Exhibit:10.13
Confidential treatment has been requested for portions of this Exhibit 10.13.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [XXXXX]. A complete version of this Exhibit
has been filed with Securities and Exchange Commission.
GENERAL ELECTRIC-MODEM MEDIA.XXXXX XXXXX, INC.
MASTER SERVICES AGREEMENT
This Master Services Agreement (the "Agreement") is between Modem
Media.Xxxxx Xxxxx, Inc. with its principal place of business at 000 Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 ("Modem Media") and General Electric
Company with its principal place of business at 0000 Xxxxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 ("GE"). The provisions of this Agreement
shall apply to Services provided to GE, globally, under this Agreement.
When completed and executed by both parties, a Statement of Work shall
evidence the Services to be provided and GE's payment obligation for same.
A. Definitions
1. "Services" shall mean work performed by Modem Media for GE pursuant
to a SOW, agreed to by the parties, under this Agreement. The
schedule and particular requirements for Services will be agreed
upon by the parties in a SOW.
2. "Statement of Work (SOW) " shall mean any mutually agreed upon form
for ordering Services and any written attachments thereto, which
form(s) shall specify the Services, applicable fees (including
whether such fees shall be on a time & materials ("T&M"), or on a
fixed price ("FP") basis), scope of work, and appropriate project
timelines, as well as any project-specific requirements; for
example, the intent of parties with respect to any rights to
particular developments (intellectual property), specific project
milestones and/or quality and warranty considerations (e.g.
DFSS-Design for Six Sigma Requirements), special fees, and all such
other particular objectives, considerations, or requirements in
conjunction with the delivery of Services by Modem Media. Each SOW
shall be governed by the terms of this Agreement and shall reference
the Effective Date specified below. SOWs for Services outside the
United States may, upon agreement of the parties, include terms and
conditions which modify or are in addition to the provisions of this
Agreement due to the laws of the country.
B. Charges, Payment, and Taxes
1. Fees for Services
Services will be provided either on a time and material (T&M) basis
at rates and applicable discounts in accordance with Exhibit A
during the term thereof, or on a fixed price basis (FP), at the
fixed price stated in the applicable SOW, where the bid for such
fixed price shall incorporate rates and [XXXXX] in accordance with
the letter agreement between the parties hereto dated August 4, 1999
(the "Letter Agreement") and attached hereto as Exhibit A.
If a dollar limit is stated in the applicable SOW for T&M Services,
the limit shall be deemed an estimate for GE's budgeting and Modem
Media's resource scheduling purposes; after the limit is expended,
Modem Media will continue to
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[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
provide the Services on a T&M and GE agrees that Modem Media will be
paid for such additional Services unless such estimate was deemed to
be a firm limit as stated in a SOW.
2. Invoicing and Payment
Modem Media shall invoice GE monthly, or, according to local Modem
Media practice if outside of the US, unless otherwise expressly
specified in the applicable SOW. Charges shall be payable within
forty-five (45) days firm of receipt of invoice. Notwithstanding the
previous sentence, GE shall pay pass through costs and third party
costs within 30 days of receipt of invoice from Modem Media if Modem
Media's payment terms for such charges are less than 45 days. GE
shall issue a purchase order, or alternative document acceptable to
Modem Media, on or before commencement of Services under the
applicable SOW.
3. Incidental Expenses
Upon prior written agreement of the parties, appropriate travel,
administrative, and out-of-pocket expenses incurred by Modem Media
in connection with the Services performed shall be invoiced and
reimbursed by GE to Modem Media. Modem Media acknowledges that, when
approved by GE, any such incidental expenses incurred by Modem Media
for which Modem Media will be reimbursed by GE shall be in
accordance with GE's general policies for such expenses. A copy of
such policies is attached herewith as Exhibit B.
4. Third Party Software
Without the express written authorization of an applicable SOW,
Modem Media shall not acquire any license in Third Party Software
for the development, of incorporation into, or use of the GE
Property. Prior to acquiring any Third Party Software that shall
cost GE more than ten thousand dollars ($10,000) in the aggregate
and under the foreseeable deployment contemplated in the applicable
SOW, Modem Media shall verify to the extent commercially practical
with GE that GE does not have any existing license to such Third
Party Software under which Modem Media can utilize such Third Party
Software at no additional expense to GE. If GE does not have any
license to the required Third Party Software, any Third Party
Software that will cost greater than ten thousand dollars ($10,000)
shall be specifically approved by GE in the applicable SOW or
relevant Change Order. Unless otherwise noted, license fees for
Third Party Software that are less than ten thousand dollars
($10,000) per copy are not included in the payments to Modem Media
under any SOW and will be the responsibility of GE
Further, Modem Media will identify in all applicable SOWs any Third
Party Software which may be used in the development of (or may need
to be used by GE in the operation or modification of) the GE Web
Site for which Modem Media cannot grant to GE the rights set forth
in Section D. 2. below. Except to the extent described in a SOW or
otherwise agreed by GE and the Third Party Software licensor, Modem
Media represents and warrants (to the extent reasonably foreseeable
by Modem Media) that there are and will be no royalty terms
applicable to Modem Media's or GE's use of such Third Party Software
in work product made for hire, including GE Property, pursuant to
any SOW under this Agreement. Modem Media shall assign to GE all
licenses and sublicenses to
Third Party Software executed by Modem Media for the purpose of
performing the tasks contemplated by any SOW and necessary for the
operation of any Work or the GE Property as reasonably foreseeable
under any SOW. Modem Media shall provide to GE, on terms identical
to those granted to Modem Media by third parties, a sub-license to
use any third party computer code routine that is made part of any
Work or GE Property provided under any SOW.
GE shall set forth all GE standard software and hardware platforms
that may be relevant to any SOW, including all Third Party Software
licenses relating thereto, and Modem Media shall work with GE to
ensure that, whenever possible, such standard software and platforms
are taken into consideration during the design and development of
the GE Property and its specifications.
5. Taxes
The charges do not include taxes. If Modem Media is required to pay
any federal, state, country or local taxes based on the Services
provided under this Agreement, the taxes shall be billed to and paid
by GE; this shall not apply to taxes based on Modem Media's income.
