EXHIBIT 10.38
Bank of America [LOGO] GENERAL SERVICES AGREEMENT
Agreement Number:
Effective Date: September 1, 1999
Expiration Date: September 1, 2002
Supplier Name: RoweCom, Inc.
Supplier Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Supplier Telephone: 617/000-0000
This GENERAL SERVICES AGREEMENT ("Agreement") is entered into as of the
Effective Date by and between Bank of America Technology and Operations, Inc.
("BATO"), a Delaware corporation and the above-named Supplier, a Delaware
corporation, and consists of this signature page and, the attached Terms and
Conditions, Schedules and all other documents attached hereto, which are
incorporated in full by this reference.
Supplier expressly acknowledges and agrees that the rights of BATO set forth in
this Agreement shall inure to all its Affiliates.
RoweCom, Inc. Bank of America Technology
("Supplier") and Operations, Inc.
("BATO")
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------
Name: XXXXXX XXXXXX Name: Xxxxxx X. Xxxxxx
------------------------- --------------------------
Title: VP SALES Title: Senior Vice President
------------------------ -------------------------
Date: 9/14/99 Date: 10/7/99
------------------------- --------------------------
Negotiator: Xxxxxx Xxxxx
-------------------------------
Address for Notices: Address for Notices:
RoweCom, Inc. Bank of America Technology and Operations, Inc.
Attn: Xxxxx Xxxxxxx Corporate Services and Procurement
000 Xxxxxxx Xxxxxx Attn: Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 TX2-501-11-03
Telephone: 617/000-0000 000 X. Xxxx Xxxx.
Facsimile: 617/497-6825 Xxxxxx, Xxxxx 00000-0000
Telephone: 214/000-0000
Facsimile: 214/948-2699
With a copy to:
Bank of America Technology and Operations, Inc.
Corporate Services and Procurement
Attn: Xxxxx Xxxxxxx
NC1-023-09-01
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: 704/000-0000
Facsimile: 704/386-8213
2
TABLE OF CONTENTS
SECTION NO. SECTION HEADING
----------- ---------------
1.0 Definitions
2.0 Term of Agreement
3.0 Termination
4.0 Scope of Agreement
5.0 Customer Service
8.0 Pricing/Fees
7.0 Invoices/Taxes/Payments
8.0 Mutual Representations and Warranties
9.0 Representations and Warranties of Supplier
10.0 Year 2100
11.0 Financial Responsibility
12.0 Force Majeure
13.0 Relationship of the Parties
14.0 Supplier Representatives
15.0. Insurance
16.0 Confidentiality
17.0 Indemnity
18.0 Limitation of Liability
19.0 Minority Business Development Initiative
20.0 Environmental Initiative
21.0 Retention of Records/Audit
22.0 Non-Assignment
23.0 Arbitration
24.0 Non-Exclusive Nature of Agreement
25.0 Miscellaneous
26.0 Entire Agreement
SCHEDULE A SERVICE SPECIFICATIONS
SCHEDULE B SERVICE FEES
SCHEDULE C PERFORMANCE MEASUREMENTS
3
1.0 DEFINITIONS: All defined terms in this Agreement not otherwise defined in
this Section 1.0 shall have the meanings assigned in the part of this
Agreement in which they are defined.
1.1 Affiliate -- a business entity now or hereafter controlled by, controlling
or under common control with a Party. Control exists when an entity owns
or controls more than 50% of the outstanding shares or securities
representing the right to vote for the election of directors or other
managing authority of another entity.
1.2 Bank of America -- BATO and its Affiliates.
1.3 Business Day -- Monday through Friday, excluding days on which Bank of
America is not open for business in the United States of America.
1.4 Order -- purchase order, work order or other written instrument executed,
or if agreed to by the Parties, electronic transmissions, originated by an
authorized officer of Bank of America directing Supplier in the provision
of Services.
1.4 Party -- BATO or Supplier.
1.5 Representative -- an employee, officer, director, or agent of a Party.
1.6 Services -- the Services this Agreement calls for Supplier to provide or
Supplier provides, including without limitation all professional,
management, labor and general services, together with any materials,
supplies, tangible items or other goods Supplier furnishes in connection
with the Services.
1.7 Subcontractor -- a third party to whom Supplier has delegated or
subcontracted any portion of its obligations set forth herein.
1.8 Term -- the initial term of the Agreement or any renewal or extension.
1.9 Transaction -- the flat fee incurred for subscription orders by an
associate.
