Exhibit 10.7
PURCHASE AND LICENSE AGREEMENT [NORTEL NETWORKS LOGO]
This Purchase and License Agreement ("Purchase and License Agreement") is
between Nortel Networks Inc. ("Nortel Networks") and Triton PCS Equipment
Company L.L.C. ("Triton PCS") effective as of the last date signed. Additional
terms related to Triton PCS's purchase or license of Products or Services may be
added by written agreements ("Supplements") referencing the Purchase and License
Agreement, collectively referred to as the "Agreement". The Services Supplement
is attached hereto and incorporated by reference. Unless otherwise terminated in
accordance with the terms hereof, this Agreement will commence on the last date
signed and terminate three (3) years there from.
1. DEFINITIONS
a) "Furnish-only" means Products that Triton PCS installs.
b) "Hardware" means a Nortel Networks machine or components.
c) "Products" are any Hardware, Software or Third Party Vendor Items provided
under this Agreement.
d) "Services" means the activities to be undertaken by Nortel Networks pursuant
to an Order, including, but not limited to, engineering, maintenance and
installation, implementation, design, consulting, business planning, network
planning and analysis.
e) "Software" is owned or licensed by Nortel Networks, its parent or one of its
subsidiaries or affiliates, and is copyrighted and licensed, not sold. Software
consists of machine-readable instructions, its components, data, audio-visual
content (such as images, text, recordings or pictures) and related licensed
materials including all whole or partial copies.
f) "Third Party Vendor Item" includes "Third Party Hardware" and "Third Party
Software" and means any non-Nortel Networks hardware and/or software supplied to
Triton PCS under this Agreement.
2. ORDERS
Triton PCS may acquire Products or Services by issuing a written purchase order
signed by an authorized representative or, if Triton PCS is enrolled in any then
current Nortel Networks' electronic commerce program, by submitting electronic
orders (collectively, "Orders"). All Orders shall reference this Agreement and
specify the quantity, price, Nortel Networks quotation number, shipping and
billing instructions, installation location, delivery dates, commencement date
for Services, any statement of work, and any other special instructions. All
Orders will be governed by and cannot alter the terms and conditions of this
Agreement. Nortel Networks' written or electronic communication accepting the
Order, shipment of Products or commencement of Services will be Nortel Networks'
acceptance of Triton PCS's Order.
3. ELECTRONIC COMMERCE PROGRAMS
By enrolling in any Nortel Networks' electronic commerce program, Triton PCS
agrees to comply with the terms of such program. Triton PCS agrees that all
electronic Orders issued are equivalent to a written Order, are governed by the
terms and conditions of this Agreement and that in the event of any conflict
between this Agreement and the information contained in Triton PCS's or Nortel
Networks' electronic commerce website, this Agreement governs. Triton PCS is
responsible for the use and protection of all electronic commerce passcodes
provided by Nortel Networks and agrees that all Orders submitted using such
passcodes are valid and binding Orders authorized by Triton PCS. Nortel Networks
shall have no liability to Triton PCS due to Triton PCS's failure to access
Triton PCS's or Nortel Networks' electronic commerce website or errors or
failures relating to its operation.
4. LICENSED USE OF SOFTWARE
Nortel Networks grants Triton PCS a nonexclusive license to use a copy of the
Software to the extent of the activation or authorized usage level. To the
extent Software is furnished for use with designated Products or Triton PCS
furnished equipment ("CFE"), Triton PCS is granted a nonexclusive license to use
Software only on such Products or CFE, as applicable. Software contains trade
secrets and Triton PCS agrees to treat Software as Information. Triton PCS will
ensure that anyone who uses the Software does so only in compliance with the
terms of this Agreement. Triton PCS shall not a) use, copy, modify, transfer or
distribute the Software except as expressly authorized; b) reverse assemble,
reverse compile, reverse engineer or otherwise translate the Software; c) create
derivative works or modifications unless expressly authorized; or d) sublicense,
rent or lease the Software. Third parties who have licensed intellectual
property to Nortel Networks shall be deemed to be beneficiaries of Nortel
Networks' rights under this clause, to the extent that such intellectual
property is included in or is associated with the licensed software. Upon
termination of the license (in accordance with its terms) or breach of the
license (after the expiration of any applicable notice and cure period) by
Triton PCS or in the event designated Product or CFE is no longer in use, Triton
PCS will promptly return the Software to Nortel Networks or certify its
destruction. Nortel Networks may audit by remote polling or other reasonable
means to determine Triton PCS's Software activation or usage levels. With
respect to Third Party Software, Triton PCS agrees to abide by the terms
provided by Nortel Networks with respect to any such software. Triton PCS
further agrees that the terms contained in any third party "shrink wrap" or
"click" licenses shall govern the use of such software.
