Master Services Agreement for System Management Services - NationsBanc Services Inc. and Network Solutions Inc.
MASTER SERVICES AGREEMENT
FOR
SYSTEM MANAGEMENT SERVICES
REFERENCE NO.012272-001-001
BY AND BETWEEN
NATIONSBANC SERVICES, INC.
AND
NETWORK SOLUTIONS, INC.
<PAGE> 2
MASTER SERVICES AGREEMENT
REFERENCE NO.012272-001-001
TABLE OF CONTENTS
SECTION NO. SECTION HEADING
---------- -----------------------------------------------
1.0 Term of Agreement
2.0 Affiliates
3.0 Scope of Agreement
4.0 Mutual Representations and Warranties
5.0 Representations and Warranties of Company
6.0 Covenants
7.0 Force Majeure
8.0 Relationship/Personnel
9.0 Subcontracting
10.0 Ordering of Services
11.0 Non-Discrimination
12.0 Confidentiality
13.0 Security
14.0 Indemnification
15.0 Damages
16.0 Insurance
17.0 Minority Business Development Initiative
18.0 Administration
19.0 Pricing/Fees
20.0 Invoices/Taxes/Payments
21.0 Retention of Records/Audit
22.0 Termination
23.0 Notices
24.0 Assignment
25.0 Arbitration
26.0 Applicable Law
27.0 Miscellaneous
EXHIBIT A GENERAL CLASSIFICATIONS FOR SERVICES
EXHIBIT B JOB CATEGORIES
EXHIBIT C NATIONSBANC MASTER CONTRACT TIME AND MATERIAL/LABOR
HOUR RATES
<PAGE> 3
MASTER SYSTEM MANAGEMENT SERVICES AGREEMENT
REFERENCE NO.012272-001-001
This Master System Management Services Agreement ("Agreement") is entered into
by and between NationsBanc Services, Inc. ("NBSI") and Network Services, Inc.
("Company").
This Agreement establishes the terms, conditions and consideration under which
Company will provide services ("Services") for System Management Services as
specified in EXHIBIT B, attached and by this reference incorporated hereto.
1.0 TERM OF AGREEMENT
1.01. INITIAL TERM. This Agreement shall apply and remain in effect from
January 1, 1997 through December 31, 1999, excluding any potential
renewal term(s) ("Initial Term") unless sooner terminated as provided
herein.
1.02. EXTENSIONS. NBSI shall have the right to extend this Agreement for an
additional twelve (12) month period(s) ("Renewal Term") by giving
Company written notice of its intent at least thirty (30) calendar
days prior to the end of the Initial Term.
1.03. CONTINUATION OF AGREEMENT. In the event NBSI fails to notify Company
of its intent to renew or terminate this Agreement, the Agreement
shall continue in effect on a month-to-month basis, at the prices last
offered for Services under the Initial Term, until canceled by either
party upon thirty (30) calendar days prior written notice to the
other.
2.0 AFFILIATES
2.01. Definition. When used in this Agreement, the term "NBSI Affiliate"
shall mean all entities now or hereafter controlling, controlled by,
or under common control, directly or indirectly, of NBSI or NBSI's
parent.
2.02. RIGHTS OF NBSI AFFILIATES. Company expressly acknowledges and agrees
that (a) NBSI has contracted with Company under this Agreement in
order to satisfy current or future obligations of NBSI to, or
requirements of, one or more NBSI Affiliates, (b) to the extent that
the interests of NBSI Affiliates are affected by this Agreement, all
obligations of Company under this Agreement shall extend, and all
rights and privileges of NBSI shall accrue, to the NBSI Affiliates to
the same extent as such obligations, rights and privileges extend or
accrue to NBSI under this Agreement, and (c) notwithstanding the
foregoing, NBSI shall solely be responsible to Company for the
performance of NBSI's obligations under this Agreement.
3.0 SCOPE OF THE AGREEMENT
3.01. Company will provide the Services as set forth in EXHIBIT B, attached
hereto, in accordance with the requirements for Services set forth
therein.
3.02. Any written document submitted to NBSI by Company in connection with
this Agreement, including but not limited to, invoices, Services
schedules, and the like shall reference, as applicable, Contract Task
Order number and/or Agreement reference number.
4.0 MUTUAL REPRESENTATIONS AND WARRANTIES
4.01. Each party represents and warrants the following: (a) in performance
of its obligations under this Agreement, each party shall act fairly
and in good faith; (b) its execution, delivery and performance of this
Agreement (i) have been authorized by all necessary corporate action,
(ii) do not violate the terms of any law, regulation, or court order
to which such party is subject, or the terms of any material agreement
to which the party or any of its assets may be subject, and (iii) are
not subject to the consent or approval
1
<PAGE> 4
of any third party; (c) this Agreement is the valid and binding
obligation of the representing party, enforceable against such party
in accordance with its terms; and (d) such party is not subject to any
pending or threatened litigation or governmental action which could
interfere with such party's performance of its obligations hereunder.
5.0 REPRESENTATIONS AND WARRANTIES OF COMPANY
5.01. In rendering its obligations under this Agreement, without limiting
other applicable performance warranties, Company represents and
warrants to NBSI as follows: (a) all work will be performed in a
professional and workmanlike manner; (b) Company is in good standing
in the state of its incorporation and is qualified to do business as a
foreign corporation in each of the states in which it is providing
services hereunder; and (c) Company shall secure all permits,
licenses, regulatory approvals and registrations required to render
services set forth herein, including without limitation, registration
with the appropriate taxing authorities for remittance of taxes.
6.0 COVENANTS
6.01. During the term of this Agreement, Company shall (a) use all
reasonable efforts to avoid the disruption of normal operations of
NBSI or any NBSI Affiliate; (b)at all times maintain capital and other
financial resources sufficient to permit Company to perform its
obligations under this Agreement; (c) pay its debts generally as they
become due; and (d) at the request of NBSI, shall deliver to NBSI
financial statements of Company as prepared by or for Company in the
ordinary course of its business and covenant that such financial
statements are true and correct in all material respects; and (e)
notify NBSI immediately in the event there is a material adverse
change in the business or financial condition of Company since the
last submission of financial statements to NBSI.
