Exhibit 10.26
AGREEMENT FOR THE SUPPLY OF CONFERENCING SERVICES
This Agreement made between:
CONCERT GLOBAL NETWORKS LIMITED, a company organised and existing under the
laws of England, with its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ (hereinafter "Concert"), and
ACT TELECONFERENCING SERVICES, INC., a company organised and existing under
the laws of Minnesota, with its principal office located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter "ACT"),
(individually referred to herein as a "Party" and collectively as the
"Parties");
WHEREAS, Concert desires to implement a seamless global audio conferencing
platform that will enable Concert to enhance its current conferencing service
design and capabilities, and establish a conferencing support function for
Authorized distributors and end-users of Concert conferencing services; and
WHEREAS, Concert issued a Technical Requirements document, dated March 30, 1998,
for supply of Teleconferencing Support Services which states the requirements
for conferencing services to meet certain of business and technical requirements
(Set forth as Attachment 1, incorporated herein and referred to as the "SOR");
and
WHEREAS, Concert desires to procure and ACT desires to provide (procure,
install, manage, operate and maintain) a conferencing service which meets the
requirements and specifications of the SOR and the Supplier Support
Requirements, dated 6/23/98 (set forth as Attachment 2, incorporated herein and
referred to as the "Support Requirements" and the Concert Global
Teleconferencing Proposal from ACT, dated 3/5/98, as amended 3/12/98 (set forth
as Attachment 3, incorporated herein and referred to as the "Response); and
WHEREAS, the Parties desire to enter into a services agreement for conferencing
services that shall become effective upon successful completion of the
establishment and testing phase of ACT's proposed solution architecture for the
supply of conferencing;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
conditions herein contained, Concert and ACT agree as follows:
1. DEFINITIONS
In this Agreement the following expressions shall, unless the context
requires otherwise, have the following meanings:
"Agreement" means this document made between Concert and ACT, including
attachments, appendices, exhibits, and/or schedules hereto.
"Authorized Distributor" means British Telecommunications plc, MCI
Communications Corporation, and any entity with which Concert or BT or MCI
has agreements as a subdistributor of Concert services.
"Conferencing Services" means the services provided by ACT to Concert to
meet the requirements of the SOR and the Support Requirements and as more
fully detailed in this Agreement.
"Effective Date" means the date on which the Parties have agreed to begin
moving End-Customers onto the Conferencing Service following the Acceptance
of the Deliverables per the terms of the Contract for the Supply of
Conferencing Services Design, Development and Implementation between the
Parties.
"End-Customer" shall mean the party with whom Concert or one of its
Authorized Distributors has contracted to provide Concert conferencing
services. For clarity, this definition does not include Concert, its
personnel or internally-utilized contractors.
"Information" shall mean all information whether written or oral or in any
other form including, but not limited to documentation, specifications,
reports, data notes, drawings, models, patterns, samples, software,
computer outputs, designs, circuit diagrams, inventions (whether patentable
or not) and know-how obtained from either party in connection with the
performance of the Agreement, and all information in relation to Concert's,
Authorized Distributors' or End-Customers' affairs, business or business
practices, which comes to ACT's knowledge during the period of this
Agreement, including but not limited to the existence of this Agreement and
any provisions of this Agreement.
"Intellectual Property" shall mean any patent, trade secret, copyright,
know-how, network designs, system designs and platform development or other
intellectual property provided or developed pursuant to this Agreement.
"Intellectual Property Rights" shall mean patents, utility models, design
patents, registered designs, copyright of any kind, semi-conductor
topography rights, design rights and any rights of a similar nature in any
country of the world, including rights in trade secrets and confidential
information where such rights arise and includes applications therefor but
excludes trademarks.
"Platform" means the conferencing system owned and operated by ACT and
utilised by ACT to provide the Deliverables.
"Response" means ACT's Global Teleconferencing Proposal, dated March 5,
1998, with amended pricing thereafter, responding to Concert's SOR and
duplicated in Attachment 3 to this Agreement.
"Software" means all software relevant to Concert in respect of the Project
including but not limited to all source code and object code whether in
machine readable, optically readable or any other format.
"SOR" shall mean Concert's Teleconferencing Support Services Technical
Requirements, dated 5/28/98 and duplicated in Attachment 1 to this
Agreement.
"Specifications" shall mean the SOR, the Support Requirements and the
Response collectively.
"Support Requirements" shall mean the final operational conference elements
that are required be Concert and that will be available from ACT and are
set forth in Attachment 2.
