1
EX. 10.12
AGREEMENT NO. C971312BC002
PRODUCT PURCHASE AGREEMENT
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
WORLD WIDE TECHNOLOGY, INC.
CONTRACT MANAGER: ▇▇▇▇▇ ▇▇▇▇▇▇, C.P.M.
CONFIDENTIAL
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
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TABLE OF CONTENTS
PAGE
1. PARTIES......................................................................................................1
2. TERM.........................................................................................................1
3. PURCHASE AND DISTRIBUTION OF PRODUCT.........................................................................1
4. SOFTWARE LICENSE.............................................................................................2
5. CENTURY COMPLIANCE...........................................................................................3
*Confidential treatment will be requested
7. PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT...................................................................................................4
8. BILLING AND PAYMENT TERMS....................................................................................5
*Confidential treatment will be requested
*Confidential treatment will be requested
11. RECORDS AND REPORTS..........................................................................................6
12. BAR CODING...................................................................................................6
13. ELECTRONIC DATA INTERCHANGE..................................................................................6
14. PRECEDENCE OF DOCUMENTS......................................................................................6
15. DELIVERY.....................................................................................................7
16. PACKAGING....................................................................................................8
17. ▇▇▇▇ OF SALE.................................................................................................8
18. INSPECTION AND ACCEPTANCE....................................................................................9
19. PRODUCT STANDARDIZATION......................................................................................9
*Confidential treatment will be requested
21. TRADEMARK LICENSE............................................................................................9
22. INFRINGEMENT................................................................................................10
23. CONFIDENTIAL INFORMATION....................................................................................10
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24. PUBLICITY AND DISCLOSURE....................................................................................12
25. COMPLIANCE WITH LAWS........................................................................................13
26. FORCE MAJEURE...............................................................................................14
27. ASSIGNMENT..................................................................................................14
28. TAXES.......................................................................................................15
29. PLANT AND WORK RULES AND RIGHT OF ACCESS....................................................................15
30. INDEMNIFICATION AND INSURANCE...............................................................................16
31. RELATIONSHIP OF PARTIES.....................................................................................17
32. TOXIC SUBSTANCES AND HAZARDOUS PRODUCT......................................................................17
33. TERMINATION.................................................................................................17
34. DISPUTE RESOLUTION..........................................................................................18
35. NOTICES.....................................................................................................19
36. LABOR SERVICES..............................................................................................20
37. NONWAIVER...................................................................................................21
38. SEVERABILITY................................................................................................21
39. SECTION HEADINGS............................................................................................21
40. SURVIVAL OF OBLIGATIONS.....................................................................................21
41. CHOICE OF LAW AND JURISDICTION..............................................................................21
42. ENTIRE AGREEMENT............................................................................................21
SIGNATURES
EXHIBIT A: GTE AFFILIATED ENTITIES
EXHIBIT B:
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EXHIBIT C: BAR CODING
EXHIBIT D: EDI PURCHASE ORDERS
EXHIBIT E: SHIPPING AND CARRIER ROUTING INSTRUCTION
EXHIBIT F: PRODUCT DELIVERY INTERVAL
EXHIBIT G: STANDARDIZATION POLICIES, PROCEDURES AND TERMS
EXHIBIT H: [*Confidential treatment requested].
EXHIBIT I: CENTURY COMPLIANCE
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PRODUCT PURCHASE AGREEMENT
1. PARTIES
(a) This Product Purchase Agreement (Agreement) is made between World
Wide Technology, Inc., a Missouri corporation, with offices at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (SELLER) and GTE
Communication Systems Corporation, a Delaware corporation, acting
through its GTE Supply Division, with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, for the benefit of itself and the GTE
affiliated entities (AFFILIATES) listed in Exhibit A (CUSTOMER),
which may be changed by CUSTOMER upon written notice to SELLER.
(b) CUSTOMER or AFFILIATES may purchase SELLER's products (PRODUCT),
[*Confidential treatment requested], on a nonexclusive basis from
SELLER on the same terms and conditions as CUSTOMER and an
AFFILIATE shall also be a CUSTOMER under this Agreement.
2. TERM
This Agreement shall be effective on November 1, 1997, and shall
continue for a period of five (5) years unless earlier terminated or
modified. This Agreement shall be automatically terminated unless
renewed by CUSTOMER with at least thirty (30) days' written notice to
SELLER before the expiration of the term.
3. PURCHASE AND DISTRIBUTION OF PRODUCT
(a) This Agreement does not by itself order any PRODUCT. CUSTOMER
shall order PRODUCT by submitting a purchase order to SELLER in
accordance with Section 7, PURCHASE ORDERS; CANCELLATION OF
PURCHASE ORDERS; REVOCATION OF ACKNOWLEDGEMENT and Section 13,
ELECTRONIC DATA INTERCHANGE. If a purchase order submitted by
CUSTOMER to SELLER (i) conforms to the requirements of Section 7,
PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT and Section 13, ELECTRONIC DATA INTERCHANGE, (ii)
CONTAINS A PRODUCT or within the guidelines for PRODUCT quantities
and for the price or prices specified in [*Confidential treatment
requested] and (iii) does not purport to make a material change
to any of the terms of this Agreement applicable to such PRODUCT
purchase order (including a material change in the items
enumerated in Section 14.(a)(i-x)), SELLER shall be obligated to
acknowledge the purchase order within ten (10) days of receipt,
without conditioning such acknowledgement on the acceptance by
CUSTOMER of any terms inconsistent with or in addition to those
set forth in this Agreement. Upon acknowledgement, a purchase
order and the related acknowledgement shall constitute a binding
contract for the purchase and sale of the applicable PRODUCT
governed by the provisions of this Agreement, as such provisions
may be modified as provided herein. Under special circumstances,
PRODUCT may be purchased pursuant to the terms of this Agreement
at prices quoted by SELLER in response to a specific request from
CUSTOMER.
CONFIDENTIAL
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(b) CUSTOMER may purchase the PRODUCT for its own use or for resale.
(c) This Agreement is nonexclusive and shall not be construed to (i)
require CUSTOMER to purchase any specific amount of PRODUCT, or
(ii) require CUSTOMER to sell any, all or a portion of PRODUCT it
orders, or (iii) unless otherwise specified in this Agreement,
restrict the purchase, resale and/or distribution of PRODUCT to
any geographic area.
4. SOFTWARE LICENSE
If the PRODUCT includes software, SELLER grants to CUSTOMER a license
under the following terms:
(a) Definitions
(1) The term "Software" means any Software programs, in
source, object, or other form, including firmware and
documentation [*Confidential treatment requested],
or identified in a purchase order.
(2) The term "Use" shall mean: (i) the reading by any
authorized users into or out of computer hardware memory
of the Software and the execution of the Software whether
in whole or in part by any individual having authorized
access to any computer on which the Software is operated
and shall include employees of CUSTOMER, its agents, or
contractors and/or in the case of CUSTOMER providing
services to third parties, the third parties' employees,
agents, or contractors; (ii) to transfer into, and store
in, equipment selected by the CUSTOMER all or any portion
of the Software; (iii) to compile and decompile, assemble
or disassemble, or otherwise transform the Software form
source, object or other form into source, object or other
form; (iv) and to process and execute instructions,
statements and data included in, or input to, the
Software.
(3) The Term "Specifications" shall mean specifications for
the Software as set forth in a purchase order, as well as
SELLER's then current published specifications and user
documentation for the Software.
(b) The term PRODUCT includes any Software (operating program in
machine readable form and feature descriptions or firmware)
furnished with or embedded in PRODUCT. Title to such Software
shall remain with manufacturer. SELLER warrants that manufacturer
has granted to SELLER a nonexclusive, nontransferable license to
grant a nonexclusive, nontransferable sublicense to CUSTOMER of
SELLER and to any subsequent purchaser, assignee or lessee from
such CUSTOMER of the PRODUCT in which or with which such Software
is furnished. For the life or purchased PRODUCT, or during the
term PRODUCT is leased, as applicable, SELLER grants to CUSTOMER
and any subsequent purchaser, assignee, or lessee of said PRODUCT
a nonexclusive license to use said Software in connection with
PRODUCT with which it is delivered. CUSTOMER and any subsequent
purchaser, assignee, or lessee may copy the Software for use on
such PRODUCT with which it was originally delivered for archival
purposes or on an
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alternate PRODUCT for disaster recovery purposes, as applicable,
but shall not otherwise knowingly reproduce the original Software
or make copies of the Software for distribution to others.
CUSTOMER and any subsequent purchaser, assignee or lessee may add
to, delete from or modify the Software, in any manner, but no
changes, however extensive, shall alter manufacturer's title to
such original Software. Title to any such modification or addition
to the Software shall remain in the entity which creates the
modification or addition.
(c) The price set forth in a purchase order under this Agreement or in
an Exhibit attached includes the fee for the Software furnished
and the license granted.
(d) Additional SOFTWARE LICENSE responsibilities and obligations of
the manufacturer(s) of PRODUCT(s) are contained in EXHIBIT H.
5. CENTURY COMPLIANCE
SELLER agrees to comply with the provisions set forth in Exhibit I,
CENTURY COMPLIANCE.
*Confidential treatment will be requested
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[*Confidential treatment requested].
7. PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS; REVOCATION OF
ACKNOWLEDGEMENT
(a) A purchase order means an order, form, memorandum, written
communication and/or electronic transmission that CUSTOMER may
deliver to SELLER for the purchase of PRODUCT. The following
information shall be contained in the purchase order:
(1) Description of PRODUCT, including any numerical
alphabetical identification, including SELLER's part
number, referenced in the price list herein;
(2) Requested delivery date;
(3) Applicable price;
(4) Location to which the PRODUCT is to be shipped;
(5) Location to which invoices shall be rendered for payment;
(6) CUSTOMER's purchase order number;
(7) Configurations (if applicable);
(8) Delivery requirements; and
(9) A reference to any applicable quotation given by SELLER to
CUSTOMER. SELLER shall acknowledge purchase orders within
ten (10) days of receipt of the purchase orders.
(b) Purchase orders may be mailed, sent by facsimile transmission or
electronic data interchange in accordance with Section 13,
ELECTRONIC DATA INTERCHANGE.
(c) SELLER may enforce each purchase order only against the AFFILIATE
that has submitted the purchase order.
(d) If an AFFILIATE shall be in material breach or default of this
Agreement, including, but not limited to, timely payment for
PRODUCT purchased and such breach shall continue for a period of
thirty (30) days after CUSTOMER's receipt of SELLER's written
notice, then, in addition to all other rights and remedies of law
or equity or otherwise, SELLER shall have the right to suspend
delivery of PRODUCT on outstanding purchase orders or revoke
existing acknowledgements only with
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respect to the AFFILIATE. Default by an AFFILIATE shall not affect
any other AFFILIATE party to this Agreement.
(e) If SELLER shall be in material breach or default of this
Agreement, and such breach shall continue for a period of thirty
(30) days after SELLER's receipt of CUSTOMER's written notice
thereof, then, in addition to all other rights and remedies of law
or equality or otherwise, CUSTOMER shall have the right to
immediately cancel all applicable purchase orders without any
obligation or liability to SELLER for said cancellation. However,
if SELLER fails to tender delivery of PRODUCT on or before the
ship date stated on SELLER's acknowledgment, then CUSTOMER shall
have the right to immediately cancel all applicable purchase
orders without further obligation or liability to SELLER for said
cancellation or any obligation to provide SELLER a time period to
cure said breach.
8. BILLING AND PAYMENT TERMS
(a) SELLER shall invoice CUSTOMER for each shipment made or service
rendered (unless another address is specified in writing by
CUSTOMER), at the address listed on CUSTOMER's purchase order.
Invoices shall include, but not be limited to: (i) purchase order
number; (ii) purchase order line number; (iii) PRODUCT
identification number; (iv) ship to address; (v) quantity shipped
and billed; (vi) net invoice amount; (vii) net unit cost; and
(viii) any special instructions requested by CUSTOMER.
(b) Payment shall be due thirty (30) days from the date of receipt of
goods or receipt of SELLER's invoice, whichever occurs later, or
if the performance of service is required, the completion and
acceptance of such services by CUSTOMER.
*Confidential treatment will be requested
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11. RECORDS AND REPORTS
(a) SELLER shall maintain complete and accurate records of all
invoices, all amounts billable to and payments made by CUSTOMER,
in accordance with generally accepted accounting practices. SELLER
shall retain and make available upon request such records for a
period of three (3) years from the date of final shipment of
PRODUCT or rendering of services covered by this Agreement.
(b) When requested by CUSTOMER, SELLER shall, for purchase orders
placed directly with SELLER by an AFFILIATE (other than GTE
Supply), provide CUSTOMER a quarterly purchase report by ordering
location, listing PRODUCT purchased under this Agreement,
description, part number, quantities shipped, associated net
prices and certification of Women and Minority Owned Business
Enterprise (WMBE) or Minority Owned Business Enterprise (MBE), if
requested. CUSTOMER shall specify the address for this report.
(c) When requested by SELLER, CUSTOMER shall, for resale purchase
orders shipped from GTE Supply's inventory, provide SELLER, at the
address referenced in Section 35, NOTICES, a monthly report
(point-of-sale) by customer, listing PRODUCT shipped, part number,
description, quantities shipped and associated net prices.
12. BAR CODING
SELLER agrees to participate with CUSTOMER in the development of a bar
coding program in accordance with GTE standard set forth in Exhibit C.
13. ELECTRONIC DATA INTERCHANGE
SELLER agrees to participate with CUSTOMER in the development of an
Electronic Data Interchange (EDI) for the communication of purchase
orders, acknowledgements, subsequent invoicing or other data that may
be communicated between CUSTOMER and SELLER. SELLER further agrees to
the terms and conditions as set forth in Exhibit D for the transmission
of such electronically communicated data.
14. PRECEDENCE OF DOCUMENTS
(a) All quotations, purchase orders, acknowledgements, and invoices
issued pursuant to this Agreement shall be subject to the
provisions contained in this Agreement. The terms and conditions
of this Agreement will control over any conflicting or
inconsistent terms contained in any quotation, purchase order,
acknowledgement or invoice. Unless SELLER's rejection is forwarded
to CUSTOMER with ten (10)
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days of receipt of the purchase order, the following provisions,
as they relate to the PRODUCT ordered pursuant to a particular
purchase order, can be changed by language contained in that
purchase order; (i) the quantity, (ii) special quoted price, (iii)
payment terms, (iv) warranty period, (v) packaging instructions,
(vi) shipping instructions, (vii) title and risk of loss, (viii)
additional documentation requirements, (ix) delivery date, or (x)
description of the PRODUCT.
(b) Except for the changes enumerated in Section 14.(a)(i-x) above, no
modification to this Agreement or additional terms contained in
any quotation, purchase order, acknowledgment, or invoice shall be
valid without the prior written approval of the officer who
executed this Agreement on behalf of CUSTOMER.
15. DELIVERY
(a) Unless otherwise specified in the applicable purchase order, title
to a PRODUCT sold pursuant to this Agreement shall pass at the
time of shipment by SELLER as described in Section 15.(b). Any
loss or damage to a PRODUCT prior to the passing of title shall be
for the account and risk of SELLER. Any loss or damage to a
PRODUCT after the passing of title shall be for the account and
risk of CUSTOMER. Nothing contained in this Section 15.(a) shall
be construed to reduce or otherwise affect the obligations of
SELLER to obtain insurance covering any PRODUCT shipped by it to
CUSTOMER.
(b) Shipments of PRODUCT shall be made FOB Origin, freight collect or
as otherwise specified on individual purchase orders. When
CUSTOMER requests SELLER to arrange the transportation of the
PRODUCT, SELLER shall ship PRODUCT freight collect in accordance
with [*Confidential treatment requested], unless
otherwise specified on CUSTOMER's purchase order. If SELLER is
instructed by CUSTOMER to ship prepaid and added to the invoice,
SELLER shall select a carrier based on the best rate as negotiated
by SELLER, and CUSTOMER shall only pay SELLER's net transportation
costs, that include, but are not limited to, all applicable
discounts, allowances and refunds.
(c) Failure of SELLER to ship PRODUCT in accordance with CUSTOMER's
freight routing instructions shall result in charge-backs to
SELLER for excess freight charges.
(d) Unless instructed otherwise by CUSTOMER, SELLER shall, for
purchase orders placed, (i) see that all subordinate documents
bear CUSTOMER's purchase order number; (ii) enclose a packing list
with each shipment and when more than one package is shipped,
identify the one containing the packing list; (iii) ▇▇▇▇
CUSTOMER's purchase order number on all packages and shipping
papers; (iv) render invoices showing CUSTOMER's purchase order
number; (v) render separate invoices for each shipment or purchase
order; (vi) forward shipping notices with invoices; (vii) invoice
CUSTOMER by mailing or otherwise transmitting invoices, bills, and
notices to the billing address on the purchase order; and (viii)
make available a ▇▇▇▇ of lading upon request.
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(e) Standard delivery intervals for PRODUCT shall be specified in
Exhibit F and may be amended only by a written document signed by
both parties. Standard delivery intervals begin from the date of
SELLER's receipt of CUSTOMER's purchase order.
(f) SELLER shall ship PRODUCT to CUSTOMER within (i) the delivery
intervals specified in Exhibit F (which do not include in-transit
interval), or (ii) as otherwise provided by SELLER to CUSTOMER in
a firm price quotation, purchase order acknowledgment or other
written means (provided that such time period is not longer than
the time period specified in Exhibit F without CUSTOMER's written
request or agreement) with a minimum ninety-six percent (96%) on
time shipping performance service level. On time shipping
performance service level shall be calculated as total line items
shipped complete, as compared to the total number of line items
ordered that have been purchase for delivery within SELLER's
stated delivery interval. SELLER shall provide CUSTOMER, on a
quarterly basis, at the addresses as referenced in Section 35,
NOTICES, shipping reports delineating the following information:
(1) CUSTOMER's purchase order number;
(2) Date CUSTOMER's purchase order received by SELLER.
