EXHIBIT C
FRAMEWORK AGREEMENT
between
National Bank of Alaska (NBA)
and
General Communication, Inc. (GCI)(1)
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(1) In this document "********" are used in place of redacted information.
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TABLE OF CONTENTS
SECTION PAGE
1. DEFINITIONS..................................................................................................5
2. STATUS.......................................................................................................6
3. STANDARDS....................................................................................................6
4. COMMENCEMENT, DURATION AND TERMINATION OF THIS AGREEMENT.....................................................7
5. SCOPE AND OBJECTIVES.........................................................................................8
6. STRATEGIC DIRECTION, TECHNICAL ARCHITECTURE AND SELECTION OF PRODUCTS.......................................9
7. ESTABLISHMENT OF A TELECOMMUNICATIONS REVIEW BOARD...........................................................9
8. SCOPE CHANGES...............................................................................................11
9. USE OF SERVICES.............................................................................................15
10. APPROVALS AND LICENSES......................................................................................15
11. WARRANTY AND BENCHMARKING...................................................................................16
12. ACQUISITION OF NEW TECHNOLOGY AND PROCESSES.................................................................16
13. ASSET AND LEASE TRANSFERS...................................................................................17
14. REMUNERATION................................................................................................18
15. TARGETS.....................................................................................................18
16. COSTS DEFINITIONS...........................................................................................19
17. MARGIN......................................................................................................21
18. RISK/REWARD INCENTIVES......................................................................................21
19. INVOICING AND SETTLEMENT....................................................................................23
20. TAX.........................................................................................................24
21. FINANCIAL AUDIT.............................................................................................26
22. SUB-CONTRACTORS.............................................................................................27
23. ASSIGNMENTS AND SUB-LETTING.................................................................................28
24. EMPLOYMENT OF FORMER NBA EMPLOYEES..........................................................................28
25. EMPLOYEE RELATIONS AND TRAINING.............................................................................28
26. CONTRACTOR'S PERSONNEL......................................................................................29
27. FATAL ACCIDENT, INJURY AND DAMAGE TO PROPERTY...............................................................29
28. INSURANCE...................................................................................................30
29. LIMITATION OF LIABILITY.....................................................................................30
30. INDEMNIFICATION.............................................................................................31
31. INDEPENDENT CONTRACTOR......................................................................................32
32. INTELLECTUAL PROPERTY RIGHTS................................................................................32
33. MINIMUM CONDITIONS OF SATISFACTION..........................................................................34
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34. SECURITY....................................................................................................34
35. ACCESS......................................................................................................36
36. CONFIDENTIALITY.............................................................................................36
37. DATA PROTECTION.............................................................................................38
38. SECURITY AUDIT..............................................................................................38
39. COMMENCEMENT, DURATION AND TERMINATION OF CALL-OFF CONTRACTS...............................................39
40. REMEDIES....................................................................................................43
41. AUTHORITIES AND GUARANTEES..................................................................................44
42. FORCE MAJEURE...............................................................................................45
43. HEALTH AND SAFETY...........................................................................................45
44. PUBLICITY...................................................................................................45
45. NOTICES.....................................................................................................46
46. VARIATIONS..................................................................................................46
47. COMPLIANCE WITH LAWS, REGULATIONS AND ETHICS................................................................46
48. PROFESSIONAL FEES...........................................................................................47
49. SEVERABILITY................................................................................................47
50. APPLICABLE LAW AND JURISDICTION.............................................................................47
ANNEX A: GLOSSARY OF DEFINITIONS.......................................................................49
ANNEX B: SPECIMENS.....................................................................................54
ANNEX C: MINIMUM CONDITIONS OF SATISFACTION............................................................59
1. GENERAL....................................................................................60
2. BASIC SERVICE ELEMENTS.....................................................................61
3. QUALITY....................................................................................63
4. FLEXIBILITY FOR CHANGE.....................................................................64
5. PROCUREMENT................................................................................64
6. HUMAN RELATIONS AND PERSONNEL..............................................................64
7. COSTS......................................................................................65
ANNEX D: MODEL CALL-OFF CONTRACT AND SCHEDULES.........................................................67
1. DEFINITIONS................................................................................69
2. STATUS.....................................................................................69
3. PROVISION OF SERVICES......................................................................70
4. DURATION...................................................................................70
5. INVOICES AND PAYMENT.......................................................................70
6. MANAGEMENT ORGANIZATION....................................................................71
7. NO WAIVER..................................................................................71
8. SERVICE OF NOTICE..........................................................................71
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9. FURTHER ASSURANCES.........................................................................72
10. GOVERNING LAW..............................................................................72
11. INVALIDITY.................................................................................72
12. ADDITIONAL TERMS AND CONDITIONS............................................................72
13. CONDITION PRECEDENT........................................................................72
SCHEDULE 1: SCOPE OF WORK............................................................74
SCHEDULE 2: SERVICE LEVELS...........................................................75
SCHEDULE 3: CHARGES AND BILLING INFORMATION..........................................76
SCHEDULE 4: NBA AND CONTRACTOR PREMISES..............................................77
SCHEDULE 5: INFORMATION RECORDS......................................................78
SCHEDULE 6: CONFIDENTIALITY LETTER...................................................79
SCHEDULE 7: ADDITIONAL TERMS AND CONDITIONS..........................................80
SCHEDULE 8: NBA OBLIGATIONS..........................................................81
SCHEDULE 9: LONG TERM CONTRACTS......................................................83
ANNEX E: MODEL TRANSFER AGREEMENT......................................................................83
1. INTERPRETATION.............................................................................85
2. CONDITION PRECEDENT........................................................................86
3. AGREEMENT FOR SALE AND TRANSFER............................................................86
4. TRANSFER CONSIDERATION.....................................................................87
5. COMPLETION.................................................................................87
6. CONTINUING CONTRACTS.......................................................................88
7. WARRANTIES.................................................................................89
8. NOTICES....................................................................................89
9. MISCELLANEOUS..............................................................................90
10. GOVERNING LAW..............................................................................90
SCHEDULE 1: THE TRANSFER EQUIPMENT...................................................91
SCHEDULE 2: THE TRANSFERRED SOFTWARE.................................................92
SCHEDULE 3: CONTINUING CONTRACTS.....................................................93
ANNEX F: GCI AND M&I SHARED RESPONSIBILITIES...........................................................94
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THIS AGREEMENT is made the 31st day of October 1995.
BETWEEN
National Bank of Alaska whose registered offices are located at 301 West
Northern Lights Blvd., Anchorage, Alaska 99503 (hereafter, "NBA") and General
Communication, Inc. (GCI) whose registered offices are located at 2550 Denali
St., Suite 1000, Anchorage, Alaska 99503 (hereafter, "The Contractor")
WHEREAS
A. NBA has determined that its interests might be best served
commercially by the outsourcing of certain of its non-core
Information Services (IS) activities, including
telecommunications services.
B. In pursuit of the objectives stated in A above, NBA has
carried out extensive market research to assess objectively
the capabilities of certain contractor companies. NBA now
wishes to enter into individual agreements with several
companies for the outsourcing of certain of the IS activities
currently maintained within NBA.
C. The Contractor and M&I Data Services, a division of the
Marshall & Ilsley Corporation whose registered offices are
located at 4900 W. Brown Deer Rd., Brown Deer, Wisconsin
(hereafter, "M&I") have separately proposed to assume
responsibility for certain of NBA's IS activities, including
telecommunications services.
D. The Contractor is prepared to provide the telecommunications
services required by NBA in accordance with the terms of this
Agreement.
E. It is the intention of both NBA and the Contractor to agree to
and record a detailed general basis of agreement in the terms
set out below for incorporation into subsequent agreements
between NBA and the Contractor as may be varied or altered as
allowed pursuant to the terms of this Agreement.
IT IS THEREFORE AGREED as follows:
1. DEFINITIONS
1.1. A glossary of definitions relating to this Agreement and
attachments is appended hereto as Annex A.
1.2. "Party" shall mean either NBA or the Contractor.
1.3. "Parties" shall mean both NBA and the Contractor.
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2. STATUS
2.1. This Agreement shall operate as a framework agreement entered
into between the Parties and shall specify the general terms,
conditions and criteria that will apply in the event that NBA
and the Contractor agree that the Contractor shall supply
Services to NBA. Any subsequent agreement between NBA and the
Contractor for the provision of Services shall be on the basis
of the Model Call-Off Contract attached hereto in the form of
Annex D together with, where appropriate, a transfer agreement
in the form of the Model Transfer Agreement attached hereto as
Annex E (together with a Call-Off Contract and as appropriate
referred to as "Call-Off Contract") incorporating the terms of
this Agreement subject to such change, addition, alteration,
amendment and revision as might then be agreed between the
Parties to a Call-Off Contract.
2.2. Pending and notwithstanding the execution of any Call-Off
Contract, this Agreement and its associated rights and
obligations takes effect upon signing by both Parties. In
particular and for the avoidance of doubt, this Agreement
shall cover a term of seventy-two (72) months plus an interim
period extending from the date of signing of this Agreement
through the commencement of the first Call-Off Contract. This
Agreement is subject to the provisions of Sub-section 39.3.4
after 1996. The terms of this Agreement shall have effect as
between the Parties to the extent that any of its terms are
also incorporated in a Call-Off Contract and then only in the
context of a Call-Off Contract.
2.3. At any given time during the term of this agreement, there
shall only be one Call-Off Contract incorporating the
telecommunications services to be delivered to all of NBA's
sites in effect.
3. STANDARDS
3.1. It is intended by the Parties that the provision of the
Services by the Contractor under a Call-off Contract to the
levels specified in the Scope of Work and the Service Level
Agreement requires superior performance and be to a standard
which shall be interpreted and maintained in accordance with
the following principles:
3.1.1. The Minimum Conditions of Satisfaction as set out in
Annex C.
3.1.2. The application of high levels of professionalism,
expertise and experience as are from time to time
available within the telecommunications industry both
within and outside of Alaska.
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3.1.3. Continuous improvement, innovation and development
with regard to the quality and cost-effectiveness of
the Services commensurate with the objective of
delivering materially superior telecommunications
services to NBA.
3.1.4. The delivery of "best-in-class" Services as defined
in Annex C, Sub-section 3.3. Services will also be
delivered consistent with Most Favored Nations
pricing as outlined in Annex C, Sub-section 7.3.
3.1.5. The exercise of sound technical judgment on the part
of the Contractor and the acquisition and exchange of
technical information and best working practices
among the Parties and other contractors engaged in
the provision of the Services.
3.1.6. The maintenance of exemplary employee relations.
3.2. In recognition of the commitment on the part of the Contractor
as expressed in Sub-section 3.1 above and, subject to the
requirement that the Contractor can demonstrate to NBA's
satisfaction that NBA is receiving good value for money, NBA
for its part recognizes the need for the Contractor to
maintain a reasonable rate of return.
3.3. In the event that the Incentive processes referred to in
Section 18 do not result in a reasonable rate of return as set
out in Sub-section 3.2 above the relevant Parties to a
Call-Off Contract shall meet to discuss changes to such
Call-Off Contract and implement such changes as may be
mutually agreed to achieve the objectives of this Sub-section
3.3.
4. COMMENCEMENT, DURATION AND TERMINATION OF THIS AGREEMENT
4.1. As from the date hereof this Agreement shall remain current
between the Parties both prior to and subsequent to the entry
by the Contractor into any Call-Off Contract. During this time
the Contractor shall continue to be represented by, or be
entitled to appoint, Representatives to the Telecommunications
Review Board.
4.2. This Agreement shall cover a term of seventy-two (72) months
plus an interim period extending from the date of signing of
this Agreement through the commencement of the first Call-Off
Contract. This Agreement is subject to the provisions of
Sub-section 39.3.4 after 1996.
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5. SCOPE AND OBJECTIVES
5.1. The scope of the Services shall be as specified in a Call-Off
Contract subject to the conditions set out in this Section 5.
5.2. The full and complete achievement of the intent of this
Agreement and the performance of the Services will be
facilitated by the formation of a Telecommunications Review
Board, as specified in this Agreement and in a Call-Off
Contract, which shall ensure that all decisions and actions of
the Parties which relate to the Services fully recognize the
commitments, express objectives and the obligations of NBA and
the Contractor under a Call-Off Contract.
5.3. NBA has agreed to the terms and conditions of this Agreement
on the understanding that the Contractor is able to perform
the Services and that the Contractor will use and show all
reasonable skill and judgment consistent with such ability in
the performance of the Services. All Services shall be
performed in accordance with the terms of this Agreement and a
Call-Off Contract and in accordance with professional
telecommunications practice.
5.4. Where services provided by a Third Party under contract to NBA
will be utilized by the Contractor in the provision of the
Services the Contractor shall undertake to review with NBA,
subject to the requirements of Section 37, the service
description contained in NBA's contract with such Third Party
to ensure that service levels specified therein are consistent
with those required by the Contractor in order to meet the
Service Levels. The Contractor shall be ultimately responsible
for ensuring that such third parties meet or exceed such
service levels.
5.5. The Contractor acknowledges that its provision of Services may
result in certain areas of shared responsibility with M&I.
Areas of shared responsibility have been identified by the
Contractor and M&I and are presented in Annex F. For each
shared responsibility, an explanation of single point
accountability is also provided in Annex F. For those areas
noted as Contractor single point accountability and those
shared areas where Contractor is noted as being primarily
responsible, Contractor shall have the ultimate obligation to
ensure such Services are performed in accordance with this
Agreement and any Call-Off Contract.
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6. STRATEGIC DIRECTION, TECHNICAL ARCHITECTURE AND
SELECTION OF PRODUCTS
6.1. The Contractor will assist in the production and
implementation of a telecommunications strategy aimed at
cost-effective support for the NBA business strategy. The
Contractor acknowledges that NBA has the ultimate authority in
strategic direction and will, in the provision of the
Services, comply with formally promulgated NBA IS policies and
standards as amended from time to time. Both NBA and the
Contractor will endeavor to inform each other in a timely
manner of any fundamental policy changes or constraints which
will affect the implementation of the telecommunications
strategy.
6.2. In collaboration with designated NBA management personnel and
M&I technical consultants, the Contractor will recommend for a
Call-Off Contract and NBA will approve, at its discretion,
appropriate technical architectures and products (excluding
consumables) to be used in providing the Services.
6.3. In the event that the activities referred to in Sub-sections
6.1 and 6.2 are outside the Scope of Work, the Contractor may
charge separately for carrying out such work but will not
proceed without the prior written agreement of NBA.
7. ESTABLISHMENT OF A TELECOMMUNICATIONS REVIEW BOARD
7.1. NBA, M&I and the Contractor shall participate in a
Telecommunications Review Board (the "Board") which will meet
to:
7.1.1. Consider any operational matters referred by NBA
management,
7.1.2. Review each Party's performance against their
respective obligations to provide the Services under
this Agreement and a Call-Off Contract,
7.1.3. Review and recommend for approval by the Parties any
amendments or modifications to the scope or terms of
this Agreement,
7.1.4. Review and recommend for adoption by the Parties
minimum standards and guidelines for performance
measurement against industry benchmarks,
7.1.5. Endeavor to resolve any matters of interpretation,
disputes, disagreements or defaults arising under
this Agreement or referred to by NBA management,
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7.1.6. Make recommendations to NBA management to stop,
suspend or modify any practice or component of the
Services,
7.1.7. Perform such other duties or responsibilities as are
delegated by NBA and the Contractor to the Board,
7.1.8. Request from NBA management such reports and
information as it considers reasonable and necessary
to perform its duties, and
7.1.9. Facilitate the relationship between the Parties to
ensure that the spirit of the provisions of Annex C
are achieved. For the avoidance of doubt, whenever
there is reference to a recommendation being made by
the Board, no change shall be effected unless agreed
to in writing between NBA and the Contractor;
7.2. Composition and Responsibilities
7.2.1. The Board shall comprise Representatives nominated by
NBA, M&I and the Contractor pursuant to this
Agreement. The Board shall be chaired by an NBA
Representative.
7.2.2. If a Representative is unable to perform his or her
duties or leaves the employment of either NBA or
Contractor, as applicable, then the Party which has
the resulting vacancy on the Board will nominate a
replacement Representative within twenty (20)
business days to fill such vacancy.
7.2.3. The Contractor's continued membership of the Board
shall be dependent upon the existence of:
7.2.3.1. A current and subsisting Call-Off Contract
to which the Contractor is party; or,
7.2.3.2. Negotiations between the Contractor and
NBA with the objective of entering into a
Call-Off Contract.
