EXHIBIT 10.41
-------------
COOPERATIVE AGREEMENT
This Agreement is by and between the University of Massachusetts at Lowell
(hereinafter referred to as the (University) and Boston Communications Group,
Inc. (hereinafter BCG), having a business address at 000 Xxxxxx Xxxx, Xxxxxx,
XX. 00000.
WHEREAS, the University and BCG are mutually interested in and desire to
cooperate in conducting an educational program focusing on the communications
industry; and
WHEREAS, the University shall furnish students to closely participate with
BCG in carrying out the activities herein contemplated.
NOW, THEREFORE, University in consideration of the above premises and in
the interest of attaining common objectives, establishes the BCG/University
Student Communications Collaborative: A Pilot Program (hereinafter referred to
as the Project), and the parties hereto desire to cooperate and mutually agree
as follows:
1. REFERENCE DATA:
---------------
Date of Agreement:
Mailing Address of University:
Xxxxxx X. Xxxxxxx
Director, Grants & Contracts
University of Massachusetts Xxxxxx
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Mailing Address of BCG:
Boston Communications Group
000 Xxxxxx Xxxx
Xxxxxx, XXX 00000
Xxxx of Agreement:
Three years from the Commencement Date, revocable as
provided herein. Agreement shall be automatically extended
for additional one (1) year terms unless either party gives
written notice to the other of its option not to renew at
least sixty (60) days prior to the end of a given term.
1
2. LOCATION
--------
Program shall be housed in University's facilities located at 000 Xxxxxxx
Xxxxxx, Xxxxx Xxxxx Xxxxx, Xxxxxx, XX, 00000, hereinafter referred to as Space).
3. PURPOSE AND USE
---------------
The rights of BCG under this agreement shall be exercised solely for the
purposes described in Appendix A.
4. ALLOWABLE COSTS AND PAYMENT
---------------------------
Sponsor Contributions
---------------------
BCG shall contribute to the Project the financial support, equipment,
personnel, technology and other resources listed in Appendix A.
Indirect Costs/Overhead
-----------------------
The periods for which final negotiated overhead rates shall be established
pursuant to this Agreement are as follows:
Execution through 06/30/99 - 48% of Modified Total Direct Cost (MTDC) . For
the purpose of this agreement, MTDC is defined as total direct costs
excluding capital expenditures, subawards in excess of $25,000, student
tuition and student support costs.
07/01/99 until amended - University agrees to an upper limit cap of 50.5%
of MTDC and a lower limit cap of 45.6% of MTDC predicated upon the outcome
of indirect cost rate negotiation with the Department of Health and Human
Services.
Payments
--------
Payments under this Agreement shall be made by BCG to University on a cost
reimbursement basis. BCG will compensate the University for the performance of
services not to exceed the amounts in Appendix A. Invoices should be sent to:
Boston Communications Group
000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Payment shall be made within thirty (30) days after receipt of invoices
from the University.
5. CONDITION OF SPACE
------------------
BCG acknowledges and agrees that it accepts the Space in as is condition,
that University is under no obligation to make any
2
repairs, renovations, or alterations to the Space, and that University has made
no representations or warranties regarding the fitness of the Space for BCG's
intended purpose or use.
Except as expressly provided in the terms of this Agreement, BCG shall make
no alterations or improvements to the Space without University's written
consent. The Space shall be surrendered to University on the date of revocation
or termination of this Agreement in the same condition as on the date of this
Agreement (reasonable wear and tear excepted)
6. IMPROVEMENTS: MAINTENANCE
-------------------------
(a) BCG, at its sole option and expense, shall have the right to make
improvement (the Improvements) in connection with the upgrade of the Space. The
Improvements shall be the sole property of the University, and except as
expressly provided herein, shall not be subject to the provisions of the
Agreement.
(b) BCG shall at all times, at its own expense, keep the space in
suitable condition for the purposes for which it is being used, reasonable wear
and tear excepted.
7. TERM
----
The term of this Agreement shall be three years. The term of the Agreement
shall commence on the date of execution of this lease and shall expire 1095 days
thereafter unless otherwise terminated earlier in accordance with the terms of
this Agreement.
The term of this Agreement may be extended on the following terms, subject
to the prior written approval of the University:
Either party may extend this Agreement for an additional one year. BCG's
right to extend the expiration date shall in all events be subject to
University's right to revoke this Agreement as set forth herein.
