Agreement No. 99091401
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Contract No. 989965
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GENERAL SERVICES AGREEMENT
Southern New England Telephone Company (hereinafter "Seller"), agrees to provide Services to SBC Advanced Solutions, Inc., a Delaware corporation (hereinafter "Buyer"), in accordance with the terms and conditions stated herein.
ARTICLE 1. SERVICES
Services as used herein are those required from time to time by Buyer in the course of its business. The Parties understand and agree that the Services provided hereunder are subject to the affiliate transaction accounting rules.
ARTICLE 2. INVOICING
Billing for Services will be rendered on a monthly basis, in arrears. Invoices will be due and payable net thirty (30) days from the invoice date. All late payments will be subject to a late charge fee of 1.50% per month on the unpaid balances.
Buyer shall pay Seller for Services rendered by Seller hereunder regardless of Buyer’s ability or inability to collect charges from its end user(s) for such Service.
ARTICLE 3. TAXES
Any tax or other amount which Seller may be required to pay to or collect for a government agency upon or with respect to the Services rendered hereunder, or the use or delivery of any products or parts thereof on behalf of Buyer, will be billed to Buyer as separately stated charges. In the event Buyer disputes the taxability of an item hereunder, Seller will continue to collect such tax unless and until Buyer provides Seller with documentation authorized and prescribed by the taxing authority, such as a certificate of exemption, relieving Seller from liability for the collection and payment of such tax.
ARTICLE 4. DOCUMENTATION
Each party agrees to keep complete and accurate records pertaining to the Services being performed under this Agreement, and to make such records available to the other party upon request. Upon request, Buyer will provide to Seller such reports and information concerning its operations as may be necessary for Seller to perform its obligations hereunder.
ARTICLE 5. PROVISION OF INFORMATION
Except as provided herein, any specifications, diagrams, sketches, models, examples, tools, computer or other apparatus, programs, software, technical or business information, written, oral or otherwise (all thereinafter collectively referred to as "Information"), furnished by one party (hereinafter referred to as the "Disclosing Party") to the other party (hereinafter referred to as the "Receiving Party") under this Agreement or in contemplation of this Agreement will remain the property of the Disclosing Party. All copies of such information will be returned to the Disclosing Party upon request. Unless such information was previously known to the Receiving Party free of any obligation to keep it confidential, or is subsequently made public by the Disclosing Party, it will be kept confidential by the Receiving Party and used only for the purpose of performing under this Agreement.
It is understood that the Receiving Party may be required to furnish information to judicial, regulatory or administrative bodies. In such an event, the Receiving Party will promptly notify the Disclosing Party of such requirement and will cooperate with the Disclosing Party should the Disclosing Party desire to seek a protective order to prevent the public disclosure of its information.
Contract No. 989965
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ARTICLE 6. COMPLIANCE WITH LAWS
Both parties agree to comply with the provisions of the Fair Labor Standards Act of 1938, as amended, and all other applicable federal and state laws, rules, regulations and codes with which they are obligated to comply in the performance of this Agreement, including the procurement of permits and certificates where needed. Both parties further agree not to discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age or handicap, and to comply with all applicable federal and state laws, orders, rules and regulations on this subject during the performance of this Agreement.
This Agreement shall be subject to any and all applicable federal, state and local laws, regulations, and ordinances, as well as any applicable tariffs. To the extent necessary, the parties agree to amend this Agreement to conform to the requirements of any such laws, regulations, ordinances or tariffs. Upon thirty (30) days advance written notice, SELLER shall have the right to modify the Schedules and/or Pricing Addenda to this Agreement to comply with any regulatory requirements.
All employees or agents of Seller engaged in the performance of this Agreement will be considered solely the employees of Seller and will not be considered employees or agents of Buyer for any purpose whatsoever.
ARTICLE 7. INTERVENING LAW
This Agreement is entered into as a result of private negotiations between the Parties and the incorporation of certain conditions which Seller’s parent has committed to the Federal Communications Commission (“FCC”) as a condition of the merger of Seller’s parent with Ameritech in FCC Docket 98-141 (“Merger Conditions”). Subject to Article 6 above, in the event that any of the rates, terms and/or conditions herein, or any of the laws, regulations or conditions that were the basis or rationale for such rates, terms and/or conditions in this Agreement are invalidated, modified or stayed by any action of any state or federal regulatory or legislative bodies or courts of competent jurisdiction, the affected provision shall be immediately invalidated, modified, or stayed, consistent with the action of the legislative body, court, or regulatory agency upon the written request of either Party. In such event, the Parties shall expend diligent efforts to arrive at an agreement regarding the appropriate conforming modifications to this Agreement.
ARTICLE 8. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the domestic laws of the State of LIST STATE, without regard to conflicts of laws principles.
ARTICLES 97. NOTICES
Any notice, invoice or demand which under the terms of this Agreement or otherwise must or may be given or made by Seller or Buyer, will be in writing and addressed to the respective parties as follows:
To Buyer: SBC Advanced Solutions, Inc.
1010 N. St. Mary's, Room 1407
San Antonio, Texas 78215
To Seller: Southern New England Telephone Company
To be determined
The above addresses may be changed at any time by giving thirty (30) days' prior written notice as provided above.
