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EXHIBIT 10.3
AMENDED AND RESTATED SERVICE AGREEMENT
THIS AMENDED AND RESTATED SERVICE AGREEMENT (the "Agreement"), dated as of 12th
day of June, 2001 (the " Effective Date"), is entered into by and between
Viasource Communications, Inc., a New Jersey corporation with its principal
place of business located at 200 East Broward Ave., 21st floor, Fort Lauderdale,
Florida 33301 ("Viasource"), and Gateway Companies, Inc., a Delaware corporation
with its principal place of business located at 4545 Towne Centre Court, San
Diego, California 92121 ("Gateway").
RECITALS
WHEREAS, Gateway and Viasource entered into a Service Agreement, dated February
23, 2001 (the "Original Agreement), to provide the services identified in the
Agreement;
WHEREAS, Gateway and Viasource desire to amend and restate the Original
Agreement in order to both amend and expand the services provided thereunder;
and
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree as follows:
I. VIASOURCE OBLIGATIONS
A. VIASOURCE SERVICES. Viasource shall provide services to Gateway's customers
described on Exhibit A (the "Installation and Orientation Services") and
other services provided for in this Agreement (together with the
Installation and Orientation Services, the "Services"). Viasource shall
provide the labor, transportation and all other resources necessary (as
defined below) to provide Services in an efficient and timely manner
consistent with this Agreement and the performance standards set forth in
Exhibit B (the "Performance Standards"). Viasource will provide services in
the areas described in the Original Agreement and will be capable of
providing the Services in the geographic areas described on Exhibit C
within the time specified therein after notice from Gateway as specified in
Exhibit C. The parties may amend this Agreement to provide for additional
services to be performed by Viasource from time to time.
B. GATEWAY TRAINING. Viasource shall train its employees (both trainers and
employees who provide services to customers) in accordance with the
Performance Standards. Viasource will be responsible for reproducing
training materials provided by Gateway. Viasource will not permit any
employee who has not completed such training to provide services to
customers. In the event Gateway changes the scope of Services or the
parties agree to ad additional services, Viasource will conduct training
with respect to such changed or additional services. Specifically,
Viasource shall not engage any subcontractor to provide Services without
the prior written consent of Gateway, which consent will not be
unreasonably withheld.
C. VIASOURCE RESOURCES. Viasource shall provide all industry-standard
materials, tools, licenses, and incidentals as listed on Exhibit A attached
hereto and as necessary to perform and to complete in a workmanlike manner
the Services. Except as otherwise specifically provided in this Agreement,
Viasource shall provide all consumables and collateral materials necessary
to provide Services, including but not limited to Gateway-branded shirts,
identification badges and vehicle signage. All collateral materials
provided to customers will be subject to Gateway's approval.
D. GATEWAY/VIASOURCE CUSTOMER SERVICE TOLL FREE NUMBER. Viasource shall
establish a unique toll-free number for the specific use by Gateway sales
and support representatives and Gateway customers. Gateway Performance
Standards shall apply to this Gateway/ Viasource Customer Service Toll Free
Number. All rights to and ownership in the Gateway/ Viasource Customer
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Service Toll Free Number shall be assigned by Viasource to Gateway on
termination of this Agreement or on request by Gateway.
E. VIASOURCE REPORTING. Viasource shall provide reports to Gateway containing
such information, in such form and with such frequency as Gateway may
reasonably establish from time to time. Viasource will maintain records and
processes in a manner sufficient to ensure the accuracy of such reports.
F. VIASOURCE EMPLOYEES. In the event Viasource is providing personnel at any
of Gateway's facilities, Viasource shall be solely responsible for such
personnel and any obligation or liability associated with them and their
presence at Gateway's facilities and will indemnify, defend and hold
Gateway harmless for all such obligations and liabilities. Viasource will
establish and enforce policies and procedures for such personnel that are
consistent with the policies and procedures followed by Gateway's
employees.
