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EXHIBIT 10.42
TABLE OF CONTENTS
GENERAL AGREEMENT FOR PURCHASE OF CELLULAR SYSTEMS
PAGE
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1. ARTICLE I GENERAL PROVISIONS APPLICABLE TO ENTIRE AGREEMENT............................................ 1
1.1. HEADINGS AND DEFINITIONS....................................................................... 1
1.2. TERM OF AGREEMENT.............................................................................. 5
1.3. SCOPE.......................................................................................... 5
1.4. PURCHASE OF SYSTEMS, PRODUCTS, SERVICES AND LICENSED MATERIALS................................. 7
1.5. ADDITIONS TO SYSTEMS........................................................................... 7
1.6. PLANNING INFORMATION........................................................................... 8
1.7. ORDERS......................................................................................... 8
1.8 ORDER ACCEPTANCE:.............................................................................. 8
1.9 CHANGES IN CUSTOMER'S ORDERS................................................................... 9
1.10 PRICING........................................................................................ 9
1.10.1 Special Discounts and Incentives...................................................... 10
1.11 INVOICES AND TERMS OF PAYMENT.................................................................. 17
1.11.1 Engineer, Furnish and Install (EF&I) Orders:...................................... 17
1.11.2 Early Payment Discounts:.............................................................. 18
1.11.3 Electronic Funds Transfer (EFT) Payments:............................................. 18
1.11.4 Payments By Check (Non-EFT):.......................................................... 18
1.12. DELIVERY AND INSTALLATION SCHEDULE............................................................. 19
1.13. TRANSPORTATION................................................................................. 19
1.14. PACKING, MARKING, AND SHIPPING:................................................................ 19
1.15. TITLE AND RISK OF LOSS:........................................................................ 20
1.16. COMPLIANCE WITH LAWS:.......................................................................... 20
1.17. TAXES:......................................................................................... 20
1.18. TRAINING:...................................................................................... 20
1.19. TERMINATION FOR CONVENIENCE:................................................................... 21
1.20. CANCELLATION FOR BREACH:....................................................................... 21
1.21. PATENTS, TRADEMARKS AND COPYRIGHTS:............................................................ 21
1.22. USE OF INFORMATION:............................................................................ 23
1.23. NOTICES:....................................................................................... 23
1.24. RIGHT OF ACCESS:............................................................................... 24
1.25. INDEPENDENT CONTRACTOR:........................................................................ 24
1.26. CUSTOMER'S REMEDIES:........................................................................... 24
1.27. FORCE MAJEURE:................................................................................. 25
1.28. ASSIGNMENT:.................................................................................... 25
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1.29. PUBLICITY:..................................................................................... 26
1.30. APPLICABLE LAW:................................................................................ 26
1.31. SURVIVAL OF OBLIGATIONS:....................................................................... 26
1.32. SEVERABILITY:.................................................................................. 26
1.33. NON-WAIVER:.................................................................................... 27
1.34. CUSTOMER RESPONSIBILITY........................................................................ 27
1.35. PUBLICATION OF AGREEMENT....................................................................... 27
1.36. ARBITRATION:................................................................................... 27
1.37. DUTIES OF GOOD FAITH........................................................................... 29
2. ARTICLE II PROVISIONS APPLICABLE TO THE PURCHASE OF PRODUCTS........................................... 30
2.1. GENERAL:....................................................................................... 30
2.2. PRODUCT AVAILABILITY:.......................................................................... 30
2.3. DOCUMENTATION:................................................................................. 30
2.4. PRODUCT COMPLIANCES:........................................................................... 30
2.5. PRODUCT CHANGES:............................................................................... 31
2.6. CONTINUING PRODUCT SUPPORT - PARTS AND SERVICES:............................................... 31
2.7. SPECIFICATIONS:................................................................................ 32
2.8. CUSTOMER TECHNICAL SUPPORT:.................................................................... 32
2.9. PRODUCT WARRANTY:.............................................................................. 32
3. ARTICLE III............................................................................................. 36
3.1. GENERAL:....................................................................................... 36
3.2. LICENSE:....................................................................................... 36
3.3. TITLE, RESTRICTIONS AND CONFIDENTIALITY:....................................................... 36
3.4. CHANGES IN LICENSED MATERIALS:................................................................. 37
3.5. SOFTWARE MODIFICATION REQUESTS:................................................................ 37
3.6. MODIFICATION BY CUSTOMER:...................................................................... 37
3.7. RELATED DOCUMENTATION:......................................................................... 37
3.8. SOFTWARE WARRANTY:............................................................................. 37
3.9. TAXES APPLICABLE TO SOFTWARE:.................................................................. 38
3.10. LIMITED TRANSFERABILITY:....................................................................... 39
3.11. AVAILABILITY AND SUPPORT OF SOFTWARE FEATURES/UPDATES:......................................... 40
4. ARTICLE IV.............................................................................................. 41
4.1. GENERAL:....................................................................................... 41
4.2. ACCEPTANCE OF INSTALLATION:.................................................................... 41
4.3. CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON CUSTOMER'S SITE:.................... 41
4.3.1. ITEMS PROVIDED BY CUSTOMER............................................................ 41
4.3.2. ITEMS TO BE FURNISHED BY SELLER....................................................... 45
4.4. WORK DONE BY OTHERS:........................................................................... 46
4.5. SERVICES WARRANTIES:........................................................................... 46
5. ARTICLE V............................................................................................... 47
5.1. ENTIRE AGREEMENT:.............................................................................. 47
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LIST OF ATTACHMENTS
Attachment A New Series IIe Cell Site Configuration /Pricing
Omni 15 Channel
Attachment A-1 New Series IIe Cell Site Configuration /Pricing
Omni 25 Channel
Attachment A-2 New Series II Cell Site Configuration /Pricing
3 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ A-3 New Series II Cell Site Configuration /Pricing
3 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ A-4 New Series IIm Cell Site Configuration /Pricing
Omni 7 Channel
Attachment A-5 New Series IIm Cell Site Configuration /Pricing
Omni 15 Channel
Attachment B New Series IIe Cell Site Configuration /Pricing
Omni 9 Growth Cabinet
Attachment C New Series IIe Cell Site Configuration /Pricing
Growth from Omni 25 to 3-Sector 25 Channel
Attachment D CDMA Implementation in Series II Cell Site
Configuration/Pricing
Attachment E Software Package Feature List
Attachment F Autoplex CTSO Fax Flash Installation of 8 Meg
Memory Boards
Attachment G 60 DS1 5ESS-CDX Switch Configuration/Pricing
Attachment H ECP Equipment for 5ESS-CDX Switch
Configuration/Pricing
Attachment I Billings/Fargo Swapout - Spares
Attachment J Billings/Fargo Swapout
Attachment K 5ESS Landline Configuration/Pricing
Attachments -1
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Attachment L Billing (ECP - IMS Removal) Quote
Attachment M Project Implementation Schedule
Attachment N Buyer Companies
Attachments -2
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GENERAL AGREEMENT FOR PURCHASE OF CELLULAR SYSTEMS
This is an Agreement between Lucent Technologies Inc. (Seller), a Delaware
corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
and Western Wireless Corporation (Customer), a Washington corporation having an
office at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ # ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (this
Agreement).
1. ARTICLE I
GENERAL PROVISIONS APPLICABLE TO ENTIRE AGREEMENT
1.1. HEADINGS AND DEFINITIONS
All headings used in this Agreement are inserted for convenience only
and are not intended to affect the meaning or interpretation of this Agreement
or any clause. For the purpose of this Agreement, the following definitions will
apply:
"Advertising" means all advertising, sales promotion, press releases,
and other publicity matters relating to performance under this
Agreement;
"Affiliate" of a corporation means its Subsidiaries, any company of
which it is a Subsidiary, and other Subsidiaries of such company. For
purposes of this Agreement, the meaning of "Affiliate" shall not
include any company or subsidiary which is a manufacturer of
telecommunication products in direct competition with Seller;
"Buyer Company" means an entity described in Attachment N to this
Agreement;
"CDX" shall mean Compact Digital Exchange;
"Candidate Software Features" means those software features planned for
future releases, but not yet developed, nor assured of being developed
and released;
"Cell Site Equipment" means Control Equipment, Radio Equipment and
Filter Equipment contained within a cell site as defined in Attachments
A - M and such other equipment as is sold by Seller generally to its
Customers and which is contained in a cell site;
"Customer Price List" means Seller's published "Network Wireless
Systems Price Reference Guide" or other price notification releases
furnished by Seller generally to its Customers for the purpose of
communicating Seller's prices or pricing related information to
Customer; however, this does not include firm price quotations;
"Designated Processor" means the Product for which the licenses to use
Licensed Materials are initially granted;
"DCS" means Seller's Autoplex digital cellular switch;
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"Firmware" means a combination of (i) hardware and (ii) Software
represented by a pattern of bits contained in such hardware;
"Form" means physical shape;
"Fit" means physical size or mounting arrangement (e.g., electrical or
mechanical connections);
"Franchise Area" means an area for which the Federal Communications
Commission has granted a permit to construct or license to operate a
cellular mobile telecommunications system;
"Function" means product features;
"Force Majeure" means fires, strikes, riots, embargoes, explosions,
earthquakes, floods, wars, water, the elements, serious labor disputes,
government requirements, civil or military authorities, acts of God or
by the public enemy, inability to secure raw materials as a result of
industry-wide shortages or transportation facilities, acts or omissions
of carriers or suppliers, or other causes beyond a party's control
whether or not similar to the foregoing;
"Hazardous Material" means material designated as a "hazardous chemical
substance or mixture" by the Administrator, pursuant to Section 6 of
the Toxic Substance Control Act, a "hazardous material" as defined in
the Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.),
or a "hazardous substance" as defined in the Occupational Safety and
Health Act Hazard Communication Standard (29 CFR 1910.1200);
"In Revenue Service" means use of a Product or any part thereof for
commercial service, whether or not revenue is actually being generated;
"Information" means all documentation and technical and business
information in whatever form recorded, which a party may furnish under,
or has furnished in contemplation of, this Agreement;
"Initial Operations Date" means, as to a System, the agreed upon date
by which Seller shall complete its delivery and installation of such
System;
"Licensed Materials" means the Software and Related Documentation for
which licenses are granted by Seller under this Agreement; no Source
Code versions of Software are included in Licensed Materials;
"MSC" means a mobile switching center and usually consists of an ECP,
IMS OMP and at least one (1) DCS;
"OMP" means Seller's operations management platform;
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"Product" means systems, equipment, and parts thereof, other than
Turnkey Items, but the term does not mean Software whether or not such
Software is part of Firmware, but the term does include hardware which
is part of Firmware;
"Product Manufacturing Information" means manufacturing drawings and
specifications of raw materials and components, including part
manufacturing drawings and specifications covering special tooling and
the operation thereof, and a detailed list of all commercially
available parts and components purchased by Seller on the open market
disclosing the part number, name and location of the supplier, and
price lists;
"Quality Management Tools" means Seller-furnished Software not
necessary for operation of Products furnished under this Agreement but
useful in the management of a wireless telecommunications system.
Unless otherwise specifically agreed by the parties, Seller does not
furnish under this Agreement such Software or the computer processor
necessary for Use of the Software;
"Related Documentation" means materials useful in connection with
Software, such as, but not limited to, flow charts, logic diagrams,
program descriptions, and specifications. No Source Code versions of
Software are included in Related Documentation;
"Related Operator" means an entity (other than Customer) offering
wireless telecommunications services to the public and which, for
purposes of furnishing such services, has an agreement with Customer
pursuant to which Customer resells to or shares with such operator
capacity on a Network Wireless System, as for example, when the Related
Operator's Cell Site or DCS equipment is interconnected with Customer's
MSC Products; or when Customer's Cell Site equipment is interconnected
with a Related operator's MSC Products;
"Repair Parts" means new, remanufactured, reconditioned, refurbished,
or functionally equivalent parts for the maintenance, replacement, and
repair of Products sold pursuant to this Agreement;
"Seller's Manufactured Product" means a Product manufactured by Seller
or purchased by it pursuant to its procurement specifications including
all components of such Products, which components are purchased by
Seller and become an integral part of such Products;
"Services" means the performance of work for the Customer and includes
but is not limited to: (1) engineering Services such as preparation of
equipment specifications, preparation and updating of office records,
and preparation of a summary of material not specifically itemized in
the order; (2) installation Services such as installation, equipment
removal, and cable mining; and (3) other Services such as maintenance
and repair. Services do not include Turnkey Services;
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"Software" means a computer program consisting of a set of logical
instructions and tables of information which guide the functioning of a
processor; such program may be contained in any medium whatsoever,
including hardware containing a pattern of bits representing such
program, but the term "Software" does not mean or include such medium;
"Software Update" means a reissued version or partial update of an
existing Software generic release (e.g., Release 3.1 following Release
3.0), containing one or more of the following, in any combination, (i)
infrastructure changes, (ii) improvements in basic call processing
capabilities, as well as basic system operation and maintenance, and
(iii) changes to maintain compatibility between a new system release
and features existing in a prior system release (when initially
introduced, a new system release may not always be fully compatible
with features available immediately prior to such release), (iv) a
platform for optional Software features, and (v) consolidations of
periodic fixes and overwrites;
"Source Code" means any version of Software incorporating high-level or
assembly language that generally is not directly executable by a
processor. Except as may be expressly provided, this Agreement does not
require Seller to furnish any Source Code;
"Specifications" means the specifications and performance standards of
the System as set forth in the current Autoplex System 1000 Technical
Specifications;
"Standard Charges" means Seller's applicable rates and charges for
labor and/or materials as determined from Seller's Customer Price List
or other pricing information provided to Customer, less any discounts
applicable thereto;
"Start Date" means, as to a System installation project, the date upon
which Seller has received Customer's written notice that Customer has
performed all Customer responsibilities and furnished all necessary
items required prior to Seller's commencement of installation of the
MSC for the System;
"Subsidiary" of a company means a corporation or partnership the
majority of whose shares or other securities entitled to vote for
election of directors or similar officers is now or hereafter owned or
controlled by such company either directly or indirectly; but any such
corporation, or partnership shall be deemed to be a Subsidiary of such
company only as long as such ownership or control exists;
"System" means an integrated cellular telecommunications system and all
expansions thereof, that includes Products and Licensed Materials and
which, in addition to the Specifications applicable to such Products
and Licensed Materials, may be subject to separate Specifications of
system performance or system functionality, including all Products,
Licensed Materials and Services purchased hereunder relating to such
System;
"Territory" means the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ plus the District
of Columbia;
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"Turnkey Item" means a good or product or a partial assembly of goods
or products furnished and, perhaps, installed by Seller as part of a
Turnkey Service but not furnished by Seller pursuant to this Agreement.
