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EXHIBIT 10.91
LICENSE AND SERVICES AGREEMENT
BETWEEN
WESTERN WIRELESS CORPORATION
AND
AMDOCS (UK) LIMITED
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TABLE OF CONTENTS
1. SCOPE AND DEFINITIONS..............................................................................2
1.1 SCOPE...........................................................................................2
1.2 DEFINITIONS.....................................................................................2
2. PURPOSE OF AGREEMENT...............................................................................6
2.1 PURPOSE OF AGREEMENT............................................................................6
3. PRODUCT LICENSE....................................................................................7
3.1 GRANT OF LICENSE................................................................................7
3.2 USE OF LICENSE..................................................................................7
3.3 SOURCE/OBJECT CODE..............................................................................7
3.4 DOCUMENTATION...................................................................................8
3.5 WARRANTIES......................................................................................8
3.7 MAINTENANCE....................................................................................10
3.8 LICENSE FEES...................................................................................10
3.9 PAYMENT OF THE LICENSE FEE.....................................................................12
4. PROJECT PLAN......................................................................................13
4.1 PHASES OF IMPLEMENTATION OF THE CUSTOMIZED PRODUCT.............................................13
4.2 DFD PROCEDURE..................................................................................13
4.3 CUSTOMIZATION AND CUSTOMIZATION ACTIVITIES.....................................................14
4.4 IMPLEMENTATION ACTIVITIES......................................................................15
4.5 SUPPORT SERVICES...............................................................................15
4.6 ACCEPTANCE TESTING.............................................................................15
4.7 ON-GOING SUPPORT...............................................................................16
4.8 CHANGE REQUEST PROCEDURE.......................................................................16
4.9 PROJECT MANAGEMENT.............................................................................17
5. MAINTENANCE SERVICES..............................................................................18
5.1 MAINTENANCE SERVICES...........................................................................18
5.2 MAINTENANCE FEE................................................................................19
6. HARDWARE AND THIRD PARTY SOFTWARE.................................................................20
6.1 PLATFORM.......................................................................................20
6.2 PLATFORM PURCHASE..............................................................................20
6.3 PLATFORM WARRANTY AND MAINTENANCE..............................................................20
7. PAYMENT...........................................................................................21
7.1 RATES AND RELATED PAYMENTS.....................................................................21
7.2 INVOICING STANDARD.............................................................................21
7.3 PAYMENT IN ARREARS.............................................................................21
7.4 PRICE PROTECTION...............................................................................22
7.6 TAXES..........................................................................................22
8. GENERAL TERMS AND CONDITIONS......................................................................23
8.1 TERM OF THE AGREEMENT..........................................................................23
8.2 ORDERS.........................................................................................23
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8.3 INTELLECTUAL PROPERTY RIGHTS...................................................................24
8.4 TITLE..........................................................................................24
8.5 CONFIDENTIALITY................................................................................24
8.6 ENTICEMENT OF STAFF............................................................................25
8.7 WORK RULES AND ACCESS TO FACILITIES............................................................25
8.8 NO WAIVER......................................................................................26
8.9 LIABILITY......................................................................................26
8.10 CONFLICT OF INTEREST........................................................................27
8.11 FORCE MAJEURE...............................................................................27
8.12 SEVERABILITY................................................................................27
8.13 ENTIRE AGREEMENT AND CHANGES................................................................28
8.14 TERMINATION.................................................................................28
8.15 GOVERNING LAW, ESCALATION PROCEDURE AND ARBITRATION.........................................30
8.16 INDEPENDENT CONTRACTOR......................................................................31
8.17 ASSIGNMENT AND SUBCONTRACTS.................................................................31
8.18 INTELLECTUAL PROPERTY RIGHTS INDEMNITY......................................................33
8.19 SURVIVAL OF OBLIGATIONS.....................................................................33
8.20 HEADINGS NOT CONTROLLING....................................................................33
8.21 NOTICES.....................................................................................34
8.22 SUCCESSORS AND ASSIGNEES....................................................................34
8.23 NO THIRD PARTY BENEFICIARIES................................................................34
8.24 AUTHORITY...................................................................................35
8.25 EXECUTION OF THE AGREEMENT..................................................................35
APPENDIX 1-- ORDER NO. 1 (LICENSE AND SERVICES)
APPENDIX 2 -- ORDER NO. 2 (MAINTENANCE SERVICES)
APPENDIX 3 -- FORM OF OGS SERVICES ORDER
EXHIBIT A -- RATES AND EXPENSES
EXHIBIT B -- CONFIDENTIALITY AGREEMENT BETWEEN AMDOCS AND COMPANY
EXHIBIT C -- CONFIDENTIALITY AGREEMENTS WITH THIRD PARTY SUBCONTRACTORS
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▇▇▇. A to Exh. C
LICENSE AND SERVICES AGREEMENT
THIS LICENSE AND SERVICES AGREEMENT ("Agreement") is made as of the 2nd day of
August, 1999 by and between:
WESTERN WIRELESS CORPORATION, a corporation incorporated under the laws of the
State of Washington, having offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (hereinafter referred to as "COMPANY"); and
AMDOCS (UK) LIMITED, a company incorporated under the laws of England, having
offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (hereinafter
referred to as "AMDOCS").
WHEREAS AMDOCS is interested in licensing to COMPANY the use of AMDOCS'
proprietary software products that are part of AMDOCS' sets of
information systems known as the Ensemble, in providing to COMPANY the
Customization Services, Support Services and Maintenance Services
related to such software products, and in providing to COMPANY related
third party hardware and software products, and has the right to do
so, all pursuant to the terms and subject to the conditions of this
Agreement; and
WHEREAS COMPANY is engaged in the business of providing wireless
telecommunications services, and wishes to enter into an agreement
with AMDOCS which will give COMPANY the right to purchase a license
for the use of software products that are part of the Ensemble, as
well as related Customization Services, Support Services and
Maintenance Services, and related third party hardware and software
products; and
WHEREAS in accordance with this Agreement and Order Nos. 1 and 2, attached
hereto as Appendices 1 and 2 and made an integral part hereof, AMDOCS
is providing to COMPANY, and COMPANY is acquiring from AMDOCS, the
licenses, Customization Services, Support Services and Maintenance
Services and third party hardware and software products specified in
those Orders; and
WHEREAS AMDOCS and COMPANY agree that this Agreement will also provide a
framework that will enable COMPANY to acquire from AMDOCS additional
licenses, services, and third party hardware and software products,
all pursuant to orders to be placed with AMDOCS in accordance with the
terms and subject to the conditions of this Agreement;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
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1. SCOPE AND DEFINITIONS
1.1 SCOPE
For purposes of this Agreement, all terms defined herein shall have
the meanings so defined unless the context clearly indicates
otherwise. A term defined in the singular shall include the plural and
vice versa when the context so indicates. References to Sections,
Appendices and Exhibits are to sections, appendices and exhibits of
and to this Agreement, except in any Order when references to Sections
are to sections of the relevant Order, unless specified otherwise.
1.2 DEFINITIONS
1.2.1 ACCEPTANCE TEST; ACCEPTANCE TESTING; ACCEPTANCE
"Acceptance Tests", "Acceptance Testing" and "Acceptance" are as
defined in Section 4.6.
1.2.2 AMDOCS AFFILIATE
"Amdocs Affiliate" means a company that controls, is controlled by, or
is under common control with AMDOCS, where "control" means the holding
of more than fifty percent (50%) of equity ownership.
1.2.3 ARBITRATOR
"Arbitrator" is as defined in Section 8.15.3.
1.2.4 AUTHORIZED SUBCONTRACTORS
"Authorized Subcontractors" are as defined in Section 8.17.3.
1.2.5 BILLING PERIOD
"Billing Period" is as defined in Section 7.2.1.
1.2.6 COMPANY AFFILIATE
"COMPANY Affiliate" means a company that controls, is controlled by,
or is under common control with COMPANY, where "control" means the
holding of more than fifty percent (50%) of equity ownership, or a
joint venture or similar business relationship in which COMPANY has an
interest and in which COMPANY is responsible for producing bills.
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1.2.7 CUSTOMIZATION
"Customization" means the modifications, additions or changes to the
Licensed Products, as set forth in the DFS attached to or referenced
in the applicable Order, prior to Acceptance (as defined hereinbelow).
1.2.8 CUSTOMIZATION SERVICES
"Customization Services" are as defined in Section 4.3.1.
1.2.9 CUSTOMIZED PRODUCT
"Customized Product" means the software modules required for operation
of the Licensed Products to satisfy COMPANY's business needs and
purposes, as shall be specified in the relevant DFS documents annexed
to or referenced in applicable Orders from time to time, whether of
generic nature or as specifically developed for COMPANY. "Customized
Product" also refers to any part thereof.
1.2.10 DAD
"DAD" means Detailed Architectural Design.
1.2.11 DFD
"DFD" means the Detailed Functional Design phase of implementation of
the Licensed Product, in which the specifications of the Customized
Product designed to meet the business needs and requirements of
COMPANY will be identified and then detailed in the DFS documents.
1.2.12 DFS
"DFS" means the Detailed Functional Specifications, which are the
direct result of the DFD.
1.2.13 ENSEMBLE
"Ensemble" means AMDOCS' proprietary wireless, long-distance, paging,
and other software products that exist from time to time.
1.2.14 ILF
"ILF" means the Initial License Fee, as defined in Section 3.7.1 and
determined in accordance with Section 3.7.2.
