EXHIBIT 10.4
CONFIDENTIAL TREATMENT
Portions of this Exhibit (Exhibit 10.4) have been omitted pursuant to a request
for confidential treatment filed with the Securities and Exchange Commission
(the "Commission"). The omitted portions, which are designated by asterisks
(* * *), were filed separately with the Commission.
Agreement No. R-11268M
Effective Date: November 01, 1998
Agreement No. R11268M
between
BELLSOUTH TELECOMMUNICATIONS, INC.
and
INNOTRAC CORPORATION
BELLSOUTH TELECOMMUNICATIONS, INC., a(n) Georgia corporation ("Company"), and
INNOTRAC CORPORATION, a(n) GA corporation ("Supplier"), enter into this
Agreement No. R-11268M ("Agreement") effective November 01, 1998.
The parties hereby agree that all the terms and conditions attached hereto are
fully incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have, manually or by electronic signature,
executed this Agreement by their duly authorized representatives in one or more
counterparts, each of which shall constitute an original, on the effective date
specified above.
INNOTRAC CORPORATION BELLSOUTH
TELECOMMUNICATIONS, INC.
By: /s/S ▇▇▇▇▇▇▇ By: * * *
------------------------------- ------------------------------
(Authorized Signature) (Authorized Signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: * * *
----------------------------- ----------------------------
(Print or Type) (Print or Type)
Title: President Title: * * *
---------------------------- ---------------------------
Purchase Agreement For Services
BellSouth Telecommunications, Inc.
This Purchase Agreement for Services (hereafter "Agreement") is made by and
between BellSouth Telecommunications, Inc., a Georgia corporation, (hereafter
"Company") located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
Innotrac Corporation, a Georgia corporation, (hereafter "Supplier") located at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and shall supersede and replace the
"Equipment Negotiation and Referral" agreement dated May 1, 1995.
1. TERM OF AGREEMENT
The initial term of this Agreement shall commence and be effective on
October 1, 1998. It shall continue in effect thereafter through September
30, 2003 , inclusive, except as otherwise provided herein. This Agreement
shall continue in effect as specified herein unless: Company terminates,
with or without cause, at any time upon at least One hundred and twenty
(120) days prior written notice to Supplier, as provided herein; or either
party cancels pursuant to the terms hereof, upon the other's breach.
2. SCOPE OF AGREEMENT
This Agreement contemplates Supplier's procurement, sale or rental, and the
fulfillment of sales or rentals of telecommunications related customer
premises equipment (CPE) and other Services, as defined herein or in
subsequent Letter Purchase Orders (LPO's), as ordered by Company and
Company's customers. All transactions between Company and Supplier during
the term of this Agreement shall be covered by this Agreement and any
applicable Letter Purchase Order, as defined herein, unless the parties
agree otherwise in writing.
3. TERMS AND CONDITIONS
The terms and conditions applicable to this Agreement shall be those stated
within this Agreement and shall include those terms and conditions
contained in Appendices A, B, C, D, and E.
4. SERVICES AND PRICE
"Services" as used herein shall mean the Sales and Fulfillment Services
listed in Appendix B, which may be ordered hereunder. Prices for Services
and/or equipment ordered, including any applicable discount schedules,
shall be as shown in Appendix C and/or in subsequent LPO's.
5. MATERIAL
"Material" as used herein shall mean telecommunications related customer
premise equipment (CPE).
6. TERMS OF PAYMENT
Terms of Payment shall be as described in Appendix C.
Company may withhold payment for non-conforming and/or non-complying
Services or Material.
7. NOTICES
Except as otherwise provided herein, any notices or demands that are
required by law or under the terms of this Agreement shall be given or made
by Supplier or Company in writing and shall be given by hand delivery,
facsimile, telegram or similar communication, or by certified or registered
mail, and addressed to the respective parties set forth in Appendix A,
Paragraph 27 NOTICES. In the case of facsimile, telegram or similar
communication, the receiving party shall consider such notices given when
sent, and in the case of certified or registered mail, when deposited in
the United States mail with postage prepaid.
8. INCORPORATION BY REFERENCE
The terms and conditions contained in Appendices A through E, referred to
in this Agreement and attached hereto, are integral parts of this Agreement
and are fully incorporated herein by this reference.
TERMS AND CONDITIONS
APPENDIX A
1. AFFILIATED COMPANIES
BellSouth Corporation or any company which BellSouth Corporation owns,
directly or indirectly, in whole or in part, shall constitute an affiliated
company ("Affiliated Company(ies)"). Any Affiliated Company may place
Orders under this Agreement. All references to "Company" in this Agreement
apply to the Affiliated Company placing an Order. The terms and conditions
of this Agreement apply to such Orders. The Affiliated Company placing the
Order becomes "Company" for any Order it places. Each Order constitutes a
separate, distinct and independent contract between Supplier and the
Company placing the Order. Each Company bears sole responsibility and
liability for meeting the obligations of any Order such Company may place.
2. ASSIGNMENT BY COMPANY
Company may assign this Agreement and its rights and may delegate its
duties under this Agreement either in whole or in part, at any time and
without Supplier's consent, to any present or future Affiliated Company or
successor company of Company; provided, however, Company must assure that
its assignee has the ability to perform Company's responsibilities under
this Agreement. Company shall give Supplier written notice of such
assignment or delegation. The assignment shall not affect nor diminish any
rights or duties that Supplier or Company may then or thereafter have as to
Services, material, or software ordered by Company before the effective
date of the assignment. Written notice to the Supplier releases and
discharges Company, to the extent of the assignment, from all further
duties under this Agreement, except with respect to Services, material, or
software that Company ordered before the effective date of the assignment.
3. ASSIGNMENT BY SUPPLIER
Supplier must have Company's written consent before Supplier assigns or
otherwise delegates any work it is to perform under this Agreement, in
whole or in part, or assigns any of its rights, interests or obligations
hereunder. Supplier shall deliver to Company written notice of Supplier's
intent to assign, at least thirty (30) days before assignment. Company
shall consider void any assignment to which it has not consented, except
where Supplier assigns its rights to receive monies pursuant to this
Agreement. In such case, Supplier only needs to notify Company in writing.
However, Supplier cannot assign monies due if Supplier tries to transfer to
the assignee any of Supplier's other rights or obligations hereunder.
Supplier shall not make an assignment that prevents Company from dealing
solely and directly with
Supplier on all matters pertaining to this Agreement. Such matters include
amending this Agreement and/or settling amounts due either party by the
other hereunder.
4. BANKRUPTCY
In addition to all other rights or remedies provided for in this Agreement
or by law, Company may immediately cancel this Agreement if:
a) Supplier becomes insolvent or makes a general assignment for the
benefit of creditors;
b) Supplier admits in writing the inability to pay debts as they mature;
c) Any court appoints a trustee or receiver with respect to Supplier or
any substantial part of Supplier's assets; or
d) An action is taken by or against Supplier under any bankruptcy or
insolvency laws or laws relating to the relief of debtors, including
the Federal Bankruptcy Act.