A Turnkey Item is not a Vendor Item or a Product as described in this
Agreement;
"Turnkey Services" means items and activities normally the
responsibility of the Customer under this Agreement, which may include,
but shall not be limited to, project management, field coordination,
construction and system testing. Turnkey Services do not include, and
are separate from, Seller's normal engineering and installation
Services;
"Use" with respect to Licensed Materials means loading the Licensed
Materials, or any portion thereof, into a processor for execution of
the instructions and tables contained in such Licensed Materials;
"Vendor Item" means a Product or partial assembly of Products furnished
by Seller but neither manufactured by Seller nor purchased by Seller
pursuant to its procurement specifications. A Vendor Item is not a
Turnkey Item; and
"Warranty Period" means the period of time listed in the respective
WARRANTY clauses which, unless otherwise stated, commences on the date
of shipment, or if installed by Seller on acceptance by Customer or
thirty (30) days from the date Seller submits its notice of completion
of its installation whichever is sooner, and for Services, commences on
the date the Service is completed.
1.2. TERM OF AGREEMENT
This Agreement shall be effective January 1, 1996 upon execution by the
last of the parties to execute this document, and except as otherwise provided
herein, shall continue in effect for receipt of orders through December 31,
2000. This Agreement shall supersede the written Agreement, Amendments to and
any other Agreements for Purchase and Sale of Autoplex Cellular Equipment,
Software and Services between the Customer and Seller executed by Customer on
March 17, 1993 as Markets Cellular Limited Partnership, MCII General Partnership
and AT&T Corp., respectively (collectively, the "old agreement"), except as to
provisions of the old agreement which by their nature are intended to survive
termination, including but not limited to, provisions relating to warranty of
items purchased and confidential information received under such old agreement.
All orders placed under the prior written Agreement since January 1, 1996, will
be treated as being placed under this Agreement once executed and, accordingly,
all such orders shall be counted towards the commitments, and entitled to the
discounts and credits, set forth in this Agreement. The modification or
termination of this Agreement shall not affect the rights or obligations of
either party under any order accepted by Seller before the effective date of the
modification or termination.
1.3. SCOPE
The terms and conditions of this Agreement shall apply to all
transactions in which Seller furnishes cellular Products, Licensed Materials, or
Services to Customer for Customer's own use
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and use for the benefit of Buyer Companies and Related Operators as provided
herein. As a matter of clarification, and notwithstanding the immediately
succeeding paragraph, the terms and conditions of this Agreement do not cover
Seller's Products, Licensed Materials or Services for personal communications
network systems or cellular digital packet data systems. Purchases of such items
shall be subject to separate written agreement or amendment to this Agreement,
as mutually agreed by the parties. Turnkey Services to be performed by Seller,
if any, and/or Turnkey Items to be obtained by Seller for Customer, if any,
shall be subject to separate agreement of the parties. To the extent that any
terms and conditions in any other Article of the Agreement conflict with the
provisions of this Article I, such terms and conditions supersede such
conflicting provisions of this Article I.
Seller agrees that Seller will maintain and from time to time furnish
to Customer a copy of Seller's Customer Price Guide, which shall contain all of
Seller's currently available commercial offerings of cellular telecommunications
systems and cellular-like telecommunications systems and related services,
including Products, Licensed Materials and Services offerings of personal
communications network systems.
The Buyer Company which is the end user of the Product, Licensed
Materials or Services furnished hereunder shall be considered "Customer" for all
purposes under this Agreement except placing the order and payment. Western
Wireless Corporation ("WWC") shall be considered "Customer" for purposes of
placing the order and payment. In addition, WWC shall be considered "Customer"
for purposes of passage of title and risk of loss with regard to Products and
Licensed Materials which are delivered to WWC. Seller agrees to look first to
WWC for all payments which become due hereunder for purchase prices, interest on
late payments and cancellation charges, but the Buyer Company, if any, having
received the Products, Licensed Materials and/or Services to which particular
payments relate, shall be jointly and severally liable therefor. The entity
which is the end user of the Products, Licensed Materials or Services furnished
hereunder shall have and may enforce against Seller all of the rights, benefits
and obligations contained herein (including, without limitation, warranty
claims), and all rights and claims (except claims for payment) or defenses
Seller has or may acquire against such entity shall be asserted solely against
such entity which has received such Products, Licensed Materials or Services;
provided, however, that in the event of a disputed claim for payment hereunder,
WWC will (i) do whatever is reasonably necessary to help resolve such a claim
and (ii) make the disputed payments to Seller (including any interest on late
payments with respect thereto) if and when such claim is ultimately resolved in
favor of Seller. WWC shall have the right to enforce or assert on behalf of
itself or the Buyer Company for whose benefit the order was placed any right,
claim or defense available to it or to such Buyer Company, in its sole
discretion.
Products and Licensed Materials furnished under this Agreement are
furnished for use in connection with a Customer's wireless telecommunications
business in the Franchise Areas in which WWC and the Buyer Companies are
authorized to provide wireless telecommunications services to the public. In
addition, Products and Licensed Materials may be purchased under this Agreement
for use in providing a Related Operator's wireless telecommunications services
to the public, whether or not such services will be provided in one of such
Franchise Areas of WWC or a Buyer Company, provided that such purchased item(s)
will be interconnected with a Seller-
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furnished System in one of such Franchise Areas licensed to WWC or a Buyer
Company. Unless otherwise agreed by Seller in writing, WWC shall be deemed the
"Customer" under this Agreement with respect to all such purchases for the
benefit of a Related Operator, and as such shall have all rights and obligations
of Customer, including the obligation to pay for all such purchased items.
Except as expressly provided herein for resale to Buyer Companies,
items furnished under this Agreement are not furnished for resale. However,
Customer may resell Products after internal use and make incidental sales of
unused Products. Licensed Materials, whether or not integral to the operation or
embodied in Products, may be transferred if and only to the extent expressly
provided in the Software-specific provisions of this Agreement. Nothing in this
paragraph shall be deemed to bar arrangements between Customers and Related
Operators in which capacity on the systems of either or both are shared, so long
as such arrangements do not involve prohibited resale, sublicenses or other
transfers of Products and/or licenses of Licensed Materials.
1.4. PURCHASE OF SYSTEMS, PRODUCTS, SERVICES AND LICENSED MATERIALS
Seller agrees to engineer, furnish and install and Customer agrees to
order the Systems for Fargo, North Dakota, and Billings, Montana (Billings/Fargo
Swapout), in accordance with the terms and conditions contained in this
Agreement. The Systems will consist, as required, of a central mobile telephone
switching office ("MSC") and/or cell sites, as set forth in Attachment J to this
Agreement. The Systems may be modified by Customer prior to acceptance with the
consent of Seller, which consent will not be unreasonably withheld. In addition,
Customer shall, during the term of this Agreement purchase of Products, Services
and Licensed Materials and other equipment, software and services marketed by
Seller (measured at net invoiced prices - i.e., net of all applicable discounts
and credits), whether purchased under this Agreement or other agreement of
Seller, of which shall be purchased on or before . For purposes of
determining Customer's fulfillment of these volume commitments, purchases shall
include Customer's purchases for the Billings/Fargo Swapout and shall include
all other purchases under orders received by Seller prior to the end of as
applicable, in each case calling for delivery in accordance with Seller's
standard lead times. In calculating the volume of Customer's purchases, the
following items shall be excluded:
- Taxes, transportation, hauling, hoisting, and warehousing
- Terminals and other end user products
- Antennas and towers, tower growth, tower modifications, etc.
- Building modifications and construction
- Any other purchases which are typically not associated with Seller's
equipment
1.5. ADDITIONS TO SYSTEMS
The parties contemplate that Customer will wish to obtain additional
Products, Licensed Materials and Services to expand the coverage of or add
features to one or more Systems. Orders
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for such additional items received by Seller during the term of this Agreement
shall be received and accepted subject to the terms and conditions hereof.
1.6 PLANNING INFORMATION
Upon Seller's request, and to the extent feasible, Customer will
provide to Seller non-binding forecasts of Customer's annual Product, Licensed
Materials, and Services needs. Such forecasts will be provided on a schedule to
be agreed upon. In addition, where preliminary order information is required,
Customer shall provide such information to Seller within an agreed upon time
prior to the date the order is to be placed. There shall be no penalty or
liability for failure by the Customer to order Products, Licensed Materials, and
Services which are included in the Customer's forecasts.
1.7. ORDERS
All orders submitted by Customer shall be deemed to incorporate and be
subject to the terms and conditions of this Agreement unless otherwise agreed in
writing.
All orders, including electronic orders, shall contain the information
necessary for Seller to fulfill the order.
All schedules and requested dates are subject to Seller's concurrence
which concurrence will not be unreasonably withheld or delayed.
No provision or data on any order or contained in any documents
attached to or referenced in any order, any subordinate document (such as
shipping releases), shall be binding, except data necessary for Seller to fill
the order. All such other data and provisions are hereby rejected. Electronic
orders shall be binding on Customer notwithstanding the absence of a signature.
1.8 ORDER ACCEPTANCE:
All orders are subject to acceptance by Seller, which acceptance shall
not be unreasonably withheld or delayed. Seller shall acknowledge the date of
order receipt either in writing or electronic data interface format. The
acknowledged date of order receipt is the price effective date for all Products,
Licensed Materials, and Services not quoted on a firm-fixed-price basis pursuant
to this Agreement.
Orders submitted for Products, Licensed Materials, or Services in
accordance with the terms and conditions of this Agreement shall be deemed
accepted by Seller in accordance with the following:
(a) If listed in a Customer Price List with price and scheduled interval,
upon receipt unless Seller notifies Customer to the contrary within
days of order receipt;
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(b) If listed in a Customer Price List with price and nominal interval (as
indicated in the Customer Price List), upon receipt unless Seller
notifies Customer to the contrary days of order receipt;
(c) If the order is for Products, Licensed Materials or Services not listed
in a Customer Price List or requires engineering, upon receipt unless
Seller notifies Customer to the contrary within days of order
receipt.
If Customer submits an order requesting a delivery or completion
interval less than the interval listed in the applicable Customer Price List,
Seller will accept such order only for its standard interval. Seller will,
however, use reasonable efforts to meet Customer's requested interval and
provide confirmation or denial of the requested shortened interval within days.
Additional charges may be applicable.
While it is Seller's objective to provide Customer with an
acknowledgment of each order received, it is Customer's responsibility to advise
Seller of any missing or late notifications to insure that the order has not
been lost. No order is to be considered "accepted" by Seller unless its receipt
has been acknowledged.
1.9 CHANGES IN CUSTOMER'S ORDERS
Changes made by Customer to an accepted order shall be treated as a
separate order unless the parties expressly agree otherwise. If any such change
affects Seller's ability to meet its obligations under the original order, any
price, shipment date, or completion date quoted by Seller with respect to such
original order is subject to change. However, Seller expressly agrees to use all
reasonable efforts to minimize any delayed shipment or completion date
occasioned by such changes.
1.10 PRICING
Prices, fees, and charges (hereinafter "prices") shall be as set forth
in Seller's Customer Price Lists, firm price quotations, specific agreements, or
other prices submitted by Seller to Customer. As for the Systems described in
Attachment J, the parties' specific agreement as to price is set forth below and
in Attachments A through L to this Agreement.
In those cases where the price is to be determined from a Customer
Price List, the applicable Customer Price List shall be the issue which is in
effect on the date of Seller's receipt of the order provided that the requested
shipment or service-commencement date is in accordance with Seller's published
shipping or planning interval or thirty (30) days from the date of order
receipt, whichever is longer. Prices for Products, Licensed Materials or
Services to be shipped or performed beyond such period will be established by
determining an effective order-entry date (the date required for order entry by
Seller in accordance with Customer's requested date) and applying the price from
the applicable Customer Price List as of that date.
