1
EX. 10.11
Agreement No. BA17136
Page 1 of 18
AGREEMENT FOR THE PURCHASE OF GOODS
THIS AGREEMENT by and between World Wide Technology, Inc., a corporation
organized under the laws of Missouri with an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Supplier"), and TELESECTOR RESOURCES
GROUP, INC., a Delaware corporation with an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called "▇▇▇▇ Atlantic").
1.0 SCOPE OF AGREEMENT
1.1 Scope. This Agreement sets forth the terms and conditions that will govern
Supplier's sale to ▇▇▇▇ Atlantic of the Products, inclusive of the appropriate
software, firmware, and documentation [* Confidential treatment will be
requested] ("the Products"). ▇▇▇▇ Atlantic is not promising to purchase any
quantity of Products from Supplier. Any estimates that ▇▇▇▇ Atlantic may have
provided to Supplier are not firm or binding unless otherwise specifically
stated in this Agreement. This is not an exclusive dealings arrangement.
1.2 ▇▇▇▇ Atlantic Affiliates. References in this Agreement to "▇▇▇▇ Atlantic
Affiliates" shall include the following companies: ▇▇▇▇ Atlantic Corporation,
its subsidiaries and affiliates. ▇▇▇▇ Atlantic may direct that Products be
provided directly to a ▇▇▇▇ Atlantic Affiliate. A ▇▇▇▇ Atlantic Affiliate that
obtains a Product directly under this Agreement, whether right to use or title
passes directly to that entity or not, shall be entitled to all of the rights
and benefits afforded to ▇▇▇▇ Atlantic under this Agreement and may enforce this
Agreement in its own name. When Products are shipped directly to an affiliate,
▇▇▇▇ Atlantic shall be acting as an agent for that affiliate and title shall
pass directly to that affiliate.
2.0 TERM OF THE AGREEMENT
2.1 Term. This Agreement shall be effective on January 28, 1999 and shall end
January 31, 2002, provided that ▇▇▇▇ Atlantic may extend the term of this
Agreement for a period of up to 12 months, by giving Supplier written notice at
least thirty (30) days prior to the expiration date.
2.2 Termination by ▇▇▇▇ Atlantic. Notwithstanding any other provisions of this
Agreement, ▇▇▇▇ Atlantic may terminate this Agreement for convenience upon
thirty 30 days notice to Supplier.
2.3 Termination by Supplier. Supplier may not terminate this Agreement, or
cancel an Order(s) except for non-payment of the purchase price and then only if
after thirty (30) days of receipt of written notice of non-payment, ▇▇▇▇
Atlantic fails to pay such purchase price and thereupon Supplier issues its
written notice of default and ▇▇▇▇ Atlantic fails to pay such purchase price
within ten (10) business days of receipt of such notice of default. In no way
shall such termination act to impair ▇▇▇▇ Atlantic's right, title and interest
to the PRODUCT purchased hereunder, or its rights to Software which have been
purchased hereunder.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
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Agreement No. BA17136
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2.3 Existing Orders Continue. The termination or expiration of this Agreement
shall not affect the obligations of either party to the other under existing
Orders issued pursuant to this Agreement (except to the extent orders are
terminated or modified in accordance with the Section "ORDERS"), but such Orders
shall continue in effects as if this Agreement had not been ended.
3.0 ORDERS
3.1 Orders Contents. ▇▇▇▇ Atlantic shall purchase Products by issuing an Order
that references this Agreement and sets forth the quantity of each Product being
ordered; the time and place of delivery; the Order number; the date of the
Order; the billing and delivery addresses; the required delivery date(s); the
name and telephone number of the person to contact regarding shipping
instructions; and any special terms and conditions relevant to the particular
Order. (Special terms are those that are not preprinted. See the section below
titled "ENTIRE AGREEMENT".) Supplier agrees that it will accept or reject any
Order issued by ▇▇▇▇ Atlantic under this Agreement within ten (10) days of
receipt by Supplier. Supplier further agrees that if ▇▇▇▇ Atlantic does not
receive a rejection from Supplier of an Order within this ten (10) day period,
▇▇▇▇ Atlantic may consider such failure as an acceptance of the Order.
3.2 Right to Cancel. ▇▇▇▇ Atlantic may, by giving Supplier written notice,
cancel all or part of an Order at any time prior to delivery of the Products.
▇▇▇▇ Atlantic's liability to Supplier for the entire transaction shall be
limited to reasonable non-recoverable out-of-pocket expenses that Supplier
incurred as a result of Supplier's receipt of the Order and its full or partial
cancellation.
3.3 Change Order. ▇▇▇▇ Atlantic may, by issuing a written document labeled as a
"Change Order," make changes to an Order. If any change required by a Change
Order alters the value of the Products ordered, Supplier shall promptly notify
▇▇▇▇ Atlantic and Supplier shall adjust the price accordingly. If the amount of
the price adjustment is not specified in this Agreement, then the amount of any
change in price caused by the adjustment may be no greater than Supplier's
reasonable documentable increased costs and expenses. Supplier shall notify ▇▇▇▇
Atlantic within three (3) business days of Supplier's receipt of a Change Order
if the Change Order will cause an increase in price. ▇▇▇▇ Atlantic may, at its
discretion, agree to the changed price or withdraw the underlying Change Order.
4.0 DELIVERY
4.1 Timely Delivery. Unless otherwise indicated on an Order, Supplier must ship
an entire order to the location indicated on an Order by the date specified.
Supplier may not ship the Products more than one week in advance of the date
specified without the prior written approval of ▇▇▇▇ Atlantic. ▇▇▇▇ Atlantic may
require delivery within seven (7) calendar days of the date of an Order. If ▇▇▇▇
Atlantic requests a faster delivery time, Supplier may: (1) fill the Order in
that faster time period at the same price; (2) notify ▇▇▇▇ Atlantic of any
required premium prior to acceptance of the Order and receive approval or
rejection of that price, provided that if the premium is rejected the Order
shall be deemed canceled unless ▇▇▇▇ Atlantic agrees to extend the delivery
date; or (3) promptly notify ▇▇▇▇ Atlantic that Supplier cannot supply the
Product within the period requested, in which instance ▇▇▇▇ Atlantic may cancel
the Order and purchase the
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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Agreement No. BA17136
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Product elsewhere or extend the required delivery date. Unless Supplier provides
▇▇▇▇ Atlantic with written notice within three (3) days of ▇▇▇▇ Atlantic's
request for a faster delivery time that it cannot meet ▇▇▇▇ Atlantic's faster
date, Supplier must meet the faster date.