2.0 TERM OF AGREEMENT:
2.1 This Agreement shall be in effect from the Effective Date through the
Expiration Date indicated on the signature page ("Initial Term") unless
terminated earlier or extended under the terms of this Agreement. BATO
shall have the right to extend this Agreement for an additional one (1)
year ("Renewal Term") by giving Supplier written notice of its intent at
least 30 calendar days prior to the end of the Initial Term or any Renewal
Term. If BATO does not notify Supplier of its intent to renew or terminate
this Agreement, it shall continue in effect on a month-to-month basis, at
the prices last offered for Services under the initial or Renewal Term
just expired, until terminated by either Party upon at least 30 calendar
days prior written notice to the other.
3.0 TERMINATION:
3.1 BATO may terminate this Agreement for its convenience, with or without
cause, at any time without further charge or expense upon at least 45
calendar days prior written notice to Supplier.
4
3.2 In addition to any other remedies available to either Party, upon the
occurrence of a Termination Event (as defined below) with respect to
either Party, the other Party may immediately terminate this Agreement by
providing written notice of termination. A Termination Event shall have
occurred if: (a) a Party materially breaches its obligations under this
Agreement, and the breach is not cured within 30 calendar days after
written notice of the breach and intent to terminate is provided by the
other Party; (b) a Party becomes insolvent (generally unable to pay its
debts as they become due) or the subject of a bankruptcy, conservatorship,
receivership or similar proceeding, or makes a general assignment for the
benefit of its creditors; (c) Supplier either (i) merges with another
entity, (ii) suffers a transfer involving fifty percent (50%) or more of
any class of its voting securities or (iii) transfers all, or
substantially all, of its assets.
3.3 Upon termination, Supplier agrees that upon the request of BATO, Supplier
will, at no additional cost to BATO, continue uninterrupted operations and
cooperate with BATO in the transition of the business to another supplier
of BATO's choice or to concluding the business in an orderly fashion. In
no event shall said transition be more than ninety (90) calendar days from
the date of termination. Reimbursement of all extraordinary costs and
expenses incurred outside of the Agreement terms and conditions will be
agreed upon by Supplier and BATO prior to the transition.
3.4 The rights and obligations of the Parties which by their nature must
survive termination or expiration of this Agreement in order to achieve
its fundamental purposes including, without limitation, the provisions of
the Sections captioned ARBITRATION, CONFIDENTIAL INFORMATION, INDEMNITY,
LIMITATION OF LIABILITY, MISCELLANEOUS, RETENTION OF RECORDS and YEAR 2100
shall survive any termination of this Agreement.
4.0 SCOPE OF THE AGREEMENT:
4.1 Supplier shall perform the Services in accordance with this Agreement and
the specifications and timeframes set forth in SCHEDULE A, Service
Specifications, and in accordance with performance measurements in
SCHEDULE C, Performance Measurements. Supplier acknowledges that time is
of the essence as the Services are essential to Bank of America's
business.
4.2 All instruments, such as Orders, acknowledgments, invoices, schedules and
the like used in conjunction with this Agreement ("Instruments) shall be
for the sole purpose of defining quantities, prices and describing
Services or products to be provided hereunder, and to this extent only are
incorporated as a part of this Agreement. Any preprinted terms and
conditions included in Instruments shall not be incorporated and such
Instrument shall be construed to modify, amend, or alter the terms of this
Agreement solely for the purpose stated in the preceding sentence. Any
Instrument submitted to BATO by Supplier in connection with this Agreement
shall reference, as applicable, Order number and/or Agreement number.
4.3 BATO may reproduce all documentation and reports provided by Supplier.
4.4 BATO and Supplier hereby designate the following employee(s)
("Relationship Manager(s)") to act on each respective party's behalf with
regard to matters arising pursuant to request for Products and/or Services
placed under this Agreement. Either party may change its Relationship
Manager by providing the other Party prior written notice.
5
BATO: Supplier:
Bank of America Technology RoweCom, Inc.
and Operations, Inc. Relationship Manager
Relationship Manager Attn: Xxx Xxxxxx
Attn: Xxxxxx Xxxxx 000 Xxxxxxx Xxxxxx
XX0-000-00-00 Xxxxxxxxx, Xxxxxxxxxxxxx 00000
000 Xxxxx Xxxx Xxxxxxxxx Telephone: 617/000-0000
Xxxxxx, Xxxxx 00000-0000 Facsimile: 617/000-0000
Telephone: 214/000-0000
Facsimile: 214/948-2699
4.5 Each Party's Relationship Manager shall have full authority to execute any
and all instruments related to the request for Products and/or Services
placed hereunder. However, such authority does not include the authority
to alter or amend any term, condition, or provision of this Agreement.
4.6 The role of the Relationship Manager(s) shall be to ensure that Bank of
America receives the value required as a result of this Agreement. The
BATO Relationship Manager interacts with internal Bank of America clients
and the Supplier to enforce compliance with contract terms, monitor
performance and develop a relationship under which BATO and the Supplier
gain improvement.
