party disputes all or any portion of the Indemnification
Claim. If the Indemnifying Party does not give that dispute
Notice or agrees to accept liability for all or a portion of
the Indemnification Claim, the Indemnification Claim, or the
agreed portion of that Indemnification Claim, shall be the
Indemnifying Party's liability. Otherwise, the Indemnification
Claim shall be deemed a Dispute to be resolved by the Dispute
Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-party Claim:
(i) The Indemnified Party shall give an Indemnification
Claim Notice promptly after it receives the
Third-Party Claim.
(ii) The Indemnifying Party shall be entitled to defend
the Third-Party Claim, with its chosen counsel and at
its own expense, if (A) the Third-Party Claim seeks
only monetary relief against the Indemnified Party,
and (B) the Indemnifying Party elects to assume, and
diligently conducts, that defense. The Indemnifying
Party's election to defend shall be given by Notice
to the Indemnified Party within the Indemnification
Response Period. If the Indemnifying Party conducts
the defense, the Indemnified Party may participate in
that defense with its own counsel and at its own
expense.
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(iii) If the Indemnifying Party does not elect to defend
the Third-Party Claim by Notice within the
Indemnification Response Period, or if the
Indemnifying Party does not diligently conduct the
defense, the Indemnified Party shall be entitled,
upon further Notice to the Indemnifying Party, to
defend the Third-Party Claim on behalf of, and for
the account and risk of, the Indemnifying Party (if
it is determined that the Indemnifying Party has an
indemnification obligation regarding that
Indemnification Claim). In this circumstance, the
Indemnifying Party may participate in the defense
with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it
inappropriate for the same counsel to represent the
Indemnifying Party and the Indemnified Party in
defending the Third-Party Claim, the Indemnifying
Party shall pay for separate counsel for the
Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim
may compromise, settle, or resolve that Third-Party
Claim without the Indemnified Party's consent if the
compromise, settlement, or resolution involves only
the payment of money by the Indemnifying Party
(whether on its own behalf or behalf of the
Indemnified Party) and the third-party claimant
provides the Indemnified Party a release from all
liability regarding the Third-Party Claim. Otherwise,
the Indemnifying Party may not compromise, settle, or
resolve the Third-Party Claim without the Indemnified
Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate with all reasonable requests of the
other in defending any Third-Party Claim.
14.5. TIME FOR CLAIMS. A Party may make an Indemnification Claim:
(a) not based on a Third-Party Claim, only within two years after
the breach or other event constituting the basis for that
Indemnification Claim occurred, even if not discovered until
after that second anniversary, or
(b) based on a Third-Party Claim, at any time.
14.6. OFFSET. A Party entitled to any payment due from the other Party under
this Agreement may offset all or any portion of the amount of that
payment against any payment that is due from it to the other Party
under this Agreement.
14.7. EXCLUSIVE REMEDIES. Except for the warranty provisions of Article 9,
the termination right stated in Article 13 and the relief described in
Sections 15.4 and 17.2(b) and in the Dispute Resolution Procedure, the
remedies described in this Article 14 are the exclusive rights and
remedies of a Party regarding any breach of this Agreement or any other
matter that may be the subject of an Indemnification Claim.
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14.8. EQUITABLE RELIEF. Subject to the limitation set forth in Section
13.2(a), to the extent that monetary relief is not a sufficient remedy
for any breach of this Agreement, or upon any breach or impending
breach of Article 10, the non-breaching Party shall be entitled to
injunctive relief as a remedy for that breach or impending breach by
the other Party, in addition to any other remedies granted to the
non-breaching Party in this Agreement. That injunctive relief shall be
sought through arbitration in accordance with the Dispute Resolution
Procedure, except as permitted by Section B.4(b) of the Dispute
Resolution Appendix.
14.9. WAIVER OF REMEDIES. No forbearance, delay, or indulgence by either
Party in enforcing this Agreement, within the applicable time limits
stated in this Agreement, shall prejudice the rights or remedies of
that Party. No waiver of a Party's rights or remedies regarding a
particular breach of this Agreement constitutes a waiver of those
rights or remedies, or any other rights or remedies, regarding any
other or any subsequent breach of this Agreement.
14.10. SURVIVAL. The rights, remedies, and obligations under this Article 14
shall continue on and after Expiration or the termination of this
Agreement.
ARTICLE 15. FORCE MAJEURE
15.1. NO BREACH OR LIABILITY. No delay or failure of a Party to perform any
of its obligations, other than payment obligations, under this
Agreement due to causes beyond its reasonable control shall constitute
a breach of this Agreement or render that Party liable for that delay
or failure. Causes beyond a Party's reasonable control include:
(a) events or circumstances that the Party, using its Reasonable
Efforts, is unable to prevent or overcome; and
(b) labor disputes, strikes, or other similar disturbances; acts
of God; utilities or communications failures; acts of the
public enemy; and riots, insurrections, sabotage, or
vandalism.
15.2. NOTICE OF EXCUSABLE DELAY OR FAILURE. If a Party anticipates any
excusable delay or failure under Section 15.1, it shall promptly Notify
the other Party of the anticipated delay or failure, the anticipated
effect of that delay or failure, and any actions that are being or are
to be taken to alleviate or overcome the cause of the delay or failure.
15.3. EFFORTS TO OVERCOME. If a Party is claiming an excusable delay or
failure under Section 15.1, it shall use its Reasonable Efforts to
alleviate or overcome the cause of the delay or failure as soon as
practicable.
15.4. EXTENDED DELAY OR FAILURE. If an excusable delay or failure continues
for more than 10 consecutive days, the Party entitled to the benefit of
the affected obligation may, at its own expense, perform itself or
obtain from any other Person the obligation to which that Party is
entitled (and that Party shall Notify the other Party of this
election).
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ARTICLE 16. DISPUTE RESOLUTION MATTERS
16.1. GENERAL PROCEDURES. Except as otherwise stated in this Agreement, the
Parties shall resolve all Disputes in accordance with the Dispute
Resolution Procedure. Nevertheless, if any Person other than the
Parties:
(a) has initiated a lawsuit or other Proceedings against or
involving either or both of the Parties in which a Dispute
will be resolved, or
(b) is a necessary participant in any Proceedings to resolve a
Dispute and cannot be joined by either or both of the Parties
in an arbitration of that Dispute under Section B.3 of the
Dispute Resolution Appendix,
so that (in either case) the Dispute Resolution Procedure is or will be
ineffective, then the Parties need not use or follow the Dispute
Resolution Procedure to resolve that Dispute, though the submission to
jurisdiction in Section B.5 of the Dispute Resolution Appendix shall
apply if necessary.
16.2. CONTINUED PERFORMANCE. The Parties shall continue performing their
respective obligations under this Agreement while a Dispute is being
resolved.
16.3. PARTIES' AGREEMENT. Nothing in this Article 16 or the Dispute
Resolution Procedure prevents the Parties from resolving any Dispute by
mutual agreement at any time.
ARTICLE 17. EXPENSES AND TAXES
17.1. EXPENSES. Each Party shall be solely responsible for its costs and
expenses incurred in performing its obligations and exercising its
rights and remedies under this Agreement, except as otherwise provided
in this Agreement.
17.2. TAXES. The Parties shall be responsible for tax payments or liabilities
relating to this Agreement as follows:
(a) Each Party shall be responsible for its income and franchise
taxes and for all other taxes (however described) based on its
own income or earnings.
(b) TCB shall be responsible for all sales, use, and similar taxes
(however described) applicable to the use by TCB of the Global
Portal Platform, in whole or in part. This obligation includes
TCB's paying the sales taxes identified in WWT's invoices
submitted to TCB.
(i) If TCB claims an exemption or exclusion from taxes of
this kind, it shall deliver to WWT a certificate or
letter stating TCB's good-faith belief that its use
of the Global Portal Platform is not, in whole or in
part, subject to those taxes. Whether or nor TCB
delivers that certificate or letter, however, it
shall indemnify WWT, in accordance with Section
14.4(c)(iv),
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against any taxes of this kind assessed or levied
against, or paid by, WWT and any other related
Damages of WWT.
(ii) If WWT receives an assessment from a taxing authority
covering taxes for which TCB is responsible under
this Section 17.2(b), WWT shall Notify TCB of the
assessment and, at TCB's request, timely contest the
assessment. If payment to the taxing authority is
required by law as a condition to protest, TCB shall
timely furnish WWT the required amount for that
payment.
(iii) If TCB believes it has overpaid taxes to WWT for any
of its use of the Global Portal Platform(in whole or
in part), TCB may require WWT to file a claim for a
refund at TCB's expense. If permitted by law, WWT may
assign any right to a refund directly to TCB instead
of filing a refund claim. Any refund of taxes
(including any interest) received by WWT under this
Section 17.2(b)(iii) shall be promptly forwarded to
TCB.
(iv) Before WWT is required to pursue any action requested
by TCB under this Section 17.2(b), WWT may at any
time require TCB to deliver a letter of advice from
outside counsel (selected by TCB) stating that TCB's
tax position is reasonable.
(v) Except as stated in the next sentence, any Dispute
between the Parties regarding the application of any
taxes of this kind to any use of the Global Portal
Platform by TCB (in whole or in part) shall be
resolved by the Dispute Resolution Procedure. Any
Dispute as to the amount of tax (if any) owed to a
taxing authority, including a Dispute between a Party
and the taxing authority, need not be resolved by the
Dispute Resolution Procedure, but may be resolved by
any appropriate administrative or legal procedure
available to a Party or the Parties under this
Agreement apart from the Dispute Resolution
Procedure.
(c) Each Party shall be responsible for all real property,
personal property, and other taxes (however described) based
on its owned or leased property, whether real or personal.
(d) Each Party shall be responsible for all employment-related
taxes (however described) regarding its own employees.
Each Party shall cooperate with any reasonable request of the other
Party to take any reasonable action to avoid or minimize any duplicate
taxes that might be imposed; the requesting Party shall bear in the
expenses of the other Party's compliance.
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ARTICLE 18. COMMUNICATIONS
18.1. FORM. Each Notice (including an Indemnification Claim Notice), request,
response, demand, claim, and other communication required or permitted
under this Agreement shall be in writing and shall be transmitted,
delivered, or sent by: (a) personal delivery, (b) courier or messenger
service, whether overnight or same-day, or (c) certified United States
mail, with postage prepaid and return receipt requested, in each case
addressed to the other Party at the address or number for that Party
set forth in Section 18.2, or at such other address or number as the
recipient has designated by Notice to the other Party in accordance
with this Article 18.
18.2. ADDRESSES. The Parties shall transmit, deliver, or send communications
as follows.
(a) If to WWT: World Wide Technology, Inc.
127 Weldon Parkway
St. Louis, Missouri 63043
Attention: Joe Koenig
(b) If to TCB: telcobuy.com LLC
127 Weldon Parkway
St. Louis, Missouri 63043
Attention: Bob Olwig, Tom Strunk and Jim Kavanaugh
18.3. EFFECTIVENESS. Each communication transmitted, delivered, or sent: in
person, by courier or messenger service, or by certified United States
mail, postage prepaid and return receipt requested, shall be deemed
given, received, and effective on the date delivered to or refused by
the intended recipient (with the return receipt or the equivalent
record of the courier or messenger being deemed conclusive evidence of
delivery or refusal)
ARTICLE 19. ASSIGNMENT
Neither Party may assign any of its rights or delegate any of its
duties or obligations under this Agreement without the other Party's Consent;
this prohibition of assignment and delegation shall include any assignment and
delegation by operation of law (such as merger or consolidation). Any attempted
assignment or delegation without the other Party's Consent shall be void and
without effect. Notwithstanding the foregoing, a Party shall have the right,
without the consent of the other Party, to assign this Agreement to a transferee
of all or substantially all of the business of such Party to which this
Agreement relates.
ARTICLE 20. AMENDMENT AND WAIVER
This Agreement may be amended or modified, and any provision of this
Agreement may be discharged or waived, only by a document signed by the Party
against which the amendment, modification, discharge, or waiver is sought to be
enforced.
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ARTICLE 21. INTEGRATION
This Agreement constitutes the Parties' entire agreement on this
subject; it replaces and supersedes any prior agreement or understanding of the
Parties, whether written o oral, on this subject not expressed or referred to in
this Agreement.
ARTICLE 22. SEVERABILITY
If any part of this Agreement is for any reason found to be
unenforceable, all other parts of this Agreement nevertheless remain
enforceable.
ARTICLE 23. SUCCESSORS
This Agreement binds and inures to the benefit of the Parties and their
respective legal representatives, permitted successors, and permitted assigns.
ARTICLE 24. GOVERNING LAW
This Agreement shall be interpreted or construed under Missouri law.
Likewise, the validity and performance of this Agreement shall be enforced, and
all issues relating to this Agreement shall be resolved, under Missouri law.
Each Party consents to the exclusive personal jurisdiction and venue of the
courts, state and federal, located in St. Louis County, Missouri.
ARTICLE 25. COUNTERPARTS
This Agreement may be signed in any number of counterparts, with the
same effect as if all signatories had signed the same document. All counterparts
shall be construed together to constitute one, and the same, document.
IN WITNESS WHEREOF, the Parties hereto have executed this Licensing
Agreement effective as of the date first above written.
WORLD WIDE TECHNOLOGY, INC.
By /s/ David L. Steward
------------------------------------------
Name: David L. Steward
----------------------------------------
Title: Chief Executive Officer
---------------------------------------
TELCOBUY.COM LLC
By /s/ James P. Kavanaugh
------------------------------------------
Name: James P. Kavanaugh
----------------------------------------
Title: Chief Executive Officer
---------------------------------------
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DEFINITIONAL APPENDIX
TO LICENSING AGREEMENT
A. DEFINED TERMS. In the Agreement, the following terms have the corresponding
meanings:
"AGREEMENT": This Licensing Agreement between WWT and TCB (including the
Definitional Appendix, the Dispute Resolution Appendix, and the Schedules), as
amended or supplemented from time to time in accordance with its terms.
"ARBITRATION RULES": The Rules for Commercial Arbitration of the American
Arbitration Association in effect at the time of an arbitration in accordance
with the Dispute Resolution Procedure.
"BUSINESS DAY": Any Monday through Friday, excluding the holidays observed by
WWT.
"CONFIDENTIAL INFORMATION": Information subject to a duty of confidence and a
restriction on use imposed on one or both Parties under Article 10.
"CONSENT": The prior written consent of a Party (in any capacity) in its sole
discretion.
"CONSULTING SERVICES": As defined in the Management Services Agreement.
"DAMAGES": Losses, claims, obligations, demands, assessments, fines and
penalties (whether civil or criminal), liabilities, expenses and costs
(including reasonable fees and disbursements of legal counsel and accountants),
bodily and other personal injuries, damage to tangible property, and other
damages, of any kind or nature, actually suffered or incurred by a Person.
"Damages":
1. consists only of actual damages;
2. excludes any lost profits, lost income, or lost savings and
any punitive, exemplary, consequential, indirect, special, or
incidental damages (however described), even if the
possibility of those losses or damages was known; and
3. includes (except as may be reduced in accordance with the next
sentence) all fines, penalties, and interest paid or payable
to any Governmental Authority.
If TCB has Damages, for which WWT is liable, consisting of fines, penalties, and
interest paid or payable to a Governmental Authority corresponding to any tax
not timely paid, then those "Damages" shall be reduced by an amount equal to
interest, at the annual rate of 5%, accrued on that tax from the due date until
that tax is paid; for the avoidance of doubt, in this situation "Damages" shall
not include any tax for which TCB would otherwise be liable to the Governmental
Authority. Also for the avoidance of doubt, the "Damages" of a Person shall not
include any lost profits, lost income, or lost savings and any punitive,
exemplary, consequential, indirect, special, or incidental damages (however
described) awarded against that Person in favor or another Person asserting a
Third- Party Claim against that Person.
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"DEFICIENCY": The failure of the Global Portal Platform to satisfy the
applicable warranty of performance stated in Article 9 of the Agreement.
("DEFICIENT" has the correlative meaning).
"DEFINITIONAL APPENDIX": This Definitional Appendix to LICENSING AGREEMENT,
containing definitions and interpretive matters for, as an integral part of, the
Agreement.
"DISPUTE": Any dispute, disagreement, claim, or controversy arising in
connection with or relating to the Agreement, or the validity, interpretation,
performance, breach, or termination of the Agreement, including any claim of
breach of representation or warranty or of nonperformance and any claim
regarding bodily or other personal injury damage to tangible property.
"DISPUTE RESOLUTION APPENDIX": The Dispute Resolution Appendix to Licensing
Agreement, containing the Dispute Resolution Procedure for, as an integral party
of, the Agreement.
"DISPUTE RESOLUTION PROCEDURE": The procedure or process by which a Dispute
shall be resolved in the Dispute Resolution Appendix.
"EFFECTIVE DATE": October 1, 1999, the date on which the Agreement becomes
effective.
"ESCROW AGENT": As defined in Section 6.2 of this Agreement.
"ESCROW AGREEMENT": As defined in Section 6.2 of this Agreement.
"EVENTS OF DEFAULT": As defined in Section 13.1 of this Agreement.
"ENHANCEMENTS": Updates, upgrades, bug fixes, problem corrections, releases,
modifications, enhancements and improvements to the Global Portal Platform made
by WWT.
"GLOBAL PORTAL PLATFORM": the software and related technology [*Confidential
treatment will be requested], together with such Enhancements as are
incorporated therein in accordance with the terms of this Agreement.
"GOVERNMENTAL AUTHORITY": Any federal, state, local, or foreign government or
governmental, quasi-governmental, administrative, or regulatory authority,
agency, body, or entity, including any court of other tribunal.
"INDEMNIFICATION CLAIM": A claim or demand of a Party, on its behalf or on
behalf of one or more of its Indemnified Agents, for Indemnification under
Section 14.4.
"INDEMNIFICATION CLAIM NOTICE": A Notice from the Indemnified Party describing
an Indemnification Claim and the amount or the estimated amount of that
Indemnification Claim to the extent then feasible (though that estimate shall
not be determinative of the final amount of that Indemnification Claim).
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"INDEMNIFICATION RESPONSE PERIOD": The 30 days after an Indemnification Claim
Notice is given during which the Indemnifying Party may investigate and
determine its responsibility or liability for an Indemnification Claim and, if
relating to a Third-Party Claim, Notify the Indemnified Party of the
Indemnifying party's election to defend that Third-Party Claim.
"INDEMNIFIED AGENTS": Collectively, the officers, directors, employees, and
agents of a Party.
"INDEMNIFIED PARTY": A Party entitled to or seeking indemnification, on its own
behalf or on behalf of one or more of its Indemnified Agents, under Section
14.4.
"INDEMNIFYING PARTY": A Party that has or is alleged to have an obligation to
indemnify the other Party in response to an Indemnification Claim.
"INTELLECTUAL PROPERTY RIGHTS": Any and all statutory, common law, treaty,
convention and other non-statutory rights that protect, or are available to
protect, the Global Portal Platform and all intellectual property embodied
therein against unauthorized use or copying in the United State or other
countries, including all rights to recover for damages and profits for past,
present and future infringements thereof, and all rights under licenses,
sub-licenses, assignments, agreements or similar arrangements to use any
intellectual property of third parties.
"LICENSE FEE": The amount of seventy-five thousand dollars ($75,000.00).
"MANAGEMENT SERVICES AGREEMENT": The Management Services Agreement between WWT
and TCB dated as of the Effective Date (including the Definitional Appendix, the
Dispute Resolution Appendix, and the Schedules thereto), as amended or
supplemented from time to time in accordance with its terms.
"NONCONFORMING:" As agreed by the Parties or otherwise determined by the Dispute
Resolution Procedure, that the Global Portal Platform was or is Deficient.
"NOTICE": A written communication complying with Article 18. ("NOTIFY" has the
correlative meaning.)
"PARTIES": Collectively, WWT and TCB. ("PARTY" means either WWT or TCB.)
"PERSON": An individual; a corporation, partnership, limited liability company,
trust, association, or entity of any kind or nature; or a Governmental
Authority.
"PROCEEDINGS": Any action, suit, claim, investigation, demand, audit, or other
proceedings by or before any Governmental Authority or any arbitration
proceedings.
"REASONABLE CONSENT": The prior written consent of a Party (in any capacity),
which may not be unreasonably withheld or delayed.
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"REASONABLE EFFORTS": The efforts of a Party that are commercially reasonable
under the circumstances, which do not require a Party to institute or prosecute
any Proceedings or to pay any Person other than that Party's representatives or
agents.
"REPRESENTATIVES": Collectively, WWT's Representative and TCB's Representative.
[*Confidential treatment will be requested].
"TCB": telcobuy.com LLC, a Delaware limited liability company.
"TCB'S REPRESENTATIVE": The individual agent or representative designated by TCB
to be TCB's formal liaison with or representative to WWT for matters relating to
the Agreement, having the (non-exclusive) authority and responsibility described
in the Agreement.
"TERMINATION DATE": The date on which the Agreement is terminated in accordance
with the terms hereof, without regard to any Transition Period.
"THIRD-PARTY CLAIM": A claim of liability asserted against either Party by a
Person other than the other Party or either Party's Indemnified Agents.
"TRANSITION PERIOD": The maximum 180-day period after the Termination Date
during which WWT shall, as TCB reasonably requests, provide transition
assistance in accordance with Section 13.3.
"WARRANTY PERIOD": A period of 60 days following the completion of the
installation of the Global Portal Platform at the facilities of TCB pursuant to
Article 6.
"WWT": World Wide Technology, Inc., a Missouri corporation.
"WWT BACKGROUND TECHNOLOGY": means any and all business and technical
information and know-how used by WWT in designing, developing, installing and
operating the Global Portal Platform, including, without limitation,
pre-existing development tools, routines, subroutines and other programs, data
and materials included by WWT in the Global Portal Platform, all user manuals
and technical information relating to the Global Portal Platform, including
codes (object and source), program notes, drawings and reproducible copies of
each of the foregoing, magnetic tapes and machine readable codes or other media
reasonably necessary to generate the foregoing; as well as all requirements
stored in any requirements database, test plans, test suites, any existing
documentation detailing software configuration management processes and tools,
existing documentation on customer support procedures and existing documentation
on consulting procedures.
"WWT'S REPRESENTATIVE": The individual agent or representative designated by WWT
to be WWT's formal liaison with or representative to TCB for matters relating to
the Agreement, having the (non-exclusive) authority and responsibility described
in the Agreement.
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"WWT SOURCE CODE": As defined in Section 6.2 of this Agreement.
B. INTERPRETATIVE MATTERS. The Agreement is the result of the Parties'
negotiations, and no provision of the Agreement shall be construed for or
against either Party because of the authorship of that provision. In the
interpretation of the Agreement, except where the context otherwise requires:
1. "including" or "include" does not denote or apply any
limitation;
2. "or" has the inclusive meaning "and/or";
3. "$" refers to United States dollars;
4. the singular includes the plural, and vice versa, and each
gender includes each of the others;
5. captions or headings are only for reference and are not to be
considered in interpreting the Agreement;
6. "Article" and "Section" refer to an Article and Section,
respectively, or the Agreement, unless otherwise stated in the
Agreement; and
7. each reference to a time of day in the Agreement is to local
time in St. Louis, Missouri, and "midnight" begins a day.
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DISPUTE RESOLUTION APPENDIX
TO LICENSING AGREEMENT
A. DEFINED TERMS. Various terms used in this Dispute Resolution Appendix, which
begin with a capital letter, are defined in the Definitional Appendix to
Licensing Agreement. In addition, the following terms used only in this Dispute
Resolution Appendix have the corresponding meanings:
"COMPLEX DISPUTE LIST": The "Complex Dispute List," or if that list is not then
maintained by the American Arbitration Association, another list of individuals
having similar qualifications maintained by the American Arbitration
Association.
"INITIAL EXECUTIVE REVIEW COMMITTEE": A committee consisting of the Vice
President and General Manager of WWT and the Chief Technology Officer of TCB.
"SECOND EXECUTIVE REVIEW COMMITTEE": A committee consisting of the Chief
Executive Officer of WWT and the Chief Financial Officer of TCB.
"QUALIFICATIONS": Inclusion in the Complex Dispute List of having extensive
knowledge or experience, or both, regarding technology similar to the Global
Portal Platform.
The interpretative matters set forth in the Definitional Appendix also apply to
this Dispute Resolution Appendix.
B. DISPUTE RESOLUTION PROCEDURE.
1. GENERAL PROCEDURE. Except as otherwise stated in the Agreement, the Parties
shall resolve all Disputes in accordance with this procedure:
(a) Each Party shall instruct its Representative to promptly
negotiate in good faith with the other Party's Representative
to resolve the Dispute.
(b) If the Representatives do not resolve the Dispute within ten
Business Days (or such longer period as the Representatives
may agree) after the date of referral of the Dispute to them,
the Dispute shall be referred (by either or both of the
Representatives) to the Initial Executive Review Committee for
resolution.
(c) If the Initial Executive Review Committee does not resolve the
Dispute within ten Business Days (or such longer period as
that Committee may agree) from the date of referral to it, the
Dispute shall be referred (by that Committee or any of its
members) to the Second Executive Review Committee for
resolution.
(d) If the Second Executive Review Committee does not resolve the
Dispute within ten Business Days (or such longer period as
that Committee may agree) after the date of referral to it,
either Party may submit the Dispute for resolution by the
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Parties' Presidents, who may submit the Dispute to non-binding
mediation in accordance with Section B.2 of this Dispute
Resolution Appendix.
(e) If the Dispute is not resolved by the parties' Presidents (if
submitted to them) and is not submitted to or resolved by
mediation, then either Party may submit the Dispute to binding
arbitration in accordance with Section B.3 of this Dispute
Resolution Appendix.
A referral under any of Sections B.1(a), B.1(b), and B.1(c) of this
Dispute Resolution Appendix shall be made by written Notice to the
Persons designated in the applicable Section or Sections. That Notice
shall be in a form described in the Agreement or an electronic mail
message and addressed to each Person at his office address or
electronic mail address; each Notice shall be given and effective as
described in the Agreement or, in the case of electronic mail, upon
actual receipt. The date of referral is the last date that Notice is
given to all of the Persons to whom the Dispute must have been
referred.
2. MEDIATION. The mediation of an unresolved Dispute shall be conducted in this
manner:
(a) Either Party may submit the Dispute to mediation by giving
Notice of mediation to the other Party. The Parties shall
attempt to agree upon and appoint a sole mediator who has the
Qualifications promptly after that Notice is given.
(b) If the Parties are unable to agree upon a mediator within ten
days after the date the Dispute is submitted to mediation,
either Party may request the St. Louis office of the American
Arbitration Association to appoint a mediator who has the
Qualifications. The mediator so appointed shall be deemed to
have the Qualifications and to be accepted by the Parties.
(c) The mediation shall be conducted in the St. Louis metropolitan
area at a place and a time agreed by the Parties with the
mediator, or if the Parties cannot agree, as designated by the
mediator. The mediation shall be held within 20 days after the
mediator is appointed.
(d) If either Party has substantial need for information from the
other Party in order to prepare for the mediation, the Parties
shall attempt to agree on procedures for the formal exchange
of information; if the Parties cannot agree, the mediator's
determination shall be effective.
(e) Each Party shall be represented in the mediation by at least
its Representative or another natural Person with authority to
settle the Dispute on behalf of that Party and, if desired by
that Party, by counsel for that Party. The parties'
representatives in the mediation shall continue with the
mediation as long as the mediator requests.
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(f) Unless otherwise agreed by the parties, each Party shall pay
one-half of the mediator's fees and expenses and shall bear
all of its own expenses in connection with the mediation.
Neither Party may employ or use the mediator as a witness,
consultant, expert, or counsel regarding the Dispute or any
related matters.
3. ARBITRATION. The arbitration of an unresolved Dispute shall be conducted in
this manner:
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The
Parties shall attempt to agree upon and appoint a panel of
three arbitrators promptly after that demand is filed. Each of
those arbitrators must have the Qualifications, and at least
one of those arbitrators must be included in the Complex
Dispute List (unless no list of that kind is then maintained).
(b) If the parties are unable to agree upon any or all of the
arbitrators within ten days after the demand for arbitration
was filed (and do not agree to an extension of that ten-day
period), either Party may request the St. Louis office of the
American Arbitration Association to appoint the arbitrator or
arbitrators, who have the Qualifications (and at least one of
whom must be included in the Complex Dispute List, unless no
list of that kind is then maintained), necessary to complete
the panel in accordance with the Arbitration Rules. Each
arbitrator so appointed shall be deemed to have the
Qualifications and to be accepted by the Parties as part of
the panel.
(c) The arbitration shall be conducted in the St. Louis
metropolitan area at a place and a time agreed by the Parties
with the panel, or if the Parties cannot agree, as designated
by the panel. The panel may, however, call and conduct
hearings and meetings at such other places as the Parties may
agree or as the panel may, on the motion of one Party,
determine to be necessary to obtain significant testimony or
evidence.
(d) The Parties shall attempt to agree upon the scope and nature
of any discovery for the arbitration. If the Parties do not
agree, the panel may authorize any and all forms of discovery,
including depositions, interrogatories, and document
production, upon a showing of particularized need that the
requested discovery is likely to lead to material evidence
needed to resolve the Dispute and is not excessive in scope,
timing, or cost.
(e) The arbitration shall be subject to the Federal Arbitration
Act and conducted in accordance with the Arbitration Rules to
the extent they do not conflict with this Section B.3 of this
Dispute Resolution Appendix. The Parties and the panel may,
however, agree to vary the provisions of this Section B.3 of
this Dispute Resolution Appendix or the matters otherwise
governed by the Arbitration Rules.
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(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or
continuance of the Agreement;
(ii) award remedies or relief either expressly prohibited
by the Agreement or under circumstances not permitted
by the Agreement; or
(iii) grant provisional or temporary injunctive relief
before rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to
arbitration at one time shall be consolidated in a single
arbitration proceeding.
(h) A Party or other Person involved in an arbitration under this
Section B.3 may join in that arbitration any Person other than
a Party if:
(i) the Person to be joined agrees to resolve the
particular dispute or controversy in accordance with
this Section B.3 and the other provisions of this
Dispute Resolution Appendix applicable to
arbitration; and
(ii) the panel determines, upon application of the Person
seeking joinder, that the joinder of that other
person will promote the efficiency, expedition, and
consistency of the result of the arbitration and will
not unfairly prejudice any other party to the
arbitration.
(i) The arbitration hearing shall be held within 30 days after the
appointment of the panel. Upon request of either Party, the
panel shall arrange for a transcribed record of the
arbitration hearing, to be made available to both Parties.
(j) The panel's final decision or award shall be made within 30
days after the hearing. That final decision or award shall be
made by unanimous or majority vote or consent of the
arbitrators constituting the panel, and shall be deemed issued
at the place of arbitration. The panel shall issue a reasoned
written final decision or award based on the Agreement and
Missouri law; the panel may not act according to equity and
conscience or as an amicable compounder or apply the law
merchant.
(k) The panel's final decision or award may include:
(i) recovery of Damages to the extent permitted by the
Agreement; or
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(ii) injunctive relief in response to any actual or
threatened breach of the Agreement or any other actual
or threatened action or omission of a Party under or in
connection with the Agreement.
(l) The panel's final decision or award shall be final and binding
upon the Parties, and judgment upon that decision or award may
be entered in any court having jurisdiction over either or
both of the Parties or their respective assets. The Parties
specifically waive any right they may have to apply or appeal
to any court for relief from the preceding sentence or from
any decision of the panel made, or any question of law
arising, before the final decision or award. If any decision
by the panel is vacated for any reason, the Parties shall
submit that Dispute to a new arbitration in accordance with
this Section B.3.
(m) Each Party shall pay one-half of the arbitrators' fees and
expenses, and shall bear all of its own expenses in connection
with the arbitration. The panel has the authority, however, to
award recovery of all costs and fees (including attorneys'
fees, administrative fees and the panel's fees and expenses)
to the prevailing Party in the arbitration.
4. RECOURSE TO COURTS. Nothing in the Dispute Resolution Procedure limits the
right of either Party to apply to a court or other tribunal having jurisdiction
to:
(a) enforce the Dispute Resolution Procedure, including the
agreement to arbitrate in this Dispute Resolution Appendix;
(b) seek provisional or temporary injunctive relief, in response
to an actual or impending breach of Article 10 of the
Agreement or otherwise so as to avoid irreparable damage or
maintain the status quo, until a final arbitration decision or
award is rendered or the Dispute is otherwise resolved; or
(c) challenge or vacate any final arbitration decision or award
that does not comport with Section B.3 of this Dispute
Resolution Appendix.
5. SUBMISSION TO JURISDICTION. Each Party irrevocably submits to the
jurisdiction of the federal courts of the United States and the state courts of
Missouri located in St. Louis County, Missouri. Each Party waives any defense or
challenge to that jurisdiction based on lack of personal jurisdiction, improper
venue, or inconvenience of forum.
6. CONFIDENTIALITY. The proceedings of all negotiations, mediations, and
arbitrations as part of the Dispute Resolution Procedure shall be privately
conducted. The Parties shall keep confidential all conduct, negotiations,
documents, decisions, and awards in connection with those proceedings under the
Dispute Resolution Procedure.
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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EX. 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of the 21st day
of January, 2000 by and between TELCOBUY.COM LLC (the "Company") having its
principal office in St. Louis, Missouri, and JAMES KAVANAUGH, an individual
("Employee").
WHEREAS, Employee desires to be employed by the Company, and the
Company desires to employ Employee, upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the compensation and other benefits
of Employee's employment by the Company and the recitals, mutual covenants and
agreements hereinafter set forth, Employee and the Company agree as follows:
1. Employment Services.
(a) Employee is hereby employed by the Company, and Employee hereby
accepts such employment, upon the terms and conditions hereinafter set forth.
During the Employment Period (as defined below), Employee shall serve as Chief
Executive Officer ("CEO") of the Company.
(b) Employee agrees that, throughout the Employment Period, Employee
shall have such authorities, duties and responsibilities as are customarily
assigned to the CEO of an enterprise like the Company. Such duties,
responsibilities, and authorities shall include, without limitation, but subject
to the authority and directions of the Board of Managers of the Company,
responsibility for the management, operation, strategic direction and overall
conduct of the business of the Company. The Employee shall be assigned no duties
or responsibilities that are materially inconsistent with, or that materially
impair his ability to discharge, the foregoing duties and responsibilities. All
other employees of the Company shall report directly or indirectly to the
Employee and not directly to the Board of Managers or any member. The Employee
may (i) with the consent of the Board of Managers (which shall not be
unreasonably withheld), serve as a director or trustee of other for profit
corporations or businesses which are not in substantial competition with the
Company, (ii) continue to serve as an unpaid consultant and/or advisory director
of World Wide Technology, Inc., (iii) serve on civic or charitable boards or
committees, and (iv) manage personal investments; provided, however, that the
Employee may not engage in any of the activities described in this Section 1(b)
to the extent such activities materially interfere with the performance of
Employee's duties and responsibilities to the Company.
2. Term of Employment. The term of this Employment Agreement (the
"Employment Period") shall commence on January 21, 2000 (the "Effective Date"),
shall end on December 31, 2002 (the "Initial Period"), and shall thereafter
continue from year to year (each an "Annual Extension"), unless sooner
terminated as provided in the second sentence of this Section 2 or in Section 4
hereof. Unless sooner terminated as provided in Section 4 hereof, the Employment
Period may be terminated by either the Company or Employee, at the end of the
Initial Period or an
<PAGE> 2
Annual Extension, if a written notice of nonrenewal is delivered to the other
party at least six (6) months prior to the end of such Initial Period or Annual
Extension, as the case may be.
3. Compensation and Benefits.
(a) Annual Base Salary. During the Employment Period, the Company
shall pay Employee as compensation for his services an initial annual base
salary of $160,000.00 per year. Employee's annual base salary rate shall be
reviewed at least annually for increase (but in no event decrease) in the
discretion of the Compensation Committee and approved by the Board of Managers,
including at least one Investor Manager. The annual base salary shall be paid to
Employee on the regular pay periods established by the Company.
(b) Bonus. In addition to Employee's base compensation, Employee
shall be eligible to earn a bonus upon achievement of such objectives as may be
established from time to time by the Compensation Committee and approved by the
Board of Managers, including at least one Investor Manager. It is the
expectation that the Employee will be eligible to earn a bonus equal to his base
salary upon achievement of such objectives, with greater bonus payments
available if such objectives are exceeded.
(c) Additional Equity Participation. In addition, Employee shall be
entitled to participate in such equity incentive plan as may be approved from
time to time by the Board of Managers, including at least one Investor Manager.
(d) Diminished Opportunity Payment. In the event that, during the
Employment Period, (A) the members or stockholders of the Company approve the
liquidation, dissolution or winding up of the Company or any sale of all or
substantially all of the assets of the Company (other than in connection with
the conversion of the Company into a corporation), or (B) (i) a Change in
Control as described in Article 11 of the Amended and Restated Operating
Agreement (as in effect on the date hereof) shall occur or (ii) any "person," as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (other than any member of the Company on
the date hereof, the Company, any subsidiary of the Company, or any trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any subsidiary of the Company), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 40% or more of the combined voting power
of the Company's then outstanding securities, and, in the case of either clause
(A) or clause (B), the Employee shall be entitled to additional payments if and
to the extent set forth in Section 4.
(e) Life Insurance and other Benefits. The Company, at its sole cost
and expense, shall during the term of this Agreement annually pay all of the
premiums on Employee's $250,000 face value whole life insurance policy with
Connecticut Mutual (Policy Number 6061155). Employee shall pay taxes on the
portion of these premiums which are reported on Employee's Form W-2. Employee
shall be the owner of said life insurance policy. Employee shall not reimburse
the Company for any of said premiums which the Company has prepaid prior to the
termination of Employee's employment hereunder. Employee, within his sole
discretion, may designate the beneficiary or beneficiaries for said policy. The
Company shall also be responsible to
2
<PAGE> 3
make life insurance premium payments as required to maintain the current life
insurance policy in full force and effect, which payments are currently $2410.00
per year, on behalf of Employee, pursuant to the terms of the existing split
dollar agreement between Employee and World Wide Technology, Inc. Should
additional insurance be requested by Employee, the payment of additional
premiums by the Company must be approved by the Board of Managers. For so long
as he is employed by the Company, the Company will pay for Employee's personal
vehicle, which Employee can replace every three (3) years. The payments on the
current vehicle are $566.01 per month (expiring in March of 2000). Employee
shall also receive all other standard employee benefits made available to senior
executives of the company.
(f) Benefits. Employee shall be eligible for all of the Company's
benefits, including participation in any pension or option plan(s), so long as
Employee qualifies under the terms of the plan documents. Subsequent to
termination of Employee's employment, Employee shall have the option to continue
in the Company's benefit plans at his sole cost so long as Employee qualifies
under the terms of the plan documents.
(g) Expenses. The Company agrees to reimburse Employee for those
reasonable expenses incurred by Employee as a result of Employee promoting the
business of the Company, including expenses for entertainment, travel and
similar items upon the presentation by Employee of any itemized account of such
expenses in such detail as to meet IRS requirements for the deduction of such
expenses and said expenses must be ordinary an necessary expenses of the Company
paid or incurred in carrying on the Company's trade or business.
4. Termination of Employment. Prior to the expiration of the Employment
Period, this Agreement and Employee's employment may be terminated as follows:
(a) By the Company, if Employee engages in conduct which gives the
Company cause to discharge him. "Cause" shall be defined as fraud,
misrepresentation, theft, embezzlement, or intentional violation of law or the
Company's policies or willful refusal to follow lawful directives of the Board
of Managers, which violation or willful refusal is not remedied within ten (10)
days after receipt of notice thereof from the Company.
(b) Automatically, upon Employee's death or legal incapacity.
(c) By the Company, upon the Employee's incapacity or inability to
perform the services contemplated by this Agreement for a period of at least one
hundred-eighty (180) days in any three hundred-sixty (360) day period because
his physical or mental health shall have become so impaired as to make it
impossible or impractical to perform the duties and responsibilities
contemplated hereunder.
(d) By the Company, if any of the events described in Section 3(d)
hereof occur.
(e) By Employee, if any of the events described in Section 3(d)
hereof shall occur.
3
<PAGE> 4
(f) By the Company, upon a majority vote of the Board of Managers.
(g) By the Employee for "Good Reason." "Good Reason" shall be
defined as only one or more of the following: (i) a material diminution of the
Employee's responsibilities or authority which is not cured within ten (10) days
after notice thereof from the Employee to the Company, (ii) a reduction in the
compensation which the Employee is entitled to earn, or (iii) relocation of the
Employee without his consent outside of the St. Louis, Missouri metropolitan
area.
5. Effect of Termination of Employment. Upon termination of Employee's
employment and this Agreement, the rights and obligations of the parties
pursuant to Sections 7 through 14 and Sections 16, 17 and 18 shall be
unaffected, but all other rights and obligations of the parties hereunder shall
cease, except:
(a) If the Agreement is terminated pursuant to Section 4(a), all of
the Employee's rights to receive compensation and benefits under this Agreement
shall terminate as of the date of such termination, except as otherwise mandated
by law, and the Employer shall not be entitled to any bonus with respect to the
year in which termination occurs.
(b) If this agreement is terminated pursuant to Section 4(f) or
4(g), the Company shall continue to pay Employee (or his estate), his Annual
Base Salary at the time of termination described in Section 3(a) of this
Agreement for two (2) years, a prorata bonus under Section 3(b) for the period
through the date of termination, and a bonus under Section 3(b) for the twelve
month period following the termination (collectively, "Severance Pay"). The
Severance Pay shall be paid to Employee (or his estate) on the regular pay
periods established by the Company, but at least on a monthly basis, and shall
be subject to withholding and other applicable taxes. Notwithstanding the terms
of any option plan or any equity awards granted to Employee thereunder, all such
options and equity awards outstanding immediately prior to such termination
shall immediately become exercisable. If Employee has been found to have in any
manner breached Section 7 of this Agreement, then the Company's duty to pay any
Severance Pay to Employee under this Section 5(b) of this Agreement shall
terminate from the date on which it is determined that said breach occurred and
Employee shall immediately reimburse the Company for any Severance Pay payments
made by the Company to Employee after the first date on which said breach
occurred.
(c) If this Agreement is terminated pursuant to Section 4(b) or
4(c), Employee (or his estate) shall receive his annual base salary for the
remainder of the calendar year in which such termination occurs (according to
the same payroll practices in effect at the time of termination) and benefits
(as applicable) for the remainder of the year and six months of the following
year. Notwithstanding the terms of any option plan or any equity awards granted
to Employee thereunder, all such options and equity awards outstanding
immediately prior to such termination shall immediately become exercisable.
(d) If this Agreement is terminated pursuant to Section 4(d),
Employee shall receive Severance Pay as provided in Section 5(a).
Notwithstanding the terms of any option plan or equity award granted to Employee
thereunder, all such options and equity awards outstanding immediately prior to
such termination shall immediately become exercisable.
4
<PAGE> 5
(e) If this Agreement is terminated pursuant to Section 4(e), all of
the Employee's rights to receive compensation and benefits under this Agreement
shall terminate as of the date of such termination, except that the Employee
shall be entitled to receive a pro rata bonus through the date of termination
and shall be entitled to receive benefits otherwise mandated by law; provided,
however, that if the Employee continues to provide services under this Agreement
for a period of at least six (6) months following the closing date of an event
described in Section 3(d), and within six(6) months thereafter decides to
terminate his employment, the Employee shall be entitled to receive Severance
Pay.
6. Withholding. All compensation paid to Employee shall be subject to
customary withholding taxes and other employment taxes as required with respect
thereto.
7. Non-Competition and Non-Solicitation Agreement. Employee agrees that
during his employment by the Company and for the period beginning on the date
hereof and ending twenty-four (24) months following expiration or termination of
employment for any reason, Employee will not, as an individual or as a partner,
employee, agent, advisor, consultant or in any other capacity of, or, directly
or indirectly, (i) carry on any business, or own greater than a 10% interest in
any, Internet intensive business that uses the Global Portal Platform or a
company that derives over 50% of its gross revenues or over one hundred million
dollars ($100,000,000.00) from the sale of telecommunications infrastructure
equipment over or through the use of the internet or the world wide web,
anywhere in the United States (the "Territory"), or (ii) solicit or hire, or
engage as a consultant or in any other capacity, any person who was an employee
or officer of the Company at the time of termination of the Employee's
employment, or at any time within six (6) months prior to such termination.
Employee recognizes the broad territorial scope of the covenant above,
but acknowledges and agrees that the restriction is reasonable and enforceable
in view of, among other things, (1) the narrow range of activities prohibited,
(2) the national market in which the Company and its affiliates operate, and (3)
Employee's background, which is such that the restraint will not impose an undue
hardship on Employee.
Employee expressly agrees that the covenant set forth in this Section 7
is reasonable in light of the scope of the business heretofore conducted by the
Company. If any court or tribunal of competent jurisdiction shall refuse to
enforce the foregoing covenant because the time limit applicable thereto is
deemed unreasonable, it is expressly understood and agreed that such covenant
shall not be void, but that for the purpose of such proceedings and in such
jurisdiction, such time limitation shall be deemed reduced to the extent
necessary to permit enforcement of the covenant. If any court or tribunal of
competent jurisdiction shall refuse to enforce the foregoing covenant because it
is more extensive (whether as to geographic area, scope of business or
otherwise) than is deemed reasonable, it is expressly understood and agreed
between the parties hereto that such covenant shall not be void, but that for
the purpose of such proceedings and in such jurisdiction, the restrictions
contained herein (whether as to geographic area, scope of business or otherwise)
shall be deemed reduced to the extent necessary to permit enforcement of the
covenant.
5
<PAGE> 6
Employee further acknowledges and agrees that the damages resulting
from any breach of the foregoing covenant may be intangible in whole or in part
and that the Company is entitled to seek specific enforcement, injunctive relief
and other equitable remedies in addition to monetary damages, and Employee
hereby stipulates to the entering of such injunctive relief prohibiting Employee
from competing with the Company in breach of such covenant.
8. Non-Waiver of Rights. The failure of either party to enforce at any
time any of the provisions of this Agreement or to require at any time
performance by the other party of any of the provisions hereof shall in no way
be construed to be a waiver of such provisions or to affect either the validity
of this Agreement, or any part hereof, or the right of either party thereafter
to enforce each and every provision in accordance with the terms of this
Agreement.
9. Severability and Interpretation. Whenever possible, each provision
of this Agreement and any portion hereof shall be interpreted in such a manner
as to be effective and valid under applicable law, rules and regulations. If any
covenant or other provision of this Agreement (or portion thereof) shall be held
to be invalid, illegal, or incapable of being enforced, by reason of any rule of
law, rule, regulation, administrative order, judicial decision or public policy,
all other conditions and provisions of this Agreement shall, nevertheless,
remain in full force and effect, and no covenant or provision shall be deemed
dependent upon any other covenant or provision (or portion) unless so expressed
herein. The parties hereto desire and consent that the court or other body
making such determination shall, to the extent necessary to avoid any
unenforceability, so reform such covenant or other provision or portions of this
Agreement to the minimum extent necessary so as to render the same enforceable
in accordance with the intent herein expressed.
10. Entire Agreement. This Agreement represents the entire and
integrated Employment Agreement between Employee and the Company and supersedes
all prior negotiations, representations and agreements, either written or oral,
with respect thereto.
11. Notice. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party, by registered or
certified mail, return receipt requested, postage prepaid, or by overnight
courier, addressed to such address as may have been furnished to the other party
in writing. Notices and communications shall be effective at the time they are
given in the foregoing manner (provided that notice by mail shall be deemed
given three business days after posting).
12. Amendments and Waivers. No modification, amendment or waiver of any
of the provisions of this Agreement shall be effective unless in writing
specifically referring hereto, and signed by the parties hereto.
13. Assignments. This Agreement shall be binding upon, and shall inure
to the benefit of the Parties heirs, administrators, executors, successors and
assigns.
14. Arbitration. Except for disputes for which equitable relief is
permitted under this Agreement, any controversy or claim arising out of or
relating to this Agreement, the employment relationship or any breach thereof
between the Company and Employee and any of their agents, employees and
affiliated companies shall be settled by arbitration in accordance with
6
<PAGE> 7
the rules of the America Arbitration Association and judgment upon the award may
be entered in any court having jurisdiction.
15. Headings. Section headings are provided in this Agreement for
convenience only and shall not be deemed to substantively alter the content of
such sections.
16. Indemnification. To the fullest extent permitted by the
indemnification provisions of the operating agreement of the Company in effect
as of the date of this Agreement (collectively, the "Indemnification
Provision"), and in each case subject to the conditions thereof, the Company
shall (i) indemnify the Employee, as an officer or director of the Company if
the Employee shall be serving in such capacity at the Company's written request,
against all liabilities and reasonable expenses that may be incurred by the
Employee in any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, because the Employee is or was an officer or director of the Company
and (ii) pay for or reimburse the reasonable expenses incurred by the Employee
in the defense of any proceeding to which the Employee is a party because the
Employee is or was an officer or director of the Company. The rights of the
Employee under the Indemnification Provision shall survive the termination of
the employment of the Employee by the Company.
17. Non-Disclosure Agreement. Employee shall execute the non-disclosure
agreement attached as Exhibit B.
18. Termination and Release. The Employee acknowledges that the
Employment Agreement dated June 12, 1996, between the Employee and World Wide
Technology, Inc. is terminated as of the date hereof, and that the Employee has
no further rights thereunder.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
/s/ James P. Kavanaugh
-----------------------------------
JAMES P. KAVANAUGH
TELCOBUY.COM LLC
By: /s/ David L. Steward
--------------------------------
Name: David L. Steward
Title: Member of telcobuy.com LLC and Chief
Executive Officer of World Wide Technology
Inc., Majority Member of telcobuy.com LLC.
7
<PAGE> 1
EX. 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of the
21st day of January, 2000 by and between TELCOBUY.COM LLC (the "Company") having
its principal office in St. Louis, Missouri, and TOM STRUNK, an individual
("Employee").
WHEREAS, Employee desires to be employed by the Company, and
the Company desires to employ Employee, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the compensation and other
benefits of Employee's employment by the Company and the recitals, mutual
covenants and agreements hereinafter set forth, Employee and the Company agree
as follows:
1. Employment Services.
(a) Employee is hereby employed by the Company,
and Employee hereby accepts such employment, upon the terms and conditions
hereinafter set forth. During the Employment Period (as defined below), Employee
shall serve as requested and in the discretion of the CEO.
2. Term of Employment. The term of this Employment Agreement
(the "Employment Period") shall commence on January 21, 2000 (the "Effective
Date"), shall end on January 21, 2001 (the "Initial Period"), and shall
thereafter continue from year to year (each an "Annual Extension"), unless
sooner terminated as provided in the second sentence of this Section 2 or in
Section 4 hereof. Unless sooner terminated as provided in Section 4 hereof, the
Employment Period may be terminated by either the Company or Employee, at the
end of the Initial Period or an Annual Extension, if a written notice of
nonrenewal is delivered to the other party at least six (6) months prior to the
end of such Initial Period or Annual Extension, as the case may be.
3. Compensation and Benefits.
(a) Annual Base Salary. During the Employment
Period, the Company shall pay Employee as compensation for his services an
initial annual base salary of $ $100,000 per year. Employee's annual base salary
rate shall be reviewed at least annually for increase (but in no event decrease)
in the discretion of the CEO. The annual base salary shall be paid to Employee
on the regular pay periods established by the Company.
(b) Bonus. In addition to Employee's base
compensation, Employee shall be eligible to earn a bonus upon achievement of
such objectives as may be established from time to time by the CEO. It is the
expectation that the Employee will be eligible to earn a bonus equal to his base
salary upon achievement of such objectives, with greater bonus payments
available if such objectives are exceeded.
<PAGE> 2
(c) Additional Equity Participation. In
addition, Employee shall be entitled to participate in such equity incentive
plan as may be approved from time to time by the Board of Managers.
(d) Benefits. For so long as he is employed
by the Company, the Company will pay for Employee's personal vehicle, which
Employee can replace every three (3) years. The payments on the current vehicle
are $565.00 per month. Employee shall also receive all other standard employee
benefits made available to senior executives of the company. Employee shall be
eligible for all of the Company's benefits, including participation in any
pension or option plan(s), so long as Employee qualifies under the terms of the
plan documents. Subsequent to termination of Employee's employment, Employee
shall have the option to continue in the Company's benefit plans at his sole
cost so long as Employee qualifies under the terms of the plan documents.
(e) Expenses. The Company agrees to reimburse
Employee for those reasonable expenses incurred by Employee as a result of
Employee promoting the business of the Company, including expenses for
entertainment, travel and similar items upon the presentation by Employee of any
itemized account of such expenses in such detail as to meet IRS requirements for
the deduction of such expenses and said expenses must be ordinary and necessary
expenses of the Company paid or incurred in carrying on the Company's trade or
business.
4. Termination of Employment. Prior to the expiration
of the Employment Period, this Agreement and Employee's employment may be
terminated as follows:
(a) By the Company, if Employee engages in
conduct which gives the Company cause to discharge him. "Cause" shall be defined
as fraud, misrepresentation, theft, embezzlement, or intentional violation of
law or the Company's policies or willful refusal to follow lawful directives of
the CEO or the Board of Managers, which violation or willful refusal is not
remedied within ten (10) days after receipt of notice thereof from the Company.
(b) Automatically, upon Employee's death or
legal incapacity.
(c) By the Company, upon the Employee's
incapacity or inability to perform the services contemplated by this Agreement
for a period of at least one hundred-eighty (180) days in any three
hundred-sixty (360) day period because his physical or mental health shall have
become so impaired as to make it impossible or impractical to perform the duties
and responsibilities contemplated hereunder.
(d) By the Company, at the discretion of the
CEO or upon a majority vote of the Board of Managers.
5. Effect of Termination of Employment. Upon termination of
Employee's employment and this Agreement, the rights and obligations of the
parties pursuant to Sections 7 through 14 and Sections 16 and 17 shall be
unaffected, but all other rights and obligations of the parties hereunder shall
cease, except:
2
<PAGE> 3
(a) If the Agreement is terminated pursuant to
Section 4(a), all of the Employee's rights to receive compensation and benefits
under this Agreement shall terminate as of the date of such termination, except
as otherwise mandated by law, and the Employee shall not be entitled to any
bonus with respect to the year in which termination occurs.
(b) If this agreement is terminated pursuant to
Section 4(d), the Company shall continue to pay Employee (or his estate), his
Annual Base Salary at the time of termination described in Section 3(a) of this
Agreement for one (1) year, a pro rata bonus under Section 3(b) for the period
through the date of termination, and a bonus under Section 3(b) for the twelve
month period following the termination (collectively, "Severance Pay"). The
Severance Pay shall be paid to Employee (or his estate) on the regular pay
periods established by the Company, but at least on a monthly basis, and shall
be subject to withholding and other applicable taxes. Notwithstanding the terms
of any option plan or any equity awards granted to Employee thereunder, all such
options and equity awards outstanding immediately prior to such termination
shall immediately become exercisable. If Employee has been found to have in any
manner breached Section 7 of this Agreement, then the Company's duty to pay any
Severance Pay to Employee under this Section 5(b) of this Agreement shall
terminate from the date on which it is determined that said breach occurred and
Employee shall immediately reimburse the Company for any Severance Pay payments
made by the Company to Employee after the first date on which said breach
occurred.
(c) If this Agreement is terminated pursuant to
Section 4(b) or 4(c), Employee (or his estate) shall receive his annual base
salary for the remainder of the calendar year in which such termination occurs
(according to the same payroll practices in effect at the time of termination)
and benefits (as applicable) for the remainder of the year and six months of the
following year. Notwithstanding the terms of any option plan or any equity
awards granted to Employee thereunder, all such options and equity awards
outstanding immediately prior to such termination shall immediately become
exercisable.
6. Withholding. All compensation paid to Employee
shall be subject to customary withholding taxes and other employment taxes as
required with respect thereto.
7. Non-Competition and Non-Solicitation Agreement. Employee
agrees that during his employment by the Company and for the period beginning on
the date hereof and ending twelve (12) months following expiration or
termination of employment for any reason, Employee will not, as an individual or
as a partner, employee, agent, advisor, consultant or in any other capacity of,
or, directly or indirectly, (i) carry on any business, or own greater than a 10%
interest in any, Internet intensive business that uses the Global Portal
Platform or a company that derives over 50% of its gross revenues or over one
hundred million dollars ($100,000,000.00) from the sale of telecommunications
infrastructure equipment over or through the use of the internet or the world
wide web, anywhere in the United States (the "Territory"), or (ii) solicit or
hire, or engage as a consultant or in any other capacity, any person who was an
employee or officer of the Company at the time of termination of the Employee's
employment, or at any time within six (6) months prior to such termination.
3
<PAGE> 4
Employee recognizes the broad territorial scope of the
covenant above, but acknowledges and agrees that the restriction is reasonable
and enforceable in view of, among other things, (1) the narrow range of
activities prohibited, (2) the national market in which the Company and its
affiliates operate, and (3) Employee's background, which is such that the
restraint will not impose an undue hardship on Employee.
Employee expressly agrees that the covenant set forth in this
Section 7 is reasonable in light of the scope of the business heretofore
conducted by the Company. If any court or tribunal of competent jurisdiction
shall refuse to enforce the foregoing covenant because the time limit applicable
thereto is deemed unreasonable, it is expressly understood and agreed that such
covenant shall not be void, but that for the purpose of such proceedings and in
such jurisdiction, such time limitation shall be deemed reduced to the extent
necessary to permit enforcement of the covenant. If any court or tribunal of
competent jurisdiction shall refuse to enforce the foregoing covenant because it
is more extensive (whether as to geographic area, scope of business or
otherwise) than is deemed reasonable, it is expressly understood and agreed
between the parties hereto that such covenant shall not be void, but that for
the purpose of such proceedings and in such jurisdiction, the restrictions
contained herein (whether as to geographic area, scope of business or otherwise)
shall be deemed reduced to the extent necessary to permit enforcement of the
covenant.
Employee further acknowledges and agrees that the damages
resulting from any breach of the foregoing covenant may be intangible in whole
or in part and that the Company is entitled to seek specific enforcement,
injunctive relief and other equitable remedies in addition to monetary damages,
and Employee hereby stipulates to the entering of such injunctive relief
prohibiting Employee from competing with the Company in breach of such covenant.
8. Non-Waiver of Rights. The failure of either party to
enforce at any time any of the provisions of this Agreement or to require at any
time performance by the other party of any of the provisions hereof shall in no
way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement, or any part hereof, or the right of either party
thereafter to enforce each and every provision in accordance with the terms of
this Agreement.
9. Severability and Interpretation. Whenever possible, each
provision of this Agreement and any portion hereof shall be interpreted in such
a manner as to be effective and valid under applicable law, rules and
regulations. If any covenant or other provision of this Agreement (or portion
thereof) shall be held to be invalid, illegal, or incapable of being enforced,
by reason of any rule of law, rule, regulation, administrative order, judicial
decision or public policy, all other conditions and provisions of this Agreement
shall, nevertheless, remain in full force and effect, and no covenant or
provision shall be deemed dependent upon any other covenant or provision (or
portion) unless so expressed herein. The parties hereto desire and consent that
the court or other body making such determination shall, to the extent necessary
to avoid any unenforceability, so reform such covenant or other provision or
portions of this Agreement to the minimum extent necessary so as to render the
same enforceable in accordance with the intent herein expressed.
4
<PAGE> 5
10. Entire Agreement. This Agreement represents the
entire and integrated Employment Agreement between Employee and the Company and
supersedes all prior negotiations, representations and agreements, either
written or oral, with respect thereto.
11. Notice. All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party, by registered or certified mail, return receipt requested, postage
prepaid, or by overnight courier, addressed to such address as may have been
furnished to the other party in writing. Notices and communications shall be
effective at the time they are given in the foregoing manner (provided that
notice by mail shall be deemed given three business days after posting).
12. Amendments and Waivers. No modification, amendment
or waiver of any of the provisions of this Agreement shall be effective unless
in writing specifically referring hereto, and signed by the parties hereto.
13. Assignments. This Agreement shall be binding upon,
and shall inure to the benefit of the Parties heirs, administrators, executors,
successors and assigns.
14. Arbitration. Except for disputes for which equitable
relief is permitted under this Agreement, any controversy or claim arising out
of or relating to this Agreement, the employment relationship or any breach
thereof between the Company and Employee and any of their agents, employees and
affiliated companies shall be settled by arbitration in accordance with the
rules of the America Arbitration Association and judgment upon the award may be
entered in any court having jurisdiction.
15. Headings. Section headings are provided in this
Agreement for convenience only and shall not be deemed to substantively alter
the content of such sections.
16. Indemnification. To the fullest extent permitted by
the indemnification provisions of the operating agreement of the Company in
effect as of the date of this Agreement (collectively, the "Indemnification
Provision"), and in each case subject to the conditions thereof, the Company
shall (i) indemnify the Employee, as an officer or director of the Company if
the Employee shall be serving in such capacity at the Company's written request,
against all liabilities and reasonable expenses that may be incurred by the
Employee in any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, because the Employee is or was an officer or director of the Company
and (ii) pay for or reimburse the reasonable expenses incurred by the Employee
in the defense of any proceeding to which the Employee is a party because the
Employee is or was an officer or director of the Company. The rights of the
Employee under the Indemnification Provision shall survive the termination of
the employment of the Employee by the Company.
17. Non-Disclosure Agreement. Employee shall execute
the non-disclosure agreement attached as Exhibit A.
5
<PAGE> 6
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
/s/ Tom Strunk
-----------------------------------
TOM STRUNK
TELCOBUY.COM LLC
By: /s/ James P. Kavanaugh
--------------------------------
Name: James P. Kavanaugh
Title: Chief Executive Officer
6
<PAGE> 1
EX. 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of the
21st day of January, 2000 by and between TELCOBUY.COM LLC (the "Company")
having its principal office in St. Louis, Missouri, and MARK J. CATALANO, an
individual ("Employee").
WHEREAS, Employee desires to be employed by the Company, and
the Company desires to employ Employee, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the compensation and other
benefits of Employee's employment by the Company and the recitals, mutual
covenants and agreements hereinafter set forth, Employee and the Company agree
as follows:
1. Employment Services.
(a) Employee is hereby employed by the Company,
and Employee hereby accepts such employment, upon the terms and conditions
hereinafter set forth. During the Employment Period (as defined below), Employee
shall serve as requested and in the discretion of the CEO.
2. Term of Employment. The term of this Employment
Agreement (the "Employment Period") shall commence on January 21, 2000
(the "Effective Date"), shall end on January 21, 2001 (the "Initial Period"),
and shall thereafter continue from year to year (each an "Annual Extension"),
unless sooner terminated as provided in the second sentence of this Section 2 or
in Section 4 hereof. Unless sooner terminated as provided in Section 4 hereof,
the Employment Period may be terminated by either the Company or Employee, at
the end of the Initial Period or an Annual Extension, if a written notice of
nonrenewal is delivered to the other party at least six (6) months prior to the
end of such Initial Period or Annual Extension, as the case may be.
3. Compensation and Benefits.
(a) Annual Base Salary. During the Employment
Period, the Company shall pay Employee as compensation for his services an
initial annual base salary of $140,000 per year. Employee's annual base
salary rate shall be reviewed at least annually for increase (but in no event
decrease) in the discretion of the CEO. The annual base salary shall be paid to
Employee on the regular pay periods established by the Company.
(b) Bonus. In addition to Employee's base
compensation, Employee shall be eligible to earn a bonus upon achievement of
such objectives as may be established from time to time by the CEO. It is the
expectation that the Employee will be eligible to earn a bonus equal to his base
salary upon achievement of such objectives, with greater bonus payments
available if such objectives are exceeded.
<PAGE> 2
(c) Additional Equity Participation. In
addition, Employee shall be entitled to participate in such equity incentive
plan as may be approved from time to time by the Board of Managers.
(d) Benefits. For so long as he is employed by
the Company, the Company will pay for Employee's personal vehicle, which
Employee can replace every three (3) years. The payments on the current vehicle
are $537.00 per month. Employee shall also receive all other standard employee
benefits made available to senior executives of the company. Employee shall be
eligible for all of the Company's benefits, including participation in any
pension or option plan(s), so long as Employee qualifies under the terms of the
plan documents. Subsequent to termination of Employee's employment, Employee
shall have the option to continue in the Company's benefit plans at his sole
cost so long as Employee qualifies under the terms of the plan documents.
(e) Expenses. The Company agrees to reimburse
Employee for those reasonable expenses incurred by Employee as a result of
Employee promoting the business of the Company, including expenses for
entertainment, travel and similar items upon the presentation by Employee of any
itemized account of such expenses in such detail as to meet IRS requirements for
the deduction of such expenses and said expenses must be ordinary and necessary
expenses of the Company paid or incurred in carrying on the Company's trade or
business.
4. Termination of Employment. Prior to the expiration
of the Employment Period, this Agreement and Employee's employment may be
terminated as follows:
(a) By the Company, if Employee engages in
conduct which gives the Company cause to discharge him. "Cause" shall be defined
as fraud, misrepresentation, theft, embezzlement, or intentional violation of
law or the Company's policies or willful refusal to follow lawful directives of
the CEO or the Board of Managers, which violation or willful refusal is not
remedied within ten (10) days after receipt of notice thereof from the Company.
(b) Automatically, upon Employee's death or
legal incapacity.
(c) By the Company, upon the Employee's
incapacity or inability to perform the services contemplated by this Agreement
for a period of at least one hundred-eighty (180) days in any three
hundred-sixty (360) day period because his physical or mental health shall have
become so impaired as to make it impossible or impractical to perform the duties
and responsibilities contemplated hereunder.
(d) By the Company, at the discretion of the
CEO or upon a majority vote of the Board of Managers.
5. Effect of Termination of Employment. Upon termination
of Employee's employment and this Agreement, the rights and obligations of the
parties pursuant to Sections 7 through 14 and Sections 16 and 17 shall be
unaffected, but all other rights and obligations of the parties hereunder shall
cease, except:
2
<PAGE> 3
(a) If the Agreement is terminated pursuant to
Section 4(a), all of the Employee's rights to receive compensation and benefits
under this Agreement shall terminate as of the date of such termination, except
as otherwise mandated by law, and the Employee shall not be entitled to any
bonus with respect to the year in which termination occurs.
(b) If this agreement is terminated pursuant to
Section 4(d), the Company shall continue to pay Employee (or his estate), his
Annual Base Salary at the time of termination described in Section 3(a) of this
Agreement for one (1) year, a pro rata bonus under Section 3(b) for the period
through the date of termination, and a bonus under Section 3(b) for the twelve
month period following the termination (collectively, "Severance Pay"). The
Severance Pay shall be paid to Employee (or his estate) on the regular pay
periods established by the Company, but at least on a monthly basis, and shall
be subject to withholding and other applicable taxes. Notwithstanding the terms
of any option plan or any equity awards granted to Employee thereunder, all such
options and equity awards outstanding immediately prior to such termination
shall immediately become exercisable. If Employee has been found to have in any
manner breached Section 7 of this Agreement, then the Company's duty to pay any
Severance Pay to Employee under this Section 5(b) of this Agreement shall
terminate from the date on which it is determined that said breach occurred and
Employee shall immediately reimburse the Company for any Severance Pay payments
made by the Company to Employee after the first date on which said breach
occurred.
(c) If this Agreement is terminated pursuant to
Section 4(b) or 4(c), Employee (or his estate) shall receive his annual base
salary for the remainder of the calendar year in which such termination occurs
(according to the same payroll practices in effect at the time of termination)
and benefits (as applicable) for the remainder of the year and six months of the
following year. Notwithstanding the terms of any option plan or any equity
awards granted to Employee thereunder, all such options and equity awards
outstanding immediately prior to such termination shall immediately become
exercisable.
6. Withholding. All compensation paid to Employee shall
be subject to customary withholding taxes and other employment taxes as required
with respect thereto.
7. Non-Competition and Non-Solicitation Agreement.
Employee agrees that during his employment by the Company and for the period
beginning on the date hereof and ending twelve (12) months following expiration
or termination of employment for any reason, Employee will not, as an individual
or as a partner, employee, agent, advisor, consultant or in any other capacity
of, or, directly or indirectly, (i) carry on any business, or own greater than a
10% interest in any, Internet intensive business that uses the Global Portal
Platform or a company that derives over 50% of its gross revenues or over one
hundred million dollars ($100,000,000.00) from the sale of telecommunications
infrastructure equipment over or through the use of the internet or the world
wide web, anywhere in the United States (the "Territory"), or (ii) solicit or
hire, or engage as a consultant or in any other capacity, any person who was an
employee or officer of the Company at the time of termination of the Employee's
employment, or at any time within six (6) months prior to such termination.
3
<PAGE> 4
Employee recognizes the broad territorial scope of the
covenant above, but acknowledges and agrees that the restriction is reasonable
and enforceable in view of, among other things, (1) the narrow range of
activities prohibited, (2) the national market in which the Company and its
affiliates operate, and (3) Employee's background, which is such that the
restraint will not impose an undue hardship on Employee.
Employee expressly agrees that the covenant set forth in this
Section 7 is reasonable in light of the scope of the business heretofore
conducted by the Company. If any court or tribunal of competent jurisdiction
shall refuse to enforce the foregoing covenant because the time limit applicable
thereto is deemed unreasonable, it is expressly understood and agreed that such
covenant shall not be void, but that for the purpose of such proceedings and in
such jurisdiction, such time limitation shall be deemed reduced to the extent
necessary to permit enforcement of the covenant. If any court or tribunal of
competent jurisdiction shall refuse to enforce the foregoing covenant because it
is more extensive (whether as to geographic area, scope of business or
otherwise) than is deemed reasonable, it is expressly understood and agreed
between the parties hereto that such covenant shall not be void, but that for
the purpose of such proceedings and in such jurisdiction, the restrictions
contained herein (whether as to geographic area, scope of business or otherwise)
shall be deemed reduced to the extent necessary to permit enforcement of the
covenant.
Employee further acknowledges and agrees that the damages
resulting from any breach of the foregoing covenant may be intangible in whole
or in part and that the Company is entitled to seek specific enforcement,
injunctive relief and other equitable remedies in addition to monetary damages,
and Employee hereby stipulates to the entering of such injunctive relief
prohibiting Employee from competing with the Company in breach of such covenant.
8. Non-Waiver of Rights. The failure of either party to
enforce at any time any of the provisions of this Agreement or to require at any
time performance by the other party of any of the provisions hereof shall in no
way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement, or any part hereof, or the right of either party
thereafter to enforce each and every provision in accordance with the terms of
this Agreement.
9. Severability and Interpretation. Whenever possible,
each provision of this Agreement and any portion hereof shall be interpreted in
such a manner as to be effective and valid under applicable law, rules and
regulations. If any covenant or other provision of this Agreement (or portion
thereof) shall be held to be invalid, illegal, or incapable of being enforced,
by reason of any rule of law, rule, regulation, administrative order, judicial
decision or public policy, all other conditions and provisions of this Agreement
shall, nevertheless, remain in full force and effect, and no covenant or
provision shall be deemed dependent upon any other covenant or provision (or
portion) unless so expressed herein. The parties hereto desire and consent that
the court or other body making such determination shall, to the extent necessary
to avoid any unenforceability, so reform such covenant or other provision or
portions of this Agreement to the minimum extent necessary so as to render the
same enforceable in accordance with the intent herein expressed.
4
<PAGE> 5
10. Entire Agreement. This Agreement represents the
entire and integrated Employment Agreement between Employee and the Company and
supersedes all prior negotiations, representations and agreements, either
written or oral, with respect thereto.
11. Notice. All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party, by registered or certified mail, return receipt requested, postage
prepaid, or by overnight courier, addressed to such address as may have been
furnished to the other party in writing. Notices and communications shall be
effective at the time they are given in the foregoing manner (provided that
notice by mail shall be deemed given three business days after posting).
12. Amendments and Waivers. No modification, amendment
or waiver of any of the provisions of this Agreement shall be effective unless
in writing specifically referring hereto, and signed by the parties hereto.
13. Assignments. This Agreement shall be binding upon,
and shall inure to the benefit of the Parties heirs, administrators, executors,
successors and assigns.
14. Arbitration. Except for disputes for which equitable
relief is permitted under this Agreement, any controversy or claim arising out
of or relating to this Agreement, the employment relationship or any breach
thereof between the Company and Employee and any of their agents, employees and
affiliated companies shall be settled by arbitration in accordance with the
rules of the America Arbitration Association and judgment upon the award may be
entered in any court having jurisdiction.
15. Headings. Section headings are provided in this
Agreement for convenience only and shall not be deemed to substantively alter
the content of such sections.
16. Indemnification. To the fullest extent permitted by
the indemnification provisions of the operating agreement of the Company in
effect as of the date of this Agreement (collectively, the "Indemnification
Provision"), and in each case subject to the conditions thereof, the Company
shall (i) indemnify the Employee, as an officer or director of the Company if
the Employee shall be serving in such capacity at the Company's written request,
against all liabilities and reasonable expenses that may be incurred by the
Employee in any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, because the Employee is or was an officer or director of the Company
and (ii) pay for or reimburse the reasonable expenses incurred by the Employee
in the defense of any proceeding to which the Employee is a party because the
Employee is or was an officer or director of the Company. The rights of the
Employee under the Indemnification Provision shall survive the termination of
the employment of the Employee by the Company.
17. Non-Disclosure Agreement. Employee shall execute
the non-disclosure agreement attached as Exhibit A.
5
<PAGE> 6
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
/s/ Mark J. Catalano
-----------------------------------
Mark J. Catalano
TELCOBUY.COM LLC
By: /s/ James P. Kavanaugh
--------------------------------
Name: James P. Kavanaugh
Title: Chief Executive Officer
6
<PAGE> 1
EX. 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of the 21st
day of January, 2000 by and between TELCOBUY.COM LLC (the "Company") having its
principal office in St. Louis, Missouri, and ROBERT M. OLWIG, an individual
("Employee").
WHEREAS, Employee desires to be employed by the Company, and the
Company desires to employ Employee, upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the compensation and other benefits
of Employee's employment by the Company and the recitals, mutual covenants and
agreements hereinafter set forth, Employee and the Company agree as follows:
1. Employment Services.
(a) Employee is hereby employed by the Company, and Employee hereby
accepts such employment, upon the terms and conditions hereinafter set forth.
During the Employment Period (as defined below), Employee shall serve as
requested and in the discretion of the CEO.
2. Term of Employment. The term of this Employment Agreement (the
"Employment Period") shall commence on January 21, 2000 (the "Effective Date"),
shall end on January 21, 2001 (the "Initial Period"), and shall thereafter
continue from year to year (each an "Annual Extension"), unless sooner
terminated as provided in the second sentence of this Section 2 or in Section 4
hereof. Unless sooner terminated as provided in Section 4 hereof, the Employment
Period may be terminated by either the Company or Employee, at the end of the
Initial Period or an Annual Extension, if a written notice of nonrenewal is
delivered to the other party at least six (6) months prior to the end of such
Initial Period or Annual Extension, as the case may be.
3. Compensation and Benefits.
(a) Annual Base Salary. During the Employment Period, the Company
shall pay Employee as compensation for his services an initial annual base
salary of $90,000 per year. Employee's annual base salary rate shall be
reviewed at least annually for increase (but in no event decrease) in the
discretion of the CEO. The annual base salary shall be paid to Employee on the
regular pay periods established by the Company.
(b) Bonus. In addition to Employee's base compensation, Employee
shall be eligible to earn a bonus upon achievement of such objectives as may be
established from time to time by the CEO. It is the expectation that the
Employee will be eligible to earn a bonus equal to his base salary upon
achievement of such objectives, with greater bonus payments available if such
objectives are exceeded.
<PAGE> 2
(c) Additional Equity Participation. In addition, Employee shall be
entitled to participate in such equity incentive plan as may be approved from
time to time by the Board of Managers.
(d) Benefits. For so long as he is employed by the Company, the
Company will pay for Employee's personal vehicle, which Employee can replace
every three (3) years. The payments on the current vehicle are $______ per
month. Employee shall also receive all other standard employee benefits made
available to senior executives of the company. Employee shall be eligible for
all of the Company's benefits, including participation in any pension or option
plan(s), so long as Employee qualifies under the terms of the plan documents.
Subsequent to termination of Employee's employment, Employee shall have the
option to continue in the Company's benefit plans at his sole cost so long as
Employee qualifies under the terms of the plan documents.
(e) Expenses. The Company agrees to reimburse Employee for those
reasonable expenses incurred by Employee as a result of Employee promoting the
business of the Company, including expenses for entertainment, travel and
similar items upon the presentation by Employee of any itemized account of such
expenses in such detail as to meet IRS requirements for the deduction of such
expenses and said expenses must be ordinary and necessary expenses of the
Company paid or incurred in carrying on the Company's trade or business.
4. Termination of Employment. Prior to the expiration of the Employment
Period, this Agreement and Employee's employment may be terminated as follows:
(a) By the Company, if Employee engages in conduct which gives the
Company cause to discharge him. "Cause" shall be defined as fraud,
misrepresentation, theft, embezzlement, or intentional violation of law or the
Company's policies or willful refusal to follow lawful directives of the CEO or
the Board of Managers, which violation or willful refusal is not remedied within
ten (10) days after receipt of notice thereof from the Company.
(b) Automatically, upon Employee's death or legal incapacity.
(c) By the Company, upon the Employee's incapacity or inability to
perform the services contemplated by this Agreement for a period of at least one
hundred-eighty (180) days in any three hundred-sixty (360) day period because
his physical or mental health shall have become so impaired as to make it
impossible or impractical to perform the duties and responsibilities
contemplated hereunder.
(d) By the Company, at the discretion of the CEO or upon a majority
vote of the Board of Managers.
5. Effect of Termination of Employment. Upon termination of Employee's
employment and this Agreement, the rights and obligations of the parties
pursuant to Sections 7 through 14 and Sections 16 and 17 shall be unaffected,
but all other rights and obligations of the parties hereunder shall cease,
except:
2
<PAGE> 3
(a) If the Agreement is terminated pursuant to Section 4(a), all of
the Employee's rights to receive compensation and benefits under this Agreement
shall terminate as of the date of such termination, except as otherwise mandated
by law, and the Employee shall not be entitled to any bonus with respect to the
year in which termination occurs.
(b) If this agreement is terminated pursuant to Section 4(d), the
Company shall continue to pay Employee (or his estate), his Annual Base Salary
at the time of termination described in Section 3(a) of this Agreement for one
(1) year, a pro rata bonus under Section 3(b) for the period through the date of
termination, and a bonus under Section 3(b) for the twelve month period
following the termination (collectively, "Severance Pay"). The Severance Pay
shall be paid to Employee (or his estate) on the regular pay periods established
by the Company, but at least on a monthly basis, and shall be subject to
withholding and other applicable taxes. Notwithstanding the terms of any option
plan or any equity awards granted to Employee thereunder, all such options and
equity awards outstanding immediately prior to such termination shall
immediately become exercisable. If Employee has been found to have in any manner
breached Section 7 of this Agreement, then the Company's duty to pay any
Severance Pay to Employee under this Section 5(b) of this Agreement shall
terminate from the date on which it is determined that said breach occurred and
Employee shall immediately reimburse the Company for any Severance Pay payments
made by the Company to Employee after the first date on which said breach
occurred.
(c) If this Agreement is terminated pursuant to Section 4(b) or
4(c), Employee (or his estate) shall receive his annual base salary for the
remainder of the calendar year in which such termination occurs (according to
the same payroll practices in effect at the time of termination) and benefits
(as applicable) for the remainder of the year and six months of the following
year. Notwithstanding the terms of any option plan or any equity awards granted
to Employee thereunder, all such options and equity awards outstanding
immediately prior to such termination shall immediately become exercisable.
6. Withholding. All compensation paid to Employee shall be subject to
customary withholding taxes and other employment taxes as required with respect
thereto.
7. Non-Competition and Non-Solicitation Agreement. Employee agrees that
during his employment by the Company and for the period beginning on the date
hereof and ending twelve (12) months following expiration or termination of
employment for any reason, Employee will not, as an individual or as a partner,
employee, agent, advisor, consultant or in any other capacity of, or, directly
or indirectly, (i) carry on any business, or own greater than a 10% interest in
any, Internet intensive business that uses the Global Portal Platform or a
company that derives over 50% of its gross revenues or over one hundred million
dollars ($100,000,000.00) from the sale of telecommunications infrastructure
equipment over or through the use of the internet or the world wide web,
anywhere in the United States (the "Territory"), or (ii) solicit or hire, or
engage as a consultant or in any other capacity, any person who was an employee
or officer of the Company at the time of termination of the Employee's
employment, or at any time within six (6) months prior to such termination.
3
<PAGE> 4
Employee recognizes the broad territorial scope of the covenant above,
but acknowledges and agrees that the restriction is reasonable and enforceable
in view of, among other things, (1) the narrow range of activities prohibited,
(2) the national market in which the Company and its affiliates operate, and (3)
Employee's background, which is such that the restraint will not impose an undue
hardship on Employee.
Employee expressly agrees that the covenant set forth in this Section 7
is reasonable in light of the scope of the business heretofore conducted by the
Company. If any court or tribunal of competent jurisdiction shall refuse to
enforce the foregoing covenant because the time limit applicable thereto is
deemed unreasonable, it is expressly understood and agreed that such covenant
shall not be void, but that for the purpose of such proceedings and in such
jurisdiction, such time limitation shall be deemed reduced to the extent
necessary to permit enforcement of the covenant. If any court or tribunal of
competent jurisdiction shall refuse to enforce the foregoing covenant because it
is more extensive (whether as to geographic area, scope of business or
otherwise) than is deemed reasonable, it is expressly understood and agreed
between the parties hereto that such covenant shall not be void, but that for
the purpose of such proceedings and in such jurisdiction, the restrictions
contained herein (whether as to geographic area, scope of business or otherwise)
shall be deemed reduced to the extent necessary to permit enforcement of the
covenant.
Employee further acknowledges and agrees that the damages resulting
from any breach of the foregoing covenant may be intangible in whole or in part
and that the Company is entitled to seek specific enforcement, injunctive relief
and other equitable remedies in addition to monetary damages, and Employee
hereby stipulates to the entering of such injunctive relief prohibiting Employee
from competing with the Company in breach of such covenant.
8. Non-Waiver of Rights. The failure of either party to enforce at any
time any of the provisions of this Agreement or to require at any time
performance by the other party of any of the provisions hereof shall in no way
be construed to be a waiver of such provisions or to affect either the validity
of this Agreement, or any part hereof, or the right of either party thereafter
to enforce each and every provision in accordance with the terms of this
Agreement.
9. Severability and Interpretation. Whenever possible, each provision
of this Agreement and any portion hereof shall be interpreted in such a manner
as to be effective and valid under applicable law, rules and regulations. If any
covenant or other provision of this Agreement (or portion thereof) shall be held
to be invalid, illegal, or incapable of being enforced, by reason of any rule of
law, rule, regulation, administrative order, judicial decision or public policy,
all other conditions and provisions of this Agreement shall, nevertheless,
remain in full force and effect, and no covenant or provision shall be deemed
dependent upon any other covenant or provision (or portion) unless so expressed
herein. The parties hereto desire and consent that the court or other body
making such determination shall, to the extent necessary to avoid any
unenforceability, so reform such covenant or other provision or portions of this
Agreement to the minimum extent necessary so as to render the same enforceable
in accordance with the intent herein expressed.
4
<PAGE> 5
10. Entire Agreement. This Agreement represents the entire and
integrated Employment Agreement between Employee and the Company and supersedes
all prior negotiations, representations and agreements, either written or oral,
with respect thereto.
11. Notice. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party, by registered or
certified mail, return receipt requested, postage prepaid, or by overnight
courier, addressed to such address as may have been furnished to the other party
in writing. Notices and communications shall be effective at the time they are
given in the foregoing manner (provided that notice by mail shall be deemed
given three business days after posting).
12. Amendments and Waivers. No modification, amendment or waiver of any
of the provisions of this Agreement shall be effective unless in writing
specifically referring hereto, and signed by the parties hereto.
13. Assignments. This Agreement shall be binding upon, and shall inure
to the benefit of the Parties heirs, administrators, executors, successors and
assigns.
14. Arbitration. Except for disputes for which equitable relief is
permitted under this Agreement, any controversy or claim arising out of or
relating to this Agreement, the employment relationship or any breach thereof
between the Company and Employee and any of their agents, employees and
affiliated companies shall be settled by arbitration in accordance with the
rules of the America Arbitration Association and judgment upon the award may be
entered in any court having jurisdiction.
