MANAGED NETWORK AGREEMENT
This Managed Network Agreement is effective as of the last date signed
below- by and between Sprint Communications Company L.P., with offices at 13221
Woodland Park Road, Herndon, Virginia 22071, and Bridge Data Company, with
offices at 717 Office Parkway, St. Louis, Missouri 63141.
WHEREAS, Sprint wishes to provide Managed Network products and services
and related support to Bridge, and Bridge wishes to purchase such products and
services from Sprint; and
WHEREAS, the parties have agreed to enter into a Managed Network
Agreement by and between them dated as of the last date signed below (the
"Agreement").
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Scope.
Bridge agrees to order, and Sprint hereby agrees to provide certain
Products and Services at Installation Sites to be designated by Bridge. Sprint
shall install, manage and maintain the Products and Services at each
Installation Site in accordance with the terms of this Agreement, including the
Performance Specifications. The scope of work to be performed by Sprint under
this Agreement shall be as set forth in Attachment A. Subject to Section 9 below
(Minimum Commitment), the fact that a Product or Service is described herein
does not obligate Bridge to purchase such Product or Service from Sprint under
this Agreement.
2. Contract Documents and Definitions.
(a) The Agreement shall consist of this Managed Network Agreement by
and between Bridge and Sprint, including all attachments referenced in and
appended to this Agreement and made a part hereof (the "Attachments"). This
Agreement shall be interpreted wherever possible to avoid conflict between the
Sections hereof and the Attachments, provided that if such a conflict shall
arise, the Sections of this Agreement shall control. The Attachments are:
Attachment A Scope of Work
Attachment B Rates and Charges
Attachment C Site Preparation Requirements
Attachment D Installation, Management and Maintenance
Services
Attachment E Performance Specifications
Bridge/Sprint Confidential -1- January 30, 1995
(b) Whenever used in this Agreement, the words and phrases listed below
shall have the meanings given below, and all defined terms shall include the
plural as well as the singular. Unless otherwise stated, the words "herein,"
"hereunder" and other similar words refer to this Agreement as a whole and not
to any particular Section or other subdivision. The words "include" and
"including" shall not be construed as terms of limitation.
"Affiliate" of a party means the party, any entity that is directly or
indirectly controlling, controlled by or under common control with the party,
and the directors, officers employees and agents of all of them, when acting in
their corporate capacity.
"Bridge" means Bridge Data Company and those of its Affiliates
purchasing Products and Services from Sprint hereunder.
"Chronic Service Interruption" means an "Interruption" as defined below
which occurs three (3) or more times, each incident lasting thirty (30) or more
minutes within three (3) consecutive calendar weeks.
"Confidential Information" means all information concerning the
business of Bridge, Sprint or any third party doing business with either of them
that may be obtained from any source by Sprint by virtue of its performance
under this Agreement or by Bridge by virtue of its use of the Products and
Services. Such information shall also include the terms of this Agreement (and
negotiations and proposals from one party to the other related directly
thereto), network designs and design recommendations, tools and programs,
pricing, methods, processes, financial data, software, research, development,
strategic plans or related information. All such information disclosed prior to
the execution of this Agreement shall also be considered Confidential
Information for purposes of this Agreement. The network design and configuration
of the Products and Services purchased hereunder, shall be deemed Bridge
Confidential Information, and shall not be deemed Sprint Confidential
Information. Confidential Information shall not include information that: (a) is
already rightfully known by the receiving person at the time it is obtained by
such person, free from any obligation to keep such information confidential; (b)
is or becomes publicly known through no wrongful act of the receiving person;
(c) is rightfully received by the receiving person from third party without
restriction and without breach of this Agreement.
"Equipment" means all items of equipment leased or purchased by Bridge
from Sprint and used to enable Bridge to utilize the Products and Services
provided hereunder.
"Installation Site" means any location for which Bridge orders Products
or Services. The Installation Sites may be changed by Bridge from time to time
on reasonable notice pursuant to Section 7. If Bridge changes the location of an
Bridge/Sprint Confidential -2- January 30, 1995
Installation Site prior to the actual installation, Bridge will not incur
additional charges if notice of the change is received by Sprint within ten (10)
days of the date of the order.
"Interruption" means an event resulting from the failure of the
Products and Services which prevents utilization of a Sprint-provided circuit
line, trunk or service. Scheduled maintenance downtime is not considered an
Interruption as long as Sprint provides sufficient notice. An Interruption
begins when Sprint is notified or becomes aware of the failure, whichever first
occurs. An Interruption continues until the Products and/or Services are
repaired or restored.
"Products and Services" means the equipment, facilities, programming,
software and related services provided by Sprint to Bridge hereunder, which
collectively constitute a fully managed network of Working Systems. The Products
and Services include Sprint Frame Relay Service but do not include special
access lines that may be used by Bridge in connection with the Products and
Services.
"Performance Specifications" means the standards contained in
Attachment E hereto which may be modified by the mutual agreement of the
parties.