In those cases where the price is not to be determined from a Customer
Price List, a firm price quotation, or specific agreement, the applicable price
will be Seller's price in effect on the
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date of Seller's receipt of the order and such price will be communicated to
Customer as soon as practicable thereafter.
Seller may amend its prices, other than those subject to firm price
quotations or other agreements between the parties, but such changes shall only
be applicable to orders received after such change.
Notwithstanding the foregoing, if Seller is delayed from completion of
an order due to any change requested by Customer or as a result of Customer's
delay in furnishing information or in performing its obligations, any price
agreed to by Seller is subject to reasonable change.
Unless expressly stated in writing, Seller's prices are exclusive of
charges for transportation and other related services, such as hauling and
hoisting and any sales or other tax or duty which Seller may be required to
collect or pay upon the ordered transaction.
1.10.1 SPECIAL DISCOUNTS AND INCENTIVES
In consideration of Customer's execution of this Agreement, Seller
shall provide the additional benefits set forth in this Subsection 1.10.1,
provided that with respect to purchases for Buyer Companies (other than Buyer
Companies qualifying as Affiliates of Western Wireless Corporation, as to which
all provisions of this Section 1.10.1 shall apply) and for the benefit of
Related Operators only the provisions of Subsections 1.10.1 shall apply.
However, Seller's obligations under this subsection are contingent upon
Customer's continuing to meet the commitments set forth in Section 1.4 of this
Agreement. In the event that Customer fails to meet any of such commitments,
Seller may withdraw any or all of such additional benefits remaining unused
immediately upon notice to Customer. However, as of the withdrawal date and for
the duration of this Agreement, Customer shall retain the right to receive those
standard discounts set forth in subsection (a) immediately following below.
(a) Customer's Standard Discount. With respect to purchases of Products and
Software under this Agreement, commencing with Products and Software
ordered after January 1, 1996, but before January 1, 2001, and
scheduled for shipment on or before the end of March 2001 or such later
period if Seller's standard lead time is longer than three (3) months,
Customer shall be entitled to the following discounts off of the list
price in Seller's Customer Price Lists:
Item Percent Discount
MSC Equipment
Inside Cell Site Equipment*
* For purposes hereof, "Inside Cell Site Equipment" means the control
equipment, radio equipment and filter equipment offered by Seller
under this Agreement for use in a Cell Site.
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Cell Site Software Initial Operating Fees*
* As a matter of clarification, all other Software (not expressly
identified and priced elsewhere in this Agreement) shall be provided
in accordance with Seller's standard Customer Price List including
any applicable volume discount that may be set forth therein).
For clarification, these discounts do not apply to fees or other
charges for purchases of used or refurbished equipment, which shall
normally be the subject of special quotation.
(b) System Swapout Pricing. The total price for the entire Billing/Fargo
Swapout including 18 cells, 2 MSCs (two 5ESS-2000 Switch DCSs, two
ECPs, two IMSs, and one OMP), Software, and spares (after accounting
for all applicable discounts and credits) is. All Products and
Licensed Material outlined in Attachment J will be invoiced upon
shipment from factory and, except as expressly provided herein or
otherwise agreed in writing, is subject to the standard payment terms
set forth in Section 1.11 Invoices and Terms of Payment. Cell site
installation and engineering (except where noted in Attachment J), cell
and MSC power, transportation and related charges, and all applicable
sales and use taxes are not included. The above system pricing is
comprised of the category pricing described in the following
subsections of this Subsection (b). This pricing is subject to change
(but retaining the same discount structure) if the Systems as installed
are comprised of different amounts of equipment than as contemplated
herein.
(i) Cell Site Pricing. Seller agrees to invoice and Customer
agrees to pay not more than the sum of for Series II and
Series IIe cell site Products that Seller will furnish for
completion of the Systems, which for the purposes hereof, the
parties agree shall include fifteen (15) Series II Omni Cell
Sites for a total of 324 analog channels and three (3) Series
IIe Omni Cell Sites for a total of 35 analog channels as
identified in Attachment J The parties further agree that such
maximum price is exclusive of cell site spares, engineering
(except where noted in Attachment J), installation, power
products, transportation and related charges, and all
applicable sales and use taxes.
(ii) MSC Pricing. Seller agrees to invoice and Customer agrees to
pay not more than the sum of for the Billings/Fargo MSC
Products that Seller will furnish for completion of the
Systems by the Initial Operation Date, which for the purposes
hereof, the parties agree shall include two Executive Cellular
Processors ("ECP"), two Inter-process Message Switches
("IMS"), and two 5ESS-2000 Switch DCS, including MSC
installation as identified in Attachment J. The parties
further agree that such maximum price is exclusive of power
products, transportation and related charges, and all
applicable sales and use taxes. Such maximum price does
include installation and commissioning of such Products.
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(iii) Software Pricing. Seller, Customer, shall provide with the
Billings/Fargo MSC Products for the Systems the Seller's
standard system Software, as well as the optional Software
features listed in Attachments E and J to this Agreement.
These Software features are exclusive of those optional
Software features in subsection (n) below
(iv) Spares Pricing. Seller agrees to invoice and Customer agrees
to pay not more than the sum of for MSC spares and Series
II and Series IIe cell spares that Seller will furnish for
completion of the Systems by the Initial Operation Date, which
for the purposes hereof, the parties agree shall include
Recommended 5ESS-2000 DCS, ECP, IMS, and DLI spares for the
Billings MSC, Critical 5ESS-2000 DCS, ECP, IMS, and DLI spares
for the Fargo MSC, and Series II Cell Site Spares as
identified in Attachments J and I respectively. The parties
further agree that such price is exclusive of engineering,
installation, transportation and related charges, and all
applicable sales and use taxes.
(v) Billings Used MSC Equipment. Customer agrees to
Customer's existing Billings MSC equipment including ECP and
IMS to Seller, in an operational but otherwise "as - is"
condition, when replaced with the new Billings MSC equipment
described in section 1.10.1(b)(ii) above. Customer shall
provide to Seller all relevant spare equipment and other ECP
and IMS related equipment (but not including power and
transmission equipment).
Except as provided below, or as otherwise agreed by Seller,
Customer shall deliver to Seller possession of the Billings
ECP and IMS equipment promptly after it has been replaced by
the new Billings MSC equipment. After cut over of the new
Billings MSC equipment, Customer shall issue its order for
Seller to de-install and pack the ECP and IMS equipment.
Seller shall invoice Customer for such services as quoted in
Attachment L. Seller shall bear the expense of transporting
the ECP and IMS equipment from Customer's location to Seller's
location of choice. Title and risk of loss of or damage to the
ECP and IMS equipment shall remain with Customer until
commencement of de-installation by Seller, after which it
shall pass to Seller.
(c)
(d) Project Implementation Manager (PIM). Seller agrees that, it will
assign a PIM until completion of installation of the Swapout Systems,
who shall be Seller's interface with the Customer for all aspects of
the project. In addition, Customer shall have access to a PIM, for
up to after installation; Seller shall use all good faith efforts
to have the same person who acted as PIM prior to completion of
installation act as PIM during said post-installation period. The PIM's
responsibilities shall include the scheduling of deliveries,
installations and turnovers of equipment, general Seller/Customer
coordination and other responsibilities as mutually agreed.
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(e) Switch Consultant. Seller agrees that, it will provide a competent
MSC technician for each market (Fargo, North Dakota, and Billings,
Montana) to assist Customer in the maintenance, training, optimization
and administration of the MSC Products and Licensed Materials. Such
technician shall be available to Customer on-site, on a full-time
basis, at the location of the executive cellular processor for the
Systems in Fargo, North Dakota and Billings, Montana, starting on the
Installation Complete Date, for so long as the assistance of such
person is reasonably necessary, but in no case beyond days
following such date. Nothing herein shall be deemed to require a
technician to work beyond a normal work week or to work hours that will
cause Seller to have to pay such person overtime pay or equivalent
compensation, unless such work is agreed to by Seller in advance. The
cost of travel and reasonable living expenses to other locations (other
than locations local to Billings and Fargo) shall be for the account of
and billed to Customer.
(f) Cell Site Model Configuration Pricing. Seller shall provide the model
pricing set forth below in this Subsection (f). The model
configurations are for furnish only orders and do not include
engineering, if applicable, or installation.
(i) Series II Product Family. Seller shall offer Customer Series
II, IIe, and IIm model configurations and pricing as detailed
in Attachments A through A5.
(ii) Series IIc Growth Frame. Seller shall offer Customer Series
IIe Growth Frames in the configuration and pricing as detailed
in Attachment B.
(iii) Series IIe Sectorization. Seller shall offer Customer a Series
IIe Sectorization model in the configuration and pricing as
detailed in Attachment C.
Any Series II, Series IIe, Series IIm or Series IImm Cell Sites
ordered, other than the above referenced models (except as provided
immediately below) will be subject to the discounts set forth in
Subsection (a) above, as applicable.
(g) Refurbished Mod LACS with New LAMs and Pre-amps. Seller currently has a
stock of refurbished Mod LACs. These LACs include new LAMs
and carry a two year standard warranty. The warranty period for such a
LAC shall commence upon the earlier of (i) the installation complete
date (whether or not installed by Seller), or (ii) . Seller is
willing to offer these refurbished LACs to Customer at a price of
LAC with pre-amps. Availability of refurbished Mod LACs is on
a first-come-first-served basis. This price is available for
refurbished LACs only.
(h) Mod M-LAC (Modulator LAC) Pricing. Seller shall provide Customer with
the option of purchasing a minimum of Mod M-LACs per order under
orders calling for delivery within Seller's standard lead time and made
in the first quarter and third quarter of each of the calendar
years . This purchase pricing option shall the
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calendar years . The price for Mod M-LACs shall be .
Bulk purchases of more than shall be priced .
(i) Series II RCU Pricing. Seller shall provide Customer with the option of
bulk purchasing a minimum of analog RCUs per order under orders
calling for delivery within Seller's standard lead time and made in the
first quarter and third quarter of each calendar year during the
initial term of this Agreement. The price for units is .
This price of this Agreement. purchases of more than
shall be priced .
(j) Meg Memory Upgrade. Seller shall charge Customer a for the
purchase of 8-Meg Memory boards. This upgrade will be required in
all Series II product family cell sites prior to cut over of the Fargo
and Billings MSCs. See Attachment F for CTSO Fax Flash installation
instructions.
(k) TDMA Cell Site Pricing. The following pricing shall be applicable
during the initial year term of this Agreement.
(i) TDMA Enhanced Digital Radio Unit (EDRU). The EDRU shall be
priced at Seller's Customer Price List in effect upon
order acknowledgment,
The planned General Availability (GA) date for the EDRU, which
will support both the VSELP and ASELP vocoders, is .
However, this GA date is dependent upon availability of IS-136
ASELP compliant mobiles for testing purposes in .
(ii) Series IIe TDMA Initial Operating Software Fees. The Series
IIe TDMA Initial Software Fee
(l) CDMA Cell Site Pricing. Attachment D contains Seller's estimated CDMA
pricing for a Series II CDMA Growth Frame with eight (8) CDMA voice
channels. The estimated price for the CDMA Growth Frame has been
computed using Customer's standard cell site hardware discount
for initial cell site software operating fees. Note, this price does
not include the additional hardware requirements for the MSC (5ESS,
ECP, & IMS) or CDMA software features.
(m) MSC Upgrade Pricing. Customer has requested 5ESS remote switch
configurations to replace all current Universal (U-Mod) and Traditional
Mod (T-Mod) DCSs. Seller has developed 5ESS-CDX pricing based on
Customer's requirements for a 60 DS1 remote switch configuration. The
estimated price for a 60 DS1 5ESS-CDX switch is per switch -- see
Attachment G for CDX pricing. The actual price shall be determined by
the final configuration of each switch using the methodology as per
Attachment G. This price includes software, critical spares and
engineering. In addition, to the 5ESS-CDX equipment Customer will be
required to purchase additional timing equipment for the ECP. The
additional ECP equipment is estimated at per remote 5ESS-CDX --
see
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Attachment H for pricing. Installation, engineering, and
transportation, and the Landline Cellular Option (LCO) and Landline
features are additional.
Should Customer place orders with Seller, in accordance with Seller's
standard lead time, to upgrade its existing Definity T-Mod and U-Mod
remote switch modules (listed below) in Butte, Missoula, Bismarck,
Grand Forks, Casper, Pueblo, and Great Falls by December 31,1997 ,
for the U-Mod or T-Mod equipment listed in the table below:
DCS # NAME MS T-MOD U-MOD
--- ---- -- ----- -----
1 Billings 1 2 2
2 Butte 1 2
3 Missoula 1 2
4 Bismarck 1 1 1
5 Grand Forks 1 2
6 Casper 1 2
7 Pueblo 1 2
8 Great Falls 0 1
- -- -
TOTAL 7 10 7
Customer may use the Billings DCS (1 TMS, 2 T-Mods, 2
U=Mods) for growth purposes in other markets until conversion of the
Customer's remote switching offices to 5ESS CDX technology, not later
than .