If neither of the conditions expressed in
Sub-sections 7.2.3.1 to 7.2.3.2 above shall apply the
Contractor's Representative shall resign from the
Board such resignation to be without prejudice to any
other rights and obligations under any Call-Off
Contract.
7.2.4. The Board shall be responsible for the evaluation of
the Service Level Agreement as defined in Annex A and
amended in a Call-Off Contract for the purpose of
determining the Contractor's Risk/Reward Incentive
payment as outlined in Sub-section 18.1.3.
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7.3. Nomination of Representatives
7.3.1. NBA and the Contractor shall, by written notice of
nomination copied to other parties entitled to
nominate Representatives, nominate within twenty (20)
business days of the commencement date of this
Agreement their Representatives to the Board. The
Parties may change their Representatives at any time
by giving written notice to each other but the
Parties agree that the Representatives will have full
power and authority on behalf of the Party which
authorized their nomination to make recommendations
and otherwise deal with all matters that are within
the cognizance of the Board under this Agreement.
7.3.2. The role and/or presence of either Party's
Representative shall not in any way relieve either
Party of their respective obligations under a
subsisting Call-Off Contract.
7.3.3. NBA retains the right to refuse participation by any
individual representative on the Telecommunications
Review Board.
7.4. Frequency of Meetings of the Board
Meetings of the Board shall take place quarterly or otherwise
as determined by the Board provided always that any
Representative may request a meeting at any time upon giving
twenty (20) business days notice to other Representatives. The
location and manner of meetings will be determined by the
Board.
7.5. Costs
Each Party which has Representatives to the Board shall be
responsible for all costs and other expenses associated with
the attendance of their respective Representatives at Board
meetings and such costs and expenses shall not form any part
of Actual Costs.
8. SCOPE CHANGES
8.1. General
This Agreement sets out the procedures for changing the scope
of the Services. Both Parties (which in the context of this
Section shall mean the Parties to this Agreement and a
Call-Off Contract) recognize that the mutual success of this
relationship requires that each be motivated to keep Major
Changes to a minimum in order to continuously manage costs
associated with Targets while maintaining or improving NBA's
use of and access to improved telecommunications technologies.
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8.1.1. NBA commits to implementing as part of the NBA
Partner Relations Manager's personal objectives the
aim of continuously managing, in conjunction with the
Contractor, the Actual Costs consistent with
providing the Services in accordance with a relevant
Call-Off Contract.
8.1.2. A Major Change means any event or series of events
which materially increases or decreases the scope of
the Services and/or the Contractor's Actual Cost.
8.1.3. It is envisioned that Major Changes will be
infrequent.
8.1.4. All proposals for Major Changes shall be reviewed by
the Telecommunications Review Board when so requested
by NBA management.
8.1.5. The work undertaken by the Contractor in carrying out
changes which are not Major Changes and in
subsequently providing the Services subject to such
changes, shall not result in any variation to the
Target.
8.1.6. All changes shall be agreed to by the Parties and
subject to Operational Change Control Procedures to
be agreed between NBA and the Contractor and
incorporated in the relevant Scope of Work and/or
Service Level Agreement.
8.2. Major Changes
8.2.1. Either Party may raise a proposal for consideration
by the other to modify, change, reduce, add to or
replace the Services in a manner which that Party
considers may constitute a Major Change. Such
proposal shall be presented for discussion at a
meeting of the NBA management chaired where
appropriate by the designated NBA Partner Relations
Manager as defined in Annex A. The cost of preparing
and presenting the proposal shall be borne by the
Party raising the proposal. In the event that NBA
requests the Contractor to prepare a proposal
involving significant costs in its preparation, the
Contractor may request reimbursement of such costs.
8.2.2. The Contractor shall supply NBA with such information
as NBA may reasonably request to substantiate any
costing furnished under this Sub-section 8.2.
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8.3. Contractor's Internal Changes
Subject to Operational Change Control Procedures the
Contractor shall be entitled to modify, change, add to, reduce
or replace the means and/or method of providing the Services,
provided that any such modification, change, addition,
reduction or replacement has been agreed to with the NBA
Partner Relations Manager and M&I Representatives and can be
achieved within the Target and does not detract from, reduce
or impair the overall performance or operation of the
Services, or require any material alteration to the physical
interface or protocol used by NBA in using the Services. In
the event that such proposed change is rejected by NBA, the
Parties will meet to discuss in good faith and agree to an
equitable adjustment of the Target.
8.4. Implementation of Major Changes
8.4.1. NBA shall have the right to invite quotations from
Third Parties for the development, testing and
implementation of any Major Change to the Services.
For the avoidance of doubt within this Sub-section
8.4, Services are those defined in Annex A. NBA may
at its sole discretion award such Major Change to a
Third party subject to the following:
8.4.1.1. If the Services associated with the Major
Change include Network Services as defined
in Annex A and the Contractor can provide
the Services at a cost and quality level
equal to that offered by a Third Party,
the Contractor will be awarded the Major
Change;
8.4.1.2. If the Services associated with the Major
Change include Network Services as defined
in Annex A and if the Contractor cannot
provide the services at a cost and quality
level equal to that offered by a Third
Party, the Contractor shall have the right
to either: (i) sub-contract the Services
with a Third Party subject to the
provisions of Section 22; or (ii) serve as
NBA's agent in acquiring the Services from
a Third Party treating such services in
accordance with Section 22, provided,
however that NBA must preapprove any
agreement with any Third Party in writing.
8.4.1.3. If the Services associated with the Major
Change do not include Network Services as
defined in Annex A and the Contractor can
provide the Services at a cost and quality
level equal to that offered by a Third
Party, the Contractor will be awarded the
Major Change, subject to the right of NBA
to make adjustments to the Contrac-
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tor's Scope of Work during negotiation of
a subsequent Call-Off Contract in
accordance with Sub-section 39.3.4.
8.4.1.4. If the Services associated with the Major
Change do not include Network Services as
defined in Annex A and if the Contractor
cannot provide the Services at a cost and
quality level equal to that offered by a
Third Party, NBA shall have the right to
either: (i) permit the contractor to
sub-contract the Services with a Third
Party subject to the provisions of Section
22; or (ii) NBA will have the right to
assume responsibility for the Services
subject to the provisions of Sub-section
8.4.2.
8.4.2. If the Parties have agreed to a Major Change, then
the Contractor shall carry out the implementation
plan and the Target shall be adjusted in accordance
with the proposal.
8.4.3. Following the completion of the implementation phase,
the Service Description shall be changed so that it
includes a description of the change which has been
implemented.
8.5. Implementation of Related Work by a Third Party
8.5.1. NBA shall have the right to instruct a Third Party to
carry out work related to (but not part of) the
Services for which that Third Party has submitted a
quotation acceptable to NBA.
8.5.2. In such event the Contractor shall provide such
assistance as reasonably necessary for the
implementing of such work as part of the Services,
including, without limitation, assistance and
facilities to enable the Third Party if necessary to
carry out live system testing in relation to such
work. The Contractor shall use all reasonable
endeavors to ensure that such assistance is provided
by the staff to be made available by the Contractor
pursuant to the Services.
8.5.3. Subject to the Contractor's reasonable management
requirements and to Operational Change Control
Procedures, the Contractor shall permit the Third
Party to use the Contractor Equipment and the Network
for system testing purposes, under the terms of a
Call-Off Contract, at times to be agreed between the
Third Party and the Contractor, such agreement not to
be unreasonably withheld or delayed.
8.5.4. To the extent that any activity during the
development, testing, acceptance and subsequent
implementation of a change by a Third Party impacts
upon the Scope of Work, Actual Costs or the
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Service Levels the same shall be amended, upon mutual
agreement, and the Target adjusted retroactively to
the date of impact of the said change. NBA shall
ensure that the Third Party performs in a manner
consistent with quality standards and Operational
Change Control Procedures under a Call-Off Contract.
For the avoidance of doubt any responsibilities upon
NBA under this Sub-section 8.5.4 shall be at an end
from the date or point upon which the Contractor has
agreed to such amendments and adjustments.
9. USE OF SERVICES
9.1. NBA shall undertake to use the Services in accordance with
such reasonable operating instructions as may be notified in
writing or orally (confirmed in writing) to NBA by the
Contractor.
9.2. Without limitation to the generality of Sub-section 9.1, NBA
and the Contractor shall undertake individually to use their
respective best endeavors to ensure that the Services are not
used:
9.2.1. For the transmission of any material which is
defamatory, offensive or abusive or of an obscene or
menacing character; or
9.2.2. In a manner which constitutes a violation or
infringement of the rights of any person, firm or
company (including but not limited to rights of
copyright or confidentiality).
9.3. The Parties shall indemnify and hold each other harmless
against all liabilities, claims, damages, losses and
proceedings in any jurisdiction arising out of or in any way
connected with their respective failure to comply with the
obligations referred to in Sub-section 9.2.
10. APPROVALS AND LICENSES
10.1. Subject to Sub-section 10.2 the Contractor shall ensure,
maintain, and observe all relevant regulatory, administrative,
and governmental licenses, waivers, consents, registrations
and approvals (collectively "Approvals") (including making any
notifications) necessary for NBA and Authorized Users to make
use of the Services and to allow the Contractor to provide the
Services.
10.2. The Parties recognize that certain Approvals can, by their
very nature, only be obtained by NBA or relate solely to NBA's
ability to make use of the Services provided by the
Contractor. In such event NBA shall obtain the necessary
Approvals.
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10.3. The Contractor has an obligation to point out such approvals
to NBA and assist NBA to comply as required.
10.4. Each Party shall indemnify the other against all claims,
costs, liabilities and expenses they may suffer as a result of
a Party failing to observe its obligations pursuant to this
Section 10. For the avoidance of doubt the requirements set
out in this Section shall not diminish or expand the
obligations of any Party to a relevant Call-Off Contract.
11. WARRANTY AND BENCHMARKING
11.1. The Contractor shall implement a quality management program
that is consistent with the minimum standards of ISO 9000 or
similar industry quality standard and shall provide copies of
all quality management documents to NBA upon request.
11.2. NBA shall have the right to compare and measure the Services
provided pursuant to a Call-Off Contract against services of
comparative quality and scope available from Third Parties
operating in the same marketplace. In the event that a
substantial and material differential shall be identified
between the cost and/or quality of providing the Services
compared with the costs and/or quality available from such
Third Parties, the Contractor shall review NBA's conclusions
and shall implement agreed to changes (if any), consistent
with Section 22, to a relevant Call-Off Contract within a
reasonable period of time to bring down the cost of the
Services and/or to adjust the quality of the Services in line
with the external marketplace.
12. ACQUISITION OF NEW TECHNOLOGY AND PROCESSES
12.1. It is envisioned that the provision of the Services in
accordance with the terms of this Agreement and the Call-Off
Contracts will commit the Contractor to the awareness and use
where appropriate of advanced state of the art technology and
processes available from time to time in the
telecommunications industry world-wide. The Contractor shall
commit to the evaluation of such state of art technology and
processes including established technology and processes where
it can be shown that its application to the Services will
provide NBA with improvements in cost benefit or performance
provided that where NBA requests such evaluation the
Contractor may charge separately for carrying out such work
and shall not proceed without the agreement of NBA.
12.2. To the extent that the Contractor shall be required to provide
the Services in conjunction with Third Parties the Contractor
shall investigate
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and endeavor to adopt measures to maintain the Contractor's
competitiveness with such Third Parties with the objective of
achieving the best level of savings consistent with the
provision of Services at the quality levels envisioned under
this Agreement. The processes and measures adopted by the
Contractor in compliance with this objective shall be in full
compliance with applicable legislation.
13. ASSET AND LEASE TRANSFERS
13.1. The Contractor shall in relation to a Call-Off Contract be
entitled to identify existing NBA owned assets and leases
which are in the reasonable judgment of the Contractor
required for the purposes of the Services.
13.2. NBA shall endeavor to comply with the Contractor's
requirements referred to in Sub-section 13.1 above provided
that NBA shall be under no obligation to sell, transfer or
assign any asset or lease if NBA is unable or is otherwise
prejudiced to comply with the said requirements. In the event
that NBA shall not for whatever reason transfer, assign or
otherwise make available such an asset which the Contractor
and NBA agree to is necessary for the provision of the
Services, NBA shall, at its option, provide for access by the
Contractor to such asset as may be reasonably necessary to
provide the Services or allow the Contractor to procure an
alternative asset in accordance with Sections 9 and 14.
Notwithstanding the preceding sentence it is expressly
acknowledged that wiring and other like fixtures integral to
NBA premises will always be excluded as assets capable of
transfer or sale. Furthermore NBA shall be entitled to specify
that any particular asset sold, transferred or assigned may
not be used by the Contractor for Third Party business
purposes.
13.3. In cases where NBA and the Contractor can reach agreement in
relation to the sale, transfer or assignment of an asset or
lease, the Parties shall agree to a consideration based on the
market value of the asset or lease or such other basis of
consideration as shall optimize the transaction with the
objective of reducing the Actual Cost of the Services. In the
event that the consideration agreed to shall be other than at
zero or nominal value the consideration shall be charged back
to NBA as part of the Services at a rate sufficient to recover
the full cost to the Contractor of the acquisition of the
asset or lease over the agreed to remaining useful life of the
asset or lease. The transfer of any such asset or lease shall
be governed by the terms of Annex E.
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13.4. Where any Contractor Equipment is retained or located at a NBA
location, risk in such Contractor Equipment will remain with
the Contractor provided that NBA shall comply with such
reasonable duties of care as the Contractor may specify in
respect of such Contractor Equipment.
14. REMUNERATION
14.1. The Parties shall agree to a methodology for remuneration to
the Contractor which recognizes the principles in Section 3.
The elements of the remuneration shall comprise Actual Costs,
a fixed Margin and Incentives based on performance relative to
agreed to Targets, subject to adjustments in accordance with
Sub-section 18.1.3.
14.2. For each Year, or for such other period as may be agreed
between the Parties to a Call-Off Contract, a Target, Margin
and Incentives will be agreed. The Parties to a Call-Off
Contract shall exercise commercially reasonable efforts to
reach agreement on such matters no later than September 30 in
the current Year. In the event that the Parties fail to reach
agreement on either the Target, the Margin or the Incentives
by September 30 in the current Year the Parties shall
immediately thereafter refer the disagreement to the
Telecommunications Review Board for discussion and subsequent
recommendation. If the Telecommunications Review Board cannot
agree to a recommendation or if the Parties cannot accept the
recommendation made, or otherwise agree, prior to December 31
in the current Year a failure to agree shall then exist and
the relevant Call-Off Contract shall be subject to termination
in accordance with Section 39.
14.3. An illustration of the way in which it is envisioned the
Charges will be calculated and paid is set out in Annex B.
15. TARGETS
15.1. For each Year of a Call-Off Contract, or for such other period
as may be agreed to between NBA and the Contractor, a Target
as defined in Annex A will be agreed.
15.2. In 1996, NBA and the Contractor shall in respect of the
Services to be provided agree to an overall Target. The
Contractor shall provide the Services at a total charge to NBA
which shall enable NBA to achieve its expectation of savings.
The total charge to NBA, or Target, includes the Contractor's
Expected Cost of Operations (CoOE) as defined in Annex A less
********, whichever is greater.
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15.3. In 1997 and beyond, NBA and the Contractor shall in respect of
the Services to be provided agree to an overall Target. The
Contractor shall provide the Services at a total charge to NBA
which shall enable NBA to continue to achieve its expectations
of savings. Under the terms of this Sub-section, the Target
will include: ********.
16. COSTS DEFINITIONS
16.1. Actual Costs incurred by the Contractor in providing the
Services shall comprise Direct Costs, Sub-contractor Costs and
Network Services Costs as follows:
16.1.1. Direct Costs means all costs incurred by the
Contractor which are solely and directly attributable
to the provision of the Services pursuant to a
Call-Off Contract, such costs to include by way of
example but not by way of limitation:
16.1.1.1. Salaries of all employees of the
Contractor which shall be deemed to
include, without limitation, all personal
benefits and expenses as incurred in the
performance of the Services under the
Call-Off Contract together with employer's
insurance or other employer's social
security contributions, and employer's
contribution to employee pension benefits.
