Exhibit 10.10
AGREEMENT FOR IT TRANSITION SERVICES
This Agreement for IT Transition Services is made between GTE Service
Corporation, a New York corporation, with offices at 0000 Xxxxxxxxx Xxxxx,
Xxxxxx, Xxxxx 00000 and its affiliates (individually and collectively "GTE") on
one hand, each only with respect to the Services (defined below) it provides,
and Genuity Inc., a Delaware corporation, with offices at 0 Xxx xx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("GENUITY"), and its subsidiaries and successors
in interest, on the other hand.
Whereas, GENUITY and GTE each will procure from the other under this Agreement
information technology services, with the services defined in individual
Statements of Work, and the ownership and rights in intellectual property
deliverables defined in the Statements of Work being apportioned between the
parties, with the term of the Agreement being one year, or as other wise set
forth in a specific Statement of Work, but terminable by the party receiving the
services upon one hundred and twenty (120) days prior notice.
In consideration of the mutual terms and conditions of this Agreement, the
parties agree as follows:
1. GENERAL.
(a) Services. Each of GTE and GENUITY (each a "Service Recipient", as the
case may be) desires to obtain certain information technology
transitional services on a non-exclusive basis from the other party
hereto or one of its affiliate companies (each a "Service Provider",
as the case may be) under the terms and conditions of this agreement
and statements of work ("Statements of Work") entered into by the
parties (this agreement and all attached Statements of Work are
collectively referred to as the "Agreement"), and Service Provider
shall provide to Service Recipient such information technology
transitional services (individually and collectively, "Services"). If
there is any conflict or inconsistency between the terms and
conditions of a Statement of Work and the terms and conditions of this
Agreement (excluding for this purpose the Statements of Work), the
terms and conditions of the Statement of Work shall control.
(b) Statements of Work - Generally. Each of the Statements of Work entered
into by the parties shall: (i) refer expressly to this Agreement; (ii)
designate the date as of which the provisions of the Statement of Work
shall be effective and, if applicable, the term or period of time
during which
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Service Provider shall perform Services, provide resources or
otherwise discharge its obligations as specified in the Statement of
Work if different from the term set out in this Agreement (excluding
for this purpose the Statement of Work); (iii) describe the Services
to be performed, Work Product (as defined herein) to be delivered,
resources to be provided or obligations to be discharged by Service
Provider pursuant to the Statement of Work; (iv) describe the
obligations of Service Recipient related to the Statement of Work,
including any facilities, equipment, personnel and tasks or other
support to be provided or performed by Service Recipient; (v) specify
the payments to be made to Service Provider under the Statement of
Work, or, if applicable, the basis on which such payments shall be
computed; and (vi) specify any other terms and conditions appropriate
to the Services to be performed and the obligations of the parties. If
there is any conflict or inconsistency between the terms and
conditions of a Statement of Work and the terms and conditions of this
Agreement (excluding for this purpose the Statement of Work), the
terms and conditions of the Statement of Work shall control. Service
Recipient may request services through a letter, email, or other
written or electronic medium. The request for services will outline
the nature and scope of the services requested. Within thirty (30)
days after receipt of the request for services, Service Provider shall
provide a high-level estimate of the activities to be performed along
with an estimate of the number of hours required to perform each of
the activities. Preparation of the high level estimate shall be
charged at the hourly rates then in effect between Service Provider
and Service Recipient, or if no rate is specified, at Service
Provider's then-current rate for such activity. Service Recipient
shall have thirty (30) days to notify Service Provider if Service
Recipient desires Service Provider to prepare a Statement of Work.
Unless otherwise specified in a particular Statement of Work, the
Statement of Work shall be issued on a time and materials basis and
shall include an estimate of the hours needed to complete the
Statement of Work and the hourly rates applicable to the services
being provided. All services are contemplated to be performed at
Service Provider's location during normal business hours, excluding
weekends and Service Provider's holidays. If a Statement of Work
requires travel to Service Recipient's location or another location at
the request of Service Recipient, Service Provider shall xxxx travel
time incurred by Service Provider's employees at the hourly rate(s)
specified in the Statement of Work. Service Provider shall issue an
invoice monthly for such services in accordance with this Agreement.
For any Statement of Work for which GTE's GTEDS affiliate is a Service
Provider hereunder, the terms and conditions contained in Attachments
1 and 2, entitled "Service Level Agreement for Application Enhancement
and Development" and "SAP R/3 Service Level Agreement", respectively,
shall apply to such Statement of Work.
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(c) Order of Precedence. In the event of any conflict or inconsistency
between the terms and conditions of any Statement of Work, this
Agreement, the Software License Agreement among the parties and of
even date hereof, the Software Development and Technical Services
Agreement among the parties and of even date hereof, the Intellectual
Property Ownership and Cross License Agreement among the parties and
of even date hereof, and any other agreement among the parties hereof,
the terms and conditions shall take precedence in the following order:
(i) Statement of Work;
(ii) This Agreement (excluding for this purpose the Statements of
Work);
(iii) Software License Agreement or the applicable software license
agreement which is directed to the software for which the
Services are provided; and
(iv) Software Development and Technical Services Agreement.
(d) Milestones, Phases and Timing; Changes. Each of the Statements of
Work shall set out, if applicable, milestones and phases of the work.
When phases are specified, Service Provider shall not be obligated to
proceed with work on the next phase until Service Recipient has
provided written authorization to proceed. If Service Recipient has
not provided Service Provider with written authorization to proceed on
a specific phase, and it is necessary to commence or complete such
phase in order to meet any milestones specified in the Statement of
Work, Service Provider shall not have any obligations with respect to
such milestones and the Statement of Work shall be deemed to be
modified accordingly. The Statement of Work may be modified by mutual
written agreement, signed by both parties. No verbal changes to the
Statement of Work are permitted.
(e) Performance. All Services shall be performed in accordance with the
terms and conditions of this Agreement and the requirements, order of
performance and delivery dates specified in each Statement of Work.
Service Provider shall devote such time, efforts and resources to the
performance of Services as are necessary to accomplish the tasks
specified in any Statement of Work. The Service Provider may call upon
the expertise and/or assistance of its affiliates, subcontractors or
consultants in the performance of such Services, provided that Service
Provider shall obtain the prior written consent of Service Recipient
in the event it desires to use outside subcontractors or consultants.