G. SYSTEMS. Viasource shall cause its dispatching, customer service and other
systems to be compatible with Gateway's systems, as they may change from
time to time, so that data, communications and other information can be
transferred to and maintained by Gateway in accordance with its standard
business practices.
H. GATEWAY CHANGES. Gateway reserves the right to make changes to the scope of
the Services and to Exhibits A, B and C attached hereto after discussing
such change with Viasource. Any such change which materially increases
Viasource's costs of providing Services shall be binding only if agreed to
by Viasource in writing.
II. GATEWAY OBLIGATIONS
A. MARKETING. Gateway will use commercially reasonable efforts to offer and
sell the Installation and Orientation Services only in the geographic areas
described on Exhibit C after appropriate notice from Gateway as specified
therein. Gateway shall be responsible for conducting all of the marketing
promoting the Installation and Orientation Services. The content and
placement of such marketing shall be determined by Gateway in its sole
discretion.
B. GATEWAY MATERIALS. Gateway shall provide to Viasource adequate inventories
hardware components specified in Exhibit A (i.e., Keyboards, mice, power
cables and printer cables) and marketing materials (i.e., Thank You
Folders, customer training materials and other promotional materials
designated by Gateway) to be provided by Viasource to customers of Service.
Gateway, at its cost, will ship such materials to Viasource and title to
all such materials will pass to Viasource upon delivery to it. Viasource
will use such materials as provided in this Agreement to provide Services
to customers. Viasource shall strictly account to Gateway for hardware
components and shall reimburse Gateway for any hardware components that are
not provided to customers in the course of performing Services, less a one
percent (1%) allowance (based on Gateway's costs). Viasource will use
commercially reasonable efforts to avoid wastage of marketing materials.
Viasource, at its cost, will return to Gateway all such materials at
termination of this Agreement.
C. GATEWAY TRAINING. Gateway shall provide initial training to up to 10
Viasource employees at its cost, for the purpose of qualifying them to
train Viasource employees who will provide Services to customers. Gateway
will provide training to additional Viasource trainers and Viasource shall
reimburse Gateway for its costs in providing such training. All training of
Viasource trainers shall be provided at a location to be designated by
Gateway. Gateway shall be responsible for creating all training materials
used to train Viasource employees (both trainers and employees who provide
services to customers). The content of all training shall be determined by
Gateway in its sole discretion.
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III. PAYMENT OBLIGATIONS
A. FEES. Gateway will pay Viasource the fees set forth on Exhibit D. Except as
otherwise specifically provided in this Agreement, each party will bear its
own costs of performing its obligations under this Agreement.
B. INVOICES. Viasource will remit invoices to Gateway on a monthly basis. All
invoices shall be due and payable within forty-five (45) days of receipt of
each invoice. Each invoice submitted to Gateway shall describe the amounts
included in the invoice in such detail as Gateway may reasonably request.
Viasource shall not incur any expenses on behalf of Gateway unless
specifically authorized to do so.
C. TAXES. Viasource may invoice Gateway for applicable sales taxes properly
collectible by Viasource in those states in which impose sales tax on
Services and in which an exemption from collection is not available.
Viasource shall include such sales taxes in invoice for Services to which
the sales taxes relate. Viasource agrees to indemnify and hold Gateway
harmless against any sales taxes, penalty, interest, or charge that may be
levied or assessed as a result of Viasource's failure to timely invoice
Gateway for sales taxes or its delay or failure for any reason to pay any
tax or file any return or information required by law, rule, regulation, or
this Agreement, to be paid or filed by Viasource.
