CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
Exhibit 10.14
CONFIDENTIAL
THIS SYSTEMS INTEGRATION CONSULTING SERVICES AGREEMENT, together with any
attached Exhibits and Statements of Work ("Agreement"), is between LCI
International Management Services, Inc. ("LCI") having a place of business at
8180 Greensboro Drive, Suite 800, McLean, VA 22102 and Predictive Systems, Inc.
("Contractor") having a place of business at 620 Herndon Parkway, Suite 360,
Herndon, VA 20170.
WHEREAS, Contractor performs consulting services; and
WHEREAS, LCI and Contractor desire to establish standard terms and conditions
that shall apply to such services to be performed by Contractor for LCI;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1 - DEFINITIONS
As used throughout this Agreement, the following shall have the meanings below
unless otherwise indicated:
(a) The term "Acceptance Date" means the first five business day after LCI
accepts an individual phase of the Work or it is deemed accepted
pursuant to Section 8 herein. The term "Final Acceptance date" means
the first business day after LCI accepts the completed NOC.
(b) The term "Affiliate" of a named Party means an entity directly or
indirectly controlling, controlled by or under common control with such
Party.
(c) The term "Agreement" means the terms and conditions of attached
Exhibits, Statements of Work and any other documents made a part of
this Agreement or Incorporated by reference, including any written
amendments which have been signed by the authorized representatives of
the Parties.
(d) The term "Authorized LCI Representative" means a designated member of a
LCI, who is empowered to approve Work.
(e) The term "Confidential Information" shall mean any oral, written,
computer generated or other information, whether in intangible or
tangible form and regardless of the media, including without limitation
all Work, notes, notations, or drafts, provided by LCI or Contractor
Personnel to Contractor in connection with this Agreement, the Work or
relating thereto or developed and/or supplied by Contractor to LCI as
part of, or in connection with the Work.
(f) The term "Contractor Personnel" means any and all Contractor employees,
agents, and subcontractors supplied by Contractor perform services for
LCI and in no event or for any purpose will these persons be considered
employees of LCI.
(g) The term "deliverables" has the meaning given to it in Article 16 of
this Agreement.
(h) The term "Documentation" means all or any portion of the following: NOC
system designs, NOC processes or procedures, NOC process or procedure
designs, software summaries, software design, functional
specifications, user guides, operator guides, installation guides, and
other similar materials generated as part of this Agreement pursuant to
the statements of Work.
(i) The term "Equipment" means all tangible property not covered under the
definition of Hardware to be used in conjunction with or installed as
part of the NOC.
(j) The term "FOC" means Final Operating Capability under which contractor
shall provide NOC capability as defined in the Statements of Work.
Contractor shall perform all phases for which Statements of Work are
entered into by the parties.
(k) The term "Hardware" means tangible electronic equipment, including, but
not limited to, computers, drives, switches, wiring, printers and other
peripherals used in conjunction with or installed as part of the NOC.
(l) The term "IOC" means Initial Operating Capability, under which
Contractor shall provide the services and shall implement the
capabilities set forth in the Statements of Work attached as Exhibit A.
(m) The term "LCI" means LCI International Management Services, Inc. Its
employees, directors, officers, agents, subcontractors, subsidiaries,
successors and assignees, existing now or created in the future.
(n) The term "NOC" means the Network Operations Center to be created at
LCI's Arlington, Virginia location together with all of the related and
fully integrated Systems, all as described in one or more Statements of
Work.
(o) The term "Operative" means that the NOC and/or any of its Systems or
subsystems conforms to or exceeds the acceptance criteria set forth in
the applicable Statements of Work.
(p) The term "Party" in its singular or plural form, refers to either LCI
or Contractor or both, as dictated by the use.
(q) The term "RFI" means the Request for Information issued by LCI
regarding the Work on February 25, 1996.
(r) The term "Software" means computer programs, including without
limitation, the related media and Documentation, in machine-readable
and printed forms.
(s) "Statements of Work" mean the written descriptions of the Work which
Contractor may agree from time to time to provide LCI under this
Agreement, which shall include descriptions of all related
Deliverables, prices, billing rates, schedules and milestones,
acceptance tests and criteria and specifications (unless the Statement
of Work provides for the development of specifications). All Statements
of Work shall be attached to this Agreement as exhibits and shall be
incorporated into this Agreement by this reference.
(t) The term "Systems" means the combination of Work, Software, Equipment
and Hardware to be provided by Contractor (with the assistance of LCI
as provided in specific Statements of Work or other exhibits), all as
set forth in the applicable Statements of Work.
(u) The term "Task Orders" means a request form (as shown in Exhibits B,
B1, B2) issued by LCI describing the Work to be performed under this
Agreement and identifying the Contractor Personnel necessary to
perform such Work.
(v) The term "Technical Representative" means the LCI technical
representative assigned by LCI to oversee and coordinate Work to be
performed.
(w) The terms "Third-Party Work", "Third-Party Systems"; "Third-Party
Hardware"; "Third-Party Equipment" and "Third-Party Products"
(collectively "Third-Party Activities") means the Work and Products
delivered by parties not under contract with Contractor ("Third
Parties").
(x) The term "Work" means the tasks, performance, reports, services.
Documentation and other items to be provided by Contractor (but not by
Third Parties) to LCI, at LCI's request, pursuant to one or more
Statements of Work.
ARTICLE 2. - SCOPE OF AGREEMENT
(a) Contractor shall deliver all of the Deliverables identified in the
Statements of Work attached or subsequently attached hereto within the
time-frames identified therein. As and to the extent specified in the
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Statements of Work., Contractor shall supervise and manage all
Third-Party Activities in creating the NOC, and Contractor shall
provide the NOC from conceptualization and design through final
implementation and sustained engineering fully compliant with the
compliant with the specifications set forth in, or developed pursuant
to, the Statements of Work. Time is of the essence of Contractor's
performance hereunder. The Work to complete the NOC shall be subdivided
into four (4) phases, identified below and as are or shall be more
fully detailed in the Statements of work
(i) Assessment and Service Definition. Contractor shall deliver
all Deliverables to be provided in this phase by July 1, 1996
(ii) NOC Architecture Framework and System Design.
(iii) Production Implementation; and
(iv) Sustained Engineering.
(b) Contractor shall provide Contractor Personnel to perform Work in
accordance with the Statements of Work. This Agreement establishes the
general terms and conditions that will apply to such Work performed by
Contractor for LCI.
(c) LCI does not guarantee that any minimum amount of Work will be
purchased from Contractor under this Agreement.
(d) (i) Any Affiliate of LCI, shall be entitled to request Work from
Contractor pursuant to the terms and conditions, including
pricing, of this Agreement by issuing a Task Order for such
Work and then agreeing with Contractor on a related Statement
of Work, provided that any such Statement of Work shall
constitute a separate agreement between Contractor and the
Affiliate incorporating the terms and conditions of this
Agreement so as to be applicable between Contractor and the
Affiliate, unless expressly agreed otherwise.
(ii) Any Work performed for LCI or any LCI Affiliate pursuant to
the terms and conditions of this Agreement shall accrue to the
benefit of LCI and its Affiliates for the purpose, as
applicable of determining pricing hereunder.
(iii) Nothing in this Agreement shall be deemed at any time either
to obligate LCI or any LCI Affiliate to obtain from Contractor
any minimum quality of Work hereunder, or to limit the right
of LCI or any LCI Affiliate, in their sole discretion, from
obtaining at any time informally or from any third party the
same or similar Work as may be obtained or be available
hereunder.
ARTICLE 3. - TERM
This Agreement shall have an effective date of May 21, 1998, and shall remain in
full force and effect until December 31, 1998 or a later date if agreed to in a
Statement of Work, unless terminated pursuant to the Article entitled
"Termination".
