1
EXHIBIT 10.35
AGREEMENT NO. 980427 BETWEEN
SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY
PACIFIC ▇▇▇▇
NEVADA ▇▇▇▇
SOUTHERN NEW ENGLAND TELEPHONE
AND
HIGHWAYMASTER CORPORATION
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
2
Agreement No. 980427
INDEX
Page 1 of 85
INDEX
SECTION A - TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT
PREAMBLE 8
SCOPE OF AGREEMENT 8
DEFINITIONS 9
1. ACCEPTANCE DATE 9
2. ACCEPTANCE PERIOD 9
3. ACCEPTANCE TEST 10
4. DELIVERY DATE 10
5. DOCUMENTATION 10
6. DOWNTIME 10
7. EFFECTIVE DATE 10
8. ENTERPRISE LICENSE 10
9. FIELD ENGINEER 11
10. GPS MATERIAL 11
11. INSTALLATION ACCEPTANCE 12
12. INSTALLATION DATE 13
13. INSTALLATION SITE 13
14. INTELLECTUAL PROPERTY 13
15. LICENSE FEE 14
16. LICENSED SOFTWARE 14
17. ORDER 14
18. PREVENTIVE MAINTENANCE 14
19. PRINCIPAL PERIOD 15
20. PRODUCT 15
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
3
Agreement No. 980427
INDEX
Page 2 of 85
SECTION A - TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT
21. PROGRAM MATERIAL 15
22. REMEDIAL MAINTENANCE 15
23. SERVICES 15
24. SOFTWARE 15
25. SYSTEM 16
ACCEPTANCE OF GPS MATERIAL AS SUCH 16
ACCESS 17
AFFILIATED COMPANY 18
AMENDMENTS AND WAIVERS 18
ASSIGNMENT 19
CABLES AND RELATED ITEMS 19
CELLULAR SERVICE 19
CHANGES AND SUSPENSIONS 20
CHANGES TO GPS MATERIAL 21
CLEAN UP 21
COMPLAINTS 21
COMPLIANCE WITH LAWS 22
CONFLICT OF INTEREST 23
CONTINUING AVAILABILITY OF PARTS, MAINTENANCE AND TECHNICAL SUPPORT SERVICES 23
CURE 24
DELIVERY 24
DEPLOYMENT SCHEDULE & PHASED IMPLEMENTATION 25
DISPUTES AND DISPUTE RESOLUTIONS 29
DOCUMENTATION 29
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
4
Agreement No. 980427
INDEX
Page 3 of 85
SECTION A - TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT
EMERGENCY EQUIPMENT 29
ENGINEERING, DESIGN AND DEVELOPMENT SERVICES 30
FOB 31
FORCE MAJEURE 31
GOVERNING LAW 32
GRADE OF SERVICE 32
GSM FOR PACIFIC ▇▇▇▇ 32
HAZARDOUS MATERIALS AND REGULATED SUBSTANCES 34
HEADINGS 35
HWM'S LIMITATION 35
INDEPENDENT CONTRACTOR 36
INFRINGEMENT 36
INSPECTION 37
INSTALLATION 38
INSURANCE 38
LIABILITY 39
LICENSES & PATENTS 40
M/WBE-DVBE PARTICIPATION PLANS AND REPORT 40
MBE/WBE/DVBE CANCELLATION 40
MOST FAVORED CUSTOMER 42
NO THIRD PARTY BENEFICIARY 43
NON-EXCLUSIVE MARKET RIGHTS 43
NON-INTERVENTION 43
NON-WAIVER 43
NOTICES 44
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
5
Agreement No. 980427
INDEX
Page 4 of 85
SECTION A - TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT
ONGOING PERFORMANCE OF REMOTE PANIC ALARM 45
ORDER ACCEPTANCE 45
ORDER OF PRECEDENCE 45
PERSONNEL EMPLOYMENT 45
PLANT AND WORK RULES 46
POINTS OF CONTACT 46
PRICES AND PAYMENT 46
PRICE PROTECTION 47
PUBLICITY 48
PURCHASE AUTHORIZATION 48
PURCHASE PROVISIONS 49
QUALITY ASSURANCE 49
RECORDS AND AUDIT 51
REGISTRATION 51
RELEASES VOID 51
RELOCATION 52
REMEDIES CUMULATIVE 52
RESPONSIBILITIES 52
RISK OF LOSS 53
SBC AND HWM INFORMATION 53
SEVERABILITY 53
SHIPPING AND BILLING 54
SITE PREPARATION 55
SURVIVAL OF OBLIGATIONS 55
TAXES 56
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
6
Agreement No. 980427
INDEX
Page 5 of 85
SECTION A - TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT
TECHNICAL REQUIREMENTS AND SPECIFICATIONS 58
TERMINATION AND CANCELLATION 58
TIME IS OF THE ESSENCE 59
TIMELY PERFORMANCE 59
TITLE 59
TRADE-INS 59
TRAINING 60
TRANSPORTATION 60
UNIVERSAL DESIGN 61
WARRANTY 62
WORK DONE BY OTHERS 64
WORK HEREUNDER 64
SECTION B - SOFTWARE LICENSE
GENERAL 65
GRANT OF LICENSE 65
DOCUMENTATION UPDATES 65
ERROR CORRECTIONS 66
FORM OF ORDER 68
INSTALLATION OF SOFTWARE 68
SOFTWARE PRODUCT DELIVERY & INSTALLATION 69
RELOCATION OF SOFTWARE 70
RETURN OF SOFTWARE 71
RIGHT TO REPRODUCE GPS MATERIAL AND DOCUMENTATION 71
RISK OF LOSS 71
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
7
Agreement No. 980427
INDEX
Page 6 of 85
SECTION B - SOFTWARE LICENSE
SOFTWARE UPDATES 72
SOURCE AVAILABILITY AND SOURCE CODE ESCROW 73
SOURCE CODE 76
STANDARD OF PERFORMANCE 76
TITLE 77
USE OF THE SOFTWARE 77
USE OF PLATFORMS 77
WARRANTY 77
SECTION C - GPS MATERIAL MAINTENANCE SERVICES
GENERAL 80
ACCESS 80
BASIC SERVICE 80
ENGINEERING CHANGES 81
ESCALATION PROCEDURE 82
FORM OF ORDER 82
MAINTENANCE BY OTHERS 83
MAINTENANCE LOG 83
PARTS 83
PARTS INVENTORY 83
REMEDIAL MAINTENANCE 84
STORAGE AND WORK SPACE 84
TERM OF ORDER 85
TIME AND MATERIAL 85
SECTION D - HWM NETWORK SERVICES
GENERAL 86
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
8
Agreement No. 980427
INDEX
Page 7 of 85
SCOPE OF RESPONSIBILITY 86
ALARM MONITORING 90
SECTION E - ENTIRE AGREEMENT
ENTIRE AGREEMENT 91
Appendix I GPS Specifications
Appendix II Pricing
Appendix III Change Order
Appendix IV Executive Orders and Associated Regulations
Appendix V HWM's Quality Program Specifications
Exhibit A PRIME SUPPLIER MBE/WBE/DVBE PARTICIPATION PLAN
Exhibit B PARTICIPATION PLANS AND RESULTS REPORTS
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
9
Agreement No. 980427
SECTION A
Page 8 of 85
SECTION A - TERMS & CONDITIONS APPLICABLE TO ENTIRE AGREEMENT
PREAMBLE
This agreement ("Agreement") is made and entered into by and between
Southwestern ▇▇▇▇ Telephone Company, Pacific ▇▇▇▇, Nevada ▇▇▇▇ and Southern New
England Telephone (collectively "SBC") and HighwayMaster Corporation ("HWM") to
provide for acquisition, support and development of a Global Positioning
Satellite ("GPS") System and associated material ("GPS Material"). This
Agreement shall be effective as of the date of its execution by the last of the
parties hereto as defined below and, unless otherwise extended or terminated,
shall expire on December 31, 2001, whichever occurs first. SBC's liability for
HWM's costs and termination fees through the date of termination, as set forth
in the "Purchase Authorization" section below, shall survive termination or
expiration of this Agreement for any reason whatsoever, except for cancellation
of this Agreement as a result of HWM's failure to cure a material breach during
the applicable cure period (see, Termination and Cancellation paragraph).
Prior to delivery of Phase 2 requirements, only a failure to deliver GPS
Material failing to meet Phase 1 requirements as set forth in the GPS
specifications ("GPS Specifications"), attached hereto as Appendix I, and by
this reference made a part hereof (defined in the Deployment Schedule below) or
Installation services that do not conform with the GPS Specifications and are
materially defective will be considered a HWM material breach. With the
execution of this Agreement, Agreement No. 980374 will be replaced in its
entirety with this Agreement.
SCOPE OF AGREEMENT
This Agreement is applicable to the procurement by SBC from HWM of Global
Positioning System (GPS) material ("GPS Material") specified in Orders
submitted by SBC and any Software System and Services that have been announced
by HWM on or before the effective date hereof and, unless HWM notifies SBC to
the contrary, material, Software, Systems and Services available after such
effective date. The terms and conditions of this Section A will apply to all
other sections of this Agreement.
The provisions of this Agreement shall apply to all contracts entered into
between HWM and SBC during the term of this Agreement with respect to the GPS
Material and Services which are the subject of this Agreement unless the
parties expressly agree otherwise by a written modification to this Agreement,
signed by the persons who executed this Agreement or their authorized
representatives. In
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
10
Agreement No. 980427
SECTION A
Page 9 of 85
SCOPE OF AGREEMENT (CONTINUED)
the absence of such a modification to this Agreement or such separate
agreement, any terms in any other contract which are additional to, different
from or inconsistent with the provisions of this Agreement shall be deemed to
be void and of no effect whatsoever.
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]The prices quoted in
this Agreement are based on the services outlined in Phases 1, 2 and 3 below.
Pricing for future requirements, including development Phase 4 and beyond, will
be negotiated as they are defined.
DEFINITIONS
For the purposes of this Agreement, all terms defined herein will have the
meanings so defined, unless the context clearly indicates otherwise. A term
defined in the singular will include the plural and vice versa when the context
so indicates. As used in this Agreement, the following terms shall have the
definitions set forth below:
1. ACCEPTANCE DATE
"ACCEPTANCE DATE" MEANS THE LAST DAY OF AN ACCEPTANCE PERIOD IN WHICH
A PRODUCT HAS SUCCESSFULLY COMPLETED THE ACCEPTANCE TESTS. IF SBC
WAIVES THE ACCEPTANCE TEST(S) FOR ANY PRODUCT IN WRITING, THE
ACCEPTANCE DATE FOR SUCH PRODUCT WILL BE THE INSTALLATION DATE FOR
SUCH PRODUCT. FOR ANY MAINTENANCE, SUPPORT OR OTHER SERVICE FOR WHICH
AN ACCEPTANCE TEST IS NOT REQUIRED, THE ACCEPTANCE DATE WILL BE THE
EFFECTIVE DATE.
2. ACCEPTANCE PERIOD
"Acceptance Period" means a period of fifteen (15) consecutive
calendar days (or the period specified in the Order) during which the
Acceptance Test(s) for a Product is/are performed.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
11
Agreement No. 980427
SECTION A
Page 10 of 85
DEFINITIONS (CONTINUED)
3. ACCEPTANCE TEST
"Acceptance Test" means the performance and reliability demonstrations
and tests defined herein that must be successfully completed by a
Product during the Acceptance Period which may include but will not
necessarily be limited to: (1) successful completion of SBC's routine
business transactions, (2) tests, demonstrations or transactions
performed during any HWM benchmarking, and (3) any other tests,
demonstrations or transactions included or referenced in the GPS
Specifications or which are appropriate to determine whether the
Product conforms to the requirements of the GPS Specifications.
4. DELIVERY DATE
"Delivery Date" means the date by which all items and parts of the GPS
Material as ordered are delivered to the destination specified in the
applicable Order.
5. DOCUMENTATION
"Documentation" will include, but not be limited to, user and system
manuals, training materials in machine readable or printed form.
6. DOWNTIME
"Downtime" means that period of time during which a Product is not
operating in accordance with the requirements of an Order or the GPS
Specifications as defined herein through no fault of SBC. Unless
otherwise specified herein or in an Order accepted by HWM, downtime
for each malfunction will start when SBC contacts HWM's designated
representative at a prearranged contact point and will end when the
GPS Material is operating in accordance with the requirements of the
Order or GPS Specifications.
7. EFFECTIVE DATE
"Effective Date" means the date shown on an Order which is the
beginning date for such Order.
8. ENTERPRISE LICENSE
"Enterprise License" means Products may be used at any location, on
any platform and by any number of Users.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
12
Agreement No. 980427
SECTION A
Page 11 of 85
DEFINITIONS (CONTINUED)
9. FIELD ENGINEER
"Field Engineer" means a person in HWM's employ qualified to repair
GPS Materials in a timely and professional manner.
10. GPS MATERIAL
"GPS MATERIAL" means an in-vehicle monitoring system as more
specifically defined in the GPS Specifications Document attached
hereto but at a minimum consisting of:
-------------------------------------------------------------------------------------------------------------------
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT. THE OMITTED FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
13
Agreement No. 980427
SECTION A
Page 12 of 85
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request [Text has been omitted pursuant to a request
for confidential treatment. The omitted for confidential treatment. The omitted
material has been filed separately with the material has been filed separately with the
SEC.] SEC.]
-------------------------------------------------------------------------------------------------------------------
[Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the SEC.]
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
11. INSTALLATION ACCEPTANCE
"INSTALLATION ACCEPTANCE" for the purpose of this Agreement means only
the acceptance of the installation of the GPS Material and not the
acceptance of the GPS Material as such. Installation Acceptance shall
occur when the installed GPS Materials are demonstrated to SBC to be
operational through:
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
14
Agreement No. 980427
SECTION A
Page 13 of 85
DEFINITIONS (CONTINUED)
11. INSTALLATION ACCEPTANCE (CONTINUED)
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]12. INSTALLATION DATE
"Installation Date" means the date by which all components of a
Product or System are installed and prepared for Acceptance Tests at
the location specified in the applicable Order. The Installation Date
for Software and GPS Material includes delivery of Software, manuals
and supporting Documentation. The Installation Date may differ from
one Installation Site to another.
13. INSTALLATION SITE
"Installation Site" means the vehicle or work station location,
established by SBC, in which the GPS Material will reside. The
Installation Site(s) for each Product will be identified in the
applicable Order.
14. INTELLECTUAL PROPERTY
"Intellectual Property" means all copyrights, patents, mask works,
trade secrets, or other rights associated with any ideas, concepts,
techniques, inventions, processes, or works of authorship
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
15
Agreement No. 980427
SECTION A
Page 14 of 85
DEFINITIONS (CONTINUED)
15. LICENSE FEE
"License Fee(s)" means the fee associated with licensing of Product(s)
from HWM.
16. LICENSED SOFTWARE
"Licensed Software" means a standard computer program with respect to
which HWM has the right to grant SBC a license or sublicense to use
same. Licenses are granted as either perpetual or periodic, exclusive
or non-exclusive, for which HWM may or may not receive a License Fee.
Licensed Software also includes all associated Documentation.
17. ORDER
"Order" means an SBC document executed hereunder ordering GPS Materials
and/or Services and will be deemed to incorporate (1) the provisions of
this Agreement (including the Exhibits attached hereto), as it may from
time to time be amended, (2) the GPS Specifications applicable to such
Order and (3) any subordinate documents attached to or referenced in
this Agreement, such GPS Specifications or such Order. Each Order will
be deemed to be a separate and independent agreement between the
parties with respect to the subject matter thereof.
18. PREVENTIVE MAINTENANCE
"Preventive Maintenance" means maintenance performed or required to be
performed by HWM on a scheduled basis to keep the GPS Material in good
operating condition in accordance with the requirements of the
applicable Order. Preventive Maintenance, if applicable, will include
(1) calibration, testing, adjustments, cleaning, lubrication,
replacement of worn, defective or questionable parts, (2) maintenance
and engineering services necessary to retrofit or otherwise install
engineering changes, modifications and improvements (including the
latest engineering revision and all reliability improvements) approved
by HWM for SBC's configuration/environment as mutually agreed upon by
SBC and HWM and made to any GPS Material by HWM at any time during the
maintenance term for that GPS Material; and (3) automatic update
services for all manuals and Documentation furnished with any GPS
Material.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
16
Agreement No. 980427
SECTION A
Page 15 of 85
DEFINITIONS (CONTINUED)
19. PRINCIPAL PERIOD
"Principal Period" means a consecutive ten (10)-hour period daily,
Monday through Friday, excluding New Year's Day, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and Christmas Day that HWM will install or perform maintenance
services. Unless otherwise specified in the Order, such ten (10) hour
period will be from 8:00 p.m. to 6:00 a.m. based on the local time in
each SBC or Affiliated Company's city.
20. PRODUCT
"Product" means any GPS Material, Software or System acquired by SBC
hereunder as described herein.
21. PROGRAM MATERIAL
"Program Material" means all material associated with Software ordered
hereunder including, but not limited to, test data, flow charts,
Documentation, data file listings, input and output formats. Program
Material expressly excludes source code and source code listings.
22. REMEDIAL MAINTENANCE
"Remedial Maintenance" means maintenance performed by HWM which is
necessary to return inoperative or malfunctioning GPS Material to good
operating condition.
23. SERVICES
"Services" means any service specified in an Order including, but not
limited to, any programming service, Preventive Maintenance, Remedial
Maintenance, software maintenance, technical consultation services,
and support services.
24. SOFTWARE
"Software" means custom Software and Licensed Software, including any
associated compiled program, routine, subroutine translation,
compiler, diagnostic routine, control software, and firmware.
Software does not include source code, source code listings and
similar raw component formats.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
17
Agreement No. 980427
SECTION A
Page 16 of 85
DEFINITIONS (CONTINUED)
25. SYSTEM
"System" means any collection or aggregation of two (2) or more GPS
Materials designed to function, or represented by HWM as being capable
of functioning, as an entity.
ACCEPTANCE OF GPS MATERIAL AS SUCH
SBC reserves the right to accept or reject GPS Materials fifteen (15) days
after delivery at the location designated in the applicable order. If, prior
to Acceptance by SBC, any of the GPS Materials or Services are found to not be
in strict conformance with this Agreement, including the GPS Specifications,
SBC shall have the right: (a) to reject the GPS Materials or Services and,
after providing HWM with written notice and an opportunity to cure as set forth
in this Agreement, cancel the Agreement and any applicable order and return any
GPS Materials or (b) at its option (1) in the case of GPS Materials, require
that such GPS Materials be repaired or replaced promptly at HWM's risk and
expense (including freight charges) within thirty (30) days and (2) in the case
of Services, require the performance or reperformance of such Services.
Acceptance of GPS Materials by SBC shall be without prejudice to SBC's right to
revoke acceptance pursuant to the Uniform Commercial Code. SBC will conduct
and complete acceptance testing, using its best efforts to complete acceptance
for each phase, release or shipment on the day of delivery and installation.
In the event that acceptance is not possible on the day of installation, SBC
will provide a single contact person with authority to sign off on acceptance,
by region, and will use its best efforts to sign off on acceptance or rejection
within two (2) weeks after installation. SBC's acceptance testing will consist
of tests to determine whether the GPS Materials meet the GPS Specifications.
After acceptance of any phase, release or shipment, any subsequent failures of
the GPS Material to meet the GPS Specifications applicable to such phase or
release shall be handled under applicable warranty provisions.
IF HWM IS UNABLE TO DELIVER GPS MATERIAL THAT MEETS THE PHASE 1 SPECIFICATIONS
AS SET FORTH IN THE GPS SPECIFICATIONS, OR IS UNABLE TO INSTALL SUCH MATERIALS
IN ACCORDANCE WITH THE GPS SPECIFICATIONS, BY THE END OF THE APPLICABLE CURE
PERIOD FOR DELIVERY AND INSTALLATION OF PHASE 1 FUNCTIONALITY, SBC WILL HAVE
THE RIGHT TO RECEIVE A REFUND EQUAL TO 100% OF AMOUNTS
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
18
Agreement No. 980427
SECTION A
Page 17 of 85
ACCEPTANCE OF GPS MATERIAL AS SUCH (CONTINUED)
PAID TO HWM EXCEPT FOR NETWORK SERVICE CHARGES, UPON SBC'S RETURN OF THE GPS
MATERIAL IN GOOD WORKING ORDER, NORMAL WEAR AND TEAR EXCLUDED.
IF HWM IS UNABLE TO DELIVER AND INSTALL GPS MATERIAL THAT MEETS THE PHASE 2 AND
PHASE 3 SPECIFICATIONS AS SET FORTH IN THE GPS SPECIFICATIONS, BY THE END OF
THE APPLICABLE CURE PERIOD FOR DELIVERY AND INSTALLATION OF SUCH GPS MATERIAL,
SBC SHALL HAVE THE RIGHT TO REVOKE ITS PREVIOUS ACCEPTANCE AND RECEIVE A REFUND
EQUAL TO EIGHTY-FIVE PERCENT (85%) OF THE AMOUNTS PAID BY SBC TO HWM EXCEPT FOR
NETWORK SERVICE CHARGES, UPON SBC'S RETURN OF THE GPS MATERIAL IN GOOD WORKING
ORDER, NORMAL WEAR AND TEAR EXCLUDED.
