BASIC ORDER AGREEMENT
between
DIGITAL EQUIPMENT CORPORATION
("Buyer")
and
OAO CANADA LIMITED / OAO INTERNATIONAL CORPORATION
("Seller")
for
[xxxxxx xxxxxx] Enterprise Services
BOA Number: 23839
Contract Date: April 1, 1997
Contract Expiration Date: March 31, 2000
[Confidential Treatment requested for redacted portions of document]
TABLE OF CONTENTS
Section I Scope of the Agreement
Section II Purchase Orders
Section III Purchase Period
Section IV Pricing
Section V Delivery
Section VI Payment
Section VII Warranty
Section VIII Confidential Information and Advertising
Section IX Indemnification
Section X Insurance
Section XI Intellectual Property Interests and Indemnity
Section XII Independent Contractor
Section XIII No Implied License
Section XIV Termination for Cause
Section XV Termination for Convenience
Section XVI Force Majeure
Section XVII Set-off
Section XVIII Notices
Section XIX Flow Down Clauses
Section XX Survival
Section XXI Compliance with Laws
Section XXII General
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Exhibit A Statement of Work/Services Provided by Seller
Exhibit B Flow Down Clauses
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Section I - Scope of Agreement
A. This Basic Order Agreement Is made by DIGITAL EQUIPMENT
CORPORATION ("Buyer") and OAO CANADA LIMITED and OAO INTERNATIONAL
CORPORATION ("Seller"). Buyer has entered into an Agreement with
[xxxxxx] for the provision of Services to [xxxxxx] and its affiliates
("End Users") known as the [xxxxx] Enterprise Agreement ("[xx]
Agreement"). The terms and conditions stated in this Agreement
exclusively govern the anticipated purchase of services by Buyer from
Seller, for the purpose of having Seller furnish services to Buyer or
End Users, in the event Seller is so requested by Buyer. The services
to be provided by Seller shall be those Services known as described in
the Statement of Work (SOW) attached hereto as Exhibit A. Exhibit A
may be supplemented from time to time by Statements of Work attached
to Purchase Orders for Seller's provision of the services at specific
End Users' sites. The term "Services" as used herein shall include the
services described in Exhibit A as well as the services described in
any supplemental Statements of Work attached to Purchase Orders
hereunder.
The parties hereto understand that the provision of Services may
involve the supply of goods necessary to render Services under this
Agreement, and therefore agree that, except as expressly stated
otherwise, the term "Services" shall be understood to include the
supply of any such service parts. It is further understood that the
cost of any such service parts to the Buyer shall be contained in the
fee charged by Seller for the Services provided hereunder.
THIS AGREEMENT IS NOT A REQUIREMENTS CONTRACT AND NEITHER OBLIGATES
THE BUYER TO PURCHASE NOR THE SELLER TO PROVIDE ANY SERVICES BUT ONLY
ESTABLISHES THE TERMS AND CONDITIONS FOR SUCH PURCHASES IF THEY OCCUR.
B. If any term of this Agreement conflicts with any term relating to the
purchases of Services contained in any issued purchase order, this
Agreement shall take precedence.
Section II - Purchase Orders
A. Buyer will authorize the provision of Services by releasing
telegraphic or telephonic orders or its Purchase Order Form ("Purchase
Order"). Buyer shall use reasonable efforts to send a confirming
purchase order ten (IO) days after issuing such telegraphic or
telephonic orders. Each purchase order shall reference this
Agreement by number and shall include any supplemental Statement
of Work applicable to the PO.
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B. Seller shall sign and return the acknowledgment copy of each
Purchase Order within thirty (30) days after receipt. If Seller
fails to return such copy, Buyer will conclusively presume that Seller
accepts any Purchase Order which conforms to this Agreement.
Acceptance by Seller is limited to Buyer's offer as contained in this
Agreement and the Purchase Order as accepted by the Seller.