15. Headings. Section headings are provided in this Agreement for
convenience only and shall not be deemed to substantively alter the content of
such sections.
16. Indemnification. To the fullest extent permitted by the
indemnification provisions of the operating agreement of the Company in effect
as of the date of this Agreement (collectively, the "Indemnification
Provision"), and in each case subject to the conditions thereof, the Company
shall (i) indemnify the Employee, as an officer or director of the Company if
the Employee shall be serving in such capacity at the Company's written request,
against all liabilities and reasonable expenses that may be incurred by the
Employee in any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, because the Employee is or was an officer or director of the Company
and (ii) pay for or reimburse the reasonable expenses incurred by the Employee
in the defense of any proceeding to which the Employee is a party because the
Employee is or was an officer or director of the Company. The rights of the
Employee under the Indemnification Provision shall survive the termination of
the employment of the Employee by the Company.
17. Non-Disclosure Agreement. Employee shall execute the non-disclosure
agreement attached as Exhibit A.
5
<PAGE> 6
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
/s/ Robert M. Olwig
-----------------------------------
Robert M. Olwig
TELCOBUY.COM LLC
By: /s/ James P. Kavanaugh
--------------------------------
Name: James P. Kavanaugh
Title: Chief Executive Officer
6
<PAGE> 1
EX. 10.7
TELCOBUY.COM, LLC
UNIT OPTION PLAN
SECTION 1. PURPOSE OF THE PLAN.
The Telcobuy.com, LLC Unit Option Plan (the "Plan") is intended as an
incentive to employees, directors, consultants, advisors, strategic partners and
other key individuals associated with either Telcobuy.com, LLC or World Wide
Technology, Inc. to contribute to the growth and success of the Company.
SECTION 2. DEFINITIONS.
2.1. "Board" shall mean the board of managers or board of directors
(whichever is applicable) of the Company.
2.2. "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.3. "Company" shall mean Telcobuy.com, LLC
2.4. "Conversion" shall mean a change in the business form in which the
Company is organized from a limited liability company to a corporation described
in subchapter C of Chapter 1 of Subtitle A of the Code.
2.5. "Disabled" or "Disability" shall mean permanently and totally disabled
within the meaning of Section 422(c)(6) of the Code, which, as of the date
hereof, shall mean that an optionee is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months. A person
shall be considered disabled only if he or she furnishes such proof of
disability as the Committee may require.
2.6. "Investor Managers" shall mean Scott Collins and Sean Dalton, or such
other representative or representatives of Summit Partners and Highland Capital
Partners as may be subsequently appointed to the Board.
2.7. "Units" shall mean equity interests in the Company, as further defined
in Section 3.1.
2.8. "Outside Director" shall mean a director of the Company who (1) is not
an employee of the Company, Parent or a Subsidiary while he or she is a member
of the Committee; (2) is not a former employee of the Company, Parent or a
Subsidiary who receives compensation for prior services (other than benefits
under a tax-qualified retirement plan) during the taxable year; (3) has not been
an Officer of the Company, Parent or a Subsidiary; and (4) shall not receive
Remuneration from the Company, Parent or a Subsidiary either directly or
indirectly in any capacity other than as a director. "Remuneration" and
"Officer" as used herein
<PAGE> 2
shall be determined in accordance with Treas. Reg. Section 1.162-27(e)(3) or any
successor thereto.
2.9. "Parent" shall mean any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if, at the time of the
granting of the option, each of the corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain, or such other meaning
as may be hereafter ascribed to it in Section 424 of the Code.
2.10. "Subsidiary" shall mean any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, at the time of
the granting of the option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain, or such other meaning as may be hereafter ascribed to it in
Section 424 of the Code.
2.11. "WWT" shall mean World Wide Technology, Inc.
SECTION 3. UNITS SUBJECT TO THE PLAN.
3.1 Units Available For Grants of Options. Each Unit shall represent a
fractional equity interest in the Company. 10% of the total Class C Units shall
be available for award pursuant to the Plan, subject to adjustment under Section
15. The value of the equity of the Company shall be determined from time to time
in the sole discretion of the Committee.
3.2 Unpurchased Units. If any option under this Plan shall expire or
terminate for any reason without having been exercised in full, the unpurchased
Units subject thereto shall again be available for the purposes of the Plan.
SECTION 4. ADMINISTRATION.
The Plan shall be administered by the Committee referred to in Section 5.
Subject to the express provisions of the Plan, the Committee, in consultation
with the Investor Managers, shall have plenary authority, in its discretion, to
determine the individuals to whom, and the time or times at which, options shall
be granted and the number of Units to be subject to each option. In making such
determinations the Committee may take into account the nature of the services
rendered by the respective individuals, their present and potential
contributions to the Company's success and such other factors as the Committee,
in its sole discretion, shall deem relevant. Subject to the express provisions
of the Plan, the Committee shall also have plenary authority to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to it, to
determine the terms and provisions of the respective option agreements (which
need not be identical) and to make all other determinations necessary or
advisable for the administration of the Plan. The Committee's determinations on
the matters referred to in this Section 4 shall be conclusive.
SECTION 5. THE COMMITTEE.
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5.1 Composition. Prior to the date on which the "reliance period" defined
in Treas. Reg. Section 1.162-27(f)(2) or any successor thereto ends, the Plan
shall be administered by the Chief Executive Officer of the Company ("CEO")
(unless and until the CEO requests that the Board appoint the Committee and the
members thereof to administer the Plan), in which case the term "Committee" when
used herein with respect to the administration of the Plan shall be deemed to
mean the CEO. After the date on which the "reliance period" defined in Treas.
Reg. Section 1.162-27(f)(2) or any successor thereto ends, such Committee shall
consist of two or more Outside Directors and the CEO; provided that, the CEO may
not vote with respect to the grant of an option to an individual who is a
"covered employee" as defined in Section 163(m)(3) of the Code. The Committee
shall be appointed by the Board in accordance the terms of the Operating
Agreement effective at the time (which currently requires one Investor Manager
to be a member of the Committee), which may from time to time appoint members of
the Committee in substitution for members previously appointed and may fill
vacancies, however caused, in the Committee. The Board shall select one of the
Committee members as its Chairman. The Committee (including the CEO) may appoint
such agents as it deems necessary for the effective exercise of its duties, and
may, to the extent not inconsistent with the terms of the Plan, delegate to such
agents any ministerial duties as the Committee may deem expedient or
appropriate.
5.2 Meetings. The Committee shall hold its meetings at such times and
places as it may determine. A majority of its members shall constitute a quorum.
All determinations of the Committee shall be made by a majority of its members
present at any meeting at which there is a quorum. Any decision or determination
reduced to writing and signed by all of the members shall be fully as effective
as if it had been made by a majority vote at a meeting duly called and held. The
Committee may appoint a secretary, shall keep minutes of its meetings and shall
make such rules and regulations for the conduct of its business as it shall deem
advisable
SECTION 6. ELIGIBILITY.
Unit options may be granted to any individual pursuant to the sole
discretion of the Committee in accordance with Section 4.
SECTION 7. OPTION PRICES.
The purchase price of the Units under each option shall be determined from
time to time by the Committee, which need not be uniform for all optionees.
SECTION 8. PAYMENT OF OPTION PRICES.
The purchase price for an option is to be paid in full upon the exercise of
the option, either (i) in cash, (ii) in the discretion of the Committee, by the
tender to the Company (either actual or by attestation) of Units (or common
stock or other equity securities substituted for Units pursuant to Section 15.2,
provided that the optionee has owned such common stock or other equity
securities for a period of at least six (6) months as of the date of such
tender), owned by the optionee and registered in his or her name, having a fair
market value equal to the cash
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exercise price of the option being exercised, with the fair market value of
such Units to be determined in such appropriate manner as may be provided for by
the Committee or as may be required in order to comply with, or to conform to
the requirements of, any applicable laws or regulations, or (iii) in the
discretion of the Committee, by any combination of the payment methods specified
in clauses (i) and (ii) hereof. Other restrictions on the exercise of an option
shall be those set forth in the option agreements which shall be approved by the
Committee. The proceeds of sale of Units (or common stock or other equity
securities substituted for Units pursuant to Section 15.2) subject to option are
to be added to the general funds of the Company or to the Units held in its
Treasury, and used for its corporate purposes as the Board shall determine.
SECTION 9. EXERCISE OF OPTIONS.
9.1 Terms and Conditions. The term of each option shall be not more than
ten (10) years from the date of granting thereof or such shorter period as is
prescribed in Section 10. Within such limit, options will be exercisable at such
time or times, and subject to such restrictions and conditions, as the Committee
shall, in each instance, approve, which need not be uniform for all optionees.
9.2 Rights of Optionee. The holder of an option shall have none of the
rights of a unit holder with respect to the Units subject to the option until
such Units shall be issued to him or her upon the exercise of his or her option.
9.3 Withholding. Upon exercise of an option the Committee shall withhold a
sufficient number of Units to satisfy the Company's withholding obligations for
any taxes incurred as a result of such exercise, and the Committee may, at the
request of the optionee, withhold a sufficient number of Units to satisfy the
optionee's tax liability incurred as a result of such exercise up to the maximum
marginal federal, state and local tax rates; provided that, in lieu of all or
part of such withholding, the optionee may pay an equivalent amount of cash to
the Company.
SECTION 10. TERMINATION OF ASSOCIATION WITH THE COMPANY OR WWT.
10.1 In General. The holder of any option issued hereunder must exercise
the option prior to his or her termination of association with the Company or
WWT, except that if the association of an optionee terminates with the consent
and approval of the Company, the Committee may, in its absolute discretion,
permit the optionee to exercise his or her option, to the extent that he or she
was entitled to exercise it at the date of such termination of association, at
any time within one (1) year after such termination, but not after ten (10)
years from the date of the granting thereof. The Committee shall determine in
its sole discretion whether an individual's association with either the Company
or WWT has terminated.
10.2 Disability. If the optionee terminates his or her association with the
Company or WWT on account of Disability, such option shall become fully vested
(if not already fully vested) and the optionee may exercise such option at any
time within one (1) year of the termination of his or her association but not
after ten (10) years from the date of the
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granting thereof. The Committee shall determine in its sole discretion
whether an individual's association with either the Company or WWT has
terminated on account of Disability.
10.3 Transfers and Leaves of Absence. With respect to an optionee who is an
employee of the Company or WWT, or a Parent or a Subsidiary of either, options
granted under the Plan shall not be affected by any change of employment so long
as the holder continues to be an employee of the Company, WWT, Parent or a
Subsidiary of either. The option agreements may contain such provisions as the
Committee shall approve with reference to the effect of approved leaves of
absence.
10.4 No Right to Continued Employment. With respect to an optionee who is
an employee of the Company, Parent or a Subsidiary, nothing in the Plan or in
any option granted pursuant to the Plan shall confer on any individual any right
to continue in the employ of the Company, Parent or a Subsidiary or interfere in
any way with the right of the Company, Parent or a Subsidiary thereof to
terminate his or her employment at any time.
SECTION 11. DEATH OF HOLDER OF OPTION.
In the event of the death of an individual to whom an option has been
granted under the Plan, while he or she is associated with the Company or WWT
(or Parent or a Subsidiary or either) or within a period permitted by the
Committee after the termination of his or her association (or one year in the
case of the termination of association of an option holder who is disabled as
provided above in Section 10), the option theretofore granted to him or her
shall become fully vested (if not already fully vested) and may be exercised by
a legatee or legatees of the option holder under his or her last will, or by his
or her personal representatives or distributees, at any time within a period of
one year after his or her death, but not after ten (10) years from the date of
granting thereof.
SECTION 12. TRANSFERABILITY OF OPTIONS.
The Committee may provide in option agreements that options are
transferable. Transferability may be subject to such conditions and limitations
as the Committee deems appropriate. Except to the extent otherwise expressly set
forth in the option agreement, options shall not be transferable other than by
will or the laws of descent and distribution, and (if exercise is required)
shall be exercisable during the optionee's lifetime only by the optionee or his
or her guardian or legal representative.
SECTION 13. SUCCESSIVE OPTION GRANTS.
Successive option grants may be made to any holder of options under the
Plan.
SECTION 14. INVESTMENT PURPOSE.
Each option under the Plan shall be granted only on the condition that all
purchases of Units thereunder shall be for investment purposes, and not with a
view to resale or distribution, except that the Committee may make such
provision with respect to options granted
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under this Plan as it deems necessary or advisable for the release of such
condition upon the registration with the Securities and Exchange Commission of
interests subject to the option, or upon the happening of any other contingency
warranting the release of such condition. The Committee shall also have the
authority to include such provisions in the option agreements as it deems
appropriate in its sole discretion regarding restrictions on the transfer of
Units acquired by an individual pursuant to the exercise of an option granted
under the Plan.
SECTION 15. ADJUSTMENTS.
15.1 Changes in Capitalization or Corporate Acquisitions. Notwithstanding
any other provisions of the Plan, the option agreements may contain such
provisions as the Committee shall determine to be appropriate for the adjustment
of the number of Units subject to each outstanding option and the option prices
in the event of changes in the outstanding Units by reason of a
recapitalization, merger, consolidation, split-up, combination or exchange of
Units and the like, and, in the event of any such change in the outstanding
Units, the aggregate number of Units available under the Plan may be
appropriately adjusted by the Committee, whose determination shall be
conclusive. The provisions in the option agreements governing the adjustments
described in this Section 15.1 need not be uniform as to each optionee, and the
adjustments may be made either to increase or decrease (i) the number of Units
subject to each outstanding option and/or (ii) the option prices.
15.2 Conversion. Notwithstanding any other provisions of the Plan, the
option agreements may contain such provisions as the Committee shall determine
to be appropriate for (i) substituting common stock or other equity securities
of a C corporation created in a Conversion for Units, and/or (ii) adjusting of
the number of Units, common stock or other equity securities subject to each
outstanding option as a result of a Conversion, both or either as determined by
the Company in its sole discretion.
SECTION 16. AMENDMENT AND TERMINATION.
Either the Board or the Committee may at any time terminate the Plan, or
make such modifications to the Plan as either shall deem advisable. No
termination or amendment of the Plan may, without the consent of the optionee to
whom any option shall theretofore have been granted, adversely affect the rights
of such optionee under such option.
SECTION 17. EFFECTIVENESS OF THE PLAN.
The Plan shall become effective upon adoption by the Board.
SECTION 18. TIME OF GRANTING OF OPTIONS.
An option grant under the Plan shall be deemed to be made on the date on
which the Committee, by formal action of its members duly recorded in the
records thereof, makes an award of an option to an eligible person (but in no
event prior to the adoption of the Plan by the Board); provided that, such
option is evidenced by a written option agreement duly executed on
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behalf of the Company and on behalf of the optionee within a reasonable time
after the date of the Committee action.
SECTION 19. TERM OF PLAN.
This Plan shall terminate ten (10) years after the date on which it is
approved and adopted by the Board, and no option shall be granted hereunder
after the expiration of such ten-year period. Options outstanding at the
termination of the Plan shall continue in accordance with their terms and shall
not be affected by such termination.
* * *
The foregoing Plan was approved and adopted by the Board of Managers
on February 15, 2000.
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Ex 10.8
TELECOBUY.COM, INC.
2000 STOCK OPTION PLAN
1. Purpose of the Plan.
The Telecobuy.com, Inc. 2000 Stock Option Plan (the "Plan") is intended as
an incentive to, and to encourage ownership of the stock of Telecobuy.com, Inc.
("Company") by, certain employees of the Company, a parent or a subsidiary as
well as certain other individuals who meet the definition of "consultant" in
Rule 701 of the Securities Act of 1933, as amended. It is intended that certain
options granted hereunder will qualify as incentive stock options within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code") (hereinafter referred to as an "Incentive Stock Option") and that other
options granted hereunder will not qualify as Incentive Stock Options.
2. Stock Subject to the Plan.
The number of shares of the authorized but unissued common stock, par value
of $0.01 per share, of the Company ("Common Stock") allocated to the Plan and
reserved for issue upon the exercise of options granted under the Plan shall be
the sum of (i) 2,500,000 shares of Common Stock plus (ii) an amount determined
annually on the anniversary of the date of adoption of the Plan by the Board of
Directors of the Company equal to the least of (a) 2,500,000 shares of Common
Stock, (b) the number of shares of Common Stock subject to options granted under
the Plan in the one-year period ending on such date or (c) an amount determined
by the Board of Directors of the Company; provided that, the aggregate number of
shares of Common Stock allocated to the Plan may not exceed twenty percent (20%)
of the then outstanding shares of Common Stock, as adjusted in accordance with
the events described in Section 15. The Company may, in its discretion, use
shares held in the treasury in lieu of authorized but unissued shares. If any
such option shall expire or terminate for any reason without having been
exercised in full, the unpurchased shares subject thereto shall again be
available for the purposes of the Plan. Any shares of Common Stock which are
used by an optionee as full or partial payment to the Company of the purchase
price of shares of Common Stock upon exercise of a stock option shall again be
available for the purposes of the Plan. The number of shares with respect to
which options and stock appreciation rights ("SAR's") may be granted to any
individual during any calendar year may not exceed 1,000,000 shares.
3. Administration.
The Plan shall be administered by the Committee referred to in Section 4
(the "Committee"). Subject to the express provisions of the Plan, the Committee
shall have plenary authority, in its discretion, to determine the individuals to
whom, and the time or times at which, options and SAR's shall be granted and the
number of shares to be subject to each option or SAR. In making such
determinations the Committee may take into account the nature of the services
rendered by the respective individuals, their present and potential
contributions to the Company's success and such other factors as the Committee,
in its discretion, shall deem relevant. Subject to the express provisions of the
Plan, the Committee shall also have plenary authority to interpret
<PAGE> 2
the Plan, to prescribe, amend and rescind rules and regulations relating to it,
to determine the terms and provisions of the respective stock option and SAR
agreements (which need not be identical) and to make all other determinations
necessary or advisable for the administration of the Plan. The Committee's
determinations on the matters referred to in this Section 3 shall be conclusive.
4. The Committee.
The Committee shall be comprised of the Board of Directors of the Company
(''Board of Directors'') or a committee of the Board of Directors and shall at
all times be constituted to comply with Rule 16b-3 under the Securities Exchange
Act of 1934, or any successor to such Rule. For calendar years beginning after
the ''reliance period'' defined in Treas. Section 1.162-27(f)(2) or any
successor thereto with respect to the Company, such Committee shall consist
solely of two or more Outside Directors. For this purpose, an Outside Director
shall mean a director of the Company who:
(1) is not an employee of the Company, a parent or a subsidiary while he
or she is a member of the Committee;
(2) is not a former employee of the Company, a parent or a subsidiary who
receives compensation for prior services (other than benefits under a
tax-qualified retirement plan) during the taxable year;
(3) has not been an Officer of the Company, a parent or a subsidiary; and
(4) shall not receive Remuneration from the Company, a parent or a
subsidiary either directly or indirectly in any capacity other than as
a director.
''Remuneration'' and ''Officer'' as used herein shall be determined in
accordance with Treas. Reg. Section 1.162-27(e)(3) or any successor thereto.
The Committee shall be appointed by the Board of Directors, which may from
time to time appoint members of the Committee in substitution for members
previously appointed and may fill vacancies, however caused, in the Committee.
The Board of Directors shall select one of the Committee members as its
Chairman, and shall hold its meetings at such times and places as it may
determine. A majority of its members shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its members
present at any meeting at which there is a quorum. Any decision or determination
reduced to writing and signed by all of the members shall be fully as effective
as if it had been made by a majority vote at a meeting duly called and held. The
Committee may appoint a secretary, shall keep minutes of its meetings and shall
make such rules and regulations for the conduct of its business as it shall deem
advisable.
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5. Eligibility.
Incentive Stock Options may be granted to any individual classified by the
Committee as an employee of the Company, a parent or a subsidiary. The term
"parent" shall mean any corporation (other than Company) in an unbroken chain of
corporation ending with the Company if, at the time of the granting of the
option or SAR, each of the corporations other than the Company owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain, or such other meaning as
may be hereafter ascribed to it in Section 424 of the Code. The term
"subsidiary" shall mean any corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if, at the time of the granting
of the option or SAR, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain, or such other meaning as may be hereafter ascribed to it in Section 424
of the Code. Options which are not Incentive Stock Options and SAR's may be
granted to any individual selected by the Committee.
6. Option Prices.
(a) Incentive Stock Options. The purchase price of the Common Stock under
each Incentive Stock Option shall not be less than 100% of the fair market value
of the stock at the time of the granting of the option; provided that, in the
case of an optionee who owns more than 10% of the total combined voting power of
all classes of stock of the Company, a parent or a subsidiary, the purchase
price of the Common Stock under each Incentive Stock Option shall not be less
than 110% of the fair market value of the stock on the date such option is
granted. If the Common Stock is publicly traded, such fair market value shall
generally be considered to be the mean between the high and low prices of the
Common Stock as traded on the applicable exchange on the day the option is
granted; provided, however, that the Committee may adopt any other criterion for
the determination of such fair market value as it may determine to be
appropriate.
(b) Options Other Than Incentive Stock Options. The purchase price of the
Common Stock under each option other than an Incentive Stock Option shall be
determined from time to time by the Committee, which need not be uniform for all
optionees.
(c) Exercise - Elections and Restrictions. The purchase price for an
option is to be paid in full upon the exercise of the option, either (i) in
cash, (ii) in the discretion of the Committee, by the tender to the Company
(either actual or by attestation) of shares of the Common Stock, owned by the
optionee and registered in his or her name, having a fair market value equal to
the cash exercise price of the option being exercised, with the fair market
value of such stock to be determined in such appropriate manner as may be
provided for by the Committee or as may be required in order to comply with, or
to conform to the requirements of, any applicable laws or regulations, or (iii)
in the discretion of the Committee, by any combination of the payment methods
specified in clauses (i) and (ii) hereof; provided that, no shares of Common
Stock may be tendered in exercise of an Incentive Stock Option if such shares
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were acquired by the optionee through the exercise of an Incentive Stock
Option unless (a) such shares have been held by the optionee for at least one
year and (b) at least two years have elapsed since such prior Incentive Stock
Option was granted. With respect to options that are not Incentive Stock
Options, the restrictions on exercise shall be those set forth in the stock
option agreements which shall be approved by the Committee. The proceeds of sale
of stock subject to option are to be added to the general funds of the Company
or to the shares of the Common Stock held in its Treasury, and used for its
corporate purposes as the Board of Directors shall determine.
7. Incentive Stock Option Amounts Limit.
The maximum aggregate fair market value (determined at the time an option
is granted in the same manner as provided for in Section 6 hereof) of the Common
Stock with respect to which Incentive Stock Options are exercisable for the
first time by any optionee during any calendar year (under all plans of the
Company, a parent and a subsidiary) shall not exceed $100,000.
8. Exercise of Options.
The term of each option shall be not more than ten (10) years from the date
of granting thereof or such shorter period as in prescribed in Section 9;
provided that, in the case of an option holder who owns more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or of its parent or subsidiary, the term of any Incentive Stock Option shall not
be more than five (5) years from the date of granting thereof or such shorter
period as prescribed in Section 9 below. Within such limit, options will be
exercisable at such time or times, and subject to such restrictions and
conditions, as the Committee shall, in each instance, approve, which need not be
uniform for all optionees; provided, however, that except as provided in
Sections 9 and 10, no Incentive Stock Option may be exercised at any time unless
the optionee is then an employee of the Company, a parent or a subsidiary and
has been so employed continuously since the granting of the option. The holder
of an option shall have none of the rights of a shareholder with respect to the
shares subject to option until such shares shall be issued to him or her upon
the exercise of his or her option. Upon exercise of an option the Committee
shall withhold a sufficient number of shares to satisfy the Company's
withholding obligations for any taxes incurred as a result of such exercise, and
the Committee may, at the request of the optionee, withhold a sufficient number
of shares to satisfy the optionee's tax liability incurred as a result of such
exercise up to the maximum marginal federal, state and local tax rates; provided
that, in lieu of all or part of such withholding, the optionee may pay an
equivalent amount of cash to the Company.
9. Termination of Employment.
9.1 In General.
The holder of any option issued hereunder must exercise the option
prior to his
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or her termination of employment, except that if the employment of an optionee
terminates with the consent and approval of his or her employer, the Committee
may, in its absolute discretion, permit the optionee to exercise his or her
option, to the extent that he or she was entitled to exercise it at the date of
such termination of employment, at any time within three (3) months after such
termination, but not after ten (10) years from the date of the granting thereof.
9.2 Disability.
If the Optionee terminates employment on account of disability, his or
her option shall become fully vested (if not already fully vested) and the
Optionee may exercise such option at any time within one year of the termination
of his or her employment but not after ten (10) years (or five (5) years, if
applicable) from the date of the granting thereof. For this purpose, a person
shall be deemed to be disabled if he or she is permanently and totally disabled
within the meaning of Section 422(c)(6) of the Code, which, as of the date
hereof, shall mean that he or she is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months. A person shall be
considered disabled only if he or she furnishes such proof of disability as the
Committee may require.
9.3 Transfers and Leaves of Absence.
Options granted under the Plan shall not be affected by any change of
employment so long as the holder continues to be an employee of the Company, a
parent or a subsidiary thereof. The option agreements may contain such
provisions as the Committee shall approve with reference to the effect of
approved leaves of absence.
9.4 No Right to Continued Employment.
Nothing in the Plan or in any option granted pursuant to the Plan
shall confer on any individual any right to continue in the employ of the
Company, a parent or a subsidiary or interfere in any way with the right of the
Company, a parent or a subsidiary thereof to terminate his or he employment
at any time.
10. Death of Holder of Option.
In the event of the death of an individual to whom an option has been
granted under the Plan, while he or she is employed by the Company, a parent or
a subsidiary or within three (3) months after the termination of his or her
employment (or one year in the case of the termination of employment of an
option holder who is disabled as provided above in Section 9), the option
theretofore granted to him or her shall become fully vested (if not already
fully vested) and may be exercised by a legatee or legatees of the option holder
under his or her last will, or by his or her personal representatives or
distributees, at any time within a period of one year after his or her death,
but not after ten (10) years (or five (5) years, if applicable) from the date
of granting thereof and only if and to the extent that he or she was entitled to
exercise the option at the date of his or her death.
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11. Transferability of Options.
The Committee may provide in option agreements that options, other than
Incentive Stock Options, are transferable. Transferability may be subject to
such conditions and limitations as the Committee deems appropriate. Except to
the extent otherwise expressly set forth in the option agreement, each option
granted under the Plan shall, by its terms, be non-transferable otherwise than
by will or the laws of descent and distribution and an option may be exercised,
during the lifetime of the holder thereof, only by the optionee or his or her
guardian or legal representative.
12. Successive Option Grants.
Successive option grants may be made to any holder of options under the
Plan.
13. Investment Purpose.
Each option under the Plan shall be granted only on the condition that all
purchases of stock thereunder shall be for investment purposes, and not with a
view to resale or distribution, except that the Committee may make such
provision with respect to options granted under this Plan as it deems necessary
or advisable for the release of such condition upon the registration with the
Securities and Exchange Commission of stock subject to the option, or upon the
happening of any other contingency warranting the release of such condition.
14. Stock Appreciation Rights.
(a) Grant. At the time of grant of an option, the Committee, in its
discretion, may grant to the optionee under the Plan an alternative SAR for all
or any part of the number of shares covered by his or her option. The SAR
agreement shall specify the options in respect of which the alternative SAR is
granted. Any subsequent exercise of an option by the holder thereof who also
holds an alternative SAR shall reduce his or her alternative SAR by the same
number of shares as to which his or her option is exercised. Any exercise of
his or her alternative SAR shall reduce his or her option by the same number of
shares as to which his or her SAR is exercised. An alternative SAR granted to
an option holder shall specify a time period for exercise of such SFAR, which
time period may not extend beyond, but may be less than, the time period during
which the corresponding option may be exercised. The failure of the holder of
the alternative SAR to exercise such SAR within the time period specified shall
not reduce his or her option rights. If an alternative SAR is granted for a
number of shares less than the total number of shares covered by the
corresponding option, the Committee may later grant to the option holder an
additional alternative SAR covering additional shares; provided, however, that
the aggregate amount of all alternative SAR's held by an option holder shall at
no time exceed the total number of shares covered by his or her unexercised
options. In addition, the Committee may grant SAR's which are not alternative
SAR's.
(b) Exercise. The holder of any SAR may elect to exercise his or her SAR;
subject, however, to the limitations on time of exercise hereinafter set forth.
Such SAR shall be exercised
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by the delivery to the Company of a written notice which shall state that the
optionee elects to exercise his or her SAR as to the number of shares specified
in the notice and which shall further state what portion, if any, of the SAR
exercise amount (hereinafter defined) the holder thereof requests be paid to
him or her in cash and what portion, if any, he or she request be paid to him
or her in Common Stock. The Committee promptly shall cause to be paid to such
holder the SAR exercise amount either in cash, in Common Stock, or any
combination of cash and stock as it may determine. Such determination may be
either in accordance with the request made by the holder of the SAR or
otherwise, in the sole discretion of the Committee. The SAR exercise amount is
the excess of the fair market value of one share of the Common Stock on the
date of exercise over the per option price for the option in respect of which
the SAR was granted multiplied by the number of shares as to which the SAR is
exercised. For the purposes hereof, fair market value of one share of the
Common Stock on the date of exercise shall be the mean between the high and
low prices of the Common Stock on the applicable exchange on such date;
provided that, the Committee may adopt any other criterion for the
determination of such fair market value as it may determine to be appropriate.
(c) Other Provisions of Plan Applicable. All provisions of this Plan
applicable to options granted hereunder shall apply with equal effect to SAR's.
15. Adjustments Upon Changes in Capitalization or Corporate Acquisitions.
Notwithstanding any other provisions of the Plan, the option and SAR
agreements may contain such provisions as the Committee shall determine to be
appropriate for the adjustment of the number and class of shares subject to
each outstanding option or SAR and the option prices and SAR exercise amounts
in the event of changes in the outstanding Common Stock by reason of stock
dividends, recapitalization, mergers, consolidations, split-ups, combinations
or exchanges of shares and the like, and, in the event of any such change in
the outstanding Common Stock, the aggregate number and class of shares
available under the Plan and the maximum number of shares as to which options
and SAR's may be granted to any individual shall be appropriately adjusted by
the Committee, whose determination shall be conclusive. In the event the
Company, a parent or a subsidiary enters into a transaction described in
Section 424(a) of the Code with any other corporation, the Committee may grant
options or SAR's to employees or former employees of such corporation in
substitution of options or SAR's previously granted to them upon such terms and
conditions as shall be necessary to qualify such grant as a substitution
described in Section 424(a) of the Code.
16. Amendment and Termination.
The Board of Directors may at any time terminate the Plan, or make such
modifications to the Plan as it shall deem advisable; provided, however, that
the Board of Directors may not, without further approval by the holders of
Common Stock, increase the maximum numbers of shares as to which options or
SAR's may be granted the Plan (except under the anti-dilution provisions in
Section 15), or change the class of employees to whom options or SAR's may be
granted, or withdraw the authority to administer the Plan from a committee
whose members satisfy the requirements of Section 4. No termination or
amendment of the Plan may,
7
<PAGE> 8
without the consent of the optionee to whom any option or SAR shall theretofore
have been granted, adversely affect the rights of such optionee under such
option or SAR.
17. Effectiveness of the Plan.
The Plan shall become effective upon adoption by the Board of Directors
subject however, to its further approval by the shareholders of the Company
given within twelve (12) months of the date the Plan is adopted by the Board of
Directors at a regular meeting of the shareholders or at a special meeting duly
called and held for such purpose. Grants of options or SAR's may be made prior
to such shareholder approval but all option and SAR grants made prior to
shareholder approval shall be subject to the obtaining of such approval and if
such approval is not obtained, such options and SAR's shall not be effective for
any purpose.
18. Time of Granting of Options or SAR's.
An option or SAR grant under the Plan shall be deemed to be made on the
date on which the Committee, by formal action of its members duly recorded in
the records thereof, makes an award of an option or SAR to an eligible employee
of the Company, a parent or a subsidiary (but in no event prior to the adoption
of the Plan by the Board of Directors); provided that, such option or SAR is
evidenced by a written option or SAR agreement duly executed on behalf of the
Company and on behalf of the optionee within a reasonable time after the date
of the Committee action.
19. Term of Plan.
This Plan shall terminate ten (10) years after the date on which it is
approved and adopted by the Board of Directors and no option or SAR shall be
granted hereunder after the expiration of such ten-year period. Options or
SAR's outstanding at the termination of the Plan shall continue in accordance
with their terms and shall not be affected by such termination.
* * *
The foregoing Plan was approved and adopted by the Board of Directors on
March 16, 2000.
8
<PAGE> 1
EX. 10.11
Agreement No. BA17136
Page 1 of 18
AGREEMENT FOR THE PURCHASE OF GOODS
THIS AGREEMENT by and between World Wide Technology, Inc., a corporation
organized under the laws of Missouri with an office at 127 Weldon Parkway, St.
Louis, Missouri 63043 (hereinafter called "Supplier"), and TELESECTOR RESOURCES
GROUP, INC., a Delaware corporation with an office at 240 East 38th Street, New
York, New York 10016 (hereinafter called "Bell Atlantic").
1.0 SCOPE OF AGREEMENT
1.1 Scope. This Agreement sets forth the terms and conditions that will govern
Supplier's sale to Bell Atlantic of the Products, inclusive of the appropriate
software, firmware, and documentation [* Confidential treatment will be
requested] ("the Products"). Bell Atlantic is not promising to purchase any
quantity of Products from Supplier. Any estimates that Bell Atlantic may have
provided to Supplier are not firm or binding unless otherwise specifically
stated in this Agreement. This is not an exclusive dealings arrangement.
1.2 Bell Atlantic Affiliates. References in this Agreement to "Bell Atlantic
Affiliates" shall include the following companies: Bell Atlantic Corporation,
its subsidiaries and affiliates. Bell Atlantic may direct that Products be
provided directly to a Bell Atlantic Affiliate. A Bell Atlantic Affiliate that
obtains a Product directly under this Agreement, whether right to use or title
passes directly to that entity or not, shall be entitled to all of the rights
and benefits afforded to Bell Atlantic under this Agreement and may enforce this
Agreement in its own name. When Products are shipped directly to an affiliate,
Bell Atlantic shall be acting as an agent for that affiliate and title shall
pass directly to that affiliate.
2.0 TERM OF THE AGREEMENT
2.1 Term. This Agreement shall be effective on January 28, 1999 and shall end
January 31, 2002, provided that Bell Atlantic may extend the term of this
Agreement for a period of up to 12 months, by giving Supplier written notice at
least thirty (30) days prior to the expiration date.
2.2 Termination by Bell Atlantic. Notwithstanding any other provisions of this
Agreement, Bell Atlantic may terminate this Agreement for convenience upon
thirty 30 days notice to Supplier.
2.3 Termination by Supplier. Supplier may not terminate this Agreement, or
cancel an Order(s) except for non-payment of the purchase price and then only if
after thirty (30) days of receipt of written notice of non-payment, Bell
Atlantic fails to pay such purchase price and thereupon Supplier issues its
written notice of default and Bell Atlantic fails to pay such purchase price
within ten (10) business days of receipt of such notice of default. In no way
shall such termination act to impair Bell Atlantic's right, title and interest
to the PRODUCT purchased hereunder, or its rights to Software which have been
purchased hereunder.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
Agreement No. BA17136
Page 1 of 18
2.3 Existing Orders Continue. The termination or expiration of this Agreement
shall not affect the obligations of either party to the other under existing
Orders issued pursuant to this Agreement (except to the extent orders are
terminated or modified in accordance with the Section "ORDERS"), but such Orders
shall continue in effects as if this Agreement had not been ended.
3.0 ORDERS
3.1 Orders Contents. Bell Atlantic shall purchase Products by issuing an Order
that references this Agreement and sets forth the quantity of each Product being
ordered; the time and place of delivery; the Order number; the date of the
Order; the billing and delivery addresses; the required delivery date(s); the
name and telephone number of the person to contact regarding shipping
instructions; and any special terms and conditions relevant to the particular
Order. (Special terms are those that are not preprinted. See the section below
titled "ENTIRE AGREEMENT".) Supplier agrees that it will accept or reject any
Order issued by Bell Atlantic under this Agreement within ten (10) days of
receipt by Supplier. Supplier further agrees that if Bell Atlantic does not
receive a rejection from Supplier of an Order within this ten (10) day period,
Bell Atlantic may consider such failure as an acceptance of the Order.
3.2 Right to Cancel. Bell Atlantic may, by giving Supplier written notice,
cancel all or part of an Order at any time prior to delivery of the Products.
Bell Atlantic's liability to Supplier for the entire transaction shall be
limited to reasonable non-recoverable out-of-pocket expenses that Supplier
incurred as a result of Supplier's receipt of the Order and its full or partial
cancellation.
3.3 Change Order. Bell Atlantic may, by issuing a written document labeled as a
"Change Order," make changes to an Order. If any change required by a Change
Order alters the value of the Products ordered, Supplier shall promptly notify
Bell Atlantic and Supplier shall adjust the price accordingly. If the amount of
the price adjustment is not specified in this Agreement, then the amount of any
change in price caused by the adjustment may be no greater than Supplier's
reasonable documentable increased costs and expenses. Supplier shall notify Bell
Atlantic within three (3) business days of Supplier's receipt of a Change Order
if the Change Order will cause an increase in price. Bell Atlantic may, at its
discretion, agree to the changed price or withdraw the underlying Change Order.
4.0 DELIVERY
4.1 Timely Delivery. Unless otherwise indicated on an Order, Supplier must ship
an entire order to the location indicated on an Order by the date specified.
Supplier may not ship the Products more than one week in advance of the date
specified without the prior written approval of Bell Atlantic. Bell Atlantic may
require delivery within seven (7) calendar days of the date of an Order. If Bell
Atlantic requests a faster delivery time, Supplier may: (1) fill the Order in
that faster time period at the same price; (2) notify Bell Atlantic of any
required premium prior to acceptance of the Order and receive approval or
rejection of that price, provided that if the premium is rejected the Order
shall be deemed canceled unless Bell Atlantic agrees to extend the delivery
date; or (3) promptly notify Bell Atlantic that Supplier cannot supply the
Product within the period requested, in which instance Bell Atlantic may cancel
the Order and purchase the
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 3
Agreement No. BA17136
Page 2 of 18
Product elsewhere or extend the required delivery date. Unless Supplier provides
Bell Atlantic with written notice within three (3) days of Bell Atlantic's
request for a faster delivery time that it cannot meet Bell Atlantic's faster
date, Supplier must meet the faster date.
4.2 Late Delivery. If Supplier fails to meet the delivery schedule Supplier
shall be in breach of this Agreement, and Bell Atlantic, without limiting any of
its other rights or remedies, may direct that Supplier, at Supplier own expense,
expedite routing or Bell Atlantic may seek to purchase Products from another
supplier with Supplier being responsible for any increased costs. Bell Atlantic
may, but shall not be obligated to, accept any untimely, excessive or incomplete
shipments. Bell Atlantic may, at Supplier's risk and expense, return to Supplier
or hold for disposition all or part of any such shipment.
4.3 Packing Memo; Shipping Papers. Supplier shall enclose a packing memorandum
with each shipment. If Supplier ships more than one package, Supplier shall
clearly mark the package containing the memorandum. Supplier shall prominently
label each packing memorandum, shipment paper and package with the applicable
Order number. When Supplier makes more than one shipment against an Order,
Supplier must indicate the last shipment on the invoice and shipping papers
accompanying the last shipment.
4.4 Routing. Product shall be shipped by Supplier, F.O.B., Destination Billed
(DB), from Supplier's nearest facility capable of meeting Bell Atlantic's
requirements using the most cost effective common carrier (rail, truck air or
freight forwarder) with transportation charges prepaid by Supplier and added as
a separate item to the invoice to be paid by Bell Atlantic. For shipments less
than 150 pounds, Supplier shall use its approved small package transportation
company. Deviations from these instructions must be authorized by Bell
Atlantic's Transportation Organization. Excess transportation charges resulting
from Supplier's failure to comply with these instructions will be billed back to
Supplier. In no event will Bell Atlantic be liable for premium shipping modes
unless previously authorized. Shipping and routing instructions may be altered,
orally or in writing, as mutually agreed upon by Supplier and Bell Atlantic. If
requested by Bell Atlantic, Supplier agrees to substantiate such charges by
providing Bell Atlantic with the original freight bill or a copy thereof. When
Bell Atlantic instructs Supplier to ship origin collect (OC), Supplier will ship
Product via the carrier designated by Bell Atlantic. Supplier shall call Bell
Atlantic's Transportation Organization on 703-974-6491 to obtain information
regarding carrier designations.
4.5 Title; Risk of Loss. Title and risk of loss or damage to Product purchased
by Bell Atlantic under this Agreement, or an Order issued pursuant to this
Agreement, shall vest in Bell Atlantic when the delivery of the Product has been
completed to the location specified in the Order. Delivery is not complete and
Supplier shall retain risk of loss or damage for all Product until Bell Atlantic
shall have inspected the shipping container(s) and verified that the Product
received complies with the Order with respect to quantity and condition of the
shipping container in which the Product is received. In the event that the
shipment does not comply, title and risk of loss shall not pass to Bell
Atlantic. In such circumstance, Bell Atlantic shall note any shortage and/or
visible transportation damages on the shipping document and notify Supplier of
same
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 4
Agreement No. BA17136
Page 3 of 18
within seven (7) days of receipt of Product. Bell Atlantic shall cooperate
with Supplier in the prosecution of loss or damage and resulting claim.
5.0 PRODUCT AND QUALITY SPECIFICATIONS
5.1 Specifications. The Products (including all pallets and packaging) shall
meet all government and industry standards and specifications, as well as any
standards and specifications that Supplier has published (unless previously
rejected by Bell Atlantic) [* Confidential treatment will be requested].
5.2 Defects. If Supplier receives information from one or more of Supplier's
other customers which indicates that any Product may contain a defect including
a defect in design or manufacture, that use of a Product may infringe upon the
intellectual property rights of a third party, or that any Product may have a
problem which could interfere with its intended use, Supplier will promptly
notify Bell Atlantic of those defects or problems.
5.3 Defect Obligations. If any of Supplier's Products are discovered by Supplier
or Bell Atlantic to be defectively designed or to contain a defect which could
pose a threat to the health or safety of any Product user, the environment, or
to the Bell Atlantic network, Supplier shall, in addition to any other remedy
required by this Agreement or by law, recall all applicable Products and repair
or replace them or provide a field fix which eliminates the danger posed by the
defect.
5.4 Year 2000 - Representation and Warranty. In addition to and without
limitation of any other right or remedy of Bell Atlantic, Supplier represents
and warrants that all Products delivered hereunder will record, store, process,
and present calendar dates falling on or after January 1, 2000, in the same
manner, and with the same functionality, as such Products record, store, process
and present calendar dates falling on or before December 31, 1999. Supplier
further represents and warrants that in all other respects such Products shall
not in any way lose functionality or degrade in performance as a consequence of
such Products operating at a date later than December 31, 1999. Without
limitation of the foregoing, Supplier's representative will consult with Bell
Atlantic's designated representative for century date change requirements, to
ensure that such Products will lose no functionality with respect to the
introduction of records containing dates falling on or after January 1, 2000,
and to ensure that such Products will be interoperable with other equipment used
by Bell Atlantic which may deliver records to such Products, receive records
from such Products from such Products, or interact with such Products in the
course of processing data.
* Confidential treatment will be requested
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 5
Agreement No. BA17136
Page 4 of 18
* Confidential treatment will be requested
8.0 INVOICES AND NOTICES
8.1 Invoicing; Right to Set Off. Supplier shall send invoices to the person and
address set forth on the front of the Order. Bell Atlantic shall pay the
invoices within thirty (30) days from receipt date of the invoice or the
delivery of the Product has been completed (as described in section 4.5 titled
"Title; Risk of Loss") to the location specified in the Order, whichever occurs
second. If Bell Atlantic disputes all or any portion of an invoice, it shall be
required to pay only the amount not in dispute. [*Confidential treatment
requested]. Bell Atlantic shall be entitled to set off any amount Supplier owes
it against amounts payable under this or any other Agreement. Payment by Bell
Atlantic shall not result in a waiver any of its rights under this Agreement.
Bell Atlantic shall not be obligated to pay Supplier for Services that are not
fully and properly invoiced.
8.2 Invoice Contents. Supplier shall provide in or with Supplier's invoice a
detailed list of all charges which shall include: (1) the type, description,
quantity and, where applicable, the serial numbers of the Products; (2) the
basic charge for the Products, including a description of all applicable
discounts; (3) a separate statement specifically listing all applicable taxes as
well as transportation and other associated costs; (4) the dates Products were
shipped; (5) the applicable Order number; and (6) any other information
specified in the Order.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 6
Agreement No. BA17136
Page 1 of 18
9.0 AUDITS
9.1 Records. Supplier shall maintain, in accordance with standard recognized
accounting practices, accurate and complete records that enable Supplier to
demonstrate full compliance with this Agreement. Supplier shall maintain these
records for a period ending four (4) years after the termination of this
Agreement.
9.2 Audit. Supplier shall allow Bell Atlantic and its authorized agents and
representatives to audit these records, during normal business hours, at any
time during the term of this Agreement and the four (4) year period following
the termination or expiration of this Agreement. Bell Atlantic shall be entitled
to a refund for all amounts that the audit report finds Bell Atlantic overpaid
to Supplier. Bell Atlantic shall bear the cost of these audits unless it is
determined that Supplier overcharged Bell Atlantic for Products during the
period of time for which the records were audited.
10.0 INSPECTIONS, TESTS AND ACCEPTANCE
10.1 Inspection. All Products are subject to final inspection and acceptance by
Bell Atlantic or its agent at any time up to seven (7) days after delivery. Bell
Atlantic's inspections and payments prior to delivery do not constitute final
acceptance. If goods delivered do not conform with the requirements of this
Agreement and the applicable Order, Bell Atlantic has the right to reject such
Products. Bell Atlantic, at its option may, at Supplier's risk and expense,
return to Supplier or hold for Supplier's deposition Products that Bell Atlantic
has rejected in whole or in part. This remedy is in addition to any other
available remedy. Supplier may not require any employee or representative to
sign a release as a condition for conducting an inspection under this paragraph.
10.2 The Products to be furnished or delivered pursuant to Order(s) issued under
this Agreement shall be subject to acceptance as follows:
Bell Atlantic and/or its Affiliates will be granted up to a thirty (30) day
period (Acceptance period) to test conformance with Specifications utilizing
Supplier's standard acceptance test procedures and Bell Atlantic's and/or its
Affiliates' own independent testing procedures as agreed upon. Upon successful
completion of such tests, Bell Atlantic and/or its Affiliate(s) shall issue a
Notice of Acceptance. In the event a Notice of Defects has been issued by Bell
Atlantic and/or its Affiliate(s) Supplier shall ship a replacement Product(s)
within twenty-four (24) hours of such notice. Upon delivery of such replacement
Product(s) by Supplier, Bell Atlantic and/or its Affiliates(s) shall have the
opportunity to retest the replacement Products. Time required for Bell Atlantic
and/or its affiliates to retest the new Product(s) shall not apply the thirty
(30) day period of Acceptance.
10.3 No Waiver. Neither the right of Bell Atlantic to inspect Products nor its
failure to test Products prior to acceptance shall affect any rights of Bell
Atlantic or a Bell Atlantic Affiliate under any provision of this Agreement.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 7
Agreement No. BA17136
Page 6 of 18
11.0 BELL ATLANTIC'S PROPERTY AND TOOLING
11.1 Bell Atlantic Ownership. Title to and the right to immediate possession of
any property, including patterns, tools, molds, jigs, dies, information provided
in tangible form or made for Supplier's performance under this Agreement, and
any other equipment or material, furnished to Supplier or paid for by Bell
Atlantic shall vest in Bell Atlantic. Supplier may not furnish any articles made
therefrom to any other party without the prior written consent of Bell Atlantic.
Supplier shall keep adequate records of such property and Supplier will safely
store, protect, preserve, repair and maintain such property at Supplier's
expense.
11.2 BELL ATLANTIC DISCLAIMER OF WARRANTIES. If Bell Atlantic allows Supplier to
use any of Bell Atlantic's tools or equipment, such tools and equipment are
supplied to Supplier "AS-IS" with no warranties whatsoever. BELL ATLANTIC
EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. It is Supplier's responsibility to inspect
the tools and equipment to assure that they are safe and fit for their intended
purposes. Supplier shall indemnify and hold Bell Atlantic, as well as any Bell
Atlantic Affiliate, harmless against any claims, demands and liabilities that
result from Supplier's use of such tools and equipment, including, but not
limited to, any claims, demands and liabilities resulting from defects or other
failures of the tools and equipment, the inadequacy of a tool or equipment for a
particular task or the failure to properly use any tool or equipment.
* Confidential treatment will be requested
13.0 HAZARDOUS PRODUCTS OR COMPONENTS
13.1 Supplier Responsible. Supplier agrees to notify Bell Atlantic in writing
and to supply an appropriate Material Safety Data Sheet (MSDS) to the Telesector
Resources Group Integrated Technical Services Division, 221 E. 37th Street, 4th
Floor, NY, NY 10016 as well as to the ship-to point, if any Product or component
thereof is toxic or hazardous under any Federal, state or local law or if the
Product is capable of constituting a hazard. Supplier shall be responsible to
ensure that Products display all reasonable notices and warnings of foreseeable
hazards. If any Products or containers would be or could be classified as
hazardous or otherwise regulated waste
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 8
Agreement No. BA17136
Page 7 of 18
at the end of its useful life, Supplier will advise Bell Atlantic in writing and
provide Bell Atlantic with proper disposal instructions.
14.0 INDEMNIFICATION
14.1 Indemnification. Supplier agrees to indemnify, defend and hold Bell
Atlantic and Bell Atlantic Affiliates harmless against any losses, damages,
liabilities, claims or demands (including all costs, expenses and reasonable
attorneys' fees on account thereof or in connection with any investigation or
preparation related thereto or the enforcement of the indemnification provisions
of this Agreement) (collectively, the "Indemnified Amounts") that may be made as
a result of Supplier's actual or alleged acts or omissions including, but not
limited to, claims made: (i) by anyone for infringement of any trademark,
copyright, patent, trade secret or other intellectual property right relating to
use or reproduction of Products or materials or services provided, developed,
authored or originated by Supplier; (ii) by anyone for injuries (including
death) to persons or damage to property (including theft) or other cause of
action resulting from Supplier's acts or omissions or those of persons furnished
by Supplier while performing work for Bell Atlantic pursuant to this Agreement
or in connection with materials furnished by Supplier pursuant to this
Agreement; (iii) by persons furnished by Supplier or any subcontractors based on
employment contract, or federal, state or local laws prohibiting discrimination
in employment, or (iv) by persons furnished by Supplier or any subcontractors
under worker's compensation or similar acts; (v) in connection with the Products
and services contemplated by this Agreement, including the manufacture, use,
importation, offer for sale or sale of any Products, or resulting directly or
indirectly from the Products or the performance of the services under this
Agreement whether caused by the negligence of Supplier or anyone acting on
behalf of Supplier; or (vi) under any federal securities laws, or under any
other statute, at common law or otherwise, arising out of or in connection with
the Products or services contemplated by this Agreement or any information
obtained in connection with the performance hereunder. Bell Atlantic agrees to
notify Supplier of any written claims or demands against Bell Atlantic for which
Supplier is responsible hereunder and Bell Atlantic shall be entitled, at its
option if Bell Atlantic is dissatisfied with Supplier's handling thereof, to
assume the defense or settlement of any such claim. Supplier shall promptly
reimburse Bell Atlantic for Indemnified Amounts as they are incurred.
15.0 IMPLEADER
15.1 No Impleader. Supplier agrees not to implead or bring any action against
Bell Atlantic (including Bell Atlantic Affiliates), its successors, assigns,
employees or officers based on any claim (i) by any Bell Atlantic (including any
Bell Atlantic Affiliate) employee for personal injury or death that occurs in
the course or scope of employment of such person or (ii) by any person furnished
by Supplier under this Agreement based on employment contract, or federal, state
or local laws prohibiting discrimination in employment.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 9
Agreement No. BA17136
Page 8 of 18
16.0 INSURANCE
16.1 Requirements. Supplier shall secure and maintain at its expense during the
term of this Agreement (i) statutory workers' compensation and employers
liability with limits of not less than $500,000; (ii) Commercial General
Liability insurance, including but not limited to, products liability and
completed operations, contractual liability, independent contractor, for a
combined single limit of at least $1,000,000 per occurrence for bodily injury
and property damage with a minimum policy aggregate of $2,000,000; and (iii)
Comprehensive Automobile Liability insurance for a minimum combined single limit
of $1,000,000 per occurrence. The insurer must be licensed to do business in the
state in which the work is performed and must have Bests Rating "AX" or better.
In addition to containing an endorsement naming Bell Atlantic Corporation and
Telesector Resources Group, Inc as Additional Insured, the policies listed above
shall contain a provision eliminating and removing any exclusion of liability
for i) injury, including bodily injury and death, to an employee of the insured
or of Bell Atlantic or ii) any obligation of the insured to indemnify, hold
harmless, defend or otherwise make contribution to Bell Atlantic because the
damage arising out of injury, including bodily injury and death, to an employee
of Bell Atlantic. Furthermore, Bell Atlantic must receive at least thirty (30)
days' notice of cancellation or modification of the above insurance.
Certificates of insurance must be provided prior to any work being performed and
must be kept in force during the term of this Agreement. It is also agreed that
Supplier's policy is primary.
16.2 No Limitation. Supplier is responsible for determining whether the above
minimum insurance coverages are adequate to protect its interests. The above
minimum coverages do not constitute limitations upon Supplier's liability.
17.0 FORCE MAJEURE
17.1 Not Liable. Neither party shall be liable for defaults or delays due to any
causes (such as strikes, wars, acts of sabotage or natural disasters, but not
for acts which Supplier could have anticipated such as raw material price
increases, shortages of raw materials, or an increase in demand for Products by
third parties) that are beyond its control and that are not due to its acts or
omissions (Force Majeures).
17.2 Notice and Options for Other Party. Each party shall promptly notify the
other in case of a Force Majeure occurrence within five days after the beginning
thereof, and the party receiving notice may, by providing notice to the other
party at any time during the period covered by the Force Majeure, extend the
time for performance, or cancel all or any unperformed part, of this Agreement.
18.0 TERMINATION
18.1 Bell Atlantic Right to Terminate. Bell Atlantic may terminate this
Agreement as follows: (i) immediately upon notice in response to regulatory or
legal concerns or any concerns that activities under this Agreement may endanger
the health or safety of a person, the environment or the Bell Atlantic network;
(ii) at any time upon ten (10) days' notice; or (iii) immediately upon
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 10
Agreement No. BA17136
Page 9 of 18
notice for cause as follows: (a) for failure to perform, if Bell Atlantic first
gave Supplier notice of breach and an opportunity to cure in seven days, or (b)
based on Bell Atlantic's belief that Supplier has engaged in illegal, criminal
or fraudulent conduct in connection with services performed or to be performed
under this Agreement, or (c) the failure to pay its subcontractors or employees
providing services under this Agreement, or (d) a change in control, or
liquidation or insolvency of Supplier. Upon termination for cause, Supplier
shall not be entitled to further payments under this Agreement, and for a
material breach, Supplier shall immediately refund all amounts it received for
the applicable Products.
18.2 Existing Orders. Any termination of this Agreement will not terminate the
parties' obligations to each other under existing Orders unless Bell Atlantic
terminates such in accordance with Section 3 titled ORDERS above.
19.0 RELATIONSHIP OF THE PARTIES
19.1 Independent Contractor. Supplier's relationship to Bell Atlantic and Bell
Atlantic Affiliates shall be that of an independent contractor. Supplier shall
be responsible for Supplier's own employees and labor relations. This Agreement
does not make Supplier an agent, partner or joint venturer of Bell Atlantic or
Bell Atlantic Affiliates. Accordingly, Supplier may not bind, or attempt to
bind, Bell Atlantic or any Bell Atlantic Affiliate, to any third parties
including, but not limited to, any labor organizations. Supplier shall be
entirely responsible for its own actions.
19.2 Persons Furnished by Supplier. Supplier shall be responsible for the
performance and actions of Supplier's employees, Supplier's subcontractors and
others acting at Supplier direction or on Supplier behalf. Supplier will be
deemed to have performed any act or omission of such persons under this
Agreement and Bell Atlantic shall be entitled to all remedies available under
this Agreement or at law. Nothing in this section shall be construed to prohibit
Bell Atlantic or Bell Atlantic Affiliates from also seeking remedial action
against the agent or employee for its act or omission.
20.0 GOVERNMENT CONTRACTS
20.1 Additional Requirements. If Supplier is informed that Products are being
purchased, directly or indirectly, to satisfy a contract of the United States
Government or any State or other governmental authority, then all terms and
conditions required by law, regulation or by Government Contract with respect to
the Products are incorporated herein by reference. In particular, Supplier
agrees to comply with all Equal Employment Opportunity Requirements.
21.0 ADVERTISEMENTS AND USE OF TRADEMARKS
21.1 Prohibitions and Restrictions. Supplier shall not advertise or publish the
fact that Supplier has furnished, or has contracted to furnish, to Bell Atlantic
the goods or services covered by this Agreement without the prior written
consent of Bell Atlantic. Supplier shall not use any trademark, trade name,
trade dress or any name, picture or logo which is commonly
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 11
Agreement No. BA17136
Page 10 of 18
identified with Bell Atlantic or any Bell Atlantic Affiliates without the
express written permission of Bell Atlantic.
21.2 Product Markings. If Bell Atlantic requires or allows Supplier to place any
marking or name on Products, Supplier shall ensure that the name or marking is
only placed on Products covered by this Agreement. Supplier shall completely
remove the marking or name from any Products upon which the name or marking was
placed but which are not sold to or accepted by Bell Atlantic.
22.0 INTELLECTUAL PROPERTY AND INFORMATION
22.1 Intellectual Property.
22.1.1 Software License. Supplier grants to Bell Atlantic a perpetual,
non-exclusive and irrevocable license for the use of firmware contained within
the Product ordered hereunder and software ("Software"). Under such license,
Bell Atlantic is authorized to use, execute and operate the Software, in whole
or in part, on any computer system or processor on which the Software will
function, and on any number of computer systems or processors, provided the use,
execution or operation is in the normal course of business; notwithstanding
anything to the contrary in the Agreement, use by or for Bell Atlantic's direct
or lower tier customers, as incident to, arising out of, or as reasonably
necessary to comply with, the Telecommunications Act of 1996 or any FCC orders
implementing same, or any similar unbundling or interconnection requirements
imposed by any state or local public service authority shall be deemed to be
use, execution or operation in the normal course of business and shall be
included, without additional charge, within the scope of the license granted
under this Agreement. Supplier also grants to Bell Atlantic the right to
transfer such license to its Affiliates. No such transfer shall release Bell
Atlantic from its obligations hereunder.
There is no additional fee beyond the Product purchase price for the licenses
granted hereunder.
Supplier warrants that it has all rights required to grant the licenses ordered
hereunder.
22.1.1.1 Irrevocable Software License. In the event Bell Atlantic fails to meet
its uncontested payment obligations in connection with Products provided by
Supplier, Supplier may cancel only the license for Software contained within the
Product for which payment has not been made. In no way shall such cancellation
act to terminate, cancel or otherwise impair Bell Atlantic's rights under this
agreement for Software which has been purchased and paid for. In the event Bell
Atlantic otherwise breaches the license, Supplier may be entitled to seek
damages which result from such breach and to injunctive relief intended to end
the breach; provided however that no such injunction, nor the payment of
damages, shall enjoin or have the effect of enjoining the use of the Software in
accordance with the terms and conditions of the license nor act to otherwise
impair Bell Atlantic's rights to Software which have been purchased hereunder.
22.1.2 Infringement. Supplier acknowledges that Bell Atlantic is a provider of
telecommunications services and does not manufacture any of the component parts
of its
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 12
Agreement No. BA17136
Page 11 of 18
network. Supplier further acknowledges that Bell Atlantic intends to use
Supplier's Products in combination with Suppliers' other products and the
products of others. As a consequence, Bell Atlantic's decision to deploy
Supplier's Products within its network is made in reliance on Supplier's
assurance that such use of Products does not infringe the intellectual property
rights of others. Furthermore, Bell Atlantic requires that Supplier will
indemnify, hold harmless and defend Bell Atlantic from and against any loss,
cost, damage, claim, expense or liability that may arise out of, or result by
reason of such infringement or claim of infringement, whether arising out of
Bell Atlantic's use of such Products or the acts of Supplier. However, if it is
determined that the Products were made infringing as a result of
modification(s) made by Bell Atlantic, without Supplier's written consent, or
by modification(s) made at Bell Atlantic's direction by Supplier, then the
foregoing indemnity shall not apply. In the event Supplier's Products is
found to be infringing, Bell Atlantic requires Supplier to make every effort to
license, modify or replace the infringing Products to avoid removal of such
Products from Bell Atlantic's network. In the event Supplier is unable to
license, modify or replace the infringing Products and Bell Atlantic must
remove the infringing Products from its network, Supplier shall provide a full
refund of the purchase price of such Products.
22.2 Information.
22.2.1 Information Defined. The term "Information" includes: programs and
related documentation; specifications, drawings, models, technical and business
data and plans; works of authorship and other creative works; and ideas,
knowledge and know-how. Information may be transmitted in writing (or other
tangible form) or orally.
22.2.2 No Supplier Confidential Information. No Information Supplier provides to
Bell Atlantic (even if labeled or otherwise designated as proprietary or
confidential) shall be considered by Bell Atlantic to be confidential or
proprietary.
22.2.3 Bell Atlantic Information. Information that Bell Atlantic furnishes to
Supplier or that Supplier otherwise comes into contact with under this Agreement
will remain Bell Atlantic property. Supplier will return such Information to
Bell Atlantic upon termination of the Agreement or at Bell Atlantic's earlier
request. Unless such Information was previously known to Supplier free of any
obligation to keep it confidential or is made public by Bell Atlantic or a third
party without breach of any agreement, Supplier will keep the Information
confidential and use it only in performing this Agreement.
22.2. Work Product. The entire right, title and interest in all edits, original
inventions and works of authorship created by Supplier, or on Supplier's behalf,
for Bell Atlantic or furnished to Bell Atlantic hereunder or in relation to the
Products shall be transferred to and vested in Bell Atlantic. All such works
shall be considered to be made for hire. Supplier agrees to provide
documentation and to sign all documents prepared or supplied by Bell Atlantic
which Bell Atlantic believes are necessary to ensure the conveyance of all such
right, title and interest, including patent, trademark and copyright, to Bell
Atlantic.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 13
Agreement No. BA17136
Page 12 of 18
22.2.5 No Supplier Licenses. Bell Atlantic does not grant Supplier any license,
express or implied, under any patent, copyright, trademark, trade secret or
otherwise, except for the sole purposes of Supplier's performance of this
Agreement.
23.0 COMPLIANCE WITH LAWS
23.1 Supplier Obligations. Supplier agrees, in connection with the performance
of this Agreement, to comply with all applicable federal, state or local laws
and regulations, including, but not limited to, all applicable requirements of
the Fair Labor Standards Act, as amended, and of regulations and orders of the
United States Department of Labor issued thereunder and the Foreign Corrupt
Practices Act of 1977, as amended. Supplier agrees that it will not discriminate
against any employee or applicant for employment on account of race, color,
religion, sex, disability or national origin and will comply with the terms of
the Non-Discrimination Compliance Undertaking attached as Exhibit B hereto and
made a part of this Agreement. Supplier has, and shall maintain during the term
of this Agreement, all known permits or other appropriate records that may be
required by law. Notwithstanding any other provisions of this Agreement,
Supplier shall not export, directly or indirectly (including to foreign
nationals present in the United States), any United States source technical data
to any country outside the United States which export may be in violation of the
United States Export Control Laws and Regulations.
24.0 PLANT RULES
24.1 Bell Atlantic Rules; No Hazardous Materials. Supplier is responsible for
ensuring that all of Supplier's employees, agents, subcontractors or other
persons furnished by Supplier: (1) comply with all plant rules, regulations and
security procedures; and (2) work in harmony with all others working on the
property of Bell Atlantic and Bell Atlantic Affiliates. If Supplier installs any
Products on the premises of Bell Atlantic or a Bell Atlantic Affiliates,
Supplier shall be responsible for promptly removing all packing materials and
debris. Supplier may not bring any toxic or hazardous materials onto any
premises of Bell Atlantic or a Bell Atlantic Affiliate without the permission of
Bell Atlantic, and Supplier shall be responsible for removing any such toxic or
hazardous materials in accordance with all relevant laws and any additional
requirements of Bell Atlantic.
25.0 ASSIGNMENT
25.1 No Supplier Assignment. Supplier may not assign any right or interest under
this Agreement or an Order issued pursuant to this Agreement or delegate any
work or other obligation owed by Supplier under this Agreement without first
obtaining the written permission of Bell Atlantic, which Bell Atlantic may
refuse in its sole discretion. Any attempted assignment or delegation in
contravention of this section shall be void and ineffective.
25.2 Bell Atlantic Assignment. Bell Atlantic may freely assign all or part of
this Agreement.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 14
Agreement No. BA17136
Page 13 of 18
26.0 GOVERNING LAW
26.1 State Law and Forum. The validity, interpretation and performance of this
Agreement shall be governed by the procedural and substantive laws of the state
of New York without regard to conflict of laws. All actions under this Agreement
shall be brought in a court of competent subject matter jurisdiction in the
County of New York in the State of New York and both parties agree to accept the
personal jurisdiction of such court.
27.0 NON-WAIVER
27.1 No Waiver. No course of dealing or failure of either party to strictly
enforce the terms and conditions of this Agreement shall be construed as a
waiver of the future performance of that term or condition.
28.0 SEVERABILITY
28.1 Unenforceable Terms Severed. In the event that one or more provisions
contained in this Agreement are for any reason held to be unenforceable in any
respect, such unenforceability shall not affect any other term or condition of
this Agreement and this Agreement shall be construed as if the unenforceable
provision was not contained in this Agreement.
29.0 NOTICES
29.1 Method. All notices and other communications made under this Agreement
shall be effective when received by the other party at the address specified in
an Order, or if not specified in a n Order, at the address set forth below.
Notices must be sent by certified or registered mail (return receipt requested)
or to the telecopier number set forth below. The parties may, by providing seven
days' written notice, modify the addresses set forth below.
Notices to Bell Atlantic shall be sent to:
Bell Atlantic
1320 N. Court House Road, 4th floor
Arlington, VA 22201
Attn: Director, Corporate Sourcing, Switching
Telecopier No. (703) 974-1118
with a copy to:
Bell Atlantic Legal Department
1095 Avenue of the Americas
New York, NY 10036
Telecopier No. (212) 840-1110
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 15
Agreement No. BA17136
Page 14 of 18
Notices to Supplier shall be sent to:
World Wide Technology, Inc.
127 Weldon Parkway
St. Louis, MO 63043
Attn: Director, Network and Communications
Telecopier No. (314) 919-1630
30.0 STATE TAXES
30.1 Exemptions. Bell Atlantic may certify in an Order that a Product covered by
that Order is (i) (NT-1) for resale; (ii) (NT-2) for resale as a physical or
component part of tangible personal property or taxable services; (iii) (NT-3)
for direct use in research and development; (iv) (NT-4) for temporary storage
for subsequent use solely outside the state; (v) (NT-5) specifically exempt
under tax law. In those cases, Bell Atlantic will be responsible for any
applicable sales or use tax under the license or registration numbers of the
taxing jurisdictions listed: Connecticut-6219745-000; Maine-F300981;
Massachusetts-133-180-910; New York-13-3180910; Rhode Island X4624; and
Vermont-13-3180910. Bell Atlantic WILL FURNISH TAX EXEMPT CERTIFICATES UPON
REQUEST.
31.0 CAPTIONS AND INTERPRETATIONS
31.1 Convenience Only. The captions of sections in this Agreement are for
convenience only and may not accurately or fully describe all of the
requirements of a section. The captions do not limit or modify the terms of this
Agreement or any section of this Agreement.
31.2 Reasonable Consent. Whenever the provisions of this Agreement require one
party to obtain the permission or consent of the other party, unless specified
otherwise, the party from whom the consent or permission is needed must act
reasonably in granting or withholding such consent.
32.0 GIFTS AND GRATUITIES AND CONFLICTS OF INTEREST
32.1 Certification. Supplier certifies that, to the best of Supplier's knowledge
and belief, no economic, beneficial, employment or managerial relationship
exists between Supplier and any employee of Bell Atlantic or Bell Atlantic
Affiliates, or between Supplier and any relative of an employee of Bell Atlantic
or any Bell Atlantic Affiliates, which would tend in any way to influence such
employee in the performance of his or her duties on behalf of Bell Atlantic or
Bell Atlantic Affiliates in connection with the awarding, making, amending or
making determinations concerning the performance of this or any other agreement.
32.2 No Gratuities. The exchange or offering of any money, gift item, personal
service, entertainment or unusual hospitality by Supplier to Bell Atlantic and
Bell Atlantic Affiliates is expressly prohibited. This prohibition is equally
applicable to both party's officers, employees, agents or immediate family
members. Any violation of this provision constitutes a material breach of this
Agreement.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 16
Agreement No. BA17136
Page 15 of 18
32.3 Bell Atlantic Right To Terminate. Bell Atlantic may, by written notice to
Supplier, terminate Supplier's right to proceed under this Agreement without any
liability whatsoever on the part of Bell Atlantic if Bell Atlantic finds:
(a)that Supplier has violated the certification contained in this section
regarding any conflict of interest; or
(b)that gratuities (as discussed in this section) were offered or given by
Supplier, or any of Supplier's agents or representatives, to any officer or
employee of Bell Atlantic or Bell Atlantic Affiliates awarding, making, amending
an agreement or securing favorable treatment with respect to the performance of
such agreement.
32.4 Remedies. In the event this Agreement is terminated as provided in this
section, Bell Atlantic shall be entitled to pursue the same remedies against
Supplier as it could pursue in the event of a breach of the Agreement by
Supplier.
32.5 Cumulative Remedies. The rights and remedies of Bell Atlantic in this
clause shall not be exclusive and are in addition to any other rights and
remedies provided by law or under this Agreement.
33.0 SURVIVAL OF OBLIGATIONS
33.1 Continue Beyond Agreement. Supplier's obligations under this Agreement,
which by their nature would continue beyond the termination, cancellation or
expiration of this Agreement, shall survive termination, cancellation or
expiration of this Agreement.
34.0 INFORMAL MANAGEMENT ESCALATION
34.1 Informal Management Escalation. Should any disagreement, dispute, disputed
claim of breach, nonperformance, or repudiation arising from, related to or
connected with this Agreement or any of the terms and conditions hereof, or any
transactions hereunder ("Dispute") arise between Bell Atlantic and Supplier
either during this Agreement or after termination of this Agreement, either
party may give to the other notice of the Dispute, specifically referencing this
provision and request resolution of the Dispute. At the expiration of ten (10)
business days, unless it shall have been settled, such Dispute may be referred
by either party to the Bell Atlantic Sourcing Director and Supplier Supplier's
Contact for resolution. The parties agree to exchange relevant information and
cooperate in good faith to resolve the Dispute under this provision. If within
an additional ten (10) business days, such dispute shall not have been settled
the parties shall have the right to pursue such remedies as may be available at
law or in equity. The parties will not be prohibited from seeking injunctive
relief to preserve the status quo pending resolution under this provision.
34.2 Settlement Purposes. ALL DISCUSSIONS AND DOCUMENTS PREPARED PURSUANT TO ANY
ATTEMPT TO RESOLVE A DISPUTE UNDER THIS PROVISION ARE CONFIDENTIAL AND FOR
SETTLEMENT PURPOSES ONLY AND SHALL NOT BE ADMITTED IN ANY COURT OR OTHER FORUM
AS AN ADMISSION OR OTHERWISE
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 17
Agreement No. BA17136
Page 16 of 18
AGAINST A PARTY FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL AND STATE
COURT RULES.
35.0 PERIODIC REPORTS
Supplier agrees to render on or before the tenth day of the succeeding month, at
no charge to Bell Atlantic and in formats acceptable to Bell Atlantic, a report
of Bell Atlantic's purchasing activity hereunder. The format of this report
shall be mutually agreed upon by both parties. This report will identify at a
minimum: (i) the ship to location, (ii) Bell Atlantic's Order number, (iii)
company placing order, (iv) order date, (v) agreed to ship date, (vi) actual
ship date, for completed orders, (vii) quantity and configuration of Product(s)
ordered and shipped, (viii) dollar value for each order, and (ix) total dollar
value for the report month.
Supplier's report shall be mailed to:
Bell Atlantic Network Services, Inc.
ATTN: Mr. Lin Kerns
1320 N. Courthouse Rd., 4E1
Arlington, VA 22201
36.0 ACTIVITIES DONE BY OTHERS
If any part of the obligations of Supplier under this Agreement are dependent
upon activities done by others, Supplier shall promptly report to Bell Atlantic
any occurrence in these activities that may jeopardize Supplier's proper
performance hereunder. Supplier's silence shall constitute approval of
activities done by others as fit, proper, and suitable for Supplier's
performance under this Agreement.
37.0 ENTIRE AGREEMENT
37.1 Entirety. This Agreement constitutes the entire agreement between the
parties and shall not be modified or rescinded, except as is specifically set
out in the Agreement or by a writing signed by Supplier and Bell Atlantic. The
printed provisions on the reverse of a Bell Atlantic Order and all provisions on
Supplier's forms shall be deemed rejected by Bell Atlantic, and shall be void
and of no effect. The provisions of this Agreement supersede any and all prior
oral and written quotations, agreements, and understandings of the parties with
respect to the subject matter of this Agreement.
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 18
Agreement No. BA17136
Page 17 of 18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
WORLD WIDE TECHNOLOGY, INC. BELL ATLANTIC NETWORK SERVICES, INC.
/s/ Mark J. Catlano /s/ Paul M. Tassinari
- ---------------------------------- -----------------------------------
Signature Signature
Mark J. Catlano Paul M. Tassinari
- ---------------------------------- -------------------------------
Typed Name Typed Name
Director - Telco Business Unit for Vice President, Corporate Secretary
- ---------------------------------- -----------------------------------------
Title Title
January 28, 1999 January 28, 1999
- ---------------------------------- ------------------------------
Date Date
Not for use outside of Bell Atlantic or
its affiliates without prior written permission
<PAGE> 19
Agreement No. BA17136
Page 1 of 1
*Confidential treatment will be requested
<PAGE> 20
Agreement No. BA17136
Exhibit B
Page 1 of 4
EXHIBIT B
NON-DISCRIMINATION
COMPLIANCE UNDERTAKING
- ------------------------------------------------------------------------------
To the extent that this contract is subject to them, Supplier shall comply with
the applicable provisions of the following: Exec. Order No. 11246, Exec. Order
No. 11625, Exec. Order No. 12138, Exec. Order No. 11701, Exec. Order No. 11758,
Section 503 of the Rehabilitation Act of 1973 as amended by PL93-516, Vietnam
Era Veteran's Readjustment Assistance Act of 1974 and the rules, regulations and
relevant Orders of the Secretary of Labor pertaining to the Executive Orders and
Statutes listed above.
Monetary amounts or contractual or purchasing relationships, together with the
number of the Supplier's employees, determine which Executive Order provisions
are applicable. For contracts and orders valued at less than $2,500, none of the
clauses shall be considered a part of the contract. However, for contracts or
orders of/or which aggregate to $2,500 or more annually, the following table
describes the clauses which are included in the contract or order:
1. Inclusion of the "Equal Employment Opportunity" clause in all contracts and
orders.
2. Certification of non-segregated facilities.
3. Certification that an Affirmative Action program has been developed and is
being followed.
4. Certification that an annual Employers Information Report (EEO-1 Standard
form 100) is being filed.
5. Inclusion of the "Utilization of Minority and Women's Business Enterprises"
clause in all contracts and orders.
6. Inclusion of the "Minority and Women's Business Subcontracting Program"
clause in all contracts and orders.
7. Inclusion of the "listing of Employment Openings" clause in all contracts
and orders.
8. Inclusion of the "Employment of the Handicapped" clause in all contracts
and orders.
<TABLE>
<S> <C> <C> <C>
$2,500 TO $5,000 $5,000 TO $10,000 $10,000 TO $50,000 $50,000 TO $500,000
8 8 1, 2, 5, 6, 7, 8 1, 2, 3*, 4*, 5, 6, 7, 8
$500,000 OR MORE
1, 2, 3*, 4*, 5, 6, 7, 8
</TABLE>
* Applies only for business with 50 or more employees
Not for use outside of Bell Atlantic or its
affiliates without prior written permission
<PAGE> 21
Agreement No. BA17136
Exhibit B
Page 2 of 4
1. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS
In accordance with Executive Order 11246, dated September 24, 1965 and part 60-1
of Title 41 of the Code of Federal Regulations (Public Contracts and Property
Management, Office of Federal Contract Compliance, Obligations of Suppliers and
Subcontractors), as may be amended from time to time, the parties incorporate
herein by this reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
2. CERTIFICATION OF NON-SEGREGATED FACILITIES
The Supplier certifies that it does not and will not maintain any facilities it
provides for its employees in a segregated manner, or permit its employees to
perform their services at any location under its control, where segregated
facilities are maintained; and that it will obtain a similar certification,
prior to the award of any non-exempt subcontract.
3. CERTIFICATION OF AFFIRMATIVE ACTION PROGRAM
The Supplier affirms that it has developed and is maintaining an Affirmative
Action Plan as required by Part 60-2 of Title 41 of the Code of Federal
Regulations.
4. CERTIFICATION OF FILING OF EMPLOYERS INFORMATION REPORTS
The Supplier agrees to file annually on or before the 31st day of March complete
and accurate reports on Standard Form 100 (EEO-1) or such forms as may be
promulgated in its place.
5. UTILIZATION OF MINORITY AND WOMEN'S BUSINESS ENTERPRISES
A. It is the policy of the Government that minority and women's business
enterprises shall have the maximum practicable opportunity to participate in the
performance of the contract.
B. The Supplier agrees to use its best efforts to carry out this policy in the
award of its subcontracts to the fullest extent consistent with the efficient
performance of this contract. As used in the contract the term "minority or
women's business enterprise" means a business, at least 50 percent of which is
owned, controlled and operated by minority group members or women, or in the
case of publicly owned businesses, at least 51 percent of its stock is owned by
minorities or women. For the purposes of this definition, minority group members
are American: Blacks, Hispanics, Asians, Pacific Islanders, American Indians and
Alaskan Natives. Supplier may rely on written representation by subcontractors
regarding their status as minority or women's business enterprises in lieu of an
independent investigation.
6. MINORITY AND WOMEN'S BUSINESS ENTERPRISES SUBCONTRACTING PROGRAM
Not for use outside of Bell Atlantic or its
affiliates without prior written permission
<PAGE> 22
Agreement No. BA17136
Exhibit B
Page 3 of 4
A. The Supplier agrees to establish and conduct a program which will enable
minority and women's business enterprises (as defined in Paragraph 5) to be
considered fairly as subcontractors and suppliers under the contract. In this
connection, the Supplier shall:
1. Designate a liaison officer who will administer the Supplier's
minority and women's business enterprises in all "make or buy"
decisions.
2. Provide adequate and timely consideration of the potentialities of
known minority and women's business enterprises in all "make and buy"
decisions.
3. Assure that known minority and women's business enterprises will have
an equitable opportunity to compete for contracts, particularly by
arranging solicitations, time for preparation of bids, quantities,
specifications, and delivery schedules so as to facilitate the
participation of minority and women's business enterprises.
4. Maintain record showing (i) procedures which have been adopted to
comply with the policies set forth in this clause, including the
establishment of a source list of minority and women's business
enterprises, (ii) awards to minority and women's business enterprises
on the source list, and (iii) specific efforts to identify and award
contracts to minority and women's business enterprises.
5. Include the Utilization of Minority and Women's Business Enterprises
clause in subcontracts which offer substantial minority and business
women's business enterprises subcontracting opportunities.
6. Cooperate with the Government's Contracting Officer in any studies and
surveys of the Supplier's minority and business enterprises procedures
and practices that the Contract Officer may from time to time conduct.
7. Submit periodic reports of subcontracting to known minority and
women's business enterprises with respect to the records referred to
in subparagraph 4 above, in such a form and manner and at such time
(not more than quarterly) as the Contracting Officer may prescribe.
B. The Supplier further agrees to insert, in any subcontract hereunder which may
exceed $500,000 (or in the case of M/WBE, $1,000,000 in the case of contracts
for construction of any Public facility and which offer substantial
subcontracting possibilities) provisions which shall conform substantially to
the language of this agreement, including this paragraph (B).
7. LIST OF EMPLOYMENT OPENINGS FOR VETERANS
In accordance with Exec. Order 11701, dated January 24, 1973 and Part 60-250 of
Title 41 of the Code of Federal Regulations, as may be amended from time to
time, the parties incorporated herein by this reference the regulations and
contract clauses required by those provisions to be made part of Government
contracts and subcontracts.
Not for use outside of Bell Atlantic or its
affiliates without prior written permission
<PAGE> 23
Agreement No. BA17136
Exhibit B
Page 4 of 4
8. EMPLOYMENT OF THE HANDICAPPED
In accordance with Exec. Order 11758, dated January 15, 1974, and Part 60-741 of
Title 41 of the Code of Federal Regulations as may be amended from time to time,
the parties incorporated herein by this reference the regulations and contract
clauses required by those provisions to be made a part of Government contracts
and subcontracts.
Not for use outside of Bell Atlantic or its
affiliates without prior written permission
<PAGE> 1
EX. 10.12
AGREEMENT NO. C971312BC002
PRODUCT PURCHASE AGREEMENT
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
WORLD WIDE TECHNOLOGY, INC.
CONTRACT MANAGER: KATHY DEFORD, C.P.M.
CONFIDENTIAL
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
1. PARTIES......................................................................................................1
2. TERM.........................................................................................................1
3. PURCHASE AND DISTRIBUTION OF PRODUCT.........................................................................1
4. SOFTWARE LICENSE.............................................................................................2
5. CENTURY COMPLIANCE...........................................................................................3
*Confidential treatment will be requested
7. PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT...................................................................................................4
8. BILLING AND PAYMENT TERMS....................................................................................5
*Confidential treatment will be requested
*Confidential treatment will be requested
11. RECORDS AND REPORTS..........................................................................................6
12. BAR CODING...................................................................................................6
13. ELECTRONIC DATA INTERCHANGE..................................................................................6
14. PRECEDENCE OF DOCUMENTS......................................................................................6
15. DELIVERY.....................................................................................................7
16. PACKAGING....................................................................................................8
17. BILL OF SALE.................................................................................................8
18. INSPECTION AND ACCEPTANCE....................................................................................9
19. PRODUCT STANDARDIZATION......................................................................................9
*Confidential treatment will be requested
21. TRADEMARK LICENSE............................................................................................9
22. INFRINGEMENT................................................................................................10
23. CONFIDENTIAL INFORMATION....................................................................................10
</TABLE>
i CONFIDENTIAL
<PAGE> 3
<TABLE>
<S> <C>
24. PUBLICITY AND DISCLOSURE....................................................................................12
25. COMPLIANCE WITH LAWS........................................................................................13
26. FORCE MAJEURE...............................................................................................14
27. ASSIGNMENT..................................................................................................14
28. TAXES.......................................................................................................15
29. PLANT AND WORK RULES AND RIGHT OF ACCESS....................................................................15
30. INDEMNIFICATION AND INSURANCE...............................................................................16
31. RELATIONSHIP OF PARTIES.....................................................................................17
32. TOXIC SUBSTANCES AND HAZARDOUS PRODUCT......................................................................17
33. TERMINATION.................................................................................................17
34. DISPUTE RESOLUTION..........................................................................................18
35. NOTICES.....................................................................................................19
36. LABOR SERVICES..............................................................................................20
37. NONWAIVER...................................................................................................21
38. SEVERABILITY................................................................................................21
39. SECTION HEADINGS............................................................................................21
40. SURVIVAL OF OBLIGATIONS.....................................................................................21
41. CHOICE OF LAW AND JURISDICTION..............................................................................21
42. ENTIRE AGREEMENT............................................................................................21
</TABLE>
SIGNATURES
EXHIBIT A: GTE AFFILIATED ENTITIES
EXHIBIT B:
ii CONFIDENTIAL
<PAGE> 4
EXHIBIT C: BAR CODING
EXHIBIT D: EDI PURCHASE ORDERS
EXHIBIT E: SHIPPING AND CARRIER ROUTING INSTRUCTION
EXHIBIT F: PRODUCT DELIVERY INTERVAL
EXHIBIT G: STANDARDIZATION POLICIES, PROCEDURES AND TERMS
EXHIBIT H: [*Confidential treatment requested].
