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PAGES CONTAINING CONFIDENTIAL MATERIAL HAVE BEEN STAMPED "CONFIDENTIAL
TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN SEPARATELY FILED WITH THE
COMMISSION." THE REDACTED MATERIAL HAS BEEN BLACKENED OR MARKED WITH A STAR
(*).
EXHIBIT 10.25
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Services Agreement
THIS AGREEMENT, to be effective upon date of execution below, is entered
into by and between Champion Communication Services, Inc., ("Champion") a
Delaware corporation, whose principal place of business is located at 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 and K N Energy Services,
Inc., a Colorado corporation, doing business as K N Services, hereinafter
("K N") whose principal place of business is at 000 Xxx Xxxxxx Xxxxxx, P.O. Box
281304, Lakewood, Colorado 880228-8304, together who are hereinafter referred to
separately or jointly as "Party or Parties".
WHEREAS, K N Energy Services, Inc. has the expertise, experience and
ability to provide certain services such as, but not limited to, invoicing,
billing, collections, dispatch, telemarketing, customer service, maintenance
and repair; and
WHEREAS, Champion Communications is in the business of providing radio
communication services and wishes to purchase some or all of the services
provided by K N Energy Services, Inc.;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, it is agreed by and among the Parties as follows:
1. SERVICES PERFORMED
A. K N has agreed to perform certain services at its Customer
Services Center in Scottsbluff, NE. The services provided for by K N are set
forth in Exhibit A which is hereby referenced and incorporated herein.
B. Champion agrees and stipulates to perform certain services and to
pay for certain services provided by K N. The services and payments required by
Champion are set forth in Exhibit B which is hereby referenced and incorporated
herein.
2. K N is an independent contractor and as such, is responsible for the
salaries, fringe benefits, taxes, insurance and other payroll costs of K N and
any respective employees, contractors, subcontractors, and agents. To the
extent travel or other business expenses are incurred, K N is responsible for
such expenses, for those any respective employees, contractors, subcontractors,
and agents. All work performed and all tools used shall be at the direction of
K N, and shall be under K N's care, custody and control, not that of Champion.
All insurance, permits, licensing, including but not limited to liability and
worker's compensation insurance are the responsibility of K N. Certificates of
insurance shall be provided by K N upon request from Champion.
3. In order to allocate the respective responsibilities of KN and Champion
for liabilities arising under this Agreement, it is agreed between K N and
Champion that certain responsibilities and liabilities for personal injuries
and property damage arising out of the performance of this Agreement should be
allocated between them in order to avoid protracted litigation between K N and
Champion, including associated legal expenses, and so that insurance or self-
insurance may be arranged by each party as necessary to protect them against
these exposures to loss. The allocation of responsibilities and liabilities
between K N and Champion is as follows:
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a. Both parties agree to protect, defend, and indemnify and hold
harmless each other, its directors,officers, employees, agents,
and representatives or its invitee(s), from any and all loss,
damage and expenses including judgments and attorney's fees, by
reason of or growing out of bodily injury or death, property
damage, or claims of any nature or character in any manner
directly or indirectly connected with the manner of performing the
Services, violations of laws and regulations relating to the work,
or with acts or omissions of the each party or any of
its subcontractors, whether or not either Party is or is claimed
to be passively, concurrently or actively negligent, and
regardless of whether liability without fault is imposed or
sought to be imposed on one or more of the Indemnities, except to
the extent that such indemnification is void or otherwise
unenforceable under applicable law in effect on or validly
retroactive to the date of this Agreement. An additional
exception to this indemnification by each party shall be where
such loss, damage, injury, liability or claim is the result of
the sole active negligence or willful misconduct of one Party and
is not contributed to by any act of, or by any omission to perform
some duty imposed by law or contract on the other party, its
subcontractors, or that subcontractor's agents, representatives,
or employees.
b. Each party shall notify the other party immediately of any claim,
demand, or suit that may be presented to or served upon it by any
party arising out of or as a result of work performed pursuant
hereto, affording such other party full opportunity to assume the
defense of such claim, demand, or suit and to protect itself under
the obligations of this Section.
4. K N warrants that the services provided hereunder shall be substantially as
described in this Agreement and in accompanying materials. THIS WARRANTY IS
EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, AND K N DISCLAIMS, ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. It is further understood
that the provision of these services hereunder is dependent upon the continued
availability of communications facilities to K N and that K N cannot warrant
such availability. K N does not warrant that the operation of the services
provided for above in Paragraph 2 will be uninterrupted or error-free, and
Champion assumes the responsibilities to take adequate precautions against
damages to Champion's operation that would be caused by such interruption or
errors. K N makes no guarantee of problem resolution. K N personnel will make
best effort available to solve all problem issues, but ultimate responsibility
and liability for third party complaints shall remain with Champion.