4.2 Late Delivery. If Supplier fails to meet the delivery schedule Supplier
shall be in breach of this Agreement, and ▇▇▇▇ Atlantic, without limiting any of
its other rights or remedies, may direct that Supplier, at Supplier own expense,
expedite routing or ▇▇▇▇ Atlantic may seek to purchase Products from another
supplier with Supplier being responsible for any increased costs. ▇▇▇▇ Atlantic
may, but shall not be obligated to, accept any untimely, excessive or incomplete
shipments. ▇▇▇▇ Atlantic may, at Supplier's risk and expense, return to Supplier
or hold for disposition all or part of any such shipment.
4.3 Packing Memo; Shipping Papers. Supplier shall enclose a packing memorandum
with each shipment. If Supplier ships more than one package, Supplier shall
clearly ▇▇▇▇ the package containing the memorandum. Supplier shall prominently
label each packing memorandum, shipment paper and package with the applicable
Order number. When Supplier makes more than one shipment against an Order,
Supplier must indicate the last shipment on the invoice and shipping papers
accompanying the last shipment.
4.4 Routing. Product shall be shipped by Supplier, F.O.B., Destination Billed
(DB), from Supplier's nearest facility capable of meeting ▇▇▇▇ Atlantic's
requirements using the most cost effective common carrier (rail, truck air or
freight forwarder) with transportation charges prepaid by Supplier and added as
a separate item to the invoice to be paid by ▇▇▇▇ Atlantic. For shipments less
than 150 pounds, Supplier shall use its approved small package transportation
company. Deviations from these instructions must be authorized by ▇▇▇▇
Atlantic's Transportation Organization. Excess transportation charges resulting
from Supplier's failure to comply with these instructions will be billed back to
Supplier. In no event will ▇▇▇▇ Atlantic be liable for premium shipping modes
unless previously authorized. Shipping and routing instructions may be altered,
orally or in writing, as mutually agreed upon by Supplier and ▇▇▇▇ Atlantic. If
requested by ▇▇▇▇ Atlantic, Supplier agrees to substantiate such charges by
providing ▇▇▇▇ Atlantic with the original freight ▇▇▇▇ or a copy thereof. When
▇▇▇▇ Atlantic instructs Supplier to ship origin collect (OC), Supplier will ship
Product via the carrier designated by ▇▇▇▇ Atlantic. Supplier shall call ▇▇▇▇
Atlantic's Transportation Organization on ▇▇▇-▇▇▇-▇▇▇▇ to obtain information
regarding carrier designations.
4.5 Title; Risk of Loss. Title and risk of loss or damage to Product purchased
by ▇▇▇▇ Atlantic under this Agreement, or an Order issued pursuant to this
Agreement, shall vest in ▇▇▇▇ Atlantic when the delivery of the Product has been
completed to the location specified in the Order. Delivery is not complete and
Supplier shall retain risk of loss or damage for all Product until ▇▇▇▇ Atlantic
shall have inspected the shipping container(s) and verified that the Product
received complies with the Order with respect to quantity and condition of the
shipping container in which the Product is received. In the event that the
shipment does not comply, title and risk of loss shall not pass to ▇▇▇▇
Atlantic. In such circumstance, ▇▇▇▇ Atlantic shall note any shortage and/or
visible transportation damages on the shipping document and notify Supplier of
same
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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Agreement No. BA17136
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within seven (7) days of receipt of Product. ▇▇▇▇ Atlantic shall cooperate
with Supplier in the prosecution of loss or damage and resulting claim.
5.0 PRODUCT AND QUALITY SPECIFICATIONS
5.1 Specifications. The Products (including all pallets and packaging) shall
meet all government and industry standards and specifications, as well as any
standards and specifications that Supplier has published (unless previously
rejected by ▇▇▇▇ Atlantic) [* Confidential treatment will be requested].
5.2 Defects. If Supplier receives information from one or more of Supplier's
other customers which indicates that any Product may contain a defect including
a defect in design or manufacture, that use of a Product may infringe upon the
intellectual property rights of a third party, or that any Product may have a
problem which could interfere with its intended use, Supplier will promptly
notify ▇▇▇▇ Atlantic of those defects or problems.
5.3 Defect Obligations. If any of Supplier's Products are discovered by Supplier
or ▇▇▇▇ Atlantic to be defectively designed or to contain a defect which could
pose a threat to the health or safety of any Product user, the environment, or
to the ▇▇▇▇ Atlantic network, Supplier shall, in addition to any other remedy
required by this Agreement or by law, recall all applicable Products and repair
or replace them or provide a field fix which eliminates the danger posed by the
defect.
5.4 Year 2000 - Representation and Warranty. In addition to and without
limitation of any other right or remedy of ▇▇▇▇ Atlantic, Supplier represents
and warrants that all Products delivered hereunder will record, store, process,
and present calendar dates falling on or after January 1, 2000, in the same
manner, and with the same functionality, as such Products record, store, process
and present calendar dates falling on or before December 31, 1999. Supplier
further represents and warrants that in all other respects such Products shall
not in any way lose functionality or degrade in performance as a consequence of
such Products operating at a date later than December 31, 1999. Without
limitation of the foregoing, Supplier's representative will consult with ▇▇▇▇
Atlantic's designated representative for century date change requirements, to
ensure that such Products will lose no functionality with respect to the
introduction of records containing dates falling on or after January 1, 2000,
and to ensure that such Products will be interoperable with other equipment used
by ▇▇▇▇ Atlantic which may deliver records to such Products, receive records
from such Products from such Products, or interact with such Products in the
course of processing data.
* Confidential treatment will be requested
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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Agreement No. BA17136
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* Confidential treatment will be requested
8.0 INVOICES AND NOTICES
8.1 Invoicing; Right to Set Off. Supplier shall send invoices to the person and
address set forth on the front of the Order. ▇▇▇▇ Atlantic shall pay the
invoices within thirty (30) days from receipt date of the invoice or the
delivery of the Product has been completed (as described in section 4.5 titled
"Title; Risk of Loss") to the location specified in the Order, whichever occurs
second. If ▇▇▇▇ Atlantic disputes all or any portion of an invoice, it shall be
required to pay only the amount not in dispute. [*Confidential treatment
requested]. ▇▇▇▇ Atlantic shall be entitled to set off any amount Supplier owes
it against amounts payable under this or any other Agreement. Payment by ▇▇▇▇
Atlantic shall not result in a waiver any of its rights under this Agreement.
▇▇▇▇ Atlantic shall not be obligated to pay Supplier for Services that are not
fully and properly invoiced.