7.0 FORCE MAJEURE
7.01. SUSPENSION OF OPERATIONS. Neither party shall be liable for damages
for delay in the Services herein arising out of causes beyond its
control and without its fault or negligence, including, but not
limited to, act of God or of the public enemy, acts of the Government,
fires, floods, epidemics, strikes, labor disturbances or freight
embargoes (but not including delays caused by subcontractors or
suppliers), provided that, in the case of Company, Company shall
within ten (10) days from the beginning of such delay, notify NBSI in
writing of the cause of delay and Company's contingency plan to cure
such delay; however, if a delay exceeds a total of thirty (30) days,
NBSI may terminate this Agreement.
7.02. CONTINGENCY PLAN. Company agrees to establish and maintain policies
and procedures relevant to contingency plans, recovery plans, and
proper risk controls to ensure Company's continued performance under
this Agreement. Said policies and procedures must be in place within
sixty (60) business days from the date of execution of this Agreement
and shall include, but not be limited to, testing with respect to
reasonable assurance of effectiveness, control functions with respect
to accountability elements and corrective actions to be immediately
implemented, if necessary. Company agrees to provide copies of said
policies and procedures to NBSI, upon request.
8.0 RELATIONSHIP/PERSONNEL
8.01. INDEPENDENT CONTRACTOR STATUS. This Agreement shall not be construed
as creating an employee/employer, agency, partnership, or joint
venture relationship between Company (or any of its agents or
employees) and NBSI or NBSI Affiliates. Each party shall have the
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed, all work to be performed under this Agreement
and shall be liable for the acts or omissions of their employees and
agents in performing their respective obligations hereunder.
8.02. CHANGE IN PERSONNEL. Upon the request of NBSI, Company agrees to
immediately remove any of Company's employee(s) or agent(s) who's
performance is unsatisfactory under this Agreement and replace such
employee(s) or agent(s) as soon as practicable.
2
<PAGE> 5
8.03. EMPLOYMENT. During the term of this Agreement including any extensions
thereof, each party agrees not to recruit, solicit, or hire any of the
other party's employees who are directly associated or performing
under any Task Order issued under the Agreement. However, former
employees of either party who have left the employ of that party for a
period of six months during the term of this Agreement are not subject
to this provision. Notwithstanding the above, the parties may jointly
agree to waive this provision on a case-by-case basis upon prior
thirty (30) Calendar Day written notice by the party seeking a waiver
from this provision to the other party when it is in the best
interests of either party's employee. Such notice shall be provided to
the representative listed in Section 23 "Notices" below. No single
waiver of this provision shall constitute a continuing or subsequent
waiver.
9.0 SUBCONTRACTING
9.01. In performing its obligations under this Agreement, Company may engage
subcontractors and other third parties ("Subcontractor(s)"). Company
shall require all Subcontractors, as a condition to their engagement,
to agree to be bound by provisions substantially identical to those
included in this Agreement, specifically those relating to the
indemnification of NBSI and NBSI Affiliates, insurance requirements,
treatment of Confidential Information, and Security. Company shall
notify NBSI in writing of its intent to engage a Subcontractor. The
engagement of a Subcontractor by Company shall be subject to NBSI's
prior written consent and shall not relieve Company of any of its
obligations under this Agreement.
10.0 ORDERING OF SERVICES
10.01. (a) All products and Services to be purchased by NBSI hereunder
shall be made pursuant to Task Orders issued by NBSI to Company. The
terms and conditions this Agreement shall control all Task Orders
issued under of this Agreement, and no terms or conditions contained
in the Task Orders (other than the specific delivery instructions)
shall be of any force or effect.
(b) Each Task Order shall have a detailed statement of work
describing the services ordered by that Task Order, number of labor
hours, estimated direct costs and total ceiling amount of the Task
Order. Each Task Order shall obligate a dollar amount against which
Company shall invoice. Company shall not be required to perform work
that would cause the not-to-exceed amount of the Task Order to be
exceeded until the Task Order ceiling amount is increased by a Task
Order modification. Task Orders become effective when executed by NBSI
and received by Company's contract administrator listed in Section 23
"Notices". In the event NBSI changes its requirements subsequent to
issuance of a Task Order, the Task Order must be modified in writing
and executed by NBSI. Such modification shall be delivered to
Company's contract administrator for Company's execution prior to
Company being obligated to make changes to its performance under a
Task Order(s).
(c) Under each Task Order Company will provide personnel, its own
employees, consultants or employees of its Subcontractors, who satisfy
the minimum qualifications for the corresponding labor category they
will perform under as set forth in Exhibit B of this Agreement. All
hours provided under the Task Order(s) by Company's employees or its
Subcontractors or consultants will be applied to the level of effort
ordered by NBSI, plus or minus 10%. In order to perform under the Task
Order(s) in the most effective manner Company may use more hours of
one labor category and fewer hours of another category as long as
Company does not exceed the ceiling amount of each Task Order.
10.02. NBSI reserves the right to require reasonable changes in the criteria
and/or schedule of Services, consisting of additions, deletions or
modifications. All such changes in Services shall be authorized in
writing and mutually agreed to by both parties referencing this
Agreement.
10.03. All instruments ("Instruments"), such as Contract Task Orders and
invoices and the like used in conjunction with this Agreement shall be
for the sole purpose of defining quantities, prices and a description
of services or products to be provided hereunder, and to this extent
only are incorporated as a part of this Agreement. Any terms and
conditions included in Instruments beyond the purposes of
3
<PAGE> 6
Instrument stated above shall not be incorporated and in no event
shall such Instrument be construed to modify, amend, or alter the
terms of this Agreement.
11.0 NON-DISCRIMINATION
11.01. EQUAL OPPORTUNITY EMPLOYERS. NBSI and Company are equal opportunity
employers and do not discriminate in employment of persons or awarding
of subcontracts because of a persons race, sex, age, religion,
national origin, veteran or handicap status.
11.02. COMPLIANCE. Company is aware of and fully informed of Company's
responsibilities and agrees to the provisions under the following: (a)
Executive Order 11246, as amended or superseded in whole or in part,
and as contained in Section 202 of said Executive Order as found at 41
C.F.R: Section 60-1.4(a)(1-7); (b) Section 503 of the Rehabilitation
Act of 1973 as contained in 41 C.F.R. Section 60-741.4; and (c) The
Vietnam Era Veterans' Readjustment Assistance Act of 1974 as
contained in 41 C.F.R. Section 60-250.4.