5. COMPANY'S INFORMATION
Scope of Company's Information
Supplier acknowledges that Supplier may acquire information and material
that is the Company's confidential, proprietary or trade secret
information. As used herein, "Company's Information" includes, but is not
limited to, all information and documents disclosed by the Company, whether
written or oral, in the course of this Agreement or in contemplation hereof
including, without limitation, all Specifications, drawings, sketches,
schematics, models, samples, tools, algorithms, technical or business
information, research and development, production and engineering
processes, costs, profit and margin information, Company lists, marketing,
production and future business plans.
Use of Company's Information
Supplier agrees to take all steps reasonably necessary to hold in trust and
confidence the Company's Information. Supplier hereby agrees to hold
Company's Information in strict confidence, not to disclose it to third
parties or to use it, in any way, commercially or otherwise, other than as
permitted under this Agreement. Supplier will limit the disclosure of the
Company's Information to employees with a need to know who: (i) have been
advised of the proprietary nature thereof; and (ii) have acknowledged the
express obligation to maintain such confidentiality. Supplier's
obligations set forth herein shall remain in effect for two (2) years from
the receipt of Company's Information considered or deemed to be
confidential information, but such obligation of confidentiality will not
expire for Company's Information considered or deemed to be a trade secret
under applicable law.
Exceptions
Notwithstanding the other provisions of this Agreement, nothing received by
Supplier from Company will be considered to be Company's Information if:
(i) it has been
published or is otherwise available to the public other than by a breach of
this Agreement; (ii) it has been rightfully and lawfully received by
Supplier from a third party without confidential limitations; (iii) it has
been independently developed by Supplier by personnel having no access to
Company's Information; (iv) it was known by Supplier prior to its first
receipt from Company; (v) it is hereafter disclosed by Company without
restriction on further disclosure; or (vi) it is disclosed pursuant to a
court order, subpoena or by operation of law, provided Supplier has given
Company prior advance written notice in order that Company may attempt to
obtain a protective order limiting disclosure and use of the information
disclosed.
Supplier hereby agrees that every individual person including but not
limited to employees, sub-contractors, agents, representatives and other
third parties who perform under this Agreement shall execute the
appropriate documents to undertake obligations of confidentiality
consistent with the terms set forth herein. Supplier hereby agrees to
provide evidence of such duly executed documents to Company upon request.
6. CHOICE OF LAW/VENUE
The laws of the State of Georgia shall govern the validity, construction,
interpretation, and performance of this Agreement. The jurisdictional
venue for any legal proceedings involving this Agreement shall be held in
any applicable local, state or federal court located within the State of
Georgia.
7. COMPLIANCE WITH LAWS
Supplier shall comply with all applicable federal, state, county and local
laws, orders, rules, ordinances, regulations and codes, applicable to
Suppliers provision of Services hereunder, including, but not limited to,
Supplier's obligations as an employer regarding the health, safety and
payment of its employees. Supplier's compliance shall also include
identifying and procuring the required permits, certificates, approvals,
and inspections in Supplier's performance under this Agreement.
Notwithstanding whether a specification is furnished under this Agreement,
Supplier shall comply with all FCC rules pertaining to Customer Proprietary
Network Information ("CPNI") as well as all applicable laws regarding the
construction, packaging, labeling, and registration of Services, material,
software or containers. Supplier shall indemnify, defend and hold Company
harmless against any claim, loss, liability, cost or damage sustained
because of Supplier's noncompliance. Notwithstanding any of the foregoing,
Supplier shall not be required to obtain registrations, permits, approvals,
inspections or otherwise comply with laws, orders, rules, ordinances,
regulations and/or codes applicable to processes handled by persons or
entities other than Supplier.
8. CONFLICT OF INTEREST
Supplier acknowledges it has received Company's "Position Statement," as
contained in the attached applicable appendix. Supplier further stipulates
that it has not employed, retained, induced, or directed any of Company's
officers or employees to solicit or secure this Agreement by means of an
agreement, offer, understanding, or implication involving any form of
remuneration. Supplier agrees that if Company alleges that a violation
exists hereof, Supplier will cooperate in every reasonable manner with
Company in establishing whether the allegation is true. If such a
violation has occurred and Company considers it material, Company may
cancel this Agreement.
9. DEFAULT
If Supplier breaches or defaults on any of the terms, conditions, or
covenants of this Agreement or any Order(s), Company shall give Supplier
written notice of such breach or default ("Breach Notice"). If , by the
10th working day following receipt of a Breach Notice, Supplier does not
demonstrate, to Company's reasonable satisfaction, that Supplier has
implemented efforts to cure such breach or default, then in addition to all
other rights and remedies of law or equity or otherwise, Company may cancel
this Agreement or any such Order(s) without any charge, obligation, or
liability whatsoever, except for payment of Services, material and/or
software already ordered and being processed; provided, however, if
Supplier has implemented efforts to cure such breach or default within the
said 10 working days and such breach or default cannot be completely cured
within said period, then the cure period may be extended, at the Company's
discretion, day-to-day for a period of up to thirty (30) additional
calendar days.
10. ENVIRONMENTAL COMPLIANCE
Supplier hereby warrants and certifies that Supplier's performance under
this Agreement, the Services rendered and/or material supplied by Supplier,
its agents, or Sub-contractors hereunder shall conform and comply with all
applicable laws regarding the packaging, handling, use, storage,
processing, transportation, treatment and/or disposal of material or other
items which are, or contain, hazardous or toxic wastes, substances or
materials (collectively called "Hazardous Material"). Supplier shall
advise Company how to use and dispose of Hazardous Material bought under
this Agreement.
Supplier shall obtain all required licenses, permits, and authorizations
from all applicable government agencies that have, or may assert,
jurisdiction over any aspects of Supplier's performance hereunder,
including the performance of its employees, agents, or sub-contractors.
Supplier shall notify Company at least thirty (30) days before shipping
Hazardous Material. Supplier shall ▇▇▇▇ each self-contained unit and
carrier identifying the existence of a Hazardous Material or substance and
its name. Notwithstanding the section entitled "TERMINATION FOR
---------------
CONVENIENCE", if applicable, Company may terminate an Order for Hazardous
-----------
Material within thirty (30) days after such notification from Supplier
without any liability to Company whatsoever.
Supplier must include a Material Safety Data Sheet ("MSDS"), Occupational
Safety and Health Act ("OSHA") Form 174 as revised, with all shipments that
contain Hazardous Material as specified in Department of Transportation
Title 49 and OSHA Standards.
Supplier shall indemnify, defend and hold Company harmless from any
violation or breach of the terms of this section. Such indemnity
obligation shall survive the termination of this Agreement.
The provisions of this section shall apply only to the extent that
manufacturing, packaging, handling, use, storage, processing,
transportation, treatment, disposal and/or other such activities are
processes generated or handled by Supplier. Nothing in this section shall
require Supplier to conform or comply with laws, or to obtain licenses,
permits or other approvals, with respect to manufacturing, packaging,
handling, use, storage processing, transportation, treatment, disposal
and/or other such processes and activities not generated or handled by
Supplier.