In return for the U-Mod or T-Mod equipment listed above, Customer
will be required to de-install and return the Definity DCSs (including
TMS, Common Controller, U-Mod and T-Mod and ancillary DCS equipment,
except power) to Seller. Customer will be required to pay for
de-installation and packing of DCS equipment. Seller will pay shipping
cost to a warehouse to be designated by Seller. The for the
Butte, Missoula, Bismarck, Grand Forks, Casper, Pueblo, and Great Falls
DCS upgrade is . This is based on Customer purchasing a
minimum of seven 5ESS-CDXs with a minimum of 420 DS1 connections,
for a minimum of (which is inclusive of Customer's standard MSC
discount), for Butte, Missoula, Bismarck, Grand Forks, Casper, Pueblo,
and Great Falls.
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(n) Optional Software Features Pricing. Seller will invoice Customer a
price for certain Optional Software Features, as provided herein. For
Customer can activate any new optional ECP/OMP or Series II
product family cell features in (including interim releases). This
includes any features expressly described in Attachment E plus any
additional optional features that become available in (including
interim releases). The fee will be invoiced progressively as follows:
------------------------------------------------------------
SOFTWARE PAYMENT SCHEDULE
-------------------------
|
|
|
------------------------------------------------------------
For any Candidate Software Feature offered in this Agreement pursuant
to Attachment E, which for whatever reason, is not developed and/or
released pursuant to Seller's Software Releases (including
interim releases); Seller will employ reasonable efforts to provide
said Candidate Software Features to . Seller's obligation to
continue its efforts with respect to any such non-provided Candidate
Software Feature shall arise only if Customer notifies Seller of
Customer's continuing interest in obtaining and using such feature. Any
Candidate Software Feature developed subsequent to release yet
within said term of this Agreement shall be provided to Customer at
.
The Software package pricing does not include the following:
1. 5ESS Landline features.
2. Cell or ECP Initial Operating fees (applicable only for new
cells or ECP)
3. CDPD Initial Operating fee and optional features for MDIS,
MDBS or NMS.
4. Annual Release Maintenance Fees or comparable Software Update
fees.
As regards any analog or TDMA optional software features that Customer
acquires pursuant to this Agreement, Seller agrees that during the
initial term of this Agreement, Seller shall , , provide CDMA
equivalent features for those portions of the System(s) on which
Customer implements the CDMA technology during such initial term.
(o) Series I Cell Sites. Seller agrees to of Customer's existing
Series I Cell Sites when they are replaced with Series II Cell Sites
(other than microcells) purchased under this Agreement. As each Series
II Cell Site (other than a microcell) is purchased under this Agreement
in replacement of an existing Series I Cell Site, Customer shall be
entitled the replaced Series I Cell Site. Customer shall provide to
Seller with each Series I Cell Site all relevant spare circuit packs
and other Series I related equipment (but not including power and
transmission equipment).
Except as provided below, or as otherwise agreed by Seller
promptly after it has been replaced by a Series II Cell Site. Prior to
delivery of such Series II Cell Site, Customer shall issue its order
for Seller to de-install and pack the Series I Cell Site. Seller shall
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invoice Customer at Seller's standard rates for such Services. Seller
shall bear the expense of transporting the Series I Cell Site from
Customer's location to Seller's location of choice. Title and risk of
loss of or damage to the Series I Cell Site shall remain with Customer
until commencement of de-installation by Seller. If requested by
Seller, Customer shall issue its evidence of such transfer of title.
For each Series I Cell Site under the provisions of this subclause,
Seller shall issue a
(p) Annual Release Maintenance Fees. Seller will charge Customer Annual
Release Maintenance Fees (for MSCs and Cell Sites) in the amount
of per ECP. This fee will be automatically invoiced to Customer
in January of each year and is based on the number of ECPs in service
as of December 31 of the immediately preceding calendar year. Customer
will be invoiced for Annual Release Maintenance Fees upon
execution of this Agreement. Seller will accept Customer's as
payment for Annual Release Maintenance Fees.
(q) 5ESS Landline Pricing. Seller's budgetary pricing for landline feature
capability for the 5ESS-2000, based on information provided by
Customer, for _ customers is -- see Attachment K.
1.11 INVOICES AND TERMS OF PAYMENT
Except as provided in this Agreement, Products and Licensed Materials
(including transportation charges and taxes, if applicable) will be billed by
Seller when shipped, or as soon thereafter as practicable. Engineering will be
billed upon main shipment of Products. Installation will be billed as performed
or as soon thereafter as practical. Customer shall pay such invoiced amounts,
less any disputed items, for receipt by Seller within thirty (30) days of the
invoice date. Delinquent payments are subject to a late payment charge at the
rate per month, or portion thereof, of the amount due (but not to exceed
the maximum lawful rate). Any disputed items which Seller determines are not
valid are due for payment based upon the original invoice date and will be
subject to a retroactive late payment charge based upon the original invoice
date. Customer shall notify Seller of any disputed invoice amounts within
from the date of the invoice. Seller may apply any credit which remains
outstanding in favor of Customer to the oldest undisputed invoice which remains
in Customer's portfolio.
1.11.1 ENGINEER, FURNISH AND INSTALL (EF&I) ORDERS:
Seller shall ▇▇▇▇ EF&I and/or F&I orders under this Agreement on an
individual order basis, at . For purposes hereof, EF&I and F&I orders
include only those orders issued in accordance with Seller's standard lead times
which include combined EF&I or combined F&I when such orders are originally
issued, and do not include originally issued E&F or Furnish only orders as to
which Customer subsequently or separately orders installation Services. Such
excluded orders shall be billed pursuant to Section 1.11 immediately preceding.
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1.11.2 EARLY PAYMENT DISCOUNTS:
Provided that Customer makes payment by EFT as set forth in Subsection
1.11.3 below, Customer may pay all invoiced amounts, less an additional
percent discount, if payment is received by the Seller within ten (10) days of
the invoice date. Such additional discount shall be applied against the invoiced
amount (i.e., after all applicable discounts have been applied).
1.11.3 ELECTRONIC FUNDS TRANSFER (EFT) PAYMENTS:
Customer payments for invoiced amounts may be made by EFT means. EFT
payments shall be made to:
Lucent Technologies Inc.
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Lucent Domestic CARMS Acct# ABA Routing Number
Seller shall be entitled to change such address for EFT transfers by notice
furnished pursuant to Section 1.23 of this Agreement.
Customer shall, concurrently with the EFT payment, either mechanically transmit
a remittance file to Seller's banking institution identified above or fax to the
Seller the related EFT payment remittance advice such that Seller may apply EFT
payments to the proper invoices paid. Remittance advices shall be faxed to:
Lucent Technologies Inc.
Financial Operations Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn: Cash Applications Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with fax copy to:
Lucent Technologies Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Network Systems Wireless Asset Management Group
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1.11.4 PAYMENTS BY CHECK (NON-EFT):
Non-EFT payments and related remittance advices shall be mailed to the
address identified on Seller's invoice.
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1.12. DELIVERY AND INSTALLATION SCHEDULE
Pursuant to the Project Implementation Schedule per Attachment M,
Customer shall notify Seller that the MSC site and/or cell sites for the Systems
described in Attachments A - M are ready for installation and that Customer's
responsibilities referred to in Article IV relating to such sites have been
performed or furnished. Seller shall have access to such sites on and from the
date of Seller's receipt of such notification (the "Start Date").
Seller agrees that it will install all of the parts of the Systems and
submit notices of completion to Customer on or before the Initial Operations
Date, which, unless extended as provided in this Agreement or by mutual consent
of the parties, shall be pursuant to the Schedule per Attachment M.
1.13. TRANSPORTATION
Seller's prices for Products and Licensed Materials do not include
freight charges or related transportation Services or charges therefor, unless
expressly stated in writing by Seller to the contrary. Seller, in accordance
with its normal practices, will arrange for transportation for such items, will
prepay transportation, if appropriate, and invoice transportation charges.
If Customer elects to route Products and/or Licensed Materials or to
arrange for transportation, Seller will provide related services subject to a
separate fee.
Premium transportation will only be used with Customer's concurrence.
1.14. PACKING, MARKING, AND SHIPPING:
Seller shall, at no additional charge, pack and ▇▇▇▇ shipping
containers in accordance with its standard practices for domestic shipments.
Where in order to meet Customer's requests, Seller packs and/or is required to
▇▇▇▇ shipping cartons in accordance with Customer's specifications, Seller shall
invoice Customer reasonable additional charges related to such packing and/or
marking.
Seller shall:
(a) Enclose a packing memorandum with each shipment and, if the shipment
contains more than one package, identify the package containing the
memorandum; and
(b) ▇▇▇▇ Products as practicable for identification in accordance with
Seller's marking specifications (e.g., model/serial number and month
and year of manufacture).
Partial shipments under an order may be made by Seller and separately
invoiced.
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1.15. TITLE AND RISK OF LOSS:
Title (except as provided in the clause USE OF INFORMATION and in
Article III) and risk of loss to a Product, Licensed Material, or other item
furnished to Customer under this Agreement shall pass to Customer upon delivery
to the final destination established by Customer's order for the item or other
agreement of the parties. Delivery of an item to its final destination by Seller
shall be deemed complete at such time as all transportation, interim
warehousing, hauling and hoisting required to be performed by Seller or its
agents under the order for the item have been completed. Notwithstanding the
above, if sooner, title and risk of loss to the item shall pass to Customer at
the point at which Seller or Seller's supplier or agent turns over possession of
the item to Customer, Customer's employee, Customer's designated carrier,
warehouser or hoister, or other Customer's agent. For the purposes of this
clause, receipt of an item by a carrier arranged for by Seller in performance of
a Turnkey Service provided under separate agreement of the parties shall be
deemed receipt by Customer's designated carrier.
Customer shall notify Seller promptly of any claim with respect to loss
which occurs while Seller has the risk of loss and shall cooperate in every
reasonable way to facilitate the settlement of any claim.
Nothing herein shall, during the period either party has the risk of
loss to an item, relieve other party of responsibility for loss to the item
resulting from the acts or omissions of said other party, other parties
employees or agents.
1.16. COMPLIANCE WITH LAWS:
Performance under this Agreement shall be subject to all applicable
laws, orders, and regulations of federal, state, and local governmental
entities.
1.17. TAXES:
Customer shall be liable for and shall reimburse Seller for all taxes
and related charges, however designated, (excluding franchise taxes, taxes on
Seller's gross receipts, net income or similar taxes) imposed upon or arising
from the provision of Services, or the transfer, sale, license, or use of
Products, Licensed Materials, or other items provided by Seller. Taxes
reimbursable under this paragraph shall be separately listed on the invoice.
Seller shall not collect the otherwise applicable tax if the front of
the order indicates that the purchase is exempt from Seller's collection of such
tax and a valid tax exemption certificate is furnished by Customer to Seller.
1.18. TRAINING:
Seller will make available Seller's standard training for Customer's
personnel in the planning for, operation and maintenance of Products and
Software furnished hereunder in accordance with Seller's published prices at
Seller's training locations or as mutually agreed.
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1.19. TERMINATION FOR CONVENIENCE:
Customer may, upon written notice to Seller, terminate any order or
portion thereof, except with respect (i) to any order for Systems, or (ii) to
Products or Licensed Materials that have already been shipped and Services that
have already been performed.
For those Products and Licensed Materials not shipped but considered
stock items, Customer agrees that it will pay Seller an order termination fee
equal to of the price or licensee fee for such items.
For those Products and Licensed Materials not shipped and considered
customized or non-stock items, Customer agrees to pay a termination fee based
upon Seller's incurred expenses (after adjustment for recoveries and/or salvage
value, if any), including associated general and administrative expenses plus a
reasonable profit.
For Services in process, Customer agrees to pay for all Services
rendered to date, plus Seller's incurred expenses, including a reasonable
profit, for those Services ordered by Customer and subsequently terminated.
Customer may issue "holds" on orders or suspend performance under this
Agreement, in whole or in part, with Seller's prior written consent and upon
terms that will compensate Seller for any loss, damages, or expenses incurred.
1.20. CANCELLATION FOR BREACH:
In the event Seller or Customer is in material breach or default of
this Agreement or any order placed hereunder and such breach or default
continues for a period of after the receipt of written notice (and such
additional time as may be agreed upon by the parties), then Seller or Customer
shall have the right to cancel that part of any order affected by the breach or
default without any charge, obligation or liability, except for those items
already fully discharged. Notwithstanding anything in the foregoing to the
contrary, in the event that Customer shall cancel an order in part for failure
of Seller to deliver items or perform Services in accordance with such order,
Customer shall be, entitled to return additional items furnished under such
order to the extent they are unusable without such items as are subject to such
cancellation. Both parties shall cooperate in every reasonable way to facilitate
the remedy of a breach or default hereunder within such period.
1.21. PATENTS, TRADEMARKS AND COPYRIGHTS:
(a) Seller will defend all suits against Customer alleging that any Products,
Software or Service furnished hereunder infringes any United States patent,
trademark, copyright, trade secret or other intellectual property right and will
indemnify and hold Customer harmless against all damages and costs which by
final judgment, settlement or award of arbitration may be assessed against
Customer on account of such infringement; provided that Seller (i) shall have
prompt
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written notice of all claims of such infringement and suit and full opportunity
and authority to assume the sole defense of and to settle such suit, and (ii)
shall be furnished upon Seller's request all information and assistance
available to Customer for such defense. If said item is in any such suit held to
constitute infringement and the use of said item is enjoined, Seller will, at
its sole cost and expense, without adversely affecting the ability of the System
to perform in accordance with the Specifications, including, without limitation
those respecting service received by subscribers, billing, administration and
maintenance, at its option, either procure for Customer the right to continue
using said item; or replace it with a suitable non-infringing item; or modify it
so it becomes non-infringing; or, with consent of Customer, remove the item and
refund the purchase prices less a reasonable allowance for use, damage and
obsolescence, provided, however, that if the removal of the enjoined item
renders the System inoperable, or adversely affects the ability of the System to
perform in accordance with the Specifications, including, without limitation,
those respecting service received by subscribers, billing, administration and
maintenance, Seller shall also remove the System and refund to Customer the
amount paid therefor less a reasonable amount for use, damage and obsolescence.
