EXHIBIT 10.14
CONFIDENTIAL TREATMENT
----------------------
Contract Number
G12463P
Page 1 of 14
NYNEX
Assessment Systems, Inc. Telesector Resources Group
000 Xxxxx Xxxxxx XXXXX
Xxx Xxxx, X.X. 00000 000 Xxxx 00xx Xxxxxx
Attn: Xx. Xxxxxxx Xxxxxxxx New York, N.Y. 10016
Attn: Mr. Xxxx Xxxxxxx
Sourcing Process Leader
THIS AGREEMENT by and between Assessment Systems, Inc., a corporation with
an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 (hereinafter called
"Consultant"), and Telesector Resources, a corporation with an office at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. 00000 (hereinafter called "NYNEX").
W I T N E S S E T H:
-------------------
WHEREAS, NYNEX desires to have Consultant perform certain consulting work
for it; and
WHEREAS, Consultant desires to perform such work for NYNEX.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
and agreements hereinafter contained, the parties do hereby agree as follows:
1. Term: Scope of Work
-------------------
(a) This Agreement shall be effective on April 1, 1996 and shall end
November 1, 1996, provided that NYNEX may extend this Agreement for periods of
60 upon thirty days' written notice. Any termination or expiration of this
Agreement shall not affect the obligations of either party to the other under
existing Statements of Work issued under this Agreement, but such shall continue
in effect as though this Agreement had not been terminated.
(b) Consultant agrees to provide consulting services ("Services") to NYNEX
as described in Exhibit A, Statement of Work, agreed to the parties from time to
time, substantially in the form attached hereto as Exhibit A and incorporated
herein by reference.
Consultant will accept or reject any Statement of Work provided by NYNEX
within five business days of receipt. NYNEX may consider any Statement of Work
not rejected by Consultant in ten business days after it was sent to Consultant
as having been accepted.
The parties understand and agree that this is a non-exclusive agreement,
and NYNEX reserves the right to undertake all work on its own behalf or through
any third party.
(c) Any parent, affiliate or subsidiary company of NYNEX may obtain
services from Consultant under this Agreement pursuant to Statements of Work
substantially in the form of Exhibit A attached hereto.
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G12463p
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2. CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document
--------------------------------
has been filed separately with the Securities and Exchange Commission.
3. Assignment
----------
NYNEX and Consultant agree that this Agreement is personal in nature and
that neither party may assign its rights under this Agreement without the prior
written consent of the other party, except that:
(a) this Agreement may be assigned in whole or in party by NYNEX to any
entity controlling, controlled by or under common control with NYNEX (an
"Affiliate") upon written notice to Consultant; or
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G12463P
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(b) Consultant may assign the right to receive money due from NYNEX
providing that any assignment of monies shall be void and ineffective to the
extent that (i) Consultant fails to provide NYNEX at least thirty (30) days
prior written notice or (ii) the assignment attempts to impose upon NYNEX
obligations to the assignee additional to the payments of such monies, or
precludes NYNEX from dealing solely and directly with Consultant on all matters
pertaining to the Agreement.
(c) Any assignment not permitted by this paragraph shall be void and
ineffective.
4. Cancellations: Modifications
----------------------------
(a) NYNEX may cancel the services they ordered at any time. If NYNEX
cancels services it shall pay only for services already performed.
(b) NYNEX may modify services ordered by issuing a modified Statement of
Work. If the change alters the value of the services ordered, Consultant will
promptly notify NYNEX of any proposed changes in price, and Consultant shall
adjust the price accordingly, provided that as to price increases, unless an
increase is specified in this Agreement, any increase shall be an amount less
than or equal to the sum of the increased costs and expenses Consultant is able
to document.
5. No Subcontractors
-----------------
Consultant agrees not to subcontract any portion of the work to be
performed hereunder without the prior written consent of NYNEX.
6. Independent Contractor
----------------------
The status of Consultant to NYNEX hereunder shall be that of an independent
contractor and not any other relationship, including partner, agent or employee.
Consultant shall not make any representation to the contrary to any person.
Consultant shall not bind, or attempt to bind, NYNEX to any obligation with any
third party. In all of its activities under this Agreement, Consultants shall
act consistently with its status as an independent contractor. None of
Consultant's employees shall be deemed employees of NYNEX. NYNEX does not and
will not have actual, potential or any other control over Consultant or its
employees, except as otherwise expressly set forth in this Agreement.
7. Taxes
-----
Consultant agrees that it shall be its responsibility to withhold all
federal, state or local income taxes, social security taxes, unemployment and
other payroll taxes required by law to be withheld from the compensation of its
employees performing services hereunder.