(3) Date purchase order shipped complete from SELLER;
(4) Total number of line items scheduled for shipment in the
period;
(5) Total number of line items shipped complete and on time in
the period; and
(6) Percent (%) of line items shipped complete and on time in
the period.
16. PACKAGING
PRODUCT shall be packaged for shipment, at no additional charge, in
suitable containers that provide protection against damage during the
domestic shipment, handling and storage in reasonably dry, unheated
quarters. [*Confidential treatment will be requested.] Corrugated
shipping containers shall comply with the requirements of Item 222 of
the National Motor Freight Code, Series NMFC 100-S, which may be
amended from time to time. Containers of any type that are too heavy or
too large to be palletized shall be skidded to facilitate fork truck or
mechanized handling.
17. ▇▇▇▇ OF SALE
SELLER shall, upon request and after payment by CUSTOMER, execute and
deliver to CUSTOMER a ▇▇▇▇ of sale or similar document evidencing
conveyance of PRODUCT, free and clear of all liens, security interests
and encumbrances.
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18. INSPECTION AND ACCEPTANCE
(a) All PRODUCT ordered pursuant to this Agreement shall be subject to
inspection by CUSTOMER after delivery to determine conformity with
CUSTOMER's purchase order and SELLER's advertised or published
specifications. If the PRODUCT delivered does not so conform,
CUSTOMER shall have the right to reject such PRODUCT. PRODUCT that
has been delivered and rejected, in whole or in part, shall be
returned to SELLER at SELLER's risk and expense. CUSTOMER shall
have a period of one hundred twenty (120) days following arrival
of standard PRODUCT and ninety (90) days following arrival of
custom PRODUCT at the delivery destination specified by CUSTOMER
within which to inspect the PRODUCT for conformity with CUSTOMER's
purchase order and SELLER's advertised and published
specifications and to provide SELLER with written notice of any
discrepancy or rejection. CUSTOMER shall notify SELLER and arrange
for the return of PRODUCT as required.
(b) Inspection or failure to inspect on any occasion shall not affect
CUSTOMER's rights under the "WARRANTY" provisions of Exhibit H or
any other rights or remedies available to CUSTOMER, whether at law
or in equity.
19. PRODUCT STANDARDIZATION
During the term of this Agreement, SELLER shall comply with CUSTOMER's
standardization policies, procedures and terms as set forth in Exhibit
G.
*Confidential treatment will be requested.
,
21. TRADEMARK LICENSE
SELLER grants to CUSTOMER the nonexclusive right to use SELLER's trade
names and trademarks in marketing SELLER's PRODUCT. CUSTOMER agrees to
designate the PRODUCT properly and depict marks accurately.
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22. INFRINGEMENT
(a) SELLER agrees to indemnify, defend and hold harmless CUSTOMER and
its Affiliates, shareholders, directors, officers, employees,
contractors, agents and other representatives from all demands,
claims, actions, causes of action, proceedings, assessments,
losses, damages, liabilities, settlements, judgments, fines,
penalties, interest, cost and expenses (including fees and
disbursements of counsel) arising from or relating to any actual
or alleged infringement or misappropriation of any patent,
trademark, copyright, trade secret or any actual or alleged
violation of any other intellectual property rights arising from
or in connection with the PRODUCT provided or the services
performed under this Agreement regardless of whether such PRODUCT
or services form the entire basis or only a portion of the basis
for such claims of infringement, misappropriation or violation.
Notwithstanding anything to the contrary contained in this
Agreement (including, but not limited to, Section 30,
INDEMNIFICATION AND INSURANCE), the provisions of this Section
22.(a) shall govern the rights of CUSTOMER and its Affiliates,
shareholders, directors, officers, employees, contractors, agents
and other representatives to indemnification for claims of
infringement, misappropriation or violation of intellectual
property rights.
(b) Except for the negligence provisions, the procedures set forth in
Section 30, INDEMNIFICATION AND INSURANCE, shall apply in the case
of any claims of infringement, misappropriation or violation of
intellectual property rights for which indemnification will be
sought.
(c) Additional INFRINGEMENT responsibilities and obligations for the
manufacturer(s) of the PRODUCT(s) are contained in EXHIBIT H.
23. CONFIDENTIAL INFORMATION
(a) In order for the parties to perform their respective obligations
under this Agreement, it may be necessary for either party to
disclose to the other technical, customer, personnel and/or
business information in written, graphic, oral or other tangible
or intangible forms including, but not limited to, specifications,
records, data, computer programs, drawings, schematics, know-how,
notes, models, reports and samples. Such information may contain
proprietary or confidential material, or material subject to
applicable laws regarding secrecy of communications or trade
secrets (Confidential Information).
(b) Each party acknowledges and agrees:
(1) That all Confidential Information acquired by either party
from the other shall be and shall remain the exclusive
property of the disclosing party;
(2) To identify in writing as confidential or proprietary, or
▇▇▇▇ as confidential or proprietary, any information that
either party deems to be Confidential Information;
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(3) That information that is disclosed orally shall not be
considered Confidential Information unless it is reduced to
writing or to a written summary that identifies the
orally-disclosed topics to be considered as Confidential
Information and such writing is provided to the recipient
at the time of disclosure or within thirty (30) days
thereafter.
(4) To receive in confidence any Confidential Information; to
limit access to such Confidential Information to authorized
employees who have a need to know the Confidential
Information in order for the party to perform its
obligations under this Agreement and who have been informed
of the confidential and proprietary nature; not to
disclose, reveal or divulge any Confidential Information or
authorize any other person to do so except (i) as
specifically approved in writing by the disclosing party or
(ii) as required in connection with the due and proper
performance by the receiving party of its obligations under
this Agreement (which shall not be deemed to include
disclosure to consultants, advisors or other third parties
which are not full-time, regular employees of the receiving
party);
(5) To use such Confidential Information only for the purposes
of performing their obligations under this Agreement and
for such other purposes as may be agreed upon between the
parties in writing;
(6) If a receiving party receives a request to disclose any
Confidential Information (whether pursuant to a valid and
effective subpoena, an order issued by a court or other
governmental authority of competent jurisdiction or
otherwise) on advice of legal counsel that disclosure is
required under applicable law, such party agrees that,
prior to disclosing any Confidential Information, it shall
(i) notify the disclosing party of the existence and terms
of such request or advice, (ii) cooperate with the
disclosing party in taking legally available steps to
resist or narrow any such request or to otherwise eliminate
the need for such disclosure, if requested to do so by the
disclosing party, and (iii) if disclosure is required, use
its best efforts to obtain a protective order or other
reliable assurance that confidential treatment will be
afforded to such portion of the Confidential Information as
is required to be disclosed;
(7) Upon request of the disclosing party, to return all
Confidential Information to such party, or to destroy any
documents, computer media or records, in written, graphic,
or other tangible form, that contain any Confidential
Information;
(8) That the obligations with respect to Confidential
Information shall extend for a period of five (5) years
following the date of initial disclosure of that
Confidential Information, and such obligations shall extend
beyond completion of the term of this Agreement; and
(9) That nothing contained in this Section 23 shall be
construed as a license or permission to make, use, or sell
the Confidential Information or products derived therefrom.
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(c) The obligations contained in this Section 23 do not apply to
Confidential Information that:
(1) As shown by reasonably documented proof, was in the
receiving party's possession prior to receipt thereof from
the disclosing party;
(2) As shown by reasonably documented proof, was received by
one party in good faith from a third party not subject to a
confidential obligation to the other party;
(3) Now is or later becomes publicly known through no breach of
confidential obligation by the receiving party;
(4) Is disclosed pursuant to a requirement imposed by a
governmental agency or is otherwise required to be
disclosed by operation of law, provided that the party
receiving the request for the information has fully
complied with its obligations under Section 23.(b)(6);
(5) Was developed by the receiving party without the developing
persons having access to any of the Confidential
Information received from the other party;
(6) Is authorized in writing by the disclosing party to be
released or is designated in writing by the source as no
longer being confidential or proprietary.
(d) It is agreed that a violation of any of the provisions of this
Section 23 will cause irreparable harm and injury to the
disclosing party and that party shall be entitled, in addition to
any other rights and remedies it may have at law or in equity, to
seek an injunction enjoining and restraining the receiving party
from doing or continuing to do any such act and any other
violations or threatened violations of this Section 23.
24. PUBLICITY AND DISCLOSURE
Each party agrees not to provide copies of this Agreement, or otherwise
disclose the terms of this Agreement, to any third party without the
prior written consent of the other party; provided, however, that
CUSTOMER may, without obtaining SELLER's consent, provide copies or
make disclosures to prospective purchasers of the business of CUSTOMER
or of any AFFILIATE; or for the purpose of obtaining third party
financing; and any regulatory or judicial body requesting such
information. The parties further agree to submit to one another, for
written approval, all advertising, sales promotion, press releases and
other publicity matters relating to the PRODUCT furnished or the
services performed pursuant to this Agreement, when its respective name
or ▇▇▇▇ is mentioned or language from which the connection of said name
or ▇▇▇▇ ▇▇▇ be inferred or implied. The parties further agree not to
publish or use such advertising, sales promotions, press releases, or
publicity matters without such prior written approval. Any approval
required under this Section shall not be unreasonably withheld or
delayed by either party.
12 CONFIDENTIAL
17
25. COMPLIANCE WITH LAWS
(a) SELLER shall comply with the provisions of all applicable federal,
state, county and local laws, ordinances, regulations and codes
(including procurement of required permits or certificates) in
manufacturing, assembling, selling and providing PRODUCT and in
performing its other obligations under this Agreement, including,
but not limited to, the standards promulgated under the
Occupational Safety and Health Act, Executive Order 11246, as
amended, Section 503 of the Vocational Rehabilitation Act of 1973,
as amended, the Vietnam Era Veterans Readjustment Assistance Act
of 1974, the Immigration Reform and Control Act of 1986, the Civil
Rights Acts of 1964 and 1991, the Americans with Disabilities Act,
the Age Discrimination in Employment Act, and all rules and
regulations relative to these Acts and other applicable equal
employment opportunity laws, rules and regulations, which are
expressly incorporated herein by reference. Irrespective of
whether a specification is furnished, if PRODUCT or containers
furnished are required to be constructed, packaged, labeled, or
registered in a prescribed manner, SELLER shall comply with
applicable federal, state or local laws. SELLER shall indemnify
CUSTOMER against all claims, loss or damage sustained because of
its noncompliance.
(b) If any persons furnished under the Agreement by SELLER have a
disability as defined in the Americans with Disabilities Act, 42
U.S.C.A. 12101 et seq. (the ADA), SELLER shall, where required by
Title I of the ADA and at its sole expense, provide "reasonable
accommodations" that may be required under Title I of the ADA
including, but not limited to, "auxiliary aids and services" to
make aural, visual materials or interpreters available to
individuals furnished by SELLER with impairments so that such
individuals are able to perform the essential functions of the job
they are contracted to perform. SELLER further agrees to indemnify
and defend CUSTOMER for any losses, fines, reasonable attorney
fees, or other penalties that may be incurred or assessed upon
CUSTOMER due to SELLER's failure to comply with the provisions of
the Title I of the ADA with respect to the persons furnished by
SELLER.
(c) PRODUCT furnished shall comply, to the extent applicable, with the
requirements of the Federal Communications Commission's Rules and
Regulations, as may be amended, including those sections
concerning the labeling of such PRODUCT and the suppression of
radiation to specified levels. If the PRODUCT generates
interference harmful to radio communications, and such PRODUCT was
installed in accordance with such Rules and Regulations, then
SELLER shall provide to CUSTOMER methods for suppressing the
interference. If the interference cannot be reasonably suppressed,
SELLER shall accept return of the PRODUCT, refund to CUSTOMER the
price paid for the PRODUCT and bear all expenses for removal and
shipment of such PRODUCT. Nothing herein shall be deemed to
diminish or otherwise limit SELLER's obligations under the
"WARRANTY" PROVISIONS of Exhibit H herein or any other rights or
remedies available to CUSTOMER, whether at law or in equity.
13 CONFIDENTIAL
18
26. FORCE MAJEURE
(a) Neither party shall be responsible for any delay or failure in
performance of any part of this Agreement to the extent that such
delay or failure is caused by fire, flood, explosion, war,
embargo, government requirement, civil or military authority, acts
of God, strikes, slowdowns, picketing, boycotts, or any other
circumstances beyond its reasonable control and not involving any
fault or negligence of the party affected (Condition). If any such
Condition occurs, the party delayed or unable to perform shall
promptly give written notice to the other party and, if such
Condition remains at the end of thirty (30) days, the party
affected by the other's delay or inability to perform may elect to
(i) terminate such purchase order or part thereof, or (ii) suspend
such purchase order for the duration of the Condition, and if
CUSTOMER is the suspending party, buy elsewhere comparable
material to be sold under such purchase order, and apply to any
commitment the purchase price of such purchase, and resume
performance of such purchase order once the Condition ceases, with
an option in the affected party to extend the period of this
Agreement up to the length of time the Condition endured.
(b) Unless written notice is given within thirty (30) days after the
affected party is notified of the Condition, (a)(ii) above shall
be deemed selected.
27. ASSIGNMENT
(a) The rights and obligations of the parties shall neither be
assigned nor delegated without the prior written consent of the
other party. However, any party may assign or delegate its
respective rights and obligations, in whole or in part, to any
parent, subsidiary or affiliate of that party that was such a
parent, subsidiary or affiliate at the time of execution of this
Agreement; provided that the assigning party gives the other
thirty (30) days' prior written notice and the assignee agrees to
be bound by the terms of this Agreement.
(b) The limitation on assignment does not apply to an assignment
confined solely to monies due or to become due under this
Agreement, provided the party is given thirty (30) days' prior
written notice of such assignment. An assignment of monies shall
be void to the extent that it attempts to impose upon the party
obligations to the assignee in addition to the payment of such
monies, or to preclude the party from dealing solely and directly
with the other in all matters, including negotiation of amendments
or settlement of amounts due, or it gives rise to any additional
rights or defenses available to the assignee that were not
available to the other party.
(c) If CUSTOMER sells, exchanges or otherwise disposes of all or a
portion of the assets of, or CUSTOMER's interest in, any business
unit in which PRODUCT are used, then CUSTOMER shall have the
right, upon written notice to SELLER, to assign to such third
party all licenses and rights granted under this Agreement with
respect to such PRODUCT; provided that the third party agrees to
be bound by all obligations of CUSTOMER to SELLER that pertain to
the PRODUCT.
14 CONFIDENTIAL
19
(d) CUSTOMER may assign to a leasing company CUSTOMER's right to
purchase PRODUCT under the terms and conditions of this Agreement
for CUSTOMER's internal use.
28. TAXES
CUSTOMER shall be liable for and shall reimburse SELLER for payments of
Federal Manufacturers' and Retailers' Excise Taxes and state and local
sales and use taxes, as applicable, with respect to transactions under
this Agreement. Taxes payable by CUSTOMER shall be separately stated in
SELLER's invoices and shall not be included in SELLER's prices.
CUSTOMER shall not be liable for any tax for which a valid exemption
certificate acceptable to the applicable state or local taxing
authorities is furnished by CUSTOMER to SELLER. CUSTOMER's purchase
order may provide SELLER additional tax instruction as allowed by law
including, but not limited to, CUSTOMER's accrual and payment of taxes
and/or special jurisdictional exemptions.
29. PLANT AND WORK RULES AND RIGHT OF ACCESS
(a) The respective agents and employees of the parties, while on the
premises of the other, shall comply with all plant rules,
regulations and reasonable company standards for security,
including (when required by U. S. government regulations)
submission of satisfactory clearance from U. S. Department of
Defense and other federal authorities concerned.
(b) Each party shall permit reasonable access during normal working
hours to its facilities in connection with the work. No charge
shall be made for such visits. Reasonable prior notice shall be
given when access is required.
(c) If SELLER is given access, whether on-site or through remote
facilities, to any CUSTOMER computer or electronic data storage
system in order for SELLER to accomplish the work called for in
this Agreement, SELLER shall limit such access and use solely to
perform work within the scope of this Agreement and shall not
access or attempt to access any computer system, electronic file,
Software or other electronic services other than those
specifically required to accomplish the work required under this
Agreement. SELLER shall limit such access to those of its
employees whom CUSTOMER has authorized in writing to have such
access in connection with this Agreement, and shall strictly
follow all CUSTOMER's security rules and procedures for use of
CUSTOMER's electronic resources. All user identification numbers
and passwords disclosed to SELLER and any information obtained by
SELLER as a result of SELLER's access to and use of CUSTOMER's
computer and electronic data storage systems shall be deemed to
be, and shall be treated as, CUSTOMER Confidential Information
under applicable provisions of this Agreement. SELLER agrees to
cooperate with CUSTOMER in the investigation of any apparent
unauthorized access by SELLER to CUSTOMER's computer or electronic
data storage systems or unauthorized release of Confidential
Information by SELLER.
