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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.21
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of the 27th day
of October, 1997 (the "Effective Date"), by and between Ameritech Mobile
Communications, Inc., a Delaware corporation ("Ameritech"), and SCC
Communications, Corp., a Delaware corporation (the "Consultant," and with
Ameritech, sometimes referred to collectively herein as the "parties" or
individually as a "party").
WITNESSETH
WHEREAS, Ameritech has retained the services of Consultant in connection
with Ameritech's plan to provide 911 emergency service to its cellular telephone
customers to conduct an initial market survey, including among other things, a
market analysis, network inventory and network design recommendations as further
described in Exhibit A to this Agreement (the "Initial Market Survey") and
Consultant desires to perform such services for Ameritech;
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth herein and for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as FOLLOWS:
1. APPOINTMENT OF CONSULTANT.
Ameritech hereby retains Consultant to conduct the Initial Market Survey
described in Exhibit A to this Agreement for Ameritech (the "Project").
Consultant hereby accepts such appointment subject to the terms and conditions
set forth herein.
2. PERFORMANCE AND DUTIES.
a) Consultant agrees to perform the services required hereunder
in a diligent and professional manner no later than forty-five
(45) days from the Effective Date, provided, however, that
information that is requested by Consultant in connection with
the Project is provided to Consultant by Ameritech within a
reasonable amount of time. Consultant further agrees to devote
such time, energy and attention to the performance of such
services as are reasonably necessary to complete them in the
manner contemplated hereby. In addition to the foregoing,
Consultant shall perform the services under this Agreement in
compliance with all applicable laws, rules and regulations and
further agrees to observe the business
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policies, procedures and security requirements of Ameritech
(as defined herein). While on the premises of Ameritech,
Consultant will be responsible for any personal injury or
property damage caused by the negligent or intentional acts of
Consultant, its employees, agents or representatives.
b) Consultant acknowledges and agrees that Ameritech may, from time to
time, expand the scope of services required from Consultant under this
Agreement. To the extent that such changes affect the time of
performance or the cost of services to be performed by Consultant,
Ameritech and Consultant shall amend the provisions hereof upon mutually
agreeable terms.
3. CONSULTANT'S FEE AND INVOICING
As a Non-Recurring Engineering fee ("NRE"), Ameritech agrees to pay to
Consultant an aggregate amount of , which
shall be paid within forty-five (45) days receipt of an invoice which shall be
provided by Consultant to Ameritech upon the completion of the Project in a
manner satisfactory to Ameritech or January 9, 1998, whichever is later. Payment
of the NRE fee shall be considered payment in full for the Initial Market
Survey. In the event that Ameritech requests, in its sole discretion, that
Consultant provide SCP services at a later date, an additional NRE fee in the
amount of will be charged by Consultant to
Ameritech for additional market survey services related to such SCP services.
Ameritech shall not reimburse Consultant for travel or any other expenses
incurred by Consultant.
4. TERMINATION.
Subject to the provisions hereof, this Agreement shall commence on the Effective
Date set forth above and shall terminate upon completion of the Project.
Notwithstanding the foregoing, this Agreement may be terminated for cause, if
one party breaches this Agreement and fails to cure such breach within ten (1 0)
calendar days after delivery of written notice of such breach in which case, the
injured party may then terminate this Agreement immediately upon delivery to the
other party of an additional written termination notice.
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5. STATUS OF CONSULTANT.
a) It is expressly understood and agreed by the parties to this
Agreement that Consultant is acting as an independent
contractor under the Agreement and shall have no right or
authority to make any contracts or commitments for or on
behalf of Ameritech, to sign or endorse on behalf of Ameritech
any contracts, advertisements or instruments of any nature or
to enter into any obligation binding upon Ameritech.
b) The parties further acknowledge and agree that as an
independent contractor, Consultant shall not be entitled to
any of the benefits, fringe or otherwise, available to
Ameritech employees. In addition to the foregoing, the parties
agree that no taxes will be withheld from the fees remitted to
Consultant and no Internal Revenue Service Forms W2 or
comparable federal, state or local tax returns shall be issued
by Ameritech with respect to the arrangements contemplated by
this Agreement (except for such returns and tax forms as may
be required pursuant to federal, state and local tax laws
applicable to consultants and independent contractors).