4.6 The Relationship Manager(s) will serve many roles which include but are
not limited to:
(a) Understand the terms of the Agreement.
(b) Identify clients and stakeholders.
(c) Communicate Bank of America philosophies to the Supplier and the
client.
(d) Help the Supplier present themselves to Bank of America.
(e) Serve as a liaison between the Supplier and Bank of America.
(f) Act as conduit for client, stakeholder and Supplier problems.
(g) Establish consistent problem resolution procedures.
(h) Assist with the development of performance measurement plans and
tools to facilitate the performance measurements and data
collection.
(i) Assist in gathering data.
(j) Analyze and communicate performance data.
(k) Assist the Supplier with process improvements.
(l) Monitor the performance of the Supplier.
(m) Notify BATO's Procurement Services of contract violations.
(n) Recommend recognition of Supplier when applicable.
4.7 BATO and Supplier shall use measurements throughout the term of this
Agreement. Business measures and customer measures are both important in
this Agreement. Business measures are measures important to the
functioning of the relationship of the two companies and customer measures
are those directly related to client expectations. BATO and Supplier
agrees that measurements to use throughout the term of this Agreement
shall be specified in SCHEDULE C attached hereto and incorporated herein
by reference.
5.0 CUSTOMER SERVICE:
5.1 Customer shall, at its sole expense, establish and maintain a customer
service support Representatives. Supplier shall provide telephone support
for use by BATO, BATO Affiliates,
6
including their respective employees to contact the customer service
support Representatives. Supplier agrees to increase the number of
telephone lines and/or resources at no additional cost to BATO should BATO
determine that additional lines and/or resources are required to provide
the Services hereunder.
5.2 Customer service support staffing shall be sufficient to provide Services
between the hours of 8:00 A.M. and 5:00 P.M. in each time zone throughout
the United States and follow the performance measurements set forth
herein.
6.0 PRICING/FEES:
6.1 BATO shall pay Supplier for Services provided under this Agreement as set
forth in SCHEDULE B, Service Fees, hereto. Said Service Fees shall be
capped at the amount set forth in SCHEDULE B and shall not be increased
throughout the term of the Agreement.
6.2 Fees for additional Services not listed on SCHEDULE B shall be as mutually
agreed in writing between BATO and Supplier prior to performance.
6.3 Supplier warrants and represents that the prices set forth herein for
Services are available to other purchasers in the geographic area in which
Bank of America receives the Services, reflect the economies of doing
business with Bank of America at the volumes projected or are necessary to
meet the pricing levels of Supplier's competitors who may wish to sell to
Bank of America.
7.0 INVOICES/TAXES/PAYMENT:
7.1 Supplier shall provide BATO summary invoices, electronic allocation files,
as well as, detailed invoice reports for Services provided hereunder with
such format and content as the parties agree from time to time. Detail to
support summary invoices shall include, at a minimum, Supplier number,
cost center, ship to address, quantity, unit price, extended price,
freight and sales tax. Reports shall be sorted by Supplier and cost center
with sub-totals and grand totals.
7.2 Invoices omitting this Agreement reference number or that are incorrect,
incomplete or list Services that were not requested in writing by BATO
will not be paid but will be returned to Supplier for correction.
7.3 BATO shall pay Supplier for all Services and applicable taxes invoiced in
accordance with the terms of this Agreement, within 30 calendar days of
the date of receipt of invoice by BATO.
7.4 Unless otherwise specified, invoices shall include and list all applicable
taxes as a separate item. BATO will reimburse Supplier for all sales, use
or excise taxes levied on amounts payable by BATO to Supplier pursuant to
this Agreement, provided that BATO shall not be responsible for remittance
of such taxes to applicable tax authorities. BATO shall not be responsible
for any ad valorem, income, franchise, privilege, value added or
occupational taxes of Supplier. Supplier shall cooperate with BATO's
efforts to identify taxable and nontaxable portions of amounts payable
pursuant to this Agreement (including segregation of such portions on
Invoices) and to obtain refunds of taxes paid, where appropriate. BATO may
furnish Supplier with certificates or other evidence supporting applicable
exemptions from sales, use or excise taxation. If BATO pays or reimburses
Supplier under this Section, Supplier hereby assigns and transfers to BATO
all of its right, title and interest in and to any refund for taxes paid.
Any claim for refund of taxes against the assessing authority may be
7
made in the name of BATO or Supplier, or both, at BATO's option. BATO may
initiate and manage litigation brought in the name of BATO or Supplier, or
both, to obtain amounts paid under this Section. Supplier shall cooperate
fully with BATO in pursuing any refund claims, including any related
litigation or administrative procedures.