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1.2.15 INDEX
"Index" is as defined in Section 7.4.
1.2.16 INSTALLATION SITE
"Installation Site" means the building location(s), specified by
COMPANY, at which the Customized Product will reside.
1.2.17 INTELLECTUAL PROPERTY RIGHTS
"Intellectual Property Rights" means patents, trademarks, trade names,
copyrights, trade secrets, rights of privacy, rights of publicity, and
other intellectual property and proprietary rights registered or
enforceable in North America. and/or the United Kingdom.
1.2.18 LICENSE FEES
"License Fees" means the license fees payable to AMDOCS in accordance
with Section 3.7 hereunder and the applicable Order.
1.2.19 LICENSED PRODUCTS
"Licensed Products" means the software modules which comprise the
generic software products of AMDOCS which are part of the Ensemble.
"Licensed Product" also refers to any part thereof when the context so
requires.
1.2.20 MAINTENANCE FEE
"Maintenance Fee" is as defined in Section 5.2.1.
1.2.21 MAINTENANCE PERIOD
"Maintenance Period" means, initially, the term commencing upon
expiration of the Warranty Period and ending one year later, and
thereafter, each subsequent term of one (1) year.
1.2.22 MAINTENANCE SERVICES
"Maintenance Services" means those services defined in Section 5.1.1
and to be provided by AMDOCS pursuant to Section 5 and an applicable
Order.
1.2.23 OGS
"OGS" means ongoing support, as defined in Section 4.7.1.
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1.2.24 OGS SERVICES
"OGS Services" are as defined in Section 4.7.3.
1.2.25 ORDER
"Order" means a COMPANY document issued under Section 8.2, executed,
confirmed or acknowledged in writing by both parties ordering a license
to use a Licensed Product, a Customized Product, Customization
Services, Support Services or Maintenance Services, or any combination
thereof.
1.2.26 PLATFORM
"Platform" means the hardware and any third party's system software,
upon and in conjunction with which the Customized Product, will operate
and which, pursuant to Section 6.1, will be installed by COMPANY in a
detailed configuration to be mutually agreed upon by AMDOCS and COMPANY
and to be specified in the DAD document.
1.2.27 SLF
"SLF" means Subsequent License Fee, as defined in Section 3.7.1 and
determined in accordance with Sections 3.7.4 and 3.7.5.
1.2.28 SUBSCRIBER
"Subscriber" means any person or entity that has been assigned,
directly or indirectly by COMPANY, a unique number for a wireless,
long-distance, CLEC, ISP, data, paging or other telecommunications
service (or combination thereof ) that is billed by COMPANY through the
Customized Products. Each Subscriber shall be counted only as one,
regardless of the number of services and type of service that COMPANY
provides to such Subscriber, unless such Subscriber is assigned,
directly or indirectly by COMPANY, more than one unique number for any
particular service, in which case the number of Subscribers shall equal
the number of unique numbers assigned by COMPANY. "Subscriber" shall
not include any prepaid service accounts, or subscription for a
service, telecommunications access line, service, or number that was
disconnected for more than one (1) month. Actual Subscriber count will
be verified by COMPANY's annual financial audit.
1.2.29 SUCCESSOR
"Successor" shall have the meaning set forth in Section 8.17.2.
1.2.30 SUPPORT SERVICES
"Support Services" are as defined in Section 4.5.1.
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1.2.31 TERMINATE OR TERMINATION
"Terminate" or "Termination" means the ending by COMPANY of this
Agreement or any Order issued hereunder in accordance with Section
8.14.
1.2.32 TERRITORY
"Territory" means North America.
1.2.33 VERIFICATION DATE
"Verification Date" is as defined in Section 3.7.4.
1.2.34 WARRANTY; WARRANTY PERIOD
"Warranty" and "Warranty Period" are as defined in Section 3.5.1.
2. PURPOSE OF AGREEMENT
2.1 PURPOSE OF AGREEMENT
2.1.1 The purpose of this Agreement is to provide a framework which will,
subject to the terms and conditions of this Agreement, give COMPANY the right to
acquire from AMDOCS licenses to the Licensed Products and the related Customized
Products, Customizations, Customization Services, Maintenance Services and
Support Services.
2.1.2 Licenses or services of AMDOCS hereunder will be provided pursuant to
Orders issued by COMPANY and accepted by AMDOCS (in accordance with the
procedures specified in Section 8.2 and the other applicable terms and the
conditions of this Agreement). Each Order will relate to the specific Licensed
Product(s), Customized Products, Customization Services, Support Services or
Maintenance Services as set out in Sections 3.1, 4.3, 4.5 and 5, respectively.
Accordingly, and pursuant thereto, AMDOCS will provide COMPANY with the ordered
license(s), Customization Services, Maintenance Services and Support Services as
requested by COMPANY.
2.1.3 In addition to the above, COMPANY shall, except as provided herein,
purchase, through AMDOCS, hardware components and standard third party's system
software comprising parts of the Platform, and AMDOCS shall sell the same in
accordance with and subject to the provisions of Section 6 and pursuant to an
Order to be issued by COMPANY and accepted by AMDOCS.
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3. PRODUCT LICENSE
3.1 GRANT OF LICENSE
Subject to the terms and conditions of this Agreement and the
applicable Order(s) issued by COMPANY hereunder, AMDOCS shall grant to
COMPANY a perpetual, non-exclusive and non-transferable (except as
provided herein) license to use the Licensed Product(s) and/or the
Customized Product(s) specified in such Order(s) in accordance with the
provisions of this Agreement and the applicable Order, provided that
the applicable fees are fully paid in accordance herewith. COMPANY has
ordered a license for the Licensed Products, the Customized Products,
and for related Customization Services and Support Services as
specified in Order No. 1 (attached hereto as Appendix 1).
3.2 USE OF LICENSE
3.2.1 COMPANY hereby agrees to accept the license granted by AMDOCS under the
specific Order(s) for the Licensed Product(s) and/or the Customized Product(s),
to pay the License Fees specified therein, and to exercise such license only in
accordance with the terms and conditions of this Agreement and the applicable
Order.
3.2.2 COMPANY shall use each Licensed Product(s) and/or Customized Product(s)
and all the information related thereto solely for COMPANY's businesses in
accordance with the terms and conditions of this Agreement. COMPANY shall not
use for or sublicense to any third party the Licensed Products, the Customized
Product or any part thereof, and shall not allow their use by any third party
without AMDOCS' prior written consent. Notwithstanding the foregoing, COMPANY
Affiliates and COMPANY's Successor shall be entitled to order and use the
Licensed Products and the Customized Products, subject to full compliance in
writing by such COMPANY Affiliates and Successor with all the applicable terms
and conditions of this Agreement.
3.2.3 Company may use the Licensed Products and the Customized Products from
any of Company's data centers within the Territory and/or the UK to render bills
for Subscribers located outside the Territory and, in such event, shall receive
the full protection of AMDOCS' indemnification obligations under Section 8.17
for all such activities. In addition, if, but only if, AMDOCS advises Company in
writing that it is able to extend such indemnification obligation to a location
outside the Territory, Company shall be entitled to use the Licensed Products in
such location outside the Territory to render bills to Subscribers with the full
benefit of such indemnification obligations.
3.3 SOURCE/OBJECT CODE
AMDOCS will provide COMPANY, upon Acceptance of the Customized Product,
with all relevant source and object code of the Licensed Products and
Customized Products delivered by AMDOCS (including all new releases and
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versions of the same as they become available, and all support files,
configuration, and related components, not including third party
software, necessary for the operation and maintenance of the Licensed
Products and Customized Products.
3.4 DOCUMENTATION
AMDOCS will provide COMPANY with the associated documentation for the
Customized Product delivered under the applicable Orders hereunder in a
computer-readable format in English, as shall be specified in an annex
to the applicable Order.
3.5 WARRANTIES
3.5.1 Unless otherwise specified in an Order, AMDOCS will provide COMPANY
with a warranty for each Licensed Product (the "Warranty") for a period of six
(6) months after Acceptance of the Customized Product by COMPANY (the "Warranty
Period") by providing, at no cost to COMPANY, Maintenance Services as specified
in Section 5.1.3 for defects reported by COMPANY in writing during the Warranty
Period.
3.5.2 Year 2000 Compliance
a) AMDOCS warrants that the Licensed Product and Customized Product,
as further specified in the DFS, is "Year 2000 Compliant", which
means the Licensed Product and Customized Product are able to:
(One) correctly and unambiguously handle and process date
information before, during and after January 1, 2000.
This includes, but is not limited to, accepting date
input, providing date output, storing and retrieving
dates and the ability to perform calculations on dates
or portions of dates;
(Two) correctly process functions that are programmed to
commence and/or end on a particular date, including,
but not limited to month-end, year-end, leap year and
any combination thereof, irrespective of the change in
the century identifier;
(Three) function accurately and without interruption before,
during, and after January 1, 2000 without any change in
operations and/or parameters associated with the advent
of the new century; and
(Four) respond, in the manner to be defined in the DFS, to
two-digit year date input in a way that resolves the
ambiguity as to the century in a disclosed, defined and
predetermined manner; and to store and provide output
of date information in ways that are unambiguous as to
the century.
