Exhibit 10.7
Agreement Number 01021189
Agreement # 01021189
for
Materials and Services
Between
CT TECHNOLOGY INC.
And
SBC SERVICES INC.
Proprietary Information
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their affiliated companies and their third party representatives,
except under written Agreement by the contracting Parties.
1
Agreement Number 01021189
1. PREAMBLE AND EFFECTIVE DATE
This Agreement, effective on the date when signed by the last Party ("Effective
Date"), is between CT Technology, a Texas corporation ("Supplier"), and SBC
Services, Inc., a Delaware corporation ("SBC"), each of which may be referred to
in the singular as "Party" or in the plural as "Parties."
2. SCOPE OF THE AGREEMENT
Subject to the terms and conditions of this Agreement, Supplier shall
provide to SBC the Material and Services described in Appendix A. The applicable
price for the Material and Services is specified in Appendix B. Supplier agrees
that the Material and Services shall strictly conform to the Specifications,
including those specified in Appendix C.
3. DEFINITIONS
a. "Affiliate" means (1) a company, whether incorporated or not, which owns,
directly or indirectly, a majority interest in either Party (a "parent
company"), and (2) a company, whether incorporated or not, in which a five
percent (5%) or greater interest is owned, either directly or indirectly,
by: (i) either Party or (ii) a parent company.
b. "Agreement" shall have the meaning specified in the Section called "Entire
Agreement."
c. "Cancellation" means the occurrence by which either Party puts an end to
this Agreement or Orders placed under this Agreement for breach by the
other, and its effect is the same as that of "Termination" and, except as
otherwise provided for herein, the canceling Party also retains any remedy
for breach of the whole Agreement or any unperformed balance.
d. "Delivery" means Supplier's obligation to provide Material and/or Services
that strictly conform to the Specifications. Supplier completes Delivery:
(i) upon SBC's possession of the Material if Supplier is not required to
provide additional Services, such as installation, (ii) upon completing
such additional Services, if Supplier is required to provide such Services
in connection with providing Material, or (iii) for Services, upon
completing the provision of Services. Notwithstanding the above, Delivery
shall not be deemed completed until Supplier causes the Material and
Services to conform to the Specifications in all material respects or upon
Acceptance of such Material and Services by SBC.
e. "Information" means all ideas, discoveries, concepts, know-how, trade
secrets, techniques, designs, specifications, drawings, sketches, models,
manuals, samples, tools, computer programs, technical information, and
other confidential business, customer or personnel information or data,
whether provided orally, in writing, or through electronic or other means.
f. "Laws" shall have the meaning specified in the Section called "Compliance
with Laws."
g. "Liability" means all losses, damages, expenses, costs, penalties, fines
and fees, including reasonable attorneys' fees and consulting fees, arising
from or incurred in connection with a claim or cause of action related to
performance or omission of acts under this Agreement or any Order,
including, but not limited to, claims or causes of actions brought by third
parties.
h. "Material" means a unit of equipment, apparatus, components, tools,
supplies, material, hardware, or firmware thereto, or Software purchased or
licensed hereunder by SBC from Supplier, including third party Material
provided or furnished by Supplier. Material shall be deemed to include any
replacement parts.
i. "Order" means such purchase orders, work orders, forms, memoranda or other
written communications as may be Delivered to Supplier for the purpose of
ordering Material and Services hereunder.
j. "Regulated Substance" means any Material that is regulated by federal,
state, or local authorities during transportation, handling, or removal.
k. "Service(s)" means any and all labor or service provided in connection with
this Agreement or an applicable Order, including, but not limited to,
consultation, engineering, installation, removal, maintenance, training,
technical support, repair and programming.
Proprietary Information
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their affiliated companies and their third party representatives,
except under written Agreement by the contracting Parties.
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Agreement Number 01021189
l. "Specifications" mean (i) Supplier's applicable Specifications and
descriptions, including any warranty statements, and (ii) SBC's
requirements, Specifications, and descriptions specified in, or attached
to, this Agreement or an applicable Order, which shall control over an
inconsistency with Supplier's Specifications and descriptions.
m. "Termination" means the occurrence by which either Party, pursuant to the
provisions or powers of this Agreement or pursuant to Laws and regulations,
puts an end to this Agreement and/or Orders placed under this Agreement
other than for breach. On "Termination" all executory obligations are
discharged, but any right based on breach of performance survives, except
as otherwise provided herein.
4. CANCELLATION
In the event that Supplier fails to perform, in whole or in part, their
obligations under this Agreement or any Order, or otherwise breaches or defaults
on their obligation herein, SBC may elect to cancel this Agreement and/or Orders
without any financial obligation or Liability on the part of SBC except that SBC
shall pay Supplier for all software delivered up until the date of cancellation.
