Exhibit 10.23
SUPPORT SERVICES AGREEMENT
BETWEEN
FIVECOM, INC.
AND
MAINECOM SERVICES
Effective April 30, 1996
This agreement is made as of April 30, 1996, by and between MaineCom
Services ("MaineCom"), a Maine corporation having its principal place of
business in Augusta, Maine, and FiveCom, Inc. ("FiveCom"), a Massachusetts
corporation with its principal place of business in Waltham, Massachusetts.
MaineCom and FiveCom are singularly a "Party" and collectively "the Parties."
WHEREAS, the Parties are willing to provide services from and to one
another;
NOW THEREFORE, it is hereby agreed as follows:
ARTICLE I - GENERAL SCOPE OF SERVICES
The Parties shall provide support services to each other as described
in purchase orders that are issued from time to time and accepted in writing by
the Party to be charged.
ARTICLE II - PAYMENT FOR SERVICES
The purchase order shall state the cost for the service(s) to be
provided. The stated cost shall be no less than the marginal cost of the
activity (e.g. labor, expenses, and/or material) contracted for. The Parties
shall submit itemized invoices for services rendered to the other, including
taxes that may be applicable to such services pursuant to the terms and
conditions of the purchase orders. Bills for services rendered shall be
presented on a monthly basis, unless other arrangements are agreed to for a
specific activity or order. All invoices shall have adequate documentation to
justify all charges, including labor, expenses, and material. Unless otherwise
agreed, invoices shall be paid in full within thirty (30) days to the extent
that costs are not disputed. Simple annual interest at the prime rate then in
effect at The First National Bank of Boston, plus 1.5%, shall accrue on any
undisputed invoice items not paid by the due date.
ARTICLE III - DISPUTE RESOLUTION
Each party shall have the right to send notice to the other indicating
it disputes an interpretation of this Agreement or a matter relating to an
amount billed. In the event of a dispute, the Parties shall make reasonable and
prompt efforts to settle the matter between themselves within fifteen (15) days
of the notice of dispute. If a resolution is not forthcoming within that time,
the parties agree that the question shall be finally resolved by an award of
arbitrators who shall be certified by the American Arbitration Association named
as follows:
(i) the Party sharing one side of the dispute shall name an arbitrator
and give written notice thereof to the Party sharing the other side of the
dispute;
(ii) the Party sharing the other side of the dispute shall, within
fourteen (14) days of receipt of such written notice, name an arbitrator; and
(iii) the arbitrator so named shall within fifteen (15) days after
naming of the latter of them, select an additional arbitrator. If such
additional arbitrator is not selected within fifteen (15) days of the
appointment of the latter of the arbitrators, the Party sharing either side of
the dispute may seek to appoint such third arbitrator by applying to the
American Arbitration Association. The arbitrators shall proceed promptly to hear
and determine the matter in controversy. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitrators shall be instructed that their decision must be
made within forty-five (45) days after the appointment of the third arbitrator,
subject to any reasonable delay due to unforeseen circumstances.
The decision of the arbitrators shall be in writing and signed by the
arbitrators or a majority of them and shall be final and binding upon the
Parties, and the Parties shall abide by the decision and perform the terms and
conditions thereof. Unless otherwise determined by the arbitrators, the fees and
expenses of the arbitrators shall be borne by the Party losing in these dispute
resolution procedures, or if no Party prevails in full, as allocated by the
arbitrators based on the relative merits of the Parties' positions. Judgment
upon the award rendered may be in any court having jurisdiction or application
may be made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. All arbitration shall be conducted in
Portsmouth, New Hampshire, unless the Parties agree otherwise.
ARTICLE IV - TERM OF CONTRACT
This Agreement shall commence on the date first written above and
continue until terminated in writing by either party. The date of termination
shall be no less than two (2) months after the non-terminating party has
received notice of the termination. The parties will negotiate completion or
cessation of any work in progress at the time of the termination notice, with
the non-terminating Party having the right to complete as much work as can be
reasonably and ably done by the date of termination. Any materials or purchases
financially committed or prepaid at the time of the notice of termination will
be honored by the other party.
