CONTRACTOR AGREEMENT
This agreement (Agreement) is made between GTE Data Services GmbH, a limited
liability company organized and existing under the laws of the Federal Republic
of Germany, with a place of business at Xxx Xxxx Xxxxxxx Xxxxxxx, XXXXXX0X,
Xxxxxx Xxxxxxx, XX 00000, (CUSTOMER), and Cyber Digital Inc., located at 000
Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000 (CONTRACTOR).
In consideration of the mutual terms and conditions of this Agreement, the
parties agree as follows:
1. GENERAL
CUSTOMER retains CONTRACTOR to perform the services described in
Schedule A (Services) concerning SS7 DSC consulting services in support
of CUSTOMER's contract with o.tel.o communications GmbH & Co.
("o.tel.o"). This Agreement shall be contingent upon execution of an
agreement for SS7 DSC consulting services between CUSTOMER and o.tel.o.
Services shall be performed in Germany in accordance with Schedule A
and the compensation arrangement set out in Paragraph 2 of this
Agreement, below.
2. FEES, EXPENSES, AND BILLING
(a) CUSTOMER agrees to pay CONTRACTOR the following fees (Fees)
for Services to be accomplished under this Agreement. Fees
will be paid monthly using the following rate schedules:
Amount Job Title
$800/per work day SS7/AIN Technician
$720/per work day SS7/AIN Data Base Administrator
A work day shall consist of 8 or more hours of billable work
time. No additional compensation is due for hours worked in
excess of 8 hours per day. For work consisting of less than 8
hours per day, CUSTOMER shall pay CONTRACTOR $100 per hour for
the Technician and $90 per hour for the Data Base
Administrator.
Note: One week in Dallas for GTE training will be free of
charge from CONTRACTOR and the last week in Germany will be
free of charge.
(b) In addition to the Fees set forth in 2.(a), CUSTOMER will pay
CONTRACTOR a per diem rate of $175 per employee while based in
Germany. The per-diem will be in lieu of all expenses
including, but not limited to, airline travel, lodging, meals,
telephone toll charges, ground
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transportation, and miscellaneous expenses incurred away from
CONTRACTOR's offices.
(c) CONTRACTOR shall submit invoices to CUSTOMER for Fees and for
per-diem, together with the documentation required under this
Agreement, following completion of CONTRACTOR'S services on a
monthly basis. Each invoice must contain the following
information, at a minimum:
CONTRACTOR'S Firm Name and Remit to Address
Description of Performance for Which Payment is Due
Number of hours worked including non-compensable
hours
GTE Purchase Order Number_________
GTE Agreement Number______________
If CUSTOMER determines that an invoice and the related
documentation are complete and correct, CUSTOMER will pay to
CONTRACTOR the amount of the invoice within thirty (30) days
after CUSTOMER's receipt of the invoice. If CUSTOMER
determines that the invoice and/or the related documentation
is incomplete and/or incorrect, CUSTOMER will notify
CONTRACTOR within ten (10) business days after CUSTOMER's
receipt of the invoice to resolve any disputes regarding the
invoice and/or the related documentation.
(d) CONTRACTOR shall maintain complete and accurate records in a
form in accordance with generally accepted accounting
practices, to substantiate CONTRACTOR charges. Such records
shall include, but not be limited to, time cards, job cards
and job summaries. CONTRACTOR shall retain, and make available
upon request, such records for a period of three (3) years
from the date of payment(s) for Consulting Services covered by
this Agreement. CUSTOMER and its authorized agents shall have
access to such records during normal business hours during the
term of this Agreement and during the respective periods in
which CONTRACTOR is required to maintain such records pursuant
to this subsection.
3. TERM
This Agreement shall become effective when signed by both parties and,
except as otherwise provided in this Agreement, shall continue in full
force and effect thereafter for 18 months unless sooner terminated as
provided herein.
4. PERFORMANCE STANDARD
CONTRACTOR shall perform Services to the satisfaction of CUSTOMER.
CONTRACTOR shall provide written notification of completion of Services
to the CUSTOMER. CONTRACTOR shall correct at its expense all
deficiencies caused by CONTRACTOR and complete the correction as
quickly as possible.
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5. WARRANTY
CONTRACTOR represents, warrants, and covenants to CUSTOMER that:
(a) In performing Services, CONTRACTOR will strictly comply with
the descriptions and representations as to the Services
(including performance capabilities, accuracy, completeness,
characteristics, specifications, configurations, standards,
functions, and requirements) which appear herein and to any
subsequently issued attachments hereto and (if applicable) its
employees will perform Services on time and further that
Services will be in strict accordance with all applicable
laws, codes, ordinances, orders, rules and regulations of
local, state, federal and foreign governments and agencies and
instrumentalities, including, but not limited to, applicable
wage and hour, safety and environmental laws, and all
standards and regulations of appropriate regulatory
commissions and similar agencies.
(b) All Services furnished by CONTRACTOR shall be performed (i) in
a diligent, efficient and skillful manner, (ii) to the best of
CONTRACTOR's ability and (iii) at generally accepted levels of
performance available in the telecommunications industry. Any
substantial interruption or degradation of service, as
determined by CUSTOMER, will be considered below the generally
accepted levels of performance in the industry. Any dispute or
controversy relating to whether any Services meet the
generally accepted levels of performance in the industry shall
be decided by CUSTOMER in its reasonable discretion. The
CONTRACTOR recognizes that its performance is for the benefit
of o.tel.o and that if o.tel.o determines that the performance
is not acceptable, the CONTRACTOR will not be paid for those
services.