ARTICLE 4. - TASK ORDERS
In order for LCI to purchase and for Contractor to perform Work, LCI shall issue
Task Orders using the forms attached hereto as Exhibit D, which shall be
governed by the terms and conditions of this Agreement. Each Task Order shall
specify the Authorized LCI Representative and the Work to be performed. The Task
Order may be a blanket Task Order or an individual Task Order for Work to be
performed for LCI. Contractor shall respond to each Task Order by submitting to
LCI a Statement of Work, which when agreed to by the parties shall govern the
Work to be performed and shall supersede the Task Order.
ARTICLE 5. - TIMING OF MILESTONES (DELIVERY), SHIPMENT, AND INSTALLATION
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(a) Contractor shall be responsible for performing all Work and delivering
all Deliverables described in the Statements of Work in accordance with
the schedules, milestones and specifications set forth therein.
Further, contractor shall be responsible for delivering and achieving
acceptance of the NOC and each phase of the NOC project and position,
and on the date(s) described in the Statements of Work, provided
that all appropriate Statements of Work have been agreed to by the
parties, and pursuant thereto, the NOC will be completed on or
before February 28, 1998 subject to changes in Deliverables and Work
specified in any subsequent Statements of Work.
(b) To the extent provided in the Statements of Work, Contractor shall
coordinate, manage and supervise Third-Party Activities in the
implementation of individual components of the NOC and its Systems,
including Software, Hardware and Equipment, whether ordered by
Contractor, LCI or a subcontractor. Contractor shall, with respect to
Third-Party Activities, be responsible for notifying LCI on a weekly
basis of any potential or actual delays due to Third-Party Activities.
The foregoing shall constitute Contractor's sole responsibilities with
respect to Third-Party Activities.
(c) Time is of the essence of Contractor's obligations hereunder.
(d) Deliveries are to be made in quantities, qualities and at times
specified in the applicable Statements of Work. except for electronic
transmission as agreed by the parties. Contractor shall ship all
individual components of the NOC for which it is responsible in
accordance with the applicable Statements of Work via carrier of
Contractor's choice, with freight prepaid.
(e) If Contractor's efforts or deliveries fail to meet any scheduled due
date and/or schedule, LCI without limiting its other rights or remedies
as specified herein, may direct expedited routing and any costs
incurred thereby shall be paid for by Contractor, LCI shall not be
liable for Contractor's commitments or production arrangements in
excess of the amount, or in advance of the time, necessary to meet
LCI's delivery or milestone schedule.
(f) As provided in subsection (b) above, Contractor shall not be
responsible for delays caused by Third-Party Activities provided that
Contractor notifies LCI of any potential or actual delay due to
Third-Party Activities as soon as Contractor learns of such potential
or actual delay. In such cases and subject to the cooperation and
performance of Third Parties, Contractor shall promptly provide LCI
with revised delivery dates for the completion of the particular phase,
subsequent phases and the final delivery of the NOC, and such revised
dates shall become Contractor's delivery date for purposes of the
remainder of this section.
(g) Contractor and LCI agree that it may be difficult, if not impossible,
to accurately determine the amount of damages that LCI may Incur if
Contractor fails to achieve each delivery and acceptance data in a
timely manner as scheduled. Accordingly, and subject to the provisions
of Article 21, if delivery or acceptance have not occurred in a timely
manner, [****]. Contractor shall have a grace period of ten (10) days
to fully cure the delayed delivery or acceptance. LCI shall not be
liable for Contractor's costs in completing the delayed delivery and/or
acceptance effective the day following the [****].
(i) In the case of delayed delivery of the final NOC (FOC) -
[****].
(ii) In the case of delayed delivery of IOC - [****].
(iv) In the case of delayed delivery of any work specified in a
Statement of Work - [****].
(h) To the extent provided in the Statement of Work, Contractor shall be
responsible for diligently installing, or supervising installation by
Third Parties, and shall be responsible to provide customization to the
CONFIDENTIAL
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
4
Deliverables and/or Systems, using adequate numbers of technically
skilled personnel, and shall notify LCI promptly after such Work is
complete.
(i) LCI may by written notice and without penalty, (a) delay the scheduled
data for delivery of any or all of the Systems or milestones, including
the dates of any interim milestones, the final delivery date of the
completed NOC, or any Equipment, Hardware, Software, or Systems
ordered under this Agreement (in the event, of any such delay of more
than 15 days, Contractor shall have the right to render interim
invoices for Work performed through the date of suspension): and/or (b)
cancel all or any part of the NOC project including equipment software,
and/or systems ordered under this Agreement prior to the delivery of
the individual NOC component: PROVIDED, HOWEVER, that if Contractor
has already paid for Third Party Products for which it may not obtain
refunds or otherwise has incurred costs which it cannot recover,
Contractor shall be reimbursed for such expenses by LCI.
ARTICLE 6 - ORDERING THIRD-PARTY PRODUCTS
It is anticipated that the creation of the NOC shall combine the know-how and
consultancy services of Contractor with Products from third-parties. Contractor
shall coordinate with the Authorized LCI Representative when it is necessary for
LCI to order Products for use with the NOC system. LCI and its Authorized
Representatives shall fully cooperate with Contractor in this process.
ARTICLE 7. - TECHNICAL DESIGN
All Work to be performed, including general direction and guidance in connection
with the Work, is to be coordinated with, and will be subject to the approval of
LCI's Technical Representative. Nothing in this paragraph shall diminish
Contractor's responsibilities to supervise and manage the NOC project hereunder.
ARTICLE 8. - PROJECT COORDINATION/PERFORMANCE/ACCEPTANCE
(a) During the course of Contractor's performance under this Agreement, LCI
shall have the right of approval, which shall not be unreasonably
withheld, over any major milestones and deliverables related thereto as
well as final Acceptance of Products, Systems and the completed NOC,
PROVIDED, HOWEVER, that LCI's approval shall be given or withheld in
accordance with the acceptance criteria set forth in the applicable
Statements of Work or specifications developed pursuant thereto.
(b) If a Statement of Work requires Contractor to develop specifications.
Contractor shall deliver the specifications to LCI in writing in
sufficient detail as reasonably required by LCI. The specifications
shall be subject to LCI's satisfaction, review and approval, which
shall not be unreasonably withheld.
(c) Deliverables will be developed through Statements of Work, subject to
the following exceptions:
(i) As is deliverable under the Assessment and Service Definition
Phase, Contractor shall provide the due date for the
completion of the NOC Architecture Framework and System Design
phase.
(ii) As is deliverable under the NOC Architecture Framework
and System Design Phase, Contractor shall provide
escalation procedures and timing for repair of the NOC and
any of its Component Systems.
(iii) As is deliverable under the NOC Architecture Framework and
System Design Phase, Contractor shall provide the due date for
the completion of the Production Implementation phase and the
final NOC, and shall reflect modification required to the due
date reflected in Article 5 (a).
Acceptance of these specific deliverables will be by LCI's approval:
PROVIDED, HOWEVER, that LCI's approval shall not be unreasonably
withheld.
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(d) Contractor shall provide to LCI detailed written progress reports, on
at least a [****] basis, which shall provide the status of items
completed, items to be completed within the next reporting period and
open action items and any other items required by LCI. Contractor shall
report all Third-Party Activities for which it is responsible under its
duty to manage and supervise all Third-Party Activities. Including
status of work and upcoming deliveries to be made by Third-Parties.
