Exhibit 10.14
EXECUTION COPY
MASTER SUPPLY,
SERVICES, and SYSTEM AGREEMENT
BETWEEN
▇▇.▇▇▇, L.L.C.
AND
LUCENT TECHNOLOGIES INC.
CONTRACT NUMBER LNM990304DLMPTI
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
TABLE OF CONTENTS
ARTICLE I
SECTION PAGE
----
1. Definitions 1
ARTICLE II
SCOPE AND STRUCTURE
2.1 Term of Agreement 1
2.2 Scope 1
2.3 Conflicting Terms 1
2.4 Purchase Target 1
2.5 Customer Responsibility 2
2.6 Network 2
2.7 Forecasts 2
2.8 Permits and Approvals 2
2.9 Additional Conditions 2
2.10 Agency Arrangements 3
ARTICLE III
GENERAL TERMS AND CONDITIONS
3.1 Orders 4
3.2 Changes In Customer's Orders 5
3.3 Changes in Products 5
3.4 Prices 5
3.5 Invoices, Acceptance and Terms of Payment 6
3.6 Purchase Money Security Interest 7
3.7 Taxes 8
3.8 Transportation and Packing 8
3.9 Title and Risk of Loss S
3.10 Personal Injury 8
3.11 Infringement 9
3.12 Customer's Remedies 10
3.13 Use of Information 11
3.14 Documentation 12
3.15 Notices 12
3.16 Force Majeure 12
3.17 Assignment 12
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
3.18 Termination 13
3.19 Independent Contractor 13
3.10 Releases Void 14
3.21 Publicity 14
3.22 Confidentiality of Agreement 14
3.23 Export Control 14
3.24 Amendments 14
3.25 Severability 14
3.26 Waiver 14
3.27 Survival 15
3.28 Section Headings 15
3.29 Choice of Law 15
3.30 Ambiguities 15
3.31 Facilities Access 15
3.32 Test-Based Laboratory 15
ARTICLE IV
PROVISIONS APPLICABLE TO LICENSED MATERIALS
4.1 License for Licensed Materials 16
4.2 Changes in Licensed Materials 16
4.3 Cancellation of License 16
4.4 Optional Software Features 16
4.5 Additional Rights in Licensed Materials 17
4.6 Installation of Software 17
4.7 Vendor Item Warranty 17
ARTICLE V
GENERAL SERVICES PROVISIONS
5.1 Personnel 17
5.2 Relocation, Modification or Improper Usage of Software 17
5.3 Services Not Covered 18
5.4 Personnel & Subcontractors 18
5.5 Work or Services Performed by Others 18
5.6 Provisions for Engineering and Installation Services 19
5.7 Provisions for Professional Services 25
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ARTICLE VI
PROJECT MANAGEMENT
6.1 Scope 27
6.2 Seller Project Management 27
6.3 Customer Project Management 27
ARTICLE VII
WARRANTY
7.1 Network Elements 27
7.2 Services 28
7.3 Network 28
7.4 Backwards Compatibility 29
7.5 Year 2000 Warranty 29
7.6 Bandwidth Assurance 29
7.7 Disclaimer 31
ARTICLE VIII
GENERAL ASSURANCE 31
ARTICLE IX
ATTACHMENTS 32
ARTICLE X
COUNTERPARTS 33
ARTICLE XI
ENTIRE AGREEMENT 33
EXHIBIT A 34
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
MASTER SUPPLY, SERVICES, and SYSTEM AGREEMENT
This Master Supply, Service, and System Agreement (Contract Number
LNM990304DLMPTI and referred to as "Agreement") is made and entered into as of
August 6, 1999, (the "Effective Date") by and between Lucent Technologies Inc.
("Seller"), a Delaware corporation operating through its Global Services
Provider group, with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇.▇▇▇, L.L.C., a Delaware limited liability company with
offices located at ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
"Customer").
WHEREAS, Customer desires to procure products and services from Lucent for
purposes of building and maintaining a telecommunications Network (hereafter
"Network") based on the terms and conditions set forth in this Agreement and the
terms, conditions, and Specifications set forth in any Attachment to this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties intending to be lawfully bound agree as
follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS
For the purpose of this Agreement, the following definitions will
apply:
(a) "Affiliate" of a corporation means any Subsidiary and any
other entity, which is controlled directly by Customer.
"Control" means (i) in the case of corporate entities,
ownership of stock or shares entitled to vote for the election
of the board of directors or other governing body of the
entity; and (ii) in the case of non-corporate entities,
ownership of equity or similar interest of more than fifty
percent (50%).
(b) "Attachment" means any Exhibits, Statements of Work,
Schedules, or any other documents that are integral to this
Agreement and the performance thereof.
(c) "Backwards Compatible" means (i) with respect to Licensed
Materials, the ability of newer or more advanced versions to
function seamlessly with the two prior older or less advanced
versions of Software or other Licensed Materials and with all
existing in-service Seller Provided Products already installed
in the Network, and (ii) with respect to Seller Provided
Products, the interoperability and compatibility of such
Seller Provided Products with existing infrastructure
resulting in no reduction in the existing level of
functionality of the existing infrastructure. For the purposes
of this definition, any particular version of Licensed
Materials shall mean only a Software Upgrade or Software
Enhancement.
(d) "▇▇▇▇ and Hold Products" means Products, Licensed Materials,
and/or parts thereof, which the Customer requests and Seller
agrees to inventory or warehouse, at a price mutually agreed
to by the parties, until final delivery to the Customer.
(e) "Commercial Service" means, with respect to any Network
Elements, the use of such Network Element to bring non-trial,
billable services to any customer of Customer.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
(f) "Customer" means ▇▇.▇▇▇, L.L.C. Customer shall also have the
right to designate Affiliate(s) who may purchase under this
Agreement which may be changed by written notice from Customer
to Seller and prior to order placement of such Affiliate(s).
Affiliates may be disallowed by Seller if: (a) such affiliate
is a competitor of Seller engaged in the business of
manufacturing systems comparable to those offered to the
Customer hereunder, or (b) such affiliate currently has
another purchase agreement with Seller. By virtue of placing
orders with Seller, Customer hereby guarantees the performance
and shall bind such Affiliates to the terms and conditions of
the Agreement. Customer shall promptly notify Seller in
writing of any change in the Affiliate status and such
Affiliate shall immediately be disqualified from purchasing
under this Agreement. Any such notices shall automatically
append to this Agreement and require no further amendments
between the parties. Upon such designation as an Affiliate,
such Affiliate shall be deemed a "Customer" for purposes of
this Agreement; provided, that any such designation shall not
relieve ▇▇.▇▇▇, L.L.C. from its obligations hereunder. "For
purposes of this definition, "Affiliate" shall include any
corporation, partnership, joint venture or other entity that
owns or plans to own or operate a telecommunications Network
in which Customer owns at least a 25% of the equity (or
equivalent).
(g) "Customer Price List(s)" means Seller's published "Ordering
and Price Guides" or other price notification releases made
generally available by Seller to its customers from time to
time for the purpose of communicating Seller's prices or
pricing related information to Customer; however, this does
not include firm price quotations.
(h) "Delivery Date" means the date under this Agreement by which
any deliverables ordered by Customer are delivered under this
Agreement to the F.O.B. point of origin or such other
destination as is mutually agreed upon.
(i) "Designated Processor" means the Product for which licenses to
Use Licensed Materials are granted.
(j) "Firmware" means a combination of (1) hardware and (2)
Software represented by a pattern of bits contained in such
hardware.
(k) "Fit" means physical size or mounting arrangement (e.g.,
electrical or mechanical connections).
(l) "Form" means physical shape.
(m) "Function" means the operation the Product performs.
(n) "Hazardous Materials" means material designated as a
"hazardous chemical substance or mixture" pursuant to Section
6 of the Toxic Substance Control Act; a "hazardous material"
as defined in the Hazardous Materials Transportation Act (49
U.S.C.1801, et seq.); "hazardous substance" as defined in the
Occupational Safety and Health Act Hazard Communication
Standard (29 CFR 1910.1200) or as defined in the
Comprehensive Governmental Response, Compensation and
Liability Act, 42 U.S.C. 9601 (14), or other pollutant or
contaminant.
(o) "Installation Complete Date" means the date on which Seller
has completed installation and related testing of Products or
Licensed Materials purchased or licensed hereunder and has, if
required under this Agreement, provided written notice thereof
to Customer ("Turnover") and said installation has been
accepted by Customer pursuant to Article 3.5.2.
(p) "Licensed Materials" means the Software and Related
Documentation for which Seller grants licenses under this
Agreement; no Source Code versions of Software are included in
Licensed Materials.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
(q) "Network Elements" means the Products and Licensed Materials
provided by Seller to Customer under this Agreement that are
inherent to the Network.
(r) "Product" means equipment hardware, and parts thereof, and
various components of the Network Elements.
(s) "Related Documentation" means materials delivered by Seller to
Customer useful in connection with Software such as, but not
limited to, flowcharts, logic diagrams and listings, program
descriptions and Specifications.
(t) "Services" mean activities provided by Seller to Customer
under this Agreement, which may include but are not limited
to, installation, provisioning, integration testing, and
monitoring.
(u) "Software" means a computer program consisting of a set of
logical instructions and tables of information that guide the
functioning of a processor. Such program may be contained in
any medium whatsoever, including hardware containing a pattern
of bits, representing such program. However, the term
"Software" does not mean or include such medium.
(v) "Source Code" means any version of Software incorporating
high-level or assembly language that generally is not directly
executable by a processor.
(w) "Specifications" means Seller's or its vendor's technical
specifications for particular Products or Software furnished
hereunder.
(x) "Standard Interval" means the lead time for shipment for
Products and Licensed Materials for all purchases placed under
this Agreement. The Standard Interval shall be thirty (30)
days after the date of Seller's receipt of such purchase
order, unless a different Standard Interval is set forth in
the applicable Attachment.
(y) "Subsidiary" means any corporation or other entity in which
Customer owns more than fifty percent (50%) of the eligible
voting stock or equivalent voting power; such corporation or
entity shall be deemed to be a Subsidiary of such Customer
only as long as such ownership or control exists.
(z) "Term" means the Initial Term of this Agreement and any
extensions pursuant to Section 2 beyond the Initial Term.
(aa) "Turnover" means, with respect to Products and Software to be
installed by Seller, the point at which Seller has completed
the installation and related testing and notifies Customer
that the installation and related testing is completed and
that Seller has confirmed that the installed Product and/or
Software comply with Seller's Specifications.
(bb) "Use," with respect to Licensed Materials means loading the
Licensed Materials, or any portion thereof, into a Designated
Processor for execution of the instructions and tables
contained in such Licensed Materials.
(cc) "Vendor Items" means Network Elements sold by Seller under
this Agreement that are not manufactured by Seller or its
affiliates.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ARTICLE II
SCOPE AND STRUCTURE
2.1 TERM OF AGREEMENT
2.1.1 The term of this Agreement shall commence on the Effective Date and
shall continue in effect thereafter until December 31, 2004 ("Initial
Term"). Upon written notice from Customer, no less than sixty (60) days
prior to the expiration of the Initial Term, Customer may extend this
Agreement for successive one (1) year terms, provided however, that
Seller and Customer mutually agree to any new terms and conditions,
Specifications, or pricing that may be negotiated therein.
2.2 SCOPE
2.2.1 Under the terms and conditions and prices set forth in this Agreement
and set forth in any Attachments to this Agreement, Seller will provide
Products, Licensed Materials and Services to Customer for Customer's
telecommunications Network and sell to Customer such Network Elements
that include, but are not limited to switching, access, transmission,
data communications, EP products, fiber optic cable, power and related
equipment for Customer's Network. Customer understands and agrees that
all Products, Licensed Materials, or Services furnished by Seller to
Customer pursuant to this Agreement shall be for Customer's own
internal use in the United States, Canada, Mexico, and any other
countries which join the North American Free Trade Agreement
2.2.2 In consideration of Seller's providing the financing referred to below,
Customer agrees to purchase no less than 87% of its requirements for
each of Seller's Data Networking Products, Optical Networking Products
and Network Products Group products and for fiber optic products the
percentage of Customer requirements set forth in Attachment A; provided
that such products shall (i) be priced competitively as compared to
comparable product sold by third party vendors and (ii) possess the
functionality required by Customer. Customer's obligation under this
paragraph shall terminate and be of no further effect on the date that
Lucent is no longer a lender to Customer and has no commitment to
provide financing to Customer.
