EXHIBIT 10.9
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE PORTIONS OF THE
AGREEMENT INDICATED WITH AN ASTERISK (*). A COMPLETE COPY OF THIS AGREEMENT,
INCLUDING THE REDACTED TERMS, HAS BEEN SEPARATELY FILED WITH THE SECURITIES &
EXCHANGE COMMISSION.
OBJECTIVE SYSTEMS INTEGRATORS, INC.
LICENSE AGREEMENT
CONTRACT No.: 325
THIS MASTER AGREEMENT ("Agreement") is entered into as of March 28, 2000
("Effective Date"), between OBJECTIVE SYSTEMS INTEGRATORS, INC. ("OSI"), and
VoiceStream Wireless Corporation. ("Licensee").
1. DEFINITIONS
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(a) Application Component. OSI Software, other than NetExpert VSM Core
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Products, licensed as a single off-the-shelf application component such
as FM Exel(TM), including only those off-the-shelf Rulesets provided as
part of that application component.
(b) Combined Software. Computer code, modules, programs, data files or
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rules, including related documentation, resulting from (1) some or all
of the same being linked, combined or otherwise operated with OSI
Software, or (2) Licensee's modification of OSI Software.
(c) Deliverables. Materials such as OSI Software and Manuals specifically
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described as deliverables in a Statement of Work.
(d) Information. Written, machine-reproducible and visual materials that
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are described in this Agreement, or are clearly marked when disclosed,
as being confidential, together with all written, visual and oral
materials so identified in writing within 30 days after their
disclosure.
(e) Installation Date. The business day OSI declares Products ready for use
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if installed by OSI, or the business day after Products are delivered,
if they are to be installed by Licensee.
(f) Licensee Software. Computer code, modules, programs, data files or
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rules, including related documentation, owned or licensed by a third
party to Licensee and designed to be linked, combined or otherwise
operated with OSI Software to augment or enhance it. Licensee Software
excludes Products.
(g) Manuals. User manuals and similar documentation listed in an Order or
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supplied with OSI Software or Vendor Software. Manuals do not include
product and service descriptions, advertising or marketing materials.
(h) NetExpert Framework Product. OSI Software specifically listed in the
---------------------------
Price List as part of the NetExpert(R) network management Framework.
(i) New Use. Use of OSI or Vendor Software:
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(1) Other than as specifically provided by this Agreement.
(j) Order. The form attached as Exhibit 1, as from time to time submitted
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by Licensee and accepted by OSI to acquire licenses for Products under
the terms of this Agreement. If the terms of an accepted Order directly
conflict with the terms of this Agreement (including, without
limitation, the form attached as Exhibit 1, the terms of the accepted
Order will govern.
(k) OSI Software. Computer code, modules, programs, data files and rules
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listed as OSI Software in the Price List, or provided to Licensee by OSI
as Deliverables or otherwise in connection with Services or otherwise.
OSI Software does not include Vendor Software.
(l) Price List. The OSI price list in effect on the date an Order is
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accepted and approved for use in the region where the Products are to be
installed. Subject to the restrictions set forth herein or otherwise
agreed upon in writing by the parties, OSI may change the Price List,
including available Products, specifications and prices, on notice to
Licensee.
(m) Products. OSI Software, other Deliverables, Vendor Software and
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Manuals.
(n) Professional Services. The Services described in a Statement of Work.
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(o) Ruleset. A group of instructions which, when taken as a whole,
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constitute a decision-making matrix used to direct the functions of
NetExpert Framework Products for a specific network element, management
operation or other application.
(p) Services. Professional Services and Support Services.
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(q) Statement of Work. A description of Professional Services attached to a
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Work Order which is made a part of this Agreement.
(r) Support Services. The update and support services described in Exhibit
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2.
(s) Vendor. A third party which directly or indirectly provides software
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embedded in OSI Software or Vendor Software.
(t) Vendor Software. Computer code, modules, programs, data files or rules
---------------
listed as Vendor Software on the Price List or provided to Licensee by
OSI as separately packaged software in connection with Services or
otherwise.
(u) Work Order. A document executed by the parties which sets forth the
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terms upon which Professional Services will be provided by OSI to
Licensee, including the Statement of Work. If the terms of a Work Order
directly conflict with the terms of this Agreement, the terms of the
Work Order will govern.
2. ORDER, PRICE, PAYMENT
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(a) Orders. Licensee will use the Order attached as Exhibit 1 to order OSI
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Software, professional services and maintenance and support services.
Licensee has the option to use or not use OSI's professional services.
If Licensee elects to order professional services from OSI during the
life of this Agreement, it will use the form of Order illustrated at
Exhibit 1.
(b) Price. For the Order identified above, Licensee agrees to pay to OSI
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the price stated at Exhibit 1 for the OSI software encompassed by this
Agreement. Exhibit 1 includes the price for professional services should
Licensee elect to purchase professional services from OSI.. Professional
Services charges will be billed according to the applicable Work Order,
or if not otherwise specified, then according to OSI's then-current time
and materials rates, minimums and other terms. If a Work Order is priced
on a time and materials basis with a not-to-exceed amount, OSI will use
all reasonable efforts to complete the work described in the Work Order
for that amount, and OSI will provide advance notice to Licensee if that
work will not be completed for that amount. On receipt of that notice,
Licensee may determine whether to continue the work or to accept the
work in its then-current form and terminate further work under that Work
Order. Support Services will be billed at the then-current rates.
(c) Due Date. Except as set forth in an Order or a Work Order, Licensee
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will be invoiced for payment no earlier than the Acceptance date as
specified in Section 6(b). Except as set forth in an Order or Work
Order, payment is due (*) days after the invoice date. Charges incurred
on a monthly or other periodic basis are payable in advance on the first
day of the applicable period unless otherwise agreed in an Order.
(d) Payments. Payments for OSI products and services will be made in
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immediately available U.S. funds, without withholding for Taxes or other
amounts. Amounts not paid within (*) days of when due will accrue
interest at the lesser of (*) per month or the highest rate permitted
by applicable law. Licensee will reimburse OSI for all fees, costs and
expenses (including reasonable attorneys' fees and court costs) incurred
to collect undisputed but unpaid amounts.Amounts invoiced to VoiceStream
by OSI become final unless disputed in writing within thirty (30) days
after the date of OSI's invoice. The "undisputed" portion of an OSI
invoice is the portion excluded from a written statement from
VoiceStream to OSI stating any disputed amount of an OSI invoice.
VoiceStream's written statement of the amount disputed must be itemized
with specificity so that OSI can understand the nature of the dispute on
the face of the statement of dispute ("statement of amount disputed").
