Exhibit No. 99.2
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Software Master Agreement
No. 03032360
Between
Amdocs Software Systems Limited
And
SBC Services, Inc.
i
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
1.0 Preamble.............................................................................................. 1
1.1 Preamble and Effective Date.................................................................. 1
1.2 Term of Agreement............................................................................ 1
1.3 Scope of Agreement........................................................................... 1
2.0 Definitions........................................................................................... 1
2.1 Acceptance................................................................................... 1
2.2 Acceptance Date.............................................................................. 1
2.3 Acceptance Letter............................................................................ 1
2.4 Acceptance Test Period....................................................................... 1
2.5 Acceptance Tests............................................................................. 1
2.6 Amdocs Affiliate............................................................................. 2
2.7 Amdocs Direct Competitors.................................................................... 2
2.8 Amdocs Leadership Council.................................................................... 2
2.9 Cingular..................................................................................... 2
2.10 Computer Program............................................................................ 2
2.11 Concurrent Users............................................................................ 2
2.12 Delivery.................................................................................... 2
2.13 Delivery Date............................................................................... 2
2.14 Design Materials............................................................................ 2
2.15 Designated Site............................................................................. 3
2.16 Designated System........................................................................... 3
2.17 Documentation............................................................................... 3
2.18 Enhancement................................................................................. 3
2.19 [**]License................................................................................. 3
2.20 Error....................................................................................... 3
2.21 Functionality............................................................................... 3
2.22 Harmful Code................................................................................ 3
2.23 Information................................................................................. 4
2.24 Liability................................................................................... 4
2.25 Liquidated Damages.......................................................................... 4
2.26 Maintenance................................................................................. 4
2.27 Maintenance Fee............................................................................. 4
2.28 Major Release............................................................................... 4
2.29 Minor Release............................................................................... 5
2.30 Modification and Modify..................................................................... 5
2.31 MSA......................................................................................... 5
2.32 Named Users................................................................................. 5
2.33 New Release................................................................................. 5
2.34 Notice of Completion........................................................................ 5
2.35 Order....................................................................................... 5
2.36 Permitted Third Parties..................................................................... 5
2.37 Published Specifications.................................................................... 6
2.38 Resolution.................................................................................. 6
2.39 Restoral.................................................................................... 6
2.40 Revision.................................................................................... 6
ii
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
2.41 SBC Affiliate............................................................................... 6
2.42 SBC's Specifications........................................................................ 6
2.43 Service(s).................................................................................. 6
2.44 Severity Level.............................................................................. 6
2.45 Software.................................................................................... 7
2.46 Specifications.............................................................................. 7
2.47 Update...................................................................................... 7
2.48 Users....................................................................................... 7
2.49 Vulnerability............................................................................... 7
2.50 Warranty Period............................................................................. 7
2.51 Work........................................................................................ 7
3.0 GENERAL TERMS......................................................................................... 7
3.1 Acceptance or Rejection...................................................................... 7
3.2 Subcontracting............................................................................... 8
3.3 Amendments and Waivers....................................................................... 9
3.4 Assignment................................................................................... 9
3.5 Termination.................................................................................. 9
3.6 Compliance with Laws......................................................................... 10
3.7 Conflict of Interest......................................................................... 11
3.8 Construction and Interpretation.............................................................. 11
3.9 Cumulative Remedies.......................................................................... 11
3.10 Delivery.................................................................................... 12
3.11 Force Majeure............................................................................... 12
3.12 Form of Order............................................................................... 12
3.13 Governing Law; Dispute Resolution........................................................... 13
3.14 Indemnity................................................................................... 14
3.15 Information................................................................................. 16
3.16 Infringement of Third Party Intellectual Property Rights.................................... 17
3.17 Insurance................................................................................... 20
3.18 Invoicing and Payment....................................................................... 21
3.19 Limitation of Liability..................................................................... 22
3.20 [**]........................................................................................ 23
3.21 MBE/WBE/DVBE (and Appendices)............................................................... 24
3.22 MBE/WBE/DVBE Termination Clause............................................................. 24
3.23 [Intentionally Omitted]..................................................................... 26
3.24 Non-Exclusive Market........................................................................ 26
3.25 Notices..................................................................................... 26
3.26 Order Placed by or on behalf of SBC Affiliates.............................................. 27
3.27 Order of Precedence......................................................................... 27
3.28 Publicity................................................................................... 27
3.29 Quality Assurance........................................................................... 27
3.30 Records and Audits.......................................................................... 29
3.31 Severability................................................................................ 29
3.32 Survival of Obligations..................................................................... 29
iii
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
3.33 Taxes....................................................................................... 30
3.34 Warranties and Representations.............................................................. 32
4.0 Software License...................................................................................... 33
4.1 Order........................................................................................ 33
4.2 License Grant................................................................................ 34
4.3 License Fee.................................................................................. 34
4.4 Limitations on Use........................................................................... 35
4.5 Modification................................................................................. 36
4.6 Source Code Availability..................................................................... 36
4.7 Title........................................................................................ 36
5.0 Support and Maintenance............................................................................... 36
5.1 Error Severity Level Classification.......................................................... 36
5.2 Error Severity Resolution Plan............................................................... 38
5.3 Error Severity Escalation Plan............................................................... 38
5.4 Error Severity [**].......................................................................... 38
5.5 Support During the Warranty Period........................................................... 39
5.6 Maintenance Support Following Expiration of the Warranty Period.............................. 40
Appendix A - Supplier's Price(s)
Appendix B - Acceptance Letter
Appendix C - Supplier's Notice of Completion
Appendix D - Executive Orders and Federal Regulations
Appendix E - Prime Supplier MBE/WBE/DVBE Participation Plan
Appendix F - MBE/WBE/DVBE Results Report
Appendix G - Form of Order
Appendix H - Amendment to Software Escrow Agreement
Appendix I - Non-Disclosure and Confidentiality Agreement
Appendix J - Confidentiality Agreement Between SBC and SBC's
Subcontractors
Appendix K - Confidentiality Agreement Between Amdocs and Amdocs
Subcontractors
iv
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
1.0 Preamble
1.1 PREAMBLE AND EFFECTIVE DATE
This Agreement, effective on December __, 2003 ("Effective Date"), is between
Amdocs Software Systems Limited, an Irish corporation (hereinafter referred to
as "Supplier" or "Amdocs"), and SBC Services, Inc., a Delaware corporation
(hereinafter referred to as "SBC"), each of which may be referred to in the
singular as "Party" or in the plural as "Parties."
1.2 TERM OF AGREEMENT
This Agreement shall remain in effect from the Effective Date for a term ending
five years thereafter unless earlier terminated or canceled as provided in this
Agreement. The Parties may extend the term of this Agreement by mutual agreement
in writing.
1.3 SCOPE OF AGREEMENT
The provisions of this Agreement shall govern all purchases of Software licenses
and certain Services (e.g., maintenance services) made by SBC from Supplier
during the term of this Agreement. SBC may make purchases under this Agreement
by placing Orders with Supplier. The applicable price for certain Software and
Services is provided in Appendix A.
2.0 Definitions
2.1 ACCEPTANCE
"ACCEPT" or "ACCEPTANCE" means SBC's acceptance of the Software pursuant to
Section 3.1.
2.2 ACCEPTANCE DATE
"ACCEPTANCE DATE" means the date on which the Software or Services are Accepted
in accordance with Section 3.1.
2.3 ACCEPTANCE LETTER
"ACCEPTANCE LETTER" means a notice, given by SBC to Supplier upon acceptance of
Software, in accordance with the Section entitled "Acceptance or Rejection."
2.4 ACCEPTANCE TEST PERIOD
"ACCEPTANCE TEST PERIOD" means the length of time specified in an Order for SBC
to perform Acceptance Tests (which period shall not be less than [**] days or
more than [**]days, unless extended pursuant to Section 3.1) during which the
Acceptance Tests are performed.
2.5 ACCEPTANCE TESTS
"ACCEPTANCE TESTS" means tests and demonstrations of the Software in operation
that SBC may perform [**].
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
2.6 AMDOCS AFFILIATE
"AMDOCS AFFILIATE" means any current or future business firm, whether
incorporated or not, which controls, is controlled by or is under common control
with Amdocs, where "control" means the ownership, directly or indirectly, of a
majority interest in an entity by another entity.
2.7 AMDOCS DIRECT COMPETITORS
"AMDOCS DIRECT COMPETITORS" means as of the Effective Date, [**] Amdocs Direct
Competitors, [**] under this Agreement.
2.8 AMDOCS LEADERSHIP COUNCIL
"AMDOCS LEADERSHIP COUNCIL" has the meaning given to such term in the MSA.
2.9 CINGULAR
"CINGULAR" means Cingular Wireless, LLP.
2.10 COMPUTER PROGRAM
"COMPUTER PROGRAM" means a set of instructions or code intended to cause a
computer to produce certain results.
2.11 CONCURRENT USERS
"CONCURRENT USERS" means different Users who are accessing and using a Computer
Program at the same time.
2.12 DELIVERY
"DELIVERY", and its derivatives, means delivery of the Software at SBC's expense
via (i) electronic transfer; (ii) hand delivery of the media in which the
Software is contained; (iii) carrier selected by Amdocs; or (iv) the manner
described in the applicable Order.
2.13 DELIVERY DATE
"DELIVERY DATE" means the date on which the Parties agree Supplier is scheduled
in this Agreement or an Order to complete its Delivery.
2.14 DESIGN MATERIALS
"DESIGN MATERIALS" includes the source code statements for a Computer Program;
all requirements documents, record layouts, outlines, flowcharts, and other
materials intended for use in the preparation of the source code statements; and
all comments included in the source code statements as a reference to other
materials.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
2.15 DESIGNATED SITE
"DESIGNATED SITE" means SBC's building or complex of buildings within which SBC
is authorized to use the Software.
2.16 DESIGNATED SYSTEM
"DESIGNATED SYSTEM" means the particular computer system designated by type,
serial number(s) and location on the applicable Order.
2.17 DOCUMENTATION
"DOCUMENTATION" means written explanations of the intended functionality of the
Software and other written material intended to guide the user in the
installation of the Software, the use of the Software, the Modification of the
Software and the capabilities needed to diagnose and troubleshoot Errors.
Documentation includes written explanations provided on screens displayed by the
Software itself as well as instructions provided in separate user manuals and
training materials.
2.18 ENHANCEMENT
"ENHANCEMENT" means a Modification made to include additional Functionality in a
Computer Program. An Enhancement may otherwise be referred to as an improvement
or an upgrade.
2.19 [**] LICENSE
"[**] LICENSE" means a license to Use Software as set forth in Section 4.2,
[**]; for [**] Licenses[**].
2.20 ERROR
"ERROR" means [**] in the [**] that causes [**], that causes [**], that [**] as
prescribed by the Specifications, or that causes [**] as prescribed by the
Specifications. An Error may otherwise be referred to as a bug or defect.
2.21 FUNCTIONALITY
"FUNCTIONALITY" means a particular result or set of results that a Computer
Program is intended to cause a computer to produce.
2.22 HARMFUL CODE
"HARMFUL CODE" includes any and all instructions designed to prevent a computer
from producing intended results or to cause a computer to produce unintended
results, including, but not limited to the following: instructions designed to
halt or disrupt the operation of a computer program at an arbitrary time ("time
bombs") or upon the execution of an arbitrarily designated instruction ("logic
bombs"); instructions designed to cause the computer to duplicate these
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
instructions and retransmit those instructions to others, with or without
additional disabling effects or instructions designed to cause the computer to
erase its own data files ("viruses/worms"); instructions designed to override
security features and facilitate access to the computer by unauthorized users
("back doors," "trap doors," and "undocumented passwords") or to place the
operation of the computer under the control of unauthorized remote users
("Trojan horses").
2.23 INFORMATION
"INFORMATION" means all ideas, discoveries, concepts, know-how, trade secrets,
techniques, designs, specifications, drawings, sketches, models, manuals,
samples, tools, computer programs, technical information, and other confidential
business, customer or personnel information or data, whether provided orally, in
writing, or through electronic or other means.
2.24 LIABILITY
"LIABILITY" means all legal or contractual responsibility for losses, damages,
expenses, costs, penalties, fines, and fees (except as set forth in an
applicable Order), including reasonable attorneys' fees, arising from a claim or
cause of action related to performance or omission of acts under this Agreement
or any Order, including, but not limited to, claims or causes of actions brought
by third parties.
2.25 LIQUIDATED DAMAGES
"LIQUIDATED DAMAGES" shall mean pre-defined damages described in Sections 3.20
and 5.4 of this Agreement.
2.26 MAINTENANCE
"MAINTENANCE" means the Services provided by Supplier under Article 5.0 of this
Agreement and the applicable Order, which include, but are not limited to; help
desk assistance, telephone assistance, Documentation and Revisions and may
additionally include training and on-site assistance. Participation in customer
or user groups that compare experiences with and/or make suggestions for further
Enhancements to the Software, may also be included.
2.27 MAINTENANCE FEE
"MAINTENANCE FEE" means the fee SBC pays to Supplier for the Maintenance
provided by Supplier as specified in an Order. No Maintenance Fee shall be due
during the Warranty Period.
