<PAGE> 1
EXHIBIT 10.4
SIEMENS PURCHASE ORDER Page 1
Vendor Address Please Deliver to:
HUGO INTERNATIONAL LIMITED SIEMENS COMMUNICATIONS LIMITED
6 WATERSIDE DRIVE LANGLEY BUS.PAR TURNELLS MILL LANE
LANGLEY WELLINGBOROUGH
SLOUGH NN8 2RB
SL3 6EZ
VENDOR NUMBER: 311319 Please Invoice To:
PURCHASE ORDER NUMBER: 7000016928 SIEMENS COMMUNICATIONS LIMITED
BRICKHILL STREET
DATE: 05.07.1999 WILLEN LAKE
BUYER: JUNE RAYMOND MILTON KEYNES
BUYER TEL: 01933 444466 MK15 ODJ
SIEMENS ORDER NUMBER: ATTN A/C PAYABLE
VAT REGISTRATION No. GB479985260
ENQUIRIES TO R. LIVINGSTON 01933 444184
DEAR SIRS,
WE HEREBY ASK YOU TO DELIVER THE FOLLOWING GOODS IN ACCORDANCE WITH OUR STANDARD
CONDITIONS OF PURCHASE.
WE REQUIRE AN ORDER ACKNOWLEDGMENT FOR THE FOLLOWING ITEMS:
<TABLE>
<CAPTION>
Item Material Quantity Description Delivery Date Value GBP
Price GBP Per Unit
<S> <C> <C> <C> <C>
10 SUPPLY MAINTENANCE 06.07.1999 120,000.00
1 each 120,000.00 1 each
</TABLE>
SUPPLY MAINTENANCE FOR MARKS AND SPENCER SITES
AGREEMENT NUMBER 8009694
PERIOD 1/7/99 - 30/6/2000
TO BE CHARGED ON A QUARTERLY BASIS
TOTAL ORDER VALUE: 120,000.00
GBP
DELIVERY TERMS: 001 PAID DELIVERED
PAYMENT TERMS: Within 30 days Due net
PLEASE QUOTE OUR PURCHASE ORDER NUMBER, LINE ITEM NUMBER AND MATERIAL NUMBER ON
ALL INVOICES, ADVICE NOTES AND CORRESPONDENCE.
SIGNED FOR THE COMPANY /s/ T.J. Ball 7/7/99
--------------------
SUBJECT TO TERMS AND CONDITIONS PRINTED OVERLEAF
IMPORTANT PLEASE ACKNOWLEDGE RECEIPT OF THIS ORDER AND CONFIRM PRICE AND
DELIVERY
<PAGE> 2
EXHIBIT 10.4
AGREEMENT FOR THE PROVISION OF SERVICE
An Agreement between Siemens Communications Limited acting as a
management company for Siemens plc on whose behalf it enters into this Agreement
(Siemens) with principal places of business at:
Turnells Mill Lane and Brickhill Street
Wellingborough Willen Lake
Northants Milton Keynes
NN8 2RB MK15 0DJ
Tel: (01933) 225000 Tel: (01908) 855000
and the Supplier whose company name is: HUGO INTERNATIONAL
6 WATERSIDE DRIVE
LANGLEY BUSINESS PARK
LANGLEY
SLOUGH
BERKS
SL3 6EZ
WHEREAS
A. Siemens Communications Limited acting as a management company for
Siemens plc on whose behalf it enters into this Agreement (Siemens) has
entered into a contract with Marks and Spencer Plc of 47 Baker Street
London W1A 1DN (the "Customer") for the maintenance of various
equipment (the "Prime Contract") which includes the Equipment detailed
in Schedule 1 to this Agreement.
B. Siemens wishes to sub-contract part of its maintenance obligations to
the Supplier.