8. Work Product
------------
(a) For the purposes of this Agreement, the term "Work Product" shall mean
all information, ideas, concepts, inventions, discoveries, developments or
improvements, whether of process, product, program, apparatus, design, method or
technique, marketing plan or presentation, or compilation of information,
technical information, business information, specifications, drawings, know-how
records, documentation, works of authorship and other creative works, and all
other knowledge and data, whether expressed in writing, orally or otherwise, and
whether or not protectable by patent, trademark, copyright or
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G12463P
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other applicable law, which are conceived, developed, acquired or first actually
reduced to practice or writing by or on behalf of Consultants, its employees,
its agents, or its contractors, alone or jointly with NYNEX employees or other
persons, as a result of or in connection with the performance by Consultant of
Services under this Agreement.
(b) Consultant agrees that it will disclose and furnish promptly to NYNEX
all Work Product originated or developed in connection with the performance of
services by Consultant under this Agreement. Consultant further agrees that all
such Work Product shall be NYNEX property, shall be kept in confidence by
Consultant and shall be used only for services performed under this Agreement,
and may not be used or copied for other purposes except upon such terms as may
be agreed upon between the parties hereto in writing.
9. Authorship and Copyright
------------------------
(a) The entire right, title and interest, including copyright and other
proprietary rights, in all original works of authorship fixed in any tangible
medium of expression heretofore or hereafter originated or developed by
Consultant as part of the services covered by this Agreement, shall be
transferred to and vested in NYNEX. The parties expressly agree to consider as
works made for hire all Work Product ordered or commissioned by NYNEX which
qualify as such in accordance with the copyright laws. For all such original
works, Consultant agrees to provide documentation satisfactory to NYNEX to
assure the conveyance of all such right, title and interest, including
copyright, to NYNEX. The cost of conveying such right shall be at NYNEX's
expense. In the event that the Work Product is deemed not to be a work made for
hire, Consultant hereby irrevocably transfers, assigns and conveys the exclusive
copyright ownership thereof to NYNEX, free and clear of any liens, claims or
other encumbrances, to the fullest extent permitted by law.
(b) Consultant warrants the originality of the Work Product prepared for
NYNEX hereunder, its disclosure to NYNEX exclusively and that no portion of the
Work Product prepared for NYNEX under this Agreement is derived from any work
owned by another party.
(c) In the event that third party work or Consultant's reused software or
data are used in the development of, or are incorporated within, materials to be
delivered pursuant to this Agreement, then Consultant will notify NYNEX and will
obtain for NYNEX a non-exclusive, royalty-free worldwide license to make, use,
sell and sublicense such work, software, or data.
10. Inventions
----------
(a) Consultant agrees that if any inventions, discoveries or improvements
are conceived, first reduced to practice, made or developed, in the course of,
or as a result of, the performance of services by Consultant under this
Agreement, Consultant will assign to NYNEX Consultant's right, title and
interest in and to such inventions, discoveries and improvements, and any
patents, copyrights or other forms of legal protection that may be granted
thereon in any country of the world.
(b) Consultant further agrees that, without charge to NYNEX, Consultant
will sign all papers and do all acts which may be necessary, desirable or
convenient to enable NYNEX at its expense to file and prosecute applications for
patents on such inventions, discoveries and improvements, and to maintain
patents granted thereon. Consultant also agrees to acquire from Consultant's
employees, agents and contractors who perform services under this Agreement,
such assignment and rights as to assure that NYNEX shall receive all of the
rights provided for in this Agreement.
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G12463P
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Consultant shall provide a copy of all documents to show that all Intellectual
Property developed by its employees, agents and contractors has been transferred
to Consultant.
11. Consultant's Information
------------------------
No information (such as specifications, drawings, sketches, models,
samples, tools, computer or other apparatus programs, technical or business
information or data, written, oral or other) furnished by Consultant to NYNEX
under this Agreement shall be considered to be confidential or proprietary to
Consultant, unless the information is specifically covered by a separate
nondisclosure agreement signed by both parties to this Agreement. If the
nondisclosure agreement was signed prior to this Agreement it will only be
effective if attached to this Agreement as an Exhibit and is specifically
incorporated by reference in this Agreement.