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b) COMPANY shall provide AMDOCS with a suitable testing environment
and data to enable AMDOCS to test the conformity of the
Customized Product with such warranty, in accordance with a
timetable agreed between the parties. Such environment should be
identical or substantially similar to COMPANY's overall
environment for all of COMPANY's activities.
c) In the event of any breach of the foregoing warranty, AMDOCS will
promptly correct, at no charge, any problems with respect to the
foregoing to achieve compliance therewith, provided the error is
reported to AMDOCS within the Warranty Period.
iv) AMDOCS does not make any representations or warranties as to the
ability of the Customized Product to be Year 2000 Compliant when used
or interfaced with other system(s), software, hardware, data or
equipment which is not Year 2000 Compliant or which does not have a
properly functioning wrapper allowing correct exchange of date-related
data, unless such a wrapper is part of the Customized Product.
Operability with external interfaces is subject to be predefined in the
DFS and in accordance therewith. Furthermore, the Year 2000 warranties
above shall not apply in the event that the Platform or any module of
the Licensed Products or Customization is altered, modified or adjusted
in a manner that directly or indirectly affects Year 2000 compliance,
and such alteration, modification or adjustment is made by COMPANY or
any third party without AMDOCS' prior written consent.
AMDOCS will have no liability for the Year 2000 readiness of, or for
any Year 2000 defect or error or deficiency in any system, software or
service which is not provided by AMDOCS under this Agreement.
3.5.3 AMDOCS further represents and warrants to COMPANY as follows:
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3.5.3.1 AMDOCS owns or possesses all necessary licenses or other valid rights to
use and license all Licensed Products and Customized Products, and all Licensed
Products, Customized Products and Customizations shall not infringe or
misappropriate any Intellectual Property Right of any third party, and the
Customization Services, Maintenance Services and Support Services shall not
cause any such infringement or misappropriation or constitute unfair competition
of any kind.
3.5.3.2 The execution, delivery, and performance of this Agreement (i) have been
authorized by all necessary action, if any; (ii) do not violate any law, rule,
or regulation or the terms of any order, judgment, or decree to which AMDOCS is
subject, or the terms of any material agreement to which AMDOCS or any of its
assets may be subject; and (iii) are not subject to the consent, approval, or
other action of any third party.
3.5.3.3 This Agreement is a valid and binding obligation of AMDOCS, enforceable
against AMDOCS in accordance with its terms.
3.5.3.4 All Customization Services, Maintenance Services and Support Services
shall be performed in a professional manner, shall be of a high grade, nature,
and quality, and shall conform in all material respects with the requirements of
this Agreement and the Orders.
3.5.4 DISCLAIMER
THE FOREGOING WARRANTIES (AND ANY OTHER WARRANTIES EXPRESSLY SET FORTH
IN THIS AGREEMENT) ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL,
WRITTEN, EXPRESS, IMPLIED OR STATUTORY. THERE ARE NO OTHER WARRANTIES.
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
ANY OTHER STATUTORY WARRANTIES OF ANY KIND ARE HEREBY WAIVED. COMPANY
EXPRESSLY AGREES THAT AMDOCS DOES NOT REPRESENT OR WARRANT THAT THE
LICENSED PRODUCTS OR THE CUSTOMIZED PRODUCTS WILL OPERATE ON COMPUTER
HARDWARE OR OPERATING SYSTEMS OTHER THAN THE PLATFORM.
3.6 MAINTENANCE
AMDOCS shall provide to COMPANY Maintenance Services in accordance with
the provisions of Section 5 and an applicable Order.
3.7 LICENSE FEES
3.7.1 The License Fee to be paid by COMPANY for the license to use a Licensed
Product and related Customized Product(s) will be specified in the applicable
Order. The License Fee shall be comprised of an Initial License Fee ("ILF") and
Subsequent License Fee ("SLF").
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3.7.2 The ILF for a use of a Licensed Product by COMPANY inside the Territory
and related Customized Product(s) will be determined based on the number of
Subscribers in the Territory for which COMPANY desires to acquire the right to
use such Licensed Product and related Customized Product(s) at the time an Order
for that Licensed Product and related Customized Product(s) is issued, but not
less than the actual number of COMPANY's Subscribers at such time, as
represented by COMPANY to AMDOCS and specified in the Order for the Licensed
Product and related Customized Products. The license fee is a cumulative fee
comprised of the relevant base fee and incremental fees for the relevant number
of Subscribers.
3.7.3 The ILF for a use of a Licensed Product by COMPANY in any market outside
the Territory will be based on the number of Subscribers in such market at the
time the Licensed Product is first used. In the event that such a market
contains more than 100,000 Subscribers, then COMPANY shall pay ILF as calculated
in Order No. 1 and shall pay SLF at a rate of 85% of the SLF table as specified
in Order No. 1. In the event that the number of Subscribers in such a market is
less than or equal to 100,000, then COMPANY: (i) shall not be required to pay
ILF, and (ii) shall pay SLF for the actual number of such Subscribers at the SLF
rate table in Order No. 1; provided, however, that such rates shall commence
from the first such Subscriber upwards, rather than commencing at 800,000
Subscribers, and shall be calculated in accordance with 85% of the SLF table in
Order No. 1, always commencing with a deemed 800,000 subscribers and adding the
actual number of Subscribers. The number of Subscribers shall be calculated
annually in accordance with Section 3.8.4.
3.7.4 COMPANY's number of Subscribers (as specified in the applicable Order for
a Licensed Product and related Customized Product(s) and/or Customizations) will
be reviewed annually, commencing on the first business day after issuance of
COMPANY's annual financial statements following execution of such Order but not
later than April 15th of each year (the "Verification Date"). The number of
Subscribers as of each Verification Date shall be notified by COMPANY to AMDOCS,
and certified to AMDOCS by COMPANY's independent auditors within sixty (60) days
of the Verification Date. COMPANY will ensure that such certification shall be
made directly by such auditors to AMDOCS within such sixty (60) day period.
3.7.5 If the number of COMPANY's Subscribers at the time of such annual review,
as compared to the number of Subscribers at the later of the time the Order for
the Licensed Product was issued or as at the previous Verification Date has
increased, then COMPANY will pay AMDOCS SLF in accordance with such increase
unless otherwise specified an applicable Order. The amount of SLF to be paid,
based on increments of increased numbers of Subscribers, will be specified in
such Order.
3.7.6 The license fees for a COMPANY Affiliate that uses a Licensed Product will
be based on the number of Subscribers of such COMPANY Affiliate on the date the
applicable Licensed Product is first used (the "Affiliate Subscribers"). If the
number of Affiliate Subscribers is greater than the number of COMPANY
Subscribers on the last
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Verification Date, then the COMPANY Affiliate shall be required to pay ILF and
SLF as specified in Order No. 1. If the number of Affiliate Subscribers is less
than or equal to the number of COMPANY Subscribers on the last Verification
Date, then such COMPANY Affiliate (i) shall not be required to pay ILF, and (ii)
shall pay SLF for the number of Affiliate Subscribers, as specified in Order No.
1.
3.7.7 A COMPANY Successor that uses a Licensed Product will not be required to
pay any additional license fees in order to continue to use the Licensed Product
(except for the normal Subsequent License Fees provided for herein); provided,
however, that such COMPANY Successor may only use such Licensed Product in the
locations in which COMPANY and its Affiliates are using the Licensed Product at
the time the rights of COMPANY under this Agreement are assigned to COMPANY
Successor. If COMPANY Successor desires to use the Licensed Product in locations
other than those used by COMPANY and its Affiliates at the time the rights of
COMPANY under this Agreement are assigned to COMPANY Successor, COMPANY
Successor will be required to pay an additional license fee as mutually agreed
between COMPANY Successor and AMDOCS.
3.7.8 Upon reasonable prior notice, AMDOCS shall have the right, once annually,
through an independent auditor to be appointed by AMDOCS at AMDOCS' expense, to
audit during normal business hours COMPANY's records relating to COMPANY's
number of Subscribers. If the number of Subscribers revealed by such annual
audit is five (5%) percent or more than the number provided to AMDOCS by
COMPANY's annual audit, then without derogating from AMDOCS' rights hereunder,
COMPANY shall pay SLF in accordance with the results and reimburse AMDOCS the
costs of such independent audit.
3.8 PAYMENT OF THE LICENSE FEE
3.8.1 The ILF for each Licensed Product will be paid by COMPANY pursuant to the
payment schedule specified in each applicable Order.
3.8.2 Unless otherwise specified in an applicable Order, COMPANY will pay SLF in
its entirety to AMDOCS no later than sixty (60) days following the Verification
Date, in accordance with the provisions of Sections 3.7.4 and 3.7.5.
3.8.3 Upon expiration or other termination of this Agreement, COMPANY's
obligation to pay ILF and SLF shall expire.
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4. PROJECT PLAN
4.1 PHASES OF IMPLEMENTATION OF THE CUSTOMIZED PRODUCT
4.1.1 The timetable and the phases for the implementation of the Customized
Product specified in an Order will be agreed upon between the parties and
specified in writing to be annexed to the DFS.
4.1.2 The parties will also agree
on an implementation plan, roles and responsibilities for tasks, dependencies
between tasks and time schedules. Specific implementation tasks will be
allocated to COMPANY and AMDOCS personnel as shall be agreed upon between the
parties. COMPANY acknowledges that its implementation work is a pre-condition
for AMDOCS' preparation of the Customized Product for installation and
Acceptance Testing.
4.2 DFD PROCEDURE
4.2.1 AMDOCS and COMPANY shall jointly carry out the DFD procedure. AMDOCS'
services with respect to the DFD shall be ordered by COMPANY by issuing an
Order.
