TURNKEY AGREEMENT
This Turnkey Agreement ("Agreement"), dated September 14, 1998 is made by
and between THE NETWORK CONNECTION, INC., a Georgia corporation with a place of
business at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("TNC"), and
CARNIVAL CORPORATION, a Panamanian corporation with a place of business at 0000
X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 ("Carnival").
WHEREAS, Carnival is in the business of offering cruise vacations to its
passengers;
WHEREAS, TNC has developed a computer hardware and software system, known
collectively as "Cruiseview," for the delivery of interactive television
services on board cruise ships; and
WHEREAS, TNC desires to provide to Carnival Cruise Lines (a division of
Carnival), and Carnival Cruise Lines desires to obtain from TNC, the
aforementioned interactive television system for use aboard the M/S Triumph (the
"Initial Ship") and such other cruise vessels owned or operated from time to
time by Carnival Cruise Lines, as from time to time may be designated by
Carnival Cruise Lines (all such cruise vessels, collectively, the "Ships" and
individually, a "Ship").
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged the parties hereto, intending to. be legally bound hereby, agree as
follows:
1. DEFINITIONS.
(a) "Acceptance Date" shall mean, with respect to each Ship, the date on
which Carnival notifies TNC in writing that the System has met all of
the acceptance criteria set forth in Exhibit "E" attached hereto,
provided that Carnival shall provide such notification, or shall
notify TNC that such criteria have not been met, no later than the
last day of the applicable Acceptance Period.
(b) "Critical Design Review" or "CDR" means a review process undertaken by
TNC and Carnival to ascertain whether TNC's design of the System meets
Carnival's requirements, to resolve questions and to give direction as
required. CDR shall take place at a date set forth in the Milestone
Schedule attached hereto and incorporated herein as Schedule "D" (the
"Milestone Schedule").
(c) "Equipment" means hardware and related documentation sold by TNC to
Carnival in accordance with the terms and conditions of this
Agreement.
(d) "Licensed Software" means computer programs or firmware (embedded
software) proprietary to TNCi or its suppliers and licensed to
Carnival in accordance with this Agreement, including all manuals and
documentation related thereto.
(e) "Ship Survey" or "SS" means a review process undertaken by TNC and
Carnival prior to Critical Design Review to determine TNC's design of
the System to meet Carnival's requirements, as determined by Carnival
in Its sole discretion. The written System design document resulting
from SS and agreed to in writing by the parties shall be attached
hereto and incorporated herein as Exhibit I to Schedule "C." SS shall
take place at the date set forth in the Milestone Schedule.
(f) "Product(s)" means Equipment and Licensed Software sold and/or
licensed to Carnival and set forth in Schedule "A" attached hereto and
incorporated herein by this reference.
(g) "Services" means installation, testing and warranty period services as
well as post-warranty period maintenance services, if any, provided by
TNC hereunder.
(h) "Specifications" means the written system design document resulting
from CDR and agreed to in writing by the parties hereto. Upon such
mutual written agreement, the Specifications shall be attached hereto
and incorporated herein as Exhibit 2 to Schedule "C."
(i) "System" means the total integrated "Cruiseview" interactive
television system, including all Equipment, Licensed Software,
Services and any other item necessary to certify and operate the
Products in accordance with the Specifications.
(j) "Installation Date" shall mean, with respect to each Ship, the date on
which TNC shall have notified Carnival in writing that installation of
the System on the applicable Ship has been completed and the System
has been successfully tested by TNC.
2. RESPONSIBILITIES.
(a) Subject to the terms and conditions hereof, TNC shall:
(i) Provide, within four (4) years from the date first written
above, for each Ship designated by Carnival (including without
limitation the Initial Ship), and install on each such Ship at
its home port, at the total price per cab-in not to exceed that
set forth in Schedule "A," for a minimum of eight hundred (800)
cabins per Ship, the System, consisting of the Equipment and
Licensed Software described or listed on Schedule "A." The
installation of the System on the Ships, and the delivery of
documentation related thereto, will be in accordance with the
Milestone Schedule. TNC agrees to provide to Carnival written
progress reports regarding the status of the installation of the
System.
(ii) Provide, at no cost or expense to Carnival, all personnel
reasonably necessary and appropriate install the System on board
each Ship. TNC understands and acknowledges that, while on board
any Ship, its personnel will be subject to the authority of the
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Masterof that Ship and the officer(s) designated to oversee the
operation of the System, and all such personnel will at all
times while on board any Ship comply with the operations manual
of Carnival, in the form then in effect.
(iii) Train up to ten (10) personnel of one class per Ship of Carnival
at no additional charge, at Carnival headquarters in Miami,
Florida, in the operation and maintenance of the System.
Additional training can be provided at $___ per day. Additional
training shall be provided at a cost to Carnival of $___ per day
for up to 10 Carnival personnel per class plus expenses for
travel, lodging and subsistence at actual cost. Should training
be provided at TNC's location in Alpharetta, Georgia, Carnival
shall be responsible for travel, lodging and subsistence of
Carnival personnel to be trained.