(c) If Services rendered by an employee of the CONTRACTOR are in
breach of the warranty or otherwise unsatisfactory in the sole
judgment of the CUSTOMER, CUSTOMER shall notify CONTRACTOR.
Upon receipt of notice from CUSTOMER that Services rendered by
an employee of CONTRACTOR are unsatisfactory, CONTRACTOR shall
immediately remove said employee and, within ten (10) calendar
days replace said employee with another employee who is
qualified to provide the Services.
(d) All goods provided and Services performed under this Agreement
do not and will not give rise to or result in any infringement
or misappropriation of any patent, copyright, trade secret, or
any violation of any other intellectual property right of any
third party.
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6. PERFORMANCE SCHEDULE
CONTRACTOR shall be free at all times to arrange the time and manner of
performance of Services and will not be expected to maintain a schedule
of duties or assignments except as needed to meet deadlines or
schedules established by CUSTOMER. CONTRACTOR will work as CONTRACTOR
may so independently decide. CUSTOMER shall specify milestones, meeting
and conference schedules, and due dates for deliverables.
7. DIRECTION AND CONTROL
CUSTOMER shall not direct, control or supervise CONTRACTOR as to the
details or means by which Services are accomplished.
8. NON-COMPETE
CONTRACTOR shall not directly or indirectly engage in a business or
other activity in competition with CUSTOMER in the provision of
consulting services to o.tel.o or its affiliates and subsidiaries. This
non-compete covenant shall remain in full force and effect during the
term of this Agreement and for a period of one (1) year following the
date of its termination. In the event of any breach, CUSTOMER shall be
entitled to full injunctive relief without need to post bond, which
rights shall be cumulative with and not necessarily successive or
exclusive of any other legal rights.
9. OWNERSHIP OF WORK PRODUCT
(a) CONTRACTOR shall make prompt written disclosure to CUSTOMER of
all inventions, improvements, discoveries, computer software
(including firmware), and other forms of technology or
intellectual property made or conceived or actually or
constructively reduced to practice during the term of this
Agreement, whether solely or jointly with others, and which
are associated with, refer to, are suggested by, or result
from any Services which CONTRACTOR may do pursuant to this
Agreement, or from any information obtained by CONTRACTOR from
CUSTOMER or in discussions and meetings with employees of
CUSTOMER or any of its affiliated companies. Furthermore,
CONTRACTOR hereby assigns and agrees to assign its entire
right, title and interest in and to said inventions,
improvements, discoveries, computer software and other forms
of technology and intellectual property to CUSTOMER and, at
the expense of CUSTOMER, agrees to assist CUSTOMER in every
proper way to protect said inventions, improvements,
discoveries, computer software and other forms of technology
and intellectual property, including, but not limited to,
signing patent and copyright applications, oaths or
declarations, and assignments in favor of CUSTOMER relating to
the said inventions, improvements, discoveries, computer
software, and other forms of
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technology and intellectual property, as well as such
ancillary and confirmatory documents as may be required or
appropriate to insure that such title is clearly and
exclusively vested in CUSTOMER, within the United States and
in any and all foreign countries. CONTRACTOR further agrees to
assist and cooperate with all efforts to enforce the rights of
CUSTOMER in such property against any third parties at the
expense of CUSTOMER.
(b) All notes, designs, models, prototypes, drawings, data storage
media, listings, deliverables, technical data, and other work
product developed in connection with or pursuant to the terms
and conditions of this Agreement, including any reports to be
prepared by CONTRACTOR for CUSTOMER under this Agreement,
shall become and remain the exclusive property of CUSTOMER,
and CUSTOMER shall have the rights to use such for any purpose
without any additional compensation to CONTRACTOR.
(c) CONTRACTOR grants to CUSTOMER its entire right, title and
interest in and to (including the right to reproduce, modify,
display, produce derivative works of, translate, publish,
sell, use, dispose of, and to authorize others so to do, and
the right to copyright and to register such copyright in
CUSTOMER's or its nominee's name) all copyrightable materials
conceived or first produced under this Agreement by
CONTRACTOR; and CONTRACTOR agrees that such copyrightable
materials are works made for hire exclusively for CUSTOMER
under the copyright laws of the United States. Further,
CONTRACTOR grants to CUSTOMER a royalty-free, nonexclusive,
transferrable, sublicensable, and irrevocable license to any
and all copyrighted or copyrightable works not conceived or
first produced by CONTRACTOR in the performance of this
Agreement, but which are incorporated in any materials
furnished under this Agreement to CUSTOMER by CONTRACTOR,
provided that such license shall only be to the extent that
CONTRACTOR has, or prior to completion of final settlement of
this Agreement, may acquire, the right to grant such license
without becoming liable to pay compensation to others solely
because of such grant.
(d) In the event any work conceived or first produced under this
Agreement shall not be deemed to be a work made for hire
exclusively for CUSTOMER under the copyright laws of the
United States, CONTRACTOR hereby assigns and agrees to assign
to CUSTOMER its entire right, title and interest in and to
such work, including all copyrights therein, and CONTRACTOR
further agrees at CUSTOMER's expense to execute whatever
assignments of copyright and ancillary and confirmatory
documents in said work may be required or appropriate so that
title to the work and to the copyrights therein will be
clearly and exclusively held by CUSTOMER.
