Exhibit 10.8
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
KMC TELECOM, INC.
AND
LUCENT TECHNOLOGIES INC.
PROFESSIONAL SERVICES AGREEMENT
BETWEEN KMC TELECOM, INC.
AND LUCENT TECHNOLOGIES INC.
THIS PROFESSIONAL SERVICES AGREEMENT NUMBER LNS970602JC dated September 4, 1997,
is made by and between Lucent Technologies Inc., a Delaware corporation, acting
through its Network Systems Group with offices at 000 Xxxx Xxxxxx Xxxx, Xxxxxx,
Xxx Xxxxxx 00000, hereinafter ("Lucent"), and KMC Telecom, Inc., a Delaware
corporation with offices at 0000 Xxxxx 000, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx
00000, hereinafter ("Customer").
1. TERM AND SCOPE
(a) For an initial period of three (3) years, beginning July 23, 1997 Lucent
will provide Professional Services ("Services") in support of service
requirements of Customer to its customers in the United States. At the
expiration of the initial three (3) year term hereof, this Agreement shall
extend automatically for an additional one (1) year term, unless either party
has given written notice of its desire to terminate not less than six (6) months
prior to the end of the initial term. The parties will meet not less than six
(6) months prior to the end of the extended term to negotiate further
extensions of the term.
(b) Services to be provided hereunder are set forth in the Statement of Work,
which is attached to and incorporated herein as Appendix A.
2. CHARGES
Charges for Services to be performed under this Agreement are as set forth in
Appendix A Section 2.
3. INVOICES AND TERMS OF PAYMENT
Lucent shall invoice Customer monthly for the Services listed in Appendix A.
For other services such as Call-Out Service, and Additional Operation Services
as defined in Appendix A, Lucent shall invoice for such other services as they
are performed or as soon thereafter as practicable. Invoices shall be
accompanied by details such as dates of Service, number of hours delivered, rate
per hour, employee's name and number. Customer shall pay the invoiced amounts,
less any disputed amount, within thirty (30) days from the date of Lucent's
invoice. Delinquent payments are subject to a late payment charge at the rate
of one and one-half percent (1-1/2 %) per month, or portion thereof, of the
amount due (but not to exceed the maximum lawful rate).
Any disputed amounts which are determined to be valid are due for payment based
upon the original invoice date and will be subject to a retroactive late payment
charge based on the original invoice date. Customer shall notify Lucent of any
disputed invoice within thirty (30)
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days from the date of the invoice. In the event the parties are unable to
resolve a payment dispute within thirty (30) days, either party may submit the
dispute to resolution pursuant to the clause DISPUTES RESOLUTION. Customer shall
not be subject to a late payment charge for good faith disputed invoice.
4. TAXES
Customer shall be liable for and shall reimburse Lucent for all taxes and
related charges however designated (excluding taxes on Lucent's net income)
imposed upon or arising from the provision of Services, or the transfer, sale,
license, or use of material, provided by Lucent. Taxes reimbursable under this
paragraph shall be separately listed on the invoice. Lucent shall not collect
the otherwise applicable tax if a valid tax exemption certificate is furnished
by Customer to Lucent. Lucent will be responsible for payment of Lucent
employees' taxes (i.e. FICA, state or federal income tax and all other related
labor taxes).
5. INDEPENDENT CONTRACTOR
All work performed by one party under this Agreement shall be performed as an
independent contractor and not as an agent of the other, and no person furnished
by the performing party shall be considered the employee or agent of the other.
The performing party shall be responsible for, and shall ensure that its
employees comply with all applicable laws, rules, and regulations while
performing work under this Agreement, or while present on the other party's
premises.
6. PERSONNEL & SUBCONTRACTORS
Lucent reserves the right to assign, reassign and substitute its personnel with
personnel having comparable qualifications at any time during the term of this
Agreement, provided that no such action shall result in an interruption of
Service
Lucent represents that it and its subcontractors performing Services are and
will continue to be experienced and qualified to perform the Services and all of
their respective obligations under this Agreement.