VoiceStream's statement of amount disputed must be provided to OSI prior
to the due date for payment of the OSI invoice to which the statement of
amount disputed relates. If VoiceStream fails to provide the statement
of amount disputed by the deadline described in this Section 2(d),
VoiceStream waives any claim of any disputed amount related to the
invoice.
(e) Taxes, Charges. Prices are exclusive of, and Licensee will pay, all
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sales, value-added, withholding or excise taxes, import duties and other
government fees and charges of any nature whatsoever other than taxes
on the income of OSI ("Taxes"). Taxes paid or payable by OSI will be
invoiced to and paid by Licensee. If Licensee is obliged to make any Tax
or other withholding on or in relation to any payment due OSI under this
Agreement, the amount due will be deemed to be that which, having been
grossed-up and the applicable tax having been withheld, will yield OSI
the same amount as it would have received had no Tax withholding been
made. Prices are quoted exclusive of, and Licensee will pay, applicable
freight and insurance charges.
(f) Right to Offset. OSI may offset any amount owed by Licensee under this
---------------
Agreement against any amounts OSI owes Licensee for any reason. Licensee
may offset any amount owed by OSI to Licensee for any reason against any
amount Licensee owes OSI under this Agreement.
(g) Audits. On reasonable notice but no more than one time per quarter and
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after signing Licensee's standard nondisclosure agreement, OSI may use
an independent auditor to inspect Licensee's facilities (including
computers) and applicable records only to verify Licensee's proper use
of and payment for all Products and Services. Licensee will keep records
regarding its use of the Products in sufficient detail to permit that
verification. If, following an audit, the independent auditor determines
that there has been an underpayment of any amounts due, OSI will invoice
Licensee for and Licensee will pay the amount of the underpayment plus
interest as provided in Section 2(d) from the date each payment was due.
If the underpayment for items under any Order was more than (*) percent
of the amount actually due, OSI will also invoice Licensee for and
Licensee will also pay OSI's actual inspection expensesand a (*)
surcharge on the underpaid amount. If, following an audit, the
independent auditor determines that there has been an overpayment of any
amounts due, Licensee will invoice OSI for and OSI will pay the amount
of the overpayment less the amount of OSI's actual audit expenses.
3. DELIVERY
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(a) Delivery. Except as set forth in a Work Order or notice from Licensee,
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OSI will pack and ship the Products according to its standard practice,
F.O.B. factory, with freight and insurance prepaid and invoiced to
Licensee. Licensee will reimburse OSI for any extra costs incurred to
comply with Licensee's special packing and shipping arrangements.
Scheduled delivery dates are only estimates. Each shipment is a separate
sale obligating Licensee to pay OSI whether the shipment fully or
partially fulfills an Order. Licensee has 60 days from receipt to verify
that all Products have been received. OSI will replace missing Products
(including all shipping) at no charge.
(b) Title, Risk of Loss. Licensee will not acquire title to Products. Risk
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of loss for the Products will pass to Licensee when received by Licensee
at its facility.
(c) Modifications and Cancellation.
------------------------------
(1) Professional Services to be provided under a Statement of Work may
be canceled either (a) on 45 days notice by Licensee, or (b)
immediately upon Licensee's written notice to OSI of a material
breach of this Agreement by OSI, but Licensee will pay for all
Professional Services properly provided by OSI through the date of
cancellation at OSI's then-current time and materials rates
(subject to the limitations of Section 2(b) and not to exceed the
total amount due under that Statement of Work) and all costs
reasonably incurred by OSI in connection with that cancellation.
(2) Professional Services can be modified by written notice from
Licensee at any time. OSI will notify Licensee of any proposed
increase in costs, delay in schedule or other consequence from that
request, Licensee will notify OSI of any proposed decrease in
costs, acceleration in schedule or other consequences, and the
change will be implemented if the parties agree to a modification
to the terms of the Statement of Work.
(3) If Licensee modifies or cancels an Order for Products without cause
or without the required notice, Licensee will pay OSI's out-of-
pocket expenses incurred in connection with the modification or
cancellation.
4. TERM; TERMINATION
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(a) Term. This Agreement will commence on the Effective Date and
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remain in effect for 24 months ("Term"), and unless sooner terminated,
will automatically be renewed on a month-by-month basis until either
party provides the other with 30 days' notice of its intention not to
renew.
(b) Termination of Agreement. This Agreement may be terminated
------------------------
(1) by either party on breach by the other party remaining uncured 30
days after notice specifying the breach with particularity or (2) by
notice if the other party becomes insolvent, bankrupt or makes an
assignment for the benefit of creditors.
(c) Survival. On expiration of the Term or termination of this
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Agreement for any reason, the obligations of Licensee to pay amounts
properly owed to OSI and the obligation of each party to discharge any
liability or other obligation incurred before expiration or termination
will survive, together with the provisions of the following Sections:
2(b)-(h), 4(d), 5 and 7-11.
(d) Termination of Licenses. The licenses granted in Section 5(b)
-----------------------
will terminate upon the earliest of the following to occur: (1)
termination of this Agreement by OSI under Section 4(b) (2) any
violation by Licensee of Section 5(h), (3) notice from Licensee or (4)
expiration of the term otherwise expressly agreed upon by the parties.
On termination of any license under this Section, Licensee will
immediately destroy or return to OSI all copies of the Product then in
its possession or under its control. Licensee will have no continuing
rights to that Product, whether alone or as part of Combined Software.
5. LICENSES
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(a) General. This Section sets forth the rights granted to Licensee for the
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Products identified at Exibit 1.(*) The parties agree that OSI may
conduct the audit(s) as provided in Section 2(g) above. Vendor Software
may be subject to additional license restrictions and rights specified
in licensing documents accompanying the Products. Except for Rulesets
which are provided in NetExpert(R)'s 4GL programming language and
"API's" and "header files" for which source code is provided, Licensee
will receive only an object code license for Products.
(b) License Grant. Subject to the terms of this Agreement, OSI grants
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Licensee and Licensee accepts a perpetual, United States wide, personal,
non-transferable (except as provided herein), non-exclusive license,
without the right to sublicense, to load, install, execute, display and
store OSI and Vendor Software only within the United States solely for
its own internal use and to use the Manuals and Deliverables other than
OSI Software for that purpose. Subject to the terms of this Agreement,
Licensee may also (1) modify rules and data files included in OSI
Software, and (2) modify OSI Software, link, combine or otherwise
operate OSI and Vendor Software with Licensee Software and use the
resulting Combined Software solely for Licensee's internal purposes.
