EXHIBIT 10.25
CONTRACT FOR THE SUPPLY OF CONFERENCING SERVICES
DESIGN DEVELOPMENT AND IMPLEMENTATION
This Agreement made between:
CONCERT GLOBAL NETWORKS LIMITED, a company organised and existing under the
laws of England, with its registered office at 00 Xxxxxxx Xxxxxx, XX0X 0XX,
Xxxxxx (hereinafter "Concert"), and
ACT TELECONFERENCING SERVICES, INC., a company organised and existing under
the laws of Minnesota, with its principal office located at 0000 Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx (hereinafter "ACT"),
(individually referred to herein as a "Party" and collectively as the
"Parties");
WHEREAS, Concert desires to implement a seamless global audio conferencing
platform that will enable Concert to enhance its current conferencing service
design and capabilities, and establish a conferencing support function for
authorised distributors and end-users of Concert conferencing services; and
WHEREAS, in response to Concert's Technical Requirements document, dated March
30, 1998, for supply of Teleconferencing Support Services (the "SOR"), ACT
provided a proposal (the "Response"), that was accepted by Concert subject to
agreement on terms and conditions; and
WHEREAS, the Parties have agreed the terms and conditions to establish and test
ACT's proposed solution architecture for the supply of conferencing services to
demonstrate that it will meet the requirements of the SOR, as proposed in the
Response, and wish to set forth their agreement in a written contract;
NOW, THEREFORE, it is agreed as follows:
1. SCOPE OF AGREEMENT
1.1 ACT agrees to supply conferencing services, including design and
implementation of a turnkey reservation system and a turnkey billing
system, development of site-specific software, implementation and project
management and the hardware and software associated with these activities,
all as more fully described herein to Concert in accordance with, and
subject to, the provisions of this Agreement.
1.2 Concert agrees to provide support as necessary for this Project and to meet
the Dependencies set forth in Appendix 4.
2. DEFINITIONS
In this Contract the following expressions shall, unless the context
requires otherwise, have the following meanings:
"Accepted" means the point at which the Project elements have been tested
and approved in writing by Concert in accordance with Appendix 1, Section
2.12, and an agreed acceptance test plan.
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"Acceptance Test Plan" or "ATP" means the performance criteria for the
Project as set forth in Appendix 4 at Section 10.6. Upon completion
performance criteria identified as "TBD" in Appendix 4 shall be
incorporated into this Agreement by reference.
"Agreement" means this document made between Concert and ACT, including
appendices, exhibits, and/or schedules hereto.
"Authorised Distributor" means British Telecommunications plc, MCI
Communications Corporation, and any entity with which Concert or BT or MCI
has contracted as a subdistributor of Concert services.
"Deliverables" means those elements of the Project to be provided by ACT,
as set forth in Appendices 2 and 3, to meet the requirements of Appendices
1 and 4.
"Effective Date" means the date on which the Parties have executed this
Agreement or if executed on different dates, the later thereof.
"End-Customer" shall mean the party with whom Concert or one of its
Authorised Distributors has contracted to provide Concert conferencing
services.
"Information" shall mean all information whether written or oral or in any
other form including, but not limited to documentation, specifications,
reports, data notes, drawings, models, patterns, samples, software,
computer outputs, designs, circuit diagrams, inventions (whether patentable
or not) and know-how obtained from either party in connection with the
performance of the Agreement, and all information in relation to Concert's,
Authorised Distributors' or End-Customers' affairs, business or business
practices, which comes to ACT's knowledge during the period of this
Agreement, including but not limited to the existence of this Agreement and
any provisions of this Agreement.
"Intellectual Property" shall mean any patent, trade secret, copyright,
know-how, network designs, system designs and platform development or other
intellectual property provided or developed pursuant to this Agreement.
"Intellectual Property Rights" shall mean patents, utility models, design
patents, registered designs, copyright of any kind, semi-conductor
topography rights, design rights and any rights of a similar nature in any
country of the world, including rights in trade secrets and confidential
information where such rights arise and includes applications therefor but
excludes trademarks.
"Platform" means the conferencing system owned and operated by ACT and
utilised by ACT to provide the Deliverables.