8.2 Invoice Contents. Supplier shall provide in or with Supplier's invoice a
detailed list of all charges which shall include: (1) the type, description,
quantity and, where applicable, the serial numbers of the Products; (2) the
basic charge for the Products, including a description of all applicable
discounts; (3) a separate statement specifically listing all applicable taxes as
well as transportation and other associated costs; (4) the dates Products were
shipped; (5) the applicable Order number; and (6) any other information
specified in the Order.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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9.0 AUDITS
9.1 Records. Supplier shall maintain, in accordance with standard recognized
accounting practices, accurate and complete records that enable Supplier to
demonstrate full compliance with this Agreement. Supplier shall maintain these
records for a period ending four (4) years after the termination of this
Agreement.
9.2 Audit. Supplier shall allow ▇▇▇▇ Atlantic and its authorized agents and
representatives to audit these records, during normal business hours, at any
time during the term of this Agreement and the four (4) year period following
the termination or expiration of this Agreement. ▇▇▇▇ Atlantic shall be entitled
to a refund for all amounts that the audit report finds ▇▇▇▇ Atlantic overpaid
to Supplier. ▇▇▇▇ Atlantic shall bear the cost of these audits unless it is
determined that Supplier overcharged ▇▇▇▇ Atlantic for Products during the
period of time for which the records were audited.
10.0 INSPECTIONS, TESTS AND ACCEPTANCE
10.1 Inspection. All Products are subject to final inspection and acceptance by
▇▇▇▇ Atlantic or its agent at any time up to seven (7) days after delivery. ▇▇▇▇
Atlantic's inspections and payments prior to delivery do not constitute final
acceptance. If goods delivered do not conform with the requirements of this
Agreement and the applicable Order, ▇▇▇▇ Atlantic has the right to reject such
Products. ▇▇▇▇ Atlantic, at its option may, at Supplier's risk and expense,
return to Supplier or hold for Supplier's deposition Products that ▇▇▇▇ Atlantic
has rejected in whole or in part. This remedy is in addition to any other
available remedy. Supplier may not require any employee or representative to
sign a release as a condition for conducting an inspection under this paragraph.
10.2 The Products to be furnished or delivered pursuant to Order(s) issued under
this Agreement shall be subject to acceptance as follows:
▇▇▇▇ Atlantic and/or its Affiliates will be granted up to a thirty (30) day
period (Acceptance period) to test conformance with Specifications utilizing
Supplier's standard acceptance test procedures and ▇▇▇▇ Atlantic's and/or its
Affiliates' own independent testing procedures as agreed upon. Upon successful
completion of such tests, ▇▇▇▇ Atlantic and/or its Affiliate(s) shall issue a
Notice of Acceptance. In the event a Notice of Defects has been issued by ▇▇▇▇
Atlantic and/or its Affiliate(s) Supplier shall ship a replacement Product(s)
within twenty-four (24) hours of such notice. Upon delivery of such replacement
Product(s) by Supplier, ▇▇▇▇ Atlantic and/or its Affiliates(s) shall have the
opportunity to retest the replacement Products. Time required for ▇▇▇▇ Atlantic
and/or its affiliates to retest the new Product(s) shall not apply the thirty
(30) day period of Acceptance.
10.3 No Waiver. Neither the right of ▇▇▇▇ Atlantic to inspect Products nor its
failure to test Products prior to acceptance shall affect any rights of ▇▇▇▇
Atlantic or a ▇▇▇▇ Atlantic Affiliate under any provision of this Agreement.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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11.0 ▇▇▇▇ ATLANTIC'S PROPERTY AND TOOLING
11.1 ▇▇▇▇ Atlantic Ownership. Title to and the right to immediate possession of
any property, including patterns, tools, molds, jigs, dies, information provided
in tangible form or made for Supplier's performance under this Agreement, and
any other equipment or material, furnished to Supplier or paid for by ▇▇▇▇
Atlantic shall vest in ▇▇▇▇ Atlantic. Supplier may not furnish any articles made
therefrom to any other party without the prior written consent of ▇▇▇▇ Atlantic.
Supplier shall keep adequate records of such property and Supplier will safely
store, protect, preserve, repair and maintain such property at Supplier's
expense.
11.2 ▇▇▇▇ ATLANTIC DISCLAIMER OF WARRANTIES. If ▇▇▇▇ Atlantic allows Supplier to
use any of ▇▇▇▇ Atlantic's tools or equipment, such tools and equipment are
supplied to Supplier "AS-IS" with no warranties whatsoever. ▇▇▇▇ ATLANTIC
EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. It is Supplier's responsibility to inspect
the tools and equipment to assure that they are safe and fit for their intended
purposes. Supplier shall indemnify and hold ▇▇▇▇ Atlantic, as well as any ▇▇▇▇
Atlantic Affiliate, harmless against any claims, demands and liabilities that
result from Supplier's use of such tools and equipment, including, but not
limited to, any claims, demands and liabilities resulting from defects or other
failures of the tools and equipment, the inadequacy of a tool or equipment for a
particular task or the failure to properly use any tool or equipment.
* Confidential treatment will be requested
13.0 HAZARDOUS PRODUCTS OR COMPONENTS
13.1 Supplier Responsible. Supplier agrees to notify ▇▇▇▇ Atlantic in writing
and to supply an appropriate Material Safety Data Sheet (MSDS) to the Telesector
Resources Group Integrated Technical Services Division, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇, ▇▇ ▇▇▇▇▇ as well as to the ship-to point, if any Product or component
thereof is toxic or hazardous under any Federal, state or local law or if the
Product is capable of constituting a hazard. Supplier shall be responsible to
ensure that Products display all reasonable notices and warnings of foreseeable
hazards. If any Products or containers would be or could be classified as
hazardous or otherwise regulated waste
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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at the end of its useful life, Supplier will advise ▇▇▇▇ Atlantic in writing and
provide ▇▇▇▇ Atlantic with proper disposal instructions.