C. GE and Modem Media Obligations
1. GE support of Modem Media Services Engagements: GE acknowledges that
the timely provision of and access to office accommodations,
facilities, equipment, assistance, cooperation, complete and
accurate information and data from its officers, agents, and
employees, and suitably configured computer products, where such
computer products are identified in writing by Modem Media and
acknowledged in writing by GE in an appropriate SOW, may be
essential to the performance of any Services and that Modem Media's
ability to complete any Services may be dependent upon same. If, for
the performance of Services, GE is to provide computer products in
addition to those previously obtained by GE, such additional
computer products will be agreed upon by the parties and identified
in writing in the applicable SOW. If any of the aforementioned items
essential to Modem Media's performance of the Services are not
provided or provided in such a way that Modem Media is unable to
perform the Services, Modem Media's Project Manager shall so inform
GE in writing, including the relevant specifics and details. GE
acknowledges that Modem Media's ability to provide services as set
forth in an SOW may be affected if GE does not provide reasonable
assistance as set forth above.
2. Modem Media support of Services Engagements Modem Media acknowledges
its obligations to provide reasonable assistance and cooperation to
GE in order to perform any Services and that GE's ability to benefit
from the provision of Services may be dependent upon same.
3. Project Management GE business units shall designate Project
Manager(s) who shall be principally responsible for providing
direction for Modem Media's provision of Services to GE business
unit projects, as initiated by particular SOWs. Such Project
Manager(s) shall assist Modem Media to facilitate an efficient
delivery of Services.
4. Resource Changes. GE, in its reasonable discretion, may request that
Modem Media remove a particular consultant who is providing Services
under this Agreement and applicable SOW if GE reasonably believes
that such consultant is not providing Services as warranted and
Modem Media, after notice, has been unable to resolve performance
issues relative to such consultant. Modem Media shall pay the costs
of familiarizing the replacement consultant with the project and GE
agrees that time deadlines and cost estimates, if any, may require
adjustment as a result of replacing a consultant. GE may request to
interview and approve any replacement consultant prior to such
consultant's commencement of Services for GE; GE's approval shall
not be unreasonably withheld.
5. Change Orders. Any change in the specified Scope of Work in an SOW
that would have a material impact to either party on the fixed or
estimated SOW cost or SOW schedule must be mutually agreed upon by
the parties in writing. Modem Media consent should be obtained if
any change in GE's system environment (software or hardware) will
impair Modem Media's ability to perform the Services. Modem Media's
standard Change Order Procedures may be used to document these
changes.
D. INFRINGEMENT, WARRANTY, REMEDY, LIMITATION OF LIABILITY, INSURANCE
1. Infringement:
Modem Media represents and warrants that it has the authority or has
obtained the appropriate license or transfer rights for all elements
incorporated into any Deliverable or work for hire prepared for GE
pursuant to this Agreement. Modem Media further represents and
warrants that it has the authority to grant such rights
Each party ("Provider") will defend and indemnify the other party
("Recipient") against a claim that any information, design,
specification, instruction, software, data, or material furnished by
the Provider ("Material") and used by the Recipient in connection
with either the provision or the receipt of the Services infringes a
copyright or patent provided that: (a) the Recipient notifies the
Provider in writing within thirty (30) days of the claim; (b) the
Provider has sole control of the defense and all related settlement
negotiations; and (c) the Recipient provides the Provider with the
assistance, information, and authority reasonably necessary to
perform the above; reasonable out-of-pocket expenses incurred by the
Recipient in providing such assistance will be reimbursed by the
Provider.
The Provider shall have no liability for any claim of infringement
resulting from: (a) the Recipient's use of a superseded or altered
release of some or all of the Material if infringement would have
been avoided by the use of a subsequent unaltered release of the
Material which is provided to the Recipient; or (b) any information,
design, specification, instruction, software, data, or material not
furnished by the Provider.
In the event that some or all of the Material is held or is believed
by the Provider to infringe, the Provider shall have the option, at
its expense, (a) to modify the Material to be non-infringing; (b) to
obtain for the Recipient a license to continue
using the Material; or (c) to require return of the infringing
Material and all rights thereto from the Recipient. If Modem Media
is the Provider and such return materially affects Modem Media's
ability to meet its obligations under this Agreement and applicable
SOW, then GE may, at its option and upon thirty days' prior written
notice to Modem Media, terminate the applicable SOW and shall be
entitled to recover the fees paid by GE for that portion of the
Material and for those Services provided to develop the Material
which GE cannot reasonably use as a consequence of Modem Media's
provision of infringing Material. If GE is the Provider and such
return materially affects Modem Media's ability to meet its
obligations under this Agreement and applicable SOW, then Modem
Media may, at its option and upon thirty days' prior written notice
to GE, terminate the applicable SOW and GE shall pay Modem Media for
the Services rendered through the date of termination on a T&M or
percent of completion basis as applicable under the SOW. This
Section D.1 states the parties' entire liability and exclusive
remedy for infringement.
2. Warranty:
Modem Media represents and warrants that it is the sole owner of, or
has obtained appropriate license, use and/or transfer rights from
the rightful owner of all elements incorporated into all Services
and work product made for hire including GE Property prepared by
Modem Media for GE pursuant to this Agreement and any SOW.
Modem Media further represents and warrants that such rights have
been obtained (or will be obtained, as appropriate) for all elements
incorporated into all Services and work product made for hire
including GE Property under all applicable laws for such enforceable
legal and intellectual property rights including, but not limited to
copyrights, patent rights, trademark rights, trade secret rights,
privacy rights and publicity rights-whether such elements are text,
databases, musical works, sound recordings, images, audiovisual
works, software or other digital audio, visual, graphical or other
content elements. In each case such rights will be obtained by Modem
Media for GE for the known, anticipated, or reasonably foreseeable
use by GE contemplated by any SOW pursuant to this Agreement.
Modem Media further represents and warrants that it has the full
power and authority to grant the rights herein granted to GE without
the further, future or conditional consent of any other person or
party.
Modem Media warrants that its Services hereunder will be performed
by qualified individuals in a professional and workmanlike manner
conforming to generally accepted industry standards and practices,
and Modem Media's consulting methodology and/or such other
methodology(s) as may be mutually agreed upon by the parties. Modem
Media further warrants that unless otherwise agreed to by the
parties in writing, all such development by Modem Media on behalf of
GE shall be in compliance with Modem Media development guidelines
and Modem Media best practices and in conformance with release
compatibility considerations for other Modem Media applications,
whether commercially developed, or developed specifically as GE
Property under this Agreement.
