EXHIBIT 10.35
SYSTEM EQUIPMENT PURCHASE AGREEMENT
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This System Equipment Purchase Agreement is made and is effective as of the
28/th/ day of August, 2000 (the "Effective Date"), by and between Cricket
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Communications, Inc. a Delaware corporation (the "Owner"), and Nortel Networks
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Inc., a Delaware corporation (the "Vendor").
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RECITALS:
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A. WHEREAS, Owner desires to purchase PCS systems pursuant to this
Contract; and
B. WHEREAS, Vendor desires to provide such PCS systems to Owner, as
described in Exhibit A02, including, but not limited to, Vendor's obligation to
manufacture, engineer, equip, integrate, install, test and provide technical
assistance for said PCS systems in accordance with the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth in this Contract, Owner and Vendor hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions. In addition to the terms listed below, certain
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additional terms are defined elsewhere in this System Equipment Purchase
Agreement and in the Exhibits, and all definitions are subject to the provisions
of subsection 1.2 hereof. As used in this Contract, the following terms have the
following meanings:
"Affiliate" means any entity that either (i) is listed as an Affiliate in
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Exhibit V; or (ii) that, subject to the evaluation criteria listed below, Vendor
has consented to add as an Affiliate; or (iii) is greater than fifty percent
(50%) owned, either directly or indirectly, by Owner or is greater than fifty
percent owned directly or indirectly by a parent company of Owner that maintains
a greater than fifty percent (50%) direct or indirect ownership in Owner;
provided that, Vendor will have a reasonable opportunity to review and approve
any proposed Affiliate under (ii) (such approval not to be unreasonably
withheld) based upon: (a) reasonable credit criteria; (b) whether the proposed
Affiliate has not in the past materially breached prior agreements with the
Vendor or its affiliates; (c) whether the proposed Affiliate is, at the time of
such determination, neither a direct or indirect competitor of the Vendor or its
affiliates nor owned, in whole or in part, by a direct or indirect competitor of
Vendor; and (d) whether the proposed Affiliate is not, at the time of such
determination, otherwise engaged with the Vendor or its affiliates in an
agreement for the purchase and/or supply of wireless technology. In the event
an Affiliate no longer meets the criteria set forth in subsections (ii) or (iii)
herein, as applicable, Vendor may, at its discretion, terminate any and all of
CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
such Affiliate's rights under this Contract; provided that, Vendor has provided
Owner ten (10) day advance written notice of its intent to terminate such
Affiliate's rights.
"Applicable Laws" means, as to any Person, the certificate of incorporation
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and by-laws or other organizational or governing documents of such Person, all
U.S. or foreign laws, treaties, ordinances, judgments, decrees, injunctions,
writs, orders and stipulations of any court, arbitrator or governmental agency
or authority and statutes, rules, regulations, orders and interpretations
thereof of any federal, state, provincial, county, municipal, regional,
environmental or other Governmental Entity, instrumentality, agency, authority,
court or other body (i) applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject or (ii)
having jurisdiction over all or any part of a System or the Work to be performed
pursuant to the terms of this Contract.
"Applicable Permits" means any waiver, exemption, zoning, building,
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variance, franchise, permit, authorization, approval, license or similar order
of or from any country, federal, state, provincial, county, municipal, regional,
environmental or other Governmental Entity, instrumentality, agency, authority,
court or other body having jurisdiction over all or any part of a System or the
Work to be performed pursuant to the terms of this Contract.
"Backwards Compatible" or "Backwards Compatibility" means (i) with respect
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to new Software Maintenance Releases, Software Upgrades, Software Combined
Releases and Software Enhancements, the ability of each of the [*] prior older
versions of Software to remain fully functional in accordance with and up to the
performance levels to which each was performing immediately prior to the
integration with the new Software Maintenance Release, Software Upgrade,
Software Combined Releases and/or Software Enhancement, and the ability of such
new Software Maintenance Release, Software Upgrade, Software Combined Release
and/or Software Enhancement to interoperate and be compatible with all such
functionality of such prior Software versions and with all existing in-service
Vendor provided Products already installed in the System; (ii) with respect to
all Equipment Upgrades, and Equipment Combined Releases to the extent of that
portion of the Equipment Combined Release which is the Equipment Upgrade or the
use of which by Owner is not optional without losing the benefit of the
Equipment Upgrade (for purposes of this Contract, a "New Equipment Release"
means collectively the Equipment Upgrade and such non-optional portion of the
Equipment Combined Release), the ability of the existing infrastructure to
remain fully functional in accordance with and up to the performance levels to
which it was performing immediately prior to the integration with the New
Equipment Release, and the ability of the New Equipment Release to interoperate
and be fully compatible with all such functionality of such existing
infrastructure and (iii) with respect to each of Software Combined Releases (but
only to that portion of such Software Combined Release that is considered a
Software Upgrade), Software Maintenance Releases, Software Upgrades, and New
Equipment Releases, the ability of such Products to comply with the existing
interfaces to other third party equipment already deployed in the System and
with respect to which Vendor is already in compliance prior to the introduction
of the Software
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Combined Release (but only to that portion of such Software Combined Release
that is considered a Software Upgrade), Software Maintenance Releases, Software
Upgrades, and New Equipment Releases.
"Base Station ("BTS")" means the radio Products that handle PCS radio
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traffic in a designated cell. The Base Station includes all amplification,
modulation, synchronization and other circuitry required to process a radio
signal.
"Base Station Controller ("BSC")" means the controller Products that
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control the radio/cellsite equipment.
"beta testing" means pre-launch testing conducted by Owner in respect of
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which no payment from customers is made to Owner for the services provided in
connection therewith.
"Business Day" means any day of the year other than a Saturday, Sunday or a
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United States Federal holiday.
"Capacity Guarantee" is defined in Section 14.2.7.
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"Certificate of Final Acceptance" is defined in subsection 10.1(f).
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"Certificate of Substantial Completion" is defined in subsection 10.1(d).
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"Change Orders" is defined in subsection 11.1.
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"Claim" is defined in subsection 15.2.
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"Claim Notice" is defined in subsection 15.2.
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"Compliance Warranty" is defined in Section 8.3.
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"Contract" means this System Equipment Purchase Agreement, together with
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all Exhibits, Schedules and Specifications hereto, together with all amendments,
modifications and supplements.
"Contract Term" means the period commencing on the Effective Date and
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ending three (3) years therefrom, unless terminated earlier in accordance with
the terms and conditions hereof, or unless extended by the mutual written
consent of the parties hereto.
"Defects and Deficiencies", "Defects or Deficiencies" or "Defective" means
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any one or a combination of the following items or other items of a
substantially similar nature:
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(a) when used with respect to the performance of Services, that such
Services are not provided in a careful and workmanlike manner and in
accordance with the Specifications, using material which is free from
defects;
(b) when used with respect to structures, materials or Products, that
such items (i) are not new and of good quality and free from defects in
materials and workmanship, or (ii) do not conform to the Specifications, or
(iii) with respect to Software, that such Software does not provide the
functions and features described in the Specifications; provided, however,
that with respect to materials and Products that are replaced or repaired
in accordance with any warranty or maintenance provisions of this Contract,
such items may be like-new, refurbished, remanufactured or reconditioned;
or
(c) with respect to all other Work, that the same (i) are not free of
defects in workmanship and materials, or (ii) do not conform to the
Specifications.
"Discontinued Products" is defined in subsection 12.1.
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"Documentation" means the Operating Manuals, the Maintenance and
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Instruction Manuals, the Training Manuals, the "as-built" Site parameters and
all other documentation necessary for the operation of the System, any
Expansions and/or any material part thereof.
"Dollars" or "U.S. $" or "$" means the lawful currency of the United
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States of America.
"EFT" is defined in Section 5.6.
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"Equipment" means all equipment, hardware and other items of personal
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property (including, without limitation, any Documentation furnished hereunder
in respect thereof) which are required to be furnished by Vendor in accordance
with the terms and conditions of this Contract, including repair and replacement
parts.
"Equipment Combined Release" is defined in subsection 14.2.1.
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"Equipment Enhancements" means modifications or improvements made to
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the Equipment that improve the performance, capacity and capability of such
Equipment. An Equipment Enhancement may include an Equipment Upgrade.
"Equipment Upgrade" means a change or modification in any delivered
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Equipment which fixes or otherwise corrects faults, design shortcomings or
shortcomings in meeting the Specifications, required to correct defects of a
type that result in inoperative conditions, unsatisfactory operating conditions,
or which is recommended to enhance safety.
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"Expansions" means any additional Products ordered by Owner from Vendor,
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which may include growth to existing Systems and additional Products, Services
and Systems.
"FCC" means the Federal Communications Commission.
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"Final Acceptance" means, with respect to any System, date Owner signs the
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Certificate of Final Acceptance.
"Fit" means physical size or mounting arrangement (for example, electrical
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or mechanical connections).
"Force Majeure" is defined in Section 17.
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"Form" means physical shape.
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"Function" means Product features and performance, or with respect to other
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items, the features and performance of such items.
"Governmental Entity" means the United States federal government or any
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state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranteed Substantial Completion Date" means, with respect to a System,
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the date by which Substantial Completion must be achieved by Vendor. The
Guaranteed Substantial Completion Date is determined based on the Site that is
identified by Owner in writing to be the last Site to be included in the
definition of such System (the "Last Site"). Owner agrees to provide Vendor with
a rolling sixty (60) day forecast for the Sites to be included in each System,
and Owner further agrees to provide weekly progress reports of Owner's site
acquisition activities for each Site related to such System. In the event the
Purchase Order(s) issued for construction of such Sites by Vendor exceeds the
aforementioned forecasted amount by more than twenty percent (20%), Vendor shall
be granted an equitable extension of the applicable Guaranteed Substantial
Completion Date. In the event Owner materially impedes Vendor's ability to
complete the build out of such System in accordance with the applicable project
schedule, Vendor may, at its discretion, issue an invoice and require Owner to
pay, in accordance with Section 5.3(b), the balance of 100% of the price of such
related Products and Services provided by Vendor; provided that, Vendor provided
notice to Owner of such impedance and Owner failed to commence to cure such
impedance within ten (10) days from Vendor's notice thereof. If Owner has issued
Purchase Orders related to a System that require: (i) Vendor to perform Site
Construction Services for certain of the Sites of such System, and (ii) Owner to
perform Site Construction activities for certain of the Sites of such System,
the Guaranteed Substantial Completion Date shall be sixty (60) days from the
date of the Last Site Purchase Order as provided for above.
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If Owner has performed the Site Construction activities with respect
to the Last Site, the Guaranteed Substantial Completion Date shall be the date
which is thirty (30) calendar days after the date Owner issues a Site
Construction Substantial Completion Certificate with respect to the Last Site to
Vendor; provided that in all of the foregoing circumstances, the Guaranteed
Substantial Completion Date shall be delayed to a date mutually acceptable to
Vendor and Owner, acting reasonably, in the event that:
i. Owner has not satisfied its obligations, if any, for Site Construction
for the installation of the Switch by at least twelve (12) weeks prior
to the Guaranteed Substantial Completion Date (in this case the
parties agree that the period of delay shall be equal to the number of
days that Owner's Site Construction obligations, if any, are delayed
beyond such date which is twelve (12) weeks prior to the Guaranteed
Substantial Completion Date); or
ii. Owner has not satisfied its obligation(s) with regard to Site
Construction for each applicable Site by the date that has been agreed
upon for completion of such obligations, and the parties agree that in
such event the period of delay shall be equal to the number of days
that Owner's Site Construction obligations are so delayed; or
iii. extreme weather and other unusual environmental conditions beyond
Vendor's reasonable control delays Vendor's completion of Substantial
Completion activities (in this case the parties agree that the period
of delay shall be equal to the period of time associated with the
duration of such extreme or unusual condition(s)); or
iv. Vendor is not provided with all necessary and reasonable access to the
System and each Site; or
v. at the time Owner identifies the Last Site, more than 10% of the total
number of Sites for the System are also identified contemporaneously
therewith; or
vi. Owner fails to act in good faith to timely issue applicable Purchase
Orders related to the System (i.e., for each Site) upon completion of
Owner's Site Acquisition and other activities related to each such
Site.
Owner shall also involve Vendor through all stages of the Site Acquisition
process. In all cases, Owner shall be responsible for the provisioning of
backhaul facilities required at all Sites. Such provisioning must be completed
prior to the start of equipment integration by Vendor at each site.
In the event Owner elects to issue Purchase Orders for Vendor to perform Site
Acquisition Services as described in Exhibit H, Owner and Vendor shall mutually
agree upon a reasonable Guaranteed Substantial Completion Date.
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"Hazardous Materials" means material designated as a "hazardous chemical
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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 Communication
Standard (29 CFR 1910.1200).
"In Revenue Service" or "In Revenue" means, with respect to a System, the
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commercial operation of such System, exclusive of operation for purposes of
determining compliance with this Contract or beta testing, whether or not
revenue is actually being generated.
"Initial Period" is defined in Section 10.1(f).
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"Initial Software Features" means those software features contained in
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Vendor's standard base generic software releases together with those additional
optional software features listed in Exhibit Q.
"Installation and Integration" is defined in Exhibits L and O.
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"Intellectual Property Rights" is defined in subsection 15.2.
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"Interoperability" means the ability of the Products to operate with other
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Products and to operate with and within a System, all in accordance with the
Specifications.
"Liquidated Damages" is defined in subsection 16.1.
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"List Price" means the list prices specified in Exhibits A01 - A10 as may
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be amended from time to time.
"Losses" means any claims, demands, suits, proceedings, causes of action,
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damages, costs, expenses, liabilities, reasonable attorneys' fees, and amounts
paid in settlement.
"Major Outage" means the cessation of operation of a System or System
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Element caused by a Defect or Deficiency of the Products, excluding OEM
Equipment (except MSC power equipment provided hereunder), attributable solely
to Vendor or Vendor's failure to timely restore the operation of the System or
System Element affected by the Major Outage in accordance with the
Specifications that has a material adverse impact on Owner's ability to operate
or maintain such System, render ▇▇▇▇▇▇▇▇ to Owner's subscribers, or that causes
a material interruption in Owner's ability to continue to furnish or offer
service functionalities and features to such subscribers. Except that on
determining if the Defect or Deficiency is attributable solely to Vendor, any
act or omission by Owner or any third party shall be disregarded if such act or
omission, pursuant to the Specifications, should not have resulted in a material
adverse effect on the System or System Element.
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In addition, the following capacity and/or coverage impairment conditions shall
be considered a "Major Outage":
(i) Any impairment caused by a Defect or Deficiency attributable
solely to Vendor that has the effect of reducing by greater than [*]
the number of traffic channel resources available in the System for
access by Owner's subscribers for a period of [*] or more; provided
that, at least [*] or more BTS's have failed causing such loss of
coverage; and/or
(ii) Any impairment caused by a Defect or Deficiency
attributable solely to Vendor that has the effect of rendering greater
than [*] of the equipped antenna sectors in the System unable to
process origination, termination or hand-off requests; or that reduces
the forward channel power of more than [*] of the equipped sectors in
the System by greater than [*]; and/or
(iii) The persistent occurrences of an impairment referenced in
paragraphs (i) or (ii) above which, although each occurrence falls
below the [*] threshold, each occurrence exceeds a threshold of
greater than [*] of the applicable metric set forth above, and the
total number of such occurrences is greater than [*] events during the
Initial Period; and/or
(iv) Notwithstanding the foregoing, the Vendor will have no
liability pursuant to Major Outage for:
1. Outages caused by a Force Majeure event other than to
the extent the System or System Element should have, in
accordance with the Specifications, been able to
withstand any such Force Majeure event;
2. Outages resulting from a scheduled activity or event,
including, but not limited to, System maintenance or
Software or Equipment Upgrades, unless such Outage
extends beyond the expected downtime, as provided in the
Specifications applicable thereto, associated with such
maintenance or Upgrades;
3. Outages resulting solely from Owner's or any third
party's (other than Vendor or any Subcontractor) failure
to comply with the Specifications;
4. Outages resulting from the negligence or willful
misconduct of the Owner, or any of its employees,
agents,
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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contractors, or third parties, other than Vendor
or any Subcontractor;
5. Outages resulting from failure of equipment or software
not supplied by the Vendor or from the performance of
services not performed by the Vendor or its
Subcontractors, except to the extent the System or
Systems Element should have, in accordance with the
Specifications, been able to withstand any such
failures; or
6. Outages attributable solely to the effect of Exclusion
Zone(s) as described in Exhibit N.
provided, however, that the foregoing definition shall only be applicable for
purposes of this Contract for the issuance of a Certificate of Final Acceptance
at the end of the Initial Period and for the calculation of Liquidated Damages.
"Maintenance and Instruction Manuals" means the manuals listed in Exhibit R
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and prepared by Vendor and delivered to Owner pursuant to Section 9.
"Manufacturing" means the fabrication of the Equipment.
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"Material Adverse Effect" is defined in subsection 24.2(b).
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"Milestones" means the performance milestones set forth in the Exhibits.
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"MSC" means a Vendor engineered DMS-MTX providing switching functions.
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"Network Planning" means Work related to the design and engineering of a
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System, including frequency clearance.
"OEM Equipment" means (i) any items of non-Vendor equipment made available
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for sale to Owner by Vendor under this Contract that are not integrated into the
Equipment during the manufacturing process; and (ii) non-Vendor software made
available for license to Owner under this Contract that is not resident on
Vendor Equipment.
"Operating Manuals" means the operating and configuration manuals listed in
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Exhibit R to be prepared by Vendor and delivered to Owner pursuant to Section 9
containing detailed procedures and specifications for the operation of any
System, any Expansions and/or any part thereof including, but not limited to,
BTS manuals and BSC manuals.
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"Operator" shall mean Owner, a Related Operator, an Affiliate or any
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independent contractor appointed by Owner, that is constructing or operating a
System or other PCS related facilities.
"Optimization Services" means the RF optimization services described on
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Exhibit N.
"Optional Software Features" means Software features for PCS Products
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available to Owner on an optional, separate fee basis.
"Owner Indemnified Parties" is defined in Section 15.2.
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"PCS" means personal communication services authorized by the Federal
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Communications Commission.
"Person" means an individual, partnership, limited partnership,
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corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental Entity or other
entity of whatever nature.
"Products" means the collective reference to the Equipment and the Software
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provided by Vendor or any Subcontractor.
"Proprietary Information" is defined in subsection 26.18.
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"Punch List" means that list prepared in conjunction with any certificate
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which contains one or more immaterial non-service-affecting items which have not
been fully completed as of the date of the accompanying certificate; provided
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that such incomplete portion of the Work shall not, during its completion,
materially impair the normal daily operation of a System in accordance with the
Specifications.
"Purchase Order" means a written notice given by Owner to Vendor in
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compliance with the provisions of this Contract specifying the Products,
Services or other items of Work that Vendor is authorized to supply or commence
in compliance with the terms of this Contract.
"Purchase Order Date" means the date on which any Purchase Order is issued
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by Owner in accordance with the terms of this Contract.
"Related Operator" means an entity (other than Owner) that holds a license
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issued by the FCC permitting the holder to provide wireless PCS services, that
has entered into a contract with Owner to provide management responsibilities
with respect to the operation of such a service, that may be a party to
agreements pursuant to which Owner resells to or shares with such entity
capacity on Owner's System as, for example, when the Related Operator's cell
site equipment is interconnected with Owner's MSC; provided that, Vendor will
have a reasonable opportunity to review and approve any proposed Related
Operator (such approval not to be unreasonably withheld) based upon: (a)
reasonable
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credit criteria (provided, however, that such credit criteria shall not apply in
the event Owner is liable for the payment obligations of the Related Operator);
(b) whether the proposed Related Operator is, at the time of such determination,
a direct or indirect competitor of the Vendor or its affiliates or owned, in
whole or in part, by a direct or indirect competitor of Vendor; and (c) whether
the proposed Related Operator is, at the time of such determination, otherwise
engaged with the Vendor or it's affiliates in an agreement for the purchase
and/or supply of wireless technology.
"RF" means radio frequency.
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"RTM License" is defined in subsection 13.6.
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"RTU License" is defined in subsection 13.1.
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"Services" means the collective reference to all of the services to be
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furnished by Vendor as part of the Work including, but not limited to all
design, engineering, network planning, construction, interoperability, supply,
delivery, installation, testing, training, repair, maintenance, technical and
other support services, and any and all other services to be furnished by Vendor
as part of the Work in accordance with the terms of this Contract.
"Site" means the physical location of a System Element Facility.
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"Site Acceptance Certificate" means a document submitted by Vendor to Owner
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and signed by an authorized representative of Owner and an authorized
representative of Vendor stating that, in accordance with the requirements of
this Contract, Vendor has successfully completed all Site Acceptance Tests with
respect to the Sites specified therein.
"Site Acceptance Tests" means the collective reference to the performance
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and reliability demonstrations specified in the Exhibits to determine whether a
site meets the Specifications and other requirements of this Contract.
"Site Acquisition" means the activities to be performed by Owner and/or its
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subcontractors in connection with identifying and acquiring sufficient rights to
Sites.
"Site Acquisition Substantial Completion" means, with respect to any
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System, the point at which Owner shall have (i) acquired, by purchase, lease or
otherwise, rights to a sufficient number of Sites in the judgment of Owner, and
(ii) that, with respect to all Sites within such System, all land use and/or
lease requirements or any other activities necessary to be satisfied prior to
the start of construction activities in accordance with Applicable Laws have
been satisfied.
"Site Acquisition Substantial Completion Date" means with respect to any
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System, the date on which Owner shall have achieved Site Acquisition Substantial
Completion.
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"Site Construction" means the demolition, construction and renovation
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work (for example, roads, grading, fencing and structural improvements,
including, but not limited to, any buildings, towers and commercial power) and
the preparation of co-location sites necessary for the installation of Equipment
or the operation of the System, Expansions and/or any part thereof.
"Site Construction Substantial Completion" means the completion of
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all Site Construction with respect to a Site except for Punch List items.
"Site Construction Substantial Completion Certificate" is defined in
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Section 10.1(b).
"Software" means (a) the computer software licensed to Owner pursuant
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to the terms of this Contract, (b) any Software Enhancements, Software
Maintenance Releases, Software Combined Releases and Software Upgrades, and (c)
any Documentation furnished hereunder in respect of clauses (a) and/or (b) of
this definition.
"Software Combined Release" means a Software Upgrade which is at any
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time combined with any Software Enhancement.
"Software Enhancements" means modifications or improvements made to
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the Software relating to Products which improve performance, capabilities or
capacity of the Software revision level with which it is associated or which
provide additional functions to the Software. A Software Enhancement may also
correct defects in earlier versions of the Software.
"Software Maintenance Release" means issues of Software which correct
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defects in preceding versions of Software.
"Software Upgrades" means periodic updates to the Software issued by
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Vendor to Owner under Warranty and Software maintenance obligations which add
to, improve or enhance existing Software features and capabilities involving
more extensive changes to the underlying Source Code or the user interface than
is the case with Software Enhancements. A Software Upgrade may also correct
defects in the Software, or otherwise to correct shortcomings in the Software.
"Source Code" means any version of Software incorporating high level
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or assembly language that generally is not directly executable by a processor.
"Spares" is defined in Exhibit A11.
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"Specifications" means the collective reference to the product
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description documentation and performance standards (including all of the
Services and Products) as set forth in this Contract, including but not limited
to Exhibits P and R; provided that (i) the Specifications shall be deemed to
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include a requirement that all of the Products and Services
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shall be reasonably in accordance with ANSI, ITU, and other applicable industry
standards as required for performance to the Specifications for all Products
provided hereunder, except when otherwise stated in a specific Exhibit or
Specifications or otherwise agreed by the parties, and (ii) with respect to
Services and Products for which product descriptions and performance standards
are not provided and listed in a specific Exhibit, the term "Specifications"
shall refer to Vendor's published specifications in respect thereof.
"Subcontractor" means a contractor, vendor, supplier, licensor or
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other Person, having a direct or indirect contract with Vendor or with any other
Subcontractor of Vendor who has been hired to assist Vendor in the performance
of its obligations under this Contract.
"Substantial Completion" means the time at which Owner signs the
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Certificate of Substantial Completion.
"Switch" means a Vendor-engineered DMS-MTX providing switching
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functions.
"System" means the Sites and Equipment identified by Owner to Vendor
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in writing as collectively comprising a system.
"System Element" means the Products required to perform radio,
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switching and/or system element functions for a System or any Expansions.
"System Element Facility" means the structures, improvements,
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foundations, towers, and other facilities necessary to house or hold any System
Element and any related Products to be located at a particular location.
"Taxes" is defined in subsection 5.2.
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"Training" is defined in subsection 9.4.
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"Vendor Developments" is defined in subsection 14.3.1.
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"Vendor Financing" means a loan to be provided by Vendor to Owner
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pursuant to documentation acceptable to both parties.
"Warranty" means any one or more of the Equipment and Services
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Warranty, Expansions Warranty, Software Warranty, Software Backwards
Compatibility Warranty, Equipment Backwards Compatibility Warranty, Compliance
Warranty and the Year 2000 Warranty.
"Warranty Period" is defined in Section 18.1.
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"Work" means the furnishing of Products hereunder, and the performance
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of work, engineering services, installation services and all other related
activities and obligations required to be performed by Vendor pursuant to this
Contract.
1.2 Other Definitional Provisions. (a) When used in this Contract,
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unless otherwise specified therein, all terms defined in this Contract shall
have the defined meanings set forth herein. Terms defined in the Exhibits are
deemed to be terms defined herein; provided that in the case of any terms that
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are defined both in this Contract and/or an Exhibit, the definitions contained
in this Contract shall supersede such other definitions for all purposes of this
Contract; provided further, that definitions contained in any Exhibit shall
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control as to such Exhibit.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Contract refer to this Contract as a whole and not to
any particular provision of this Contract and section, subsection, schedule and
exhibit references are to this Contract unless otherwise specified. Reference
herein to Section shall mean any and all subsections thereof.
(c) The meanings given to terms defined in this Contract are
applicable to both the singular and plural forms of such terms.
