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ARMY AND AIR FORCE EXCHANGE SERVICE
NEGOTIATED CONTRACT
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ISSUED BY
CONTRACT NO.
CONTRACT CONTROL NO.
Army & Air Force Exchange Service
01-001-05-02
(If applicable)
SD-V, Telecommunications
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3911 S Walton Walker
AMOUNT
TYPE OF ITEM/SERVICE
Blvd Dallas, TX 75234
[ ]Actual $36,000,000.00
Residential Voice, Data
TELEPHONE NO. 214-312-4646
[X]Estimated
and Video Svs. Kunsan
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1. Contractor agrees to provide the
Items/services at the prices set out and in
accordance with the terms of this
contract.
2. A copy of this contract consisting of
the provisions identified in the
Contents paragraph of the attached
Schedule, signed by the contracting officer
and approved when required In accordance
with applicable AAFES regulations
mailed or otherwise furnished to the
contractor will constitute award of the
binding contract
3 In the event of an inconsistency between
the provisions of this contract as
identified in the Contents paragraph of the
attached Schedule, the inconsistency
shall be resolved by giving precedence in
the following order (a) the Schedule,
(b) General Provisions, (c) other
provisions of the contract, whether
Incorporated by reference or otherwise Id)
the Specifications, and (e) the
Drawings.
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CONTRACTOR
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CONTRACTOR REPRESENTS (Check appropriate
boxes)
1. a That it [ ] is [X] is not a
manufacturer or producer of: [ ] is
[X] is not a regular dealer in; the items provided [Commodity
contracts
only)
OR
b
That it [X] is [ ] is not principally engaged in furnishing of
services
of the type called for herein (Service contracts only)
2. That it operates as an [ ]
Individual [ ] Partnership [X] Corporation,
incorporated in the State (Country if outside US) of
___________________.
3. That it [X] is [ ] is not a small
business.
4. That It [ ] is [X] is not a
minority business enterprise (see definition
below).*
5. That it [ ] is [X] is not a
women-owned business (see definition below).
*Check a block for all contracts to be performed in the United
States,
its possessions and Puerto Rico.
The term "minority business" means a business concern (1) which is
at
least 51 per cent owned by minority group
members, or in the case of any
publicly owned business, at least 51 per
cent of the stock of which is owned by
one or more minority group members, and (2)
whose management and daily business
operations are controlled by one or more
such minority group members For purpose
of this definition minority group members
include Black Americans. Hispanic
Americans, Asian-Pacific Americans,
Asian-Indian Americans, and Native Americans
(such as American Indians, Eskimos, Aleuts
and native Hawaiian*)
The term "women-owned business" means a business that is at least
51
per cent owned by a woman or women who also
control and operate it. "Control" in
this context means exercising the power to
make policy decisions. "Operate" in
this context means being actively involved
in the day-to-day management.
6. That an owner or officer of the
firm or the firm or a related firm
[ ]
has [X] has not been
convicted of a felony related to a business
transaction.
7. That an owner or officer of the
firm or the firm or a related firm
[ ]
has [X] has not been suspended or debarred.
8. That the person signing this
contract is an individual having the
authority to obligate the firm contractually.
9. That the information provided is
full, accurate and complete For breach
of
this warranty, AAFES may terminate this contract and all other
AAFES
contracts for default.
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FULL NAME AND BUSINESS ADDRESS OF
CONTRACTOR
TELEPHONE NUMBER:
FAX NUMBER:
(Street, City & Zip Code or Country)
(509) 289-9255
(801) 730-4734
HomeNet Communications
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5252 North Edgewood Drive Suite 310
E-MAIL:
Provo, UT 84604
mdevine@gohomenet.net
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SIGNATURE OF PERSON AUTHORIZED TO SIGN CONTRACT
DATE
/s/ Michael W. Devine
24 Feb 05
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TIN NO.
DUNS NO.