2.3 CONFLICTING TERMS
Any firm price quotes made by Seller to Customer during the term of
this Agreement shall incorporate the terms and conditions of this
Agreement. Any conflicting terms and conditions of a firm price quote
signed by an authorized representative of Seller and Customer and dated
after the effective date of this Agreement, will supersede the
comparable terms of this Agreement.
In the event of any conflict between the Agreement and an Attachment,
the terms and conditions of the Attachment shall prevail or the
non-conflicting terms and conditions of the Agreement shall prevail.
2.4 PURCHASE TARGET
Under the terms and conditions and prices set forth herein and set
forth in any Attachments to this Agreement, Customer's intent is to
purchase from Seller at least five hundred seventy four ($547) million
dollars ("Purchase Target") of Products, Licensed Materials, and
Services (including purchases made on behalf of AT&T pursuant to
Section 2.10.1).
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
Purchase Period Cumulative Purchase Orders
Year 1 $150 million dollars
(Effective Date through December 31, 2000)
Year 2 $200 million dollars
Year 3 $75 million dollars
Year 4 $70 million dollars
Year 5 $55 million dollars
No less than thirty (30) days prior to the end of Purchase Periods Year
2, Year 3, Year 4, and Year 5, Seller and Customer will review
Customer's purchases for the previous periods to determine if Customer
has met the Cumulative Purchase Target. The Purchase Target represents
Customer's current intent and does not constitute a binding obligation
on its part.
2.5 CUSTOMER RESPONSIBILITY
Customer shall, at no charge to Seller, provide Seller with such
technical information, data, technical support or assistance as may
reasonably be required by Seller to fulfill its obligations under this
Agreement, any subordinate agreement or order. If Customer fails to
provide the technical information, data, support or assistance, Seller
shall be discharged from any such obligation.
2.6 NETWORK
Seller will provide Products and Licensed Materials and Services, which
include but are not limited to those listed in the Attachments to this
Agreement to help build and monitor Customer's telecommunications
Network in accordance with the terms and conditions contained herein,
in accordance with the Specifications set forth in the Attachments.
Seller agrees to install and perform integration testing on all
essential Network Elements as mutually agreed to by the parties.
2.7 FORECASTS
Customer hereby agrees that within one (1) month after the Effective
Date of this Agreement, Customer shall provide Seller an initial
forecast of the portions of the Network to be implemented during the
first year of this Agreement. Customer shall, on a quarterly basis
thereafter, provide Seller a twelve (12) month forecast of the portions
of the Network that will be implemented.
2.8 PERMITS AND APPROVALS
Any applicable permits, in connection with the implementation and
operation of the Network that may be required by any government entity
will be the sole responsibility of the Customer.
2.9 ADDITIONAL CONDITIONS
2.9.1 Customer's obligations under this Agreement are contingent on Seller
entering into a definitive financing agreement to provide financing
subject to terms and conditions to be mutually agreed . If such
definitive financing agreement is not executed by September 30, 1999,
Customer shall have the right to terminate this Agreement. Seller
retains the right to all the architecture and other intellectual
property incorporated in the Initial Plan issued pursuant to Attachment
B in the event the parties hereto cancel this Agreement for any reason.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
2.9.2 Seller shall have the right, at its expense, to perform quarterly
audits of Customer's progress in implementing its business plan,
strategies, and the procurement of Seller's Products, Licensed
Materials, and Services.
2.10 AGENCY ARRANGEMENTS
2.10.1 The parties contemplate that Customer will act as purchasing agent for
AT&T in respect of Seller's Fiber Optic Cable and associated equipment
(Attachment A) for certain construction routes to be agreed by Customer
and AT&T. On receipt of written authorization from AT&T, Seller agrees
that such purchases can be made pursuant to a purchase order issued
under this Agreement, but utilizing the prices provided for in this
Agreement or the price levels including Fiber Optic Cable price
discounts contained in Seller's contract with AT&T. Seller shall issue
separate invoices to Customer and AT&T based on the quantity of Fiber
Products purchased by each company as set forth in the applicable
purchase order.
2.10.2 It is also contemplated that Customer will act as purchasing agent
within the United States for (i) its partners (other than AT&T
participating in the build-out of Customer's network and (ii) its ISP
customers in respect of Seller's Products covered by Attachments A, C
and D. Customer shall provide a list of such partners and Customers to
Seller for its prior approval, which shall not be unreasonably
withheld. On receipt of written authorization from any such third
party, Seller agrees that such purchases may be made pursuant to an
order issued under this Agreement applying the terms contained in this
Agreement. Prices shall be as agreed to between Customer and the third
party purchaser for which it is serving as purchasing agent (which
prices shall not be less than the applicable prices under this
Agreement). Seller shall review the pricing offered by Customer to the
third party purchaser prior to agreeing to the sale for the sole
purpose of determining whether said prices trigger any price protection
clauses in other contracts to which Seller is a party. If the proposed
pricing offered by Customer triggers such clause, Customer will change
its prices so as to correct the situation. Seller shall issue the
applicable invoices to the third party purchaser. Within 30 days after
receipt of payment for each invoice, Seller shall remit to Customer an
agents fee in an amount equal to the amount that (A) the price paid by
the third party customer exceeds (B) the amount that would have been
payable by Customer for the products purchased by the third party
purchaser if Customer had purchased such products for itself pursuant
to the pricing provided in this Agreement.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ARTICLE III
GENERAL TERMS AND CONDITIONS
3.1 ORDERS
All orders submitted by Customer for Products, Licensed Materials, and
Services shall incorporate and be subject to the terms and conditions
of this Agreement. Any order submitted pursuant to a firm price
quotation shall include such firm price quotation number. All orders,
including electronic orders, shall contain the information as detailed
below:
(a) Complete and correct ship to and ▇▇▇▇ to address;
(b) The quantity and type of Products, Licensed Materials, and
Services being ordered;
(c) The price;
(d) The requested Delivery Date in accordance with Seller's
Standard Interval for the Products, Licensed Materials, and
Services being ordered. In the event a non standard interval
has been mutually agreed to by the parties, reference to the
specific document agreeing to the interval needs to be
included;
(e) The requested completion date in accordance with Seller's
Standard Interval for the Products, Licensed Materials, and
Services being ordered;
(f) Reference to this Agreement;
(g) If an order is for ▇▇▇▇ and Hold Products, the phrase "▇▇▇▇
and Hold" must be clearly and conspicuously stated in the
order.
Seller shall make any delivery on the Delivery Date set forth in the
applicable order, provided that such Delivery Date is in accordance
with Seller's published Standard Intervals in effect on the date of
receipt of the applicable order by Seller. Seller will not make
deliveries earlier than the Delivery Date in accordance with Seller's
published Standard Intervals unless mutually agreed to by the Customer
and Seller in writing. Seller reserves the right to change such
standard order intervals without notification to Customer but only with
respect to future orders. Such change shall not affect orders accepted
by Seller prior to the change to the standard order intervals.
Electronic orders shall be binding on Customer notwithstanding the
absence of a signature. All orders are subject to acceptance by Seller.
Seller reserves the right to place any order on hold, delay shipment,
and/or reject any order upon the material breach or default by Customer
of its obligations under this Agreement or if Customer has failed to
make timely payments under this Agreement. Terms and conditions on
Customer's purchase order which are inconsistent with the provisions of
this Agreement and any pre-printed terms and conditions on Customer's
purchase order shall be ineffective, void and of no force and effect.
Orders shall be sent to the following address:
Lucent Technologies Inc.
Customer Service
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If an order is for ▇▇▇▇ and Hold Products, the phrase "▇▇▇▇ and Hold"
must be indicated on the order. In the event Customer orders such
Products, Seller will defer final shipment of Product(s) until the
final ship date that is indicated on Order, or, if no ship date is
indicated on the Order, then Seller will ship Products upon a date that
is mutually agreed to between the parties. In no event shall Seller be
obligated to hold ▇▇▇▇ and Hold Products longer than one (1) year from
the date of the applicable Order. Customer agrees to pay Seller a
monthly stocking
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
fee of 15% of the applicable purchase Price for any ▇▇▇▇ and Hold
Products held beyond the final ship date indicated on the purchase
order or as otherwise mutually agreed to.
3.2 CHANGES IN CUSTOMER'S ORDERS
With respect to each Order for Network Elements or Services, Customer
may make a written request at least ninety (90) days prior to the
scheduled Delivery Date of such Network Elements or the scheduled start
date for such Services, as the case may be, for a change ("Change")
consisting of certain addition(s) or deletion(s) to such order. After
receipt of such request, Seller shall submit a Job Change Order ("JCO")
to Customer for Customer's approval with respect to the requested
Change. Each JCO shall state whether the requested Change shall
increase or decrease the applicable price (in accordance with the
pricing applicable under this Agreement) and/or the time required by
Seller for any aspect of its performance under the Agreement with
respect to such order. Customer shall accept or reject the JCO in
writing within ten (10) days of receipt thereof. Failure of Customer to
accept or reject the JCO in writing as described above shall be deemed
a rejection of the JCO by Customer. In the event an accepted JCO
involves the return to Seller of any Product which shall have been
previously delivered to Customer, Seller may invoice and Customer shall
pay a 15% restocking fee and the transportation costs, plus a
cancellation fee equal to Seller's direct out-of-pocket expenses
incurred for any design, engineering or other related services.
If Customer rejects a proposed JCO, then the rights and obligations of
the parties with respect to the applicable order shall not be subject
to Customer's requested Change, except that Customer shall promptly pay
Seller's customary engineering charges that may have been incurred in
connection with preparation of the Change and Seller shall be entitled
to an extension of the dates for performance of its obligations with
respect to the applicable order as a result of any delays in such
performance which result from the foregoing.
Customer may by written notice delivered to Seller cancel without
charge any order for Network Elements or Services prior to the Delivery
Date of the applicable Network Elements forth in such order or the
agreed date for the commencement by Seller of the applicable Services.
However, if Customer cancels such order within six (6) weeks or less of
any such date, a cancellation fee equal to Seller's direct
out-of-pocket expenses incurred for design, engineering or other
related services shall be payable by Customer. Seller may invoice such
amount upon receipt of Customer's notice of cancellation of the
applicable order.
3.3 CHANGES IN PRODUCTS
Prior to shipment, Seller may at any time make changes in Products.
Seller may modify the Product(s) drawings and Specifications or
substitute Products of later design. Seller agrees that such
modifications or substitutions will not impact upon Form, Fit, or
Function under normal and proper use of the ordered Product as provided
in Seller's Specifications. With respect to changes, modifications, and
substitutions that do impact the Form, Fit, or Function of the ordered
Product, Seller shall notify Customer in writing at least four (4)
months prior to the date the changes become effective, except in those
cases where the change is the result of legal mandate or changes in
recognized industry standards for which the notice period to Customer
shall be at least thirty (30) days. During such four (4) month period,
Customer may order and Seller shall sell to Customer as much of such
Product as Customer desires that Seller is reasonably able to deliver
at the applicable prices under this Agreement.
3.4 PRICES
3.4.1 Prices for Network Elements and Services are set forth in the
Attachments to this Agreement. Except as expressly stated in this
Agreement, in any Attachments, or in any firm price quote all
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
other Prices shall be those contained in Seller's Customer Price Lists
after deductions for all applicable discounts as provided in the
applicable Attachments. To the extent Customer's order is subject to a
firm price quotation made by Seller, prices, fees and charges shall be
as set forth in Seller's firm price quotation.