In exercising any of its options under this Paragraph 1.21 Seller
shall minimize disruption of Customer's use of the System.
(b) If Seller elects not to assume the sole defense of any such claim, Seller
shall reimburse Customer for its costs in defending such claim, including
reasonable attorney's fees.
(c) No undertaking of Seller under this clause shall extend to any such alleged
infringement or violation to the extent that it: (1) arises from adherence to
design modifications, specifications, drawings, or written instructions which
Seller is directed by Customer to follow, but only if such alleged infringement
or violation does not reside in corresponding commercial Product or Licensed
Material of Seller's design or selection; or (2) arises from adherence to
instructions to apply Customer's trademark, trade name, or other company
identification; or (3) resides in a Product or Licensed Material which is not of
Seller's origin and which is furnished by Customer to Seller for use under this
Agreement; or (4) relates to uses of Products or Licensed Materials provided by
Seller in combinations with other Products or Licensed Materials, furnished
either by Seller or others, which combination was not installed, recommended or
otherwise approved by Seller. In the foregoing cases numbered (1) through (4),
Customer will defend and save Seller harmless, subject to the same terms and
conditions and exceptions stated above with respect to the Seller's rights and
obligations under this clause.
(d) The liability of Seller and Customer with respect to any and all claims,
actions, proceedings, or suits by third parties alleging infringement of
patents, trademarks, or copyrights or violation of trade secrets or proprietary
rights because of, or in connection with, any items furnished pursuant to this
Agreement shall be limited to the specific undertakings contained in this clause
and shall not be governed by the Paragraph entitled CUSTOMER'S REMEDIES.
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1.22. USE OF INFORMATION:
All Information which bears a legend or notice restricting its use,
copying or dissemination, shall remain the property of the furnishing party. The
furnishing party grants the receiving party the right to use such Information
only as follows. Such Information (1) shall not be reproduced or copied, in
whole or part, except for use as authorized or contemplated in this Agreement;
and (2) shall, together with any full or partial copies thereof, be returned or
destroyed when no longer needed. Moreover, when Seller is the receiving party,
Seller shall use such Information only for the purpose of performing under this
Agreement, and when Customer is the receiving party, Customer shall use such
Information only (1) to order, (2) to evaluate Products, Licensed Materials or
Services, or (3) to install, operate, and maintain the particular Products or
Licensed Materials for which it was originally furnished. Unless the furnishing
party consents in writing, such Information, except for that part, if any, which
is known to the receiving party free of any confidential obligation, or which
becomes generally known to the public through acts not attributable to the
receiving party, shall be held in confidence by the receiving party. The
receiving party may disclose such Information to other persons, upon the
furnishing party's prior written authorization, but solely to perform acts which
this clause expressly authorizes the receiving party to perform itself and
further provided such other person agrees in writing (a copy of which writing
will be provided to the furnishing party at its request) to the same conditions
respecting use of Information contained in this clause and to any other
reasonable conditions requested by the furnishing party.
The term "Information" as used in this clause does not include Software
(whether or not embodied in Firmware) or Related Documentation. The use of
Software and Related Documentation is governed by Article III of this Agreement.
1.23. NOTICES:
All notices under this Agreement shall be in writing (except where
otherwise stated) and shall be addressed to the addresses set forth below or to
such other address as either party may designate by notice pursuant hereto. Such
notices shall be deemed to have been given when received.
Seller: Lucent Technologies Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Contract Manager, Network Systems
Copy to: Lucent Technologies Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Many, Wireless General Sales Manager
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Customer: Western Wireless Corporation
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ # ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President - Engineering
Copies to: Western Wireless Corporation
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ # ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Constant & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
1.24. RIGHT OF ACCESS:
Each party shall provide the other access to its facilities reasonably
required in connection with the performance of the respective obligations under
this Agreement. No charge shall be made for such access. Reasonable prior
notification will be given when access is required. Neither party shall require
releases of any personal rights in connection with visits to its premises.
1.25. INDEPENDENT CONTRACTOR:
All work performed by one party under this Agreement shall be performed
as an independent contractor and not as an agent of the other and no persons
furnished by the performing party shall be considered the employees or agents of
the other. The performing party shall be responsible for its employees'
compliance with all laws, rules, and regulations while performing work under
this Agreement.
1.26. CUSTOMER'S REMEDIES:
(a) Customer's exclusive remedies and the entire liability of Seller and
its affiliates and their employees and agents for any claim, loss,
damage, or expense of Customer or any other entity arising out of this
Agreement, or the use or performance of any Product, Licensed Material,
or Service, whether in an action for or arising out of breach of
contract, tort, including negligence indemnity, or strict liability
shall be as follows:
(1) For infringement--the remedy set forth in the "PATENTS, TRADEMARKS,
AND COPYRIGHTS" clause;
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(2) For the performance of Products, Turnkey Items, Software,
Services, and Turnkey Services or claims that they do not conform
to a warranty--the remedy set forth in the applicable "WARRANTY"
clause;
(3) For tangible property damage and personal injury caused by
Seller's negligence--the amount of direct damage;
(4) For everything other than as set forth above--the amount of direct
damages not to exceed.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, OTHER THAN
SUBSECTION (A) ABOVE AND ANY OTHER EXPRESS REMEDY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY NOR ITS AFFILIATES, ITS EMPLOYEES OR AGENTS
SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR
LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE
USE OR PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, TURNKEY ITEMS,
SERVICES, TURNKEY SERVICES, OR OTHER ITEMS WHETHER IN AN ACTION FOR OR
ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR
STRICT LIABILITY. THIS CLAUSE 1.26(b) SHALL SURVIVE FAILURE OF AN
EXCLUSIVE OR LIMITED REMEDY.
(c) Customer shall give Seller prompt notice of any claim. Any action or
proceeding against Seller must be brought within the earlier of
twenty-four (24) months after the Customer has knowledge of the
existence of a cause of action or the end of the applicable period for
limitation of actions.
1.27. FORCE MAJEURE:
Except with respect to Customer's obligation to make timely payments
under this Agreement, neither party shall be held responsible for any delay or
failure in performance to the extent that such delay or failure is caused by a
Force Majeure.
1.28. ASSIGNMENT:
Except as provided in this clause, neither party shall assign this
Agreement or any right or interest under this Agreement, nor delegate any work
or obligation to be performed under this Agreement, (an "assignment") without
the other party's prior written consent, which consent will not be unreasonably
withheld or delayed. Any attempted assignment in contravention of this shall be
void and ineffective. Nothing shall preclude a party from employing a
subcontractor in carrying out its obligations under this Agreement. A party's
use of such subcontractor shall not release the party from its obligations under
this Agreement.
Upon the acceptance by Seller of any assignment by Customer pursuant to
this clause 1.28 and assumption of the duties under this Agreement by the
assignee and the payment in full of all
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amounts due and owing under this Agreement, Customer shall be released and
discharged, to the extent of the assignment, from all further duties under this
Agreement.
Seller has the right to assign this Agreement and to assign its rights
and delegate its duties under this Agreement, in whole or in part, at any time
and without Customer's consent, to any present or future Subsidiary of Seller,
or to any combination of the foregoing. Seller shall give Customer prompt
written notice of the assignment.
Any assignment by Seller pursuant to this Clause shall not relieve
Seller from any obligations or duties under this Agreement unless Customer, upon
being assured as to the financial viability of Seller's assignee, consents to
Seller being released and discharged, such consent not to be unreasonably
withheld by Customer.
For purposes of this clause, the term "Agreement" includes this
Agreement, any subordinate contract entered into in connection with or as
contemplated by this Agreement and any order placed under such Agreement or
subordinate contract.
1.29. PUBLICITY:
Each party shall submit to the other proposed copy of all Advertising
wherein the name, trademark, code, specification or service ▇▇▇▇ of the other
party or its affiliates is mentioned; and neither party shall publish or use
such Advertising without the other's prior written approval. Such approval shall
be granted as promptly as possible (usually within ten (10) days), and may be
withheld only for good cause. The parties acknowledge that the obtaining of
prior approval for each such use may be an administrative burden. At the request
of either party, Customer and Seller will establish mutually acceptable written
guidelines that will constitute pre-authorization for the uses specified
therein. Such guidelines shall be subject to change from time to time at the
reasonable request of either party.
1.30. APPLICABLE LAW:
The construction and interpretation of, and the rights and obligations
of the parties pursuant to this Agreement, shall be governed by the laws of the
State of New York without giving effect to principles of conflicts of law. .
1.31. SURVIVAL OF OBLIGATIONS:
The parties' rights and obligations which, by their nature, would
continue beyond the termination, cancellation, or expiration of this Agreement,
shall survive such termination, cancellation, or expiration.
1.32. SEVERABILITY:
If any provision in this Agreement shall be held to be invalid or
unenforceable then such provision shall be construed so as to render it
enforceable, to the extent feasible. If no such
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construction is feasible, such provision shall be severed from this Agreement
and, the remaining portions shall remain in effect. In the event such invalid or
unenforceable provision is considered an essential element of this Agreement,
the parties shall promptly negotiate a replacement provision.
1.33. NON-WAIVER:
No waiver of the terms and conditions of this Agreement, or the failure
of either party strictly to enforce any such term or condition on one or more
occasions shall be construed as a waiver of the same or of any other term or
condition of this Agreement on any other occasion.
1.34. CUSTOMER RESPONSIBILITY
Each Party, at no charge to the other Party, shall provide such party
with such electrical and environmental conditions, technical information, data,
technical support, or assistance as may reasonably be required by such Party to
fulfill its obligations under this Agreement, any subordinate agreement, or
order. If either Party fails to provide the required conditions, information,
data, support, or assistance, the other Party shall be discharged from any such
obligation.
1.35. PUBLICATION OF AGREEMENT
The parties shall keep the provisions of this Agreement and any order
submitted hereunder confidential except (i) as reasonably necessary for
performance hereunder, (ii) to their respective lenders, accountants and legal
counsel, and except to the extent disclosure may be required by applicable laws
or regulations, in which latter case, the party required to make such disclosure
shall promptly inform the other prior to such disclosure in sufficient time to
enable such other party to make known any objections it may have to such
disclosure. Such other party shall have the right to seek a protective order to
assure that such information will be withheld from the public record. The party
required to make the disclosure shall, upon request of the other party and at
such other party's expense, provide reasonable assistance in obtaining such
protective order.
1.36. ARBITRATION:
Any dispute regarding any right, obligation, duty or liability
arising out of the provisions of this Agreement, shall be referred upon written
demand by either party within sixty (60) days, to the Intercompany Review Board.
The Intercompany Review Board shall be a standing committee composed
of two members each from Seller and Customer. Each party shall notify the other
of the name, title and address of its representatives appointed to the
Intercompany Review Board.
Upon resignation or retirement of any member from the Board, or
replacement of any member of the Board, the party which placed the member on the
Board shall immediately notify
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the other of the name, title, and address of that member's replacement. Any
reference herein to the Board, or members of the Board, shall include the above
designees of the members.
Upon referral of any dispute to the Board, the members of the Board
may meet in person or by telephone, or confer by any other means to resolve the
dispute. A formal resolution from the Board must be in writing and signed by all
four members.
If a controversy referred to the Board is not resolved within of
such referral, either party may request initiation of mediation of the
controversy under the Commercial Mediation Rules of the American Arbitration
Association. A party receiving such request shall not be required to consent to
mediation, but each party hereby represents that it will be its policy to act in
good faith and genuinely to consider mediation.
If the controversy has not been resolved within of the initiation
of mediation, or if the notified party is not willing to engage in mediation,
which may be inferred by the notifying party if the notified party's written
concurrence is not received within , such controversy shall be resolved by
arbitration pursuant to this Paragraph and the then current rules, and under
supervision of, the American Arbitration Association ("AAA"). The duty to
arbitrate shall extend to any officer, employee, agent, Affiliate or Subsidiary
making or defending any claim which would otherwise be arbitrable hereunder. The
arbitration shall be held in New York City before a single arbitrator who is
knowledgeable in commercial business transactions and wireless communications
and who is acceptable to both parties. If the parties are unable to agree upon
an arbitrator within , the arbitrator shall be selected by the President of
the AAA. The arbitrator's decision and award shall be final and binding and may
be entered in any court having jurisdiction thereof. The arbitrator shall not
have the power to award punitive or exemplary damages. Issues of arbitrability
shall be determined in accordance with the federal substantive and procedural
laws.
Each party shall bear its own attorney's fees associated with any
mediation or arbitration instituted hereunder and other costs shall be borne as
provided by the applicable rules of the American Arbitration Association;
provided, however, if court proceedings to stay litigation or compel arbitration
are necessary, the party who unsuccessfully opposes such proceedings shall pay
all associated costs, expenses and attorney's fees which are reasonably incurred
by the other party.
