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EXHIBIT 6.11
MASTER AGREEMENT
THIS MASTER AGREEMENT ("Agreement") is dated the 10th day of September, 1999 by
and between XXXXX BUSINESS COMMUNICATION SERVICES, a division of Xxxxx North
America, Inc., with offices located at Three Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxx,
Xxxxxxxx 00000 ("MBCS"), and XXXXX.XXX, INC., with offices located at QORUS,
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("QORUS").
- RECITALS -
Subject to the terms and conditions of this Agreement, MBCS desires from time
to time to obtain or have provided on its behalf in connection with its
customers, certain services offered by QORUS and QORUS desires to provide such
services to MBCS as requested by MBCS.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and other good and valuable consideration, the receipt of which is
hereby acknowledged by the parties, MBCS and QORUS agree as follows:
1. SCOPE OF AGREEMENT; RELATIONSHIP OF PARTIES.
1.1 Scope of Agreement. From time to time during the term of this Agreement,
MBCS shall request QORUS to provide to MBCS and QORUS may agree to provide to
MBCS certain services ("Services") set forth in a Statement of Work to be
executed by the parties hereto. Each Statement of Work shall be substantially
in the form annexed hereto as Schedule A and made a part hereof, shall
incorporate therein all of the terms and conditions of this Agreement, and
shall contain such additional terms and conditions as MBCS and QORUS shall
agree upon. This Agreement shall not obligate MBCS to order from QORUS any
Services or QORUS to agree to provide them but merely establishes the terms and
conditions controlling if, as, and when a Statement of Work is entered into by
MBCS and QORUS and Services are ordered.
1.2 Relationship of Parties.
1.2.1 To the extent that any of the Products or Services are used by MBCS in
connection with work performed by MBCS for its customers, MBCS shall at all
times be the prime contractor and QORUS shall act only as supplier of the type
of Services covered under this Agreement. Unless otherwise expressly agreed to
in
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writing by MBCS, all interface by QORUS with customers of MBCS shall be by or
through MBCS.
1.2.2 Each party will act as an independent contractor and not as an agent for
the other for any purpose, and neither party shall have authority to bind the
other except to the extent authorized herein. QORUS shall indemnify MBCS
against all liability and loss in connection with, and shall assume
responsibility for, contributions imposed as required under employment
insurance, social security, and income tax laws with respect to QORUS and its
employees and subcontractors engaged in the performance of this Agreement.
1.3 Non-Exclusive Agreement. It is expressly understood and agreed that this
Agreement does not establish an exclusive relationship between the parties and
it is, therefore, understood that either party may contract with other vendors,
customers, or third parties for comparable or identical products, services,
and/or relationships so long as the provisions of this Agreement are not
otherwise breached.
1.4 Periodic Meetings. The parties shall arrange to have periodic meetings (not
more often than quarterly) for the purpose of discussing the status of the
business relationship and also to discuss and review, if and when pertinent,
(a) cost reduction initiatives with the intent of decreasing overall costs for
the Services, and (b) marketing and planning initiatives.
2. TERM.
2.1 This Agreement shall be for an initial period of five (5) years and
thereafter shall be automatically renewed for additional successive one-year
periods unless written notice of termination is given by either party to the
other not less than ninety (90) days prior to the expiration of the initial
term or any renewal term.
2.2 Notwithstanding the foregoing, the term for each Statement of Work shall be
as set forth on each such Statement of Work, and this Agreement shall be
considered to remain in effect so long as any Statement of Work remains in
effect.
3. PRICING; INVOICING.
3.1 Prices. Prices for the Services shall be as set forth in each particular
Statement of Work and shall be consistent with the Pricing Schedule attached
hereto as Schedule C. Unless otherwise provided for in the Statement of Work,
prices are firm for the initial twelve (12) months of each Statement of Work
and thereafter can be revised annually on thirty (30) days prior written notice
to MBCS but in no event shall the annual increase in the prices exceed the
greater of (i) the percentage increase in the consumer price index or (ii) five
percent (5%) per year. If MBCS determines that a price increase is
unacceptable, it may terminate the Statement of Work on fifteen (15) days
notice at any time prior to the date on which the price increase goes into
effect.
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3.2 Most Favored Customer. QORUS represents and warrants that the prices,
terms, and conditions offered by it to MBCS through this Agreement shall, at
all times, be equal to or more favorable to MBCS than those offered to any
other customer of QORUS which purchases similar types and amounts of services.
This Agreement shall automatically be amended to include prices, terms, or
conditions that are more favorable and which have been extended to any other
customer who has purchased similar types and amounts of services so that such
prices, terms, or conditions shall be extended to MBCS.