12. NYNEX Information
-----------------
(a) Any NYNEX information furnished to Consultant under this Agreement or
that Consultant comes in contact with on NYNEX premises or under NYNEX control
shall remain NYNEX property. All copies of such information in written, graphic
or other tangible form, and all Work Product derived from or reflecting such
information, shall be returned or sent to NYNEX at its request. No copies shall
be made of any documents or other media provided by NYNEX without the prior
written consent of NYNEX. Unless such information was previously known to
Consultant free of any obligation to keep it confidential, or has been or is
subsequently made public by NYNEX or a third party without breach of any
agreement, it shall be kept confidential by Consultant and shall be used only in
performing services under this Agreement, and may not be used for other purposes
except upon such terms as may be agreed upon between Consultant and NYNEX in
writing. NYNEX may require Consultant or its employees, agents or
representatives to sign a separate written agreement protecting NYNEX
proprietary information.
(b) Consultant agrees not to advertise, promote or publicize matters
relating to the services performed or furnished under this Agreement or to
mention or imply any relationship or connection with NYNEX or any of its
Affiliates in any of its advertising, promotions or publicity without the prior
written consent of NYNEX.
13. Government Laws and Regulations.
-------------------------------
Consultant agrees, in connection with the performance of services
hereunder, to comply with all applicable federal, state, or local 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. Consultant 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 Agreement of even date herewith
executed by Consultant and attached hereto. Consultant 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 Consultant shall not export directly or indirectly, any U.S.
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.
Contract Number
G12463P
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Consultant agrees not to bring any toxic or hazardous material onto the property
of NYNEX without the prior written permission of NYNEX. Consultant agrees to be
responsible for the handling and management of all such toxic or hazardous
materials that it uses in providing services under this Agreement. Consultant
shall not bring any toxic or hazardous materials on the premises of NYNEX
without first notifying NYNEX in writing and providing NYNEX with an appropriate
MSDS.
14. New York PSC Audits
-------------------
Consultant represents that it has fully disclosed any engagements for
management or operational audits of New York Telephone Company as mandated by
the New York Public Service Commission that it or any of its affiliates have
been involved in, and that such audits along with the dates of such audits, are
attached to this Agreement.
15. Records
-------
Consultant agrees to maintain records of its activities under this
Agreement in accordance with its established procedures for four (4) years after
the termination of this Agreement. NYNEX shall have the right to audit or review
the records of Consultant relating to the work performed, and any expenses
incurred, in connection with this Agreement.
16. Specifications; Best Efforts
----------------------------
Consultant will perform services under this Agreement in compliance with
all government and industry standards and specifications, including any
standards and specifications published by Consultant, unless previously rejected
by NYNEX. Consultant agrees to undertake this assignment on a professional best
efforts basis and that its findings and recommendations will reflect its best
professional judgment based on the information available to it. Consultant will
perform its duties hereunder with promptness and diligence and in accordance
with the highest professional standards in Consultant's field.
Consultant shall comply with any trip or scheduling requirements needed for
the timely performance of Services. NYNEX shall not be obligated to accept or
pay Consultant for late or untimely performance. If the services do not conform
with the requirements of this Agreement, then NYNEX, in addition to any other
rights it may have under law or this Agreement, may reject some or all of the
services. If NYNEX reasonably believes that Consultant cannot or will not be
able to properly perform the services on schedule, NYNEX may have another party
perform some or all of the services, with any incurred costs being borne by
Consultant.
17. Successors and Assigns
----------------------
This Agreement shall inure to the benefit of, and shall be binding upon,
the parties hereto and their respective successors and permitted assigns.
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G12463P
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18. Indemnification
---------------
Consultant agrees to indemnify and hold NYNEX and its 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 Consultant's 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 information or
materials provided, developed or originated by Consultant; (ii) by anyone for
injuries (including death) to persons or damage to property (including theft) or
other cause of action resulting from Consultant's acts or omissions or those of
persons furnished by Consultant while performing work for NYNEX pursuant to this
Agreement or in connection with materials furnished by Consultant pursuant to
this Agreement; (iii) by persons furnished by Consultant or any subcontractors
under worker's compensation or similar acts; (iv) in connection with the
services contemplated by this Agreement; or (v) under any federal securities
laws, or under any other statute, at common law or otherwise, arising out of or
in connection with the services contemplated by this Agreement or any
information obtained in connection with the performance of such services. NYNEX
agrees to notify Consultant promptly of any written claims or demands against
NYNEX for which Consultant is responsible hereunder and NYNEX shall be entitled,
at its option, to assume the defense or settlement of any such claim. Consultant
shall promptly reimburse NYNEX for Indemnified Amounts as they are incurred.
19. Designated Representative
-------------------------
For purposes of Services provided under this Agreement, the designated
representative of NYNEX shall be the person indicated on the Statement of Work
governing such Services. Consultant shall be entitled to rely on the foregoing
designation until notified in writing of a change in NYNEX's designated
representative.