D. AUDIT RIGHTS. Viasource shall maintain accurate and complete records
specifically relating to Viasource's obligations hereunder in accordance
with generally accepted accounting principles and practices, consistently
applied and in a format that will permit audit. Gateway may cause an audit
to be made of the relevant books and records of Viasource and its operating
processes, procedures and methods. Any audit or inspection shall be
conducted during regular business hours at Viasource's facilities, with ten
(10) business days' prior written notice and shall be conducted as to not
to interfere with Viasource's normal business activities. Any audit shall
be conducted by Gateway, or an independent certified public accountant
selected by Gateway. Viasource agrees to provide the selected auditor or
inspection team access to the relevant records and personnel. Prompt
adjustment shall be made to compensate for any errors or omissions
disclosed by such audit. Any such audit shall be paid for by Gateway,
unless discrepancies are disclosed that amount to five percent (5%) or more
of the amount that was reported or, in the case of an audit of Viasource's
operations, the audit reveals that Viasource is in material default of its
obligations under this Agreement. If such material discrepancies or default
are disclosed, Viasource shall pay the costs associated with the audit. All
information disclosed by Viasource to Gateway or its agents in connection
with an audit under this section shall be deemed confidential information
and maintained by Gateway in accordance with Section VI.
IV. TRADEMARKS. Viasource specifically recognizes Gateway's title in and to its
trade names, trademarks, service marks and related logos (the "Marks") which may
be used hereunder, and agrees that it will do nothing inconsistent with
Gateway's ownership, and that all use of the Marks shall inure to the benefit of
and be on behalf of Gateway. Viasource shall, at all times, make proper use of
Gateway's Marks and not take any action inconsistent with the Gateway's
ownership. Viasource shall obtain Gateway's prior written approval before using
the Marks. Upon expiration or termination of this Agreement, Viasource agrees to
immediately cease the use of the Marks. Viasource further agrees that:
A. This is not a "trademark license" by which it is in any way using the
Marks to indicate origin of the its products or services;
B. It will not display the Marks in a negative light, disparage it, or use
it in connection with immoral materials or any other way which would
denigrate the Mark;
C. It will not display the Marks in such a way as to imply that Gateway
sponsors, is associated with, or endorses its products and/or services;
and
D. It will include a standard trademark acknowledgment statement in all
materials.
V. PRESS RELEASES. Neither party shall publicly announce or disclose the
existence of this Agreement or its terms and conditions or advertise or release
any publicity regarding this Agreement without the prior written consent of the
other party. In the case of Gateway, Gateway's Vice President of Corporate
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Communications and the Senior Vice President of its Consumer Division must give
such consent. Breach of this provision by Viasource or any of its subcontractors
or suppliers shall be considered a material breach of this Agreement and Gateway
shall be entitled to, at its option, one or more of the following remedies: (i)
Viasource shall pay Gateway, as liquidated damages, an amount equal to One
Hundred Thousand Dollars ($100,000); (ii) Viasource shall publish a retraction
of such press release in a form reasonably acceptable to Gateway; and/or (iii)
Gateway may terminate this Agreement without further liability immediately upon
delivery of Notice to Viasource. In view of the difficulty of determining with
any certainty the resulting damages incurred by Gateway if Viasource breaches
this provision, the parties agree that the amount specified in clause (i) of the
preceding sentence is a reasonable approximation of the harm caused to Gateway's
brand in the event Viasource breaches this provision. In the event that a
Viasource subcontractor or supplier breaches this provision, Viasource shall
only be held to the liquidated damages provision listed above if it has not
taken commercially reasonable efforts to ensure that such a breach by its
subcontractors or suppliers does not occur. This provision shall survive
termination of this Agreement.
VI. CONFIDENTIALITY. All confidential information disclosed by the parties under
this Agreement shall be subject to the Mutual Non-disclosure Agreement, dated
September 28, 2000, between Gateway and Viasource the terms of which are
incorporated herein by reference. The term "confidential information" shall have
the meaning set forth in such Mutual Non-disclosure Agreement. Any breach of the
Mutual Non-disclosure Agreement shall be deemed a breach of this Agreement.
Without limiting the Mutual Non-disclosure Agreement, Viasource agrees that all
information relating to or derived from customers of the Installation and
Orientation Service, all operating processes developed during the term of this
Agreement to provide Services and the contents of the Gateway operations manual,
identified in Exhibit B, constitute Gateway's confidential information.
