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Confidential Treatment Request
EXHIBIT 10.8
[ ] Material indicated by this xxxx has been
deleted pursuant to a request for confidential
treatment, and has been filed separately.
SERVICES AGREEMENT NO. PR-9026-L
BETWEEN
SCC COMMUNICATIONS CORP.
AND
BELLSOUTH TELECOMMUNICATIONS, INC.
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TABLE OF CONTENTS
SECTION NAME PAGE NUMBER
------------ -----------
SECTION 1. AFFILIATED COMPANIES 1
SECTION 2. TERM OF AGREEMENT 1
SECTION 3. EMERGENCY SERVICES 4
SECTION 4. TERMS OF PAYMENT 4
SECTION 5. PAYMENT AND RECORDS 4
SECTION 6. INVOICING 5
SECTION 7. REPRESENTATIVES 5
SECTION 8. REPORTS 5
SECTION 9. RECORDS AND AUDITS 6
SECTION 10. BUYER'S INFORMATION 6
SECTION 11. SELLER'S INFORMATION 7
SECTION 12. PATENT AND OTHER PROPRIETARY
RIGHTS INFRINGEMENT 7
SECTION 13. TAX 7
SECTION 14. ASSIGNMENT BY SELLER 8
SECTION 15. ASSIGNMENT BY BUYER 9
SECTION 16. LICENSES 9
SECTION 17. SUPPLIER OVERDEPENDENCY 9
SECTION 18. WARRANTY FOR EMERGENCY SERVICES 10
SECTION 19. NON-EXCLUSIVE RIGHTS 10
SECTION 20. PUBLICITY 10
SECTION 21. PERFORMANCE OF WORK 10
SECTION 22. INDEPENDENT CONTRACTOR 11
SECTION 23. SECURITY 11
SECTION 24. NONDISCRIMINATION COMPLIANCE 12
SECTION 25. CONFLICT OF XXXXXXXX 00
XXXXXXX 00. CHOICE OF LAW/VENUE 13
SECTION 27. FACILITY RULES AND GOVERNMENT CLEARANCE 14
SECTION 28. RIGHT OF ACCESS 14
SECTION 29. XXXXXXX 00
XXXXXXX 00. COMPLIANCE WITH LAWS 14
SECTION 31. RELEASES VOID 15
SECTION 32. NON-WAIVER 15
SECTION 33. SEVERABILITY 15
SECTION 34. CONTINGENCY 15
SECTION 35. INSURANCE 16
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TABLE OF CONTENTS
SECTION NAME PAGE NUMBER
------------ -----------
SECTION 36. INDEMNITY 16
SECTION 37. SURVIVAL OF OBLIGATIONS 18
SECTION 38. NOTICES 18
SECTION 39. SECTION HEADINGS 19
SECTION 40. INCORPORATION BY REFERENCE 20
SECTION 41. ENTIRE AGREEMENT 20
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This agreement (hereinafter "Agreement") is made by and between
BELLSOUTH TELECOMMUNICATIONS, INC., a Georgia corporation,
(hereinafter "Buyer"), and SCC COMMUNICATIONS CORP., a Delaware
corporation, (hereinafter "Seller").
Whereas desirous of obtaining advice and assistance for
E9-1-1 associated consultant, professional, or database management
services (the "Emergency Services") to be provided by Seller which has
sufficient expertise and experience in rendering such Emergency
Services to meet the particular needs of Buyer. The scope of this
agreement does not include software and/or software products
acquisition or software development.
NOW, THEREFORE, Buyer and Seller enter into this Agreement on the
following terms and conditions.
SECTION 1. AFFILIATED COMPANIES
1.01 An Affiliated Company is defined herein as BellSouth corporation
or any company that is owned in whole or in part by BellSouth
Corporation or by one or more of its direct or indirect
subsidiaries. Any Affiliated Company may place orders under
this Agreement to buy Emergency Services as hereinafter defined.
All references to "Buyer" in this Agreement shall be deemed to
include the Affiliated Company placing the order. Such orders
are subject to the terms and conditions of this Agreement and as
to such orders, the Affiliated Company becomes "Buyer"
hereunder. Each order shall constitute a separate, distinct and
independent contract between Seller and the Buyer placing the
order and each Buyer shall be the sole obligor with regard to
meeting the obligations of any order placed by such Buyer.
SECTION 2. TERM OF AGREEMENT
2.01 The term of this Agreement shall commence on August 1, 1995, and
shall, except as otherwise provided herein, continue in effect
thereafter through July 31, 2005, inclusive.