"Response" means ACT's Global Teleconferencing Proposal, dated March 5,
1998, with amended pricing thereafter, responding to Concert's SOR and
duplicated in Appendix 2 to this Agreement.
"Software" means all software relevant to Concert in respect of the Project
including but not limited to all source code and object code whether in
machine readable, optically readable or any other format.
"Project" shall mean any or all of the design, development, hardware,
software, documentation and training to be supplied to Concert by ACT
hereunder in order to provide the Deliverables.
"SOR" shall mean Concert's Teleconferencing Support Services Technical
Requirements, dated 5/28/98 and duplicated in Appendix 1 to this Agreement.
"Support Requirements" shall mean the final working conferencing elements
that will be available from ACT at the end of this Development and
Implementation and are set forth in Appendix 4. The full terms
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and conditions governing the actual provision of the conferencing services
to Concert by ACT shall be provided in a separate agreement.
3. TERM
This Agreement shall commence on the Effective Date and continue until the
Project has met the Acceptance Test Plan and final payment has been made,
unless terminated earlier by a Party as provided herein.
4. PAYMENT
4.1 At the time this Agreement was executed, Concert has been invoiced by
ACT for USD$26,200 covering the application design and consulting
charges for the Project. The remaining development and implementation
charge of USD$223,800 shall be due and payable by Concert upon
successful completion of the Acceptance Test Plan for each Milestone
and at the payment increments set forth in Appendix 3. There are no
additional time, materials, travel, taxes or other charges for the
Project.
4.2 Any sum due ACT hereunder shall be invoiced and paid in accordance
with Appendix 3 Milestones and Appendix 5. ACT must include a valid
purchase order number on its invoice, which shall be provided by
Concert.
4.3 Payment shall be made in United States Dollars to the account
specified by Contractor.
5. ACT'S UNDERTAKINGS
ACT shall be responsible for providing the Deliverables set forth in
Appendices 2 and 3, to meet the requirements of Appendices 1 and 4.
6. CONCERT'S UNDERTAKINGS
Concert shall be responsible for providing all necessary support to meet
the Dependencies set forth in Appendix 4.
7. ACCEPTANCE AND REJECTION
7.1 ACT shall participate fully in all Acceptance Testing. For
Deliverables subject to an Acceptance Test Plan and requiring approval
by Concert, Concert shall, within ten (10) business days of receipt of
ACT's statement that the Deliverable is complete, review the
deliverable and approve it or notify ACT in writing of non-approval,
documenting in reasonable detail any and all material defects in the
deliverable. ACT shall, upon receipt of such notice, use its best
efforts to correct any such material failures and shall notify Concert
of its completion thereof. Concert shall, after receipt of said
notice, review the deliverable and report. Concert shall do so
promptly using diligent efforts, but in no event shall such process
exceed ten (10) days. This cycle shall be repeated as necessary. A
work product Deliverable shall be deemed approved by Concert if
either:
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7.1.2 Concert notifies ACT in writing of its approval and the
approval date shall then be the date of such notice;
7.1.3 Concert fails to notify ACT in writing within the applicable
time period of any material defect in the deliverable and the
approval date shall then be the last day of the said period.
7.2 In the event Concert places in productive use any portion of a
Deliverable that has not been deemed approved by Concert, both
Parties shall remain liable to continue to follow the procedure
outlined in Section 7.1 until the Deliverable is deemed approved.
7.3 Any delay in the completion of Deliverables that is not the result
of unreasonable action or inaction by Concert, shall entitle Concert
to liquidated damages, as provided elsewhere in this Agreement,
until final acceptance of the delayed Deliverables by Concert.
8. CONTRACT CHANGE PROCEDURE
8.1 The representatives of Concert and ACT as nominated in Section 25.6
hereof (`Notices'), shall be the only people who may make or receive a
formal proposal for a variation to this Agreement to or from the other
Party.
8.2 No such variation shall be effective unless confirmed in writing by the
other Party. A Party shall confirm to the other within 10 days of receipt
of a written instruction to proceed with any such variation or its
intention to negotiate the proposed variation in accordance with Section
8.3 below.