6. PERSONNEL.
a) Xxxxxx Xxxxx and such other person or party as Ameritech may
from time to time designate in writing, shall be available to
consult with and assist Consultant in the performance of the
Project. Notwithstanding anything herein to the contrary, no
representative from Ameritech shall exercise any control or
direction over Consultant or Consultant's employees, if any,
in the performance of the services required under this
Agreement.
b) Consultant agrees that Xxxx Xxxxxxx shall act as Consultant's
project manager with respect to the Project. Any changes to
Xx. Xxxxxxx'x Project staff will be subject to the prior
review of Ameritech.
7. AFFILIATES.
a) With respect to Ameritech, an "Affiliate" shall mean any
entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under
common control with Ameritech. "Affiliate" also means any
successor to
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Ameritech, whether by change of name, dissolution, merger,
consolidation, reorganization or otherwise.
b) With respect to Consultant, an "Affiliate" shall mean any
entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under
common control with Consultant. "Affiliate" also means any
successor to Consultant, whether by change of name,
dissolution, merger, consolidation, reorganization or
otherwise.
c) With respect to an entity other than Ameritech or Consultant,
an "Affiliate" shall mean any entity that directly or
indirectly, through one or more intermediaries, controls or is
controlled by or is under common control with such entity.
"Affiliate" also means any successor to such entity, whether
by change of name, dissolution, merger, consolidation,
reorganization or otherwise.
8. CONFIDENTIAL INFORMATION.
a) Any information, including but not limited to, specifications,
drawings, computer programs, technical or business information
or other data in whatever form (hereinafter "Information"),
which is proprietary to Ameritech and furnished by Ameritech
to Consultant, whether in writing, orally or visually, under
or in contemplation of this Agreement or to which Consultant
has access from Ameritech through its performance hereunder
shall be considered confidential and shall be subject to the
following:
i) Consultant shall restrict disclosure of the Information to Consultant's
employees with a "need to know" (i.e., employees that require the
Information to perform their responsibilities in connection with this
Agreement) and shall not disclose it to any other person or entity
without the prior written consent of Ameritech;
ii) Consultant shall use the Information only for purposes of performing
under this Agreement;
iii) Consultant shall advise those employees who access the Information of
their obligations with respect thereto;
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iv) Consultant shall copy the Information only as necessary for those
employees who are entitled to receive it and shall ensure that all
confidentiality notices are reproduced in full on such copies; and
v) Unless the parties agree otherwise in writing, Consultant shall return
all copies of such Information to Ameritech at Ameritech's request.
b) Consultant recognizes and agrees that the unauthorized use or
disclosure of the Information would cause irreparable harm to
Ameritech for which it would have no adequate remedy at law, and
that an actual or contemplated breach of this Clause shall
entitle Ameritech to obtain immediate injunctive relief
prohibiting such breach, in addition to any other rights
available to it. This Agreement shall be deemed confidential
Information. The obligations herein contained shall expressly
survive the termination or expiration of this Agreement.
c) The Information shall not be considered confidential and shall
not be subject to the foregoing if Consultant can demonstrate
that the Information:
i) is or becomes available to the public through no breach of this
Agreement;
ii) was previously known by Consultant without any obligation to hold it in
confidence;
iii) is received from a third party free to disclose such Information without
restriction;
iv) is independently developed by Consultant without the use of Ameritech's
Information;
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v) is APPROVED FOR RELEASE BY written authorization OF Ameritech, BUT ONLY
TO THE EXTENT of such authorization;
vi) is required by law or regulation to be disclosed, but only to the
extent and for purposes of such required disclosure; or
vii) IS disclosed in response to a valid order of a court or lawful request
of a governmental agency, but only to the extent of and for the
purposes of such order or request, provided that Consultant first
notifies Ameritech of the order or request ten (1 0) days prior to
disclosure and permits Ameritech to seek an appropriate protective
order.