16.1.1.2. Costs of network, desktop and computing
equipment;
16.1.1.3. Costs of software purchase, licenses and
maintenance;
16.1.1.4. Costs of depreciation and lease rentals
related to assets used in the provision of
the Services, licenses and maintenance in
respect of such assets;
16.1.1.5. Costs for designated network operation and
technical services provided on-demand
based upon actual time and materials
required as outlined in Annex C;
16.1.2. Sub-contractor costs which will include the costs to
the Contractor for services obtained from a
Sub-contractor which are solely and directly
attributable to the provisions of services pursuant
to a Call-Off Contract, plus ******** handling fee
and
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shall be included within the structure of the
Contractor's monthly invoice;
16.1.3. Network Services Costs means those costs for services
provided by the Contractor which are solely and
directly attributable to the provision of the
Services pursuant to a Call-Off Contract, such
services to include by way of example but not by way
of limitation;
16.1.3.1. Network Management Services including
monitoring, reactive and proactive
management and configuration management;
16.1.3.2. Message Toll Services (long distance);
16.1.3.3. Public or private data network services,
including but not limited to private
leased lines and frame relay.
16.2. The Contractor's, or Contractors Associated Companies,
corporate or head office overheads shall not form any part of
the Direct Costs. By way of illustration and not by way of
limitation, corporate or head office services under the
following generic business activities are excluded:
16.2.1. Finance and Planning
16.2.2. Marketing and Sales
16.2.3. Human Resources
16.2.4. Contracts and Procurement
16.2.5. Internal and External Audit
16.2.6. Legal
16.2.7. Public Affairs
16.2.8. Corporate, General and Executive Management
16.2.9. Corporate Offices and Associated Costs
This is provided that in the case of Sub-sections
16.2.1, 16.2.3, 16.2.4 and 16.2.6 above an
appropriate proportion of such overhead costs may be
treated as Direct Costs for specific cases provided
such costs have been identified and agreed to in
writing in advance and have been incorporated in the
Target for that Year. Such costs shall be determined
in the manner set out in Sub-section 16.1.1.1.
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17. MARGIN
17.1 The Margin shall, over the term of this Agreement and the
Call-Off Contracts, be determined for each Year at levels in
accordance with the following:
17.1.1. In 1996, a margin of ********.
17.1.2. In 1997, a margin of ********.
17.1.3. In 1998 - 2001, margin increases above those
referenced for the current year will occur as
outlined for the following conditions:
17.1.3.1. If the current year's Target is not met,
no increase will be applicable in the
subsequent year;
17.1.3.2. If the current year's Target is met, an
increase of ******** will be applicable in
the subsequent year; or
17.1.3.3. If the current year's Target is under-run
by ******** of the Target or more, an
increase of ******** will be applicable in
the subsequent year.
17.2. In respect of the Year 2002 and each subsequent Year, NBA and
the Contractor will commence discussions with a view to
agreeing to the Margin for such Year in the preceding Year.
17.3. Margins shall be applicable against all direct costs as
outlined in Section 16.
17.4. The Margin will be payable in twelve amounts as part of the
monthly invoices referred to in Section 19.
18. RISK/REWARD INCENTIVES
18.1. As a part of remuneration assessed in accordance with this
Agreement, the Contractor shall be entitled, if the Actual
Costs plus Margin incurred shall be less than the Target in a
Year ("cost underrun"), to an Incentive based on the
difference between the Target and the Actual Costs plus Margin
incurred. The Incentive payment related to such cost underrun
shall be a percentage of such cost underrun, such percentage
to be determined in accordance with the provisions of
Sub-sections 18.1.1 and 18.1.3. In the event that the Actual
Costs plus Margin incurred shall exceed the Target in a Year
("cost overrun"), the Contractor and NBA shall share such cost
overrun, by the payment by Contractor of an Incentive equal to
a percentage of such cost overrun, such percentage to be in
accordance with the provisions of Sub-section 18.1.2.
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18.1.1. Where there is a cost underrun, the Incentive shall
be the Contractor's share of such cost underrun and
paid by NBA to the Contractor, determined as follows:
Agreement NBA's Contractor's
Year Share Share
--------- ----- ------------
1996 **** ****
1997 **** ****
1998 **** ****
1999 **** ****
2000 **** ****
2001 **** ****
18.1.2. Where there is a cost overrun, the Incentive shall be
the Contractor's share of such cost overrun and paid
by the Contractor to NBA, determined as follows:
Agreement NBA's Contractor's
Year Share Share
--------- ----- ------------
1996 **** ****
1997 **** ****
1998 **** ****
1999 **** ****
2000 **** ****
2001 **** ****
18.1.3. Service Level Performance Evaluation
18.1.3.1. Payment of Incentives as defined in
Sub-section 18.1.1 shall be subject to the
Contractor's Service Level performance.
18.1.3.2. Specific Service Level performance
evaluation methodology will be included in
each Call-Off Contract.
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18.1.3.3. The Contractor must meet or exceed Service
Levels defined in Annex C and amended in a
Call-Off Contract in order to receive
******** of the Risk/Reward Incentive as
defined in Sub-section 18.1.1.
18.1.3.4. The Risk/Reward Incentive that may be due
the Contractor at the conclusion of a
Call-Off Contract may be reduced by the
Telecommunications Review Board based upon
criteria outlined in the Call-Off
Contract. The disbursement of any
Incentive payment shall be the
responsibility of the Telecommunications
Review Board.
18.2. For the avoidance of doubt no payments shall by virtue of this
Agreement be due from NBA to the Contractor in respect of the
Services unless mutually agreed to by the Parties but shall
instead be dependent upon the existence of an obligation to
make payments in a Call-Off Contract between NBA and the
Contractor and only to the Parties to such Call-Off Contracts.
18.3. In the event that the Contractor shall in the provision of the
Services have obtained or procured services from Third
Parties, NBA shall be under no obligation nor have any
responsibility which would otherwise have been due to the
Contractor. Furthermore the Contractor shall ensure that such
payments are made in a timely manner and in accordance with a
mechanism which will not in its operation prejudice the
objectives of NBA under this Agreement or a Call-Off
Contracts.
19. INVOICING AND SETTLEMENT
The Contractor shall in respect of its remuneration for the Services
submit its invoices in accordance with the provisions of a Call-Off
Contract subject to the following:
19.1. Invoices submitted by the Contractor will show the Margin and
applicable costs.
19.2. In addition to the requirements of Sub-section 19.1 the
invoices will show cumulative Actual Costs plus Margin to the
end of the latest invoicing period for which Actual Costs and
Margin are available.
19.3. The basis of payment shall, subject to Sub-sections 19.4 and
19.5 below, be monthly based upon Services delivered. The
Contractor shall submit the relevant invoice no later than
fifteen (15) calendar days after the end of the relevant month
or as otherwise mutually agreed.
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19.4. Notwithstanding Sub-section 19.3 above, payments representing
Incentives referred to in Section 18 will be paid in arrears
no later than ninety (90) calendar days after the end of the
relevant Year by which time final adjustments for Actual Costs
will also be completed. Such final adjustment will be
determined as follows:
Aggregate Actual Cost
+
Margin
+/-
Incentive
-
Actual Payments
19.5. Subject to Sub-section 19.3 above, the Contractor's invoice
will be paid no later than thirty (30) calendar days following
receipt of the invoice for the relevant month.
19.6. Payment of Taxes
19.6.1. All sums due to the Contractor under a Call-Off
Contract are exclusive of any sales tax, and any
other similar taxes which may from time to time be
introduced, which shall be charged thereon in
accordance with the relevant regulations in force at
the time of making the taxable supply, and shall be
paid by NBA.
19.6.2. Valid tax invoices shall be issued in respect of all
payments due under a Call-Off Contract and shall
conform with relevant fiscal requirements.
19.6.3. The Contractor shall indemnify NBA in respect of any
penalties or interest charges incurred consequent
upon any error or omission by the Contractor.
19.7. In the event that Charges and other amounts are not paid in
accordance with the provisions of this Section 19 either Party
to a Call-Off Contract may subject to ten (10) calendar days
notice given in writing to the other Party, and failing
receipt of moneys due within said notice period and without
prejudice to any other rights or remedies available under a
Call-Off Contract, charge daily compounding interest on
legitimate outstanding undisputed amounts, until payment in
full is received from the other Party, at a rate equal to
******** above Prime Lending Rate per annum (or as otherwise
agreed between the Parties) current from time to time, whether
before or after judgment. Interest shall continue to accrue
unless and until payment is made notwithstanding termination
of a Call-Off Contract for any cause whatsoever.
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19.8. In the event that Charges and other amounts are not paid in
accordance with the provisions of this Section 19 either Party
to a Call-Off Contract may subject to ten (10) calendar days
notice given in writing to the other Party, and failing
receipt of moneys due within said notice period and without
prejudice to any other rights or remedies available under a
Call-Off Contract, place the disputed amounts in an Escrow
account until the dispute can be resolved.
20. TAX
20.1. The Contractor shall supply and shall ensure that any
Associated Companies of the Contractor engaged in relation to
the Services shall supply to NBA such information (including
documentary information) in connection with its or their
activities under or pursuant to the Call-Off Contract as may
be required by NBA.
20.2. The Contractor shall retain, and shall ensure that Associated
Companies shall retain, all information and documents as shall
enable the Contractor to comply with its obligations under
Sub-section 20.1.
20.3. The Contractor shall duly pay and shall ensure that each of
its Associated Companies shall duly pay, all taxes which shall
be properly and lawfully assessed or imposed on the Contractor
or its Associated Companies by local, state or federal
entities in connection with the carrying out of the Services
and/or works under a Call-Off Contract or any sub-contract or
purchase order hereunder. The Contractor acknowledges and
shall if NBA shall so request ensure that its Associated
Companies shall acknowledge that NBA is not and shall not
become liable to any taxes referred to in this Sub-section
20.3.
20.4. Liabilities
20.4.1. The Contractor shall indemnify and keep NBA
indemnified against all liabilities incurred as a
consequence of breach by the Contractor or the
Contractors Associated Companies of any of the
obligations under Sub-sections 20.1 and 20.2 and in
respect of all actions, proceedings, claims, damages,
charges, costs and expenses whatsoever in relation
thereto.
20.4.2. The Contractor shall indemnify and keep NBA
indemnified against all liabilities to tax
acknowledged under Sub-section 20.3 to be the
liability of the Contractor.
20.5. The Contractor is deemed to have taken into account all taxes,
levies or contributions having effect on the provision of the
Services. If, on or after the date of award of a Call-Off
Contract, there shall be any material
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change in the level or in the incidence, or any new incidence
or abolitions, of any local, state or federal tax, levy or
contribution which are by law payable by the Contractor or any
Sub-contractor or supplier hereunder in respect of its
employees working wholly on the Services and/or works or in
respect of the Contractor or any Sub-contractor's or
supplier's activities under a Call-Off Contract or any
sub-contract or purchase order thereunder, NBA and the
Contractor shall agree if any appropriate adjustments should
be made to the Targets failing which a failure to agree shall
be deemed to have occurred in accordance with the terms of
Sub-section 39.3.4.
The net amount due to, or from any Sub-contractor of the
Contractor as a result of any change, new incidence or
abolitions arising from the provisions of Sub-section 20.5
shall be paid to, or recovered from, the Contractor by NBA as
though such increase or decrease had directly affected the
Contractor.
For the purpose of this Sub-section only, "tax" includes any
duty or charge and any penalty or interest thereon and any
other costs and charges whatsoever assessed or imposed by any
competent local, state or federal entity and having effect
nationally and any other authority wheresoever having
jurisdiction over the Contractor or its Sub-contractors or NBA
by virtue of this Agreement or a Call-Off Contract.
21. FINANCIAL AUDIT
21.1. The Contractor commits to the principle of open book
accounting with the objective of verifying, on a retrospective
basis, the Direct Costs and Sub-contractor Costs against which
Adjustment and Margin arrangements were calculated and
applied.
21.2. Subject to the incorporation of appropriate safeguards which
shall be determined by the Contractor acting reasonably to
prevent inappropriate access to and knowledge of sensitive
information held by the Contractor, it is agreed to by the
Parties that the intent of Sub-section 21.1 is to provide for
visibility and clear understanding between the Parties of
Direct Costs and Sub-contractors Costs.
21.3. Subject to Sub-section 21.2 NBA shall have rights to conduct
audits in relation to records held by the Contractor relating
to the Direct Costs and Sub-contractors Costs of goods and/or
services provided for the Services. In fulfillment of these
rights the Contractor undertakes to ensure equivalent audit
rights in favor of NBA in respect of Associated Companies of
the Contractor. In addition:
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21.3.1. Such audits shall be conducted by a designated NBA
officer or an independent auditor (whose appointment
shall be at NBA's expense and shall be subject to
approval by the Contractor such approval not to be
unreasonably withheld). The frequency of such audits
shall be at NBA's discretion provided always that NBA
shall give reasonable notice of such requirements to
the Contractor and shall exercise reasonable
endeavors to conduct such audits with the lowest
levels of inconvenience and disturbance practicable
being caused to the Contractor.
21.3.2. Subject to the retention of records as required by
law, the Contractor shall for the purposes of this
Section 21 retain records relating to the Services
for a period of twenty-four (24) months after the end
of the relevant Year.
21.4. Financial reporting in accordance with this Section 21 will be
achieved:
21.4.1. By the submission of invoices in accordance with the
Call-Off Contract
21.4.2. And in relation to the overall performance of the
Contractor's obligations by means of the
Telecommunications Review Board.
21.5. Any adjustment to the level or appropriateness of charges or
recoveries incurred or paid pursuant to the Services shall be
agreed to within a period of 30 calendar days from the
submission of the NBA audit report and shall be implemented in
the next available Invoice or Invoices. Such agreed to
adjustments shall not incur an interest charge otherwise
applicable in accordance with Sub-section 19.8.
21.6. Nothing contained in this Section 21 shall be deemed to limit
the right of NBA to challenge at any time or to make enquiries
concerning Charges, or to require the Contractor to
demonstrate the reasonableness or otherwise of such Charges.
22. SUB-CONTRACTORS
22.1. The Contractor shall undertake to employ only such
Sub-contractors as are capable of contributing effectively to
the express aims of the Call-Off Contracts.
22.2. The Contractor shall have the right to appoint as a
Sub-contractor:
22.2.1. Any Contractors Associated Company without NBA's
consent; and
22.2.2. Any Third Party, subject to NBA's consent.
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22.3. NBA shall have the right to nominate certain Sub-contractors
for the provision of the Services subject to agreement of the
Contractor such agreement not to be unreasonably withheld and
provided that, where the Contractor can demonstrate that the
use of such Sub-contractors would materially prejudice the
Contractor's ability to reduce Actual Costs, then NBA and
Contractor shall agree to an appropriate adjustment to the
Targets.
22.4. The Contractor's use of Sub-contractors of any type shall not
relieve the Contractor from contractual obligations.
22.5. Sub-contractor costs will consist of direct costs to the
Contractor for services obtained from a Sub-contractor plus a
******** handling fee.
23. ASSIGNMENTS AND SUB-LETTING
23.1. The Contractor shall not seek to assign or sub-let any of its
rights, liabilities or obligations under this Agreement (if
any) without NBA's prior written consent. Such consent to
assign or sub-let shall not relieve the Contractor of any
liability or obligation under a Call-Off Contract.
23.2. NBA reserves the right to assign or sub-let the whole or part
of its rights, liabilities and obligations under this
Agreement (if any) to any Associated Company of NBA upon the
same terms and conditions as those agreed between the Parties
without the consent of the Contractor and to any Third Party
with the consent of the Contractor, such consent not to be
unreasonably withheld.
24. EMPLOYMENT OF FORMER NBA EMPLOYEES
24.1. The Contractor shall be free to offer any number of relevant
NBA employees new contracts of employment on its own terms.
NBA will, if such NBA employees shall individually agree,
provide the Contractor with appropriate HR information and
material for the purpose of assisting the Contractor to choose
individuals to whom offers of employment might be made.
24.2. The Contractor will use a best effort to hire at least five
qualified NBA employees who will be displaced by this
Agreement. This best effort will include but not be limited
to, employee presentations concerning GCI opportunities and
interviewing all interested NBA personnel displaced by this
agreement.
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25. EMPLOYEE RELATIONS AND TRAINING
25.1. The Contractor shall implement and maintain recruitment and
training programs for the purpose of ensuring that adequate
levels of trained and motivated personnel are available for
the provision of the Services.
25.2. The Parties shall agree to the principle of Secondment of
employees as defined in Annex A for purposes associated with
the Services or in connection with other relevant business of
NBA.