3.3 Taxes. MBCS shall be solely responsible for and shall pay QORUS all taxes
and similar charges levied, assessed, or imposed as a result of the Services
provided by QORUS excepting QORUS franchise taxes and taxes based upon income
or gross receipts, and excluding any costs of licenses and fees which are
generally required to enable QORUS to engage in its business. All sales taxes
that may be applicable to the Services shall be collected by QORUS from MBCS
unless MBCS furnishes to QORUS exemption certificates with respect thereto.
3.4 Reimbursement of Expenses. MBCS shall not reimburse QORUS for any business
expenses unless such business expenses have been pre-approved in writing by an
MBCS authorized representative. All statements and claims submitted for
reimbursement of pre-approved expenses shall be in the form attached hereto as
Schedule B and supported by documentation as described on Schedule B or in the
applicable written pre-approval.
3.5 Invoicing. QORUS will invoice MBCS for all Services provided as provided
for in an order and for any pre-authorized business expenses. Undisputed
invoices shall be due and payable thirty (30) days after receipt of the invoice
by MBCS and all supporting documentation required pursuant to Schedule B or any
applicable Statement of Work. Invoices not paid when due shall bear interest at
the lesser of one-and-one-half percent (1-1/2%) per month or the maximum amount
permitted by law. In the event of a bona fide dispute regarding any invoice,
the undisputed portion shall be paid in accordance with the foregoing, and the
disputed portion shall be paid into an interest-bearing bank account in the
joint names of the parties hereto at a mutually agreed upon national savings
bank until resolution of the dispute, with the interest earned to be paid over
to the prevailing party.
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4. ORDERING AND PROVIDING PRODUCTS AND SERVICES.
4.1 Submission of Orders. From time to time MBCS will submit a Statement of
Work to QORUS. Each Statement of Work will set forth (a) the Services to be
provided by QORUS, (b) the prices for the Services, (c) the time within which
the Services are to be provided, and (d) any additional or modified terms which
will apply. QORUS will have five (5) business days from the date the Statement
of Work is submitted to provide MBCS with written notice of its acceptance of a
Statement of Work. If MBCS does not receive timely written notice of acceptance
from QORUS, the Statement of Work shall be deemed rejected and QORUS shall not
be required to provide the Services. Except as otherwise specified in a
Statement of Work, all of the terms and conditions set forth in this Agreement
shall apply to the Services to be provided. In the event of any conflict or
inconsistency between the terms and conditions set forth in a Statement of Work
and the terms and conditions set forth in the body of this Agreement, the terms
and conditions set forth in the Statement of Work shall be controlling.
4.2 Performance by QORUS. QORUS agrees to provide the Services (including,
without limitation, the products of any deliverables), described in the
Statement of Work. All Services shall be provided in accordance with the
schedules set forth in the Statement of Work. All Services shall be performed
and provided strictly in accordance with the terms and conditions of this
Agreement, the Statement of Work, and all applicable specifications and
instructions. MBCS may be required to provide the Services to its customers
pursuant to a schedule in the prime contract, and the failure by QORUS to
timely provide and perform the Services may result in expense and damage to
MBCS. MBCS agrees to advise QORUS in writing of all schedules contained in
applicable prime contracts. Time is therefore of the essence in this Agreement
and in the event that performance is not times, then in addition to all other
rights MBCS may have against QORUS, MBCS reserves the right to cancel, purchase
elsewhere, and hold QORUS liable, subject to the limitations set forth in this
Agreement or the applicable Statement of Work.
4.3 Force Majeure. Neither party will be deemed to be in default for any delay
or failure in performance, and either party is excused from performance and
shall not be liable for any delay in delivery, or for non-delivery, in whole or
in part, arising out of conditions caused by the occurrence of any contingency
beyond its reasonable control and without its fault or negligence. If any such
conditions occur, the party claiming force majeure excuse will promptly give
notice to the other party. Performance by both parties will be suspended for
the duration of the condition and will resume once the condition ceases to
exist.
4.4 Change Control Process. MBCS and QORUS agree that a Statement of Work may
be amended in writing to provide for any additional Services to be provided or
changes to the Services and which shall be effected through the Change Control
Process. If MBCS desires to make any changes to the Services, whether before or
after an acceptance thereof, MBCS shall notify QORUS of the proposed change in
writing (or orally, with the requested change promptly confirmed
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in writing). QORUS shall inform MBCS within five (5) business days thereafter
of the estimated cost of making such change and the effect, if any, on the
timetable for completion of the Services and provide a written proposal to
complete the Services as so changed. If MBCS accepts in writing the proposal,
the Statement of Work shall be deemed amended, to the extent of the changes
agreed to by the parties. If the parties are unable to reach agreement as to
completion of the Service as amended to take into account the changes proposed
by MBCS and such changes are due to changes required by the customer(s) of
MBCS, MBCS may terminate the Statement of Work and shall pay QORUS all fees for
Services provided through the date of termination and reasonable time and
out-of-pocket expenses incurred by QORUS with respect to the start-up for the
particular project and not yet realized by QORUS over the initial term of such
Statement of Work as measured on a straight line basis. Payment thereof shall
be in lieu of payment referenced in Section 15.2 hereof.