C. In the event the first month of coverage of Service is less than a
full month, the charge for that first month shall be calculated on a
pro-rata basis at the rate of one thirtieth (1/30) of the basic
monthly charge for each day of coverage.
Section III - Purchase Period
This Agreement shall commence on April 1, 1997 and shall end upon
completion of all Services covered by Purchase Orders issued and
accepted hereunder. This Agreement shall expire on March 31, 2000.
Notwithstanding any termination of this Agreement, and unless
otherwise agreed to in writing, Seller's obligations shall continue
with respect to any Purchase Orders entered into with Buyer for the
term of those Purchase Orders.
Section IV - Pricing
A. The Seller pricing for Services shall be set forth in the Purchase
Order or related Statements of Work. Prices shall remain fixed for
the period identified therein.
B. Seller expressly acknowledges and agrees that the prices and any
discounts established are lawful.
C. Prices include all taxes except sales, use and other such taxes
imposed upon the sale of Services. Any such sales, use or like
taxes required to be paid by the Buyer shall be specifically listed
in the appropriate invoices. If any purchase by Buyer is exempt from
such taxes, Buyer shall so indicate in their respective purchase order
and advise Seller of the respective tax exemption number.
Section V - Delivery
Seller shall perform all Services in time period as specified in the
Purchase Order or related Statements of Work. TIME AND RATE OF
DELIVERY OF SERVICES ARE OF THE ESSENCE OF ALL PURCHASES MADE UNDER
THIS AGREEMENT.
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Section VI - Payment
Buyer shall pay Seller for performance of all Services on a monthly
basis as set forth in each Purchase Order and payment shall be made
[xxxxxx xxxxx xxxx] after receipt of Seller's correct and conforming
invoice.
Section VII - Warranty
A. For a period of [xxxxx xx xxxx] from the date of the provision of any
Services, Seller hereby warrants that:
1. all Services rendered hereunder shall conform to the service
description stated in the Statements of Work and shall otherwise
be performed in a good, safe, workmanlike manner, and in
accordance with applicable manufacturers practices and procedures
at the time such Services are performed; and
2. all Services rendered hereunder shall be performed by persons who
are adequately trained and skilled such that they are capable of
rendering the Services in a good, safe, and workmanlike manner;
and
3. all such persons shall be fully equipped with the required tools,
systems, spare parts, documentation and diagnostic and test
equipment as is necessary to perform the Services unless
otherwise specified in a SOW; and
4. all service parts furnished by Seller through the provision of
Services shall be free from defects in material, workmanship and
design, and shall conform to the original manufacturer's
specifications in effect at the time of installation; and
5. all service parts furnished by Seller shall be free of all liens
and encumbrances; and
6. Seller has acquired and shall maintain in effect all licenses and
permits necessary for furnishing Services, and the provision of
Services by the Seller shall not violate any other contractual
obligations which Seller may have to any other party.
B. Seller hereby acknowledges that all of the above stated warranties run
to Buyer and to End Users.
[Confidential Treatment requested for redacted portions of document]
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Section VIII - Confidential Information and Advertising
A. Seller shall maintain as confidential and shall not disclose to any
person outside of its employ, or use for purposes other than
performance of its obligations pursuant to this Agreement, any
information which Seller learns by virtue of this Agreement, such as
specifications, technical information, business data, and other
confidential information. Upon termination of this Agreement, Seller
shall promptly return to Buyer all confidential information including
copies thereof Seller further agrees to maintain Buyer or End Users
information in confidence in accordance with the terms of the [xxxxx]
Enterprise Agreement.
B. Buyer shall maintain as confidential any Seller confidential
information that Buyer shall receive as a result of the work carried
out under this agreement. Upon termination of this Agreement, Buyer
shall promptly return to Seller all such confidential information
including copies thereof.
C. Without the other party's prior written consent neither party shall
in any manner advertise, or publish the existence or terms or any
transactions under this Agreement.
