EXHIBIT 10.1
MASTER PURCHASE AND LICENSE AGREEMENT
This Master Purchase and License Agreement is made as of April 23,
1997, by and between CELLULAR TECHNICAL SERVICES COMPANY, INC., a Delaware
corporation ("CTS"), and GTE MOBILNET SERVICE CORP., a Delaware corporation
("Customer"). In consideration of the mutual promises and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, CTS and Customer hereby
agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following
terms shall have the following meanings:
1.1 "Acceptance Test Plan" means the CTS standard form of
Acceptance Test Plan set forth in the attached SCHEDULE E.
1.2 "Agreement" means this Master Purchase and License Agreement
and the attached Schedules, together with all amendments and supplements which
may be made thereto from time to time by mutual agreement of the parties.
1.3 "Customer Facility" means each Regional Processor Complex,
Cell Site, or other location within a Licensed Market at which any Component of
a System is installed or to be installed under this Agreement.
1.4 "Cell Site" means a cellular radio base station location
consisting of radio, antenna, and power equipment: (i) which provides cellular
telecommunications service to a particular geographic area; (ii) in which
certain Components of a System are installed in accordance with this Agreement
and an applicable Market Purchase Agreement; (iii) which complies with the
Infrastructure and Environmental Requirements; and (iv) in which a direct
antenna frame hook-up is provided by Customer for the Cell Site System Hardware
installed therein.
1.5 "Component" means an individual item of the Hardware or
Licensed Programs.
1.6 "Confidential Information" shall have the same meaning
ascribed to such term in the Nondisclosure Agreement.
1.7 "Customer Affiliate" means a person, association,
partnership, corporation or joint stock company or trust that directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with, the Customer. For purposes of the above definition,
"control" means: (i) ownership of a majority of the voting power of all classes
of voting stock; (ii) ownership of a majority of the beneficial interests in
income and capital of an entity other than a corporation; (iii) ownership of a
general partnership interest in a limited partnership; or (iv) ownership of a
managing partnership interest in a general partnership."
1.8 "Customization" means any modification, enhancement, or
improvement to any Licensed Program that is made by CTS at the request of
Customer in accordance with this Agreement, and which is not made generally
commercially available by CTS to other cellular carrier licensees of CTS in the
United States.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 1
1.9 "Documentation" means CTS's standard user manual(s) for a
System and all other written documentation for a System which CTS furnishes to
Customer for purposes of this Agreement (as such documentation may be reasonably
modified or updated from time to time by CTS with notice to Customer).
Documentation may include, if applicable, documentation provided to CTS by its
suppliers or licensors to the extent CTS is authorized by them to provide such
documentation to Customer.
1.10 "Fees" means the moneys required to be paid by Customer to
CTS in connection with this Agreement, including without limitation charges for
Hardware, Licensed Programs, out-of-pocket reimbursable expenses, and any other
charges for goods and/or services provided by CTS in connection with this
Agreement.
1.11 "Hardware" means the following with respect to the System
installed or to be installed in a given Licensed Market: (i) the computer
equipment and peripherals (including any operating system software bundled with
such equipment as supplied by the equipment manufacturer) described in the
applicable Market Purchase Agreement for such System in such quantities as CTS
and Customer agree are necessary to operate the initial configuration of such
System; and (ii) any additional computer equipment and peripherals as CTS and
Customer may, from time to time, agree in writing to add to such System as
Hardware.
1.12 "Implementation Schedule" means each mutually acceptable
schedule showing the time periods during which CTS and Customer will cause
appropriate persons to begin and complete delivery, installation, training,
and/or acceptance testing of particular Components for a System.
1.13 "Infrastructure and Environmental Requirements" means the
physical, electrical, connectivity, and other infrastructure and environmental
requirements described in Documentation furnished by CTS to Customer, which
requirements are to be satisfied by Customer at each Customer Facility in
accordance with this Agreement.
1.14 "Intellectual Property Rights" means any valid patent,
copyright, trade secret, trademark, or other intellectual property right.
1.15 "License" means the license granted to Customer under
Subsection 2.1, below.
1.16 "Licensed Programs" means the following with respect to the
System installed or to be installed in a given Licensed Market: (i) the CTS-
owned computer software (including firmware and patches), in object code form
only, and the Third-Party Software, in object code form only, described in the
applicable Market Purchase Agreement for such System; (ii) all New Releases,
Maintenance Releases, and Customizations provided by CTS to Customer for such
System; and (iii) any additional software, data tables, and programs as CTS and
Customer may, from time to time, agree in writing to add to such System as
Licensed Programs.
1.17 "Licensed Market" means, for each of the market areas
identified in the attached SCHEDULE C, the aggregate of: (i) the corresponding
cellular service areas identified in such Schedule which are covered by a System
installed in accordance with this Agreement and an applicable Market Purchase
Agreement; and (ii) any modifications to such areas as Customer may, from time
to time, determine with the consent of CTS, which consent will not be
unreasonably withheld.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 2
1.18 "Maintenance Release" means a correction of errors, bugs, or
defects in the Licensed Programs which is made generally commercially available
by CTS to its cellular carrier licensees in the United States, and may also
include, at CTS's discretion, any minor modification, enhancement, or
improvement to the Licensed Programs.
1.19 "Market Purchase Agreement" means: (i) the agreement
between CTS and Customer or a Customer Affiliate specifying the pricing, sizing,
configuration, and Customer's or Customer Affiliate's election of available
options for the initial configuration of a System; (ii) all amendments,
supplements, and addenda which may be made to such agreement by mutual agreement
of the parties; and (iii) all Purchase Orders issued under such agreement and
accepted by CTS as described in Subsection 4.2, below. Such agreement shall be
based on the CTS standard form Market Purchase Agreement (as the same may be
reasonably modified or updated from time to time by CTS with notice to
Customer).
1.20 "New Release" means any computer program or portion thereof
which involves any modification, enhancement, or improvement to any Licensed
Programs that is: (i) made generally commercially available by CTS to its
cellular carrier licensees in the United States; (ii) identified by CTS as
either a "major" or "minor" new release; and (iii) not merely a Maintenance
Release.
1.21 "Nondisclosure Agreement" means, collectively, the following
agreements: (i) that certain Nondisclosure Agreement dated as of August 29,
1995 between CTS and GTE Services Corp., GTE Mobilnet of California Limited
Partnership, and GTE Mobilnet of Santa ▇▇▇▇▇▇▇ Limited Partnership; (ii) each
agreement executed by a Customer Affiliate in which the Customer Affiliate
agrees to be bound by the provisions of the Nondisclosure Agreement described in
clause (i) above; (iii) any additional Nondisclosure Agreement between CTS and a
Customer Affiliate; and (iv) any amendments and supplements which may be made to
any of the foregoing agreements from time to time by mutual agreement of the
parties. A copy of the Nondisclosure Agreement, as supplemented, is attached
hereto as SCHEDULE H.
1.22 "Purchase Order" means a written purchase order provided by
Customer to CTS in accordance with Subsection 4.2, below.
1.23 "Regional Processor Complex" means each Customer location at
which regional processors for a System are installed or to be installed in
accordance with this Agreement and the applicable Market Purchase Agreement.
1.24 "Roaming Service Agreement" means that certain Service
Agreement for Real-Time Prevention of Roaming Cloning Fraud dated as of the date
of this Agreement between CTS and Customer, together with all amendments and
supplements which may be made thereto from time to time by mutual agreement of
the parties.
1.25 "Specifications" means the specifications for a System as
set forth in the attached SCHEDULE D.
1.26 "Support Services Agreement" means that certain Support
Services Agreement dated as of the date of this Agreement between CTS and
Customer, together with all amendments and supplements which may be made thereto
from time to time by mutual agreement of the parties.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 3
1.27 "System" shall mean the combination of the Hardware and
Licensed Programs configured and installed for use by Customer within a
designated Licensed Market in accordance with the terms of this Agreement and an
applicable Market Purchase Agreement.
1.28 "Third Party" means any person or entity other than CTS,
Customer, or a Customer Affiliate.
1.29 "Third-Party Software" means the following with respect to a
given System: (i) the computer programs described in the applicable Market
Purchase Agreement which are licensed to CTS by Third Parties and which CTS
sublicenses to Customer, in object code form only, as part of the Licensed
Programs, but for which CTS has no source code rights; and (ii) any additional
software, data tables, and programs as CTS and Customer may, from time to time,
agree in writing to add to such System as Third-Party Software.
2. LICENSE OF SOFTWARE.
2.1 GRANT OF LICENSE. Subject to the terms of this
Agreement, CTS hereby grants to Customer a non-exclusive, non-transferable
license (the "License") to use the Licensed Programs and Documentation for
the purpose of operating a System for its intended use, as described in the
Specifications, within each Licensed Market. The term of the License granted
above shall be [*] Licensed Programs and Documentation licensed and furnished
hereunder for the purpose of operating Systems installed prior to the
expiration or termination of this Agreement, subject to the terms of
Subsection 14.3, below.
2.2 LICENSE LIMITATIONS.
2.2.1 The License sets forth the entirety of Customer's
rights in connection with the Licensed Programs, Documentation, and all
Intellectual Property Rights in connection with the Licensed Programs and
Documentation. Accordingly, Customer shall not: (i) use the Licensed
Programs or Documentation for any purpose other than as expressly set forth
in Subsection 2.1, above; or (ii) permit any Third Party to use or have
access to any Licensed Programs or Documentation without the express prior
written approval of CTS (except for Customer's representatives who are
authorized by Customer to use Licensed Programs and Documentation in
accordance with this Agreement and for whom Customer is responsible under
Subsection 10.2, below).
2.2.2 Without limiting the generality of the foregoing,
Customer shall not directly or indirectly do any of the following (except as
expressly set forth in this Agreement or other written agreement between CTS
and Customer): (i) sublicense any rights under the License; (ii) print or
copy the Licensed Programs, other than such number of copies as authorized by
CTS in the Documentation for use solely by Customer in accordance with this
Agreement; (iii) print or copy the Documentation, other than copies for use
solely by Customer in accordance with this Agreement and subject to the
Nondisclosure Agreement; (iv) modify or prepare derivative works of the
Licensed Programs or Documentation; (v) reverse engineer, decompile,
disassemble, or otherwise create, or attempt to create, or assist others to
create, the source code form of any Licensed Programs or a product
functionally equivalent to the System or any Licensed Programs, unless
created without the use of any Licensed Programs or other Confidential
Information of CTS; or (vi) remove, obscure, or alter any Intellectual
Property Right or confidentiality notices or legends appearing in or on any
Licensed Programs or Documentation. In addition, with respect to the notices
and legends described above, Customer shall: (a) ensure that each copy or
reproduction of all or any portion of the Licensed Programs or Documentation
includes all such notices and legends; and (b) upon CTS's reasonable prior
written
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 4
notice, provide CTS with reasonable access to Customer's records and
facilities for the limited purpose of auditing and verifying Customer's
compliance with the terms of this Subsection 2.2.2.
2.3 NEW RELEASES, MAINTENANCE RELEASES, AND CUSTOMIZATIONS.
2.3.1 NEW RELEASES. After the initial installation of a
System, CTS will provide all New Releases for such System to Customer [*], so
long as Customer continuously purchases for such System the software
subscription services described in the Support Services Agreement and
Customer is not in breach or default under this Agreement or the Support
Services Agreement. Otherwise, CTS, in its discretion, may provide New
Releases for such System to Customer on such terms and conditions and for
such Fees as the parties may mutually agree to in writing. The parties
acknowledge that New Releases may require the purchase of new or additional
hardware or software.
2.3.2 MAINTENANCE RELEASES. After the initial
installation of a System within a given Licensed Market, CTS will provide all
Maintenance Releases for such initial System to Customer [*], so long as
Customer continuously purchases for such System the basic support services
offered pursuant to the Support Services Agreement and Customer is not in
breach or default under this Agreement or the Support Services Agreement.
Otherwise, CTS, in its discretion, may provide Maintenance Releases for such
System to Customer on such terms and conditions and for such Fees as the
parties may mutually agree to in writing.
2.3.3 CUSTOMIZATIONS. Customer may, from time to time,
wish to have certain features of the Licensed Programs customized to its
specifications. CTS shall have the exclusive right to make and deliver such
Customizations. All Customizations will be performed pursuant to one or more
separate, written agreements between CTS and Customer, which shall specify
the deliverables, milestones, compensation, confidentiality requirements, use
restrictions, and other terms, conditions, and procedures as CTS and Customer
may mutually agree to with respect to such Customizations.
