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Confidential Treatment Request
EXHIBIT 10.7
AGREEMENT FOR SERVICES
BETWEEN
SCC COMMUNICATIONS CORP. (SCC)
AND
U S WEST COMMUNICATIONS, INC.
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TABLE OF CONTENTS
1. DEFINITIONS:..........................................................1
2. TERM:.................................................................1
3. TERMINATION:..........................................................2
4. SCOPE OF SERVICES:....................................................2
5. SERVICES FEE(S):......................................................2
6. INVOICES AND PAYMENTS:................................................2
7. ORDER(S):.............................................................2
8. SERVICE SPECIFICATIONS; WARRANTIES:...................................3
9. INSPECTION AND ACCEPTANCE:............................................3
10. FURNISHING OF LABOR, TOOLS, EQUIPMENT, AND MATERIAL:.................3
11. HAZARDOUS MATERIALS AND SAFETY:......................................3
12. OCCUPATIONAL SAFETY AND HEALTH ACT:..................................4
13. CONFIDENTIAL INFORMATION:............................................4
14. RECORDS:.............................................................5
15. INDEPENDENT CONTRACTOR:..............................................7
16. INDEMNITY:...........................................................7
17. PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INDEMNIFICATION:........7
18. INSURANCE:...........................................................8
19. SUBCONTRACTORS:......................................................9
20. ADVERTISING; PUBLICITY:..............................................9
21. PLANT AND WORK RULES:................................................9
22. SETOFF:..............................................................9
23. TIME IS OF ESSENCE:..................................................9
24. ASSIGNMENT:..........................................................9
25. FORCE MAJEURE:.......................................................9
26. WAIVER:.............................................................11
27. COMPLIANCE WITH LAWS:...............................................11
28. SEVERABILITY:.......................................................11
29. ESCALATION:.........................................................12
30. DISPUTE RESOLUTION:.................................................12
31. SEVERAL LIABILITY:..................................................12
32. NONEXCLUSIVE AGREEMENT:.............................................12
33. REMEDIES CUMULATIVE:................................................13
34. AMENDMENTS:.........................................................13
35. LIMITATION OF LIABILITY.............................................13
36. SURVIVAL:...........................................................13
37. BUSINESS CONDUCT:...................................................13
38. NOTICES:............................................................13
39. OWNERSHIP AND LICENSE OF SOFTWARE:..................................14
40. M/WBE SUBCONTRACTING PLAN:..........................................14
41. OTHER PROVISIONS:...................................................14
42. ENTIRE AGREEMENT:...................................................14
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EXHIBIT A - Scope of Work
EXHIBIT B - Pricing and Payment
EXHIBIT C - Nondiscrimination and Compliance Agreement
EXHIBIT D - M/WBE Subcontracting Plan
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AGREEMENT FOR SERVICES
This Agreement is made by and between U S WEST COMMUNICATIONS, INC.
("Customer"), with offices for transaction of business located at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxxx, Xxxxxxxxx 00000, and SCC COMMUNICATIONS
CORP., ("SCC") a Delaware Corporation, having its corporation offices located at
0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000. This Agreement may be extended to
any Customer "Affiliate" as that term is defined herein.
In consideration of the promises, mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, Customer
and SCC agree as follows:
1. DEFINITIONS:
The terms defined in this Article shall have the meanings set forth below
whenever they appear in this Agreement, unless (a) the context in which they are
used clearly requires a different meaning; or (b) a different definition is
described for a particular Article or provision: This list is not inclusive.
Exhibits attached to this Agreement may also contain additional defined terms.
1.1. "Affiliate" means any entity within North America directly providing
communications services which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with Customer. For the purposes of this subsection, "control" means (i) in
the case of corporate entities, direct or indirect ownership of twenty
percent (20%) or more of the stock or shares entitled to vote for the
election of the board of directors or other governing body of the entity;
and (ii) in the case of non-corporate entities, direct or indirect
ownership of twenty percent (20%) or greater of the equity interest.
1.2. "Agreement" means this written contract between Customer and SCC
covering the purchase of Services (defined herein) together with the Scope
of Work(s) (defined herein), attached exhibits, any Order(s) (defined
herein), any addenda, and amendments to this Agreement issued in accordance
with the Article entitled "Amendments".
1.3. "Customer" means U S WEST Communications, Inc. and shall also include
any Affiliate that places any Order(s) or obtains any Services under this
Agreement.
1.4. "New Service(s)" means an enhancement or enhancements to the Services
that incorporates significant additional functionality or separate out of
scope Services.
1.5. "Order(s)" means a written or electronic request by Customer for
Services which shall be deemed to incorporate all provisions of this
Agreement.
1.6. "Services" means the work to be performed by SCC under this Agreement,
as more fully described and set forth in Exhibit A to this Agreement.
1.7. "Scope of Work(s)" means the description and definition of the
Services to be performed by SCC, the task and responsibilities of Customer,
and the fees for the Services provided under this Agreement, all as more
fully described and set forth in Exhibit A and B to this Agreement.