(d) In determining its Acceptance, LCI shall use the applicable acceptance
tests specified in the applicable Statements of Work or as developed
pursuant thereto on the Deliverables and/or the NOC (including the
entire System) to confirm that they are Operative Contractor shall run
any Acceptance tests under LCI's review. If LCI discovers any
Deliverables (including the entire System) are not Operative, LCI shall
notify Contractor of the deficiencies. Contractor at its own expense,
shall modify, repair, adjust or replace the Deliverables (including the
entire system) to make it Operative within 15 business days after the
date of LCI's deficiency notice. LCI may perform additional acceptance
tests during a period commencing when Contractor has delivered revised
Deliverables correcting all the deficiencies LCI has noted. If the
Deliverables still are not Operative in LCI's reasonable judgment,
subject to Article 8 (a) above, LCI may terminate all or part of this
Agreement for material breach or, at its option, repeat the procedure
of this paragraph as often as it determines necessary.
(e) LCI, at its discretion, may use the procedure in this Section to
determine acceptance of interim Deliverables updates and enhancements.
If LCI finds an enhancement not to be Operative and rejects it, LCI
shall have no obligation to pay for such update or enhancement, and
Contractor shall continue to support the version or release of the NOC
or applicable System currently installed pursuant to the applicable
Statement(s) of Work.
ARTICLE 9. - SELECTION AND REPLACEMENT PROCESS
(a) LCI, at its option, may request Contractor to provide names of
Contractor Personnel, as well as their respective resumes, for review
prior to entering into a Statement of Work. The information on the
resume must include, without limitation, previous work experience
including names of companies, and the names of LCI Technical
Representatives for whom that individual had worked. LCI reserves the
right in its sole discretion, to approve or reject any person whose
name is submitted by Contractor.
(b) LCI reserves the right to approve or reject Contractor Personnel
assigned to any Work and to request replacement at any time. When a
replacement is requested by LCI, Contractor shall submit to LCI the
name and resume of the proposed replacement, and such replacement shall
be at least as qualified as the individual it is replacing. LCI may, in
its sole discretion, reject such replacement. If Contractor cannot
within [****] provide a qualified replacement which is acceptable to
LCI, then LCI may reduce the Work in accordance with the Article
entitled, "Termination" and LCI may perform, or contract with a third
party for the performance of, the terminated Work outside the scope of
this Agreement.
(c) Contractor Personnel may not begin Work without an approved Statement
of Work or other approval in writing from an Authorized LCI
Representative. Any Contractor Personnel reporting for Work without
such authorization shall not be billed to LCI for the period of time in
which the letter of engagement has not been executed by LCI (but the
foregoing shall not apply to any work performed prior to the date of
this Agreement).
ARTICLE 10. - PRICE AND PAYMENT
(a) Each phase or sub-phase of the NOC project shall be covered by a
Statement of Work. Contractor may invoice for Work at the times, and on
a fixed price or time and materials basis, and at the rates, as
provided in the applicable Statements of Work. If a Statement of Work
provides that invoices shall be issued on terms other than upon
acceptance of the Deliverables under such Statement of Work, [****] of
each invoice shall be withheld until acceptance of the Deliverables
under such Statement of Work. An
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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additional [****] of all invoices shall be withheld until Final
Acceptance, and the withheld amounts may be invoiced upon Final
Acceptance.
(b) Contractor shall submit invoices to LCI via a shipping method that
provides contractor with notice of the date on which LCI received such
invoice. Each invoice shall include the following:
(i) Task Order Number
(ii) Period Billed
(iii) Name(s) and labor description of Contractor Personnel
(iv) Number of hours worked by each individual(s) during the
billing period and the applicable hourly rate, if on a time
and materials basis.
(c) All amounts to be billed to and paid by LCI are gross amounts.
(d) The applicable amounts due Contractor shall be paid in United States
dollars after receipt of a properly executed invoice. LCI shall pay
such invoices within net thirty (30) days of receipt. [****]. Invoices
that are not properly prepared shall be returned to the Contractor for
revision. amounts withheld from invoices or payments, as provided in
Article 10 (a) shall be paid in United States dollars within net
fifteen (15) days of the applicable acceptance date.
(e) The first Statement of Work attached hereto shall form the rate basis
for Contractor's work hereunder (for time and materials activities).
This Statement of Work shall include all of the rates for Contractor
Personnel by designated title that Contractor anticipates will perform
Work hereunder. [****].
(f) All rates shall include regular time, overtime, holiday and weekend
time spent by Contractor Personnel on LCI Work. Unless otherwise
provided by the applicable Statement of Work, overtime, holiday
and/or weekend Work shall not be performed by Contractor without
prior consent from the Authorized LCI Representative.
(g) For time and materials activities, LCI shall be invoiced for actual
time spent by Contractor Personnel performing LCI Work. Except as
provided in Article 11, LCI shall not be invoiced for [****],
lunch breaks or other breaks taken by Contractor Personnel.
ARTICLE 11.- TRAVEL
(a) The LCI Technical Representative may request Contractor Personnel to
travel outside of Northern Virginia in the performance of duties.
Contractor Personnel must receive approval from Contractor and must
have the written authorization of the appropriate LCI Director before
commencing travel.
(b) Payment Procedure.
(i) Contractor shall initially be responsible for travel expenses
and shall reimburse Contractor Personnel, as appropriate.
(ii) Contractor will then invoice LCI for the travel. All travel,
transportation and per diem expenses, copies of which shall
accompany invoices, for which reimbursement is sought, shall
have the signature of the LCI Technical Representative and
shall be itemized and substantiated with appropriate receipts.
(iii) Expense reports must be filed within [****] of completion of
travel and invoiced on the next regular invoice submission to
LCI.
(c) Payment Policy. LCI-approved travel and related LCI-approved
out-of-pocket expenses incurred in performing services for LCI under
the Agreement shall be invoiced to LCI at cost.
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**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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(d) Reimbursement will be as follows:
(i) Commercial transportation - Reimbursable on an "incurred cost"
basis [****].
(ii) Private automobile - Reimbursable at $.26 cents per mile.
(iii) Per diem - Reimbursable for actual lodging and local
transportation. Actual meal expenses shall not exceed [****]
per day.
(iv) Rental cars if required in "out-of-town" assignments with
prior approval of LCI Authorized Representative.
(e) LCI will not reimburse Contractor for local travel incurred as a result
of commuting to LCI's facility to perform work including but not
limited to the use of rental vehicles.
(f) In no event shall LCI be liable for any travel changes associated with
relocation of Contractor Personnel without the written approval of the
Authorized LCI Representative.
(g) Contractor shall not bill LCI for travel expenses of Contractor's New
Jersey employees (only Program Managers Service Architects and Senior
Systems Engineers) who travel to LCI's site, but LCI shall pay for the
time spent by such Employees in so traveling at the applicable hourly
rates set forth in the Statement of Work.
ARTICLE 12. - TIME ENTRY AND REPORTS
Contractor Personnel shall submit on LCI's time entry system on a bi-weekly
basis time sheets. Such time sheets shall be prepared by a LCI's Technical
Representative prior to submission. Contractor shall provide reports as
requested by LCI on a monthly basis. The reports shall contain a cumulative
amount billed to LCI under all Statements of Work along with any appropriate
discounts.
ARTICLE 13. - RECORDS
For Work performed by Contractor Personnel pursuant to this Agreement,
Contractor shall maintain such records as will adequately substantiate charges
and hours worked and shall produce such records for LCI's inspection at
Contractor's business office where such records are kept, upon LCI's request,
for a period of [****] following the furnishing of the respective Work.
LCI shall give timely notice of its Intent to inspect such records and preserve
the confidentiality of such terms as Contractor may reasonably request.