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(e) CONTRACTOR warrants and represents that it has or will have
the right, through written agreements with all employees
performing Services under or in connection with this
Agreement, to secure for CUSTOMER the rights called for in
this Section. Further, in the event CONTRACTOR uses any
subcontractor, consultant or other third party to perform any
of the Services contracted for by this Agreement, CONTRACTOR
agrees to enter into such written agreements with such third
party, and to take such other steps as are or may be required
to secure for CUSTOMER the rights called for in this Section.
10. CONFIDENTIAL INFORMATION
(a) In the course of performing Services pursuant to this
Agreement, CONTRACTOR may come into contact with, or acquire
knowledge about, CUSTOMER's technical or business information
including information or data pertaining to specifications,
drawings, sketches, models, samples, computer programs,
information about CUSTOMER's network or facilities, and
CUSTOMER's customers, which information may be in written or
oral form (Information). Such Information is, and shall
remain, the exclusive property of the CUSTOMER. CONTRACTOR
shall treat and maintain all such Information as confidential,
whether or not it has been physically marked as Confidential.
The Information may be used by CONTRACTOR only if required to
perform Services under this Agreement and may only be
distributed to those employees of CONTRACTOR who have a need
to know in order to perform Services pursuant to this
Agreement; the Information may not be released to any other
person, entity, or the public without the written consent of
CUSTOMER.
(b) The foregoing obligations shall not apply to any Information
lawfully in CONTRACTOR's possession prior to its acquisition
from the CUSTOMER; received in good faith from a third party
not subject to any confidential obligation to the CUSTOMER;
now is or later becomes publicly known through no breach of
confidential obligation by CONTRACTOR.
(c) If CONTRACTOR receives a request to disclose any information
(whether pursuant to a valid and effective subpoena, an order
issued by a court or other governmental authority of competent
jurisdiction or otherwise) on advice of legal counsel that
disclosure is required under applicable law, CONTRACTOR agrees
that, prior to disclosing any information, it shall (i) notify
CUSTOMER of the existence and terms of such request or advice,
(ii) cooperate with CUSTOMER in taking legally available steps
to resist or narrow any such request or to otherwise eliminate
the need for such disclosure, if requested to do so by
CUSTOMER, and (iii) at CUSTOMER's expense, if disclosure is
required, use its best efforts to obtain a protective order or
other reliable assurance that confidential
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treatment will be afforded to such portion of the Information
as is required to be disclosed;
(d) If CONTRACTOR is given access, whether on-site or through
remote facilities, to any CUSTOMER computer or electronic data
storage system in order for CONTRACTOR to accomplish the
Services called for in this Agreement, CONTRACTOR shall limit
such access and use solely to perform work within the scope of
this Agreement and shall not access or attempt to access any
computer system, electronic file, software or other electronic
services other than those specifically required to accomplish
the work required under this Agreement. CONTRACTOR shall limit
such access to those of its employees whom CUSTOMER has
authorized in writing to have such access in connection with
this Agreement, and shall strictly follow all CUSTOMER's
security rules and procedures for use of CUSTOMER's electronic
resources. All user identification numbers and passwords
disclosed to CONTRACTOR and any information obtained by
CONTRACTOR as a result of CONTRACTOR's access to and use of
CUSTOMER's computer and electronic data storage systems shall
be deemed to be, and shall be treated as, CUSTOMER Information
under applicable provisions of this Agreement. CONTRACTOR
agrees to cooperate with CUSTOMER in the investigation of any
apparent unauthorized access by CONTRACTOR to CUSTOMER's
computer or electronic data storage systems or unauthorized
release of Information by CONTRACTOR.
(e) The obligation of confidentiality and use with respect to
Information shall survive termination of this Agreement.
11. DISPUTE RESOLUTION
(a) The parties desire to resolve certain disputes, controversies
and claims arising out of this Agreement without litigation.
Accordingly, except in the case of (i) a dispute, controversy
or claim relating to a breach or alleged breach of the
provisions of Section 10, CONFIDENTIAL INFORMATION, (ii) a
suit, action or proceeding to compel CONTRACTOR to comply with
its obligations to indemnify CUSTOMER pursuant to this General
Agreement or (iii) a suit, action or proceeding to compel
either party to comply with the dispute resolution procedures
set forth in this Section 11, the parties agree to use the
following alternative procedure as their sole remedy with
respect to any dispute, controversy or claim arising out of or
relating to this Agreement or its breach. The term "Arbitrable
Dispute" means any dispute, controversy or claim to be
resolved in accordance with the dispute resolution procedure
specified in this Section 11.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and
negotiate in good
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faith to resolve any Arbitrable Dispute arising under this
Agreement. The parties intend that these negotiations be
conducted by nonlawyer, business representatives. The
discussions shall be left to the discretion of the
representatives. Upon agreement the representatives may
utilize other alternative dispute resolution procedures such
as mediation to assist in the negotiations. Discussions and
correspondence among the representatives for purposes of these
negotiations shall be treated as confidential information
developed for purposes of settlement shall be exempt from
discovery and production, and which shall not be admissible in
the arbitration described below or in any lawsuit without the
concurrence of all parties. Documents identified in or
provided with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in the
arbitration or lawsuit.