5. DELIVERY AND TESTING.
5.1 Delivery. QORUS shall ship all deliverables F.O.B. destination. Costs for
expediting any shipment in order to meet scheduled delivery dates will be borne
by QORUS unless otherwise agreed upon in advance and in writing by MBCS. QORUS
shall bear the risk of loss until the deliverables have been received at the
destination indicated by MBCS.
5.2 Testing.
(a) If provided for in the Statement of Work, MBCS and QORUS will perform
agreed upon preliminary tests ("beta test") during time periods specified
in the Statement of Work, to demonstrate to the reasonable satisfaction of
MBCS that the Services and deliverables can operate in accordance with the
applicable specifications.
(b) Upon completion by QORUS and as may be provided for in the Statement of
Work, MBCS will test and evaluate each Service and deliverable provided by
QORUS during a specified test period as defined in the Statement of Work
to determine whether it conforms, appears and functions in accordance with
the specifications set forth in the Statement of Work. Prior to or at the
end of the testing period, MBCS shall inform QORUS whether the Services
and deliverables developed by QORUS have passed the acceptance tests. In
the event of a failure to pass, MBCS shall advise QORUS as to which
aspects have failed and QORUS shall, at no cost to MBCS, remedy such
failure and deliver the corrected version within the time period
established in the Statement of Work for retesting, or if none, within
fifteen (15) days. In the event the corrected version is not accepted by
MBCS, MBCS may, in its sole discretion, unless otherwise set forth in the
applicable Statement of Work either (1) again advise QORUS of the aspect
of the failure and QORUS shall, in accordance with the foregoing, provide
a corrected version for retesting, or (2) terminate the Statement of Work,
receive a full refund of all monies paid by it to QORUS with
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respect to such Service or deliverable and hold QORUS responsible for any
losses or liability that may be incurred by MBCS as a result of QORUS'
failure to perform, subject to the limitations set forth in this Agreement
or the applicable Statement of Work.
6. CONFIDENTIALITY; NON-COMPETITION.
6.1 Confidentiality.
(a) Each party acknowledges that in the course of 's providing services to
MBCS it may receive information and documents concerning the other or its
customers which contain information which is confidential and proprietary
to the disclosing party and/or its customers including, without
limitation, the following: technical specifications, information
concerning current, future, or proposed Services and combinations of
Services; product and service descriptions; business data; systems,
software and hardware design, plans combinations and architecture;
functional specifications; passwords and security procedures; computer
programs; specifications; customer or prospective customer or client lists
and printouts; records, procedure; data management; marketing, sales or
strategic business plans; and any or all other information, data or
materials relating to the business, trade secrets and technology of the
disclosing party, its customers, clients, employees, business affairs, and
affiliates (all of the foregoing are collectively referred to as
"Confidential Information").
(b) Each party shall maintain all of the other's Confidential Information in
confidence, shall maintain a secure system for its storage and handling,
and shall not use or disclose the Confidential Information to any third
person unless such use or disclosure is required for information to any
third person unless such use or disclosure is required for the performance
of its obligations under this Agreement and is made pursuant to a written
confidentiality agreement at least as extensive as the confidentiality
provisions of this Agreement, and then only with the prior written
approval of MBCS. Each shall inform each of its employees, subcontractors,
and agents of the confidentiality provisions of this Agreement. Neither
the recipient party nor its employees, subcontractors, or agents will
reveal, duplicate, or otherwise make available, any portion of the
Confidential Information except on a need to know basis, nor allow any
other person to copy, reproduce, or disclose, in whole or in part, the
Confidential Information, without the prior written approval of the
disclosing party. Each party further agrees to use the other's
Confidential Information only in and for performance of its obligations
pursuant to this Agreement and agrees not to use, disclose, or exploit the
other's Confidential Information as part of or in the development of any
product, service, idea, process, invention, discovery, work, or writing of
any kind except as requested by the disclosing party.
(c) Nothing herein shall limit a recipient party's disclosure of Confidential
Information which (i) is made public by the disclosing party, (ii) the
recipient party can show was rightfully in its possession at the time of
disclosure by the disclosing party to
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the recipient party and was not acquired, directly or indirectly, from the
disclosing party or any other person in violation of a restriction on
disclosure; (iii) at the time of disclosure by the disclosing party to the
recipient party, is in the public domain or which, after disclosure by the
disclosing party to the recipient party, becomes part of the public domain
by publication or otherwise through no action or fault of the recipient
party; (iv) was rightfully received by the recipient party from a third
person having the legal right to transmit the Confidential Information
free of any obligation of confidence; (v) is independently developed by
the recipient party without use of the Confidential Information; or (vi)
which the recipient party is required to disclose by law. The recipient
party shall notify the disclosing party immediately if a subpoena or other
legal process or demand related to the Confidential Information is served
upon or received by the recipient party or any employee, subcontractor, or
agent of the recipient party, and the recipient party shall cooperate at
the disclosing party's expense in any lawful effort by the disclosing
party to contest such subpoena or other legal process or demand.