TYPED OR PRINTED NAME AND TITLE
91-2133121
11-868-8360
Michael W. Devine President, CFO
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CONTRACTING OFFICER
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SIGNATURE
TYPED NAME
DATE OF AWARD
Yvonne Finch
/s/ Yvonne Finch
Contracting Officer, Army & Air Force Exchange Service
25
Feb 05
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AAFES FORM 4450-032 (REV JAN 98)
(Prev Edition Usable)
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Negotiated Contract 01-001-05-02
SCHEDULE
1. General: This is a negotiated contract
for the provision of HomeNet
Communications Inc. to construct, operate,
and maintain an integrated IP
fiber-to-the-Home (FTTH) IP network to
deliver voice, video and data and other
emerging technologies as they become
available in the marketplace. The terms,
conditions, specific location(s) and scope
of service is outlined in Exhibit F,
Terms & Deliverables and made part of
this contract.
It is understood that the delivery of
service is contingent upon acceptance of
the proof of concept and project briefing
to Kunsan AB command and the Pacific
AF command in Hawaii. If the proof of
concept is not accepted, this contract
will be terminated in whole at no cost to
AAFES or the government.
2. Contents: This contract consists of
AAFES Form 4450-32, "Negotiated
Contract", and the following:
a. This Schedule consisting of 3 pages.
b. Exhibit A: General Provisions, Contract
for Services consisting of 8 pages.
c. Exhibit B: Labor Provisions, consisting
of 1 pages.
d. Exhibit C: Fee Schedule, consisting of 2
pages.
e. Exhibit D: Insurance, consisting of 2
pages.
f. Exhibit E: Performance & Equipment
Specifications, consisting of 5 pages.
g. Exhibit F: Terms and Deliverables,
consisting of 1 page and attachments.
h. Exhibit G: ROK Taxes, consisting of 1
page.
i. Exhibit H: Certificate For Tax
Exemption, consisting of 3 pages. 3.
Phase-Out/Changeover Period:
a. The 120 day period following expiration of the contract is a
phase-out/changeover period during which
time HomeNet Communications Inc. will
continue operations to correspond with a
phase-in of the following contract, as
directed by the contracting officer, to
provide continuity of service.
b. Upon the request of the contracting officer, HomeNet
Communications
Inc. must remove all switching equipment
and cease to market (make widely and
readily available) all telecommunication
services offered under this contract
within the 120 days phase-out/changeover
period as approved by the contracting
officer. AAFES shall have the first option
to purchase equipment and facilities.
4. Business Permit: HomeNet Communication
Inc. certifies by submission of
proposal, and/or acceptance of a contract
that he will obtain all necessary
permits and licenses relative to operating
in the country in which contract will
be performed prior to contract performance.
The burden of determining
applicability of host country business
requirements is strictly HomeNet
Communications Inc. responsibility and will
not give rise to any claim against
AAFES or a basis for adjusting terms and
conditions of the contract.
5. Conflict of AAFES Contract and Host
Country Laws, Rules, Regulations, and
Codes: HomeNet Communications, Inc. and its
sub-contractors shall ensure that
all service offered under this contract
comply with all applicable host country
laws, rules, regulations and codes. HomeNet
Communications, Inc. must also
Kunsan Telecommunications
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Negotiated Contract 01-001-05-02
indemnify AAFES and the Air Force from any
violations of host country laws,
rules, regulations and codes and any claims
of patent, trademark, service mark
or copyright infringement by third
parties.