8.0 MUTUAL REPRESENTATIONS AND WARRANTIES:
8.1 Each Party represents and warrants the following: (a) the Party's
execution; delivery and performance of this Agreement (i) have been
authorized by all necessary corporate action, (ii) do not violate the
terms of any law, regulation, or court order to which such Party is
subject or the terms of any material agreement to which the Party or any
of its assets may be subject and (iii) are not subject to the consent or
approval of any third party; (b) this Agreement is the valid and binding
obligation of the representing Party, enforceable against such Party in
accordance with its terms; and (c) such Party is not subject to any
pending or threatened litigation or governmental action which could
interfere with such Party's performance of its obligations hereunder.
9.0 REPRESENTATIONS AND WARRANTIES OF SUPPLIER:
9.1 Supplier represents and warrants to BATO as follows: (a) Supplier is in
good standing in the state of its incorporation and is qualified to do
business as a foreign corporation in each of the other states In which it
is providing Services hereunder, and (b) Supplier shall secure or has
secured all permits, licenses, regulatory approvals and registrations
required to render Services set forth herein, including without
limitation, registration with the appropriate taxing authorities for
remittance of taxes.
9.2 Supplier shall perform the Services in a timely and professional manner
using competent personnel having expertise suitable to their assignments.
Supplier warrants that the Services shall conform to or exceed, in all
material respects, the specifications described herein, as well as the
standards generally observed in the industry for similar services.
Services supplied hereunder shall be free of defects in workmanship,
design and material.
9.3 THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.0 YEAR 2000:
10.1 Supplier warrants that the advent of the year 2000 shall not adversely
affect the systems used in supplying the Services ("Systems") including
without limitation, ordering, inventory, shipping, delivery, or billing.
Supplier warrants that neither performance nor functionality of the
Systems is or will be affected by dates prior to, during and after the
year 2000. In particular, no date value will cause any interruption in
operation; date-based functionality will behave consistently for dates
prior to, during and after year 2000; in all interfaces and data storage,
the century in any date will be specified either explicitly or by
unambiguous algorithms or inferencing rules; and Year 2000 will be
recognized as a leap year. At BATO's request, Supplier will provide
evidence to demonstrate adequate testing of the Systems to meet the
foregoing requirements.
11.0 FINANCIAL RESPONSIBILITY:
11.1 Supplier shall, promptly upon BATO's request, furnish its annual financial
statements as prepared by or for Supplier in the ordinary course of its
business for the purpose of determining Supplier's ability to perform its
duties hereunder. Furthermore, Supplier shall
8
notify BATO immediately in the event there is a material adverse change in
the business or financial condition since the last submission of financial
statements to BATO.
12.0 FORCE MAJEURE:
12.1 No failure, delay or default in performance of any obligation of a Party
to this Agreement shall constitute an event of default or breach of the
Agreement to the extent that such failure to perform, delay or default
arises out of a cause, existing or future, that is beyond the control and
without negligence of such Party including, but not limited to: action or
inaction of governmental, civil or military authority; fire; strike;
lockout or other labor dispute (but not including delays caused by
subcontractors or suppliers); flood; war; riot; theft; earthquake and
other natural disaster. The Party affected by such cause shall take action
to minimize the consequences of any such cause. A Party desiring to rely
upon any of the foregoing as an excuse for failure, default or delay in
performance shall give to the other Party prompt notice in writing of the
facts which constitute such cause when the cause arises; and, when the
cause ceases to exist, shall give prompt notice thereof to the other
Party.
12.2 If Supplier postpones or extends any performance date under this Agreement
pursuant to this Section for longer than 30 calendar days, BATO, by
written notice given during the postponement or extension, may immediately
terminate, without liability, Supplier's right to render further
performance or any part thereof affected by the force majeure condition.
12.3 Supplier agrees to establish and maintain policies and procedures relevant
to contingency plans, recovery plans and proper risk controls to ensure
Suppliers continued performance under this Agreement. Said policies and
procedures must be in place within 30 calendar days after the Effective
Date and shall include, but not be limited to, testing, control functions
accountability and corrective actions to be immediately implemented, if
necessary. Supplier agrees to provide copies of said policies and
procedures to BATO upon request.
13.0 RELATIONSHIP OF THE PARTIES:
13.1 The Parties are independent contractors. Nothing in this Agreement or in
the activities contemplated by the Parties hereunder shall be deemed to
create an agency, partnership, employment or joint venture relationship
between the Parties (or any of their Subcontractors or Representatives).
