EXHIBIT 10.1
DISTRIBUTION AND MARKETING AGREEMENT
US WEST Interprise America, Inc., a Colorado Corporation ("USW") with offices
located at 0000 Xxxxxxxxxx Xxxxxx #0000, Xxxxxx, Xx 00000 and Vsource, Inc.
("Vsource") with offices located at 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
("Party" or "Parties"), hereby execute this Distribution and Marketing Agreement
("Agreement") and agree as follows:
1. SCOPE: Vsource will provide the services and any resulting
deliverables (the "Services") according to the specifications ("Specifications")
which are described herein or attached hereto. USW's Affiliates and Assigns may
acquire Services under the terms and conditions of this Agreement.
2. DEFINITIONS: The terms defined in this Agreement shall have the
meanings set forth below whenever they appear in the Agreement, unless the
context in which they are used clearly requires a different meaning or a
different definition is described for a particular provision:
2.1 "AFFILIATES" means any entity, which directly or indirectly
controls, or is controlled by, or is under common control with, USW.
"Control" means (i) for corporate entities, direct or indirect ownership of
fifty percent (50%) or more of the stock or shares entitled to vote for the
election of the board of directors or other governing body of the entity;
and (ii) for non-corporate entities, direct or indirect ownership of fifty
percent (50%) or greater of the equity interest.
2.2 "CUSTOMER(S)" means USW's Customers, either potential or existing.
2.3 "SUPPORT MATERIALS" means all, applications, methods and other
documents (in any medium) customized by or for USW that Vsource's personnel
use in conjunction with the performance of Services under the Agreement.
Vsource shall not use Support Materials in conjunction with the performance
of Services hereunder unless USW first approves such Support Materials in
writing.
2.4 "DECISION MAKER(S)" means those persons that are eighteen (18)
years of age or older and authorized to purchase products and/or Services
for Customers.
2.5 "SALES ORDER(S)" means the information describing all Work
Products and/or Services that Customers have purchased during each contact
with Vsource.
2.6 "SERVICE SCHEDULE" an attachment to the Agreement specifying
details of projects to be performed under the terms of the Agreement.
3. [Redacted.]
4. WARRANTY: Services shall be performed in a professional manner,
consistent with industry standards and the requirements of this Agreement. USW
may inspect Services at any time with reasonable notice to Vsource.
5. CONFIDENTIAL INFORMATION AND PROPERTY: Confidential Information and
Property ("Confidential Information") shall mean any and all business, technical
or third-Party information (including but not limited to marketing plans,
financial data, specifications, drawings sketches, models, samples, computer
programs, logos, or documentation) marked as confidential or proprietary and
provided, disclosed or made available under this Agreement. The Parties shall
restrict access to the Confidential Information to employees or agents who have
a "need to know". The Parties', employees or agents, shall not disclose the
Confidential Information to any third Party and shall treat the Confidential
Information in the same way it treats its own Confidential Information of like
kind. This provision will not apply to information which is in the public
domain, is previously known to the receiving Party without obligation of
confidentiality, is independently developed by the receiving Party or is
obtained by the receiving Party from a third party that does not have an
obligation to keep the information confidential. The Parties will not make any
copies of the Confidential Information, except to facilitate the purpose for
which the information is provided.
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CONFIDENTIAL & PROPRIETARY. DISCLOSE & DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
6. OWNERSHIP; INTELLECTUAL PROPERTY: Intellectual Property includes
inventions, discoveries, improvements, concepts, methods, processes, ideas,
information, software, and other intellectual property which is originated,
developed or prepared in connection with Service(s) under this Agreement. Unless
otherwise expressly provided in applicable Service Schedule(s) or other
attachments, "Intellectual Property" which is originated, developed or prepared:
(1) by employees, agents or independent contractors of one Party shall belong to
that Party; and/or (2) jointly by employees of both Parties shall belong jointly
to both, and each Party hereby grants the other an unrestricted, non-exclusive,
royalty-free, perpetual, irrevocable license to copy, use, disclose and
sublicense such jointly developed Intellectual Property in connection with its
business. At the request and expense of USW, Vsource will assist USW and sign
all appropriate documents, during and after the term of this Agreement, to
enable USW to obtain intellectual property protection for Intellectual Property.