2.02 This Agreement contemplates the future execution by Buyer and
Seller of one or more written Letter Purchase Orders. Each
Letter Purchase Order shall be executed by both parties and
shall contain at a minimum the information specified in this
Agreement. All transactions between Buyer and Seller during the
term of this Agreement shall be covered by this Agreement and
any applicable Letter Purchase Order unless the parties agree
otherwise in writing.
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2.03 Each properly executed Letter Purchase Order shall be deemed,
upon its execution, to be incorporated into this Agreement. If
the Letter Purchase Order conflicts with the terms and
conditions of this Agreement, the terms and conditions of this
Agreement shall control unless otherwise agreed to under a
"Special Considerations" section of the Letter Purchase Order.
2.04 Seller will furnish Emergency Services to Buyer as specified in
Letter Purchase Orders. Said Orders, at a minimum, shall
specify the information outlined below:
2.04.1 A reference to this Agreement.
2.04.2 A detailed description of the Emergency Services to be performed
by Seller.
2.04.3 A statement defining all deliverables and their associated due
dates.
2.04.4 For each project identified in a Letter Purchase Order, Buyer
and Seller shall each designate an individual, (the "Project
Manager"), who will act as the primary interface between the
parties. The Project Managers shall be responsible for
insuring the continuity of communications between the parties
as the project proceeds. Each Letter Purchase order shall
include the address and telephone number of each Project
Manager.
2.04.5 An enumeration of any items of expense authorized for
reimbursement to Seller, as well as the basis for such
reimbursement.
2.04.6 If for consultant and/or professional services only, the Letter
Purchase Order should state the maximum total expenditure
authorized, which is understood to mean (1) a dollar amount or
time limit beyond which Seller may not invoice for consultant
and/or professional services under the specific Letter Purchase
Order, and (2) a dollar amount or time limit beyond which Seller
is not required to expend effort or provide consultant and/or
professional services under a specific Letter Purchase Order
without prior written agreement to a revised amount. When this
specification of a maximum total expenditure is not
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feasible, at the Buyer's option, the hourly, daily or unit rate
of Seller may be substituted.
2.04.7 A statement defining the commencement and completion dates for
Emergency Services to be performed.
2.04.8 Invoicing instructions.
2.04.9 Signatures of representatives authorized by Buyer and Seller to
execute the Letter Purchase Order.
2.04.10 Specifications for the Emergency Services to be provided as it
applies to Section 18. "WARRANTY FOR EMERGENCY SERVICES".
2.05 The terms by which either party may terminate an individual
Letter Purchase order shall be stated in the Letter Purchase
Order. The completion of Emergency Services identified in each
Letter Purchase Order which is being terminated shall also be
stated in the Letter Purchase Order.
2.06 The specifications for the Emergency Services to be provided.
2.07 Buyer, without prejudice to any right or remedy on account of
any failure of Seller to perform its obligations under this
Agreement, may at any time terminate the performance of the work
under any Letter Purchase Order, in whole or in part, by written
notice to Seller specifying the extent to which the performance
of the work is terminated and the date upon which such
termination becomes effective. In the event of such
termination, other than for the failure of Seller to perform its
obligations under this Agreement, Seller shall be entitled to
payment for Emergency Services rendered prior to the effective
date of termination and for expenses properly reimbursable under
this Agreement; provided, however, that payment of any such
amounts by Buyer shall be subject to any provision for the limit
of expenditures set forth in the Letter Purchase Order. The
payment of such amounts by Buyer shall be in full settlement of
any and all claims of Seller of every description, including
profit.
2.08 In the event of termination of this Agreement or any Letter
Purchase Order issued hereunder, affected Buyer property and
work in Seller's possession shall be forwarded promptly to
Buyer. Any transfer of ownership of property acquired by Seller
to perform the requirements identified in a Letter Purchase
Order will be addressed in the Letter Purchase Order.
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SECTION 3. EMERGENCY SERVICES
3.01 "Emergency Services" as used herein shall mean Seller's
consultant and or professional services as described in properly
executed Letter Purchase Orders. Such Emergency Services may
include the furnishing by Seller of tangible goods as a part of
Seller's deliverable hereunder.
SECTION 4. TERMS OF PAYMENT
4.01 Net 30 days
SECTION 5. PAYMENT AND RECORDS
5.01 Buyer shall pay Seller for Emergency Services under this
Agreement in accordance with prices and/or rates, whichever is
applicable, to be specified in Letter Purchase Orders issued
hereunder. If work is performed on Buyer's premises, Seller's
working hours when working on Buyer's premises, in conjunction
with any Letter Purchase Order, shall coincide with the Buyer's
working hours as they may be established from time to time
unless otherwise defined in the Letter Purchase Order.