8.3 Upon ACT's issuance of such request or receipt of each such request from
Concert, ACT will evaluate the impact that the Change Request will have
on the resources required by ACT to perform its requirements hereunder,
the Appendix on which such requirements are then being performed, and the
charges then payable to ACT hereunder. ACT will notify Concert as to the
results of such evaluation (the "Change Proposal") as soon as reasonably
feasible following the issuance or receipt of the Change Request, which
notice will be submitted in writing if so requested by Concert.
8.3.1 To the extent that the changes set forth in the Change Request can
reasonably be performed within the milestone requirements then
established for the applicable Deliverables without an increase in the
resources then being utilised therefore, there will be no adjustment to
ACT's charges hereunder.
8.3.2 In the event the Change Proposal contemplates an increase in ACT's
charges hereunder or an additional charge payable to ACT therefor and
Concert so requests, ACT and Concert will work together in good faith to
adjust the milestone requirements and/or priorities with respect to the
other requirements being performed by ACT hereunder so as to permit such
Change Request to be implemented without an increase in ACT's charges.
8.3.3 If the milestone requirements and/or priorities with respect to the other
requirements being performed by ACT cannot be adjusted to accommodate the
Change Request without an increase in ACT's charges, ACT shall provide to
Concert a good faith estimate of the additional charges required to meet
the requirements of the Change Request. This increase shall be amended as
described in paragraph 8.4 below.
8.4 Following agreement of such variation, Concert will manage the issue of
an amendment to this Agreement as necessary. Any increases or decreases
in price and changes to delivery timescales as a result of such
variation(s) shall be reasonable, calculated according to the prices in
the Agreement and subject to negotiation between Concert and ACT.
8.5 In the event Concert requests ACT to provide additional services or
functions which are not covered in this Agreement, ACT and Concert shall
execute an additional addendum or addenda referencing this Agreement to
provide such additional services or functions, which shall be provided at
rates expressly agreed in writing. Any such additional addendum or
addenda shall be incorporated herein by reference and shall be subject to
the terms and conditions hereof.
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9. PROTECTION OF DOCUMENTS AND SOFTWARE
9.1 ACT shall take suitable precautions to protect all documentation and
Software generated or required for this Agreement against loss of any
kind. Upon the release of each Software or documentation update a set of
the latest Software and documentation (relevant to the Deliverables to be
provided to Concert under the Agreement) shall be stored by the
Contractor in a safe location remote from ACT's normal work premises.
9.2 ACT shall select an escrow agent, establish an escrow agreement and
maintain an escrow account for all Software, technologies and related
applications and IP developed in the course of the Project which shall
give Concert access to the Intellectual Property developed pursuant to
the Project in the event of termination of this Agreement pursuant to
Section 13 ("Escrow Agreement"). Concert shall pay the fees associated
with this escrow agreement and shall be allowed to approve the escrow
agent selected by ACT and to review and require changes to the Escrow
Agreement with ACT prior to acceptance of the Escrow Agreement by ACT.
The Escrow Agreement shall be put in place as soon as reasonably
practicable.
10. INTELLECTUAL PROPERTY LICENSE
10.1 The Intellectual Property used or developed by ACT pursuant to
completing the Project and providing the Deliverables ("Project
IP") shall be owned by ACT and shall be used by ACT exclusively
to support the Project, Deliverables and other services provided
to Concert for three years following acceptance of all
Deliverables per Section 7 of this Agreement. With respect to
such Project IP, Act hereby gives Concert an irrevocable, non-
transferable, paid-up license to the Project IP that may be
developed by ACT pursuant to this Project and shall license the
IP exclusively to Concert for three years following
expiration/termination of this Agreement. This license allows
Concert to:
10.1.1 make, use and sell goods and services based
thereon or interoperating therewith or becoming
part thereof and to display and perform the works
publicly, all for the purposes of furnishing
Concert conferencing services to End-Customers;
and
10.1.2 Sublicense Authorised Distributors to use, and to
sublicense other Authorised Distributors to use,
the Project IP licensed from ACT in the same
manner as set forth for Concert in 10.1.1; and
10.1.3 grant Concert's Authorised Distributors the right
to grant sublicenses to the Authorised
Distributors' customers where such licenses are to
enable the receipt and usage of Concert
conferencing services by the End-Customers where
necessary.