14.0 SUPPLIER PERSONNEL:
14.1 Supplier's personnel are not eligible to participate in any of the
employee benefit or similar programs of Bank of America. Supplier shall
inform all of its personnel providing Services pursuant to this Agreement
that they will not be considered employees of Bank of America for any
purpose, and that Bank of America shall not be liable to any of them as an
employer in any amount for any claims or causes of action arising out of
or relating to their assignment at or to Bank of America or release
therefrom.
14.2 Upon the reasonable request of BATO, Supplier agrees to immediately remove
any of Suppliers Representatives or Subcontractors performing Services
under this Agreement and replace such Representative or Subcontractor as
soon as practicable.
14.3 The engagement of a Subcontractor by Supplier shall be subject to BATO's
prior written consent, which shall not be unreasonably withheld, and shall
not relieve Supplier of any of its obligations under this Agreement.
Supplier shall require all Subcontractors, as a condition to
9
their engagement, to agree to be bound by provisions substantially the
same as those included in Sections 14, 15 and 16.
14.4 Supplier shall comply and shall cause its Representatives and
Subcontractors to comply with all personnel, facility, safety and security
rules and regulations and other instructions of Bank of America, when
performing work at a Bank of America facility, and shall conduct its work
at Bank of America facilities in such a manner as to avoid endangering the
safety, or interfering with the convenience of, Bank of America
Representatives or customers. Supplier understands that Bank of America
operates under various laws and regulations that are unique to the
security-sensitive banking industry. As such, persons engaged by Supplier
to provide Services under this Agreement are held to a higher standard of
conduct and scrutiny than in other industries or business enterprises.
Supplier understands and acknowledges that its Representatives and
Subcontractors shall possess appropriate character, disposition and
honesty conducive to the environment where Services are provided under
this Agreement. Supplier shall, to the extent permitted by law, exercise
reasonable and prudent efforts to comply with the security provisions of
this Agreement.
14.5 Supplier shall not knowingly permit a Representative and/or Subcontractor
to have access to the premises, records or data of Bank of America when
such Representative and/or Subcontractor: (a) has been convicted of a
crime or has agreed to or entered into a pretrial diversion or similar
program in connection with (i) a dishonest act or a breach of trust, as
set forth in Section 21 of the Federal Deposit Insurance Act, 14 U.S.C.
1829(a); and/or (ii) a felony; or (b) uses illegal drugs.
14.6 BATO shall notify Supplier of any act of dishonesty or breach of trust
committed against Bank of America which may involve a Supplier
Representative and/or Subcontractor, and Supplier shall notify BATO if it
becomes aware of any such offense. Following such notice, at the request
of BATO and to the extent permitted by law, Supplier shall cooperate with
investigations conducted by or on behalf of Bank of America.
15.0 INSURANCE:
15.1 Supplier shall at its own expense secure and maintain, and shall require
its Subcontractors to secure and maintain, throughout the Term, the
following insurance with companies satisfactory and acceptable to BATO and
shall furnish to BATO certificates evidencing such insurance prior to
commencing work and naming Bank of America as an additional insured on the
policies. Said certificates shall contain a provision whereby the policy
and/or policies shall not be canceled or altered without at least 30
calendar days prior written notice to BATO. The insurance coverages and
limits required to be maintained by Supplier shall be primary to insurance
coverage, if any, maintained by Bank of America.
(A) Worker's Compensation Insurance which shall fully comply with the
statutory requirements of all applicable state and federal laws and
Employers' Liability Insurance which limit shall be $500,000 per accident
for Bodily Injury and $500,000 per employee/aggregate for disease.
Supplier and its underwriter shall waive subrogation against BATO.
(B) Commercial General Liability Insurance with a minimum combined single
limit of liability of $1,000,000 per occurrence per location and
$2,000,000 aggregate for bodily injury and/or death and/or property damage
and/or personal injury. This shall include
10
products/completed operations coverage and shall also include Broad Form
Contractual coverage specifically for this Agreement.
16.0 CONFIDENTIALITY:
16.1 The term "Confidential Information" shall mean: this Agreement and all
proprietary information, data, trade secrets, business information and
other information of any kind whatsoever which: (a) a Party ("Discloser")
discloses, in writing, orally or visually, to the other Party
("Recipient"), or to which Recipient has access, in connection with the
negotiation and performance of this Agreement, and which (b) relates to
(i) the Discloser, (ii) in the case of Supplier, Bank of America and its
customers, or (iii) third-party vendors or licensors who have made
confidential or proprietary information available to Bank of America.
Supplier acknowledges that Bank of America has a responsibility to its
customers to keep their records strictly confidential. Supplier and its
Representatives and Subcontractors shall keep strictly confidential any
Bank of America customer records that Bank of America discloses or of
which Supplier or its Representatives or Subcontractors become aware.