The procedures specified in this Paragraph shall be the sole and
exclusive procedures for the resolution of disputes between the parties arising
out of or relating to this Agreement; provided, however, nothing herein shall be
deemed to require arbitration of matters deemed not arbitrable under federal
law, or to prohibit a party from seeking a preliminary injunction or other
preliminary judicial relief if in such party's judgment such action is necessary
to avoid irreparable damage. Despite any such action, the parties will continue
to participate in good faith in the procedures specified herein. All applicable
statutes of limitation shall be tolled while the procedures specified in this
clause are pending, and nothing herein shall be deemed to bar any party from
taking such action as may be required to effectuate such tolling.
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Except as provided expressly in this Paragraph, nothing in this
Agreement shall in any way affect or limit the rights of the parties to pursue
remedies at law or in equity.
1.37. DUTIES OF GOOD FAITH
Seller acknowledges that Customer, in entering into this Agreement,
has relied on the good will and trust that Seller has assured Customer that
Seller deserves. Customer acknowledges that Seller, in entering into this
Agreement, has relied on the good will and trust that Customer has assured
Seller that Customer deserves. Customer and Seller accordingly agree to
discharge all of their obligations and exercise all judgments and action
hereunder in utmost good faith and in such a fashion as will minimize costs and
losses to Customer or Seller.
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2. ARTICLE II
PROVISIONS APPLICABLE TO THE PURCHASE OF PRODUCTS
2.1. GENERAL:
The provisions of this Article II shall be applicable to the purchase
of Products from Seller. If Software is also to be licensed for use on a
purchased Product, or if a Product is also to be engineered or installed by
Seller, the provisions of Articles III and IV shall also be applicable.
2.2. PRODUCT AVAILABILITY:
Seller shall notify Customer, usually at least one (1) year, before
Seller discontinues accepting orders for a Seller's Manufactured Product sold
under this Agreement. Upon receipt of such notice with respect to a Product,
Customer shall have the right to place orders for its reasonably anticipated
future needs for such Product. Where Seller offers a functionally equivalent
Product for sale, the notification period may vary.
2.3. DOCUMENTATION:
Seller shall furnish to Customer, one copy of documentation for the
Products provided hereunder (i.e., one set of ECP documentation for each ECP
Site, one set of DCS documentation for each DCS Site and one set of cell site
documentation for each Cell Site). Such documentation shall be sufficient to
acquaint Customer's personnel with the System and Products and any further
Systems provided hereunder and to specify, order, operate and maintain such
Products. Such documentation will be that customarily provided by Seller to its
Customers at no additional charge. Such documentation shall be provided prior
to, with, or shortly after the shipment of the Products from Seller to Customer.
Additional copies of the documentation are available at prices set forth in the
Customer Price List.
2.4. PRODUCT COMPLIANCES:
Seller represents that a Product furnished hereunder shall comply, to
the extent required, with applicable federal and state laws, rules and
regulations pertaining to the Products, including without limitation, the
requirements of Part 22 of the Federal Communication Commission's Rules and
Regulations pertaining to cellular radio in effect upon delivery of such
Product. In addition, Seller represents that a Product furnished hereunder shall
comply, to the extent required, with the requirements of Subpart J of Part 15 of
the Federal Communication Commission's Rule and Regulations in effect upon
delivery of such Product, including those sections concerning the labeling of
such Product and the suppression of radio frequency and electromagnetic
radiation to specified levels. Seller makes no undertaking with respect to
harmful interference caused by (i) installation, repair, modification or change
of Products or Software by other than Seller, Seller's agents or employees or
subcontractors; (ii) Products being subjected to misuse, neglect, accident or
abuse by other than Seller, Seller's agents or employees or subcontractors;
(iii) Products or
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Software being used in a manner not in accordance with operating instructions or
in a suitable installation environment.
Seller assumes no responsibility under this clause for items designated
or supplied by Customer, including but not limited to antennas, power equipment
and batteries. Type acceptance or certification of such items shall be the sole
responsibility of Customer.
2.5. PRODUCT CHANGES:
Prior to the shipment of a Product, Seller may at any time make changes
in a Product furnished pursuant to this Agreement, or modify the drawings and
published specifications relating thereto, or substitute Products of later
design to fill an order, provided the changes, modifications, or substitutions
under normal and proper use do not impact upon the Form, Fit, or Function of an
ordered Product as identified in the Specifications and do not adversely impact
the ability of the Product or System as a whole to operate in accordance with
those Specifications.
Seller shall notify Customer of all changes to Products which, in
Seller's determination, are required to remedy a non-conformance to Seller's
applicable Specifications, to correct design defects that are of type that
result in inoperative electrical or mechanical conditions or an extremely
unsatisfactory operating condition, or which are recommended to enhance safety.
If Seller has furnished and installed a Product which is subject to
such a change, Seller will implement such change, at its expense, if it is
announced within from the date of shipment of that Product, by, at its
option, either (1) modifying the Product at Customer's site; (2) modifying the
Product which Customer has returned to Seller in accordance with Seller's
instructions; or (3) replacing the Product requiring the change with a
replacement Product for which such change has already been implemented. However,
if Seller has not engineered the original Product application and, accordingly,
office records are not readily available to Seller, Seller will provide the
generic change information and associated parts for Customer's use in applying
such change. If Seller has not installed such Product, Seller, will, at its
expense, furnish the parts and documentation necessary to implement such change
if it is announced within from the date of shipment of that Product.
Customer may notify Seller of any problems which it considers fall within the
categories described above. If Customer does not make or permit Seller to make
the change as stated above within one (1) year from the date of change
notification, subsequent repairs or replacements under this Paragraph and under
the Paragraph entitled PRODUCT WARRANTY may, at Seller's option, be billed to
Customer.
2.6. CONTINUING PRODUCT SUPPORT - PARTS AND SERVICES:
In addition to repairs provided for under Product Warranty, Seller
offers repair Services and Repair Parts in accordance with Seller's repair
Services and Repair Parts practices and terms and conditions then in effect, for
Seller's Manufactured Products furnished pursuant to this Agreement. Such repair
Services and Repair Parts shall be available while Seller is manufacturing or
stocking such Products or Repair Parts, but in no event less than after
such Product's discontinued availability effective date. Seller may use either
new, remanufactured, reconditioned,
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refurbished, or functionally equivalent Products or parts in the furnishing of
repairs or replacements under this Agreement.
Seller will give Customer reasonable notice of its intention
to discontinue manufacture of such Repair Parts so that Customer may order
additional parts for inclusion in its inventory, provided that nothing in this
sentence shall limit Seller's obligation under this Paragraph or Paragraph 2.2.
In addition, when Seller ceases to supply such parts and a functional equivalent
has not been designated, it will attempt to locate another source of supply for
Customer.
2.7. SPECIFICATIONS:
Upon request, Seller shall provide to Customer, , one (1) copy of
Seller's available commercial Specifications applicable to Products orderable
hereunder. Additional copies are available at the applicable price therefor.
Such Specifications, together with all Product and Software and all applicable
training documentation, are all that is necessary to operate or maintain the
System, Products and Software.
2.8. CUSTOMER TECHNICAL SUPPORT:
Seller provides Customer Technical Support for the AUTOPLEX Cellular
System through the Customer Technical Support Organization (CTSO). The CTSO is
available and is solely dedicated to the Seller's Wireless Infrastructure
Product line. The CTSO provides diagnostic center support, performance
measurement and system engineering services. Customer Technical Support is
currently provided at no cost to the Customer. Seller agrees that during the
term of this Agreement, that it shall not commence to charge Customer for such
services unless it generally commences to charge other customers of Seller in
comparable circumstances. Special, unusual or customized services may be
billable, depending upon the nature of the request.
2.9. PRODUCT WARRANTY:
(a) Seller warrants to Customer during the Warranty Period that:
(i) As of the date title to Products passes to Customer, Seller
will have the right to sell, transfer, and assign such
Products and the title conveyed by Seller shall be good and
valid;
(ii) Upon shipment or, if installed by Seller, on acceptance by
Customer or from the date Seller submits its notice of
completion of its installation, whichever is sooner, Seller's
Manufactured Products will be free from defects in material
and workmanship, and will conform to and perform in accordance
with the Specifications, or any other agreed-upon
specification referenced in the order for such Product; and
(iii) With respect to Vendor Items, Seller, to the extent permitted,
does hereby assign to Customer the warranties given to Seller
by its vendor of such Vendor Items.
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Such assignment will be effective on the date of shipment of
such Vendor Items. With respect to Vendor Items recommended by
Seller in the Specifications for which the vendor's warranty
cannot be assigned to Customer, or if assigned, less than
remain of the vendor's warranty at the time of assignment,
Seller warrants for from the date of shipment or, if
installed by Seller, on acceptance by Customer or from
the date Seller submits its notice of completion of its
installation whichever is sooner, that such Vendor's Items
will be free from defects in material and workmanship. Upon
written request of Customer, Seller shall identify those items
in its Customer Price Lists that are Vendor Items.
(b) The Warranty Periods listed below are applicable to Seller's
Manufactured Products furnished pursuant to this Agreement, unless
otherwise stated:
Class of Product New Product Repaired or
Replacement
Product or Part
---------------- ----------- ---------------
Cellular Radio Tele-communications Systems
(Including MSCs & Cell Sites) Months Months
Power Products Months Months
Transmission Systems
-All Transmission Products in the "2000
Product Family" Months Months
-D4 Circuit Packs Months Months
-SLC Circuit Packs Months Months
-SLC Series 5 Plug-ins Months Months
-T1 Repeaters Months Months
-DDM-1000 Circuit Packs Months Months
-Other Transmission Products Months Months
Other Products Months Months
Refer to the SOFTWARE WARRANTY CLAUSE for associated Software
warranties.
The Warranty Period for a repaired Product or part thereof repaired
under or for a replacement Product of Part thereof furnished in lieu of
repair under this Warranty is the period listed or the unexpired term
of the new Product Warranty Period, whichever is longer.
Notwithstanding anything in this Agreement to the contrary, Customer's use of
any part of Systems In Revenue Service or to provide training or hands-on
experience to Customer's personnel shall, if prior to Seller's notice of
installation completion, commence the applicable warranty period; provided,
however, this provision shall not apply to training provided by Seller nor to
the extent that Customer's personnel merely familiarize themselves with the
Systems without actual operation of the Products.
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(c) If under normal and proper use, a defect or nonconformity appears in an item
of Product during the applicable Warranty Period and Customer promptly notifies
Seller and confirms such notice in writing of such defect or nonconformity and
follows Seller's instructions regarding return of the defective or
non-conforming item, Seller, at its option, will either repair or replace the
same without charge at its manufacturing or repair facility or provide a refund
or credit based on the original purchase price; provided, however, that Seller's
option to provide a refund or credit shall not apply to those defects which
materially affect (i) the Product's and System's ability to deliver a service to
the end users or (ii) the billing, administration or maintenance capabilities of
such System. If a defect or non-conformity is in a Seller's Manufactured Product
developed by Seller or purchased by Seller pursuant to Seller's procurement
specifications and installed by Seller and Seller ascertains in its reasonable
judgment that the Product is repairable but not readily returnable for repair,
the repairs or replacements shall be made at Customer's site. No Product will be
accepted for repair or replacement without the written authorization of and in
accordance with instructions of Seller. Transportation expenses associated with
returns to Seller shall be borne by Customer. Seller shall pay the costs of
transportation of the repaired or replacing item to the destination designated
by Customer (within the contiguous forty-eight United States). If Seller
determines that a returned item is not defective, Customer shall pay Seller all
costs of handling, inspecting, testing and transportation. In repairing or
replacing any Product or part of a Product under this warranty, Seller may use
reconditioned or refurbished parts. Replaced Products or parts shall become
Seller's property.
(d) If Customer and Seller have a disagreement as to whether or not a problem is
a defect or nonconformity covered by this warranty, Seller agrees to correct the
problem and ▇▇▇▇ Customer for the corrective action under the Paragraph entitled
INVOICES AND TERMS OF PAYMENT. Seller will segregate such bills. Such disputed
warranty claims will be subject to resolution by the Intercompany Review Board
in accordance with the Paragraph entitled RESOLUTION OF DISPUTES, and if
resolved in Customer's favor, Seller agrees to credit Customer for the costs of
corrective action covered by warranty.
(e) Seller makes no warranty with respect to defective conditions or
non-conformities caused by Products being (i) subjected to misuse, neglect,
accident or abuse by anyone other than Seller or its subcontractors, employees
or agents; (ii) improperly wired, repaired or altered by anyone other than
Seller or its subcontractors, employees or agents; (iii) improperly installed,
stored or maintained by anyone other than Seller or its subcontractors,
employees or agents; or (iv) used in a manner not in accordance with
Specifications or written operating instructions.
(f) If as a result of a defect or non-conformity covered by this warranty,
Customer is not able to offer services to its subscribers, billing,
administration or maintenance in accordance with the Specifications, Seller
shall at its sole cost and expense repair or correct the problem or replace the
defective Product and ship any required replacement Product (or components
thereof) to Customer as promptly as possible. If such repair, replacement, or
installation of replacement Product requires the services of Seller's service
personnel at Customer's sites, Seller shall, at its sole cost and expense,
dispatch such service personnel as are required to correct such problem
immediately upon being notified thereof by Customer.