10.2 The Escrow Agreement referenced in Section 9.2 shall include a
clause giving Concert an irrevocable, non-transferable, paid-up
license to the Project IP that may be developed by ACT pursuant
to this Project and shall license the Project IP exclusively to
Concert. This license allows Concert to:
10.2.1 make, use and sell goods and services based
thereon or interoperating therewith or becoming
part thereof and to reproduce the works therein in
copies, sell or otherwise distribute to the pubilc
copies of the works alone or incombination with
other works, prepare derivative works therefrom
and display and perform the works publicly, all
for the purposes of furnishing Concert
conferencing services, and interface, adapt,
modify or develop an Authorised Distributor's
network for the purpose of enabling such network
to support Concert conferencing services provided
by Concert and to distribute such Concert
conferencing services; and
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10.2.2 Sublicense Authorised Distributors' use, and to
sublicense other Authorised Distributors to use,
the Project IP licensed from ACT to make, use and
sell goods and services based theron or
interoperating therewith or becoming part thereof
and to display and perform the works publicly, all
for the purposes of furnishing Concert
conferencing services to End-Customers; and
10.2.3 Grants Concert's Authorised Distributors the right
to grant sublicens to the Authorised Distributors'
customers where such licenses are to enable the
receipt and usage of Concert conferencing services
by the End-Customers.
10.3 ACT represents and warrants that it has the right and power to
grant Concert and the other potential licensees set forth above
the licenses granted by it under this Agreement.
10.4 ACT warrants that the Project IP licensed pursuant to this
Agreement is a full and accurate reproduction of the Project IP
in ACT's possession. In the event it is not, ACT shall supply
the appropriate corrections as soon as reasonably practicable.
11. STATUS REPORTS
ACT shall provide Concert with weekly status reports of information
relevant to the provision of the Deliverables. The form and content of
each type of report shall be agreed between the Parties. ACT will
provide any additional information as Concert may reasonably request
(including statistical information).
12. LIQUIDATED DAMAGES/CREDITS
12.1 Where, except as proven to be a direct result of an Event of Force
Majeure, as defined elsewhere in this Agreement, or an event for which
Concert is directly or indirectly responsible, the provision of
Deliverables or another obligations of ACT are delayed beyond the
agreed date for implementation or interrupted, as provided below,
Concert shall be entitled to the liquidated damages as follows.
12.2 ACT shall provide Concert with the Deliverables outlined in this
Agreement on the agreed Milestone Completion Dates referred to in
Appendix 3. In the case the provision of Deliverables is delayed as a
direct result of an event of Force Majeure or an event for which
Concert is directly or indirectly responsible, the Milestone Completion
Date shall be changed, if necessary, by mutual agreement between the
parties to reflect the amount of time during the event in which work
could not be continued on the Deliverable due directly to the event. In
the event a Deliverable does not pass the Acceptance Test Plan, (as
defined in Appendix 6) on or before the applicable Milestone Completion
Date, ACT shall pay a compensation to Concert in the amount of US$1,000
per Deliverable that is delayed for each day of the delay. The total
amount payable by ACT pursuant to this Section shall not exceed ten
percent (10%) of the total amount paid or payable to ACT by Concert
pursuant to this Agreement. In the event the delay is such that ACT
reaches this 10% cap, Concert may, at its sole discretion, terminate
this Agreement within thirty (30) days after the affected Milestone
Completion Date without liability or penalty.
13. TERMINATION
13.1 If either Party commits a breach or persistent breaches of this Agreement,
and in the case of a breach which is capable of remedy, fails to remedy the
breach within 7 days (or such longer period as agreed in writing by the
other Party) of written notice then the other Party shall have the right:
(a) at any time to terminate the whole or part of the Agreement forthwith;
and
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(b) to recover from the breaching party all directly resulting losses and
expenses. Where a Party terminates due to breach/persistent breach by
the other Party, the breaching Party shall pay resulting losses and
expenses to the nonbreaching Party to a maximum amount as set forth in
Section 13.8 below.