VII. REPRESENTATIONS AND WARRANTIES
A. Each party represents, warrants, and covenants to the other party that: (i)
such party is duly organized and validly existing under the laws of the
State of its formation and has all requisite power and authority to execute
and deliver, and to perform all of its obligations under this Agreement;
(ii) this Agreement constitutes the legal, valid and binding obligations of
the party, enforceable against it in accordance with its terms, except as
such may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and except as may be limited by general principles of
equity; (iii) the execution, delivery and performance of this Agreement
does not and shall not, to the best of its knowledge, (a) violate any
applicable law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect, (b) with or without the
giving of notice or the passage of time or both, result in a breach or
constitute a default under any material agreement to which it is a party or
by which it is bound, or (c) require any authorizations, consents,
approvals, licenses, exemptions or filings with any third party or
governmental authority; and (iv) the products and services supplied by the
warranting party pursuant to this Agreement will not infringe any patent,
copyright, trademark, trade secret, publicity right or any other
intellectual property right of a third party. Each party further
represents, warrants, and covenants that it will comply with all applicable
laws, rules, and regulations, including but not limited to consumer
protection and Federal Trade Commission laws and regulations in its
performance hereunder.
B. At all times throughout the Term of this Agreement, Viasource represents
and warrants that: (i) it will comply with the standards set forth in this
Agreement and Exhibits thereto, and will provide its Services with a level
of accuracy, quality, completeness, and timeliness which meets or exceeds
prevailing industry standards and the specific Gateway Performance
Standards established herein; and (ii) its Services do not infringe upon or
otherwise violate any patent, copyright, trademark, trade secret, know-how,
moral rights or other intellectual property rights (individually or
collectively, an "Intellectual Property Right") of any third party.
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C. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY,
AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, VIASOURCE AGREES THAT GATEWAY MAKES NO
REPRESENTATIONS OR WARRANTIES CONCERNING THE VOLUME OF BUSINESS TO BE
CONDUCTED BY VIASOURCE UNDER THIS AGREEMENT OR THE REVENUE OR PROFITS THAT
MAY BE GENERATED FROM ANY SUCH BUSINESS. VIASOURCE UNDERSTANDS THAT GATEWAY
MAY USE OTHER SUPPLIERS TO PROVIDE INSTALLATION AND ORIENTATION SERVICES TO
CUSTOMERS.
VIII. LIMITATION OF LIABILITY/DISCLAIMER. EXCEPT FOR DAMAGES RESULTING FROM (1)
A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF ITS OBLIGATIONS
UNDER SECTION VII ("CONFIDENTIALITY") OR (2) A PARTY'S OBLIGATION TO INDEMNIFY
THE OTHER PARTY HEREUNDER, INCLUDING BUT NOT LIMITED TO THOSE OBLIGATIONS
ARISING UNDER SECTION IX ("INDEMNIFICATION") HEREOF, EXCEPT AS TO THE NEGLIGENCE
SPECIFIED AT SECTION IX.B (iii), OR (3) A PARTY'S BREACH OF SECTION IV
("TRADEMARKS") OF THIS AGREEMENT (IN EACH CASE, WITH RESPECT TO WHICH THESE
LIMITATIONS SHALL NOT APPLY), UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS.
IX. INDEMNIFICATION.
A. Viasource shall indemnify, defend and hold harmless Gateway, its affiliates
and their respective officers, directors, employees, and contractors from
and against any and all damages, penalties, losses, liabilities, judgments,
settlements, awards, costs and expenses (including reasonable attorneys'
fees), arising out of or related to any claims, assertions, demands, causes
of action, suits, proceedings or other actions, whether at law or in equity
("Claims"), alleging (i) that any Services, or the sale or use of any part
thereof infringes, misappropriates or violates any patent, copyright,
trademark, trade name, trade secret or other intellectual property right of
a third party, (ii) that Services, Viasource or its employees violate any
applicable law, rule, regulation or judicial or administrative order, or
(iii) any injury (including death) or damage to person or personal property
to the extent it is caused by Viasource or any person, firm or corporation
directly or indirectly employed or engaged by Viasource to perform the
Services. Gateway shall provide timely written notice of any Claim
described in this Section IX, and provide reasonable information and
assistance to Viasource, at Viasource's expense, in the defense or
settlement of such Claims. Gateway, at its option and cost, may be
represented by and participate through its own counsel in such suit,
action, proceeding, or settlement. Viasource shall not agree to any
settlement or other resolution of any claim that adversely impacts Gateway
or its customers without the prior written consent of Gateway. If, for any
reason, Viasource refuses or otherwise declines to defend any Claim
described in this Section IX, Gateway shall have the right to add Viasource
as a defendant in the applicable proceeding, and Viasource hereby waives
all objections to personal jurisdiction in such proceeding.