15 CONFIDENTIAL
20
30. INDEMNIFICATION AND INSURANCE
(a) SELLER shall indemnify, defend, and hold harmless CUSTOMER and its
affiliates, officers, agents, and employees, from all claims,
suits, actions, demands, damages, liabilities, expenses (including
fees and disbursements of counsel), judgments, settlements and
penalties of every kind based on (i) personal injury, death, or
property damage to the extent any of the foregoing is proximately
caused by either any defective PRODUCT provided by SELLER, its
officers, employees, subcontractors or agents, or by the negligent
or willful acts or omissions of SELLER, its officers, employees,
subcontractors or agents, or (ii) strict liability in tort or
products liability of any other kind in connection with any
PRODUCT provided by SELLER, its officers, employees,
subcontractors or agents or the use, resale or distribution of any
such PRODUCT by CUSTOMER. The foregoing indemnity, to the extent
permitted by law, shall apply in the case of all claims that arise
from the negligence, misconduct or other fault of CUSTOMER,
provided, however, that if a claim is the result of the joint
negligence, joint misconduct, or joint fault of SELLER and
CUSTOMER, the amount of the claim for which CUSTOMER is entitled
to indemnification shall be limited to that portion of such claim
that is attributable to the negligence, misconduct or other fault
of SELLER. The obligations of this provision are in addition to
SELLER obligation to provide insurance and shall not be limited by
any limitation on the amount or type of damages, compensation or
benefits payable by SELLER under the Worker's Compensation Acts,
Longshoremen and Harborworker's Act, Disability Benefits Act or
any other employee benefit act.
(b) CUSTOMER shall promptly notify SELLER in writing of any suits,
claims or demands covered by this indemnity. Promptly after
receipt of such notice, SELLER shall assume the defense of such
claim with counsel reasonably satisfactory to CUSTOMER. If SELLER
fails, within a reasonable time after receipt of such notice, to
assume the defense with counsel reasonably satisfactory to
CUSTOMER, or if, in the reasonable judgment of CUSTOMER, a direct
or indirect conflict of interest exists between the parties with
respect to the claim, or if in the sole judgment of CUSTOMER the
assumption and conduct of the defense by SELLER would materially
and adversely affect CUSTOMER in any manner or prejudice its
ability to conduct a successful defense, then CUSTOMER shall have
the right to undertake the defense, compromise and settlement of
such claim for the account and at the expense of SELLER.
Notwithstanding the above, if CUSTOMER in its sole discretion so
elects, CUSTOMER may also participate in the defense of such
actions by employing counsel at its expense, without waiving
SELLER's obligations to indemnify or defend. SELLER shall not
settle or compromise any claim or consent to the entry of any
judgment without the prior written consent of CUSTOMER and without
an unconditional release of all liability by each claimant or
plaintiff to CUSTOMER.
(c) SELLER agrees to maintain during the term all insurance or bonds
required by law or this Agreement, including, but not limited to
(i) Worker's Compensation and related insurance as prescribed by
the law of the state in which SELLER's services are performed or
PRODUCT are delivered; (ii) employer's liability insurance with
limits of at least one million dollars ($1,000,000) for each
occurrence, and (iii) comprehensive general liability insurance
including products liability, and, if the use
16 CONFIDENTIAL
21
of motor vehicles is required, comprehensive motor vehicle
liability insurance, each with limits of at least two million
dollars ($2,000,000) for combined single limit for bodily injury,
including death, and/or property damage. SELLER shall cause
CUSTOMER to be included as an additional insured under said
policies (as "GTE Corporation and its affiliates and
subsidiaries") and CUSTOMER's coverage under such policies shall
be primary. SELLER shall waive its rights of subrogation against
CUSTOMER for Workers' Compensation claims. SELLER shall, prior to
rendering such services, furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of such
coverage, the expiration date of each policy, and stating that no
material change or cancellation of any such policy shall be
effective unless thirty (30) days' prior written notice is given
to CUSTOMER.
(d) Additional INDEMNIFICATION AND INSURANCE responsibilities and
obligations for the manufacturer(s) of the PRODUCT(s) are
contained in EXHIBIT H.
31. RELATIONSHIP OF PARTIES
In providing any services under this Agreement, SELLER is acting solely
as an independent contractor and not as an agent of any other party.
Persons furnished by the respective parties shall be solely the
employees or agents of such parties, respectively, and shall be under
the sole and exclusive direction and control of such parties. They
shall not be considered employees of the other party for any purpose.
Each party shall be responsible for compliance with all laws, rules and
regulations involving its respective employees or agents, including
(but not limited to) employment of labor, hours of labor, health and
safety, working conditions and payment of wages. Each party shall also
be responsible, respectively, for payment of taxes, including federal,
state, and municipal taxes, chargeable or assessed with respect to its
employees or agents, such as social security, unemployment, worker's
compensation, disability insurance and federal and state income tax
withholding. Neither party undertakes by this Agreement or otherwise to
perform or discharge any liability or obligation of the other party,
whether regulatory or contractual, or to assume any responsibility
whatsoever for the conduct of the business or operations of the other
party. Nothing contained in this Agreement is intended to give rise to
a partnership or joint venture between the parties or to impose upon
the parties any of the duties or responsibilities of partners or joint
venturers.
32. TOXIC SUBSTANCES AND HAZARDOUS PRODUCT
SELLER represents that each PRODUCT furnished by SELLER is safe for
normal use, is nontoxic, presents no abnormal hazards to persons or the
environment, and may be disposed of as normal refuse.
33. TERMINATION
(a) CUSTOMER may terminate this Agreement without cause, effective
immediately, upon written notice to SELLER. Termination shall not
affect any purchase order placed, any subordinate agreement
executed prior to the date of termination, or any fully paid up
license granted to CUSTOMER. Upon termination of this Agreement
without cause, CUSTOMER shall not be liable to SELLER, either for
compensation or for damages of any kind or character whatsoever,
whether on account of the loss
17 CONFIDENTIAL
22
by SELLER of present or prospective profits on sales or
anticipated sales, or expenditures, investments or commitments
made in connection with the establishment, development or
maintenance of SELLER's business, or on account of any other cause
or thing whatsoever. The termination shall not prejudice the
rights or liabilities of the parties with respect to PRODUCT sold,
or any indebtedness then owing by either party to the other.
(b) Either party may terminate this Agreement, effective immediately,
without liability for said termination, upon written notice to the
other party, if any of the following events occur.
(1) The other files a voluntary petition in bankruptcy;
(2) The other is adjudged bankrupt;
(3) A court assumes jurisdiction of the assets of the other
under a federal reorganization act;
(4) A trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other;
(5) The other becomes insolvent or suspends its business;
(6) The other makes an assignment of its assets for the benefit
of its creditors, except as required in the ordinary course
of business; or
(7) The identity of the other's business is materially changed
by sale of its business, transfer of control of its
outstanding stock, merger or otherwise.
(c) Either party may terminate this Agreement for a material breach or
default of any of the terms, conditions or covenants of this
Agreement by the other, provided that such termination may be made
only following the expiration of a thirty (30) day period during
which the other party has failed to cure such breach after having
been given written notice of such breach. This subsection shall
not apply to CUSTOMER's cancellations or SELLER's revocations
under Section 7, PURCHASE ORDERS; CANCELLATION OF PURCHASE ORDERS;
REVOCATION OF ACKNOWLEDGEMENT.
34. DISPUTE RESOLUTION
(a) The parties desire to resolve certain dispute, controversies and
claims arising out of this Agreement without litigation.
Accordingly, except in the case of (i) a dispute, controversy or
claim relating to a breach or alleged breach on the part of either
party of the provisions of Section 23, CONFIDENTIAL INFORMATION,
(ii) a suit, action or proceeding to compel SELLER to comply with
its obligations to indemnify CUSTOMER pursuant to this Agreement
or (iii) a suit, action or proceeding to compel either party to
comply with the dispute resolution procedures set forth in this
Section 34, the parties agree to use the following alternative
procedure as their sole remedy with respect to any dispute,
controversy or claim arising out of or relating
18 CONFIDENTIAL
23
to this Agreement or its breach. The term "Arbitrable Dispute"
means any dispute, controversy or claim to be resolved in
accordance with the dispute resolution procedure specified in this
Section 34.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any Arbitrable Dispute arising under this
Agreement. The parties intend that these negotiations be conducted
by nonlawyer, business representatives. The discussions shall be
left to the discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as confidential
information developed for purposes of settlement, shall be exempt
from discovery and production, and shall not be admissible in the
arbitration described below or in any lawsuit without the
concurrence of all parties. Documents identified in or provided
with such communications, which are not prepared for purposes of
the negotiations, are not so exempted and may, if otherwise
admissible, be admitted in evidence in the arbitration or lawsuit.
(c) If the negotiations do not resolve the Arbitrable Dispute within
sixty (60) days of the initial written request, the Arbitrable
Dispute shall be submitted to binding arbitration by a single
arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. A party may demand such
arbitration in accordance with the procedures set out in those
rules. Discovery shall be controlled by the arbitrator and shall
be permitted to the extent set out in this Section. Each party may
submit in writing to a party, and that party shall so respond, to
a maximum of any combination of thirty-five (35) (none of which
may have subparts) of the following: interrogatories, demands to
produce documents and requests for admission. Each party is also
entitled to take the oral deposition of one (1) individual or
another party. Additional discovery may be permitted upon mutual
agreement of the parties. The arbitration hearing shall be
commenced within sixty (60) days of the demand for arbitration and
the arbitration shall be held in Dallas, Texas. The arbitrator
shall control the scheduling so as to process the matter
expeditiously. The parties may submit written briefs. The
arbitrator shall rule on the Arbitrable Dispute by issuing a
written opinion within thirty (30) days after the close of
hearings. The times specified in this Section may be extended upon
mutual agreement of the parties or by the arbitrator upon a
showing of good cause. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
(d) Each party shall bear its own cost of these procedures. A party
seeking discovery shall reimburse the responding party the cost of
production of documents (to include search time and reproduction
time costs). The parties shall equally share the fees of the
arbitration and the arbitrator.
35. NOTICES
Except as otherwise provided herein, any notice or demand given under
the terms of this Agreement or pursuant to statute shall be in writing
and shall be given or made by telegram, facsimile transmission,
certified or registered mail, express mail or other overnight
19 CONFIDENTIAL
24
delivery service or hand delivery, proper postage or other charges paid
and addressed or directed to the respective parties as follows:
To CUSTOMER:
GTE Supply ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: Senior
Contract Manager-Contract Management (HQW03N73)
GTE Supply ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: Assistant
Vice President-Contract Management (HQW03L61)
and
GTE Service Corporation ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Director-Standardization Testing and Technology (HQB08A50)
and
GTE Supply ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Department Manager-Vendor Administration (HQA07B04)
To SELLER:
World Wide Technology, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇ ▇▇▇ ▇▇▇▇-Manager
The address for notice set out above may be changed at any time by
giving thirty (30) days' prior written notice.
36. LABOR SERVICES
Should SELLER wish to be employed by CUSTOMER and CUSTOMER wish to
employ SELLER to perform certain work in connection with the functions
of engineering, construction, installation, or maintenance of equipment
and/or facilities, SELLER shall enter into a General Agreement for
Engineering, Construction, Installation, or Maintenance to Telephone
Plant (the "General Agreement") with the telephone company affiliates
of CUSTOMER to set forth the mutual rights and obligations of the
parties and the manner in
20 CONFIDENTIAL
25
which such work shall be performed. A copy of CUSTOMER's then current
version of the General Agreement shall be provided to SELLER upon
request.
37. NONWAIVER
Either party's failure to enforce any of the provisions of this
Agreement or any purchase order, or to exercise any option, shall not
be construed as a waiver of such provisions, rights, or options, or
affect the validity of this Agreement or any purchase order.
38. SEVERABILITY
In any of the provisions of this Agreement shall be invalid or
unenforceable, then such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Agreement. The entire
Agreement shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and
obligations of SELLER and CUSTOMER shall be construed and enforced
accordingly.
39. SECTION HEADINGS
The headings of the sections are inserted for convenience only and are
not intended to affect the meaning or interpretation of this Agreement.
40. SURVIVAL OF OBLIGATIONS
The respective obligations of the parties under this Agreement that by
their nature would continue beyond the termination, cancellation or
expiration, shall survive any termination, cancellation or expiration,
including, but not limited to, obligations to indemnify, insure and
maintain confidentiality, and continued availability of PRODUCT
support.
41. CHOICE OF LAW AND JURISDICTION
The construction, interpretation and performance of this Agreement
shall be governed by and construed in accordance with the laws of the
state of Texas without regard to any conflicts of law principles that
would require the application of the laws of any other jurisdiction and
subject to the exclusive jurisdiction of its federal or state courts in
Dallas County, Texas. The application of the U. N. Convention on
Contracts for the International Sale of Goods is specifically excluded
from this Agreement.
42. ENTIRE AGREEMENT
This Agreement together with its exhibits constitutes the entire
agreement between the parties and cancels all contemporaneous or prior
agreements, whether written or oral, with respect to the subject matter
of this Agreement. Except as provided in Sections 14, PRECEDENCE OF
DOCUMENTS, and ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; CANCELLATION OF PURCHASE
ORDERS; REVOCATION OF ACKNOWLEDGEMENT, no modifications shall be made
to this Agreement unless in writing and signed by appropriate
representatives of the parties.
21 CONFIDENTIAL
26
Each party represents that it has executed this Agreement through its authorized
corporate representative:
WORLD WIDE TECHNOLOGY, INC. GTE COMMUNICATION SYSTEMS
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
-------------------------------- ------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇▇▇
----------------------------
Title: President Title: Assistant Vice President-Contract
---------------------------- Management
Date: 11-26-97 Date: 11/25/97
---------------------------- -----------------------------------
APPROVED AS TO FORM AND LEGALITY
/s/ J. R. ▇▇▇▇▇▇▇▇
---------------------------------------
Attorney, GTE Telephone Operations
Date: 11-25-97
----------------------------------
22 CONFIDENTIAL
27
EXHIBIT A
GTE AFFILIATED ENTITIES
CONFIDENTIAL
28
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Alaska Incorporated
GTE Arkansas Incorporated
GTE California Incorporated
Contel Advanced Systems, Inc.
GTE Florida Incorporated
GTE Communications Corporation
GTE Funding Incorporated
GTE Hawaiian Telephone Company Incorporated
GTE Hawaiian Tel Insurance Company Incorporated
GTE Hawaiian Tel International Incorporated
The Micronesian Telecommunications Corporation
GTE Pacifica Incorporated
GTE Midwest Incorporated
GTE North Incorporated
GTW Telephone Systems Incorporated
GTE Northwest Incorporated
GTE West Coast Incorporated
GTE South Incorporated
GTE Southwest Incorporated
Contel of Minnesota, Inc. d/b/a GTE Minnesota
Contel of the South, Inc. d/b/a GTE Systems of the South
Contel Service Corporation
Continental Telephone Business Systems, Inc.
GTE Anglo Holding Company Incorporated
La Compagnie de Telephone Anglo-Canadienne/Anglo-Canadian Telephone Company
BC TELECOM Inc.
Quebec-Telephone
GTE London Limited (England)
GTE Holdings (Canada) Limited
Compania Dominicana de Telefonos, C. por A. (Codetel)
GTE International Telephone Incorporated
Codetel Computer Graphics Holdings B.V. (Netherlands)
Informatica y Telecommunicaciones, C. por A. (Dominican Republic)
GTE International Telecommunications Incorporated
GTE do Brasil Limitada
GTE PCS International Incorporated
GTE Venezuela Incorporated
VenWorld Telecom, C.A. (Venezuela)
GTE Investments Incorporated
CONFIDENTIAL
29
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Customer Networks, Inc.
GTE Data Services Incorporated
GTE Data Services Holdings Mexico, S. de ▇.▇. de C.V.
GTE Data Services-Mexico, S.A. de C.V.
GTEDS Data Services-Mexico, S.A. de C.V.
GTE Data Services International Incorporated
GTE Intelligent Network Services Incorporated
GTE Main Street Incorporated
GTE Media Ventures Incorporated
▇. ▇. ▇▇▇▇▇, Inc.
Apollo Cablevision, Inc.
Contel Vision, Inc.
GTE Professional Services Incorporated
GTE Vantage Incorporated
CONFIDENTIAL
30
EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Mobile Communications Incorporated
GTE Mobile Communications Service Corporation
GTE Mobile Communications International Incorporated
GTE Macro Communications Corporation
GTE Mobilnet of Asheville Incorporated
GTE Mobilnet of Danville Incorporated
GTE Mobilnet of Eastern North Carolina Incorporated
GTE Mobilnet of Fayetteville Incorporated
GTE Mobilnet of Florence, South Carolina Incorporated
GTE Mobilnet of North Carolina Incorporated
GTE Mobilnet of Raleigh Incorporated
GTE Mobilnet of South Carolina Incorporated
GTE Mobilnet of the Southeast Incorporated
Tuscaloosa/▇▇▇▇▇▇▇▇ Holdings, Inc.
GTE Airfone Incorporated
GTE Mobilnet Incorporated
GTE Cellular Communications Corporation
GTE Mobilnet of Cleveland Incorporated
GTE Mobilnet of Indianapolis Incorporated
GTE Wireless of the Pacific Incorporated
GTE Mobilnet of Tampa Incorporated
GTE Mobilnet Sales Corp.
GTE Mobilnet Service Corp.
CONFIDENTIAL
31
EXHIBIT A
GTE AFFILIATED ENTITIES
Contel Cellular Inc.
Contel Cellular International, Inc.
