Preview of our top selling Transition Services Agreement
Genuity - Form Of Agreement For It Transition Services
EXHIBIT 10.10
AGREEMENT FOR IT TRANSITION SERVICES
This Agreement for IT Transition Services is made between GTE Service Corporation, a New York corporation, with offices at 1255 Corporate Drive, Irving, Texas 75038 and its affiliates (individually and collectively "GTE") on one hand, each only with respect to the Services (defined below) it provides, and Genuity Solutions Inc., a Delaware corporation, with offices at 3 Van de Graaff Drive, Burlington, Massachusetts 01803 ("GENUITY"), and its subsidiaries and successors in interest, on the other hand.
Whereas, GENUITY and GTE each will procure from the other under this Agreement information technology services, with the services defined in individual Statements of Work, and the ownership and rights in intellectual property deliverables defined in the Statements of Work being apportioned between the parties. In consideration of the mutual terms and conditions of this Agreement, the parties agree as follows:
1. GENERAL.
(a) Services. Each of GTE and GENUITY (each a "Service Recipient", as the
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case may be) desires to obtain certain information technology
transitional services on a non-exclusive basis from the other party
hereto or one of its affiliate companies (each a "Service Provider",
as the case may be) under the terms and conditions of this agreement
and statements of work ("Statements of Work") entered into by the
parties (this agreement and all attached Statements of Work are
collectively referred to as the "Agreement"), and Service Provider
shall provide to Service Recipient such information technology
transitional services (individually and collectively, "Services"). If
there is any conflict or inconsistency between the terms and
conditions of a Statement of Work and the terms and conditions of this
Agreement (excluding for this purpose the Statements of Work), the
terms and conditions of the Statement of Work shall control.
(b) Statements of Work - Generally. Each of the Statements of Work entered
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into by the parties shall: (i) refer expressly to this Agreement; (ii)
designate the date as of which the provisions of the Statement of Work
shall be effective and, if applicable, the term or period of time
during which Service Provider shall perform Services, provide
resources or otherwise discharge its obligations as specified in the
Statement of Work if different from the term set out in this Agreement
(excluding for this purpose the Statement of Work); (iii) describe the
Services to be performed, Work Product (as defined herein) to be
delivered, resources to be provided or obligations to be discharged by
Service Provider pursuant to the Statement of Work; (iv) describe the
obligations of Service Recipient related to the Statement of Work,
including any facilities, equipment,
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personnel and tasks or other support to be provided or performed by
Service Recipient; (v) specify the payments to be made to Service
Provider under the Statement of Work, or, if applicable, the basis on
which such payments shall be computed; and (vi) specify any other
terms and conditions appropriate to the Services to be performed and
the obligations of the parties. If there is any conflict or
inconsistency between the terms and conditions of a Statement of Work
and the terms and conditions of this Agreement (excluding for this
purpose the Statement of Work), the terms and conditions of the
Statement of Work shall control. Service Recipient may request
services through a letter, email, or other written or electronic
medium. The request for services will outline the nature and scope of
the services requested. Within thirty (30) days after receipt of the
request for services, Service Provider shall provide a high-level
estimate of the activities to be performed along with an estimate of
the number of hours required to perform each of the activities.
Preparation of the high level estimate shall be charged at the hourly
rates then in effect between Service Provider and Service Recipient,
or if no rate is specified, at Service Provider's then-current rate
for such activity. Service Recipient shall have thirty (30) days to
notify Service Provider if Service Recipient desires Service Provider
to prepare a Statement of Work. Unless otherwise specified in a
particular Statement of Work, the Statement of Work shall be issued on
a time and materials basis and shall include an estimate of the hours
needed to complete the Statement of Work and the hourly rates
applicable to the services being provided. All services are
contemplated to be performed at Service Provider's location during
normal business hours, excluding weekends and Service Provider's
holidays. If a Statement of Work requires travel to Service
Recipient's location or another location at the request of Service
Recipient, Service Provider shall bill travel time incurred by Service
Provider's employees at the hourly rate(s) specified in the Statement
of Work. Service Provider shall issue an invoice monthly for such
services in accordance with this Agreement. For any Statement of Work
for which GTE's GTEDS affiliate is a Service Provider hereunder, the
terms and conditions contained in Attachments 1 and 2, entitled
"Service Level Agreement for Application Enhancement and Development"
and "SAP R/3 Service Level Agreement", respectively, shall apply to
such Statement of Work.