The foregoing warranty is exclusive and in lieu of all other
warranties, whether express or implied, including the implied
warranties of merchantability and fitness for a particular purpose.
In order to receive warranty remedies, GE must report deficiencies
in the Services to Modem Media in writing within five days of
learning of such deficiency but in no event later than 90 days of
performance of T&M Services and in the case of fixed price Services
no later than 90 days of delivery of the GE Property.
3. Year 2000 Compliance Warranty
In addition to any other warranties and representations provided by
Modem Media to GE, whether pursuant to this Agreement or by law,
Modem Media represents and warrants that any Services, work for hire
and GE Property provided pursuant to an SOW and (a) any product(s)
and/or maintenance and support services, as provided by Modem Media
hereunder, including, without limitation, each item of hardware,
software, firmware, content element, Programs, Subroutines, and
Tools and/or Utilities; any system, equipment, or products
consisting of or containing one or more thereof; and any and all
enhancements, program upgrades, customizations, modifications shall
be Year 2000 Compliant at the time of delivery and at all times
thereafter and in all subsequent updates or revisions of any kind,
and (b) Modem Media's supply of Services and GE Property to GE shall
not be interrupted, delayed, decreased, or otherwise affected by
dates prior to, on, after or spanning January 1, 2000.
For purposes of this Agreement, Year 2000 Compliant means that (1)
the Services and GE Property accurately process, provide and/or
receive date data (including without limitation calculating,
comparing, and sequencing), within, from, into, and between
centuries (including without limitation the twentieth and
twenty-first centuries), including leap year calculations, to the
extent that other information technology, used in combination with
the Services and GE Property, properly exchanges date data
(including without limitation calculating, comparing, and
sequencing), and (2) neither the performance nor the functionality
nor your supply to GE of the Services will be affected by dates
prior to, on, after, or spanning January 1, 2000.
The functionality of said Services and GE Property to ensure
compliance with the foregoing warranties and representations shall
include, date data century recognition, calculations that
accommodate same century and multi-century formulae and date values,
and date data interface values that reflect the century. In
particular (i) no value for current date will cause any error,
interruption, or decreased performance in the operation of such
Services and GE Property, (ii) all manipulations of date-related
data (including, but not limited to, calculating, comparing,
sequencing, processing, and outputting) will produce correct results
for all valid dates, including when used in combination with other
products to the extent that other information technology, used in
combination with the Services and GE Property, properly exchange
date data, (iii) date elements in interfaces and data storage will
specify the correct century to eliminate date ambiguity without
human intervention, including Leap Year calculations, (iv) where any
date element is represented without a century, the correct century
will be
unambiguous for all manipulations involving that element, (v)
authorization codes, passwords, and zaps (purge functions) should
function normally and in the same manner prior to, on, after and
spanning January 1, 2000, including, without limitation, the manner
in which they function with respect to expiration dates and CPU
serial numbers.
If at any time the Services and GE Property are found, by GE, not to
be Year 2000 Compliant, then, in addition to any other obligation of
Modem Media under the law, pursuant to this Agreement, at equity, or
otherwise, at no additional charge to GE, Modem Media shall, by no
later than thirty (30) days after receipt of a report of
noncompliance from GE, render the Services Year 2000 Compliant, and
shall thereafter distribute such corrected version to GE, and, at
GE's option, install such corrected version for GE, all free of
charge. In doing so, Modem Media shall not require GE to make any
changes to the Services except to install or have installed any
changes provided by Modem Media, shall not require or cause to be
made any changes to GE's data unless GE in its sole discretion
approves such changes, and shall not require or cause to be made any
changes to any other product or service that GE uses in its business
operations. If, as a result of a Year 2000 warranty claim by any
other of Modem Media's customers, Modem Media generally releases a
version of hardware, software, firmware, Programs, Subroutines, and
Tools and/or Utilities in response to such warranty claim, then
Modem Media shall make such version(s) available to GE at no charge.
If the performance Modem Media's obligations as set forth above are
not commercially feasible, then Modem Media's liability as to the
remedy of any deficiencies of this Year 2000 Compliant warranty
provision shall be to repair or replace the non-conforming Product.
Notwithstanding anything herein to the contrary, the liability of
Modem Media for a breach of Modem Media's Year 2000 Compliant
representation and warranty shall be limited to an amount not to
exceed two (2) times the value of the SOW related to the breach of
this warranty set forth in Section D3. This Section D.3 states the
parties' entire liability and exclusive remedy for breach of Y2k
warranty.
MODEM MEDIA SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL OR INDIRECT DAMAGES OR LOST PROFITS, INCLUDING LOSS OF
DATA for breach of this warranty set forth in Section D3. Modem
Media makes no warranties (whether written, verbal, implied or
inferred) concerning the Year 2000 readiness of any third-party
services or information technology relied upon, licensed or
subcontracted from others in connection with the Services; provided,
however, that Modem Media will not use any third party materials
without obtaining a Year 2000 Warranty on behalf of GE. In the event
Modem Media cannot obtain a warranty for any third-party materials,
Modem Media will promptly inform GE. If Modem Media cannot obtain a
Year 0000 Xxxxxxxx for a third party material on behalf of GE, such
third party material will treated in the same manner as if it cost
above $10,000 for purposes of Section B4, Third Party Software,
above.
Any statute of limitations that might be applicable to Modem Media's
Year 2000 Compliant warranty and representation shall not accrue or
begin to run until the
later of January 1, 2000 or the time when such statute of
limitations would otherwise accrue or begin to run, and, with
respect to any claim based on any failure of the Services to be Year
2000 Compliant, Modem Media shall not assert any defense based on or
alleging the passage of time from the Effective Date of this
Agreement to January 1, 2000.
4. Exclusive Remedy for Breach of Warranty: Except for the warranties
set forth in Sections D1 "Infringement", and D3, "Year 2000
Warranty", for any breach of the above warranty, GE's exclusive
remedy, and Modem Media's entire liability, shall be the
re-performance of the Services. If Modem Media is unable to
re-perform the Services as warranted, GE shall be entitled to
recover the fees paid to Modem Media for the deficient Services and
for those Services provided under an applicable SOW arising from or
related to the deficient Services which GE cannot reasonably use as
a consequence of Modem Media's inability to perform the Services as
warranted.