6. Activity: AAFES grants HomeNet
Communications Inc. a nonexclusive concession
to operate the Services outlined in this
contract, however, AAFES will not
contract to provide the services covered
under this contract during the period
of the contract. This excludes existing and
future national or worldwide
contract and services sold through our
retail stores. The assignment of space
for concession is a revocable license, not
a tenancy.
a.AAFES or the Air Force makes no warranty or representation,
express
or implied of Services sold by HomeNet
Communications Inc are not restricted
from competition on the base and shall have
no liability or obligation to
HomeNet Communications Inc. in connection
with allowing telephone or Internet or
television providers, to have access to the
Residents on the base. Residents may
select a service provider of their choice
for their telecommunications services.
b.HomeNet Communications Inc. will be positioned and marketed
within
the AAFES marketing channels as the
provider of choice for telephone, data and
video services to all Residents. HomeNet
Communications Inc. understands and
agrees that AAFES will continue to market
telecommunication services in AAFES
national telecommunication contracts.
c.If premises furnished by or through AAFES are destroyed either
in
whole or in substantial part, so as to
significantly hinder or prevent normal
operations by HomeNet Communications Inc.,
by acts of God (such as, but not
limited to, fire, flood, hurricane,
unusually severe weather conditions) or
unusual occurrence, AAFES nor the Air Force
will not be responsible to HomeNet
Communications Inc. for repair/restoration
of the premises, lost income, sales,
or lost profits, damage to HomeNet
Communications Inc. property, employee
salaries, or any consequential costs
incurred, or be obligated to relocate
HomeNet Communications Inc.. HomeNet
Communications Inc. should consider
obtaining business insurance to cover risks
to its property.
d. During the contract period, the contracting officer may
require
HomeNet Communications Inc. to relocate
from retail space provided by AAFES to
better meet AAFES needs or those of the
base, as determined by the contracting
officer. HomeNet Communications Inc. will
be given advance notice. AAFES or the
Air Force will not be liable for lost
income, profit and/or salaries associated
with relocating.
7. Facilities/Maintenance: HomeNet
Communications Inc. investment for buildings
will only be required in those locations
where suitable retail space cannot be
secured. AAFES will maintain AAFES
furnished premises (retail sales outlet)
including ordinary running repairs. HomeNet
Communications Inc. will be liable
for damage to the premises resulting from
acts or omissions of HomeNet
Communications Inc., its employees, or
agents. AAFES may inspect the premises at
any time. HomeNet Communications Inc. will
keep the premises clean, orderly,
secure, and sanitary. HomeNet
Communications Inc. will comply with the
base/exchange fire, safety and security
regulations and applicable health and
sanitation and environmental protection
regulations.
8. Prohibited Activities: HomeNet
Communications Inc. will take no actions
counter to the purpose of this contract or
which have the effect of diverting
sales from the base activity to HomeNet
Communications Inc. commercial business
activities. Facilities will not be used for
performance or support of other
AAFES contracts or commercial business
activities.
9. Authorized Customers: HomeNet
Communications Inc. will sell service or
merchandise under this contract only to
personnel authorized to use AAFES
facilities.
10. Customer Complaints and Claims: HomeNet
Communications Inc. will adhere to
AAFES' policy of customer satisfaction
guaranteed. All customer complaints and
claims will be resolved at HomeNet
Communications Inc. expense. Any disagreement
that cannot be resolved between HomeNet
Communications Inc. and the customer
will be decided by the contracting officer,
whose decision will be final and not
subject to
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Negotiated Contract 01-001-05-02
the Disputes clause. If HomeNet
Communications Inc. fails to process complaints
and claims timely, AAFES may, in addition
to other rights and remedies available
under this contract, settle customer
complaints and claims and charge them to
HomeNet Communications Inc.
11. Utilities: AAFES will pay for all
utilities, to include heat, power, water,
and sewage service, at AAFES furnished
retail sales outlets unless otherwise
provided in the contract. AAFES will not be
liable for losses caused by
interruptions of utility service. HomeNet
Communications Inc. will pay for
connecting and disconnecting utilities to
HomeNet Communications Inc. furnished
equipment.