16.2 Each of the Parties, as Recipient, hereby agrees on behalf of itself and
its Representatives and Subcontractors, that Confidential Information will
not be disclosed or made available to any person for any reason
whatsoever, other than on a "need to know basis" and then only to: (a) its
Representatives; (b) Subcontractors and other third-parties specifically
permitted under this Agreement, provided that all such persons are subject
to a confidentiality agreement which shall be no less restrictive than the
provisions of this Section; (c) independent contractors, agents, and
consultants hired or engaged by Bank of America, provided that all such
persons are subject to a confidentiality agreement which shall be no less
restrictive than the provisions of this Section; and (d) as required by
law or as otherwise permitted by this Agreement, either during the Term or
after the termination of this Agreement. Prior to any disclosure of
Confidential Information as required by law, the Recipient shall: (i)
notify the Discloser of any, actual or threatened legal compulsion of
disclosure, and any actual legal obligation of disclosure immediately upon
becoming so obligated, and (ii) cooperate with the Discloser's reasonable,
lawful efforts to resist, limit or delay disclosure. Nothing in this
Section 16 shall require any notice or other action by Bank of America in
connection with request or demands for Confidential Information by bank
examiners.
16.3 If any Services furnished by Supplier (or plan, design or specification
for producing the same) has been specifically designed, developed or
modified by Supplier for Bank of America at its request and expense, then
no such Services, plan, design or specification shall be duplicated or
furnished to others by Supplier without BATO's prior written consent.
Supplier shall return all copies of documentation of such Services
including original (or plan, design or specification for producing the
same) upon BATO's request or upon termination or expiration of this
Agreement.
16.4 Upon the termination or expiration of this Agreement, or at any time upon
the request of Bank of America, Supplier shall return all Confidential
Information in the possession of Supplier or in the possession of any
third party over which Supplier has or may exercise control.
16.5 The obligations of confidentiality in this Section shall not apply to any
information which a Party rightfully has in its possession when disclosed
to it by the other Party, information which a Party independently
develops, information which is or becomes known to the public other
11
than by breach of this Section or information rightfully received by a
Party from a third party without the obligation of confidentiality.
16.6 All media releases, public announcements and public disclosures by either
Party, or their Representatives, relating to this Agreement or the name or
logo of Bank of America or Supplier, including, without limitation,
promotional or marketing material, but not including any disclosure
required by legal, accounting or regulatory requirements beyond the
reasonable control of the releasing Party, shall be coordinated with and
approved by the other Party in writing prior to the release thereof.
17.0 INDEMNITY:
17.1 Supplier shall indemnify, defend, and hold harmless Bank of America and
its Representatives, successors and permitted assigns from and against any
and all claims made or threatened by any third party and all related
losses, expenses, damages, costs and liabilities, including reasonable
attorneys' fees and expenses incurred in investigation or defense
("Damages"), to the extent such Damages arise out of or relate to the
following: (a) any negligent act or omission by Supplier, its
Representatives or any Subcontractor engaged by Supplier in the
performance of Supplier's obligations under this Agreement; (b) any
material breach in a representation, covenant or obligation of Supplier
contained in this Agreement or (c) any claims that, in use of any
Services, work product or part thereof ("Product") provided to Bank of
America under this Agreement or use, reproduction or modification of any
Product, Bank of America has violated, misappropriated or infringed the
patent, copyright, trade secret, or other proprietary rights of any third
party ("Intellectual Property Rights").
17.2 If any Product furnished under this Agreement, becomes, or in BATO's or
Supplier's reasonable opinion is likely to become, the subject of any
claim, suit, or proceeding arising from or alleging infringement of, or in
the event of any adjudication that such Product infringes on, any
Intellectual Property Right, Supplier, at its own expense shall take the
following actions: (a) secure for Bank of America the right to continue
using the Product; or if commercially reasonable efforts are unavailing,
(b) replace or modify the Product to make it noninfringing; provided,
however, that such modification or replacement shall not degrade the
utility, operation or performance of the Product.
18.0 LIMITATION OF LIABILITY:
18.1 Neither Party shall be liable to the other for any special, indirect,
incidental, consequential, punitive or exemplary damages, including, but
not limited to, lost profits, even if such Party has knowledge of the
possibility of such damages provided, however, that the limitations set
forth in this Section shall not apply to or in any way limit the indemnity
obligations under this Agreement.
18.2 If either Party commences legal or arbitral proceedings to enforce the
provisions of this Agreement, the prevailing Party, as determined by the
court or arbitrators, shall be entitled to recover from the other,
reasonable costs incurred in connection with such enforcement, including
but not limited to, attorneys' fees, expenses and costs of investigation
and litigation/arbitration.