(d) QORUS shall not advertise or publish the fact that the parties have
entered into this Agreement or otherwise use the name, logo, or trademarks
of MBCS or Xxxxx North America, Inc. in any advertisement or other
publicity without the prior written consent of MBCS and subject to the
right of MBCS to revoke such consent at any time upon notice to QORUS.
6.2 Non-Competition. So long as a Statement of Work remains in effect and
thereafter for a period of twelve (12) months following its termination, QORUS
agrees that it will not, nor will it permit or allow any of its directors,
officers, employees, agents, or representatives to, directly or indirectly,
either for QORUS or for any entity in which QORUS has an ownership interest, or
as an agent on behalf of any person, firm, joint venture, partnership,
corporation, or any other entity, solicit, divert, take away, or attempt to
solicit, divert, or take away from MBCS and divert to QORUS or any affiliate of
QORUS any of the business of any customer that is disclosed by MBCS to QORUS
and with respect to which QORUS is providing Services on behalf of MBCS;
provided, however, that if either (a) MBCS, in its sole discretion, decides not
to renew its contract with such customer or (b) MBCS decides to replace QORUS
with a third party to provide the services to a customer, the preceding
restriction on competition shall not be applicable. Notwithstanding the
foregoing, MBCS understands and acknowledges that QORUS markets and distributes
its services through other third parties, and agrees that (i) nothing herein
shall be deemed to restrict in any way the right of any independent third party
who distributes services provided by QORUS ("Distributor") from pursuing any
business opportunity, and (ii) QORUS shall be permitted to provide services to
any customer brought by any Distributor, even if it could not have solicited
such customer directly as a result of its agreement
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hereunder, so long as it did not bring such customer to Distributor's attention
or provide direct assistance other than providing pricing and terms. Further,
any general advertising (whether by mail, broadcast or otherwise) by QORUS
shall not be deemed to be a "solicitation" for the purposes of this Section
6.2.
6.3 Injunctive Relief. QORUS acknowledges that any breach of the provisions of
this section of this Agreement will cause MBCS immediate and irreparable harm
for which there are no adequate remedies at law and will entitle MBCS to
immediate injunctive relief, in addition to any other remedies which may be
available. The provisions of this Section shall survive the expiration or
earlier termination of this Agreement.
7. OWNERSHIP.
(a) MBCS Intellectual Property. For purposes of this Agreement, MBCS
Intellectual Property includes: any and all patents, copyrights, trade
secret rights, MBCS Confidential Information, and other intellectual
property owned by MBCS on an MBCS customer, the ownership of which either
(i) predates the date of this Agreement, or (ii) arises exclusively as a
result of independent development by MBCS and not as a result of MBCS'
performance under this Agreement, or of MBCS' exposure to any QORUS
Confidential Information, and in either case, all derivatives thereof.
QORUS will return all MBCS Intellectual Property to MBCS upon termination
of this Agreement. MBCS grants QORUS a limited non-exclusive license to
use MBCS Intellectual Property provided by MBCS to QORUS solely to the
extent necessary for QORUS to perform its obligations under this
Agreement.
(b) QORUS Intellectual Property. For purposes of this Agreement, QORUS
Intellectual Property includes: any and all patents, copyrights, trade
secret rights, QORUS Confidential Information, and other intellectual
property owned by QORUS, the ownership of which by QORUS either (i)
predates the date of this Agreement, or (ii) arises exclusively as a
result of independent development by QORUS and not as a result of QORUS'
performance under this Agreement, or of QORUS' exposure to any MBCS
Confidential Information, and in either case, all derivatives thereof.
MBCS will return all such QORUS Intellectual Property to QORUS upon
termination o this Agreement. QORUS grants MBCS a limited non-exclusive
license to use QORUS Intellectual Property provided by QORUS to MBCS
solely to the extent necessary for MBCS to utilize the Services to be
provided by QORUS pursuant to this Agreement.
(c) Ownership of Intellectual Property. Unless otherwise expressly transferred
by QORUS, QORUS Intellectual Property shall remain the property of QORUS.
Unless otherwise expressly transferred by MBCS, MBCS Intellectual Property
shall remain the property of MBCS. Each party shall have no restriction
under
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this Agreement on its rights to use its own intellectual property for
purposes related to that party's business activities.