2. TERM:
This Agreement shall commence on DECEMBER 28, 1995, and expire on [
], unless earlier terminated under the terms of this Agreement. Following
this initial term, the Agreement shall be extended for continuous five year
terms, unless terminated at the end of the initial or any renewal term upon no
less than one hundred and eighty (180) days prior written notice. The parties
may extend the
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initial term or any subsequent term by executing a separate written agreement of
extension prior to the expiration of the term.
3. TERMINATION:
3.1. If either party shall at any time commit any breach of any material
covenant or warranty contained herein or otherwise materially default of
its or their respective obligations under this Agreement, and the defaulted
party gives written notice thereof, and if such material breach or default
is not cured or remedied within sixty (60) days from said notice of breach
or default, or if a failure to commence cure or remedy has not occurred
within such sixty (60) days of said notice, the defaulted party, upon
written notification and at its discretion may extend the 60 day cure
period to the party in default, provided the party in default submits to
the defaulted party a satisfactory plan to remedy the default. If such
default is not curable, the defaulted party may, at its option, and in
addition to any other remedies that it may be entitled to, terminate this
Agreement by notice in writing to such effect. The failure of the defaulted
party to exercise such right for any one default shall not be deemed a
waiver of said right if the party in default persists in such default or
commits any other default.
3.2. If for any reason, this Agreement is to be terminated, the Parties
agree to follow the procedures outlined in the De-Implementation Plan to be
incorporated into Exhibit A to this Agreement.
4. SCOPE OF SERVICES:
The description of the Services, together with the location(s), time(s) of
performance, and service specifications are described in this Agreement,
including the attached Exhibit A, Scope of Work. The Services shall be performed
upon such terms as set forth in the Scope of Work and this Agreement.
5. SERVICES FEE(S):
As consideration for SCC's satisfactory performance of the Services, Customer
agrees to pay SCC the Services Fee(s) set forth in Exhibit B, the Price and
Payment Schedule attached to this Agreement.
6. INVOICES AND PAYMENTS:
6.1. SCC shall issue invoices in the format required by Customer within
thirty (30) days following the completion of the Services to the address
stated on any Order(s).
6.2. Invoices for completed Services shall be payable upon receipt of a
correct invoice. Customer is not required to pay invoiced amounts in
dispute until such dispute is resolved. Once the dispute is resolved the
invoice shall be paid within thirty days following such resolution.
6.3. Customer reserves the right, before making payments, to require SCC to
furnish sufficient evidence that all claims, liens and causes of action, if
any, for the payment of wages or salaries or the payment of charges for
materials, tools, machinery or supplies have been satisfied, released or
settled. If satisfactory evidence is not furnished, the amount of such
claims, liens and causes of action may be withheld from any monies
otherwise payable to SCC hereunder until such evidence of payment or a bond
to indemnify Customer against any such claims, liens, and causes of action
has been furnished.
7. ORDER(S):
Any attempted acknowledgment of any Order(s) by SCC containing terms and
conditions inconsistent with or in addition to the terms and conditions of this
Agreement or any Order(s) are hereby objected to by Customer and shall not be
binding upon Customer. This Article shall not be waived, modified or amended
except by a writing in accordance with the Article entitled "Amendments". 8.
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8. SERVICE SPECIFICATIONS; WARRANTIES:
8.1. SCC warrants and agrees that the Services shall be performed according
to the specifications contained in the Scope of Work and they shall be
performed in a professional manner consistent with reasonable industry
standards. SCC shall, at no expense to Customer, correct any failure to
fulfill the above warranty which may appear at any time during the term of
this Agreement.
8.2. When a need arises for Services to be covered under this warranty,
Customer shall follow the Support Procedures described in Exhibit A.
8.3. SCC further warrants that it has no knowledge of any existing software
viruses, worms, trap doors, etc., ("disorder"). If SCC becomes aware of any
such disorder in its products used in the performance of Services ordered
by Customer, it shall so advise Customer in writing immediately. Upon
learning of such disorder in its products or software, SCC shall use its
best efforts to remedy it as soon as possible.
8.4. Customer shall also warrant that it has no knowledge of any existing
software viruses, worms trap doors, etc. ("disorder"). If Customer becomes
aware of such disorder in its products or data provided to SCC, it shall so
advise SCC in writing immediately. Upon learning of a disorder in its
products or data, Customer shall use its best efforts to remedy it as soon
as possible and reimburse SCC for efforts expended by SCC in order to
restore other SCC customer's data if it has been affected by any such
disorder. Customer shall not be liable for any indirect, special,
consequential, incidental or punitive damages due to such disorder to SCC
or any of SCC's customers or other third parties.
9. INSPECTION AND ACCEPTANCE:
Customer shall be provided regular performance statistics, the Performance
Metrics, as defined and described in Exhibit A as a means to determine if the
Services provided by SCC conform to the specifications contained in Exhibit A.
SCC shall correct such nonconforming Services in an expeditious manner at its
own expense.