12. Internal Controls: HomeNet
Communications Inc. will keep a complete and
accurate accounting of all transactions
including, but not limited to, customer
billing, facility sales, organization
sales, etc. Customer billing will be in
accordance with industry standards.
a. The AAFES contracting officer, or any person designated by
the
contracting officer, may conduct
inspections to ensure compliance by HomeNet
Communications Inc. with all provisions of
this contract. This includes visiting
the HomeNet Communications Inc. computer
operations center, or other appropriate
facility, to inspect electronic reporting
activities such as record keeping
determining integrity of results reporting.
HomeNet Communications Inc. must
agree to provide access to all necessary
records, files, personnel, equipment
and other information or resources deemed
necessary by AAFES to satisfactorily
complete its review. Reasonable notice will
be provided to HomeNet
Communications Inc. in advance of AAFES
audit activities.
b. HomeNet Communications Inc. is liable and will pay AAFES for
losses
under this contract detected by
surveillance or otherwise discovered or
incurred.
13. Taxes: HomeNet Communications Inc. is
responsible for determining the
applicability of and for payment of all
federal, state, local or host country
taxes taxes applicable to the property,
income, and transactions of HomeNet
Communications Inc. If required by
applicable laws and regulations, HomeNet
Communications Inc. will collect and remit
sales taxes to the appropriate
authority.
14. Employees: HomeNet Communications Inc.
will discontinue the use of any
employee for performance of this contract
upon written notice from the
contracting officer that the individual is
not (or no longer) acceptable for
performance under this contract.
15. Insurance: HomeNet Communications Inc.
will maintain in full force and
effect, during the contract, at least the
insurance coverage in the Insurance
Requirement Exhibit. HomeNet Communications
Inc. will be liable for damage, loss
or injury to property or persons resulting
from acts or omissions of HomeNet
Communications Inc. employees or agents,
whether or not covered by required
insurance.
16. Refunds: HomeNet Communications Inc.
will be responsible for refunds to
customers for customer dissatisfaction with
Service(s) or for any overcharges to
customers. Should HomeNet Communications
Inc. refuse or fail to promptly make
any refund of overcharges to a customer,
AAFES may make the refund and charge
HomeNet Communications Inc.
Kunsan Telecommunications
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Negotiated Contract 01-001-05-02
EXHIBIT A
GENERAL PROVISIONS
Contract for Services
(August 2004)
1. AUTHORITY TO BIND (JAN 94).
2. LEGAL STATUS (AUG 92).
3. PROCUREMENT INTEGRITY (AUG 92).
4. ORAL REPRESENTATIONS (JAN 94).
5. MODIFICATIONS AND ADDITIONS (JUN 94).
6. SUBCONTRACTING (JUN 94).
7. ASSIGNMENT - SERVICES (DEC 97).
8. TERMINATION (AUG 04).
9. PERMITS, LICENSES AND APPLICABLE LAWS (JAN 94).
10. INDEMNIFY AND HOLD HARMLESS (MAY 89).
11. DISPUTES (FEB 95).
12. NON-WAIVER OF DEFAULTS (MAY 89).
13. ADVERTISEMENTS (MAY 89).
14. EXAMINATION OF RECORDS (MAR 94).
15. CONTRACTOR PERSONNEL AND REPRESENTATIVES (JAN 94).
16. ENVIRONMENTAL PROTECTION (MAR 94).
17. CONTRACTOR LIABILITY - SERVICES (MAR 94).
18. DRUG-FREE WORKPLACE (AUG 92).
19. RESTRICTIONS ON PURCHASES OF FOREIGN GOODS (AUG 95).
20. YEAR 2000 COMPLIANT (APR 98).
21. PAYMENT BY ELECTRONIC FUNDS TRANSFER (OCT 98).
22. PRIVACY ACT (APR 1984)
Kunsan Telecommunications
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Negotiated Contract 01-001-05-02
GENERAL PROVISIONS
Contract for Services
1. AUTHORITY TO BIND (JAN 94).
a.