(iv) Throughout the Warranty Period (as hereafter defined), at its
sole cost and expense, maintain the System in proper working
order and otherwise in accordance with the Specifications, as
more specifically set forth in Section 9 of this Agreement.
(v) Pay to Carnival, with respect to each System (or other
interactive television system similar to the System) or
component thereof and each application or module relating to the
System (or other interactive television system similar to the
System), regardless of whether any such application or module is
developed by or an behalf of TNC, Carnival or any third party,
which TNC provides to any party other than Carnival Cruise Lines
Ships for cruise vessel use, royalties in an amount equal to:
(A) __percent ( __%) of all payments received by TNC with
respect to the sale, rental, lease or other transfer of the
system, or of any application, module or other product relating
thereto (including, without limitation, the sales price of any
equipment and license fees in connection with any software), and
(B) ____ __percent (__ %) of all payments received by TNC (net
of direct costs) in excess of the transfer price defined in (A)
with respect to any revenue sharing or similar arrangement
entered into between TNC and such party relating to the system,
or any application, module or other product or service relating
thereto. All royalties due under the preceding sentence shall be
remitted by TNC to Carnival within thirty (30) days after TNC's
receipt of the applicable revenues, and shall be accompanied by
a written statement indicating, in reasonable detail, the source
of all such revenues and the calculation of Carnival's
proportionate share. In addition, in the event that TNC collects
any rental payments for which a royalty payment is due under
this paragraph, TNC shall provide to Carnival, within thirty
(30) days after each calendar quarter in which such rental
payments are received, a written report setting forth, with
respect to each applicable cruise vessel on which a System,
component, application or module is installed, the amount of
rent received by TNC during such quarter attributable to the
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vessel's operations in U.S. waters and the amount attributable
to the vessel's operations outside of U.S. waters. TNC shall
ensure that, with respect to any System, component, application
and module sold by TNC and for which a royalty payment will be
due under this paragraph, transfer of title shall occur outside
of the United States, and that each applicable purchase, rental
or other applicable agreement between TNC and a third party
recipient thereof shall provide that transfer of title will
occur outside of the United States. Carnival or its appointed
representative shall have the right, during regular business
hours and upon reasonable advance notice, to audit TNC's books
and records to verify the accuracy and completeness of the
payments made under this paragraph. As used in this paragraph,
the term "TNC" shall include any affiliates, subsidiaries,
parent companies, successors, assignees and transferees of TNC.
(vi) At no expense to Carnival, obtain a performance bond or standby
letter of credit in favor of Carnival, with a company and on
terms acceptable to Carnival, to secure its obligation to refund
the two initial installment payments required to be made by
Carnival pursuant to Schedule "A" upon the terms set forth
herein.
(b) Subject to the terms and conditions hereof, Carnival shall:
(i) Pay, with respect to the Initial Ship and any additional Ships
designated by Carnival, the applicable amount set forth in
Schedule "A", pursuant to the applicable payment schedule set
forth therein. In the event Carnival fails to make any such
payment when due, and such failure to pay continues for more
than thirty (30) days after Carnival's receipt of written notice
specifying such failure, Carnival shall be subject to a late
payment charge of 1% per month until paid, and TNC may decline
to make further Product or Service deliveries except upon
receipt of cash or satisfactory security. Carnival is
responsible for all sales, use and similar taxes arising from
the sale of products or services to Carnival hereunder, and
Carnival agrees to reimburse TNC for any such charges paid on
Carnival's behalf.
(ii) Make available to TNC, on any Ship upon which the System is
installed or is then to be installed, (A) reasonable access for
such TNC personnel as will be installing, testing, maintaining
or servicing the System, or otherwise providing Services
pursuant to this Agreement, and (B) appropriate accommodations
on-board such Ship, if necessary, for up to seven (7) TNC
personnel who are engaged in installing, testing, maintaining or
servicing the System on such Ship; provided, however, that none
of the foregoing activities of TNC shall unreasonably interfere
with the normal functions of such Ship or require displacement
of revenue guests, and that Carnival shall not be required to
provide such accommodations for any period in excess of the
number of days as defined in the Milestone Schedule, It is
understood that TNC personnel occupying such accommodations
shall, at all times while on-board such Ship, be subject to
Carnival's policies regarding on-board contractors, including
those concerning dress, decorum and personal behavior.
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(iii) Provide reasonable access to each Ship on which the System is
then installed, when such Ship is in port, for TNC personnel to
demonstrate the System to a reasonable number of prospective
customers, provided that Carnival is given at least seven (7)
days' prior notice of and approves the number of persons to
board and the date and time of each such demonstration. In
connection with making such demonstrations, TNC shall conform to
Carnival's procedures for approving on-board visitors, including
but not limited to making advance requests for boarding passes.
TNC shall be solely responsible and liable for any damage or
injury to persons or property arising out of or in connection
with any such demonstration.
3. TERM/EXTENSION TO OTHER SHIPS.
(a) Except as otherwise specifically provided herein with respect to
individual provisions of this Agreement, the respective rights and
obligations of the parties hereunder shall survive indefinitely.