10. FURNISHING OF LABOR, TOOLS, EQUIPMENT, AND MATERIAL:
SCC shall furnish, at its own cost and expense, all labor, supervision,
machinery, tools, equipment, fuel, power, materials, expendable supplies,
transportation, licenses, permits, bonds, and all other items that may be
required or appropriate in the performance of the Services except items which
Customer specifically agrees to furnish. All materials, supplies, and other
items purchased by SCC shall be in SCC's own name and account. SCC shall be
responsible for all freight and delivery, costs of materials, supplies,
equipment, and other items on the work site and shall be responsible for
in-transit loss or damage.
11. HAZARDOUS MATERIALS AND SAFETY:
11.1. "Hazardous Materials" means any hazardous, radioactive, or toxic
substance, material, or waste defined or regulated as such in or under any
environmental, health or safety law including without limitation asbestos,
and those hazardous materials, substances, and wastes defined by the United
States Department of Transportation ("DOT"), Occupational Safety and Health
Administration ("OSHA"), Environmental Protection Agency ("EPA") or the
Nuclear Regulatory Commission ("NRC") through their enabling statutes, or
regulations, orders or rules.
11.2. In connection with its activities under this Agreement and all
Services under this Agreement, SCC shall comply with all applicable
provisions of The Hazardous Materials Transportation Act (49 USC 1801, et
seq.), the Resource Conservation and Recovery Act (42 USC 6901, et seq.),
the Toxic Substances Control Act of 1976 (15 USC 2601, et seq.), the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (42 USC 9601
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et seq.), the Occupational Safety and Health Act of 1970 and any other
applicable federal, state, and local laws and regulations governing
Hazardous Materials or safety, including but not limited to state and
federal motor carrier safety regulations, the DOT Hazardous Materials
regulations and any regulations governing conveyance, packaging, marking,
identification, storage, handling and/or disposition of Hazardous
Materials, or governing any accidents or incidents in connection with such
activities involving Hazardous Materials, all as they may be amended or
supplemented from time to time.
11.3. To the extent applicable, SCC shall furnish Customer with Material
Safety Data Sheets that comply with the requirements of the OSHA Hazard
Communication Standard (29 CFR 1910.1200), as the same may be amended or
supplemented from time to time.
11.4. SCC shall indemnify and hold Customer harmless in accordance with the
Article entitled "Indemnity" for any claims, liabilities and damages,
including but not limited to reasonable attorneys' fees, costs of defense,
clean-up costs, response costs, costs of corrective action, costs of
financial assurance, and/or natural resource damages, that may arise, be
imposed on, be incurred by, be asserted against or be sustained by Customer
by reason of SCC's failure to comply with the terms of this Article.
12. OCCUPATIONAL SAFETY AND HEALTH ACT:
12.1. SCC shall be responsible for its safety, the safety of its employees,
its subcontractors, and the worksite in general, and shall comply with all
applicable provisions of local, state, and federal laws, regulations and
orders affecting safety and health, including but not limited to the
Occupational Safety and Health Act of 1970 (hereinafter collectively
referred to as ("the OSH Act"). All Services and related deliverables under
this Agreement shall be such that when received and/or used by Customer,
they are in compliance with the OSH Act and other laws, regulations, rules
and standards relating to safety. SCC shall be solely responsible for any
violation of the OSH Act by it or its subcontractors, shall immediately
remedy any conditions giving rise to such violations, and shall defend and
hold Customer harmless from any penalty, fine, or liability in connection
therewith. SCC is expressly authorized to correct any violations of the OSH
Act that come to its attention where said violations are within the scope
of SCC's work. Upon request of Customer, SCC shall provide Customer with
written assurances that SCC and its subcontractors have a written safety
plan in effect and the OSH Act training appropriate for the work has been
conducted for SCC and its subcontractors. SCC shall be responsible for
coordinating its safety plan with its subcontractors, other independent
contractors and Customer, where appropriate. This clause shall appear in
all of SCC's subcontracts.
12.2. While working on Customer's premises, SCC agrees that it and its
subcontractors shall give access to the authorized representatives of the
Secretary of Labor or any state or local official for the purpose of
inspecting, investigating, or carrying out any duties under the OSH Act at
Customer's premises or facilities and SCC shall immediately notify Customer
prior to allowing access to Customer premises or facilities.
13. CONFIDENTIAL INFORMATION:
13.1. As used herein, "Confidential Information" shall mean any and all
technical or business information, including third party information,
furnished, in whatever tangible form or medium, or disclosed by one party
to the other (including, but not limited to, product/service
specifications, prototypes, computer programs, models, drawings, marketing
plans, financial data and personnel statistics), which is marked as
confidential or proprietary; or for information which is orally disclosed,
the disclosing party indicates to the other at the time of disclosure the
confidential or proprietary nature of the information and reduces orally
disclosed Confidential Information to
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writing and provides it to the receiving party within twenty days after
such disclosure which is also marked as confidential.
13.2. Customer does not wish to receive the Confidential Information of
SCC, and SCC agrees that it will first provide or disclose information
which is not confidential. Only to the extent that Customer requests
Confidential Information from SCC will SCC furnish or disclose Confidential
Information.