"Contracting Officer" means a person authorized by
the Commander, AAFES to execute and administer
contracts, purchase orders, or other agreements on
behalf of AAFES. Only contracting officers may waive
or change contract terms; impose additional contract
requirements; issue cure, show-cause and termination
notices; issue claims against contractors, and issue
final decisions on contractor claims.
a. Other AAFES and government officials may be authorized by
the
contracting officer to perform actions of
an administrative nature, forwarding
requests for contract changes to the
contracting officer; collecting contract
payments, and processing routine documents.
These officials are not contracting
officers, as defined in a. above.
b. AAFES has no obligation to recognize or accept waivers or
changes to
this contract that result from the actions
of officials other than the
contracting officer. Claims based on such
actions may be denied. Questions
concerning the authority of other AAFES or
government officials should be
referred to the contracting officer.
2. LEGAL STATUS (AUG 92). The Army and Air
Force Exchange Service, including its
activities, offices, individual exchanges
and overseas exchange systems, is an
integral part of the Departments of the
Army and Air Force and is a
nonappropriated fund instrumentality of the
United States Government. AAFES
contracts are United States contracts;
however, they do not obligate
appropriated funds of the United States
except for a judgment or a compromise
settlement in suits brought under the
provisions of the Contract Disputes Act
(41 USC 601-613), in which event AAFES will
reimburse the United States
Government (31 USC 1304[c]). (Note: AAFES
procurement policy is established by
the Department of Defense and the Army and
Air Force in DoD Directive 4105.67,
AR 60-10/AFR 147-7, and AR 60-20/AFR
147-14. The Armed Services Procurement Act
and Federal Acquisition Regulation do not
apply to AAFES due to its status as a
nonappropriated fund instrumentality).
3. PROCUREMENT INTEGRITY (AUG 92).
a. By submission of an offer or performance of this contract,
HomeNet
Communications Inc. certifies with respect
to this AAFES purchase action:
(1) that no discussion, offer or promise of future employment
or
business opportunity has been or will be
made to AAFES civilian or military
personnel who participated personally and
substantially in the purchase action;
(2) that no offer, promise or gift of any gratuity,
entertainment,
money, or other thing of value has been or
will be made to any AAFES civilian or
military personnel or any other employee of
the United States Government or
member of their family or household;
(3) that no information proprietary to other offerors or other
purchasing information (listing of
offerors, prices offered, technical
evaluations or rankings, etc.) has been or
will be sought, obtained or given to
any person not authorized by the
contracting officer, until it would be
available to the public under AAFES
procedures.
(4) that no person or selling agency has been employed or retained
to
secure this contract upon an agreement or
understanding for a commission,
percentage, brokerage or contingent fee
except bona fide employees or bona fide
established commercial selling agencies
retained by the or the purpose of
securing business.
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Negotiated Contract 01-001-05-02
b. HomeNet Communications Inc. certifies that no gratuities
(entertainment, gifts, money, kickbacks or
other things of value) were or will
be solicited or accepted by the HomeNet
Communications Inc., or any person
representing HomeNet Communications Inc.,
from any subcontractor or person
representing the subcontractor, for the
purpose of obtaining or rewarding
favorable treatment in connection with this
contract or any subcontract under
it.
c. HomeNet Communications Inc. will report in writing to the
Director,
Loss Prevention Division, any possible
violation of this clause when HomeNet
Communications Inc. has reasonable grounds
to believe a violation may have
occurred. HomeNet Communications Inc. shall
cooperate fully with any federal
agency investigation of a possible
violation of this clause.
d. For breach of any of these certifications, AAFES may terminate
this
contract for default and/or deduct from
amounts due under this or other
contracts, or charge HomeNet Communications
Inc. for, the total value of any
contingent fee, gratuity or kickback or
other loss to AAFES arising out of the
breach.
4. ORAL REPRESENTATIONS (JAN 94). This
contract represents the entire agreement
of the parties. Any changes or amendments
thereto may not be recognized by AAFES
unless committed to writing and
incorporated by reference into the contract by
the contracting officer.