"Sprint" means Sprint Communications Company L.P. and those of its
Affiliates providing Products and Services to Bridge hereunder.
"Working System" means a Bridge Installation Site at which the
installation of the Products and Services has been accepted by Bridge pursuant
to Section 10.
3. Term and Extensions.
(a) The initial term of this Agreement shall be three (3) years,
commencing on the last date shown on the signature page (Effective Date), and
shall continue in full force and effect unless terminated in accordance with its
provisions.
(b) Bridge shall have the right to extend the term of this Agreement
for up to two (2) successive one (1) year periods. Bridge must exercise its
renewal right by providing Sprint thirty (30) days' advance written notice of
Bridge's intent to extend.
4. Termination by Bridge.
Bridge shall have the right to terminate this Agreement:
(a) with no liability to Sprint other than for charges (less any
applicable credits) for Product and Services provided prior to such termination,
if:
Bridge/Sprint Confidential -3- January 30, 1995
(i) Bridge provides ten (10) days written notice of its intent
to terminate in the event the performance of the managed network falls below
that specified and calculated in accordance with Attachment E "Performance
Specifications" and Sprint is unable to cure such failure within sixty (60)
days;
(ii) Bridge provides ten (10) days written notice of its
intent to terminate in the event Sprint fails to perform or comply with or
violates any material warranty, term, condition or obligation of this Agreement,
or any material representation, warranty, certification or statement made by
Sprint in this Agreement shall prove to have been incorrect or misleading in any
material respect when made;
(iii) Bridge replaces the Products and Services provided
hereunder with other Sprint services, provided that Bridge takes such
replacement services under agreements that provide for term and volume
commitments equivalent to those provided hereunder; or
(iv) Bridge provides ten (10) days written notice of its
intent to terminate in the event Sprint becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or liquidation proceeding;
makes an assignment for the benefit of creditors; admits in writing its
inability to pay debts when due, or fails within ten (10) days after receipt of
written notice to remedy any breach of this Agreement.
(v) During month twelve (12) of the contract, Bridge provides
sixty (60) days written notice of its intent to terminate because of a change in
Bridge ownership control. The phrase "Bridge ownership control" shall mean (i)
any merger or consolidation of Bridge Information Systems, Inc. with any other
person or entity, (ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition, in one (1) or a series of transactions, of fifty percent
(50%) or more of Bridge Information Systems, Inc.'s assets (measured by the fair
market value of all the assets of Bridge Information Systems, Inc.), or (iii)
any acquisition of fifty percent (50%) or more of the combined voting power of
Bridge Information Systems, Inc.'s common stock by any person or entity. In the
event Bridge exercises this option, Sprint will continue to provide service in
accordance with the terms, conditions and rates herein for a period of up to
three (3) months after the effective date of termination. If Products and
Services have not completely transitioned from Sprint after three (3) months,
Sprint will provide Products and Services at Sprint's then current tariff or
list rates. Sprint will cooperate with Bridge or its successor until services
are completely migrated to another carrier.
(b) with liability to Sprint for Products and Services provided prior
to such termination, plus an amount equal to fifty percent (50%) of the monthly
price for the Products and Services terminated for the unexpired portion of the
term of this
Bridge/Sprint Confidential -4- January 30, 1995
Agreement. Bridge must provide Sprint thirty (30) days written notice of its
intent to terminate.
5. Partial Termination.
(a) Independent of Bridge's other rights to terminate this Agreement,
Bridge may
(i) terminate any or all Products and Services at any
Installation Site at which there is a Chronic Service Interruption affecting
Products and Services that collectively account for twenty-five (25%) or more of
Bridge's total payments for all Products and Services at such Installation Site;
(ii) terminate at all Installation Sites any specific Product
or Service subject to a Chronic Service Interruption if such Product or Service
accounts for twenty-five percent (25%) or more of Bridge's total payments for
all Products and Services;
(iii) terminate any Product or Service when permitted by
Section 18(c) or 21(b).
(b) The Minimum Commitment shall be reduced to reflect the termination
of any Products or Services under this Section.
6. Termination by Sprint.
Sprint shall have the right to terminate this Agreement if:
(a) Bridge fails to pay any invoice that is not the subject of a bona
fide dispute within thirty (30) days of the date such payment is due and Sprint
provides Bridge with written notice thereof, provided that Bridge shall have ten
(10) days from the time it receives notice from Sprint of nonpayment to cure any
such default;
(b) Bridge fails to perform or comply with or violates any other
material covenant, condition or obligation under this Agreement or any material
representation of Bridge shall prove to have been incorrect or misleading in any
material respect when made; or
(c) Bridge becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation proceeding; makes an
assignment for the benefit of creditors; admits in writing its inability to pay
debts when due, or fails within ten (10) days after receipt of written notice to
remedy any breach of this Agreement.