2.28 MAJOR RELEASE
"MAJOR RELEASE" means a new base version of a Computer Program that Supplier may
provide under this Agreement. A Major Release is generally identified by the
first number that appears to the left of the first decimal point in a version
number.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
2.29 MINOR RELEASE
"MINOR RELEASE" means a Modification made by Supplier to add Enhancements,
Resolutions, Updates, or any combination thereof, to a Major Release. A Minor
Release is generally identified by one or more numbers preceding or following
one or more decimal points to the right of the first decimal point in a version
number.
2.30 MODIFICATION AND MODIFY
"MODIFICATION" and "MODIFY" mean the addition, deletion, correction, and
alteration of code in the Software.
2.31 MSA
"MSA" means the master services Agreement No. 02026713 between SBC and Amdocs
Inc. for Software and Professional Services, dated August 7, 2003, as amended.
2.32 NAMED USERS
"NAMED USERS" means Users identified by a proper name, a unique numerical
identifier, or other unique symbol, and a password.
2.33 NEW RELEASE
"NEW RELEASE" means any change in Functionality to an existing Software program
or new Functionality added to an existing Software program, which Supplier
offers to SBC and other customers.
2.34 NOTICE OF COMPLETION
"NOTICE OF COMPLETION" means a notice, given by Supplier to SBC upon Delivery of
Software or installation of Software, in accordance with the Section entitled
"Acceptance or Rejection."
2.35 ORDER
"ORDER" means such purchase orders, work orders, forms, memoranda or other
written or electronic communications as may be delivered to Supplier for the
purpose of ordering Software and Services hereunder.
2.36 PERMITTED THIRD PARTIES
"PERMITTED THIRD PARTIES" are [**] for the purpose of [**] between them, whether
arising under contract, law, or regulation. Without limiting the generality of
the foregoing, "Permitted Third Parties" may [**]; "Permitted Third Parties" may
also include [**].
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
2.37 PUBLISHED SPECIFICATIONS
"PUBLISHED SPECIFICATIONS" means those descriptions of the Software
Functionality including, without limitation, user manuals, whether summarized or
set forth in complete detail, that Supplier normally provides with the Software,
and any other Supplier publication specified in an Order.
2.38 RESOLUTION
"RESOLUTION" means a Modification that provides a permanent correction of an
Error. A Resolution may also be referred to as a bug fix, correction, fix,
permanent fix, or solution.
2.39 RESTORAL
"RESTORAL" means a Modification made as a temporary measure to compensate for an
Error until a Resolution can be provided. A Restoral may also be referred to as
a bypass, patch, temporary fix, or workaround.
2.40 REVISION
"REVISION" means an update to the Documentation to reflect the addition,
deletion or correction of the previous version of the Documentation. A Revision
may also be referred to as a documentation update.
2.41 SBC AFFILIATE
"SBC AFFILIATE" means any current or future domestic United States business
firm, whether incorporated or not, which controls, is controlled by or is under
common control with SBC, where "control" means the ownership, directly or
indirectly, of a majority interest in an entity by another entity.
Notwithstanding anything to the contrary in the foregoing, [**].
2.42 SBC'S SPECIFICATIONS
"SBC'S SPECIFICATIONS" means any descriptions of SBC's unique Functionality
requirements that are incorporated into an Order, whether expressly stated, by
reference, or by an attachment.
2.43 SERVICE(S)
"SERVICE(S)" means, but is not limited to, any consultation, installation,
removal, training, technical support, repair, and Maintenance (including
associated engineering and programming) provided herein or pursuant to an Order.
2.44 SEVERITY LEVEL
"SEVERITY LEVEL" means the classification assigned by SBC to an Error.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
2.45 SOFTWARE
"Software" means a Computer Program that Supplier will provide pursuant to an
Order under this Agreement and the associated Documentation for that Computer
Program, which Computer Programs will be Amdocs' generally released Computer
Programs.
2.46 SPECIFICATIONS
"SPECIFICATIONS" means descriptions of those Functionalities that are included
in the Software. The term includes specifications in the applicable Order,
Published Specifications, and SBC's Specifications.
2.47 UPDATE
"UPDATE" means generally released Modifications made by Supplier for the purpose
of maintaining the Software's compatibility/interoperability with other
technologies with which the Software is intended to inter-operate.
2.48 USERS
"USERS" means any SBC employees, agents, temporary workers, and contractors
permitted to access and operate the Software.
2.49 VULNERABILITY
"VULNERABILITY" means a condition in the instructions of the Software, whether
consistent with its Specifications or not, that renders the computer on which
the Software is operating susceptible to unauthorized access and use.
2.50 WARRANTY PERIOD
"WARRANTY PERIOD" means a term as set forth in the Order of not less than [**]
beginning on the date when SBC Accepts the Software.
2.51 WORK
"WORK" means all Software and Services, collectively, that Supplier is providing
pursuant to Orders placed under this Agreement.
3.0 GENERAL TERMS
3.1 ACCEPTANCE OR REJECTION
A. After the Delivery of the Software or SBC's receipt of Amdocs'
certificate of installation, if applicable, SBC will start the
system certification testing ("Acceptance Test Period").
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
B. During the Acceptance Test Period, SBC will notify Amdocs
immediately in writing of any inconsistency(ies) with the
Specifications found by SBC, and Amdocs will promptly correct
such inconsistency(ies) and Deliver to SBC the resulting
corrections. SBC shall have the right to test the Software
after such corrected and/or completed Software is re-Delivered
to SBC, and such corrected and/or completed Software shall
thereafter be subject to SBC's acceptance or rejection under
this Section. The Acceptance Test Period shall be [**];
provided, however, [**].
C. If the Software conforms with the terms of the applicable
Order during the Acceptance Test Period, SBC shall sign and
deliver a copy of an Acceptance Letter substantially in the
form of Appendix B ("Acceptance Letter") to Amdocs after the
completion of the Acceptance Test Period. [**] Acceptance
Letter, [**] after the conclusion of the Acceptance Test
Period, [**] the end of such Acceptance Test Period.
D. [**] during the Acceptance Test Period, [**] under the
applicable Order [**] under that Order.
E. In no event shall [**] during the Acceptance Test Period [**]
following the Acceptance Test Period [**].
3.2 SUBCONTRACTING
A. Supplier may subcontract Work or engage an Amdocs Affiliate to
grant licenses pursuant to the terms of this Section 3.2.
Where a portion of the Work is subcontracted or when an Amdocs
Affiliate grants licenses, Supplier remains fully responsible
for performance thereof and shall be responsible to SBC for
the acts and omissions of any licensor, subcontractor and any
temporary worker engaged by Amdocs. Any use of a subcontractor
that is not an Amdocs Affiliate (but not of a temporary
worker) must be either set forth in the applicable Order or
otherwise communicated to SBC before commencement of the Work.
Supplier shall endeavor to obtain and maintain insurance for
acts and omissions of subcontractor in material conformity
with the Section 3.17. The Supplier agrees to execute a
subcontract with every subcontractor that materially conforms
to the terms of this Agreement and, specifically, with the
Section 3.17. Furthermore, Supplier agrees to have its
subcontractors under the Agreement execute the non-disclosure
agreement attached as Appendix K.
B. The Parties agree that the temporary workers and
subcontractors engaged by Amdocs may from time to time require
access to the premises and facilities of SBC for their
participation in the performance of this Agreement and the
Orders issued hereunder, and that if so requested by Amdocs,
SBC shall deal with the personnel of the subcontractors and
with any reasonable requests of the
8
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
subcontractors, in all respects, as if such personnel were the
personnel, and such requests were the requests, of Amdocs.
3.3 AMENDMENTS AND WAIVERS
This Agreement and any Orders placed hereunder may be amended or modified only
through a subsequent written document signed by the Parties; provided, however,
that [**]. An equitable adjustment shall be made if such change substantially
affects the time of performance or the cost of the Work to be performed under
this Agreement. Nothing in this Section 3.3 shall be deemed to limit SBC's right
to terminate Maintenance pursuant to Section 5.6(e). No course of dealing or
failure of either Party to strictly enforce any term, right or condition of this
Agreement shall be construed as a general waiver or relinquishment of such term,
right or condition. A waiver by either Party of any default shall not be deemed
a waiver of any other default.
3.4 ASSIGNMENT
Neither SBC nor Supplier may assign, delegate, subcontract, or otherwise
transfer its rights or obligations under this Agreement except with the prior
written consent of the other Party; provided, however, that [**] this Agreement
and/or its rights or obligations hereunder [**], except that each of Supplier
and SBC may assign its right to receive money due from the other Party hereunder
without the prior consent of the Party obligated to pay money due. It is
expressly agreed that any assignment of a right to receive money due will be
void if (a) the assignor fails to give the non-assigning Party hereto at least
thirty (30) days prior written notice, or (b) such assignment imposes or
attempts to impose upon the non-assigning Party hereto additional costs or
obligations in addition to the payment of such money or attempts to preclude SBC
from dealing solely and directly with Supplier (or its assignee-Affiliate) in
all matters pertaining to this Agreement, or (c) denies, alters or attempts to
alter any rights of the non-assigning Party hereto. Any attempted assignment not
in compliance with the terms of this Section 3.4 will be void.
3.5 TERMINATION
A. Termination for Cause. Subject to the provisions of Section
3.13, either Party may terminate for cause an Order, prior to
Acceptance of the Software under such Order, if the arbitrator
specified in Section 3.13(C) of this Agreement has made a
determination that the other Party has committed a material
breach of the applicable Order, provided that (i) before
terminating, the first Party has given the defaulting Party a
written notice specifying the breach with seventy-five (75)
days right to cure, and (ii) the arbitrator has determined
that the defaulting Party has committed a material breach of
the applicable Order, and has determined the circumstances
and/or terms and conditions which shall constitute a cure of
such material breach. The arbitrator shall retain jurisdiction
over the dispute until such cure has been made. This Section
3.5A shall not be construed as limiting the rights of SBC of
rejection provided under Section 3.1D.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
B. Termination of Affected Orders. The right to terminate an
Order for cause shall also include the right to terminate any
other Order for cause (including orders under other agreements
between SBC and Supplier) which is/are directly affected by
the termination of the initially terminated Order.
C. Termination for Convenience of the Agreement. Either Party may
terminate for convenience this Agreement upon ninety (90) days
prior written notice to the other Party setting forth the
effective date of such termination.
D. Effect of Termination on Orders. The termination of this
Agreement for any reason shall not affect the obligations of
either Party pursuant to any Orders previously executed
hereunder, and the terms and conditions of this Agreement
shall continue to apply to such Orders as if this Agreement
had not been terminated.
3.6 COMPLIANCE WITH LAWS
a. Supplier shall comply with all applicable federal, state, county and
local rules, including, without limitation, all statutes, laws,
ordinances, regulations and codes ("Laws"). Supplier's obligation to
comply with all Laws includes the procurement of permits, certificates,
approvals, inspections and licenses, when needed, in the performance of
this Agreement. Supplier further agrees to comply with all applicable
Executive and Federal regulations, as set forth in "Executive Orders
and Federal Regulations," a copy of which is attached hereto as
Appendix D, and by this reference made a part of this Agreement.
Supplier shall [**] comply with this Section.
b. Supplier shall be responsible for export control - complying with
Export Administration Regulations (EAR) as defined by the U.S. Bureau
of Industry and Security (BIS) and embargo regulations. Each Order must
be reviewed for compliance with the EAR and embargo compliance.
Additionally each access to SBC systems and all applications that the
Supplier will access must be reviewed to ensure that such access is in
compliance with the EAR and embargo regulations.
c. The Parties acknowledge that certain Software and Services to be
provided hereunder may be subject to export controls under the laws and
regulations of the United States, the European Union, the United
Nations and other jurisdictions. No Party shall export or re-export any
such items or any direct product thereof or undertake any transaction
or service in violation of any such laws or regulations. Supplier shall
be responsible for, and shall coordinate and oversee, compliance with
such export laws or embargo regulations in respect of such items
exported or imported by Supplier hereunder.
d. Supplier is familiar with the Foreign Corrupt Practices Act ("FCPA")
and in particular the Act's prohibition on payments, or giving anything
of value, either directly or indirectly, by an American company or a
company that issues United States securities, to an official of a
foreign government or to other forbidden recipients for the purpose of
influencing an act or decision in the official's or recipients
capacity, or inducing the same
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
to influence the foreign government, to assist a company in obtaining
or retaining business.
e. Supplier agrees that no part of Supplier's compensation will be used
for any purpose that could constitute a violation of the FCPA. SBC
agrees that it does not desire and will not request any service or
action by Supplier that would constitute such a violation. Supplier
agrees that it will not hire or in any other way retain a foreign
official, a foreign political party, or official thereof, or official
of an international organization or a candidate for foreign political
office for any purpose relating to or in connection with the Work
Supplier will perform.
3.7 CONFLICT OF INTEREST
Supplier represents and warrants that no officer, director, employee or agent of
SBC has been or will be employed, retained or paid a fee, or otherwise has
received or will receive, any personal compensation or consideration, by or from
Supplier or any of Supplier's officers, directors, employees or agents in
connection with the obtaining, arranging or negotiation of this Agreement or
other documents entered into or executed in connection with this Agreement.