5. Limitation of Liability: In no event shall either party be liable to
the other party for any indirect, incidental, special or
consequential damages, or damages for loss of profits, revenue,
data, or use, incurred by either party or any third party, whether
in an action in contract or tort, even if the other party or any
other person has been advised of the possibility of such damages.
Modem Media's and GE's liability for damages hereunder shall in no
event exceed the amount of fees paid and payable by GE under an
applicable SOW for the relevant Services. In no event shall the
foregoing limitation limit either party's liability to the other
party for direct damages resulting from the following: (i) any
violation by one party of the other party's intellectual property
rights, or (ii) either party's disclosure of the other party's
Confidential Information, or (iii) personal injury, or (iv) tangible
property damage; nor shall said foregoing limitation apply to a
Modem Media's indemnity obligation under the first paragraph of
Section D.1 "Infringement" of this Agreement nor to shall said
forgoing limitation apply to Section D3, "Year 2000 Warranty",. As
used above, the term "tangible property" shall not include software,
documentation, and/or data files.
6. Insurance: During the performance of Services under this Agreement,
Modem Media shall provide and maintain minimum insurance coverage as
follows:
(a) Worker's Compensation and employees liability, per statutory
requirements;
(b) Comprehensive General Liability insurance including contractual
liability coverage with the following limits in equivalent units of
the local currency:
Bodily Injury: Each Person $1,000,000 USD
Each Occurrence $1,000,000 USD
Property Damage: Each Accident $1,000,000 USD
Aggregate $2,000,000 USD
Upon GE's request, Modem Media shall provide GE with a certificate
of insurance completed by its insurance carrier certifying that
minimum insurance coverage as required above are in effect.
E. ADDITIONAL TERMS
1. Term and Termination: This Agreement shall commence on its Effective
Date and shall remain in effect for a period of fifteen (15) months
from July 1, 1999 ("the Effective Date").
GE may terminate this Agreement if Modem Media is in material breach
of this Agreement after having Repeatedly Failed ("Repeatedly
Failed" shall mean on more than two occasions) to materially perform
the Services defined in one or more SOWs in a manner required by
this Agreement or a SOW; provided that GE has given Modem Media
written notice upon the occurrence of each such failure, which
notice shall specify each such failure, and provided further that
Modem Media has not cured each such failure within 30 days of each
notice. GE may also terminate this Agreement if Modem material
breach for any other reason and has not cured the breach within
thirty (30) days' written notice specifying the breach.
Modem Media may terminate this Agreement as to a particular major
Business Unit of GE if the major Business Unit is in material breach
of the Agreement and has not cured the breach within thirty (30)
days' written notice specifying the breach. Except for any material
breach by Modem Media for Repeated Failures, consent to extend the
cure period shall not be unreasonably withheld, so long as the
breaching party has commenced cure during the thirty-day notice
period and pursues cure of the breach in good faith. If the other
party shall have become insolvent or bankrupt, admitted in writing
its inability to pay its debts as they mature or taken any action
for the purpose of entering into winding-up, dissolution,
bankruptcy, reorganization or similar proceedings analogous in
purpose or effect thereto, or any such action shall have been
instituted against it and such party shall have acceded thereto or
such action shall not have been dismissed or stayed within sixty
(60) days of the institution thereof, or any order shall have been
made by any competent court or any resolution shall have been passed
for the appointment of a liquidator or trustee in bankruptcy or such
party shall have appointed or suffered to be appointed any receiver
or trustee of the whole or any material part of its assets or
business or shall have entered into any composition with its general
creditors. In any such event the other may terminate this Agreement
at any time after such event by giving notice or may suspend or
cancel it obligations for services or payment during the
continuation of any such event.
In the event that within fifteen months after the Effective Date
hereof substantially all of the assets of Modem Media are acquired
by a third party, or that all or substantially all of the capital
stock of Modem Media is acquired by a third party, GE shall have the
right to terminate this Agreement. An assignee of either party, if
authorized hereunder, shall be deemed to have all of the rights and
obligations of the assigning party set forth in this Agreement.
Termination of this Agreement shall not limit either party from
pursuing any other remedies available to it, including injunctive
relief. Termination shall not relieve GE of its obligation to pay
(I) for work performed, Services rendered and Modem Media's expenses
in connection with any SOW and this Agreement, and (ii) all charges
that have accrued prior to such termination to the extent that such
charges have a) been previously approved in writing by GE and b)
such charges, are assignable to GE and without any additional
assignment penalty or cost to GE. The parties' rights and
obligations under Sections A, B, C, and D shall survive termination
of this Agreement. After termination and upon GE's request, Modem
Media shall return to GE any GE data, records, or other materials,
provided that GE has furnished Modem Media with a list of the data,
records, and other materials to be returned.
2. Rights to Developments
(a) "GE Property" shall mean all tangible GE Property (i.e., any GE
Property in written, electronic or other documentary form, including
tape or disk) provided to GE under this Agreement and/or applicable
SOW except for: (i) any software program(s) and documentation owned
or distributed by Modem Media that are developed prior to or outside
of the scope of this Agreement and/or applicable SOW ("Programs");
(ii) any Modem Media high level macro-language or CASE-generated
subroutines that are used in developing or that are embodied in the
GE Property ("Subroutines") (excluding any GE Confidential
Information); and (iii) any Tools or Utilities previously developed
by or on behalf of Modem Media as generic utility software.
As used in the preceding sentence, "Tools" and/or "Utilities" shall
refer to software code and/or a portion of code that: (i)
accelerates the pace of application development; or (ii) accelerates
the data conversion process.
(b) Modem Media shall develop GE Property as a work made for hire (i.e.
GE shall own the copyright and all other intellectual property
rights to the GE Property), and Modem Media upon creation of such GE
Property automatically assigns, and agrees to assign without further
consideration, the copyright and all other intellectual property
rights to all such GE Property. Modem Media will provide GE with the
source code for the GE Property. Upon written agreement by GE, at
GE's sole and exclusive discretion, and for such consideration as GE
and Modem Media may agree to in writing, Modem Media may request to
acquire the nonexclusive right to use and distribute the copyrighted
GE Property.