C. The Supplier is willing to act as sub-contractor to Siemens.
NOW THEREFORE THE PARTIES HEREBY ENTER INTO THIS AGREEMENT ON THE TERMS AND
CONDITIONS SET OUT HEREIN AND IN THE SCHEDULES HERETO:
Signed for and on behalf Signed by:
of Hugo International:
/s/ D.W. Foden
-------------------------
/s/ P.D. Johnson
----------------------------------
Authorized Signatory of
Siemens Communications Limited
a management company for
Siemens plc
Name: D.W. Foden Name: P. D. Johnson
------------------------- ----------------------------------
Position: Managing Director Position: Commercial Manager
------------------------- ----------------------------
Date: 21/6/99 Date: 12/07/99
------------------------------ ------------------------------
<PAGE> 3
INDEX
<TABLE>
<CAPTION>
<S> <C> <C>
Clause 1 Definitions
2 Scope
3 Relationship of the Parties
4 Duration
5 Operating Procedure
6 Change of Service
7 Charges and Payment
8 Licence
9 The Supplier's Obligations
10 The Supplier's Further Assurance
11 The Supplier's Liability
12 Siemens Liability
13 Insurance
14 Termination
15 Confidentiality and Intellectual Property Rights
16 Assignment
17 Sub-contractors
18 Year 2000
19 General Provisions
Schedule 1 The Equipment
2 Service Level Agreement
3 Charges and Duration
</TABLE>
<PAGE> 4
1. DEFINITIONS
For the purposes of this Agreement the following words or expressions
shall have the meaning set out against them.
(a) "Agreement" means this agreement, its Appendices and any
documentation expressly incorporated herein, including any
amendments agreed between the parties in writing.
(b) "Schedule" means a schedule to this Agreement and shall
include any subsequent amendment, replacement or re-issue
thereof.
(c) "Call" means a call to the Supplier made in accordance with
Schedule 2.
(d) "Charges" means the charges detailed in Schedule 3.
(e) "Commencement Date" means the 1st July 1999.
(f) "Customer" means Marks and Spencer Plc of 47 Baker Street,
London, W1A 1DN.
(g) "Customer's Premises" means the Customer's premises in the
United Kingdom and the Republic of Ireland.
(h) "Equipment" means the equipment identified in Schedule 1.
(i) "Maintenance Cover Time" means the period of time that the
Equipment is covered by the Service as detailed in Schedule 2.
(j) "Service" means the services to be provided under this
Agreement.
2. SCOPE
(a) The Supplier warrants that it shall provide the Service and
perform such other duties which are referred to in this
Agreement in respect of the Equipment as the Siemens
sub-contractor under the Prime Contract in accordance with
this Agreement and in consideration of the Charges.
(b) Any Service carried out by the Supplier which is not in
accordance with this Agreement, unless Siemens' prior
agreement in writing is obtained, shall be made good by the
Supplier at its own expense.
(c) The Service to be carried out shall be preventative and
corrective maintenance of the Equipment in accordance with the
Service Level Agreement set out in Schedule 2.
<PAGE> 5
(d) Siemens expressly reserves the right to:
(i) add, delete or amend items of equipment to the scope
of this Agreement upon which the Service will be
performed; and
(ii) add to, delete or amend the Customer's Premises
within the United Kingdom and the Republic of Ireland
in which Equipment is held and upon which the Service
is performed.
subject to payment of Charges in accordance with Schedule 3
or, if no Charge is provided for, a charge to be agreed by the
parties and paid in accordance with Schedule 3, and subject
further to the Supplier being given reasonable written notice
of any such additions, deletions or amendments.
(e) Where the Service provides for the replacement of items
(including parts) of Equipment then when replacement items are
fitted, these items become the property of the Customer.
(f) Save as provided in this Clause, the Supplier shall bear all
costs or expenses incurred in the provision of the Service,
including but not limited to:
(i) the cost of obtaining and storing spare parts; and
(ii) the costs associated with the Re-delivery of
Equipment (including packaging, transit and insurance
of Equipment until Re-delivery in an adequate sum
with a reputable insurance company). All risk of loss
and damage during such period shall be borne by the
Supplier.
(g) The Supplier shall make available for inspection the
Certificate of Insurance referred to above and evidence of
payment of premiums at the request of Siemens.