(b) Carnival shall have the right, at any time during the four (4) year
period commencing on the date first written above, to designate Ships,
whether then existing or under construction, for System installation,
in addition to the Initial Ship, at the price per cabin set forth in
Schedule "A," provided that in the event of any decrease in TNC's
direct costs with respect to the System between the date of this
Agreement and the date that any such designation is made, TNC shall
pass along any such cost reductions in the price payable by Carnival,
on a dollar-for-dollar basis. TNC and Carnival shall establish a
mutually acceptable timetable for the installation of the System on
any such additional Ships, generally consistent with the schedule for
installation on the Initial Ship, as set forth in the Milestone
Schedule.
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4. ACCEPTANCE PERIOD.
Notwithstanding anything to the contrary contained in this Agreement, in
the event that the System fails to fully perform in accordance with the
Specifications and the System design document attached hereto, and to fully
meet the acceptance criteria set forth in Schedule "E" attached hereto, in
each case as determined by Carnival in its sole discretion, from the date
that TNC shall have notified Carnival in writing that installation of the
System on the applicable Ship has been completed and the System has been
successfully tested by TNC, Carnival shall have the right, exercisable upon
written notice to TNC at any time within the applicable period of time set
forth below (the "Acceptance Period"), to either (a) extend the Acceptance
Period for a term selected by Carnival, in which case TNC shall use its
best efforts to cause the System to fully meet the acceptance criteria
within such additional period, or (b) terminate this Agreement effective
immediately respect to such Ship, in which case TNC shall promptly, at its
sole cost and expense, and without causing damage to applicable Ship,
remove the System from such Ship, and refund any and all sums paid by
Carnival to TNC hereunder with respect to such Ship. In the event that
Carnival shall elect to extend the Acceptance Period pursuant to the
previous sentence, and TNC shall thereafter be unable to cause the System
to fully meet the acceptance criteria (as determined by Carnival in its
sole discretion) within such additional period, Carnival shall have the
same right to terminate this Agreement as described in subsection (b) of
the previous sentence. The Acceptance Period with respect to the Initial
shall be one (1) year, and with respect to any and all additional Ships
shall be ninety (90) days.
5. SHIPMENT, TITLE AND SECURITY INTEREST.
TNC shall effect delivery and installation of the System and/or Services on
each Ship within the time mutually agreed upon by TNC and Carnival (with
respect to the Initial Ship, as set forth in the Milestone Schedule), at
TNC's sole cost and expense. Title to and risk of loss and damage to the
Products sold shall pass to Carnival immediately upon the Acceptance Date
with respect to each such Product on board the applicable Ship. Carnival
hereby grants TNC a security interest in the Products sold hereunder and in
the proceeds therefrom, in accordance with the law applicable to the
Products, such security interest to continue until Carnival has made full
payment therefor. Carnival agrees that it will execute any UCC Statements
or other similar documents evidencing TNC's security interest in the
Products, upon request of TNC, at TNC's sole cost and expense. TNC agrees
that it shall file appropriate UCC termination statements or similar
documents, as applicable, evidencing the release of each such security
interest promptly upon payment in full by Carnival.
6. SOFTWARE.
(a) TNC hereby grants to Carnival a non-exclusive, perpetual, worldwide,
royalty-free license to use the Licensed Software (software and/or
firmware, as the case may be), including all documentation related
thereto, in connection with the System. Title to such Licensed
Software (but excluding the software described in subsection (b)
below) shall remain with TNC or its suppliers, as the case may be,
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notwithstanding anything to the contrary contained herein. TNC
represents and warrants that it has the authority to grant such a
license with respect to all of the Licensed Software. TNC further
represents and warrants that the System as delivered and installed by
TNC shall be fully operational and that no software other than the
Licensed Software shall be necessary to operate the System in
accordance with the Specifications.
(b) TNC acknowledges that, notwithstanding anything to the contrary
contained in this Agreement, all right, title and interest in and to
all software which interfaces or links the System and Carnival's
property management system (collectively, the "Interface Software") as
defined in Exhibit "I", shall be owned by Carnival. All Interface
Software produced by or on behalf of TNC shall be deemed "works made
for hire" within the meaning of the U.S. Copyright Act and any other
applicable laws relating to intellectual property, and TNC understands
and acknowledges that Carnival shall own all right, title and interest
in and to the Interface Software, including without limitation
copyright, patent and trademark rights. To the extent that any such
software shall not be deemed "works made for hire," TNC hereby assigns
all right, title and interest in and to such software, including
without limitation copyright, patent and trademark rights, to
Carnival, TNC shall execute and deliver to Carnival any additional
documents that may be reasonably required to evidence or perfect such
assignments. TNC shall not make any use of any Interface Software
other than as part of the System delivered to Carnival without the
prior written consent of Carnival.
