1
EXHIBIT 10.10
AGREEMENT FOR SERVICES
This Agreement is made this 6th day of October, 1999, by and between Telamon-IMS
Inc., a corporation duly organized and existing under the laws of the State of
Indiana and having its principal place of business at 0000 X. 000xx Xxxxxx,
Xxxxxx, Xxxxxxx 00000 ("Contractor"), and Telocity Corporation (including its
affiliates and subsidiaries), a corporation duly organized and existing under
the laws of the State of California and having its principal place of business
at 00000 X. Xx Xxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx, 00000-0000 ("Customer").
In consideration of the promises, mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, Customer
and Contractor agree as follows:
1. TERM
This Agreement shall commence on October 15th, 1999, and expire on April 15th,
2000, (the "Initial Term") and shall continue in such full force and effect for
successive periods of one year thereafter unless terminated by either party by
giving notice in writing by registered mail at least 30 days prior to the
expiration of any such yearly period. The parties may extend the Initial Term by
executing a separate written agreement of extension prior to the expiration of
the Initial Term.
2. TERMINATION OF AGREEMENT FOR CONVENIENCE
2.1 Either party shall, in addition to its rights to cancel this Agreement
for default, have the right for its convenience to terminate this
agreement without cause during the Initial Term or any extension
thereof by giving the other party at least ninety (90) days written
notice of termination specifying the extent to which the Agreement is
terminated and the date upon such termination becomes effective.
2.2 Upon notice of termination:
2.2.1 Contractor shall stop work under the Agreement on the date and
to the extent specified;
2.2.2 Both parties shall place no further contracts except as may be
necessary for completing such portions of the Agreement as
have not been terminated;
2.2.3 Both parties shall take all reasonable efforts to terminate
any contracts with third parties that relate to the portions
of this Agreement that have been terminated to the extent they
can do so without breaching those third-party agreements; and
1
2
2.2.4 Contractor shall take such action as may be necessary to
protect and preserve the property related to the Services
which is in Contractor's possession and which was provided by
Customer.
2.3 Termination of this Agreement shall not affect either Customer's or
Contractor's pre-termination obligations hereunder and shall be without
prejudice to enforcement of any discharged obligations existing at the
time of termination.
2.4 Neither party shall be liable for damages, loss, anticipated profit, or
unabsorbed indirect costs of overheads or any other losses or claims
whatsoever on account of or arising out of termination of this
Agreement for convenience.
3. SCOPE OF SERVICES
The description of the Services, together with the location(s), time(s) of
performance, and Performance Standards are described in the attached Service
Schedule made a part hereof by this reference. Services shall be performed upon
such terms as set forth in the Service Schedule(s) and this Agreement unless
expressly modified or amended in writing by the parties.
4. SERVICE FEE
As consideration for Contractor's performance of the Services, Customer agrees
to pay Contractor the Service Fee(s) set forth in the Service Schedule(s). The
Service Fee shall constitute the total financial obligation of Customer to
Contractor.
5. INVOICES AND PAYMENTS
Contractor shall issue invoices in the format required by Customer within thirty
(30) days following the completion of the Services. Invoices for completed
Services shall be paid within thirty (30) days following receipt of an invoice.
All amounts past due over thirty (30) days shall bear interest from the due date
until paid at the rate of two (2) percent per month or such lesser rate as may
be the maximum permissible rate under applicable law.
6. CANCELLATION OF AGREEMENT FOR DEFAULT
Should either party at any time (1) become the subject of bankruptcy proceedings
not terminated within thirty (30) days of any filing, make a general assignment
for the benefit of creditors, make or permit the appointment of a receiver for
all or substantially all or its property, or (2) fail or refuse to prosecute its
obligations hereunder diligently or perform any other requirement of this
Agreement and not cure such failure within (30) days after written notice
thereof from the other party, the other party shall have the right, at its
election and without prejudice to any other remedies, to cancel this Agreement
in whole or in part.