(d) Similar Technology. Nothing contained in this Section 7 shall prevent
either party from independently developing technology similar to that
owned by the other party provided such independently developed technology
is developed without use of the other's Confidential Information and does
not infringe any of the other party's intellectual property rights. (e)
QORUS acknowledges and agrees that MBCS may desire that certain materials
designated on Statement of Works as "Works For Hire To be Owned by MBCS"
(whether tangible or intangible) resulting or derived from any of the
Services, including but not limited to source codes pertaining to the
Services and any deliverable, and other materials developed or prepared by
QORUS and its employees, subcontractors, and agents pursuant to or in
connection with this Agreement, whether in hard copy or any electronic or
other media (all of the foregoing that are or may be subject to copyright
protection are herein collectively referred to as "Works" and all of the
foregoing, including, without limitation, the Works, are herein
collectively referred to as "Materials"), be considered works made for
hire by QORUS for MBCS. If so designated on any Statement of Work, such
Works shall be the sole and exclusive property of MBCS, whether developed,
created, conceived, or made solely by QORUS or in collaboration with any
person. In such case MBCS shall also own all intellectual property rights
in and to the Materials including, without limitation, use and derivative
use thereof, patent and copyright rights (including, without limitation,
copyrights in source code, object code, screen formats, program structure,
sequence and organization, and audiovisual elements). QORUS
(e) If, by operation of law or otherwise, any Material designated on a
Statement of Work as a "Work For Hire To be Owned by MBCS" is deemed not
to be a work made for hire, QORUS hereby irrevocably and unconditionally
sells, conveys, transfers and assigns, to MBCS and its successors and
assigns, all right, title, interest and ownership in and to all such
Materials. From time to time, upon request of MBCS, QORUS and/or its
personnel shall confirm such assignment by execution and delivery of such
assignments or other written instruments as MBCS may request. MBCS shall
have the right to obtain and hold in its own name all copyright
registrations and other protections that may be available for such
Materials and QORUS agrees to provide any assistance reasonably requested
by MBCS to perfect such protections.
(f) QORUS acknowledges and agrees that it retains no rights whatsoever in the
Materials designated on a Statement of Work as "Works For Hire To be Owned
by MBCS" including, without limitation, any right to make derivative works
and any other rights incident to copyright ownership. QORUS agrees not to
contest or challenge the rights of MBCS in and to the Materials,
including, without limitation, copyrights thereto.
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8. WARRANTIES AND REPRESENTATIONS. QORUS represents and warrants to MBCS that:
(a) it has full right, power, and authority to enter into this Agreement;
(b) this Agreement does not and will not contravene the provisions of any
agreement to which it is a party or is bound;
(c) it will comply with all applicable federal, state, and local statutes,
laws, regulations, and ordinances in the performance of this Agreement;
(d) it is adequately financed to meet all financial obligations it may be
required to meet hereunder;
(e) it will provide the Services in a professional and workmanlike manner
consistent with the highest professional standards of the industry;
(f) the Services shall be of good and merchantable quality, free of any
material defects, and comply strictly with all specifications, samples,
descriptions and representations (including, without limitation,
performance capabilities, accuracy, completeness, characteristics,
specifications, configurations, standards, functions, delivery dates,
response time, and requirements) and that should any of the Services be
defective or non-complying during the term of this Agreement, QORUS shall
promptly correct the Services at its sole cost and expense;
(g) it has the right to furnish the Services hereunder free of all liens,
claims, encumbrances, and other restrictions; and
(h) it will indemnify and save MBCS harmless from any and all damage or
liability suffered as a result of a breach of any of these warranties.
9. YEAR 2000. QORUS represents and warrants that provided that the data
supplied to QORUS by MBCS is Year 2000 compliant and is in the form requested
by QORUS, the date data QORUS receives will properly process in the hardware
and software used by QORUS to provide the Services so that (i) data involving
dates, including single-century formulas and multi-century formulas, will not
cause an abnormally ending scenario within the application or result in the
generation of incorrect values involving such dates, (ii) the date-related MBCS
interface functions and date fields include the indication of the century, and
(iii) date-related functions will include the indication of century. There will
be redesign charges if QORUS' programs need to be changed resulting from MBCS's
data that is not Year 2000 compliant. In the event that the Services, as the
case may be, fail to be Year 2000 compliant, QORUS will use its commercially
reasonable efforts to effectuate compliance (whether implementing work-arounds,
alternate solutions, remedial corrections, or otherwise) as soon as reasonably
practicable. Upon reasonable prior notice, QORUS shall provide MBCS with its
Year 2000 test plan and results.
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10. PROBLEM RESOLUTION. In addition to any other obligations of QORUS required
by this Agreement, in the event of a problem as to the performance by QORUS,
the parties agree that the following procedure will be followed:
- MBCS will be notified by QORUS via telephone once a problem has been
identified.
- QORUS will establish with MBCS an ongoing communication plan, including
who will be contacted, how often, and by which method (telephone, fax,
e-mail, etc.).
- QORUS will provide a written explanation of the problem within three (3)
days after resolution of the problem, or sooner if required. This
explanation will include:
* What occurred
* How did it happen
* Corrective action taken
* Root cause analysis
* Scope/Containment
11. LIMITATION OF LIABILITY.
(a) UNDER NO CIRCUMSTANCES SHALL MBCS BE LIABLE TO QORUS FOR A LOSS OF
BUSINESS OR PROFIT, OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES.