(c) TNC acknowledges that Carnival may provide program content for the
System itself, or may procure such content from third parties, and TNC
represents and warrants that the use by Carnival of content or
software provided by Carnival or third parties in connection with the
System (including, without limitation, any Licensed Software) shall
not give rise to any claim of copyright infringement, or any similar
claim relating to intellectual property, by TNC or any licensor of TNC
based solely upon the use of content or software in combination with
the System.
7. CANCELLATION AND RESCHEDULING.
At any time prior to the scheduled date of installation, Carnival may
cancel the Products on order upon payment to TNC of all direct costs
incurred by TNC (time and materials, including non-recurring engineering
costs) (the "Cancellation Fee") as a result of TNC performing its
obligations hereunder.
TNC will allow Carnival to delay any scheduled installation dates for a
maximum of 60 days upon written notice of the new installation date
received by TNC at least 45 days in advance of the scheduled date of
installation. Any rescheduling to a date more than 60 days after the
original scheduled date of installation or received by TNC less than 45
days in advance of the scheduled date of installation, will be subject to a
reschedule charge of 5% of the price of the applicable Products purchased.
After the first rescheduling, Carnival will be subject to a reschedule
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charge of 5% of the price of the Products purchased for each subsequent
rescheduling (none of which may exceed 60 days) regardless of the length of
the rescheduling or period of notice. Failure by Carnival to schedule
installation to occur within 12 months after the initial agreed upon date
will be considered as a cancellation subject to the Cancellation Fee,
calculated as identified above. Any rescheduling to a date later than
identified on the Milestone Schedule shall effect all subsequent milestones
therein by a corresponding number of days.
8. TERMINATION.
(a) Either party may terminate this Agreement upon written notice to the
other party in the event of a material breach of this Agreement by
such other party, which breach shall have remained uncured for thirty
(30) or more days after receipt of written notice thereof.
(b) Without limiting any other right or remedy contained herein, Carnival
may terminate this Agreement with no further obligation to TNC, on
fifteen (15) days' written notice to TNC in the event the parties do
not successfully complete SS or CDF, or cannot agree on the
Specifications, within 30 days of their scheduled dates of completion,
as set forth in the Milestone Schedule. In addition, Carnival may
terminate this Agreement with no further obligation to TNC upon notice
to TNC at any time after the occurrence of any of the following
events:
(i) TNC shall have filed or initiated proceedings, or shall have had
proceedings filed or initiated against it, seeking liquidation,
reorganization or similar relief (including without limitation
the appointment of a trustee, receiver, custodian or other such
person) under any bankruptcy, insolvency or similar law;
(ii) TNC shall have purported to assign this Agreement (or any part
hereof) without having first obtained Carnival's prior written
consent, or
(iii) TNC shall not have had the power, right or authority to grant
any license contained in this Agreement with respect to any
Licensed Software, or any such power, right or authority shall
have been revoked or otherwise lost.
9. WARRANTY.
Except as set forth to the contrary in Schedule "B" attached hereto and
incorporated herein, TNC warrants to Carnival that:
(a) for a period commencing upon the Acceptance Date and continuing for
______(__) months thereafter (the "Warranty Period"), all Products
sold or licensed to Carnival hereunder shall be free from defects in
materials and workmanship and that the System shall perform in all
material respects in accordance with the Specifications;
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(b) the advent of the year 2000 shall not adversely affect the performance
of the System, or any component thereof. Without limiting the
generality of the foregoing, (1) all equipment, hardware, firmware,
middleware, custom or commercial software and other systems, including
all components thereof (collectively, "Materials"), which are
furnished pursuant to this Agreement shall accurately process date
data (including, but not limited to, calculating, comparing and
sequencing) from, into, and between the twentieth and twenty-first
centuries, and the years 1999 and 2000, including leap year
calculations, and (ii) no date data will cause any interruption or
other error in the operation of any such Materials. To the extent that
any Materials perform as a package or system, the foregoing warranty
shall apply to the Materials as a system, and to each Material
individually; and
(c) neither the delivery of the System to the Ships nor Carnival's use of
the System on the Ships will violate any export laws of the United
States.
TNC's obligation to perform pursuant to the warranties provided in
this Section 9 is limited to undertaking all reasonable efforts to
identify and correct any defects or other breaches (in accordance with
the terms and conditions set forth in Schedule "B") which prevent the
continued use of the Products in accordance with the Specifications
(including repairing or replacing Products, as appropriate) or, if TNC
is unable to so correct any such defects or otherwise remedy any
breach within a commercially reasonable period (but in no event to
exceed thirty (30) days) during the Warranty Period, to refund all
sums paid by Carnival to TNC hereunder with respect to the affected
Ship(s).
Upon the expiration of the Warranty Period, Carnival shall have the
option to extend the Warranty Period for up to four (4) additional
one-year terms (each an "Extended Warranty Period"). The cost for each
Extended Warranty Period shall be equal to an amount not to exceed
____ percent (__ %) of the cost to Carnival of the applicable Products
to be warranted during the Extended Warranty Period.