ARTICLE 14. - WORK IN PROGRESS
(a) In the event all or part of this agreement is terminated for any reason
whatsoever, Contractor shall immediately, at LCI's option and request
document in detail the status of the Work that has been terminated and
either deliver to LCI or dispose, in accordance with LCI's instructions
and the terms of this Agreement, of all Software, Documentation or
other materials relating to or failing under the Work that are in its
or any Third Party's possession., whether or not such Work has been
completed or is still in progress. LCI shall have all rights to such
Software, Documentation and materials in accordance with Articles 17
and 18. If termination occurs due to LCI's termination for convenience
or LCI's default hereunder, any Work performed by Contractor under this
section may be billed at time and materials rates.
ARTICLE 15. - ENHANCEMENT AND UPDATES
Should LCI so request, and pursuant to an agreed Statement of Work, Contractor
shall deliver procedures to LCI to update and enhance the NOC, its component
Systems, and any Deliverables provided hereunder as part of the Sustained
Engineering phase.
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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ARTICLE 16. - CONTRACTOR'S RESPONSIBILITY
(a) Contractor shall perform all work hereunder to the highest standards of
quality in the industry and is solely responsible for providing all
Deliverables and meeting all milestones and phase deadlines as provided
in the Statements of Work.
(b) Contractor shall manage and supervise to the highest standards of
quality in the industry all Third-Party Activities in creating the NOC
and for which it is responsible pursuant to the Statements of Work.
Contractor's responsibilities in this regard include, but are not
limited to:
(i) Supervising and managing all aspects of the NOC project and
all Third-Party Activities for which it is responsible
pursuant to the Statements of Work:
(ii) Reporting all issues, problems and delays to LCI together with
suggested resolutions of such issues, problems and delays as
soon as practicable thereafter, but no later than the weekly
report and/or meeting described in Article 8 (c) (Project
Coordination).
(iii) Developing and implementing and providing to LCI in writing
procedures Contractor will use to diligently identify issues,
problems and delays so that those issues, problems and delays
are quickly identified and resolved in a manner not to impact
the timely delivery of each Phase and the NOC project as a
whole.
(iv) Meeting with LCI's Authorized Representative and/or Technical
Representative on a weekly basis to discuss the status of the
NOC project, notify LCI of any actual or potential issues,
problems and delays, and to deliver and discuss all reports
required hereunder.
Provided that Contractor has performed its obligations under this
Article 15(b). Contractor shall not be responsible for Third-Party
Products. Work and/or Activities for which they did not contract with
LCI.
(c) For any and all Third-Party Products Contracted by Contractor
hereunder, whether Equipment, Hardware or Software. Contractor will
pass through any and all warranties provided by third-Parties to LCI
(as provided in Warranties, below). All such warranties shall be
approved by LCI prior to contracting.
(d) Contractor shall be responsible to LCI for all acts and omissions of
Contractor Personnel.
(e) Contractor shall perform the Work in accordance with the conditions of
all applicable governmental permits and licenses.
(f) Contractor shall not assign or delegate this Agreement or any of its
rights, duties or obligations to any other person or entity without the
prior express written approval of LCI. Contractor shall not subcontract
any Work under this Agreement without the express written approval of
LCI on a case-by-case basis.
(g) Contractor is responsible for all employee-related benefits applicable
to Contractor Personnel performing Work under this Agreement. LCI shall
not be obligated to provide Contractor Personnel with LCI benefits
unless otherwise required by law. Contractor is responsible for
withholding Contractor Personnel's portion of FICA and Medicare and for
withholding income for federal and state income tax purposes to the
extent required by law. Contractor will pay over all amounts withheld
to the IRS, and will pay its share of FICA taxes for Contractor
Personnel provided to LCI under this Agreement. Contractor agrees to
indemnify and hold LCI, its parent, and Affiliates harmless from any
and all claims and expenses relating to contractor's reporting and
payment obligations with respect to Contractor Personnel.
(h) If requested by LCI, Contractor , at LCI's expense, shall provide drug
testing of Contractor Personnel presented for work at LCI in accordance
with LCI's established policy and any applicable federal and state laws
regulating employee drug testing. Results shall be reported to LCI
within ten (10) days of the request.
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(i) Contractor and Contractor Personnel shall fully cooperate with any
other contractors performing similar or related Work for LCI.
(j) As called for under the applicable Statements of Work, Contractor shall
transfer all knowledge necessary to fully operate and maintain the NOC
to skilled LCI personnel. Such training shall be to the highest
industry standards.
(k) Contractor agrees that it and Contractor Personnel shall at all times
comply with all security regulations in effect at LCI's premises.
ARTICLE 17. - LCI PROPERTY
Unless the Parties otherwise agree in writing, any property including, but not
limited to Software, Documentation, designs, reports, manuals, documents,
patterns, specifications, data or other technical or proprietary information,
and other equipment or material of every description furnished to Contractor by
LCI is and shall remain the property of LCI. Contractor shall not substitute any
other property for LCI's property and shall not use such property except in
performing Work as required by this Agreement. Such property while in
Contractor's custody or control shall be maintained in good condition at
Contractor's expense and shall be held at Contractor's risk.
ARTICLE 18. - INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION
(a) Contractor warrants, represents and agrees that:
(i) Except to the extent that LCI specifically provides an idea or
ideas, materials, specifications or directions to Contractor
that necessarily preclude the related Work from being original
to Contractor, and except for Third Party IP (Intellectual
property owned by Third-Parties) all Work provided by
Contractor shall be original to Contractor.
(ii) The Work shall not infringe upon or violate any patent,
copyright, trademark, trade secret or other intellectual
property right of any third party. Contractor, at its own
expense, shall indemnify and hold LCI, its parent, and
Affiliates harmless from any loss, damage, liability or
expense (including attorneys' fees) arising from any claim(s),
action(s) or other proceeding(s) based on a claim that any
Work provided by Contractor to LCI infringes upon or violates
any patent, copyright, trademark, trade secret or other
intellectual property right of any third party. Contractor
shall pay all damages, fees, losses, liabilities, cost or
expenses, including attorney's fees, in any such action or
other proceeding or the settlement of any such claim, as the
case may be. Contractor shall immediately notify LCI and
defend LCI and Affiliates against any such claims, actions, or
other proceedings, and shall conduct any settlement
negotiations, on behalf of LCI at Contractor's sole cost and
expense: provided that LCI may elect to participate in the
defense and any settlement negotiations through counsel of its
own choosing and at its own cost, and provided that LCI shall
have final approval of any settlement requiring payment from
LCI or reducing LCI's rights to use any property which forms
the subject matter of the claim, action or proceeding. The
foregoing provisions of this Article 18 (a)(ii) and the
provisions of Article 18(a)(iii) shall not apply to any Third
Party IP.
(iii) Should the Work or any portion of the Work provided by
Contractor become, or in Contractor's opinion is likely to
become, the subject of a claim or infringement, or should
LCI's use of the Work be finally enjoined, Contractor shall,
at its expense:
(A) Procure for LCI the right to continue using,
relying upon and receiving the Work;
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10
(B) Replace or modify the Work to make it
non-infringing provided that such replacement or modified Work
continues to comply substantially with all applicable specifications or
other requirements under this Agreement; or
(C) If neither of the foregoing can be suitably
accomplished, reimburse LCI for the Work by refunding to LCI the price
paid by LCI for the Work.