Except as expressly provided herein no other rights are granted to
Licensee.
(c) Term, Limitations. The term of the license granted in Section 5(b) will
-----------------
continue perpetually until terminated under Section 4(d), but Support
Services will only be provided under Exhibit 2 while Licensee has a
current Support Services subscription. Licensee will not, nor will it
permit others to, use Products to develop code, objects, modules or
programs which modify or substitute for code, objects, modules or
programs in the Products. OSI and its Vendors retain title to all
Products and all legally protected rights in Products, subject only to
the licenses granted under this Agreement. Unless expressly disclosed
and agreed to by Licensee, and except for OSI authorization codes
designed to protect against non-OSI access to OSI Software Product
source code and for OSI license keys used to make OSI Software Products
"functional" for Licensee, Products may not contain authorization codes,
lockout software or both to restrict their operation to properly
licensed uses.
(d) Intellectual Property. Products are copyrighted. Licensee will not
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sublicense Products and will not copy, alter, adapt, modify or make
derivative works of Products except as expressly permitted by this
Section. Licensee may make a reasonable number of backup and archival
copies of OSI and Vendor Software for "cold backup" only (i.e., only one
copy may be in use in any fashion at any time), provided that all
copyright, patent, trademark and other proprietary notices on and in the
Products are simultaneously copied. Licensee may make a reasonable
number of copies of Manuals under the terms of this Agreement solely for
the purposes permitted in Section 5(b). Licensee will not alter or
remove any copyright, patent, trademark or other proprietary notice from
the Products. Products may contain processes and techniques that are
protected by patents. No license to use these processes and techniques
apart from the Products is granted. Licensee will not acquire any right
to the trademarks or tradenames of OSI and its Vendors. Licensee will
not use, apply to register or register a trademark or trade name which
is the same as or confusingly similar to any used by OSI or a Vendor.
(e) Transfer to Alternative or Additional Computes. Licensee will need to
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provide notice to and obtain the requisite authorization codes from OSI
before a transfer is affected.
(f) Reverse Engineering., Except for Rulesets which are provided in
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NetExpert's 4GL programming language and except for "API's" and "header
files", Licensee will not, and waives to the fullest extent permitted by
law any right to, reverse engineer, decompile or disassemble or
otherwise attempt to derive the source code for or operation of OSI
Software and Vendor Software, or to decode, de-encrypt or engineer
around any authorization codes, lockout software or other security
measures contained in the OSI Software.
(g) Use of Products to Provide Services to Third Parties. Except as
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provided in Section 5(h), Licensee will not use Products to provide
network management or operations support services to any third party,
whether on its own network, through its own network elements, on the
network of a third party, through the network elements of a third party,
or otherwise, without executing a network services agreement with OSI
and complying with the terms of that agreement.
(h) Transfers. Except as provided for under Section 12 of this Agreement,
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Licensee will not rent, license, sell or otherwise transfer any portion
of the Products. Any purported transfer not provided for under Section
12 of this Agreement will be void, will be a breach of this Agreement
and will cause the licenses granted in this Agreement to automatically
terminate.
Further notwithstanding the foregoing, Licensee may assign its rights
and obligations hereunder to one or more of the following entities: (i)
Xxxx Inlet/VoiceStream PV/SS PCS, LLC (ii) Xxxx Inlet/VoiceStream PCS,
LLC (iii) Xxxx Inlet/VoiceStream GSM II PCS, LLC, or (iv) Xxxx
Inlet/VoiceStream GSM III PCS, LLC (collectively "Xxxx Inlet/VoiceStream
LLCs"), so long as Licensee owns no less than a 49.9% interest in the
assignee(s) Xxxx Inlet/VoiceStream LLC(s) at the time of the assignment.
(i) Reservation of Rights, Third Party Beneficiaries. Except as set forth
------------------------------------------------
in this Agreement, OSI reserves to itself and Vendors all rights to
engage in activities which, absent a grant of rights, would give rise to
liability for infringement of intellectual or intangible property
rights. Oracle Corporation is a third party beneficiary of this
Agreement and may directly enforce its rights under this Agreement and
in its intellectual property directly against Licensee.
(j) Underlying Licenses; Licensee Software. Licensee will ensure that valid
--------------------------------------
licenses for all required third party software are properly obtained and
in place. Licensee Software is copyrighted, and OSI has no rights or
licenses therein. Licensee and its Vendors retain title to all Licensee
Software and all legally protected rights in the Licensee Software.
Except as set forth in this Agreement, Licensee reserves to itself and
Vendors all rights to engage in activities which, absent a grant of
rights, would give rise to liability for infringement of intellectual or
intangible property rights.
6. INSTALLATION, ACCEPTANCE, SUPPORT, TRAINING
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(a) Installation and Control. Except as set forth in a Statement of Work,
------------------------
OSI has no responsibility for installing, testing, managing or
controlling the Products.
(b) Acceptance. For Products on the Price List and any other Product not
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provided under a Statement of Work, the Product will be accepted if it
performs substantially as described in its Manual in effect at the time
of delivery ("Documentation"). Deliverables will be accepted if they
substantially conform to the specifications set forth in the applicable
Statement of Work or in a requirements document provided as a
Deliverable under a Statement of Work. Services. Exhibit 2 contains the
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terms upon which OSI will provide Support Services at Prices set forth
in the Price List. Professional Services will be provided by OSI to
Licensee under consecutively numbered Work Orders entered into by the
parties under and made part of this Agreement.
(c) Training. Except as set forth in a Work Order or other Exhibit to this
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Agreement, OSI and Vendor training will be at an additional fee in
accordance with the provider's rates then in effect, and subject to the
provider's cancellation policies, Licensee will reimburse OSI and its
Vendors for all reasonable preapproved travel and other out-of-pocket
expenses incurred by them in connection with any training they may
furnish.
7. OWNERSHIP, PROPRIETARY RIGHTS
-----------------------------
(a) Ownership. All right, title and interest to copyrights, trade secrets,
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patents and other intellectual property rights (1) in the Products will
remain the exclusive property of OSI and its Vendors, as applicable, and
(2)
in Licensee Software will remain the exclusive property of Licensee. For
Combined Software, the parties will each retain full and exclusive
rights to those portions of their respective software that are
incorporated into the Combined Software. Combined Software will not be a
joint work, and upon termination of the License to any Product included
in Combined Software, Licensee's right to use that Product even as part
of Combined Software will terminate, and OSI's right to use any portion
of the Combined Software created or owned by Licensee will terminate.
Licensee shall own all rights and title to the source code to any
software Licensee properly develops under this Agreement.