20. Insurance
---------
Consultant 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
for a combined single limit of at least $1,000,000 per occurence for bodily
injury and property damage with a policy aggregate of $2,000,000; (iii)
Comprehensive Automobile Liability insurance for a combined single limit of
$1,000,000 per occurrence; and (iv) Professional Errors and Omissions insurance
in an amount of $1,000,000 per occurrence with a policy aggregate of $2,000,000.
Consultant shall deliver a certificate of insurance on which NYNEX is named as
an additional insured with reference to (ii) above. Furthermore, NYNEX must
receive at least ten (10) days' notice of cancellation or modification of the
above insurance.
21. Impleader and Limited Liability of NYNEX
----------------------------------------
Consultant agrees not to implead or bring any action against NYNEX
(including its parent, affiliate or subsidiary companies), its successors,
assigns, employees or officers based on any claim by any of its employees for
personal injury or death that occurs in the course or scope of employment of
such person. Consultant also agrees that neither NYNEX nor any of its parent,
affiliate or subsidiary companies shall be liable for any consequential,
punitive or exemplary damages for any acts or failure to act under this
Agreement.
Contract Number
G12463P
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22. Work Conditions
---------------
By executing this Agreement and by agreeing to any Statement of Work under
this Agreement, Consultant acknowledges that it is fully informed as to the
nature and location of the work, the physical, climatic and other conditions
prevailing at the worksite, and all other matters which may affect the work, the
cost thereof or the time for performing the work. If a Statement of Work
requests that Consultant performs services for which it is not fully informed
with respect to any of these matters, Consultant must notify NYNEX in writing
prior to acceptance.
23. Notices
-------
Any notice to be given hereunder by either party shall be in writing and
shall be deemed to have been given five (5) days after deposit in registered or
certified mail, return receipt requested, or immediately if delivered by hand,
by overnight courier or by telecopier, addressed as follows:
If to Consultant: Assessment Systems, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xx. Xxxxxxx Xxxxxxxx
Telephone No. 000 000-0000
Fax No. 000 000-0000
If to NYNEX: NYNEX
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Mr. Xxxx Xxxxxxx
Sourcing Process Leader
Telephone No. 212338-7254
Fax No. 000 000-0000
or to such other address as may be designated in writing by either party in
accordance herewith.
24. Choice of Law
-------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
WITHIN SUCH STATE WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW. ALL
ACTIONS UNDER THIS AGREEMENT SHALL BE BROUGHT IN A COURT OF COMPETENT SUBJECT
MATTER JURISDICTION IN NEW YORK AND BOTH PARTIES AGREE TO ACCEPT THE PERSONAL
JURISDICTION OF SUCH COURT.
Contract Number
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25. Amendments
----------
No modification, alteration or amendment of this Agreement shall be
effective unless contained in a writing signed by both parties and specifically
referring hereto.
26. Non-Waiver
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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.
27. Severability
------------
In the event that one or more provisions contained in this Agreement are
for any reason held to be unenforceable in any respect under the laws of the
jurisdiction governing the Agreement, 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.
28. Captions and Interpretations
----------------------------
28.1 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.
28.2 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 may withhold the consent or
permission for any reason or no reason at all.
29. Gifts and Gratuities and Conflicts of Interest
----------------------------------------------
29.1 Consultant certifies that, to the best of its knowledge and belief, no
economic, beneficial employment or managerial relationship exists between
Consultant and any employee of NYNEX or its parent, affiliate or subsidiary
companies, or between Consultant and any relative of an employee of NYNEX or
any such companies, which would tend in any way to influence such employee in
the performance of his or her duties on behalf of NYNEX or its parent, affiliate
or subsidiary company in connection with the awarding, making, amending or
making determinations concerning the performance of this Agreement.
29.2 The exchange or offering of any money, gift item, personal service,
entertainment or unusual hospitality by either party to this Agreement to the
other party is expressly prohibited. This prohibition is equally applicable to
either party's officers, employees, agents or immediate family members. Any
violation of this provision constitutes a breach of this contract.
29.3 NYNEX may, by written notice to Consultant, terminate Consultant's right to
proceed under this Agreement without any liability whatsoever on the part of
NYNEX if NYNEX finds:
(a) that Consultant violated the certification contained in this
section regarding any conflict of interest; or
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(b) that gratuities (as discussed in this paragraph) were offered or
given by Consultant or any of its employees, agents or representatives, to
any officer or employee of NYNEX or its parent, subsidiary or affiliate
companies awarding, making, amending an agreement or securing favorable
treatment with respect to the performance of such agreement.