5.02 When required, Buyer shall furnish Seller with information
relative to Buyer's applicable standards and specifications, all
of which is subject to Section 10 entitled " BUYER'S INFORMATION"
and is to be returned to Buyer at the expiration, cancellation
or termination of the Agreement or Letter Purchase Order, as the
case may be. All information furnished by Buyer to Seller, or
obtained by Seller hereunder or in contemplation hereof, shall
remain Buyer's property. Should Buyer desire to alter such
standards or specifications with respect to any Letter Purchase
Order after such Letter Purchase Order has been issued and
accepted, Seller shall advise Buyer in the event adjustment of
the payment rate or time schedule referred to in the original
Letter Purchase Order
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is necessitated by such alterations. In the event such
adjustment is acceptable to Buyer, Buyer shall issue a new or
revised Letter Purchase Order.
5.03 If computer machine time is required in the performance of any
Emergency Services and a charge for such use will be billed to
Buyer, prior written approval of such arrangements shall be
obtained from Buyer.
SECTION 6. INVOICING
6.01 Invoices shall reference Letter Purchase order number and this
Agreement number, PR-9026-A.
SECTION 7. REPRESENTATIVES
7.01 Emergency Services performed under this Agreement are subject to
contract administration activities by Buyer's Representative(s).
Such activities include, but are not limited to, monitoring
supplier performance, Agreement interpretation and amendment,
maintenance of Agreement information in Buyer's database,
inspecting and accepting work performed, verifying work
completion, and validating charges rendered on Seller's
invoices. All Emergency Services provided by Seller under this
Agreement are subject to such activities. In addition to or in
lieu of Buyer's Representative, contract administration
activities may be performed by the individual(s) designated as
Buyer's Delegate, or others as may be delegated by Buyer in
writing.
7.02 Buyer's Representative and Alternate shall be the Contract
Administrator and Buyer's Project Manager listed in Item 3 of
each individual Letter Purchase Order.
SECTION 8. REPORTS
8.01 Seller shall render annual reports detailing Buyer's total
expenditures under this Agreement on or before the tenth (10)
working day after the anniversary of the effective date of this
Agreement. Annual reports shall be submitted to the following:
BellSouth Telecommunications, Inc.
Senior Contracting Manager
Procurement Services
38P40 Southern Xxxx Center
000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
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SECTION 9. RECORDS AND AUDITS
9.01 Seller shall maintain complete and accurate records of all
amounts billable to and payments made by Buyer under each Letter
Purchase Order in accordance with generally accepted accounting
practices. Seller shall retain such records for a period of
three (3) years from the date of final payment for Emergency
Services covered by each Letter Purchase Order. Seller agrees
to provide reasonable supporting documentation concerning any
disputed amount of invoice to Buyer within thirty (30) days
after Buyer provides written notification of the dispute to
Seller.
9.02 Buyer and its authorized agents and representatives shall have
the right to audit such records of Seller during the respective
periods in which Seller is required to maintain such records,
including, without limitation, the right of access to such
records on Seller's premises, rights to inspect and photocopy
same, and the right to retain copies of such records outside of
Seller's premises with appropriate safeguards, if such retention
is deemed necessary by Buyer, in its sole discretion. The
correctness of Seller's billing shall be determined from the
result of such audits. Buyer shall also have such above
described auditing rights with respect to Seller's agents,
contractors, or subcontractors.
10. BUYER'S INFORMATION
10.01 All Buyer's Specifications, drawings, sketches, schematics,
models, samples, tools, computer or other apparatus programs,
technical or business information or data, written, oral, or
otherwise (all hereinafter designated "Buyer's Information")
obtained by Seller hereunder or in contemplation hereof shall
remain Buyer's property. All copies of such Buyer's Information
in written, graphic, or other tangible form shall be returned to
Buyer upon request. Unless such Buyer's Information was
previously known to Seller free of any obligation to keep it
confidential or has been or is subsequently made public by Buyer
or, lawfully, a third party, it shall be kept confidential by
Seller, shall be used only in the filling of Letter Purchase
Orders or in performing under this Agreement, and may not be
used for other purposes except upon such terms as may be agreed
upon between Buyer and Seller in writing.
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SECTION 11. SELLER'S INFORMATION
11.01 Unless marked as such, no Seller's Specifications, drawings,
sketches, schematics, models, samples, tools, computer programs,
technical or business information or data, written, oral or
otherwise (hereinafter "Seller's Information"), furnished by
Seller to Buyer under this Agreement, or in contemplation of
this Agreement, shall be considered by Seller to be confidential
or proprietary.