5. This Agreement shall be in effect for a period of one year beginning on the
date of execution, unless earlier terminated pursuant to its terms. Either
party shall have the right to terminate this agreement upon thirty (30) days
notice to the other party with or without cause. This Agreement shall remain in
effect from year to year thereafter, unless terminated by either party pursuant
to Section 5. Thirty (30) calendar days prior to the end of the year term, K N
will provide Champion with a schedule of prices for services provided. Failure
of Champion to notify K N within ten (10) days after the date of mailing of its
disagreement with such pricing, shall mean such pricing shall be in effect for
the next year. Should the parties fail to agree to pricing changes prior to the
end of the contract term, the Parties can agree in writing to extend the old
terms for an additional periods of up to thirty (30) calendar days, or can
provide notice of termination of this Agreement. Notice for cause or pricing
changes must provide a written statement of the conditions that are considered
the alleged breach or reason for termination. Such notice must give the other
party the right to use reasonable efforts to meet the terms and conditions set
forth. Such notice must be in writing to the other party. Delivery of such
termination shall be deemed to be effective the earlier of receipt or three
days upon mailing.
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6. Notices and invoices required under this contract shall be effective the
earlier of receipt or three days after mailing and shall be sent to:
For KN For Champion
Xxx Xxxxxxxxx or Xxxx Xxxxxxxxxx (Name)
authorized representative Regional Business Mgr. (Title)
000 Xxxxxxxx ______________________ (Address)
Scottsbluff, NE 69363-1207 Scottsbluff, NE (City/State)
7. Termination of this agreement shall not terminate the obligations of payment
by Champion for services performed, or of K N to perform services paid for by
Champion to the satisfaction of Champion, or to pay for the costs incurred by
Champion or K N to get such work performed by others, unless both Parties agree
in writing to forego any remedies set forth in this Agreement.
8. This Agreement contains the entire Agreement between the Parties, and except
as stated herein, there are no oral promises, agreements, or warranties,
promises, obligations, assurances or conditions precedent or otherwise
affecting it. Insofar as the parties have had prior dealings, including the
negotiations and exchanges leading up to this writing, it is the intention of
the respective Parties to negate specifically any effect of any prior dealings
with respect to this Agreement and the transactions described in this
Agreement. Any modification of this Agreement must be signed by the Party
against whom such modification is demanded.
9. This Agreement shall bind and inure to the respective successors and assigns
of the Parties hereto. However, any assignment or attempted assignment, except
to an affiliate, or subsidiary of K N or Champion shall be void without the
prior written consent of the other party.
CHAMPION COMMUNICATION SERVICES, INC. K N ENERGY SERVICES, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ W. E. XXXXXX
-------------------------------- -----------------------------
Xxxxx X. Xxxxxx (Name) Xxxxxxx X. Xxxxxx
President (Title) Vice-President, Utility Services
Date: 5/3/96 Date:
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EXHIBIT A
1. Development of, in conjunction with Champion, all necessary
policies and procedures, and an implementation schedule for a plan
for K N to provide Champion with a method of providing its
customers with the means of ordering and receiving parts and
equipment designated solely by Champion for sale and delivery to
its customers, for dispatch of Champion service technicians, and
for billing services support. It is the intent of KN to have full
and complete implementation of such services no later than sixty
(60) business days after execution of this Agreement, except as
extended by the parties in writing. Implementation costs shall be
.
2. Availability of twenty-four hour, seven days a week, 365 days per
year telephonic customer service support for billing questions for
Champion customer telephonic requests on a dedicated 800 telephone
number in the states of Colorado, Kansas, Iowa, Nebraska, North
Dakota, South Dakota, Montana and Wyoming at a cost of
per call minute. Additional geographic areas for billing support
may be added by the Parties in writing, as set forth in Paragraph
1 A and B, from time to time.
3. Availability of twenty-four hour, seven days a week, 365 day per
year telephonic customer service support for providing Champion
customers, upon their request, on a dedicated 800 telephone
number, with appointments for repair, maintenance, replacement
from authorized Champion service technicians in the states
of Colorado, Kansas, Iowa, Nebraska, South Dakota, North Dakota,
Montana and Wyoming at a cost of . KN shall contact and
schedule appointments with such authorized service technicians,
and provide Champion customers with such information, but shall
not be responsible for the failure of such authorized
representatives to keep such appointments or provide services in
an adequate or workmanlike manner. Additional geographic areas for
dispatch services may be added by the Parties in writing, as set
forth in Paragraph 1 A and B, from time to time.
4. Availability of twenty-four hour, seven days a week, 365 day per
year telephonic customer service support for providing Champion
customers, upon their request, on a dedicated 800 telephone
number, with Motorola product ordering for Champion Communication
customers in the states of Colorado, Kansas, Iowa, Nebraska, South
Dakota, North Dakota, Montana and Wyoming at a cost of .
Additional geographic areas for Motorola product sales services
may be added by the Parties in writing, as set forth in
Paragraph I A and B, from time to time.
Training for K N personnel providing such services shall be
provided by Champion as set forth in Exhibit B, but the specific
specialists and availability of such specialists shall be
determined solely by KN, based on the number of trained
personnel requested by Champion pursuant to Exhibit B(a). If KN
fails to notify Champion of any problems concerning such requests
within five days after receipt
Confidential Treatment Requested
The Redacted Material Has Been
Filed With the Commission
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of such monthly notice, any additional personnel and training
costs shall be at KN's expense.