(c) If the negotiations do not resolve the Arbitrable Dispute
within sixty (60) days of the initial written request, the
Arbitrable Dispute shall be submitted to binding arbitration
by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. A party may
demand such arbitration in accordance with the procedures set
out in those rules. Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set out in
this Section. Each party may submit in writing to a party, and
that party shall so respond, to a maximum of any combination
of thirty-five (35) (none of which may have subparts) of the
following: interrogatories, demands to produce documents and
requests for admission. Each party is also entitled to take
the oral deposition of one (1) individual of another party.
Additional discovery may be permitted upon mutual agreement of
the parties. The arbitration hearing shall be commenced within
sixty (60) days of the demand for arbitration and the
arbitration shall be held in Tampa, ------ Florida. The
arbitrator shall control the scheduling so as to process the
matter ------- expeditiously. The parties may submit written
briefs. The arbitrator shall rule on the Arbitrable Dispute by
issuing a written opinion within thirty (30) days after the
close of hearings. The times specified in this Section may be
extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction.
(d) Each party shall bear its own cost of these procedures. A
party seeking discovery shall reimburse the responding party
the cost of production of documents (to include search time
and reproduction time costs). The parties shall equally share
the fees of the arbitration and the arbitrator.
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12. RELATIONSHIP OF PARTIES
In providing any Services pursuant to this Agreement, CONTRACTOR is
acting solely as an independent contractor and not as an agent of any
other party. Persons furnished by the respective parties shall be
solely the employees or agents of such parties, respectively, and shall
be under the sole and exclusive direction and control of such parties.
They shall not be considered employees of the other party for any
purpose. Each party shall be responsible for compliance with all laws,
rules and regulations involving their respective employees or agents,
including (but not limited to) employment of labor, hours of labor,
health and safety, working conditions and payment of wages. Each party
shall also be responsible, respectively, for payment of taxes,
including federal, state, and municipal taxes, chargeable or assessed
with respect to its employees or agents, such as social security,
unemployment, worker's compensation, disability insurance and federal
and state income tax withholding. Neither party undertakes by this
Agreement or otherwise to perform or discharge any liability or
obligation of the other party whether regulatory or contractual, or to
assume any responsibility whatsoever for the conduct of the business or
operations of the other party. Nothing contained in this Agreement is
intended to give rise to a partnership or joint venture between the
parties or to impose upon the parties any of the duties or
responsibilities of partners or joint venturers.
13. FORCE MAJEURE
If performance of this Agreement is prevented, restricted or interfered
with by reason of acts of God, wars, revolution, civil commotion, acts
of public enemy, embargo, acts of government in its sovereign capacity,
labor difficulties, including, without limitation, strikes, slowdowns,
picketing or boycotts, or any other circumstances beyond the reasonable
control and not involving any fault or negligence of the party
affected, the party affected, upon giving prompt notice to the other
party shall be excused from such performance on a day-to-day basis
during the continuance of such prevention, restriction, or interference
(and the other party shall likewise be excused from performance of its
obligations on a day-to-day basis during the same period), provided,
however, that the party so affected shall use its best reasonable
efforts to avoid or remove such causes of nonperformance and both
parties shall proceed immediately with the performance of its
obligations under this Agreement whenever such causes are removed or
cease.
14. TAXES
CONTRACTOR shall be responsible for the withholding and/or payment, as
required by law, of all foreign, federal, state, and local taxes,
including any VAT or value-added taxes, imposed an CONTRACTOR or its
employees because of the performance of Services hereunder. Further,
CONTRACTOR shall comply with all foreign, federal and state benefits
laws applicable to CONTRACTOR or
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its employees, if any, including making deductions and contributions
for social security and unemployment tax. CUSTOMER reserves the right,
on reasonable notice, to inspect or audit CONTRACTOR's records to
ensure compliance with this Section. CONTRACTOR agrees to indemnify
CUSTOMER for any and all sums that are due and owing for withholding
FICA and unemployment or other state, federal and foreign taxes.
CONTRACTOR further agrees to make payments to foreign, federal and
appropriate state authorities for withholding, FICA and unemployment
taxes.
15. ASSIGNMENT
CUSTOMER hereby specifically contracts for services of CONTRACTOR, and
CONTRACTOR may not assign, subcontract or delegate the performance of
Services or other duties under this Agreement without the prior written
consent of CUSTOMER, which consent may be withheld in CUSTOMER's sole
and absolute discretion. CONTRACTOR's hiring of new full-time or
temporary employees shall not be deemed an assignment under this
Section 15.
16. COMPLIANCE WITH LAWS
(a) CONTRACTOR shall comply with the provisions of all applicable
foreign, federal, state, and local laws, ordinances,
regulations and codes (including procurement of required
permits or certificates) in CONTRACTOR's performance under
this Agreement including, but not limited to, German law, the
Fair Labor Standards Act, the Americans with Disabilities Act
(Public Law 101-336, 42 U.S.C. 12101 et seq.), safety and
environmental laws, rules and ------- regulations, any laws,
rules and regulations regarding wages, hours, fringe benefits
and taxes, and federal and state Occupational Safety and
Health Act Laws.