8. PERMITS
-------
This agreement and all obligations hereunder are specifically dependent
upon the issuance to the BCG of all permits and Agreements required to operate
and use the Space for the purposes described in this Agreement from those
governmental agencies having jurisdiction. it shall be the responsibility of BCG
to obtain any such permits or Agreements, at BCG's sole cost and expense. In the
event BCG is refused such permit or Agreement, this agreement shall be null and
void with no further obligation by either party to perform. If any such permit
or
3
Agreement is revoked or canceled during the term of this Agreement, it shall be
cause for terminating this Agreement immediately as set forth in Section 17(c)
hereof.
9. ALTERATION OF THE SPACE
-----------------------
BCG shall make no alterations or improvements upon the Space except as may
be specifically permitted in Section 6. Any alterations or improvements made by
BCG shall be made in accordance with the terms and conditions established by
University, which may include prior approval of plans, insurance coverage, and a
requirement that BCG remove any or all of its alterations or improvements upon
the expiration or earlier termination of this Agreement. The BCG shall not
permit any liens, mortgages or other security interests for the repayment of
monies or value given to be attached to the Space in connection with any repairs
or improvements to the Space. In any event, this Agreement does not for any
purpose constitute the granting of an interest in real property and BCG shall
not have any right to make any permanent improvements to, or to install any
permanent fixtures on, the Space except as specifically provided herein.
10. BCG's SPACE
-----------
BCG may bring such vehicles and other equipment upon the Space as should
ordinarily be used to operate and use the Space for the purposes permitted by
this Agreement, subject, however, to the following limitations: NONE.
11. UTILITIES AND SERVICES
----------------------
University shall provide only the specific services, utilities, and
facilities for the Space during the terra of this Agreement as outlined in
Appendix D. No other services, utilities, facilities or supplies shall be
provided to BCG except as specifically provided herein, and any such services,
utilities, facilities or supplies provided under this Agreement, shall be for
the sole use of BCG and its subcontractors, if any. If University is prevented
or delayed from providing any such services, utilities, facilities, or
performing any other obligation under this Agreement, by reason of any cause
reasonably beyond University's control, then University shall not be liable to
BCG therefor.
12. CONDUCT OF BCG
--------------
Compliance with Laws
--------------------
BCG shall at all times operate the Space in accordance with all applicable
laws, statutes, ordinances, regulations, permits, Agreements, and requirements
of its insurance policies.
4
Repair of Damage
----------------
BCG shall neither cause nor suffer any waste of the Space and shall
maintain the space in good order at all times. The BCG's responsibilities shall
include, but not be limited to, the repair of any and all damage or breakage
resulting from acts of vandalism or the intentional or negligent acts of the BCG
or others, but excluding damage or breakage caused by employees, agents or
invitees of the University. All repairs made by BCG shall be performed in a
manner satisfactory to University in its reasonable judgment. University shall
have the option to make such repairs for the account of BCG, in which event BCG
shall reimburse University for any and all costs reasonably incurred by
University to make such repairs. Payment shall he made by BCG within ten (10)
business days after written demand by University.
Security
--------
Accept as provided herein, BCG shall be responsible for providing, at its
sole cost and expense, such security protection or services as University may
reasonably require to protect the Space and BCG's invitees from injury or
damage.
Hazardous Materials
-------------------
Without limiting any of BCG's obligations under this or any other Section
of this Agreement, BCG agrees that it shall not cause any hazardous materials to
be used, generated, stored or disposed of on, under or about, or transported to
or from the Space. For the purposes of this Agreement, "hazardous materials"
shall include but not be limited to substance defined as "hazardous substances",
"toxic substances", "hazardous wastes", "hazardous materials", or "oil?, in any
federal or state statute concerning hazardous materials now or hereafter
enacted, including all regulations adopted or publications promulgated
thereunder.
Surrender of Space
------------------
Upon the expiration or earlier terminate on of this Agreement, BCG shall
immediately vacate and surrender the Space to University, the BCG shall have no
further rights in or access to the Space except as provided herein. BCG shall
also remove all of its property from the Space and restore the Space to the
condition the Space was in at the commencement of this Agreement, reasonable
wear and tear excepted, and, subject further, to any obligation BCG may have
hereunder to make repairs or improvements to the Space. Upon agreement of the
parties, BCG may abandon all or part of its property in place and be responsible
for ensuring that any and all structure, appurtenances, and other physical
materials brought onto Space under this Agreement will be removed within forty-
five days when and if this agreement were terminated. In the event any of BCG's
personal property remains on the Space after the expiration or earlier
termination of this
5
Agreement without a written agreement between the parties, said property shall
be deemed abandoned and may be retained by University without any compensation
to BCG, or may be removed and either stored or disposed of by University at the
sole cost and expense of BCG.
