1
Exhibit 10.02
Confidential treatment with respect to certain information in this Exhibit has
been requested of the Securities and Exchange Commission pursuant to Rule 24b-2
under the Securities Exchange Act of 1934, as amended. The bracketed portions
of this Exhibit have been omitted from material filed in accordance with Rule
24b-2 and have been filed separately with the Commission.
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Agreement No. 970050785
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AGREEMENT
This Agreement is made by and between U S WEST Business Resources, Inc. with
offices for transaction of business located at 188 Inverness Drive West,
Englewood, CO 80112, as agent for the U S WEST Company(is) identified herein
("Customer"), and Carnegie Group, Inc. with offices for transaction of business
located at Five PPG Place, Pittsburgh, PA 15222 ("Supplier").
RECITALS
Customer and Supplier entered into a General License Agreement (the "1992 GLA")
on December 17, 1992, as amended, the term of which expires on July 1, 1997.
Customer and Supplier desire to terminate the 1992 GLA on and as of the
effective date, as hereinafter defined in Article 2, of this Agreement.
In consideration of the mutual covenants and agreements contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
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GENERAL TERMS AND CONDITIONS
1. DEFINITIONS: The terms defined herein shall have the meanings set forth
below.
1.1 "Acceptance," if applicable, is defined in the Special Provisions Module(s).
1.2 "Agreement" means this written contract between Customer and Supplier,
including the General Terms and Conditions and all Special Provisions Modules,
together with Schedule(s), exhibits, any other attachments, Order(s), and
amendments to this Agreement.
1.3 "Confidential Information" is defined in Article 6.
1.4 "Customer" means U S WEST Communications Group, Inc. Customer shall also
have the right to designate Affiliate(s) who may purchase under this Agreement
as Customer, and such Affiliate(s) shall become additional Customer(s) under
this Agreement upon Customer's written notice to Supplier. For purposes of this
paragraph 1.4, "Affiliate" means any entity which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, Customer. For purposes of this paragraph 1.4, "control"
means (i) in the case of corporate entities, direct or indirect ownership of
twenty percent (20%) or more of the stock or shares entitled to vote for the
election of the board of directors or other governing body of the entity; and
(ii) in the case of non-corporate entities, direct or indirect ownership of
twenty percent (20%) or greater of the equity interest.
1.5 "Deliver" ("Delivery") means Customer's receipt of Purchases at the
location specified in any Order(s) or in this Agreement.
1.6 "Documentation" means tangible or intangible information necessary for the
use, planning, engineering, installation, operation and maintenance of
Purchases, including but not limited to: Specifications, user manuals, test
data, flow charts, data file listings, loading and unloading procedures,
machine configuration information, programs, routines, subroutines, or related
information.
1.7 "Error" is defined in Article 1.4 of the Special Provisions Module--Software
License and Services.
1.8 "Liabilities" shall mean all liabilities, claims, judgments, losses,
orders, awards, damages, costs, fines, penalties, costs of defense, and
attorneys' fees.
1.9 "Order(s)" means a written or electronic offer by Customer which shall be
deemed to incorporate all provisions of this Agreement.
1.10 "Product(s) means those goods, supplies, materials, articles, items,
parts, components, assemblies, and the incidental associated Software, listed
and/or described in this Agreement or any
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
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Agreement No. 970050785
Module(s), Schedule(s), Order(s) and/or other attachments to this Agreement.
1.11 "Purchases" means all Product(s), Software and/or Services described in
this Agreement, Module(s), or on Schedule(s), Order(s) and/or other attachments
to this Agreement.
1.12 "Schedule(s)' means a written instrument made part of this Agreement
describing such things as the Purchase(s), price, Specifications, warranty
terms and related shipping and delivery instructions.
1.13 "Services" means any work performed by or for Supplier under this
Agreement, including any deliverables resulting from or incidental to the
Services, as listed and/or described in this Agreement, Module(s), or any
Schedule(s), Order(s) and/or other attachments to this Agreement.
1.14 "Software" means computer programs as listed and/or described in this
Agreement, Module(s) or any Schedule(s), Order(s) and/or other attachments to
this Agreement, and the related Documentation. "Software includes, without
limitation, all versions and all updates, enhancements and corrections,
together with operating instructions, user manuals, training materials and
other Documentation. "Software" does not include source code or proprietary
design documentation, unless otherwise agreed to in writing by the parties.
1.15 "Special Provisions Module(s)" or "Module(s)" means, as applicable, the
Special Provisions Module-Software License and Services, and/or the Special
Provisions Module-Services, and/or the Special Provisions Module-Product(s),
and/or any other similar set of provisions which are attached to the General
Terms and Conditions and form part of this Agreement.
1.16 "Specifications" means technical, functional, operational and other
criteria and/or performance requirements for Purchases, in any medium, which
criteria and/or requirements are referenced in or made part of this Agreement,
and schematics, prototypes, models, Supplier's proposals and literature, and/or
Documentation furnished to Customer.
2. TERM: This Agreement shall be effective as of July 1, 1997 and shall
continue through June 30, 1999. This Agreement shall thereafter automatically
renew for successive periods of one (1) year each unless a party gives written
notice of intention to terminate at least one hundred twenty (120) days before
the end of any term, or this Agreement is terminated or canceled under Articles
21 or 22. The Special Provisions Modules, Schedules and/or other parts of this
Agreement may specify a different term(s) applicable specifically to that
portion of this Agreement. If any such specific term continues beyond this
Agreement, the General Terms and Conditions and other applicable provisions of
this Agreement shall continue to govern that portion of this Agreement.
3. INVOICES, PAYMENTS, SETOFF, TAXES:
3.1 Supplier shall issue invoices in the format required by Customer within
thirty (3) days following Delivery of Products or Software or completion of
Services, which itemize all charges, costs, taxes and Software license fees
separately. No term or condition of any invoice shall be binding upon Customer,
and Customer hereby objects to any terms inconsistent with or additional to the
terms and conditions of this Agreement.
3.2 Correct and undisputed amounts on invoices shall be paid within thirty (30)
days following receipt of the invoice and following Delivery of Products or
Software or completion of Services, unless otherwise provided in a Schedule or
other attachment. Notwithstanding the foregoing, payment shall not be due then
if on or before the due date Customer notifies Supplier of rejection or
non-Acceptance of Purchase(s). Disputed amounts on invoices shall be paid
within thirty (30) days after resolution of dispute. Supplier agrees to provide
to Customer reasonable supporting documentation concerning any disputed amount
within thirty (30) days after Customer notifies Supplier of the dispute.
3.3 Credits due to Customer may be applied against amounts owed to Supplier. If
no amounts are owned by Customer to Supplier, Supplier shall issue payment
within thirty (30) days of Customer's written request.
3.4 Payment shall not constitute Acceptance or approval of the Purchases or a
waiver by Customer of any right to require fulfillment of all terms and
conditions of this Agreement.
3.5 The act of submission of an invoice constitutes Supplier's certification
that all claims, liens and causes of action, if any, for the payment of wages
or salaries or the payment of charges for materials, tools, machinery or
supplies have been satisfied, released or settled. Customer reserves the right
before making payments to require Supplier to furnish sufficient evidence that
all claims, liens and causes of action have been satisfied, released or
settled. If satisfactory evidence is not furnished, the amount of such claims,
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
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Agreement No. 970050785
liens and causes of action may be withheld from any monies otherwise payable to
Supplier hereunder until such evidence of payment or a bond to indemnify
Customer against any such claims, liens, and causes of action has been
furnished.
3.6 All claims for monies due from Customer shall be subject to deduction or
setoff by Customer for any claim arising out of any transaction with supplier.
3.7 All taxes imposed or based on the Purchase(s) and/or the fees and charges
for Purchase(s) which would be paid or payable by Supplier (excluding taxes
based on Supplier's income) shall be added to the invoice and paid by Customer.
4. RECORDS: Supplier shall maintain complete and accurate records of all
amounts billable to and payments made by Customer hereunder in accordance with
recognized accounting practices. Supplier shall retain such records for a
period of four (4) years from the date of payment for Purchases covered
thereby. During the terms of this Agreement and the respective periods in which
Supplier is required to maintain such records, Customer and its authorized
agents and representatives shall have access to such records for purposes of
audit during Supplier's normal business hours.
5. WARRANTIES:
5.1 Supplier warrants that it has all rights, title, and interest, free of all
liens and encumbrances, in and to all Product(s) and Software sold, leased or
licensed to Customer; except that for Software which is not owned by Supplier,
Supplier warrants that it has the right to grant the licenses granted
hereunder.
5.2 Supplier warrants that Purchases shall substantially conform in
all material respects to all descriptions, Specifications, statements of work,
representations, and other requirements set forth in this Agreement, Module(s),
Schedule(s) and/or any Order(s). Supplier further warrants it will use
commercially reasonable efforts to perform Services with promptness and
diligence to the reasonable satisfaction of Customer.