11. FACILITY RULES AND GOVERNMENT CLEARANCE
Both parties' employees and representatives shall comply with all internal
rules and regulations while on each other's premises. If required by
Government regulations, such compliance shall include submission of a
satisfactory clearance from the U. S. Department of Defense and other
concerned federal authorities.
12. FORCE MAJEURE
Neither party shall be responsible for any delay or failure in performing
any part of this Agreement when it is caused by fire, flood, explosion,
war, strike, embargo, government requirement, civil or military authority,
act of God, act or omission of carriers or other similar causes beyond its
control (collectively called "Condition"). If any such Condition occurs,
the party delayed or unable to perform shall give immediate notice to the
other party. The party affected by the other's delay or inability to
perform may elect to:
a) Terminate this Agreement or part thereof as to Services, material
and/or software not already received; or
b) Suspend this Agreement for the duration of the Condition, buy or sell
elsewhere Services, material and/or software comparable to those to be
obtained under this
Agreement, and deduct from any Supplier commitment the quantity bought
or committed to with other suppliers; or
c) Resume performance of this Agreement once the Condition ceases, with an
option in the affected party to extend the period of this Agreement up
to the length of time the Condition endured; or
d) If the affected party does not notify the other in writing within
thirty (30) days after the affected party receives notice of the
Condition from the party unable to perform, then Option 2. shall apply.
13. INDEMNITY
Supplier agrees to indemnify and hold Company harmless from any and all
liabilities, causes of action, lawsuits, penalties, claims or demands
(including the costs, expenses and reasonable attorneys' fees on account
thereof) that may be made by:
a) Anyone for injuries of any kind, including but not limited to personal
injury, death, property damage and theft, resulting from Supplier's
negligent or willful acts or omissions or those of persons furnished by
Supplier, its agents or sub-contractors or resulting from the use of
Supplier's Services, material, or software furnished hereunder or
resulting from Supplier's failure to perform its obligations hereunder;
b) Any of either Supplier's, its agent's or sub-contractor's employees or
former employees for which the Supplier's, its agents' or sub-
contractors' liability to such employee or former employee would
otherwise be subject to payments under the state Worker's Compensation
laws or an Employer's Liability policy, premises liability principles
or any other law or form of legal duty or obligation; and
c) Either Supplier's, its agent's or sub-contractor's employees or former
employees, including applicants at Company's job site, for any and all
claims arising out of the employment relationship with respect to
performing under this Agreement. This includes, but is not limited to,
employment discrimination charges and actions arising under Title VII
of The Civil Rights Act of 1964, as amended; The Equal Pay Act; The Age
Discrimination in Employment Act, as amended; The Rehabilitation Act;
The Americans with Disabilities Act; The Fair Labor Standards Act; The
National Labor Relations Act; and any other applicable law.
Supplier, at its own expense, shall defend Company, at Company's request,
against any such liability, cause of action, penalty, claim, demand,
administrative proceeding or lawsuit, including any in which Company is
named as an "employer" or "joint employer" with Supplier. Company shall
notify Supplier promptly of any written claims or demands against Company
for which Supplier is responsible hereunder.
The foregoing indemnity shall be in addition to any other indemnity
obligations of Supplier set forth in this Agreement.
14. INDEPENDENT CONTRACTOR
Supplier shall perform all work in connection with the Services, material
or software described in the Agreement as an independent contractor and not
as the agent or employee of Company. All persons furnished by Supplier
shall be for all purposes solely the Supplier's employees or agents and
shall not be deemed to be employees of Company for any purpose whatsoever.
Supplier shall furnish, employ, and have exclusive control of all persons
to be engaged in performing Services under this Agreement and shall
prescribe and control the means and methods of performing such Services by
providing adequate and proper supervision. Supplier shall be solely
responsible for compliance with all rules, laws, and regulations relating
to employment of labor, hours of labor, working conditions, payment of
wages, and payment of taxes, such as employment, social security, and other
payroll taxes, including applicable contributions from such person when
required by law. Supplier shall not subcontract work to be performed
without Company's prior written permission.
15. INSPECTION
At its option, Company may inspect Services. If Company so chooses, then
Company, Company's authorized agents and/or representatives shall inspect
the Services (including material and software) according to Company's
quality assurance specifications. This reference hereby incorporates those
specifications into this Agreement. Company's inspection or failure to
inspect on any occasion shall not affect Company's rights or Supplier's
obligations under warranty or other provisions of this Agreement.
Company's inspection shall not constitute acceptance of Services.
Company or Company's authorized agents or representatives may perform on-
site audits of Supplier's or Supplier's authorized agents' or
representatives' quality systems. These audits will follow the appropriate
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇-▇▇▇▇▇▇, "Quality System Generic
Requirements For Hardware" or TR-TSY-000179, "Software Quality Program
Generic Requirements." Company, at its option, may determine, arrange and
conduct other ways to ensure quality compliance.
16. INSURANCE
During the term of this Agreement, Supplier shall maintain all insurance
and/or bonds required by law or this Agreement, including but not limited
to the following:
a) Adequate Worker's Compensation and related insurance required by
Company and prescribed by the law of any state in which the work is to
be performed;
b) Employer's liability insurance with limits of at least $1,000,000 for
each occurrence; and
c) Commercial general liability insurance, including contractual
liability, products liability and completed operations coverage, and if
applicable, comprehensive
motor vehicle liability insurance. Each shall have limits of at least
$1,000,000 for bodily injury, including death, to any one person,
$1,000,000 as a result of any one occurrence, and $1,000,000 for each
occurrence of property damage.
Supplier shall also require its agents or sub-contractors, if any, who may
enter upon Company's premises to maintain the same insurance coverage
required herein. All required insurance policies shall contain a provision
stating Company's name and address and shall require insurer to notify
Company in writing at least thirty (30) days prior to cancellation of, or
any material change in, the policy. All commercial general liability
policies required herein shall name the Company as an additional insured
with respect to work performed under this Agreement. Before starting work
and upon renewing each coverage required herein, Supplier shall furnish
Company with all certificates and/or adequate proof of the foregoing
insurance.
In addition, Supplier shall maintain all policies required herein with
insurers acceptable to the Company. Company may disallow coverage from any
insurer that does not maintain a rating from A.M. Best Company of B+ X or
higher.
17. LETTER PURCHASE ORDERS
This Agreement contemplates the future execution by Company and Supplier of
one or more written Letter Purchase Order(s) ("LPO[s]"). Both parties
shall execute each LPO. This Agreement and any applicable LPO(s) shall
cover all transactions between Company and Supplier during the term of this
Agreement unless the parties agree otherwise in writing.
Upon its execution, the parties shall deem each properly executed LPO to be
incorporated into this Agreement. If the LPO conflicts with the terms and
conditions of this Agreement, the terms and conditions of this Agreement
shall control unless the parties otherwise agree via a "Special
Considerations" section of the LPO.