ACCESS
SBC's Premises:
1. HWM shall when appropriate have reasonable access to SBC's premises
during normal business hours and at such other times as may be agreed
upon by the parties in order to enable HWM to perform its obligations
under this Agreement. HWM shall coordinate such access with SBC's
designated representative prior to visiting such premises. HWM
assures SBC that only persons employed by HWM or subcontracted by HWM
will be allowed to enter SBC's premises. If SBC requests HWM or it's
Subcontractor to discontinue furnishing any person provided by HWM or
it's Subcontractor from performing work on SBC's premises, HWM shall
immediately comply with such request. Such person shall leave SBC's
premises promptly and HWM shall not furnish such person again to
perform work on SBC's premises without SBC's written consent.
2. SBC may require HWM or its subcontractor employees to exhibit
identification credentials, which SBC may issue in order to gain
access to SBC's premises for the performance of Services hereunder.
If, for any reason, any HWM's or HWM's subcontractor employees are no
longer performing such Services, HWM shall immediately inform SBC.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
19
Agreement No. 980427
SECTION A
Page 18 of 85
ACCESS (CONTINUED)
Notification shall be followed by the prompt delivery to SBC of the
identification credentials, if issued by SBC, or a written statement
of the reasons why said identification credentials cannot be returned.
3. HWM shall ensure that its personnel and subcontractor perform work
which conforms to SBC's practices and handbooks to protect GPS
Material, buildings or structures and to perform Services with care
and due regard for the safety, convenience and protection of SBC, its
employees and property, and members of the public.
4. In the event of theft or loss of property attributable to HWM, HWM
shall replace the property and/or reimburse SBC for replacement value
of the item.
5. HWM shall be responsible for ensuring that all persons furnished by
HWM work harmoniously with all others when on SBC's premises.
AFFILIATED COMPANY
"Affiliated Company" as used herein will be any present or future subsidiary,
affiliate or parent company of SBC. Subject to acceptance of an Order by HWM,
in accordance with the Order Acceptance clause herein, any Affiliated Company
that places an Order with HWM hereunder may incorporate into such Order the
terms and conditions of this Agreement. Such Affiliated Company will be
responsible for its own obligations including, but not limited to, charges
incurred in connection with such Order. Nothing in this Agreement will be
construed as requiring SBC to indemnify HWM for any acts or omissions of any
Affiliated Company.
AMENDMENTS AND WAIVERS
This Agreement may be amended or modified only by a written document signed by
the authorized representative of the party against whom enforcement is sought.
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement shall be construed as a general waiver or
relinquishment of such term, right or condition. Waiver by either party of any
default shall not be deemed a waiver of any other default.
ASSIGNMENT
Neither party hereto may assign, subcontract or otherwise transfer it's rights
or obligations under this Agreement except with the prior written consent of
the other party hereto, which consent will not be unreasonably withheld;
provided, however, SBC will have the right to assign this Agreement to any
present or future AFFILIATE, SUBSIDIARY OR PARENT CORPORATION of SBC, without
securing the consent of HWM and may grant to any such assignee the same rights
and privileges SBC enjoys hereunder. Any attempted assignment not assented to
in the manner prescribed herein, except an assignment confined solely to money
due or to become due, will be void. It is expressly agreed that any assignment
of money will be void if (a) HWM fails to give SBC at least thirty (30) days
prior written notice thereof, or (b) such assignment imposes or attempts to
impose upon SBC additional costs or obligations in addition to the payment of
such money or (c) denies, alters or attempts to alter any of SBC's rights.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
20
Agreement No. 980427
SECTION A
Page 19 of 85
CABLES AND RELATED ITEMS
Each Order will be deemed to include, at no additional charge unless otherwise
specified, all cables necessary to operate all ordered Product at SBC's
Installation Site in accordance with the GPS Specifications. CELLULAR SERVICE
The actual cellular service for the purpose of this Agreement will be provided
by HWM as follows, in addition to the monthly Network Services fees as outlined
in Appendix II, Pricing, attached hereto and by this reference made a part
hereof:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]CELLULAR SERVICE
(CONTINUED)[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
CHANGES & SUSPENSIONS
1. SBC may, by notice to HWM at any time before complete delivery is made
under any Order, request changes via a written Change Order, attached
hereto as Appendix III, and by this reference made a part hereof
within the general scope of such Order, including changes to
quantities, drawings, designs or GPS Specifications. Within a
reasonable time of receipt of the written Change Order, HWM shall
provide SBC with a Response to the Change Order including at a minimum
the estimated changes to prices, delivery dates, and the feasibility
of the implementation of changes to the GPS Specifications. SBC and
HWM must agree in writing to acceptance of the Change Order, including
any adjustments in prices or dates necessitated thereby and shall
execute a written revised Order reflecting such adjustments.
2. HWM may not, under any circumstances, rely on oral modifications to
any Order made under this Agreement.
3. If HWM desires to modify the Products and/or Services specified in any
Order, HWM shall provide written notice to SBC of the requested
modifications. SBC shall provide a written response to the request
within fifteen (15) days of the date of receipt of the request from
HWM. SBC shall approve the request if the Products and/or Services,
as modified, conform to the GPS Specifications. SBC has the right to
test any new,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
21
Agreement No. 980427
SECTION A
Page 20 of 85
CHANGES & SUSPENSIONS
changed or revised Products and/or Services or have it tested by its
third party subcontractor prior to approval. If the Products and/or
Services do not conform to the GPS Specifications, SBC shall have the
right to reject such changes or modifications. In addition, SBC shall
reserve the right to determine whether a new software change is
applied.
CHANGES TO GPS MATERIAL
If HWM desires to modify the GPS Materials, HWM shall provide samples of the
GPS Materials and written notice to SBC of the requested modifications. SBC
shall provide a written response to the request within thirty (30) days of the
date of receipt of the request from HWM. SBC shall approve the request if the
GPS Materials, as modified, conform to the GPS Specifications. For purposes of
this clause, GPS Materials include GPS receiver, antenna, cellular Transceiver
and cellular antenna, microprocessor, handset, power supply, panic alarm, key
fob, modem and installation components such as the pedestal.
SBC has the right to test any new, changed or revised GPS Material or have it
tested by its third party subcontractor prior to approval. If the GPS Material
does not conform to the GPS Specifications, SBC shall have the right to reject
such changes or modifications. In addition, SBC shall reserve the right to
determine whether the new GPS Material is acceptable.
CLEAN UP
Upon completion of the installation of any Product hereunder, HWM will remove
promptly all HWM's tools, equipment, materials and debris from SBC's premises.
COMPLAINTS
SBC reserves the right to notify HWM in cases where SBC has identified current
or potential problems or service area concerning the operation, maintenance,
engineering, installation or design of GPS Material furnished hereunder.
Whenever SBC exercises such right, HWM agrees to:
1. Accept such notice (hereinafter referred to as an "Engineering Complaint")
and respond appropriately to resolve the Engineering Complaint. HWM agrees
to review the standards contained in ▇▇▇▇ Communications Research,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
22
Agreement No. 980427
SECTION A
Page 21 of 85
COMPLAINTS (CONTINUED)
Inc. ("Bellcore") technical publication GR-230-CORE, Issue 1,
September 1994, entitled "Engineering Complaints and Service Failure
Analysis Reports" during the ninety (90) days following the execution
of this Agreement so that it can determine whether it is feasible for
HWM to comply with these standards. If it is economically and
operationally feasible for HWM to comply with the Bellcore standards
without material additional operational expense on HWM's part, HWM
agrees to use its best effort to comply.
2. Acknowledge receipt of such Engineering Complaint and advise SBC of
HWM's proposed organization responsible for resolving it within ten
(10) working days of HWM's receipt thereof.
3. Resolve such Engineering Complaints within ninety (90) days calendar
days of the date of SBC's notice, unless a later date is mutually
agreed upon by the parties. If unable to resolve an Engineering
Complaint within said ninety (90)-day period, HWM will issue an
"interim report" as defined in GR-230-CORE.
4. Furnish to SBC a monthly report of the status of open Engineering
Complaints, in a mutually agreed upon medium, together with a proposed
schedule for their resolution.
5. Notify SBC in writing when an Engineering Complaint has been resolved.
COMPLIANCE WITH LAWS
HWM shall comply with the provisions of the Fair Labor Standards Act, the
Occupational Safety and Health Act and all other applicable federal, state,
county and local laws, ordinances, regulations and codes, including, but not
limited to, the procurement of permits, certificates, approvals, inspections
and licenses when needed, in the performance of this Agreement.
Southwestern ▇▇▇▇ Telephone Company, Pacific ▇▇▇▇, and Nevada ▇▇▇▇, as common
carriers of telecommunications services, work as contractors for various
departments and agencies of the United States Government, and, for that reason,
work under their agreements may be subject to certain Executive Orders, laws ,
and associated regulations. To the extent that such Executive Orders, laws,
and associated regulations apply to work under this agreement, and only to that
extent, HWM agrees to comply with the provisions of Appendix IV, Executive
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
23
Agreement No. 980427
SECTION A
Page 22 of 85
COMPLIANCE WITH LAWS (CONTINUED)
Orders and Associated Regulations attached hereto and by this reference made a
part hereof.
CONFLICT OF INTEREST
HWM represents and warrants that no officer, director, employee or agent of SBC
has been or will be employed, retained or paid a fee, or otherwise has received
or will receive any personal compensation or consideration, by or from HWM or
any of HWM's officers, director's employees or agents in connection with the
obtaining, arranging or negotiation of this Agreement or other documents or
agreements entered into or executed in connection herewith.
CONTINUING AVAILABILITY OF PARTS, MAINTENANCE AND TECHNICAL SUPPORT SERVICES
1. HWM agrees to offer for sale to SBC for a period of five (5) years
after the Termination, Cancellation or expiration date of this
Agreement, functionally equivalent additions/modifications,
maintenance, replacement, and technical support services at HWM's then
current rates for said parts and/or services,
2. If HWM fails or is unable to supply such parts or obtain another
source of supply for SBC, then such inability shall be considered
noncompliance with this Section and, in addition to whatever other
rights and remedies SBC may have at law or in equity, HWM shall be
obligated to provide SBC, without obligation or charge, with limited,
nonexclusive license to the "technical information" or any other
rights required so that SBC can have manufactured or can obtain such
parts from other sources. No right of sublicense is granted herein.
3. The "technical information" includes, by example and not by way of
limitation:
a. manufacturing drawings and GPS Specifications of raw materials
and components comprising such parts;
b. manufacturing drawings and GPS Specifications covering special
tooling and the operation thereof;
c. a detailed list of all commercially available parts and
components purchased by HWM, disclosing the part number,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
24
Agreement No. 980427
SECTION A
Page 23 of 85
CONTINUING AVAILABILITY OF PARTS, MAINTENANCE AND TECHNICAL SUPPORT SERVICES
(CONTINUED)
name and location of the supplier and price lists for the purchase
thereof.
4. HWM shall provide support for System Software or System Software
Features provided under this Agreement. In the event HWM refuses to
provide support then HWM shall grant to SBC a non-exclusive license,
without charge, to use such System Software programs, System Software
documentation and/or System Software tools and other technical
information as may be required for the purpose of so maintaining the
System Software and to provide for network compatibility. No right of
sublicense is granted to SBC.
5. HWM shall provide SBC advance written notification no later than two
(2) years prior to the discontinuance of the manufacture or the
provision of any GPS Material hereunder.
CURE
SBC will not be deemed to be in default under any of the terms of this
Agreement, and HWM may not seek or attempt to enforce any remedy for any
claimed default, unless SBC fails to cure or correct same within thirty (30)
days following receipt of written notice thereof from HWM.
DELIVERY
HWM agrees to make its best efforts barring complication in procuring parts to
have at least eleven thousand five hundred (11,500) GPS Units installed by
December 29, 1998. HWM further agrees to keep SBC informed, in writing, of any
delays in meeting this schedule.
HWM agrees to deliver all GPS Material on the Delivery Dates and to the
Installation Sites specified in the applicable Orders. SBC may request
delivery in advance of the Delivery Date specified in an Order by notifying HWM
in writing to that effect at least thirty (30) days prior to the specified
Delivery Date. If such advanced delivery is accepted by HWM, SBC will amend
the Order accordingly.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
25
Agreement No. 980427
SECTION A
Page 24 of 85
DELIVERY (CONTINUED)
At any time, but not less than thirty (30) days prior to the Delivery Date
specified in an Order, SBC, by written notification to HWM, may delay such
Date, for a period not to exceed thirty (30) days. HWM will assume full
responsibility for dealing with carriers to insure timely delivery of its
shipments, locate missing or late shipments, resolve billing for transportation
charges and submit and resolve all insurance claims arising from damage to its
shipments.
DEPLOYMENT SCHEDULE AND PHASED IMPLEMENTATION
GPS MATERIAL INSTALLATION
HWM shall begin installation of the eleven thousand five hundred
(11,500) GPS Units on September 15, 1998. HWM will use its best
efforts to deliver and install the units by December 29, 1998. [Text
has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.] Prices for
installation are shown on Appendix II, and should be combined on the
invoice with the GPS Material upon completion of Installation
Acceptance. SWBT will remit to HWM payment in full as outlined in the
clause entitled Prices and Payment. Installation Acceptance shall be
completed within two (2) weeks of delivery and installation of such
shipment. HWM will deploy installers who will be dedicated an average
of eight (8) hours per day, five (5) days per week.
PHASES
This clause describes the basic requirements and development items for
the SBC GPS System. HWM and SBC agree to complete the GPS
Specifications that will provide the functionality specified below for
Phases 1, 2, and 3 as per the dates specified below:
1. HWM will develop and present their complete thorough GPS
Specification to SBC by September 12, 1998.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
26
Agreement No. 980427
SECTION A
Page 25 of 85
DEPLOYMENT SCHEDULE AND PHASED IMPLEMENTATION (CONTINUED)
2. SBC will review and provide comments to HWM on the GPS
Specifications by September 22, 1998.
3. SBC and HWM will meet to resolve any disputes in the GPS
Specifications.
Each party agrees to devote the necessary resources to complete the GPS
Specifications.
If HWM and SBC cannot resolve any disputes remaining after 3, above,
HWM's decision will prevail. However, SBC has the right to escalate
the dispute directly to a single arbitrator (in accordance with the
provisions specified in the paragraph of this Agreement called
"Disputes and Dispute Resolution") to present its case that HWM's
omission of a GPS Specification is, or inclusion of a GPS
Specification is not, necessary to meet the GPS System functionality.
HWM represents and warrants that the GPS Specifications will meet the
functionality for Phases 1, 2 and 3.
Once the GPS Specifications are complete and are executed by both
parties, the GPS Specifications will control over any discrepancies or
ambiguities between the RFP and the Phase 1, 2 and 3 descriptions in
this Agreement.
In developing the GPS Specifications, the parties agree that the scope
and functionality of the GPS Material will not expand beyond that set
forth in Phases 1, 2 and 3 herein and in the product specification
document which is attached hereto . Any additional or subsequent
changes will only be made upon the mutual agreement of the parties and
will be treated as a Change Order, subject to the payment of
additional development and/or product fees to HWM if SBC requests
expanded functionality.
HWM agrees to provide the following requirements and functionality as generally
described below and more specifically described in the GPS Specifications
Document attached to this Agreement:
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
27
Agreement No. 980427
SECTION A
Page 26 of 85
DEPLOYMENT SCHEDULE AND PHASED IMPLEMENTATION (CONTINUED)
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
DEPLOYMENT SCHEDULE AND PHASED IMPLEMENTATION (CONTINUED)[TEXT HAS BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SEC.]
Should HWM not meet the requirements outlined under Phase 2 above, by
delivering the software enhancements necessary to meet the GPS Specifications
to provide such requirements and making it available for Installation by
January 15, 1999, or within a period of thirty (30) days thereafter then, in
addition to all other remedies provided under this Agreement or at law, HWM
agrees to credit or refund SWBT as liquidated damages and not as a penalty, an
amount equal to ten thousand dollars ($10,000) for each month after January,
1999, during any portion of which the delay continues.
Should HWM not meet the requirements outlined under Phase 3 above, by
delivering the software enhancements necessary to meet the GPS Specifications
to provide such requirements and making it available for Installation by
January 15, 1999, or within a period of thirty (30) days thereafter then, in
addition to all other remedies provided under this Agreement or at law, HWM
agrees to credit or refund the entities of Pacific ▇▇▇▇ and Nevada ▇▇▇▇ as a
whole, as liquidated damages and not as a penalty, an amount equal to ten
thousand dollars ($10,000) for each month after January, 1999, during any
portion of which the delay continues. If HWM should fail to meet this date
through no fault of its own, such as an unforeseen issue, non-performance or
failure of cooperation related to a third party (such as Nokia), the above
liquidated damage clause would not be applicable, and HWM's Delivery Dates
shall be extended in proportion to such delay by a third party.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
28
Agreement No. 980427
SECTION A
Page 27 of 85
DISPUTES AND DISPUTE RESOLUTION
Any dispute arising out of or relating to this Agreement or the breach,
Termination, or validity thereof, not settled within thirty (30) days of
written notice of such dispute, shall be settled by arbitration in accordance
with the then current Center for Public Resources Rules for Non-Administered
Arbitration of Business Disputes by three independent and impartial
arbitrators, of whom each party shall appoint one and the two appointed
arbitrators shall pick a third arbitrator. The arbitration shall be governed
by the United States Arbitration Act, 9 U.S.C. Sections 1-16 and judgment upon
the award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be San Ramon, California,
St. Louis, Missouri, or Dallas, Texas, or their environs at the discretion of
the party requesting arbitration. The arbitrators are not empowered to award
damages in excess of compensatory damages and each party hereby irrevocably
waives any right to recover such damages with respect to any dispute resolved
by arbitration. Final and binding arbitration in accordance with the
procedures specified in this Section shall be the sole and exclusive procedure
for the resolution of any such disputes.
DOCUMENTATION
HWM will provide, at no additional cost to SBC, at least two (2) copies of each
update or revision to such original Documentation to each Installation Site and
SBC's General Headquarters. Additional copies of such Documentation will be
furnished at the then current per copy prices as specified in HWM's price list.
SBC will have the right to reproduce all printed material, Documentation, and
manuals supplied by HWM hereunder, provided that such reproduction is made
solely for SBC's internal use hereunder and includes any HWM copyright notice
contained in the original item being reproduced.
SBC may modify any Documentation for its own use and at its own expense to meet
its specific requirements.
EMERGENCY EQUIPMENT
HWM agrees to make every reasonable effort to assist SBC in locating GPS
Material compatible with that furnished by HWM hereunder in the event of an
emergency, such as a major breakdown, fire or other disaster.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
29
Agreement No. 980427
SECTION A
Page 28 of 85
EMERGENCY EQUIPMENT (CONTINUED)
SBC, at its option, may accept or reject an offer by HWM to use emergency or
substitute GPS Material. If accepted, the charge for such use, if any, will be
a limited arrangement between SBC and HWM until permanent replacement GPS
Material is installed and accepted.
ENGINEERING, DESIGN AND DEVELOPMENT SERVICES
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.] [Text has been
omitted pursuant to a request for confidential treatment. The omitted material
has been filed separately with the SEC.]
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
FOB
GPS Material purchased hereunder will be shipped FOB Destination, prepay and
add, in accordance with the requirements of the clauses herein entitled
SHIPPING AND BILLING and TRANSPORTATION.
FORCE MAJEURE
1. Neither party shall be deemed in default of this Agreement or any
Order to the extent that any delay or failure in the performance of
its obligations results from any cause beyond its reasonable control
and without its fault or negligence, such as acts of God, acts of
civil or military authority, embargoes, epidemics, war, riots,
insurrections, fires, explosions, earthquakes, floods, unusually
severe weather conditions or strikes.
2. If any Force Majeure condition occurs, HWM shall give immediate notice
to SBC and SBC may elect to either: (1) terminate the affected
Order(s) or any part thereof, (2) suspend the affected Order(s) or any
part thereof for the duration of the Force Majeure condition, with the
option to obtain elsewhere GPS Material and Services to be furnished
under such Order(s) and deduct from any commitment under such Order(s)
the quantity of the GPS Material and Services obtained or for which
commitments have been made elsewhere or (3) resume performance under
such Order(s) once the Force Majeure condition ceases, with an option
in SBC to extend any affected delivery or performance date up to the
length of time the Force Majeure condition endured. Unless SBC gives
written notice within thirty (30) days after being notified of the
Force Majeure condition, option (2) shall be deemed selected.
3. Failure of HWM's subcontractors or suppliers to deliver GPS Material
or perform Services shall not be deemed a Force Majeure condition
unless such failure or delay is a result of a Force Majeure
experienced by HWM's subcontractors or suppliers.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
30
Agreement No. 980427
SECTION A
Page 29 of 85
GOVERNING LAW
1. With respect to Pacific ▇▇▇▇ and Nevada ▇▇▇▇, this Agreement and
performance hereunder shall be governed by the laws of the state of
California. With respect to Southwestern ▇▇▇▇ Telephone Company, this
Agreement and performance hereunder shall be governed by the laws of
the state of Missouri. With respect to Southern New England
Telephone, this Agreement and performance hereunder shall be governed
by the laws of the state of Connecticut.