14.0 INDEMNIFICATION
14.1 Indemnification. Supplier agrees to indemnify, defend and hold ▇▇▇▇
Atlantic and ▇▇▇▇ Atlantic Affiliates harmless against any losses, damages,
liabilities, claims or demands (including all costs, expenses and reasonable
attorneys' fees on account thereof or in connection with any investigation or
preparation related thereto or the enforcement of the indemnification provisions
of this Agreement) (collectively, the "Indemnified Amounts") that may be made as
a result of Supplier's actual or alleged acts or omissions including, but not
limited to, claims made: (i) by anyone for infringement of any trademark,
copyright, patent, trade secret or other intellectual property right relating to
use or reproduction of Products or materials or services provided, developed,
authored or originated by Supplier; (ii) by anyone for injuries (including
death) to persons or damage to property (including theft) or other cause of
action resulting from Supplier's acts or omissions or those of persons furnished
by Supplier while performing work for ▇▇▇▇ Atlantic pursuant to this Agreement
or in connection with materials furnished by Supplier pursuant to this
Agreement; (iii) by persons furnished by Supplier or any subcontractors based on
employment contract, or federal, state or local laws prohibiting discrimination
in employment, or (iv) by persons furnished by Supplier or any subcontractors
under worker's compensation or similar acts; (v) in connection with the Products
and services contemplated by this Agreement, including the manufacture, use,
importation, offer for sale or sale of any Products, or resulting directly or
indirectly from the Products or the performance of the services under this
Agreement whether caused by the negligence of Supplier or anyone acting on
behalf of Supplier; or (vi) under any federal securities laws, or under any
other statute, at common law or otherwise, arising out of or in connection with
the Products or services contemplated by this Agreement or any information
obtained in connection with the performance hereunder. ▇▇▇▇ Atlantic agrees to
notify Supplier of any written claims or demands against ▇▇▇▇ Atlantic for which
Supplier is responsible hereunder and ▇▇▇▇ Atlantic shall be entitled, at its
option if ▇▇▇▇ Atlantic is dissatisfied with Supplier's handling thereof, to
assume the defense or settlement of any such claim. Supplier shall promptly
reimburse ▇▇▇▇ Atlantic for Indemnified Amounts as they are incurred.
15.0 IMPLEADER
15.1 No Impleader. Supplier agrees not to implead or bring any action against
▇▇▇▇ Atlantic (including ▇▇▇▇ Atlantic Affiliates), its successors, assigns,
employees or officers based on any claim (i) by any ▇▇▇▇ Atlantic (including any
▇▇▇▇ Atlantic Affiliate) employee for personal injury or death that occurs in
the course or scope of employment of such person or (ii) by any person furnished
by Supplier under this Agreement based on employment contract, or federal, state
or local laws prohibiting discrimination in employment.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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16.0 INSURANCE
16.1 Requirements. Supplier shall secure and maintain at its expense during the
term of this Agreement (i) statutory workers' compensation and employers
liability with limits of not less than $500,000; (ii) Commercial General
Liability insurance, including but not limited to, products liability and
completed operations, contractual liability, independent contractor, for a
combined single limit of at least $1,000,000 per occurrence for bodily injury
and property damage with a minimum policy aggregate of $2,000,000; and (iii)
Comprehensive Automobile Liability insurance for a minimum combined single limit
of $1,000,000 per occurrence. The insurer must be licensed to do business in the
state in which the work is performed and must have Bests Rating "AX" or better.
In addition to containing an endorsement naming ▇▇▇▇ Atlantic Corporation and
Telesector Resources Group, Inc as Additional Insured, the policies listed above
shall contain a provision eliminating and removing any exclusion of liability
for i) injury, including bodily injury and death, to an employee of the insured
or of ▇▇▇▇ Atlantic or ii) any obligation of the insured to indemnify, hold
harmless, defend or otherwise make contribution to ▇▇▇▇ Atlantic because the
damage arising out of injury, including bodily injury and death, to an employee
of ▇▇▇▇ Atlantic. Furthermore, ▇▇▇▇ Atlantic must receive at least thirty (30)
days' notice of cancellation or modification of the above insurance.
Certificates of insurance must be provided prior to any work being performed and
must be kept in force during the term of this Agreement. It is also agreed that
Supplier's policy is primary.
16.2 No Limitation. Supplier is responsible for determining whether the above
minimum insurance coverages are adequate to protect its interests. The above
minimum coverages do not constitute limitations upon Supplier's liability.
17.0 FORCE MAJEURE
17.1 Not Liable. Neither party shall be liable for defaults or delays due to any
causes (such as strikes, wars, acts of sabotage or natural disasters, but not
for acts which Supplier could have anticipated such as raw material price
increases, shortages of raw materials, or an increase in demand for Products by
third parties) that are beyond its control and that are not due to its acts or
omissions (Force Majeures).
17.2 Notice and Options for Other Party. Each party shall promptly notify the
other in case of a Force Majeure occurrence within five days after the beginning
thereof, and the party receiving notice may, by providing notice to the other
party at any time during the period covered by the Force Majeure, extend the
time for performance, or cancel all or any unperformed part, of this Agreement.
18.0 TERMINATION
18.1 ▇▇▇▇ Atlantic Right to Terminate. ▇▇▇▇ Atlantic may terminate this
Agreement as follows: (i) immediately upon notice in response to regulatory or
legal concerns or any concerns that activities under this Agreement may endanger
the health or safety of a person, the environment or the ▇▇▇▇ Atlantic network;
(ii) at any time upon ten (10) days' notice; or (iii) immediately upon
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
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notice for cause as follows: (a) for failure to perform, if ▇▇▇▇ Atlantic first
gave Supplier notice of breach and an opportunity to cure in seven days, or (b)
based on ▇▇▇▇ Atlantic's belief that Supplier has engaged in illegal, criminal
or fraudulent conduct in connection with services performed or to be performed
under this Agreement, or (c) the failure to pay its subcontractors or employees
providing services under this Agreement, or (d) a change in control, or
liquidation or insolvency of Supplier. Upon termination for cause, Supplier
shall not be entitled to further payments under this Agreement, and for a
material breach, Supplier shall immediately refund all amounts it received for
the applicable Products.
18.2 Existing Orders. Any termination of this Agreement will not terminate the
parties' obligations to each other under existing Orders unless ▇▇▇▇ Atlantic
terminates such in accordance with Section 3 titled ORDERS above.
19.0 RELATIONSHIP OF THE PARTIES
19.1 Independent Contractor. Supplier's relationship to ▇▇▇▇ Atlantic and ▇▇▇▇
Atlantic Affiliates shall be that of an independent contractor. Supplier shall
be responsible for Supplier's own employees and labor relations. This Agreement
does not make Supplier an agent, partner or joint venturer of ▇▇▇▇ Atlantic or
▇▇▇▇ Atlantic Affiliates. Accordingly, Supplier may not bind, or attempt to
bind, ▇▇▇▇ Atlantic or any ▇▇▇▇ Atlantic Affiliate, to any third parties
including, but not limited to, any labor organizations. Supplier shall be
entirely responsible for its own actions.
19.2 Persons Furnished by Supplier. Supplier shall be responsible for the
performance and actions of Supplier's employees, Supplier's subcontractors and
others acting at Supplier direction or on Supplier behalf. Supplier will be
deemed to have performed any act or omission of such persons under this
Agreement and ▇▇▇▇ Atlantic shall be entitled to all remedies available under
this Agreement or at law. Nothing in this section shall be construed to prohibit
▇▇▇▇ Atlantic or ▇▇▇▇ Atlantic Affiliates from also seeking remedial action
against the agent or employee for its act or omission.