5.3 Any specific warranty provisions are set forth in the Special Provisions
Module(s) and/or Schedule(s).
5.4 Supplier represents and warrants that the Products and Software will
record, store, process, calculate and present calendar dates falling on and
after (and if applicable, spans of time including) January 1, 2000, and will
calculate any information dependent on or relating to such dates in the same
manner, and with the functionality, data integrity and performance, as the
Products and Software record, store, process, calculate and present calendar
dates on or before December 31, 1999, or calculate any information dependent on
or relating to such dates ("2000 Compliant"). Supplier represents and warrants
that the Products and Software (1) will lose no functionality with respect to
the introduction of records containing dates falling on or after January 1,
2000. Upon request by Customer, Supplier agrees to provide a test script to
validate that the Products and Software are 2000 Compliant. The warranties and
representations in this paragraph are not subject to any limited or specific
warranty periods in the General Terms and Conditions, or in any Special
Provisions, Module(s) and/or Schedule(s). Supplier shall have no responsibility
or liability for any Customer or third party products that present improper
date data or improperly process, store or calculate date data received from the
products provided by Supplier. However, the Software will be interoperable
from a date data perspective with third party products that are year 2000
Compliant.
5.5 Warranties will not be affected by removal, relocation, or resale of
Product(s), and warranties shall survive inspection, Acceptance and payment.
Warranties shall run to Customer, its agents, successors in interest, assigns
and customers.
5.6 If Supplier is not the manufacturer or licensor, or, with respect to
Software, the owner, Supplier shall obtain the same warranty as specified
herein from the manufacturer, licensor or owner, and the complete warranty will
pass to Customer. Supplier shall have primary responsibility for and shall
assist and cooperate with Customer in making claims under such warranty.
5.7 Subject to the provisions of this Section 5, Supplier shall promptly
correct or make good non-conforming Purchases, to the reasonable approval and
acceptance of Customer, at no cost to Customer. In the event an Error in the
Software is reported by Customer to Supplier and such Error causes the Software
to not conform to the provisions of Sections 5.2 or 5.3 hereof, then Supplier
shall take the applicable action as set forth below with regard to such Error.
5.7.1 Pursuant to Section 5.3 hereof, Supplier shall correct such Error in
accordance with any specific warranty provisions set forth in the Modules
and/or Schedules. If such Module and/or Schedule provide a time period in which
the Software or portion thereof associated with such Module and/or Schedule is
warranted and such time has not expired, but such Module and/or Schedule does
not provide a process for correcting Errors in the Software or portion thereof,
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
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then Supplier shall correct such Errors in accordance with the Error correction
procedures set forth in the Schedule for Software Support and Maintenance
Services, or as otherwise agreed to by the parties.
5.7.2 If such Software or portion thereof in which the Error occurs is not
covered under any specific warranty provisions set forth in the Module and/or
Schedule and such Software or portion thereof in which the Error occurred was
delivered by Supplier to Customer within ninety (90) days of the date on which
Customer notified Supplier of such Error, then Supplier shall correct such
Error in accordance with the terms and conditions of the Schedule for Software
Support and Maintenance Services or as otherwise agreed to, at no charge to
Customer.
5.7.3 If (a) the Module and/or Schedule states that no warranty is provided for
the Software or portion thereof in which the Error occurred or the Software or
portion thereof is provided "AS IS," or (b) pursuant to Sections 5.7.1 or 5.7.2
above, the warranty period associated with the Software or portion thereof in
which the Error occurred has expired, then Supplier may, at it option, provide
a correction to the Error.
5.8 These Warranties are not sole and exclusive but are in addition to, and do
not limit, any rights afforded to Customer by this Agreement or as provided by
law.
6. CONFIDENTIAL INFORMATION
6.1 Confidential information shall mean any technical or business information,
including third-party information, marked as confidential or proprietary and
furnished, disclosed or made available in connection with this Agreement, in
any form or medium, by one party to the other, including, without limitation,
Specifications, prototypes, Software, models, drawings, marketing plans,
financial data and personnel statistics. Confidential Information in oral form
must be identified as confidential at the time of disclosure and confirmed as
such in writing within thirty (30) days of such disclosure. Confidential
Information does not include information which (1) the recipient knew or had in
its possession, prior to disclosure, without confidential limitations; (2) is
independently developed by the recipient without breach of this Agreement; (3)
becomes publicly available without breach of this Agreement; (4) is received
rightfully from a third party and without obligation of confidentiality; or (5)
is disclosed without restriction by the disclosing party. This Agreement shall
not be construed to limit Supplier's rights to independently develop or acquire
products without use of the Customer's Confidential Information. Further,
Supplier shall be free to use for any purpose the residuals resulting from
access to work with such Customer Confidential Information, provided that
Supplier maintain the confidentiality of the Customer Confidential Information
as provided herein. The term "residuals" means non-tangible skills which may be
gained by persons who have had access to the Customer Confidential Information,
including programming skills and techniques contained therein. Supplier shall
have no obligation to limit or restrict the assignment of such persons or to
pay royalties for any work resulting from the use of residuals. Supplier agrees
that such persons shall be bound by the confidentiality provisions of this
Agreement. However, the foregoing shall not be deemed to grant Supplier a
license under Customer's copyrights or patents.
6.2 If the parties deem it necessary and request to receive Confidential
Information from each other, the parties agree:
6.2.1 To maintain and use Confidential Information only for the purposes of
this Agreement and only as permitted herein. To only make copies as
specifically authorized and with the same confidential or proprietary notices
as are on the original.
6.2.2 To restrict access and disclosure of Confidential Information to their
employees, agents and contractors who have a "need to know" and who agree to
maintain confidentiality in accordance with this Article.
6.2.3 To treat Confidential Information as confidential for a period of three
(3) years from the date of receipt.
6.3 Confidential Information shall at all times remain the property of the
disclosing party. Upon request, Confidential Information shall be returned to
the disclosing party upon termination, cancellation or expiration of this
Agreement.
6.4 Except as may be required by applicable law, regulations, legal or agency
order, demand or process, neither party shall disclose to a third party any
Confidential Information or the contents of this Agreement without the prior
written consent of the other party. In the case of required disclosures, the
owner of Confidential Information shall, to the extent reasonably possible, be
given notice prior to the disclosure and an opportunity to seek an appropriate
protective order. The obligations of this Article shall be satisfied by
handling Confidential Information with the same degree of care which the
receiving party applies to its own similar confidential information but in no
event less than reasonable care. Customer's
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
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liability under this Article shall be subject to the same limitations as set
forth in Article 22.4. The obligations of this Article shall survive the
expiration, cancellation or termination of this Agreement.
7. OWNERSHIP:
7.1 "Work Product(s)" means all information, materials, products, Software,
drawings, specifications, reports, proposals, and any other items, and
inventions, discoveries, concepts and the like, in any medium, developed,
prepared or originated by or for Supplier specifically for Customer at
Customer's request in connection with Purchase(s) under this Agreement. Unless
otherwise expressly provided in application Schedule(s) or other attachments,
Work Product(s) shall be the property of Customer and Customer shall have all
right, title and interest in and to the Work Product(s), and they shall be
deemed to be works made for hire. Supplier hereby assigns to Customer all
rights, title and interest in and to those Work Product(s) which by law are not
considered to be works made for hire. All such items shall be considered
Customer's "Confidential Information" under this Agreement whether or not so
marked. If such Work Product(s) include materials previously prepared by
Supplier or a third party and not originally prepared for Customer in
connection with Purchase(s), Supplier hereby grants to Customer a non-exclusive
royalty-free, perpetual license to copy, use, disclose, modify and sublicense
such material for any lawful purpose. For portions of the Work Product(s) that
are provided by third parties, Supplier shall grant Customer a sublicense to,
or assist Customer in obtaining a license for, the portions of the Work
Product(s) provided by such third parties.
7.2 "Other Intellectual Property" means inventions, discoveries, improvements,
concepts, methods, processes, ideas, information, software, and other
intellectual property which is not deemed to be "Work Product(s)", but which is
originated, developed or prepared in connection with Purchase(s) under this
Agreement. Unless otherwise expressly provided in applicable Schedule(s) or
other attachments, "Other Intellectual Property" which is originated, developed
or prepared: (1) by employees of one party shall belong to that party; and/or
(2) jointly by employees of both parties shall belong jointly to both, and each
party hereby grants the other an unrestricted, non-exclusive, royalty-free,
perpetual license to copy, use, disclose and sublicense such jointly developed
Other Intellectual Property in connection with its business.