If a
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Statement of Work specifies that some or all of the work will be
done by a subcontractors or consultant, no additional approval shall
be required.
(f) Third Party Software Licenses. The Service Recipient acknowledges
that Service Provider and its affiliates may be required to use
certain software licensed to GTE by third parties to provide Services
pursuant to this Agreement. If any licensor of such third party
software requires the payment of any consideration to permit Service
Provider to use the vendor's software in order to perform its
obligations under this Agreement, Service Provider shall provide
Service Recipient with thirty (30) days prior written notice of such
additional consideration. Service Recipient shall have the option to
(i) procure its own license to such software at its own expense, or
(ii) authorize Service Provider to incur such required additional
consideration on its behalf and at Service Recipient's expense. In the
event that Service Recipient does not agree to either (i) or (ii)
above, Service Provider shall not be required to provide the Services
for which such third party licenses are required. If the third party
requires Service Recipient to secure rights in such third party
software to receive the Services or to use the result of such
Services, Service Recipient shall be responsible for securing such
rights at its own cost and expense.
(g) Service Recipient Provided Software. If Service Recipient elects to
use Service Provider Hardware (as defined below) to operate and run
Service Recipient Provided Software (also as defined below) pursuant
to a Statement of Work, Service Recipient shall obtain all licenses
necessary for use of such software, pay any associated fees negotiated
with Service Provider for running such software for Service Recipient
and pay any costs related to obtaining required consents needed by
Service Provider to use such software for Service Recipient's benefit.
Service Recipient shall be responsible for all costs associated with
Service Recipient provided third party software. Service Recipient
agrees to indemnify and hold Service Provider harmless against any
loss, cost, claim, liability, damage, expense (including reasonable
attorney's fees), or demand by or on behalf of any person, firm,
corporation, or governmental authority resulting from or arising out
of Service Recipient's alleged violation of such third party software
rights, provided that prior to agreement on a Statement of Work, the
parties shall have worked diligently together to identify all license
rights needed by Service Recipient hereunder and to confirm that
Service Provider has the right to perform the services hereunder.
"Service Provider Hardware" shall mean the central processing units
and peripheral equipment installed in a Service Provider's facility
and utilized by Service Provider to provide Services described in any
Statement of Work. The term Service Provider Hardware does not include
circuit equipment from Service Recipient's site to Service
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Provider's facility, terminals, controllers, or telecommunications
equipment at Service Recipient's site(s) required to enable Service
Recipient to utilize Service Provider's Services, all of which are
Service Recipient's responsibility. "Service Recipient Provided
Software" shall mean software owned or licensed by Service Recipient
which is installed an operated at a Service Provider facility pursuant
to a Statement of Work.
2. COMPENSATION AND BILLING.
(a) Invoices. The charges for the Services shall be set out in the
applicable Statement of Work. Service Provider shall invoice Service
Recipient for Services in accordance with the payment schedule set
forth in the applicable Statement of Work. Each invoice shall
reference this Agreement and the applicable Statement of Work. The
invoices shall be itemized to show the details as to all billed items.
Payments shall be made within thirty (30) days from the date each
invoice is received by Service Recipient.
(b) Sales, Use and Other Taxes. In addition to the charges for Services,
Service Recipient shall pay Service Provider an amount equal to any
sales, use, privilege, gross revenue, excise, or any other tax (except
income and franchise taxes), as well as any assessments or duties with
respect to the Services lawfully levied by a duly constituted
governmental authority and for which Service Provider is required, by
law, to collect from Service Recipient. In addition each party shall
be responsible for all real and personal property taxes imposed on
software and equipment owned by the respective parties on January 1 of
every year. If Service Recipient determines that any Services are
exempt from a tax, Service Recipient must provide Service Provider a
properly completed exemption certificate, for each jurisdiction for
which Service Recipient is claiming an exemption, before Service
Provider will exclude the respective tax from amounts charged to
Service Recipient. Service Recipient will not deduct any tax amount
from remittances to Service Provider until a properly completed
exemption certificate, for all jurisdictions for which Service
Recipient is claiming an exemption, has been provided to Service
Provider.
(c) Expense Reimbursement. Service Recipient shall reimburse Service
Provider for reasonable expenses for travel, meals and lodging
incurred by Service Provider in the performance of its obligations
under this Agreement. Any such charges shall be in compliance with
Service Provider's employee expense policies. There shall be no xxxx-
up of such expense charges. Service Provider shall maintain
documentation of expenses incurred, and shall provide copies of
invoices of $100 or more upon Service Recipient's request. Service
Provider shall xxxx Service
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Recipient monthly for expenses as they accrue. The parties will
specify any limitation on the reimbursement of expenses in the
applicable Statement of Work. It is acknowledged and agreed that if
Service Provider is reasonably required to incur expenses beyond such
limitation in order to provide the Services, then Service Provider is
excused from performing such Services until said expense limitation is
removed or changed as mutually agreed, provided that Service Provider
promptly notifies Service Recipient of the need to exceed the
limitation.
(d) Records. Service Provider shall maintain complete and accurate
records in a form consistent with generally accepted accounting
practices, to substantiate Service Provider charges. Service Provider
shall retain, and make available upon request, such records for a
period of three (3) years from the date of invoice for Services.
Service Recipient and its authorized agents, subject to obligations of
confidentiality as set forth in this Agreement, shall have access to
such records upon prior written request during normal business hours
during the term of this Agreement and during the respective periods in
which Service Provider is required to maintain such records pursuant
to this subsection 2(d). Access to the records shall be made at the
location where such records are normally maintained.
(e) Late Payment. Late payment charges may be imposed by Service Provider
at the rate of 1 1/2% per month (18%) per year). Interest shall not be
payable by Service Recipient for amounts on invoices which it has
disputed in good faith provided that Service Recipient pays the
applicable amount due, if any, within thirty (30) days of the
resolution of the dispute. With respect to disputed invoices,
undisputed amounts must be paid within thirty (30) days from the date
of the invoice. Service Provider must be advised in writing of any
amounts disputed by Service Recipient and the basis for the dispute
within ten (10) days from the date of the invoice or the entire
invoice must be paid.