13.2 Both Parties shall have the right at any time to terminate the Agreement
forthwith and to recover from the other Party all directly resulting losses
and expenses if the other Party shall become insolvent or cease to trade or
compound with its creditors; or a bankruptcy petition or order is presented
or made against the other Party; or a receiver or an administrator receiver
is appointed in respect of any of the other Party's assets; or a petition
for an administration order is presented or such an order is made in
relation to the other Party; or a resolution or petition or order to wind
up the other Party is passed or presented or made or a liquidator is
appointed in respect of the other Party (other than a members' voluntary
liquidation solely for the purpose of reconstruction or amalgamation or the
equivalent of such liquidation in the jurisdiction of the other part).
13.3 Concert may at any time on written notice terminate the Agreement forthwith
without penalty or further liability to Concert if the ownership or control
of ACT is materially changed to (in Concert's reasonable opinion) Concert's
detriment. Concert shall pay ACT all resulting losses and expenses to a
maximum amount, as set forth in Section 13.8 below.
13.4 Concert may at any time on written notice terminate the Agreement forthwith
for its convenience. Where Concert terminates the Agreement under this
Clause 13.4 and does not have any other right to terminate the Agreement,
the following shall apply:
(a) Concert shall subject to subparagraph (b) below, pay ACT such amounts
as may be necessary to cover its reasonable costs and outstanding and
unavoidable commitments (and reasonable profit thereon) necessarily
and solely incurred in properly performing the Agreement in relation
to Accepted Deliverables prior to termination.
(b) Concert shall only pay costs and commitments in respect of
Deliverables that Concert has accepted to its satisfaction.
(c) The costs payable by Concert pursuant to (a) and (b) above shall be
limited to the amounts set forth in Section 13.8 below.
13.5 In the event that Concert terminates all or part of the Services and pays
ACT pursuant to this Section 13, Concert shall have the right to require
ACT to transfer ownership in the relevant equipment (hardware, software,
network) which ACT shall cause to occur as soon as reasonably practicable.
13.6 In case of termination of this Agreement, ACT agrees to co-operate with
Concert for the smooth migration of the Deliverables to Concert, including
access to all system configuration, design and implementation status and
the transfer of the software (source code and binary) and any Intellectual
Property Rights developed by ACT for the purpose of creating the
Deliverables.
13.7 Should a Force Majeure Event cause ACT to delay in providing the
Deliverables or any of them for a period of more than 28 consecutive days,
Concert shall have the option to terminate the Deliverables or part thereof
by written notice to ACT and pay ACT resulting losses and expenses to a
maximum amount, as defined in Section 13.8 below.
13.8 In no event shall Concert's total liability with respect to ACT's costs
upon termination under this Article 13, as set forth above, exceed the
lesser of (i) ACT's proposal quote of USD$223,800 less amounts already
paid; or (ii) a percentage of ACT's proposal quote, as set forth below,
less
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amounts already paid. The percentages below apply based on the month in
which termination occurs:
Percentage of
Project Month proposal quote
------------- --------------
June 1998-July 1998 60%
August 1998-September 1999 40%
October 1998-February 1999 10%
March 1999 or later 0%
13.9 Concert may terminate this Agreement pursuant to Section 12.2.
13.10 The above clauses encompass the total liability of Concert for
termination pursuant to this Article 13, and Concert shall be liable for no
other costs, claims, damages, or expenses consequent upon such termination. In
any event, both Parties shall use all reasonable efforts to mitigate their costs
associated with any such termination.
14. CONFIDENTIALITY
14.1 Subject to Clause 14.3 of this Agreement, each Party shall keep safe all
of the other Party's Information and shall not without the prior written
consent of the giving Party:
(a) use any of other Party's Information for any purpose other than
is necessary for the performance of its obligations under this
Agreement or,
(b) disclose any Information to any person other than a person
directly employed or engaged by either Party in the performance
of the Agreement. Disclosure to all persons shall be made in
confidence and only to the extent necessary for the performance
of the Parties' obligations under this Agreement.