25.3. Unless otherwise agreed between the Parties, during the term
of this Agreement or a Call-Off Contract neither Party to a
Call-Off Contract shall attempt to induce the other's
employees to work for the other. However, should such
employees of their own accord express a wish to work for a
Party, then that Party shall not be prevented from engaging
such employees either by direct employment or through a Third
Party.
25.4. Consistent with the objectives of achieving a close business
relationship between NBA and the Contractor employees of
either Party shall be invited to join and participate in
seminars, presentations and other forums, whether internal or
external to NBA or the Contractor, which are relevant to the
provision of the Services.
26. CONTRACTOR'S PERSONNEL
26.1. If at any time and for any reason the Contractor's personnel
do not perform their duties to the reasonable satisfaction of
NBA, the Contractor accepts that it should provide suitable
replacements as soon as practicable.
26.2. The Contractor shall undertake not to deploy in the Services
any personnel the Contractor may reasonably believe to be
unacceptable to NBA.
27. FATAL ACCIDENT, INJURY AND DAMAGE TO PROPERTY
27.1. The Contractor shall indemnify NBA and hold NBA harmless from
and against any and all liability for death, illness or injury
to any Third Party or for loss of or damage to any Third
Party's property and against all claims, demands, proceedings
and causes of action resulting therefrom and arising out of
breach of contract, breach of statutory duty or negligence on
the part of the Contractor or its Sub-contractors , or agents
in the provision of the Services and the performance of any of
their obligations under any Call-Off Contract.
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27.2. NBA shall indemnify the Contractor and hold the Contractor
harmless from and against any and all liability for death,
illness or injury to any Third Party or for loss of or damage
to any Third Party's property and against all claims, demands,
proceedings and causes of action resulting therefrom and
arising out of breach of contract, breach of statutory duty or
negligence on the part of NBA, its Sub-contractors or agents
(excluding the Contractor and any of its Sub-contractors or
agents) in relation to the Services and the performance of any
of its obligations under any Call-Off Contract.
27.3. The indemnities referred to in Sub-sections 27.1 to 27.2 above
shall not be subject to the limitation of liability provisions
contained in Sub-section 29.2.
28. INSURANCE
28.1. The Contractor shall maintain full and sufficient insurance
coverage in respect of its liabilities under a Call-Off
Contract and to fulfill any statutory requirements of
government or other appropriate bodies including but not
limited to the provision of personal accident insurance for
their personnel. For the avoidance of doubt, it is recognized
that where personnel are provided by any Sub-contractor, the
Contractor may require the Sub-contractor to provide such
personal accident insurance.
28.2. The Parties shall ensure that each others interests are noted
in all general liability policies subject to policy terms and
conditions and only to the extent necessary to provide
coverage under the other Party's insurances for the liability
assumed by that Party under a Call-Off Contract and shall
supply evidence of all insurances required pursuant to this
Section 28 to each other upon request.
28.3. The Contractor shall self-insure or maintain insurance in
respect of the full replacement value of Contractor Equipment.
28.4. The Parties shall obtain from their respective underwriters a
waiver of all rights of subrogation against the other Party
including its employees, Associated Companies, co-venturers
and Sub-Contractors, and such waiver shall be endorsed upon
all such policies of insurance.
29. LIMITATION OF LIABILITY
29.1. With respect to any claim for damages arising pursuant to any
Call-Off Contract the maximum liability for any claim and/or
all claims against a Party for damages shall with the
exception of sums due and owing in respect to Services, be
limited to an amount equal in any one Year to
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$300,000 or 10% of the amount invoiced by the Contractor in
the 12 months preceding the claim or claims, whichever is
greater; subject always that any such claim shall be time
barred and invalid if not notified by one Party to the other
within a period of 12 months taken from the later of either
the date when the cause of action arose or the date when the
Party seeking damages ought reasonably to have been aware of
the existence of such a claim and provided that in the first
Year of a Call-Off Contract the reference in this Sub-section
to amounts invoiced in the 12 months preceding the claim shall
instead be limited by reference to $300,000 or 10% of the
Target for that Year, whichever is greater.
29.2. In any event and under no circumstances, including the
negligent act or omission of itself or its agents, shall
either Party be liable to the other whether under this
Agreement, the Call-Off Contracts or otherwise in contract,
tort, breach of statutory duty or otherwise in respect of any
loss of revenue, business, contracts, anticipated savings, or
profits or commercial opportunities or in respect of any
indirect or consequential loss whatsoever.
29.3. For the avoidance of doubt neither Party to this Agreement
shall be liable under this Agreement for any default by the
Parties to any Call-Off Contract , or as a result of any
request to/or demand made of the Parties to a Call-Off
Contract by the Parties to this Agreement.
29.4. The provisions of this Sub-section shall continue to apply
notwithstanding the termination or expiry of this Agreement or
relevant Call-Off Contract for any reason whatsoever.
30. INDEMNIFICATION
Whenever a Party has an obligation to indemnify the other pursuant to
this Framework Agreement or a Call-Off Contract the following shall
apply:
30.1. The Party claiming the right to be indemnified (the "Claiming
Party") shall give notice to the other Party which may have an
indemnifying obligation ("Indemnifying Party"). Such notice
shall set forth a description of the claim or claims which
entitle the Claiming Party to such indemnification and shall
recite that such claim is made pursuant to this Agreement or
Call-Off Contract and shall further identify the applicable
Section raising the indemnification obligation. Notice shall
be given as soon as practicable after the Claiming Party has
learned of the existence of a claim for indemnification.
30.2. Upon receipt of the notice set forth in Sub-section 30.1
above, the Indemnifying Party will pay promptly to the
Claiming Party being indemnified the amount of all damages,
deficiencies, liabilities, and costs,
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expenses, claims which the Indemnifying Party shall agree to
be due and owing or, in the absence of agreement, as finally
adjudged to be due and owing by a competent court of law
having jurisdiction over this Agreement or the Call-Off
Contracts. The Indemnifying Party shall be entitled to
participate in the defense of any such claim or action and, to
the extent it wishes to assume the defense thereof with legal
counsel of its choosing. The Claiming Party may object to the
assumption of the defense of the alleged claim subject to it
waiving its rights to indemnification in respect of such
claim. Upon notice by the Indemnifying Party of its election
to assume the defense, the Indemnifying Party will not be
liable to the Claiming Party for any legal or other expenses
subsequently incurred by the Claiming Party in connection with
the defense thereof. The Claiming Party may not compromise or
settle any claim for which it has asserted or may assert its
indemnification right without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably
withheld. The Claiming Party shall reasonably cooperate with
the Indemnifying Party in conducting the defense of any claim.
30.3. Except as otherwise agreed the amount of damages, losses,
deficiencies, costs and expenses incurred or suffered to which
indemnification pursuant to this Agreement or Call-Off
Contract relates shall be subject to the limitations referred
to in Section 29.
31. INDEPENDENT CONTRACTOR
In the performance of the Services pursuant to a Call-Off Contract, the
Contractor shall be an independent contractor and nothing in this
Agreement or any Call-Off Contract shall create or be deemed to create
a partnership or, except as specifically provided in any Call-Off
Contract, a relationship of principal and agent or any other
relationship of a similar nature. Except as specifically provided in
the Call-Off Contract, neither Party shall have the power or authority
to bind the other Party in any way.
32. INTELLECTUAL PROPERTY RIGHTS
32.1. If in the course of providing the Services, NBA requests and
the Contractor agrees to create any process, document or other
material to the specification of NBA, not being an enhancement
of an existing product (the "Property"), then the copyright or
other intellectual property right and all legal and beneficial
rights therein shall belong to NBA and the Contractor shall be
permitted to use such Property only to the extent necessary
for the provision of the Services.
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32.2. If in the course of providing the Services (other than as
specified in Sub-section 32.1) the Contractor its employees or
agents create any process document or other material solely in
order to provide the Services and the entire costs of
development have been included in Actual Costs, then copyright
or other intellectual property right and all legal and
beneficial rights therein shall belong to the Contractor,
subject to the right for NBA to require at any time that the
Contractor shall grant NBA a non-exclusive perpetual
royalty-free license for the use of the Property to the
exclusion of any rights to sub-license to any Third Parties.
Any material development of the type envisioned in this
Sub-Clause 32.2 initiated by the Contractor in the course of
and as part of providing the Services shall be subject to the
prior agreement of NBA. The Parties shall execute any
arrangement or other instrument which may be necessary to give
effect to this provisions of this Sub-section 32.2.
32.3. Save as provided for in Sub-sections 32.1 and 32.2 all
copyright or intellectual rights in any process document or
other material created by the Contractor its employees or
agents and all legal and beneficial rights therein shall
belong to the Contractor subject to the Contractor granting
NBA a royalty free license to the use of such Property for the
duration of the Services and solely in relation to the
Services.
32.4. In the event that NBA has developed or may develop or may have
had developed on its behalf certain software or other
intellectual property (the NBA Software) the copyright or
other intellectual property rights shall reside with NBA and
all legal and beneficial rights therein shall be owned by NBA
and the Contractor shall have no right to the use of such NBA
Software other than for the purpose of providing the Services.
32.5. The Contractor shall indemnify NBA and hold NBA harmless from
and against all actions, claims, demands, costs, charges and
expenses arising in any jurisdiction from any infringement or
alleged infringement of letters patent, design, copyright,
trade marks or other intellectual property rights arising out
of or in connection with the performance of a Call-Off
Contract by the Contractor, its Sub-Contractors, or suppliers.
NBA shall indemnify the Contractor against any claims,
proceedings and expenses arising in any jurisdiction from
infringement or alleged infringement of any letters patent,
design, copyright, trademark or other intellectual property
rights by reason of the use by the Contractor of NBA owned (or
equipment provided by NBA) equipment. NBA Software or Third
Party Software not provided or supplied by the Contractor for
use in combination with Contractor Equipment, the Software or
the Network.
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32.6. To the extent practicable the Contractor shall only enter into
commitments with Sub-Contractors and purchase materials and
equipment for use under a Call-Off Contracts from suppliers
who will agree to in writing to indemnify and keep indemnified
the Contractor against any claims for infringement or alleged
infringement of letters patent, design, copyright, trade marks
or other intellectual property rights.
32.7. If at any time an allegation of infringement of copyright is
made in respect of the Software [provided by the Contractor]
in the provision of the Services, or if in the Contractor's
reasonable opinion such an allegation is likely to be made,
the Contractor shall at its own expense either modify or
replace the Software so as to avoid the infringement, without
detracting from overall performance.
33. MINIMUM CONDITIONS OF SATISFACTION
The Contractor agrees to provide NBA services which meet the conditions
outlined in Annex C.
34. SECURITY
34.1. General
34.1.1. NBA reserves the right to establish written policies
and procedures for general application to the
Contractor's personnel and of all Third Party
contractors on any Site which is substantially under
the control of NBA. Whenever reasonably practicable,
NBA shall consult with the Contractor prior to
establishing such policies and procedures. Such
policies and procedures may cover matters such as
health and safety, reporting of disputes,
familiarization and training, offshore procedures,
disciplinary standards and action, inclement weather
working, arrangements for coordination industrial
relations matters on any site and any other similar
matters considered to be appropriate by NBA. Current
and appropriate NBA policies and procedures relevant
to the Call-Off Contract shall be listed, but not by
way of limitation, in Schedule 4 to the Call-Off
Contract.
34.1.2. Each Party shall comply with and shall ensure that
its employees and agents comply with security
regulations and policy standards, codes of practice
and other regulations in force at each others' sites
and shall ensure that copies of such regulations and
policies are made available to each other and their
respective employees and agents. Each Party in
relation to premises controlled by it reserves
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the right where there is reasonable cause to exclude
any employee or agent of the other from entering onto
such premises.
34.1.3. The Parties shall report forthwith to each other all
identified attempts (whether successful or not) by
unauthorized persons (including unauthorized persons
who are employees of the Contractor or NBA) either to
gain access to or interfere with the Data, the
Facilities, the Network, or either Party's
confidential information.
34.2. Data
34.2.1. The Contractor shall maintain fully adequate security
safeguards which are no less rigorous than those
requirements listed in the Scope of Work against the
destruction or loss or unauthorized use or alteration
of Data and Software whether the Data or Software is
stored on the Contractor Equipment or on other
storage media under the Contractor's management or
control as part of the Services. Such safeguards
shall include an obligation on the Contractor to
ensure that access to Data and Software is only
available to such personnel as may be specifically
designated by NBA (Authorized Users or as provided
for in Sub-section 34.4).
34.2.2. NBA's data (both financial and customer records) is
of utmost value and any unauthorized disclosure of
this information by the Contractor is a Material
Breach of the agreement.
34.3. Disaster Recovery
The Contractor shall assist NBA in meeting all regulatory
requirements pertaining to Disaster Recovery and in
cooperation with NBA and M&I implement procedures and a
schedule for testing these procedures within the Scope of
Work.
34.4. Authorized Access to Systems
34.4.1. A list of Authorized Users shall be maintained by NBA
and coordinated with M&I so that a total uniformly
applied process of security is in place. An Access
Code shall be allocated to each such Authorized User.
34.4.2. The Contractor shall have the right with the
agreement of NBA (not to be unreasonably withheld) to
withdraw any Access Code and allocate a new Access
Code to NBA where the Contractor has reason to
believe the Access Code has been discovered and/or
used by a person without the knowledge, consent or
permission, express or implied, of NBA, their
employees or agents.
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34.4.3. The Contractor shall subject to the requirements of
Sub-section 35.4 have the right to withdraw any
Access Code from NBA if the Call-Off Contract is
terminated.
34.4.4. Any Access Code allocated to NBA by the Contractor is
confidential and personal to NBA and NBA shall
exercise reasonable endeavors to keep its Access
Codes safeguarded.
34.4.5. NBA shall:
34.4.5.1. Use the Access Codes in accordance with
the reasonable written instructions given
by or on behalf of the Contractor to NBA
from time to time; and
34.4.5.2. Notify the Contractor promptly orally
(confirmed in writing) where there are
reasonable grounds for suspecting or
believing that a person has discovered or
is making use of any Access Code without
the knowledge, consent or permission of
the Contractor, NBA, their employees or
agents.
35. ACCESS
35.1. Access to Premises
To enable the Parties expeditiously and properly to exercise
their respective rights and obligations under a Call-Off
Contract including, without limitation, the delivery,
installation, inspection, maintenance, testing, disconnection,
alteration or renewal of the Facilities or any part thereof,
or for the purposes of audit, each Party shall permit or
ensure permission for the other Party and any other authorized
person(s) to have reasonable access to the Sites and the
Facilities (including the Contractor's premises and systems)
and shall provide each other with or ensure such facilities
and cooperation as each Party shall reasonably request.
35.2. Access to Information
Each Party undertakes promptly to provide the other Party
(free of charge) with all such information and cooperation
that may reasonably be required and which the first Party is
able to provide from time to time to enable the other Party to
proceed uninterruptedly with the performance of its
obligations under the Contract.
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36. CONFIDENTIALITY
36.1. All information obtained relative to NBA or Third Parties
connected with the business of NBA by the Contractor or
Contractor's or its Sub-contractors or agents for or in
connection with this Agreement and any Call-Off Contract
including negotiations and site visits and during the meetings
of the Telecommunications Review Board shall be considered
confidential and shall not be used by the Contractor its
Sub-contractors, employees or agents other than for the
purposes of the Services, or divulged by the Contractor, its
Sub-contractors, employees or agents to any Third Party
person, firm or corporation other than in accordance with
NBA's prior written instructions or consent.
36.2. All information obtained relative to the business of the
Contractor by NBA or NBA's Sub-contractors or agents in
connection with this Agreement and any Call-Off Contract
including negotiations and site visits to the Contractor or
during meetings of the Telecommunications Review Board shall
be considered confidential and shall not be used by NBA or its
Sub-contractors employees or agents other than for the
purposes of the Services nor divulged by NBA or its
Sub-contractors, employees or agents to any Third Party person
firm or corporation other than in accordance with the prior
written consent of the Contractor.
36.3. Provided that for the purposes of this Section 36 such
information shall be deemed not to be of a confidential nature
to the extent that it is:
36.3.1. Information which was in the public domain at the
time of disclosure or which comes into the public
domain otherwise than through the default or
negligence of the recipient; or
36.3.2. Information which was known to the recipient, under
no obligation of confidence, at the time of
disclosure by the other; or
36.3.3. Confidential information which the receiving Party
can show had been developed by or for the receiving
Party at any time independently of any information
disclosed to it by the disclosing Party, or by a
person who had no access to or knowledge of the
confidential information;
36.3.4. Confidential information the disclosure of which is
required by law, subject to the notification by the
receiving Party of that requirement at least two days
prior to its disclosure;
36.3.5. Information which has been lawfully obtained by the
recipient from a Third Party who in making such
disclosure breaches no obligation of confidence to
the other;
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36.3.6. Confidential information which is disclosed with the
prior written permission of the disclosing Party.