(b) EXCEPT WITH RESPECT TO THE INDEMNIFICATION PROVIDED IN SECTION 14 OR A
BREACH OF SECTIONS 6.1 (CONFIDENTIALITY) OR 6.2 (NON-COMPETE), UNDER NO
CIRCUMSTANCES SHALL QORUS BE LIABLE TO MBCS FOR A LOSS OF BUSINESS OR
PROFIT, OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES.
(c) Any other limitations on liability shall be as may be agreed upon by the
parties and set forth in a particular Statement of Work and applicable
only with respect to such Statement of Work.
12. INSURANCE. QORUS acknowledges and understands that since it will be
handling high value Services, it is appropriate for MBCS to require QORUS to
carry adequate insurance but that such insurance shall not act as a limit on
the liability of QORUS. QORUS shall, at its cost and expense, maintain the
following insurance with insurers satisfactory to MBCS and insuring QORUS
against losses by reason of its liability to MBCS under this Agreement or with
respect to the Services provided
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by QORUS:
Insurance Minimum Coverage
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Workers Compensation Statutory limits
Employers Liability $1,000,000 per
occurrence/aggregate
General Liability $1,000,000 per
occurrence/aggregate
(to include Contractual Liability)
Auto Liability $1,000,000 per
occurrence/aggregate
Crime and Fidelity
(including employees) $1,000,000 per
occurrence/aggregate
All such insurance shall be primary. Evidence of such insurance and coverage
satisfactory to MBCS shall be delivered to MBCS at its request. MBCS shall be
named as an additional insured on any such policy or policies and all such
policies shall require at least thirty (30) days prior written notice to MBCS
of any intention to cancel, terminate, or reduce the coverage provided thereby.
13. INDEMNIFICATION.
13.1 QORUS shall indemnify and hold MBCS harmless from and against any and all
costs, expenses, liabilities, damages, judgments, penalties, or fines
(including, without limitation, reasonable attorneys' fees and expenses) for
which MBCS may become liable or may incur or become compelled to pay whether by
way of suit, claim, settlement, or otherwise arising from the acts or omissions
of QORUS or its employees, the Services provided hereunder, or the breach of or
the performance of this Agreement by QORUS.
13.2 In addition to the foregoing, in the event MBCS is required to pay its
customer liquidated damages in accordance with the terms of a written contract
between MBCS and its customer due to the failure of QORUS to meet (a) the
delivery dates or (b) specifications or performance standards, and the terms of
such liquidated damages have been included and agreed upon by QORUS in the
applicable Statement of Work, then in addition to correction by QORUS at its
sole cost, QORUS shall reimburse MBCS for the actual amount of such liquidated
damages due MBCS's customer.
14. NON-INFRINGEMENT REPRESENTATION; INDEMNIFICATION. QORUS hereby represents
and warrants that the performance of the Services by QORUS, and the use of the
deliverables or any information or other materials or items furnished by QORUS
does not and will not violate or in any way infringe upon the rights of third
persons, including, without limitation, property, contractual, employment,
trade secrets, proprietary information and non-disclosure rights, or any
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trademark, copyright, patent or other intellectual property rights. QORUS
hereby agrees to indemnify and hold MBCS and its customers harmless from and
against any loss, claim, damage, cost, or expense of any kind, including,
without limitation, reasonable attorneys' fees, costs of arbitration and court
costs to which MBCS or its customers may be subjected by virtue of a breach of
the foregoing warranty. During the pendency of any such claim, QORUS shall
secure for MBCS and its customers the right to continue using such material, or
affected part thereof, pending a final determination of the claim, or replace
or modify such material or part thereof to make it non-infringing provided that
its functionality shall comply with the requirements of MBCS and its customer.
QORUS may not settle or compromise any claim or lawsuit without the prior
consent of MBCS if such settlement or compromise: (a) requires MBCS to forego
or relinquish any right or make any unindemnified payment; or (b) subject MBCS
to any injunction. MBCS shall have the right, at its option and expense, to
retain counsel to represent its interests in defending the claim or lawsuit.
The covenants and agreements of this section shall survive termination of this
Agreement for any reason.
15. TERMINATION.
15.1 Termination for Cause. Either party shall have the right to terminate this
Agreement or a Statement of Work:
(a) in the event of the failure by either party to perform any of its
obligations hereunder if such failure is not corrected after written
notice by the non-breaching party providing the other party with fifteen
(15) days to cure such default; or
(b) in the event the other party is declared insolvent or bankrupt or makes an
assignment for the benefit of creditors or a receiver is appointed or any
proceeding is demanded for or against the other under any provisions of
applicable bankruptcy law.