GTE Mobilnet Holding Incorporated
GTE Mobilnet of Alabama Incorporated
GTE Mobilnet of Birmingham Incorporated
GTE Mobilnet of Chattanooga Incorporated
GTE Mobilnet of Chattanooga II Incorporated
GTE Mobilnet of Clarksville Incorporated
GTE Mobilnet of Gadsden Incorporated
GTE Mobilnet of Kentucky Incorporated
GTE Mobilnet of Knoxville Incorporated
GTE Mobilnet of Memphis Incorporated
GTE Mobilnet of Memphis II Incorporated
GTE Mobilnet of Nashville Incorporated
GTE Mobilnet of Tennessee Incorporated
GTE Mobilnet of Central California Incorporated
GTE Mobilnet of ▇▇▇▇▇▇▇▇▇ Incorporated
GTE Mobilnet of Huntsville Incorporated
GTE Mobilnet of Illinois Funding Incorporated
GTE Mobilnet of Illinois Incorporated
GTE Mobilnet of Indiana Incorporated
GTE Mobilnet of Richmond Incorporated
GTE Mobilnet of San Diego Incorporated
GTE Mobilnet of the South Incorporated
GTE Mobilnet of the Southwest Incorporated
CONFIDENTIAL
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EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Information Services Incorporated
General Telephone Directory Company C. por A.
GTE Card Services Incorporated
GTE Directories (Belgium) Limited
GTE Directories (B) SDN.BHD (Brunei)
GTE Directories Corporation
GTEDS GmbH
GTE Directories (HK) Limited (Hong Kong)
GTE Government Information Services Incorporated
GTE Information Services (UK) Limited (England)
GTE New Media Services Incorporated
GTE Telecommunications Services Incorporated
GTE Yellow Pages Publishing Hungary Kft
Contel Federal Systems, Inc.
GTE Government Systems Corporation
GTE Telecom Incorporated
GTE Telecom International Incorporated
GTE Telecom International Systems Corporation
GTE China Incorporated
GTE Communications Services Incorporated
GTE Leasing Corporation
GTE Leasing Acceptance Corporation
Kalama Grain Terminal, Inc.
GTE Products of Connecticut Corporation
GTE Communication Systems Corporation (GTE Supply)
GTE Laboratories Incorporated
GTE Operations Support Incorporated
Televac, Inc.
CONFIDENTIAL
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EXHIBIT A
GTE AFFILIATED ENTITIES
GTE Transfer Corporation
GTE Service Corporation
GTE Finance Corporation
GTE Investment Management Corporation
GTE Massachusetts Incorporated
GTE Realty Corporation
GTE Realty Corporation of Connecticut
GTER Incorporated
GTE-TCCA, Inc.
GTE Reinsurance Company Limited (Vermont)
GTE Life Insurance Company Limited (Bermuda)
GTE Reinsurance Management Limited (Bermuda)
GTE Shareholder Services Incorporated
GTE Visnet Incorporated
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Agreement No. C971312BC002
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EXHIBIT D
EDI PURCHASE ORDERS
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EXHIBIT D
EDI PURCHASE ORDERS
1. At CUSTOMER's option, the parties agree to develop an Electronic Data
Interchange (EDI) for the electronic communication of purchase orders,
acknowledgments, subsequent invoicing or other data (DOCUMENTS). All
exchanged DOCUMENTS shall be channeled through one or more Third Party
Networks (TPNs) by one party to the other. Each party will arrange and pay
its own expenses for the transmission of electronic DOCUMENTS. Either party
may change its TPNs with thirty (30) days' prior written notice to the
other. Each party agrees to provide the other access codes necessary to
establish connections. Each party shall adopt reasonable security
procedures to ensure that (i) DOCUMENTS transmitted electronically are
authorized; (ii) its business records and data are protected from improper
use; and (iii) the security of access codes and electronic identification
codes is maintained. Prior to the performance of any new transmission of
DOCUMENTS under this Agreement, SELLER agrees to review and then perform,
to the best of its capabilities, in accordance with the instructions
provided in CUSTOMER's Implementation Guidelines. As determined by CUSTOMER
and SELLER, there may be a period during which the parties test and resolve
any operations issues.
2. At the option of the sending party and if the sending party has the
capacity to receive acknowledgements electronically, then, upon receipt of
a DOCUMENT, the receiving party shall promptly issue an acknowledgement to
the sending party solely for the purpose of acknowledgeing receipt of the
DOCUMENT. Otherwise, the receiving party shall provide written
acknowledgements to the sending party. If any transmitted DOCUMENT is
received in an unintelligible or garbled form, the receiving party shall
promptly notify the sending party (if identifiable from the received
DOCUMENT) in a reasonable manner. In the absence of such notice, the
sending party's records of contents of such DOCUMENT shall control.
3. For Electronic Funds Transfer (EFT), CUSTOMER agrees to electronically
transfer funds, as appropriate, to the financial institution and bank
account, number shown in Attachment A to this Exhibit D, as the same may be
modified from time to time by SELLER upon notice to CUSTOMER within
fourteen (14) days of the effective date of such modification. CUSTOMER
will make payments in accordance with the National Automated Clearing House
Associations (NACHA) Corporation Trading Rules. CUSTOMER's process is
governed by and in accordance with Article 4A of the Uniform Commercial
Code. CUSTOMER will not be responsible for any loss that may arise by
reason of error, mistake or fraud regarding SELLER's information provided
in Attachment A. Further, CUSTOMER will be responsible for loss of data
only when it is due to the sole negligence of CUSTOMER or its originating
bank.
4. The parties agree that a DOCUMENT properly transmitted electronically,
including a party's identification, shall be the same as a signed writing,
created in the ordinary course of the sending party's business, at or near
the time of the events recorded, and transmitted by a person with knowledge
of the events. When the DOCUMENT is printed from the electronic records,
the DOCUMENT shall be considered an original document. Neither party shall
contest the validity of the DOCUMENT on the grounds that it fails to meet
the common law
D-1
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5. statute of frauds or the statute of frauds found in Section 2-201 of the
Uniform Commercial Code, that it fails to meet the business records
exception to the hearsay rule or that it fails the best evidence rule
because it is not an original document.
6. For matters pertaining to the technical administration of EDI transactions,
the parties shall contact the individuals listed below:
CUSTOMER: SELLER:
▇▇▇▇ ▇▇▇▇▇▇ Ribindar ▇▇▇▇▇▇▇
MC: HQA03P03 ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ 314/919-1475
972/751-4342
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ATTACHMENT A
EFT INFORMATION
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59
EFT INFORMATION
SELLER'S COMPANY
NAME: World Wide Technology, Inc.
ADDRESS: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EFT CONTACT NAME: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EFT CONTACT TELEPHONE NO: 314/919-1469
EFT PAYMENTS EXTENDED BY: Five (5) days
(EFT payment days will be added to existing payment due dates to neutralize
check float.)
REMITTANCE METHOD (Please check one of the following):
EDI ANSI 820 sent to SELLER's bank with payment
---
XX EDI ANSI 820 sent to SELLER's company's EDI mailbox
---
Fax remittance to ( )- -
--- --- ---- -----
Paper remittance sent to existing remittance address
---
SELLER'S FINANCIAL INSTITUTION
BANK NAME: [*Confidential treatment will
be requested]
ADDRESS: [*Confidential treatment will
be requested]
BANK CALLING OFFICE:
BANK CONTACT TELEPHONE NO:
BANK TRANSIT ROUTING NO: [*Confidential treatment will
be requested]
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EFT INFORMATION
SELLER'S EFT BANK ACCOUNT NO
TO RECEIVE PAYMENTS: [* Confidential treatment will be requested]
BANK ACCOUNT NAME: [* Confidential treatment will be requested]
ACH FORMAT SELLER'S BANK
ACCEPTS (CTX OR CCD+): [* Confidential treatment will be requested]
COMBINE EFT REMITTANCE
WITH ACH: NO (Yes/No)
SELLER's Financial Institution should be consulted since EFT transmission
formats are influenced by SELLER's bank capability to receive electronic
payments.
The above EFT payment instructions are authorized, and the terms and condition
stated in this Agreement Number C971312BC002 are accepted by:
-------------------- --------------------
Signature Date
-------------------- --------------------
Printed Name Company Title
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EXHIBIT F
PRODUCT DELIVERY INTERVAL
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EXHIBIT F
PRODUCT DELIVERY INTERVAL
SELLER shall ship according to the following time frames. Time shall start after
receipt of order. Days shall be working days excluding Saturday, Sunday and
Holidays (New Years Day, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Friday after Thanksgiving, Christmas Eve and
Christmas Day).
Standard Fujitsu Plug-in Kits 5 (five) days
Standard Fujitsu Rack Systems 7 (seven) days
Custom Fujitsu Rack Configurations 14 (fourteen) days*
Standard Fujitsu Cabinet Configurations 7 (seven) days
Custom Fujitsu Cabinet Configurations 14 (fourteen) days*
* Custom rack and cabinet configurations will have been approved by
CUSTOMER's Standardization organization and SELLER will have completed
the required product engineering before purchase order is issued.
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EXHIBIT G
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
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EXHIBIT G
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
TABLE OF CONTENTS
PAGE
----
1. STANDARDIZATION POLICY.......................................1
2. PRODUCT EVALUATION FUNDING...................................1
3. TECHNOLOGICAL OR SPECIFICATION CHANGE/
PRODUCT DELETION/SUBSTITUTION................................2
4. UNSATISFACTORY CONDITION SITUATIONS..........................2
5. PRODUCT CHANGES..............................................2
6. QUALITY ASSURANCE REPORTING..................................4
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EXHIBIT G
STANDARDIZATION POLICIES, PROCEDURES AND TERMS
1. STANDARDIZATION POLICY
The GTE standardization process exists to evaluate and manage the
introduction of new or enhanced product and the life-cycle management
of embedded PRODUCT. SELLER is encouraged to direct presentation
efforts for new or enhanced product offerings to CUSTOMER's
standardization and/or testing organization(s) to ensure timely
evaluation and consideration of GTE standard product designation for
system wide application. The GTE standardization process complements
normal SELLER/CUSTOMER interaction required to support existing and
future applications of the SELLER's PRODUCT and technology.
2. PRODUCT EVALUATION FUNDING
(a) If the parties agree to pursue GTE standardization of new or
enhanced product in accordance with CUSTOMER's standardization
and/or testing policies and procedures, SELLER agrees to bear
all costs associated with required Independent Laboratory
Evaluations (ILEs) of the new or enhanced product. Such ILEs
shall be used by CUSTOMER's standardization and/or testing
organization(s) to assess the quality, reliability and safety
of such new or enhanced product prior to possible approval,
purchase, and deployment within GTE. ILEs conducted at
SELLER's expense do not guarantee product acceptance by
CUSTOMER and, if SELLER's product is not standardized by
CUSTOMER's standardization and/or testing organization(s) for
any reason, CUSTOMER shall not be liable for any cost incurred
by SELLER for any such ILEs for any reason.
(b) CUSTOMER may determine, from time to time, a need to
reevaluate SELLER's PRODUCT, or an Unsatisfactory Condition
Report (UCR) for SELLER's PRODUCT, substantiated by CUSTOMER's
standardization and/or testing organization(s), may also
warrant reevaluation. In such cases, SELLER shall bear any
costs associated with ILEs, in accordance with CUSTOMER's
standardization and/or testing policies and procedures, to
ensure continued quality of PRODUCT purchased and deployed by
CUSTOMER. ILEs conducted at SELLER's expense do not guarantee
continued PRODUCT acceptance by CUSTOMER and, if SELLER's
PRODUCT does not pass reevaluation for any reason, CUSTOMER
shall not be liable for any costs incurred by SELLER to such
ILEs for any reason.
G-1 CONFIDENTIAL
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3. TECHNOLOGICAL OR SPECIFICATION CHANGE/PRODUCT DELETION/SUBSTITUTION
(a) SELLER is required to give CUSTOMER written notice one hundred
twenty (120) days in advance of any technological or
specification change, Software/firmware revision, PRODUCT
deletion or manufacturer discontinuance that would
significantly impact PRODUCT operation, interchangeability
with existing PRODUCT appearance, warranty, life cycle or GTE
engineering/quality approvals of any PRODUCT. SELLER shall, at
the time of notification, provide CUSTOMER with (i) a PRODUCT
change number; (ii) a description of such change; (iii) the
reason for change; (iv) a description of the impact of such
change upon reliability, PRODUCT specifications, or form, fit
or function; (v) proposed price impact (if any); and (vi)
proposed effective date for such change and recommended
implementation schedule.
(b) SELLER shall conform to the interchangeability rules as
outlined in the Telecommunications Industry Forum (TCIF)
"TCIF97-001 Interchangeability Guideline" when assigning new
part numbers.
(c) If the parties fail to reach agreement on any such change in
PRODUCT to be made by SELLER, then, in addition to all other
rights and remedies at law or in equity or otherwise, CUSTOMER
shall, at no cost or liability, have the right to terminate
this Agreement and any and all ending purchase orders for
PRODUCT affected by such change.
(d) SELLER agrees that if the required one hundred twenty (120)
days' prior written notice is not provided, SELLER shall
accept, at CUSTOMER's option, a PRODUCT exchange or return for
all unsold PRODUCT in CUSTOMER's inventory on the effective
date of the change. Any PRODUCT returned must be unused,
undamaged and in the original carton and may be returned, at
Customer's option, for one hundred percent (100%) credit of
the price paid or an equal dollar value exchange for any other
PRODUCT offered under this Agreement.
4. UNSATISFACTORY CONDITION SITUATIONS
If at any time during normal operation CUSTOMER encounters an
unsatisfactory condition in the PRODUCT, SELLER agrees to meet the
following time frames for resolving the condition:
(a) Conditions that affect public or employee safety or the
ability to track and collect revenue, that cause major
degradation of service, or that impairs the basic
functionality of telecommunication service or its support
system by degrading the day-to-day services to customers,
SELLER shall acknowledge within fifteen (15) days of
notification and must provide a permanent resolution within
thirty (30) days of notification.
(b) Conditions that affect service, but have a temporary solution
to reduce the impact, or that have potential for major service
degradation, SELLER shall acknowledge
G-2 CONFIDENTIAL
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within fifteen (15) days of notification and must provide a
permanent resolution within ninety (90) days of notification.
(c) Conditions that are not service or safety affecting but that
have potential to adversely affect normal maintenance and/or
administration of service, SELLER shall acknowledge within
fifteen (15) days and provide a permanent resolution within
one hundred eighty (180) days of notification.
The parties may agree to action dates to correct unsatisfactory
conditions other than those stated above due to upgrades, technological
changes, etc. If an exception to the above corrective action time
frames occurs, the SELLER is bound by the newly agreed upon date. The
term "permanent resolution" shall mean a correction to an
unsatisfactory condition in the form of a new or revised hardware or
Software module, hardware modification kit, Software patch and/or
revised operating or maintenance procedures that are acceptable to
CUSTOMER. Corrections that are temporary in nature, such as hardware
modification or Software patches, shall be included in the next formal
version/release of PRODUCT.
5. PRODUCT CHANGES
(a) If, after PRODUCT has been shipped to CUSTOMER, SELLER issues
changes affecting such PRODUCT and a change is identified as
necessary for the PRODUCT to continue to meet SELLER's
published specifications or design criteria, or is an
identified correction of a deficiency as a result of a UCR
(refer to Section 4, UNSATISFACTORY CONDITION SITUATIONS,
above), SELLER shall provide prompt notification of required
changes to CUSTOMER's standardization and/or testing
organization(s) at the address provided to SELLER for such
purpose. SELLER shall, at SELLER's expense, be responsible for
all costs for parts, replacement and installation for such
change whether implemented by SELLER or CUSTOMER for ten (10)
years beyond the PRODUCT warranty period.
(b) If CUSTOMER and SELLER ascertain that PRODUCT, or a part
thereof, subject to such a change is readily returnable,
CUSTOMER or CUSTOMER's agent or contractor shall remove, at
SELLER's expense, and return such PRODUCT or part to SELLER's
designated repair or manufacturing facility and SELLER, at
SELLER's expense, shall implement such changes and return such
changed PRODUCT or part to CUSTOMER's designated location. If
removal of PRODUCT to be returned to SELLER for modification
would create an out-of-service condition, SELLER shall make
suitable arrangements to provide replacement PRODUCT to
prevent an out-of-service condition from occurring.
(c) Any PRODUCT maintained in CUSTOMER's inventory subject to such
a change shall be returned to SELLER's designated repair or
manufacturing facility to implement changes and shall be
returned to CUSTOMER's stocking location at SELLER's expense.
If such changes create an adverse impact on the PRODUCT
warranty or CUSTOMER's ability to sell the PRODUCT as new,
then SELLER shall accept at CUSTOMER's option, a PRODUCT
exchange or return for all unchanged PRODUCT in CUSTOMER's
inventory.
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(d) All change notifications provided by SELLER to CUSTOMER shall
contain the following information:
(1) Description of change;
(2) Reason for change;
(3) Impact on customer service (i.e., outages, system
downtime);
(4) Price impact, if known;
(5) Effective date of changes; and
(6) Implementation schedule of change.
(e) CUSTOMER may request SELLER to make changes to SELLER's
PRODUCT. Upon receipt of a written document describing in
detail the changes requested by CUSTOMER, SELLER shall respond
in writing to CUSTOMER within thirty (30) days. If SELLER
agrees to undertake such modifications for CUSTOMER, the
response shall quote a proposed implementation schedule and a
cost for such changes to PRODUCT.
6. QUALITY ASSURANCE REPORTING
(a) CUSTOMER has the right to rate SELLER's performance in
accordance with CUSTOMER's internal rating algorithm. Upon
request, CUSTOMER agrees to provide rating information to
SELLER without charge.
(b) If requested by CUSTOMER, SELLER agrees to have a field
reliability and delivery performance tracking system in place
as mutually agreed between CUSTOMER and SELLER, and during the
term of this Agreement, shall continue the tracking system for
as long as CUSTOMER requests. The tracking system shall
provide timely internal data collection enabling SELLER to
arrive at solutions to delivery, quality and reliability
problems related to assembly, subassembly or other repairable
module deficiencies as measured against CUSTOMER's
requirements.