13.3. Notwithstanding the termination, expiration or cancellation of this
Agreement, each party agrees to treat such Confidential Information as
confidential for a period of three years from the date of receipt of same
unless otherwise agreed to in writing by both parties, and that during such
period each party will use same solely for the purposes of this Agreement
unless otherwise allowed herein or by written permission of the disclosing
party. In handling the Confidential Information, each party agrees: (1) not
to copy such Confidential Information of the other unless specifically
authorized; (2) not to make disclosure of any such Confidential Information
to anyone except employees and independent contractors and subcontractors
of such party to whom disclosure is necessary for the purposes set forth
above; (3) to appropriately notify such employees and independent
contractors and subcontractors that the disclosure is made in confidence
and shall be kept in confidence in accordance with this Agreement; and (4)
to make requests for Confidential Information of the other only if
necessary to accomplish the purposes set forth in this Agreement. The
obligations set forth herein shall be satisfied by each party through the
exercise of at least the same degree of care used to restrict disclosure of
its own information of like importance but not less than a reasonable
degree of care. Notwithstanding any other provisions of this Article,
Confidential Information may be disclosed as may be required by law,
regulation or court or agency order or demand, after prompt prior
notification to the other party of such required disclosure.
13.4. Each party agrees that in the event permission is granted by the
other to copy Confidential Information, or that copying is otherwise
permitted hereunder, each such copy shall contain and state the same
confidential or proprietary notices or legends, if any, which appear on the
original. Nothing herein shall be construed as granting to either party any
right or license under any copyrights, inventions, or patents now or
hereafter owned or controlled by the other party. Upon termination,
cancellation or expiration of this Agreement for any reason or upon request
of the disclosing party, all Confidential Information, together with any
copies of same as may be authorized herein, shall be returned to the
disclosing party or certified destroyed by the receiving party.
13.5. The obligations imposed in this Article shall not apply to any
information that: (1) is already in the possession of, is known to, or is
independently developed by the receiving party; or (2) is or becomes
publicly available through no fault of the receiving party; or (3) is
obtained by the receiving party from a third person without breach by such
third person of an obligation of confidence with respect to the
Confidential Information disclosed; or (4) is disclosed without restriction
by the disclosing party; or (5) is required to be disclosed pursuant to the
lawful order of a government agency or disclosure is required by operation
of the law.
13.6. The requirements of use and confidentiality set forth herein shall
survive the expiration, termination or cancellation of this Agreement.
14. RECORDS:
14.1. SCC shall maintain complete and accurate records of all amounts
billable to and payments made by Customer hereunder in accordance with
recognized accounting practices. SCC shall retain such records for a period
of four years from the date of final payment for Services covered hereby.
SCC agrees to provide reasonable supporting documentation concerning any
disputed amount of an invoice to Customer within thirty days after Customer
provides written notification of the dispute to SCC. 14.2.
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14.2. During the term of this Agreement and the respective periods in which
SCC is required to maintain such records, Customer and its authorized
agents and representatives shall have access to such records for purposes
of audit during SCC's normal business hours, and upon prior written notice.
15. INDEPENDENT CONTRACTOR:
SCC HEREBY DECLARES AND AGREES THAT IT IS ENGAGED IN AN INDEPENDENT BUSINESS AND
WILL PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AS AN INDEPENDENT CONTRACTOR
AND NOT AS THE AGENT OR EMPLOYEE OF CUSTOMER; THAT THE PERSONS PERFORMING
SERVICES HEREUNDER ARE NOT AGENTS OR EMPLOYEES OF CUSTOMER; THAT SCC HAS AND
HEREBY RETAINS THE RIGHT TO EXERCISE FULL CONTROL OF AND SUPERVISION OVER THE
PERFORMANCE OF SCC'S OBLIGATIONS HEREUNDER AND FULL CONTROL OVER THE EMPLOYMENT,
DIRECTION, COMPENSATION AND DISCHARGE OF ALL EMPLOYEES ASSISTING IN THE
PERFORMANCE OF SUCH OBLIGATIONS; THAT SCC WILL BE SOLELY RESPONSIBLE FOR ALL
MATTERS RELATING TO PAYMENT OF SUCH EMPLOYEES, INCLUDING COMPLIANCE WITH
WORKERS' COMPENSATION, UNEMPLOYMENT, DISABILITY INSURANCE, SOCIAL SECURITY
WITHHOLDING, AND ALL OTHER FEDERAL, STATE AND LOCAL LAWS, RULES AND REGULATIONS
GOVERNING SUCH MATTERS; AND THAT SCC WILL BE RESPONSIBLE FOR SCC'S OWN ACTS AND
THOSE OF SCC'S AGENTS, EMPLOYEES AND SUBCONTRACTORS DURING THE PERFORMANCE OF
SCC'S OBLIGATIONS UNDER THIS AGREEMENT. SCC AND ITS EMPLOYEES ARE NOT ENTITLED
TO UNEMPLOYMENT INSURANCE BENEFITS AS A RESULT OF PERFORMING UNDER THIS
AGREEMENT. SCC IS RESPONSIBLE FOR AND SHALL PAY ALL ASSESSABLE FEDERAL AND STATE
INCOME TAX ON AMOUNTS PAID UNDER THIS AGREEMENT.