The foregoing warranties and commitments are for the benefit of and
apply only to Carnival. The warranties provided herein do not extend
and are not transferable to any subsequent end-users of the Products,
other than any subsidiary, affiliate or assignee of Carnival. Not
included under this warranty are Services or replacement Equipment
which are required due to (a) abuse, misuse, or abnormal conditions of
operation; (b) damage to the Equipment which is a result of the use of
unapproved, non-TNC mounting devices; (c) any damage to Carnival's
equipment or Equipment as a result of Carnival connecting components
which have not been purchased from TNC and/or inspected and approved
by TNC or TNC approved personnel for connection to the Equipment, (d)
unauthorized attempts by other than TNC personnel or TNC authorized
representatives to install, repair, maintain or modify the Equipment
or System; or (e) causes external to TNC-maintained Equipment, such as
power surges or force majeure events, as described in Section 22
hereof.
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10. GENERAL INDEMNIFICATION.
(a) TNC shall indemnify, defend and hold harmless Carnival and its
successors and assigns from and against any and all liabilities,
claims, suits, damages, judgments, awards, penalties, losses and other
liabilities (including all related reasonable attorneys' fees, costs
and expenses in connection therewith, whether at the trial or
appellate level) (collectively referred to hereinafter as "Losses")
suffered or incurred by Carnival by reason of, arising out of or in
connection with (i) any negligent, willful or intentional act or
omission of TNC (or an employee, agent or representative of TNC
committed or omitted, as the case may be, in the course of or in
connection with TNC's performance of the terms of this Agreement, or
(ii) any breach of this Agreement by TNC.
(b) Carnival shall indemnify, defend and hold harmless TNC and its
successors and assigns from and against any and all Losses suffered or
incurred by TNC by reason of, arising out of or in connection with (i)
any negligent, willful or intentional act or omission of Carnival (or
an employee, agent or representative of Carnival) committed or
omitted, as the case may be, in the course of or in connection `kith
Carnival's performance of the terms of this Agreement, or (ii) any
breach of this Agreement by Carnival.
11. INTELLECTUAL PROPERTY INDEMNIFICATION.
TNC shall defend, at its expense, and shall Indemnify Carnival against, any
claim, suit or other action brought against Carnival alleging that any
Product or other component of the System furnished hereunder infringes a
trademark, patent or copyright, or incorporates or is based upon any third
party's trade secret, and TNC shall pay all costs, expenses and damages
based on any such claim, suit or other action awarded or payable by
Carnival, if any, provided that Carnival gives TNC prompt written notice of
any such claim and gives TNC, at TNC's sole cost and expense, information,
reasonable assistance, and sole authority to defend or settle the claim. In
the defense or settlement of the claim, TNC may obtain for Carnival the
right to continue using the Products, replace or modify the Products so
that they become non-infringing or, if such remedies are not reasonably
available, grant Carnival a credit for the price paid to TNC with respect
to the applicable Products and accept their return (at TNC's sole expense),
provided, however, that any such remedy will permit the System to fully and
properly continue to operate as otherwise set forth in this Agreement. TNC
shall not have any liability if the alleged infringement is based solely
upon (i) the use or sale of the Products in combination with other products
or devices not furnished by TNC, or (ii) any unauthorized modification of
the Products by Carnival. This Section 11 sets forth TNC's sole obligation
and Carnival's sole remedy with regard to trademark, patent, copyright
and/or trade secret infringement claims.
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12. INSURANCE/WAIVER OF SUBROGATION.
TNC shall obtain and maintain, throughout the term of this Agreement, at
its own cost and expense:
(a) Worker's Compensation/Employer's Liability insurance covering its
employees. Said insurance shall include a Xxxxxxxxx and Harbor
Worker's Compensation Act Coverage Endorsement and a Maritime Coverage
Endorsement with no territorial limits. The coverage shall include
liability (if any) for (i) maintenance and cure as well as personal
injury or death claims asserted by TNC's employees or their estates,
and (ii) repatriation, loss of personal effects and other costs to
employees (including, without limitation, burial costs) in the event
of death, casualty or termination of a voyage.
(b) Comprehensive General Liability insurance, including product liability
coverage, covering claims of passengers or other third parties arising
out of or in connection with TNC's operations or the actions of TNC's
employees and/or its subcontractors. Said coverage shall be in an
amount of at least $__________.
(c) Automobile Liability insurance for bodily injury and property damage
in the amount of at least $__________.
All such insurance shall be in form, in amounts, with carriers and on terms
reasonably satisfactory to Carnival and shall name Carnival as an
additional insured party, and include a waiver of subrogation. Within
thirty (30) days of the execution of this Agreement and no less than
annually thereafter, TNC shall provide Carnival with a Certificate or
Certificates of Insurance evidencing such coverage.