5. CHARGES AND PAYMENT
Amounts are due upon receipt of invoice and shall be paid by Triton PCS within
30 days. Triton PCS shall pay interest on any late payments at the rate per
annum (charged monthly) equal to the lesser of (i) the Prime Rate plus 1% per
annum or (ii) the maximum rate per annum permissible under applicable law.
"Prime Rate" shall mean the "prime rate" of interest quoted from time to time by
The Wall Street Journal as the base rate on corporate loans made by major United
States money center commercial banks, provided that, in the event that The Wall
Street Journal ceases quoting a "prime rate" of the type described above, "Prime
Rate" shall mean the rate of interest announced publicly from time to time by
Citibank, N.A. as its "base rate" in effect at its principal office in New York,
New York; each change in the Prime Rate shall be effective on the date such
change is published or announced publicly, as applicable, as being effective.
Additional charges for shipping, insurance and special handling shall be quoted
by Nortel Networks and specified in the applicable Order. Charges for
Triton PCS PLA
CONFIDENTIAL INFORMATION
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PURCHASE AND LICENSE AGREEMENT [NORTEL NETWORKS LOGO]
Software may be based on extent of use authorized as specified authorized level.
If any authority imposes a tax, duty, levy or fee, excluding those based on
Nortel Networks' net or gross income and any franchise or license taxes
applicable to Nortel in a Supplement or invoice. Triton PCS agrees to pay the
charges applicable for any activation or usage beyond the Networks operations,
upon a Product or Service supplied by Nortel Networks under this Agreement,
Triton PCS agrees to pay that amount as specified in the invoice, or supply
exemption documentation. Triton PCS is responsible for personal property taxes
for each Product from the date of receipt at the designated Triton PCS site.
Triton PCS consents without qualification to the sale of receivables, in whole
or in part, including all or any part of any associated rights, remedies, and
obligations, by Nortel Networks without further notice and authorizes the
disclosure of this Purchase and License Agreement and Supplements as necessary
to facilitate such sale.
6. WARRANTY
a) Nortel Networks warrants that Hardware i) is free from defects in materials
and workmanship and ii) substantially conforms to Nortel Networks' published
specifications. If Hardware does not function as warranted during the warranty
period, Nortel Networks will, at its option, either i) make it do so, or ii)
replace it with equivalent Hardware.
b) Nortel Networks warrants that when Software is used in the specified
operating environment it will substantially conform to its published
specifications. If Software does not function as warranted during the warranty
period, Nortel Networks will provide a suitable fix or workaround or will
replace the Software; provided Software is within one software release level of
the then-current software.
c) Services will be performed in a professional and workmanlike manner and will
be free from defects in material and workmanship. If Services are not performed
as warranted and Nortel Networks is notified in writing by Triton PCS within 30
days after completion of Services, Nortel Networks will re-perform the
non-conforming Services.
d) The warranty period for Hardware, Software shall be the warranty period
identified in the Nortel Networks warranty matrix in effect at the time of
Triton PCS's Order or as specified in the applicable Supplement.
In the event Nortel Networks cannot repair or replace the affected Products
using commercially reasonable efforts as set forth in this Section 6 , Nortel
Networks will refund to Triton PCS the price paid for the Product.
e) No warranty is provided for i) supply items normally consumed during Product
operation; ii) failures caused by non-Nortel Networks products; iii) failures
caused by a Product's inability to operate in conjunction with other Triton PCS
hardware or software; or iv) performance failures resulting from services not
performed by Nortel Networks. Warranty will be voided by misuse, accident,
damage or modification, failure to maintain proper physical or operating
environment or improper Triton PCS maintenance. Software is not warranted to
operate uninterrupted or error free. THESE WARRANTIES AND LIMITATIONS ARE TRITON
PCS'S EXCLUSIVE WARRANTIES AND SOLE REMEDIES AND REPLACE ALL OTHER WARRANTIES OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
f) Nortel Networks provides Third Party Vendor Items on an "AS IS" BASIS WITHOUT
WARRANTIES OF ANY KIND, unless Nortel Networks specifies otherwise. However,
such Third Party Vendor Items may carry their own warranties and Nortel Networks
shall pass through to Triton PCS any such warranties to the extent authorized.
Notwithstanding the foregoing, Nortel will assist Triton PCS with arranging for
warranty services for Third Party Vendor Items.