Bridge/Sprint Confidential -5- January 30, 1995
7. Rates and Charges.
For the term of this Agreement, Sprint shall charge Bridge the rates
and charges for the Products and Services set forth in Attachment B. The move or
relocation of an Installation Site shall be treated as a new installation for
all purposes under Attachment B. Any additional charges shall be mutually agreed
upon by the parties.
8. Invoices.
(a) Products and Services shall be billed monthly in advance, beginning
when the Products and Services to which the charges apply have been installed
and have been accepted by Bridge pursuant to Section 10. All items on an invoice
not the subject of a bona fide dispute shall be payable by Bridge in U.S.
currency within thirty (30) days from the date of receipt of the invoice. All
amounts not in dispute are subject to interest charges of 1 3/4 percent that
will accrue daily on all amounts not paid within thirty (30) days of the date of
receipt of the invoice.
(b) Bridge shall pay sales, use, federal excise, utility, gross
receipt, state and local surcharges, and similar taxes lawfully levied by a duly
constituted taxing authority against or upon the Products and Services. In the
alternative, Bridge shall provide Sprint with a certificate evidencing Bridge's
exemption from payment of or liability for such taxes. All other taxes,
including any ad valorem, income, franchise, privilege, value added or
occupational taxes of Sprint's shall be paid by Sprint.
(c) Bona fide disputes concerning invoices shall be referred to the
parties' respective Contract Managers for resolution. If they cannot resolve a
dispute within a reasonable time, the matter shall be escalated to the parties'
representatives for resolution. Any amount to which Bridge is entitled as a
result of the resolution of a billing dispute shall be credited promptly.
(d) In the event that Customer is seriously delinquent in payment of
non-disputed charges, then Sprint reserves the right to require a security
deposit from Bridge prior to continuing the provision of existing services or
allowing the provisioning of additional services.
9. Minimum Commitment.
Bridge agrees to install a minimum of two hundred (200) Installation
Sites in the first year of the Agreement term, and an additional 280
Installation Sites in the second year of the Agreement term. Thereafter, Bridge
agrees to maintain a minimum of 480 Installation Sites for the remainder of the
term of the Agreement. This minimum commitment shall consist of a 60 site
minimum for each pair of routers Sprint installs in a distribution site
location.
Bridge/Sprint Confidential -6- January 30, 1995
If Bridge is not meeting the minimum number of Installation Sites per a
particular distribution area, Bridge shall realign the remaining distribution
area Installation sites to another distribution area. After month 24 of the
contract, if the total number of Installation Sites falls below 480, Bridge
shall not be eligible to receive the discounted pricing set forth in Attachment
B of this Agreement.
10. Acceptance.
(a) Upon the installation of Products and Services at any Installation
Site, Sprint shall conduct appropriate tests to establish that it performs in
accordance with mutually agreed upon Acceptance Criteria and shall promptly
inform Bridge of such test results. If test results show that Products and/or
Services are performing in accordance with the Performance Specification, Bridge
shall accept the Product or Service at an Installation Site within twenty-one
(21) days of receipt of Sprint's test results. If Bridge does not notify Sprint
of its acceptance within that period, the Product or Service shall be deemed to
be accepted by Bridge on the last day of that period. Sprint may invoice Bridge
for such Product or Service effective the day after its acceptance under this
Subsection.
(b) If Sprint's tests establish that a newly installed Product or
Service does not perform in accordance with the mutually agreed upon Acceptance
Criteria, or Bridge reports to Sprint within the acceptance period specified in
Subsection (a) that it does not perform in accordance with the mutually agreed
upon Acceptance Criteria, Sprint shall immediately and diligently exert best
efforts to bring it into compliance. Sprint shall not bill Bridge for such
Product or Service until its acceptance by Bridge.
(c) Upon repair or restoration of Products and Service at any
Installation Site, Sprint shall conduct appropriate tests to establish that it
performs in accordance with mutually agreed upon Acceptance Criteria and shall
promptly inform Bridge of such test results.
11. Network Optimization.
(a) Sprint shall assist Bridge in optimizing the efficiency and
cost-effectiveness of the Products and Services in general and at each
Installment Site. Sprint shall, at a cost to be mutually negotiated, implement
upgrades to maximize the efficiency of the Products and Services at such
Installation Sites. In the event an upgrade is required to enable Sprint to meet
its Performance Specifications, this upgrade shall be implemented at no
additional cost to Bridge.
(b) In cooperation with Bridge, Sprint shall review the design and
configuration of the Products and Services whenever Bridge's traffic materially
changes (e.g., upon the acquisition, divestiture or cessation of business
operations) or new or different products or services become Products and
Services hereunder. In any event, such reviews will be conducted at least every
ninety (90) days if so
Bridge/Sprint Confidential -7- January 30, 1995
requested by Bridge. Sprint shall provide written recommendations to Bridge
based upon such reviews.
12. Equipment Lease/Purchase.
Bridge may lease or purchase from Sprint or from one or more other
vendors the equipment necessary to enable Bridge to utilize the Products and
Services provided hereunder, provided that Bridge must purchase or lease from
Sprint the equipment required for the minimum number of sites specified in
Section 9. If Bridge chooses to lease or purchase such equipment from Sprint,
the parties shall execute a separate agreement for that purpose.