2
3
7. FURNISHING OF LABOR, TOOLS, EQUIPMENT AND MATERIAL
Contractor shall furnish, at its own expense, all labor, supervision, machinery,
tools, equipment, fuel, power, materials, expandable supplies, transportation,
licenses, permits, bonds and all other items, whether of the type described or
not, that may required or appropriate in the performance of the Services covered
by this Agreement except such items which may be specifically provided to be
furnished by Customer. All materials, supplies, and other items purchased by
Contractor shall be in Contractor's own name and account. Contractor shall be
responsible for all freight and delivery, costs of materials, supplies,
equipment, and other items on the work site and shall be responsible for
intransit loss or damage.
8. PROPRIETARY INFORMATION
All marketing information designated by either party as confidential, the
Customer's list of customers, and technical information, specifications,
drawings, documentation, methods and other proprietary information of any kind
and description whatsoever disclosed by either party to the other under this
Agreement, except insofar as such information is (i) in the public domain, (ii)
established to have been independently developed and so documented by the other
party or (iii) obtained by the other party from any person not in breach of
confidentiality obligations to the disclosing party, is the exclusive property
of the disclosing party (the "Proprietary Information"). Except as specifically
authorized in writing by the disclosing party or as permitted hereunder, the
nondisclosing party shall treat and protect the Proprietary Information as
confidential, shall not reproduce the Proprietary Information except to the
extent reasonably required for the performance of this Agreement, shall not
divulge the Proprietary Information in whole or in part to any third parties,
and shall use the Proprietary Information only for purposes necessary for the
performance of this Agreement. This obligation shall survive the termination of
this Agreement. Each party shall disclose the Proprietary Information only to
those of its employees and agents who have a "need-to-know" the Proprietary
Information for the purposes described herein after first making such employees
or agents aware of the confidentiality obligation set forth above.
9. INDEPENDENT CONTRACTOR
The parties represent that they are engaged in an independent business and will
perform their obligations under this Agreement as an independent contractor and
not as the agent or employee of the other party. Each party is solely
responsible for its acts and those of its personnel. Each party has and retains
the right to exercise full control of and supervision over the employment,
direction, compensation and discharge of all personnel assisting in the
performance of its obligations. Each is solely responsible for
3
4
compensation to its personnel and each party shall comply with workers'
compensation, unemployment, disability applicable federal, state and local laws,
rules and regulations.
10. INDEMNITY
10.1 Each party hereto shall indemnify and save the other harmless from any
liabilities, claims or demands (including the costs, expenses and
reasonable attorney's fees on account thereof) that may be made by
anyone for personal injuries, including death, or damage to tangible
property, including theft, resulting from the negligence and/or willful
misconduct of that party, its employees and agents. Each party shall
defend the other at the other's request against any such liability,
claim or demand. Each party shall notify the other promptly of written
claims or demands against such party of which the other party is
responsible hereunder.
10.2 Customer shall indemnify Contractor for any loss, damage, expense or
liability including, without limitation, court costs and attorney's
fees that may result by reason of any infringement or claim of
infringement of any patent, trademark, copyright, trade secret or other
property right relating to Service furnished pursuant to this
Agreement. Customer shall defend and/or settle at its own expense any
action brought against Contractor to the extent that it is based on a
claim that Service furnished by Contractor pursuant to this Agreement
infringe any patent, trademark, copyright, trade secret or other
proprietary right.
11. ADVERTISING
No identification of Contractor, references to Contractor or third parties or
references to Contractor's name, marks, codes, drawings or specifications will
be used in any of Customer's advertising or promotional efforts in reference to
providing Services hereunder without Contractor's prior written permission.
Customer shall indemnify Contractor and any third parties against any claim
arising out of Customer's failure to do so.
12. TIME OF PERFORMANCE
Contractor shall use its best effort in performing the services in accordance
with the schedule described in the scope of service.
13. FORCE MAJEURE
If the performance of any obligation under this Agreement is interfered with by
reason of any circumstances beyond the reasonable control of the party affected,
including, without limitation, fire explosion, power failure, acts of God, war,
revolution, civil commotion, delays of the other party in the performance of any
of its obligations hereunder, delays of subcontractor or suppliers,
unavailability of sources of energy, acts of the public enemy,
4
5
or any law, order, regulation, ordinance or requirement of any government or
legal body, and labor difficulties, including without limitation, strikes,
slowdown ?????????? boycotts; then the party affected shall be excused from such
performance for period equal to the delay resulting from any such causes and
such additional period as may be reasonably necessary to allow the party to
resume its obligations, (and the other party shall likewise be excused from
performance of its obligations to the extent such party's obligations relate to
the performance so interfered with). The party so affected shall make reasonable
efforts to remove such causes of nonperformance; provided, however, in the
context of labor difficulties, that a party shall not be obligated to accede any
demands being made by employees or other personnel. Notwithstanding the
foregoing, if any such event occurs, either party may terminate this Agreement
immediately unless the party suffering the event provides adequate assurance to
the other that it will be able to resume performance of substantially all of its
business activities within seven days of the event.
14. GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of Indiana as to both substance and procedure. Venue
shall lie in Indianapolis, Indiana, regarding the resolution of any disputes
arising hereunder. Any controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in the City of Indianapolis, Indiana,
in accordance with the then-governing rules of the American Arbitration
Association. Judgment upon the award rendered may be entered and enforced in any
court of competent jurisdiction.
15. SEVERAL LIABILITY
The term Customer as used herein may be applicable to one or more parties and
the singular shall include the plural. If there shall be more than one party
referred to as Customer herein, then their original obligations and liabilities
shall be several, not joint.
16. NONWAIVER
Except as specifically provided for in a waiver signed by duly authorized
representatives of Customer and Contractor, failure by either party at any time
to require performance by the other party or to claim a breach of any provision
of this Agreement shall not be construed as affecting any subsequent breach or
the right to require performance with respect thereto or to claim a breach with
respect thereto.
17. REMEDIES CUMULATIVE
The remedies provided herein shall be cumulative and in addition to any other
remedies provided by law or equity.
5
6
18. AMENDMENTS
No change or modifications of any terms or conditions herein shall be valid or
binding on either party unless made in writing and signed by an authorized
representative of each party.
19. NOTICES
Where written notices, demands, or other communications are required under this
Agreement to be made in writing, they shall be deemed duly given when made in
writing and delivered in hand, or upon receipt when properly addressed
return-receipt-requested and delivered by the United States Postal Service or
other delivery service to the following addresses:
CONTRACTOR:
Telocity
00000 X. Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx
00000-0000
CUSTOMER:
Telamon Corporation
0000 Xxxx 000xx Xxxxxx
Xxxxxx, XX
00000
Addresses may be changed by written notice to the parties.
6
7
20. ENTIRE AGREEMENT
This Agreement, together with all referenced attachments shall constitute the
entire Agreement between the parties with respect to the subject matter of this
Agreement. This Agreement supersedes all prior oral and written communications,
agreements and understandings of the parties with respect to the subject of this
Agreement.
If any of the provisions of this Agreement shall be adjudged invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render this Agreement unenforceable, but rather this Agreement shall be
construed and enforced accordingly, provided that, in the event either party
would not have entered into this Agreement without such provision, that party
shall have the right to terminate this Agreement.
The parties intending to be legally bound have caused this Agreement to be
executed by their duly authorized representatives on the dates set forth below.
TELAMON IMS CORPORATION
/s/ XXXXX X. XXXXXX /s/ XXXXX XXXXXXX
--------------------------------- ---------------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx X. Xxxxxx Xxxxx Xxxxxx
--------------------------------- ---------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
Customer Care Officer V.P. Marketing & Sales
--------------------------------- ---------------------------------
(Title) (Title)
10/28/99 11/1/99
--------------------------------- ---------------------------------
(Execution Date) (Execution Date)
7
8
SERVICE SCHEDULE NO. ONE
PRE-SALES/SALES ADMINISTRATION
o Answer all inbound telephone and email inquiries
o Provide product, service, and customer care information to prospective
and signed Telocity customers
o Track all calls in a Telamon database call log
o Generate of a customer record through the Telocity web site
o Qualify the prospective customer's phone line for DSL service using a
Telocity database
o Sell Telocity products and services
o Complete all customer data fields to include but not limited to the
customer's computer equipment, other telephony based systems such as
security monitors, and the network interface device (NID)
o Triage customer to either a) modem only sale, or b) modem sale plus
installation of equipment
o Process customer's charge using the generally accepted charge cards
(conducted onsite at Telamon between November 1st and January 1, 2000
and thereafter through the Telocity web site).