3. TERM.
This Agreement is effective as of _____________ and shall continue in
effect for a term of one (1) year, or such term as may be set out in a
Statement of Work, or until GENUITY exercises its right in its sole
discretion to terminate for convenience under Section 24 (c) of this
Agreement. This Agreement shall remain in effect with respect to and for
the duration of any Statement of Work that is agreed by the parties to
extend beyond the end of the term. In the event of any termination or
expiration, the Parties agree to reasonably cooperate in transitioning the
work to any successor service provider, and upon Service Recipient's
request and at its expense, Service Provider shall use commercially
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reasonable efforts to secure Service Recipient's continued use of
applicable third party licenses.
4. ACCEPTANCE.
(a) Acceptance. Each Statement of Work shall specify the criteria, if
any, that Service Provider must meet in order for the Work Products
described in the Statement of Work to be accepted by Service
Recipient. It may also specify a test plan, and such other information
as Service Provider and Service Recipient mutually deem appropriate
and the period of time, if any, that Service Recipient shall have to
review such Work Product and provide notice of acceptance or rejection
to Service Provider. Failure to accept or reject such Work Product
within the specified period of time or the commercial use of such Work
Product by or for the benefit of Service Recipient shall be deemed to
be acceptance.
(b) Rejection and Revision. If Service Recipient rejects any Work
Product, it shall specify in reasonable detail in writing the reasons
for rejection and the requirements for revision. If the notice of
rejection is not sufficiently detailed to allow Service Provider to
determine why such Work Product is unacceptable, Service Provider may
request in writing that Service Recipient provide sufficient
additional information. If Service Provider and Service Recipient have
joint responsibility for the Work Product and the Work Product
requires revision, Service Provider shall assist Service Recipient in
making revisions necessary for the Work Product to meet the acceptance
criteria within a period of time that is reasonable under the
circumstances. If Service Provider has sole responsibility for the
Work Product, then it shall make the necessary revisions within a
period of time that is reasonable under the circumstances.
5. CONFIDENTIAL INFORMATION.
(a) Confidentiality. In the course of requesting and performing Services
pursuant to this Agreement, each party may receive or acquire from the
other information or data pertaining to specifications, drawings,
sketches, models, samples, computer programs, methods, concepts, know-
how, techniques, processes, and other technical or business
information that the other party desires to protect against
unauthorized use or further disclosure. Unless otherwise expressly set
forth in a Statement of Work, for purposes of this Agreement,
"Confidential Information" shall mean: (i) any information in written,
other tangible or electronic form which is labeled by the disclosing
party as "confidential", "proprietary" or with a
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legend of similar import; (ii) software in any form (including related
documentation), whether or not labeled in accordance with the
preceding; (iii) Services and Work Products provided pursuant to this
Agreement, with the ownership of and proprietary interest therein
being defined herein or in the applicable Statement of Work; or (iv)
information orally disclosed and identified as confidential at the
time of such disclosure which is summarized in writing within thirty
(30) days of such disclosure. Each party shall remain the exclusive
owner of its Confidential Information.
(a) Use of Confidential Information. The Confidential Information of the
disclosing party may be used by the receiving party only for the
performance or use of Services or Work Products to be provided
pursuant to this Agreement and may only be disclosed to those
employees, subcontractors or agents of the receiving party who have a
need to know in order to perform or use Services or Work Products
pursuant to this Agreement. Except and to the extent set forth in
subsection 6(c), the receiving party may not disclose Confidential
Information of the other party to any other person, entity, or the
public without the prior written consent of the disclosing party.
However, such Confidential Information may be disclosed by the
receiving party without the necessity of prior written consent, to the
receiving party's subcontractors or consultants who require access to
such Confidential Information to perform or use the Services under
this Agreement, provided such persons have entered into written
agreements which contain obligations of nondisclosure and nonuse no
less restrictive than set forth in this Section 6. It is agreed that
such written agreements shall be enforceable by the disclosing party.
(b) Exceptions. The obligations in subsection 6(b) shall not apply to
that portion of any information received from the disclosing party
which is: lawfully in the receiving party's possession, with no
restriction on use or disclosure, prior to its acquisition from the
disclosing party; received in good faith by the receiving party, with
no restrictions on use or disclosure, from a third party not subject
to any confidential obligation to the disclosing party; now or later
becomes publicly known through no breach of confidential obligation by
the receiving party; released by the disclosing party to any other
person, firm or entity (including governmental agencies or bureaus)
without restriction on use or disclosure; or independently developed
by or for the receiving party without any reliance on or use of
Confidential Information of the disclosing party. The foregoing
exceptions shall not apply to software in any form.
(d) Disclosure and Notification. If a receiving party receives a request
to disclose any Confidential Information of the disclosing party
(whether pursuant to a subpoena, an order issued by a court or other
governmental
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authority of competent jurisdiction or otherwise) and, on
advice of legal counsel, determines that disclosure is required under
applicable law, the receiving party agrees that, prior to disclosing
any Confidential Information of the disclosing party, it shall (i)
notify the disclosing party of the existence and terms of such request
or advice, (ii) cooperate with the disclosing party in taking legally
available steps to resist or narrow any such request or to otherwise
eliminate the need for such disclosure at the disclosing party's sole
expense, if requested to do so by the disclosing party, and (iii) if
disclosure is required, it shall be the obligation of the disclosing
party to use its commercially reasonable efforts to obtain a
protective order or other reliable assurance that confidential
treatment shall be afforded to such portion of the Confidential
Information of the disclosing party as is required to be disclosed.
(e) Continuing Obligation. The obligation of non-disclosure and non-use
with respect to Confidential Information of the disclosing party shall
survive termination of this Agreement and shall continue for a period
of 5 years thereafter, provided that the obligations of non-disclosure
and non-use shall continue in perpetuity for software included in
Confidential Information.