2. TERM
This Agreement shall commence on the Effective Date and shall remain in
effect three (3) years thereafter (the "Initial Term"). This Agreement
shall automatically renew for three successive one (1) year terms ("Renewal
Term(s)") unless and until a Party gives written notice of termination to
the other Party not later than six (6) months prior to the end of the
Initial Term or any Renewal Term. Notwithstanding the foregoing, this
Agreement may be earlier terminated by either Party pursuant to Section 15
hereof. The rights and obligations of the Parties as provided in Sections
11, 12, 14, 15, 16, 18, 19, 20, 21, 22, 23, 27, and 28 shall survive the
date of termination until fully performed in accordance with the terms of
said Sections.
3. PAYMENT
3.1 The price for the Conferencing Services is set forth in
Attachment 4. Charges for the Conferencing Services shall begin
the first calendar day after the Effective Date of this
Agreement. The prices in Attachment 4 shall be evaluated
beginning 9 months after the Effective Date. In the event a
revised Concert forecast and/or revised Term can result in lower
costs for ACT, then ACT shall reduce Concert's prices accordingly
as agreed in writing by the Parties. Such writing shall replace
Attachment 4 to this Agreement.
3.2 Invoices will be sent by ACT to Concert monthly. All invoices
submitted for payment will be accompanied by the appropriate
documentation such as electronic reporting and delivery
information as agreed to by the Parties. ACT must include a valid
purchase order number (which shall be provided by Concert) on its
invoice. Any sum due ACT hereunder shall be invoiced and paid in
accordance with Attachment 5.
3.3 Concert agrees to pay ACT in United States Dollars to the account
specified by ACT within 30 days of the receipt by Concert of the
invoice for all amounts invoiced. In the event Concert provides
Notice to ACT of a bona fide dispute within the same 30-day
period, Concert may withhold payment of an amount equal to the
amount of the disputed portion of the invoice. If the parties are
unable to resolve the dispute within an additional 15 days, the
dispute shall be escalated to the appropriate executives in each
Party for resolution. Late payment shall not constitute a
material breach of this Agreement.
4. ACT'S UNDERTAKINGS
ACT shall be responsible for providing the Conferencing Services in
accordance with Concert's requirements as set forth in Attachments 1
and 2, which may be amended from time to time by agreement between the
Parties. ACT warrants and represents that the Conferencing Services
will meet the Specifications. ACT shall install, maintain, and upgrade
the Conferencing Services per the terms of this Agreement.
5. CONCERT'S UNDERTAKINGS
During the term of this Agreement, ACT will be the preferred provider
of (audio, video, data, and fax) teleconferencing services for
Concert. The Conferencing Services shall be branded as Concert
services, and Concert shall promote the sale of the Conferencing
Services to End-Customers by Authorized Distributors. Concert shall
indemnify and hold harmless ACT for promotional language that exceeds
the limitations of the Conferencing Services as set forth in this
Agreement.
6. MIGRATION SCHEDULE AND MIGRATION PROCEDURE
6.1 In the event it is foreseen that a migration date cannot be met
or a migration cannot be completed by the scheduled date, ACT
agrees to utilise all applicable resources within its control to
resolve the problem.
6.2 All work associated with a migration must be performed in a good
and workmanlike manner, in accordance with manufacturer and
industry standards and specifications.
6.3 During installation, ACT will perform a 48-hour test procedure to
verify that the Conferencing Services continue to meet the
Quality of Service ("QOS") Requirements of Attachment 2, Section
10.6.
6.4 If during the 48-hour test period, the Conferencing Services fail
to meet the QOS Requirements, ACT shall repair the problem and
provide an additional test period.
6.5 All End-Customers shall be treated by ACT as new accounts for the
purpose of this Agreement.
6.6 Additional Migration plans and schedules shall be agreed between
the Parties and shall be appended to and made part of this
Agreement.
7. MAINTENANCE SCHEDULE AND SECURITY/CAPACITY/DISASTER RECOVERY
3
7.1 ACT Maintenance shall include such work as necessary to conform
the Conferencing Services to the requirements of this Agreement.
7.2 ACT will provide to Concert Notice at least 5 days in advance of
planned (non-corrective) maintenance windows that may affect the
Conferencing Services. If such involves a single point of failure
for the Conferencing Services, then Concert may request the
postponement of such outage; and ACT shall use best efforts to
accommodate a Concert objection to the outage or request for
postponement.
7.3 ACT shall have, during the life of this Agreement, up-to-date
documentation of the physical configuration of the Platform,
including locations and detailed information about all equipment,
circuits and Software, as well as documentation of ACT's disaster
recovery and security mechanisms and contingency plans. ACT shall
give Notice to Concert of any alteration in a Conferencing
Services security mechanism or disaster recovery plan.