12.0 CONFIDENTIALITY
12.01. DEFINITION. When used in this Agreement, the term "Confidential
Information" shall mean this Agreement, all Proprietary Information
(as defined below) and all data, trade secrets, business information
and other information of any kind whatsoever which (a) has been
disclosed to either party, or to which either party has access, in
connection with the negotiation and performance of this Agreement, and
(b) relates to (i) the other party, (ii) in the case of Company, the
NBSI Affiliates and their customers, or (iii) third party vendors or
licensors which have made confidential or proprietary information
available to NBSI or an NBSI Affiliate.
12.02. PROPRIETARY INFORMATION. When used in this Agreement, the term
"Proprietary Information" shall mean all work performed under this
Agreement and all work product resulting from such work, including,
without limitation, all data, designs, software, programs, card decks,
tapes, ideas, concepts, techniques, inventions, proprietary rights,
modifications and enhancements, together with all applicable rights to
patents, copyrights, trademarks and trade secrets.
12.03. NON-DISCLOSURE. Each of the parties on behalf of itself and its
employees, officers, directors, affiliates and agents, hereby agrees
that Confidential Information will not be disclosed or made available
to any third party, agent or employee for any reason whatsoever, other
than with respect to: (a) its employees on a "need to know" basis; (b)
subcontractors and other third parties specifically permitted under
this Agreement, on a "need to know" basis, provided that all such
parties are subject to a confidentiality agreement which shall be no
less restrictive than the provisions of this Section (in favor of NBSI
and NBSI Affiliates and in form and substance satisfactory to NBSI);
(c) independent contractors, agents, and consultants hired by NBSI,
provided that NBSI uses reasonable efforts to cause such parties to
maintain the confidentiality of Company's Confidential Information;
and (d) as required by law or as otherwise permitted by this
Agreement, either during the term of this Agreement or after the
termination of this Agreement, provided that, prior to any disclosure
of either party's Confidential Information as required by law, the
party subject to the requirement shall (i) notify the other party of
all, if any, actual or threatened legal compulsion of disclosure, and
any actual legal obligation of disclosure immediately upon becoming so
obligated, and (ii) cooperate with the other party's reasonable,
lawful efforts to resist, limit or delay disclosure. Nothing in this
Section shall prohibit or limit either party's use of information or
data (a) that can be demonstrated to have been previously known to it,
other than through its relationship with the other party, without a
confidentiality restriction on the use of such information, (b)
independently developed by it, as established by written evidence, (c)
rightfully acquired by it from a third party with full legal right to
disclose such information, (d) disclosed without similar restrictions
by the party that disclosed such Confidential Information pursuant to
this Agreement to a third party, (e) approved for disclosure by the
affected party pursuant to this Agreement, or (f) which becomes part
of the public domain through no breach of this Agreement.
4
<PAGE> 7
12.04. EXCEPTIONS. Nothing in this Section shall prohibit or limit either
party's use of information or data (a) that can be demonstrated to
have been previously known to it, other than through its relationship
with the other party, without a confidentiality restriction on the use
of such information, (b) independently developed by it, as established
by written evidence, (c) rightfully acquired by it from a third party
with full legal right to disclose such information, (d) disclosed
without similar restrictions by the party that disclosed such
Confidential Information pursuant to this Agreement to a third party,
(e) approved for disclosure by the affected party pursuant to this
Agreement, or (f) which becomes part of the public domain through no
breach of this Agreement.
12.05. RETURN OF CONFIDENTIAL INFORMATION. Upon the termination of this
Agreement, or at any time upon the request of the other party, each
party shall return all Confidential Information in the possession of
such party or in the possession of a third party (over which such
party has or may exercise control).
12.06. INJUNCTIVE RELIEF. In the event of any breach of the obligations under
this Section, each party acknowledges that the other party would have
no adequate remedy at law, since the harm caused by such a breach
would not be easily measured and compensated for in damages, and that
in addition to such other remedies as may be available to the other
party, the other party may obtain injunctive relief including, but not
limited to, specific performance.
12.07. PUBLICITY. All media releases, public announcements and public
disclosures by either party, or their employees or agents, relating to
this Agreement or the name of NBSI, any NBSI Affiliate or Company,
including, without limitation, promotional or marketing material, but
not including any announcement intended solely for internal
distribution by the releasing party or any disclosure required by
legal, accounting or regulatory requirements beyond the reasonable
control of the releasing party, shall be coordinated with and approved
by the other party in writing prior to the release thereof.
12.08. SURVIVAL. The provisions of this Section shall survive the term or
termination of this Agreement for any reason.
13.0 SECURITY
13.01. DEFINITION. Company understands that NBSI and NBSI Affiliates operate
under various laws and federal regulatory agencies that are unique to
the security sensitive banking industry, As such, persons engaged by
Company to provide services under this Agreement are held to a higher
standard of conduct and scrutiny than in other industries or business
enterprises. Company understands and acknowledges that its employee(s)
("Employee(s)") shall possess appropriate character, disposition and
honesty conducive to the environment where services are provided under
this Agreement. Company shall, to the extent permitted by law,
exercise reasonable and prudent efforts to comply with the Security
provisions of this Agreement.
13.02. ACCESS. Company shall not knowingly permit an Employee(s) to have
access to the premises, records or data, or to engage in the conduct
of the banking affairs of NBSI or NBSI Affiliates when such
Employee(s): (a) has been convicted of a crime or has agreed to or
entered into a pretrial diversion or similar program in connection
with (i) a dishonest act or a breach of trust, as stipulated under
Section 19 of the Federal Deposit Insurance Act, 12 U.S.C. 1829(a);
and/or (ii) a felony; (b) uses illegal drugs.
13.03 COMPLIANCE. Upon written request from NBSI, Company shall provide
evidence of Company's actions to comply with the above provisions for
its Employee(s).
13.04 NOTIFICATION. NBSI shall notify Company of any act of dishonesty or
breach of trust committed against NBSI or NBSI Affiliates which may
involve an Employee(s) and Company shall notify NBSI if it becomes
aware of any such offense. Following such notice, at the request of
NBSI and to the extent permitted by law, Company shall cooperate with
investigations conducted by or on behalf of NBSI or NBSI Affiliates.