(b) CONTRACTOR shall be solely responsible to provide such
reasonable accommodations, to include auxiliary aids and
services, as may be required under the Americans with
Disabilities Act so as to enable any disabled person furnished
by CONTRACTOR to perform the essential functions of the
person's job as pertains to the Services. CONTRACTOR shall
defend, indemnify and hold harmless CUSTOMER from any claim,
demand, lawsuit, action or liability arising out of failure to
comply with the provisions of the referenced Act with respect
to providing reasonable accommodations for the person
furnished by CONTRACTOR.
17. WORK RULES
CONTRACTOR, when performing Services under this Agreement, shall obey
all rules and regulations established by CUSTOMER or o.tel.o regarding
the conduct of their own employees, including no smoking policies and
security rules and regulations.
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18. CONFLICTS OF INTEREST
CONTRACTOR agrees to refrain from accepting or conducting assignments
from any person, firm or company during the term of this Agreement
which would conflict with or impair an unbiased performance of the
Services or other duties under this Agreement. During the term of this
Agreement, CONTRACTOR agrees promptly to disclose to CUSTOMER any
business relationship or other matter that may raise a question
concerning a conflict of interest.
19. LIMITATION OF LIABILITY
A. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER WHATSOEVER FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOSS OF ANTICIPATED PROFITS OR REVENUE OR OTHER ECONOMIC LOSS IN
CONNECTION WITH OR ENSUING FROM THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. In no event shall CONTRACTOR be entitled to any direct monetary damages
against CUSTOMER in excess of the amount paid by CUSTOMER to CONTRACTOR, under
this Agreement, except that this limitation shall not apply to any remedy or
damages with respect to claims for personal injury or property damage.
C. No action, regardless of form, arising out of the transactions contemplated
by this Agreement may be brought by either party more than two (2) years after
the cause of action has accrued, except that an action for non-payment may be
brought within two (2) years after the date of last payment.
20. INDEMNIFICATION
(a) CONTRACTOR shall defend, indemnify and hold harmless CUSTOMER
and its affiliates, officers, agents and employees from all
claims, suits, actions, demands, damages, liabilities,
expenses (including fees and disbursements of counsel),
judgments, settlements and penalties of every kind related to
CONTRACTOR's (either directly or through its officers, agents,
sub- contractors or representatives) performance of the
Services under this Agreement or violation of any term of this
Agreement or the matters referred to in this Section. The
foregoing indemnity, to the extent permitted by law, shall
apply in the case of all claims which arise from the
negligence, misconduct or other fault of CUSTOMER, provided,
however, that if a claim is the result of the joint
negligence, joint misconduct, or joint fault of CONTRACTOR and
CUSTOMER, the amount of the claim for which CUSTOMER is
entitled to indemnification shall be limited to that portion
of such claim that is attributable to the negligence,
misconduct or other fault of CONTRACTOR. The parties agree
that the price for
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Services provided under this Agreement includes consideration
for the obligation to indemnify as set out in this Section.
The obligations in this Section are in addition to
CONTRACTOR's duty to provide insurance and shall not be
limited by any limitation on the amount or type of damages,
compensation, or benefits payable by CONTRACTOR under the
Worker's Compensation Acts, Longshoremen and Harborworker's
Act, Disability Benefits Acts, or any other employee benefit
act.
(b) Without limitation of Subsection (a) above, CONTRACTOR shall,
to the fullest extent permitted by law, defend, indemnify and
hold harmless CUSTOMER, its officers, agents and employees,
from all claims, suits, actions, demands, damages,
liabilities, expenses (including fees and disbursements of
counsel), judgments, settlements and penalties of every kind
arising from or related to the following matters:
(1) CONTRACTOR's failure to comply with all foreign,
federal, state or local laws, rules or regulations
applicable to CONTRACTOR's employees;
(2) CONTRACTOR's failure to comply with terms of the
Section entitled, CONFIDENTIAL INFORMATION, regarding
proprietary information of CUSTOMER;
(3) CONTRACTOR's failure to pay all fees and royalties
for the use of patented articles or methods in
connection with the Services;
(4) CONTRACTOR's failure to obtain or maintain the
Permits referred to in Section 20, PERMITS, except
for those Permits that CUSTOMER has expressly agreed
to obtain and maintain at CUSTOMER's expense;
(5) Contributions to multiemployer pension plans
affecting CON-TRACTOR's employees;
(6) Any mechanic's or materialmen's liens or any other
liens or encumbrances filed in respect of or placed
upon any real property or improvements owned or
leased by CUSTOMER as a result of any Services
performed by or any other act or omission on the part
of CONTRACTOR or any subcontractor or other person
claiming by, through or under CONTRACTOR; or
(7) Any injury, sickness, disease or death of any person,
damage to any properties or assets or remediation of
any soil, surface water or groundwater resulting from
the processing, use, distribution, treatment,
storage, placement, removal, transportation or
disposal
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of any Hazardous Materials by CONTRACTOR or its
officers, agents subcontractors or representatives.
(8) Any claim, action or proceeding affecting CUSTOMER
arising out of the Contractor Agreement signed
October 6, 1997, between CUSTOMER and First-Tel
Communications, Inc., a copy of which is attached
hereto and incorporated herein ("First-Tel
Agreement"), including, but not limited to, any
pleading, petition or order affecting CONTRACTOR
arising out of the bankruptcy case, In The Matter of
First Tel Communications, Inc., Case No. 97-11015
(Bankr. N.D. In. 1997). GTEDS will write a letter to
the bankruptcy trustee in the above-cited case
requesting that the trustee petition the court to
issue an order abandoning the First-Tel Agreement,
and upon the issuance of said order, the Indemnity in
this Subsection 20(b)(8) shall be deleted.