7.4 Each Party shall give Notice to the other Party of the names of
the Conferencing Services security/disaster recovery points of
contact. In the event of disaster or security breach, each point
of contact shall be the person responsible for coordinating and
directing action by that party to resolve a security breach or
disaster. These points of contact shall periodically stage
mutually agreed upon tests of the disaster recovery plans and
test response to security breaches; and ACT shall provide prompt
Notice to Concert of the results of each test and each response.
ACT shall promptly provide Notice to Concert of any security
breach that did or potentially could impact the Conferencing
Services and ACT's response.
7.5 Additional Maintenance and Security/Capacity/Disaster plans and
schedules shall be agreed between the Parties and shall be
appended to and made part of this Agreement.
8. DEFECT NOTIFICATION
8.1 ACT will inform Concert of any known defects in the Conferencing
Services, which might materially interfere with operation, or use
of the Conferencing Services as proposed in the Specifications.
ACT warrants that to the best of its knowledge it knows of no
defect in the Conferencing Services, including security
mechanisms, "Year 2000" problems, viruses (code embedded in the
services whose purpose is to halt effective operation or use of
the Conferencing Services on conditions set by or triggered by an
event or a person other than Concert), or similar problems.
8.2 ACT shall fix any such defects as fast as is practicable under
industry standards. If Concert believes that ACT is not fixing
the defect as fast as is practicable under industry standards,
then Concert may escalate the situation to any ACT senior
management person deemed appropriate by Concert, and ACT shall
utilise all available resources to remedy the defect.
9. PERSONNEL
9.1 In no event shall a Party, or employees or agents of that Party,
be or be considered employees or agents of the other Party.
Except as stated herein, matters governing the terms and
conditions of employment of a Party's employees and agents are
entirely within the control of that Party. Except as stated
herein, each Party's business matters such as work schedules,
wage rates, withholding income taxes, disability benefits or the
matter and means through which a party's obligations to its
employees or other agents will be accomplished are entirely
within the discretion of the Party.
9.2 Each Party will be responsible for the supervision, direction and
control of its own personnel while engaged in performance of
activities under this Agreement.
9.3 When this Agreement requires performance by ACT or Concert
employees or other agents on the other Party's premises, the
performing Party shall carry and maintain Worker's Compensation
and Employer's Liability Insurance covering its employees or
other agents (or require its agents to carry and maintain such
insurance) in accordance with the statutory requirements
applicable to the location where services are to be performed.
The performing Party shall also carry and maintain adequate
4
insurance coverage (or require its agents to carry and maintain
such insurance) against losses or damages caused by the
performing Party's (including its other agents) negligence.
9.4 ACT shall determine the ACT personnel to support the Conferencing
Services. ACT shall, upon reasonable request by Concert, replace
any personnel employed by ACT engaged in the performance of the
Conferencing Services under this Agreement, with another selected
by ACT and acceptable to Concert. Concert shall not be liable for
costs incurred by ACT to replace any personnel. At no point in
time shall ACT be obligated to inform Concert of ACT's reasons
for replacing or not assigning ACT personnel. Additionally,
Concert shall address any ACT personnel-related concerns only to
the ACT designated point of contact or that person's management;
and shall not address such concerns directly to any other ACT
personnel.
9.5 Each Party will comply with all applicable governmental
regulations, pay all applicable taxes, and exercise control over
its personnel. Each Party shall be responsible for its own
employee taxes or other governmental taxes, fines, or fees
(including all such taxes, any interest or penalties and
reasonable attorneys' fees and costs related thereto), and shall
indemnify and hold harmless the other Party from any liability
therefor.
9.6 ACT shall obtain all approvals, permits, and licenses and pass
all inspections, required for Conferencing Services under
applicable law. Concert shall assist in obtaining such, were
necessary.
9.7 ACT may perform its obligations through its subsidiaries or
affiliates, or through the use of ACT-selected independent
subcontractors or manufacturers; provided that ACT shall be
solely responsible for the performance, duty, quality, and any
breach by an agent of ACT, as if such agent were ACT. ACT shall
obtain (or cause its subcontractors to obtain) any necessary
permits, business licenses, bonds, or other governmental
authority to perform its obligations under this Agreement.
10. AGREEMENT CHANGE PROCEDURE
10.1 The representatives of Concert and ACT as nominated in
Section 28.7 hereof (`Notices'), shall be the only people who may
make or receive a formal proposal for a variation to this
Agreement to or from the other Party.
10.2 No such variation shall be effective unless confirmed in
writing by the other Party. A Party shall confirm to the other
within 10 days of receipt of a written instruction to proceed
with any such variation or its intention to negotiate the
proposed variation in accordance with Section 10.3 below.