o Schedule shipment of the Telocity product
o Schedule installation (if required)
o Submit line activation order
o Track submission of line activation order request
o Update database with line activation due date or rejection information
(rejection criteria established by Telocity)
o If line activation is rejected, contact customer and inform. Cancel
installation if scheduled. Process charge card credit. Cancel shipment
of modem.
o Process product warranty claims
FEES
ITEM FEE
------------------------------- -------------------------------
Sales & General Information [*]
Support Services
Dispatch
Credit Card Processing
Installation Database
Installation Database
Modifications/Technical
Assistance
Telephony Charges
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
8
9
NOTES:
1. [*]
2. Installer help desk functions associated with Telocity's residential
installations have been built into the "Telamon Installation Proposal".
3. Hours of operation: 7:00 am - 7:00 pm Monday thru Friday. Saturday 9:00
am 5:00 pm. The times designated will correspond to the Atlanta,
Georgia time zone.
4. Telocity will provide Telamon with projected call volumes on the 30th
of each month; these volumes will be for two months in advance. When
such a report is received, Telamon will have 30 days to recruit, hire,
and train new staff for the Telocity project.
SYSTEMS INTERFACE - TELAMON TO TELOCITY
A. The interface mechanism and processes are to be determined.
B. Telamon proposes to download customer data in batch every two hours
during normal business hours.
C. Telamon proposes to upload shipping data at most twice per day from
Telamon to the Telocity OSS system.
D. Communication costs incurred by Telamon will be reimbursed by Telocity
to Telamon upon approval by Telocity.
1. ACCOUNT MANAGEMENT
Telamon has assigned an Account Manager, Xxx Xxxxxxx, to act as the
Single Point of Contact (SPOC) between Telocity and Telamon.
Liz will:
A. Assist Telocity staff in developing customer service processes and
procedures;
B. Understand the objectives of the business model and work to ensure
that Telamon's resources are properly assigned to meet
expectations;
C. Communicate/meet with Telocity staff when planning new promotions
or modifications to the web site;
D. Monitor work activity and generate and provide reports to Telocity
and Telamon personnel;
E. Generate any invoicing as defined by the agreement; and
F. Field inquiries and complaints from Telocity. The AM will be
responsible for providing a response to complaints within two
business days of the complaint.
REPORTING
Telamon will provide standard reports on business activity from this
agreement to help Telocity to monitor certain business results.
A. Submitted on a scheduled time interval as mutually agreed upon by
Telocity and Telamon.
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
9
10
Installation
o Services, fees and schedules have been provided under separate cover
"Wiring Installation Process and Requirements for Xxxx South ADSL
Deployment" dated 9/15/99.
Excerpts from Telamon's installation proposal are included in the following
paragraphs.
Installer Reporting
Telamon proposes to provide real time results reporting to support this project.
The installer will input required information at the customer's location that
will update the database essentially immediately. Telamon's program is password
protected to insure the integrity of the information being reported. The format
for this information can be tailored to the needs of Telocity. Alternatively,
should Telocity require direct input to its database, this is certainly
feasible. Telamon would only request that Telocity provide Telamon customer
information on a daily basis. Such information is critical to the installers,
our dispatch team and our installer help desk in assuring optimal service for
the customer and minimizing redundancy of activity in the event of a failed
install, repair or service call.
Recommended Installation Schedule
Telamon typically schedules installations at 8 am, 11 am, 1 p.m. and 3 p.m.
daily, with a two-hour window to accomplish the installation. The installer
arrives at the customer's location as an example, between 7 a.m. and 9 a.m. for
the 8 a.m. installation, having obtained customer permission to arrive ahead of
schedule.
Telamon's normal hours of operation for the installation team are 7 a.m. to 5
p.m. Scheduled installations, which occur after 5 p.m. and on Saturdays will be
subject to an additional installation charge (to be negotiated).
Telamon maintains the following insurance limits, and will maintain them for the
entire term of the contract:
1. Commercial General Liability Insurance in an amount not less
than two million dollars ($2,000,000) per occurrence for
bodily injury or property damage;
2. Employer's Liability Insurance in an amount not less than one
million dollars ($1,000,000) per occurrence;
3. Workers' Compensation Insurance in an amount not less than
that prescribed by statutory limits;
4. Commercial Automobile Liability Insurance applicable to bodily
injury and property damage, covering owned, non-owned, leased
and hired vehicles, in an amount not less than one million
dollars ($1,000,000) per accident;
5. Umbrella or Excess Liability Insurance with a combined single
limit of no less than one million dollars ($1,000,000) per
occurrence to apply over
10
11
Commercial General Liability, Employer's Liability, Workers'
Compensation, and Commercial Automobile Liability Insurance.