(c) CUSTOMER shall promptly notify CONTRACTOR in writing of any
suits, claims or demands covered by this indemnity. Promptly
after receipt of such notice, CONTRACTOR shall assume the
defense of such claim with counsel reasonably satisfactory to
CUSTOMER. If CONTRACTOR fails, within a reasonable time after
receipt of such notice, to assume the defense with counsel
reasonably satisfactory to CUSTOMER. Notwithstanding the
above, if CUSTOMER in its sole discretion so elects, CUSTOMER
may also participate in the defense of such actions by
employing counsel at its expense, without waiving CONTRACTOR's
obligations to indemnify or defend. CONTRAC- TOR shall not
settle or compromise any claim or consent to the entry of any
judgment without the prior written consent of CUSTOMER and
without an unconditional release of all liability by each
claimant or plaintiff to CUSTOMER.
21. INSURANCE
CONTRACTOR shall procure and maintain, at its sole cost and expense,
policies of insurance naming CUSTOMER as an additional insured. The
types of coverage, exclusions, limits of liability and deductible
amounts applicable to such policies shall be as set forth in Exhibit 4.
All such policies shall be issued by reputable and financially sound
insurance companies reasonably acceptable to CUSTOMER and shall provide
that no amendment or cancellation shall be effective unless CUSTOMER
receives thirty (30) days' prior written notice. In addition, such
policies shall serve to indemnify CUSTOMER and hold it harmless from
all third party claims arising from or in any way connected with the
Services performed by CONTRACTOR under this Agreement CONTRACTOR shall
furnish to CUSTOMER prior to performing Services, and, on request of
CUSTOMER from time to time thereafter, certificates evidencing that
such policies are in full force and effect. Each certificate so
furnished shall acknowledge that CUSTOMER is named as an additional
insured under the
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applicable policies and shall set forth on its face the applicable
limits of liability. The failure of CONTRACTOR to furnish any such
certificate shall not diminish or otherwise affect its obligation to
procure and maintain any policies of insurance contemplated by this
Section. CONTRACTOR further agrees to take such actions as are
necessary to ensure that all of its subcontractors, suppliers and
independent contractors procure and maintain policies of insurance and
furnish proof, in each case as if they were subject to the terms and
provisions of this Agreement.
22. CUSTOMER PLANT, WORK RULES, AND RIGHT OF ACCESS
(a) CONTRACTOR shall furnish an adequate number of properly
trained and fully qualified personnel, including supervisory
and management, to provide Services. CONTRACTOR's manager must
be available during business hours and other such times as an
emergency may demand to insure that all problems, complaints,
coordination, and any other necessary matters are attended to.
(b) CONTRACTOR agrees that all employees, subcontractors, and
agents assigned to fulfill this Agreement shall read and agree
to CUSTOMER's Policy concerning Sexual Harassment, CUSTOMER's
Contractor Code of Ethics and Business Standards and
CUSTOMER's Policy concerning Alcohol and Drugs, copies of
which are attached hereto as Exhibits 1-3. CONTRACTOR will be
responsible for acquainting each CONTRACTOR employee,
subcontractor, or agent with the contents of these statements
and ensuring that each employee, subcontractor, or agent
abides by them. Furthermore, CONTRACTOR warrants and
represents that no employee of CUSTOMER, or any employee,
subcontractor, or agent of any CUSTOMER affiliated company, is
in the employment of CONTRACTOR, or receiving any compensation
or any other thing of more than nominal value now or at any
other time from CONTRAC- TOR, or any agent of CONTRACTOR.
CONTRACTOR shall insure that its employees, agents and
subcontractors comply with any policies, work rules and
standards of o.tel.o.
(c) All employees, subcontractors, and agents of CONTRACTOR shall
abide by all CUSTOMER work rules while on CUSTOMER or o.tel.o
premises. CUSTOMER shall have the right to modify the work
rules or promulgate additional work rules, and CONTRACTOR and
its employees, subcontractors, and agents shall comply with
such modified or additional work rules immediately following
CONTRACTOR's receipt of a written copy.
(d) CUSTOMER reserves the right to determine in its sole
discretion that any person supplied by CONTRACTOR is not
capable or fit to perform the Services assigned. CUSTOMER may
remove from its premises or the
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premises of o.tel.o such person without incurring any
liability or obligation to pay CONTRACTOR for unsatisfactory
Services performed by said person or for any Services
performed by said person after CUSTOMER gives notice of
removal.
(e) CUSTOMER reserves the right to request at any time and for any
reason that specific employees, subcontractors, and agents of
CONTRACTOR be removed from and not assigned by CONTRACTOR to
perform Services for CUSTOMER, and CONTRACTOR acknowledges,
agrees and understands that CONTRACTOR will immediately comply
with such request by CUSTOMER.
(f) CONTRACTOR shall not engage in any business or transaction or
professional activity, or shall incur any obligation of any
nature, that is in conflict with the proper discharge of Its
duties while performing Services for CUSTOMER.