5. COMPLIANCE WITH LAWS
Supplier shall comply with all applicable federal, state, county, and local
rules, including, without limitation, all statutes, laws, ordinances,
regulations and codes ("Laws"). Supplier's obligation to comply with all Laws
includes the procurement of permits, certificates, approvals, inspections and
licenses, when needed, in the performance of this Agreement. Supplier further
agrees to comply with all applicable Executive Orders and federal regulations.
Supplier shall defend, indemnify and hold SBC harmless from and against any
Liability that may be sustained by reason of Supplier's failure to comply with
this Section.
6. DELIVERY, PERFORMANCE, AND ACCEPTANCE
Supplier agrees that all dates for Delivery of Material and Services are firm,
time is of the essence, and Supplier will complete Delivery in strict
conformance with the Specifications. After Delivery, SBC shall have a reasonable
time to inspect and test the Material and/or Services, and acceptance shall not
occur until the Material and/or Services are shown to strictly comply with the
Specifications ("Acceptance").
7. ENTIRE AGREEMENT
a. The terms contained in this Agreement and in any Orders, including all
exhibits, appendices and subordinate documents attached to or referenced in
this Agreement or in any Orders, constitute the entire integrated Agreement
between Supplier and SBC with regard to the subject matter contained
herein. This Agreement supercedes all prior oral and written
communications, agreements and understandings of the Parties, if any, with
respect hereto. Acceptance of Material and/or Services, payment or any
inaction by SBC, shall not constitute SBC's consent to or acceptance of any
additional or different terms from those stated in this Agreement, except
for terms in an Order inserted by SBC and signed by both Parties. Estimates
furnished by SBC are for planning purposes only and shall not constitute
commitments. Supplier covenants never to contend otherwise.
b. No oral promises or statement have induced either Party to enter into this
Agreement, and the Parties agree that the Agreement's express language may
only be modified or amended through a subsequent written document signed by
the Parties.
8. GOVERNING LAW
This Agreement shall be construed in accordance with the Laws of the state of
Texas, and, for purposes of applying its Uniform Commercial Code, "services"
shall be deemed to be "goods."
9. INDEMNITY
Supplier shall indemnify, defend, and hold harmless SBC and its Affiliates, and
directors, shareholders, agents, and employees (each of them "Indemnitees"),
from and against any fine, penalty, loss, cost, damage, injury, claim, expense,
including reasonable attorneys' fees, or Liability, including, but not limited
to, Liabilities associated with (1) injury to or death of any person, (2) damage
to, or loss or destruction of, any property; (3) contamination of, or any
adverse impact upon,
Proprietary Information
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their affiliated companies and their third party representatives,
except under written Agreement by the contracting Parties.
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Agreement Number 01021189
the environment, (4) attachments, liens or claims of materialmen or laborers,
(5) breach of a Supplier warranty, or (6) infringement of a patent, copyright,
trademark, service ▇▇▇▇, trade secret, or other legally protected proprietary
right, where such Liabilities arise out of, result from, or are incurred in
connection with acts or omissions in connection with this Agreement, except for
that portion of Liabilities caused by the sole negligence or willful misconduct
of SBC. Supplier shall keep Indemnitees fully informed of any such defense and
afford Indemnitees, at their own expense, an opportunity to participate in the
defense or settlement of such Liabilities.
10. INFORMATION
Except with SBC's prior written consent or as required by this Agreement,
Supplier shall not use or provide to others any SBC business or customer
Information except when such references to SBC are made by the Supplier in
compliance with SEC filing regulations. Upon completion of this Agreement,
Supplier shall promptly return such SBC Information. Except with SBC's prior
written approval, Information provided by Supplier shall not be deemed
confidential.
11. INSURANCE
a. In addition to Supplier's obligation to indemnify, Supplier agrees to
maintain, at all times during performance of this Agreement, the following
minimum insurance coverages and limits and any additional insurance and/or
bonds required by Law: (a) Workers' Compensation insurance with benefits
afforded under the Laws of the state in which Services are to be performed
and Employers Liability insurance with minimum limits of $100,000 for
Bodily Injury-each accident, $500,000 for Bodily Injury by disease-policy
limits and $100,000 for Bodily Injury by disease-each employee; (b)
Commercial General Liability insurance with minimum limits of: $2,000,000
General Aggregate limit; $1,000,000 each occurrence sub-limit for all
bodily injury or property damage incurred in any one occurrence; $1,000,000
each occurrence sub-limit for Personal Injury and Advertising; $2,000,000
Products/Completed Operations Aggregate limit, with a $1,000,000 each
occurrence sub-limit for Products/Completed Operations. Fire Legal
Liability sub-limits of $300,000 are required for lease agreements; (c) If
use of a motor vehicle is required, Automobile Liability insurance with
minimum limits of $1,000,000 combined single limits per occurrence for
bodily injury and property damage, which coverage shall extend to all
owned, hired, and non-owed vehicles.
b. SBC and its Affiliated companies will be named as an Additional Insured on
the Commercial General Liability policy. SBC requires that companies
affording insurance coverage have a B+ VII or better rating, as rated in
the A.M. Best Key rating Guide for Property and Casualty Insurance
Companies. A certificate of insurance stating the types of insurance and
policy limits provided the Supplier must be received prior to commencement
of any work. If a certificate is not received, Supplier hereby authorizes
SBC, and SBC has the right, but not the duty, to obtain such specified
insurance on behalf of Supplier.