Section IX - Indemnification
Seller hereby agrees to release, defend, indemnify, and hold Buyer,
including its officers, directors, agents and employees, harmless from
and against any and all claims, losses, expenses (including reasonable
attorney's fees), demands, or judgments ("Claims") for personal
injury, damage to tangible personal property, or damage to real
property, which arise out of or are directly related to:
1. the acts, errors, omissions or negligence of Seller while on the
property of Buyer or End Users, regardless of whether the loss,
damage or injury resulting from same occurs after the Seller
has left such property; or
2. the presence of the equipment, tools, or goods used or supplied
by Seller in the performance of services under this Agreement on
the property of Buyer or End Users;
3. the negligent use by Seller of Buyer's equipment, tools or
facilities ("Equipment") whether or not any Claims are based
upon the condition of the Equipment or Buyer's alleged
negligence in permitting its use. Permission by Buyer to use
the Equipment shall be gratuitous.
[Confidential Treatment requested for redacted portions of document]
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4. any Claims brought by End Users arising out of Seller's
performance of its obligations under this Agreement.
Section X - Insurance
A. Seller agrees to carry at all times, and with companies acceptable to
Buyer, insurance of the kinds and in the amounts listed below:
1. Worker's Compensation - Statutory limits in each state or country
in which Seller is required to provide Worker's Compensation
coverage.
2. Employer's Liability - not less than $500,000 per employee.
3. Comprehensive General Liability - Including Contractual
Liability, Independent Contractor's Liability, and Personal
Injury/Property Damage Coverages in a combined single limit
of not less than $ 1,000,000.
4. Automobile Liability - For owned, non-owned, and hired vehicles
in a combined single limit of not less than $1,000,000.
5. Umbrella Liability - a combined single limit of not less than
$2,000,000.
B. Seller further agrees to furnish Buyer with Certificates of Insurance
evidencing the specified coverages and stating that:
1. the policies may not be changed or terminated without at least
ten (I 0) days' prior written notice to Buyer.
2. the policies contain waivers of the insurers subrogation rights
against Buyer.
Section XI - Intellectual Property Interests and Indemnity
Seller shall defend, at its expense, any claim against Buyer alleging
that the Services provided under this Agreement infringe any patent,
copyright, trademark, trade secret, mask work, or other intellectual
property right, and shall pay all costs and damages awarded, if Seller
is notified promptly in writing of such a claim. If a final
injunction against Buyer's use of the Services results from such a
claim (or, if Buyer reasonably believes such a claim is likely) Seller
shall, at its expense, and at Buyer requests, obtain for Buyer the
right to continue using the Services, or
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replace or modify the services so that they become noninfringing, but
functionally equivalent. Seller shall further indemnify, defend and
hold harmless from and against any and all damages, losses and
expenses incurred by Buyer as a result of claims brought against Buyer
by End Users or any other third party and arising out of Seller's
performance under this Agreement.
Section XII - Independent Contractor
Seller shall render all Services under this Agreement as an
independent contractor, not as an employee or agent of Buyer. Seller
shall not hold itself out as the agent or employee of Buyer in
connection with the performance of Services under this Agreement, and
Seller shall so instruct and supervise its employees, or agents to
insure that they comply with these provisions.
Section XIII - No Implied License
A. Both parties understand that Buyer owns various patents, copyrights,
trademarks, trade secrets, and other proprietary rights which may
cover, be contained in, or otherwise relate to a portion or ail of the
various computers or peripheral devices which Seller may service
pursuant to this Agreement.
B. The parties understand that neither the terms and conditions of this
Agreement nor the performance or acts of either party arising out of
this Agreement or related to Buyer's request for or use of the
services may be considered in any way as a grant of any license
whatsoever under any of Buyer's present or future patents, copyrights,
trademarks, trade secrets or other proprietary rights; nor is any such
license granted by implication, estoppel or otherwise.