13. Maintenance Support.
Sprint shall provide maintenance service at each Installation Site in
accordance with the terms of Attachment D commencing upon Bridge's acceptance of
the Products and Services at such Installation Site and continuing until the
earlier of (a) the termination of all Products and Services at such Installation
Site or (b) the termination or expiration of this Agreement.
14. Access Management.
(a) Sprint shall order and manage on Bridge's behalf access services
for use in connection with the Products and Services. Sprint shall utilize
Teleport Communications Group ("TCG") for access services where available. Rates
shall be Sprint Tariff 8 less fifteen percent (15%), with Access Channel Fees
("ACF") and Central Office Connection ("COC") charges waived. Sprint will review
access rates annually. Sprint will only pass through to Bridge any decreases in
Tariff 8 rates, but shall not pass through any increases. For rates that have
decreased, Sprint will reprice at the then current Tariff 8 rates less 15%. Once
the SIA Local Access Services contract is signed, Bridge may take advantage of
the SIA pricing if TCG provides the access. However, Bridge may use access
pricing from only one contract, i.e., either this contract or the SIA Local
Access Services contract. If SIA access pricing is selected, non-SIA sites will
be charged at current Sprint Tariff 8 rates and ACF and COC shall be waived.
(Bridge shall also have the option of choosing Sprint's Coordinated Vendor
Billed Access ("SCVBA") service at the price specified in Attachment B. If
Bridge selects this option, Sprint act's as Bridge's agent to order, test and
install access services, but the access provider bills Bridge directly.)
(b) Bridge shall supply Sprint with letters of agency to permit Sprint
to act on Bridge's behalf for purposes of ordering and managing access services.
The access provider will invoice Sprint, and Sprint will invoice Bridge for
access services.
Bridge/Sprint Confidential -8- January 30, 1995
(c) Sprint shall use due care to (i) monitor, direct and supervise such
access provider's performance (including conducting fault isolation); (ii)
enforce any warranties and other assurances of performance obtained from it by
Sprint pursuant to tariff or otherwise; or (iii) report promptly to Bridge any
actual or threatened failure of performance by such access provider that does or
could reasonably be expected to affect adversely in any material respect
Sprint's ability to provide any Product or Service in conformity with the
requirements of this Agreement.
15. Rights and Obligations of Bridge.
(a) Contract Manager. Bridge shall assign a representative to serve as
Sprint's point-of-contact for all matters concerning its performance under this
Agreement.
(b) Site Preparation. Bridge shall, at its own expense, provide all
necessary preparations of each Installation Site in accordance with Attachment
C, including inside wiring, demarc extension and rack mount accessories. Bridge
shall ensure that Bridge-provided equipment is on site by the scheduled
installation date. If Sprint is required to reschedule the installation of
Bridge-provided equipment because it is not on site by the scheduled
installation date, Bridge shall pay Sprint to redispatch installation personnel.
(c) Proper Use of Equipment.
(i) Bridge shall use any equipment provided by Sprint in
connection with the Products and Services in accordance with its documentation,
which documentation shall be provided by Sprint at no additional charge. Unless
otherwise provided herein, Bridge shall surrender the equipment to Sprint upon
the termination of this Agreement.
(ii) Bridge shall be liable for damages to the Products and
Services caused by the negligence or willful acts or omissions of Bridge's
officers, employees, agents or contractors; for the loss through theft or
vandalism of the Products and Services at the Installation Sites; and for
damages to Products and Services caused by the use of equipment or supplies not
provided hereunder or otherwise authorized by Sprint.
(iii) Bridge shall neither permit nor assist others to use the
Products and Services for any purposes other than that for which they are
intended; fail to maintain a suitable environment as specified Sprint in the
applicable schedule; or alter, tamper with, adjust or repair the Products and
Services. Any such alteration, tampering, adjustment or repair by Bridge shall
relieve Sprint from any liability or obligation hereunder (including any
warranty or indemnity obligation) relating to the affected Products and
Services, and Bridge shall be liable to Sprint for any documented direct costs
incurred by Sprint as a result of such actions.
Bridge/Sprint Confidential -9- January 30, 1995
9 9 9 9 (d) Abuse or Fraudulent Use of Products and Services.
Bridge shall
neither permit nor assist others to abuse or fraudulently use the Products and
Services, including
(i) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment;
(ii) accessing, altering or destroying any information of
another Sprint customer by any fraudulent means or device, or attempting to do
so; or
(iii) using the Products and Services so as to interfere with
the use of the Sprint network by other Sprint customers or authorized users in
violation of the law or in support of any unlawful act.
16. Rights and Obligations of Sprint.
(a) Program Manager. Sprint shall assign a representative to serve as
Bridge's point-of-contact for all matters concerning its performance under this
Agreement.