3. SUPPLY OF HARDWARE.
3.1 FROM CTS. Subject to the terms of this Agreement, CTS
hereby agrees to sell, and Customer hereby agrees to buy, the Hardware
described in the applicable Market Purchase Agreement for a given System in
such quantities as CTS and Customer agree are necessary to operate such
System.
3.2 FROM THIRD PARTIES. Notwithstanding Subsection 3.1,
above, Customer may purchase quantities of the CTS-certified Hardware
specified in the attached SCHEDULE B either from CTS or Third Parties
approved in advance and in writing by CTS, subject to the terms of this
Agreement. Certain CTS-certified Hardware purchased from Third Parties will
be subject to an integration Fee as specified in the attached SCHEDULE A.
CTS may, from time to time, update the list of CTS-certified Hardware
specified in SCHEDULE B with written notice to Customer. Except as
specifically set forth herein, CTS shall have no liability with respect to
any Hardware components supplied by any person or entity other than CTS.
4. SYSTEM DEPLOYMENTS.
4.1 COMMITMENTS FOR SYSTEM DEPLOYMENTS. As partial
consideration for [*] offered by CTS, as set forth in the [*], Customer
hereby commits to purchase from CTS such quantities of Components such that
the aggregate size of all Systems within [*] shall be at least [*]. If
Customer does not comply with the foregoing commitments within the
corresponding time period described above,
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 5
then CTS may, at its election and upon written notice to Customer, [*]
granted by CTS to Customer with respect to any order of CTS products or
services place after the date that Customer fails to comply with this
Subsection.
4.2 INITIAL SYSTEM DEPLOYMENTS; APPLICATION TO CUSTOMER
AFFILIATES. The parties agree that the initial configuration of a System
will be deployed for commercial use pursuant to the terms and conditions of
this Agreement and a Market Purchase Agreement. This Agreement anticipates
the future execution of Market Purchase Agreement(s) for a given System by
CTS and either Customer or Customer Affiliates. Each Market Purchase
Agreement must be executed by an authorized representative of Customer (or
the applicable Customer Affiliate) and an officer of CTS at the vice
president level or higher. Each Market Purchase Agreement executed by a
Customer Affiliate shall incorporate this Agreement by reference and include
a statement that the Customer Affiliate acknowledges and agrees to be bound
by the terms and conditions of this Agreement. For each Market Purchase
Agreement executed by CTS and a Customer Affiliate and all transactions
thereunder between CTS and such Customer Affiliate: (i) all rights and
obligations of "Customer" under this Agreement, as it applies to such Market
Purchase Agreement and related transactions, shall be deemed to be the rights
and obligations of the Customer Affiliate; and (ii) Customer and such
Customer Affiliate shall be jointly and severally liable for the obligations
of "Customer" under this Agreement, as it applies to such Market Purchase
Agreement and related transactions.
4.3 ADDITIONAL ORDERS. After execution of the Market
Purchase Agreement for a given System, Customer or the applicable Customer
Affiliate may order additional quantities of Components or additional
services by delivering one or more written Purchase Orders to CTS. Each
Purchase Order shall contain: (i) the date and number of the Purchase Order;
(ii) the type, quantity, and price of each item ordered; (iii) the requested
date of delivery or performance; (iv) the express incorporation by reference
of the provisions of this Agreement and the applicable Market Purchase
Agreement; and (v) any other mutually acceptable information with respect to
such order. All Purchase Orders are subject to acceptance by CTS, which
shall be evidenced by a written notice stating that CTS accepts the Purchase
Order or by CTS's delivery or performance of the requested Components or
services. Upon such acceptance, the Purchase Order shall become a part of
the Market Purchase Agreement referenced in the Purchase Order.
4.4 GENERAL TERMS. Each System deployment shall: (i)
consist of the Components identified in the applicable Market Purchase
Agreement or CTS-accepted Purchase Order; (ii) be installed at the Customer
Facilities and in accordance with the applicable Implementation Schedule;
(iii) be supported pursuant to the support services options selected by
Customer in the applicable Market Purchase Agreement or CTS-accepted Purchase
Order; (iv) be subject to the Fees and payment terms set forth in Section 9,
below, and in the attached SCHEDULE A; and (v) be subject to acceptance
testing in accordance with Section 7, below, and the applicable terms of the
Acceptance Test Plan set forth in the attached SCHEDULE E.
4.5 GOVERNING TERMS. The provisions of this Agreement,
Support Services Agreement, and Roaming Service Agreement shall govern and
apply to all Market Purchase Agreements and Purchase Orders and to the
provision of all Components and related services by CTS. In no event shall
any terms or conditions of any Purchase Order or other document alter or
amend any provision of this Agreement, Support Services Agreement, or Roaming
Service Agreement, or otherwise control, unless CTS and Customer (or the
applicable Customer Affiliate) both specify in writing that such terms or
conditions shall control.
5. DELIVERY AND INSTALLATION; CHANGES AFFECTING A SYSTEM.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 6
5.1 DELIVERY.
5.1.1 SHIPMENT. Components to be delivered by CTS
hereunder or under a Market Purchase Agreement will be shipped F.O.B. origin
at CTS's facilities in Seattle, Washington U.S.A. or at such other locations
as CTS may specify from time to time. Such Components will be delivered in
accordance with the terms of this Agreement, the applicable Market Purchase
Agreement, and on an Implementation Schedule agreed upon by both CTS and
Customer. CTS reserves the right to make partial shipments and to make
shipments at times convenient to CTS; PROVIDED, that in each case CTS shall
meet the applicable Implementation Schedule in all material respects except
as otherwise provided under this Agreement or any other written agreement
between CTS and Customer.
5.1.2 TITLE. Title to Hardware purchased from CTS shall
pass to Customer upon CTS's delivery thereof to a freight carrier at CTS's
facilities in Seattle, Washington U.S.A. or at such other locations as CTS
may specify from time to time.
5.1.3 INSURANCE, SHIPPING CHARGES, AND RISK OF LOSS.
All Fees are F.O.B. at CTS's facilities in Seattle, Washington U.S.A. In
addition to the Fees described in Section 9, below, and in the attached
SCHEDULE A, Customer shall pay all insurance, freight, brokerage, and
handling charges associated with all shipments of Components. Customer shall
insure the contents of such shipments against damage and risk of loss during
shipment and thereafter. CTS shall assume no liability in connection with
such shipments; PROVIDED, HOWEVER, that CTS shall take directions from
Customer and otherwise assist Customer in coordinating such shipments. In
the absence of specific written instructions from Customer: (i) CTS shall
select the freight carrier for shipments from CTS, but such freight carrier
shall not be construed as CTS's agent; and (ii) CTS shall specify "freight
collect" as Customer's method of payment.
5.2 INSTALLATION AND READINESS OF CUSTOMER FACILITIES.
5.2.1 TECHNICAL MANAGERS - OVERALL COORDINATION.
Customer and CTS shall each designate and provide the other party with the
name, address, and telephone number of one (1) primary and one (1) back up
technical manager for overall coordination between Customer and CTS with
respect to the installation and acceptance of Components for Systems. The
initial technical managers of Customer and CTS for such overall coordination
are identified in the attached SCHEDULE G. Each party shall have the right
to replace such technical managers by providing notice of such replacement to
the other party.
5.2.2 TECHNICAL MANAGERS-MARKET COORDINATION. Customer
and CTS shall each designate and provide the other party with the name,
address, and telephone number of one (1) primary and one (1) back up
technical manager for overall coordination between Customer and CTS with
respect to the installation and acceptance of Components for a System within
a given Licensed Market. The initial technical managers of Customer and CTS
for such market level coordination shall be identified in the applicable
Market Purchase Agreement. Each party shall have the right to replace such
technical managers by providing notice of such replacement to the other party.
5.2.3 INSTALLATION. For each installation of Components
at Regional Processor Complex, CTS will perform the installation, subject to
the terms and conditions of this Agreement and the Fees set forth in SCHEDULE
A. For each installation of Components at a Cell Site, Customer, at its
option, may perform the installation itself or request that the installation
be performed by CTS, subject to the terms and conditions of this Agreement
and the Fees set forth in SCHEDULE A. Prior to any installation by Customer
or any mutually acceptable Third Party, the installers for such entities must
first complete CTS training for such installation as set forth in the
attached SCHEDULE F.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 7
CTS and Customer agree to use commercially reasonable efforts to effect
installations of Components in accordance with the applicable Implementation
Schedule.
5.2.4 READINESS OF CUSTOMER FACILITIES. Customer shall
maintain Customer Facilities in compliance with the Infrastructure and
Environmental Requirements at all times during the term of this Agreement.
Customer shall certify compliance with the Infrastructure and Environmental
Requirements with respect to each Customer Facility at the times specified in
the applicable Implementation Schedule. If, upon inspection, CTS determines
that the Infrastructure and Environmental Requirements are not met, CTS will
promptly notify Customer, and Customer shall cure the Infrastructure and
Environmental Requirements defects within [*]of receipt of CTS's notice. If,
in the reasonable opinion of CTS, all Infrastructure and Environmental
Requirements are not met within such [*], then CTS shall be entitled to
reschedule the installation and any other affected items on the
Implementation Schedule as CTS deems reasonable. If any delay in meeting the
Infrastructure and Environmental Requirements causes the CTS installers or
other personnel to remain longer than the scheduled installation days, or to
make additional trips to Customer Facilities, then, in addition to the Fees
specified in SCHEDULE A, Customer shall pay all additional travel and lodging
expenses plus CTS's then-current day charge for each day that each installer
or other personnel is required to be at the installation site beyond the
scheduled number of days.
5.3 CHANGES TO CUSTOMER EQUIPMENT OR SOFTWARE.
5.3.1 CHANGES IN GENERAL. If any third-party equipment
or software is added to Customer's cellular network after the installation of
a System, and such additional equipment or software has an adverse effect on
such System, then CTS will use commercially reasonable efforts to make any
modifications required to the affected System due to such equipment or
software on such terms and conditions and for such additional fees as the
parties may mutually agree to in writing. Except as the parties otherwise
expressly agree to in writing, the performance warranties set forth in
Section 11, below, will not apply if any Components are adversely affected by
any of Customer's equipment or software installed as part of its cellular
network.
5.3.2 REQUIRED CHANGE IN [*]. The parties acknowledge
that all or part Customer's cellular networks in the Licensed Markets
currently [*] as part of such cellular networks. For that reason, Customer
may elect, under this Agreement, to [*] offered by CTS under SCHEDULE A which
is [*]. The parties agree that, if Customer [*] under this Agreement, and if
[*] such that, within [*] of this Agreement, the [*] is no longer [*], then,
for each affected System, Customer will [*] a mutually agreeable [*] for such
affected System [*] for the Fees applicable to such [*] described in the
attached SCHEDULE A, and CTS will [*]to Customer equal to [*] described in
the attached SCHEDULE A [*] for such [*], in exchange for [*] of such [*] to
CTS. Customer agrees to pay CTS for any services performed by CTS in
connection with [*] at the then-current billing rate of the CTS personnel
performing such services.
5.4 MAINTENANCE OR RELOCATION OF COMPONENTS. Customer may
repair, replace, or relocate Components of a System only to the extent
expressly authorized by, and performed in accordance with, the terms of this
Agreement, the Support Agreement, and CTS-approved policies and procedures.
The parties agree that any relocation of Components will require mutual
cooperation between the parties. Accordingly, Customer will notify CTS of
each relocation at least [*] before commencement of the relocation and,
during such relocation, both parties will coordinate as reasonably necessary
to complete the relocation. The performance warranties set forth in Section
11, below, shall not apply to: (i) any Component during the relocation of
such Component and until such Component is
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 8
re-connected to the System and operating in proper working order; and (ii)
any System to the extent that any action by Customer in violation of this
Subsection adversely affects such System.
6. RESCHEDULING.
6.1 RESCHEDULING BY WRITTEN NOTICE. CTS and Customer will
prepare mutually acceptable Implementation Schedules and the parties will
comply with such Implementation Schedules in all material respects. The
parties agree that rescheduling of any material item on an Implementation
Schedule will require mutual cooperation between the parties. Accordingly,
except as the parties expressly agree to in writing or as otherwise provided
herein, any modification or rescheduling of any material item on an
Implementation Schedule will require the approval of both parties, which
approval will not be unreasonably withheld. If in CTS's opinion any
rescheduling affects other scheduled shipments or scheduled items on an
Implementation Schedule, CTS may reschedule such other shipments or items as
is reasonable given the circumstances. Customer shall pay CTS's
out-of-pocket costs and expenses attributable to any rescheduling by or due
to the fault of Customer. CTS shall pay Customer's out-of-pocket costs and
expenses attributable to any rescheduling by or due to the fault of CTS.