3.8 CONSTRUCTION AND INTERPRETATION
a. The language of this Agreement shall in all cases be construed simply,
as a whole and in accordance with its fair meaning and not strictly for
or against any Party. The Parties agree that this Agreement has been
prepared jointly and has been the subject of arm's length and careful
negotiation. Each Party has been given the opportunity to independently
review this Agreement with legal counsel and other consultants, and
each Party has the requisite experience and sophistication to
understand, interpret and agree to the particular language of the
provisions. Accordingly, in the event of an ambiguity in or dispute
regarding the interpretation of this Agreement, the drafting of the
language of this Agreement shall not be attributed to either Party.
b. Article, Section and paragraph headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. The use of the word "include" shall
mean "includes, but is not limited to." The singular use of words shall
include the plural and vice versa under this Agreement. All obligations
and rights of the Parties are subject to modification as the Parties
may specifically provide in an Order. "Services" and "Software" shall
be treated as "goods" for purposes of applying the provisions of the
Uniform Commercial Code ("UCC"). If there is an inconsistency or
conflict between the terms in this Agreement and in an Order, the terms
in the Order shall take precedence for that Order only.
3.9 CUMULATIVE REMEDIES
Except as specifically identified as a Party's sole remedy, any rights of
cancellation, termination, Liquidated Damages or other remedies prescribed in
this Agreement, are cumulative and are not
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
exclusive of any other remedies to which the injured Party may be entitled.
Neither Party shall retain the benefit of inconsistent remedies.
3.10 DELIVERY
Supplier shall Deliver the Software (including all Restorals, Resolutions,
Updates, and New Releases provided under this Agreement) by remote
telecommunications from the Supplier's computer at Supplier's place of business
to SBC's computer identified in the Order. If Delivery by remote
telecommunications is not practicable, the Supplier shall Deliver the Software
by copying the Software directly onto SBC's computer. Supplier will not transfer
any disks, tapes or other tangible property containing the Software (or any
Restorals, Resolutions, Updates, or New Releases) to SBC unless the Order
expressly requires it to do so. If Supplier provides Documentation in tangible
form, Supplier will Deliver tangible copies of Documentation and Revisions to
SBC as follows: (i) if Supplier Delivers the Software to SBC by remote
telecommunications, Supplier will ship copies to SBC in the manner selected by
SBC, either by U.S. Mail or a private carrier; or (ii) if Supplier Delivers
Software by copying the Software directly onto SBC's computer, Supplier will
Deliver tangible copies of the Documentation to SBC at that time. Supplier will
also deliver a Notice of Completion (Appendix C) to SBC at the time Delivery of
the Software and Documentation is completed.
3.11 FORCE MAJEURE
a. Neither Party shall be deemed in default of this Agreement or any Order
to the extent that any delay or failure in the performance of its
obligations results from any cause beyond its reasonable control and
without its fault or negligence, such as acts of God, acts of civil or
military authority, embargoes, epidemics, war, riots, insurrections,
fires, explosions, earthquakes, floods or strikes ("Force Majeure").
b. If any Force Majeure condition affects Supplier's ability to perform,
Supplier shall give immediate notice to SBC, and SBC may elect to
either: (i) terminate the affected Order(s) or any part thereof, (ii)
suspend the affected Order(s) or any part thereof for the duration of
the Force Majeure condition, with the option to obtain material and
Services to be furnished under such Order(s) elsewhere, and deduct from
any commitment under such Order(s), the quantity of the material and
Services obtained elsewhere or for which commitments have been made
elsewhere, or (iii) resume performance under such Order(s) once the
Force Majeure condition ceases, with an option in SBC to extend any
affected Delivery Date or performance date up to the length of time
that the Force Majeure condition existed. Unless SBC gives written
notice within thirty (30) days after being notified of the Force
Majeure condition, option (ii) shall be deemed selected.
3.12 FORM OF ORDER
Every Order shall be numbered according to SBC's numbering system and include an
effective date. Every Order, whether submitted in electronic or paper form shall
be deemed to incorporate the provisions of this Agreement by reference. An Order
shall establish the term during which the Parties are obliged to perform their
obligations under the Order, which may extend past the
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
term of this Agreement. An Order shall provide such of information as the clause
governing the purchase transaction may require. If any form (including any
electronic form presented on a Web page or other screen display) containing
pre-printed provisions different from the provisions of this Agreement is used,
such different pre-printed terms shall not apply but shall be disregarded for
all purposes, even if such pre-printed terms are deemed to be additional to, and
not inconsistent with, the terms of this Agreement.
3.13 GOVERNING LAW; DISPUTE RESOLUTION
A. This Agreement and performance hereunder shall be interpreted,
construed, and enforced in accordance with the Laws of the
State of Texas, exclusive of its choice of law provisions,
except that, if Texas should at any time enact the Uniform
Computer Information Transactions Act, otherwise referred to
as "UCITA", then this Agreement shall be interpreted,
construed, and enforced in accordance with the laws as they
stood prior to such enactment, as though UCITA had not been
enacted in Texas. The United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this
Agreement.
B. Executive Escalation Process. The Parties shall attempt in
good faith to resolve any dispute arising out of or relating
to this Agreement or any Order promptly by negotiation between
the Parties, including the following escalation process:
SBC's IT Director/Exec Director and Amdocs' Director Between seven (7) and fourteen (14) days
SBC's Asst. Vice President and Amdocs Vice President Between seven (7) and Fourteen (14) days
SBC - Amdocs Leadership Council Between seven (7) and fourteen (14) days
SBC Vice President and Amdocs Division President Between seven (7) and fourteen (14) days
If any escalation level does not resolve any matter to the
Parties' mutual satisfaction, the persons at such level will
jointly brief and provide the next level with all information
and background material necessary to resolve the matter
through negotiations. Such procedure shall not prejudice any
other rights hereunder (e.g., specified time periods shall be
extended as necessary to allow for completion of the
escalation procedure time periods).
C. Binding Arbitration. If the Parties are unable to promptly
resolve a dispute informally as specified in the preceding
Section, the matter shall be escalated to the SBC chief
information officer and the Amdocs chief executive officer.
After such senior management escalation, if the dispute
nonetheless remains unresolved, the Party alleging a material
breach (the "Moving Party") may initiate arbitration by
providing the other Party written notice of its intent to
arbitrate. For the avoidance of doubt, any controversy or
claim arising out of or relating to this Agreement, or any
breach thereof, which cannot be resolved using the
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
executive escalation procedures, shall be finally resolved
under the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") then in effect. If the Parties
are unable to agree upon an arbitrator within twenty (20)
business days of the Moving Party's written notice to
arbitrate, the Moving Party may request the American
Arbitration Association ("AAA") to appoint an arbitrator. The
AAA shall select an arbitrator who can promptly proceed with
and strive to conclude the arbitration as specified herein. If
a dispute is submitted to an arbitrator, it shall be finally
resolved through binding arbitration in New York, New York,
according to the Rules of the AAA, except as modified herein.
The award rendered by the arbitrator shall be final and
binding on the Parties and shall be deemed enforceable in any
court having jurisdiction thereof. The arbitration shall be
heard by a single arbitrator who shall by training, education,
or experience have knowledge of the general subject matter of
this Agreement. The arbitrator shall have only the power to
award damages, injunctive relief and other remedies to the
extent the same would be available in a court of law having
jurisdiction of the matter, except that the arbitrator shall
not have the power to vary from the provisions of this
Agreement. The arbitrator shall promptly commence the
arbitration proceeding with the intent to conclude the
proceedings and issue a written decision stating in reasonable
detail the basis for the award, which must be supported by law
and substantial evidence, as promptly as the circumstances
demand and permit, but generally no later than ten (10) weeks
after the arbitrator's appointment. Each Party acknowledges
that it is giving up judicial rights to a jury trial,
discovery and most grounds for appeal under the foregoing
provision.
D. The prevailing Party shall be entitled to recover from the
non-prevailing Party the reasonable attorneys' fees, expenses
and costs incurred by the prevailing Party in any arbitration.
E. The exercise of any remedy provided in this Agreement does not
waive the right of either Party to resort to arbitration.
F. During dispute resolution proceedings, including arbitration,
the Parties shall continue to perform their obligations under
this Agreement, except for those obligations directly related
to the dispute at issue.
3.14 INDEMNITY
A. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY SHALL
DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY AND ITS
AFFILIATES, (INCLUDING THEIR EMPLOYEES, OFFICERS, DIRECTORS,
AGENTS AND CONTRACTORS) AGAINST ANY LIABILITY ARISING FROM A
PARTY'S OBLIGATIONS UNDER THIS AGREEMENT OR THE MATERIAL OR
SERVICES PROVIDED BY SUPPLIER FOR THIRD PARTY CLAIMS ALLEGING:
(1) INJURIES TO PERSONS, INCLUDING DEATH OR DISEASE; (2)
DAMAGES TO TANGIBLE PROPERTY,
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
INCLUDING THEFT BUT NOT INCLUDING LOSS OF DATA OR PROGRAMMING;
AND (3) FAILURE TO COMPLY WITH ALL LAWS.
B. THE LIABILITY OF THE INDEMNIFYING PARTY SHALL NOT EXTEND TO
COVER ANY LIABILITIES (OR PORTION THEREOF) ARISING FROM THE
ACTIONS OR OMISSIONS OF THE INDEMNIFIED PARTY. THIS INDEMNITY
SHALL SURVIVE THE DELIVERY, INSPECTION, AND ACCEPTANCE OF THE
MATERIAL OR SERVICES.
C. IF ANY SERVICES ARE PERFORMED IN OHIO OR ANY OTHER STATE WHICH
PROVIDES EMPLOYER IMMUNITY FROM EMPLOYEE CLAIMS UNDER WORKERS
COMPENSATION STATUTES OR SIMILAR LAWS, STATUTES OR
CONSTITUTIONAL PROVISIONS, IT IS EXPRESSLY AGREED THAT
SUPPLIER SHALL WAIVE ANY IMMUNITY TO THE EXTENT THAT SUPPLIER
IS CONTRACTUALLY OBLIGATED HEREUNDER TO DEFEND, INDEMNIFY AND
HOLD HARMLESS SBC AND ITS AFFILIATES AGAINST ANY CLAIMS BY
EMPLOYEES OF SUPPLIER, WHICH CLAIMS WOULD OTHERWISE BE SUBJECT
TO IMMUNITY BY OPERATION OF SUCH LAW, STATUTE OR
CONSTITUTIONAL PROVISION (In Ohio, Ohio Revised code 4123.74
and 4123.741 and Section 35, Article, II, Ohio Constitution).
D. THE PARTY SEEKING INDEMNIFICATION ("INDEMNIFIED PARTY") SHALL
NOTIFY THE OTHER PARTY ("INDEMNIFYING PARTY") WITHIN A
REASONABLE PERIOD OF TIME OF ANY WRITTEN CLAIM, DEMAND, NOTICE
OR LEGAL PROCEEDINGS ("CLAIM") FOR WHICH THE INDEMNIFYING
PARTY MAY BE RESPONSIBLE UNDER THIS INDEMNITY OBLIGATION. A
DELAY IN NOTICE SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF
ITS INDEMNITY OBLIGATION EXCEPT TO THE EXTENT IT CAN SHOW IT
WAS PREJUDICED BY THE DELAY.
E. THE INDEMNIFYING PARTY SHALL ASSUME, AT ITS EXPENSE, THE SOLE
DEFENSE OF THE CLAIM THROUGH COUNSEL SELECTED BY THE
INDEMNIFYING PARTY AND SHALL KEEP THE INDEMNIFIED PARTY FULLY
INFORMED AS TO THE PROGRESS OF SUCH DEFENSE. UPON REASONABLE
REQUEST OF THE INDEMNIFYING PARTY AND AT ITS EXPENSE, THE
INDEMNIFIED PARTY SHALL COOPERATE WITH THE INDEMNIFYING PARTY
IN THE DEFENSE OF THE CLAIM. AT ITS OPTION AND EXPENSE, THE
INDEMNIFIED PARTY MAY RETAIN OR USE SEPARATE COUNSEL TO
REPRESENT IT, INCLUDING IN-HOUSE COUNSEL. HOWEVER, IN SUCH
EVENT THE INDEMNIFYING PARTY SHALL NEVERTHELESS MAINTAIN
CONTROL OF THE DEFENSE. SUBJECT TO THE LIMITATION OF LIABILITY
CONTAINED IN SECTION 3.19(B)(1), THE INDEMNIFYING PARTY SHALL
PAY THE FULL AMOUNT OF ANY ADVERSE JUDGMENT, AWARD OR
SETTLEMENT WITH RESPECT TO THE CLAIM AND ALL OTHER REASONABLE
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
EXPENSES OF THE INDEMNIFIED PARTY DIRECTLY RELATED TO THE
RESOLUTION OF THE CLAIM, INCLUDING REASONABLE ATTORNEYS' FEES.
IF THE INDEMNIFIED PARTY IS REQUIRED TO TAKE ANY ACTION TO
ENFORCE ITS INDEMNITY RIGHTS UNDER THIS AGREEMENT OR TO ASSUME
THE DEFENSE OF ANY CLAIM FOR WHICH IT IS ENTITLED TO RECEIVE
AN INDEMNITY UNDER THIS AGREEMENT BECAUSE OF THE INDEMNIFYING
PARTY'S FAILURE TO PROMPTLY ASSUME SUCH DEFENSE, THEN THE
INDEMNIFIED PARTY MAY ALSO RECOVER FROM THE INDEMNIFYING PARTY
ANY REASONABLE ATTORNEYS' FEES (INCLUDING COST OF IN-HOUSE
COUNSEL AT MARKET RATES FOR ATTORNEYS OF SIMILAR EXPERIENCE)
AND OTHER REASONABLE COSTS OF ENFORCING ITS INDEMNITY RIGHTS
OR ASSUMING SUCH DEFENSE.