36.4. Notwithstanding Sub-section 36.3 NBA and the Contractor and
their respective Associated Companies shall be permitted to
disclose confidential information to their respective
employees, Sub-contractors and agents who are directly
involved in Call-Off Contracts provided that each Party
ensures that such employees, Sub-contractors and agents are
made aware of, agree to abide by and duly comply with the
obligations set out in this Section 36.
36.5. The obligations relating to confidentiality in this Section 36
shall remain valid and subsisting for a period of three years
(3) from the effective date of termination withdrawal or
removal notwithstanding termination of the Agreement or any
Call-Off Contract or withdrawal or removal of the Contractor
from the Telecommunications Review Board. In the event of
termination of this Agreement or Call-Off Contract(s) or
withdrawal or removal as aforesaid both Parties shall within
thirty (30) Working Days individually return all confidential
information and data which is the property of the other Party
together with all copies of all material then in their
possession relating to the Services which is confidential and
in which it cannot claim any title or other proprietary
rights. There is no time limitation on the Contractor's
obligation to maintain confidentiality.
36.6. The Contractor's personnel working on NBA Sites will be
required to sign a Letter of Confidentiality in the form
annexed as Schedule 6 to a Call Off Contract.
36.7. Nothing in this Agreement shall imply an obligation on any
Party to supply confidential information.
37. DATA PROTECTION
In the course of providing the Services the Contractor will be
compiling, processing and storing personal data for NBA. NBA shall be
responsible for notifying the Contractor of NBA's requirements arising
from the provision by the Contractor of the Services. The Parties
represent and warrant that they will comply with their appropriate
obligations under all data protection legislation in force from time to
time. Each Party shall indemnify the other against any liabilities
costs or expenses arising out of or relating to that Party's failure to
comply with such legislation.
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38. SECURITY AUDIT
38.1. Without prejudice to its other obligations under this Section
38, the Contractor shall in respect of each Call-Off Contract
permit the designated NBA officer or his authorized
representative (the "Auditor"), upon ten (10) Working Days
written notice to have access during each Working Day to the
premises of the Contractor used in the provision of the
Services to examine, only with respect to the provision of the
Services, the arrangements made by the Contractor on behalf of
NBA with respect to the security, integrity and availability
of Data and documentation relating thereto and access to the
Network.
38.2. The frequency of audits conducted in accordance with
Sub-section 38.1 shall be at the discretion of NBA provided
always that NBA shall endeavor to conduct such audits with the
lowest levels of inconvenience and disturbance practicable
being caused to the Contractor.
38.3. The Contractor shall ensure that the provisions of Sub-section
38.1 are facilitated by rights to be included in all contracts
the Contractor shall enter into with its Associated Companies
and shall also (subject to regulatory constraints) endeavor to
achieve the same rights with Sub-Contractors, suppliers and
agents who supply labor, services, equipment or materials in
respect of the Services and which impact on security integrity
and availability of the Data and documentation relating
thereto or access to the Network. The Contractor shall inform
NBA prior to concluding any sub-contract of any failure to
achieve the same rights of audit referred to in this
Sub-section.
38.4. Subject to Sub-section 38.3, NBA shall have the right singly
or as a party with the Contractor to conduct an audit of
Sub-Contractor's and suppliers' systems and procedures with
respect to security, integrity and availability of Data and
documentation related thereto and access to the Network. The
selection of Sub-Contractors or suppliers to be audited shall
be determined by NBA. Such audits shall be carried out at
Sub-Contractors' or suppliers' premises or sites. The
Contractor, Sub-Contractors and other suppliers shall make
every reasonable effort to cooperate with NBA in effecting the
audits.
38.5. The Contractor shall ensure that its Associated Companies
shall maintain true and correct records and documentation
relating thereto in connection with audit described in this
Section 38. In relation to Sub-Contractors, suppliers and
agents the Contractor shall endeavor to ensure the same
standards referred to above. Retention of all such records and
documentation by the Contractor shall be for a period of not
less than 24 months.
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38.6. Any change or amendment to the systems and procedures of the
Contractor, Associated Companies of the Contractor or
Sub-contractors arising from the security audit report shall
be agreed to within thirty (30) Working Days from the
submission of the said report.
38.7. Nothing in this Section 38 shall be deemed to limit the rights
of NBA to make enquiries or challenge at any time any system
or procedure of the Contractor and to require the Contractor
to demonstrate the reasonableness or efficiency of any system
or procedure.
39. COMMENCEMENT, DURATION AND TERMINATION OF
CALL-OFF CONTRACTS
39.1. The commencement, duration and termination provisions
applicable to each Call-Off Contract shall be as specified in
the Call-Off Contract and subject to the terms of this
Agreement.
39.2. The initial term of each Call-Off Contract shall not exceed a
period of twelve months (12) in total from the applicable
Commencement Date.
39.3. A Call-Off Contract may be terminated by a Party or Parties as
specified herein:
39.3.1. Termination for insolvency
Either Party to a Call-Off Contract shall be entitled
to serve written notice on the other to terminate the
relevant Call-Off Contract with immediate effect in
the event that a liquidator (other than for the
purpose of amalgamation or reconstruction),
administrative receiver, administrator or receiver is
appointed in respect of the whole or a material part
of the assets and/or undertaking of the other Party
or the other Party enters into an arrangement or
composition with its creditors, or if it becomes
unable to pay its debts.
39.3.2. Termination for Material Default
Either Party may terminate this Agreement or a Call
Off Contract where the other Party shall be in
Material Default of its obligations as defined in
Annex A under this Agreement or a Call-Off Contract.
In the event of Material Default the non-defaulting
Party may terminate this Agreement or the relevant
Call-Off Contract by serving not less than thirty
days (30) notice on the other Party or such other
period of notice as shall be agreed. If the material
default is cured within the period specified in the
notice the said notice shall lapse. For the avoidance
of doubt,
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there shall be no requirement for a cure period where
the material default is not capable of cure.
39.3.3. NBA's right to terminate by giving sixty days (60)
notice
NBA may terminate any Call-Off Contract for NBA's
convenience by serving at any time upon the
Contractor notice of termination not less than sixty
days (60) prior to the effective date of such
termination, ("termination date").
39.3.4. Mutual termination for failure to agree to on a
Target
Where both Parties have failed to agree by September
30 of any Year on a Target, Incentive, or Margin for
the following Year, then notice of termination will
be deemed given on such date. In such case the
relevant Call-Off Contract shall terminate on
December 31 of the current Year.
Notices given pursuant to this Sub-section 39.3. are
revocable until and unless the Parties have agreed to
the transition plan described in Sub-section 39.4
below.
39.4. Transition after notice of termination
The Parties shall cooperate fully with one another to
facilitate within the notice periods described above a smooth
transition of the Services from Contractor to NBA or NBA's
designated contractor. To that end the Parties shall meet in
good faith as soon as practicable and in no event no later
than thirty days (30) from the receipt of a notice of
termination to agree to a transition plan which shall take
into account interalia, the items enumerated in Sub-sections
39.5. Throughout the period of notice, the Target, Margin and
Incentives, shall be those in force at the time the notice
period commenced.
39.5. Compensation in the event of termination
Termination of a Call-Off Contract pursuant to Sub-sections
39.3.1 through 39.3.4 shall require that compensation be paid
in the following manner:
39.5.1. In the event of a termination pursuant to
Sub-sections 39.3.1 or 39.3.2 where NBA is the
insolvent or defaulting Party, and 39.3.3, NBA shall
pay to the Contractor (i) Stranded Costs unique to
NBA as defined in Sub-section 39.7.2; (ii) Residual
Value of all assets relating solely to the terminated
Call-Off Contract; (iii) Margins with respect to (i)
and (ii) above; and (iv) payment pur-
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suant to the relevant Call-Off Contract for Services
rendered prior to the termination date.
39.5.2. In the event of a termination pursuant to Sub-section
39.3.1 where the Contractor is the insolvent Party,
NBA shall pay to the Contractor only payment pursuant
to the relevant Call-Off Contract for Services
rendered prior to the termination date.
39.5.3. In the event of a termination pursuant to Sub-section
39.3.2 where the Contractor is the defaulting Party,
NBA shall pay to the Contractor: (i) Stranded Costs
unique to NBA as defined in Sub-section 39.7.2 with
the exception of any early termination costs
associated with Contractor-branded Services; (ii)
Residual Value of all assets relating solely to the
terminated Call-Off Contract as defined in
Sub-section 39.7.4; (iii) Margins with respect to (i)
and (ii) above; and (iv) payment pursuant to the
relevant Call-Off Contract for Services rendered
prior to the termination date.
39.5.4. Notwithstanding the obligations contained in this
Sub-section 39.5, upon receipt of notice of early
termination served pursuant to Section 39.3. the
Contractor shall consult with NBA and give in writing
an estimate of the extent of NBA's exposure for the
foregoing obligations, commitments, claims and
expenses under this Sub-section 39.5 to NBA.
39.5.5. The obligations with respect to payments of the
Residual Value referred to in Sub-sections 39.5.1 and
39.5.2 shall be subject to the ability of the
Contractor to transfer to NBA free of charge the
interests stipulated in Sub-section 39.6.
39.5.6. The obligations with respect to payments of the
Residual Value referred to in Sub-sections 39.5.2 and
39.5.3 shall be subject to the ability of the
Contractor to transfer to NBA free of charge the
interests stipulated in Sub-section 39.6
39.6. Upon termination or expiry of any Call-Off Contract NBA shall
have the right:
39.6.1. Subject to the terms of contracts with and the
agreement of relevant Third Parties and upon where
appropriate making the payment referred to in
Sub-section 39.5, to require by notice the purchase,
transfer, assignment or return to NBA or any Third
Party of all equipment, leases, licenses, contracts
or other assets used exclusively for the provision of
the Services and of hard copy and/or machine readable
copies of all NBA data and information held by the
Contractor pursuant to the provision of
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the Services. NBA shall exercise such rights within
thirty days (30) of the effective date of termination
and the Parties shall undertake to cooperate fully to
facilitate such purchase or transfer as aforesaid
including where required by NBA cooperation with any
Third Party.
39.6.2. Upon reasonable notice, to enter and take possession
of hard copy and/or machine readable copies of all
NBA data and information held by Contractor or to
require the delivery of all such data or information
by any Third Party holding such data or information
on behalf of the Parties.
39.7. For the purposes of this Section 39:
39.7.1. Any right to terminate the Call-Off Contract and to
be compensated in accordance with this Sub-section
39.7.1 may only be exercised in writing and shall be
the sole right or remedy which the Parties may have
except where expressly specified to the contrary.
39.7.2. Stranded Costs in this Section 39 means all costs,
obligations, commitments and claims not otherwise
recoverable (subject to Contractor's duty to
mitigate) that the Contractor may have in good faith
reasonably undertaken or incurred in connection with
the relevant NBA Call-Off Contract including any
additional costs incurred by the Contractor in giving
effect to the agreed transition plan of the Services
unless express provision for the same is made
elsewhere under the relevant NBA Call-Off Contract.
This includes costs related to early termination of
commitments extending beyond the termination date,
subject however to the requirement that Contractor
shall have obtained, in all long term supplier or
sub-contract arrangements, provisions for such early
termination unless otherwise agreed in advance by
NBA.
39.7.3. NBA will not be responsible for any costs or
obligations committed to by the Contractor under this
Framework Agreement and the Call-Off Contract that
goes beyond the end of the current Call-Off Contract
period (including but not limited to depreciation,
contract cancellation penalties and personnel
redeployment penalties) unless NBA has agreed to in
writing, for each occurrence, at their sole
discretion, to accept such long term obligations.
Contractor will endeavor to provide services under
this Framework Agreement and Call-Off Contracts
minimizing the number and amount of long term
obligations affecting NBA.
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39.7.4. Residual Value in this Section 39 is generally
defined in Annex A and includes assets purchased by
the Contractor in order to provide Services to NBA.
In Sub-section 39.5.3, Residual Value is limited to
those assets purchased by the Contractor which: (i)
are located solely on NBA premises, and/or (ii) have
been purchased for the sole purpose of supporting
NBA's unique telecommunications needs.
40. REMEDIES
Any Material Breach by the Contractor to comply with the relevant
Service Level Agreement shall entitle NBA to terminate this Agreement
or a relevant Call-Off Contract under the provisions of Sub-section
39.3.2. Other deviations from the relevant Service Level Agreement
shall entitle NBA to invoke provisions of Sub-section 18.1.3. Failure
of the Contractor to meet the conversion deadline as mutually agreed to
will result in overlapping costs for Network Services which will be
borne by the Contractor. The occurrence of overlapping costs will not
result in any adjustment of a relevant Target.
40.1. NBA and the Contractor shall individually and in addition to
the rights set out in Sub-section 40.1, be entitled if the
failure or breach on the part of the other Party shall amount
to a Material Breach to recover damages from the other Party
in accordance with and subject to the limitations provided for
in Section 29 or at the option of the Party alleging failure
or breach to serve, in addition, a notice of termination in
accordance with Section 39.
40.2. The Parties shall indemnify each other in accordance with the
terms of Section 30 in the event that the Party seeking
indemnification can demonstrate:
40.2.1. That it was induced by the other Party to act in
breach of applicable law in circumstances where the
existence of the alleged breach was brought to the
attention of the other Party prior to the commission
of the breach;
40.2.2. That the claim in respect of which indemnification is
sought relates to the existence of an alleged
partnership debt in circumstances where no
partnership was intended or exists between the
Parties or was confirmed by the Party seeking
indemnification and where the responsibility for the
debt would otherwise have vested solely in the Party
against whom indemnification is sought.
40.3. Indemnification as set out in Sub-section 40.2 shall not be
subject to the limitations set out in Sub-section 29.2.
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41. AUTHORITIES AND GUARANTEES
41.1. The Parties hereby warrant that their respective signatories
to both this Agreement and any Call-Off Contract are duly
authorized individuals acting pursuant to specific authorities
or delegations of authority and that copies of such
authorization or delegation will be produced upon request.
41.2. For the avoidance of doubt, the Contractor acknowledges that
entry by NBA into the terms of this Agreement is subject to
the provisions of Section 2 and that the Contractor's only
recourse in relation to any breach by NBA of the terms of a
Call-Off Contract is against the NBA Associated Company which
was the Party to that Call-Off Contract and that under no
circumstances will any such recourse be sought against NBA in
its capacity as a Party to this Agreement.
42. FORCE MAJEURE
42.1. Neither Party to a Call-Off Contract shall be liable to the
other for any loss or damage which may be suffered by the
other due to any cause beyond either Party's reasonable
control ("force majeure") including without limitation any act
of God, severe Alaska weather conditions limiting travel and
outside work, catastrophic failure or shortage of power
supplies due to chronic unreliability of commercially supplied
power, earthquake, volcanic eruptions, flood, lightning or
fire, strike, lock-out, trade dispute or labor disturbance
(other than within either Party's Organization or any
Associated Company of that Party), the act or omission of
Government, public telecommunications operators (excluding for
the avoidance of doubt the Contractor or an Associated Company
of the Contractor) or other competent authority, war, military
operations, or riot. The Party seeking to rely on force
majeure shall as a condition precedent to the availability of
this defense give full particulars in writing to the other
Party of the facts or circumstances giving rise to force
majeure within three Working Days (3) of the occurrence and
thereafter in respect of successive occurrences and shall
further demonstrate that it has and is taking all reasonable
measures to mitigate the events complained of.
42.2. Notwithstanding the terms of this Section 42 any failure on
the part of the Contractor in any Call-Off Contract to
implement disaster contingency planning and full back-up and
other data safeguards in accordance with the Scope of Work
against natural disaster, fire, sabotage or other similar
occurrence shall not be an event of force majeure.
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42.3. In the event that force majeure shall continue for a period in
excess of three months (3) either Party may give notice of
immediate termination. Termination as aforesaid shall be
deemed to be subject to and on the terms of Sub-sections
39.3.3 and 39.4.
43. HEALTH AND SAFETY
The Parties undertake to comply in full with applicable health and
safety legislation, regulations and procedures in force at the Sites,
such requirements to take precedence over any provisions of Call-Off
Contracts or this Agreement.