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EXHIBIT H
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
AND
PRODUCT MANUFACTURERS
RESPONSIBILITIES AND OBLIGATIONS
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EXHIBIT H
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
1. SCOPE...............................................................1
[*Confidential treatment requested].
3. PRODUCT REPAIR RETURN ..............................................2
4. REPAIRS BY CUSTOMER ................................................3
5. EMERGENCY REPLACEMENT SERVICE ......................................4
6. CONTINUING AVAILABILITY OF PRODUCT SUPPORT .........................4
7. TECHNICAL SUPPORT FOR PRODUCT.......................................5
8. ON-SITE ASSISTANCE..................................................7
9. PRODUCT MAINTENANCE.................................................7
10. TRAINING............................................................7
11. PRODUCT DOCUMENTATION...............................................7
12. PRODUCT LITERATURE..................................................8
13. COOPERATIVE ADVERTISING.............................................9
14. SUBCONTRACTING .....................................................9
[*Confidential treatment requested].
[*Confidential treatment requested].
[*Confidential treatment requested].
ATTACHMENT D: SELLER's WORKING HOUR SCHEDULE AND CONTACT INFORMATION
[*Confidential treatment requested].
ATTACHMENT F: HARDWARE MAINTENANCE
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ATTACHMENT G: SOFTWARE MAINTENANCE
ATTACHMENT H: TRAINING TERMS AND STANDARDS
[Confidential treatment requested]
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EXHIBIT H
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
1. SCOPE
(a) This Exhibit H governs the SELLER's PRODUCT Warranties,
Services and Support except as to PRODUCT of a particular
manufacturer for which an Exhibit H - is attached.
(b) SELLER's Product Warranties, Services and Support and Product
Manufacturer's Responsibilities and Obligations shall, in
respect to Fujitsu Product, be governed by Exhibit H-2 and, in
the case of other manufacturers for which an Exhibit H -
is attached, by such an exhibit.
* Confidential treatment will be requested
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* Confidential treatment will be requested
3. PRODUCT REPAIR RETURN
(a) CUSTOMER may provide to SELLER an Equipment Repair Order (ERO)
number and/or a purchase order pack list number when returning
PRODUCT to SELLER for repair.
(b) CUSTOMER shall furnish the following information with PRODUCT
returned to SELLER for repairs:
(1) CUSTOMER's name and complete address;
(2) Name(s) and telephone number(s) of CUSTOMER's
employee(s) to contact if there are questions about the
PRODUCT to be repaired;
(3) "Ship to" address for return of repaired PRODUCT, if
different from (1);
(4) A complete list of PRODUCT returned;
(5) The nature of the defect or failure, if known; and
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(6) The PRODUCT warranty status.
(c) All PRODUCT shipped to SELLER for repair shall have repair
tags attached that are supplied by SELLER free of charge or by
CUSTOMER, which shall contain the above stated information.
(d) PRODUCT repaired by SELLER shall have the repair completion
date stenciled or otherwise identified in a permanent manner
in a readily visible location on the PRODUCT and the repaired
PRODUCT shall be returned with a tag or other papers
describing the repairs that have been made. If SELLER
maintains statistical records for repaired PRODUCT, the
information shall be made available to CUSTOMER upon request.
(e) CUSTOMER and SELLER may mutually agree to such return process
as appropriate for PRODUCT(S).
4. REPAIRS BY CUSTOMER
(a) CUSTOMER may elect to repair PRODUCT purchased under this
Agreement. For that PRODUCT, SELLER agrees to furnish initial
and supplemental documentation necessary for the repair of
PRODUCT purchased. Transfer of such documentation shall be at
no cost to CUSTOMER, for the sole use of CUSTOMER in repairing
the PRODUCT, and shall not include the right to sublicense or
transfer such documentation to a third party.
* Confidential treatment will be requested
(c) Repair documentation to be provided to CUSTOMER shall include,
but not limited to, the following:
(1) Circuit drawings and explanations;
(2) Assembly drawings;
(3) Material lists;
(4) Art work drawings;
(5) Component specifications;
(6) Supplier cross references;
H-1-3 CONFIDENTIAL
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(7) Repair procedure specifications; and
(8) Engineering change orders.
(d) Except as provided in Section 1 of this Exhibit, no repair
effected by CUSTOMER under this Agreement shall affect any
warranty afforded to CUSTOMER.
5. EMERGENCY REPLACEMENT SERVICE
(a) If a failure causes a customer service impairment, which
failure is caused by PRODUCT furnished under this Agreement,
SELLER agrees to ship replacement PRODUCT, by the most
expedient means available, within twenty-four (24) hours of
verbal notification by CUSTOMER.
(1) If the defective or nonconforming PRODUCT is in warranty
or is covered under a maintenance agreement, SELLER
shall ship new replacement PRODUCT at no charge. If the
defective or nonconforming PRODUCT is not returned to
SELLER within sixty (60) days from the date of shipment
of the new replacement PRODUCT, SELLER may invoice
CUSTOMER for such new replacement PRODUCT
[*Confidential treatment requested].
(2) If the defective or nonconforming PRODUCT is out of
warranty and is not covered under a maintenance
agreement, SELLER shall ship new replacement PRODUCT and
may invoice CUSTOMER.
(b) In order to schedule shipment of replacement PRODUCT, CUSTOMER
may telephone SELLER. This service shall be available from
SELLER seven (7) days a week, twenty-four (24) hours a day. As
specified in Attachment D, CUSTOMER may contact SELLER at the
telephone numbers listed during normal working hours and after
normal working hours.
6. CONTINUING AVAILABILITY OF PRODUCT SUPPORT
(a) SELLER agrees to offer for sale to CUSTOMER, for the
respective periods during which the PRODUCT is manufactured by
SELLER, and for a period of five (5) years after the PRODUCT
has been manufacturer discontinued, functionally equivalent
replacement and repair parts.
(b) If SELLER is unable or unwilling to supply such parts or
SELLER is unable or unwilling to obtain another source of
supply for CUSTOMER, then such inability shall be considered
noncompliance with this Section and SELLER shall, with neither
obligation nor charge to CUSTOMER, provide CUSTOMER with
drawings or other documents required to either manufacture or
buy such parts and the technical information or any other
rights necessary for CUSTOMER to manufacture or obtain such
parts from other sources, together with a nonexclusive license
to manufacture or purchase such parts for the purpose of
supporting CUSTOMER's customer base.
H-1-4 CONFIDENTIAL
91
(c) The technical information shall include, by example and not by
way of limitation:
(1) Manufacturing drawings and specifications of materials
and parts comprising the replacement and repair parts
and components;
(2) Manufacturing drawings and specifications covering
special tooling and operation;
(3) A detailed list of all commercially available parts and
components purchased by SELLER on the open market,
disclosing the part number, name and location of the
supplier and price lists for the purchase; and
(4) One complete copy of the source code used in the
preparation of any Software licensed or otherwise
acquired by CUSTOMER from SELLER, provided however, that
such source code shall remain the property of SELLER and
shall be separately licensed to CUSTOMER for CUSTOMER's
possession and use exclusively for maintenance of
CUSTOMER's and CUSTOMER's customers' PRODUCT.
(d) Notwithstanding the above, SELLER shall not be under any
obligation to provide source codes for any licensed program
for which SELLER either (i) does not own the source code or
(ii) does not have rights to disclose such source code. In
either event, SELLER shall disclose its licensor or owner of
said source code.
7. TECHNICAL SUPPORT FOR PRODUCT
(a) SELLER shall make available to CUSTOMER telephone technical
support twenty-four (24) hours a day, seven (7) days a week.
There shall be no charge for such technical support. Technical
support and services shall include, but not be limited to, the
provision of the following services:
(1) Distribution of a master SELLER's escalation matrix and
ongoing updates. This matrix must include names, titles
and telephone numbers of individuals within SELLER's
technical support organization for problem response
escalation.
(2) Distribution to GTE's National Operations Center (NOC)
personnel of a monthly activity summary report listing
the number of times CUSTOMER's personnel contacted
SELLER's technical support throughout the month, with
the date and time of contact, disposition of the call
and the source of any identified problems.
(3) Assistance in the diagnosis and resolution of hardware
and Software problems and in the analysis of maintenance
indices. Also assistance in expediting priority
replacement parts or systems required on an emergency
basis.
(4) On-line remote monitoring of sites, as mutually agreed,
to provide assistance in problem identification and
resolution.
H-1-5 CONFIDENTIAL
92
(5) Assistance in the support of the initial implementation
of newly developed PRODUCT and during installation of
significant PRODUCT updates and/or changes.
(6) Support in the preparation and analysis of failure and
discrepancy reports, as required.
(7) Cooperation in providing guidelines and documentation to
ensure the necessary tracking and resolution of
engineering, installation and service complaints.
(b) When CUSTOMER contacts SELLER for technical support, SELLER
must provide caller with a control number if resolution cannot
be completed over the telephone. SELLER shall provide the
caller a verbal status, disposition or resolution of the
reported problem within two (2) hours of notification. At the
discretion of CUSTOMER, the problem may be escalated in
accordance with SELLER's escalation matrix.
(c) SELLER's technical support shall meet the following emergency
resolution intervals:
(1) Total Outage -- 2 Hours
The PRODUCT has stopped
performing the function for
which it was purchased
(providing no service).
(2) Safety Hazard -- 2 Hours
The PRODUCT has a defect
that may pose a safety hazard
to employees or customers.
(3) Partial Outage -- 4 Hours
The PRODUCT is providing
limited service for which it
was purchased.
(4) Loss of Redundancy -- 24 Hours
Any redundant part of the
PRODUCT is operating in a simplex mode.
(5) Customer-Affecting Trouble -- 72 Hours
The PRODUCT is providing
the service for which it was
purchased; however, at times
that service deteriorates.
H-1-6 CONFIDENTIAL
93
8. ON-SITE ASSISTANCE
(a) Prior to any on-site assistance, the solution to specific
problems shall be discussed and resolved, whenever possible,
by telephone, as outlined in Section 7, TECHNICAL SUPPORT FOR
PRODUCT, of this Exhibit. If requested by CUSTOMER, SELLER
agrees to furnish on-site assistance in a time frame as
mutually agreed by the parties and in accordance with SELLER's
prevailing rates, [*Confidential treatment requested].
Current rates, [*Confidential treatment requested],
shall not be changed by SELLER without written notice to
CUSTOMER sixty (60) days in advance of such change, which must
be mutually agreed upon by both parties.
(b) In cases of out-of service emergencies, customer-affecting
failures and/or when other critical factors apply, SELLER
agrees to provide on-site assistance within eight (8) hours of
CUSTOMER request, within the limits of available
transportation.
(c) When requested, SELLER shall provide a qualified individual
familiar with the PRODUCT, at no expense to CUSTOMER, for a
period to be mutually agreed to at the first installation of
newly developed PRODUCT or PRODUCT enhancement, updates or
changes in each designated CUSTOMER area.
9. PRODUCT MAINTENANCE
This Agreement in itself does not purchase any services or maintenance.
Any request for services or maintenance shall only be provided for in
CUSTOMER's purchase order, or through the request procedure set out in
this Agreement.
(a) Pursuant to CUSTOMER's issuance of a purchase order(s) to
SELLER for hardware maintenance, such hardware maintenance
shall be provided in accordance with the terms and conditions
as set forth in Attachment F.
(b) Pursuant to CUSTOMER's issuance of a purchase order(s) to
SELLER for Software maintenance, such Software maintenance
shall be in accordance with the terms and conditions as set
forth in Attachment G.
10. TRAINING
During the term of the Agreement, SELLER shall provide training in
accordance with the terms and standards set forth in Attachment H.
11. PRODUCT DOCUMENTATION
(a) During the term of this Agreement, SELLER shall support
PRODUCT by maintaining and providing, at no charge,
documentation, preferably in a mechanized format, on the
following:
(1) Administration;
(2) Features and technical specifications;
H-1-7 CONFIDENTIAL
94
(3) Detailed engineering and circuit design;
(4) Installation and testing;
(5) Operations, provisioning and translations;
(6) Test and acceptance;
(7) Maintenance and diagnostics; and
(8) Other documentation deemed necessary by CUSTOMER to
support the maintenance and operation of the PRODUCT.
(b) SELLER shall maintain a, record of PRODUCT documentation
provided to CUSTOMER and shall provide updates, at no charge,
in accordance with that record.
(c) All initial documentation and any updates shall be submitted
by SELLER to CUSTOMER for review and preparation of CUSTOMER's
cover sheets and addenda, as required, prior to any
distribution or shipment with PRODUCT purchased by CUSTOMER.
SELLER shall review and reply to any suggested change provided
by CUSTOMER as a result of the review.
(d) Any GTE Practice (GTEP) written by SELLER in support of the
PRODUCT shall be written in accordance with the guidelines
provided by CUSTOMER.
(e) SELLER shall provide, upon CUSTOMER's request, one master
(camera ready) photographic replication of PRODUCT suitable
for use in CUSTOMER's product catalog publications.
(f) SELLER grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of SELLER's PRODUCT
documentation. Such reproduction shall be for CUSTOMER's own
internal use.
12. PRODUCT LITERATURE
(a) SELLER agrees to provide CUSTOMER with reasonable amounts of
PRODUCT literature, at no additional charge, to properly
support SELLER's PRODUCT.
(b) SELLER grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of SELLER's PRODUCT
brochures, or to incorporate portions of SELLER copyrighted
material in PRODUCT brochures or advertising material composed
by CUSTOMER, provided that CUSTOMER shall submit such material
composed by CUSTOMER that incorporates such SELLER copyrighted
material for SELLER's prior approval, which approval shall not
be unreasonably withheld. Such reproduction shall not
H-1-8 CONFIDENTIAL
95
apply to proprietary and/or confidential information and shall
be subject to all applicable copyright laws.
13. COOPERATIVE ADVERTISING
During the term of this Agreement, SELLER shall work in good faith with
CUSTOMER to develop a mutually agreed upon program of cooperative
advertising and/or joint promotion.
14. SUBCONTRACTING
CUSTOMER reserves the right to enlist other contractors for
engineering, installation or maintenance services with respect to
SELLER's PRODUCT.
H-1-9 CONFIDENTIAL
96
CONFIDENTIAL
* Confidential treatment will be requested
97
CONFIDENTIAL
* Confidential treatment will be requested
98
CONFIDENTIAL
* Confidential treatment will be requested
99
ATTACHMENT D
SELLER'S WORKING HOUR SCHEDULE AND
CONTACT INFORMATION
CONFIDENTIAL
100
ATTACHMENT E
CONFIDENTIAL
* Confidential treatment will be requested
101
ATTACHMENT F
HARDWARE MAINTENANCE
CONFIDENTIAL
102
ATTACHMENT G
SOFTWARE MAINTENANCE
CONFIDENTIAL
103
ATTACHMENT H
TRAINING TERMS AND STANDARDS
CONFIDENTIAL
104
ATTACHMENT H
TRAINING TERMS AND STANDARDS
1. SELLER shall provide qualified instructors and the necessary
instruction material, as mutually agreed upon, to train CUSTOMER's
personnel in the marketing, installation, database preparation and
administration, operation, and maintenance of PRODUCT furnished in a
cost effective manner.
2. SELLER shall also establish and/or maintain curricula to include, but
not limited to, the following:
(a) PRODUCT overview and introduction (e.g., features, functions,
benefits, nomenclature, architecture);
(b) Engineering, installation and maintenance;
(c) Basic operation and administration;
(d) Sizing, configuration and PRODUCT ordering;
(e) Planning and budgetary guidelines; and
(f) Other subjects deemed necessary by CUSTOMER to support the
PRODUCT.
3. SELLER shall change, modify, update and/or add training programs as new
PRODUCT features/releases are made available.
4. SELLER shall maintain a technical training facility and provide
CUSTOMER a course listing of all training courses available to
CUSTOMER, notify CUSTOMER of any curriculum changes and identify those
courses that are critical in the support of the PRODUCT. Training shall
be offered on a regular basis and SELLER shall attempt to meet any
reasonable request for additional or unscheduled training required by
CUSTOMER. Additional courses may be scheduled with sixty (60) days
prior written notice.
5. SELLER shall offer to CUSTOMER training classes at no
additional cost, for every $ purchased/licensed by
CUSTOMER from SELLER during each year of this Agreement. CUSTOMER shall
bear the cost of transportation, meals, lodging or any other incidental
expenses of CUSTOMER personnel to, from and during training. All
charges for training, over and above that offered at no charge, shall
be as shown in Attachment 1. Prices shall not be changed by SELLER
without written notice to CUSTOMER ( ) days in advance
of such change, and must be mutually agreed upon by both parties.
6. SELLER agrees to extend an additional % discount on SELLER's
PRODUCT purchased by CUSTOMER for the sole purpose of training CUSTOMER
employees on the use of the PRODUCT.
7. SELLER shall, at no charge to CUSTOMER, provide copies of all training
materials to the CUSTOMER's training department for review of quality
and applicability to CUSTOMER's
H - 1, H - 1 CONFIDENTIAL
105
training requirements. SELLER shall provide a plan for the correction
of deficiencies identified in such review.
8. If requested by CUSTOMER, SELLER shall, at a mutually agreeable cost,
conduct "Train the Trainer" classes on sales, installation,
maintenance, and engineering of SELLER's PRODUCT for CUSTOMER
instructors, at a mutually agreed upon location.
9. SELLER shall provide, upon CUSTOMER request, one master (camera ready)
copy of any sales, installation, maintenance, and engineering
courseware required for CUSTOMER's instructors to train on SELLER's
PRODUCT. The courseware shall contain an instructor guide, student
materials and any additional aides required to present the course.
These master copy materials shall be provided at no cost. SELLER shall
provide CUSTOMER with reproduction rights for these materials. These
materials shall not be distributed to any nonCUSTOMER organization.