(b) Proprietary Rights. All aspects of OSI Software and Vendor Software,
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including programs, methods of processing, program design and structure,
the interaction and unique programming techniques they employ and their
screen formats, are Information and will (1) remain the exclusive
property of OSI or its Vendors, (2) not be used except as permitted by
this Agreement, and (3) not be disclosed or otherwise communicated by
Licensee, directly or indirectly, to anyone except as permitted by this
Agreement. All aspects of Licensee Software Software, including
programs, methods of processing, program design and structure, the
interaction and unique programming techniques they employ and their
screen formats, are Information and will (1) remain the exclusive
property of Licensee, (2) not be used except as permitted by this
Agreement, and (3) not be disclosed or otherwise communicated by OSI,
directly or indirectly, to anyone except as permitted by this Agreement.
8. REPRESENTATIONS & WARRANTIES
----------------------------
(a) Limited OSI Representations and Warranties. OSI represents and warrants
------------------------------------------
that except as set forth in Section 8(b):
(1) (*)
(2) For any OSI Software covered by Support Services, and for any
period of extended warranty, until December 31, 2000, OSI Software
will include Year 2000 capabilities such that in the normal
operation of OSI Software: (1) values for current dates before,
during and after the Year 2000 will not cause interruptions in
normal operation, except that because of UNIX limitations, current
dates greater than or equal to 2038 cannot be supported on 32 bit
machines, or 64 bit machines using 32 bit dates, (2) manipulation
of date-related data will produce desired results before, during
and after the year 2000 and management of stored dates greater than
or equal to 2038 will not cause problems on 32 bit machines, (3)
date elements in interfaces and data storage will permit
specification of century to eliminate date ambiguity, (4) for any
date element represented without century, two digit years greater
than or equal to 69 will convert to 19xx and two digit years less
then 69 will covert to 20xx, and (5) leap years will be properly
processed and recognized. No warranty is provided for any date
related problems caused by Vendor Software, or by any other
software or any hardware connected to OSI Software. The Services
and Products will not infringe any trade name, trademark, service
xxxx, copyright, patent, trade secret, literary, dramatic or
intellectual property right of any third party, or infringe upon
the right of privacy or publicity of any person or entity, or
constitute a libel or slander of any person or entity.
(3) The Services and Products will conform in all material respects
will the slated requirements of this Agreement. All Services
provided by OSI will be performed in a professional manner and
shall be of a high grade, nature, and quality.
(4) (*)
(b) Mutual Representations and Warranties. OSI and VoiceStream each
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represent and warrant that:
(1) Their execution, delivery, and performance of this Agreement (i)
have been authorized by all necessary action, if any; (ii) do not
violate any law, rule, or regulation or the terms of any order,
judgment, or decree to which either party is subject, or the terms
of any material agreement to which either party or any of its
assets may be subject; and (iii) are not subject to the consent,
approval, or other action of any third party.
(2) This Agreement is a valid and binding obligation of each party
enforceable against each party in accordance with its terms.
(3) Each party shall have, obtain and maintain all proper business
registrations or licenses required by federal, state or local law,
and, on behalf of itself and its employees, shall pay all income
taxes, unemployment taxes, social security, workers' compensation
insurance, or other similar taxes, expenses or deductions arising
from its activities under this Agreement.
(c) Modifications and Vendor Software. OSI makes no warranty as to any
---------------------------------
portion of OSI Software that is modified, altered or combined with any
other software, such as Rulesets, by any party other than OSI or its
agents or representatives, and as to any of the related Manual
provisions, or as to any of the Vendor Software and related Manuals. OSI
will transfer to Licensee any assignable warranties that OSI receives
from Vendors for Vendor Software. OSI will cooperate with Licensee to
obtain warranty service for Vendor Software as reasonably necessary.
(d) Pre-Release OSI Software. Pre-Release OSI Software (such as "alpha" or
------------------------
"beta" versions of new or existing OSI Software) may be provided in
OSI's discretion to Licensee solely as an accommodation for its
evaluation, comment and familiarization. Pre-Release OSI Software is
provided without warranty of any nature. In particular, Pre-Release OSI
Software may contain bugs and inoperable features that may not be
corrected by OSI, and OSI may change Pre-Release OSI Software
significantly prior to commercial release, or even not produce a
commercial product based on Pre-Release OSI Software.
(e) Warranty Limitations. SECTIONS 8(a), (b) AND (c) CONTAIN THE EXCLUSIVE
--------------------
WARRANTIES FOR PRODUCTS AND SERVICES. EXCEPT FOR THOSE WARRANTIES,
PRODUCTS AND SERVICES ARE PROVIDED "AS-IS." NO OTHER WARRANTY, ORAL OR
WRITTEN, IS EXPRESSED OR IMPLIED. EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED HEREIN, OSI DOES NOT WARRANT THAT (1) ANY PRODUCT OR SERVICE
WILL MEET LICENSEE'S REQUIREMENTS, (2) THE PRODUCTS WILL PERFORM IN
EVERY OPERATING ENVIRONMENT, (3) THE OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED OR
ERROR FREE, OR (4) ANY DEFECT OR MALFUNCTION IN THE PRODUCTS OR SERVICES
IS CORRECTABLE OR WILL BE CORRECTED. OSI SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE . The limited warranty provided in this Section 8 will not apply
to, and OSI will have no warranty obligation with respect to, any defect
or malfunction (1) to the extent it results from (A) improper
modification or use by Licensee, or (B) hardware, software, interfacing
or supplies other than those provided by OSI in the form provided by
OSI, or (C) any cause other than ordinary use or (2) with respect to the
warranties set forth in Section 8(a)(*), (2), (6), (8) and (9), for
which OSI or Licensee (A) is unable to reproduce the nonconformity, (B)
OSI is not provided with a description of the parameters, procedures or
conditions which generate the problem in sufficient detail to permit
isolating the code which causes the problem or (C) OSI is not provided
with all data files, rules, Licensee Software and system access
reasonably required to reproduce and analyze the problem.
9. LIMITATIONS, REMEDIES
---------------------
(a) Exclusive Remedies. Licensee's sole remedy for a breach of the limited
------------------
warranty in Section 8(a) will be for OSI to use commercially reasonable
efforts to restore the Products to substantially conforming condition
under the terms of Exhibit 2, or if OSI is unable after such efforts to
so restore the Products, then for Licensee to obtain a full refund of
the purchase price of the Products upon return of those Products to OSI
and written certification by Licensee that it will no longer use the
returned Product in any manner whatsoever.