2. This Agreement shall be considered completed, entered into, and
executed in California on behalf of Pacific ▇▇▇▇ and Nevada, in
Missouri on behalf of Southwestern ▇▇▇▇ Telephone Company and
Connecticut on behalf of Southern New England Telephone.
GRADE OF SERVICE
The parties agree to develop minimum performance standards to which the GPS
Materials comply. [Text has been omitted pursuant to a request for
confidential treatment. The omitted material has been filed separately with the
SEC.]
GSM FOR PACIFIC ▇▇▇▇
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
GSM FOR PACIFIC ▇▇▇▇ (CONTINUED)[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH
THE SEC.]If HWM should fail to meet this date through no fault of its own, such
as an unforeseen issue related to a third party or lack of necessary
cooperation by SBC or its affiliates, the above liquidated damage clause would
not be applicable.
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
31
Agreement No. 980427
SECTION A
Page 30 of 85
HAZARDOUS MATERIALS AND REGULATED SUBSTANCES
A "Regulated Substance" as referenced in this clause is a generic term used to
describe all materials that are regulated by the federal or any state or local
government during transportation, handling and/or disposal. This includes, but
is not limited to, materials that are regulated as (a) "hazardous materials"
under the Hazardous Materials Act and the Control of Radioactive Contamination
of the Environment Law, Title 8 of the California Administrative Code, Section
5194, pursuant to the Hazardous Substances Information and Training Act, (b)
"chemical hazards" under Occupational Safety and Health Administration (OSHA)
standards, (c) "chemical substances or mixtures" under the Toxic Substances
Control Act, (d) "pesticides" under the Federal Insecticide, Fungicide and
Rodenticide Act, and (e) "hazardous wastes" as defined or listed under the
Resource Conservation and Recovery Act and the Hazardous Waste Control Law.
1. HWM shall comply with all applicable federal, state and local
laws, ordinances, codes, regulations and orders, including any
notice requirements (individually and collectively "Laws and
Regulations"), regarding any Material and Service ordered
hereunder which involves the handling or use of Materials or
materials which consist of or contain "hazardous materials" or
"chemical hazards" or "chemical substances or mixtures" or
"pesticides" or "hazardous wastes". HWM shall notify SBC and
provide to SBC all necessary notification and other
information (including but not limited to OSHA Material Safety
Data Sheets) at least thirty (30) days before shipping such
Regulated Substances to SBC or commencing the performance of
Services for SBC involving the handling or use of Regulated
Substances.
2. Notwithstanding any other provisions of this Agreement, SBC
shall have the right, but not the duty, to terminate without
liability any Order for Materials or Services which involves
the handling or use of Regulated Substances within thirty (30)
days after such notification from HWM. Otherwise, SBC and HWM
shall cooperate concerning the acceptance by SBC of such
Regulated Substances. HWM shall ▇▇▇▇ all Materials and/or
materials provided hereunder as Regulated Substances which are
required by all applicable Laws and Regulations to be so
marked, and shall provide assistance to SBC of an advisory
nature in the handling or use of Regulated
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
32
Agreement No. 980427
SECTION A
Page 31 of 85
HAZARDOUS MATERIALS AND REGULATED SUBSTANCES (CONTINUED)
Substances provided hereunder and the disposal of "hazardous
wastes", as defined by applicable Laws and Regulations
("Hazardous Wastes"), resulting therefrom.
3. Regulated Substances and/or Hazardous Wastes provided or
removed hereunder shall be transported by HWM in accordance
with the requirements of the applicable Laws and Regulations,
including, but not limited to, those of the Department of
Transportation and California Highway Patrol, governing
transportation of such Regulated Substances and/or Hazardous
Wastes.
4. HWM shall provide SBC with the same information pertaining to
Materials and Services which involve the handling or use of
Regulated Substances or Hazardous Wastes as HWM provides to
HWM's employees or agents involved in the disposition or
treatment of such Regulated Substances or Hazardous Wastes.
5. HWM further agrees to defend, indemnify and hold SBC harmless
from and against any damage, or expense (including attorneys'
fees and court costs) sustained by SBC because of HWM's
noncompliance herewith.
HEADINGS
Article, section or paragraph headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
HWM'S LIMITATION
EXCEPT FOR INDEMNITY AND INFRINGEMENT INDEMNITY OBLIGATIONS, SBC'S DAMAGES AND
HWM'S LIABILITY FOR DAMAGES UNDER ALL ORDERS SHALL BE LIMITED TO A REFUND OF
THE AMOUNTS PAID BY SBC FOR THE AFFECTED PRODUCT OR SERVICES. NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
INCLUDING LOST PROFITS.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
33
Agreement No. 980427
SECTION A
Page 32 of 85
INDEPENDENT CONTRACTOR
HWM hereby declares and represents that HWM is engaged in an independent
business and shall perform its obligations under this Agreement as an
independent contractor and not as the agent or employee of SBC; that the
persons performing services hereunder are not agents or employees of the SBC;
that HWM has and hereby retains the right to exercise full control of and
supervision over the performance of HWM's obligations hereunder and full
control over the employment, direction, compensation and discharge of all
employees assisting in the performance of such obligations; that HWM shall be
solely responsible for all matters relating to payment of such employees,
including compliance with workers' compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and local
laws, rules and regulations governing such matters; and that HWM shall be
responsible for HWM's own acts and omissions and those of HWM's agents,
employees and contractors during the performance of HWM's obligations under
this Agreement.
INFRINGEMENT
HWM agrees to indemnify and hold SBC harmless from and against any loss,
liability, damage or expense (including increased damages for willful
infringement, punitive damages, attorneys' fees and court costs) that may
result by reason of any infringement, or claim of infringement, of any trade
secret, patent, trademark, copyright or other proprietary interest of any third
party based on the normal use or installation of any GPS Material, Software,
Documentation, or program furnished to SBC hereunder, except to the extent that
such claim arises from HWM's compliance with SBC's detailed instructions. Such
exception will not, however, include:
1. Merchandise available on the open market or the same as such
merchandise.
2. Items of HWM's origin, design or selection.
HWM warrants that it has made reasonable independent investigation (including
obtaining legal opinions) to determine the legality of its right to produce and
sell the GPS Material/Equipment provided herein.
If an injunction or order is obtained against SBC's use of any GPS Material,
Software, Documentation, or program, or if in HWM's opinion any GPS Material,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
34
Agreement No. 980427
SECTION A
Page 33 of 85
INFRINGEMENT (CONTINUED)
Software, Documentation, or program is likely to become the subject of a claim
of infringement, HWM will, at its expense:
1. Procure for SBC the right to continue using the GPS Material,
Software, Documentation, program; or
2. After consultation with SBC, replace or modify the GPS
Material, Software, Documentation, program or Service to make
it a substantially similar, functionally equivalent,
non-infringing GPS Material, Software, Documentation, program.
If the GPS Material, Software, Documentation, or program is purchased or
licensed and neither (1) or (2) above is possible, SBC may cancel the
applicable Order and require HWM to remove such GPS Material, Software,
Documentation, or program from SBC's location and refund on a prorated basis at
a rate of twenty percent (20%) per year for any charges paid therefor by SBC.
In no event will SBC be liable to HWM for any charges after the date that SBC
no longer uses and GPS Material, Software, Documentation, or program because of
actual or claimed infringement.
Each party hereto agrees to defend or settle, at its own expense, any action or
suit against the other party hereto for which it is responsible under this
clause. Each party further agrees to notify the other party promptly of any
claim of infringement for which the other party is responsible hereunder and
cooperate in every reasonable way to facilitate the defense thereof.
In the event that HWM, after notification of any claim for which HWM is
responsible, does not assume the defense of such action, HWM will reimburse SBC
for all of its costs incurred in the defense of the claim, including, but not
limited to attorneys' fees and interest on such SBC's payment of said amounts
from the date of SBC's payments of said amounts.
INSPECTION
When so stated in SBC's Order, HWM agrees to (a) notify SBC or SBC's agent when
GPS Material is ready for inspection, (b) give SBC such reasonable opportunity
to inspect such GPS Material at any time prior to the scheduled shipment date,
and (c) provide without charge any production testing facilities and
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
35
Agreement No. 980427
SECTION A
Page 34 of 85
INSPECTION (CONTINUED)
personnel required to inspect the GPS Material under the inspection
instructions specified. Purchase of any GPS Material under this Agreement is
subject to SBC's inspection and acceptance after delivery. It is mutually
agreed that SBC or SBC's agent may develop inspection instructions which will
be made a part of this Agreement at a later date by written agreement of the
parties. Inspection or failure to inspect on any occasion will not affect
SBC's rights under warranty or other provisions of this Agreement.
INSTALLATION
HWM agrees to install, at the price specified in Appendix II, Pricing, all GPS
Material ordered hereunder, including all necessary cabling, connection with
SBC-supplied power, utility and communications services, and in all other
respects make the GPS Material ready for operational use.
The GPS Material will be deemed installed and ready for operational use at the
conclusion of a successful Acceptance Test performed at the Installation Site
which demonstrates that the GPS Material meets minimum design capabilities.
HWM will provide SBC with written documentation of the successful Acceptance
Test and certify, by the Installation Date, that the GPS Material is ready for
operational use in accordance with SBC's Order. HWM's General Installation
and Testing Requirements are included in GPS Specifications.
INSURANCE
With respect to performance hereunder, and in addition to HWM's obligation to
indemnify, HWM agrees to maintain, at all times during the term of this
Agreement, the following minimum insurance coverages and limits and any
additional insurance and/or bonds required by law:
1. Workers' Compensation insurance with benefits afforded under
the laws of the state in which the Services are to be
performed and Employers Liability insurance with minimum
limits of $100,000 for Bodily Injury-each accident, $500,000
for Bodily Injury by disease-policy limits and $100,000 for
Bodily Injury by disease-each employee.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
36
Agreement No. 980427
SECTION A
Page 35 of 85
INSURANCE (CONTINUED)
2. Commercial General Liability insurance with minimum limits of:
$2,000,000 General Aggregate limit; $1,000,000 each occurrence
sub-limit for all bodily injury or property damage incurred in any one
occurrence; $1,000,000 each occurrence sub-limit for Personal Injury
and Advertising; $2,000,000 Products/Completed Operations Aggregate
limit, with a
$1,000,000 each occurrence sub-limit for Products/Completed
Operations. Fire Legal Liability sub-limits of $300,000 are required
for lease agreements.
3. Southwestern ▇▇▇▇ Telephone Company AND Pacific ▇▇▇▇ will be named as
an Additional Insured on the Commercial General Liability policy.
4. If use of a motor vehicle is required, Automobile Liability insurance
with minimum limits of $1,000,000 combined single limits per
occurrence for bodily injury and property damage, which coverage shall
extend to all owned, hired and non-owed vehicles.
5. SBC requires that companies affording insurance coverage have a B+ VII
or better rating, as rated in the A.M. Best Key rating Guide for
Property and Casualty Insurance Companies.
A certificate of insurance stating the types of insurance and policy limits
provided the HWM must be received prior to commencement of any work. The HWM
shall also require all subcontractors who may enter upon the work site to
maintain the same insurance requirements listed above.
LIABILITY
HWM shall indemnify, defend and hold harmless SBC (including its agents,
employees, officers, and directors) from and against any and all liability,
loss, damage, court cost, attorneys' fees or other expense of any kind which
arises out of any claim, demand, suit for damages, injunction or other relief,
on account of (a) injury to or death of any person, (b) damage to any property,
including theft, (c) public charges and penalties, or (d) any lien, caused by,
or resulting from the acts or omissions of the HWM (including any of its HWMs,
agents, or subcontractors but excepting the negligence or willful misconduct
solely of SBC or its employees) in furnishing the GPS Materials or Services
hereunder. This
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
37
Agreement No. 980427
SECTION A
Page 36 of 85
LIABILITY (CONTINUED)
indemnity shall survive the delivery, inspection and acceptance of the GPS
Materials or Services hereunder. HWM agrees to defend SBC, at no cost or
expense to SBC, against any such liability, claim, demand, suit or legal
proceeding. SBC agrees to notify HWM within a reasonable time of any written
claims or demands against SBC for which HWM is responsible under this clause.
LICENSES & PATENTS
No licenses, express or implied, under any patents are granted by SBC to HWM
under this Agreement.
M/WBE-DVBE PARTICIPATION PLANS AND REPORTS
HWM commits to goals for the participation of M/WBE and DVBE firms (as defined
in the Section entitled "MBE/WBE/DVBE Cancellation Clause) as follows: 0%
annual MBE participation; 0% annual WBE participation; and 0% annual DVBE
participation. These goals apply to all annual expenditures by any entity
pursuant to this Agreement with HWM.
Attached hereto and incorporated herein as Exhibit A is HWM's completed Prime
Contractor MBE/WBE/DVBE Commodity Product Subcontracting Plan outlining its
M/WBE-DVBE goals and specific and detailed plans to achieve those goals. HWM
will submit an updated Participation Plan annually by the first week in
January. HWM will submit M/WBE-DVBE Results Reports quarterly by the end of
the first week following the close of each quarter, using the form attached
hereto and incorporated herein as Exhibit B, Participation Plans and Results
Reports will be submitted to the Prime Supplier Results Manager.
MBE/WBE/DVBE CANCELLATION
1. HWM agrees that falsification or misrepresentation of, or failure to
report a disqualifying change in, the MBE/WBE/DVBE status of HWM or
any subcontractor utilized by HWM; or HWM's failure to cooperate in
any investigation conducted by SBC, or by SBC's agent, to determine
HWM's compliance with this section, will constitute a material breach
of this
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
38
Agreement No. 980427
SECTION A
Page 37 of 85
MBE/WBE/DVBE CANCELLATION (CONTINUED)
Agreement. In the event of any such breach, SBC may, at its option,
cancel ("Cancel") this Agreement upon twenty (20) days notice. HWM
acknowledges and agrees that SBC's right to Cancel is absolute and
unconditional, and SBC shall not be subject to liability, nor shall
HWM have any right to suit for damages as a result of such
cancellation.
2. For purchases under this Agreement by Pacific ▇▇▇▇, Pacific ▇▇▇▇
Directory, Pacific ▇▇▇▇ Mobile Services, Pacific ▇▇▇▇ Information
Services, Pacific ▇▇▇▇ Communications, and any other entity operating
principally in California (collectively "California Affiliates"),
Minority and Women Business Enterprises (MBEs/WBEs) are defined as
businesses which satisfy the requirements of paragraph 3. below and
are certified as MBEs/WBEs by the California Public Utilities
Commission Clearinghouse ("CPUC-certified"). For purchases under this
Agreement by any entity that is not a California Affiliate, MBEs/WBEs
are defined as businesses which satisfy the requirements of paragraph
3. below and are either CPUC-certified or are certified as MBEs/WBEs
by a certifying agency recognized by SBC.
3. MBEs/WBEs must be at least 51% owned by a minority individual or group
or by one or more women (for publicly- held businesses, at least 51%
of the stock must be owned by one or more of those individuals), and
the MBEs/WBEs' management and daily business operations must be
controlled by one or more of those individuals, and these individuals
must be either U.S. citizens or legal aliens with permanent residence
status. For the purpose of this definition, minority group members
include male or female Asian Americans, Black Americans, Filipino
Americans, Hispanic Americans, Native Americans (i.e., American
Indians, Eskimos, Aleuts and Native Hawaiians), Polynesian Americans,
and multi-ethnic (i.e., any combination of MBEs and WBEs where no one
specific group has a 51% ownership and control of the business, but
when aggregated, the ownership and control combination meets or
exceeds the 51% rule). "Control" in this context means exercising the
power to make policy decisions. "Operate" in this context means
actively involved in the day-to-day management of the business and not
merely acting as officers or directors.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
39
Agreement No. 980427
SECTION A
Page 38 of 85
MBE/WBE/DVBE CANCELLATION (CONTINUED)
4. For purchases under this Agreement by California Affiliates, Disabled
Veteran Business Enterprises (DVBEs) are defined as business concerns
that satisfy the requirements of paragraph 5 below and are certified
as DVBEs by the California State Office of Small and Minority Business
(OSMB). The DVBE must be a resident of the State of California, and
must satisfy the requirements of paragraph 5 below. For purchases
under this Agreement by any entity that is not a California Affiliate,
DVBEs are defined as any business concern that satisfies the
requirements of paragraph 5 below and is either a defined DVBE for
purchases by California Affiliates, or is certified as a DVBE by a
certifying agency recognized by SBC.
5. The DVBE must be (1) a sole proprietorship at least 51% owned by one
or more disabled veterans; or (2) a publicly-owned business in which
at least 51% of the stock is owned by one or more disabled veterans;
or (3) a subsidiary which is wholly owned by a parent corporation, but
only if at least 51% of the voting stock of the parent corporation is
owned by one or more disabled veterans; or (4) a joint venture in
which at least 51% of the joint venture's management and control and
earnings are held by one or more disabled veterans. In each case, the
management and control of the daily business operations must be by one
or more disabled veterans. A disabled veteran is a veteran of the
military, naval or air service of the United States with a service-
connected disability. "Management and control" in this context means
exercising the power to make policy decisions and actively involved in
the day-to-day management of the business and not merely acting as
officers or directors.
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
40
Agreement No. 980427
SECTION A
Page 39 of 85
MOST FAVORED CUSTOMER (CONTINUED)
HWM shall review and certify its compliance with this clause to SBC annually.
Should such annual review indicate that SBC has not received the treatment to
which SBC is entitled, HWM shall provide SBC with GPS Material and/or Service
credits sufficient to fully compensate SBC for differences.
NO THIRD PARTY BENEFICIARIES
The provisions of this Agreement are for the benefit of the parties and not for
any other person.
NON-EXCLUSIVE MARKET RIGHTS
It is expressly understood and agreed that this Agreement does not grant HWM an
exclusive privilege to provide to SBC any or all GPS Material and Services of
the type described in this Agreement. It is, therefore, understood that SBC
may contract with other manufactures and suppliers for the procurement or trial
of comparable products and services and that SBC may itself perform the
Services described herein.
NON-INTERVENTION
In connection with the provision of GPS Material and Services by HWM to SBC,
HWM agrees that HWM, either directly or indirectly, shall not intentionally
attempt to influence any regulatory, legislative, or judicial body so as to,
prevent, or delay the offering of products or services by SBC which utilize the
GPS Material or Services supplied by HWM.
NON-WAIVER
No course of dealing or failure of either party to enforce strictly any term,
right or condition of this Agreement will be construed as a waiver of such
term, right or condition. The waiver by any party hereto of any default of any
other party hereto hereunder will not be deemed a waiver of any other prior or
subsequent defaults of any other party hereto. The express provision herein
for certain rights and remedies of the parties hereto are in addition to any
other legal and equitable rights and remedies to which the parties hereto
would otherwise be entitled.
NOTICES
Unless otherwise specifically provided in this Agreement or in any applicable
Order, all notices required or permitted by this Agreement shall be in writing
and may be delivered personally via courier or overnight delivery service, or
may be sent by facsimile or registered mail, return receipt requested, to the
following addresses, unless the parties are subsequently notified of any change
of address in accordance with this Section:
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
41
Agreement No. 980427
SECTION A
Page 40 of 85
If to HighwayMaster:
HighwayMaster Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to SBC:
SBC
▇▇▇▇ ▇▇▇▇, ▇-▇-▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Affiliate:
(Affiliate Name)
(Affiliate Street Address)
(Affiliate City State Zip)
(Attention: Affiliate Contact Person)
Facsimile: (Affiliate Fax Number)
Any notice shall be deemed to have been received as follows: (1) by personal
delivery upon receipt; (2) by facsimile upon receipt; (3) by certified mail,
five (5) business days after delivery to the U.S. postal authorities by the
party serving notice. If notice is sent by facsimile, a confirming copy of the
same shall be sent by mail to the same address.
The address to which notices or communications may be given by either party may
be changed by written notice given by such party to the other pursuant to this
paragraph entitled "Notices".
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
ORDER ACCEPTANCE
HWM agrees to acknowledge in writing to SBC receipt of each Order within ten
(10) days of such receipt. HWM will have the right to reject any Order for (a)
failure of SBC to provide all ordering information required by this Agreement
or (b) failure of SBC to allow HWM reasonable time to supply the items
requested. HWM will also have the right to reject an Order which includes
additional unagreed to special terms and conditions. HWM will indicate in its
written acknowledgment to SBC whether the Order was accepted or rejected and,
if rejected, the reasons therefor. Acceptance of any Order by HWM will bind
both
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
42
Agreement No. 980427
SECTION A
Page 41 of 85
parties to honor dates, amounts and other ordering information shown thereon,
including supplemental provisions contained therein.
ORDER OF PRECEDENCE
In the event of a conflict or inconsistency between this Agreement and any
Order, the Order shall control. Except for such Order, the terms of this
Agreement shall not be deemed waived, amended or modified.