USW will, at the request and expense of Vsource, provide the same assistance to
Vsource with respect to Intellectual Property. The assisting Party will not
charge any fees or other charges of any kind in connection with such activities.
7. PRIVACY: Vsource shall treat all Customer information gathered as a
result of this Agreement as Confidential Information, in accordance with the
provisions of Section 5 (confidential Information and Property) of this
Agreement.
8. INDEPENDENT CONTRACTOR: Each of the Parties certifies that it is engaged
in an independent business and will perform its obligations under this Agreement
as an independent contractor and not as the agent or employee of the other; that
it has no authority to act for or bind the other; that such Party may and does
work for other customers; that any persons provided by such Party shall be
solely the employees or agents of that Party under its sole and exclusive
direction and control. Each Party hereto is solely responsible for the hours of
work, methods of performance and payment of its employees and agents. Each Party
hereto is solely responsible for providing worker's compensation, unemployment,
disability insurance and social security withholding for its employees and
agents, and shall comply with all other federal, state and local, rules and
regulations. Each Party is responsible for and shall pay all assessable federal
and state income tax on amounts paid to it under this Agreement.
9. INDEMNIFICATION: Vsource warrants and represents that the Services shall
not infringe any third party patent, copyright, trademark, trade secret or other
proprietary rights. Vsource shall indemnify, hold harmless and defend, USW, its
officers, directors, Affiliates, agents and employees from any and all claims,
demands, litigation, expenses and liabilities (including costs and attorneys'
fees) ("Liabilities") arising from or incident to breach of this warranty.
Vsource shall indemnify and hold harmless USW, its parents, Affiliates,
subsidiaries, owners, agents, directors and employees from and against all
Liabilities arising from personal injury or property damage caused by Vsource,
its agents and employees and others under its direction or control. USW shall
indemnify and hold harmless Vsource, its owners, parents, affiliates,
subsidiaries, agents, directors and employees from and against all Liabilities
arising from personal injury or property damage caused by USW, its agents and
employees and others under its direction or control.
10. LIMITATION OF LIABILITY: Neither Party is liable to the other for
consequential, incidental, indirect, punitive or special damages, including
commercial loss and lost profits, however caused and regardless of legal theory
or foreseeability, directly or indirectly arising under this Agreement.
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CONFIDENTIAL & PROPRIETARY. DISCLOSE & DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
11. INSURANCE: Vsource and any subcontractors shall maintain insurance as
follows: (a) Commercial General Liability covering claims for bodily injury,
death, personal injury or property damage with minimum limits of $1,000,000.00
each occurrence with a General Aggregate limit of $2,000,000.00; (b)
Comprehensive Automobile Liability covering ownership, operation and maintenance
of all owned, non-owned and hired automobiles used in connection with the
performance of this Agreement, with minimum limits of $1,000,000.00 each
occurrence; (c) Worker's Compensation with statutory limits as required in the
state where the Services are being provided. USW shall be given thirty (30) days
advance written notification of any cancellation or material change of the
policy. Vsource shall forward certificate(s) of insurance to USW prior to
commencement of Services and upon renewal of insurance during the term of this
Agreement.
12. SAFETY, HEALTH AND ACCIDENT REPORTS: The safety and health of the
employees and agents of a Party brought on premises the premises of the other
Party shall be the sole responsibility of the Party employing such employees or
agents. While the employees and agents of a Party are on the premises of the
other Party, the employing Party shall comply with all local, state and federal
environmental, health and safety requirements, including those relating to the
use and handling of hazardous materials. The employing Party shall report all
accidents, injury-inducing occurrences or property damage arising from the
performance of Services. The other Party may request copies of any reports filed
with the employing Party's insurer or others. The employing Party's employees
and agents shall comply with all plant rules and regulations while on the other
Party's premises.