(b) Non-Standard Uses. Products are designed for standard commercial
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applications such as communications networks only and are not intended
for planning, construction, maintenance or direct operation of critical
systems or facilities, such as aircraft control systems and nuclear or
hazardous waste facilities. Licensee will not use Products for such non-
standard applications without OSI's prior consent, which will require
additional contractual safeguards. If Licensee uses Products in such a
non-standard application, it will be solely liable for the use and will
indemnify and hold OSI harmless from all loss, damage, expense or
liability in connection with that use.
(c) Aggregate Liability. NEITHER PARTY WILL BE LIABLE FOR DAMAGES IN EXCESS
-------------------
OF THE AMOUNTS PAID TO OSI FOR THE PRODUCTS OR SERVICES HEREUNDER (*).
THIS LIMITATION WILL (1) APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER
CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, AND (2) NOT
APPLY TO INDEMNITY UNDER SECTION 10 OR TO LIABILITY FOR REAL PROPERTY
DAMAGE, DEATH OR BODILY INJURY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE LIABLE PARTY OR ITS VENDORS.
(d) Damages. NEITHER PARTY WILL BE LIABLE, REGARDLESS OF THE FORM OF
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ACTION, FOR LOST DATA, REVENUES, PROFITS OR SAVINGS, OR FOR INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF THE
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.
(e) Time to Bring Claim. No action will be brought against either party
-------------------
more than 18 months after the cause of action first arises.
10. INFRINGEMENT INDEMNITY
----------------------
(a) Indemnification by OSI.
-----------------------
(1) OSI will defend Licensee against any claims, and indemnify and
hold Licensee harmless against any judgments, directly or
indirectly resulting from a claimed infringement or violation of
any copyright, patent or other intellectual property right with
respect to OSI Software arising under the laws of the United
States of America or the State of Washington. OSI will have no
liability for any such claims or judgments to the extent that they
are based on (a) the actions of Licensee, its employees or agents,
(b) use of a version, modification or adaptation of OSI Software,
if the infringement would have been avoided by the use of a then-
current unaltered release of OSI Software, (c) use of Combined
Software, if OSI Software operated independent of the Combined
Software is not the cause of the infringement, or
(d) use of OSI Software in combination with any computer software,
hardware or data not delivered in that combination by OSI.
(2) On receiving notice of a claimed infringement, and without
limiting its indemnification and hold harmless obligations as
stated in Section 10(a)(1), OSI may (a) settle on terms that
permit continued use of OSI Software, (b) discontinue distribution
of the OSI Software that is the cause of the claim and provide a
substitute for that OSI Software, (c) modify OSI Software to be
non-infringing, or (d) if the foregoing remedies are not
reasonably available, grant Licensee (i) a full refund for all OSI
software license fees paid to OSI between the effective date of
this Agreement and the date that the foregoing remedies are
determined to be "not reasonably available" if such determination
is made no later than 2 years from the effective date of this
Agreement or (ii) alternatively, if such determination is made
after 2 years from the effective date of this Agreement, a credit
for the amounts paid for the depreciated value of the relevant
portion of OSI Software (based on a (*) month life beginning on
the date of delivery to Licensee) and accept its return.
(3) THIS SECTION PROVIDES LICENSEE'S SOLE AND EXCLUSIVE REMEDY AGAINST
OSI FOR INFRINGEMENT OF PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
(b) Indemnification by Licensee. Licensee will defend OSI and its Vendors
---------------------------
against any claims, and indemnify and hold OSI and its Vendors harmless
against any judgments, directly or indirectly resulting from any claimed
infringement or violation of any copyright, patent or other intellectual
property right with respect to Products to the extent that Licensee
Software or any of the acts described in Section 10(a)(1) is the cause
of the claimed infringement or violation. THIS SECTION PROVIDES OSI'S
SOLE AND EXCLUSIVE REMEDY AGAINST LICENSEE FOR INFRINGEMENT OF PATENTS,
COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
(c) Cooperation. Notwithstanding the above, an indemnifying party is under
-----------
no obligation to defend or indemnify another party unless: (1) the
indemnifying party has been promptly notified of the claim or suit and
furnished with a copy of each material pleading, communication, notice
and other action relating to the claim or suit; (2) the indemnified
party permits the indemnifying party, at the indemnifying party's
expense, to assume sole authority to conduct the trial or settlement of
the claim or suit and any negotiations related to it; and (3) the
indemnified party promptly provides all information and assistance
reasonably requested by the indemnifying party in connection with the
claim or suit, all at the indemnifying party's expense for the
indemnified party's out-of-pocket expenses.
11. GENERAL
-------
(a) Confidential Information. In the course of their dealings, each party
------------------------
will acquire Information about the other, including Information
regarding business activities and operations, technical information and
trade secrets of the party and its partners. Each party will hold in
confidence any Information that it receives from the other party, not
use that Information for purposes other than performance of this
Agreement and not disclose the Information except to those employees
and advisors who (1) have a need to know the same, and (2) are bound by
law or have agreed in writing to maintain the Information in
confidence. Information includes all nonpublic aspects of the Products,
including programs, methods of processing, program design and
structure, the interaction and unique programming techniques employed,
and performance data and test results. It also includes the nonpublic
plans of each party and Vendors for new products and services, product
improvements and marketing strategies. If a party discovers Information
has been improperly used, disseminated or published, it will
immediately notify the other party and take all reasonable actions to
minimize the impact of the disclosure.
(b) Excluded Information. Even if marked as confidential, the obligations
--------------------
in Section 11(a) will not apply to Information generally available to
or known to the public, known by the receiving party without obligation
of confidentiality before the negotiations leading to this Agreement,
independently developed by the receiving party outside the scope of
this Agreement, lawfully disclosed to the receiving party without
restriction by a third party having the right to make the disclosure or
required to be publicly disclosed to a tribunal. In the case of
required disclosures to tribunals, the receiving party will promptly
notify the other party of the proceeding and fully assist the
disclosing party to obtain protective orders maintaining the
confidentiality of the Information.
(c) Compliance with Export and Other Laws. The Products, Services and all
-------------------------------------
related rights, technical data and information are subject to export
controls imposed by the U.S. Government and other countries. Licensee
will not transmit any Products or information relating to Products or
Services outside the United States of America, or to any person or
entity prohibited by the U.S. Government, whether by name, by
citizenship, residency or otherwise, and will comply with all
applicable export control restrictions. Each party, at its expense,
will comply with all applicable laws, regulations, codes and
ordinances. Neither party will be bound by any provision of this
Agreement to the extent, but only to the extent, that it violates
applicable law.