5. MODIFICATIONS AND ADDITIONS (JUN 94).
Except as otherwise specifically
provided in this contract, all changes,
modifications, additions or deletions to
this contract must be prepared in writing
as formal amendments signed by both
parties and approved in accordance with
provisions of applicable regulations.
6. SUBCONTRACTING (JUN 94). HomeNet
Communications Inc. shall not subcontract
any part of the work to be performed
without the prior written consent of the
contracting officer. Any HomeNet
Communications Inc. sub-contractor used in
connection with this contract is the agent
of the HomeNet Communications Inc.
and not the agent of AAFES.
7. ASSIGNMENT - SERVICES (DEC 97). The
Assignment of Claims Acts, 31 U.S.C. 3727
and 41 U.S.C. 15, are not applicable to
amounts due under AAFES contracts.
HomeNet Communications Inc. may not assign
its rights or delegate its
obligations under this contract, and AAFES
will neither consent to, nor
recognize, any purported assignment.
HomeNet Communications Inc. may request
permission from the contracting officer to
have contract payments forwarded to a
third party.
8. TERMINATION (JUN 94). Relative to
termination of this contract, it is
mutually agreed:
a. This contract may be terminated in whole or in part by either
party
immediately upon written notice to the
other party in the event of breach of
this contract by the other party.
b. This contract may be terminated in whole or in part by either
party
for cause upon 120 days notice in writing
to the other party.
c. At the end of the contract term, and should HomeNet
Communications
Inc. not win a follow on contract, HomeNet
Communications, Inc. shall remove at
their expense all uninstalled
equipment.
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Negotiated Contract 01-001-05-02
d. Upon or within 120 days after the expiration or termination of
this
contract, the HomeNet Communications Inc.
shall, at its sole cost, shall leave
any conduits, risers and wiring or cabling
located in the ground, walls,
ceilings, floors, risers and conduits in
its then "as is" condition and properly
labeled and in conformance with then
applicable laws and codes. This contract is
automatically terminated upon the dispatch
of written notice to HomeNet
Communications Inc. in the event the
exchange is inactivated or the installation
at which the exchange is located is
inactivated. If this contract covers
services to be performed at various
exchanges or installations and only one or
more of the exchanges or installations are
inactivated, then only that portion
of the contract being performed at the
inactivated exchange or installation is
terminated.
9. PERMITS, LICENSES AND APPLICABLE LAWS
(JAN 94). HomeNet Communications Inc.
warrants that all necessary permits and
licenses have been obtained and that the
merchandise, services, supplies, and/or
equipment provided under this contract
are in compliance with applicable laws.
10. INDEMNIFY AND HOLD HARMLESS (MAY
89).
a. HomeNet Communications Inc. will indemnify, hold harmless and
defend
AAFES and all other agencies and
Instrumentalities of the United States, their
agents, representatives, employees and
customers from any and all suits,
judgments and claims, including those
established by or pursuant to court
decisions, to international agreements, or
duly promulgated regulations of the
United States Government, and all charges
and expenses incident thereto which
arise out of any of the following:
(1) The alleged or established violation or infringement of any
patent,
copyright or trademark rights asserted by
any third party with regard to items
or services provided by HomeNet
Communications Inc.;
(2) Loss, damage, or injury alleged or established to have arisen
out
of or in connection with items or services
provided by HomeNet Communications
Inc., unless such loss, damage, or injury
was caused by or resulted solely from
the acts or omissions of AAFES, its agents,
representatives, or employees;
(3) Any loss, damage, or injury alleged or established to have
arisen
out of or in connection with any other acts
or omissions of HomeNet
Communications Inc..
b. AAFES will give HomeNet Communications Inc. notice and an
opportunity to defend.