13. COMPLIANCE WITH LAWS: Vsource shall, at its expense, obtain all permits
and licenses, pay all fees, and comply with all federal, state and local laws,
ordinances, rules, regulations and orders applicable to Vsource's performance
under this Agreement.
14. PERFORMANCE STANDARDS: Vsource agrees that the Services performed under
this Agreement shall be free from defects in performance or material, shall
conform to the requirements and specifications of the Agreement and attachments
hereto, and shall be fit and sufficient for the purposes expressed in, or
reasonably to be inferred from the Agreement and attachments hereto. Vsource
agrees to perform the Services with care, skill and diligence in accordance with
the applicable professional and industry standards currently recognized by
Vsource's profession and industry and shall be responsible for the quality,
technical accuracy, completeness and coordination of all reports, information,
specifications and other items and Services furnished under this Agreement.
Vsource shall comply with all applicable governmental laws, ordinances, codes
and regulations in performing the Services.
If Vsource fails to meet applicable performance standards set out in this
Agreement and attachments and Service Schedules, Vsource shall, at not cost to
USW or Vsource's customer, correct or revise any error or deficiencies in the
Services.
15. YEAR 2000 COMPLIANCE: Vsource represents and warrants that the Services
provided under this Agreement are Year 2000 Compliant and will lose no
functionality on or after January 1, 2000 or with respect to the introduction of
records containing dates falling on or after January 1, 2000. "Year 2000
Compliant" means that the Services will function or be usable properly in
accordance with the requirements of this Agreement and will record, store,
process, calculate and present calendar dates falling on and after January 1,
2000, and will calculate any information dependent on or relating to such dates
in the same manner and functionality as on or before December 31, 1999. Vsource
shall modify or replace any Services that are not Year 2000 Compliant. If
Vsource is unable to or fails to modify or replace Services, USW shall have the
right to make such modification or replacement and charge Vsource for any costs
incurred.
16. [Redacted.]
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CONFIDENTIAL & PROPRIETARY. DISCLOSE & DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
17. DISPUTE RESOLUTION: If any claim, controversy or dispute between
the Parties, their agents, employees, officers, directors, or affiliates
("Dispute") cannot be settled through negotiation or mediation, it shall be
resolved by arbitration conducted by a single arbitrator engaged in the practice
of law, under the then current rules of the American Arbitration Association
("AAA"). The Federal Arbitration Act, 9 U.S.C. Sec. 1-16 shall govern the
arbitrability of all Disputes. The arbitrator shall not have authority to award
punitive damages. All expedited procedures prescribed by the AAA rules shall
apply. The arbitrator's decision and award shall be final and binding and
judgment may be entered in any court having jurisdiction thereof. Each Party
shall bear its own costs and attorneys' fees, and shall share equally in the
fees and expenses of the arbitrator. Notwithstanding the foregoing, either Party
may seek injunctive relief in an appropriate court of law until such time an
arbitrator is assigned. The laws of the State of California shall apply, and
any arbitration shall occur in San Francisco, California.
18. FORCE MAJEURE: Neither Party is liable to the other Party for any
delay, error, failure in performance or interruption of performance resulting
from causes beyond their control. The injured Party may elect to terminate this
Agreement and/or any Service Schedule upon written notice.
19. REMEDIES: Subject to the Article on Dispute Resolution contained in
this Agreement and as limited by Section 10 "Limitation of Liability" herein,
the remedies stated in this Agreement are cumulative and are in addition to any
other rights available in law or in equity.
20. RECORDS AND AUDITS: Vsource shall maintain complete and accurate
records as appropriate in accordance with generally accepted accounting
principles, for a period of twenty-four (24) months from the date of
termination, cancellation or expiration of this Agreement. USW may inspect and
keep copies of Vsource's records related to this Agreement upon reasonable
notice.