44. PUBLICITY
It is accepted and agreed to that neither Party shall publish or permit
to be published either alone or in conjunction with any other person
any information, article, photograph, illustration or any other
material of whatever kind relating to this Agreement or relative to the
Call-Off Contracts or the business of the Parties without prior
reference to and approval in writing from the other Party. Such consent
shall apply to each specific application and relate only to that
application.
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45. NOTICES
45.1. Any notice or other document which may be given by either
Party under this Agreement shall be deemed to have been duly
given if left at or sent by pre-paid recorded delivery post or
facsimile transmission (confirmed by letter sent by pre-paid
recorded delivery post) to each Party's principal or
registered office as set out below as an address to which
notices and other documents may be sent:
NBA: National Bank of Alaska (NBA)
P.O. Box 100600
Anchorage, Alaska 99510-0600
Tel: 907-265-2860
Fax: 907-265-2887
Contact: B. John Shipe
Executive Vice President
Contractor: General Communication, Inc. (GCI)
2550 Denali St.
Suite 1000
Anchorage, Alaska 99503
Tel: 907-265-5600
Fax: 907-265-5574
Contact: Richard A. Whitney, Director
Business Development
45.2. Any such communication shall be deemed to have been made to
the other Party 4 days from the date of posting (if by letter)
and if by facsimile transmission on the day of such
transmission provided by the other Party the original of the
communication is received within 4 days of the date of
transmission.
46. VARIATIONS
No amendment variation or other change to this Agreement shall be valid
unless in writing and signed by both Parties.
47. COMPLIANCE WITH LAWS, REGULATIONS AND ETHICS
47.1. In addition to the obligations in this Agreement and generally
in performing the Services both Parties accept that their
individual conduct shall at all times comply with all laws,
rules and regulations of gov-
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ernment and other bodies having jurisdiction over the area in
which the Services are undertaken.
47.2. The Contractor agrees to at all times to comply with and abide
by the terms of NBA's Policy on Business Conduct and Code of
Ethics as amended from time to time. In the event of any
conflict between NBA's Policy on Business Conduct and Code of
Ethics and the Contractor's own code of ethics, the matter
shall be referred to the Telecommunications Review Board for
resolution subject to the agreed understanding that the best
practice shall prevail.
48. PROFESSIONAL FEES
48.1. All expenses incurred by or on behalf of the Parties,
including all fees of agents, solicitors, accountants and
actuaries employed by either of the Parties in connection with
the negotiation, preparation and execution of this Agreement
and the Call-Off Contracts shall be borne solely by the Party
which incurred them.
48.2. The expenses of the nature set forth in Sub-section 48.1 shall
subject to NBA's prior written approval be reimbursed by NBA
to the Contractor if incurred by the Contractor solely and
directly in the implementation and or execution of a Call-Off
Contract or Transfer Agreement, including those expenses
related to due diligence in connection with the Transfer
Agreement and such expenses shall not be deemed to be part of
the Actual Costs.
49. SEVERABILITY
If any provision of this Agreement or any Call-Off Contract shall be
found by any court or administrative body of competent jurisdiction to
be invalid or unenforceable the invalidity or unenforceability of such
provision shall not affect the other provisions of this Agreement or
the relevant Call-Off Contract and all provisions not affected by such
invalidity or unenforceability shall remain in full force and effect.
The Parties hereby agree to attempt to substitute for any invalid or
unenforceable provision a valid and enforceable provision which
achieves to the greatest extent possible the economic, legal and
commercial objectives of the invalid or unenforceable provision.
50. APPLICABLE LAW AND JURISDICTION
This Agreement shall, to the extent that any aspect or matter fails to
be interpreted, conformed or adjudicated upon by the parties
themselves, be dealt with in accordance with the laws of the United
States and the State of Alaska.
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Any controversy or claim arising out of or relating to this Agreement,
or breach thereof, shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association, such arbitration to take place in Anchorage, Alaska and
judgment upon the award rendered by the Arbitrator(s) may be entered in
any Court having jurisdiction thereof.
IN WITNESS WHEREOF the Parties hereto have by duly authorized
representatives set their hands the day and year first above
written.
for and on behalf of }
National Bank of Alaska (NBA) }
B. John Shipe
Executive Vice President
for and on behalf of }
General Communication, Inc. (GCI) }
Richard A. Whitney
Director, Business Development
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ANNEX A: GLOSSARY OF DEFINITIONS
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"Access Code" means a code or protocol whereby an Authorized User is permitted
access to the Facilities;
"Actual Costs" means the Direct Costs, Sub-Contractor Costs and Network Services
Costs actually incurred by the Contractor in respect of any relevant period;
"Applications Software" means the applications software details of which are set
out in the Transfer Agreement or a Call-Off Contract, which may be required to
be run by the Contractor to provide the Services, as may be modified, enhanced,
added to or replaced during the term of the Contract pursuant to the terms
hereof and such further programs as may be developed on behalf of NBA pursuant
to the terms hereof;
"Associated Company" means any subsidiary of either Party hereto or their
ultimate holding company or any subsidiary thereof;
"Authorized User" means a person or entity who or which is an Associated Company
of NBA or is a person who otherwise at the date hereof is designated by NBA as
being associated with NBA or is a person or entity who subsequent to the date
hereof becomes associated with NBA and which NBA and the Contractor agree should
be a person or entity authorized to use the Services in accordance with and
subject to the terms of the Framework Agreement and a Call-Off Contract;
"Call-Off Contract" means an agreement in the nature of the model contract
contained in Annex D entered into between NBA and the Contractor as may
negotiated and mutually agreed;
"Charges" means those charges computed in accordance with the methodology
contained in the Framework Agreement or the methodology for calculating the
charges for the provision of the Services as may be varied from time to time
upon mutual agreement;
"Commencement Date" means the date specified in the Call-Off Contract for the
commencement of the Services to NBA;
"Continuing Contracts" means relevant contracts between NBA and Third Parties
necessary for the provision of services comparable to the Services prior to the
Transfer Date;
"Contract" means the Call-Off Contract;
"Contractor Equipment" means the capital assets including computers,
telecommunications and peripheral equipment as identified in the Transfer
Agreement or the Call-Off Contract as may be extended, added to or replaced
during the term of a Call-Off Contract which are owned or controlled by the
Contractor and used by the Contractor or NBA in the provision of the Services;
"Data" means all data processed, held or conveyed by the Contractor on behalf of
NBA by means of the Facilities as part of the Services;
"Direct Costs" means costs as defined in Sub-section 16.1.1;
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"Expected Cost of Operation (CoOE)" is the sum of all 1995 NBA
telecommunications costs plus expected 1996 cost adjustments resulting from
changes in scope of work and service levels for which the Contractor is
expressly responsible and can exercise cost management as determined by a Due
Diligence Audit.
"Facilities" means the hardware, software and Network necessary for the
provision of the Services;
"HR" means human resources;
"Incentive" means payment calculated as in Section 18;
"Information Records" means all the data, information and records contained
and/or stored in the literature, documents and computer systems, including
without limitation all records of transactions, bills, invoices, statements and
similar documents whether in hard copy, machine readable or other form which NBA
uses as at the date hereof which are described in a Call-Off Contract and such
other data and information forming part of or relating to the equipment and
Third Party Contracts as the proper performance by the Contractor of its
obligations under the Call-Off Contract shall require;
"IS" means information services and associated and derivative products and
services;
"Major Change" shall be as defined in Section 8;
"Margin" means an amount determined by a percentage increase to be applied to
the Direct Costs of the Target for a given Year as may be varied in accordance
with the terms of Section 17 of this Agreement;
Material Default" occurs, but is not limited to the occurrence of one or more of
the following: (i) significant or chronic deficiency by the Contractor in
providing Services which substantially compromises a Service Level Agreement,
(ii) the Contractor's or the Contractor's and M&I's failure to meet conversion
deadlines by in excess of 120 days, (iii) either Party's unauthorized disclosure
of confidential or other financial/customer data, (iv) either Party's violation
of the other Party's network/data security, or (v) Major Changes made by NBA
which are not in compliance with Section 8.
"Material Breach" means Material Default as defined.
"Network" means the telecommunications equipment and internal cabling, private
leased circuits and associated software more particularly described in a
Call-Off Contract as may be modified pursuant to the terms hereof;
"NBA Business" means any relevant and designated business activity maintained as
such and then existing within NBA which has responsibility for or interest
Information Services or Telecommunications;
"NBA" means NBA and all Associated Companies of NBA;
"Network Services" means certain communication services to be provided by the
Contractor pursuant to a Call-Off Contract;
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"Operational Change Control Procedures" means the written documentation defining
the procedures to be used in making any change to the Services;
"Partner Relations Manager (PRM)" means the NBA senior manager responsible for
direct liaison with the Contractor's management;
"PSTN" means Public Service Telephone Network;
"Quarter" means a full or partial calendar quarter commencing on 1st January,
1st April, 1st July and 1st October in each Year, the first Quarter or part
thereof to commence on the Commencement Date and the last Quarter ending on the
termination date;
"Representative" means a member of the Telecommunications Review Board;
"Residual Value" means the non-depreciated book value or the remaining lease
obligations related to Contractor Equipment;
"Risk/Reward Incentives" means payments made by NBA or the Contractor as defined
in Section 18;
"Scope of Work" means the specific description of the Services as set out in
Schedule 1 to the Call-Off Contract;
"Secondment" means temporary assignment of an employee of one party to another
party with the employment status of the employee remaining unaffected;
"Service Description" means the Scope of Work and the Service Levels;
"Service Level Agreement" means the quantification of acceptable NBA Service
Levels based upon a defined Scope of Work which is included in a Call-Off
Contract;
"Service Levels" means the target levels of service to be achieved by the
Contractor in providing the Services as set out in Schedule 2 to the Call-Off
Contract;
"Services" means the services to be provided by the Contractor to NBA as more
particularly described in the Scope of Work;
"Shared Network Services" means those voice, data, video, messaging and other
communication services which are delivered by the Contractor over the
Contractor's technology platform or the technology platform of an Associated
Company of the Contractor, the infrastructure of which technology platform
jointly supports the provision of the Services hereunder and the provision of
similar services to Third Parties;
"Software" means the software used in the provision of the Services and includes
System Software and the Applications Software;
"Stranded Costs" means any cost as defined in Sub-section 39.7.2;
"Sub-Contractor" means a Third Party in a contractual relationship with the
Contractor providing certain services which are material and necessary to the
scope of work and for the avoidance of doubt, Sub-Contractor shall not mean a
supplier of goods;
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"System Software" means the operating systems software, details of which are set
out in the Transfer Agreement or the Call-Off Contract, required to be run and
supplied by the Contractor to provide the Software platform used in the
provision of the Services, as may be modified, enhanced, added to or replaced
during the term of the Call-Off Contract pursuant to the terms thereof;
"Target" in 1996 means the CoOE less ******** or ********, whichever is greater.
In 1997 and beyond, "Target" means: (i) the sum of the Actual Costs, Margin and
Risk/Reward Incentives from the previous year's performance; plus (ii) the
mutually agreed to dollar value of increases or decreases in scope of work and
service levels; plus (iii) other mutually agreed to adjustments, such as
inflation or COLA;
"Telecommunications Review Board" means the Board established pursuant to the
Framework Agreement;
"Third Party Contracts" means those contracts between the Contractor or NBA and
Third Parties necessary to enable the Contractor to provide the Services,
including but not limited to those contracts for the supply of Software,
Contractor Equipment and other services;
"Third Party" means a person other than NBA, an Authorized User or the
Contractor;
"Transfer Date" means the date specified in the Transfer Agreement;
"Transfer Equipment" means the equipment and furniture listed in Schedule 1 of
the Transfer Agreement located at the (Sites/locations specified therein) which
are to be transferred to the Contractor;
"Working Day" means days upon which Banks are normally open for business in the
jurisdiction where the Contract is executed ;
"Year" means each calendar year during the term of each Call-Off Contract, but
the first year will run from the Commencement Date to 31st December of such
year, and the last Year shall end at the date of the termination.
Except where the context otherwise requires, words denoting the singular include
the plural and vice versa; words denoting any gender include all genders; and
words denoting persons include firms and corporations and vice versa;
Unless otherwise stated, a reference to a Section, or Schedule is a reference to
a section or schedule to this Agreement;
Section headings are for ease of reference only and do not affect the
construction of this Agreement.
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ANNEX B: SPECIMENS
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1996 TARGET SPECIMEN
1. Expected Cost of Operations (CoOE) ---------
a. 1995 Annualized Costs ---------
b. 1996 Expected Cost Increases ---------
c. Total (1a + 1b) --------
2. Percent of CoOE or Guarantee
a. Guarantee ********
b. ******** of CoOE ---------
c. Greater of 2a or 2b ---------
3. Target (1c-2c) ---------
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1997 - 2001 TARGET SPECIMEN
1. Previous Year Annual Costs ---------
2. Previous Year Margin ---------
3. Previous Year Risk/Reward Incentive ---------
4. Scope of Work Adjustments
a. Increases ---------
b. Decreases ---------
c. Total (4a - 4b) --------
5. Service Level Adjustments
a. Increases ---------
b. Decreases ---------
c. Total (5a - 5b) ---------
6. Other Mutually Agreed To Adjustments
a. Increases ---------
b. Decreases ---------
c. Total (6a - 6b) ---------
7. Target (1 + 2 + 3 + 4c + 5c + 6c) ---------
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1996 INCENTIVE SPECIMEN
1. Target ---------
2. NBA Invoiced Amounts
a. Actual Costs ---------
b. Margin ---------
c. Total (2a + 2b) ---------
3. Under-run/Over-run (1 - 2c) ---------
4. Risk/Reward Basis*
a. Risk Basis (#3 less than 0) ---------
b. Reward Basis (#3 greater than 0)
* Subject to Provisions of Framework Agreement, Section 18.
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INVOICE SPECIMEN
Month of
1. Invoice Summary Current YTD
A. Direct Costs
B. Margin (Direct Costs)
C. Sub-contractor Costs
D. Margin (Sub-contractor Costs)
E. Network Services
i. Network Management
ii. Long Distance
iii. Transport
2. Current Month Detail
A. Direct Costs
B. Margin (Direct Costs)
C. Sub-contractor Costs
D. Margin (Sub-contractor Costs)
E. Network Services
i. Network Management
ii. Long Distance
iii. Transport
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ANNEX C: MINIMUM CONDITIONS OF SATISFACTION
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1. GENERAL
1.1. Mutual Benefit
The relationship shall be to the benefit and complete
satisfaction of all Parties, relying on and resulting in the
full and enthusiastic participation of all Parties in
achieving the agreed to outcome.
1.2. Trust and Openness
The relationship shall be conducted in a spirit of trust and
openness so that information on any matter having a material
impact on the relationships between the Parties shall to the
fullest extreme possible be disclosed to each Party.
1.3. Ownership of Actions
Each aspect of the relationship shall be assigned to a
nominated person or persons within each Party who shall be
fully empowered and accountable for that aspect and who will
make commercially reasonable efforts to ensure its successful
outcome.
1.4. Effectiveness of Decision
The Parties shall seek to maximize the effectiveness of
decisions by minimizing interfaces and shortening decision
routes.
1.5. Addressing Risk
Risks and concerns of either Party shall be shared and
addressed by both Parties with the aim of eliminating, or if
that is impossible to quantify as far as possible, and adopt
the most pragmatic cost effective way of meeting them.
1.6. Withdrawal
It is recognized by the Parties that circumstances may change
such that a Party might wish to withdraw in which event the
other Parties shall agree to fair reasonable and timely
procedures to enable this.
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2. BASIC SERVICE ELEMENTS
2.1. Minimum Services To Be Provided
2.1.1. Network Design and Deployment
2.1.1.1. Design and implement 52+ NBA LANs;
2.1.1.2. Design and implement a statewide wide area
network connecting all branch LANs and
other data, voice and video networks;
2.1.1.3. Design and implement a diversely
routed/resilient "backbone network"
connection between NBA's data network
collection point in Anchorage and the
M&I's facilities;
2.1.1.4. Design and develop a business case for an
inter-branch voice over frame relay
solution;
2.1.1.5. Design, business case and implement a
Bank-wide voice communications solution;
2.1.1.6. Change management and consulting
engineering to support NBA's
telecommunications evolution.