Supplier will furnish consultant, professional or other Services to Company
as specified in LPOs. Each LPO, at a minimum, shall specify the
information outlined below:
a) A reference to this Agreement and a unique identifying number assigned
by Company's Contact;
b) A detailed description of the Services Supplier shall perform;
c) A statement defining all deliverables and their associated due dates;
d) Company and Supplier's contact names, addresses and telephone numbers;
e) A list of expenses authorized for reimbursement by Company, and an
explanation for each item;
f) The maximum total expenditure authorized, meaning either (a) the total
dollar amount authorized under the LPO, or (b) the total time limit
for completing the project under the LPO;
g) A statement defining the beginning and ending dates for the work to be
performed;
h) Invoicing instructions;
i) Signatures of representatives authorized by Company and Supplier to
execute the LPO; and
j) Special Considerations, if appropriate.
Company, without prejudice to any right or remedy on account of any failure
of Supplier to perform its obligations under this Agreement, may at any
time terminate the performance of the work under any LPO, in whole or in
part, by written notice to Supplier specifying the extent to which the
performance of the work is terminated and the date upon which such
termination becomes effective. If Company terminates an LPO for other than
the Supplier's failure to perform its obligations under the LPO, Company
shall then pay Supplier for Services rendered prior to the effective date
of termination and for expenses properly reimbursable under the LPO,
provided, however, that the payment of any such amounts shall be subject to
any provision for the limit of expenditures set forth in the LPO.
Company's payment of such amounts shall be in full settlement of any and
all claims of Supplier of every description, including profit.
If Company terminates an LPO issued hereunder, affected Company property
and work in Supplier's possession shall be forwarded promptly to Company.
18. LICENSES
Except as otherwise provided in this Agreement, Company grants no licenses
to Supplier under any patents, copyrights, trademarks, trade secrets or any
other intellectual property, expressed or implied.
19. NONDISCRIMINATION COMPLIANCE
Supplier agrees to comply with the applicable provisions of the
"NONDISCRIMINATION COMPLIANCE AGREEMENT" set forth in the attached
Appendix D.
20. NON-EXCLUSIVE RIGHTS
This Agreement does not grant Supplier an exclusive privilege to sell to
Company any or all Services or Material that Company may require,
specifically including fulfillment services. Company, at its option, may
purchase comparable products and services from other manufacturers or
suppliers. In addition, Company, at its sole discretion, shall determine
the extent of Company's efforts to market, advertise, promote, or support
the Services or Material.
21. NON-WAIVER
No waiver or failure to exercise any option, right or privilege under the
terms of this Agreement on any occasion or occasions shall be construed to
be a waiver of the same or any other option, right, or privilege on any
other occasion.
22. PATENT AND OTHER PROPRIETARY RIGHTS INFRINGEMENT
Supplier shall indemnify, defend and hold Company harmless, at Supplier's
expense, against any claim, suit or proceeding brought against Company
resulting from, relating to or arising out of a claim that any use of the
Services, material and/or software constitutes an infringement of a patent,
copyright, trademark, trade secret or other proprietary right of a third
party. Supplier will also pay any costs including, without limitation,
reasonable attorneys' fees, expenses or damages awarded to third parties or
incurred by Company. Supplier may settle, at Supplier's sole expense, any
claim, suit or other action against Company for which Supplier is
responsible under this section provided that such settlement shall not
limit, unduly interfere or otherwise adversely affect the rights granted to
Company or Supplier's obligations under this Agreement. Company shall
notify Supplier of any claim of infringement for which Supplier is
responsible and shall provide Supplier with reasonable assistance in the
defense of any such claim. Company reserves the right to employ counsel at
its own expense and participate in the defense of any claim.
Upon notice of an alleged infringement or if in Supplier's opinion such a
claim is likely, or if Company's rights hereunder are restricted by a valid
court order, then Supplier shall at its option and sole expense: (i)
procure the right to continue using the alleged infringing material; (ii)
replace the material with non-infringing material which is equivalent in
features, functionality and quality; or (iii) modify the material to make
it non-infringing while retaining all features, functionality and quality.
23. PUBLICITY
Supplier agrees to submit to Company all advertisements, sales promotions,
press releases, and other publicity matters relating to this Agreement or
mentioning or implying the trade names, logos, trademarks or service marks
(collectively called "Marks") of BellSouth Corporation and/or any of its
Affiliated Companies or language from which the connection of said Marks
therewith may be inferred or implied, or mentioning or implying the names
of any personnel of BellSouth Corporation and/or any of its Affiliated
Companies. Supplier further agrees not to publish or use such
advertisements, sales promotions, press releases, or publicity matters
without Company's prior written consent. Notwithstanding the foregoing,
Company hereby consents to Supplier's appropriate use of the Marks in
connection with legally required reporting disclosures.
24. RECORDS AND AUDITS
Supplier shall maintain complete and accurate records of all amounts
billable to and payments Company makes under this Agreement following
generally accepted commercial accounting practices. Whenever applicable,
Supplier shall also maintain records, including but not limited to, the
following:
a) Costs Company pays for Services, material and/or software provided
hereunder;
b) Direct labor employee hours for which Supplier computes payment under
this Agreement on the basis of actual hours worked at a fixed rate per
hour;
c) Costs incurred which may affect re-determination or revision of prices
or ultimate termination costs;
d) Costs incurred which may affect the termination charges Company is
expected to pay;
e) Costs Supplier incurs for any required tooling which may affect re-
determination of price; and
f) Records concerning any physical inventories.
Supplier shall keep such records for at least three (3) years after
Company's final payment for Services, material and/or software covered by
this Agreement. Supplier shall provide to Company reasonable supporting
documentation concerning any disputed invoice amount within thirty (30)
days after Company notifies Supplier of the dispute in writing.
Company and its authorized agents and representatives may audit such
records during the respective periods in which Supplier is required to
maintain such records. Company may access such records on Supplier's
premises, inspect and photocopy same, and retain copies of such records
away from Supplier's premises with appropriate safeguards as Company in its
sole discretion may deem necessary. Company shall also have such above-
described auditing rights with respect to Supplier's agents, Suppliers, or
sub-contractors.
Supplier shall keep and make such records readily available for such audit
to determine the correctness of Supplier's billing. All payments, if any,
Company makes shall be subject to final adjustments as determined by such
audit(s). Audit(s) to determine costs and the payment of such costs shall
occur no later than three (3) years after Company presents such claim.
Supplier shall adjust its billing according to the audit results.
25. RELEASES VOID
Neither party shall require waivers or releases of any personal rights from
representatives of the other when visiting Supplier's and Company's
respective premises. Neither party shall require any representative of the
other party to sign a
personal nondisclosure agreement. Supplier, Company, or any third party
shall not plead any such releases or waivers in any action or proceeding.
26. REPRESENTATIVES
All Services that Supplier performs and material and/or software that
Supplier furnishes under this Agreement are subject to contract
administration activities by Company's Representative(s). Such activities
include, but are not limited to, monitoring supplier performance, Agreement
interpretation and amendment, maintenance of Agreement information in
Company's database, inspecting and accepting work performed, verifying work
completion, and validating charges rendered on Supplier's invoices. In
addition to or instead of Company's Representative, contract administration
activities may be performed by the individual(s) designated as Company's
Delegate, or others as may be delegated by Company in writing.