10.3 Upon ACT's issuance of such request or receipt of each such
request from Concert ("Change Request"), ACT will evaluate the
impact that the Change Request will have on the resources
required by ACT to perform its requirements hereunder, the
Attachment on which such requirements are then being performed,
and the charges then payable to ACT hereunder. ACT will notify
Concert as to the results of such evaluation (the "Change
Proposal") as soon as reasonably feasible following the issuance
or receipt of the Change Request, which notice will be submitted
in writing if so requested by Concert. To the extent that the
changes set forth in the Change Request can reasonably be
performed without an increase in the resources then being
utilised therefore, there will be no adjustment to ACT's charges
hereunder. In the event the Change Proposal contemplates an
increase in ACT's charges hereunder or an additional charge
payable to ACT therefor and Concert so requests, ACT and Concert
will work together in good faith to adjust the priorities with
respect to the other requirements being performed by ACT
hereunder so as to permit such Change Request to be implemented
without an increase in ACT's charges.
10.4 Following agreement of such variation, Concert will manage
the issue of an amendment to this Agreement as necessary. Any
increases or decreases in price and other changes resulting from
such variation(s) shall be reasonable, calculated according to
the prices in the Agreement and subject to negotiation between
Concert and ACT.
10.5 In the event Concert requests ACT to provide additional
services or functions which are not covered in this Agreement,
ACT and Concert shall execute an additional addendum or addenda
referencing this Agreement to provide such additional services or
functions,
5
which shall be provided at rates expressly agreed in writing. Any
such additional addendum or addenda shall be incorporated herein
by reference and shall be subject to the terms and conditions
hereof.
11. PROTECTION OF DOCUMENTS AND SOFTWARE
11.1 ACT shall take suitable precautions to protect all
documentation and Software generated or required for this
Agreement against loss of any kind. Upon the release of each
Software update or documentation update a set of the latest
Software and documentation (relevant to the Conferencing Services
to be provided to Concert under the Agreement) shall be stored by
ACT in a safe location remote from ACT's normal work premises.
11.2 ACT shall select an escrow agent, establish an escrow
agreement and maintain an escrow account for all Software,
technologies and related applications and IP developed or
required for this Agreement which shall give Concert access to
the Intellectual Property developed or required for this
Agreement in the event of termination of this Agreement pursuant
to Section 13 ("Escrow Agreement"). Concert shall pay the fees
associated with this Escrow Agreement and shall be allowed to
approve the escrow agent selected by ACT and to review and
require changes to the Escrow Agreement with ACT prior to
acceptance of the Escrow Agreement by ACT. The Escrow Agreement
shall be put in place as soon as reasonably practicable and, in
any event, prior to the signing of this Agreement by Concert.
12. INTELLECTUAL PROPERTY LICENSE
12.1 ACT and Concert affirm that the provisions of the
Intellectual Property License set forth in Section 10 of the
Contract for the Supply of Conferencing Services Design
Development and Implementation between the Parties and executed
contemporaneously herewith are consistent with the purposes and
intentions of this Parties as set forth in this Agreement and are
incorporated herein by this reference except as follows:
12.1.1 The licenses established under Sections 10.4 and
10.6 shall continue for the term of this Agreement
and any subsequent agreement between the Parties
for conferencing services.
13. MONTHLY REPORTS AND PROGRESS MEETINGS
13.1 ACT shall provide Concert with monthly operations reports per the
terms of Attachment 2, Section 10.7. Additionally ACT will
provide any additional information as Concert may reasonably
request (including statistical information).
13.2 ACT and Concert representatives shall meet once a month in person
or by conference call. ACT shall produce before the meeting, a
written progress report outlining status and known material
problems. ACT shall produce, before the next meeting, minutes and
list of action items coming out of each meeting.
14. PERFORMANCE REMEDIES AND LIABILITIES
14.1 Performance Remedies are set forth in Attachment 6.
14.2 Where, except as proven to be a direct result of Force
Majeure as defined elsewhere in this Agreement, or of an
event for which Concert is directly or indirectly responsible, the
Conferencing Services fail to meet the requirements set forth in
Attachment 6, Concert shall be entitled to the performance remedies
per Attachment 6. However, in any event, ACT shall use its best
efforts to restore the Conferencing Services to meet the requirements
as soon as is practicable.
6
14.3 ACT must notify Concert if ACT believes it is not obtaining
necessary access to a Concert, Authorized Distributor or End-User
facility required to restore the Conferencing Services to meet
the requirements.
15. TERMINATION
15.1 Either Party may elect, without prejudice to any other
rights or remedies, to give Notice of breach and of proposed
termination of this Agreement upon 60 days' Notice to the other,
with an opportunity to cure within that Notice period, provided
the breach is potentially curable, if the other Party has failed
to perform any material obligation under this Agreement. If the
Party has not cured the breach within the 60-day period, the non-
breaching Party may then give a Notice of termination.