7.3 At the request and expense of Customer, Supplier will assist Customer and
sign all appropriate documents, during and after the term of this Agreement, to
enable Customer to obtain intellectual property protection for its interests in
Work Product(s) and/or Other Intellectual Property. Customer will, at the
request and expense of Supplier, provide the same assistance to Supplier with
respect to Other Intellectual Property owned by Supplier. The assisting party
will not charge any fees or other charges of any kind in connection with such
activities. Supplier shall obtain from its employees, consultants or other
representatives who perform work hereunder, appropriate assignments and/or
rights to ensure that Supplier is authorized to grant the rights provided to
Customer hereunder.
7.4 Neither party grants the other party any express or implied licenses under
any patents, copyrights or trademarks, except to the extent necessary for each
party to fulfill its obligations to the other under this Agreement.
7.5 Each party agrees to promptly notify the other party in writing upon the
discovery or learning by a party of a potential or actual infringement of any
intellectual property rights of the other party.
8. INDEPENDENT CONTRACTOR:
8.1 SUPPLIER WARRANTS AND AGREES THAT IT IS ENGAGED IN AN INDEPENDENT BUSINESS
AND THAT ITS EMPLOYEES AND AGENTS WILL PERFORM UNDER THIS AGREEMENT AS
INDEPENDENT CONTRACTORS AND NOT AS AGENTS OR EMPLOYEES OF CUSTOMER; AND THAT IT
WILL MAINTAIN COMPLETE CONTROL OVER PERFORMANCE BY ITS EMPLOYEES, AGENTS AND
SUBCONTRACTORS. CUSTOMER IS NOT LIABLE FOR DEBTS OR EXPENSES INCURRED BY
SUPPLIER, ITS EMPLOYEES, AGENTS AND SUBCONTRACTORS. NOTHING IN THIS AGREEMENT
OR ANY SUBCONTRACT SHALL CREATE ANY CONTRACTUAL RELATIONSHIP OR LIABILITIES
BETWEEN ANY AGENT OR SUBCONTRACTOR AND CUSTOMER. SUPPLIER SHALL BE RESPONSIBLE
FOR ITS OWN ACTS AND THOSE OF ITS AGENTS, EMPLOYEES AND SUBCONTRACTORS IN
CONNECTION WITH PERFORMANCE OF THIS AGREEMENT.
8.2 SUPPLIER WILL BE SOLELY RESPONSIBLE FOR ALL MATTERS RELATING TO PAYMENT OF
ITS EMPLOYEES, INCLUDING COMPLIANCE WITH WORKERS' COMPENSATION, UNEMPLOYMENT,
DISABILITY INSURANCE, SOCIAL SECURITY WITHHOLDING, AND ALL OTHER FEDERAL, STATE
AND LOCAL LAWS, RULES AND REGULATIONS GOVERNING SUCH MATTERS. SUPPLIER AND ITS
EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS AS A RESULT OF
PERFORMING UNDER THIS AGREEMENT UNLESS UNEMPLOYMENT COMPENSATION COVERAGE IS
PROVIDED BY SUPPLIER. SUPPLIER IS RESPONSIBLE FOR AND SHALL
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
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Agreement No. 970050785
PAY ALL ASSESSABLE FEDERAL AND STATE INCOME TAX ON AMOUNTS PAID UNDER THIS
AGREEMENT.
9. SUBCONTRACTORS: Supplier shall obtain Customer's written consent, which
consent will not be unreasonably withheld, prior to subcontracting any
obligations hereunder. Such requirement shall not apply to purchases of
incidental, standard commercial supplies or raw materials.
10. PLANT AND WORK RULES: Each party while on the premises of the other shall
comply with all plant rules and regulations including, where required by
governmental regulation, submission of satisfactory clearance from the
appropriate governmental authorities.
11. INDEMNITY:
11.1 Supplier shall indemnify and hold harmless Customer, its owners, parents,
subsidiaries, affiliates, agents, directors and employees against all
Liabilities to the extent they arise from or it in connection with: (1) the
fault or negligence of Supplier, its officers, employees, agents,
subcontractors and/or representatives; and/or (2) failure by Supplier, its
officers, employees, agents, subcontractors and/or representatives to comply
with Article 19 "Compliance with Laws"; and/or (3) assertions under workers'
compensation or similar employee benefit acts by Supplier or its employees,
agents, subcontractors, or subcontractors' employees or agents.
11.2 Customer shall indemnify and hold harmless Supplier, its owners, parents,
subsidiaries, affiliates, agents, directors and employees against all
Liabilities to the extent they arise from or in connection with: (1) the fault
or negligence of Customer, its officers, employees, agents, subcontractors
and/or representatives; and/or (2) failure by Customer, its officers,
employees, agents, subcontractors and/or representatives to comply with Article
19 "Compliance with Laws", and/or (3) assertions under workers' compensation or
similar employee benefit acts by Customer or its employees, agents,
subcontractors, or subcontractors' employees or agents. Customer's liability
under this Article shall be subject to the same limitations as set forth in
Article 22.4.
12. PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INDEMNIFICATION:
12.1 Supplier shall, at its expense, hold harmless, and defend Customer, its
owners, parents, subsidiaries, affiliates, agents, directors, and employees
against all Liabilities that arise from or in connection with any infringement
or claim of infringement of any patent, trademark, copyright, trade secret or
other intellectual property right, relating to the Purchases and/or the use
thereof. Customer may have its own counsel participate in the defense of any
such claim or action at its expense. Supplier shall not be liable for any
infringement where Purchase has been combined with another product or modified
by Customer or any third party without authorization and where the claim of
infringement would not have occurred but for such unauthorized combination or
modification. Customer agrees to notify Supplier promptly in writing of any
claim to permit Supplier to defend, compromise and settle such claim, and to
provide reasonable assistance to Supplier at Supplier's expense.
12.2 If any Purchase becomes, or in Supplier's reasonable opinion is likely to
become, the subject of a preliminary or final order or judgement against
Customer's use of any Purchase(s) due to such a claim of infringement, Supplier
shall, at its expense, either procure the right for Customer to continue using
such Purchase(s) or replace or modify the same so as to become non-infringing,
while remaining compatible, functionally equivalent and in conformity with the
requirements of this Agreement. If neither of the foregoing alternatives is
reasonably possible, Supplier shall refund to Customer an appropriate pro rata
portion of amounts paid pursuant to this Agreement and reimburse Customer for
all reasonable expenses of removal and replacement.
13. INSURANCE: Supplier shall, at all times during the term of this Agreement,
at its own cost and expense, carry and maintain at a minimum, the insurance
coverage listed below with insurers having a "Best's" rating of at least
B+XIII. Supplier shall not commence any work hereunder until Supplier has
fulfilled all insurance requirements herein. Supplier shall require its
subcontractors and agents to maintain the same insurance coverage listed below.
13.1 Workers' Compensation insurance with statutory limits as required in the
state(s) of operation; and providing coverage for any Supplier employee
entering onto Customer premises, even if not required by statute. Employers'
Liability or "Stop Gap" insurance with limits of not less than $100,00 each
accident.
13.2 Commercial General Liability Insurance covering claims for bodily injury,
death, personal injury or property damage occurring or arising out of the
performance of this Agreement, including coverage for independent contractor's
protection (required if any
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
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work will be subcontracted), premises-operations, products/completed operations
and contractual liability with respect to the liability assumed by Supplier
hereunder. The limits of insurance shall not be less than:
Each Occurrence $1,000,000.00
General aggregate Limit $2,000,000.00
Products-Completed
Operations Limit $1,000,000.00
Personal and Advertising
Injury Limit $1,000,000.00
13.3 Errors and Omissions/Professional Liability insurance covering errors and
omissions of the Supplier with limits of not less than $1,000,000 per
occurrence and endorsed to provide coverage for contractual liability with
respect to liability assumed by Supplier hereunder. Such insurance shall
provide a retroactive date prior to the date of this Agreement and an extended
claims reporting period of not less than three (3) years after the termination
of this Agreement.
13.4 Comprehensive Automobile Liability Insurance covering ownership, operation
and maintenance of all owned, non-owned and hired motor vehicles used in
connection with the performance of this Agreement, with limits of at least
$1,000,000 per occurrence for bodily injury and property damage.
13.5 The insurance limits required herein may be obtained through any
combination of primary and excess or umbrella liability insurance. Supplier
shall forward to Customer certificates of such insurance upon execution of this
Agreement and upon any renewal of such insurance during the term of this
Agreement. The certificate(s) shall provide that (1) Customer (including all
participating affiliates) be named as an additional insured(s) as their
interest may appear with respect to this Agreement; (2) thirty (30) days prior
written notice of cancellation, material change or exclusions in the policy
shall be given to Customer; and (3) coverage is primary and not excess, or
contributory with, any other valid and collectible insurance purchased or
maintained by Customer.
13.6 Any additional or different insurance requirements shall be specified in
Module(s), Schedule(s) or Attachment(s) to this Agreement.