Company's Representative shall be the Director - Consumer Services.
Company's Delegate shall be the Manager - Consumer Services.
27. NOTICES
All notices from either party to the other shall be delivered either
personally or by first-class, pre-paid U.S. mail or overnight mail. Notice
to either party shall be sent to the respective address as set forth in the
Agreement, unless written notice of a change of address shall have been
previously given by either party. In addition, a copy of any changes in
address for notices and any notices of termination or any claimed default
by BellSouth shall be contemporaneously given to counsel for BellSouth at
the following address:
BellSouth Telecommunications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇. ▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: * * *
BellSouth Telecommunications, Inc.
32A - BellSouth Center
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. * * *
Innotrac Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ - President
28. SECTION HEADINGS
The section headings used in this Agreement are for convenience only and do
not affect the meaning or interpretation of this Agreement.
29. SUPPLIER'S INFORMATION
Scope of Supplier's Information
Company acknowledges that Supplier may need to provide Company with certain
information and material that is the Supplier's confidential, proprietary
or trade secret information. As used herein, "Supplier's Information" may
include information and documents disclosed by the Supplier in the course
of this Agreement such as by way of example, drawings, sketches,
schematics, models, samples, tools, algorithms, technical or business
information. Supplier shall provide a detailed description of Supplier's
Information in the applicable LPO. All Supplier's Information shall be in
writing or other tangible form and clearly marked with a confidential,
private or proprietary legend. Supplier's Information conveyed orally
shall be designated as proprietary at the time of disclosure and shall be
reduced to writing within ten (10) business days.
Use of Supplier's Information
Company agrees to take all steps reasonably necessary to hold in trust and
confidence Supplier's Information. Company hereby agrees to hold such
Supplier's Information in strict confidence, not to disclose it to third
parties or to use it, in any way, commercially or otherwise, other than as
permitted under this Agreement. Company will limit the disclosure of
Supplier's Information to employees, consultants, agents, contractors,
Affiliated Companies and representatives with a need to know who will not
be considered as "third parties" and who: (i) have been advised of the
proprietary nature thereof; and (ii) have acknowledged the express
obligation to maintain such confidentiality. Company's obligations set
forth herein shall remain in effect for two (2) years from the receipt of
Supplier's Information considered or deemed to be confidential information,
but such obligation of confidentiality will not expire for Supplier's
Information considered or deemed to be a trade secret under applicable law.
Exceptions
Notwithstanding the other provisions of this Agreement, nothing received by
Company from Supplier will be considered to be Supplier's Information if:
(i) it has been published or is otherwise available to the public other
than by a breach of this Agreement; (ii) it has been rightfully and
lawfully received by Company from a third party without confidential
limitations; (iii) it has been independently developed by Company by
personnel having no access to such Supplier's Information; (iv) it was
known by Company prior to its first receipt from Supplier; (v) it is
hereafter disclosed by Supplier without restriction on further disclosure;
or (vi) it is disclosed to any
governmental agency or court of competent jurisdiction by written order,
subpoena or decree, or by operation of law, provided Company has given
prior notice to Supplier in order that Supplier may attempt to obtain a
protective order limiting disclosure and use of the information disclosed.
30. SUPPLIER OVERDEPENDENCE
Company has no way to know Supplier's dependence on revenues from sales to
Company in proportion to Supplier's revenues from other customers. To
protect Company from a situation in which Supplier is too dependent upon
Company for said sales, Supplier hereby agrees to release and hold Company
harmless from any and all claims and liabilities relating to Supplier's
financial stability, which may result from Company's termination of this
Agreement for any reason whatsoever.
31. SEVERABILITY
If any provision(s) of this Agreement are invalid or unenforceable under
the laws applicable to the entire Agreement, such invalidity or
unenforceability shall not invalidate or render unenforceable the entire
Agreement. Instead, the entire Agreement shall be construed as if not
containing the particular invalid or unenforceable provision(s), and the
rights and obligations of Supplier and Company shall be construed and
enforced accordingly.
32. SPECIFICATIONS
"Specifications" shall mean Supplier's technical data as well as technical
data Company furnishes to Supplier concerning the Services, material and/or
software including without limitation, drawings, sketches, models,
manufacturing level schematics, computer or other apparatus programs, and
descriptions of Services, material and/or software. If applicable, an
attached appendix identifies the Specifications contained in this
Agreement. Upon request, Supplier will provide Company a copy of all such
Specifications at no charge.
33. SURVIVAL OF OBLIGATIONS
Company's and Supplier's respective obligations hereunder which by their
nature would continue beyond the termination, cancellation or expiration of
this Agreement or any Order, shall survive. This includes, by way of
example but not limited to, the obligations provided in the sections
"COMPANY'S INFORMATION"; "DAMAGES"; "INDEMNITY"; "PATENT AND OTHER
PROPRIETARY RIGHTS INFRINGEMENT"; "PUBLICITY"; and "WARRANTY FOR SERVICES",
if applicable, shall survive such termination, cancellation or expiration.
34. TAX
Supplier shall add to the invoice an amount equal to any applicable taxes,
local, state or federal, however designated, that may be validly levied or
based upon this Agreement or upon the Material and/or Services furnished
hereunder. Taxes excluded and not applicable include:
1. Ad valorem personal property taxes;
2. State and local privilege and excise taxes based on gross revenue;
3. Taxes based on or measured by Supplier's net income; and
4. Any taxes or amounts in lieu thereof paid or payable by Supplier in
respect of the foregoing excluded items.
Supplier shall ▇▇▇▇ applicable taxes as separate items on Supplier's
invoices and shall not include them in the purchase price. Company may
have Supplier contest with the imposing jurisdiction, at Company's expense,
any such taxes that Company deems are improperly levied.
Supplier must collect all appropriate state and local sales and use taxes
from Company on all sales of taxable tangible personal property and taxable
services. The taxing situs for tangible personal property is the shipped-
to address. Therefore, suppliers that do not have "nexus", the legal
requirement to collect tax in a given state or local taxing jurisdiction,
must, as a result of this Agreement, voluntarily register with all
appropriate state and local taxing jurisdictions and collect and remit all
applicable taxes.
Company shall not pay or otherwise be liable or responsible for any
penalty, additional tax, costs or interest assessed or levied by any taxing
authority resulting from Supplier's failure to file any return, form, or
information statement such taxing authority requires. Supplier hereby
indemnifies, defends and holds Company harmless against any such
requirements.
35. TERMINATION FOR CONVENIENCE
After March 15, 2000, Company may, at any time for its own convenience and
without cause, terminate this Agreement or any Order hereunder in whole or
in part by giving Supplier at least One hundred and twenty (120) days prior
written notice. Unless otherwise specified herein, Company's sole and
exclusive liability to Supplier with respect to such termination shall be
limited to:
1. Supplier's actual cost for all components ordered and accepted by
Company that Supplier cannot use in Supplier's other operations or sell
to Supplier's other customers;
2. Supplier's actual costs in procuring material ordered and accepted by
Company that Supplier cannot use in Supplier's other operations or
cannot sell to Supplier's other customers;
3. Supplier's actual costs and expenses incurred prior to the termination
date, to the extent that Company would be liable for such costs and
expenses had Company not terminated the Agreement or Order.