(c) Modem Media retains all right, title, and interest, including all
copyrights and patents, in any preexisting Programs, Subroutines,
and Tools and/or Utilities owned by Modem Media. Modem Media grants
to GE and subsidiaries of GE a worldwide, nonexclusive,
nontransferable, royalty-free, perpetual, irrevocable internal use
license to use, copy, and modify such Subroutines and Tools and/or
Utilities that are incorporated into the GE Property. Nothing in
this paragraph shall be deemed to expand or restrict the rights
granted for Programs under the applicable licensing.
4. Nondisclosure: By virtue of this Agreement, the parties may have
access to information that is confidential to one another
("Confidential Information"). Confidential Information shall be
limited to any Modem Media program licenses, the GE Property,
Subroutines, Tools and Utilities, and all information that would
reasonably be considered confidential, including but not limited to
GE's employees, organization, activities, policies, or software
developed or licensed by GE, products and including any written
reports, findings, conclusions,
recommendations, or reporting data and analysis prepared by Modem
Media and provided to GE under this Agreement. It is the intent of
this Section that Modem Media not disclose to any third party any
information it learns concerning the business of GE in the
performance of Services hereunder without the express written
consent of GE. GE shall use commercially reasonable efforts to
disclose to Modem Media employees only that information which is
necessary for the performance of this Agreement.
A party's Confidential Information shall not include information
that (a) is or becomes a part of the public domain through no act or
omission of the other party; or (b) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the
other party either directly or indirectly from the disclosing party;
or (c) is lawfully disclosed to the other party by a third party
without restriction on disclosure; or (d) is independently developed
by the other party. Results of benchmark tests run by GE may not be
disclosed unless Modem Media consents to such disclosure in writing.
The parties agree, both while the Services are being performed under
the applicable SOW and for a period of two years after the earlier
of cessation of Services under or termination of the applicable SOW,
to hold each other's Confidential Information in confidence. The
parties agree not to make each other's Confidential Information
available in any form to any third party or to use each other's
Confidential Information for any purpose other than the
implementation of this Agreement. Each party agrees to use the same
degree of care that it uses to protect its own confidential
information of a similar nature and value, but in no event less than
a reasonable standard of care, to ensure that Confidential
Information is not disclosed or distributed by its employees or
agents in violation of the provisions of this Agreement. Each party
represents that it has, with each of its employees who may have
access to any Confidential Information, an appropriate agreement
sufficient to enable it to comply with all of the terms of this
Section D.4.
5. Publicity: Except as otherwise required by law, neither party shall
release information with respect to the existence or terms of this
Agreement or an amendment or any other document thereto or use the
name of the other in publicity releases or advertising without
securing the prior written consent of the other.
6. Compliance with GE's Policies
6.1 Safety Policies. Modem Media agrees to use reasonable efforts
to cause any consultant who provides Services under this
Agreement to comply when on GE's premises with GE's reasonable
standard safety policies that GE communicates to such
consultant, to the extent that such policies are applicable to
the site where such consultant is providing Services.
6.2 Drug Abuse Policies. Modem Media will advise any consultant
who provides Services under this Agreement of GE's policy,
exclusively when providing services where drug screening is
mandatory pursuant to governmental regulations, to require an
initial drug screen prior to the commencement of the
assignment and, further, to require a drug screen at
any time during the assignment either (i) if the GE believes
in good faith that the consultant is under the influence of an
illegal substance, or (ii) as a consequence of an accident
caused by or involving the consultant on GE's premises during
the performance of this Agreement and likely to have been
related to the consultant's use of an illegal substance. Any
drug screens shall be performed by GE (or a company hired by
GE) at GE's expense.
6.3 Other Policies. GE may supply any consultant who provides
Services under this Agreement with copies of its Policies
20.2, Equal Employment Opportunity; 20.4, Ethical Business
Practices; 20.5, Complying with the Antitrust Laws; and 30.5,
Avoiding Conflicts of Interest. If GE supplies such consultant
with such policies, Modem Media agrees to use reasonable
efforts to cause such consultant to comply with such policies
to the extent that such policies are applicable to the
activities conducted by the consultant in performing the
Services.
7. Relationship between the Parties: Modem Media is an independent
contractor; nothing in this Agreement shall be construed to create a
partnership, joint venture, or agency relationship between the
parties.
Nothing in this Agreement shall be interpreted or construed as
creating or establishing the relationship of employer and employee
between GE and either Modem Media or any employee or agent of Modem
Media. Each party will be solely responsible for payment of all
compensation owed to its employees, as well as federal and state
income tax withholding, Social Security taxes, and unemployment
insurance applicable to such personnel as employees of the
applicable party. Each party shall bear sole responsibility for any
health or disability insurance, retirement benefits, or other
welfare or pension benefits (if any) to which such party's employees
may be entitled. Each party agrees to defend and indemnify the other
against any claims that the indemnified party has failed to pay
compensation, tax, insurance, or benefits for employees of the
indemnifying party; provided that (a) the indemnified party notifies
the indemnifying party in writing within thirty (30) days of the
claim; (b) the indemnifying party has sole control of the defense
and all related settlement negotiations; and (c) the indemnified
party provides the indemnifying party with the assistance,
information, and authority reasonably necessary to perform the
above; reasonable out-of-pocket expenses incurred by the indemnified
party in providing such assistance will be reimbursed by the
indemnifying party.
Anything to the contrary in this Agreement notwithstanding, the
parties hereby acknowledge and agree that GE shall have no right to
control the manner, means, or method by which Modem Media performs
Services pursuant to this Agreement. Rather, GE shall be entitled
only to direct Modem Media with respect to the elements of services
to be performed by Modem Media and the results to be derived by GE,
to inform Modem Media as to where and when such services shall be
performed, and to review and assess the performance of such Services
by Modem Media for the limited purposes of assuring that such
Services have been performed in accordance with this Agreement.
Notwithstanding the above, where a SOW specifies that Modem Media is
to buy media on behalf of GE, Modem Media is appointed as GE's agent
for the
purpose of such media buys and GE agrees to be primarily liable for
such media buys to the extent such Services were approved in a SOW.