PERSONNEL EMPLOYMENT
For the term of this Agreement and for twelve (12) months after termination,
each party agrees that it shall not directly or indirectly, solicit, divert or
hire away, or attempt to solicit, divert or hire away, any agent, or employee
of the other party without prior written consent of the other party.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
43
Agreement No. 980427
SECTION A
Page 42 of 85
PLANT AND WORK RULES
Each party's employees and agents will, while on the premises of the other or
at any other location while performing Services under this agreement for SBC,
comply with all SBC rules and policies, including its "Code of Business
Conduct", a copy of which is available upon request, which prohibits the
possession of any weapon or implement which might be used as a weapon on SBC
properties. Either party will have the right to have the other party removed
and replace personnel which in its opinion is not conforming to its rules or
policies. In addition, the parties agree that, where required by government
regulations, it will submit satisfactory clearance from the U. S. Department of
Defense and/or other federal authorities concerned.
POINTS OF CONTACT
For the purpose of this Agreement the contacts shall be as follows:
HighwayMaster [Text has been omitted pursuant to a request for
confidential treatment. The omitted material has been filed separately with the
SEC.]
Pacific ▇▇▇▇/Nevada ▇▇▇▇ [Text has been omitted pursuant to a
request for confidential treatment. The omitted material has been filed
separately with the SEC.]
SWBT [Text has been omitted pursuant to a request for
confidential treatment. The omitted material has been filed separately with the
SEC.]
SNET [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
PRICES AND PAYMENT
HWM shall submit invoices for installation charges and for GPS Materials upon
delivery and installation of such GPS Materials to SBC. SBC shall pay such
invoices no later than acceptance, or thirty (30) days from receipt of invoice
whichever occurs later. [Text has been omitted pursuant to a request for
confidential treatment. The omitted material has been filed separately with the
SEC.]
HWM shall submit monthly invoices for Network Services prorated during the
first month based on the number of days left in the monthly billing cycle
following
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
44
Agreement No. 980427
SECTION A
Page 43 of 85
activation. Subsequent monthly invoices will be provided for each month
following activation.
PRICES AND PAYMENT (CONTINUED)[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
The prices shall be as outlined in Appendix II, attached hereto and by this
reference made a part hereof. Specific prices identified as still to be
determined
(TBD) will be identified in a modification to this Agreement as mutually agreed
by the parties. Should a difference occur in the amount invoiced by HWM and
paid by SBC a credit or a debit will be applied to an SBC future invoice.
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
45
Agreement No. 980427
SECTION A
Page 44 of 85
PUBLICITY
HWM shall not use SBC's name or any language, pictures or symbols which could,
in SBC's judgment, imply SBC's identity or endorsement by SBC or any of its
employees in any (a) written, electronic or oral advertising or presentation or
(b) brochure, newsletter, book, electronic database or other written material
of whatever nature, without SBC's prior written consent (hereafter the terms in
this clause (a) and (b) shall be collectively referred to as "publicity
matters"). HWM will submit to SBC for written approval, prior to publication,
all publicity matters that mention or display SBC's name and/or marks or
contain language from which a connection to said name and/or marks may be
inferred or implied.
PURCHASE AUTHORIZATION
SBC agrees to place the orders under this Agreement for at least eleven
thousand five hundred (11,500) GPS units at the prices specified in Appendix
II, no later than December 29, 1998. SBC shall have a right to terminate
orders, in which case SBC's liability shall be comprised of and limited to the
following termination charges:
HWM's actual costs of (1) materials, components, and equipment identified to
this Agreement and then in HWM's inventory and engineering work identified to
this Agreement (to the extent that such HWM's purchase orders for such
materials, components , equipment and engineering work are not terminable and
such materials, components , equipment and engineering work are not usable in
HWM's other operations within two (2) months following such date of termination
or expiration), less any salvage value thereof; (2) HWM's actual costs incurred
in procuring such goods and services at the date of expiration or receipt of
notice of termination, less any salvage value thereof; and (3) reasonable
termination charges actually paid by HWM to its suppliers. In no way shall
SBC's total liability for termination of orders exceed twelve million dollars
($12,000,000) if written notice of termination is delivered by September 30,
1998, and twenty million dollars ($20,000,000) if written notice of termination
is delivered after September 30, 1998.
Upon receipt by HWM of notice of termination, title to all materials,
components, or equipment for which SBC is obligated to pay termination charges
under (1), above, shall vest in SBC. HWM shall follow SBC's instructions for
disposition of these items and work. In addition, when payment is made, HWM
shall provide SBC a copy of Software which is developed for SBC.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
46
Agreement No. 980427
SECTION A
Page 45 of 85
PURCHASE PROVISIONS
1. SCOPE
a. Subject to the terms and conditions of this Agreement, HWM
shall provide to SBC such Products and Services as are ordered
by SBC hereunder. As used herein, Services shall include
engineering and installation of Products ordered hereunder and
all other Services provided in connection with the applicable
Products.
2. Each such Order shall be numbered and shall include at least the
following items whenever such item is applicable to the Products and
Services covered by such Order:
a. The date of the Order;
b. The incorporation of this Agreement by reference;
c. A complete list of the products and Services covered by the
Order, specifying, attaching or referencing the quantity,
model number, program name or identification number, and
description for each;
d. The price of each Product and Service, including discounts (if
any), and any additional charges and costs;
e. Shipping instructions;
f. The destination to which the Products will be delivered and
the date and time for scheduled delivery;
g. The scheduled Installation Date;
h. The scheduled performance dates for the Services; and
i. Any special terms and conditions.
Orders shall be shipped complete unless SBC authorizes otherwise, in advance,
by writing.
QUALITY ASSURANCE
SBC expects and requires HWM to have a high quality process operating within
HWM's facilities to which GPS Material purchased hereunder will be subject. SBC
considers ANSI/ASQC Q9001 or ANSI/ASQC Q9002 registration to be of great value
to both the HWM and the SBC, and the HWM is encouraged, but not required, to
seek ANSI/ASQC Q9001 or ANSI/ASQC Q9002 registration if they are not currently
registered. In addition, HWM's Quality Program Specifications are attached
hereto as Appendix VII and by this reference made a part hereof.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
47
Agreement No. 980427
SECTION A
Page 46 of 85
QUALITY ASSURANCE (CONTINUED)
HWM hereby agrees that GPS Material furnished hereunder by HWM will be subject
to:
HWM's quality control activities and procedures, as accepted and
approved by SBC, including but not limited to any performance
measurements, testing, quality process reviews or inspections to
implement such procedures.
When requested by SBC, HWM will at no additional charge:
1. Notify SBC or SBC's Agent when GPS Material is ready for examination
and give SBC or SBC's Agent reasonable opportunity to examine same at
any time prior to the scheduled shipment date thereof.
2. Provide SBC or SBC's Agent with copies of HWM's Quality Manual,
current inspection procedures and product specifications for the GPS
Material furnished hereunder.
3. Maintain and make available to SBC or SBC's Agent the data, including
all information and reports about HWM's quality control procedure,
which demonstrate that the GPS Material meets the specified quality
and reliability requirements.
4. Provide SBC or SBC's Agent, at no charge, with access to HWM's test
equipment, facilities, data and specifications, assistance from HWM's
personnel and sufficient working space to enable SBC or SBC's Agent to
perform said quality assurance examination and/or process surveillance
and/or a review of HWM's total quality program at HWM's facilities.
5. HWM hereby agrees that SBC or its representative may perform a quality
assurance examination/inspection of GPS Material purchased hereunder
at HWM's facility at any time prior to the scheduled shipment date,
and will provide SBC or its representative accessibility to its
facility to do so. Nothing contained herein will affect SBC's rights
hereunder, under any warranty, or under any other provisions of this
Agreement. The purchase of any GPS Material under this Agreement is
subject to SBC's inspection and acceptance after delivery.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
48
Agreement No. 980427
SECTION A
Page 47 of 85
RECORDS AND AUDIT
For the purposes of this Agreement, HWM shall maintain complete and accurate
records of all amounts billable to and payments made by SBC hereunder in
accordance with standard recognized accounting practices. HWM shall retain
such records for a period of three (3) years from the date of final payment for
GPS Material covered by this authorization and maintain reasonable billing
detail for the time specified. HWM agrees to provide reasonable supporting
documentation concerning any disputed amount of invoice to SBC within thirty
(30) calendar days after receipt of written notification of such dispute. HWM
further agrees SBC shall have the right through its accredited representatives
to inspect and audit, during normal business hours, the time and material
charges involved to SBC under this authorization. This right to audit shall be
limited to validating the accuracy of its resources utilized and associated
charges to SBC and expressly excludes records and information pertaining to any
other customers, or HWM's accounting policies or practices. Should SBC request
an audit, HWM will make available the pertinent utilization records and files.
All costs directly attributable to such audit shall be paid by SBC.
REGISTRATION
When GPS Material furnished under this Agreement is subject to Part 68 of the
Federal Communications Commission's Rules and Regulations ("FCC Rules and
Regulations") as may from time to time be amended, HWM warrants that such GPS
Material is registered under and complies with Part 68 of such FCC Rules and
Regulations including, but not limited to, all labeling and customer
instruction requirements. HWM agrees to indemnify and hold SBC harmless from
and against any liability, claims or demands (including costs of defense and
attorneys' fees) that may be made because of HWM's noncompliance with Part 68
of the FCC Rules and Regulations. HWM agrees, at its expense, to defend SBC,
at SBC's request, against such liability, claim or demand, provided , however,
that HWM shall (1) keep SBC fully informed as to the progress of such defense,
and (2) afford SBC, at its own expense, an opportunity to participate on an
equal basis with HWM in such defense.
RELEASES VOID
Neither party shall require waivers or releases of any personal rights from
representatives of the other in connection with visits to its premises, and no
such releases or waivers shall be pleaded by either party in any action or
proceeding.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
49
Agreement No. 980427
SECTION A
Page 48 of 85
RELOCATION
Upon thirty (30) days' prior written notice from SBC, HWM agrees to prepare for
relocation and reinstall GPS Material purchased hereunder at any other site at
SBC's expense. The charge will be as specified in Appendix II, Pricing.
REMEDIES CUMULATIVE
Any rights of cancellation, termination, liquidated damages or other remedies
prescribed in this Agreement are cumulative and are not exclusive of any other
remedies to which the injured party may be entitled, including but not limited
to, the remedies of specific performance and cover; however, neither party
shall retain the benefit of inconsistent remedies.
RESPONSIBILITIES
The basic responsibilities of each party are outlined below.
SBC RESPONSIBILITIES
SBC will:
o Make available upon Agreement execution ten (10) different
types of SBC vehicles to HWM for installation analysis
o Prioritize sites and schedule for installation
o Coordinate schedule for site installation & site coordinators
o Provide contact names and telephone numbers and fully inform
these contacts before being contacted by HWM
o Coordinate to assure that vehicles are available at a ninety
five percent (95%) rate at the designated times and locations
o Assign a program manager for this implementation
HWM RESPONSIBILITIES
HWM will:
o Look at ten (10) different types of SBC vehicles to prepare
for installation
o Provide Installation drawings completed for HWM to start
installations
o Coordinate schedule for site installation & site coordinators
o Train SBC personnel within three (3) days following
Installation Acceptance pending agreement of a training plan
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
50
Agreement No. 980427
SECTION A
Page 49 of 85
RESPONSIBILITIES (CONTINUED)
o Coordinate to assure that vehicles available at a ninety five
percent (95%) rate are installed at the designated times and
locations
o Assign a program manager for this implementation
o Use its best efforts to complete delivery of Phase 1, 2, and 3
requirements by the Delivery Dates specified herein.
RISK OF LOSS
SBC will be relieved from all risk of physical loss, damage or destruction to
the GPS Material during the period the GPS Material is in transit or in the
possession of HWM up to and including the date Acceptance Date thereof, except
for any loss or damage caused solely by the negligence or willful misconduct of
SBC. After the Acceptance Date, SBC will assume all risk of loss, damage or
destruction to the GPS Material, except for any loss or damage caused by the
negligence or willful misconduct of HWM, its agents of employees.
SBC AND HWM INFORMATION
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, component lists, HWM lists, pricing lists,
documentation, technical information or business information or data, written,
oral or otherwise (all hereinafter designated "Information"), furnished to one
party by the other under this Agreement or in contemplation hereof will remain
the disclosing party's property. All copies of such Information in written,
graphic or other tangible form will be returned to the disclosing party upon
request. Information will be kept confidential by the parties (including the
agents, employees, and affiliates of each) in performing under this Agreement
and may not be used for any other purposes except upon such terms as may be
agreed upon between HWM and SBC in writing.
SEVERABILITY
If any provision or any part of provision of this Agreement shall be invalid or
unenforceable, such invalidity or non- enforceability shall not invalidate or
render unenforceable any other portion of this Agreement. The entire Agreement
will be
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
51
Agreement No. 980427
SECTION A
Page 50 of 85
SEVERABILITY (CONTINUED)
construed as if it did not contain the particular invalid or unenforceable
provision(s) and the rights and obligations of the HWM and SBC will be
construed and enforced accordingly.
SHIPPING AND BILLING
HWM will at its expense:
1. Ship Orders complete unless instructed otherwise by SBC.
2. Ship to the destination designated in an Order in accordance
with specific routing instructions.
3. Enclose a packing memorandum with each shipment and, when more
than one (1) package is shipped, identify the one containing the
memorandum.
4. ▇▇▇▇ the Order number and Product identification on all
packages, subordinate documents and shipping papers.
5. Render invoices showing the Order number, through routing and
weight.
6. Render separate invoices for each shipment or Order.
On written request of SBC, HWM will mail Bills of Lading, shipping notices and
copies of transportation bills with copies of HWM's invoices to the address
indicated on said request.
HWM will limit billing on repair invoices to one (1) invoice per repair Order.
SBC shall reimburse HWM for any transportation charges incurred in delivery of
the GPS Materials to SBC. HWM will include the transportation charges from the
F.O.B. point to the destination as a separate charge on HWM's invoice for the
GPS Materials. Adequate protective packaging will be furnished by HWM at no
additional charge. Shipping and routing instructions may be altered as
mutually
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
52
Agreement No. 980427
SECTION A
Page 51 of 85
SHIPPING AND BILLING (CONTINUED)
agreed upon by HWM and SBC without written notice. C.O.D. shipments will not
be accepted. All claims for monies due or to become due from SBC will be
subject to deductions by SBC for any setoff or counterclaim for monies due or
to become due from HWM, whether under this Agreement or otherwise.
SITE PREPARATION
HWM agrees to furnish to SBC, in writing, GPS Specifications, Installation Site
requirements and HWM's recommendations for Site preparation at least ninety
(90) calendar days prior to the Delivery Date specified in the applicable
Order. The GPS Specifications will contain sufficient detail to ensure that
the GPS Material to be installed will operate efficiently in accordance
therewith. Any changes in GPS Specifications or Installation Site requirements
will be sent to SBC, in writing, at least ninety (90) calendar days prior to
the delivery of any additional units of GPS Material which may be ordered after
the initial Order. SBC will have the Installation Site prepared at no expense
to HWM in accordance with the GPS Specifications furnished by HWM.
Installation Site preparation will be scheduled to be completed at least ten
(10) calendar days prior to the Delivery Date specified in the applicable
Order, subject to the delay provisions of the clause entitled Delivery.
HWM may inspect the Site on the scheduled date for completion of preparation or
immediately after SBC informs HWM that Installation Site preparation is
complete. HWM will promptly report to SBC in writing, the date of the
inspection and any nonconforming conditions.
Any alterations or modifications in Installation Site preparation which are
attributable to incomplete or erroneous GPS Material Specifications,
Installation Site requirements or Installation Site recommendations provided by
HWM will be made by SBC at HWM's expense.
SURVIVAL OF OBLIGATIONS
The obligations of either party to this Agreement which by their nature would
continue beyond the termination, cancellation or expiration hereof, including,
by way of illustration only and not limitation, those in the clauses ENTITLED
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
53
Agreement No. 980427
SECTION A
Page 52 of 85
SURVIVAL OF OBLIGATIONS (CONTINUED)
COMPLIANCE WITH LAWS, INSURANCE, LIABILITY, PUBLICITY, RELEASES VOID,
SEVERABILITY, SBC AND HWM INFORMATION AND WARRANTY, will survive the
termination, cancellation or expiration of this Agreement.
TAXES
HWM will invoice SBC the amount of any federal excise taxes or state or local
sales taxes, if any, imposed upon the sale of GPS Material as separate items,
listing the taxing jurisdiction imposing the tax. Software and all Services
will be separately stated on the applicable invoice. SBC agrees to pay such
amounts to HWM. With respect to services, SBC will pay all applicable taxes
and equivalent government assessments in addition to the pricing set forth in
this Agreement. SBC shall pay, in addition to the charges due hereunder for
the Products and/or Services, all applicable federal, state, local sales, use,
and /or excise taxes or surcharges. HWM will invoice SBC the amount of any
federal excise taxes or state or local sales taxes imposed upon the sale of GPS
Material as separate items, listing the taxing jurisdiction imposing the tax.
SBC agrees to pay such amounts to HWM.
HWM agrees to pay, and to hold SBC harmless from and against, any penalty,
interest, additional tax or other charge that may be levied or assessed as a
result of the delay or failure of HWM, for any reason, to pay any tax or file
any return or information required by law, rule or regulation or by this
Agreement to be paid or filed by HWM. HWM agrees to pay and to hold SBC
harmless from and against any penalty or sanction assessed as a result of HWM
doing business with any country subject to U.S. trade restrictions.
SPECIAL TAX PROVISIONS
The following tax sections shall apply only to sales of products which occur in
the state of California and/or other states where the statutory taxation scheme
imposes the legal obligation to pay state, local and/or municipal sales taxes
upon the seller of products, rather than the buyer of products, and which
allows the seller to contractually shift the legal obligation to pay said
state, local and/or municipal sales taxes to the buyer.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
54
Agreement No. 980427
SECTION A
Page 53 of 85
TAXES (CONTINUED)
a. Upon SBC's request, the parties shall consult with respect to
the basis and rates upon which HWM shall pay any taxes for
which SBC is obligated to reimburse HWM under this Agreement.
If SBC determines that in its opinion any such taxes are not
payable or should be paid on a basis less than the full price
or at rates less than the full tax rate, HWM shall make
payment in accordance with such determinations. If collection
is sought by the taxing authority for a greater amount of
taxes than that so determined by SBC, HWM shall promptly
notify SBC. If SBC desires to contest such collection, SBC
shall promptly notify HWM. If SBC determines that in its
opinion it has reimbursed HWM for sales or use taxes in excess
of the amount which SBC is obligated to reimburse HWM, SBC and
HWM shall consult to determine the appropriate method of
recovery of such excess reimbursements. HWM shall credit any
excess reimbursements against tax reimbursements or other
payments due from SBC if and to the extent HWM can make
corresponding adjustments to its payments to the relevant tax
authority. At SBC's request, HWM shall timely file any claims
for refund and any other documents required to recover any
other excess reimbursements, and shall promptly remit to SBC
all such refunds (and interest) received.
b. Although HWM shall cooperate with and provide reasonable
assistance to SBC, SBC shall direct the conduct of any
proceedings, hearings or litigation involved in any contest
with respect to taxes for which SBC is obligated to reimburse
HWM under this Agreement. SBC shall reimburse HWM for any
taxes, interest, penalties or out of pocket expenses
reasonably incurred with SBC's advance written approval, such
as travel expenses of witnesses appearing in such proceedings,
which HWM may be required to pay because of HWM's complying
with SBC's determinations with respect to the payment of
contesting of any such taxes.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
55
Agreement No. 980427
SECTION A
Page 54 of 85
TAXES (CONTINUED)
c. If any taxing authority advises HWM that it intends to audit
HWM with respect to any taxes for which SBC is obligated to
reimburse HWM under this agreement, HWM shall (1) promptly so
notify SBC, (2) afford SBC an opportunity to participate on an
equal basis with HWM in such audit with respect to such taxes
and (3) keep SBC fully informed as to the progress of such
audit. Each party shall bear its own expenses with respect to
any such audit, and the responsibility for any additional tax,
penalty or interest resulting from such audit shall be
determined in accordance with the applicable provisions of
this Section. HWM's failure to comply with the notification
requirements of this section shall relieve SBC of its
responsibility to reimburse HWM for taxes only if HWM's
failure materially prejudiced SBC's ability to contest
imposition or assessment of those taxes.
TECHNICAL REQUIREMENTS AND SPECIFICATIONS
Product Technical Requirements and Specifications:
The GPS Material and Services shall comply with the GPS Specifications
as described in all Appendices or Exhibits, attached hereto and
incorporated into this Agreement by reference and such other
requirements and specifications as may be mutually agreed to by the
parties.
TERMINATION AND CANCELLATION
If either party is in material breach of an obligation hereunder, the party in
breach shall have the period(s) defined below from the date of written notice
thereof to cure such breach:
1. Prior to completing delivery and installation of Phase 1 requirements,
thirty (30) days from the date of written notice specifying the breach
in sufficient detail, followed by an additional thirty (30) days
after written notice of intent to cancel.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
56
Agreement No. 980427
SECTION A
Page 55 of 85
TERMINATION AND CANCELLATION (CONTINUED)
2. After completing delivery and installation of Phase 1 requirements,
thirty (30) days from the date of written notice specifying the
breach in sufficient detail, followed by an additional forty five (45)
day after written notice of intent to cancel.
If the breach is not cured within such applicable cure period, the party not in
breach may cancel this Agreement.