Such cooperation may include access to Company's Employee(s) for
personal
5
<PAGE> 8
interviews related to such investigations. In addition, at the request
of NBSI, Company shall conduct its own investigations into the
activities of said Employee(s), which may include polygraph
examinations when permitted by law and not specifically prohibited by
existing collective bargaining (Union) agreements or state statutes,
with the results of such investigations and all files and records
related thereto being made available to NBSI.
13.05. INTERNAL CONTROLS. Company shall cooperate with the internal operating
controls and security processes of NBSI and NBSI Affiliates where
products and/or services are provided under this Agreement.
14.0 INDEMNIFICATION
14.01. Company shall indemnify, defend, and hold harmless NBSI and the NBSI
Affiliates and their respective officers, directors, employees,
agents, successors and permitted assigns from and against any and all
claims made, or asserted, or threatened by any third party and all
related losses, expenses, damages, costs and liabilities, including
reasonable attorneys' fees and expenses incurred in investigation or
defense, arising out of or related to the following: (a) any act or
omission by Company, its employees and agents or any Subcontractor
engaged by Company in the performance of Company's obligations under
this Agreement or otherwise; (b)any material breach in a
representation, covenant or obligation of Company contained in this
Agreement; (c) any claims that, in using the Products or Services
provided to NBSI under this Agreement, NBSI or an NBSI Affiliate has
infringed the proprietary rights of any third party; or (d) Company's
relationship with its employees, agents or Subcontractors or its
capacity as an employer.
14.02. NBSI shall indemnify, defend, and hold harmless Company and its
respective officers, directors, employees, agents, successors and
permitted assigns from and against any and all claims made, or
asserted, or threatened by any third party and all related losses,
expenses, damages, costs and liabilities, including reasonable
attorneys' fees and expenses incurred in investigation or defense,
arising out of or related to the following: (a) any act or omission by
NBSI, its employees and agents or any Subcontractor engaged by NBSI in
the performance of NBSI's obligations under this Agreement or
otherwise; (1))any material breach in a representation, covenant or
obligation of NBSI contained in this Agreement; or (c) NBSI's
relationship with its employees, agents or Subcontractors or its
capacity as an employer.
15.0 DAMAGES
15.01. CERTAIN RECOVERABLE DAMAGES. Damages recoverable under this Agreement
shall include, without limitation, costs, expenses, losses and
injuries incurred or suffered by: (a) NBSI or an NBSI Affiliate, as a
result of an act, omission, breach, breach of warranty,
non-performance or misrepresentation of Company; or (b) NBSI, on
account of claims made against NBSI by an NBSI Affiliate, or payment
of claims made by NBSI to an NBSI Affiliate, to the extent that such
claims or payments result (directly or indirectly) from an act,
omission, breach, breach of warranty, non-performance or
misrepresentation of Company.
15.02. CONSEQUENTIAL DAMAGES. Neither Company nor NBSI shall be liable for
those consequential damages which consist of lost profits or loss of
goodwill; provided, however, that the limitations set forth in this
Section shall not apply to or in any way limit (a) Company's indemnity
obligations under this Agreement, or (b) Company's liability to NBSI or
an NBSI Affiliate for consequential damages which arise from Company's
gross negligence or willful misconduct.
15.03. ENFORCEMENT EXPENSES. If either party employs an attorney or commences
legal or arbitral proceedings to enforce the provisions of this
Agreement, the prevailing party shall be entitled to recover from the
other, reasonable costs incurred in connection with such enforcement,
including but not limited to, attorney's fees and costs of
investigation and litigation/arbitration.
16.0 INSURANCE
6
<PAGE> 9
16.01. REQUIREMENTS. Company shall, and shall require its Subcontractors to,
secure and maintain, at its own expense, throughout the entire term of
this Agreement, the following insurance and shall furnish to NBSI
certificates evidencing such insurance prior to commencing work. Said
certificates shall contain a provision whereby the policy and/or
policies shall not be canceled or altered without at least thirty (30)
calendar days prior written notice to NBSI.
(a) WORKER'S COMPENSATION/EMPLOYERS' LIABILITY. Worker's Compensation
Insurance which shall fully comply with the statutory
requirements of all applicable state and federal laws and
Employers' Liability Insurance which limit shall be $500,000 per
accident for Bodily Injury and $500,000 per employee/aggregate
for disease. Company and its underwriter shall waive subrogation
against NBSI.
(b) COMMERCIAL GENERAL LIABILITY. Commercial General Liability
Insurance with a minimum combined single limit of liability of
$1,000,000 per occurrence and $2,000,000 aggregate for bodily
injury and/or death and/or property damage and/or personal
injury. This shall include products/completed operations coverage
and shall also include Broad Form Contractual specifically
covering this Agreement. Further, NBSI is to be added as an
Additional Insured on this policy with respect to operations
covered under this Agreement.
(c) BUSINESS AUTOMOBILE LIABILITY. Business Automobile Liability
Insurance covering all owned, hired and non-owned vehicles and
equipment used by Company with a minimum combined single limit of
liability of $1,000,000 for injury and/or death and/or property
damage.
(d) EXCESS COVERAGE. Excess coverage with respect to (A), (B) and
(C) above with a minimum combined single limit of $5,000,000.
(e) FIDELITY BOND. Company shall be responsible for loss to bank
property and customer property, directly or indirectly, from
dishonest acts of its employees in a minimum amount of
$1,000,000. Company shall maintain Fidelity Bond coverage and
NBSI shall be named as "Loss Payee, As Their Interest May
Appear," on this Fidelity Bond.
17.0 MINORITY BUSINESS DEVELOPMENT INITIATIVE
17.01. Company recognizes the NationsBank Minority Business Development
Initiative supporting Minority and Women-Owned Business Enterprises
and is committed, to the maximum extent practicable, participation
with minority and women-owned business enterprises in its
construction, procurement, and professional Services programs.
17.02. DEFINITIONS. For purposes of this Agreement, the following are the
definitions of "Minority-Owned Business Enterprise" and "Women-Owned
Business Enterprise":
(a) "Minority-Owned Business Enterprise" is recognized as a "for
profit" business concern, public or privately owned, which is at
least fifty-one percent (51%) owned, controlled and operated by
one or more "Minority Individuals" who maintain United States
citizenship.