d) No Information furnished by Consultant to Ameritech hereunder
or in contemplation hereof shall be treated as confidential by
Ameritech unless specifically labeled as such by Consultant in
advance of its disclosure to Ameritech. In such event,
Ameritech shall safeguard and protect Consultant's
confidential Information in accordance with the provisions
above, except Ameritech may disclose such Information to its
employees and its Affiliates with a need to know.
9. RIGHT IN MATERIALS AND INDEMNITY.
a) The Initial Market Survey prepared by or for Consultant in the
course of performing services under this Agreement shall be
promptly furnished to Ameritech upon completion of the
Project. The Initial Market Survey shall be the exclusive
property of Ameritech, including title to copyright in all
copyrightable material (to the extent derived from employees
and subcontractors of Consultant), and may be used by
Ameritech in any manner whatsoever so long as such use is not
in violation of this Agreement; shall be considered a "work
made for hire" consistent with U.S. copyright laws; and shall
be deemed and treated by Consultant as Ameritech's
confidential Information as described in Section 7 of this
Agreement. If any such materials were previously copyrighted
by Consultant and not originally prepared hereunder,
Consultant hereby grants to Ameritech an unrestricted
royalty-free license to copy such materials and the rights to
sublicense such materials to its Affiliates. Such materials do
not include Consultant's own proprietary and confidential
Information and property including but not limited to source
code, databases and software systems not originally designed,
created or implemented for Ameritech. Consultant warrants that
all
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persons performing services hereunder are employees of
Consultant and the services performed and work product thereof
have been prepared by such employees within the scope of their
employment; or if not employees, Consultant has received from
such persons an assignment of copyright covering all services
performed hereunder. To the extent such materials shall not be
considered a "work made for hire," Consultant hereby assigns
all right, title, and interest in such materials to Ameritech.
Consultant agrees to cooperate with Ameritech and to execute
all documents reasonably necessary for the transfer,
maintenance and protection of these rights for the benefit of
Ameritech.
b) Consultant agrees to indemnify, defend and hold Ameritech
harmless against any claim, demand, cause of action, suit
liability, damage, loss, judgment, award, cost and expense
(including reasonable attorneys' fees and expenses) relating
to or arising out of a claim or assertion that any materials
produced or used by Consultant for Ameritech or otherwise
produced or used by Consultant in performing services
hereunder infringe or violate any patent, copyright or other
proprietary right (including, but not limited to,
misappropriation of trade secrets) of any third party.
Consultant shall defend and settle at its sole expense all
suits and proceedings arising out of the foregoing. No
settlement which prevents Ameritech from continuing to use
materials related to the services provided hereunder, shall be
made without Ameritech's prior written consent.
10. INSURANCE.
Consultant shall purchase and maintain general liability insurance as is
reasonable under the circumstances to protect the Consultant and Ameritech from
claims which may arise out of the Consultant's performance of services
hereunder. All such insurance shall be purchased from and issued by insurance
companies reasonably satisfactory to Ameritech. All such insurance shall name
Ameritech as an additional named insured. Certificates of Insurance, evidencing
such coverage, shall be provided to Ameritech upon request. The minimum coverage
and limits to be maintained by Consultant shall be written for not less than the
limits of liability specified by further agreement of the parties, or as
required by law, whichever is greater.
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11. PUBLICITY.
Consultant shall not prepare or distribute any news releases, articles,
brochures, advertisements, speeches or other information releases concerning
this Agreement and the activities performed hereunder without the prior written
consent of Ameritech. In addition, Consultant shall not use the "Ameritech" or
"Xxxx" name or xxxx (or any variation thereof) or refer to the Project, without
the prior written consent of Ameritech.