(c) Order of Precedence. In the event of any conflict or inconsistency
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between the terms and conditions of any Statement of Work, this
Agreement, the Software License Agreement among the parties and of
even date hereof, the Software Development and Technical Services
Agreement among the parties and of even date hereof, the Intellectual
Property Ownership and Cross License Agreement among the parties and
of even date hereof, and any other agreement among the parties hereof,
the terms and conditions shall take precedence in the following order:
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(i) Statement of Work;
(ii) This Agreement (excluding for this purpose the Statements of
Work);
(iii) Software License Agreement or the applicable software license
agreement which is directed to the software for which the
Services are provided; and
(iv) Software Development and Technical Services Agreement.
(d) Milestones, Phases and Timing; Changes. Each of the Statements of Work
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shall set out, if applicable, milestones and phases of the work. When
phases are specified, Service Provider shall not be obligated to
proceed with work on the next phase until Service Recipient has
provided written authorization to proceed. If Service Recipient has
not provided Service Provider with written authorization to proceed on
a specific phase, and it is necessary to commence or complete such
phase in order to meet any milestones specified in the Statement of
Work, Service Provider shall not have any obligations with respect to
such milestones and the Statement of Work shall be deemed to be
modified accordingly. The Statement of Work may be modified by mutual
written agreement, signed by both parties. No verbal changes to the
Statement of Work are permitted.
(e) Performance. All Services shall be performed in accordance with the
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terms and conditions of this Agreement and the requirements, order of
performance and delivery dates specified in each Statement of Work.
Service Provider shall devote such time, efforts and resources to the
performance of Services as are necessary to accomplish the tasks
specified in any Statement of Work. The Service Provider may call upon
the expertise and/or assistance of its affiliates, subcontractors or
consultants in the performance of such Services, provided that Service
Provider shall obtain the prior written consent of Service Recipient
in the event it desires to use outside subcontractors or consultants.
If a Statement of Work specifies that some or all of the work will be
done by a subcontractors or consultant, no additional approval shall
be required.
(f) Third Party Software Licenses. The Service Recipient acknowledges that
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Service Provider and its affiliates may be required to use certain
software licensed to GTE by third parties to provide Services pursuant
to this Agreement. If any licensor of such third party software
requires the payment of any consideration to permit Service Provider
to use the vendor's software in order to perform its obligations under
this Agreement,
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Service Provider shall provide Service Recipient with thirty (30) days
prior written notice of such additional consideration. Service
Recipient shall have the option to (i) procure its own license to such
software at its own expense, or (ii) authorize Service Provider to
incur such required additional consideration on its behalf and at
Service Recipient's expense. In the event that Service Recipient does
not agree to either (i) or (ii) above, Service Provider shall not be
required to provide the Services for which such third party licenses
are required. If the third party requires Service Recipient to secure
rights in such third party software to receive the Services or to use
the result of such Services, Service Recipient shall be responsible
for securing such rights at its own cost and expense.
(g) Service Recipient Provided Software. If Service Recipient elects to
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use Service Provider Hardware (as defined below) to operate and run
Service Recipient Provided Software (also as defined below) pursuant
to a Statement of Work, Service Recipient shall obtain all licenses
necessary for use of such software, pay any associated fees negotiated
with Service Provider for running such software for Service Recipient
and pay any costs related to obtaining required consents needed by
Service Provider to use such software for Service Recipient's benefit.
Service Recipient shall be responsible for all costs associated with
Service Recipient provided third party software. Service Recipient
agrees to indemnify and hold Service Provider harmless against any
loss, cost, claim, liability, damage, expense (including reasonable
attorney's fees), or demand by or on behalf of any person, firm,
corporation, or governmental authority resulting from or arising out
of Service Recipient's alleged violation of such third party software
rights, provided that prior to agreement on a Statement of Work, the
parties shall have worked diligently together to identify all license
rights needed by Service Recipient hereunder and to confirm that
Service Provider has the right to perform the services hereunder.