15.2 Termination for Convenience. MBCS may terminate this Agreement or any
Statement of Work at any time upon giving prior written notice to QORUS and
payment for all Services provided prior to termination plus a termination fee
in the amount of twenty-five percent (25%) of the total amount to be paid under
the Statement of Work (the "Termination Fee"). In such case, MBCS shall only be
liable for payment for the work actually completed up to and including the date
of receipt of any such written notice by QORUS plus the Termination Fee. In no
event shall the price therefor exceed the total price for the Services
requested.
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16. POST-TERMINATION OBLIGATIONS.
(a) Upon expiration or earlier termination, QORUS shall be paid any amounts
due for conforming Services completed prior to the date of termination,
less any holdback amounts if termination is for cause against QORUS. In
addition, MBCS will reimburse those expenses of QORUS which were
authorized pursuant to the terms of this Agreement and which were incurred
prior to termination.
(b) Upon termination of this Agreement or a Statement of work, or upon request
of MBCS, QORUS will surrender to MBCS all copies of the Confidential
Information of MBCS which are then in QORUS's possession, and all
memoranda, notes, records, drawings, manuals, software, and all other
materials which are the property of MBCS or which contain information
which is proprietary to MBCS. QORUS will not retain any copies of any
Confidential Information of MBCS.
(c) In addition, upon such a termination QORUS shall assist MBCS in the
orderly termination of this Agreement and the transfer of all aspects
hereof, tangible and intangible, as may be necessary for the orderly,
non-disrupted continuation of the business of MBCS and its customers.
17. SECURITY. All MBCS and customer property, information, materials, and the
Products shall be securely stored on premises. QORUS shall exercise all
reasonable care and take all reasonable and necessary procedures and
precautions to safeguard such materials to protect them from theft,
destruction, damage, misappropriation by third parties, or other loss. QORUS
shall implement security procedures designed for the protection of such
materials. QORUS and MBCS shall mutually agree on such security procedures by
written instruction and shall effect them immediately upon the execution of
this Agreement. As the need arises, such security procedures may be changed or
supplemented by mutual agreement between MBCS and QORUS. All security
procedures and precautions shall be maintained at QORUS's sole expense. In the
event QORUS discovers any breach of its security procedures and precautions,
or, in the event that QORUS discovers that any such materials have been
misappropriated, stolen, or have otherwise been tampered with, QORUS shall take
immediate and appropriate steps to remedy such breach to protect the materials
and to immediately notify MBCS, in writing and by telephone, of such event.
18. AUDIT RIGHTS. QORUS shall keep accurate records in the ordinary course with
respect to the Services provided for a period of three (3) years from the date
of the transaction. In order to verify QORUS's compliance with this Agreement,
QORUS shall, upon reasonable notice, at any time during the term of this
Agreement and for one (1) year thereafter, provide to MBCS, or its
representatives, reasonable access to inspect, examine, and audit QORUS's
operations and business records which are directly relevant to the Services and
the financial arrangements, as set forth in this Agreement. Such access will be
only for the
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following purposes: (a) to perform audits and inspections of MBCS; (b) verify
the integrity of MBCS data; (c) to examine QORUS's performance in rendering the
Services; (d) to perform audits necessary to enable MBCS or its customers to
meet applicable regulatory requirements; (e) to audit QORUS's general controls
and security practices and procedures; (f) to verify that payments made by MBCS
correspond to Services actually received; (g) to substantiate price
adjustments; and (h) to audit disaster recovery and back-up procedures. QORUS
will cooperate with and provide the auditors such assistance as they reasonable
require. If an audit leads MBCS to conclude that QORUS is not complying with
its obligations pursuant to this Agreement or that any of QORUS's business
practices related to its performance of this Agreement present a risk of
unauthorized disclosure of information, MBCS and QORUS shall use their best
efforts to reach a mutually satisfactory resolution. QORUS shall promptly
reimburse MBCS for any amounts which the inspection discloses were paid by MBCS
but were not in compliance with the terms of this Agreement.
19. DISPUTES RESOLUTION. In the event a dispute arises between QORUS and MBCS
relating to this Agreement, prior to either party pursuing other available
remedies, other than enforcement of any provision which would entitle the party
seeking enforcement to injunctive relief, specific performance or other
equitable relief as provided in this Agreement, a meeting regarding the dispute
shall be held promptly by the parties, to be attended by representatives with
decision-making authority, to attempt in good faith to negotiate a mutually
acceptable resolution of the dispute. If the parties have not successfully
concluded a resolution after a reasonable time after the first meeting, taking
into consideration the relevant facts and circumstances but not to exceed
thirty (30) days, then the parties may pursue such other remedies available to
them.