3.15 INFORMATION
A. Information furnished by SBC.
1. Any Information furnished to Supplier by SBC in connection
with this Agreement, including Information provided under a
separate nondisclosure agreement in connection with discussion
prior to executing this Agreement ("SBC Materials"), shall
remain SBC's property. Unless such Information (a) was
previously known to Supplier free of any obligation to keep it
confidential, or (b) has been or is subsequently made public
by SBC or a third party, without violating a confidentiality
obligation, or (c) is independently invented by Supplier
without reference to the SBC Information, or (d) is required
to be disclosed pursuant to law, regulation, judicial or
administrative order, or governmental request by an entity
authorized by law to make such request, it shall be kept
confidential by Supplier, shall be used only in performing
under this Agreement (and may be disclosed by Amdocs to Amdocs
Affiliates for such purposes), and may not be used for other
purposes, except as may be agreed upon between Supplier and
SBC in writing. Supplier is granted no rights or license to
such Information. All copies of such Information, in written,
graphic or other tangible form, shall be destroyed or returned
to SBC upon the earlier of (i) SBC's request or (ii) upon
termination or expiration of this Agreement. All copies of
such Information in intangible form, such as electronic
records, including electronic mail, shall be destroyed upon
the earlier of (i) SBC's request or (ii) upon termination, or
expiration of this Agreement, and upon request Supplier shall
certify to SBC the destruction of all intangible copies of
such Information.
2. Subject to Section 3.28 Supplier understands and agrees that
any and all field trial results prepared by SBC are and shall
remain the property of SBC and are hereby considered SBC's
proprietary Information. Therefore, it shall be SBC's option,
in its sole discretion, to furnish Supplier copies of such
documents or to discuss such documents with Supplier.
Supplier's use of field
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
trial reports furnished by SBC shall be governed by Section
3.28 in addition to the provisions contained in this Section
3.15.
B. Information furnished by Supplier.
1. Any Information furnished to SBC by Supplier under this
Agreement ("Supplier Information") shall remain Supplier's
property. SBC shall use the same degree of care to prevent
disclosure of the Supplier Information to others as SBC uses
with respect to its own proprietary or confidential
Information. Unless such Information (a) was previously known
to SBC free of any obligation to keep it confidential, or (b)
has been or is subsequently made public by Supplier or a third
party, without violating a confidentiality obligation, or (c)
is independently invented by SBC without reference to the
Supplier Information, or (d) is required to be disclosed
pursuant to law, regulation, judicial or administrative order,
or governmental request by an entity authorized by law to make
such request, the Supplier Information shall be kept
confidential by SBC, shall be used only in accordance with
this Agreement, and may not be used for other purposes, except
as may be agreed upon between Supplier and SBC in writing. All
copies of such Information, in written, graphic or other
tangible form, excluding materials owned by or licensed to
SBC, shall be destroyed or returned to Supplier upon the
earlier of (i) Supplier's request or (ii) upon termination or
expiration of this Agreement. All copies of such Information
in intangible form, such as electronic records, including
electronic mail but excluding materials owned by or licensed
to SBC, shall be destroyed upon the earlier of (i) Supplier's
request or (ii) upon termination, or expiration of this
Agreement, and upon request SBC shall certify to Supplier the
destruction of all intangible copies of such Information.
2. Supplier Information relating to the installation, operation,
repair, or maintenance of the Software and Services which are
the subject of this Agreement shall be considered to be
proprietary or confidential Supplier Information, however SBC
may disclose such Information to others for the purpose of
installing, operating, repairing, replacing, removing and
maintaining the Software for which it was initially furnished
in the manner described as follows. All Supplier Information
[**] provided to SBC [**] solely for purposes of allowing such
vendors to perform their duties on behalf of SBC; prior to
[**], SBC will [**] to this Agreement, [**]; but this
exclusion does not, and shall not be construed to, limit SBC's
rights to disclose its own patented and copyrighted
information or its own confidential Information to any party,
including materials owned in whole or in part by or assigned
to SBC under this Agreement. [**] in the applicable Order
[**]Amdocs to SBC. However, [**].
3.16 INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS
A. Amdocs' Duty to Indemnify SBC.
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
1. Supplier agrees to defend, indemnify and hold SBC harmless
from and against any Liability, including increased damages
for willful infringement, that may result by reason of any
infringement, or claim of infringement, of any trade secret,
or registered U.S. or Canadian patent, trademark, copyright or
other proprietary interest of any third party recognized in
the U.S. or Canada based on the Software or Services furnished
by Supplier to SBC.
2. Supplier represents and warrants that it has made reasonable
independent investigation to determine the legality of its
right to sell or license the Software or provide Services as
specified in this Agreement.
3. In addition to Supplier's other obligations set forth in this
Section, if an injunction or order is obtained against SBC's
use of any Software or Service, or, if, in Supplier's opinion,
any Software or Service is likely to become the subject of a
claim of infringement, Supplier will, at its expense:
i. Procure for SBC the right to continue using the
Software or Service; or
ii. After consultation with SBC, replace or modify the
Software or Service to make it a substantially
similar, functionally equivalent, non-infringing
Software or Service.
4. If the Software or Service is purchased or licensed, and
neither Subsection 3(i) nor (3)(ii) above is reasonably
possible SBC may terminate the applicable Order and require
Supplier to remove, or cause the removal and return of, such
Software or Service from SBC's location and refund any charges
paid by SBC, with a credit for use pro-rated based upon a
usable life based on the historical use by SBC of similar
Computer Programs.
5. In no event will SBC be liable to Supplier for any charges
incurred after the date that SBC no longer uses any Software
or Service because of actual infringement.
6. Supplier agrees to defend or settle, at its own expense, any
action or suit for which it is responsible under this Section.
SBC agrees to notify Supplier promptly of any claim of
infringement and cooperate in every reasonable way to
facilitate the defense. Supplier shall afford SBC, at its own
expense and with counsel of SBC's choice, an opportunity to
participate with Supplier in the defense or settlement of any
such claim, provided however that Supplier shall have sole
control of such defense or settlement.
7. LIMITATIONS. Supplier has no obligation or Liability under
this Section 3.16 with respect to any infringement claim which
is based upon or results from (i) the combination of any
Software with any equipment, device, firmware or software not
furnished by Supplier; (ii) any modification of the Software
by SBC or its contractors; (iii) unauthorized use of the
Software; (iv) SBC's
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
failure to install or have installed changes, revisions or
updates as instructed by Supplier; or (v) compliance by
Supplier with SBC or its contractor's specifications, designs
or instructions. SBC agrees to indemnify, defend and hold
harmless Supplier against any claim involving acts or
omissions by SBC or its contractors as described in items
(i)-(v), inclusive, of this Section 3.16(A)(7).
B. SBC Duty to Indemnify Supplier.
1. SBC agrees to defend, indemnify and hold Supplier
harmless from and against any Liability, including
increased damages for willful infringement, that may
result by reason of any infringement, or claim of
infringement, of any trade secret, or registered U.S.
or Canadian patent, trademark, copyright or other
proprietary interest of any third party recognized in
the U.S. or Canada based on SBC materials furnished
by SBC to Supplier.
2. SBC represents and warrants that it has made
reasonable independent investigation to determine the
legality of its right to license SBC materials as
specified in this Agreement.
3. In addition to SBC's other obligations set forth in
this Section, if an injunction or order is obtained
against Supplier's use of any SBC materials, or, if,
in SBC's opinion, any SBC materials are likely to
become the subject of a claim of infringement, SBC
will, at its expense:
i. Procure the right to continue using the SBC
materials; or
ii. After consultation with Supplier and failure
to obtain (i) after commercially reasonable
efforts, replace or modify SBC materials to
make them substantially similar,
functionally equivalent, non-infringing
materials or Software.
4. SBC agrees to defend or settle, at its own expense,
any action or suit for which it is responsible under
this Section. Amdocs agrees to notify SBC promptly of
any claim of infringement and cooperate in every
reasonable way to facilitate the defense. SBC shall
afford Supplier, at its own expense and with counsel
of Supplier's choice, an opportunity to participate
with SBC in the defense or settlement of any such
claim, provided however that SBC shall have sole
control of such defense or settlement.
5. Limitations. SBC has no obligation or Liability under
this Section 3.16 with respect to any infringement
claim which is based upon or results from (i) the
combination of any SBC materials with any equipment,
device, firmware or software not furnished by SBC;
(ii) any modification of the SBC materials by Amdocs
or its contractors; (iii) unauthorized use of SBC
materials; (iv) Amdocs' failure to install or have
installed changes, revisions or updates
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
as instructed by SBC; or (v) compliance by SBC with Amdocs'
specifications, designs or instructions. Amdocs agrees to
indemnify, defend and hold harmless SBC against any claim
involving acts or omissions by Amdocs or its contractors as
described in items (i)-(v), inclusive, of this Section
3.16(B)(5).
3.17 INSURANCE
A. With respect to performance hereunder, and in addition to
Supplier's obligation to indemnify, Supplier agrees to
maintain, at all times during the term of this Agreement, the
following minimum insurance coverages and limits and any
additional insurance and/or bonds required by law:
1. Workers' Compensation insurance with benefits
afforded under the laws of the state in which the
Services are to be performed and Employers Liability
insurance with minimum limits of $[**] for Bodily
Injury-each accident, $500,000 for Bodily Injury by
disease-policy limits and $[**] for Bodily Injury by
disease-each employee.
2. Commercial General Liability insurance with minimum
limits of: $[**] General Aggregate limit; $[**] each
occurrence sub-limit for all bodily injury or
property damage incurred in any one occurrence; $[**]
each occurrence sub-limit for Personal Injury and
Advertising Injury; $[**] Products/Completed
Operations Aggregate limit, with a $[**]each
occurrence sub-limit for Products/Completed
Operations.
SBC and its Affiliated companies will be listed as an
Additional Insured on the Commercial General
Liability policy.
3. If use of a motor vehicle is required, Automobile
Liability insurance with minimum limits of $[**]
combined single limits per occurrence for bodily
injury and property damage, which coverage shall
extend to all owned, hired and non-owned vehicles.
4. SBC requires that companies affording insurance
coverage have a rating of B+ or better and a
Financial Size Category rating of VII or better
rating, as rated in the A.M. Best Key Rating Guide
for Property and Casualty Insurance Companies.
5. A certificate of insurance stating the types of
insurance and policy limits provided the Supplier
shall be received within a reasonable time after any
request for same by SBC. If a certificate is not
received, Supplier hereby authorizes SBC, and SBC
may, but is not required to, obtain insurance on
behalf of Supplier as specified herein. SBC will
either invoice Supplier for the costs incurred to so
acquire insurance or will reduce by an applicable
amount any amount owed to Supplier.
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
6. The cancellation clause on the certificate of
insurance will be amended to read as follows:
"THE ISSUING COMPANY WILL MAIL THIRTY (30) DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER PRIOR TO
CANCELLATION OR A MATERIAL CHANGE TO POLICY DESCRIBED
ABOVE."
7. The Supplier shall also require all subcontractors
performing Work on the project or who may enter upon
the work site to maintain the same insurance
requirements listed above.
3.18 INVOICING AND PAYMENT
A. Payment for Software shall be as set forth in the applicable
Order; or if no payment schedule is described in the Order,
then as follows: [**]% invoiced upon execution of the Order
and [**]% invoiced upon Acceptance of the Software.
B. The invoice shall specify in detail, where applicable (1)
quantities of each ordered item, (2) unit prices of each
ordered item, (3) the estimated amount of tax per item, (4)
any relevant item and commodity codes known to Supplier, (5)
total amounts for each item, (6) total estimated amount of
applicable sales or use taxes, (7) discounts, (8) shipping
charges, and (9) total amount due. SBC shall pay Supplier in
accordance with the prices set forth in this Agreement within
[**] days of the date of receipt of the invoice. Payment for
material or Services not conforming to the Specifications (in
the event of payments due upon Acceptance), and portions of
any invoice in dispute, may be withheld by SBC until such
problem has been resolved in accordance with the escalation
and arbitration mechanisms described in Section 3.13. If SBC
disputes any invoice rendered or amount paid, SBC shall
promptly so notify Supplier. The Parties shall use their best
efforts to resolve such dispute expeditiously, including
escalation to the SBC - Amdocs Leadership Council if
necessary.
C. Supplier agrees to accept standard, commercial methods of
payment and evidence of payment obligation including, but not
limited to electronic fund transfers in connection with the
purchase of the material and Services.
D. Notwithstanding any other remedies available to Amdocs under
this Agreement or under applicable law, payment in arrears of
more than [**] days shall bear interest from the date payment
is due at the rate of two percent (2%) per annum above the
prime rate published by the New York Wall Street Journal
unless the amount in arrears is disputed in good faith and
until such dispute is resolved. Additionally, and without
affecting the forgoing, SBC failure to pay any undisputed
payment of material amounts under this Agreement within [**]
days after such payment becomes due shall be considered a
material breach of this Agreement by SBC, subject to the
provisions of Section 3.13.