(b) Provision of the Products and Services. Sprint shall install,
operate, maintain and manage the Products and Services at the Installation Site
designated by Bridge in accordance with the Performance Specifications and other
terms of this Agreement. Sprint shall install the cable that connects the
Products and Services to Bridge servers at such Installation Sites to achieve a
Working System. Bridge may at any time add, delete, relocate or, with Sprint's
consent, modify any Product or Service. The installation interval for any
addition or relocation shall be determined by agreement of the parties.
(c) Access and Security.
Sprint personnel shall have such access to Bridge's premises
as is reasonably necessary to provide the Products and Services in accordance
with this Agreement, provided that Sprint personnel shall comply at all times
with Bridge's reasonable security requirements. Bridge shall have the right
immediately to terminate the right of access of any Sprint personnel to any or
all Installation Sites should Bridge determine in its sole discretion that such
termination is in Bridge's best interest, provided that Bridge shall not
exercise this right on grounds unrelated to job performance or in a manner that
obliges Sprint to commit any unlawful act. Unless Sprint knew or should
reasonably have known that particular Sprint personnel would be barred from an
Installation Site, the time allowed for any installation, repair, maintenance,
or similar action that such personnel were to perform shall be extended for the
period reasonably required by Sprint to deploy substitute personnel, provided
that Sprint shall use its best efforts to deploy such substitute personnel as
quickly as possible. For purposes of this Subsection, any subcontractor or other
agent of Sprint shall be treated as Sprint personnel.
Bridge/Sprint Confidential -10- January 30, 1995
(d) Insurance.
(i) At all times during the term of this Agreement, Sprint
shall maintain for itself, its officers, employees, agents, and representatives
the following: (i) all insurance coverage required by federal and state law,
including workers' compensation insurance; (ii) comprehensive general liability
insurance with a combined limit of not less than $5,000,000 of coverage for
bodily injury and property damage under a standard or excess policy, together
with additional insurance required to cover claims, losses and liabilities
hereunder; (iii) a fidelity bond covering Sprint, its officers and employees
with a limit of not less than $5,000,000, underwritten by an insurer licensed to
do business in the state of Missouri; and (iv) automobile liability insurance in
the amount of not less than $1,000,000. Sprint's general liability insurance
shall include coverage for claims brought against Sprint as a result of work
performed by its subcontractors. The policy limits set forth in this Section
shall in no way be construed as a limitation on Sprint's liability hereunder.
(ii) Sprint shall furnish to Bridge, upon written request,
certificates of insurance or other appropriate documentation (including evidence
of renewal of insurance) evidencing the general liability and automobile
liability insurance coverage referenced above, naming Bridge as an additional
insured. Such certificates or other documentation shall include a provision
whereby fifteen (15) days' prior written notice shall be provided to Bridge
prior to coverage cancellation or other material alteration by either Sprint or
the applicable insurer. Such cancellation or material alteration shall not
relieve Sprint of its continuing obligation to maintain insurance coverage in
accordance with this Subsection.
(iii) In lieu of all or part of the insurance coverage
specified in Subsection (i), Sprint may self-insure with respect to any
insurance coverage, except where expressly prohibited by law.
(e) Representations and Warranties.
(i) Sprint hereby warrants that the Products and Services,
with the exception of the ISC Cards, will operate in accordance with the
Performance Specifications upon the date installed and throughout the term of
this Agreement. Sprint assumes no responsibility for the performance of the ISC
Cards because Bridge is contracting directly with ISC for special development of
the Cards. Sprint acknowledges that, in the event of the Interruption of any
Product or Service, Bridge may suffer damages the amount of which cannot easily
be determined.
(A) In the event that Sprint does not provide overall
network availability as defined in Attachment E, Sprint shall grant Bridge a
credit (the "Credit Allowance") for the sites that cause Sprint's failure to
meet the overall network availability.
Bridge/Sprint Confidential -11- January 30, 1995
A separate availability calculation will be derived for those sites that are
contributory to Sprint's failure to meet its network availability commitment.
Credits will be applied to those sites in accordance with the following table:
For Site Types A, B1, B2, C1, C2, if the service availability is:
Greater than
or equal to and less than the credit is
99.95% -- 0%
99.85% 99.95% 1%
99.75% 99.85% 2%
99.65% 99.75% 3%
99.55% 99.65% 4%
99.45% 99.55% 5%
99.35% 99.45% 6%
99.25% 99.35% 7%
99.15% 99.25% 8%
99.05% 99.15% 9%
98.95% 99.05% 10%
For Site Types D, E1, E2, if the service availability is:
Greater than
or equal to and less than the credit is
99.91% -- 0%
99.81% 99.91% 1%
99.71% 99.81% 2%
99.61% 99.71% 3%
99.51% 99.61% 4%
99.41% 99.51% 5%
99.31% 99.41% 6%
99.21% 99.31% 7%
99.11% 99.21% 8%
99.01% 99.11% 9%
98.91% 99.01% 10%
No credit shall exceed 10% for any site.