(b) "Minority Individuals" are recognized as Black Americans,
Hispanic Americans, Native Americans (American Indians, Eskimos,
Aleuts, and native Hawaiians), Asian-Pacific Americans, and other
minorities as recognized by the United States Small Business
Administration Office of Minority Small Business and Capital
Ownership Development.
(c) "Women-Owned Business Enterprise" is recognized as a "for profit"
business concern which is at least fifty-one percent (51%) owned,
controlled and operated by women who maintain United Stated
citizenship.
7
<PAGE> 10
(d) To quality as a Minority or Women-Owned Business Enterprise
("M/WBE") under this Agreement, the M/WBE must be certified by an
agency acceptable to NBSI.
17.03. PARTICIPATION.
(a) Company agrees that a minimum spending goal of five percent (5%)
of the total dollar amount of this Agreement shall be provided by
Minority Owned Business Enterprises.
(b) Company agrees that a minimum spending goal of five percent (5%)
of the total dollar amount of this Agreement shall be provided by
Women Owned Business Enterprises.
17.04. Company shall provide NBSI monthly, by the 5th of each calendar month,
a report which specifies the total amounts invoiced by and paid to
such Minority and/or Women Owned Business Enterprises for the Calendar
Month being reported. The report shall be in a format to be mutually
agreed upon by Company and NBSI.
18.0 ADMINISTRATION
18.01. REPRESENTATIVES. Company shall designate an employee and NBSI shall
designate employee(s) ("Representative(s)") to act on each respective
party's behalf with regard to matters arising under this Agreement;
however, such authority does not include the authority to alter or
amend any term, condition, or provision of this Agreement. Thereafter,
either party may change their respective Representative by providing
the other party prior written notice.
18.02. CONSTRUING DOCUMENTS. Any terms and conditions included in purchase
orders, invoices and the like used in conjunction with this Agreement
shall be for the sole purpose of defining quantities, prices and a
description of services or products to be provided hereunder and in no
event shall such be construed to modify, amend, or alter the terms of
this Agreement.
19.0 PRICING/FEES
19.01. FEES. NBSI shall pay Company for Services provided under this
Agreement as set forth in EXHIBIT C hereto,
19.02. TRAVEL. Any travel by Company for the performance of Services under
this Agreement shall be pre-approved by NBSI and reservations shall be
made through NBSI's Travel Department, unless otherwise authorized by
NBSI. Further, all pre-approved travel must be itemized on the monthly
invoices submitted to NBSI and accompanied by supporting
documentation.
19.03. ADDITIONAL FEES. ADDITIONAL FEES. Additional fees for Services not
listed on EXHIBIT C shall be as mutually agreed in writing between
NBSI and Company prior to performance.
19.04. The Service fees listed on EXHIBIT C may not be increased for a period
of twelve (12) months from the date of this Agreement. Thereafter, the
Service fees may only be increased by the mutual written agreement of
NBSI and Company one time only during any twelve (12) month period.
Company shall provide sixty (60) calendar days prior written notice to
NBSI of any proposed price increases. Proposed price increases shall
not exceed five (5%) percent of the current fees or the increase in
the Consumer Price Index (CPI) for the preceding twelve (12) month
period, whichever is less.
20.0 INVOICES/TAXES/PAYMENT
20.01. INVOICES. Invoices are to be submitted by Company monthly, in
duplicate, to the address set forth in the applicable Contract Task
Order. Invoices without reference to this Agreement reference number
or listing Services that were not requested in writing by NBSI will
not be paid but will be returned to Company. The items listed on
Company's invoice must appear in the same sequence as listed on the
Contract Task Order.
8
<PAGE> 11
20.02. ITEMIZED INVOICES. Unless otherwise specified, invoices shall include
and list all applicab1e taxes as a separate item. NBSI shall pay
Company for all Services and applicable taxes invoiced in accordance
with the terms of this Agreement, within thirty (30) calendar days of
the date of receipt of invoice.
20.03. TAXES. NBSI will reimburse Company for all sales, use or excise taxes
levied on amounts payable by NBSI to Company pursuant to this
Agreement, provided that NBSI shall not be responsible for remittance
of such taxes to applicable tax authorities. NBSI shall not be
responsible for any ad valorem, income, franchise, privilege, value
added or occupational taxes of Company. Company shall cooperate with
NBSI's efforts to identity taxable and nontaxable portions of amounts
payable pursuant to this Agreement (including segregation of such
portions on invoices) and to obtain refunds of taxes paid, where
appropriate. NBSI may furnish Company with certificates or other
evidence supporting applicable exemptions from sales, use or excise
taxation.
20.04. COMPLETION OF WORK. NBSI's payments, if any, for Services prior to the
completion of such Services shall not diminish Company's obligations
hereunder and shall not constitute a waiver of NBSI's rights or
remedies hereunder.
21.0 RETENTION OF RECORDS/AUDIT
21.01. Retention of Records. For a period of not less than two (2) years
after the termination of this Agreement, Company shall maintain at no
additional cost to NBSI, in a reasonably accessible location, all
material data, files and records pertaining to its performance under
this Agreement and to charges and costs paid or payable by NBSI under
this Agreement.
21.02. AUDIT. Throughout the term of this Agreement and for two (2) years
thereafter, all of the Company's data, files and records referenced
above may be inspected, audited and copied by NBSI, its duly
authorized agents, representatives or employees or by federal or state
agencies having jurisdiction over NBSI or an NBSI Affiliate, at such
reasonable times as NBSI may determine.
22.0 TERMINATION
22.01. TERMINATION WITHOUT CAUSE. NBSI may terminate this Agreement at any
time by providing Company with thirty (30) calendar days prior written
notice indicating an intent to terminate.
22.02. TERMINATION UPON DEFAULT. In addition to any other remedies available
to either party in law or equity or under this Agreement, upon the
occurrence of a Termination Event (as defined below) with respect to
either party, the other party may immediately terminate this Agreement
by providing written notice of its intent to terminate.