20.0 GOVERNMENT CONTRACTS
20.1 Additional Requirements. If Supplier is informed that Products are being
purchased, directly or indirectly, to satisfy a contract of the United States
Government or any State or other governmental authority, then all terms and
conditions required by law, regulation or by Government Contract with respect to
the Products are incorporated herein by reference. In particular, Supplier
agrees to comply with all Equal Employment Opportunity Requirements.
21.0 ADVERTISEMENTS AND USE OF TRADEMARKS
21.1 Prohibitions and Restrictions. Supplier shall not advertise or publish the
fact that Supplier has furnished, or has contracted to furnish, to ▇▇▇▇ Atlantic
the goods or services covered by this Agreement without the prior written
consent of ▇▇▇▇ Atlantic. Supplier shall not use any trademark, trade name,
trade dress or any name, picture or logo which is commonly
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
11
Agreement No. BA17136
Page 10 of 18
identified with ▇▇▇▇ Atlantic or any ▇▇▇▇ Atlantic Affiliates without the
express written permission of ▇▇▇▇ Atlantic.
21.2 Product Markings. If ▇▇▇▇ Atlantic requires or allows Supplier to place any
marking or name on Products, Supplier shall ensure that the name or marking is
only placed on Products covered by this Agreement. Supplier shall completely
remove the marking or name from any Products upon which the name or marking was
placed but which are not sold to or accepted by ▇▇▇▇ Atlantic.
22.0 INTELLECTUAL PROPERTY AND INFORMATION
22.1 Intellectual Property.
22.1.1 Software License. Supplier grants to ▇▇▇▇ Atlantic a perpetual,
non-exclusive and irrevocable license for the use of firmware contained within
the Product ordered hereunder and software ("Software"). Under such license,
▇▇▇▇ Atlantic is authorized to use, execute and operate the Software, in whole
or in part, on any computer system or processor on which the Software will
function, and on any number of computer systems or processors, provided the use,
execution or operation is in the normal course of business; notwithstanding
anything to the contrary in the Agreement, use by or for ▇▇▇▇ Atlantic's direct
or lower tier customers, as incident to, arising out of, or as reasonably
necessary to comply with, the Telecommunications Act of 1996 or any FCC orders
implementing same, or any similar unbundling or interconnection requirements
imposed by any state or local public service authority shall be deemed to be
use, execution or operation in the normal course of business and shall be
included, without additional charge, within the scope of the license granted
under this Agreement. Supplier also grants to ▇▇▇▇ Atlantic the right to
transfer such license to its Affiliates. No such transfer shall release ▇▇▇▇
Atlantic from its obligations hereunder.
There is no additional fee beyond the Product purchase price for the licenses
granted hereunder.
Supplier warrants that it has all rights required to grant the licenses ordered
hereunder.
22.1.1.1 Irrevocable Software License. In the event ▇▇▇▇ Atlantic fails to meet
its uncontested payment obligations in connection with Products provided by
Supplier, Supplier may cancel only the license for Software contained within the
Product for which payment has not been made. In no way shall such cancellation
act to terminate, cancel or otherwise impair ▇▇▇▇ Atlantic's rights under this
agreement for Software which has been purchased and paid for. In the event ▇▇▇▇
Atlantic otherwise breaches the license, Supplier may be entitled to seek
damages which result from such breach and to injunctive relief intended to end
the breach; provided however that no such injunction, nor the payment of
damages, shall enjoin or have the effect of enjoining the use of the Software in
accordance with the terms and conditions of the license nor act to otherwise
impair ▇▇▇▇ Atlantic's rights to Software which have been purchased hereunder.
22.1.2 Infringement. Supplier acknowledges that ▇▇▇▇ Atlantic is a provider of
telecommunications services and does not manufacture any of the component parts
of its
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
12
Agreement No. BA17136
Page 11 of 18
network. Supplier further acknowledges that ▇▇▇▇ Atlantic intends to use
Supplier's Products in combination with Suppliers' other products and the
products of others. As a consequence, ▇▇▇▇ Atlantic's decision to deploy
Supplier's Products within its network is made in reliance on Supplier's
assurance that such use of Products does not infringe the intellectual property
rights of others. Furthermore, ▇▇▇▇ Atlantic requires that Supplier will
indemnify, hold harmless and defend ▇▇▇▇ Atlantic from and against any loss,
cost, damage, claim, expense or liability that may arise out of, or result by
reason of such infringement or claim of infringement, whether arising out of
▇▇▇▇ Atlantic's use of such Products or the acts of Supplier. However, if it is
determined that the Products were made infringing as a result of
modification(s) made by ▇▇▇▇ Atlantic, without Supplier's written consent, or
by modification(s) made at ▇▇▇▇ Atlantic's direction by Supplier, then the
foregoing indemnity shall not apply. In the event Supplier's Products is
found to be infringing, ▇▇▇▇ Atlantic requires Supplier to make every effort to
license, modify or replace the infringing Products to avoid removal of such
Products from ▇▇▇▇ Atlantic's network. In the event Supplier is unable to
license, modify or replace the infringing Products and ▇▇▇▇ Atlantic must
remove the infringing Products from its network, Supplier shall provide a full
refund of the purchase price of such Products.
22.2 Information.
22.2.1 Information Defined. The term "Information" includes: programs and
related documentation; specifications, drawings, models, technical and business
data and plans; works of authorship and other creative works; and ideas,
knowledge and know-how. Information may be transmitted in writing (or other
tangible form) or orally.
22.2.2 No Supplier Confidential Information. No Information Supplier provides to
▇▇▇▇ Atlantic (even if labeled or otherwise designated as proprietary or
confidential) shall be considered by ▇▇▇▇ Atlantic to be confidential or
proprietary.
22.2.3 ▇▇▇▇ Atlantic Information. Information that ▇▇▇▇ Atlantic furnishes to
Supplier or that Supplier otherwise comes into contact with under this Agreement
will remain ▇▇▇▇ Atlantic property. Supplier will return such Information to
▇▇▇▇ Atlantic upon termination of the Agreement or at ▇▇▇▇ Atlantic's earlier
request. Unless such Information was previously known to Supplier free of any
obligation to keep it confidential or is made public by ▇▇▇▇ Atlantic or a third
party without breach of any agreement, Supplier will keep the Information
confidential and use it only in performing this Agreement.