EXHIBIT I: CENTURY COMPLIANCE
iii CONFIDENTIAL
<PAGE> 5
PRODUCT PURCHASE AGREEMENT
1. PARTIES
(a) This Product Purchase Agreement (Agreement) is made between World
Wide Technology, Inc., a Missouri corporation, with offices at 127
Weldon Parkway, St. Louis, Missouri 63043-3101 (SELLER) and GTE
Communication Systems Corporation, a Delaware corporation, acting
through its GTE Supply Division, with offices at 700 Hidden Ridge,
Irving, Texas 75038, for the benefit of itself and the GTE
affiliated entities (AFFILIATES) listed in Exhibit A (CUSTOMER),
which may be changed by CUSTOMER upon written notice to SELLER.
(b) CUSTOMER or AFFILIATES may purchase SELLER's products (PRODUCT),
[*Confidential treatment requested], on a nonexclusive basis from
SELLER on the same terms and conditions as CUSTOMER and an
AFFILIATE shall also be a CUSTOMER under this Agreement.
2. TERM
This Agreement shall be effective on November 1, 1997, and shall
continue for a period of five (5) years unless earlier terminated or
modified. This Agreement shall be automatically terminated unless
renewed by CUSTOMER with at least thirty (30) days' written notice to
SELLER before the expiration of the term.
3. PURCHASE AND DISTRIBUTION OF PRODUCT
(a) This Agreement does not by itself order any PRODUCT. CUSTOMER
shall order PRODUCT by submitting a purchase order to SELLER in
accordance with Section 7, PURCHASE ORDERS; CANCELLATION OF
PURCHASE ORDERS; REVOCATION OF ACKNOWLEDGEMENT and Section 13,
ELECTRONIC DATA INTERCHANGE. If a purchase order submitted by
CUSTOMER to SELLER (i) conforms to the requirements of Section 7,
PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT and Section 13, ELECTRONIC DATA INTERCHANGE, (ii)
CONTAINS A PRODUCT or within the guidelines for PRODUCT quantities
and for the price or prices specified in [*Confidential treatment
requested] and (iii) does not purport to make a material change
to any of the terms of this Agreement applicable to such PRODUCT
purchase order (including a material change in the items
enumerated in Section 14.(a)(i-x)), SELLER shall be obligated to
acknowledge the purchase order within ten (10) days of receipt,
without conditioning such acknowledgement on the acceptance by
CUSTOMER of any terms inconsistent with or in addition to those
set forth in this Agreement. Upon acknowledgement, a purchase
order and the related acknowledgement shall constitute a binding
contract for the purchase and sale of the applicable PRODUCT
governed by the provisions of this Agreement, as such provisions
may be modified as provided herein. Under special circumstances,
PRODUCT may be purchased pursuant to the terms of this Agreement
at prices quoted by SELLER in response to a specific request from
CUSTOMER.
CONFIDENTIAL
<PAGE> 6
(b) CUSTOMER may purchase the PRODUCT for its own use or for resale.
(c) This Agreement is nonexclusive and shall not be construed to (i)
require CUSTOMER to purchase any specific amount of PRODUCT, or
(ii) require CUSTOMER to sell any, all or a portion of PRODUCT it
orders, or (iii) unless otherwise specified in this Agreement,
restrict the purchase, resale and/or distribution of PRODUCT to
any geographic area.
4. SOFTWARE LICENSE
If the PRODUCT includes software, SELLER grants to CUSTOMER a license
under the following terms:
(a) Definitions
(1) The term "Software" means any Software programs, in
source, object, or other form, including firmware and
documentation [*Confidential treatment requested],
or identified in a purchase order.
(2) The term "Use" shall mean: (i) the reading by any
authorized users into or out of computer hardware memory
of the Software and the execution of the Software whether
in whole or in part by any individual having authorized
access to any computer on which the Software is operated
and shall include employees of CUSTOMER, its agents, or
contractors and/or in the case of CUSTOMER providing
services to third parties, the third parties' employees,
agents, or contractors; (ii) to transfer into, and store
in, equipment selected by the CUSTOMER all or any portion
of the Software; (iii) to compile and decompile, assemble
or disassemble, or otherwise transform the Software form
source, object or other form into source, object or other
form; (iv) and to process and execute instructions,
statements and data included in, or input to, the
Software.
(3) The Term "Specifications" shall mean specifications for
the Software as set forth in a purchase order, as well as
SELLER's then current published specifications and user
documentation for the Software.
(b) The term PRODUCT includes any Software (operating program in
machine readable form and feature descriptions or firmware)
furnished with or embedded in PRODUCT. Title to such Software
shall remain with manufacturer. SELLER warrants that manufacturer
has granted to SELLER a nonexclusive, nontransferable license to
grant a nonexclusive, nontransferable sublicense to CUSTOMER of
SELLER and to any subsequent purchaser, assignee or lessee from
such CUSTOMER of the PRODUCT in which or with which such Software
is furnished. For the life or purchased PRODUCT, or during the
term PRODUCT is leased, as applicable, SELLER grants to CUSTOMER
and any subsequent purchaser, assignee, or lessee of said PRODUCT
a nonexclusive license to use said Software in connection with
PRODUCT with which it is delivered. CUSTOMER and any subsequent
purchaser, assignee, or lessee may copy the Software for use on
such PRODUCT with which it was originally delivered for archival
purposes or on an
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alternate PRODUCT for disaster recovery purposes, as applicable,
but shall not otherwise knowingly reproduce the original Software
or make copies of the Software for distribution to others.
CUSTOMER and any subsequent purchaser, assignee or lessee may add
to, delete from or modify the Software, in any manner, but no
changes, however extensive, shall alter manufacturer's title to
such original Software. Title to any such modification or addition
to the Software shall remain in the entity which creates the
modification or addition.
(c) The price set forth in a purchase order under this Agreement or in
an Exhibit attached includes the fee for the Software furnished
and the license granted.
(d) Additional SOFTWARE LICENSE responsibilities and obligations of
the manufacturer(s) of PRODUCT(s) are contained in EXHIBIT H.
5. CENTURY COMPLIANCE
SELLER agrees to comply with the provisions set forth in Exhibit I,
CENTURY COMPLIANCE.
*Confidential treatment will be requested
3 CONFIDENTIAL
<PAGE> 8
[*Confidential treatment requested].
7. PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT
(a) A purchase order means an order, form, memorandum, written
communication and/or electronic transmission that CUSTOMER may
deliver to SELLER for the purchase of PRODUCT. The following
information shall be contained in the purchase order:
(1) Description of PRODUCT, including any numerical
alphabetical identification, including SELLER's part
number, referenced in the price list herein;
(2) Requested delivery date;
(3) Applicable price;
(4) Location to which the PRODUCT is to be shipped;
(5) Location to which invoices shall be rendered for payment;
(6) CUSTOMER's purchase order number;
(7) Configurations (if applicable);
(8) Delivery requirements; and
(9) A reference to any applicable quotation given by SELLER to
CUSTOMER. SELLER shall acknowledge purchase orders within
ten (10) days of receipt of the purchase orders.
(b) Purchase orders may be mailed, sent by facsimile transmission or
electronic data interchange in accordance with Section 13,
ELECTRONIC DATA INTERCHANGE.
(c) SELLER may enforce each purchase order only against the AFFILIATE
that has submitted the purchase order.
(d) If an AFFILIATE shall be in material breach or default of this
Agreement, including, but not limited to, timely payment for
PRODUCT purchased and such breach shall continue for a period of
thirty (30) days after CUSTOMER's receipt of SELLER's written
notice, then, in addition to all other rights and remedies of law
or equity or otherwise, SELLER shall have the right to suspend
delivery of PRODUCT on outstanding purchase orders or revoke
existing acknowledgements only with
4 CONFIDENTIAL
<PAGE> 9
respect to the AFFILIATE. Default by an AFFILIATE shall not affect
any other AFFILIATE party to this Agreement.
(e) If SELLER shall be in material breach or default of this
Agreement, and such breach shall continue for a period of thirty
(30) days after SELLER's receipt of CUSTOMER's written notice
thereof, then, in addition to all other rights and remedies of law
or equality or otherwise, CUSTOMER shall have the right to
immediately cancel all applicable purchase orders without any
obligation or liability to SELLER for said cancellation. However,
if SELLER fails to tender delivery of PRODUCT on or before the
ship date stated on SELLER's acknowledgment, then CUSTOMER shall
have the right to immediately cancel all applicable purchase
orders without further obligation or liability to SELLER for said
cancellation or any obligation to provide SELLER a time period to
cure said breach.
8. BILLING AND PAYMENT TERMS
(a) SELLER shall invoice CUSTOMER for each shipment made or service
rendered (unless another address is specified in writing by
CUSTOMER), at the address listed on CUSTOMER's purchase order.
Invoices shall include, but not be limited to: (i) purchase order
number; (ii) purchase order line number; (iii) PRODUCT
identification number; (iv) ship to address; (v) quantity shipped
and billed; (vi) net invoice amount; (vii) net unit cost; and
(viii) any special instructions requested by CUSTOMER.
(b) Payment shall be due thirty (30) days from the date of receipt of
goods or receipt of SELLER's invoice, whichever occurs later, or
if the performance of service is required, the completion and
acceptance of such services by CUSTOMER.
*Confidential treatment will be requested
5 CONFIDENTIAL
<PAGE> 10
11. RECORDS AND REPORTS
(a) SELLER shall maintain complete and accurate records of all
invoices, all amounts billable to and payments made by CUSTOMER,
in accordance with generally accepted accounting practices. SELLER
shall retain and make available upon request such records for a
period of three (3) years from the date of final shipment of
PRODUCT or rendering of services covered by this Agreement.
(b) When requested by CUSTOMER, SELLER shall, for purchase orders
placed directly with SELLER by an AFFILIATE (other than GTE
Supply), provide CUSTOMER a quarterly purchase report by ordering
location, listing PRODUCT purchased under this Agreement,
description, part number, quantities shipped, associated net
prices and certification of Women and Minority Owned Business
Enterprise (WMBE) or Minority Owned Business Enterprise (MBE), if
requested. CUSTOMER shall specify the address for this report.
(c) When requested by SELLER, CUSTOMER shall, for resale purchase
orders shipped from GTE Supply's inventory, provide SELLER, at the
address referenced in Section 35, NOTICES, a monthly report
(point-of-sale) by customer, listing PRODUCT shipped, part number,
description, quantities shipped and associated net prices.
12. BAR CODING
SELLER agrees to participate with CUSTOMER in the development of a bar
coding program in accordance with GTE standard set forth in Exhibit C.
13. ELECTRONIC DATA INTERCHANGE
SELLER agrees to participate with CUSTOMER in the development of an
Electronic Data Interchange (EDI) for the communication of purchase
orders, acknowledgements, subsequent invoicing or other data that may
be communicated between CUSTOMER and SELLER. SELLER further agrees to
the terms and conditions as set forth in Exhibit D for the transmission
of such electronically communicated data.
14. PRECEDENCE OF DOCUMENTS
(a) All quotations, purchase orders, acknowledgements, and invoices
issued pursuant to this Agreement shall be subject to the
provisions contained in this Agreement. The terms and conditions
of this Agreement will control over any conflicting or
inconsistent terms contained in any quotation, purchase order,
acknowledgement or invoice. Unless SELLER's rejection is forwarded
to CUSTOMER with ten (10)
6 CONFIDENTIAL
<PAGE> 11
days of receipt of the purchase order, the following provisions,
as they relate to the PRODUCT ordered pursuant to a particular
purchase order, can be changed by language contained in that
purchase order; (i) the quantity, (ii) special quoted price, (iii)
payment terms, (iv) warranty period, (v) packaging instructions,
(vi) shipping instructions, (vii) title and risk of loss, (viii)
additional documentation requirements, (ix) delivery date, or (x)
description of the PRODUCT.
(b) Except for the changes enumerated in Section 14.(a)(i-x) above, no
modification to this Agreement or additional terms contained in
any quotation, purchase order, acknowledgment, or invoice shall be
valid without the prior written approval of the officer who
executed this Agreement on behalf of CUSTOMER.
15. DELIVERY
(a) Unless otherwise specified in the applicable purchase order, title
to a PRODUCT sold pursuant to this Agreement shall pass at the
time of shipment by SELLER as described in Section 15.(b). Any
loss or damage to a PRODUCT prior to the passing of title shall be
for the account and risk of SELLER. Any loss or damage to a
PRODUCT after the passing of title shall be for the account and
risk of CUSTOMER. Nothing contained in this Section 15.(a) shall
be construed to reduce or otherwise affect the obligations of
SELLER to obtain insurance covering any PRODUCT shipped by it to
CUSTOMER.
(b) Shipments of PRODUCT shall be made FOB Origin, freight collect or
as otherwise specified on individual purchase orders. When
CUSTOMER requests SELLER to arrange the transportation of the
PRODUCT, SELLER shall ship PRODUCT freight collect in accordance
with [*Confidential treatment requested], unless
otherwise specified on CUSTOMER's purchase order. If SELLER is
instructed by CUSTOMER to ship prepaid and added to the invoice,
SELLER shall select a carrier based on the best rate as negotiated
by SELLER, and CUSTOMER shall only pay SELLER's net transportation
costs, that include, but are not limited to, all applicable
discounts, allowances and refunds.
(c) Failure of SELLER to ship PRODUCT in accordance with CUSTOMER's
freight routing instructions shall result in charge-backs to
SELLER for excess freight charges.
(d) Unless instructed otherwise by CUSTOMER, SELLER shall, for
purchase orders placed, (i) see that all subordinate documents
bear CUSTOMER's purchase order number; (ii) enclose a packing list
with each shipment and when more than one package is shipped,
identify the one containing the packing list; (iii) mark
CUSTOMER's purchase order number on all packages and shipping
papers; (iv) render invoices showing CUSTOMER's purchase order
number; (v) render separate invoices for each shipment or purchase
order; (vi) forward shipping notices with invoices; (vii) invoice
CUSTOMER by mailing or otherwise transmitting invoices, bills, and
notices to the billing address on the purchase order; and (viii)
make available a bill of lading upon request.
7 CONFIDENTIAL
<PAGE> 12
(e) Standard delivery intervals for PRODUCT shall be specified in
Exhibit F and may be amended only by a written document signed by
both parties. Standard delivery intervals begin from the date of
SELLER's receipt of CUSTOMER's purchase order.
(f) SELLER shall ship PRODUCT to CUSTOMER within (i) the delivery
intervals specified in Exhibit F (which do not include in-transit
interval), or (ii) as otherwise provided by SELLER to CUSTOMER in
a firm price quotation, purchase order acknowledgment or other
written means (provided that such time period is not longer than
the time period specified in Exhibit F without CUSTOMER's written
request or agreement) with a minimum ninety-six percent (96%) on
time shipping performance service level. On time shipping
performance service level shall be calculated as total line items
shipped complete, as compared to the total number of line items
ordered that have been purchase for delivery within SELLER's
stated delivery interval. SELLER shall provide CUSTOMER, on a
quarterly basis, at the addresses as referenced in Section 35,
NOTICES, shipping reports delineating the following information:
(1) CUSTOMER's purchase order number;
(2) Date CUSTOMER's purchase order received by SELLER.
(3) Date purchase order shipped complete from SELLER;
(4) Total number of line items scheduled for shipment in the
period;
(5) Total number of line items shipped complete and on time in
the period; and
(6) Percent (%) of line items shipped complete and on time in
the period.
16. PACKAGING
PRODUCT shall be packaged for shipment, at no additional charge, in
suitable containers that provide protection against damage during the
domestic shipment, handling and storage in reasonably dry, unheated
quarters. [*Confidential treatment will be requested.] Corrugated
shipping containers shall comply with the requirements of Item 222 of
the National Motor Freight Code, Series NMFC 100-S, which may be
amended from time to time. Containers of any type that are too heavy or
too large to be palletized shall be skidded to facilitate fork truck or
mechanized handling.
17. BILL OF SALE
SELLER shall, upon request and after payment by CUSTOMER, execute and
deliver to CUSTOMER a bill of sale or similar document evidencing
conveyance of PRODUCT, free and clear of all liens, security interests
and encumbrances.
8 CONFIDENTIAL
<PAGE> 13
18. INSPECTION AND ACCEPTANCE
(a) All PRODUCT ordered pursuant to this Agreement shall be subject to
inspection by CUSTOMER after delivery to determine conformity with
CUSTOMER's purchase order and SELLER's advertised or published
specifications. If the PRODUCT delivered does not so conform,
CUSTOMER shall have the right to reject such PRODUCT. PRODUCT that
has been delivered and rejected, in whole or in part, shall be
returned to SELLER at SELLER's risk and expense. CUSTOMER shall
have a period of one hundred twenty (120) days following arrival
of standard PRODUCT and ninety (90) days following arrival of
custom PRODUCT at the delivery destination specified by CUSTOMER
within which to inspect the PRODUCT for conformity with CUSTOMER's
purchase order and SELLER's advertised and published
specifications and to provide SELLER with written notice of any
discrepancy or rejection. CUSTOMER shall notify SELLER and arrange
for the return of PRODUCT as required.
(b) Inspection or failure to inspect on any occasion shall not affect
CUSTOMER's rights under the "WARRANTY" provisions of Exhibit H or
any other rights or remedies available to CUSTOMER, whether at law
or in equity.
19. PRODUCT STANDARDIZATION
During the term of this Agreement, SELLER shall comply with CUSTOMER's
standardization policies, procedures and terms as set forth in Exhibit
G.
*Confidential treatment will be requested.
,
21. TRADEMARK LICENSE
SELLER grants to CUSTOMER the nonexclusive right to use SELLER's trade
names and trademarks in marketing SELLER's PRODUCT. CUSTOMER agrees to
designate the PRODUCT properly and depict marks accurately.
9 CONFIDENTIAL
<PAGE> 14
22. INFRINGEMENT
(a) SELLER agrees to indemnify, defend and hold harmless CUSTOMER and
its Affiliates, shareholders, directors, officers, employees,
contractors, agents and other representatives from all demands,
claims, actions, causes of action, proceedings, assessments,
losses, damages, liabilities, settlements, judgments, fines,
penalties, interest, cost and expenses (including fees and
disbursements of counsel) arising from or relating to any actual
or alleged infringement or misappropriation of any patent,
trademark, copyright, trade secret or any actual or alleged
violation of any other intellectual property rights arising from
or in connection with the PRODUCT provided or the services
performed under this Agreement regardless of whether such PRODUCT
or services form the entire basis or only a portion of the basis
for such claims of infringement, misappropriation or violation.
Notwithstanding anything to the contrary contained in this
Agreement (including, but not limited to, Section 30,
INDEMNIFICATION AND INSURANCE), the provisions of this Section
22.(a) shall govern the rights of CUSTOMER and its Affiliates,
shareholders, directors, officers, employees, contractors, agents
and other representatives to indemnification for claims of
infringement, misappropriation or violation of intellectual
property rights.
(b) Except for the negligence provisions, the procedures set forth in
Section 30, INDEMNIFICATION AND INSURANCE, shall apply in the case
of any claims of infringement, misappropriation or violation of
intellectual property rights for which indemnification will be
sought.
(c) Additional INFRINGEMENT responsibilities and obligations for the
manufacturer(s) of the PRODUCT(s) are contained in EXHIBIT H.
23. CONFIDENTIAL INFORMATION
(a) In order for the parties to perform their respective obligations
under this Agreement, it may be necessary for either party to
disclose to the other technical, customer, personnel and/or
business information in written, graphic, oral or other tangible
or intangible forms including, but not limited to, specifications,
records, data, computer programs, drawings, schematics, know-how,
notes, models, reports and samples. Such information may contain
proprietary or confidential material, or material subject to
applicable laws regarding secrecy of communications or trade
secrets (Confidential Information).
(b) Each party acknowledges and agrees:
(1) That all Confidential Information acquired by either party
from the other shall be and shall remain the exclusive
property of the disclosing party;
(2) To identify in writing as confidential or proprietary, or
mark as confidential or proprietary, any information that
either party deems to be Confidential Information;
10 CONFIDENTIAL
<PAGE> 15
(3) That information that is disclosed orally shall not be
considered Confidential Information unless it is reduced to
writing or to a written summary that identifies the
orally-disclosed topics to be considered as Confidential
Information and such writing is provided to the recipient
at the time of disclosure or within thirty (30) days
thereafter.
(4) To receive in confidence any Confidential Information; to
limit access to such Confidential Information to authorized
employees who have a need to know the Confidential
Information in order for the party to perform its
obligations under this Agreement and who have been informed
of the confidential and proprietary nature; not to
disclose, reveal or divulge any Confidential Information or
authorize any other person to do so except (i) as
specifically approved in writing by the disclosing party or
(ii) as required in connection with the due and proper
performance by the receiving party of its obligations under
this Agreement (which shall not be deemed to include
disclosure to consultants, advisors or other third parties
which are not full-time, regular employees of the receiving
party);
(5) To use such Confidential Information only for the purposes
of performing their obligations under this Agreement and
for such other purposes as may be agreed upon between the
parties in writing;
(6) If a receiving party receives a request to disclose any
Confidential Information (whether pursuant to a valid and
effective subpoena, an order issued by a court or other
governmental authority of competent jurisdiction or
otherwise) on advice of legal counsel that disclosure is
required under applicable law, such party agrees that,
prior to disclosing any Confidential Information, it shall
(i) notify the disclosing party of the existence and terms
of such request or advice, (ii) cooperate with the
disclosing party in taking legally available steps to
resist or narrow any such request or to otherwise eliminate
the need for such disclosure, if requested to do so by the
disclosing party, and (iii) if disclosure is required, use
its best efforts to obtain a protective order or other
reliable assurance that confidential treatment will be
afforded to such portion of the Confidential Information as
is required to be disclosed;
(7) Upon request of the disclosing party, to return all
Confidential Information to such party, or to destroy any
documents, computer media or records, in written, graphic,
or other tangible form, that contain any Confidential
Information;
(8) That the obligations with respect to Confidential
Information shall extend for a period of five (5) years
following the date of initial disclosure of that
Confidential Information, and such obligations shall extend
beyond completion of the term of this Agreement; and
(9) That nothing contained in this Section 23 shall be
construed as a license or permission to make, use, or sell
the Confidential Information or products derived therefrom.
11 CONFIDENTIAL
<PAGE> 16
(c) The obligations contained in this Section 23 do not apply to
Confidential Information that:
(1) As shown by reasonably documented proof, was in the
receiving party's possession prior to receipt thereof from
the disclosing party;
(2) As shown by reasonably documented proof, was received by
one party in good faith from a third party not subject to a
confidential obligation to the other party;
(3) Now is or later becomes publicly known through no breach of
confidential obligation by the receiving party;
(4) Is disclosed pursuant to a requirement imposed by a
governmental agency or is otherwise required to be
disclosed by operation of law, provided that the party
receiving the request for the information has fully
complied with its obligations under Section 23.(b)(6);
(5) Was developed by the receiving party without the developing
persons having access to any of the Confidential
Information received from the other party;
(6) Is authorized in writing by the disclosing party to be
released or is designated in writing by the source as no
longer being confidential or proprietary.
(d) It is agreed that a violation of any of the provisions of this
Section 23 will cause irreparable harm and injury to the
disclosing party and that party shall be entitled, in addition to
any other rights and remedies it may have at law or in equity, to
seek an injunction enjoining and restraining the receiving party
from doing or continuing to do any such act and any other
violations or threatened violations of this Section 23.
24. PUBLICITY AND DISCLOSURE
Each party agrees not to provide copies of this Agreement, or otherwise
disclose the terms of this Agreement, to any third party without the
prior written consent of the other party; provided, however, that
CUSTOMER may, without obtaining SELLER's consent, provide copies or
make disclosures to prospective purchasers of the business of CUSTOMER
or of any AFFILIATE; or for the purpose of obtaining third party
financing; and any regulatory or judicial body requesting such
information. The parties further agree to submit to one another, for
written approval, all advertising, sales promotion, press releases and
other publicity matters relating to the PRODUCT furnished or the
services performed pursuant to this Agreement, when its respective name
or mark is mentioned or language from which the connection of said name
or mark may be inferred or implied. The parties further agree not to
publish or use such advertising, sales promotions, press releases, or
publicity matters without such prior written approval. Any approval
required under this Section shall not be unreasonably withheld or
delayed by either party.
12 CONFIDENTIAL
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25. COMPLIANCE WITH LAWS
(a) SELLER shall comply with the provisions of all applicable federal,
state, county and local laws, ordinances, regulations and codes
(including procurement of required permits or certificates) in
manufacturing, assembling, selling and providing PRODUCT and in
performing its other obligations under this Agreement, including,
but not limited to, the standards promulgated under the
Occupational Safety and Health Act, Executive Order 11246, as
amended, Section 503 of the Vocational Rehabilitation Act of 1973,
as amended, the Vietnam Era Veterans Readjustment Assistance Act
of 1974, the Immigration Reform and Control Act of 1986, the Civil
Rights Acts of 1964 and 1991, the Americans with Disabilities Act,
the Age Discrimination in Employment Act, and all rules and
regulations relative to these Acts and other applicable equal
employment opportunity laws, rules and regulations, which are
expressly incorporated herein by reference. Irrespective of
whether a specification is furnished, if PRODUCT or containers
furnished are required to be constructed, packaged, labeled, or
registered in a prescribed manner, SELLER shall comply with
applicable federal, state or local laws. SELLER shall indemnify
CUSTOMER against all claims, loss or damage sustained because of
its noncompliance.
(b) If any persons furnished under the Agreement by SELLER have a
disability as defined in the Americans with Disabilities Act, 42
U.S.C.A. 12101 et seq. (the ADA), SELLER shall, where required by
Title I of the ADA and at its sole expense, provide "reasonable
accommodations" that may be required under Title I of the ADA
including, but not limited to, "auxiliary aids and services" to
make aural, visual materials or interpreters available to
individuals furnished by SELLER with impairments so that such
individuals are able to perform the essential functions of the job
they are contracted to perform. SELLER further agrees to indemnify
and defend CUSTOMER for any losses, fines, reasonable attorney
fees, or other penalties that may be incurred or assessed upon
CUSTOMER due to SELLER's failure to comply with the provisions of
the Title I of the ADA with respect to the persons furnished by
SELLER.
(c) PRODUCT furnished shall comply, to the extent applicable, with the
requirements of the Federal Communications Commission's Rules and
Regulations, as may be amended, including those sections
concerning the labeling of such PRODUCT and the suppression of
radiation to specified levels. If the PRODUCT generates
interference harmful to radio communications, and such PRODUCT was
installed in accordance with such Rules and Regulations, then
SELLER shall provide to CUSTOMER methods for suppressing the
interference. If the interference cannot be reasonably suppressed,
SELLER shall accept return of the PRODUCT, refund to CUSTOMER the
price paid for the PRODUCT and bear all expenses for removal and
shipment of such PRODUCT. Nothing herein shall be deemed to
diminish or otherwise limit SELLER's obligations under the
"WARRANTY" PROVISIONS of Exhibit H herein or any other rights or
remedies available to CUSTOMER, whether at law or in equity.
13 CONFIDENTIAL
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26. FORCE MAJEURE
(a) 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, explosion, war,
embargo, government requirement, civil or military authority, acts
of God, strikes, slowdowns, picketing, boycotts, or any other
circumstances beyond its reasonable control and not involving any
fault or negligence of the party affected (Condition). If any such
Condition occurs, the party delayed or unable to perform shall
promptly give written notice to the other party and, if such
Condition remains at the end of thirty (30) days, the party
affected by the other's delay or inability to perform may elect to
(i) terminate such purchase order or part thereof, or (ii) suspend
such purchase order for the duration of the Condition, and if
CUSTOMER is the suspending party, buy elsewhere comparable
material to be sold under such purchase order, and apply to any
commitment the purchase price of such purchase, and resume
performance of such purchase order once the Condition ceases, with
an option in the affected party to extend the period of this
Agreement up to the length of time the Condition endured.
(b) Unless written notice is given within thirty (30) days after the
affected party is notified of the Condition, (a)(ii) above shall
be deemed selected.
27. ASSIGNMENT
(a) The rights and obligations of the parties shall neither be
assigned nor delegated without the prior written consent of the
other party. However, any party may assign or delegate its
respective rights and obligations, in whole or in part, to any
parent, subsidiary or affiliate of that party that was such a
parent, subsidiary or affiliate at the time of execution of this
Agreement; provided that the assigning party gives the other
thirty (30) days' prior written notice and the assignee agrees to
be bound by the terms of this Agreement.
(b) The limitation on assignment does not apply to an assignment
confined solely to monies due or to become due under this
Agreement, provided the party is given thirty (30) days' prior
written notice of such assignment. An assignment of monies shall
be void to the extent that it attempts to impose upon the party
obligations to the assignee in addition to the payment of such
monies, or to preclude the party from dealing solely and directly
with the other in all matters, including negotiation of amendments
or settlement of amounts due, or it gives rise to any additional
rights or defenses available to the assignee that were not
available to the other party.
(c) If CUSTOMER sells, exchanges or otherwise disposes of all or a
portion of the assets of, or CUSTOMER's interest in, any business
unit in which PRODUCT are used, then CUSTOMER shall have the
right, upon written notice to SELLER, to assign to such third
party all licenses and rights granted under this Agreement with
respect to such PRODUCT; provided that the third party agrees to
be bound by all obligations of CUSTOMER to SELLER that pertain to
the PRODUCT.
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(d) CUSTOMER may assign to a leasing company CUSTOMER's right to
purchase PRODUCT under the terms and conditions of this Agreement
for CUSTOMER's internal use.
28. TAXES
CUSTOMER shall be liable for and shall reimburse SELLER for payments of
Federal Manufacturers' and Retailers' Excise Taxes and state and local
sales and use taxes, as applicable, with respect to transactions under
this Agreement. Taxes payable by CUSTOMER shall be separately stated in
SELLER's invoices and shall not be included in SELLER's prices.
CUSTOMER shall not be liable for any tax for which a valid exemption
certificate acceptable to the applicable state or local taxing
authorities is furnished by CUSTOMER to SELLER. CUSTOMER's purchase
order may provide SELLER additional tax instruction as allowed by law
including, but not limited to, CUSTOMER's accrual and payment of taxes
and/or special jurisdictional exemptions.
29. PLANT AND WORK RULES AND RIGHT OF ACCESS
(a) The respective agents and employees of the parties, while on the
premises of the other, shall comply with all plant rules,
regulations and reasonable company standards for security,
including (when required by U. S. government regulations)
submission of satisfactory clearance from U. S. Department of
Defense and other federal authorities concerned.
(b) Each party shall permit reasonable access during normal working
hours to its facilities in connection with the work. No charge
shall be made for such visits. Reasonable prior notice shall be
given when access is required.
(c) If SELLER is given access, whether on-site or through remote
facilities, to any CUSTOMER computer or electronic data storage
system in order for SELLER to accomplish the work called for in
this Agreement, SELLER shall limit such access and use solely to
perform work within the scope of this Agreement and shall not
access or attempt to access any computer system, electronic file,
Software or other electronic services other than those
specifically required to accomplish the work required under this
Agreement. SELLER shall limit such access to those of its
employees whom CUSTOMER has authorized in writing to have such
access in connection with this Agreement, and shall strictly
follow all CUSTOMER's security rules and procedures for use of
CUSTOMER's electronic resources. All user identification numbers
and passwords disclosed to SELLER and any information obtained by
SELLER as a result of SELLER's access to and use of CUSTOMER's
computer and electronic data storage systems shall be deemed to
be, and shall be treated as, CUSTOMER Confidential Information
under applicable provisions of this Agreement. SELLER agrees to
cooperate with CUSTOMER in the investigation of any apparent
unauthorized access by SELLER to CUSTOMER's computer or electronic
data storage systems or unauthorized release of Confidential
Information by SELLER.
15 CONFIDENTIAL
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30. INDEMNIFICATION AND INSURANCE
(a) SELLER shall indemnify, defend, and hold harmless CUSTOMER and its
affiliates, officers, agents, and employees, from all claims,
suits, actions, demands, damages, liabilities, expenses (including
fees and disbursements of counsel), judgments, settlements and
penalties of every kind based on (i) personal injury, death, or
property damage to the extent any of the foregoing is proximately
caused by either any defective PRODUCT provided by SELLER, its
officers, employees, subcontractors or agents, or by the negligent
or willful acts or omissions of SELLER, its officers, employees,
subcontractors or agents, or (ii) strict liability in tort or
products liability of any other kind in connection with any
PRODUCT provided by SELLER, its officers, employees,
subcontractors or agents or the use, resale or distribution of any
such PRODUCT by CUSTOMER. The foregoing indemnity, to the extent
permitted by law, shall apply in the case of all claims that arise
from the negligence, misconduct or other fault of CUSTOMER,
provided, however, that if a claim is the result of the joint
negligence, joint misconduct, or joint fault of SELLER and
CUSTOMER, the amount of the claim for which CUSTOMER is entitled
to indemnification shall be limited to that portion of such claim
that is attributable to the negligence, misconduct or other fault
of SELLER. The obligations of this provision are in addition to
SELLER obligation to provide insurance and shall not be limited by
any limitation on the amount or type of damages, compensation or
benefits payable by SELLER under the Worker's Compensation Acts,
Longshoremen and Harborworker's Act, Disability Benefits Act or
any other employee benefit act.
(b) CUSTOMER shall promptly notify SELLER in writing of any suits,
claims or demands covered by this indemnity. Promptly after
receipt of such notice, SELLER shall assume the defense of such
claim with counsel reasonably satisfactory to CUSTOMER. If SELLER
fails, within a reasonable time after receipt of such notice, to
assume the defense with counsel reasonably satisfactory to
CUSTOMER, or if, in the reasonable judgment of CUSTOMER, a direct
or indirect conflict of interest exists between the parties with
respect to the claim, or if in the sole judgment of CUSTOMER the
assumption and conduct of the defense by SELLER would materially
and adversely affect CUSTOMER in any manner or prejudice its
ability to conduct a successful defense, then CUSTOMER shall have
the right to undertake the defense, compromise and settlement of
such claim for the account and at the expense of SELLER.
Notwithstanding the above, if CUSTOMER in its sole discretion so
elects, CUSTOMER may also participate in the defense of such
actions by employing counsel at its expense, without waiving
SELLER's obligations to indemnify or defend. SELLER shall not
settle or compromise any claim or consent to the entry of any
judgment without the prior written consent of CUSTOMER and without
an unconditional release of all liability by each claimant or
plaintiff to CUSTOMER.
(c) SELLER agrees to maintain during the term all insurance or bonds
required by law or this Agreement, including, but not limited to
(i) Worker's Compensation and related insurance as prescribed by
the law of the state in which SELLER's services are performed or
PRODUCT are delivered; (ii) employer's liability insurance with
limits of at least one million dollars ($1,000,000) for each
occurrence, and (iii) comprehensive general liability insurance
including products liability, and, if the use
16 CONFIDENTIAL
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of motor vehicles is required, comprehensive motor vehicle
liability insurance, each with limits of at least two million
dollars ($2,000,000) for combined single limit for bodily injury,
including death, and/or property damage. SELLER shall cause
CUSTOMER to be included as an additional insured under said
policies (as "GTE Corporation and its affiliates and
subsidiaries") and CUSTOMER's coverage under such policies shall
be primary. SELLER shall waive its rights of subrogation against
CUSTOMER for Workers' Compensation claims. SELLER shall, prior to
rendering such services, furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of such
coverage, the expiration date of each policy, and stating that no
material change or cancellation of any such policy shall be
effective unless thirty (30) days' prior written notice is given
to CUSTOMER.
(d) Additional INDEMNIFICATION AND INSURANCE responsibilities and
obligations for the manufacturer(s) of the PRODUCT(s) are
contained in EXHIBIT H.
31. RELATIONSHIP OF PARTIES
In providing any services under this Agreement, SELLER is acting solely
as an independent contractor and not as an agent of any other party.
Persons furnished by the respective parties shall be solely the
employees or agents of such parties, respectively, and shall be under
the sole and exclusive direction and control of such parties. They
shall not be considered employees of the other party for any purpose.
Each party shall be responsible for compliance with all laws, rules and
regulations involving its respective employees or agents, including
(but not limited to) employment of labor, hours of labor, health and
safety, working conditions and payment of wages. Each party shall also
be responsible, respectively, for payment of taxes, including federal,
state, and municipal taxes, chargeable or assessed with respect to its
employees or agents, such as social security, unemployment, worker's
compensation, disability insurance and federal and state income tax
withholding. Neither party undertakes by this Agreement or otherwise to
perform or discharge any liability or obligation of the other party,
whether regulatory or contractual, or to assume any responsibility
whatsoever for the conduct of the business or operations of the other
party. Nothing contained in this Agreement is intended to give rise to
a partnership or joint venture between the parties or to impose upon
the parties any of the duties or responsibilities of partners or joint
venturers.
32. TOXIC SUBSTANCES AND HAZARDOUS PRODUCT
SELLER represents that each PRODUCT furnished by SELLER is safe for
normal use, is nontoxic, presents no abnormal hazards to persons or the
environment, and may be disposed of as normal refuse.
33. TERMINATION
(a) CUSTOMER may terminate this Agreement without cause, effective
immediately, upon written notice to SELLER. Termination shall not
affect any purchase order placed, any subordinate agreement
executed prior to the date of termination, or any fully paid up
license granted to CUSTOMER. Upon termination of this Agreement
without cause, CUSTOMER shall not be liable to SELLER, either for
compensation or for damages of any kind or character whatsoever,
whether on account of the loss
17 CONFIDENTIAL
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by SELLER of present or prospective profits on sales or
anticipated sales, or expenditures, investments or commitments
made in connection with the establishment, development or
maintenance of SELLER's business, or on account of any other cause
or thing whatsoever. The termination shall not prejudice the
rights or liabilities of the parties with respect to PRODUCT sold,
or any indebtedness then owing by either party to the other.
(b) Either party may terminate this Agreement, effective immediately,
without liability for said termination, upon written notice to the
other party, if any of the following events occur.
(1) The other files a voluntary petition in bankruptcy;
(2) The other is adjudged bankrupt;
(3) A court assumes jurisdiction of the assets of the other
under a federal reorganization act;
(4) A trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other;
(5) The other becomes insolvent or suspends its business;
(6) The other makes an assignment of its assets for the benefit
of its creditors, except as required in the ordinary course
of business; or
(7) The identity of the other's business is materially changed
by sale of its business, transfer of control of its
outstanding stock, merger or otherwise.
(c) Either party may terminate this Agreement for a material breach or
default of any of the terms, conditions or covenants of this
Agreement by the other, provided that such termination may be made
only following the expiration of a thirty (30) day period during
which the other party has failed to cure such breach after having
been given written notice of such breach. This subsection shall
not apply to CUSTOMER's cancellations or SELLER's revocations
under Section 7, PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS;
REVOCATION OF ACKNOWLEDGEMENT.
34. DISPUTE RESOLUTION
(a) The parties desire to resolve certain dispute, controversies and
claims arising out of this Agreement without litigation.
Accordingly, except in the case of (i) a dispute, controversy or
claim relating to a breach or alleged breach on the part of either
party of the provisions of Section 23, CONFIDENTIAL INFORMATION,
(ii) a suit, action or proceeding to compel SELLER to comply with
its obligations to indemnify CUSTOMER pursuant to this Agreement
or (iii) a suit, action or proceeding to compel either party to
comply with the dispute resolution procedures set forth in this
Section 34, the parties agree to use the following alternative
procedure as their sole remedy with respect to any dispute,
controversy or claim arising out of or relating
18 CONFIDENTIAL
<PAGE> 23
to this Agreement or its breach. The term "Arbitrable Dispute"
means any dispute, controversy or claim to be resolved in
accordance with the dispute resolution procedure specified in this
Section 34.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any Arbitrable Dispute arising under this
Agreement. The parties intend that these negotiations be conducted
by nonlawyer, business representatives. The discussions shall be
left to the discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as confidential
information developed for purposes of settlement, shall be exempt
from discovery and production, and shall not be admissible in the
arbitration described below or in any lawsuit without the
concurrence of all parties. Documents identified in or provided
with such communications, which are not prepared for purposes of
the negotiations, are not so exempted and may, if otherwise
admissible, be admitted in evidence in the arbitration or lawsuit.
(c) If the negotiations do not resolve the Arbitrable Dispute within
sixty (60) days of the initial written request, the Arbitrable
Dispute shall be submitted to binding arbitration by a single
arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. A party may demand such
arbitration in accordance with the procedures set out in those
rules. Discovery shall be controlled by the arbitrator and shall
be permitted to the extent set out in this Section. Each party may
submit in writing to a party, and that party shall so respond, to
a maximum of any combination of thirty-five (35) (none of which
may have subparts) of the following: interrogatories, demands to
produce documents and requests for admission. Each party is also
entitled to take the oral deposition of one (1) individual or
another party. Additional discovery may be permitted upon mutual
agreement of the parties. The arbitration hearing shall be
commenced within sixty (60) days of the demand for arbitration and
the arbitration shall be held in Dallas, Texas. The arbitrator
shall control the scheduling so as to process the matter
expeditiously. The parties may submit written briefs. The
arbitrator shall rule on the Arbitrable Dispute by issuing a
written opinion within thirty (30) days after the close of
hearings. The times specified in this Section may be extended upon
mutual agreement of the parties or by the arbitrator upon a
showing of good cause. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
(d) Each party shall bear its own cost of these procedures. A party
seeking discovery shall reimburse the responding party the cost of
production of documents (to include search time and reproduction
time costs). The parties shall equally share the fees of the
arbitration and the arbitrator.
35. NOTICES
Except as otherwise provided herein, any notice or demand given under
the terms of this Agreement or pursuant to statute shall be in writing
and shall be given or made by telegram, facsimile transmission,
certified or registered mail, express mail or other overnight
19 CONFIDENTIAL
<PAGE> 24
delivery service or hand delivery, proper postage or other charges paid
and addressed or directed to the respective parties as follows:
To CUSTOMER:
GTE Supply 700 Hidden Ridge Irving, Texas 75038 Attention: Senior
Contract Manager-Contract Management (HQW03N73)
GTE Supply 700 Hidden Ridge Irving, Texas 75038 Attention: Assistant
Vice President-Contract Management (HQW03L61)
and
GTE Service Corporation 500 E. John Carpenter FWY Irving, Texas 75062
Attention: Director-Standardization Testing and Technology (HQB08A50)
and
GTE Supply 5615 High Point Drive PO Box 169001 Irving, Texas 75016-9001
Attention: Department Manager-Vendor Administration (HQA07B04)
To SELLER:
World Wide Technology, Inc. 127 East Weldon Parkway St. Louis, Missouri
63043-3101 Attention: Tom Van Horn-Manager
The address for notice set out above may be changed at any time by
giving thirty (30) days' prior written notice.
36. LABOR SERVICES
Should SELLER wish to be employed by CUSTOMER and CUSTOMER wish to
employ SELLER to perform certain work in connection with the functions
of engineering, construction, installation, or maintenance of equipment
and/or facilities, SELLER shall enter into a General Agreement for
Engineering, Construction, Installation, or Maintenance to Telephone
Plant (the "General Agreement") with the telephone company affiliates
of CUSTOMER to set forth the mutual rights and obligations of the
parties and the manner in
20 CONFIDENTIAL
<PAGE> 25
which such work shall be performed. A copy of CUSTOMER's then current
version of the General Agreement shall be provided to SELLER upon
request.
37. NONWAIVER
Either party's failure to enforce any of the provisions of this
Agreement or any purchase order, or to exercise any option, shall not
be construed as a waiver of such provisions, rights, or options, or
affect the validity of this Agreement or any purchase order.
38. SEVERABILITY
In any of the provisions of this Agreement shall be invalid or
unenforceable, then such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Agreement. The entire
Agreement shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and
obligations of SELLER and CUSTOMER shall be construed and enforced
accordingly.
39. SECTION HEADINGS
The headings of the sections are inserted for convenience only and are
not intended to affect the meaning or interpretation of this Agreement.
40. SURVIVAL OF OBLIGATIONS
The respective obligations of the parties under this Agreement that by
their nature would continue beyond the termination, cancellation or
expiration, shall survive any termination, cancellation or expiration,
including, but not limited to, obligations to indemnify, insure and
maintain confidentiality, and continued availability of PRODUCT
support.
41. CHOICE OF LAW AND JURISDICTION
The construction, interpretation and performance of this Agreement
shall be governed by and construed in accordance with the laws of the
state of Texas without regard to any conflicts of law principles that
would require the application of the laws of any other jurisdiction and
subject to the exclusive jurisdiction of its federal or state courts in
Dallas County, Texas. The application of the U. N. Convention on
Contracts for the International Sale of Goods is specifically excluded
from this Agreement.
42. ENTIRE AGREEMENT
This Agreement together with its exhibits constitutes the entire
agreement between the parties and cancels all contemporaneous or prior
agreements, whether written or oral, with respect to the subject matter
of this Agreement. Except as provided in Sections 14, PRECEDENCE OF
DOCUMENTS, and Section 7, PURCHASE ORDERS; CANCELLATION OF PURCHASE
ORDERS; REVOCATION OF ACKNOWLEDGEMENT, no modifications shall be made
to this Agreement unless in writing and signed by appropriate
representatives of the parties.
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Each party represents that it has executed this Agreement through its authorized
corporate representative:
WORLD WIDE TECHNOLOGY, INC. GTE COMMUNICATION SYSTEMS
CORPORATION
By: /s/ David L. Steward By: /s/ M. R. Redmond
-------------------------------- ------------------------------------
Name: David L. Steward Name: M. R. Redmond
----------------------------
Title: President Title: Assistant Vice President-Contract
---------------------------- Management
Date: 11-26-97 Date: 11/25/97
---------------------------- -----------------------------------
APPROVED AS TO FORM AND LEGALITY
/s/ J. R. Seastrom
---------------------------------------
Attorney, GTE Telephone Operations
Date: 11-25-97
----------------------------------
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EXHIBIT A
GTE AFFILIATED ENTITIES
CONFIDENTIAL
<PAGE> 28
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Alaska Incorporated
GTE Arkansas Incorporated
GTE California Incorporated
Contel Advanced Systems, Inc.
GTE Florida Incorporated
GTE Communications Corporation
GTE Funding Incorporated
GTE Hawaiian Telephone Company Incorporated
GTE Hawaiian Tel Insurance Company Incorporated
GTE Hawaiian Tel International Incorporated
The Micronesian Telecommunications Corporation
GTE Pacifica Incorporated
GTE Midwest Incorporated
GTE North Incorporated
GTW Telephone Systems Incorporated
GTE Northwest Incorporated
GTE West Coast Incorporated
GTE South Incorporated
GTE Southwest Incorporated
Contel of Minnesota, Inc. d/b/a GTE Minnesota
Contel of the South, Inc. d/b/a GTE Systems of the South
Contel Service Corporation
Continental Telephone Business Systems, Inc.
GTE Anglo Holding Company Incorporated
La Compagnie de Telephone Anglo-Canadienne/Anglo-Canadian Telephone Company
BC TELECOM Inc.
Quebec-Telephone
GTE London Limited (England)
GTE Holdings (Canada) Limited
Compania Dominicana de Telefonos, C. por A. (Codetel)
GTE International Telephone Incorporated
Codetel Computer Graphics Holdings B.V. (Netherlands)
Informatica y Telecommunicaciones, C. por A. (Dominican Republic)
GTE International Telecommunications Incorporated
GTE do Brasil Limitada
GTE PCS International Incorporated
GTE Venezuela Incorporated
VenWorld Telecom, C.A. (Venezuela)
GTE Investments Incorporated
CONFIDENTIAL
<PAGE> 29
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Customer Networks, Inc.
GTE Data Services Incorporated
GTE Data Services Holdings Mexico, S. de R.L. de C.V.
GTE Data Services-Mexico, S.A. de C.V.
GTEDS Data Services-Mexico, S.A. de C.V.
GTE Data Services International Incorporated
GTE Intelligent Network Services Incorporated
GTE Main Street Incorporated
GTE Media Ventures Incorporated
T. L. Robak, Inc.
Apollo Cablevision, Inc.
Contel Vision, Inc.
GTE Professional Services Incorporated
GTE Vantage Incorporated
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EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Mobile Communications Incorporated
GTE Mobile Communications Service Corporation
GTE Mobile Communications International Incorporated
GTE Macro Communications Corporation
GTE Mobilnet of Asheville Incorporated
GTE Mobilnet of Danville Incorporated
GTE Mobilnet of Eastern North Carolina Incorporated
GTE Mobilnet of Fayetteville Incorporated
GTE Mobilnet of Florence, South Carolina Incorporated
GTE Mobilnet of North Carolina Incorporated
GTE Mobilnet of Raleigh Incorporated
GTE Mobilnet of South Carolina Incorporated
GTE Mobilnet of the Southeast Incorporated
Tuscaloosa/Florence Holdings, Inc.
GTE Airfone Incorporated
GTE Mobilnet Incorporated
GTE Cellular Communications Corporation
GTE Mobilnet of Cleveland Incorporated
GTE Mobilnet of Indianapolis Incorporated
GTE Wireless of the Pacific Incorporated
GTE Mobilnet of Tampa Incorporated
GTE Mobilnet Sales Corp.
GTE Mobilnet Service Corp.
CONFIDENTIAL
<PAGE> 31
EXHIBIT A
GTE AFFILIATED ENTITIES
Contel Cellular Inc.
Contel Cellular International, Inc.
GTE Mobilnet Holding Incorporated
GTE Mobilnet of Alabama Incorporated
GTE Mobilnet of Birmingham Incorporated
GTE Mobilnet of Chattanooga Incorporated
GTE Mobilnet of Chattanooga II Incorporated
GTE Mobilnet of Clarksville Incorporated
GTE Mobilnet of Gadsden Incorporated
GTE Mobilnet of Kentucky Incorporated
GTE Mobilnet of Knoxville Incorporated
GTE Mobilnet of Memphis Incorporated
GTE Mobilnet of Memphis II Incorporated
GTE Mobilnet of Nashville Incorporated
GTE Mobilnet of Tennessee Incorporated
GTE Mobilnet of Central California Incorporated
GTE Mobilnet of Davenport Incorporated
GTE Mobilnet of Huntsville Incorporated
GTE Mobilnet of Illinois Funding Incorporated
GTE Mobilnet of Illinois Incorporated
GTE Mobilnet of Indiana Incorporated
GTE Mobilnet of Richmond Incorporated
GTE Mobilnet of San Diego Incorporated
GTE Mobilnet of the South Incorporated
GTE Mobilnet of the Southwest Incorporated
CONFIDENTIAL
<PAGE> 32
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Information Services Incorporated
General Telephone Directory Company C. por A.
GTE Card Services Incorporated
GTE Directories (Belgium) Limited
GTE Directories (B) SDN.BHD (Brunei)
GTE Directories Corporation
GTEDS GmbH
GTE Directories (HK) Limited (Hong Kong)
GTE Government Information Services Incorporated
GTE Information Services (UK) Limited (England)
GTE New Media Services Incorporated
GTE Telecommunications Services Incorporated
GTE Yellow Pages Publishing Hungary Kft
Contel Federal Systems, Inc.
GTE Government Systems Corporation
GTE Telecom Incorporated
GTE Telecom International Incorporated
GTE Telecom International Systems Corporation
GTE China Incorporated
GTE Communications Services Incorporated
GTE Leasing Corporation
GTE Leasing Acceptance Corporation
Kalama Grain Terminal, Inc.
GTE Products of Connecticut Corporation
GTE Communication Systems Corporation (GTE Supply)
GTE Laboratories Incorporated
GTE Operations Support Incorporated
Televac, Inc.
CONFIDENTIAL
<PAGE> 33
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Transfer Corporation
GTE Service Corporation
GTE Finance Corporation
GTE Investment Management Corporation
GTE Massachusetts Incorporated
GTE Realty Corporation
GTE Realty Corporation of Connecticut
GTER Incorporated
GTE-TCCA, Inc.
GTE Reinsurance Company Limited (Vermont)
GTE Life Insurance Company Limited (Bermuda)
GTE Reinsurance Management Limited (Bermuda)
GTE Shareholder Services Incorporated
GTE Visnet Incorporated
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*Confidential treatment will be requested.
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*Confidential treatment will be requested.
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*Confidential treatment will be requested.
World Wide Technology, Inc. Confidential FLM- Page 2
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Agreement No. C971312BC002
*Confidential treatment will be requested.
World Wide Technology, Inc. Confidential Page 3
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Agreement No. 7132BC002
09/30/97
*Confidential treatment will be requested.
World Wide Technology, Inc. Confidential Page 4
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Agreement No. 7132BC002
09/30/97
*Confidential treatment will be requested.
World Wide Technology, Inc. Confidential Page 5
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Agreement No. 7132BC002
09/30/97
*Confidential treatment will be requested.
World Wide Technology, Inc. Confidential Page 6
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Page 1
*Confidential treatment will be requested.
Agreement No. C971312BC002
9/30/97
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Agreement No. C971312BC002 Page 2
9/30/97
* Confidential treatment will be requested
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Page 3
Agreement No. C971312BC002
9/30/97
* Confidential treatment will be requested
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Agreement No. C971312BC002
9/30/97
* Confidential treatment will be requested
<PAGE> 45
Agreement No. C971312BC002
9/30/97
* Confidential treatment will be requested
<PAGE> 46
Agreement No. C971312BC002
9/30/97
* Confidential treatment will be requested
<PAGE> 47
Agreement No. C971312BC002 Page 7
9/30/97
* Confidential treatment will be requested
WORLD WIDE TECHNOLOGY, INC. CONFIDENTIAL Page 7
<PAGE> 48
Agreement No. C9 C002
09/30/97
* Confidential treatment will be requested
World Wide Technology, Inc. Confidential Page 1
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* Confidential treatment will be requested
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* Confidential treatment will be requested
World Wide Technology, Inc. Confidential Page 1
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Agreement No. C971312BC002 Page 7
9/30/97
* Confidential treatment will be requested
WORLD WIDE TECHNOLOGY, INC. CONFIDENTIAL Page 7
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Agreement No. C971312BC002 Page 8
9/30/97
* Confidential treatment will be requested
WORLD WIDE TECHNOLOGY, INC. CONFIDENTIAL Page 8
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Agreement No. C971312BC002 Page 9
9/30/97
*Confidential treatment will be requested
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<PAGE> 54
EXHIBIT D
EDI PURCHASE ORDERS
CONFIDENTIAL
<PAGE> 55
EXHIBIT D
EDI PURCHASE ORDERS
1. At CUSTOMER's option, the parties agree to develop an Electronic Data
Interchange (EDI) for the electronic communication of purchase orders,
acknowledgments, subsequent invoicing or other data (DOCUMENTS). All
exchanged DOCUMENTS shall be channeled through one or more Third Party
Networks (TPNs) by one party to the other. Each party will arrange and pay
its own expenses for the transmission of electronic DOCUMENTS. Either party
may change its TPNs with thirty (30) days' prior written notice to the
other. Each party agrees to provide the other access codes necessary to
establish connections. Each party shall adopt reasonable security
procedures to ensure that (i) DOCUMENTS transmitted electronically are
authorized; (ii) its business records and data are protected from improper
use; and (iii) the security of access codes and electronic identification
codes is maintained. Prior to the performance of any new transmission of
DOCUMENTS under this Agreement, SELLER agrees to review and then perform,
to the best of its capabilities, in accordance with the instructions
provided in CUSTOMER's Implementation Guidelines. As determined by CUSTOMER
and SELLER, there may be a period during which the parties test and resolve
any operations issues.
2. At the option of the sending party and if the sending party has the
capacity to receive acknowledgements electronically, then, upon receipt of
a DOCUMENT, the receiving party shall promptly issue an acknowledgement to
the sending party solely for the purpose of acknowledgeing receipt of the
DOCUMENT. Otherwise, the receiving party shall provide written
acknowledgements to the sending party. If any transmitted DOCUMENT is
received in an unintelligible or garbled form, the receiving party shall
promptly notify the sending party (if identifiable from the received
DOCUMENT) in a reasonable manner. In the absence of such notice, the
sending party's records of contents of such DOCUMENT shall control.
3. For Electronic Funds Transfer (EFT), CUSTOMER agrees to electronically
transfer funds, as appropriate, to the financial institution and bank
account, number shown in Attachment A to this Exhibit D, as the same may be
modified from time to time by SELLER upon notice to CUSTOMER within
fourteen (14) days of the effective date of such modification. CUSTOMER
will make payments in accordance with the National Automated Clearing House
Associations (NACHA) Corporation Trading Rules. CUSTOMER's process is
governed by and in accordance with Article 4A of the Uniform Commercial
Code. CUSTOMER will not be responsible for any loss that may arise by
reason of error, mistake or fraud regarding SELLER's information provided
in Attachment A. Further, CUSTOMER will be responsible for loss of data
only when it is due to the sole negligence of CUSTOMER or its originating
bank.
4. The parties agree that a DOCUMENT properly transmitted electronically,
including a party's identification, shall be the same as a signed writing,
created in the ordinary course of the sending party's business, at or near
the time of the events recorded, and transmitted by a person with knowledge
of the events. When the DOCUMENT is printed from the electronic records,
the DOCUMENT shall be considered an original document. Neither party shall
contest the validity of the DOCUMENT on the grounds that it fails to meet
the common law
D-1
CONFIDENTIAL
<PAGE> 56
5. statute of frauds or the statute of frauds found in Section 2-201 of the
Uniform Commercial Code, that it fails to meet the business records
exception to the hearsay rule or that it fails the best evidence rule
because it is not an original document.
6. For matters pertaining to the technical administration of EDI transactions,
the parties shall contact the individuals listed below:
CUSTOMER: SELLER:
Kent Ashton Ribindar Subbian
MC: HQA03P03 127 E Weldon Parkway
P.O. Box 169001 St. Louis, Missouri 63043-3101
Irving, Texas 75016-9001 314/919-1475
972/751-4342
D-2
CONFIDENTIAL
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ATTACHMENT A
EFT INFORMATION
CONFIDENTIAL
<PAGE> 58
<PAGE> 59
EFT INFORMATION
SELLER'S COMPANY
NAME: World Wide Technology, Inc.
ADDRESS: 127 Weldon Parkway
St. Louis, MO 63043
EFT CONTACT NAME: Angie Densmore
EFT CONTACT TELEPHONE NO: 314/919-1469
EFT PAYMENTS EXTENDED BY: Five (5) days
(EFT payment days will be added to existing payment due dates to neutralize
check float.)
REMITTANCE METHOD (Please check one of the following):
EDI ANSI 820 sent to SELLER's bank with payment
---
XX EDI ANSI 820 sent to SELLER's company's EDI mailbox
---
Fax remittance to ( )- -
--- --- ---- -----
Paper remittance sent to existing remittance address
---
SELLER'S FINANCIAL INSTITUTION
BANK NAME: [*Confidential treatment will
be requested]
ADDRESS: [*Confidential treatment will
be requested]
BANK CALLING OFFICE:
BANK CONTACT TELEPHONE NO:
BANK TRANSIT ROUTING NO: [*Confidential treatment will
be requested]
CONFIDENTIAL
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EFT INFORMATION
SELLER'S EFT BANK ACCOUNT NO
TO RECEIVE PAYMENTS: [* Confidential treatment will be requested]
BANK ACCOUNT NAME: [* Confidential treatment will be requested]
ACH FORMAT SELLER'S BANK
ACCEPTS (CTX OR CCD+): [* Confidential treatment will be requested]
COMBINE EFT REMITTANCE
WITH ACH: NO (Yes/No)
SELLER's Financial Institution should be consulted since EFT transmission
formats are influenced by SELLER's bank capability to receive electronic
payments.
The above EFT payment instructions are authorized, and the terms and condition
stated in this Agreement Number C971312BC002 are accepted by:
- -------------------- --------------------
Signature Date
- -------------------- --------------------
Printed Name Company Title
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EXHIBIT F
PRODUCT DELIVERY INTERVAL
E-14 CONFIDENTIAL
<PAGE> 77
EXHIBIT F
PRODUCT DELIVERY INTERVAL
SELLER shall ship according to the following time frames. Time shall start after
receipt of order. Days shall be working days excluding Saturday, Sunday and
Holidays (New Years Day, Martin Luther King Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Friday after Thanksgiving, Christmas Eve and
Christmas Day).
Standard Fujitsu Plug-in Kits 5 (five) days
Standard Fujitsu Rack Systems 7 (seven) days
Custom Fujitsu Rack Configurations 14 (fourteen) days*
Standard Fujitsu Cabinet Configurations 7 (seven) days
Custom Fujitsu Cabinet Configurations 14 (fourteen) days*
* Custom rack and cabinet configurations will have been approved by
CUSTOMER's Standardization organization and SELLER will have completed
the required product engineering before purchase order is issued.
F-1 CONFIDENTIAL
<PAGE> 78
EXHIBIT G
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
E-1 CONFIDENTIAL
<PAGE> 79
EXHIBIT G
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
TABLE OF CONTENTS
PAGE
----
1. STANDARDIZATION POLICY.......................................1
2. PRODUCT EVALUATION FUNDING...................................1
3. TECHNOLOGICAL OR SPECIFICATION CHANGE/
PRODUCT DELETION/SUBSTITUTION................................2
4. UNSATISFACTORY CONDITION SITUATIONS..........................2
5. PRODUCT CHANGES..............................................2
6. QUALITY ASSURANCE REPORTING..................................4
E-2 CONFIDENTIAL
<PAGE> 80
EXHIBIT G
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
1. STANDARDIZATION POLICY
The GTE standardization process exists to evaluate and manage the
introduction of new or enhanced product and the life-cycle management
of embedded PRODUCT. SELLER is encouraged to direct presentation
efforts for new or enhanced product offerings to CUSTOMER's
standardization and/or testing organization(s) to ensure timely
evaluation and consideration of GTE standard product designation for
system wide application. The GTE standardization process complements
normal SELLER/CUSTOMER interaction required to support existing and
future applications of the SELLER's PRODUCT and technology.
2. PRODUCT EVALUATION FUNDING
(a) If the parties agree to pursue GTE standardization of new or
enhanced product in accordance with CUSTOMER's standardization
and/or testing policies and procedures, SELLER agrees to bear
all costs associated with required Independent Laboratory
Evaluations (ILEs) of the new or enhanced product. Such ILEs
shall be used by CUSTOMER's standardization and/or testing
organization(s) to assess the quality, reliability and safety
of such new or enhanced product prior to possible approval,
purchase, and deployment within GTE. ILEs conducted at
SELLER's expense do not guarantee product acceptance by
CUSTOMER and, if SELLER's product is not standardized by
CUSTOMER's standardization and/or testing organization(s) for
any reason, CUSTOMER shall not be liable for any cost incurred
by SELLER for any such ILEs for any reason.
(b) CUSTOMER may determine, from time to time, a need to
reevaluate SELLER's PRODUCT, or an Unsatisfactory Condition
Report (UCR) for SELLER's PRODUCT, substantiated by CUSTOMER's
standardization and/or testing organization(s), may also
warrant reevaluation. In such cases, SELLER shall bear any
costs associated with ILEs, in accordance with CUSTOMER's
standardization and/or testing policies and procedures, to
ensure continued quality of PRODUCT purchased and deployed by
CUSTOMER. ILEs conducted at SELLER's expense do not guarantee
continued PRODUCT acceptance by CUSTOMER and, if SELLER's
PRODUCT does not pass reevaluation for any reason, CUSTOMER
shall not be liable for any costs incurred by SELLER to such
ILEs for any reason.
G-1 CONFIDENTIAL
<PAGE> 81
3. TECHNOLOGICAL OR SPECIFICATION CHANGE/PRODUCT DELETION/SUBSTITUTION
(a) SELLER is required to give CUSTOMER written notice one hundred
twenty (120) days in advance of any technological or
specification change, Software/firmware revision, PRODUCT
deletion or manufacturer discontinuance that would
significantly impact PRODUCT operation, interchangeability
with existing PRODUCT appearance, warranty, life cycle or GTE
engineering/quality approvals of any PRODUCT. SELLER shall, at
the time of notification, provide CUSTOMER with (i) a PRODUCT
change number; (ii) a description of such change; (iii) the
reason for change; (iv) a description of the impact of such
change upon reliability, PRODUCT specifications, or form, fit
or function; (v) proposed price impact (if any); and (vi)
proposed effective date for such change and recommended
implementation schedule.
(b) SELLER shall conform to the interchangeability rules as
outlined in the Telecommunications Industry Forum (TCIF)
"TCIF97-001 Interchangeability Guideline" when assigning new
part numbers.
(c) If the parties fail to reach agreement on any such change in
PRODUCT to be made by SELLER, then, in addition to all other
rights and remedies at law or in equity or otherwise, CUSTOMER
shall, at no cost or liability, have the right to terminate
this Agreement and any and all ending purchase orders for
PRODUCT affected by such change.
(d) SELLER agrees that if the required one hundred twenty (120)
days' prior written notice is not provided, SELLER shall
accept, at CUSTOMER's option, a PRODUCT exchange or return for
all unsold PRODUCT in CUSTOMER's inventory on the effective
date of the change. Any PRODUCT returned must be unused,
undamaged and in the original carton and may be returned, at
Customer's option, for one hundred percent (100%) credit of
the price paid or an equal dollar value exchange for any other
PRODUCT offered under this Agreement.
4. UNSATISFACTORY CONDITION SITUATIONS
If at any time during normal operation CUSTOMER encounters an
unsatisfactory condition in the PRODUCT, SELLER agrees to meet the
following time frames for resolving the condition:
(a) Conditions that affect public or employee safety or the
ability to track and collect revenue, that cause major
degradation of service, or that impairs the basic
functionality of telecommunication service or its support
system by degrading the day-to-day services to customers,
SELLER shall acknowledge within fifteen (15) days of
notification and must provide a permanent resolution within
thirty (30) days of notification.
(b) Conditions that affect service, but have a temporary solution
to reduce the impact, or that have potential for major service
degradation, SELLER shall acknowledge
G-2 CONFIDENTIAL
<PAGE> 82
within fifteen (15) days of notification and must provide a
permanent resolution within ninety (90) days of notification.
(c) Conditions that are not service or safety affecting but that
have potential to adversely affect normal maintenance and/or
administration of service, SELLER shall acknowledge within
fifteen (15) days and provide a permanent resolution within
one hundred eighty (180) days of notification.
The parties may agree to action dates to correct unsatisfactory
conditions other than those stated above due to upgrades, technological
changes, etc. If an exception to the above corrective action time
frames occurs, the SELLER is bound by the newly agreed upon date. The
term "permanent resolution" shall mean a correction to an
unsatisfactory condition in the form of a new or revised hardware or
Software module, hardware modification kit, Software patch and/or
revised operating or maintenance procedures that are acceptable to
CUSTOMER. Corrections that are temporary in nature, such as hardware
modification or Software patches, shall be included in the next formal
version/release of PRODUCT.
5. PRODUCT CHANGES
(a) If, after PRODUCT has been shipped to CUSTOMER, SELLER issues
changes affecting such PRODUCT and a change is identified as
necessary for the PRODUCT to continue to meet SELLER's
published specifications or design criteria, or is an
identified correction of a deficiency as a result of a UCR
(refer to Section 4, UNSATISFACTORY CONDITION SITUATIONS,
above), SELLER shall provide prompt notification of required
changes to CUSTOMER's standardization and/or testing
organization(s) at the address provided to SELLER for such
purpose. SELLER shall, at SELLER's expense, be responsible for
all costs for parts, replacement and installation for such
change whether implemented by SELLER or CUSTOMER for ten (10)
years beyond the PRODUCT warranty period.
(b) If CUSTOMER and SELLER ascertain that PRODUCT, or a part
thereof, subject to such a change is readily returnable,
CUSTOMER or CUSTOMER's agent or contractor shall remove, at
SELLER's expense, and return such PRODUCT or part to SELLER's
designated repair or manufacturing facility and SELLER, at
SELLER's expense, shall implement such changes and return such
changed PRODUCT or part to CUSTOMER's designated location. If
removal of PRODUCT to be returned to SELLER for modification
would create an out-of-service condition, SELLER shall make
suitable arrangements to provide replacement PRODUCT to
prevent an out-of-service condition from occurring.
(c) Any PRODUCT maintained in CUSTOMER's inventory subject to such
a change shall be returned to SELLER's designated repair or
manufacturing facility to implement changes and shall be
returned to CUSTOMER's stocking location at SELLER's expense.
If such changes create an adverse impact on the PRODUCT
warranty or CUSTOMER's ability to sell the PRODUCT as new,
then SELLER shall accept at CUSTOMER's option, a PRODUCT
exchange or return for all unchanged PRODUCT in CUSTOMER's
inventory.
G-3 CONFIDENTIAL
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(d) All change notifications provided by SELLER to CUSTOMER shall
contain the following information:
(1) Description of change;
(2) Reason for change;
(3) Impact on customer service (i.e., outages, system
downtime);
(4) Price impact, if known;
(5) Effective date of changes; and
(6) Implementation schedule of change.
(e) CUSTOMER may request SELLER to make changes to SELLER's
PRODUCT. Upon receipt of a written document describing in
detail the changes requested by CUSTOMER, SELLER shall respond
in writing to CUSTOMER within thirty (30) days. If SELLER
agrees to undertake such modifications for CUSTOMER, the
response shall quote a proposed implementation schedule and a
cost for such changes to PRODUCT.
6. QUALITY ASSURANCE REPORTING
(a) CUSTOMER has the right to rate SELLER's performance in
accordance with CUSTOMER's internal rating algorithm. Upon
request, CUSTOMER agrees to provide rating information to
SELLER without charge.
(b) If requested by CUSTOMER, SELLER agrees to have a field
reliability and delivery performance tracking system in place
as mutually agreed between CUSTOMER and SELLER, and during the
term of this Agreement, shall continue the tracking system for
as long as CUSTOMER requests. The tracking system shall
provide timely internal data collection enabling SELLER to
arrive at solutions to delivery, quality and reliability
problems related to assembly, subassembly or other repairable
module deficiencies as measured against CUSTOMER's
requirements.
G-4 CONFIDENTIAL
<PAGE> 84
EXHIBIT H
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
AND
PRODUCT MANUFACTURERS
RESPONSIBILITIES AND OBLIGATIONS
CONFIDENTIAL
<PAGE> 85
EXHIBIT H
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
1. SCOPE...............................................................1
[*Confidential treatment requested].
3. PRODUCT REPAIR RETURN ..............................................2
4. REPAIRS BY CUSTOMER ................................................3
5. EMERGENCY REPLACEMENT SERVICE ......................................4
6. CONTINUING AVAILABILITY OF PRODUCT SUPPORT .........................4
7. TECHNICAL SUPPORT FOR PRODUCT.......................................5
8. ON-SITE ASSISTANCE..................................................7
9. PRODUCT MAINTENANCE.................................................7
10. TRAINING............................................................7
11. PRODUCT DOCUMENTATION...............................................7
12. PRODUCT LITERATURE..................................................8
13. COOPERATIVE ADVERTISING.............................................9
14. SUBCONTRACTING .....................................................9
[*Confidential treatment requested].
[*Confidential treatment requested].
[*Confidential treatment requested].
ATTACHMENT D: SELLER's WORKING HOUR SCHEDULE AND CONTACT INFORMATION
[*Confidential treatment requested].
ATTACHMENT F: HARDWARE MAINTENANCE
CONFIDENTIAL
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ATTACHMENT G: SOFTWARE MAINTENANCE
ATTACHMENT H: TRAINING TERMS AND STANDARDS
[Confidential treatment requested]
H-ii CONFIDENTIAL
<PAGE> 87
EXHIBIT H
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
1. SCOPE
(a) This Exhibit H governs the SELLER's PRODUCT Warranties,
Services and Support except as to PRODUCT of a particular
manufacturer for which an Exhibit H - is attached.
(b) SELLER's Product Warranties, Services and Support and Product
Manufacturer's Responsibilities and Obligations shall, in
respect to Fujitsu Product, be governed by Exhibit H-2 and, in
the case of other manufacturers for which an Exhibit H -
is attached, by such an exhibit.
* Confidential treatment will be requested
H-1-1 CONFIDENTIAL
<PAGE> 88
* Confidential treatment will be requested
3. PRODUCT REPAIR RETURN
(a) CUSTOMER may provide to SELLER an Equipment Repair Order (ERO)
number and/or a purchase order pack list number when returning
PRODUCT to SELLER for repair.
(b) CUSTOMER shall furnish the following information with PRODUCT
returned to SELLER for repairs:
(1) CUSTOMER's name and complete address;
(2) Name(s) and telephone number(s) of CUSTOMER's
employee(s) to contact if there are questions about the
PRODUCT to be repaired;
(3) "Ship to" address for return of repaired PRODUCT, if
different from (1);
(4) A complete list of PRODUCT returned;
(5) The nature of the defect or failure, if known; and
H-1-2 CONFIDENTIAL
<PAGE> 89
(6) The PRODUCT warranty status.
(c) All PRODUCT shipped to SELLER for repair shall have repair
tags attached that are supplied by SELLER free of charge or by
CUSTOMER, which shall contain the above stated information.
(d) PRODUCT repaired by SELLER shall have the repair completion
date stenciled or otherwise identified in a permanent manner
in a readily visible location on the PRODUCT and the repaired
PRODUCT shall be returned with a tag or other papers
describing the repairs that have been made. If SELLER
maintains statistical records for repaired PRODUCT, the
information shall be made available to CUSTOMER upon request.
(e) CUSTOMER and SELLER may mutually agree to such return process
as appropriate for PRODUCT(S).
4. REPAIRS BY CUSTOMER
(a) CUSTOMER may elect to repair PRODUCT purchased under this
Agreement. For that PRODUCT, SELLER agrees to furnish initial
and supplemental documentation necessary for the repair of
PRODUCT purchased. Transfer of such documentation shall be at
no cost to CUSTOMER, for the sole use of CUSTOMER in repairing
the PRODUCT, and shall not include the right to sublicense or
transfer such documentation to a third party.
* Confidential treatment will be requested
(c) Repair documentation to be provided to CUSTOMER shall include,
but not limited to, the following:
(1) Circuit drawings and explanations;
(2) Assembly drawings;
(3) Material lists;
(4) Art work drawings;
(5) Component specifications;
(6) Supplier cross references;
H-1-3 CONFIDENTIAL
<PAGE> 90
(7) Repair procedure specifications; and
(8) Engineering change orders.
(d) Except as provided in Section 1 of this Exhibit, no repair
effected by CUSTOMER under this Agreement shall affect any
warranty afforded to CUSTOMER.
5. EMERGENCY REPLACEMENT SERVICE
(a) If a failure causes a customer service impairment, which
failure is caused by PRODUCT furnished under this Agreement,
SELLER agrees to ship replacement PRODUCT, by the most
expedient means available, within twenty-four (24) hours of
verbal notification by CUSTOMER.
(1) If the defective or nonconforming PRODUCT is in warranty
or is covered under a maintenance agreement, SELLER
shall ship new replacement PRODUCT at no charge. If the
defective or nonconforming PRODUCT is not returned to
SELLER within sixty (60) days from the date of shipment
of the new replacement PRODUCT, SELLER may invoice
CUSTOMER for such new replacement PRODUCT
[*Confidential treatment requested].
(2) If the defective or nonconforming PRODUCT is out of
warranty and is not covered under a maintenance
agreement, SELLER shall ship new replacement PRODUCT and
may invoice CUSTOMER.
(b) In order to schedule shipment of replacement PRODUCT, CUSTOMER
may telephone SELLER. This service shall be available from
SELLER seven (7) days a week, twenty-four (24) hours a day. As
specified in Attachment D, CUSTOMER may contact SELLER at the
telephone numbers listed during normal working hours and after
normal working hours.
6. CONTINUING AVAILABILITY OF PRODUCT SUPPORT
(a) SELLER agrees to offer for sale to CUSTOMER, for the
respective periods during which the PRODUCT is manufactured by
SELLER, and for a period of five (5) years after the PRODUCT
has been manufacturer discontinued, functionally equivalent
replacement and repair parts.
(b) If SELLER is unable or unwilling to supply such parts or
SELLER is unable or unwilling to obtain another source of
supply for CUSTOMER, then such inability shall be considered
noncompliance with this Section and SELLER shall, with neither
obligation nor charge to CUSTOMER, provide CUSTOMER with
drawings or other documents required to either manufacture or
buy such parts and the technical information or any other
rights necessary for CUSTOMER to manufacture or obtain such
parts from other sources, together with a nonexclusive license
to manufacture or purchase such parts for the purpose of
supporting CUSTOMER's customer base.
H-1-4 CONFIDENTIAL
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(c) The technical information shall include, by example and not by
way of limitation:
(1) Manufacturing drawings and specifications of materials
and parts comprising the replacement and repair parts
and components;
(2) Manufacturing drawings and specifications covering
special tooling and operation;
(3) A detailed list of all commercially available parts and
components purchased by SELLER on the open market,
disclosing the part number, name and location of the
supplier and price lists for the purchase; and
(4) One complete copy of the source code used in the
preparation of any Software licensed or otherwise
acquired by CUSTOMER from SELLER, provided however, that
such source code shall remain the property of SELLER and
shall be separately licensed to CUSTOMER for CUSTOMER's
possession and use exclusively for maintenance of
CUSTOMER's and CUSTOMER's customers' PRODUCT.
(d) Notwithstanding the above, SELLER shall not be under any
obligation to provide source codes for any licensed program
for which SELLER either (i) does not own the source code or
(ii) does not have rights to disclose such source code. In
either event, SELLER shall disclose its licensor or owner of
said source code.
7. TECHNICAL SUPPORT FOR PRODUCT
(a) SELLER shall make available to CUSTOMER telephone technical
support twenty-four (24) hours a day, seven (7) days a week.
There shall be no charge for such technical support. Technical
support and services shall include, but not be limited to, the
provision of the following services:
(1) Distribution of a master SELLER's escalation matrix and
ongoing updates. This matrix must include names, titles
and telephone numbers of individuals within SELLER's
technical support organization for problem response
escalation.
(2) Distribution to GTE's National Operations Center (NOC)
personnel of a monthly activity summary report listing
the number of times CUSTOMER's personnel contacted
SELLER's technical support throughout the month, with
the date and time of contact, disposition of the call
and the source of any identified problems.
(3) Assistance in the diagnosis and resolution of hardware
and Software problems and in the analysis of maintenance
indices. Also assistance in expediting priority
replacement parts or systems required on an emergency
basis.
(4) On-line remote monitoring of sites, as mutually agreed,
to provide assistance in problem identification and
resolution.
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<PAGE> 92
(5) Assistance in the support of the initial implementation
of newly developed PRODUCT and during installation of
significant PRODUCT updates and/or changes.
(6) Support in the preparation and analysis of failure and
discrepancy reports, as required.
(7) Cooperation in providing guidelines and documentation to
ensure the necessary tracking and resolution of
engineering, installation and service complaints.
(b) When CUSTOMER contacts SELLER for technical support, SELLER
must provide caller with a control number if resolution cannot
be completed over the telephone. SELLER shall provide the
caller a verbal status, disposition or resolution of the
reported problem within two (2) hours of notification. At the
discretion of CUSTOMER, the problem may be escalated in
accordance with SELLER's escalation matrix.
(c) SELLER's technical support shall meet the following emergency
resolution intervals:
(1) Total Outage -- 2 Hours
The PRODUCT has stopped
performing the function for
which it was purchased
(providing no service).
(2) Safety Hazard -- 2 Hours
The PRODUCT has a defect
that may pose a safety hazard
to employees or customers.
(3) Partial Outage -- 4 Hours
The PRODUCT is providing
limited service for which it
was purchased.
(4) Loss of Redundancy -- 24 Hours
Any redundant part of the
PRODUCT is operating in a simplex mode.
(5) Customer-Affecting Trouble -- 72 Hours
The PRODUCT is providing
the service for which it was
purchased; however, at times
that service deteriorates.
H-1-6 CONFIDENTIAL
<PAGE> 93
8. ON-SITE ASSISTANCE
(a) Prior to any on-site assistance, the solution to specific
problems shall be discussed and resolved, whenever possible,
by telephone, as outlined in Section 7, TECHNICAL SUPPORT FOR
PRODUCT, of this Exhibit. If requested by CUSTOMER, SELLER
agrees to furnish on-site assistance in a time frame as
mutually agreed by the parties and in accordance with SELLER's
prevailing rates, [*Confidential treatment requested].
Current rates, [*Confidential treatment requested],
shall not be changed by SELLER without written notice to
CUSTOMER sixty (60) days in advance of such change, which must
be mutually agreed upon by both parties.
(b) In cases of out-of service emergencies, customer-affecting
failures and/or when other critical factors apply, SELLER
agrees to provide on-site assistance within eight (8) hours of
CUSTOMER request, within the limits of available
transportation.
(c) When requested, SELLER shall provide a qualified individual
familiar with the PRODUCT, at no expense to CUSTOMER, for a
period to be mutually agreed to at the first installation of
newly developed PRODUCT or PRODUCT enhancement, updates or
changes in each designated CUSTOMER area.
9. PRODUCT MAINTENANCE
This Agreement in itself does not purchase any services or maintenance.
Any request for services or maintenance shall only be provided for in
CUSTOMER's purchase order, or through the request procedure set out in
this Agreement.
(a) Pursuant to CUSTOMER's issuance of a purchase order(s) to
SELLER for hardware maintenance, such hardware maintenance
shall be provided in accordance with the terms and conditions
as set forth in Attachment F.
(b) Pursuant to CUSTOMER's issuance of a purchase order(s) to
SELLER for Software maintenance, such Software maintenance
shall be in accordance with the terms and conditions as set
forth in Attachment G.
10. TRAINING
During the term of the Agreement, SELLER shall provide training in
accordance with the terms and standards set forth in Attachment H.
11. PRODUCT DOCUMENTATION
(a) During the term of this Agreement, SELLER shall support
PRODUCT by maintaining and providing, at no charge,
documentation, preferably in a mechanized format, on the
following:
(1) Administration;
(2) Features and technical specifications;
H-1-7 CONFIDENTIAL
<PAGE> 94
(3) Detailed engineering and circuit design;
(4) Installation and testing;
(5) Operations, provisioning and translations;
(6) Test and acceptance;
(7) Maintenance and diagnostics; and
(8) Other documentation deemed necessary by CUSTOMER to
support the maintenance and operation of the PRODUCT.
(b) SELLER shall maintain a, record of PRODUCT documentation
provided to CUSTOMER and shall provide updates, at no charge,
in accordance with that record.
(c) All initial documentation and any updates shall be submitted
by SELLER to CUSTOMER for review and preparation of CUSTOMER's
cover sheets and addenda, as required, prior to any
distribution or shipment with PRODUCT purchased by CUSTOMER.
SELLER shall review and reply to any suggested change provided
by CUSTOMER as a result of the review.
(d) Any GTE Practice (GTEP) written by SELLER in support of the
PRODUCT shall be written in accordance with the guidelines
provided by CUSTOMER.
(e) SELLER shall provide, upon CUSTOMER's request, one master
(camera ready) photographic replication of PRODUCT suitable
for use in CUSTOMER's product catalog publications.
(f) SELLER grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of SELLER's PRODUCT
documentation. Such reproduction shall be for CUSTOMER's own
internal use.
12. PRODUCT LITERATURE
(a) SELLER agrees to provide CUSTOMER with reasonable amounts of
PRODUCT literature, at no additional charge, to properly
support SELLER's PRODUCT.
(b) SELLER grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of SELLER's PRODUCT
brochures, or to incorporate portions of SELLER copyrighted
material in PRODUCT brochures or advertising material composed
by CUSTOMER, provided that CUSTOMER shall submit such material
composed by CUSTOMER that incorporates such SELLER copyrighted
material for SELLER's prior approval, which approval shall not
be unreasonably withheld. Such reproduction shall not
H-1-8 CONFIDENTIAL
<PAGE> 95
apply to proprietary and/or confidential information and shall
be subject to all applicable copyright laws.
13. COOPERATIVE ADVERTISING
During the term of this Agreement, SELLER shall work in good faith with
CUSTOMER to develop a mutually agreed upon program of cooperative
advertising and/or joint promotion.
14. SUBCONTRACTING
CUSTOMER reserves the right to enlist other contractors for
engineering, installation or maintenance services with respect to
SELLER's PRODUCT.