(d) Notices. Notices, consents, approvals and communications given under
-------
this Agreement will be in writing, in the English language, sent by
registered or certified mail, return receipt requested, postage
prepaid, or by a courier service that obtains signed acknowledgement of
receipt, to the address indicated below the signature block of this
Agreement or to such other address as the affected party designates by
prior notice and effective on the date received unless a later date is
otherwise indicated in the notice, consent or communication.
(e) Assignment. Except as provided for under Section 12 of this Agreement,
----------
this Agreement is not assignable by either party without the prior
consent of the other party. This Agreement will be binding on and inure
to the benefit of the parties and their respective successors and
permitted assigns.
(f) Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the laws of the State of Washington, United States of
America, excluding choice of law principles. The United Nations
Convention on Contracts for the International Sale of Goods will not
apply.
(g) Arbitration. Any dispute, controversy or claim arising out of or
-----------
relating to this Agreement will be finally resolved by binding
arbitration under the Rules of Arbitration of the United Nations
Commission on International Trade Law in effect at the time of the
arbitration ("UNCITRAL Rules"). There will be three arbitrators
selected as follows: one arbitrator will be selected by OSI, one
arbitrator will be selected by Licensee and the third arbitrator will
be selected jointly by the first two arbitrators, except that if either
party fails to select an arbitrator within 30 days after initiation of
arbitration, or if the first two arbitrators fail to select the third
arbitrator within 45 days after the initiation of arbitration, the
President of the Washington Bar Association at that time will make the
selection.
(1) The venue of the arbitration will be King County, Washington. On
reasonable notice to the other party and the arbitration panel,
parties will be entitled to use expert and rebuttal witnesses.
(2) Each party will pay its own fees and expenses incurred in
connection with the arbitration. Common expenses of the arbitration
(such as the fees and expenses of the arbitrators) will be borne by
the parties in such amounts or proportions as the arbitrators may
determine.
(3) The award of the arbitrators will be (a) by majority vote, (b) in
writing (including reasons), and (c) final and binding on the
parties. Judgment upon the award may be entered and enforced by any
court of competent jurisdiction.
(4) In no event will the arbitrators award damages that are not
permitted under the express terms of this Agreement.
(5) Without prejudice to Article 26 of the UNCITRAL rules (Interim
Measures of Protection), either party may apply to any court of
competent jurisdiction for such interim relief as it considers
appropriate, without the need to post bond or other security, or if
required, then the minimum bond or other security permitted.
(h) Equitable Relief. Any breach of a party's obligations with respect to
----------------
intellectual property rights will cause irreparable injury for which
there are no adequate remedies at law. The aggrieved party will be
entitled to equitable relief in addition to all other remedies that may
be available, without the posting of bond or other security, or if
required, then the minimum bond or security so required.
(i) Force Majeure. Neither party will be liable or held in default for a
-------------
failure or delay in performing its obligations under this Agreement,
other than to make payment for amounts owing or to comply with Sections
5 and 7, due to any cause beyond its reasonable control, so long as the
party takes all reasonable steps to avoid and minimize the impact of
such cause.
(j) Entire Agreement. This Agreement, including its Exhibits, constitutes
----------------
the entire agreement between the parties with respect to its subject
matter and supersedes all prior communications, both oral and written,
between the parties. Additionally, the terms and pricing regarding OSI
maintenance and support services stated in this Agreement replace the
terms and pricing regarding OSI maintenance and support services stated
in the End User License Agreement, OSI Contract Number EUA-150, dated
June 26, 1996 between OSI and Omnipoint Communications, Inc., as that
End User License Agreement has been amended and supplemented by
addenda. Except as set forth in Section 11(k), this Agreement may not
be modified, and no rights will be waived, except by an instrument in
writing signed by a duly authorized representative of both parties. If
the terms of this Agreement conflict with the terms of any of its
Exhibits, the Exhibits will prevail. As used in this Agreement, the
term "including" means by way of example and not limitation.
(k) Modifications to Exhibits. If a change to Exhibit 2 materially reduces
-------------------------
Support Services during a period for which Licensee has already paid
fees for those Support Services, Licensee may terminate those Support
Services for the remainder of the period and receive a pro rata refund.
Waivers. No waiver by a party of a breach of this Agreement will
-------
constitute a waiver of any other breach of the same or any other
provision of this Agreement.
(l) Execution. Neither this Agreement or any modification of it will be
---------
binding on either party unless it has been signed on behalf of such
party by one of its Executive Officers. This Agreement may be executed
in multiple counterparts, each of which will be deemed an original and
all of which will constitute together one agreement. A counterpart
delivered to a party by facsimile or similar electronic means will be
deemed an original, equivalent in all respects to a manually executed
counterpart.
(m) Intentional Risk Allocation. The provisions of this Agreement reflect
---------------------------
an informed, voluntary allocation between the parties of the risks
(known and unknown) that may exist in connection with this Agreement.
This voluntary allocation was a material part of the bargain between
the parties and the economic and other terms were negotiated and agreed
to by the parties in reliance on that allocation.
(n) Independent Contractors. The parties are independent contractors.
-----------------------
Under no circumstances will the employees of one party be deemed the
employees of the other for any purpose. This Agreement does not grant
authority for either party to act for the other in an agency or other
capacity, or to make commitments of any kind for the account of or on
the behalf of the other.
(o) Severability. If any provision of this Agreement is determined to be
------------
invalid or unenforceable, it will be deemed to be modified to the
minimum extent necessary to be valid and enforceable. If it cannot be
so modified, it will be deleted and the deletion will not affect the
validity or enforceability of any other provision unless, as a result,
the rights of either party are materially diminished or the obligations
and burdens of either party are materially increased so as to be unjust
or inequitable.
(p) Cumulative Remedies. Except as otherwise provided, the rights and
-------------------
remedies in this Agreement are cumulative and in addition to any other
remedies available at law or equity.
12. Other (*)
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representatives.
OBJECTIVE SYSTEMS INTEGRATORS, INC. VOICESTREAM WIRELESS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxx Xxxxxxxxx
------------------------------ ----------------------------------
Title: Managing Attorney Title: President & COO
Date: March 28, 2000 Date: March 28, 2000
Address for Notices:
Objective Systems Integrators, Inc. ________________________________________
000 Xxxx XXx ________________________________________
Xxxxxx, XX 00000 ________________________________________
Attn: Contracts Administrator Attn:___________________________________
Business Telephone: (000) 000-0000 Business Telephone (____) ____________
Facsimile for Notices: (000) 000-0000 Facsimile for Notices (____)____________
Exhibit 1(*)
---------
Exhibit 2
---------
Support Services
1. DEFINITIONS
------------
(a) Defect. An error in OSI Software or a failure of OSI Software to
------
conform substantially with its then-current documentationthat can be
reproduced by OSIor by Licensee for OSI's observation. Defects fall into
three categories as follows:
(1) Priority 1 (Production System Failure). Licensee's primary
--------------------------------------
production system (a) is completely unavailable, (b) has a problem
that occurs with sufficient frequency that the system is effectively
rendered inoperable, or (c) is affected such that critical business
processes are unavailable. In each case, no Workaround can be
immediately identified. For Priority 1 Defects, both OSI and
Licensee will commit full-time resources to resolve the situation.