3. RELATIONSHIP OF THE PARTIES
(a) Notwithstanding any degree of supervision exercised by Siemens
over the Supplier's personnel from time to time assigned to
provide the Service and perform the Supplier's other
obligations under this Agreement, such persons at all times
shall be deemed to be the employees of the Supplier and in no
circumstances shall the relationship of employer and employee
be deemed to arise between Siemens and the Supplier's
personnel whether by reason of the Transfer of Undertaking
(Protection of Employment) Regulations 1981 (as amended) or
otherwise. The Supplier shall indemnify and hold harmless
Siemens against any cost, claim or liability that Siemens may
suffer in respect of the Supplier's personnel or former
personnel who claim to have been transferred under the
Transfer of Undertaking (Protection of Employment) Regulations
1981 (as amended).
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<PAGE> 6
(b) Neither party is the agent of the other and neither party
shall have the authority to bind the other or to make any
contract in the name of the other party without that party's
prior written consent.
4. DURATION
This Agreement shall continue for the minimum term specified in
Schedule 3, and shall renew automatically on an annual basis
thereafter. Either party may terminate this Agreement on expiry of the
minimum term or on expiry of any subsequent full year of service,
subject to at least 90 days written notice to the other party, or in
accordance with Clause 15.
5. OPERATING PROCEDURE
(a) On initial arrival and final departure all employees, agents
or sub-contractors of the Supplier must book in and out of the
Customer's Premises in accordance with the Customer's security
requirements. The Supplier shall not use the Customer Premises
for any purpose other than that of carrying out the Service.
(b) The Supplier shall prevent all work people including those
employed by subcontractors from trespassing on any part of the
Customer's Premises which is not necessary for carrying out
the Service.
(c) The Supplier shall at its own cost provide, maintain and
remove all access equipment. The Supplier must ensure that
access equipment is safe, clean and secure for the due
performance of the Service.
(d) The Supplier shall be responsible for carefully cleaning all
areas where the Service has been provided upon completion, and
leaving the Customer's Premises in the same state as on
arrival.
(e) The Supplier shall obtain the approval of the Customer for the
proposed siting of materials, temporary rubbish, deposits and
temporary buildings.
(f) The Supplier shall undertake not to damage, interfere with or
vexatiously delay completion of work by other suppliers within
any of the Customer's Premises.
(g) All Services must be undertaken in compliance with the Health
and Safety at Work Act and the Customer's health and safety
requirements.
(h) No notice board will be permitted to be displayed externally
on the Customer's Premises.
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<PAGE> 7
6. CHANGE OF SERVICE
The Charges may be adjusted in the event that the scope of service
provided for the Systems is changed by agreement, or any changes are
made to the requirements of or on the instruction or request of, the
Government, a regulatory authority, an emergency services organisation
or any other competent administrative authority affecting the provision
of the Service, or the System is no longer a current release, or the
System is extended by the addition of further hardware or software. In
any such event, the Charges may be amended immediately in accordance
with the Supplier's then current charges.
7. CHARGES AND PAYMENT
(a) Siemens shall pay the Charges for the Service in accordance
with Schedule 3 from the Commencement Date.
(b) Notwithstanding anything in this Agreement to the contrary,
payments due to the Supplier shall be payable by Siemens only
when such payments are paid to Siemens by the Customer under
the Prime Contract.
(c) The Charges are exclusive of all national and local taxes and
duties, which shall be added in accordance with prevailing
legislation.
(d) The Charges will be reviewed annually by the Supplier and
Siemens between September and December. Any changes shall be
agreed by the end of December of that year and shall become
effective from 1st July of the year following the review.
(e) The Supplier shall be deemed to have fully informed itself as
to the specification and general condition of the Equipment
and no increase in the Charges shall be permitted on the
grounds of misrepresentation of any matter relating to the
Equipment, the condition or specification of the Equipment or
the Customer's Premises proving to be different from that
anticipated.
(f) The Supplier shall pay rates of wages and observe hours and
conditions of labour not less favourable than the general
level of wages, hours and conditions for the trade or industry
in the district where the Service is carried out.