H-1-9 CONFIDENTIAL
<PAGE> 96
CONFIDENTIAL
* Confidential treatment will be requested
<PAGE> 97
CONFIDENTIAL
* Confidential treatment will be requested
<PAGE> 98
CONFIDENTIAL
* Confidential treatment will be requested
<PAGE> 99
ATTACHMENT D
SELLER'S WORKING HOUR SCHEDULE AND
CONTACT INFORMATION
CONFIDENTIAL
<PAGE> 100
ATTACHMENT E
CONFIDENTIAL
* Confidential treatment will be requested
<PAGE> 101
ATTACHMENT F
HARDWARE MAINTENANCE
CONFIDENTIAL
<PAGE> 102
ATTACHMENT G
SOFTWARE MAINTENANCE
CONFIDENTIAL
<PAGE> 103
ATTACHMENT H
TRAINING TERMS AND STANDARDS
CONFIDENTIAL
<PAGE> 104
ATTACHMENT H
TRAINING TERMS AND STANDARDS
1. SELLER shall provide qualified instructors and the necessary
instruction material, as mutually agreed upon, to train CUSTOMER's
personnel in the marketing, installation, database preparation and
administration, operation, and maintenance of PRODUCT furnished in a
cost effective manner.
2. SELLER shall also establish and/or maintain curricula to include, but
not limited to, the following:
(a) PRODUCT overview and introduction (e.g., features, functions,
benefits, nomenclature, architecture);
(b) Engineering, installation and maintenance;
(c) Basic operation and administration;
(d) Sizing, configuration and PRODUCT ordering;
(e) Planning and budgetary guidelines; and
(f) Other subjects deemed necessary by CUSTOMER to support the
PRODUCT.
3. SELLER shall change, modify, update and/or add training programs as new
PRODUCT features/releases are made available.
4. SELLER shall maintain a technical training facility and provide
CUSTOMER a course listing of all training courses available to
CUSTOMER, notify CUSTOMER of any curriculum changes and identify those
courses that are critical in the support of the PRODUCT. Training shall
be offered on a regular basis and SELLER shall attempt to meet any
reasonable request for additional or unscheduled training required by
CUSTOMER. Additional courses may be scheduled with sixty (60) days
prior written notice.
5. SELLER shall offer to CUSTOMER training classes at no
additional cost, for every $ purchased/licensed by
CUSTOMER from SELLER during each year of this Agreement. CUSTOMER shall
bear the cost of transportation, meals, lodging or any other incidental
expenses of CUSTOMER personnel to, from and during training. All
charges for training, over and above that offered at no charge, shall
be as shown in Attachment 1. Prices shall not be changed by SELLER
without written notice to CUSTOMER ( ) days in advance
of such change, and must be mutually agreed upon by both parties.
6. SELLER agrees to extend an additional % discount on SELLER's
PRODUCT purchased by CUSTOMER for the sole purpose of training CUSTOMER
employees on the use of the PRODUCT.
7. SELLER shall, at no charge to CUSTOMER, provide copies of all training
materials to the CUSTOMER's training department for review of quality
and applicability to CUSTOMER's
H - 1, H - 1 CONFIDENTIAL
<PAGE> 105
training requirements. SELLER shall provide a plan for the correction
of deficiencies identified in such review.
8. If requested by CUSTOMER, SELLER shall, at a mutually agreeable cost,
conduct "Train the Trainer" classes on sales, installation,
maintenance, and engineering of SELLER's PRODUCT for CUSTOMER
instructors, at a mutually agreed upon location.
9. SELLER shall provide, upon CUSTOMER request, one master (camera ready)
copy of any sales, installation, maintenance, and engineering
courseware required for CUSTOMER's instructors to train on SELLER's
PRODUCT. The courseware shall contain an instructor guide, student
materials and any additional aides required to present the course.
These master copy materials shall be provided at no cost. SELLER shall
provide CUSTOMER with reproduction rights for these materials. These
materials shall not be distributed to any nonCUSTOMER organization.
10. CUSTOMER may audit SELLER conducted training to ascertain if the
materials are presented in a quality manner. The costs of such audits
shall be at no charge. Any recommendations offered by CUSTOMER shall be
incorporated for future training classes in a timely manner.
11. SELLER certified CUSTOMER instructors shall be afforded the same
consideration as SELLER's instructors in regard to course modifications
and updates. SELLER shall assure that CUSTOMER's instructors have the
same updated material as SELLER's instructors.
12. SELLER shall provide CUSTOMER's instructors, at no cost,
technical/operational support in the form of reasonable telephone
consulting assistance relating to the content of courseware.
13. SELLER shall provide, at the actual cost of reproduction, copies of all
training materials required to support CUSTOMER's embedded base of
PRODUCT that SELLER may have declared as discontinued or obsolete.
H - 1, H - 2 CONFIDENTIAL
<PAGE> 106
CONFIDENTIAL
* Confidential treatment will be requested
<PAGE> 107
EXHIBIT H-2
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
AND
PRODUCT. MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
FUJITSU
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. PARTIES...............................................................................................1
* Confidential treatment will be requested
* Confidential treatment will be requested
* Confidential treatment will be requested
5. REPAIRS BY CUSTOMER...................................................................................5
6. EMERGENCY REPLACEMENT SERVICE.........................................................................5
7. CONTINUING AVAILABILITY OF PRODUCT SUPPORT............................................................5
8. TECHNICAL SUPPORT FOR PRODUCT.........................................................................6
9. ON-SITE ASSISTANCE....................................................................................8
10. PRODUCT MAINTENANCE...................................................................................8
11. TRAINING..............................................................................................8
12. PRODUCT DOCUMENTATION.................................................................................9
13. PRODUCT LITERATURE...................................................................................10
14. COOPERATIVE ADVERTISING..............................................................................10
15. SUBCONTRACTING.......................................................................................10
16. LABOR SERVICES.......................................................................................10
17. SOFTWARE LICENSE.....................................................................................10
18. INFRINGEMENT.........................................................................................10
</TABLE>
H - 2 - 1 CONFIDENTIAL
<PAGE> 108
<TABLE>
<S> <C>
19. INDEMNIFICATION AND INSURANCE........................................................................10
SIGNATURES...........................................................................................11
* Confidential treatment will be requested
* Confidential treatment will be requested
* Confidential treatment will be requested
* Confidential treatment will be requested
ATTACHMENT F: HARDWARE MAINTENANCE
ATTACHMENT G: SOFTWARE MAINTENANCE
ATTACHMENT H: TRAINING TERMS AND STANDARDS
* Confidential treatment will be requested
ATTACHMENT J: ADDITIONAL MANUFACTURER'S RESPONSIBILITIES AND OBLIGATIONS
</TABLE>
H - 2 - 2 CONFIDENTIAL
<PAGE> 109
EXHIBIT H-2
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
AND
PRODUCT MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
FUJITSU
1. PARTIES
(a) This EXHIBIT H-2, is made between World Wide Technology, 1nc.
(SELLER), Fujitsu Network Communications, Inc. (Manufacturer) and
GTE Communication Systems Corporation (CUSTOMER) acting through
its GTE Supply Division.
(b) This EXHIBIT H-2, is attached to and made a part of that certain
Product Purchase Agreement No. C971312BC002, dated effective
November 1, 1997 (the "Agreement") between World Wide Technology,
Inc. (SELLER) and GTE Communication Systems Corporation (CUSTOMER)
acting through its GTE Supply Division.
(c) This EXHIBIT H-2, applies to Manufacturer's PRODUCT(S) which are
furnished to CUSTOMER through SELLER.
(d) The PARTIES agree that if there is a conflict between this EXHIBIT
H-2, and the main part of the Agreement, the main part of the
Agreement shall control. This shall not be construed to release
Manufacturer of any of its obligations under the Product Purchase
Agreement No. C951312P0001, dated effective January 1, 1996 with
CUSTOMER.
(e) The PARTIES further agree that Manufacturer's obligations as to
PRODUCT (and services) are only in respect to PRODUCT supplied
directly, or indirectly (through SELLER) by Manufacturer and
services related thereto.
(f) The PARTIES further agree that CUSTOMER may not resell PRODUCT to
any third party that is a current direct account of Manufacturer.
CUSTOMER shall inquire with SELLER and/or Manufacturer as to which
third parties are direct accounts of Manufacturer.
(g) The PARTIES further agree that this Exhibit H-2 shall be amended
following execution of the new Product Purchase Agreement (PPA)
currently being negotiated between CUSTOMER and Manufacturer. Such
amendment(s) shall modify Manufacturer's additional
responsibilities and obligations hereunder consistent with the
parallel provisions of such new PPA or as it may be amended from
time to time.
H - 2 - 1 CONFIDENTIAL
<PAGE> 110
* Confidential treatment will be requested
H - 2 - 2 CONFIDENTIAL
<PAGE> 111
H - 2 - 3 CONFIDENTIAL
* Confidential treatment will be requested
<PAGE> 112
[*Confidential treatment requested].
4. PRODUCT REPAIR RETURN
(a) CUSTOMER may provide to Manufacturer an Equipment Repair Order
(ERO) number and/or a purchase order pack list number when
returning PRODUCT to Manufacturer for repair.
(b) CUSTOMER shall furnish the following information with PRODUCT
returned to Manufacturer for repairs:
(1) CUSTOMER's name and complete address;
(2) Name(s) and telephone number(s) of CUSTOMER's employee(s)
to contact if there are questions about the PRODUCT to be
repaired;
(3) "Ship to" address for return of repaired PRODUCT, if
different from (1);
(4) A complete list of PRODUCT returned;
(5) The nature of the defect or failure, if known; and
(6) The PRODUCT warranty status and the date of manufacture.
(c) All PRODUCT shipped to Manufacturer for repair shall have repair
tags attached that are supplied by Manufacturer free of charge or
by CUSTOMER, which shall contain the above stated information.
(d) PRODUCT repaired by Manufacturer shall have the repair completion
date stenciled or otherwise identified in a permanent manner in a
readily visible location on the PRODUCT and the repaired PRODUCT
shall be returned with a tag or other papers describing the
repairs that have been made. If Manufacturer maintains statistical
H - 2 - 4 CONFIDENTIAL
<PAGE> 113
records for repaired PRODUCT, the information shall be made
available to CUSTOMER upon request.
5. REPAIRS BY CUSTOMER
(a) CUSTOMER may elect to repair Manufacturer's PRODUCT purchased
under this Agreement. For that PRODUCT, Manufacturer agrees to
work with CUSTOMER to develop a repair program and furnish initial
and supplemental documentation necessary for the repair of PRODUCT
purchased. Transfer of such documentation shall be at no cost to,
CUSTOMER, for the sole use of CUSTOMER in repairing the PRODUCT,
and shall not include the right to sublicense or transfer such
documentation to a third party.
(b) Manufacturer agrees to sell to CUSTOMER the necessary components
for said repairs at the prices to be mutually agreed upon.
(c) Repair documentation to be provided to CUSTOMER shall be mutually
agreed upon by the parties.
6. EMERGENCY REPLACEMENT SERVICE
(a) If a failure causes a customer service impairment, which failure
is caused by PRODUCT furnished under this Agreement, Manufacturer
agrees to work with SELLER to ship replacement PRODUCT, by the
most expedient means available, within twenty-four (24) hours of
verbal notification by CUSTOMER.
(1) If the defective or nonconforming PRODUCT is in warranty or
is covered under a maintenance agreement, Manufacturer
shall work with SELLER to ship new replacement PRODUCT at
no charge. If the defective or nonconforming PRODUCT is not
returned to Manufacturer within sixty (60) days from the
date of shipment of the new replacement PRODUCT, SELLER may
invoice CUSTOMER for such new replacement PRODUCT
[* Confidential treatment will be requested]
(2) If the defective or nonconforming PRODUCT is out of
warranty and is not covered under a maintenance agreement,
Manufacturer shall work with SELLER to ship new replacement
PRODUCT and SELLER may invoice CUSTOMER [* Confidential
treatment will be requested]
(b) In order to schedule shipment of replacement PRODUCT, CUSTOMER may
telephone Manufacturer. This service shall be available from
Manufacturer seven (7) days a week, twenty-four (24) hours a day.
As specified in Attachment D, CUSTOMER may contact Manufacturer at
the telephone numbers listed during normal working hours and after
normal working hours.
7. CONTINUING AVAILABILITY OF PRODUCT SUPPORT
(a) Manufacturer agrees to offer for sale to CUSTOMER, for the
respective periods during which the PRODUCT is manufactured by
Manufacturer, and for a period of ten (10) years after the PRODUCT
has been manufacturer discontinued, functionally equivalent
replacement and repair parts.
H - 2 - 5 CONFIDENTIAL
<PAGE> 114
(b) If Manufacturer is unable or unwilling to supply such parts or
Manufacturer is unable or unwilling to obtain another source of
supply for CUSTOMER, then such inability shall be considered
noncompliance with this Section and Manufacturer shall to the
extent that Manufacturer is able to do so with neither obligation
nor charge to CUSTOMER, provide CUSTOMER with drawings or other
documents required to either manufacture or buy such parts and the
technical information or any other rights necessary for CUSTOMER
to manufacture or obtain such parts from other sources.
(c) The technical information shall include, by example and not by way
of limitation:
(1) Manufacturing drawings and specifications of materials and
parts comprising the replacement and repair parts and
components;
(2) Manufacturing drawings and specifications covering special
tooling and operation;
(3) A detailed list of all commercially available parts and
components purchased by Manufacturer on the open market,
disclosing the part number, name and location of the
supplier; and
(4) One complete copy of the source code used in the
preparation of any Software licensed or otherwise acquired
by CUSTOMER from Manufacturer, provided however, that such
source code shall remain the property of Manufacturer and
shall be separately licensed to CUSTOMER for CUSTOMER's
possession and use exclusively for maintenance of
CUSTOMER's and CUSTOMER's customers' PRODUCT.
(d) Notwithstanding the above, Manufacturer shall not be under any
obligation to provide source codes for any license program for
which Manufacturer either (i) does not own the source code or (ii)
does not have rights to disclose such source code. In either
event, Manufacturer shall disclose its licensor or owner of said
source code.
8. TECHNICAL SUPPORT FOR PRODUCT
(a) Manufacturer shall make available to CUSTOMER telephone technical
support at (1-800/873-3822), twenty-four (24) hours a day, seven
(7) days a week. There shall be no charge for such technical
support. Technical support and services shall include, but not be
limited to, the provision of the following services:
(1) Distribution of a master Manufacturer's escalation matrix
and ongoing updates. This matrix must include names, titles
and telephone numbers of individuals within Manufacturers
technical support organization for problem response
escalation.
(2) Distribution to GTE's National Operations Center (NOC)
personnel of a monthly activity summary report listing the
number of times CUSTOMER's personnel contacted
Manufacturer's technical support throughout the month, with
the date and time of contact, disposition of the call and
the source of any identified problems.
H - 2 - 6 CONFIDENTIAL
<PAGE> 115
(3) Assistance in the diagnosis and resolution of hardware and
Software problems and in the analysis of maintenance
indices. Also assistance in expediting priority replacement
parts or systems required on an emergency basis.
(4) On-line remote monitoring of sites, as mutually agreed, to
provide assistance in problem identification and
resolution.
(5) Assistance in the support of the initial implementation of
newly developed PRODUCT and during installation of
significant PRODUCT updates and/or changes.
(6) Support in the preparation and analysis of failure and
discrepancy reports, as required.
(7) Cooperation in providing guidelines and documentation to
ensure the necessary tracking and resolution of
engineering, installation and service complaints.
(b) When CUSTOMER contacts Manufacturer for technical support,
Manufacturer must provide caller with a control number if
resolution cannot be completed over the telephone. Manufacturer
shall provide the caller a verbal status, disposition or
resolution of the reported problem within two (2) hours of
notification. At the discretion of CUSTOMER, the problem may be
escalated in accordance with Manufacturer's escalation matrix.
(c) Manufacturer's technical support shall meet the following
emergency resolution intervals during which period Manufacturer
shall identify a course of action for implementing a remedy:
(1) Total Outage - .................................2 Hours
The PRODUCT has stopped
performing the function for
which it was purchased
(providing no service).
(2) Safety Hazard - ................................2 Hours
The PRODUCT has a defect
that may pose a safety hazard
to employees or customers.
(3) Partial Outage - ...............................4 Hours
The PRODUCT is providing
limited service for which it
was purchased.
(4) Loss of Redundancy -...........................24 Hours
Any redundant part of the
PRODUCT is operating
in a simplex mode.
H - 2 -7 CONFIDENTIAL
<PAGE> 116
(5) Customer-Affecting Trouble - ..................72 Hours
The PRODUCT is providing
the service for which it was
purchased; however, at times
that service deteriorates.
9. ON-SITE ASSISTANCE
(a) Prior to any on-site assistance, the solution to specific problems
shall be discussed and resolved, whenever possible, by telephone,
as outlined in Section 8, TECHNICAL SUPPORT FOR PRODUCT, of this
Exhibit H-2. If requested by CUSTOMER, Manufacturer agrees to
furnish on-site assistance in a time frame as mutually agreed by
the parties and in accordance with Manufacturer's prevailing
rates, [* Confidential treatment will be requested] shall not be
changed by Manufacturer without written notice to CUSTOMER and
SELLER ninety (90) days in advance of such change, which must be
mutually agreed upon by both parties.
(b) In cases of out-of service emergencies, customer-affecting
failures and/or when other critical factors apply, Manufacturer
agrees to provide on-site assistance within eight (8) hours of
CUSTOMER request, within the limits of available transportation
and Manufacturer's personnel resources.
(c) When requested, Manufacturer shall provide a qualified individual
familiar with the PRODUCT, at no expense to CUSTOMER, for a period
of three (3) days at the first installation of newly developed
PRODUCT or PRODUCT enhancement, updates or changes in each
designated CUSTOMER area.
10. PRODUCT MAINTENANCE
(a) This Agreement in itself does not purchase any services or
maintenance. Any request for services or maintenance shall only be
provided for in CUSTOMER's purchase order, or through the request
procedure set out in this Agreement.
(b) Pursuant to CUSTOMER's issuance of a purchase order(s) to
Manufacturer for hardware maintenance, such hardware maintenance
shall be provided in accordance with the terms and conditions as
set forth in Attachment F.
(c) Pursuant to CUSTOMER's issuance of a purchase order(s) to
Manufacturer for Software maintenance, such Software maintenance
shall be in accordance with the terms and conditions as set forth
in Attachment G.
11. TRAINING
During the term of the Agreement, Manufacturer shall provide training
in accordance with the terms and standards set forth in Attachment H
[* Confidential treatment will be requested]
H - 2 - 8 CONFIDENTIAL
<PAGE> 117
12. PRODUCT DOCUMENTATION
(a) During the term of this Agreement, Manufacturer shall support
PRODUCT by maintaining and providing documentation, preferably in
a mechanized format, on the following:
(1) Administration;
(2) Features and technical specifications;
(3) Detailed engineering and circuit design;
(4) Installation and testing;
(5) Operations, provisioning and translations;
(6) Test and acceptance;
(7) Maintenance and diagnostics; and
(8) Other documentation deemed necessary by CUSTOMER to support
the maintenance and operation of the PRODUCT.
(b) Three (3) sets of site specific documentation including one (1)
set of PRODUCT documentation will be provided at no additional
charge with each order. Otherwise, additional sets of
documentation will be supplied to CUSTOMER at no charge only upon
specific written request therefor.
(c) Manufacturer shall maintain a record of PRODUCT documentation
except Software products provided to CUSTOMER and shall provide
updates, at no charge, in accordance with that record.
(d) All initial documentation and any updates shall be submitted by
Manufacturer to CUSTOMER for review and preparation of CUSTOMER's
cover sheets and addenda, if requested by CUSTOMER prior to any
distribution or shipment with PRODUCT purchased by CUSTOMER.
Manufacturer shall review and reply to any suggested change
provided by CUSTOMER as a result of the review.
(e) Any GTE Practice (GTEP) written by Manufacturer in support of the
PRODUCT shall be written in accordance with the guidelines
provided by CUSTOMER.
(f) Manufacturer shall provide, upon CUSTOMER's request, one master
(camera ready) photographic replication of PRODUCT suitable for
use in CUSTOMER's product catalog publications.
(g) Manufacturer grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of Manufacturer's PRODUCT
documentation. Such reproduction shall be for CUSTOMER's own
internal use.
H - 2 - 9 CONFIDENTIAL
<PAGE> 118
13. PRODUCT LITERATURE
(a) Manufacturer agrees to provide CUSTOMER with reasonable amounts of
PRODUCT literature, at no additional charge, to properly support
Manufacturer's PRODUCT.
(b) Manufacturer grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of Manufacturer's PRODUCT
brochures, or to incorporate portions of Manufacturer copyrighted
material in PRODUCT brochures or advertising material composed by
CUSTOMER, provided that CUSTOMER shall submit such material
composed by CUSTOMER that incorporates such Manufacturer
copyrighted material for Manufacturer's prior approval, which
approval shall not be unreasonably withheld. Such reproduction
shall not apply to proprietary and/or confidential information and
shall be subject to all applicable copyright laws. All
reproductions incorporating copyrighted material shall include
Manufacturer's copyright as proprietary notice on all copies.
14. COOPERATIVE ADVERTISING
During the term of this Agreement, Manufacturer shall work in good
faith with CUSTOMER to develop a mutually agreed upon program of
cooperative advertising and/or joint promotion.
15. SUBCONTRACTING
CUSTOMER reserves the right to enlist other contractors for
engineering, installation or maintenance services with respect to
Manufacturer's PRODUCT.
16. LABOR SERVICES
Should Manufacturer wish to be employed by CUSTOMER and CUSTOMER wish
to employ Manufacturer to perform certain work in connection with the
functions of engineering, construction, installation, or maintenance of
equipment and/or facilities, Manufacturer shall enter into a General
Agreement for Engineering, Construction, Installation, or Maintenance
of Telephone Plant (the "General Agreement") with the telephone company
affiliates of CUSTOMER to set forth the mutual rights and obligations
of the parties and the manner in which such work shall be performed.
17. SOFTWARE LICENSE
Manufacturer shall provide Software license as set forth in Attachment
J.
18. INFRINGEMENT
Manufacturer shall provide infringement indemnity as set forth in
Attachment J.
19. INDEMNIFICATION AND INSURANCE
Manufacturer shall provide indemnification and insurance as set forth
in Attachment J.
H - 2 - 10 CONFIDENTIAL
<PAGE> 119
Each party represents that it has executed this Agreement through its authorized
corporate representative:
WORLD WIDE TECHNOLOGY, INC. GTE COMMUNICATION SYSTEMS CORPORATION
By: /s/ David L. Steward By: /s/ M. R. Redmond
------------------------------------- -----------------------------------
Name: DAVID L. STEWARD Name: M. R. Redmond
Title: CHAIRMAN & CEO Title: Assistant Vice President-
Contract Management
Date: 1/13/98 Date: 1-9-98
FUJITSU NETWORKING
COMMUNICATIONS, INC.
By: /s/ George Chase APPROVED AS TO FORM AND LEGALITY
------------------------------------
Name: George Chase /s/ J. R. Seastrom
-------------------------------------
Title: Executive Vice President - FNC Attorney, GTE Telephone Operations
Date: 1-9-98 Date: 1/9/98
H - 2 - 11 CONFIDENTIAL
<PAGE> 120
[*Confidential treatment requested].
CONFIDENTIAL
<PAGE> 121
* Confidential treatment will be requested
H-2, A-1 CONFIDENTIAL
<PAGE> 122
CONFIDENTIAL
* Confidential treatment will be requested
<PAGE> 123
*Confidential treatment will be requested.
H-2, B-1 CONFIDENTIAL
<PAGE> 124
CONFIDENTIAL
*Confidential treatment will be requested.
<PAGE> 125
EXHIBIT H-2
ATTACHMENT D
MANUFACTURER'S WORKING HOUR SCHEDULE
AND
CONTACT INFORMATION
CONFIDENTIAL
<PAGE> 126
EXHIBIT H-2
ATTACHMENT D
MANUFACTURER'S WORKING HOUR SCHEDULE
AND
CONTACT INFORMATION
TELEPHONE CONSULTATION
To facilitate the repair, servicing and support of PRODUCT hereunder, CUSTOMER
may contact Manufacturer at 1-800/873-3822 with any questions that may arise
concerning repair, servicing and support of the PRODUCT, and, if required, to
specify any special packing of PRODUCT that might be necessary adequate
in-transit protection from transportation damage. CUSTOMER may call this number
twenty four (24) hours a day, seven (7) days a week.
H-2, D-1 CONFIDENTIAL
<PAGE> 127
CONFIDENTIAL
*Confidential treatment will be requested.
<PAGE> 128
*Confidential treatment will be requested.
H-2, E-1 CONFIDENTIAL
<PAGE> 129
EXHIBIT H-2
ATTACHMENT F
HARDWARE MAINTENANCE
(To be negotiated at a later date)
CONFIDENTIAL
<PAGE> 130
EXHIBIT H-2
ATTACHMENT G
SOFTWARE MAINTENANCE
CONFIDENTIAL
<PAGE> 131
EXHIBIT H-2
ATTACHMENT G
SOFTWARE MAINTENANCE
SELLER has granted to CUSTOMER a license (License), effective November 1, 1997,
for CUSTOMER's right to use Manufacturers FLEXR(R)-Plus Software; and
CUSTOMER desires for Manufacturer to provide maintenance services as described
below for the Software (SERVICES) and Manufacturer agrees to provide the
SERVICES in accordance with the terms and conditions of this Attachment.
1. STANDARD MAINTENANCE SERVICES
(a) Scope of Services - During the term of this Agreement,
Manufacturer will provide to CUSTOMER the following SERVICES
for the Software:
(1) Corrections of substantial defects in the Software that
impact its ability to provide service as advertised:
(2) Periodic Baseline Software Updates (BSU) that shall
contain FLEXR-Plus Software enhancements to support all
new features in the Fujitsu lightwave Multiplexers (FLM)
and FACTR-PRODUCT. BSUs ensure that FLEXR Plus Software
will always support the latest features in all
Manufacturer's network elements;
(3) Unlimited telephone support during normal business hours
(8 a.m. to 5 p.m. Central Time, Monday through Friday,
excluding holidays), including dial-up support via modem
to assist CUSTOMER in setup, usage and troubleshooting
Software. CUSTOMER may obtain assistance by calling
Manufacturer's Technical Assistance Center (TAC) at
1-800/873-3822;
(4) Emergency assistance outside of normal business hours
for critical problems. Critical problems are considered
to be those that cause a system failure that results in
the loss of all transaction processing capability and/or
the inability to restart the Software;
(5) Monthly call reports outlining trouble calls and
solutions placed through the Manufacturer TAC. The
tracking of these calls enables report generation
capabilities;
(6) Technical Information Bulletins to provide special
instructions and information;
FLEXR(R) is a registered trademark of Fujitsu Network Communications, Inc.
H-2, G-1 CONFIDENTIAL
<PAGE> 132
(7) FLEXR Plus Software documentation updates and revisions.
These updates will be in addition to the normal BSU
documentation;
(8) Up to two (2) free on-site visits by Manufacturer's
personnel per year. Each on-site visit is limited to
sixteen (16) working hours. Additional on-site visits
will be billed to CUSTOMER [*Confidential treatment will
be requested.]. Should Manufacturer perform the initial
Software installation, said installation shall count as
one (1) free on-site visit. Unused on-site visits shall-
not accumulate upon the yearly automatic renewal of this
Agreement; and
(9) Off-site tape backup storage to ensure backup of the
initial installation in the event the database becomes
corrupted or the hardware fails. Tape backups will be
made at the time of FLEXR-Plus Software installation and
during the free site visit. In addition, CUSTOMER shall
have the tight to perform its own tape backup at any
time and mail the tape to Manufacturer for storage. Any
tape backup made in the manner should be sent to
Manufacturer at the following address:
Fujitsu Network Transmission Systems, Inc.
2801 Telecom Parkway
Richardson, Texas 75082
Attn: Manager-Product Support
(b) Services Not Included. SERVICES do not include:
(1) Charged-for-enhancements that are offered, at
Manufacturer's sole discretion, to CUSTOMERS upon
payment of a license fee;
(2) Custom programming services;
(3) On-site support other than as set forth in subparagraph
1 (a)(9) above;
(4) Training; and
(5) Hardware and related supplies
2. CHARGED-FOR-ENHANCEMENTS
From time to time, at Manufacturer's sole discretion, Manufacturer will
make available to CUSTOMER charged-for-enhancements to the Software
that CUSTOMER may license from Manufacturer upon payment of the license
fee established by Manufacturer.
3. CUSTOM PROGRAMMING SERVICES
Manufacturer will provide custom programming services to CUSTOMER, as
agreed to in a written addendum to this Agreement, signed by both
parties, that specifies the custom programming services to be provided
by Manufacturer and the fee for the services. Custom programming
services shall include, but are not limited to, development of custom
computer programs and installation, training and maintenance with
respect to such computer programs.
H-2, G-2 CONFIDENTIAL
<PAGE> 133
4. ON-SITE SUPPORT
Manufacturer, upon receipt of a written request from CUSTOMER, will
provide to CUSTOMER on-site support at a mutually agreed upon time. For
on-site visits not covered by paragraph (1)(a)(8), above, CUSTOMER
agrees to pay Manufacturer all costs associate with the provision of
on-site support, including charges for Manufacturer's personnel,
expenses fortra- -1, and miscellaneous charges, and taxes pursuant to
paragraph 6(c) below.
5. TRAINING
Upon receipt of a written request from CUSTOMER, Manufacturer will
provide training at a mutually agreed upon time at the office of
Manufacturer in Richardson, Texas, unless Manufacturer agrees to
conduct the training elsewhere. CUSTOMER agrees to pay Manufacturer all
costs associated with this training, including (i) charges for
Manufacturer's instructors to train CUSTOMER's personnel, which shall
include a surcharge for training conducted at CUSTOMER's location, (ii)
charges for travel, lodging and miscellaneous expenses, and (iii) taxes
pursuant to Section 7 below.
*Confidential treatment will be requested.
H-2, G-3 CONFIDENTIAL
<PAGE> 134
7. PAYMENT TERMS
Manufacturer shall invoice CUSTOMER for maintenance fees due pursuant
to Section 6 herein. Payment shall be thirty (30) days from the date of
receipt of Manufacturers invoice. CUSTOMER agrees to pay all other
amounts due Manufacturer for SERVICES under this Agreement in
accordance with the payment schedule set forth on Manufacturer's
invoice for the SERVICES.
8. OBLIGATIONS OF CUSTOMER
(a) Customer Contact. Manufacturer requests that. CUSTOMER
identify its CUSTOMER contact designee. To the maximum extent
practicable, CUSTOMER's communications with Manufacturer will
be through the CUSTOMER contact.
(b) Facility and Personnel Access. CUSTOMER agrees to grant
Manufacturer access to CUSTOMER's facilities and personnel
concerned with the operation of the Software to enable
Manufacturer to provide SERVICES.
(c) No Modification of Software. CUSTOMER agrees not to modify or
otherwise alter the Software, unless specifically authorized
by the prior written consent of Manufacturer.
(d) Error Documentation. Upon detection of any error in the
Software, CUSTOMER, as requested by Manufacturer, agrees to
provide Manufacturer with a listing of output and any other
data, including databases and backup systems, that
Manufacturer reasonably may request in order to reproduce
operating conditions to those present when the error occurred.
H-2, G-4 CONFIDENTIAL
<PAGE> 135
EXHIBIT H-2
ATTACHMENT H
TRAINING TERMS AND STANDARDS
CONFIDENTIAL
<PAGE> 136
EXHIBIT H-2
ATTACHMENT H
TRAINING TERMS AND STANDARDS
1. Manufacturer shall provide qualified instructors and the necessary
instruction material, as mutually agreed upon, to train CUSTOMER's
personnel in the marketing, installation, database preparation and
administration, operation, and maintenance of PRODUCT furnished in a
cost effective manner.
2. Manufacturer shall also establish and/or maintain curricula to include,
but not limited to, the following:
(a) PRODUCT overview and introduction (e.g., features, functions,
benefits, nomenclature, architecture);
(b) Engineering, installation and maintenance;
(c) Basic operation and administration;
(d) Sizing, configuration and PRODUCT ordering;
(e) Planning and budgetary guidelines; and
(f) Other subjects deemed necessary by CUSTOMER to support the
PRODUCT.
3. Manufacturer shall change, modify, update and/or add training programs
as new PRODUCT features/releases are made available.
4. Manufacturer shall maintain a technical training facility and provide
CUSTOMER a course listing of all training courses available to
CUSTOMER, notify CUSTOMER of any curriculum changes. and identify those
courses that are critical in the support of the PRODUCT. Training shall
be offered on a regular basis and Manufacturer shall attempt to meet
any reasonable request for additional or unscheduled training required
by CUSTOMER. Additional courses may be scheduled with sixty (60) days
prior written notice.
*Confidential treatment will be requested.
H-2, H-1 CONFIDENTIAL
<PAGE> 137
*Confidential treatment will be requested.
7. Manufacturer shall, at no charge to CUSTOMER, provide copies of all
training materials to the CUSTOMER's training department for review of
quality and applicability to CUSTOMER's training requirements.
Manufacturer shall provide a plan for the correction of deficiencies
identified in such review.
8. If requested by CUSTOMER, Manufacturer shall, at a mutually agreeable
cost, conduct "Train the Trainer" classes on sales, installation,
maintenance, and engineering of Manufacturers PRODUCT for CUSTOMER
instructors, at a mutually agreed upon location.
9. Manufacturer shall provide, upon CUSTOMER request, one master (camera
ready) copy of any sales, installation, maintenance, and engineering
courseware required for CUSTOMER's instructors to train on
Manufacturer's PRODUCT. The courseware shall contain an instructor
guide, student materials and any additional aides required to present
the course. These master copy materials shall be provided at no cost.
Manufacturer shall provide CUSTOMER with reproduction rights for these
materials. These materials shall not be distributed to any nonCUSTOMER
organization.
10. CUSTOMER may audit Manufacturer conducted training to ascertain if the
materials are presented in a quality manner. The costs of such audits
shall be at no charge. Any recommendations offered by CUSTOMER shall be
incorporated for future training classes in a timely manner.
11. Manufacturer certified CUSTOMER instructors shall be afforded the same
consideration as Manufacturer's instructors in regard to course
modifications and updates. Manufacturer shall assure that CUSTOMER's
instructors have the same updated material as Manufacturer's
instructors.
12. Manufacturer shall provide CUSTOMER's instructors, at no cost,
technical/operational support in the form of reasonable telephone
consulting assistance relating to the content of courseware.
13. Manufacturer shall provide, at the actual cost of reproduction, copies
of all training materials required to support CUSTOMER's embedded base
of PRODUCT that Manufacturer may have declared as discontinued or
obsolete.
14. Manufacturer agrees to provide on-site training to CUSTOMER. Courses
may be scheduled with sixty (60) days prior written notice.
[*Confidential treatment will be requested.] Instructor's travel and
living expenses shall be the responsibility of Manufacturer.
Manufacturer shall provide normal classroom non-traffic bearing
equipment.
H-2, H-2 CONFIDENTIAL
<PAGE> 138
*Confidential treatment will be requested.
CONFIDENTIAL
<PAGE> 139
EXHIBIT H-2
ATTACHMENT J
ADDITIONAL MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
CONFIDENTIAL
<PAGE> 140
EXHIBIT H-2
ATTACHMENT J
ADDITIONAL MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
1. SOFTWARE LICENSE
(a) Manufacturer has granted to CUSTOMER through SELLER a license
for CUSTOMER's right to use software owned by Manufacturer.
(b) If Manufacturer discontinues support of the Software, to the
extent that Manufacturer has such rights, Manufacturer agrees
to furnish to CUSTOMER all source code (in machine readable
format), technical documentation and other information
required for the maintenance, modification or correction of
the most recent version of the Software provided to CUSTOMER.
(c) Purchasers of the Software and related documentation from
CUSTOMER shall be required to execute and shall be subject to
the Software Sublicense Agreement, attached hereto and
incorporated herein as Addendum to this Attachment J, which
requires such customer(s) to abide by the requirements
therein, to use the Software and related documentation solely
for the purpose of provisioning, maintaining, and monitoring
such CUSTOMER's and/or customers network elements, and to
consent to the enforcement of the provisions thereof directly
by Manufacturer. Use of the Software by customer(s) of
CUSTOMER shall be solely in conjunction with the PRODUCT
furnished by Manufacturer to CUSTOMER hereunder and shall be
restricted to provisioning, maintaining, and monitoring such
CUSTOMER's and/or customer's internal network elements.
(d) CUSTOMER shall promptly notify Manufacturer that CUSTOMER has
furnished its customer with Software and documentation
licensed hereunder and shall provide to Manufacturer a copy of
the signed Software Sublicense Agreement.
(e) Upon removal of CUSTOMER's PRODUCT utilizing the Software
licensed hereunder from its customer's premises, CUSTOMER
shall use commercially reasonable efforts to obtain from its
customer a signed form certifying that the Software and
documentation have been returned in their entirety to
CUSTOMER.
(f) No right or license shall be implied by estoppel or otherwise,
other than the rights and license expressly granted in this
Agreement. All ownership rights, title, and interest in the
Software are and shall remain with Manufacturer subject,
however, only to the license specifically granted herein.
(g) Any and all trademarks and trade names that Manufacturer uses
in connection with the license granted hereunder are and
remain the exclusive property of Manufacturer. This Agreement
gives CUSTOMER no right therein except a limited license to
reproduce trademarks and trade names as necessary for and for
the sole purpose of allowing CUSTOMER to fully promote and
market the Software pursuant to the terms of this Agreement.
H-2, J-1 CONFIDENTIAL
<PAGE> 141
(h) For any Software acquired directly or indirectly on behalf of
a unit or agency of the United States Government, this
provision applies.
(1) For civilian agencies: Software
(i) Was developed at private expense, is existing
computer Software and the part of the Software
was developed with government funds;
(ii) Is a trade secret of Manufacturer for all
purposes of the Freedom of Information act;
(iii) Is "restricted computer Software" submitted with
restricted rights in accordance with the
subparagraphs (a) through (d) of the Commercial
Licensed Materials-Restricted Rights clause at
52.227-19 of the Federal Acquisition Regulations
(FAR) and its successors and as expressly stated
in Manufacturer's standard commercial agreement
incorporated into the contract or purchase order
between Manufacturer and the government entity,
except that the government agency shall not have
the right to disclose the Software to support
service contractors or their subcontractors
without Manufacturer's prior written consent.
(iv) In all respects, is proprietary data of
Manufacturer; and
(v) Is unpublished and all rights are reserved under
the copyright laws of the United States.
(2) For units of the Department of Defense (DOD): The
Software is licensed only with "Restricted Rights" as
that term is defined in the DOD Supplement to the FAR,
clause 52.227-7013(c)(1)(ii), Rights in Technical Data
and Computer Software and its successors, and use,
duplication or disclosure is subject to the restrictions
set forth therein, with the exception that the
government agency shall not have the right to disclose
the Software to subcontractors or agents of the
government without Manufacturer's prior written consent.
2. MANUFACTURER'S INFRINGEMENT
(a) Manufacturer agrees to indemnify, defend and hold harmless
CUSTOMER and its AFFILIATES, shareholders, directors,
officers, employees, contractors, agents and other
representatives from all demands, claims, actions, causes of
action, proceedings, assessments, losses, damages,
liabilities, settlements, judgments fines, penalties,
interest, cost and expenses (including fees and disbursements
of counsel) arising from or relating to any actual or alleged
infringement or misappropriation of any patent, trademark,
copyright, trade secret or any actual or alleged violation of
any other intellectual property rights arising from or in
connection with the PRODUCT provided or the SERVICES performed
under this Agreement regardless of whether such PRODUCT or
SERVICES form the entire basis or only a portion of the basis
for such claims of infringement, misappropriation or
violation; and if the use or resale shall be enjoined,
Manufacturer shall, at its option, replace
H-2, J-2 CONFIDENTIAL
<PAGE> 142
the enjoined PRODUCT(S) with suitable substitute free of the
infringement or misappropriation, or shall procure for
CUSTOMER's benefit a license or other right to use or resell
the same, or shall remove the enjoined PRODUCT(S) and refund
to CUSTOMER the amount paid to SELLER therefor, plus, under
any option, Manufacturer shall indemnify CUSTOMER's direct
(i.e., punitive damages and license fees, royalties or other
right to use fees paid to a third party) damages for such
infringing or misappropriated PRODUCT(S). Notwithstanding
anything to the contrary contained in this Agreement
(including, but not limited to, Section 3, INDEMNIFICATION AND
INSURANCE), the provisions of this Section 2, MANUFACTURER'S
INFRINGEMENT, shall, as to Manufacturer, govern the rights of
CUSTOMER and its AFFILIATES, shareholders, directors,
officers, employees, contractors, agents and other
representatives to indemnification for claims of infringement,
misappropriation or violation of intellectual -property
rights. Manufacturer shall have total control over the
defense, negotiation and settlement of each such case,
provided, however, that CUSTOMER shall be permitted to
participate in such defense negotiation, or settlement by
counsel of its own choosing and expense.
(b) Except for the negligence provisions, the procedures set forth
in Section 3, INDEMNIFICATION AND INSURANCE, shall apply in
the case of any claims of infringement, misappropriation or
violation of intellectual property rights for which
indemnification will be sought. CUSTOMER shall give
Manufacturer prompt written notice of any such claims of
infringement or misappropriation and of all such suits and,
except as otherwise indicated herein, when Manufacturer is
obligated to indemnify CUSTOMER hereunder, full opportunity
and authority to assume the defense thereof, including
appeals, and to settle such suits, and shall furnish upon
Manufacturer's request and at Manufacturer's expense all
disclosed information and reasonable assistance available to
CUSTOMER.
(c) THE FOREGOING STATES THE ENTIRE LIABILITY OF MANUFACTURER WITH
RESPECT TO INFRINGEMENT OF PATENTS, TRADEMARKS OR COPYRIGHTS
BY ANY PRODUCT DELIVERED UNDER THIS AGREEMENT.
3. INDEMNIFICATION AND INSURANCE
(a) Manufacturer shall indemnify, defend, and hold harmless
CUSTOMER and its affiliates, officers, agents, and employees,
from all claims, suits, actions, demands, damages,
liabilities, expenses (including fees and disbursements of
counsel), judgments, settlements and penalties of every kind
based on (i) personal injury, death, or property damage to the
extent any of the foregoing is proximately caused by either
any defective PRODUCT provided by Manufacturer, its officers,
employees, subcontractors or agents, or by the negligent or
willful acts or omissions of Manufacturer, its officers,
employees subcontractors or agents, or (ii) strict liability
in tort or products liability of any other kind in connection
with and PRODUCT provided by Manufacturer, its officers,
employees, subcontractors or agents or the use, resale or
distribution of any such PRODUCT by CUSTOMER; or (iii) for
indemnification for claims of third parties, arising under
Section 2, MANUFACTURER'S INFRINGEMENT. The foregoing
indemnity, to the extent permitted by law, shall apply in the
case of all claims that arise form the negligence, misconduct
or other fault of CUSTOMER, provided, however, that if a claim
is the result of the sole negligence, misconduct or fault of
CUSTOMER or its
H-2, J-3 CONFIDENTIAL
<PAGE> 143
AFFILIATES(s) Manufacturer shall have no obligations of
indemnification hereunder. If a claim is the result of the
joint negligence, joint misconduct or joint fault of
Manufacturer and CUSTOMER, the amount of such claim for which
CUSTOMER is entitled to indemnification shall be limited to
that portion of such claim that is attributable to the
negligence, misconduct or other fault of Manufacturer. The
obligations of this provision are in addition to
Manufacturer's obligation to provide insurance and shall not
be limited by any limitation on the amount or type of damages,
compensation or benefits payable by Manufacturer under
Worker's Compensation Acts, Longshoremen and Harborworker's
Act, Disability Benefits Act or any other employee benefit
act.
(b) LIMITATION OF LIABILITY. Notwithstanding any other provision
of this Agreement, Manufacturer's entire liability for
monetary damages under this Agreement shall be as follows:
(1) For real or tangible property damage or personal injury
or death proximately caused by defective PRODUCT
provided by Manufacturer or the negligent or willful
acts of omissions of Manufacturer, the amount of the
direct damages up to an unlimited amount; and
(2) For any payments made by CUSTOMER to CUSTOMER's customer
pursuant to an agreement between CUSTOMER and CUSTOMER's
customer whereby CUSTOMER agrees to indemnify its
customer for such customer's claims for lost revenues
which payments are owed as a result of Manufacturer's
defective PRODUCT or the negligent or willful acts or
omissions of Manufacturer or its employees or agents;
and
(3) For all other loss or damage incurred by CUSTOMER
because of loss of revenue claims of third parties
awarded by a court of competent jurisdiction or
resulting from a settlement of such a claim filed in a
court of competent jurisdiction or resulting from a
settlement of such a claim asserted outside of court
(with all such settlements subject to the prior approval
of Manufacturer and CUSTOMER) and asserted against
CUSTOMER by any third party for CUSTOMER's failure to
provide services to such party as a result of
Manufacturer's defective PRODUCT or the negligent or
willful acts or omissions of Manufacturer or its
employees or agents;
(4) The total liability of Manufacturer to CUSTOMER pursuant
to Sections (b)(2) and (b)(3) shall be limited to a
maxim per occurrence of three percent (3%) of actual
revenues earned by Manufacturer for PRODUCT purchased by
CUSTOMER during the recent twelve (12) month period or
one million two hundred fifty dollars ($1,250,000),
which ever amount is greater.
(5) The total liability of Manufacturer to CUSTOMER for
indemnification for claims of third parties' lost
revenues arising under Section 2, MANUFACTURER'S
INFRINGEMENT, shall be limited to a maxim per occurrence
of five percent (5%) of actual revenues earned by
Manufacturer for PRODUCT purchased by CUSTOMER during
the recent twelve (12) month period or two million five
hundred thousand dollars ($2,500,000), which ever amount
is greater. Manufacturer's liability for CUSTOMER's
H-2, J-4 CONFIDENTIAL
<PAGE> 144
direct damages, as defined in Section 2, MANUFACTURER'S
INFRINGEMENT, shall be unlimited.
EXCEPT AS SET FORTH ABOVE, NEITHER PARTY SHALL BE LIABLE
FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES OF ANY. KIND OR NATURE.
(6) CUSTOMER shall promptly notify Manufacturer in writing
of any suits, claims or demands covered by this
indemnity. Promptly after receipt of such notice,
Manufacturer shall assume the defense of such claim with
counsel reasonably satisfactory to CUSTOMER. If
Manufacturer fails, within reasonable time after receipt
of such notice, to assume the defense with counsel
reasonably satisfactory to CUSTOMER. CUSTOMER shall have
the right to undertake the defense, compromise and
settlement of such claim for the account and at the
expense of Manufacturer. Notwithstanding the above, if
CUSTOMER in its sole discretion so elects, CUSTOMER may
also participate in the defense of such actions by
employing separate counsel at its expense, without
waiving Manufacturer's obligation to indemnify or
defend; provided that such participation shall not
adversely affect Manufacturer's ability to defend or
settle the claim. Manufacturer shall not settle or
compromise any claim or consent to the entry of any
judgment without the prior written consent of CUSTOMER,
if such claim or judgment is based upon the joint fault,
negligence or misconduct of Manufacturer and CUSTOMER,
and without an unconditional release of all liability by
each claimant or plaintiff to CUSTOMER with respect to
claims for which Manufacturer is obligated to indemnify
CUSTOMER.
(7) Manufacturer agrees to maintain during the term of this
Agreement all insurance or bonds required by law or this
Agreement, including, but not limited to (i) Worker's
Compensation and related insurance as prescribed by the
law of the state in which Manufacturer's services are
performed or PRODUCT are delivered; (ii) employer's
liability insurance with limits of at least one million
dollars ($1,000,000) for each occurrence, and (iii)
comprehensive general liability insurance including
products liability, and if the use of motor vehicles is
required, comprehensive motor vehicle liability
insurance, each with limits of at least two million
dollars ($2,000,000) for combined single limit for
bodily injury, including death, and/or property damage.
Manufacturer shall cause CUSTOMER to be included as an
additional insured under said policies (as "GTE
Corporation and its affiliates and subsidiaries") and
CUSTOMER's coverage under such policies shall be
primary. Manufacturer shall waive its rights of
subrogation against CUSTOMER for Workers' Compensation
claims. Manufacturer shall, prior to rendering such
services, furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of
such coverage, the expiration date of each policy, and
stating that no material change or cancellation of any
such policy shall be effective unless thirty (30) days'
prior written notice is given to CUSTOMER.
H-2, J-5 CONFIDENTIAL
<PAGE> 145
EXHIBIT H-2
ATTACHMENT J
SCHEDULE 1
SOFTWARE SUBLICENSE AGREEMENT
CONFIDENTIAL
<PAGE> 146
EXHIBIT H-2
ATTACHMENT J
SCHEDULE 1
SOFTWARE SUBLICENSE AGREEMENT
SOFTWARE SUBLICENSE AGREEMENT
This Software Sublicense Agreement (the "Agreement") is made this day of
, 1996, by and between
("Licensee") and
("Sublicensee"), a
corporation, with offices at
.
The software defined below is sublicensed in accordance with this Agreement and
in accordance with the terms of Agreement No. , as amended thereto, by and
between Licensee and Fujitsu Network Communications, Inc. ("Licensor").
1. GRANT OF LICENSE.
The Software PRODUCT is the specified version of Licensor's FLEXR(R)
and/or FLEXR(R) PLUS (the "Software"). The Software is sublicensed
subject to the terms and conditions of this Agreement. The Software
includes all copies of the software program and its related supporting
materials. Licensee grants Sublicensee a personal, nontransferable and
non-exclusive sublicense to use the Software on a single computer
accessing the basic number of Network Elements of either Licensee or
Sublicensee. Sublicensee may not: (i) distribute, sublicense or copy
any portion of the Software; (ii) modify or prepare derivative works
from the Software; (iii) publicly display visual output of the
Software; (iv) transmit the Software electronically by any means (v)
use the Software in a multiple computer or multiple user arrangement
other than the single-processing or multiprocessing microcomputing unit
accessing the basic number of Network Elements of either Licensee or
Sublicensee. Sublicensee may copy the Software into any
machine-readable form for backup or archival purposes in support of
Sublicensee's use on a single machine. Any portion of the Software
merged into another program will continue to be subject to the terms
and conditions of this Agreement. Sublicensee agrees that the Software
belongs to Licensor, and Sublicensee agrees to keep confidential and
use Sublicensee's best efforts to prevent and protect the contents of
the Software from unauthorized disclosure.
FLEXR(R) is a registered trademark of Fujitsu Network Communications,
Inc.
H-2, J-1 CONFIDENTIAL
<PAGE> 147
2. TERMINATION
The license terminates if Sublicensee fails to comply with any term or
condition of this Agreement; Sublicensee agrees upon such termination
to return the Software together with all copies, modifications, and
merged portions in any form to Licensee.
3. CONFIDENTIALITY
Sublicensee shall maintain the Software in strict confidence and shall
keep on all copies the same copyright notice as contained on the
original. All copies of the Software or any part thereof shall be the
property of Licensor. Sublicensee agrees that neither Sublicensee, its
agents nor its employees shall in any manner use, make available, make
known, divulge or communicate any information with respect to the
Software which might enable copying all or any portion of the Software
or the development of similar computer program or system. Sublicensee
agrees to take all appropriate action to protect the confidential and
proprietary information included in the Software, including appropriate
instruction and agreement with its employees.
4. OTHER RESTRICTIONS.
Sublicensee may not revise, reverse engineer, decompile or disassemble
the Software in whole or in part or permit any third party to do or
attempt the same.
*Confidential treatment will be requested.
6. REMEDY.
Licensor and/or Licensee's entire liability and Sublicensee's exclusive
remedy shall be, at Licensee's option, either (a) return of the price
paid, or (b) repair or replacement of the Software that does not meet
[*Confidential treatment will be requested.] and that is returned to
Licensee. This [*Confidential treatment requested] is void if failure
of the Software has resulted from accident, abuse or misapplication.
H-2, J-2 CONFIDENTIAL
<PAGE> 148
7. [*Confidential treatment requested].
8. NO LIABILITY FOR CONSEQUENTIAL DAMAGES.
IN NO EVENT SHALL LICENSOR AND/OR LICENSEE BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL OR SPECIAL DAMAGES
OF ANY KIND OR NATURE, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR LOSS OF DATA OR ANY OTHER
LOSS ARISING OUT OF THE USE OR INABILITY TO USE THIS SOFTWARE PRODUCT, EVEN
IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. ENTIRE AGREEMENT
Each party acknowledges that it has read and understood this Agreement and
agrees to be bound by its terms, and that the Agreement, the contracts and
its amendments is the complete and exclusive agreement of the parties and
supersedes all other communications, oral or written, between the parties
relating to the Agreement's subject matter. Any change to this Agreement
shall not be valid unless it is in writing signed by both parties.
AGREED TO:
LICENSEE SUBLICENSEE
By: By:
Printed Name: Printed Name:
Title: Title:
Date: Date:
H-2, J-3 CONFIDENTIAL
EXHIBIT I
CENTURY COMPLIANCE
H-2, J-4 CONFIDENTIAL
<PAGE> 149
EXHIBIT I
CENTURY COMPLIANCE
1. CENTURY COMPLIANCE
(a) When used in this Exhibit with initial capital letters, the
following terms have the respective meanings given below.
(1) "Procured System" means the computer software, computer
firmware, computer hardware (whether general or special
purpose), documentation, data, and other similar or
related items of the automated, computerized, and/or
software system(s) that are provided by or through
SELLER pursuant to this Agreement, or any component part
thereof, and any services provided by or through SELLER
in connection therewith.
(2) "Calendar-Related" refers to date values based on the
Gregorian calendar, as defined in Encyclopedia
Britannica, 15th edition, 1982, page 602, and to all
uses in any manner of those date values, including
without limitation manipulations, calculations,
conversions, comparisons, and presentations.
(3) "Date Data" means any Calendar-Related data in the
inclusive range January 1, 1900, through December 31,
2050, which the Procured System uses in any manner.
(4) "System Date" means any Calendar-Related data value in
the inclusive range January 1, 1985, through December
31, 2035 (including the natural transition between such
values), which the Procured System shall be able to use
as its current date while operating.
(5) "Century Compliant" means that the Procured System
satisfies the requirements set forth in Sections 1.(b),
1.(c), and 1.(d) below.
(6) "Century Noncompliance" means any failure of the
Procured System to be Century. Compliant.
(b) SELLER represents that, in connection with Calendar-Related
data and Calendar-Related processing of Date Data or of any
System Date, the Procured System will not malfunction, will
not cease to function, will not generate incorrect data, and
will not produce incorrect results.
(c) SELLER further represents that, in connection with providing
Calendar-Related data to and accepting Calendar-Related data
from other automated, computerized, and/or software systems
and users via user interfaces, electronic interfaces, and data
storage, the Procured System represents dates without
ambiguity as to century.
I-1 CONFIDENTIAL
<PAGE> 150
(d) SELLER further represents that SELLER has verified through
testing that the Procured System is Century Compliant and that
testing included, without limitation, each of the following
specific dates and the transition to and from each such date:
December 31, 1998; January 1, 1999; September 9, 1999;
September 10, 1999; December 31, 1999; January 1, 2000;
February 28, 2000; February 29, 2000; March 1, 2000; December
31, 2000; January 1, 2001; December 31, 2004; and January 1,
2005.
(e) These representations survive the expiration or earlier
termination of this Agreement.
2. INTERFACING
If the Procured System is a Commercial-Off-The-Shelf (COTS) product, it
shall have the present capability, which can be readily utilized by
CUSTOMER, of providing Calendar-Related data to and accepting
Calendar-Related data from other automated, computerized, and/or
software systems and users in a four-digit CCYY format, where CC are
the two digits expressing the century and YY are the two digits
expressing the year with that century (e.g., 1996, 2003 and 2027).
3. CENTURY NONCOMPLIANCE REMEDY
In the event the Procured System is Century Noncompliant in any
respect, SELLER shall, at no cost to CUSTOMER, promptly correct the
Century Noncompliance and provide the corrected Century Compliant
Procured System to CUSTOMER within ninety (90) days after receipt of a
written request from CUSTOMER, unless otherwise agreed by CUSTOMER in
writing.
4. NONCOMPLIANCE NOTICE
In the event SELLER becomes aware of (i) a possible or an actual
Century Noncompliance in the Procured System or (ii) any international,
governmental, industrial, or other standard (proposed or adopted)
regarding Calendar-Related data and/or processing, or it begins any
significant effort to conform the Procured System to any such standard,
SELLER shall promptly inform CUSTOMER of all relevant information (and
timely provide CUSTOMER updates to such information) with respect to
SELLER's knowledge. SELLER shall respond promptly and fully to
inquiries by GTE (and timely provide updates to any responses provided
to GTE) with respect to (i) any possible Century Noncompliance in the
Procured System or to (ii) any international, governmental, industrial,
or other standards. In the foregoing, the use of "timely" means
promptly after the relevant information becomes known to or is
developed by or for SELLER.
I-2 CONFIDENTIAL
<PAGE> 1
EX. 10.13
CONTRACT # 99006326
SBC OPERATIONS, INC. (BUYER)
&
WORLD WIDE TECHNOLOGY, INC. (SELLER)
INDEX PAGE
----
1. ACCESS 2
2. CHANGES TO MATERIAL-PLUG-INS 2
3. FREIGHT CLASSIFICATION 2
4. INVOICING AND PAYMENTS FOR PLUG-INS 2
5. MARKING-PLUG-INS 4
6. MONTHLY ORDER AND SHIPMENT REPORTS 4
7. NOTICES 5
8. OPTION TO EXTEND 5
9. * 5
10. REPAIRS NOT COVERED UNDER WARRANTY 5
11. SCOPE OF AGREEMENT 7
12. SHIPPING AND PACKING-PLUG-INS 7
13. TERMS OF AGREEMENT 8
14. *
[*Confidential treatment requested]
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
Contract # 99006326
TERMS AND CONDITIONS
SBC OPERATIONS, INC. (BUYER)
175 E. Houston
San Antonio, Texas 78205
And
WORLD WIDE TECHNOLOGY, INC. (SELLER)
127 Weldon Parkway
St. Louis, Missouri 63043-3101
PREAMBLE
This Contract is effective upon the date of execution by the last party, is
between SBC Operations, Inc. (Buyer) a Delaware corporation, for itself and its
affiliated companies (hereinafter Buyer) and World Wide Technology, Inc.
(Seller) a Missouri corporation. This Contract # 99006326 incorporates all the
terms and conditions in our General Agreement # 98005906 between the parties
unless specifically otherwise provided herein. In the event that the terms and
conditions differ, this Contract # 99006326 shall prevail. Buyer and Seller
agree that the term Buyer includes any of Buyer's affiliates, and the term
Seller shall mean either World Wide Technology, Inc. (WWT) or Fujitsu, its
Original Equipment Manufacturer (OEM) supplier, as applicable. Buyer and Seller
agree that World Wide Technology, Inc. (Seller) will be the single point of
contact in resolving all contractual issues between Buyer and Seller and/or
Fujitsu, its OEM supplier, so long as it is technically and legally feasible.
1
Proprietary Information
The information contained herein is not for use or disclosure outside of SBC
Operations, Inc., Southwestern Bell Telephone Company, Pacific Bell or their
affiliated and subsidiary companies except under written agreement by the
contracting company.
<PAGE> 3
TERMS AND CONDITIONS
ACCESS
Each party shall, at no charge, permit the other reasonable access to its
premises in connection with the performance of this Contract. Each party shall
coordinate with the other party prior to visiting such premises.
CHANGES TO MATERIAL-PLUG-INS
In addition to other obligations under this Contract, Seller agrees to notify
Buyer, at least thirty (30) days in advance, except for those cases where an
extremely unsatisfactory condition requires immediate action, of any change to
be made in the MATERIAL subject to the provisions of this Contract that would
impact either reliability or the form, fit or function of the MATERIAL.
Seller shall furnish a Product Change Notice (PCN) for all changes to MATERIAL
provided hereunder in accordance with Generic Requirements GR-209-CORE,
incorporated herein by this reference, and as may be amended at any time and
from time to time, and any successor documents. The final classification of any
PCN proposed by Seller will be as mutually agreed between Buyer and Seller. Such
PCNs shall be e-mailed to:
PCN Administrator
2200 N. Greenville Ave., Rm. 3E
Richardson, Texas 75082-4412
Tel # (972) 454-6313
e-mail: [email protected]
For PCNs classified as "A" or "AC", Seller agrees to promptly modify or
replace, at no charge to Buyer or Buyer's Independent Contract (WWT), all
MATERIAL affected by the changes specified in the PCN, and all relevant
documentation in accordance with GR-209-CORE. Buyer's Independent
Contract or (WWT) shall include the latest Human Equipment Catalog Item (HECI)
plug-ins in the kits specified in [*Confidential treatment requested] for all
class A and AC changes. In an effort to achieve resolution of widespread or
multiple defects, Seller may have to visit numerous field locations to modify
or replace defective units of MATERIAL. Buyer will escort and may assist the
Seller in resolving quality defects, as well as, to correct a variety of
associated inventory records. Buyer may at its option, submit an invoice or
take a credit against amounts owed to recover all expenses incurred by Buyer in
correcting Seller's quality defects. Seller will be liable for all costs
associated with resolving Seller's quality defects.
For changes classified as "B" or "D", Seller agrees to notify Buyer of the exact
nature thereof and discuss with Buyer, details regarding the proposed
implementation procedure as outlined in GR-209-CORE for affected MATERIAL which
is being or will be manufactured. Buyer will determine at it's option, if
MATERIAL previously shipped will be modified or replaced. Should such
modification or replacement be deemed necessary, Seller will arrange therefore
at prices and schedules to be mutually agreed upon between Buyer and Seller
prior to implementation. Relevant documentation for such affected MATERIAL will
be provided by Seller at no charge.
Any revisions, amendments, or successors to GR-209-CORE will become effective
and thereafter applicable under this Contract thirty (30) days after such
revision is released by the Buyer except for those particular revisions to which
Seller specifically objects within twenty-one (21) days of receipt, providing
therewith an explanation of each such objection. Upon each such objection, Buyer
and Seller will attempt to negotiate a resolution to any such objections.
Notwithstanding the foregoing, any revision made to address situations
potentially harmful to the SBC network, the Premises, to address Premise
security issues, to comply with statutory and/or regulatory requirements, or to
the SBC Emergency Operating Procedures will become effective and applicable
immediately notwithstanding any objection by Seller. In the event that Buyer and
Seller fail to reach agreement on any PCN proposed by Seller, in addition to all
other rights under this Contract, Buyer will have the right without penalty to
terminate this Contract and any or all Orders for MATERIAL affected by such
PCN(s) that may have been issued by Buyer.
FREIGHT CLASSIFICATION
Material purchased under this Contract shall be classified as National Motor
Freight Classification (NMFC) item 63240 Class 85.
INVOICING & PAYMENT FOR PLUG-INS
Seller agrees to invoice Buyer within five (5) business days from date of
shipment to Buyer. Taxes, if applicable, should be in accordance with the local,
city, and state jurisdictions.
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<PAGE> 4
PURCHASE ORDERS
a) Seller shall provide invoices to SOUTHWESTERN BELL, electronically via
Electronic Data Interchange (EDI) on a weekly basis, or as requested by
Buyer's billing contacts listed below. Seller agrees to preclude taxes
from shipments to the Material Distribution Center (MDC) located in
Lancaster, Texas. Seller shall include invoices to Southwestern Bell
details for: 1) invoice #; 2) invoice date; 3) Ship date; 4) Purchase
Order (PO) #; 5) seven (7) digit HECI code; 6) quantity; 7) unit price;
8) total amount owed; 9) taxes, if applicable, based on destination other
than MDC in Lancaster, TX; 10) transportation charges; 11) applicable
discounts.
REPAIR SERVICE ORDERS
a) Seller shall provide invoices to SOUTHWESTERN BELL, electronically via EDI
on a weekly basis, or as requested by Buyer's billing contacts listed
below. Seller shall include in invoices to Southwestern Bell details for:
1) invoice #; 2) invoice date; 3) Ship date; 4) Repair Service Order (RSO)
#; 5) seven (7) digit HECI code; 6) quantity; 7) unit price; 8) detailed
breakdown of charges, repair, modification, test, no trouble found (NTF)
etc.; 9) total amount owed; 10) transportation charges; 11) taxes, if
applicable; 12) applicable discounts.
PURCHASE/REPAIR ORDERS
b) Seller shall provide invoices to PACIFIC BELL via monthly summary
invoicing, in the format requested by Pacific Bell. Seller shall include
in all monthly summary invoices to Pacific Bell details for: 1) order
date; 2) ship date; 3) shipping notice #; 4) seven (7) digit HECI code; 5)
quantity; 6) description of services; 7) unit price; 8) unit serial #; 9)
warranty information; 10) tax information, if applicable; 11)
transportation charges; 12) total amount owed; 13) applicable discounts.
c) Seller shall provide invoices to Buyer's Independent Contractor or
Contractors in the format requested by said Contractor, and shall at a
minimum include all the information requested by Buyer as listed above by
region (Southwestern Bell or Pacific Bell). Buyer agrees to pay for
Material/Services net thirty (30) days from Seller's invoice date or
Buyer's receipt of Material/Services, whichever is later. Seller shall
include transportation method on invoices. Seller shall acknowledge receipt
of Buyer's or Buyer's Independent Contractors Order within forty-eight (48)
hours of receipt and will advise Buyer and or Buyer's Independent
Contractor as to whether or not Seller will meet the delivery interval
specified on the order, delineating any shortages by HECI, quantity,
shortage reason, and expected ship date for the specified shortages. Buyer
may order plug-ins with a notation of "Do Not Sub"...and Seller agrees to
ship the plug-ins as listed on the Orders. However, if Buyer does not
include "Do Not Sub" on the Orders ...then Seller may use substitutions of
a higher series plug only and not a lower series plug. Seller to obtain new
Common Language Equipment Identifier (CLEI) codes from Telcordia (formerly
Bellcore) and the ordering of function code chaining in the Trunks
Integrated Record Keeping System (TIRKS) through Telcordia as stipulated in
GR-2977-CORE, prior to requesting Buyer's authorization for the shipment of
any changed, modified, and or potential plug-in substitutions. Seller shall
ship and invoice using the most current HECI codes on all Class A and AC
changes. Seller agrees to notify Buyer or Buyer's Independent Contractor of
any such substitutions prior to shipment to Buyer or Buyer's Independent
Contractor. All other invoices shall be handled as stated on the Orders.
Southwestern Bell Pacific Bell
Manager-Inventory Management/PICS LPO Engineer Support Services/Pace
One Bell Plaza, floor 20 2829 Watt Ave., Rm. 250B
Dallas, Texas 75202 Sacramento, California 95851
(214) 464-5298 (916) 972-4512
d) Buyer shall pay Seller within thirty (30) days of the date of Material
installation/acceptance of Material, or Seller's invoice date, whichever
is later. However, payment for shortages, non-conforming Material or
Services, and portions of any invoice in dispute, may be withheld by Buyer
until such problem has been resolved. INVOICES RECEIVED BY BUYER MORE THAN
ONE (1) YEAR AFTER THE DELIVERY OF PRODUCTS OR PERFORMANCE OF SERVICES ARE
UNTIMELY AND BUYER SHALL HAVE NO OBLIGATION TO PAY SUCH INVOICES.
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<PAGE> 5
e) Invoices for or including freight charges shall be accompanied by legible
copies of prepaid freight bills, express receipts or bills of lading
supporting the invoice amounts. Such invoices shall include (1) carrier's
name, (2) date of shipment, (3) number of pieces, (4) weight and (5)
freight classification.
f) If Buyer disputes any invoice rendered or amount paid, Buyer shall so
notify Seller and the parties shall use their best efforts to resolve such
dispute expeditiously.
All claims for moneys due or to become due from Buyer will be subject to
deduction by Buyer for any setoff or counterclaim for moneys due or become due
from Seller, whether under this Contract or otherwise. Any amount due Buyer that
is not so applied against Seller's invoices for any reason shall be paid to
Buyer by Seller within thirty (30) days after demand by Buyer.
MARKING-PLUG-INS
a) Unless otherwise agreed by the parties, all Material shall be marked for
identification purposes in a conspicuous or readily accessible location at
no additional charge including, but not limited to, the following: (1)
Seller's model/serial number/issue number; (2) Month and year of
manufacturing; (3) Warranty expiration date; (4) Bar-coding in accordance
with the Telecommunications Industry Forum (TCIF) standards, which
includes the Equipment Category Item (ECI) number, and (5) for plug-in
equipment; also in accordance with the current requirements outlined in
the GR documents listed below.
b) Containers of Material shall be marked for identification with: (1)
Product Identification Number ("PID"); (2) CLEI; (3) Continuing Property
Record (CPR) Numbers; (4) Buyer's Order Number; (5) Product Description;
(6) Order Item Number, if applicable; and (7) Bar-coding in accordance
with the TCIF standards. Bar-coding will include the equipment Category
Item (ECI) number.
c) All packing slips shall identify the PID number, Product Description,
Order Number, Order quantity. Seller agrees to add any other
identification requested by Buyer at charges to be agreed upon by Buyer
and Seller. Seller shall mark all hazardous Material as such in a
permanent and visible manner by stating "HAZARDOUS MATERIAL CONTAINED
WITHIN" and identifying the specific hazardous material.
d) For central office plug-ins, hardwired equipment, tools and test sets,
obtain at Seller's expense applicable ECI, CPR, CLEI
information/requirements from Telcordia in accordance with GR-209; GR-383,
GR-485; and GR-2977 and provide such information and or requirements to
Buyer on the Order Acknowledgment and or as stipulated in the GR
documents. Any revisions, amendments, or successors to the GR documents
listed above will become effective and thereafter applicable under this
Contract thirty (30) days after such revision is released by the Buyer to
Seller. Buyer and Seller will attempt to negotiate a resolution to any
objections of said revisions by Seller.
e) For Network Channel Terminating Equipment (NCTE) obtain at Seller's
expense applicable ECI, CPR, CLEI information/ requirements from Telcordia
in accordance with GR-209; GR-383, GR-485; and GR-2977 and provide such
information and or requirements to Buyer on the Order Acknowledgment and
or as stipulated in the GR-documents listed above. Any revisions,
amendments, or successors to the GR documents listed above will become
effective and thereafter applicable under this Contract thirty (30) days
after such revision is released by the Buyer to Seller. In addition,
Seller shall place on the container as well as on the plug-in unit a
permanent and visible "NCTE" label identifying the unit as such.
MONTHLY ORDER AND SHIPMENT REPORTS-PLUG-INS
During the term hereof, Seller agrees to render monthly Order and shipment
reports. The report shall be in a form that indicates the total dollars paid to
Seller by Buyer for the applicable month, listed by seven-(7) digit CLEI, sorted
by purchases and repairs. In addition. Seller shall prepare a separate report
listing the "No Trouble Found" (NTF) data sorted by seven (7) digit CLEI. And,
any additional information so required by Buyer. These reports shall be provided
on or before the fifteenth (15th) working day of the succeeding month, and shall
be mailed to Buyer at the address specified in the clause entitled "Notices" in
our General Agreement #98005906.
4
<PAGE> 6
NOTICES
Except as otherwise provided in this Agreement, or applicable Order, all notices
or other communications hereunder shall be deemed to have been duly given when
made in writing and either 1) delivered in person, 2) delivered to an agent,
such as an overnight or similar delivery service, or 3) deposited in the United
States Mail, postage prepaid, or 4) facsimile transmission, and addressed as
follows:
To: (World Wide Technology, Inc.)
(127 Weldon Parkway)
(St. Louis, Missouri 63043-3101)
(Attn.: Mark Catalano
To: (SBC Operations, Inc.)
(530 McCulllough rm. 2-M-02)
(San Antonio, Texas 78215)
(Attn.: Contract Manager-Plug-ins
To: (AFFILIATE NAME)
(AFFILIATE STREET ADDRESS)
(AFFILIATE CITY, STATE, ZIP)
ATTN.: ______________
The address to which notices or communications may be given by either party may
be changed by written notice given by such party to the other pursuant to this
paragraph entitled "Notices".
OPTION TO EXTEND
Buyer will have the right to extend the period specified in the clause herein
entitled "Terms of Agreement" for two (2) years by giving Seller at least thirty
(30) days' prior written notice. Within ten (10) days of the date of Buyer's
notice to extend the period, Seller will notify Buyer in writing whether Seller
proposes to revise its prices under this Agreement. If it does and the parties
fail to agree on the revised prices within twenty (20) days after the date of
Seller's notice to Buyer, then Buyer's notice to extend will be considered
withdrawn and prices for outstanding Orders will not be revised.
*Confidential treatment will be requested
REPAIRS NOT COVERED UNDER WARRANTY
[*Confidential treatment will be requested] Seller shall make available to Buyer
a repair and return option and an exchange option which shall apply to any
Material with respect to which the applicable warranty period has expired. The
availability of the options described in this section shall not be construed as
altering or affecting responsibility for risk of loss of or damage to the
Material, as provided elsewhere in this Contract.
5
<PAGE> 7
a. Under these options, if Buyer elects to have any Material repaired or
exchanged, Buyer may return such Material to Seller at a location
designated by Seller. If Buyer elects the repair and return option,
Seller shall repair such Material and place it in good operating
condition for Seller's then current price for such repair service plus
freight charges and any applicable taxes. If Buyer elects the exchange
option, Seller shall promptly replace such Material with a comparable,
factory-tested, refurbished Material, if available, which shall meet
current Material Specifications. Such replacement shall be at Seller's
standard charges for the replacement Material, plus freight charges
and any applicable taxes.
b. If any Material returned to Seller for repair and return as provided
in this paragraph a. is determined to be beyond repair, or if repair
costs are expected to exceed the cost of replacement, Seller shall so
notify Buyer. If requested by Buyer, Seller shall replace said
Material pursuant to the exchange option and, if so requested by
Buyer, shall return such unit to Buyer and designate as "beyond
economic repair". All plug-in equipment repaired, modified, and or
exchanged by Seller will meet or exceed mutually agreed upon
non-billable PCN's, Customer Change Notices (CCN's), and General
Engineering Complaints (GEC's) and any other mutually agreed upon
technical standards applicable to repaired, exchanged, or modified
plug-in equipment. Any reportable changes to hardware, software, and
or firmware in accordance with GR-209-CORE will require Seller to
obtain new CLEI codes from Telcordia and the ordering of the function
code chaining in TIRKS through Telcordia as stipulated in
GR-2977-CORE, prior to requesting Buyer's authorization for the
shipment of any changed, modified, and or potential plug-in
substitutions.
2. Repair and Refurbished Material
a. Repair of Material hereunder shall include, but shall not be limited
to, remedial maintenance necessary to return defective Material to an
operational condition that is suitable for reuse by Buyer and is in
accordance with the Specifications for such Material. In addition,
repair may include retrofitting and engineering changes and updates,
provided such changes and/or updates have been approved by Buyer.
b. Refurbished Material hereunder shall include, but shall not be limited
to, used Material that is in "like-new" operational and appearance
condition so that it is suitable for reuse by Buyer.
3. Performance of Work
a. Except as otherwise provided in this Contract, the schedule for
performance of services, applicable to each Order under this section
shall be agreed upon by Seller and Buyer and shall be set forth in
each such Order; however, in no event shall the Service interval
exceed seven (7) days after such receipt.
1) In the event that Seller exceeds the maximum repair interval,
Buyer shall have the right, without liability, to (i) cancel such
Order or (ii) extend such scheduled service date specified in the
Order, subject, however, to the right to cancel if Service is not
made or performance is not completed by such extended date.
2) If an Order is canceled pursuant to the preceding sentence,
Seller shall return the Material(s) received from Buyer under
such Order. Seller shall reimburse Buyer the costs of shipping
the Material(s) to Seller and the amounts, if any, previously
paid by Buyer for Service not received or performed.
b. Seller shall furnish all labor, services, tools, Material, parts,
accessories, instruments and equipment required to perform services
under this section.
c. Seller shall provide a written notice to Buyer with the name(s) and
telephone number(s) of the individual(s) to be contacted concerning
any questions that may arise regarding services under this section. If
required, Seller shall specify any special packing of Material which
might be necessary to provide adequate in-transit protection from
transportation damage.
d. Material repaired by Seller shall have the service completion date
stenciled or otherwise identified in a permanent manner at a readily
visible location on the Material.
1) In addition, Seller agrees to add any other identification which
might be requested by Buyer. Charges, if any, for such additional
identification marking shall be agreed upon by Seller and Buyer.
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<PAGE> 8
e. Unless otherwise provided in this Contract, there shall be no
additional charge for replacement parts. Only new standard parts or
parts of quality equal to the original parts shall be used in
refurbished Material or in effecting repairs. Parts, which have been
replaced, shall become Seller's property. If a part has been replaced,
by definition it has been removed; provided, however, that replaced
parts shall, upon request by Buyer be available for inspection by
Buyer. Parts, which are installed in Material as a part of the repair
process, shall become the property of Buyer.
f. If a Material returned to Seller for repair is determined to be beyond
repair, Seller shall return such material to Buyer and designate as
"beyond economic repair".
4. Risk of Loss
Except as otherwise provided in this Contract, after receipt of Material from
Buyer, Seller shall assume the risk of loss of or damage to such Material until
the Material is returned to and accepted by Buyer. Buyer shall notify Seller
promptly of any claim and shall cooperate with Seller in every reasonable way to
facilitate the settlement of any such claim.
*Confidential treatment will be requested
SCOPE OF AGREEMENT-PLUG-INS
Subject to the terms and condition of this Contract, Seller shall provide to
Buyer such Material and Services [*Confidential treatment will be requested] as
ordered by Buyer, and such other Material and Services as the parties may agree
to include hereunder, during the term of this Contract.
Seller agrees that Buyer or Buyer's Independent Contractor, may place orders for
Material and or Services directly with Seller and Seller agrees to extend
Buyer's pricing and warranties to Buyer's Independent Contractor with respect to
Services or Material provided on behalf of or for Buyer. Seller further agrees
that in no event will Buyer be responsible or liable for any promise, act, or
omission of Buyer's Independent Contractor.
SHIPPING AND PACKING PLUG-INS
1. Seller shall ship Material Free on Board (F.O.B.) origin; freight prepaid
and added as a separate item on the invoice.
(a) Unless otherwise instructed by Buyer, Seller shall ship Material to
Buyer based on the lowest published price by reliable common carrier
(rail, truck or freight forwarder), in order to meet Buyer's specified
delivery date. Buyer has the right to designate in the Order the
common carrier Seller shall use. If more cost effective transportation
can be arranged, Seller shall notify Buyer and, if Buyer agrees,
Seller shall ship at the agreed upon price by that agreed upon
carrier. If that carrier's price exceeds the agreed upon price, or if
Seller chooses not to use Buyer's designated common carrier, Buyer
shall have the right to: (1) Deduct from Seller's invoice, or (2)
Invoice Seller for freight charges, if any, in excess of those which
would have been charged by the common carrier specified by Buyer.
Further, Buyer has the right to designate routing, whether or not
Buyer designates a common carrier. (3) Seller will incur a ten (10)%
penalty for late deliveries exceeding twenty (20) business days of the
promise date but less than forty (40) days; and a twenty (20)% penalty
for late deliveries exceeding forty (40) business days.
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<PAGE> 9
2. Seller's bill of lading shall include Buyer's Purchase Order Number and
Buyer's billing address designated for use by the common carrier; and
Seller shall require the common carrier to include Buyer's Purchase Order
number and Buyer's designated billing address on the common carrier's
freight bill.
3. Seller shall coordinate pick up and or deliveries to Buyer's locations as
follows:
Hayward, CA 7:30 a.m. to 3:00 p.m. (weekdays only) Lancaster, TX 8:00 a.m.
to 12:30 p.m. (weekdays only) Other locations...as mutually agreed between
Buyer or Buyer's Independent Contractor at such locations and Seller.
4. Seller shall ship and package all purchased, repaired, exchanged, or
modified plug-ins in accordance with GR-1421 incorporated herein by this
reference. Seller shall wrap or bag individual plug-ins in anti-static
material, place in "ship ready" electro static discharge (ESD) container
that meet or exceed Telcordia's requirements outlined in the GR document
listed herein. Any revisions, amendments, or successors to GR-1421 will
become effective and thereafter applicable under this Contract, thirty (30)
days after such revision is released by the Buyer to Seller. Buyer and
Seller will attempt to negotiate a resolution to any objections of said
revisions by Seller. For shipments to Buyer's MDC in Lancaster, Texas,
Seller agrees to ship Material on pallets 42" by 42". Seller further agrees
to stack Material on such pallets no higher than 48". Seller agrees to
secure Packing Slip on top of pallet (one per pallet); listing 7 (seven)
digit HECI, quantity ordered, quantity shipped, Purchase Order # and
bar-coded in accordance with GR-383 and GR-485. In addition, Seller agrees
to layer such pallets with "like HECI's" in an effort to minimize claims
and reduce receiving errors. Seller further agrees to limit containers to
"like HECI's" only.
TERMS OF AGREEMENT
This Contract is effective as of the signature date, and, unless terminated or
canceled as provided in our General Agreement #98005906, shall remain in effect
through March 31, 2001. Either Seller or Buyer may terminate this Contract upon
thirty (30) days prior written notice to the other setting forth the effective
date of such Termination. The Termination, Cancellation or expiration of this
Contract shall not affect the obligations of either party to the other party
pursuant to any Order previously executed hereunder, and the terms and
conditions of this Contract shall continue to apply to such Order as if this
Contract had not been terminated or canceled.
*Confidential treatment will be requested
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<PAGE> 10
IN WITNESS WHEREOF, Seller and Buyer have executed the Amendment in duplicate
counterparts, each of which will be deemed to be an original document as of the
signature dates below.
WORLD WIDE TECHNOLOGY, INC. SOUTHWESTERN BELL OPERATIONS INC.
(SELLER) (BUYER)
By: /s/ Mark Catalano By: /s/ Steve Welch
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Name: Mark J. Catalano Name: Steve Welch
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Title: Director Title: President
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Date: 9-9-1999 Date: 8/27/99
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*Confidential treatment will be requested.
Proprietary Information
As of 1/11/99
Please discard previous edition
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*Confidential treatment will be requested.
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*Confidential treatment will be requested
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Ex.10.14
Agreement No. 99006728
between
SBC Operations, Inc.
and
World Wide Technology, Inc.
for
EQUIPMENT, MINOR MATERIALS AND SERVICES
RELATED TO
THE INSTALLATION AND SALE OF
TELLABS TITAN PRODUCTS
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
1.0 PREAMBLE...............................................................................................1
2.0 DEFINITIONS............................................................................................1
3.0 GENERAL TERMS AND CONDITIONS...........................................................................4
3.1 Agreement..............................................................................................4
3.2 Term of Agreement......................................................................................4
3.3 Termination And Cancellation...........................................................................4
3.4 Choice of Law..........................................................................................5
3.5 Cumulative Remedies....................................................................................6
3.6 Dispute Resolution.....................................................................................6
[* Confidential treatment requested]
3.8 Liens Prohibited.......................................................................................7
3.9 Title and Risk Of Loss.................................................................................7
3.10 Order of Precedence...................................................................................7
4.0 COMPLIANCE.............................................................................................7
4.1 Changes Required to Meet Codes, Laws & Regulations.....................................................7
4.2 No Third Party Beneficiaries...........................................................................8
4.3 Recyclable Material....................................................................................8
4.4 Reliability............................................................................................8
5.0 LIABILITY..............................................................................................8
5.1 Guaranty...............................................................................................8
6.0 STANDARDS..............................................................................................8
6.1 Product Change Notices.................................................................................8
6.12 Use of Published Specifications.......................................................................9
6.3 Buyer's Technical Information..........................................................................9
6.4 Marking...............................................................................................10
7.0 ORDERING..............................................................................................10
7.1 Order Procedure.......................................................................................10
7.2 Order Acknowledgment..................................................................................11
[*Confidential treatment requested]
[*Confidential treatment requested]
8.2 Cables and Related Items..............................................................................12
8.3 Invoicing And Payment.................................................................................12
8.4 Changes and Suspensions...............................................................................13
9.0 DELIVERY..............................................................................................13
9.1 Delivery and Performance..............................................................................13
9.2 Shipping and Packing..................................................................................13
10.0 PERFORMANCE..........................................................................................14
10.1 Records And Audits...................................................................................14
10.2 Monthly Order And Shipment Reports...................................................................15
10.3 Action Register......................................................................................15
10.4 Work Hereunder.......................................................................................15
10.5 Work Stoppage........................................................................................16
10.6 Tools and Equipment..................................................................................16
</TABLE>
Proprietary Information
This information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates
and World Wide Technology, Inc. except under written agreement.