11. DISPUTES (FEB 95).
a. This contract is subject to the Contract Disputes Act of 1978,
as
amended (41 U.S.C. 601-613). Except as
provided in the Act, all disputes arising
under or relating to this contract shall be
resolved under this clause.
b. "Claim" as used in this clause means a written demand or
written
assertion by one of the contracting parties
seeking the payment of money in a
sum certain or other relief arising under
or relating to this contract. A
voucher, invoice, or other routine request
for payment that is not in dispute
when submitted is not a claim under the
Contract Disputes Act.
c. A claim by HomeNet Communications Inc. shall be made in writing
and
submitted to the contracting officer for a
written decision. A claim by AAFES
against HomeNet Communications Inc. shall
be made by a written decision by the
contracting officer.
d. For HomeNet Communications Inc. claims exceeding $100,000,
HomeNet
Communications Inc. shall submit with the
claim a signed certification that:
(1) The claim is made in good faith;
(2) Supporting data are accurate and complete to the best of
HomeNet
Communications Inc.'s knowledge and belief,
and
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Negotiated Contract 01-001-05-02
(3) The amount requested accurately reflects the contract
adjustment
for which HomeNet Communications Inc.
believes AAFES is liable.
e. The claim must be executed by an individual with authority to
bind
HomeNet Communications Inc.
f. The contracting officer will mail or otherwise furnish a
written
decision in response to a HomeNet
Communications Inc. claim, within the time
periods specified by law. Such decision
will be final and conclusive unless:
(1) Within 90 calendar days from the date of HomeNet
Communications
Inc.'s receipt of the final decision
HomeNet Communications Inc. appeals the
decision to the Armed Services Board of
Contract appeals (ASBCA), or
(2) Within 12 months
from the date of HomeNet Communications Inc.'s
receipt of the final decision HomeNet
Communications Inc. brings an action in
the United States Court of Federal
Claims.
g. Pending final resolution on any request for relief, claim,
appeal,
or action arising under or relating to this
contract, HomeNet Communications
Inc. will proceed diligently with the
performance of this contract and will
comply with the contracting officer's
decisions.
h. Submission of false claims to AAFES is a violation of federal
law
and may result in civil and/or criminal
penalties. If HomeNet Communications
Inc. cannot support all or part of its
claim as a result of fraud or
misrepresentation of fact, then in addition
to other remedies or penalties
provided for by law, HomeNet Communications
Inc. will pay AAFES an amount equal
to the unsupported part of the claim and
all AAFES' costs attributable to
reviewing that part of the claim.
12. NON-WAIVER OF DEFAULTS (MAY 89). Any
failure by AAFES at any time, or from
time to time, to enforce or require strict
performance of any terms or
conditions of this contract will not
constitute waiver thereof and will not
affect or impair such terms and conditions
in any way or AAFES' right at any
time to avail itself of such remedies as it
may have for breach or breaches of
such terms and conditions.
13. ADVERTISEMENTS (MAY 89). HomeNet
Communications Inc. will not represent in
any manner, expressly or by implication,
that products purchased under this
contract are approved or endorsed by any
element of the United States
Government. Any advertisement, including
cents off coupons, by HomeNet
Communications Inc., which refers to AAFES,
will contain a statement that the
advertisement was neither paid for nor
sponsored, in whole or in part, by AAFES.
14. EXAMINATION OF RECORDS (MAR 94).
a. This clause is applicable if the amount of this contract
exceeds
$10,000 and the contract was entered into
by means of negotiation. HomeNet
Communications Inc. agrees that the
contracting officer (CO) or CO duly
authorized representative shall have the
right to examine and audit the books
and records of HomeNet Communications Inc.
directly pertaining to the contract
during the period of the contract and until
the expiration of three years after
final payment under the contract.
b. HomeNet Communications Inc. agrees to include clause "a" in
all
subcontracts hereunder which exceed
$10,000.