6. OWNERSHIP AND LICENSE OF WORK PRODUCTS.
(a) Ownership. Unless expressly provided otherwise in the applicable
Statement of Work, the ownership of any and all right, title and
interest in and to work products (including without limitation:
computer programs and documentation; photographs; logos; drawings;
artistic and graphical works; reports; data; information; and other
works of authorship) made by Service Provider, or its suppliers or
contractors, during performance of Services for Service Recipient in
accordance with the applicable Statement of Work (all such works
herein "Work Products"), shall be determined in accordance with the
terms and conditions of the Software Development and Technical
Services Agreement relating to ownership of intellectual property,
with those terms and conditions being applied to any Statement of Work
issued hereunder and being incorporated herein in their entirety by
this reference.
(b) License. Unless expressly provided otherwise in the applicable
Statement of Work:
(1) If Service Provider owns any Work Products, any license granted
to Service Recipient by Service Provider in or to any such Work
Products shall be on the same terms and conditions as the license
grant by GTE to GENUITY contained in the Software
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License Agreement, with such terms and conditions being
incorporated herein in their entirety by this reference.
(2) If Service Recipient owns any Work Products, and subject to
Service Provider's obligations with respect to Service
Recipient's Confidential Information, Service Provider shall
retain a non-exclusive, perpetual, world-wide, royalty-free
license to use any such Work Product for its ordinary and usual
business purposes.
7. DISPUTE RESOLUTION.
(a) General. Except as provided in subsection 7(d) below, any controversy
or claim arising out of or relating to this Agreement, or the breach
thereof, shall attempt to be settled first, by good faith efforts of
the parties to reach mutual agreement, and second, if mutual agreement
is not reached to resolve the dispute, by final, binding arbitration
as set out in subsection 7(c) below.
(b) Initial Resolution. A party that wishes to initiate the dispute
resolution process shall send written notice to the other party with a
summary of the controversy and a request to initiate these dispute
resolution procedures. Each party shall appoint a knowledgeable,
responsible representative from the company who has the authority to
settle the dispute, to meet and negotiate in good faith to resolve the
dispute. The discussions shall be left to the discretion of the
representatives, who may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence among the representatives for purposes
of these negotiations shall be treated as Confidential Information
developed for purposes of settlement, shall be exempt from discovery
and production, and shall not be admissible in the arbitration
described above or in any lawsuit pursuant to Rule 408 of the Federal
Rules of Evidence. Documents identified in or provided with such
communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible, be
admitted in evidence in the arbitration or lawsuit. The parties agree
to pursue resolution under this subsection 7(b) for a minimum of sixty
(60) days before requesting arbitration.
(c) Arbitration. If the dispute is not resolved under the preceding
subsection 7(b) within sixty (60) days of the initial written notice,
either party may demand arbitration by sending written notice to the
other party. The parties shall promptly submit the dispute to the
American Arbitration Association for resolution by a single neutral
arbitrator acceptable to both parties, as selected under the rules of
the American Arbitration
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Association. The dispute shall then be administered according to the
American Arbitration Association's Commercial Arbitration Rules, with
the following modifications: (i) the arbitration shall be held in a
location mutually acceptable to the parties, and if the parties do not
agree, the location shall be New York City; (ii) the arbitrator shall
be licensed to practice law; (iii) the arbitrator shall conduct the
arbitration as if it were a bench trial and shall use, apply and
enforce the Federal Rules of Evidence and Federal Rules of Civil
Procedure; (iv) except for breaches related to Confidential
Information, the arbitrator shall have no power or authority to make
any award that provides for consequential, punitive or exemplary
damages; (v) the arbitrator shall control the scheduling so that the
hearing is completed no later than 60 days after the date of the
demand for arbitration; and (vi) the arbitrator's decision shall be
given within 5 days thereafter in summary form that states the award,
without written decision, which shall follow the plain meaning of this
Agreement, the relevant documents, and the intent of the parties.
Judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction over the parties. Each party to the dispute
shall bear its own expenses arising out of the arbitration, except
that the expenses of the facilities to conduct the arbitration and the
fees of the arbitrator shall be shared equally by the parties.
(d) Injunctive Relief. The foregoing notwithstanding, each party shall
have the right to seek injunctive relief in an applicable court of law
or equity independent of any resolution of the dispute in accordance
with the foregoing.
8. RELATIONSHIP OF PARTIES.
(a) Independent Contractors. In providing any Services pursuant to this
Agreement, Service Provider and its affiliates are independent
contractors and not agents or representatives of Service Recipient.
Persons furnished by the respective parties shall be solely the
employees or agents of such parties, respectively, and shall be under
the sole and exclusive direction and control of such parties. They
shall not be considered employees of the other party or parties for
any purpose. Each party shall also be responsible, respectively, for
payment of taxes, including federal, state, and municipal taxes,
chargeable or assessed with respect to its employees or agents, such
as social security, unemployment, worker's compensation, disability
insurance and federal and state income tax withholding.
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(b) No Performance. Neither party undertakes by this Agreement or any
Statement of Work to conduct the business or operations of the other
party. Nothing contained in this Agreement or any Statement of Work is
intended to give rise to a partnership or joint venture between the
parties or to impose upon the parties any of the duties or
responsibilities of partners or joint venturers.
9. FORCE MAJEURE.
If performance of any Services under this Agreement is prevented,
restricted or interfered with by reason of acts of God, wars, revolution,
civil commotion, acts of public enemy, embargo, acts of government in its
sovereign capacity, labor difficulties, including without limitation,
strikes, slowdowns, picketing or boycotts, communication line failures,
power failures, or any other circumstances beyond the reasonable control
and not involving any fault or negligence of the party affected, the party
affected, upon giving prompt notice to the other party, shall be excused
from such performance on a day-to-day basis during the continuance of such
prevention, restriction, or interference (and the other party shall
likewise be excused on a day-to-day basis during the same period, from
performance of its obligations which are dependent upon or affected by such
nonperformance), provided, however, that the party so affected shall use
its commercially reasonable efforts to avoid or remove such causes of
nonperformance and both parties shall proceed immediately with the
performance of their obligations under this Agreement whenever such causes
are removed or cease. If a force majeure condition continues to prevent a
party from performing for more than (30) consecutive days, then the other
party may terminate the applicable Statement of Work.