14. ADVERTISING; PUBLICITY: Neither party shall use the other party's names,
marks, codes, drawings or Specifications in any advertising, promotional
efforts or any publicity of any kind without the prior written permission of
such other party.
15. ASSIGNMENT:
15.1 This Agreement shall be binding upon the parties' respective successors
and permitted assigns. Neither party may assign or delegate this Agreement
and/or any of its rights and obligations hereunder without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
Any such attempted assignment shall be void. However, Customer may assign this
Agreement and delegate any of its rights and/or obligations hereunder to its
parents, Affiliates of its parents, or other Affiliates, without the consent of
Supplier. For purposes of this Section 15, the definition of "control" used in
Section 1.4 of this Agreement shall apply, except that the ownership level for
control shall be established at fifty percent (50%) rather than at twenty
percent (20%). Any assignment of amounts payable is void to the extent that it
attempts to impose on Customer obligations to the assignee, or to preclude
Customer from dealing solely and directly with Supplier in all matters under
this Agreement. Either party to this Agreement may transfer this Agreement to
the purchaser of all or substantially all of the assets or equity of such party
or to the surviving party of a merger or consolidation, and the transferring
party agrees to notify the other party to this Agreement upon the occurrence of
such transfer.
16. FORCE MAJEURE: Neither party shall be liable for failure to perform solely
caused by unforeseeable force majeure circumstances beyond their control
("Force Majeure"). If such circumstances occur, the party injured by the
other's inability to perform may elect to: (1) terminate this Agreement in
whole or in part; or (2) suspend the Agreement, in whole or in part, for the
duration of the Force Majeure circumstances; or (3) terminate any affected
Order(s) and delete the canceled quantity from its committed quantity for the
year in which the canceled quantity was to have been purchased. The party
experiencing the Force Majeure circumstances shall cooperate with and assist
the injured party in all reasonable ways to minimize the impact of such
circumstances on the injured party, including assisting in location and
arranging for substitute Purchases.
17. TIME IS OF THE ESSENCE: Performance according to the dates specified in
Schedule(s) is a significant and material term hereof.
18. WAIVER: The failure of either party to exercise any right shall not be
construed to be a waiver unless agreed upon in writing. A waiver in any one
instance will not constitute an amendment to this Agreement or
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WHO HAVE A NEED TO KNOW.
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Agreement No. 970050785
indicate any continued waiver of such right on any other occasion.
19. COMPLIANCE WITH LAWS:
19.1 Supplier shall obtain and maintain at its own expense all permits and
licenses and pay all fees required by law with respect to any Purchases and/or
performance of this Agreement. The parties shall, in connection with
performance of and Purchases under this Agreement, comply with all applicable
federal, state, and local laws, ordinances, rules, regulations, court orders,
and governmental or regulatory agency orders ("Laws"), including, without
limitation:
19.1.1 The Telecommunications Act of 1996 and all rules, regulations and orders
issued in connection with that Act and this Agreement shall, to the greatest
extent possible, be construed to be consistent with the same;
19.1.2 Laws relating to non-discrimination in employment, fair employment
practices, equal employment opportunity, employment opportunities for veterans,
non-segregated facilities, and/or employment of the disabled, except to the
extent a party is exempt therefrom; and the Laws and contract clauses required
by those Laws to be made a part of this Agreement are incorporated herein by
this reference;
19.1.3 The Laws referred to in Article 8 "Independent Contractor";
19.1.4 The U.S. Export Administration Laws, including without limitation, Laws
prohibiting the export or re-export of certain items to residents of countries
listed in Section 779.4(f), U.S. Export Administration Regulations (as
amended), unless properly authorized;
19.1.5 The Occupational Safety and Health Act of 1970 (as amended) and all
other Laws relating to safety and health, including applicable motor carrier
safety regulations. Supplier shall be solely responsible for its safety, the
safety of its employees, its subcontractors and agents, and its general work
area, and the safety of Purchases hereunder so that all Purchases comply with
safety and health Laws when used or performed. Supplier shall promptly remedy
any non-compliance and indemnify and hold Customer harmless from any penalty,
fine or Liabilities in connection therewith; and
19.1.6 The Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (as amended), and all other Laws relating to that Act, and all
other applicable environmental Laws, including Laws relating to hazardous
materials, asbestos or toxic items. Supplier shall furnish Customer with
Material Safety Data Sheets that comply with Laws and other environmental
compliance data requested by Customer and as may be applicable to Supplier.
19.2 The requirements of this Article 19 shall survive the expiration,
termination or cancellation of this Agreement. All provisions of this Article
shall also apply to all subcontractors and similar terms shall be included in
all Supplier's contracts with subcontractors.
20. SEVERABILITY: Any term or provision of this Agreement which is held to be
invalid, void, unenforceable or illegal will in no way affect, impair or
invalidate the remaining terms or provisions, which will remain in full force
and effect, consistent with the original intent of the parties. However, if
such provision is an essential element of the Agreement, the parties shall
promptly attempt to negotiate a substitute therefore.
21. TERMINATION OF AGREEMENT OR ORDER(S):
21.1 Customer shall have the right to terminate this Agreement and/or any
Order(s), in whole or in part, upon thirty (30) days written notice to
Supplier. Upon receipt of notice of termination, Supplier shall place no
further orders, terminate contracts, take such action as directed by Customer,
and cease work, all in accordance with Customer's notice.
21.2 Supplier's remedies for termination under this Article 21 shall be limited
to: (1) payment pursuant to the prices set forth in the Agreement for Purchases
properly performed or Delivered in accordance with this Agreement prior to
termination; and (2) partial payment for Purchases priced by flat fee based on
the percentage of proper completion in accordance with this Agreement at the
time of termination. Customer shall have no further liability to Supplier as a
result of the termination.
22. CANCELLATION OF AGREEMENT FOR DEFAULT:
22.1 Either party may cancel this Agreement and/or any Order(s), in whole or in
part, without liability, by giving written notice of breach or default if the
other (1) becomes insolvent, unable to pay debts when due, or the subject of
bankruptcy proceedings not terminated within thirty (30) days of any filing; or
makes a general assignment for the benefit of creditors; or if a receiver is
appointed for substantially all of its property; or (2) materially breaches or
defaults on its obligations under this Agreement and, if the breach or default
can be cured, fails to cure the breach or default within thirty
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(30) days after receipt of written notice to cure; or (3) commits breaches on
obligations other than payment, repetitively, or at least three separate
significant times within any four-month period. Customer may cancel any Order(s)
in whole or in part, without liability, if Supplier fails to Deliver conforming
Purchases under that Order on time. Customer shall promptly pay Supplier for all
Purchases completed and Accepted prior to cancellation.
22.2 If Services are being provided, Customer shall have the right to take over
and complete the Services at Supplier's expense.
22.3 If Customer cancels this Agreement and/or any Order(s) for Supplier's
default or breach, it shall be entitled to recover from Supplier all losses,
damages and expenses incurred as a result of Supplier's default or breach.
Supplier shall refund to Customer amounts previously paid for Purchases which,
due to such cancellation, cannot reasonably be used by Customer, and shall bear
all expenses for their removal and return. Supplier shall, at Customer's
option, promptly remove Purchases or bear the cost of removal. Supplier shall
restore or bear the expenses of restoration of Customer's property to its
original condition at the direction of Customer and refund to Customer all
monies previously paid for such Purchases.
22.4 If Supplier cancels this Agreement and/or any Order(s) for Customer's
default or breach, it ma recover from Customer reasonable expenses incurred as
a direct result of Customer's default or breach, which shall not exceed the
amounts which Customer has not yet paid under the terms hereof. Customer shall
not be liable for incidental, consequential or indirect damages, including but
not limited to lost profits or unallocated overhead.
22.5 Any cancellation by Customer under this Article which is set aside or
deemed wrongful will be deemed a termination under Article 21 "Termination of
Agreement or Order(s)" of this Agreement.
23. DISPUTE RESOLUTION:
23.1 Any claim, controversy or dispute which arises between the parties, their
agents, employees, officers, directors or affiliates ("Dispute") which the
parties are unable to settle through consultation and negotiation may be
mediated under the Commercial Mediation Rules of the American Arbitration
Association ("AAA") by a mutually acceptable mediator. Any Dispute which cannot
be resolved through negotiation or mediation shall be resolved by binding
arbitration as provided in this Article. The arbitrability of claims shall be
determined under the Federal Arbitration Act, 9 USC Secs. 1-16. Notwithstanding
the foregoing, the parties may cancel or terminate this Agreement in accordance
with its terms and conditions without being required to follow the procedures
set forth in this Article.