B. Gateway shall indemnify, defend and hold harmless Viasource, its affiliates
and their respective officers, directors, employees and contractors from
and against any and all damages, penalties, losses, liabilities, judgments,
settlements, awards, cost and expenses (including reasonable attorneys'
fees), arising out of or related to any Claims, alleging (i) that any
Gateway branded products infringes, misappropriates or violates any patent,
copyright, trademark, trade name, trade secret or other intellectual
property right of a third party, (ii) that the Gateway branded products,
Gateway or its employee, violate any applicable law, rule, regulation or
judicial or administrative order, or (iii) any injury (including death) or
damage to person or tangible personal property to the extent it arises out
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of or is in connection with the negligence of or the intentional acts of
Gateway. Viasource shall provide timely written notice of any Claim
described in this Section IX, and provide reasonable information and
assistance to Gateway, at Gateway's expense, in the defense or settlement
of such Claims. Viasource, at its option and cost, may be represented by
and participate through its own counsel in such suit, action, proceeding,
or settlement. Gateway shall not agree to any settlement or other
resolution of any claim that adversely impacts Viasource without the prior
written consent of Viasource. If, for any reason, Gateway refuses or
otherwise declines to defend any Claim described in this Section IX,
Viasource shall have the right to add Gateway as a defendant in the
applicable proceeding, and Gateway hereby waives all objections to personal
jurisdiction in such proceeding.
X. TERM; TERMINATION
A. TERM. Unless earlier terminated as set forth herein, this Agreement
shall be effective upon the Effective Date and shall continue for a
term of three (3) years from the Effective Date, provided that either
party may elect to terminate this Agreement on the date that is ninety
(90) days after each anniversary of the Effective Date if the parties
undertake and are unable to renegotiate the Base Service Fee payable to
Viasource set forth on Exhibit D as provided therein and either party
delivers notice of termination at the end of the 30-day negotiation
period described in Section D. In such event, the Agreement will
terminate ninety (90) days after the anniversary date of the Effective
Date. In addition, Gateway may terminate this Agreement for convenience
by providing Viasource with written notice of termination at least
ninety (90) days before the proposed termination date.
B. TERMINATION BY EITHER PARTY. This Agreement may be terminated at will
by either party if the other party (i) fails to perform any of its
obligations under this Agreement in any material respect, and such
failure continues for thirty (30) days after the party's receipt of
written notice of such failure, or (ii) becomes insolvent, makes an
assignment for the benefit of creditors, has a receiver appointed for
its property, or files a petition in bankruptcy, in which event this
Agreement shall terminate without notice effective immediately before
the occurrence of any such event or act.
C. TERMINATION BY GATEWAY. This Agreement may be terminated immediately by
Gateway without penalty in the event (i) Gateway is alleged to infringe
any third party intellectual property right in connection with its
purchase of Services, (ii) Viasource fails to comply with the covenants
and obligations imposed on it under any of its loan agreements, or
(iii) one or a series of transactions occurs that results in a change
in control of Viasource. A "change in control" means the occurance of
(i) any sale, transfer, issuance or redemption or series of sales,
transfers, issuances or redemptions (or any combination thereof) of
shares of Viasource's capital stock by the holders thereof or by
Viasource which results in any person or entity or group of affiliated
persons or entities having the ability to control or direct the votes
of at least thirty percent (30%) of Viasource's voting power, including
the ability to cause the Board of Directors of Viasource to recommend
action to its shareholders; or (ii) any sale of all or substantially
all of the assets of Viasource (including any sale of the business
subject to this Agreement).