16. INDEMNITY:
Each Party shall defend, indemnify and hold harmless the other and the other's
corporate owners, parents, affiliates, subsidiaries, agents, directors
employees, their successors and assigns against and from any and all losses,
damages, expenses (including but not limited to, court costs and reasonable
attorneys' fees), claims, suits, judgments, orders,, awards, and "liabilities",
whether based in contract or tort, including strict liability, to the extent
that such losses, damages, expenses, demands, claims, suits, and liabilities
arise out of or in connection with (a) the indemnifying Party's gross
negligence, negligent acts, omissions, or willfulness , or those persons
furnished by it, (b) the failure of the indemnifying Party to fully comply with
the terms and conditions of this Agreement, or (c) assertions under Worker's
Compensation or similar laws or employee benefit acts made by persons furnished
by the indemnifying Party. "Liabilities" as provided in this Section, shall
include only direct liabilities, but not be limited to those which are
attributable to personal injury, sickness, disease or death; and/or result from
injury to or destruction of real or personal property including loss of use
thereof, theft, misuse or misappropriation. The indemnified Party shall promptly
notify the indemnifying Party of any written claim, loss or demand for which the
indemnifying Party is responsible for under this Section.
16.1. Neither party shall be liable for any incidental and consequential
damages, loss, anticipated profit, or unabsorbed indirect costs or
overheads or any other losses or claims whatsoever on account of or arising
out of this Agreement.
17. PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INDEMNIFICATION:
17.1. SCC shall indemnify and hold harmless Customer, its owners, parents,
affiliates, subsidiaries, agents, directors and employees from and against
all Liabilities that may result by reason of any infringement or claim of
infringement of any patent, trademark, copyright, trade secret or other
proprietary right relating to Services and/or deliverables or materials
used in or arising from provision of Services ("Deliverables or Materials")
and/or the use thereof. SCC will defend and/or settle at its own expense
any action brought against Customer to the extent that it is based on a
claim that Services, Deliverables or Materials and/or the use thereof,
infringe any patent, trademark, copyright, trade secret or other
proprietary right.
17.2. If a preliminary or final judgment shall be obtained against
Customer's use of any Services, Deliverables or Materials or any part
thereof by reason of alleged infringement or if in SCC's opinion, such
Services, Deliverables or Materials and/or the use thereof are likely to
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become subject to a claim for infringement, SCC shall, at its expense and
option, either: (1) procure for Customer the right to continue using such
Services, Deliverables or Materials; or (2) replace or modify the Services,
Deliverables or Materials so that they become non-infringing but only if
the modification or replacement does not adversely affect Customer's rights
or ability to use same as specified herein. If neither of those options is
reasonably possible, SCC and Customer shall negotiate in good faith a new
price for Services which reflects any reduction in the extent of the
Services being provided or, if SCC cannot provide any of the Services
previously provided, SCC shall pay related direct expenses incurred by
Customer for the De-Implementation of Services.
18. INSURANCE:
SCC shall at all times during the term of this Agreement, at its own cost and
expense, carry and maintain the insurance coverage listed below with insurers
having a "Best's" rating of B+XIII.
18.1. Workers' Compensation and/or (when exposure exists) United States
Longshoremen and Harbor workers insurance with (1) statutory limits as
required in the state(s) of operation; and (2) although not required by
statute, coverage for any SCC employee entering onto Customer premises.
18.2. Employers' Liability or "Stop Gap" insurance with limits of not less
than $[ ] each accident.
18.3. Commercial General Liability insurance covering claims for bodily
injury, death, personal injury or property damage occurring or arising out
of the performance of this Agreement, including coverage for independent
contractor's protection (required if any work will be subcontracted),
premises-operations, products/completed operations and contractual
liability with respect to the liability assumed by SCC hereunder. The
limits of insurance shall not be less than:
Each Occurrence $[ ]
General Aggregate Limit $[ ]
Products-Completed Operations Limit $[ ]
Personal and Advertising Injury Limit $[ ]
18.4. Should performance of this Agreement involve any use of automobiles,
comprehensive automobile liability insurance covering the ownership,
operation and maintenance of all owned, non-owned and hired motor vehicles
with limits of not less than $[ ] per occurrence for bodily injury
and property damage.
18.5. Errors and Omissions/Professional Liability insurance covering errors
and omissions of SCC with limits of not less than $[ ] per
occurrence, with an aggregate of $[ ], and endorsed to provide
coverage for contractual liability with respect to liability assumed by SCC
hereunder. Such insurance shall provide a retroactive date prior to the
date of this agreement and an extended claims reporting period of not less
than 3 years after the termination of this agreement.
18.6. Blanket Employee Dishonesty Insurance covering losses due to SCC
employee's dishonest acts in an amount not less than $[ ] per
occurrence. Such insurance shall be endorsed to provide coverage to
Customer for losses arising from dishonest acts of SCC's employees while
providing services hereunder.