Customer shall have the right to interview and approve or reject the assignment
by Lucent of any subcontractors to positions of on-site work, provided that
Customer may not exercise its right to reject any subcontractors on grounds
unrelated to job performance or in a manner that obligates Lucent to commit an
unlawful act. If Customer does not exercise its right to interview and approve
or reject any assignment of a subcontractor within fifteen (15) days of
submittal of a resume by Lucent to Customer, then Customer agrees to the
assignment of such subcontractor. At Customer's request, Lucent shall provide
Customer with the resume of a subcontractor whom Lucent intends to designate to
perform on-site work. Customer shall treat the resume and interview information
as "Lucent Confidential Information". Customer agrees not to make an offer of
employment to any subcontractor rejected by Customer.
Customer may notify Lucent when it finds any Lucent on-site subcontractor
unacceptable to provide Services at a Customer site for any lawful reason,
including Customer's reasonable determination that subcontractor is not
qualified to perform the work to which subcontractor is assigned. Upon receipt
of such notice Lucent shall, within ten (10) business days, or earlier if
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Customer specifically so requests, review the matter with Customer and take
appropriate action as necessary. Lucent shall have a reasonable time to replace
any such subcontractor.
During the term of this Agreement and for a period of one (1) year from the
termination of this Agreement or a (Statement of Work), the parties agree not to
employ, make an offer of employment to, or enter into a consulting relationship
with any employee, or full time consultant of the other party who is directly
involved with the delivery of Services under this Agreement, except upon the
prior written consent of the affected party, provided that the foregoing
prohibition shall not be construed to apply to a former employee of the other
party who has not been employed by such other party for at least one year (6
months in the case of lay-off).
Lucent reserves the right to subcontract any or all of the Services to qualified
and experienced third-parties and use independent consultants provided that the
use of subcontractors and/or consultants will not cause any interruption of
Services to Customer. Services supplied by such third parties shall be subject
to the terms and conditions of this Agreement as if supplied directly by Lucent
and Lucent shall be responsible for the Services performed. Any such
subcontracting shall not relieve Lucent from its liability (if any) or
obligation under this Agreement and Lucent shall be responsible for the acts,
defaults and neglects of any subcontractor, its agents, servants, or workers as
fully as if they were the acts, defaults or neglects of Lucent, its agents,
servants or workers. Lucent shall require that its subcontractors comply with
the provisions of this Agreement, insofar as they apply to the subcontracted
work. Should any subcontractor fail to perform in a satisfactory manner the work
undertaken by it, Lucent shall investigate and take any appropriate action.
Nothing contained in this Agreement shall create any contractual relationship
between any subcontractor of Lucent and Customer and no subcontractor is
intended to be or shall be deemed a third party beneficiary of this Agreement.
Customer's site representative shall exercise no supervision over any personnel
furnished by Lucent or any subcontractor, but Customer's site representative
shall be available to Lucent for consultation and advice, as shall Lucent be
available to Customer regarding any problems with personnel furnished by Lucent.
Lucent will assign a team leader at it's Network Operations Center ("NOC") to
coordinate NOC Services with KMC.
7. FORCE MAJEURE
a) General
Neither party shall be held responsible for delay or failure in performance of
any part of this Agreement to the extent such delay or failure is caused by
fire, flood, explosion, war, strikes, embargo, government requirement, civil or
military authority, act of God, inability to secure material or transportation
facilities, act or omission of carriers or other causes beyond Lucent's or
Customer's control, provided, however, that in the event of delay or failure in
performance, the party first learning of such delay or failure shall inform the
other immediately, and if such delay or failure persists for a period of sixty
(60) days, either party may terminate this Agreement upon ten (10) days written
notice without liability for such termination except for payment of Services
provided and accepted up to the date of termination. Each party shall, with
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the cooperation of the other, exercise all reasonable efforts to mitigate the
extent of a delay or failure resulting from a Force Majeure condition.
b) NOC Recovery Plan
Lucent shall provide a recovery plan detailing Lucent's response if a Force
Majeure condition occurs at its NOC. Such recovery plan will be provided within
ninety (90) days of the effective date of this Agreement and incorporated as an
Appendix to this Agreement.