29.4 In the event this Agreement is terminated as provided in this section NYNEX
shall be entitled to pursue the same remedies against Consultant as it could
pursue in the event of a breach of the Agreement by Consultant.
29.5 The rights and remedies of NYNEX in this clause shall not be exclusive and
are in addition to any other rights and remedies provided by law or under this
Agreement.
30. Survival of Obligations
-----------------------
Consultant 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.
31. Termination
-----------
NYNEX may terminate this Agreement at any time by giving written notice to
Consultant. In such event, Consultant shall be entitled hereunder only to
charges for work actually performed and expenses actually incurred prior to the
date of termination, in each case in accordance with Section 2 hereof.
32. Entire Agreement
----------------
This Agreement constitutes the entire agreement and understanding between
the parties with respect to the subject matter hereof and merges and supersedes
all prior discussions and writings with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
ASSESSMENT SYSTEMS, INC. NYNEX
By /s/ Xxx Xxxxx By /s/ Xxxxxx Xxxx
---------------------- ---------------------
Name XXX XXXXX Name XXXXXX XXXX
--------------------- -------------------
print print
Title EVP Title DIRECTOR
-------------------- ------------------
Date 10 MAY 1996 Date 5/14/96
--------------------- -------------------
Contract Number
G12463P
Page 11 of 14
EXHIBIT A
STATEMENT OF WORK
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document
has been filed separately with the Securities and Exchange Commission.
Contract Number
G12463P
Page 12 of 14
EXHIBIT A
STATEMENT OF WORK (con't)
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document
has been filed separately with the Securities and Exchange Commission.
Designated NYNEX Representatives:
NYNEX NYNEX
1095 Ave. of the Americas, 2nd floor 000 Xxxx 00xx Xxxxxx, 15th floor
New York, N.Y. 10036 New York, N.Y. 10016
Attn: Xx. Xxx X'Xxxx Attn: Mr. Xxxx Xxxxxxx-SPL
000-000-0000 000-000-0000
NYNEX
1095 Ave. of the Xxxxxxxx, 0xx xxxxx
Xxx Xxxx, X.X. 00000
Attn: Xx. Xxxxxxx Xxxxx
000-000-0000
Contract Number
G12463P
Page 13 of 14
EXHIBIT B
COMPENSATION
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document
has been filed separately with the Securities and Exchange Commission.
Each invoice submitted shall reflect a brief description of the services
performed during that period.
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document
has been filed separately with the Securities and Exchange Commission.
INVOICES TO: COPIES OF INVOICES TO:
NYNEX NYNEX
1095 Ave of the Americas, 2nd floor 000 Xxxx 00xx Xxxxxx, 15th floor
New York, N.Y. 10036 New York, N.Y. 10016
Attn: Xx. Xxx X'Xxxx Attn: Mr. Xxxx Xxxxxxx - SPL
000 000-0000 000 000-0000
Contract Number
G12463P
Page 14 of 14
EXHIBIT B
COMPENSATION (con't)
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the
document has been filed separately with the Securities and Exchange Commission.
ACCEPTED AND AGREED:
-------------------
ASSESSMENT SYSTEMS, INC. NYNEX
/s/ Xxx Xxxxx /s/ Xxxxxx Xxxx
By:___________________________ By:___________________________
Xxx Xxxxx Xxxxxx Xxxx
Name:_________________________ Name:_________________________
print print
EVP Director
Title:________________________ Title:________________________
10 May 1996 5/14/96
Date:_________________________ Date:_________________________
i/c/w Contract No. G12463P
NON-DISCLOSURE AGREEMENT
------------------------
This agreement, made and entered into this 15th day of April, 1996, by and
between Assessment Systems, Inc., a corporation having an office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000 (hereinafter referred to as "CONSULTANT") and
Telesector Resources Group, Inc, ("NYNEX"), a corporation duly organized and
existing under the laws of the State of Delaware and having an office at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. NYNEX shall remain and include
Telesector Resources Group, Inc., its holding and parent companies, and its or
their affiliates and subsidiaries.
WITNESSETH THAT:
WHEREAS, in order for CONSULTANT to provide consultant services to NYNEX it may
be necessary or desirable for NYNEX to disclose to CONSULTANT certain
confidential and proprietary material, information, data, and other
communications concerning NYNEX's past, current, future and proposed or
potential customers, products, services, operations, business forecasts,
procurement requirements, plans strategies and technology; and
WHEREAS, CONSULTANT and NYNEX wish to define the agreed upon terms and
conditions governing the confidentially of material, information and data
furnished and to be furnished by NYNEX to CONSULTANT in connection with its
present and future business plans.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and
undertakings expressed herein, agree with each other as follows:
1. For the purposes of this Non-Disclosure Agreement, the term "Confidential
Information" shall mean material, information, data and other communications
(a) disclosed by NYNEX and/or one or more of its parent, subsidiary or
affiliated corporations, appropriately marked as "Confidential," "Proprietary"
or the like or otherwise disclosed in a manner consistent with its proprietary
and confidential nature; or (b) produced during the course of the working
relationship between NYNEX and CONSULTANT, which would either give NYNEX'
competitors an advantage or diminish or eliminate NYNEX' advantage over its
competitors.