10. CUSTOMER may audit SELLER conducted training to ascertain if the
materials are presented in a quality manner. The costs of such audits
shall be at no charge. Any recommendations offered by CUSTOMER shall be
incorporated for future training classes in a timely manner.
11. SELLER certified CUSTOMER instructors shall be afforded the same
consideration as SELLER's instructors in regard to course modifications
and updates. SELLER shall assure that CUSTOMER's instructors have the
same updated material as SELLER's instructors.
12. SELLER shall provide CUSTOMER's instructors, at no cost,
technical/operational support in the form of reasonable telephone
consulting assistance relating to the content of courseware.
13. SELLER shall provide, at the actual cost of reproduction, copies of all
training materials required to support CUSTOMER's embedded base of
PRODUCT that SELLER may have declared as discontinued or obsolete.
H - 1, H - 2 CONFIDENTIAL
106
CONFIDENTIAL
* Confidential treatment will be requested
107
EXHIBIT H-2
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
AND
PRODUCT. MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
FUJITSU
TABLE OF CONTENTS
1. PARTIES...............................................................................................1
* Confidential treatment will be requested
* Confidential treatment will be requested
* Confidential treatment will be requested
5. REPAIRS BY CUSTOMER...................................................................................5
6. EMERGENCY REPLACEMENT SERVICE.........................................................................5
7. CONTINUING AVAILABILITY OF PRODUCT SUPPORT............................................................5
8. TECHNICAL SUPPORT FOR PRODUCT.........................................................................6
9. ON-SITE ASSISTANCE....................................................................................8
10. PRODUCT MAINTENANCE...................................................................................8
11. TRAINING..............................................................................................8
12. PRODUCT DOCUMENTATION.................................................................................9
13. PRODUCT LITERATURE...................................................................................10
14. COOPERATIVE ADVERTISING..............................................................................10
15. SUBCONTRACTING.......................................................................................10
16. LABOR SERVICES.......................................................................................10
17. SOFTWARE LICENSE.....................................................................................10
18. INFRINGEMENT.........................................................................................10
H - 2 - 1 CONFIDENTIAL
108
19. INDEMNIFICATION AND INSURANCE........................................................................10
SIGNATURES...........................................................................................11
* Confidential treatment will be requested
* Confidential treatment will be requested
* Confidential treatment will be requested
* Confidential treatment will be requested
ATTACHMENT F: HARDWARE MAINTENANCE
ATTACHMENT G: SOFTWARE MAINTENANCE
ATTACHMENT H: TRAINING TERMS AND STANDARDS
* Confidential treatment will be requested
ATTACHMENT J: ADDITIONAL MANUFACTURER'S RESPONSIBILITIES AND OBLIGATIONS
H - 2 - 2 CONFIDENTIAL
109
EXHIBIT H-2
SELLER'S PRODUCT WARRANTIES,
SERVICES AND SUPPORT
AND
PRODUCT MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
FUJITSU
1. PARTIES
(a) This EXHIBIT H-2, is made between World Wide Technology, 1nc.
(SELLER), Fujitsu Network Communications, Inc. (Manufacturer) and
GTE Communication Systems Corporation (CUSTOMER) acting through
its GTE Supply Division.
(b) This EXHIBIT H-2, is attached to and made a part of that certain
Product Purchase Agreement No. C971312BC002, dated effective
November 1, 1997 (the "Agreement") between World Wide Technology,
Inc. (SELLER) and GTE Communication Systems Corporation (CUSTOMER)
acting through its GTE Supply Division.
(c) This EXHIBIT H-2, applies to Manufacturer's PRODUCT(S) which are
furnished to CUSTOMER through SELLER.
(d) The PARTIES agree that if there is a conflict between this EXHIBIT
H-2, and the main part of the Agreement, the main part of the
Agreement shall control. This shall not be construed to release
Manufacturer of any of its obligations under the Product Purchase
Agreement No. C951312P0001, dated effective January 1, 1996 with
CUSTOMER.
(e) The PARTIES further agree that Manufacturer's obligations as to
PRODUCT (and services) are only in respect to PRODUCT supplied
directly, or indirectly (through SELLER) by Manufacturer and
services related thereto.
(f) The PARTIES further agree that CUSTOMER may not resell PRODUCT to
any third party that is a current direct account of Manufacturer.
CUSTOMER shall inquire with SELLER and/or Manufacturer as to which
third parties are direct accounts of Manufacturer.
(g) The PARTIES further agree that this Exhibit H-2 shall be amended
following execution of the new Product Purchase Agreement (PPA)
currently being negotiated between CUSTOMER and Manufacturer. Such
amendment(s) shall modify Manufacturer's additional
responsibilities and obligations hereunder consistent with the
parallel provisions of such new PPA or as it may be amended from
time to time.
H - 2 - 1 CONFIDENTIAL
110
* Confidential treatment will be requested
H - 2 - 2 CONFIDENTIAL
111
H - 2 - 3 CONFIDENTIAL
* Confidential treatment will be requested
112
[*Confidential treatment requested].
4. PRODUCT REPAIR RETURN
(a) CUSTOMER may provide to Manufacturer an Equipment Repair Order
(ERO) number and/or a purchase order pack list number when
returning PRODUCT to Manufacturer for repair.
(b) CUSTOMER shall furnish the following information with PRODUCT
returned to Manufacturer for repairs:
(1) CUSTOMER's name and complete address;
(2) Name(s) and telephone number(s) of CUSTOMER's employee(s)
to contact if there are questions about the PRODUCT to be
repaired;
(3) "Ship to" address for return of repaired PRODUCT, if
different from (1);
(4) A complete list of PRODUCT returned;
(5) The nature of the defect or failure, if known; and
(6) The PRODUCT warranty status and the date of manufacture.
(c) All PRODUCT shipped to Manufacturer for repair shall have repair
tags attached that are supplied by Manufacturer free of charge or
by CUSTOMER, which shall contain the above stated information.
(d) PRODUCT repaired by Manufacturer shall have the repair completion
date stenciled or otherwise identified in a permanent manner in a
readily visible location on the PRODUCT and the repaired PRODUCT
shall be returned with a tag or other papers describing the
repairs that have been made. If Manufacturer maintains statistical
H - 2 - 4 CONFIDENTIAL
113
records for repaired PRODUCT, the information shall be made
available to CUSTOMER upon request.
5. REPAIRS BY CUSTOMER
(a) CUSTOMER may elect to repair Manufacturer's PRODUCT purchased
under this Agreement. For that PRODUCT, Manufacturer agrees to
work with CUSTOMER to develop a repair program and furnish initial
and supplemental documentation necessary for the repair of PRODUCT
purchased. Transfer of such documentation shall be at no cost to,
CUSTOMER, for the sole use of CUSTOMER in repairing the PRODUCT,
and shall not include the right to sublicense or transfer such
documentation to a third party.
(b) Manufacturer agrees to sell to CUSTOMER the necessary components
for said repairs at the prices to be mutually agreed upon.
(c) Repair documentation to be provided to CUSTOMER shall be mutually
agreed upon by the parties.
6. EMERGENCY REPLACEMENT SERVICE
(a) If a failure causes a customer service impairment, which failure
is caused by PRODUCT furnished under this Agreement, Manufacturer
agrees to work with SELLER to ship replacement PRODUCT, by the
most expedient means available, within twenty-four (24) hours of
verbal notification by CUSTOMER.
(1) If the defective or nonconforming PRODUCT is in warranty or
is covered under a maintenance agreement, Manufacturer
shall work with SELLER to ship new replacement PRODUCT at
no charge. If the defective or nonconforming PRODUCT is not
returned to Manufacturer within sixty (60) days from the
date of shipment of the new replacement PRODUCT, SELLER may
invoice CUSTOMER for such new replacement PRODUCT
[* Confidential treatment will be requested]
(2) If the defective or nonconforming PRODUCT is out of
warranty and is not covered under a maintenance agreement,
Manufacturer shall work with SELLER to ship new replacement
PRODUCT and SELLER may invoice CUSTOMER [* Confidential
treatment will be requested]
(b) In order to schedule shipment of replacement PRODUCT, CUSTOMER may
telephone Manufacturer. This service shall be available from
Manufacturer seven (7) days a week, twenty-four (24) hours a day.
As specified in Attachment D, CUSTOMER may contact Manufacturer at
the telephone numbers listed during normal working hours and after
normal working hours.
7. CONTINUING AVAILABILITY OF PRODUCT SUPPORT
(a) Manufacturer agrees to offer for sale to CUSTOMER, for the
respective periods during which the PRODUCT is manufactured by
Manufacturer, and for a period of ten (10) years after the PRODUCT
has been manufacturer discontinued, functionally equivalent
replacement and repair parts.
H - 2 - 5 CONFIDENTIAL
114
(b) If Manufacturer is unable or unwilling to supply such parts or
Manufacturer is unable or unwilling to obtain another source of
supply for CUSTOMER, then such inability shall be considered
noncompliance with this Section and Manufacturer shall to the
extent that Manufacturer is able to do so with neither obligation
nor charge to CUSTOMER, provide CUSTOMER with drawings or other
documents required to either manufacture or buy such parts and the
technical information or any other rights necessary for CUSTOMER
to manufacture or obtain such parts from other sources.
(c) The technical information shall include, by example and not by way
of limitation:
(1) Manufacturing drawings and specifications of materials and
parts comprising the replacement and repair parts and
components;
(2) Manufacturing drawings and specifications covering special
tooling and operation;
(3) A detailed list of all commercially available parts and
components purchased by Manufacturer on the open market,
disclosing the part number, name and location of the
supplier; and
(4) One complete copy of the source code used in the
preparation of any Software licensed or otherwise acquired
by CUSTOMER from Manufacturer, provided however, that such
source code shall remain the property of Manufacturer and
shall be separately licensed to CUSTOMER for CUSTOMER's
possession and use exclusively for maintenance of
CUSTOMER's and CUSTOMER's customers' PRODUCT.
(d) Notwithstanding the above, Manufacturer shall not be under any
obligation to provide source codes for any license program for
which Manufacturer either (i) does not own the source code or (ii)
does not have rights to disclose such source code. In either
event, Manufacturer shall disclose its licensor or owner of said
source code.
8. TECHNICAL SUPPORT FOR PRODUCT
(a) Manufacturer shall make available to CUSTOMER telephone technical
support at (1-800/873-3822), twenty-four (24) hours a day, seven
(7) days a week. There shall be no charge for such technical
support. Technical support and services shall include, but not be
limited to, the provision of the following services:
(1) Distribution of a master Manufacturer's escalation matrix
and ongoing updates. This matrix must include names, titles
and telephone numbers of individuals within Manufacturers
technical support organization for problem response
escalation.
(2) Distribution to GTE's National Operations Center (NOC)
personnel of a monthly activity summary report listing the
number of times CUSTOMER's personnel contacted
Manufacturer's technical support throughout the month, with
the date and time of contact, disposition of the call and
the source of any identified problems.
H - 2 - 6 CONFIDENTIAL
115
(3) Assistance in the diagnosis and resolution of hardware and
Software problems and in the analysis of maintenance
indices. Also assistance in expediting priority replacement
parts or systems required on an emergency basis.
(4) On-line remote monitoring of sites, as mutually agreed, to
provide assistance in problem identification and
resolution.
(5) Assistance in the support of the initial implementation of
newly developed PRODUCT and during installation of
significant PRODUCT updates and/or changes.
(6) Support in the preparation and analysis of failure and
discrepancy reports, as required.
(7) Cooperation in providing guidelines and documentation to
ensure the necessary tracking and resolution of
engineering, installation and service complaints.
(b) When CUSTOMER contacts Manufacturer for technical support,
Manufacturer must provide caller with a control number if
resolution cannot be completed over the telephone. Manufacturer
shall provide the caller a verbal status, disposition or
resolution of the reported problem within two (2) hours of
notification. At the discretion of CUSTOMER, the problem may be
escalated in accordance with Manufacturer's escalation matrix.
(c) Manufacturer's technical support shall meet the following
emergency resolution intervals during which period Manufacturer
shall identify a course of action for implementing a remedy:
(1) Total Outage - .................................2 Hours
The PRODUCT has stopped
performing the function for
which it was purchased
(providing no service).
(2) Safety Hazard - ................................2 Hours
The PRODUCT has a defect
that may pose a safety hazard
to employees or customers.
(3) Partial Outage - ...............................4 Hours
The PRODUCT is providing
limited service for which it
was purchased.
(4) Loss of Redundancy -...........................24 Hours
Any redundant part of the
PRODUCT is operating
in a simplex mode.
H - 2 -7 CONFIDENTIAL
116
(5) Customer-Affecting Trouble - ..................72 Hours
The PRODUCT is providing
the service for which it was
purchased; however, at times
that service deteriorates.
9. ON-SITE ASSISTANCE
(a) Prior to any on-site assistance, the solution to specific problems
shall be discussed and resolved, whenever possible, by telephone,
as outlined in Section 8, TECHNICAL SUPPORT FOR PRODUCT, of this
Exhibit H-2. If requested by CUSTOMER, Manufacturer agrees to
furnish on-site assistance in a time frame as mutually agreed by
the parties and in accordance with Manufacturer's prevailing
rates, [* Confidential treatment will be requested] shall not be
changed by Manufacturer without written notice to CUSTOMER and
SELLER ninety (90) days in advance of such change, which must be
mutually agreed upon by both parties.
(b) In cases of out-of service emergencies, customer-affecting
failures and/or when other critical factors apply, Manufacturer
agrees to provide on-site assistance within eight (8) hours of
CUSTOMER request, within the limits of available transportation
and Manufacturer's personnel resources.
(c) When requested, Manufacturer shall provide a qualified individual
familiar with the PRODUCT, at no expense to CUSTOMER, for a period
of three (3) days at the first installation of newly developed
PRODUCT or PRODUCT enhancement, updates or changes in each
designated CUSTOMER area.
10. PRODUCT MAINTENANCE
(a) This Agreement in itself does not purchase any services or
maintenance. Any request for services or maintenance shall only be
provided for in CUSTOMER's purchase order, or through the request
procedure set out in this Agreement.
(b) Pursuant to CUSTOMER's issuance of a purchase order(s) to
Manufacturer for hardware maintenance, such hardware maintenance
shall be provided in accordance with the terms and conditions as
set forth in Attachment F.
(c) Pursuant to CUSTOMER's issuance of a purchase order(s) to
Manufacturer for Software maintenance, such Software maintenance
shall be in accordance with the terms and conditions as set forth
in Attachment G.
11. TRAINING
During the term of the Agreement, Manufacturer shall provide training
in accordance with the terms and standards set forth in Attachment H
[* Confidential treatment will be requested]
H - 2 - 8 CONFIDENTIAL
117
12. PRODUCT DOCUMENTATION
(a) During the term of this Agreement, Manufacturer shall support
PRODUCT by maintaining and providing documentation, preferably in
a mechanized format, on the following:
(1) Administration;
(2) Features and technical specifications;
(3) Detailed engineering and circuit design;
(4) Installation and testing;
(5) Operations, provisioning and translations;
(6) Test and acceptance;
(7) Maintenance and diagnostics; and
(8) Other documentation deemed necessary by CUSTOMER to support
the maintenance and operation of the PRODUCT.
(b) Three (3) sets of site specific documentation including one (1)
set of PRODUCT documentation will be provided at no additional
charge with each order. Otherwise, additional sets of
documentation will be supplied to CUSTOMER at no charge only upon
specific written request therefor.
(c) Manufacturer shall maintain a record of PRODUCT documentation
except Software products provided to CUSTOMER and shall provide
updates, at no charge, in accordance with that record.
(d) All initial documentation and any updates shall be submitted by
Manufacturer to CUSTOMER for review and preparation of CUSTOMER's
cover sheets and addenda, if requested by CUSTOMER prior to any
distribution or shipment with PRODUCT purchased by CUSTOMER.
Manufacturer shall review and reply to any suggested change
provided by CUSTOMER as a result of the review.
(e) Any GTE Practice (GTEP) written by Manufacturer in support of the
PRODUCT shall be written in accordance with the guidelines
provided by CUSTOMER.
(f) Manufacturer shall provide, upon CUSTOMER's request, one master
(camera ready) photographic replication of PRODUCT suitable for
use in CUSTOMER's product catalog publications.
(g) Manufacturer grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of Manufacturer's PRODUCT
documentation. Such reproduction shall be for CUSTOMER's own
internal use.
H - 2 - 9 CONFIDENTIAL
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13. PRODUCT LITERATURE
(a) Manufacturer agrees to provide CUSTOMER with reasonable amounts of
PRODUCT literature, at no additional charge, to properly support
Manufacturer's PRODUCT.
(b) Manufacturer grants to CUSTOMER a fully paid license, at no
additional charge, for the term of this Agreement, to copy or
otherwise reproduce all or portions of Manufacturer's PRODUCT
brochures, or to incorporate portions of Manufacturer copyrighted
material in PRODUCT brochures or advertising material composed by
CUSTOMER, provided that CUSTOMER shall submit such material
composed by CUSTOMER that incorporates such Manufacturer
copyrighted material for Manufacturer's prior approval, which
approval shall not be unreasonably withheld. Such reproduction
shall not apply to proprietary and/or confidential information and
shall be subject to all applicable copyright laws. All
reproductions incorporating copyrighted material shall include
Manufacturer's copyright as proprietary notice on all copies.
14. COOPERATIVE ADVERTISING
During the term of this Agreement, Manufacturer shall work in good
faith with CUSTOMER to develop a mutually agreed upon program of
cooperative advertising and/or joint promotion.