18.7. The insurance limits required in this Section 18 may be obtained
through any combination of primary and excess or umbrella liability
insurance. SCC shall forward to Customer certificates of such insurance
upon execution of this Agreement and upon any renewal of such insurance
during the term of this Agreement. The certificate(s) shall provide that
(1) the Customer (and its
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participating subsidiaries) be named as an additional insured(s) as their
interest may appear with respect to this Agreement under insurance required
in Section 18.3; (2) thirty (30) days prior written notice of cancellation
of, material change or exclusions in the policy to which certificate(s)
relate shall be given to the Customer; (3) coverage is primary and not
excess of, or contributory with, any other valid and collectible insurance
purchased or maintained by the Customer. SCC shall not commence any work
hereunder until the obligations of the SCC with respect to insurance have
been fulfilled. The fulfillment of such obligations, however, shall not
otherwise relieve the SCC of any liability assumed hereunder or in any way
modify the SCC's obligations to indemnify the Customer.
18.8. SCC shall require its subcontractors who may enter upon Customer's
premises to maintain insurance as described above.
19. SUBCONTRACTORS:
SCC shall obtain Customer's written consent prior to subcontracting any
obligations hereunder. Such requirement shall not apply to purchases of
incidental, standard commercial supplies or raw materials.
20. ADVERTISING; PUBLICITY:
No references to Customer or any party affiliated with Customer or references to
Customer's names, marks, codes, drawings or specifications will be used in any
of SCC's advertising, promotional efforts or any publicity of any kind without
Customer's prior written permission.
21. PLANT AND WORK RULES:
SCC and Customer, while on the premises of the other, shall comply with all
plant rules and regulations including, where required by governmental
regulation, submission of satisfactory clearance from the appropriate
governmental authorities.
22. SETOFF:
All claims for money due or to become due from Customer shall be subject to
deduction or setoff by Customer by reason of any amounts due as the result of
Escalation or Arbitration Procedures pursuant to this Agreement, or other money
due by mutual agreement arising out of this or any other transaction with SCC.
23. TIME IS OF ESSENCE:
Time of performance is of the essence in this Agreement and a substantial and
material term hereof.
24. ASSIGNMENT:
No rights or interests in this Agreement shall be assigned by either Party
without the written permission of the other, which permission shall not be
unreasonably withheld or delayed. No delegation for the performance of Services
or other obligations of SCC shall be made without written permission of
Customer, including the hiring of subcontractors to perform any part of the
Services. Customer reserves the right to assign this Agreement without SCC's
permission to any Affiliate or successor company of Customer, and SCC may assign
the Agreement, with the prior consent of Customer which consent shall not be
unreasonably withheld, to a third party acquiring all or substantially all of
SCC's assets or stock, or by a merger of SCC and a third party.
25. FORCE MAJEURE:
Neither party shall be liable for failure to perform when such failure is caused
by unforeseeable force majeure circumstances. If such circumstances occur, the
party injured by the other's inability to perform may elect to (1) terminate
this Agreement and/or any Order(s) immediately; and/or (2) suspend this
Agreement and/or any Order(s) for the duration of the force majeure
circumstances, and then resume performance under this Agreement and/or any
Order(s). The party experiencing the force majeure circumstances shall cooperate
with and assist the injured party in all reasonable ways to minimize the impact
of such circumstances on the injured party, including assisting in locating and
arranging for substitute performance of the Services.
Confidential. Disclose and distribute solely to
those individuals who have a need to know.
12
26. WAIVER:
Either party's failure to insist on performance of any of the terms or
conditions herein or to exercise any right or privilege, or either party's
waiver of any breach hereunder shall not be construed to be a waiver, or waive
any other terms, conditions, or privileges, whether of the same or similar type.
27. COMPLIANCE WITH LAWS:
27.1. This Agreement and the parties' actions under this Agreement shall
comply with all applicable federal, state, and local laws, rules,
regulations, court orders, and governmental or regulatory agency orders
including the Modification of Final Judgment ("MFJ"), as issued in United
States v. Western Electric Co., et al., Civil Action No. 00-0000, X.X.
Xxxxxxxx Xxxxx for the District of Columbia, and all subsequent orders
issued in or related to that proceeding. Customer is also subject to a
Civil Enforcement Consent Order (CECO).
27.2. Customer's E9-1-1 service is regulated by local Public Service
Commissions ("PUC"). These commissions can change service requirements that
may impact the way E9-1-1 Services are delivered. SCC acknowledges this and
agrees to be responsive to PUC inquiries, hearings, and demands for
information and testimony, and will support Customer in its dealings with
PUCs as it pertains to any aspect of the E9-1-1 Services provided under
this Agreement.
27.3. Unless exempt under the rules and regulations of the Secretary of
Labor or other proper authority, this Agreement is subject to applicable
laws and orders relating to equal opportunity and nondiscrimination in
employment as shown in the attached Exhibit C, entitled "Nondiscrimination
and Compliance Agreement."
27.4. SCC shall obtain and maintain at its own expense all permits and
licenses required by law with respect to any portion of the Services, and
shall give all notices, pay all fees and comply with all laws, ordinances,
rules and regulations relating to its performance obligations specified
herein.