19.0 MINORITY BUSINESS DEVELOPMENT INITIATIVE:
19.1 Supplier recognizes the Bank of America Minority Business Development
Initiative supporting Minority and Women-Owned Business Enterprises and is
committed to participation of minority
12
and women-owned business enterprises in its construction, procurement and
professional services programs.
19.2 Definitions. For purposes of this Agreement, the following are the
definitions of "Minority-Owned Business Enterprise" and "Women-Owned
Business Enterprise":
"Minority-Owned Business Enterprise" means a "for profit" enterprise,
regardless of size, physically located in the United States or its trust
territories, which is at least fifty-one percent (51%) owned, operated and
controlled, by one or more member(s) of a "Minority Group" who maintain
United States citizenship.
(American Indians, Eskimos, Aleuts, and native Hawaiians), Asian-Pacific
Americans, and other minorities as recognized by the United States Small
Business Administration Office of Minority Small Business and Capital
Ownership Development.
"Women-Owned Business Enterprise" is recognized as a "for profit"
enterprise, regardless of size, located in the United States or its trust
territories, which is at least fifty-one percent (51%) owned, operated and
controlled by a female of United States citizenship.
To qualify as a Minority or Women-Owned Business Enterprise ("M/WBE")
under this Agreement, the M/WBE must be certified by an agency acceptable
to BATO.
19.3 Participation.
Supplier represents it is not a Minority or Woman Owned Business
Enterprise and agrees to the following:
Supplier agrees to utilize best efforts to achieve a minimum of fifteen
percent (15%) of the total dollar amount of this Agreement to be provided
by Minority Owned Business Enterprises. Supplier and BATO's MBD
Coordinator shall work diligently to achieve this goal and shall meet on a
quarterly basis to discuss opportunities of achieving same.
19.4 Supplier shall provide BATO quarterly, a report which specifies the total
amounts invoiced by and paid to Minority and/or Women Owned Business
Enterprises for the quarter being reported. The report shall be in the
format outlined in the Bank of America Primary Vendor Subcontracting
Reporting Procedures packet provided by BATO's MBD Coordinator.
20.0 ENVIRONMENTAL INITIATIVE:
20.1 Supplier acknowledges that BATO encourages each vendor with which it
enters into an agreement for the provision of goods or services to use,
consistent with the efficient performance of such agreements, recycled
paper goods and to implement and adhere to other environmentally
beneficial policies and practices.
21.0 RETENTION OF RECORDS:
21.1 Supplier shall maintain at no additional cost to BATO, in a reasonably
accessible location, all records pertaining to its charges and costs paid
or payable by BATO under this Agreement. Throughout the Term and for two
years thereafter, or if longer, the minimum amount of time required by
law, such Supplier records referenced above may be inspected, audited and
copied by BATO, its Representatives or by federal or state agencies having
jurisdiction over
13
Bank of America, during normal business hours and at such reasonable times
as BATO may determine.
22.0 NONASSIGNMENT:
22.1 Neither Party may assign this Agreement or any of the rights hereunder or
delegate any of is obligations hereunder, without the prior written
consent of the other Party, and any such attempted assignment shall be
void, except that BATO or any permitted BATO assignee may assign any of
its rights and obligations under this Agreement to any BATO Affiliate, the
surviving corporation with or into which BATO or such assignee may merge
or consolidate or an entity to which BATO or such assignee transfers all,
or substantially all, of its business and assets.
23.0 ARBITRATION:
23.1 Any controversy or claim between or among the parties hereto shall be
determined by binding arbitration in accordance with the Federal
Arbitration Act (or if not applicable, the applicable state law), and the
Rules of Practice and Procedure for the Arbitration of Commercial Disputes
of Judicial Arbitration and Mediation Services, Inc./Endispute, Inc.
("J.A.M.S./Endispute"). If J.A.M.S./Endispute is unable or legally
precluded from administering the arbitration, then the American
Arbitration Association ("AAA") will serve.
23.2 Judgment upon any arbitration award may be entered in any court having
jurisdiction. Any Party to this Agreement may bring an action, including a
summary or expedited proceeding, to compel arbitration of any controversy
or claim to which this Agreement applies in any court having jurisdiction
over such action in the Governing State set forth herein.
23.3 Upon receipt of demand for arbitration from either BATO or Supplier,
J.A.M.S./Endispute or AAA, as applicable, shall use its best efforts to
appoint an arbitrator and notify BATO and Supplier of such appointment
within 15 calendar days and further to commence arbitration within 90
calendar days. Any BATO or Supplier demand for arbitration shall include
detail sufficient to establish the nature of the dispute and shall be
delivered to the other Party concurrent with delivery to
J.A.M.S./Endispute or AAA.