22.03. TERMINATION EVENT. A Termination Event shall be deemed to have
occurred if either party: (a) shall commit a material breach of its
obligations under this Agreement, and the breach shall remain uncured
for a period of thirty (30) calendar days after written notice of the
breach is provided to the other party; (b) shall become insolvent, or
generally unable to pay its debts as they become due, or shall become
the subject of a bankruptcy, conservatorship, receivership or similar
proceeding, or shall make a general assignment for the benefit of its
creditors; (c) shall commit a fraudulent act against the other party;
(d) shall fail to comply with any material law, statute, rule or
regulation applicable to such party.
22.04. Termination of this Agreement, however, shall not preclude Company's
obligation to satisfactorily complete any Services requested under any
Contract Task Order in effect at the time of termination, at the
option of NBSI.
22.05. SURVIVAL. All provisions of this Agreement and related obligations
concerning indemnification, security, examination/audit,
confidentiality and representations and warranties shall survive the
termination of this Agreement.
9
<PAGE> 12
23.0 NOTICES
23.01. All material notices or other communications or notices required under
this Agreement shall be given to the parties in writing as follows:
(a) by registered or certified United States mail, return receipt
requested and postage prepaid to the applicable addresses below, or to
such other addresses as the parties may substitute by written notice
given in the manner prescribed in this Section; (b) by hand delivery,
including courier service delivery, to such addresses; or (c) by
facsimile machine transmission, to the numbers provided below:
If to NBSI: If to Company:
Telecommunications Contracts Department
One Independence Center 505 Huntmar Park Drive
101 N. Tryon Street Herndon, VA 22070
NC1-001-02-07 Telephone No.: 703/736-0193
Charlotte, NC 28255-0001 Facsimile : 703/742-8449
Attn.: Otto Caudell, III
Telephone No.: 704/386-4401
Facsimile: 704/386-8876
- and -
Corporate Contracts & Procurement
127 North Tryon Street, 2nd Flood
NCI-018-02-01
Charlotte, NC 28255
Attn.: Phyllis Warren
Telephone No.: 704/386-8213
Facsimile: 704/386-8213
23.02. RECEIPT. Such notices shall be deemed to have been duly given either
three (3) calendar days after the date of mailing as described above,
or one (1) calendar day after being given to an express courier or
when sent by facsimile and receipt confirmed.
24.0 ASSIGNMENT
24.01. ASSIGNMENT. Neither party may assign this Agreement or any of the
rights or obligations under this Agreement without the prior written
consent of the other party, and any such attempted assignment shall be
void. Notwithstanding the foregoing however, NBSI may assign any of
its rights and obligations under this Agreement to an NBSI Affiliate,
the surviving corporation with or into which NBSI may merge or
consolidate, or an entity to which NBSI transfers all, or
substantially all, of its business and assets and Company may assign
any of Company's rights and obligations under this Agreement to a
Company subsidiary.
24.02. THIRD PARTY BENEFICIARIES. Subject to this Section, this Agreement
shall be binding upon, and inure to the benefit of, the parties and
their respective successors and assigns. Except as specifically set
forth in this Agreement, the parties do not intend the benefits of
this Agreement to inure to any third party, and nothing contained
herein shall be construed as creating any right, claim or cause of
action in favor of any such third party, against either of the parties
hereto.
25.0 ARBITRATION
25.01. BINDING ARBITRATION. Any controversy or claim between or among the
parties hereto shall be determined by binding arbitration in
accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Rules of Practice and Procedure for the
Arbitration of Commercial Disputes of Judicial Arbitration and
Mediation Services, lnc./Endispute, Inc. ("J.A.M.S./Endispute"), and
if
10
<PAGE> 13
J.A.M.S./Endispute is unable or legally precluded from administering
the arbitration, then the American Arbitration Association ("AAA")
will serve.
25.02. JUDGMENTS. Judgment upon any arbitration award may be entered in any
court having jurisdiction. Any party to this Agreement may bring an
action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim to which this Agreement
applies in any court having jurisdiction over such action in the
Governing State set forth herein.
25.03. PROCEDURES. Upon receipt of demand for arbitration from either NBSI or
Company, J.A.M.S./Endispute or AAA as applicable shall use its best
efforts to appoint an arbitrator and notify NBSI and Company of such
appointment within fifteen (15) calendar days and further to commence
arbitration within ninety (90) calendar days. Any NBSI or Company
demand for arbitration shall include detail sufficient to establish
the nature of the dispute and shall be delivered to the other party
concurrent with delivery to J.A.M.S./Endispute or AAA.
25.04. OTHER REMEDIES. Nothing in this Section shall limit the right of
either Company or NBSI to obtain from a court provisional or ancillary
remedies such as, but not limited to, injunctive relief, or the
appointment of a receiver, before, during or after the pendency of any
arbitration proceeding brought pursuant to this Agreement.
26.0 APPLICABLE LAW
26.01. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of North Carolina ("Governing State"). Each
party hereby submits to the jurisdiction of such courts, and waives
any objection to venue with respect to actions brought in such courts
in the Governing State.
27.0 MISCELLANEOUS
27.01. CORRESPONDENCE. Where notice, approval or similar action by either
party is permitted or required by any provision of this Agreement,
such action shall not be unreasonably delayed or withheld.
27.02. COMPLETE AGREEMENT. This Agreement, including EXHIBITs and all
materials attached hereto or referenced herein, constitute the entire
agreement of NBSI and Company with respect to the subject matter of
this Agreement and any agreement(s) between Company and NBSI or any
NBSI Affiliate with respect to the subject matter is hereby superseded
and shall hereafter have no force or effect. Other than those remedies
specifically disclaimed in this Agreement, all remedies set forth in
this Agreement shall be in addition to all other remedies available
under this Agreement or at law or in equity.
27.03. AMENDMENT AND WAIVERS. This Agreement may not be modified, waived or
amended unless mutually agreed to in writing by the parties hereto.
27.04. CAPTION REFERENCES AND HEADINGS. All section headings in this
Agreement are for convenience or reference only and are not intended
to define or limit the scope of any provision of this Agreement.
27.05. SEVERABILITY. If any provision of this Agreement shall be held invalid
for any reason, then such provision shall be severed from the
remaining provisions of this Agreement and shall not affect the
validity or enforceability of the other provisions of this Agreement,
unless the invalidity of any such provision deprives any party of the
economic benefit intended to be conferred by this Agreement.