D. EFFECT OF TERMINATION. Termination of this Agreement will not release
either Gateway or Viasource from its obligations or discharge any
liability which has been incurred by either party prior to and
including the effective date of termination. The provisions of Sections
III, IV, V, VI, VII, VII, IX, XI, XII, XIII.A and XIV shall survive any
termination of this Agreement.
XI. SOLICITATION OF EMPLOYEES. During the term of this Agreement and for a
period of twelve (12) months after any employee's engagement in the performance
of this Agreement, the parties agree not to directly solicit the other party's
employees or subcontractors who are directly involved in the performance of this
Agreement for employment in such party's company or affiliated companies,
provided that the parties shall not be liable for solicitations by a recruiting
company where the party retaining the recruiting company did not request such
recruiting company to target the other party's employees, and further provided
that any employee of any party who has posted their resume on the Internet, or
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who replies to employment advertisements, is specifically excluded from this
clause. Publicizing available employment positions in newspapers or other such
media of mass communication shall not be deemed active solicitation for
employment.
XII. INSURANCE.
A. Viasource shall, at its own expense, secure and maintain, during the term
of this Agreement and for a period of three (3) years after its
termination, and shall require the same of its agents and subcontractors,
the following insurance with insurance companies rated "A-" or better, with
a minimum size rating of "VIII", by Bests Insurance Guide and Key Ratings,
or with insurance companies satisfactory and acceptable to Gateway and
shall furnish to Gateway certificates of insurance evidencing such
insurance prior to the provision of Installation and Orientation Services
pursuant to this Agreement. Said certificates shall contain a provision
whereby the policy and/or policies shall not be canceled or altered without
at least thirty (30) days prior written notice to Gateway. Viasource will
provide a copy of the endorsement or "blanket" wording to the policies as
evidence that Gateway has been named on the policies. With the exception of
Workers' Compensation and Employee Crime Policy, every contract of
insurance obtained by Viasource hereunder shall name Gateway as an
additional insured therein and shall be endorsed to be primary insurance
for Gateway and will not look for contribution from any of Gateway's
insurance policies. In addition, every contract of insurance obtained by
Viasource hereunder shall be endorsed to provide a waiver of subrogation in
favor of Gateway. The following minimum insurance coverages will be
continuously maintained for the term of this Agreement.
1. Workers' Compensation and Employer's Liability Insurance covering
Viasource's Employees which shall fully comply with the statutory
requirements of all state laws as well as federal laws which may be
applicable. Employer's Liability must have limits of not less than One
Million Dollars ($1,000,000) each accident, bodily injury by accident;
One Million Dollar ($1,000,000) policy limit, bodily injury by disease;
and One Million Dollars ($1,000,000) each employee, bodily injury by
disease.
2. General Liability Insurance including coverage for: Gateway Computers
and Completed Operations, Premises/Operations, Personal Injury and
Advertising Injury, Bodily Injury and Broad Form Property Damage, Broad
Form Contractual Liability, Independent Contractors Liability, "Hostile
Fire" Pollution coverage, and Employees as Additional Insureds. This
insurance must be written on an Occurrence Form with a per occurrence
limit of One Million Dollars ($1,000,000) and a general aggregate limit
of Two Million Dollars ($2,000,000). Defense must be provided in
addition to the limits.
3. Errors and Omissions Insurance including coverage arising out of a
negligent act, error or omission of Viasource, its employees, or its
subcontractors (including, but not limited to, a breach of warranty)
resulting in the failure of any of their products or services to
perform the function or serve the purpose intended. This insurance will
have minimum limits of One Million Dollars ($1,000,000) each claim and
Two Million Dollars ($2,000,000) in the annual aggregate.