4.2.2 During the DFD, the parties shall:
a) verify the functionalities for the Customized Product designed to
meet COMPANY's business needs. Such functionalities will be
specified in the DFS; and
b) determine the detailed hardware and third party's system software
configurations required to meet COMPANY performance needs from the
Customized Product in accordance with the DFS, based upon the
information provided by COMPANY to AMDOCS. Such configuration shall
be set forth in the DAD document.
4.2.3 At the conclusion of the DFD, AMDOCS shall submit the DFS to COMPANY for
COMPANY's approval. COMPANY agrees to respond to all of AMDOCS' requests in a
timely manner, and to review and make commercially reasonable efforts to either
approve or reject the DFS within fourteen (14) days of submission. In the event
that COMPANY rejects the DFS or any part thereof, COMPANY shall promptly provide
to AMDOCS a detailed written list of the rejected items and explanations for the
reasons for rejection of such items. The parties acknowledge that failure to
approve or reject the DFS within that time period may jeopardize compliance with
the project timetable agreed between the parties.
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4.3 CUSTOMIZATION AND CUSTOMIZATION ACTIVITIES
4.3.1 AMDOCS, as part of its services for providing COMPANY with the
Customization ("Customization Services," as specified in Section 4.3.2), shall
modify the Licensed Products to create the Customized Product in accordance with
the DFS and the applicable Order. Details of the Customization shall be
determined during the DFD and specified in the DFS. Customization Services shall
be ordered by COMPANY by issuing an Order. COMPANY has ordered Customization
Services pursuant to Order No. 1 (attached hereto as Appendix 1).
4.3.2 The Customization Services include the following activities:
a) Detailed Programming Design (DPD), which is the technical design for
implementing the functions specified for the Customized Product,
including the adjustments to the Database ERD and the Customized
Product documentation;
b) Programming, testing and documenting changes to the Licensed
Products as required to produce the Customized Product in accordance
with the DFS;
c) Programming, testing and documenting the Database ERD as required to
produce the Customized Product;
d) Preparation and delivery of software documentation for the
Customized Product on or before installation;
e) Provision of the source code of the Customized Product;
f) Designing, documenting and executing a modular test for each module
of the Customized Product;
g) Designing, documenting and executing an integration system test of
the Customized Product; and
h) Delivery of the Customized Product.
i) Configuring, optimizing, and documenting the production environment
for efficient operation of the system.
j) Development and delivery of technical and user training materials
suitable for the initial training of system users and technical
Information Technology support personnel.
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4.4 IMPLEMENTATION ACTIVITIES
AMDOCS will assume overall responsibility for the implementation
activities; provided, however, that COMPANY and AMDOCS will each
perform their respective tasks required for implementation of the
Customized Product at COMPANY, in accordance with the roles and
responsibilities document to be attached as an annex to each applicable
Order.
4.5 SUPPORT SERVICES
4.5.1 During the term of this Agreement, COMPANY shall be entitled to request
from AMDOCS support services required for the implementation activities, the OGS
Services and any other software-related services required by COMPANY ("Support
Services", as described in greater detail in Section 4.7.)
4.5.2 Support Services shall be ordered by COMPANY by issuing an Order. COMPANY
has ordered Support Services pursuant to Order No. 1 (attached hereto as
Appendix 1).
4.6 ACCEPTANCE TESTING
4.6.1 COMPANY will perform with respect to the Customized Product delivered
hereunder acceptance testing procedures ("Acceptance Testing" or "Acceptance
Tests"), during a period of thirty (30) consecutive days, to ascertain whether
the Customized Product operates in accordance with the DFS. COMPANY will develop
and define the Acceptance Testing procedures to be used. AMDOCS will assist
COMPANY in developing an applicable Acceptance Testing plan in accordance and
consistent with the DFS. Such user Acceptance Testing plan will be utilized
during the Acceptance Testing procedures and may be modified as necessary in the
COMPANY's reasonable judgement to determine if the Customized Product operates
in accordance with the DFS. Acceptance Testing will commence within ten (10)
days of the date AMDOCS notifies COMPANY of the installation of the Customized
Product.
4.6.2 On a date prior to performance of Acceptance Testing, to be agreed between
the parties, but no later than sixty (60) days prior to the scheduled
installation of the Customized Product for Acceptance Testing (unless otherwise
agreed by the parties), COMPANY will provide AMDOCS with data for conversion
purposes, and AMDOCS and COMPANY shall perform such conversion of data in
accordance with their respective activities as set forth in the roles and
responsibilities document attached to the applicable Order.
4.6.3 During the Acceptance Testing, COMPANY will notify AMDOCS promptly in
writing of any inconsistency(ies) with the DFS found by COMPANY, and AMDOCS, as
part of its Customization Services, will correct such inconsistency(ies) and
AMDOCS will deliver and implement the resulting corrections. The Customized
Product shall be
19
accepted ("Accepted" or "Acceptance"):
(i) when COMPANY determines and notifies AMDOCS in writing that such
Customized Product meets the requirements of the user Acceptance
Testing plan referred to in Section 4.6.2 in all material aspects,
such Acceptance cannot be unreasonably withheld; or
(ii) if COMPANY commences operational use of the Customized Product,
then (a) COMPANY shall provide a list of errors to AMDOCS, and AMDOCS
shall correct such errors promptly; (b) Acceptance shall occur on the
earlier of the expiration of ninety (90) days of operational use or
upon AMDOCS' correction of substantially all such errors identified by
COMPANY; and (c) notwithstanding anything to the contrary in this
Agreement, the Warranty Period shall be extended by one half (1/2) of
the time between the commencement of operational use and Acceptance.
4.6.4 AMDOCS will assist COMPANY with respect to Acceptance Testing and
preparations thereto by providing Support Services as ordered by COMPANY in
accordance with the applicable Order.
4.7 ON-GOING SUPPORT
4.7.1 Prior to commencement of Acceptance Testing of the Customized Product,
COMPANY will set up an on-going support ("OGS") team to be chaired by the head
of COMPANY's Information Technology Department and comprised of COMPANY and
AMDOCS personnel who are acquainted with the Customized Product, subject to
Section 4.7.3.
4.7.2 The head of COMPANY's Information Technology Department will be
responsible for contact with AMDOCS in respect of AMDOCS' undertakings to
provide Maintenance Services and OGS activities as specified herein. It is the
parties' intention that the OGS team will function as an intermediary between
AMDOCS and the various persons/users in COMPANY, collecting and providing AMDOCS
with as much relevant information as reasonably possible regarding any reported
error, its occurrence and its impact.
4.7.3 During the term of this Agreement, COMPANY shall be entitled to request
from AMDOCS services with respect to OGS activities and personnel for the OGS
team ("OGS Services"). OGS Services shall be ordered by COMPANY by issuing an
Order in writing from COMPANY's head of Information Technology Department.
COMPANY shall be entitled to order OGS Services pursuant to the form of Order
attached hereto as Appendix 3.
4.8 CHANGE REQUEST PROCEDURE
The parties agree that it is in their mutual interest to minimize the
changes made to the Licensed Products. Requests by COMPANY for changes
to the Licensed
20
Products not initially considered by the parties as part of the scope
of the Customized Product or Customization Services to be provided
hereunder or changes after the approval of the DFS will be deemed to
be a Change Request. For this purpose, the parties agree that Change
Requests may be made by COMPANY, but only subject to the following
procedure:
4.8.1 The parties will establish a joint committee to deal with any Change
Request;
4.8.2 Every Change Request will be submitted in writing by COMPANY to AMDOCS
including a detailed description of the change and the reason for it, and shall
be signed by the head of COMPANY's IT department;
4.8.3 AMDOCS will review such Change Request and provide COMPANY with an initial
cost estimate and anticipated schedule and Platform changes as a result of
implementing such change;
4.8.4 COMPANY will then decide whether to implement the change or ask AMDOCS to
perform a detailed design relating to such a change in order to provide COMPANY
with a more refined cost estimate and schedule change; and
4.8.5 All AMDOCS activities relating to Change Requests (including the
implementation of such changes) will be considered Support Services. AMDOCS
shall undertake no work unless authorized in writing by the head of COMPANY's
Information Technology Department.
4.9 PROJECT MANAGEMENT
COMPANY and AMDOCS will each designate a Project Manager to coordinate
the work to be performed under this Agreement and Orders issued and
accepted hereunder. With respect to each Order, AMDOCS may not replace
its Project Manager without the consent of COMPANY, which consent shall
not be unreasonably withheld. The Project Managers will meet on a
regular basis to discuss and review the progress of the work by both
parties under the applicable Orders.
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5. MAINTENANCE SERVICES
5.1 MAINTENANCE SERVICES
5.1.1 AMDOCS will provide maintenance services with respect to the Licensed
Products, consisting of correction of errors found in modules of the current
version of such products, provision of improvements, enhancements, modifications
and new releases (not including major new modules defined by AMDOCS as
separately priced components of the Licensed Product or the Ensemble modules),
and reasonable consultation by telephone ("Maintenance Services"), subject to
payment of the Maintenance Fees as set forth hereinafter. COMPANY shall order
Maintenance Services pursuant to an Order hereunder. COMPANY has ordered
Maintenance Services pursuant to Order No. 2 (attached hereto as Appendix 2).
5.1.2 Maintenance Services hereunder shall commence (provided an applicable
Order has been issued and accepted as aforesaid) upon expiration of the Warranty
Period. Maintenance Services hereunder shall be available during the term of
this Agreement, provided that all Maintenance Fees are duly paid, and further
provided there is no termination of the Maintenance Services during that period.