7. WARRANTY SERVICE
Nortel Networks provides certain types of warranty repair and exchange service,
without charge. Nortel Networks will inform Triton PCS of the types of warranty
services available to Triton PCS consistent with Nortel Networks standard
practices and response times. Nortel Networks Technical Assistance Services
("TAS") are available for warranty repair during the warranty period at no
charge only for specified Products. When Triton PCS is required to return
Hardware to Nortel Networks for warranty service, Triton PCS agrees to ship it,
at Nortel Networks' expense (unless the Hardware is not defective), suitably
packaged to a location Nortel Networks designates, using a carrier designated by
Nortel Networks. Nortel Networks will return the Hardware to Triton PCS at
Nortel Networks' expense. Nortel Networks is responsible for loss of, or damage
to, Triton PCS Hardware while it is a) in Nortel Networks' possession or b) in
transit from or back to Triton PCS. Any returned Hardware becomes Nortel
Networks' property and, subject to Section 8 Title and Risk of Loss, its
replacement becomes Triton PCS's property. The replacement Hardware may not be
new but will be in working order and equivalent to the item exchanged. The
warranty period for any repaired or replaced Hardware or Software shall be the
greater of ***** from the date of repair or replacement or the remaining
Hardware or Software warranty period. Triton PCS agrees to ensure that exchanged
Hardware is free of any legal obligations or restrictions that prevent its
exchange and represents that all returned items are genuine and unaltered. Where
applicable, before Nortel Networks provides warranty services, Triton PCS agrees
to a) follow the problem determination, problem analysis, and warranty services
request procedures that Nortel Networks provides; b) secure all programs and
data contained in Hardware; and c) inform Nortel Networks of changes in the
Hardware's location. Post warranty services may be available at Nortel Networks'
then-current prices.
8. TITLE AND RISK OF LOSS
Title and risk of loss for ordered hardware shall pass from Nortel Networks to
Triton PCS upon receipt by Triton PCS at the specified Triton PCS delivery site.
9. IMPLEMENTATION AND INSTALLATION SERVICES
Triton PCS agrees to provide sufficient, free and safe access to Triton PCS's
facilities and a suitable physical environment meeting Nortel Networks'
specified requirements to permit the timely installation of Products and/or
performance of Services.
Triton PCS PLA
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***** Certain information on this page has been omitted from this filing and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
PURCHASE AND LICENSE AGREEMENT [NORTEL NETWORKS LOGO]
Nortel Networks will successfully complete the applicable installation,
commissioning and validation procedures before a Product is considered
installed. Nortel Networks may make alterations to any Product and Service as
necessary to comply with specifications, changed safety standards or
governmental regulations, to make a Product non-infringing with respect to any
patent, copyright or other proprietary interest, or to otherwise improve a
Product or Service. Triton PCS is responsible for i) the results obtained from
the use of Products and Services; ii) integration and interconnection with
Triton PCS's hardware and/or third party hardware and/or systems; and iii)
installation of Furnish-only Products.
10. CONFIDENTIAL INFORMATION
a) Confidential information ("Information") means i) Software and Third Party
Software; and ii) all business, technical, marketing and financial information
and data that is clearly marked with a restrictive legend of the disclosing
party ("Discloser").
b) The party receiving Information ("Recipient") will use the same care and
discretion, but not less than reasonable care, to avoid disclosure, publication
or dissemination of Information as it uses with its own similar information that
it does not wish to disclose, publish or disseminate. The Recipient may disclose
Information only to i) its employees and employees of its parent, subsidiary or
affiliated companies who have a need to know for purposes of carrying out this
Agreement; and ii) any other party with the Discloser's prior written consent.
Before disclosure to any of the above parties, the Recipient will have a written
agreement with such party sufficient to require that party to treat Information
in accordance with this Agreement. No party may use any such Information except
in conjunction with such party's performance hereunder
c) The Recipient may disclose Information to the extent required by law
(including SEC or FCC law). However, the Recipient must give the Discloser
prompt notice and make a reasonable effort to obtain a protective order. The
Recipient may disclose Information to the extent required to enforce its rights
hereunder, provided Recipient uses reasonable efforts to protect the
confidentiality of the Information to be disclosed.
d) No obligation of confidentiality applies to any Information that the
Recipient i) already possesses without obligation of confidentiality; ii)
develops independently; or iii) rightfully receives without obligations of
confidentiality from a third party unless the Recipient knows that such third
party is subject to obligations of confidentiality with respect thereto. No
obligation of confidentiality applies to any Information that is, or becomes,
publicly available without breach of this Agreement.
e) The release of any advertising or other publicity relating to this Agreement
requires the prior approval of both parties.