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THE FOREGOING PRODUCT WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO REPAIR, REPLACE, CREDIT OR
REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
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3. ARTICLE III
PROVISIONS APPLICABLE TO THE LICENSING OF SOFTWARE
3.1. GENERAL:
The provisions of this Article apply to the granting of licenses
pursuant to this Agreement by Seller to Customer for Licensed Materials.
3.2. LICENSE:
Upon delivery of Licensed Materials, but subject to payment of all
applicable license fees including, but not limited to, any continuing up-date
fees, Seller grants to Customer a personal, nontransferable (except as otherwise
permitted pursuant to this Agreement), and nonexclusive license pursuant to this
Agreement to use Licensed Materials in the Territory with the Designated
Processor (or temporarily on any comparable replacement, if the Designated
Processor becomes inoperative, until the Designated Processor is restored to
operational status) or with Seller's equipment owned by a Related Operator.
Customer shall use Licensed Materials only for its own internal business
operation or for those of a Related Operator.
Except as provided herein, the license grants Customer no right to and
Customer will not sublicense such Licensed Materials, or modify, decompile, or
disassemble Software furnished as object code to generate corresponding Source
Code.
3.3. TITLE, RESTRICTIONS AND CONFIDENTIALITY:
All Licensed Materials (whether or not part of Firmware) furnished by
Seller, and all copies thereof made by Customer, including translations,
compilations, and partial copies are the property of Seller.
Except for any part of such Licensed Materials which is or becomes
generally known to the public through acts not attributable to Customer,
Customer shall hold such Licensed Materials in confidence, and shall not,
without Seller's prior written consent, disclose, provide, or otherwise make
available, in whole or in part, any Licensed Materials to anyone, except to its
employees having a need- to-know. Customer shall not copy Software embodied in
Firmware. Customer shall not make any copies of any other Licensed Materials
except as necessary in connection with the rights granted hereunder. Customer
shall reproduce and include any Seller copyright and proprietary notice on all
such necessary copies of the Licensed Materials. Customer shall also ▇▇▇▇ all
media containing such copies with a warning that the Licensed Materials are
subject to restrictions contained in an agreement between Seller and Customer
and that such Licensed Materials are the property of Seller. Customer shall
maintain records of the number and location of all copies of the Licensed
Materials.
Customer shall take appropriate action, by instruction, agreement, or
otherwise, with the persons permitted access to the Licensed Materials so as to
enable Customer to satisfy its obligations under this Agreement.
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When the Licensed Materials are no longer needed by Customer, or if
Customer's license is canceled or terminated, Customer shall return all copies
of such Licensed Materials to Seller or follow written disposition instructions
provided by Seller.
3.4. CHANGES IN LICENSED MATERIALS:
Seller may substitute modified Licensed Materials to fill an order,
provided the modifications, under normal and proper Use, do not materially
adversely affect the Use, Function, or performance of the ordered Licensed
Materials. Unless otherwise agreed, such substitution shall not result in any
additional charges to Customer with respect to licenses for which Seller has
quoted fees to Customer.
3.5. SOFTWARE MODIFICATION REQUESTS:
Seller will evaluate any request by Customer that the Software provided
under this Agreement be modified or enhanced. At the conclusion of such
evaluation, Seller will advise Customer as to the feasibility of developing the
requested modification or enhancement. Should the request be feasible and if
Seller has the resources available to commit to the development, Seller will
provide Customer with a price estimate, availability date, and other pertinent
information. Other terms and conditions for any such modification or enhancement
shall be agreed upon prior to the commencement of work on the modification or
enhancement, it being understood that Seller will offer its then standard terms
and conditions, if any, being offered to its other customers.
3.6. MODIFICATION BY CUSTOMER:
Unless otherwise agreed, Customer is not granted any right to modify
Software furnished by Seller under this Agreement.
3.7. RELATED DOCUMENTATION:
Seller shall furnish to Customer, at no additional charge, one copy of
the Related Documentation for Software furnished by Seller pursuant to this
Agreement. Such Related Documentation will be that customarily provided by
Seller to its Customers at no additional charge. Such Related Documentation
shall be provided prior to, with, or shortly after provision of Software by
Seller to Customer. Additional copies of the Related Documentation are available
at prices set forth in the Customer Price List.
3.8. SOFTWARE WARRANTY:
(a) Seller warrants to Customer that:
(i) Software developed by Seller or developed in accordance with
Seller's Specifications will, during the Warranty Period
described below, be free from those
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defects which materially affect performance in accordance with
Seller's Specifications and Seller further warrants that it
has the right to grant the licenses to use Software it grants
under this Agreement; and
(ii) With respect to Software not covered in paragraph (a),
sub-paragraph (i), Seller to the extent permitted, does hereby
assign to Customer the warranties given to Seller by its
supplier of such Software.
(b) The Warranty Periods listed below are applicable to Software developed by
Seller or developed in accordance with Seller's Specifications, the Related
Documentation developed by Seller and associated with such Software, and the
medium on which such Software is recorded, unless otherwise stated.
Software Warranty Period
-------- ---------------
-Network Wireless Systems including
Software Updates Months
-Transmission Systems (for D4 Systems) Months
-All Other Months
The Warranty Period for media and Related Documentation shall
commence on the same date as commences the Warranty Period for their associated
Software. So long as Seller continues to offer annual Software Updates pursuant
to Seller's Annual Release Maintenance Fee program the Warranty Period for
Software shall extend from the later of the date of payment by Customer of
Seller's Annual Release Maintenance Fee or the implementation of a Software
update furnished pursuant to such program, so long as Customer continues
promptly to implement each such Software Update so furnished. If Customer fails
to promptly implement any Software Update furnished by Seller, the Warranty
Period for the Software shall continue to run from the later of the date of
payment of the last consecutive Annual Release Maintenance Fee or the last
consecutive Software Update implemented by Customer and shall terminate at the
end of such period.
(c) The provisions of Section 2.9(c)-(f) are incorporated herein and shall apply
to any warranty claim by Customer during the Warranty Period with respect to the
Software.
THE FOREGOING SOFTWARE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO CORRECT, REPLACE, CREDIT, OR
REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
3.9. TAXES APPLICABLE TO SOFTWARE:
Notwithstanding clause TAXES in Article I of this Agreement, Seller
shall not ▇▇▇▇, collect, or remit any state or local sales or use tax with
respect to the license of Software under this
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Agreement, or with respect to the performance of Services related to such
Software, which Customer represents to Seller is not properly due under
Customer's interpretation of the law of the taxing jurisdiction, if (1) Customer
submits to Seller a written explanation of the authorities upon which Customer
bases its position that the license or performance of Services is not subject to
sales or use tax, and (2) Seller agrees that there is authority for Customer's
position, provided, however, that Customer shall hold Seller harmless for all
costs and expenses (including, but not limited to, taxes and related charges
payable under clause TAXES, and attorney's fees) arising from the assertion by a
taxing authority that the license of, or the performance of Services with
respect to, the Software was subject to state or local sales or use tax.
3.10. LIMITED TRANSFERABILITY:
(a) Where Customer elects to transfer Cell Sites and MSC Products and related
Power and Transmission Products furnished under this Agreement to a third party,
and where such Products will remain in place and operational for the purpose of
continuing to provide wireless telecommunications service in the area for which
such Products were installed, or where Customer elects to transfer Products to
an Affiliate for reuse within the Territory, Customer may transfer its right to
Use the Licensed Materials, including Software, furnished under this Agreement
for Use with such Products without the payment of any additional Software
right-to-use fee(s) by the transferee, except where feature or size sensitive
units are a factor, but only under the following conditions:
(i) The right to use such Licensed Materials may be transferred only
together with the Products with which Customer has a right to use such Licensed
Materials, and such right to use the Licensed Materials shall continue to be
limited to use with such Products;
(ii) Before any such Licensed Materials shall be transferred,
Customer shall notify Seller of such transfer and the transferee shall have
agreed in writing (a copy of which will be provided to Seller) to keep the
Licensed Materials in confidence and to corresponding conditions respecting use
of Licensed Materials as those imposed on Customer in this Agreement; and
(iii) The transferee shall have the same right to Software warranty
and Software maintenance for such software as the transferor, provided the
transferee continues to pay the fees, including recurring Software Update fees,
if any, associated with such Licensed Materials or maintenance.
(b) Except as provided in Section 3.10 subsection (a) immediately preceding, and
except as may otherwise in this Agreement be provided expressly, Customer shall
have no right to transfer Licensed Materials furnished by Seller under this
Agreement without consent of Seller. If Customer elects to transfer a Product
purchased under this Agreement for which it does not under this Agreement have
the right to transfer the related Licensed Materials, Seller agrees that upon
written request of the transferee of such Product, or of Customer, Seller shall
not without reasonable cause fail to grant the transferee a license to use such
Licensed Materials with the Products upon Seller's then standard license terms
and conditions, including license fees.
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3.11. AVAILABILITY AND SUPPORT OF SOFTWARE FEATURES/UPDATES:
Seller agrees to make available to Customer, at Seller's Standard Charges
(except as noted in Section 1.10 Pricing and related software items pursuant to
Attachment E per this Agreement) therefore those additional Software features
applicable to the Systems and other Products purchased under this Agreement
which are developed by Seller, which Seller has a right to and has elected to
license to others and which Seller has licensed to another cellular mobile
carrier.
To the extent that Seller continues to provide an Annual Release
Maintenance Fee program for MSC and Cell Site Software furnished under this
Agreement, Seller shall offer to Customer at Seller's prices quoted in the then
current Autoplex Cellular Price Reference Guide, such program, which when
purchased, shall entitle Customer (i) to any and all Software updates (excluding
those updates priced separately as Optional Features) for Software furnished
hereunder and (ii) to the warranty coverage for System Software Updates
described in the Paragraph entitled SOFTWARE WARRANTY. At the effective date of
this Agreement Seller is operating under a pricing policy pursuant to which
Customer's payment of Seller's Annual Release Maintenance Fees for Software
updates entitles Customer to receive, without payment of additional fees, new
software generic releases for MSCs and Cell Sites as they are issued from time
to time. Nothing herein shall be deemed to require Seller to continue this
policy or to continue to offer an annual Software update service and, subject to
any applicable rules concerning general price increases, Seller shall be
entitled to establish and administer separate fees for such generic Software,
but, in no such case where any annual Software update service is terminated
shall Seller be relieved of any obligation to repair, replace or refund for any
warranty defect in Software or Software Updates furnished to Customer, as
provided in the Paragraph entitled SOFTWARE WARRANTY.
Seller agrees to maintain a standard, supported, generic version of
Software necessary for operation of Products furnished by Seller pursuant to
this Agreement for a period of not less than ten (10) years from the effective
date of this Agreement.
Seller agrees to maintain a standard, supported, generic version of any
Software developed and furnished by Seller pursuant to this Agreement, and if
such maintenance is not available from another entity, then Seller shall furnish
Customer, under a suitable confidentiality agreement, Seller's then existing
Software Source Code, Software development programs, and associated
documentation for such standard version to the extent necessary for Customer to
maintain and enhance for its own Use the standard version of that Software for
which it has the right to Use.
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4. ARTICLE IV
PROVISIONS APPLICABLE TO ENGINEERING,
INSTALLATION, AND OTHER SERVICES
4.1. GENERAL:
The provisions of this Article IV shall be applicable to the furnishing
by Seller of Services other than Services furnished pursuant to any other
Article of this Agreement.
4.2. ACCEPTANCE OF INSTALLATION:
At reasonable times during the course of Seller's installation,
Customer, at its request may, or upon Seller's request shall, inspect completed
portions of such installation. Upon Seller's further request, and upon
sufficient notice to Customer, Customer shall observe Seller's testing of the
Product being installed to determine that such testing and the test results are
in accordance with Seller's acceptance standards or acceptance procedures. The
job shall be considered complete and ready for acceptance by Customer when the
Product has been installed and tested by Seller in accordance with its standard
procedures, and Seller represents such Product to be in working order and
operating in accordance with the Specifications. Upon completion of the
installation, Seller will submit to Customer a notice of completion. Where
Seller's installation relates to a System or an expansion of a System, separate
notices of completion shall be issued for (i) the MSC, (ii) each cell site, and
(iii) such System as a whole.
Customer shall promptly make final inspection of substantial
conformance with Seller's specifications and do everything reasonably necessary
to expedite acceptance of the job. Seller will promptly correct any defects for
which it is responsible. The job will be considered as fully accepted unless
Seller receives notification to the contrary within after
submitting the notice of completion. Notwithstanding the foregoing, if Customer
places the Products and/or Licensed Materials into commercial service, such
action will constitute Customer's acceptance but Seller shall nevertheless
remain fully responsible to correct all defects and items of non-compliance with
the Specifications under any applicable warranty.