"Service Provider Hardware" shall mean the central processing units
and peripheral equipment installed in a Service Provider's facility
and utilized by Service Provider to provide Services described in any
Statement of Work. The term Service Provider Hardware does not include
circuit equipment from Service Recipient's site to Service Provider's
facility, terminals, controllers, or telecommunications equipment at
Service Recipient's site(s) required to enable Service Recipient to
utilize Service Provider's Services, all of which are Service
Recipient's responsibility. "Service Recipient Provided Software"
shall mean software owned or licensed by Service Recipient which is
installed an operated at a Service Provider facility pursuant to a
Statement of Work.
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2. COMPENSATION AND BILLING.
(a) Invoices. The charges for the Services shall be set out in the
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applicable Statement of Work. Service Provider shall invoice Service
Recipient for Services in accordance with the payment schedule set
forth in the applicable Statement of Work. Each invoice shall
reference this Agreement and the applicable Statement of Work. The
invoices shall be itemized to show the details as to all billed items.
Payments shall be made within thirty (30) days from the date each
invoice is received by Service Recipient.
(b) Sales, Use and Other Taxes. In addition to the charges for Services,
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Service Recipient shall pay Service Provider an amount equal to any
sales, use, privilege, gross revenue, excise, or any other tax (except
income and franchise taxes), as well as any assessments or duties with
respect to the Services lawfully levied by a duly constituted
governmental authority and for which Service Provider is required, by
law, to collect from Service Recipient. In addition each party shall
be responsible for all real and personal property taxes imposed on
software and equipment owned by the respective parties on January 1 of
every year. If Service Recipient determines that any Services are
exempt from a tax, Service Recipient must provide Service Provider a
properly completed exemption certificate, for each jurisdiction for
which Service Recipient is claiming an exemption, before Service
Provider will exclude the respective tax from amounts charged to
Service Recipient. Service Recipient will not deduct any tax amount
from remittances to Service Provider until a properly completed
exemption certificate, for all jurisdictions for which Service
Recipient is claiming an exemption, has been provided to Service
Provider.
(c) Expense Reimbursement. Service Recipient shall reimburse Service
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Provider for reasonable expenses for travel, meals and lodging
incurred by Service Provider in the performance of its obligations
under this Agreement. Any such charges shall be in compliance with
Service Provider's employee expense policies. There shall be no mark-
up of such expense charges. Service Provider shall maintain
documentation of expenses incurred, and shall provide copies of
invoices of $100 or more upon Service Recipient's request. Service
Provider shall bill Service Recipient monthly for expenses as they
accrue. The parties will specify any limitation on the reimbursement
of expenses in the applicable Statement of Work. It is acknowledged
and agreed that if Service Provider is reasonably required to incur
expenses beyond such limitation in order to provide the Services, then
Service Provider is excused from performing such Services until said
expense limitation is removed or changed as mutually agreed, provided
that Service Provider promptly notifies Service Recipient of the need
to exceed the limitation.
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(d) Records. Service Provider shall maintain complete and accurate records
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in a form consistent with generally accepted accounting practices, to
substantiate Service Provider charges. Service Provider shall retain,
and make available upon request, such records for a period of three
(3) years from the date of invoice for Services. Service Recipient and
its authorized agents, subject to obligations of confidentiality as
set forth in this Agreement, shall have access to such records upon
prior written request during normal business hours during the term of
this Agreement and during the respective periods in which Service
Provider is required to maintain such records pursuant to this
subsection 2(d). Access to the records shall be made at the location
where such records are normally maintained.
(e) Late Payment. Late payment charges may be imposed by Service Provider
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at the rate of 1 1/2% per month (18%) per year). Interest shall not be
payable by Service Recipient for amounts on invoices which it has
disputed in good faith provided that Service Recipient pays the
applicable amount due, if any, within thirty (30) days of the
resolution of the dispute. With respect to disputed invoices,
undisputed amounts must be paid within thirty (30) days from the date
of the invoice. Service Provider must be advised in writing of any
amounts disputed by Service Recipient and the basis for the dispute
within ten (10) days from the date of the invoice or the entire
invoice must be paid.