12. SUBCONTRACTING.
Consultant shall not, without the prior written consent of Ameritech,
subcontract any portion of the work required to be performed under this
Agreement.
13. INDEMNIFICATION.
a) Ameritech agrees that it will indemnify, defend and hold harmless
Consultant from and against claims, liabilities, obligations,
suits, judgments, damages, expenses or costs (including
reasonable attorneys' fees) (collectively, "Consultant's
Damages") which may be asserted against or incurred by Consultant
which arise out of Ameritech's performance or failure to perform
its obligations under this Agreement; provided, however, that the
foregoing indemnity shall not apply to Consultant's Damages
resulting from or relating to Consultant's negligence or
misconduct.
b) Consultant agrees that it will indemnify, defend and hold
harmless Ameritech from and against any and all claims,
liabilities, obligations, suits, judgments, damages, expenses or
costs (including reasonable attorneys' fees) (collectively,
"Ameritech's Damages") which may be asserted against or incurred
by Ameritech and which arise out of Consultant's performance or
failure to perform its obligations under this Agreement;
provided, however, that the foregoing indemnity shall not apply
to Ameritech's Damages resulting from or relating to Ameritech's
negligence or misconduct.
14. INCORPORATION OF EXHIBITS.
Each of the exhibits attached to this Agreement is by this reference
incorporated herein and made a part of this Agreement.
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15. HEADINGS.
The headings set forth herein are for convenience only and shall not be used in
interpreting the text of the sections in which they appear.
16. NOTICES.
Any notice or other communication required, permitted or desirable under this
Agreement, shall be sufficiently given if sent by United States mail, postage
prepaid, addressed as follows:
To Ameritech: Ameritech Mobile Communications, Inc. 0000 Xxxx
Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx Manager, Network Planning
with a copy to:
Ameritech Mobile Communications, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx
XXX. 0X000
Xxxxxxx Xxxxxxx, XX 00000
Attn: Legal Department
To Consultant: SCC Communications Corp.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy to:
SCC Communications Corp.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Contracts Manager
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or such other address as shall be furnished in writing by either party
to the other party. Any such notice or communication shall be deemed to have
been given as of the date so mailed.
17. ASSIGNMENT.
a) Neither party shall assign any right or obligation under this
Agreement without the other party's prior written consent. Any
attempted assignment shall be void, except that either party
may assign monies due or to become due to it, provided that
(a) the assigning party gives the other party at least ten
(10) days prior written notice of such assignment and (b) such
assignment does not impose upon the other party obligations to
the assignee other than the payment of such monies.
b) Notwithstanding the foregoing, Ameritech may assign this
Agreement, in whole or in part, to any of its Affiliates.
Consultant may assign this Agreement, in whole or in part, to
any of its Affiliates; provided, however, that Consultant may
not assign this Agreement to any entity that directly or
indirectly through that entity itself or one of its Affiliates
provides two-way cellular voice communication services or
other wireless communication or data services. Upon such
permitted assignment and assumption of liability thereto by
the assignee, the assignor shall be discharged of any
liability under this Agreement.
18. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement and understanding of the parties,
and there are no other prior or contemporaneous written or oral agreements,
undertakings, promises, warranties or covenants not specifically referred to,
attached to this Agreement or contained in this Agreement. This Agreement may be
amended, modified or terminated only by a written instrument signed by the
parties hereto.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of which shall
be considered one Agreement.
20. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois.
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21. BINDING EFFECT.
Except as otherwise stated herein, this Agreement shall be binding upon and
shall inure to the benefit of the parties' respective successors in interest and
assigns.
22. SURVIVAL.
Sections 8, 9, 11, 13 and 21 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, each of the parties has executed this Agreement.
AMERITECH:
CONSULTANT:
Ameritech Mobile
Communications, Inc.
SCC Communications Corp.
By: By:
Its: Its:
Date: Date:
