EXHIBIT 10.37
Master Purchase Agreement
Between
Xxxxxxx, A Lockheed Xxxxxx Company
And
Triton PCS Operating Company L.L.C.
Table of Contents
-----------------
RECITALS................................................................. 2
1.0 DEFINITIONS......................................................... 2
2.0 AFFILIATE TRANSACTIONS.............................................. 4
3.0 ASSIGNMENT AND CHANGE OF CONTROL.................................... 5
4.0 TERM................................................................ 5
5.0 TERMINATION OF AGREEMENT............................................ 5
6.0 PAYMENT TERMS....................................................... 6
7.0 PRICING............................................................. 7
8.0 ORDERS.............................................................. 7
9.0 CHANGES TO SCOPE OF WORK (S) OR ORDERS.............................. 8
10.0 DOCUMENTATION....................................................... 8
11.0 INSPECTION.......................................................... 9
12.0 PACKING AND LABELING................................................ 9
13.0 ACCEPTANCE OF DELIVERABLES.......................................... 9
14.0 RETURN MATERIAL AUTHORIZATION ...................................... 9
15.0 SPARES.............................................................. 9
16.0 TRAINING............................................................ 10
17.0 ACCEPTANCE TESTING.................................................. 10
18.0 NEW VERSIONS OF EQUIPMENT AND SOFTWARE.............................. 10
19.0 PRODUCT DISCONTINUANCE ............................................ 10
20.0 WARRANTY OF EQUIPMENT SOFTWARE AND SERVICE.......................... 10
21.0 EQUIPMENT & SOFTWARE MAINTENANCE & SUPPORT SERVICE PERIOD........... 11
22.0 YEAR 2000 COMPLIANCE WARRANTY....................................... 11
23.0 SOFTWARE LICENSE .................................................. 12
24.0 TITLE AND RISK OF LOSS ............................................ 13
25.0 PROPRIETARY INFORMATION............................................. 13
26.0 OWNERSHIP .......................................................... 14
27.0 INFRINGEMENT........................................................ 14
28.0 PRODUCT LIABILITY AND INDEMINICATION................................ 15
29.0 INSURANCE........................................................... 15
30.0 INDEPENDENT CONTRACTOR.............................................. 15
31.0 WORK ON EACH OTHER'S PREMISES....................................... 16
32.0 CUSTOMER RESPONSIBILITIES........................................... 16
33.0 SECURITY ........................................................... 16
34.0 FEDERAL REQUIREMENTS................................................ 17
35.0 NOTICES............................................................. 17
36.0 GENERAL............................................................. 17
37.0 LIMITATION OF LIABILITY............................................. 18
38.0 DISPUTE RESOLUTION.................................................. 18
39.0 NON PROSELYTIZATION................................................. 19
40.0 EXCUSABLE DELAY..................................................... 19
41.0 EXHIBITS............................................................ 20
42.0 ENTIRE AGREEMENT.................................................... 21
page 1
MASTER PURCHASE AGREEMENT
BETWEEN
Triton PCS Operating Company L.L.C.
AND
XXXXXXX, A LOCKHEED XXXXXX COMPANY
This Master Purchase Agreement for Equipment, Software and Services (hereafter,
the "Agreement") is made and entered into this 8th day of June, 1999, (the
"Effective Date") by and between Lockheed Xxxxxx Corporation, acting by and
through Xxxxxxx, A Lockheed Xxxxxx Company, a Maryland corporation, having its
principal place of business at 00 Xxxx Xxxxx Xxxx, Xxxxxx, XX 00000-0000
("Xxxxxxx") and Triton PCS Operating Company L.L.C., a Delaware limited
liability company, having its principal place of business at 000 Xxxxxxxxxx Xx,
Xxxxxxx, XX 00000 ("Triton PCS"). Xxxxxxx and Triton PCS may hereinafter be
referred to individually as the "Party" or collectively "Parties."
The Parties agree as follows:
RECITALS
Triton PCS desires to procure equipment, software, and services that provide a
means to distribute wireless personal communications services over a microwave
data link from Xxxxxxx and Xxxxxxx desires to sell, license, and provide such
equipment, software, and services to Triton PCS.
Triton PCS and Xxxxxxx desire to enter into an agreement on the terms and
conditions under which Xxxxxxx will make available such equipment, software,
planning, and engineering services to support the deployment and expansion of
Triton PCS time division multiple access (TDMA) wireless personal communications
services network in the event that Triton PCS places and Order or Orders.
1.0 DEFINITIONS
As used herein:
"Area" means a major or basic trading area in Triton PCS personal communications
network.
"BTS" means the radio subsystem that handles Triton's PCS System radio traffic
in a designated cell. The BTS includes all amplification, modulation,
synchronization and other circuitry required to process a radio signal.
"Hub" means a co-located unit at the BTS site which translates the PCS frequency
into a microwave frequency enabling transmittal and receive functions over a
wireless data link.
"Data Link" means a unit which performs digital conversions of the data provided
by the "Hub" or "Remote" and transmits the data through data link antennas to
the specified location.
"Remote" means the unit located at a non-BTS site which performs bi-directional
signal processing to enable transmit and receive of a microwave frequency and a
wireless data link.
"System" means one "Hub" and one "Remote" which allows for the extension of a
BTS sector from the "Hub" to one "Remote' site.
"Carrier" means an electrical signal at a continuous frequency capable of being
modified to carry information (voice). It is the modifications or changes from
the carrier's basic frequency that becomes the information carried.
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"4 Carrier Microwave Repeater system" or "4 CMR system" means one hub and one
remote repeater which, in combination, will be used to transmit information on 4
carriers through data link antennas.
"6 Carrier Microwave Repeater system" or "6 CMR system" means one hub and one
remote repeater which, in combination, will be used to transmit information on 6
carriers through data link antennas.
"TDMA" means time division multiple access which is a method of digital
wireless communications transmission allowing a large number of users to access
(in sequence) a single radio frequency channel without interference by
allocating time slots to each user within each channel (Form of Digital
Modulation).
"Delivery Date(s)" means those date(s) required in the Triton PCS Order and
acknowledged by Xxxxxxx to deliver.
"Equipment" means the hardware portion of the TDMA Equipment listed in Exhibit A
of this Agreement.
"Facilities" means all cabling, amplifiers, towers, climate control structures,
power, and infrastructure owned and operated by the Triton PCS and\or telephony
Provider.
"RF Performance Acceptance Testing Procedures" shall mean the Factory Test
Procedure for the Hub and Remote, and ancillary equipment which identifies the
test equipment and procedures required to perform final acceptance testing. When
specifically required (For the initial Production Order), the RF Performance
Acceptance Test Procedure shall mean the Triton PCS-conducted testing of the
mutually approved RF Acceptance Procedure (Exhibit G1) for the first two (2)
systems delivered and installed in the field.
"Final Acceptance" shall mean acceptance testing by Triton PCS in accordance
with the specification.
"Firmware" means the Software embedded in the Equipment that allows the
Equipment to meet Specification.
"Initial Production Order" means the first order for Xxxxxxx Equipment in any
Triton PCS BTA or MTA or other relevant market area which serves as the test
site for Xxxxxxx Equipment.
Basic "OA&M" means the Software integration requirements that allow the Software
to integrate and perform functions which enable Xxxxxxx equipment to meet the
specification (See Exhibit D).
"Order" means a binding document issued by Triton PCS or other entities as
defined in 2.1, setting forth a purchase request for Equipment, Software and/or
Services to be delivered or provided according to the Delivery Date set forth in
the applicable Order. All Orders issued under this Agreement shall be subject to
the terms of this Agreement only unless the Parties expressly agree to
additional terms for that specific Order.
"Scope of Work" is a mutually agreed to document between the Parties attached
hereto setting forth the requirements in providing Equipment, Software and
Service in an Area to Triton PCS by Xxxxxxx. Delivery Dates for the Equipment,
Software and Service are also set forth the Scope of Work in which the terms and
conditions of this Agreement apply. Scope(s) of Work and other required
deliverables may be added upon both Parties' Agreement and by referencing the
applicable Order. Where the Scope of Work conflicts with this Agreeement, the
Scope of Work will govern the this document or Order. A Scope of Work is not a
requirement or prerequisite to place an Order under this Purchase Agreement.
"Service(s)" means any labor provided by Xxxxxxx hereunder, including but not
limited to, network planning, engineering, installation, integration, training
and/or repair services as set forth in an applicable Order.
"Software" means the computer programs and routines in object code format
integral to the Hub and Remote functions, as appropriate, and contained on a
magnetic tape, disc, semiconductor device, or other
page 3
memory device or system memory and consisting of (a) hardwired logic
instructions which manipulate data in the central processor and control input-
output operations, and error diagnostic and recovery routines, and (b)
instruction sequences in machine-readable code that control switch signaling
peripheral equipment and administration and maintenance functions as well as
associated documentation used to describe, maintain and use such programs and
routines. Software shall not include source code unless the Parties expressly
agree otherwise.
"Software Enhancements" will mean any improvements, modifications, additions,
and upgrades which add additional features and functionality to the System
either developed by Xxxxxxx or custom developed by Xxxxxxx for Triton PCS.
"Software License" means the license granted to Triton PCS by Xxxxxxx hereunder
to use the Software in accordance with this Agreement.
"Specifications" means that document(s) attached to and incorporated into this
Agreement (Exhibit D) that define the operating requirements and functionality
of the Equipment and Software.
"System Element Manager" or "SEM" is a PC based control unit that allows for
central management and control of the system from a climatically controlled
remote location. The SEM contains modem capability for control and data
interfaces to the "Hub".
"Triton PCS Affiliate or Partner" is specified in Section 2.1 of this Agreement.
Prior to acceptance of any Orders from an Affiliate or Partner, the Parties
agree that Xxxxxxx reserves the right to require, at its reasonable discretion,
establishment of a Non-Disclosure Agreement, a letter of credit or other
suitable instrument of credit guarantee, contractual points of contact, payment
addressees, and any other written agreements from the Affiliate or Partner to
verify their compliance with the terms of this Agreement and their ability to
fulfill their Order obligations.
"Triton PCS System" means Triton PCS BTS equipment with which Xxxxxxx Equipment
and Software is designed to interface with at the required frequency as set
forth in the Specifications.
2.0 AFFILIATE TRANSACTIONS
2.1 This Agreement is entered into by Triton PCS on its own behalf
and for the benefit of all Triton PCS-affiliated entities or partners (each an
"Triton PCS Affiliate or Partner"). An Triton PCS Affiliate or Partner is
defined for the purpose of this Agreement as: a) any entity in which Triton PCS
holds or controls an equity or similar interest; b) any entity which holds an
equity or similar interest in Triton PCS; c) any U.S. subsidiary, and any U.S.
corporation, partnership, limited liability company, limited liability
partnership, joint venture or other entity controlling, controlled by or under
common control with Triton PCS, directly or indirectly by or through one or more
intermediaries; d) any U.S. entity that is authorized to sell digital wireless
products or services under the "Triton PCS or SunCom" brand names or any other
brand name(s) subsequently primarily used by Triton PCS to market its digital
wireless products and services; e) any entity to whom Triton PCS is required by
law, regulation or contract to provide products or services involving products
or services to be provided pursuant to this Agreement; or, f) AT&T Wireless or
any AT&T Wireless affiliate.
2.2 All references to Triton PCS refer equally to each Triton PCS
Affiliate or Partner executing an Order with terms in accordance with this
Agreement. Triton PCS or any Triton PCS Affiliate or Partner makes no
commitment, or any liability accepted, except as set forth in a properly signed
Order. All communications and invoices must be directed to the Triton PCS
Affiliate or Partner issuing the Order under the instructions contained in the
Order. Services performed on behalf of any Triton PCS Affiliate or Partner will
be invoiced to and collected from that Triton PCS Affiliate or Partner only.
Only the Triton PCS Affiliate or Partner issuing a specific Order under this
Agreement will incur any obligation or liability for any claim which may arise
from or relate to that Order.
page 4
3.0 ASSIGNMENT AND CHANGE OF CONTROL
3.1 Neither Party may assign all or any part of this Agreement
without the consent of the other party (and such consent shall not be
unreasonably withheld) except Triton PCS may assign it to a Subsidiary,
Affiliate, Partner or successor through merger or acquisition of substantially
all of Triton PCS's assets without such consent.
4.0 TERM
4.1 This Agreement will commence on the date first set forth
above and will continue for a period of three (3) years ("Initial Term"). This
Agreement may be extended beyond the Initial Term for successive one (1) year
periods by mutual written agreement of the Parties hereto (each a "Renewal
Term"). The terms, conditions and provisions of this Agreement will apply to all
Orders issued by Triton PCS for any Equipment, Software or Services during the
Initial Term and any Renewal Term, unless otherwise agreed to in writing by the
Parties.
5.0 TERMINATION OF AGREEMENT
5.1 This Agreement will terminate at the end of the Initial
Term, unless extended by mutual written agreement of the Parties hereto, in
accordance with Section 4.0. Any such termination in accordance with the terms
of this Agreement will in no way terminate, modify, amend or otherwise affect
Triton PCS obligations to pay all sums due and outstanding or Xxxxxxx'
warranties or indemnities hereunder (or the enforceability thereof) in
connection with the Equipment and Software or Services provided pursuant to the
terms of this Agreement.
5.2 Termination For Cause. In addition to any other
termination rights provided pursuant to the terms of this Agreement, either
Party has the right to terminate this Agreement in its entirety without any
penalty or payment obligation (with the exception of any down payment amount
specified in Item 6.0 upon the occurrence of any Event of Default (each an
"Event of Default") as set forth below. The occurrence of any of the following
will constitute an Event of Default:
(a) Either Party (i) files a voluntary petition in bankruptcy or
has an involuntary petition in bankruptcy filed against it that
is not dismissed within sixty (60) days of such involuntary
filing, (ii) admits the material allegations of any petition in
bankruptcy filed against it, (iii) is adjudged bankrupt, or (iv)
makes a general assignment for the benefit of its creditors, or
if a receiver is appointed for all or a substantial portion of
its assets and is not discharged within sixty (60) days after his
appointment; or
(b) Either Party commences any proceeding for relief from its
creditors in any court under any state insolvency statutes; or
(c) Either Party violates any Applicable Law and the effect of
such violation materially impairs the other Party's ability to
perform its obligations under this Agreement; or
(d) Either Party breaches any other provision of this Agreement
and the effect of such breach impairs the other Party's ability
to perform its obligations under this Agreement.
(e) Either Party fails to make payments of undisputed amounts
(considered separately and not in aggregate) of less than fifty
thousand dollars ($50,000) due the other Party pursuant to the
terms of this Agreement, provided that such failure has continued
for at least fifteen (15) days after the Party has written notice
of its intent to so terminate on account of such overdue amount.
(f) Failure of Xxxxxxx' Equipment to pass the Acceptance Test as
defined in this Agreement.
page 5
5.3 Remedies. If any Event of Default exists, the non-
defaulting Party may, without prejudice to any other rights or
remedies in this Agreement or at law or in equity, terminate
this Agreement upon written notice to the defaulting Party;
provided that the non-defaulting Party will have first
provided to the defaulting Party the following periods of
notice and opportunity to cure:
(a) in the case of a Event of Default specified in Subsections
5.2 (a) and 5.2 (b), no notice or opportunity to cure will be
required from the non-defaulting Party; and
(b) in the case of any other Event of Default, the non-
defaulting Party will have provided thirty (30) days prior
written notice, and the defaulting Party will have failed to
diligently pursue such cure and failed to remedy the breach
entirely by the end of such thirty (30) day notice period. In
the case where the defaulting Party required greater than
thirty (30) days to remedy a breach, such Party shall submit a
plan to the non-defaulting Party for a mutual agreement.
(c) If, upon receipt of a notice of breach, the allegedly
breaching Party disputes the allegation, it shall so advise
the notifying Party in writing questioning the breach
allegation of which the period in (b) above shall not begin.
Both parties shall then be obligated to promptly confer in an
effort to resolve the allegation.
5.4 Continuing Obligations. Termination of this Agreement
for any reason (i) will not relieve either Party of
its obligations with respect to the confidentiality
of the Proprietary Information as set forth in this
Agreement, (ii) will not relieve either Party of any
obligation which applies to it and which expressly or
by implication survives termination, and (iii) except
as otherwise provided in any provision of this
Agreement expressly limiting the liability of either
Party, will not relieve either Party of any
obligations or liabilities for loss or damage to the
other Party arising out of or caused by acts or
omissions of such Party prior to the effectiveness of
such termination.
5.5 Triton PCS may terminate this agreement upon written
notice to Xxxxxxx if the first two 4 CMR systems
delivered hereunder are not Accepted within 30 days
after delivery. Upon such termination, Triton PCS
shall return the 4 CMR systems to Xxxxxxx and Xxxxxxx
shall return the Initial Payment (as defined
hereinafter) to Triton PCS.
6.0 PAYMENT TERMS
6.1 Invoices must be sent to the following address and
include:
Triton PCS Operating Company L.L.C.
Accounts Payable Department
000 Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
(i) the applicable Order number;
(ii) the date shipment was made and the shipping point;
(iii) that the line item on the Order matches the line item
on the invoice, including the price and description,
unless there has been a price decrease.
6.2 Invoicing/Payments will occur at the following times:
6.2.1.1 Equipment:
4 CMR System
------------
page 6
$54,540 per unit. Payment upon Master Purchase
Agreement execution in the amount of $1,000,000
("Initial Payment") (Concurrent execution of
MPA and 440 System Order), $1,000,000 upon
acceptance of the 4 CMR system, Refundable
under terms of Termination (i.e. ATP non-
compliance)
6 CMR System
------------
100% upon Delivery of each unit at $50,000 per
unit
6.2.1.2 Installation Support $2,500 per system installation support
6.2.1.3 Technical Services Billable to Triton PCS monthly at an
hourly rate of $150 for Engineers and
$100 per hour for Technicians (No
Engineering Degree)
6.2.1.4 Software Maintenance Pro-rated percentage monthly
and Support Services
6.2.1.5 Spare Equipment: 20% on Order
80% on Delivery
6.3 With the exception of the $1,000,000 due at execution of this
Agreement and placement of the Order, payment terms are net thirty (30)
days and are not subject to set off or recourse. In the event Triton PCS
reasonably disputes the invoice amount set forth by Xxxxxxx, then Triton
PCS will so notify Xxxxxxx in writing immediately upon receipt of invoices,
specifying the disputed items or issues. Triton PCS shall make payment of
all undisputed amounts on the invoice and shall escrow disputed amounts
within five (5) working days.
7.0 PRICING
7.1 Pricing for Equipment, Software and Services are as set forth in
Exhibit A. Pricing will remain firm for the Term of this Agreement. Execution of
this Master Purchase Agreement shall be accompanied by an Order, from Triton, to
Xxxxxxx, in the amount of $22,036,320 for 440 systems (excluding Spares and
Installation support) units subject to the provisions set forth herein.
7.2 All prices are net of applicable taxes and shipping charges. Triton PCS
will be billed for applicable taxes unless an exemption certificate is provided
by Triton PCS. Triton PCS designated carrier specified on the PO, shipping
charges third party collect will ship equipment and Software purchased under
this Agreement to Triton PCS. Unless Xxxxxxx is directed by Triton PCS in
writing, partial shipments are authorized by Triton PCS and may be invoiced
separately. Xxxxxxx shall be responsible for risk of loss of damage of goods
until delivery is made in accordance with this Agreement.
7.3 Triton PCS will be responsible to procure export licenses and comply
with all U.S. and other applicable export regulations if Triton PCS intends to
export or re-export Equipment and Software or require overseas Services overseas
and/or in support of non-US entities.
7.4 Xxxxxxx' hereby grants Triton PCS most favored customer status
throughout the delivery period of this Agreement for the 440 CMR systems
ordered. Should Xxxxxxx subsequently sell Equipment to any other domestic
customer at prices lower than those cited in Exhibit A then (i) this Agreement
shall be amended so as to cause Xxxxxxx to provide Triton PCS with such more
favorable prices and terms for all future purchases or undelivered units.
page 7
*Note: 6.2.1.2 In addition to on-site installation support to the Triton CMR
installation team, Xxxxxxx is prepared to support Triton in resolving any
initial operational or performance anomalies beyond basic installation and turn-
on. Qualified technical representatives will be on-site to support such
anomalies. This support will conclude upon successful operation of the unit to
specification.
8.0 ORDERS
8.1 Triton PCS may exercise its right to order Equipment, Software
and Services by providing Xxxxxxx with an Order in writing, by original
document, or fax. Each such Order must set out the Contract number, the Scope of
Work number, model number, description of the Equipment, Software or Services
being ordered, quantity, price, ship-to location, and requested Delivery Dates
and references to this Agreement. Triton PCS shall have an obligation to buy,
and Xxxxxxx shall have an obligation to sell, a quantity of 8 each 4 CMR systems
under Order to Triton and 432 each 6 CMR systems under Order to Triton (200 6
CMR systems in calendar year 2000 and 232 6 CMR systems in calendar year 2001).
Sales of 6 CMR systems to other Xxxxxxx' customers shall be credited toward
Triton PCS' obligation.
8.2 All Orders placed with Xxxxxxx are subject to the terms and
conditions of this Agreement and all additional terms and conditions of any
mutually agreed to Scope of Work. This Agreement, Scope of Work and the
acknowledged additional terms contained on the face of Triton PCS Order shall
take precedence over generic printed forms that these documents or any Xxxxxxx'
invoice may have.
8.3 Upon execution of this Agreement and following Acceptance of the
4 CMR systems, Triton PCS will provide Xxxxxxx a monthly, non-binding, rolling
forecast for twelve (12) months of estimated delivery dates for the 400 6 CMR
systems and any additional 6 CMR systems requirements in a format mutually
agreeable between Xxxxxxx and Triton PCS. Triton PCS understands that to secure
the forecasted Equipment, it must place an Order no later than three (3) months
prior to its required Delivery Date.
8.4 Once an Order is placed, the following cancellation charges apply
on Orders canceled without cause:
8.4.1 First 8 4 CMR Systems ordered - No cancellation
provision
8.4.2 432 6 CMR Systems:
Cancellation cost of $20,000 per system against minimum
quantity order of 200 in FY 2000. Payable on 30 December
2000. If Triton has taken delivery 80% of the units
within the specified period, Xxxxxxx shall grant a three
month (3) grace period on the balance of Systems.
Cancellation cost of $23,000 per system against minimum
quantity Order of 200 in FY 2001. Payable on 30 December
2001. If Triton has taken delivery 90% of the units
within the specified period, Xxxxxxx shall xxxxx a three
month (3) grace period on the balance of Systems.
8.4.3 Any Orders beyond the 440 CMR Systems
91-120 days prior to delivery - 10% of Order value
61-90 days prior to delivery - 20% of Order value
31-60 days prior to delivery - 30% of Order value
1-30 days prior to delivery - Not cancelable
9.0 CHANGES TO SCOPE OF WORK(S) OR ORDERS
9.1 Any Order placed hereunder may be altered only by express mutual
agreement of both Parties. In such event, Xxxxxxx will use reasonable efforts to
comply with such change requests at no charge to Triton PCS. However, if such
changes result in a decrease or increase in cost, in the time for delivering or
in performance of the Order, a mutually acceptable adjustment in the price,
delivery time or performance will be made to the Order before work is performed.
If Xxxxxxx determines that it can comply with part or all of a change request,
it will advise Triton PCS promptly in writing.
page 8
9.2 If Xxxxxxx finds that it must make changes to the Equipment,
Software and/or Services that Triton PCS has on Order or has been agreed to be
provided in a Scope of Work with Xxxxxxx that affects form, fit, function or
performance or are required for purposes of safety, Xxxxxxx will provide Triton
PCS with prior written notice of such change. Triton PCS will then in its sole
discretion, either sign the document allowing the change and accepting the
change or reject the change in writing without penalty or charge to Xxxxxxx.
Upon such rejection, Xxxxxxx will supply the Equipment, Software and/or Services
as specified in the order.
10.0 DOCUMENTATION
10.1 Xxxxxxx will provide Triton PCS with access to relevant product
documentation, planning and engineering guides as specified in Exhibit A to
enable Triton PCS to reasonably install and maintain the Equipment and Software.
11.0 INSPECTION
11.1 Equipment and Software may be inspected by Triton PCS prior to
delivery by Xxxxxxx on a non-interference basis. Xxxxxxx must provide, without
charge, reasonable assistance for such inspections. Triton PCS may require re-
testing by Xxxxxxx if a documented quality problem is identified during
inspections.
11.2 Triton PCS' right to inspect and test in the event of an
identified and documented quality problem does not relieve Xxxxxxx from its
testing, inspection, warranty and quality control obligations.
11.3 Xxxxxxx will inspect Equipment and Software prior to shipment in
accordance with its normal practices. Xxxxxxx reserves the right to charge for
other inspections or tests requested by Triton PCS
11.4 Xxxxxxx will use reasonable commercial efforts to establish and
maintain a quality system conforming to acceptable industry practices.
11.5 Xxxxxxx will provide a Certificate of Compliance and Certified
Test Data for each "Order". The Test Data Sheet shall be in Xxxxxxx' format and
shall reflect the successful completion of the Factory Acceptance Test
Procedure.
12.0 PACKING AND LABELING
12.1 Xxxxxxx will properly pack and label all shipments in accordance
with Xxxxxxx' commercial packing, packaging and marking procedure. Xxxxxxx will
charge a reasonable fee for packing and/or packaging for non-standard shipping
or packaging that Triton PCS may request. Xxxxxxx will provide labeling and
packaging of the Equipment and Software to indicate the Order number, model
number, serial number and any labeling required by the FCC.
13.0 ACCEPTANCE OF DELIVERABLES
13.1 Xxxxxxx will deliver all Ordered Equipment, Software and Services
according to the agreed to times set forth in an Order and/or applicable Scope
of Work. A failure of Xxxxxxx to deliver by the Delivery Date(s) may cause
Triton PCS damages which will be impracticable to calculate. Where shipments
from Xxxxxxx to Triton PCS, do not meet the Delivery Date set forth in Exhibit
A, then Xxxxxxx shall pay liquidated damages for late delivery or performance as
follows: If delivery on the Delivery Date is delayed more than seven (7) days
beyond the Delivery Date for those items, Xxxxxxx agrees to pay liquidated
damages in the sum of two percent (2%) of the price of the delayed item set
forth in the Order for each business week or partial business week after the
seventh day period, with a cap of twenty percent (20%) on the delayed item.