2. ALL NYNEX Confidential Information:
(a) is hereby acknowledged by CONSULTANT to be of a proprietary nature to,
and to constitute secrets of NYNEX;
(b) shall not be copied, used, distributed, disclosed, disseminated or
communicated in any way or form by CONSULTANT whether or not for its own
benefit, to anyone outside or within its own organization, except on a
"need-to-know" basis to the extent necessary for: (i) negotiations, discussions
and consultations with personnel or authorized representatives of NYNEX; (ii)
supplying NYNEX with products or services at its order; (iii) preparing bids,
estimates and proposals for submission to NYNEX; and (iv) any other purpose
which NYNEX may authorize in writing;
(c) shall not be used by CONSULTANT for any purposes other than those set
forth herein, without the experts prior written permission of NYNEX;
(d) shall be held by CONSULTANT in the strictest confidence, and shall be
treated by it with the same degree of care to avoid disclosure to any third
party as is used with respect to CONSULTANT'S own information of like
importance, or, a minimum, shall be treated with a reasonable degree of care to
avoid any such disclosure. CONSULTANT shall be liable for the disclosure of
Confidential Information of
NYNEX if such care is not used. The burden shall be upon CONSULTANT to show that
such care, in fact, was used; and
(e) Confidential Information is hereby acknowledged by CONSULTANT to be
the sole property of NYNEX and shall be returned to NYNEX (including, without
limitation, all materials, documents, drawings, models, apparatus, sketches,
designs, specifications and lists, encompassing or evidencing same or related
thereto, and all copies/formats thereof), within seven (7) days after receipt by
CONSULTANT of a written request from NYNEX setting forth the Confidential
Information to be returned. Upon receipt of such request, CONSULTANT also shall
erase or destroy any such Confidential Information in any computer memory or
data storage apparatus.
3. The obligations set forth in Paragraph 2 hereof shall not apply, or shall
terminate, with respect to any particular portion of NYNEX Confidential
Information which:
(a) was in CONSULTANT's possession, free of any obligation of confidence,
prior to receipt from NYNEX, as proven by CONSULTANT's written records;
provided, however, that CONSULTANT immediately informs NYNEX, in writing, to
establish its prior possession;
(b) is already in the public domain at the time NYNEX communicates it to
CONSULTANT, or becomes available to the public through no breach of this
Non-Disclosure Agreement by CONSULTANT;
(c) is received independently from a third party free to disclose such
information to CONSULTANT;
(d) is developed by CONSULTANT, independently of and without reference to
any Confidential Information of NYNEX or any other information that NYNEX has
disclosed in confidence to any third party, as proven by CONSULTANT's written
records;
(e) is disclosed by CONSULTANT to a third party, with the express prior
written permission of NYNEX;
(f) is disclosed by CONSULTANT in order to satisfy any legal requirement
of any competent government body; provided, however, that immediately upon
CONSULTANT's receipt of any such request, CONSULTANT shall first advise NYNEX of
same before making any disclosure to such body, so that NYNEX may either
interpose an objection to such disclosure before such body, or take action to
assure confidential handling of the Confidential Information by such body, or
take other action to protect the Confidential Information which NYNEX deems
appropriate under the circumstances; or
(g) in any event, five (5) years after the date of execution of this
Non-Disclosure Agreement.
4. Nothing contained in this Non-Disclosure shall be construed as obligating
NYNEX to disclose any particular information to CONSULTANT.
5. Nothing contained in this Non-Disclosure Agreement shall be construed as
granting to or conferring on CONSULTANT, expressly or impliedly, any rights, by
license or otherwise, to the Confidential Information of NYNEX or any other
material, information or data, or any invention, discovery, improvement or
product conceived, made or acquired prior to, on or after the date of this
Non-Disclosure Agreement.
6. CONSULTANT warrants and represents that CONSULTANT has bound its employees,
agents and subcontractors to the terms and conditions of this Agreement or that
each and every employee, agent or subcontractor has personally executed a
Non-Disclosure Agreement containing terms and conditions no less stringent than
the terms and conditions contained herein; and furthermore CONSULTANT hereby
agrees to indemnify, hold harmless and defend NYNEX from and against any loss,
cost, damage, expense or claim arising out of any breach of this provision or
the failure of CONSULTANT or its employees, agents or subcontractors to protect
such Confidential Information.