15.2 Both parties shall have the right at any time by written
Notice to terminate the Agreement forthwith and to recover from
the other Party all directly resulting losses and expenses if the
other Party shall become insolvent or cease to trade or compound
with its creditors; or a bankruptcy petition or order is
presented or made against the other Party; or a receiver or an
administrator receiver is appointed in respect of any of the
other Party's assets; or a petition for an administration order
is presented or such an order is made in relation to the other
Party; or a resolution or petition or order to wind up the other
Party is passed or presented or made or a liquidator is appointed
in respect of the other party (other than a members' voluntary
liquidation solely for the purpose of reconstruction or
amalgamation or the equivalent of such liquidation in the
jurisdiction of the other Party).
15.3 Concert may at any time on written Notice terminate the
Agreement forthwith without penalty or further liability to
Concert if the ownership or control of ACT is materially changed
to (in Concert's reasonable opinion) Concert's detriment.
15.4 Should a Force Majeure Event cause ACT to delay in providing
the Deliverables or any of them for a period of more than 28
consecutive days, Concert shall have the option to terminate the
Deliverables or part thereof by written Notice to ACT.
15.5 Concert may at any time on written 6-month Notice terminate
the Agreement forthwith for its convenience. Where Concert
terminates this Agreement under this Clause 15.5 and does not
have any other right to terminate the Agreement, Concert shall
pay ACT such amounts as may be necessary to cover its reasonable
costs and outstanding and unavoidable commitments necessarily and
solely incurred in properly performing the Agreement in relation
to the Conferencing Services prior to termination. The costs
payable by Concert pursuant to this Section 15.5 shall be subject
to the following limitations:
If terminated in Maximum
Contract Year Amount
-------------- ------
1 $4 Million USD
--------------------------------
2 $3 Million USD
--------------
$2 Million USD
--------------
15.6 In the event that all or part of the Conferencing Services are
terminated pursuant to Section 15 of this Agreement, ACT agrees
to co-operate with Concert for the smooth migration of the
Conferencing Services to Concert or its appointed agent. Such
migration shall include making the Conferencing Services
Platform, including the relevant equipment, circuits, Software
and any Intellectual Property Rights developed by ACT or
otherwise used in support of this Agreement, under a reasonable
license agreement (including fees, confidentiality and a
restriction to use exclusively for services to b e
7
provided to Authorized Distributors and End-Customers) to be
negotiated between the Parties.
15.7 Within 60 days of the date of a termination Notice in accord
with this Section 15, the Parties shall agree on a de-
installation plan, for a period not to exceed 6 months. If the
Parties have not reached agreement on a de-installation plan
within this 60-day period, either Party may initiate Arbitration
procedures in accord with the terms of this Agreement. Unless
otherwise agreed by the Parties, the arbitrator(s) shall hear the
matter and produce a de-installation plan within 60 days of the
Arbitration. In any event, both Parties shall use all reasonable
efforts to mitigate their costs associated with any such
termination.
15.8 The above clauses encompass the total liability of Concert
for termination pursuant to this Section 15, and Concert shall be
liable for no other costs, claims, damages, or expenses
consequent upon such termination. In any event, both Parties
shall use all reasonable efforts to mitigate their costs
associated with any such termination.
16. CONFIDENTIALITY
16.1 Subject to Clause 16.3 of this Agreement, each Party shall keep safe all of
the other Party's Information and shall not without the prior written
consent of the giving Party:
(a) use any of other Party's Information for any purpose other than is
necessary for the performance of its obligations under this Agreement
or,
(b) disclose any Information to any person other than a person directly
employed or engaged by either Party in the performance of the
Agreement. Disclosure to all persons shall be made in confidence and
only to the extent necessary for the performance of the Parties'
obligations under this Agreement.
16.2 Subject to Clause 16.3 of this Agreement, the Parties shall keep
confidential all Information supplied to each other and indicated as being
confidential and shall not disclose the same to any third party without the
prior written consent of the other, provided always that each party may
disclose or use, without consent, such Information to the extent necessary for
the exercise of the Parties' rights under this Agreement, including any
licences granted.
16.3 Neither Party to this Agreement shall be bound by the above provisions of
this Condition in relation to Information that is :
(a) published or comes into the public domain otherwise than by a breach
of this Agreement; or,
(b) lawfully known to it before the publication of the SOR and is not
subject to a previous obligation of confidentiality binding that
Party; or,
(c) lawfully obtained by it from a third party (excepting British
Telecommunications plc, MCI Communications Corporation, their
subsidiaries and affiliates) which is free to divulge that
Information; or,
(d) replicated by development independently carried out by an employee or
other person without access to, or knowledge of, such Information.