ARTICLE 108. SEVERABILITY
If any of the provisions of this Agreement are deemed to be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement will be construed as if not containing the particular invalid or unenforceable provision(s), and the rights and obligations of the parties will be construed and enforced accordingly.
ARTICLE 119. ASSIGNMENT
Except as provided in this paragraph, nNeither party may assign its obligations, rights or interests under this Agreement without first obtaining the written approval of the other party hereto; provided that each Party may assign this Agreement to a corporate affiliate or an entity under its common control or an entity acquiring all or substantially all of its assets or equity by providing prompt written notice to the other Party of such assignment or transfer. All obligations and duties of any party under this Agreement will be binding upon all successors-in-interest and assigns of such party.
The construction, interpretation and performance of this Agreement will be governed by the domestic laws of the State of Missouri.
Contract No. 989965
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ARTICLE 120. TERM AND TERMINATION
This Agreement will become effective ten (10) business days following Merger Close of SBC’s Merger with Ameritech (FCC Docket 98-141) or upon thirty (30) days advance written notice by Buyer to Seller, whichever is later (“the Effective Date”), and shall expire one (1) year following the Effective Date or September 30, 2000, whichever is earlier. when executed by both parties and will continue in full force and effect until
Either Party may terminated this Agreement at any time by providing the other Party with by either party upon thirty (30) days' prior written notice. Termination of this Agreement will also constitute termination of all Schedules attached hereto then in effect. On the other hand, an individual Schedule may be terminated by either party hereto, as provided in such Schedule, without terminating this Agreement in its entirety or any other Schedules then still in effect.
ARTICLE 131. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all prior oral or written understandings between the parties pertaining to the subject matter hereof and constitute the entire agreement between them. This Agreement may not be modified or amended, except by a written instrument signed by both parties.
ARTICLE 142. PUBLICITY
Buyer agrees not to advertise, or otherwise make known to others, any information regarding this Agreement. Subject to the Merger Conditions, Buyer further agrees not to use in any advertising or sales promotion, press releases or other publicity matters any endorsements, direct or indirect quotes, or pictures implying endorsement by Seller or any of its employees without Seller's prior written approval. Buyer will submit to Seller for written approval, prior to publication, all publicity matters that mention or display Seller's name and/or marks or contain language from which a connection to said name and/or marks may be inferred or implied.
Seller shall not be obligated by this Agreement to provide Buyer with branding of any kind including, but not limited to, technical apparel, vehicles, forms; nor shall Seller’s technicians carry and provide to Buyer’s end-users Buyer-branded business cards or printed materials. In performing Services for Buyer under this Agreement, Seller’s technicians shall wear standard Seller work apparel, drive Seller vehicles and carry any other appropriate materials of Seller.
ARTICLE 153. LIMITATION OF LIABILITY
SELLER WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ATTRIBUTABLE TO OR RESULTING FROM ITS PERFORMANCE HEREUNDER. In no event will Seller’s liability for damages caused by its failure to supply material or perform services in a proper or timely manner exceed the amount paid by Buyer to Seller for such materials or services.
ARTICLE 16. INDEMNIFICATION
Each Party agrees to indemnify, defend and hold harmless the other Party (including its officers, directors, principals, assigns, successors, affiliates, agents and employees) from and against any and all liability, loss, damage, claim or expense (including Attorneys’ Fees and court costs), incurred by the other in connection with any claim, demand or suit for damages, injunction or other relief to the extent it is caused by or results from the gross negligence or willful misconduct of the Indemnifying Party (including any of its agents or subcontractors).
The Indemnifying Party agrees to defend any suit brought against the Indemnified Party for any loss identified in this Section. The Indemnified Party agrees to notify the Indemnifying Party promptly in writing of any written claims, lawsuits or demands for which the Indemnifying Party may be responsible under this Agreement. The Indemnified Party shall cooperate in every reasonable way to facilitate defense or settlement. The Indemnifying Party shall have the right to control and conduct the defense and settlement of any action or claim subject to the consultation of the Indemnified Party. The Indemnifying Party shall not be responsible for any settlement unless the Indemnifying Party approved such settlement in advance and agrees to be bound by the settlement agreement.
ARTICLE 17. INSURANCE
At all times during the term of this Agreement, each Party shall keep and maintain in force at each Party’s expense all insurance required by law (e.g., workers’ compensation insurance) as well as general liability insurance for personal injury or death to any one person, property damage resulting from any one incident, and automobile liability with coverage for bodily injury and for property damage. Upon request from the other Party, each Party shall provide to the other Party evidence of such insurance (which may be provided through a program of self-insurance).
ARTICLE 18. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR THE EQUIPMENT IT PROVIDES UNDER OR CONTEMPLATED BY THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES WHICH ARISE FROM TRADE, CUSTOM, OR USAGE, AND WARRANTIES OF NON-INFRINGEMENT.
ARTICLE 19. RISK OF LOSS
Buyer shall bear the risk of loss, theft or damage to any feeder facilities, ISP equipment or other materials or items furnished to Seller by Buyer for installation under the terms of this Agreement, except such loss or damage as may be caused solely by the gross negligence or willful misconduct of Seller.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate original counterparts as of the date first set forth below.
SBC Advanced Solutions, Inc. Southern New England Telephone Company
BY:______BY:______
TITLE:______TITLE: ______
DATE:______DATE:______