(B) For any Interruption that the parties agree is
likely to last beyond ten (10) days, Bridge shall have the right in its sole
discretion to subscribe to an alternative Sprint service to replace the affected
Product or Service for the period of time that the Products and Services are
interrupted. If Sprint cannot provide a suitable alternative service over its
own facilities, Sprint shall obtain from other vendors or carriers the services
or facilities necessary to provide substitute service to Bridge. If Bridge
elects to obtain these alternative services through Sprint, Bridge shall pay the
lesser of the rates and charges for the affected Product or Service or the
charges incurred for the alternative service (including usage charges, if any).
Sprint shall not charge Bridge to connect, commence or terminate any alternative
service obtained under this Subsection.
Bridge/Sprint Confidential -12- January 30, 1995
(C) Sprint shall not be liable for Credit Allowances
for an Interruption in connection with a Product or Service for which Bridge
obtains alternative service under Subsection (B) after it begins using such
alternative service.
(ii) Sprint hereby represents and warrants that the terms
hereof do not conflict in any respect whatsoever with any Sprint tariff on file
with the Federal Communications Commission or other regulatory body. If, during
the term of this Agreement, Sprint shall file a contract specific tariff
governing the Products and Services or any portion thereof, such tariff filing
shall be consistent in all respects with the terms of this Agreement, and Sprint
shall give Bridge ten (10) days' advance notice of making such a tariff filing
and of filing any subsequent modifications thereto.
(iii) THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
17. Limitations on Liability.
(a) Each party's liability to the other during the service term for all
injuries other than those listed in Subsection (c) below shall not exceed one
hundred thousand dollars ($100,000).
(b) Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special damages, including
damages for lost profits, regardless of the form of action whether in contract,
indemnity, warranty, strict liability, or tort, including negligence of any kind
with regard to the Products and Services or other conduct under this Agreement.
(c) Nothing contained in this Section shall limit either party's
liability to the other for (i) willful or intentional misconduct; or (ii) injury
or death, or damage to tangible real or tangible personal property or the
environment, when proximately caused by Sprint's or Bridge's negligence or that
of their respective agents, subcontractors or employees. Nor shall anything
contained in this Section limit Sprint's intellectual property indemnification
obligations under Section 21.
18. Equipment and Software Not Provided by Sprint.
(a) Sprint shall not be responsible for the installation, operation or
maintenance of equipment or software not provided under this Agreement; nor
shall Sprint be responsible for the transmission or reception of information by
equipment or software not provided hereunder. In the event that Bridge uses
equipment or software not provided hereunder in a manner that impairs Bridge's
use of the Products and Services, Bridge shall not be excused from payment for
such use.
Bridge/Sprint Confidential -13- January 30, 1995
Upon notice from Sprint that equipment or software not provided under this
Agreement is causing or is likely to cause hazard, interference or service
obstruction, Bridge shall eliminate the likelihood of such hazard, interference
or service obstruction.
(b) Notwithstanding the foregoing, Sprint shall, at no additional
charge, provide all interface specifications for the Products and Services
reasonably requested by Bridge. Sprint shall, upon the receipt of appropriate
specifications from Bridge, inform Bridge of the compatibility with the Products
and Services of any equipment or software that Bridge proposes to use in
connection therewith; the effects, if any, of the use of such equipment or
software on the quality, operating characteristics, and efficiency of the
Products and Services; and the effects if any, of the Products and Services on
the operating characteristics and efficiency of any such equipment or software.
(c) If any material modification or reprovisioning of Sprint's network
(including any modification of the software for which a license is provided
hereunder) undertaken other than at Bridge's request (i) adversely affects any
of the Products and Services, (ii) causes Bridge to incur significant costs for
any Products and Services (a write-down of equipment or equipment-related assets
being a cost for purposes of this Subsection), (iii) prevents proper operation
of any Bridge equipment, or (iv) prevents any Products and Services from meeting
any Performance Specification, Bridge shall have the right to terminate any
adversely affected Products and Services pursuant to Section 5. Sprint shall
provide advance notification to Bridge of any such modification or
reprovisioning.
19. Proprietary Rights; License.
(a) Sprint hereby grants to Bridge a non-exclusive and non-transferable
license to use all programming and software necessary for Bridge to use the
Products and Services. Such license is granted for the term of this Agreement
and for the sole purpose of enabling Bridge to use the Products and Services.
(b) All title and property rights (including intellectual property
rights) to Products and Services (including associated programming and software)
are and shall remain with Sprint. Bridge shall not attempt to examine, copy,
alter, "reverse engineer," tamper with or otherwise misuse such Products and
Services, programming and software. Bridge accepts title to the Equipment and
risk of loss of Equipment FOB destination.