TIME IS OF THE ESSENCE
HWM understands that SBC's business and operations require the delivery of GPS
Material and the performance of Services hereunder be accomplished in the
period of time and by dates specified in the applicable Order. Therefore, it
is agreed that TIME IS OF THE ESSENCE in the delivery of GPS Material and the
performance of Services. In determining a period of time, the date upon which
action is taken to start the period shall not be counted and the period shall
end with the close of business on the last designated day of the period.
TIMELY PERFORMANCE
If HWM learns of anything that might prevent the timely delivery of the
Products and/or performance of the Services, HWM will immediately notify SBC of
all relevant information concerning the potential delay.
TITLE
Title to GPS Material purchased pursuant to this Agreement will remain in HWM
until the Acceptance Date thereof, at which time title will pass to SBC. Upon
receipt of payment, HWM will furnish SBC a ▇▇▇▇ of Sale and all other documents
requested by SBC to enable it to perfect unencumbered title to the GPS
Material.
TRADE-INS
SBC may at any time request HWM to substitute any upgraded or later-developed
GPS Material for GPS Material purchased pursuant to this Agreement. In such
event, HWM may allow a trade-in credit for the old GPS Material toward the
purchase price of the new GPS Material equal to its depreciated value using
straight-line depreciation and a seven (7)-year life.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
57
Agreement No. 980427
SECTION A
Page 56 of 85
TRAINING
HWM will provide SBC, training materials and technical support to enable SBC to
properly and effectively use the GPS Material ordered hereunder.
Training will be provided for a mutually agreed to number of SBC personnel per
course. Initial training will normally be provided prior to or concurrent with
the Installation Date of the GPS Material at each applicable Installation Site;
provided, however, that Acceptance Testing of the GPS Material will not
commence until such training has been provided. Such training will be
conducted at the Installation Site or at other sites selected by SBC, and on
dates which are mutually agreeable to HWM and SBC.
At SBC's request, HWM will provide additional training classes from time to
time at a site selected by SBC or at HWM's site. SBC may also acquire kits of
training materials and may conduct its own courses. SBC will pay for such
additional training classes, or for such kits of training materials, at HWM's
then current standard published charge for such services, less any applicable
discounts. In the event of additional training at SBC's site, reasonable
expenses for travel and lodging for the trainer will be paid by SBC, provided
that reasonable supporting documentation is submitted by HWM therefor.
SBC may reproduce any training material originated by HWM for the purpose of
training SBC's own personnel. Any such reproductions will include any
copyright or similar proprietary notice contained in the items being
reproduced.
TRANSPORTATION
All transportation charges applicable to GPS Material both from and to HWM's
plant are to be paid by SBC; provided, however, that HWM will bear the cost of
transportation for GPS Material (a) shipped for mechanical replacement purposes
covered under any applicable Warranty, (b) removed as a result of GPS Material
failure while covered under any applicable Warranty, whether for the
convenience of HWM or pursuant to a demand by SBC as provided herein, and (c)
removed as a result of a default by HWM of any of the terms and conditions of
this Agreement or any Order.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
58
Agreement No. 980427
SECTION A
Page 57 of 85
TRANSPORTATION (CONTINUED)
HWM will prepay transportation and handling charges for all GPS Material
ordered hereunder and list same as separate items on HWM's invoice therefor.
Transportation charges to ship empty packing cases will be paid by HWM except
when the GPS Material is moved at SBC's request from one SBC Installation Site
to another.
Transportation charges payable by SBC will not exceed the cost of shipment
between SBC's location and the location of HWM's nearest plant of manufacture
of the GPS Material being shipped, regardless of the actual point of origin or
destination of the GPS Material.
SBC will pay only those rigging or drayage costs incurred at SBC's Installation
Site, except when HWM is responsible for payment of transportation charges as
stated above.
UNIVERSAL DESIGN
HWM advocates and supports and encourages its suppliers to advocate and support
the manufacturing and provision of products which embrace the concept of
"universal design". HWM shall use its reasonable efforts to manufacture and
provide products, including future versions of Products, to make it's products
accessible to the widest range of consumers including those with disabilities.
HWM agrees to reasonably cooperate with SBC in addressing disability access
issues, including hearing aid interference, that may arise in connection with
SBC's customer's use of HWM's Products furnished hereunder. Specifically HWM
agrees:
1. to ensure that its equipment is designed, developed and fabricated to
be accessible to and usable by people with disabilities, and
2. to ensure that the service is accessible to and usable to people with
disabilities, or
3. to ensure that the equipment or service is compatible with existing
peripheral devices or specialized customer premises equipment commonly
used by individuals with disabilities to achieve access, if the
requirements of subsection 1 and 2 are not readily achievable.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
59
Agreement No. 980427
SECTION A
Page 58 of 85
WARRANTY
HWM's warranties are based upon the product descriptions of GPS Material
contained in the GPS Specifications agreed upon by SBC and HWM (including any
specifications and demonstrations and drawings) and the demonstrations and
samples previously provided and demonstrated, as well as any other
specifications, drawings, demonstrations and samples that may be referred to or
incorporated in this Agreement or the final agreement between the parties.[Text
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the SEC.]
HWM warrants to SBC that GPS Material furnished hereunder will be merchantable,
free from defects in design, GPS Material and workmanship, fit and sufficient
for the purposes intended by SBC, free from all liens and encumbrances and will
conform to and perform in accordance with applicable GPS Specifications,
drawings, demonstrations and samples. In addition, if GPS Material contains one
or more manufacturer's warranties, which are permitted to be assigned by their
terms, HWM hereby assigns such warranties to SBC. These warranties will be in
addition to all other warranties, express, implied or statutory. All warranties
will survive inspection, acceptance, payment and use.[Text has been omitted
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the SEC.]
HWM also warrants to SBC that any services provided hereunder will be performed
in a first-class, workmanlike manner, with the care, skill and diligence, and in
accordance with the applicable standards currently recognized in HWMs profession
or industry. If HWM fails to meet applicable professional standards, HWM will,
without additional compensation, correct or revise any errors or deficiencies in
the Services furnished hereunder.[Text has been omitted pursuant to a request
for confidential treatment. The omitted material has been filed separately with
the SEC.]
GPS Material not meeting the warranties contained herein during the warranty
stated at the bottom of this warranty section, will, at SBC's option, be
repaired, adjusted or replaced by HWM at no cost to SBC. After the [Text has
been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the SEC.] Warranty for Service a time
and material charge will be applied based on HWM service rates identified in the
Agreement. In the event of an emergency out-of-service condition caused by GPS
Material furnished hereunder, HWM agrees to ship replacement GPS Material, if
available, within [Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the SEC.] of
notification by SBC. Such emergency replacement Service shall continue for a
period of [Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the SEC.] after
the expiration of this
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
60
Agreement No. 980427
SECTION A
Page 59 of 85
Agreement. For GPS Materials not covered under warranty, charges for
replacement GPS Material shall be at the current selling price; freight charges
shall be borne by SBC.
WARRANTY (CONTINUED)[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
In addition to the warranties stated above HWM warrants the [Text has been
omitted pursuant to a request for confidential treatment. The omitted material
has been filed separately with the SEC.] for a period of [Text has been omitted
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the SEC.] for labor and [Text has been omitted pursuant
to a request for confidential treatment. The omitted material has been filed
separately with the SEC.] for all parts.
Warranties specified herein shall commence from the date of SBC's acceptance of
the applicable GPS Material or Service. [Text has been omitted pursuant to a
request for confidential treatment. The omitted material has been filed
separately with the SEC.] warranties shall commence on acceptance of Phase 1
GPS Material and the period shall not be extended as it relates to the [Text
has been omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the SEC.] by virtue of subsequent
Software modifications.
WORK DONE BY OTHERS
If any part of the work is dependent upon work done by others, HWM shall
inspect and promptly report to SBC any defect that renders such other work
unsuitable for HWM's proper performance. HWM's silence shall constitute
approval of such other work as it is fit, proper and suitable for HWM's
performance of the work. HWM shall be entirely responsible for all persons
furnished by HWM working in harmony with all others when working on SBC's
premises.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
61
Agreement No. 980427
SECTION A
Page 60 of 85
WORK HEREUNDER
It is understood that visits by representatives of HWM or its suppliers for
inspection, adjustment or other similar purposes in connection with GPS
Material purchased hereunder will for all purposes be deemed "work hereunder"
and will be at no charge to SBC unless otherwise agreed in writing with SBC.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
62
Agreement No. 980427
SECTION A
Page 61 of 85
SECTION B - SOFTWARE LICENSE
GENERAL
HWM agrees to supply to SBC, under the terms and conditions set forth in this
Agreement, all Software and associated Documentation specified in an Order
submitted to HWM pursuant hereto.
GRANT OF LICENSE
HWM hereby grants to SBC a perpetual, non-exclusive, irrevocable, royalty-free
Enterprise License/Site License/CPU License (the "License") to use the Software
Products specified in Orders for any business purpose of SBC or its Affiliated
Companies. No right of sublicense is granted to SBC.
SBC may also alter tables and other user modifiable parameters as provided in
the GPS Specifications applicable to the Software Products. SBC shall also
have the right to create copies of machine readable Software Products and any
source code provided or acquired hereunder for backup and recovery purposes.
All materials developed or produced by SBC through use of the Software Products
shall remain the property of SBC and/or Affiliated Companies. SBC shall not
use, print, copy, modify, translate, alter, decompile, reverse engineer or
display the Software Products, in whole or in part, except as expressly
provided for in this Agreement.
DOCUMENTATION UPDATES
HWM agrees to provide updates to Documentation furnished to SBC hereunder which
is related to the use and support of the Software. HWM will also provide
periodic newsletters concerning the programs, Software enhancements,
programming notes, and Documentation corrections to the SBC liaison support
associated with such Software.
In the event of an emergency out-of-service condition caused by defective
Software or a disaster or other occurrence wherein SBC's copy of such Software
is destroyed or rendered unusable, HWM agrees to ship a replacement copy of the
current version of such Software as installed at SBC's Installation Site(s)
within two (2) workdays of verbal notification by SBC. HWM also agrees that
there will be no charge to SBC for such replacement copy of the Software, other
than the cost of the media upon which the Software resides.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
63
Agreement No. 980427
SECTION B
Page 62 of 92
ERROR CORRECTIONS
HWM will supply code corrections to correct errors or malfunctions in the
Software which cause such Software to either be unavailable for use by SBC or
fail to meet the applicable GPS Specifications therefor. Errors may be
reported to HWM by SBC either verbally or by written notice to HWM's Customer
Care Center located in Richardson, Texas at 1(800) 647- 6693. HWM will notify
SBC in writing of the existence of any significant error relating to SBC's
processing environment or use of the Software within forty-eight (48) hours
after the error is brought to its attention.
The error correction procedures will be designed to correct errors in the
Software in accordance with the following levels of error severity assigned by
SBC based on the following conditions:
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
*NOTE Resolution of intermittent error conditions will be handled on a
case-by-case basis.
HWM will correct any and all errors in Software in accordance with error
severity levels as described in this Clause, regardless of the source of
notification. If HWM determines that such errors cannot be corrected within
the specified intervals, HWM will immediately initiate an escalation procedure
to:
a. Immediately assign sufficiently skilled personnel to correct the
error.
b. Immediately notify HWM's senior management personnel that such
error has not been corrected and that the escalation procedure
has been activated.
c. Provide weekly written status reports of outstanding uncorrected
error to SBC.
If any Software error cannot be corrected by HWM in accordance with this
clause, HWM agrees to grant to SBC, on the next maintenance invoice, a
malfunction credit calculated separately for each error severity level as
follows:
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
64
Agreement No. 980427
SECTION B
Page 63 of 92
ERROR CORRECTIONS (CONTINUED)
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
FORM OF ORDER
An Order for Software will be written on SBC's Order form and will contain the
following information, if applicable:
1. The incorporation by reference of this Agreement.
2. The Installation Site(s).
3. The type of License (perpetual/annual).
4. The charge for the License being granted.
5. The date by which the Software will be delivered.
6. Data processing equipment model number and, if already
installed, its serial number.
7. Any special terms and conditions agreed upon by the parties.
INSTALLATION OF SOFTWARE
If requested by SBC in the applicable Order, HWM agrees to install the
Software, at the Installation Site designated therein, at no charge to SBC.
Installation of the Software by SBC or HWM will consist of a version that will
perform in accordance with the corresponding published performance GPS
Specifications therefor and will include a demonstration of the Software's
features and functions using HWM's standard demonstration procedure of the
installed Software on SBC's computer system.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
65
Agreement No. 980427
SECTION B
Page 64 of 92
INSTALLATION OF SOFTWARE (CONTINUED)
The purpose of the installation demonstration will be to confirm that all
Software ordered has been entered into SBC's program library and that such
Software functions in accordance with HWM's published performance GPS
Specifications associated therewith. The demonstration will be considered to
be successfully completed when the Software output results match the standard
set of results provided by HWM.
If HWM installs the Software, HWM will certify in writing to SBC, at the
successful completion of the installation demonstration, that the Software has
been properly installed and performs in accordance with HWM's published
performance GPS Specifications applicable thereto. If SBC installs same, HWM
agrees to provide complete installation instructions with the Software and
telephone consultation, during HWM's business hours, on the proper installation
thereof at no additional charge to SBC.
SOFTWARE PRODUCT DELIVERY AND INSTALLATION
For each Software Product, HWM shall deliver, at no additional charge, at least
the following basic materials:
1. Executable Software.
2. System implementation instructions and required procedures.
3. User instructions.
4. Sample data.
5. Any other programs, routines, subroutines or related material
HWM has or may develop necessary for the general use of the
Software Products which are normally furnished to users of the
Software Products at no charge.
6. Documentation and GPS Specifications associated with the
Software Products.
7. Complete installation instructions.
No Software Products under any Order shall be deemed to be delivered until all
Software Products required by that Order have been delivered, unless otherwise
agreed between the parties. HWM also agrees to provide, at no additional
charge, telephone consultation as necessary during HWM's normal business hours,
on the proper installation of the Software Products. In addition, upon
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
66
Agreement No. 980427
SECTION B
Page 65 of 92
PRODUCT DELIVERY AND INSTALLATION (CONTINUED)
request by SBC, HWM agrees to install the Software Products at SBC's
location(s) for no additional charge.
SBC may exchange Software Products, at no charge, for an alternative, generally
available version of the Software Products for use on different platforms or
operating systems. In order to exchange, SBC must certify to HWM in writing
that all existing copies of the version of the Software Products to be replaced
have been returned or destroyed, except for archival copies which are
impractical to remove from SBC's backup tapes. In addition, SBC shall certify
to HWM in writing that use of the replaced Software Products shall cease
(except if use is required due to a regulatory proceeding as provided below).
Software Products shall be delivered to the site(s) specified on the Order.
SBC may copy the Software Products as necessary to distribute to SBC's various
platforms.
RELOCATION OF SOFTWARE
SBC may redesignate the location at which the Software will be installed, and
will notify HWM of such new location and the effective date of the
redesignation. Concurrent operation of the Software at a second location for a
period not to exceed six (6) months for the purpose of redesignating the
assigned using location will not require an additional license or charge. The
term "location" or "Installation Site" as used herein will mean each facility
designated by SBC on each particular Order at which the Software is to be
installed.
The License granted under an Order for a designated Installation Site may be
transferred: (a) to a back-up location if the computer(s) at the designated
Installation Site is/are inoperative due to malfunction, to performance of
preventative maintenance, to engineering changes or to changes in features or
model, until such computer(s) is/are restored to operative status and
processing of the data already entered in the computer(s) at the back-up
location has been completed, or (b) to one other location for assembly,
compilation or use of the Software if the specifications of the computer(s) at
the designated Installation Site are such that the Software cannot be assembled
or compiled thereon.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
67
Agreement No. 980427
SECTION B
Page 66 of 92
RETURN OF SOFTWARE
Except as otherwise provided herein, SBC agrees to certify to HWM in writing,
within thirty (30) days after the termination or cancellation of any License
Order (except in the event of termination or cancellation due to default by
HWM), that use of the Software licensed thereunder shall cease (except if use
is required due to a regulatory proceeding as provided herein) and that the
original and all copies of all Software licensed thereunder have been destroyed
or returned to HWM. If continued use is required due to a decision or order of
a regulatory body, SBC shall notify HWM and make arrangements for necessary use
of the Software. However, any output created or generated through use of the
Software shall remain the property of SBC, and it shall not be returned to HWM.
RIGHT TO REPRODUCE MATERIAL AND DOCUMENTATION
SBC will have the right to reproduce all printed material, Documentation and
all machine-readable Software supplied by HWM hereunder, provided that such
reproduction of printed material and Documentation is made solely for SBC's
internal use. Any such reproductions will include any HWM notice contained in
the original items being reproduced.
In the case of severe Equipment failure, SBC may transfer this copy to
temporary Equipment. Any copies will be removed from the temporary Equipment
when the Equipment or Software is restored to its pre-emergency specifications.
RISK OF LOSS
If any Software is lost, damaged or made invalid during shipment or prior to
acceptance, HWM will promptly replace the Software and Software storage media
at no additional charge to SBC.
If any Software is lost or damaged while in the possession of SBC after
acceptance, HWM will promptly replace the Software at the established charge
for the Software storage media unless such media is provided by SBC.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
68
Agreement No. 980427
SECTION B
Page 67 of 92
SOFTWARE UPDATES
HWM agrees to supply improvements, new releases, updates, extensions, and other
changes to Software ordered hereunder which (a) HWM provides to other customers
who have a license to use such Software, (b) HWM deems to be logical
improvements or extensions to the original Software supplied to SBC, or (c) are
necessary for the Software to continue their computing functions as mutually
agreed upon between HWM and SBC. SBC will have the right to accept or reject
any such revised version of the Software or to remove same and replace it with
the previous version if such new version will degrade or impair SBC's computer
system. In addition, HWM will insure that Software licensed hereunder is kept
current with new releases of the operating system(s) listed in HWM's standard
published GPS Specifications.
HWM agrees to provide SBC a reasonable amount of mail and telephone consulting
assistance in the event that difficulties occur in the use of the Software or
in SBC's interpretation of the results of Software use. Upon notification by
SBC that such consulting service is required, HWM will proceed promptly toward
the resolution of all such reported problems by using and coordinating whatever
HWM resources are required to resolve the problem.
If such problem cannot be resolved by telephone or written communication within
thirty (30) days from the time SBC first contacts HWM, then if requested by
SBC, HWM will provide an employee, capable of resolving such problem at the
applicable SBC Installation Site for no additional charge, provided that the
problem is the failure of the Software to perform to general GPS Specifications
previously provided to SBC or to GPS Specifications contained in the then
current applicable Software GPS Specifications. If the error or malfunction
causes downtime on SBC's computer system on which the Software is installed,
then HWM will proceed promptly to resolve the problem.
In the event that a problem is found to be due to (a) a modification to the
Software made by SBC or (b) use of the Software in a manner which is not in
accordance with the instructions provided by HWM to SBC relating to use of the
Software, SBC agrees to pay HWM for all Technical Support or Services performed
to resolve or investigate the particular problem at HWM's then current
published standard time and material rates and reimburse HWM for any related
expenses incurred, provided that such expenses are reasonable and HWM furnishes
to SBC supporting documentation therefor.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
69
Agreement No. 980427
SECTION B
Page 68 of 92
SOURCE AVAILABILITY AND SOURCE CODE ESCROW
CODE & DOCUMENTATION ESCROW
A. GENERAL TERMS. The following Code and Documentation escrow provisions
shall apply to (1) any Code and Documentation of the Software provided as part
of the GPS Materials provided to SBC pursuant to this Agreement including
mobile unit software, host communications handler software; and (2) any Code
and Documentation for software utilized by HWM's Network Service Center to
provide enhanced switching services in connection with the GPS Materials (the
"Deposited Code and Documentation"). However, these escrow provisions shall
not apply to any software which is owned by a third party (the "Licensed
Materials"). SBC shall be able to use any intellectual property for its
purposes to enable SBC to continue to provide the functionality described in
the GPS Specifications and various call flows to perform all functionality and
services including any modifications to the Software to effect the use of the
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.] Such escrow shall
occur regardless of whether payment has been made, or a dispute between the
parties is in progress. For purposes of this Section, the term "Code" shall
include:
1. CODE. Computer programming code. If not otherwise specified, Code
shall include both Object Code, Source Code and Compiler
Code/Compilation Programs. Code shall include any Maintenance
Modifications, and/or Enhancements created by HWM from time to time.
2. OBJECT CODE. The machine-readable form of the Code.
3. SOURCE CODE. The human-readable form of the Code and related
system documentation including all comments and any procedural code
such as job control language.
4. COMPILER CODE/COMPILATION PROGRAMS. All programs needed to compile
the source code to object code language.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
70
Agreement No. 980427
SECTION B
Page 69 of 92
SOURCE AVAILABILITY AND SOURCE CODE ESCROW (CONTINUED)
CODE & DOCUMENTATION ESCROW (CONTINUED)
B. ESCROW DEPOSIT. HWM will provide the Deposited Code and Documentation
to an escrow agent to be mutually selected by HWM and SBC. HWM will maintain
the Deposited Code and Documentation current with a filing delay of no more
than sixty (60) days following development of such Deposited Code and
Documentation related to any maintenance modifications and/or enhancements.