6.2 DELAYS BEYOND REASONABLE CONTROL. If any Component
shipped from CTS is lost or damaged during shipment, CTS will use reasonable
efforts to reschedule a replacement shipment to meet the applicable
Implementation Schedule. Neither party shall be liable for delays in any
Implementation Schedule or any other delivery, shipment, installation, or
acceptance testing of Components due to delays beyond its reasonable control.
In the event of any such delay, all scheduled items on any Implementation
Schedule and other deliveries, shipments, installations, and acceptance
testing of Components affected by such delay shall be extended for a period
equal to the period of the delay, except as the parties otherwise expressly
agree to in writing. If any delivery of Components material to a System is
delayed in excess of [*] due to no fault of a party, then the exclusive
remedy of the other party with respect to such delay shall be the right to
cancel any outstanding order affected by such delay.
7. ACCEPTANCE.
7.1 ACCEPTANCE TESTING FOR INITIAL SYSTEMS. CTS and Customer
will perform acceptance testing, in accordance with the applicable terms of
the Acceptance Test Plan, on each System on the following initial
configuration of such System (an "Initial System"): (a) if Customer's
initial order for the System requests a System deployment of Components [*],
then the Initial System shall be the configuration of the System as ordered;
or (b) if Customer's initial order for the System requests a System
deployment of Components [*], then the Initial System shall be the [*] of the
System ordered. Acceptance testing will commence upon installation of the
Initial System (the "Start Date"). Thereafter, Customer will conduct
acceptance tests in accordance with the applicable terms of the Acceptance
Test Plan for a period not to exceed [*] from the Start Date (the "Acceptance
Testing Period"). Upon the conclusion of the Acceptance Testing Period,
Customer shall complete, execute, and deliver to CTS a written notice, which
shall state with specificity whether the Initial System is accepted or, if
not, to what extent the Initial System does not materially perform in
accordance with the applicable terms of the Acceptance Test Plan. The
Initial System will be deemed accepted by Customer if: (i) the written
notice completed, executed, and delivered by Customer does not specify any
such non-conformities; (ii) Customer does not complete, execute, and deliver
to CTS a written notice specifying any such non-conformities within [*] after
the expiration of the Acceptance Testing Period; (iii) Customer commences use
of the System in connection with Customer's cellular network by collecting
radio frequency "fingerprints" and interdicting counterfeit call attempts; or
(iv) in the event of a dispute
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 9
as to the performance of the System, an executive panel of the parties or an
arbitration panel concludes that the System is materially performing in
accordance with the applicable terms of the Acceptance Test Plan, as provided
in Subsection 7.4, below.
7.2 CORRECTION OF NON-CONFORMITIES.
7.2.1 CORRECTION IN GENERAL. Except as set forth in
Subsection 7.2.2, below, if the written notice described in Subsection 7.1,
above, specifies aspects of an Initial System's performance which do not
materially perform in accordance with the applicable terms of the Acceptance
Test Plan (and if the Initial System is not otherwise deemed accepted by
Customer under Subsection 7.1(i), (ii) or (iv), above), then, within ten (10)
days after CTS's receipt of such written notice, CTS will submit to Customer
a written action plan, which will outline CTS's proposed course of action for
resolution of the non-conformities and a timetable for re-testing the Initial
System in accordance with Subsection 7.1, above. Within ten (10) days after
CTS's submission of the proposed action plan, the parties will agree on a
final action plan, and CTS will thereafter work diligently to implement such
final action plan. Customer will make available to CTS all resources and
facilities reasonably necessary to implement the final action plan, and will
fully cooperate with CTS's efforts. Upon the conclusion of all re-testing
specified in the final action plan, the provisions of Subsection 7.1, above,
shall apply to determine whether the Initial System is deemed accepted by
Customer after such re-testing. If CTS is unable to correct the
non-conformities within the timetables and re-testing periods described in
the final action plan so that the Initial System materially performs in
accordance with the applicable terms of the Acceptance Test Plan, then
Customer may, at its election, either: (i) terminate the License and the
obligations of the parties hereunder as it applies to such Initial System by
providing CTS with written notice of termination within thirty (30) days
after expiration of the timetables and re-testing periods described in the
final action plan; or (ii) accept the Initial System and, if the
non-conformity is due to the Initial System's failure to [*].
7.2.2 [*] DURING CORRECTION. Notwithstanding anything
to the contrary, if the written notice described in Subsection 7.1, above,
specifies aspects of an Initial System's [*] in accordance with the [*] (and
if the Initial System is [*] by virtue of Subsection [*], above), then the
procedures described in Subsection 7.2.1, above, shall apply for the
correction of such non-conformities, EXCEPT THAT, if CTS does not correct
such non-conformities within the designated timetables and re-test periods,
[*].
7.3 APPLICATION TO SUBSEQUENT INSTALLATIONS. The provisions
of this Section 7 shall also apply to the acceptance of Components installed
on a System after the Initial System, EXCEPT THAT: (i) CTS and Customer
shall only test the newly-installed Components in accordance with the
applicable terms of the Acceptance Test Plan; (ii) Customer may reject such
newly-installed Components in the manner described in Subsection 7.1; (iii)
CTS shall correct any non-conformities in the manner described in Subsection
7.2; (iv) if CTS does not correct such non-conformities within the designated
timetables and re-test periods, then Customer may terminate the obligations
of the parties only with respect to such newly-installed Components[*].
7.4 RESOLUTION OF DISPUTES OVER ACCEPTANCE.
7.4.1 The parties agree to settle any dispute arising
out of the acceptance testing provisions described in this Section 7 through
consultation and negotiation in good faith and in the spirit of mutual
cooperation. Accordingly, if, after the conclusion of any Acceptance Testing
Period or re-testing period described in this Section 7, the parties dispute
whether the initial System is materially performing in accordance with the
applicable Acceptance Test Plan, the parties agree to meet to try to resolve
the dispute within fourteen (14) days after one party delivers a written
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 10
request for a meeting to the other party. Such meeting shall be attended by
individuals with decision-making authority to attempt, in good faith, to
negotiate a resolution of the dispute prior to pursuing other available
remedies. If, within fourteen (14) days after such meeting, the parties have
not succeeded in negotiating a resolution of the dispute, then either party
may commence arbitration under Subsection 7.4.2, below, by delivering a
written demand for arbitration to the other party.
7.4.2 If either party commences arbitration in the
manner described above, the dispute will be subjected to binding arbitration
before a panel of three (3) independent arbitrators. Such arbitration shall
be held in [*], in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association, as modified to be consistent
with this Subsection. Such arbitrators shall be selected by mutual agreement
of the parties, or failing such agreement within fourteen (14) days after
delivery of the original written demand for arbitration, each party shall
select one arbitrator and the two selected arbitrators shall mutually agree
upon the selection of a third arbitrator within thirty (30) days from
delivery of the original written demand for arbitration. The arbitrators
shall have the authority to require the submission (at a hearing or
otherwise) of such documents, information, testimony, and other items as the
arbitrators may deem necessary to make a fair and reasonable decision. Within
forty-five (45) days after the appointment of the arbitrators, the
arbitrators will render a written decision. The arbitrators shall be limited
to addressing the issues in dispute arising out of the acceptance testing
provisions described in this Section 7 and interpreting the applicable
provisions of this Agreement and the applicable Market Purchase Agreement in
connection with such issues. The parties agree that the System shall be
deemed accepted for purposes of this Agreement if the arbitrators conclude
that the System is materially performing in accordance with the applicable
Acceptance Test Plan. A judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof and shall constitute
a final adjudication of all matters submitted to arbitration. The
arbitrators shall, as part of their written decision, award attorneys' fees
and related expenses in accordance with Subsection 16.11, below. The costs
of all arbitration services, however, shall be shared equally by the parties.
8. TRAINING, SUPPORT, AND OTHER SERVICES.
8.1 TRAINING SERVICES. CTS will provide the training classes
set forth in the attached SCHEDULE F for Customer for the applicable Fees
described in SCHEDULE A and in accordance with the applicable Market Purchase
Agreement and Implementation Schedule. Upon request, CTS will provide
additional training at such times and locations, upon such terms and
conditions, and for such Fees as the parties may mutually agree to in writing.
8.2 SUPPORT SERVICES. Subject to the terms of this
Agreement, CTS will offer software and hardware support services for each
System, pursuant to the terms set forth in the Support Services Agreement.
Customer will select support for each System as set forth in the Support
Services Agreement. Such selection will be made as part of the applicable
Market Purchase Agreement for such System.
8.3 SOURCE CODE. CTS will deposit into escrow and maintain
throughout the term of the License one (1) copy of the source code for the
CTS-owned Licensed Programs (I.E., only Licensed Programs to which CTS has
source code rights) in Seattle, Washington, pursuant to CTS's standard form
Source Code Escrow Agreement among CTS, Customer, and an escrow holder
approved by CTS and Customer.
8.4 ROAMING FRAUD PREVENTION SERVICES. Subject to the terms
of this Agreement, CTS will offer services to Customer for the real-time
prevention of cellular roaming cloning fraud, pursuant to the terms set forth
in the Roaming Service Agreement.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 11
8.5 [*]
8.5.1 [*]
8.5.2 [*]
8.5.3 [*]
8.6 [*]
9. COMPENSATION.
9.1 FEES. In consideration for the rights, warranties, and
covenants provided by CTS hereunder, Customer hereby agrees to pay the Fees
specified in the attached SCHEDULE A when due as set forth in such Schedule.
9.2 STANDARD TERMS.
9.2.1 In addition to the Fees and other charges required
to be paid by Customer to CTS hereunder, Customer shall pay (or, at CTS's
election, reimburse CTS) for all federal, state, and local taxes and
withholding requirements in connection with the transactions contemplated by
this Agreement and each Market Purchase Agreement (excluding taxes based on
CTS's net income or its authority to do business within a given state). Such
taxes specifically include, without limitation: (i) excise, sales, use and
royalty taxes, withholding taxes and related requirements, value-added taxes,
all similar taxes and charges now in effect or enacted in the future; and
(ii) all interest and penalties which may result from the failure to pay any
of such taxes or charges. If CTS receives any notice of deficiency with
respect to any such taxes or charges, CTS will promptly deliver notice
thereof to Customer so that Customer may have a reasonable opportunity to
contest such tax and any related interest and penalties.
9.2.2 Except as otherwise expressly set forth in this
Agreement or any Schedule hereto: (i) CTS will invoice Customer for amounts
to be paid hereunder, and Customer will pay such invoice [*] after receipt of
the applicable invoice; (ii) Customer shall not be entitled to the return or
reimbursement of any compensation paid to CTS pursuant to this Agreement; and
(iii) all Fees and other charges hereunder shall be paid to CTS in
immediately available funds in United States Dollars.
9.2.3 If Customer fails to pay any sum when due and
payable, Customer shall pay interest at a rate of one and one-half percent
(1.5%) per month, accruing from the due date of such payment until paid, or
the maximum rate permitted by applicable law if lower. If CTS is entitled to
the sums sought to be collected, it shall also be entitled to receive all
costs expended by CTS in collecting those sums, including without limitation
reasonable attorneys' fees.
10. PROPRIETARY RIGHTS.
10.1 INTELLECTUAL PROPERTY RIGHTS.
10.1.1 The License shall not transfer any title to or
ownership in the Licensed Programs or Documentation, or any Intellectual
Property Rights in connection with the Licensed Programs and/or
Documentation, from CTS to Customer. Accordingly, subject only to the
License, all right, title, and interest in and to the Licensed Programs and
Documentation, and all Intellectual Property Rights in connection with the
Licensed Programs and/or Documentation, are and
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 12
shall at all times remain the exclusive property of CTS or its licensor(s).
CTS may use, sell, assign, transfer and license rights relating to the
Licensed Programs and/or Documentation to any Third Party for any purpose
free from any claim of Customer.
10.1.2 CTS and Customer each own certain trade names,
logos, trademarks, and service marks used in identifying and marketing their
respective technology, products, and services (collectively, "Trademarks").
Each party recognizes and consents for all purposes that all Trademarks of
the other party, whether or not registered, constitute the exclusive property
of such other party and will not be used except as approved by such other
party in advance and in writing, nor shall either party use any confusingly
similar Trademarks of the other party. Nothing contained in this Agreement
shall be construed as conferring any additional rights upon either party to
use in advertising, publicity, or other promotional activities any Trademark
of the other party.