8. Nonsolicitation: Modem Media and GE agree that during the
performance of Services under the applicable SOW, neither GE nor
Modem Media shall solicit for employment or retention as an
independent contractor any employee or former employee of the other
who provided any Service pursuant to any applicable SOW. "Solicit"
shall not be deemed to include advertising in newspapers or trade
publications available to the public. In the event that one of the
aforementioned entities solicits an employee of the other in
violation of this paragraph, the entire liability of the soliciting
entity and the exclusive remedy for the nonsoliciting entity shall
be payment of ten thousand dollars ($10,000) to the nonsoliciting
entity by the soliciting entity.
9. Nonexclusivity: This Agreement is nonexclusive, and GE may contract
with other entities to perform services related to or within the
Scope of Work set forth in an SOW under this Agreement, so long as
other services providers are not competitors of Modem Media.
10. Notice: All notices, including notices of address change, required
to be sent hereunder shall be in writing and shall be deemed to have
been given when mailed by first class mail to the GE Project Manager
at the address in the applicable SOW, with a copy to GE Company,
Corporate Initiatives Group Counsel, 0000 Xxxxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 (if to GE), or to the Modem Media
Project Manager at the address in the applicable SOW, with a copy to
Modem Media at 000 Xxxx Xxxxxx, Xxxxxxx XX 00000 (if to Modem
Media).
11. Waiver: The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent
default or breach. Except for actions for nonpayment or breach of
either party's intellectual property rights, no action, regardless
of form, arising out of this Agreement may be brought by either
party more than one year after the party discovered, or should have
discovered, the basis for the cause of action.
12. Force Majeure: Neither party shall be in default or otherwise liable
for any delay in or failure of its performance under this Agreement
where such delay or failure arises by reason of any Act of God, or
any government or any governmental body, acts of the common enemy,
the elements, strikes or labor disputes, or other similar or
dissimilar cause beyond the control of such party.
13. Export Administration: Each party agrees to comply with all relevant
export laws and regulations of the United States ("Export Laws") to
assure that neither any software deliverable, if any, nor any direct
product thereof is (1) exported, directly or indirectly, in
violation of Export Laws or (2) is intended to be used for any
purposes prohibited by the Export Laws, including without
limitation, nuclear, chemical, or biological weapons proliferation.
14. Assignment/Subcontractors Except for an assignment and delegation to
a successor in interest to substantially all of a party's stock or
assets, neither party may assign any rights or delegate any duties
under this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld. This Agreement shall be binding upon the
heirs, successors, legal representatives and valid assigns of the
parties.
15. Compliance with Laws: Modem Media warrants that its Services
hereunder will be performed in strict accordance with all applicable
law, regulations, codes and standards of government agencies or
authorities having jurisdiction.
16. Quality: The parties acknowledge that Modem Media's willingness and
ability to provide certain Services at a higher level of quality
than Modem Media's warranty stated in Section C.2 of this Agreement
is important to GE. In as much as the quality level required by GE
for Services will vary from project to project, the parties
acknowledge that the provision of particular Services by Modem Media
under this Agreement will be based upon the provisions, if any,
specified in the applicable SOW (e.g. the application of appropriate
Modem Media resources for the timely delivery of Services consistent
with the applicable project plans stated in the SOW). The parties
acknowledge that any additional quality level warranty and any
particular penalties or liquidated damages which may be applicable
to specific Services, will be limited to those provisions
specifically enumerated and agreed upon by the parties in the
respective SOW.
17. Entire Agreement: This Agreement constitutes the complete agreement
between the parties and supersedes all previous agreements or
representations, written or oral, with respect to the Services and
GE Property, described herein. In the event of any conflict between
the terms of this Agreement and the Letter Agreement, the Letter
Agreement shall prevail. In the event of any conflict between the
terms of this Agreement and any SOW, this Agreement shall prevail.
This Agreement may not be modified or amended except in a writing
signed by a duly authorized representative of each party. It is
expressly agreed that any preprinted terms and conditions of GE's
purchase order shall be superseded by the terms and conditions of
this Agreement.
The Effective Date of this Agreement shall be July 1, 1999.
General Electric Company: Modem Media.Xxxxx Xxxxx, Inc.:
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxx Xxxxx
Manager, Technology President and COO
EXHIBIT A
to the
MASTER SERVICES AGREEMENT
August 9, 1999
Xx. Xxxxxxx Xxxxxxxx
Manager, Corporate Marketing Communications
General Electric Corporation
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxxxxxx:
I am writing this letter in order to establish a framework whereby Modem Media .
Xxxxx Xxxxx, Inc. ("MMPT") and General Electric Corporation ("GE") will agree on
the terms of a mutually rewarding business arrangement. MMPT and GE are
currently in the process of negotiating definitive agreements whereby (a) MMPT
will grant certain Warrants for MMPT Common Stock to GE and (b) MMPT will
provide various Services to GE under a Master Services Agreement. In connection
with those agreements, GE commits to provide $12 million in Performance Revenue
(as defined below) to MMPT over a 15-month period beginning July 1, 1999 (the
"Commitment"). In connection with those negotiations, MMPT and GE desire to
reflect their mutual intent with respect to the definition of, and calculation
of, $12 million of Performance Revenue to MMPT, which terms are as follows:
1. Performance Revenue shall equal all revenue recognized by MMPT and any of
its wholly owned foreign subsidiaries, in accordance with US GAAP and
MMPT's past accounting practices consistently applied, as a result of
Services performed by MMPT or such subsidiaries for GE or any of its
subsidiaries or majority owned joint ventures. GE recognizes that MMPT's
affiliate in Sao Paulo, Brazil is not a subsidiary of MMPT and
accordingly, this arrangement will not apply to the work performed by that
office. However, any disputed invoice will not be included in the
calculation of Performance Revenue unless and until such dispute its
mutually resolved by the parties. Within 30 days after the conclusion of a
calendar quarter, the parties will confirm the Performance Revenue
achieved through that quarter.