13. LIMITATION OF LIABILITY.
TNC ASSUMES NO LIABILITY EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
AND IN NO EVENT SHALL TNC BE LIABLE WHETHER IN CONTRACT OR TORT FOR DAMAGES
RELATING TO LOSS OF MAGNETICALLY STORED COMPUTER PROGRAMS OR DATA. EXCEPT
FOR DAMAGES ARISING UNDER SECTION 11 HEREOF OR AS MAY BE AWARDED IN
CONNECTION WITH ANY CLAIM BROUGHT BY A THIRD PARTY AND SUBJECT TO A PARTY'S
INDEMNITY OBLIGATIONS AS SET FORTH UNDER SECTION 10 HIEREOF, NEITHER PARTY
SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES.
14. MATTERS RELATING TO TNC EMPLOYEES.
(a) TNC'S OBLIGATIONS. TNC's status under this Agreement is solely that of
an independent contractor, and TNC at all times has the obligation and
right to control all of the employees or other personnel engaged by
TNC to perform its obligations hereunder, and such persons are solely
the responsibility of TNC. As between any such person and TNC, TNC
hereby acknowledges that it is solely responsible for the payment of
all wages, vacation pay, benefits and repatriation expenses.
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(b) RESPONSIBILITY FOR PAYMENT OF CERTAIN EXPENSES. TNC shall be solely
responsible for the payment of any medical and subsistence expenses or
damages to TNC's employees and other personnel arising from accident
or illness, and TNC shall promptly reimburse Carnival for any such
expenses or damages incurred by Carnival.
(c) NO MARITIME LIENS. Except as specifically provided in Section 5
hereof, neither TNC nor any of its employees or other personnel shall
have maritime liens on a Ship for any payments due to them in
connection with this Agreement.
(d) XXXXX ACT. TNC's employees and other personnel are not entitled to
assert claims against
Carnival under the Xxxxx Xxx, 00 X.X.X. 000.
(e) EMPLOYEE CONTRACTS. TNC will cause each of its employees and other
personnel who will serve or work on any Ship to sign a written
contract or other document, containing the following notice:
"Your employer is a concessionaire of Carnival Corporation, the owner
and/or operator of the Ship. You are subject to the control of your
employer. You are also subject to the authority of the Master for purposes
of health, safety and discipline. In your dealings with passengers you will
refer to yourself as a member of the interactive television system team, `
However, your employer is solely responsible for you, and neither the Ship
nor Carnival Corporation, is obligated to you for any payments. You are
required to comply with the terms of any agreement and/or policy now
existing, or hereafter entered into or adopted by Carnival Corporation,
with respect to the carrying on board the Ship and/or use on board the Ship
of any narcotics or other controlled substances that Carnival Corporation
may deem necessary or desirable in view of the laws, regulations and
policies of any governmental jurisdiction including, without limitation,
the zero tolerance policy of the government of the United States of
America."
(f) SHIP'S ARTICLES.
(i) TNC irrevocably appoints the Master of a Ship as its agent with
the power of overall supervision of TNC's employees and other
personnel on board the Ship for purposes of health, safety, and
discipline. The Master may delegate this supervisory power to
the Ship's Staff, Captain and/or Xxxxxx.
(ii) Only for purposes of health, safety and discipline and to
facilitate compliance with the immigration laws applicable in a
Ship's base port and other ports of call, TNC's employees and
other personnel will sign on ship's articles- but such adherence
to ship's articles will not in any way detract from or modify
the TNC's status as an independent contractor, and its
relationship or its right and obligation to control its
employees and other personnel, as described in Sections 14(a)
through 14(d), above. Carnival agrees to make all arrangements
for TNC's employees and other personnel to sign on and off
ship's articles.
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(g) HEALTH AND DOCUMENTATION.
(i) TNC will employ on-board the Ship only persons who, to the best
of TNC's knowledge, are of good moral character as well as good
health, and who hold valid passports, visas, and all other
permits required by any governmental authority having
jurisdiction, in order that they may enter and leave the base
port and other ports where the Ship may call.
(ii) TNC will at its own expense arrange for each of its employees
and other personnel to receive and pass a complete medical
examination including a chest x-ray and blood test, immediately
prior to serving on-board a Ship and periodically thereafter,
provided that the foregoing shall apply only to any person who
will be on board, for more than two (2) weeks during any
calendar year, any Ship which has entered service. The report of
such examination shall be forwarded to the Ship's doctor
indicating that the employee or other personnel is medically fit
for service on-board the Ship in accordance with standards
established by Carnival and applicable to its own crew.
(h) GROOMING. TNC's employees and other personnel will at all times keep
themselves neatly groomed, well spoken, and suitably attired in TNC
uniforms.
(i) REMOVAL. In his/her discretion, the Master of a Ship may require, when
he/she determines it necessary in his/her sole discretion to preserve
health, safety or discipline on board the Ship, that any employee or
other personnel of TNC remove himself/herself and his/her belongings
from a Ship at any time when the Ship is in port, and all repatriation
expenses, if any, will be for TNC's account. TNC shall be entitled to
appeal such removal by referring the matter to Carnival for final
determination, which determination shall be made in good faith.