The applicable Customer Price List shall be the issue that is in effect
on the date of Seller's receipt of the order. The requested Delivery
Date of such order must be in accordance with Seller's Standard
Interval. Prices for Products and license fees for Licensed Materials
to be shipped, or Services to be performed beyond the published
shipping interval will be based upon the date required for order entry
by Seller in accordance with Customer's requested date and applying the
Price from the Customer Price List as of that date.
Seller may amend its Customer Price Lists, other than those subject to
firm price quotations and those discounts set forth in the applicable
Attachments. Seller agrees to provide thirty (30) days written notice
of any increase in Prices contained in Seller's Customer Price Lists.
When Prices contained in Seller's Customer Price Lists are adjusted for
changes in raw material prices, Seller's new Prices will be revised
effective the first day of any given month. The basis for raw material
adjustments will be provided to Customer upon request and shall be
applied to pricing adjustments for all of Seller's customers buying the
same Products.
3.4.2 Notwithstanding anything to the contrary contained in this Agreement or
in any Attachment, starting six months after the Effective Date, Seller
and Customer shall meet every six months during the Term to review
pricing and discount levels for Products and Licensed Materials
purchased or licensed by Customer under Attachment D of this Agreement.
At such meeting, Seller shall provide Customer with a summary analysis
of the pricing by product type for Products and Licensed Materials sold
or licensed to two (2) of Seller's customers (without identifying the
specific Customer) of size and/or purchase history equivalent to
Customer, taking into account all relevant material terms and
conditions of the respective contracts. If the prices paid for
comparable products by Customer exceeds one hundred five percent (105%)
of the average of the prices provided to these two (2) customers.
Seller shall prospectively reduce its prices to meet the lower price.
This paragraph shall supplement (and not replace) the provisions of
Sections 3.3 of Attachment A.
3.5 INVOICES, ACCEPTANCE AND TERMS OF PAYMENT
3.5.1 (a) For Products, Licensed Materials and Services (including
transportation charges and taxes, if applicable) (a) Seller will
invoice Customer, all amounts due for Products and Licensed Materials
only upon shipment, such shipment not to occur earlier than the planned
Delivery Date without written approval of Customer. (B) Seller will
invoice Customer for Engineering and Installation Services upon
Installation Complete, (c) for all other Services, Seller will invoice
Customer either upon completion of the Service, on a monthly basis, as
Services are performed or as set forth in the applicable Attachment.
Customer shall pay such invoiced amounts for receipt by Seller within
thirty (30) days of the invoice date. Seller will invoice ▇▇▇▇ and Hold
Products upon the earlier of (i) completion of assembly at Seller's
facility or (ii) upon stocking at Customer's designated location. Such
invoice will serve as Seller's notification that ▇▇▇▇ and Hold Products
are complete and ready to be released by Customer for final shipment.
(b) Seller shall send all invoices to Customer by e-mail with a copy
also sent by U.S. Mail as follows: ▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇. Customer may
change the recipient of the invoices using the provisions of Section
3.15.
3.5.2 Customer shall pay all amounts due Seller hereunder using Electronic
Funds Transfer ("EFT") whether amounts have been invoiced by Seller or
are due as advance payments. EFT payments by Customer shall be made to
the following account of Seller or such other account as is
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
subsequently designated by Seller in writing and, concurrent with the
EFT payment, Customer shall fax a copy of the remittal to Seller's
Manager Cash Operations at ▇▇▇-▇▇▇-▇▇▇▇.
Chase Manhattan Bank
New York, New York
Account Name: Lucent Technologies Inc.
ACCT. 910144-9099
ABA ▇▇▇▇▇▇▇▇▇
If customer pays any invoice amount within ten (10) days of the date of
invoice, it shall receive a credit of one-half of one percent (0.5%) of
the amount of said invoice. This credit can be applied against any
future invoices.
3.5.3 For Products or Licensed Materials to be installed by Seller, Seller
shall perform the installation acceptance test for the Product or
Licensed Materials being installed pursuant to a mutually agreed
installation and testing process ("Installation Test Plan"). Pending
such agreement the Installation Test Plan shall be the test plan
contained in the Specifications for the applicable Products or Licensed
Materials. After completion of the Installation Test, Seller shall
determine whether the test results are satisfactory and in conformance
with the Installation Test Plan. If Seller advises Customer that such
test results are satisfactory, Seller shall issue a Notice of
Turnover. The Installation shall be deemed accepted unless Customer
provides notification to the contrary no later than thirty (30) days
from Turnover.
3.5.4 If Customer fails to pay any invoiced amount not in dispute when due,
the invoiced amount will be subject to a late payment charge at the
rate of one and one half percent (1-1/2%) per month, or portion
thereof, of the amount due (but not to exceed the maximum lawful rate).
Customer agrees to pay Seller's attorneys' fees and other costs
incurred by Seller in the collection of any delinquent amounts invoiced
hereunder, provided there was no genuine dispute concerning the
invoiced amounts.
Customer agrees to review all invoices furnished by Seller hereunder
upon receipt and, notify Seller of any billing discrepancies or
disputed amounts within ten (10) business days of receipt of the
applicable invoice. Such inquiries can be directed to Seller in writing
or by telephone. Inquiries shall be made to the telephone number or, if
in writing, to the address identified on the invoice.
3.6 PURCHASE MONEY SECURITY INTEREST
Seller reserves and Customer agrees that Seller shall have a purchase
money security interest in all Products and Licensed Materials
heretofore supplied or hereafter supplied to Customer by Seller under
this Agreement until any and all payments and charges due Seller under
this Agreement including, without limitation, shipping and installation
charges, are paid in full. Seller shall have the right, at any time
during the Term, to file in any state or local jurisdiction such
financing statements (e.g., UCC-1 financing statements) as Seller deems
necessary to perfect its purchase money security interest hereunder.
Upon such filing of any financing statement, Seller shall provide
Customer with notice and a copy of such filing. Upon request by Seller,
Customer hereby agrees to execute all documents necessary to secure
Seller's purchase money security interest including without limitation,
UCC-1 or such other documents Seller deems reasonably necessary to
perfect such security interest. Notwithstanding the foregoing
obligation of Customer to execute, Customer hereby irrevocably appoints
Seller as its attorney-in-fact for purposes of executing and filing
such financing statements and such other documents prepared by Seller
or its designated agent for purposes of perfecting Seller's security
interest hereunder.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
In addition to any other remedy available to Seller as provided herein,
by common law and by statute, Seller may exercise its right to reclaim
all Products and Licensed Materials sold to Customer pursuant to
UCC-2-702 or such other applicable provision as it may exist from state
to state, upon discovery of Customer's insolvency, provided Seller
demands in writing reclamation of such goods before ten (10) days after
receipt of such goods by Customer, or if such ten (10) day period
expires after the commencement of a bankruptcy case, before twenty (20)
days after receipt of such goods by the Customer.
3.7 TAXES
Customer shall be liable for and shall reimburse Seller for all taxes,
duties, import fees, and related charges, however designated, imposed
upon or based upon the provision of Services sale, license or Use of
Products, Licensed Materials levied upon the sale, excluding taxes
based on Seller's net income, unless Customer provides Seller with a
valid tax exempt certificate. Seller's failure to collect taxes in
accordance herewith shall not be deemed to be an authorization to
resell Products or Services or sublicense Licensed Materials.
3.8 TRANSPORTATION AND PACKING
Seller, in accordance with its normal practices, shall arrange for
prepaid transportation to destinations in the contiguous United States
and shall invoice transportation charges to Customer. Premium
transportation will be used only at Customer's request. Seller shall
pack Products for delivery in the contiguous United States, in
accordance with its standard practices for domestic shipments. Where,
in order to meet Customer's requests, Seller packs Products in other
than its normal manner or for destinations outside the contiguous
United States, Customer shall pay the additional charges for such
packing and transportation. Notwithstanding the foregoing, all
transportation and packing charges for a single purchase order which
results in full truck load being shipped to a Customer location will be
paid by Seller. Customer agree to pay for any shipping charges related
to pre-fab concrete huts.
3.9 TITLE AND RISK OF LOSS
Title to Products only and risk of loss to Products and Licensed
Materials shall pass to Customer upon delivery to the Customer at the
F.O.B. point of origin. Title to all Licensed Materials (whether or not
part of Firmware) furnished by Seller, and all copies thereof made by
Customer, including translations, compilations and partial copies are,
and shall remain, the property of Seller. Title to Products only and
risk of loss for Products and Licensed Material for ▇▇▇▇ and Hold
Products shall pass to Customer upon stocking at Seller's facility or
Customer's designated location, whichever occurs earlier. For purposes
of this section, "delivery" shall mean the point at which Seller or
Seller's Seller or agent turns over possession of the Product or
Licensed Materials to Customer, Customer's employee, Customer's
designated carrier, Customer's warehouse, or other Customer's agent and
not necessarily the final destination shown on the order.
3.10 PERSONAL INJURY
Each party hereto shall indemnify and hold harmless the other party and
its officers, directors, employees and affiliates against costs and
expenses arising from suits, claims or proceedings brought against the
other party for direct damages due to personal injuries (including
death) which allegedly results from the negligence or willful
misconduct of the defending party in the performance of this Agreement.
The indemnifying party shall pay all litigation costs, reasonable
attorney's fees, settlement payments and such direct damages awarded or
resulting from any such suite, claim or proceeding.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
3.10 A INDEMNIFICATION PROCEDURES
Any party that proposes to assert the right to be indemnified under
Section 3.10 (Personal Injury) will, promptly after receipt of notice
of commencement of any action against such party in respect of which a
claim is to be made against an indemnifying party or parties under
either of such Sections, notify the indemnifying party of the
commencement of such action, enclosing a copy of all papers served, but
the omission so to notify such indemnifying party will not relieve it
from any liability that it may have to any indemnified party under the
foregoing provisions of Section 3.10 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party will be entitled to
participate in, and to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, to assume the
defense of the action, with counsel reasonably satisfactory to the
indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any
legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. An indemnified party
will have the right under Section 3.10 to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it that are different from or in addition
to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified part and the indemnifying
party (in which case the indemnifying party will not have the right to
direct the defense of such action on behalf of the indemnified party),
or (4) the indemnifying party has not in fact employed counsel to
assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party. An indemnifying party
will not be liable under Section 3.10 for any settlement of any action
or claim effected without its written consent (which consent will not
be unreasonably withheld).
3.11 INFRINGEMENT
In the event of any claim, action, proceeding or suit by a third party
against Customer, any affiliate of Customer or any of their respective
officers, directors, employees or agents ("indemnified persons"),
alleging an infringement of any United States patent, United States
copyright, or United States trademark, or a violation in the United
States of any trade secret or proprietary rights by reason of the use,
in accordance with Seller's Specifications, of any Product or Licensed
Materials furnished by Seller to Customer under this Agreement, Seller,
at its expense, will defend and hold harmless Customer and the
indemnified parties, subject to the conditions and exceptions stated
below. Seller will reimburse Customer and the indemnified parties for
any cost, expense or attorneys' fees, incurred at Seller's written
request or authorization, and will indemnify Customer and the
indemnified parties against any liability assessed against Customer and
the indemnified parties by final judgment on account of such
infringement or violation arising out of such use.
If Customer's use shall be enjoined or in Seller's opinion is likely to
be enjoined, Seller will, at its expense and at its option, either
promptly (1) replace the enjoined Product or Licensed Materials
furnished pursuant to this Agreement with a suitable substitute free of
any
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
infringement; (2) modify it so that it will be free of the
infringement; or (3) procure for Customer a license or other right to
use it. If none of the foregoing options can be accomplished, Seller
will remove the enjoined Product or Licensed Materials and refund to
Customer any amounts paid to Seller therefor less a reasonable charge
for any actual period of use by Customer.