5. Provision of telephonic customer service surveys and additional
product information and sales for all Champion Customers every
three months, four times a year, upon request of Champion. Such
customer surveys and product information and sales shall be
provided in the states of Colorado, Kansas, Iowa, Nebraska, South
Dakota, North Dakota, Montana and Wyoming at a cost of .
Additional geographic areas for Motorola product sales services
may be added by the Parties in writing, as set forth in Paragraph
1 A and B, from time to time. All surveys and telephonic sales
shall be reviewed and approved by Champion prior to their use.
6. Work station space for one employee of Champion for a period of
no longer than One-Hundred Twenty (120) calendar days from the
date of execution of this Agreement. Benefits, salaries, worker's
compensation, and employment status of such person shall be
solely under the control of Champion.
7. Provision of written monthly summaries for the previous month by
the third business day of each month beginning June 3, 1996 of
customer contacts for dispatch, product sales, billing, and any
other customer requests.
8. Work requested by Champion not stated in this Exhibit A is not
included in any price as set forth in this Exhibit A. Any such
work shall be done at a price determined by KN, and agreed to by
Champion but all rights and obligations for such work shall be as
set forth in this Agreement.
9. To invoice Champion monthly for all services provided above.
10. The use of all dedicated telephone numbers provided for Champion
customer services by K N cease upon termination of this agreement,
and KN and Champion shall make arrangements for such telephone
numbers to remain for exclusive use by Champion after such
termination.
CONFIDENTIAL TREATMENT REQUESTED
THE REDACTED MATERIAL HAS BEEN
FILED WITH THE COMMISSION
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EXHIBIT B
1. Development of, in conjunction with KN, all necessary policies and
procedures, and an implementation schedule for a plan for K N to
provide Champion with a method of providing its customers with the
means of ordering and receiving parts and equipment designated
solely by Champion for sale and delivery to its customers, for
dispatch of Champion service technicians, for billing services
support and telephonic customer surveys. It is the intent of
Champion to have full and complete implementation of such services
no later than sixty (60) business days after execution of this
Agreement, except as extended by the parties in writing.
Implementation Costs to be paid by Champion shall be .
2. Monthly notice of the number of service specialists required, the
number of hours needed for Motorola Product Training, and to
request quarterly surveys from all Champion Customers. Such
notice must be provided to KN on the first day of each calendar
month for that month. If KN fails to notify Champion of any
problems concerning such requests within five days after receipt
of such monthly notice, any additional personnel and training
costs shall be at KN's expense.
3. To pay KN for such training at a cost of per service
specialist. Such training may be provided by Champion. Such
services may be performed by K N, at Champion's request, for an
additional cost of One Hundred Dollars and No Cents ($100.00) per
hour.
4. To train Champion technicians in the procedures and policies of
dispatch of Champion services and products by K N personnel
through the K N Service Center in Scottsbluff, NE. Champion shall
be solely responsible for actions or omissions of Champion
personnel relating to the implementation and maintenance of such
dispatch procedures.
5. Provision of at least one person on a full-time basis at the
Service Center located in Scottsbluff, NE to act as liaison to
implement, develop, and coordinate all products, training and
services set forth in Exhibits A & B for a period of up to
One-Hundred Twenty (120) calendar days from the date of execution
of this Agreement. Decisions made by such person concerning
policies, procedures, and implementation plans will be final and
binding on Champion. Such person shall be considered as having
the necessary authority to fulfill Champion's obligations under
this Agreement, whether such authority is express, or implied.
This person shall be considered an employee, and agent of
Champion, who shall be responsible for any and all benefits,
expenses, worker's compensation coverage, health and medical
coverage for such employee during the 120 day period.
6. To agree and to stipulate to payment of all undisputed invoices
from K N for billing services, dispatch services, product sales,
customer surveys and implementation costs within twenty (20) days
after the mailing date of such invoices. Failure to dispute such
invoices within such twenty (20) day period shall result in such
bills being considered by Champion as undisputed, and owed in
full. Failure to pay within thirty days shall result in an
additional late payment charge
CONFIDENTIAL TREATMENT REQUESTED
REDACTED MATERIAL HAS BEEN
FILED WITH THE COMMISSION
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equal to one and one-half percent per month (1 1/2%), for each
additional month payment is not received after due date. Champion
agrees to pay, to not dispute and to stipulate to any and all
additional costs, including but not limited to court costs, and
attorney's fees, incurred in the collection of any amounts due
and owing.
7. To use reasonable judgment in determining whether work is
performed to Champion's expectations.
8. To pay for any additional work requested not set forth in Exhibit
A or B, and to accept and acknowledge that such work shall be at
a price determined by KN, and agreed to by Champion prior to the
performance of the work and that all rights and obligations
concerning such work shall be according to the terms and
conditions set forth in this Agreement.