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Agreement No. 99006728
<TABLE>
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10.7 Use of Buyer's Systems...............................................................................16
10.8 Damages to Property and Live Equipment...............................................................17
10.9 Inspection...........................................................................................17
10.10 Installation Services...............................................................................17
10.11 Installation Performance............................................................................18
10.12 Installation/Cutover Assistance.....................................................................19
10.13 Acceptance..........................................................................................19
10.15 Relocation..........................................................................................20
11.0 REPAIR AND MAINTENANCE...............................................................................20
11.1 Notice of Delays & Liquidated Damages................................................................20
11.2 Limitation of Liability..............................................................................21
* Confidential treatment requested
13.0 OTHER................................................................................................22
13.1 Patents..............................................................................................22
13.2 Copyrights...........................................................................................22
13.3 Headings.............................................................................................22
</TABLE>
EXHIBITS
* Confidential treatment requested
Exhibit B: Action Register
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Agreement No. 99006728
1.0 PREAMBLE
This Agreement No. 99006728 ("Agreement") is between World Wide
Technology, Inc., a Missouri corporation ("Seller") and SBC Operations
Inc., a Delaware corporation ("Buyer"). This Agreement incorporates all
the terms and conditions from General Agreement No. 98005906, dated
March 15 1999, between the Seller and Buyer unless specifically
provided otherwise herein. To the extent that the terms and conditions
of the General Agreement differ from the Agreement, the Agreement shall
prevail.
All orders placed relating specifically to the purchase of Tellabs
Titan equipment and services ordered through World Wide Technology,
Inc. shall be governed by this Agreement. To the extent that the terms
and conditions of the Agreement differ from that of the Master
Agreement No.T0005476, dated July 17, 1997, between Pacific Telesis
Group and Tellabs Operations, Inc., the Master Agreement No. T0005476
shall prevail.
Buyer and Seller agree that the term Buyer includes any of Buyer's
Affiliates and the term Seller shall mean either World Wide Technology,
Inc. or its Original Equipment Manufacturer (OEM) supplier, as
applicable.
The parties, intending to be legally bound, agree as follows:
2.0 DEFINITIONS
For the purposes of this Agreement, all terms defined herein will have
the meanings so defined, unless the context clearly indicates
otherwise. A term defined in the singular will include the plural and
vice versa when the context so indicates.
"ACCEPTANCE DATE" - means the date on which a Product successfully
completes the Acceptance Tests (or the end of the Acceptance Period, if
the Product has not been rejected as of that date), and for Services
means the later of (i) the date in which Buyer inspects and accepts
Seller's Services or (ii) thirty days after Seller provides an invoice
for such Services if Buyer has not rejected or accepted such Services
prior thereto.
"ACCEPTANCE PERIOD" means a period of thirty (30) consecutive calendar
days (or the period specified in the Order) during which the Acceptance
Test(s) for a Product is/are performed.
"ACCEPTANCE TEST" means the performance and reliability demonstrations
and tests that must be successfully completed by a Product during the
Acceptance Period which may include but not be limited to: (1) Buyer's
routine business transactions, (2) tests, demonstrations or
transactions performed during any Seller benchmarking, and (3) any
other tests, demonstrations or transactions included or referenced in
the applicable Order or which are appropriate to determine whether the
Product conforms to the requirements of the Order.
"APPROVAL FOR USE" means that a given Seller technology (i.e.,
Product), which is being deployed in Buyer's network, has successfully
completed all Technology Tests by Buyer, is fully approved for
deployment in Buyer's network and that Buyer has approved the price for
such Product, which are fundamental conditions precedent for a Product
to achieve Approval For Use status.
"CANCELLATION" means the occurrence by which either party puts an end
to this Agreement or Orders placed under this Agreement for breach by
the other and its effect is the same as that of "Termination" and,
except as otherwise provided for herein, the canceling party also
retains any remedy for breach of the whole Agreement or any unperformed
balance.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
"CENTRALLY DEVELOPED SYSTEM" means a computer-based information system
whose development project was managed and/or is being supported by
Buyer.
"DELIVERY DATE" means the date by which all items and parts of the
Product as ordered are delivered to the destination specified in the
applicable Order.
"DOCUMENTATION" means including, but not be limited to, user and system
manuals, and training materials in machine readable or printed form.
"DOWNTIME" means that period of time during which a Product is not
operating in accordance with the requirements of an Order through no
fault or negligence of Buyer. Downtime for each malfunction will start
one (1) hour after Buyer attempts to contact Seller's designated
representative at a prearranged contact point and will end when the
Product is operating in accordance with the requirements of the Order.
"EQUIPMENT" means a unit of hardware, including spare parts, acquired
or maintained hereunder, and includes any third party provided
Equipment.
"EXTENDED MAINTENANCE PERIOD" means any period of maintenance Service
outside of the Principal Period of Maintenance which may be selected by
Buyer.
"FIELD ENGINEER" means a person in Seller's employ qualified to repair
Products in a timely and professional manner.
"INFORMATION" means all ideas, discoveries, concepts, know-how, trade
secrets, techniques, designs, specifications, drawings, sketches,
models, manuals, samples, tools, computer programs, technical
information, and other confidential business, customer or personnel
information or data, whether written, oral or otherwise.
"INSIGNIA" means Buyer's trademarks, trade names, symbols, decorative
designs of evidence of Buyer's inspection.
"INSTALLATION" - means equipment mounting, placing, modification,
assembly, cabling, wiring, and testing to be performed by Seller in
accordance with the Specifications and/or instructions issued by, and
reasonably acceptable to, Buyer.
"INSTALLATION DATE" means the date by which all components of a Product
or System are installed and prepared for Acceptance Tests at the
location specified in the applicable Order. The Installation Date for
Software and Equipment includes delivery of Program Material, manuals
and supporting Documentation.
"INSTALLATION SITE" means the location, established by Buyer, at which
the Product will reside.
"LICENSED SOFTWARE" means software licensed to Buyer. Licensed Software
also includes all associated Program Material and Documentation.
"ORDERS" means such purchase orders, forms, memoranda or other written
communications as may be delivered to Seller for the purpose of
ordering Products and Services hereunder.
"PREVENTIVE MAINTENANCE" means maintenance performed or required to be
performed by Seller on a scheduled basis to keep a Product in good
operating condition in accordance with the requirements of the
applicable Order. Preventive Maintenance will include (1) calibration,
testing, adjustments, cleaning, lubrication, replacement of worn,
defective or questionable parts, and minor circuit updating and
modifications; (2) maintenance and engineering services necessary to
retrofit or otherwise install engineering changes, modifications and
improvements (including the latest engineering revision and all
reliability improvements) made to any Product by Seller at any time
during the maintenance term for that Product; and (3) automatic update
services for all manuals and Documentation furnished with any Product.
"Principal Period of Maintenance" means a consecutive ten (10) hour
period daily, Monday through Friday, excluding New Year's Day,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Unless otherwise specified in the
Order, such ten (10) hour period will be from 7:00 a.m. to 5:00 p.m.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
"PRODUCTS" means a unit of equipment, apparatus, components, tools,
supplies, material, Software, or firmware thereto purchased or licensed
hereunder by Buyer from Seller and includes third party Products
provided or furnished by Seller. Products shall be deemed to include
any replacement parts or products.
"PROGRAM MATERIAL" means all material associated with Software provided
by Seller to Buyer hereunder including, but not limited to, test data,
flow charts, Documentation, source code, source code listings, data
file listings, input and output formats and use instructions.
"REMEDIAL MAINTENANCE" maintenance performed by Seller which is
necessary to return an inoperative or malfunctioning Product to good
operating condition.
"SERVICE(S)" - means any and all labor, support, facilities, material,
Equipment, tools, accessories, instruments and supplies necessary to
perform any and all services described in the applicable Order and
provided by Seller hereunder, including but not limited to,
consultation, engineering, Installation, removal, maintenance,
training, self-maintenance support, repair, general services, remote
computer services, unloading, programming, Software maintenance,
technical consultation, Documentation preparation, or any other
services specified in this Agreement or in an Order.
"SOFTWARE" means all programs in machine-readable (object code) form
and feature descriptions which are ordered by Buyer pursuant hereto.
Software includes Custom Software and Licensed Software, including any
associated program, programming aid, routine, subroutine translation,
compiler, diagnostic routine, control software and firmware and third
party Software included in or finished by Seller.
"SPECIFICATIONS" means (1) Seller's proposals, (2) Seller's published
literature, descriptions, drawings and other specifications, including
physical, operating, timing and maintenance characteristics, site,
space, power and memory requirements, run times, compatibility, and
modularity, (3) the Product manufacturer's or developer's
specifications (if Seller is not the Product manufacturer or developer)
and (4) any other specifications or Technical Requirements for the
Products or Services which are attached to or referenced in and made a
part of the applicable Order.
"SYSTEM" means the collection or aggregation of Products designed to
function or operate, or represented by Seller as being capable of
functioning, as an entity. A System may be offered by Seller or any
other source and may include products offered by other vendors.
"SYSTEM CHANGE REQUEST" means a Buyer document requesting modifications
to Software licensed hereunder.
"TECHNICAL REQUIREMENTS" means those feature, function, operational,
administrative, maintenance and support requirements as defined herein
for a given technology which are provided by Buyer to Seller in
accordance with this Agreement.
"TECHNOLOGY TEST" means hands-on, laboratory oriented technical review
and analysis by Buyer (usually performed prior to first application in
Buyer's network) of Seller's Product based on specific performance,
operational, protocol, and environmental criteria for potential
certification as an Approved for Use technology for deployment into
Buyer's network. Such Technology Test is a major component of Buyer's
Approval for Use process as defined above.
"TELCORDIA TECHNOLOGIES (TELCORDIA)" - In 1999 Bellcore renamed the
organization, Telcordia Technologies (Telcordia). For the purposes of
this Agreement all currently called Bellcore terms will be referenced
by the new name "Telcordia".
"TERMINATION" means the occurrence by which either party, pursuant to
the provisions or powers of this Agreement or laws and regulations,
puts an end to this Agreement and/or Orders placed under this Agreement
other than for breach. On "Termination" all obligations which are still
executory on both sides are discharged but any right based on prior
breach of performance survives except as otherwise provided herein.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
"WARRANTY PERIOD" means the period during which a product or Service is
covered by Seller's/OEM's warranties [*Confidential treatment will be
requested].
3.0 GENERAL TERMS AND CONDITIONS
3.1 Agreement
This Agreement sets forth the terms and conditions under which Seller's
Products and Services will be purchased by Buyer. This Agreement shall
govern all Orders, acknowledgments, invoices and other information
electronically and non-electronically transmitted during the term of
this Agreement. In the event of any conflict between the Provisions of
this Agreement and any Orders, the provisions of this Agreement shall
prevail. The parties may modify this Agreement when an authorized
representative of each party signs such modifications. Exhibits
[*Confidential treatment will be requested] B, which are attached
hereby, are incorporated by this reference.
3.2 Term of Agreement
This Agreement shall become retroactively effective. The effective date
is May 1, 1999 until December 31, 2001, unless sooner Terminated or
Canceled as provided herein. Thereafter, the Agreement will be
automatically renewed for successive one (1) year terms, unless either
party has provided the other party with notice of termination, in
accordance with Section 3.3(a). The amendment, expiration, Termination
or Cancellation of this Agreement shall not affect the obligations of
the parties under any Order previously issued under this Agreement, and
the terms and conditions of this Agreement shall continue to apply to
such Order as if this Agreement had not been amended, expired,
Terminated or Canceled.
3.3 Termination And Cancellation
A. Termination and Cancellation of Agreement
Buyer may Terminate this Agreement in whole or in part at any
time by giving Seller at least thirty (30) days' prior written
notice. Upon Termination, Buyer agrees to pay Seller all
amounts due for Products or Services provided by Seller under
this Agreement up to and including the effective date of
Termination, which payment will constitute a full and complete
discharge of Buyer's obligations to Seller hereunder.
In accordance with applicable laws and regulations, Buyer may
Cancel this Agreement by notice, in writing, in the event that
Seller (i) admits insolvency, (ii) makes an assignment for the
benefit of creditors, (iii) is unable to pay debts as they
mature, or (iv) has a trustee or receiver appointed over all
or any substantial part of its assets. Seller shall provide
Buyer with status reports on the financial viability of
Seller. Providing a copy of an Annual Income Statement and
Balance Sheet shall suffice to fulfill this requirement.
B. Cancellation and Termination of Orders
1. Cancellation
If Buyer cancels any Orders or rejects any Products
pursuant to any provision of this Agreement or
applicable Laws and Regulations, Seller shall, at
Buyer's request, but at Seller's expense, promptly
remove the affected Products from Buyer's site,
restore Buyer's site to its original condition,
refund to Buyer any amounts previously paid by Buyer
for such Products and reimburse Buyer for any costs
Buyer occurred to remove and return such Products.
Upon reimbursement and refund, title to any such
Products which had previously passed to Buyer shall
revert to Seller.
2. Termination
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Agreement No. 99006728
Products/Services: Buyer may at any time Terminate
any Order in whole or in part upon written notice to
Seller. In such event, Seller shall be entitled to
reasonable Termination charges consisting of its
actual and direct costs incurred to provide the
Products and Services ordered by Buyer but no more
than a percentage of the work performed or Products
delivered prior to Termination, minus salvage or
resale value of the Terminated Order. If requested,
Seller agrees to substantiate such costs with proof
satisfactory to Buyer. In no event shall the
Termination charges on any Order hereunder exceed the
Order price.
No Termination charges shall apply to Products not
specially manufactured for Buyer pursuant to any
Order which is Terminated at least thirty (30) days
prior to the required delivery date. Buyer shall not
be responsible for any work performed nor for any
costs incurred by Seller, Seller's sellers, or
Seller's subcontractors after Buyer has provided
notice of Termination. After the receipt of Buyer's
payment for such Terminated Services, Seller shall
deliver the physical embodiments, if any, of the
items charged to and paid by Buyer. The foregoing
Termination charges state the entire liability of
Buyer for Termination for convenience by Buyer of any
Order hereunder.
C. Partial Cancellation and Termination
Where a provision of this Agreement or applicable Laws and
Regulations permits Buyer to Terminate or Cancel an Order,
such Termination or Cancellation may, at Buyer's option, be
either complete or partial. In the case of a partial
Termination or Cancellation Buyer may, at its option, accept a
portion of the Products or Services covered by an Order and
pay Seller for such Products or Services at the unit prices
set forth in such Order. The right to Cancel an Order shall
also include the right to Cancel any other related Order.
D. Cancellation for Default
If Seller is in material default of any of its obligations
under this Agreement or applicable Orders and such default
continues for ten (10) days after written notice thereof is
given by Buyer, then in addition to all other rights and
remedies, at law or in equity, Buyer may Cancel this Agreement
and/or any Order which may be affected by such default without
any obligation or liability on the part of Buyer whatsoever.
Notwithstanding this paragraph D, additional provisions for
Cancellation of Orders hereunder are set forth in this
Agreement.
Buyer shall have the right to retain or return any Product
already received and accepted; provided, however, if Buyer
elects to return any Product, Seller shall reimburse Buyer the
cost of shipping any returned Product and amounts, if any,
previously paid by Buyer for such Product. Seller shall bear
all expenses for removal and return of such Product.
3.4 Choice of Law
The following supersedes the General Agreement No. 98005906, section
entitled "Governing Law", page 7:
With respect to PACIFIC, this Agreement and performance hereunder shall
be governed by the laws of the state of California. With respect to
SWBT, this Agreement and performance hereunder shall be governed by the
laws of the state of Missouri. With respect to an Affiliate, other than
PACIFIC or SWBT, this Agreement and performance hereunder shall be
governed by the laws of the state in which such affiliate has its
principal place of business.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
This Agreement shall be considered completed, entered into, and
executed in California on behalf of PACIFIC, in Missouri on behalf of
SWBT, and with respect to an Affiliate other than PACIFIC or SWBT, in
the state in which the Affiliate has its principal place of business."
3.5 Cumulative Remedies
Any rights of cancellation, termination, liquidated damages or other
remedies prescribed in this Agreement are cumulative and are not
exclusive of any other remedies to which the injured party may be
entitled, including but not limited to, the remedies of specific
performance and cover; however, neither party shall retain the benefit
of inconsistent remedies.
3.6 Dispute Resolution
Resolution of all disputes arising out of or in connection with this
Agreement shall be in accordance with the following:
A. The parties will attempt in good faith to promptly resolve any
controversy or claim arising out of or relating to this
Agreement through negotiations between executives of the
parties, before resorting to other remedies available to them.
B. If a controversy to claim should arise, the first level of
escalation shall be Seller's designated Account Manager and
Buyer's Contract Manager with escalation to intermediate and
executive level management as appropriate and mutually agreed.
Either Seller or Buyer may request the other to meet within
fourteen (14) days at Buyer's location.
C. If the matter has not been resolved within twenty-one (21)
days of their first meeting, the designated representatives
shall refer the matter to senior executives, who shall have
full authority to settle the dispute. Thereupon, the
representatives shall promptly prepare and exchange memoranda
stating the issues in dispute and their positions, summarizing
the negotiations which have taken place, and attaching
relevant Documents. The senior executives will meet for
negotiations within fourteen (14) days of the end of the
twenty-one (21) day period referred to above, at a mutually
agreed time.
D. The first meeting shall be held at the offices of the party
receiving the request to meet. If more than one meeting is
held, the meetings shall be held in rotation at the offices of
Seller and Buyer. All meetings will be held at a location
mutually agreed upon by the parties.
E. If the matter has not been resolved pursuant to the aforesaid
procedures within sixty (60) days of the commencement of such
procedure (which period may be extended by mutual Agreement),
the controversy shall be submitted to and settled by
arbitration with a panel of three (3) arbitrators, of whom
each party shall appoint one (1) with the third arbitrator
selected by the two (2) so chosen. The controversy shall be
settled in accordance with the rules and regulations of the
Center of Public Resources Guide For Resolving Disputes. Both
parties agree that the arbitration award may be enforced by a
court of competent jurisdiction and that the costs of such
arbitration shall be divided equally. The arbitration shall be
held in San Francisco, California (or as mutually agreed) and
shall be conducted on a confidential basis. The arbitrator's
award shall be supported by law and substantial evidence.
*Confidential treatment requested
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
3.8 Liens Prohibited
All Services furnished to Buyer by Seller hereunder shall be free from
any claims, third party liens or encumbrances. Should Seller as a
general contractor of Services subcontract such Service delivery to
subcontractors that have mechanics lien rights under applicable law,
Buyer may require satisfactory proof that all parties furnishing labor
and/or materials for the Services have been paid before making payment
to Seller.
3.9 Title and Risk Of Loss
The following supersedes the General Agreement No. 98005906, section
entitled "Title and Risk of Loss", page 19.
A. TITLE
Title to Equipment purchased hereunder will vest in Buyer when
the Equipment has been delivered and accepted at the
destination specified in the applicable Order. If this
Agreement calls for additional Services such as unloading,
installation or the like to be performed after delivery,
Seller will retain risk of loss to the Equipment until the
additional Services have been performed to Buyer's
satisfaction. Title to Software will remain in Seller. Buyer
will have the right to make a reasonable number of copies of
the Software for use as authorized by OEM.
B. RISK OF LOSS
Seller shall bear the risk of loss of or damages to any
Product until delivery of the Product at the destination
specified in the applicable Order and acceptance by Buyer. In
the event that additional Services such as installation,
unloading or the like, are to be performed by Seller, the risk
of loss shall pass to Buyer after such additional Services
have been performed and the Product has been accepted by
Buyer. With respect to any loss or damage which occurs while
Seller has the risk of loss, Buyer shall notify Seller
promptly of any claim and shall cooperate with Seller to
facilitate making and settling any such claim.
After such delivery and acceptance, Buyer shall bear the risk
of loss of or damage to such Product, except to the extent
that any loss or damage arises out of or results from the
negligence or willful misconduct of Seller or its agents or
contractors.
3.10 Order of Precedence
In the event of any conflict or inconsistency between any provisions of
this Agreement and the provisions of any Order, the provisions of such
Order will control but only for the purpose of such Order, and, except
for such Order, the terms and conditions of this Agreement will not be
deemed to be waived, amended or modified.
4.0 COMPLIANCE
4.1 Changes Required to Meet Codes, Laws & Regulations
Seller shall, at no additional charge, make any changes to the
Products, which are necessary to meet codes, laws or regulations which
are in effect on the date of acceptance of such Products. If such
changes are proposed on such date and subsequently become effective,
Seller shall make such changes at a charge not to exceed the cost of
labor and materials. Seller's obligations under this clause shall
expire ten (10) years after acceptance of the Products in question.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
4.2 No Third Party Beneficiaries
Except as otherwise provided in this Agreement, this Agreement is for
the benefit of Buyer and Seller and not for any other person or entity.
4.3 Recyclable Material
If requested by Buyer, Seller will identify recyclable Products by
labeling or watermarking such Products in a mutually agreed upon
manner.
4.4 Reliability
Seller hereby agrees that OEM's Products furnished hereunder by Seller
will, at the time of shipment:
a. Have sufficient burn-in operating time at the component,
circuit pack and/or system level to assure an Infant Mortality
Factor ("IMF") of not more than 2.5. The IMF is the ratio of
the failures experienced in the first year of operation (8760
hours) to the failures experienced in a year of operation at
Steady State Reliability ("SSR") assuming a Weibull Infant
Mortality Model with a slope of 0.75 and 10,000 hours to reach
SSR.
b. Meet the Quality and Reliability requirements specified in
Quality Program Specification (QPS) 82.040 Issue 4 and 92.031
Issue 2.
Seller further agrees that it will, at no charge, provide Buyer or its
representative ("Buyer's Agent"), the accessibility and assistance
necessary for Buyer or Buyer's Agent to verify that Product purchased
hereunder satisfies the requirements specified in the clause entitled
"QUALITY ASSURANCE."
Nothing contained herein will affect Buyer's rights hereunder, under
any warranty, or under any other provisions of this Agreement.
5.0 LIABILITY
5.1 Guaranty
Seller shall use commercially reasonable efforts to ensure to Buyer (1)
the full and faithful performance by each subcontractor of each and
every covenant, duty and obligation assumed by the subcontractor with
respect to the Services and (2) the payment of each and every sum due
or to become due to the subcontractor in connection with the Services.
The above guaranty is applicable to all changes, modifications and
extensions respecting this Agreement as the parties may agree.
6.0 STANDARDS
6.1 Product Change Notices
Seller agrees to notify Buyer, in advance, of any known change(s) to be
made in the OEM's Products furnished in accordance with the
Specifications, Software Related Documentation and/or Documentation
that would impact upon either reliability, safety, or the form, fit or
function of the Product.
It will be OEM's responsibility to furnish Product Change Notices
("PCN") for all Products provided hereunder in accordance with TP
76305, January 1, 1997, SWB Requirements for Product Change Notices for
SWBT or GR-209-CORE, Issue 1, August 1994, "Product Change Notices" for
PACIFIC, as may be amended at any time, and any successor document.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
In order for Buyer to review Product changes, a minimum of thirty (30)
days advance notice will be required except for those cases where an
extremely unsatisfactory condition requires immediate action. The final
classification of any Product change proposed by the OEM will be by
mutual agreement between OEM and Buyer.
For changes classified as "A" or "AC", Seller and OEM agree to promptly
modify or replace, at no charge, all affected Products provided
hereunder and the Documentation relevant thereto. Buyer will have the
right to invoice Seller for any labor expenses incurred by Buyer
attributable to the replacement of such Products.
For changes classified as "B" or "D", Seller and OEM agree to notify
Buyer of the exact nature thereof and discuss with Buyer details
regarding the proposed implementation procedure for affected Products
which is being or will be manufactured. Buyer will determine, at its
option, if Products previously shipped will be modified or replaced.
Should such modification or replacement be deemed necessary, Seller and
OEM will arrange therefor at prices and schedules to be mutually agreed
upon with Buyer prior to implementation. Relevant Documentation for
such affected Products will also have provided by Seller and OEM at no
charge.
Any revisions to TP 76305, will become effective and thereafter
applicable under this Agreement thirty (30) days after such revision is
released by Buyer except for those particular revisions to which the
Seller and OEM specifically objects within twenty-one (21) days of
receipt, providing therewith an explanation for each such objection.
Upon each such objection, Buyer, Seller and OEM will attempt to
negotiate a resolution to any such objections. Notwithstanding the
foregoing, any revision made to address situations potentially harmful
to Buyer's network, the Premises, to address Premises security issues,
to comply with statutory and/or regulatory requirements, or to Buyer's
Emergency Operating Procedures will become effective and applicable
immediately notwithstanding any objection by the Seller and OEM.
In the event that Buyer, Seller and OEM fail to reach agreement on any
change in Products proposed by OEM, Buyer will have the right without
penalty to terminate this Agreement and any or all Orders for Products
affected by such change(s) that may have been issued by Buyer.
6.2 Use of Published Specifications
Seller shall, at no charge, provide Buyer with copies of Sellers/OEMs
published Specifications, user instructions, manuals and other training
materials pertaining to the Products. Buyer shall have the right to
reproduce any or all of such materials as necessary for Buyer's use of
such Products.
6.3 Buyer's Technical Information
Seller agrees to comply, where applicable with the following technical
requirements documents of Buyer:
o GR-137-CORE, Issue 1, June 1, 1994. "Generic Requirements for
Central Office Cable"
o GR-833 CORE, Issue 5, December 1992, Revision 1, April 1993,
Revision 2, June 1994. "Operations Application Messages -
Network Maintenance: Network Elements and Transport
Surveillance Messages".
o GR-1089-CORE, Issue 1, November 1994. "Electromagnetic
Compatibility and Electrical Safety - Generic Criteria for
Network Telecommunications Equipment"
o GR-1421-CORE, Issue 1, 7-1-94. "Generic Requirements for
ESD-Protective Circuit Pack Containers"
o GR-1502-CORE, Issue 1, June 1994. "Central Office Environment
Detail Engineering Generic Requirements"
o SR-3158 NEBS 2000 Physical Protection Guidelines for
Operations Systems Hardware
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
PB/SWBT Alarm Philosophy, Effective date 4-5-94
o PB/SWBT Alarm Policy Statement Effective Date June 15, 1994.
o PB/SWBT Practice 790-101-322SW, March 1, 1990. Detail
Engineering Guide Telephone Company Engineered (TCE) Orders
Preparation Instructions
o TP 76300, December 1, 1994. Installation Guidelines
o TP 76310, April 1, 1992. Earthquake Engineering Guidelines
o TR-EOP-000066, Issue 1, February 1987. "Space Planning
Documentation Requirements"
o TR-NWT-000063, Issue 5, September 1993. "Network Equipment
Building Systems General Equipment Requirements (NEBS)"
o TR-NWT-000078, Issue 3, December 1991. "Generic Physical
Design Requirements for Telecommunications Products and
Equipment"
o TR-NWT-000409, Issue 3, July 1993. "Generic Requirements for
Intrabuilding Optical Fiber Cable
o TR-NWT-000840, Issue 1, December 1991. "Supplier Support
Generic Requirements (SSGR)"
o TR-NWT-000513 Generic Requirements for Power Systems
o TR-NWT-000928 Generic Requirements for Fuse Panels used in
Central Offices
6.4 Marking
The following section supersedes the General Agreement No. 98005906,
section entitled "Bar-Coding", page 3:
Seller agrees to mark all Product furnished hereunder for
identification purposes with (I) Seller's or OEM's model/serial/issue
number, (ii) the month and year of manufacture, (iii) warranty
expiration date, and (iv) for plug-in equipment, also in accordance
with the current requirements outlined in Technical Publication
GR-185-CORE, Issue 1, Common Language (R) Equipment Coding Processes
and Guidelines, TR-795-25540-8402 (Pub. 5002), Issue 1, 1/1/74 Common
Language (R) Identification of Manufacturers of Telecommunications
Products, and TR-STS-000383, Issue 5, 1/1/91 Generic Requirements for
Common Language (R) Barcode Labels. Seller further agrees that it will:
(a) For central office plug-ins, hardwired equipment, tools and
test sets, obtain at Seller's expense applicable Equipment
Catalog Item ("ECI"), Continuing Property Record ("CPR") and
Common Language (R) Equipment Identifier ("CLEI") information
from Bell Communications Research, Inc. ("Telcordia") and
provide such information to Buyer on the Order Acknowledgment.
(b) Mark all hazardous Products as such in a permanent and
reasonably visible manner by stating, "HAZARDOUS MATERIAL
CONTAINED WITHIN," and identifying the specific hazardous
material.
(c) Add any other identification, which might be requested by
Buyer. Charges, if any, for such additional identification
marking will be as agreed upon by Seller and Buyer.
7.0 ORDERING
7.1 Order Procedure
The following section supersedes the General Agreement No. 98005906,
section entitled "Purchase Orders", page 15:
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The information contained herein is not for use of disclosure outside
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except under written agreement
Page 10
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Agreement No. 99006728
Orders submitted by Buyer against this Agreement will be placed on
Purchase Order Form SW-6531 for SWBT and Purchase Order Form P-2 for
PACIFIC. The typed or written provisions on Buyer's Orders will be
incorporated into this Agreement, but printed provisions on the reverse
side thereof will be deemed deleted.
Each Order shall be numbered, shall indicate the ordering party, and
may include at least the following items whenever such item is
applicable to the Products and Services covered by such Order:
(1) The date of the Order.
(2) The incorporation of this Contract and Agreement by reference
(3) A complete list of the Products and Services covered by the
Order, specifying, attaching or referencing the quantity,
model number, program name or product identification number,
description and Specifications for each.
(4) The price of each Product and Service, including discounts (if
any), and any additional charges.
(5) The address to which Seller's invoice shall be sent.
(6) Shipping instructions.
(7) The destination to which the Products will be delivered and
the date and time for scheduled delivery.
(8) Any special terms and conditions.
Order(s) placed hereunder shall be deemed accepted by Seller unless
written notice to the contrary is received by Buyer within ten (10)
days from Seller's receipt of such Order. Such notice will be given to
Buyer in care of the address indicated on the acknowledgment copy of
the Order. Any additional or different terms in any Seller quotation,
acknowledgment, invoice or other communication to Buyer, whether or not
such terms materially alter an Order, shall be deemed objected to by
Buyer without need of further notice of objection and shall be of no
effect and not in any circumstance binding upon Buyer unless expressly
accepted by Buyer in writing.
7.2 Order Acknowledgment
The following section is in addition to the General Agreement No.
98005906, section entitled "Order Acknowledgment", page 15.
Seller agrees to provide to Buyer an Order Acknowledgment ("OA") with
respect to each Order. In addition, Seller agrees to include Software
Right to Use Fees, if any, on the OA.
* Confidential treatment will be requested
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Agreement No. 99006728
[*Confidential treatment requested].
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8.4 Changes and Suspensions
Buyer may, by notice to Seller at any time before complete delivery
is made under any Order, make changes within the general scope of such
Order, including changes to quantities, drawings, designs or
specifications. In addition, Buyer may, by notice to Seller, suspend,
in whole or in part, the delivery of Products and the performance of
Services. If Buyer directs any such change or suspension, the parties
shall agree upon any necessary adjustments in prices or dates and Buyer
shall issue a revised Order reflecting such adjustments.
Seller may not, without Buyer's prior written consent, make any changes
whatsoever with respect to the Products or Services specified in any
Order.
9.0 DELIVERY
9.1 Delivery and Performance
All dates for delivery of Products and performance of Services are firm
and time is of the essence. Seller's delivery interval is two to seven
(2-7) weeks from receipt of Buyer's Order to Delivery Date. Upon
receipt of each Order, Seller shall deliver the Products to Buyer's
designated location and perform all of the Services on or before the
date(s) specified, failing which Buyer may, in addition to all other
remedies provided by law or equity or this Agreement (1) Cancel such
Order, or (2) extend such delivery date(s) to a later date(s), subject
however, to Cancellation if delivery is not made by such extended
date(s).
If an Order is Canceled pursuant to the paragraph above, Buyer shall
have the right to retain or return any or all Products received under
such Order. Seller shall reimburse Buyer the costs of shipping the
returned Products and amounts, if any, previously paid by Buyer. Buyer
shall pay for any Products retained at the prices set forth herein, and
quantity discounts, if any, shall be applied on the basis of the
quantity specified in the Order.
9.2 Shipping and Packing
Seller agrees to:
(a) Ship Orders complete unless instructed otherwise by Buyer.
(b) Ship to the destination designated in the applicable Order in
accordance with any specified routing instructions.
(c) Package, mark and label Products in accordance with Buyer's
Specification No. 76295. Adequate protective packaging will be
furnished by Seller at no additional charge.
(d) Enclose a packing slip with each shipment and, when more than
one (1) package is shipped, clearly identify the one
containing the packing slip.
(e) Mark Buyer's Order number, item sequence numbers, and item
identification numbers and descriptions on all packages,
subordinate documents and shipping papers.
(f) Render invoices in duplicate or as otherwise specified by the
applicable Order, showing Buyer's Order number, item sequence
numbers, item identification numbers and descriptions, through
routing and weight.
(g) Render separate invoices for each shipment or Order.
(h) Mail Bills of Lading, if applicable, shipping notices and
copies of transportation bills with Seller's invoices to
Buyer's address indicated on the applicable Order.
(i) List basic unit and part number or Common Language Equipment
Identifier ("CLEI") code numbers and Continuing Property
Record ("CPR") numbers for each central office product
included on an invoice.
(j) Limit billing on repair orders to one (1) invoice per repair
order.
(k) Identify software right-to-use fees on the invoice as either
"application" or "operational".
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
For shipments made to Seller's Material Distribution Center ("MDC") in
Lancaster, Texas, Seller further agrees to ship Products on pallets
with dimension of 42" by 42" and stack Equipment thereon no higher than
48".
Adequate protective packaging will be furnished by Seller at no
additional charge. If prepayment of transportation charges is
authorized, Seller will include the transportation charges for the
Products from the F.O.B. point to the designated destination as a
separate charge on Seller's invoice therefor.
Shipping and routing instructions may be altered by mutual agreement of
the parties without written notice. C.O.D. shipments will not be
accepted. Unless expressly stated to the contrary, Seller's charges for
transportation Services including, but not limited to, routing,
transporting, hauling, hoisting, storage and detention, are not
included in any prices furnished for Products. Seller's prices include
its standard packing for domestic shipments. All Products purchased,
repaired or replaced and/or disposed of hereunder shall be packed and
marked by Seller, at no additional charge to Buyer, to comply with or
exceed (1) the standards of the National Motor Freight Traffic
Associations Incorporated as published in the National Motor Freight
Classification #100 ("Standards"), as may subsequently be amended, or
(2) the Specifications set forth in the appendix, if any, entitled
"Packaging, Packing and Container Marking Requirements". If the
Products purchased, repaired, replaced, or disposed of consist of or
contain hazardous materials or hazardous wastes, Seller shall package,
label, mark, and transport same in accordance with applicable laws and
regulations in addition to the Standards. In the event of any conflict
or inconsistency between the Standards and such laws and regulations,
such laws and regulations shall prevail. If Buyer requests special
packaging charges, if any, shall be agreed upon by the parties.
10.0 PERFORMANCE
10.1 Records And Audits
This following section supersedes the General Agreement No. 98005906,
section entitled "Records and Audits", page 17:
In order to enable Buyer to comply with the requirements of Parts 32
and 64 of the Rules of the Federal Communications Commission pertaining
to Affiliate transactions and any similar state or federal
requirements, Seller agrees, to:
(a) Maintain and provide to Buyer upon request complete and accurate
records related to all amounts billable to and payments made by
Buyer hereunder in accordance with generally accepted accounting
principles.
(b) Notify Buyer prior to destroying or otherwise permanently
disposing of such records and, at Buyer's option, transfer such
records to Buyer.
(c) Provide reasonable supporting documentation to Buyer within
thirty (30) calendar days after receipt of written notification
from Buyer of a dispute as to the amount of any invoice.
Seller further agrees that Buyer will have the right through its
accredited representatives to inspect, copy, and audit, during normal
business hours, the charges invoiced to Buyer under this clause. Should
Buyer request an inspection or audit, Seller will make available the
pertinent records and files. This right to inspect, copy, and audit
will not be limited to validating the
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
accuracy of resources utilized by Seller and associated charges
invoiced to Buyer but includes, without limitation, the right to
inspect and audit:
(i) The method for determining cost data provided to Buyer.
(ii) Any cost or pricing data, records or other information
pertaining to similar sales to other, Non-Affiliated buyers.
(iii) Seller's accounting policies or practices.
Seller will include any of the aforementioned information on its
invoices and other billing documents as Buyer may reasonably require.
Unless otherwise provided in this Agreement, Seller shall retain such
records for a period of three (3) years from the date of final payment
under the Order to which such records relate. To the extent that such
records may be relevant in determining if Seller is complying with its
obligations under the applicable Order, Buyer and its authorized
representatives shall have access to such records for inspection,
copying, and audit during normal business hours.
10.2 Monthly Order And Shipment Reports
During the term hereof, Seller agrees to render monthly shipment
reports on or before the fifth (5) working day of the succeeding month.
The report shall in a form that indicates the total dollars paid to
Seller by Buyer for each applicable Product for each month and any
additional information required by Buyer. Completed forms will be sent
to Buyer's address as set forth in the clause herein entitled
"NOTICES."
In addition, Seller agrees to render quarterly sales reports on or
before the last working day of April, July, October and January. The
report shall indicate the total year to date sales orders, by quarters,
paid to Seller by Buyer. Specifics shall include Vendor Name(s),
Product Description(s), Vendor Part Number(s), Product Price,
Quantities, Purchasing Affiliate (PB, SWBT, SNET, etc.).
10.3 Action Register
Buyer and Seller acknowledge that the success of Buyer's development of
Seller's Products is contingent upon timely and successful resolution
of issues identified in the Action Registers. Buyer reserves the right
to assign items to Action Registers, which are living documents, with
the understanding that Action Registers contain issues pertaining to
conformance of Products with Seller's Specifications and Buyer's
requirements. Seller agrees to provide timely service and resolution,
including all necessary steps to address critical and high Action
Register Items, to Buyer on those items identified in the Action
Registers (or such successor entity or issues forum as may be
maintained by Buyer). Seller further agrees to take. In pursuing the
resolution of problems or issues identified in the Action Register, and
in the selling of any Products to Buyer, Seller agrees to perform
testing consistent with the conditions typically found in Buyer's
Production environment. The current version of the Action Register is
attached as Exhibit B.
10.4 Work Hereunder
It is understood that visits by representatives of Seller or its
suppliers for inspection, adjustment or other similar purposes in
connection with Products purchased hereunder will for all purposes
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
Page 15
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Agreement No. 99006728
be deemed "work hereunder" and will be at no charge to Buyer unless
otherwise agreed in writing with Buyer.
10.5 Work Stoppage
Each party hereto agrees to notify the other party hereto at least
sixty (60) days prior to the expiration of any labor agreement. For any
actual work stoppage, notification will be made within the first twelve
(12) hours after such stoppage has occurred.
For an emergency request by Buyer during any work stoppage, Seller will
provide on-site technical support of Products and/or Services provided
hereunder, including but not limited to: installation, repair,
calibration, removal and hauling and hoisting. Cost will not exceed
current Agreement prices or, where no pricing exists, Seller's/OEM's
current published prices. Should Seller not be able to provide on-site
emergency service during a work stoppage, Seller will release
sufficient information to a third party through a Non-Disclosure
Agreement approved by Buyer to allow the requested Products and/or
Services to be provided in the same manner as though Seller has
provided same. Seller will receive Buyer's written approval prior to
the release of any such information.
10.6 Tools and Equipment
Unless otherwise specifically provided herein, Seller agrees to furnish
all labor, tools and equipment (the "Tools") required for the
performance of this Agreement. Upon completion of the Services, Seller
agrees to promptly remove all tools, equipment, materials and debris
from Buyer's premises. Should Seller use any Tools owned or rented by
Buyer, Seller further agrees:
(a) To defend, indemnify and hold Buyer harmless from and against
any and all loss, liability, damage, expense, claim, demand or
suit (including attorney's fees and court costs) of any kind
and nature whatsoever (including but not limited to claims
resulting from injuries or death to persons or damage to
property) in any way arising out of or resulting from Seller's
maintenance, possession, operation, use, storage or movement
of the Tools or any accident occurring in connection
therewith.
(b) To accept the Tools "as is, where is" and that Buyer will have
no responsibility for the condition or state of repair
thereof.
(c) Not to remove the Tools from Buyer's premises and to return
them to Buyer upon completion of use, or at such earlier time
as Buyer may request, in the same condition as when received
by Seller, reasonable wear and tear excepted.
All use of Tools by Seller will be subject to the provisions of the
Section entitled LIABILITY, and Seller agrees to maintain at all times
adequate insurance acceptable to Buyer to cover its indemnification
obligations hereunder and provide Buyer, upon request, with evidence
thereof.
10.7 Use of Buyer's Systems
Buyer reserves the right to determine how Seller's personnel provided
to perform Services hereunder will access Buyer's network remotely and
locally.
Seller agrees and promises to use the applicable Buyer computer systems
on which the Services are provided in a professional and effective
manner, and only for the purposes of the performance of this Agreement.
Any other intentional use or misuse of such computer systems will
constitute a breach of this Agreement.
Seller acknowledges that any person Seller selects to work under this
Agreement will be expected to fully comply with the known requirements,
conditions, or restrictions applicable to the use of Buyer's computers
or telephone network or applicable to access to Buyer's database,
network or information systems. Seller will indemnify and hold Buyer
harmless for any failure (whether
Proprietary Information
The information contained herein is not for use of disclosure outside
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except under written agreement
Page 16
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Agreement No. 99006728
negligent or intentional) to meet these known requirements, conditions,
or restrictions by any of these persons. Seller further agrees to
cooperate fully in any Buyer inquiry into alleged violations by
Seller's personnel with respect to Buyer's computers, property or
information.
10.8 Damages to Property and Live Equipment
A. Buyer shall notify Seller, of any damage to or theft of
tangible property, real or personal, caused directly or
indirectly by Seller and of circumstances, which it believes,
could give rise to such damage. Seller shall take precautions
and reasonable and necessary measures to prevent further
damage. Seller shall indemnify Buyer for such damage or loss
in accordance with the Section entitled INDEMNIFICATION.
Seller shall replace or temporarily repair such property. At
Buyer's or a third party owner's option and direction, Seller
shall restore or replace Buyer's or other's property to its
original condition, place such property in operational
condition or bear the cost of such restoration or replacement.
B. The continuity of Buyer's service is of paramount importance
and Seller shall at all times exercise the greatest care to
prevent damage to Buyer's property and shall not use any
materials, equipment or methods which, in the judgment of
Buyer, might endanger or interfere with Buyer's service to its
customers.
C. In the event of damage to "live" equipment caused by, or as a
result of Seller's negligent or reckless acts or omissions,
except to the extent that the specific act or omission
producing damage was expressly directed by Buyer, Seller shall
be liable in accordance with the provisions of the Section
entitled INDEMNIFICATION.
10.9 Inspection
When requested by Buyer, Seller agrees to (a) notify Buyer or Buyer's
agent when Equipment is ready for inspection, (b) give Buyer such
reasonable opportunity to inspect such Equipment at any time prior to
the scheduled shipment date, and (c) provide without charge any
production testing facilities and personnel required to inspect the
Equipment under the inspection instructions specified. Purchase of any
Equipment under this Agreement is subject to Buyer's inspection and
acceptance after delivery. It is mutually agreed that Buyer or Buyer's
agent may develop inspection instructions which will be made a part of
this Agreement at a later date by written agreement of the parties.
Inspection or failure to inspect on any occasion will not affect
Buyer's rights under warranty or other provisions of this Agreement.
10.10 Installation Services
Seller agrees to install, at no additional charge to Buyer, all
Products ordered hereunder, including all necessary cabling, connection
with Buyer-supplied power, utility and communications services, and in
all other respects make the Equipment ready for operational use. The
Equipment will be deemed installed and ready for operational use at the
conclusion of a successful Acceptance Test performed at the
Installation Site, which demonstrates that the Equipment meets minimum
design capabilities. Seller will provide Buyer with written
documentation of the successful Acceptance Test and certify, by the
Installation Date, that the Equipment is ready for operational use in
accordance with Buyer's Order.
Installation of the Software by Buyer or Seller will consist of a
version that will perform in accordance with the corresponding
published performance Specifications and will include a demonstration
of the Software's features and functions using Seller's standard
demonstration procedure of the installed Software on Buyer's computer
system.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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The purpose of the installation demonstration will be to confirm that
all Software ordered has been entered into Buyer's program library and
that such Software functions in accordance with Seller's published
performance Specifications associated therewith.
The demonstration will be considered successfully completed when the
Software output results match the standard set of results provided by
Seller.
If Seller installs the Software, Seller will certify in writing to
Buyer, at the successful completion of the installation demonstration,
that the Software has been properly installed and performs in
accordance with Seller's published performance Specifications
applicable thereto. If Buyer installs same, Seller agrees to provide
complete installation instructions with the Software and telephone
consultation during Seller's business hours, on the proper installation
thereof at no additional charge to Buyer.
10.11 Installation Performance
Buyer retains the right to determine the installation vendor for
Products. If Installation of Products purchased hereunder is to be
performed by Seller, the applicable Order(s) shall so indicate. If
Seller or Seller's subcontractors are chosen to install the Products,
Installation shall be performed in accordance with TP76300
"Southwestern Bell Telephone Installation Guide", dated September 1996
for SWBT or with "PACIFIC BELL/NEVADA BELL CENTRAL OFFICE EQUIPMENT
INSTALLATION AND JOB ACCEPTANCE HANDBOOK" dated November 1994 for
PACIFIC ("Installation Handbook"), or Telcordia Publication
TR-NWT-001275" CO Environment Installation/Removal Generic
Requirements" for Affiliate installations and as subsequently amended
from time to time, which are incorporated herein by this reference. In
addition, Seller agrees to adhere to Seller's own installation
standards to the extent such standards do not reduce or detract from
Buyer's installation requirements or impair or impact the design or
operation of the Products.
In order to install Products in SWBT's market areas, Seller must obtain
prior approval from SWBT's local Vendor Certification Committees. In
order to install Products in PACIFIC's market areas, Seller must be
certified by PACIFIC'S Installation Vendor (IVEN) process as a
qualified installation vendor before starting any Installation
activity. Seller's intended use of any subcontractor or agent to
install Products will likewise be subject to prior approval, which
approval will not be unreasonably withheld.
Seller agrees to pay certain liquidated damages for failure to (1) meet
scheduled completion dates, and (2) perform central office equipment
installation functions as requested by Buyer on the Order and in
accordance with Buyer's specification.
The amount of such damages shall be in accordance with the following
schedule:
1. Installation Requirements
o Seller shall perform Central Office Equipment Installation
functions as requested by Buyer on the Order and in accordance
with Buyer's specification. Should Seller's performance or
lack thereof result in an out of service condition, the
following charges will apply: Out of Service Condition -
Seller will forfeit twenty percent (20%) of installation fee.
o An out of service condition will require a positive reporting
of the incident to the SWBT Area Manager - Maintenance
Engineering, PACIFIC Maintenance Engineer, the local
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Agreement No. 99006728
Network Operations supervisor for SWBT and PACIFIC and Buyer's
representative (as described in Buyer's Installation
Handbooks).
2. Completion Dates
o Installation Services shall be completed in accordance with
Buyer's schedule(s) and/or mutually negotiated completion
schedule(s). Seller will forfeit ten percent (10%) of
installation fee for failure to meet scheduled or mutually
agreed advance service and/or job completion dates.
Seller shall not be liable or responsible for liquidated damages for
any delay caused by (1) Buyer changes, revisions or modifications, or
special requirements of Buyer not communicated to Seller, (2) Buyer
changes in scheduled dates, (3) failure of Buyer to provide any item to
be furnished by Buyer, (4) failure of Buyer to furnish required
order/engineering information prior to Seller's standard engineering
interval, or (5) other reasons attributable to Buyer.
Any liquidated damages for which Seller is liable pursuant to this
clause shall be credited against the invoice for the affected Order,
provided, however, that if the relevant invoice has been paid in full,
the applicable amount for liquidated damages shall be remitted to Buyer
by check.
10.12 Installation/Cutover Assistance
If requested by Buyer, Seller agrees to make available at the
installation site, without charge, a field engineer to render
installation and cutover assistance as required by Buyer for the
initial installation/cutover in each of Buyer's operating areas.
10.13 Acceptance
Buyer reserves the right to accept or reject Products and Services
after the delivery (including installation or other work, if required)
of Products at the location designated in the applicable Order and
after the performance of Services if such Products or Services fail to
meet the applicable Specifications. If, prior to acceptance by Buyer,
any of the Products or Services are found to be not in strict
conformance to this Agreement, including the applicable Order, Buyer
shall have the right (a) to reject the same and cancel any affected
Order(s) or, (b) at its option, (1) in the case of Products, require
that such Products be repaired or replaced promptly at Seller's risk
and expense (including freight charges) and (2) in the case of
Services, require the performance or reperformance of such Services.
Buyer's use of Products for revenue generating purposes shall not
thereby constitute acceptance. Installation of replacement Equipment
will be within the time period mutually agreed upon by the parties in
writing. Buyer may terminate the applicable Order and request the
removal of the Equipment with no charges or penalties. Acceptance of
Products by Buyer shall be without prejudice to Buyer's right to revoke
acceptance pursuant to the Uniform Commercial Code.
Buyer reserves the right to conduct an Acceptance Test of the Products
and Services during the Acceptance Period starting the day after Seller
certifies in writing that the Equipment is ready for Acceptance
Testing, if Seller installs the Equipment, or the day following
completion of installation by Buyer; provided, however, Acceptance
Testing will not begin until Buyer personnel have been trained by OEM
to operate the Equipment. In such excepted case, Acceptance Testing
will begin the business day following completion of the required
training. Testing will be performed to determine whether:
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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associated necessary training required ensuring that technicians
perform quality installations. Seller therefore, agrees, to provide
training on the installation of all Equipment purchased hereunder to
Buyer or any other party reasonably designated by Buyer. Such
installation training shall include, but not be limited to:
1. Any unique requirements for transporting or handling of the
Equipment.
2. The proper order in which the different elements that comprise
the system must be installed and the location of each element.
3. The methods for routing cable and fiber within the system and
up to the cable rack provided by Buyer.
4. The methods for terminating connectors that are unique to the
system.
5. Proper routing and terminating of power cable and connectors.
6. Proper routing and termination of ground cable and connectors.
7. Any unique features in the design of the system that if not
properly installed may adversely affect the operation of the
intelligent network element.
8. The order and proper methods for applying power to the system
when it is initially powered up so it does not interfere with
the operation of any network element already in service. Other
installation requirements are specified in Buyer's
"Installation Handbook".
10.15 Relocation
Upon thirty (30) days' prior written notice from Buyer, Seller agrees
to prepare for relocation and reinstall Equipment purchased hereunder
at any other site at Buyer's expense. The charge will be at no more
than Seller's maintenance rates set forth herein.
11.0 REPAIR AND MAINTENANCE
11.1 Notice of Delays & Liquidated Damages
A. Whenever any actual or potential cause delays or threatens to
delay Seller's performance with respect to delivery, including
the availability of promised features or functionality, in
addition to all other Seller obligations and Buyer remedies,
Seller shall immediately and regularly thereafter, but no less
often than twice-a-month, so notify Buyer in writing. Such
notice shall include all relevant information concerning the
actual or potential cause of the delay and its background.
During the period such actual or potential cause exists,
Seller shall keep Buyer advised of its effect on Seller's
performance and of the measures being taken to remove it. For
purposes of this section, promised feature or functions shall
include Seller's Product Specifications for a promised feature
or function and Seller's written commitments to Buyer for
delivery of a promised feature or function.
B. Seller shall be given twenty (20) business days from the
occurrence of such failure to cure its breach and/or work with
Buyer to develop a plan, which will minimize Buyer's
liability. Although Buyer shall have the final authority to
approve any such plan, Buyer shall not unreasonably delay or
withhold approval of any technically viable plan that provides
a reasonable remedy for Seller's failure to meet the agreed
upon delivery or completion date as specified above.
Seller shall pay to Buyer in total satisfaction of this
provision as liquidated damages and not as a penalty the
lesser of either (i) an amount equal to one percent (1%) of
the price of the Products per day for such delayed Products,
or (ii) one thousand dollars ($1,000), for each day of delay
occurring after the end of the twenty day cure period set
forth in the preceding paragraph until the actual Delivery
Date. Liquidated damages under this section shall in no event
exceed 100% of the dollar volume of the portion of the Order
and regularly thereafter, but no less than twice-a-month, so
notify Buyer in writing. Such notice shall include all
relevant information concerning the actual or potential cause
of the delay and its background. During the period such actual
or potential cause
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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exists, Seller shall keep Buyer advised of its effect on
Seller's performance and of the measures being taken to remove
it. For purposes of this section, promised feature or
functions shall include Seller's Product Specifications for a
promised feature or function and Seller's written commitments
to Buyer for delivery of a promised feature or function.
B. Seller shall be given twenty (20) business days from the
occurrence of such failure to cure its breach and/or work with
Buyer to develop a plan, which will minimize Buyer's
liability. Although Buyer shall have the final authority to
approve any such plan, Buyer shall not unreasonably delay or
withhold approval of any technically viable plan that provides
a reasonable remedy for Seller's failure to meet the agreed
upon delivery or completion date as specified above.
Seller shall pay to Buyer in total satisfaction of this
provision as liquidated damages and not as a penalty the
lesser of either (i) an amount equal to one percent (1%) of
the price of the Products per day for such delayed Products,
or (ii) one thousand dollars ($1,000), for each day of delay
occurring after the end of the twenty day cure period set
forth in the preceding paragraph until the actual Delivery
Date. Liquidated damages under this section shall in no event
exceed 100% of the dollar volume of the portion of the Order
which is delayed, or which cannot be deployed because of the
delayed delivery of other parts of the Order. Such amount
shall be paid, at Buyer's election, in the form of either cash
(net 30 days after notice), credit, or a Product credit on a
going-forward basis.
This liquidated damage amount shall not apply where the
lateness was caused by failure of a vendor to fulfill a
contractual obligation to Seller where such failure was beyond
the vendor's reasonable control, such as by Force Majeure, as
defined in this Agreement. Buyer shall give Seller the
flexibility to ship partial order quantities if deployment is
reasonably feasible consistent with Buyer's deployment plans
and personnel availability, in order to minimize liquidated
damages. In addition to the foregoing, Seller shall diligently
use proactive efforts to remedy the shortfall. Such efforts
include, at no additional charge to Buyer, the following: a)
an automatic and immediate allocation of resources to meet the
failed commitment (or anticipated shortfall); b) the provision
of hotlot or expedite status for material which is in short
supply; c) expedited shipment; and, d) the waiving of
lead-time requirements for further orders as necessary to meet
the commitment.
In the event that Seller does not deliver Products including
delivery of promised features, to Buyer or complete
performance of Services on or before such extended Delivery
Date (which shall, unless the parties agree to a shorter
period, be at least thirty (30) business days after the
originally scheduled Delivery Date), Buyer may (1) cancel such
Order or (2) extend the Delivery Date and hereby reserves its
rights as stated above. No payments, progress or otherwise,
made by Buyer to Seller after the scheduled Delivery Date
shall constitute a waiver of liquidated damages, and receipt
of liquidated damages shall be in lieu of consequential and
incidental damages resulting from Seller's breach.
11.2 Limitation of Liability
The following section supersedes the General Agreement No. 98005906,
section entitled "Limitation of Liability", page 12:
Except for either party's obligation under section entitled
INFRINGEMENT INDEMNITY and INDEMNIFICATION, and except as Seller may be
liable for liquidated damages under the
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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section entitled NOTICE OF DELAYS AND LIQUIDATED DAMAGES, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR OF DATA),
EVEN IF THE PARTIES WERE FULLY APPRISED OF THE FORSEEABILITY OF SUCH
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, UNDER OR
ARISING OUT OF THIS AGREEMENT.
*Confidential treatment will be requested.
13.0 OTHER
13.1 Patents
No licenses, express or implied, under any patents are granted by Buyer
to Seller under this Agreement.
13.2 Copyrights
Seller agrees that all rights, title and interest in and to all
original works of authorship which Seller produces or composes in
connection with the Services shall be considered works made for hire
and shall belong to the Buyer, including all copyrights thereon, and
the rights to obtain registrations of copyrights thereon throughout the
world. In the event that such works contemplated hereunder as works
made for hire shall not be considered works made for hire, Seller
hereby assigns such Works and all rights, title and interest in them to
Buyer.
13.3 Headings
The article, section and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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IN WITNESS WHEREOF, the foregoing Agreement has been executed by authorized
representatives of the parties hereto, in duplicate, as of the dates set forth
below.
Seller Accepted:
World Wide Technology, Inc.
("Seller")
By:
-----------------------------------------
Typed Name:
---------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
Buyer Accepted:
SBC Operations, Inc.
("Buyer")
By: /s/ Steve Welch
-----------------------------------------
Typed Name: Steve Welch
Title: President, SBC Corporate and Administrative Services
Date: 6/29/99
---------------------------------------
Proprietary Information
The information contained herein is not for use of disclosure outside
SBC Operation, Inc. their affiliates and World Wide Technology, Inc.
except under written agreement
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Ex.10.15
PRODUCT RESALE AGREEMENT
No. WWTI-I
BETWEEN
LUCENT TECHNOLOGIES INC.
AND
WORLD WIDE TECHNOLOGY, INC.
* Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
<PAGE> 2
No. WWTI-1
Page 2 of 23
This Product Resale Agreement ("Agreement") is made by and between World Wide
Technology, Inc., a Missouri corporation, with offices at 127 Weldon Parkway, St
Louis Missouri 63043 ("Vendor") and Lucent Technologies Inc., a Delaware
corporation, with its principal place of business at 600 Mountain Avenue, Murray
Hill, New Jersey 07974 ("Lucent").
WHEREAS, Lucent desires to sell certain 5ESS(R) electronic switch system
apparatus [*Confidential treatment will be requested.] ("Product(s)") and is
desirous of having another company stock and furnish equipment to Ameritech
Services, Inc. ("ASI"); and
WHEREAS, Vendor represents that it is a reseller of telecommunications equipment
and has in place the facilities and organization to stock and furnish such
equipment to ASI; and
WHEREAS, Lucent believes that ASI desires to make purchases of Product(s) from a
certified Minority Business Enterprise ("MBE"); and
WHEREAS, Vendor represents and warrants that it is a certified MBE and desires
to purchase Product(s) for the sole purpose of reselling such Product(s) to ASI.
NOW THEREFORE the parties agree as follows:
1. SCOPE OF AGREEMENT
(a) The terms and conditions of this Agreement shall apply to transactions
in which Lucent furnishes Product(s) to Vendor so that Vendor may
furnish such Product solely to and for ASI.
(b) In consideration of the covenants by Vendor contained herein, Vendor is
granted the right to obtain the Products [*Confidential treatment will
be requested.], plus such additional items as Lucent may from time to
time in writing agree to furnish to Vendor, solely for the purpose of
selling, or otherwise furnishing Product to ASI. Vendor shall only sell
or otherwise furnish Product to ASI against ASI orders placed with
Vendor. Products purchased by Vendor from Lucent pursuant to this
Agreement shall not be resold, assigned or delivered to any other
person or entity other than ASI and are sold solely on the
representation that such purchases are related to the sale and delivery
of Product to ASI. Any Products Vendor desires to purchase for work
competitively awarded by ASI shall be purchased through other
distribution channels or as may be mutually agreed by the parties.
(c) Vendor is also a participant in Lucent's Value Added Reseller ("VAR")
program and acknowledges and agrees that in performing for and on
behalf of ASI, Vendor is not participating in the VAR program and that
any purchases for or on behalf of ASI hereunder shall not be counted
towards any awards, discounts, credits or minimum purchase commitments
as may exist under the VAR program. Vendor agrees that it shall not
make any claim for any such benefits for the VAR program for any sales,
deliveries or efforts hereunder.
LUCENT PROPRIETARY
<PAGE> 3
No. WWTI-1
Page 3 of 23
(d) VENDOR AGREES THAT THE TERMS AND CONDITIONS OF PARAGRAPHS 1(a) THROUGH
1(c) ARE MATERIAL TO THE AGREEMENT AND ANY BREACH THEREOF BY VENDOR
SHALL BE A MATERIAL BREACH AND CAUSE FOR TERMINATION AS PROVIDED
HEREIN.
(e) No payment of any fee is required as a condition of such grant. Lucent
may, without the consent of Vendor, delete or add any Product available
to Vendor. Lucent agrees to provide notice to Vendor in the event such
additions and deletions to the Products available hereunder.
(f) Vendor acknowledges that this Agreement does not confer upon it an
exclusive right to market Product or any other items and Lucent
expressly reserves the right to contract with others to market Product
or any other items to ASI, and to itself engage in such marketing, in
competition with Vendor.
2. DEFINITIONS
For the purposes of this Agreement, the following terms and their definitions
shall apply.
a) "Documentation" shall mean materials useful in connection with the
Product.
b) "Product" shall mean those Lucent Products defined above and sold or
delivered to Vendor [*Confidential treatment will be requested.].
c) "ASI" shall mean Ameritech Services, Inc. as it exists on the day of
this Agreement and its current Affiliate(s) in the five (5) state
Ameritech region which are formally authorized by ASI to purchase
Products from Lucent.
d) "Licensed Material" shall mean Software in object code form for which
Lucent has the right to grant licenses or sublicenses for use by ASI.
Licensed Material also includes all Documentation associated with the
Software which is reasonably necessary to enable ASI to operate,
administer and maintain the system for which such Software is licensed.
No license to Source Code is granted hereunder.
e) "Software" shall mean a stored program in object code form consisting
of a set or sets of logical instructions and tables of information
which guide the functioning of a processor, but the term "Software"
does not mean or include Firmware.
f) "Firmware" shall mean hardware or other medium containing a pattern of
bits representing a Software program.
g) "Source Code" shall mean any version of Software incorporating,
high-level or assembly language that generally is not directly
executable by a processor.
LUCENT PROPRIETARY
<PAGE> 4
No. WWTI-1
Page 4 of 23
3. CONFIDENTIALITY
Vendor and Lucent shall keep this Agreement and any order issued hereunder
confidential, except as reasonably necessary for performance thereunder and
except to the extent disclosure may be required by applicable laws or
regulations, in which latter case the party making such disclosure shall
promptly inform the other, prior to making such disclosure.
4. RELATIONSHIP OF THE PARTIES
The relationship of the parties under this Agreement shall be and at all times
remain one of independent contractors and shall not create the relationship of
franchisor and franchisee, joint venturers or principal and agent. This
Agreement does not establish a franchise or agency. Vendor is not paying Lucent
any franchise fee pursuant to this Agreement. Vendor shall not have authority to
assume or create obligations on Lucent's behalf with respect to the Products
furnished by Lucent hereunder or otherwise, and Vendor shall not take any action
which has the effect of creating the appearance of having such authority.
All persons employed by Vendor shall be considered solely Vendor's employees or
agents, and Vendor shall be responsible for payment of all unemployment, Social
Security, and other payroll taxes including contributions from them when
required by law.
5. TERM
This Agreement is effective upon signature of the last party, and except as
otherwise provided herein, shall continue in effect for a period of one (1)
year. The term of this Agreement may be extended for one (1) year periods by
mutual agreement of the parties. The modification, termination or expiration of
this Agreement shall not affect the rights or obligations of either party under
any order accepted by Lucent before the effective date of the modification,
termination or expiration.
6. OBLIGATIONS ASSUMED BY LUCENT
Lucent shall:
(a) make available to Vendor Products as may be changed from time to time;
(b) provide or arrange for reasonable amounts of technical assistance.
Lucent will make training available in accordance with its standard
terms and conditions. Tuition and fees for such training shall be as
advertised and available from Lucent. Training will be provided at
Lucent's location(s) which normally provide(s) such training unless
otherwise mutually agreed in writing. In addition to tuition fees,
Vendor will bear all related lodging and transportation expenses for
its employees taking the training. If Vendor requests additional
technical assistance or training, Lucent will provide or arrange for it
upon such terms, conditions, and prices as the parties shall mutually
agree upon.
LUCENT PROPRIETARY
<PAGE> 5
No. WWTI-1
Page 5 of 23
7. OBLIGATIONS ASSUMED BY VENDOR
Vendor shall:
(a) obtain and maintain all government licenses, permits and approvals
which are necessary and advisable for the implementation of this
Agreement and comply with all applicable laws and regulations;
(b) refrain from taking any action which would cause Lucent to be in
violation of any law of any jurisdiction;
(c) promptly inform Lucent of any facts or opinions likely to be relevant
in relation to marketing of Products including, without limitation, all
suspected product defect safety problems or ASI complaints;
(d) provide Lucent with semi-annual summaries of sales of each Product
including number of units and dollars of sales to ASI by ASI order
number with monthly breakdowns. Lucent agrees to maintain the
confidentiality of such information between the two companies.
(e) on each anniversary of this Agreement, or as may be requested from time
to time, provide Lucent with a written certification by the Vendor or
other evidence as may be requested, that purchases of Product under
this Agreement are solely for the purpose of sale of Product to ASI.
*Confidential treatment will be requested.
(g) on each anniversary of this Agreement, or as may be requested from time
to time, provide Lucent with a written certification by the Vendor or
other evidence as may be requested, that end or remains a certified
MBE, as certified by an independent entity satisfactory to Lucent;
(h) provide requested data in reasonable detail on the overall market
potentials and other information related to the Product furnished
hereunder as an aid in measuring Lucent's market potential and planning
its efforts; and
(i) give Lucent, upon at least seventy-two (72) hours notice, access during
normal business hours to the premises of Vendor in order that Lucent
may inspect and verify compliance by Vendor with its obligations under
this Agreement.
LUCENT PROPRIETARY
<PAGE> 6
No. WWTI-1
Page 6 of 23
8. RECORDS AND AUDITS
Vendor shall maintain accurate records which relate to Products furnished
hereunder, including but not limited to quality control records, in accordance
with generally accepted accounting and quality control principles and practices
uniformly and consistently applied in a format that will permit audit. Unless
otherwise provided in this Agreement, Vendor shall retain such records for a
period of three (3) years from the date of final payment under the order to
which such records relate. To the extent that such records may be relevant in
determining if Vendor is complying with its obligations under the applicable
order, Lucent and its authorized representatives shall have access to such
records for inspection and audit during normal business hours upon at least
seventy-two (72) hours notice.
9. FORECASTS AND ORDERS
(a) Upon the execution of this Agreement, Vendor agrees to provide to
Lucent a rolling monthly forecast of the projected purchases of
Products by Product type. Vendor will use reasonable efforts to insure
these forecasts are as accurate as possible. However, these purchasing
forecasts are only projections or forecasts and are not to be construed
as commitments to purchase any forecasted amount.
(b) An order submitted by Vendor shall contain the information necessary
for the furnishing of the Products including, without limitation,
Lucent's contract number, the date of the order, the shipping
destination and reference to any applicable Lucent specifications and
information. Schedules and dates, including shipment dates, for the
furnishing of the Products, must be agreed to by Lucent prior to its
acceptance of the order. All orders submitted by Vendor shall be deemed
to incorporate and be subject to the terms and conditions of this
Agreement as well as any supplemental terms and conditions agreed to by
authorized representatives of the parties in writing. Lucent reserves
the right to reject any order for good reason.
(c) Vendor acknowledges that any estimates or forecasts of potential levels
of business between the parties made by Lucent during the negotiations
of this Agreement were good faith estimates only and agrees that Lucent
shall have no liability if such levels of business are not reached.
10. PRODUCT CHANGES
Lucent may at any time without advising Vendor make changes in the Products or
modify the drawings and specifications relating thereto, or substitute Products
of later design to fill an order, provided the changes, modifications or
substitutions under normal and proper use do not impact upon form, fit, or
function or are recommended to enhance safety. Lucent may use either new,
reconditioned, refurbished or remanufactured Products or parts in the furnishing
of Products, spares, replacement parts or repairs under this Agreement.
LUCENT PROPRIETARY
<PAGE> 7
No. WWTI-1
Page 7 of 23
11. PRODUCT NAME CHANGE
Vendor acknowledges that Lucent will be changing during the term of this
Agreement the identity of some of the Products to be furnished hereunder to
remove references to "AT&T" or abbreviations, contractions, or simulations
thereof. At such time as Lucent elects to institute a new trade name, logo,
trademark, trade device, service mark, symbol, code and/or specification in
connection with all or any Products or Licensed Materials, Lucent shall notify
Vendor in writing ("Name Change Notice"). Said Name Change Notice shall include,
without limitation:
(a) the new trade name, logo, trademark, trade device, service mark,
symbol, code, and/or specification selected by Lucent (in its sole and
absolute discretion); and
(b) instructions, guidelines, and/or other terms and conditions governing
the use by Vendor of such new trade name, logo, trademark, trade
device, service mark, symbol, code and/or specification in connection
with this Agreement.
Effective as of that date, which shall be thirty (30) days after the date of any
Name Change Notice, any and all rights of Vendor under this Agreement
(including, without limitation, Clause 20, TRADEMARKS) to use any mark (as
defined in Clause 20) which contains any reference to "AT&T" or any
abbreviation, contraction or simulation thereof shall be terminated and null and
void and thereupon all rights of Vendor under this Agreement to use any mark
shall apply to and be in accordance with the Name Change Notice.
* Confidential treatment will be requested
13. INVOICING AND TERMS OF PAYMENT
(a) Invoices for Products will be sent upon shipment, or as soon thereafter
as practical. Lucent may make partial shipments of Vendor's orders.
Such partial shipments shall be separately invoiced.
(b) [* Confidential treatment will be requested]
(c) [* Confidential treatment requested]
LUCENT PROPRIETARY
<PAGE> 8
No. WWTI-1
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(d) Delinquent payments are subject to a late payment charge of one and
one-half percent (1-1/2%) per month, or portion thereof, of the amount
due (but not to exceed the maximum lawful rate). Vendor shall notify
Lucent of any disputed invoices within six (6) months from the date of
invoice.
(e) Vendor shall be liable for and shall reimburse Lucent for all taxes and
related charges (including any interest and penalties), however
designated (excluding taxes on Lucent's net income) imposed upon or
arising from the provision of or the transfer, sale, license, or use of
Products, or other items provided by Lucent. Taxes reimbursable under
this clause shall be separately listed on the invoice.
(f) Lucent shall not collect the otherwise applicable tax if Vendor's
purchase is exempt from Lucent's collection of such tax and a valid tax
exemption certificate is furnished by Vendor to Lucent.
(g) In no event shall Vendor's payment, as set forth in this Clause 13,
INVOICING AND TERMS OF PAYMENT, be contingent on Vendor's resale of
Product(s) or product(s) to ASI.
14. DELIVERY, TITLE AND RISK OF LOSS
Shipments of Product shall be made FOB destination and title and risk of loss to
such Products shall pass to Vendor upon delivery to the Vendor. Shipments of
Licensed Materials shall be made FOB destination and risk of loss to such
Licensed Materials shall pass to Vendor upon delivery to the Vendor. Title to
Licensed Materials shall remain in Lucent. Vendor shall notify Lucent promptly
of any claim with respect to loss which occurred while Lucent bears the risk of
loss, of which Vendor has knowledge, and shall cooperate in every reasonable way
to facilitate the settlement of any claim. For the purposes of this Section,
"delivery" shall mean the point at which Lucent or Lucent's supplier or agent
turns over possession of the Products and/or Licensed Material ordered pursuant
to this Agreement to Vendor, Vendor's warehouse, Vendor's carrier (as may be
designated in the order), or Vendor's agent and not necessarily the final
destination shown on the order, prepaid and added to the invoice as may be
specified on individual orders. When Vendor requests Lucent to arrange the
transportation of the Product, Lucent shall ship all Products freight collect.
If Lucent is instructed to ship Product prepaid and add, Lucent shall select a
carrier based on the best rate, as negotiated by Lucent, and Vendor shall pay
Lucent's transportation costs in accordance with the standard factors then in
effect.
15. INSURANCE
(a) Any and all insurance and/or bonds that may be required under the laws,
ordinances and regulations of any governmental authority including
Worker's Compensation and
LUCENT PROPRIETARY
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Employer's Liability (individually and collectively "Workers Compensation") is
and shall be the sole responsibility of Vendor.
Without in any way limiting Vendor's obligations as set forth in Clause
[* Confidential treatment will be requested] below, Vendor shall
maintain at least the following insurance:
(1) Comprehensive General Liability (Bodily Injury and Property
Damage) Insurance including the following supplementary
coverage:
(i) Contractual Liability Insurance to cover liability
assumed under this Agreement;
(ii) Product and Completed Operations Liability Insurance;
and
(iii) Broad Form Property Damage Liability Insurance.
(2) In addition, if automobiles will be used by Vendor, Vendor
shall maintain Automobile Bodily Injury and Property Damage
Liability Insurance. Such insurance shall extend to owned,
non-owned and hired automobiles used in the performance of any
order and shall comply with all applicable laws, rules, and
regulations.
(3) The limit of the liability for such insurance as described in
subparagraphs (a) (1) and (a) (2) above shall not be less
than:
(i) one million dollars ($1,000,000) combined single
limit per occurrence, or
(ii) two hundred fifty thousand dollars ($250,000) for
bodily injury or death per occurrence and one hundred
thousand dollars ($100,000) for property damage per
occurrence.
(b) The insurance specified in paragraph (a) above shall:
(1) Provide that said insurance is primary coverage with respect
to all insureds.
(2) Contain a Standard Cross Liability Endorsement which provides
that the insurance applies separately to each insured, and
that the policies cover claims or suits by one insured against
the other.
(3) Not be terminated, canceled or substantially changed without
thirty (30) days prior written notice to Lucent.
(4) Identify in writing any deductible amount and type of
deductible.
(c) Vendor shall provide Lucent with certification, when requested by
Lucent, by a properly qualified representative of the insurer, of the
names of the insured, the type and amount
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of insurance, the location and operations to which the insurance
applies, the expiration date and the insurer's agreement to provide
written notice to Lucent at least thirty (30) days prior to the
effective date of any termination, cancellation, lapse or material
change in the policy.
(d) Vendor's obligations to maintain the insurance and to provide policy
endorsements as required herein shall survive the termination of this
Agreement, and Vendor agrees to maintain such insurance and
endorsements for a period of one (1) year beyond the written notice of
termination by either party.
(e) Vendor agrees to indemnify and save harmless Lucent from and against
any losses, damages, claims and liability that arise out of or result
from injuries or death to persons or damage to property caused by
Vendor's acts or omissions in any way arising out of Vendor's
performance under this Agreement, including claims from Lucent's
customers for warranty service, representations made by Vendor and
incidental and consequential damage. At Lucent's request, Vendor agrees
to defend Lucent against such claims, demands, or suits at Vendor's
expense. Lucent agrees to notify Vendor within a reasonable time of any
written claims or demands against Lucent for which Vendor is
responsible under this paragraph.
16. USE OF INFORMATION
All Information which bears a proprietary legend or notice restricting its use,
copying, or dissemination shall remain the property of the furnishing party
("Information"). The furnishing party grants the receiving party the right to
use such Information only as follows: such Information (1) shall not be
reproduced or copied, in whole or in part, except for use as authorized in this
Agreement; and (2) shall, together with any full or partial copies thereof; be
returned or destroyed when no longer needed. When Lucent is the receiving party,
Lucent shall use such information only for the purpose of performing under this
Agreement. When Vendor is the receiving party, Vendor shall use such Information
only (1) to evaluate or order Lucent's Products or (2) to install, operate and
maintain the particular Products for which it was originally furnished. Unless
the furnishing party consents in writing, such Information shall be held in
confidence by the receiving party, except for that part, if any, which is known
to the receiving party free of any confidential obligation, or which becomes
generally known to the public through acts not attributable to the receiving
party. The receiving party may disclose such Information to other persons, upon
the furnishing party's prior written authorization, but solely to perform acts
which this clause expressly authorizes the receiving party to perform itself and
further provided such other person agrees in writing (a copy of which writing
will be provided to the furnishing party at its request) to the same conditions
respecting use of Information contained in this clause and to any other
reasonable conditions requested by the furnishing party.
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17. INFRINGEMENT
In the event of any claim, action, proceeding or suit by a third party against
Vendor alleging an infringement of any United States patent, United States
copyright, or United States trademark, or a violation in the United States of
any trade secret or proprietary rights by reason of the use, in accordance with
Lucent's or other applicable specifications, of any Product, Licensed Material
(software or related documentation), if any, or other item furnished by Lucent
to Vendor under this Agreement, Lucent, at its expense, will defend Vendor,
subject to the conditions and exceptions stated below. Lucent will reimburse
Vendor for any cost, expense or attorney's fee, incurred at Lucent's written
request or authorization, and will indemnify Vendor against any liability
assessed against Vendor by final judgment on account of such infringement or
violation arising out of such use.
If Vendor's or ASI's use shall be enjoined or in Lucent's opinion is likely to
be enjoined, Lucent will, at its expense and at its option, either (a) replace
the affected Product, Licensed Material or other item furnished pursuant to this
Agreement with a suitable substitute free of any infringement or violation, (b)
modify it so that it will be free of the infringement or violation, or (c)
procure for Vendor or ASI a license or other right to use it. If none of the
foregoing options is practical, Lucent will accept the return of the enjoined
Product, Licensed Material or other item and refund to Vendor any amounts paid
to Lucent less a reasonable charge for any actual period of use by Vendor.
Vendor shall give Lucent prompt written notice of all such claims, actions,
proceedings or suits alleging infringement or violation and Lucent shall have
full and complete authority to assume the sole defense thereof; including
appeals, and to settle same. Vendor shall, upon Lucent's request and at Lucent's
expense, furnish all information and assistance available to Vendor and
cooperate in every reasonable way to facilitate the defense and/or settlement of
any such claim, action, proceeding or suit.
No undertaking of Lucent under this section shall extend to any such alleged
infringement or violation to the extent that it: (a) arises from adherence to
design modifications, specifications, drawings, or written instructions which
Lucent is directed by Vendor or ASI to follow, but only if such alleged
infringement or violation does not reside in corresponding commercial Product or
Licensed Material of Lucent's design or selection; or (b) arises from adherence
to instructions to apply Vendor's or ASI's trademark, trade name, or other
company identification; or (c) resides in a Product or Licensed Material which
is not of Lucent's origin and which is furnished by Vendor or ASI to Lucent for
use under this Agreement; or (d) relates to use of Products, Licensed Materials
or other items provided by Lucent in combinations with other Products, Licensed
Materials or other items, furnished either by Lucent or others, which
combination was not installed, recommended or otherwise approved by Lucent. In
the foregoing cases (a) through (d), Vendor will defend and save Lucent
harmless, subject to the same terms and conditions and exceptions stated above
with respect to Lucent's rights and obligations under this clause.
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* Confidential treatment will be requested
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* Confidential treatment will be requested
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* Confidential treatment will be requested
20. TRADEMARKS
Vendor will not, without Lucent's express written permission, use in marketing,
advertising, publicity, or otherwise any trade name, trademark, trade device,
service mark, symbol, code, or specification or any abbreviation, contraction,
or simulation thereof ("mark") of the Lucent companies nor shall Vendor claim
any ownership therein. Vendor shall not remove, deface, alter or otherwise
obscure any mark of the Lucent companies which is on a Product sold under this
Agreement nor shall Vendor place any mark of any other company on any such
Product. Any such usage shall inure to the benefit of the Lucent company mark
owner. As used in this Clause the term "Lucent" means Lucent Technologies Inc.,
Bell Labs and its Affiliated companies.
21. LEGISLATION AND GOVERNMENTAL REGULATIONS
Vendor shall at all times comply with all applicable requirements of federal,
state and local laws, ordinances, administrative rules and regulations. Vendor
shall contractually require its subcontractors, distributors and agents to
comply with all such legal requirements as well, and Vendor shall indemnify,
defend and hold harmless Lucent for any damages, losses, costs, or penalties
incurred by Lucent by virtue of such noncompliance by Vendor or its
subcontractors, distributors, or agents. If requested by Lucent, Vendor shall
advise Lucent in writing of the identity and addresses of its subcontractors,
distributors and agents in connection with the Products.
22. TERMINATION OF ORDERS
Vendor may, upon notice to Lucent, and upon terms that will compensate Lucent
from all loss, terminate any order or portion thereof, issue a "hold" on an
order, or suspend performance under the Agreement in whole or in part, except
with respect to Products which have already been shipped or services which have
already been performed. Vendor's liability to Lucent for any
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such termination, "hold" or suspension shall include, but not be limited to, the
price of all services performed and of Products delivered or held for
disposition, loss of profits, incurred costs (including charges made by Lucent
suppliers), work in progress, and an allocation of general and administrative
expenses.
23. TERMINATION OF AGREEMENT
(a) Either party may terminate this Agreement without cause or reason
whatsoever upon sixty (60) days prior written notice to the other
setting forth the effective date of such termination. The termination
of this Agreement shall not affect the obligations of the parties with
respect to any orders previously entered into hereunder, and the terms
and conditions of this Agreement shall continue to apply to such orders
as if this Agreement had not been terminated.
Upon termination of this Agreement without cause pursuant to this
paragraph neither party shall be liable to the other, either for
compensation or for damages of any kind or character whatsoever,
whether on account of the loss by Lucent or Vendor of present or
prospective profits on sales or anticipated sales, or expenditures,
investments, or commitments made in connection therewith or in
connection with the establishment, development or maintenance or
Vendor's business, or on account of any other cause or thing
whatsoever, provided that termination shall not prejudice or otherwise
affect the rights or liability of the parties with respect to Products
theretofore sold hereunder, or any indebtedness then owing by either
party to the other.
(b) Either party may terminate this Agreement, immediately, upon
twenty-four (24) hours written notice:
(i) if the other party files a petition in bankruptcy, or is
adjudicated bankrupt, or makes a general assignment for the
benefit of creditors, or becomes insolvent, or is otherwise
unable to meet its business obligations for a period of six
(6) months. Such party shall promptly and fully inform the
other party of the imminence or occurrence of any event
described in this subparagraph; or
(ii) in the event of change in the controlling ownership of Vendor
or in the event of a sale or assumption of all or
substantially all of the assets of Vendor on or after the
effective date of this Agreement, if such change, sale or
assumption is unacceptable by Lucent.
(iii) in the event the agreement between Vendor and ASI terminates
in which event Vendor shall notify Lucent of said termination
immediately and in writing.
(c) Either party may terminate this Agreement if the other party breaches
any of the material terms and conditions of this Agreement and the
other party fails to cure such breach within thirty (30) days after
written notice thereof from the non-breaching party.
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(d) Notwithstanding any other terms and provisions of this Agreement or
other arrangements agreed to by the parties, termination of this
Agreement shall automatically accelerate the due date of all invoices
for Products such that they shall become immediately due and payable on
the effective date of termination.
(e) Upon notice of termination, Lucent shall be entitled to reject all or a
part of any orders received from Vendor after notice but prior to the
effective date of termination.
Notwithstanding any credit terms made available to Vendor prior to that time,
any Product shipped after notice of termination and prior to effective date of
termination shall be paid for by certified or cashier's check prior to shipment.
Upon termination or non-renewal of this Agreement, Vendor shall immediately:
(1) Discontinue any and all use of marks (as defined in the Clause
TRADEMARKS) except to identify the Products, including but not
limited to such use in advertising or business material of
Vendor;
(2) Remove and return to Lucent or destroy at Lucent's request,
any and all promotional material supplied without charge by
Lucent;
(3) Return, upon request, all Lucent Information as described in
the paragraph Use of Information except that which Lucent
agrees is necessary to operate and maintain previously
furnished Products;
(4) Cease holding itself out, in any other manner, as a Vendor
capable of purchasing or obtaining Products for or on behalf
of ASI directly from Lucent; and
(5) Notify ASI and others who may, at the initiation of Vendor,
identify, list or publish Vendor's name as a Vendor capable of
purchasing or obtaining Products for or on behalf of ASI
(including but not limited to publishers of other business
directories) to discontinue such listings.
24. SURVIVAL OF OBLIGATIONS
The respective obligations of Vendor and Lucent under this Agreement which by
their nature would continue beyond the termination, cancellation or expiration
hereof shall survive such termination, cancellation or expiration.
25. FORCE MAJEURE
Except with respect to Vendor's obligation to make timely payments, neither
party shall be liable to the other party for any loss, damage, delay or failure
of performance resulting directly or indirectly from any cause which is beyond
its reasonable control, including, but not limited to the elements;
extraordinary traffic conditions, riots; civil disturbances, wars; states of
belligerency or acts of the public enemy; labor disputes; strikes, work
stoppages, inability to secure raw
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materials, product or transportation facilities; or the laws, regulations, acts
or failure to act of any governmental authority, including but not limited to
denial of a U.S. Export License, hereinafter referred to as "Force Majeure". A
Party shall promptly notify the other party of the occurrence of a Force Majeure
event and the notifying party shall be excused from any further performance of
these obligations affected by the Force Majeure event for as long as such Force
Majeure event continues and such party uses and continues to use its best
efforts to recommence performance. Failure of either party to perform under this
Agreement because of the endurance of a Force Majeure event for more than three
(3) months will represent grounds by either party for its termination of the
portion of this Agreement affected by the Force Majeure event.
26. ASSIGNMENT
Except as provided in this clause, neither party shall assign this Agreement or
any right or interest under this Agreement, nor delegate any work or obligation
to be performed under this Agreement, (an "Assignment") without the other
party's prior written consent. Nothing shall preclude a party from employing a
subcontractor in carrying out its obligations under this Agreement, but a
party's use of such subcontractor shall not release the party from its
obligations under this Agreement. An attempted assignment or delegation in
contravention of this clause shall be void and ineffective. Lucent has the sole
right to assign this Agreement and to assign its rights and delegate its duties
under this Agreement, in whole or in part, at any time and without Vendor's
consent, to any corporate parent or to any present Affiliate or to any
combination of the foregoing, provided that Lucent give prompt written notice of
such assignment to Vendor.
27. SEVERABILITY
If any provision in this Agreement, or any portion thereof is subsequently held
to be invalid or unenforceable under any applicable statute or rule of law, then
that provision or portion notwithstanding, this Agreement shall remain in full
force and effect and such provision or portion shall be deemed omitted and this
Agreement shall be construed as if such invalid or unenforceable provision or
portion had not been contained herein.
28. RELEASE VOID
Neither party shall require release or waivers of any personal rights from
representatives of the other in connection with visits to its premises and both
parties agree that no such releases or waivers shall be pleaded by them in any
action or proceeding.
29. NON-WAIVER
No waiver of the terms and conditions of this Agreement, or the failure of
either party to strictly enforce any term or condition of this Agreement on one
or more occasions shall be construed as a waiver of the same or of any other
term or condition of this Agreement on any other occasion.
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30. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be
governed by the laws of the State of New York, except for its conflicts of law
provisions.
31. TECHNOLOGY OWNERSHIP
Lucent retains sole ownership of the design, assembly, testing rights and
information, regardless of Vendor's contribution to the value of those rights,
design and information. Lucent's sale of the Products to Vendor; Lucent's grant
to Vendor of the right to assemble, package, and sell the Product, conveys no
ownership rights whatsoever in any Product or the Product.
32. NOTICES
All notices, requests, approvals and other communications ("Notices") required
or allowed under this Agreement shall be in writing and addressed as set forth
below or to such other person and/or address as either party may designate by
written Notice pursuant hereto. Such Notices shall be deemed to have been given
when received. Notices may be delivered by hand or sent by prepaid certified or
registered airmail, confirmed facsimile or electronic mail, provided a copy is
also forwarded by prepaid registered airmail.
Lucent Technologies Inc.
1750 E. Golf Road, Suite 500
Schaumburg, IL 60173
Attn: F. R. Bobka
VENDOR:
World Wide Technologies
Director-Business Operations
Julene Tojd
127 Weldon Parkway
St. Louis, MO 63043
33. PURCHASE MONEY SECURITY INTEREST
(a) Subject to Lucent's prior written notice hereunder to Vendor of
Lucent's intent to file purchase money security documents as set forth
in the following and Vendor's failure to resolve any default(s) leading
to such action within ten (10) days of Lucent's notice, Lucent reserves
and Vendor agrees that Lucent shall have a purchase money security
interest in all Products heretofore sold or hereafter sold to Vendor by
Lucent under this Agreement, until any and all payments and charges due
Lucent under this Agreement including, without limitation, shipping and
installation charges, are paid in full. Lucent shall have the right, at
any time during the Term and without notice to Vendor, to file in any
state or local jurisdiction such financing statements (e.g., UCC1
financing statements) as Lucent deems necessary to perfect its purchase
money security interest
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hereunder. Vendor agrees to execute and deliver to Lucent all such
financing statements and other documents as Lucent deems necessary to
perfect its purchase money security interest hereunder. Notwithstanding
the foregoing obligation, Vendor hereby irrevocably appoints Lucent as
its attorney-in-fact for purposes of executing and filing such
financing statements and such other documents prepared by Lucent or its
designated agent for purposes of perfecting Lucent's security interest
hereunder. Vendor also agrees that this Agreement may be filed by
Lucent in any state or local jurisdiction as a financing statement (or
as other evidence of the Lucent's purchase money security interest).
(b) In addition to any other remedy available to Lucent as provided herein,
by common law and by statute, Lucent may exercise its right to reclaim
all Products sold to Vendor pursuant to U.C.C. Section 2-702 or such
other applicable provision as it may exist from state to state, upon
discovery of Vendor's insolvency, provided Lucent demands in writing
reclamation of such Products before ten (10) days after receipt of such
Products by Vendor, or if such 10 day period expires after the
commencement of a bankruptcy case, before twenty (20) days after
receipt of such Products by the Vendor.
34. SETTLEMENT OF DISPUTES
The following procedures shall apply after the Effective Date to any dispute or
disagreement between the parties arising out of this Agreement, provided,
however, that this Clause shall not apply to indemnification claims arising
under this Agreement nor to actions for injunctive relief by one party against
the other.
(a) Either party may give written notification of such dispute or
disagreement to the other party, if the other party is Vendor, to the
President and CEO of Vendor, or if the other party is Lucent, to the
Vice President Sales, ASI Region ("RVP") (together being the Senior
Executive Officers or "SEOs") and
(b) The SEOs shall communicate with each other promptly with a view to
resolving such dispute or disagreement within sixty (60) days of
commencing their negotiations (or such extended period as the SEOs
agree is appropriate in any case).
(c) The giving of any notice regarding any dispute or disagreement
hereunder shall toll the running of all applicable statutes of
limitation until the later of (a) ninety (90) days following the giving
of such notice or (b) thirty (30) days following the termination of
discussions between the SEOs.
35. GRANT OF LICENSE
(a) The license for Licensed Materials with "Tear-Me" or "Tear-Open"
licenses shall be as provided in those licenses and shall be provided
by Vendor in their unopened original package to the end-user.
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(b) For all other Licensed Materials which are provided to Vendor for its
own use, Lucent retains title to the Licensed Materials and grants
Vendor a personal, non-transferable (except as provided in paragraph
(c) below) and non-exclusive license to use Licensed Materials in the
territory on a single designated processor for its own business
operations. The Licensed Materials shall not be copied in whole or in
part except as necessary for authorized use and each copy shall bear
the same copyright and proprietary marks as the original. Vendor shall
not reverse engineer, decompile or disassemble any Software to obtain
corresponding Source Code.
(c) Lucent grants to Vendor the right to sublicense Licensed Materials to
ASI only, provided Vendor obtains a written license agreement from its
sublicensee which provides that it accepts the license under the terms
provided in the GPA between ASI and Lucent.
36. CLAUSE HEADINGS
The clauses headings contained in this Agreement are for the convenience only
and are not intended to affect the meaning or interpretation of this Agreement.
* Confidential treatment will be requested
38. AGREEMENT
(a) The terms and conditions contained in this Agreement supersede all
prior oral or written understandings between the parties and shall
constitute the entire Agreement between them concerning the subject
matter of this Agreement and shall not be contradicted, explained or
supplemented by any course of dealing between Lucent or any of its
Affiliates and Vendor or any of its Affiliates. Lucent's employees,
statements and its advertisements or descriptions other than its
published specifications do not constitute warranties or other
contractual obligations and shall not be relied upon by Vendor as such.
There are no understandings or representations, express or implied, not
expressly set forth in this Agreement. No terms or conditions contained
in any order or other form originated by Vendor shall apply except for
quantity, description, and delivery schedule terms. Notwithstanding
anything herein to the contrary, the parties intend that any agreement
between the parties not otherwise identified herein not related to the
Vendor status shall continue unaffected by this Agreement.
(b) This Agreement shall not be modified or amended except by a writing
signed by the parties to be charged, and no changes or additions to
this Agreement shall be binding upon Lucent unless signed by an
authorized representative of Lucent.
(c) Both parties acknowledge they are sophisticated business entities with
access to legal and financial counsel of their choosing and that each
has had the opportunity to comment
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upon and seek modifications to this Agreement. Therefore, the rule of
law of construction of ambiguities against the drafter shall not apply.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY, INC.
By: /s/ William S. Atkins By: /s/ Mark Catalano
----------------------------- ---------------------------------
Name: W. S. Atkins Name: Mark J. Catalano
--------------------------- -------------------------------
Title: Sales Director Title: Director - Telco Unit
-------------------------- ------------------------------
Date: 4-1-99 Date: 4-5-99
--------------------------- ------------------------------
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* Confidential treatment will be requested
DRAFT - FOR REVIEW ONLY
LUCENT PROPRIETARY
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No. WWTI-1
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* Confidential treatment will be requested
DRAFT - FOR REVIEW ONLY
LUCENT PROPRIETARY
<PAGE> 1
Exhibit 10.16
CONTRACT NO. LSW97CWORLDWT
1
RESELLER CONTRACT
BETWEEN
WORLD WIDE TECHNOLOGY, INC.
AND
LUCENT TECHNOLOGIES, INC.
* Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
<PAGE> 2
CONTRACT NO. LSW97CWORLDWT
2
RESELLER CONTRACT
INDEX
<TABLE>
<CAPTION>
GENERAL PROVISIONS PAGE
<S> <C>
1. RESELLER REPRESENTATION 5
2. SCOPE OF CONTRACT 5
3. DEFINITIONS 6
4. CONFIDENTIALITY 7
5. RELATIONSHIP OF THE PARTIES 7
6. PERIOD OF AGREEMENT 7
7. OBLIGATIONS ASSUMED BY LUCENT 7
8. OBLIGATIONS ASSUMED BY RESELLER 8
9. FORECASTS AND ORDERS 10
10. PRODUCT CHANGES 10
[* Confidential treatment will be requested]
[* Confidential treatment will be requested]
13. BILLING AND PAYMENT 12
14. TITLE AND RISK OF LOSS 13
15. LIMITATION OF LIABILITY 13
16. INSURANCE 14
17. RESELLER 15
</TABLE>
<PAGE> 3
CONTRACT NO. LSW97CWORLDWT
3
<TABLE>
<S> <C>
18. USE OF INFORMATION 15
19. INFRINGEMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS 16
20. DOCUMENTATION 17
[* Confidential treatment will be requested]
22. INDEMNITY BY LUCENT 19
23. TRADEMARKS 19
24. LEGISLATION AND GOVERNMENT REGULATIONS 19
25. TERMINATION OF ORDERS 20
26. TERMINATION OF CONTRACT 20
27. FORCE MAJEURE 21
28. ASSIGNMENT 21
29. SEVERABILITY 22
30. RELEASES VOID 22
31. LIENS 22
32. TAXES 22
33. NONWAIVER 23
34. CHOICE OF LAW 23
35. NOTICES 23
36. DISPUTE RESOLUTION 23
37. OPTION TO EXTEND 24
38. ATTORNEY'S FEES 24
</TABLE>
<PAGE> 4
CONTRACT NO. LSW97CWORLDWT
4
<TABLE>
<S> <C>
39. PARAGRAPH HEADINGS 24
40. ENTIRE CONTRACT 24
[* Confidential treatment will be requested]
</TABLE>
<PAGE> 5
CONTRACT NO. LSW97CWORLDWT
5
This contract is made as of the 15th day of April, 1997, and is between Lucent
Technologies, Inc., ("LUCENT") a Delaware corporation having an office at 1111
Woods Mill Rd., Town & Country, Missouri 63017, and World Wide Technology, Inc.,
("Reseller") a Missouri corporation having an office at 127 Weldon Parkway,
Maryland Heights, Missouri 63043.
WHEREAS, it is the objective of Southwestern Bell Telephone Company that
Minority Business Enterprises ("MBE") be utilized to provide DSX Panels, Central
Office Wire and Cable, Distributing Frame Wire, and Loop Electronic Cabinet
equipment and systems to Southwestern Bell Telephone Company, its affiliates and
subsidiaries (hereinafter collectively referred to as "SWBT"); and
WHEREAS, to that end Request for Quotation identifying such objective was issued
by Lucent to Solicit MBE participation, and a contract between Lucent and SWBT
covering the purchase and sale of such products (the "Lucent/SWBT Contract")
would be assigned to selected MBEs; and
WHEREAS, based on Reseller's response to the Request for Quotation, including
Reseller's price quote, Project Management Plan and Project Financial Plan,
Reseller was one of three MBE's selected in this unique transaction to sell
solely to SWBT within the United States as a means for achieving the above
objective, and the Lucent/SWBT Contract was assigned in part to Reseller for
that purpose.
NOW THEREFORE the parties agree as follows:
1. RESELLER REPRESENTATION
RESELLER REPRESENTS THAT IT IS A RESELLER OF COMMUNICATIONS EQUIPMENT AND
SYSTEMS AND HAS IN PLACE FACILITIES AND AN ORGANIZATION TO PROMOTE AND MARKET
SUCH EQUIPMENT AND SYSTEMS TO SWBT. RESELLER FURTHER REPRESENTS THAT IT HAS
CONSULTED WITH ITS OWN LEGAL COUNSEL IN CONNECTION WITH THIS TRANSACTION, THAT
IT IS FULLY AWARE THAT THE TERMS OF THIS CONTRACT ARE BASED ON ITS RESPONSE TO
THE REQUEST FOR QUOTATION, THAT IT IS AWARE OF THE TERMS AND CONDITIONS OF THE
LUCENT/SWBT CONTRACT, THAT IS HAS CONDUCTED ITS OWN INDEPENDENT REVIEW AND
ANALYSIS OF THIS BUSINESS OPPORTUNITY, AND THAT IT IS AWARE OF THE BUSINESS
RISKS INVOLVED IN THIS ALLIANCE, INCLUDING THE RISK THAT THE NUMBER OF SWBT
ORDERS PURSUANT TO THE LUCENT/SWBT CONTRACT MAY DIFFER FROM THE NUMBER OF SUCH
ORDERS ANTICIPATED BY RESELLER.
2. SCOPE OF CONTRACT
The terms and conditions of this Contract shall apply to transactions in which
LUCENT furnishes those items, [* Confidential treatment will be requested]
<PAGE> 6
CONTRACT NO. LSW97CWORLDWT
6
2. SCOPE OF CONTRACT (CONTINUED)
to Reseller for the sole purpose of selling, leasing or otherwise furnishing
such items to Southwestern Bell Telephone Company, its affiliates and
subsidiaries (hereinafter collectively referred to "SWBT").
Reseller is granted the right to obtain the Products identified in Appendix A,
plus such additional items as LUCENT may from time to time in writing agree to
furnish to Reseller, solely for purposes of selling, leasing or otherwise
furnishing to SWBT. No payment of any fee is required as a condition of such
grant. LUCENT may delete any Products [* Confidential treatment will be
requested] upon thirty (30) days written notice to Reseller.
Reseller agrees that it has no exclusive right to market such items and LUCENT
expressly reserves the right to contract with others to market such items in the
Territory, and to itself engage in such marketing, in competition with Reseller.
3. DEFINITIONS
For the purpose of this Contract, the following terms and their definitions
shall apply:
* Confidential treatment will be requested
(b) "Products": means the hardware [* Confidential treatment will be
requested]
(c) "Territory" means Southwestern Bell Telephone Company, including its
Affiliates and Subsidiaries.
(d) "Drop Shipment" - Products which are ordered from Reseller by SWBT,
which Reseller in turn orders the Product from LUCENT for shipment
directly to SWBT.
(e) "Slow Moving Product": - for any electronic enclosure item or for Any
non electronic enclosure product family that does not turn six (6)
times per twelve (12) month period.
(f) "Non Moving Product": - Any item that shows no activity for at least
six (6) months.
(g) "Obsolete Product": - Any item that will not be ordered due to
engineering changes, market activity or changes in customer
requirements.
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CONTRACT NO. LSW97CWORLDWT
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4. CONFIDENTIALITY
Reseller and LUCENT shall keep this Contract and any order issued hereunder
confidential, except as reasonably necessary for performance thereunder and
except to the extent disclosure may be required by applicable laws or
regulations, in which latter case the party making such disclosure shall
promptly inform the other.
5. RELATIONSHIP OF THE PARTIES
This Contract does not establish a franchise or agency. Reseller shall have no
authority to assume or create obligations on LUCENT's behalf with respect to the
Product or otherwise, and Reseller shall not take any action which has the
effect of creating the appearance of its having such authority. The relationship
of the parties under this Contract shall be and at all times remain one of
independent contractors. All persons furnished by Reseller shall be considered
solely Reseller's employees or agents, and Reseller shall be responsible for
payment of all unemployment, Social Security and other payroll taxes including
contributions from them when required by law.
6. PERIOD OF AGREEMENT
This Contract is for an initial period of three (3) years effective upon being
signed by both parties ("Initial Period"), and shall continue until terminated
by either party upon at least sixty (60) days prior written notice to the other.
The modification or termination of this Contract shall not affect the rights or
obligations of either party under any order accepted by LUCENT before the
effective date of the modification or termination.
7. OBLIGATIONS ASSUMED BY LUCENT
LUCENT shall:
(a) use its best efforts to promote, market and expand the selling or
furnishing of Products to SWBT;
(b) provide or arrange for reasonable amounts of technical assistance and
training with regard to sales and installation of Products;
(c) provide or arrange for in-warranty and out-of-warranty repair services
in accordance with its standard procedures; and
(d) provide additional support services in accordance with LUCENT's
standard offerings.
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CONTRACT NO. LSW97CWORLDWT
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7. OBLIGATIONS ASSUMED BY LUCENT (CONTINUED)
(e) as the parties mutually agree, LUCENT shall make arrangements to
remove obsolete inventory items. LUCENT and Reseller will meet on a
monthly basis to review stocking levels, slow moving items, and
non-moving items for a period of twelve (12) months from contract
award, or until such time that it is determined meetings are no longer
required. Inventory adjustments will be mutually agreed upon at these
meetings.
(f) make arrangements to repurchase and remove inventory held by Reseller
within thirty (30) days upon termination of this Agreement.
(g) provide the necessary training to support Reseller's obligation to
offer technical support to SWBT in the effective use of the Products.
8. OBLIGATIONS ASSUMED BY RESELLER
Reseller shall:
(a) use its best efforts to promote, market and expand selling or
furnishing of Products to SWBT;
(b) develop and maintain a sales organization that is capable of
demonstrating to SWBT the use and capabilities of the Products and
their applications and that actively and effectively obtains orders
from SWBT;
(c) obtain and maintain all government licenses, permits and approvals
which are necessary or advisable for the servicing of this Contract
and comply with all applicable laws and regulations;
(d) refrain from taking any action which would cause LUCENT to be in
violation of any law of any jurisdiction;
(e) promptly inform LUCENT of any facts or opinions likely to be relevant
in relation to marketing of Products including, without limitation,
all suspected Product defects or safety problems and customer
complaints;
(f) provide LUCENT with monthly Point of Sale Reports by Product including
number of units, dollars of sales by SWBT's location, and subsequent
reports each month thereafter before the 15th of the month. Reseller
shall provide such other reports as requested by LUCENT and mutually
agreed to by the parties. LUCENT shall maintain the confidentiality of
all such information between the two companies;
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8. OBLIGATIONS ASSUMED BY RESELLER (CONTINUED)
(g) offer technical support to SWBT in the effective use of the Products,
including providing instructional material furnished by LUCENT, and
with respect to Loop Electronic Cabinets, shall serve as first point
of contact with SWBT for purposes of addressing questions or problems
relating thereto;
(h) resell DSX, DFW, and Bulk Cable exclusively in this Product family
after Reseller's existing stock is depleted, providing [* Confidential
treatment will be requested] and performance meets mutually agreed
upon standards;
(i) participate in reasonable applicable training programs which LUCENT
recommends to support LUCENT Product [Confidential treatment
requested];
* Confidential treatment will be requested
(k) provide, at no charge applicable technical information, data,
technical support or service required by LUCENT for which LUCENT has
provided Reseller the necessary training to fulfill any of its
obligations under an order or this Contract;
(l) maintain adequate inventory levels to satisfactorily meet SWBT's on
job delivery performance requirements;
(m) stock 80-, 90-, and 51-type Electronic Enclosures and configure them
to SWBT's specifications, installing LUCENT and other Original
Equipment Manufactures equipment, test the configured cabinets, pack
and ship Product to requested job site;
(n) stock DSX Panels and subcomponents, assemble components into finished
Product according to SWBT's specifications, test, pack and ship
Product to requested job site;
(o) stock Distributing Frame Wire, pack and ship Product to requested job
site; and
(p) stock Bulk Cable products, cut and reel cable to SWBT's
specifications, pack and ship to requested job site.
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9. FORECASTS AND ORDERS
Upon the execution of this Contract, Reseller agrees to cooperate with LUCENT to
forecast purchases of Product for the period of this Contract by types of
Product. [*Confidential treatment will be requested.] As mutually agreed, per
the definitions in Section 2, for up to six (6) months after receipt of items
purchased [* Confidential treatment will be requested]
any slow, non-moving, or obsolete items may be returned to LUCENT for full
credit.
An order submitted by Reseller shall contain the information necessary for the
furnishing of the Products, including, without limitation, the (1) date of the
order, (2) the shipping destination and (3) reference to any applicable LUCENT
specifications and information specified [* Confidential treatment will be
requested]. Schedules and dates, including shipment dates, for the furnishing of
the Products, must be agreed to by LUCENT prior to its acceptance of the order.
All orders submitted by Reseller shall be deemed to incorporate and be subject
to the terms and conditions of this Contract as well as any supplemental terms
and conditions agreed to by authorized representatives of the parties in
writing. LUCENT RESERVES THE RIGHT TO PLACE ANY ORDER ON HOLD, DELAY SHIPMENT,
AND/OR REJECT ANY ORDER DUE TO BUT NOT LIMITED TO, INSUFFICIENT CREDIT LIMITS.
LUCENT MAY REJECT AN ORDER FOR ANY REASON IT DEEMS JUSTIFIABLE.
10. PRODUCT CHANGES
LUCENT may, at any time without advising Reseller, make changes in Product, or
modify the drawings and specifications relating thereto, or substitute Product
of later design to fill an order, provided the changes, modifications, or
substitutions under normal and proper use do not impact upon form, fit or
function or are recommended to enhance safety.
LUCENT may use either new, reconditioned, refurbished or remanufactured Products
or parts in the furnishing of Product spares, replacement parts or repairs under
this Contract. Any difference in the price applicable to, or the time required
for performance of, a purchase order resulting from changes, modification or
substitutions specified in such notice to Reseller shall be equitably adjusted
and the purchase order shall be modified in writing accordingly. The Reseller
shall notify LUCENT in writing of any increase in the price within thirty (30)
days after receipt by Reseller of such notice to make changes. LUCENT shall
purchase from Reseller the obsolete and discontinued items which are the result
of the Product Change.
* Confidential treatment requested.
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CONTRACT NO. LSW97CWORLDWT
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* Confidential treatment will be requested
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CONTRACT NO. LSW97CWORLDWT
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* Confidential treatment will be requested
13. BILLING AND PAYMENT
(a) Invoices for Products will be sent upon shipment, or as soon
thereafter as practicable. LUCENT may make partial shipments of
Reseller's orders. Such partial shipments shall be separately invoiced.
(b) Invoices for services will be sent as services are performed or
as soon thereafter as practicable.
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CONTRACT NO. LSW97CWORLDWT
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13. BILLING AND PAYMENT (CONTINUED)
(c) Reseller shall pay the invoiced amount within thirty (30) days from
the date of invoice for replenishment order and ninety (90) days for
the initial stocking order. Delinquent payments shall be subject to a
late payment charge at the rate of one and one-half per cent (1 1/2%)
per month or the maximum legal rate, whichever is lower. Any disputed
items which LUCENT determines are not valid are due for payment based
upon the original invoice date and will also be subject to a
retroactive late payment charge based upon such original invoice date.
The amount of credit or terms of payment may be changed or credit
withdrawn by LUCENT at any time. Each shipment shall constitute an
independent transaction, and Reseller shall pay for same in accordance
with the specified payment terms.
Reseller shall notify LUCENT of any claim on an invoice within two (2)
months from the date of the invoice.
(d) In the event that Reseller becomes delinquent in payment, LUCENT
shall have the right to immediately terminate this Contract and to
enter upon and remove from the premises of Reseller all unsold Products
for which LUCENT has not received payment.
14. TITLE AND RISK OF LOSS
Title (except as provided in the paragraph USE OF INFORMATION), and risk of loss
of or damage to Products shall pass to Reseller upon delivery to the Reseller.
Reseller shall notify LUCENT promptly of any claim with respect to loss or
damage which occurs while LUCENT has the risk of loss and shall cooperate in
every reasonable way to facilitate the settlement of any claim. For the purpose
of this clause, "delivery" shall mean the point in which LUCENT or LUCENT's
supplier or agent turns over possession of the Products to Reseller, Reseller's
employees, Reseller's designated carrier, Reseller's warehouse, or mutually
agreed upon facility.
15. LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, LUCENT AND ITS SUPPLIERS SHALL IN
NO EVENT BE LIABLE TO RESELLER, ITS CUSTOMERS, OR TO ANY OTHER PERSON OR COMPANY
USING ANY PRODUCT, OR SERVICE SUPPLIED UNDER THIS CONTRACT, OR TO ANY PERSON OR
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CONTRACT NO. LSW97CWORLDWT
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15. LIMITATION OF LIABILITY (CONTINUED)
COMPANY TO WHOM RESELLER FURNISHES A PRODUCT OR SERVICE, FOR LOSS OF TIME,
INCONVENIENCE, LOSS OF USE OF ANY PRODUCTS, OR PROPERTY DAMAGE CAUSED BY ANY
PRODUCTS OR SERVICES OR THEIR FAILURE TO WORK, OR FOR ANY OTHER INDIRECT,
SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF
THIS CONTRACT OR AN OBLIGATION RESULTING THEREFROM, OR THE USE OR PERFORMANCE OF
ANY PRODUCTS WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF LIABILITY OR
OTHERWISE. EXCEPT FOR PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS AS PROVIDED IN
THE CLAUSE "INDEMNITY BY LUCENT," LUCENT's OR ITS SUPPLIER'S ENTIRE LIABILITY
FOR ANY CLAIM OR LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER SHALL IN NO
EVENT EXCEED, AT LUCENT's OPTION, THE REPAIR OR REPLACEMENT COST, LICENSE FEE OR
PURCHASE PRICE OF THE SERVICE OR ITEM WHICH DIRECTLY GIVES RISE TO THE CLAIM. NO
ACTION OR PROCEEDING AGAINST LUCENT OR ITS SUPPLIER MAY BE COMMENCED MORE THAN
THIRTY (30) MONTHS AFTER THE PRODUCTS ARE INITIALLY SHIPPED. THIS PARAGRAPH
SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
16. INSURANCE
Reseller shall maintain and cause its agents to maintain during the term of the
Contract:
(a) Worker's Compensation insurance prescribed by the law of the state
in which Reseller's obligations under this Contract are performed,
(b) employer's liability insurance with limits of at least $100,000
each occurrence, and
(c) comprehensive general liability insurance, and comprehensive
automobile liability insurance if the use of motor vehicles is
required, each with limits of at least $250,000 for bodily injury,
including death, to any one person and $1,000,000 for any one
occurrence, and $100,000 for each occurrence of property damage.
Reseller agrees that Reseller, Reseller's insurers and anyone claiming
by, through, under or in Reseller's behalf shall have no claim, right
of action or right of subrogation against Seller based on any loss or
liability insured against under the foregoing insurance. Upon request
of LUCENT, Reseller and Reseller's agents shall furnish prior to the
commencement of this Contract or any time thereafter, certification or
adequate proof of the foregoing insurance. Certificates furnished by
Reseller and Reseller's agents shall contain a clause stating that
Seller is to be notified in writing at least ten (10) days prior to
cancellation of or any material change in this policy. Reseller agrees
to indemnify
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CONTRACT NO. LSW97CWORLDWT
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16. INSURANCE (CONTINUED)
and save harmless Seller from and against any losses, damages, claims,
demands, suits and liabilities (including reasonable attorney's fees)
that arise out of or result from injuries or death to persons or damage
to property caused by Reseller's acts or omissions, or those of persons
furnished by Reseller or in any way arising out of the Reseller's
performance of this Contract; or assertions made by persons furnished
by Reseller under Worker's Compensation or similar acts; or claims,
demands, suits, liabilities or costs arising out of or in any way
relating to the Reseller's performance or failure of performance under
this Contract. Reseller agrees to defend LUCENT at LUCENT's request
against any such claims, demands or suits. In no event shall Reseller's
liability exceed one million dollars ($1 million) for any one
occurrence.
17. RESELLER
LUCENT agrees to notify Reseller within a reasonable time of any written claims
or demands against LUCENT for which Reseller is responsible under this
paragraph.
18. USE OF INFORMATION
(a) The term "Information" means all documentation (other than
promotional materials), technical information, confidential business
information, in whatever form recorded, which bears a legend
restricting its use or dissemination or which either party otherwise
indicates by written designation is confidential, and furnishes to the
other, and all copies thereof including translations, compilations and
partial copies. All Information which one party furnishes to the other
under or in contemplation of this Contract, and all related
documentation, shall remain the property of the furnishing party.
(b) Unless the party furnishing Information consents in writing, the
receiving party shall (i) hold the Information in confidence, except
for any part of such Information which is known to it free of any
obligation to keep in confidence or which is now generally known to the
public or which later becomes generally known to the public through
acts not attributable to such receiving party, or (ii) not reproduce or
copy such Information, in whole or in part, except as necessary for use
as authorized in this paragraph 16, (iii) if reproduction is permitted
include any copyright and proprietary notices on all such copies and
mark all media containing such copies with a warning that the
Information is subject to restrictions contained in a Contract with the
furnishing party and that such Information is the property of the
furnishing party, and (iv) return or destroy such Information when no
longer needed or, if such Information is recorded on an erasable
storage medium, erase it.
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CONTRACT NO. LSW97CWORLDWT
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18. USE OF INFORMATION (CONTINUED)
(c) Reseller may use such Information only to evaluate, order, market,
or provide Service on Product.
19. INFRINGEMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS
In the event of any claim, action, proceeding or suit by a third party against
Reseller alleging an infringement of any United States patent, United States
copyright, or United States trademark, or a violation in the United States of
any trade secret or proprietary rights by reason of the use or sale, in
accordance with LUCENT's specifications, of any Product furnished by LUCENT to
Reseller under this Contract, LUCENT at its expense, will defend Reseller
subject to the conditions and exceptions stated below. LUCENT will reimburse
Reseller for any cost, expense or attorney's fee, incurred by LUCENT's written
request or authorization, and will indemnify Reseller against any liability
assessed against Reseller by final judgment on account of such infringement or
violation arising out of such use.
If Reseller's use or sale shall be enjoined or in LUCENT's opinion is likely to
be enjoined, LUCENT will, at its expense and at its option, either (1) replace
the enjoined Product furnished pursuant to this Contract with a suitable
substitute free of any infringement, (2) modify it so that it will be free of
the infringement, or (3) procure for Reseller or Reseller's customer a license
or other right to use it, (4) procure for Reseller a right to sell it. If none
of the foregoing options is practical, LUCENT will remove the enjoined Product
and refund to Reseller any amounts paid to LUCENT less a reasonable charge for
any actual period of use.
Reseller shall give LUCENT prompt written notice of all such claims, actions,
proceeding or suits alleging infringement or violation and LUCENT shall have
full and complete authority to assume the sole defense thereof, including
appeals, and to settle same. Reseller shall, upon LUCENT's request and at
LUCENT's expense, furnish all information and assistance available to Reseller
and cooperate in every reasonable way to facilitate the defense and/or
settlement of any such claim, action, proceeding or suit.
No undertaking of LUCENT under this clause shall extend to any such alleged
infringement or violation to the extent that it: (1) arises from adherence to
design modifications, specifications, drawings, or written instructions which
LUCENT is directed by Reseller to follow, but only if such alleged infringement
or violation does not reside in corresponding commercial Product of LUCENT's
design or selection; or (2) arises from adherence to instructions to apply
Reseller's trademark, trade name, or other company identification; or (3)
resides in a Product which is not LUCENT's origin and which is furnished by
Reseller to LUCENT for use under this Contract; or (4) relates to uses of
Product provided by LUCENT in combinations with other Product, furnished either
by LUCENT or others, which combination was not installed, recommended or
otherwise approved by LUCENT. In the foregoing cases number (1) through (4),
Reseller
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CONTRACT NO. LSW97CWORLDWT
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19. INFRINGEMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS
(CONTINUED)
will defend and save LUCENT harmless, subject to the same terms and conditions
and exceptions stated above with respect to LUCENT's rights and obligations
under this clause. Provided that with respect to (4) above, Reseller will not be
obligated to indemnify LUCENT when the combination was not installed,
recommended, or otherwise approved by Reseller.
The liability of LUCENT and Reseller with respect to any and all claims,
actions, proceedings, or suits by third parties alleging infringement of
patents, trademarks, or copyrights or violation of trade secrets or proprietary
rights because of, or in connection with, any items furnished pursuant to this
Contract shall be limited to the specific undertakings contained in this clause.
20. DOCUMENTATION
LUCENT will make available to Reseller, at no additional charge, documentation
relating to Product which, at the time of sale, is customarily provided by
LUCENT to its customer.
* Confidential treatment will be requested
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CONTRACT NO. LSW97CWORLDWT
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* Confidential treatment will be requested
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CONTRACT NO. LSW97CWORLDWT
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22. INDEMNITY BY LUCENT
LUCENT will indemnify and save harmless Reseller from any loss or damages
(including reasonable attorney's fees) incurred by Reseller because of claims,
suits, or demands of third parties for personal injury or tangible property
damage to the extent such loss or damage is caused by or results from defective
Products manufactured by LUCENT provided: 1.) Reseller promptly notifies LUCENT
in writing of any suits, claims or demands against Reseller for which LUCENT is
responsible under this indemnity, 2.) Reseller gives LUCENT full opportunity and
authority to assume the sole defense of and settle such suits, 3.) Reseller
furnishes to LUCENT upon request all information and assistance available to
Reseller for defense against any such suit, claim or demand and 4.) Reseller
will not be obligated to indemnify LUCENT when the combination is not installed,
recommended, or otherwise approved by Reseller. LUCENT's liability under this
indemnity shall in no event exceed two million dollars ($2,000,000) for any one
occurrence. This indemnity is in lieu of all obligations of LUCENT, express or
implied, in law or in equity, to indemnify Reseller (except pursuant to the
clause INFRINGEMENT OF PATENTS, TRADEMARKS, AND COPYRIGHTS, AND THE CLAUSE
LEGISLATION AND GOVERNMENT REGULATIONS).
23. TRADEMARKS
Reseller will not, without LUCENT's express written permission, use in
marketing, advertising, publicity, or otherwise any trade name, trademark, trade
device, service mark, symbol, code or specification or any abbreviation,
contraction, or simulation thereof ("Mark") of the LUCENT Companies nor shall
Reseller claim any ownership therein. Reseller shall not remove, deface, alter
or otherwise obscure any Mark of the LUCENT Companies which is on Product sold
under this Contract nor shall Reseller place any Mark of any company on any such
Product; provided however that Reseller, consistent with the provisions of this
Clause, may place Reseller's Mark on the Product as provided to SWBT. Any such
usage shall inure to the benefit of the LUCENT Company Mark owner. As used in
this paragraph, the term "LUCENT Company" means LUCENT and its associated
companies.
24. LEGISLATION AND GOVERNMENT REGULATIONS
Reseller shall at all times comply with all applicable requirements of federal,
state and local laws, ordinances, administrative rules and regulations. Reseller
shall contractually require its subcontractors, distributors and agents to
comply with all such legal requirements as well, and Reseller shall indemnify,
defend and hold harmless LUCENT for any damages, losses, costs, or penalties
incurred by LUCENT by virtue of such non-compliance by Reseller or its
subcontractors, distributors or agents. If requested by LUCENT, Reseller shall
advise LUCENT in writing of the identity and addresses of its subcontractors,
distributors and agents in connection with the Product.
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CONTRACT NO. LSW97CWORLDWT
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24. LEGISLATION AND GOVERNMENT REGULATION (CONTINUED)
Likewise, LUCENT shall at all times comply with requirements of federal, state
and local laws, ordinances, administrative rules and regulations as are
applicable to LUCENT. LUCENT shall indemnify, defend and hold harmless Reseller
for any damages, losses, costs or penalties incurred by Reseller by virtue of
such non-compliance by LUCENT or its subcontractors, distributors, agent or
employees.
25. TERMINATION OF ORDERS
Reseller at any time may issue a "Hold" Order or cancel, terminate, or suspend
performance with respect to any Order placed hereunder, in whole or in part,
without LUCENT's prior written consent. Reseller shall be obligated to indemnify
LUCENT against the loss associated with any such action by paying termination
charges calculated in accordance with the following principles: (1) as to
Product delivered or services performed, Reseller shall be liable for the full
price; (2) as to Product ready for delivery, Reseller shall be liable for an
amount not to exceed the price for the Product; (3) as to work in process,
Reseller shall be liable for an amount not to exceed the sum of LUCENT's sunk
costs, a reasonable allocation of LUCENT's general and administrative expenses
and an appropriate profit factor. LUCENT shall make a reasonable attempt to
minimize the loss associated with Reseller's "Hold" Order or cancellation or
termination and, if requested, LUCENT shall substantiate the termination charges
which Reseller is obligated to pay and LUCENT's efforts to mitigate those
charges with reasonable proof.
26. TERMINATION OF CONTRACT
Either party may terminate this Contract without cause upon sixty (60) days
written notice to the other party given at any time. Upon termination of this
Contract without cause pursuant to this paragraph neither party shall be liable
to the other, either for compensation of for damages of any kind or character
whatsoever, whether on account of the loss by LUCENT or Reseller of present or
prospective profits on sales or anticipated sales, or expenditures, investments
or commitments made in connection therewith or in connection with the
establishment, development or maintenance of Reseller's business, or on account
of any other cause or thing whatsoever, provided that termination shall not
prejudice or otherwise affect the rights or liabilities of the parties with
respect to Products theretofore sold hereunder, or any indebtedness then owing
by either party to the other.
Notwithstanding any other terms or provisions of this Contract or other
arrangements agreed to by the parties, termination of this Contract shall
automatically accelerate the due date of all invoices for Product such that they
shall become immediately due and payable on the effective date of termination.
Upon notice of termination, LUCENT shall be entitled to reject all or a part of
any orders received from Reseller after notice but prior to the effective date
of termination. Notwithstanding any credit terms made available to
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26. TERMINATION OF CONTRACT (CONTINUED)
Reseller prior to that time, any Product shipped after notice of termination and
prior to effective date of termination shall be paid for by certified or
cashier's check prior to shipment. Upon termination or non-renewal of this
Contract, Reseller shall immediately:
(a) Discontinue any and all use of Marks as defined in the paragraph
TRADEMARKS) except to identify the Product, including but not limited
to such use in advertising or business Product of Reseller;
(b) Remove and return to LUCENT or destroy at LUCENT's request, any
and all promotional material supplied without charge by LUCENT;
(c) Return, upon request, all LUCENT confidential information except
that which LUCENT agrees is necessary to operate and maintain
previously furnished Product;
(d) Cease holding itself out, in any other manner, as a Reseller of the
Products; and
(e) Notify and arrange for all publishers and others who may identify,
list or publish Reseller's name as a Reseller of the Products
(including but not limited to publishers of telephone directories,
yellow pages and other business directories) to discontinue such
listings.
The respective obligations of Reseller and LUCENT under this contract which by
their nature would continue beyond the termination, cancellation or expiration
hereof, shall survive termination, cancellation or expiration hereof.
27. FORCE MAJEURE
Except with respect to Reseller's obligation to make timely payments, neither
party shall be held responsible for any delay or failure in performance to the
extent that such delay or failure is caused by fires, strikes, embargoes,
explosions, earthquakes, floods, wars, water, the elements, labor disputes,
government requirements, civil or military authorities, acts of God or by the
public enemy, inability to secure raw materials or transportation facilities,
acts or omissions of carriers or suppliers or other causes beyond its control
whether or not similar to the foregoing.
28. ASSIGNMENT
Reseller shall not assign any right or interest under this Contract or delegate
any work or other obligation to be performed or owned by Reseller under this
Contract without the
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28. ASSIGNMENT (CONTINUED)
prior to written consent of LUCENT. Any attempted assignment or delegation in
contravention of the above provision shall be void and ineffective.
LUCENT has the right to assign this Contract and to assign its rights and
delegate its duties under this Contract, in whole or in part, at any time and
without Reseller's consent, to any corporate parent, to any present or future
affiliate or subsidiary of LUCENT, or to any combination of the foregoing.
LUCENT shall give Reseller prompt written notice of the assignment. The
assignment of any rights and the delegation of any duties shall be subject to
the provisions, terms and conditions of this Contract.
29. SEVERABILITY
If any of the provisions of this Contract shall be invalid or unenforceable such
invalidity or unenforceability shall not invalidate or render unenforceable the
entire Contract, but rather the entire Contract shall be construed as if not
containing the particular invalid or unenforceable provision or provisions, and
the rights and obligations of each party shall be construed and enforced
accordingly. However, in the event such provision is considered an essential
element of this Contract, the parties shall promptly negotiate a replacement
thereof.
30. RELEASES VOID
Neither party shall require release or waivers of any personal rights form
representatives of the other in connection with visits to its premises and both
parties agree that no such releases or waivers shall be pleaded by them in any
action or proceeding.
31. LIENS
All Products provided by LUCENT to Reseller shall be free of all liens and
encumbrances.
32. TAXES
The prices set forth in Appendix A do not include applicable taxes and such
prices shall not be subject to change as a result of any change in Reseller's or
LUCENT's tax liabilities. To the extent sales taxes and or any other tax are
applicable to sales made by Reseller to SWBT, the collection or other processing
of such tax shall be the responsibility of Reseller.
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33. NONWAIVER
No course of dealing, course of performance or failure of either party strictly
to enforce any term, right or condition of this Contract shall be construed as a
waiver of any term, right or condition.
34. CHOICE OF LAW
The construction, interpretation and performance of this Contract shall be
governed by the laws of the State of Missouri.
35. NOTICES
All notices under this Contract shall be in writing and shall be given by
telegram or similar communication, or by certified or registered mail, addressed
to the addresses set forth at the beginning of this Contract or to such other
address as either party may designate by notice pursuant hereto. Such notices
shall be deemed to have been given when received.
36. DISPUTE RESOLUTION
A. Any controversy or claim, whether based on contract, tort, strict liability,
fraud, misrepresentation, or any other legal theory, related directly or
indirectly to this Contract ("Dispute") shall be resolved solely in accordance
with the terms of this Section 36.
B. If the Dispute cannot be settled by good faith negotiation between the
parties, Lucent and you will submit the Dispute to non-binding mediation. If
complete agreement cannot be reached within thirty (30) days of submission to
mediation, any remaining issues will be resolved by binding arbitration in
accordance with Sections 36C and 36D, except that Lucent reserves the right to
obtain an injunction in court to prevent you use of the Products in violation of
this Contract. The Federal Arbitration Act, 9 U.S.C. Sections 1 to 15, not state
law, will govern the arbitrability of all Disputes.
C. A single arbitrator who is knowledgeable in the telecommunications field or
in commercial matters will conduct the arbitration. The arbitrator's decision
and award will be final and binding and may be entered in any court with
jurisdiction. The arbitrator will not have authority to modify or expand any of
the provisions of this Agreement (e.g., Section 14 The Limitation of Liability
provision of this Agreement).
D. Any mediation or arbitration commenced pursuant to this Agreement will be
conducted under the then current rules of the alternate dispute resolution
(ADR) firm selected by the parties. If the parties are unable to agree on an
ADR firm, the parties will
<PAGE> 24
CONTRACT NO. LSW97CWORLDWT
24
36. DISPUTE RESOLUTION (CONTINUED)
conduct the mediation and, if necessary, the arbitration under the then current
rules and supervision of the American Arbitration Association (AAA). Lucent and
you will each bear its own attorneys' fees associated with the mediation and, if
necessary, the arbitration. Lucent and you will pay all other costs and expenses
of the mediation/arbitration as the rules of the selected ADR firm provide.
37. OPTION TO EXTEND
Subject to the conditions stated herein, Reseller will have the right to extend
the period specified in the clause herein entitled Period of Agreement for
twenty four (24) months by giving LUCENT written notice at least thirty (30)
days' prior to the end of this Contract's Initial Period. Within ten (10) days
of the date of Buyer's notice to extend the Initial Period, LUCENT will notify
Reseller in writing whether LUCENT proposes to increase its prices under this
Contract. If it does and the parties fail to agree on the increased prices
within twenty (20) days after the date of LUCENT's notice to Reseller, then
Reseller's notice to extend will be considered withdrawn and the Contract shall
come to a conclusion in accordance with its terms and prices for outstanding
Orders will not be revised.
38. ATTORNEY'S FEES
If legal action is commenced to enforce the performance of any part of this
Contract, the prevailing party shall be paid by the other party reasonable
attorney's fees and expenses.
39. PARAGRAPH HEADINGS
The paragraph headings contained in this Contract are for convenience only and
are not intended to affect the meaning or interpretation of this Contract.
40. ENTIRE CONTRACT
The terms and conditions contained in this Contract supersede all prior oral or
written understandings between the parties and shall constitute the entire
Contract between them concerning the subject matter of this Contract and shall
not be contradicted, explained or supplemented by any course of dealing between
LUCENT or any of its affiliates and
<PAGE> 25
CONTRACT NO. LSW97CWORLDWT
25
40. ENTIRE CONTRACT (CONTINUED)
Reseller or any of its affiliates, LUCENT's employees' statement and its
advertisements or descriptions, other than its Published specifications, do not
constitute warranties or other contractual obligations and shall not be relied
upon by Reseller as such. There are no understandings or representations,
express or implied, not expressly set forth in this Contract. No terms or
conditions contained in any order or other form originated by Reseller shall
apply except for quantity, description, and delivery schedule terms. This
contract shall not be modified or amended except by a writing signed by the
party to be charged, and no changes or additions to this Contract shall be
binding upon LUCENT unless signed by an authorized representative of LUCENT.
Lucent Technologies, Inc. World Wide Technology, Inc.
By: /s/ Beverly J. Harris By: /s/ David Steward
--------------------------------- ---------------------------------
Typed Name: Beverly J. Harris Typed Name: David Steward
Title: Business Management Director Title: President-CEO
Date: April 15, 1997 Date: 4/15/97
------------------------------- -------------------------------
<PAGE> 26
LUCENT TECHNOLOGIES PROPRIETARY
1
* Confidential treatment will be requested
<PAGE> 27
LUCENT TECHNOLOGIES PROPRIETARY
2
* Confidential treatment will be requested
<PAGE> 28
LUCENT TECHNOLOGIES PROPRIETARY
3
* Confidential treatment will be requested
<PAGE> 29
LUCENT TECHNOLOGIES PROPRIETARY
* Confidential treatment will be requested
4
<PAGE> 30
LUCENT TECHNOLOGIES PROPRIETARY
* Confidential treatment will be requested
5
<PAGE> 31
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 32
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 33
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 34
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 35
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 36
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 37
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 38
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 39
Contract LSW97CWORLDT
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 40
Contract LSW97CWORLDT
*Confidential treatment will be requested.
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 41
Contract LSW97CWORLDT
*Confidential treatment will be requested.
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 42
Contract LSW97CWORLDT
*Confidential treatment will be requested.
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees of the
parties hereto only and is not for general distribution within or outside
their respective companies.
<PAGE> 1
Ex. 10.17
PRODUCT RESALE AGREEMENT
BETWEEN
LUCENT TECHNOLOGIES INC.
AND
WORLD WIDE TECHNOLOGIES INC.
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
Page 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. SCOPE OF AGREEMENT....................................................4
2. DEFINITIONS...........................................................5
3. CONFIDENTIALITY.......................................................5
4. RELATIONSHIP OF THE PARTIES...........................................6
5. TERM..................................................................6
6. OBLIGATIONS ASSUMED BY LUCENT TECHNOLOGIES............................6
7. OBLIGATIONS ASSUMED BY VENDOR.........................................6
8. RECORDS AND AUDITS....................................................7
9. FORECASTS AND ORDERS..................................................8
10. PRODUCT CHANGES.......................................................8
11. PRODUCT NAME CHANGE...................................................8
[* Confidential treatment will be requested]
13. INVOICING.............................................................9
14. DELIVERY, TITLE AND RISK OF LOSS.....................................10
15. INSURANCE............................................................10
16. USE OF INFORMATION...................................................12
17. INFRINGEMENT.........................................................12
[* Confidential treatment will be requested]
20. TRADEMARKS...........................................................15
</TABLE>
Lucent and Six R Proprietary
<PAGE> 3
Page 3
<TABLE>
<S> <C>
21. LEGISLATION AND GOVERNMENTAL REGULATIONS.............................15
22. TERMINATION OF ORDERS................................................15
23. TERMINATION OF AGREEMENT.............................................16
24. SURVIVAL OF OBLIGATIONS..............................................17
25. FORCE MAJEURE........................................................17
26. ASSIGNMENT...........................................................19
27. SEVERABILITY.........................................................19
28. RELEASE VOID.........................................................19
29. NON-WAIVER...........................................................19
30. CHOICE OF LAW........................................................19
31. TECHNOLOGY OWNERSHIP.................................................19
32. NOTICES..............................................................20
33. PURCHASE MONEY SECURITY INTEREST.....................................20
34. SETTLEMENT OF DISPUTES...............................................21
35. GRANT OF LICENSE.....................................................21
36. PARAGRAPH HEADINGS...................................................22
[Confidential treatment requested]
38. ENTIRE AGREEMENT.....................................................22
[Confidential treatment requested]
</TABLE>
Lucent and Six R Proprietary
<PAGE> 4
Page 4
This Product Resale Agreement is made by and between World Wide Technologies
Inc., a Missouri corporation with offices at 127 Weldon Parkway, St. Louis,
Missouri ("Vendor") and Lucent Technologies Inc., a Delaware corporation with
its principal place of business at 600 Mountain Avenue, Murray Hill, New Jersey
("Lucent").
WHEREAS, Lucent desires to sell certain 5ESS (R) electronic switch system
apparatus [* Confidential treatment will be requested] ("Product(s)") and is
desirous of having another company stock and furnish equipment to Bell Atlantic
Corporation ("Bell Atlantic"); and
WHEREAS, Vendor represents that it is a reseller of telecommunications equipment
and has in place the facilities and organization to stock and furnish such
equipment to Bell Atlantic; and
WHEREAS, Lucent believes that Bell Atlantic desires to make purchases of
Product(s) from a certified Minority Owned Business ("BE"); and
WHEREAS, Vendor represents and warrants that it is a certified MBE and desires
to purchase Product(s) for the sole purpose of reselling such Product(s) to Bell
Atlantic;
NOW THEREFORE the parties agree as follows:
1. SCOPE OF AGREEMENT
(a) The terms and conditions of this Agreement shall apply to transactions in
which Lucent furnishes Product(s) to Vendor so that Vendor may furnish such
Product solely to and for Bell Atlantic.
(b) In consideration of the covenants by Vendor contained herein, Vendor is
granted the right to obtain the Products [* Confidential treatment will be
requested] plus such additional items as Lucent may from time to time in writing
agree to furnish to Vendor, solely for the purpose of selling, or otherwise
furnishing Product to Bell Atlantic. Vendor shall only sell or otherwise furnish
Product to Bell Atlantic against Bell Atlantic orders placed with Vendor.
Products purchased by Vendor from Lucent pursuant to this Agreement shall not be
resold, assigned or delivered to any other person or entity other than Bell
Atlantic and are sold solely on the representation that such purchases are
related to the sale and delivery of Product to Bell Atlantic. Any Products
Vendor desires to purchase for work competitively awarded by Bell Atlantic shall
be purchased through other distribution channels or as may be mutually agreed by
the parties.
(c) Vendor is also a participant in Lucent's Value Added Reseller ("VAR")
program and acknowledges and agrees that in performing for and on behalf of Bell
Atlantic, Vendor is not participating in the VAR program and that any purchases
for or on behalf of Bell Atlantic hereunder shall not be counted towards any
awards, discounts, credits or minimum purchase commitments as may exist under
the VAR program. Vendor agrees that it shall not make any claim for any such
benefits for the VAR program for any sales, deliveries or efforts hereunder.
Lucent and Six R Proprietary
<PAGE> 5
Page 5
(d) VENDOR AGREES THAT THE TERMS AND CONDITIONS OF PARAGRAPHS 1(a) THROUGH 1(c)
ARE MATERIAL TO THE AGREEMENT AND ANY BREACH THEREOF BY VENDOR SHALL BE A
MATERIAL BREACH AND CAUSE FOR TERMINATION AS PROVIDED HEREIN.
(e) No payment of any fee is required as a condition of such grant. Lucent may,
without the consent of Vendor, delete or add any Product available to Vendor.
Lucent agrees to provide notice to Vendor in the event such additions and
deletions to the Products available hereunder.
(f) Vendor acknowledges that this Agreement does not confer upon it an exclusive
right to market Product or any other items and Lucent expressly reserves the
right to contract with others to market Product or any other items to Bell
Atlantic, and to itself engage in such marketing, in competition with Vendor.
2. DEFINITIONS
For the purposes of this Agreement, the following terms and their definitions
shall apply.
a) "Documentation" shall mean materials useful in connection with the Product.
b) "Product" shall mean those Lucent Products defined above and sold or
delivered to Vendor [* Confidential treatment will be requested]
c) "Bell Atlantic" shall mean Bell Atlantic Corporation as it exists on the
day of this Agreement and its Affiliate(s) in the domestic United States
which are formally authorized by Bell Atlantic to purchase Products from
Lucent.
d) "Licensed Material" shall mean Software in object code form for which
Lucent has the right to grant licenses or sublicenses for use by Bell
Atlantic. Licensed Material also includes all documentation associated with
the Software which is reasonably necessary to enable Bell Atlantic to
operate, administer and maintain the system for which such Software is
licensed. No license to Source Code is granted hereunder.
e) "Software" shall mean a stored program in object code form consisting of a
set or sets of logical instructions and tables of information which guide
the functioning of a processor, but the term "Software" does not mean or
include Firmware.
f) "Firmware" shall mean hardware or other medium containing a pattern of bits
representing a Software program.
g) "Source Code" shall mean any version of SOFTWARE incorporating, high-level
or assembly language that generally is not directly executable by a
processor.
3. CONFIDENTIALITY
Lucent and Six R Proprietary
<PAGE> 6
Page 6
Vendor and Lucent shall keep this Agreement and any order issued hereunder
confidential, except as reasonably necessary for performance thereunder and
except to the extent disclosure may be required by applicable laws or
regulations, in which latter case the party making such disclosure shall
promptly inform the other, prior to making such disclosure.
4. RELATIONSHIP OF THE PARTIES
The relationship of the parties under this Agreement shall be and at all times
remain one of independent contractors and shall not create the relationship of
franchisor and franchisee, joint venturers or principal and agent. This
Agreement does not establish a franchise or agency. Vendor is not paying Lucent
any franchise fee pursuant to this Agreement. Vendor shall not have authority to
assume or create obligations on Lucent's behalf to the Products furnished by
Lucent hereunder or otherwise, and Vendor shall not take any action which has
the effect of creating the appearance of having such authority.
All persons employed by Vendor shall be considered solely Vendor's employees or
agents, and Vendor shall be responsible for payment of all unemployment, Social
Security, and other payroll taxes including contributions from them when
required by law.
5. TERM
This Agreement is effective upon signature of the last party, and except as
otherwise provided herein, shall continue in effect for a period of one (1)
year. The term of this Agreement may be extended for one (1) year periods by
mutual Agreement of the parties. The modification, termination or expiration of
this Agreement shall not affect the rights or obligations of either party under
any order accepted by Lucent before the effective date of the modification,
termination or expiration.
6. OBLIGATIONS ASSUMED BY LUCENT TECHNOLOGIES
Lucent Technologies shall:
(a) make available to Vendor Products as may be changed from time to time;
(b) provide or arrange for reasonable amounts of technical assistance. Lucent
will make training available in accordance with its standard terms and
conditions. Tuition and fees for such training shall be as advertised and
available from Lucent. Training will be provided at Lucent's location(s) which
normally provide(s) such training unless otherwise mutually agreed in writing.
In addition to tuition fees, Vendor will bear all related lodging and
transportation expenses for its employees taking the training. If Vendor
requests additional technical assistance or training, Lucent will provide or
arrange for it upon such terms, conditions, and prices as the parties shall
mutually agree upon.
7. OBLIGATIONS ASSUMED BY VENDOR
Vendor shall:
(a) obtain and maintain all government licenses, permits and approvals which
are necessary and advisable for the implementation of this Agreement and
comply with all applicable laws and regulations;
Lucent and Six R Proprietary
<PAGE> 7
Page 7
(b) refrain from taking any action which would cause Lucent to be in violation
of any law of any jurisdiction;
(c) promptly inform Lucent of any facts or opinions likely to be relevant in
relation to marketing of Products including, without limitation, all suspected
product defect safety problem or Bell Atlantic complaints;
(d) provide Lucent with semi-annual summaries of sales of each Product including
number of units and dollars of sales to Bell Atlantic by Bell Atlantic order
number with monthly breakdowns. Lucent agrees to maintain the confidentiality of
such information between the two companies.
(e) on each anniversary of this Agreement, or as may be requested from time to
time, provide Lucent with a written certification by the Vendor or other
evidence as may be requested, that purchases of Product under this Agreement are
solely for the purpose of sale of Product to Bell Atlantic.
[* Confidential treatment will be requested]
(g) on each anniversary of this Agreement, or as may be requested from time to
time, provide Lucent with a written certification by the Vendor or other
evidence as may be requested, that end or remains a certified MBE, as certified
by an independent entity satisfactory to Lucent;
(h) provide requested data in reasonable detail on the overall market potentials
and other information related to the Product furnished hereunder as an aid in
measuring Lucent's market potential and planning its efforts;
(i) give Lucent, upon at least seventy two (72) hours notice, access during
usual business hours to the premises of Vendor in order that Lucent may inspect
and verify compliance by Vendor with its obligations under this Agreement; and
8. RECORDS AND AUDITS
Vendor shall maintain accurate records which relate to Products furnished
hereunder, including but not limited to quality control records, in accordance
with generally accepted accounting and quality control principles and practices
uniformly and consistently applied in a format that will permit audit. Unless
otherwise provided in this Agreement, Vendor shall retain such records for a
period of three (3) years from the date of final payment under the order to
which such records relate. To the extent that such records may be relevant in
determining if Vendor is complying with its obligations under the applicable
Lucent and Six R Proprietary
<PAGE> 8
Page 8
order, Lucent and its authorized representatives shall have access to such
records for inspection and audit during normal business hours upon at least
seventy two (72) hours notice.
9. FORECASTS AND ORDERS
(a) Upon the execution of this Agreement, Vendor agrees to provide to Lucent a
rolling monthly forecast of the projected purchases of Products by product
type. Vendor will use reasonable efforts to insure these forecasts are as
accurate as possible. However, these purchasing forecasts are only
projections or forecasts and are not to be construed as commitments to
purchase any forecasted amount.
(b) An order submitted by Vendor shall contain the information necessary for
the furnishing of the Products and services including, without limitation,
Lucent's Contract Number, the date of the order, the shipping destination
and reference to any applicable Lucent specifications and information.
Schedules and dates, including shipment dates, for the furnishing of the
Products, must be agreed to by Lucent prior to its acceptance of the order.
All orders submitted by Vendor shall be deemed to incorporate and be
subject to the terms and conditions of this Agreement as well as any
supplemental terms and conditions agreed to by authorized representatives
of the parties in writing. Lucent reserves the right to reject any order
for good reasons.
(c) Vendor acknowledges that any estimates or forecasts of potential levels of
business between the parties made by Lucent during the negotiations of this
Agreement were good faith estimates only and agrees that Lucent shall have
no liability if such levels of business are not reached.
10. PRODUCT CHANGES
Lucent may at any time without advising Vendor make changes in the Products or
modify the drawings and specifications relating thereto, or substitute Products
of later design to fill an order, provided the changes, modifications or
substitutions under normal and proper use do not impact upon form, fit, or
function or are recommended to enhance safety. Lucent may use either new,
reconditioned, refurbished or remanufactured Products or parts in the furnishing
of Products, spares, replacement parts or repairs under this Agreement
consistent with its agreement with Bell Atlantic.
11. PRODUCT NAME CHANGE
Vendor acknowledges that Lucent will be changing during the term of this
Agreement the identity of some of the Products to be furnished hereunder to
remove references to "AT&T" or abbreviations, contractions, or simulations
thereof. At such time as Lucent elects to institute a new trade name , logo,
trademark, trade device, service mark, symbol, code and/or specification in
connection with all or any Products or Licensed Materials,
Lucent shall notify Vendor in writing ("Name Change Notice"). Said Name Change
Notice shall include, without limitation:
(a) the new trade name, logo, trademark, trade device, service mark, symbol,
code and/or specification
Lucent and Six R Proprietary
<PAGE> 9
Page 9
selected by Lucent (in its sole and absolute discretion); and
(b) instructions, guidelines, and/or other terms and conditions governing the
use by Vendor of such new trade name, logo, trademark, trade device,
service mark, symbol, code and/or specification in connection with this
Agreement.
Effective as of that date which shall be thirty (30) days after the date of any
Name Change Notice, any all rights of Vendor under this Agreement (including,
without limitation, Section 20 TRADEMARKS) to use any mark (as defined in
Section 20) which contains any references to "AT&T" or any abbreviation,
contraction or simulation thereof shall be terminated and null and void and
thereupon all rights of Vendor under this Agreement to use any mark shall apply
to and be in accordance with the Name Change Notice.
[* Confidential treatment will be requested]
13. INVOICING [* ]
(a) Invoices for Products will be sent upon shipment, or as soon thereafter as
practical. Lucent may make partial shipments of Vendor's orders. Such
partial shipments shall be separately invoiced.
[* Confidential treatment will be requested]
Lucent and Six R Proprietary
<PAGE> 10
Page 10
(c) Vendor shall be liable for and shall reimburse Lucent for all taxes and
related charges (including any interest and penalties), however designated
(excluding taxes on Lucent's net income) imposed upon or arising from the
provisions of or the transfer, sale, license, or use of Products, or other
items provided by Lucent. Taxes reimbursable under this clause shall be
separately listed on the invoice.
(d) Lucent shall not collect the otherwise applicable tax if Vendor's purchase
is exempt from Lucent's collection of such tax and a valid tax exemption
certificate is furnished by Vendor to Lucent.
14. DELIVERY, TITLE AND RISK OF LOSS
Shipments of Product shall be made FOB destination and title and risk of loss to
such Products shall pass to Vendor upon delivery to the Vendor. Shipments of
Licensed Materials shall be made FOB destination and risk of loss to such
Licensed Materials shall pass to Vendor upon delivery to the Vendor. Title to
Licensed Materials shall remain in Lucent. Vendor shall notify Lucent promptly
of any claim with respect to loss which occurred while Lucent bears the risk of
loss, of which Vendor has knowledge, and shall cooperate in every reasonable way
to facilitate the settlement of any claim. For the purposes of this Section,
"delivery" shall mean the point at which Lucent or Lucent's supplier or agent
turns over possession of the Products and/or Licensed Material ordered pursuant
to this Agreement to Vendor, Vendor's warehouse, Vendor's carrier (as may be
designated in the order), or Vendor's agent and not necessarily the final
destination shown on the order prepaid and added to the invoice as may be
specified on individual Purchase Orders. When Vendor requests Lucent to arrange
the transportation of the Product, Lucent shall ship all Products freight
collect. If Lucent is instructed to ship Product prepaid and add, Lucent shall
select a carrier based on the best rate, as negotiated by Lucent, and Vendor
shall pay Lucent's transportation costs in accordance with the standard factors
then in effect.
15. INSURANCE
(a) Any and all insurance and/or bonds that may be required under the laws,
ordinances and regulations of any governmental authority including Workers'
Compensation and Employer's Liability (individually and collectively
"Workers Compensation") is and shall be the sole responsibility of Vendor.
Without in any way limiting Vendor's obligations as set forth in Article
19 VENDOR'S REMEDIES below, Vendor shall maintain at least the following
insurance:
(1) Comprehensive General Liability (Bodily Injury and Property
Damage) Insurance including the following supplementary coverage:
(i) Contractual Liability Insurance to cover liability assumed
under this Agreement
(ii) Product and Completed Operations Liability Insurance; and
(iii) Broad Form Property Damage Liability Insurance
(2) In addition, if automobiles will be used in the performance of
the Services, Vendor shall maintain Automobile Bodily Injury and
Property Damage Liability Insurance. Such insurance shall extend
to owned, non-owned and hired automobiles used in The performance
of any order and shall comply with all applicable laws, rules and
regulations.
Lucent and Six R Proprietary
<PAGE> 11
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(3) The limit of the liability for such insurance as described in
subparagraphs (a) (1) and (a) (2) above and shall not be less
than:
(i) one million ($1,000,000) dollars combined single limit per
occurrence or
(ii) two hundred fifty thousand ($250,000) for bodily injury or
death per occurrence and one hundred thousand ($100,000) for
property damage per occurrence.
(b) The insurance specified in paragraph (a) above shall:
(1) Provide that said insurance is primary coverage with respect to
all insureds.
(2) Contain a Standard Cross Liability Endorsement which provides
that the insurance applies separately to each insured, and that
the policies cover claims or suits by one insured against the
other.
(3) Not be terminated, canceled or substantially changed without
thirty (30) days prior written notice to Lucent.
(4) Identify in writing any deductible amount and type of deductible.
(c) Vendor shall provide Lucent with certification, when requested by
Lucent, by a properly qualified representative of the insurer, of the
names of the insured, the type and amount of insurance, the location
and operation to which the insurance applies, the expiration date and
the insurer's agreement to provide written notice to Lucent at least
thirty (30) days prior to the effective date of any termination,
cancellation, lapse or material change in the policy.
(d) Vendor's obligations to maintain the insurance and to provide policy
endorsements as required herein shall survive the termination of this
Agreement, and Vendor agrees to maintain such insurance and
endorsements for a period of one (1) year beyond the written notice of
termination by either party.
(e) Vendor agrees to indemnify and save harmless Lucent from and against
any losses, damages, claims and liability that arises out of or result
from injuries or death to persons or damage to property caused by
Vendor's acts or omissions in any way arising out of Vendor's
performance under this Agreement, including claims from Lucent's
customers for warranty service, representations made by Vendor and
incidental and consequential damage. At Lucent's request, Vendor
agrees to defend Lucent against such claims, demands, or suits at
Vendor's expense. Lucent agrees to notify Vendor within a reasonable
time of any written claims or demands against Lucent for which Vendor
is responsible under this paragraph.
Lucent and Six R Proprietary
<PAGE> 12
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16. USE OF INFORMATION
All Information which bears a proprietary legend or notice restricting its use,
copying, or dissemination shall remain the property of the furnishing party
("Information"). The furnishing party grants the receiving party the right to
use such Information only as follows: such information (1) shall not be
reproduced or copied, in whole or in part, except for use as authorized in this
Agreement; and (2) shall, together with any full or partial copies thereof; be
returned or destroyed when no longer needed. When Lucent is the receiving party,
Lucent shall use such information only for the purpose of performing under this
Agreement. When Vendor is the receiving party, Vendor shall use such Information
only (1) to evaluate or order Lucent's Products or (2) to install, operate and
maintain the particular Products for which it was originally furnished. Unless
the furnishing party consents in writing, such Information shall be held in
confidence by the receiving party, except for that part, if any, which is known
to the receiving party free of any confidential obligation, or which becomes
generally known to the public through acts not attributable to the receiving
party. The receiving party may disclose such Information to other persons, upon
the furnishing party's prior written authorization, but solely to perform acts
which this clause expressly authorizes the receiving party to perform itself and
further provided such other person agrees in writing (a copy of which writing
will be provided to the furnishing party at its request) to the same conditions
respecting use of Information contained in this clause and to any other
reasonable conditions requested by the furnishing party.
17. INFRINGEMENT
In the event of any claim, action, proceeding or suit by a third party against
Vendor alleging an infringement of any United States patent, United States
copyright, or United States trademark, or a violation in the United States of
any trade secret or proprietary rights be reason of the use, in accordance with
Lucent's or other applicable specifications, of any Product, Licensed Material
(software or related documentation), if any, or other item furnished by Lucent
to Vendor under this Agreement, Lucent, at its expense, will defend Vendor,
subject to the conditions and exceptions stated below. Lucent will reimburse
Vendor for any cost, expense or attorney's fees, incurred by Lucent's written
request for authorization, and will indemnify Vendor against any liability
assessed against Vendor by final judgment on account of such infringement or
violation arising out of such use.
If Vendor's or Bell Atlantic's use shall be enjoined or in Lucent's opinion is
likely to be enjoined, Lucent will, at its expense and at its option, either (a)
replace the affected Product, Licensed Material or other item furnished pursuant
to this Agreement with a suitable suBell Atlanticitute free of any infringement
or violation, (b) modify it so that it will be free of the infringement or
violation, or (c) procure for Vendor or Bell Atlantic a license or other right
to use it. If none of the foregoing options is practical, Lucent will accept the
return of the enjoined Product, Licensed Material or other item and refund to
Vendor any amounts paid to Lucent less a reasonable charge for any actual period
of use by Vendor.
Vendor shall give Lucent prompt written notice of all such claims, actions,
proceedings or suits alleging infringement or violation and Lucent shall have
full and complete authority to assume the sole defense thereof; including
appeals, and to settle same. Vendor shall, upon Lucent's request and at Lucent's
expense, furnish all information and assistance available to Vendor and
cooperate in every reasonable way to facilitate the defense and/or settlement of
any such claim, action, proceeding or suit.
Lucent and Six R Proprietary
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No undertaking of Lucent under this section shall extend to any such alleged
infringement or violation to the extent that it: (a) arises from adherence to
design modifications, specifications, drawings, or written instructions which
Lucent is directed by Vendor or Bell Atlantic to follow, but only if such
alleged infringement or violation does not reside in corresponding commercial
Product or Licensed Material of Lucent's design or selection; or (b) arises from
adherence to instructions to apply Vendor's or Bell Atlantic's trademark, trade
name, or other company identification; or (c) resides in a Product or Licensed
Material which is not of Lucent's origin and which is furnished by Vendor or
Bell Atlantic to Lucent for use under this Agreement; or (d) relates to use of
Products, Licensed Materials or other items provided by Lucent in combinations
with other Products, Licensed Materials or other items, furnished either by
Lucent or others, which combination was not installed, recommended or otherwise
approved by Lucent. In the foregoing cases (a) through (d), Vendor will defend
and save Lucent harmless, subject to the same terms and conditions and
exceptions stated above with respect to Lucent's rights and obligations under
this clause.
[* Confidential treatment will be requested]
Lucent and Six R Proprietary
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* Confidential treatment will be requested
Lucent and Six R Proprietary
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* Confidential treatment requested
20. TRADEMARKS
Vendor will not, without Lucent's express written permission, use in marketing,
advertising, publicity, or otherwise any trade name, trademark, trade device,
service mark, symbol, code, or specification or any abbreviation, contraction,
or simulation thereof ("mark") of the Lucent companies nor shall Vendor claim
any ownership therein. Vendor shall not remove, deface, alter or otherwise
obscure any mark of the Lucent companies which is on a Product sold under this
Agreement nor shall Vendor place any mark of any other company on any such
Product. Any such usage shall inure to the benefit of the Lucent company mark
owner. As used in this paragraph the term "Lucent" means Lucent Technologies,
Bell Labs and its Affiliated companies.
21. LEGISLATION AND GOVERNMENTAL REGULATIONS
Vendor shall at all times comply with all applicable requirements of federal,
state and local laws, ordinances, administrative rules and regulations. Vendor
shall contractually require its subcontractors, distributors and agents to
comply with all such legal requirements as well, and Vendor shall indemnify,
defend and hold harmless Lucent for any damages, losses, costs, or penalties
incurred by Lucent by virtue of such noncompliance by Vendor or its
subcontractors, distributors, or agents. If requested by Lucent, Vendor shall
advise Lucent in writing of the identity and addresses of its subcontractors,
distributors and agents in connection with the Products.
22. TERMINATION OF ORDERS
Vendor may, upon notice to Lucent, and upon terms that will compensate Lucent
from all loss, terminate any order or portion thereof, issue a "hold" on an
order, or suspend performance under the Agreement in whole or in part, except
with respect to Products which have already been shipped or services which have
already been performed. Vendor's liability to Lucent for any such termination,
"hold" or suspension
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shall include, but not be limited to, the price of all services performed and of
Products delivered or held for disposition, loss of profits, incurred costs
(including charges made by Lucent suppliers), work in progress, and an
allocation of general and administrative expenses.
23. TERMINATION OF AGREEMENT
(a) Either party may terminate this Agreement without cause or reason whatsoever
upon sixty (60) days prior written notice to the other setting forth the
effective date of such termination. The termination of this Agreement shall not
affect the obligations of the parties with respect to any orders previously
entered into hereunder, and the terms and conditions of this Agreement shall
continue to apply to such orders as if this Agreement had not been terminated.
Upon termination of this Agreement without cause pursuant to this paragraph
neither party shall be liable to the other, either for compensation or for
damages of any kind or character whatsoever, whether on account of the loss by
Lucent or Vendor of present or prospective profits on sales or anticipated
sales, or expenditures, investments, or commitments made in connection therewith
or in connection with the establishment, development or maintenance or Vendor's
business, or on account of any other cause or thing whatsoever, provided that
termination shall not prejudice or otherwise affect the rights or liability of
the parties with respect to Products theretofore sold hereunder, or any
indebtedness then owing by either party to the other.
(b) Either party may terminate this Agreement, immediately, upon twenty-four
(24) hours written notice;
(i) if the other party files a petition in bankruptcy, or is
adjudicated bankrupt, or makes a general assignment for the
benefit of creditors, or becomes insolvent, or is otherwise
unable to meet its business obligations for a period of six (6)
months. Such party shall promptly and fully inform the other
party of the imminence or occurrence of any event described in
this subparagraph; or
(ii) in the event of change in the controlling ownership of Vendor or
in the event of a sale or assumption of all or substantially all
of the assets of Vendor on or after the effective date of this
Agreement, if such change, sale or assumption is unacceptable by
Lucent.
(iii)in the event the agreement between Vendor and Bell Atlantic
terminates in which event Vendor shall notify Lucent of said
termination immediately and in writing.
(c) Either party may terminate this Agreement if the other party breaches any of
the material terms and conditions of this Agreement and the other party fails to
cure such breach within thirty (30) days after written notice thereof from the
non-breaching party.
(d) Notwithstanding any other terms and provisions of this Agreement or other
arrangements agreed to by the parties, termination of this Agreement shall
automatically accelerate the due date of all invoices for Products such that
they shall become immediately due and payable on the effective date of
termination.
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(e) Upon notice of termination, Lucent shall be entitled to reject all or a part
of any orders received from Vendor after notice but prior to the effective date
of termination.
Notwithstanding any credit terms made available to Vendor prior to that time,
any Product shipped after notice of termination and prior to effective date of
termination shall be paid for by certified or cashier's check prior to shipment.
Upon termination or non-renewal of this Agreement, Vendor shall immediately:
(1) Discontinue any and all use of marks (as defined in the Paragraph
TRADEMARKS) except to identify the Products, including but not
limited to such use in advertising or business material of
Vendor;
(2) Remove and return to Lucent or destroy at Lucent's request, any
and all promotional material supplied without charge by Lucent;
(3) Return, upon request, all Lucent Information as described in the
paragraph Use of Information or provided under the Nondisclosure
Agreement between the parties dated July 9, 1996, except that
which Lucent agrees is necessary to operate and maintain
previously furnished Products;
(4) Cease holding itself out, in any other manner, as a Vendor
capable of purchasing or obtaining Products for or on behalf of
Bell Atlantic directly from Lucent; and
(5) Notify Bell Atlantic and others who may, at the initiation of
Vendor, identify, list or publish Vendor's name as a Vendor
capable of purchasing or obtaining Products for or on behalf of
Bell Atlantic (including but not limited to publishers of other
businesses directories) to discontinue such listings.
24. SURVIVAL OF OBLIGATIONS
The respective obligations of Vendor and Lucent under this Agreement which by
their nature would continue beyond the termination, cancellation or expiration
hereof shall survive such termination, cancellation or expiration.
25. FORCE MAJEURE
Except with respect to Vendor's obligation to make timely payments, neither
party shall be liable to the other party for any loss, damage, delay or failure
of performance resulting directly or indirectly from any cause which is beyond
its reasonable control, including, but not limited to the elements;
extraordinary traffic conditions, riots; civil disturbances, wars; states of
belligerency or acts of the public enemy; labor disputes; strikes, work
stoppages, inability to secure raw materials, product or transportation
facilities; or the laws, regulations, acts or failure to act of any governmental
authority, including but not limited to denial of a U.S. Export License,
hereinafter referred to as "Force Majeure". A Party shall promptly notify the
other party of the occurrence of a Force Majeure event and the notifying party
shall be excused from any further performance of these obligations affected by
the Force Majeure Event for as long as such Force Majeure Event continues and
such party uses and continues to use its best efforts to recommence performance.
Failure of either party to perform under this Agreement because of the endurance
of a Force Majeure event for more than three (3) months will represent grounds
by either party for its
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termination of the portion of this Agreement affected by the Force Majeure
Event.
<PAGE> 19
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26. ASSIGNMENT
Except as provided in this clause, neither party shall assign this Agreement or
any right or interest under this Agreement, nor delegate any work or obligation
to be performed under this Agreement, (an "Assignment") without the other
party's prior written consent. Nothing shall preclude a party from employing a
subcontractor in carrying out its obligations under this Agreement, but a
party's use of such subcontractor shall not release the party from its
obligations under this Agreement. An attempted assignment or delegation in
contravention of this clause shall be void and ineffective. Lucent has the sole
right to assign this Agreement and to assign its rights and delegate its duties
under this Agreement, in whole or in part, at anytime and without Vendor's
consent, to any corporate parent or to any present Affiliate or to any
combination of the foregoing, provided that Lucent give prompt written notice of
such assignment to Vendor.
27. SEVERABILITY
If any provision in this Agreement, or any portion thereof is subsequently held
to be invalid or unenforceable under any applicable statute or rule of law, then
that provision or portion notwithstanding, this Agreement shall remain in full
force and effect and such provision or portion shall be deemed omitted and this
Agreement shall be construed as if such invalid or unenforceable provision or
portion had not been contained herein.
28. RELEASE VOID
Neither party shall require release or waivers of any personal rights from
representatives of the other in connection with visits to its premises and both
parties agree that no such releases or waivers shall be pleaded by them in any
action or proceeding.
29. NON-WAIVER
No waiver of the terms and conditions of this Agreement, or the failure of
either party to strictly enforce any term or condition of this Agreement on one
or more occasions shall be construed as a waiver of the same of any other term
or condition of this Agreement on any other occasion.
30. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be
governed by the laws of the State of New York, except for its conflicts of law
provisions.
31. TECHNOLOGY OWNERSHIP
Lucent retains sole ownership of the design, assembly, testing rights and
information, regardless of Vendor's contribution to the value of those rights,
design and information. Lucent's sale of the Products to Vendor; Lucent's grant
to Vendor of the right to assemble, package, and sell the Product, conveys no
ownership rights whatsoever in any Product or the Product.
Lucent and Six R Proprietary
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32. NOTICES
All notices, requests, approvals and other communications ("Notices") required
or allowed under this Agreement shall be in writing and addressed as set forth
below or to such other person and/or address as either party may designate by
written Notice pursuant thereto. Such Notices shall be deemed to have been given
when received. Notices may be delivered by hand or sent by prepaid certified or
registered airmail, confirmed facsimile or electronic mail, provided a copy is
also forwarded by prepaid registered airmail.
Lucent Technologies, Inc. World Wide Technology
Contract Management Director Director - Business Operations
5 Penn Plaza, 10th Floor Julene Tojd
New York, NY 10001-1803 127 Weldon Parkway
St. Louis, MO 63043
VENDOR:
33. PURCHASE MONEY SECURITY INTEREST
(a) Subject to Lucent's prior written notice hereunder to Vendor of Lucent's
intent to file purchase money security documents as set forth in the
following and Vendor's failure to resolve any default(s) leading to such
action within ten (10) days of Lucent's notice, Lucent reserves and Vendor
agrees that Lucent shall have a purchase money security interest in all
Products heretofore sold or hereafter sold to Vendor by Lucent under this
Agreement, until any and all payments and charges due Lucent under this
Agreement including, without limitation, shipping and installation charges,
are paid in full. Lucent shall have the right, at any time during the Term
and without notice to Vendor, to file in any state or local jurisdiction
such financing statements (e.g., UCC1 financing statements) as Lucent deems
necessary to perfect its purchase money security interest hereunder. Vendor
agrees to execute and deliver to Lucent all such financing statements and
other documents as Lucent deems necessary to perfect its purchase money
security interest hereunder. Notwithstanding the foregoing obligation,
Vendor hereby irrevocably appoints Lucent as its attorney-in-fact for
purposes of executing and filing such financing statements and such other
documents prepared by Lucent or its designated agent for purposes of
perfecting Lucent's security interest hereunder. Vendor also agrees that
this Agreement may be filed by Lucent in any state or local jurisdiction as
a financing statement (or as other evidence of the Lucent's purchase money
security interest).
(b) In addition to any other remedy available to Lucent as provided herein, by
common law and by statute, Lucent may exercise its right to reclaim all
Products sold to Vendor pursuant to U.C.C. Section 2-702 or such other
applicable provision as if may exist from state to state, upon discovery of
Vendor's insolvency, provided Lucent demands in writing reclamation of such
goods before ten (10) days after receipt of such goods by Vendor, or if
such 10 day period expires after the
Lucent and Six R Proprietary
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commencement of a bankruptcy case, before twenty (20) days after receipt of
such goods by the Vendor.
34. SETTLEMENT OF DISPUTES
(a) The following procedures shall apply after the Effective Date to any
dispute or disagreement between the Parties arising out of this Agreement,
provided, however, that this Section shall not apply to indemnification
claims arising under this Agreement nor to actions for injunctive relief by
one party against the other.
(b) First:
(1) either Party may give written notification of such dispute or
disagreement to the other party, if the other Party is Vendor, to the
President and CEO of Vendor, or if the other Party is Lucent, to the
Vice-President Sales, Bell Atlantic Region ("RVP") (together being the
Senior Executive Officers or "SEOs") and
(2) the SEOs shall communicate with each other promptly with a view to
resolving such dispute or disagreement within sixty (60) days of commencing
their negotiations (or such extended period as the SEOs agree is
appropriate in any case).
(c) The giving of any notice regarding any dispute or disagreement hereunder
shall toll the running of all applicable statutes of limitation until the
later of (a) ninety (90) days following the giving of such notice or (b)
thirty (30) days following the termination of discussions between the SEOs.
(d) Second, if at the end of the sixty (60) day period contemplated hereunder
(or if later the termination of discussions between the SEOs), such dispute
or disagreement remains unresolved, either Party may request that such
dispute or disagreement be the subject of non-binding mediation. Following
such request, the SEOs shall endeavor in good faith promptly to identify a
single person (who shall be a person with experience and good reputation)
who shall assist the SEOs in discussing such dispute or disagreement and in
attempting to reach a mutually acceptable business resolution. Such
mediation process shall continue for at least sixty (60) days following the
request therefor (or such extended or shorter period as the SEOs agree is
appropriate). All applicable statutes of limitation shall be tolled during
the period of mediation.
(e) Third, if at the end of the sixty (60) day period contemplated by hereunder
(3.) (or the termination of non-binding mediation), such dispute or
disagreement remains unresolved, either Party (the "complainant") may
commence an action in court of competent jurisdiction within the United
States of America.
35. GRANT OF LICENSE
(a) The license for Licensed Materials with "Tear-Me" or "Tear-Open" licenses
shall be as provided in those licenses and shall be provided by Vendor in
their unopened original package to the end-user.
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(b) For all other Licensed Materials which are provided to Vendor for its
own use, Lucent retains title to the Licensed Materials and grants Vendor a
personal, non-transferable (except as provided in this clause LICENSE FOR
LICENSED MATERIALS (c) below) and non-exclusive license to use Licensed
Materials in the Territory on a single Designated Processor for its own
business operations. The Licensed Materials shall not be copied in whole or
in part except as necessary for authorized use and each copy shall bear the
same copyright and proprietary marks as the original. Vendor shall not
reverse engineer, decompile or disassemble any Software.
(c) Lucent grants to Vendor the right to sublicense Licensed Materials to
Bell Atlantic only, provided Vendor obtains a written license agreement
from its sublicensee which provides that it accepts the license under the
terms provided in Bell Atlantic contract number BCO3344 between Bell
Atlantic and Lucent or contract number x-105-D, also between Bell Atlantic
and Lucent.
36. PARAGRAPH HEADINGS
The paragraph headings contained in this agreement are for the convenience only
and are not intended to affect the meaning or interpretation of this Agreement.
* Confidential treatment will be requested
38. ENTIRE AGREEMENT
(a) The terms and conditions contained in this Agreement supersede all prior
oral or written understandings between the parties and shall constitute the
entire Agreement between them concerning the subject matter of this
Agreement and shall not be contradicted, explained or supplemented by any
course of dealing between Lucent or any of its Affiliates and Vendor or any
of its Affiliates. Lucent's employees, statements and its advertisements or
descriptions other than its published specifications do not constitute
warranties or other contractual obligations and shall not be relied upon by
Vendor as such. There are no understandings or representations, express or
implied, not expressly set forth in this Agreement. No terms or conditions
contained in any order or other form originated by Vendor shall apply
except for quantity, description, and delivery schedule terms.
Notwithstanding anything herein to the contrary, the parties intend that
the Nondisclosure Agreement entered into by the parties dated July 9, 1996
shall remain in full force and effect; that the Value Added Reseller
Agreement between the parties dated June 1, 1997 shall also remain in full
force and effect; and that any agreement between the parties not otherwise
identified herein not related to the Vendor status shall continue
unaffected by this Agreement.
(b) This Agreement shall not be modified or amended except by a writing signed
by the parties to be charged, and no changes or additions to this Agreement
shall be binding upon Lucent unless signed by an authorized representative
of Lucent.
(c) Both parties acknowledge they are sophisticated business entities with
access to legal and financial
Lucent and Six R Proprietary
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counsel of their choosing and that each has had the opportunity to comment
upon and seek modifications to this Agreement. Therefore the rule of law of
construction of ambiguities against the drafter shall not apply.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
LUCENT TECHNOLOGIES, INC.
By: /s/ Sarah Davis Brazier By: /s/ Mark J. Catalano
--------------------------- ------------------------------------
Name: Sarah Davis Brazier Name: Mark J. Catalano
--------------------------- ------------------------------------
Title: Associate Vice President Title: Director - Telco Business Unit
-------------------------- -----------------------------------
Date: 12/18/98 Date: 12/18/98
-------------------------- -----------------------------------
Lucent and Six R Proprietary
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* Confidential treatment requested
<PAGE> 25
* Confidential treatment will be requested
<PAGE> 26
* Confidential treatment will be requested
<PAGE> 27
Amendment No. 1
AMENDMENT NO. 1 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGIES, INC.
AND
LUCENT TECHNOLOGIES, INC.
Lucent Technologies, Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 as follows:
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGIES INC.
By: /s/ A. W. Villano By: /s/ Mark Catalano
---------------------------- ------------------------------------
Typed Name: A. W. Villano Typed Name: Mark J. Catalano
------------------ --------------------------
Title: Regional Contract Title: Director Business Operations
---------------------- -------------------------------
Management Director
----------------------
Date: March 17, 1999 Date: 4/1/99
---------------------- ------------------------------
<PAGE> 28
3/18/99
* Confidential treatment will be requested
<PAGE> 29
AMENDMENT NO. 2 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technology Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
[* Confidential treatment will be requested]
2. To correct a numbering reference error, Paragraph 13 is deleted in its
entirety and replaced by the following:
13. INVOICING [* Confidential treatment will be requested]
(a) Invoices for Products will be sent upon shipment, or as soon thereafter as
practical. Lucent may make partial shipments of Vendor's orders. Such
partial shipments shall be separately invoiced.
* Confidential treatment will be requested
<PAGE> 30
(d) Vendor shall be liable for and shall reimburse Lucent for all taxes and
related charges (including any interest and penalties), however designated
(excluding taxes on Lucent's net income) imposed upon or arising from the
provision of or the transfer, sale, license, or use of Products, or other
items provided by Lucent. Taxes reimbursable under this clause shall be
separately listed on the invoice.
(e) Lucent shall not collect the otherwise applicable tax if Vendor's purchase
is exempt from Lucent's collection of such tax and a valid tax exemption
certificate is furnished by Vendor to Lucent.
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- -------------------------------------- ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- -------------------------------------- ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- -------------------------------------- ------------------------------------
Title Title
3/26/99 4-1-99
- -------------------------------------- ------------------------------------
Date Date
<PAGE> 31
Page 1 of 1
* Confidential treatment will be requested
<PAGE> 32
AMENDMENT NO. 3 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technology Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
*Confidential treatment will be requested.
*Confidential treatment will be requested.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
3/26/99 4-1-99
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 33
* Confidential treatment will be requested
Page 1 of 1
<PAGE> 34
AMENDMENT NO. 4 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
3/26/99 4-1-99
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 35
* Confidential treatment will be requested
<PAGE> 36
AMENDMENT NO. 5 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
3/26/99 4-1-99
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 37
* Confidential treatment will be requested
Page 1 of 1
<PAGE> 38
Amendment No. 6
AMENDMENT NO. 6 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
6/28/99 7-6-99
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 39
* Confidential treatment will be requested
<PAGE> 40
Amendment No. 7
AMENDMENT NO. 7 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
7/13/99 7/14/99
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 41
* Confidential treatment will be requested
<PAGE> 42
Amendment No. 8
AMENDMENT NO. 8 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
6/28/99 7-6-99
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 43
* Confidential treatment will be requested
<PAGE> 44
Amendment No. 9
AMENDMENT NO. 9 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
* Confidential treatment will be requested
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
Sept.1, 1999
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 45
*Confidential treatment will be requested.
<PAGE> 46
Amendment No. 9A
AMENDMENT NO. 9A TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
*Confidential treatment will be requested.
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ A. W. Villano
- ------------------------------------ ------------------------------------
Signature Signature
A. W. Villano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Regional Contract Management Director Director
- ------------------------------------ ------------------------------------
Title Title
9/22/99
- ------------------------------------ ------------------------------------
Date Date
<PAGE> 47
* Confidential treatment will be requested
<PAGE> 48
Amendment No. 10
AMENDMENT NO. 10 TO THE RESELLER AGREEMENT
BETWEEN
WORLD WIDE TECHNOLOGY INC.
AND
LUCENT TECHNOLOGIES INC.
Lucent Technologies Inc. and World Wide Technologies Inc. hereby agree to amend
the Product Resale Agreement dated December 18, 1998 and as amended:
5. TERM
The term of this Agreement will be extended for one (1) year through
December 18, 2000.
All other terms and conditions are reaffirmed and remain unchanged.
In WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
on the date indicated.
LUCENT TECHNOLOGIES INC. WORLD WIDE TECHNOLOGY INC.
/s/ J. Picataggio /s/ Mark J. Catalano
- ------------------------------------ ------------------------------------
Signature Signature
J. Picataggio Mark J. Catalano
- ------------------------------------ ------------------------------------
Typed Name Typed Name
Contract Manager
- ------------------------------------ ------------------------------------
Title Title
12/15/99 12/22/99
- ------------------------------------ ------------------------------------
<PAGE> 1
Ex.10.18
FUJITSU NETWORK COMMUNICATIONS, INC.
TOTAL SOLUTION PROVIDER
AGREEMENT
THIS TOTAL SOLUTION PROVIDER AGREEMENT (this "Agreement") is made as of
the 15 day of September, 1997 (the "Effective Date"), between Fujitsu Network
Communications, Inc., a California corporation with its principal place of
business at 2801 Telecom Parkway, Richardson, Texas 75082 ("FNC"), and WorldWide
Technologies, Inc., a Missouri corporation with its principal place of business
at 127 E. Weldon Parkway, St. Louis, Missouri 63043-3101 ("WWT").
RECITALS
A. WHEREAS, FNC and its affiliates and related entities are engaged in the
business of manufacturing, selling and installing certain electronic and
telecommunications software ("Software") and hardware ("Hardware") [*
Confidential treatment will be requested] (collectively, the "FNC Products").
This Agreement pertains only to "FNC Products" [* Confidential treatment will be
requested] and not to any other products manufactured, sold or installed by
Company.
B. WHEREAS, WWT is an established system integration and value-added
reseller of telecommunications equipment.
C. WHEREAS, FNC and WWT desire that FNC appoint WWT as an authorized
value-added reseller and total solution provider for the FNC Products, with
respect to the territory described in Exhibit B attached hereto (the
"Territory"), under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, FNC and WWT agree as follows:
1. Appointment.
(a) Non-Exclusive Appointment. Subject to the terms and
conditions of this Agreement, FNC hereby appoints WWT, and WWT hereby accepts
such appointment from FNC, as a non-exclusive value-added reseller and total
solution provider for the FNC Products with marketing and service responsibility
for end-user customers located in the Territory. WWT may not, directly or
indirectly, market, distribute, sell or otherwise provide any FNC Product to any
third party located outside the Territory.
(b) Limitation of Appointment. The parties hereby acknowledge
that it may be desirable for FNC to maintain direct business relationship with
certain customers. Accordingly, the parties agree that notwithstanding WWT's
non-exclusive appointment, FNC may from time to time, by written notice to WWT,
designate any of FNC's existing or prospective customers as a direct account
("Direct Account"), and each such Direct Account shall be deemed outside of the
Territory. Accordingly, WWT agrees that it will not, directly or indirectly,
solicit orders of FNC Products from any Direct Accounts.
(c) FNC's Reserved Rights. FNC reserves the rights from time
to time, in its sole discretion, with or without notice to WWT and without
liability to WWT, to (i) change the number of FNC distributors, value-added
resellers, and total solution providers; (ii) alter, modify or improve the FNC
Products; (iii) change, or to add to or delete from the list of, FNC Products;
(iv) change or terminate the level or type of service or support that FNC makes
available; (v) distribute FNC Products using FNC's own personnel or independent
sales representatives, distributors, dealers, resellers or original equipment
manufacturers; and (vi) add to or delete from the Territory.
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
2. Obligations of WWT.
(a) Marketing Efforts and Restrictions. During the term of
this Agreement, WWT will use its best efforts to sell, advertise and promote the
sale and use of FNC Products throughout the Territory, in accordance with the
terms and policies of FNC as announced from time to time. WWT will sell FNC
Products with all packaging, warranties, disclaimers and license agreements
intact as shipped from FNC and will instruct customers as to the terms of such
documentation as applicable to FNC. WWT will make no representations about FNC
Products, except to the extent such representations either appear in literature
approved or prepared by FNC, or are provided directly by FNC.
(b) Unauthorized Use of FNC Products. WWT is authorized to
sell FNC Products only to end user customers. WWT will not distribute FNC
Products to any person or entity that WWT knows or suspects will resell such FNC
Products to others. WWT will distribute FNC Products in a manner that insures
that WWT maintains direct, in-person contact with its customers so that adequate
technical assistance, training and support can be provided. WWT will not alter,
reverse-engineer, decompile or disassemble any FNC Products. Further, WWT will
not make any modifications to the design specifications of any FNC Products nor
remove or alter or translate any writings or etchings contained on FNC Products
or the documentation delivered to WWT as part of FNC Products without the prior
written consent of FNC. Any such modification or translations will remain the
exclusive property of FNC; provided that in the event a court of competent
jurisdiction should deem such modifications or translations to be the property
of WWT, WWT will grant and hereby does grant to FNC a royalty-free, paid-up,
worldwide, perpetual and non-exclusive license to make, sell and/or use all such
modifications or translations.
(c) WWT Personnel. WWT will train, employ and maintain a
sufficient number of experienced, competent and capable technical and sales
personnel having the knowledge and training necessary to (i) inform customers
properly concerning the features and capabilities of FNC Products and, if
necessary, competitive products; (ii) service and support FNC Products in
accordance with WWT's obligations under this Agreement; and (iii) otherwise
carry out the obligations and responsibilities of WWT under this Agreement.
(d) Value to be Added/Additional Obligations. In addition,
during the term of this Agreement, WWT will, at its own expense, provide the
following added value:
(i) Inventory. WWT will provide forecasting for and
material flow management of FNC Products and will order and maintain stocks of
FNC Products and spare and replacement parts necessary to meet the reasonable
needs of customers in accordance with such forecasting and stocking guidelines
as may be provided by FNC from time to time.
(ii) Warehousing Services. WWT will provide warehousing
facilities sufficient to serve adequately the needs of its customers on a timely
basis.
(iii) Staging and Kitting. WWT will provide all staging
and kitting necessary for FNC Products sold to customers of WWT. Staging and
kitting for purposes of this Agreement means warehousing, staging, packaging FNC
Products as a complete kit as ordered by customers, and shipping the kits to
customers.
(iv) System Assembly. WWT will provide all system
assembly services necessary for FNC Products sold to customers of WWT. System
and assembly services for purposes of this Agreement include assembly of
component parts into a functioning system.
(v) Engineer, Furnish and Install. WWT will provide
complete engineer, furnish and installation assistance for end users with regard
to the FNC Products, including but
2
<PAGE> 3
not limited to site surveys, detail engineering, bills of materials,
installation and specifications, quality audits, and electronic records updates.
(vi) FNC Product Improvement Programs. WWT will perform
FNC Product improvement programs, including any recall of FNC Products by FNC,
announced by FNC within the time limit reasonably specified in such programs.
FNC will be responsible for the implementation and expenses related to any major
field retrofit program resulting from a manufacturing defect or no cost upgrade
negotiated by FNC with the end user customer.
(vii) Quality and Workmanship Requirements. WWT will
comply with all FNC specifications and requirements for quality and workmanship,
including but not limited to storage and handling, packaging, shipping, and
quality.
(viii) FNC Product Warranty Services. WWT will be
responsible for all product warranty services required (including reimbursing
FNC or any other distributor of FNC which may perform the warranty service on
behalf of WWT) during the applicable warranty period on FNC Products sold by
WWT, all in accordance with the warranty policy of FNC for such FNC Products.
(ix) Information. WWT will inform itself about the
performance of FNC Products used in the Territory and will, regardless of
expiration date of any applicable warranty, promptly report to FNC all accidents
and/or incidents involving FNC Products in the Territory which result in
personal injury or property damage.
(e) WWT Financial Condition. WWT will maintain and employ in
connection with WWT's business under this Agreement such working capital and net
worth as may be required in FNC's reasonable opinion to enable WWT to carry out
and perform all of WWT's obligations and responsibilities under this Agreement.
From time to time, on reasonable notice by FNC, WWT will furnish such financial
reports and other financial data as FNC may reasonably request as necessary to
determine WWT's financial condition.
(f) WWT Covenants. WWT will: (i) conduct business in a manner
that reflects favorably at all times on FNC Products and the good name, good
will and reputation of FNC; (ii) avoid deceptive, misleading or unethical
practices that are or might be detrimental to FNC, FNC Products or the public;
(iii) make no false or misleading representations with regard to FNC or FNC
Products; (iv) not publish or employ, or cooperate in the publication or
employment of, any misleading or deceptive advertising material with regard to
FNC or FNC Products; (v) make no representations, warranties or guarantees to
customers or to the trade with respect to the specifications, features or
capabilities of FNC Products that are inconsistent with the literature
distributed by FNC; and (vi) not enter into any contract or engage in any
practice detrimental to the interests of FNC in FNC Products.
(g) Compliance with Law. WWT will comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its dealings with respect to FNC
Products. Without limiting the foregoing, WWT will be solely responsible for
securing any and all necessary permits, licenses and other governmental
approvals for WWT's promotion, marketing, sales and exportation of FNC Products.
(h) Costs and Expenses. Except as expressly provided herein or
agreed to in writing by FNC and WWT, WWT will pay all costs and expenses
incurred in the performance of WWT's obligations under this Agreement.
3. Obligations of FNC.
(a) Sale of FNC Products. FNC will use reasonable efforts to
sell and ship the FNC Products ordered by WWT in the quantities and at the times
requested by WWT in accordance
3
<PAGE> 4
with the terms and conditions of this Agreement. FNC will make available to WWT
at reasonable prices, all packaging and crating materials required for the
shipment of FNC Products by WWT. [* Confidential treatment will be requested]
Packaging provided by FNC will not include FNC proprietary labels.
(b) Marketing Materials. FNC will provide promotional, sales
and marketing materials relating to FNC Products purchased by WWT hereunder
which FNC provides to other resellers or distributors and which WWT may
reasonably require to assist in marketing the FNC Products.
(c) Spare and Replacement Parts. FNC will use reasonable
efforts to make available for purchase by WWT such spare and replacement parts
as WWT may require to adequately repair, maintain or otherwise service the FNC
Products.
(d) Support and Training. FNC will provide reasonable advisory
services, quality assurance services, and training to WWT to assist WWT in the
proper operation of the FNC Products, including technical advice on the makeup
and inspection of the FNC Products and information concerning the functioning
and operation of the FNC Products. FNC may from time to time, at its discretion,
require WWT to pay reasonable charges to FNC for support and training. FNC will
provide additional technical and field support when requested in writing in
accordance with FNC standard offerings.
(e) Repurchase of Inventory. FNC will make arrangements to
repurchase any inventory items from WWT that become obsolete as a result of new
product announcements by FNC. FNC and WWT will meet on a monthly basis to review
stocking levels, slow moving inventory items, and non-moving inventory items
during the first twelve months of the initial term of the Agreement. Inventory
adjustments, including potential repurchase of stock, will be mutually agreed
upon at these meetings. All of the foregoing notwithstanding however, excluding
obsolete inventory items, repurchase will be limited to not more than 20% of the
previous six (6) months' actual purchases by WWT. In an effort to eliminate the
inventory of obsolete items, FNC will notify WWT at least thirty (30) days prior
to the official announcement of new products that would render part of WWT's
inventory obsolete. In that thirty (30) day period, WWT will use its best
efforts to sell the affected inventory. At the expiration of the thirty (30) day
period, FNC will purchase from WWT such obsolete FNC Products then in WWT's
inventory at the same prices paid by WWT to FNC therefor.
4. Inspections, Records and Reporting.
(a) Reports. Within ten (10) days of the end of each month,
WWT will provide to FNC a written or electronic report showing, for the time
periods FNC reasonably requests, (i) WWT's shipments of FNC Products by customer
and dollar volume and quantity, both in the aggregate and for such categories as
FNC may designate from time to time, and (ii) WWT's current inventory levels of
FNC Products, in the aggregate and by FNC Product.
(b) Notification. WWT will notify FNC in writing of: (i) any
claim or proceeding involving FNC Products within ten (10) days after WWT learns
of such claim or proceeding; and (ii) all claimed or suspected product defects
immediately.
(c) Records. WWT will maintain, for at least two years after
termination of this Agreement, its records, contracts and accounts relating to
distribution of FNC Products and will permit examination thereof by authorized
representatives of FNC at all reasonable times.
5. Orders and Order Procedures.
(a) Purchase Orders. WWT shall purchase FNC Products through
the issuance of purchase orders. Purchase orders to FNC may be issued by mail,
fax, electronic data
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<PAGE> 5
interchange or other mutually agreeable method. All purchase orders submitted by
WWT shall state the following information, as applicable:
(i) description and model number of FNC Products,
(ii) quantity or lots and assortments ordered,
(iii) unit price and total price of FNC Products ordered,
(iv) requested delivery dates and quantities or lots to
be shipped on each such date,
(v) locations to or at which FNC Products are to be
delivered or installed, and
(vi) reference to this Agreement and a statement that
such orders are being placed pursuant to and are
subject to the terms and conditions of this
Agreement.
(b) FNC Acceptance. All purchase orders for FNC Products by
WWT shall be subject to acceptance in writing by FNC at its principal place of
business and shall not be binding until the earlier of such acceptance or
shipment, and, in the case of acceptance by shipment, only as to the portion of
the order actually shipped.
(c) Controlling Terms. The terms and conditions of this
Agreement and of the applicable FNC invoice or confirmation will apply to each
order accepted or shipped by FNC hereunder. The provisions of WWT's form of
purchase order or other business forms will not apply to any order
notwithstanding FNC's acknowledgment or acceptance of such order.
(d) Cancellation. FNC reserves the right to cancel any orders
placed by WWT and accepted by FNC as set forth above, or to refuse or delay
shipment thereof, if WWT (i) fails to make any payment as provided in this
Agreement or under the terms of payment set forth in any invoice or otherwise
agreed to by FNC and WWT, (ii) fails to meet reasonable credit or financial
requirements established by FNC, including any limitations on allowable credit,
or (iii) otherwise fails to comply with the terms and conditions of this
Agreement. FNC also reserves the right to discontinue the manufacture or
distribution of any or all FNC Products at any time, and to cancel any orders
for such discontinued FNC Products without liability of any kind to WWT or to
any other person. No such cancellation, refusal or delay will be deemed a
termination (unless FNC so advises WWT) or breach of this Agreement by FNC.
[* Confidential treatment will be requested]
5
<PAGE> 6
* Confidential treatment will be requested
(f) Security Interest. WWT agrees that if and when FNC
establishes a line of credit for WWT or permits WWT to obtain FNC Products on
open account, WWT concurrently grants FNC a continuing security interest in the
Collateral (as defined below) in order to secure payment of the Indebtedness (as
defined below). "Collateral" means any FNC Products now or hereafter acquired by
WWT, and "Indebtedness" means any and all debts, obligations or liabilities of
WWT to FNC, now or hereafter existing, including without limitation, any late
payment charges due from WWT hereunder and any expenses incurred by FNC in
enforcing its rights hereunder (including without limitation attorneys' fees,
court costs and the costs of retaking and holding the Collateral, preparing it
for resale or other disposition, or selling or otherwise disposing of it). WWT
acknowledges that this Section 6(f) constitutes a security agreement and hereby
authorizes FNC to file any financing statement or other documents necessary to
perfect FNC's security interest in the Collateral in any public office in any
jurisdiction deemed necessary by FNC. WWT hereby grants FNC a limited power of
attorney for the sole purpose of executing, in WWT's name, any financing
statements and related documents deemed necessary by FNC to perfect the security
interest granted herein. Upon any failure by WWT to pay all or any part of the
Indebtedness when due, FNC, in addition to and not in lieu of any and all other
rights and remedies available to it as a creditor of WWT, shall be entitled to
all rights, powers and remedies available to a secured party under the Uniform
Commercial Code with respect to the Collateral. In addition to the foregoing,
WWT will pay FNC's attorneys fees incurred in enforcing this security interest.
(h) No Setoff. WWT will not setoff or offset against FNC's
invoices amounts that WWT claims are due to it. WWT will bring any claims or
causes of action it may have in a separate action and waives any right it may
have to offset, setoff or withhold payment for FNC Products delivered by FNC.
7. Shipment, Risk of Loss and Delivery.
(a) Shipment. All FNC Products will be shipped by FNC F.O.B.,
FNC's point of shipment. Shipments will be made to WWT's identified warehouse
facilities or freight forwarder, subject to approval in writing by FNC in
advance of shipment. Unless specified in WWT's order, FNC will select the mode
of shipment and the carrier. WWT will be responsible for and pay all packing,
shipping, freight and insurance charges.
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<PAGE> 7
(b) Title and Risk of Loss. Title to the Hardware will pass to
WWT upon FNC's receipt of the full purchase price from WWT for the FNC Product
of which the Hardware is a component, and all risk of loss of or damage to FNC
Products will pass to WWT upon delivery by FNC to the carrier, freight forwarder
or WWT, whichever first occurs.
(c) Partial Delivery. Unless WWT clearly advises FNC to the
contrary in writing, FNC may make partial shipments on account of WWT's orders,
to be separately invoiced and paid for when due. Delay in delivery of any
installment shall not relieve WWT of its obligation to accept the remaining
deliveries.
(d) Delivery Schedule; Delays. FNC will use reasonable efforts
to meet WWT's requested delivery schedules for FNC Products, but FNC reserves
the right to refuse, cancel or delay shipment to WWT when WWT's credit is
impaired, when WWT is delinquent in payments or fails to meet other credit or
financial requirements established by FNC, or when WWT has failed to perform its
obligations under this Agreement.
8. WWT Determines Its Own Price.
Although FNC may publish suggested wholesale or retail prices,
these are suggestions only and WWT will be entirely free to determine the actual
prices at which FNC Products will be sold by WWT to its customers.
9. Trademarks, Trade Names, Logos, Designations and Copyrights.
(a) Use During Agreement. During the term of this Agreement,
WWT is authorized by FNC to use the trademarks, trade names, logos and
designations FNC uses for FNC Products in connection with WWT's advertisement,
promotion and distribution of FNC Products. WWT's use of such trademarks, trade
names, logos and designations will be in strict accordance with FNC's policies
in effect from time to time, including but not limited to trademark usage and
cooperative advertising policies. WWT agrees not to attach any additional
trademarks, trade names, logos or designations to any FNC Product. WWT further
agrees not to use any FNC trademark, trade name, logo or designation in
connection with any non-FNC Product.
(b) Copyright and Trademark Notices. WWT will include on each
FNC Product that it distributes, and on all containers and storage media
therefor, all trademark, copyright and other notices of proprietary rights
included by FNC on such FNC Product. WWT agrees not to alter, erase, deface or
overprint any such notice on anything provided by FNC. WWT also will include the
appropriate trademark notices when referring to any FNC Product in advertising
and promotional materials.
(c) WWT Does Not Acquire Proprietary Rights. WWT has paid no
consideration for the use of FNC's trademarks, trade names, logos, designations
or copyrights, and nothing contained in this Agreement will give WWT any right,
title or interest in any of them. WWT acknowledges that FNC owns and retains all
trademarks, trade names, logos, designations, copyrights and other proprietary
rights in or associated with FNC Products, and agrees that it will not at any
time during or after this Agreement assert or claim any interest in or do
anything that may adversely affect the validity of any trademark, trade name,
logo, designation or copyright belonging to or licensed to FNC (including,
without limitation any act or assistance to any act, which may infringe or lead
to the infringement of any of FNC's proprietary rights).
(d) No Continuing Rights. Upon expiration or termination of
this Agreement, WWT will immediately cease all display, advertising and use of
all FNC trademarks, trade names, logos and designations and will not thereafter
use, advertise or display any trademark, trade name, logo or
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<PAGE> 8
designation which is, or any part of which is, similar to or confusing with any
trademark, trade name, logo or designation associated with any FNC Product.
(e) Obligation to Protect. WWT agrees to use reasonable
efforts to protect FNC's proprietary rights and to cooperate at WWT's expense in
FNC's efforts to protect its proprietary rights. WWT agrees to promptly notify
FNC of any known or suspected breach of FNC's proprietary rights that comes to
WWT's attention.
10. Assignment.
FNC has entered into this Agreement with WWT because of WWT's
commitments in this Agreement, and further because of FNC's confidence in WWT,
which confidence is personal in nature. This Agreement will not be assignable by
either party, and WWT may not delegate its duties hereunder without the prior
written consent of FNC; provided, however, that FNC may assign this Agreement to
a subsidiary or entity controlling, controlled by or under common control with
FNC. The provisions hereof shall be binding upon and inure to the benefit of the
parties, their successors and permitted assigns.
11. Duration and Termination of Agreement.
(a) Term. This Agreement shall become effective on the
Effective Date and shall continue for a period of three (3) years, unless
earlier terminated or further extended in accordance with the provisions herein.
This Agreement will automatically be extended for successive one-year terms
unless either party provides to the other party a written notice of termination
at least three (3) months prior to the end of the then-existing term.
(b) FNC Termination For Cause. FNC may terminate this
Agreement at any time prior to the expiration of its stated term in the event
that:
(i) WWT defaults in any payment due to FNC and such
default continues unremedied for a period of thirty (30) days following written
notice of such default;
(ii) WWT falls to perform any other obligation, warranty,
duty or responsibility or is in default with respect to any term or condition
undertaken by WWT under this Agreement and such failure or default continues
unremedied for a period of twenty (20) days following written notice of such
failure or default; or
(iii) WWT is merged, consolidated, sells all or
substantially all of its assets, or implements or suffers any substantial change
in management or control.
(c) Termination At Will. Notwithstanding any other provision
hereof to the contrary, either party may terminate this Agreement at any time by
written notice given to the other party not less than sixty (60) days prior to
the effective date of such termination.
(d) Automatic Termination. This Agreement terminates
automatically, with no further act or action of either party, if a receiver is
appointed for WWT or its property, WWT makes an assignment for the benefit of
its creditors, any proceedings are commenced by, for or against WWT under any
bankruptcy, insolvency or debtor's relief law, or WWT is liquidated or
dissolved.
(e) Orders After Termination Notice. In the event that any
notice of termination of this Agreement is given, FNC will be entitled to reject
all or part of any orders received from WWT after notice but prior to the
effective date of termination if availability of FNC Products is insufficient at
that time to meet the needs of FNC and its customers fully. Notwithstanding any
credit terms made
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available to WWT prior to such notice, any FNC Products
shipped thereafter shall be paid for by certified or cashier's check prior to
shipment.
(f) Effect of Termination or Expiration. Upon termination or
expiration of this Agreement for any reason:
(i) FNC will make arrangements to reacquire, and WWT will
sell to FNC, any or all FNC Products and repair or replacement parts therefor
then in WWT's possession at prices not greater than the prices paid by WWT for
such FNC Products (or, if the FNC Products are not in unopened factory sealed
boxes, fifty percent (50%) of such prices). Upon receipt of any FNC Products so
reacquired from WWT, FNC shall issue an appropriate credit to WWT's account.
(ii) The due dates of all outstanding invoices to WWT for
FNC Products automatically will be accelerated so they become due and payable on
the effective date of termination, even if longer terms had been provided
previously. All orders or portions thereof remaining unshipped as of the
effective date of termination shall automatically be canceled.
(iii) For a period of two (2) years after the date of
termination or expiration, WWT shall make available to FNC for inspection and
copying all books and records of WWT that pertain to WWT's performance of and
compliance with its obligations, warranties and representations under this
Agreement.
(iv) WWT shall (1) cease using any FNC trademark, trade
name, logo or designation, (2) immediately remove FNC name and trademarks put up
by WWT from all buildings or other property, (3) insure such cessation of use
and removal by all persons claiming to have received the right to such use from
WWT, and (4) cease representing itself, either expressly or impliedly, as an
authorized distributor of FNC Products.
(v) The acceptance of any order from, or the sale of any
FNC Products to WWT, will not be construed as a renewal or extension of this
Agreement nor as a waiver of termination. All such transactions will be on an
order by order basis and will be governed by provisions identical with the
applicable provisions of this Agreement.
(g) No Damages For Termination or Expiration. FNC WILL NOT BE
LIABLE BY REASON OF TERMINATION OF THIS AGREEMENT TO WWT FOR COMPENSATION,
REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS ON
ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR
COMMITMENTS IN CONNECTION WITH THE BUSINESS OR GOODWILL OF WWT OR OTHERWISE. WWT
HEREBY WAIVES ANY TERMINATION INDEMNITIES OR BENEFITS FOR WHICH WWT MIGHT
OTHERWISE HAVE A CLAIM AGAINST FNC OR ITS AFFILIATES UNDER THE LAWS OF ANY
JURISDICTION. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A
MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO THIS AGREEMENT AND THAT COMPANY
WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY
AS SET FORTH HEREIN.
(h) Survival. Expiration or termination of this Agreement for
any reason will not release either party from any liabilities or obligations set
forth in this Agreement which (i) the parties have expressly agreed survive any
such expiration or termination, or (ii) remain to be performed or by their
nature would be intended to be applicable following any such expiration or
termination.
12. Relationship of the Parties.
WWT's relationship with FNC during the term of this Agreement
will be that of an independent contractor. WWT will not have, and will not
represent that it has, any power, right or authority
9
<PAGE> 10
to bind FNC, or to assume or create any liability, obligation or
responsibility, express or implied, on behalf of FNC or in FNC's name.
13. Indemnification.
(a) WWT agrees to defend, indemnify FNC (including paying all
reasonable attorneys' fees and costs of litigation) against and hold FNC
harmless from, any and all claims by any other party resulting from WWT's acts
or omissions in connection with WWT's performance or non-performance of its
duties and obligations hereunder.
(b) Subject to Section 15, hereof, Limited Liability, FNC will
indemnify and hold harmless WWT from any loss or damage (including reasonable
attorney's fees) incurred by WWT because of claims, suits, or demands of third
parties for personal injury or tangible property damage to the extent such loss
or damage is caused solely by or results solely from defective FNC Products
manufactured by FNC provided: 1) WWT notifies FNC in writing of any suits,
claims or demands against WWT for which FNC is responsible within five (5)
business days after WWT is aware of any such suit, claim, or demand; and 2) WWT
gives FNC full opportunity and authority to assume sole defense of such suits
and provides full support to FNC in defense of same.
* Confidential treatment will be requested
15. Limited Liability.
(a) IN THE EVENT THAT FNC SHOULD BE LIABLE TO WWT FOR ANY
MATTER RELATING TO OR ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED
ON ACTION OR CLAIM IN CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, EQUITY,
INDEMNITY, NEGLIGENCE, INTENDED CONDUCT, TORT OR OTHERWISE, THE AMOUNT OF
DAMAGES RECOVERABLE AGAINST FNC OR ANY OF ITS AFFILIATES FOR ALL EVENTS, ACTS OR
OMISSIONS WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID TO FNC BY WWT FOR
THE SPECIFIC ITEM OF FNC PRODUCT GIVING RISE TO SUCH DAMAGES (EXCLUDING PAYMENTS
FOR TAXES OR COSTS AND EXPENSES). IN NO EVENT WILL FNC OR ANY OF ITS AFFILIATES
BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES, INCLUDING ANY LOSS OF INCOME, PROFITS, COST-SAVINGS, GOODWILL OR
BUSINESS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, BREACH OF
WARRANTY, STRICT LIABILITY, EQUITY, INDEMNITY, NEGLIGENCE, INTENDED CONDUCT,
TORT OR OTHERWISE, EVEN IF FNC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL FNC BE LIABLE TO WWT'S CUSTOMERS. THE PROVISIONS OF
THIS SECTION 15 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR
ANY REASON.
10
<PAGE> 11
(b) WWT agrees that the limitations of liability and
disclaimers of warranty set forth in this Agreement will apply regardless of
whether FNC has tendered delivery of FNC Products or WWT has accepted any FNC
Product. WWT acknowledges that FNC has set its prices and entered into this
Agreement in reliance on the disclaimers of liability, the disclaimers of
warranty and the limitations of liability set forth in this Agreement and that
the same form an essential basis of the bargain between the parties.
16. Software License and Confidentiality.
(a) Software License. Certain FNC Products to be purchased by
WWT from FNC for resale hereunder are comprised of both hardware and software
components. Accordingly, FNC hereby grants to WWT, and WWT hereby accepts from
FNC, a non-exclusive, non-transferable license to grant a non-exclusive,
non-transferable sublicense to any customer of WWT located in the Territory to
use the object code of the Software solely as an integral part of the FNC
Product purchased by such customer from WWT; provided that WWT will cause each
such customer (and will be liable to FNC for any such customer's failure) to be
in strict compliance with the following use provisions:
(i) The Software, including any upgrades, updates,
enhancements and modifications thereto, and documentation therefor, is and will
remain the exclusive property of FNC or the third parties from which FNC has
obtained the Software and the customer will have no rights or interest therein
except for the non-exclusive, non-transferable right to use the Software as an
integral part of the FNC Product purchased by the customer.
(ii) The Software may only be accessed by employees of the
customer and may used solely for the customer's internal business purposes.
(iii) The customer will keep the Software and related
documentation confidential and will not disclose, sell, assign, license or
otherwise dispose of or commercially exploit any portion thereof.
(iv) The customer will not decompile, dissemble, translate
or reverse engineering the Software or any portion thereof.
(v) The customer will not create any software which
emulates or performs substantially the same function as the Software.
(vi) The customer may make one copy of the Software solely
for backup purpose; provided that the customer reproduces and includes FNC's
copyright notices on any such backup copy.
(b) Confidentiality. WWT will maintain in strict confidence
and safeguard all confidential and proprietary information of FNC, including,
but not limited to, the terms and conditions of this Agreement, customer lists,
cost information, marketing plans and any other business and technical
information which becomes available to WWT in connection with this Agreement.
The provisions of this Section 16 will survive the expiration or termination of
this Agreement for any reason.
17. General.
(a) Waiver. The failure of either party to enforce at any time
or for any period of time the provisions hereof in accordance with their terms
will not be construed to be a waiver of such provisions or of the right of such
party thereafter to enforce each and every provision. The waiver by either party
of any default by the other shall not waive subsequent defaults of the same or
different kind.
11
<PAGE> 12
(b) Notices. All notices and demands hereunder will be in
writing and will be served by personal service, mail, confirmed facsimile
transmission or nationally-recognized express courier at the address of the
receiving party set forth in this Agreement (or at such different address as may
be designated by such party by written notice to the other party). All notices
or demands by mail shall be by certified or registered airmail, return receipt
requested, and shall be deemed complete upon receipt.
(c) Attorneys' Fees. In the event that it becomes necessary to
enforce this Agreement through the use of legal action or proceedings, the
prevailing party shall be entitled to recover from the other party all the
costs, attorneys' fees and other expenses incurred by such prevailing party in
such legal action or proceedings.
(d) Governing Law: Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas,
other than the choice of law rules. Any suit hereunder will be brought in the
federal or state courts located in Dallas County or Collin County, Texas, and
each party hereby consents unequivocally to the exclusive jurisdiction of such
courts.
(e) Severability. In the event that any of the provisions of
this Agreement shall be held by a court or other tribunal of competent
jurisdiction to be unenforceable, such provision will be enforced to the maximum
extent permissible and the remaining portions of this Agreement shall remain in
full force and effect.
(f) Force Majeure. FNC shall not be responsible for any
failure to perform due to unforeseen circumstances or to causes beyond FNC's
reasonable control, including but not limited to acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods, accidents,
strikes, failure to obtain export licenses or shortages of transportation,
facilities, fuel, energy, labor or materials. In the event of any such delay,
FNC may defer the delivery date of orders for FNC Products for a period equal to
the time of such delay.
(g) Equitable Relief. WWT acknowledges that any breach of its
obligations under this Agreement with respect to the proprietary rights or
confidential information of FNC will cause FNC irreparable injury for which
there are inadequate remedies at law, and therefore FNC will be entitled to
equitable relief in addition to all other remedies provided by this Agreement or
available at law.
(h) Entire Agreement. This Agreement constitutes the complete
and exclusive agreement between the parties pertaining to the subject matter
hereof, and supersedes in their entirety any and all written or oral agreements
previously existing between the parties with respect to such subject matter. WWT
acknowledges that it is not entering into this Agreement on the basis of any
representations not expressly contained herein. Any modifications of this
Agreement must be in writing and signed by both parties hereto. Any such
modification shall be binding upon FNC only if and when signed by one of its
duly authorized officers.
(i) Release of Claims. Any and all claims against FNC arising
under prior agreements, whether oral or in writing, between FNC and WWT are
waived and released by WWT by acceptance of this Agreement.
(j) Due Execution. The party executing this Agreement on
behalf of WWT represents and warrants that he or she has been duly authorized
under WWT's charter documents and applicable law to execute this Agreement on
behalf of WWT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
FUJITSU NETWORK
COMMUNICATIONS, INC. WORLDWIDE TECHNOLOGIES, INC.
12
<PAGE> 13
Signature: /s/ Rodney J. Boehm Signature: /s/ David L. Steward
------------------------ -----------------------
Printed Name: Rodney J. Boehm Printed Name:
----------------------
Title: Vice President - Business Title:
Management -----------------------------
* Confidential treatment will be requested
Exhibit B: Territory
13
<PAGE> 14
* Confidential treatment will be requested
<PAGE> 15
* Confidential treatment will be requested
2
<PAGE> 16
Approvals: Revision: Orig.
-----
Fujitsu Network Communications, Inc. Worldwide Technology, Inc.
By: /s/ Rodney J. Boehm By: /s/ David L. Steward
---------------------------------- --------------------
Date: 9-15-97
3
<PAGE> 1
Ex. 10.19
Southwestern Bell Telephone Contract No. C2703F0
Page 1 of 23
GENERAL AGREEMENT
PREAMBLE
This a Contract between Southwestern Bell Telephone Company (Buyer), a Missouri
corporation, having an office at One Bell Center, St. Louis, Missouri 63101; and
World Wide Technology, Inc. (Seller), a ----------------------------------------
corporation, having an office at 127E Weldon Parkway, St. Louis, Missouri
63043-3101.
SCOPE
Buyer and Seller agree that ENGINEERING SERVICES (hereinafter ENGINEERING) and
INSTALLATION SERVICES (hereinafter INSTALLATION), collectively hereinafter
referred to as SERVICES, and MATERIAL are hereby offered for sale by Seller.
Services may be ordered in situations which may include but are not limited to,
material additions, material removals, and reconfiguration of Buyer's existing
material.
ENGINEERING and INSTALLATION may be ordered in combination, separately or in
conjunction with a purchase order (hereinafter "Order") which calls for Seller
to furnish MATERIAL.
TERM OF AGREEMENT
Buyer and Seller agree that the Contract term will be from April 1, 1995,
through March 31, 1997.
BILLING
For work against an Order placed pursuant to this Contract, and unless otherwise
specifically agreed, Seller will (1) VERIFY that all Seller's support documents
and Seller's packages/shipping containers bear Buyer's Order number; (2) render
invoices showing appropriate details for each Order or, when appropriate, each
shipment; (3) forward bills of lading, shipping notices, and transportation
bills, if applicable, to Buyer prior to final billing: (4) forward the invoices,
bills, and notices to the billing address on the Order unless specifically
directed otherwise by Buyer. If prepayment of transpiration charges is
authorized, Seller will include the transportation charges as a separate item on
the invoice.
Seller agrees to accept and acknowledge Buyer's notices of disputed billing and
to provide Buyer notice of the disposition and solution of such disputed billing
as soon as reasonably practicable. Seller will make its best effort to resolve
such dispute within thirty (30) days after the receipt of Buyer's notice.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
*Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
<PAGE> 2
Southwestern Bell Telephone Contract No. C2703F0
Page 2 of 23
Seller will render all billing invoices associated with an Order by the end of
the initial ninety (90) day period after acceptance in accordance with Clause
____, INSPECTION AND ACCEPTANCE OF INSTALLATION.
COMPLAINTS
Buyer reserves the right to notify Seller in cases where Buyer has identified
current or potential problem areas concerning Seller's SERVICES and/or MATERIAL
furnished hereunder. Whenever Buyer exercises such right, Seller agrees to:
(a) Accept such notice (hereinafter referred to as an "Engineering Complaint")
and handle it in accordance with Bell Communications Research, Inc.
("Bellcore") Technical Publication GR-230-CORE Issue 1. 9-1-94 "Generic
Requirements for Engineering Complaints."
(b) Acknowledge receipt of such Engineering Complaint and advise Buyer of
Seller's proposed organization responsible for resolving it within ten (10)
working days of Seller's receipt thereof.
(c) Resolve such Engineering Complaint within ninety (90) calendar days of the
date of Buyer's notice, unless a later date is mutually agreed upon by the
parties. If unable to resolve an Engineering Complaint within said ninety
(90) day period, Seller will issue an "interim report" as defined in
GR-230-CORE.
DOCUMENTATION
Information prepared by Seller and relating to the SERVICES and/or MATERIAL
provided hereunder will be in accordance with the requirements of Buyer.
All documentation including but without limitation, office drawings, wiring
drawings, fuse records, operational manual, and final test records summary
required by Buyer will be turned over to Buyer upon ENGINEERING completion
and/or INSTALLATION completion and will reflect final changes, modifications and
will be correct prior to turning over to Buyer. Such documentation relating to
specific applications will become the property of Buyer. Schematic drawings and
circuit descriptions will be provided by Seller as applicable for the MATERIAL
provided.
With each application of ENGINEERING and/or INSTALLATION by Seller to Buyer,
Seller will provide documentation covering such ENGINEERING and/or INSTALLATION.
This documentation and any subsequent changes or updates will reference Seller's
serialized numbers, issue numbers, and date of issue. Seller
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 3
Southwestern Bell Telephone Contract No. C2703F0
Page 3 of 23
agrees to maintain a mailing list of recipients of such documentation and
provide adequate copies of such manuals and subsequent changes or updates and
distribute such documentation in accordance with mailing list as provided by
Buyer.
ENGINEERING
ENGINEERING SERVICES include, but are not limited to, the planning, application,
configuration, and technical advice which may be associated with Buyer's
existing material or MATERIAL as ordered.
Provisions as SPECIFIED in [* confidential treatment requested] B of this
Contract will APPLY when ENGINEERING is requested from Seller.
INSPECTION AND ACCEPTANCE OF INSTALLATION
At reasonable times during the course of INSTALLATION, Buyer, at Buyer's
discretion or upon Seller's request, BUYER MAY INSPECT portions of each
INSTALLATION. Seller shall provide sufficient notice to Buyer of Seller's
testing schedule, and upon Buyer's request, Buyer may observe Seller's testing
to determine compliance with Buyer's acceptance standards or acceptance
procedures. Upon completion of INSTALLATION, Seller will submit to Buyer a
notice of completion or, if Buyer has elected advance turnover of sub-systems, a
notice of completion of advance turnover. The INSTALLATION will be considered
complete and ready for acceptance by Buyer when all wiring adjusting, and
testing or any other INSTALLATION require is completed in accordance with the
provisions herein, including CLAUSE ____, INSTALLATION STANDARDS; and CLAUSE
____, QUALITY ASSURANCE, of this Contract. Buyer will promptly make inspections
as Buyer deems necessary for final acceptance. Changes in Buyer's workmanship
standards will not be retroactive for SERVICES completed or in process by Seller
unless mutually agreed to by the parties.
Seller will notify Buyer in detail and in writing of the completion of Seller's
INSTALLATION, including the performance of all applicable equipment tests.
A. After receipt of Seller's completion notice, Buyer may conduct appropriate
Acceptance Tests AS SPECIFIED IN THE REQUEST FOR FIRM PRICE QUOTE OR ORDER
FOR ENGINEERING, OR ORDER FOR INSTALLATION SERVICES WHICH APPLIES TO THE
INSTALLATION.
B. If any requirements of the Acceptance Tests are not successfully met, Buyer
will so notify Seller in writing. Seller will, at no additional charge,
take such action as may be required to correct such deficiency and notify
Buyer after completion of
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 4
Southwestern Bell Telephone Contract No. C2703F0
Page 4 of 23
such corrective actions within forty-five (45) days of the date of Buyer's
notification. Upon receipt of Seller's notification of completion of such
corrective action, Buyer will have the right to repeat the appropriate
Acceptance Tests.
C. When the requirements of the Acceptance Tests are successfully met, Buyer
will indicate such acceptance by signing a certificate of acceptance. If
Seller does not receive notice from Buyer of unsatisfactory results of
Acceptance Tests or the certificate of acceptance within sixty (60) days
from Buyer's receipt of Seller's notice of completion, such INSTALLATION
will be deemed accepted by Buyer.
INSTALLATION
INSTALLATION SERVICES include, but are not limited to the assembly, wiring, and
testing of Buyer's MATERIAL, as ordered, or additions to Buyer's existing
material.
Provisions specified (* Confidential treatment requested) and B of this
Contract, and CLAUSE ____, INSTALLATION STANDARDS, herein will be used when
INSTALLATION is requested from Seller.
INSTALLATION STANDARDS
Buyer's central office installation provisions, relating to the SERVICES
described herein, are contained in Buyer's Technical Publication TP76300,
Revision 2, May 199, "Installation Guide", and Technical Reference
TR-EOP-000295, Issue 2, November 1987, "Isolated Ground Planes: Definition and
Application to Telephone Central Offices:, both of which are incorporated herein
by this reference. Unless otherwise mutually agreed to in writing, Seller will
install MATERIAL in accordance with such standards to the extent Seller's
installation standards supplement but do not reduce or detract therefrom.
ORDERS
Unless otherwise specified in writing, any Order for ENGINEERING, and/or
INSTALLATION, and/or MATERIAL will apply against this Contract. Seller agrees to
receive Buyer's Orders for SERVICES and/or MATERIAL on a direct Order basis
AND/OR Firm Price Quote basis. Seller agrees to provide Firm Price Quotes for
each Order and/or Buyer's Request For Quote, unless prices for said SERVICES
and/or MATERIAL is specified in this Contract. Seller also agrees to receive
Buyer's Orders and provide (* Confidential treatment requested) for SERVICES as
listed in Appendix B of this Contract.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 5
Southwestern Bell Telephone Contract No. C2703F0
Page 5 of 23
1. Direct Ordering
Buyer may obtain SERVICES from Seller typically in the following
circumstances:
A. ENGINEERING and/or INSTALLATION are requested from Seller on a Order
where such Order includes Seller furnishing MATERIAL; or
B. ENGINEERING and/or INSTALLATION only are requested from Seller
Seller's detailed pricing will include separate items for MATERIAL, if any,
ENGINEERING, INSTALLATION, drafting services (including the price to provide and
ship two (2) complete sets of ENGINEERING drawings for each job), and any other
services requested, which may include, but are not limited to, transportation,
temporary storage, hoisting, and the like.
Prices will be deemed firm unless otherwise delineated in a change Order
referencing the original Order. Such change Order could affect the originally
scheduled date(s) as mutually agreed upon prior to such change.
* Confidential treatment will be requested
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 6
Southwestern Bell Telephone Contract No. C2703F0
Page 6 of 23
PERFORMANCE
Consistent with the provisions of CLAUSE ____, FORCE MAJEURE, Seller, having
confirmed and agreed to a schedule or specific date(s) in the performance of an
Order(s), will be expected to meet the schedule or date(s) contained in such
Order(s). In the event Seller anticipates an inability to perform as previously
agreed on an Order, Seller will promptly notify Buyer.
When notice is provided as indicated above or when such previously agreed upon
schedule(s) or dates(s) is not met and such affected Order is for ENGINEERING
and/or INSTALLATION only, Seller will make every reasonable effort to mitigate
such delays in performance, at no cost to Buyer, including, but not limited to
overtime work, out of sequence installation effort, and premium transportation.
If requested by Buyer, Seller will document such efforts with reasonable proof.
However, Buyer will have the option to cancel such Order without any obligation
to Seller whatsoever except as to the payment for SERVICES already performed by
Seller on such Order. If requested by Buyer, Seller will document the extent of
such completed SERVICES with reasonable proof.
When notice is provided as indicated above or when such previously agreed upon
schedule(s) or dates(s) is not met and such affected Order is for MATERIAL,
Buyer may at any time terminate any or all Orders placed by it hereunder. Unless
otherwise specified herein, Buyer's liability to Seller with respect to any such
terminated Order will be limited to the actual costs incurred by Seller in
procuring MATERIAL (not usable in
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 7
Southwestern Bell Telephone Contract No. C2703F0
Page 7 of 23
Seller's other operations or salable to Seller's other customers) in process as
of the date of Buyer's notice of termination, less any salvage value thereof. If
requested, Seller agrees to substantiate such costs with proof satisfactory to
Buyer.
* Confidential treatment will be requested
QUALITY ASSURANCE
Seller agrees that SERVICES furnished hereunder by Seller will be subject to:
(i) Seller's quality control activities and procedures, including any
performance measurements, testing, quality process reviews or inspections
to implement such procedures.
(ii) The requirements contained in the current issues of the following Bellcore
documents:
TR-TSY-000785, Issue 1, December 1988, "Systems Equipment Engineering (SEE)
Associated Services - Quality program Analysis"
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 8
Southwestern Bell Telephone Contract No. C2703F0
Page 8 of 23
TR-TSY-000870, Issue 1, February 1991, "Electronic Discharge Control in the
Manufacture of Telecommunications Equipment" (Exceptions listed in Appendix
E of this Contract)
TR-NWT-001251, Issue 1, December 1992, "Quality System Generic Requirements
for Hardware" (Seller's objective is to be in full compliance with the
provisions of this document by December 31, 1993.)
Requirements listed in the applicable material contract MARKING Clause, as
specified in QPS No. 94.890, Issue 4, "Common Language Equipment
Identification (CLEI)/Bar Code Labels."
(iii) Quality Assurance Examination and/or Process Surveillance of Seller's
SERVICES, by Buyer or its representative ("Agent"), will be conducted in
accordance with the provisions of the Method of Procedure ("MOP")
associated with the job in progress as set forth in Buyer's Installation
Guide (TP76300), which may be amended from time to time with Seller's
written approval.
Seller further agrees that it will:
(a) Notify Buyer or Buyer's Agent when SERVICE is ready for examination and
give Buyer or Buyer's Agent reasonable opportunity to examine SERVICE at
any time prior to the schedule completion date. Such examination may be
performed prior to completion of the job in accordance with the
above-referenced MOP.
(b) Provide Buyer or Buyer's Agent with copies of Seller's Quality Manual,
current inspection procedures and product specifications for the SERVICE
furnished hereunder.
(c) Maintain and make available to Buyer or Buyer's Agent the data obtained
through Seller's quality control procedures which demonstrate that the
SERVICE meets the specified quality and reliability requirements.
(d) Provide Buyer or Buyer's Agent, at no charge, with reasonable access to
Seller's test equipment, facilities, data and specifications, reasonable
assistance from Seller's personnel and reasonably sufficient working space
to enable Buyer or Buyer's Agent to perform said Quality Assurance
Examination and/or Process Surveillance and/or a review of Seller's total
quality program at Seller's facilities.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 9
Southwestern Bell Telephone Contract No. C2703F0
Page 9 of 23
Upon the demonstrated ability and consistency of the quality program, Process
Surveillance procedures may be initiated by Buyer or Buyer's Agent.
Nothing contained herein will affect Buyer's or Seller's rights hereunder, under
any warranty, or under other provisions of this Contract.
RESOLUTION OF DISPUTES
Disputes arising from failure of the parties to resolve problems or
disagreements under this Contract through normal business interfaces will be
referred in writing, along with the supporting details, to the respective
Contract Administrator for resolution. Resolution will consist of a negotiated
settlement based upon their respective Contract Administrators' interpretation
of the responsibilities and intents reflected by the language of this Contract.
The Contract Administrators are:
Buyer: Area Manager - Procurement Contracting
Seller: _____________________________________
Either party may change its Contract Administrator at any time by giving notice
to the other party.
NOTHING CONTAINED HEREIN WILL AFFECT ANY OTHER RIGHTS OR REMEDIES THE PARTIES
MAY HAVE IN ANY COURT OF LAW OR EQUITY.
TERMS OF PAYMENT
In the event Seller is not required to provide MATERIAL, Seller's invoice for
ENGINEERING will be rendered upon the completion of such ENGINEERING, or as soon
thereafter as practicable. Seller's invoice for ENGINEERING on Orders where
Seller furnishes MATERIAL will be rendered upon receipt of MATERIAL by Buyer, or
as soon thereafter as practicable. Seller's invoice(s) for INSTALLATION will be
based on the actual amount of INSTALLATION completed.
* Confidential treatment will be requested
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 10
Southwestern Bell Telephone Contract No. C2703F0
Page 10 of 23
* Confidential treatment will be requested
WORK DONE BY OTHERS
Buyer will have the right to approve any subcontractor(s) to be used by Seller
in the provision of SERVICES AND MATERIAL hereunder on Buyer's or Buyer's
customer's premises. Such approval will not be unreasonably withheld. Prior to
the
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 11
Southwestern Bell Telephone Contract No. C2703F0
Page 11 of 23
commencement of SERVICES OR PROVISION OF MATERIAL Seller will notify Buyer of
Seller's intended subcontractor(s). If Buyer expresses to Seller objection to
Seller's subcontractor within ten (10) working days from Seller's notification
to Buyer, Buyer and Seller will reach a mutually agreeable resolution before
work commences.
ASSIGNMENT
Neither party may assign, subcontract or otherwise transfer its rights or
obligations under this Contract except with the prior written consent of the
other party which consent will not be unreasonably withheld; provided, however,
Buyer will have the right to assign this Contract to any present or future
affiliate, subsidiary or parent corporation, without securing the consent of
Seller, and may grant to any such assignee the same rights and privileges Buyer
enjoys hereunder. Any attempted assignment not assented to in the manner
prescribed herein, except an assignment confined solely to monies due or to
become due, will be void. It is expressly agreed that any assignment of monies
will be void if (a) Seller fails to give Buyer at least thirty (30) days' prior
written notice thereof, or (b) such assignment attempts to impose upon Buyer
obligations to the assignee additional to the payment of such monies or preclude
Buyer from dealing solely and directly with Seller in all matters pertaining to
this Contract, including the negotiation of amendments or settlements of charges
due.
BREACH OF CONTRACT
In the event Seller is in breach of any term or condition of this Contract, and
said breach continues for a period of ten (10) days after the giving of written
notice thereof, then, in addition to all other rights and remedies available at
law or in equity, Buyer will have the right to cancel this Contract.
CHOICE OF LAW
This Contract will be governed by Missouri law.
CLEAN UP
Upon completion of the SERVICES, Seller agrees to promptly remove all tools,
equipment, materials and debris from Buyer's premises.
COMPLIANCE WITH LAWS
Seller agrees to comply with the provisions of the Fair Labor Standards Act, the
Occupational Safety and Health Act, and all other applicable federal, state,
county and local laws, ordinances, regulations and codes (including the
identification and
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 12
Southwestern Bell Telephone Contract No. C2703F0
Page 12 of 23
procurement of required permits, certificates, approvals and inspections) in
Seller's performance under this Contract. Seller further agrees to comply with
all applicable Executive Orders and Federal regulations as set forth in form
SW9368, a copy of which is attached as APPENDIX C and incorporated herein.
Seller will defend, indemnify and hold Buyer harmless from any loss, liability,
damage or expense (including attorneys' fees and court costs) sustained by Buyer
because of Seller's noncompliance.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 13
Southwestern Bell Telephone Contract No. C2703F0
Page 13 of 23
CONFLICT OF INTEREST
Seller represents and warrants that no officer, director, employee or agent of
Buyer has been or will be employed, retained or paid a fee, or otherwise has
received or will receive any personal compensation or consideration, by or from
Seller or any of Seller's officers, directors, employees or agents in connection
with the arranging or negotiation of this Contract or other associated documents
or agreements.
COPYRIGHTS
Seller agrees that all rights, title and interest in and to all original works
of authorship which Seller produces or composes in connection with the Services
shall be considered works made for hire and shall belong to the Buyer, including
all copyrights thereon, and the rights to obtain registrations of copyrights
thereon throughout the world. In the event that such works contemplated
hereunder as works made for hire shall not be considered works made for hire,
Seller hereby assigns such Works and all rights, title and interest in them to
Buyer.
CURE
Buyer will not be deemed to be in default hereunder and Seller may not attempt
to enforce any remedy for any claimed default, unless Buyer fails to cure or
correct same within ten (10) days following receipt of written notice thereof
from Seller.
ENTIRE AGREEMENT
It is agreed that estimates furnished by Buyer do not constitute commitments.
The terms contained in this Contract constitute the entire agreement between
Seller and Buyer which may not be modified except by a written instrument signed
by both parties. Any terms contained in Seller's proposal or acceptance of
Buyer's offer in Seller's invoice or in any other communication, which add to,
vary from or conflict with the terms herein will be void. The provisions of this
Contract supersede all prior oral and written quotations, communications,
agreements and understandings of the parties with respect to the subject matter
hereof. The parties further agree that no rights arising from this Contract will
inure to the benefit of any third party other than a permitted assignee.
FORCE MAJEURE
Neither party will be held responsible for any delay or failure in performance
of any part of this Contract to the extent that such delay or failure is caused
by fire, flood,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 14
Southwestern Bell Telephone Contract No. C2703F0
Page 14 of 23
explosion, war, strike, embargo, government requirement, civil or military
authorities, Act of God, public enemy, acts or omissions of carriers, or other
causes beyond the control of Seller or Buyer. If any force majeure condition
occurs, ("Condition") the party delayed or unable to perform will give immediate
notice to the other party and the notified party may elect to:
(a) Terminate this Contract or any Order or part of either as to Services not
already performed.
(b) Suspend this Contract for the duration of the Condition, buy or sell
elsewhere Services to be bought or sold hereunder, and deduct from any
commitment the quantity bought or sold or for which such commitments have
been made elsewhere.
(c) Resume performance once the Condition ceases with an option in the notified
party to extend the term of this Contract up to the length of time the
Condition endured.
Unless written notice to the contrary is given within thirty (30) days after
such notified party is notified of the Condition, option (b) above will be
deemed selected
HAZARDOUS MATERIALS/REGULATED SUBSTANCE
A "Regulated Substance," as use herein is a generic term used to describe all
materials that are regulated by any federal, state or local government during
transportation, handling and/or disposal. This includes, but is not limited to,
materials that are regulated as (a) "hazardous materials" under the Hazardous
Materials Transportation Act, (b) "chemical hazards" under Occupational Safety
and Health Administration standards, (c) "chemical substances or mixtures" under
the Toxic Substances Control Act, (d) "pesticides" under the Federal
Insecticide, Fungicide and Rodenticide Act, and (e) "hazardous wastes" as
defined or listed under the Resource Conservation and Recovery Act.
If any material furnished under this Contract contains a Regulated Substance,
Seller agrees to notify Buyer immediately and provide to Buyer all necessary
notification and other information (including but not limited to OSHA Material
Safety Data Sheets) regarding said Regulated Substance as may be required by
law. Seller further agrees to defend, indemnify and hold Buyer harmless from any
liability, penalty, damage or expense (including attorneys' fees and court
costs) sustained by Buyer because of Seller's noncompliance herewith.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 15
Southwestern Bell Telephone Contract No. C2703F0
Page 15 of 23
IDENTIFICATION CREDENTIALS
Buyer may, at its discretion, require Seller's employees to display
identification credentials, which Buyer may issue, in order to gain access to
Buyer's premises for the performance of the SERVICES. If, for any reason, any
employee of Seller to whom credentials have been issued ceases to perform the
SERVICES, Seller will immediately inform Buyer's representative in the speediest
manner possible and thereafter promptly return to Buyer's representative that
employee's identification credentials or provide a written statement of the
reason why such credentials cannot be returned.
INDEPENDENT CONTRACTOR
Seller will perform this Contract as an independent contractor and not as an
agent, employee or partner of Buyer.
INFRINGEMENT
Infringement means any claim of infringement, of any patent, trademark,
copyright, trade secret or other proprietary interest of any third party based
on the manufacture, installation, normal use, lease or sale of any program,
documentation, process or material furnished to Buyer in connection with the
Services.
Seller agrees to indemnify and hold Buyer harmless from any loss, liability,
damage or expense (including increased damages for willful infringement,
punitive damages, attorneys' fees and court costs) resulting from such
Infringement except where such infringement arises solely from Seller's
adherence to Buyer's written detailed instructions or directions. Such exception
will not, however, include:
(a) Services or merchandise available on the open market or the same as such
services or merchandise, nor
(b) Services or items of Seller's origin, design or selection.
SELLER WARRANTS THAT IT HAS MADE REASONABLE INDEPENDENT INVESTIGATION (INCLUDING
OBTAINING LEGAL OPINIONS) TO DETERMINE THE LEGALITY OF ITS RIGHT TO PRODUCT AND
SELL THE MATERIAL/EQUIPMENT/SERVICES PROVIDED HEREIN.
EACH PARTY WILL DEFEND OR SETTLE, AT ITS OWN EXPENSE, ANY ACTION OR SUIT AGAINST
THE OTHER PARTY FOR WHICH IT IS RESPONSIBLE UNDER THIS CLAUSE. FURTHER, EACH
PARTY WILL
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 16
Southwestern Bell Telephone Contract No. C2703F0
Page 16 of 23
PROMPTLY NOTIFY THE OTHER PARTY OF ANY CLAIM OF INFRINGEMENT FOR WHICH THE OTHER
PARTY IS RESPONSIBLE HEREUNDER AND COOPERATE WITH THE OTHER PARTY IN EVERY
REASONABLE WAY TO FACILITATE THE DEFENSE THEREOF.
IN THE EVENT THAT SELLER, AFTER NOTIFICATION OF ANY CLAIMS OF WHICH SELLER IS
RESPONSIBLE, DOES NOT ASSUME THE DEFENSE OF SUCH ACTION, SELLER WILL REIMBURSE
BUYER FOR ALL OF ITS COSTS INCURRED IN THE DEFENSE OF THE CLAIM, INCLUDING, BUT
NOT LIMITED TO ATTORNEYS' FEES AND INTEREST ON SUCH BUYER'S PAYMENT OF SAID
AMOUNTS FROM THE DATE OF BUYER'S PAYMENT OF SAID AMOUNTS.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 17
Southwestern Bell Telephone Contract No. C2703F0
Page 17 of 23
INSURANCE
With respect to performance hereunder, Seller agrees to maintain, at all times
during the term of this Contract, the following insurance coverage and any
additional insurance and/or bonds required by law:
(a) Workers' Compensation insurance with benefits afforded under the laws
of the state in which the Services is to be performed.
(b) Employer's Liability insurance with minimum limits of $100,000 for
bodily injury by accident, $100,000 for bodily injury by disease per
employee and $500,000 for bodily injury by disease policy aggregate.
(c) General Liability insurance with the minimum limits of $1,000,000 per
occurrence for bodily injury and property damage arising out of
Premises/Operations, $1,000,000 per occurrence Personal Injury and
$1,000,000 General Policy Aggregate (applicable to Commercial General
Liability Policies), and $1,000,000 per occurrence/aggregate for
Products/Completed Operations. Coverage must include Blanket
Contractual, Independent Contractor's Liability and Broad Form
Property Damage. Buyer is to be named as an "Additional Insured" as
respects General Liability.
(d) If use of motor vehicles is required, Automobile Liability insurance
with minimum limits of $1,000,000 per occurrence for bodily injury and
property damage, which coverage will extend to all owned, hired and
non-owned autos.
Insurance companies affording coverage hereunder must have a Best's Rating of
B+VII or better.
Upon Buyer's request, Seller agrees to furnish certificates or other acceptable
proof of the foregoing insurance which will provide for Buyer to be notified in
writing at least thirty (30) days prior to cancellation of or any material
change in any of the insurance evidenced thereby.
INVOICING
Seller will render its invoice upon completion of the Services to Buyer's
satisfaction and Buyer agrees to pay same within thirty (30) days of receipt.
Buyer reserves the right, before making any payment, to require proof that all
parties furnishing labor and/or materials in connection with the Services have
been paid. Buyer may also
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 18
Southwestern Bell Telephone Contract No. C2703F0
Page 18 of 23
withhold in order to satisfy any claim which Buyer may have against Seller
(whether or not arising under this Contract).
LIABILITY
Seller agrees to indemnify and save Buyer harmless (including its officers,
directors, agents and employees) from any and all liability, loss, damage or
expense (including attorneys' fees and court costs), incurred by Buyer in
connection with any claim or suit resulting from Services or the acts of
omissions of Seller (including any of its servants, agents or subcontractors but
excepting the negligent acts or omissions solely of Buyer) in performing the
Services.
Seller further agrees to defend Buyer, at Buyer's request, against any such
claim or suit, and Buyer agrees to promptly notify Seller of any claim for which
Seller may be responsible under this clause.
Seller's foregoing agreement to indemnify and save Buyer harmless and defend
includes, but is not limited to, any claim, suit or action of infringement of
any patent, trademark, copyright, trade secret or any other intellectual
property of any third party.
Seller agrees not to implead or bring any action against Buyer or Buyer's
employees based on any claim by any person for personal injury or death that
occurs in the course or scope of employment of such person by Seller and that
arises out of the Services.
LICENSES
No licenses, express or implied, under any patents are granted by Buyer to
Seller under this Contract.
NON-EXCLUSIVE DEALING
It is agreed that this Contract does not grant Seller an exclusive right to
perform the Services and that Buyer may itself perform, or contract with other
suppliers to perform, the Services.
NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term of
this Contract will be construed as a waiver of such term. The waiver by Buyer in
one instance of any default of Seller will not be deemed a waiver of any other
default of Seller. The express provision herein for certain rights and remedies
of Buyer are in
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 19
Southwestern Bell Telephone Contract No. C2703F0
Page 19 of 23
addition to any other legal and equitable rights and remedies to which it would
otherwise be entitled.
NOTICES
Any notice or demand which under the terms of this Contract or otherwise must or
may be given or made by Seller or Buyer will be in writing and given or made by
facsimile or similar communication or by certified or registered mail, return
receipt requested, addressed to the respective parties as shown:
(a) To Buyer: Southwestern Bell Telephone Company
1010 Pine Street 9-E-95
St. Louis, Missouri 63101
Attn: Karan Wolff
(b) To Seller:
---------------------------
---------------------------
---------------------------
Attn:
---------------------
Such notice or demand will be deemed to have been given or made when sent, if
sent by facsimile or similar communication, or when deposited, postage prepaid,
in the U.S. mail.
The above addresses may be changed at any time by giving thirty (30) days' prior
written notice as above provided
PATENTS
As a part of this Contract and without additional compensation, Seller agrees to
and does hereby sell, assign, and transfer to the Buyer, its successors and
assignees, the entire right, title and interest in and to any and all
inventions, discoveries, or improvements which are conceived or first reduced to
practice in the performance of this Contract, and to all applications for and
Letters Patent covering same, as well as any reissues, divisions, and extensions
of said applications or Letters Patent. Seller further agrees to furnish Buyer
with complete information on each such invention, discovery, or improvement and
to make, execute and deliver to the Buyer any and all patents or patent
applications, as well as all papers, documents, affidavits, statements, or other
instruments, in such form, terms and contents as required by the Buyer in or
incident to the prosecution of any and all applications for patent filed by
Seller or the Buyer with respect to such inventions, discoveries, or
improvements or in
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 20
Southwestern Bell Telephone Contract No. C2703F0
Page 20 of 23
the adjustment or any other actions or proceedings in which such applications
may become involved.
Before final payment is made under this Contract, Seller shall furnish to Buyer
complete information in respect of inventions, discoveries, or improvements
conceived or reduced to practice in connection with the Services or a statement
that no inventions, discoveries, or improvements emanated from such Services.
PLANT AND WORK RULES
Each party's employees and agents will, while on the premises of the other,
comply with all plant rules and regulations and, where required by government
regulations, submit satisfactory clearance from the U.S. Department of Defense
and/or other federal authorities concerned.
PUBLICITY
Seller agrees not to advertise, or otherwise make known to others, any
information regarding this Contract. Seller further agrees not to use in any
advertising, sales promotion, press releases or other publicity matters any
endorsements, direct or indirect quotes, or pictures implying endorsement by
Buyer or any of its employees without Buyer's prior written approval. Seller
will submit to Buyer for written approval, prior to publication, all publicity
matters that mention or display Buyer's name and/or marks or contain language
from which a connection to said name and/or marks may be inferred.
RECORDS AND AUDIT
Seller agrees that it will:
(a) Maintain complete and accurate records of all amounts billable to and
payments made by Buyer hereunder in accordance with standard
recognized accounting practices.
(b) Retain such records and reasonable billing detail for a period of
three (3) years from the date of final payment for Services.
(c) Provide reasonable supporting documentation to Buyer concerning any
disputed invoice amount within thirty (30) calendar days after receipt
of written notification of such dispute.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 21
Southwestern Bell Telephone Contract No. C2703F0
Page 21 of 23
(d) Permit Buyer, through its accredited representatives, to inspect and
audit during normal business hours the charges invoiced to Buyer.
Should Buyer request an audit, Seller will make available any
pertinent records and files.
RELEASES VOID
Neither party will require waivers or releases of any personal rights from
representatives of the other in connection with visits to each other's
respective premises, and no such releases or waivers will be pleaded by Seller
or Buyer in any action or proceeding.
SELLER'S INFORMATION
No specifications, drawings, models, samples, tools, apparatus, computer
programs, technical information or data, written, oral or otherwise, furnished
by Seller to Buyer under this Contract or in contemplation hereof will be
considered by Seller to be confidential or proprietary.
SEVERABILITY
If any provision of this Contract is determined to be invalid, such invalidity
will not invalidate the entire Contract, but rather the entire Contract will be
construed as if it did not contain the particular invalid provision(s), and the
rights and obligations of Seller and Buyer will be construed and enforced
accordingly.
SURVIVAL OF OBLIGATIONS
Seller's obligations under this Contract which by their nature would continue
beyond the Services termination or expiration hereof, including, by way of
illustration only and not limitation, those in the clauses entitled COMPLIANCE
WITH LAWS, INFRINGEMENT, LIABILITY, PUBLICITY, RELEASES VOID, SEVERABILITY, USE
OF INFORMATION and [* Confidential treatment will be requested], will survive
the termination or expiration of this Contract.
TAXES
In the event Buyer is liable for excise taxes or sales taxes collected by Seller
on the Services, Seller agrees to bill such taxes as separate items, listing
each tax jurisdiction involved. Buyer will have the right to require Seller to
contest with the imposing jurisdiction, at Buyer's expense, any taxes or
assessments which Buyer may deem to be improperly levied. Seller further agrees,
on request of Buyer, to furnish statements evidencing that taxes and assessments
for which Buyer is responsible
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 22
Southwestern Bell Telephone Contract No. C2703F0
Page 22 of 23
hereunder have been paid. However, Seller will not bill for taxes in any
situation where Buyer has provided Seller with either a Direct Payment Exemption
Certificate or a Sales Tax Exemption Certificate.
TERMINATION
Buyer may terminate this Contract in whole or in part at any time by giving
Seller at least thirty (30) days' prior written notice. Upon termination, Buyer
agrees to pay Seller all amounts due for Services accepted by Buyer up to the
effective date of termination, which payment will constitute a full and complete
discharge of Buyer's obligations to Seller hereunder.
TIMELY PERFORMANCE
If Seller learns of anything that might prevent the timely performance of the
Services. Seller will immediately notify Buyer of all relevant information
concerning the potential delay.
USE OF INFORMATION
Any specifications, drawings, models, samples, tools, apparatus, computer
programs, technical or business information or data, written, oral or otherwise
("Information"), furnished to Seller under this Contract or in contemplation
hereof will remain Buyer's property, and all copies thereof, in written, graphic
or other tangible form, will be returned to Buyer upon request. Seller agrees to
keep Information confidential in performing under this Contract and not use same
for any other purpose except upon such terms as may be agreed by Seller and
Buyer in writing.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 23
Southwestern Bell Telephone Contract No. C2703F0
Page 23 of 23
WORK DONE BY OTHERS
If any part of the Services is dependent upon work done by others, Seller agrees
to inspect such work and promptly report to Buyer any defect that renders same
unsuitable for Seller's proper performance hereunder. Seller's silence will
constitute approval of such other work as being fit, proper and suitable for
Seller's performance of the Services. Seller will be completely responsible for
all persons furnished by Seller working in harmony with all others when working
on Buyer's premises.
WITNESS/SIGNATURE BLOCK
IN WITNESS WHEREOF, the foregoing Contract has been executed by authorized
representatives of the parties hereto, in duplicate, as of the dates set forth
below.
Seller Accepted: Buyer Accepted:
Southwestern Bell
Telephone Company
By: By:
-----------------------------------------
Title: Title:
--------------------------------------
Date: Date:
---------------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 24
AMENDMENT NO. 4
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 3 TO CONTRACT NO. C2703F0 is made and entered into as of the
1st day of July, 1994 by and between World Wide Technology, Incorporated, a
Missouri corporation ("Seller"), and Southwestern Bell Telephone Company, a
Missouri corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"); and WHEREAS, said Contract has heretofore been amended by
Amendment Nos. 1-2, dated November 4, 1991 and April 22, 1993 respectively, and
WHEREAS, Seller and Buyer desire to further amend the Contract as hereinafter
contained, the parties hereto agree as follows:
Now, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, the parties hereto agree as follows:
1. Contract Term. The term of the Contract set forth in Clause 1, MATERIAL, is
hereby extended through June 30, 1997.
2. [* Confidential treatment will be requested]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 25
Contract No. C2703F0
Amendment No. 3
Page 2 of 2
3. The following CLAUSE 40 is hereby added as follows:
CLAUSE 40. SYNOPTICS EQUIPMENT-STATEMENT OF WORK
As provided in seller's response to Request for Quotation 94-058-CV Seller
agrees to provide services for Buyer's Synoptics Material. A detailed
description of specific services is included in Appendix B, attached hereto
and by this reference made a part hereof.
4. No Other Changes. In all other respects, the Contract, as heretofore
amended, will remain unchanged and the parties hereby reaffirm the terms
and provisions thereof.
IN WITNESS HEREOF, Seller and Buyer have caused this Amendment No. 3 to Contract
C2703F0 to be executed in duplicate counterparts, each of which will be deemed
to be an original instrument, as of the date first above written.
WORLD WIDE TECHNOLOGY, SOUTHWESTERN BELL
INCORPORATED TELEPHONE COMPANY
("Seller") ("Buyer")
By: /s/ David L. Steward By: /s/ Chris Vilcinshas
----------------------------------------- ---------------------
Title: President Title: Contract Manager
-------------------------------------- --------------------
Date: 7-22-94 Date: 7-18-94
------------------------------- -----------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 26
Contract No. C2703F0
Amendment No. 4
Appendix A
Page 1 of 3
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 27
Contract No. C2703F0
Amendment No. 4
Appendix A
Page 2 of 3
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 28
Contract No. C2703F0
Amendment No. 4
Appendix A
Page 3 of 3
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 29
Contract No. C2703F0
Amendment No. 3
Appendix B
Page 1 of 4
STATEMENT OF WORK
SYNOPTICS EQUIPMENT
EQUIPMENT ACQUISITION
Seller will furnish to Buyer Synoptics equipment for new orders in no longer
than 5 (five) working days from receipt of Buyer's Purchase Order. In cases of
emergency Seller will attempt to meet Buyer's requested date.
* Confidential treatment requested
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 30
Contract No. C2703F0
Amendment No. 3
Appendix B
Page 2 of 4
* Confidential treatment requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 31
Contract No. C2703F0
Amendment No. 3
Appendix B
Page 3 of 4
* Confidential treatment requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 32
Contract No. C2703F0
Amendment No. 3
Appendix B
Page 4 of 4
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 33
Contract No. C2703F0
Amendment No. 4
Page 1 of 2
AMENDMENT NO 4
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 4 TO CONTRACT NO. C2703F0 is made and entered into as of the
29th day of May, 1996 by and between World Wide Technology, Incorporated, a
Missouri corporation ("Seller"), and Southwestern Bell Telephone Company, a
Missouri corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"), and WHEREAS, said Contract has heretofore been amended by
Amendment Nos. 1-3, dated November 4, 1991, April 22, 1993 and July 22, 1994
respectively, and
WHEREAS, Seller and Buyer to desire to further amend the Contract as hereinafter
contained, the parties hereto agree as follows:
Now, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, the parties hereto agree as follows:
1. Insert the following clause to Contract No. C2703F0:
"RESALE OF MATERIAL
Seller hereby agrees that the rights of Buyer hereunder, including but not
limited to Buyer's rights under the clauses herein entitled "INFRINGEMENT",
"LIABILITY", and (* Confidential treatment requested) and Seller's
representations and warranties will inure to the benefit of Buyer's customers of
the MATERIAL. Seller further agrees to assume sole responsibility, as between
Buyer and Seller, for resolving any claim brought by any such customer against
Buyer which is attributable to Seller's failure to promptly deliver MATERIAL;
breach of warranty; design defect; negligence; products liability; patent,
trademark, copyright or other infringement, or any other claim, whether similar
or not,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 34
Contract No. C2703F0
Amendment No. 4
Page 2 of 2
attributable to the MATERIAL or the acts or omissions of Seller in
furnishing MATERIAL hereunder (collectively, the "Claims").
Seller will defend, indemnify and hold Buyer harmless from and against
any loss, liability, damage or expense (including attorneys' fees and court
costs) arising out of or resulting from any Claim. Buyer agrees to promptly
notify Seller of any Claim and cooperate with Seller, upon request and at
Seller's expense, in every reasonable way to facilitate the defense thereof.
Buyer, at its sole discretion, will determine the extent to which it
will market, advertise, promote or otherwise offer the MATERIAL to its
customers.
2. No Other Changes. In all other respects, the Contract, as heretofore
amended, will remain unchanged and the parties hereby reaffirm the terms
and provisions thereof.
IN WITNESS HEREOF, Seller and Buyer have caused this Amendment No. 4 to Contract
No. C2703F0 to be executed in duplicate counterparts, each of which will be
deemed to be an original instrument, as of the date first above written.
WORLD WIDE TECHNOLOGY, SOUTHWESTERN BELL
INCORPORATED TELEPHONE COMPANY
("Seller") ("Buyer")
By: /s/ By:
------------------------------------------ -------------------------------
Title: President Title: Contract Manager
--------------------------------------- -------------------------------
Date: June 4, 1996 Date: May 30, 1996
---------------------------------------- -------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 35
Contract No. C2703F0
Amendment No. 5
Page 1 of 1
AMENDMENT NO. 5
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 5 TO CONTRACT NO. C2703F0 is made and entered into as of the
thirtieth day of June 1997 by and between World Wide Technology, Inc., a
Missouri Corporation ("Seller"), and Southwestern Bell Telephone Company, a
Missouri corporation ("Buyer").
WITNESSETH:
-----------
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"); and WHEREAS, said Contract has heretofore been amended by
Amendment Nos. 1 thru 4, dated November 4, 1991, April 22, 1993, July 22, 1994
and April 4, 1996 respectively; and
WHEREAS, Seller and Buyer desire to amend the Contract as hereinafter set forth;
Now, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, the parties hereto agree as follows:
1. Contract Term. The term of the Contract set forth in Clause 1, MATERIAL, is
hereby extended through June 30, 2000.
2. No Other Changes. In all other respects, the Contract will remain unchanged
and the parties hereby reaffirm the terms and provisions thereof.
IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment No. 5 to
Contract No. C2703F0 to be executed in duplicate counterparts, each of which
will be deemed to be an original instrument, as of the date first above written.
WORLD WIDE TECHNOLOGY, SOUTHWESTERN BELL TELEPHONE
INC. COMPANY
/s/ Christine Beggs
- ------------------------------------ ---------------------------
("Seller") ("Buyer")
By: /s/ David Steward By:
---------------------------------
Name: David Steward Name: Christine Beggs C.P.M.
------------------------------- -----------------------------
Title: President Title: Contract Manager
------------------------------- -----------------------------
Date: 6/30/97 Date: 6-26-97
------------------------------- ----------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 36
Contract No. C2703F0
Amendment No. 6
Page 1 of 7
AMENDMENT NO. 6
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 6 TO CONTRACT No. C2703F0, effective upon signature of both
parties, is between World Wide Technology Inc., a Missouri Corporation
("Seller"), and Southwestern Bell Telephone Company, a Missouri Corporation
("Buyer").
WITNESSETH
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"), and WHEREAS, said contract has heretofore been amended by
Amendment Nos. 1 through 5 dated November 4, 1991, April 22, 1993, July 22,
1994, April 4, 1996 and Jun 30, 1997 respectively, and
WHEREAS, in consideration of the premises and covenants hereinafter contained,
the parties hereto agree as follows:
I. ADD DEFINITIONS
"Cancel" or "Cancellation" means the ending of this Agreement or an Order by a
non-defaulting party, where the other party is in default of an obligation under
this Agreement or any Order. Upon Cancellation, except as otherwise provided in
this Agreement, the non-defaulting party may exercise such remedies against the
defaulting party as are available under this Agreement, at law, or in equity.
"Delivery Date" means the date on which all items are delivered to the locations
specified in the applicable Order. The initially scheduled Delivery Date for a
Product is stated in the applicable Order and is subject to change as provided
in this Agreement.
"Information" means ideas, concepts, trade secrets, techniques, specifications,
drawings, sketches, models, samples, tools, computer programs, technical
information, and other confidential business, customer or personnel information
or data, whether written, oral, or otherwise.