(i) In the course of performing its services
under this agreement, Contractor may devise, create or develop computer
software or hardware (including, without limitation, customization of
software provided by others, development of software or hardware for
the purposes of connecting or integrating elements of the overall NOC
System and development of software designed to enhance overall NOC
System performance or the performance of discrete NOC system elements)
or other material, devices or inventions in order to deliver the
assessment, architectural, engineering. Implementation and other system
integration services contemplated in the Statements of Work
contemplated by Article 2(a), including the completed NOC and each
phase of the NOC project ("System Deliverables"). In addition, LCI may
request, and Contractor may deliver, other software, hardware,
material, devices inventions for other, specific purposes which would
be defined, other software, hardware, material, devices or inventions
for other, specific purposes which would be defined in one or more
Statements of Work in addition to those contemplated in Article 2(a)
("Additional Deliverables"). "Deliverables" collectively refers to the
combination of System Deliverables and Additional Deliverables, if any.
(ii) Contractor owns and shall retain all
right, title and interest in and to all of the System Deliverables and
all of its architecture, programming and engineering ideas, techniques,
methods or know-how, as well as all patents, copyrights, trademarks,
trade secrets, rights of authorship and other intellectual property
rights related thereto, including without limitation, all rights to
derivative works, and LCI agrees and acknowledges, other than the
license granted in Article 18 (b)(iii), it shall make no claim to the
contrary by virtue of this Agreement or otherwise.
(iii) Contractor grants to LCI an
irrevocable, perpetual, non-exclusive, fully-paid license to use all
System Deliverables, solely in connection with the installation, use
and maintenance of the Deliverable. In whole or in part, LCI may copy,
modify, and create derivative works of the System Deliverables, but
only in connection with the installation, use and maintenance of the
NOC, LCI may use the System Deliverables outside the United States only
in accordance with applicable export controls laws. LCI shall use its
best efforts to see that its employees and users of any System
Deliverables comply with the terms and conditions of this Article
18(b).
(b) Contractor shall promptly disclose to LCI all material (including
Software, Documentation reports, programs, source code, manuals, flow
charts, tapes, card decks, listings and any other programming materials
and all inventions, whether or not patentable) forming any portion of
any Additional Deliverables created, composed, made or conceived by
Contractor or Contractor Personnel during the performance of Work. The
Parties agree that, except as may be otherwise provided in the related
Statement of Work or amendment to this Agreement, each Additional
Deliverable is a work made for hire, that all portions of any
additional Deliverable, including all copyrights, any extension or
renewals, and all related work, shall be the exclusive property of LCI,
and that LCI shall have the right, at its own expense, to obtain and to
hold in its own name copyrights, registrations, patents, or such other
protection as may be appropriate to said Additional Deliverable.
Contractor warrants and shall provide LCI and its assigns the full,
sole and continuing right (without any payments or liabilities to any
person) to use the Additional Deliverables and to publish, perform,
reproduce and distribute throughout the world any or all portions of
such Additional Deliverables, either as a complete unit or in segments,
in any way LCI sees fit and for any purpose whatsoever. Contractor
shall insert a proper statutory copyright notice at an appropriate
location on copyrightable material, and on all portions and on all
related items which may be subject to copyright protection, which
copyright notice shall specify LCI as the sole copyright owner.
Contractor further agrees to give LCI or any person designated by LCI,
at LCI's expense, all such information and to execute all such
additional documents including, without limitation, patent
applications, as may be reasonably required to
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perfect the rights referred to herein. In the event Contractor or third
party is deemed to be author for copyright purposes of any such
materials and Additional Deliverables under this Agreement, Contractor
agrees to assign or cause such third party to assign and execute and
have its Contractor Personnel execute any documents (including patent
applications and assignments) reasonably requested by LCI, at LCI's
expense, to provide LCI the right to won, use and protect the
Additional Deliverable under this subparagraph.
(i) Notwithstanding the foregoing provisions of this Article 14,
the Parties acknowledge that in some cases the Work, or as portion
thereof, may use, incorporate or be dependent upon patents, copyrights,
trade secrets and/or other intellectual property that is either owned
by Contractor, the ownership of which by Contractor pre-dates the Task
Order for the affected Work (the "Pre-Existing Contractor IP") or is
owned by third parties ("Third Party IP"). Contractor shall disclose to
LCI prior to entering into any Task Order for Work hereunder, but in
any case in advance of commencing any affected Work hereunder, the
extent to which such Work, or any portion thereof, will use,
incorporate or be dependent upon any such Pre-Existing Contractor IP or
Third Party IP, and whether or not so identified to LCI.
(A) Contractor hereby grants to LCI a non-exclusive, fully-paid,
irrevocable and perpetual license to use such Pre-Existing
Contractor IP solely in connection with the installation use
and maintenance of the NOC and otherwise on the terms and
conditions set forth in Article 18(b)(iii) above. Contractor
represents and warrants that Contractor has sufficient right,
title and interest to grant the foregoing license in the
Pre-Existing Contractor IP to LCI.
(B) Contractor shall further use its best efforts to obtain for
LCI license rights to any such Third Party IP as are necessary
or appropriate to LCI's ownership and use of the Work.
(C) Contractor agrees to give LCI or any person designated by LCI,
at Contractor's expense, all such information and to execute
all such additional documents as may be reasonably required to
perfect LCI's rights to the license granted pursuant to
subsection (c)(i)(A) above or any license granted pursuant to
subsection (c)(i)(A) above.
ARTICLE 19 [****]
During the period covering any Statement of Work in which Contractor
Personnel are assigned to perform Work and for a period of six (6) months
following the earlier of either the expiration or termination of such
Statement of Work [****]Further, for such Contractor Personnel who have
executed a non-disclosure agreement, Contractor shall give written notice to
LCI in writing within seven (7) days [****].
ARTICLE 20 - CONFIDENTIAL INFORMATION
(a) In order that Contractor may perform this Agreement, LCI may disclose
confidential and proprietary information pertaining to LCI's past,
present and future activities, including without limitation, research,
development, or business plans, operations or systems. It is
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**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
12
further recognized that Contractor will develop material and
information which LCI will wish to hold and to be held by Contractor as
confidential and proprietary information of LCI. Accordingly,
Contractor agrees to the following with respect to Confidential
information:
(i) To use Confidential Information only in performance of this
Agreement;
(ii) Not to make copies of any Confidential Information or any part
without the permission of LCI;
(iii) Not to disclose any Confidential Information or any part to
others for any purpose without the prior written consent of LCI;
(iv) To limit dissemination of Confidential Information to Contractor
Personnel who are directly involved in the performance of this Agreement, who
have a need to know and to use Confidential Information for purposes of such
performance and who have been advised of and agree to the obligations and
restrictions on persons receiving such information as set forth in this
Agreement, provided that Contractor notifies LCI in advance of the names of any
Contractor Personnel having access to Confidential Information under this
Agreement;
(v) To treat Confidential Information as strictly confidential and as
trade secret information, by protecting such information in the same manner and
subject to the same protection as Contractor treats and protects its own
respective proprietary information of like importance but in any event using no
less than reasonable care;
(vi) To disclose Confidential Information to third parties only with
the prior written consent of LCI only after such third parties have agreed in
writing to be bound by the confidentiality and use restrictions of this
Agreement;
(vii) Subject to Article 18, to return LCI information and any
copies thereof to LCI at the completion of all Work under this Agreement or
at such earlier date as LCI may designate, with a certification by an officer
of Contractor that Contractor retains no Confidential Information in any form
whatsoever. Subject to Article 18, upon completion of all Work or upon
receipt of a request by LCI, Contractor shall also erase or destroy, or cause
to be erased or destroyed, any Confidential Information in any computer
memory or date storage apparatus: provided, however, that Contractor shall
deliver to LCI the database or data flat file and full accompanying
Documentation identifying record format and record data elements, and
(viii) To ensure that all Contractor Personnel having access to such
Confidential Information terminating employment for Contractor are reminded
prior to such termination of his/her nondisclosure obligations undertaken
pursuant to this or other employee nondisclosure agreement(s).