2.1.2. Network Operation & Customer Support
2.1.2.1. Wide area data, voice and video network
M&C/management;
2.1.2.2. LAN management (through client/server
NICs);
2.1.2.3. 7/24 customer support coverage for all
identified Services work orders and
trouble tickets;
2.1.2.4. Change management enterprise network
engineering and analysis which includes
procurement and installation of all
components;
2.1.2.5. PBX and key system maintenance/management.
2.1.2.6. Procurement and installation of telecom
equipment.
2.1.3. Technical Services
2.1.3.1. Technical hardware maintenance and asset
management;
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2.1.3.2. Move, Add, Change (MAC) support for
telephony PBX/key system station
equipment;
2.1.3.3. MAC for all PC/LAN hardware (servers,
clients, hubs and PDS);
2.1.3.4. Switched video conference support between
NBA, the IS provider and other locations
(both hardware and switched video
service).
2.1.3.5. Client desktop operating system support.
2.1.4. Common Carrier Services
2.1.4.1. Operate a Bank-wide voice communications
service comprised of local loop, private
line and other MTS services;
2.1.4.2. Operate a statewide wide area network
connecting all branch LANs comprised of
private leased lines or private/public
frame relay service or comparable
technologies.
2.2. Service Level Agreement
The Contractor shall ensure that service levels for all of the
services defined in Sub-section 2.1 shall be delivered at
NBA's current levels of satisfaction. Specific Service Level
Agreements will be developed and included in all Call-off
Contracts. Minimum Service Levels consistent with the
following will be maintained:
SERVICE LEVEL GOALS:
----------------------------------------------------------------------------------------
ICRE Release 96.00%
ATM Availability 98.00%
Option, Plus & VISA Availability 98.50%
Production Processing and On-Line Availability 98.00%
Report Distribution 98.00%
Network Response Time - In-town Less than 2.0 seconds
Network Response Time - Out-of-town Less than 4.0 seconds
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2.3. Targets
The Contractor commits to deliver the services defined in
Sub-section 2.1 in accordance with the following:
2.3.1. In 1996, NBA and the Contractor shall in respect of
the Services to be provided agree to an overall
Target. The Contractor shall provide the Services at
a total charge to NBA which shall enable NBA to
achieve its expectation of savings. The total charge
to NBA, or Target, includes the Contractor's Expected
Cost of Operations (CoOE) as defined in Annex A less
******** , or ********, whichever is greater.
2.3.2. The resulting Target will be included in the first
year Call-off Contract.
2.3.3. In 1997 and beyond, NBA and the Contractor shall in
respect of the Services to be provided agree to an
overall Target. The Contractor shall provide the
Services at a total charge to NBA which shall enable
NBA to continue to achieve its expectations of
savings. Under the terms of this Sub-section, the
Target includes: (i) the sum of the Actual Costs,
Margin and Risk/Reward Incentives from the previous
Year's performance; (ii) the mutually agreed to
dollar value of increases or decreases in Scope of
Work and Service Levels; plus (iii) other mutually
agreed to adjustments, such as inflation or COLA.
2.3.4. Subsequent year Targets will be established jointly
by NBA and the Contractor and will be included in
those Call-off Contracts.
3. QUALITY
3.1. Continuous Improvement
The Contractor shall commit to achieving continuous
improvement in cost effectiveness, Service quality and
performance levels.
3.2. Service Quality
The prime measure of Service quality will be continuous
satisfaction of NBA.
3.3. Benefit from Developments
The Contractor shall ensure that best practices in the
industry are applied in delivering "best-in-class" services to
NBA. Improved tech-
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nologies, processes and methodologies will be quickly
transferred and applied to the Services as soon as it is
economically beneficial to do so.
3.4. Standards
The Parties shall compare respective policies, technical
standards and codes of practice with a view to agreeing to a
common code that will reflect best practice relevant to the
objectives of the Framework Agreement.
4. FLEXIBILITY FOR CHANGE
4.1. Change
The Parties should be prepared to meet change in any form and
to any extent and will adopt appropriate change control and
review procedures to facilitate change, or in the ultimate
case to enable equitable termination or withdrawal.
4.2. Goal Setting
From time to time the Parties will agree to objectives and
performance targets. These agreed to objectives and targets
will themselves be subject to review as business conditions
and requirements change.
4.3. Asset Ownership
Arrangements should be agreed to such that ownership of assets
including premises, infrastructure, equipment, software and
procedures presents the minimum of constraint to the
performance of the scope of activities and Services agreed.
5. PROCUREMENT
5.1. Procurement Ethics
The Contractor shall adhere to codes of conduct and
procurement ethics that NBA would use if procuring direct.
5.2. Sub-Contracts
Wherever possible the Contractor will have relationships with
its suppliers and Sub-contractors that are in accordance with
its relationship with NBA.
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6. HUMAN RELATIONS AND PERSONNEL
6.1. HR Policy
The Contractor shall have human resource policies and put them
into practice that demonstrate sympathy with employees'
circumstances and aspirations and provide career development,
training, leave and benefits to a standard commensurate with
ensuring continued Service quality.
6.2. HR Transition
During the transitional period the Contractor shall work
closely with NBA and strive to ensure that all employees of
all Parties are treated fairly and with respect and that there
is no risk to Service quality through staff dissatisfaction or
loss of morale.
6.3. Employment of Former NBA Employees
Where former NBA personnel join the Contractor's Organization,
then the Contractor will commit to maintaining the high
standards of respect and observance of family values existing
in NBA. The transition of personnel will be managed through a
process of planning and consultation involving the individuals
to be affected in advance as appropriate and as agreed to by
NBA management. Due regard will be given to the individual's
personal development plans.
6.4. Contractor's Personnel
The Contractor's personnel providing the Service will behave
in a fashion generally consistent with that which would be
expected of NBA employees performing equivalent duties and
will give precedence to cost effectiveness and customers'
requirements accordingly.
6.5. Secondment of Personnel
The Parties shall commit to Secondment of individuals as
appropriate from one party to another for the purposes of
personal development, or the transfer of know-how or training.
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7. COSTS
7.1. Value for Money
The Contractor should always be able to demonstrate that NBA
is receiving good value for money on the Services through
appropriate benchmarking and monitoring, whilst the Contractor
maintains a reasonable rate of return.
7.2. Budgets
Operating budgets may be drawn up by NBA and the Contractor.
The keynote of such budgets shall be efficiency and cost
effectiveness. A review mechanism shall be instituted by the
Parties to ensure timely response to agreed to changes to the
Service.
7.3. Most Favored Nations Pricing and Tariffs
Network Services will be delivered based upon filed APUC/FCC
tariffs or via Most Favored Nations pricing.
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ANNEX D: MODEL CALL-OFF CONTRACT AND SCHEDULES
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TABLE OF CONTENTS
SECTION PAGE
PREAMBLE...................................................................................................
1. DEFINITIONS.................................................................................................70
2. STATUS......................................................................................................70
3. PROVISION OF SERVICES.......................................................................................71
4. DURATION....................................................................................................71
5. INVOICES AND PAYMENT........................................................................................71
6. MANAGEMENT ORGANIZATION.....................................................................................72
7. NO WAIVER...................................................................................................72
8. SERVICE OF NOTICE...........................................................................................73
9. FURTHER ASSURANCES..........................................................................................73
10. GOVERNING LAW...............................................................................................74
11. INVALIDITY..................................................................................................74
12. ADDITIONAL TERMS AND CONDITIONS.............................................................................74
13. CONDITION PRECEDENT.........................................................................................74
SCHEDULE 1: SCOPE OF WORK..............................................................................75
SCHEDULE 2: SERVICE LEVELS.............................................................................76
SCHEDULE 3: CHARGES AND BILLING INFORMATION............................................................77
SCHEDULE 4: NBA AND CONTRACTOR PREMISES................................................................78
SCHEDULE 5: INFORMATION RECORDS........................................................................79
SCHEDULE 6: CONFIDENTIALITY LETTER.....................................................................80
SCHEDULE 7: ADDITIONAL TERMS AND CONDITIONS............................................................81
SCHEDULE 8: NBA OBLIGATIONS............................................................................82
SCHEDULE 9: LONG TERM CONTRACTS........................................................................83
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MODEL CALL-OFF CONTRACT
THIS CONTRACT is made the day of 199[ ].
BETWEEN
National Bank of Alaska whose registered offices are located at 301 West
Northern Lights Blvd., Anchorage, Alaska 99503 (hereafter, "NBA") and General
Communication, Inc. (GCI) whose registered offices are located at 2550 Denali
St., Suite 1000, Anchorage, Alaska 99503 (hereafter, "The Contractor")
WHEREAS
A. By a Framework Agreement dated [ ] 1995 entered into between
NBA and the Contractor terms were agreed to whereby the
Contractor or an Associated Company of the Contractor would
provide or ensure the provision of telecommunication services
to be available to NBA and other NBA Associated Companies in
substitution for the telecommunication services which were
immediately prior to the execution of this Contract either
provided from within NBA or acquired from Third Party
contractors;
B. NBA now wishes the Contractor to provide the Services and the
Contractor is able to provide the Services on the terms set
out below in this Contract.
IT IS THEREFORE AGREED as follows:
1. DEFINITIONS
1.1. A glossary of Definitions which shall apply to the terms used
in this Contract appears as Annex A to the Framework Agreement
and shall be deemed to be incorporated in this Contract.
1.2. In the event of conflict between this Contract and the
Framework Agreement, the order of precedence shall be this
Contract and the Framework Agreement.
2. STATUS
2.1. This Contract may only be modified if such modification is in
writing and signed by a duly authorized representative of each
Party.
2.2. The following documents shall together form part of and shall
be read with this Contract and shall represent the entire
understanding be-
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tween the Parties in relation to the subject matter hereof and
supersede all previous agreements and representations made by
either Party, whether oral or written.
2.2.1. The Framework Agreement
2.2.2. The Transfer Agreement
2.2.3. The Schedules:
Schedule 1 Scope of Work
Schedule 2 Service Levels
Schedule 3 Charges and Billing Information
Schedule 4 NBA and Contractor Premises
Schedule 5 Information Records
Schedule 6 Confidentiality Letter
Schedule 7 Additional Terms and Conditions
Schedule 8 NBA Obligations
Schedule 9 Long Term Contracts
3. PROVISION OF SERVICES
The Contractor shall perform the Services in accordance with this
Contract.
4. DURATION
The Services shall commence at hours on (Commencement
Date) and shall continue until unless extended by mutual
agreement or subject to earlier termination.
5. INVOICES AND PAYMENT
5.1. In consideration of the provision of the Services NBA shall
pay to the Contractor the Charges as provided for in Schedule
3.
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5.2. The invoicing address shall be:
General Communication, Inc. (GCI)
Accounts Payable Department
2550 Denali St.
Suite 900
Anchorage, Alaska 99503
Tel: 907-265-5600
Fax: 907-265-5574
Contact: Richard A. Whitney
Director, Business Development
5.3. The Contractor shall render invoices to NBA at the intervals
and in the manner specified in Section 21 of the Framework
Agreement.
6. MANAGEMENT ORGANIZATION
6.1. The NBA Partner Relations Manager shall be B. John Shipe,
Executive Vice President, (907) 265-2860.
6.2. The Contractor Representative shall be Richard A. Whitney,
Director, Business Development, (907) 265-5301.
7. NO WAIVER
Failure by either Party to exercise or enforce any right conferred by
the Contract shall not be deemed to be a waiver of any such right nor
operate so as to bar the exercise or enforcement thereof or of any
other right on any other occasion.
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8. SERVICE OF NOTICE
8.1. Any notice or other document which may be given by either
Party under the Contract shall be deemed to have been duly
given if left at or sent by pre-paid recorded delivery post or
facsimile transmission (confirmed by letter sent by pre-paid
recorded delivery post) to each Party's principal or
registered office as set out below as an address to which
notices, invoices and other documents may be sent:
NBA: National Bank of Alaska (NBA)
P.O. Box 100600
Anchorage, Alaska 99510-0600
Tel: 907-265-2860
Fax: 907-265-2887
Contact: B. John Shipe
Executive Vice President
Contractor: General Communication, Inc. (GCI)
2550 Denali St.
Suite 1000
Anchorage, Alaska 99503
Tel: 907-265-5600
Fax: 907-265-5574
Contact: Richard A. Whitney, Director
Business Development
8.2. Any such communication shall be deemed to have been made to
the other Party four days (4) from the date of posting (if by
letter) and if by facsimile transmission on the day of such
transmission provided the original of the communication is
received by the other Party within 4 days of the date of
transmission.
9. FURTHER ASSURANCES
The Contractor and NBA shall use all reasonable endeavors respectively
to ensure that any Third Party necessary for the performance of the
Services shall do, execute and perform all such further deeds,
documents, assurances, acts and things as either of the Parties hereto
may reasonably require by notice in writing to any other party to carry
the provision of the Contract into full force and effect.
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10. GOVERNING LAW
This Contract shall, to the extent that any aspect or matter fails to
be interpreted, conformed or adjudicated upon by the parties
themselves, be dealt with in accordance with the laws of the United
States and the State of Alaska. Any controversy or claim arising out of
or relating to this Agreement, or breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, such arbitration to take place in
Anchorage, Alaska and judgment upon the award rendered by the
Arbitrator(s) may be entered in any Court having jurisdiction thereof.
11. INVALIDITY
If any term or provision in the Contract shall in whole or in part be
held to any extent to be illegal or unenforceable under any enactment
or rule of law, that term or provision or part shall to that extent be
deemed not to form part of the Contract and the enforceability of the
remainder of the Contract shall not be affected.
12. ADDITIONAL TERMS AND CONDITIONS
Additional terms and conditions to the Framework Agreement terms and to
this Contract are set out in Schedule 7.
13. CONDITION PRECEDENT
It is a condition of this Contract that NBA and the Contractor execute
a Transfer Agreement on the Commencement Date.
IN WITNESS WHEREOF the Parties hereto have by duly authorized
representatives set their hands the day and year first above
written.
for and on behalf of }
National Bank of Alaska (NBA) }
for and on behalf of }
General Communication, Inc. (GCI) }
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SCHEDULE 1: SCOPE OF WORK
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SCHEDULE 2: SERVICE LEVELS
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SCHEDULE 3: CHARGES AND BILLING INFORMATION
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SCHEDULE 4: NBA AND CONTRACTOR PREMISES
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SCHEDULE 5: INFORMATION RECORDS
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SCHEDULE 6: CONFIDENTIALITY LETTER
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SCHEDULE 7: ADDITIONAL TERMS AND CONDITIONS
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SCHEDULE 8: NBA OBLIGATIONS
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SCHEDULE 9: LONG TERM CONTRACTS
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ANNEX E: MODEL TRANSFER AGREEMENT
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TABLE OF CONTENTS
SECTION PAGE
1. INTERPRETATION..............................................................................................86
2. CONDITION PRECEDENT.........................................................................................87
3. AGREEMENT FOR SALE AND TRANSFER.............................................................................87
4. TRANSFER CONSIDERATION......................................................................................88
5. COMPLETION..................................................................................................88
6. CONTINUING CONTRACTS........................................................................................89
7. WARRANTIES..................................................................................................90
8. NOTICES.....................................................................................................91
9. MISCELLANEOUS...............................................................................................91
10. GOVERNING LAW...............................................................................................92
SCHEDULE 1: THE TRANSFER EQUIPMENT.....................................................................93
SCHEDULE 2: THE TRANSFERRED SOFTWARE...................................................................94
SCHEDULE 3: CONTINUING CONTRACTS.......................................................................95
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MODEL TRANSFER AGREEMENT
THIS CONTRACT is made the day of 199[ ].
BETWEEN
National Bank of Alaska whose registered offices are located at 301 West
Northern Lights Blvd., Anchorage, Alaska 99503 (hereafter, "NBA") and General
Communication, Inc. (GCI) whose registered offices are located at 2550 Denali
St., Suite 1000, Anchorage, Alaska 99503 (hereafter, "The Contractor")
WHEREAS
A. NBA owns and operates its own computer and data processing
facilities and telecommunications network/facilities used for
the provision of Information Services (IS), including
telecommunications services.
B. NBA has agreed to transfer to the Contractor certain assets
relating to such facilities and used in the provision of such
facilities on the terms set out in this Transfer Agreement.
C. The Contractor has agreed to run the telecommunication
facilities in accordance with the terms of an outsourcing
agreement of even date herewith made between NBA and the
Contractor (the "Call-Off Contract").
IT IS THEREFORE AGREED as follows:
1. INTERPRETATION
1.1. Unless otherwise stated herein capitalized words and phrases
used in this Transfer Agreement shall have the same meanings
as are ascribed to them in a glossary of definitions appended
to the Framework Agreement as Annex A.