11. PATENTS AND COPYRIGHTS
If a third party claims that Nortel Networks Hardware or Software provided to
Triton PCS under this Agreement infringes or violates that party's United States
or foreign patent, copyright, trademark, trade secret or any other intellectual
property right of any kind, Nortel Networks will defend Triton PCS against that
claim at Nortel Networks' expense and pay all costs and damages that a court
finally awards or are agreed in settlement, provided that Triton PCS a) promptly
notifies Nortel Networks in writing of the claim upon Triton PCS' knowledge
thereof and b) allows Nortel Networks to control, and cooperates (at Nortel
Networks' expense) with Nortel Networks in, the defense and any related
settlement negotiations. (In connection with Triton PCS's efforts to cooperate
in the defense or settlement of any such claim, Nortel Networks shall reimburse
Triton PCS for any amounts paid by Triton PCS to a third party, provided Nortel
approves any such expenditures over $250.00 in advance.). If such a claim is
made or appears likely to be made, Nortel Networks agrees to secure the right
for Triton PCS to continue to use the Hardware or Software, or to modify it, or
to replace it with one that is equivalent. If Nortel Networks determines that
none of these alternatives is reasonably available, Triton PCS agrees to return
the Hardware or Software to Nortel Networks on Nortel Networks' written request.
Nortel Networks will then refund the full amount paid by Triton PCS for any such
Hardware or Software which is returned to Nortel Networks during the three (3)
year term of this Agreement and for any such Hardware and Software so returned
thereafter, will give Triton PCS a credit equal to Triton PCS's net book value
for the Hardware or Software provided Triton PCS has followed generally-accepted
accounting principles. Any such claims against the Triton PCS or liability for
infringement arising from use of the Hardware or Software following a request
for return by Nortel Networks are the sole responsibility of Triton PCS. This
represents Nortel Networks' entire obligation to Triton PCS regarding any claim
of infringement. Nortel Networks has no obligation regarding any claim based on
any of the following: a) anything Triton PCS provides which is incorporated into
the Hardware or Software; b) functionality provided by Nortel Networks in
accordance with Triton PCS specification(s); c) Triton PCS's modification of
Hardware or Software; d) the combination, operation, or use of Hardware or
Software with other products not provided by Nortel Networks as a system, or the
combination, operation, or use of Hardware or Software with any product, data,
or apparatus that Nortel Networks did not provide; or e) infringement by a Third
Party Vendor Item alone, as opposed to its combination with Products Nortel
Networks provides to Triton PCS as a system.
12. INDEMNIFICATION; LIMITATION OF LIABILITY
Each of Nortel Networks and Triton PCS agree to indemnify and hold the other
harmless from and against all losses, claims or demands, for damages to property
or bodily injury (including death) to third parties and causes of action by
third parties (including reasonable legal fees) resulting from the intentional
misconduct or negligent acts or omissions, or strict liability, of it, its
officers, agents, employees, or subcontractors. If Nortel Networks and Triton
PCS jointly cause such losses, claims, demands, damages, or causes of action,
the Parties shall share the liability in proportion to their respective degree
of causal responsibility. In no event shall Nortel Networks or its agents or
suppliers be liable to Triton PCS for any actual direct damages in excess of
***** percent (*****%) of the price paid by Triton PCS for the Product or
Services that are the subject of the claim, regardless of the cause and whether
arising in contract, tort (including negligence) or otherwise. This
Triton PCS PLA
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***** Certain information on this page has been omitted from this filing and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
PURCHASE AND LICENSE AGREEMENT [NORTEL NETWORKS LOGO]
limitation will not apply to claims for damages for bodily injury (including
death) and damage to real property and tangible personal property for which
Nortel Networks is legally liable and payments as set forth in Section 11
Patents and Copyrights. With respect to any losses, damages or claims suffered
by Triton PCS (including any third party claims against Triton PCS) for damages
caused to any tangible property owned by Triton PCS, regardless of whether
provided by Nortel Networks or others, that may result from the negligent
performance by Nortel Networks of any professional Services hereunder, or from
the commission of any criminal acts in performance hereunder for which Nortel
Networks is adjudicated guilty, Nortel Networks shall indemnify Triton PCS
against any such losses, damages, claims or demands up to a maximum of *****
percent (*****%) of the total of the prices paid by Triton PCS for Products
ordered hereunder prior to the date of the event giving rise to the claim. IN NO
EVENT SHALL NORTEL NETWORKS OR ITS AGENTS OR SUPPLIERS BE LIABLE FOR ANY OF THE
FOLLOWING: a) DAMAGES BASED ON ANY THIRD PARTY CLAIM EXCEPT AS EXPRESSLY
PROVIDED HEREIN AND IN SECTION 11; b) LOSS OF, OR DAMAGE TO, TRITON PCS'S
RECORDS, FILES OR DATA; OR c) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF NORTEL
NETWORKS IS INFORMED OF THEIR POSSIBILITY.