(g) If CONTRACTOR is given access, whether on-site or through
remote facilities, to any CUSTOMER computer or electronic data
storage system in order for CONTRACTOR to accomplish the
Services called for in this Agreement, CONTRACTOR shall limit
such access and use solely to perform Services within the
scope of this Agreement and shall not access or attempt to
access any computer system, electronic file, software or other
electronic services other than those specifically required to
accomplish the Services required under this Agreement.
CONTRACTOR shall limit such access to those of its employees
whom CUSTOMER has authorized in writing to have such access in
connection with this Agreement, and shall strictly follow all
CUSTOMER's security rules and procedures for use of CUSTOMER's
electronic resources. All user identification numbers and
passwords disclosed to CONTRACTOR and any information obtained
by CONTRACTOR as a result of CONTRACTOR's access to and use of
CUSTOMER's computer and electronic data storage systems shall
be deemed to be, and shall be treated as, CUSTOMER information
under applicable provisions of this Agreement. CONTRACTOR
agrees to cooperate with CUSTOMER in the investigation of any
apparent unauthorized access by CONTRACTOR to CUSTOMER's
computer or electronic data storage systems or unauthorized
release of information by CONTRACTOR.
23. PUBLICITY
Each party agrees not to provide copies of this Agreement, or otherwise
disclose the terms of this Agreement, to any third party without the
prior written consent of the other party; provided, however, that
CUSTOMER may, without obtaining CONTRACTOR's consent, provide copies or
make disclosures to CUSTOMER's affiliates, or any regulatory or
judicial body requesting such information. The
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parties further agree to submit to one another, for written approval,
all advertising, sales promotion, press releases and other publicity
matters relating to Services furnished pursuant to this Agreement, when
its respective name or xxxx is mentioned or language from which the
connection of said name or xxxx xxx be inferred or implied. The parties
further agree not to publish or use such advertising, sales promotions,
press releases, or publicity matters without such prior written
approval. Any approval required under this Section shall not be
unreasonably withheld or delayed by either party.
24. TERMINATION
Notwithstanding anything to the contrary contained in this Agreement,
CUSTOMER reserves the right to terminate this Agreement at any time by
delivering at least ten (10) calendar days' prior written notice of
termination to CONTRACTOR. In the case of termination pursuant to this
paragraph, CUSTOMER shall pay CONTRACTOR the Fees for Services
accomplished for CUSTOMER under this Agreement and delivered to
CUSTOMER, and for Per Diem incurred by CONTRACTOR prior to and
including the date of termination. Upon termination, CONTRACTOR shall
deliver to CUSTOMER all completed work and work in progress, to include
notes, draft reports and similar materials.
25. NOTICE
Any notice required to be given hereunder shall be given by facsimile
transmission or by any method which will require a signed
acknowledgment of receipt. Notices shall be deemed given on the first
business day (Monday through Friday, exclusive of the parties'
holidays) following the date shown on the facsimile transmission or the
date shown on the signed evidence of receipt, as the case may be.
Notices intended for CUSTOMER shall be sent to its address appearing on
page 1 hereof to the attention of its Director - CS Product Management
- Network Services (facsimile 000 000 0000), with a copy to the Law
Department (facsimile 000 000 0000). Notices intended for CONTRACTOR
shall be sent to its address appearing on page 1 hereto to the
attention of its Vice President (facsimile 000 000 0000). Either party
may change its address for notice purposes by notifying the other party
in accordance with this Section. Routine correspondence does not fall
within the intent of this Section.
26. WAIVER OF TERMS AND CONDITIONS
Failure to enforce any of the terms or conditions of this Agreement
shall not constitute a waiver of any such terms or conditions, or of
any other terms or conditions.
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27. PRECEDENCE OF DOCUMENTS
In case of conflict between provisions of this Agreement (for purposes
of this paragraph, meaning just the Agreement document without Schedule
A) and provisions contained in Schedule A, this Agreement shall govern.
In case of conflict between provisions of either this Agreement and
Schedule A and a subsequent written amendment or modification, the
subsequent amendment or modification shall govern.
28. SEVERABILITY
If any term or provision of this Agreement shall be declared invalid,
illegal or unenforceable, the invalidity, illegality or
unenforceability thereof shall not affect the remaining terms or
provisions.
29. SURVIVAL OF OBLIGATIONS
The respective obligations of CONTRACTOR and CUSTOMER under this
Agreement which by their nature would continue beyond the termination,
cancellation or expiration of the Agreement, shall survive termination,
cancellation or expiration.
30. APPLICABLE LAW
This Agreement, and the rights and obligations contained in it, shall
be governed by and construed in accordance with the laws of the State
of Florida, without regard to any conflicts of law principles that
would require the application of the laws of any other jurisdiction.
31. ENTIRE AGREEMENT
This Agreement represents the entire understanding between the parties
with the respect to the provisions and cancels and supersedes all prior
agreements or understandings, whether written or oral, with respect to
the subject matter. This Agreement may only be modified or amended by
an instrument in writing signed by duly authorized representatives of
the parties. No verbal changes to the scope of Services shall be
permitted, and CUSTOMER shall make no payment for Services performed
pursuant to verbal order or agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized representatives.
CUSTOMER: CONTRACTOR:
GTE DATA SERVICES G.M.B.H. CYBER DIGITAL, INC.