(b) It is understood by both Parties that Contractor shall not disclose to
LCI any Contractor Confidential Information without the express prior
written agreement of LCI and under appropriate nondisclosure terms to
be negotiated by the Parties in good faith.
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(c) For the purpose of protecting LCI's proprietary interest in
Confidential Information under this Agreement, Contractor shall
designate by appropriate markings all Work as LCI Confidential
Information upon its generation.
(d) Confidential Information will not disclosed to any third party during
the term of this Agreement or thereafter except with the express prior
written approval of LCI or under the following conditions:
(i) It was in the public domain at the time of LCI's communication to
Contractor;
(ii) It enters into the public domain through no fault of Contractor
subsequent to the time of LCI's communication to Contractor;
(iii) It was in Contractor's possession of any obligation of confidence
at the time of LCI's disclosure to Contractor; provided, however, that
Contractor immediately informs LCI in writing to establish Contractor's prior
possession; provided further, however, that this exception shall not apply to
the Work, all of which upon its generation by Contractor constitutes LCI
Confidential Information;
(iv) It is developed by Contractor Personnel independently of and
without reference to any LCI Confidential Information or other information that
LCI has disclosed in confidence to any third party;
(v) It is rightfully obtained by Contractor from third parties without
being subject to obligation of confidentiality;
(vi) It is released for disclosure by LCI with its written consent; or
(vii) It is identified by LCI as no longer proprietary.
(e) Notwithstanding the return, erasure, or destruction of Confidential
Information or the termination, through completion or otherwise, of
this Agreement, the rights and obligations with respect to the
disclosure and use of Confidential Information [****]. To the extent
reasonably possible Contractor agrees to give LCI prompt notice if
Contractor becomes aware either [****]
(f) Contractor will enter into non-disclosure agreements with its
Contractor Personnel sufficient in form and substance to ensure
compliance by such Contractor Personnel with the provisions of this
Article 16; provided that in any event Contractor shall remain liable
at all times for compliance of such Contractor Personnel with this
Article for so long as they are in the employment of Contractor and a
period of six (6) months thereafter.
(g) As to any Confidential Information either disclosed by LCI to
Contractor, or developed by Contractor, prior to the effective date of
this Agreement and in connection with the Work to be performed
hereunder, Contractor agrees that: (i) where the parties entered into
an applicable separate Nondisclosure Agreement prior to such effective
date, then
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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14
such Nondisclosure Agreement shall continue to apply to such
information for the period prior to the effective date of this
Agreement and after the effective date the provisions of this Agreement
shall apply, and (ii) where an applicable separate Nondisclosure
Agreement was not entered into between the parties, all such disclosed
and developed information shall be deemed to be LCI Confidential
Information subject to the terms and conditions of this Agreement. In
any event, any such information developed by Contractor prior to the
effective date of this Agreement shall nonetheless be deemed to be part
of the Work subject to the terms and conditions of this Agreement.
(h) Contractor acknowledges that the Confidential Information under this
Agreement constitutes unique, valuable and special trade secret and
business information of LCI, and that disclosure may cause irreparable
injury to LCI. Accordingly, Contractor acknowledges and agrees that the
remedy at law for any breach or threatened breach of the covenants
contained in this Agreement may be inadequate, and in recognition,
agrees that LCI shall, in addition, be entitled to injunctive relief
without bond including reasonable attorneys' fees and other court costs
and expenses.
ARTICLE 21 - FORCE MAJEURE
(a) Neither Contractor nor LCI shall suffer any liability for
nonperformance, defective performance or late performance of the work
due to causes beyond its control such as, but not limited to, acts of
God, war (including civil war), civil unrest, acts of government, fire,
floods, explosions, the elements, epidemics, quarantine, restrictions,
strikes, lock-outs, plant shutdown. Third Party defaults (provided
Contractor has complied with Article 16(b)) or delays in
transportation. In the event of an excusable delay as defined in the
preceding sentence, then Contractor, upon giving prompt written notice
to LCI, shall be excused from such performance on a day-to-day basis to
the extent of such prevention, restriction, or interference, provided
that Contractor shall use its best efforts to avoid or remove such
causes of nonperformance and both parties shall proceed to perform with
dispatch whenever such causes are removed to cease to exist.
(b) It any performance date under this Agreement is postponed or extended
pursuant to this Section for longer than 60 calendar days, LCI may, at
its option, by written notice given during the postponement or
extension, terminate Contractor's right to render further performance
after the effective date of termination without liability for that
termination.
ARTICLE 22 - PUBLICITY
Both parties agree that no news releases, public announcements or advertising
materials, or confirmation of same, concerning any part of this Agreement or any
of its performance, or use of the other Party's name, logo or service marks in
advertising or sales materials shall be made without the prior written approval
of the other Party. Such requests shall be in writing and addressed in
accordance with the article entitled "Notices."
ARTICLE 23 - INDEPENDENT CONTRACTOR
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(a) Contractor represents and warrants that Contractor qualifies as an
Independent Contractor under the provisions of the Internal Revenue
Code's common law rules enacted as part of Section 1706 of the 1986 Tax
Reform Act, and as such Contractor is filing all required forms and
necessary payments appropriate to the Contractor's tax status. In the
event the Contractor Personnel's independent status is denied or
changed and the Contractor or Contractor Personnel are declared to have
"common law" status with respect to Work performed for LCI, Contractor
agrees to hold LCI, its parent and Affiliates harmless from all costs,
including legal fees, which LCI may incur as a result of such changes
in status.
(b) Personnel supplied by Contractor will be deemed employees of Contractor
and will not for any purposes be considered employees or agents of LCI.
Contractor shall be solely responsible for their supervision, direction
and control, as well as payment of salary (including withholding of
income taxes and social security), worker's compensation, disability
benefits and the like.
(c) Nothing contained in this Agreement shall be deemed or construed as
creating a joint venture or partnership between Contractor and LCI.
Neither Party is by virtue of this Agreement authorized as an agent,
employee or legal representative of the other. Except as specifically
set forth, neither Party shall have power to control the activities and
operations of the other and their status is, and at all times will
continue to be, that of independent contractors. Neither Party shall
have any power or authority to bind or commit the other.
ARTICLE 24 - WARRANTIES
(a) Contractor warrants that the Work provided hereunder will be performed
in a professional and workmanlike manner in accordance with the highest
professional standards in the industry, shall be free of defects in
materials and design, and that the Deliverables shall comply with the
specifications set forth in the Statements of Work for six (6) months
("the Warranty Period") from the date of Final Acceptance by LCI. This
warranty applies to the final integration of the NOC pursuant to the
specifications developed in applicable Statements of Work.
(b) Contractor further warrants that the NOC shall be Operative during the
Warranty Period.
(c) Contractor represents, warrants and agrees that no material portion of
the Work is or will be intended, other than under documented control of
LCI, (1) at some specific time or on a specific instruction or
occurrence of a given event, to stop, limit or interfere with the
operation of the Work in conformity with the specifications therefore
set forth in, or developed pursuant to, the Statements of Work, or
(2) to damage or materially alter or render inaccessible the Work, or
any other hardware, software or data which the Work id designed to
process or use, or any other hardware, software or data hardware,
software or data which the Work is designed to process or use, or
any other hardware, software or data attached to, resident on, or
accessible to the system on which the Work is executed or stored.
Contractor shall be responsible for, indemnify and hold LCI or its
Affiliates
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harmless from any damages, costs, liabilities, and/or expenses,
including attorneys' fees and other legal costs, arising out of the
breach of the foregoing.
(d) Contractor shall warrant, without limitation as to any time period,
that the Work shall not incur default problems or other errors as a
result of the century date change in the year 2000.