In no event, shall the sum of the above costs exceed the full price of the
Services and Material on hand should Company terminate hereunder. At
Company's request, Supplier shall substantiate such costs with proof
satisfactory to Company.
36. WARRANTY FOR SERVICES
Supplier warrants to Company that Supplier shall perform Services under
this Agreement in a good and fully workmanlike manner to Company's
satisfaction and according to the Specifications set forth herein. This
warranty shall survive inspection, test, acceptance, use and payment.
APPENDIX B
DESCRIPTION OF SERVICES
COMPANY AGREES:
1. To negotiate the installment sale or rental of the appropriate complementary
equipment, when communicating with existing or prospective Network Services
subscribers and refer sales to Supplier for fulfillment of the subscriber's
order. Where such direct negotiation is not feasible, Company's
representatives may offer the subscriber referral to Supplier for the sale
or rental of the appropriate equipment. If the subscribers indicate an
interest in such referral, the Company's representative may on-line transfer
the subscriber or refer the subscriber or prospective subscriber to a
telephone number designated by Supplier.
2. To sell or rent of an average of * * * units of CPE per month and refer
those sales and rentals to Supplier, for fulfillment in a timely manner. The
commitment of * * * units per month shall be computed on a six month rolling
average. There shall be no penalty to Company for not meeting the * * *
amount, provided all such sales and/or rentals for the non-complying month
were referred to Supplier. In any event the penalty assessed to Company for
non-compliance shall not exceed the lesser of; 1) the difference between the
actual number of units sold and the number of units referred to Supplier or;
2) the difference between the number of units referred to Supplier and * * *
units.
3. To provide Supplier with minimum training standards, in writing, detailing
function and capability of each piece of equipment to be handled by
Supplier, materials and other assistance as is necessary to assist Supplier
to adequately train its telemarketing specialists.
4. To designate and approve manufacturers and distributors of equipment,
without any liability for the performance of said manufacturer or
distributor, to be sold by Supplier. Company will assist Supplier in
obtaining the equipment at a price per unit comparing favorably to the price
being offered to other purchasers of like equipment, taking into
consideration volume discounts. Company shall use its best efforts to assist
Supplier in its efforts to obtain, in a timely manner, adequate quantities
of equipment to fulfill its obligations to Company under this Agreement.
5. To have the selected equipment tested by an independent laboratory to ensure
that it works properly and is reasonably suited for its intended purpose.
6. To authorize Supplier to use the BellSouth Telecommunications name, the
BellSouth brand, trademark and/or logo (Marks) associated with the
equipment, solely in conjunction with the marketing, sale and/or rental of
said equipment. Supplier shall comply with all graphic standards for the
Marks which may furnished from time to time, and shall place appropriate
trademark notices on the Marks as instructed. Any
use of the Marks which is not authorized herein or by an authorized
representative of Company is strictly prohibited. During the term of this
Agreement, Supplier's employees will be permitted to answer calls from
referred subscribers with the phrase "BellSouth Phones". Supplier may not
use, publish or advertise in any manner an alphabetic or alpha-numeric
equivalent of an in-bound toll free phone number, including but not limited
to ▇-▇▇▇-▇▇▇-▇▇▇▇.
7. To purchase from Supplier and assume ownership/title of the equipment upon
receipt of said equipment by customer and to ▇▇▇▇ customers within the
Company's service area via USOC billing procedures as outlined in Appendix
C. Company also assumes risk of "bad debt" upon receipt of equipment by
customers within its service area.
8. To compensate Supplier for equipment ordered and received by customers who
are billed via the USOC procedures, as provided for in Appendix C.
9. To assist Supplier in developing forecasts of sales, rentals and incoming
calls to Supplier's call centers.
SUPPLIER AGREES:
1. To accept toll-free telephone calls between the hours of 8:00 a.m. and 12:00
a.m. Eastern time, Monday through Friday and from 9:00 a.m. and 6:00 p.m. on
Saturdays, except on Company recognized holidays, from subscribers and
prospective subscribers who are on-line transferred, or referred by the
Company's service representative, as provided herein. The forgoing hours may
be modified by mutual agreement of the parties.
2. To train, to the reasonable satisfaction of Company, all of its Call Center
and Customer Service telemarketing specialists who will be handling all
forms of inquiries from Company's subscribers and prospective subscribers.
These inquiries include, but are not limited to, referrals and sales,
product function, installation, billing delivery and return. Training shall
be of sufficient duration and detail to enable the telemarketing specialist
to accurately and fully understand the function of all equipment; to assist
Company's subscriber in troubleshooting; to assist with billing; to assist
with product delivery inquiries; and to assist with product returns. All
costs of such training will be borne by Supplier. A maximum of two of
Company's employees shall be allowed to observe any and all training to
ensure accuracy and completeness of training.
3. To make all reasonable efforts to ensure that all subscriber calls
transferred or referred to Supplier, as well as all subsequent customer
service calls associated with Company's subscribers are handled in a prompt,
helpful and courteous manner. Company may, at its own discretion and without
advance notice, place test calls, visit Supplier's premises, observe the
handling of calls from subscribers, assess the courtesy, knowledge and
promptness of Supplier's telemarketing specialists and discuss the results
of such
activities with Supplier's management. Supplier agrees to remove from the
work group that handles Company's subscriber calls any telemarketing
specialist who does not perform to a level of courtesy, promptness and
knowledge reasonably satisfactory to Company. Supplier shall place signs in
conspicuous places in the workplace notifying its employees that calls taken
by telemarketing specialists are subject to periodic monitoring for quality
control purposes.
4. To use its best efforts to maintain a monthly average of answering * * *% of
customer calls in * * * seconds or less and to maintain an abandon rate of
* * *% or less. Failure to maintain the preceding answer and abandon rate
for a period of three consecutive months shall constitute a breach of this
Agreement; provided, however, Supplier's inability to meet the monthly
average due to unexpected causes beyond Supplier's control, shall not give
rise to a claim of breach by Company.
5. To keep in service, solely at its own expense, sufficient telecommunication
facilities dedicated to answering customer calls, including but not limited
to toll-free lines and telephone sets, to ensure adequate access to
Suppliers Sales and Call Centers as described herein. If, at any time, the
incoming subscriber calls become too numerous to be handled, (on a recurring
basis) by the available facilities and/or telemarketing specialists
allocated by Supplier, Supplier agrees to increase the number of facilities
or telemarketing specialists to handle the increased volume of calls. When
all telecommunications facilities and/or telemarketing specialists become
busy and incoming calls encounter a busy or hold condition, Supplier shall
be permitted to make commitments to call subscribers back within four (4)
working hours of the time the subscriber's call was originally received by
Supplier.