10. REGULATORY COMPLIANCE.
(a) Cooperation. This Agreement is subject at all times to any statute,
order, rule, or regulation or any state or federal regulatory agency
having competent jurisdiction over one or both of the parties hereto
or the Services provided hereby. The parties agree to cooperate with
each other and with any applicable regulatory agency so that any and
all necessary approvals may be obtained. During the term of this
Agreement, the parties agree to continue to cooperate with each other
in any review of this Agreement by a regulatory agency so that the
benefits of this Agreement may be achieved.
(b) Filing Agreement. Notwithstanding the effective date and term of this
Agreement as stated elsewhere, to the extent that any statute, order,
rule or regulation or any regulatory agency having competent
jurisdiction over one or both parties to this Agreement, shall require
that this Agreement or
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subsequent amendment be filed with or approved by such regulatory
agency before the Agreement or amendment may be effective, this
Agreement or amendment shall not be effective in such jurisdiction
until the first business day after such approval or filing shall have
occurred.
11. INDEMNIFICATION.
(a) General. GTE and GENUITY, to the fullest extent permitted by law,
each shall defend, indemnify and hold harmless the other and its
affiliates, officers, agents and employees from any and all amounts
payable under any judgment, verdict, court order or settlement (and
associated fees and disbursements of counsel) arising from or related
to any third-party claims for injury, sickness, disease or death of
any person or damage to any real or tangible personal property or
assets to the extent arising from the indemnitor's (either directly or
through its officers, agents, subcontractors or representatives)
negligence or willful misconduct in the performance of this Agreement
provided, however, that if a claim is the result of the joint
negligence or joint willful misconduct of GTE and GENUITY, the amount
of the claim for which each party is entitled to indemnification shall
be limited to that portion of such claim that is attributable to the
negligence or willful misconduct of the indemnifying party. The
parties agree that the price for Services provided under this
Agreement includes consideration for the obligation to indemnify as
set out in this subsection 13(a).
(b) Losses. GENUITY and GTE each shall be responsible for any and all
claims, actions, damages, liabilities, costs and expenses, including
reasonable attorneys' fees and expenses (collectively, "Losses"), to
their respective tangible personal or real property (whether owned or
leased), and each party agrees to look only to its own insuring
arrangements (if any) with respect to such Losses. Subject to the
procedures set forth below, each party shall indemnify, defend, and
hold the other party harmless from any and all Losses arising out of,
under or in connection with claims for which the indemnitor is
responsible under the preceding sentence.
(c) Waivers. GENUITY and GTE waive all rights to recover against each
other for any Loss to their respective tangible personal property
(whether owned or leased) from any cause covered by insurance
maintained by each of them, including their respective deductibles or
self-insured retentions. GENUITY and GTE shall cause their respective
insurers to issue appropriate waivers of subrogation rights
endorsements to all property insurance policies maintained by each
party. Each party shall give the other written notice if a waiver of
subrogation is
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unobtainable or obtainable only at additional expense. If the party
receiving such notice agrees to reimburse the other party for such
additional expense, the other party shall obtain such waiver of
subrogation. If a waiver is unobtainable or if a party elects not to
pay the additional expense of a waiver, then neither party nor their
insurers shall waive such subrogation rights.
(d) Conditions. The indemnification obligations set forth in this Section
11 shall not apply unless the party claiming indemnification: (i)
notifies the other promptly in writing of any matters in respect of
which the indemnity may apply and of which the notifying party has
knowledge, in order to allow the indemnitor the opportunity to
investigate and defend the matter; provided, however, that the failure
to so notify shall only relieve the indemnitor of its obligations
under this Section 11 if and to the extent that the indemnitor is
prejudiced thereby; and (ii) gives the other party full control of the
response thereto and the defense thereof, including any agreement
relating to the settlement thereof. However, if the indemnitor fails
to promptly assume the defense of the claim, the party entitled to
indemnification may assume the defense at the indemnitor's cost and
expense. The indemnitor shall not be responsible for any settlement or
compromise made without its prior written consent, unless the
indemnitee has tendered notice and the indemnitor has then refused to
assume and defend the claim and it is later determined that the
indemnitor was obligated to assume and defend the claim. The
indemnitee agrees to cooperate in good faith with the indemnitor at
the request and expense of the indemnitor.
12. LIMITATION OF LIABILITY.
(a) General. A party's and its affiliates' liability arising out of or
relating to a Statement or Statements of Work and this Agreement,
including without limitation on account of performance or
nonperformance of obligations hereunder, regardless of the form of the
cause of action, whether in contract, tort (including without
limitation negligence), statute or otherwise, shall in no event exceed
the lesser of (i) the price to be paid to Service Provider for the
completed Statement of Work (whether set out as a fixed price,
estimated price, not-to-exceed amount, or other similar expression of
the total price for the work to be performed under the Statement of
Work); (ii) the amount actually paid by Service Recipient to Service
Provider for the particular Statement of Work from which the claim
arises; or (iii) if the price to be paid to Service Provider for the
Statement of Work is expressed as a recurring periodic charge, the
liability shall be limited to the average of three (3) months charges
for technical services based on the average previous twelve (12)
month's (or such lesser number of
14
months that the Statement of Work has been in effect) of the invoices
actually paid by Service Recipient under the Statement of Work. The
limitation in the immediately preceding sentence does not apply to a
party's obligations under the Sections entitled Indemnification and
Confidential Information, nor does it apply to willful misconduct or
gross negligence on the part of a party.