4. Automobile Liability coverage on owned, non-owned, and hired vehicles
in the amount of One Million Dollars ($1,000,000) combined single
limit.
5. Umbrella Liability Insurance on an Occurrence Form with a minimum per
occurrence and aggregate limits of Twenty Five Million Dollars
($25,000,000) excess of all of the above underlying coverages. This
insurance shall be no less broad than the underlying insurance
specified above.
6. Employee Crime Policy with a combined single and aggregate limit of ten
million dollars ($10,000,000). Insuring agreements under such coverage
should include, but are not limited to, employee dishonesty,
depositor's forgery, loss of monies/securities inside and outside the
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premises, extortion, theft, disappearance and destruction. This policy
shall provide sexual abuse/molestation coverage. The Employee Crime
Policy must be in place prior to any performance of the Viasource
Installation and Orientation Services provided hereunder.
7. Viasource shall maintain adequate coverage for property of Gateway or
its customers in Viasource's care, custody or control.
B. In the event Viasource is unable to obtain any of the above minimum
insurance coverages, Viasource shall obtain an irrevocable confirmed Letter
of Credit in such amount in Gateway's favor which is available for payment
of Gateway's drafts at sight in the event Viasource's Products fail to
perform under this Agreement, or in the event Gateway has any other claim
hereunder that exceeds Viasource's ability to pay in a timely manner.
Payment shall be made against presentment of Gateway's draft accompanied by
a written statement from Gateway's insurance company of the amount of the
loss. The advising bank shall be located in the United States.
XIII. OTHER COMMITMENTS.
A. EXCLUSIVITY. Viasource agrees that during the Term of this Agreement and
thereafter for a period of twelve (12) months it will not execute any
agreement or actively negotiate with any person to provide installation
and/or orientation services for personal computers, either alone or in
connection with the installation and/or setup of Internet access services
or networking products or services. The provisions of this section shall
not prevent Viasource from providing Internet orientation services to third
parties in connection with the installation of broadband services that are
not marketed with personal computers.
B. PURCHASE OF COMPUTER PRODUCTS. During the Term, Viasource will obtain from
Gateway all personal computers, servers and other technology products and
services ("Computer Products") (i) to satisfy its entire requirements for
to the extent such Computer Products are needed by Viasource to perform its
obligations under this Agreement, and (ii) for its internal use, so long as
a particular Computer Product is available from Gateway and is priced
reasonably competitively. Viasource further agrees to make Gateway Computer
Products the default hardware for any employee purchase program conducted
by Viasource.
C. USE OF GATEWAY SYSTEMS
1. Viasource technicians shall utilize Gateway's call tracking
software and other systems (currently Vantive and JD Edwards, and
anticipated to include Seible) to track and record calls and
disposition of events escalated into the helpdesk and for other
purposes as may be reasonably designated by Gateway.
2. Gateway grants and Viasource accepts a non-assignable,
non-transferable, limited, non-royalty bearing and non-exclusive
license to use the Licensed Software and Documentation for Vantive
and JD Edwards (collectively "Licensed Software") for the purpose
of providing the Services set forth in this Agreement. In
addition, the Licensed Software shall be used by Viasource solely
in conjunction with providing the Services set forth herein and
only at Viasource's location(s) approved by Gateway in writing.
Only Viasource's employees providing Services to Gateway shall use
the Licensed Software. It is further understood and agreed that
Viasource is not granted and shall not have the right to use the
Licensed Software to render service bureau, time sharing or
similar services to any third party. Upon termination of this
Agreement, the rights granted to Viasource shall terminate.
3. Except as set forth in subparagraph 2 above, Viasource is
prohibited from copying, reproducing, modifying, decompiling,
disassembling, reverse engineering, leasing, sale or bartering of
the Licensed Software or any technology associated with the
Licensed Software. Specifically with regard to The Source,
Viasource is only allowed to access the information designated by
Gateway in writing. Any further access by Viasource or Viasource's
employees is strictly prohibited.