C. The parties agree that both parties reserve all rights to bring suit
for infringement of its patents, copyrights, trademarks, trade
secrets, and other proprietary rights against all manufacturers,
sellers and users including Seller, which infringe their
respective proprietary rights, and that each party intends to enforce
those rights.
D. To the extent that any fiduciary or other similar duties are
established by this Agreement, it is understood and agreed that such
duties are not inconsistent with and will not prevent either party
from bringing said suits for infringement of its patents, copyrights,
trademarks, trade secrets, and other proprietary rights.
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Section XIV - Termination for Cause
A. The occurrence of any of the following constitutes a breach and
is cause for Buyer's termination of this Agreement and/or its
Purchase Orders:
1. Seller fails to perform Services in accordance with this
Agreement.
2. Seller fails to perform any material provision of this Agreement
or Buyer's conforming Purchase Order.
3. Seller assigns this Agreement, or any obligation or right under
it (the word "assign" to include, without limitation, a transfer
of a major interest in Seller) or merges with a third party,
not a parent or subsidiary company, without Buyer's prior
written consent, which Buyer shall not unreasonably withhold.
4. Seller becomes insolvent or makes an assignment for the benefit
of creditors, or a receiver or similar officer is appointed to
take charge of all or part of Seller's assets.
B. Seller must cure any of the above breaches and notify Buyer of such
cure within thirty (30) days from receipt of a written notice to cure
from Buyer. If Seller fails to so cure, Buyer may terminate this
Agreement and/or Purchase Orders under it by giving Seller
written notice. Buyer shall have no liability except for payment
of any balance due for conforming Services delivered before the end
of the cure. Buyer may, at its option, end Seller's ability to cure in
the event of Seller's material breach of any provision(s) of this
Agreement more than two (2) times in any twelve (12) month
period.
Section XV - Termination for Convenience
Buyer may terminate this Agreement or any Purchase Order under it for
convenience [xxxxx xxx xxx] after giving the Seller written notice unless
otherwise specified in a SOW. Buyer's [xxx] liability to Seller for such
termination shall be to pay Seller any [xxxxx xxxx xxx] for conforming
Service:
1. performed before receipt of Buyer's termination notice; and
2. ordered by Buyer and actually performed within [xxx xxx xxx]
after Seller's receipt of the termination notice.
[Confidential Treatment requested for redacted portions of document]
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Section XVI - Force Majeure
Neither party shall be liable for failure to perform any of its
obligations under this Agreement during any period in which such
performance is delayed by fire, flood, or other natural disaster, war,
embargo, riot, or the intervention of any government authority
provided that the party so delayed immediately notifies the other
party of such delay. If Seller's performance is delayed for these
reasons for a cumulative period of thirty (30) days, or more, from the
date of such notice, Buyer may terminate this Agreement, or any
Purchase Order issued under this Agreement by giving Seller written
notice. If Buyer terminates, its sole liability under this Agreement
will be to pay for conforming Services delivered by Seller before the
termination date.
Section XVII - Set-off
Buyer shall have the right at any time to set off any amounts owed by
Buyer to Seller pursuant to this Agreement, against any amounts owed
by Seller, or any of its affiliates, to Buyer.
Section XVIII - Notices
Any notice permitted or required to be given under this Agreement
shall be deemed given upon delivery, if delivered by hand, or upon
posting if sent by registered or certified mail, return receipt
requested, to a party at the address set forth below, or to such other
address as the respective party may designate by notice delivered
pursuant to this Section XIX. Any telegraphic notice shall be deemed
given upon receipt, provided that such notice is followed within three
(3) days by written notice given in accordance with this Section XIX.