SECTION 12. PATENT AND OTHER PROPRIETARY RIGHTS INFRINGEMENT
12.01 Seller shall indemnify Buyer for any loss, damage, expense or
liability including reasonable costs and attorneys' fees that
may result by reason of any infringement, or claim of
infringement, of any patent, trademark, copyright, trade
secret or other proprietary interest based upon the
manufacture, use or resale of any material, Emergency Services
furnished to Buyer under this Agreement or in contemplation of
this Agreement. Seller shall defend or settle, at its own
expense, any action or suit against Buyer for which it is
responsible under this Section. Buyer shall notify Seller
promptly of any claim of infringement for which Seller is
responsible, and shall cooperate with Seller in every
reasonable way to facilitate the defense of any such claim.
SECTION 13. TAX
13.01 There shall be added to the purchase price set forth herein an
amount equal to any applicable taxes, local, state or federal,
however designated, which may be validly levied or based upon
this Agreement or upon the Emergency Services furnished
hereunder, excluding, however, ad valorem personal property
taxes, state and local privilege and excise taxes based on
gross revenue, taxes based on or measured by Seller's net
income, and any taxes or amounts in lieu thereof paid or
payable by Seller in respect of the foregoing excluded items.
Taxes payable by Buyer shall be billed as separate items on
Seller's invoices and shall not be included in Seller's
prices. Buyer shall have the right to have Seller contest
with the imposing jurisdiction, at Buyer's expense, any such
taxes that Buyer deems are improperly levied.
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13.02 Buyer shall not be required to pay or otherwise be liable or
responsible for, and Seller hereby indemnities, defends and
holds Buyer harmless against, any penalty, additional tax,
costs or interest that may be assessed or levied by any taxing
authority as a result of the failure of the Seller to file any
return, form, or information statement that may be required by
such taxing authority.
SECTION 14. ASSIGNMENT BY SELLER
14.01 Except for Seller's assignment to a third party acquiring all or
substantially all of Seller's assets or stock, or by merger of
Seller and a third party, Seller shall not assign or otherwise
delegate any work to be performed by it under this Agreement, in
whole or in part, or any of its right, interest or obligation
hereunder without first obtaining Buyer's prior written consent,
which consent shall not be unreasonably withheld. Seller shall
deliver to Buyer written notice of Seller's intent to assign, at
least thirty (30) days prior to assignment. Any assignment not
consented to by Buyer shall be deemed void; except that Seller
may assign its rights to receive monies pursuant to this
Agreement upon delivering the required notice to Buyer, without
Buyer's prior consent. No assignment of monies due or to become
due to Seller shall be made by Seller if such assignment
attempts to transfer to the assignee any other rights or
obligations of Seller hereunder or attempts to prevent Buyer
from dealing solely and directly with Seller on all matters
pertaining to this Agreement, including the negotiation of
amendments to this Agreement or the settlement of amounts due
either party by the other hereunder.
14.02 Seller agrees not to subcontract the Emergency Services to be
performed, in whole or in part, without written request to and
the prior written consent of Buyer's Project Manager designated
in individual Letter Purchase Orders. Seller shall remain
primarily liable to Buyer for the performance of all
subcontracted Emergency Services provided pursuant to this
Agreement.
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SECTION 15. ASSIGNMENT BY BUYER
15.01 Buyer shall have the right to assign this Agreement and to
assign its rights and delegate its duties under this Agreement
either in whole or in part, at any time and without Seller's
consent, to any present or future Affiliated Company or
successor company of Buyer. Buyer shall give Seller written
notice of such assignment or delegation. The assignment shall
neither affect nor diminish any rights or duties that Seller or
Buyer may then or thereafter have as to Emergency Services
ordered by Buyer prior to the effective date of the assignment.
Upon the written notice to the Seller, Buyer shall be released
and discharged, to the extent of the assignment, from all
further duties under this Agreement, except with respect to
Emergency Services ordered by Buyer prior to the effective date
of the assignment.
SECTION 16. LICENSES
16.01 Except as otherwise provided in this Agreement, no licenses
under any patents, copyrights, trademarks, trade secrets or any
other intellectual property, express or implied, are granted by
Buyer to Seller under this Agreement.
SECTION 17. SUPPLIER OVERDEPENDENCY
17.01 Because Buyer has no way of ascertaining Seller's dependency
on Buyer for revenues from sales in proportion to revenues
from Seller's other customers and in order to protect Buyer
from a situation in which Seller is over-dependent on Buyer
for said sales, Seller agrees to release and hold harmless
Buyer from any and all claims relating to Seller's financial
stability, which may result from Buyer's termination of this
Agreement for any reason whatsoever.