27.06. WAIVER. Any waiver by either party of any provision of this Agreement
shall not imply a subsequent waiver of that or any other provision,
and any failure to enforce strict performance of any provision of this
Agreement shall not be construed as a waiver or relinquishment to
enforce strict performance in respect to such provision on any future
occasion.
11
<PAGE> 14
27.07. CONSTRUCTION. Notwithstanding the general rules of construction, both
NBSI and Company acknowledge that both parties were given an equal
opportunity to negotiate the terms and conditions contained in this
Agreement, and agree that the identity of the drafter of this
Agreement is not relevant to any interpretation of the terms and
conditions of this Agreement.
27.O8. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which when so executed shall be deemed to be an original.
EXECUTED this 21st day of January, 1997
NBSI: NATIONSBANC SERVICES, INC. COMPANY: NETWORK SOLUTIONS, INC.
BY: /s/BETTY W. LUTHER BY: /s/JAMES M. ULAM
----------------------------------- -------------------------
PRINTED NAME: Betty W. Luther PRINTED NAME: James M. Ulam
OFFICER's TITLE: Vice President TITLE: Director of Contracts
For more information regarding the negotiation and content of this Agreement,
the following persons may be contacted:
FOR NBSI: Phyllis A. Warren FOR COMPANY: James M. Ulam
12
<PAGE> 15
EXHIBIT A
GENERAL CLASSIFICATIONS FOR SERVICES
The scope of work will be defined under each Task Order, and will meet one or
more of the following general classifications:
- Engineering. Engineering support is defined as Network, Systems,
Application, or other Information Technology engineering in which a
professionally developed, technically accurate, cost effective,
solution or product is delivered to NBSI.
- Technical Studies: Technical Studies is defined as research, reviews,
requirements analyses, evaluations, or problem determination and
recommendations that are professionally produced and delivered to
NBSI.
- Operations Support. Operations Support is defined as network, systems,
or platform operations and management in which day-to-day service
objectives and cost versus performance are fundamental objectives and
potential deliverables to NBSI.
- Project Management. Project Management is defined as professional
management of projects or programs where such services as project
planning and scheduling, staff supervision, and progress analysis and
reporting are fundamental objectives and potential deliverables to
NBSI.
NBSI will provide, at its cost, connectivity from the NationsBanc LAN/WAN to
Company's Charlotte office. This connectivity will facilitate coordination and
delivery of project support under this Agreement.
13
<PAGE> 16
EXHIBIT B
JOB CATEGORIES
JOB CATEGORY: NETWORK ANALYST
POSITION DESCRIPTION
This is an entry level position for network analysis and engineering. The
individual must possess a knowledge of network operations functions and
demonstrated skills in analysis and diagnosis of network problems. The
individual shall be experienced with specialized monitoring and diagnostic
equipment and software. The individual may possess skills and training with
particular Network Operating Systems (NOS) or network infrastructure support
equipment, such as Routers, Switches, and Concentrators.
DUTIES RESPONSIBILITIES
- Provide support of the site's physical network, multi-user computer
system LANs including backbone network connections and equipment, or
desktop software and configurations.
- Troubleshoot problems on the site network, passing on all information,
as necessary, to the users of the site network.
- Provide coordination and/or automation of network subscriber requests.
- Provide logistic support to change-control and deployment of new
network equipment and software.
EMPLOYMENT STANDARDS
Individual shall possess an Associates degree or equivalent education and
experience plus four years applicable work experience and/or technical
training. Knowledge and experience with networks to include LAN/WAN, SNA,
and/or telecommunications.
14
<PAGE> 17
EXHIBIT B
JOB CATEGORIES
JOB DESCRIPTION: NETWORK ENGINEER
POSITION DESCRIPTION
This is an intermediate level position for network analysis and engineering.
The individual must possess a basic knowledge of network infrastructure design
and modification and demonstrated skills with analysis, formulation, and
delivery of moderately complex documentation and specifications including
diagrams, technical studies, and cost-benefit analyses in support of their
recommendations. The individual shall possess specialized skills and limited
experience with particular Network architectures, protocols, and standards.
DUTIES AND RESPONSIBILITIES
- Provide technical engineering in support of projects and planning
efforts with objective of delivering cost-effective solutions with
sound, industry-standard approaches.
- Examine and review designs, processes, standards, and technologies for
improvement and innovation, providing appropriate written/oral
feed-back and recommendations.
- Assist in third-level network and network application problem analysis
and trouble-shooting.
EMPLOYMENT STANDARDS
Individual shall possess a BA/BS degree or equivalent education and experience
plus six years applicable work experience and/or technical training. Knowledge
and experience with networks architectures to include LAN/WAN, SNA, and/or
telecommunications. Individual must have knowledge of Internet/Intranet
technologies.
15
<PAGE> 18
EXHIBIT B
JOB CATEGORIES
JOB DESCRIPTION: NETWORK SPECIALIST
POSITION DESCRIPTION
This is a journeyman level position for network analysis and engineering. The
individual must possess a broad knowledge of network infrastructure design and
modification and demonstrated skills with analysis, formulation, and delivery
of highly complex documentation and engineering specifications including
detailed diagrams, technical studies, and cost-benefit analyses in support of
their recommendations. The individual shall possess specialized skills and
experience with a broad base of Network architectures, protocols, and
standards.
DUTIES AND RESPONSIBILITIES
- Provide technical engineering in support of projects and planning
efforts with objective of delivering cost-effective solutions with
sound, industry-standard approaches.
- Examine and review designs, processes, standards, and technologies for
improvement and innovation, providing appropriate written/oral
feed-back and recommendations.
- Conduct or assist with major requirements studies and deliver
recommendations.
- Provide third-level network and network application problem analysis
and trouble-shooting.
- Provide review and guidance on internal network policies and
standards, wherever applicable.
- Provide review and guidance for access to external networks including
the Internet, to assure adherence to any and all applicable policies
and standards.
EMPLOYMENT STANDARDS
Individual shall possess a BA/BS degree or equivalent education and experience
plus six years applicable work experience and/or technical training. Knowledge
and experience with networks to include LAN/WAN, SNA, and/or
telecommunications. Individual must have knowledge and experience with
integration of Internet/Intranet technologies.