12. INVOICES AND PAYMENT
Supplier shall render invoices promptly after providing Material or performing
Services. SBC shall pay for Material and Services satisfactorily provided. SBC
has a right to withhold payment for any amount that is in dispute. SBC shall not
withhold amounts that are not in dispute. SBC may offset amounts owed Supplier
by any amount Supplier owes SBC. Invoices shall be sent to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇-▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. LIMITATION OF LIABILITY
SBC and Supplier agree that regardless of the claim or the form in which any
legal or equitable action may be brought by SBC or Supplier against the other
party, SBC and Supplier shall not be liable for any indirect, special,
incidental, consequential, exemplary or punitive damages, including, without
limitation, loss of profits, promotional expenses, injury to reputation, or loss
of customers. Supplier shall not be liable for any damages arising from delay in
Delivery of Materials and/or Services, if such delays are due to force majeure.
Proprietary Information
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their affiliated companies and their third party representatives,
except under written Agreement by the contracting Parties.
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Agreement Number 01021189
14. MARKING, PACKING, & SHIPPING
Unless SBC otherwise instructs, Supplier shall ▇▇▇▇ all Material with
appropriate identification in a conspicuous and readily accessible location,
properly pack, and include a packing slip with appropriate Material
identification, description, and Agreement number, all at no additional cost.
Supplier shall ship orders complete to SBC's designated site prepaid using a
reliable common carrier based on the lowest published price. Invoices for
Material shipped must include a copy of a ▇▇▇▇ of lading or freight ▇▇▇▇.
15. NOTICES
a. Except as otherwise provided in this Agreement or an applicable Order, all
notices or other communications hereunder shall be deemed to have been duly
given when made in writing and either (i) delivered in person, or (ii) when
received, if provided via electronic communications, including, but not
limited to, electronic mail and facsimile communications, or (iii) when
received, if provided by an overnight or similar delivery service, or (iv)
when received, if deposited in the United States Mail, postage prepaid,
return receipt requested, and addressed as follows:
CT Technology SBC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ Fax# ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇@▇▇▇.▇▇▇ Fax # ▇▇▇ ▇▇▇-▇▇▇▇
-------------------- --------------
b. The addresses and facsimile telephone number to which notices or
communications may be given by either Party may be changed by written
notice given by such Party to the other pursuant to this Section.
16. PUBLICITY
Supplier shall not use SBC's or its Affiliates' names or any language, pictures,
trademarks, service marks or symbols which could, in SBC's judgment, imply SBC's
or its Affiliates' identity or endorsement by SBC, its Affiliates or any of its
employees in any (i) written, electronic, or oral advertising or presentation or
(ii) brochure, newsletter, book, electronic database, or other written material
of whatever nature, without SBC's prior written consent (hereafter the terms in
these Subsections (i) and (ii) above shall be collectively referred to as
"Publicity Matters"). Supplier will submit to SBC for written approval, prior to
publication, all Publicity Matters that mention or display SBC's or its
Affiliates' names, trademarks or service marks or that contain any symbols,
pictures or language from which a connection to said names or marks may be
inferred or implied.
17. TAXES
The prices applicable to work under this Agreement shall include all taxes
except applicable state sales and use taxes, which taxes SBC will pay provided
they are added to the prices and stated as separate items on and at the time the
applicable invoice is submitted by Supplier.
18. TERM OF AGREEMENT
This Agreement is effective on the date the last Party signs and, unless
Terminated or Canceled as provided in this Agreement, shall remain in effect for
a term ending April 1, 2002.
19. TERMINATION
SBC may Terminate this Agreement in whole or in part upon written notice to
Supplier. Upon Termination, Supplier may invoice SBC for reasonable Termination
charges consisting of a percentage of the Order performed prior to Termination,
minus salvage value of any work Terminated. SBC's payment shall be considered a
complete and final discharge of any Liability as a result of such Termination.
No Termination charges shall apply to Material not specifically manufactured for
this Agreement if Termination occurs at least thirty (30) days prior to the
scheduled Delivery date.
20. TITLE & RISK OF LOSS
Proprietary Information
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their affiliated companies and their third party representatives,
except under written Agreement by the contracting Parties.