Customer shall give Seller prompt written notice of all such claims,
actions, proceedings or suits alleging infringement or violation and
Seller shall have full and complete authority to assume the sole
defense thereof, including appeals, and to settle same. Customer shall,
upon Seller's request and at Seller's expense, furnish all information
and assistance available to Customer and cooperate in every reasonable
way to facilitate the defense and/or settlement of any such claim,
action, proceeding or suit.
An indemnified party will have the right under this Section to employ
its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it that are different
from or in addition to those available to the indemnifying party, (3) a
conflict or potential conflict exists (based on advice of counsel to
the indemnified party) between the indemnified part and the
indemnifying party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf of the
indemnified party), or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party. An indemnifying party will not be liable under this Section for
any settlement of any action or claim effected without its written
consent (which consent will not be unreasonably withheld).
No undertaking of Seller under this section shall extend to any such
alleged infringement or violation to the extent that it: (1) arises
from adherence to design modifications, specifications, drawings, or
written instructions which Seller is directed by Customer to follow,
but only if such alleged infringement or violation does not reside in
corresponding commercial Product or Licensed Materials of Seller's
design or selection; or (2) arises from adherence to instructions to
apply Customer's trademark, trade name or other company identification;
or (3) resides in a product or licensed materials which are Vendor
Items and which are furnished by Customer to Seller for use under this
Agreement; or (4) relates to uses of Product or Licensed Materials
provided by Seller in combinations with other Product or Licensed
Materials, furnished either by Seller or others, which combination was
not installed, recommended or otherwise approved by Seller. In the
foregoing cases numbered (1) through (4), Customer will defend and save
Seller harmless, subject to the same terms and conditions and
exceptions stated above, with respect to the Seller's rights and
obligations under this section.
The liability of Seller and Customer with respect to any and all
claims, actions, proceedings or suits by third parties alleging
infringement of patents, trademarks or copyrights or violation of trade
secrets or proprietary rights because of, or in connection with, any
Products or Licensed Materials furnished pursuant to this Agreement
shall be limited to the specific undertakings contained in this
section.
3.12 CUSTOMER'S REMEDIES
CUSTOMER'S EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF SELLER, ITS
AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SELLERS FOR
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF CUSTOMER OR ANY OTHER ENTITY
ARISING OUT OF THIS AGREEMENT, OR THE USE, PERFORMANCE, OR
NON-PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, OR SERVICES,
WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT,
INCLUDING NEGLIGENCE, INDEMNITY, OR STRICT LIABILITY, SHALL BE AS
FOLLOWS:
1. FOR INFRINGEMENT - THE REMEDY SET FORTH IN SECTION 3.11;
2. FOR THE NON-PERFORMANCE OF PRODUCTS AND SOFTWARE, AND FOR THE
PERFORMANCE OR NON-PERFORMANCE OF SERVICES DURING THE WARRANTY
PERIOD - THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY"
SECTION OF ARTICLE VII;
3. FOR TANGIBLE PROPERTY DAMAGE TO CUSTOMER'S PROPERTY AND
PERSONAL INJURY CAUSED BY SELLER'S NEGLIGENCE AND WILLFUL
MISCONDUCT - THE AMOUNT OF THE PROVEN DIRECT DAMAGES; AND FOR
THE REMEDY SET FORTH IN SECTION 3.10A.
4. FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE - THE AMOUNT OF
THE PROVEN DIRECT DAMAGES NOT TO EXCEED $250,000 PER
OCCURRENCE, INCLUDING AWARDED COUNSEL FEES AND COSTS.
PROVIDED HOWEVER THAT THIS SECTION 3.12.4 SHALL NOT APPLY TO
THE REMEDY SET FORTH IN SECTION 7.1 RELATING TO REMOVAL AND
REINSTALLATION EXPENSES ARISING FROM A DEFECT IN SELLER'S
FIBER OPTIC PRODUCTS.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER, ITS
AFFILIATES AND THEIR EMPLOYEES, AND AGENTS, AND ITS SELLERS SHALL NOT
BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR
LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE
USE OR PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, OR THE PROVISION
OF SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF
CONTRACT, TORT, INCLUDING NEGLIGENCE, OR STRICT LIABILITY. THIS SECTION
SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY.
CUSTOMER SHALL GIVE SELLER PROMPT WRITTEN NOTICE OF ANY CLAIM. ANY
ACTION OR PROCEEDING AGAINST SELLER MUST BE BROUGHT WITHIN TWENTY-FOUR
(24) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
SELLER'S ENTIRE LIABILITY FOR ANY CLAIM OR LOSS, DAMAGE OR EXPENSE FROM
ANY CAUSE WHATSOEVER (OTHER THAN SECTION 3.11) SHALL IN NO EVENT EXCEED
THE TOTAL MONIES ACTUALLY PAID TO SELLER FOR PRODUCTS, LICENSED
MATERIALS AND/OR SERVICES COVERED BY THE APPLICABLE ATTACHMENT(S) UNDER
WHICH THE SPECIFIC PRODUCTS, LICENSED MATERIALS, OR SERVICES COVERED BY
THE APPLICABLE ATTACHMENT THAT GIVE RISE TO THE CLAIM WERE PURCHASED.
NO ACTION OR PROCEEDING AGAINST SELLER MAY BE COMMENCED MORE THAN TWO
YEARS AFTER THE SERVICES ARE RENDERED. THIS CLAUSE SHALL SURVIVE
FAILURE OF AN EXCLUSIVE REMEDY
3.13 USE OF INFORMATION
All technical and business information in whatever form recorded which
bears a legend or notice restricting its use, copying, or dissemination
or, if not in tangible form, is described as being proprietary or
confidential at the time of disclosure and is subsequently summarized
in a writing so marked and delivered to the receiving party within
thirty (30) days of disclosure to
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
the receiving party (all hereinafter designated "Information") shall
remain the property of the furnishing party. The furnishing party
grants the receiving party the right to use such Information only for
purposes expressly permitted in this section. Such Information (1)
shall not be reproduced or copied, in whole or part, except for use as
authorized in this Agreement; and (2) shall, together with any full or
partial copies thereof, be returned or destroyed when no longer needed.
Moreover, when Seller is the receiving party, Seller shall use such
Information only for the purpose of performing under this Agreement,
and when Customer is the receiving party, Customer shall use such
Information only (1) to order; (2) to evaluate Seller's Products,
Licensed Materials and Services; or (3) to install, operate and
maintain the particular Products and Licensed Materials for which it
was originally furnished. Unless the furnishing party consents in
writing, such Information, except for that part, if any, which is known
to the receiving party free of any confidential obligation, or which
becomes generally known to the public through acts not attributable to
the receiving party, shall be held in confidence by the receiving
party. The receiving party may disclose such Information to other
persons, upon the furnishing party's prior written authorization, but
solely to perform acts which this section expressly authorizes the
receiving party to perform itself and further provided such other
person agrees in writing (a copy of which writing will be provided to
the furnishing party at its request) to the same conditions respecting
use of Information contained in this section and to any other
reasonable conditions requested by the furnishing party.
3.14 DOCUMENTATION
Seller shall furnish to Customer, at no additional charge; one (1) copy
of the documentation for Products and/or one (1) copy of the Related
Documentation for Software licensed to Customer. Such documentation
shall be that which is customarily provided by Seller to its Customers
at no additional charge. Such documentation shall be sufficient to
enable Customer to operate and maintain such Products and Software in
accordance with Seller's Specifications. Such documentation shall be
provided either prior to, included with, or shortly after shipment of
Products and/or Software from Seller to Customer. Additional copies of
such documentation are available at prices set forth in Seller's
Customer Price Lists.
3.15 NOTICES
Any notice, demand or other communication (other than an order)
required, or which may be given, under this Agreement shall, unless
specifically otherwise provided in this Agreement, be in writing and
shall be given or made by nationally recognized overnight courier
service, confirmed facsimile, or certified mail, return receipt
requested and shall be addressed to the respective parties as follows:
If to Seller:
ATTN: Contract Manager
Lucent Technologies Inc.
Global Service Provider
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Customer:
▇▇. ▇▇▇▇ ▇▇▇▇▇, Chairman and Chief Executive Officer
▇▇.▇▇▇, L.L.C.
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
Any such notice shall be effective upon receipt. Each party may change
its designated representative or address for receipt of communications
and notices by giving written notice to the furnishing party.
3.16 FORCE MAJEURE
Except for payment obligations, neither party shall be held responsible
for any delay or failure in performance to the extent that such delay
or failure is caused by fires, strikes, embargoes, explosions,
earthquakes, floods, wars, water, the elements, labor disputes,
government requirements, civil or military authorities, acts of God or
by the public enemy, unavailability of raw materials or transportation
facilities, acts or omissions of carriers or Sellers, or other causes
beyond its control whether or not similar to the foregoing.
3.17 ASSIGNMENT
Except as provided in this section, neither party shall assign this
Agreement or any right or interest under this Agreement, nor delegate
any work or obligation to be performed under this Agreement, (an
"assignment") without the other party's prior written consent. Any
attempted assignment in contravention of this shall be void and
ineffective. Nothing in this subsection shall preclude a party from
employing a subcontractor in carrying out its obligations under this
Agreement. A party's use of such subcontractor shall not release the
party from its obligations under this Agreement. In the event Customer
notifies Seller in writing that the use of a specific subcontractor by
Seller is unacceptable to Customer and Customer provides reasonable
justification as to why Seller should not continue using such
subcontractor, Seller shall make every reasonable effort to secure an
acceptable, alternative subcontractor. Notwithstanding the foregoing,
Seller has the right to assign this Agreement and to assign its rights
and delegate its duties under this Agreement, in whole or in part, at
any time and without Customer's consent, to any present or future
subsidiary or "Affiliate" of Seller or to any combination of the
foregoing. Such assignment or delegation shall release Seller from any
further obligation or liability thereon. Seller shall give Customer
prompt written notice of the assignment. In addition, Customer shall
have the right to assign any of its rights and obligations under this
Agreement, upon thirty (30) days written notice to Seller to (i) the
purchaser of 100% of the business or ownership interests of ▇▇.▇▇▇,
(ii) any wholly-owned subsidiary of Customer and (iii) any joint
venture of which Customer or any wholly-owned subsidiary holds a 25% or
greater ownership interest, provided in the case of an assigned
described in clauses (i) and (iii) above; (A) any such party agrees to
be bound in writing to the terms and conditions of this Agreement, (B)
such party's credit standing is at least as favorable as that of
Customer, and (C) such party is not deemed by Seller, in its sole
discretion, to be a direct competitor of Seller's business. If all of
the preceding conditions have not been met, Customer shall have no
right to assign any of its rights hereunder. For the purposes of this
section, the term "Agreement" includes this Agreement, any subordinate
agreement placed under this Agreement, including Attachments, and any
Order placed under this Agreement or subordinate agreement.
3.18 TERMINATION
3.18.1 TERMINATION FOR BREACH
In the event either party is in material breach or default of the terms
of this Agreement and such breach or default continues for a period of
ten (10) days with respect to payment obligations or thirty (30) days
with respect to any other obligations after the receipt of written
notice from the other party, then the party not in breach or default
shall have the right to terminate this Agreement without any charge,
obligation or liability except for Products or Licensed Materials
already delivered and Services already performed. The party not in
breach or default shall provide full cooperation to the other party in
every reasonable way to facilitate the remedy of the breach or default
hereunder within the applicable cure period. Notwithstanding the
foregoing, if the nature of the material breach or default is such that
it is
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
not a payment obligation and it is incapable of cure within the
foregoing thirty (30) day period, then the thirty (30) day cure period
may be extended for a reasonable period of time (in no event to exceed
an additional thirty (30) days), provided that the party in breach or
default is proceeding diligently and in good faith to effectuate a
cure.
3.18.2 TERMINATION FOR OTHER CAUSES
If Customer terminates this Agreement pursuant to Article 2.9, all of
Customer's and Seller's rights and obligations hereunder in respect to
Products, Licensed Materials and Services ordered prior to such
termination shall remain in full force and effect, and Seller's
warranty obligations for Products which have achieved Installation
Complete shall remain in full force and effect.