(g) The Supplier's Charges shall be deemed to include (but not be
limited to):
(i) direct labour costs including all allowances, bonuses
and costs associated with fringe benefits, holidays
and sickness leave and all costs of advertising,
recruitment, interviews, introduction, obtaining and
renewal of qualifications, shift working, standby and
other pre- and post- employment expenses unless
otherwise stated herein;
(ii) all costs of all taxes (with the exception of VAT)
and contributions raised by law, trade union contract
or regulations relating to or increased by the
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<PAGE> 8
payroll of the Supplier (for example workman's
compensation and old age benefits, welfare funds,
pensions, annuities and disability insurance);
(iii) all costs of standard employee benefits of the
Supplier (for example sick leave with pay, retirement
funds, health and life assurance, any bonus
programmes, profits sharing schemes and share
purchase schemes);
(iv) all costs of transport and travel to and from
locations at or from which Services shall be
provided;
(v) other direct and indirect costs of the Supplier
including all contributions to overhead,
administration and profit;
(vi) all costs associated with the provision, maintenance
and update of the Supplier's training obligations
necessary to perform the Services;
(vii) all costs associated with the provision of personnel
supervision associated with this Agreement;
(viii) all costs associated with the provision, maintenance
and replacement of the Supplier's hardware, software,
equipment, tools, consumables and all other equipment
associated with the provision of the Services;
(ix) all costs associated with providing the Services as
set out within this Agreement, Monday to Friday,
09.00 to 17.00, statutory and public holidays
excluded;
(x) all costs associated with fluctuations in labour
rates in respect of employees, sub-contractors or
Trade Unions negotiations;
(xi) all costs associated with the provision of the
Supplier's personnel suitably trained and qualified
for the provision of the Services;
(xii) all costs associated with the delivery and collection
of all equipment, materials and consumables;
(xiii) any other costs for items not specifically mentioned
in or not specifically excluded from this Agreement.
8. LICENCE
Siemens is hereby licensed to use and to sub-licence any material
supplied by the Supplier in order to perform the Prime Contract.
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<PAGE> 9
9. THE SUPPLIER'S OBLIGATIONS
(a) The standard of the Service shall be in accordance with this
Agreement and to the extent that the standard of the Service
has not been specified in this Agreement, the Supplier shall
use good quality materials, techniques and standards and
provide the Service with the care, skill and diligence
required in accordance with best industry practice.
(b) Materials and workmanship in all respects shall conform to the
higher of any current British or EU standard or Code of
Practice that can be properly applied and/or any reasonable
standard agreed by the Customer and Siemens.
(c) If requested, the Supplier shall submit details of its policy
on quality assurance.
(d) As necessary to meet its obligations under this Agreement and
at its own expense the Supplier shall:
(i) provide sufficient test equipment to the levels
recommended by the Equipment manufacturer;
(ii) provide sufficient numbers of trained and qualified
field service engineers;
(iii) maintain sufficient levels of dedicated spare parts
(including component parts, cables and whole units)
and ensure that any spare parts used in the Service
are compatible with existing components;
(iv) use its reasonable endeavours to ensure that
engineers deployed in any country to provide the
Service are fluent in English and any other local
languages.
(e) The Supplier shall comply with the Customer's site procedures
and restrictions including but not limited to:
(i) Equipment or materials held off site shall be
labelled in accordance with the Customer's
requirements;
(ii) The Supplier shall keep full and accurate accounts
for the Service and shall maintain proper records of
wages paid and all invoices and other records of
materials and plant used and receipts for payments to
Subcontractors and make them available for inspection
on demand by Siemens for a minimum period of two
years after the date of final invoice.
(iii) The Supplier shall check all invoices submitted to it
by sub-contractors and manufacturers to ensure that
the calculations therein and the content thereof are
correct before including the amount of such invoices
in any application to Siemens for payment.
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<PAGE> 10
(iv) Any excess payments made by Siemens which could
reasonably have been prevented by such a check in
Clause 9(e)(iii) shall be reimbursed to Siemens.
(v) When any sub-contractor is to be reimbursed on a
prime cost basis, the Supplier shall arrange for the
sub-contractor to maintain similar records for
inspection and checking by Siemens.
(vi) The Supplier shall pass to Siemens the benefit of
discounts offered by its suppliers, manufacturers and
sub-contractors.
(vii) The Supplier shall offer Siemens detailed financial
and operational proposals for savings resulting from
reduced problem rates for agreement between Siemens
and the Supplier.