GE acknowledges that in connection with providing the Services, MMPT will
from time to time engage in activities in which the costs are
passed-through to GE and are not recognized as revenue to MMPT. For
example, when MMPT purchases media space from websites, MMPT acts as GE's
agent and purchases such space on GE's behalf and GE is directly liable to
the media property for such costs. The direct costs to purchase such space
will be billed to GE by MMPT upon placement of the insertion order. Other
"pass through" costs may
include but are not limited to travel and living expenses, hardware, and
software. Such pass through costs or other third party costs will not be
considered Performance Revenue. However, time spent by personnel to
provide such Services will be considered part of the Performance Revenue
to the extent consistent with MMPT past practices consistently applied.
2. All rates charged by MMPT and any of its subsidiaries will be based on the
attached Rate Card. This Rate Card includes [XXXXX]. Performance Revenue
shall be based on the net revenue recognized, after the[XXXXX] but before
the [XXXXX] in MMPT's revenues a result of the issuance of the Warrants.
This rate will be fixed for Services performed from [XXXXX]. Thereafter,
MMPT's standard rates shall apply [XXXXX]; provided, however, in no event
shall such standard rates exceed [XXXXX]. The parties agree that if MMPT
is requested to perform Services in a hyper-inflationary country, they
will work together in good faith to adjust the attached Rate Card to
reflect the economic circumstances in that country.
3. A full description of the Services to be provided by Modem Media to GE,
and the compensation therefore, will each be set forth on a Statement of
Work. These Services may include the design and development of various
internet and intranet websites, the planning, preparing, and placing of
advertising/marketing, general consulting on issues related to the
Internet and on-line commerce, including systems and process, research,
Website development, maintenance and expansion, media planning and buying
and any development work related to any such Service. Notwithstanding the
foregoing, if a proposed project is estimated to be less than [XXXXX] or
the Service requested is from a location of a GE affiliate such that the
provision of the Services are impracticable, MMPT shall have the option to
decline to provide such Services. If MMPT decides not to provide such
Services under those circumstances, the estimated Performance Revenue that
would have been recognized relative to such Services shall not be included
in calculation the Commitment.
4. All Performance Revenue for Services commencing after July 1, 1999 will be
included for purposes of calculating the Commitment.
5. If MMPT cannot perform a requested Service due to a conflict with one of
its clients, such requested Service, and the revenue that would have been
recognized to perform such Service, will not be included in calculating
the Commitment.
6. During the 15-month period, GE will use its best efforts to ensure that
its request for Services is proportionally allocated over such 15-month
period and across various regions. The parties expect that the Performance
Revenue in 1999 will not be greater than [XXXXX]. As such, if the scope
and value of any project is large or the timing or service location of any
project is impracticable, the parties will work together to discuss
staffing and timing of such projects. If, after such discussion, MMPT
cannot commit to providing such Services due to the scope or timing of the
project, MMPT may decline performing such additional Services and, the
estimated Performance
----------
[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Revenue that would have been recognized will not be included in
calculating the Commitment. The parties agree to work together to discuss
the timing and scope of such projects.
7. If GE exceeds the Commitment during the 15-month period, GE will not be
entitled to any additional Warrants.
8. If, at the end of the 15-month period, the Performance Revenue is less
than $12 million, GE will make a cash payment to MMPT for such difference
within 30 days of the expiration of such 15-month period and any
outstanding invoices shall also be due on such date.
9. GE shall have the right to terminate as provided in the Master Services
Agreement. In the case of a valid termination, GE will no longer be
obligated to meet its Commitment nor will MMPT be obligated to provide the
Services at a [XXXXX].
10. MMPT acknowledges that GE has certain commitments to other service
providers, such as iXL and Proxicom. GE will use its best efforts to
ensure that before MMPT is given the opportunity to present its
capabilities to provide a Service on a project, GE will have determined
that it is not obligated to award such project to one of the other
companies to satisfy its commitments.
11. From time to time, MMPT may be required to make presentations to GE in
order for GE to determine whether MMPT will be awarded a particular
project. If MMPT is not awarded the project, MMPT will not be compensated
for the time spent on such presentation. However, once GE orally advises
MMPT that it was awarded the project, time spent by MMPT developing the
scope of work with GE, will be compensated by GE.
MMPT and GE agree that the effectiveness of this letter agreement is
contingent upon the parties executing and delivering definitive agreements
(the "Definitive Agreements"), reflecting the terms and conditions of the
issuance of the Warrants, and the terms and conditions upon which the
Services will be provided, in form and substance satisfactory to both
parties. The businesses relationship will be governed by the Master
Service Agreement, substantially in the form attached hereto.
MMPT and GE will use their best efforts to negotiate and enter into the
Definitive Agreements and to consummate the transactions contemplated
thereby as soon as practicable.
----------
[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
The existence of this letter agreement and the Definitive Agreements shall
remain strictly confidential, except to extent MMPT is required by law to
issue a press release or disclose in its public filings letter agreement
or the Definitive Agreement.
If this letter reflects your understanding, please sign both copies,
return a set to me and maintain one for your records.
Sincerely,
/s/ Xxxxxx Xxxxx
President and COO
Accepted and Agreed
This 9 day of August, 1999
General Electric Corporation
/s/: Xxxxxxx Xxxxxxxx
Manager, Corporate Marketing Communications
EXHIBIT B
to the
MASTER SERVICES AGREEMENT
GE TRAVEL and LIVING POLICIES
Travel & Living Guidelines for Corporate Employees
Revised April 1999 - Revisions shown in red
--------------------------------------------------------------------------------
Before you plan any trip or meeting, use the Bullet Train Screen:
o Think first! Ask why?
o Is this trip necessary? Is this meeting necessary? Do I really have
to go?
o Do I have other options?
--------------------------------------------------------------------------------
o Use of GE Travel Center (GETC) and GE Corporate Card:
All travelers are required to use the GETC and the GE Corporate Card for
all business-related travel arrangements and expenses. Personal travel
arrangements may not be booked via the GETC. The Corporate Card should be
used for business related travel expenses only. The Corporate card may not
be used for personal expenses or personal cash advances.
o Submission & Approval Requirements:
o Travelers are expected to submit expense reports within five (5) days
of end of trip. IRS regulations require the imputing of income on
uncleared corporate card balances. Failure to submit timely expense
reports will also result in suspension of corporate card privileges.
o Receipts are required for all corporate card items and for cash items
of $15 or more.
o Designated managers will receive monthly statements from the GE Travel
Center in order to review and approve the appropriateness of trips and
reasonability of expenses for each employee.
o Transportation
o Air Travel
o Coach class is required for all flights within North America,
within Europe, and within Asia-Pacific (for flights originating in
those respective regions).
o Coach class is strongly recommended for all flights between North
America and Europe and between North America and the northern
portion of South America.