1.2. In the event of conflict between this Agreement and the
Call-Off Contract or the Framework Agreement, the order of
precedence shall be this Agreement, the Call-Off Contract and
the Framework Agreement.
1.3. This Agreement may only be modified if such modification is in
writing and signed by a duly authorized representative of each
Party.
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1.4. The following documents shall together form part of and shall
be read with this Agreement and shall represent the entire
understanding between the Parties in relation to the subject
matter hereof and supersede all previous agreements and
representations made by either Party, whether oral or written.
1.4.1. The Framework Agreement
1.4.2. The Call-Off Contract
1.4.3. The Schedules:
Schedule 1 The Transfer Equipment
Schedule 2 The transferred Software
Schedule 3 The Continuing Contracts
2. CONDITION PRECEDENT
2.1. It is a condition of this Transfer Agreement that the
Contractor and NBA execute the Call-Off Contract on the date
hereof.
2.2. If the condition precedent referred to in Sub-Clause 2.1 is
not satisfied the Parties shall endeavor to cancel or reverse
all (if any) transfers of Equipment, Software, leases,
Continuing Contracts and other assets either contemplated or
executed with the intent of restoring both Parties to their
respective position and status as immediately prior to the
execution of this Transfer Agreement.
3. AGREEMENT FOR SALE AND TRANSFER
3.1. Subject to the terms and conditions of this Transfer
Agreement, NBA agrees to sell and/or transfer and the
Contractor agrees to purchase or accept (as appropriate) on
the date of sale or transfer the following:
3.1.1. The Transfer Equipment as itemized and at the prices
listed in Schedule 1; and
3.1.2. Insofar as NBA is able to assign or novate the same
pursuant to Clause 6 the full benefit and burden of
the Continuing Contracts referred to in Schedule 3
and Software referred to in Schedule 2.
3.1.3. Subject to the provisions of this Transfer Agreement
there shall be excluded from the sale hereby agreed
all liabilities of whatsoever nature owing or
incurred by NBA whether relating to any
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of the Transfer Equipment, transferred Software,
Leases or Continuing Contracts or otherwise up to and
including the effective date or dates (as
appropriate) when individual assets are transferred
or sold to the Contractor ("Transfer Date(s") and NBA
shall indemnify the Contractor against any liability,
claims, costs and expenses up to the Transfer Date(s)
that the Contractor may incur in respect thereof.
3.1.4. The Contractor shall indemnify NBA in respect of any
liability, claims, costs and expenses that the
Contractor or NBA may incur whether relating to any
of the Equipment, Software, Leases or Continuing
Contracts or otherwise which arise, are arising or
are incurred subsequent to the Transfer Date(s).
4. TRANSFER CONSIDERATION
4.1. As consideration for the agreement by NBA to transfer the
assets to the Contractor as referred to in Clause 3 above, the
Contractor hereby agrees to pay NBA the amounts shown in the
relevant Schedules which shall be paid in full on the Transfer
Date(s).
4.2. It is hereby agreed that the sums to be paid pursuant to this
Clause 4 are exclusive of and expressed without the addition
of [value added tax/local sales tax], which shall be paid by
the Contractor to NBA at the applicable rate in addition to
the sum payable in Clause 4.1, subject to the production by
NBA of a valid tax invoice giving the requisite details of the
taxable supply.
5. COMPLETION
5.1. Completion of the sale and transfer hereunder shall take place
at the offices of NBA.
5.2. Upon completion NBA shall deliver to the Contractor:
5.2.1. Possession of all the Transfer Equipment capable of
passing by delivery;
5.2.2. Executed documentation sufficient for the purposes of
transferring title to any Transfer Equipment not
capable of passing into the ownership of the
Contractor by delivery;
5.2.3. Copies of documentation relating to the Continuing
Contracts including service records, operating
manuals and relevant technical information.
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5.3. Upon Completion, the Contractor shall deliver to NBA the sum
specified in Clause 4.1.
5.4. Risk in and title to the Transfer Equipment shall be deemed to
have passed to the Contractor with effect from the Transfer
Date(s).
5.5. In respect of assets where risk and title shall not be capable
of passing by delivery, NBA shall grant to the Contractor a
license to use such assets including Software, provided that
NBA is contractually entitled to make such grant and provided
also that any such grant shall be made subject to all rights,
liabilities and obligations to which NBA is itself subject
under any agreement relating to such asset.
6. CONTINUING CONTRACTS
6.1. As soon as reasonably practicable after the Commencement Date,
NBA shall to the extent it is reasonably able procure at no
expense to the Contractor any Third Party authorization
necessary for the Contractor to enjoy the use and the benefit
of Continuing Contracts between NBA and other contractors
which will notwithstanding the entry into the Contract be
required for the purposes of the Services. Such authorization
may including the transfer, assignment or novation of the
Continuing Contracts in favor of the Contractor. The
Contractor shall use reasonable endeavors to assist NBA in
such matters.
6.2. NBA shall to the extent it is reasonable to do permit the
Contractor to use and have the benefit of the subject of each
of the Continuing Contracts in accordance with the terms of
that contract in the period from the Commencement Date to the
relevant Transfer Date(s). The Contractor shall observe and
perform the provisions of the Continuing Contracts in all
material respects and subject thereto NBA shall likewise
observe and perform such provisions.
6.3. Where it shall not prove possible, be permitted or lawful to
effect a transfer, assignment or novation of a Continuing
Contract to the Contractor, NBA and the Contractor shall
cooperate-operate in making such reasonable alternative
arrangements which shall be in accordance with the terms of
such Continuing Contract as may best achieve the objectives of
the Contract in accordance with the following:
6.3.1. NBA shall appoint the Contractor as its agent to
liaise and deal with the relevant Continuing Contract
and to perform all NBA's obligations thereunder, save
for those express obligations the Parties agree in
writing shall continue to be performed by NBA (for
the purpose of this Clause "NBA Obligations"); and
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6.3.2. If NBA, as part of the NBA Obligations, agrees to pay
all or part of the costs due to the Third Party under
the relevant Continuing Contract, then unless
otherwise agreed, the Contractor shall receive and
verify invoices thereunder and shall notify NBA in a
timely fashion of sums the Contractor approves for
payment by NBA and of the Third Parties to whom such
payment should be made; and
6.3.3. In its capacity as agent, the Contractor shall be
responsible for observing and obeying all the
obligations to be performed by NBA thereunder
excluding the NBA Obligations.
6.4. NBA and the Contractor shall promptly settle between
themselves any pre-payment or accrual relating to the
Continuing Contracts on the basis that all expenses under such
contracts attributable to any period prior to the Transfer
Date(s) shall be borne by NBA and all expenses attributable to
the period thereafter shall be borne by the Contractor.
7. WARRANTIES
The Contractor shall with the assistance of NBA satisfy itself with
regard to the condition of the Equipment and all other assets
transferred pursuant to this Transfer Agreement including fitness for
purpose and the rights of the Contractor to own and operate the
Equipment and other assets during the provision of the Services.
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8. NOTICES
8.1. Any notice or other document which may be given by either
Party under this Transfer Agreement shall be deemed to have
been duly given if left at or sent by pre-paid recorded
delivery post or facsimile transmission (confirmed by letter
sent by pre-paid recorded delivery post) to each Party's
principal or registered office as set out below as an address
to which notices, invoices and other documents may be sent:
NBA: National Bank of Alaska (NBA)
P.O. Box 100600
Anchorage, Alaska 99510-0600
Tel: 907-265-2860
Fax: 907-265-2887
Contact: B. John Shipe
Executive Vice President
Contractor: General Communication, Inc. (GCI)
2550 Denali St.
Suite 1000
Anchorage, Alaska 99503
Tel: 907-265-5600
Fax: 907-265-5574
Contact: Richard A. Whitney, Director
Business Development
8.2. Any such communication shall be deemed to have been made to
the other Party four days (4) from the date of posting (if by
letter) and if by facsimile transmission on the day of such
transmission provided the original of the communication is
received by the other Party within 4 days of the date of
transmission.
9. MISCELLANEOUS
9.1. Failure by either Party to exercise or enforce any right
conferred by this Transfer Agreement shall not be deemed to be
a waiver of any such right nor operate so as to bar the
exercise or enforcement thereof or of any other right on any
other occasion.
9.2. The Contractor and NBA shall, and shall use all reasonable
endeavors respectively to procure that any necessary Third
Party shall do, execute and perform all such further deeds,
documents, assurances, acts and things as any of the Parties
hereto may reasonably require by notice in writing to any
other Party to carry the provision of this Transfer Agreement
into full force and effect.
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10. GOVERNING LAW
This Transfer Agreement shall, to the extent that any aspect or matter
fails to be interpreted, conformed or adjudicated upon by the parties
themselves, be dealt with in accordance with the laws of the United
States and the State of Alaska. Any controversy or claim arising out of
or relating to this Agreement, or breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, such arbitration to take place in
Anchorage, Alaska and judgment upon the award rendered by the
Arbitrator(s) may be entered in any Court having jurisdiction thereof.
IN WITNESS WHEREOF the Parties hereto have by duly authorized
representatives set their hands the day and year first above
written.
for and on behalf of }
National Bank of Alaska (NBA) }
for and on behalf of }
General Communication, Inc. (GCI) }
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SCHEDULE 1: THE TRANSFER EQUIPMENT
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SCHEDULE 2: THE TRANSFERRED SOFTWARE
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SCHEDULE 3: CONTINUING CONTRACTS
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ANNEX F: GCI AND M&I SHARED RESPONSIBILITIES
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LAN AND WORKSTATION DEPLOYMENT, ASSIGNMENT OF RESPONSIBILITIES
Purchase Issues GCI M&I Note
--------------------------
A. Who purchases pc workstations X
--------------------------
--------------------------
B. Who purchases financial printers. X
--------------------------
--------------------------
C. Who purchases laser printers. X
--------------------------
--------------------------
D. Who purchases file server hardware X
--------------------------
--------------------------
E. Who purchases file server software:
--------------------------
--------------------------
1. Novell X
--------------------------
--------------------------
2. Remote monitoring software via dial-up X
--------------------------
--------------------------
3. 3270 Communications Software X
--------------------------
--------------------------
4. Tape Backup Software X
--------------------------
--------------------------
5. Server monitoring X X# 1,4
--------------------------
--------------------------
F. Who purchases UPS system and monitoring software. X
--------------------------
--------------------------
G. Who purchases Bay Network wiring hubs. X
--------------------------
--------------------------
H. Who purchases Helpdesk monitoring platform and software? X
--------------------------
--------------------------
I. Who purchases Branch Network infrastructure? X
--------------------------
Installation & Configuration Issues GCI M&I Note
--------------------------
A. Who performs site surveys to identify:
--------------------------
--------------------------
1. Room for equipment in teller windows. X
--------------------------
--------------------------
2. Placement of premises X X# 1,4
gear.
--------------------------
--------------------------
3. Placement of wiring hubs and patch X
panels.
--------------------------
--------------------------
4. Placement of file server. X X# 1,4
--------------------------
--------------------------
5. Sufficient electrical outlets and power supply. X X# 1,4
--------------------------
--------------------------
6. Placement of financial printers. X X# 1,4
--------------------------
--------------------------
7. Placement of laser X X# 1,4
printers.
--------------------------
--------------------------
8. Diagram of branch with equipment locations noted. X
--------------------------
--------------------------
B. Loads Novell to file server X 3
--------------------------
--------------------------
C. Creates userlist, groups, and security authorization in X 3
Novell
--------------------------
--------------------------
D. Loads Tape Backup Software and tests. X 3
--------------------------
--------------------------
E. Loads remote support (dial-in) software and configures. X 3
--------------------------
--------------------------
F. Load UPS monitoring software and configures. X 3
--------------------------
--------------------------
G. Loads Network Management Software and configures. X# X 1,4
--------------------------
--------------------------
H. Create Installation and Configuration standards X X# 1,4
--------------------------
--------------------------
I. Initiate asset management process prior to shipping X# X 1,4
--------------------------
--------------------------
J. Testing of pc workstations prior to shipping to branch locations X
--------------------------
--------------------------
K. Testing of hubs, routers & servers prior to shipping to branch locations X
--------------------------
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Initial Installation To Include File Server, And At Least One LAN Personal Computer GCI M&I Note
--------------------------
A. Install branch LAN infrastructure X
--------------------------
--------------------------
1. 10-base-T wiring X
--------------------------
--------------------------
2. Provides 10 ft. 10-base-T patch cables X
--------------------------
--------------------------
3. Installs wiring hubs. X
--------------------------
--------------------------
B. Installs Business Phone lines for remote dial-in support as needed. X
--------------------------
--------------------------
C. Installs file server, tape back-up, hard drive, kbd/monitor, UPS X X# 1,4
--------------------------
--------------------------
D. Installs personal computers and financial printers X X# 1,4
--------------------------
--------------------------
E. Installs laser printers X X# 1,4
--------------------------
--------------------------
F. Installs external modem for dial-up remote support X# X 1,4
--------------------------
--------------------------
G. Tests installed components - full online and application testing X X# 1,4
--------------------------
Final Installation to Include Removal of Existing Gear, and Installation of all
Teller Computers, Financial Printer, Laser Printers and Other Personal Computers
in the Branch.
GCI M&I Note
--------------------------
A. Remove existing equipment from teller windows and desks. X X# 1,4
--------------------------
--------------------------
B. Remove existing controller equipment. X
--------------------------
--------------------------
C. Install Teller workstations in windows with financial printers. X X# 1,4
--------------------------
--------------------------
D. Install Desktop workstations and laser printers. X X# 1,4
--------------------------
--------------------------
E. Test each workstation to ensure end to end operability. X X# 1,4
--------------------------
--------------------------
F. Records serial# information for asset management X# X 1,4
--------------------------
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Post-Installation Support GCI M&I Note
--------------------------
A. Maintains users, groups on Novell. X
--------------------------
--------------------------
B. Maintains Novell operating system software patches. X# X
--------------------------
--------------------------
C. Modifies tape backup job schedules. X
--------------------------
--------------------------
D. Maintains 3270 software on server/workstations. X
--------------------------
--------------------------
E. Maintains Office Automation software (wordprocessing, spreads, database) NBA 2
--------------------------
--------------------------
F. Maintains Windows software configurations and patches. X# X 1,4
--------------------------
--------------------------
G. Maintains Novell client software configurations and patches. X
--------------------------
--------------------------
H. Maintains 3rd party software that NBA has today NBA 2
--------------------------
--------------------------
I. Maintains M&I PCTeller software loads (disbursement of new releases) X
--------------------------
--------------------------
J. Maintains M&I Salespartner software disbursement. X
--------------------------
--------------------------
K. Maintains Bay Networks Optivity software and reporting programs. X
--------------------------
--------------------------
L. Maintains performance statistics on servers and local area networks. X
--------------------------
--------------------------
M. NBA Support calls for hardware or software are placed to whom? NBA 2
--------------------------
--------------------------
N. Equipment repair should be shipped to:
--------------------------
--------------------------
1. AT&T Personal Computers and Financial Printers X
--------------------------
--------------------------
2. Bay Networks Hubs X
--------------------------
--------------------------
3. APC UPS Units X
--------------------------
--------------------------
4. HP Laser Printers X
--------------------------
Monitoring/Reporting Support GCI M&I Note
--------------------------
A. Monitors Bay Networks wiring hubs and produces periodic reports X
--------------------------
--------------------------
B. Monitors Routers and produces periodic reports X
--------------------------
--------------------------
C. Monitors DSU/CSU equipment and produces periodic reports X
--------------------------
--------------------------
D. Monitors Novell file servers and produces utilization/capacity reports X
--------------------------
--------------------------
E. Monitors performance of the LAN and produces periodic reports. X
--------------------------
<FN>
Notes
1. GCI and M&I will perform this task on a team basis.
Possibility exists for M&I to provide GCI with information
and GCI staff actually do the physical work.
2. NBA will maintain a small Helpdesk team serving as SPoC. They
will screen all user calls and interact with both GCI's NCC
and M&I's customer support organization. This team will also
support NBA's office automation and 3rd party software on
behalf of users.
3. These tasks will be performed by M&I and accountability
handed off to GCI upon acceptance testing.
4. Where responsibilities are shared, the "#" indicates which
contractor has ultimate responsibility.
</FN>
General Communication, Inc. (GCI) - 99 - FINAL v4.5
Framework Agreement 11/9/95