16.4 ACT shall ensure that each subcontractor engaged in relation to the
Agreement is bound by similar confidentiality terms to those set out in
this Condition.
8
16.5 All Information and any copies thereof and all Intellectual Property Rights
therein belonging to either Party shall remain as their property; and such
information shall be clearly marked as such prior to disclosure to the
other Party. Each Party shall return the other's Information to them upon
completion or termination of the Agreement, or earlier upon reasonable
request by the other Party.
16.6 ACT shall not design a conferencing system or solution based upon a
substantial copying of the design and other work performed pursuant to this
Agreement for another customer without Concert prior approval for a period
of the life of this Agreement. This restriction shall not prevent ACT from
designing a conferencing system or solution based on general know-how
gained from exposure to or development of the Conferencing Services.
However, the source of a technological enhancement or development by ACT
shall not be disclosed as having been developed for Concert.
17. CONFLICT OF INTEREST
ACT represents and warrants to the best of ACT's knowledge and belief that
it is not now under Agreement or obligation, nor will ACT enter into an
Agreement or assume an obligation during the term of this Agreement that
would materially and detrimentally affect ACT's performance of this
Agreement.
18. INTELLECTUAL PROPERTY WARRANTIES
18.1 ACT warrants and represents that nothing in the Response or the
Conferencing Services violates any other agreement, duty of nondisclosure
or is based on a patent, trade secret, confidential, copyrighted or other
intellectual property that ACT does not have the authority to reprint in
the Response or to utilise in the implementation of the Conferencing
Services. Concert warrants and represents that nothing in the RFP violates
any other agreement, duty of non-disclosure, or is based upon a patent,
trade secret, confidential, copyrighted or other intellectual property that
Concert does not have the authority to reprint in the SOR or to utilise in
the implementation of the Conferencing Services.
18.2 ACT warrants and represents that ACT knows of no patent, copyright, other
intellectual property or other legal claims or actions that would preclude
or hinder ACT from implementing the Conferencing Services.
19. GENERAL WARRANTIES
19.1 ACT warrants that the Conferencing Services shall be of the
highest professional quality in the telecommunications industry, in
accordance with the SOR and the Supplier Support Requirements
(Attachment 2), and shall not be improperly derived from any
copyrighted or patented material or trade secret or otherwise be
subject to or infringe upon any interest, proprietary or otherwise, of
any individual or entity.
19.2 ACT warrants that the Conferencing Services will not be in
violation of any applicable law, or cause Concert, any Authorized
Distributors or any End-Customer to violate any applicable law. ACT
warrants that it shall perform all work in a good and workmanlike
manner in accordance with manufacturer and industry standards and
specifications.
19.3 ACT warrants that its work will not cause the Platform, Software,
or other communications facilities to violate any law. ACT will comply
with all applicable laws including, but not limited to, building and
electrical regulations, employee and sales tax, the Communications Act
of 1934, as amended, foreign communications laws applicable to the
provision of the Conferencing Services, and equal employment laws. ACT
shall assume all liabilities and obligations imposed by such laws,
regulations and requirements with respect to ACT's performance
hereunder.
19.4 ACT warrants and represents that it shall have title free and clear
of any liens to the Conferencing Services; or the right, free and
clear of any liens to license or otherwise permit use of Conferencing
Services by Concert, its Authorized Distributors and End-Customers in
accord with this
9
CONCERT/ACT CONFIDENTIAL
Agreement. ACT further warranties the right of quiet enjoyment of the
Conferencing Services by the Authorized Distributors and End-
Customers.
19.5 ACT warrants that the Conferencing Services, including hardware,
software and network support, shall be capable of processing dates up
to December 31, 1999 and from January 1, 2000 forward without failure.
20. REMEDIES AND LIABILITIES
20.1 EXCEPT AS STATED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY, ANY SUBAGREEMENTOR, OR OTHER THIRD PARTY, WHETHER
BASED ON AGREEMENT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE),
WARRANTY OR ANY OTHER CAUSE OF ACTION FOR ANY LOSS OF INTEREST, DATA
OR INFORMATION, LOSS OF USE, LOST PROFITS OR LOST OPPORTUNITY OR LOST
REVENUE BY THE OTHER PARTY OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING FROM OR RELATED
TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF.
20.2 EXCEPT AS STATED IN THIS AGREEMENT, IN NO EVENT, WHETHER AS A RESULT
OF BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, SHALL EITHER PARTY HAVE ANY LIABILITY UNDER THIS AGREEMENT.
21 EXCLUSIONS FROM LIMITATIONS
No disclaimer of warranty or limitation of liability shall apply where
the claim or cause of action involves: injury to person or tangible
personal property; gross negligence or wilful misconduct of a Party or
any of their subcontractors, officers, directors, or other agents;
obligations related to indemnification; or breach of confidentiality
obligations.