10.2 CONFIDENTIAL INFORMATION. The parties acknowledge that
each party may disclose additional Confidential Information to the other
party or its representatives in furtherance of the transactions contemplated
by this Agreement. Therefore, notwithstanding anything to the contrary, the
Nondisclosure Agreement is hereby amended such that all Confidential
Information of each party disclosed to the other party or any of its
representatives at any time during the term of this Agreement shall be
considered Confidential Information of the disclosing party and shall be
subject to the operative provisions of the Nondisclosure Agreement,
regardless of the stated term identified in the Nondisclosure Agreement.
Each party hereby agrees to ensure that each of its representatives who
receives Confidential Information of the other party complies with the terms
of the Nondisclosure Agreement, as amended hereby, to the same extent as if
such representative had executed the Nondisclosure Agreement, as amended.
All Confidential Information of each party is and shall at all times remain
the exclusive property of each party. For purposes of this Subsection,
"representatives" means the officers, directors, employees, agents, and
affiliates of a party.
11. WARRANTIES.
11.1 INTELLECTUAL PROPERTY RIGHTS. CTS hereby warrants to
Customer that, subject to the provisions of Subsection 12.1.3, below, each
System furnished by CTS hereunder, if used by Customer in accordance with the
terms of this Agreement, is free of any valid claim by a Third Party that the
System infringes an existing United States Intellectual Property Right of
such Third Party. Customer's exclusive remedy for breach of the warranty set
forth in this Subsection 11.1 is set forth in Subsection 12.1, below.
11.2 SOFTWARE PERFORMANCE. For each System, CTS hereby
warrants to Customer that the Licensed Programs (excluding the Third-Party
Software), when used in conjunction with the Hardware necessary for operation
of such System and with Customer's cellular network operating in a normal
manner, and when all relevant Infrastructure and Environmental Requirements
are satisfied, will materially perform in accordance with their
Specifications for so long as Customer continuously purchases for such System
the basic support services and software subscription services described in
the Support Services Agreement. Customer's exclusive remedy for breach of
such warranty shall be correction by CTS, at no additional charge to
Customer, of any errors or malfunctions in such Licensed Programs found not
to be in compliance with such warranty, in accordance with the terms of the
Support Services Agreement; PROVIDED, HOWEVER, that CTS shall have no
obligation to make such corrections if Customer is in breach or default under
this Agreement and is notified, in writing, of such breach or default, or if
Customer fails to notify CTS in writing within a reasonable time of discovery
of such errors or malfunctions. If a correction of an error or malfunction
is commercially impractical, CTS may provide Customer with a commercially
reasonable circumvention of such error or malfunction. For
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 13
Third-Party Software supplied by CTS, CTS will pass through to Customer the
warranties that CTS receives from its vendor for such Third-Party Software,
to the extent that such vendor will honor such warranties.
11.3 HARDWARE PERFORMANCE. For each System, CTS hereby
warrants to Customer that the CTS-proprietary Hardware purchased from CTS for
installation in Cell Sites, when used in conjunction with the Licensed
Programs necessary for operation of such System and with Customer's cellular
network operating in a normal manner, and when all relevant Infrastructure
and Environmental Requirements are satisfied, will materially perform in
accordance with their Specifications for [*] from the date of acceptance of
such Hardware by Customer. Customer's exclusive remedy for breach of such
warranty shall be either repair or replacement by CTS, at its expense and in
its discretion, of any of such Hardware found not to be in compliance with
such warranty, in accordance with the terms of the Support Services
Agreement; PROVIDED, HOWEVER, that CTS shall have no obligation to repair or
replace such Hardware if Customer is in breach or default under this
Agreement or if Customer fails to promptly notify CTS in writing upon
discovery of such errors or malfunctions. For all other Hardware components
supplied by CTS, CTS will pass through to Customer the warranties that CTS
receives from its vendor for such Hardware components, to the extent that
such vendor will honor such warranties.
11.4 CALENDAR-RELATED DATE PROCESSING.
11.4.1 For purposes of this Subsection: (i)
"Calendar-Related" means date values based on the Gregorian calendar, as
defined in Encyclopedia Britannica, 15th edition, 1982, page 602, and to all
uses in any manner of those date values, including, without limitation,
manipulations, calculations, conversions, comparisons, and presentations;
(ii) "Date Data" means any Calendar-Related date values in the inclusive
range January 1, 1985 through December 31, 2035, which the CTS-proprietary
Licensed Programs use in any manner; and (iii) "System Date" means any
Calendar-Related date values in the inclusive range January 1, 1985 through
December 31, 2035 (including the natural transition between such values)
which the CTS-proprietary Licensed Programs shall be able to use as the
current date while operating.
11.4.2 CTS warrants that the CTS-proprietary Licensed
Programs will not malfunction, will not cease to function, will not generate
incorrect data, and will not produce incorrect results due to the processing
by such Licensed Programs of Calendar-Related data, Date Data, or any System
Date. CTS further warrants that, in connection with providing
Calendar-Related data to and accepting Calendar-Related data from other
automated, computerized, and/or software systems and users via user
interfaces, electronic interfaces, and data storage, the CTS-proprietary
Licensed Programs represent date without ambiguity as to century. In the
event of a breach of this warranty, CTS agrees to promptly (but in no case
later than 90 days of Customer's written notification to CTS of any failure
of the CTS-proprietary Licensed Programs to correctly perform as required by
this Subsection) remedy such breach at no additional charge to Customer by:
(i) correcting the version of such Licensed Programs currently used by
Customer so as to make them capable of properly performing as required by
this Subsection; or (ii) providing replacement software for the affected
Licensed Programs which is equivalent in function to such Licensed Programs
and which properly performs as required by this Subsection.
11.5 NO WARRANTIES OTHER THAN EXPRESS WRITTEN. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION 11, CTS MAKES NO REPRESENTATIONS,
WARRANTIES, OR GUARANTIES OF ANY KIND (INCLUDING WITHOUT LIMITATION
PERFORMANCE WARRANTIES), EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH
RESPECT TO THE
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 14
SYSTEM, HARDWARE, LICENSED PROGRAMS, DOCUMENTATION, OR ANY OTHER ITEMS OR
SERVICES COVERED BY OR FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A
PARTICULAR PURPOSE, OR (III) ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING, OR USAGE OF TRADE.
12. INDEMNIFICATION.
12.1 SYSTEM INFRINGEMENT.
12.1.1 CTS will defend, at its sole expense, any Third
Party claim brought against Customer based on an infringement which, if
proven, would result in a breach of the warranty set forth in Subsection
11.1, above; PROVIDED, that: (i) Customer promptly delivers written notice
of such claim to CTS, together with copies of all related court documents
involving such claim; and (ii) Customer provides CTS with full and complete
information and reasonable assistance for the defense of such claim as
reasonably requested by CTS. CTS agrees to reimburse Customer for reasonable
out-of-pocket expenses incurred by Customer in providing such CTS-requested
assistance. In addition, subject to the terms of this Agreement, CTS will
indemnify and hold harmless Customer from and against any and all damages and
costs awarded by final judgment against Customer as a result of such claim,
or, if any compromise or settlement is made with respect to such claim, CTS
will pay all amounts agreed to by CTS in settlement of the claim. CTS shall
have full and complete authority to defend and settle such claim.
12.1.2 If, in any proceeding involving a Third Party
claim described in Subsection 12.1.1, above, a System is held to constitute
an infringement of a Third Party's United States Intellectual Property Right
and use of such System is enjoined, or if in CTS's opinion any such
infringement is likely to occur, CTS, at its option and expense, may either:
(i) obtain the right for Customer to continue use of the System by license,
release from claim of infringement, or by other appropriate means; (ii)
modify the System to make it non-infringing; (iii) replace the System with a
non-infringing system of like functionality; or (iv) if election of either of
the above clauses (i), (ii) or (iii) are impractical in CTS's reasonable
judgment, after using reasonable efforts for a reasonable period of time
under the circumstances, CTS may terminate this Agreement and the License
granted herein with respect to such System by providing Customer with written
notice of such termination. If, pursuant to clause (iv) above, CTS
terminates this Agreement and the License with respect to a System, then:
(a) Customer shall, at CTS's request, either promptly return the System to
CTS or destroy the same; and (b) Customer as its exclusive remedy shall be
entitled to a refund equal to the License Fees and Hardware Fees described in
SCHEDULE A which specifically pertain to such System and which Customer
actually paid to CTS, which refund CTS may reduce by a reasonable sum for
use, depreciation, and amortization.
12.1.3 Notwithstanding anything to the contrary, CTS
shall have no liability under this Agreement for any claim which: (i)
pertains to a System which has been altered or modified without CTS's prior
written approval, unless the use of an unaltered or unmodified version of the
System is shown to constitute the infringement; (ii) use of the System in
combination or conjunction with any item not furnished by CTS, unless the use
of the System is shown to constitute the infringement when not used in
combination or conjunction with the item not furnished by CTS; or (iii)
identifies any Third-Party Software or Hardware (other than CTS-proprietary
Hardware purchased from CTS for installation in Cell Sites) as forming the
basis of such infringement.
12.2 OTHER INDEMNIFICATION.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 15
12.2.1 BY CUSTOMER. Customer acknowledges that CTS has
no control over the business activities of Customer, its cellular networks or
other systems, the quality of telecommunications transmissions, or the
content of the data transmitted. Accordingly, Customer will defend, at its
sole expense, any and all Third Party claims brought against CTS or any of
its officers, directors, employees, agents, successors or assigns arising
from the operation of the cellular networks or other business activities of
Customer, except to the extent that any Third Party claim is based on: (i)
the subject matter described in Subsection 12.1, above; or (ii) Customer's
use of the items furnished by CTS hereunder, so long as such use is in
accordance with the terms of this Agreement and the Support Services
Agreement. In addition, subject to the terms of this Agreement, Customer
will indemnify and hold harmless CTS and its officers, directors, employees,
agents, successors and assigns from and against any and all damages and costs
awarded by final judgment against any of such indemnified parties as a result
of such claim, or, if any compromise or settlement is made with respect to
such claim, Customer will pay all amounts agreed to by Customer in settlement
of the claim. Customer shall have full and complete authority to defend and
settle such claim.
12.2.2 BY CTS. CTS acknowledges that Customer has no
control over the business activities of CTS. Accordingly, CTS will defend, at
its sole expense, any and all Third Party claims brought against Customer or
any of its officers, directors, employees, agents, successors or assigns
arising from the operation of the business activities of CTS, except to the
extent that any Third Party claim is based on the subject matter described in
Subsection 12.2.1, above, or any other provision of this Agreement pursuant
to which Customer is obligated to defend and indemnify CTS or any of its
officers, directors, employees, agents, successors or assigns. In addition,
subject to the terms of this Agreement, CTS will indemnify and hold harmless
Customer and its officers, directors, employees, agents, successors and
assigns from and against any and all damages and costs awarded by final
judgment against any of such indemnified parties as a result of such claim,
or, if any compromise or settlement is made with respect to such claim, CTS
will pay all amounts agreed to by CTS in settlement of the claim. CTS shall
have full and complete authority to defend and settle such claim.
12.2.3 NOTICE AND COOPERATION. With respect to any
claim described in this Subsection 12.2, the party seeking indemnification
under this Subsection 12.2 (the "Indemnified Party") shall provide the party
required to provide indemnification under this Subsection 12.2 (the
"Indemnifying Party") with prompt written notice of such claim brought
against the Indemnified Party, together with copies of all related court
documents involving such claim. The Indemnified Party's failure to provide
timely notice to the Indemnifying Party of any such claim shall not relieve
the Indemnifying Party from any liability under this Subsection 12.2 with
respect to such claim, to the extent that the Indemnifying Party is not
prejudiced by such failure. The Indemnifying Party shall keep the
Indemnified Party advised of the status or any such claim and of its defense
and/or negotiation efforts. The Indemnified Party shall provide the
Indemnifying Party with such information and reasonable assistance for the
defense of such claim as is reasonably requested by the Indemnifying Party.
The Indemnifying Party agrees to reimburse the Indemnified Party for
reasonable out-of-pocket expenses incurred by the Indemnified Party in
providing such assistance requested by the Indemnifying Party.
13. PROSECUTION OF INFRINGEMENT CLAIMS. Notwithstanding anything
to the contrary, Customer shall promptly notify CTS in writing of any facts
of which Customer is aware which might constitute an infringement by any
Third Party of any of CTS's Intellectual Property Rights. CTS shall have the
exclusive right to take all actions, control all litigation or other
proceedings, and negotiate and enter into all settlements with respect to any
such infringement, as CTS deems necessary or appropriate to protect CTS's
Intellectual Property Rights, except as CTS and Customer may otherwise agree
to in writing. Customer agrees to provide to CTS, at CTS's expense, full and
complete information and assistance in connection with the prosecution of
such infringement as reasonably requested by CTS. Any
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 16
recovery of damages or attorneys' fees in connection with any such action, or
in settlement of any such action, will belong entirely to CTS. CTS will have
no obligation to institute suit against any particular person or entity for
infringement of any Intellectual Property Rights of CTS.