8. USE OF INFORMATION
All technical and business information and all software and related
documentation in whatever form recorded (all hereinafter designated
"Information") furnished to either party under or in contemplation of this
Agreement and designated as proprietary shall remain the property of the
furnishing party. Unless the parties otherwise agree in writing, such
Information: (i) shall be treated in confidence by the receiving party and used
only, in the case of Customer, for evaluation purposes or to install, operate,
and maintain the particular items for which the Information is initially ordered
and, in the case of Lucent , used only for the purposes for which furnished,
(ii) shall not be reproduced or copied in whole or in part, except as necessary
for use as authorized in this Agreement, and (iii) shall, together with any
copies thereof, be returned or destroyed when no longer needed, or may, if in
the form of software recorded on an erasable storage medium, be erased. The
above conditions do not apply to any part of the Information that is known to
the receiving party to be free of any obligation to keep in confidence.
9. WARRANTY
Lucent agrees to perform Services in a workmanlike manner and in accordance with
good usage and the highest business practices, standards and industry codes
prevailing in the telecommunications industries, and in compliance with all
applicable Federal, state and local laws, ordinances and regulations. If
Services performed by Lucent fail to meet the foregoing and if Customer
notifies Lucent to that effect within a thirty (30) day period commencing on the
of completion of the Service, Lucent will correct any defects and deficiencies
in a timely manner and render a pro-rated refund or credit based on the original
charge for the Services.
THIS SERVICES WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS OR
IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY
SHALL BE LUCENT'S OBLIGATION TO MAKE CORRECTIONS AND RENDER A CREDIT OR REFUND
AS SET FORTH ABOVE IN THIS WARRANTY. THIS EXCLUSIVE REMEDY SHALL NOT LIMIT
CUSTOMER'S RIGHT TO BRING AN ACTION FOR BREACH OF CONTRACT INCLUDING BREACH OF
THIS WARRANTY.
10. INSURANCE
Both parties shall maintain during the term of this Agreement the following
insurance coverage: as well as all other insurance required by law in the
jurisdictions where the work is performed: (1) Worker's Compensation and related
insurance as required by law; and, (2) employer's liability insurance with a
limit of at least five hundred thousand ($500,000.00) dollars for each
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occurrence; (3) comprehensive general liability insurance, with a limit of at
least one million ($1,000,000.00) dollars per occurrence; (4) comprehensive
motor vehicle liability insurance with limits of at least one million
($1,000,000.00) dollars for bodily injury including death, to any one person,
three hundred thousand ($300,000.00) dollars for each occurrence of property
damage, and one million ($1,000,000.00) dollars for any one occurrence. Each
party shall furnish the other prior to the start of the work, if requested by
the other, certificates or adequate proof of the insurance required by this
clause. Each party shall notify the other in writing at least thirty (30) days
prior to cancellation of or any material change in the policy. Notwithstanding
the above, each party shall have the option where permitted by law to self-
insure any or all of the foregoing risks.