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SECTION 18. WARRANTY FOR EMERGENCY SERVICES
18.01 Seller warrants to Buyer that the Emergency Services provided
under this Agreement shall be in accordance with the
specifications set forth in each Letter Purchase order, and be
performed in a fully professional, effective, and efficient
manner that equals or exceeds the then-current industry
standard for such services. Buyer's Project Manager
designated in any Letter Purchase Order shall in his/her sole
discretion determine the quality and acceptability of the
Emergency Services performed pursuant to this Agreement.
SECTION 19. NON-EXCLUSIVE RIGHTS
19.01 It is expressly understood and agreed that this Agreement does
not grant Seller an exclusive privilege to sell to Buyer any
or all Emergency Services of the type described in Section 3
entitled "EMERGENCY SERVICES" which Buyer may require. Buyer
reserves the right to contract with other suppliers for the
procurement of comparable services. In addition, Buyer shall
determine, at Buyer's sole discretion, the extent to which
Buyer will market, advertise, promote, support, or otherwise
assist in further offerings of the Emergency Services.
SECTION 20. PUBLICITY
20.01 Seller agrees to submit to Buyer all advertising, sales
promotion, press releases, and other publicity matters
relating to this Agreement or mentioning or implying the trade
names, logos, trademarks or service marks (hereinafter
"Marks") of BellSouth Corporation and/or any of its Affiliated
Companies or language from which the connection of said Marks
therewith may be inferred or implied, or mentioning or
implying the names of any personnel of BellSouth Corporation
and/or any of its Affiliated Companies, and Seller further
agrees not to publish or use such advertising, sales
promotions, press releases, or publicity matters without
Buyer's prior written consent.
SECTION 21. PERFORMANCE OF WORK
21.01 All work performed by Seller under any Letter Purchase Order
may be monitored through the use of status reports. Contents
of such status reports,
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frequency and the Seller's employees required to submit such
status reports shall be specified in the Letter Purchase
Order.
21.02 Seller shall supply the appropriate personnel to investigate
any reported deficiencies found by Buyer during the duration
of the Letter Purchase Order. Deficiencies found to be of
Seller's causing shall be corrected by Seller at its expense.
Such correcting activities shall commence immediately and be
completed as quickly as is reasonably possible.
21.03 If the deficiencies are found to be not of Seller's causing,
Buyer shall reimburse Seller for the time and material charges
of (1) its investigation, and (2) such correcting activities
Seller performs, if requested by Buyer.
SECTION 22. INDEPENDENT CONTRACTOR
22.01 All work performed by Seller in connection with the Emergency
Services described in the Agreement shall be performed by
Seller as an independent contractor and not as the agent or
employee of Buyer. All persons furnished by Seller shall be
for all purposes solely the Seller's employees or agents and
shall not be deemed to be employees of Buyer for any purpose
whatsoever. Seller shall furnish, employ, and have exclusive
control of all persons to be engaged in performing Emergency
Services under this Agreement and shall prescribe and control
the means and methods of performing such Emergency Services by
providing adequate and proper supervision. Seller shall be
solely responsible for compliance with all rules, laws, and
regulations relating to employment of labor, hours of labor,
working conditions, payment of wages, and payment of taxes,
such as employment, Social Security, and other payroll taxes,
including applicable contributions from such person when
required by law. Seller shall not subcontract work to be
performed without Buyer's written permission.
SECTION 23. SECURITY
23.01 Buyer reserves the right to conduct, for security reasons, a
background investigation on the Seller and its principal
parties or personnel, and Seller agrees to cooperate with the
Buyer in this endeavor and to provide any necessary
information. Seller acknowledges that under no
obligation to provide a copy of the background investigation
to Seller, and Seller waives any and all rights it may have in
any information it provides to Buyer.
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23.02 Seller shall conduct, at Seller's expense, background
investigations on Seller's personnel performing work on
Buyer's premises prior to supplying such personnel to Buyer.
At Buyer's request, Seller shall provide copies of the
background investigations to Buyer.
23.03 Seller shall not assign any personnel with records of criminal
conviction(s) to Buyer's premises without advising Buyer of
the nature and gravity of the offense.
23.04 In fulfilling the obligations under this Section, both parties
shall comply with all laws, rules, and regulations relating to
the making of investigative reports and the disclosure of the
information contained therein. Each party shall indemnify,
defend, and hold the other party harmless against any wrongful
disclosure by the offending party, its employees, and/or agents
of said reports and the information contained therein.
23.05 At Buyer's request, Seller shall promptly remove from Buyer's
premises any employee of Seller to whom Buyer does not wish to
grant access to its premises, or who, in Buyer's opinion, has
been unacceptable, negligent, dishonest, or otherwise
unsatisfactory in performing his/her duties hereunder. Such a
request for removal from Buyer's premises shall in no way be
interpreted as a request by Buyer for Seller to discipline the
employee in any way.