(2) Priority 2 (System Impairment). Licensee's business processes are
------------------------------
impacted or impaired, but Licensee's primary production system still
functions.
(3) Priority 3 (Minor Fault). A Priority 1 or 2 Defect where a
------------------------
Workaround has been identified, the impact on Licensee is minor, the
Defect has no material operational impact on Licensee, or the Defect
does not require immediate attention.
(b) Emergency Release. A new version of OSI Software that incorporates
-----------------
Patches to rectify one or more Priority 1 or Priority 2 Defects. An
Emergency Release may include additional documentation.
(c) Patch. Replacement of, or provision of an addition to, a portion or
-----
module of OSI Software. A Patch may include additions or replacement to
existing documentation
(d) Remote Access. Access to Licensee's systems required by OSI to provide
-------------
Support Services, which may include dedicated connection, dial-up modem,
internet, telnet or other means by which OSI can gain the required
access.
(e) Workaround. A modification to the procedures Licensee follows or the
----------
data it supplies when using OSI Software. A Workaround is designed to
enable OSI Software to operate without materially and adversely
affecting Licensee's ability to use OSI Software in its production
environment.
2. GENERAL.
-------
(a) NetExpert Framework Products. Provided Licensee (1) is current in
----------------------------
paying all applicable Support Services charges, as set forth in the
Price List at the time Support Services charges are incurred, (2) is not
in material breach of this Agreement, and (3) has provided OSI with
timely Remote Access to the affected system, OSI will provide to
Licensee the Support Services specified below. Support Services will be
provided only for the current generally available release, with all OSI
recommended NetExpert(R), operating system, database and other patches
applied; provided, that for six months after the introduction of a new
release, OSI will use reasonable efforts to support the previous
release. After that time, OSI will provide Support Services for
superseded releases on a time and materials basis.
(b) Vendor Software. As part of Support Services, and provided they are
---------------
available for the form of Vendor Software licensed, OSI will procure for
Licensee's benefit annual maintenance agreements with its Vendors for
all Vendor Software.
(c) Application Components and Rulesets. Because Application Components and
-----------------------------------
Rulesets may vary between end-users even for the same network element,
management operation or other operation, and because Application
Components and Rulesets may be modified by others after delivery by OSI,
unless otherwise agreed to by OSI in writing, Support Services for
Application Components and Rulesets are provided only on a time and
materials basis. The following Sections describe the limited Support
Services available for Application Components and Rulesets when such
Support Services are made available by OSI.
3. UPDATE SERVICES
---------------
(a) NetExpert Framework Product Updates. On request by Licensee, OSI will
-----------------------------------
provide Licensee at no additional cost with new and interim versions of
NetExpert Framework Products at the time each version is generally made
available to its other customers. OSI will make such revisions and
enhancements to NetExpert Framework Products as it deems necessary and
appropriate. OSI may discontinue updating NetExpert Framework Products
at any time or may incorporate any portion of existing NetExpert
Framework Products into a new and distinct Product. In the latter case,
OSI will offer to make the new Product available to Licensee at its
then-current Price.
(b) Vendor Software Updates. Vendors will, from time to time, release new
-----------------------
products or new or interim versions of Vendor Software that OSI will
incorporate into or use with OSI Software. OSI will inform Licensee of
Vendor new releases when, in OSI's judgment, they may be appropriate for
use in or with OSI Software. For Vendor Software licensed to Licensee by
OSI, new releases which OSI has the right to sublicense will be made
available to Licensee in a timely manner consistent with their receipt
from the Vendor and at OSI's then-current Prices.
(c) Application Components and Rulesets. Generally, Application Components
------------------------------------
and Rulesets are only updated on a time and materials basis.
Occasionally OSI may update an Application Component or Ruleset for a
new release of network element software, but unless OSI has agreed
otherwise with Licensee, that updated Application Component or Ruleset
will be made available for license by payment of a separate license fee,
and integration and customization of that Application Component or
Ruleset into Licensee's system will be required either by OSI, by
Licensee or by a party contracted by Licensee.
4. EXTENDED WARRANTY SERVICES
--------------------------
(a) Extended Warranty. By maintaining a current subscription for Support
-----------------
Services for a Product, the limited warranty provided in Section 8(a) of
the Agreement will, subject to the terms of the Agreement, be extended
as set forth in this Section 4 for that Product.
(b) NetExpert Framework Products. If Licensee believes that there is a
----------------------------
Defect in NetExpert Framework Products Licensee will (1) promptly notify
OSI, describing the parameters, procedures and conditions that result
from the Defect in sufficient detail to permit OSI to isolate the code
that caused the Defect, and (2) provide OSI with all data files,
database rules, Licensee Software and Remote Access (and where required
by OSI, onsite access) required to reproduce and analyze the Defect. If
OSI is unable to reproduce the Defect, it will cooperate with Licensee
to determine the reason for this inability. If but only if neither party
is thereafter able to reproduce the Defect within 15 calendar days of
OSI's receipt of the information required to be provided to OSI pursuant
to Subsection 4(b)(2), OSI shall have no responsibility to take further
action.
(c) Application Components and Rulesets. When Support Services are
-----------------------------------
available for Application Components or Rulesets, the OSI Extended
Warranty only covers Application Components and Rulesets in the form
provided by OSI; on receipt by OSI of the notice described in Section
4(b), OSI will analyze the Application Component or Ruleset in the form
provided by OSI to determine if the Defect is reproducible. OSI will
have no obligation for Defects not in the original Application Component
or Ruleset provided by OSI.
(d) Vendor Software. For Vendor Software where a support agreement is in
---------------
place between OSI and the Vendor, OSI will use best efforts to verify
all Defects in the Vendor Software as quickly as is commercially
reasonable and to obtain a prompt resolution of the Defect from the
Vendor.