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
E. All amounts invoiced and paid under this Agreement shall be
invoiced and paid in U.S. Dollars.
3.19 LIMITATION OF LIABILITY
A. EXCLUSION OF INDIRECT AND CONSEQUENTIAL DAMAGES. EXCEPT AS
PROVIDED IN THIS SECTION 3.19, NEITHER PARTY SHALL BE LIABLE
TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL,
SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST
REVENUE, LOST DATA OR LOST PROFITS, ARISING OUT OF ANY BREACH
OF THE OBLIGATIONS OF THIS AGREEMENT, REGARDLESS OF THE THEORY
OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. HOWEVER, THE FOLLOWING ELEMENT OF
LOSS OR DAMAGE, IF PROVED, SHALL BE DEEMED DIRECT OR GENERAL
DAMAGES NOT EXCLUDED OR LIMITED BY THE PRECEDING SENTENCE:
1. LIABILITY, LOSS, OR DAMAGE FOR WHICH
ONE PARTY IS OBLIGATED TO INDEMNIFY THE
OTHER UNDER THE SECTIONS ENTITLED
"COMPLIANCE WITH LAWS," "INDEMNITY,"
"INFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS," AND
"INDEPENDENT CONTRACTOR";
2. LOSS OR DAMAGE PROXIMATELY CAUSED BY A
PARTY'S BREACH OF ITS OBLIGATIONS UNDER
THE SECTION ENTITLED "INFORMATION'; AND
3. LIQUIDATED DAMAGES AND CREDITS PROVIDED
UNDER ANY PROVISION OF THIS AGREEMENT.
B. LIMITATION OF DIRECT AND GENERAL DAMAGES. EXCEPT AS PROVIDED
IN THIS SECTION 3.19, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY WITH RESPECT TO ANY ORDER OR THIS AGREEMENT FOR
ANY DAMAGES IN EXCESS OF ONE MILLION DOLLARS WITH RESPECT TO
ANY ORDER, NOR FOR ANY DAMAGES IN EXCESS OF FIVE MILLION
DOLLARS UNDER ALL ORDERS OR THIS AGREEMENT. HOWEVER, THE
FOLLOWING ELEMENTS OF LOSS OR DAMAGE, IF PROVED, SHALL NOT BE
EXCLUDED OR LIMITED BY THE PRECEDING SENTENCES:
1. LIABILITY, LOSS, OR DAMAGE FOR WHICH ONE PARTY IS
OBLIGATED TO INDEMNIFY OR TO REFUND THE OTHER UNDER
THE SECTIONS ENTITLED "COMPLIANCE WITH LAWS,"
"INDEMNITY," "INFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS," AND "INDEPENDENT
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
CONTRACTOR" ; PROVIDED, HOWEVER, THAT, WITH RESPECT
TO LOSS, LIABILITY, OR DAMAGE WHICH MAY BE COVERED BY
LIABILITY INSURANCE OF THE TYPES REQUIRED IN THE
SECTION ENTITLED "INSURANCE," EACH PARTY SHALL AND
HEREBY DOES WAIVE ANY CLAIMS DAMAGES IN EXCESS OF THE
LIMITS ON INSURANCE MENTIONED IN THAT SECTION;
2. LOSS OR DAMAGE PROXIMATELY CAUSED BY A PARTY'S BREACH
OF ITS OBLIGATIONS UNDER THE SECTION ENTITLED
"INFORMATION";
3. [**] SOFTWARE THAT IS REJECTED UNDER SECTION 3.1(D).
4. AMDOCS' LIABILITY [**], WHICH IS, HOWEVER, SEPARATELY
LIMITED AS PROVIDED IN SECTION 3.20 AND SECTION 5.4;
AND
5. SBC's liability to pay for LICENSES GRANTED, Services
rendered OR EXPENSES INCURRED UNDER THIS AGREEMENT OR
ANY ORDER THERETO.
3.20 [**]
[**] the following [**] provisions and procedures:
a. [**] Software and/or Services [**]. The Parties shall [**]. If the Parties
[**] with respect to the [**], (ii) [**] specified hereunder, and/or (iii)
[**] shall [**] shall be [**].
b. Notwithstanding the above paragraph, in the event of [**] pursuant to
Section 3.20(a[**]:
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] shall be [**] and shall be [**]; provided, however, that the amount of
Liquidated Damages taken by SBC shall be [**]. Notwithstanding this Section
3.20(b), there shall [**] under this Section 3.20(b) [**] under this Agreement
[**].
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
3.21 MBE/WBE/DVBE (AND APPENDICES)
A. SBC seeks to give minority-, women- and Disabled Veteran-owned
businesses the maximum opportunity to participate in the performance
of its contracts; current goals are MBE-15%, WBE-5%, and DVBE-1.5%.
Within twelve (12) months of the Effective Date of this Agreement, and
for each year thereafter, Amdocs commits to goals for the
participation of MBE/WBE and DVBE firms (as defined in Section 3.22
below entitled "MBE/WBE/DVBE Termination") as follows: MBE - 4%
percent annual MBE participation; WBE - 2% percent annual WBE
participation; and DVBE - 0% percent annual DVBE participation. These
goals apply to all annual expenditures by any entity pursuant to this
Agreement with Amdocs. Amdocs agrees to meet in good faith to evaluate
with SBC on annual basis whether Amdocs can increase participation
over the life of the Agreement.
3.22 MBE/WBE/DVBE TERMINATION CLAUSE
A. Supplier agrees that falsification or misrepresentation of, or
failure to report a disqualifying change in, the MBE/WBE/DVBE
status of Supplier or any subcontractor utilized by Supplier, or
Supplier's failure to comply in good faith with any MBE/WBE/DVBE
utilization goals established by Supplier, or Supplier's failure
to cooperate in any investigation conducted by SBC, or by SBC's
agent, to determine Supplier's compliance with this Section, will
constitute a material breach of this Agreement. In the event of
any such breach, SBC may, at its option, pursue termination
through the Dispute Resolution procedures of Section 3.13 upon
thirty (30) days notice where such breach remains uncured by
Amdocs at the end of the notice period. Supplier acknowledges and
agrees that SBC shall not be subject to Liability, nor shall
Supplier have any right to suit for damages as a result of such
termination.
B. For purchases under this Agreement by Pacific ▇▇▇▇, Pacific ▇▇▇▇
Directory, Pacific ▇▇▇▇ Mobile Services, Pacific ▇▇▇▇ Information
Services, Pacific ▇▇▇▇ Communications, and any other entity
operating principally in California (collectively "California
Affiliates"), Minority and Women Business Enterprises (MBEs/WBEs)
are defined as businesses which satisfy the requirements of
Subsection D below and are certified as MBEs/WBEs by the
California Public Utilities Commission Clearinghouse
("CPUC-certified").
C. For purchases under this Agreement by any entity that is not a
California Affiliate, MBEs/WBEs are defined as businesses which
satisfy the requirements of Subsection D below and are either
CPUC-certified or are certified as MBEs/WBEs by a certifying
agency recognized by SBC.
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
D. MBEs/WBEs must be at least fifty-one percent (51%) owned by a
minority individual or group or by one or more women (for
publicly-held businesses, at least fifty-one percent (51%) of the
stock must be owned by one or more of those individuals), and the
MBEs/WBEs' management and daily business operations must be
controlled by one or more of those individuals, and these
individuals must be either U.S. citizens or legal aliens with
permanent residence status. For the purpose of this definition,
minority group members include male or female Asian Americans,
Black Americans, Filipino Americans, Hispanic Americans, Native
Americans (i.e., American Indians, Eskimos, Aleuts and Native
Hawaiians), Polynesian Americans, and multi-ethnic (i.e., any
combination of MBEs and WBEs where no one specific group has a
fifty-one percent (51%) ownership and control of the business, but
when aggregated, the ownership and control combination meets or
exceeds the fifty-one percent (51%) rule). "Control" in this
context means exercising the power to make policy decisions.
"Operate" in this context means actively involved in the
day-to-day management of the business and not merely acting as
officers or directors.
E. For purchases under this Agreement by California Affiliates, DVBEs
are defined as business concerns that satisfy the requirements of
Subsection G below and are certified as DVBEs by the California
State Office of Small and Minority Business (OSMB). The DVBE must
be a resident of the State of California, and must satisfy the
requirements of Subsection G below.
F. For purchases under this Agreement by any entity that is not a
California Affiliate, DVBEs are defined as any business concern
that satisfies the requirements of Subsection G below and is
either a defined DVBE for purchases by California Affiliates, or
is certified as a DVBE by a certifying agency recognized by SBC.
G. The DVBE must be (i) a non publicly-owned enterprise at least
fifty-one percent (51%) owned by one or more disabled veterans; or
(ii) a publicly-owned business in which at least fifty-one percent
(51%) of the stock is owned by one or more disabled veterans; or
(iii) a subsidiary which is wholly owned by a parent corporation,
but only if at least fifty-one percent (51%) of the voting stock
of the parent corporation is owned by one or more disabled
veterans; or (iv) a joint venture in which at least fifty-one
percent (51%) of the joint venture's management and control and
earnings are held by one or more disabled veterans. In each case,
the management and control of the daily business operations must
be by one or more disabled veterans. A disabled veteran is a
veteran of the military, naval or air service of the United States
with a service-connected disability. "Management and control" in
this context means exercising the power to make policy decisions
and actively involved in the day-to-day management of the business
and not merely acting as officers or directors.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
3.23 [INTENTIONALLY OMITTED]
3.24 NON-EXCLUSIVE MARKET
It is expressly understood and agreed that this Agreement does not grant
Supplier an exclusive privilege to provide to SBC any or all materials and
services of the type described in this Agreement, nor does it require SBC to
purchase or license any material or services. It is understood, therefore, that
SBC may contract with other manufacturers and suppliers for the procurement or
trial of comparable material and services and that SBC may itself perform any
services of the type described herein.
3.25 NOTICES
a. Except as otherwise provided in this Agreement or an applicable Order,
all notices or other communications hereunder shall be deemed to have
been duly given when made in writing and either (i) delivered in
person, or (ii) when received, if provided via electronic
communications, including, but not limited to, electronic mail and
facsimile communications, or (iii) when received, if provided by an
overnight or similar delivery service, or (iv) when received, if
deposited in the United States Mail, postage prepaid, return receipt
requested, and addressed as follows:
To: AMDOCS SOFTWARE SYSTEMS LIMITED
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attn: General Manager
To: SBC Services Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Director, Enterprise Application Software Contracting
with copy to:
SBC Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Counsel
b. The addresses and facsimile telephone numbers to which notices or
communications may be given by either Party may be changed by written
notice given by such Party to the other pursuant to this Section.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
3.26 ORDER PLACED BY OR ON BEHALF OF SBC AFFILIATES
SBC Affiliates may place Orders with Supplier that incorporate the provisions of
this Agreement, or SBC may place an Order on behalf of an SBC Affiliate. In
either case, when incorporating the provisions of this Agreement into any such
Order, the name "SBC" shall be deemed to refer to such SBC Affiliate, in lieu of
SBC Services, Inc. An SBC Affiliate will be responsible for its own obligations
under such Order, including, but not limited to, all charges incurred in
connection with such Order. Nothing in this Agreement will be [**] anything in
this Agreement [**].
3.27 ORDER OF PRECEDENCE
In the event of any conflict or inconsistency between provisions of this
Agreement and the provisions of an Order the following order precedence shall
control: (i) the Order; (ii) the Agreement; but only for purposes of such Order
and, except for such Order, the terms and conditions of this Agreement shall not
be deemed to be waived, amended or modified.
3.28 PUBLICITY
Supplier shall not use SBC's or its affiliates' names or any language, pictures,
trademarks, service marks or symbols which could, in SBC's judgment, imply SBC's
or its affiliates' identity or endorsement by SBC, its affiliates or any of its
employees in any (i) written, electronic or oral advertising or presentation or
(ii) brochure, newsletter, book, electronic database or other written matter of
whatever nature, without SBC's prior written consent (hereafter the terms in
subsections (i) and (ii) of this Section shall be collectively referred to as
"Publicity Matters"). Supplier will submit to SBC for written approval, prior to
publication, all Publicity Matters that mention or display SBC's or its
affiliates' names, trademarks or service marks, or that contain any symbols,
pictures or language from which a connection to said names or marks may be
inferred or implied.
3.29 QUALITY ASSURANCE
For the term of this Agreement, Amdocs software development
organization(s) will have a quality program in place.
A. [**]ASSESSMENT. Amdocs' software development organization(s)
that are supporting SBC software development will endeavor in
good faith to apply for, schedule, and complete a [**]
Assessment within [**] years from the Effective Date, as
prescribed by the [**]. Amdocs' Maintenance resources shall
follow the SBC quality assurance program and process.
B. SUPPLIER PERFORMANCE PROGRAM. Both Parties hereby agree to
participate in the Supplier Performance Program ("Program")
described below. The Program will assist Amdocs in
self-identifying areas of deficiency that may develop in
Amdocs' performance as it relates to fulfilling its
obligations under this Agreement. Participation in or use of,
the Program does not negate or diminish Amdocs'
responsibilities as it relates to its requirements to perform
its obligation
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
as defined elsewhere in this Agreement nor does it negate,
diminish or waive SBC's rights or remedies as defined
elsewhere in this Agreement. If there is a conflict between
the Program and other sections of this Agreement the other
sections of this Agreement shall control. The Parties intent
is that documentation requirements under the Program will be
satisfied by other documentation obligations provided for
elsewhere in this Agreement. Accordingly, the Parties do not
anticipate that compliance with the Program will impose upon
Amdocs obligations above that otherwise provided for in this
Agreement.