14.2 Subject to Clause 14.3 of this Agreement, the Parties shall keep
confidential all Information supplied to each other and indicated as
being confidential and shall not disclose the same to any third party
without the prior written consent of the other, provided always that
each party may disclose or use, without consent, such Information to the
extent necessary for the exercise of the Parties' rights under this
Agreement, including any licences granted.
14.3 Neither Party to this Agreement shall be bound by the above provisions
of this Condition in relation to Information that is:
(a) published or comes into the public domain otherwise than by a
breach of this Agreement; or,
(b) lawfully known to it before the publication of the SOR and is not
subject to a previous obligation of confidentiality binding that
Party; or,
(c) lawfully obtained by it from a third party which is free to
divulge that Information; or,
(d) replicated by development independently carried out by an
employee or other person without access to, or knowledge of, such
Information.
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14.4 ACT shall ensure that each subcontractor engaged in relation to the
Contract is bound by similar confidentiality terms to those set out in
this Condition.
14.5 All Information and any copies thereof and all Intellectual Property
Rights therein belonging to either Party shall remain as their property,
such information shall be clearly marked as such prior to passing to the
other Party. Each Party shall return the other's Information to them
upon completion or termination of the Agreement, or earlier upon
reasonable request by the other Party.
14.6 ACT shall not design a conferencing system or solution based upon a
substantial copying of the design and other work performed pursuant to
this Agreement for another customer without Concert prior approval for a
period of the life of this Agreement. This restriction shall not prevent
ACT from designing a conferencing system or solution based on general
know-how gained from exposure to or development of the Application
Design and Consulting or any other aspect of the Project.
14.7 The provisions of this Condition shall survive the termination or
expiration of this Agreement.
15. CONFLICT OF INTEREST
ACT represents and warrants to the best of ACT's knowledge and belief
that it is not now under contract or obligation, nor will ACT enter into
a contract or assume an obligation during the term of this Agreement
that would materially and detrimentally affect ACT's performance of this
Agreement.
16. WARRANTIES
16.1 ACT warrants that the performance of the Project and the work prepared
for Concert shall be of the highest professional quality in the
telecommunications industry, in accordance with the SOR and the Supplier
Support Requirements (Appendix 4), and shall not be improperly derived
from any copyrighted or patented material or trade secret or otherwise
be subject to or infringe upon any interest, proprietary or otherwise,
of any individual or entity.
16.2 ACT warrants that its work will not cause the equipment, software,
communications facilities, ACT or Concert to violate any law. ACT will
comply with all applicable laws including, but not limited to, building
and electrical regulations, employee and sales tax, the Communications
Act of 1934, as amended, and equal employment laws. ACT shall assume all
liabilities and obligations imposed by such laws, regulations and
requirements with respect to ACT's performance hereunder.
16.3 ACT warrants that the Deliverables, including hardware and network
support, shall be capable of processing dates up to December 31, 1999
and from January 1, 2000 forward without failure.
17. REMEDIES AND LIABILITIES
17.1 EXCEPT AS STATED IN SECTION 18, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY, ANY SUBCONTRACTOR, OR OTHER THIRD PARTY, WHETHER BASED ON
CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), WARRANTY OR
ANY OTHER CAUSE OF ACTINO FOR ANY LOSS OF INTEREST, DATA OR INFORMATION,
LOSS OF USE, LOST PROFITS OR LOST OPPORTUNITY OR LOST REVENUE BY THE
OTHER PARTY OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES, ARISING FROM OR RELATED TO THIS
AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF.
17.2 EXCEPT AS STATED IN THIS AGREEMENT, IN NO EVENT, WHETHER AS A RESULT OF
BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, SHALL EITHER PARTY HAVE ANY LIABILITY UNDER THIS AGREEMENT.
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18. EXCLUSIONS FROM LIMITATIONS
No disclaimer of warranty or limitation of liability shall apply where
the claim or cause of action involves: injury to person or tangible
personal property; gross negligence or wilful misconduct of a Party or
any of their subcontractors, officers, directors, or other agents;
obligations related to indemnification; or breach of confidentiality
obligations.