11. LIMITATION OF LIABILITY
SUBJECT TO SECTION 11d BELOW, CUSTOMER'S EXCLUSIVE REMEDIES AND THE ENTIRE
LIABILITY OF LUCENT, ITS AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS
SUPPLIERS FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF CUSTOMER OR ANY OTHER ENTITY
ARISING OUT OF THIS AGREEMENT, OR THE PERFORMANCE OF ANY SERVICES, WHETHER IN AN
ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE,
INDEMNITY, OR STRICT LIABILITY, SHALL BE AS FOLLOWS:
(a) CUSTOMER'S REMEDIES AND LUCENT'S LIABILITY FOR TANGIBLE PROPERTY DAMAGE TO
CUSTOMER'S PROPERTY AND FOR PERSONAL INJURY CAUSED BY LUCENT'S ACTS OR OMISSIONS
SHALL BE LIMITED TO THE AMOUNT OF THE AWARDED DAMAGES TOGETHER WITH THE ACTUAL
OUT-OF-POCKET COSTS AND EXPENSES INCURRED BY CUSTOMER IN CONNECTION WITH
DEFENDING ANY CLAIMS OR ACTIONS BROUGHT AGAINST CUSTOMER AS A RESULT OF LUCENT'S
LIABILITY HEREUNDER; PROVIDED, HOWEVER, THAT LUCENT SHALL ALSO BE LIABLE TO
CUSTOMER FOR AWARDED PUNITIVE AND EXEMPLARY DAMAGES WHICH RESULT FROM LUCENT'S
TORTIOUS CONDUCT;
(b) CUSTOMER'S REMEDIES AND LUCENT'S LIABILITY FOR THE PERFORMANCE OR
NON-PERFORMANCE OF THE SERVICE(S) OR CLAIMS THAT IT DOES NOT CONFORM TO THE
WARRANTY ARE LIMITED TO THE REMEDIES SET FORTH IN THE WARRANTY CLAUSE;
(c) CUSTOMER'S REMEDIES AND LUCENT'S LIABILITY FOR CLAIMS OTHER THAN AS SET
FORTH ABOVE AND IN THE CLAUSE ENTITLED "INDEMNITY" WILL BE LIMITED TO THE AMOUNT
OF THE DIRECT DAMAGES NOT TO EXCEED $1,000,000 INCLUDING COUNSEL FEES AND
COSTS.
(d) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, HOWEVER SUBJECT TO
LUCENT'S LIABILITY FOR AWARDED PUNITIVE AND EXEMPLARY DAMAGES FOR TORTIOUS
CONDUCT UNDER SECTION 11(a) ABOVE, NEITHER CUSTOMER NOR LUCENT, ITS AFFILIATES
AND THEIR EMPLOYEES, AND AGENTS AND ITS SUPPLIERS SHALL BE LIABLE TO EACH OTHER,
ANY OTHER PERSON OR COMPANY FOR SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOSS ARISING OUT OF THE PROVISION OF THE SERVICES OR IN
ANY WAY ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION ARISING OUT
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OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT
LIABILITY, PATENT MATTERS OR ANY OTHER THEORY. THIS CLAUSE, 11 (d), SHALL
SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. EACH PARTY SHALL GIVE THE
OTHER PROMPT WRITTEN NOTICE OF ANY CLAIM, ANY ACTION OR PRECEDING AGAINST EITHER
PARTY MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE SERVICES ARE
RENDERED.
(e) NOTHING HEREIN SHALL BE CONSTRUED AS LIMITING EITHER PARTY'S RIGHT TO
BRING AN ACTION TO ENFORCE THE EXPRESS PROVISIONS OF THIS AGREEMENT.
12. CUSTOMER'S RESPONSIBILITIES
Throughout the term of this Agreement, Customer agrees to:
(a) Follow all Lucent's or relevant equipment manufacturer's applicable
installation, operation, administration, and maintenance instructions;
(b) Provide the proper environment, electrical, and telecommunications
connections as reasonably specified by Lucent or relevant equipment
manufacturer;
(c)Provide access at reasonable times to the Products to enable Lucent to
perform Services; Reasonable prior notification will be given when access is
required.
(d) Provide adequate communications facilities, workspace, and storage space for
Lucent spare parts;
(e) Have their representative at the equipment location during any Lucent
service activity on the premises. Customer or Lucent may be subject to
additional incurred time and material charges if Customer fails to have a
representative at the equipment location or fails to contact the other party
within (30) minutes of the agreed time;
(f) Maintain a procedure external to the software program(s) and host computer
for reconstruction of lost or altered files, data or programs to the extent
deemed necessary by the Customer.
(g) Provide test equipment and maintenance documentation sufficient for
maintenance of non- Lucent products that are listed in this Agreement; and,
(h) Assure that work done at the site by Customer or by others shall not
unreasonably interfere with Lucent's performance of Services.