Amdocs shall:
1. Monitor its performance relative to certain mutually
agreed measurable performance indices such as Software
performance, service performance, and on time Delivery.
Performance measurements collected for the purposes of the
Program will be defined by the Parties from time to time.
2. Collect and report to SBC the data relating to Amdocs'
performance. The data must be entered by Amdocs in SBC's
Amdocs Website (currently ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) in a
format that is designated by SBC. Data will be collected
and reported periodically.
3. Conduct a self-evaluation of its performance based on the
analysis of the data reported. In those areas where
Amdocs' performance deviates from agreed and identified
acceptable performance levels, Amdocs shall develop and
submit specific performance improvement plans to SBC
detailing Amdocs' plans to correct such deficiencies.
4. Cooperate fully with SBC's supplier performance management
team to coordinate Amdocs' activities as they relate to
the Program. This includes but is not limited to
participation in planning meetings, audits, feedback
sessions, and issue resolution.
SBC shall:
1. Work with Amdocs to define by mutual agreement the data
requirements that Amdocs will monitor and report.
2. Provide Amdocs with access to SBC's supplier website for
the purposes of entering Amdocs' data.
3. Generate performance reports summarizing the data and
provide Amdocs with periodic feedback evaluating its
performance. SBC's supplier performance management team
will assist Amdocs in resolving any internal SBC issues
that may impact Amdocs' performance.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
4. Cooperate with Amdocs to address areas in which the
Parties agree that SBC can help to improve Amdocs' ability
to meet agreed performance metrics.
3.30 RECORDS AND AUDITS
Supplier agrees that it will:
A. Maintain complete and accurate records of all amounts billable
to and payments made by SBC related to Software and Services
provided by Supplier to SBC, in accordance with Generally
Accepted Accounting Principles and Practices, uniformly and
consistently applied in a format that will permit audit;
B. Retain such records and reasonable billing detail for a period
of at least [**] years from the date of final payment for
Software and Services;
C. Provide reasonable supporting documentation to SBC concerning
any disputed invoice amount within thirty (30) calendar days
after receipt of written notification of such dispute; and
D. Provide all records required under this Section 3.30 for audit
by a mutually acceptable independent third party auditor (who
shall have signed a confidentiality agreement with Amdocs
substantially in the form of Appendix I) appointed by SBC at
its expense, on reasonable advance notice, no more than once
in any twelve (12) month period, and during normal business
hours, either (i) in the event of a dispute between SBC and
Amdocs hereunder, or (ii) for the purpose of verifying that
Amdocs is complying with its obligations hereunder.
3.31 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable, such
invalidity or non-enforceability shall not invalidate or render unenforceable
any other portion of this Agreement. The entire Agreement will be construed as
if it did not contain the particular invalid or unenforceable provision(s), and
the rights and obligations of Supplier and SBC will be construed and enforced
accordingly.
3.32 SURVIVAL OF OBLIGATIONS
Obligations and rights in connection with this Agreement, which by their nature
would continue beyond the termination, cancellation or expiration of this
Agreement, including, but not limited to, those in the Sections entitled
"Compliance with Laws," "Indemnity," "Information," "Infringement of Third Party
Intellectual Property Rights," "License Fee," "Publicity," "Severability,"
"Software License", "Support and Maintenance," and "Warranties and
Representations," will survive the termination, cancellation or expiration of
this Agreement.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
3.33 TAXES
A. Supplier's rates, fees, and other charges set forth in the
Agreement and any Order excludes taxes that Supplier may be
called upon to pay as a result of the transaction, such as
U.S. taxes that are levied upon or measured by the value of
sale, services, or license furnished under an Order, or any
price or fee paid by SBC under this Agreement, such as a sales
tax, service tax, excise tax, and other similar taxes
(collectively "excluded taxes"). SBC is not obligated to pay
or to reimburse Supplier for Supplier's income taxes, U.S.
withholding taxes, non-U.S. withholding taxes, or for any
other taxes that would not be payable if Supplier were a U.S.
licensor (including value added taxes imposed by jurisdictions
outside the U.S.), which are expressly excepted from the
category of excluded taxes. Supplier shall invoice SBC for
excluded taxes as a separate item on the invoice, listing the
taxing jurisdiction imposing the tax and SBC shall pay or
reimburse Supplier for such excluded tax when SBC pays its
invoice. Non-taxable charges must be separately stated. SBC
agrees to pay all applicable excluded taxes to Supplier.
Supplier agrees to remit such excluded taxes to the
appropriate taxing authorities.
Alternatively, each Party agrees that it will honor properly
prepared tax exemption certificates or other mandated document
evidencing a Party's exemption from payment, which may be
submitted, pursuant to the relevant tax provisions of the
taxing jurisdiction.
Should any non-excluded tax be imposed in connection with
transactions governed by the Agreement and any Order, Supplier
shall accept the rate, fee, or other charge set forth in the
Agreement or any Order net of any non-excluded tax as full
settlement of the invoice. In no event shall SBC be required
to "gross-up" or increase any payment to Supplier under this
Agreement due to such payment being subject to a lawfully
levied withholding tax.
Supplier agrees to provide to SBC all relevant tax information
and documents required by statute, regulation, administrative
pronouncement or tax treaty by reason that Supplier is an
Irish Corporation.
B. Except as stated in subparagraph C of this Section, Supplier
agrees to pay, and to hold SBC harmless from and against, any
penalty, interest, additional tax, or other charge that may be
levied or assessed as a result of the delay or failure of
Supplier, to pay any tax or file any return or information
required by law, rule or regulation or by this Agreement to be
paid or filed by Supplier. [**].
C. Upon SBC's request, the Parties shall consult with respect to
the basis and rates upon which Supplier shall pay any taxes or
fees for which SBC is obligated to reimburse Supplier under
this Agreement. If SBC determines that in its opinion any such
taxes or fees are not payable, or should be paid on a basis
less than the full price or at rates less than the full tax
rate, Supplier shall make payment in
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
accordance with such determinations and SBC shall be
responsible for such determinations. If collection is sought
by the taxing authority for a greater amount of taxes than
that so determined by SBC, Supplier shall promptly notify SBC.
Supplier shall cooperate with SBC and consider any request to
contest such determination, but SBC shall be responsible and
shall reimburse Supplier for any tax, interest, or penalty in
excess of its determination. If SBC desires to request
Supplier to contest such collection, SBC shall promptly notify
Supplier. If SBC determines that in its opinion it has
reimbursed Supplier for sales or use taxes in excess of the
amount that SBC is obligated to reimburse Supplier, SBC and
Supplier shall consult to determine the appropriate method of
recovery of such excess reimbursements. Supplier shall credit
any excess reimbursements against tax reimbursements or other
payments due from SBC if and to the extent Supplier makes
corresponding adjustments to its payments to the relevant tax
authority. At SBC's request, Supplier will consider timely
filing any claims for refund and any other documents required
to recover any other excess reimbursements, and shall promptly
remit to SBC all such refunds and interest received.
D. If any taxing authority advises Supplier that it intends to
audit Supplier with respect to any taxes for which SBC is
obligated to reimburse Supplier under this agreement, Supplier
shall (i) promptly so notify SBC, (ii) afford SBC an
opportunity to participate with Supplier in such audit with
respect to such taxes and (iii) keep SBC fully informed as to
the progress of such audit. Each Party shall bear its own
expenses with respect to any such audit, and the
responsibility for any additional tax, penalty or interest
resulting from such audit shall be determined in accordance
with the applicable provisions of this Section. Supplier's
failure to comply with the notification requirements of this
Section shall relieve SBC of its responsibility to reimburse
Supplier for taxes only if Supplier's failure materially
prejudiced SBC's ability to contest imposition or assessment
of those taxes.
E. If either Party is audited by a taxing authority or other
governmental entity, the other Party agrees to reasonably
cooperate with the Party being audited in order to respond to
any audit inquiries in an appropriate and timely manner, so
that the audit and any resulting controversy may be resolved
expeditiously.
F. SBC and Supplier agree that they will reasonably cooperate
with each other with respect to any tax planning to minimize
taxes. The degree of cooperation contemplated by this Section
is to enable any resulting tax planning to be implemented and
includes, but is not limited to: (i) Supplier's installing and
loading all of the Software licensed by SBC under this
Agreement and retaining possession and ownership of all
tangible personal property, (ii) Supplier installing, loading
and/or transferring the Software at a location selected by
SBC, and (iii) Supplier Delivering all of the Software in
electronic form. SBC agrees to bear all reasonable external
(paid to third parties), additional expenses incurred by
Supplier to comply with the provisions of this subsection.
Supplier's cooperation
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
shall not be viewed as any agreement with, or guarantee of,
the taxability or non-taxability of the transaction.
3.34 WARRANTIES AND REPRESENTATIONS
A. Supplier warrants and represents that:
a. Supplier shall take commercially reasonable actions and precautions to
cause Software Delivered under this Agreement to be free of
Vulnerabilities and Harmful Code and without limiting Amdocs' other
obligations under this Agreement, [**] under this Agreement, Amdocs
shall provide [**] such Vulnerabilities and Harmful Code and shall [**]
such Vulnerabilities and Harmful Code and, if the Vulnerabilities and
Harmful Code [**];
b. Following Delivery, Supplier shall [**] under [**];
c. During the Warranty Period, all Software delivered under this Agreement
shall comply with the Specifications in all material respects;
d. SBC's Use and display of the Software in the form delivered, and in
accordance with Specifications and the terms of this Agreement, will
not result in the infringement of any copyright, trademark, service
▇▇▇▇, mask work, or United States patent, nor will such Use result in a
valid claim of misappropriation of any trade secret;
e. Supplier possesses sufficient rights, interests, licenses, and title to
the Software to enable Supplier to perform its obligations under this
Agreement, whether derived from invention, creation, authorship,
assignment, or license from another party or parties;
f. To the best of Supplier's knowledge, there is no pending or threatened
litigation which, if resolved against Supplier as a party, would have a
material adverse effect upon Supplier's ability to perform under this
Agreement;
g. All Software delivered under this Agreement shall be free of liens,
encumbrances, and security interests of any kind;
h. No consent, approval, or withholding of objection of any other party,
including any branch or agency of government, is required as required
as a condition of Supplier's entering into or performing under this
Agreement;
i. The foregoing warranties are not subject to any condition to be
performed by SBC; and
j. The foregoing warranties shall survive Delivery, installation,
Acceptance, and payment.
Amdocs shall, [**] in Section 3.34(A)(c), [**] in accordance with the provisions
of Article 5.0.
B. THE WARRANTIES STATED IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU
OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY,
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WHICH AMDOCS EXPRESSLY DISCLAIMS.
4.0 Software License
4.1 ORDER
An Order, substantially in the form of Appendix G, placed under this Agreement
shall include the information specified in Subsection a, and may include the
information in Subsection b as applicable.
a. The following should be included in any Order at a minimum:
1. SBC Order number;
2. The Software to be licensed under the Order, identified by its
name, the number of its Major Release, and the number of the
latest Minor Release to be included in the Delivery. An obligation
to Deliver an identified Minor Release includes a cumulative
obligation to Deliver all earlier Minor Releases to the same Major
Release;
3. The date of Delivery and method of Delivery elected by SBC (that
is, by "telecommunications" or by Supplier installation).
4. The license fee and subsequent license fees, if any.
5. The Maintenance Fee, if any, for the initial Maintenance Period,
if the license is perpetual;
6. The billing address at which Supplier's invoices shall be rendered
for payment;
7. The telephone number that SBC may call to report Errors and
Vulnerabilities; and
8. Any specially negotiated terms conditions unique to the
transaction at hand.
b. The following should be considered in each Order, if applicable:
1. The Published Specifications of the Software and the SBC
Specifications, if any;
2. A statement that provides for the inclusion of source code and
Design Materials if it is to be included in the Delivery;
3. The Designated System;
4. The Designated Site;
5. The maximum number of permitted Users, Concurrent Users and Named
Users, and servers permitted under this license;
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
6. The maximum aggregate processing speed of all the machines on
which Software may be installed and operated, if applicable,
expressed in terms of "million of instructions per second"
(MIPS),"megahertz," (MHz) or other similar measures of limitation;
7. If Design Materials are to be Delivered in the Order, the location
of where they shall be Delivered; and
8. Training requirements.
c. Amdocs shall, [**] under this Agreement, [**] that will [**].
4.2 LICENSE GRANT
Supplier grants to SBC a non-exclusive, non-transferable (except as set forth in
Section 3.4), perpetual, irrevocable (subject to full payment (except of amounts
in good faith dispute)) license to copy (as expressly permitted herein), Modify
(as expressly permitted herein), and operate (collectively, "Use") (i) the
Software identified in an Order, and (ii) all New Releases, Restorals,
Resolutions, and Updates, and all Revisions relating to them, that Supplier
shall make to such Software which are provided by Supplier to SBC under this
Agreement. A license granted under this Agreement does not convey or transfer
ownership of any copy of Software. SBC promises to limit its Use of the Software
as set forth in the following Section entitled "Limitations on Use" and in the
applicable Order.
