COMPUTERS Exhibit 10.41
NETWORKS
PROFESSIONAL OUTSOURCING AGREEMENT
BETWEEN
CATHERINES STORES CORPORATION
AND
COMPUTERS & NETWORKS, INC.
THIS AGREEMENT entered into December 10, 1996 by and between
COMPUTERS & NETWORKS, INC. (hereinafter referred to as "C&N") and
CATHERINES STORES CORPORATION (herein referred to as the "CLIENT").
WITNESSETH:
IN CONSIDERATION of the mutual promises contained herein, the
parties agree and enter into this Agreement according to the
provisions contained herein:
1. C&N agrees to perform as follows:
a) OUTSOURCING INTENT AND SCOPE. C&N shall provide
requested Information Technology (IT) related
professional outsourcing services to CLIENT which may
include, but are not limited to providing a
Network/Communication Manager (NCM) with the following
responsibilities: manage, operationally maintain and
upgrade LAN/WAN in the Memphis and New York offices,
including hardware, software, communications, data and
user security and user work stations and maintain
documentation of all network components and procedures.
The Novell 3.12 network consists of multiple servers,
including a Unix Oracle database server, a communication
server, and an NT web server. The network currently
serves 250 users, including 45 remote laptop users.
Network connections are achieved with fiber optic cable,
10baseT ethernet, and frame relay to New York Office,
routers, hubs and terminal servers. Client workstations'
Operating Environment is Windows 3.11.
Manage, operationally maintain, upgrade and expense
management of corporate data and voice communication,
including Rolm 9751 model 10 system, DS3/T1 lines and
internet circuit. Manage, maintain, upgrade and expense
management of store data and voice communications for
long distance and local access. C&N will advise on
matters of third party service, with final negotiations
to be done by CLIENT.
C&N shall provide three additional Network Analysts (NA)
that will assist and report to the NCM in the performance
of his or her duties.
The intent of this agreement is to provide personnel for
daily operations and routine user serviceable repairs as
allowed by the manufacturer. Any hardware service
requiring factory authorized personnel, as well as any
repair or replacement parts is specifically excluded.
b) WORK ORDERS. On Monday of each week CLIENT shall approve
and sign completed work orders for the preceding week,
Monday through Sunday. Work orders shall contain a
description of tasks performed and hours worked. Any
overtime reflected in the work orders shall be billed
separately at the overtime rate referenced herein.
Approved work orders shall be made a part hereof and
shall be governed by the terms and conditions of this
Agreement.
c) WORK SCHEDULE. Unless stated otherwise herein, working
hours shall be approximately 8:00am to 5:00pm Monday
through Friday, constituting approximately a 40 hour
week. C&N reserves the right to provide qualified
substitute personnel in the event of an absence due to
vacation, leave, illness, or personal leave. A certified
netware administrator and/or engineer will be provided
when the NCM is on vacation, leave, or training related
to the CLIENT's MIS department. Exceptions to this
schedule shall include circumstances beyond C&N's
control. For the purpose of overtime calculations, the
base rate shall be: $55.00 per hour for the NCM and
$40.00 per for the NAs. Work performed in excess of 40
hours shall be billed at 1.5 times the base hourly rate.
CLIENT will be provided with access to C&Ns 24 hour
dispatch telephone number for support outside the base
schedule.
d) CONFIDENTIALITY AND OWNERSHIP. C&N shall keep all
details concerning the work confidential, and shall not
distribute, sell, or disclose any part of the CLIENT's
system documentation or resulting programs to any other
party. C&N shall safeguard all the CLIENT's programs,
documentation, etc., while in its custody with the same
level of security and safety that it would use to
safeguard its own records. The confidentiality of this
Agreement shall survive any termination of this
agreement. CLIENT agrees to treat the terms of this
agreement as confidential.
e) WARRANTY. C&N warrants that its service shall be of
professional quality conforming to generally accepted IT
professional operating standards. C&N makes no other
warranties, written, oral or implied, including without
limitation any implied warranties of merchantability or
fitness for a specific purpose.