If to Seller: X. Xxxxxxx If to Buyer: X. Xxxxxx
OAO Canada Limited Digital Equipment Corporation
Xxxxx 000, 000 Xxxxxxx Xxx X 000 Xxxxx Xxx XX
Xxxxxx, Xxxxxxx X X X 5Z9 Xxxxxxx, Xxxxxxx X0X 0X0
With copies to: X. Xxxxxxx With copies to: X. Xxxxx
OAO Canada Limited Digital Equipment Corporation
Suite 520, 220 Laurier Ave W Suite 900, Two Penn Plaza
Ottawa, Ontario X X X 5Z9 New York, New York
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Section XIX - Flow Down Clauses
Seller agrees that in delivery of all services under this agreement
that it shall comply and be subject to with all contractual
obligations undertaken by Buyer in Agreements with End Users
("Flow-Down Clauses") which are attached hereto as Exhibit B. In the
event of a conflict between the terms and conditions of any FlowDown
Clause and any term of this Agreement, the term of the Flow-Down
Clause shall prevail.
Section XX - Survival
The following provisions of this Agreement, including any related
Exhibits, shall survive expiration or termination of this Agreement:
Warranty, Intellectual Property Interests Indemnity, Confidential
Information and Advertising, Indemnification, Insurance, Compliance
with Laws, General, Notices, and No Implied License.
Section XXI - Compliance with Laws
A. Seller shall use its best effort to insure that all Services performed
under this Agreement shall comply with all applicable United States
and foreign laws and regulations including, but not limited to,
emission and safety standards, OSHA, pricing and discounts, the
Fair Labor Standards Act of 1938 (29 USC 201-219), the
Contract Work Hours and Safety Standards Act (40 USC 327-332),
the Toxic Substance Control Act of 1976 (15 USC 2601), all laws
restraining the use of convict labor, and Workers' Compensation
Laws. Upon request, Seller agrees to certify compliance with any
applicable law or regulations. Seller's failure to comply with any
of the requirements of this Section XXI shall be considered a
material breach of this Agreement.
B. The following statutes and Executive Orders (E.O.'s) together with
regulations issued thereunder are made part of this Agreement if
applicable: E.O. 11246, Equal Employment Opportunity; E.O. 11625,
as amended, Minority Business Enterprises; E.O. 12138 Women-Owned
Business Concerns; Section 503 of the Rehabilitation Act of 1973 as
Amended, (20 USC 793); and Section 402 of the Vietnam Era
Veterans Readjustment Assistance Act of 1974, as Amended, (38 USC
2012).
C. Digital Equipment Corporation is a major defense contractor within the
meaning of ten (10) U.S.C.s.2397b and 2397c. Seller agrees not to
provide compensation to any person in the performance of this
Agreement in violation of this statute, and agrees to report directly
to the Secretary of Defense, the information required for employees,
agents or subcontractors of Seller.
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D. The provisions of the Clean Air Act (42 USC 7401 et seq.) and the
Clean Water Act (33 USC 1251 et seq.) are made a part of this
Agreement if applicable.
E. The provisions of any applicable state Right-to-Know laws and
regulations are made a part of this Agreement. A copy of the
applicable Material Safety Data Sheets, including updates, shall be
provided by Seller as required under such laws and regulations.
Section XXII - General
A. Only the authorized representatives of the parties may amend or waive
provisions of this Agreement. If either party fails to enforce any
term of this Agreement, failure to enforce on that occasion shall not
prevent enforcement on any other occasion, unless otherwise provided
herein.
B. All rights and remedies conferred by this Agreement, by any other
instrument, or by law are cumulative and may be exercised singularly
or concurrently. If any provision of this Agreement is held invalid
by any law or regulation of any government or by any court, such
invalidity shall not affect the enforceability of other provisions
herein. This Agreement and any Purchase Orders issued hereunder shall
be governed by and interpreted in accordance with the laws of the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the
__________ day of __________, ______.
OAO CANADA LIMITED/ DIGITAL EQUIPMENT CORPORATION
OAO INTERNATIONAL CORPORATION
By:_____________________________ By:_____________________________
(Duly Authorized) (Duly Authorized)
X. Xxxxxxx
_____________________________ _____________________________
(Typed Name) (Typed Name)
Senior Vice President
_____________________________ _____________________________
(Title) (Title)
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