4.3 LICENSE FEE
a. The license fee shall be specified in the Order. If the license fee is
based upon a limitation on the number of Users, Named Users, or
Concurrent Users authorized to use the Software and servers (as all may
be detailed in the Order) (the "Use Parameters") then SBC may amend the
Order at any time, to increase such Use Parameters, by paying an
additional fee, as agreed by the Parties, which shall be set forth in
the applicable Order.
b. SBC's Use Parameters, if applicable, will be reviewed every six (6)
months, commencing on the first business day of the last calendar month
of the first full calendar quarter following execution of this
Agreement and on each six month anniversary thereafter (the
"Verification Date") to verify whether SBC's use has exceeded the Use
Parameters set forth in the applicable Order. The use levels as of each
Verification Date shall be notified by SBC to Amdocs, and upon Amdocs'
request, certified to Amdocs by an officer of SBC within thirty (30)
days of the Verification Date. If the level of SBC's use at the time of
such review, as compared to the level of use at the previous
Verification Date has increased, then SBC will pay Amdocs subsequent
license fees if and to the extent specified in the applicable Order, in
accordance with such increase. Upon reasonable prior notice, but no
more than once per calendar year, Amdocs shall have the right, through
an independent auditor of national standing reasonably acceptable to
SBC to be appointed by Amdocs at Amdocs' expense, to audit during
normal business hours SBC's records relating to SBC's use levels
relating to the Software solely for the purpose
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
of confirming SBC's use levels. Such audit shall be subject to SBC's
standard confidentiality and security requirements. If the use level
revealed by such audit is seven percent (7%) or more larger than the
level provided to Amdocs by SBC, then without derogating from Amdocs'
rights hereunder, Amdocs may issue an invoice to SBC for, and SBC shall
reimburse Amdocs against such invoice, the costs of such independent
audit. Amdocs may issue an invoice to SBC for, and SBC will pay against
such invoice, subsequent license fees in its entirety to Amdocs no
later than thirty (30) days following the Verification Date or, if
applicable, thirty (30) days after an audit report issued in accordance
with this Section showing subsequent license fees are due.
4.4 LIMITATIONS ON USE
a. Internal Use - SBC will Use the Software only to perform and record the
transactions of SBC [**]. SBC will not Use the Software to operate a
commercial time-sharing service or commercial service bureau (i.e.,
providing transaction services as a part of an independent revenue-creating
business) for anyone [**]. SBC may [**] to the extent that [**].
Notwithstanding the foregoing, [**]. For the avoidance of doubt, the
Parties may [**].
b. Designated Site - SBC may [**] a Designated Site. [**] at a Designated [**]
the Designated Site, SBC may [**] Designated Site [**] the Designated Site,
and during [**] the Designated Site. SBC may maintain backup and archival
copies of the Software at a location other than the Designated Site. SBC
may conduct Acceptance Tests at a location other than the Designated Site.
If an Order identifies both a Designated Site and a Designated System, the
license granted under the Order shall be a Designated System license and
not a Designated Site license. In such a case, the information concerning
the Designated Site shall be deemed to be included only for the purpose of
identifying the location of the Designated System at the time of Delivery.
c. Designated System - [**], SBC may [**] a Designated System. If SBC moves
the work operations previously performed on a Designated System to a new
machine, system, or network, then SBC may transfer the license to such new
machine, system, or network, which shall thereupon become the new
Designated System in place of the former Designated System. During [**],
SBC may [**] the Designated Site.
d. Users - SBC may [**] Use the Software. SBC may [**]. SBC [**]. SBC may
reassign Named User passwords as long as they do not exceed the limit of
Named Users. SBC may permit Permitted Third Parties to access the Software
in order to complete their transactions with SBC, subject to any limit an
Order may place on the number or type of Users.
e. Processing Speed - SBC may [**] processing speed [**].
f. Number of Copies - SBC may make, store, and operate any number of copies of
the Software, unless an Order expressly promises to limit the number of
copies that SBC may operate under the license. If an Order expressly limits
the number of copies that SBC may operate, then SBC may make and store a
reasonable number of additional copies, above that limit, solely for backup
and archival purposes.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
g. Distribution and Transfer - Except as permitted in Section 3.4, SBC will
not distribute any copy of any Software or transfer license granted under
this Agreement to any unlicensed entity, or grant a sublicense to any other
party, without the prior written consent of Supplier.
h. Modification - SBC may Modify the Software only by use of the capabilities
provided within the Software itself unless the provisions of this Agreement
or an Order expressly entitle SBC to receive and use source code and other
Design Materials associated with the Software.
i. Reverse Engineering - SBC will not engage in any reverse engineering
process intended to uncover and disclose the source code, when the
modification capabilities provided within the Software do not enable it to
do so, unless provisions of this Agreement or the Order expressly provide
that SBC has the right to receive source code or other Design Materials
associated with the Software and Supplier or its escrow agent have failed
to turn them over following a proper demand from SBC.
4.5 MODIFICATION
SBC may alter, modify, add or make other changes to Software provided hereunder
at its own risk and expense or, subject to Section 3.15, contract with third
parties for such modifications. SBC shall notify such third parties of their
non-disclosure obligations. The conditions and charges, if any, for Supplier
support of such modifications shall be subject to separate agreement between SBC
and Supplier. Such Modifications shall be subject to the limitations on
Maintenance set forth in Section 5.1(e). [**] Modification shall [**].
4.6 SOURCE CODE AVAILABILITY
a. [**], Supplier shall provide [**]. Supplier shall [**], during the term of
this Agreement, Supplier shall [**].
b. Supplier shall [**] subject to and in accordance with [**], Supplier shall
[**] pursuant to the [**] during the term of [**]. SBC shall [**] shall be
[**].
4.7 TITLE
SBC acknowledges Supplier's representation and agrees that, as between the
Parties, all right, title, and interest to, and all copyrights, patents, trade
secrets and/or any other intellectual property rights in, the Software are and
will remain solely the property of Supplier and/or Supplier's licensors (or
affiliates). SBC is granted no title or ownership rights in the Software.
5.0 Support and Maintenance
5.1 ERROR SEVERITY LEVEL CLASSIFICATION
a. Supplier's Obligation to Provide a Resolution - If SBC encounters an Error,
Harmful Code or Vulnerability in the course of SBC's use of the Software
and reports the Error to Supplier as provided in this Section, then
Supplier shall proceed to provide a Restoral, if applicable, and a
Resolution to SBC within the time required by this Section.
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
b. Reporting and Classification of Errors - SBC's authorized representative
may report an Error, Harmful Code or Vulnerability by placing a telephone
call to Supplier's nationwide toll free number designated by Supplier to
receive such reports. When making such a report, SBC's representative
shall: report local time at which the call is placed; identify the Computer
Program affected by name, Major Release, and Minor Release; identify the
computer on which the Error was encountered; describe the unintended
results that the computer is producing or the intended results that the
computer is failing to produce; provide the call-back telephone number at
which SBC's authorized representative can be reached; and assign a Severity
Level to the Error as follows. SBC's authorized representative shall
assign:
1. "Severity Level 1" [**] at a time [**] normal business operations;
2. "Severity Level 2" to an Error, other than an Error of Severity Level
1, that [**] at a time [**] normal business operations;
3. "Severity Level 3" to an Error, other an Error of Severity Level 1 or
Severity Level 2, that [**] normal business [**]; and
4. "Severity Level 4" to any Error other than an Error of Severity ▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, or Severity Level 3.
c. Variations - The obligations of Section 5.2 ("Error Severity Resolutions
Plan") through Section 5.4 ("Error Severity [**]") may be adjusted by
mutual agreement of the Parties reflected [**] this Article 5.0).
d. Installation of Maintenance Modifications and Bug Fixes - SBC shall install
Maintenance Modifications and bug fixes provided by Amdocs, test and
implement such corrections and perform any clean-up activity required to
correct side effects of the Error.
e. Limitations on Maintenance/Warranty - Amdocs shall not be obligated to
correct problems in Computer Programs or Software developed or modified by
SBC or any third party, including Computer Programs added to or
interoperating with the Software or arising from use inconsistent with
requirements stated in the Documentation; provided, however, that Amdocs
shall be required to respond to service calls reporting such problems and
to determine to SBC's reasonable satisfaction that the Amdocs Software is
not responsible for the problem or the inconsistent use giving rise to the
reported problem. Amdocs may correct an Error by providing SBC with
reasonable operating instructions that correct the Error if such operating
instructions do not conflict with, and are not inconsistent with, the terms
of this Agreement or the applicable Order. All corrections to the Software
will be performed only by Amdocs. Amdocs shall not be responsible to the
extent any party other than Amdocs corrects the Software in any manner.
Additionally, Maintenance does not encompass the remediation of problems or
bugs determined by Amdocs to have been caused by the failure or malfunction
of any software, tools, equipment, or facilities not provided by Amdocs. In
the event a problem has been reported to Amdocs and it is found that the
problem is not an Error, Amdocs shall have no obligation to correct such
problem; provided, however, that, if Amdocs incurs any out-of-pocket
expenses in dispatching an Amdocs employee to work on-site at SBC to fix a
problem that is found not to be an Error, SBC shall reimburse Amdocs for
such documented expenses incurred, in accordance with SBC's expense policy.
Amdocs shall only be required to provide Maintenance [**].
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
5.2 ERROR SEVERITY RESOLUTION PLAN
Supplier shall respond to a Severity Level report from SBC, as follows:
a. Supplier's authorized representative shall [**] Supplier has [**], in the
case of a Severity Level 1 report; (ii) [**], in the case of a Severity
Level 2; (iii) [**] in the case of Severity Level 3; [**], in the case of a
Severity Level 4.
b. Supplier shall [**], in the case of a Severity Level 1 report; [**], in the
case of a Severity Level 2; and (iii) [**], in the case of a Severity Level
3.
c. [**], Supplier shall [**] in the case of a Severity Level 1; (ii) [**], in
the case of a Severity Level 2; (iii) [**], in the case of a Severity Level
3; and (iv) [**], in the case of a Severity Level 4.
d. In any event, Supplier shall [**], in the case of a Severity Level 1; (ii)
[**], in the case of a Severity Level 2; (iii) [**], in the case of
Severity Level 3; and (iv) [**], in the case of a Severity Level 4.
e. [**], in the case of a Severity Level 1 or (ii)[**], in the case of a
Severity Level 2, then, [**] under this Agreement, Supplier shall [**].
f. Continuation of Obligation Resolution Plan - Supplier's obligations under
this Section 5.2 shall [**].
5.3 ERROR SEVERITY ESCALATION PLAN
If Supplier's should fail at any time to communicate the reports required under
Error Severity Resolution Plan, or if the content of any such report that SBC
receives may give reasonable cause for concern that Supplier may fail to provide
a Resolution in the required time, then SBC may bring its concerns to the
personal attention of highest executive manger in Supplier's administrative
organization responsible for providing a Restoration until SBC's concerns are
satisfied. If that executive manager is unable to satisfy SBC's reasonable
concerns, promptly after having been apprised of them, then SBC may bring them
to the personal attention of the highest executive officer of Supplier until
SBC's concerns are satisfied. Supplier will provide to SBC, and keep current, an
escalation document that includes names, titles and telephone numbers, including
after-hours telephone numbers, of Supplier personnel responsible for providing
technical support to SBC. Supplier will maintain a streamlined escalation
process to speed resolution of reported problems.
5.4 ERROR SEVERITY [**]
[**] WITHIN THE TIME REQUIRED [**]. THEREFORE, [**] UNDER THIS AGREEMENT, [**]:
a. [**]SEVERITY LEVEL 1 OR SEVERITY LEVEL 2, AND
b. [**] SEVERITY LEVEL 3, [**].
The foregoing [**]shall be [**] and shall be [**]; provided, however, that [**]
shall be [**].
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
5.5 SUPPORT DURING THE WARRANTY PERIOD
a. Elements of Support - In addition to its obligation to provide Restorals
and Resolutions to SBC in accordance with its obligations under the Section
entitled "Error Severity Level Classification" and "Error Severity
Resolution Plan," Supplier shall during the Warranty Period (i) [**], as
set forth in [**], (ii) provide [**]as set forth in [**].
b. Enhancements and New Releases - Upon Delivery of a New Release and
associated Revisions, SBC shall have the right, but no obligation, to
conduct Acceptance Tests of the New Release, and in no event shall SBC be
required to accept, install, use, or continue to use any Enhancement or New
Release as a condition of retaining, maintaining (except as applicable to
supported releases described in Section 5.1(e) above), or extending any
license, warranty, or indemnity promised by Supplier with respect to any
Major Release or Minor Release previously licensed and delivered under this
Agreement or any Order. Amdocs shall ensure that New Releases and
associated Revisions do not materially reduce Functionality to SBC.
c. Technical Support and Training
1. Help-Desk Support - Supplier shall provide telephone support and
technical advice to assist SBC in diagnosing and solving any problems
it may encounter in the installation, operation and use of the
Software. Supplier shall provide SBC with an escalation document,
identifying persons and telephone numbers to whom it may direct
problems that are not solved at the Help Desk. If Supplier does not
operate its Help Desk around the clock, over weekends, or on holidays,
then Supplier shall provide an additional telephone number to which
SBC may direct problems in cases of emergency arising after the normal
business hours of the Help Desk, over weekends, and on holidays.