(viii) The Supplier shall not use the Customer's Premises
for any purpose other than that of carrying out the
Service.
(ix) The Supplier shall comply with the Customer's
reasonable requirements regarding access for the
delivery and removal of goods and materials.
(x) Save where otherwise provided in this Agreement, the
Supplier is responsible for taking delivery,
handling, storing and distributing all equipment,
materials and consumables necessary for carrying out
the Service.
(xi) The Supplier shall not store oxyacetylene, propane,
gas cylinders or the like on the Customer's Premises.
(xii) The Supplier is continually to keep the Customer's
Premises in the area of its work clean during the
progress of the Service. The Supplier shall remove
all dirt, rubbish, protective casings and superfluous
materials including that of its sub-contractors as
the Service proceeds and at completion. Rubbish shall
be disposed of in accordance with the Customer's
requirements and in accordance with statutes and
regulations for waste management.
(xiii) The Supplier shall keep to a minimum the amount of
noise made on the Customer's Premises. Generators,
compressors and other noisy plant shall be muffled at
all times by means of silencers, screens and the
like.
(xiv) Smoking within the curtilage of the Customer's
Premises, with the exception of designated smoking
areas, is strictly forbidden. The Customer or Siemens
may order offenders to leave the Customer's Premises
and not return without Siemens' permission.
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<PAGE> 11
(xv) The Customer's catering facilities are not to be used
by the Supplier without obtaining the Customer's
permission. Any such permission granted is to be on
the conditions as stated by the Customer. Siemens or
the Customer may order offenders to leave the
Customer's Premises,
(xvi) The Customer shall provide all electricity for the
Service carried out within the Customer's Premises.
The Supplier must acquaint itself with the
availability of electricity on the Customer's
Premises.
(xvii) Materials obtained from the Customer's Premises shall
remain the property of the Customer or Siemens and
shall be placed in storage or disposed of in
accordance with Siemens' instructions.
(xviii) Vehicles owned by the Supplier or its employees,
agents, or subcontractors may only be parked on the
Customer's Premises with the prior permission of the
Customer.
(xix) The Customer shall be entitled to search and inspect
the contents of all the Supplier's vehicles, staff
and operatives visiting the Customer's Premises. The
Supplier shall bring this requirement to the
attention of its employees and all sub-contractors
who attend at the Customer's Premises.
(xx) The Customer shall be entitled to search the bags or
other luggage of each operative at any time,.
(xxi) Siemens reserves the right to make inspections upon
reasonable notice and carry out tests to ascertain
that the Supplier's obligations under this Agreement
are being fulfilled. Such inspections may be
conducted by Siemens or its agent. Any deficiencies
noted shall be corrected within 30 (thirty) days, or
such time that it is agreed with Siemens, of
receiving written notification or exceptionally, to
an agreed programme of Service, at the Supplier's
expense.
(xxii) The Supplier's staff must provide proof of identity
at all times which must show the Supplier's Company
name, date of issue, the individuals name, signature
and passport size photograph.
(xxiii) The Supplier's staff will conform with Siemens'
standards of dress and code of conduct at all times
while on the Customer's Premises.
(xxiv) Prior to leaving the Customer's Premises after
completing a fix, the Supplier shall demonstrate to
the Customer or its agents that the relevant
Equipment is functioning properly;
(xxv) In the event that further Calls have been logged in
respect of one of the Customer's Premises by the time
of arrival of the Supplier's engineer at
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<PAGE> 12
that premises, the engineer shall resolve all such
Calls within one visit, where practicable.
(xxvi) The Suppler shall ensure that its engineers arrive at
the Customer for the removal of any of its employees
or agents from its Premises for reasonable cause,
including without Limitation, incompetence,
interference with the Customer's operations or
failure to observe safety standards, laws, codes or
regulations.
(f) By agreement of Marks & Spencer Voice services the Supplier
shall prepare a comprehensive inventory of all equipment of
the general type shown in Schedule 1 which is situated at or
used in the Customer's Premises (including details of
equipment type, model number, quantity and present condition)
and shall provide the same to Siemens within 6 months of the
Commencement Date. Thereafter, the Supplier shall use its best
endeavours to ensure that such inventory is kept up-to-date
and that copies of the same are provided to Siemens at least
once every 6 months during the term of this Agreement.