19. INTELLECTUAL PROPERTY - INDEMNITY
19.1 ACT shall indemnify and shall keep fully indemnified Concert against all
actions, claims, proceedings, damages, costs and expenses arising from
any infringement or alleged infringement of any Intellectual Property
Right or any trade xxxx or service xxxx, whether registered or not, or
any breach or alleged breach of any obligation of non-disclosure by the
possession, use , manufacture, sale, lease, hire, distribution or
disposal in respect of the Deliverables or other work provided by ACT
hereunder or the packaging thereof by any person anywhere in the world.
19.2 Concert and ACT shall notify each other immediately in writing of any
infringement or alleged infringement referred to above of which they
become aware.
19.3 In the event of any such infringement or alleged infringement, ACT shall
at its own expense and at the option of Concert:
a) secure a royalty free licence allowing Concert unrestricted use of
the infringing Deliverable or work and the ability to exercise its
other rights granted under the Agreement in respect of the
Deliverable or work; or
b) modify or replace the Deliverable or work, at the option of
Concert, so as to meet the existing functional specification and
avoid the claim of infringement and any injunction or court order.
19.4 Unless otherwise agreed in writing, ACT shall conduct all negotiations
and litigation in relation to any such infringement or alleged
infringement and be responsible for all costs and expenses incurred.
Concert shall afford all reasonable assistance in contesting such
allegations but if ACT fails to conduct such negotiations or litigation,
or in the opinion of Concert fails to do so in a manner which is in the
best interests of Concert or fails to do so within a reasonable time,
Concert may assume conduct of the same at ACT's expense.
19.5 The provisions of this Condition shall survive the expiry or termination
of this Agreement.
20. INDEMNITY - GENERAL
20.1 Except as specifically provided for elsewhere in this Agreement and
without prejudice to any other rights or remedies available to a Party,
each Party shall indemnify and hold harmless the other Party against any
and all claims for loss or damage arising out of or related to the
performance or non-performance by the indemnifying Party, its employees,
agents, contractors, or other representatives, of the indemnifying
Party's obligations hereunder.
20.2 ACT warrants that it has obtained all necessary licences, authorities'
consents and permits for the provision of the Deliverables and other
work for this Project and for the unrestricted export of any supplied
Deliverables to Concert, and re-export to such countries as Concert
shall have notified the Contractor at any time before delivery to
Concert. ACT shall identify and comply with the provisions of all
applicable national and international laws, ordinances, regulations and
codes covering the provision of required permits, certificates,
approvals and inspections. ACT shall indemnify Concert against all
costs,
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proceedings, losses, damages, claims, or demands resulting directly or
indirectly from any breach of the above warranty.
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21. FORCE MAJEURE
21.1 Neither Party shall be liable to the other Party for any period of delay
in the performance of the Agreement directly caused by any event beyond
its reasonable control, including acts of nature, war, civil disorder,
prohibitions or orders issued by public authorities; restrictions
imposed by legislation; strikes, or lockouts, fire, lightning, inclement
weather, explosions, epidemics, or other events outside of a Party's
control ("Force Majeure ") provided such party shall have first given
the other party written notice as soon as practicable after becoming
aware that such delay was likely to occur.
21.2 If due to Force Majeure ACT is the delaying party and the Force Majeure
period exceeds 28 days:
21.2.1 Concert shall have the option by written notice to ACT to terminate the
Agreement forthwith in whole or in part and be under no further
liability to ACT other than in accordance with clause 13.7.
21.2.2 ACT shall have the option by written notice to Concert to request
renegotiation of this Agreement. Upon receipt of such request, Concert
shall have the option to renegotiate the milestones for the Deliverables
or terminate this Agreement.
21.3 For the avoidance of doubt, the provisions of this Condition shall not
affect Concert's right to terminate the Contract under Article 13
("Termination").
22. [Section 22 is intentionally omitted.]
23. GOVERNING LAW AND JURISDICTION
The laws of New York shall govern the Agreement.
24. ARBITRATION
Unless the Parties agree upon another arbitration forum, any claim,
dispute, controversy or other matter in question arising out of or
relating to this Agreement or the breach thereof, shall be settled by
final, binding arbitration to be held in New York, New York, in
accordance with the then effective Commercial Arbitration Rules of the
American Arbitration Association, or their successor. Judgement upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The decision of the arbitrator shall be final and
binding on the Parties. Each Party shall bear its own costs in respect
of any arbitration proceeding.