4.3. CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON CUSTOMER'S
SITE:
4.3.1. ITEMS PROVIDED BY CUSTOMER
Except as the parties may have otherwise agreed for Turnkey Services,
as set forth in this Agreement or in other agreements of the parties, Customer
will be responsible for furnishing the following items (as required by the
conditions of the particular installation or other on-site Service, hereinafter
collectively referred to as the "Service") at no charge to Seller and these
items will not be included in Seller's price for the Service. Seller's
representative shall have the right to inspect the site prior to Service Start
Date. Should Customer fail to furnish any of such items for
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which it is responsible after Seller provides Customer notice, Seller may
furnish such items and charge Customer for them in addition to the prices
otherwise charged by Seller for the Service.
Regulatory Commission Approvals--Prior to Service Start Date, obtain
such approvals, licenses, permits, tariffs and/or other authorities from the
Federal Communications Commission and state and local public utilities
commissions as may be necessary for construction and operation of a cellular
mobile radio telephone system.
Easements, Permits and Rights-of-Way--Prior to Service Start Date,
provide all reasonable rights-of-way, easements, licenses to come upon land to
perform the Service, permits and authority for installation of Products and
other items; permits for opening sidewalks, streets, alleys, and highways; and
construction and building permits.
Access to Building and Work Site--Allow employees of Seller and it
subcontractors free access to premises and facilities at all reasonable hours
during the scheduled Service or at such other times as are reasonably requested
by Seller for performance under this Agreement. Customer shall obtain for
Seller's and its subcontractors' employees any necessary identification and
clearance credentials to enable Seller and its subcontractors to have access to
the work site.
Environmental Conditions--When Customer provides or arranges for a
third party to provide MSC and/or cell site structures, Customer shall prior to
Service Start Date:
a. Insure that the MSC and/or cell site structures are in a
structurally safe and sound condition to properly house the
materials to be installed, in accordance with weight,
strength, and structural requirements specified by Seller.
b. Take such action as may be necessary to insure that the
premises will be dry and free from dust and Hazardous
Materials, including but not limited to asbestos, and in such
condition as not to be injurious to Seller's or its
subcontractors' employees or to the materials to be installed.
Prior to commencement of the Services and during the
performance of the Service, Customer shall, if requested by
Seller, provide Seller with sufficient data to assist Seller's
supplier in evaluating the environmental conditions at the
work site (including the presence of Hazardous Materials). The
price quoted by Seller's supplier for the Service does not
include the cost of removal or disposal of the Hazardous
Materials from the work site. Customer is responsible for
removing and disposing of the Hazardous Materials, including
but not limited to asbestos, prior to commencement of the
Service.
Sensitive Equipment--Prior to commencement of the Service, inform
Seller of the presence of any known sensitive equipment at the work site (e.g.,
equipment sensitive to static electricity or light).
Repairs to Buildings--Prior to Service Start Date, make such
alterations and repairs as are reasonably necessary per specifications for
proper installation of items to be installed.
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Building Readiness--Prior to Service Start Date, provide hoisting and
hauling services, furnish suitable openings in buildings to allow the items to
be installed to be placed in position, and provide necessary openings and ducts
for cable and conductors in floors and walls as designated on engineering
drawings furnished by Seller.
Surveys--Prior to Service Start Date furnish surveys (describing the
physical characteristics, legal limitations and utility locations for the work
site) and a legal description of the site.
Electrical Current, Heat, Light and Water--Provide electric current for
charging storage batteries and for any other necessary purposes with suitable
terminals where work is to be performed; provide temperature control and general
illumination (regular and emergency) in rooms in which work is to be performed
or Products or other items stored, equivalent to that ordinarily furnished for
similar purposes in a working office; provide exit lights; provide water and
other necessary utilities for the proper execution of the Service.
Cellular System Utility Requirements--Negotiate with the power and
telephone companies for installation of the power and telephone facilities
necessary to proper operation of the Products and/or other items being
installed. The type and quantity of such facilities shall be subject to Seller's
reasonable approval. Customer shall have the telephone company provide, place,
install, extend and terminate telephone facilities into the MSC and cell sites;
line up and test the telephone company facilities outside and inside the MSC and
cell sites; and provide to Seller copies of the test results prior to Seller's
commencing integration testing of the MSC with each cell site.
Material Furnished by Customer--New or used material furnished by
Customer shall be in such condition that it requires no repair and no adjustment
or test effort in excess of that normal for new equipment. Customer assumes all
responsibility for the proper functioning of such material. Customer shall also
provide the necessary information for Seller to properly install such material.
Furniture--provide and install all furniture.
Floor Space and Storage Facilities--Provide, during progress of the
Service, suitable and easily accessible floor space and storage facilities (a)
to permit storing major items of Products and other material closely adjacent to
where they will be used, (b) for administrative and luncheon purposes, (c) for
Seller's and its subcontractors' employees' personal effects, and (d) for tools
and property of Seller and its subcontractors. Where the Service is to be
performed outside of a building or in a building under construction, Customer
shall, in addition to the above requirements, as appropriate, permit or secure
permission for Seller and its subcontractors to maintain at the work site,
storage facilities (such as trailers) for Products, materials and other items
and for tools and equipment needed to complete the Service.
Watch Service--For MSCs, provide normal security (for cell sites,
commercial alarms) necessary to prevent admission of unauthorized persons to
building and other areas where installation Service is performed and to prevent
unauthorized removal of the Products and other items. If space for storage
facilities is provided to Seller, Seller will inform Customer as to which
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storage facilities at the work site Seller will keep locked; such storage
facilities will remain closed to Customer's surveillance.
Use of Available Testing Equipment--Customer shall make available to
Seller: (1) the maintenance test facilities which are imbedded in equipment to
which the Product or other item being installed will be connected or added, and
(2) meters, test sets, and other portable apparatus that is unique to the item,
if provided by Customer, being installed. Seller's use of such test equipment
shall not interfere with the Customer's normal equipment maintenance functions.
Customer Hazardous Materials Cleanup--At the conclusion of the Service,
Customer shall be responsible for the cleanup, removal, and proper disposal of
those Hazardous Materials present at Customer's premises.
Access to Existing Facilities--Customer shall permit Seller reasonable
use of such portions of the existing plant or equipment as are necessary for the
proper completion of such tests as require coordination with existing
facilities. Such use shall not interfere with the Customer's normal maintenance
of equipment.
Grounds--Customer shall provide access to suitable and isolated
building ground as required for Seller's standard grounding of equipment. Where
installation is outside or in a building under construction, Customer shall also
furnish lightning protection ground. Customer has expressed a belief that
Seller's standard grounding practices may exceed that required in specific
instances. In the event that Customer has not provided access to grounds in
accordance with Seller's standard grounding practices and Customer refuses to do
so, Seller will, if feasible, complete installation using the grounds which
Customer does provide in such non-standard situation. Seller shall have no
liability whatsoever for consequences resulting solely from Customer's failure
to follow Seller's standard grounding practices. Without in any way intending to
limit the foregoing, Customer acknowledges that all defects in Products and
Licensed Materials, including any reduced performance thereof, resulting solely
from Customer's failure to comply with Seller's standard grounding practices
shall not be covered by Seller's applicable warranty and all Services performed
by Seller to effect repair in such cases shall be for the account of Customer.
Nothing herein shall be deemed to require Customer to perform grounding that
Seller has otherwise agreed to perform pursuant to the express terms of this
Agreement.
Requirements for Customer Designed Circuits--Customer shall furnish
information covering the proper test and readjust requirements for apparatus and
requirements for circuit performance associated with circuits designed by
Customer or standard circuits modified by Customer's drawings.
Through Tests and Trunk Tests--Customer shall make required through
tests and trunk tests to other offices after Seller provides its notice of
completion or notice of advanced turnover.
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4.3.2. ITEMS TO BE FURNISHED BY SELLER
The following items will be furnished by Seller (if required by the
conditions of the particular Service) and the price thereof is included in
Seller's price for Service:
Protection of Equipment and Building--Seller shall provide protection
for Customer's equipment and buildings during the performance of the Service and
in accordance with Seller's standard practices.
Method of Procedure--Seller shall prepare a detailed Method of
Procedure ("MOP") before starting work on live equipment. Customer shall review
the MOP and any requested changes shall be negotiated. Customer shall give
Seller written acceptance of the MOP prior to start of the work.
The following items will be furnished by Seller if requested by
Customer, but Customer will be billed and shall pay for them in addition to
Seller's standard or firm quoted price for the Services:
Protection of Buildings and Equipment--Seller may provide protection of
buildings and equipment in accordance with special practices of Customer
differing from Seller's standard practices.
Maintenance--Maintenance of Products, Software and other items from
completion of installation until date of acceptance but nothing herein shall be
deemed to require Customer to pay for conversions of the Products, Software and
other items, which is otherwise determined by the terms of this Agreement are
the responsibility of Seller.
Locally Purchased Items--Purchase of items indicated by Seller's
specifications as needing to be purchased locally.
Readjusting Apparatus--Seller may provide readjustment (in excess of
that normally required on new apparatus) of apparatus associated with relocated
or rewired circuits.
Cross-Connections (Other than to Outside Cable Terminations)--Seller
may run or rerun permanent cross-connections in accordance with revised
cross-connection lists furnished by Customer.
Handling, Packing, Transportation and Disposition of Removed and
Surplus Customer Equipment--Except as otherwise provided in this Agreement,
Seller may pack, transport, and dispose of surplus and removed Customer
equipment as agreed by the parties.
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Premium Time Allowances and Night Shift Bonuses--Seller may have its
Services personnel work premium time and night shifts to the extent that Seller
may deem such to be necessary to effect the required coordination of installing
and testing operations or other Services because of Customer's requirements,
unless the need therefor results from Seller's failure to perform its
obligations hereunder in a reasonable and timely manner in which event Seller
shall bear the cost of premium time and night shifts for its personnel.
Emergency Lighting System--Seller may provide new emergency lighting
system (other than the original ceiling mounted stumble lighting) to satisfy
illumination and safety needs of Products of certain heights.
4.4. WORK DONE BY OTHERS:
Work done at the site by Customer or its other vendors or contractors
shall not interfere with Seller's performance of the installation or other
Services. If Customer or its other vendors or contractors fail to timely
complete the site readiness or if Customer's or its other vendors or
contractors' work interferes with Seller's performance, the scheduled completion
date of Seller's Services under this Agreement shall be extended as necessary to
compensate for such delay or interference.
4.5. SERVICES WARRANTIES:
(a) Seller warrants to Customer only, that Services will be performed in a
careful and workmanlike manner and in accordance with Seller's
specifications or those referenced in the order and with accepted
practices in the community in which such Services are performed, using
material free from defects except where such material is specified or
provided by Customer. If Services prove to be not so performed and if
Customer notifies Seller, with respect to engineering, installation, or
repair Services, within a period commencing on the date of
completion of the Service, and with respect to other Services, as
identified by Seller in writing, Seller, at its option, either will
correct the defective or nonconforming Service or render a full or
prorated refund or credit based on the original charge for the Service.
(b) Where Seller performs engineering or installation Services as part of a
combined engineering, furnishing, and installation order, the period
referenced above shall commence on completion of the installation
Service.
(c) THE FOREGOING SERVICES WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL
OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO
MAKE CORRECTIONS OR GIVE A CREDIT OR REFUND AS SET FORTH ABOVE IN THIS
WARRANTY.
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5. ARTICLE V
ENTIRE AGREEMENT AND EXECUTION
5.1. ENTIRE AGREEMENT:
The terms and conditions contained in this Agreement, including
Attachments A through M, any subordinate agreements, and orders accepted
pursuant to this Agreement or any subordinate agreement supersede all prior oral
or written understandings between the parties with respect to the subject matter
thereof and constitute the entire agreement of the parties with respect to such
subject matter. Such terms and conditions shall not be modified or amended
except by a writing signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the date(s) indicated.
WESTERN WIRELESS CORPORATION LUCENT TECHNOLOGIES INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Printed Name: ▇▇▇ ▇. ▇▇▇▇ Printed Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President, Engineering and Title: President, GCM
Technical Operations
Date: September 12, 1996 Date: September 12, 1996
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EXHIBIT 10.44
AMENDMENT NO. 2
TO
PCS 1900 SUPPLY AGREEMENT
BETWEEN
WESTERN PCS CORPORATION
AND
NORTHERN TELECOM INC.
Made as of this 25th day of July, 1996, by and between Western PCS
Corporation (hereinafter referred to as "Buyer"), a Delaware corporation with
offices located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and Northern Telecom Inc., a Delaware corporation with offices located at
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Seller").
WHEREAS, Buyer and Seller entered into a PCS 1900 Supply Agreement dated
June 30, 1995 ("Agreement"); and
WHEREAS, Buyer and Seller now wish to amend this Agreement in order to add
a new Schedule E to Annex 8 to allow for the further provision of Services,
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Buyer and Seller agree to amend the Agreement as follows:
1. Add a new Schedule E "Supplemental Project Services," as attached
hereto, to Annex 8. References to Schedule E shall be added to the Table of
Contents and to Article 22.
This Amendment No. 2 shall be retroactive to April 1, 1996 ("Effective
Date") upon execution by both parties.
Except as specifically modified herein, the Agreement shall in all
respects continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their representatives being thereunto duly authorized.
WESTERN WIRELESS CORPORATION NORTHERN TELECOM INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------ --------------------------------
Printed Name: ▇▇▇ ▇. ▇▇▇▇ Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Engineering Title: Vice President,
and Technical Operations Finance, Wireless Networks
Date: July 25, 1996 Date: August 19, 1996