14. TERM AND TERMINATION.
14.1 TERM. The term of this Agreement commences on the date
of this Agreement and will continue thereafter for an initial term of two (2)
years. This Agreement may be extended for a mutually agreeable renewal term,
provided that Customer and CTS expressly agree to such extension in writing.
All terms and conditions hereof shall remain in effect during any renewal
term, except as the parties otherwise expressly agree to in writing.
Notwithstanding the above, this Agreement shall terminate upon the occurrence
of any of the events described in the termination provisions set forth below.
14.2 TERMINATION.
14.2.1 MATERIAL BREACH AFTER NOTICE. Except as
otherwise set forth in this Agreement, upon material breach or default under
this Agreement by any party (the "breaching party"), if the other party
("non-breaching party") gives written notice of such breach or default and
the same is not cured within thirty (30) days after delivery of such notice,
then, without limitation of any other remedy available hereunder, the
non-breaching party may terminate this Agreement by delivery of a notice of
termination at any time thereafter before such breach or default has been
cured; PROVIDED, that for any breach or default (other than a payment default
or a default under Subsections 2.2 or 10.2) that is not reasonably
susceptible of cure within thirty (30) days, the breaching party shall have
such additional time, up to ninety (90) additional days, as is reasonably
necessary to cure the default, so long as such party continuously and
diligently pursues such cure. The parties agree that the failure to make
payments of Fees or other charges when due hereunder shall constitute a
"material breach" of this Agreement.
14.2.2 IMMEDIATE TERMINATION. Notwithstanding anything
to the contrary, this Agreement and the License may be immediately terminated
upon written notice: (i) at the option of CTS in the event that Customer
violates any of the provisions of Subsection 2.2 in any way without the prior
written consent of CTS, and Customer fails to cure such violation within (3)
days after CTS's delivery of notice of breach to Customer; or (ii) at the
option of either party if the other party materially violates the
Nondisclosure Agreement or any of the provisions of Subsection 10.2, and such
other party fails to cure such violation in accordance with any applicable
cure periods set forth in the Nondisclosure Agreement.
14.2.3 DISCRETIONARY TERMINATION. Either party may, in
its discretion, terminate this Agreement and the License at any time and for
any reason by giving the other party at least sixty (60) days prior written
notice of termination.
14.3 EFFECT OF EXPIRATION OR TERMINATION.
14.3.1 Following the expiration or termination of this
Agreement, Customer shall have [*] as provided under [*] with respect to the
[*] as of the expiration or termination of this Agreement, [*] any of the
following: (i) if this Agreement is terminated pursuant to Subsections
14.2.1 or 14.2.2 due to a breach or default by Customer, [*] upon termination
of this Agreement; or (ii) if this Agreement expires, is terminated due to
the events described in Subsection 14.2.3, or is terminated pursuant to
Subsection 14.2.1 due to a breach or default by CTS, [*] breach or default by
Customer under any of the survival terms described in Subsection 14.4, and
the expiration of any applicable cure period with respect to such breach or
default.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 17
14.3.2 Upon the expiration or termination of this
Agreement, Customer shall immediately cease use of the Confidential
Information of CTS (excluding [*] in Customer's possession as of such
expiration or termination, which Customer [*]pursuant to Subsection 14.3.1,
above, for the sole purpose of [*]) and shall, at CTS's election, either:
(i) return to CTS the original and all copies of the same, in whole or in
part, in any form, including partial copies and modifications, and any
related materials received from CTS, or (ii) furnish to CTS a certified
executed document stating that the same has been destroyed. Upon the
termination of the License, Customer shall immediately return or destroy all
copies of Licensed Programs and Documentation retained for use pursuant to
Subsection 14.3.1, above, in accordance with the procedures set forth in this
Subsection.
14.3.3 Upon the expiration or termination of this
Agreement, CTS shall immediately cease use of the Confidential Information of
Customer (except as the parties otherwise expressly agree to in writing) and
shall, at Customer's election, either: (i) return to Customer the original
and all copies of the same, in whole or in part, in any form, including
partial copies and modifications, and any related materials received from
Customer, or (ii) furnish to Customer a certified executed document stating
that the same has been destroyed.
14.3.4 For all accrued and unpaid Fees and other charges
hereunder not invoiced prior to the termination of this Agreement, CTS shall
be entitled to invoice Customer for such charges after such termination and
Customer shall pay such charges within thirty (30) days after receipt of the
applicable invoice.
14.4 SURVIVAL TERMS. Upon termination of this Agreement, all
obligations of the parties hereunder shall cease, except those obligations
described in Sections 2.2, 10, 12, 13, 14, 15, and 16, which provisions shall
survive the termination of this Agreement. Termination of this Agreement
shall not be construed to waive or release any claim which a party is
entitled to assert at the time of such termination, and the applicable
provisions of this Agreement shall continue to apply to such claim until it
is resolved.
15. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, CTS SHALL HAVE NO LIABILITY FOR ANY LOSS TO CUSTOMER, ANY AFFILIATE
OF CUSTOMER, OR ANY THIRD PARTY EXCEPT FOR: (I) PHYSICAL LOSS OR DAMAGE TO
AN INDIVIDUAL OR TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY ARISING FROM
THE NEGLIGENT OR WILLFUL MISCONDUCT OF CTS; OR (II) LIABILITY OF CTS
EXPRESSLY PROVIDED FOR IN SECTION 12.1 HEREOF; OR (III) LIABILITY OF CTS FOR
CLAIMS ARISING AS A RESULT OF OR RELATED TO PERFORMANCE OF A SYSTEM, WHICH
LIABILITY UNDER THIS CLAUSE III SHALL BE LIMITED TO GENERAL MONEY DAMAGES AND
SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO [*], WHERE SUCH AMOUNT EQUALS [*]
THIS AGREEMENT AND [*] THEREAFTER. HOWEVER, IN NO EVENT SHALL CTS BE LIABLE
FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFIT, BUSINESS, REVENUE,
OR GOODWILL, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING
WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF CTS
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
16. MISCELLANEOUS.
16.1 NOTICES. All notices hereunder by either party shall be
given by personal delivery (including by a reputable courier service) or by
sending such notice by United States certified mail return receipt requested,
postage prepaid, and addressed as set forth on the signature page of this
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 18
Agreement. Such notices shall be deemed to have been given and delivered
upon receipt and the date of receipt identified by the United States Postal
Service on any return receipt card shall be conclusive evidence of receipt.
Notices may also be transmitted by facsimile or telecopy machine, and such
notices shall be deemed received when transmitted if: (i) a document is
electronically generated by the transmitting machine confirming that the
transmission was received; and (ii) the party transmitting the notice
deposits such notice the same day with a reputable courier service providing
delivery not later than the following business day. Any party, by written
notice to the other as above described, may alter the address for receipt by
it of written notices hereunder.
16.2 INDEPENDENT CONTRACTORS. It is expressly agreed that
CTS and Customer are acting hereunder as independent contractors and under no
circumstances shall any of the employees of one party be deemed the employees
of the other party for any purpose. Nothing in this Agreement shall be
deemed to constitute, create, or in any way be interpreted as a partnership,
joint venture, franchise, or other formal business organization involving CTS
and Customer, nor shall anything in this Agreement be deemed to constitute
one party the employee or agent of the other party. Neither CTS nor Customer
shall have any authority under this Agreement to bind, obligate, or otherwise
commit the other party to any agreement or transaction for any purpose
whatsoever.
16.3 EXCUSED PERFORMANCE. Except for the failure to pay Fees
or other charges when due hereunder, neither party shall be liable for, or be
considered to be in breach or default under this Agreement as a result of,
any delay or failure to perform as required hereunder which is due to any
cause or condition beyond such party's reasonable control.
16.4 PUBLICITY. Neither party shall disclose to any Third
Party the terms of this Agreement or the existence of this Agreement without
the express written consent of the other party; PROVIDED, HOWEVER, that
either party may make public announcements concerning the terms of this
Agreement or the existence of this Agreement without such express written
consent of the other party if: (i) the announcement is necessary for such
party to comply with the requirements of the United States Securities and
Exchange Commission, any other governmental agency, any court of competent
jurisdiction, or applicable law or regulation; or (ii) the subject matter of
such announcement had been previously disclosed in accordance with the
requirements of this Subsection.
16.5 ASSIGNMENT. Neither party shall assign any of its rights
or obligations hereunder (in whole or in part) without the express written
consent of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, each party may, upon notice to the other
party, assign this Agreement and all of its rights and obligations hereunder
(in whole but not in part) to any of its affiliates capable of performing its
obligations hereunder or to any entity which acquires all or substantially
all of such party's assets or stock pursuant to any merger, stock or asset
transfer, consolidation, or other business combination. Any attempt by any
party to assign or transfer any of its rights or obligations under this
Agreement in violation of this Subsection shall be considered void and shall
be deemed a material breach of this Agreement. Subject to the foregoing,
this Agreement will be fully binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
16.6 SUBCONTRACTORS. Notwithstanding anything to the
contrary, CTS may in its discretion subcontract the performance of any of its
obligations hereunder or under any Market Purchase Agreement to any Third
Party; PROVIDED, that CTS's subcontractors shall perform to the same
standards imposed upon CTS hereunder and CTS shall be liable for the conduct
of its subcontractors to the same extent as CTS's own liability under this
Agreement. Upon request, CTS will provide Customer with a list of such
subcontractors.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 19
16.7 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement. In the event that any provision of
this Agreement is deemed invalid or unenforceable by any court of competent
jurisdiction, such provision shall be deemed to be modified to the extent
necessary for the provision to be legally enforceable to the fullest extent
permitted by applicable law. Any court of competent jurisdiction may enforce
or modify any provision of this Agreement in order that the provision will be
enforced by the court to the fullest extent permitted by applicable law.
16.8 NO WAIVER; CUMULATIVE REMEDIES. No consent or waiver,
express or implied, by any party to or of any breach or default by the other
in the performance by the other of its obligations hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach or default
in the performance by such other party of the same or any other obligations
of such party hereunder. Except where contrary to the express terms herein,
the rights and remedies herein are cumulative to those that exist at law or
in equity and there shall be no implied waiver of such rights and remedies.
16.9 GOVERNING LAW. This Agreement shall be governed by,
subject to, and interpreted in accordance with the laws of the state of
Washington, without regard to conflict of laws principles. Each party hereby
submits to the non-exclusive jurisdiction of the courts of competent
jurisdiction located in King County, Washington, with respect to any claim or
proceeding relating to this Agreement.
16.10 INJUNCTIVE RELIEF. The parties recognize and agree
that money damages are an inadequate remedy for breach of Sections 2.2 and/or
10, above, and further recognize that such breach would result in irreparable
harm to the party against whom such breach is committed. Therefore, in the
event of a breach or threatened breach of any such provision, the
non-breaching party shall be entitled to injunctive relief (without the
posting of any bond and without proof of actual damages) in order to prevent
or to restrain any such breach or threatened breach by the party in breach or
by any other persons directly or indirectly acting for, on behalf of, or with
the party in breach, and that neither the party in breach nor such other
persons will oppose the stipulations set forth in this Subsection or the
procedures for granting of such relief. Injunctive relief pursuant to this
Subsection shall be in addition to all remedies available at law or in equity
to a party arising from a breach of the provisions described above by the
other party.
16.11 LITIGATION EXPENSES. In any controversy, claim or
dispute arising out of, or relating to, this Agreement or the method and
manner of performance thereof or the breach thereof, the prevailing party
shall be entitled to recover from the other party, in addition to any other
relief, all of its reasonable costs and expenses, including without
limitation reasonable attorneys' fees, incurred in connection with such
controversy, claim, or dispute. If neither party wholly prevails, the party
that substantially prevails shall be awarded all of its reasonable costs and
expenses, including without limitation reasonable attorneys' fees, incurred
in connection with such controversy, claim, or dispute.
16.12 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the
Support Services Agreement, the Nondisclosure Agreement, the Source Code
Escrow Agreement, the Roaming Service Agreement, each Market Purchase
Agreement issued hereunder, and all Schedules to the foregoing agreements,
contain the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersede all prior agreements,
negotiations, representations, and proposals, written and oral, relating to
the subject matter. All Schedules and all other documents, when agreed to by
the parties and attached hereto, are integral to and incorporated herein by
this reference. This Agreement and the Schedules attached hereto shall not
be deemed or construed to be modified, amended,
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 20
or waived, in whole or in part, except by written agreement duly executed by
the parties to this Agreement.