21. ASSIGNMENT AND DELEGATION: Neither Party shall not assign this
Agreement, in whole or in part, without the prior written consent of the other,
which shall not be unreasonably withheld; and any attempted assignment without
such consent shall be void. Either Party may assign this Agreement through its
merger or as part of the sale of substantially all of its assets to the
counterparty of any such merger or acquisition.
22. [Redacted.]
23. NOTICES: Any notices required under this Agreement shall be sent to the
addresses of the Parties stated in the first paragraph of this Agreement. Notice
will be deemed given (1) as of the day they are deposited with an overnight
courier, charges prepaid, return receipt requested, with a confirming telefax;
or (2) as of the day of receipt if they are deposited in certified U.S. Mail,
charges prepaid, return receipt requested; or (3) as of the day of receipt if
they are hand delivered. Copies of any such notices shall be sent to:
U S WEST, Inc. Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP
Law Department 000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
0000 Xxxxxxxxxx Xxxxxx #0000 Xxxxx Xxxx, XX 00000
Xxxxxx, XX 00000 Fax: 000-000-0000
Fax: 000-000-0000 Attn.: Xxxx X. Xxxxxxxxxx, Esq
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24. ADVERTISING, PUBLICITY: Neither Party shall use the other Party's
names, marks, codes, drawings or Specifications in any advertising, promotional
efforts or publicity of any kind without the expressed prior written permission
of the other Party.
25. WAIVERS: No waiver of any provision of this Agreement or any right
or obligation of a Party shall be effective unless in writing, signed by the
Parties. The failure of either Party to enforce a right shall not constitute a
waiver.
26. MODIFICATIONS OR AMENDMENTS: Modifications and amendments to this
Agreement shall be in writing and signed by the Parties.
27. NONEXCLUSIVE AGREEMENT: This Agreement is nonexclusive and USW does not
make any commitment or guarantee for any minimum or maximum amount of business
that it will engage in with Vsource.
28. SEVERABILITY: Any term of this Agreement which is held to be invalid,
illegal, unenforceable or void will in no way affect any other provision.
29. SEVERAL LIABILITY: If more than one party is referred to as USW, then
their obligations and liabilities shall be several, not joint.
30. ENTIRE AGREEMENT: This Agreement and any Service Schedule constitutes
the entire Agreement between the Parties for the Services to be provided. Any
prior oral or written communications or agreement of the Parties with respect to
the Services not expressly set forth in this Agreement or any attachment or
Service Schedule or the like, are of no force or effect.
The Parties, intending to be legally bound, have caused this Agreement to be
executed by their authorized representatives on the dates set forth below.
U S WEST INTERPRISE AMERICA, INC. VSOURCE, INC.
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SERVICE SCHEDULE #1 ("SS#1")
TO DISTRIBUTION AND MARKETING AGREEMENT
This SS#1 is issued pursuant to the terms and conditions of that certain
Marketing and Distribution Agreement ("Agreement"), effective April 15, 1999
("Agreement"), by and between U S WEST Interprise America, Inc. with offices
located at 0000 Xxxxxxxxxx Xxxxxx #0000, Xxxxxx, XX 00000 ("USW") and Vsource,
Inc. ("Vsource") with offices located at 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx, XX
00000.
[Redacted.]
7. GENERAL:
This SS#1 and the Agreement shall be read so as to complement each other.
However, in the event of an irreconcilable conflict in the terms thereof,
the provisions of the Agreement shall have precedence over the terms of
this SS#1.
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CONFIDENTIAL & PROPRIETARY. DISCLOSE & DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
The Parties intending to be legally bound have caused this SS#1 to Agreement to
be executed by their duly authorized representatives.
U S WEST INTERPRISE AMERICA, INC. VSOURCE, INC.
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CONFIDENTIAL & PROPRIETARY. DISCLOSE & DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
