EXHIBIT 12.3
5/2000
PROFESSIONAL SERVICES APPENDIX
Except as specifically provided herein or in the Professional Services Dear
Associate letter and current Professional Services Price Bulletin incorporated
herein by reference, the terms of the Associate Agreement shall apply to the
provision by NEC America, Inc. ('NECAM") of Professional Services to the
Associate.
1. PROFESSIONAL SERVICES
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NECAM will provide professional services to Associate in accordance with a
Statement of Work in the form attached hereto as Exhibit A agreed to in
writing by the parties. NECAM reserves the right, in its sole discretion,
to accept or reject any proposals for professional services made by
Associate.
The term "NECAM" includes any employees or contractors retained by NECAM to
complete its obligations under such Statement of Work. The term
"Professional Services" refers to those services as more specifically
described in the Dear Associate letter, as may be amended or supplemented
in advance in accordance with the Notice provisions of the Associate
Agreement.
2. PERFORMANCE AND ACCEPTANCE OF PROFESSIONAL SERVICES
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Professional Services will be performed solely by NECAM or its approved
subcontractors. The manner, means and methods used by NECAM to perform the
Professional Services lie within the sole discretion and control of NECAM.
Upon completion of the work set forth in the agreed upon Statement of Work,
NECAM shall submit to Associate a Certificate of Completion in the form
attached hereto as Exhibit B. Within two days of receipt of such
Certificate of Completion, Associate shall countersign such Certificate
indicating its acceptance of the Work or shall submit to NECAM written
notice of specific objections thereto. Failure of Associate to submit such
written objections within two days shall constitute acceptance of the
completion of the services.
3. COMPENSATION AND PAYMENT
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In consideration of the performance by NECAM of the Professional Services
set forth in an agreed upon Statement of Work, Associate shall pay NECAM
the amount set forth on the then current NEC Professional Services Price
Bulletin or the customized quotation issued by NECAM as may be applicable.
NECAM reserves the right to require a deposit, advanced payment, progress
payments, or other assurances of payment as it deems necessary or
appropriate.
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4. EXPENSES
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Associate will be responsible for travel, economy class air or other
transportation, communications and other out-of-pocket expenses which are
reasonably necessary to provide Professional Services under this Agreement.
Except as may be specified in an agreed upon Statement of Work, NECAM will
supply, at its sole expense, all equipment, tools, materials, and/or
supplies to accomplish the work agreed to be performed.
5. INDEPENDENT CONTRACTOR
-----------------------
NECAM is an independent contractor. Neither NECAM nor any employees or
subcontractors of NECAM who provide consulting services under this
Agreement are agents or "employees" of Associate for any purpose, including
but not limited to purposes of Social Security (FICA) taxes, unemployment
insurance taxes, Worker's Compensation benefits, health insurance, or any
other benefits which typically accompany an Employer-Employee relationship.
The Company will not be liable for withholding any amounts from
Consultant's employees' gross compensation, nor will the Company provide
any of the above-mentioned benefits to any of the employees of Consultant.
Consultant will be solely responsible for withholding payment of all such
taxes, if applicable, and for the provision of any such benefits, if
desired, to the employees of Consultant, by independent means. Except as
specifically authorized in writing, neither Consultant nor any of its
employees will have any authority, implied or otherwise, to execute any
contract or other agreement on behalf of the Company, or to make any
representation, commitment, or undertaking on behalf of the Company or any
of its affiliates.
6. OWNERSHIP RIGHTS
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Any and all written materials including memoranda, notes, records and
compilations of information prepared by or for NECAM in performance of the
Professional Services will belong to NECAM.
Associate hereby grants to NECAM, and NECAM hereby accepts, the entire
right, title, and interest in and to any work product resulting from
NECAM's performance of Professional Services (whether or not such work
product is considered a work-for-hire under the copyright laws of the
United States) and to any computer or software programs which might be
developed by NECAM pursuant to the terms of this Agreement, and all
portions of such programs, including all proprietary rights therein or
based thereon, with the right to grant licenses and sublicenses to any
party, without accounting to Associate or any of its employees or end-user
customers, under such programs and all portions thereof. Associate shall
ensure that its agreements with its employees and end-user customers are
consistent with this provision and shall defend and indemnify NECAM against
any claims by any of Associate's employees or customers asserting any
right, title or interest in and to any such work product.
7. WARRANTY
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For a period of thirty days following acceptance of the work, NECAM
warrants that the Professional Services were performed in accordance with
the agreed upon statement of work. NECAM's liability for any error or
omission in the performance of the Professional Services during such
warranty period is limited
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to (1) correction or completion of the work; or (2) issuance of a pro rata
credit. NECAM shall select which of the above warranty remedies to utilize
concerning any warranty claim. In the event that Associate makes any claim
under the Professional Services warranty, Associate shall notify NECAM
promptly in writing of any such claims, and provide NECAM with an
opportunity to inspect and test any affected Products or system. The above
warranty excludes coverage for affected Products or systems which were
installed, repaired or maintained by an unauthorized service provider or
which were subjected to misuse, abuse, improper installation or
application, improper maintenance or repair, alteration, accident or
negligence in use, improper temperature, humidity or other environmental
condition (including, but not limited to, lightning or water damage),
storage, transportation or handling, unless caused by NECAM or its
authorized representative.
8. LIMITATION OF LIABILITY
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IN NO EVENT SHALL NECAM BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL OR
SIMILAR DAMAGES, SUCH AS (BUT NOT LIMITED TO) "DOWNTIME", EXCESS COSTS OR
LOST BUSINESS REVENUES RESULTING FROM NECAM'S PERFORMANCE OF PROFESSIONAL
SERVICES, ITS BREACH OF ANY OF THE PROVISIONS OF THIS APPENDIX, ITS
TORTIOUS CONDUCT IN OR RELATED TO THE PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER, A PRODUCT OR SYSTEM MALFUNCTION OR FROM UNAUTHORIZED OR IMPROPER
USE OF PRODUCTS OR SYSTEMS INCLUDING BUT NOT LIMITED TO TOLL FRAUD OR
COMPUTER VIRUSES. NECAM's liability for any errors or omissions in the
performance of Professional Services shall be limited to performing one of
the remedies under the warranty set forth above. NECAM and ASSOCIATE hereby
agree that if such limitation is declared invalid by a court of competent
jurisdiction, then NECAM's liability shall be limited solely to a U. S.
dollar amount equal to the price paid by Associate for the Professional
Services provided by XXXXX. These remedies shall be exclusive and shall be
the ASSOCIATE's sole remedies against NECAM or any of its affiliates or
subcontractors for claims arising from or relating to the provision of
Professional Services.
9. ASSOCIATE'S RESPONSIBILITIES
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Associate shall obtain, at its expense if any, all federal, state, and
local permits and licenses required for the performance of the Professional
Services. In addition, as NECAM shall not provide Professional Services
using union labor or paying wages equivalent to union pay scales, Associate
shall be fully responsible for ensuring that its utilization of
Professional Services does not violate (1) any contractual obligations it
may have relating to the use of union workers or union pay scales or (2)
any other legal obligations under applicable labor laws or contracts.
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