5.1.3 The procedure for error correction shall be as follows: the OGS team
(referred to in Section 4.7.1) shall be notified of the error condition
discovered; the OGS team will endeavor to determine the source of such error
condition, whether it is in the Platform, in one of the modules of the Licensed
Products, an operational error, or some other source; in the event that one of
the Licensed Products is the source for said error condition, the OGS team will
notify AMDOCS promptly of said error and provide AMDOCS, in reasonable detail,
with all the information obtained by it with respect to such error, in order to
assist AMDOCS to correct such error; AMDOCS will identify the cause for the
error and will provide the solution and programs required to correct such error
and to perform cleanup to the OGS team; the OGS team will run such programs to
(a) implement the correction and (b) implement any clean-up activity required.
If it is found that an error condition which was reported to AMDOCS is not an
error in the Licensed Product (unless otherwise specified in the applicable
Order, Maintenance Services are provided for the Licensed Product, only), AMDOCS
will have the right to charge COMPANY for the time spent in handling and
diagnosing the matter, at its hourly rates set out in Exhibit A.
5.1.4 The Warranty and the Maintenance Services shall apply to all modules of
the Licensed Products, including those that are altered, modified or adjusted in
any manner by COMPANY. In the event that any services are rendered by AMDOCS to
COMPANY resulting from or caused by modifications, alterations, or adjustments
of the Licensed Products that were not made by AMDOCS, then AMDOCS shall charge
COMPANY for such services at its hourly rates set out in Exhibit A. In the event
that COMPANY and AMDOCS enter into a joint project, then the portion of the
project for which AMDOCS shall provide Maintenance Services will be specified in
the Order.
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5.2 MAINTENANCE FEE
5.2.1 The consideration for the Maintenance Services ("Maintenance Fee") for
each Maintenance Period for which Maintenance Services are ordered by COMPANY
shall be an amount equal to the lower of: (i) fifteen percent (15%) of AMDOCS'
discounted License Fees for the applicable Licensed Product; or (ii) the
Maintenance Fee for the previous year plus ten percent (10%). The Maintenance
Fee for the first Maintenance Period shall be fifteen percent (15%) of AMDOCS'
discounted License Fees for the applicable Licensed Products. Notwithstanding
the foregoing, the annual Licensed Product Maintenance Fee for each COMPANY
Affiliate shall be an amount equal to fifteen percent (15%) of AMDOCS'
discounted License Fees for the applicable Licensed Product. On an ongoing
yearly basis, the calculation of the Maintenance Fee will take into account all
such License Fees, including ILF and SLF.
5.2.2 If under any applicable Order the Maintenance Services will include
services for the Customized Product, the Maintenance Fee will include, in
addition to the above annual Maintenance Fee, (i) ten (10%) percent of the
applicable Customization Services fees for the first three (3) years after the
end of the Warranty Period; and (ii) seven and one-half (7.5%) percent of the
applicable Customization Services fees for the next three (3) years; and (iii)
zero (0%) percent thereafter. The Maintenance Fees in this Section shall also
apply to separate modules of the Customized Product, until AMDOCS incorporates
such separate modules into the generic ENSEMBLE modules. At such time, even if
during the timeframes specified in sub-sections 5.2.2(i) and 5.2.2(ii), COMPANY
will not be required to pay Maintenance Fees for Maintenance Services for such
modules.
5.2.3 The Maintenance Fee for each Maintenance Period will be invoiced and paid
by COMPANY in advance in two (2) semi-annual equal installments, the first
payable on or before the commencement of the Maintenance Period and the second
within six (6) calendar months of the commencement of that Maintenance Period or
of the previous payment date, as the case may be.
5.2.4 If, for any reason, COMPANY did not request that Maintenance Services
commence upon conclusion of the Warranty or has terminated or not renewed a
Maintenance Services Order, or if, after some period of time during which
COMPANY does not request from AMDOCS Maintenance Services, COMPANY requests
AMDOCS to commence (or, as the case may be, to recommence) Maintenance Services,
AMDOCS, at its discretion and notwithstanding anything to the contrary herein,
may agree to provide such services.
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6. HARDWARE AND THIRD PARTY SOFTWARE
6.1 PLATFORM
COMPANY undertakes to install at the Installation Site(s) the Platform
as required for the installation and proper operation of the Customized
Product, in a detailed configuration to be mutually agreed upon by
AMDOCS and COMPANY and to be specified in an annex to the applicable
Order.
6.2 PLATFORM PURCHASE
COMPANY shall purchase through AMDOCS third party hardware and software
components comprising parts of the Platform; provided, however, that
AMDOCS shall not purchase such hardware and software without prior
written approval of COMPANY, and further provided that if COMPANY is
able to secure such hardware and software at a lower cost, COMPANY
shall have the option of making the purchase from the lower cost
provider. In the event that third party hardware and software
components are purchased through AMDOCS, AMDOCS will purchase
components through suppliers acceptable to COMPANY. Regardless of the
method of purchase, COMPANY shall retain title to all components
comprising the Platform.
6.3 PLATFORM WARRANTY AND MAINTENANCE
COMPANY acknowledges that the Platform warranty and maintenance are to
be supplied by the relevant manufacturers/vendors. All of the terms and
conditions governing the supply of such Platform, warranty and
maintenance shall be on such terms and conditions as agreed between
such manufacturers/vendors and COMPANY.
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7. PAYMENT
7.1 RATES AND RELATED PAYMENTS
7.1.1 Payment by COMPANY for all of AMDOCS' Licensed Products, Customization
Services and Support Services shall be as follows:
a) Licenses -- in accordance with Section 3.8;
b) Maintenance Services -- in accordance with Section 5.2.1
hereinabove; and
c) Customization Services and Support Services relating to the Licensed
Products to be used in the Territory-as specified in the applicable
Order, either on a fixed fee basis, or on a time and materials basis
in accordance with the rates specified in Section 1 of Exhibit A.
7.1.2 Unless otherwise specified in an applicable Order, COMPANY shall reimburse
AMDOCS for the travel and associated living expenses of AMDOCS' personnel
providing services relating to the Licensed Products to be used in the Territory
pursuant to this Agreement in accordance with the provisions of Sections 2 and 3
of Exhibit A to the extent that such expenses have been authorized in advance by
COMPANY.
7.2 INVOICING STANDARD
7.2.1 The License Fees and Maintenance Fee will be invoiced as provided for
hereinabove. Services provided by AMDOCS on a fixed fee basis will be invoiced
in accordance with the schedule contained in each applicable Order. Services
provided by AMDOCS on a time and materials basis will be invoiced in twelve (12)
invoices per year, each invoice to cover four (4) or five (5) whole weeks
("Billing Period").
7.2.2 At the end of each Billing Period, AMDOCS will submit to COMPANY an
invoice which will consist of the final amount due to AMDOCS for services
performed under this Agreement during the Billing Period. COMPANY will pay each
invoice submitted to it within sixty (60) days of its submission to COMPANY.
AMDOCS will issue invoices in U.S. dollars and all payments under this Agreement
will be made in U.S. dollars directly to AMDOCS' bank account (the details of
which will be provided in writing by AMDOCS to COMPANY).
7.3 PAYMENT IN ARREARS
Notwithstanding any other remedies available to AMDOCS under this
Agreement or under applicable law, payment in arrears shall bear
interest from the date invoice is received at the rate of two (2)
percent per annum above the prime rate of Chase Manhattan Bank as
quoted by the Wall Street Journal on the date of the applicable
invoice, unless the amount in arrears is disputed in good faith and
until such
25
dispute is resolved. However, the undisputed amounts shall be paid by
COMPANY without delay as aforesaid and, if AMDOCS' claim for payment of
the disputed amount in arrears is resolved in favor of AMDOCS, COMPANY
shall pay AMDOCS said interest as if such unpaid amount was not
disputed at all. Additionally, and without affecting the foregoing,
COMPANY's failure to pay any undisputed payment under this Agreement
within one-hundred and twenty (120) days after such payment becomes due
shall be considered a material breach of this Agreement by COMPANY.
7.4 PRICE PROTECTION
The rates, payments and charges referred to in Section 7.1 and other
charges set forth in this Agreement and the Orders attached hereto are
fixed for one year from January 1st of each year. Upon ninety (90)
days' prior written notice to COMPANY, said rates, fees and charges may
be changed once in any period of one year in accordance with the annual
percentage change (related to the twelve month period preceding such
increase) in the U.S. Consumer Price Index-All Urban Consumers, U.S.
City Average, as published by the Bureau of Labor Statistics, U.S.
Department of Labor (the "Index") plus five percent (5%). However, if
the annual percentage change in the Bureau of Labor Statistics, U.S.
Department of Labor for computer software professionals will increase
fifteen (15%) percent above the Index, the parties will discuss a
larger increase. If the parties cannot agree on such larger increase,
the matter shall be resolved in the manner provided for in Section 8.15
for the settlement of disputes.
7.5 TAXES
AMDOCS' rates, fees and other charges set forth in the Agreement do not
include value added tax, sales tax, consumption tax and similar taxes
or duties as well as any city, municipal, state or corporate taxes or
any withholding taxes, whether currently imposed or to be imposed in
future, other than taxes due upon AMDOCS' net income or the Washington
State business and occupation tax. If any such tax or duty is found to
be applicable, the appropriate amount of tax or duty shall be invoiced
to and paid by COMPANY to AMDOCS at the same time and on the same
conditions as applied to the payment due.