(j) PROHIBITED ITEM. TNC's employees and other personnel are not
permitted:
(i) To carry or consume aboard a Ship any firearms or weapons,
narcotics, or other drugs which are prohibited in the Ship's
ports, except pursuant to a program of medical care under the
direct supervision of the Ship's doctor;
(ii) To consume alcoholic beverages aboard a Ship to the point of
intoxication or to the point where, during the subsequent
performance of their duties, such consumption could become
apparent to the passengers;
(iii) To board a Ship in an intoxicated state without the consent of
the Master;
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(iv) To engage in gambling aboard a Ship in the Ship's casino or
amongst themselves, or engage in any illegal activity;
(v) To sell any merchandise to passengers, or to purchase
merchandise from the interactive system for resale.
15. TNC'S OTHER GENERAL OBLIGATIONS.
(a) SAFE STOWAGE. Subject to the approval of the Master of the Ship, which
approval shall not be unreasonably withheld or delayed, TNC will
safely stow for sea and will maintain such safe stowage for sea all of
the System components and its other property, as well as all property
belonging to Carnival which TNC uses to perform its obligations
hereunder.
(b) UNSEAWORTHINESS. TNC will not knowingly or recklessly create an
unseaworthy condition in the performance of its obligations hereunder.
(c) CAREFUL OPERATIONS. TNC will care for the property of a Ship utilized
by TNC in performance of its obligations hereunder in a careful,
efficient and businesslike manner.
(d) COMPLIANCE WITH LAWS. TNC will comply with all laws and regulations of
all governmental authorities having jurisdiction relating to its
obligations or operations hereunder. Without limiting the generality
of the foregoing, TNC represents and warrants that delivery of the
System to the Ships will not violate any law, statute or regulation of
the United States of America, including without limitation any
applicable export laws or regulations. Carnival shall provide, at
TNC's sole cost and expense, reasonable assistance to TNC in acquiring
all necessary regulatory or other approvals for engaging in the sale,
delivery, connection and use of the Products and related power supply
transformers. All such approvals will, to the extent permitted by law,
be obtained in the name of and on behalf of TNC or a designated
representative of TNC.
(e) DAMAGED PROPERTY. Each party will, at its own expense, repair or
replace the other party's property which is damaged by the negligent
acts of such other party's employees, over and above normal wear and
tear.
16. CRUISE SCHEDULING.
Sailing and other cruise periods shall be scheduled at the sole discretion
of Carnival.
17. ESCROW AGREEMENT.
At the request of Carnival, on or prior to the Acceptance Date, TNC shall
enter into an escrow agreement, in substantially the form attached hereto
as Schedule "F", providing for TNC's escrow of the source code for the
Licensed Software (except for "off the shelf' third party software for
which TNC licenses from such third party with no rights to source code upon
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terms mutually agreeable to TNC and Carnival (including, without
limitation, the release of the source code to Carnival if TNC becomes
insolvent or if TNC fails to provide services under Section 9 herein) and
with Carnival as escrow agent, or with such other escrow agent as is
mutually acceptable TNC and Carnival. If a party other than Carnival acts
as the escrow agent, the fees and any other expenses payable to the escrow
agent shall be split equally by TNC and Carnival.
18. CONFIDENTIALITY.
(a) Each party agrees, during the term of this Agreement and thereafter,
to maintain the confidential nature of the terms and conditions of
this Agreement and of any proprietary information (collectively,
"Information") shared with it by the other party or obtained by a
party from the other party's books, records or computer systems, or by
reason of a party's access to the other party's business premises.
Each party shall retain all right, title, and interest in and to all
of its respective Information, including but not limited to any
intellectual property rights embodied or contained therein. Each party
shall (i) keep -in strictest confidence and trust all of the other
party's Information and not use or disclose any such Information
without the express prior written consent of such other party, except
as reasonably necessary for the installation, operation and/or
maintenance of the Products and/or the System, or to allow a party to
perform its obligations or enforce its rights under this Agreement,
and (ii) use its best reasonable efforts (but in no event less effort
than such party uses to protect its own confidential information) to
diligently protect all such Information against loss by inadvertent or
unauthorized disclosure or use.
(b) Notwithstanding anything to the contrary contained in subsection (a)
above, neither party shall have any obligation or liability with
respect to any Information of the other party, to the extent that such
Information (i) is or becomes publicly available other than as a
result of any act by such party in violation of subsection (a) of this
Section 18, (ii) is known to such party prior to disclosure by such
other party, or prior to such party's having access to such
Information pursuant to this Agreement, (iii) is or becomes available
to such party from a source that, to such party's knowledge, is not
bound by an obligation of confidentiality to such other party
prohibiting such disclosure, or (iv) is, on the advice of counsel,
required to be disclosed by law or legal process.
(c) Neither party shall, without the prior written consent of the other
party, publicly disclose any terms of this Agreement, or the fact that
this Agreement exists.
19. RIGHT TO MAKE AGREEMENT.
Each of the parties hereto represents and warrants to the other that it has
all necessary and appropriate power and authority to execute, deliver and
carry out the terms and provisions hereof and that its execution, delivery
and performance thereof will not constitute a default by it under any other
agreement to which it is a party.
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20. AGREEMENT APPROVAL.