(e) Contractor warrants and represents that it is not currently bound by
any other agreements, restrictions or obligations, nor will Contractor
assume any such obligations or restrictions which do or would in any
way interfere or be inconsistent with the Work to be furnished by
Contractor to LCI under this Agreement.
(f) Contractor warrants and represents that it is capable of entering into
this Agreement with LCI in every and all respects.
(g) Contractor warrants and represents that it is a corporation duly
organized and in good standing under the laws of Delaware with Federal
EIN or SSN of 133808483, and is qualified to do business in the state
of Virginia.
(h) Contractor represents and warrants it has full power and authority to
enter into and perform this Agreement, and the person signing this
Agreement on behalf of Contractor has been properly authorized and
empowered to enter into this Agreement. This Agreement, when executed
by the Contractor, will constitute a legal, valid and binding agreement
and obligation of the Contractor, enforceable according to its
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, and other laws of general application
relating to creditors' rights generally and by general principles of
equity. CONTRACTOR FURTHER ACKNOWLEDGES THAT IT HAS READ THIS
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT.
(i) LCI acknowledges that Contractor will be purchasing Third-Party
Products. Contractor shall transfer to LCI any warranties offered by
third parties on such Third-Party Products. All such warranties shall
be approved by LCI prior to contracting. Contractor, however shall have
final responsibility for the installation and integration of such
Third-Party Products into the NOC if so required under the Statements
of Work.
(j) Each of the Deliverables, Updates and Enhancements and any media
used to distribute [****] of its computer and telecommunications
facilities for their commercial, test or research and development
purposes. Contractor shall indemnify LCI and hold LCI harmless from
all claims, losses, damages and expenses, including attorneys fees
and allocated cost of internal counsel, arising from the [****] or
with any [****].
**** Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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(k) THE WARRANTIES SET FORTH IN THIS ARTICLE 24 ARE IN LIEU OF ALL
WARRANTIES WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OR
MERCHANTABILITY AND FITNESS FOR INTENDED OR PARTICULAR PURPOSE.
ARTICLE 26 - MAINTENANCE SERVICES
(a) Contractor shall provide, during the Warranty Period and during all
Maintenance Period, Maintenance Services regarding the Deliverables,
which services shall be defined in the Statements of Work, and
consistent with Article B(c)(ii), available twenty-four (24) hours per
day, seven (7) days per week performed by qualified and competent
consultant(s). Contractor shall deliver to LCI and keep current a list
of persons and telephone numbers ("Calling List") for LCI to contact in
order to obtain answers to questions arising, or assistance in solving
problems or errors occurring during LCI's use of any of the Products.
The Calling List shall include (1) the first person to contact if a
person arises or problem occurs, and (2) the persons in successively
more responsible or qualified positions to provide the answer or
assistance desired. If Contractor does not respond promptly to any
request by LCI for telephone consultative service, then LCI may attempt
to contact the next more responsible or qualified person on the Calling
List until contact is made and a designated person responds to the
call.
(b) The parties acknowledge that under this agreement, LCI has ordered no
Maintenance Services, and the Maintenance Period is not defined. Such
definitions shall be made, if at all, under a separate Statement of
Work to be negotiated by the parties in good faith.
ARTICLE 26 - INSURANCE
(a) During the term of this Agreement, Contractor shall maintain insurance
of the types and in the amounts specified below with insurers of
recognized responsibility, licensed to do business in the State(s)
where the Work is the being performed, and having either an A.M.
Best's rating of AB, a Standard & Poor's ("S&P") rating of AA or a
Moody's rating of AaZ. If any Work provided for or to be performed
under this Agreement is subcontracted, Contractor shall require such
Contractor Personnel to maintain insurance equivalent to that which is
required of Contractor.
In accordance with the above, the following insurance coverages shall
be maintained by Contractor and Contractor Personnel:
(i) COMPREHENSIVE OR COMMERCIAL GENERAL LIABILITY INSURANCE:
$1,000,000 per occurrence combined single limit/$2,000,000
general aggregate and will include coverage for contractual
liability, coverage for the use of subcontractors, products
and completed operations, and will not contain an exclusion
or explosion collapse, and underground coverage.
(ii) BUSINESS AUTOMOBILE LIABILITY INSURANCE:
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Business Automobile Liability insurance including coverage for
owned, hired, leased, rented and non-owned vehicles as
follows:
$1 Million combined single limit per accident
(iii) WORKERS' COMPENSATION AND EMPLOYERS' INSURANCE:
Workers' Compensation in the statutory amount(s) and with
benefits required by laws of the state in which the Work is
performed and the state(s) in which employees are hired, if
the state(s) are other than that in which the Work is
performed. Employers' Liability with minimum limit of
liability of:
$1 Million bodily injury by accident/each accident, bodily
$1 Million injury by disease/each employee, and for bodily
$1 Million injury by disease/policy limit (aggregate).
A combination of primary and excess/umbrella liability
policies will be acceptable as a means to meet the funds
specifically required hereunder. THE REQUIRED MINIMUM LIMITS
OF COVERAGE SHOWN ABOVE, HOWEVER, WILL NOT IN ANY WAY RESTRICT
OR DIMINISH CONTRACTORS LIABILITY UNDER THIS AGREEMENT.
(iv) PROFESSIONAL LIABILITY INSURANCE:
Professional Liability Insurance coverage the effects
and errors and omissions in the performance of
professional duties in the amount of $1 Million for
each occurrence and aggregate, associated with Work
performed under this Agreement
(b) Certificates of such insurance shall be submitted to LCI naming LCI as
ADDITIONAL INSURED on such policies as appropriate, prior to the start
of any Work associated with this Agreement. These certificates shall
certify that no material alteration, modification or termination of
such coverage shall be effective without at least thirty (30) days
advance notice to LCI.
(c) Contractor shall furnish or require each Contractor Personnel to
provide and maintain at all times during the term of the Agreement
insurance equivalent to that which is required of the Contractor. All
carriers insuring Contractor Personnel, including the subcontractors,
shall waive all right to recovery against LCI for any injuries to
persons or damage to property in the execution of Work performed under
this Agreement.
(d) Contractor shall permit any authorized representative of LCI to examine
Contractor's original insurance policies should LCI so request. Should
Contractor at any time neglect or refuse or provide the insurance
required, or should such insurance be canceled or non-renewed, LCI
shall have the right to purchase such insurance, and the cost shall be
billed to Contractor. In addition, should Contractor at any time
neglect or refuse to pay the
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necessary premium, LCI shall have the right to deduct this amount from
monies due the Contractor.
(e) Contractor and Contractor Personnel shall ensure full compliance with
the terms of the Occupational Safety and Health Administration (OSHA)
and all jurisdictions' safety and health regulations during the full
term of this Agreement.
ARTICLE 27 - INDEMNIFICATION AND LIMITATION OF LIABILITY
(a) Contractor, at its own expense, shall indemnify and hold LCI, its
directors, officers, employees, agents, subsidiaries, Affiliates,
customers, designers, and assignees harmless from any loss, damage,
liability or expense, on account of damage to property and injuries,
including without limitation death, to all persons, arising from any
occurrence caused by any act or omission of Contractor Personnel
related to the performance of this Agreement. Contractor, at its own
expense, shall defend any suit or dispose of any claim or other
proceedings brought against said indemnities on account of such damage
or injury, and shall pay all expenses, including attorney's fees, and
satisfy all judgments which may be incurred by or rendered against said
indemnities.
(b) Contractor further agrees to and does hereby indemnify and hold LCI,
its directors, officers, employees, agents, subsidiaries, Affiliates,
parent, consultants and subcontractors harmless from any and all
liability, loss, damage, or injury, together with all reasonable costs
and expenses relating thereto, including attorneys' fees, arising out
of or resulting from any breach of any representation, warranty,
covenant or obligation of the Contractor contained in the Agreement.