16.13 COUNTERPARTS. This Agreement may be signed in one or
more counterparts, each of which shall be considered an original and which
shall, taken together, constitute this Agreement.
EXECUTED as of the date set forth above.
CUSTOMER: CTS:
--------- ----
GTE MOBILNET SERVICE CORP. CELLULAR TECHNICAL SERVICES COMPANY, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- -----------------------------------------
Print Name Print Name
Vice President - Technology President & Chief Operating Officer
---------------------------------- -----------------------------------------
Title Title
Customer's Address for Notices: CTS's Address for Notices:
------------------------------- --------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, Mail Code NMCAO ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Legal Department
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇: Legal Department Mail Code 0LGL
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 21
INDEX OF SCHEDULES
TO
MASTER PURCHASE AND LICENSE AGREEMENT
SCHEDULE DESCRIPTION PAGE NO.
-------- ----------- --------
Schedule A Fees and Payment Terms 24
Schedule B CTS-Certified Hardware 29
Schedule C Market Areas 30
Schedule D Specifications 31
Schedule E Acceptance Test Plan 35
Schedule F Training Classes 43
Schedule G Technical Managers 46
Schedule H Nondisclosure Agreement 47
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 22
SCHEDULE A
TO
MASTER PURCHASE AND LICENSE AGREEMENT
FEES AND PAYMENT TERMS
Customer shall pay the following Fees and charges in connection with the
Master Purchase and License Agreement between CTS and Customer (the
"Agreement"), together with any other Fees and charges specified in the
Agreement. All undefined capitalized terms used in this Schedule shall have
the meanings ascribed to such terms as set forth in the Agreement.
1. LICENSE FEES.
1.1 INITIAL LICENSED PROGRAMS. In consideration for the
License, Customer shall pay the following Fees to CTS for the following
Licensed Programs in accordance with the terms of the Agreement and this
Schedule:
LICENSED PROGRAMS(1) LICENSE FEES PER CELL SITE
----------------- --------------------------
[*] [*] per Cell Site
[*] [*] PER CELL SITE
Total:[*] per Cell Site
1.2 ADDITIONAL LICENSED PROGRAMS. For all additional
software, data tables, and programs which CTS and Customer agree in writing
to add to a System as Licensed Programs (other than the Licensed Programs
described in Subsection 1.1, above, and Section 3, below), Customer shall pay
such Fees to CTS as CTS and Customer mutually agree to in writing.
1.3 NEW RELEASES AND MAINTENANCE RELEASES. For all New
Releases and Maintenance Releases of the Licensed Programs described in
Sections 1.1, 1.2 and 3 of this Schedule, Customer shall pay such Fees to CTS
as specified in Subsection 2.3 of the Agreement.
2. HARDWARE FEES.
2.1 CELL SITE SYSTEM HARDWARE PURCHASED FROM CTS. In
consideration for the Hardware components purchased from CTS for installation
in Cell Sites, Customer shall pay CTS the following Fees in accordance with
the terms of the Agreement and this Schedule:
------------------------
(1) Fees include pricing for the License to use Licensed Programs and for the
software performance warranty set forth in Subsection 11.2 of the Agreement.
Fees exclude pricing for license to use interdiction software, which is
specified in Section 3, below.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 23
HARDWARE DESCRIPTION(2) HARDWARE FEES
-------------------- -------------
[*] [*] per Cell Site
2.2 ADDITIONAL HARDWARE PURCHASED DIRECTLY FROM CTS. Except
as otherwise provided in Sections 2.1 and 3 of this Schedule, Customer shall
pay CTS an amount equal to CTS's then-current list price for all Hardware
purchased from CTS.
2.3 HARDWARE PURCHASED DIRECTLY FROM THIRD PARTIES. For all
Hardware purchased from Third Parties for a System (I.E., all Hardware other
than the Hardware purchased from CTS described in Sections 2.1, 2.2, and 3 of
this Schedule), Customer shall pay CTS an integration Fee equal [*] of the
Third-Party supplier's list price for such Hardware. Notwithstanding the
above, Customer shall have no obligation to pay such integration Fee for
CISCO routers purchased by Customer from a Third Party, so long as Customer
performs all necessary integration work for such routers in accordance with
CTS's specifications for such work.
3. FEES FOR INTERDICTION FUNCTIONALITY. In addition to the Fees
set forth in Sections 1 and 2, above, and in consideration for the license to
use certain software, and the sale of certain hardware, necessary to perform
the interdiction functionality for a given System, Customer shall pay the
Fees set forth below which pertain to the interdiction method utilized for
such System:
INTERDICTION METHOD(3) INTERDICTION FEES
[*] [*] per Interdiction Module
[*] [*] per switch [*]
[*](4) [*] per switch [*]
4. DEPLOYMENT FEES.
4.1 DEPLOYMENT MANAGEMENT FEES. For the deployment of a
System within a Licensed Market, Customer shall pay CTS a one-time deployment
management Fee equal [*], to be paid upon execution of the initial Market
Purchase Agreement for such System. In consideration for such deployment
management Fee, CTS will provide the following for the initial configuration
of such System: (i) consulting services for planning the configuration for
such initial System and preparing an itemized list of all Hardware for such
initial System; (ii) availability of one primary and one back up technical
manager for such initial System, as specified in Subsection 5.2 of the
Agreement; (iii) installation services for the installation of Hardware at
each Regional Processor Complex for such initial
------------------------
(2) Fees include pricing for purchase of the Cell Site System Hardware and for
the hardware performance warranty set forth in Subsection 11.3 of the Agreement
with respect to such Cell Site System Hardware. Fees exclude pricing for
purchase of interdiction hardware, which is specified in Section 3, below, and
also excludes pricing for cabling and other peripherals required for a given
System.
(3) Fees include pricing for the license to use software, and the sale of
hardware, which directly pertain to the interdiction method utilized for a given
System. Fees exclude pricing for cabling and other peripherals required for the
interdiction method utilized. For any other interdiction method utilized for a
given System, Customer shall pay such Fees to CTS as the parties mutually agree
to in writing.
(4) [*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 24
System, as specified in Subsection 5.2 of the Agreement; (iv) one session of
PreTect-TM- User Training and Cell Site System Overview Training, at no
additional charge, as specified in Subsection 5.1, below[*]. Any additional
deployment management services by CTS will be pursuant to such terms and
subject to such Fees as CTS and Customer mutually agree to in writing.
4.2 CELL SITE SYSTEM INSTALLATION FEES. At Customer's
request, CTS will install the initial configuration of Components at a Cell
Site in accordance with the terms of the Agreement. In consideration for
such installation services, Customer shall pay CTS an amount equal to [*] per
Cell Site installation, [*].
5. TRAINING FEES.
5.1 PRETECT-TM- USER TRAINING/CELL SITE SYSTEM OVERVIEW
TRAINING. As partial consideration for the deployment management Fees
described in Subsection 4.1, above, CTS will conduct one PreTect-TM- User
Training session and one Cell Site System Overview Training session, at no
additional charge, as specified in Subsection 8.1 and SCHEDULE F of the
Agreement. At Customer's request, CTS will conduct one or more additional
PreTect-TM- User/Cell Site System Overview combined training sessions, as
specified in Subsection 8.1 and SCHEDULE F of the Agreement, on a mutually
acceptable schedule. In consideration for such additional training, Customer
shall pay CTS a Fee equal to [*] per combined training session, plus all
expenses incurred by CTS in connection with such training session as
described in Section 9, below.
5.2 INSTALLATION TRAINING. [*], as specified in Subsection
8.1 and SCHEDULE F of the Agreement. At Customer's request, CTS will conduct
one or more additional Cell Site System Installation training sessions as
specified in Subsection 8.1 and SCHEDULE F of the Agreement, on a mutually
acceptable schedule. In consideration for such additional training, Customer
shall pay CTS [*] per training session, plus all expenses incurred by CTS in
connection with such training session as described in Section 9, below.
5.3 MAINTENANCE TRAINING. [*], as specified in Subsection 8.1
and SCHEDULE F of the Agreement. At Customer's request, CTS will conduct one
or more additional Cell Site System Maintenance training sessions for such
System as specified in Subsection 8.1 and SCHEDULE F of the Agreement, on a
mutually acceptable schedule. In consideration for such additional training,
Customer shall pay CTS [*] per training session, plus all expenses incurred
by CTS in connection with such training session as described in Section 9,
below.
5.4 ADDITIONAL TRAINING. Additional training by CTS will be
pursuant to such terms and subject to such Fees as CTS and Customer mutually
agree to in writing.
6. SUPPORT SERVICE FEES. For each System, CTS will offer the
support services set forth in the Support Services Agreement (I.E., basic
support services, Hardware maintenance, System monitoring, and software
subscription services), subject to the fees and other charges set forth in
such Support Service Agreement and the Schedules attached thereto.
7. REAL-TIME PREVENTION OF ROAMING CLONING FRAUD. For each
System, CTS will offer the services set forth in the Roaming Service
Agreement, subject to the fees and other charges set forth in such Roaming
Service Agreement and the Schedules attached thereto.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 25
8. PRETECT-TM- GRAPHICAL USER INTERFACE. CTS and Customer agree
that, for each System, CTS will provide up to [*] PreTect-TM- Graphical User
Interface connections for no additional charge. For each additional
PreTect-TM- Graphical User Interface connection for a System, Customer shall
pay CTS a Fee equal to [*].
9. OTHER FEES. Except as otherwise provided in this Agreement,
Customer agrees to pay CTS for: (i) all travel, lodging, and other
out-of-pocket expenses incurred by CTS in connection with the Agreement; and
(ii) all services performed by CTS, other than those services for which CTS's
compensation is expressly set forth elsewhere in the Agreement or the
Schedules thereto, at the then-current billing rate of the CTS personnel
performing such services, plus all expenses incurred by CTS in connection
with such services (including without limitation all costs of materials,
costs of third-party contractors, and all travel, lodging, and other
out-of-pocket expenses), except as the parties otherwise agree to in writing.
10. PAYMENT TERMS.
10.1 GENERAL.
10.1.1 For each deployment of Components for a System,
Customer shall pay the Fees described in Sections 1.1, 2.1, and 3 above, to
CTS as follows: (i) [*] of the aggregate of such Fees shall be paid to CTS
upon Customer's execution of the applicable Market Purchase Agreement for
such Components (or upon CTS's receipt of the applicable Purchase Order if
such Components are not identified in a Market Purchase Agreement); (ii) [*]
of the aggregate of such Fees shall be paid to CTS upon CTS's delivery of
Components for the deployment to a common carrier for shipment to Customer
(if such deployment involves multiple shipments, then such aggregate amount
shall be paid on a pro rata basis at the time of each shipment); and (iii)
the remaining [*] of the aggregate of such Fees shall be paid to CTS [*], or
(b) [*] from Customer's receipt of such Components, unless any delay in
acceptance testing beyond such [*] is due to the fault of CTS.
10.1.2 For each deployment of Components for a System,
Customer shall pay the Fees described in Subsection 2.2, above, to CTS as
follows: (i) [*] of the aggregate of such Fees shall be paid to CTS upon
Customer's execution of the applicable Market Purchase Agreement for such
Components (or upon CTS's receipt of the applicable Purchase Order if such
Components are not identified in a Market Purchase Agreement); and (ii) the
remaining [*] of the aggregate of such Fees shall be paid to CTS upon CTS's
delivery of such Components to a common carrier for shipment to Customer (if
multiple shipments are made, such aggregate amount shall be paid on a pro
rata basis at the time of each shipment).
10.2 OTHER PAYMENT TERMS. CTS will invoice Customer for
amounts to be paid under this Agreement, and Customer will pay such invoice
within [*] receipt of the applicable invoice.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 26
SCHEDULE B
TO
MASTER PURCHASE AND LICENSE AGREEMENT
CTS-CERTIFIED HARDWARE
This Schedule contains a list of the Hardware certified by CTS for
purchase by Customer from certain Third Parties, approved in advance and in
writing by CTS, as more fully described in Subsection 3.2 of the Master
Purchase and License Agreement between CTS and Customer. All configurations
of such Hardware (including any software bundled with such hardware as
supplied by the hardware manufacturer) used for a given System must be
approved in advance and in writing by CTS.
1. Hewlett-Packard processors and peripheral Hewlett-Packard
equipment. The models used for each System will vary depending on
the Hardware configuration used for such System.