(b) Limitation. EXCEPT FOR BREACHES RELATED TO CONFIDENTIAL INFORMATION,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGE OR
LOST PROFITS OF ANY KIND WHATSOEVER EVEN IF A PARTY OR ITS AFFILIATES
HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
(c) Benefits Under Licenses. Anything contained herein to the contrary
notwithstanding, this Agreement shall not constitute an agreement to
start work, to provide Services or Work Product or to make available
to Service Recipient the benefits under any agreement, license or
arrangement if doing so without the consent of and/or payment to
another party thereto would constitute a breach thereof or in any
material way affect the rights of Service Provider thereunder, unless
and until such consent is obtained and payment, if any, made to such
party by Service Provider. Service Provider shall use commercially
reasonable efforts to secure such consents and benefits under any such
agreement or arrangement. If Service Provider cannot: (i) obtain such
consent; or (ii) Service Provider and the third party vendor cannot
agree on a commercially reasonable payment, if such is required, or
(iii) if providing the Services or Work Products or making the
benefits under any such agreement, license or arrangement available
would materially affect Service Provider's right thereunder, Service
Provider shall not be required to provide any Services or Work
Products which are dependent upon any agreement, license or
arrangement as to which the third party provider has objected in
writing to making the benefits of such agreement, license or
arrangement available to Service Recipient. Service Recipient may,
however, obtain the requisite license or pay such fees that it deems
appropriate in order for Service Provider to provide the Services, if
Service Provider's provision of Services pursuant to such Service
Recipient License or payment is without any adverse material affect to
Service Provider.
13. CHANGES IN MANNER OF PROVIDING SERVICES.
Service Recipient acknowledges that Service Provider and its affiliates may
in the future determine to outsource certain information technology
functions or
15
perform such functions using different computer software operating systems
or applications. These changes may prevent Service Provider from providing
certain Services or Work Products to Service Recipient pursuant to this
Agreement in the manner in which they have been provided prior to such
change. In the event Service Provider determines to take any such action,
it will provide Service Recipient with one hundred twenty (120) days prior
written notice and will cooperate with Service Recipient to enable Service
Recipient to continue to receive any affected Services and Work Products
through arrangements with Service Provider's outsource providers or through
conversion of Service Recipient data for use on such operating systems or
applications. In the event Service Provider determines to make such
changes, Service Recipient shall have the right to terminate this Agreement
or any affected Statement of Work without any liability or penalty. Any
customizations requested by Service Recipient within or to the systems
utilized by Service Provider to provide the Services shall be at Service
Provider's discretion. Service Recipient shall be required to pay the
mutually agreed upon cost of such customizations.
14. INSURANCE.
(a) Coverage. Each of GTE and GENUITY agrees to maintain in full force
and effect during the term of this Agreement, and so long as the
indemnity obligations hereunder are in effect, the following minimum
insurance coverages: (i) Worker's Compensation and Occupational
Disease covering each party's full liability under the Statutory
Workers' Compensation Laws for the state in which the Service is being
performed; (ii) Employer's Liability Insurance in the minimum amount
of $100,000 per accident, $100,000 disease per employee, and $500,000
disease aggregate; (iii) General Liability Insurance - Broad Form,
including, but not limited to each party's Protective Liability,
Blanket Contractual Liability and Products Liability/Completed
Operations in the minimum amounts of $1,000,000 per occurrence; and
(iv) If the use of motor vehicles is required, comprehensive Motor
Vehicle Liability Insurance to include, but not limited to owned, non-
owned, leased, and hired vehicles in the minimum amounts of $1,000,000
combined single limit per occurrence for Property Damage and any
accident resulting in bodily injury or the death of one or more
persons, and the consequential damages arising therefrom.
(b) Certificates of Insurance. Certificates of Insurance, incorporating
the above-described endorsements, shall be furnished to a party upon
request of the other party.
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15. REPRESENTATIONS AND WARRANTIES.
Each of GTE and GENUITY represents, warrants, and covenants to the other
party that:
(a) In performing Services, it shall comply with all applicable laws,
codes, ordinances, orders, rules and regulations of local, state, and
federal governments and agencies and instrumentalities, including, but
not limited to, applicable wage and hour, safety and environmental
laws, and all standards and regulations of appropriate regulatory
commissions and similar agencies.
(b) All Services furnished by it shall be performed by qualified personnel
at a level of professional performance standard within the industry in
which the Services are provided.
(c) It has all rights and licenses to perform the Services contemplated by
this Agreement and any Statement of Work incorporated herein.
(d) THE WARRANTIES IN THIS SECTION 15 AND ANY WARRANTY IN A STATEMENT OF
WORK, BUT ONLY IF SPECIFICALLY IDENTIFIED AS AN EXPRESS WARRANTY IN
SUCH STATEMENT OF WORK (INCLUDING SERVICE LEVEL AGREEMENTS), ARE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OR WHETHER ARISING
BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR
PROFESSION OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR
WARRANTIES AGAINST INFRINGEMENT. Except for the warranties expressly
set forth in this Section 15 and any Statement of Work, Service
Recipient acknowledges and agrees that it has relied on no other
representations or warranties and that no other representations or
warranties have formed the basis of its bargain hereunder.
(e) All representations, warranties and covenants of each of the parties
contained in this Section 15 shall continue for the term of this
Agreement and shall survive its termination.
16. ASSIGNMENT AND SUBCONTRACTING.
(a) Neither this Agreement nor any rights or obligations hereunder shall
be assignable by either of the parties hereto; provided that either
party may delegate all or any portion of its obligations to perform
Services under this
17
Agreement to one or more of its affiliates or
either party may assign to any affiliate without the consent of the
other party.
(b) Each party may use subcontractors to perform the Services under this
Agreement as specified in Section 1(d). Each party shall be
responsible for the fulfillment of its obligations hereunder,
notwithstanding the performance of such obligations by its
subcontractors.
17. EQUAL EMPLOYMENT.
(a) General Compliance. Without limitation of Section 18, COMPLIANCE WITH
LAWS, each party shall comply with applicable laws concerning
employment, including, but not limited to the following, which are
incorporated herein by specific reference:
(1) The Equal Employment Opportunity Clause set forth in Section 202,
paragraphs I through 7, of Executive Order 11246, as amended,
relative to Equal Employment Opportunity and the implementing
Rules and Regulations of the Office of Federal Contract
Compliance (hereinafter referred to as "the OFCCP") relating to
equal employment opportunity.
(2) The Affirmative Action Clause set forth in Section 60-741.4 of
the Affirmative Action Regulations on Handicapped Workers, issued
by the OFCCP pursuant to Section 503 of the Vocational
Rehabilitation Act of 1973, as amended.
(3) The Affirmative Action Clause set forth in Section 60-250.4 of
the regulations issued by the OFCCP under Section 402 of the
Vietnam Era Veteran's Readjustment Assistance Act of 1974.