6. To purchase and own the inventory of equipment that it sells and/or rents to
subscribers and will maintain any inventory adequate to fill orders, placed
by subscribers, within the time frames described in item 10, herein. All
equipment supplied under this Agreement shall be BellSouth branded
equipment, approved by Company and purchased only from distributors
designated by Company and authorized by Company to use its trademarks,
brands and/or logo. No equipment, material or product acquired in any manner
from any other sources, supplier, distributor or manufacturer may be
advertised, marketed, promoted or sold in any way to Company's subscribers
without the prior written consent of Company.
7. To not sell any equipment, material or product to a third party for resale,
unless Supplier, at its own expense, removes or has removed the BellSouth
trademark, brand or logo prior to the sale of said equipment, material or
product.
8. To handle all necessary communications with subscribers, following the
negotiation of sale or referral by Company, including but not limited to
post sale calls in connection with the sale or rental of the equipment.
Supplier shall provide the equipment to subscribers on an "as-ordered" basis
only.
9. To collect payment for all equipment sold to customers who reside outside
the Company's service area or may desire to make direct payment for
purchased equipment. Supplier may accept personal checks or credit cards
from customers. Supplier shall be responsible for collecting and remitting
the appropriate sales tax, as required by applicable laws on such sales.
10. To ship all credit card and USOC billing orders within two (2) working days
of the order being received by Supplier; and within five (5) working days
of receipt of the subscriber's personal check. Supplier shall provide
Company with monthly reports of all sales and shipping activity as required
by Company, in a mutually agreed format.
11. Acknowledge the value of, the popularity of, and the good will associated
with the Company's Marks and that said good will is a property right
belonging to Company. Supplier also acknowledges that the Company is the
owner of all trademark and other rights in said Marks worldwide. Supplier
recognizes that nothing contained in this Agreement is intended as an
assignment or grant to Supplier of any right, title or interest in or to
said Marks or to any other marks of Company or the good will attached
thereto. Any use of the Marks shall inure to the benefit of and be on
behalf of Company and its Affiliated Companies, except Supplier may use and
receive the benefit of the Marks as provided in this Agreement. Supplier
further recognizes that this Agreement does not confer any right on
Supplier to use the Marks in any manner outside of the United States, or to
grant sub-licenses, and is not assignable. Supplier will do nothing
inconsistent with Company's ownership of the Marks. Supplier acknowledges
that in the event, after a thirty (30) day notice has been issued to
Supplier and Supplier remains in breach of these terms and continues to act
in any manner which materially and negatively impacts on the reputation of
Company, its Marks or its Affiliated Companies, Company shall have the
right to, (i) bring an action against Supplier at law or in equity to
protect the Marks and to recover damages as the result of any misuse or
unauthorized use thereof and/or; (ii) terminate this Agreement for any such
misuse or unauthorized use by Supplier.
12. Upon termination, cancellation or expiration of this Agreement, to (i)
cease answering calls with the phrase "BellSouth Phones"; (ii) cease any
uses of the Marks, and; (iii) cease its use of all materials and other
tangible items bearing the Marks. Supplier shall certify compliance with
this paragraph in writing to Company within thirty (30) days of the
expiration, termination or cancellation date. Upon expiration, termination
or cancellation of this Agreement, Supplier will be allowed to sell and/or
rent the remaining equipment in its possession independently of this
Agreement so long as the Marks used on or in connection with the sale
and/or rental of the equipment are either (i) removed or (ii) comply with
the graphic standards set forth in this Agreement.
13. Expend consideration, in amounts and forms to be mutually agreed upon,
promoting the ongoing sales of said equipment. This promotion may take the
form of additional
training or manufacturer's incentives for Company's customer service
representatives or printed media advertising upon approval by Company
representative.
14. To compensate Company under the "Part X" compensation plan as described in
Appendix C, for the direct negotiation and/or referral of equipment
rentals.
15. To compensate Company for all CPE units sold via credit card or direct
payment as described in Appendix C "Credit Card Sales".
16. To accept returned merchandise under the "Thirty Day - Try and Buy" program
and credit Company for said returns. The process for handling such returns
shall be mutually agreed upon by Company and Supplier representatives.
APPENDIX C
PRICES AND TERMS OF PAYMENT
PART X COMPENSATION
--------------------
Supplier shall compensate Company, for the rentals directly negotiated by
Company's service representatives, using the following formula:
* * *
AVERAGE NEGOTIATION TIME
The average time spent negotiating the sale of Caller ID and other display
equipment is hereby established at * * *. This average is subject to
adjustment at any time during the term of this Agreement, based on the
nature of the telecommunications equipment being sold.
COMPENSATION RATE
The per minute rate by which Company will be compensated by Supplier is
established at * * * per minute. This rate may be adjusted annually based
on Company's employee compensation rates.
BILLING
Company will ▇▇▇▇ Supplier monthly based on the previous month's sales
activity.
USOC BILLING PROCEDURES
-----------------------
Supplier shall provide Company an invoice for all sales under the USOC
billing system by the fifth (5th) working day of the succeeding month. The
invoices shall be itemized by each type of CPE and include:
Equipment Type
Number of units sold
Retail selling price of the unit
Company cost for the unit
Shipping charges
Totals
Company and Supplier representatives shall mutually agree upon a format for
the above report.
Company and Supplier representatives shall mutually agree, in writing, upon
the retail selling price, cost price to Company and shipping charges for
each item of CPE to be billed via the USOC system.
CREDIT CARD SALES
-----------------
Supplier shall compensate Company for all sales made via credit card
according to the following formula:
* * *
Supplier shall provide Company with a report of all credit card sales in a
mutually agreed format by the tenth (10th) working day following the end
of the month.
APPENDIX D
NonDiscrimination Compliance Agreement
The term "Supplier" as used herein, shall also mean, when applicable, Supplier,
Vendor, Supplier, Supplier or other defined term as used in the body of the
Agreement.
Suppliers shall comply with the applicable provisions of the following:
FAR 19.704, 52.219-8 and 52.219-9, Exec. Order No. 12138, P. L. 95-507, Exec.
Order No. 11246, Exec. Order No. 11625, Section 8 of the Small Business Act as
amended, Railroad Revitalization and Regulatory Reform Act of 1976, Exec. Order
No. 11701, Exec. Order ▇▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, Section 503 of the
Rehabilitation Act of 1973 as amended by ▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇ Era Veteran's
Readjustment Assistance Act of 1974 and the rules, regulations and relevant
Orders of the Secretary of Labor pertaining to the Executive Orders and Statutes
listed above.