23.2 A single arbitrator engaged in the practice of law, who is knowledgeable
about the subject matter of this Agreement and the matter in Dispute, shall
conduct the arbitration under the rules of the AAA then in effect, except as
otherwise provided herein. The arbitrator shall be selected in accordance with
AAA procedures from a list of qualified people maintained by the AAA. The
arbitration shall be conducted in Denver, Colorado, and all expedited
procedures prescribed by the AAA rules shall apply. The laws of Colorado shall
govern the construction and interpretation of this Agreement. The arbitrator's
decision and award shall be final, conclusive and binding, and judgment may be
entered upon it in accordance with applicable law in any court having
jurisdiction thereof.
23.3 Either party may request from the arbitrator injunctive relief to maintain
the status quo until such time as the arbitration award is rendered or the
Dispute is otherwise resolved. The arbitrator shall not have authority to award
punitive damages. Each party shall bear its own costs and attorneys' fees, and
the parties shall share equally the fees and expenses of the mediator and
arbitrator.
23.4 If any party files a judicial or administrative action asserting claims
subject to arbitration, as prescribed herein, and another party successfully
stays such action and/or compels arbitration of said claims, the party filing
said action shall pay the other party's costs and expenses incurred in seeking
such stay and/or compelling arbitration, including reasonable attorneys' fees.
23.5 Supplier agrees that in the event of any Dispute between the parties, it
will continue to provide Purchases without interruption.
23.6 Supplier shall include in all contracts with its subcontractors provisions
similar to those in this Article 23, requiring that all disputes in any way
involving Customer shall be settled by binding arbitration.
24. SEVERAL LIABILITY AND JOINT DISCOUNTS: The term Customer as used herein may
be applicable to one or more parties and the singular shall include the plural.
If more than one party is referred to as Customer herein, then their
obligations and liabilities shall be
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Agreement No. 970050785
several, not joint. Notwithstanding the foregoing, all Purchases under this
Agreement and/or related agreements shall be cumulative for purposes of
determining: (1) whether Customer has met any minimum purchase requirements; (2)
credits which may be applicable; (3) Customer's forecasts: (4) the level of
discount, if any, which shall apply to any Purchases; and (5) any other
requirements or incentives based upon the volume or amount of Purchases.
25. NONEXCLUSIVE AGREEMENT: It is expressly understood and agreed that this
Agreement does not grant to Supplier any exclusive privileges or rights and
Customer may contract with other suppliers for the procurement of comparable
Purchases. Customer makes no guarantee or commitment for any minimum or maximum
amount of Purchases hereunder.
26. REMEDIES CUMULATIVE: The remedies provided herein shall be cumulative and
in addition to any other remedies provided by law or equity.
27. LIMITATION OF LIABILITY: NEITHER PARTY IS LIABLE TO THE OTHER FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, INCLUDING
COMMERCIAL LOSS AND LOST PROFITS, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY
OR FORESEEABILITY, WHICH DIRECTLY OR INDIRECTLY ARISES UNDER THIS AGREEMENT,
EXCEPT THAT THE PARTIES ARE LIABLE IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT AND THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO THE FOLLOWING
PROVISIONS OF THIS AGREEMENT: (1) THE INDEMNIFICATION OBLIGATIONS, AND (2) THE
LIABILITY FOR PERSONAL INJURY AND PROPERTY DAMAGES, AND (3) LIABILITY UNDER
ARTICLE 19 "COMPLIANCE WITH LAWS" AND/OR ARTICLE 12 "PATENT, TRADEMARK,
COPYRIGHT OR TRADE SECRET INDEMNIFICATION."
28. SURVIVAL: The provisions of this Agreement that, by their sense and
context, are intended to survive performance by either or both parties shall
also survive the completion, expiration, termination or cancellation of this
Agreement.
29. AMENDMENTS: No change or modification of any terms or conditions herein
shall be valid or binding on either party unless made in writing and signed by
authorized representatives of both parties.
30. M/WBE SUBCONTRACTING PLAN: Support of Minority and Women Businesses is part
of Customer's ongoing business strategy. If required by Customer, Supplier
agrees and commits to subcontract in accordance with its subcontracting plan as
approved by Customer, and such subcontracting plan shall be incorporated herein
as an attachment to the General Terms and Conditions entitled "M/WBE
Subcontracting Plan".
31. ELECTRONIC DATA INTERCHANGE ("EDI"): It is Customer's objective to procure
Purchases utilizing EDI. If Supplier is EDI capable, Customer and Supplier
shall enter into a Trading Partner Arrangement to implement EDI transactions
and such arrangement will be incorporated herein as an attachment to the
General Terms and Conditions, entitled "Electronic Data Interchange."
32. ENTIRE AGREEMENT: Terms and Conditions and all Special Provisions Modules,
together with all incorporated Schedules, exhibits, Order(s), any other
attachments, and amendments, shall constitute the entire Agreement between the
parties. Any pre-printed terms and conditions on Order(s), acknowledgment
forms, or other forms or documents shall not apply and are objected to. This
Agreement supersedes all prior oral and written communications, agreements and
understandings of the parties with respect to the subject of this Agreement.
33. COUNTERPARTS: This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
34. AUTHORITY; JOINT PREPARATION: The parties represent and warrant that they
are duly authorized and have received all necessary consents to enter into this
Agreement, and that the signatories are duly authorized to bind the parties to
this agreement. Each party acknowledges that it has reviewed this Agreement and
participated in its preparation and understands the provisions of this
Agreement. This agreement and any ambiguous language shall not be construed
against either party for having prepared it.
35. SUPPLIER RELATIONSHIP: It is the parties' objective to support and
strengthen their working relationship to ensure performance and mutual
satisfaction under this Agreement. In support of this objective, the parties
may enter into and attach to the General Terms and Conditions as attachment,
entitled "Working Relationship."
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Agreement No. 970050785
U S WEST BUSINESS RESOURCES, INC., SUPPLIER
AS AGENT FOR CUSTOMER
/s/ MARIAN RATHBUN /s/ BRUCE RUSSELL
- ------------------------------------- ---------------------------------------
(Authorized Signature) (Authorized Signature)
Marian Rathbun Bruce Russell
- ------------------------------------- ---------------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
Contract Agent EVP/COO
- ------------------------------------- ---------------------------------------
(Title) (Title)
6/27/97 7/1/97
- ------------------------------------- ---------------------------------------
(Execution Date) (Execution Date)
Approved By:
/s/ DAVID R. LAUBE
- -------------------------------------
(Authorized Signature)
David R. Laube
- -------------------------------------
(Print or Type Name of Signatory)
Vice President Chief Information Officer
- -------------------------------------
(Title)
6-27-97
- -------------------------------------
(Date)
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
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Agreement No. 970050785
================================================================================
SPECIAL PROVISIONS MODULE--SOFTWARE LICENSE AND SERVICES
This Special Provisions Module--Software License and Services ("this Module")
is hereby attached to the General Terms and Conditions and is a part of
Agreement No. 9700050785, effective as of July 1, 1997, between U S WEST
Communications Group, Inc. ("Customer") and Carnegie Group, Inc. ("Supplier").
This Module is subject in all respects to the General Terms and Conditions,
except that in the event of a conflict between this Module and the Agreement,
the terms and conditions of this Module shall govern for the purposes of this
Module only. This Module establishes the terms and conditions under which
Customer may procure Software licenses and services from Supplier from time to
time pursuant to Schedule(s), Order(s) or other similar documents, in which the
parties may agree to non-pre-printed additional terms and conditions which
would apply for that Schedule or Order only. Any pre-printed terms and
conditions on such documents shall not apply and are objected to.
================================================================================
1. DEFINITIONS: In addition to the terms defined in the General Terms and
Conditions, the following capitalized terms used in this Module shall have the
following meanings for purposes of this Module only:
1.1 "Acceptance" (or "Accepted" or "Accept") is defined in Article 4 of
this Module.
1.2 "Customer" for purposes of this Module means U S WEST Communications,
Inc.
1.3 "Customer Specific Technology" shall mean that technology, including,
but not limited to, software, technical information, documentation and
know-how created under this Agreement or any Schedule(s) created or
performed by Supplier at Customer's request, except that Customer Specific
Technology shall not include any technology owned or licensed by Supplier
that was not created specifically for Customer pursuant to this Agreement.
Customer Specific Technology shall be deemed "Work Product" pursuant to
Article 7.1 of the General Terms and Conditions.
1.4 "Error" shall mean an error in the Software or a failure of the
Software to conform to the Specifications, which negatively impacts the
performance of Customer's operations. Errors can occur as (i) errors in
the Software or (ii) errors in the documentation.
1.5 "Jointly Owned Product" shall mean Other Intellectual Property, as
defined in the General Terms and Conditions, that the parties agree in the
Schedule(s) shall be owned jointly by both parties. The rights granted to
each party shall be as specified in Article 7.2 of the General Terms and
Conditions.
1.6 "Modifications" means changes, modifications, enhancements or
corrections to the Software performed by Supplier at Customer's request.