C. PAYMENT OF ESCROW AGENT FEES. HWM shall be responsible for and pay
any and all fees due to the escrow agent in connection with said escrow
agreement.
D. AVAILABILITY OF DEPOSITED MATERIALS TO SBC. The escrow agent shall
release, upon actual receipt of written notice from SBC and/or HWM, the
Deposited Code and Documentation to SBC if any of the following conditions
occurs subject to the resolution of any objections to the delivery thereof
served by HWM as specified below herein: (1) an assignment by HWM for the
benefit of creditors; (2) the filing of a petition in bankruptcy by HWM; (3)
the filing of creditors of HWM of a petition in bankruptcy against HWM which is
not stayed or dismissed within ninety (90) days; (4) the appointment of a
receiver over the assets of HWM; (5) the parties reasonable disagreement with
respect to the charges to be paid by SBC to HWM under this Agreement (6) HWM's
material breach of this Agreement; and/or (7) HWM's decision to cease
conducting the business which is the subject of this Agreement. The escrow
agent shall serve HWM with fifteen (15) days prior written notice before
delivering the Deposited Code and/or Documentation to SBC so that HWM may have
a reasonable opportunity to serve upon the escrow agent its written objections
to delivery thereof to SBC. In the event that a dispute arises as to whether
any of the foregoing conditions has been met, the escrow agent shall
immediately appoint a mutually acceptable neutral third party arbitrator, with
expertise in intellectual property and contract law, who will, no later than
three (3) weeks after the initial demand of SBC for the release of the
Deposited Code and Documentation, direct the escrow agent to hold or release
the applicable portion of the Code and/or documentation according to the
arbitrator's sole interpretation of this Agreement, the Source Code Escrow
Agreement, and any exhibits thereto.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
71
Agreement No. 980427
SECTION B
Page 70 of 92
SOURCE AVAILABILITY AND SOURCE CODE ESCROW (CONTINUED)
CODE & DOCUMENTATION ESCROW (CONTINUED)
E. CONDITIONS OF DELIVERY. The Deposited Code and Documentation, if and
when delivered to SBC shall be delivered subject to the following terms and
conditions:
1. SBC will have no right to make copies of, or to license or
sublicense, the Deposited Code and Documentation, other than the
rights which SBC has been granted to license or sublicense the same in
this Agreement.
2. SBC shall acquire no rights in the Deposited Code and
Documentation delivered by the Escrow Agent other than the license
rights granted by this Agreement and shall utilize the Deposited Code
and Documentation solely for the purpose of performing and/or
completing a maintenance and support of the applicable Licensed
Materials.
3. SBC shall keep the Deposited Code and Documentation at a
single location at SBC's Corporate Headquarters and will have a right
to use only one (1) copy of the Deposited Code and Documentation, with
the backup copy to be permanently stored as required below.
4. SBC's right to use the Deposited Code and Documentation will
be strictly limited to maintenance and support of the applicable
licensed Materials.
5. Except when actually being utilized for its permitted
purposes, the Deposited Code and Documentation will be kept in a
highly restricted limited access area with access thereto limited to
designated personnel who have a need to use the Deposited Code and
Documentation for the purposes permitted hereunder. The Deposited
Code and Documentation will be otherwise similarly protected by SBC in
a manner consistent with the manner in which it protects its own
highly confidential Intellectual Property (but no less than reasonable
manner), for the duration of time necessary to complete such permitted
purpose.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
72
Agreement No. 980427
SECTION B
Page 71 of 92
SOURCE AVAILABILITY AND SOURCE CODE ESCROW (CONTINUED)
CODE & DOCUMENTATION ESCROW (CONTINUED)
6. All designated personnel with access to the Deposited Code and
Documentation will (i) be advised in writing of the trade secret and
confidential nature of the Deposited Code and Documentation and HWM's
proprietary interest therein; and (2) previously have agreed to comply
with written confidentiality restrictions substantially similar to the
confidentiality restrictions set forth in this Agreement.
7. SBC shall immediately return the Deposited Code and
Documentation, and copies thereof within its possession or control, to
HWM or the escrow agent when SBC no longer requires the Deposited Code
and Documentation for support or maintenance purposes.
SOURCE CODE
If the applicable Order requires HWM to provide SBC with source code to the
licensed Software, HWM shall, prior to the Performance Date and at no
additional charge to SBC, provide SBC with a complete copy of the source code
for the Software and any other information necessary to enable SBC to maintain
the Software. During the license term HWM shall promptly provide SBC with
copies of any changes in or additions to such source code or other information.
Unless HWM has already provided SBC with a copy of current version of the
source code for the Software HWM shall, within ten (10) days after HWM's
receipt of SBC's written request therefor and at no additional charge, provide
SBC with a complete copy of the current version of the source code for the
Software hereunder and any other information necessary to enable SBC to
maintain the Software. SBC shall thereafter have a perpetual royalty-free
right to use the source code for the limited purpose of maintaining the
Software and for the purposes specified by modifications hereto.
STANDARD OF PERFORMANCE
If the Software, when operated by SBC's personnel during the Acceptance Test
for the specified Acceptance Period, operates in conformance with the mutually
agreed upon GPS Specifications, it will be deemed to have met the GPS
Specifications.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
73
Agreement No. 980427
SECTION B
Page 72 of 92
TITLE
Title to Software will remain in HWM. SBC will have the right to make a
reasonable number of copies of the Software for use as authorized in an Order.
USE OF THE SOFTWARE
HWM agrees that Software licensed hereunder may be used by any present or
future subsidiary, affiliate or parent corporation of SBC, whether the use be
carried out on site or by remote electronic access, and that all materials
developed by SBC will remain the property of SBC.
SBC will not use, print, copy, modify, translate, alter or display the
Software, in whole or in part, except as expressly provided for in this
Agreement. Further, SBC will not reverse compile, decompile or reverse
engineer any Software and any attempt to do so will be a breach of this
Agreement.
USE OF PLATFORMS
HWM agrees and promises to use the applicable platforms on which Software
Products are installed only for the purposes of installing, maintaining, or
otherwise supporting the Software Products. Any other use of such platforms
shall constitute a breach of this Agreement.
WARRANTY [Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the SEC.] HWM
hereby represents and warrants to SBC as follows:[Text has been omitted pursuant
to a request for confidential treatment. The omitted material has been filed
separately with the SEC.] 1. It has the right to grant to SBC a license to use
the Software Products set forth in each Order issued hereunder.
2. All Software Products furnished or developed under this Agreement
(including custom Software Products) shall be (i) free from defects
in material and workmanship, (ii) substantially conform to and
perform in accordance with HWM's then current published GPS
Specifications, and (iii) operate satisfactorily in the system
environment in which the Software Products are initially installed.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
74
Agreement No. 980427
SECTION B
Page 73 of 92
WARRANTY (CONTINUED)
3. Except as disclosed in the GPS Specifications appended to this
Agreement, the Software Products licensed hereunder contain no
"computer viruses", other "contaminants", including any codes, or
instructions that may be used to access, modify, delete, damage, or
disable SBC's computer system. If any "third party" software of other
vendors is incorporated into the Software Products furnished by HWM
hereunder, HWM shall obtain comparable warranties enforceable by SBC
from such vendors.
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
5. HWM warrants that the Software does not contain any disabling code
which would render the Software Products unusable until a patch or new
password is entered on the machine for which it is licensed.
6. HWM warrants for a period of [Text has been omitted pursuant to a
request for confidential treatment. The omitted material has been
filed separately with the SEC.] from furnishing a Software Product
that any magnetic medium on which portions of a Software Product are
furnished shall be free from defects in material, workmanship or
recording.
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
75
Agreement No. 980427
SECTION B
Page 74 of 92
WARRANTY (CONTINUED)
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
8. HWM agrees to perform the Services in a first-class, workmanlike
manner, with care, skill and diligence, and in accordance with
applicable standards currently recognized by HWM's profession. HWM
further agrees to be responsible for the professional quality,
technical accuracy, completeness and coordination of all reports,
designs, drawings, plans, information, specifications and other items
and Software Products (including custom Software Products) and Services
furnished under this Agreement. If HWM fails to meet applicable
professional standards, HWM will, without additional compensation,
correct or revise any errors or deficiencies in its reports, drawings,
specifications, designs or other items or Software Products and
Services furnished hereunder.
9. [Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the
SEC.]Generally available Software Products will contain, at a minimum,
the same functions and features as the associated Beta Test copy of
such Software Products.
The above warranties (except for the warranties contained in paragraphs 1 and
6) shall be effective for a period of [Text has been omitted pursuant to a
request for confidential treatment. The omitted material has been filed
separately with the SEC.] of the Software Products and/or the rendering of the
Services to SBC. The warranty contained in paragraph 1 shall be effective
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.] HWM agrees to
correct, replace or credit, at SBC's sole option and at HWM's sole expense, any
non-conforming Software Product which is due to errors, malfunctions, or the
acts or omissions of HWM, its employees or agents. In addition, pursuant to
paragraph (6), HWM agrees to replace any defective media at no charge to SBC
during the [Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the SEC.]
warranty period.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
76
Agreement No. 980427
SECTION C
Page 75 of 85
SECTION C - GPS MATERIAL MAINTENANCE SERVICES
GENERAL
HWM agrees to provide maintenance service on GPS Material acquired hereunder by
SBC upon the terms and conditions set forth in this Agreement and in Orders
placed by SBC pursuant to this Section and accepted by HWM. Such Orders will
be deemed accepted by HWM provided the Orders are in conformance with this
Section. Prices for parts and HWM's hourly rates are included in Appendix II.
ACCESS
SBC will provide HWM with reasonable access to the GPS Material to perform
maintenance service.
BASIC SERVICE
HWM agrees to perform the following basic maintenance service: accomplish
regularly scheduled Preventive Maintenance, if applicable; update the GPS
Material to provide the latest reliability improvements; respond to requests
for and accomplish Remedial Maintenance during the Principal Period; supervise
the preparation of the GPS Material for movement and set-up after movement; and
provide all tools and test equipment necessary for the maintenance of the GPS
Material. There will be no maintenance charges for the following basic
maintenance services if performed during the applicable warranty period and if
the malfunction or inoperative condition is covered under the applicable
warranty:
1. Preventive Maintenance, unless performed outside the Principal
Period, which will include, for purposes of this paragraph, the
mutually agreed to scheduled time for Preventive Maintenance.
2. Remedial Maintenance which was begun during the Principal Period
or an extension thereof or when HWM was notified during the
Principal Period or extension thereof of the need for Remedial
Maintenance.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
77
Agreement No. 980427
SECTION C
Page 76 of 85
BASIC SERVICE (CONTINUED)
3. Remedial Maintenance required within a thirty (30) day period
due to a recurrence of the same malfunction.
4. Time spent by maintenance personnel after arrival at SBC's Site
awaiting the arrival of additional maintenance personnel and/or
delivery of parts, etc., after a service call has commenced.
5. Remedial Maintenance required when the scheduled Preventive
Maintenance preceding the malfunction had not been performed.
6. Parts required for Preventive or Remedial Maintenance, including
replacement parts.
7. Remedial Maintenance performed outside the Contracted Period of
Coverage, unless specifically agreed otherwise by SBC in
writing.
When so agreed, SBC will pay for Remedial Maintenance requested to be performed
outside of the Contracted Period of Coverage at HWM's published rates;
relocation of GPS Material within a SBC location during the Contracted Period
of Coverage; unpacking, installation and Acceptance Tests, any GPS Material
certification for maintenance, and packing, removal and supervising the removal
or moving of any GPS Material.
Preventive Maintenance, if applicable, will be performed at mutually agreed
upon times which do not unreasonably interfere with SBC's use of the GPS
Material. HWM will specify in writing the frequency and duration of the
Preventive Maintenance required for the GPS Material, and SBC will specify the
Preventive Maintenance schedule which may be modified by mutual agreement.
ENGINEERING CHANGES
Engineering changes which are made to GPS Material after its manufacture will
be incorporated by HWM into the GPS Material at SBC's site. These changes will
be incorporated only after consultation with and scheduling by SBC. Time
required for any modifications or engineering changes will be subject to the
provisions hereof relating to maintenance credit for downtime. In addition,
HWM will, during such consultation, specify any related products which may be
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
78
Agreement No. 980427
SECTION C
Page 77 of 85
ENGINEERING CHANGES (CONTINUED)
affected by such engineering changes. All modifications will be subject to the
provisions of the Clause entitled ACCEPTANCE.
There will be no charge for the installation of engineering changes due to
Warranty covered defects on GPS Material or a recall of the GPS Material for
safety related defects.
ESCALATION PROCEDURE
HWM will endeavor to initiate on-site remedial Service at SBC's site within the
specified response time. If the trouble has not been corrected within six (6)
hours after SBC's request for Service, HWM's support center personnel will
initiate an escalation process to provide HWM's regional engineering
assistance. If the trouble has not been corrected within twelve (12) hours
after SBC's request, the problem will be escalated to HWM's engineering control
center. No charge will be made for any such escalation.
FORM OF ORDER
Orders for GPS Material maintenance will be written on SBC's forms and will
contain the following information:
1. The incorporation by reference of this Agreement.
2. A complete list of the GPS Material to be serviced, specifying
quantity, type, description, the monthly maintenance charge for
each item of GPS Material, the term of the Order and the total
annual/monthly maintenance charges payable by SBC.
3. The location at which the GPS Material is installed, including
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ and zip code.
4. The designation of a point of contact at which HWM's maintenance
representative will receive notification of GPS Material
failure.
5. The Principal Period, or extension thereof, selected by SBC.
6. Any special terms and conditions agreed upon between the
parties.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
79
Agreement No. 980427
SECTION C
Page 78 of 85
MAINTENANCE BY OTHERS
SBC will not knowingly permit persons other than authorized representatives of
HWM to perform maintenance or attempt repairs to any GPS Material while that
GPS Material is covered by maintenance provided by HWM hereunder, unless
otherwise agreed by HWM.
MAINTENANCE LOG
HWM agrees to maintain a legible maintenance log at each Installation Site
which will be made available to SBC for inspection upon request. This log will
include, at a minimum, the following:
1. The date and the time HWM was notified.
2. The date and time of HWM's arrival.
3. The time the GPS Material was made available to HWM.
4. The type and model number(s) of the GPS Material.
5. A description of the malfunction.
6. The time spent for repair.
7. The corrective action taken, including parts used.
8. The time the GPS Material was made available to SBC.
9. Applicable charges, if any.
10. Identification of HWM's representative.
11. SBC's representative's signature.
PARTS
There will be no additional charges for replacement parts during the covered
warranty period. Only new standard parts or parts of equal quality will be
used in effecting repairs. Parts which have been replaced will become the
property of HWM and will be removed from SBC's Site. Parts which are installed
on purchased GPS Material will become the property of SBC.
PARTS INVENTORY
HWM agrees to maintain a sufficient supply of spare parts at SBC's Site to make
emergency repairs.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
80
Agreement No. 980427
SECTION C
Page 79 of 85
REMEDIAL MAINTENANCE
Remedial Maintenance will be performed after notification to HWM that the GPS
Material is inoperative. HWM will furnish SBC with a designated point of
contact for such notification. During the Principal Period, or extension
thereof, set forth in the applicable Order, HWM agrees to have a Field Engineer
arrive at SBC's Site within twenty-four (24) hours after notification that
Service is required. Outside such Principal Period, or extension thereof, HWM
will use its best efforts to have its Field Engineer arrive at SBC's Site
within twenty-four (24) hours after notification that Service is required.
Such Service calls will be made at HWM's then current standard per-call rates.
Only one (1) Field Engineer will respond to a request for maintenance outside
of the Principal Period or extension thereof, unless it is mutually agreed that
more than one (1) Field Engineer is required.
The Principal Period or extension thereof may be changed by SBC upon thirty
(30) days' prior written notice to HWM.
Separate Principle Periods of Maintenance may be specified when there are two
(2) or more installations of HWM provided GPS Material at the same Site.
In the event that HWM finds itself unable to meet the standards set forth above
in responding to SBC's maintenance requests, HWM will, in consideration of the
size of the installed base, locate a Field Engineer within a fifty (50) mile
radius of SBC or, upon the reasonable request of HWM, SBC may provide office
space for such Field Engineer at SBC's Site.
STORAGE AND WORK SPACE
SBC will provide at no charge to HWM space for spare parts and working space,
including heat, light, ventilation, electric current and outlets for use by
HWM's maintenance personnel. These facilities will be located at SBC's site
within a reasonable distance of the GPS Material to be maintained. HWM will
maintain this space in an orderly manner, consistent with SBC's site rules.
SBC will not be liable for loss or damage to HWM's equipment or materials
stored on SBC's site.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
81
Agreement No. 980427
SECTION C
Page 80 of 85
TERM OF ORDER
The maintenance term will commence on the date set forth in the applicable
Order (but in no event earlier than the expiration of the warranty period for
the GPS Material involved) and continue for the initial maintenance term
specified therein and thereafter until canceled or terminated by SBC as
provided herein.
TIME AND MATERIAL
From time to time SBC may require Maintenance on GPS Material not covered under
a Maintenance Order. In these cases SBC will notify HWM of the problem and HWM
will provide assistance on a time and material basis. HWM will provide an
invoice to SBC for the services performed and SBC will make payment thirty (30)
days from the receipt of the invoice.
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
82
Agreement No. 980427
SECTION D
Page 81 of 85
SECTION D - HWM NETWORK SERVICES
GENERAL
This Section sets forth the terms and conditions relating to collection and
delivery of data by HWM as well as the specific Services provided for the
monthly fee listed in Appendix II, Pricing.
SCOPE OF RESPONSIBILITY
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
SCOPE OF RESPONSIBILITY (CONTINUED)
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
NETWORK SERVICE TERMS
a SERVICES PROVIDED. [Text has been omitted pursuant to a request for
confidential treatment. The omitted material has been filed separately with the
SEC.]
b AVAILABILITY OF SERVICE.
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
c SERVICE COMMITMENT. [Text has been omitted pursuant to a request for
confidential treatment. The omitted material has been filed separately with the
SEC.]
SCOPE OF RESPONSIBILITY (CONTINUED)
NETWORK SERVICE TERMS (Continued)
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
d RATES, CHARGES, BILLING AND PAYMENT FOR SERVICES. HWM will render to SBC
a monthly combined ▇▇▇▇ for the Enhanced Services and Enhanced
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
83
Agreement No. 980427
SECTION D
Page 82 of 85
Cellular Roaming service with each listed separately. SBC will receive a
paper ▇▇▇▇ unless electronic media is requested. SBC agrees to accept
responsibility for all calls made by SBC or its authorized users. The
rates for all services hereunder effective on the date of this Agreement
are set forth in this Agreement. Payment shall be due net thirty (30)
after receipt of invoice. All service fee payments shall be due and
payable to HWM Corporation at ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
e TAXES, DUTIES & SURCHARGES FOR SERVICES. All service charges are subject
to federal, foreign, state and/or local excise, sales, use, property,
retailers, occupation or other taxes, duties or surcharges. If any
governmental tax, duty or surcharge is determined to be applicable, then
SBC shall pay to HWM the full amount of any such tax, duty or surcharge at
the time payment is due for other charges pursuant to paragraph d above
herein.
f NONPAYMENT OF SERVICE FEES. A late payment charge of ten dollars ($10.00)
or one and one-half (1 1/2) percent of the outstanding balance, whichever
is higher, shall be assessed on a monthly basis on payments not paid by the
due date.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
84
Agreement No. 980427
SECTION D
Page 83 of 85
SCOPE OF RESPONSIBILITY (CONTINUED)
NETWORK SERVICE TERMS (CONTINUED)
g PRIVACY OF COMMUNICATION. In rendering service under this Agreement,
HWM will make reasonable efforts to protect the privacy of SBC's
communications. However, absolute privacy of communications is not
guaranteed. SBC acknowledges that wireless communications, including
cellular, satellite and other transmissions, are subject to
interceptions by parties possessing certain types of radio equipment
without the knowledge or permission of the user.
h LIMITED WARRANTY FOR SERVICES. During the duration of this Agreement,
HWM warrants that the Enhanced Services provided during Phases I, II
and III shall operate in good working order and that the Enhanced
Cellular Roaming services provided only during Phase I shall be in good
working order and available to SBC's vehicles equipped with Mobile
Communications Unit(s) when within the service areas of cellular
carriers offering cellular services to HWM.
i LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY FOR SERVICES. SBC agrees
that the liability of HWM, if any, for interruptions, delays, and
failures in transmission of service ("service problems") to SBC (except
for SBC's own negligence or misconduct, for which SBC shall be solely
liable), is limited solely to the allowance of a credit as specified in
the Grade of Service section of this Agreement.
j REGULATORY STATUS. HWM and SBC acknowledge that HWM is a private
enhanced services provider, and that HWM's provision of the Enhanced
Services and its obtaining for SBC the Enhanced Cellular Roaming, are
in no way intended to impute to HWM the regulatory status of
telecommunications common carrier. To the extent the telecommunications
services addressed by this Agreement are provided to SBC by third party
telecommunications companies, HWM and SBC acknowledge that only the
third party telecommunications company providing such services may be
construed, if applicable, as a telecommunications common carrier. To
the extent federal, state, or local laws or regulations change or are
interpreted otherwise, SBC agrees to execute any reasonable retroactive
modification
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
85
Agreement No. 980427
SECTION D
Page 84 of 85
SCOPE OF RESPONSIBILITY (CONTINUED)
NETWORK SERVICE TERMS (CONTINUED)
to this agreement which does not affect the nature or cost of the
service, to the extent necessary to protect HWM against unfavorable
regulatory classifications.
k INTELLECTUAL PROPERTY RIGHTS. Unless otherwise specified in this
Agreement, HWM retains sole title to any intellectual property of HWM
utilized in conjunction with this Agreement. This Agreement does not
constitute a license to use any intellectual property owned or
controlled by HWM, except as set forth in this Agreement.