2. [**] - Supplier shall [**].
3. Revisions - Whenever Supplier provides SBC with any Enhancement
Modification of any Computer Program provided under this Agreement or
any Order, Supplier shall also provide SBC with a Revision to the
corresponding Documentation; provided, however, that Supplier may
provide necessary Revisions to the corresponding Documentation, if
any, with a subsequent release of the Documentation if the Enhancement
Modification is minor.
4. Training - Following Delivery of Software under an Order, Supplier
shall provide SBC the number of hours of training in the use of the
Software, or training classes in the use of the Software, set forth in
the Order, at no additional or separate charge to SBC. SBC may
purchase additional hours of training or training classes at a price
to be determined in the Order.
5. SBC's Point(s) of Contact - If the Order designates one (1) or more
identified persons or an administrative organization within SBC to act
on SBC's behalf in dealing with Supplier in relation to Supplier's
support obligations under this Agreement, then Supplier shall conduct
its dealings with SBC through such identified persons or organization.
d. Customer Groups - If Supplier maintains any customer board or user group to
exchange information about, or compare experiences with, or suggest further
developments to any
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
Software licensed to SBC under this Agreement or any Order, then Supplier
shall permit SBC to participate in such board or group on an equal basis
with Supplier's other customers.
5.6 MAINTENANCE SUPPORT FOLLOWING EXPIRATION OF THE WARRANTY PERIOD
a. Continuing Obligation to Provide Restorals, Resolutions and Updates -
Following the expiration of any Warranty Period, Supplier shall continue to
perform its obligation to provide Restorals, Resolutions, Updates and
related Revisions to SBC in accordance with its obligations under the
Sections entitled "Error Severity Level Classification" and "Error Severity
Resolution Plan" at no additional charge or cost (above the Maintenance
Fee) to SBC, and if SBC purchases and pays for other elements of Supplier
support under any of its options as provided below in this Section, then
Supplier will provide those other elements as well.
b. [**] the Software [**] to this Agreement that are provided [**] shall be
provided [**].
c. As long as Maintenance is current, SBC shall be provided electronic copies
of all relevant training materials, which it may use to make unlimited
copies for internal use (e.g., "golden disk" for internal use).
d. [**] this Agreement [**].
e. SBC may [**].
f. SBC's Options with Respect other Elements of Support
1. Full Support under Maintenance Order - Upon the expiration of any
Warranty Period, SBC may elect to continue to receive continuing
Supplier support, referred to as "Maintenance", as provided under
Sections 5.1 through 5.5, above, from year to year, upon placement of
an Order and payment to Supplier of an annual fee, which shall be
referred to as a "Maintenance Fee". For each of the [**]for the
perpetual license in question; provided, however, that the [**] in
which the [**].
2. Renewal After Lapsed Maintenance - If SBC does not elect to continue
receiving Maintenance at the end of any period when it may do so under
this Agreement, or terminates or cancels Maintenance as provided in
this Agreement, SBC may nevertheless elect to resume receiving
Maintenance at a later time upon placing an Order at a cost equal to
[**] percent ([**]%) of the Maintenance Fees for the periods when
Maintenance was not provided, plus the Maintenance Fee for the current
period. Upon receipt of payment from SBC, Supplier shall provide SBC
with all Enhancements and Modifications to the Software that Supplier
included in New Releases provided to its other customers during the
time when SBC was not receiving Maintenance.
3. Individual Elements of Support - If SBC does not elect to continue
receiving Maintenance at the end of any period when it may do so under
this Agreement, or terminates or cancels Maintenance as provided in
this Agreement, SBC may then or thereafter purchase elements of
Supplier support, individually or in any combination, as follows: (i)
on-call assistance from the Help Desk from time to time at an hourly
rate, (ii) on-call on-site assistance of Supplier's software engineer
at an hourly rate, and (iii) hours of training or training classes at
mutually agreed to pricing. In addition, if the
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
Order so provides, Supplier will provide SBC with all Design Materials,
including source code, and any modifications thereof, sufficient to enable
SBC or its consultants and contractors to maintain the Software for SBC's
own use.
6.0 SPECIAL TERMS
The terms in this Article 6.0 shall apply to Orders involving Services.
6.1 ACCESS
A. SBC shall grant Amdocs' personnel such access to the SBC premises and
facilities as are reasonably required for Amdocs' performance of its
obligations under this Agreement at SBC's site including, at no charge
to Amdocs, with office space suitable for Amdocs' needs and the
following services: computer terminals and associated peripherals
including access to E-mail/Internet; a communication line from SBC's
premises to Amdocs' relevant development center with minimum capacity
to be specified based on the number of users in the development center;
reasonable use of telephone, fax, and e-mail for business purposes; and
office supplies, equipment and consumables, at SBC's normal standard.
Supplier shall have reasonable access to SBC's premises during normal
business hours, and at such other times as may be agreed upon by the
Parties to enable Supplier to perform its obligations under this
Agreement. Supplier shall coordinate such access with SBC's designated
representative prior to first visiting such premises and thereafter as
agreed by the Parties. Supplier will ensure that only persons employed
by Supplier or subcontracted by Supplier will be allowed to enter SBC's
premises. If SBC requests Supplier or its subcontractor to discontinue
furnishing any person provided by Supplier or its subcontractor from
performing Work on SBC's premises due to such person's unacceptable
behavior (i.e., a security problem or breach of SBC Code of Conduct, or
disruptive behavior), Supplier shall immediately comply with such
request. Such person shall leave SBC's premises immediately. Supplier
shall not furnish such person again to perform Work on SBC's premises
without SBC's written consent. The Parties agree that, where required
by governmental regulations, Supplier will submit satisfactory
clearance from the U.S. Department of Defense and/or other federal,
state or local authorities.
B. SBC may require Supplier or its representatives, including employees
and subcontractors, to exhibit identification credentials, which SBC
may issue to gain access to SBC's premises for the performance of
Services. If, for any reason, any Supplier representative is no longer
performing such Services, Supplier shall immediately inform SBC.
Notification shall be followed by the prompt delivery to SBC of the
identification credentials, if issued by SBC. Supplier agrees to comply
with SBC's corporate policy requiring Supplier or its representatives,
including employees and subcontractors, to exhibit their company photo
identification in addition to the SBC issued photo identification when
on SBC's premises.
C. Supplier shall use reasonable efforts to ensure that its
representatives, including employees and subcontractors, while on or
off SBC's premises, will perform Work which (i) protects SBC's
Material, buildings and structures and (ii) does not interfere with
SBC's business operations and will perform such Work with care and due
regard for the
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PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
safety, convenience and protection of SBC, its employees, and property
and in full conformance with the policies specified in the SBC Code of
Conduct, which prohibits the possession of a weapon or an implement
which can be used as a weapon. SBC acknowledges delivery of, and
Supplier acknowledges receipt of, a copy of the SBC Code of Conduct on
or prior to the date of execution of this Agreement.
D. Supplier shall use reasonable efforts to ensure that all persons
furnished by Supplier work harmoniously with all others when on SBC's
premises.
6.2 BACKGROUND CHECK
A. BACKGROUND CHECK/DRUG SCREENING. Amdocs shall complete (or caused
to be completed) a satisfactory background check and drug
screening of all local full time assigned Amdocs Personnel
performing services under this Agreement at SBC sites (except
Amdocs personnel performing services at SBC sites prior to the
Effective Date of this Agreement) before such Amdocs Personnel
first enter any SBC site; provided, however, that, if a
satisfactory background check and drug screening was completed in
connection with the hiring of such Amdocs Personnel, it need not
be repeated. For purposes of this Section, "AMDOCS PERSONNEL"
means those employees, representatives, contractors,
subcontractors and agents of Amdocs, its subcontractors, and
Amdocs Affiliates who perform any Services under this Agreement.
B. For Supplier personnel performing services outside of SBC sites,
Supplier shall conduct a reasonable inquiry for each individual
providing Services on Amdocs premises to SBC to attempt to
identify, inter alia, whether the individual has been convicted of
a felony. Supplier agrees that no individual convicted of a felony
will knowingly be permitted to provide Services in connection with
an Order submitted by SBC without SBC's written consent.
C. Supplier shall conduct a background check for each individual
providing Services to SBC to identify whether the individual has
been convicted of a felony or is identified on the EAR denied
persons list, as maintained by the Bureau of Industry and Security
or the SDN Blocked Persons list maintained by the Office of
Foreign Asset Control. Supplier agrees that no individual
convicted of a felony or on the denied persons list will be
permitted to provide Services to SBC without SBC's written
consent. No consent will be granted for anyone on the denied
persons list. Supplier shall review and certify that all
individuals providing services to SBC under this contract are not
on the EAR denied persons list or the SDN Blocked Persons list.
Supplier shall provide such certification any time new resources
are added to fulfill the services provided by this contract and on
an annual basis a certification of all Supplier resources.
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The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
6.3 CONFIDENTIALITY AND INVENTION AGREEMENT
Supplier shall ensure that all individuals that provide Services under this
Agreement sign Supplier's confidentiality agreement required of all Supplier's
employees, and will use reasonable efforts to ensure that such individuals shall
comply with the confidentiality provisions of this Agreement.
6.4 INDEPENDENT CONTRACTOR
Supplier hereby represents and warrants to SBC that:
A. Supplier is engaged in an independent business and will perform
all obligations under this Agreement as an independent contractor
and not as the agent or employee of SBC;
B. Supplier's personnel performing Services shall be considered
solely the employees of Supplier and not employees or agents of
SBC;
C. Supplier has and retains the right to exercise full control of and
supervision over the performance of the Services and full control
over the employment, direction, assignment, compensation and
discharge of all personnel performing the Services;
D. Supplier is solely responsible for all matters relating to
compensation and benefits for all of Supplier's personnel who
perform Services. This responsibility includes, but is not limited
to, (i) timely payment of compensation and benefits, including,
but not limited to, overtime, medical, dental and any other
benefit, and (ii) all matters relating to compliance with all
employer obligations to withhold employee taxes, pay employee and
employer taxes, and file payroll tax returns and information
returns under local, state and federal income tax laws,
unemployment compensation insurance and state disability insurance
tax laws, social security and Medicare tax laws, and all other
payroll tax laws with respect to all Supplier personnel providing
Services; and
E. Supplier will indemnify, defend and hold SBC harmless in
accordance with Section 3.14 from all Liabilities related to
Supplier's failure to comply with the immediately preceding
paragraph.
6.5 [**]
Supplier will [**] Supplier [**]. Supplier will provide [**]that
Supplier provide [**].
6.6 WORK DONE BY OTHERS
If any part of Supplier's Work is dependent upon work done by others, including
subcontractors and temporary workers engaged by Amdocs, Supplier shall, if (i)
the Work is performed by a subcontractor or temporary worker engaged by Amdocs
or if (ii) Amdocs is otherwise required to do so by SBC as part of supervisory
Services it provides under an Order hereunder, inspect and promptly report to
SBC any defect that renders such other work unsuitable for Supplier's proper
performance. All work shall be performed by any company or individual shall meet
the rules defined by the EAR or embargo regulations. All subcontractors are
subject to EAR and
43
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
embargo regulations just as the supplier is subject. If the subcontractor's
employees are in or from a country other than the United States or are foreign
nationals, additional EAR and embargo verification will need to be completed by
Supplier. Supplier's silence regarding work done by Supplier's subcontractors or
temporary workers shall constitute approval of such other work as fit, proper
and suitable for Supplier's performance of its Work.
6.7 NON-INTERFERENCE WITH EMPLOYEES
Subject to any restrictions by local laws, each of the Parties agrees not to
hire or employ any employee of the other Party or its affiliates who are
assigned full or part-time to activities which are part of the performance of
this Agreement, except by mutual written consent of such other Party, within one
(1) year of such employee ceasing to work on projects associated with this
Agreement.
ENTIRE AGREEMENT
The terms contained in this Agreement and in any Orders, including all exhibits,
appendices and subordinate documents attached to or referenced in this Agreement
or in any Orders, constitute the entire integrated Agreement between Supplier
and SBC with regard to the subject matter of any Order executed hereunder. This
Agreement supersedes all prior oral and written communications, agreements and
understandings of the Parties, if any, with respect thereto. Acceptance of
Software or Services, payment or any inaction by SBC, shall not constitute SBC's
consent to or acceptance of any additional or different terms from those stated
in this Agreement, except for terms in an Order inserted by SBC and signed by
both Parties. Estimates furnished by SBC are for planning purposes only and
shall not constitute commitments. Supplier covenants never to contend otherwise.
No oral promises or statements have induced either Party to enter into this
Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, which
may be in duplicate counterparts, each of which will be deemed to be an original
instrument, as of the date the last Party signs.
44
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.
Software Master Agreement No. 03032360
AMDOCS SOFTWARE SYSTEMS LIMITED SBC SERVICES, INC.
By: [illegible] By: [illegible]
------------------------------ ---------------------------------
Printed Name: Printed Name:
Title: __________________________ Title: _______________________________
Date: ___________________________ Date: ________________________________
45
PROPRIETARY INFORMATION
The information contained herein is not for use or disclosure outside SBC,
Supplier, their affiliated and subsidiary companies, and their third party
representatives, except under written agreement.