20. Confidentiality.
(a) During the term of this Agreement and for a period of five (5)
years from the date of its expiration or termination or the expiration or
termination of all extensions thereto, each party agrees to maintain in strict
confidence all Confidential Information. Neither party shall, without prior
written consent,
Bridge/Sprint Confidential -14- January 30, 1995
use the other party's Confidential Information for any purpose other than for
the performance of its duties and obligations under this Agreement. Each party
shall use, and cause all authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the other party's
Confidential Information as it uses to protect its own.
(b) Notwithstanding Subsection (a), either party may disclose the
Confidential Information of other party to: (i) its employees and the employees,
directors and officers of its affiliates as necessary to implement this
Agreement; (ii) employees, agents or representatives of the other party; or
(iii) other persons (including counsel, consultants, lessors or managers of
facilities or equipment used by such party) in need of access to such
information for purposes specifically related to either party's responsibilities
under this Agreement, provided that any disclosure of Confidential Information
under clause (iii) shall be made only upon the prior written approval of the
other party and subject to appropriate assurances that the recipient of such
information shall hold it in strict confidence.
(c) Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such information shall
promptly return it (including any copies, extracts and summaries thereof) to the
requesting party, or, with the other party's written consent, shall promptly
destroy it and provide the other party with written certification of same.
(d) Either party may request in writing that the other party waive all,
or any portion, of the requesting party's responsibilities relative to the other
party's Confidential Information. Such waiver request shall identify the
affected information and the nature of the proposed waiver. The recipient of the
request shall respond within a reasonable time, and if, in its sole discretion,
it determines to grant the requested waiver, it will do so in writing over the
signature of an employee authorized to grant such request.
(e) Bridge and Sprint acknowledge that any disclosure or
misappropriation of Confidential Information in violation of this Agreement
could cause irreparable harm, the amount of which may be extremely difficult to
determine, thus potentially making any remedy at law or in damages inadequate.
Each party, therefore, agrees that the other party shall have the right to apply
to any court of competent jurisdiction for an order restraining any breach or
threatened breach of this Section and for any other appropriate relief. This
right shall be in addition to any other remedy available in law or equity.
(f) A party requested or ordered by a court order or other governmental
authority of competent jurisdiction to disclose another party's Confidential
Information shall notify the other party in advance of any such disclosure and,
absent the other party's consent to such disclosure, use its best efforts to
resist and to assist the other party in resisting such disclosure. A party
providing another
Bridge/Sprint Confidential -15- January 30, 1995
party's Confidential Information to a court or other governmental authority
shall use its best efforts to obtain a protective order or comparable assurance
that the Confidential Information so provided will be held in confidence and not
further disclosed to any other person, absent the owner's prior consent.
21. Indemnification.
(a) Sprint shall defend, settle, or otherwise manage its own cost and
expense any claim or action against Bridge or any of its directors, officers,
employees or permissible assigns for actual or alleged infringement of any
patent, copyright, trademark, trade secret, or similar proprietary right to the
extent that such claim or action arises from Bridge's use of the Products and
Services. Bridge shall notify Sprint promptly in writing of any such claim or
suit and shall cooperate with Sprint in a reasonable way to facilitate the
settlement or defense thereof. Sprint further agrees to indemnify and hold
Bridge harmless from and against and all liabilities and damages (whether
incurred as the result of a judicial decree or a settlement), and the costs and
expenses associated with any claim or action of the type identified in this
Subsection.
(b) If, as a consequence of a claim or action of the kind described in
Subsection (a), Sprint's or Bridge's use of any Product or Service or related
documentation is enjoined, Sprint shall, at its own option and expense, either:
(i) procure for Bridge the right to continue using the affected Product or
Service or documentation; (ii) modify such Product or Service or documentation
so that it is non-infringing (provided that such modification does not affect
the intended use of the Product or Service or documentation as contemplated
hereunder); or (iii) upon written notice to Bridge, substitute for such Product
or Service or documentation a comparable, non-infringing service or
documentation. If Sprint cannot do (i)-(iii) above, Bridge may terminate any
affected Product or Service pursuant to Section 5, and Sprint shall refund to
Bridge any prepaid charges therefor.
(c) Sprint and Bridge will be indemnified and saved harmless by the
other from and against all loss, liability, damage and expense, including
reasonable counsel fees, caused by:
(i) Claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or alteration of private records or
data arising from any information, data, or messages transmitted over the
network by Bridge; and
(ii) Claims for infringement of patents arising from the use
of equipment and software, apparatus and systems not provided hereunder in
connection with Products and Services.
Bridge/Sprint Confidential -16- January 30, 1995
22. Assignment.
Neither party may assign this Agreement or any rights or obligations
hereunder, without the prior written consent of the other party, which the other
party may grant or withhold in its sole discretion. Notwithstanding the
foregoing, either party may assign this Agreement or any or all of its rights
and obligations hereunder, to its parent, any of its affiliates or subsidiaries
upon notice to, but without the consent of, the other party. No assignment of
this Agreement shall relieve either party of any obligations thereunder. Any
attempted assignment in violation of this Section shall be void.