ALARM MONITORING
SCOPE
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
DESCRIPTION OF SERVICE
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
86
Agreement No. 980427
SECTION E
Page 85 of 85
SECTION E-ENTIRE AGREEMENT
ENTIRE AGREEMENT
The terms contained in this Agreement, and any Orders, including all Exhibits
and subordinate documents attached to or referenced in the Agreement or any
Orders, will constitute the entire agreement between HWM and SBC with regard to
the subject matter hereof and supersede all prior oral and written
communications, agreements and understandings of the parties, if any, with
respect hereto. This Agreement may not be modified expect by a written
instrument signed on behalf of both parties by the representatives who sign
this Agreement or their successors in title and authority. If either
representative is no longer employed by SBC/HWM or has been demoted, or if the
approval level no longer exists, a manager at a level equal to or exceeding the
original level must execute revisions to this Agreement.
SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY HIGHWAYMASTER CORPORATION ACCEPTED:
ACCEPTED:
By: (x) ▇▇▇▇▇ ▇▇▇▇▇ by ▇. ▇. Given By: (x) ▇▇▇▇ ▇▇▇▇
------------------------------ --------------------------
Title: President-Corporate and Title: President and CEO
---------------------------- ----------------------------
Administrative Services
---------------------------
Date: 12/18/98 Date: 1/13/99
-------- -------
PACIFIC ▇▇▇▇ ACCEPTED: NEVADA ▇▇▇▇ ACCEPTED:
By: (x) ▇▇▇▇▇ ▇▇▇▇▇ by ▇. ▇. Given By: (x) ▇▇▇▇▇ ▇▇▇▇▇ by ▇. ▇. Given
------------------------------ -------------------------------
Title: President-Corporate and Title: President-Corporate and
----------------------- ----------------------------
Administrative Services Administrative Services
------------------------ ----------------------------
Date: 12/18/98 Date: 12/18/98
-------- --------
SOUTHERN NEW ENGLAND TELEPHONE ACCEPTED:
By: (x) ▇▇▇▇▇ ▇▇▇▇▇ by ▇. ▇. Given
------------------------------
Title: President-Corporate and
-----------------------
Administrative Services
-----------------------
Date: 12/18/98
--------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
87
AGREEMENT NO. 980427
APPENDIX I
PAGE 1 OF 25
APPENDIX I - GPS SPECIFICATIONS
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
88
AGREEMENT NO. 980427
APPENDIX II
PAGE 1 OF 3
APPENDIX II - PRICING FOR DEPLOYMENT OF INITIAL 11,5000 GPS UNITS
[Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the
SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
89
AGREEMENT NO. 980427
APPENDIX II
PAGE 2 OF 3
APPENDIX II - PRICING FOR DEPLOYMENT ABOVE INITIAL 11,5000 GPS UNITS
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
90
AGREEMENT NO. 980427
APPENDIX II
PAGE 3 OF 3
HWM NETWORK SERVICE CENTER MONTHLY FEE
[Text has been omitted pursuant to a request for confidential treatment. The
omitted material has been filed separately with the SEC.]
NOTE: PRICES ABOVE DO NOT INCLUDE APPLICABLE TAXES, AND SURCHARGES WHICH WILL
BE BILLED AS A SEPARATE ITEM ON THE INVOICE.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
91
AGREEMENT NO. 980427
APPENDIX III
PAGE 1 OF 1
APPENDIX III - CHANGE ORDER
-------------------------------------
CONTRACT/P.O. #
-------------------------------------
--------------------------------------------
LOCATION:
--------------------------------------------
-------------------------------------------------------------------------------
REQUEST NUMBER ORIGINATOR DATE ORIGINATED DATE ACCEPTED
-------------- ---------- --------------- -------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
DETAILED DESCRIPTION OF CHANGE REQUESTED (ATTACH ADDITIONAL INFORMATION IF
REQUIRED)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
IDENTIFY COST,
IF ANY:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
ARE CHANGES REQUIRED TO THE GPS SPECIFICATIONS - IF YES,
DESCRIBE AND ATTACH COPY OF CHANGES REQUESTED YES NO
----- ----
-------------------------------------------------------------------------------
---------------
AUTHORIZATIONS:
---------------
-------------------------------------------------------------------------------
SBC: HWM:
-------------------------------------------------------------------------------
NAME: NAME:
-------------------------------------------------------------------------------
DATE: DATE:
-------------------------------------------------------------------------------
UPON ACCEPTANCE RETURN ONE COPY TO:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇-▇-▇▇, ▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
92
AGREEMENT NO. 980427
APPENDIX IV
PAGE 1 OF 2
APPENDIX IV - EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS
Work under this contract may be subject to the provisions of certain Executive
Orders, federal laws, state laws, and associated regulations governing
performance of this contract including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701, and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973 as amended and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such
Executive Orders, federal laws, state laws, and associated regulations apply to
the work under this contract, and only to that extent, Contractor agrees to
comply with the provisions of all such Executive Orders, federal laws, state
laws, and associated regulations, as now in force or as may be amended in the
future, including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT CONTRACTORS
In accordance with 41 C.F.R.Section 60-1.4(a), the parties incorporate
herein by this reference the regulations and contract clauses required by that
section, including but not limited to, Contractor's agreement that it will not
discriminate against any employee or applicant for employment because of race,
color, religion, sex, or national origin. The Contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex, or
national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R.Section 60-1.8, Contractor agrees that it does
not and will not maintain or provide for its employees any facilities
segregated on the basis of race, color, religion, sex, or national origin at
any of its establishments, and that it does not and will not permit its
employees to perform their services at any location, under its control, where
such segregated facilities are maintained. The term "facilities" as used
herein means waiting rooms, work areas, restaurants and other eating areas,
time clocks, rest rooms, wash rooms, locker rooms and other storage or dressing
areas, parking lots, drinking fountains, recreation or entertainment areas,
transportation, and housing facilities provided for employees; provided, that
separate or single-user restroom and necessary dressing or sleeping areas shall
be provided to assure privacy between the sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
Contractor agrees that it has developed and is maintaining an Affirmative
Action Plan as required by 41 C.F.R.Section 60-1.4(b).
4. AGREEMENT OF FILING
Contractor agrees that it will file, per current instructions, complete and
accurate reports on Standard Form 100 (EE0-1), or such other forms as may be
required under 41 C.F.R.Section 60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS, VETERANS
OF THE VIETNAM ERA.
In accordance with 41 C.F.R.Section 60-250.20, and 41 C.F.R.Section
60-741.20, the parties incorporate herein by this reference the regulations and
contract clauses required by those provisions to be made a part of government
contracts and subcontracts.
6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
CONCERNS
As prescribed in 48 C.F.R., Ch. 1, 19.708(a):
(a) It is the policy of the United states that small business concerns,
small business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women shall have the maximum practicable opportunity to participate in
performing contracts let by any Federal agency, including contracts and
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
93
AGREEMENT NO. 980427
APPENDIX IV
PAGE 2 OF 2
APPENDIX IV - EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS
sub-contracts for systems, assemblies, components, and related services for
major systems. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment amounts due
pursuant to the terms of the subcontracts with small business concerns, small
business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women.
(b) The Contractor hereby agrees to carry out this policy in the awarding
of subcontracts to the fullest extent consistent with efficient contract
performance. The Contractor further agrees to cooperate in any studies or
surveys as may be conducted by the United States Small Business Administration
or the awarding agency of the United States as may be necessary to determine
the extent of the Contractor's compliance with this clause.
(c) As used in this contract, the term small business concern shall mean a
small business as defined pursuant to section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term small business
concern owned and controlled by socially and economically disadvantaged
individuals shall mean a small business concern which is at least 51 percent
unconditionally owned by one or more socially and economically disadvantaged
individuals; or, in the case of any publicly owned business, at least 51
percent of the stock of which is unconditionally owned by one or more socially
and economically disadvantaged individuals; and (2) whose management and daily
business operations are controlled by one or more such individuals. This term
also means small business concern that is at least 51 percent unconditionally
owned by an economically disadvantaged Indian tribe or Native Hawaiian
Organization, or a publicly owned business having at least 51 percent of its
stock unconditionally owned by one of these entities which has its management
and daily business controlled by members of an economically disadvantaged
Indian tribe or Native Hawaiian Organization, and which meets the requirements
of 13 CRF part 124. The Contractor shall presume that socially and
economically disadvantaged individual include Black Americans, Hispanic
Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian
Americans, and other minorities, or any other individual found to be
disadvantaged by the Administration pursuant to section 8(a) of the Small
business Act. The Contractor shall presume that socially and economically
disadvantaged entities also include Indian Tribes and Native Hawaiian
Organizations.
(d) The term "small business concern owned and controlled by women" shall
mean a small business concern (i) which is at least 51 percent owned by one or
more women, or, in the case of any publicly owned business, at least 51 percent
of the stock of which is owned by one or more women, and (ii) whose management
and daily business operations are controlled by one or more women; and
(e) Contractors acting in good faith may rely on written representations by
their sub-contractors regarding their status as a small business concern, a
small business concern owned and controlled by socially and economically
disadvantage individuals or a small business concern owned and controlled by
women.
7. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUB-CONTRACTING
PLAN.
The sub-contractor will adopt a plan similar to the plan required by 48 CFR
Ch. 1 at 52.219-9.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
94
AGREEMENT NO. 980427
APPENDIX V
PAGE 1 OF 18
QUALITY MANUAL
HIGHWAYMASTER CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
DOCUMENTATION REVIEW
-----------------------------------------------------------
TITLE NAME
----------------------------- --------------
COO ▇▇▇▇▇▇ Quick
-----------------------------------------------------------
Director Materials Operations ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
95
AGREEMENT NO. 980427
APPENDIX V
PAGE 2 OF 18
INDEX
1 THE CORPORATE QUALITY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 QUALITY POLICY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 PURPOSE AND APPLICABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 APPLICABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4 QUALTIY SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 MANAGEMENT RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 QUALITY SYSTEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.3 CONTRACT REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.4 DESIGN CONTROL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 DOCUMENT CONTROL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.6 PURCHASING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.7 PURCHASER SUPPLIED PRODUCTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.8 PRODUCT IDENTIFICATION / TRACEABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.9 PROCESS CONTROL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.10 INSPECTION AND TESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.11 INSPECTION, MEASURING AND TEST EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . 13
4.12 INSPECTION AND TEST STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.13 CONTROL OF NON-CONFORMING PRODUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.14 CORRECTIVE AND PREVENTIVE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.15 HANDLING, STORAGE, PACKAGING, PRESERVATION AND DELIVERY . . . . . . . . . . . . . . . . . 16
4.16 QUALITY RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.17 INTERNAL QUALITY AUDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
96
AGREEMENT NO. 980427
APPENDIX V
PAGE 3 OF 18
4.18 TRAINING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.19 SERVICING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.20 STATISTICAL TECHNIQUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
97
AGREEMENT NO. 980427
APPENDIX V
PAGE 4 OF 18
1 THE CORPORATE QUALITY STATEMENT
HIGHWAYMASTER IS A CUSTOMER-ORIENTED SUPPLIER
OF QUALITY PRODUCTS AND SERVICES. OUR TEAM IS
COMMITTED TO BEING THE PREFERRED SUPPLIER TO THE
INDUSTRIES WE SERVE BY PROVIDING SATISFACTION FOR
OUR CUSTOMERS. WE ARE DEDICATED TO CONTINUOUS IMPROVEMENT
AND STRIVE TO BE THE BEST IN EVERYTHING WE DO.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
98
AGREEMENT NO. 980427
APPENDIX V
PAGE 5 OF 18
2 QUALITY POLICY
HighwayMaster is committed to achieving Total Customer Satisfaction and
promoting continuous improvement throughout the organization. Every
employee is responsible for identifying and meeting customer
expectations. We are committed to provide our employees the necessary
tools, information and authority which allows them to make quality
decisions for HighwayMaster and its customers.
3 PURPOSE AND APPLICABILITY
3.1 PURPOSE
The purpose of this quality policy is to present HighwayMaster's concept
of the requirements for producing products and services that are
intended to meet the customer's needs and expectations. HighwayMaster is
committed to the increasing trend towards more stringent customer
expectations with regard to quality. HighwayMaster also realizes that
accompanying this trend there has been a growing realization that
continual improvements in quality are often necessary to achieve and
sustain good economic performance.
3.2 APPLICABILITY
This policy is applicable to all products and services sold by
HighwayMaster, inclusive of all programs that come under special quality
specifications and individual customer specifications.
4 QUALITY SYSTEM
HighwayMaster's quality system seeks to accomplish three objectives
regarding quality:
a. HighwayMaster shall achieve and sustain the quality of the product
or service produced so as to continually meet the customer's
stated or implied needs.
b. HighwayMaster shall provide confidence to its own management that
the intended quality is being achieved and sustained.
c. HighwayMaster shall provide confidence to the customer that the
intended quality is being, or will be, achieved in the delivered
product or service provided.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
99
AGREEMENT NO. 980427
APPENDIX V
PAGE 6 OF 18
4.1 MANAGEMENT RESPONSIBILITY
Management will define and document its policy and objectives for, and
commitment to, Quality. Management has the responsibility for providing
the necessary planning, resource allocation, training, operations, and
evaluation of quality. Management will ensure that this policy is
understood, implemented and maintained at all levels in the
organization.
4.2 QUALITY SYSTEMS
HighwayMaster shall institute and sustain a documented quality system.
This system will ensure that HighwayMaster builds a quality product that
meets all specified requirements. This system shall include:
4.2.1 The preparation of documented quality system procedures and instructions
in accordance with our customers requirements.
4.2.2 The effective implementation of those procedures and instructions
designed to ensure a quality product.
4.2.3 The timely preparation of quality plans and other quality documentation
as required by the customer. In the interest of standardization and
minimizing duplication of effort, this Quality Manual will be used as the
standard Quality Plan. Exceptions to the policy manual will be listed
separately as the customer Quality Plan.
4.2.4 The identification and acquisition of any controls, processes, inspection
equipment, tools, fixtures, and other equipment that may be required to
achieve the desired quality results.
4.2.5 The identification of specific skills needed to achieve the required
quality and the necessary training to ensure that qualified personnel
are performing to specified capabilities.
4.2.6 The updating, as required, of quality assurance, inspection and testing
techniques, equipment and other measuring devices to meet changes in
requirements and capabilities.
4.2.7 The identification, preparation and maintenance of quality records, and
reports as required by the customer.
4.2.8 An auditing system that ensures the compliance to all aspects of the
quality system as defined in this procedure.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
100
AGREEMENT NO. 980427
APPENDIX V
PAGE 7 OF 18
4.3 CONTRACT REVIEW
HighwayMaster shall maintain a procedure for contract review. Product
Management shall ensure that Quality Engineering reviews customer
contracts for the following if required:
4.3.1 Quality requirements are adequately defined and documented.
4.3.2 Any quality requirements that are different from normal quality
specifications or requirements are resolved before the final signing of
the contract.
4.3.3 HighwayMaster has the capability to meet the contractual quality
requirements or is in the process of attaining those capabilities.
Product Management shall maintain records of the contract review.
4.4 DESIGN CONTROL
HighwayMaster design capability includes analog, digital, microprocessor
circuitry, as well as the complete capability for printed circuit board
and mechanical packaging design. HighwayMaster capability also includes
software development design capabilities.
Design Control procedures are written to ensure that design activities
meet requirements, are planned so that qualified personnel are assigned
to the project, and that all requirements are identified, documented,
and reviewed. The controlling procedures for ECR is #P0001 and the
controlling procedures for ECN is # P0002. Software and Hardware Design
Engineering departments control the various activity procedures
internally.
4.5 DOCUMENT CONTROL
All documents for HighwayMaster are reviewed and approved prior to
issue. Appropriate documents are available at locations where they are
intended to be used. Obsolete documents are removed from points of use
and retained in accordance with document control procedures.
4.5.1 Controlled Documentation
4.5.1.1 Quality system documents comprises the following type documents:
4.5.1.1.1 Quality Manual
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
101
AGREEMENT NO. 980427
APPENDIX V
PAGE 8 OF 18
4.5 DOCUMENT CONTROL (CONTINUED)
4.5.1.2.1 Requirements
4.5.1.2.2 Drawings
4.5.1.2.3 Engineering Change Notices
4.5.1.2.4 Manufacturing Deviations
4.5.1.2.5 Related Form
4.5.2 Document Approval
Management initializes document changes. All documents are reviewed and
approved prior to issue. A master file of all documents is maintained
and is comprised of the document, revision, status, release date, change
date and the location(s) of the documents. Documents are distributed to
personnel and locations where they are used. When appropriate and
relevant, documents display an approval list.
4.5.3 Document Changes
4.5.3.1 Document changes are reviewed and authorized by the Implementation
Readiness Review (IRR) committee and Configuration Control Board (CCB)
teams. Revised portions of documents are distributed with a change
brief, and obsolete documents are removed. A master list specifying
the latest issues and revisions is maintained.
4.5.3.2 A notice of change documents is released to the appropriate personnel.
4.6 PURCHASING
HighwayMaster assesses its suppliers and subcontractors and purchases
only from those that can satisfy the company's quality requirements.
Purchasing documents clearly and completely describe ordered products,
including quality requirements. Purchasing documents are approved prior
to release.
4.6.1 Procurement
HighwayMaster will procure materials for each program utilizing prints
and specifications generated internally. In the absence of these, the
supplier's specifications shall be used. Purchasing requirements shall
contain the necessary data to adequately describe the product being
ordered, to include, where applicable:
4.6.1.1 A complete description of the product required
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
102
AGREEMENT NO. 980427
APPENDIX V
PAGE 9 OF 18
4.6 PURCHASING (CONTINUED)
4.6.1.2 A listing of applicable specifications, drawing, process requirements,
testing, inspection and/or any other technical data that is required.
Notation of special approvals or qualifications of product,
procedures, process or personnel.
4.6.1.3 Purchasing will verify that the material being ordered meets the
current revision. Assumptions on revision levels will not be made
based on previous orders.
4.6.1.4 When applicable, Quality shall review and approve purchasing documents
for adequacy of specified requirements prior to release.
4.6.2 Approved/Qualified Vendor's List (AVL)
Purchasing will procure components and raw materials from only those
specified suppliers on the AVL. If additional suppliers are needed,
Purchasing will seek approval for additional suppliers through
Engineering, Materials Operations, Quality Assurance, and the customer.
Purchasing will select additional suppliers on the basis of their
ability to meet contractual requirements, including quality
requirements. HighwayMaster shall, through Quality Engineering, survey
additional suppliers as required using the Supplier Qualification
Procedure. (See Supplier Performance Evaluation MOP # 401)
4.6.3 Supplier Selection and Control
Supplier selection and control shall be the responsibility of Materials
Operations. The HighwayMaster Quality Department, using the
HighwayMaster Supplier Survey form (See Supplier Performance Evaluation
MOP # 401) will survey new suppliers. After the survey, the supplier
will be notified of the survey results, along with any required
corrective action, within two weeks of survey completion.
The Quality Department will maintain ongoing records of lot acceptance
rates (LAR) and delivery performance for each approved supplier.
Suppliers will be surveyed annually. Product source inspections will be
done quarterly. (See Supplier Performance Evaluation MOP # 401)
Failure to adequately respond to a Supplier Corrective Action Request
may be grounds for supplier disqualification.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
103
AGREEMENT NO. 980427
APPENDIX V
PAGE 10 OF 18
4.6 PURCHASING (CONTINUED)
4.6.4 Supplier Report Card
A supplier report card shall be sent to each supplier at the end of each
month. The report card will list monthly and Year To Date (YTD) Lot
Acceptance Rate (LAR) and delivery performance, On Time Delivery (OTD).
The Quality Department has responsibility for maintaining these records
and sending the report cards.
4.6.5 Incoming Quality Assurance (IQA)
All production component and materials will be inspected by IQA to a
predetermined sampling plan using the relevant specifications. Where
deemed acceptable, "Ship to Stock" procedures will be established with
qualified suppliers. When incoming material is released for urgent
production purposes, it shall be identified and recorded in order to
permit recall and replacement in the event of non-conformances to
specified requirements.
4.6.5.1 Component Inspection & Test Planning
A dedicated inspection station shall be maintained at the
HighwayMaster Warehouse consisting of an inspection area,
appropriate tools, and file cabinets for drawings, procedures,
sampling plans, and test results. This station will be under the
control of the Quality Department.