For these flights, because of the combination of longer
distances and the potential for unusual timing or
circumstances, the ultimate decision between coach and
business class remains with the traveler. It is expected that
the choice of business class will be limited.
o Business class is allowed for flights beyond the above "coach
zone", e.g., North America to Asia-Pacific.
o Flights must be taken on Preferred airlines designated by the GETC,
unless Preferred airlines are not available.
o Officer pre-approval is required for any exception to the above
service class guidelines.
o Employees may retain credits from frequent traveler programs.
However, travel plans, routing requirements, etc., should not
result in additional expense to the Company nor require an increase
in travel time during regularly assigned working hours.
o The cost of upgrading an airline ticket to another class is not
reimbursable.
o Meetings
o Utilize GETC Meeting Planning Service for all Company meetings
involving 10 or more air fares.
o Consultant/Contractor Travel
Work with your finance representative:
o Consultants and contractors who travel regularly for GE should
complete a non-employee travel profile and use the GETC for all
GE-related travel arrangements.
o Components using consultants who travel infrequently (1 - 5 times a
year) or when scheduling interviews with external candidates should
make the travel arrangements through the GETC by using a Mastercard
Special Purpose Account.
o Reservations
o Make your own travel reservations and when possible schedule
meetings to allow for travel during off-peak hours.
o Take the "best buy" air fare recommended by the agent.
o Book tickets as early as possible.
o Use teleconferencing and/or videoconferencing to minimize travel
costs.
o Minimize number of employees taking same trip, e.g., to
trade shows, conferences, etc.
o Consider non-refundable fare for frequent trips to the same
location.
o Consider staying over on Saturday night to obtain lower air fare
(Company will reimburse hotel and meal costs if the total cost is
lower).
o Ground Transportation
o Use hotel/airport shuttle services when practical.
o For car rental, use the Company-designated agency, Hertz. When not
available, use National.
o Book smallest rental car practical for traveler's purpose.
When using your personal vehicle, you will be reimbursed @
$.31 per mile, which covers depreciation, insurance, and gas.
o For New York airports private limos are not allowable expenses,
except:
o When traveling outside normal working hours (very early in the
morning or late in the evening) or when there is a safety
concern;
o When there are at least two passengers and a private limo would
be a lower cost option than other alternatives such as a rental
car or scheduled limo service with Red Dot.
o From Fairfield use Hertz or Red Dot Limo Service.
o Minimize Company costs on rental cars by: declining Collision
Damage Waiver in the U.S. (covered under GE contract programs);
returning rental cars with a full tank of gas.
o Living, Meals & Other Expenses
o Lodging
o Book all hotels through the GETC at the time air reservations are
made.
o Reservations will be made at GE Preferred full service, moderate or
economy properties, depending on the business requirements.
o Personal Meals
o Meals are reimbursable provided you are on Company business away
from your normal place of business with an overnight stay.
o On a day trip, meals eaten outside your regularly assigned work
hours are reimbursable.
o Other Reimbursables
o Nominal gifts in lieu of meals and/or lodging at friends' or
relatives' residences are reimbursable as long as the cost to GE is
lower.
o Gratuities for bellhop, taxi, meals, etc.
o Highway tolls and parking fees.
o Laundry and dry cleaning services if the employee is away for five
consecutive days.
o Telephone and fax expenses incurred on behalf of the Company,
including essential calls to home.
o Use your Dial Comm Key Card for all long distance phone calls.
o Review "in lieu of" situations with your financial representative.
o Dues, Initiation Fees & Memberships
o Dues and initiation fees for professional organizations are not
reimbursable, except in those instances where memberships are primarily
for the benefit of the Company. Company officer approval is required for
all fees.
o Country club memberships require approval by the Corporate Executive
Office for reimbursement.
o Business Meals & Business Meetings
o Costs incurred in connection with meetings are reimbursable, provided
there is a legitimate business purpose, e.g., meeting with key
suppliers, meeting on quality with GE business representatives, etc.
o Expense account must be submitted by the highest level employee at the
meeting.
o Expense account must indicate date, time, place, business purpose and
business relationship of attendees.
o Exercise good judgment and adhere to customer policies when incurring
expenses to entertain customers and GE associates for business purposes.
Refer to the GE Integrity Guide for Company policy.
o Discourage GE to GE entertainment and meals unless the business purpose
is clearly defined.
o Consider offering only non-alcoholic beverages at GE-sponsored meetings.
o Expenses Not Reimbursable
The following items are considered to be of a personal nature, and
therefore are not normally reimbursable by the Company.
o Airline club membership fees
o Clothing or toiletries, except if caused by airline delay or overbooking
of airplane reservations
o Cost of an employee's family member traveling with the employee, except
when the family member's presence serves a business purpose and the
costs have Corporate Officer approval
o Cost of a circuitous or side trip for personal convenience or benefit
o Fines traffic violations
o Gifts to employees or their families of flowers, money, merchandise, or
services
o Insurance on personal property; personal travel insurance
o Items for personal use, such as: hairstyling, shoe shine, magazines,
newspapers, movies (including in-room movies), shows, and sporting
events (unless for entertainment on behalf of the Company) and other
similar items
o Loss or theft of personal property (e.g., clothes, jewelry, etc.), cash
advance, personal funds, or tickets
o Maintenance or repair of personal property (e.g., home and grounds)
while out of town on Company business
o Parking or garage charges at the employee's regularly assigned place of
business
o Personal credit card fees or charges incurred as a result of third-party
misuse of lost credit cards
o Traveling expense between home and regularly assigned place of business
o Unusual Expenses
o In the event there are valid business reasons to incur expenses not
reimbursable under these guidelines, these expenses may be reimbursed
with Company Officer approval.
o Review unusual circumstances with your finance representative in
advance.
For clarification, contact the GE Travel Center or your financial
representative.
Modem Media.Xxxxx Xxxxx, Inc.
1999 Rate Card
[XXXXX]
[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