SECTION 2. SCOPE OF WORK, RESPONSIBILITIES AND PROJECT MILESTONES
2.1 Scope of Work. During the Contract Term and in accordance with
-------------
Purchase Orders issued to Vendor from time to time, Vendor shall engineer,
design, plan, manufacture, construct, install, test and perform all Work. The
terms of this Contract shall also apply to Purchase Orders issued by Affiliates
and by Owner, for and on behalf of its Related Operators, provided that in each
case, the Purchase Orders are made pursuant to and incorporate by reference the
terms of this Contract. Vendor shall be responsible for providing in accordance
with the terms of this Contract any and all items and services which are
expressly described in this Contract or in the Exhibits. Vendor shall furnish
all labor, materials, tools, transportation and supplies required to complete
its obligations in accordance with this Contract.
In instances where Purchase Orders are placed by an Affiliate or by
Owner on behalf of a Related Operator, Owner shall be considered the purchaser
for purposes of addressing invoices and the obligation of payment. Owner agrees
to be obligated hereunder with respect to all payments that become due hereunder
with respect to Purchase Orders placed by an Affiliate or by Owner on behalf of
a Related Operator, including but not limited to all payments for Products. The
Affiliate or Related Operator shall be deemed to be the Owner for purposes of
passage of title and risk of loss with regard to Products that are delivered to
it. The Affiliate or Related Operator shall be entitled to enforce all rights
and benefits of Owner under this Contract directly against Vendor with respect
to the respective purchases made by such entities, including without limitation
rights relating to Warranties,
14
indemnification, Documentation, System acceptance procedures, RTU Licenses,
other Software related licenses, Software and Equipment Enhancements and
Upgrades, technical assistance and Liquidated Damages. Vendor hereby consents to
the disclosure of all of the information contained in this Contract (including
without limitation the Exhibits hereto) to any Affiliate or Related Operator and
the use of the information contained in this Contract in any agreement between
Owner and any Affiliate or Related Operator relating to the purchase or sale of
Products and Services.
Prior to any Affiliate or Owner, on behalf of a Related Operator,
issuing a Purchase Order hereunder, Owner agrees to require any such Affiliate
or Related Operator, as applicable, to (i) execute a software license directly
with Vendor, if such Affiliate or Related Operator is licensing Software, with
terms no less restrictive as those terms and conditions contained in the
software license herein, and (ii) agree to any other terms and conditions as set
forth in this Contract applicable to the Products or Services purchased.
Subject to Section 20.4, Owner agrees to indemnify, defend and hold
harmless Vendor and its affiliates and their respective directors, officers,
employees, agents, successors and assigns, from Losses and threatened Losses
arising from, in connection with, or based on allegations of, any breach of the
terms of this Contract applicable to such Affiliate or Related Operator.
2.2 [intentionally deleted]
2.3 Site Acquisition. Vendor shall offer to Owner the Site
----------------
Acquisition services set forth on Exhibit H. At Owner's option, Owner may
acquire any or all Sites. In the event Owner acquires Sites, Vendor, at its
request, shall be kept informed of the progress made on such Owner controlled
Site Acquisition activity. As the Site Acquisition progresses, Vendor agrees to
alter regularly the engineering plan to determine a new search ring or rings to
take into account any changes or modifications requested by Owner to take into
account any changes or modifications requested by Owner; provided that all such
changes or modifications requested by Owner shall be addressed pursuant to the
Change Order provisions described in Section 11 below. When making changes to
the RF engineering plan, Vendor shall take into account the Site Acquisition
already completed by Owner or Vendor. Upon Site Acquisition Substantial
Completion, Owner shall notify Vendor of the Site Acquisition Substantial
Completion Date.
2.4 Expansions. During the Contract Term, Owner may, from time to
----------
time, order Expansions from Vendor, subject to the provisions of Section 12. The
price and terms of such Expansions shall be as set forth in Exhibit A04.
2.5 Review of Contract. Each party has examined in detail and
------------------
carefully studied and compared the Contract with all other information furnished
by the other party and has promptly reported to the other party any material
errors, inconsistencies or omissions so discovered or discovered by any of its
Subcontractors.
15
2.6 Eligibility under Applicable Laws and Applicable Permits. Vendor
--------------------------------------------------------
shall be responsible for ensuring that Vendor and its Subcontractors are and
remain eligible under all Applicable Laws and Applicable Permits to perform the
Work under this Contract in the various jurisdictions involved including, to the
extent that Vendor will be responsible for construction for any particular
component of the Work, all such construction will be done in accordance with all
applicable Federal Communications Commission requirements. Each of Owner and
Vendor shall be responsible for obtaining and maintaining in full force and
effect the Applicable Permits listed as its responsibility in the applicable
Exhibits. Owner shall use its best commercially reasonable efforts to 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 PCS System.
2.7 Further Assurances. Vendor shall execute and deliver all
------------------
reasonable further instruments and documents, and will, in good faith, consider
all reasonable requests for further action, including, but not limited to,
assisting Owner in filing notices of completion with the appropriate state and
local Governmental Entity, that may be necessary or that Owner may reasonably
request in order to enable Owner or Vendor to complete performance of the Work
or to effectuate the purposes or intent of this Contract. All such requests
shall be addressed pursuant to the Change Order procedures described below in
Section 11.
2.8 Liens and Other Encumbrances. (a) Vendor covenants and agrees,
----------------------------
subject to Vendor's receipt from Owner of full payment in respect thereof, to:
(i) protect and keep free all Systems, Expansions
and/or any and all interests and estates therein acquired from Vendor, and
all improvements and materials now or hereafter placed thereon under the
terms of this Contract, from any and all claims, liens, charges or
encumbrances of the nature of mechanics, labor or materialmen liens or
otherwise arising out of or in connection with the performance by Vendor of
this Contract or any performance by any Subcontractor, and to promptly have
any such lien released by bond or otherwise; and
(ii) give notice of this subsection to each
Subcontractor before such Subcontractor furnishes any labor or materials
for any System.
(b) If any laborers', materialmen's, mechanics', or other similar
lien or claim thereof is filed by any Subcontractor, Vendor shall use it best
commercial efforts to cause such lien to be satisfied or otherwise discharged,
or shall file a bond in form and substance satisfactory to Owner in lieu thereof
within ten (10) Business Days of Vendor's receipt of notice of such filing. If
any such lien is filed or otherwise imposed, and Vendor does not cause such lien
to be released and discharged forthwith, or file a bond in lieu thereof, then,
without limiting Owner's other available remedies, Owner has the right, but not
the obligation, to pay all sums necessary to obtain such release and discharge
or otherwise cause the lien to be removed or bonded to Owner's satisfaction from
funds retained from any payment then due or thereafter to become due to Vendor.
16
(c) Owner reserves the right to post or place within any System
notices of non-responsibility or to do any other act required by Applicable Law,
to exempt Owner from any liability to third parties by reason of any work or
improvements to be performed or furnished hereunder; provided that failure by
-------- ----
Owner to do so shall not release or discharge Vendor from any of its obligations
hereunder.
2.9 Duty To Inform Itself Fully; Waiver of Defense. (a) Each party
----------------------------------------------
shall be deemed to have notice of and to have fully examined and approved the
Specifications, the Exhibits and all other documents referred to herein, and all
drawings, specifications, schedules, terms and conditions of this Contract,
regulations and other information in relation to this Contract and/or any
amendments, modifications or supplements thereto at all times on or after the
Effective Date and to have fully examined, understood and satisfied itself as to
all information of which it is aware and which is relevant as to the risks,
contingencies and other circumstances which could affect this Contract and in
particular the installation of any System or any part thereof.
2.10 Advances Under The Credit Agreement. Advances under the credit
-----------------------------------
agreement between Owner and Vender governing the Vendor Financing (the "Credit
Agreement") for Permitted Third Party Payments, as defined in the Credit
Agreement, shall be used for the purchase of equipment only when: (i) Vendor
does not manufacture equipment equivalent in Form, Fit and Function; (ii) Vendor
manufactures equipment equivalent in Form, Fit and Function, but Vendor does not
offer such equipment to Owner at a competitive price; or (iii) Vendor chooses
not to offer equivalent equipment to Owner.
SECTION 3. PURCHASE ORDERS AND SCHEDULES
3.1 Purchase Orders. Owner and any Affiliate and Owner on behalf of a
---------------
Related Operator may deliver Purchase Orders to Vendor at any time and from time
to time during the Contract Term. Such Purchase Orders shall be sent to Vendor
either by certified mail, electronic transmission or another mutually acceptable
manner to the address specified in Exhibit D of this Contract. All Purchase
Orders shall be governed by the terms and conditions of this Contract, unless
otherwise agreed by the parties in writing. Each Purchase Order shall reference
this Contract and specify, in reasonable detail, the Products, Services or other
items of Work to be provided by Vendor and whether the Purchase Order is being
submitted on behalf of a Related Operator.
3.2 Delivery under the Contract. Vendor shall complete the Work
---------------------------
specified in each Purchase Order in accordance with the terms and conditions of
this Contract.
3.3 Order Acceptance. All Purchase Orders shall be deemed to
----------------
incorporate and be subject to the terms and conditions of this Contract unless
otherwise agreed in writing. All Purchase Orders, including electronic orders,
shall contain the information necessary for Vendor to fulfill the order. All
schedules and requested dates are subject to Vendor's concurrence, provided that
if orders are made within the agreed to lead times
17
specified in Exhibit E, Vendor shall not withhold its concurrence to the
requested dates. No provision or data on any Purchase Order or contained in any
documents attached to or referenced in any Purchase Order, or any subordinate
document (such as shipping releases), which is inconsistent with the terms of
this Contract shall be binding, except data necessary for Vendor to fill the
order. All such other data and provisions are hereby rejected. Electronic orders
shall be binding on Owner notwithstanding the absence of a signature, provided
that the parties have implemented a mutually acceptable electronic order process
and such orders deemed to be binding have been issued by Owner and accepted by
Vendor in accordance with the process agreed upon by the parties. Vendor may
accept or reject any Purchase Order placed in accordance with the terms of this
Contract; provided that, any Purchase Order issued by Owner and not rejected in
writing within ten (10) Business Days shall be deemed accepted by Vendor;
provided further, Purchase Orders placed by Owner, any Affiliate or on behalf of
a Related Operator shall be afforded no less favorable treatment in terms of
acceptance than purchase orders placed by other customers of Vendor. Order
delivery schedules and intervals and forecast requirements are set forth in
Exhibit E.
While it is Vendor's objective to provide Owner with an acknowledgment
of each order received, Owner shall advise Vendor to the extent that Owner
becomes aware of any missing or late notifications to ensure that the order has
not been lost.
Changes made by Owner to an accepted Purchase Order shall be treated
as a separate order unless the parties expressly agree otherwise. If any such
change affects Vendor's ability to meet its obligations under the original
Purchase Order, any price, shipment date, or completion date quoted by Vendor
with respect to such original order is subject to change and shall be addressed
pursuant to the Change Order provisions below in Section 11.
3.4 Forecasts. Owner shall provide to Vendor regular forecasts of
---------
Owner's annual Product and Services needs. If the quantities ordered are more
than 25% greater than forecast quantities, Vendor shall be permitted a
reasonable extension of time at the time of the placement of the excess orders
to fulfill such orders and achieve the Milestones required of Vendor hereunder.
3.5 Deployment Plans and Milestones. The deployment plans and
-------------------------------
intervals, together with the key milestones, order intervals, in respect of each
System, are set forth in Exhibit E.
3.6 Inventory Control and Bar-coding. Vendor shall, at no additional
--------------------------------
charge, pack and ▇▇▇▇ shipping containers in accordance with its standard
practices for domestic shipments. Vendor 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 applicable for
identification in accordance with Vendor's marking specifications (for example,
model/serial number and month, year of manufacture).
18
SECTION 4. SUBCONTRACTORS
4.1 Subcontractors. Vendor may subcontract any portion of its
--------------
obligations under this Contract, but no such subcontract shall relieve Vendor
from primary responsibility and liability for the performance of Vendor's
covenants and obligations under this Contract. Regardless of whether or not
Vendor obtains approval from Owner with respect to use of a Subcontractor or
whether Vendor uses a Subcontractor recommended by Owner, use by Vendor of a
Subcontractor shall not, under any circumstances: (i) give rise to any claim by
Vendor against Owner if such Subcontractor breaches its subcontract or contract
with Vendor; (ii) give rise to any claim by such Subcontractor against Owner;
(iii) create any contractual obligation by Owner to the Subcontractor; (iv) give
rise to a waiver by Owner of its rights to reject any Defects or Deficiencies or
Defective Work; or (v) in any way release Vendor from being solely responsible
to Owner for the Work to be performed under this Contract.
4.2 Vendor's Liability. Vendor is responsible for all of its
------------------
obligations under this Contract, including the Work, regardless of whether a
subcontract or supply agreement is made or whether Vendor relies upon any
Subcontractor to any extent. Vendor's use of Subcontractors for any of the Work
shall in no way increase Vendor's rights or diminish Vendor's liabilities to
Owner with respect to this Contract, and in all events, except as otherwise
expressly provided for herein, Vendor's rights and liabilities hereunder with
respect to Owner shall be as though Vendor had itself performed such Work.
Vendor shall be liable for any delays caused by any Subcontractor as if such
delays were caused by Vendor.
4.3 No Effect of Inconsistent Terms in Subcontracts. The terms of
-----------------------------------------------
this Contract shall in all events be binding upon Vendor regardless of and
without regard to the existence of any inconsistent terms in any agreement
between Vendor and any Subcontractor whether or not and without regard to the
fact that Owner may have directly and/or indirectly had notice of any such
inconsistent term.
4.4 Assignability of Subcontracts to Owner. Vendor shall use
--------------------------------------
reasonable efforts to have each agreement between Vendor and a Subcontractor
contain a provision stating that, in the event that Vendor is terminated for
cause, convenience, abandonment of this Contract or otherwise, (i) each
Subcontractor shall continue its portion of the Work as may be requested by
Owner and (ii) such agreement may be assumed without penalty to Owner and, in
order to create security interests, may be assigned by Owner to third parties
designated by Owner, in either case at the option of Owner and for the same
price and under the same terms and conditions as originally specified in such
Subcontractor's agreement with Vendor.
4.5 Removal of Subcontractor or Subcontractor's Personnel. Owner
-----------------------------------------------------
has the right at any time to request removal of a Subcontractor and/or any of a
Subcontractor's personnel from Work on the System upon reasonable grounds and
reasonable prior notice to Vendor. Such request (a "Request for Removal") shall
-------------------
be in writing and shall specify
19
Owner's reasoning therefor. Vendor promptly shall issue a written response to
any such Request for Removal, specifying the reasoning for its disagreement or
agreement, as the case may be, with the reasoning contained in the Request for
Removal. If the parties fail to agree, this matter shall be handled in
accordance with the dispute resolution procedures in Section 23. The exercise of
such right by Owner shall have no effect on the provisions of subsections 4.1
and 4.2.
4.6 Subcontractor Insurance. Vendor shall require its Subcontractors
-----------------------
to obtain, maintain and keep in force, during the time they are engaged in
providing Products and Services hereunder, insurance coverage of the types and
levels customary in the industry (provided that the maintenance of any such
Subcontractor insurance shall not relieve Vendor of its other obligations
pursuant to this Contract). Vendor shall, upon Owner's request, furnish Owner
with evidence of such insurance in form and substance reasonably satisfactory to
Owner.
4.7 Review and Approval not Relief of Vendor Liability. No
--------------------------------------------------
inspection, review or approval by Owner permitted under this Contract of any
portion of the Work shall relieve Vendor of any duties, liabilities or
obligations under this Contract, but nothing contained in this subsection shall
be deemed a bar of any waiver given by Owner to Vendor pursuant to and in
accordance with the terms of this Contract.
4.8 Vendor Warranties. Except as otherwise expressly provided in
-----------------
Section 18, the warranties of Vendor pursuant to Section 18 shall be deemed to
apply to all Work performed by any Subcontractor as though Vendor had itself
performed such Work and to all Products supplied by any third-party vendor or
other subcontractor as though Vendor itself had supplied such Products. Except
as otherwise specifically provided in Section 18, the parties agree that such
warranties shall not be enforceable merely on a "pass-through" basis but that
Owner may, but shall not be obligated to, enforce such warranties of any
Subcontractor to the extent that Owner determines that Vendor is not paying
and/or performing its warranties; provided that any such election by Owner shall
-------- ----
not relieve Vendor from any obligations or liability with respect to any such
warranty.
4.9 Payment of Subcontractors. Vendor shall make all payments it is
-------------------------
contractually required to make to all Subcontractors (except in the case of
legitimate disputes between Vendor and any such Subcontractor arising out of the
agreement between Vendor and such Subcontractor) in accordance with the
respective agreements between Vendor and its Subcontractors such that no
Subcontractor shall be in a position to enforce any liens and/or other rights
against Owner, the System, any Products or any part thereof.
4.10 Copies. Subject to any confidentiality obligations insisted upon
------
by third party providers, including Subcontractors, Vendor will use its good
faith, reasonable efforts to provide Owner with any and all relevant agreements,
understandings, subcontracts and other documents pertaining to the provision of
Products or Services by a Subcontractor which Owner may reasonably require in
order for it to be provided with the information necessary to exercise any of
its rights under this Contract.
20
4.11 Benefit of Subcontracts. In addition to anything else provided
-----------------------
for in this Contract, Vendor shall make best commercially reasonable efforts to
ensure that Owner shall be entitled to the following benefits and rights of
Vendor under its contracts with any applicable third-party vendors or other
Subcontractors: all rights to conduct in-house tests, to receive notice of
upgrades and enhancements and to purchase spare parts; provided however, that
-------- -------
Vendor shall maintain sole responsibility for all obligations and other duties
under all such contracts.
SECTION 5. PRICES AND PAYMENT
5.1 Prices. (a) The prices for the Products, Services and other items
------
of Work for the Contract Term are set forth in ▇▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇. The prices
for Expansions are also set forth in Exhibit A04.
(b) Price Protection. [***]
----------------
5.2 Taxes. Owner shall reimburse Vendor for all present or future
-----
taxes, levies, imposts, deductions, charges, withholdings and liabilities
("Taxes") imposed on Vendor by any Governmental Entity relating to the provision
-----
of Products and Services by Vendor to Owner under this Contract, provided,
however, that Owner shall not be liable for and shall not pay or reimburse
Vendor for (i) any Taxes on or measured by the income or receipts of Vendor, and
(ii) any import or export taxes, fees, imposts or charges imposed by any
Canadian or United States Governmental Entity on any of the Products or Services
furnished to Owner hereunder for deliveries of such Products in the United
States only. If Owner shall pay Taxes for which Vendor receives a credit, then
Vendor shall reimburse to Owner an amount equal to such credit.
5.3 Payment. Payment for the Products and Services to be supplied
-------
pursuant to this Contract shall occur as follows (in each case following
submission of an
[*] Certain material (indicated by an asterisk) has been omitted form this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
21
invoice by Vendor which shall properly document, to the reasonable satisfaction
of Owner, all the items included):
(a) Systems
(i) Products for Systems provided hereunder: Except as set forth
---------------------------------------
in subsections (b) and (c) below,
(1) [*] of the amount of all Purchase Orders completed by
Vendor with respect to a Site shall be invoiced upon shipment of
the Products in respect of such Purchase Orders;
(2) [*] of the amount of all Purchase Orders completed by
Vendor with respect to a Site shall be invoiced upon completion
of Installation and Integration of the Products with respect to
each Site;
(3) [*] of the amount of all Purchase Orders completed by
Vendor with respect to a Site shall be invoiced upon the date
Owner signs a Certificate of Substantial Completion that covers
the Products forming part of such Purchase Orders; provided that
in the event that a Certificate of Substantial Completion is not
issued within five (5) Business Days after the Guaranteed
Substantial Completion Date because of a delay in reaching
Substantial Completion solely attributable to the failure or lack
of performance of Owner to satisfy its obligations and
commitments in a timely manner, such amount shall be invoiced on
the fifth (5/th/) Business Day following the Guaranteed
Substantial Completion Date; and
(4) the balance of all amounts due Vendor pursuant to
completed Purchase Orders with respect to Products for a System
shall be invoiced upon Final Acceptance of such System; provided,
however, notwithstanding anything to the contrary contained in
this Contract, the balance of all such amounts shall be due no
later than [*] from Substantial Completion.
(ii) Services for Systems provided hereunder: Except as set
---------------------------------------
forth in subsections (b) and (c) below,
(1) [*] of the amount of all Purchase Orders completed by
Vendor with respect to a Site shall be invoiced upon completion
of the Services in respect of such Purchase Orders;
[*] Certain material (indicated by an asterisk) has been omitted form this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
22
(2) [*] of the amount of all Purchase Orders completed by
Vendor with respect to a Site shall be invoiced upon the date
Owner signs a Certificate of Substantial Completion that covers
the Services forming part of such Purchase Orders; provided that
in the event that a Certificate of Substantial Completion is not
issued within five (5) Business Days after the Guaranteed
Substantial Completion Date because of a delay in reaching
Substantial Completion solely attributable to the failure or lack
of performance of Owner to satisfy its obligations and
commitments in a timely manner, such amount shall be invoiced on
the fifth (5/th/) Business Day following the Guaranteed
Substantial Completion Date; and
(3) the balance of all amounts due Vendor pursuant to
completed Purchase Orders with respect to Services for a System
shall be invoiced upon Final Acceptance of such System; provided,
however, notwithstanding anything to the contrary contained in
this Contract, the balance of all such amounts shall be due no
later than [*] from Substantial Completion.
(b) Subcontracted Services: Services provided by Subcontractors shall
----------------------
be invoiced as performed, or as soon thereafter as practical but in no event
more frequently than monthly.
(c) Expansions (Growth):
-------------------
(1) [*] of the amount of all Purchase Orders completed by
Vendor with respect to Products for which Vendor provides
installation Services pursuant to an Expansion shall be invoiced
upon shipment of such Products to the initial location specified
on Owner's Purchase Order; and
(2) [*] of the amount of all Purchase Orders completed by
Vendor with respect to Products for which Vendor provides
installation Services pursuant to an Expansion shall be invoiced
upon completion of installation of such Products; and
(3) [*] of the amount of all Purchase Orders completed by
Vendor with respect to Products for which Vendor provides no
installation Services pursuant to an Expansion shall be invoiced
upon shipment of such Products.
(d) Payment of Invoices. Owner shall pay the invoiced amounts, less
-------------------
any disputed amounts, within ten (10) days from the date of transmission of
Vendor's invoice. Delinquent payments are subject to a late payment charge
after twenty (20) days at the rate
[*] Certain material (indicated by an asterisk) has been omitted form this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
23
of [*] per month, or portion thereof, of the amount due (but not to exceed the
maximum lawful rate). Any disputed items which are determined to be validly
billed are due for payment based upon the original invoice date.
5.4 No Payment in Event of Material Breach. Subject to Subsection
--------------------------------------
24.5, Owner shall have no obligation to make any payment for any Work with
respect to which Vendor is in material breach of this Contract until and unless
such breach is cured or waived by Owner in accordance with the terms of this
Contract.
5.5 In Revenue Payments. At any time during a period of delay Owner
-------------------
may, in its sole discretion, decide to place a System which is subject to such
delay into In Revenue Service. Such placement into In Revenue Service shall
constitute Substantial Completion only for purposes of the payment obligations
above, but shall not in any way relieve Vendor of any of its obligations under
this Contract, including without limitation achieving a Guaranteed Substantial
Completion Date nor shall such In Revenue Service trigger the commencement of
the Initial Period.
5.6 Currency and Place of Payment. Payments under this Contract shall
-----------------------------
be made in US dollars and if such method of payment is acceptable to Owner,
Owner shall pay all amounts due Vendor hereunder using Electronic Funds Transfer
("EFT"). EFT payments by Vendor shall be made to the following account of Vendor
or such other account as is subsequently designated by Vendor in writing.
[***]
[***]
[***]
[***]
SECTION 6. AVAILABILITY OF INTEROPERABILITY SPECIFICATION ("IOS")
------------------------------------------------------
6.1 Availability of IOS. Availability of IOS is described in Exhibit
-------------------
S.
SECTION 7. [intentionally omitted]
SECTION 8. SERVICES
8.1 Transportation. Vendor shall at Vendor's sole cost and expense
--------------
provide for the transportation and delivery to the Sites of all the Products to
be delivered pursuant to, and in accordance with, each Purchase Order and the
terms of this Contract. In the event of any unusual Site selections or
requirements which require transportation arrangements out of the ordinary
course having regard to normal industry standards and practices (such as crane
requirements, helicopter transportation requirements to a remote setting, etc.),
Vendor
[*] Certain material (indicated by an asterisk) has been omitted form this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
24
shall arrange, subject to Owner's prior approval, for such exceptional
transportation requirements from local staging facilities or warehouse locations
to the unusual Site. Vendor shall notify Owner that it believes, in good faith,
that exceptional transportation arrangements are necessary in the circumstances,
and Vendor will consult with Owner on an approved course of action to complete
delivery. Owner shall be responsible for all costs with respect to such
exceptional transportation requirements in excess of transportation costs
applicable to a standard Site.
8.2 Services. Vendor shall provide the Services ordered by Owner in
--------
accordance with the provisions of the Exhibit hereto in respect of such
Services, including, without limitation, the following Services: RF Design
Services as stated in Exhibit M, construction management services as stated in
Exhibits J1 and J2, and site construction services as stated in Exhibit K,
architectural and engineering services as stated in Exhibits I1 and I2, RF
Optimization Services as set forth in Exhibit N, Installation and Integration
services as set forth in Exhibits L and O, and support services as stated in
Exhibit T1.