3.19 INDEPENDENT CONTRACTOR
All work performed by either party under this Agreement shall be
performed as an independent contractor and not as an agent of the
other, and no persons furnished by the performing party shall be
considered the employees or agents of the other.
3.20 RELEASES VOID
Neither party shall require releases or waivers of any personal rights
from representatives or employees of the other in connection with
visits to its premises, nor shall such parties plead such releases or
waivers in any action or proceeding.
3.21 PUBLICITY
Neither party shall issue or release for publication any articles,
advertising, or publicity material relating to Products, Licensed
Materials, or Services under this Agreement or mentioning or implying
the name, trademarks, logos, trade name, service ▇▇▇▇ or other company
identification of the other party or any of its Affiliates or any of
its personnel without the prior written consent of the other party.
3.22 CONFIDENTIALITY OF AGREEMENT
Notwithstanding the obligations contained in Section "Use of
Information" of this Agreement the parties shall keep all provisions of
this Agreement and any order submitted hereunder (including, without
limitation, prices and pricing related information) confidential except
as reasonably necessary for performance by the parties hereunder and
except to the extent disclosure may be required by applicable laws or
regulations, in which latter case, the party required to make such
disclosure shall promptly inform the other prior to such disclosure in
sufficient time to enable such other party to make known any objections
it may have to such disclosure. The disclosing party shall take all
reasonable steps and exercise all reasonable efforts directed by Seller
to secure a protective order, seek confidential treatment, or otherwise
assure that this Agreement and/or any order will be withheld from the
public record.
3.23 EXPORT CONTROL
The parties acknowledge that all Products, Licensed Materials, related
documentation, and technical information (including, but not limited
to, service and training) provided under this Agreement are subject to
U.S. export laws and regulations and any use or transfer of such
Products, Software, related documentation, and technical information
must be authorized under those regulations. Each party agrees that it
will not use, distribute, transfer, or transmit the Products, Software,
related documentation, and technical information (even if incorporated
into other products) except in compliance with US. regulations. If
requested by Seller, Customer also agrees to sign written assurances
and other export-related documents as may be required for Seller to
comply with U.S. export regulations.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
3.24 AMENDMENTS
Any supplement, modification or waiver of any provision of this
Agreement must be in writing and signed by authorized representatives
of both parties.
3.25 SEVERABILITY
If any portion of this Agreement is found to be invalid or
unenforceable, the parties agree that the remaining portions shall
remain in effect. The parties further agree that in the event such
invalid or unenforceable portion is an essential part of this
Agreement, they will immediately begin negotiations for a replacement.
3.26 WAIVER
If either party fails to enforce any right or remedy available under
this Agreement, that failure shall not be construed as a waiver of any
right or remedy with respect to any other breach or failure by the
other party.
3.27 SURVIVAL
The rights and obligations of the parties, which by their nature would
continue beyond the termination cancellation, or expiration of this
Agreement, shall survive such termination, cancellation or expiration.
3.28 SECTION HEADINGS
The section headings in this Agreement are inserted for convenience
only and are not intended to affect the meaning or interpretation of
this Agreement.
3.29 CHOICE OF LAW
The construction and interpretation of, and the rights and obligations
of the parties pursuant to this Agreement, shall be governed by the
laws of the State of New York without regard to its conflict of laws
provision and excluding the United Nations Convention on the Sale of
Goods.
3.30 AMBIGUITIES
The parties represent that they are sophisticated businesses with
access to their own legal, financial and business advisors and that
each party has had the opportunity to consult with advisors of their
own choosing before entering into this Agreement. The parties therefore
acknowledge and agree that the rule of law that ambiguities are
construed against the drafter shall not apply to the interpretation of
this Agreement.
3.31 FACILITIES ACCESS
Each party shall provide the other with reasonable access to its
facilities required in connection with the performance of their
respective obligations under this Agreement. No charge shall be made
for such access. Reasonable prior notification will be given when
access is required. Neither party shall require releases of any
personal rights in connections with visits to its premises.
3.32 TEST-BED LABORATORY
Seller shall provide, at no additional cost to the Customer, one item
or a pair (as applicable) of each of the equipment actually purchased
by Customer necessary for establishment of a test-bed laboratory, which
will include the Products set forth in the Attachments to this
Agreement. The Customer agrees it will not use the test-bed laboratory
for in-revenue service or any purpose other than testing, provided that
Customer may use such test bed laboratory for in-service commercial
testing for a period not to exceed six (6) months.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
In the alternative, at Customer's option, Customer may order equipment
for it's test bed laboratory, which equipment purchase shall be subject
to all applicable terms of this Agreement; provided, however, that (i)
Customer shall have 180 days from the date of invoicing to pay the
applicable purchase price for such equipment, and (ii) Customer may
return (at Customer's cost) any of such equipment for any reason prior
to the end of the applicable 180 day period and shall then have no
obligation to make payment therefor.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ARTICLE IV
PROVISIONS APPLICABLE TO LICENSED MATERIALS
4.1 LICENSE FOR LICENSED MATERIALS
Upon delivery of Licensed Materials pursuant to this Agreement, Seller
grants to Customer a personal, nontransferable, and nonexclusive
license to Use Licensed Materials on a Designated Processor in the
United States for its own business operations. No license is granted to
Customer to Use the Licensed Materials Mexico, Canada and other the
countries covered by the North American Free Trade Agreement or to
sublicense such Licensed Materials furnished by Seller. Customer shall
not reverse engineer, decompile or disassemble Software furnished as
object code to generate corresponding Source Code. Unless otherwise
agreed in writing by Seller, Customer shall not modify Software
furnished by Seller under this Agreement. If the Designated Processor
becomes temporarily inoperative, Customer shall have the right to use
the Licensed Materials temporarily on a backup processor until operable
status is restored and processing on the backup processor is completed.
Customer shall not copy Software embodied in Firmware. Customer shall
not make any copies of any other Licensed Materials except as necessary
in connection with the rights granted hereunder. Customer shall
reproduce and include any Seller copyright and proprietary notice on
all such necessary copies of the Licensed Materials. Customer shall
also ▇▇▇▇ all media containing such copies with a warning that the
Licensed Materials are subject to restrictions contained in an
agreement between Seller and Customer and that such Licensed Materials
are the property of Seller. Customer shall maintain records of the
number and location of all copies of the Licensed Materials. Customer
shall take appropriate action, by instruction, agreement, or otherwise,
with the persons permitted access to the Licensed Materials so as to
enable Customer to satisfy its obligations under this Agreement. If
Customer's license is canceled or terminated, or when the Licensed
Materials are no longer needed by Customer, Customer shall return all
copies of such Licensed Materials to Seller or follow written
disposition instructions provided by Seller.
4.2 CHANGES IN LICENSED MATERIALS
Prior to shipment, Seller at its option may at any time modify the
Specifications relating to its Licensed Materials, provided the
modifications, under normal and proper Use, do not materially adversely
affect the Use, function, or performance of the ordered Licensed
Materials. Unless otherwise agreed in writing, such substitution shall
not result in any additional charges to Customer with respect to
licenses for which Seller has quoted fees to Customer.
4.3 CANCELLATION OF LICENSE
Notwithstanding any other section in this Agreement to the contrary, if
Customer fails to comply with any of the material terms and conditions
of this Agreement with respect to the Use of Licensed Materials, and
such failure is not corrected within thirty (30) days of receipt of
written notice thereof by Customer, Seller, upon written notice to
Customer, may cancel any affected license for Licensed Materials
without further notification.
4.4 OPTIONAL SOFTWARE FEATURES
Software provided to Customer under this Agreement may contain optional
features, which are separately licensed and priced. Customer
understands and agrees that such optional features will not be
activated without written authorization from Seller and Customer's
payment of the appropriate license fees. If, in spite of Customer's
best efforts to comply with this restriction, such features are
activated, Customer agrees to so notify Seller within five (5) business
days from the date of Customer's knowledge that such features were
activated and to pay Seller the
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
current license fees charged by Seller for the activated features, as
well as the reasonable cost of money for the period in which such
features were activated.
4.5 ADDITIONAL RIGHTS IN LICENSED MATERIALS
Upon thirty (30) days advance written notice, Customer may relocate the
Software permanently to a new processor of Customer. This new processor
shall then become the Designated Processor in lieu of the former
Designated Processor.
Customer may retain an archival copy of the Software for as long as
such Software is relevant to Customer's operations.
4.6 INSTALLATION OF SOFTWARE
Where Customer is responsible for Software installation, Seller's sole
responsibility is to deliver the Software to Customer on or before the
scheduled Delivery Date agreed to by Seller. However, if the order
specifies that Seller is responsible for such installation, Seller
shall deliver the Software to Customer in sufficient time for it to be
installed on or before the scheduled Installation Complete Date agreed
to by Seller, and Seller shall complete its installation and associated
testing on or before such date.
Where Customer has assumed responsibility for the installation of newly
licensed Software and in the event that Customer encounters
installation difficulties, at Customer's request, Seller will, at the
standard rate in effect at the time of the request, provide technical
assistance.
4.7 VENDOR ITEM WARRANTY
With respect to Licensed Materials that are Vendor Items, Seller, to
the extent permitted, does hereby assign to Customer the Warranties
given to Seller by its vendor of such vendor items.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ARTICLE V
GENERAL SERVICES PROVISION
5.1 PERSONNEL
In recognition of the fact that Seller may perform similar work from
time to time for others, this Agreement will not prevent Seller from
performing such similar work or restrict Seller's use of any personnel
who may be provided to Customer under this Agreement.
5.2 RELOCATION, MODIFICATION OR IMPROPER USAGE OF SOFTWARE
Seller shall be under no obligation to continue provision of Service
for software under this Agreement if:
(a) The software program(s) has been modified without the prior
written approval of Seller;
(b) The original software program identification marks have been
removed or altered;
(c) The software program(s) is moved from the street address where
it was initially installed without the prior written approval
of Seller;
(d) System software (i.e., core operating system utilities and
libraries, drivers, etc.) are not supported by Seller;
(e) Host computer does not conform to the update level necessary
to support the software or has been modified other than by
Seller personnel, so as not to conform to the specifications
for which the software was designed; or
(f) Customer uses the software program in violation of Customer's
software license and such violation continues for ten (10)
days after Seller delivers notice of such violation to
Customer.
5.3 SERVICES NOT COVERED
Seller will not provides services required to repair damages,
malfunctions, or service failures caused by:
(a) Customer's failure to follow equipment manufacturer's relevant
installation, operation or maintenance instructions;
(b) Failure of a host computer, or other equipment or software not
maintained under this Agreement;
(c) Customer's abuse, misuse or negligent acts;
(d) Power failure or surges, lightning, fire, flood, pest damage,
accident, actions of third parties and other events outside
Seller's reasonable control or not arising under normal
operating conditions; or
(e) Maintenance repair by persons not authorized by Seller.
Seller, however, may agree to perform such maintenance services on a
time and materials basis.
5.4 PERSONNEL & SUBCONTRACTORS
(a) Seller reserves the right to assign, re-assign and substitute
its personnel with personnel having comparable qualifications
at any time during the term of this Agreement, with no
interruption of Customer's services.
(b) During the term of this Agreement, and for a period of one (1)
year from the termination of this Agreement or a Statement of
Work, the parties agree not to employ, make an offer of
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
employment to, or enter into a consulting relationship with
any employee, subcontractor, or consultant of the other party
who is directly involved with the delivery of Services under
this Agreement, except upon the prior written consent of the
affected party.