13. MOVES AND MODIFICATIONS
Customer may move or modify any Product being maintained, but must promptly
notify Lucent in writing of such move or modification. Customer agrees to pay
reasonably demonstrated
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additional charges if the move or modification increases Lucent's costs or
expenses of providing maintenance Services.
14. MAINTENANCE NOT COVERED
This Agreement does not cover maintenance services required to repair damages,
malfunctions, or service failures caused by:
(a) Customer's failure to follow manufacturer relevant installation, operation
or maintenance instructions;
(b) Failure of a host computer, or other equipment or software not maintained
under this Agreement;
(c) Customer's abuse, misuse.
(d) Power failure or surges, lightning, fire, flood, pest damage, accident,
actions of third parties and other events outside Lucent's reasonable control or
not arising under normal operating conditions; and
(e) Maintenance repair performed by a party not authorized by Lucent.
Lucent may agree to perform such maintenance services on a time and materials
basis.
15. ASSIGNMENT
Except as provided below, neither party shall assign this Agreement or any right
or interest under this Agreement, nor delegate any work or obligation to be
performed under this Agreement (an "assignment"), without the other party's
prior written consent. Such consent shall not be unreasonably withheld or
delayed. Any attempted assignment in contravention of this shall be void and
ineffective. Nothing shall preclude a party from employing a subcontractor in
carrying out its obligations under this Agreement. A party's use of such
subcontractor shall not release the party from its obligations under this
Agreement.
Notwithstanding the foregoing, nothing herein shall preclude an assignment by
Customer, without the consent of Lucent, to an entity controlling, controlled by
or under common control with, or which acquires or succeeds to ownership of
substantially all of the assets and operations of Customer, or to its financing
parties for collateral security purposes (a "Permitted Assignment") provided,
however, that (a) a Permitted Assignment shall not include an assignment where
Customer is in material breach or default of this Agreement at such time as
Customer seeks to effectuate such assignment and such breach or default will not
be cured immediately upon giving effect to such assignment; and (b) a Permitted
Assignment shall not include an assignment by Customer to any party or entity
who (1) in the reasonable opinion of Lucent, does not have sufficient financing
in place or other financial resources sufficient to consummate the purchases
contemplated under this Agreement, or (2) is a manufacturer of
telecommunications products or a provider of related services in competition
with Lucent. In no event shall a Permitted Assignment operate to diminish the
rights (including, without limitation, relating to any purchase commitments) or
increase the obligations of Lucent under, this Agreement or any existing
agreement between
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Lucent and the assignee for the procurement of Products, Licensed Materials, or
Services available for procurement by Customer under this Agreement (a
"Pre-Existing Agreement") or to supersede any such Pre-Existing Agreement. In
the event of a Permitted Assignment to Customer's financing parties for
collateral security purposes, Lucent shall, at no out-of-pocket cost to Lucent,
cooperate with such parties in connection with the execution of collateral
assignment documents which are reasonably and customary in connection with
Customer's project financings.
For the purposes of this clause, the term "Agreement" includes this Agreement,
any subordinate agreement placed under this Agreement and any order placed under
this Agreement or subordinate agreement.
16. NONWAIVER
No waiver of the terms and conditions of this Agreement, or the failure of
either party strictly to enforce any such term or condition on one or more
occasions shall be construed as a waiver of the same or of any other term or
condition of this Agreement on any other occasion.
17. RELEASES VOID
Neither party shall require waivers or releases of any personal rights from
representatives of the other in connection with visits to its premises and both
parties agree that no such releases or waiver shall be pleaded by them or third
persons in any action or proceeding.
18. APPLICABLE LAWS
The construction and interpretation of, and the rights and obligations of the
parties pursuant to, this Agreement shall be governed by the laws of the State
of New York without reference the conflicts of law provisions. The parties
further agree to the jurisdiction of New York courts.
19. SURVIVAL OF OBLIGATIONS
The parties' rights and obligations that, by their nature, would continue beyond
the termination, cancellation, or expiration of this Agreement, shall survive
such termination, cancellation or expiration.