8.3 No Interference. Vendor shall install all Equipment and build
---------------
each of the Systems so as to cause no unauthorized interference with or
obstruction to lands and thoroughfares or rights of way on or near which the
installation work may be performed. Vendor shall exercise every reasonable
safeguard to avoid damage to existing facilities, and if repairs or new
construction are required in order to replace facilities damaged by Vendor due
to its negligence or willful misconduct, such repairs or new construction shall
be at Vendor's sole cost and expense. Vendor understands that many of the Sites
may be co-located with other RF transmission facilities and Vendor shall take
all necessary precautions and safety measures to ensure the safety of all of
Vendor's and Subcontractors' personnel at such Sites. Owner shall use its best
commercially reasonable efforts to ensure that no other third parties employed
or engaged by Owner hinder or delay Vendor in the performance of its
installation obligations hereunder.
Vendor represents and warrants that all Products furnished hereunder
shall comply, to the extent required, with the requirements of Part 24 of the
Federal Communication Commission's Rules and Regulations (the "FCC Rules")
---------
pertaining to personal communications services in effect upon delivery of such
Product. In addition, Vendor represents and warrants that a Product furnished
hereunder shall comply, to the extent required, with the requirements of Subpart
J of Part 15 of the FCC Rules 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. Vendor makes
no undertaking with respect to harmful interference caused by (i) unauthorized
installation, repair, modification or change or Products not furnished by
Vendor; (ii) Products being subject to misuse, neglect, accident or abuse by
other than Vendor; (iii) Products being used in a manner not in accordance with
operating instructions or in a suitable installation environment or operation of
other equipment in the frequency ranges reserved for Owner within the applicable
licensed area. Vendor assumes no responsibility under this clause for items not
specified or supplied by Vendor. The foregoing warranties are collectively
referred to as the "Compliance Warranty".
-------------------
25
Vendor shall, when appropriate, have reasonable access to Owner's
premises during normal business hours and at such other times as may be agreed
upon by the parties in order to enable Vendor to perform its obligations under
this Contract. Vendor shall coordinate such access with Owner's designated
representative prior to visiting such premises. Vendor agrees to instruct its
employees to comply with all site rules while on Owner's premises. The employees
and agents of Vendor shall, while on Owner's premises, comply with all site
rules and guidelines including, but not limited to, where required by government
regulations. Neither party shall require waivers or releases of any personal
rights from representatives of the other in connection with visits to its
premises, and no such releases or waivers shall be pleaded by either party in
any action or proceeding.
For purposes of this Section, all references to "Owner's premises" and
other similar references shall be deemed to refer to any location where a Site
is to be located, which may include land or buildings owned or leased by Owner.
To the extent that Owner does not own the premises, Vendor's obligations to
adhere to site rules and guidelines shall include, without limitation, those
rules and guidelines required by the owner, landlord or property manager having
care and control of such premises, which Owner has provided to Vendor in advance
of the commencement of the applicable Work hereunder.
SECTION 9. MANUALS, ENGINEERING DRAWINGS AND TRAINING
9.1 Documentation. Vendor shall provide the Documentation in the
-------------
amounts and formats listed in Exhibit R. The Documentation shall be prepared in
accordance with the relevant Specifications. Operating Manuals with up-to-date
drawings, specifications and design sheets shall be available for the Training
as set forth in subsection 9.4.
9.2 Standards for Manuals. All Operating Manuals and Maintenance and
---------------------
Instruction Manuals required to be provided by Vendor pursuant to this Contract
shall be accurate and shall be:
(a) detailed and comprehensive and prepared in conformance with the
Specifications and generally accepted national standards of professional
care, skill, diligence and competence applicable to telecommunications and
operation practices for facilities similar to the Systems;
(b) consistent with good quality industry operating practices for
operating personal communications service systems of similar size, type and
design;
(c) sufficient to enable Owner to operate and maintain each System on
a continuous basis; and
(d) prepared subject to the foregoing standards with the goal of
achieving operation of each System at the capacity, efficiency,
reliability, safety and
26
maintainability levels contemplated by this Contract and required by all
Applicable Laws and Applicable Permits.
9.3 Equipment and Data. Vendor shall furnish all drawings,
------------------
specifications, specific design data, preliminary arrangements and outline
drawings of the Equipment and all other information as required in accordance
with this Contract in sufficient detail to indicate that the Equipment and
fabricated materials to be supplied under this Contract comply with the
Specifications.
9.4 Training. As more fully described in Exhibits A12 and A13, Vendor
--------
shall provide to Owner a training program with respect to each System
(collectively, the "Training"). Promptly upon execution of this Contract, Vendor
--------
shall establish a training coordinator, whose responsibility shall be to work
with Owner to ensure that Owner receives the Training. Such coordinator (or his
or her replacement) shall continue in such assignment until the receipt by Owner
of all of the Training required to be provided.
9.5 Manuals and Training. The Training and the Documentation provided
--------------------
in connection herewith, including, without limitation, all Documentation
provided in CD-ROM format and all documentation provided pursuant to subsections
9.2, 9.3 and 9.4 shall be updated in reasonable quantities at no additional cost
to Owner pursuant to and in accordance with all Product upgrades and/or
modifications applicable to any System and/or any part thereof.
SECTION 10. ACCEPTANCE PROCEDURES
10.1 Acceptance Procedures. Depending upon the specific Products and
---------------------
Services to be furnished by Vendor, and those tasks for which Owner shall assume
responsibility, the parties, directly or through third-party vendors or other
Subcontractors, as the case may be, shall carry out the following procedures.
(a) Factory Tests Owner may, at Owner's option and cost, be present
-------------
at any factory testing conducted by Vendor. Upon request, Vendor shall give
Owner ten (10) Business Days advance notice of any such factory testing relating
to the types of Products or Services furnished by Vendor hereunder. Vendor shall
cooperate with Owner to facilitate Owner's observation of such tests. Regardless
of whether or not Owner observes any factory testing, Vendor agrees to, within a
reasonable period of time in view of the nature and urgency of the request, upon
written request by Owner, provide Owner with copies of all documentation
relating to factory testing of the Product specified by Owner, including without
limitation copies of test procedures, test results and FCC compliance
certifications.
(b) Site Construction Substantial Completion At Owner's option,
----------------------------------------
Vendor shall perform all Site Construction activities with respect to Sites
designated by Owner. Upon completion of all Site Construction with respect to
each Site for which Owner has issued a Purchase Order directing Vendor to
proceed with Site Construction activities, Vendor shall issue a Site
Construction Substantial Completion Certificate ("Site
----
27
Construction Substantial Completion Certificate") certifying that all Site
------------------------------------------------
Construction specified in the Purchase Order is substantially complete. Such
certificate shall be accompanied by a Punch List of all incomplete items which
items shall be completed by Vendor prior to Final Acceptance. Vendor shall offer
construction management, architectural & engineering, site civil construction
and antenna installation and testing as provided for in Exhibits J1, J2, I1, I2,
and K and at pricing consistent with that set forth in Exhibit A03. In the event
Owner performs Site Construction with respect to a Site, Owner shall issue the
Site Construction Substantial Completion Certificate.
(c) Site Installation and Integration Completion Certificate. Upon
--------------------------------------------------------
completion of the installation of the BTS and other Products and the completion
of integration activities in accordance with Exhibits L and O, Vendor shall
issue a Site Installation and Integration Substantial Completion Certificate
certifying that all installation and integration activities specified in the
Purchase Order are substantially complete. Such certificate shall be
accompanied by a Punch List of all incomplete items which items shall be
completed by Vendor prior to Final Acceptance.
(d) Certificate of Substantial Completion. Upon completion of RF
-------------------------------------
Optimization Services and all testing with respect to a System in accordance
with Exhibit N, Vendor shall issue a Certificate of Substantial Completion,
which shall be in the form of a checklist listing all tests performed and the
results thereof, and shall be accompanied by a Punch List of outstanding items
(the "Certificate of Substantial Completion"). Upon its reasonable satisfaction
-------------------------------------
that the Certificate of Substantial Completion is correct and complete, Owner
shall promptly sign the Certificate of Substantial Completion.
(e) "Beta" Tests Upon written notice to Vendor, Owner shall be entitled,
------------
in its sole discretion to conduct beta testing, and in connection therewith
Owner shall be entitled to add appropriate items to the Punch List prior to
Final Acceptance.
(f) Certificate of Final Acceptance. During the [*] period following
-------------------------------
Substantial Completion (as extended as described below, the "Initial Period"),
Vendor shall complete all outstanding Punch List items and Owner and Vendor
shall monitor the System for outages and compliance with the Specifications. In
event that all Punch List items have been completed during the Initial Period,
all testing specified in Exhibit L has been satisfactorily completed and there
have been no Major Outages, then at the end of the Initial Period Vendor shall
issue a Certificate of Final Acceptance certifying the same. Upon its
reasonable satisfaction that the Certificate of Final Acceptance is correct and
complete, Owner shall sign the Certificate of Final Acceptance. In the event
that a Major Outage occurs during the Initial Period, the Initial Period shall
be extended (each, an "Extension Period") as follows: (i) if a Major Outage
----------------
occurs on or prior to [*] after the commencement of the Initial Period, the
Initial Period shall be extended for an additional [*], (ii) if a Major Outage
occurs after [*] but on or prior to [*] after the commencement of the Initial
Period, the Initial Period shall be extended for an additional [*], and (iii) if
a Major Outage occurs after [*] but on or prior to [*] after the commencement of
the Initial
[*] Certain material (indicated by an asterisk) has been omitted form this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
28
Period, the Initial Period shall be extended for an additional [*]; provided,
however, the Extension Period shall be limited to a total of [*]. In the event a
Major Outage occurs during any Extension Period, the Initial Period shall be
further extended by an additional period of [*]; provided that, in the event
that Final Acceptance has not occurred after [*] from Substantial Completion,
Final Acceptance shall occur when the System has operated without a Major Outage
for a period of [*] continuous [*] and all Punch List items are completed.
Provided that Vendor has completed all Punch List items and all other
requirements set forth in Exhibit L, Owner shall issue a Certificate of Final
Acceptance not later than the end of the Initial Period (as extended) after
receipt of notice from Vendor containing (i) a statement that Vendor has
corrected the problem giving rise to the Major Outage or Major Outages, and (ii)
a description of the corrections made. Documentation not already delivered to
Owner pursuant to the terms of this Contract shall be delivered to Owner within
ten (10) Business Days of Final Acceptance. With respect to each System, Owner
shall not be required to sign the Certificate of Final Acceptance until all such
Documentation has been so delivered (and Final Acceptance shall not be deemed to
have occurred earlier than the date that is ten (10) Business Days prior to the
date of delivery of such Documentation). In addition to, and without limiting
the requirements set forth in the preceding sentence, the Operating Manuals and
the Maintenance and Instruction Manuals shall be submitted to Owner in CD-ROM
format (when available) in addition to hard-copy volume format if so requested
by Owner.
10.2 Costs and Expenses. The costs and expenses of complying with all
------------------
acceptance procedures set forth above shall be borne by Vendor, provided that
Owner remains responsible for completing those items identified as Owner's
responsibility in the Exhibits.
SECTION 11. CHANGE ORDERS AND SCHEDULING
11.1 Change Orders. Owner has the right to request expansions, other
-------------
revisions and/or modifications to any Purchase Order or to the Work ("Changes"),
-------
including but not limited to the Specifications, the manner of performance of
the Work or the timing of the completion of the Work. All Changes shall be
subject to the prior written consent of Vendor. All Changes shall be documented
in a written order ("Change Order") which shall be executed by Owner and Vendor
------------
and shall contain any adjustments to pricing, Milestone or other aspect of the
Work as mutually agreed by the parties. Vendor shall promptly notify Owner of
any such requested Changes which may materially affect the operation and/or
maintenance of any System or any part thereof. In the event that the parties
cannot agree on a Change Order within fifteen (15) days of submission of a
Change Order by Owner to Vendor, the matter shall then be referred to dispute
resolution pursuant to Section 23. Nothing contained in this subsection is
intended to limit Vendor's right, from time to time, to make suggestions for
modifications to the Work or the Specifications, provided that in any such event
-------- ----
Owner, in its sole and absolute discretion pursuant to the terms of this
Contract may refuse to make any such modification or otherwise agree to issue a
Change Order incorporating any such Vendor suggestion.
[*] Certain material (indicated by an asterisk) has been omitted form this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
29
11.2 Cancellation. Owner may at any time cancel, in whole or in part, any
------------
Purchase Order or Change Order upon advance written notice to Vendor. In the
event of such cancellation, Owner shall pay to Vendor cancellation charges in
accordance with Exhibits B1 and B2.
SECTION 12. DISCONTINUED PRODUCTS AND CONTINUING PRODUCT SUPPORT
12.1 Notice of Discontinuation. For a period of [*] for the Switch and [*]
-------------------------
for all other Products furnished hereunder after the Effective Date, but in no
event less than [*] after the date of shipment, Vendor agrees to provide Owner,
and all Affiliates and Related Operators that have purchased Products hereunder,
not less than [*] notice before Vendor discontinues manufacturing of or support
for a Product ("Discontinued Products") furnished under this Contract. In
---------------------
respect of Products manufactured by a third party vendor, the notice period may
vary. Where Vendor offers a product for sale that is equivalent in Form, Fit and
Function in accordance with and pursuant to the Specifications, the notification
period may vary but in no event shall be less than [*]. In the case of each
Discontinued Product, Vendor shall furnish Products fully compatible with the
relevant System Elements within the System prior to the time that a Product is
discontinued during the appropriate [*] and [*] periods referenced above;
provided that, nothing herein shall bar the Vendor from discontinuing individual
items of Products as provided in and pursuant to this subsection. In the event
that Vendor discontinues a Product, Vendor will meet with Owner and use
reasonable, good faith efforts to develop a mutually acceptable transition plan
that takes into account Owner's existing investment in the item scheduled for
discontinuance.
In addition to repairs provided for under any applicable Warranty, Vendor
shall offer repair Services and repair parts in accordance with Vendor's repair
and repair parts practices and terms and conditions then in effect, for Vendor-
manufactured Equipment furnished pursuant to this Contract. Such repair Services
and repair parts shall be available while Vendor is manufacturing or stocking
such Products or repair parts, but in no event less than [*] for the Switch and
[*] for all other Products after such Product's discontinued availability
effective date. Vendor may use either the same or functionally equivalent
products or parts which are new, remanufactured, reconditioned or refurbished in
the furnishing of repairs or replacements under this Contract.
If during the agreed-to support period following the issuance of notice of
discontinuance, Vendor fails to provide repair parts and/or repair Services and
a functionally equivalent replacement has not been designated, Vendor shall so
advise Owner, to allow Owner to plan appropriately, and if Vendor is unable to
identify another source of supply for such repair parts or services, Vendor
shall, in addition to any other right or remedy available to Owner at law or in
equity, provide Owner, at no additional charge to Owner, upon request, with non-
exclusive licenses for Product manufacturing to the extent Vendor can grant such
licenses, so that Owner will have sufficient information,
[*] Certain material (indicated by an asterisk) has been omitted form this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
30
ability and rights to have such Discontinued Products manufactured, or obtain
such repair Service or repair parts from other sources. Such license shall
include appropriate non-disclosure and confidentiality covenants.
12.2 Discontinuation During Warranty Period. If Vendor discontinues the
--------------------------------------
availability of a Product during that Product's Warranty Period and Owner is
required to purchase a replacement Product to replace the Discontinued Product
in order to maintain the same functionality of the Discontinued Product in a
System, Vendor agrees to grant Owner an additional [*] discount to be applied
against the net price of all Products required to be purchased by Owner as
replacements for such Discontinued Product, which additional discount shall be
applied after the determination of the lowest price available to Owner pursuant
to this Contract.
12.3 Discontinuation After Warranty Period. If Vendor discontinues the
-------------------------------------
availability of a Product after that Product's Warranty Period, Owner shall be
afforded no less favorable treatment in terms of Vendor's manufacturer's
discontinuation programs offered to Vendor's other customers.
SECTION 13. SOFTWARE
13.1 RTU License. Upon delivery of the Software, but subject to payment of
-----------
the license fees specified in Exhibit A05, Owner is hereby granted a personal,
non-exclusive, fully paid-up, multi-site (capability to move Software from site
to site on prior notice to Vendor) right to use license for the Software ("RTU
---
License"), to operate the specific Equipment, processor or product line for
-------
which the licenses to use the Software are initially granted, or temporarily on
any comparable replacement if any such Equipment, processor or product line
becomes inoperative. Owner shall use such Software only for its own internal
business operation, or, in the case where the Software is purchased by or on
behalf of Affiliates or Related Operators, for the internal business operations
of such Affiliates and Related Operators. The RTU License grants Owner no right
to, and Owner will not, sublicense such Software or modify, decompile, reverse
engineer, or disassemble, or in any other manner decode Software furnished as
object code for any reason, including without limitation, to generate
corresponding source code provided in each of the Systems. Except as provided
below, no license is granted to Owner to use the Software outside of the United
States.
In the event that Owner wishes to use the Software on associated equipment
outside of the United States or to transfer Software to an affiliate or third
party transferee located outside the United States, Vendor shall not
unreasonably withhold its consent to such use or transfer, provided that Vendor
or the transferee, as the case may be, enters into an appropriate license
agreement with an affiliate of Vendor carrying on business in the territory in
which the Software is to be located, on terms substantially similar to the RTU
License terms set forth herein, provided, however, that Owner acknowledges and
agrees that support and maintenance obligations set forth herein are only
applicable for Software resident on Equipment located within the United States.
Support and maintenance Services
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
31
offered by Vendor's affiliates differs in various different territories, and
will be subject to the local practices maintained in such territory.
13.2 Owner's Obligations. Owner agrees that the Software, whether or not
-------------------
modified, and all copies thereof made by Owner, shall be treated as trade
secrets and proprietary to Vendor, its Subcontractors or its suppliers, as
appropriate and Owner shall:
(a) Utilize the Software solely in conjunction with a System; provided
--------
that Vendor acknowledges that the Software shall be integrated across interfaces
----
with systems, equipment and software provided by other suppliers and customers;
(b) Ensure that all copies of the Software shall, upon any reproduction by
Owner authorized by Vendor and whether or not in the same form or format as such
Software, contain the same proprietary, confidentiality and copyright notices or
legends which appear on the Software provided pursuant hereto; and
(c) Hold secret and not disclose the Software to any person, except to (i)
such of its employees, contractors, agents or affiliates that are involved in
the operation or management of a System and need to have access thereto to
fulfill their duties in such capacity, or (ii) other Persons who need to use
such Software to permit integration of a System with systems and software of
other suppliers and customers; provided that such persons agree, or are
-------- ----
otherwise obligated, to hold secret and not disclose the Software to the same
extent as if they were subject to this Contract, and provided further that if
any such Person is a competitor of Vendor involved in the manufacture of
communications equipment, software or related services, Vendor must approve such
use on a case-by-case basis on commercially reasonable terms and such use shall
be subject to an appropriate non-disclosure agreement.
(d) When and if Owner determines that it no longer needs the Software or
if Owner's license is canceled or terminated pursuant to the terms of this
Contract, return all copies of such Software to Vendor or follow reasonable
written disposition instructions provided by Vendor. If Vendor authorizes
disposition by erasure or destruction, Owner shall remove from the medium on
which Software resides all electronic evidence of the Software, both original
and derived, in such manner that prevents subsequent recovery of such original
or derived Software.
(e) Owner shall not copy Software embodied in firmware and unless
otherwise specifically provided in this Contract, Owner is not granted any right
to modify Software furnished by Vendor under this Contract.
13.3 Backwards Compatibility. Vendor represents and warrants (the
-----------------------
"Software Backwards Compatibility Warranty") that each Software Maintenance
------------------------------------------
Release, Software Upgrade and Software Enhancement will be Backwards Compatible.
[***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
32
13.4 Transfer and Relocation. (a) In the event Owner or any successor to
-----------------------
Owner's title in the Products (i) elects to transfer a Product to a third party,
and where such Product shall remain in place and used for substantially the same
purpose as used by Owner and where such third party resides in the United States
and is not a direct competitor of Vendor involved in the manufacture of
communications equipment, software or related services, or (ii) elects to
transfer Products to an affiliate, Owner may transfer its RTU License for the
Software furnished under this Contract for use with such Product, without the
payment of any additional Software right-to-use fees by the transferee. For
example, if the RTU License for the Software contains usage or per subscriber
limits, or the processor to be used by transferee requires additional memory or
hard disk space additional payments or purchases may be required. The following
conditions shall apply to transfers and relocations pursuant to this subsection
13.4:
(A) The right to use such Software may be transferred only together with
the Products with which Owner has a right to use such Software, and
such right to use the Software shall continue to be limited to use
with such Products;
(B) Before any such Software is transferred, Owner shall notify Vendor of
such transfer and the transferee shall have agreed in writing (a copy
of which shall be provided to Vendor) to keep the Software in
confidence and to corresponding conditions respecting possession and
use of Software as those imposed on Owner in this Contract; and
(C) 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 fees,
if any, associated with such Software warranty or maintenance
pursuant to this Contract.
(b) Except as otherwise provided in this Contract, Owner or any successor
to Owner's title in the Products shall have no right to transfer Software
furnished by Vendor under this Contract without the consent of Vendor, which
consent shall not be unreasonably withheld. If Owner or such successor elects to
transfer a Product purchased under this Contract for which it does not under
this Contract have the right to transfer related Software, Vendor agrees that
upon written request of the transferee of such Product, or of Owner or such
successor, Vendor shall not without reasonable cause fail to grant to the
transferee a license to use such Software with the Products, whether to be
located within the United States or elsewhere, upon payment of a relicensing fee
to Vendor on commercially reasonable terms acceptable to Vendor.
13.5 Termination and Survival. The rights and obligations of Owner under
------------------------
the RTU License shall survive the termination of this Contract, regardless of
the cause of termination provided Owner has met its material obligations
hereunder and has rendered all payments in accordance with this Contract. In the
event that Owner materially breaches its
33
obligations hereunder with respect to the RTU License, and if Vendor has
provided Owner with prior written notice describing the alleged material
breaches and given Owner a reasonable time (in no event less than thirty (30)
days) to cure any such breaches, Vendor may terminate Owner's RTU License. In
the event that Owner fails to pay applicable license fees, Vendor may terminate
Owner's right to use the Software to which such fees apply; provided that,
Vendor provided written notice of such breach to Owner and Owner failed to make
payment within ten (10) days from Vendor's notice thereof. Such terminated
rights shall be immediately reinstated upon payment of all applicable license
fees. In no event other than as set forth in this subsection 13.5 may Vendor
terminate Owner's right to use the Software. Notwithstanding any other provision
of this Contract, if there is a dispute, pending final resolution of such
dispute, all of Owner's rights under this Contract shall continue in full force
and effect, and Vendor will not terminate the RTU License, and so long as Owner
continues to pay Vendor applicable fees, Vendor will not terminate, suspend,
interrupt or delay maintenance and support of the Software.
13.6 Access to Source Codes. Vendor represents and warrants that as of the
----------------------
date hereof, Vendor has not established a Source Code escrow for any of its
existing customers. In the event that Vendor establishes a Source Code escrow
in the future which applies to any of the Software furnished to Owner hereunder,
Vendor shall add Owner as a beneficiary of such Source Code escrow, and Owner
shall be entitled to receive a copy of the escrowed Source Code in the event of
the occurrence of any of the events set out below. In addition to the
foregoing, Vendor shall immediately deliver and hereby grants Owner a right to
access the Source Code and to modify the Software (the "RTM License") for the
-----------
maintenance, enhancement and support of those Products purchased from Vendor and
owned or operated by Owner under the following circumstances, provided that any
such released Source Code shall be subject to the confidentiality provisions set
forth in this Contract:
(i) if Vendor becomes insolvent, makes a general assignment for
the benefit of creditors, files a voluntary petition in bankruptcy or an
involuntary petition in bankruptcy is filed against Vendor which is not
dismissed within sixty (60) days, or suffers or permits the appointment of
a receiver for its business, or its assets become subject to any proceeding
under a bankruptcy or insolvency law, domestic or foreign, or has
liquidated its business, or Vendor, or a business unit of Vendor that is
responsible for maintenance of the Software, ceases doing business without
providing for a successor, and Owner has reasonable cause to believe that
any such event shall cause Vendor to be unable to meet its Warranty service
or support requirements hereunder; or
(ii) if Vendor ceases to maintain or support a previously
supported version of the Software and Owner cannot obtain, with Vendor's
assistance (for example, by providing a third party with Source Code or by
any other appropriate method) the same support services Vendor is required
to provide under this Contract from another entity (either working with or
independently from Vendor) at a price that is equal to or less than the
prices for such support as provided herein, or there is a persistent and
material failure by Vendor to provide the
34
Warranty service or support it is required to provide pursuant to the terms
of this Contract.
13.7 Ownership of Intellectual Property. Vendor shall own all forms
----------------------------------
of intellectual property rights (including, but not limited to, patent, trade
secret, copyright and mask rights) pertaining to the Software, and shall have
the right to file for or otherwise secure and protect such rights. The
foregoing notwithstanding, the parties understand and agree that from time to
time Owner may independently devise, develop or otherwise create ideas or other
concepts for services or new products which are patentable or otherwise capable
of receiving protection from duplication. In such event, Owner shall have the
right to apply for a patent in accordance with applicable law, provided,
however, that notwithstanding this subsection, Vendor does not hereby relinquish
or release any of its intellectual property rights.
SECTION 14. SOFTWARE AND EQUIPMENT CHANGES
14.1 Software.
--------
14.1.1 Software Upgrades, Software Maintenance Releases, Software
----------------------------------------------------------
Enhancements and Combined Releases. During the Contract Term, Owner shall
----------------------------------
receive all base Software releases and all Software Maintenance Releases,
Software Upgrades, Software Enhancements and Software Combined Releases
applicable to Software for Products for which Owner has obtained a RTU License
at such times as they become generally available to Vendor's customers. Owner
shall also be entitled to receive Optional Software Features upon payment of the
appropriate fees determined in accordance with Exhibit A05. Owner may elect to
purchase such Optional Software Features on a per feature basis, or purchase
annual buy-out rights on a per market basis, permitting Owner to select those
features it wishes to deploy in the relevant market. During the Contract Term,
Vendor will use commercially reasonable efforts to work jointly with Owner and
Owner's third party equipment or service suppliers with respect to the
integration of such third party's equipment or services with Owner's System(s).