13. GENERAL
a) Triton PCS agrees not to assign, or otherwise transfer this Agreement or
Triton PCS's rights under it, or delegate Triton PCS's obligations, without
Nortel Networks' prior written consent, such consent not to be unreasonably
withheld, conditioned or delayed, and any attempt to do so is void; provided,
however, that Triton PCS may assign or transfer this Agreement without the
consent of Nortel Networks (i) to any affiliate of Triton PCS (defined as any
entity which controls, is under the control of, or is under common control with
Triton PCS) or (ii) to any person or entity that acquires, through merger,
purchase or otherwise, all or substantially all of the assets or equity
interests of Triton PCS.. Triton PCS represents and warrants that it is buying
Products and/or Services for its own internal use and not for resale. Triton PCS
agrees to comply in all material respects with all applicable laws including all
applicable export and import laws and regulations. In the event that any
provision of this Agreement or portions thereof are held to be invalid or
unenforceable, the remainder of this Agreement will remain in full force and
effect.
b) The terms and conditions of this Agreement, including any Supplement(s), form
the complete and exclusive agreement between Triton PCS and Nortel Networks and
replace any prior oral or written proposals, correspondence or communications
regarding the subject matter hereof. In the event of a conflict between this
Purchase and License Agreement and a Supplement, the terms in any Supplement(s)
prevail. Any changes to this Agreement must be made by mutual agreement in
writing. All Triton PCS's rights and all of Nortel Networks' obligations are
valid only in the country in which the Products and Services were supplied; the
laws of the State of New York govern this Agreement, exclusive of its conflict
of laws provisions; and nothing in this Agreement affects any statutory rights
of consumers that cannot be waived or limited by contract.
14. INSURANCE
Prior to furnishing any Products or performing any Services, Nortel Networks
shall procure and maintain at its sole expense insurance of the following types
of coverage and limits of liability:
(a) Commercial General Liability (hereafter, "CGL") using forms equivalent to
ISO's (Insurance Services Office) Commercial General Liability Form including
Blanket Contractual Liability and Broad Form Property Damage, with limits of at
least $10,000,000 combined single limit for each occurrence for bodily injury,
property damage and personal injury claims. Limits of insurance may be satisfied
with Primary and Umbrella layers. CGL insurance to include Products Liability
and Completed Operations coverage in the amount of $10,000,000 each occurrence
and $10,000,000 aggregate. All CGL insurance shall designate Triton as an
Additional Insured with respect only to the operations of Nortel Networks. The
policy shall include a Waiver of Subrogation endorsement in favor of Triton PCS
except to the extent of the negligence of Triton PCS.
(b) Worker's Compensation, to the extent required by statute, together with
statutory Disability Benefits Liability as prescribed by the law of the State in
which performance will occur. Employer's Liability of at least $500,000. The
policy shall include a Waiver of Subrogation endorsement in favor of Triton PCS
except to the extent of the negligence of Triton PCS.
(c) Automobile Liability insurance with limits of at least $10,000,000
combined single limit each occurrence for Bodily Injury and Property
Damage claims. The policy shall include Triton PCS as an additional
insured. The policy shall include a Waiver of Subrogation endorsement in
favor of Triton PCS except to the extent of the negligence of Triton PCS.
The limit can be structured through Primary and Excess limits.
(d) "All Risk" Property Insurance, including the perils of transit, flood and
Boiler & Machinery, covering all equipment tools and other property of Nortel
Networks on a replacement cost basis. Any property purchased, acquired, leased,
rented or borrowed by Nortel Networks on behalf of Triton PCS shall be insured
by Nortel Networks' policy during the acquisition, installation and testing
phases and until such time as when the property is validated by Triton PCS.
(e) All coverages must be primary and noncontributory, must be written on an
occurrence basis and must be maintained without interruption from the date of
this Agreement until the date of expiration of this Agreement.
(f) Certificates of insurance or adequate proof of the foregoing must be filed
with Triton PCS prior to commencement of the delivery of the Products or
performance of the Services by Nortel Networks. The certificates of insurance
and the insurance policies required hereunder must reflect Additional Insured
wording as described in this Section with respect to all Products manufactured
for or delivered to Triton PCS. Failure
Triton PCS PLA
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***** Certain information on this page has been omitted from this filing and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
PURCHASE AND LICENSE AGREEMENT [NORTEL NETWORKS LOGO]
by Nortel Networks to provide such certification of insurance does not
constitute a waiver by Triton PCS of these insurance requirements.
(h) Nortel Networks shall cause its insurers to notify Triton PCS at least
thirty (30) days prior to cancellation of the required insurance policies.