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8. GENERAL TERMS AND CONDITIONS
8.1 TERM OF THE AGREEMENT
This Agreement shall become effective as of the date of execution
hereof by both parties and shall continue for a period of eight (8)
years unless terminated by mutual written consent of both parties or
ended otherwise as provided for in this Agreement.
8.2 ORDERS
8.2.1 The procurement by COMPANY from AMDOCS of licenses to use the Licensed
Products and related Customized Products, Customization Services, Maintenance
Services or Support Services hereunder shall be done by the issuance and
acceptance of Orders. Each Order shall be deemed to incorporate (1) the terms
and conditions of this Agreement, to the extent applicable; (2) the DFS
applicable to such Order, if any; and (3) any relevant subordinate documents
attached to or referenced in such Order.
8.2.2 Subject to the provisions of Section 8.13, each Order and this Agreement
shall constitute the entire agreement between COMPANY and AMDOCS relating to a
particular Order. However, in case of any inconsistency or contradiction between
the provisions of this Agreement and the provisions of an Order, the provisions
of the Order will prevail as to the subject matter of such inconsistency. An
Order may not be modified or amended except as mutually agreed in writing by
COMPANY and AMDOCS.
8.2.3 Each Order shall include such specific provisions as agreed upon by the
parties and as required by the applicable Sections of this Agreement and its
Exhibits. The parties agree that special provisions may be necessary to provide
for specific conditions associated with the Customized Product, Support
Services, Customization Services or Maintenance Services, and that the required
special provisions that the parties agree upon shall pertain solely to the
Customized Product, Support Services, Customization Services or Maintenance
Services respectively covered by such Order(s).
8.2.4 In the event that an Order is not accepted or rejected by AMDOCS within
thirty (30) days of its receipt by AMDOCS, such Order will be deemed rejected.
AMDOCS may reject an Order if it is not reasonably feasible or practical for
AMDOCS to accept such Order as a result of the time schedule for performance of
such Order, the nature of the services requested by COMPANY or the fees
proposed, or if such Order is not consistent with the provisions of this
Agreement. An Order will be binding upon the parties only if executed, confirmed
or acknowledged in writing by both parties. Execution, confirmation or
acknowledgment in writing of an Order by both parties will bind both parties to
honor dates, amounts and other ordering information shown on the Order,
including supplemental provisions contained therein.
27
8.2.5 Order Nos. 1 and 2 are attached hereto as Appendices 1 and 2,
respectively. Such Orders are being accepted and executed by the parties
simultaneously with their execution of this Agreement.
8.3 INTELLECTUAL PROPERTY RIGHTS
8.3.1 COMPANY acknowledges AMDOCS' claim that copyright, trade secrets,
trademarks and any other intellectual property rights as the case may be,
subsists in the Ensemble, the Licensed Products, and that COMPANY shall have
neither copyright nor ownership or any such other intellectual property right in
the Ensemble, the Licensed Products and any enhancements thereto or derivatives
thereof (subject to Section 8.3.2 below). Notwithstanding the foregoing, COMPANY
shall retain all right, title and interest in and to all COMPANY Intellectual
Property Rights, and AMDOCS does not acquire any right, title or interest,
express or implied, in any COMPANY Intellectual Property Rights.
8.3.2 AMDOCS hereby assigns and will take all reasonable steps necessary to
assign its right, title and interest in and to the Customization to COMPANY.
Such Customization shall be deemed to be a work made for hire. Unless otherwise
specified in an Order, AMDOCS shall have no license or right to use, market,
sell, distribute or otherwise exploit any Customizations. AMDOCS shall have the
right to redevelop any part of the Customizations and to market, license, sell
and/or distribute such redevelopments to AMDOCS' customers.
8.4 TITLE
Title to the Licensed Products and any enhancements thereto or
derivatives thereof shall remain with and belong to AMDOCS and shall
not pass to COMPANY. COMPANY expressly acknowledges that its right to
use the Licensed Products and the Customized Product in accordance with
the terms of this Agreement, does not extend to, or encompass, title to
or ownership of such products, except as provided in Section 8.3.2.
8.5 CONFIDENTIALITY
8.5.1 The provisions of the Confidentiality Agreement between the parties dated
as of January 14, 1997, a copy of which is attached hereto as Exhibit B, shall
apply with regard to the performance of this Agreement by the parties hereto.
Such provisions shall survive the expiration of or termination of this Agreement
or any Order for any reason whatsoever. Any subcontractors of or other third
parties who have a need to know or may have access to AMDOCS' or COMPANY's
proprietary and confidential information shall first sign AMDOCS' or COMPANY's
non-disclosure agreement, as applicable, in the forms attached hereto as Exhibit
C, or a comparable document containing similar protections.
8.5.2 Prior to providing any third party with access to the source code of the
Customized
28
Product, COMPANY shall first inform AMDOCS of the identity of such third party.
In the event that AMDOCS determines that such third party is an AMDOCS
Competitor (as defined hereinafter in this Section 8.5.2), AMDOCS shall so
inform COMPANY and COMPANY shall not provide such third party with access to the
source code of the Licensed Products and/or the Customized Product. For purposes
of this Section 8.5.2, an "AMDOCS Competitor" is any third party that licenses
and/or develops customer care and/or billing systems for telecommunications.
8.6 ENTICEMENT OF STAFF
Each of the parties agrees not to hire or employ any of the other
party's employees or their respective subcontractors' employees who are
assigned full or part-time to activities which are part of the
performance of this Agreement, except by mutual written consent of such
other party, within two (2) years of such employee or subcontractor's
employee ceasing to be employed by his/her respective employer. The
provisions of this Section 8.6 shall survive the expiration or
termination of this Agreement or any Order for any reason whatsoever
and shall remain in full force and effect for a period of two years
thereafter.
8.7 WORK RULES AND ACCESS TO FACILITIES
8.7.1 Each party's respective employees or representatives who use the other
party's premises or facilities hereunder will be subject to the reasonable
restrictions imposed by the other party. Such employees or representatives will
comply with all reasonable rules applicable to the host COMPANY's employees.
8.7.2 Each party acknowledges that the performance by the other party of such
other party's obligations hereunder requires information and cooperation between
the parties. Without limitation to each party's rights under this Agreement,
each party shall provide complete, timely and accurate information regarding its
requirements and all other data and information necessary for the performance by
the other party of its obligations hereunder and under the applicable Orders.
8.7.3 COMPANY shall, from time to time as reasonably required by AMDOCS, furnish
AMDOCS' personnel required to be at COMPANY's premises, at no charge to AMDOCS,
with space suitable for AMDOCS' needs and the following services: computer
terminals and associated peripherals including access to E-mail/Internet; a
communication line from COMPANY's data center to AMDOCS' development center in
St. Louis, Missouri; reasonable use of facsimile machine and telephone for
business purposes related to this Agreement only; and supplies, equipment and
consumables, and reasonable secretarial services in English, at COMPANY's normal
standards. All internal communications of AMDOCS using COMPANY's
e-mail/telephone/facsimile systems will be private, confidential and proprietary
to AMDOCS, and will be subject to COMPANY's standard policies and procedures.
29
8.7.4 COMPANY shall grant the designated personnel of AMDOCS such access to the
premises and facilities of COMPANY as shall be reasonably necessary for the
performance of AMDOCS' obligations under this Agreement and the applicable
Orders.
8.7.5 AMDOCS shall indemnify, defend and hold harmless the COMPANY Indemnified
Parties (as defined in Section 8.18.1) harmless from and against all Claims (as
defined in Section 8.18.1) for personal injury or property damages resulting
from the wrongful or negligent acts of AMDOCS employees or agents (including
Authorized Subcontractors) while present at the premises and facilities of
COMPANY.
8.7.6 COMPANY is aware that it is required to have the necessary computer
equipment at its premises immediately upon the commencement of the provision of
services hereunder. COMPANY shall, therefore, obtain such computer systems and
provide AMDOCS upon the commencement of the Customization Services with
reasonable access to such equipment for the sole purpose of providing services
hereunder.
8.8 NO WAIVER
No waiver of any rights arising under this Agreement shall be effective
unless in writing and signed by the party against whom such waiver is
sought to be enforced. No failure or delay by either party in
exercising any right, power or remedy under this Agreement shall
operate as a waiver of any such right, power or remedy and/or prejudice
its rights to bring any action in respect thereof.
8.9 LIABILITY
8.9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CLAIMS IN RESPECT OF OR
ARISING OUT OF THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS,
REVENUE, DATA, OR USE), INCURRED BY THE OTHER PARTY OR BY ANY THIRD PARTY
WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THAT PARTY OR ANY OTHER PERSON
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.9.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOLE LIABILITY OF
AMDOCS IN CASE OF ANY LOSS OR DAMAGE RESULTING FROM ANY ERROR OR DEFECT IN THE
LICENSED PRODUCT(S) OR THE CUSTOMIZED PRODUCTS OR FROM THE SERVICES PROVIDED BY
AMDOCS HEREUNDER THAT CAUSE ERRORS OR DEFECTS, WILL BE TO CORRECT, AS SOON AS IS
REASONABLY POSSIBLE, SUCH ERROR OR DEFECT IN ACCORDANCE WITH AMDOCS' WARRANTY OR
MAINTENANCE OBLIGATIONS. IN THE EVENT OF AN ERROR OR DEFECT THAT RENDERS THE
LICENSED PRODUCT(S) OR CUSTOMIZED PRODUCTS INOPERATIVE OR HAS A MATERIAL ADVERSE
EFFECT ON THE FUNCTIONING OF SUCH
30
PRODUCT(S), AMDOCS SHALL, AS SOON AS REASONABLY POSSIBLE, COMMENCE DIAGNOSTIC
AND CORRECTIVE MEASURES, AND TAKE SUCH REMEDIAL MEASURES (INCLUDING, BUT NOT
LIMITED TO, TEMPORARY FIXES, EMERGENCY BYPASSES AND/OR WORKAROUNDS) AS MAY BE
REQUIRED TO CORRECT SUCH ERROR OR DEFECT, TO RENDER THE PRODUCT(S) OPERATIVE,
AND/OR TO ELIMINATE SUCH MATERIAL ADVERSE EFFECT.