2. CISCO routers and peripheral CISCO equipment. The models used
for each System will vary depending on the Hardware configuration
used for such System.
3. X-terminal workstations (CTS recommends Hewlett-Packard ENVIZEX
X-terminal workstations with a minimum of 8 MB of memory). Memory
requirements for workstations will vary depending on the
configuration used for a given System.
4. Hewlett-Packard LaserJet (IV or above) printer. Printer must
carry baseline memory (memory size dependent on model).
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 27
SCHEDULE C
TO
MASTER PURCHASE AND LICENSE AGREEMENT
MARKET AREAS
This Schedule contains a list of Customer's market areas for purposes of the
Master Purchase and License Agreement between CTS and Customer (the
"Agreement").
[*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 28
SCHEDULE D
TO
MASTER PURCHASE AND LICENSE AGREEMENT
SPECIFICATIONS
This Schedule contains the functional Specifications for a System as
required by the Master Purchase and License Agreement between CTS and
Customer (the "Agreement"). All undefined capitalized terms used in this
Schedule shall have the meanings ascribed to such terms as set forth in the
Agreement. Each overall System is comprised of one or more Regional
Processor Systems and Cell Site Systems.
BLACKBIRD-REGISTERED TRADEMARK- PLATFORM AND PRETECT-TM- APPLICATION
FUNCTIONAL OVERVIEW
Together, the Blackbird-Registered Trademark- Platform and PreTect-TM- form a
home market cloning prevention solution, in which the Blackbird-Registered
Trademark- Platform collects cellular phone data that PreTect-TM- measures
and uses to interdict analog cellular phone cloning attempts in real time.
BLACKBIRD-REGISTERED TRADEMARK- PLATFORM OVERVIEW
The Blackbird-Registered Trademark- Platform is the data collection and
storage platform for CTS's real time cellular fraud prevention applications.
Using hardware and software at the Cell Site System (CSS) and Regional
Processor (RP), the Blackbird-Registered Trademark- Platform collects and
stores the following cellular call data that form a cellular call event
signature, or "fingerprint":
- Radio frequency (RF) transmission characteristics: The subtle
differences between different cellular phones' RF signatures.
- Mobile Identification Number (MIN): The unique phone number assigned
a cellular phone.
- Electronic Serial Number (ESN): The unique number programmed into a
cellular phone during the manufacturing process.
- [*]
- [*]
CTS designed the Blackbird-Registered Trademark- Platform as a platform for
delivery of a modular system of cellular fraud prevention applications. The
Blackbird-Registered Trademark- Platform Application Programming Interface
(API) facilitates seamless integration of current and future CTS products to
meet the changing fraud prevention requirements of its customers.
PRETECT-TM- OVERVIEW
PreTect-TM- is the real time cloning detection and interdiction application
designed to function on the Blackbird-Registered Trademark-Platform.
PreTect-TM- works to prevent cloning fraud.
Over time, PreTect-TM- uses the information collected and stored by the
Blackbird-Registered Trademark- Platform to build a unique fingerprint for
each analog cellular phone. PreTect-TM- also measures each call attempt
transmitted
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 29
to a cell site against this fingerprint. This real time measurement process
allows PreTect-TM- to quickly determine whether the attempt originated from a
cloned analog cellular phone.
Users access PreTect-TM- through a Graphical User Interface on Hewlett
Packard X-terminals or IBM PC-compatible computers running X-terminal
emulation software. Through the graphical user interface, users can
[*]
Through the graphical user interface, users can configure PreTect-TM- to meet
the needs of daily operations on their cellular network:
- [*]
Finally, [*]. This allows customer service and fraud prevention departments
to better utilize the data storage and analysis capabilities of the
Blackbird-Registered Trademark- Platform/PreTect-TM- system:
- [*]
SYSTEM HARDWARE OVERVIEW
The Blackbird-Registered Trademark- Platform/PreTect-TM- system includes the
following hardware systems:
Each regional processor complex consists of one or more processors, routers
and other hardware necessary to store cellular call data and maintain
connectivity between the Cell Site System and regional processor system.
- Regional Processor: Typically a Hewlett Packard 9000 series processor(s)
running the HP-UX operating system.
- Router: Typically a CISCO 7000 series router(s) used to provide TCP/IP
Ethernet connectivity between the regional processor and each cell site.
The Blackbird-Registered Trademark- Platform and PreTect-TM- software work
with the regional processor system to provide real-time call data collection,
storage and reporting. In addition, the Blackbird-Registered Trademark-
Platform's distributed real-time message processing allows distribution of
fingerprint data among multiple regional processor systems in large markets.
The Cell Site System (CSS) consists of the cell site processor, radios and
other equipment necessary to collect cellular call data, communicate with the
regional processor system and shut down, or interdict, cloning attempts. At
least one CSS is required for each cell site that uses the
Blackbird-Registered Trademark- Platform/PreTect-TM- system. A single CSS
will support up to three reverse control channel frequencies.
- Cell Site Processor (CSP): An industry-standard PC housed in an
industrial-grade metal enclosure, with a cellular modem for remote
network troubleshooting.
- Radio: Cellular radios which collect cellular call data directly from
the cell site antenna and transmit that data to the CSP without
interrupting cell site call traffic.
- Interdiction module: Hardware unit that performs interdiction of
cloning attempts upon command from the CSP. The interdiction module
will vary depending on the carrier's infrastructure type.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 30
Blackbird-Registered Trademark- and PreTect-TM- software work with the CSS to
gather home market cellular call characteristics, relay information regarding
those characteristics to the regional processor when necessary, and perform
interdiction of cloning attempts.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 31
BLACKBIRD-REGISTERED TRADEMARK- PLATFORM/PRETECT-TM- PROCESS OVERVIEW
This diagram follows a cellular call attempt through the Blackbird-Registered
Trademark- Platform/PreTect-TM- system:
[GRAPHIC]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 32
SCHEDULE E
TO
MASTER PURCHASE AND LICENSE AGREEMENT
ACCEPTANCE TEST PLAN
Set forth below is the Acceptance Test Plan described in Subsection
1.1 of the Master Purchase and License Agreement between CTS and Customer
(the "Agreement"). For purposes of this Acceptance Test Plan, all references
to "fraud" or "cloning fraud" shall mean analog cellular telephone cloning
fraud within the home market. All undefined terms used herein shall have the
meanings ascribed to such terms in the Agreement.
GOALS
[*]
TEST CONDITIONS
The tests conducted under this plan are subject to satisfaction of the
following conditions at all times during testing:
- Customer is in compliance with the CTS Infrastructure and Environmental
Requirements for the relevant System, and otherwise is in compliance with the
Agreement.
- Customer's cellular network is functioning properly, such that it does not
degrade the performance of the System.
- Customer continuously purchases support services from CTS for the relevant
System under the Support Services Agreement, and otherwise is in compliance
with such agreement.
- The hardware sizing and configuration for the relevant System have been
approved by CTS.
- [*]
ACCEPTANCE TEST TABLE
Specified tests under this plan will run for each "Initial System"(as such
term is defined in Subsection 7.1 of the Agreement) and when certain
significant Components are added to such System. Set forth below is a table
showing the tests conducted under this plan for each event requiring testing:
[*]
ACCEPTANCE TESTS
Customer personnel will conduct all tests under this plan, except as the
parties otherwise agree. In any event, CTS personnel will be entitled to
participate as members of the test team.
A. INSTALLATION VERIFICATION TESTS
A.1 CELL SITE SYSTEM INSTALLATION AND NETWORK CONNECTIVITY VERIFICATION
Goal:
- [*]
Method:
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 33
- [*]
[*]
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ____
A.2 REGIONAL PROCESSOR COMPLEX EQUIPMENT INSTALLATION VERIFICATION
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______ CTS Initial ______ Date ____
A.3 CSS/RPC EQUIPMENT CONFIGURATION VERIFICATION
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
B. GRAPHICAL USER INTERFACE (GUI) TEST
Goal:
- [*]
Method:
- [*]
Deliverables:
- [*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 34
C. CALL EVENT DATA COLLECTION TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
D. REPORTS TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
E. CONTROL GROUP PHONE TEST
E.1 TEST PREPARATIONS
Control Group Phones:
[*]
Additional Test Preparations:
CTS and Customer will prepare the System for testing by performing the
items described below:
- [*]
E.2 FINGERPRINT ESTABLISHMENT
Goal:
- [*.]
Method:
- [*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 35
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
E.3 VALID AND FALSE NEGATIVE CALL TEST
Goals:
- [*]
Method:
- [*]
Deliverables:
- [*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
E.4 COUNTERFEIT CALL TEST
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
F. ADDITIONAL CELL SITE VERIFICATION TEST
[*]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
G. ADDITIONAL REGIONAL PROCESSOR COMPLEX EQUIPMENT TEST
[*]
G.1 NETWORK CONNECTIVITY
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 36
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
G.2 APPLICATION SERVER REPORTING
Goal:
- [*]
Method:
- [*]
Deliverable:
- [*
- *]
Approval: Customer Initial ______ Date ______CTS Initial ______ Date _____
H. ADDITIONAL REGIONAL PROCESSOR COMPLEXES
[*]
I. DURATION OF TESTING
The duration of all testing under this plan shall not exceed [*] and shall be
specified in the applicable Implementation Schedule, as the same may be
modified from time to time by the mutual agreement of the parties.
CERTAIN DEFINITIONS
ACRONYM DESCRIPTION
------- -----------
[*] [*]
[*] [*]
CSS Cell Site System
RPC Regional Processor Complex
GUI Graphical User Interface
MIN Mobile Identification Number
ESN Electronic Serial Number
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 37
SCHEDULE F
TO
MASTER PURCHASE AND LICENSE AGREEMENT
TRAINING CLASSES
This Schedule contains a description of the training classes specified
in the Master Purchase and License Agreement between CTS and Customer (the
"Agreement"). All undefined capitalized terms used in this Schedule shall
have the meanings ascribed to such terms as set forth in the Agreement.
Each of the initial training classes are to be conducted at facilities
provided by Customer, in the market area in which the System is installed.
Where a classroom environment is required Customer will need to include
adequate space for the number of participants, an overhead transparency
projector, and access, within a reasonable distance, to an X-terminal capable
of running the System's graphical user interface. Where a Cell Site
environment is required, Customer will need to provide adequate space such
that the number of participants are able to view, concurrently,
demonstrations of Cell Site Hardware installation or maintenance procedures.
Training sessions are to be held during normal business hours (local time),
up to approximately eight hours per day, on concurrent days.
A. PRETECT-TM- USER TRAINING SESSION
Participant Prerequisite: Previous professional experience within a
cellular carrier's operation identifying and/or resolving cases of cellular
fraud or working with the carrier's customer care organization.
Duration: Approximately four hours, to be conducted in one business day.
Facilities requirements: Classroom, as described above.
Maximum number of participants: Governed by the number of terminals
available with access to the PreTect Graphical User Interface. Recommended
number of participants is 4 persons per terminal.
Timing: To be conducted after installation of Regional Processor and at
least five Cell Site Hardware systems in a market area, and end-to-end
verification of System functionality by CTS.
Course Description: This course is targeted at carrier personnel who
currently work in the carrier's Fraud or Customer Care organizations. This
course shows PreTect-TM- users how to access information and perform tasks
using the PreTect-TM- graphical user interface. This includes an overview of
the functionality, pre-call detection, and interdiction. Additional training
topics include: querying the system by mobile identification number (MIN) and
destination, monitoring fingerprints, and generating on-screen and print
reports.
B. CELL SITE SYSTEM TRAINING SESSION
The Cell Site System training will depend on whether Customer elects to
have CTS perform installation of Cell Site Components or elects to perform
such installation itself, as specified in the Agreement. If Customer elects
to have CTS perform such installation, CTS will provide the Cell Site System
Overview training described below. If Customer elects to perform such
installation itself, CTS will provide the Cell Site System Installation
training described below.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 38
1. Cell Site System Overview
Participant Prerequisite: Demonstrated familiarity with PC-type hardware
systems. Previous experience working in the cell site environment
recommended.
Duration: Approximately four hours of classroom instruction. Observation
of installation of up to three Cell Site hardware systems. Cell site
observation to be conducted according to a mutually-agreed-upon schedule.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted at a mutually agreed upon time.
Course Description: This course is targeted at Customer personnel who
currently work supporting the Customer's cell sites. The training includes
an overview of CSS hardware infrastructure, training in composition and
layout of CTS additions to cell sites, and a basic understanding of network
interfaces and problem solving techniques including the cell site
relationship to the regional processor.