16
<PAGE> 19
EXHIBIT B
JOB CATEGORIES
JOB DESCRIPTION: NETWORK CONSULTANT
POSITION DESCRIPTION
This is a journeyman level position for network consulting. The individual must
possess a broad background of knowledge and experience to support integration
and optimization of network technologies and applications. The individual
possesses a broad base of skills and experience with Network architectures,
protocols, and standards. The individual may possess specialized skills in
specific industry-standard networking solutions, such as IP-based or SNA
Networks.
DUTIES AND RESPONSIBILITIES
- Provide technical consulting in support of projects and planning
efforts with objective of delivering cost-effective solutions with
sound, industry-standard approaches.
- Examine and review designs, processes, standards, and technologies for
improvement and innovation, providing appropriate written/oral
feed-back and recommendations.
- Independently conduct or lead major requirements studies and deliver
recommendations.
- Provide third-level network and network-application problem analysis
and trouble-shooting.
- Provide review and guidance on internal network policies and
standards, wherever applicable.
- Provide review and guidance for access to external networks including
the Internet, to assure adherence to any and all applicable policies
and standards.
- Provide project planning and support.
EMPLOYMENT STANDARDS
Individual shall possess a BA/BS degree or equivalent education and experience
plus eight years applicable work experience and/or technical training. An
advanced degree is desirable. Knowledge and experience with networks to include
LAN/WAN, SNA, and/or telecommunications. Individual must have knowledge and
experience with integration of Internet/Intranet technologies.
17
<PAGE> 20
EXHIBIT B
JOB CATEGORIES
JOB DESCRIPTION: ADVISORY NETWORK CONSULTANT
POSITION DESCRIPTION
This is a senior level position for network consulting. Individuals in this
position shall fully participate in complex analysis and design projects. The
individual must possess a broad background of knowledge and experience to
support integration and optimization of network technologies and applications.
The individual shall possess a broad base of skills and experience with Network
architectures, protocols, and standards. The individual shall possess
specialized skills in one or more specific industry-standard networking
solutions, such as IP-based or SNA Networks.
DUTIES AND RESPONSIBILITIES
- Provide technical consulting in support of projects and planning
efforts with objective of delivering cost-effective solutions with
sound, industry-standard approaches.
- Examine and review designs, processes, standards, and technologies for
improvement and innovation, providing appropriate written/oral
feed-back and recommendations.
- Independently conduct or lead major requirement studies and deliver
recommendations.
- Provide third-level network and network-application problem and
analysis and trouble-shooting.
- Provide review and guidance for access to external networks including
the Internet, to assure adherence to any and all applicable policies
and standards.
- Conduct technology studies, reviews, and investigations.
- Provide project planning and support.
- Provide project leadership.
EMPLOYMENT STANDARDS
Individual shall possess a BA/BS degree or equivalent education and experience
plus 10 years applicable work experience and/or technical training. An advanced
degree is desirable. Knowledge and experience with networks to include LAN/WAN,
SNA, and/or telecommunications. Individual must have knowledge and experience
with integration of Internet/Intranet technologies.
18
<PAGE> 21
EXIIIBIT B
JOB CATEGORIES
JOB DESCRIPTION: PRINCIPAL NETWORK CONSULTANT
POSITION DESCRIPTION
This is a mastery level position for network consulting. The individual shall
possess a broad technical and analytical background of knowledge and experience
to support integration and optimization of network technologies and
applications. The individual shall possess a broad base of skills and
experience with consulting services to all areas of the company, including
marketing/business acquisition, current client support, technical staff
development, and strategic planning. The individual shall be capable of
performing independently, as required, and provide team leadership to assigned
technical staff members. The individual shall also interact with senior level
technical and executive staff; both within Network Solutions and with current
potential clients. Individuals in this position are expected to compose and
deliver, orally and in writing, reports and presentations of the highest
professional quality.
DUTIES AND RESPONSIBILITIES
- Provide technical consulting in support of projects and planning
efforts with objective of delivering cost-effective solutions with
sound, industry-standard approaches.
- Examine and review designs, processes, standards, and technologies for
improvement and innovation, providing appropriate written/oral
feed-back and recommendations.
- Independently conduct or lead major requirement studies and deliver
recommendations.
- Provide third-level network and network-application problem analysis
and trouble-shooting.
- Provide review and guidance on internal network policies and
standards, wherever applicable.
- Provide review and guidance for access to external networks including
the Internet, to assure adherence to any and all applicable policies
and standards.
- Conduct technology studies, reviews, and investigations.
- Provide project planning and support.
- Provide project management support.
EMPLOYMENT STANDARDS
Individual shall possess a BA/BS degree or equivalent education and experience
plus ten years applicable work experience and/or technical training. An
advanced is desirable. Knowledge and experience with networks to include
LAN/WAN, SNA, and/or telecommunications. Individual must have knowledge and
experience with integration of Internet/Intranet technologies.
19
<PAGE> 22
EXHIBIT C
NATIONSBANC MASTER CONTRACT TIME AND MATERIAL/LABOR HOUR RATES
------------------------------------------------------------------------------------------------
LABOR CATEGORY DURATION OF LONGER THAN 6
ASSIGNMENT MONTHS
1 HOUR TO 6 MONTHS
------------------------------------------------------------------------------------------------
PRINCIPAL NETWORK CONSULTANT $173 $138
--------------------------------------------------------------------------------------
ADVISOR NETWORK CONSULTANT $158 $126
--------------------------------------------------------------------------------------
NETWORK CONSULTANT $143 $114
--------------------------------------------------------------------------------------
NETWORK SPECIALIST $124 $99
-------------------------------------------------------------------------------------
NETWORK ENGINEER $109 $87
-------------------------------------------------------------------------------------
NETWORK ANALYST $94 $75
-------------------------------------------------------------------------------------
Subject to Section 19.04 of this Agreement, the above listed rates are valid
through December 31, 1999. Material, travel and other direct costs incurred in
the performance of the Agreement shall be reimbursed at cost plus a 5% handling
fee. Lodging and travel arrangements for Company will be made by NBSI. Task
Order modifications which extend the duration of the assignment will not
entitle NBSI to a credit or refund resulting from the change in the hourly
rate. If a Task Order modification shortens the duration of the assignment so
that the effective hourly rate increases, Company is entitled to bill the
higher rate from the date of the modification.
20