SECTION 24. NONDISCRIMINATION COMPLIANCE
24.01 Seller agrees to comply with the applicable provisions of the
"NONDISCRIMINATION COMPLIANCE AGREEMENT" set forth in Appendix
A.
SECTION 25. CONFLICT OF INTEREST
25.01 Buyer and its affiliated companies do business with many
contractors and suppliers. It is a fundamental policy of
Buyer that such dealings shall be conducted on a fair and
non-discriminatory basis, free from improper influences, so
all participating contractors and suppliers may be considered
on the basis of the quality and overall cost of their product
or service.
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25.02 Buyer's policy is to seek out and obtain technically suitable
products and services at the lowest overall cost. Accordingly,
Buyer will not recognize any oral agreement; any conversations
with Buyer's employees or representatives shall not be construed
to imply a commitment or obligation on behalf of Buyer. Any
information disclosed or made known to Buyer shall be deemed as
public and nonproprietary. Information shall not be received in
confidence, unless a prior written agreement authorizing such
exchange of information has been executed by an authorized
representative of Buyer.
25.03 Buyer is committed to doing business with contractors and
suppliers in an atmosphere in keeping with the highest standards
of business ethics. Therefore, it is Buyer's policy that our
employees shall not accept from customers; from suppliers of
property, goods, or services; or from other persons any gifts,
benefits, or unusual hospitality that may in any way tend to
influence or have the appearance of influencing them in the
performance of their jobs.
25.04 Those employees of Buyer authorized to make purchases or
negotiate contracts are aware of this policy, and your
cooperation is solicited in order to forestall any embarrassing
situations.
SECTION 26. CHOICE OF LAW/VENUE
26.01 The validity, construction, interpretation, and performance of
this Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Georgia.
26.02 The jurisdictional venue for any legal proceedings involving
this Agreement shall be held in any applicable state or
federal court located in Xxxxxx County, State of Georgia.
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SECTION 27. FACILITY RULES AND GOVERNMENT CLEARANCE
27.01 Seller's employees and representatives and those of Buyer shall,
while on the premises of the other, comply with all internal
rules and regulations, including where required by Government
Regulations, submission of satisfactory clearance from the U. S.
Department of Defense and other federal authorities concerned.
SECTION 28. RIGHT OF ACCESS
28.01 Both Seller and Buyer shall permit reasonable access to the
other's facilities in connection with work hereunder. No
charge shall be made for such visits. It is agreed that prior
notification will be given when access is required. Seller
agrees to remove any of its employees at Buyer's request.
SECTION 29. DEFAULT
29.01 In the event Seller shall be in breach or default of any of the
terms, conditions, or covenants of this Agreement or any Letter
Purchase Orders, and such breach or default shall continue for a
period of thirty (30) days after the giving of written notice to
Seller thereof by Buyer, then in addition to all other rights
and remedies of law or equity or otherwise, Buyer shall have the
right to cancel this Agreement or any such Letter Purchase
Orders placed by Buyer without any charge, obligation, or
liability whatsoever, except as to the payment for Emergency
Services already received and accepted by Buyer.
SECTION 30. COMPLIANCE WITH LAWS
30.01 Seller shall comply with the provisions of all applicable
federal, state, county and local laws, ordinances,
regulations, and codes, including, but not limited to,
Seller's obligations as an employer with regard to the health,
safety and payment of its employees, and identification and
procurement of required permits, certificates, approvals, and
inspections of Seller's performance of this Agreement.
Notwithstanding of whether a specification is furnished, if
Emergency Services furnished are required to be registered in
a prescribed manner, Seller shall comply with federal law and
applicable state or local law. Seller shall indemnify Buyer
for, and defend Buyer against, any loss or damage sustained
because of Seller's noncompliance.
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SECTION 31. RELEASES VOID
31.01 Neither party shall require waivers or releases of any personal
rights from representatives of the other in connection with
visits to Seller's and Buyer's respective premises. Neither
party shall require any representative of the other party to
sign a personal "nondisclosure agreement." No such releases or
waivers shall be pleaded by Seller or Buyer or third persons in
any action or proceeding.
SECTION 32. NON-WAIVER
32.01 No waiver or failure to exercise any option, right or privilege
under the terms of this Agreement on any occasion or occasions
shall be construed to be a waiver of the same or any other
option, right, or privilege on any other occasion.
SECTION 33. SEVERABILITY
33.01 If any of the provisions of this Agreement shall be invalid or
unenforceable under the laws of the jurisdiction applicable to
the entire Agreement, such invalidity or unenforceability
shall not invalidate or render unenforceable the entire
Agreement but rather the entire Agreement shall be construed
as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of
Seller and Buyer shall be construed and enforced accordingly.