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Agreement Number 01021189
Title and risk of loss shall pass to SBC upon Acceptance. If this Agreement
calls for Supplier to perform additional Services after Material has been
provided, such as unloading or installation, then Supplier will retain risk of
loss to Material until the additional Services have been Accepted.
21. WARRANTY
Supplier warrants that: (a) all Material and Services provided in connection
with this Agreement shall conform in all material repects to the Specifications;
(b) Services will be provided by qualified personnel, performed in a
professional manner, and to SBC's reasonable satisfaction; and if any Services
is dependent on the work of others, Supplier shall inspect such work and inform
SBC of any defects therein prior to commencing such Services; (c) all Material
and Services are and will remain free of any defects, liens, and encumbrances of
any kind; (d) Supplier shall be solely responsible and liable for all acts and
omissions of personnel it furnishes to perform work in connection with this
Agreement, and such personnel shall be solely considered employees or agents of
Supplier; (e) Supplier has not offered or provided any consideration to SBC's
employees as an inducement to enter into this Agreement; (f) If any Material
involves a Regulated Substance, Supplier shall notify SBC in writing prior to
performance. After Supplier's notification, SBC has a right to terminate any
affected Order, without Liability; and (g) Supplier shall cause all Services to
be performed in conformance with all applicable SBC work rules, including its
Code of Conduct (a copy of which is available upon request).
22. MISCELLANEOUS TERMS
Except as may otherwise be provided in this Agreement or in another document
signed by the Party against whom enforcement is asserted, the Parties agree
that: (a) SBC provides no license or right under any SBC property, patent,
copyright, service or trademark; (b) Supplier will maintain complete records
relating to performance of this Agreement in accordance with Generally Accepted
Accounting Principles, and Supplier will provide such records to SBC in order to
permit SBC to audit them to ensure Supplier's performance under this Agreement;
(c) Supplier will not assign or delegate its rights or duties; (d) SBC may
complete any Supplier work if Supplier is in default under this Agreement; (e)
Any remedy specified in this Agreement is in addition to any remedy the contract
Parties are entitled in law or equity; (f) If any part of this Agreement is
unenforceable, the Parties intend for the remaining parts to be enforced; and
(g) Any term which by its nature is intended to survive expiration, Termination
or Cancellation, shall so survive.
23. DISPUTE RESOLUTION
The Parties agree that any claim, cause of action or other dispute based upon or
arising out of this Agreement or Order and/or its breach, performance,
interpretation and/or application (a "Dispute") shall be conducted, decided,
determined and/or resolved pursuant to and in accordance with the provisions of
this Section 24. In the event of any Dispute, the Parties agree to attempt in
good faith to resolve their Dispute between themselves. If the Parties are
unable to settle their Dispute, they agree to submit the matter to non-binding
mediation. The Parties shall unanimously agree on a mediator. If the Parties are
unable to agree on a mediator, each Party shall select its own mediator from the
current list of certified mediators from the Association of Attorney-Mediators.
The mediators so selected shall then select a third independent mediator who
will conduct the mediation session(s). The mediator's fees will be borne equally
by both Parties. Unless the Parties agree otherwise, all matters, including the
conduct and demeanor of the Parties and their counsel during mediation, are
confidential and shall be inadmissible as settlement discussions pursuant to
Rule 408 of the Federal Rules of Evidence or the applicable state rules. If (i)
mediation is unsuccessful, (ii) the mediator declares an impasse or (iii) such
Dispute has not been resolved by mediation within 60 days of commencement of
mediation, then such Dispute shall be submitted to arbitration in accordance
with the remainder of this Section 24. Any such arbitration shall be conducted
under the following terms and conditions:
a. Arbitration will be under the Commercial Arbitration Rules of the
American Arbitration Association. The arbitration proceedings will be
conducted in Dallas, Texas.
b. In any arbitration there will be one arbitrator selected by the
mediator who mediated the dispute in accordance with the above
provisions, provided, that the arbitrator shall have knowledge of and
experience in dealing with the corporate law and business agreements.
c. The award rendered in arbitration will be final and binding and may be
enforced in any court of competent
Proprietary Information
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their affiliated companies and their third party representatives,
except under written Agreement by the contracting Parties.
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Agreement Number 01021189
jurisdiction.
d. Unless the arbitrator finds that exceptional circumstances require
otherwise, each Party shall bear its own costs of arbitration,
including attorneys' fees.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives:
CT Technology SBC SERVICES, INC.
By: By:
-------------------------------------- -------------------------------
Printed Name: Printed Name:
---------------------------- ---------------------
Title: Title:
----------------------------------- ----------------------------
Date: Date:
------------------------------------ -----------------------------
Proprietary Information
The information contained in this Agreement is not for use or disclosure outside
SBC, Supplier, their affiliated companies and their third party representatives,
except under written Agreement by the contracting Parties.
7