BCG waives any statutory notice(s) and other legal process(es) relating to
tenancies and acknowledges that BCG has no property or possessory rights in and
to the Space, except for a revocable Agreement for the temporary use of the
Space.
13. INDEMNIFICATION AND LIABILITY
-----------------------------
BCG accepts complete responsibility for the acts, omissions and negligence
of the BCG and its officers, agents, contractors, employees, and invitees while
using the Space or while exercising BCG's rights hereunder. The BCG shall
indemnify the University and the Commonwealth of Massachusetts and save them
harmless from and against any and all claims, actions, damages, liability, or
expenses including attorneys, or other professional fees reasonably incurred in
connection with loss of life, personal injury or damage to or loss of property
arising out of any act, failure to act, or negligence of the BCG, its officers,
agents, contractors, employees or invitees.
The obligations of University shall not be binding on any trustees,
officers or employees of University or of any successor, individually. In no
event shall University, or its successors, be liable for any indirect or
consequential damages.
14. RISK OF LOSS
------------
BCG agrees that it shall use the Space at its own risk, and the University
shall not be liable to BCG for any loss or damage to equipment, fixtures, or
other personal property of the BCG that are installed upon the Space. Without
limiting the foregoing, University shall have no liability to BCG for any
injury, loss or damage caused by any act of BCG's invitees or members of the
general public.
15. INSURANCE
---------
The BCG shall keep in force, at its sole cost and expense, during the full
term of this Agreement, and during such other times as BCG occupies the Space or
any part thereof, the following insurance policies:
Comprehensive general liability insurance insuring the BCG against claims and
demands for personal injury or damage to property which may be claimed to have
occurred upon or about
6
the Space. Said insurance shall be written on an occurrence basis to afford
protection in the amount of one million dollars ($1,000,000) combined single
limit for personal and bodily injury and death and for property damage. Said
insurance policy or policies, as evidence by a certificate of insurance, shall
name the Commonwealth of Massachusetts as an additional Insured and shall
contain a provision stating that such coverage shall not be canceled without at
least ten (10) days prior written notice to the University.
Workers Compensation insurance covering BCG's employees upon the Space in
such amounts as are required by law.
Such other types of insurance and in such amounts as University may, from
time to time, require in its reasonable judgment.
One or more certificates of insurance showing insurance coverage as
-------------------------------------------------------------------
required by this Section 15 are attached to this Agreement as Appendix C.
------------------------------------------------------------------------
The insurance coverage required by this Section shall be by standard
policies, obtained from financially sound and responsible insurance companies
authorized to do business in Massachusetts. In the event BCG fails to obtain any
of the insurance coverage required by this section, or if any of the required
insurance policies are canceled, it shall be grounds for immediate termination
of this Agreement as provided in Section 18(c) of this agreement.
16. ASSIGNMENT
----------
BCG's rights under this Agreement are for the benefit only of the BCG named
herein. The BCG shall not sell, assign, sublet, mortgage or transfer any
interest in this Agreement and shall not permit any, other party to use the
Space, without obtaining, in each instance, the prior written consent of
University, which consent may be withheld for any reason or for no reason, or
granted upon such conditions as University shall determine, all in its sole
discretion.
17. RIGHTS OF UNIVERSITY AND AGENCY TO ENTER
----------------------------------------
The University reserves the right and the BCG shall permit the University
or other representatives of the Commonwealth of Massachusetts, or their agents,
to enter BCG's premise at any time to make repairs, perform maintenance, inspect
the Space, show the Space to others, or monitor compliance with this Agreement,
or for any other reason consistent with the intent of this Agreement or with
applicable law.
7
18. TERMINATION
-----------
This Agreement shall expire on the date specified in Section 6, unless
------
extended in compliance with the terms of this Agreement and all other
requirements of law, or unless terminated earlier under the following
conditions:
A. Without Cause. Either BCG or University may terminate this Agreement by
-------------
giving written notice to the other party at least sixty (60) calendar days prior
to the effective date of termination stated in the notice.