1.7 "Software" means, in addition to the items defined as Specifications
in the General Terms and Conditions, any Supplier Licensable Technology,
Standard Supplier Product(s), Modifications and/or Customer Specific
Technology.
1.8 "Specifications" means, in addition to the items defined as
Specifications in the General Terms and Conditions, the functional and
operational characteristics of the Software which may include, without
limitation, samples, results of benchmark testing, Supplier's
descriptions, drawings, and technical criteria, including physical,
operating, timing, maintenance, compatibility and modularity
characteristics.
1.9 "Supplier Licensable Technology" shall mean software in
machine-readable object code form and any related documentation provided
by Supplier that is proprietary to Supplier and related to the
experimentation, research and development of technology which Supplier has
created or acquired any right, title, or interest in, including, without
limitation, the right to sublicense , provided that Supplier Licensable
Technology shall not include Standard Supplier Products, Jointly Owned
Products, Customer Specific Technology and Customer Confidential
Information. Supplier Licensable Technology is identified in the
Schedule(s). The rights granted to Customer shall be the same as those
provided for Standard Supplier Product(s) as set forth in Article 2.1 of
this Module.
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1.10 "Standard Supplier Products" shall mean software products in
machine-readable object code form which incorporate or otherwise require
the use of proprietary information of Supplier or a third party and which
are marketed or supported on a regular basis by Supplier without
Modifications and are identified in the Schedule(s).
2. SCOPE AND TERM OF LICENSE:
2.1 Supplier grants Customer a nonexclusive, perpetual license for the
Standard Supplier Product(s) ordered by Customer, from time to time, in
object code form, to use and make copies for its business with no right to
sublicense, unless otherwise specified in a Schedule, Order or other
writing by the parties. Title to Standard Supplier Product(s) shall remain
with Supplier. Supplier agrees that any licenses granted hereunder may be
extended to any Affiliate on the terms and conditions of this Agreement,
without additional royalty, license fee or other charge. Any such
Affiliate shall be added to this Module as an additional Customer. In
addition, Customer shall have the right to provide access, as Customer may
be required, pursuant to the Telecommunications Act of 1996 and Federal
and State rules, regulations and orders without charge.
2.2 Supplier grants to Customer a license to use and make copies of
Documentation for Software at no cost.
2.3 Copies shall retain Supplier's copyright notices and proprietary
markings. Customer may modify, correct or enhance Documentation and
training materials in any manner, and any such modifications, enhancements
and/or corrections and any related materials and documentation (and all
proprietary rights therein, including copyrights) shall belong exclusively
to Customer to the extent that the modifications, enhancements or
corrections do not embody any material proprietary to Supplier.
2.4 Customer may terminate this Module upon ninety (90) days written
notice to Supplier. Such termination, and/or cancellation or expiration of
the Agreement, shall not affect: (1) the licenses granted prior to the
effective date of termination; (2) the remaining term of any Software
Support and Maintenance Services; and/or (3) any obligations with respect
to escrow of Standard Supplier Product(s).
3. SOFTWARE SERVICES: Customer may elect to have Supplier perform certain
Services as set forth in a Schedule(s), Order(s) or other document, such as
Software installation, Support and Maintenance, training, evaluation,
Modification, Custom Development and/or consultation.
3.1 Custom Software Development Services: Supplier agrees to develop and
provide Customer Specific Technology along with related Documentation,
under terms and conditions as mutually agreed upon by the parties in
writing and as described in the Schedule(s) and/or Order(s) in accordance
with the requirements of the Agreement. Such Customer Specific Technology
shall be deemed to be Work Product(s) as described in Article 7
"Ownership" of the General Terms and Conditions, other than preexisting
work of Supplier or a third party. Supplier shall provide to Customer a
detailed written description of any preexisting works it desires to
incorporate into the Customer Specific Technology and/or Documentation and
obtain Customer's prior written consent ("Preexisting Works"). Customer
shall have, subject to the terms and conditions of this Module or any
Schedule, a fully paid-up license to use, reproduce, distribute, modify
and otherwise exploit the Preexisting Works which are incorporated in the
Customer Specific Technology and/or Documentation. Customer Specific
Technology shall be delivered to Customer in course (except as otherwise
provided in this Module) and object codes together with all programmers
comments and other relevant work products. Other than the ownership
provisions as set forth in this Section, the term "Customer Specific
Technology" shall be deemed to include Preexisting Works.
3.2 SOFTWARE SUPPORT AND MAINTENANCE SERVICES: For as long as Supplier
offers support and/or maintenance services for the Software or similar
software to any of its customers, Customer shall, at Customer's option and
expense, be entitled to receive such Services. Customer may request
Support and Maintenance Services in accordance with the applicable
schedule(s).
4. ACCEPTANCE:
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4.1 ACCEPTANCE OF STANDARD SUPPLIER PRODUCT(S) AND SUPPLIER LICENSABLE
TECHNOLOGY: For Standard Supplier Product(s) and Supplier Licensable
Technology, "Acceptance" (or "Accept" or "Acceptable" or "Accepted") means
Customers acknowledgment that Standard Supplier Product(s) conforms to the
requirements of this Agreement. Acceptance shall be deemed to occur on the
earlier of: (1) the date Customer gives written acknowledgment, or (2)
passage of thirty (30) days after installation of such Software.
Notwithstanding the foregoing, Acceptance shall not occur upon the passage
of that time period if on or before the end of that period Customer
notifies Supplier of any material nonconformance with respect to Standard
Supplier Product(s), which must be in written form.
4.2 ACCEPTANCE OF CUSTOMER SPECIFIC TECHNOLOGY: Customer shall test
Customer Specific Technology upon installation according to the Acceptance
Test(s) described in the Schedule(s), Order(s) or other applicable
document(s). The Customer Specific Technology shall be deemed Acceptable
after successful completion of the Acceptance Test(s) and the
determination by Customer that the Customer Specific Technology are
substantially free from material error, operating in substantial
conformance with the Documentation Specifications and other requirements
as set forth in the Agreement. In the event of any material nonconformity,
revealed during the Acceptance Tests, Supplier shall promptly correct such
nonconformity. Supplier further agrees to provide support services during
Acceptance Test(s) at no expense to Customer, Other than reimbursement of
Supplier's expenses to extent allowed under this Agreement.
4.3 ACCEPTANCE OF DOCUMENTATION FOR MODIFICATIONS OF CUSTOMER SPECIFIC
TECHNOLOGY: Customer will review the Documentation delivered by Supplier
for errors or defects, for conformance to the terms of this Agreement,
including Specifications, and for consistency with the Software. Customer
shall have the later of forty-five (45) days following Acceptance of the
Software or delivery of all Documentation to Customer to complete such
review. Customer shall notify Supplier during this period if Customer
reasonably determines that revisions to the Documentation are required
under this Section. Supplier shall make such revisions and deliver the
revised Documentation within fifteen (15) days after notification, unless
Customer agrees in writing to a longer time period. If Supplier fails to
make such revisions, then Customer may in its sole discretion" (a) provide
in writing additional time to Supplier to make changes; or (b)
notwithstanding any earlier acceptance of the Software, terminate this
Agreement upon written notice to Supplier. Customer will return the
subject Software and Documentation upon receipt of the refund.
4.4 NON-ACCEPTANCE: In the event the Software and/or Documentation is not
Accepted by Customer, Supplier agrees to make any necessary corrections to the
Software and/or Documentation. Unless otherwise agreed, the corrected Software
and/or Documentation shall be delivered within fifteen (15) days after Customer
notifies Supplier that the Software and/or Documentation has not been Accepted
and the reasons for non-Acceptance. If the corrected Software and/or
Documentation still fails to pass the Acceptance test, Customer may, at its
option, terminate the applicable Schedule(s) and/or Order(s) in whole or in
part, effective immediately upon such notice, and shall receive reimbursement
of all payments made to Supplier, as set forth in the Schedule or Order and
required refunds of payments under the terminated Schedule(s) and/or Order(s)
within five (5) days following the termination notice.
5. OWNERSHIP: Each Schedule shall identify any Customer Specific Technology,
Standard Supplier Products, Supplier Licensable Technology, and/or Jointly
Owned Products. Unless otherwise agreed to in a Schedule, Customer shall own
exclusively, Customer Specific Technology and Modifications. Notwithstanding
the above, the parties may agree in writing signed by both parties, at any time
during the Schedule Term, to modify such ownership rights.
6. FEES AND CHARGES: All fees, charges and timing of payments shall be
specified in the Schedule(s), Order(s) or other applicable attachment,
according to the schedule of fees and discounts attached hereto as Exhibit 1.
Customer shall only be bound to pay the amounts specifically agreed to in
writing. Supplier must submit any rate increases to Customer no later than
October 1 for increases to be effective January 1 of the following year. No
single increase shall be greater than [ ] ([ ]%).