20. TERMINATION FOR CAUSE
Either party may terminate this Agreement if the other fails to perform or
observe any material term or condition of this Agreement and such failure shall
continue unremedied for thirty (30) calendar days after receipt of written
notice thereof. Neither party shall terminate this Agreement as result of a
dispute related to this Agreement if such dispute has been referred to
arbitration pursuant to Section 24, Arbitration, until such dispute has been
finally settled.
21. AUTHORIZED CUSTOMER CONTACTS
Only authorized Customer contacts listed in this Agreement shall contact the
Lucent Designated Support Center. Customer may change its authorized contact(s)
upon ten (10) days prior written notice to Lucent Customer hereby grants
authority to its authorized contacts to incur on its behalf
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Call-Out, Out-of-Coverage Hour charges, or Consultation Services which will be
billed to the Customer's Purchase Order identified in the Service Agreement,
unless otherwise provided.
22. NOTICES
All notices under this Agreement shall be in writing (except for requests for
services) and shall be addressed to the addresses set forth at the beginning of
this Agreement or to such other address as either party may designate by notice
pursuant hereto and whose telephone and facsimile numbers are listed below. Such
notices shall be deemed to have been given when received.
If to Customer: With copy to:
KMC Telecom Inc. Xxxxxx Xxxx & Xxxxxx LLP
Chief Financial Officer Xxxx Xxxxxx, Esq.
0000 Xxxxx 000, Xxxxx 000 000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
If to Lucent: With copy to:
Lucent Technologies Inc Lucent Technologies Inc
Contract Management, Network Systems Mr. J. Xxxxxxx Xxxxxxxx
I-85 & Mt. Hope Church Road Law Department
XxXxxxxxxxxx, Xxxxx Xxxxxxxx 00000 000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
23. HAZARDOUS MATERIALS/CONDITIONS
The Customer has the responsibility to inform, identify, correct, xxxx, monitor,
remove, and/or dispose of any hazardous materials or conditions prior to start
of on-site Service, If hazardous materials or conditions are found to affect
provision of Services, work stoppage or delay will occur until the site is no
longer injurious to Lucent's employees. Customer may be billed for additional
work effort or expenses arising out of such work stoppage or delay.
24. ARBITRATION:
If a dispute arises out of or relates to this Agreement, or its breach, the
parties agree to submit the dispute to arbitration governed by the United States
Arbitration Act, and judgment on the award may be entered in any court having
jurisdiction. Any such arbitration shall proceed before three (3) arbitrators.
The party invoking arbitration (the "Claimant Party") shall notify the other
party (the "Respondent Party") in writing (i) setting forth its basic position
in the dispute, (ii) requesting the Respondent Party promptly to appoint its
arbitrator and to notify the Claimant Party of such person's identity. The
Respondent Party shall within thirty (30) days thereafter appoint its own
arbitrator and immediately advise the Claimant Party in writing of the identity
of the arbitrator. If the Respondent Party has not notified the Claimant Party
within the thirty (30) days of the identity and appointment of its arbitrator,
such arbitrator shall thereupon, at the request of the Claimant Party, be
promptly appointed in accordance with the rules of the U.S. Arbitration Act.
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The two (2) arbitrators so appointed shall, within fifteen (15) calendar days
after the date as of which they have both been identified, select any person
agreeable to both of them to serve as the third arbitrator and chairman. If the
two (2) arbitrators appointed on behalf of the respective parties fail to agree,
as provided above, such third arbitrator shall promptly be appointed in
accordance with said rules. The arbitrators may determine issues of
arbitrability, but may not award punitive damages or limit, expand or otherwise
modify the terms of this Agreement. The parties, their representatives, other
participants and the arbitrators shall hold the existence, content and result of
arbitration in confidence.