7. This Non-Disclosure Agreement shall become effective upon the day and year
first written, and shall remain in effect until terminated in writing by either
party. Notwithstanding any such termination, the rights and obligations with
respect to the disclosure of Confidential Information set forth herein shall
survive the termination of this Non-Disclosure Agreement.
8. CONSULTANT further agrees that it shall not, without the prior written
consent of NYNEX, make any news release, public announcement, or denial or
confirmation of all or any part of the discussions or negotiations, or in any
manner advertise or publish the fact that the parties have entered into
discussions or negotiations with each other, or disclose any details connected
with such discussions or negotiations to any third party, including any
disclosure with respect to this Non-Disclosure Agreement, the negotiations
culminating herein, or any phase of any program hereunder.
9. No term or provision of this Non-Disclosure Agreement shall be deemed
waived, and no breach excused, unless such waiver or consent shall be in writing
and signed by the party claimed to have waived or consented. Any consent by any
party to, or waiver of, a breach by the other, whether express or implied, shall
not constitute a consent to waiver of, or be cause for, any other, different or
subsequent breach.
10. The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the laws of the State of New York.
ASSESSMENT SYSTEMS, INC. NYNEX
By: /s/ Xxx Xxxxx By: /s/ Xxxxxx Xxxx
---------------------------- ---------------------------
Name: XXX XXXXX Name: XXXXXX XXXX
-------------------------- -------------------------
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Title: EVP Title: DIRECTOR
------------------------- ------------------------
Date: 10 MAY 1996 Date: 5/14/96
-------------------------- -------------------------
NYNEX
CONTRACT NO. G12463P
AMENDMENT NO. 01
ACCEPTANCE SHALL BE INDICATED BY
(1) SIGNING AND (2) RETURNING DUPLICATE
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Assessment Systems, Inc. Telesector Resources Group, Inc
000 Xxxxx Xxxxxx, 00xx floor (A NYNEX Company)
Xxx Xxxx, X.X. 00000 000 Xxxx 00xx Xxxxxx, 00xx floor
Attn: Xx. Xxxxxxx Xxxxxxxx New York, N.Y. 10016
Attn: Mr. Xxxx Xxxxxxx - SPL
SERVICE: Testing, assessment and interview process of additional field
personnel.
Telesector Resources Group, Inc., (herein after referred to as NYNEX) Agreement
with you No. G12463P is amended as follows:
Effective July 9th, 1996, Exhibit A--Statement of Work, will be expanded to
provide services for additional NYNEX field personnel, and Exhibit
B--Compensation, will be modified to provide for compensation for the additional
service. Exhibits A and B are attached and are made part of the Agreement.
All other Terms and Conditions of the Agreement are reaffirmed and remain in
effect to the extent that they do not conflict with this Agreement.
(1) Sign Here and (2) Return To Address Above:
-----------------------------------------
TELESECTOR RESOURCES GROUP, INC.
ASSESSMENT SYSTEMS, INC. (A NYNEX COMPANY)
By /s/ Xxx Xxxxx By /s/ Xxxxxx Xxxx
---------------------------------- -----------------------------
Title EXEC. V.P Title Dir Strategic Servicing
-------------------------------- ---------------------------
Name XXX XXXXX Name XXXXXX XXXX
-------------------------------- ----------------------------
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Accepted: Date 24 July 1996
------------
Contract # G12463P
Amendment No.01
EXHIBIT A
STATEMENT OF WORK
This Amendment to the Statement of Work, entered into by Assessment
Systems, Inc. ("ASI") and NYNEX pursuant to the terms and conditions of the
Consulting Agreement between the parties dates July 9,1996.
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document
has been filed separately with the Securities and Exchange Commission.
AGREED AND ACCEPTED:
Assessment Systems, Inc. Telesector Resources Group, Inc.
(A NYNEX Company)
By: /s/ Xxx Xxxxx By: /s/ Xxxxxx Xxxx
------------------------ ------------------------
Name: Xxx Xxxxx Name: Xxxxxx Xxxx
------------------------ ------------------------
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Title: Executive Vice President Title: Dir. Strategic Services
------------------------ ------------------------
Date: 24 July 1996 Date: 5 August 1996
------------------------ ------------------------
Contract # G12463P
Amendment No.01
EXHIBIT B
COMPENSATION
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document
has been filed separately with the Securities and Exchange Commission.