(g) The Supplier shall immediately inform Siemens if it becomes
aware that Equipment is being misused or abused by any person.
10. THE SUPPLIER'S FURTHER ASSURANCE
The Supplier agrees to execute all other documents, to provide all
necessary assistance and to do all other things as may be required from
time to time by Siemens under or pursuant to this Agreement
11. THE SUPPLIER'S LIABILITY
(a) Subject to the limits set out in this Clause, the Supplier
agrees to indemnify Siemens against any damages, loss, costs,
claims, expenditure or other liability arising out of or
related to:
(i) injury, or death to any person; or
(ii) damage to property
resulting from any defect in workmanship, negligence or
willful misconduct of the Supplier or its employees, agents or
sub-contractors.
(b) For clarity and subject to the limits set out in this Clause,
the Supplier agrees to indemnify Siemens against any damages,
loss, costs, claims, expenditure or other liability arising
from any breach of the Prime Contract which results from any
failure by the Supplier to perform its obligations in
accordance with the Agreement.
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<PAGE> 13
(c) In case the Supplier by any act or omission referred to in
Sub-Clause 11(a) causes injury to or the death of any person,
then the Supplier's liability for such injury or death shall
be unlimited,
(d) In all other cases the Suppliers liability In respect of any
one event or series of connected events Is limited to pound
sterling 1,000,000 (one million pounds) provided that in no
event will the Supplier be liable for any indirect or
consequential loss or loss of business, profits, revenue or
anticipated savings.
(e) The Supplier shall not be liable for the failure to provide
the Service if the failure results from any force majeure
event (whether happening In the United Kingdom or elsewhere),
such as, but not limited to, Act of God, refusal of licence or
other Government act, fire, explosion, accident, lightning
damage, electromagnetic interference, radio interference,
industrial dispute, failure on the part of the Supplier's
supplier/s. or any cause beyond the Supplier's reasonable
control
12. SIEMENS' LIABILITY
(a) In case Siemens by its negligence causes injury to or the
death of any person, then Siemens' liability for such injury
or death shall be unlimited.
(b) In all other cases, Siemens' liability in respect of any one
event or series of connected events shall not exceed the sum
of pound sterling 100,000 (one hundred thousand pounds),
provided that in no event will Siemens be liable for any
indirect or consequential loss or loss of business, profits,
revenue or anticipated savings.
13. INSURANCE
(a) Without prejudice to its liability to indemnify Siemens, the
Supplier shall put in place and maintain such insurance with a
reputable insurance company as is necessary to cover the
potential liabilities set out in Clauses 2 and 12.
(b) The Supplier shall provide Siemens with a copy of its policy
and satisfactory evidence of the payment of premiums up to the
date of the request, if so requested by Siemens.
14. TERMINATION
(a) If the Prime Contract is terminated or suspended for any
reason then Siemens will be entitled to terminate or to
suspend the Agreement, provided that Siemens gives notice of
termination or suspension to the Supplier equal to the period
of notice given by the Customer to Siemens, less one day.
(b) If either party is in breach of any obligation under the
Agreement and does not remedy that breach within 28 (twenty
eight) days after receipt of written notice
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<PAGE> 14
detailing the breach, the innocent party may immediately
terminate this Agreement or, at that party's option, suspend
performance of its obligations under the Agreement until the
breach is remedied.
(c) If either party becomes insolvent, commits an act of
bankruptcy or goes or is put into liquidation (other than
solely for amalgamation or reconstruction) or if a receiver is
appointed over all or any part of the party's business or
assets or if an administration order is made in respect of it,
then the other party may regard any such circumstance as
grounds for immediately terminating this Agreement without
notice.
(d) Without prejudice to any other provision of this Agreement,
this Agreement may be terminated by Siemens giving 90 days
prior written notice to the Supplier without incurring any
penalty for such termination.