14.1.2 Notice. Vendor shall give Owner, or cause Owner to be given
------
not less than ninety (90) days prior written notice of the introduction of any
Software Enhancement release or any Software Combined Release or any optional
Software release. In addition, in each February and August of each year during
the term of this Contract, Vendor shall provide, or cause to be provided, to
Owner a forecast of future Software Enhancement releases, Software Upgrades, or
Software Combined Releases or any optional Software release, as the case may be,
then currently being developed by or on behalf of Vendor.
14.1.3 Installation, Testing and Maintenance. The installation and
-------------------------------------
testing of the Software by Vendor and the acceptance thereof by Owner shall be
performed in accordance with the criteria set forth in Exhibits L and O.
35
14.1.4 Software Fixes. In the event that any Software Maintenance
--------------
Release, Software Upgrade, Software Enhancement or Software Combined Release
supplied by Vendor during the term of this Contract has the effect of preventing
any System or any part thereof from satisfying, or performing in accordance with
the Specifications or the Exhibits or otherwise adversely affects the
functionality or features of any System or any part thereof, then Vendor shall
promptly retrofit or take such other corrective action as may be necessary to
ensure that any System or any such affected part, as modified to include each
such Software Maintenance Release, Software Upgrade, Software Enhancement or
Software Combined Release, shall satisfy, and perform in accordance with, the
Specifications and the Exhibits and restore all pre-existing functionality and
features as well as provide any new features and functionality provided by any
of the foregoing modifications, in each case without any charge to Owner (other
than payment of the applicable fees pursuant to the terms of this Contract).
Notwithstanding anything contained herein in this subsection to the contrary,
Owner shall be responsible for the cost of any additional Equipment required to
accommodate additional capacity, memory or processing requirements necessitated
by any new Software feature or Optional Software Feature which Owner elects to
use (provided such use by Owner is optional without losing the benefit of the
Software Maintenance Release or Software Upgrade) which are contained in any
such Software Upgrade, Software Enhancement or Software Combined Release;
provided, however, that Owner shall not be required to pay for any additional
Equipment required to accommodate additional capacity, memory or processing
requirements necessitated by implementation of a required Software Maintenance
Release, whether or not such Software Maintenance Release is issued as a stand-
alone release, or is contained within a Software Upgrade, Software Enhancement
or Software Combined Release.
14.2 Equipment.
---------
14.2.1 Equipment Upgrades. (a) Equipment Upgrades will be provided
------------------
to Owner by Vendor at no charge to Owner as provided in subsection 14.2.1(b)
below. Equipment Enhancements must be provided to Owner by Vendor, if requested
by Owner, and Owner is obligated to make payment therefor in an amount that is
specified on Exhibit A04. If Vendor at any time issues an Equipment Upgrade
which is combined with any Equipment Enhancement (collectively, the "Equipment
---------
Combined Release") to such Equipment, the Equipment Combined Release will be
----------------
provided at no charge to Owner unless and until Owner uses any of the Equipment
Enhancements included within the Equipment Combined Release, provided such use
by Owner of such Equipment is optional without losing the benefit of the
Equipment Upgrade.
(b) (i) After a Product has been shipped to Owner, if Vendor issues
an Equipment Upgrade or Equipment Enhancement, or where a modification to
correct an error in field documentation is to be introduced, Vendor will
promptly notify Owner of such change through Vendor's design change management
system or another Vendor notification procedure. Each change notification,
whether or not it bears a restrictive legend, will be subject to the
confidentiality obligations provided in subsection 26.18, except that such
information may be reproduced by Owner for Owner's use as required within the
System. If Vendor has engineered, furnished, and installed a Product which is
subject to an Equipment
36
Upgrade, Vendor will implement such change, at its sole cost and expense, if it
is announced within [*] for the Switch and [*] for all other Products from the
date of shipment of that Product, and subject to the reasonable review and
acceptance of Owner at such times as Owner reasonably determines that it needs
to review such Vendor decision, by either (A) modifying the Product at Owner's
site; (B) modifying the Product which Owner has returned to Vendor in accordance
with Vendor's reasonable instructions pursuant to and in accordance with the
terms of this Contract; or (C) replacing the Product requiring the change with a
replacement Product for which such change has already been implemented. If
Vendor has not engineered the original Product application and accordingly
office records are not available to Vendor, Vendor will provide the generic
change information and associated parts for Owner's use in implementing such
change.
(ii) In any of the instances described in clause (i) above, if Vendor
and Owner agree that a Product or part thereof subject to such change is readily
returnable, without incurring any significant time or expense, Owner, at its
expense, will remove and return such Product or part to Vendor's designated
facility within the United States and Vendor, at its sole expense, will
implement such change (or replace it with a Product or part for which such
change has already been implemented) at its facility and return such changed (or
replacement) Product or part at its sole cost and expense to Owner's designated
location within the United States. Any such reinstallation of Products which
were readily returnable will be performed by Owner at its sole expense, provided
such reinstallation can be done by Owner without incurring any significant time
or expense. In all other circumstances, Vendor shall provide such removal,
repair and reinstallation Services at its sole cost and expense.
(iii) If Owner does not make or permit Vendor to make an Equipment
Upgrade as stated above within the appropriate [*] or [*] period from the date
of change notification or such other period as Vendor may agree, subsequent
changes, repairs or replacements affected by the failure to make such change
may, at Vendor's option, be invoiced to Owner whether or not such subsequent
change, repair or replacement is covered under the warranty provided in this
Contract for such Product. If requested by Owner, Equipment Upgrades announced
more than the appropriate [*] or [*] period from the date of shipment will be
implemented at Owner's expense.
(iv) If Vendor issues an Equipment Enhancement after a Product has
been shipped to Owner, Vendor will promptly notify Owner of such change if it is
being offered to any of Vendor's customers. Except as otherwise set forth above
in subsection 14.2.1(b), when an Equipment Enhancement is requested by Owner,
the pricing set for such Equipment Enhancements will be at Vendor's standard
charges subject to the applicable discounts set forth in Exhibit A01.
(v) All change notifications for Equipment Upgrades and Equipment
Enhancements provided by Vendor to Owner pursuant to the terms of this Contract
must contain the following information: (A) a detailed description of the
change; (B) the reason for the change; (C) the effective date of the change; and
(D) the implementation schedule for such change, if appropriate.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
37
14.2.2 Notice. Vendor shall give, or shall cause to be given to,
------
Owner not less than ninety (90) days prior written notice of the introduction
of any Equipment Enhancement or any Equipment Combined Release. In addition, in
each February and August of each year during the Contract Term, Vendor shall
provide Owner with a forecast of future Equipment Enhancements to the Equipment
or Equipment Combined Releases then currently being developed by or on behalf of
Vendor.
14.2.3 Installation, Testing and Acceptance. The Installation and
------------------------------------
testing of the Equipment by Vendor and the acceptance thereof by Owner shall be
performed in accordance with the Exhibits and pursuant to the Milestones
contained in the Exhibits.
14.2.4 Equipment Fixes. In the event that any Equipment Upgrade or
---------------
Equipment Enhancement, directly or indirectly, supplied by Vendor during the
appropriate [*] or [*] period following the Effective Date or during the [*]
period following the date of shipment of such Equipment Upgrade or Equipment
Enhancement, has the effect of preventing any System or any part thereof from
satisfying, or performing in accordance with, the Specifications or otherwise
adversely affects the functionality, interoperability or features of any System,
or any part thereof then Vendor shall without any charge to Owner promptly
retrofit or take such other corrective action as may be necessary to assure that
any System or any such affected part, as modified to include each such Equipment
Upgrade and Equipment Enhancement, shall satisfy, and perform in accordance
with, the Specifications and restore all pre-existing functionality and features
as well as provide any features and functionality provided by any of the
foregoing modifications.
14.2.5 Equipment Backwards Compatibility Warranty. Vendor represents
------------------------------------------
and warrants (the "Equipment Backwards Compatibility Warranty") that each New
------------------------------------------
Equipment Release will be Backwards Compatible, provided that it is implemented
within the specified time provided with each New Equipment Release. [***]
14.2.6 3G1X. Vendor commits to deliver 1xRTT voice Hardware and
----
Software on or before [*]. Vendor plans on making 3xRTT voice Software available
in the [*]. Such 1xRTT and 3xRTT Software will address the following key
aspects:
i. Provide new and innovative data services implemented over packet data
network with CDMA,
ii. Support requirements for the deployment of high-speed wireless data
offerings with increased RF capacity, and
iii. Support the deployment of advanced wireless service offerings.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
38
14.2.7 System Capacity Guarantee. Vendor guarantees embedded sector
---------------------------------
erlang capacity according to the following table ("Capacity Guarantee").
[***]
Vendor's Capacity Guarantee as set forth above is based on the following
parameters:
1. [***]
2. Vendor must have performed RF Design and RF Optimization for each
cluster within such System.
3. The applicable Switch and BSC for such System must be loaded with
Vendor's recommended datafill.
4. User traffic within each cluster must be uniformly distributed.
5. Owner has deployed Vendor's half-rate paging within such System.
6. [***]
7. [***]
8. [***]
9. MCTA must be configured for balanced loading.
10. The Capacity Guarantee is based on Erlang B tables.
14.2.8 1xEV. Vendor plans to develop and provide to Owner technology
----
commonly referred to as 1xEV, or an equivalent CDMA based technology of a
published standard that has gained industry market acceptance and is capable of
the effective data rate and network capacity standards as stated in the
finalized publication of 1xEV.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
39
14.3 Notice of Developments.
----------------------
14.3.1 Vendor Developments. Vendor shall provide Owner, or cause to
-------------------
be provided to Owner, through Owner's chief technical officer (or in the absence
of such officer, to Owner's chief executive officer), with reasonable written
notice of any Product developments, innovations and/or technological advances
(collectively "Vendor Developments") relevant to the System simultaneous to
-------------------
giving such notice to any other customer or otherwise making any such Vendor
Development public; provided that Vendor shall not be obligated to provide Owner
-------- ----
such notice before any other customer if doing so would breach any contractual
obligation to any other customer, provided further that any such notice need not
include any information originated by another customer of Vendor which is
proprietary to such other customer of Vendor. For the purposes of this
subsection the term "Vendor" includes Vendor and its affiliates and
subsidiaries.
14.3.2 Participation in Testing. Owner has the right, but not the
------------------------
obligation, to witness and/or participate in any initial testing of Vendor
Developments; provided that any such initial testing of Vendor Developments
-------- ----
shall be subject to (i) scheduling as reasonably determined by Vendor, (ii) the
qualification that Owner's System meets the technical requirements for the
testing of such Vendor Development as reasonably determined by Vendor (or
otherwise that Owner is willing to update such System to meet such
requirements), (iii) Owner's acknowledgment that it shall be able to provide the
resources necessary to implement the initial testing for such Vendor
Development, and (iv) Owner and Vendor executing a verification office testing
agreement that identifies the scope, terms, pricing, responsibilities and
schedule related to the initial testing of such Vendor Development. Vendor
shall provide Owner at least thirty (30) days' prior written notice of its
intent to test any such Vendor Development and upon Owner's written request
Vendor shall allow Owner to participate in such testing upon terms and in a
testing environment reasonably acceptable to the parties at such time. Such
rights shall not apply to a Vendor Development originated by another customer of
Vendor which includes information which is proprietary to such other customer.
14.3.3 Quarterly Notices. Vendor shall make reasonable efforts to
-----------------
collect and distribute on a quarterly basis a list of new Software bugs,
problems, fixes, etc., provided that Vendor shall not be required to distribute
confidential information of any other customer.
SECTION 15. INTELLECTUAL PROPERTY
15.1 Intellectual Property. Neither Owner nor Vendor shall publish
---------------------
or use any advertising, sales promotion, press releases or publicity matters
relating to this Contract without the prior written approval of the other, in
accordance with Section 26.13.
15.2 Infringement. (a) Vendor agrees that it shall defend,
------------
indemnify and hold harmless, at its own expense, all suits and claims against
Owner, Affiliates and Related
40
Operators, and the respective officers, directors, employees and affiliates of
each of the foregoing (collectively, the "Owner Indemnified Parties"), for
-------------------------
infringement or violation of any patent, trademark, copyright, trade secret or
other intellectual property rights of any third party enforceable in the United
States or in any other territory where Vendor has approved the deployment or use
of Products under this Contract (collectively, "Intellectual Property Rights"),
----------------------------
covering, or alleged to cover, the Products or any component thereof. Vendor
agrees that it shall pay all sums, including without limitation, reasonable
attorneys' fees and other costs incurred at Vendor's written request or
authorization, which, in defense of, by final judgment or decree, or in
settlement of any suit or claim to which Vendor agrees, may be assessed against,
or incurred by, any of the Owner Indemnified Parties on account of such
infringement or violation, provided that the Owner Indemnified Parties involved
shall cooperate in all reasonable respects with Vendor and its attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; provided, however, that the Owner Indemnified Parties may, at
their own cost, participate in the investigation, trial and defense of such
lawsuit or action and any appeal arising therefrom. The parties shall cooperate
with each other in any notifications to insurers. If a claim for Losses (a
"Claim") is to be made by a party entitled to indemnification hereunder against
-----
Vendor, the party claiming such indemnification shall give written notice (a
"Claim Notice") to Vendor as soon as practicable after the party entitled to
------------
indemnification becomes aware of any fact, condition or event which may give
rise to Losses for which indemnification may be sought under this Contract,
provided, however, no delay on the part of the Owner Indemnified Parties in
notifying Vendor shall relieve Vendor from any obligation hereunder unless (and
then solely to the extent) Vendor is thereby materially prejudiced. If any
lawsuit or enforcement action is filed against any party entitled to the benefit
of indemnity hereunder, written notice thereof shall be given to Vendor as
promptly as practicable (and in any event within fifteen (15) calendar days
after the service of the citation or summons). Vendor shall be entitled, if it
so elects, (i) to defend such lawsuit or action, (ii) to employ and engage
attorneys of its own choice to handle and defend the same, at Vendor's cost,
risk and expense, and (iii) to compromise or settle such Claim, which compromise
or settlement shall be made only with the written consent of the Owner
Indemnified Parties involved (which may not be unreasonably withheld), unless
such compromise or settlement includes an unconditional release of any claims
against the Owner Indemnified Parties in which event such written consent of the
Owner Indemnified Parties shall not be required. If Vendor fails to assume the
defense of such Claim within fifteen (15) calendar days after receipt of the
Claim Notice, the Owner Indemnified Parties against which such Claim has been
asserted will (upon delivering notice to such effect to Vendor) have the right
to undertake, at Vendor's cost and expense, the defense, compromise or
settlement of such Claim on behalf of and for the account and risk of Vendor. In
the event an Owner Indemnified Party assumes the defense of the Claim due to the
Vendor's failure to assume the defense of such claim within fifteen (15)
calendar days, such Owner Indemnified Party will keep Vendor reasonably informed
of the progress of any such defense, compromise or settlement. Vendor shall be
liable for any settlement of any action effected pursuant to and in accordance
with this Contract and for any final judgment (subject to any right of appeal),
and Vendor agrees to indemnify and hold harmless the Owner Indemnified Parties
from and against any Losses by reason of such settlement or judgment.
41
(b) Vendor's obligation under this subsection shall not extend to alleged
infringements or violations that arise because the Products provided by Vendor
are used in combination with other products furnished by third parties and where
any such combination was not installed, recommended or approved by Vendor.
15.3 Vendor's Obligation to Cure. If in any such suit so defended, all or
---------------------------
any part of the Products or any component thereof is held to constitute an
infringement or violation of Intellectual Property Rights of others and its use
is enjoined, or if in respect of any claim of infringement or violation Vendor
deems it advisable to do so, Vendor shall at its sole cost, expense and option
take one or more of the following actions: (i) procure the right to continue
the use of the same without interruption for Owner and any Affiliates and
Related Operators; (ii) replace the same with non-infringing Products that meets
the Specifications in accordance with the terms of this Contract; or (iii)
modify said Products, any System or any component thereof so as to be non-
infringing, provided that the Products, any System or any component thereof as
modified meets all of the Specifications. In the event that Vendor is not able
to cure the infringement pursuant to clause (i), (ii) or (iii) in the
immediately preceding sentence, in addition to the other rights and remedies
provided in this Section 15, Vendor shall refund to Owner (or Affiliate or
Related Operator that have placed Purchase Orders under this Contact) the full
purchase price paid by Owner (or Affiliate or Related Operator) for such
infringing Product or feature, and Owner (or such Affiliate or Related Operator)
shall return to Vendor such infringing Product or feature; provided that, Vendor
shall only be obligated to refund such purchase price for a period (from the
effective date of the Contract) of [*] for Switch related Products and [*] for
other Products. For those infringing Products not readily returnable by Owner,
or where Owner cannot de-install and remove such infringing Products without
incurring significant time and expense, Vendor shall, at its expense, de-install
and remove such infringing Products.
15.4 Exclusions From Vendor's Obligations. Vendor's obligations under this
--------------- --------------------
Section 15 shall not apply to any infringement or violation of Intellectual
Property Rights that is caused by unauthorized modification of the Products, any
System or any component thereof by Owner or infringement that arises from use or
combination of the Products with other products not supplied or approved by
Vendor, or that arises from adherence to instructions to apply Owner's
trademark, trade name or other company identification to a Product, or any
infringement caused solely by Owner's use and maintenance of the Products other
than in accordance with the Specifications, except as authorized or permitted by
Vendor. Owner shall indemnify Vendor against all liabilities and costs,
including reasonable attorneys' fees, for defense and settlement of any and all
claims against Vendor for Owner's (and Affiliate's and Related Operator's)
infringements or violations described in this subsection.
15.5 Infringement Related To OEM Equipment. Vendor shall have no
-------------------------------------
liability whatsoever for any patent, copyright or any other intellectual
property right infringement arising from Owner's use of OEM Equipment, and
Vendor makes no express or implied warranty of non-infringement with respect
thereto. In the event of an
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
42
infringement claim by a third party alleging infringement of patent, trademark,
copyright or violation of trade secrets or proprietary rights because of, or in
connection with, OEM Equipment furnished pursuant to this Contract, Vendor shall
attempt to assign any of its indemnity rights for such infringement claim to
Owner. If Vendor is unable to assign such indemnity rights to Owner, Vendor
shall enforce its indemnity rights against the applicable OEM Equipment supplier
and pass through indemnity amounts to which Vendor and/or Owner is entitled, and
in such event Owner agrees to comply with any commercially reasonable
obligations required by the OEM Equipment supplier in order for Vendor to
enforce such rights.
15.6 Liability of Vendor. The liability of Vendor 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 Contract shall be limited to the specific undertakings
contained in this Section 15 and Section 20 of this Contract.
SECTION 16. DELAY
16.1 Liquidated Damages. The parties agree that damages for delay are
------------------
difficult to calculate accurately and not reasonably determinable at the time of
execution of this Contract, and, therefore, agree that liquidated damages (the
"Liquidated Damages") shall be paid for non-performance or late performance of
-------------------
Vendor's obligations to achieve a Guaranteed Substantial Completion Date, to
satisfy the Capacity Guarantee, or for Major Outages as described below, for
reasons not otherwise excused by Force Majeure or Owner's failure to satisfy its
obligations set out in this Contact. The parties agree that Liquidated Damages
are intended to compensate Owner for the delayed or late performance by Vendor
and are not a penalty.
16.2 Delay and Default for Substantial Completion. In the event Vendor
--------------------------------------------
fails to achieve (other than as permitted by this Contract) the Substantial
Completion of a System on or before the Guaranteed Substantial Completion Date
for such System or during a ten day cure period following such date, Vendor
shall pay [*] in arrears, commencing on the [*] after the Guaranteed Substantial
Completion Date, Liquidated Damages to Owner in an amount equal to [*] (pro-
rated on a daily basis for periods of time less than one week) of the total
amount of all Purchase Orders relating to the System with respect to which
Vendor has so failed, until the achievement of Substantial Completion; provided
that, in no event shall the amount of Liquidated Damages so paid in respect to
failure to achieve Substantial Completion of a System as set forth above exceed
[*] of the total amount of all Purchase Orders relating to the System with
respect to which Vendor has so failed.
16.3 Major Outage Damages. In the event that Vendor is delayed in
--------------------
achieving Final Acceptance by greater than [*] from the applicable Guaranteed
Substantial Completion Date, or such later date as the parties may agree upon,
for reasons solely (as such term is defined in the definition of Major Outage)
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
43
attributable to Vendor, and a Major Outage occurs after such period of time and
prior to Final Acceptance, Vendor shall be liable to Owner [*] in an amount
equal to [*] of the total amount of all Purchase Orders relating to the System
with respect to which Vendor has so failed for each Major Outage that occurs
during such time period, as Liquidated Damages; provided, however, that the
Liquidated Damages so paid in respect to this subsection shall not cumulatively
exceed a total of [*] of the net price of the Purchase Orders related to the
System so affected. The payment of Liquidated Damages in the form of purchase
credits as described herein constitutes Owner's sole and exclusive remedy in the
event of a Major Outage as described herein.
16.4 System Capacity Guarantee Remedy. [***]
--------------------------------
16.5 Limitation. The foregoing provisions concerning Liquidated Damages
----------
shall not be deemed to limit the amount payable by Vendor to Owner for breach of
contract or in tort, except for amounts payable on account of delay as
aforesaid, provided, however
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
44
that the payment of Liquidated Damages shall be Owner's sole remedy for delays
giving rise to the Vendor's obligation to pay Liquidated Damages.
16.6 Early Completion Bonus. With respect to a System, Vendor shall be
----------------------
entitled to an early completion bonus from the Owner in the event that
Substantial Completion with respect to such System occurs on or prior to the
date that is [*] prior to the Guaranteed Substantial Completion Date for such
System. Such early completion bonus shall be equal to [*] (pro-rated on a daily
basis for periods of time less than one week) of the total amount of all
Purchase Orders relating to such System, based on the number of days that
Substantial Completion occurs prior to the date that is [*] prior to the
Guaranteed Substantial Completion Date for such System.
16.7 Purchase Credits. Purchase credits provided to Owner under this
----------------
Contract shall not be used by Owner towards OEM Equipment or Services. Any
purchase credits provided to Owner under this Contract shall not reduce the
total price of any Purchase Order by more than [*]. Purchase credits not used
within [*] from the date such purchase credits arose shall be forfeited and
shall have no cash value, provided, however, that (i) in the event Owner has not
used all of the purchase credits on or prior to [*] prior to the expiration of
the Contract, Owner may increase its ability to reduce the total price of any
subsequent Purchase Order by an additional [*] (i.e., for a cumulative reduction
of the total value of such Purchase Orders by an amount not to exceed [*]). In
the event Owner has not used all of the purchase credits on or prior to the
termination or expiration of the Contract, for a period of [*] from the date of
such termination or expiration, Owner may offset such purchase credits against
any RTU License fees.
SECTION 17. FORCE MAJEURE
17.1 Excusable Delay. (a) If the performance of this Contract, or of any
---------------
obligation hereunder except for the obligations set forth in Section 5 is
prevented, restricted or interfered with by reason of fires, breakdown of plant,
labor disputes, embargoes, government ordinances or requirements, civil or
military authorities, acts of God or of the public enemy, acts or omissions of
carriers, inability to obtain necessary materials or services from suppliers, or
other causes beyond the reasonable control of the party whose performance is
affected ("Force Majeure"), then the party affected, upon giving prompt notice
-------------
to the other party, shall be excused from such performance on a day-for-day
basis to the extent of such prevention, restriction, or interference (and the
other party shall likewise be excused from performance of its obligations on a
day-for-day basis to the extent such party's obligations relate to the
performance so prevented, restricted or interfered with); provided that the
party so affected shall use reasonable efforts to avoid or remove such cause of
non-performance and both parties shall proceed to perform their obligations with
dispatch whenever such causes are removed or cease.
(b) The party claiming the benefit of excusable delay hereunder shall
(i)promptly notify the other party of the circumstances creating the failure or
delay and
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
45
provide a statement of the impact of such party failure or delay and (ii) use
reasonable efforts to avoid or remove such causes of nonperformance, excusable
failure or delay. If an event of Force Majeure prevents Vendor from performing
its obligations under this Contract for a period exceeding sixty (60) days,
Owner may, upon prior written notice to the other party, terminate this
Contract.
(c) In the event of a Force Majeure which the party claiming relief for
such event has used all best commercially reasonable efforts to resolve in
accordance with the terms of this Contract, upon the written request of either
party, the other party shall in good faith negotiate modifications, to the
extent reasonable and necessary, in scheduling and performance criteria in order
to reasonably address the impact of such Force Majeure.
SECTION 18. WARRANTIES
18.1 Equipment and Services Warranty. Vendor warrants that, with
-------------------------------
respect to each System, for a period of [*] from the date of Substantial
Completion, provided, however that if prior to Final Acceptance a Major Outage
occurs, the [*] period shall be extended by the number of days elapsed between
Substantial Completion and the date Owner signs the Certificate of Final
Acceptance (as so determined, the "Warranty Period"), all Equipment and Services
---------------
furnished under this Contract with respect to such System will be free of
Defects and Deficiencies and shall conform to the applicable portions of the
Specifications (the "Equipment and Services Warranty"), provided, however, that
-------------------------------
with respect to those Services for which a warranty is set forth in an Exhibit,
the warranty contained in the Exhibit shall supersede the general Services
warranty contained in this Section 18.1. With respect to OEM Equipment, Vendor
shall furnish such Products only on a pass-through warranty basis; provided,
however, that Vendor shall identify such Products to Owner before acceptance of
any Purchase Order which includes any such Products. The terms of the warranty
applicable to such Products shall be provided in an addendum to the Purchase
Order. Except as noted in Exhibit T2, all Products referenced in Exhibit T2
qualify as Vendor-warranted Products. Vendor's obligations with respect to the
Equipment and Services Warranty shall be to attempt first to repair or replace
at no additional cost, any defective Equipment or correct any deficient
Services. If, after using its best commercially reasonable efforts to repair or
replace such Product and after consultation with and with the consent of Owner,
which consent shall not be unreasonably withheld, Vendor determines that it is
unable to repair, replace or otherwise correct such defect, Vendor shall provide
a credit or refund based on the original purchase price, and installation
charges if installed by Vendor. If, as a result of the Defect and Deficiency,
the Product fails to operate in accordance with the Specifications which causes
the System to fail to materially operate in accordance with its Specifications,
a refund shall be paid to Owner on account of the purchase price for the total
System, less a pro-rata discount calculated with regard to the period of time
during the Warranty Period that Owner operated the System in In Revenue Service.