25. INDEMNITY
Each party agrees to indemnify, defend and hold harmless the other party, any of
its affiliated companies, and all of their respective directors, officers,
employees, agents, representatives, servants, successors and assigns
("Indemnitees"), from and against all actions, causes of action, claims,
administrative proceedings, and demands, and all losses, liabilities, judgments,
decrees, fines, penalties, damages, obligations, expenses, amounts paid in
settlement and investigation and costs and charges of any kind, including but
not limited to, attorney's and investigation fees, including such fees incurred
to enforce this clause (collectively, "Claims"), relating in any way whatsoever
to, or arising from the following:
(1) any Claims involving any failure by indemnifying party or any of its
affiliates to comply with any law, statute, code, ordinance, regulation, rule or
order of any governmental or quasi-governmental body, in the performance of
either party's responsibility under this Agreement;
(2) any Claims on account of (i) injury to or death of persons or (ii)
damages to or loss of real or tangible personal property arising directly or
indirectly out of indemnifying party's acts or omissions under this Agreement;
(3) all taxes and fees, penalties and interest payable thereon, payable by
indemnifying party in connection with this Agreement;
(4) claims against Lucent relating to all laborers', mechanics' or
materialmen's liens upon Customer's facilities and/or any property of Customer
arising out of Services performed by Seller or by its subcontractors in
connection with this Agreement.
26. EXECUTION IN COUNTERPARTS
This Agreement may be executed in counterparts by the parties hereto, each of
which when so executed and delivered shall be an original, but both the
counterparts shall together constitute one and the same instrument. All
signatures need not appear on the same counterpart.
27. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable, such
holding shall not affect the remaining provisions of this Agreement, it being
the intent of the parties that the rights and obligations therein shall continue
despite, or to the extent not affected by, such holding.
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28. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement including all Appendices
listed below, supersede all prior oral or written understandings between the
parties with respect to the subject matter thereof and constitute the entire
agreement of the parties with respect to such subject matter. Such terms and
conditions shall not be modified or amended except by a writing signed by
authorized representatives of both parties.
Appendix A Statement of Work
Appendix B Definitions Statement of Work
Appendix C Non-Lucent Products
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly
authorized representatives on the date(s) indicated.
LUCENT TECHNOLOGIES INC. KMC TELECOM INC.
By: Xxxxxx X. Xxxxx By: Xxxxxxx Xxxxxxxx
-------------------------- ---------------------------
PRINTED PRINTED
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxx
-------------------------- ---------------------------
SIGNED SIGNED
Sales Director Chief Financial Officer and Secretary
TITLE TITLE
September 18, 1997 September 16, 1997
DATE DATE
Lucent/KMC Proprietary
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XXXXXXXX X
DEFINITIONS
CALL-OUT SERVICES: A) When requested by Customer, Call-Out Services are provided
on an availability basis and are billed at the rates identified in Appendix A,
Section 2. B) Rates are measured from the start of remote diagnostic assistance
or from time of dispatch until return to point of dispatch. C) Minimum billing
requirements apply and are identified in Appendix A, Section 2.
ADDITIONAL OPERATIONS SERVICES: Diagnostic assistance provided from product or
system specialists. Charges for Additional Operations Services are billed at
the rates identified in Appendix A, Section 2. Minimum charges for remote
diagnostics (voice or modem) are billed at the rates identified in Appendix A,
Section 2. If on-site visitation is required, minimum charges are billed for
eight hours plus incurred travel and living expenses.
EFFECTIVE DATE means the date that the Agreement is executed by the parties.
PRODUCT means systems and equipment provided by Lucent or other manufacturers
for which Lucent is providing Services hereunder; other manufacturers' products
are identified in Appendix C attached hereto.
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APPENDIX C
NON-LUCENT PRODUCTS
MANUFACTURER DESCRIPTION
Fujitsu FLM150 ADM
Fujitsu FLM600 ADM
Fujitsu FLM2400 ADM
Fujitsu FLM6 ADM
Tellabs Titan 5500S
Telcom Solutions DCD - LPR GPS Timing Receiver
Telcom Solutions DCD 523
Cumming Onan Power Plant Backup Generator with Automatic
Transfer Switch
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