15. HOMENET COMMUNICATIONS INC. PERSONNEL
AND REPRESENTATIVES (JAN 94).
a. HomeNet
Communications Inc. will discontinue the use of any
individual for performance of this contract
in exchange facilities upon written
notice from the contracting officer that
the individual is not (or no
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longer) acceptable for performance under
this contract. HomeNet Communications
Inc. will not use any such person to
perform other AAFES contracts without the
prior written consent of the applicable
contracting officer.
b. HomeNet Communications Inc. will not employ for performance
in
exchange facilities any individual under
this contract who has been determined
unacceptable for performance under any
other AAFES contract without the prior
written consent of the contracting
officer.
c. HomeNet Communications Inc. personnel will abide by
applicable
regulations and directives and conduct
themselves so as not to reflect discredit
on AAFES.
d. HomeNet Communications Inc. will not represent itself to be an
agent
or representative of AAFES, or any other
agency or instrumentality of the United
States.
16. ENVIRONMENTAL PROTECTION (MAR 94).
a. This clause shall apply to any contract in excess of $100,000,
and
indefinite quantity contracts estimated to
exceed $100,000 in one year; however,
it shall not apply to use of facilities
located outside the United States or to
contracts otherwise exempt in accordance
with 40 CFR Part 15.
b. Unless this contract is exempt, by acceptance of this
contract,
HomeNet Communications Inc. (and, where
appropriate, sub-contractors)
stipulates:
(1) that any facility to be utilized in the performance of any
nonexempt contract or subcontract is not
listed on the EPA List of Violating
Facilities as of the date of contract
award;
(2) its agreement to comply with all requirements of Section 114 of
the
Air Act and Section 308 of the Water Act
relating to inspection, monitoring,
entry, reports, and information, as well as
all other requirements specified in
sections 114 and 308 of the Air Act and the
Water Act, respectively, and all
regulations and guidelines issued
thereunder;
(3) that as a condition of award of contract, HomeNet
Communications
Inc. shall promptly notify the contracting
officer of the receipt of any
communication from the Director, Office of
Federal Activities, U.S.
Environmental Protection Agency, or
delegatee, indicating that a facility to be
utilized for the contract is under
consideration to be listed on the EPA List of
Violating Facilities;
(4) its agreement to include the criteria and requirements in
subparagraphs (1) through (4) in every
nonexempt subcontract, and to take such
actions the Government may direct as a
means of enforcing such provisions.
17. HOMENET COMMUNICATIONS INC. LIABILITY -
SERVICES (MAR 94).
a. Except as set out specifically elsewhere in the contract,
HomeNet
Communications Inc. will be liable for
costs to AAFES and/or other agencies of
the United States associated with
termination for default as follows: (1)
Incidental damages, including expenses
reasonably incurred in connection with
repurchase of the service and any other
reasonable expense incident to the
breach. (2) Consequential damages
including, but not limited to, lost fees
resulting from lapses in service,
unscheduled facility closures, sales declines,
lower fees received on repurchase, and
injury to person or property proximately
resulting from any breach of warranty.
b. HomeNet Communications Inc. will not be liable for incidental
or
consequential damages if the failure to
perform arises out of causes beyond the
control and without the fault or negligence
of HomeNet Communications Inc.. Such
causes may include, but are not restricted
to, acts of God or of the public
enemy,
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01-001-05-02
acts of the government in either its
sovereign or contractual capacity, fires,
floods, epidemics, quarantine restrictions,
strikes, freight embargoes, and
unusually severe weather; but in every case
the failure to perform must be
beyond the control and without the fault or
negligence of HomeNet Communications
Inc. In such case HomeNet Communications
Inc. must provide prompt written notice
to the contracting officer; the contracting
officer, at his option may accept
late, partial or substituted performance,
or may terminate the contract in whole
or in part effective immediately upon
receipt of written notice by HomeNet
Communications Inc..
18. DRUG-FREE WORKPLACE (AUG 92). HomeNet
Communications Inc. agrees to make a
good faith effort to establish and maintain
a drug-free workplace in connection
with the performance of this contract.
Consistent with the size and organization
of its work force, HomeNet Communications
Inc. may wish to consider taking the
fo