Each party hereby represents and warrants that all necessary approvals for
this Agreement have been obtained, and the person whose signature appears
below has the authority necessary to execute and deliver this Agreement on
behalf of the party indicated.
21. NOTICES.
Any notices or other communication required by or relating to this
Agreement shall be writing, and shall be sufficient if given as follows:
(i) if delivered by hand or sent by facsimile, on the date of receipt, as
confirmed by the courier or by automatic facsimile confirmation; (ii) if
sent by reputable overnight delivery service, on the day following the day
of sending; (iii) if sent by certified or registered mail, return receipt
requested, in each case to the address set forth below, subject to any
address change provided by notice given in such manner.
If to TNC: If to Carnival:
The Network Connection, Inc. Carnival Cruise Lines
000 X. 00xx Xx. 0000 X.X. 00xx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx, Xxxxxxx 00000-0000
Attn: Contracts and Legal Affairs Attn:_____________________
Facsimile: (000) 000-0000 Facsimile:________________
with a copy to the attention of the
General Counsel, at the same address,
facsimile no _______________________
22. FORCE MAJEURE.
Neither party to this Agreement shall be liable for its failure to perform
or for delay in performing any of its obligations hereunder to the extent
that such performance is delayed or prevented by fire, flood, wind,
earthquake, war, embargo, strikes, explosions, riots or other such
catastrophic events, or by laws, rules or regulations of any governmental
authority, and all time periods for performance under this Agreement shall
be extended for an amount of time equal to the duration of such force
majeure event.
23. ASSIGNMENT.
This Agreement or any part hereof shall not be assigned or otherwise
transferred by any party without the prior written consent of the other
party which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, however, Carnival may assign or other-wise transfer its rights
and obligations under this Agreement to any entity with which Carnival
merges or to which it sells all or substantially all of its assets, or to
any entity that purchases or charters a Ship.
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24. MODIFICATIONS.
Except as expressly set forth herein to the contrary, no modification of
any of the terms and conditions of this Agreement shall be effective unless
such modification is expressed in writing and executed by each of the
parties hereto.
25. RELATIONSHIP OF PARTIES.
The parties are acting herein as independent contracting parties. Nothing
herein shall create or be construed as creating a partnership, joint
venture or agency relationship between the parties, and no party shall have
the authority to bind the other in any respect.
26. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
THE PARTIES AGREE THAT ANY LEGAL PROCEEDING ARISING UNDER THIS AGREEMENT
SHALL TAKE PLACE IN THE STATE OR FEDERAL COURTS LOCATED IN MIAMI-DADE
COUNTY, FLORIDA, AND EACH PARTY EXPRESSLY CONSENTS TO JURISDICTION IN SUCH
COURTS AND TO SERVICE OF PROCESS WITH RESPECT THERETO, AND WAIVES ANY
OBJECTIONS TO ANY PROCEEDING IN ANY SUCH COURT THAT IT MIGHT OTHERWISE HAVE
BASED ON IMSDICTION, VENUE, OR THE ADEQUACY OF EXTR-A-TERRITORIAL SERVICE
OF PROCESS.
27. SEVERABILITY.
The provisions of this Agreement are to be construed separately, and if any
one or more of the provisions hereof are not given legal effect by a court
of competent jurisdiction, such provision(s) shall be deemed deleted from
the Agreement and the Agreement shall be construed and enforced to most
closely reflect the intent of the parties hereto.
28. WAIVER.
Either party's failure to exercise any of its rights under this Agreement
shall not constitute a waiver of any past, present or future right or
remedy.
29. RETENTION OF RIGHTS.
Except as specifically provided herein, Carnival shall not obtain, by this
Agreement, any right, title or interest in or to the patent rights,
trademarks, service marks, and copyrights or any and all other intellectual
property rights embodied in the Products and sub-assemblies thereof
manufactured by, or on behalf of, TNC, nor shall this Agreement give
Carnival the right to use, refer to, or incorporate in any way or form such
intellectual -property rights.
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30. CAPTIONS.
The captions used in this Agreement are for convenience only and shall not
affect in any way the meaning or interpretation of the provisions set forth
herein.
31. SURVIVAL.
Sections 2(a)(v), 6, 9, 10, 11, 13, 14, 17, 18 and 21 through 32 of this
Agreement shall survive the expiration or termination, for any reason, of
this Agreement.
32. ENTIRE AGREEMENT.
This Agreement shall constitute the final, complete and exclusive written
expression of the intentions of the parties hereto and shall supersede all
previous communications, representations, agreements, promises or
statements, either oral or written, by either party. No other terms and
conditions, including without limitation any terms and conditions stated on
Carnival's purchase order or any document(s) accompanying such purchase
order, or TNC's invoice or packing slip or similar document(s), shall be
applicable, except upon the mutual written agreement of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed by the par-ties
hereto as of the date first above written.
THE NETWORK CONNECTION, INC. CARNIVAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Corgen
---------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxx
-------------------------------- ---------------------------------
Title: Title:
------------------------------- --------------------------------
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