(i) Nortel Networks is responsible for all deductible payments.
15. TERMINATION
(a) Triton PCS may, at its option and upon written notice to Nortel Networks,
terminate this Agreement in whole or in part, without penalty, if Nortel
Networks is in default under any material terms of this Agreement, and action to
correct such default, if curable, is not commenced within thirty (30) days after
receipt of notice from Triton PCS and such default is not thereafter cured
within sixty (60) days after commencement of correction, unless Nortel Networks
cannot complete such cure within such period for reasons beyond its control and
Nortel Networks is continuing to diligently pursue the cure, in which case such
default shall be cured no later than one hundred eighty (180) days after Nortel
Networks' original receipt of notice under this Section 115(a).
(b) In the event Triton PCS terminates this Agreement in accordance with Section
15(a), Triton PCS may at its option:
(i) return to Nortel Networks, freight collect, any Product delivered or
installed which is the subject of the default above if such default is Nortel
Networks inability to correct defects therein, in which event Nortel Networks
shall refund to Triton PCS all amounts paid to Nortel Networks under this
Agreement with regard to such Product and the Installation thereof; or
(ii) in the event that Nortel Networks refuses or fails to perform, or otherwise
defaults in, its obligations hereunder, it is agreed that Triton PCS shall have,
in addition to any other rights available to it, the right to obtain temporary
or permanent performance of such obligations or injunctive relief, as may be
applicable.
Except as expressly provided in this Agreement, the remedies provided in
Sections 15(a) and 15(b) shall be Triton PCS' exclusive remedies in case of
termination for default.
(c) Nortel Networks may terminate this Agreement without any obligation to
deliver Products not yet delivered, or, at its option, temporarily suspend its
performance, without liability, under this Agreement, in the event that Triton
PCS is in default under any material terms of this Agreement and correction is
not commenced within thirty (30) days after receipt of notice from Nortel
Networks and such default is not thereafter cured within sixty (60) days after
commencement of correction, unless Triton PCS cannot complete such cure within
such period for reasons beyond its control and Triton PCS is continuing to
diligently pursue the cure.
(d) If this Agreement expires, or if either Party terminates this Agreement in
accordance with its terms, Nortel Networks `obligations hereunder with respect
to Products already delivered, installed and not returned, and Triton PCS'
obligations with respect to payments for Products not returned, shall continue
in full force and effect.
16. DISPUTE RESOLUTION AND ARBITRATION
(a) Disputes
(i) Subject to a Party's right to obtain injunctive relief, Nortel Networks and
Triton PCS will attempt to settle any claim or controversy between them through
consultation and negotiation in good faith and with a spirit of mutual
cooperation. After attempts to resolve a dispute by Nortel Networks and Triton
PCS have failed, either Party may, upon notice to the other, request that such
controversy or claim be referred to the appropriate management personnel of each
Party for negotiation and resolution. If such a request is made, the applicable
and appropriate management-level personnel of the Parties shall meet in person
or by telephone within seven (7) days after such request and shall review and
attempt to negotiate a mutually acceptable resolution of the controversy or
claim in dispute. If after such meeting, such attempt to resolve the dispute has
failed, the dispute shall be referred to binding arbitration, as follows:
(i) Three arbitrators will be chosen in accordance with the procedures of the
AAA, which arbitrators will meet within thirty (30) days of the appointment of
all of them to commence the arbitration.
(ii) Arbitration. Other than as specified in this Section, the arbitration will
be conducted in accordance with the arbitration rules promulgated under the
American Arbitration Association ("AAA"). The arbitrator(s) shall be required to
furnish, promptly upon conclusion of the arbitration, a written decision,
setting out the reasons for such a decision. The decision of such arbitration
will be final and binding on the Parties hereto, and any such decision may be
enforced by either Party in any court of competent jurisdiction. Each Party will
bear its own expenses and an equal share of the expenses of the third arbitrator
and the fees, if any of the AAA. Any arbitration shall take place in New York,
New York, unless otherwise agreed to by the Parties.
TRITON PCS EQUIPMENT COMPANY L.L.C.
By: Triton Management Company, Inc., its manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: EVP & CFO
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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State of Incorporation: DE
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Tax I.D. Number: ▇▇-▇▇▇▇▇▇▇
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Date: 5/14/02
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NORTEL NETWORKS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
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Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇
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Date: 5/16/02
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Triton PCS PLA
CONFIDENTIAL INFORMATION
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SERVICES SUPPLEMENT TO THE PURCHASE AND LICENSE AGREEMENT [NORTEL NETWORKS LOGO]
The various Services that Triton PCS may obtain from Nortel Networks, associated
pricing, and the manner in which they will be provided are governed by this
Services Supplement ("Supplement"). The terms and conditions provided in this
Supplement will apply solely to the provision of Services.