8.9.3 COMPANY SHALL HOLD AMDOCS HARMLESS IN CASE OF ANY SUIT OR CLAIM BY ANY
THIRD PARTY ARISING FROM SPECIFICATIONS OR INSTRUCTIONS GIVEN BY COMPANY TO
AMDOCS RELATING TO THE CUSTOMIZATIONS.
8.9.4 EXCEPT FOR AMDOCS' LIABILITY UNDER SECTIONS 8.7, 8.14 AND 8.18, AMDOCS'
LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT AND ANY ORDER HEREUNDER FOR
ANY CAUSE(S) WHATSOEVER SHALL NOT EXCEED ONE AND ONE-HALF MILLION DOLLARS
($1,500,000) PER SINGLE EVENT OR FIVE MILLION DOLLARS ($5,000,000) IN THE
AGGREGATE, EXCEPT AS OTHERWISE SPECIFIED IN AN ORDER.
8.10 CONFLICT OF INTEREST
AMDOCS represents and warrants that no officer, employee or agent of
COMPANY has been or will be employed, retained, paid a fee, or
otherwise has received or will receive any personal compensation or
consideration, by or from AMDOCS, or any of AMDOCS' officers, employees
or agents, in connection with obtaining, arranging or negotiating this
Agreement or other documents entered into, or executed in connection
herewith.
8.11 FORCE MAJEURE
Each party will be excused for any delay in its performance resulting
from causes beyond its control which were not reasonably foreseeable on
the date of signing this Agreement including Acts of God, war, riot,
civil disorder, embargo, acts of authorities, fire, earthquake or flood
and only to the extent such event actually delays such performance. The
party so delayed must notify the other party of the occurrence and
cessation of such an event to be able to rely upon the terms of this
Section 8.11, unless the event itself prevents notice of occurrence
being given, in which case it shall be given as soon as reasonably
practicable. In no event, however, shall performance hereunder by
either party be excused under this Section for a period in excess of
three (3) months.
8.12 SEVERABILITY
If any provision of this Agreement is determined to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the
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entire Agreement, but rather the entire Agreement shall be construed as
if not containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of AMDOCS and COMPANY shall
be construed and enforced accordingly. In addition, the parties hereby
agree to cooperate with each other to replace the invalid or
unenforceable provision with a valid and enforceable one which will
achieve the same economic result (to the maximum legal extent) as the
provision determined to be invalid or unenforceable.
8.13 ENTIRE AGREEMENT AND CHANGES
With the exception of the Confidentiality Agreement referred to in
Section 8.5, the terms and conditions contained in this Agreement and
in any Orders issued and accepted hereunder constitute the entire
agreement between COMPANY and AMDOCS with respect to the subject matter
hereof and supersede all prior oral and written quotations,
communications, representations, agreements and understandings of the
parties with respect to the subject matter hereof. This Agreement may
not be altered, amended or modified except by a written instrument
signed by a duly authorized representative of each party. Any
pre-printed terms that may appear on any of AMDOCS' documents or any of
COMPANY's documents which add to, vary from or conflict with the
provisions of this Agreement shall be void.
8.14 TERMINATION
8.14.1 Either party may suspend performance and/or terminate this Agreement
immediately upon written notice at any time if:
(i) The other party shall file a petition seeking relief for itself
under the bankruptcy laws of any jurisdiction;
(ii) An order for relief shall be entered against the other party
under the bankruptcy laws of any jurisdiction, which order is not
stayed; or upon the expiration of sixty (60) days after the
filing of any involuntary bankruptcy petition against it without
the petition being dismissed prior to that time; or
(iii) The other party shall (a) make a general assignment for the
benefit of its creditors; or (b) consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
or custodian of all or a substantial part of its property; or (c)
admit its insolvency or inability to pay its debts generally as
they become due; or (d) fail generally to pay its debts as they
become due; or (e) take any action (or suffer any action to be
taken by its director or shareholders) looking to its dissolution
or liquidation.
8.14.2 COMPANY may terminate for convenience any Order prior to Acceptance, or
any
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Support Services Order or Maintenance Order, upon thirty (30) days prior
written notice to AMDOCS. COMPANY shall pay to AMDOCS within thirty (30) days
following the effective date of such termination: (i) in the case of fixed price
Orders, the amounts due and payable under the payment installment immediately
following the date of notice of the termination, provided such notice is
received at least thirty (30) days prior to such payment installment, and (ii)
in the case of time and material Orders, all amounts due to AMDOCS under the
terminated Order until the effective date of such termination, plus, in the case
of this sub-Section (ii), a fee in an amount equal to the fees charged by AMDOCS
to COMPANY for such personnel during the month prior to termination.
8.14.3 COMPANY may, prior to Acceptance of a License or Customization Services
Order, or at any time for a Maintenance Services or Support Services Order,
provide notice of breach to AMDOCS if COMPANY reasonably determines that AMDOCS
has committed a material breach of an Order. Within fifteen days of receipt of
such notice, AMDOCS shall notify COMPANY in writing whether AMDOCS acknowledges
or disputes the occurrence of such material breach.
8.14.3.1 If AMDOCS provides notice to COMPANY acknowledging the occurrence of
such material breach and fails to cure the breach within thirty (30) days
thereafter, then COMPANY shall be entitled to Terminate the applicable Order.
8.14.3.2 If AMDOCS provides notice to COMPANY disputing the occurrence of such
material breach, then COMPANY shall be entitled to proceed with arbitration in
accordance with the provisions of Section 8.15.3. In the event that there is an
arbitral decision that AMDOCS has materially breached its obligations under the
applicable Order, and AMDOCS does not cure such breach within thirty (30) days
of the date of the arbitral decision, then COMPANY shall be entitled to
Terminate the applicable Order, without limiting any other rights and remedies
of COMPANY under this Agreement.
8.14.4 Upon Termination for breach, the following provisions will apply:
a) Each party shall return to the other party any information in
tangible form obtained in connection with the relevant Terminated
Order from the other party;
b) AMDOCS shall immediately cease performing work and incurring
costs in connection with the relevant Terminated Order;
c) COMPANY's licenses under the relevant Terminated Order will be
deemed immediately terminated;
(d) Within thirty (30) days of Termination, AMDOCS will return to
COMPANY all License Fees actually received by AMDOCS for said
terminated licenses; and
33
(e) in the event that the Termination for breach consisted of AMDOCS'
decision to cease work on any Order, then AMDOCS shall return to
COMPANY all fees actually received by AMDOCS for licenses,
services, and hardware under such Order within thirty (30) days
of Termination.
8.14.5 Upon Termination for breach, COMPANY may exercise such remedies against
AMDOCS as are available under this Agreement, only, with no other remedies
available.
8.15 GOVERNING LAW, ESCALATION PROCEDURE AND ARBITRATION
8.15.1 The validity, performance, construction and effect of this Agreement
shall be governed by the laws of the State of Washington, without giving effect
to its choice-of-law rules.
8.15.2 COMPANY and AMDOCS will endeavor to resolve any controversy or claim
arising out of or relating to this Agreement or an Order through good faith
negotiations, as follows: If such a controversy or claim should arise, the
Project Managers of COMPANY and AMDOCS will attempt to resolve the matter within
nine (9) days of the matter being referred to them, or any other period agreed
upon by the parties; if the matter is not resolved by the project managers, it
will be referred to the head of COMPANY's IT Department and AMDOCS' Vice
President responsible for COMPANY; if the matter is not resolved by those
persons within nine (9) days of the matter being referred to them, or any other
period agreed upon by the parties, the matter will be referred to COMPANY's
President and AMDOCS' President for Customer Care and Billing Division
responsible for COMPANY/Senior Vice President. In the highly unlikely event that
those persons are unable to resolve the matter within nine (9) days of the
matter being referred to them, or any other period agreed upon, such matter will
be resolved exclusively by arbitration as provided in Section 8.15.3.
8.15.3 Any controversy or claim, whether based on contract, tort or other legal
theory (including, but not limited to, any claim of fraud or misrepresentation),
arising out or relating to this Agreement, including its interpretation,
performance, breach of or termination not resolved by good faith negotiations,
as provided in Section 8.15.2, shall be resolved exclusively by arbitration in
accordance with the following provisions:
a) The arbitration will be conducted in New York, New York by a sole
arbitrator ("Arbitrator") in accordance with the rules of the
American Arbitration Association (the "Rules"). The Arbitrator
shall be appointed by agreement of the parties; in the event that
the parties fail to agree upon the appointment of the Arbitrator
within thirty (30) days after a notice of arbitration is given by
either party to the other, then the Arbitrator shall be selected
and appointed in accordance with the Rules. The arbitration will
be governed by the United States Arbitration Act, 9 U.S.C.