(4) Public Law 95-507 and Executive Orders 11625 and 12138.
(5) The Immigration Reform and Control Act of 1986 and any and all
rules and regulations pertaining thereto. In compliance with the
Act, each of the parties requires all approved contracting firms
to supply only persons authorized to work in the United States
pursuant to the Act. Each of the parties shall be responsible for
complying with the Act with regard to all employees supplied to
the other party.
(6) Title I of the Americans with Disabilities Act, 42 U.S.C.A. 12101
et seq.
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(b) ADA. If any persons furnished by either party under the Agreement or
any Statement of Work have a disability as defined in the Americans
with Disabilities Act, 42 U.S.C.A. 12101 et seq. (the ADA), the
furnishing party shall, where required by Title I of the ADA and at
its sole expense, provide "reasonable accommodations" that may be
required under Title I of the ADA. If Service Provider performs
Services at facilities operated by Service Recipient, Service
Recipient shall be responsible, at its sole expense, for any physical
changes to Service Recipient's facility that may be required under the
ADA with respect to persons utilized by Service Provider in performing
the Services.
(c) Work Environment. Both parties agree to provide a work environment
free from all forms of sexual harassment, including but not limited
to, any unwelcome sexual advances, requests or demands for sexual
favors, and other visual, verbal, or physical conduct of a sexual
nature.
18. COMPLIANCE WITH LAWS.
GTE and GENUITY shall each comply with the provisions of all applicable
federal, state, and local laws, ordinances, regulations and codes
(including procurement of required permits or certificates) in fulfillment
of their obligations under this Agreement. The Confidential Information of
each party may be subject to U.S. export and foreign transactions control
regulations. Each party undertakes that it shall not export, nor cause nor
permit to be exported, the other party's Confidential Information out of
the United States of America without such other party's prior written
consent and without compliance with applicable law and regulation; nor
shall such Confidential Information be made available, directly or
indirectly, for use in any project associated with the design, development,
production, testing, stockpiling or use of: (a) nuclear weapons or
facilities to produce nuclear explosives; or, (b) missiles; or, (c)
chemical or biological warfare agents. Each party agrees to comply with
all applicable laws and regulations relating to the exportation of
technical information, as they currently exist and as they may be amended
from time to time.
19. PLANT WORK RULES AND RIGHT OF ACCESS.
(a) Compliance. Employees, subcontractors, and agents of the parties,
while on the premises of the other, shall comply with all plant rules,
regulations and reasonable company standards for security, including
(when required by U.S. government regulations) submission of
satisfactory clearance from U.S. Department of Defense and other
federal authorities concerned.
(b) Access. Each party shall permit reasonable access during normal
working hours to its facilities that are used in connection with the
19
performance of Services. No charge shall be made for such visits.
Reasonable prior notice shall be given when access is required.
(c) Limitation on Access. If either party is given access, whether on-
site or through remote facilities, to any computer or electronic data
storage system of the other party in order to accomplish the Services
called for in this Agreement, the party that receives such access
shall limit such access and use solely to perform Services within the
scope of this Agreement and shall not access or attempt to access any
computer system, electronic file, software or other electronic
services other than those specifically required to accomplish the
Services required under this Agreement. Under no circumstances shall
either party's personnel access any networks or facilities of the
other party for the purpose of accessing other external networks, nor
shall any such capabilities for such access be published or made known
via any medium, as for example and not by way of limitation, posting
on bulletin boards or E-mail. Any such use or publication shall be a
material breach of this Agreement. Neither party shall use back doors,
data capture routines, games, viruses, worms, or Trojan horses and any
intentional introduction of such into the other party's data networks
shall be deemed a material breach of this Agreement. The party
receiving access shall limit such access to those of its employees
whom the other party has authorized in writing to have such access in
connection with this Agreement or the applicable Statement of Work,
and shall strictly follow all security rules and procedures for use of
the providing party's electronic resources. All user identification
numbers and passwords and any information obtained as a result of
access to and use of a party's computer and electronic data storage
systems shall be deemed to be, and shall be treated as, Confidential
Information under applicable provisions of this Agreement. Each party
agrees to cooperate with the other in the investigation of any
apparent unauthorized access to a party's computer or electronic data
storage systems.
20. SERVICE RECIPIENT RESPONSIBILITIES.
Service Recipient agrees to perform in a timely fashion those tasks, and to
provide the personnel, facilities and accurate information as agreed by the
parties and set forth in the applicable Statement of Work. Service
Recipient further agrees to cooperate with Service Provider in its
performance of this Agreement, to not unreasonably withhold its consent to
any matter for which consent is required or requested.
20
21. PERMITS.
Unless otherwise specifically provided for in this Agreement, Service
Provider shall obtain and keep in full force and effect, at its expense,
any permits, licenses, consents, approvals and authorizations ("Permits")
necessary for and incident to the performance and completion of the
Services. Notwithstanding the foregoing, Service Recipient shall obtain
and keep in full force and effect, at its expense, any Permits related to
its facilities and the conduct of its business.
22. PUBLICITY.
The parties agree to submit to one another, for prior written approval, all
advertising, sales promotion, press releases and other publicity matters
relating to the Services performed pursuant to this Agreement, when its
respective name or xxxx is mentioned or language from which the connection
of said name or xxxx xxx be inferred or implied. The parties further agree
not to publish or use such advertising, sales promotions, press releases,
or publicity matters without such prior written approval. Any approval
required under this Section 22 shall not be unreasonably withheld or
delayed by either party. Notwithstanding the foregoing, Service Provider
may list Service Recipient as a customer in promotional and marketing media
and describe in general terms the Services provided by Service Provider
under this Agreement in proposals and other marketing materials.
23. TRADEMARKS, TRADENAMES AND OTHER INTELLECTUAL PROPERTY.
Except as expressly set forth in this Agreement or in a separate written
agreement between GTE and GENUITY, nothing in this Agreement or any
Statement of Work shall grant, suggest or imply any right, license or
authority for one party to use the name, trademarks, service marks, trade
names or domain names of the other for any purpose whatsoever. Except and
to the extent expressly set forth in this Agreement or in a separate
written agreement between GTE and GENUITY, nothing in this Agreement or any
Statement of Work shall be deemed to grant to either party any right or
license under any intellectual property of the other party.