22.2. Work Product. The entire right, title and interest in all edits, original
inventions and works of authorship created by Supplier, or on Supplier's behalf,
for ▇▇▇▇ Atlantic or furnished to ▇▇▇▇ Atlantic hereunder or in relation to the
Products shall be transferred to and vested in ▇▇▇▇ Atlantic. All such works
shall be considered to be made for hire. Supplier agrees to provide
documentation and to sign all documents prepared or supplied by ▇▇▇▇ Atlantic
which ▇▇▇▇ Atlantic believes are necessary to ensure the conveyance of all such
right, title and interest, including patent, trademark and copyright, to ▇▇▇▇
Atlantic.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
13
Agreement No. BA17136
Page 12 of 18
22.2.5 No Supplier Licenses. ▇▇▇▇ Atlantic does not grant Supplier any license,
express or implied, under any patent, copyright, trademark, trade secret or
otherwise, except for the sole purposes of Supplier's performance of this
Agreement.
23.0 COMPLIANCE WITH LAWS
23.1 Supplier Obligations. Supplier agrees, in connection with the performance
of this Agreement, to comply with all applicable federal, state or local laws
and regulations, including, but not limited to, all applicable requirements of
the Fair Labor Standards Act, as amended, and of regulations and orders of the
United States Department of Labor issued thereunder and the Foreign Corrupt
Practices Act of 1977, as amended. Supplier agrees that it will not discriminate
against any employee or applicant for employment on account of race, color,
religion, sex, disability or national origin and will comply with the terms of
the Non-Discrimination Compliance Undertaking attached as Exhibit B hereto and
made a part of this Agreement. Supplier has, and shall maintain during the term
of this Agreement, all known permits or other appropriate records that may be
required by law. Notwithstanding any other provisions of this Agreement,
Supplier shall not export, directly or indirectly (including to foreign
nationals present in the United States), any United States source technical data
to any country outside the United States which export may be in violation of the
United States Export Control Laws and Regulations.
24.0 PLANT RULES
24.1 ▇▇▇▇ Atlantic Rules; No Hazardous Materials. Supplier is responsible for
ensuring that all of Supplier's employees, agents, subcontractors or other
persons furnished by Supplier: (1) comply with all plant rules, regulations and
security procedures; and (2) work in harmony with all others working on the
property of ▇▇▇▇ Atlantic and ▇▇▇▇ Atlantic Affiliates. If Supplier installs any
Products on the premises of ▇▇▇▇ Atlantic or a ▇▇▇▇ Atlantic Affiliates,
Supplier shall be responsible for promptly removing all packing materials and
debris. Supplier may not bring any toxic or hazardous materials onto any
premises of ▇▇▇▇ Atlantic or a ▇▇▇▇ Atlantic Affiliate without the permission of
▇▇▇▇ Atlantic, and Supplier shall be responsible for removing any such toxic or
hazardous materials in accordance with all relevant laws and any additional
requirements of ▇▇▇▇ Atlantic.
25.0 ASSIGNMENT
25.1 No Supplier Assignment. Supplier may not assign any right or interest under
this Agreement or an Order issued pursuant to this Agreement or delegate any
work or other obligation owed by Supplier under this Agreement without first
obtaining the written permission of ▇▇▇▇ Atlantic, which ▇▇▇▇ Atlantic may
refuse in its sole discretion. Any attempted assignment or delegation in
contravention of this section shall be void and ineffective.
25.2 ▇▇▇▇ Atlantic Assignment. ▇▇▇▇ Atlantic may freely assign all or part of
this Agreement.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
14
Agreement No. BA17136
Page 13 of 18
26.0 GOVERNING LAW
26.1 State Law and Forum. The validity, interpretation and performance of this
Agreement shall be governed by the procedural and substantive laws of the state
of New York without regard to conflict of laws. All actions under this Agreement
shall be brought in a court of competent subject matter jurisdiction in the
County of New York in the State of New York and both parties agree to accept the
personal jurisdiction of such court.
27.0 NON-WAIVER
27.1 No Waiver. No course of dealing or failure of either party to strictly
enforce the terms and conditions of this Agreement shall be construed as a
waiver of the future performance of that term or condition.
28.0 SEVERABILITY
28.1 Unenforceable Terms Severed. In the event that one or more provisions
contained in this Agreement are for any reason held to be unenforceable in any
respect, such unenforceability shall not affect any other term or condition of
this Agreement and this Agreement shall be construed as if the unenforceable
provision was not contained in this Agreement.
29.0 NOTICES
29.1 Method. All notices and other communications made under this Agreement
shall be effective when received by the other party at the address specified in
an Order, or if not specified in a n Order, at the address set forth below.
Notices must be sent by certified or registered mail (return receipt requested)
or to the telecopier number set forth below. The parties may, by providing seven
days' written notice, modify the addresses set forth below.
Notices to ▇▇▇▇ Atlantic shall be sent to:
▇▇▇▇ Atlantic
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Director, Corporate Sourcing, Switching
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ Atlantic Legal Department
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
15
Agreement No. BA17136
Page 14 of 18
Notices to Supplier shall be sent to:
World Wide Technology, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Director, Network and Communications
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
30.0 STATE TAXES
30.1 Exemptions. ▇▇▇▇ Atlantic may certify in an Order that a Product covered by
that Order is (i) (NT-1) for resale; (ii) (NT-2) for resale as a physical or
component part of tangible personal property or taxable services; (iii) (NT-3)
for direct use in research and development; (iv) (NT-4) for temporary storage
for subsequent use solely outside the state; (v) (NT-5) specifically exempt
under tax law. In those cases, ▇▇▇▇ Atlantic will be responsible for any
applicable sales or use tax under the license or registration numbers of the
taxing jurisdictions listed: Connecticut-6219745-000; Maine-F300981;
Massachusetts-133-180-910; ▇▇▇ ▇▇▇▇-▇▇-▇▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; and
Vermont-13-3180910. ▇▇▇▇ Atlantic WILL FURNISH TAX EXEMPT CERTIFICATES UPON
REQUEST.
31.0 CAPTIONS AND INTERPRETATIONS
31.1 Convenience Only. The captions of sections in this Agreement are for
convenience only and may not accurately or fully describe all of the
requirements of a section. The captions do not limit or modify the terms of this
Agreement or any section of this Agreement.
31.2 Reasonable Consent. Whenever the provisions of this Agreement require one
party to obtain the permission or consent of the other party, unless specified
otherwise, the party from whom the consent or permission is needed must act
reasonably in granting or withholding such consent.
32.0 GIFTS AND GRATUITIES AND CONFLICTS OF INTEREST
32.1 Certification. Supplier certifies that, to the best of Supplier's knowledge
and belief, no economic, beneficial, employment or managerial relationship
exists between Supplier and any employee of ▇▇▇▇ Atlantic or ▇▇▇▇ Atlantic
Affiliates, or between Supplier and any relative of an employee of ▇▇▇▇ Atlantic
or any ▇▇▇▇ Atlantic Affiliates, which would tend in any way to influence such
employee in the performance of his or her duties on behalf of ▇▇▇▇ Atlantic or
▇▇▇▇ Atlantic Affiliates in connection with the awarding, making, amending or
making determinations concerning the performance of this or any other agreement.