(c) Seller reserves the right to subcontract any or all of the
Services to third parties and to use independent consultants
provided that (i) the use of subcontractors and/or consultants
will not cause any interruption of Services to Customer, (ii)
such subcontractors and/or consultants have recognized
experience and qualifications in providing the subject
Services, and (iii) if Customer notifies Seller in writing
that a particular subcontractor or consultant should be
removed from providing service for just cause, Seller will
make reasonable efforts to find an acceptable replacement
subcontractor and/or consultant. Services supplied by such
third parties shall be subject to the terms and conditions of
this Agreement as if supplied directly by Seller and Seller
shall be responsible for the Services performed.
(d) Customer's site representative shall exercise no supervision
over any personnel furnished by Seller or any subcontractor,
but Customer's site representative shall be available to
Seller for consultation and advice.
5.5 WORK OR SERVICES PERFORMED BY OTHERS
Work or services performed at the site by Customer or Customer's other
vendors or contractors shall not interfere with Seller's performance of
Services. Seller shall have no responsibility or liability with respect
to such work or services performed by any person other than its
employees, subcontractors, consultants, or other agents. If Customer or
its other vendors or contractors fail to timely complete the site
readiness or if Customer's or its other vendors' or contractors' work
interferes with Seller's performance, the scheduled completion date of
Seller's Services under this Agreement shall be extended as necessary
to compensate for such delay or interference.
5.6 PROVISIONS FOR ENGINEERING AND INSTALLATION SERVICES
5.6.1 SITE REQUIREMENTS
Customer is solely responsible for ensuring that the
installation site is compliant with any reasonable site
requirements identified in writing by Seller for the
installation and/or operation of any Products, Licensed
Materials, or Services furnished by Seller under this
Agreement. Such site requirements may include, without
limitation, those site requirements set forth herein below.
Seller agrees to cooperate with Customer to ensure compliance
with all site requirements, provided that such cooperation
shall not require Seller to incur any out-of-pocket costs
unless the parties expressly agree otherwise in writing.
Customer shall be solely responsible for ensuring that the
installation site complies with all applicable laws, orders,
and regulations of federal, state and local governmental
entities including, without limitation, those relating to
environmental conditions.
Notwithstanding anything contained in this Agreement to the
contrary, Seller shall have no liability to Customer, its
employees, agents, and customers for any delay by Seller in
completion of any installation or other Service to be provided
by Seller under this Agreement if such delay is attributable
to the failure by Customer to comply with any site
requirements or to provide any other items which are the
responsibility of Customer under this Article 5.6.
The site requirements which are solely the Customer's
responsibility may include the following as required by the
conditions of the particular installation or other on site
service at no cost to Seller:
(a) Participate in a joint site survey with Seller
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
(b) Interior Space - Clears ten feet (10') from floor to
bottom of lowest obstruction
(c) Floor Loading (minimum requirements) Structural
Analysis always required
(d) Power Room 150 lb. per sq. ft
(e) Switch Room 100 lb. per sq. ft.
(f) Floor Thickness: In accordance with local seismic
requirements for the equipment
(g) Conduit access to all floors in building
(h) Local exchange carrier cable available
(i) Commercial electrical current
(j) Existing building grounding is 5 ohm or less metered
(k) Battery room ventilation in accordance with local
requirements
(l) Fire suppression system
(m) Freight access for a 48' trailer off loading
equipment.
5.6.2 ADDITIONAL ITEMS TO BE PROVIDED BY CUSTOMER
Customer will also be responsible for furnishing the items described in
this Section 5.6.2 as required by the conditions of the particular
installation or other on-site Service at no cost to Seller and such
items are not included in Seller's price for the Services. Seller shall
have the right to invoice Customer for any out-of-pocket costs or
expenses incurred by Seller as a result of Customer's failure to
provide any of these items described in this Section 5.6.2 and all such
invoices shall be paid by Customer in accordance with this Agreement.
(a) Access to Building and Work Site Customer shall provide
employees of Seller and its subcontractors free access to
premises and facilities at all hours during the scheduled
Service or at such other times as are requested by Seller.
Customer shall obtain for Seller's employees and its
subcontractors' employees any identification and clearance
credentials, which are necessary to enable Seller and its
subcontractors to have access to the work site.
(b) Site Coordination At Seller's request Customer shall
coordinate with Customer's sub contractors, property managers,
Regional ▇▇▇▇ Operating Company, Local Exchange Carrier and
any other parties and tenants having rights to the work site
or whose participation is necessary in order for Seller to
perform the applicable Services.
(c) Environmental Conditions Prior to the Services start date,
Customer shall insure that the applicable premises will be dry
and free from dust and Hazardous Materials, including but not
limited to asbestos, and that the premises are in such
condition as not to be injurious to Seller's or its
subcontractors' employees or to the Products and Licensed
Materials to be installed. Prior to Services start date and
during the performance of the Services, Customer shall, if
requested by Seller, provide Seller with sufficient data to
assist Seller and its subcontractors in evaluating the
environmental conditions at the work site (including without
limitation, the presence of Hazardous Materials). The price
quoted by Seller for Services does not include the cost of
removal or disposal of the Hazardous Materials from the work
site. Customer is responsible for the removal and disposal in
accordance with applicable laws, rules and regulation of the
Hazardous Materials, including but not limited to asbestos,
prior to commencement of Services.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
(d) Sensitive Equipment Prior to the Services start date, Customer
shall inform Seller of the presence of any sensitive equipment
at the work site (e.g., equipment sensitive to static
electricity or light).
(e) Repairs to Buildings Prior to the Services start date,
Customer shall make such alterations and repairs to the work
site as are necessary for proper installation of Products and
Licensed Materials.
(f) Building Readiness Prior to the Services start date, Customer
shall provide extraordinary hauling and hoisting services such
as, rigging or crane services, if applicable, and shall
arrange for traffic control, if necessary for the delivery of
Products.
(g) Openings in Buildings - Customer shall furnish suitable
openings in buildings, including, without limitation,
elevators and windows as needed to allow Products to be placed
in position, and shall provide necessary openings and ducts
for cable and conductors in floors and walls as designated on
engineering drawings furnished by Seller. Customer shall
fireproof (with steel covers and as otherwise required by
applicable laws, rules, regulations, and codes) all unopened
paths throughout such buildings.
(h) Surveys Prior to the Services start date, Customer shall
provide to Seller (and, if requested by Seller, to Seller's
subcontractors) surveys (describing the physical
characteristics, legal limitations, and utility locations for
the work site) and a legal description of the site.
(i) Electrical Current, Heat, Light, and Water Customer shall, in
amounts no less than that ordinarily furnished for similar
purposes in a working office, provide electric power, run all
leads to Seller's power board; provide temperature control and
general illumination (regular and emergency) in rooms in which
services are to be performed or Products stored, provide exit
lights; and provide water and other necessary utilities for
the proper execution of Services.
(j) Building Evacuation Prior to the Services start date, Customer
shall provide building evacuation plans in case of a fire or
other emergency.
(k) Ceiling Inserts Provide ceiling inserts as required using
Seller's standard spacing arrangement for ceiling support
equipment.
(l) Material Furnished by Customer Unless expressly stated to the
contrary, Seller's prices do not include costs for any
Customer furnished material nor do they include any Seller
charges for engineering, installation, modification, or repair
Services relating to Customer furnished material. New or used
material furnished by Customer shall be in such condition that
it requires no repair and no adjustment or test effort in
excess of that normal for new equipment. Customer assumes all
responsibility for the proper functioning of such material.
Customer shall also provide the necessary technical assistance
and information for Seller to properly install such material.
(m) Floor Space and Storage Facilities Customer shall provide, for
the duration of Services, suitable and easily accessible floor
space and storage facilities to permit storing of Products and
other material, tools and other property of Seller and its
subcontractors in close proximity to where they will be used.
Where the Services are to be performed outside of a building
or in a building under construction, Customer shall, in
addition to the above requirements, permit or secure any
necessary permission for Seller and its subcontractors to
maintain at the work site, storage facilities for Products,
material, tools, and equipment needed to complete
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
the Services. As appropriate Customer shall provide Seller's
and its subcontractors' personnel access to toilet facilities.
(n) Easements, Permits, and Rights of Way Customer shall secure
prior to the Services start date and shall maintain for the
duration of the Services all rights-of-way, easements,
licenses, and permits and such other rights and approvals as
are necessary to enable Seller to perform the Services
including, without limitation, all construction and building
permits for work to be performed at the work site and other
areas ancillary to the work site such as sidewalks, streets,
alleys, and highways.
(o) Security Service Customer shall provide such levels of
security as are reasonably necessary to prevent admission of
unauthorized persons to building and other areas where
installation Services are performed and to prevent
unauthorized removal of the Products and other materials.
Seller will inform Customer as to which storage facilities at
the work site Seller will keep locked. To the extent
practicable, such storage facilities will remain closed to
Customer's building surveillance.
(p) Access to Existing Equipment Customer shall permit Seller
reasonable use of such portions of the existing equipment as
are necessary for the proper completion of such tests as
require coordination with existing equipment. Such use shall
not interfere with the Customer's normal maintenance of
equipment.
(q) Grounds Customer shall provide access to suitable and isolated
building ground as required for Seller's standard grounding of
equipment. Where installation is performed outside or in a
building under construction, Customer shall also furnish
lightning protection ground.
(r) Requirements for Customer Designed Circuits Customer shall
furnish information covering the proper test and readjust
requirements for apparatus and shall furnish requirements for
circuit performance associated with circuits designed by
Customer or standard circuits modified by Customer's drawings
such as alarm and environmental circuits.
(s) Cross-Connecting Main Distributing Frames and Installing Heat
Coils Customer shall install such cross-connections and heat
coils as are necessary in connection with the Services.
(t) Clearing Equipment for Modifications Customer shall remove
cross-connections, transfer service on trunks and sundry
working equipment, and make other arrangements required to
permit Seller to modify existing equipment.
(u) In the event the joint site survey conducted by the parties
pursuant to Section 5.6.1(a) determines that the necessary
requirements are not met at the commencement of the
installation of the Products and the Customer needs to arrange
for alterations and/or repairs, the order will be placed on
hold until such time as requirements are met. During such
interval, Seller reserves the right to determine any schedule
and price impacts, to treat such product as ▇▇▇▇ and Hold, or
to cancel such order.
5.6.3 ITEMS TO BE FURNISHED BY SELLER
5.6.3.1 Engineering
General Review Seller will review the following items as
Seller deems appropriate; switching Products (Products and
Software); transmission Products (Products and Software);
power/energy equipment hardware; engineering drawings; site
survey; grounding of the switch; appliance outlets; front and
rear aisle lighting as required;
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
timing cables; distributing frame engineering and equipment;
cable rack and hardware; stanchions; end guards auxiliary
framing; existing cable holes; fiber cable protection systems.
Needs Analysis Seller will perform a needs analysis of the
Telephone Equipment Order (TEO) and the Customer's specified
requirements to determine the equipment solution that meets
those requirements.
Records Upon Installation Complete, Seller will turn over to
Customer a complete set of records. Such records include but
are not limited to wiring lists, front equipment drawings,
assignment drawings, and interface schematics.
5.6.3.2 Installation
Site Survey Prior to the commencement of installation
Services, Seller and Customer will perform a joint site survey
to determine whether the installation site meets the site
requirements referenced in Section 5.6.1 and whether Customer
has provided the items set forth herein. Should Seller
determine that the site does not comply with such site
requirements or that Customer has not provided any item
required under Articles 5.6.1 and 5.6.2, Seller shall specify
such deficiencies to Customer in writing. Seller and Customer
shall jointly agree on a course of action to correct such
deficiencies prior to the start of installation Services.
During the joint site survey, Seller and Customer shall also
jointly agree upon the layouts and arrangements for the
Products and Licensed Materials to be installed. Upon the
start of installation all changes shall be subject to
additional charges.
Method of Procedure Seller shall prepare a detailed Method of
Procedure ("MOP") and review with Customer before starting
work. Customer shall review the MOP prepared by Seller and
shall give Seller written acceptance of the MOP by signing a
copy thereof prior to the Services start date. Any changes to
the MOP requested by Customer shall be agreed upon subject to
the Change Order process.