(c) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY
KIND, INCLUDING LOST PROFITS (WHETHER OR NOT LCI OR CONTRACTOR HAS BEEN
ADVISED OF THE POSSIBILITY OR SUCH LOSS OR DAMAGE(S) BY REASON OF ANY
ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT
ARTICLE 28 - IMMIGRATION LAWS COMPLIANCE
(a) Contractor warrants, represents, covenants and agrees that it will not
assign any individual to perform Work under this Agreement who is an
unauthorized alien under the Immigration Reform and Control Act of 1986
or its implementing regulations.
(b) In the event any Contractor Personnel working under this Agreement, or
other individual(s) providing Work to LCI on behalf of Contractor under
this Agreement, are discovered to be unauthorized aliens, contractor
will immediately remove such individuals from performing Work and
replace such individuals who are not unauthorized aliens.
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(c) Contractor shall indemnify and hold harmless LCI, its parent, and
Affiliates from and against any and all liabilities, damages, losses,
claims or expenses (including attorneys' fees) arising out of any
breach by Contractor of this Article.
ARTICLE 29 - ANTIDISCRIMINATION WARRANTY AND INDEMNITY
Contractor agrees and warrants that it will:
(a) Comply with all applicable provisions and requirements of Title VII of
the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act of 1967, as amended, the Americans With Disabilities Act
of 1990, and all other applicable Federal, state, and local employment
laws and regulations; and
(b) Indemnify and hold LCI, its parent and Affiliates harmless from and
against all liabilities, claims, costs, losses, damages (including
without limitation punitive or special damages), and expenses
(including attorneys' fees and allocated in-house legal expenses)
arising out of breach of the foregoing warranty.
ARTICLE 30 - OTHER SERVICES
Each Party reserves the right to contract with other firms or individuals during
the term of this Agreement for Work similar to that being performed under this
Agreement subject to the Article entitled "Conflict of Interest."
ARTICLE 31 - TERMINATION
(a) By written notice to Contractor, LCI may immediately terminate this
Agreement, any outstanding Statements of Work or a Contractor Request,
in whole or in part, at any time prior to completion for the following
reasons:
(i) LCI's convenience;
(ii) LCI is dissatisfied with the performance of Contractor
Personnel for any reason, or
(iii) Contractor applies for or consents to the appointment of or
the taking of possession by a receiver, custodian, trustee, or
liquidator of itself or of all or a substantial part of its
property, makes a general assignment for the benefit of
creditors; commences a voluntary case under the Federal
Bankruptcy Code (as now or hereinafter in effect); or fails to
contest in a timely or appropriate manner or acquiesces in
writing to any petition filed against it in an involuntary
case under such Bankruptcy Code or any application for the
appointment of a receiver, custodian, trustee or liquidation
of itself or of all or a substantial part of its property, or
its liquidation, reorganization or dissolution.
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(b) In the event of termination under this Article, in accordance
with the Article entitled "Price and Payment," LCI shall be
liable for payment only for Work performed prior to the
effective date of the termination notice and for any items
referred to in the provision of Article 5(i). In no event
shall LCI be liable for anticipated profit on Work not
performed.
(c) In the event of termination under this Article, and regardless
of any dispute which may exist between Contractor and LCI, all
LCI Property and materials in Contractor's possession,
including any and all related documents in the possession of
Contractor and/or Contractor Personnel, shall be delivered to
LCI.
(d) Contractor shall continue performance of any portion of the
Statements of Work not terminated. LCI shall have no
obligation to Contractor with respect to any terminated
portions of this Agreement except as provided in this
Agreement.
ARTICLE 32 - ASSIGNMENT
Neither party shall assign any of its rights nor designate any of its
obligations under this Agreement without the prior written consent of the other
party or as provided herein. Any prohibited assignment or delegation shall be
null and void. LCI may assign this Agreement and any licenses to any company or
entity controlling, controlled by or under common control of its Affiliates.
Subject to the Article of this Agreement entitled "Contractor's Responsibility,"
the respective rights and obligations provided in this Agreement shall bind and
inure to the benefit of the Parties, their legal representatives, successors and
assigns.
ARTICLE 33 - WAIVER
The failure of either Party to insist on the strict performance of any terms,
covenants and conditions of this Agreement at any time, or in any one or more
instances, or its failure to take advantage of any of its rights shall not be
construed as a waiver or relinquishment of any such rights or conditions at any
further time and shall in no way affect the continuance in full force and effect
of this Agreement.
ARTICLE 34 - HEADINGS
Headings used in this Agreement are for convenience of reference only and shall
not be construed as altering the meaning of an Article or this Agreement.
ARTICLE 35 - ORDER OF PRECEDENCE
In the event of any inconsistency between provisions of this Agreement and any
document issued under this Agreement, the inconsistency shall be resolved by
giving precedence in the following order:
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(a) Terms and Conditions of this Agreement
(b) Statements of Work
The terms of the Agreement shall prevail over any conflicting terms of any LCI
acknowledgment of a Statement of Work.
ARTICLE 36 - APPLICABLE LAW
This Agreement shall be interpreted, construed, and governed by the laws of the
State of Virginia, without regard to conflict of law provisions.
ARTICLE 37 - CONTRACTUAL ISSUES
(a) All contractual matters related to this Agreement, including but not
limited to discussions concerning Work outside the scope of this
Agreement, shall be coordinated with the Authorized LCI Representative.
Contractor further understands that any verbal agreement or written
agreement reached with or signed by any LCI employee other than the
designated Authorized LCI Representative, is null and void and does not
obligate LCI in any manner.
(b) All payment related issues should be referred to the LCI Authorized
Representative specified on the Task Order.
ARTICLE 38 - NOTICES
All notices, requests, demands, or communications requited or permitted shall be
in writing and delivered personally or by fax, LCI Mail or certified,
registered, or express mail at the respective addresses set forth below. All
notices, requests, demands or communications shall be deemed effective upon
personal delivery, on the day of the fax or LCI Mail, or when received if sent
by registered, certified, or express mail.
LCI: LCI International
5150 Greensboro Drive
Suite 800
McLean, VA 22102
ATTN: General Counsel
Facsimile: (703) 714-1750
Contractor: Predictive Systems, Inc.
620 Herndon Parkway
Suite 360
Herndon, VA 20170
ATTN: Thomas Joseph
Facsimile: (703) 925-1899
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ARTICLE 39 - PRIOR WORK
Contractor acknowledges and agrees that Work was provided to LCI prior to the
Effective Date of this Agreement in anticipation of the execution of this
Agreement. Contractor acknowledges and agrees that the purchase of such Work was
and is subject to the terms hereof.
ARTICLE 40 - ENTIRE UNDERSTANDING
This Agreement shall become binding when signed by both Parties. This Agreement
constitutes the entire understanding of the Parties, and supercedes all prior
and contemporaneous written an oral agreements, with respect to the subject
matter. This Agreement may not be modified or amended except in writing signed
by both Parties. Any person not a Party shall not have any interest or be deemed
a third party beneficiary.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective date first written above.
LCI INTERNATIONAL MANAGEMENT SERVICES, INC. PREDICTIVE SYSTEMS, INC.
Signature: /s/ L.J. Bowman Signature: /s/ Carl D. Humes
-------------------------------- ---------------------------------------------
Name: L.J. Bowman Name: Carl D. Humes
------------------------------------- --------------------------------------------------
Title: SVP Title: Vice President, Technical Services, Mid-Atlantic
------------------------------------ -------------------------------------------------
Date: 5/22/98 Date: 5/21/98
------------------------------------- --------------------------------------------------
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