15. SUBCONTRACTING
CUSTOMER reserves the right to enlist other contractors for
engineering, installation or maintenance services with respect to
Manufacturer's PRODUCT.
16. LABOR SERVICES
Should Manufacturer wish to be employed by CUSTOMER and CUSTOMER wish
to employ Manufacturer to perform certain work in connection with the
functions of engineering, construction, installation, or maintenance of
equipment and/or facilities, Manufacturer shall enter into a General
Agreement for Engineering, Construction, Installation, or Maintenance
of Telephone Plant (the "General Agreement") with the telephone company
affiliates of CUSTOMER to set forth the mutual rights and obligations
of the parties and the manner in which such work shall be performed.
17. SOFTWARE LICENSE
Manufacturer shall provide Software license as set forth in Attachment
J.
18. INFRINGEMENT
Manufacturer shall provide infringement indemnity as set forth in
Attachment J.
19. INDEMNIFICATION AND INSURANCE
Manufacturer shall provide indemnification and insurance as set forth
in Attachment J.
H - 2 - 10 CONFIDENTIAL
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Each party represents that it has executed this Agreement through its authorized
corporate representative:
WORLD WIDE TECHNOLOGY, INC. GTE COMMUNICATION SYSTEMS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
------------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: CHAIRMAN & CEO Title: Assistant Vice President-
Contract Management
Date: 1/13/98 Date: 1-9-98
FUJITSU NETWORKING
COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ APPROVED AS TO FORM AND LEGALITY
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ J. R. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Executive Vice President - FNC Attorney, GTE Telephone Operations
Date: 1-9-98 Date: 1/9/98
H - 2 - 11 CONFIDENTIAL
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[*Confidential treatment requested].
CONFIDENTIAL
121
* Confidential treatment will be requested
H-2, A-1 CONFIDENTIAL
122
CONFIDENTIAL
* Confidential treatment will be requested
123
*Confidential treatment will be requested.
H-2, B-1 CONFIDENTIAL
124
CONFIDENTIAL
*Confidential treatment will be requested.
125
EXHIBIT H-2
ATTACHMENT D
MANUFACTURER'S WORKING HOUR SCHEDULE
AND
CONTACT INFORMATION
CONFIDENTIAL
126
EXHIBIT H-2
ATTACHMENT D
MANUFACTURER'S WORKING HOUR SCHEDULE
AND
CONTACT INFORMATION
TELEPHONE CONSULTATION
To facilitate the repair, servicing and support of PRODUCT hereunder, CUSTOMER
may contact Manufacturer at 1-800/873-3822 with any questions that may arise
concerning repair, servicing and support of the PRODUCT, and, if required, to
specify any special packing of PRODUCT that might be necessary adequate
in-transit protection from transportation damage. CUSTOMER may call this number
twenty four (24) hours a day, seven (7) days a week.
▇-▇, ▇-▇ CONFIDENTIAL
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CONFIDENTIAL
*Confidential treatment will be requested.
128
*Confidential treatment will be requested.
▇-▇, ▇-▇ CONFIDENTIAL
129
EXHIBIT H-2
ATTACHMENT F
HARDWARE MAINTENANCE
(To be negotiated at a later date)
CONFIDENTIAL
130
EXHIBIT H-2
ATTACHMENT G
SOFTWARE MAINTENANCE
CONFIDENTIAL
131
EXHIBIT H-2
ATTACHMENT G
SOFTWARE MAINTENANCE
SELLER has granted to CUSTOMER a license (License), effective November 1, 1997,
for CUSTOMER's right to use Manufacturers FLEXR(R)-Plus Software; and
CUSTOMER desires for Manufacturer to provide maintenance services as described
below for the Software (SERVICES) and Manufacturer agrees to provide the
SERVICES in accordance with the terms and conditions of this Attachment.
1. STANDARD MAINTENANCE SERVICES
(a) Scope of Services - During the term of this Agreement,
Manufacturer will provide to CUSTOMER the following SERVICES
for the Software:
(1) Corrections of substantial defects in the Software that
impact its ability to provide service as advertised:
(2) Periodic Baseline Software Updates (BSU) that shall
contain FLEXR-Plus Software enhancements to support all
new features in the Fujitsu lightwave Multiplexers (FLM)
and FACTR-PRODUCT. BSUs ensure that FLEXR Plus Software
will always support the latest features in all
Manufacturer's network elements;
(3) Unlimited telephone support during normal business hours
(8 a.m. to 5 p.m. Central Time, Monday through Friday,
excluding holidays), including dial-up support via modem
to assist CUSTOMER in setup, usage and troubleshooting
Software. CUSTOMER may obtain assistance by calling
Manufacturer's Technical Assistance Center (TAC) at
1-800/873-3822;
(4) Emergency assistance outside of normal business hours
for critical problems. Critical problems are considered
to be those that cause a system failure that results in
the loss of all transaction processing capability and/or
the inability to restart the Software;
(5) Monthly call reports outlining trouble calls and
solutions placed through the Manufacturer TAC. The
tracking of these calls enables report generation
capabilities;
(6) Technical Information Bulletins to provide special
instructions and information;
FLEXR(R) is a registered trademark of Fujitsu Network Communications, Inc.
H-2, G-1 CONFIDENTIAL
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(7) FLEXR Plus Software documentation updates and revisions.
These updates will be in addition to the normal BSU
documentation;
(8) Up to two (2) free on-site visits by Manufacturer's
personnel per year. Each on-site visit is limited to
sixteen (16) working hours. Additional on-site visits
will be billed to CUSTOMER [*Confidential treatment will
be requested.]. Should Manufacturer perform the initial
Software installation, said installation shall count as
one (1) free on-site visit. Unused on-site visits shall-
not accumulate upon the yearly automatic renewal of this
Agreement; and
(9) Off-site tape backup storage to ensure backup of the
initial installation in the event the database becomes
corrupted or the hardware fails. Tape backups will be
made at the time of FLEXR-Plus Software installation and
during the free site visit. In addition, CUSTOMER shall
have the tight to perform its own tape backup at any
time and mail the tape to Manufacturer for storage. Any
tape backup made in the manner should be sent to
Manufacturer at the following address:
Fujitsu Network Transmission Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager-Product Support
(b) Services Not Included. SERVICES do not include:
(1) Charged-for-enhancements that are offered, at
Manufacturer's sole discretion, to CUSTOMERS upon
payment of a license fee;
(2) Custom programming services;
(3) On-site support other than as set forth in subparagraph
1 (a)(9) above;
(4) Training; and
(5) Hardware and related supplies
2. CHARGED-FOR-ENHANCEMENTS
From time to time, at Manufacturer's sole discretion, Manufacturer will
make available to CUSTOMER charged-for-enhancements to the Software
that CUSTOMER may license from Manufacturer upon payment of the license
fee established by Manufacturer.
3. CUSTOM PROGRAMMING SERVICES
Manufacturer will provide custom programming services to CUSTOMER, as
agreed to in a written addendum to this Agreement, signed by both
parties, that specifies the custom programming services to be provided
by Manufacturer and the fee for the services. Custom programming
services shall include, but are not limited to, development of custom
computer programs and installation, training and maintenance with
respect to such computer programs.
H-2, G-2 CONFIDENTIAL
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4. ON-SITE SUPPORT
Manufacturer, upon receipt of a written request from CUSTOMER, will
provide to CUSTOMER on-site support at a mutually agreed upon time. For
on-site visits not covered by paragraph (1)(a)(8), above, CUSTOMER
agrees to pay Manufacturer all costs associate with the provision of
on-site support, including charges for Manufacturer's personnel,
expenses ▇▇▇▇▇▇- -▇, and miscellaneous charges, and taxes pursuant to
paragraph 6(c) below.
5. TRAINING
Upon receipt of a written request from CUSTOMER, Manufacturer will
provide training at a mutually agreed upon time at the office of
Manufacturer in Richardson, Texas, unless Manufacturer agrees to
conduct the training elsewhere. CUSTOMER agrees to pay Manufacturer all
costs associated with this training, including (i) charges for
Manufacturer's instructors to train CUSTOMER's personnel, which shall
include a surcharge for training conducted at CUSTOMER's location, (ii)
charges for travel, lodging and miscellaneous expenses, and (iii) taxes
pursuant to Section 7 below.
*Confidential treatment will be requested.
H-2, G-3 CONFIDENTIAL
134
7. PAYMENT TERMS
Manufacturer shall invoice CUSTOMER for maintenance fees due pursuant
to Section 6 herein. Payment shall be thirty (30) days from the date of
receipt of Manufacturers invoice. CUSTOMER agrees to pay all other
amounts due Manufacturer for SERVICES under this Agreement in
accordance with the payment schedule set forth on Manufacturer's
invoice for the SERVICES.
8. OBLIGATIONS OF CUSTOMER
(a) Customer Contact. Manufacturer requests that. CUSTOMER
identify its CUSTOMER contact designee. To the maximum extent
practicable, CUSTOMER's communications with Manufacturer will
be through the CUSTOMER contact.
(b) Facility and Personnel Access. CUSTOMER agrees to grant
Manufacturer access to CUSTOMER's facilities and personnel
concerned with the operation of the Software to enable
Manufacturer to provide SERVICES.
(c) No Modification of Software. CUSTOMER agrees not to modify or
otherwise alter the Software, unless specifically authorized
by the prior written consent of Manufacturer.
(d) Error Documentation. Upon detection of any error in the
Software, CUSTOMER, as requested by Manufacturer, agrees to
provide Manufacturer with a listing of output and any other
data, including databases and backup systems, that
Manufacturer reasonably may request in order to reproduce
operating conditions to those present when the error occurred.
H-2, G-4 CONFIDENTIAL
135
EXHIBIT H-2
ATTACHMENT H
TRAINING TERMS AND STANDARDS
CONFIDENTIAL
136
EXHIBIT H-2
ATTACHMENT H
TRAINING TERMS AND STANDARDS
1. Manufacturer shall provide qualified instructors and the necessary
instruction material, as mutually agreed upon, to train CUSTOMER's
personnel in the marketing, installation, database preparation and
administration, operation, and maintenance of PRODUCT furnished in a
cost effective manner.
2. Manufacturer shall also establish and/or maintain curricula to include,
but not limited to, the following:
(a) PRODUCT overview and introduction (e.g., features, functions,
benefits, nomenclature, architecture);
(b) Engineering, installation and maintenance;
(c) Basic operation and administration;
(d) Sizing, configuration and PRODUCT ordering;
(e) Planning and budgetary guidelines; and
(f) Other subjects deemed necessary by CUSTOMER to support the
PRODUCT.
3. Manufacturer shall change, modify, update and/or add training programs
as new PRODUCT features/releases are made available.
4. Manufacturer shall maintain a technical training facility and provide
CUSTOMER a course listing of all training courses available to
CUSTOMER, notify CUSTOMER of any curriculum changes. and identify those
courses that are critical in the support of the PRODUCT. Training shall
be offered on a regular basis and Manufacturer shall attempt to meet
any reasonable request for additional or unscheduled training required
by CUSTOMER. Additional courses may be scheduled with sixty (60) days
prior written notice.
*Confidential treatment will be requested.
▇-▇, ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇
137
*Confidential treatment will be requested.
7. Manufacturer shall, at no charge to CUSTOMER, provide copies of all
training materials to the CUSTOMER's training department for review of
quality and applicability to CUSTOMER's training requirements.
Manufacturer shall provide a plan for the correction of deficiencies
identified in such review.
8. If requested by CUSTOMER, Manufacturer shall, at a mutually agreeable
cost, conduct "Train the Trainer" classes on sales, installation,
maintenance, and engineering of Manufacturers PRODUCT for CUSTOMER
instructors, at a mutually agreed upon location.
9. Manufacturer shall provide, upon CUSTOMER request, one master (camera
ready) copy of any sales, installation, maintenance, and engineering
courseware required for CUSTOMER's instructors to train on
Manufacturer's PRODUCT. The courseware shall contain an instructor
guide, student materials and any additional aides required to present
the course. These master copy materials shall be provided at no cost.
Manufacturer shall provide CUSTOMER with reproduction rights for these
materials. These materials shall not be distributed to any nonCUSTOMER
organization.
10. CUSTOMER may audit Manufacturer conducted training to ascertain if the
materials are presented in a quality manner. The costs of such audits
shall be at no charge. Any recommendations offered by CUSTOMER shall be
incorporated for future training classes in a timely manner.
11. Manufacturer certified CUSTOMER instructors shall be afforded the same
consideration as Manufacturer's instructors in regard to course
modifications and updates. Manufacturer shall assure that CUSTOMER's
instructors have the same updated material as Manufacturer's
instructors.
12. Manufacturer shall provide CUSTOMER's instructors, at no cost,
technical/operational support in the form of reasonable telephone
consulting assistance relating to the content of courseware.
13. Manufacturer shall provide, at the actual cost of reproduction, copies
of all training materials required to support CUSTOMER's embedded base
of PRODUCT that Manufacturer may have declared as discontinued or
obsolete.
14. Manufacturer agrees to provide on-site training to CUSTOMER. Courses
may be scheduled with sixty (60) days prior written notice.
[*Confidential treatment will be requested.] Instructor's travel and
living expenses shall be the responsibility of Manufacturer.
Manufacturer shall provide normal classroom non-traffic bearing
equipment.
▇-▇, ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇
138
*Confidential treatment will be requested.
CONFIDENTIAL
139
EXHIBIT H-2
ATTACHMENT J
ADDITIONAL MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
CONFIDENTIAL
140
EXHIBIT H-2
ATTACHMENT J
ADDITIONAL MANUFACTURER'S
RESPONSIBILITIES AND OBLIGATIONS
1. SOFTWARE LICENSE
(a) Manufacturer has granted to CUSTOMER through SELLER a license
for CUSTOMER's right to use software owned by Manufacturer.
(b) If Manufacturer discontinues support of the Software, to the
extent that Manufacturer has such rights, Manufacturer agrees
to furnish to CUSTOMER all source code (in machine readable
format), technical documentation and other information
required for the maintenance, modification or correction of
the most recent version of the Software provided to CUSTOMER.
(c) Purchasers of the Software and related documentation from
CUSTOMER shall be required to execute and shall be subject to
the Software Sublicense Agreement, attached hereto and
incorporated herein as Addendum to this Attachment J, which
requires such customer(s) to abide by the requirements
therein, to use the Software and related documentation solely
for the purpose of provisioning, maintaining, and monitoring
such CUSTOMER's and/or customers network elements, and to
consent to the enforcement of the provisions thereof directly
by Manufacturer. Use of the Software by customer(s) of
CUSTOMER shall be solely in conjunction with the PRODUCT
furnished by Manufacturer to CUSTOMER hereunder and shall be
restricted to provisioning, maintaining, and monitoring such
CUSTOMER's and/or customer's internal network elements.
(d) CUSTOMER shall promptly notify Manufacturer that CUSTOMER has
furnished its customer with Software and documentation
licensed hereunder and shall provide to Manufacturer a copy of
the signed Software Sublicense Agreement.
(e) Upon removal of CUSTOMER's PRODUCT utilizing the Software
licensed hereunder from its customer's premises, CUSTOMER
shall use commercially reasonable efforts to obtain from its
customer a signed form certifying that the Software and
documentation have been returned in their entirety to
CUSTOMER.
(f) No right or license shall be implied by estoppel or otherwise,
other than the rights and license expressly granted in this
Agreement. All ownership rights, title, and interest in the
Software are and shall remain with Manufacturer subject,
however, only to the license specifically granted herein.
(g) Any and all trademarks and trade names that Manufacturer uses
in connection with the license granted hereunder are and
remain the exclusive property of Manufacturer. This Agreement
gives CUSTOMER no right therein except a limited license to
reproduce trademarks and trade names as necessary for and for
the sole purpose of allowing CUSTOMER to fully promote and
market the Software pursuant to the terms of this Agreement.
H-2, J-1 CONFIDENTIAL
141
(h) For any Software acquired directly or indirectly on behalf of
a unit or agency of the United States Government, this
provision applies.
(1) For civilian agencies: Software
(i) Was developed at private expense, is existing
computer Software and the part of the Software
was developed with government funds;
(ii) Is a trade secret of Manufacturer for all
purposes of the Freedom of Information act;
(iii) Is "restricted computer Software" submitted with
restricted rights in accordance with the
subparagraphs (a) through (d) of the Commercial
Licensed Materials-Restricted Rights clause at
52.227-19 of the Federal Acquisition Regulations
(FAR) and its successors and as expressly stated
in Manufacturer's standard commercial agreement
incorporated into the contract or purchase order
between Manufacturer and the government entity,
except that the government agency shall not have
the right to disclose the Software to support
service contractors or their subcontractors
without Manufacturer's prior written consent.
(iv) In all respects, is proprietary data of
Manufacturer; and
(v) Is unpublished and all rights are reserved under
the copyright laws of the United States.
(2) For units of the Department of Defense (DOD): The
Software is licensed only with "Restricted Rights" as
that term is defined in the DOD Supplement to the FAR,
clause 52.227-7013(c)(1)(ii), Rights in Technical Data
and Computer Software and its successors, and use,
duplication or disclosure is subject to the restrictions
set forth therein, with the exception that the
government agency shall not have the right to disclose
the Software to subcontractors or agents of the
government without Manufacturer's prior written consent.