(e) Response Times. On notice of a Defect, OSI will during normal business
--------------
hours (unless Extended Services are purchased as described in Section
4(f)) (1) initiate work to verify the Defect, (2) advise Licensee of its
plans for resolving the Defect, and (3) use best efforts to resolve the
Defect, as follows, and OSI will
promptly notify Licensee if a Defect cannot be resolved within these
time periods and will cooperate in good faith with Licensee to arrive at
an alternative period for resolution:
(1) Priority 1. OSI will promptly initiate work to verify a Priority 1
----------
Defect within two hours of being notified and will attempt to
resolve the Defect within 5 business days.
(2) Priority 2. OSI will initiate work to verify a Priority 2 Defect
----------
no later than the next business day and will resolve the Defect
within 10 business days.
(3) Priority 3. OSI will initiate work to verify a Priority 3 Defect
----------
within 30 business days and will include a Patch for the Defect in
the next update or version of OSI Software provided Licensee as
applicable.
(f) Response. OSI will work diligently to resolve Priority 1 and Priority 2
--------
Defects with either Workarounds, Patches or Emergency Releases. Whenever
a workaround is practical OSI will verbally advise Licensee to the
effect, followed by a confirmation posted on WebTAC or otherwise
provided in writing to Licensee. If a Workaround does not resolve the
Defect, OSI will use best efforts to provide a Patch or Emergency
Release. If a Workaround is provided and resolves the Defect, it will be
downgraded to Priority 3.
(g) Extended Services. 24 hour-a-day, 7 days-a-week Support Services are
-----------------
available for NetExpert Framework Products at an extra charge as shown
in the Price List. If Licensee purchases this option, the following
additional Support Services are available for resolution of Priority 1
Defects:
(1) Response. Licensee will be provided with a support
--------
telephone/paging number. OSI will attempt to respond within 15
minutes of receiving Licensee's call, message or page and will
promptly initiate work to verify the Priority 1 Defect.
(2) Resolution. OSI will use best efforts to resolve the Priority 1
----------
Defect within 2 hours and, if unable to resolve the Defect within
that period, will continue diligently to pursue resolution of the
Defect.
5. GENERAL ASSISTANCE
------------------
As a part of Support Services, OSI will provide Licensee with a reasonable
amount of generalized advice regarding the proper installation, configuration
and operation of OSI Software in the form provided by OSI. Additional General
Support Services are available on a time and materials basis.
6. HOTLINE SERVICES
----------------
Telephone Hotline Support will be available from 6:00 a.m. to 5:00 p.m.,
Pacific Standard Time, Monday through Friday (excluding OSI holidays) for
Extended Warranty Services and General Support Services.
7. WEBTAC
------
Subject to system availability, Licensee will have 24 hour-a-day, 7 days-a-
week access to OSI's Technical Assistance Center on the World Wide Web, URL
xxxx://xxx.xxx.xxx/. Use of OSI's WebTAC is subject to the terms and
procedures posted on that site.
8. GENERAL MATTERS
---------------
(a) Contacts and Internal Support.
-----------------------------
(1) Licensee will designate a single employee who will be the primary
contact person and a single employee who will be the backup contact
person (either of whom is the "Contact Person") for all matters
related to Support Services. The Contact Person will have
successfully completed all relevant OSI training. Only the Contact
Person will be entitled to make use of Extended or Hotline Services
or OSI's WebTAC.
(2) All requests for Support Services and other assistance from within
Licensee's organization will be made through the Contact Person.
Licensee will be responsible for taking and documenting the
following actions to the extent reasonable and appropriate prior to
and after reporting any Defect to OSI, and Licensee will commit
reasonable appropriate resources to working on the Defect until the
source of the Defect is agreed upon:
(A) Maintaining an up-to-date record of system changes such as
upgrades, patches and modifications to operating systems,
databases, device software and Products;
(B) Gathering all relevant information from the user reporting the
Defect;
(C) Identifying the nature of the Defect;
(D) Reproducing the error and documenting the steps required for
that reproduction;
(E) Eliminating physical causes such as connections, device
malfunctions and memory and CPU problems;
(F) Examining logs, records, archives, core files and other user
documentation;
(G) Reaching where possible a tentative conclusion regarding
causation;
(H) Providing OSI with proper remote connectivity and other
documentation and assistance required in connection with the
Support Services; and
(I) To the extent appropriate, interfacing with distributors of
interfacing systems such as the operating system, database
programs and other hardware and software, and working with those
distributors to eliminate or identify errors in their systems.
(b) Commencement. The first year of Support Services for each item of OSI
------------
Software begins on its Installation Date ("Services Commencement").
Renewal fees will be paid in advance on or before the anniversary of
Services Commencement. The schedule of renewal fees will be specified in
the then-current Price List.
(c) Comprehensive Coverage. Because of the interconnection between versions
----------------------
of NetExpert Framework Products and Vendor Software, if Licensee renews
Support Services on at least one computer for one NetExpert Framework
Product, Licensee must renew Support Services for all NetExpert
Framework Products it has licensed. Licensee has the option to purchase
available Support Services, if any, for all, some or none of the
Application Components or Rulesets it licenses from OSI.
(d) Automatic Renewal. Support Services will automatically renew each year
-----------------
unless Licensee cancels by notice to OSI at least 30 days prior to the
end of any Support Services year.
(e) Cancellation.
------------
(1) Support Services will be canceled as to a Product if and when the
license granted to Licensee for that Product is terminated. Any
unearned, prepaid amounts paid for such Support Services shall be
refunded to Licensee immediately upon such termination.
(2) Support Services will also be canceled at the end of any annual
period if Licensee has not paid the applicable renewal fees before
the end of the term. For a cancellation of this type, Licensee will
not be entitled to any refund of previously paid fees of any type.
(3) If Support Services are canceled , they will be canceled, effective
immediately, for all OSI Software and Vendor Software. Cancellation
of any Support Services will not, of itself, constitute termination
of the Agreement.
(f) Reinstatement. Licensee can reinstate Support Services by paying all
-------------
Support Services fees that are in arrears, plus any costs, on a time and
material basis, that OSI incurs to update installations to the current
version of OSI Software.
(g) Modifications and Unauthorized Uses. OSI will have no obligation to
-----------------------------------
support OSI Software if the need for support arises because it (1) has
been modified by Licensee, or (2) is being used in violation of the
terms of the Agreement. If a reported Defect is not a Defect in Products
but is actually a problem caused by user error, modification of Products
by a party other than OSI, or third party hardware or software other
than Vendor Software for which Support Services have been purchased, OSI
will have the right to invoice Licensee on a time and materials basis
for efforts provided by OSI personnel above 8 hours for each such Defect
reported to OSI.
(h) Limitations. (*)
-----------