3. TERM.
This Agreement is effective as of the date of closing of the initial public
offering of Genuity Inc. shares of stock ("Effective Date") and shall
expire the earlier of: (a) one (1) year after the Effective Date or (b)
expiration or termination of all of the Statements of Work under this
Agreement unless earlier terminated under Section 24(a), (b) or (c) of this
Agreement. In the event of any termination or expiration, Genuity agrees to
reasonably cooperate in transitioning the work to any successor service
provider, and upon GTE's request and at its expense, Genuity shall use
commercially reasonable efforts to secure GTE's continued use of applicable
third party licenses. GTE shall use its best efforts to provide all items,
services and personnel necessary to effectuate and ensure a smooth and
timely transition for Genuity from dependence on Services under each
Statement of Work to standalone ability to perform such Services itself or
in conjunction with third parties. Both parties shall make appropriate
resources available in connection with such transition, and any such steps
taken by GTE shall be accomplished prior to the expiration of the term of
this Agreement.
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4. ACCEPTANCE.
(a) Acceptance. Each Statement of Work shall specify the criteria, if any,
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that Service Provider must meet in order for the Work Products
described in the Statement of Work to be accepted by Service
Recipient. It may also specify a test plan, and such other information
as Service Provider and Service Recipient mutually deem appropriate
and the period of time, if any, that Service Recipient shall have to
review such Work Product and provide notice of acceptance or rejection
to Service Provider. Failure to accept or reject such Work Product
within the specified period of time or the commercial use of such Work
Product by or for the benefit of Service Recipient shall be deemed to
be acceptance.
(b) Rejection and Revision. If Service Recipient rejects any Work Product,
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it shall specify in reasonable detail in writing the reasons for
rejection and the requirements for revision. If the notice of
rejection is not sufficiently detailed to allow Service Provider to
determine why such Work Product is unacceptable, Service Provider may
request in writing that Service Recipient provide sufficient
additional information. If Service Provider and Service Recipient have
joint responsibility for the Work Product and the Work Product
requires revision, Service Provider shall assist Service Recipient in
making revisions necessary for the Work Product to meet the acceptance
criteria within a period of time that is reasonable under the
circumstances. If Service Provider has sole responsibility for the
Work Product, then it shall make the necessary revisions within a
period of time that is reasonable under the circumstances.
5. CONFIDENTIAL INFORMATION.
(a) Confidentiality. In the course of requesting and performing Services
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pursuant to this Agreement, each party may receive or acquire from the
other information or data pertaining to specifications, drawings,
sketches, models, samples, computer programs, methods, concepts, know-
how, techniques, processes, and other technical or business
information that the other party desires to protect against
unauthorized use or further disclosure. Unless otherwise expressly set
forth in a Statement of Work, for purposes of this Agreement,
"Confidential Information" shall mean: (i) any information in written,
other tangible or electronic form which is labeled by the disclosing
party as "confidential", "proprietary" or with a legend of similar
import; (ii) software in any form (including related documentation),
whether or not labeled in accordance with the preceding; (iii)
Services and Work Products provided pursuant to this Agreement, with
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the ownership of and proprietary interest therein being defined herein
or in the applicable Statement of Work; or (iv) information orally
disclosed and identified as confidential at the time of such
disclosure which is summarized in writing within thirty (30) days of
such disclosure. Each party shall remain the exclusive owner of its
Confidential Information.
(a) Use of Confidential Information. The Confidential Information of the
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disclosing party may be used by the receiving party only for the
performance or use of Services or Work Products to be provided
pursuant to this Agreement and may only be disclosed to those
employees, subcontractors or agents of the receiving party who have a
need to know in order to perform or use Services or Work Products
pursuant to this Agreement. Except and to the extent set forth in
subsection 6(c), the receiving party may not disclose Confidential
Information of the other party to any other person, entity, or the
public without the prior written consent of the disclosing party.