2. MANUFACTURER'S INFRINGEMENT
(a) Manufacturer agrees to indemnify, defend and hold harmless
CUSTOMER and its AFFILIATES, shareholders, directors,
officers, employees, contractors, agents and other
representatives from all demands, claims, actions, causes of
action, proceedings, assessments, losses, damages,
liabilities, settlements, judgments fines, penalties,
interest, cost and expenses (including fees and disbursements
of counsel) arising from or relating to any actual or alleged
infringement or misappropriation of any patent, trademark,
copyright, trade secret or any actual or alleged violation of
any other intellectual property rights arising from or in
connection with the PRODUCT provided or the SERVICES performed
under this Agreement regardless of whether such PRODUCT or
SERVICES form the entire basis or only a portion of the basis
for such claims of infringement, misappropriation or
violation; and if the use or resale shall be enjoined,
Manufacturer shall, at its option, replace
H-2, J-2 CONFIDENTIAL
142
the enjoined PRODUCT(S) with suitable substitute free of the
infringement or misappropriation, or shall procure for
CUSTOMER's benefit a license or other right to use or resell
the same, or shall remove the enjoined PRODUCT(S) and refund
to CUSTOMER the amount paid to SELLER therefor, plus, under
any option, Manufacturer shall indemnify CUSTOMER's direct
(i.e., punitive damages and license fees, royalties or other
right to use fees paid to a third party) damages for such
infringing or misappropriated PRODUCT(S). Notwithstanding
anything to the contrary contained in this Agreement
(including, but not limited to, Section 3, INDEMNIFICATION AND
INSURANCE), the provisions of this Section 2, MANUFACTURER'S
INFRINGEMENT, shall, as to Manufacturer, govern the rights of
CUSTOMER and its AFFILIATES, shareholders, directors,
officers, employees, contractors, agents and other
representatives to indemnification for claims of infringement,
misappropriation or violation of intellectual -property
rights. Manufacturer shall have total control over the
defense, negotiation and settlement of each such case,
provided, however, that CUSTOMER shall be permitted to
participate in such defense negotiation, or settlement by
counsel of its own choosing and expense.
(b) Except for the negligence provisions, the procedures set forth
in Section 3, INDEMNIFICATION AND INSURANCE, shall apply in
the case of any claims of infringement, misappropriation or
violation of intellectual property rights for which
indemnification will be sought. CUSTOMER shall give
Manufacturer prompt written notice of any such claims of
infringement or misappropriation and of all such suits and,
except as otherwise indicated herein, when Manufacturer is
obligated to indemnify CUSTOMER hereunder, full opportunity
and authority to assume the defense thereof, including
appeals, and to settle such suits, and shall furnish upon
Manufacturer's request and at Manufacturer's expense all
disclosed information and reasonable assistance available to
CUSTOMER.
(c) THE FOREGOING STATES THE ENTIRE LIABILITY OF MANUFACTURER WITH
RESPECT TO INFRINGEMENT OF PATENTS, TRADEMARKS OR COPYRIGHTS
BY ANY PRODUCT DELIVERED UNDER THIS AGREEMENT.
3. INDEMNIFICATION AND INSURANCE
(a) Manufacturer shall indemnify, defend, and hold harmless
CUSTOMER and its affiliates, officers, agents, and employees,
from all claims, suits, actions, demands, damages,
liabilities, expenses (including fees and disbursements of
counsel), judgments, settlements and penalties of every kind
based on (i) personal injury, death, or property damage to the
extent any of the foregoing is proximately caused by either
any defective PRODUCT provided by Manufacturer, its officers,
employees, subcontractors or agents, or by the negligent or
willful acts or omissions of Manufacturer, its officers,
employees subcontractors or agents, or (ii) strict liability
in tort or products liability of any other kind in connection
with and PRODUCT provided by Manufacturer, its officers,
employees, subcontractors or agents or the use, resale or
distribution of any such PRODUCT by CUSTOMER; or (iii) for
indemnification for claims of third parties, arising under
Section 2, MANUFACTURER'S INFRINGEMENT. The foregoing
indemnity, to the extent permitted by law, shall apply in the
case of all claims that arise form the negligence, misconduct
or other fault of CUSTOMER, provided, however, that if a claim
is the result of the sole negligence, misconduct or fault of
CUSTOMER or its
H-2, J-3 CONFIDENTIAL
143
AFFILIATES(s) Manufacturer shall have no obligations of
indemnification hereunder. If a claim is the result of the
joint negligence, joint misconduct or joint fault of
Manufacturer and CUSTOMER, the amount of such claim for which
CUSTOMER is entitled to indemnification shall be limited to
that portion of such claim that is attributable to the
negligence, misconduct or other fault of Manufacturer. The
obligations of this provision are in addition to
Manufacturer's obligation to provide insurance and shall not
be limited by any limitation on the amount or type of damages,
compensation or benefits payable by Manufacturer under
Worker's Compensation Acts, Longshoremen and Harborworker's
Act, Disability Benefits Act or any other employee benefit
act.
(b) LIMITATION OF LIABILITY. Notwithstanding any other provision
of this Agreement, Manufacturer's entire liability for
monetary damages under this Agreement shall be as follows:
(1) For real or tangible property damage or personal injury
or death proximately caused by defective PRODUCT
provided by Manufacturer or the negligent or willful
acts of omissions of Manufacturer, the amount of the
direct damages up to an unlimited amount; and
(2) For any payments made by CUSTOMER to CUSTOMER's customer
pursuant to an agreement between CUSTOMER and CUSTOMER's
customer whereby CUSTOMER agrees to indemnify its
customer for such customer's claims for lost revenues
which payments are owed as a result of Manufacturer's
defective PRODUCT or the negligent or willful acts or
omissions of Manufacturer or its employees or agents;
and
(3) For all other loss or damage incurred by CUSTOMER
because of loss of revenue claims of third parties
awarded by a court of competent jurisdiction or
resulting from a settlement of such a claim filed in a
court of competent jurisdiction or resulting from a
settlement of such a claim asserted outside of court
(with all such settlements subject to the prior approval
of Manufacturer and CUSTOMER) and asserted against
CUSTOMER by any third party for CUSTOMER's failure to
provide services to such party as a result of
Manufacturer's defective PRODUCT or the negligent or
willful acts or omissions of Manufacturer or its
employees or agents;
(4) The total liability of Manufacturer to CUSTOMER pursuant
to Sections (b)(2) and (b)(3) shall be limited to a
maxim per occurrence of three percent (3%) of actual
revenues earned by Manufacturer for PRODUCT purchased by
CUSTOMER during the recent twelve (12) month period or
one million two hundred fifty dollars ($1,250,000),
which ever amount is greater.
(5) The total liability of Manufacturer to CUSTOMER for
indemnification for claims of third parties' lost
revenues arising under Section 2, MANUFACTURER'S
INFRINGEMENT, shall be limited to a maxim per occurrence
of five percent (5%) of actual revenues earned by
Manufacturer for PRODUCT purchased by CUSTOMER during
the recent twelve (12) month period or two million five
hundred thousand dollars ($2,500,000), which ever amount
is greater. Manufacturer's liability for CUSTOMER's
H-2, J-4 CONFIDENTIAL
144
direct damages, as defined in Section 2, MANUFACTURER'S
INFRINGEMENT, shall be unlimited.
EXCEPT AS SET FORTH ABOVE, NEITHER PARTY SHALL BE LIABLE
FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES OF ANY. KIND OR NATURE.
(6) CUSTOMER shall promptly notify Manufacturer in writing
of any suits, claims or demands covered by this
indemnity. Promptly after receipt of such notice,
Manufacturer shall assume the defense of such claim with
counsel reasonably satisfactory to CUSTOMER. If
Manufacturer fails, within reasonable time after receipt
of such notice, to assume the defense with counsel
reasonably satisfactory to CUSTOMER. CUSTOMER shall have
the right to undertake the defense, compromise and
settlement of such claim for the account and at the
expense of Manufacturer. Notwithstanding the above, if
CUSTOMER in its sole discretion so elects, CUSTOMER may
also participate in the defense of such actions by
employing separate counsel at its expense, without
waiving Manufacturer's obligation to indemnify or
defend; provided that such participation shall not
adversely affect Manufacturer's ability to defend or
settle the claim. Manufacturer shall not settle or
compromise any claim or consent to the entry of any
judgment without the prior written consent of CUSTOMER,
if such claim or judgment is based upon the joint fault,
negligence or misconduct of Manufacturer and CUSTOMER,
and without an unconditional release of all liability by
each claimant or plaintiff to CUSTOMER with respect to
claims for which Manufacturer is obligated to indemnify
CUSTOMER.
(7) Manufacturer agrees to maintain during the term of this
Agreement all insurance or bonds required by law or this
Agreement, including, but not limited to (i) Worker's
Compensation and related insurance as prescribed by the
law of the state in which Manufacturer's services are
performed or PRODUCT are delivered; (ii) employer's
liability insurance with limits of at least one million
dollars ($1,000,000) for each occurrence, and (iii)
comprehensive general liability insurance including
products liability, and if the use of motor vehicles is
required, comprehensive motor vehicle liability
insurance, each with limits of at least two million
dollars ($2,000,000) for combined single limit for
bodily injury, including death, and/or property damage.
Manufacturer shall cause CUSTOMER to be included as an
additional insured under said policies (as "GTE
Corporation and its affiliates and subsidiaries") and
CUSTOMER's coverage under such policies shall be
primary. Manufacturer shall waive its rights of
subrogation against CUSTOMER for Workers' Compensation
claims. Manufacturer shall, prior to rendering such
services, furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of
such coverage, the expiration date of each policy, and
stating that no material change or cancellation of any
such policy shall be effective unless thirty (30) days'
prior written notice is given to CUSTOMER.
H-2, J-5 CONFIDENTIAL
145
EXHIBIT H-2
ATTACHMENT J
SCHEDULE 1
SOFTWARE SUBLICENSE AGREEMENT
CONFIDENTIAL
146
EXHIBIT H-2
ATTACHMENT J
SCHEDULE 1
SOFTWARE SUBLICENSE AGREEMENT
SOFTWARE SUBLICENSE AGREEMENT
This Software Sublicense Agreement (the "Agreement") is made this day of
, 1996, by and between
("Licensee") and
("Sublicensee"), a
corporation, with offices at
.
The software defined below is sublicensed in accordance with this Agreement and
in accordance with the terms of Agreement No. , as amended thereto, by and
between Licensee and Fujitsu Network Communications, Inc. ("Licensor").
1. GRANT OF LICENSE.
The Software PRODUCT is the specified version of Licensor's FLEXR(R)
and/or FLEXR(R) PLUS (the "Software"). The Software is sublicensed
subject to the terms and conditions of this Agreement. The Software
includes all copies of the software program and its related supporting
materials. Licensee grants Sublicensee a personal, nontransferable and
non-exclusive sublicense to use the Software on a single computer
accessing the basic number of Network Elements of either Licensee or
Sublicensee. Sublicensee may not: (i) distribute, sublicense or copy
any portion of the Software; (ii) modify or prepare derivative works
from the Software; (iii) publicly display visual output of the
Software; (iv) transmit the Software electronically by any means (v)
use the Software in a multiple computer or multiple user arrangement
other than the single-processing or multiprocessing microcomputing unit
accessing the basic number of Network Elements of either Licensee or
Sublicensee. Sublicensee may copy the Software into any
machine-readable form for backup or archival purposes in support of
Sublicensee's use on a single machine. Any portion of the Software
merged into another program will continue to be subject to the terms
and conditions of this Agreement. Sublicensee agrees that the Software
belongs to Licensor, and Sublicensee agrees to keep confidential and
use Sublicensee's best efforts to prevent and protect the contents of
the Software from unauthorized disclosure.
FLEXR(R) is a registered trademark of Fujitsu Network Communications,
Inc.
H-2, J-1 CONFIDENTIAL
147
2. TERMINATION
The license terminates if Sublicensee fails to comply with any term or
condition of this Agreement; Sublicensee agrees upon such termination
to return the Software together with all copies, modifications, and
merged portions in any form to Licensee.
3. CONFIDENTIALITY
Sublicensee shall maintain the Software in strict confidence and shall
keep on all copies the same copyright notice as contained on the
original. All copies of the Software or any part thereof shall be the
property of Licensor. Sublicensee agrees that neither Sublicensee, its
agents nor its employees shall in any manner use, make available, make
known, divulge or communicate any information with respect to the
Software which might enable copying all or any portion of the Software
or the development of similar computer program or system. Sublicensee
agrees to take all appropriate action to protect the confidential and
proprietary information included in the Software, including appropriate
instruction and agreement with its employees.
4. OTHER RESTRICTIONS.
Sublicensee may not revise, reverse engineer, decompile or disassemble
the Software in whole or in part or permit any third party to do or
attempt the same.
*Confidential treatment will be requested.
6. REMEDY.
Licensor and/or Licensee's entire liability and Sublicensee's exclusive
remedy shall be, at Licensee's option, either (a) return of the price
paid, or (b) repair or replacement of the Software that does not meet
[*Confidential treatment will be requested.] and that is returned to
Licensee. This [*Confidential treatment requested] is void if failure
of the Software has resulted from accident, abuse or misapplication.
H-2, J-2 CONFIDENTIAL
148
7. [*Confidential treatment requested].
8. NO LIABILITY FOR CONSEQUENTIAL DAMAGES.
IN NO EVENT SHALL LICENSOR AND/OR LICENSEE BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL OR SPECIAL DAMAGES
OF ANY KIND OR NATURE, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR LOSS OF DATA OR ANY OTHER
LOSS ARISING OUT OF THE USE OR INABILITY TO USE THIS SOFTWARE PRODUCT, EVEN
IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. ENTIRE AGREEMENT
Each party acknowledges that it has read and understood this Agreement and
agrees to be bound by its terms, and that the Agreement, the contracts and
its amendments is the complete and exclusive agreement of the parties and
supersedes all other communications, oral or written, between the parties
relating to the Agreement's subject matter. Any change to this Agreement
shall not be valid unless it is in writing signed by both parties.
AGREED TO:
LICENSEE SUBLICENSEE
By: By:
Printed Name: Printed Name:
Title: Title:
Date: Date:
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▇▇▇▇▇▇▇ ▇
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149
EXHIBIT I
CENTURY COMPLIANCE
1. CENTURY COMPLIANCE
(a) When used in this Exhibit with initial capital letters, the
following terms have the respective meanings given below.
(1) "Procured System" means the computer software, computer
firmware, computer hardware (whether general or special
purpose), documentation, data, and other similar or
related items of the automated, computerized, and/or
software system(s) that are provided by or through
SELLER pursuant to this Agreement, or any component part
thereof, and any services provided by or through SELLER
in connection therewith.
(2) "Calendar-Related" refers to date values based on the
Gregorian calendar, as defined in Encyclopedia
Britannica, 15th edition, 1982, page 602, and to all
uses in any manner of those date values, including
without limitation manipulations, calculations,
conversions, comparisons, and presentations.
(3) "Date Data" means any Calendar-Related data in the
inclusive range January 1, 1900, through December 31,
2050, which the Procured System uses in any manner.
(4) "System Date" means any Calendar-Related data value in
the inclusive range January 1, 1985, through December
31, 2035 (including the natural transition between such
values), which the Procured System shall be able to use
as its current date while operating.
(5) "Century Compliant" means that the Procured System
satisfies the requirements set forth in Sections 1.(b),
1.(c), and 1.(d) below.
(6) "Century Noncompliance" means any failure of the
Procured System to be Century. Compliant.
(b) SELLER represents that, in connection with Calendar-Related
data and Calendar-Related processing of Date Data or of any
System Date, the Procured System will not malfunction, will
not cease to function, will not generate incorrect data, and
will not produce incorrect results.
(c) SELLER further represents that, in connection with providing
Calendar-Related data to and accepting Calendar-Related data
from other automated, computerized, and/or software systems
and users via user interfaces, electronic interfaces, and data
storage, the Procured System represents dates without
ambiguity as to century.
I-1 CONFIDENTIAL
150
(d) SELLER further represents that SELLER has verified through
testing that the Procured System is Century Compliant and that
testing included, without limitation, each of the following
specific dates and the transition to and from each such date:
December 31, 1998; January 1, 1999; September 9, 1999;
September 10, 1999; December 31, 1999; January 1, 2000;
February 28, 2000; February 29, 2000; March 1, 2000; December
31, 2000; January 1, 2001; December 31, 2004; and January 1,
2005.
(e) These representations survive the expiration or earlier
termination of this Agreement.
2. INTERFACING
If the Procured System is a Commercial-Off-The-Shelf (COTS) product, it
shall have the present capability, which can be readily utilized by
CUSTOMER, of providing Calendar-Related data to and accepting
Calendar-Related data from other automated, computerized, and/or
software systems and users in a four-digit CCYY format, where CC are
the two digits expressing the century and YY are the two digits
expressing the year with that century (e.g., 1996, 2003 and 2027).
3. CENTURY NONCOMPLIANCE REMEDY
In the event the Procured System is Century Noncompliant in any
respect, SELLER shall, at no cost to CUSTOMER, promptly correct the
Century Noncompliance and provide the corrected Century Compliant
Procured System to CUSTOMER within ninety (90) days after receipt of a
written request from CUSTOMER, unless otherwise agreed by CUSTOMER in
writing.
4. NONCOMPLIANCE NOTICE
In the event SELLER becomes aware of (i) a possible or an actual
Century Noncompliance in the Procured System or (ii) any international,
governmental, industrial, or other standard (proposed or adopted)
regarding Calendar-Related data and/or processing, or it begins any
significant effort to conform the Procured System to any such standard,
SELLER shall promptly inform CUSTOMER of all relevant information (and
timely provide CUSTOMER updates to such information) with respect to
SELLER's knowledge. SELLER shall respond promptly and fully to
inquiries by GTE (and timely provide updates to any responses provided
to GTE) with respect to (i) any possible Century Noncompliance in the
Procured System or to (ii) any international, governmental, industrial,
or other standards. In the foregoing, the use of "timely" means
promptly after the relevant information becomes known to or is
developed by or for SELLER.
I-2 CONFIDENTIAL