For purposes of calculating such pro rata discount, the period of time Owner
would have been able to operate the System in In Revenue Service shall be [*]
from Substantial Completion for the Switch and [*] from Substantial Completion
for all other Products. In the event that Vendor pays a refund
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
46
hereunder, Owner shall return such Products to Vendor at Vendor's sole cost and
expense. The Warranty Period for all Equipment or Services repaired, replaced or
corrected under the Equipment and Services Warranty shall be the longer of [*]
from the date of delivery of the repaired or replacement Equipment or from the
completion of the corrected Services, as applicable, or (ii) or the unexpired
term of the Warranty Period. The Warranty Period for Equipment purchased as
spares shall be [*] from installation of such Equipment.
For those Products not readily returnable by Owner, or where Owner cannot
remove and reinstall the Products without incurring significant time and
expense, and where Vendor elects to repair or replace the Product, Vendor shall
repair or replace the Product at Owner's Site. In the event Vendor does the
repair work at Owner's site, Vendor shall be responsible for replacement of
cable and wire Products, and for reasonable Site restoration. If Vendor has
elected to repair or replace a defective Product, and the Product is readily
returnable by Owner without incurring significant work or expense, Owner is
responsible for removing and reinstalling the Products. Products returned for
repair or replacement will be accepted by Vendor only in accordance with its
instructions and procedures for such returns. The transportation expense
associated with returning such Product to Vendor shall be borne by Owner.
Vendor shall pay the cost of transportation of the repaired or replacing Product
to the return destination designated by Owner. Defective or nonconforming
Products or parts which are replaced hereunder shall become Vendor's property.
Vendor may use either the same or functionally equivalent new, remanufactured,
reconditioned or refurbished Products or parts in the furnishing of repairs or
replacements under this Contract, provided that such Products satisfy the
Specifications.
18.2 Expansions Warranty. Vendor warrants that, with respect to Products
-------------------
and Services constituting Expansions (including Expansions to a System, or
Expansions or growth not part of a System, and all other purchased Products)
furnished under this Contract will be free of Defects and Deficiencies and shall
conform the applicable portions of the Specifications (the "Expansions
----------
Warranty"). The warranty period with respect to such Products and Services
--------
shall be [*] from the date of installation completion or completion of Services,
as the case may be (the "Expansions Warranty Period"). With respect to OEM
--------------------------
Equipment, Vendor shall furnish such Products only on a pass-through warranty
basis; provided, however, that Vendor shall identify such Products to Owner
before acceptance of any Purchase Order which includes any such Products. The
terms of the warranty applicable to such Products shall be provided in an
addendum to the Purchase Order. Except as noted in Exhibit T2, all Products
referenced in Exhibit T2 qualify as Vendor-warranted Products. Vendor's
obligations with respect to the Expansions Warranty shall be to attempt first to
repair or replace at no additional cost, any defective Equipment or correct any
deficient Services. If, after using its best commercially reasonable efforts to
repair or replace such Product and after consultation with and with the consent
of Owner, which consent shall not be unreasonably withheld, Vendor determines
that it is unable to repair, replace or otherwise correct such defect, Vendor
shall provide a credit or refund based on the original purchase price, and
installation charges if installed by Vendor. The warranty period for all
Equipment or Services repaired, replaced or corrected under the
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
47
Expansions Warranty shall be the longer of one (1) year from the date of
delivery of the repaired or replacement Equipment or from the completion of the
corrected Services, as applicable, or (ii) or the unexpired term of the
Expansions Warranty Period. The Warranty Period for Equipment purchased as
spares shall be [*] from shipment of such Equipment.
For those Products not readily returnable by Owner, or where Owner cannot
remove and reinstall the Products without incurring significant time and
expense, and where Vendor elects to repair or replace the Product, Vendor shall
repair or replace the Product at Owner's Site. In the event Vendor does the
repair work at Owner's site, Vendor shall be responsible for replacement of
cable and wire Products, and for reasonable Site restoration. If Vendor has
elected to repair or replace a defective Product, and the Product is readily
returnable by Owner without incurring significant work or expense, Owner is
responsible for removing and reinstalling the Products. Products returned for
repair or replacement will be accepted by Vendor only in accordance with its
instructions and procedures for such returns. The transportation expense
associated with returning such Product to Vendor shall be borne by Owner.
Vendor shall pay the cost of transportation of the repaired or replacing Product
to the return destination designated by Owner. Defective or nonconforming
Products or parts which are replaced hereunder shall become Vendor's property.
Vendor may use either the same or functionally equivalent new, remanufactured,
reconditioned or refurbished Products or parts in the furnishing of repairs or
replacements under this Contract, provided that such Products satisfy the
Specifications.
18.3 Software Warranty. Vendor warrants that, with respect to each System
-----------------
for the Warranty Period, all Software will be free of Defects and Deficiencies
and shall conform to the applicable portions of the Specifications (the
"Software Warranty"). Vendor's obligations with respect to the Software
------------------
Warranty shall be to attempt first to repair or replace at no additional cost,
any defective Software. If, after using its best commercially reasonable
efforts to repair or replace such Software and after consultation with and with
the consent of Owner, which consent shall not be unreasonably withheld, Vendor
determines that it is unable to repair, replace or otherwise correct such
defect, Vendor shall provide a credit or refund based on the original purchase
price, and installation charges if installed by Vendor. If, as a result of the
Defect and Deficiency, the Software fails to operate in accordance with the
Specifications which causes the System to fail to materially operate in
accordance with its Specifications, a refund shall be paid to Owner on account
of the purchase price for the total System, less a pro rata discount calculated
with regard to the period of time during the Warranty Period that Owner operated
the System in In Revenue Service. For purposes of calculating such pro rata
discount, the period of time Owner would have been able to operate the System in
In Revenue Service shall be [*] from Substantial Completion for the Switch and
[*] from Substantial Completion for all other Products. In the event that Vendor
pays a refund hereunder, Owner shall return such Products to Vendor. The
warranty period for all Software so corrected or replaced under the Software
Warranty shall be the longer of one (1) year from the date of delivery of the
repaired or replacement Software, or (ii) or the unexpired term of the Warranty
Period. Vendor shall be solely responsible for all costs and expenses incurred
by Owner or Vendor in connection with the de-installation, removal and
transportation of defective Software
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
48
under the Software Warranty and for the transportation and installation of
repaired, corrected or replacement Software, including without limitation any
additional or upgraded Equipment or processing capability necessary to run or
operate such repaired, corrected or replacement Software. The Warranty Period
with respect to Software Maintenance Releases, Software Upgrades, Software
Enhancements and Software Combined Releases shall be [*] from the successful
installation of such Software Maintenance Releases, Software Upgrades, Software
Combined Releases and Software Enhancements.
18.4 [intentionally deleted]
18.5 Year 2000 Warranty. Vendor warrants that, notwithstanding any other
------------------
warranty provided to Owner pursuant to this Contract, during the period
commencing on the date that the applicable Software Warranty Period commences
and ending on January 1, 2004, the Software will (a) process calendar dates
falling on or after January 1, 2000, with substantially the same functionality
as such Software processes calendar dates falling on or before December 31,
1999, and (b) provide substantially the same functionality with respect to the
introduction of records containing dates falling on or after January 1, 2000, as
it provides with respect to the introduction of records containing dates falling
on or before December 31, 1999 (the "Year 2000 Warranty"). All of the foregoing
------------------
functionality shall be known as "Year 2000 Capability". In the event Owner has
--------------------
or purchases more than one version of Software, such versions of Software, if
they are intended by Vendor to interoperate, will be compatible and interoperate
in such manner as to process between them, as applicable, date related data
correctly as described herein. All of the foregoing functionality shall be
known as "Year 2000 Interoperability". The foregoing sets forth an additional
--------------------------
warranted specification for Software developed by Vendor that Vendor has
identified as having Year 2000 Capability. The failure of such Software to meet
such specification during the Year 2000 Warranty Period shall, to the extent the
Software remains then subject to warranty protection, entitle Owner to the
remedies set out in this section. Nothing in the foregoing shall be deemed to
make Vendor responsible for the Year 2000 Capability or Year 2000
Interoperability of any third party software interoperating or intended to
interoperate with Software developed by Vendor. Owner and or the manufacturer
or other supplier of such third party software shall be responsible for such
compliance and assuring the ability of such software to successfully operate
while interoperating with Software developed by Vendor.
18.6 Warranty Claim Procedures. (a) If Owner claims a breach of any
-------------------------
warranty, it shall notify Vendor of the claimed breach within a reasonable time
after its determination that a breach has occurred. Owner shall allow Vendor to
inspect the Equipment, Software, Services, or the System, as the case may be,
on-site in order to effect the necessary repairs.
(b) Vendor shall respond to such warranty claims for warranty Services in
accordance with the procedures outlined in Exhibits T1 and T2.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
49
18.7 Technical Assistance. Vendor shall maintain a technical assistance
--------------------
center and shall have technical support available to Owner in accordance with
the requirements set forth in Exhibit T1.
18.8 Scope of Warranties. Unless otherwise stated herein, the Warranties
-------------------
shall not apply to:
18.8.1 defective conditions or nonconformities to the extent resulting
from the following, if not consistent with applicable Specifications:
unauthorized Owner modifications, misuse, neglect, accident, abuse, improper
wiring, repairing, splicing, alteration, installation, storage, maintenance or
failure of Owner to apply previously applicable Vendor modifications or
corrections;
18.8.2 any Equipment, Services or Software damaged by accident or
disaster, including without limitation, fire, flood, wind, water, lightning or
power failure other than to the extent that any such Equipment, Services or
Software should in accordance with the Specifications be able to withstand any
such events; or
18.8.3 non-integral items normally consumed in operation or which has a
normal life inherently shorter than the Warranty Periods (e.g., fuses, lamps,
----
magnetic tape); or
18.8.4 damages or defects resulting directly from third party equipment,
provided that this shall in no event limit Vendor's obligations as to
interoperability pursuant to the terms of this Contract;
18.8.5 Equipment which have had their serial numbers or months and year of
manufacture removed or obliterated by Owner; or
18.8.6 failures or deficiencies in BTS performance or System optimization
resulting solely from changed environmental conditions or unauthorized changes
to the System by Owner, or changes not consented to by Owner including, but
not limited to, the growth of trees and other foliage, the erection of
buildings, and interference from third party radio transmissions not otherwise
engineered for by Vendor;
except when any such damage or defects are made, done or caused by Vendor or any
of its Subcontractors, their respective agents and employees.
18.9 Third Party Warranties. If Vendor purchases or subcontracts for the
----------------------
manufacture of any part of a System or the performance of any of the Services to
be provided hereunder from a third party, the warranties given to Vendor by such
third party shall inure, to the extent assigned to Owner pursuant to this
Section 18 or permitted by law, to the benefit of Owner, and Owner shall have
the right, at its sole discretion, to enforce
50
such warranties directly and/or through Vendor. The warranties of such third
parties shall be in addition to and shall not, unless otherwise expressly stated
herein, be in lieu of any warranties given by Vendor under this Contract.
18.10 Additional Sites. In the event that under the remedy provisions of
----------------
this Section 18 Vendor is required to provide additional MSC and/or BTS's
requiring additional Sites, Owner shall be responsible for all Site Acquisition.
18.11 EXCLUSIVE REMEDIES. THE FOREGOING EQUIPMENT, SERVICES, SOFTWARE AND
------------------
EXPANSIONS WARRANTIES AND REMEDIES ARE EXCLUSIVE FOR THE PURPOSES OF ANY BREACH
BY VENDOR OF ANY SUCH WARRANTY 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.
SECTION 19. INSURANCE
19.1 Insurance. Vendor shall maintain insurance in accordance with the
---------
provisions set forth in Exhibit C.
SECTION 20. INDEMNIFICATION AND LIMITATION OF LIABILITY
20.1 Indemnity. Each party agrees to indemnify, defend and hold harmless
---------
the other party and its affiliates and their respective directors, officers,
employees, agents, successors and assigns, from Losses and threatened Losses
arising from, in connection with, or based on allegations of, any of the
following:
(a) failure to observe or perform any duties or obligations to
Subcontractors or any third parties within the reasonable
contemplation of this Contract;
(b) the death or bodily injury of any agent, employee, customer, business
invitee or any other person caused by the negligence, willful
misconduct or strict liability of such party, its subcontractor or its
or their respective employees, contractors, agents or representatives;
provided that, Owner shall have no liability for any act or omission
of Vendor or any Subcontractor, and Vendor shall have no liability for
any act or omission of Owner or any subcontractor of Owner that is not
a Subcontractor of Vendor.
(c) the damage, loss or destruction of any real or tangible personal
property caused by the negligence, willful misconduct or strict
liability of such party, its subcontractor or its or their respective
employees, contractors, agents or representatives; provided that,
51
Owner shall have no liability for any act or omission of Vendor
or any Subcontractor, and Vendor shall have no liability for any
act or omission of Owner or any subcontractor of Owner that is
not a Subcontractor of Vendor; or
(d) any claim, demand, charge, action, cause of action or other
proceeding asserted against the other party but arising out of or
resulting from an act or omission of such party, its
subcontractor or its or their respective employees, contractors,
agents or representatives in its or their respective capacities
as an employer; provided that, Owner shall have no liability for
any act or omission of Vendor or any Subcontractor, and Vendor
shall have no liability for any act or omission of Owner or any
subcontractor of Owner that is not a Subcontractor of Vendor.
20.2 Claim for Losses. If a Claim is to be made by a party entitled
----------------
to indemnification hereunder, the party claiming such indemnification shall give
a Claim Notice as soon as practicable after the party entitled to
indemnification becomes aware of any fact, condition or event which may give
rise to Losses for which indemnification may be sought under this Contract,
provided, however, no delay on the part of the party seeking indemnification
shall relieve the party against whom indemnification is sought from any
obligation hereunder unless (and then solely to the extent) such party is
thereby materially prejudiced. If any lawsuit or enforcement action is filed
against any party entitled to the benefit of indemnity hereunder, written notice
thereof shall be given to the other party as promptly as practicable (and in any
event within fifteen (15) calendar days after the service of the citation or
summons). The indemnifying party shall be entitled, if it so elects, (i) to
defend such lawsuit or action, (ii) to employ and engage attorneys of its own
choice to handle and defend the same, at such party's cost, risk and expense,
and (iii) to compromise or settle such Claim, which compromise or settlement
shall be made only with the written consent of the party claiming such
indemnification (which may not be unreasonably withheld), unless such compromise
or settlement includes an unconditional release of any and all claims against
the party claiming such indemnification in which event such written consent
shall not be required. If the party against whom indemnification is sought
fails to assume the defense of such Claim within fifteen (15) calendar days
after receipt of the Claim Notice, the party claiming such indemnification
against which such Claim has been asserted will (upon delivering notice to such
effect) have the right to undertake, at the other party's expense, the defense,
compromise or settlement of such Claim on behalf of and for the account and risk
of the party against whom indemnification is sought. In the event the party
claiming such indemnification assumes the defense of the Claim, such party will
keep the other party reasonably informed of the progress of any such defense,
compromise or settlement. The indemnifying party shall be liable for any
settlement of any action effected pursuant to and in accordance with this
Contract and for any final judgment (subject to any right of appeal), and such
party agrees to indemnify and hold harmless the party claiming indemnification
from and against any Losses by reason of such settlement or judgment.
52
20.3 Limitation On Vendor's Liability. THE ENTIRE LIABILITY OF
--------------------------------
VENDOR FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF OWNER OR ANY OTHER PERSON OR
ENTITY ARISING OUT OF THIS CONTRACT, OR THE USE OR PERFORMANCE OF ANY PRODUCT OR
SERVICE, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT OR TORT,
INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL BE EXPRESSLY SET
FORTH HEREIN AND AS FOLLOWS:
1. FOR INFRINGEMENT, THE REMEDIES SET FORTH IN SECTIONS 15, WHICH SHALL
BE LIMITED TO AN AMOUNT EQUAL TO [*] OF THE AGGREGATE
AMOUNT OF ALL PURCHASE ORDERS ISSUED UNDER THIS CONTRACT;
2. FOR THE NON-PERFORMANCE OF PRODUCTS OR SERVICES DURING THE WARRANTY
PERIOD, THE REMEDIES SET FORTH IN THE APPLICABLE CLAUSE OF SECTION 18;
3. THE LIQUIDATED DAMAGES PROVIDED FOR THE FIRST SYSTEM UNDER THIS
CONTRACT, SHALL NOT EXCEED THE AMOUNTS AS SET FORTH IN SECTION 16.
THE LIQUIDATED DAMAGES PROVIDED IN SECTION 16 FOR ALL SYSTEMS UNDER
THIS CONTRACT SHALL NOT EXCEED THE GREATER OF EITHER (i) THE AMOUNTS
SET FORTH IN SECTION 16 WITH RESPECT TO THE FIRST SYSTEM, OR (ii) AN
AMOUNT EQUAL TO [*] OF THE AGGREGATE AMOUNT OF ALL FULFILLED
PURCHASE ORDERS WITH RESPECT TO ALL SYSTEMS; PROVIDED THAT FOR
PURPOSES OF QUANTIFYING THE DAMAGES FOR A FAILURE TO SATISFY THE
CAPACITY GUARANTEE, THE ADDITIONAL EQUIPMENT FURNISHED BY VENDOR AT NO
CHARGE TO OWNER SHALL BE VALUED AT THE PRICES FOR SUCH EQUIPMENT SET
FORTH IN THIS CONTRACT AND, AS SO VALUED, SHALL BE DEEMED TO BE
DAMAGES FOR PURPOSES OF THIS SUBSECTION AND;
4. EXCEPT AS PROVIDED IN PARAGRAPH 5 BELOW, FOR EVERYTHING OTHER THAN AS
SET FORTH ABOVE, VENDOR'S TOTAL LIABILITY TO OWNER, WHETHER IN
CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND
STRICT LIABILITY) SHALL BE LIMITED TO AN AMOUNT EQUAL TO [*] OF THE
AGGREGATE AMOUNT OF ALL PURCHASE ORDERS ISSUED UNDER THIS CONTRACT.
5. THE LIMITATION SET FORTH IN PARAGRAPH 4 ABOVE SHALL NOT APPLY WITH
RESPECT TO (i) CLAIMS OF BREACH OF CONFIDENTIALITY, (ii) CLAIMS
SUBJECT TO INDEMNIFICATION
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
53
PURSUANT TO SUBSECTION 20.1 ABOVE, OR (iii) FAILURE TO COMPLY WITH
APPLICABLE LAWS.
20.4 Limitation On Owner's Liability. THE ENTIRE LIABILITY OF OWNER
------------------------------
FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF VENDOR OR ANY OTHER PERSON OR ENTITY
ARISING OUT OF THIS CONTRACT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH
OF CONTRACT OR TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL
BE EXPRESSLY SET FORTH HEREIN AND AS FOLLOWS
1. EXCEPT AS PROVIDED IN PARAGRAPH 2 BELOW, THE ENTIRE LIABILITY OF OWNER
FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF VENDOR OR ANY OTHER PERSON
OR ENTITY ARISING OUT OF THIS CONTRACT, WHETHER IN AN ACTION FOR OR
ARISING OUT OF BREACH OF CONTRACT OR TORT, INCLUDING NEGLIGENCE,
INDEMNITY OR STRICT LIABILITY, SHALL NOT EXCEED AN AGGREGATE OF
[*].
2. THE LIMITATION SET FORTH IN PARAGRAPH 1 ABOVE SHALL NOT APPLY WITH
RESPECT TO (i) CLAIMS OF BREACH OF CONFIDENTIALITY; (ii) OBLIGATIONS
UNDER SECTION 13 BY OWNER, AFFILIATES OR RELATED OPERATORS; (iii)
CLAIMS SUBJECT TO INDEMNIFICATION PURSUANT TO SUBSECTION 20.1 ABOVE;
(iv) FAILURE TO COMPLY WITH APPLICABLE LAWS; OR (v) PAYMENT
OBLIGATIONS UNDER SECTIONS 2.1 AND 5.3 UNDER THIS CONTRACT.
20.5 NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, NEITHER
PARTY, NOR THEIR AFFILIATES NOR THEIR EMPLOYEES, DIRECTORS, OFFICERS AND
SUPPLIERS SHALL BE LIABLE FOR THE OTHER PARTY'S INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS
CONTRACT OR THE USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES, EXCEPT EITHER
PARTY'S OBLIGATIONS RELATING TO CONFIDENTIALITY AND OWNER'S (OR AFFILIATE'S OR
RELATED OPERATOR'S) BREACH OF VENDOR'S SOFTWARE LICENSE AS SPECIFIED IN SECTION
13. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.
SECTION 21. REPRESENTATIONS AND WARRANTIES
21.1 Representations and Warranties of the Parties. The parties
---------------------------------------------
hereby represent and warrant as follows:
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filied separately with the Securities and Exchange Commission.
54
21.1.1 Due Organization. Each party represents and warrants to the
----------------
other party that the representing party is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own and
operate its business and properties and to carry on its business as such
business is now being conducted and is duly qualified to do business in all
jurisdictions in which the transaction of its business in connection with
the performance of its obligations under this Contract makes such
qualification necessary or required.
21.1.2 Due Authorization; Binding Obligation. Each party represents
-------------------------------------
and warrants to the other party that the representing party has full
corporate power and authority to execute and deliver this Contract and to
perform its obligations hereunder, and the execution, delivery and
performance of this Contract by the representing party have been duly
authorized by all necessary corporate action on the part of the party; this
Contract has been duly executed and delivered by such party and is the
valid and binding obligation of the party enforceable in accordance with
its terms, except as enforcement thereof may be limited by or with respect
to the following: (i) applicable insolvency, moratorium, bankruptcy,
fraudulent conveyance and other similar laws of general application
relating to or affecting the rights and remedies of creditors; (ii)
application of equitable principles (whether enforcement is sought in
proceedings in equity or at law); and (iii) provided the remedy of specific
enforcement or of injunctive relief is subject to the discretion of the
court before which any proceeding therefore may be brought.
21.1.3 Non-Contravention. Each party represents and warrants to the
-----------------
other party that the execution, delivery and performance of this Contract
by the representing party and the consummation of the transactions
contemplated hereby will not contravene its certificate of incorporation or
by-laws and will not conflict with or result in (i) a breach of or default
under any material indenture, mortgage, lease, agreement, instrument,
judgment, decree, order or ruling applicable to it or by which it or any of
its properties is bound or affected, or (ii) a breach by the representing
party of any Applicable Law.
21.1.4 Regulatory Approvals. Vendor represents and warrants to Owner
--------------------
that all authorizations by, approvals or orders by, consents of, notices
to, filings with or other acts by or in respect of any Governmental Entity
or any other Person required in connection with the execution, delivery and
performance of this Contract by Vendor have been obtained or shall be
obtained in due course.
21.1.5 Non-Infringement. Vendor represents and warrants to Owner that
----------------
to the best of Vendor's knowledge after reasonable investigation, as of the
Effective Date there are no actual claims or threatened or actual suits in
connection with patents or other Intellectual Property Rights that could
materially adversely affect it's Vendor's ability to perform its
obligations under this Contract.
55
21.1.6 Requisite Knowledge. Vendor represents and warrants to Owner
-------------------
that that Vendor has all requisite knowledge, know-how, skill, expertise
and experience to satisfy its obligations in accordance with the terms of
this Contract.
21.1.7 Financial Capacity. Vendor represents and warrants to Owner
------------------
that Vendor has the financial, management and manufacturing capacity and
capabilities to satisfy its obligations in a timely manner in accordance
with the terms of this Contract.
SECTION 22. TITLE AND RISK OF LOSS
22.1 Title. Title to Equipment shall pass to Owner upon delivery of
-----
such Equipment to the location specified in the Exhibits. Owner consents without
qualification to the sale of receivables by Vendor without further notice and,
subject to the execution and delivery by the purchaser of such receivables of a
confidentiality and nondisclosure agreement satisfactory to Owner, such consent
not to be unreasonably withheld, permits the disclosure of this Contract and
Exhibits to the purchaser of the receivables as necessary to facilitate such
sale.
22.2 Risk of Loss. Risk of loss or damage of any Products furnished
------------
to Owner in connection with this Contract shall pass from Vendor to Owner upon
the later of (i) delivery of such Products to the Sites; or, (ii) if Vendor is
responsible for Site Construction, the date of the Site Construction Substantial
Completion Certificate; provided that during the period a party has the risk of
loss or damage to an item, nothing in this section shall relieve the other party
of responsibility for loss or damage to the item resulting from the acts or
omissions of the other party, its employees, or agents.
SECTION 23. DISPUTE RESOLUTION
23.1 Dispute Resolution. In the event any controversy, claim,
------------------
dispute, difference or misunderstanding between Owner and Vendor arises out of
or relates to this Contract, any term or condition hereof, any of the Work to be
performed hereunder or in connection herewith, each party shall designate
managers to meet and negotiate in good faith in an attempt to amicably resolve
such controversy, claim, dispute, difference or misunderstanding in writing.
Such managers shall meet for this purpose within ten (10) Business Days, or such
other time period mutually agreed to by the parties, after written notice from
either party. If the parties are unable to resolve the controversy, claim,
dispute, difference or misunderstanding through good faith negotiations within
ten (10) Business Days after such meeting or meetings, each party shall, within
five (5) Business Days after the expiration of such ten (10) Business Day
period, prepare a written position statement which summarizes the unresolved
issues and such party's proposed resolution. Such position statement shall be
delivered by Vendor to Owner's Chief Executive Officer and by Owner to Vendor's
corresponding officer or representative for resolution within (5) Business Days,
or such other time period mutually agreed to by the parties.