27.5. SCC shall be solely responsible for the payment of all payroll and
other taxes applicable to it. Customer will pay only applicable sales or
use taxes on Services and personal property furnished in accordance with
this Agreement. All such taxes shall be separately stated on SCC's invoice.
27.6. Both parties shall adhere to the U.S. Export Administration Laws and
Regulations and shall not export or re-export any Confidential Information,
technical data, products or software received from the other party, or any
direct product of such Confidential Information, technical data, products
or software; to any person or company who is a legal resident of or is
controlled by a legal resident of any proscribed country listed in Section
779.4(f) of the U.S. Export Administration Regulations (as the same may be
amended from time to time), unless properly authorized by the U.S.
Government. This requirement shall survive the expiration, termination or
cancellation of this Agreement.
28. SEVERABILITY:
In the event that a court or a governmental or regulatory agency with proper
jurisdiction determines that this Agreement or a provision of this Agreement is
unlawful respectively, this Agreement, or that provision of this Agreement, to
the extent it is unlawful, shall terminate. Further, if Customer determines that
this Agreement or a provision of this Agreement is inconsistent with the MFJ or
CECO, this Agreement or that provision shall terminate upon written notice to
SCC to that effect. If a provision of this Agreement is terminated but the
parties can continue legally, commercially and practicably without the
terminated provision, the remainder of this Agreement shall continue in effect.
No additional liability shall attach to either party as a result of any such
termination. 29.
Confidential. Disclose and distribute solely to
those individuals who have a need to know.
13
29. ESCALATION:
Any dispute between the parties under the terms of this Agreement shall attempt
to be resolved first by the Project Managers as defined in Exhibit A to the
Agreement. It is the understanding of both parties that in the event of a
dispute that cannot be resolved by the Project Managers, then it shall be
escalated up the levels of management for each party. If the senior management
of both parties cannot resolve the dispute, then Section 30 of this Agreement
shall become effective.
30. DISPUTE RESOLUTION:
30.1. If any claim, controversy or dispute of any kind or nature whatsoever
arises between the parties, their agents, employees, officers, directors or
affiliated agents ("Dispute") and such Dispute cannot be settled through
negotiation as required by Section 29, Escalation, the parties agree to
attempt to settle the Dispute through nonbinding mediation under the
Commercial Mediation Rules of the American Arbitration Association ("AAA").
If the parties cannot settle the matter through mediation, then any Dispute
shall be resolved by arbitration as provided in this Article. Federal law
shall govern the arbitrability of all claims. Notwithstanding the
foregoing, the parties may cancel or terminate this Agreement in accordance
with its terms and conditions without being required to follow the
procedures set forth in this Article.
30.2. A single arbitrator engaged in the practice of law, who is
knowledgeable about the subject matter of this Agreement and the matter in
Dispute, shall conduct the arbitration under the then current rules of the
AAA, unless otherwise provided herein. The arbitrator shall be selected in
accordance with AAA procedures from a list of qualified people maintained
by the AAA. The arbitration shall be conducted at Denver, Colorado and all
expedited procedures prescribed by the AAA rules shall apply. The laws of
Colorado shall govern the construction and interpretation of this
Agreement.
30.3. Either party may request from the arbitrator injunctive relief to
maintain the status quo until such time as the arbitration award is
rendered or the Dispute is otherwise resolved. The arbitrator shall not
have authority to award punitive damages.
30.4. Each party shall bear its own costs and attorneys' fees, and the
parties shall share equally the fees and expenses of the arbitrator. The
arbitrator's decision and award shall be final and binding, and judgment
upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof.
30.5. If any party files a judicial or administrative action asserting
claims subject to arbitration, as prescribed herein, and another party
successfully stays such action and/or compels arbitration of said claims,
the party filing said action shall pay the other party's costs and expenses
incurred in seeking such stay and/or compelling arbitration, including
reasonable attorneys' fees.
31. SEVERAL LIABILITY:
The term Customer as used herein may be applicable to one or more parties and
the singular shall include the plural. If more than one party is referred to as
Customer herein, then their obligations and liabilities shall be joint and
several. Notwithstanding the foregoing, any and all applicable discounts and/or
credits shall be based upon the combined forecasts and/or purchases made by all
Customers under this Agreement.
32. NONEXCLUSIVE AGREEMENT:
It is expressly understood and agreed that this Agreement does not grant to SCC
any exclusive privileges or rights and Customer may contract with other
suppliers for the procurement of comparable services.
Confidential. Disclose and distribute solely to
those individuals who have a need to know.
14
33. REMEDIES CUMULATIVE:
The remedies provided herein shall be cumulative and in addition to any other
remedies provided by law or equity.
34. AMENDMENTS:
No change or modifications of any terms or conditions herein shall be valid or
binding on either party unless made in writing and signed by U S WEST Business
Resources, Inc., as agent for Customer and an authorized representative of SCC.
35. LIMITATION OF LIABILITY
35.1. U S WEST Business Resources, Inc. is acting as agent in the
negotiation, execution and administration of this Agreement, but U S WEST
Business Resources, Inc. shall not in any event be liable for the
performance or nonperformance of this Agreement or any Order(s) by
Customer, except to the extent that U S WEST Business Resources, Inc. is
Customer.