"Laws and Regulations" means all applicable federal, state and local laws,
ordinances, regulations, codes, rules, orders and requirements of all duly
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 37
Contract No. C2703F0
Amendment No. 6
Page 2 of 7
constituted governmental authorities, including the procurement of permits and
licenses when needed and environmental laws such as California Proposition 65.
"Order" means each Order executed hereunder ordering Products and/or Services.
Orders shall be deemed to incorporate (1) the provisions of this Agreement as it
may be from time to time amended, (2) the Specs applicable to such Order, and
(3) any subordinate documents attached to or referenced in this Agreement or the
Order. Each such Order shall be deemed to be a separate and independent
agreement between the parties with respect to the subject matter thereof and
shall be substantially in the form set forth in the applicable Exhibit attached
hereto and made a part hereof.
"Performance Date" means the Delivery Date for Delivery Software or the
Installation Date for Installation Software as specified in the applicable
Order.
"Personnel" means Supplier's employees, subcontractors, or agents performing
Services under this Agreement.
"Products" means Equipment, Software and any other products provided by Seller
hereunder to SBC.
"Services" means all services described under the applicable Order and provided
by Seller hereunder to SBC, including but not limited to training, installation
of the Products, maintenance services and preparation of documentation.
"Software" means the Standard Software which is provided hereunder by Seller to
SBC.
"Specs" means (1) the Software publisher's published specifications, (2)
Seller's published specifications, and (any other specifications for the
Products and Services which are attached hereto or referenced in and made a part
of the applicable Order.
"Standard Software" means the computer programs which are listed as Standard
Software in the applicable Order and licensed hereunder by SBC from Seller.
"Seller's Standard Charges" means Seller's prevailing rates and charges for
Products as determined from price lists, less any discounts applicable thereto,
in effect at the time when the work was performed.
"Terminate" or "Termination" means the ending of this Agreement or any Order by
a party, for any reason, with or without cause, and without liability to the
other party.
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 38
Contract No. C2703F0
Amendment No. 6
Page 3 of 7
[* Confidential treatment will be requested]
II. REPLACE CLAUSES
1. MATERIAL
The contract pertains to the purchases of such quantities of printers, modems,
terminals, and Software of Seller's offering ("Material") as may by ordered by
Buyer for shipment during the period between November 15, 1998 through December
31, 2000.
2. NOTICES
Except as otherwise provided in this Contract, or applicable Order, all notices
or other communications hereunder shall be deemed to have been duly given when
made in writing, and either 1) delivered in person, 2) delivered to an agent,
such as an overnight or similar delivery service, or 3) deposited in the United
States Mail, postage prepaid, or 4) facsimile transmission, and addressed as
follows:
To: World Wide Technology
Contract Manager/ Telco Business Unit
Mark Catalano - Director
127 E. Welden Parkway
St. Louis, Missouri 63043
To: Southwestern Bell Telephone Company
Mark Michnoik
Contract Manager
1010 Pine Street, Rm. 9-E-67
St. Louis, Missouri 63101
The address to which notices or communications may be given by either party may
be changed by written notice given by such party to the other pursuant to this
paragraph entitled "Notices".
4. AFFILIATED COMPANIES
Seller agrees that an Affiliate may place Orders with Seller which incorporate
the terms and conditions of this Agreement, and that the term "Buyer" shall be
deemed to refer to an Affiliate when an Affiliate places an Order with Seller
incorporating the terms and conditions of this Agreement. An Affiliate will be
responsible for its own obligations,
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 39
Contract No. C2703F0
Amendment No. 6
Page 4 of 7
including, but not limited to, all charges incurred in connection with such
Order. The parties agree that nothing in this Agreement will be construed as
requiring Buyer to indemnify Seller, or to otherwise be responsible, for any
acts or omissions of an Affiliate, nor shall anything in this Agreement be
construed as requiring an Affiliate to indemnify Seller, or to otherwise be
responsible, for the acts or omissions of Buyer.
The parties agree that the term "Affiliate" includes (1) a company, whether
incorporated or not, which owns, directly or indirectly, a majority interest in
either party (a "parent company"), and (2) a company, whether incorporated or
not, in which a 5% or greater interest is owned, either directly or indirectly,
by: (i) a party to this Agreement, or (ii) a parent of a party to this
Agreement.
III. ADD NEW CLAUSES
* Confidential treatment will be requested
40. ACCEPTANCE OR REJECTION
Buyer reserves the right to accept or reject Materials after delivery at the
location designated in the applicable Order. If, prior to acceptance by Buyer,
any of the Materials are found to not be in strict conformance to this Contract
and the applicable Order, Buyer shall have the right: (a) to reject the
Materials and cancel this Contract and any applicable Order or (b) at its option
in the case of Materials, require that such Materials be repaired or replaced
promptly at Seller's risk and expense (including freight charges). Acceptance of
Materials by Buyer shall be without prejudice to Buyer's right to revoke
acceptance pursuant to the Uniform Commercial Code.
41. TITLE
Software is furnished to Buyer under a nonexclusive license, and title to such
Software is not thereby transferred to Buyer.
42 RISK OF LOSS
a. If Software is lost or damaged prior to the Performance Date, or if it is
lost or damaged at any time due to the negligence or willful misconduct of
Seller or its contractors or agents, Seller shall promptly replace it at no
additional charge to Buyer.
b. Except as otherwise provided in Section a. above, if the Software is lost
or damaged at any time after the Performance Date, Seller shall promptly
replace it and Buyer shall pay only the cost of reproduction and shipment
or delivery.
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 40
Contract No. C2703F0
Amendment No. 6
Page 5 of 7
43. MODIFICATION
a. Buyer may add to, delete from or modify the Software to meet Buyer's
particular requirements. Title to any such addition or modification shall remain
in Buyer.
b. Buyer may merge the Software with other computer programs to generate a
shared program library. After Cancellation or Termination of the license for the
Software, such Software shall be removed from such shared program library and
shall be destroyed.
c. Any Software modification made by Seller at the request and expense of Buyer
shall be governed by the provisions of a separate custom software development
agreement between the parties.
44. PROGRAM PROTECTION AND SECURITY
a. Buyer shall not provide or otherwise make available the Software in any
form to any third party, except as specified in this Agreement.
b. Buyer shall take appropriate action by instruction, agreement or otherwise
with the persons permitted access to the Software to satisfy the
obligations under this Contract with respect to use, protection and
security of the Software.
c. Buyer's rights of disclosure under this Agreement shall include the right
to provide the Software or other Information of Seller to Buyer's agents
and contractors who have a need for it in connection with the performance
of services for Buyer.
45. YEAR 2000 WARRANTY
1. Seller warrants that all Software and Firmware, including any third party
Software, which is licensed to Buyer hereunder prior to, during, or after the
calendar year 2000, includes at no additional cost to Buyer, year 2000
capability. For the purpose of this license, year 2000 capability means that the
Software and Firmware will:
(1) Read, compute, store, process, display and print data involving dates,
including single century and multi-century formulas, and will not
cause computational, display, storage or other errors resulting from
the inability to accurately or correctly handle dates, including Year
2000 and February 29, 2000;
(2) Include the indication of century in all date-related user interface
functionality, data fields, and generated code; and
(3) Be interoperable with other software used by Buyer which may deliver
records to such Software and Firmware, receive records from such
Software and Firmware or interact with such Software and Firmware in
the course of processing dates.
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 41
Contract No. C2703F0
Amendment No. 6
Page 6 of 7
2. Buyer acknowledges that Software and Firmware Products licensed by Seller
hereunder may require modification in order to correctly process dates for Year
2000 and beyond. In addition, such modifications may be required in order for
Seller's Software and Firmware Products to function correctly with Buyer's data
and in accordance with the applicable Specifications therefor. Seller agrees to
develop and implement such required changes in its Software and Firmware
Products licensed hereunder by Buyer in accordance with a schedule to be
mutually agreed to between Seller and Buyer, but which, at a minimum, shall
provide Buyer with sufficient time to adequately test such modified Software and
Firmware prior to mandatory implementation of such modified Software and
Firmware Products. Seller agrees that there shall be no additional charges to
Buyer for such modifications or the modified Software and Firmware Products.
46. QUIET ENJOYMENT
Buyer shall be entitled during the applicable lease or license term to possess
or use any leased or licensed Products without disturbance by Seller or anyone
claiming by or through Seller, provided only that Buyer is not in material
default of its obligations under the applicable Order. Seller represents that
the applicable Order is not the subject or subordinate to any right of Seller's
creditors, or if such subordination exists, that the agreement or instrument
creating the same provides for nondisturbance of Buyer, provided only that Buyer
is not in default of its obligations under the applicable Order.
IV. NO OTHER CHANGES
In all other respects, the Contract will remain unchanged and the parties hereby
reaffirm the terms and provisions thereof.
IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment to Contract No.
C2703F0 to be executed in duplicate counterpart, each of which will be deemed to
be an original instrument, as of the date of execution.
(Signature Page Follows)
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 42
Contract No. C2703F0
Amendment No. 6
Page 7 of 7
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives.
WORLD WIDE TECHNOLOGY, "SELLER"
By: /s/ David L. Steward
---------------------
Print Name: David L. Steward
---------------------
Title: CEO
----
Date Signed: 12-14-98
----------
SOUTHWESTERN BELL TELEPHONE COMPANY
"BUYER"
By: /s/ Norma Stephenson
------------------------------
Print Name: Norma Stephenson
------------------------------
Title: Supervising Contract Manager
------------------------------
Date Signed: 11-20-98
----------
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
<PAGE> 43
Contract No. C2703F0
Amendment No. 6
Attachment A
Page 1 of 2
* Confidential treatment will be requested
<PAGE> 44
Contract No. C2703F0
Amendment No. 6
Attachment A
Page 2 of 2
* Confidential treatment will be requested
<PAGE> 1
Ex. 10.20
GENERAL AGREEMENT # 98005906
SBC OPERATIONS, INC. (BUYER)
&
WORLD WIDE TECHNOLOGY, INC. (SELLER)
INDEX
<TABLE>
<CAPTION>
PAGE PAGE
---- ----
<S> <C> <S> <C>
32. Acceptance-Entire Agreement 2 63. Limitation of Liability 18
33. Access 2 64. Material Reliability 18
34. Affiliates 3 65. Modification 18
35. Amendments and Waivers 3 66. MBE/WBE-DVBE Participation Plans and
36. Assignment 4 Reports 19
37. Bar-coding 4 67. MME/WBE/DVBE CANCELLATION CLAUSE 19
38. Breach of Agreement 4 68. Non-Exclusive Market Rights 20
39. Cancellation and Termination 4 69. Non-Waiver 21
40. Changes and Suspensions 6 70. Notices 21
41. Complaints 6 71. Order Acknowledgment 21
42. Compliance With Laws 7 72. Plant and Work Rules 22
43. Conflict of Interest 7 73. Publicity 22
44. Continuing Availability 7 74. Purchase Orders 22
45. Cure 8 75. Quality Assurance 23
46. Disaster Availability 8 76. Records and Audits 25
47. Electronic Data Interchange (EDI) 8 77. Registration 26
48. Entire Agreement 9 78. Releases Void 26
49. Force Majeure 9 79. Severability 26
50. Governing Law 10 80. Software Risk of Loss 26
51. Government Contract Provisions 10 81. Survival of Obligations 26
52. Hazardous Materials and Regulated 82. Taxes 27
Substances 10 83. Technical Support 28
53. Independent Contractor 12 84. Termination 28
54. Information 13 85. Terms of Agreement 28
55. Infringement 14 [* Confidential treatment requested]
56. Insignia 15 87. Title and Risk of Loss 28
57. Installation/Cutover Assistance 16 88. Universal Design 29
58. Insurance 16 [* Confidential treatment requested]
59. Liability 17 90. Work Done By Others 30
60. Licenses 17 91. Year 2000 Warranty 30
61. License Fee 18
62. License Term 18
</TABLE>
Exhibit A Executive Orders and Associated Regulations
Exhibit A1 Seller's M/WBE-DVBE Plan
Exhibits B Buyer's Purchase Order
Exhibit B1 Results Reports
Exhibits C OEM Insurance
Exhibit D QPS Document if Applicable
*Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
<PAGE> 2
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
GENERAL AGREEMENT
SBC OPERATIONS, INC. (BUYER)
175 E. Houston
San Antonio, Texas 78205
And
WORLD WIDE TECHNOLOGY, INC. (WWT-SELLER)
127 Weldon Parkway
St. Louis, Missouri 63043-3101
PREAMBLE
This Agreement effective upon the date of execution by the last party, is
between SBC Operations, Inc. (BUYER) a Delaware corporation, for itself and its
affiliated companies (hereinafter Buyer) and World Wide Technology, Inc.
(Seller), a Missouri corporation. This Agreement outlines the general terms and
conditions for the provision of Material/ Services by Seller to Buyer. Specific
contracts for the purchase of Material/Services will be as negotiated between
Buyer and Seller. Such subordinate contracts to this General Agreement
(98005906) shall incorporate all the terms and conditions of this General
Agreement unless specifically addressed otherwise in such subordinate contracts.
Buyer and Seller agree that the term "Buyer" includes any of Buyer's affiliates,
and the term "Seller" shall mean either World Wide Technology, Inc. or its
Original Equipment Manufacturer (OEM) supplier, as applicable.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
1
<PAGE> 3
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
ACCEPTANCE--ENTIRE AGREEMENT
Acceptance of this offer to purchase by acknowledgment, shipment or other
performance will be unqualified, unconditional and subject and expressly limited
to the terms and conditions of this Agreement. All previous offers by Seller are
hereby rejected and Buyer will not be bound by terms additional to or different
from those contained herein that may appear in Seller's quotation,
acknowledgment, invoice or in any other communication from Seller, unless such
terms are expressly agreed to in a written instrument signed by Buyer.
Acceptance of MATERIAL or services, payment or any inaction by Buyer will not
constitute Buyer's consent to or acceptance of any such additional or different
terms, nor will estimates furnished by Buyer constitute commitments.
Upon acceptance, the terms contained in this Agreement will constitute the
entire agreement between Seller and Buyer with regard to the subject matter
hereof and supersede all prior oral and written communications, agreements and
understandings of the parties, if any, with respect thereto. THIS AGREEMENT MAY
NOT BE MODIFIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED ON BEHALF OF BOTH PARTIES
BY THE REPRESENTATIVES WHO SIGN THIS AGREEMENT OR THEIR SUCCESSORS IN TITLE AND
AUTHORITY. If either representative is no longer employed by Buyer/Seller or has
been demoted, or if the approval level no longer exists, a manager at a level
equal to or exceeding the original level must execute revisions to this
Agreement.
This Agreement may be executed in one (1) or more counterparts, all of which
will constitute one and the same instrument.
ACCESS
Buyer's Premises:
1. Seller shall when appropriate have reasonable access to Buyer's premises
during normal business hours and at such other times as may be agreed upon
by the parties in order to enable Seller to perform its obligations under
this Agreement. Seller shall coordinate such access with Buyer's designated
representative prior to visiting such premises. Seller assures Buyer that
only persons employed by Seller or subcontractor by Seller will be allowed
to enter Buyer's premises. If Buyer requests Seller or its Subcontractor
to discontinue furnishing any person provided by Seller or its
Subcontractor from performing work on Buyer's premises, Seller shall
immediately comply with such request. Such person shall leave Buyer's
premises promptly and Seller shall not furnish such person again to perform
work on Buyer's premises without Buyer's written consent.
2. Buyer may require Seller or its subcontractor employees to exhibit
identification credentials, which Buyer may issue in order to gain access
to Buyer's premises for the
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
2
<PAGE> 4
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
performance of Services hereunder. If, for any reason, any Seller's or
Seller's subcontractor employees are no longer performing such Services,
Seller shall immediately inform Buyer. Notification shall be followed by
the prompt delivery to Buyer of the identification credentials, if issued
by Buyer, or a written statement of the reasons why said identification
credentials cannot be returned.
3. Seller shall ensure that its personnel and subcontractor perform work which
conforms to Buyer's practices and handbooks to protect Material, buildings
or structures and to Perform Services with care and due regard for the
safety, convenience and protection of Buyer, its employees and property,
and members of the public.
4. In the event of theft or loss of property attributable to Seller, Seller
shall replace the property and/or reimburse Buyer for replacement value of
the item.
5. Seller shall be responsible for ensuring that all persons furnished by
Seller work harmoniously with all others when on Buyer's premises.
AFFILIATES
Seller agrees that an Affiliate may place Orders with Seller which incorporate
the terms and conditions of this Agreement, and that the term "Buyer" shall be
deemed to refer to an Affiliate when an Affiliate places an Order with Seller
incorporating the terms and conditions of this Agreement. An Affiliate will be
responsible for its own obligations, including but not limited to, all charges
incurred in connection with such Order. The parties agree that nothing in this
Agreement will be construed as requiring Buyer to indemnify Seller, or to
otherwise be responsible, for any acts or omissions of an Affiliate, nor shall
anything in this Agreement be construed as requiring an Affiliate to indemnify
Seller, or to otherwise be responsible, for the acts or omissions of Buyer.
The parties agree that the term "Affiliate" includes (1) a company, whether
incorporated or not, which owns, directly or indirectly, a majority interest in
either party (a "parent company"), and (2) a company, whether incorporated or
not, in which a 5% or greater interest is owned, either directly or indirectly,
by: (i) a party to this Agreement, or (ii) a parent of a party to this
Agreement."
AMENDMENTS AND WAIVERS
This Agreement may be amended or modified only by a written document signed by
the authorized representative of the party against whom enforcement is sought.
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement shall be construed as a general waiver or
relinquishment of such term, right or condition. Waiver by either party of any
default shall not be deemed a waiver of any other default.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
3
<PAGE> 5
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
ASSIGNMENT
Neither party hereto may assign, subcontract or otherwise transfer it's rights
or obligations under this Agreement except with the prior written consent of the
other party hereto, which consent will not be unreasonably withheld; provided,
however, Buyer will have the right to assign this Agreement to any present or
future AFFILIATE, SUBSIDIARY OR PARENT CORPORATION of the Buyer, without
securing the consent of Seller and may grant to any such assignee the same
rights and privileges Buyer enjoys hereunder. Any attempted assignment not
assented to in the manner prescribed herein, except an assignment confined
solely to money due or to become due, will be void. It is expressly agreed that
any assignment of money will be void if (a) Seller fails to give Buyer at least
thirty (30) days prior written notice thereof, or (b) such assignment imposes or
attempts to impose upon Buyer additional costs or obligations in addition to the
payment of such money or (c) denies, alters or attempts to alter any of Buyer's
rights.
BAR-CODING
Seller and/or its OEM supplier is committed to work with Buyer to incorporate
barcoding of equipment and shipping containers and packages, as a standard
requirement for doing business with Buyer. Seller and/or its OEM supplier shall
adhere to the guidelines and specifications set forth by the Telecommunications
Industry Forum (TCIF), tailored by Buyer, as industry standards are established
through the TCIF for the expanded application of bar-coding.
BREACH OF AGREEMENT
In the event Seller is in breach or default of any term, condition or covenant
of this Agreement, and said breach or default continues for a period of ten (10)
days after the giving of written notice thereof, then, in addition to all other
rights and remedies available at law or in equity, Buyer will have the right to
cancel this Agreement.
CANCELLATION AND TERMINATION
1. Cancellation for Default:
a. If Seller is in material default of any of its obligations under this
Agreement or applicable Orders and such default continues for ten (10)
days after written notice thereof is given by Buyer, then in addition
to all other rights and remedies, at law or in equity, Buyer may
cancel this Agreement and/or any Orders which may be affected by such
default without any obligation or liability on the part of Buyer
whatsoever.
b. Notwithstanding this paragraph "1", additional provisions for
Cancellation of Orders hereunder are set forth in this Agreement.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
4
<PAGE> 6
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
c. Buyer shall have the right to retain or return any Material already
received and accepted; provided, however, if Buyer elects to return
any Material, Seller shall reimburse Buyer the cost of shipping any
returned Material and amounts, if any, previously paid by Buyer for
such Material. Seller shall bear all expenses for removal and return
of such Materials.
2. Cancellation and Termination of Orders:
a. Cancellation:
If Buyer cancels any Order or rejects any Materials pursuant to any
provision of this Agreement or applicable Laws and Regulations, Seller
shall, at Buyer's request, but at its expense, promptly remove the
affected Materials from Buyer's site, restore Buyer's site to its
original condition, refund to Buyer any amounts previously paid by
Buyer for such Materials and reimburse Buyer for any costs Buyer
occurred to remove and return such Materials. Upon removal and
restoration of the Material and Buyer's receipt of any such
reimbursement and refund, title to any such Materials which had
previously passed to Buyer shall revert to Seller.
b. Termination:
Materials/Services: Buyer may at any time terminate any Order in whole
or in part upon written notice to Seller. In such event, Seller shall
be entitled to reasonable Termination charges consisting of its actual
and direct costs incurred to provide the Materials and Services
ordered by Buyer but no more than a percentage of the work performed
or Materials delivered prior to Termination, minus salvage or resale
value of the work terminated. If requested, Seller agrees to
substantiate such costs with proof satisfactory to Buyer. In no event
shall the Termination charges on any Order hereunder exceed the Order
price. No Termination charges shall apply to Materials not specially
manufactured for Buyer pursuant to any Order which is terminated at
least thirty (30) days prior to the required delivery date. Buyer
shall not be responsible for any work performed nor for any costs
incurred by Seller, Seller's Sellers, or Seller's subcontractors after
Seller has received the notice of Termination. After the receipt of
Buyer's payment for any such terminated Services, Seller shall deliver
the physical embodiments, if any, of such Services which have been
completed up to the date of Buyer's Termination. The foregoing
Termination charges state the entire liability of Buyer for
Termination for convenience by Buyer of any Order hereunder.
3. Partial Cancellation and Termination:
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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Where a provision of this Agreement or the applicable Laws and Regulations
permit Buyer to Terminate or Cancel an Order, such termination or
cancellation may, at Buyer's option, be either complete or partial. In the
case of a partial Termination or Cancellation Buyer may, at its option,
accept a portion of the Materials or Services covered by an Order and pay
Seller for such Materials or Services at the unit prices set forth in such
Order. The right to cancel an Order shall also include the right to cancel
any other related Order.
CHANGES AND SUSPENSIONS
a) Buyer may give notice to Seller at any time before complete delivery is
made under any Order, or make changes within the general scope of such
Order, including changes to quantities, drawings, designs or
specifications. In addition, Buyer may, by notice to Seller, suspend, in
whole or in part, the delivery of Materials and the performance of
Services. If Buyer directs any such
b) change or suspension, the parties shall agree upon any necessary
adjustments in prices or dates and Buyer shall issue a revised Order
reflecting such adjustments.
c) Seller and/or its OEM supplier may not, without Buyer's prior written
consent, make any changes whatsoever with respect to the Materials or
Services specified in any Order.
COMPLAINTS
Buyer reserves the right to notify Seller in cases where Buyer has identified
current or potential problems or service area concerning the operation,
maintenance, engineering, installation or design of Material furnished
hereunder. Whenever Buyer exercises such right, Seller and/or its OEM supplier
agrees to:
(a) Accept such notice (hereinafter referred to as an "Engineering Complaint")
and handle it in accordance with Bell Communications Research, Inc.
("Bellcore") Generic Requirements GR-230-CORE entitled "Generic
Requirements for Engineering Complaints".
(b) Acknowledge receipt of such Engineering Complaint and advise Buyer of
Seller's proposed organization responsible for resolving it within ten (10)
working days of Seller's receipt thereof.
(c) Resolve such Engineering Complaints within ninety (90) days calendar days
of the date of Buyer's notice, unless the parties mutually agree upon a
later date. If unable to resolve an Engineering Complaint within said
ninety (90)-day period, Seller will issue an "interim report" as defined in
GR-230-CORE. Any revisions, amendments, and or successors to GR-230-CORE
will become effective and thereafter applicable under this
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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Agreement thirty (30) days after such revision is released by Buyer to
Seller. Buyer and Seller will attempt to negotiate a resolution to any
objections of said revisions by Seller.
(d) Furnish to Buyer a monthly report of the status of open Engineering
Complaints, in a mutually agreed upon medium, together with a proposed
schedule for their resolution.
(e) Notify Buyer in writing when an Engineering Complaint has been resolved.
COMPLIANCE WITH LAWS
Seller and/or its OEM supplier shall comply with the provisions of the Fair
Labor Standards Act, the Occupational Safety and Health Act and all other
applicable federal, state, county and local laws, ordinances, regulations and
codes, including, but not limited to, the procurement of permits, certificates,
approvals, inspections and licenses when needed, in the performance of this
Agreement. Seller and/or its OEM supplier further agrees, during the term
hereof, to comply with all applicable Executive and Federal regulations as set
forth in "Executive Orders and Associated Regulations", a copy of which is
attached hereto as Exhibit A, and by this reference made a part hereof. Seller
and/or its OEM supplier shall defend, indemnify and hold Buyer harmless from and
against any loss, damage, liability or expenses (including attorneys' fees and
court costs) that may be sustained by reason of Seller's failure to comply
herewith.
CONFLICT OF INTEREST
Seller represents and warrants that no officer, director, employee or agent of
Buyer has been or will be employed, retained or paid a fee, or otherwise has
received or will receive any personal compensation or consideration, by or from
Seller or any of Seller's officers, directors, employees or agents in connection
with the obtaining, arranging or negotiation of this Agreement or other
documents or agreements entered into or executed in connection herewith.
CONTINUING AVAILABILITY
a) Seller and/or its OEM supplier agrees to offer to sell to Buyer for a
period of ten (10) years after the Termination, Cancellation or expiration
date of this Agreement, functionally equivalent additions/modifications,
maintenance, replacement, and technical support services.
b) If Seller fails or is unable to supply such parts or obtain another source
of supply for Buyer, then such inability shall be considered noncompliance
with this Section and, in addition to whatever other rights and remedies
Buyer may have at law or in equity, Seller shall be obligated to provide
Buyer, without obligation or charge, the "technical information" or any
other rights required so that Buyer can have manufactured or can obtain
such parts from other sources.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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c) The "technical information" includes, by example and not by way of
limitation:
1) manufacturing drawings and Specifications of raw materials and
components comprising such parts;
2) manufacturing drawings and Specifications covering special tooling and
the operation thereof,
3) a detailed list of all commercially available parts and components
purchased by Seller, disclosing the part number, name and location of
the supplier and price lists for the purchase thereof.
d) Seller shall provide support for System Software or System Software
Features provided under this Agreement. In the event Seller refuses to
provide support then Seller shall grant to Buyer a non-exclusive license,
without charge, to use such System Software programs, System Software
documentation and/or System Software tools and other technical information
as may be required for the purpose of so maintaining the System Software
and to provide for network compatibility.
e) Seller shall provide Buyer advance written notification no later than two
(2) years prior to the discontinuance of the manufacture or the provision
of any Material hereunder.
CURE
Buyer will not be deemed to be in default under any of the terms of this
Agreement, and Seller may not seek or attempt to enforce any remedy for any
claimed default, unless Buyer fails to cure or correct same within ten (10) days
following receipt of written notice thereof from Seller.
DISASTER AVAILABILITY
If any Material are rendered inoperative as a result of a Force Majeure
emergency, Seller shall make all reasonable efforts to supply or help locate
backup or replacement Material for Buyer's use. To the extent reasonable, Seller
agrees to waive any delivery lead time requirements and to the extent permitted
by law make replacement Material available from the facility currently producing
such Material or from inventory. The price for any replacement Material will be
at the current price and cost of expedited shipment. Buyer shall retain the
right to accept or reject any offer by Seller to supply any replacement
Material.
ELECTRONIC DATA INTERCHANGE (EDI)
Each party hereto may electronically transmit to or receive Orders,
acknowledgments, invoicing documents or other documents mutually agreed to by
Buyer and Seller, pursuant an EDI Agreement. The parties agree that Data
mechanically stored by either party in the course of
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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business shall constitute acceptable documentation of the contents of the Data
electronically transmitted by originating party.
ENTIRE AGREEMENT
1. Acceptance of this Agreement with respect to the subject matter to purchase
by acknowledgment, shipment or other performance will be unqualified,
unconditional and subject and expressly limited to the terms and conditions of
this Agreement. All previous offers by Seller are hereby rejected and Buyer will
not be bound by terms additional to or different from those contained herein
that may appear in Seller's quotation, acknowledgment, invoice or in any other
communication from Seller, unless such terms are expressly agreed to in a
written instrument signed by Buyer. Acceptance of MATERIAL or Services, payment
or any inaction by Buyer will not constitute Buyer's consent to or acceptance of
any such additional or different terms, not will estimates furnished by Buyer
constitute commitments. The provisions of this Agreement supersede all prior
oral and written quotations, communications, agreements and understandings of
the parties, if any, with respect to the subject matter hereof.
2. The terms contained in this Agreement, and any Orders, including all
exhibits and subordinate documents attached to or referenced in the
Agreement or any Orders, will constitute the entire agreement between
Seller and Buyer with regard to the subject matter hereof and supersede all
prior oral and written communications, agreements and understandings of the
parties, if any, with respect hereto. This Agreement may not be modified
except by a written instrument signed on behalf of both parties by the
representatives who sign this Agreement or their successors in title and
authority.
If either representative is no longer employed by Buyer/Seller or has been
demoted, or if the approval level no longer exists, a manager at a level equal
to or exceeding the original level must execute revisions to this Agreement.
FORCE MAJEURE
Neither party hereto will be held 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, explosion, war, strike, embargo, government
requirement, civil or military authorities, Act of God or by the public enemy,
acts or omissions of carriers, or any other cause beyond the control of Seller
or Buyer. If any force majeure condition occurs, the party delayed or unable to
perform will give immediate notice thereof to the other party and the party
affected by the other's inability to perform may elect to:
(a) Terminate this Agreement or any Order or part of either as to MATERIAL
not already shipped or services not already performed.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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(b) Suspend this Agreement for the duration of the force majeure
condition, buy or sell elsewhere MATERIAL to be bought or sold
hereunder, and deduct from any commitment the quantity bought or sold
or for which such commitments have been made elsewhere.
(c) Resume performance hereunder once the force majeure condition ceases
with an option in the affected party to extend the term of this
Agreement up to the length of time the force majeure condition
endured.
Unless written notice to the contrary is given within thirty (30) days after
such affected party is notified of the force majeure condition, option (b) above
will be deemed selected.
GOVERNING LAW
a. IF A DISPUTE INVOLVES SOLELY PACIFIC BELL OR AFFILIATES WITH THEIR
PRINCIPAL PLACE OF BUSINESS IN CALIFORNIA, THE DISPUTE SHALL BE
GOVERNED BY THE LAWS OF CALIFORNIA EXCLUSIVE OF ITS CHOICE OF LAWS
PROVISIONS. IN ALL OTHER CASES, THE LAWS OF THE STATE OF MISSOURI
SHALL APPLY EXCLUSIVE OF ITS CHOICE OF LAWS PROVISIONS.
b. THIS AGREEMENT SHALL BE CONSIDERED COMPLETED, ENTERED INTO, AND
EXECUTED IN CALIFORNIA ON BEHALF OF PACIFIC, IN MISSOURI, ON BEHALF OF
SWBT, AND WITH RESPECT TO AN AFFILIATE OTHER THAN PACIFIC OR SWBT, IN
THE STATE IN WHICH THE AFFILIATE HAS ITS PRINCIPAL PLACE OF BUSINESS,
WITHOUT REGARD TO ITS RULES REGARDING CONFLICTS OF LAW.
GOVERNMENT CONTRACT PROVISIONS
Orders containing a notation that the material is intended for use under
government Agreements shall be subject to the then current government provisions
referenced in or attached to such Orders.
HAZARDOUS MATERIALS AND REGULATED SUBSTANCES
A "Regulated Substance" as referenced in this clause is a generic term used to
describe all materials that are regulated by the federal or any state or local
government during transportation, handling and/or disposal.
This includes, but is not limited to, materials that are regulated as (a)
"hazardous materials" under the Hazardous Materials Act and the Control of
Radioactive Contamination of the Environment Law, Title 8 of the California
Administrative Code, Section 5194, pursuant to the
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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Hazardous Substances Information and Training Act, (b) "chemical hazards" under
Occupational Safety and Health Administration (OSHA) standards, (c) "chemical
substances or mixtures" under the Toxic Substances Control Act, (d) "pesticides"
under the Federal Insecticide, Fungicide and Rodenticide Act, and (e) "hazardous
wastes" as defined or listed under the Resource Conservation and Recovery Act
and the Hazardous Waste Control Law.
a. Seller and/or its OEM supplier shall comply with all applicable
federal, state and local laws, ordinances, codes, regulations and
orders, including any notice requirements (individually and
collectively "Laws and Regulations"), regarding any Material and
Service ordered hereunder which involves the handling or use of
Materials or materials which consist of or contain "hazardous
materials" or "chemical hazards" or "chemical substances or mixtures"
or "pesticides" or "hazardous wastes". Seller shall notify Buyer and
provide to Buyer all necessary notification and other information
(including but not limited to OSHA Material Safety Data Sheets) at
least thirty (30) days before shipping such Regulated Substances to
Buyer or commencing the performance of Services for Buyer involving
the handling or use of Regulated Substances.
b. Notwithstanding any other provisions of this Agreement, Buyer shall
have the right, but not the duty, to terminate without liability any
Order for Materials or Services which involves the handling or use of
Regulated Substances within thirty (30) days after such notification
from Seller. Otherwise, Buyer and Seller shall cooperate concerning
the acceptance by Buyer of such Regulated Substances. Seller shall
mark all Materials and/or materials provided hereunder as Regulated
Substances which are required by all applicable Laws and Regulations
to be so marked, and shall provide assistance to Buyer of an advisory
nature in the handling or use of Regulated Substances provided
hereunder and the disposal of "hazardous wastes", as defined by
applicable Laws and Regulations ("Hazardous Wastes"), resulting
therefrom.
c. Regulated Substances and/or Hazardous Wastes provided or removed
hereunder shall be transported by Seller in accordance with the
requirements of the applicable Laws and Regulations, including, but
not limited to, those of the Department of Transportation and
California Highway Patrol, governing transportation of such Regulated
Substances and/or Hazardous Wastes.
d. Seller and/or its OEM supplier shall provide Buyer with the same
information pertaining to Materials and Services which involve the
handling or use of Regulated Substances or Hazardous Wastes as Seller
provides to Seller's employees or agents involved in the disposition
or treatment of such Regulated Substances or Hazardous Wastes.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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e. Seller and/or its OEM supplier further agrees to defend indemnify and
hold Buyer harmless from and against any damage, or expense (including
attorneys' fees and court costs) sustained by Buyer because of
Seller's noncompliance herewith.
INDEPENDENT CONTRACTOR
Seller hereby represents and warrants to Buyer that:
a. Seller is engaged in an independent business and will perform all
obligations under this Agreement as an independent contractor and not as the
agent or employee of Buyer;
b. Seller's personnel performing Services shall be considered solely the
employee personnel of Seller and not employees or agents of Buyer,
c. Seller has and retains the right to exercise full control of and
supervision over the performance of the Services and full control over the
employment, direction, assignment, compensation, and discharge of all personnel
performing the Services;
d. Seller is solely responsible for all matters relating to the payment of
compensation, including payment of premium pay for overtime, of all Seller's
personnel who perform Services. Seller will pay all employee compensation and
related taxes and benefits from its own accounts, without regard to any dispute
concerning Buyer's liability for payment to Seller under any invoice related to
any Service performed by Seller;
e. Seller is solely responsible for all matters relating to compliance with
all employer obligations to withhold employee taxes, pay employee and employer
taxes, and file payroll tax returns and information returns under local, state,
and federal income tax laws, unemployment compensation insurance and state
disability insurance tax laws, and social security and Medicare tax laws, and
all other payroll tax laws or similar laws (all collectively hereinafter
referred to as "payroll tax obligations") with respect to all Seller personnel
providing Services.
f. If any federal, state, or local authority including but not limited to
taxing authority may claim that Buyer or any subsidiary of Buyer is or may be
liable an account of any payroll, payroll tax, or benefit plan obligations,
including the payment of interest or penalties, with respect to any such Seller
personnel, then Seller shall:
(1) cooperate fully in Buyer's defense of such claim; and (2)
discloses its income tax returns, payroll tax returns,
information returns and transmittals, and associated payment
deposits records, canceled checks and instruments, and other such
documents reasonably necessary to enable Buyer to perfect its
defense of such claims; and
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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(2) Executes and deliver such powers of attorney or other consents as
may be necessary to enable Buyer to obtain copies of such returns
and other documents from the taxing and other authorities that
are appropriate or helpful in order to prove compliance with tax
and other legal requirements.
(3) indemnifies and holds Buyer harmless from any cost, loss damage
or expense, including taxes as well as any interest or penalties;
g. Seller is and will respond as the employer of all Seller personnel,
exclusive of Buyer, for purposes of any federal, state, or local taxes, benefits
and unemployment insurance law. Seller will indemnify and hold Buyer harmless
from any claim that Buyer's reserve account should be taxed to provide
unemployment compensation to any Seller personnel or former Seller personnel
based upon Services provided to Buyer under this Agreement;
h. If any Seller personnel makes a claim for employee benefits under any
Buyer employee benefit plan or for workers' compensation against Buyer, then
Seller will indemnify and hold harmless Buyer from any such claim, including any
and all costs an expenses, including interest and penalties;
i. Seller's employee benefit, plans and self-employed benefit plans will
credit Seller's personnel with all for time worked on Buyer assignments and all
compensation earned on Buyer assignments for plan participation purposes,
vesting purposes, and benefit accrual purposes, on the same basis as they credit
time worked on other assignments; and
j. Seller will be responsible to its own acts and those of Seller's
personnel during the performance of Seller's obligations under this Agreement.
INFORMATION
INFORMATION - BUYER'S
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical or business information or data, field
trials results and/or reports, written, oral or otherwise (all hereinafter
designated in this clause as "information") furnished to Seller under this
Agreement or in contemplation of this Agreement, shall remain Buyer's property.
All copies of such information, in written, graphic or other tangible form,
shall be returned to Buyer at Buyer's request. Unless such information was
previously know to Seller free of any obligation to keep it confidential, or has
been or is subsequently made public by Buyer or a third party, it shall be kept
confidential by Seller, shall be used only in performing under this Agreement,
and may not be used for other purposes except such terms as may be agreed upon
between Seller and Buyer in writing.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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INFORMATION - SELLER'S
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical or business information or data, field
trials results and/or reports, written, oral or otherwise (all hereinafter
designated in this clause as "information") furnished to Buyer under this
Agreement or in contemplation of this Agreement, shall remain Seller's property.
No information furnished by Seller to Buyer hereunder or in contemplation hereof
shall be considered to be confidential or proprietary unless it is conspicuously
marked as such.
If Seller provides Buyer with any proprietary or confidential information which
is conspicuously marked as such, Buyer shall use the same degree of care to
prevent its disclosure to others as Buyer uses with respect to its own
proprietary or confidential information. Notwithstanding the preceding
sentences, no installation, operations, repair or maintenance information of
Seller which pertains to the Material and Services which are the subject of this
Agreement shall be considered to be proprietary or confidential, and Buyer may
disclose such information to others for the purpose of installing, operating,
repairing, and maintaining the Material for which it was initially furnished.
INFRINGEMENT
1. Seller and/or its OEM supplier agrees to indemnify and hold Buyer harmless
from and against any loss, liability, damage or expense (including
increased damages for willful infringement, punitive damages, attorneys'
fees and court costs) that may result by reason of any infringement, or
claim of infringement, of any trade secret, patent, trademark, copyright or
other proprietary interest of any third party based on the normal use or
installation of any Material, Software, Documentation, program or Services
furnished to Buyer hereunder, except to the extent that such claim arises
from Seller's compliance with Buyer's detailed instructions. Such exception
will not, however, include:
(a) Merchandise available on the open market or the same as such
merchandise.
(b) Items of Seller's origin, design or selection.
2. Seller warrants that it has made reasonable independent investigation
(including obtaining legal opinions) to determine the legality of its right to
product and sell the Material/Equipment/Services provided herein.
3. If an injunction or order is obtained against Buyer's use of any Material,
Software, Documentation, program or Service, or if in Seller's opinion any
Material, Software, Documentation, program or Service is likely to become the
subject of a claim of infringement, Seller will, at its expense:
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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(a) Procure for Buyer the right to continue using the Material, Software,
Documentation, Program or Service; or
(b) After consultation with Buyer, replace or modify the Material,
Software, Documentation, program or Service to make it a substantially
similar, functionally equivalent, non-infringing Material, Software,
Documentation, program or Service.
3. If the Material, Software, Documentation, program or Service is purchased
or licensed and neither (1) or (2) above is possible, Buyer may cancel the
applicable Order and require Seller to remove such Material, Software,
Documentation, program or Service from buyer's location and refund any
charges paid therefor by Buyer.
4. In no event will Buyer be liable to Seller for any charges after the date
that Buyer no longer uses and Material, Software, Documentation, program or
Service because of actual or claimed infringement.
6. Each party hereto agrees to defend or settle, at its own expense, any
action or suit against the other party hereto for which it is responsible
under this clause. Each party further agrees to notify the other party
promptly of any claim of infringement for which the other party is
responsible hereunder and cooperate in every reasonable way to facilitate
the defense thereof.
7. In the event the Seller, after notification of any claim for which Seller
is responsible, does not assume the defense of such action, Seller will
reimburse buyer for all of its costs incurred in the defense of the claim,
including, but not limited to attorneys' fees and interest on such Buyer's
payment of said amounts from he date of Buyer's payments of said amounts.
INSIGNIA
Upon Buyer's written request, Seller will affix certain of Buyer's trademarks,
trade names, insignia, symbols, decorative designs or evidences of Buyer's
inspection (hereafter collectively called "Insignia") to the MATERIAL furnished
hereunder. Such Insignia will not be affixed, used or otherwise displayed on or
in connection with the MATERIAL without Buyer's prior written approval.
The manner in which such Insignia will be affixed must be approved in writing by
Buyer. Seller agrees to remove all Insignia from MATERIAL rejected or not
purchased by Buyer prior to any sale, use or disposition thereof by Seller.
Seller further agrees to defend, indemnify and hold Buyer harmless from and
against any claim, loss, damage or expense (including attorneys' fees and court
costs) arising out of Seller's failure to do so.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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This clause will in no way alter or modify Seller's obligations under the clause
entitled "USE OF INFORMATION".
INSTALLATION/CUTOVER ASSISTANCE
If requested by Buyer, Seller and/or its OEM supplier agrees to make available
at the installation site, without charge, a field engineer to render
installation and cutover assistance as required by Buyer for the initial
installation/cutover in each of Buyer's operating areas.
INSURANCE
1. With respect to performance hereunder, and in addition to Seller's and/or its
OEM supplier's obligation to indemnify, Seller agrees to maintain, at all times
during the term of this Agreement, the following minimum insurance coverages and
limits and any additional insurance and/or bonds required by law:
a. Workers' Compensation insurance with benefits afforded under the laws
of the state in which the Services are to be performed and Employers
Liability insurance with minimum limits of $100,000 for Bodily
Injury-each accident, $500,000 for Bodily Injury by disease-policy
limits and $100,000 for Bodily Injury by disease-each employee.
b. Commercial General Liability insurance with minimum limits of:
$2,000,000 General Aggregate limit; $1,000,000 each occurrence
sub-limit for all bodily injury or property damage incurred in any one
occurrence; $1,000,000 each occurrence sub-limit for Personal Injury
and Advertising; $2,000,000 Products/Completed Operations Aggregate
limit, with a $1,000,000 each occurrence sub-limit for
Products/Completed Operations. Fire Legal Liability sub-limits of
$300,000 are required for lease agreements.
SBC will be named as an Additional Insured on the Commercial General
Liability policy.
c. If use of a motor vehicle is required, Automobile Liability insurance
with minimum limits of $1,000,000 combined single limits per occurrence for
bodily injury and property damage, which coverage shall extend to all
owned, hired and non-owed vehicles.
SBC requires that companies affording insurance coverage have a B+ VII or better
rating, as rated in the A.M. Best Key rating Guide for Property and Casualty
Insurance Companies.
2. A certificate of insurance stating the types of insurance and policy limits
provided the Seller must be received prior to commencement of any work. If a
certificate is not received, Seller hereby authorizes Buyer, and Buyer may, but
is not required to, obtain insurance on behalf
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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of Seller as specified herein. Buyer will either invoice Seller for the costs
incurred to so acquire insurance or will reduce by an applicable amount any
amount owed to Seller.
3. The cancellation clause on the certificate of insurance will be amended to
read as follows:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED OR MATERIALLY
CHANGED, THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER."
The Seller shall also require all subcontractors who may enter upon the work
site to maintain the same insurance requirements listed above. Additional
insurance responsibilities and obligations of OEM's are contained in Exhibit C
attached hereto and incorporated herein by this reference.
LIABILITY
1. Seller and/or its OEM supplier shall indemnify, defend and hold harmless
Buyer (including its agents, employees, officers, and directors) from and
against any and all liability, loss, damage, court cost, attorneys' fees or
other expense of any kind which arises out of any claim, demand, suit for
damages, injunction or other relief, on account of (a) injury to or death
of any person, (b) damage to any property, including theft , (c) public
charges and penalties, or (d) any lien, caused by, resulting from or
attributable to the Materials or Services or the acts or omissions of the
Seller (including any of its employees, agents, or subcontractors but
excepting the active negligence or willful misconduct solely of Buyer or
its employees) in furnishing the Materials or Services hereunder. This
indemnity shall survive the delivery, inspection and acceptance of the
Materials or Services hereunder.
2. Seller agrees to defend Buyer, at no cost or expense to Buyer, against any
such liability, claim, demand, suit or legal proceeding. Buyer agrees to notify
Seller within a reasonable time of any written claims or demands against Buyer
for which Seller is responsible under this clause.
3. Seller agrees not to implead or bring any action against Buyer or Buyer's
employees based on any claim by any person for personal injury or death that
occurs in the course or scope of employment of such person by Seller and that
arises out of the Material or Services furnished under this Agreement.
LICENSES
No licenses, express or implied, under any patents are granted by Buyer to
Seller under this Agreement.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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LICENSE FEE
Except as otherwise specified in the applicable Order, the license fee for
Standard Software is included in the purchase price of the Material.
LICENSE TERM
The perpetual license or license term shall commence on the date when Buyer
accepts the Software. Unless the Order is sooner Canceled or Terminated as
provided herein, a license shall continue for the initial license term specified
in the applicable Order and thereafter as renewed until the Order is Canceled or
Terminated as provided herein.
LIMITATION OF LIABILITY
SBC will not be liable for consequential, incidental, special, or punitive
damages, or for loss of revenue or profit in connection with the performance or
failure to perform this Agreement regardless whether such liability arises from
breach of contract, tort, or any other theory of liability.
MATERIAL RELIABILITY
Seller and/or its OEM supplier commits to test all Material, including Original
Equipment Manufacture (OEM) Material prior to release to Buyer. Such testing
shall include complete regression and interaction testing of all Software and
patches. Seller commits to release Material without any critical or major
issues/faults. Material reliability is demonstrated through zero quality alerts
and requests for material disposition.
MODIFICATION
a) Buyer shall have the absolute right to make any alterations, variations,
modifications, additions or improvements to the source code for Software
licensed hereunder at its own risk and expense or Agreement with third
parties for such modifications and such modifications by third parties
shall be subject to the nondisclosure provisions of this Agreement. The
conditions and charges, if any, for Seller support of such modifications
shall be subject to agreement between Buyer and Seller.
Any unmodified portion of such modified Software shall be subject to the same
conditions and limitations to have been designated herein for original Software
and Documentation. Title to any such addition or modifications shall remain with
Buyer.
b) Buyer may merge the Software with other computer programs to generate a
shared program library. After Cancellation or Termination of the license
for the Software, such Software shall be removed from such shared program
library and shall be destroyed.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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c) Any Software modification made by Seller at the request and expense of
Buyer shall be governed by the provisions of a separate custom software
development agreement between the parties.
MBE/WBE-DVBE PARTICIPATION PLANS AND REPORTS
Seller commits to goals for the participation of M/WBE and DVBE firms (as
defined in the Section entitled "MBE/WBE/DVBE Cancellation Clause) as follows:
15% annual MBE participation; 5% annual WBE participation; and 1.5% annual DVBE
participation. These goals apply to all annual expenditures by any entity
pursuant to this Agreement with Seller.
Attached hereto and incorporated herein as Exhibit A1 is Seller's completed
Participation Plan outlining its M/WBE-DVBE goals and specific and detailed
plans to achieve those goals. Seller will submit an updated Participation Plan
annually by the first week in January. Seller will submit M/WBE-DVBE Results
Reports quarterly by the end of the first week following the close of each
quarter, using the form attached hereto and incorporated herein as Exhibit B1.
Participation Plans and Results Reports will be submitted to the Prime Supplier
Results Manager.
MBE/WBE/DVBE CANCELLATION CLAUSE
a. Seller agrees that falsification or misrepresentation of, or failure to
report a disqualifying change in, the MBE/WBE/DVBE status of Seller or any
subcontractor utilized by Seller; or Seller's failure to comply in good faith
with any MBE/WBE/DVBE utilization goals established by Seller; or Seller's
failure to cooperate in any investigation conducted by SBC, or by SBC's agent,
to determine Seller's compliance with this section, will constitute a material
breach of this Agreement. In the event of any such breach, SBC may, at its
option, cancel ("Cancel") this Agreement upon 20 days notice. Seller
acknowledges and agrees that SBC's right to Cancel is absolute and
unconditional, and SBC shall not be subject to liability, nor shall Seller have
any right to suit for damages as a result of such cancellation.
b. For purchases under this Agreement by Pacific Bell, Pacific Bell
Directory, Pacific Bell Mobile Services, Pacific Bell Information Services,
Pacific Bell Communications, and any other entity operating principally in
California (collectively "California Affiliates"), Minority and Women Business
Enterprises (MBEs/WBEs) are defined as businesses which satisfy the requirements
of paragraph c. below and are certified as MBEs/WBEs by the California Public
Utilities Commission Clearinghouse ("CPUC-certified").
For purchases under this Agreement by any entity that is not a California
Affiliate, MBEs/WBEs are defined as businesses which satisfy the requirements of
paragraph c. below and are either CPUC-certified or are certified as MBEs/VBEs
by a certifying agency recognized by SBC.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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c. MBEs/WBEs must be at least 51% owned by a minority individual or group
or by one or more women (for publicly-held businesses, at least 51% of the stock
must be owned by one or more of those individuals), and the MBEs/WBEs'
management and daily business operations must be controlled by one or more of
those individuals, and these individuals must be either U.S. citizens or legal
aliens with permanent residence status. For the purpose of this definition,
minority group members include male or female Asian Americans, Black Americans,
Filipino Americans, Hispanic Americans, Native Americans (i.e., American
Indians, Eskimos, Aleuts and Native Hawaiians), Polynesian Americans, and
multi-ethnic (i.e., any combination of MBEs and WBEs where no one specific group
has a 51% ownership and control of the business, but when aggregated, the
ownership and control combination meets or exceeds the 51% rule). "Control" in
this context means exercising the power to make policy decisions. "Operate" in
this context means actively involved in the day-to-day management of the
business and not merely acting as officers or directors.
d. For purchases under this Agreement by California Affiliates, Disabled Veteran
Business Enterprises (DVBEs) are defined as business concerns that satisfy the
requirements of paragraph e. below and are certified as DVBEs by the California
State Office of Small and Minority Business (OSMB). The DVBE must be a resident
of the State of California, and must satisfy the requirements of paragraph e.
below.
For purchases under this Agreement by any entity that is not a California
Affiliate, DVBEs are defined as any business concern that satisfies the
requirements of paragraph e. below and is either a defined DVBE for purchases by
California Affiliates, or is certified as a DVBE by a certifying agency
recognized by SBC.
e. The DVBE must be (1) a sole proprietorship at least 51% owned by one or
more disabled veterans; or (2) a publicly-owned business in which at least 51%
of the stock is owned by one or more disabled veterans; or (3) a subsidiary
which is wholly owned by a parent corporation, but only if at least 51% of the
voting stock of the parent corporation is owned by one or more disabled
veterans; or (4) a joint venture in which at least 51% of the joint venture's
management and control and earnings are held by one or more disabled veterans.
In each case, the management and control of the daily business operations must
be by one or more disabled veterans. A disabled veteran is a veteran of the
military, naval or air service of the United States with a service-connected
disability. "Management and control" in this context means exercising the power
to make policy decisions and actively involved in the day-to-day management of
the business and not merely acting as officers or directors.
NON-EXCLUSIVE MARKET RIGHTS
It is expressly understood and agreed that this Agreement does not grant Seller
an exclusive privilege to provide to Buyer any or all Material and Services of
the type described in this Agreement nor requires the purchase of any products
or services from Seller by Buyer. It is,
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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therefore, understood that Buyer may Contract with other manufactures and
suppliers for the procurement or trial of comparable products and services and
that Buyer may itself perform the Services described herein.
NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement will be construed as a waiver of such term,
right or condition. The waiver by Buyer in one instance of any default of Seller
hereunder will not be deemed a waiver of any other default of Seller. The
express provision herein for certain rights and remedies of Buyer are in
addition to any other legal and equitable rights and remedies to which Buyer
would otherwise be entitled.
NOTICES
Except as otherwise provided in this Agreement, or applicable Order, all notices
or other communications hereunder shall be deemed to have been duly given when
made in writing and either 1) delivered in person, 2) delivered to an agent,
such as an overnight or similar delivery service, or 3) deposited in the United
States Mail, postage prepaid, or 4) facsimile transmission, and addressed as
follows:
To: (World Wide Technology, Inc.) To: (Affiliate Name)
(127 Weldon Parkway) (Affiliate street address)
(St. Louis, Missouri 63043-3101) (Affiliate city, state, Zip)
Attn.: Mark Catalano (314) 919-1501
(Attn:____________________
To: (Southwestern Bell Telephone Company)
(530 McCullough rm. 2-MO2)
(San Antonio, Texas 78215)
Attn.: Tony Riojas (210) 886-3370
The address to which notices or communications may be given by either party may
be changed by written notice given by such party to the other pursuant to this
paragraph entitled "Notices".
ORDER ACKNOWLEDGMENT
a. Seller agrees to send to Buyer's Local Purchasing Organization ("LPO")
identified on the Order two (2) copies of an Acknowledgment for all Material to
be furnished hereunder at least thirty (30) days prior to the scheduled shipment
date thereof. Such Acknowledgment will identify:
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
1) All Material to be provided with the appropriate Continuing Property
Record ("CPR") number thereof.
2) All non-hardwired Material (plug-ins) listed thereon with the Common
Language Equipment Identifier ("CLEI") coding, item number, unit
description, unit quantity and price.
b. All hardwired equipment, plug-ins, tools and test sets contained in kits or
assemblies must be listed separately with appropriate CPR numbers and/or
CLEI codes, unit quantities and unit prices. The only items in kits and
assemblies that do not need to be listed separately are miscellaneous minor
items not coded by Bellcore. The unit description, CPR number and CLEI code
must exit in Bellcore's National Property Record Catalog ("NPRC') and
Equipment Catalog System ("ECS") data bases, and the item numbers and
descriptions on Seller's invoices must match the item numbers and
description on the acknowledgment.
PLANT AND WORK RULES
Each party's employees and agents will, while on the premises of the other or at
any other location while performing SERVICES under this agreement for SWBT,
comply with all plant rules and regulations, including, but not limited to, the
section of SBC Communications' "Code of Business Conduct," a copy of which is
available upon request, which prohibits the possession of any weapon or
implement which might be used as a weapon on SWBT properties. In addition, the
parties agree that, where required by government regulations, it will submit
satisfactory clearance from the U.S. Department of Defense and/or other federal
authorities concerned.
PUBLICITY
Seller agrees not to advertise, or otherwise make known to others, any
information regarding this Agreement. Seller further agrees not to use in any
advertising or sales promotion, press releases or other publicity matters any
endorsements, direct or indirect quotes, or pictures implying endorsement by
Buyer or any of its employees without Buyer's prior written approval. Seller
will submit to Buyer for written approval, prior to publication, all publicity
matters that mention or display Buyer's name and/or marks or contain language
from which a connection to said name and/or marks may be inferred or implied.
PURCHASE ORDERS
a. Purchase Orders submitted by Buyer against this Agreement will be placed on
Buyer's Purchase Order form, a copy of which is attached thereto as Exhibit B,
and by this reference made a part hereof. The typed or written provisions on
Buyer's Orders will be incorporated into
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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this Agreement, but printed provisions on the reverse side thereof will be
deemed deleted. Such Orders will specify:
1) A description of the Material, including any numerical/alphabetical
identification referenced in the price list attached hereto (Exhibit
B). 2) The requested delivery date. 3) The applicable price(s). 4) The
location to which the Material is to be shipped. 5) The location to
which invoices are to be rendered for payment. 6) Buyer's Order
number.
b. Orders will be deemed accepted by Seller unless written notice to the
contrary is received by Buyer within thirty (30) days from Seller's receipt
thereof. Such notice will be given to Buyer in care of the address indicated on
the acknowledgment copy of the Order.
c. Inquiries relating to Orders, information requests, etc. should be directed
as indicted in the subordinate contracts.
QUALITY ASSURANCE
1. Seller and/or its OEM supplier represents and warrants that it is
registered to ANSI/ASQC Q9001 or Q9002 (1994).
2. Seller and/or its OEM supplier hereby agrees that HARDWARE and/or SOFTWARE
furnished hereunder by Seller has undergone or has been subject to: a.)
Seller's quality control activities and procedures, including any
performance measurements, testing, quality process reviews or inspections
to implement such procedures; and b.) Will meet the following requirements
of the Bellcore documents and subsequent issues thereof listed below:
o TR-NWT-000179 - "Quality System Generic Requirements for
Software"
o GR-282-CORE - "Software Reliability and Quality Acceptance
Criteria (SRQAC)"
o GR-929-CORE - "Reliability and Quality Measurements for
Telecommunications Systems (RQMS)"
o GR- 1252-CORE - "Quality System Generic Requirements for
Hardware"
o GR-1315-CORE - "In-Process Quality Metrics Generic Requirements
(IPQM)"
o TR-NWT-001359 - "Supplier Data Basic Generic Requirements"
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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Note: Bellcore documents may be obtained by contacting Bellcore
at: Bellcore, 8 Corporate Place, Room 3A 184, Piscataway, NJ
08854, or by calling: (800) 521-2673 or (908) 699-5800.
c. Quality Assurance Examination and/or Process Surveillance by Buyer or
its representative ("Buyer's Agent"). Such Quality Assurance Examination
and/or Process Surveillance may be conducted in accordance with the most
current issue of Quality Program Specification ("QPS") No. 88.010,
Surveillance Program for Software-General, a copy of which is attached
hereto as Exhibit D, and by this reference made a part hereof.
3. Seller further agrees that it will at no additional charge:
a. Notify Buyer or Buyer's Agent when HARDWARE and/or SOFTWARE is ready for
examination and give Buyer or Buyer's Agent reasonable opportunity to
examine same at any time prior to the scheduled shipment date thereof.
b. Provide Buyer or Buyer's Agent with copies of Seller's Quality Manual,
current inspection procedures and product specifications for the HARDWARE
and/or SOFTWARE furnished hereunder.
c. Maintain and make available to Buyer or Buyer's Agent the data including
all information and reports about Seller's quality control procedures which
demonstrate that the HARDWARE and/or SOFTWARE meets the specified quality
and reliability requirements.
d. Provide Buyer or Buyer's Agent, at no charge, with access to Seller's
test equipment, facilities, data and specifications, assistance from
Seller's personnel and sufficient working space to enable Buyer or Buyer's
Agent to perform said Quality Assurance Examination and/or Process
Surveillance and/or a review of Seller's total quality program at Seller's
facilities.
e. As reasonably requested by Buyer, Supplier shall support SBC
Communications, Inc. on-going Supplier Quality Programs at a minimum of but
not limited to the following:
(1) Quality Partner Program (QPP)
QPP is an ongoing Assessment, Feedback, and Recognition Program. The
Supplier submits a completed copy of the QPP Application and
Self-Assessment to their Agreement Manager for initial evaluation and
rating, and then supplies an annual update and progress report to
Buyer, by a date to be agree upon by Buyer and Seller.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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(2) Supplier Performance Feedback Process (Report Cards)
This process provides for the periodic measurement of the Supplier's
performance in relation to HARDWARE/SOFTWARE and/or Service Quality,
Cost Effectiveness, On-Time Delivery, and Support Satisfaction.
(3) Joint Quality Initiatives (JQI)
The purpose of the JQI program is to establish partnering
arrangements with Buyer's Suppliers in order to identify quality
improvement opportunities that result in documented savings. The
details of the JQI, amount of savings, and the time required to
achieve the proposed savings is a matter to be determined between
Buyer and the Supplier. Specifically the proposed JQI shall identify
the particular process targeted for savings, the expected savings
resulting from the JQI, the time required to achieve the desired
savings, and a detailed implementation plan. Additionally, key
contacts should be identified for each JQI and detailed status reports
should be provided to the designated Agreement Manager at the Buyer on
no less than a monthly basis. If requested, the supplier shall provide
in writing at least one JQI to their Agreement Manager. The proposed
JQI shall include the particular elements outlined in the paragraph
immediately above.
4. Nothing contained herein will diminish Seller's obligation to deliver
defect-free material which meets Specifications nor affect Buyer's rights
hereunder, under any warranty, or under other provisions of this Agreement. The
purchase of any HARDWARE/SOFTWARE hereunder is subject to Buyer's inspection and
acceptance after delivery thereof.
RECORDS AND AUDITS
Seller agrees that it will:
a) Maintain complete and accurate records of all amounts billable to and
payments made by Buyer hereunder in accordance with generally accepted
accounting principles and practices, uniformly and consistently applied in
a format that will permit audit; b) Retain such records and reasonable
billing detail for a period of three (3) years from the date of final
payment for Materials and Services; c) Provide reasonable supporting
documentation to Buyer concerning any disputed invoice amount within thirty
(30) calendar days after receipt of written notification of such dispute;
and d) Permit Buyer and its authorized representatives to inspect and audit
during normal business hours the charges invoiced to Buyer. Should Buyer
request an audit, Seller will make available any pertinent records and
files to Buyer during normal business hours.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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REGISTRATION
When Material furnished under this Agreement is subject to Part 68 of the
Federal Communications Commission's Rules and Regulations ("FCC Rules and
Regulations") as may from time to time be amended, Seller and/or its OEM
supplier warrants that such Material is registered under and complies with Part
68 of such FCC Rules and Regulations including, but not limited to, all labeling
and customer instruction requirements. Seller agrees to indemnify and hold Buyer
harmless from and against any liability, claims or demands (including costs of
defense and attorneys' fees) that may be made because of Seller's noncompliance
with Part 68 of the FCC Rules and Regulations. Seller agrees, at its expense, to
defend Buyer, at Buyer's request, against such liability, claim or demand,
provided, however, that Seller shall (1) keep Buyer fully informed as to the
progress of such defense, and (2) afford Buyer, at its own expense, an
opportunity to participate on an equal basis with Seller in such defense.
RELEASES VOID
Neither party will require waivers or releases of any personal rights from
representatives of the other in connection with visits to each other's
respective premises, and no such releases or waivers will be pleaded by Seller,
Buyer or third persons in any action or proceeding.
SEVERABILITY
If any provision or any part of provision of this Agreement shall be invalid or
unenforceable, such invalidity or non-enforceability shall not invalidate or
render unenforceable any other portion of this Agreement. The entire Agreement
will be construed as if it did not contain the particular invalid or
unenforceable provision(s) and the rights and obligations of the Seller and
Buyer will be construed and enforced accordingly.
SOFTWARE RISK OF LOSS
a) If Software is lost, damaged or made invalid during shipment prior to
Acceptance, or if it is lost or damaged at any time due to the negligence
or willful misconduct of Seller or its Contractors or agents, Seller shall
promptly replace it at no additional charge to Buyer.
b) Except as otherwise provided in Section a), above, if the Software is lost
or damaged at any time while in possession of Buyer after acceptance,
Seller shall promptly replace it and Buyer shall pay only the cost of
reproduction and shipment or delivery.
SURVIVAL OF OBLIGATIONS
Seller's and/or its OEM supplier's obligations under this Agreement which by
their nature would continue beyond the termination, cancellation or expiration
hereof, including, by way of illustration only and not limitation, those in the
clauses entitled "COMPLIANCE WITH
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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LAWS", "INFRINGEMENT", "LIABILITY", "PUBLICITY", "RELEASES VOID",
"SEVERABILITY", "USE OF INFORMATION" and "WARRANTY", will survive the
termination, cancellation or expiration of this Agreement.
TAXES
1. Seller will invoice Buyer the amount of any federal excise taxes or state or
local sales taxes imposed upon the sale of Material as separate items, if
applicable, listing the taxing jurisdiction imposing the tax. Installation or
labor charges must be separately stated. Buyer agrees to pay all applicable
taxes to Seller which are stated on and at the time the Material invoice is
submitted by Seller. Seller agrees to remit taxes to the appropriate taxing
authorities.
2. Seller agrees to pay, and to hold Buyer harmless from and against, any
penalty, interest, additional tax or other charge that may be levied or assessed
as a result of the delay or failure of Seller, for any reason, to pay any tax or
file any return or information required by law, rule or regulation or by this
Agreement to be paid or filed by Seller. Seller agrees to pay and to hold Buyer
harmless from and against any penalty or sanction assessed as a result of Seller
doing business with any country subject to U.S. trade restrictions.
3. Upon Buyer's request, the parties shall consult with respect to the basis and
rates upon which Seller shall pay any taxes for which Buyer is obligated to
reimburse Seller under this Agreement. If Buyer determines that in its opinion
any such taxes are not payable or should be paid on a basis less than the full
price or at rates less than the full tax rate, Seller shall make payment in
accordance with such determinations. If collection is sought by the taxing
authority for a greater amount of taxes than that so determined by Buyer, Seller
shall promptly notify Buyer. If Buyer desires to contest such collection, Buyer
shall promptly notify Seller. If Buyer determines that in its opinion it has
reimbursed Seller for sales or use taxes in excess of the amount which Buyer is
obligated to reimburse Seller, Buyer and Seller shall consult to determine the
appropriate method of recovery of such excess reimbursements. Seller shall
credit any excess reimbursements against tax reimbursements or other payments
due from Buyer if and to the extent Seller can make corresponding adjustments to
its payments to the relevant tax authority. At Buyer's request, Seller shall
timely file any claims for refund and any other documents required to recover
any other excess reimbursements, and shall promptly remit to Buyer all such
refunds (and interest) received.
4. If any taxing authority advises Seller that it intends to audit Seller with
respect to any taxes for which Buyer is obligated to reimburse Seller under this
agreement, Seller shall (1) promptly so notify Buyer, (2) afford Buyer an
opportunity to participate on an equal basis with Seller in such audit with
respect to such taxes and (3) keep Buyer fully informed as to the progress of
such audit. Each party shall bear its own expenses with respect to any such
audit, and the responsibility for any additional tax, penalty or interest
resulting from such audit shall be determined in accordance with the applicable
provisions of this Section. Seller's failure to
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
27
<PAGE> 29
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
comply with the notification requirements of this section shall relieve Buyer of
its responsibility to reimburse Seller for taxes only if Seller's failure
materially prejudiced Buyer's ability to contest imposition or assessment of
those taxes.
TECHNICAL SUPPORT
Seller and/or its OEM supplier will provide, at no additional cost, fall and
complete technical assistance to Buyer for the Products and Services covered by
this Agreement. Buyer will be entitled to ongoing technical support including
field service and assistance from Seller at no additional charge; provided
however, that the availability or performance of this technical support Service
will not be construed as altering or affecting Seller's obligations as set forth
in the clause entitled [* Confidential treatment will be requested] or provided
elsewhere in this Agreement. Field Service and technical support Services,
including emergency (service affecting) will be provided on site twenty-four
(24) hours a day. Seller will deliver to Buyer and keep current an escalation
document that includes names, titles and telephone numbers, including
after-hours telephone numbers, of Seller personnel responsible for providing
technical support Services to Buyer. Seller will maintain a streamlined
escalation process to speed resolution of reported problems.
TERMINATION
Buyer may terminate this Agreement or any Order in whole or in part at any time
by giving Seller at least thirty (30) days' prior written notice. Upon
termination, Buyer agrees to pay Seller all amounts due for MATERIAL provided by
Seller under this Agreement up to and including the effective date of
termination, which payment will constitute a full and complete discharge of
Buyer's obligations to Seller hereunder.
TERMS OF AGREEMENT
This Agreement is effective as of the signature date, and, unless terminated or
canceled as provided in this Agreement, shall remain in effect so long as both
parties find the Agreement mutually benefiting.
[* Confidential treatment will be requested]
TITLE AND RISK OF LOSS
Title to MATERIAL purchased hereunder will vest in Buyer when the MATERIAL has
been delivered and accepted at the F.O.B. point designated by Buyer. If this
Agreement calls for additional services such as unloading, installation or the
like to be performed after delivery,
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
28
<PAGE> 30
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
Seller will retain risk of loss to the MATERIAL until the additional services
have been performed to Buyer's satisfaction.
UNIVERSAL DESIGN
Seller and/or its OEM supplier advocates and supports and encourages its
suppliers to advocate and support the manufacturing and provision of products
which embrace the concept of "universal design". Seller shall use its reasonable
efforts to manufacture and provide products, including future versions of
Products, to make its products accessible to the widest range of consumers
including those with disabilities. Seller agrees to reasonably cooperate with
Buyer in addressing disability access issues, including hearing aid
interference, that may arise in connection with Buyer's customer's use of
Seller's Products furnished hereunder. Specifically Seller agrees:
1. to ensure that its equipment is designed, developed and fabricated to be
accessible to and usable by people with disabilities, and
2. to ensure that the service is accessible to and usable to people with
disabilities, or
3. to ensure that the equipment or service is compatible with existing
peripheral devices or specialized customer premises equipment commonly used
by individuals with disabilities to achieve access, if the requirements of
subsection 1 and 2 are not readily achievable.
* Confidential treatment will be requested
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
29
<PAGE> 31
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
emergency replacement Service shall continue for a period of ten (10) years
after the expiration of this Agreement. For Materials not covered under
warranty, charges for replacement Material shall be at the current selling
price; freight charges shall be borne by Buyer.
WORK DONE BY OTHERS
If any part of the Work is dependent upon work done by others, Seller shall
inspect and promptly report to Buyer any defect that renders such other work
unsuitable for Seller's proper performance. Seller's silence shall constitute
approval of such other work as it is fit, proper and suitable for Seller's
performance of the Work. Seller shall be entirely responsible for all persons
furnished by Seller working in harmony with all others when working on Buyer's
premises.
YEAR 2000 WARRANTY
1. Seller and/or its OEM supplier warrants that all Software and Firmware,
including any third party Software, which is licensed to Buyer hereunder
prior to, during, or after the calendar year 2000, includes or will
include, by___________, 199_, and at no additional cost to Buyer, year 2000
capability. For the purpose of this license, year 2000 capability means
that the Software and Firmware will:
a. Read, compute, store, process, display and print data involving dates,
including single century and multi-century formulas, and will not
cause computational, display, storage or other errors resulting from
the inability to accurately or correctly handle dates, including Year
2000 and February 29, 2000;
b. Include the indication of century in all date-related user interface
functionality, data fields, and generated code; and
c. Be interoperable with other software used by Buyer which may deliver
records to such Software and Firmware, receive records from such
Software and Firmware or interact with such Software and Firmware in
the course of processing dates.
2. Acknowledges that Software and Firmware Products licensed by Seller
hereunder may require modification in order to correctly process dates for
Year 2000 and beyond. In addition, such modifications may be required in
order for Seller's Software and Firmware Products to function correctly
with Buyer's data and in accordance with the applicable Specifications
therefor. Seller agrees to develop and implement such required changes in
its Software and Firmware Products licensed hereunder by Buyer in
accordance with a schedule to be mutually agreed to between Seller and
Buyer, but which, at a minimum, shall provide Buyer with sufficient time to
adequately test such modified Software and Firmware prior to mandatory
implementation of such modified Software and Firmware
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
30
<PAGE> 32
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
Products. Seller agrees that there shall be no additional charges to Buyer for
such modifications or the modified Software and Firmware Products.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
31
<PAGE> 33
[SOUTHWESTERN BELL TELEPHONE LETTERHEAD]
AGREEMENT #98005906
TERMS AND CONDITIONS
IN WITNESS WHEREOF, Seller and Buyer have executed the Agreement in duplicate
counterparts, each of which will be deemed to be an original document as of the
signature dates below.
WORLD WIDE TECHNOLOGY, INC. SOUTHWESTERN BELL OPERATIONS INC.
(SELLER) (BUYER)
By: /s/ Mark J. Catalano By: /s/ Sheila Anderson-Tritthart
Name: Mark J. Catalano Name: Sheila Anderson-Tritthart
Title: Director - Telco Bus. Unit Title: Director-Sonet & Transp Data Tech
Date: 3/15/99 Date: 3/9/99
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN BELL TELEPHONE COMPANY, PACIFIC BELL OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
32
<PAGE> 34
EXHIBIT A -- EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS
Work under this contract may be subject to the provisions of certain Executive
Orders, federal laws, state laws, and associated regulations governing
performance of this contract including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701, and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973 as amended and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such
Executive Orders, federal laws, state laws, and associated regulations apply to
the work under this contract, and only to that extent, Contractor agrees to
comply with the provisions of all such Executive Orders, federal laws, state
laws and associated regulations, as now in force or as may be amended in the
future, including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT
CONTRACTORS
In accordance with 41 C.F.R. Section 60-1.4(a), the parties incorporate
herein by this reference the regulations and contract clauses required by that
section, including but not limited to, Contractor's agreement that it will not
discriminate against any employee or applicant for employment because of race,
color, religion, sex, or national origin. The Contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex, or
national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R. Section 60-1.8, Contractor agrees that it
does not and will not maintain or provide for its employees any facilities
segregated on the basis of race, color, religion, sex, or national origin at
any of its establishments, and that it does not and will not permit its
employees to perform their services at any location, under its control, where
such segregated facilities are maintained. The term "facilities" as used herein
means waiting rooms, work areas, restaurants and other eating areas, time
clocks, restrooms, washrooms, locker rooms and other storage or dressing
areas, parking lots, drinking fountains, recreation or entertainment areas,
transportation, and housing facilities provided for employees; provided, that
separate or single-user restroom and necessary dressing or sleeping areas shall
be provided to assure privacy between the sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
Contractor agrees that it has developed and is maintaining an Affirmative
Action Plan as required by 41 C.F.R. Section 60-1.4(b).
4. AGREEMENT OF FILING
Contractor agrees that it will file, per current instructions, complete
and accurate reports on standard Form 100 (EEO-1), or such other forms as may
be required under 41 C.F.R. Section 60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS,
VETERANS OF THE VIETNAM ERA.
In accordance with 41 C.F.R. Section 60-250.20, and 41 C.F.R. Section
60-741.20, the parties incorporate herein by this reference the regulations and
contract clauses required by those provisions to be made a part of government
contracts and subcontracts.
6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
CONCERNS
As prescribed in 48 C.F.R., Ch. 1, 19.708(a):
(a) It is the policy of the United States that small business concerns,
small business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women shall have the maximum practicable opportunity to participate in
performing contracts let by any Federal agency, including contracts and
sub-contracts for systems, assemblies, components, and related services for
major systems. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment amounts due
pursuant
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<PAGE> 35
EXHIBIT A, Page 2 of 2
to the terms of the subcontracts with small business concerns, small business
concerns owned and controlled by socially and economically disadvantaged
individuals and small business concerns owned and controlled by women.
(b) The Contractor hereby agrees to carry out this policy in the awarding
of subcontracts to the fullest extent consistent with efficient contract
performance. The Contractor further agrees to cooperate in any studies or
surveys as may be conducted by the United States Small Business Administration
or the awarding agency of the United States as may be necessary to determine the
extent of the Contractor's compliance with this clause.
(c) As used in this contract, the term small business concern shall mean a
small business as defined pursuant to section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term small business
concern and owned and controlled by socially and economically disadvantaged
individuals shall mean a small business concern which is at least 51 percent
unconditionally owned by one or more socially and economically disadvantaged
individuals; or, in the case of any publicly owned business, at least 51 percent
of the stock of which is unconditionally owned by one or more socially and
economically disadvantaged individuals; and (2) whose management and daily
business operations are controlled by one or more such individuals. This term
also means small business concern that is at least 51 percent unconditionally
owned by an economically disadvantaged Indian tribe or Native Hawaiian
Organization, or a publicly owned business having at least 51 percent of its
stock unconditionally owned by one of these entities which has its management
and daily business controlled by members of an economically disadvantaged Indian
tribe or Native Hawaiian Organization, and which meets the requirements of 13
CRF part 124. The Contractor shall presume that socially and economically
disadvantaged individual include Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and other
minorities, or any other individual found to be disadvantaged by the
Administration pursuant to section 8(a) of the Small business Act. The
Contractor shall presume that socially and economically disadvantaged entities
also include Indian Tribes and Native Hawaiian Organizations.
(d) The term "small business concern owned and controlled by women" shall
mean a small business concern (i) which is at least 51 percent owned by one or
more women, or, in the case of any publicly owned business, at least 51 percent
of the stock of which is owned by one or more women, and (ii) whose management
and daily business operations are controlled by one or more women; and
(e) Contractors acting in good faith may rely on written representations by
their sub-contractors regarding their status as a small business concern, a
small business concern owned and controlled by socially and economically
disadvantaged individuals or a small business concern owned and controlled by
women.
7. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUB-CONTRACTING
PLAN.
The sub-contractor will adopt a plan similar to the plan required by 48 CFR
Ch. 1 at 52.219-9.
<PAGE> 36
PRIME SUPPLIER
MBE/WBE/DVBE PARTICIPATION PLAN
PRIME SUPPLIER NAME:____________________________________________________________
ADDRESS:________________________________________________________________________
TELEPHONE NUMBER:_______________________________________________________________
DESCRIBE GOODS OR SERVICES BEING PROVIDED UNDER THIS AGREEMENT:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DESCRIBE YOUR M/WBE - DVBE OR SUPPLIER DIVERSITY PROGRAM AND THE PERSONNEL
DEDICATED TO THAT PROGRAM.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
THE FOLLOWING, TOGETHER WITH ANY ATTACHMENTS IS SUBMITTED AS AN MBE/WBE/DVBE
PARTICIPATION PLAN.
1. GOALS
A. WHAT ARE YOUR MBE/WBE/DVBE PARTICIPATION GOALS?
o MINORITY BUSINESS ENTERPRISES (MBEs) ____________%
o WOMEN BUSINESS ENTERPRISES (WBEs) ____________%
o DISABLED VETERANS BUSINESS ____________%
ENTERPRISES (DVBEs)
B. WHAT IS THE ESTIMATED ANNUAL VALUE OF THIS CONTRACT WITH PACIFIC BELL?
_______________
<PAGE> 37
General Agreement # 98005906 Exhibit A1
SOUTHWESTERN BELL TELEPHONE COMPANY ("SWBT")?___________
OTHER SBC AFFILIATE? _______________
Note: Indicate Dollar Award(s) as it applies to this contract
(i.e., Pacific Bell, SWBT and/or affiliate).
C. WHAT ARE THE DOLLAR AMOUNTS OF YOUR PROJECTED MBE/WBE/DVBE PURCHASES?
o MINORITY BUSINESS ENTERPRISES (MBEs) _______________
o WOMEN BUSINESS ENTERPRISES (WBEs) _______________
o DISABLED VETERANS BUSINESS _______________
ENTERPRISES (DVBEs)
*SEE MBE/WBE/DVBE CANCELLATION CLAUSE IN AGREEMENT FOR DEFINITIONS OF MBE, WBE,
AND DVBE*
2. LIST THE PRINCIPAL GOODS AND/OR SERVICES TO BE SUBCONTRACTED TO
MBE/WBE/DVBEs OR DELIVERED THROUGH MBE/WBE/DVBE VALUE ADDED RESELLERS.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DETAILED PLAN FOR USE OF M/WBEs-DVBEs AS
SUBCONTRACTORS, DISTRIBUTORS, VALUE ADDED RESELLERS
For every product and service you intend to use, provide the following
information:
(Attach additional sheets if necessary)
<TABLE>
<CAPTION>
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
COMPANY NAME CLASSIFICATION PRODUCTS/SERVICES TO $ VALUE DATE TO BEGIN
(MBE/WBE/DVBE) BE PROVIDED
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
</TABLE>
2
<PAGE> 38
General Agreement #98005906 Exhibit A1
<TABLE>
<S> <C> <C> <C> <C>
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
</TABLE>
3. SELLER AGREES THAT IT WILL MAINTAIN ALL NECESSARY DOCUMENTS AND RECORDS TO
SUPPORT ITS EFFORTS TO ACHIEVE ITS MBE/WBE/DVBE PARTICIPATION GOAL(S).
SELLER ALSO ACKNOWLEDGES THE FACT THAT IT IS RESPONSIBLE FOR IDENTIFYING,
SOLICITING AND QUALIFYING MBE/WBE/DVBE SUBCONTRACTORS, DISTRIBUTORS AND
VALUE ADDED RESELLERS.
4. THE FOLLOWING INDIVIDUAL, ACTING IN THE CAPACITY OF MBE/WBE/DVBE
COORDINATOR FOR SELLER, WILL:
o ADMINISTER THE MBE/WBE/DVBE PARTICIPATION PLAN,
o SUBMIT SUMMARY REPORTS, AND
o COOPERATE IN ANY STUDIES OR SURVEYS AS MAY BE REQUIRED IN ORDER TO
DETERMINE THE EXTENT OF COMPLIANCE BY THE SELLER WITH THE
PARTICIPATION PLAN.
NAME: (PRINTED)____________________________________________________________
TITLE:_____________________________________________________________________
TELEPHONE NUMBER:__________________________________________________________
AUTHORIZED SIGNATURE:______________________________________________________
DATE:______________________________________________________________________
3
<PAGE> 39
SBC - PACIFIC BELL
M/WBE-DVBE QUARTERLY RESULTS REPORT
NOTE: Subcontracting & Value Added Reseller Results should reflect ONLY
M/WBE-DVBE dollars directly traceable to PACIFIC BELL purchases DURING
THE REPORT QUARTER. If reporting results for Southwestern Bell
Telephone Company, complete a separate Exhibit B1.
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. REPORTING COMPANY: 2. CONTRACT/ 3. REPORT QUARTER:
WORK ORDER NUMBER: This report reflects the
Name:__________________________________________ utilization of Minority Business
Address:_______________________________________ Enterprise/Woman Business
City, State, Zip:______________________________ ___________________ Enterprise/Disabled Veterans
Telephone:_____________________________________ (If available) Enterprise participation for
period
________________________ through
_______________________________
(Please indicate dates)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
PARTICIPATION GOAL PARTICIPATION ACHIEVEMENT
5. ACTUAL FOR QUARTER
4. MBE WBE DVBE
Subcontracting Dollars $ $ $
---------- ---------- --------
ANNUAL GOAL
Value Added Reseller
Percent of Total MBE WBE DVBE Dollars $ $ $
---------- ----------- --------
Pacific Bell Purchases % % %
---------- ---------- ----------
Total Purchase Dollars $
------------- ----------- -----
Percent of Total
Purchases % % %
---------- ---------- --------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
VALUE ADDED RESELLER* RESULTS
*Supplier who purchases products/services from an original equipment
manufacturer or other prime supplier for resale and provides enhancements or
added value to the basic product. (Attach additional sheets if necessary)
<TABLE>
<CAPTION>
Ethnic/Gender: Total Dollars:
------------- -------------
<S> <C> <C>
6.
Name:____________________________________________________________________ __________________________________ ____________________
Address:____________________________________________________________________________________________________________________________
City, State, Zip:___________________________________________________________________________________________________________________
Telephone:__________________________________________________________________________________________________________________________
Goods or Services:__________________________________________________________________________________________________________________
</TABLE>
<TABLE>
<CAPTION>
Ethnic/Gender: Total Dollars:
------------- -------------
<S> <C> <C>
Name:____________________________________________________________________ _________________________________ ____________________
Address:____________________________________________________________________________________________________________________________
City, State, Zip:___________________________________________________________________________________________________________________
Telephone:__________________________________________________________________________________________________________________________
Goods or Services:__________________________________________________________________________________________________________________
</TABLE>