20. ADDITIONAL PROVISIONS.
20.1 Notices. All notices and correspondence pertaining to this Agreement will
be delivered by hand or certified mail, return receipt requested and postage
prepaid, or by a nationally recognized courier service, or by facsimile
transmission, and be addressed as follows:
If to MBCS:
Xxxxx Business Communications Services
Three Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile: 000 000 0000
Attn: Xx. Xxxxxxx X. Block
If to QORUS:
Xxxxx.xxx
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000 000 0000
Attn: Chief Financial Officer
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Notice will be effective only upon receipt by the party being served, except
that notice shall be deemed received seventy-two (72) hours after posting by
the United States Post Office, by the method described above. Confirmation of
receipt of any facsimile sent must be received in order to presume that the
transmission was received. Each party is responsible for informing the other of
any changes in his/her or its address by sending proper notice.
20.2 Media Releases. All media releases, public announcements, and public
disclosures by either party shall be coordinated with and approved by both
parties prior to the release thereof. Neither party shall unreasonably withhold
or delay its approval of any such release, announcement or disclosure.
20.3 Binding Nature and Assignment. Neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned by either party
without the prior written consent of the other party, which consent shall not
be unreasonably withheld. Subject to the foregoing, this Agreement and all of
the provisions hereof shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. Any assignment made
in violation of this section shall be void and of no effect as between the
parties.
20.4 No Subcontracting. This Agreement contemplates direct performance by
QORUS, and no material part of the development Services to be performed
hereunder shall be subcontracted to any third party without the express prior
written consent of MBCS which shall not be unreasonably withheld or delayed. In
all instances, QORUS shall remain primarily responsible to MBCS for any
Services subcontracted by it to third parties.
20.5 Attorneys' Fees. In the event of the bringing of any proceeding by a party
hereto against the other by reason of a beach of any of the covenants,
conditions, agreements or provisions by the other party arising out of this
Agreement, the party in whose favor the final judgment decision shall be
entered shall be entitled to have and record from the other party or parties
all costs and expenses of suit, including reasonable attorneys' fees.
20.6 Waiver. Failure by either party at any time to enforce any obligation by
the other party, to claim a breach of any term of this Agreement, or to
exercise any power agreed to hereunder shall not be construed as a waiver of
any right, power, or obligation under this Agreement, or shall not affect any
subsequent breach, or shall not prejudice either party as regards any
subsequent action.
20.7 Severability. Whenever possible, each provision of this Agreement will be
17
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be deemed restated to reflect the
original intentions of the parties as nearly as possible in accordance with
applicable law, and, if capable of substantial performance, the remaining
provisions of this Agreement shall be enforced as if this Agreement was entered
into without the invalid provision.
20.8 No Right to Use Name. QORUS may not use the name of MBCS or Xxxxx North
America, Inc., or any trademark, service xxxx, trade name, logo, or other
commercial or product designations thereof, without the prior written consent
of MBCS in each instance. Neither MBCS nor Xxxxx North America, Inc. may use
the name of QORUS, or any trademark, service xxxx, trade name, logo, or other
commercial or product designations thereof, without the prior written consent
of QORUS in each instance.
20.9 Survival. Any provision of this Agreement which contemplates performance
or observance subsequent to any termination or expiration of this Agreement
shall survive the termination or expiration of this Agreement.
20.10 Counterparts. This Agreement may be executed in several counterparts, all
of which taken together shall constitute one single agreement between the
parties.
20.11 Governing Law and Jurisdiction. This Agreement and performance hereunder
shall be governed by the laws of the State of Illinois without regard to
conflicts of laws. The parties hereto agree on behalf of themselves and any
person claiming by or through them that the sole jurisdiction and venue for any
litigation arising from or relating to this Agreement shall be an appropriate
federal or state court located in Illinois.
20.12 Entire Agreement. This Agreement and any Statement of Work constitutes
the complete and exclusive statement of the terms and conditions between the
parties, which supersedes and merges all prior proposals, understandings, and
all other agreements, oral and written, between the parties relating to the
subject matter of this Agreement. This Agreement may not be modified or altered
except by written instrument duly executed by both parties.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first set forth above.
XXXXX.XXX, INC. XXXXX BUSINESS COMMUNICATION
SERVICES
By: By:
--------------------------- -----------------------------
Title: Title:
--------------------------- -----------------------------
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SCHEDULE A
Statement of Work
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STATEMENT OF WORK #
1. Description of Products and Services; Specifications:
2. Pricing:
3. Term:
4. Additional Provisions:
(a)
(b)
(c)
5. Limitation of Liability.
6. Period to Respond to Requests for Corrections Pursuant to Section 5.2(b).
7. Works for Hire to be Owned by MBCS.
8. Additional Items: This Statement of Work is expressly subject to, and
incorporates herein the terms of, the MBCS Master Agreement between the
MBCS and QORUS, dated __________________.
XXXXX.XXX, INC. MBCS BUSINESS COMMUNICATION SERVICES
By: By:
---------------------------
-----------------------------
Title: Title:
---------------------------
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SCHEDULE B
Form of Claim for Reimbursement and Description of Documentation Required