1. DEFINITIONS
(a) "Deliverables" means all Materials and Software delivered to Triton PCS
pursuant to an Order, but specifically excluding Tools.
(b) "Materials" means any and all designs, documentation and other work product
prepared by Nortel Networks and delivered to Triton PCS pursuant to an Order
(and specifically excluding Software).
(c) "Statement of Work" is a document, prepared by Nortel Networks, describing
the scope of work, schedule, prices, Deliverables, and other relevant terms
specific to a Service, which may, from time to time, be mutually agreed to in
writing by Triton PCS and Nortel Networks. A Statement of Work shall be governed
by the terms and conditions of, and constitute a part of, this Supplement.
(d) "Services Descriptions" means Nortel Networks published specifications for
certain Services in effect at the time Nortel Networks accepts an Order.
(e) "Tools" mean any diagnostics, documentation, test equipment or other items
used by Nortel Networks in the performance of the Services.
2. CHARGES AND PAYMENT
Fees for Services may be based on a fixed price, time and materials, time and
materials with deliverables or other commercial arrangement, as specified in an
Order. Unless otherwise included as part of a fixed price, Triton PCS will
reimburse Nortel Networks for all reasonable out-of-pocket expenses incurred by
Nortel Networks in performing the Services (including, without limitation, all
reasonable travel, meal, lodging and mileage expenses), provided that expenses
greater than $500 must be approved in writing in advance by Triton PCS. All fees
for Services are subject to annual review and adjustment by Nortel Networks.
Unless otherwise provided in a valid Nortel Networks quotation, proposal or
Statement of Work, Nortel Networks shall invoice Triton PCS one hundred percent
of the price of the Services upon completion unless the Service continues beyond
thirty days, in which case Nortel Networks shall invoice Triton PCS at the end
of each month for the Services performed in that month. Certain ongoing Services
(for example maintenance and managed services) ordered by Triton PCS may be
invoiced monthly, quarterly or yearly, as appropriate, in advance of the
performance of such Services in such month, quarter or year by Nortel Networks.
3. CHANGES TO ORDERS
The parties may, by mutual agreement, make changes to the scope of work,
schedule, prices, deliverables or other substantive aspects of the Services
("Change"). The party asking for a Change shall describe in writing the details
of the requested Change ("Change Order Request"). Nortel Networks shall provide
in writing to Triton PCS a summary of any and all adjustments to the charges and
other changes resulting from the Change Order Request. In no event shall any
Change be effective or acted upon in any way until such time as (i) an
authorized representative of both parties has agreed to the terms of the Change
Order Request in writing and (ii) Nortel Networks receives an Order from Triton
PCS for any additional amounts resulting from the Change Order Request.
4. TRITON PCS RESPONSIBILITIES
Triton PCS agrees to cooperate with Nortel Networks in the performance by Nortel
Networks of the Services, including, without limitation, providing Nortel
Networks with sufficient, free and timely access to facilities, data,
information and personnel of Triton PCS; including the recovery by Nortel
Networks of any Tools. In addition, Triton PCS shall be responsible for the
accuracy and completeness of all Triton PCS data and information that it
provides or causes to be provided to Nortel Networks. In the event that there
are any delays by Triton PCS in fulfilling its responsibilities as stated above,
or there are errors or inaccuracies in the information provided, Nortel Networks
shall be entitled to (i) a day-to-day delay in performance of Nortel Network's
obligations as a result of Triton PCS' delay and (ii) reimbursement by Triton
PCS of the out-of-pocket expenses incurred by Nortel Networks as a result of
Triton PCS' delay, including expenses incurred in connection with redeployment
and rescheduling of personnel; provided that Nortel Networks will use its
reasonable efforts to minimize such expenses. It is understood and agreed that
the Services provided by Nortel Networks may include the advice and
recommendations of Nortel Networks, but all decisions in connection with the
implementation of such advice and recommendations shall be the sole
responsibility of, and made by, Triton PCS.
5. PERSONNEL
Nortel Networks and Triton PCS are each responsible for the supervision,
direction, compensation and control of their own employees and subcontractors.
Nortel Networks may subcontract any portion or all of the Services to
subcontractors selected by Nortel Networks, upon no less than 10 days prior
written notice to Triton PCS. Neither party shall knowingly solicit to hire
employees of the other party with whom it had contact as a result of the
performance of the Services for a period ending six months after completion of
the Services. Neither party shall be precluded from conducting generalized
searches for employees (and hiring those employees who respond to generalized
searches) either through the use of search firms or advertisements in the media,
provided that searches are not specifically targeted to employees providing
Services.