The Parties agree that MaineCom has incurred costs since November 22,
1995 on behalf of FiveCom related to the Stock Subscription Agreement, as
amended, and the FiveCom closing which predate the date of this Agreement. The
Parties therefore also agree that MaineCom shall present invoices to FiveCom for
reimbursement of these costs, with the understanding that the costs billed will
meet the conditions stated above.
ARTICLE V - CHANGES
No waiver, alteration, amendment, consent, or modification of any of
the provisions of this Agreement shall be binding unless in writing and signed
by a duly authorized representative of both Parties.
ARTICLE VI - ASSIGNMENT
Either party my assign any of its rights or obligations hereunder upon
receipt of the prior written consent of the other.
ARTICLE VII - FORCE MAJEURE
Force Majeure means an event that is beyond the reasonable control of,
and without the fault or negligence of, the party claiming Force Majeure, which
delays, hinders or prevents performance of that Party's obligations under this
Agreement. Neither party shall be liable to the other for loss or damage
resulting from (i) any delay in performance, in whole or in part, or (ii)
non-performance of its contractual obligations, in whole or in part, insofar as
such delay or non-performance is caused by Force Majeure, provided that the
party invoking Force Majeure provides written notice to the other party of such
invocation and of the circumstances giving rise to such condition. To the extent
possible, each Party shall take reasonable steps to correct or alleviate the
circumstances that led to the Force Majeure event.
ARTICLE VIII - INSURANCE AND INDEMNIFICATION
The Parties will maintain the following coverage, naming the other
Party to this Agreement as an additional insured, as applicable:
(a) Workers' Compensation Insurance that complies with the
provisions of applicable state law.
(b) Employer's Liability Insurance with limits not less than
$1,000,000 each occurrence;
(c) General Liability Insurance with limits not less than
$1,000,000 combined bodily injury and property damage
liability; and
(d) Automobile Liability Insurance with limits not less than
$1,000,000 combined bodily injury and property damage.
Each party shall indemnify, and hold harmless the other, its directors,
officers, employees, contractors, agents, successors, and assigns from and
against, any actions, penalties, claims, costs (including, but not limited to,
reasonable attorney's fees), or damages of any nature arising out of or related
to the services performed pursuant to this Agreement and shall defend the other
from such claims.
ARTICLE IX - GENERAL LIMITATIONS OF LIABILITY AND WAIVER
Services provided by the Parties hereunder shall be performed in a
prudent, professional and workmanlike manner; products provided shall meet all
performance criteria as specified in the purchase order. If any such service or
product fails to conform to those standards, the Party claiming default shall
provide the other Party with the opportunity to perform the service, if
practicable; and, if not practicable, the Party claiming default may complete
the services itself, or at its election, have such services performed by a third
party at the expense of the other Party. The non-defaulting Party, in addition
to other remedies provided for herein, can seek claims for direct, incidental,
indirect, consequential, or other damages of any nature connected with or
resulting from non-performance of this Agreement, including other remedies
available by law.
ARTICLE X - NOTICE
All communications and notices by MaineCom to FiveCom under this
Agreement shall be sent by fax with the original mailed, first class, as
follows:
FiveCom, Inc. Fax ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: Controller
All communications and notices by FiveCom to MaineCom under this Agreement shall
be sent to and addressed as follows:
MaineCom Services Fax ▇▇▇-▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Either party may at any time change its address by providing notice to the
other.
ARTICLE XI - CHOICE OF LAW
Orders placed from FiveCom to MaineCom shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts;
orders placed from MaineCom to FiveCom shall be governed by and construed in
accordance with the laws of the State of Maine.
ARTICLE XII - MISCELLANEOUS
This Agreement constitutes the entire Agreement between the Parties for
the services offered hereunder, and supersedes all prior representations and
Agreements, whether written or oral, between the Parties as to such services.
WHEREOF, the Parties hereto have caused this Agreement to be executed
in duplicate by their duly authorized representatives, to become effective as of
the date first written above.
MaineCom Services FiveCom, Inc.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President