32.2 No Gratuities. The exchange or offering of any money, gift item, personal
service, entertainment or unusual hospitality by Supplier to ▇▇▇▇ Atlantic and
▇▇▇▇ Atlantic Affiliates is expressly prohibited. This prohibition is equally
applicable to both party's officers, employees, agents or immediate family
members. Any violation of this provision constitutes a material breach of this
Agreement.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
16
Agreement No. BA17136
Page 15 of 18
32.3 ▇▇▇▇ Atlantic Right To Terminate. ▇▇▇▇ Atlantic may, by written notice to
Supplier, terminate Supplier's right to proceed under this Agreement without any
liability whatsoever on the part of ▇▇▇▇ Atlantic if ▇▇▇▇ Atlantic finds:
(a)that Supplier has violated the certification contained in this section
regarding any conflict of interest; or
(b)that gratuities (as discussed in this section) were offered or given by
Supplier, or any of Supplier's agents or representatives, to any officer or
employee of ▇▇▇▇ Atlantic or ▇▇▇▇ Atlantic Affiliates awarding, making, amending
an agreement or securing favorable treatment with respect to the performance of
such agreement.
32.4 Remedies. In the event this Agreement is terminated as provided in this
section, ▇▇▇▇ Atlantic shall be entitled to pursue the same remedies against
Supplier as it could pursue in the event of a breach of the Agreement by
Supplier.
32.5 Cumulative Remedies. The rights and remedies of ▇▇▇▇ Atlantic in this
clause shall not be exclusive and are in addition to any other rights and
remedies provided by law or under this Agreement.
33.0 SURVIVAL OF OBLIGATIONS
33.1 Continue Beyond Agreement. Supplier's obligations under this Agreement,
which by their nature would continue beyond the termination, cancellation or
expiration of this Agreement, shall survive termination, cancellation or
expiration of this Agreement.
34.0 INFORMAL MANAGEMENT ESCALATION
34.1 Informal Management Escalation. Should any disagreement, dispute, disputed
claim of breach, nonperformance, or repudiation arising from, related to or
connected with this Agreement or any of the terms and conditions hereof, or any
transactions hereunder ("Dispute") arise between ▇▇▇▇ Atlantic and Supplier
either during this Agreement or after termination of this Agreement, either
party may give to the other notice of the Dispute, specifically referencing this
provision and request resolution of the Dispute. At the expiration of ten (10)
business days, unless it shall have been settled, such Dispute may be referred
by either party to the ▇▇▇▇ Atlantic Sourcing Director and Supplier Supplier's
Contact for resolution. The parties agree to exchange relevant information and
cooperate in good faith to resolve the Dispute under this provision. If within
an additional ten (10) business days, such dispute shall not have been settled
the parties shall have the right to pursue such remedies as may be available at
law or in equity. The parties will not be prohibited from seeking injunctive
relief to preserve the status quo pending resolution under this provision.
34.2 Settlement Purposes. ALL DISCUSSIONS AND DOCUMENTS PREPARED PURSUANT TO ANY
ATTEMPT TO RESOLVE A DISPUTE UNDER THIS PROVISION ARE CONFIDENTIAL AND FOR
SETTLEMENT PURPOSES ONLY AND SHALL NOT BE ADMITTED IN ANY COURT OR OTHER FORUM
AS AN ADMISSION OR OTHERWISE
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
17
Agreement No. BA17136
Page 16 of 18
AGAINST A PARTY FOR ANY PURPOSE INCLUDING THE APPLICABILITY OF FEDERAL AND STATE
COURT RULES.
35.0 PERIODIC REPORTS
Supplier agrees to render on or before the tenth day of the succeeding month, at
no charge to ▇▇▇▇ Atlantic and in formats acceptable to ▇▇▇▇ Atlantic, a report
of ▇▇▇▇ Atlantic's purchasing activity hereunder. The format of this report
shall be mutually agreed upon by both parties. This report will identify at a
minimum: (i) the ship to location, (ii) ▇▇▇▇ Atlantic's Order number, (iii)
company placing order, (iv) order date, (v) agreed to ship date, (vi) actual
ship date, for completed orders, (vii) quantity and configuration of Product(s)
ordered and shipped, (viii) dollar value for each order, and (ix) total dollar
value for the report month.
Supplier's report shall be mailed to:
▇▇▇▇ Atlantic Network Services, Inc.
ATTN: ▇▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
36.0 ACTIVITIES DONE BY OTHERS
If any part of the obligations of Supplier under this Agreement are dependent
upon activities done by others, Supplier shall promptly report to ▇▇▇▇ Atlantic
any occurrence in these activities that may jeopardize Supplier's proper
performance hereunder. Supplier's silence shall constitute approval of
activities done by others as fit, proper, and suitable for Supplier's
performance under this Agreement.
37.0 ENTIRE AGREEMENT
37.1 Entirety. This Agreement constitutes the entire agreement between the
parties and shall not be modified or rescinded, except as is specifically set
out in the Agreement or by a writing signed by Supplier and ▇▇▇▇ Atlantic. The
printed provisions on the reverse of a ▇▇▇▇ Atlantic Order and all provisions on
Supplier's forms shall be deemed rejected by ▇▇▇▇ Atlantic, and shall be void
and of no effect. The provisions of this Agreement supersede any and all prior
oral and written quotations, agreements, and understandings of the parties with
respect to the subject matter of this Agreement.
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
18
Agreement No. BA17136
Page 17 of 18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
WORLD WIDE TECHNOLOGY, INC. ▇▇▇▇ ATLANTIC NETWORK SERVICES, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------- -----------------------------------
Signature Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------- -------------------------------
Typed Name Typed Name
Director - Telco Business Unit for Vice President, Corporate Secretary
---------------------------------- -----------------------------------------
Title Title
January 28, 1999 January 28, 1999
---------------------------------- ------------------------------
Date Date
Not for use outside of ▇▇▇▇ Atlantic or
its affiliates without prior written permission
19
Agreement No. BA17136
Page 1 of 1
*Confidential treatment will be requested
20
Agreement No. BA17136
Exhibit B
Page 1 of 4
EXHIBIT B
NON-DISCRIMINATION
COMPLIANCE UNDERTAKING
------------------------------------------------------------------------------
To the extent that this contract is subject to them, Supplier shall comply with
the applicable provisions of the following: Exec. Order No. 11246, Exec. Order
No. 11625, Exec. Order No. 12138, Exec. Order No. 11701, Exec. Order No. 11758,
Section 503 of the Rehabilitation Act of 1973 as amended by ▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇
Era Veteran's Readjustment Assistance Act of 1974 and the rules, regulations and
relevant Orders of the Secretary of Labor pertaining to the Executive Orders and
Statutes listed above.