The MOP shall contain the following details
(a) A concise statement that covers the installation
Services to be performed including the equipment that
will be affected and the hours that such Services are
to be performed;
(b) Specific responsibilities of Seller and Customer;
(c) Service protection procedures that include, general
service protection rules and special service
precautions for the specific project;
(d) A time and release schedule of the work operations
involving working equipment and/or circuits in
service and;
(e) A method of identifying equipment and cabling to
ensure that the circuits are "cleared" before start
of work;
(f) A detailed account of the work operations that the
installer will follow;
(g) The methodology to be used to halt installation
Services if trouble occurs and a general procedure to
correct/resume work operations;
(h) Provide environmental safety concerns, if applicable;
(i) Obtain Customer signature.
Warehousing, Delivery, Receipt & On-site Storage of Equipment,
and General Cleaning Seller will stage the delivery of
Products. Seller's personnel will be on-site at the time the
Products are delivered. Such personnel will accept the
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
Products, unpack for inventory purposes and inspect such
Products for damage. Seller will resolve all shipping errors
inventory discrepancies and damage issues. This function shall
be performed in an area previously designated for the storage
and unpacking of equipment and Product(s). Such area will be
selected based on a location that minimizes movement of
material and personnel through the work site. In the event
storage is limited or inadequate, as determined by Seller,
temporary storage facilities such as trailers or containers
may be required. Any fees associated with the procurement of
temporary storage facilities are not included in Seller's
quoted prices and shall be solely the responsibility of the
Customer. Materials such as plywood or masonite will be
utilized as necessary, to prevent cable reels, iron work and
other heavy objects from damaging floors, walls and doors.
Seller shall perform general cleaning of the equipment and
storage areas (e.g. clearing floors of debris, packing
material, etc.) on a regular basis throughout the installation
period. Rubbish shall be disposed of at Seller's expense and
in compliance with local requirements.
Hardware Assembly Hardware assemblies and overhead cable rack,
iron work and conduit (collectively "Components") will be
delivered for specific bays and cabinets as identified in the
firm price quote provided or in the Statement of Work. Unless
included in the applicable SOW, additions of these components
to provide access to other locations (i.e. power rooms,
computer rooms, distributing frames not located with Products,
or Products located on separate floors) will be specifically
excluded from the installation Services. Such additions will
only be included in the installation Services for an
additional charge. Seller will place and secure all ordered
Products in the location specified in the engineering
specifications. Such activity includes but is not limited to:
(a) ▇▇▇▇ and drill floors
(b) Assemble and place floor mounted Products
(c) Assemble distribution frames
(d) Erect frames
(e) Align and junction frames
(f) Install end guards and covers
(g) Assemble and install fiber protection ductwork
(h) Mount units and apparatus
(i) Place batteries
(j) Seller will also erect supporting hardware compatible
with purchased Products. Such activity includes but
is not limited to
(k) Fabricate and install cable racks, bars, rod or
stations as identified in the Statement of Work
(l) Erect ladder rack and ladders
(m) Open and close existing cable holes and slots. Any
new cable holes to facilitate Product(s) design are
the responsibility of the Customer
(n) Fabricate and install framing aisle lighting conduit
and fittings
(o) In addition, Seller will place and designate
connecting appliances (MDF terminal blocks, DSX
panels, etc.) provided with order. Such as but not
limited to
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
(p) Stamp and/or affix aisle, shelf and unit designations
(q) Mount and stencil terminal strips
Seller will also extend lighting, AC circuits and grounding to
include added Products if Products are ordered in Statement of
Work. Such activities include but are not limited to:
(a) Assemble and install lighting fixtures
(b) Install switches and receptacles
Cable and Wire For cable and wire to be installed by Seller,
Seller will run, tag, and secure metallic and fiber optic
cables in an unobstructed environment a maximum of one hundred
(100) feet and power cables a maximum of fifty (50) feet for
the Products and apparatus (this specifically excludes primary
power cables, except on power equipment orders) identified in
the Product order or Statement of Work. Seller will wire,
attach, terminate and affix all cable and wire including fiber
optic cables supplied with purchased Products. This may
include but is not limited to mechanical wire wrapping,
soldering, crimping, plugging in of pre-terminated cables or
polishing of fiber optics for purchased Product. Seller will
run alarm cabling, terminate and test for the identified
equipment including Customer provided environmental scan
points of fire detection and door entry which are less than
fifty (50) feet away and pre-terminated. Seller will verify
all copper wiring placed by the Seller for continuity to
detect and analyze opens, shorts, reversals, and incorrect
wiring. Where pairs, quads or groupings are indicated, the
grouping will be verified. Seller will ensure the
functionality and integrity of all fiber directly associated
with the installed Products and the fiber optic cables
installed by Seller within the building structure. Seller will
"Dress" all cabling and wiring and provide physical
protection. Seller will properly protect cables at all
"break-off" locations, such as the vertical turns from the
overhead cable rack to bay frame work.
Testing Specific test procedures are dependent upon the type
of Product installed and are identified in the installation
guide for the particular Product. To ensure that technical
design and performance criteria are being met, testing shall
be performed by Seller to obtain an evaluation of the
functional, operational, electrical and mechanical integrity
of all Products installed by Seller. In general the following
tests are required for all Product types furnished and
installed by Seller: Seller's activities associated with
testing will include, but not be limited to the following:
(a) Turn on and verify power to installed Products
(b) Load product software and default parameters required
to conduct local unit loop-back testing to
demarcation points.
(c) Run and connect test specific cross-connects. Remove
upon completion of test(s).
(d) Perform all unit and system-level tests to ensure
Products pass system and technician evoked
diagnostics
(e) Test functionality of circuit packs required by job,
at time of original installation, within the
installed unit. Testing of spares is specifically
excluded and will be included only for an additional
charge.
(f) Test functionality and integrity of Seller installed
local alarms.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
(g) Resolve troubles encountered with Products purchased
on order. Refer to Customer any trouble found in
Customer provided equipment.
(h) Maintain test logs and trouble reports and turn over
to Customer.
(i) Seller will perform the following Turnover procedures
for all installation Services provided by Seller
(j) Inform Customer of completion of installation cycle.
(k) Provide Customer with all drawings, invoices, logs
and test results per the contract.
(l) Remove from Customer premises tools and scrap
generated from installation effort.
(m) Issue job completion notice to Customer.
5.7 PROVISIONS FOR PROFESSIONAL SERVICES
5.7.1 SCOPE
Services to be provided hereunder are set forth in the Professional
Consulting Services Agreement and Statement of Work, which are attached
to and incorporated herein as Attachment F. Seller and Customer may
enter into additional Professional Services Agreements and Statements
of Work, and, if so, each will be automatically incorporated into this
Agreement upon signature by an authorized representative of each party
without further amendment. Statements of Work shall be in writing and
properly attached to this Agreement.
5.7.2 DEFINITIONS
For the purpose of this Section 5.7.2, the following definitions will
apply:
CALL-OUT SERVICES: a) When requested by Customer, services are
provided on an availability basis at the then-current Call-Out
Hourly Rate for time and materials plus incurred travel and
living expenses for dispatches over fifty (50) miles; b)
Hourly Rates are measured from the start of remote diagnostic
assistance, or from time of dispatch until return to point of
dispatch; c) Prevailing minimum billing requirements apply.
CONSULTATION SERVICES: Diagnostic assistance provided from
product or system specialists. Charges for Consultation
Services are billed at the then-current Consultation Service
Hourly Rate for time and materials or upon payment of an
annual subscription fee. Charges will be: a) one hour minimum
for remote diagnostics (voice or modem) and b) eight hours
minimum plus incurred travel and living expenses for on-site
visitation.
OUT-OF-COVERAGE HOURS SERVICE: a) Maintenance services
rendered to Customers outside of the coverage period. Such
services will be provided on an availability basis at the
then-current Out-of-Coverage Hour Rate for time and materials,
plus incurred travel and living expenses for dispatches over
fifty (50) miles; b) Hourly Rates are measured from start of
remote diagnostic assistance or from time of dispatch until
return to point of dispatch; c) Prevailing minimum billing
requirements apply.
5.7.3 CUSTOMER'S RESPONSIBILITIES
Throughout the term of this Agreement Customer agrees to:
(a) Follow all Seller's or other relevant equipment manufacturer's
applicable installation, operation, administration, and
maintenance instructions;
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
(b) Provide the environment, electrical, and telecommunications
connections as specified by Seller or relevant equipment
manufacturer;
(c) Provide reasonable access to the equipment to enable Seller to
perform maintenance;
(d) Provide adequate communications facilities, workspace, and
storage space for Seller spare parts;
(e) Have their representative at the equipment location during any
Seller service activity on the premises;
(f) Maintain a procedure external to the software program(s) and
host computer for reconstruction of lost or altered files,
data or programs to the extent deemed necessary by the
Customer;
(g) Provide test equipment and maintenance documentation
sufficient for maintenance of other than Seller products that
are listed in this Agreement; and
(h) Assure that work done at the site by Customer or by others
shall not interfere with Seller's performance of Services.
5.7.5 HAZARDOUS MATERIALS/CONDITIONS
The Customer has the responsibility to inform, identify, correct, ▇▇▇▇,
monitor, remove, and/or dispose of any hazardous materials or
conditions that might interfere with the provision of Service prior to
start of Service. If hazardous materials or conditions are found to
affect provision of Services, work stoppage or delay will occur until
the site is no longer injurious to Seller's employees. Seller's sole
remedy for Customer's failure to comply with this Article 5.7.5 is
limited to (a) reimbursement for additional work effort or expenses
incurred, and (b) relief from liability for any delay or failure to
perform a service to the extent such delay or failure is caused by the
presence of hazardous materials or related conditions.
ARTICLE VI
PROJECT MANAGEMENT
6.1 SCOPE
The parties will each appoint a project management representative(s) to
be responsible for initiating Work, coordinating all such Work,
controlling, monitoring and progressing the Work to an acceptable
conclusion, including the arrangement of any agreed upon review
meetings, and communicating and cooperating with each other in all
matters pertaining to the progress of the Work. The Project Managers
shall also be responsible for ensuring that the Work progresses in
accordance with the SOW and any schedules incorporated therein.
6.2 SELLER PROJECT MANAGEMENT
Seller will provide project management as mutually agreed by the
parties.
6.3 CUSTOMER PROJECT MANAGEMENT
Customer will provide project management as mutually agreed by the
parties.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ARTICLE VII
WARRANTY
7.1 NETWORK ELEMENTS
Seller warrants to Customer only, that during the applicable warranty
period specified below or in the applicable Attachment: (i) Products
(exclusive of Software) will be free from defects in material and
workmanship and will conform to Seller's Specifications for such
Products; (ii) Software licensed by Seller to Customer will be free
from those defects which materially affect performance in accordance
with Seller's Specifications
The warranty period for Products, unless otherwise stated in the
applicable Attachment, and the associated Software (basic software
acquired with the product that enables it to function) is twelve (12)
months and for all other Software is for a period of three (3) months
commencing on date of shipment or, if installed by Seller the earliest
of either: (i) Installation Complete or (ii) the date Customer first
puts Products and/or Licensed Materials into commercial service. For
▇▇▇▇ and Hold Products the warranty will commence upon the date of
stocking at Seller's facility or Customer's designated location. The
warranty period for any Product (or part thereof) repaired or replaced
under this section is the unexpired portion of the repaired or replaced
Product warranty period or three (3) months, whichever is longer.