56
23.2 Tolling. All applicable statutes of limitation shall be tolled
-------
to the extent permitted by Applicable Law while the dispute resolution
procedures specified in this Section are pending, and nothing herein shall be
deemed to bar any party from taking such action as the party may reasonably deem
to be required to effectuate such tolling.
SECTION 24. TERMINATION AND EVENTS OF DEFAULT
24.1 Termination Without Cause. Owner may, at its sole option,
-------------------------
terminate this Contract, in its entirety, for convenience upon ninety (90) days'
prior written notice at any time. Any Purchase Orders issued prior to any such
termination above shall remain in effect and shall be fulfilled to the extent
that such orders are outstanding as of the date of such termination.
24.2 Termination for Cause. Owner shall have the right to terminate
this Contract in its entirety (except as otherwise set forth in clause (g)
below) without any penalty or payment obligation, except as provided in
subsection 24.5 below, upon the occurrence of any of the events of default (each
a "Vendor Event of Default") as set forth below:
-----------------------
(a) Vendor (i) files a voluntary petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it that is not dismissed
within sixty (60) days of such involuntary filing, (ii) admits the material
allegations of any petition in bankruptcy filed against it, (iii) is
adjudged bankrupt, (iv) is unable generally to pay its debts as they
mature, (v) makes a general assignment for the benefit of its creditors, or
if a receiver is appointed for all or a substantial portion of its assets
and is not discharged within sixty (60) days after his appointment, or (vi)
Vendor commences any proceeding for relief from its creditors in any court
under any state insolvency statutes; or
(b) Vendor disregards or violates any Applicable Laws or Applicable
Permits which has a material adverse effect on the business, financial
condition or operations of Owner or on any of its Systems ("Material
--------
Adverse Effect"); or
--------------
(c) Vendor allows material Defects and Deficiencies to exist; or
(d) Vendor fails to fulfill its obligations with respect to the
satisfaction, discharge or bonding of liens as set forth herein; or
(e) Vendor abandons or ceases for a period in excess of thirty (30)
days its performance of the Work (except as a result of Force Majeure or a
casualty which is fully covered by insurance or as to which other
provisions reasonably acceptable to Owner are being diligently pursued); or
57
(f) Vendor assigns or subcontracts Work other than as provided for in
this Contract which has a Material Adverse Effect; or
(g) Vendor misses the Guaranteed Substantial Completion Date for any
given System by a period [*]; provided that in such case Owner shall have
-------- ----
the right, but not the obligation, to terminate this Contract with respect
to only that System in which such delay occurred; and provided further that
such failure to achieve such date was not caused by (i) a Force Majeure
event and/or (ii) any act or omission of Owner; or
(h) if an event of Force Majeure prevents Vendor from performing its
obligations under this Contract for a period [*], Owner may, upon prior
written notice to Vendor, terminate this Contract in accordance with the
Force Majeure provisions above; or
(i) Vendor otherwise materially breaches any provision of this
Contract.
24.3 Remedies. (a) If any of Vendor Events of Default exists, Owner
--------
may, in addition to and without prejudice to any other rights or remedies of
Owner in this Contract or at law or in equity, terminate this Contract upon
written notice to Vendor; provided, however, that Owner shall have first
-------- -------
provided to Vendor the following periods of notice and opportunity to cure:
(i) in the case of a Vendor Event of Default specified in the
foregoing clauses (a) or (b), no notice or opportunity to cure shall be
required from Owner; and
(ii) in the case of any other Vendor Event of Default, Owner
shall have provided thirty (30) days' prior written notice, and Vendor
shall have failed (i) to commence to cure the default within five (5)
Business Days of delivery of such notice, and (ii) to diligently pursue
such cure and remedy the breach entirely.
(b) If Owner elects to terminate this Contract, Owner may, in
addition to and without prejudice to any other rights or remedies of Owner in
this Contract or of law or in equity, do one or more of the following:
(i) require Vendor, at no additional charge to Owner, to
complete or assist others with the completion of all ordered but unfinished
Work, including the sharing with Owner and others all relevant engineering
and design data, procurement data, manufacturing data, construction and
erection data, start-up and testing data, materials, and Products that
shall become part of such unfinished System and/or the specified Systems,
which Vendor would otherwise have been required to deliver to Owner
pursuant to the terms of this Contract but for the breach, under reasonably
appropriate non-disclosure agreements; or
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filied separately with the Securities and Exchange Commission.
58
(ii) direct that Vendor assign its Subcontractor agreements to
Owner without any change of price or conditions therein or penalty or
payment therefor.
(c) In the event of any termination of this Contract by Owner in
connection with a Vendor Event of Default, Owner shall have no liability to
Vendor for any future purchases or commitments.
24.4 Discontinuance of Work. Upon such notification of termination,
----------------------
Vendor shall immediately discontinue all of the Work (unless such notice of
termination directs otherwise), and, as more fully set forth in subsection
24.3(b), deliver to Owner copies of all data, drawings, specifications, reports,
estimates, summaries, and such other information, and materials as may have been
accumulated by Vendor in performing the Work, whether completed or in process,
which Vendor would otherwise have been required to deliver to Owner pursuant to
this Contract but for the breach. Furthermore, Vendor shall assign, assemble and
deliver to Owner all purchase orders and Subcontractor agreements requested by
Owner.
24.5 Payments. If Owner terminates this Contract pursuant to
--------
subsection 24.2, Vendor shall not be entitled to receive further payment other
than payments due and payable and for Work performed as of the date of
termination under this Contract and not subject to dispute prior to such
termination (provided that any such disputed amounts shall be paid by Owner when
-------- ----
and if such dispute is in fact resolved). Notwithstanding anything herein to the
contrary, Owner may withhold payments, if any, to Vendor for the purposes of
offset of amounts owed to Owner pursuant to the terms of this Contract until
such time as the exact amount of damages due Owner from Vendor is fully
determined by a court of competent jurisdiction.
24.6 Continuing Obligations. Termination of this Contract for any
----------------------
reason (i) shall not relieve either party of its obligations with respect to the
confidentiality of the Proprietary Information as set forth in subsection 26.18,
(ii) shall not relieve either party of any obligation which applies to it and
which expressly or by implication survives termination, and (iii) except as
otherwise provided in any provision of this Contract expressly limiting the
liability of either party, shall not relieve either party of any obligations or
liabilities for loss or damage to the other party arising out of or caused by
acts or omissions of such party prior to the effectiveness of such termination
or arising out of its obligations as to portions of the Work already performed
or of obligations assumed by Vendor prior to the date of such termination.
24.7 Vendor's Right to Terminate. In addition to and without
---------------------------
prejudice to any other rights or remedies of the Vendor in this Contract or at
law or in equity, Vendor shall have the option to terminate this Contract
without any penalty or payment obligations, other than undisputed payment
obligations outstanding as of the date of any such termination pursuant to the
terms of this Contract if:
59
(a) Owner (i) files a voluntary petition in bankruptcy or has an
involuntary petition in bankruptcy filed against it that is not dismissed
within sixty (60) days of such involuntary filing, (ii) admits the material
allegations of any petition in bankruptcy filed against it, (iii) is
adjudged bankrupt, (iv) makes a general assignment for the benefit of its
creditors, or if a receiver is appointed for all or a substantial portion
of its assets and is not discharged within sixty (60) days after his
appointment, or (v) commences any proceeding for relief from its creditors
in any court under any state insolvency statutes, and any such filing,
proceeding, adjudication or assignment as described herein above shall
otherwise materially impair Owner's ability to perform its obligations
under this Contract; or
(b) Owner fails to make payments of undisputed amounts due to Vendor
pursuant to the terms of this Contract which are more than sixty (60) days
overdue, provided that such failure has continued for at least thirty (30)
days after Vendor has notified Owner of its right and intent to so
terminate on account of such overdue amount; and provided, further, that
such failure to make undisputed payments to Vendor shall not arise out of
or relate to a termination of or credit restrictions under Vendor
Financing, or
(c) Owner materially breaches any provision of this Contract other
than a breach to which Section 24.7(b) is applicable, and after Vendor
having provided thirty (30) days' prior written notice, Owner shall have
failed (i) to commence to cure the default within five (5) Business Days of
delivery of such notice, and (ii) to diligently pursue such cure and remedy
the breach entirely.
24.8 Special Termination Events. (a) Neither Vendor nor Owner shall
--------------------------
be obligated to perform under this Contract, except as specifically provided, in
the event that financing for the purpose of acquiring any System sufficient to
cover Owner's current payment obligations hereunder has not been finalized with
Vendor on terms and conditions reasonably satisfactory to Owner. Unless
acceptable financing is available, either party may terminate this Contract
without recourse, except as noted below, by notifying the other party in
writing. Further, the parties agree that the delivery and performance schedules
shall be extended by the period of time required to secure acceptable financing.
In the event of a termination of this Contract pursuant to this subsection Owner
shall remain liable for amounts due to Vendor for all Work performed or Products
delivered by Vendor or any of its Subcontractors pursuant to the specific terms
of this Contract which had been directly delivered to or performed for Owner
and/or any of its facilities or Sites in accordance with the terms of this
Contract. Any amounts owed by Owner for Work done or Products delivered by
Vendor during such interim period not otherwise invoiced to Owner by Vendor
prior to the termination of such interim period, shall be invoiced to Owner by
Vendor within thirty (30) days. In no event shall Owner be liable to Vendor due
to a termination of this Contract pursuant to this subsection for any of
Vendor's direct or indirect costs or expenses incurred in connection with any
supplies or equipment ordered by Vendor or agreements entered into by Vendor in
order to enable it to fulfill its obligations hereunder or in connection with
the establishment of and/or upgrade to its manufacturing, personnel,
engineering, administrative or other capacities and/or resources in
contemplation of or
60
pursuant to its performance in accordance with the terms of this Contract and
any amounts due to Vendor pursuant to this subsection shall be limited in all
cases to Work actually done or Products or Services actually delivered to Owner,
its Sites or its facilities.
(b) If at any time after the Effective Date any material change shall
have occurred in any Applicable Law or in the interpretation thereof by any
Governmental Entity, or there shall be rendered any decision in any judicial or
administrative case or proceeding, in either case which, in the reasonable
opinion of Owner would make Owner's use of any part of any System illegal or
would subject Owner or any of its Affiliates to any material penalty, other
material liability or onerous condition or to any burdensome regulation by any
Governmental Entity or otherwise render the use of such System economically
nonviable, then, with respect to such System, or affected part thereof, or with
respect to all Systems if so affected, Owner may terminate this Contract without
charge or penalty of any kind; provided that (i) Owner gives Vendor prior
-------- ----
written notice of any such change or decision and (ii) that Owner uses its
reasonable efforts for a reasonable time to reverse or ameliorate such change or
decision to the extent possible or practical prior to declaring such
termination. In the event of a termination pursuant to this subsection, payment
obligations incurred by Owner for Work actually done or Products or Services
actually delivered by Vendor prior to such termination pursuant to this Contract
shall be payable by Owner to Vendor on the same terms and subject to the
limitations set forth in subsection 24.8(a) above.
SECTION 25. SUSPENSION
25.1 Owner's Right to Suspend Work. Owner may at any time issue a
-----------------------------
Change Order to Vendor to suspend all or any part of the Work for such period of
time as Owner may reasonably determine to be appropriate. Any such Change Order
shall be handled in accordance with the provisions of Section 11 hereof.
SECTION 26. MISCELLANEOUS
26.1 Amendments. The terms and conditions of this Contract may only
----------
be amended by mutually agreed contract amendments. Each amendment shall be in
writing and shall identify the provisions to be changed and the changes to be
made. Contract amendments shall be signed by duly authorized representatives of
each of Vendor and Owner.
26.2 Owner Liabilities. Vendor understands and agrees that no third
-----------------
party shall guarantee or otherwise be in any way liable with respect to any
obligations or liabilities of Owner or any of its affiliates pursuant to this
Contract.
26.3 Offset. Vendor hereby waives any right of offset of amounts owed
by Owner to Vendor pursuant to the terms of this Contract.
61
26.4 Assignment. Owner may assign this Contract, or any part hereof, to
----------
any Affiliate of Owner without Vendor's approval or consent. Subject to the
foregoing and except as otherwise permitted herein, neither this Contract nor
any portion hereof may be assigned by either party without the express prior
written consent of the other party. Owner may, without the consent of Vendor,
collaterally assign its rights hereunder (including, but not limited to, all
licenses with respect to the Software) to any or all parties providing financing
for any part of a System for the benefit of Vendor and one or more other
entities providing financing for any part of a System or similar arrangement for
the benefit of Vendor and one or more other entities providing for the financing
for any part of a System, in either case, which arrangement, as the case may be,
is reasonably acceptable to Vendor in accordance with the terms of the financing
documents. If requested by Owner, Vendor shall within seven (7) calendar days of
such request provide a written consent to any such assignment; provided that
-------- ----
such consent shall permit reassignment if the financing parties exercise their
remedies under the documents for such financing subject to reasonable standards
as to (i) the creditworthiness of the assignee and (ii) the fact that the
assignee is not at such time a direct competitor of Vendor involved in the
manufacture of communications equipment, software or related services. The
foregoing rights and obligations are in addition to those set forth elsewhere in
this Contract. Any attempted assignment in violation of the terms of this
Contract shall be null and void. Subject to the foregoing, this Contract shall
bind and inure to the benefit of the parties to this Contract, their successors
and permitted assigns.
26.5 Notices. Except as otherwise expressly stated herein, all notices,
-------
requests, demands and other communications which are required or may be given
under this Contract shall be in writing and shall be deemed to have been duly
given when received if personally delivered; when transmitted if transmitted by
telecopy, electronic or digital transmission method; the day after it is sent,
if sent for next day delivery to a domestic address by recognized overnight
delivery service; and three (3) days after sending, if sent by certified or
registered mail, postage prepaid, return receipt requested. All notices shall be
addressed as follows:
If to Owner:
Cricket Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
With a copy to:
Sr. Vice President, General Counsel
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
62
If to Vendor:
Nortel Networks Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telephone:
Facsimile:
By written notice provided pursuant to this subsection, either party may change
its designated addressee for purposes of giving notices under this Contract.
26.6 Governing Law. This Contract is governed by the laws of the State of
-------------
California, without regard to principles of conflict of laws. This Contract
shall be deemed to be made and executed in the State of California.
26.7 Remedies. Subject only to the limitations on liability contained in
--------
Section 20, each party shall be entitled to pursue any and all rights and
remedies that are available at law or in equity.
26.8 Consent to Jurisdiction. Each party to this Contract, by its
-----------------------
execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction
of the United States District Court located in the Southern District of
California or the state courts of the State of California located in San Diego,
California for the purpose of any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based upon this Contract or relating to the subject matter hereof, (ii)
hereby waives, to the extent not prohibited by applicable law, and agrees not to
assert, by way of motion, as a defense or otherwise, in any such action, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution,
that-any such proceeding brought in one of the above-named courts is improper,
or that this Contract or the subject matter hereof may not be enforced in or by
such court, and (iii) hereby agrees not to commence any action, claim, cause of
action or suit (in contract, tort or otherwise), inquiry, proceeding or
investigation arising out of or based upon this Contract or relating to the
subject matter hereof other than before one of the above-named courts nor to
make any motion or take any other action seeking or intending to cause the
transfer or removal of any such action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation to any court
other than one of the above-named courts whether on the grounds of inconvenient
forum or otherwise. Each party hereby consents to service of process in any such
proceeding in any manner permitted by California law, and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified herein.
26.9 Compliance with Law. Owner and Vendor shall (a) comply with all
-------------------
Applicable Laws in the performance of this Contract, including, without
limitation, the laws
63
and regulations of the United States Department of Commerce, State Department
and the Federal Communications Commission and any other applicable agency or
department.
26.10 Headings. The headings given to the Sections and subsections herein
--------
are inserted only for convenience and are in no way to be construed as part of
this Contract or as a limitation of the scope of the particular Section or
subsection to which the title refers.
26.11 Severability. Whenever possible, each provision of this Contract
------------
shall be interpreted in such a manner as to be effective and valid under such
applicable law, but, if any provision of this Contract shall be held to be
prohibited or invalid in any jurisdiction, the remaining provisions of this
Contract shall remain in full force and effect and such prohibited or invalid
provision shall remain in effect in any jurisdiction in which it is not
prohibited or invalid.
26.12 Waiver. Unless otherwise specifically provided by the terms of this
------
Contract, no delay or failure to exercise a right resulting from any breach of
this Contract shall impair such right or shall be construed to be a waiver
thereof, but such right may be exercised from time to time as may be deemed
expedient. If any representation, warranty or covenant contained in this
Contract is breached by either party and thereafter waived by the other party,
such waiver shall be limited to the particular breach so waived and not be
deemed to waive any other breach under this Contract.
26.13 Public Statements and Advertising. (a) Neither party shall issue
---------------------------------
any public statement (or any private statement unless required in the
performance of the Work) relating to or in any way disclosing any aspect of the
Work or any System including the scope, the specific terms of this Contract,
extent or value of the Work or any System. Express written consent of the other
party is required prior to the invitation of or permission to any reporter or
journalist to enter upon the System or any part thereof. Vendor agrees not to
use for publicity purposes any photographs, drawings and/or materials describing
any System without obtaining the prior written consent of Owner, which consent
shall not be unreasonably withheld. Owner agrees not to use for publicity
purposes any photographs, drawings and/or materials describing Vendor's products
and services without obtaining the prior written consent of Vendor, which
consent shall not be unreasonably withheld. This subsection shall not prohibit
the provision of necessary information to prospective Subcontractors and
Vendor's or Owner's personnel, agents or consultants or other disclosures which
are required by Applicable Law, including without limitation federal and state
securities laws and regulations; provided that, in such event each party shall
notify the other party of any such impending disclosure and allow the other
party to request redactions prior to such disclosure. All other such public
disclosures by a party require the written consent of the other party.
(b) Each party shall submit to the other proposed copies of all advertising
(other than public statements or press releases) wherein the name, trademark or
service ▇▇▇▇ of the other party or its affiliates is mentioned; and neither
party shall publish or use such advertising without the other party's prior
written approval. Such approval shall be granted as promptly as possible and
shall not be unreasonably withheld. The parties acknowledge
64
that the obtaining of prior written approval for each such use pursuant to this
subsection may be an administrative burden. At the request of either party,
Owner and Vendor shall establish mutually acceptable guidelines for the uses
specified therein. Such guidelines shall be subject to change from time to time
at the reasonable request of either party.
26.14 Records and Communications. Procedures for keeping and distributing
--------------------------
orderly and complete records of the Work and its progress are stated in the
Exhibits. The procedures so established shall be followed throughout the course
of the Work unless Owner and Vendor mutually agree in advance in writing to
revise the procedures. Procedures for communications among Owner and Vendor are
stated in the Exhibits. The procedures so established shall be followed
throughout the course of the Work unless Owner and Vendor mutually agree in
advance and in writing to revise such procedure.
26.15 Ownership of Specifications. The Specifications shall constitute
---------------------------
the Proprietary Information of each party to the extent of each party's
contribution to the Specifications. Neither party shall use those parts of the
Specifications contributed by the other party or any part of the Proprietary
Information of the other party for any purpose other than fulfilling or
exercising their respective rights or obligations under this Contract.
26.16 Financing Requirements. Vendor acknowledges that the attainment of
----------------------
financing for construction of the System may be subject to conditions that are
customary and appropriate for the providers of such financing. Therefore, Vendor
agrees to promptly consider any reasonable amendment to or modification or
assignment of this Contract required by such providers (including, without
limitation, any pertinent industrial development authority or other similar
governmental agency issuing bonds for financing of the System) which do not
materially modify the scope of Vendor's Work in order to obtain such financing.
In the event that any such amendment or modification materially increases
Vendor's risk or costs hereunder, Owner and Vendor shall negotiate in good faith
to adjust pricing matters, and to equitably adjust such other provisions of this
Contract, if any, which may be affected thereby, to the extent necessary to
reflect such increased risk or costs. In no event shall Vendor be required to
accept any modification or amendment pursuant to this subsection provided it has
a commercially reasonable basis for such refusal.
26.17 Owner Review, Comment and Approval. To the extent that various
----------------------------------
provisions of this Contract provide for Owner's review, comment, inspection,
evaluation, recommendation or approval, Owner may at its option do so in
conjunction and/or consultation with Vendor. To the extent that this Contract
requires Owner to submit, furnish, provide or deliver to Vendor any report,
notice, Change Order, request or other items, Owner may at its option and upon
written notice to Vendor designate a representative to submit, furnish, provide
or deliver such items as Owner's agent therefor. To the extent that various
provisions of this Contract provide that Owner may order, direct or make
requests with respect to performance of the Work or is provided access to the
System sites or any other site, Owner may at its option and upon written notice
to Vendor authorize a representative to act as Owner's agent therefor. Upon
receipt of such notice, Vendor shall be
65
entitled to rely upon such authorization until a superseding written notice from
Owner is received by Vendor.
26.18 Confidentiality. (a) All information which is identified as
---------------
proprietary or confidential by the disclosing party, including without
limitation all oral and written information (including, but not limited to,
determinations or reports by arbitrators pursuant to the terms of this
Contract), disclosed to the other party is deemed to be confidential, restricted
and proprietary to the disclosing party (hereinafter referred to as "Proprietary
-----------
Information"). Each party agrees to use the Proprietary Information received
-----------
from the other party only for the purpose of this Contract. Except as specified
in this Contract, no other rights, and particularly licenses, to trademarks,
inventions, copyrights, patents, or any other intellectual property rights are
implied or granted under this Contract or by the conveying of Proprietary
Information between the parties. Proprietary Information supplied is not to be
reproduced in any form except as required to accomplish the intent of, and in
accordance with the terms of, this Contract. The receiving party shall provide
the same care to avoid disclosure or unauthorized use of Proprietary Information
as it provides to protect its own similar proprietary information but in no
event shall the receiving party fail to use reasonable care under the
circumstances to avoid disclosure or unauthorized use of Proprietary
Information. All Proprietary Information shall be retained by the receiving
party in a secure place with access limited to only such of the receiving
party's employees, subcontractors or agents who need to know such information
for purposes of this Contract and to such third parties as the disclosing party
has consented to by prior written approval. All Proprietary Information, unless
otherwise specified in writing (i) remains the property of the disclosing party,
(ii) shall be used by the receiving party only for the purpose for which it was
intended, and (iii) such Proprietary Information, including all copies of such
information, shall be returned to the disclosing party or destroyed after the
receiving party's need for it has expired or upon request of the disclosing
party, and, in any event, upon termination of this Contract. At the request of
the disclosing party, the receiving party shall furnish a certificate of an
officer of the receiving party certifying that Proprietary Information not
returned to disclosing party has been destroyed. For the purposes hereof,
Proprietary Information does not include information which:
(i) is published or is otherwise in the public domain through no
fault of the receiving party at the time of any claimed disclosure
or unauthorized use by the receiving party;
(ii) prior to disclosure pursuant to this Contract is properly
within the legitimate possession of the receiving party as evidenced
by reasonable documentation to the extent applicable;
(iii) subsequent to disclosure pursuant to this Contract is
lawfully received from a third party having rights in the
information without restriction of the third party's right to
disseminate the information and without notice of any restriction
against its further disclosure;
66
(iv) is independently developed by the receiving party or is
otherwise received through parties who have not had, either
directly or indirectly, access to or knowledge of such Proprietary
Information;
(v) is transmitted to the receiving party after the disclosing
party has received written notice from the receiving party after
termination or expiration of this Contract that it does not desire
to receive further Proprietary Information;
(vi) is obligated to be produced under order of a court of
competent jurisdiction or other similar requirement of a
Governmental Entity, so long as the party required to disclose the
information provides the other party with prior notice of such order
or requirement and its cooperation to the extent reasonable in
preserving its confidentiality; or
(vii) the disclosing party agrees in writing is free of such
restrictions.
(b) Because damages may be difficult to ascertain, the parties
agree, without limiting any other rights and remedies specified herein, an
injunction may be sought against the party who has breached or threatened to
breach this subsection. Each party represents and warrants that it has the right
to disclose all Proprietary Information which it has disclosed to the other
party pursuant to this Contract, and each party agrees to indemnify and hold
harmless the other from all claims by a third party related to the wrongful
disclosure of such third party's proprietary information.
26.19 Entirety of Contract; No Oral Change. This Contract and the
------------------------------------
Exhibits and Schedules referenced herein constitute the entire contract between
the parties with respect to the subject matter hereof, and supersede all
proposals, oral or written, all previous negotiations, and all other
communications between the parties with respect to the subject matter hereof. No
modifications, alterations or waivers of any provisions herein contained shall
be binding on the parties hereto unless evidenced in writing signed by duly
authorized representatives of both parties as set forth in this Contract.
26.20 Relationship of the Parties. Nothing in this Contract shall
---------------------------
be deemed to constitute either party a partner, agent or legal representative of
the other party, or to create any fiduciary relationship between the parties.
Vendor is and shall remain an independent contractor in the performance of this
Contract, maintaining complete control of its personnel, workers, Subcontractors
and operations required for performance of the Work. This Contract shall not be
construed to create any relationship, contractual or otherwise, between Owner
and any Subcontractor, except to establish Owner as a third party beneficiary of
Vendor's contacts with Subcontractors as provided herein.
26.21 Discretion. Notwithstanding anything contained herein to
----------
the contrary, to the extent that various provisions of this Contract call for an
exercise of discretion in making decisions or granting approvals or consents,
the parties shall be required to exercise such discretion, decision or approvals
and in good faith.
67
26.22 Non-Recourse. No past, present or future limited or general
------------
partner in or of Owner, no parent or other affiliate of any company comprising
Owner, and no officer, employee, servant, executive, director, agent or
authorized representative of any of them (each, an "Operative") shall be liable
---------
by virtue of the direct or indirect ownership interest of such Operative in
Owner for payments due under this Contract or for the performance of any
obligation, or breach of any representation or warranty made by Owner hereunder.