35.2. SCC's liability on any claim for damages arising out of SCC's
performance or non-performance under this Agreement, except as provided in
Section 17, Patent, Trademark, Copyright or Trade Secrets Indemnification,
shall be limited to direct damages and shall not exceed $[ ]
36. SURVIVAL:
The provisions of this Agreement that, by their sense and context, are intended
to survive performance by either or both parties shall also survive the
completion, expiration, termination or cancellation of this Agreement or any
Order(s).
37. BUSINESS CONDUCT:
Customer has adopted and follows a Code of Business Ethics and Conduct which
imposes on itself and its employees an obligation to deal with all suppliers and
contractors in a fair and open manner in accordance with the highest standards
of integrity. SCC and Customer each represents and warrants that it shall
perform to the highest level of business and professional ethics, and that it
has not made or received and shall not make or receive any payments, gifts,
favors, entertainment, secret commissions or hidden gratuities for the purpose
of securing preferential treatment or action from or to any party in connection
with this Agreement or the Services. Any breach or failure with respect to this
representation and warranty by either party shall constitute a material breach
of this Agreement.
38. NOTICES:
Where written notices, demands, or other communications are required under this
Agreement to be made in writing, they shall be deemed duly given when made in
writing and delivered in hand, or upon receipt when properly addressed
return-receipt-requested and delivered by United States Postal Service or other
delivery service to the following addresses:
Customer: U S WEST Communications, Inc.
Director Public Safety Group
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
with a copy to:
[ ]
U S WEST Communications, Inc.
0000 X. Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Confidential. Disclose and distribute solely to
those individuals who have a need to know.
15
SCC: SCC COMMUNICATIONS CORP.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Chief Financial Officer
FAX: 000-000-0000
Addresses may be changed by written notice to the parties.
39. OWNERSHIP AND LICENSE OF SOFTWARE:
39.1. Nothing in this Agreement shall be construed to grant any ownership
or license to Customer of the SCC provided hardware and software products
used in providing the Services under this Agreement. Nothing in this
Agreement shall be construed to grant to SCC any ownership or rights to any
Customer provided data provided to SCC for use in the provision of Services
to Customer.
39.2. Any programs, processes, or technical information which is developed
by SCC as a result of providing Services to Customer, shall be owned by
SCC. Nothing in this Agreement shall be construed to grant to Customer any
ownership of such information, unless otherwise agreed to in writing,
signed by both parties, and made a part of this Agreement.
40. M/WBE SUBCONTRACTING PLAN:
40.1. Support of Minority and Women Businesses is part of Customer's
ongoing business strategy. To effectively carry out policy objectives in
this area, Customer has instituted the Minority and Women Business
Enterprise (M/WBE) Subcontracting Plan.
40.2. In compliance with such plan, SCC agrees and commits to subcontract
in accordance with the subcontracting plan components and requirements
attached to and made part of this Agreement as Exhibit D. SCC's specific
subcontracting plan shall be attached to and made part of this Agreement as
an attachment to the same Exhibit D identified above.
41. OTHER PROVISIONS:
Both parties agree that any additional negotiations with regard to New Services,
Orders, etc., not explicitly covered under this Agreement, including the
attached Exhibits, will be conducted with fairness and to the mutual benefit of
both parties.
42. ENTIRE AGREEMENT:
42.1. This Agreement, together with all referenced attachments and Exhibits
shall constitute the entire Agreement between the parties with respect to
the subject matter of this Agreement. This Agreement supersedes all prior
oral and written communications, agreements and understandings of the
parties with respect to the subject of this Agreement.
42.2. The final Scope of Work shall include a detailed project plan,
detailed service plan with Service thresholds and penalties, a detailed
network design, a detailed data security plan, and other documented
agreements between the parties. In the event such final Scope of Work is
not completed and mutually agreed to by January 31, 1996, or another
mutually agreed extension, then either party may terminate this Agreement.
In the event of a termination pursuant to this Section 42, SCC shall refund
to Customer the NRE Fee paid pursuant to Exhibit B, less reasonable direct
costs incurred by SCC to the date of termination. Upon completion, the
final Scope of Work shall be attached to and made a part of this Agreement
as an attachment to Exhibit A.
Confidential. Disclose and distribute solely to
those individuals who have a need to know.
16
The parties intending to be legally bound have caused this Agreement to be
executed by their duly authorized representatives.
U S WEST COMMUNICATIONS, INC. SCC COMMUNICATIONS CORP.
/s/ S. D. XXXXXXXX /s/ XXXXXX XXXXXXXXX
--------------------------------- ---------------------------------
(Authorized Signature) (Authorized Signature)
S. D. XXXXXXXX Xxxxxx Xxxxxxxxx
--------------------------------- ---------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
PRESIDENT AND CEO President and CEO
--------------------------------- ---------------------------------
(Title) (Title)
DECEMBER 29, 1995 December 28, 1995
--------------------------------- ---------------------------------
(Execution Date) (Execution Date)
Confidential. Disclose and distribute solely to
those individuals who have a need to know.