22. INTELLECTUAL PROPERTY - INDEMNITY
22.1 Each Party shall indemnify and shall keep fully indemnified the other
Party against all actions, claims, proceedings, damages, costs and
expenses arising from any infringement or alleged infringement of any
Intellectual Property Right or any trade ▇▇▇▇ or service ▇▇▇▇, whether
registered or not, or any breach or alleged breach of any obligation
of non-disclosure by the possession, use , manufacture, sale, lease,
hire, distribution or disposal in respect of the Deliverables or other
work provided by the indemnifying Party under or the packaging thereof
by any person anywhere in the world.
22.2 Concert and ACT shall notify each other immediately in writing of any
infringement or alleged infringement referred to above of which they
become aware.
22.3 In the event of an infringement or alleged infringement involving
Project IP, Act IP or Improved IP, ACT shall at its own expense and at
the option of Concert:
a) secure a royalty free licence allowing Concert unrestricted use
of the infringing Deliverable or work and the ability to exercise
its other rights granted under the Agreement in respect of the
Deliverable or work; or
b) modify or replace the Deliverable or work, at the option of
Concert, so as to meet the existing functional specification and
avoid the claim of infringement and any injunction or court
order.
22.4 Unless otherwise agreed in writing, ACT shall conduct all negotiations
and litigation in relation to any such infringement or alleged
infringement and be responsible for all costs and expenses incurred.
Concert shall afford all reasonable assistance in contesting such
allegations but if ACT fails to conduct such
10
negotiations or litigation, or in the opinion of Concert fails to do
so in a manner which is in the best interests of Concert or fails to
do so within a reasonable time, Concert may assume conduct of the same
at ACT's expense.
23. INDEMNITY - GENERAL
23.1 Except as specifically provided for elsewhere in this Agreement and
without prejudice to any other rights or remedies available to a
Party, each Party shall indemnify and hold harmless the other Party
against any and all claims for loss or damage arising out of or
related to the performance or non-performance by the indemnifying
Party, its employees, agents, contractors, or other representatives,
of the indemnifying Party's obligations hereunder.
23.2 ACT warrants that it has obtained all necessary licences, authorities'
consents and permits for the provision of the Conferencing Services
and for the unrestricted delivery of the Conferencing Services to
Concert, and export to such countries as Concert shall have notified
ACT at any time before delivery to Concert. In response to such
notification, ACT shall identify in writing to Concert those countries
for which the Conferencing Services are not available. ACT shall
identify and comply with the provisions of all applicable national and
international laws, ordinances, regulations and codes covering the
provision of required permits, certificates, approvals and
inspections. ACT shall indemnify Concert against all costs,
proceedings, losses, damages, claims, or demands resulting directly or
indirectly from any breach of the above warranty.
24. INDEMNIFICATION PROCEDURES
Any right to indemnification is conditioned on (1) prompt Notice of
the claim (in a time frame that does not prejudice the defense of the
claim); (2) reasonable assistance by the Indemnified Party and (3) the
indemnifying Party retaining sole authority to defend or settle the
claim, providing that the Indemnified Party's cooperation is without
waiver of that Party's attorney-client, work product, or other legal
privilege. The indemnification rights in this Agreement are the
exclusive indemnification rights and supersede any rights otherwise
available to a Party.
25. FORCE MAJEURE
25.1 Neither Party shall be liable to the other party for any period of
delay in the performance of the Agreement directly caused by any event
beyond its reasonable control("Force Majeure "), including acts of
nature, war, civil disorder, prohibitions or orders issued by public
authorities; restrictions imposed by legislation; strikes, or
lockouts, fire, lightning, inclement weather, explosions or epidemics,
provided such Party shall have first given the other Party written
notice as soon as practicable after becoming aware that such delay was
likely to occur.
25.2 If due to Force Majeure ACT is the delaying party and the Force
Majeure period exceeds 28 days, Concert shall have the option by
written notice to ACT to terminate the Agreement forthwith in whole or
in part and be under no further liability to ACT other than in
accordance with Section 15.
25.3 For the avoidance of doubt, the provisions of this Condition shall not
affect Concert's right to terminate the Agreement under Section 15
("Termination").
26. GOVERNING LAW AND JURISDICTION
The laws of New York shall govern this Agreement.
27. ARBITRATION
11
Unless the Parties agree upon another arbitration forum, any claim,
dispute, controversy or other matter in question arising out of or relating
to this Agreement or the breach thereof, shall be settled by final, binding
arbitration to be held in New York, New York, in accordance with the then
effective Commercial Arbitration Rules of the American Arbitration
Association, or their successor. Judgement upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The
decision of the arbitrator shall be final and binding on the Parties. Each
Party shall bear its own costs in respect of any arbitration proceeding.