SECTION 34. CONTINGENCY
34.01 Neither Seller nor Buyer shall be held responsible for any delay
or failure in performance of any part of this Agreement to the
extent that such delay or failure is caused by fire, flood,
explosion, war, strike, embargo, government requirement, civil
or military authority, act of God, or other similar causes
beyond Seller's or Buyer's control (hereinafter "Condition(s)").
If any such Condition occurs, the party delayed or unable to
perform shall give immediate notice to the other party, and the
party affected by the other's delay or inability to perform may
elect to: (1) terminate this Agreement or part thereof as to
Emergency Services not already received; (2) suspend this
Agreement for the duration of the Condition, buy or sell
elsewhere material or services comparable to those to be
obtained under this Agreement, and deduct from any commitment
the quantity bought or for which commitments with other
suppliers have been made; or (3) resume performance of this
Agreement once the Condition ceases with an option in the
affected party to extend the period of this Agreement up to the
length of time the Condition endured. Unless written notice is
given within thirty (30) days after the affected party is
notified of the Condition, option 11(2)" shall be deemed
selected.
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SECTION 35. INSURANCE
35. 01 Seller, at Seller's expense, shall maintain during the term of
this Agreement, all insurance and/or bonds required by law or
this Agreement, including, but not limited to: (1) adequate
Worker's Compensation and related insurance as required by
Buyer and prescribed by the law of any state in which the work
is to be performed; (2) employer's liability insurance with
limits of at least $[ ] each occurrence; and (3)
commercial general liability insurance, including contractual
liability, products liability and completed operations
coverage, (4) professional liability insurance covering the
acts, errors and omissions of Seller, its employees, agents and
subcontractors, in an amount not less than $[ ] per
claim/$[ ] aggregate, and, if the use of motor vehicles
is required, comprehensive motor vehicle liability insurance,
each with limits of at least $[ ] for bodily injury,
including death, to any one person, and $[ ] on account
of any one occurrence and $[ ] for each occurrence of
property damage. Seller shall, prior to the start of work and
upon the renewal of each coverage required herein, furnish
certificates of insurance or adequate proof of the foregoing
insurance to the Buyer.
35.02 Seller shall also require its agents or subcontractors, if any,
who may enter upon Buyer's premises to maintain the insurance
coverage required herein, and to furnish Buyer certificates of
insurance or adequate proof of such insurance. All insurance
policies required of Seller and Seller's agents and
subcontractors shall contain a clause stating the name and
address of Buyer and that to be notified in writing by
the insurer at least thirty (30) days prior to cancellation, or
any material change in, of the policy.
35.03 All liability policies required herein shall name the Buyer as
an additional insured with respect to work performed under this
Agreement.
35.04 All policies required herein shall be maintained with insurers
acceptable to the Buyer. Buyer retains the right to disallow
coverage from any insurer that does not maintain a rating from
A. M. Best Company of B+ X or higher.
SECTION 36. INDEMNITY
36.01 Seller agrees to indemnify and hold Buyer harmless from any
and all liabilities, causes of action, lawsuits, penalties,
claims or demands (including the costs, expenses and
reasonable attorneys' fees on account thereof) that may
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be made: (1) by anyone for injuries of any kind, including but
not limited to personal injury, death, property damage and
theft, resulting from Seller's negligent or willful acts or
omissions under this Agreement, or those of persons furnished
by Seller, its agents or subcontractors; (2) by any of either
Seller's, its agent's or subcontractor's employees or former
employees for which the Seller's, its agents' or
subcontractors' liability to such employee or former employee
would otherwise be subject to payments under the state
Worker's Compensation laws, premises liability principles or
any other law or form of legal duty or obligation; or (3) by
either Seller's, its agent's or subcontractor's employees or
former employees, including applicants at Buyer's job site for
any and all claims arising out of the employment relationship
with respect to performing under this Agreement, including but
not limited to, employment discrimination charges and actions
arising under Title VII of The Civil Rights Act of 1964, as
amended; The Equal Pay Act; The Age Discrimination Act, as
amended; The Rehabilitation Act; The Americans with
Disabilities Act; The Fair Labor Standards Act; The National
Labor Relations Act; and any other applicable law. Seller, at
its own expense, agrees to defend Buyer, at Buyer's request,
against any such liability, cause of action, penalty, claim,
demand, administrative proceeding or lawsuit, including any in
which named as an "employer" or "joint employer" with
Seller. Buyer agrees to notify Seller promptly of any written
claims or demands against Buyer for which Seller is
responsible hereunder.