7. ESCROW: Supplier agrees that the entire source code for Standard Supplier
Product(s), together with all related listings and Documentation, as now exists
or
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Agreement No. 970050785
hereafter becomes available including, without limitation, the then current
version(s) of Standard Supplier Product(s) being used by Customer ("Escrow
Materials") will, at Customer's option, be deposited, maintained and updated at
Customer's expense in escrow pursuant to an Escrow Agreement which may be
executed between the parties. Unless otherwise agreed, Supplier shall execute
the escrow agreement and deposit the Escrow Materials within thirty (30) days of
Customer's exercise of its option.
8. ADDITIONAL WARRANTIES:
8.1 In addition to all Warranties stated in the Agreement, Supplier
warrants that the Software shall operate substantially in accordance with
and conform to the requirements of this Agreement (including
Specifications) in all material respects. This warranty shall not be
voided by Customer's modification of the Software or combination of
Software with other software so long as Supplier can reasonably discharge
any warranty obligations notwithstanding such modifications or
combinations or, where required, following their removal by Customer and
restoration of the Software to the state as originally delivered by
Supplier to Customer. Supplier's warranty with respect to Software shall
be for the period set forth in the applicable Schedule ("Warranty
Period"). Supplier's obligation during the Warranty Period shall be as
specified in the Agreement.
8.2 Disabling Code. Supplier represents and warrants that to the best of
its knowledge no disabling code or devices are incorporated or present
within the Software at the time the Software is licensed by Supplier to
Customer.
9. WORK AUTHORIZATION: The parties agree that no work will commence under this
Agreement without a Schedule executed by the parties, or in the absence of such
schedule, the written approval of the Customer. Such written approval must be
signed by the Customer department or business unit head as appropriate for the
estimated cost of the work to be performed. In addition, such written approval
must state the time frame in which the parties agree to have the applicable
Schedule executed and in place. Supplier agrees that no invoices shall be
submitted until such Schedule has been executed.
10. NOTICES: All notices in connection with this Module, unless otherwise
specified, shall be addressed as set forth below and shall be deemed given: (1)
the second day after the day they are deposited with DHL, Federal Express,
Airborne or similar overnight courier, charges prepaid, return receipt
requested, with a confirming telefax; or (2) as of the day of receipt if they
are deposited in first class U. S. Mail, charges prepaid, return receipt
requested; or (3) as of the day of receipt if they are hand delivered:
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Agreement No. 970050785
SUPPLIER: CUSTOMER:
U S WEST Business Resources, Inc.
---------------------------------------
Carnegie Group, Inc. 188 Inverness Drive West
--------------------------------- ---------------------------------------
Five PPG Place Room 200
--------------------------------- ---------------------------------------
Pittsburgh, PA 15222 Englewood, CO 80112
--------------------------------- ---------------------------------------
ATTENTION: Contract Agent for Agreement
--------------------------------- ---------------------------------------
ATTENTION: Maria Wilkin No. 9700050785
--------------------------------- ---------------------------------------
TELEFAX: 412-642-6906 TELEFAX: 303-397-8862
--------------------------------- ---------------------------------------
Either party may change its notice
address or recipient by giving notice
to the other party of the change.
The parties intending to be legally bound have caused this Special Provisions
Module--Software License and Services to be executed by their duly authorized
representatives and shall be deemed effective as of July 1, 1997.
U S WEST BUSINESS RESOURCES, INC., SUPPLIER
AS AGENT FOR CUSTOMER
/s/ MARIAN RATHBUN /s/ BRUCE RUSSELL
- ------------------------------------- -----------------------------------------
(Authorized Signature) (Authorized Signature)
Marian Rathbun Bruce Russell
- ------------------------------------- -----------------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
Contract Agent EVP/COO
- ------------------------------------- -----------------------------------------
(Title) (Title)
6/27/97 7/1/97
- ------------------------------------- -----------------------------------------
(Execution Date) (Execution Date)
Approved By:
/s/ DAVID R. LAUBE
- -------------------------------------
(Authorized Signature)
David R. Laube
- -------------------------------------
(Print or Type Name of Signatory)
Vice President Chief Information Officer
- -------------------------------------
(Title)
6-27-97
- -------------------------------------
(Date)
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Agreement No. 970050785
================================================================================
EXHIBIT 1
TO
SPECIAL PROVISIONS MODULE
SOFTWARE LICENSE AND SERVICES
PRICING:
Unless otherwise agreed to in a Schedule, the following hourly rates and
corresponding discounts shall apply:
================================================================================
HOURLY RATES:
--------------------------------------- --------------
Administrative Support $[ ]
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Technical Support $[ ]
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Technical Writer $[ ]
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Sr. Technical Writer $[ ]
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Associate Engineer $[ ]
--------------------------------------- --------------
Engineer/Knowl Engineer $[ ]
--------------------------------------- --------------
Sr. Eng I/Knowl Eng I $[ ]
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Sr. Eng II/Knowl Eng II $[ ]
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Sr. Eng III/Knowl Eng III $[ ]
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Principal Engineer $[ ]
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Proj Mgr/Bus Conslt $[ ]
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Manager $[ ]
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Sr. Manager/Sr. Bus Conslt $[ ]
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DISCOUNT STRUCTURE:
As set forth in the table below, Supplier will apply a minimum discount rate to
prices for Supplier services within a Schedule, based on the total value of the
supplier's standard hourly rates before any discounts are applied (hereinafter
referred to as "Services Price"). Additionally and if applicable, Supplier will
apply a project volume discount based on a Schedule's Services Price or the
cumulative Services Price of related Schedules representing follow on work or
change orders to existing work in accordance with the table below. All
applicable discounts will be represented in each Schedule in accordance with
the following classifications:
- --------------------------------------------------------------------------------------------------------------------
MINIMUM DISCOUNT [ ]% Applied to the Services Price
within each Schedule
- --------------------------------------------------------------------------------------------------------------------
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19
Agreement No. 970050785
- --------------------------------------------------------------------------------------------------------------------
PROJECT VOLUME DISCOUNT Services Price Volume Discount Individual Schedules will be
$[ ] - $[ ] [ ]% eligible for a project specific
$[ ] - $[ ] [ ]% discount, in addition to the
[ ]% Minimum discount, if the
$[ ] - $[ ] [ ]% Services Price within the
$[ ] - Schedule is [$ ] or more.
- ------------------------------- ------------------------------------------------- ----------------------------------
CUMULATIVE PROJECT VOLUME A new Schedule which represents
DISCOUNT direct follow on work to
previously executed Schedule(s)
(i.e., continuous work on one
project) or which represents a
change order thereto, will be
eligible for a Project Volume
Discount based upon the aggregate
price of the Services Prices of
the related Scheduled and change
order documents.
Qualification for the Cumulative
Project Volume Discount is based
on the following criteria, all of
which must be verified within each
applicable Schedule:
o continuous performance by the
Supplier and Customer project teams;
o the project must be scoped (as
mutually agreed) and classified as
a "follow on" effort;
o reference made to related
Schedule(s) and corresponding
Service Price which are included in
the aggregate Services Price for the
calculation of the Cumulative Project
Volume Discount.
====================================================================================================================
CUMULATIVE NET Cash Rebate of [ ]% of Cumulative Net billings Defined as cumulative billings
BILLINGS/REBATES at one or more dates mutually agreed to, for for work performed by Supplier
Cumulative Net Billings of $[ ] or more pursuant to Schedules under the
within a calendar year. Agreement on a calendar year
basis, with the exception of 1997
in which case the calendar year
will begin with the
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Agreement No. 970050785
- --------------------------------------------------------------------------------------------------------------------
effective date of the Agreement
and end on December 31, 1997. Work
contacted and performed under the
terms and conditions of the General
License Agreement dated December
17, 1992 between the parties as
amended ("GLA") is independent and
exclusive of the Agreement and the
terms and conditions of this
Exhibit 1.
*Note: Cumulative Net Billings
include all billings pursuant to
the Schedules, i.e., Services,
Software and Maintenance. Expenses
that are billed at cost with no
markup, "Pass Through Expenses",
will be included in Cumulative Net
Billings up to a maximum of []%.
- --------------------------------------------------------------------------------------------------------------------
*Note: Except for purposes of Rebates only, the discounts provided in this
Exhibit 1 to not apply to Supplier software license and maintenance fees,
travel related expenses or any Pass Through expenses.
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[
PROJECT TITLE FINAL VERSION
SCHEDULE NUMBER "X"/(AGREEMENT NO.)
PROJECT TITLE
This Schedule Number "X", effective __________ issued pursuant to the General
Terms and Conditions of Agreement No. __________ dated June 30, 1997 between
U S WEST and Carnegie Group, Inc. ("CGI") including the Special Provisions
Module - Software License and Services dated June 30, 1997 (collectively, the
"Agreement") and is made a part thereto.