28. GENERAL PROVISIONS
28.1 Conflicts. In the event the Response, in reference to the SOR, has
----------
explicitly proposed a substitute requirement, a different means or method
to meet the SOR requirement, or has otherwise taken an exception to meeting
a requirement, the terms of the Response prevail to the extent of that
substitution, different means or method, or exception. In the event of a
conflict between this Agreement and the Response, the terms of this
Agreement shall prevail. In the event of a conflict between this Agreement
and any Attachments hereto, this Agreement shall prevail.
28.2 Insurance. ACT shall maintain, at all times during the term of this
---------
Agreement, insurance coverage suitable for the Conferencing Services and
other work being provided hereunder and in compliance with the requirements
of the jurisdiction(s) where the work is performed, including, but not
limited, to End-Customer or Authorized Distributor sites, if applicable.
28.3 Security. ACT shall comply with all Concert's security procedures for the
--------
Conferencing Services, all Intellectual Property, Information and other
work produced under this Agreement. In addition, where ACT attends a site
other than its own, ACT shall comply with all reasonable security
procedures as advised by Concert or the site owner, as appropriate.
28.4 Assignment. Neither ACT nor Concert shall, without the prior written
----------
consent of the other (such consent not to be unreasonably withheld) assign
the whole or any part of the Agreement, provided however, that Concert may,
upon notice to ACT, assign all or part of this Agreement to any affiliated
subsidiary, or parent company, or to its successor, whether by merger,
reorganization, or sale of all, or substantially of the assets to which
this Agreement relates. Any assignment pursuant to this clause shall
include an assignment of all the rights and obligations of the assigning
Party pursuant to this Agreement.
28.5 Subcontracting. ACT shall not, without the prior written consent of
--------------
Concert (such consent not to be unreasonably withheld) subcontract the
provision of the Conferencing Services. Such permission, shall not relieve
ACT of any obligation or liability under the Agreement.
28.6 Publicity. Neither Party shall name the other in any publicity relating
---------
to the Agreement without the other's prior written approval (such approval
not to be unreasonably withheld). The provisions of this Section 28.6 shall
survive the expiry or termination of the Agreement for a period of six
months.
28.7 Notices/Points of Contact. The term Notice means written communications
-------------------------
directed to the persons below in the manner directed in this Section. Such
communications shall be deemed to have been duly given upon actual receipt
by the Parties, or upon constructive receipt if sent by certified mail,
return receipt requested, or any other delivery service which actually
obtains a signed delivery receipt, addressed to the person named below to
the following addresses or to such other address as any party hereto shall
hereafter specify by written notice to the other Party.
If to ACT: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Concert: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Concert
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
In addition to the above communications, notices of material dispute or
default shall also be delivered, with the same delivery requirements as
stated above, to the following addresses:
For ACT:
For Concert: Concert
Office of General Counsel
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
28.8 Waiver. No delay, neglect or forbearance on the part of Concert in
------
enforcing against ACT any provision of the Agreement shall be deemed to
be a waiver or in any way prejudice any rights of Concert under the
Agreement. No waiver by Concert shall be effective unless in writing nor
shall any waiver by Concert of a breach of the Agreement by ACT
constitute a waiver of any subsequent breach.
28.9 Enforceability. The validity or enforceability for any reason of any
--------------
provision of this Agreement shall not prejudice or affect the validity
or enforceability of any other provision.
28.10 Headings. The headings in this Agreement are for convenience only and
---------
shall not affect its interpretation.
29. ENTIRE AGREEMENT
This Agreement and its attachments:
Attachment 1 - Technical Requirements (SOR)
Attachment 2 - Supplier Support Requirements
Attachment 3 - ACT Response (Response)
Attachment 4 - Prices and Leadtimes
Attachment 5 - Payment and Invoicing
Attachment 6 - Performance Remedies
constitute the entire agreement between Concert and ACT in respect of
the subject matter hereof and supercedes all prior negotiations,
representations, or agreements in relation to such subject matter. This
Agreement may not be modified or amended except in writing, executed by
the duly authorized representatives, from time to time, of the Parties.
WITNESS the signatures of the duly authorized representatives of the Parties.
13
ACT TELECONFERENCING SERVICES, INC. CONCERT GLOBAL NETWORKS LIMITED
___________________________________ ________________________________
Signature Signature
▇▇▇▇ ▇▇▇▇▇▇, Managing Director ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary
----------------------------------- --------------------------
Printed Name & Title Printed Name & Title
July 2, 1998 July 10, 1998
----------------------------------- -------------
Date Date
14