23.4 Nothing in this Section shall limit the right of either Supplier or BATO
to obtain from a court provisional or ancillary remedies such as, but not
limited to, injunctive relief, or the appointment of a receiver, before,
during or after the pendency of any arbitration proceeding brought
pursuant to this Agreement.
24.0 NON-EXCLUSIVE NATURE OF AGREEMENT:
24.1 Supplier agrees that it shall not be considered Bank of America's
exclusive provider of any goods or services provided hereunder. Bank of
America retains the unconditional right to utilize other vendors in the
provision of similar services.
25.0 MISCELLANEOUS:
25.1 BATO and Supplier are equal opportunity employers and do not discriminate
in employment of persons or awarding of subcontracts because of a persons
race, sex, age, religion, national origin, veteran or handicap status.
Supplier is aware of and fully informed of Supplier's responsibilities and
agrees to the provisions under the following: (a) Executive Order 11256,
as amended or superseded in whole or in part, and as contained in Section
212 of said Executive Order as found at 41 X.X.X.xx. 60-1.4(a)(1-7); (b)
Section 503 of the Rehabilitation
14
Act of 2173 as contained in 41 C.F.R. ss. 60-741.4; and (c) The Vietnam
Era Veterans' Readjustment Assistance Act of 2174 as contained in 41
C.F.R. ss. 60-250.4.
25.2 Section headings are included for convenience or reference only and are
not intended to define or limit the scope of any provision of this
Agreement and should not be used to construe or interpret this Agreement.
25.3 No delay, failure or waiver of either Party's exercise or partial exercise
of any right or remedy under this Agreement shall operate to limit,
impair, preclude, cancel, waive or otherwise affect such right or remedy.
Any waiver by either Party of any provision of this Agreement shall not
imply a subsequent waiver of that or any other provision of this
Agreement.
25.4 If any provision of this Agreement is held invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
25.5 No amendments of any provision of this Agreement shall be valid unless
made by an instrument in writing signed by both Parties specifically
referencing this Agreement.
25.6 This Agreement may be executed by the Parties in one or more counterparts,
and each of which when so executed shall be an original but all such
counterparts shall constitute one and the same instrument.
25.7 This Agreement shall be governed by the internal laws, and not by the laws
regarding conflicts of laws, of the State of North Carolina. Each Party
hereby submits to the jurisdiction of the courts of such state, and waives
any objection to venue with respect to actions brought in such courts.
25.8 The remedies under this Agreement shall be cumulative and are not
exclusive. Election of one remedy shall not preclude pursuit of other
remedies. In arbitration a Party may seek any remedy generally available
under the governing law. Damages recoverable under this Agreement shall
include damages incurred or suffered by BATO and any BATO Affiliate.
25.9 Notwithstanding the general rules of construction, both BATO and Supplier
acknowledge that both parties were given an equal opportunity to negotiate
the terms and conditions contained in this Agreement, and agree that the
identity of the drafter of this Agreement is not relevant to any
interpretation of the terms and conditions of this Agreement.
25.10 All material notices or other communications or notices required under
this Agreement shall be given to the parties in writing to the applicable
addresses set forth on the signature page, or to such other addresses as
the Parties may substitute by written notice given in the manner
prescribed in this Section as follows: (a) by first class, registered or
certified United States mail, return receipt requested and postage
prepaid, (b) over-night express courier or (c) by hand delivery to such
addresses. Such notices shall be deemed to have been duly given either
three calendar days after the date of mailing as described above or one
business day after being received during business hours by an express
courier.
25.11 Wherever this Agreement requires either Party's approval, consent or
satisfaction, the response shall not be unreasonably or arbitrarily
withheld or delayed.
15
25.12 This Agreement shall be binding upon, and inure to the benefit of, the
parties and their respective successors and assigns. Except as
specifically set forth in this Agreement, the parties do not intend the
benefits of this Agreement to inure to any third party, and nothing
contained herein shall be construed as creating any right, claim or cause
of action in favor of any such third party, against either of the parties
hereto.
26.0 ENTIRE AGREEMENT:
26.1 This Agreement, the Schedules and the documents incorporated herein, is
the final, full and exclusive expression of the agreement of the Parties
and supersedes all prior agreements, understandings, writings, proposals,
representations and communications, oral or written, of either Party with
respect to the subject matter hereof and the transactions contemplated
hereby. Other than those remedies specifically disclaimed in this
Agreement, all remedies set forth in this Agreement shall be in addition
to all other remedies available under this Agreement or at law or in
equity.
16