25. GENERAL PROVISIONS
25.1 Conflicts. In the event the Response, in reference to the SOR, has
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explicitly proposed a substitute requirement, a different means or
method to meet the SOR requirement, or has otherwise taken an exception
to meeting a requirement, the terms of the Response prevail to the
extent of that substitution, different means or method, or exception.
In the event of a conflict between this Agreement and the Response, the
terms of this Agreement shall prevail.
25.2 Insurance. ACT shall maintain, at all times during the term of this
---------
Agreement, insurance coverage suitable for the Deliverables and other
work being provided hereunder and in compliance with the requirements
of the jurisdiction(s) where the work is performed, including, but not
limited, to End-Customer or Authorised Distributor sites, if
applicable.
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25.2 Security. ACT shall comply with all Concert's security procedures for
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the Deliverables, all Intellectual Property, Information and other work
produced under this Agreement. In addition, where ACT attends a site
other than its own, ACT shall comply with all reasonable security
procedures as advised by Concert or the site owner, as appropriate.
25.3 Assignment. Neither ACT nor Concert shall, without the prior written
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consent of the other (such consent not to be unreasonably withheld)
assign the whole or any part of the Agreement, provided however, that
Concert may, upon notice to Contractor, assign all or part of this
Agreement to any affiliated subsidiary, or parent company, or to its
successor, whether by merger, reorganization, or sale of all, or
substantially of the assets to which this Agreement relates.
25.4 Subcontracting. ACT shall not, without the prior written consent of
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Concert (such consent not to be unreasonably withheld) sub-contract the
development of the Deliverables. Such permission, shall not relieve ACT
of any obligation or liability under the Agreement.
25.5 Publicity. Neither Party shall name the other in any publicity relating
---------
to the Contract without the other's prior written approval. The
provisions of this Section 25.5 shall survive the expiry or termination
of the Agreement for a period of six months.
25.6 Notices. Any and all notices required to be given by one party to the
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other under this Contract shall be delivered by hand, post, telex, or
facsimile transmission to the following addresses, or such other address
as the parties may notify in writing from time to time:
If to ACT: Xxxx Xxxxxx
0000 Xxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
with copy to: Xxxxx Xxxxxxxx
0000 Xxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
If to Concert: Xxxx Xxxxxxxx
Concert
00000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax No.: 000-000-0000
with copy to: Concert
Office of General Counsel
00000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax No: 000-000-0000
25.7 Waiver. No delay, neglect or forbearance on the part of Concert in
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enforcing against ACT any provision of the Agreement shall be deemed to
be a waiver or in any way prejudice any rights of Concert under the
Contract. No waiver by Concert shall be effective unless in writing nor
shall any waiver by Concert of a breach of the Agreement by ACT
constitute a waiver of any subsequent breach.
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25.8 Enforceability. The validity or enforceability for any reason of any
--------------
provision of this Agreement shall not prejudice or affect the validity
or enforceability of any other provision.
25.9 Headings. The headings in this Contract are for convenience only and
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shall not affect its interpretation.
26. ENTIRE AGREEMENT
This Agreement and its appendices:
Appendix 1 - Technical Requirements (SOR)
Appendix 2 - ACT Response (Response)
Appendix 3 - Work Order, Deliverables, Milestones
Appendix 4 - Supplier Support Requirements
Appendix 5 - Payment and Invoicing
constitute the entire agreement between Concert and ACT in respect of
the subject matter hereof and supercedes all prior negotiations,
representations, or agreements in relation to such subject matter. This
Agreement may not be modified or amended except in writing, executed by
the duly authorized representatives, from time to time, of the Parties.
WITNESS the signatures of the duly authorised representatives of the Parties.
ACT TELECONFERENCING SERVICES, INC. CONCERT GLOBAL NETWORKS LIMITED
___________________________________ _____________________________________
Signature Signature
___________________________________ _____________________________________
Printed Name & Title Printed Name & Title
___________________________________ _____________________________________
Date Date
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