(e) Should any party acquire or attempt to acquire an interest in
the shareholding of the Supplier or any associated company
actively involved in this Agreement which would represent a
substantial change in the shareholding of the Supplier, such
event shall be immediately notified to Siemens. Siemens may,
by reasonable notice, determine the employment of the Supplier
under this Agreement should such an acquisition be completed,
provided that such notice shall not be given unreasonably or
vexatiously.
(f) In the event of termination, Siemens total financial liability
shall be limited to any portion of the Charges which has
accrued prior to notification of breach.
(g) If termination is due to default by the Supplier, then Siemens
shall within 5 (five) days of termination be granted access to
spares, diagnostic materials and programs, technical advice
and training in order that Siemens may fulfil its obligations
under the Prime Contract.
(h) At the termination of this Agreement the Supplier shall
promptly return to Siemens all documents, records, media or
other property belonging to Siemens and all records containing
secret and/or confidential information of Siemens or of the
Customer which are in its possession and issued in connection
with this Agreement, together with all copies thereof.
15. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
(a) The parties agree not to disclose to any third party (other
than for the purposes of performing this Agreement), any
secret or confidential information or method of working
revealed by the other. Siemens' programs are expressly
declared to be secret and confidential information.
(b) The Supplier shall not take or authorise the taking of any
photographs for use in any publicity or advertising or publish
alone or in conjunction with any other
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<PAGE> 15
person or article, photographs or other illustrations relating
to the Service on the Customer's Premises nor shall it impart
to any publication, journal or newspaper or any radio or
television program any information relating to this Agreement.
(c) If requested by Siemens, the Supplier will obtain a written
undertaking not to reveal confidential information to any
person, firm, corporation, body or organisation from the
members of its staff entitled to know such confidential
information.
(d) The Supplier shall indemnify Siemens against liability, loss
and costs arising from infringement or alleged infringement by
Siemens or any other person of any patent, copyright, design
right (whether registered or not), trade mark, trade name or
other proprietary right by the provision of the Service.
(e) If any allegation of infringement of third party rights as
referred to in Sub-clause 15(d) is made or in Siemens' opinion
is likely to be made, Siemens may modify or replace items
supplied by the Supplier at the Supplier's expense so as to
avoid the infringement.
16. ASSIGNMENT
(a) In the event that the Prime Contract is terminated for
whatever reason, (save where the termination occurs by reason
of Siemens having a winding up order made other than for the
purpose of amalgamation or reconstruction):
(i) Siemens shall be entitled to assign the benefit of
this Agreement to the Customer upon terms that allow
the Supplier to make any reasonable objection to
further assignment thereof by the Customer; and
(ii) the Customer shall be entitled to pay to the Supplier
any amounts due for Services executed whether before
or after the assignment, insofar as the same has not
been paid by Siemens.
(b) The Supplier may not assign this Agreement nor any obligation
or rights hereunder without the prior written consent of
Siemens.
17. SUB-CONTRACTORS
The Supplier shall not without the prior written consent of Siemens
engage any subcontractor to perform all or any part of this Agreement.
Such consent, if given, may be made conditional on a confidentiality
agreement containing at minimum the obligations set out in Clause 9
being signed between the sub-contractor and Siemens.
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<PAGE> 16
18. YEAR 2000
(a) The Supplier warrants that, where applicable, the Service to
be provided by the Supplier includes any service to ensure
that the Equipment is fully compatible (without modification,
loss of performance, loss of use, or work or expense on the
part of Siemens) with changes to inputs, outputs, data or
other information in relation to dates arising in the year
2000 and beyond, taking account of the year 2000 being a leap
year.
(b) The provisions of this Condition shall survive the expiry of
this Agreement.
19. GENERAL PROVISIONS
(a) Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part of or be
referred to in interpreting this Agreement.
(b) Statutory Obligations. The Supplier shall comply with all
statutory requirements, regulations and bye-laws applicable to
the Service.
(c) Governing Law. This Agreement and any dispute or matter
arising under it shall be governed by the Laws of England and
the parties hereby agree to submit to the exclusive
jurisdiction of the English courts
(d) Waiver. No terms or conditions hereof shall be deemed waived
and no breach or default excused unless such waiver or excuse
shall be in writing and signed by the party issuing the same.