6. PATENTS AND COPYRIGHTS
Nortel Networks will indemnify Triton PCS against any third party claims that
any Materials infringe or violate such third party's intellectual property
rights. Such indemnity will be in accordance with Section 11, Patents and
Copyrights, as set forth in the Purchase and License Agreement. In the event
Triton PCS is required to return to Nortel Networks any Materials in accordance
with that provision, Nortel Networks will give Triton PCS a credit equal to the
amounts paid by Triton PCS for the infringing Materials returned.
Triton PCS PLA
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SERVICES SUPPLEMENT TO THE PURCHASE AND LICENSE AGREEMENT [NORTEL NETWORKS LOGO]
7. INTELLECTUAL PROPERTY RIGHTS
(a) Nortel Networks, on behalf of itself and its subcontractors, reserves all
proprietary rights in and to (i) all methodologies, designs, engineering
details, and other data pertaining to the Services and the Materials delivered,
(ii) all original works, computer programs, updates developed in the course of
providing the Service (except Triton PCS's developed programs), (iii)
discoveries, inventions, patents, know-how and techniques arising out of the
Services and (iv) any and all products (including software and equipment)
developed as a result of the Services. The foregoing shall not apply to programs
developed by Triton PCS. The performance by Nortel Networks of Services shall
not be deemed work for hire.
(b) Nortel Networks grants to Triton PCS a perpetual, non-exclusive, world-wide,
paid up license to use, copy and modify the Materials produced by Nortel
Networks and delivered to Triton PCS in the performance of Services solely for
Triton PCS's internal business purposes.
(c) It is understood between the parties that Nortel Networks will employ its
know-how, techniques, concepts, experience and expertise, as well as all other
intellectual property, including that to which it reserves its rights hereunder,
to perform services the same as or similar to the Services for others.
8. MAINTENANCE SERVICES
Nortel Networks provides Product maintenance Services either at Triton PCS's
location or at a service center to keep Products in, or restore them to,
conformance with published specifications.
(a) To be eligible for maintenance Services, the Products must be in good
operating condition and at revision levels supported by Nortel Networks.
(b) Relocation of Products under maintenance Services may result in adjustments
to the price and response times. Continued maintenance Services for such
Products are subject to reasonable availability from Nortel Networks or an
authorized maintenance service provider.
9. GENERAL
In the event of a conflict between this Supplement and any other documents
attached hereto or referenced herein, the terms in this Supplement prevail.
10.PRICING AND AVAILABLE SERVICES
The Services to be provided and/or the applicable pricing shall be as set forth
in (i) an accepted Nortel Network's proposal, (ii) a Statement of Work or (iii)
the Services Descriptions.
Triton PCS PLA
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Page 7 of 8
WARRANTY MATRIX [NORTEL NETWORKS LOGO]
Products may be purchased only in countries where Nortel Networks makes these
products available for purchase and use.
The following Hardware and Software items shall have the corresponding warranty
periods:
CARRIER PRODUCTS HARDWARE SOFTWARE
----------------------------------------------------------------------------------------------------------------------------
DMS, Optical Networks, AccessNode and Wireless ***** from ship date ***** from ship date
product families
CVX, ▇▇▇ ▇▇▇▇▇▇▇, UE IMAS, Alteon and ***** from ship date ***** from ship date
Shasta products
JungleMux ***** from ship date ***** from ship date
Carrier Data Products (Passport; Bay and Micom See current Nortel Networks See current Nortel Networks
products) price list. price list.
All other product families not listed (unless specified ***** from ship date ***** from ship date
otherwise in writing)
The following Products require an Enterprise Supplement to enable purchase.
ENTERPRISE PRODUCTS HARDWARE SOFTWARE
----------------------------------------------------------------------------------------------------------------------------------
Data Products (e.g., Access CN, Advanced Video, See current Enterprise Data See current Enterprise Data
Backbone CN, Baystack, Business Communications Products Product Catalog Products Product Catalog
Manager, Contivity, Instant Internet, Net ID, Passport
LAN and WAN Solutions)
Portal and Symposium Products ***** from ship date ***** from ship date
The following Products require an eBusiness Solutions Supplement to enable
purchase.
eBUSINESS PRODUCTS HARDWARE SOFTWARE
----------------------------------------------------------------------------------------------------------------------------------
Clarify ECRM and eBusiness Service Provider Products As quoted As quoted
This Warranty Matrix may be revised from time to time.
Triton PCS PLA
CONFIDENTIAL INFORMATION
Page 8 of 8
***** Certain information on this page has been omitted from this filing and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.