B. For Cause. In the event that either party commits a breach of its
---------
obligations under this Agreement and fails to cure that breach within sixty
(60)days after receiving written notice thereof, the other party may terminate
this Agreement immediately upon written notice to the party in breach. If the
alleged breach involves nonpayment of any amounts due University under this
Agreement, BCG shall have only one opportunity to cure a material breach from
which it receives notice as described above; any subsequent material breach by
BCG will entitle University to terminate this Agreement immediately upon written
notice to BCG, without the sixty-day cure period.
C. Emergency. In the event the University determines that it is necessary to
---------
terminate this Agreement or suspend BCG's rights hereunder immediately in order
to prevent permanent or serious injury or damage to persons or property,
University may terminate this Agreement or suspend BCG's rights hereunder by
providing written notice to BCG stating the grounds for said termination or
suspension. Said notice may be given in the form of a telegram, mailgram, hand-
carried letter, or other reasonable written means, and this Agreement shall be
terminated or suspended, as the case may be, upon delivery of said notice to
BCG. University shall exercise its rights hereunder through a suspension rather
than a termination whenever practicable.
In the event this agreement is terminated in accordance with any of the
provisions of this Section 18, this Agreement shall come to an end as fully and
completely as it the term had expired on the date set forth in Section 7, and
BCG shall vacate and surrender the Space as provided in Section 11.
In the event this Agreement is terminated by University in accordance with
any of the provisions of this Section. BCG shall not be relieved of liability to
University for arrears in the Agreement fees or for any other injury or damage
sustained by University as a result of a breach of BCG of any of the terms or
conditions of this Agreement, whether occurring before or after such
termination. BCG expressly waives any right to damages related to such
termination,
8
including incidental or consequential damages.
19. NO ESTATE CREATED
--------------
This Agreement shall not be construed as creating or vesting in BCG any
estate in the Space, but only the limited right of use as herein described, and
BCG shall have no right to require specific performance of the obligation of
University hereunder.
20. NON-DISCRIMINATION
------------------
BCG shall not discriminate against any qualified employee, applicant for
employment, subcontractor, or person or firm seeking to provide goods or
services to BCG. nor shall BCG deny any person access to the Space or to any
activities or programs carried out pursuant to this Agreement because of race,
color, national origin, ancestry, age, sex, religion, physical or mental
handicap, or sexual orientation. The BCG shall comply with all applicable
federal and state statutes, rules, and regulations prohibiting discrimination in
employment.
21. NOTICE
------
All notices or other communications required or permitted to be given under
this Agreement shall, unless otherwise expressly permitted hereunder, be in
writing signed by a duly authorized representative of the party giving the
notice and shall be given by hand delivery (including, without limitation,
courier, Federal Express, or other overnight delivery service) or mailed by
United States certified mail, postage prepaid, return receipt requested. Such
notices shall be sent or addressed to University and BCG at the addresses set
forth in Section 1.
22. PUBLICITY RESTRICTIONS.
----------------------
Neither party shall use the name of the other party or any of its trustees,
officers, faculty, students, employees, or agents, or any adaptation of such
names, or any terms of this Agreement in any promotional material or other
public announcement or disclosure without the prior written consent of the other
party.
9
23. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts irrespective of any conflicts of law
principles.
24. Non-Competition
---------------
University agrees not to support any efforts in the telecommunications
field that are the same in scope as those defined in Appendix A during the term
of this Agreement.
25. Tax-Exempt Status
-----------------
BCG acknowledges that University, as a public institution of the
Commonwealth of Massachusetts, holds the status of an exempt organization under
the United States Internal Revenue Code. BCG also acknowledges that certain
facilities in which the Project may be performed were financed through offerings
of tax-exempt bonds. If the Internal Revenue Service determines, or if counsel
to University reasonably determines, that any event of this Agreement
jeopardizes the tax-exempt status of University or the bonds used to finance
University facilities, the relevant term shall be deemed an invalid provision
and modified by the parties.
26. MISCELLANEOUS PROVISIONS
------------------------
This Agreement may not be modified except in writing, duly executed by both
parties.
The BCG, its employees, officers or agents, are not authorized to bind or
involve the University or the Commonwealth of Massachusetts in any contract or
to incur any liability for or on the part of the University or the Commonwealth
of Massachusetts.
If any portion of this Agreement is declared to be illegal, unenforceable
or void, then all parties to this Agreement shall be relieved of all obligations
under that portion; provided, however, that the remainder of this agreement
shall be enforced to the fullest extent permitted by law.