(e) Enforcement. In the event that any provisions of this
Agreement are declared unenforceable by a court (or other
body) of competent jurisdiction then this Agreement, with
respect to enforceable provisions shall survive any such
declaration unless it is agreed that such declaration
adversely effects the original intention of the parties, in
which instance this Agreement may be terminated forthwith by
written notice of either party.
(f) Notices. Any notices given under this Agreement shall be in
writing addressed to the parties at their respective addresses
set forth herein or such other address as may be notified from
time to time by either party to the other.
(g) Entire Agreement. This Agreement constitutes and expresses the
entire Agreement between the parties relating to all matters
herein referred to and shall supersede all previous
agreements, discussions, promises, representations and
understandings relative thereto, if any, between the parties
and the standard terms and conditions of service of the
Supplier shall not be of any force or effect.
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<PAGE> 17
SCHEDULE 2
THE SERVICE LEVEL AGREEMENT
THE SERVICE LEVEL:
a) The maintenance cover time shall be 09.00 to 18.00, Monday to Friday,
excluding public and statutory holidays.
b) The fix time for equipment faults on Radios, Radio Repeaters and
Collect by Car systems will be no more than five working days.
c) Service level performance measurement shall commence from the date this
agreement is signed.
THE OPERATING PROCEDURE:
a) Stores will report all faults for fixed equipment via the M&S Help Desk
for Windows system on 0171 268 5999.
b) Faulty radios will continue to be returned to Hugo via the existing
Parcelforce courier system.
c) Calls will be received by the Siemens Managed Service Operation in
Wellingborough and passed to Hugo for resolution.
d) Hugo will supply a fault reference to Siemens and an estimated time of
arrival for their engineer.
e) Where appropriate, and with prior notice, temporary equipment will be
loaned to the user whilst the installed equipment is removed from site
for repair.
f) Any escalation of outstanding faults will be managed between the
relevant Service Managers.
PREVENTATIVE MAINTENANCE:
Upon reasonable notice to the store, Hugo will carry out preventative
maintenance of fixed and where necessary mobile equipment. This will include
full inspection of the equipment, operational testing and adjustments where
necessary to comply with its specification.
COSTS OF SERVICE:
The costs and payment terms are outlined in Schedule 3.
PERFORMANCE STATISTICS:
At the end of each calendar month, the supplier will provide information on the
performance of their service highlighting the number of faults received, the fix
time of the faults, identify any issues by exception of those faults handled.
REVIEW MEETINGS:
Formal meetings will be held each quarter to review the performance and measure
the response of the supplier to the agreed SLA's.
WARRANTY:
Any maintenance that has been carried out on equipment will be subject to a
three month warranty of the part(s), except where failure is due to willful
damage.
<PAGE> 18
SCHEDULE 3
CHARGES AND DURATION
1. Introduction
This Schedule defines the payments due to the Supplier for the
performance of the Services
2. Charges
Siemens will pay the Supplier pound sterling 120,000.00 (One Hundred
and Twenty Thousand Pounds) exclusive of Value Added Tax per annum for
the Service.
3. Payment Arrangements
(a) The Supplier shall issue invoices for the Charges
quarterly in advance.
(b) Invoices should be on the Supplier's headed paper and
contain the following (Where applicable):
(i) the VAT number
(ii) a unique invoice number
(iii) the name of the person at the Customer's
Premises requesting the goods/Services
(iv) a description of the goods/service
(v) the invoice amount split down net, VAT
amount and gross amount
(vi) a schedule of Charges broken down by job and
store, or per unit of Equipment supported.
(c) Invoices for the Charges shall be submitted to:
Siemens Communications Limited, Brickhill Street,
Willen Lake, Milton Keynes, MK15 ODJ and marked for
the attention of Accounts Payable.
(d) Subject to clause 7 of the terms and conditions
payment of correctly submitted invoices subject to
deductions permitted under this Agreement, shall be
made within 30 (thirty) days of receipt of the
invoice save in the circumstance that the invoice is
the subject of a bona fide dispute.
<PAGE> 19
4. Term
This Agreement will run for a minimum term of 3 (three) years unless or
until terminated in accordance with clause 14.
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