2. Cell Site System Installation
Participant Prerequisite: Demonstrable skills installing and maintaining
PC-type hardware systems. Previous experience working in the cell site
environment recommended. [*]
Duration: Approximately four hours of classroom instruction.
Participation in installation of at least five Cell Site hardware systems,
with the Cell Sites selected including a representative sample of the
possible interfacing requirements (RF connection and networking). Cell site
training to be conducted according to a mutually-agreed-upon schedule.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted after installation of Regional Processor, unless
the parties otherwise agree to in writing.
Course Description: This course is targeted at Customer personnel who
currently work supporting Customer's cell sites. This includes an overview of
CSS hardware infrastructure, proper handling and installation of CSS
components, and a basic understanding of network interfaces and problem
solving techniques.
Course Requirement: This CTS training session is required for all
Customer personnel who will be performing installation of Cell Site System
hardware at Cell Sites, and will suffice as "Train the Trainer" training to
enable Customer to train its own personnel for the installation of Cell Site
System hardware. Upon CTS certification, such Installation Trainers will be
responsible for training Customer personnel in accordance with the
CTS-provided curriculum for Cell Site System Installation training, and for
maintaining Installation Trainer certification in accordance
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 39
with CTS re-certification requirements. CTS will provide such additional
"Train the Trainer" training on such terms and for such training fees as CTS
and Customer mutually agree to in writing.
C. CELL SITE SYSTEM MAINTENANCE TRAINING SESSION
Participant Prerequisite: Cell Site System Installation training, as
described above. In addition, demonstrable skills repairing PC-type hardware
systems. Previous experience working in a cell site environment recommended.
Duration: Approximately four hours of classroom training and eight hours
of on-the-job, participatory training in the cell site environment.
Facilities requirements: Classroom and cell site, as described above.
Maximum number of participants: Governed by cell site environment
restrictions, as described above.
Timing: To be conducted after installation of Regional Processor and at
least five Cell Site Hardware systems in a market area, and end-to-end
verification of System functionality, unless the parties otherwise agree to
in writing.
Course Description: This course is targeted at carrier personnel who
currently perform hardware repairs on cellular network equipment. The course
includes basic trouble-shooting techniques of the CSS environment, proper
handling of CSS hardware, and CSP component replacement.
Course Requirement: This CTS training session is required for all
Customer personnel who will be performing maintenance of Cell Site System
hardware at Cell Sites, and will suffice as "Train the Trainer" training to
enable Customer to train its own personnel for the maintenance of Cell Site
System hardware. Upon CTS certification, such Maintenance Trainers will be
responsible for training Customer personnel in accordance with the
CTS-provided curriculum for Cell Site System Maintenance training, and for
maintaining Maintenance Trainer certification in accordance with CTS
re-certification requirements. CTS will provide such additional "Train the
Trainer" training on such terms and for such training fees as CTS and
Customer mutually agree to in writing.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 40
SCHEDULE G
TO
MASTER PURCHASE AND LICENSE AGREEMENT
TECHNICAL MANAGERS - OVERALL COORDINATION
CTS TECHNICAL MANAGERS:
Primary: [*]
Cellular Technical Services Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[*]
Back Up: [*]
Cellular Technical Services Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[*]
CUSTOMER TECHNICAL MANAGERS:
Primary: [*]
Back Up: [*]
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 41
SCHEDULE H
TO
MASTER PURCHASE AND LICENSE AGREEMENT
NONDISCLOSURE AGREEMENT
Attached to this Schedule is a copy of the Nondisclosure Agreement described
in the Master Purchase and License Agreement, together with all supplements
thereto.
MASTER PURCHASE AND LICENSE AGREEMENT PAGE 42
CONFIDENTIAL DISCLOSURE AGREEMENT
THIS AGREEMENT is effective as of August 29, 1995, by and between
GTE Mobilnet Service Corp., GTE Mobilnet of California Limited Partnership
and GTE Mobilnet of Santa ▇▇▇▇▇▇▇ Limited Partnership (hereinafter
collectively called "GTE") and Cellular Technical Services Company, Inc.,
having an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter called "CTS").
WHERAS, each party wishes to disclose to the other party certain
information relating to its proprietary technology, some of which information
the transmitting party deems to be confidential, and trade secrets; and
WHERAS, each party is willing to receive from the other party such
information for the purpose of evaluating whether the parties wish to enter
into a business relationship between CTS and GTE, (the "Project").
NOW THEREFORE, in consideration of the foregoing premises and the
mutual covenants and promises herein contained, the parties hereto agree as
follows:
1. This Agreement shall terminate upon completion of the Project
or four (4) years from the effective date first stated above, whichever
occurs first.
2. Confidential Information, as used herein, shall mean: (a)
written or documentary information which (1) relates to the above identified
subject matter, (ii) is received by one party directly or indirectly from the
other party, and (iii) is marked "Confidential" or "Proprietary
Confidential", or bears a marking of like import, or which one party states
in writing at the time of transmittal to or receipt by the other party is to
be considered confidential; and, (b) orally disclosed information which
relates to the above identified subject matter and which the transmitting
party, within twenty (20) days after the first oral disclosure thereof
confirms in a writing delivered to the receiving party the confidential
nature of such orally disclosed information. Such writing shall be
sufficiently specific to enable the receiving party to identify the
information considered to be confidential. The transmitting party shall have
the right to correct any inadvertent failure to designate information as
confidential or proprietary by written notification to the receiving party as
soon as practical (but in no event later than ten (10) business days) after
such error is determined by the transmitting party. Upon receipt of such
notification, the receiving party shall, from that time forward, treat such
information as Confidential Information in accordance with this Agreement.
3. The term "Trade Secrets" as used in this Agreement shall mean
Confidential Information that:
(i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use;
and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
4. The terms "Confidential Information" and "Trade Secrets" do
not include, and the receiving party shall have no obligation with respect to
information, which:
CONFIDENTIAL DISCLOSURE AGREEMENT PAGE 1
(i) is already known to the receiving party at the time of
the first disclosure thereof to the receiving party as evidenced by prior
documentation or other tangible embodiments of such information thereof; or
(ii) is or becomes publicly known through no wrongful act of
the receiving party; or
(iii) is rightfully received by the receiving party from a
third party without restriction and without breach of this or any other
Agreement, or
(iv) is approved for release by written authorization of an
officer of the transmitting party at the vice president level or higher.
The receiving party shall have the burden of proving the existence of any of
the exclusions described in this Section 4.
5. The Parties acknowledge and agree that as part of the
evaluation of the Project, the parties will obtain and have access to
Confidential Information and Trade Secrets of the other party and that the
misappropriation, unauthorized use or disclosure of such Confidential
Information or Trade Secrets would cause irreparable harm to the parties to
this Agreement. The parties agree to use the same degree of care to avoid and
prevent disclosure of any party's Confidential Information and Trade Secrets
as each party uses to prevent disclosure of its own Confidential Information
and Trade Secrets of a similar nature (which is in any event no lesser
standard than that which a reasonable person or business would utilize with
respect to its own similar trade secrets or confidential information).
6. With respect to any Confidential Information, each party
agrees that following the disclosure of confidential Information pursuant to
this Agreement, they shall not directly or indirectly use for any purpose
whatsoever or disclose any Confidential Information that the parties may have
or acquire in connection with the Project except as authorized in writing by
an officer (at the vice president level or higher) of the party to whom the
Confidential Information belongs.
7. With respect to any Trade Secrets, each party agrees not to
use for any purpose whatsoever or disclose the Trade Secrets of the other
party at any time hereafter except as authorized herein or until such Trade
Secrets become generally available to the public by independent discovery or
development or publication. The rights of the parties to protection of their
Trade Secrets in this Agreement are in addition to the rights which the
parties have under common or statutory law for the protection of Trade
Secrets.
8. The parties to this Agreement agree to disclose the other
party's Confidential Information or Trade Secrets only to their own employees
and affiliates directly involved in the evaluation of the Project with a need
to know. The receiving party shall be responsible for the failure of any of
its employees or affiliates to fully comply with all provisions of the
Agreement. Neither party hereto shall, internally or in conjunction with any
other person, reverse engineer, reverse compile or reverse assemble the
Confidential Information or Trade Secrets of the other party, or use such
Confidential Information or Trade Secrets for its own benefit or for the
benefit of others, for any purpose other than the purposes expressly
authorized herein in connection with the evaluation of technology described
in the Whereas Clauses, above. For purposes of this Agreement, the term
"affiliate" shall mean any corporation, firm, partnership or other legal
entity which is owned or controlled by any of the parties hereto to the
extent of equal to or more than fifty percent (50%) of the equity interest
having the power to
CONFIDENTAL DISCLOSURE AGREEMENT PAGE 2
vote on or otherwise to direct affairs of the entity. The party disclosing to
an affiliate any Confidential Information and/or Trade Secrets shall notify
the affiliate of its obligations under this Agreement. Each of the
undersigned GTE entities shall be jointly and severably liable for any breach
of this Agreement by an affiliate of any of the undersigned GTE entities.
9. The parties to this Agreement agree that all Confidential
Information or Trade Secrets of the transmitting party are the exclusive
property of such party and agree promptly to return to such party upon
demand, all such Confidential Information or Trade Secrets and copies thereof
furnished under this Agreement which is either received in or reduced to
material form.
10. Nothing contained in this Agreement shall be construed as (1)
requiring a party to disclose, or to accept, any particular information, or
(ii) granting to the receiving party a license, either express or implied,
under any patent, copyright, trade secret, or other intellectual property
rights now or hereafter owned, obtained, or licensable by the other party.
11. Except as otherwise provided in this Agreement, all notices
required or permitted to be given hereunder shall be in writing and shall be
valid and sufficient if dispatched by certified or registered mail, postage
prepaid, in any post office in the United States, by recognized courier, or
hand-delivered, addressed as follows:
If to CTS:
Attn. : Legal Department
Cellular Technical Services Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
If to GTE:
GTE Mobilnet of California Limited Partnership, GTE Mobilnet
of Santa ▇▇▇▇▇▇▇ Limited Partnership and GTE Mobilnet
Service Corp.
Attn.: Vice President/ General Manager
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
cc: Regional Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party hereto may change its address by a notice given to the other
party in the manner set forth above. Notices given as herein provided shall
be considered to have been received 5 days after mailing thereof or when
actually received, whichever occurs first.
12. Neither party under this Agreement shall publicly announce or
disclose the existence of this Agreement, or its contents, any discussions
relating thereto, or the discussions of the business relationship being
considered, without the prior consent of the other party or except as may be
required by law, in which case the party required to make disclosure shall
give the other party the maximum feasible prior notice of such disclosure.
CONFIDENTIAL DISCLOSURE AGREEMENT PAGE 3
13. The provisions of Paragraph 12 of this Agreement and the
provisions of this Agreement concerning nondisclosure and use of Confidential
Information and Trade Secrets shall survive the expiration or termination of
this Agreement.
14. This Agreement expresses the entire agreement and
understanding between the parties respecting the subject matter hereof and
shall not be modified except by a writing signed by authorized
representatives of the parties on or after the date hereof.
15. The persons executing this Agreement for and on behalf of the
parties hereto represent that they are fully authorized to do so for and on
behalf of their respective principals.
16. The parties hereto recognize and agree that money damages are
an inadequate remedy for breach of this Agreement by the receiving party and
further recognize that breach of this Agreement by the receiving party would
result in irreparable harm to the transmitting party. Accordingly, in the
event of a breach or threatened breach by the receiving party, the receiving
party may be enjoined from engaging in any activity prohibited by this
Agreement by injunction issued by a court of competent jurisdiction. In any
suit, proceeding or action to enforce any term, condition or covenant of this
Agreement or to procure an adjudication or determination of the rights of the
parties hereto, the prevailing party shall be entitled to recover from the
other party reasonable sums as attorneys' fees and costs and expenses in
connection with such suit, proceeding or action, including actions taken
prior to a lawsuit, and including an appeal, which sums shall be included in
any judgment or decree entered therein. If neither party wholly prevails, the
party that substantially prevails shall be awarded reasonable attorneys' fees
and related costs and expenses.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the effective date first written above.
CELLULAR TECHNICAL SERVICES COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------------
Title: Vice President and General Counsel
--------------------------------------------------
Date:
---------------------------------------------------
GTE MOBILNET SERVICE CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------------
Title: Vice President/ General Manager-California Region
--------------------------------------------------
Date:
---------------------------------------------------
GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP by GTE MOBILNET INCORPORATED,
its GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------------
Title : Vice President/ General Manager-California Region
--------------------------------------------------
Date:
----------------------------------------------------
CONFIDENTIAL DISCLOSURE AGREEMENT PAGE 4