This Schedule contains the following sections:
1. Project Description
2. Schedule, Statement of Work and Deliverables
3. Projected Cost
This Schedule specifically overrides the terms and conditions of the Agreement
pursuant to "Exceptions/Definitions to the Agreement" in section 1.3 below. In
the event that such section 1.3 conflicts with the provisions of the Agreement,
the terms of section 1.3 shall control for purposes of this Schedule only.
In consideration of the mutual covenants and agreements contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. PROJECT DESCRIPTION
1.1 INTRODUCTION
This Schedule covers the services and deliverables to be provided by Carnegie
Group, Inc. for U S WEST in support of PROJECT TITLE. The work to be provided
by CGI represents a follow on effort to Schedule No. ___ OR represents a new
effort between the parties.
1.2 OVERVIEW
Describe project here.
1.3 EXCEPTIONS/DEFINITIONS TO THE AGREEMENT
The following exceptions and definitions apply to this Schedule:
(1) Standard Supplier Products: (any required definition and exceptions)
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[
(2) Jointly Owned Product: (any required definition and exceptions)
(3) Supplier Licensable Technology: (any required definition and exceptions)
(4) Work Authorization: (reference to any previous agreement to start work
prior to signing this Schedule and any clarifications and exceptions)
(5) Special Rampdown provisions: (may need to take exception to subsec. 21.1
of the General Terms and Conditions)
(6) Services Warranty terms: (reference subsec. 5.3 for Services)
(7) Product Warranty term: (reference Special Provisions Module)
(8) Acceptance exceptions: (reference Special Provisions Module)
(9) Management of project resources:
(9.1) The CGI project manager assigned to this PROJECT TITLE has
exclusive control of and over the CGI resources on the project,
including but not limited to responsibility for staff assignment,
project team makeup, and transition of CGI resources either onto
or from a project. U S WEST may request the CGI project manager
to make changes relating to the CGI resources. CGI will respond
with consent or an objection to consent an reasons why consent
will be withheld; consent will not be unreasonably withheld.
(9.2) The CGI project manager and the U S WEST project manager have the
authority to mutually agree on the location, either at a U S WEST
site or CGI site, where each CGI resource may work during the
project, including an associated period of time, based on not
compromising the schedule and deliverables set forth in this
Schedule.
(10) Review of the Schedule
(10.1) The parties agree that the U S WEST team leader, the U S WEST
project manager and the CGI project manager will meet within the
first week after the effective date of this Schedule to review the
details of this Schedule, including but not limited to the
Exceptions to the Agreement provided above ("Review")
(10.2) The Review will occur more than once should a new U S WEST team
leader, U S WEST project manager or CGI project manager be
assigned by U S WEST or CGI respectfully to the PROJECT TITLE
after the initial Review, unless as otherwise mutually agreed by
the parties.
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[
1.4 CGI ROLES AND RESPONSIBILITIES
The following activities (such as design, development, testing, documentation
and delivery of system, based on multiple tasks) are to be performed by CGI:
(1)
(2)
(3)
(4)
The following tasks (including details involved in the activities provided
above) are to be performed by CGI:
(1)
(2)
(3)
(4)
1.5 U S WEST ROLES AND RESPONSIBILITIES
The following activities (such as design, development, testing, documentation
and delivery of system, based on multiple tasks) are to be performed by U S
WEST:
(1)
(2)
(3)
(4)
1.6 JOINT CGI AND U S WEST ROLES AND RESPONSIBILITIES
(1)
(2)
(3)
(4)
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1.7 SCOPE
Detailed specifications may be incorporated by reference for SEC purposes.
1.8 DELIVERABLES
Provide a high level description of the Deliverables here.
1.9 SUMMARY
The services and deliverables provided hereunder ... This Schedule covers
efforts to be performed from __________ through __________.
2. SCHEDULE, STATEMENT OF WORK AND DELIVERABLES
2.1 TASKS, SCHEDULE, AND DELIVERABLES
The following table summarizes the tasks, schedule and deliverables included in
this Schedule.
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
TASKS RESPONSIBILITY START DATE END DATE DELIVERABLES
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
2.2 ASSUMPTIONS
The above tasks, schedules and deliverables were developed based on the
following assumptions.
1. The schedule is based on a project start date of _____. Delays in
this start date may impact the delivery date of one or more
Deliverables.
2. The work estimates are based on CGI Methodology and past
experience. CGI will continuously monitor the status and notify
U S WEST of any issues or risk situations which may impact the
delivery date.
3. CGI has timely access to U S WEST personnel (i.e. SMEs). [Provide
details on when access is required/what information is required
of the SMEs/which and/or how many SMEs are required/under what
forum will the information be gathered by CGI, etc.]
4. U S WEST to provide a sponsor and project manager to act as the
liaison between the U S WEST project team and the CGI project
team.
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5. Weekly status reports and meetings to be held between the U S
WEST project manager and the CGI project manager to measure
progress against the workplan. Any known issues and risks are
also discussed and raised to the next level if not resolved.
6. U S WEST to provide facilities, computer equipment, software,
etc., as requested by CGI.
7. Any delays in dependent tasks (i.e. U S WEST tasks) may impact
the delivery date of one or more Deliverables.
8. Change requests to be submitted using the CGI change process for
analysis to provide estimates, costs, and impact on current
deliverables. Signed approval in compliance with RPP 1001 is
required before implementation of any change requests.
2.3 DELIVERABLES
The table below provides a preliminary description of the deliverables.
- ----------------------------------------------------------- --------------------------------------------------------
DELIVERABLES DESCRIPTION
- ----------------------------------------------------------- --------------------------------------------------------
- ----------------------------------------------------------- --------------------------------------------------------
- ----------------------------------------------------------- --------------------------------------------------------
- ----------------------------------------------------------- --------------------------------------------------------
A copy of the deliverables will be provided to the appropriate U S WEST
recipients. The master copy will contain a letter to be mutually signed by the
parties acknowledging delivery, receipt and acceptance of the deliverables.
Should CGI not receive the signed letter or a written list of items which are
not in compliance with the project specifications within ten (10) business days
after delivery, then the Deliverables shall be deemed accepted.
2.4.1 DETAILED SCOPE ASSOCIATED WITH AFOREMENTIONED DELIVERABLES
3. PROJECTED COST
The total cost of the worknet of discounts shall not exceed _____ based on
estimated time and material expenses. Should travel be required, U S WEST
agrees to pay CGI travel expenses for all pre-approved trips.
OR
The total price shall not exceed _____ based on fixed pricing not including
travel and other expenses. [If project is fixed price, CGI will not provide any
hours, rates or discounts and this section would end here.]
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This Schedule represents OR does not represent a follow-on effort or a change
order effort. If it does, the following Schedule(s) and corresponding Services
Prices are included in the aggregate Services Price for the calculation of the
Cumulative Project Volume Discount in this Schedule. Estimated costs with
applicable discounts for the project are provided below.
- -------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
ITEMIZATION OF COSTS AMOUNT
- --------------------------------------------------------------------------------------------------------------------
CONTRACT ENGINEERING COSTS (TIME AND MATERIALS)
LESS MINIMUM DISCOUNT AND ANY PROJECT VOLUME DISCOUNT
- --------------------------------------------------------------------------------------------------------------------
TOTAL CONTRACT ENGINEERING
- --------------------------------------------------------------------------------------------------------------------
CGI/THIRD PARTY LICENSE FEES
- --------------------------------------------------------------------------------------------------------------------
TRAVEL EXPENSES AND OTHER PASS-THROUGH EXPENSES
- --------------------------------------------------------------------------------------------------------------------
TOTAL SCHEDULE ESTIMATED PRICE
- --------------------------------------------------------------------------------------------------------------------
Estimated hours are as follows:
- --------------------------------------------------------------------------------------------------------------------
CATEGORY ESTIMATED HOURS
- --------------------------------------------------------------------------------------------------------------------
Manager(s)
Business Consultant(s)
Engineers(s)
Technical Writer(s)
- --------------------------------------------------------------------------------------------------------------------
TOTAL HOURS
- --------------------------------------------------------------------------------------------------------------------
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[
IN WITNESS WHEREOF, U S WEST and CGI agree and execute this Schedule in
duplicate by their respective authorized representatives.
CARNEGIE GROUP, INC. U S WEST
BY: BY:
------------------------------- --------------------------------
NAME: NAME:
----------------------------- ------------------------------
(printed) (printed)
TITLE: TITLE:
---------------------------- -----------------------------
DATE: DATE:
----------------------------- ------------------------------
U S WEST BRI
BY:
--------------------------------
NAME:
------------------------------
(printed)
TITLE:
-----------------------------
DATE:
------------------------------
- --------------------------------------------------------------------------------
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