However, such Confidential Information may be disclosed by the
receiving party without the necessity of prior written consent, to the
receiving party's subcontractors or consultants who require access to
such Confidential Information to perform or use the Services under
this Agreement, provided such persons have entered into written
agreements which contain obligations of nondisclosure and nonuse no
less restrictive than set forth in this Section 6. It is agreed that
such written agreements shall be enforceable by the disclosing party.
(b) Exceptions. The obligations in subsection 6(b) shall not apply to that
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portion of any information received from the disclosing party which
is: lawfully in the receiving party's possession, with no restriction
on use or disclosure, prior to its acquisition from the disclosing
party; received in good faith by the receiving party, with no
restrictions on use or disclosure, from a third party not subject to
any confidential obligation to the disclosing party; now or later
becomes publicly known through no breach of confidential obligation by
the receiving party; released by the disclosing party to any other
person, firm or entity (including governmental agencies or bureaus)
without restriction on use or disclosure; or independently developed
by or for the receiving party without any reliance on or use of
Confidential Information of the disclosing party. The foregoing
exceptions shall not apply to software in any form.
(d) Disclosure and Notification. If a receiving party receives a request
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to disclose any Confidential Information of the disclosing party
(whether pursuant to a subpoena, an order issued by a court or other
governmental authority of competent jurisdiction or otherwise) and, on
advice of legal counsel, determines that disclosure is required under
applicable law, the receiving party agrees that, prior to disclosing
any Confidential Information of the disclosing party, it shall (i)
notify the disclosing party of the
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existence and terms of such request or advice, (ii) cooperate with the
disclosing party in taking legally available steps to resist or narrow
any such request or to otherwise eliminate the need for such
disclosure at the disclosing party's sole expense, if requested to do
so by the disclosing party, and (iii) if disclosure is required, it
shall be the obligation of the disclosing party to use its
commercially reasonable efforts to obtain a protective order or other
reliable assurance that confidential treatment shall be afforded to
such portion of the Confidential Information of the disclosing party
as is required to be disclosed.
(e) Continuing Obligation. The obligation of non-disclosure and non-use
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with respect to Confidential Information of the disclosing party shall
survive termination of this Agreement and shall continue for a period
of 5 years thereafter, provided that the obligations of non-disclosure
and non-use shall continue in perpetuity for software included in
Confidential Information.
6. OWNERSHIP AND LICENSE OF WORK PRODUCTS.
(a) Ownership. Unless expressly provided otherwise in the applicable
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Statement of Work, the ownership of any and all right, title and
interest in and to work products (including without limitation:
computer programs and documentation; photographs; logos; drawings;
artistic and graphical works; reports; data; information; and other
works of authorship) made by Service Provider, or its suppliers or
contractors, during performance of Services for Service Recipient in
accordance with the applicable Statement of Work (all such works
herein "Work Products"), shall be determined in accordance with the
terms and conditions of the Software Development and Technical
Services Agreement relating to ownership of intellectual property,
with those terms and conditions being applied to any Statement of Work
issued hereunder and being incorporated herein in their entirety by
this reference.
(b) License. Unless expressly provided otherwise in the applicable
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Statement of Work:
(1) If Service Provider owns any Work Products, any license granted
to Service Recipient by Service Provider in or to any such Work
Products shall be on the same terms and conditions as the license
grant by GTE to GENUITY contained in the Software License
Agreement, with such terms and conditions being incorporated
herein in their entirety by this reference.
(2) If Service Recipient owns any Work Products, and subject to
Service Provider's obligations with respect to Service
Recipient's
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Confidential Information, Service Provider shall retain a non-
exclusive, perpetual, world-wide, royalty-free license to use any
such Work Product for its ordinary and usual business purposes.
7. DISPUTE RESOLUTION.
(a) General. Except as provided in subsection 7(d) below, any controversy
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or claim arising out of or relating to this Agreement, or the breach
thereof, shall attempt to be settled first, by good faith efforts of
the parties to reach mutual agreement, and second, if mutual agreement
is not reached to resolve the dispute, by final, binding arbitration
as set out in subsection 7(c) below.