For contracts of or which aggregate to $2,500 or more annually, the following
table describes the clauses which are included in the contract:
1. Inclusion of the Equal Employment clause in all contracts and orders;
2. Certification of non-segregated facilities;
3. Certification that an affirmative action program has been developed and
is being filed;
4. Certification that an annual Employers Information Report (EEO-1 Standard
Form 100) is being filed;
5. Inclusion of the "Utilization of Minority and Women's Business
Enterprises" clause in all contracts and orders;
6. Inclusion of the "Minority and Women's Business Enterprise Subcontracting
Program" clause in all contracts and orders;
7. Inclusion of the "Listing of Employment Openings" clause in all contracts
and orders;
8. Inclusion of the "Employment of the Handicapped" clause in all contracts
and orders;
Contract Value Clause(s) Required
$ 2,500 to $10,000 8
$10,000 to $50,000 1,2,5,6,7,8
$50,000 or more 1,2,3*,4*,5,6,7,8
* Applies only for businesses with 50 or more employees
1. Equal Employment Opportunity Provisions
In accordance with Exec. Order No. 11246, dated September 24, 1965 and Part
60-1 of Title 41 of the codes of Federal Regulations (Public Contracts and
Property Management, Office of Federal Contract Compliance, Obligations of
Suppliers and Sub-contractors), as may be amended from time to time, the
parties incorporate herein by this reference the regulations and contract
clauses required by those provisions to be made a part of Government
contracts and subcontracts.
2. Certification of Non-segregated Facilities
The Supplier certifies that it does not and will not maintain any facilities
it provides for its employees in a segregated manner, or permit its
employees to perform their services at any location under its control where
segregated facilities are maintained and that it will obtain a similar
certification prior to the award of any nonexempt subcontract.
3. Certification of Affirmative Action Program
The Supplier affirms that it has developed and is maintaining an affirmative
action plan as required by Part 60-2 of Title 41 of the Code of Federal
Regulations.
4. Certification of Filing of Employers Information Reports
The Supplier agrees to file annually, on or before the 31st day of March,
complete and accurate reports on Standard Form 100 (EEO-1) or such forms as
may be promulgated in its place.
5. Utilization of Minority and Women's Business Enterprises
(a) It is the policy of the Government and BellSouth Corporation and its
affiliates as a Government Supplier, that minority and women's business
enterprises shall have the maximum practicable opportunity to
participate in the performance of contracts.
(b) The Supplier agrees to use his or her best efforts to carry out this
policy in the award of his or her subcontracts to the fullest extent
consistent with the efficient performance of this contract. As used in
this contract, the term "minority or women's business enterprise" means
a business with at least 51 percent of which is owned by minority or
women group members or in case of publicly owned businesses at least 51
percent of the stock of which is owned by minority or women group
members. For purposes of this definition, minority group members are
Blacks, Hispanics, Asians, Pacific Islanders, American Indians, and
Alaskan Natives. Suppliers may rely on written representation by Sub-
contractors regarding their status as minority or women's business
enterprises in lieu of an independent investigation. The Supplier shall
inform its Sub-contractors that any who misrepresent their status as
small, minority or women-owned business enterprises in order to obtain
for themselves a contract are subject to substantial penalties under
law.
6. Minority and Women's Business Enterprise Subcontracting Program
(a) The Supplier agrees to establish and conduct a program which will
enable minority and women's business enterprises (as defined in
paragraph 5 above) to be considered fairly as Sub-contractors and
suppliers under the contract. In this connection, the Supplier shall:
(b) Designate a liaison officer who will administer the Supplier's minority
and women's business enterprises program;
(c) Provide adequate and timely consideration of the potentialities of
known minority and women's business enterprises in all "make-or-buy"
decisions;
(d) Assure that known minority and women's business enterprises will have
an equitable opportunity to compete for subcontracts, particularly by
arranging solicitations, time for the preparation of bids, quantities,
specifications, and delivery schedules so as to facilitate the
participation of minority and women's business enterprises;
(e) Maintain records showing (i) procedures which have been adopted to
comply with the policies set forth in this clause, including the
establishment of a source list of minority and women's business
enterprises, (ii) awards to minority and women's business enterprises
on the source list, and (iii) specific efforts to identify and award
contracts to minority and women's business enterprises;
(f) Include the Utilization of Minority and Women's Business Enterprises
clause in subcontracts which offer substantial minority and women's
business enterprises subcontracting opportunities;
(g) Cooperate with the Government's Contracting Officer for BellSouth
Corporation or its affiliates in any studies and surveys of the
Supplier's minority and women's business enterprises procedures and
practices that the Government's Contracting Officer may from time to
time conduct;
(h) Submit periodic reports of subcontracting to known minority and women's
business enterprises with respect to the records referred to in
subparagraph (4) above, in such form and manner and at such time (not
more often than quarterly) as the Government's Contracting Officer for
BellSouth Corporation or its affiliates may prescribe.
(i) The Supplier agrees to provide assurances that the Supplier will
include the clause in the contract entitled "Utilization of Small
Business Concerns, Small Disadvantaged Business Concerns and Women's
Business Enterprises" in all subcontracts that offer further
subcontracting opportunities, and that the Supplier will require all
subcontracts (except small business concerns) who receive subcontracts
in excess of $500,000 ($1,000,000 for construction of any public
facility), to adopt a plan similar to the plan agreed to by the
Supplier.
7. List of Employment Openings for Veterans
In accordance with Exec. Order 11701, dated January 24, 1973, and Part 60-
250 of Title 41 of the Code of Federal Regulations, as it may be amended
from time to time, the parties incorporate herein by this reference the
regulations and contract clauses required by those provisions to be made a
part of Government contracts and subcontracts.
8. Employment of the Disabled
In accordance with Exec. Order 11758, dated January 15, 1974, and Part 60-
741 of Title 41 of the Code of Federal Regulations as may be amended from
time to time, the parties incorporate herein by this reference the
regulations and contract clauses required by those provisions to be made a
part of Government contracts and subcontracts.
APPENDIX E
BELLSOUTH TELECOMMUNICATIONS, INC.
STATEMENT OF POLICY ON DEALINGS
WITH SUPPLIERS AND SUPPLIERS
BellSouth Telecommunications, Inc., and its affiliated companies (hereinafter
"BellSouth") does business with many Suppliers and suppliers. It is a
fundamental policy of BellSouth that such dealings shall be conducted on a fair
and non-discriminatory basis, free from improper influences, so that all
participating Suppliers and suppliers may be considered on the basis of the
quality and cost of their product or service.
BellSouth's policy is to seek out and obtain technically suitable products and
services at the lowest overall cost. Accordingly, BellSouth will not recognize
any oral agreement; any conversations with BellSouth's employees or
representatives shall not be construed to imply a commitment or obligation on
behalf of BellSouth. Any information disclosed or made know to BellSouth shall
be deemed as public and nonproprietary. Information shall not be received in
confidence, unless a prior written agreement authorizing such exchange of
information has been executed by an authorized representative of BellSouth.
BellSouth is committed to doing business with Suppliers and suppliers in an
atmosphere in keeping with the highest standards of business ethics. Therefore,
it is BellSouth's Policy that our employees shall not accept form customers;
from suppliers of property, goods, or services; or from other persons, any
gifts, benefits or unusual hospitality that may in any way tend to influence or
have the appearance of influencing them in the performance of their jobs.
Those employees of BELLSOUTH authorized to make purchases or negotiate contracts
are aware of this policy, and your cooperation is solicited in order to
forestall any embarrassing situations.