NYNEX
CONTRACT NO. G12463P
AMENDMENT NO.01
ACCEPTANCE SHALL BE INDICATED BY
(1) SIGNING AND (2) RETURNING DUPLICATE TO:
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Assessment Systems, Inc. Telesector Resources Group, Inc.
000 Xxxxx Xxxxxx 000 X. 00xx Xxxxxx, 00xx Xxx.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx Attn: Xxxx Xxxxxxx
SERVICE: Consulting Services.
NYNEX Telesector Resources, Group, Inc. Agreement with you No. G12463P dated
April 1, 1996, as hereto modified by Amendment No. 01 is hereby amended as
follows:
The section marked "Term; Scope of Work" subsection (a) is hereby changed to
read:
"This Agreement shall be effective on April 1, 1996 and shall end February 28,
1997, provided that NYNEX may extend this Agreement for periods of 90 days upon
thirty days' written notice. Any termination or expiration of this Agreement
shall not affect the obligations of either party to the other under existing
Statements of Work issued under this Agreement, but such shall continue in
effect as though this Agreement had not been terminated"
All other Terms and Conditions of the Agreement are reaffirmed and remain in
effect to the extent that they do not conflict with this Agreement.
(1) Sign Here and (2) Return To Address Above:
---- -----------------------
Accepted:
Assessment Systems, Inc. Telesector Resources Group, Inc.
(A NYNEX Company)
By /s/ Xxx Xxxxx By /s/ Xxxxxx Xxxxxxxx
------------------------------- ---------------------------------
Name XXX XXXXX Name XXXXXX XXXXXXXX
----------------------------- -------------------------------
Title EVP Title DIRECTOR - SOURCING PROCESS LEADER
---------------------------- ------------------------------
Date 12-24-96 Date 1/6/97
----------------------------- -------------------------------
NYNEX
CONTRACT NO. G12463P
AMENDMENT NO. 03
ACCEPTANCE SHALL BE INDICATED BY
(1) SIGNING AND (2) RETURNING DUPLICATE
------- -------------------
Assessment Systems, Inc. Telesector Resources Group, Inc.
000 Xxxxx Xxxxxx (X XXXXX Xxxxxxx)
Xxx Xxxx, X.X. 00000 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Attn: Xx. Xxxxxxx Xxxxx New York, N.Y. 10016
Attn: Mr. Xxxx Xxxxxxx - SPL
Telesector Resources Group, Inc., (known now as NYNEX), Agreement with you No.
G12463P dated April 1, 1996, and Amended by Amendment No. 01 and Amendment No.
02, is further modified by Amendment No. 03 as follows:
Effective March 3, 1996, the contract expiration date will be extended until
May 1, 1997.
In addition, the Scope/Statement of Work will be expanded to include services as
identified on Exhibit A, attached.
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the document has
been filed separately with the Securities and Exchange Commission.
All other Terms and Conditions of the Agreement are reaffirmed and remain in
effect to the extent that they do not conflict with this Agreement.
(1) Sign Here and (2) Return To Address Above:
--------- -----------------------
TELESECTOR RESOURCES GROUP, INC.
ASSESSMENT SYSTEMS, INC. (A NYNEX Company)
By /s/ Xxx Xxxxx By /s/ Xxxx X. Xxxxxxx
--------------------------------- ------------------------------
Title EVP Title Sourcing Process Leader
------------------------------- ---------------------------
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Date: 2-11-97 Date: 4 February 1997
------------------------------- ---------------------------
EXHIBIT A
STATEMENT OF WORK
SERVICE REPRESENTATIVE SELECTION
STATEMENT OF CONSULTANT WORK AND
ASSESSMENT SYSTEMS INCORPORATED (ASI) FEE ESTIMATES
CONFIDENTIAL TREATMENT REQUESTED: A copy of this portion of the
document has been filed separately with the Securities and Exchange Commission.
Designated NYNEX Representative:
Mr. Xxxxx Xxxxxxxx
Managing Director - Marketing
1095 Avenue of the Xxxxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
000-000-0000
AGREED AND ACCEPTED:
TELESECTOR RESOURCES GROUP, INC.
ASSESSMENT SYSTEMS, INC. (A NYNEX COMPANY)
By: /s/ Xxx Xxxxx By: /s/ Xxxx X. Xxxxxxx
----------------------------- -----------------------------
Name: Xxx Xxxxx Name: Xxxx X. Xxxxxxx
--------------------------- ---------------------------
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Title: Exec V.P. Title: Sourcing Proc. Ldr.
-------------------------- --------------------------
Date: 11 February 1997 Date: 4 February 1997
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