4.6.5.2 First Article Inspection
First Article Inspection will be performed per First Article
procedure on all unique components (sheet metal, castings, PC
Boards, cabled, etc.). A copy of the First Article findings will
be placed in the Supplier history files. New revisions will be
incorporated into the First Articles as they are released through
the ECO procedure.
4.6.5.3 Lot Sampling And Record Keeping
Quality inspection instruction documents will be created for each
part, as new parts are received. These documents will detail
administrative, mechanical, and electrical tests to be performed
on each lot. An Acceptable Quality Level (AQL) sampling plan based
on ANSI ASQC Z1.4 will be created for each part. Normal inspection
levels (single sampling plan) will be used for all parts
initially. The HighwayMaster quality engineer has the authority to
change a plan to reduced or tightened inspection, based on quality
history.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
104
AGREEMENT NO. 980427
APPENDIX V
PAGE 11 OF 18
4.6 PURCHASING (CONTINUED)
Inspection results will be recorded on the HighwayMaster
Inspection Summary form.
Non-conforming material shall be tagged "reject" and segregated
from acceptable and untested material where it will await
dispositioning by the Material Review Board. A one hundred percent
inspection of a rejected lot many be performed at the direction of
the Quality Engineer in the event that material is urgently
needed.
Each rejected lot shall be cause for us issuance of a Supplier
Corrective Action Request (SCAR).
4.6.5.4 Non-Conforming Material Control
A Material Review Board (MRB) shall review and disposition all
non-conforming and rejected procured material. The disposition
process is documented. The MRB shall consist of representatives
form Quality, Engineering, Purchasing, and Product Integrity. The
quality representative will chair the board.
The function of this board shall be the dispositioning of
non-conforming material. The five acceptable dispositions are:
4.6.5.4.1 Return To Vendor (RTV)
4.6.5.4.2 Use As Is (USI)
4.6.5.4.3 Scrap (SCP)
4.6.5.4.4 Rework (RWK)
4.6.5.4.5 Re-Inspect (REI)
4.6.5.5 Correction Action Request
Supplier correction action is a corrective action initiated by
HighwayMaster to resolve customer complaints regarding defective
product.
If the product is found to be defective, the Quality Department
will initiate appropriate corrective action, at the manufacturer
of the product. The corrective action will be documented and
maintained in the Corrective Action Log.
4.7 PURCHASER SUPPLIED PRODUCTS
Not Applicable for HighwayMaster at this time.
4.8 PRODUCT IDENTIFICATION / TRACEABILITY
HighwayMaster establishes and maintains procedures for marking the product
from applicable drawings, specifications, or other documents, during
production and delivery. Markings used for product identification include,
but not limited to:
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
105
AGREEMENT NO. 980427
APPENDIX V
PAGE 12 OF 18
a) labels
b) storage bins
c) product location
Such information is also used to maintain identification throughout the
production process. When tractability is a contractual requirement,
individual products or batches have a unique identification.
4.9 PROCESS CONTROL
HighwayMaster shall plan the production of assemblies and units so that a
quality product is produced and the processes are carried out under
controlled conditions.
4.9.1 Refer to subcontract manufacturer quality system.
4.9.2 Process Documentation
4.9.2.1 Manufacturing
Documentation for manufacturing shall be provided my
HighwayMaster's contract manufactures. Documents should include
the following types"
a) Work Instructions for each assembly with set-up and
detailed methods interactions
b) Material handling specification when required
c) Process specifications
d) Process flow charts
e) Quality flow-charts
f) Product traceability
g) Procedure for rework and repair to assemblies and units
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
106
AGREEMENT NO. 980427
APPENDIX V
PAGE 13 OF 18
4.10 INSPECTION AND TESTING
Inspection and testing are conducted when purchased materials are
received, at significant stages of production, prior to shipping stages
of production, and prior to shipping finished product. The objective of
inspections and testing is to verify conformance with specified
requirements. Materials and products are prevented from being used or
shipped until the required inspections are completed. Records of
inspections are established and maintained as evidence that products
comply with stated requirements.
4.10.1 HighwayMaster's contract manufacturers shall provide procedures for
the following areas.
4.10.1.1 General
The general requirement for inspection and testing is documented
in the contract manufacturer's Quality Plan.
4.10.1.2 Receiving inspection and testing
The contract manufacturer's receiving inspection and testing plan
will be used to meet HighwayMaster requirements.
4.10.1.3 Final inspection and testing
The contract manufacturer's final inspection and testing plan will
be used to meet HighwayMaster requirements.
4.10.1.4 Inspection and test records
The contract manufacturer's inspection and test records plan will
be used to meet HighwayMaster requirements.
4.11 INSPECTION, MEASURING AND TEST EQUIPMENT
HighwayMaster policy requires that all tools, instruments, and test
equipment are in good repair and calibration. Refer to subcontract
manufacturer quality plan.
The contract manufacturer's procedures will be used to meet HighwayMaster
requirements for all products produced.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
107
AGREEMENT NO. 980427
APPENDIX V
PAGE 14 OF 18
4.12 INSPECTION AND TEST STATUS
The inspection and test status will be identified and maintained
throughout design, production, installation, and servicing of product.
This is defined in documented Quality Procedures and instructions to
ensure that only product which has passed required inspections and tests
is ultimately shipped to customers.
4.12.1 Nonconforming material is clearly identified and segregated
4.13 CONTROL OF NON-CONFORMING PRODUCT
Nonconforming product is identified, documented, evaluated, and
prevented from being used or shipped. Responsibility for disposition of
nonconforming product is defined and, when required, the customer is
contacted for advisement. Repaired or reworked product is reinspected.
4.13.1 Identification and Documentation
All nonconforming product that can not be corrected using IPC Standard
of repair or rework current revision is identified and documented.
4.13.2 Nonconforming Review and Disposition
A Material Review Board (MRB) shall review and disposition all
non-conforming and rejected product. The disposition process is
documented. The MRB shall consist of representatives form Quality,
Engineering, Purchasing, and Product Integrity. The quality
representative will chair the board. The function of this board shall
be the dispositioning of non-conforming product. The five acceptable
dispositions are:
4.13.2.1 Return To Vendor (RTV)
4.13.2.2 Use As Is (USI)
4.13.2.3 Scrap (SCP)
4.13.2.4 Rework (RWK)
Rework is subject to inspection after rework is performed
4.13.2.5 Re-Inspect (REI)
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
108
AGREEMENT NO. 980427
APPENDIX V
PAGE 15 OF 18
4.14 CORRECTIVE AND PREVENTIVE ACTION
Corrective action is taken to help assure identified problems are
quickly resolved to minimize potential quality issues and implement
permanent solutions. Corrective actions are issued, recorded, and
verified in accordance with documented procedures. Preventative action
is taken to assist management in continuous improvement efforts.
Preventative actions are also issued, recorded, and verified in
accordance with documented procedures.
4.14.1 Everyone in the organization is responsible for instituting,
monitoring, or requesting corrective/preventative actions. Problems
are evaluated for potential impact on production processes, safely,
quality, performance, reliability, or customer satisfaction. Sources
of data and information used in evaluation may come from failure
analysis results, manufacturing operations, or customers.
4.14.2 Problems are analyzed to determine whether immediate corrective action
is required. Action may include production stoppage, shipping hold,
stock purge, supplier hold, or product recall. Once immediate control
action has been taken, the cause is analyzed to determine required
corrective action. Short-term corrective actions may include customer
notification, rework, or product screening. Long-term corrective
actions include product redesign or production process revision.
4.14.3 After the cause of the problem has been identified, measures are also
taken to prevent its recurrence. Nonconforming items are properly
disposed of or corrected. The effects of these measures are audited to
assure the desired goals are met and the permanent changes are in
place, documented, and communicated.
4.14.4 Corrective Action Request
Contract Manufacturer of nonconforming product are sent a corrective
action request to verify continuous compliance of product requirements
4.14.5 Preventive actions plans will be created as needed to address longer
term trends as represented by quality related data.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
109
AGREEMENT NO. 980427
APPENDIX V
PAGE 16 OF 18
4.15 HANDLING, STORAGE, PACKAGING, PRESERVATION AND DELIVERY
All material and product is handled, stored, packaged, preserved and
delivered in a manner which prevents damage, deterioration, and
contamination.
4.15.1 Handling
Product handling is performed in a manner that prevents damage or
deterioration. Personnel are instructed in proper methods of ESD
control and general methods of handling.
4.15.2 Storage
Defined storage areas are provided to prevent damage or deterioration
of the product prior to use. The receipt and authorized issue of
product from the storage area is undertaken in line with written
procedures. Storage of product is controlled as to maintain product
quality.
4.15.3 Packaging
Product approved for delivery after final inspection and test has been
conducted, is packaged in such a manner as to provide adequate
protection from damage during storage and subsequent delivery. The use
and configuration of packaging materials is defined in written
specifications or in accordance with customer requirements. Packaged
product is suitably identified and the marking controlled.
4.15.4 Delivery
Product is afforded adequate protection after final inspection and
test. Where contractually specified, this protection is extended to
include delivery to destination.
4.16 QUALITY RECORDS
4.16.1 Control requirements
4.16.1.1 The Quality Engineering ensures that the records required in the
operation of the Quality Management System are properly
maintained.
4.16.1.2 Quality records are maintained to demonstrate achievement of the
required quality and the effectiveness of the Quality Management
System.
4.16.1.3 All quality records are legible and identifiable to the product or
process
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
110
AGREEMENT NO. 980427
APPENDIX V
PAGE 17 OF 18
4.16 QUALITY RECORDS (CONTINUED)
concerned. They may be in the form of any type of media including
electronic form. Quality records are stored and maintained in such
manner as to provide for ready access. Storage facilities are
selected to minimize deterioration or damage and prevent loss.
4.16.1.4 Regulatory Agency records, and Vendor supplied records related to
the quality of purchased goods shall be part of this system.
4.17 INTERNAL QUALITY AUDITS
4.17.1 The compliance and effectiveness of the Quality System is verified by
conducting internal quality audits on a regular basis. The results of
these audits are used by management to identify the state of the
Quality System.
4.17.2 Internal quality audits are performed by trained auditors who are
independent of the product, process or system that is audited. Audits
are planned and performed in accordance with documented procedures.
4.17.3 Records of all audits are maintained and reviewed with the responsible
management personnel.
4.17.4 Nonconformance identified during the audit process will be issued
corrective actions. These will be discussed and issued during the
management review. Corrective action follow-up will be performed in
accordance with documented procedures.
4.18 TRAINING
4.18.1 All personnel will have the necessary level of experience or training
to enable them to undertake designated tasks competently. In-house
training and certification, where specified, is provided. Where
necessary, external training resources and facilities will be
utilized.
4.18.2 Training records are maintained in accordance with documented
procedures. Records are maintained for all training carried out on
all employees, including internal, external, and on-the- job, courses
attended, and the qualification, and certificates received.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
111
AGREEMENT NO. 980427
APPENDIX V
PAGE 18 OF 18
4.19 SERVICING
Where servicing is a contractually specified requirement, the company
draws up a quality plan in consultation with the client to control this
activity. Documented procedures for performing, verifying and reporting
that serving meets specified requirements are established as servicing
activities are agree to.
4.20 STATISTICAL TECHNIQUES
4.20.1 Identification of Need
4.20.1.1 HighwayMaster's subcontractors will establish policy and
direction for Statistical Process Control implementation and
maintenance. Management may consist of: Directors of Manufacturing
or Engineering, Quality Assurance Director or their designee.
4.20.1.2 Statistical Control Techniques will be used throughout the
manufacturing process as a method of determining material, product
and process quality. An examination of the opportunity for
Statistical Control Techniques will be performed as new processes
are developed. Refer to subcontract manufacturer quality plan.
4.20.2 Procedures
4.20.2.1 Guidelines for the implementation of Statistical Control
Techniques are defined and documented at HighwayMaster's
subcontractors. Identification of statistical techniques that may
be used, the basis for selecting each method used as well as a
component for identifying when to use the method to verify
customers needs will be defined.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
112
Agreement No. 980427
Exhibit A
Page 1 of 3
================================================================================
PRIME SUPPLIER
MBE/WBE/DVBE PARTICIPATION PLAN
================================================================================
PRIME SUPPLIER NAME:
------------------------------------------------------------
ADDRESS:
------------------------------------------------------------------------
TELEPHONE NUMBER:
---------------------------------------------------------------
DESCRIBE GOODS OR SERVICES BEING PROVIDED UNDER THIS AGREEMENT:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DESCRIBE YOUR M/WBE-DVBE OR SUPPLIER DIVERSITY PROGRAM AND THE PERSONNEL
DEDICATED TO THAT PROGRAM:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
THE FOLLOWING, TOGETHER WITH ANY ATTACHMENTS IS SUBMITTED AS AN MBE/WBE/DVBE
PARTICIPATION PLAN.
1. GOALS
A. WHAT ARE YOUR MBE/WBE/DVBE PARTICIPATION GOALS?
o MINORITY BUSINESS ENTERPRISES (MBES) %
------
o WOMEN BUSINESS ENTERPRISES (WBES) %
------
o DISABLED VETERANS BUSINESS
ENTERPRISES (DVBES) %
------
B. WHAT IS THE ESTIMATED ANNUAL VALUE OF THIS CONTRACT WITH
PACIFIC ▇▇▇▇? ______________
SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY ("SBC")? ______________
OTHER SBC AFFILIATE? ______________
NOTE: INDICATE DOLLAR AWARD(S) AS IT APPLIES TO THIS CONTRACT
(I.E., PACIFIC ▇▇▇▇, SBC AND/OR AFFILIATE).
C. WHAT ARE THE DOLLAR AMOUNTS OF YOUR PROJECTED MBE/WBE/DVBE
PURCHASES?
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
113
Agreement No. 980427
Exhibit A
Page 2 of 3
o MINORITY BUSINESS ENTERPRISES (MBES)
--------
o WOMEN BUSINESS ENTERPRISES (WBES)
--------
o DISABLED VETERANS BUSINESS
ENTERPRISES (DVBES)
--------
*SEE MBE/WBE/DVBE CANCELLATION CLAUSE IN AGREEMENT FOR DEFINITIONS OF MBE, WBE,
AND DVBE*
2. LIST THE PRINCIPAL GOODS AND/OR SERVICES TO BE SUBCONTRACTED TO
MBE/WBE/DVBES OR DELIVERED THROUGH MBE/WBE/DVBE VALUE ADDED RESELLERS.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DETAILED PLAN FOR USE OF M/WBES-DVBES AS SUBCONTRACTORS,
DISTRIBUTORS, VALUE ADDED RESELLERS
FOR EVERY PRODUCT AND SERVICE YOU INTEND TO USE, PROVIDE THE FOLLOWING
INFORMATION: (ATTACH ADDITIONAL SHEETS IF NECESSARY)
COMPANY NAME CLASSIFICATION PRODUCTS/SERVICES $ VALUE DATE TO BEGIN
(MBE/WBE/DVBE) TO BE PROVIDED
------------ -------------- ----------------- ------- -------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
114
Agreement No. 980427
Exhibit A
Page 3 of 3
3. SELLER AGREES THAT IT WILL MAINTAIN ALL NECESSARY DOCUMENTS AND
RECORDS TO SUPPORT ITS EFFORTS TO ACHIEVE ITS MBE/WBE/DVBE
PARTICIPATION GOAL(S). SELLER ALSO ACKNOWLEDGES THE FACT THAT
IT IS RESPONSIBLE FOR IDENTIFYING, SOLICITING AND QUALIFYING
MBE/WBE/DVBE SUBCONTRACTORS, DISTRIBUTORS AND VALUE ADDED
RESELLERS.
4. THE FOLLOWING INDIVIDUAL, ACTING IN THE CAPACITY OF MBE/WBE/DVBE
COORDINATOR FOR SELLER, WILL:
o ADMINISTER THE MBE/WBE/DVBE PARTICIPATION PLAN,
o SUBMIT SUMMARY REPORTS, AND
o COOPERATE IN ANY STUDIES OR SURVEYS AS MAY BE REQUIRED IN ORDER
TO DETERMINE THE EXTENT OF COMPLIANCE BY THE SELLER WITH THE
PARTICIPATION PLAN.
NAME: (PRINTED)
-------------------------------------------------------
TITLE:
-----------------------------------------------------------------
TELEPHONE NUMBER:
------------------------------------------------------
AUTHORIZED SIGNATURE:
--------------------------------------------------
DATE:
------------------------------------------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
115
Agreement No. 980427
Exhibit B
Page 1 of 2
EXHIBIT B - PARTICIPATION PLANS AND RESULTS REPORTS
PRIME CONTRACTOR NAME:
ADDRESS:
TELEPHONE NUMBER:
RFQ/RFB/RFP/RFI NUMBER (IF APPLICABLE): NA
--
DESCRIPTION OF GOODS OR SERVICES:
DEFINITION: A COMMODITY (OR COMMERCIAL) PRODUCT IS DEFINED BY THE REGULATIONS AS
ONE IN REGULAR PRODUCTION THAT IS SOLD IN SUBSTANTIAL QUANTITIES TO
THE GENERAL PUBLIC AND/OR INDUSTRY AT REGULAR PRICES.
IF A COMPANY IS OFFERING A COMMODITY PRODUCT, THEN THE SUBCONTRACTING PLAN MAY
RELATE TO THE COMPANY'S GENERAL PRODUCTION OF BOTH COMMERCIAL AND NON-COMMERCIAL
PRODUCTS, RATHER THAN JUST SPECIFIC ITEMS BEING PROCURED UNDER THE CONTRACT.
THE FOLLOWING, TOGETHER WITH ANY ATTACHMENTS IS SUBMITTED AS AN MBE/WBE/DVBE
SUBCONTRACTING PLAN.
1. DO YOU PLAN TO SUBCONTRACT ANY PORTION OF THE GOODS OR SERVICES BEING
QUOTED, BID OR PROPOSED?
YES NO
2. IF ANSWER TO ITEM 1 IS YES,
A. WHAT IS YOUR OVERALL COMPANY MBE/WBE/DVBE PROGRAM GOAL:
o MINORITY BUSINESS ENTERPRISES (MBES) 0%
o WOMEN BUSINESS ENTERPRISES (WBES) 0%
o DISABLED VETERANS BUSINESS ENTERPRISES (DVBES) 0%
B. WHAT IS YOUR PROJECTED MBE/WBE/DVBE PURCHASES:
o MINORITY BUSINESS ENTERPRISES (MBES) 0%
o WOMEN BUSINESS ENTERPRISES (WBES) 0%
o DISABLED VETERANS BUSINESS ENTERPRISES (DVBES) 0%
* SEE MBE/WBE/DVBE CANCELLATION CLAUSE IN AGREEMENT FOR DEFINITIONS OF MBE,
WBE, AND DVBE*
3. IF ANSWER TO ITEM 1 IS NO, OR IF NO MBE/WBE/DVBE SUBCONTRACTORS WILL BE
UTILIZED WHERE SUBCONTRACTING HAS BEEN IDENTIFIED, PLEASE EXPLAIN IN
DETAIL: (ATTACH ADDITIONAL SHEETS IF NECESSARY)
NA
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.
116
Agreement No. 980427
Exhibit B
Page 2 of 2
4. LIST THE PRINCIPAL GOODS AND/OR SERVICES TO BE SUBCONTRACTED TO
MBE/WBE/DVBES, SHOULD YOUR QUOTATION, BID OR PROPOSAL BE ACCEPTED: (ATTACH
ADDITIONAL SHEETS IF NECESSARY)
5. DESCRIBE WHAT GOOD FAITH EFFORTS YOU PLAN TO UNDERTAKE TO ENSURE THAT
MBE/WBE/DVBES WILL HAVE AN EQUITABLE OPPORTUNITY TO COMPETE FOR
SUBCONTRACTS TO BE AWARDED: (ATTACH ADDITIONAL SHEETS IF NECESSARY)
6. THE CONTRACTOR AGREES THAT IT WILL MAINTAIN, IF AWARDED THE RESULTING
CONTRACT/PURCHASE OR WORK ORDER, ALL NECESSARY DOCUMENTS AND RECORDS TO
SUPPORT ITS EFFORTS TO ACHIEVE ITS ESTIMATED MBE/WBE/DVBE SUBCONTRACTING
GOAL(S). CONTRACTOR ALSO ACKNOWLEDGES THE FACT THAT IT WILL BE RESPONSIBLE
FOR IDENTIFYING, SOLICITING AND QUALIFYING MBE/WBE/DVBE SUBCONTRACTORS.
7. THE FOLLOWING INDIVIDUAL, ACTING IN THE CAPACITY OF MBE/WBE/DVBE
COORDINATOR FOR CONTRACTOR, WILL:
o ADMINISTER THE MBE/WBE/DVBE SUBCONTRACTING PLAN,
o SUBMIT SUMMARY REPORTS, AND
o COOPERATE IN ANY STUDIES OR SURVEYS AS MAY BE REQUIRED BY SWBT IN ORDER
TO DETERMINE THE EXTENT OF COMPLIANCE BY ATC WITH THE SUBCONTRACTING
PLAN.
NAME:
TITLE:
TELEPHONE NUMBER:
AUTHORIZED SIGNATURE:
TYPED/PRINTED NAME:
TITLE:
DATE:
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized
employees of the parties and their affiliates hereto only
and is not for general distribution within or
for distribution outside their respective
companies except by written agreement.