36.02 The foregoing indemnity shall be in addition to any other
indemnity obligations of Seller set forth in this Agreement.
36.03 SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATED TO THIS
AGREEMENT, WHETHER FORESEEABLE OR NOT, INCLUDING BUT NOT LIMITED
TO LOST PROFITS, LOSS OF DATA, OR RESULTING FROM BUYER'S OR
BUYER'S CUSTOMER'S USE OR INABILITY TO USE SELLER'S EMERGENCY
SERVICES, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING
CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE.
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36.04 Except as provided for in Section 12 "PATENT AND OTHER
PROPRIETARY RIGHTS INFRINGEMENT" or as otherwise required by
governing law, Seller's aggregate and entire liability with
respect to any single claim arising from performance or
nonperformance of obligations set forth under this Agreement, an
executed Letter Purchase Order, or any subject matter of this
Agreement, in tort, including any negligence, in contract or
otherwise, shall be limited to $[ ]
SECTION 37. SURVIVAL OF OBLIGATIONS
37.01 Any respective obligations of Buyer and Seller hereunder which
by their nature would continue beyond the termination,
cancellation or expiration of this Agreement or any Letter
Purchase Order, including, by way of example but not limited to,
the obligations provided in the Sections " BUYER'S INFORMATION";
INDEMNITY"; "PATENT AND OTHER PROPRIETARY RIGHTS INFRINGEMENT";
"PUBLICITY"; and "WARRANTY FOR EMERGENCY SERVICES" shall survive
such termination, cancellation or expiration.
SECTION 38. NOTICES
38. 01 Except as otherwise provided herein, any notices or demands
which are required by law or under the terms of this Agreement
shall be given or made by Seller or Buyer in writing and shall
be given by hand delivery, telegram or similar communications,
or by certified or registered mail, and addressed to the
respective parties set forth below. Such notices shall be
deemed to have been given in the case of telegrams or similar
communications when sent, and in the case of certified or
registered mail when deposited in the United States mail with
postage prepaid.
To Buyer: BellSouth Telecommunications, Inc.
Director - Procurement Services
38P40 Southern Xxxx Center
000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
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To Seller: SCC Communications Corp.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
38. 02 The above addresses may be changed at any time by giving thirty
(30) days prior written notice as above provided.
38.03 In addition to the foregoing, any notices of a legal nature
shall be copied to:
Legal Department
BellSouth Telecommunications, Inc.
0000 Xxxxxxxx Xxxx Xxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: General Attorney -
Contracting
SECTION 39. SECTION HEADINGS
39.01 The headings of the Sections included in this Agreement are
inserted for convenience only and are not intended to affect the
meaning or interpretation of this Agreement.
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SECTION 40. INCORPORATION BY REFERENCE
40.01 The terms and conditions contained in Appendix A, referred to
in this Agreement and attached hereto, is an integral part of
this Agreement and is fully incorporated herein by this
reference.
SECTION 41. ENTIRE AGREEMENT
41.01 This Agreement, and any Letter Purchase order placed
hereunder, shall constitute the entire agreement between Buyer
and Seller relating to this Agreement or a particular Letter
Purchase Order and may not be modified or amended other than
by a written instrument executed by both parties. With the
exception of those pre-printed provisions included as a part
of this Agreement, any other pre-printed provisions on
Seller's and Buyer's forms shall be deemed deleted. A Letter
Purchase Order placed by Buyer hereunder shall incorporate the
typed, stamped, or written provisions or data found thereon
and in subordinated documents (such as shipping releases) so
long as the typed, stamped, or written provisions or data
merely supplement but do not vary the provisions of this
Agreement. Whenever typed, stamped, or written provisions of
an accepted Letter Purchase Order conflict with this
Agreement, this Agreement shall control unless otherwise
agreed to under a "Special Considerations" section of the
Letter Purchase Order.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives in one or more counterparts, each of which shall
constitute an original, on the dates set forth below.
SCC COMMUNICATIONS CORP. BELLSOUTH TELECOMMUNICATIONS, INC.
By /s/ XXXXX X. XXXXXXXX By /s/ XXXXXXXXX XXXXXXX
----------------------------------- -----------------------------------
(Authorized Signature) (Authorized Signature)
Name XXXXX X. XXXXXXXX Name XXXXXXXXX XXXXXXX
--------------------------------- ---------------------------------
(Print or Type) (Print or Type)
Title CFO Title DIRECTOR-PROCUREMENT SERVICES
-------------------------------- --------------------------------
Date OCTOBER 17, 1995 Date OCTOBER 13, 1995
--------------------------------- ---------------------------------
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