The sole recourse of Vendor for satisfaction of the obligations of Owner under
this Contract shall be against Owner and Owner's assets and not against any
Operative or any assets or property of any such Operative. In the event that a
default occurs in connection with such obligations, no action shall be brought
against any such Operative by virtue of its direct or indirect ownership
interest in Owner.
26.23 Improvements, Inventions and Innovations. All rights in any
----------------------------------------
improvements, inventions, and innovations made solely by Owner shall vest in
Owner, and Owner and its affiliates shall have the right to exploit such
improvements, inventions, and innovations. All rights in any improvements,
inventions and innovations made solely by Vendor shall vest in Vendor, and
Vendor and its affiliates shall have the right to exploit such improvements,
inventions and innovations. All rights in any improvements, inventions and
innovations made by the substantial contribution of both parties ("Joint
-----
Information") shall vest jointly in both parties. Joint Information does not
-----------
include any underlying information owned by one of the parties prior to
commencement of such joint activities or developed beyond the scope of such
joint activities, including Products and Product information, technical
information or inventions developed prior to the commencement of any joint
activities, developed outside of the scope of such joint activities or developed
solely by either party. The rights of joint ownership to such Joint Information
shall be rights of full non-exclusive worldwide ownership, including rights to
license and transfer. Each party may exploit its rights to the Joint Information
independent of the other and may retain all economic benefits thereof, neither
party shall have any obligation to account to the other for profits derived from
the Joint Information and each party shall have full rights to enforce the Joint
Information intellectual property rights against non-authorized users.
26.24 Attachments and Incorporations. All Schedules and Exhibits
------------------------------
attached hereto, are hereby incorporated by reference herein and made a part of
this Contract with the same force and effect as though set forth in their
entirety herein.
26.25 Conflicts. In the event of any conflict or inconsistency
---------
among the provisions of this Contract and the documents attached hereto and
incorporated herein, such conflict or inconsistency shall be resolved by giving
precedence to this Contract and thereafter to the Exhibits, Schedules and
Specifications.
26.26 References to Certain Sources. Reference to standard
-----------------------------
specifications, manuals or codes of any technical society, organization or
association or to the laws or regulations of any Governmental Entity, whether
such reference is specific or by implication, by this Contract, means the latest
standard specification, manual, code, laws or regulations in effect at the time
of such reference, except as may be otherwise specifically
68
agreed to by Owner. However, no provision of any reference, standard,
specification, manual or code (whether or not specifically incorporated by
reference in this Contract) shall be effective to change the duties and
responsibilities of Owner or Vendor from those set forth in this Contract;
provided that nothing contained in this Contract shall require Owner or Vendor
-------- ----
to violate then existing and enforceable Applicable Laws.
26.27 Counterparts. This Contract may be executed by one or more
------------
of the parties to this Contract on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
26.28 Cooperation. Vendor acknowledges that Owner may have one
-----------
or more third party vendors, contractors and other personnel engaged to provide
work, equipment or services to Owner in connection with or related to this
Contract. Vendor agrees to reasonably communicate and cooperate with such third
parties at all times and, at the request of Owner, coordinate Vendor's and
Vendor's Subcontractors' activities hereunder with the activities of such third
parties.
26.29 Survival. Notwithstanding any expiration or termination of
--------
this Contract, the provisions of Sections 2.8, 12, 13, 14, 15, 18, 20 and 26.18
shall continue in full force and effect.
OWNER AND VENDOR HAVE READ THIS CONTRACT INCLUDING ALL SCHEDULES AND
EXHIBITS HERETO AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF AND
THEREOF.
IN WITNESS WHEREOF, the parties have executed this Contract as of
the date first above written.
VENDOR: OWNER:
NORTEL NETWORKS INC., CRICKET COMMUNICATIONS, INC.,
a Delaware corporation a Delaware corporation
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
69
EXHIBIT A-1
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
PRICING DISCOUNTS
[One Page of Pricing Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT A-2
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
PITTSBURGH PRICING [*] BTS
[Five Pages of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
EXHIBIT A-3
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
SERVICES PRICING
[Two Pages of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
EXHIBIT A-4
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
COMPONENT LEVEL PRICES
[Two Pages of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
EXHIBIT A-5
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
SOFTWARE PRICING
[One Page of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
EXHIBIT A-6
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
OTHER PRODUCTS
[Two Pages of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
EXHIBIT A-7
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
NETWORK MODELS 1 to 18 ASSUMPTIONS
[Twenty-Nine Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT A-8
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
DISCOUNT STRUCTURE
[Thirty-One Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT A-9
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
METROCELL INDOOR BTS MODELS
Omni-Sector Single Carrier Metro Cell
[Nine Pages of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
EXHIBIT A-9
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
METROCELL OUTDOOR BTS MODELS
Omni-Sector Single Carrier Metro Cell
[Nine Pages of Pricing Lists Deleted Pursuant to Confidential Treatment Request]
EXHIBIT A-10
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
METROCELL INDOOR BTS MODELS WITH MFRM
[Twenty Pages of Pricing Lists Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT A-11
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
SPARES LIST
[Three Pages of Product Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT A-12
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
TRAINING CREDITS
Vendor shall provide Owner [***] non-transferable training credits (each, a
"Credit"), valued at one class day per Credit for every new System ordered by
Owner from Vendor during the Contract Term; provided, however, the total amount
of Credits provided to Owner by Vendor pursuant to the Exhibit F1 shall not
exceed [***] Credits. Owner shall bear the cost of transportation, meals,
lodging or any other incidental expenses of Owner (or Affiliate or Related
Operator) personnel to, from and during training. Credits must be used prior to
expiration or termination of the Contract, after which such Credits will be
forfeited by Owner and shall have no cash value. Credits may only be used to
train people employed by Owner, an Affiliate, or a Related Operator and not
independent contractors, consultants, or the like. The availability of any
training shall be subject to any prerequisites identified by Vendor in ADVISOR
or other documentation with respect to such training.
Owner may apply such Credits toward any charges invoiced by Vendor for:
1) Vendor led training courses set forth in Vendor' Technical Training
Catalog entitled "ADVISOR", or
2) any charges invoiced by Vendor in conjunction with ECIC program
activity.
Any training charges to which Owner does not apply such Credits shall be payable
by Owner to Vendor at Vendor' then-current prices and Owner shall render payment
in accordance with Section 5.3 of the Contract. Such prices shall be subject to
change by Vendor upon notice to Owner. Vendor may change, modify, update and/or
add training programs as new Product features/releases are made available.
Owner agrees that the courseware and instructional material are confidential
information provided by Vendor, and shall hold the courseware and instructional
material in confidence in accordance with Section 26.18, Confidentiality, of
this Contract.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
EXHIBIT A-13
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
RECOMMENDED TRAINING
The following list of training courses are recommended for Owner's technicians.
Information concerning the courses listed below can be found at the following
address: [*] (look under CDMA).
[Three Pages of Training Information Deleted Pursuant to Confidential Treatment
Request]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
EXHIBIT B-1
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
CANCELLATION CHARGES FOR BTSs AND EXPANSIONS
[One Page of Pricing Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT B-2
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
CANCELLATION CHARGES FOR SWITCH/BSC (EXCLUDING EXPANSIONS)
[One Page of Pricing Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT C
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
INSURANCE
Each party shall, during the term of this Contract, at its own cost
and expense, carry and maintain at a minimum, the insurance coverage listed
below. If either party is not self-insured, that party shall maintain such
coverages with insurers that are licensed in the state of operation. Vendor
shall not commence any work hereunder until each party has fulfilled all
insurance requirements herein. Each party shall require its subcontractors and
agents to maintain the same insurance coverage listed below.
. Workers' Compensation insurance with statutory limits as required in the
state(s) of operation; and providing coverage for either party's employee
entering onto Owner premises, even if not required by statute. Employers'
Liability or "Stop Gap" insurance with limits of not less than $500,000 for
each occurrence.
. Commercial General Liability Insurance covering claims for bodily injury,
death, personal injury or property damage occurring or arising out of the
performance of this Agreement, including coverage for independent
contractor's protection (required if any work will be subcontracted),
premises-operations, products/completed operations and contractual
liability with respect to the liability assumed by either party hereunder.
The limits of insurance shall be:
Each Occurrence (Bodily Injury/Property Damage) $1,000,000.00
General Aggregate Limit (Annual Aggregate) $2,000,000.00
Products-Completed Operations Limit (Annual Aggregate) $1,000,000.00
. Comprehensive Automobile Liability Insurance covering ownership, operation
and maintenance of all owned, non-owned and hired motor vehicles used in
connection with the performance of this Agreement, with limits of at least
$1,000,000 combined single limit for bodily injury and property damage.
The insurance limits required herein may be obtained through any
combination of self-insurance, primary and excess or umbrella liability
insurance. Each party shall furnish the other prior to the start of the work,
if required by the other party, certificates or adequate proof of the insurance
required by this clause. Each party shall notify the other in writing at least
thirty (30) days prior to cancellation of or any material change in the policy.
Notwithstanding the above, each party shall have the option where permitted by
law to self-insure any or all of the foregoing risks.
EXHIBIT D
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
PURCHASE ORDER ADDRESS
All Purchase Orders shall be sent to the Vendor at the following address in
accordance with Section 3.1 of the Agreement:
Nortel Networks Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇
Fax: [*]
Attn: [*]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
EXHIBIT E
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
LEAD TIMES/INTERVALS
[One Page of Schedules Deleted Pursuant to Confidential Treatment Request]
EXHIBIT F
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
PROJECT MANAGEMENT
STATEMENT OF WORK (SOW)
In accordance with an accepted Purchase Order, Vendor shall provide project
management Services for the build-out of Owner's System as set forth herein.
Such Services may include management of all of Vendor's resources (including
subcontractors, as applicable) may as program management, RF and network
engineering, Equipment installation and commissioning, spectrum clearing, Site
acquisition, architectural and engineering, Site construction and logistics
management ("Project Management Services").
[Three Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT G
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
SPECTRUM CLEARING
STATEMENT OF WORK (SOW)
In accordance with an accepted Purchase Order, Vendor shall provide the spectrum
clearing Services set forth in Section 1 below ("Spectrum Clearing Services"),
to (i) identify and, (ii) attempt to alleviate interference from users currently
occupying Owner's desired spectrum ("Incumbents"). Owner acknowledges and agrees
that Vendor's ability to fulfill certain obligations hereunder and/or obtain
satisfactory results is dependent upon the full cooperation of the Incumbent(s)
and the provision by the Incumbent of necessary information to Vendor relative
to Incumbent's use of spectrum. Owner further acknowledges and agrees that the
failure of Vendor to perform any such obligation(s) or obtain satisfactory
results that are due to the lack of cooperation by any Incumbent shall not
constitute a breach or delay under the Agreement. In the event Vendor accepts a
Purchase Order for Spectrum Clearing Services for a System, as described herein,
Vendor shall have no liability under the Agreement for any resulting schedule
delays related to such System.
[Eight Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT H
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
SITE ACQUISITION
STATEMENT OF WORK (SOW)
As set forth in an accepted Purchase Order and on a Site-by-Site basis, Vendor
shall provide Site acquisition Services listed herein ("Site Acquisition
Services"), in the following phases:
(i) Phase I - Zoning audit/Site identification,
(ii) Phase II - Lease/Site acquisition, and
(iii) Phase III - Zoning approvals and permits.
The provision by Vendor of Site Acquisition Services as set forth herein assumes
that Vendor, pursuant to an accepted Purchase Order, has developed the RF design
and identified desirable Search Rings (as defined below) for BTS placement for
Owner's wireless network. In the event Owner utilizes an RF design not provided
by Vendor, the identification of all Search Rings shall be the responsibility of
Owner.
[Seven Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT I-1
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
ARCHITECTURAL AND ENGINEERING
STATEMENT OF WORK (SOW)
FOR SWITCHES
In accordance with an accepted Purchase Order, Vendor shall provide the
following architectural and engineering Services, as set forth herein as
applicable, on a Site-by-Site basis. The provision of A&E Switch Services
performed on any Site as set forth herein assumes that Vendor is able to
reasonably obtain consent from the applicable Site owner to perform any such A&E
Switch Services. Receipt of such consent shall be a condition precedent with
regard to Vendor's performance of A&E Switch Services as set forth herein. In
the event such consent is contingent on the payment of a fee by Vendor to any
Site owner, Vendor shall first obtain Owner's agreement as to the amount of, and
consent to reimburse Vendor for, such fee.
[Five Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT I-2
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
ARCHITECTURAL AND ENGINEERING
STATEMENT OF WORK (SOW)
FOR BTS SITES
In accordance with an accepted Purchase Order, Vendor shall provide the
following architectural and engineering Services, as set forth herein as
applicable, on a Site-by-Site basis. The provision of A&E BTS Services performed
on any Site as set forth herein assumes that Vendor is able to reasonably obtain
consent from the applicable Site owner to perform any such A&E BTS Services.
Receipt of such consent shall be a condition precedent with regard to Vendor's
performance of A&E BTS Services as set forth herein. In the event such consent
is contingent on the payment of a fee by Vendor to any Site owner, Vendor shall
first obtain Owner's agreement as to the amount of, and consent to reimburse
Vendor for, such fee.
[Two Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT J-1
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
CONSTRUCTION MANAGEMENT
STATEMENT OF WORK (SOW)
FOR SWITCHES
In accordance with a accepted Purchase Order, Vendor shall provide the
construction management Services as set forth herein with respect to any
construction Work provided hereunder by Vendor, including, Site construction
management, materials logistics management, management of Architectural and
Engineering Work, Project documentation and reporting and quality control
("Construction Management Services") as follows:
[Two Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT J-2
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
CONSTRUCTION MANAGEMENT
STATEMENT OF WORK (SOW)
FOR BTS SITES
In accordance with a accepted Purchase Order, Vendor shall provide the
construction management Services as set forth herein with respect to any
construction Work provided hereunder by Vendor, including, Site construction
management, materials logistics management, management of Architectural and
Engineering Work, Project documentation and reporting and quality control
("Construction Management Services") as follows:
[Two Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT K
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
SITE CONSTRUCTION AND ANTENNA INSTALLATION AND TESTING
STATEMENT OF WORK (SOW)
As set forth in an accepted Purchase Order and on a Site-by-Site basis, Vendor
shall provide construction Services as set forth herein. Vendor shall construct
the Sites in accordance with applicable industry standards, Vendor
specifications, applicable manufacturer's specifications and practices,
applicable construction drawings, as well as local, state and federal
regulations, ordinances and statutes. The provision by Vendor of construction
Services as set forth herein is conditioned upon Owner's purchase of Vendor's
construction management Services (the description and price for which are not
included in this statement of work).
[Six Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT L
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
INSTALLATION AND COMMISSIONING
STATEMENT OF WORK/PROJECT SCHEDULE
1.0 INTRODUCTION
In accordance with an accepted Purchase Order, this Installation and
Commissioning Statement of Work ("SOW") defines the work requirements and
responsibilities of both Vendor and Owner, which are necessary to engineer,
furnish, deliver, install and test all Equipment furnished hereunder in
accordance with the Project Intervals set forth in Section E herein, and in
the case of a BTS, necessary for shipment to Owner's designated delivery
location (e.g., a warehouse or staging area)("Installation and
Commissioning Services").
Vendor's obligation to perform Installation and Commissioning Services
assumes receipt and acceptance of a valid Purchase Order for such Services.
The materials and labor required for installation activities as described
below represent a "standard" installation. Owner understands and agrees
that certain of the requirements for such installation and commissioning
activities are Site dependent, and Vendor reserves the right to quote
additional charges on a time-and-material basis as the actual designated
Switch Site(s) ("Designated Switch Site") or installation Site(s), as
applicable, are identified.
[Sixteen Pages of Technical Information Deleted Pursuant to Confidential
Treatment Request]
ATTACHMENT 1
BTS SITE READY CHECK LIST
-------------------------------------------------------------------------------------------------------------
Site Proj. # C.O.E.O.
-------------------------------- ---------------------- -------------------------------
Nearest Cross Street Date(1)
------------------------------------------------------------------ --------------------------------
==============================================================================================================
BTS Ready Type of Site(2) Date Observed(3)
-------
---------------------------------
Indoor
Installation?
----------- -------------------------------
Grate/Pad
----------- -------------------------------
Fence
----------- -------------------------------
Tower and Antenna System Complete
(Valid Sweep Test Results)
----------- -------------------------------
RFFE Mounting positions available
(Icebridge/brackets etc.)
----------- -------------------------------
Grounds available at BTS and RFFEs
(megger test results provided)
----------- -------------------------------
AC Available (at demark)
----------- -------------------------------
T1 Available (and tested)
----------- -------------------------------
Site Access (Special Needs)
----------- -------------------------------
Additional Info:
--------------------------------------------------------------------------------------------------------------
==============================================================================================================
Notes:
1. For the header block, please put in the date that all sub-topics were
observed to be complete.
2. For Grate/Pad please put type of site.
3. For remaining blocks, please put in the date you observed each.
4. Please include in comments any additional information that may be useful in
completing the installation and commissioning of the BTS.
Owner: Vendor acknowledgment:
Date: Date:
ATTACHMENT 1
SWITCH SITE READY CHECK LIST
--------------------------------------------------------------------------------------------------------------
Site Proj. # C.O.E.O.
-------------------------------------- ---------------------------- ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Date
------------------------------------------------------------------ ----------------
==============================================================================================================
Owner has completed its obligations, as set forth in Annex 2, Schedule A, Section B, Subsection 2 necessary
for Vendor to commence installation/commissioning of Switch/BSC Equipment.
Additional Info:
--------------------------------------------------------------------------------------------------------------
Owner: Vendor acknowledgment:
Date: Date:
SCHEDULE A-1
SYSTEM ELEMENT FIELD INSTALLATION AND
COMMISSIONING FOR METROCELL PRODUCTS
Introduction
This Installation and Commissioning Statement of Work ("SOW") defines the work
requirements and responsibilities of both Vendor and the Owner which are
necessary to engineer, furnish, deliver, install and test Metrocell Products
furnished hereunder in accordance with the Project Intervals set forth in
Section D herein, necessary for shipment to the Owner's designated FOB Point.
Vendor's obligation to perform the Services described hereunder assumes receipt
and acceptance of a valid Purchase Order for such Services and associated
Products. The materials and labor required for installation activities as
described below represent a "standard" installation. Owner understands and
agrees that certain of the requirements for such installation and commissioning
activities are Site dependent, and Vendor reserves the right to quote (pursuant
to and in accordance with the pricing as set forth in the Agreement or
applicable Exhibit) additional charges on a time-and-material basis as the
actual Designated Switch Site(s) or installation Site(s), as applicable, are
identified, in accordance with this Agreement. Owner's responsibilities set
forth herein are conditions precedent to Vendor's responsibilities set forth
herein.
[Eight Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
ATTACHMENT 1
TO
SCHEDULE B-1
BTS SITE READY CHECK LIST
Date(1)
------------------------------
---------------------------------------------------------------------------------------------------------------
Site Proj. # C.O.E.O.
What is this # A Vendor
provided number required
for tracking the BTS.
-------------------------------------- -------------------- ------------------------------
Nearest Cross Street Cascade #
--------------------------------------------------------- ------------------------------
===============================================================================================================
BTS Ready Type of Site(2) Date Observed(3)
-------
Is this the same as the checklist
below.
------------------------------------------------------------------
Indoor Installation
------- ------------------------------
Grate/Pad
------- ------------------------------
Temp/Perm Fence
------- ------------------------------
Tower and Antenna System Complete
------- ------------------------------
Site Access (Special Needs)
------- ------------------------------
Additional Info:
---------------------------------------------------------------------------------------------------------------
Access Requirements:
--------------------
---------------------------------------------------------------------------------------------------------------
===============================================================================================================
Date Observed(3)
----------------------------------
[ ] BTS Set on Pad
----------------------------------
[ ] Grounds Connected to BTS
----------------------------------
[ ] AC Available (at BTS breaker) and BTS connected
----------------------------------
[ ] Valid MEGGER Result - SSLP SSEO See comments in Section A, Item 14
----------------------------------
GPS Antenna Installed
------- ----------------------------------
Additional Info:
---------------------------------------------------------------------------------------------------------------
===============================================================================================================
[ ] BTS On-Air Ready Date Observed(3)
-------------------------------
[ ] T1 Available and CSU in Telco Box Shows Green
Light
-------------------------------
[ ] Jumpers from Antenna Lines ready for connection
to enclosure Connected
-------------------------------
[ ] Valid Sweep Test Results
(Ask I&C Warehouse In-Charge)
-------------------------------
Additional Info:
---------------------------------------------------------------------------------------------------------------
===============================================================================================================
Notes:
1. For the header Block, please put in the date that all sub-topics were
observed to be complete.
2. For Grate/Pad please put type of site.
4. For remaining blocks, please put in the date you observed each.
5. For access requirements, please indicate lock combination number, who has the
key(s) and how to contact that person, specific hours access is available,
etc.
- Space has been provided at the end of each section to list additional info
deemed necessary (i.e., bad road when muddy; check with landlord prior to
site visit; pile of gravel in road, etc.).
---------------------------- ----------------------------
Owner: Vendor acknowledgement:
---------------------------- ----------------------------
Date: Date
ATTACHMENT 1
TO
SCHEDULE B-1
COMMISSIONING CRITERIA
Metrocell Cascade #
--------------------------------------------------------------------------------
SITE START DATE
------------------------ ------------------------
PROJECT COEO
------------------------ ------------------------
LOCATION COMPLETED
------------------------ ------------------------
VENDOR OWNER
SECTION NAME INITIALS
---------------------------------------------------------------------------------------------------------------
08-0268 Outdoor CDMA Metrocell DE Handling & Securing
---------------------------------------------------------------------------------------------------------------
08-0269 Outdoor CDMA Metrocell RE Handling & Securing
---------------------------------------------------------------------------------------------------------------
Outdoor CDMA Metrocell EBE Handling & Securing
---------------------------------------------------------------------------------------------------------------
18-0270 Outdoor CDMA Metrocell System Cabling
---------------------------------------------------------------------------------------------------------------
18-0262 CDMA Metrocell Carrier Growth
---------------------------------------------------------------------------------------------------------------
22-0272 CDMA Metrocell Preparation & Power Up
---------------------------------------------------------------------------------------------------------------
24-0273 Outdoor CDMA Metrocell Fault Isolation Testing
---------------------------------------------------------------------------------------------------------------
24-0271 Outdoor CDMA Metrocell Helios 3500 Configuration
---------------------------------------------------------------------------------------------------------------
26-0321 CDMA Metrocell and Minicell GPSTM installation and
Configuring
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
SSP CDMA Cell CallP Test N/A
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
NOTE:
---------------------------------------------------------------------------------------------------------------
No Section Is To Be NA'd Without ITAS Approval
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
N/A = No Customer Signature Required
---------------------------------------------------------------------------------------------------------------
Vendor Rep____________________________ Owner Rep____________________________
ATTACHMENT 2
Installation and COMMISSIONING CRITERIA
Upon completion of installation, if the Vendor is not performing commissioning
activities, or commissioning activities by Vendor, Owner shall within [*],
either (i) accept the Site as being in compliance with the Specifications; (ii)
accept the Site "as is"; or (iii) provide the Vendor a "punch list" noting in
reasonable detail any deficiencies resulting from the Vendor's non-compliance
with the Specifications. In the case of (i) or (ii) above, the Owner will
promptly acknowledge Acceptance of the installation and/or commissioning work in
writing in the format set forth in this Attachment 2 to Exhibit B3, and in the
case of (iii) above, such written acknowledgement shall be provided promptly
upon the Vendor's correction of the punch list items. The failure of Owner to
notify Vendor within [*] after completion of installation and/or commissioning
activities (or, in the case of correction, [*] following such correction) of any
particulars in which the Products do not meet the Installation and/or
Commissioning Criteria, shall be deemed to constitute Owner's acceptance of such
installation and/or commissioning Services.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
EXHIBIT M
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
RF ENGINEERING DESIGN SERVICES FOR NEW NETWORK DESIGN
1.0 INTRODUCTION
This RF engineering design Services ("RF Engineering Design Services")
Statement of Work defines the work requirements and responsibilities of
Owner and Vendor with respect to performing RF Engineering Design Services.
Vendor's obligation to perform RF Engineering Design Services assumes
receipt and acceptance of a valid Purchase Order for such Services;
provided that, such Purchase Order shall include the Entrance Criteria
listed in Section 2.0 below.
The RF Engineering Design Services for the design of a new System involves
the three step process set forth below for the identification of the
minimum number of cell sites required to achieve Owner's design objectives.
[Ten Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT N
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
RF OPTIMIZATION SERVICES
1.0 Introduction
This RF optimization Services ("RF Optimization Services") Statement of
Work defines the work requirements and responsibilities of Owner and Vendor
with respect to performing RF Optimization Services. Vendor will provide
the following: classification of morphologies, analysis of propagation
characteristics, development of an appropriate PN plan, performing path
balancing, handoff cluster optimization and a final drive test.
Vendor's obligation to perform RF Optimization Services assumes receipt and
acceptance of a valid Purchase Order for such services; provided that, such
Purchase Orders shall include the Entrance Criteria listed in Section 2.0
below.
[Eleven Pages of Technical Information Deleted Pursuant to Confidential
Treatment Request]
EXHIBIT O
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
NETWORK INTEGRATION
1.0 "Network Integration Services" shall mean Vendor's on-site technical
support Services for the optimization and/or operation and maintenance of
the BTS, Switch and BSM, to be specified in a Purchase Order accepted by
Vendor. Unless provided in the applicable pricing Exhibit of the
Agreement, Vendor shall provide the price(s) for such Network Integration
Services to Owner upon request on an as-quoted basis, which Services are
further described below:
[Three Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT P
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
PRODUCT SPECIFICATIONS
--------------------------------------------------------------------------------
Table of Contents
The DMS-MTX............................................. 1
Power requirements and environmental conditions......... 4
Physical dimensions..................................... 5
The Base Station Controller............................. 5
Operational Specifications.............................. 6
Network Overview........................................ 7
Architectural overview.................................. 8
BSC capacity............................................ 10
BSC physical specifications............................. 12
CDMA Metro Cell......................................... 14
CDMA Metro Cell Technical Specifications................ 15
CDMA MiniCell........................................... 15
Minicell Technical Specifications....................... 16
Regulatory Specifications for Metro Cell and Minicell... 16
The DMS-MTX switch is a member of Nortel Networks' DMS family of digital
switching systems. DMS includes six versions of switching systems. All systems
use a common hardware and software platform with additional software to cover
the entire range of operator applications.