f) SECURITY. C&N agrees to comply with security regulations
in effect at the CLIENT's premises.
g) INVOICES. C&N shall invoice the CLIENT monthly for
services rendered and miscellaneous charges in accordance
with this Agreement. Terms shall be those agreed upon by
"CLIENT" and "C&N" at the execution of this Agreement and
made part hereto. Invoices shall include expenses
involved and work performed from Monday through Sunday of
each week. Overtime, as defined herein, shall be
documented on the approved work orders.
h) TERM. Agreement period will commence on December 10,
1996 and will expire at midnight December 9, 1997.
i) PERSONNEL TERMINATION. C&N will provide employees in
each employee class i.e. NCM and three NAs to service
CLIENT's account. Employees will be used interchangeably
at C&N's sole discretion to best satisfy the CLIENT's
needs on a specific project. In the event that the
employment relationship between an employee who is
performing service for the CLIENT and C&N is terminated,
C&N shall make every reasonable effort to replace the
employee with another employee of comparable background
and experience.
C&N shall terminate immediately the services rendered to
the CLIENT by any C&N employee that CLIENT determines is
not performing at an adequate level consistent with the
employee's background and experience. Prior to
termination, C&N shall have received two letters of
warning from CLIENT to improve said employee's
performance. The letter will explain specifically the
employee's lack of performance prior to the termination
of services. C&N shall make every reasonable effort to
replace such an employee with an employee suitable to the
CLIENT.
2. ADDITIONAL PERSONNEL. C&N shall make additional personnel
available to CLIENT for special projects or to supplement
current staff. The rate for additional personnel shall be:
$55.00 per hour for CNE/CNA/MCSE, $40.00 per hour for all
other personnel. Overtime and expenses shall be reimbursed in
accordance with section 1 paragraph C.
3. The CLIENT agrees to perform and to compensate C&N as follows:
a) COMPENSATION. The CLIENT shall compensate C&N for
outsourcing services at a fixed-price rate of $364,000.00
plus tax paid in twelve monthly payments on the first of
each month. The monthly invoice of $30,333.33 plus tax
not including overtime will be at the fixed-price rate
presented herein for services rendered to CLIENT. A
separate monthly invoice for overtime as well as any
reasonable travel, hotel, meals, or related expenses
involved in work at locations outside the Memphis, TN MSA
shall be reimbursed by the CLIENT, provided that such
arrangements shall be approved in advance by CLIENT.
b) TRAINING. C&N will provide ongoing training for C&N
personnel as it relates to CLIENTs existing technology
platforms, as referenced in section 1, paragraph a.
Additionally, C&N will provide substitute personnel at no
additional charge during any such training period.
Should CLIENT implement a new technology, hardware
platform, telephony system, or application software
specific to the CLIENT's operation, CLIENT agrees to
reimburse C&N for any reasonable training costs
associated with operation, use, or maintenance of said
product, provided that said product or technology is
unique or proprietary to CLIENTs operation.
c) CLIENT'S RESOURCES. The CLIENT shall provide working
space, computer time, system(s) passwords, access to
facilities equipment, systems software, magnetic media,
and supplies as required for performance of services.
d) TAX APPLICABILITY. Any applicable sales tax shall be
payable by CLIENT in addition to the fees stated herein.
4. INDEPENDENT CONTRACTOR. In making and performing this
Agreement, the parties shall act at all times as independent
contractors, and at no time shall either party make any
commitments or incur any charges or expenses for or in the
name of the other party, or be considered the agent, partner,
joint venture, employer or employee of the other party. C&N
employees are not employees of CLIENT for any purpose
whatsoever. C&N may, with prior written approval, incur
charges for CLIENT necessary for the daily operation of the
department.