23. Force Majeure.
(a) In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots, embargoes, strikes or
other concerted acts of workers (whether Sprint's or others'), casualties,
accidents or other causes beyond the control of the party claiming excuse. No
failure to perform shall be excused under this Subsection unless such failure
and the consequences thereof are beyond the control and without the fault or
negligence of the party claiming excuse. Each party shall, with the cooperation
of the other, use reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
(b) If Sprint cannot promptly provide a suitable temporary Sprint
alternative to a Product or Service subject to an Interruption in connection
with the existence of a force majeure condition, Bridge may, at its option and
at its own cost, contract with one or more third parties for any or all affected
Products and Services for the shortest commercially available period likely to
cover the reasonably expected duration of the Interruption, and may suspend
Sprint's provision of such Products and Services for such period. Sprint shall
not charge Bridge for any Products and Services thus suspended during the period
of suspension. Sprint shall resume provision of the suspended Products and
Services upon the later of the termination or expiration of Bridge's legally
binding commitments under contracts with third parties for alternative services
or the cessation or remedy of the force majeure condition.
(c) In the event that a force majeure condition shall continue for more
than sixty (60) days, Bridge may cancel the affected Products and Services with
no further liability to Sprint other than for Products and Services received by
it prior to the occurrence of the force majeure condition.
24. Modifications.
No modification, amendment, or supplement to the Agreement or any of
its provisions shall be binding upon the parties unless made in writing and
signed by an authorized representative of the party against whom enforcement
thereof is sought. A failure or delay of either party to enforce any of the
provisions of this
Bridge/Sprint Confidential -17- January 30, 1995
Agreement, to exercise within the time specified (if any) any option provided
herein, or to require performance of any provision hereof shall in no way be
construed to be a waiver of such option or provision.
25. Notices.
All notices or other communications required or permitted to be given
or delivered under this Agreement shall be in writing and shall be sufficiently
given if delivered, in the case of disputes arising under this Agreement, by
registered mail or overnight express mail service or, in all other cases, by
first class mail as follows:
Notice to Sprint shall be to: Sprint Communications Company
13221 Woodland Park Road
Herndon, Virginia 22170
Attn: Data Contracts Administration
Notice to Bridge shall be to: Bridge Data Company
717 Office Parkway
St. Louis, MO 63141
Attn: Bernice Pennington
Either party may from time to time designate another address or other addresses
by notice to the other party in compliance with this Section. Any notice or
other communication shall be deemed to be given when received.
26. Advertisement and Publicity.
Neither Sprint nor Bridge shall use the name of the other in any
publicity release, solicitation or promotional material, or advertisement
without the prior written consent of the other. This prohibition includes use of
the other's name, trademarks or logos or any other reference to the other party
directly or indirectly in any advertising, sales presentation, news release,
release to any professional or trade publication or for any other purpose. Each
party may withhold consent under this Section in its sole discretion.
27. Headings.
The headings in this Agreement are for purposes of reference only and
shall not in any way limit or otherwise affect the meaning or interpretation of
any of the terms hereof.
28. Severability.
If any provision of this Agreement is held to be invalid, illegal, or
unenforceable, the unaffected provisions of this Agreement shall be unimpaired
and remain in full force and effect. Sprint and Bridge shall negotiate in good
faith to
Bridge/Sprint Confidential -18- January 30, 1995
substitute for such invalid, illegal, or unenforceable provision a mutually
acceptable provision consistent with the original intention of the parties.
29. Governing Law.
This Agreement shall be construed and enforced in accordance with, and
validity and performance hereof shall be governed by, the laws of the State of
New York.
30. Performance Pending Outcome of Disputes.
(a) Pending the resolution of any dispute or controversy arising under
this Agreement, Sprint shall continue to perform its obligations hereunder and
shall not discontinue, disconnect, or in any other fashion cease to provide all
or any substantial portion of the Products and Services to Bridge unless
otherwise directed by Bridge.
(b) This Section shall not apply where (i) Bridge is in default under
this Agreement or (ii) the dispute or controversy between parties relates to
harm to the Sprint network allegedly caused by Bridge and Bridge does not
immediately cease and desist from the activity giving rise to the dispute or
controversy.
31. Entirety of Agreement.
This Agreement, together with all Attachments, constitutes the entire
Agreement and supersedes all previous agreements, promises, representations,
understandings, and negotiations between the parties, whether written or oral,
with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto, each by a duly authorized
officer, have caused this Agreement to be executed as of the date first above
written.
SPRINT COMMUNICATIONS CO. L.P. BRIDGE DATA COMPANY
/s/ Charles A. Dill
- ---------------------------- --------------------------------
Signature Signature
Bridge/Sprint Confidential -19- January 30, 1995
Charles A. Dill
- ---------------------------- --------------------------------
Printed Name Printed Name
President & CEO
- ---------------------------- --------------------------------
Title Title
1/31/95
- ---------------------------- --------------------------------
Date Date
Bridge/Sprint Confidential -20- January 30, 1995