Monetary amounts or contractual or purchasing relationships, together with the
number of the Supplier's employees, determine which Executive Order provisions
are applicable. For contracts and orders valued at less than $2,500, none of the
clauses shall be considered a part of the contract. However, for contracts or
orders of/or which aggregate to $2,500 or more annually, the following table
describes the clauses which are included in the contract or order:
1. Inclusion of the "Equal Employment Opportunity" clause in all contracts and
orders.
2. Certification of non-segregated facilities.
3. Certification that an Affirmative Action program has been developed and is
being followed.
4. Certification that an annual Employers Information Report (EEO-1 Standard
form 100) is being filed.
5. Inclusion of the "Utilization of Minority and Women's Business Enterprises"
clause in all contracts and orders.
6. Inclusion of the "Minority and Women's Business Subcontracting Program"
clause in all contracts and orders.
7. Inclusion of the "listing of Employment Openings" clause in all contracts
and orders.
8. Inclusion of the "Employment of the Handicapped" clause in all contracts
and orders.
$2,500 TO $5,000 $5,000 TO $10,000 $10,000 TO $50,000 $50,000 TO $500,000
8 8 1, 2, 5, 6, 7, 8 1, 2, 3*, 4*, 5, 6, 7, 8
$500,000 OR MORE
1, 2, 3*, 4*, 5, 6, 7, 8
* Applies only for business with 50 or more employees
Not for use outside of ▇▇▇▇ Atlantic or its
affiliates without prior written permission
21
Agreement No. BA17136
Exhibit B
Page 2 of 4
1. EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS
In accordance with Executive Order 11246, dated September 24, 1965 and part 60-1
of Title 41 of the Code of Federal Regulations (Public Contracts and Property
Management, Office of Federal Contract Compliance, Obligations of Suppliers and
Subcontractors), as may be amended from time to time, the parties incorporate
herein by this reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
2. CERTIFICATION OF NON-SEGREGATED FACILITIES
The Supplier certifies that it does not and will not maintain any facilities it
provides for its employees in a segregated manner, or permit its employees to
perform their services at any location under its control, where segregated
facilities are maintained; and that it will obtain a similar certification,
prior to the award of any non-exempt subcontract.
3. CERTIFICATION OF AFFIRMATIVE ACTION PROGRAM
The Supplier affirms that it has developed and is maintaining an Affirmative
Action Plan as required by Part 60-2 of Title 41 of the Code of Federal
Regulations.
4. CERTIFICATION OF FILING OF EMPLOYERS INFORMATION REPORTS
The Supplier agrees to file annually on or before the 31st day of March complete
and accurate reports on Standard Form 100 (EEO-1) or such forms as may be
promulgated in its place.
5. UTILIZATION OF MINORITY AND WOMEN'S BUSINESS ENTERPRISES
A. It is the policy of the Government that minority and women's business
enterprises shall have the maximum practicable opportunity to participate in the
performance of the contract.
B. The Supplier agrees to use its best efforts to carry out this policy in the
award of its subcontracts to the fullest extent consistent with the efficient
performance of this contract. As used in the contract the term "minority or
women's business enterprise" means a business, at least 50 percent of which is
owned, controlled and operated by minority group members or women, or in the
case of publicly owned businesses, at least 51 percent of its stock is owned by
minorities or women. For the purposes of this definition, minority group members
are American: Blacks, Hispanics, Asians, Pacific Islanders, American Indians and
Alaskan Natives. Supplier may rely on written representation by subcontractors
regarding their status as minority or women's business enterprises in lieu of an
independent investigation.
6. MINORITY AND WOMEN'S BUSINESS ENTERPRISES SUBCONTRACTING PROGRAM
Not for use outside of ▇▇▇▇ Atlantic or its
affiliates without prior written permission
22
Agreement No. BA17136
Exhibit B
Page 3 of 4
A. The Supplier agrees to establish and conduct a program which will enable
minority and women's business enterprises (as defined in Paragraph 5) to be
considered fairly as subcontractors and suppliers under the contract. In this
connection, the Supplier shall:
1. Designate a liaison officer who will administer the Supplier's
minority and women's business enterprises in all "make or buy"
decisions.
2. Provide adequate and timely consideration of the potentialities of
known minority and women's business enterprises in all "make and buy"
decisions.
3. Assure that known minority and women's business enterprises will have
an equitable opportunity to compete for contracts, particularly by
arranging solicitations, time for preparation of bids, quantities,
specifications, and delivery schedules so as to facilitate the
participation of minority and women's business enterprises.
4. Maintain record showing (i) procedures which have been adopted to
comply with the policies set forth in this clause, including the
establishment of a source list of minority and women's business
enterprises, (ii) awards to minority and women's business enterprises
on the source list, and (iii) specific efforts to identify and award
contracts to minority and women's business enterprises.
5. Include the Utilization of Minority and Women's Business Enterprises
clause in subcontracts which offer substantial minority and business
women's business enterprises subcontracting opportunities.
6. Cooperate with the Government's Contracting Officer in any studies and
surveys of the Supplier's minority and business enterprises procedures
and practices that the Contract Officer may from time to time conduct.
7. Submit periodic reports of subcontracting to known minority and
women's business enterprises with respect to the records referred to
in subparagraph 4 above, in such a form and manner and at such time
(not more than quarterly) as the Contracting Officer may prescribe.
B. The Supplier further agrees to insert, in any subcontract hereunder which may
exceed $500,000 (or in the case of M/WBE, $1,000,000 in the case of contracts
for construction of any Public facility and which offer substantial
subcontracting possibilities) provisions which shall conform substantially to
the language of this agreement, including this paragraph (B).
7. LIST OF EMPLOYMENT OPENINGS FOR VETERANS
In accordance with Exec. Order 11701, dated January 24, 1973 and Part 60-250 of
Title 41 of the Code of Federal Regulations, as may be amended from time to
time, the parties incorporated herein by this reference the regulations and
contract clauses required by those provisions to be made part of Government
contracts and subcontracts.
Not for use outside of ▇▇▇▇ Atlantic or its
affiliates without prior written permission
23
Agreement No. BA17136
Exhibit B
Page 4 of 4
8. EMPLOYMENT OF THE HANDICAPPED
In accordance with Exec. Order 11758, dated January 15, 1974, and Part 60-741 of
Title 41 of the Code of Federal Regulations as may be amended from time to time,
the parties incorporated herein by this reference the regulations and contract
clauses required by those provisions to be made a part of Government contracts
and subcontracts.
Not for use outside of ▇▇▇▇ Atlantic or its
affiliates without prior written permission