No consent or waiver, whether express or implied, by either party to or of
any breach of the terms of this Agreement by the other party shall be construed
as a consent or waiver to or of any other breach. No waiver of any breach or
default or other indulgence shall be effective unless expressed in writing by
the waiving party.
10
The captions in this Agreement are inserted for convenience of reference
only and in no way define, describe or limit the scope or intent of this
Agreement or any of the provisions hereof.
No official, employee or consultant of the Commonwealth of Massachusetts
shall be personally liable to BCG or to any person claiming under or through BCG
for or on account of any alleged breach of this Agreement, or for any act,
failure to act or other matter arising out of the execution of this Agreement or
the performance of University's obligations hereunder.
No provision of this Agreement shall be deemed to have been waived by
either party unless such waiver is in writing and is signed by the party to be
charged.
Institution will use its best efforts to conduct the program as generally
set out in the Project. Any changes in the Project will be made only upon mutual
agreement of the parties and will be evidenced by a written agreement executed
by both parties.
The following attachments are made a part of this Agreement for all
purposes:
Appendix A Statement of Work/Objectives
Appendix B University contribution
Appendix C Insurance Certificates
AGREED AND ACCEPTED
Boston Communications Group:
----------------------------
/s/ Xxxxx xxx Xxxxxx C.F.O.
--------------------------------------------------------------
Authorized Signature Title
Xxxxx xxx Xxxxxx 2/9/98
-----------------------------------------------------------
Print Name Date
University of Massachusetts Xxxxxx
----------------------------------
/s/ Xxxxx X. Xxxxxxxx Director - EF,TT P
-----------------------------------------------------------------
Authorized Signature Title
Xxxxx Xxxxxxxx 2/9/98
-----------------------------------------------------------
Print Name Date
11
APPENDIX A
STATEMENT OF WORK/OBJECTIVES
PURPOSE AND USE
---------------
Boston Communications Group (?BCG?) intends to locate a remote call center on
the campus of the University of Massachusetts at Lowell (?University?) for the
purpose of performing certain business activities in conjunction with providing
jobs for students and conducting educational programs focusing on the
communications industry.
BOSTON COMMUNICATIONS GROUP RESPONSIBILITIES
--------------------------------------------
1. Provide technology and expertise in the delivery of calls to the University
location.
2. Provide on-site management of call center operations.
3. Provide on-site training of students.
4. Interview and select qualified candidates.
5. Provide jobs for approximately 200 students with shifts of 16-20 hours per
week during school sessions and 40 hour weekly shifts during vacation periods
and summer break.
6.A Pay to University, as payment in full for the Project, compensation at a
rate of $10.00 per hour for each hour worked by students participating in the
Project, plus Overhead as defined in Section 4 of this Agreement (the costs
included in Modified Total Direct Cost being listed in the attached Schedule of
Costs); or
6.B If a participating student so elects, BCG will pay to the University
compensation at a rate of $9.00 per hour for each hour worked by such student
(plus Overhead as defined in Section 4 of this Agreement); and at the beginning
of each subsequent semester, for each such student employed six months or longer
BCG will pay up to $1,000 to the University for student scholarships, subject to
terms and conditions to be mutually determined by University and XXX.
00
XXXXXXXX X
UNIVERSITY CONTRIBUTIONS
UNIVERSITY OF MASSACHUSETTS XXXXXX RESPONSIBILITIES
----------------------------------------------------
1. Recruit and pre-screen approximately 200 students for employment with the
Project, subject to interview and selection by BCG. In the event that
University is unable to provide 200 students, BCG shall have the right to staff
with non-students, provided, however, that BCG relocates non-students as
acceptable students are identified.
2. Employ all students participating in the Project, pay wages and withhold
taxes for all such employees, in accordance with all applicable laws and
regulations.
3. Provide approximately 9,000 square feet of space (consisting of the entire
Third Floor North at 000 Xxxxxxx Xxxxxx) including utilities (consisting of
electricity, water & sewer, heating and air conditioning, but excluding cleaning
services). The compensation for this is included in the overhead expense paid
by BCG. The University may provide additional space in the same building, if
required, to meet the needs of the Project as defined in Appendix A.
4. Allow BCG to locate other BCG employees at the Project location, as may be
needed for the conduct of the Project as defined in Appendix A.
5. Any other use of Project facilities will require the prior, written
approval of the University and may also require the execution of a Sponsored
Research Agreement.
13