All DMS systems benefit from a common, ongoing research and development program.
This program enhances the capabilities of all DMS systems and ensures the
incorporation of new technologies to all versions of the switch.
The following specifications as stated herein are subject to change from time to
time.
THE DMS-MTX
[Twenty-One Pages of Technical Information Deleted Pursuant to Confidential
Treatment Request]
EXHIBIT Q
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
BASE GENERIC SOFTWARE FEATURES
The following is a list of Vendor's base Software features included in Vendor's
MTXU0008 Base Load.
[Three Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT R
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
DOCUMENTATION/MANUALS
The following list of System Maintenance and Instruction Manuals and System
Operating and Configuring Manuals apply to the Products provided under the
Agreement and are available through Vendor's computer-based information system
("HELMSMAN").
HELMSMAN CD-ROM: Includes one (1) compact disc and one (1) application program;
CD-ROM reader and interface card are optionally available through Vendor for use
on Owner-supplied DOS personal computer. Updates are available at additional
costs. (Documents not available on compact disc will be provided in paper
format.)
Helmsman 4.1.1 Windows User Guide............................................ P632202.01
Helios TCM/48 Temperature Compensation Module................................ 167-4701-10202.00
Helios BMU Battery Management Unit........................................... 167-8001-11008.00
Helios System 200/48 Manual.................................................. 167-9021-10904.00
MPR25/MPR15 Series Single Phase -48V......................................... 169-2071-50007.00
North American DMS-100 Service priority classification descript.............. 297-0201-01501.03
Cutover Conversion Services Customer Grooming Method of Proc................. 297-0301-30102.05
North American DMS-100 Electrostatic Discharge Protection Guide.............. 297-1001-01002.03
Maintenance System Maintenance Guide......................................... 297-1001-10601.02
Maintenance - Administration Tools Description............................... 297-1001-10701.02
CMIS Equipment Cabinet Planning - Engineering Guide......................... 297-1001-10901.02
Magnetic Tape Reference Manual............................................... 297-1001-11803.03
AMA - NT Format Reference Guide.............................................. 297-1001-11918.04
Automatic Trunk Testing Description.......................................... 297-1001-12103.02
Alarm System Description..................................................... 297-1001-12205.01
Journal File Description..................................................... 297-1001-12703.03
Input/Output System Reference Manual......................................... 297-1001-12906.04
Synchronous Clock System Description Description............................. 297-1001-13003.03
DMS-100 Ringing System General Description................................... 297-1001-13104.02
Blue Box Fraud Detection Feature Description................................. 297-1001-13202.02
Trunk Selection - Compatibility Reference.................................... 297-1001-15201.04
Peripheral - Trunk group/Line Assignments Reference guide.................... 297-1001-15501.02
Power Distribution - Grounding Guide User Guide.............................. 297-1001-15603.07
Grounding Audit Procedures Procedural Manual................................. 297-1001-15802.03
Basic Administration Procedures.............................................. 297-1001-30003.06
SuperNode Conversion Procedures.............................................. 297-1001-30201.07
ONP-HYBRID Software Delivery Procedures...................................... 297-1001-30304.01
DMS100 Family Capacity Administration Guide.................................. 297-1001-30403.02
DMS100 Family Memory Administration Guide.................................... 297-1001-30504.03
Loading Administration Guide................................................. 297-1001-30603.02
Service Problem Analysis Administration Guide................................ 297-1001-31804.02
SPMS Application Guide....................................................... 297-1001-33011.04
DIRP Administration Guide.................................................... 297-1001-34501.06
Digital Switching Systems Power - Grounding Routine Maintenance.............. 297-1001-35002.02
Basic Translations Tools Guide............................................... 297-1001-36004.05
Provisioning................................................................. 297-1001-45028.01
Network Management System Reference Manual................................... 297-1001-45310.06
DMS-100 Family Software Package to Data Cross Reference...................... 297-1001-45620.01
Maintenance System Man-Machine Interface Description......................... 297-1001-52003.04
Automatic Board-To-Board Testing Reference Manual............................ 297-1001-52205.04
Remote Data Polling System Description....................................... 297-1001-52409.01
Data Packet Controller Reference Manual...................................... 297-1001-52503.01
Disk Maintenance Subsystem Reference Manual.................................. 297-1001-52609.01
DRAM DRAM - EDRAM Guide...................................................... 297-1001-52713.05
Conference Circuit Guide..................................................... 297-1001-53003.05
Common Channel Signaling 7 Maintenance Reference Manual...................... 297-1001-53106.01
Bit Error Rate Performance Testing Testing Reference......................... 297-1001-53307.01
Maintenance Managers Morning Report.......................................... 297-1001-53503.04
DPP Hardware Component Replacement Guide..................................... 297-1001-53901.02
DPP Commands and Messages Guide.............................................. 297-1001-54501.04
NORESTARTSWACT/MTCSWACT User's Guide......................................... 297-1001-54603.01
DPP Maintenance Procedures Guide............................................. 297-1001-54701.01
Bellcore Format AMA Maintenance Guide........................................ 297-1001-57001.01
Input/Output Devices Maintenance Guide....................................... 297-1001-59004.12
Networks Maintenance Guide................................................... 297-1001-59104.03
Peripheral Modules Maintenance Guide......................................... 297-1001-59210.01
External Devices Maintenance Guide........................................... 297-1001-59304.01
Trunks Maintenance Guide..................................................... 297-1001-59505.01
Commands Reference Manual.................................................... 297-1001-82208.02
Glossary of Terms - Abbreviations Reference Manual........................... 297-1001-82504.02
Bellcore Format AMA Reference Guide.......................................... 297-1001-83019.01
Equal Access Maintenance Guide............................................... 297-2101-50004.01
PCM30 Line Drawer Maintenance Guide.......................................... 297-2101-50402.01
SDMC OM Data Delivery Application User Guide................................. 297-2667-32102.02
SuperNode Patching Procedures................................................ 297-5001-54005.03
DMS SN & DMS SN SE Computing Module Maintenance Guide........................ 297-5001-54810.03
DMS SN & DMS SN SE Message Switch Maintenance Guide.......................... 297-5001-54907.03
DMS SuperNode SE Alarm - Performance Monitoring Procedures................... 297-5301-54304.01
SDM SuperNode Billing Application Application Guide.......................... 297-5051-30003.02
SuperNode Data Manager User Guide............................................ 297-5051-90402.01
SDM ASCII Terminal Access User Guide......................................... 297-5051-90501.01
SuperNode Data Manager User Guide............................................ 297-5051-91204.05
SuperNode Data Manager User Guide............................................ 297-5051-91301.01
SuperNode Data Manager Fault-tolerant User Guide............................. 297-5061-90602.02
North American DMS-100 OAM&P Change Document Reference Manual................ 297-8001-10004.01
DMS-100 Alarm Clearing - Perform. Monitoring Proc. Vol. 1 of 4............... 297-8001-543110.02
DMS-100 Alarm Clearing - Perform. Monitoring Proc. Vol. 2 of 4.............. 297-8001-543210.02
DMS-100 Alarm Clearing - Perform. Monitoring Proc. Vol. 3 of 4............... 297-8001-543310.02
DMS-100 Alarm Clearing - Perform. Monitoring Proc. Vol. 4 of 4.............. 297-8001-543410.02
NA DMS-100 OAM&P Change Document Reference Manual Volume 1 of 2.............. 297-8021-100106.03
NA DMS-100 OAM&P Change Document Reference Manual Volume 2 of 2.............. 297-8021-100206.03
NA DMS-100 Alarm Clearing - Perform Monitoring Proc Vol 1 of 4.............. 297-8021-543110.02
NA DMS-100 Alarm Clearing - Perform Monitoring Proc Vol 2 of 4.............. 297-8021-543210.02
NA DMS-100 Alarm Clearing - Perform Monitoring Proc Vol 3 of 4.............. 297-8021-543310.02
NA DMS-100 Alarm Clearing - Perform Monitoring Proc Vol 4 of 4.............. 297-8021-543410.02
SMU Maintenance Manual....................................................... 297-8241-55009.01
XPM Operational Measurements Reference Manual................................ 297-8321-81409.02
XPM Translations Reference Manual Volume 1 of 3.............................. 297-8321-815111.02
XPM Translations Reference Manual Volume 2 of 3............................. 297-8321-815211.02
XPM Translations Reference Manual Volume 3 of 3............................. 297-8321-815311.02
Extended Peripheral Module Logs Reference Manual............................. 297-8321-84010.02
Extended Peripheral Module Int'l Operational Measurements Ref................ 297-8331-81407.01
Extended Peripheral Module International Translations Reference.............. 297-8331-81509.01
Extended Peripheral Module International Logs Reference Manual............... 297-8331-84007.01
North American DMS-100 Peripheral Module Software Release Doc................ 297-8981-59908.03
▇▇▇-▇▇ - ▇▇▇-▇▇▇.....................................................▇▇▇-▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇-▇▇▇▇▇.▇▇
▇▇▇-▇▇ - ▇▇▇-▇▇▇ Cancellation Cross-reference Directory...................... 297-8991-00204.04
Software Delivery Process Description........................................ 297-8991-02001.01
Software Delivery Planning and Provisioning.................................. 297-8991-02101.01
DMS-INode Functionality Description Reference Manual......................... 297-8991-10001.01
ONP Software Delivery Procedures, Vol. 1 of 2................................ 297-8991-303110.04
ONP Software Delivery Procedures, (XA-Core) Vol. 1 of 2...................... 297-8991-303210.04
Cutover Manual XA-Core Cutover Procedures Manual............................. 297-8991-30701.04
DMS100 Family XA-Core Maintenance Manual..................................... 297-8991-51002.02
DMS100 Family XA-Core Maintenance Guide...................................... 297-8991-51102.02
Post-Release Software Manager (PRSM) Reference Guide......................... 297-8991-54007.03
Hardware Description Manual Volume 1 of 5.................................... 297-8991-805106.01
Hardware Description Manual Volume 2 of 5.................................... 297-8991-805206.01
Hardware Description Manual Volume 3 of 5.................................... 297-8991-805306.01
Hardware Description Manual Volume 4 of 5.................................... 297-8991-805406.01
Hardware Description Manual Volume 5 of 5.................................... 297-8991-805506.01
DMS100 Family XA-Core Reference Manual....................................... 297-8991-81002.02
Software Optionality Control user Manual..................................... 297-8991-90108.01
DMS100 Family Ethernet Interface Unit User Guide............................. 297-8991-91002.02
Introduction to the New North America DMS-100 Product Structure.............. 50104.1601.01
BCS to PCL Mapping........................................................... 50105.1601.02
DMS Switching Evolution Transition Guide..................................... 50111.1601.01
DMS-100 Capacity Planner..................................................... 50112.1601.01
DMS-100 Software Portfolio................................................... 50170.1101.01
Expanded Carrier Identification Code Planner for Feature Group............... 57003.1601.01
DMS-100 Feature Description Manual........................................... PLN-1001-00327.01
DMS SuperNode Technical Specification........................................ PLN-5001-00102.08
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ Release Document Volume 1 of 3................ PLN-8001-004109.02
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ Release Document Volume 2 of 3................ PLN-8001-004209.02
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ Release Document Volume 3 of 3................ PLN-8001-004309.02
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ Release Document Volume 1 of 3................ PLN-8021-004109.02
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ Release Document Volume 2 of 3................ PLN-8021-004209.02
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ Release Document Volume 3 of 3................ PLN-8021-004309.02
ALL PRODUCTS COMPUTING-MODULE LOADS.......................................... PLN-8991-103105.03
ALL PRODUCTS COMPUTING-MODULE LOADS.......................................... PLN-8991-103205.03
ALL PRODUCTS COMPUTING-MODULE LOADS.......................................... PLN-8991-103305.03
ALL PRODUCTS COMPUTING-MODULE LOADS.......................................... PLN-8991-103405.03
Provisioning Manual - Active Detail Volume 1 of 4............................ PLN-8991-104105.03
Provisioning Manual - Active Detail Volume 2 of 4............................ PLN-8991-104205.03
Provisioning Manual - Active Detail Volume 3 of 4............................ PLN-8991-104305.03
Provisioning Manual - Active Detail Volume 4 of 4............................ PLN-8991-104405.03
Listing of TAMs Technical Assistance Manual.................................. TAM-1001-00010.03
TAS Nonresident Tool Listing Technical Assistance Manual..................... TAM-1001-00110.03
DISPCALL User Guide.......................................................... TAM-1001-00303.01
PMDEBUG Technical Assistance Manual.......................................... TAM-1001-00409.03
PMIST Technical Assistance Manual............................................ TAM-1001-00708.02
DEBUG Technical Assistance Manual............................................ TAM-1001-00803.02
Data Layout Manual Reference Manual.......................................... TAM-1001-01104.01
CallTrak User Guide.......................................................... TAM-1001-01201.01
MPCDebug User Guide.......................................................... TAM-1001-01301.01
SCANLOG User Guide........................................................... TAM-1001-01401.02
C7TU Technical Assistance Manual............................................. TAM-1001-01502.02
Super Nonresident Tool Listing Technical Assistance Manual................... TAM-1001-01602.03
Automatic Message Accounting (AMA) Tools User Guide.......................... TAM-1001-01701.01
DMS-MTX Capacity Planning Guidelines for AMPS/TDMA........................... 411-2131-00903.02
DMS-MTX - Cell Site Hardware Product Guide................................... 411-2131-10010.01
Electrostatic Discharge Protection........................................... 411-2131-11301.01
DMS-MTX Equal Access Guide................................................... 411-2131-13603.02
DMS-MTX Authentication Deployment Guide - Reference.......................... 411-2131-14103.02
DMS-MTX Authentication Center Deployment - Reference......................... 411-2131-14202.02
DMS-MTX Standalone Home Location Register (S-HLR)............................ 411-2131-14302.02
DMS-MTX Short Message Service Application Guide.............................. 411-2131-15204.02
MTX08 Software Delta for Planners Vol. 1 of 4................................ 411-2131-199109.05
MTX08 Software Delta for Planners Vol. 2 of 4................................ 411-2131-199209.05
MTX08 Software Delta for Planners Vol. 3 of 4................................ 411-2131-199309.05
MTX08 Software Delta for Planners Vol. 4 of 4................................ 411-2131-199409.05
DMS-MTX Billing Management Manual............................................ 411-2131-20407.02
DMS-MTX Automatic File Transfer Application Guide............................ 411-2131-20503.02
DMS-MTX Basic Cellular Translations.......................................... 411-2131-22007.02
DMS-MTX One Night Process Software Delivery.................................. 411-2131-30306.02
DMS-MTX International Tones - Signaling Applications......................... 411-2131-44107.02
DMS-MTX Customer Data Schema Reference Manual Vol. 1 of 3.................... 411-2131-451110.03
DMS-MTX Customer Data Schema Reference Manual Vol. 2 of 3.................... 411-2131-451210.03
DMS-MTX Customer Data Schema Reference Manual Vol. 3 of 3.................... 411-2131-451310.03
DMS-MTX Office Parameters Reference Manual................................... 411-2131-45510.03
CDMA Circuit Switched Data Deployment Guide.................................. 411-2131-50001.03
DMS-MTX TDMA Circuit Switched Data Deployment Guide.......................... 411-2131-50101.03
DMS-MTX Logs Reference Manual................................................ 411-2131-51010.03
DMS-MTX IS-41 Networking for X.25/CCS7 Guide................................. 411-2131-55402.03
DMS-MTX CDPD Deployment Guide................................................ 411-2131-56207.02
DMS-MTX CDPD Handbook........................................................ 411-2131-56307.02
DMS-MTX CDPD IP/CNLP......................................................... 411-2131-56405.02
DMS-MTX PM Software Release Document Supporting PRSM......................... 411-2131-59803.04
DMS-MTX MAPS Command Reference Vol. 1 of 4................................... 411-2131-809110.03
DMS-MTX MAPS Command Reference Vol. 2 of 4................................... 411-2131-809210.03
DMS-MTX MAPS Command Reference Vol. 3 of 4................................... 411-2131-809310.03
DMS-MTX MAPS Command Reference Vol. 4 of 4................................... 411-2131-809410.03
DMS-MTX Fraud Prevention - Detection Reference Manual........................ 411-2131-81003.02
DMS-MTX Operational Measurements Reference Manual............................ 411-2131-81410.02
DMS-MTX Glossary of Terms and Abbreviations.................................. 411-2131-82507.02
DMS-MTX Operational Measurements Quick Reference Manual...................... 411-2131-90004.02
DMS-MTX Logs Quick Reference Guide........................................... 411-2131-90102.02
CDMA RF Optimization Guide................................................... 411-2133-00401.02
CDMA Metro Cell Carrier Growth............................................... 411-2133-00802.02
CDMA BSC Theory of Operations................................................ 411-2133-10107.04
CDMA 800 MHz BTS Functional Operations Overview.............................. 411-2133-10203.03
CDMA Base Station Manager User's Guide....................................... 411-2133-10305.02
CDMA BSS Manager Configuration Reference Manual.............................. 411-2133-10405.02
CDMA BSS Manager Software Installation Guide................................. 411-2133-10503.02
CDMA Base Station Subsystem Manager.......................................... 411-2133-10603.02
CDMA Metro Cell & Minicell Functional Description Manual..................... 411-2133-11002.18
CDMA Metro Cell Deployment Guidelines Reference Manual....................... 411-2133-11101.07
CDMA T1 Based Inter-System/Intra-BSC Soft Handoff............................ 411-2133-12104.04
CDMA Second Carrier Deployment Handbook...................................... 411-2133-12203.02
CDMA Six Sector Cell Applications Handbook................................... 411-2133-12301.01
MTX Planning Guide........................................................... 411-2133-13003.02
CDMA NBSS Software Delta for Planners Manual................................. 411-2133-19906.02
CDMA NBSS8.1 Software Delta for Planners..................................... 411-2133-19907.06
CDMA Minicell Pre-installation Manual........................................ 411-2133-20201.03
CDMA Channel Data Services Unit (CDSU)....................................... 411-2133-20401.05
CDMA Resource Management Unit Enhanced Selector Card......................... 411-2133-20501.01
CDMA RF Design Guidelines.................................................... 411-2133-30101.01
CDMA ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ BTS Maintenance - Troubleshooting...................... 411-2133-50004.04
CDMA BSC Maintenance and Troubleshooting..................................... 411-2133-50108.04
CDMA 800 MHz BTS Maintenance - Troubleshooting Guide......................... 411-2133-50203.02
CDMA 1900MHz BTS RF Troubleshooting Guide.................................... 411-2133-50401.04
CDMA ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ BTS Maintenance - Troubleshooting....................... 411-2133-50503.02
CDMA Metro Cell System - RF Datafill Parameters.............................. 411-2133-50601.04
CDMA 800 MHz FCP BTS Functional Operations................................... 411-2133-50701.04
CDMA 800 MHz FCP BTS Maintenance - Troubleshooting Guide..................... 411-2133-50801.03
CDMA NBSS Alarms Reference Manual Volume 1 of 2............................. 411-2133-530105.03
CDMA NBSS Alarms Reference Manual Volume 2 of 2............................. 411-2133-530205.03
CDMA NBSS Alarms Delta Reference Manual...................................... 411-2133-53103.04
CDMA NBSS Operational Measurements........................................... 411-2133-53504.02
CDMA Base Station Manager.................................................... 411-2133-54006.02
CDMA Base Station Subsystem Manager.......................................... 411-2133-54103.03
CDMA Fault Management - Recovery Guide....................................... 411-2133-54504.04
CDMA Metro Cell & Minicell Maintenance & Troubleshooting..................... 411-2133-55003.04
CDMA 800 MHz ▇▇▇▇▇▇▇ BTS RF Troubleshooting Guide............................ 411-2133-56001.01
CDMA Log File Format and Managed Objects..................................... 411-2133-81005.02
CDMA Dual BSC Deployment Guide............................................... 411-2133-90301.02
CDMA BSS Manager Journaling Quick Reference Guide............................ 411-2133-90401.02
CDMA Verilink Access System 2000 T1/E1 CDSU User Manual...................... 411-2133-91201.02
CDMA BTS Maintenance Unit (BMU) User Guide................................... 411-2133-92002.03
CDMA BSM Tools Users Guide................................................... 411-2133-93004.02
CDMA ATM Networking Deployment Guide......................................... 411-2133-93502.06
Base/Telecom Translations Guide Volume 1 of 2................................ 411-3001-220108.03
Base/Telecom Translations Guide Volume 2 of 2................................ 411-3001-220208.03
Base/Telecom Customer Service Data Schema Volume 1 of 4..................... 411-3001-451108.03
Base/Telecom Customer Service Data Schema Volume 2 of 4..................... 411-3001-451208.03
Base/Telecom Customer Service Data Schema Volume 3 of 4..................... 411-3001-451308.03
Base/Telecom Customer Service Data Schema Volume 4 of 4..................... 411-3001-451408.03
Base/Telecom Office Parameters Reference Manual.............................. 411-3001-45508.03
Base/Telecom Log Reports Reference Manual Volume 1 of 5...................... 411-3001-510108.03
Base/Telecom Log Reports Reference Manual Volume 2 of 5...................... 411-3001-510208.03
Base/Telecom Log Reports Reference Manual Volume 3 of 5...................... 411-3001-510308.03
Base/Telecom Log Reports Reference Manual Volume 4 of 5...................... 411-3001-510408.03
Base/Telecom Log Reports Reference Manual Volume 5 of 5...................... 411-3001-510508.03
Alarm Clearing - Performance Monitoring Procedures Vol. 1 of 3............... 411-3001-543108.03
Alarm Clearing - Performance Monitoring Procedures Vol. 2 of 3............... 411-3001-543208.03
Alarm Clearing - Performance Monitoring Procedures Vol. 3 of 3............... 411-3001-543308.03
Base/Telecom Trouble Locating - Clearing Procedures.......................... 411-3001-54408.03
Base/Telecom Recovery Procedures............................................. 411-3001-54508.03
Base/Telecom Routine Maintenance Procedures.................................. 411-3001-54608.03
Base/Telecom Card Replacement Procedures Volume 1 of 3....................... 411-3001-547108.03
Base/Telecom Card Replacement Procedures Volume 2 of 3....................... 411-3001-547208.03
Base/Telecom Card Replacement Procedures Volume 3 of 3....................... 411-3001-547308.03
Operational Measurements Reference Manual Vol. 1 of 3........................ 411-3001-814108.03
Operational Measurements Reference Manual Vol. 2 of 3........................ 411-3001-814208.03
Operational Measurements Reference Manual Vol. 3 of 3........................ 411-3001-814308.03
Base/Telecom XPM Log Report Reference Manual................................. 411-3003-51005.01
Base/Telecom XPM Maintenance Procedures...................................... 411-3003-54005.01
Base/Telecom Alarm Clearing Procedures....................................... 411-3003-54305.01
EXHIBIT S
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
AVAILABILITY OF INTEROPERABILITY SPECIFICATION ("IOS")
Vendor currently offers CDMA Development Group ("CDG") IOS V2.0A compliant
Software, as part of the MTX08 release, which is currently commercially
available.
The following features listed below are included in IOS 2.0A:
[Three Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT T-1
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
VENDOR TAS WARRANTY SERVICES
1.0 TAS WARRANTY SERVICES
1.1 If Owner experiences operational difficulties, Owner may contact
Vendor's Technical Assistance Service (TAS) Department. Special remote
terminals in the TAS center are used to communicate with Owner's System
to diagnose fault conditions and recommend corrective action.
[Four Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
EXHIBIT T-2
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
OEM EQUIPMENT WARRANTIES
In accordance with Section 18.1 of the Agreement, OEM Equipment will
be warrantied by the Vendor on a pass-through basis only. Vendor assumes no
liability for the warranty claims of the Owner for such OEM Equipment. In the
event that OEM Equipment provided to Owner hereunder carries less than a one (1)
year pass-through warranty, Vendor shall provide notice to Owner of such
warranty and Owner shall be offered the opportunity to cancel that portion of
the applicable Purchase Order relating to the purchase/license of such OEM
Equipment.
Products covered by Vendor's warranties in accordance with in Section 18
(Warranties) of the Agreement are as follows:
DMS-MTX (including DC power)
CDMA-BSCs
CDMA-BTS (including DC power)
Nortel manufactured ATM Switch Equipment
Nortel manufactured Packet Data Switch Network
Vendor may identify other products from time-to-time that shall be covered by
Vendor's Warranty.
Some examples of OEM Equipment follows. However, the list is not exhaustive and
is provided for informational purposes only.
[***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
EXHIBIT U
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
REPAIR AND RETURN
Introduction
This Exhibit provides the Owner with instructions for obtaining Product repair
services for all Equipment purchased from Vendor.
How To Process Repair Orders
[Four Pages of Technical Information Deleted Pursuant to Confidential Treatment
Request]
NORTEL NORTEL
NETWORKS
How the world shares ideas.
FAX - IN ORDER FORM
Page __ of __
COMPANY: Nortel Use Only
CITY & STATE: ORDER / RMA#
CUSTOMER / SITE / ID # / Project Number: ____________
PURCHASE ORDER # Nortel Use Only
NAME OF CONTACT PERSON: Fax Number:
TYPE OF SYSTEM: DMS-10 DMS-100 BOC IOC OTHER
MATERIAL REQUIRED
# Qty. PEC / CPC / Part # Warranty Date
1
2
3
4
5
6
7
8
9
10
Ship to: Nortel
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT V
TO THE
CRICKET COMMUNICATIONS, INC.
SYSTEM EQUIPMENT PURCHASE AGREEMENT
AFFILIATES
Chase Telecommunications, Inc.