If, under normal and proper use, a defect or non-conformity appears in
Products (other than Vendor Items) or Software during the applicable
warranty period and Customer promptly notifies Seller in writing of
such defect or non-conformance and follows Seller's instructions
regarding return of defective or non-conforming Product or Software,
Seller, at its option, will either promptly repair, replace or correct
the same without charge at its manufacturing or repair facility or if
Seller is unable to repair, replace or correct the defect, provide a
refund or credit (at Customer's option) based on the original purchase
price or license fee. No Product or Software will be accepted for
repair or replacement without the written authorization of and in
accordance with instructions of Seller. Removal and reinstallation
expenses as well as transportation expenses associated with returning
Product (other than fiber optic cable) and Software as well as
transportation expenses associated with returning such Product or
Software to Seller shall be borne by Customer (other than in respect of
defective fiber optic cable). In the event that it is determined that
the returned Product or Software is defective, Seller shall (i)
reimburse Customer the cost of transportation and Customer's
out-of-pocket costs of removal and reinstallation of the defective
Product or Software and (ii) pay the costs of transportation. If it is
determined that any returned Product (other than fiber optic cable) or
Software is not defective, Customer shall reimburse all of Seller's
out-of-pocket costs of handling, inspecting, testing and transportation
and, if applicable, travel and related expenses incurred in respect of
such returned Product or Software.
With respect to defective fiber optic cable purchased under this
Agreement, the following will apply:
(a) For any single defect (at a single location) in any
segment of fiber (defined as the length of fiber between two splice
points)(a "Fiber Segment") determined by the mutual agreement of
Customer and Seller to be a manufacturing or product defect, Customer
and Seller shall seek to promptly repair such defect by means of a
splice; provided that a splice shall not be deemed a suitable remedy in
the event that such a splice would adversely impact the performance
specifications of such Fiber Segment. Seller agrees to reimburse
Customer (with a credit for the future purchase of Seller's Products)
its out-of-pocket expenses (up to
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
$20,000) of transportation, repair and reinstallation associated with
each such individual defect.
(b) For multiple defects in any Fiber Segment or in the case
described in paragraph (a) above where a splice is not a suitable
remedy and Customer and Seller have mutually agreed that such defect is
a manufacturing or product defect, Customer may require Seller to
promptly replace the entire length of fiber optic cable constituting
such Fiber Segment at no cost to Customer. All transportation costs
associated with the return and replacement of the defective fiber optic
cable shall be borne by Seller. In addition, Seller shall provide
Customer with a credit for the future purchase of Seller's Products
equal to the amount of out-of-pocket expenses incurred by Customer
associated with the removal and reinstallation of the replacement fiber
optic cable, which shall not exceed 25% of the actual purchase price
paid by Customer for the replaced fiber optic cable.
In repairing or replacing any Product (other than fiber optic cable) or
part of Product (other than fiber optic cable) under this warranty,
Seller may use either new, remanufactured, reconditioned, refurbished
or functionally equivalent Products or parts. Replaced Products or
parts shall become Seller's property.
With respect to Products (other than Vendor Items), which Seller has
ascertained are not readily returnable for repair, Seller, at its
option, may elect to repair or replace the Products at Customer's site.
Customer, at its expense, shall make the Products accessible for repair
or replacement and shall restore the site after Seller has completed
its repairs or replacement.
7.2 SERVICES
Seller agrees to perform Services in a workmanlike manner and in
accordance with good usage and industry standards using material free
from defects except where such material is provided by Customer. If
Services performed by Seller prove not to have been so performed, and
if Customer notifies Seller to that effect within a thirty (30) day
period commencing on the date of completion of the service, Seller, at
its option, will promptly correct any defects and deficiencies or if
Seller is unable to make such correction, render a full or pro-rated
refund or credit (at Customer's option) based on the original charge
for the Service.
If engineering or installation Services only prove not to be performed
as warranted within a three (3) month period commencing on the date of
completion of the Services, Seller, at its option, either will correct
the defect or non-conforming Services or render a full or pro-rated
refund or credit (at Customer's option) based on the original charges
for the Services.
7.3 NETWORK
The Network Elements, if readied in accordance with the terms,
conditions, and Specifications of this Agreement and all Attachments,
and upon the satisfaction of any required deliverables by Seller and
Customer specified in Attachments to this Agreement, will operate as an
integrated network upon completion of all applicable testing for each
span between designated locations. A span consists of any two remote op
amp terminal sites, and/or regional sites, and/or terminal sites,
connected by a continuous segment of fiber optic cable. All spans also
will collectively operate as an integrated network. This warranty shall
not apply to the extent that claims arise due to the following: (i)
Network Elements are installed by a third party not authorized or
certified by Seller, (ii) Customer fails to take appropriate action(s)
as prescribed by Seller during the term of this Agreement, (iii) Vendor
items or licensed materials not provided by Seller are defective, (iv)
services not provided by
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
Seller are not performed as warranted or fail to perform. The
provisions of section 7.1 will supersede the provisions of Section 7.3
as applicable to individual Seller provided Products.
In the event that the Network does not operate as warranted in this
Section 7.3, Seller will promptly take such steps, without charge to
Customer, as may be necessary to achieve Network integration.
7.4 BACKWARDS COMPATABILITY
In addition to the warranties contained elsewhere in the Article VII,
the Seller represents and warrants that each version of Licensed
Materials will be Backwards Compatible with all existing in-Service
Seller Provided Products and Software. In the event that Licensed
Materials supplied by Seller does not provide Backwards Compatibility
during the Term of this Agreement, then the Seller will provide,
without charge to the Customer, the most current version of the
Licensed Materials, and otherwise promptly take such steps as may be
necessary to achieve Backwards Compatibility. The Customer will be
responsible for the cost of any additional equipment necessary to
accommodate additional capacity, memory or processing necessitated by
any new version of Licensed Materials.
7.5 YEAR ▇▇▇▇ ▇▇▇▇▇▇▇▇
(a) Seller represents and warrants that during the period beginning on
the warranty start date and for the warranty periods set forth in
Section 7.1, but in no event ending prior to December 31, 2001, any
Seller Provided Products and Licensed Materials delivered by the Seller
to the Customer under this Contract will:
(i) accurately and fully record, store, present and process
calendar dates falling on or after January 1, 2000, with substantially
the same functionality as such products record, store, present and
process calendar dates falling on or before December 31, 1999; and
(ii) provide substantially the same functionality with respect
to the introduction of data containing dates falling on or after
January 1, 2000, as it provides with respect to the introduction of
data containing dates falling on or before December 31, 1999. All of
the foregoing functionality in this paragraph (a) shall be known as
"Year 2000 Capable."
(b) When Customer purchases more than one version of software, if they
are intended by Seller to interoperate, all such versions of Software
will be compatible and interoperate in such manner as to process
between them, as applicable, date related data correctly as described
in paragraph (a) above.
(c) The foregoing sets forth an additional warranty for Seller's
Licensed Materials. The failure of the Products and Software to meet
the foregoing requirements during the warranty period set forth in
section 7.1 entitles Customer to the remedies set forth therein.
(d) Nothing in the foregoing shall be deemed to make Seller responsible
for the Year 2000 capability of any Software constituting Vendor Items
interoperating or intending to operate with Seller's Software. Customer
and/or the manufacturer of other supplier of such third
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
party Software shall be responsible for any Year 2000 compliance and
assuring the ability of such Vendor Item Software to successfully
operate while interoperating with Seller's Software.
7.6 BANDWIDTH ASSURANCE
Seller warrants that a combination of its WaveStar OLS 400G product
connected to Seller's True Wave Reduced Slope Fiber product will
provide 400 GB/sec of capacity (the "Bandwidth Assurance"). If Customer
purchases the above products (Products) and deploys the Products in
accord with Seller's specifications and the Products fail to provide
the Bandwidth Assurance, Seller shall promptly take all reasonable
measures necessary to resolve the problem, including making any
necessary repairs, replacing or adding Products, at no charge to
Customer. Seller shall have no obligation for any failure to comply
with the above warranty related to the use or failure of products,
licensed materials or services which are not Seller provided Products,
Licensed Materials or Services.
Seller warrants that the WaveStar OLS platform will evolve to deliver
the additional capacity as set forth in the following table:
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
------------------------------------------------------------------------------------------------
Transmission Rate per Wavelength Count and Bit Rate Optical Band Availability Dates
Fiber
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
400 Gb/s 80 Channels @ 2.5 Gb/s L Band 4Q01
40 Channels @ 10 Gb/s
------------------------------------------------------------------------------------------------
800 Gb/s 160 Channels @ 2.5 Gb/s C + L Band 4Q01
80 Channels @ 10 Gb/s
------------------------------------------------------------------------------------------------
1.6 Tb/s 40 Channels @ 40 Gb/s C Band 4Q02
------------------------------------------------------------------------------------------------
3.2 Tb/s 160 Channels @ 10 Gb/s C + L Band 4Q03
80 Channels @ 40 Gb/s
------------------------------------------------------------------------------------------------
The C Band system amplifier is designed with intrinsic WDM components
that combine and split C and L band signals. This design allows
in-service upgrades from the C Band (400 Gb/s) to the C + L Band (800
Gb/s).
If Lucent fails to deliver the WaveStar OLS products providing the
additional bandwidth within six (6) months of the quoted availability
dates and provided Customer's then in service system is fully utilized
(i.e., 400 Gb/s, 800 Gb/s, 1.6 Tb/s, 3.2 Tb/s, as the case may be)
Seller shall promptly take all reasonable measures to resolve the
problem and to provide the additional bandwidth at a price no more than
1.75 times the price of the then currently installed product.
Seller also agrees that Customer will pay no more than 1.75 times the
price of the then currently installed WaveStar product for the
succeeding version of the WaveStar product. For example, Customer's
price for the WaveStar 800 Gb/s will not be more than 1.75 times
greater than the price for the WaveStar 400 Gb/s. Similarly, Customer's
price for the 1.6 Tb/s WaveStar will not be more than 1.75 times
greater than the price for the WaveStar 800 Gb/s.
In addition to the foregoing, Seller and Customer agree to staff the
Bandwidth Evaluation Teams pursuant to Exhibit A.
7.7 DISCLAIMER
The foregoing warranties will not extend to defective conditions or
non-conformities resulting from Customer's modifications, misuse,
neglect, accident or abuse; improper wiring, repairing, splicing,
alteration, installation, storage or maintenance; use in a manner not
in accordance with Seller's or its vendor's Specifications, or
operating instructions or failure of Customer to apply previously
applicable Seller's modifications or corrections. In addition, Seller
makes no warranty with respect to Products which have had their serial
numbers or month and year of manufacture removed, altered and with
respect to expendable items, including, without limitation, fuses,
light bulbs, motor brushes and the like. No warranty is made that
Software
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
will run uninterrupted or error free, and in addition Seller makes no
warranty with respect to defects related to Customer's data base
errors.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER'S
SOLE AND EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO REPAIR,
REPLACE, CREDIT, OR REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
ARTICLE VIII
GENERAL ASSURANCE
In the event that this Agreement does not address any particular terms,
the parties agree to negotiate in good faith to reach an agreement on
such terms, but such terms shall be no less favorable to Customer than
comparable terms offered by Seller to any similarly situated customer
on the date of this Agreement or in the future. Upon the written
request of Customer, Seller shall provide Customer with any such terms,
without identifying the specific customer.
ARTICLE IX
ATTACHMENTS
All Attachments to this Agreement are incorporated herein by reference
and constitute a part of this Agreement. Any additional Attachments
agreed upon by the Parties subsequent to the Effective Date, and any
Amendments to this Agreement, shall also be incorporated herein by
reference to this Agreement.
ARTICLE X
COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
an original, but both of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof,
each signed by less than all, but together signed by all, of the
parties hereto.
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY
ARTICLE XI
ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all
prior oral or written understandings between the parties with respect
to the subject matter thereof and constitute the entire agreement
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives on the date(s)
indicated.
--------------------------------------------------------------------------------
▇▇.▇▇▇, LLC. LUCENT TECHNOLOGIES INC.
--------------------------------------------------------------------------------
By: By:
--------------------------------------------------------------------------------
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Title: Chairman & CEO Title: Sales V.P.
--------------------------------------------------------------------------------
Date: August 6, 1999 Date: August 6, 1999
--------------------------------------------------------------------------------
LUCENT TECHNOLOGIES/▇▇.▇▇▇ PROPRIETARY