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XIV. GENERAL PROVISIONS
A. FORCE MAJEURE. If any party to this Agreement is rendered unable, wholly or
in part, by a major event beyond the reasonable control of such party
("force majeure") to carry out its obligations hereunder, that party shall
give to the other party prompt written notice of the force majeure with
reasonably full particulars concerning it; thereupon, the obligations of
the party giving notice, so far as they are affected by the force majeure,
shall be suspended during, but not longer than, the continuance of the
force majeure. The affected party shall use all reasonable diligence to
remove the force majeure situation as quickly as practicable.
B. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors and neither party shall be deemed an agent, representative, or
partner of the other party. Neither party shall have any right, power or
authority to enter into any agreement of or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. This
Agreement shall not be interpreted or construed to create an association,
agency, joint venture or partnership between the parties or to impose any
liability attributable to such a relationship upon either party.
C. NOTICE. Any notices, requests and other communications required or
permitted to be given under this Agreement shall be in writing and (i)
delivered in person, which delivery the recipient agrees to acknowledge in
writing, (ii) deposited in the United States postal service mail postage
fee prepaid, for mailing by first-class, registered or certified mail, or
(iii) sent by a nationally recognized overnight courier service, addressed
as follows:
If to Gateway: If to Viasource:
Gateway Companies, Inc. Viasource Communications, Inc.
4545 Towne Centre Court 200 Broward Ave., 21st floor
San Diego, CA 92121 Fort Lauderdale, Florida 33301
Attention: General Counsel Attention: Colin McWay, Exec. VP,
Telephone: (858) 799-3401 Business Development
Telephone: (954) 678-3516
or to such other address or individual as either party may specify from
time to time by written notice given by such party. Any notice shall be
deemed given on the earlier of: (a) the date it was so delivered in person;
or (b) two (2) days from the date it was so delivered by courier; (c) four
(4) days from the date mailed; or (d) the date on which receipt is
acknowledged by the recipient. Communications by email shall not be deemed
to be in writing for any purpose under this Agreement.
D. WAIVER. Except as expressly provided herein, no failure or delay by any
party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. Any provision of this Agreement shall be deemed
waived if, and only if such waiver is in writing and signed by the party
against whom the waiver is to be effective.
E. INCORPORATION OF EXHIBITS. The Exhibits identified in this Agreement are
incorporated herein by reference and made a part hereof.
F. ENTIRE AGREEMENT & AMENDMENTS. This Agreement, together with all exhibits
attached hereto, constitute the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties
with respect to the subject matter of this Agreement. The Original
Agreement is terminated as the Effective Date of this Agreement. This
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Agreement shall not be modified or amended except pursuant to an instrument
in writing executed and delivered by authorized representatives of each of
the parties hereto.
G. ASSIGNMENT. Neither party may assign (voluntarily, by operation of law or
otherwise) or transfer this Agreement or any right, interest or benefit
under this Agreement without the prior written consent of the other party,
except to an entity that is a member of the consolidated group of which the
assigning party is a member. Any attempted assignment or transfer by a
party without such written consent shall be void and of no effect. Subject
to the foregoing, this Agreement shall be fully binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
H. GOVERNING LAW; VENUE. This Agreement shall be interpreted, construed, and
enforced in all respects in accordance with the laws of the State of New
York, without regard to its conflicts of law principles. The parties agree
that any legal action by Gateway against Viasource relating to this
Agreement shall be commenced in a court of competent jurisdiction in the
State of New York and that that any legal action by Viasource against
Gateway relating to this Agreement shall be commenced in a court of
competent jurisdiction in the State of South Dakota.
I. SEVERABILITY. Should any provision of this Agreement be held to be invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of the remaining provisions hereof.
J. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the Effective Date.
GATEWAY COMPANIES, INC. VIASOURCE COMMUNICATIONS, INC.
By: Signature not legible By: /s/ Craig A. Russey
----------------------------- ----------------------------
Name: Name: Craig A. Russey
--------------------------
Title: Title: President and CEO
--------------------------
Date: June 20, 2001 Date: June 12, 2001
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