/s/ /s/ Xxxxxx X. Xxxxxx
------------------------------ ---------------------------
Xxxxxx X. Xxxxxx
/s/
------------------------------
Vice President
------------------------------ ---------------------------
(Title) (Title)
12-9-97 12-5-97
------------------------------ ---------------------------
(Date) (Date)
ATTEST:
---------------------------
Corporate Seal (If Applicable)
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SCHEDULE A
SERVICES
On the Commencement Date of this Agreement, or as soon thereafter as determined
by CUSTOMER, CONTRACTOR will make two (2) qualified persons available to perform
the services ("Services") described below:
SS7/AIN Technician ("Technician"). This individual will be responsible
for the implementation, turnup and ongoing maintenance of DSC SS7/AIN equipment.
This individual will manage approximately three DSC SS7/AIN switching
technicians and one or more DSC SS7/AIN database administrators.
SS7/AIN DataBase Administrator ("Administrator"). This person is
responsible for the installation and ongoing management of the DSC SS7/AIN
database and for the activation of SS7/AIN services and features.
Contracted individuals should be available for training in Dallas, Texas, one
week prior to deployment in Essen, Germany. Deployment in Essen, Germany shall
begin on October 1, 1997, or at a later date as determined by the CUSTOMER.
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EXHIBIT 1
POLICY CONCERNING SEXUAL HARASSMENT
It is the policy of CUSTOMER to provide a work environment free from all forms
of sexual harassment.
Any unwelcome sexual advances, requests or demands for sexual favors, and other
visual, verbal, or physical conduct of a sexual nature constitute sexual
harassment when:
o submission to such conduct is made either explicitly or implicitly a
term or condition of any individual's employment;
o submission to or rejection of such conduct by an individual is used as
a basis for employment decisions affecting individuals such as, but not
limited to, promotions;
o such conduct has the purpose or effect of unreasonably interfering with
an individual's work performance or creating an intimidating, hostile,
or offensive working environment.
CONTRACTOR shall instruct its employees that any such conduct while performing
Services for CUSTOMER or while on CUSTOMER's premises will not be tolerated and
CONTRACTOR shall take all necessary steps to insure that this policy is
enforced.
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EXHIBIT 2
POLICY CONCERNING ALCOHOL AND DRUGS
CONTRACTOR shall not permit its employees that are performing Services for
CUSTOMER to consume alcoholic beverages of any kind at any time during the
CONTRACTOR employee's tour of duty, including any extension of the tour, and
including all relief or lunch breaks associated with the CONTRACTOR employee's
tour of duty. CONTRACTOR shall not permit its employees that are performing
Services for CUSTOMER at any time, whether on or off duty, to drive a
CUSTOMER-owned vehicle after having consumed any kind of alcoholic beverage.
CONTRACTOR shall not permit any of its employees to enter CUSTOMER premises
while under the influence of alcohol. There can be no compromise in the
requirement that any individual who violates this policy is subject to removal.
Any CONTRACTOR employee found to be using, possessing, furnishing, selling or
soliciting the sale of any drug contrary to law on CUSTOMER property or during
hours that such employee is performing Services for CUSTOMER will be subject to
immediate removal from the promises and, in addition, will be reported to the
responsible law enforcement agency. There can be no compromise for any
individual who violates this policy.
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EXHIBIT 3
CONTRACTOR CODE OF ETHICS AND BUSINESS STANDARDS
BASIC RESPONSIBILITY
In traditionally placing the highest trust in the Fundamental Honesty and
Integrity of each employee, CUSTOMER in turn expects that each CONTRACTOR
employee's conduct should at all times reflect favorably upon CUSTOMER and all
of its employees.
Serving the public provides each of us with a great responsibility.
Consequently, there can be no compromise in the requirement that any individual
who violates CUSTOMER's Contractor Code of Ethics and Business Standards is
subject to removal.
SECRECY OF COMMUNICATIONS
Every communication of any type which is transmitted through the facilities of
CUSTOMER is the personal property of the person using the facilities. It is the
right of every person using CUSTOMER's services to have the absolute privacy of
its communication protected. The substance, content, or nature of every
telephone conversation or communication which is handled for CUSTOMER's
subscribers - or fact that there has been a conversation or communication - is
not be to divulged.
A CONTRACTOR employee may not use for his benefit, or for that of others, any
information derived from any conversation or communication from a subscriber, or
from records concerning a subscriber.
Unauthorized persons are not to be permitted to listen to or view any
communication handled. CONTRACTOR's employees must not monitor any connection
more then necessary for its proper supervision.
Information regarding the equipment, trunks, circuits, cables, and use of
facilities, nonpublished numbers, or ticket records of calls must not be given
to any unauthorized person.
Secrecy of communication is a fundamental policy of CUSTOMER, and is protected
by Federal and State laws which impose severe penalties upon any persons who
violate this secrecy.
Protection of CUSTOMER's investment in equipment, tools, supplies, and vehicles
against loss, theft, damage, vandalism, or unauthorized disposal is vitally
important. Tools, supplies, materials vehicles, telephones and other equipment
and facilities are purchased with CUSTOMER funds for CUSTOMER use. They belong
to CUSTOMER in every sense, and are not to be used for personal benefit of an
employee of
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CONTRACTOR; all unused or surplus CUSTOMER owned material is to be returned to
the closest storeroom before leaving the area.
Personal long distance calls are not to be charged to CUSTOMER telephones, nor
made on an unauthorized basis from switchboards, testboards, terminals, or other
facilities locations.
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