Section 1, et seq.
34
b) Prior to his appointment, the Arbitrator shall be made aware of
the terms of this Agreement and the relevant Order(s). The
Arbitrator will be bound by the provisions of this Agreement
including, but not limited to, the provisions of Section 3.5
(Warranty), Section 8.9 (Liability) and Section 8.14
(Termination). Prior to his appointment, selected Arbitrator
shall be made aware of the terms of this Agreement and the
relevant Order(s). Following his appointment, the Arbitrator
shall set forth the schedule and timing of the arbitration
proceedings.
c) The Arbitrator shall have the right to assess the costs incurred
by either party against the losing party or in such manner as he
deems just. That award rendered by such Arbitrator shall be final
and binding.
d) Upon rendering an award or a decision, the Arbitrator shall set
forth in writing the basis of such award or decision.
Notwithstanding anything to the contrary, each party retains the
right to request that a court of competent jurisdiction vacate
the Arbitrator's award or decision on the grounds of the
Arbitrator's failure to abide by the provisions of this Agreement
or any applicable Order.
e) Judgment on the award or any other final or interim decision
rendered by the Arbitrator may be entered, registered or filed
for enforcement purposes in any court having jurisdiction
thereof.
8.16 INDEPENDENT CONTRACTOR
AMDOCS undertakes the furnishing of services and performance of its
obligations under this Agreement as an independent contractor. AMDOCS'
personnel participating in the performance of this Agreement shall
remain AMDOCS' employees. There shall be no employer-employee
relationship between AMDOCS' employees and COMPANY, and COMPANY's
employees and AMDOCS.
8.17 ASSIGNMENT AND SUBCONTRACTS
8.17.1 Any assignment, sub-contract or other transfer of a party's rights or
obligations under this Agreement or under any Order issued hereunder requires
the prior written consent of the other party. Prior to any such assignments, the
assignee will be obliged to sign an undertaking to comply with all obligations
under this Agreement and the applicable Orders. Any attempted assignment not
complied with in the manner prescribed herein shall be null and void.
8.17.2 Notwithstanding the above, COMPANY may assign its rights and obligations
hereunder to (1) any corporation resulting from any merger or other
reorganization to which COMPANY is a party, (2) any corporation, partnership,
association, or other person or entity to which COMPANY may transfer all or
substantially all of its assets or
35
business existing at such time, or (3) any COMPANY Affiliate Prior to any such
assignment, the assignee will be obliged to sign an undertaking to comply with
all obligations under this Agreement and the applicable Orders. Any attempted
assignment not complied with in the manner prescribed herein shall be null and
void. The entities referenced in sub-Sections 8.17.2(1) and 8.17.2(2) above are
referred to as "Successors"
8.17.3 AMDOCS' performance of this Agreement may involve participation of
sub-contractors. Thus, notwithstanding the above, the parties agree that AMDOCS
may subcontract any of the services to be provided by AMDOCS hereunder to any of
AMDOCS' Affiliates and/or to specialist subcontractors (all referred to in this
Agreement as the "Authorized Subcontractors"), however:
a) AMDOCS shall be responsible for the performance (or
non-performance, as the case may be) of any part of this
Agreement and any Order issued hereunder by the Authorized
Subcontractors to which such part was assigned or subcontracted;
b) the participation of the Authorized Subcontractors shall not
affect any liability imposed on AMDOCS under this Agreement;
c) AMDOCS' obligations under this Agreement and the Orders issued
hereunder shall remain in full force and effect despite any act
or omission of the Authorized Subcontractors; and
d) Specialist subcontractors shall not be assigned by AMDOCS to
COMPANY's facilities without the prior written consent of
COMPANY.
The applicable terms of this Agreement (including, without limitation,
those referred to in Section 8.19) shall also apply to the Authorized
Subcontractors. The parties agree that the Authorized Subcontractors
will require access to the premises and facilities of COMPANY for their
participation in the performance of this Agreement and the Orders
issued hereunder, and that if so requested by AMDOCS, COMPANY shall
deal with the personnel of the Authorized Subcontractors and with any
reasonable requests of the Authorized Subcontractors, in all respects,
as if such personnel were the personnel, and such requests were the
requests, of AMDOCS.
8.17.4 Subject to Section 8.5, Company may utilize employees or third party
consultants or contractors to perform modifications, enhancements, or
adjustments to the Licensed Products or Customized Products in a manner similar
to those provided by AMDOCS or an AMDOCS assignee.
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8.18 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
8.18.1 AMDOCS agrees to indemnify, defend and hold harmless COMPANY and its
subsidiaries, affiliates, directors, officers, employees, agents and independent
contractors (collectively, the "COMPANY Indemnified Parties") from and against
from any and all actions, causes of action, claims, demands, costs, liabilities,
expenses and damages, including costs and reasonable attorneys' fees
(collectively, "Claims") by a third party alleging that its Intellectual
Property Rights have been infringed by COMPANY in the normal use or installation
of the Licensed Products, the Customized Products or the Customizations pursuant
to this Agreement; provided, however, that (i) AMDOCS is promptly notified in
writing of such claim, (ii) AMDOCS shall have the sole control of the defense
and/or settlement thereof, (iii) COMPANY furnishes to AMDOCS on request all
information reasonably available to COMPANY for such defense, and (iv) COMPANY
will not admit any such claim and/or make any payments with respect to such
claim without the prior written consent of AMDOCS, such consent not to be
unreasonably withheld or delayed.
8.18.2 The above indemnity shall not apply to Claims arising from or in
connection with: (1) modifications made by COMPANY, (2) the instructions,
specifications or requirements supplied by COMPANY for the Customized Product or
any services to be provided by AMDOCS, or (3) COMPANY's combination of the
Licensed Products or the Customized Product with other products not supplied by
AMDOCS.
8.18.3 If any injunction or order is obtained against COMPANY's use of the
Customized Product, AMDOCS, at its sole discretion and expense, and without
limiting its other obligations and liabilities hereunder or under any Order,
may:
(a) procure for COMPANY the right to continue using the Customized
Product; or
(b) replace or modify the Customized Product to make them
substantially similar, functionality equivalent, non-infringing
Customized Product.
8.19 SURVIVAL OF OBLIGATIONS
Obligations under this Agreement or any Order, which by their nature
would continue beyond the Termination, expiration or ending in any
other way of this Agreement or any Order, including by way of
illustration only and not limited to, those in the Sections entitled
Liability, Confidentiality and Warranty, shall survive the Termination,
expiration or ending in any other way of this Agreement or any Order.
8.20 HEADINGS NOT CONTROLLING
The headings of the Sections of this Agreement are inserted for
convenience only and are not intended to affect the meaning or
interpretation of this Agreement.
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8.21 NOTICES
8.21.1 Any notice, demand or communication which under the terms of this
Agreement or otherwise must or may be given or made by AMDOCS or COMPANY shall
be in writing and shall be given or made by any delivery (courier) services
requiring signature of receipt or fax addressed or transmitted, as the case may
be, to the respective parties as follows:
To: COMPANY To: AMDOCS
3650 131st Avenue SE, AMDOCS (UK) Limited
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇-▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Tel: Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, CIO Attention:
CC: Legal Department
Such notice, demand or other communications shall be deemed to have
been given on the date confirmed as the actual date of delivery by the
delivery service if sent by such service, or if sent by fax, on the
next working day after transmission and receipt by the sender of a
confirmation of transmission showing successful completion of the
transmission. Notice sent by fax must also be confirmed by sending
notice by delivery (courier) service (but shall be deemed to have been
given on the next working day after transmission by fax and receipt by
the sender of a confirmation of transmission showing successful
completion of the transmission).
The above addresses or fax numbers may be changed at any time by giving
fifteen (15) days' prior written notice as provided above.
8.22 SUCCESSORS AND ASSIGNEES
This Agreement shall be binding upon and inure to the benefit of the
parties hereof and to their permitted successors and assignees.
8.23 NO THIRD PARTY BENEFICIARIES
There are no third party beneficiaries to this Agreement, and nothing
herein contained shall be deemed to confer any right whatsoever in
favor of any party other than the direct parties hereto.
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8.24 AUTHORITY
Each party has full power and authority to enter into and perform this
Agreement and the person signing this Agreement on behalf of each party
has been properly authorized and empowered to enter into this
Agreement. Each party further acknowledges that it has read this
Agreement, understands it and agrees to be bound by it.
8.25 EXECUTION OF THE AGREEMENT
In the event that this Agreement is not signed simultaneously by both
parties, the Agreement will, unless otherwise agreed in writing, become
null and void if the party who is the second signatory of this
Agreement does not sign it and submit a signed copy to the party that
signed it first within forty-five (45) days of the date on which the
first party signed this Agreement. This Agreement may be executed in
duplicate counterparts and both together will constitute one and the
same document.
IN WITNESS WHEREOF, COMPANY and AMDOCS, pursuant to due corporate authority,
have caused this Agreement to be signed in their respective names on the date(s)
set forth below.
ACCEPTED: ACCEPTED:
WESTERN WIRELESS CORPORATION AMDOCS (UK) LIMITED
("COMPANY") ("AMDOCS")
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ Simon Cassif
-------------------------------- ----------------------------------
(Signature) (Signature)
Title: President Title: President
----------------------------- -------------------------------
(Typed or Printed) (Typed or Printed)
Date: September 17, 1999 Date: October 1, 1999
------------------------------ --------------------------------