(b) Initial Resolution. A party that wishes to initiate the dispute
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resolution process shall send written notice to the other party with a
summary of the controversy and a request to initiate these dispute
resolution procedures. Each party shall appoint a knowledgeable,
responsible representative from the company who has the authority to
settle the dispute, to meet and negotiate in good faith to resolve the
dispute. The discussions shall be left to the discretion of the
representatives, who may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence among the representatives for purposes
of these negotiations shall be treated as Confidential Information
developed for purposes of settlement, shall be exempt from discovery
and production, and shall not be admissible in the arbitration
described above or in any lawsuit pursuant to Rule 408 of the Federal
Rules of Evidence. Documents identified in or provided with such
communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible, be
admitted in evidence in the arbitration or lawsuit. The parties agree
to pursue resolution under this subsection 7(b) for a minimum of sixty
(60) days before requesting arbitration.
(c) Arbitration. If the dispute is not resolved under the preceding
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subsection 7(b) within sixty (60) days of the initial written notice,
either party may demand arbitration by sending written notice to the
other party. The parties shall promptly submit the dispute to the
American Arbitration Association for resolution by a single neutral
arbitrator acceptable to both parties, as selected under the rules of
the American Arbitration Association. The dispute shall then be
administered according to the American Arbitration Association's
Commercial Arbitration Rules, with the following modifications: (i)
the arbitration shall be held in a location mutually acceptable to the
parties, and if the parties do not agree, the location shall be New
York City; (ii) the arbitrator shall be licensed to practice law;
(iii) the arbitrator shall conduct the arbitration as if it were a
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bench trial and shall use, apply and enforce the Federal Rules of
Evidence and Federal Rules of Civil Procedure; (iv) except for
breaches related to Confidential Information, the arbitrator shall
have no power or authority to make any award that provides for
consequential, punitive or exemplary damages; (v) the arbitrator shall
control the scheduling so that the hearing is completed no later than
60 days after the date of the demand for arbitration; and (vi) the
arbitrator's decision shall be given within 5 days thereafter in
summary form that states the award, without written decision, which
shall follow the plain meaning of this Agreement, the relevant
documents, and the intent of the parties. Judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction over the parties. Each party to the dispute shall bear
its own expenses arising out of the arbitration, except that the
expenses of the facilities to conduct the arbitration and the fees of
the arbitrator shall be shared equally by the parties.
(d) Injunctive Relief. The foregoing notwithstanding, each party shall
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have the right to seek injunctive relief in an applicable court of law
or equity independent of any resolution of the dispute in accordance
with the foregoing.
8. RELATIONSHIP OF PARTIES.
(a) Independent Contractors. In providing any Services pursuant to this
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Agreement, Service Provider and its affiliates are independent
contractors and not agents or representatives of Service Recipient.
Persons furnished by the respective parties shall be solely the
employees or agents of such parties, respectively, and shall be under
the sole and exclusive direction and control of such parties. They
shall not be considered employees of the other party or parties for
any purpose. Each party shall also be responsible, respectively, for
payment of taxes, including federal, state, and municipal taxes,
chargeable or assessed with respect to its employees or agents, such
as social security, unemployment, worker's compensation, disability
insurance and federal and state income tax withholding.
(b) No Performance. Neither party undertakes by this Agreement or any
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Statement of Work to conduct the business or operations of the other
party. Nothing contained in this Agreement or any Statement of Work is
intended to give rise to a partnership or joint venture between the
parties or to impose upon the parties any of the duties or
responsibilities of partners or joint venturers.
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9. FORCE MAJEURE.
If performance of any Services under this Agreement is prevented,
restricted or interfered with by reason of acts of God, wars, revolution,
civil commotion, acts of public enemy, embargo, acts of government in its
sovereign capacity, labor difficulties, including without limitation,
strikes, slowdowns, picketing or boycotts, communication line failures,
power failures, or any other circumstances beyond the reasonable control
and not involving any fault or negligence of the party affected, the party
affected, upon giving prompt notice to the other party, shall be excused
from such performance on a day-to-day basis during the continuance of such
prevention, restriction, or interference (and the other party shall
likewise be excused on a day-to-day basis during the same period, from
performance of its obligations which are dependent upon or affected by such
nonperformance), provided, howev...
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