24. TERMINATION OF WORK.
(a) Termination Events. Either party may terminate or cancel this
Agreement or any Statement of Work, effective immediately, upon
written notice to the other party, if any of the following events
occur:
21
(1) The other files a voluntary petition in bankruptcy (other than as
creditor).
(2) The other is adjudged bankrupt.
(3) A court assumes jurisdiction of the assets of the other under a
federal reorganization act.
(4) A trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other.
(5) The other becomes insolvent or suspends its business.
(6) The other makes an assignment of its assets for the benefit of
its creditors except as required in the ordinary course of
business.
(b) Termination for Breach. Either party may terminate or cancel this
Agreement or a Statement of Work, for a material breach or default of
any of the terms, conditions or covenants of this Agreement by the
other, provided that such termination or cancellation may be made only
following the expiration of a thirty (30) day period ("Cure Period")
during which the breaching party has failed to cure such breach after
having been given written notice thereof. In such event, the non-
breaching party may terminate by giving 10 days written notice of
termination, after the expiration of the Cure Period.
(c) Termination for Convenience. Service Recipient may terminate this
Agreement or a Statement of Work during the term of this Agreement or
a Statement of Work, for convenience on one hundred twenty (120) days
prior written notice to Service Provider. In the event of termination
by Service Recipient pursuant to this Sub-part, prior to the end of
the term, Service Recipient will reimburse Service Provider for all
Service Recipient-approved, third party costs for equipment or
software which have been incurred by Service Provider after the
execution of this Agreement as a direct result of Service Provider's
provision of Services under this Agreement or any Statement of Work,
provided that Service Recipient shall be entitled to any right,
license or title related to any such equipment or software to the
extent Service Provider has the ability to convey such right, license
or title.
(d) Termination Assistance. Upon termination of a Statement of Work,
Service Provider shall perform the following turnover services if
requested in writing by Service Recipient:
22
(1) Prepare and submit a detailed turnover plan which includes the
overall strategy, schedule, itemization of turnover deliverables,
and tasks required to complete the turnover; and
(2) Transfer date files (archived and current), files, and
documentation to Service Recipient as may be provided in the
Statement of Work.
Service Recipient shall pay Service Provider for the turnover services
delineated in this subsection 24(d) at the hourly rates specified in
the Statement of Work or if no rates are specified, at Service
Provider's then current rates for such services. Except as expressly
stated herein, Service Recipient acknowledges that Service Provider
shall provide no turnover assistance except as specifically requested
in writing by Service Recipient and agreed to in writing by Service
Provider.
(e) Termination under Statement of Work. Statements of Work may be
terminated as set out under their specific terms, if different from
those set out in subsections (a), (b) and (c) of Section 24 above.
25. NOTICE.
Any written notice either party may give the other concerning the subject
matter of this Agreement shall be in writing and given or made by means
that obtain a written acknowledgment of receipt. If the notice pertains to
a Statement of Work performed by any of the following entities notice shall
be sent to the applicable company addresses shown below, which may be
changed by written notice:
To GTE SERVICE CORPORATION:
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: _____________
To GTE DATA SERVICES INCORPORATED:
Xxx Xxxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: _____________
To GTE CONSOLIDATED SERVICES INCORPORATED:
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: _____________
To GTE COMMUNICATION SYSTEMS INCORPORATED:
0000 Xxxx Xxxxx
00
Xxxxx, Xxxxxx, Xxxxx 00000
Attention:_____________
To GENUITY:
0 Xxx xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: _____________
Notice shall be deemed to have been given or made when actually received,
as evidenced by written acknowledgment of receipt.
26. WAIVER OF TERMS AND CONDITIONS.
Failure to enforce any of the terms or conditions of this Agreement shall
not constitute a waiver of any such terms or conditions, or of any other
terms or conditions.
27. SEVERABILITY.
Where any provision of this Agreement is declared invalid, illegal, void or
unenforceable, or any changes or modifications are required by regulatory
or judicial action, and any such invalid, illegal, void or unenforceable
provision, or such change or modification, substantially affects any
material obligation of a party hereto, the remaining provisions of this
Agreement shall remain in effect and the parties shall mutually agree upon
a course of action with respect to such invalid provision or such change or
modification to the end that the purposes of this Agreement are carried
out.
28. SURVIVAL OF OBLIGATIONS.
The provisions in the Agreement relating to Confidentiality,
Indemnification, Dispute Resolution, Termination, Compensation and Billing,
Limitation of Liability, and Insurance shall survive any termination,
cancellation or expiration of this Agreement.
29. APPLICABLE LAW.
This Agreement, and the rights and obligations contained in it, shall be
governed by and construed in accordance with the laws of the State of New
York, without regard to any conflicts of law principles that would require
the application of the laws of any other jurisdiction.
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30. NO UNREASONABLE DELAY OR WITHHOLDING.
Where agreement, approval, acceptance, consent or similar action by GENUITY
or GTE is required, such action shall not be unreasonably delayed or
withheld.
31. ENTIRE AGREEMENT.
This Agreement represents the entire understanding between the parties with
the respect to its provisions and cancels and supercedes all prior
agreements or understandings, whether written or oral, with respect to the
subject matter. This Agreement may only be modified or amended by an
instrument in writing signed by duly authorized representatives of the
parties. This Agreement shall be deemed to include all Exhibits, Addenda
and Statements of Work issued hereunder.
32. RULES OF INTERPRETATION.
Headings in this Agreement are for convenience of reference only and shall
not affect the interpretation or construction hereof. Unless otherwise
specified, (i) the terms "hereof", "herein" and similar terms refer to this
Agreement as a whole and (ii) references herein to "Sections" and
"subsections" refer to parts, sections or subsections of this Agreement.
[remainder of this page left blank]
25
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
Genuity Inc. GTE Service Corporation
By:______________________________ By:_________________________________
Name:____________________________ Name:_______________________________
Title:___________________________ Title:______________________________
Date:____________________________ Date:_______________________________
26