11
12
Installer Help Desk
Telamon has an ADSL help desk capable of providing support for the installers.
Our technicians are experienced in dealing with a range of issues including the
following:
o ADSL help desk technicians are skilled in working with local exchange
carriers to troubleshoot and resolve local loop issues, and can serve
as the single point of contact between the carrier, the installers and
end users. This allows the carrier to be certain that standardized
troubleshooting procedures are being followed prior to their
involvement and also insures that changes in troubleshooting procedures
will be implemented immediately and pervasively.
o Telamon maintains an extensive technical knowledge base on the company
intranet that provides help desk technicians with quick access to
on-line reference material. The knowledge base is updated regularly to
insure that the technicians are using the most current information in
their troubleshooting procedures.
Additional
The final step of the installation is completion of the Customer Satisfaction
survey. In Telamon's system, the installer will open the survey on the
customer's computer enter his name, city, phone number and e-mail address. The
installer will then request the customer take a few minutes to voluntarily
complete the survey and forward to Telamon electronically. The web page will be
set up to forward a record to Telamon even in the event a customer chooses not
to fill out the survey. This assures Telamon that the installer is following the
procedures outlined in the installation manual as well as providing feedback on
the installer's performance.
INSTALLATION PRICING
CATEGORY TERMS PRICING($) SPECIAL CONSIDERATIONS
----------------------------------------------------------------------------------------------------
Successful ADSL Not Not Applicable
(splitterless install) Applicable
ADSL and home alarm 30 days net [*] This is a more labor intensive
systems installation. The installer
helpdesk labor is included in
this price. Telephony access
charges are separate pass through
costs.
----------------------------------------------------------------------------------------------------
ADSL splitterless install 30 days net [*] The installer helpdesk labor is
with trouble ticket included in this price. Telephony
access charges are separate pass
through costs.
----------------------------------------------------------------------------------------------------
[*] The Registrant has requested confidential treatment for certain portions of
this exhibit. The omitted portions have been separately filed with the
Commission.
12
13
----------------------------------------------------------------------------------------------------
Repair 30 days net $95 Under these circumstances Telamon
anticipates the customer will be up
and running for a period of time and
then has problems that could not be
resolved by the Telocity's technical
helpdesk.
----------------------------------------------------------------------------------------------------
NOTE:
o Any equipment costs incurred by Telamon (such as splitters), which
would be required to successfully complete an installation for and on
behalf of Telocity, will be considered a reimbursable expense and
passed through to Telocity with appropriate documentation.
o The following Installation Deployment Plan is based on Telocity's
projected capacity to ramp up:
INSTALLATION DEPLOYMENT PLAN
CITY INSTALL DATE CITY INSTALL DATE
---- ----------- ---- ------------
Atlanta 11/12/99 Augusta 11/29/99
Miami 11/12/99 Chattanooga 11/29/99
West Palm Beach 11/12/99
Ft. Lauderdale 11/12/99 Xxxxxxxxxx 12/6/99
Boca Raton 11/12/99 Columbia 12/6/99
Orlando 11/12/99 Louisville 12/6/99
Baton Rouge 11/12/99 Greensboro 12/6/99
New Orleans 11/12/99
Charlotte 11/12/99 Greenville 12/13/99
Daytona Beach 11/12/99 Huntsville 12/13/99
Knoxville 11/12/99 Charleston 12/13/99
Memphis 11/12/99
Nashville 11/12/99
Athens 11/22/99
Jacksonville 11/22/99
Birmingham 11/22/99
Gainesville 11/22/99
Pensacola 11/22/99
Raleigh 11/22/99
Lafayette 11/22/99
Xxxxxxx 11/22/99
o The Install Date is defined as: the date Telamon is prepared to install
ADSL in the above cities.
o The attached "Sales vs. Installers" spreadsheet is for reference. This
is Telocity's projected installation capacity.
13