5. AGREEMENT NOT TO EMPLOY. While this Agreement is in effect
and for a period of six months thereafter, CLIENT and C&N
agree that neither party shall hire or extend an offer of
employment to any of the other party's employees or former
employees, however, in the case of former employees the hiring
limitation shall expire six months after the employee's
termination. This provision may be specifically enforced.
6 SUBCONTRACT. C&N shall not subcontract or permit anyone other
than its personnel to perform any of the work, services or
other performance required of C&N under this Agreement without
prior written approval by the CLIENT.
7. INSURANCE AND LIABILITY.
a) INSURANCE. C&N shall provide xxxxxxx'x compensation
insurance coverage for all its employees. A certificate
of insurance evidencing this coverage shall be provided
to CLIENT upon request. C&N shall maintain comprehensive
general liability and property damage coverage for
injuries to persons and property damage occurring during
the performance of services by C&N under this Agreement,
with limits of $1,000,000 for bodily injury to persons
and $1,000,000 for damage to property. C&N's sole
liability for said injuries and damages shall be to
provide the above described insurance.
b) AGREEMENT LIABILITY LIMITATION.
i) CLIENTs liability shall, in the aggregate, be
limited to the total amount payable under this
Agreement.
ii) C&N shall not be deemed or held to be obligated or
accountable upon or under any warranties or
guaranties, express or implied, statutory, by
operation of law, or otherwise, in any manner or
form, beyond the express warranties set forth in
this Agreement. C&N's liability shall be limited
to the amounts already received for the portion of
the services which are in dispute and the express
liabilities set forth in the Agreement. C&N shall
not be held responsible for any lost profits or for
any claim or demand against the CLIENT by any other
party.
c) CONSEQUENTIAL DAMAGES. Neither party shall be liable to
the other for any indirect, special or consequential
damages.
d) UNCONTROLLABLE ACTS. Neither party shall be responsible
for delays or failures in performance resulting from acts
beyond their reasonable control.
e) STATUTE OF LIMITATION. No action, regardless of form,
arising out of the services under this Agreement, may be
brought by either party more than one year after the
cause of action occurred.
8. MISCELLANEOUS.
a) NOTICES. Any notices provided for in this Agreement
shall be given in writing and transmitted by personal
delivery or prepaid first class registered or certified
mail addressed as follows:
If to CLIENT: CATHERINES STORES CORPORATION
0000 XXXXX XXX
XXXXXXX, XX 00000
ATTN: XXXXX XXXXXX, NETWORK
COMMUNICATION MANAGER
If to C&N: COMPUTERS & NETWORKS, INC.
0000 XXXXXX XXXX XX.
XXXXXXX, XX 00000
ATTN: XXX XXXXXXX, PRESIDENT
b) CANCELLATION. Either party can cancel this agreement
with 60 days advance written notice.
c) AGREEMENT MODIFICATIONS. Neither party can waive or
modify any term of this Agreement unless in writing and
signed by both parties.
d) ADDITIONAL SERVICES. All additional services not covered
under this Agreement rendered to the CLIENT by C&N shall
be subject to the same terms and conditions as contained
in the Agreement.
e) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject
matter. All prior agreements are superseded hereby.
f) SEVERABILITY. In the event that the language of any
portion of this Agreement is adjudicated invalid, the
remainder of this Agreement shall remain in force.
g) GOVERNING LAW. This Agreement is governed by the
applicable Tennessee law.
h) ENFORCEMENT COSTS. The prevailing party shall be
entitled to be reimbursed for all costs and expenses
incurred to enforce the terms of this Agreement,
including reasonable attorney's fees.
i) HEADINGS. Headings used in this Agreement are for
reference purposes only and shall not be deemed a part of
this Agreement.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to
be executed by its respective authorized agent effective as of the
date first above written.
COMPUTERS & NETWORKS, INC. CATHERINES STORES CORPORATION
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxx
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Xxxxx Xxxxxxx Xxxx Xxxx
Title: President Title: VP-MIS
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("C&N") ("CLIENT")