Acceptance criteria will be as specified in this Agreement. Xxxxxxx' payment of
such damages shall constitute Triton PCS' sole remedy for late delivery of that
item and a waiver by Triton PCS of its rights under Section 5.
page 9
14.0 RETURN MATERIAL AUTHORIZATION
14.1 Returned Equipment and Software must be accompanied with a
Xxxxxxx-provided Return Material Authorization (RMA) number. Xxxxxxx will issue
Triton PCS an RMA number within twenty-four (24) hours of initial request by
Triton PCS.
14.2 Triton PCS will return all allegedly defective Equipment and
Software freight prepaid and Xxxxxxx will repair or replace the defective
Equipment and/or Software in accordance with the applicable specifications to
this Agreement. Spare Equipment and Software may be shipped to Triton PCS while
Equipment or Software is being repaired.
15.0 SPARES
15.1 Spares shall be procured with the initial Production Order. The
list of spares to be delivered to Triton PCS is set forth in Attachment 1 of
Exhibit X. Xxxxxxx agrees to support the Triton PCS maintenance requirements
through the sale of spare components at the recommended sparing levels.
16.0 TRAINING
16.1 Xxxxxxx will provide to Triton PCS training, prior to Final
Acceptance of Xxxxxxx Equipment and Software, and subsequent training, [prior to
Xxxxxxx delivery], for new releases, enhancements and maintenance releases of
Xxxxxxx' Equipment and Software which Triton PCS procures. Xxxxxxx' training
will be provided at a mutually agreed upon location for requisite Triton PCS
training personnel, consultants and agents. The schedule, deliverables,
materials, location and attendees for training will be mutually developed and
agreed to by both Parties with training content to be presented in different
formats, (if applicable) depending on the operational and user interface level
of course content and Triton PCS needs.
16.2 Xxxxxxx grants permission to Triton PCS to make copies of the
material provided in any training received from Xxxxxxx, for internal Triton PCS
use in conjunction with Xxxxxxx Equipment and Software.
16.3 Promptly, upon execution of this Agreement, Xxxxxxx will
establish a training coordinator and will ensure that Triton PCS receives
training as set forth above.
16.4 Xxxxxxx agrees that all its personnel directly assigned to
provide training Services under this Agreement will be adequately trained on
Xxxxxxx' Equipment. Furthermore, Xxxxxxx will provide for the periodic technical
training of Xxxxxxx' personnel such that the Xxxxxxx personnel providing
Services subscribed to by Triton PCS will receive the necessary understanding of
current technology and capabilities.
16.5 Xxxxxxx' prices for training are set forth in Exhibit A.
17.0 ACCEPTANCE TESTING
17.1 Acceptance testing shall be based upon Xxxxxxx conduct of the
Factory Acceptance Test, and delivery of the hardware to the FOB point (Xxxxxxx
facilities)as specified in G2. Field acceptance testing shall be conducted by
Triton on the first two 4 CMR and 6 CMR systems delivered in accordance with
Exhibit G1. Triton has the right to cancel the order in the event that the 4 CMR
or the 6 CMR unit fails Field Acceptance Testing within 30 days of product
delivery.
page 10
18.0 NEW VERSIONS OF EQUIPMENT AND SOFTWARE
18.1 Xxxxxxx will provide Triton PCS sixty (60) days prior notice of
all New TDMA Equipment, software or services that Xxxxxxx plans
to offer for sale to the general public.
18.2 Xxxxxxx shall use best efforts to evaluate and design a 12 CMR
system. Triton PCS shall have the option to purchase any such 12
CMR System from Xxxxxxx at such price and on such terms as may be
mutually agreed to by the Parties. In the event that Xxxxxxx is
unable to provide a 12 CMR design that meets Triton's needs by
December 31st, 1999, the cancellation cost for the 432 units will
be reduced to $10,000 per system.
19.0 PRODUCT DISCONTINUANCE
19.1 Xxxxxxx will provide Triton PCS with a six (6) month prior
written notice if Xxxxxxx elects to discontinue the manufacture of any TDMA
version of the Equipment or discontinue its support a version of Software which
Triton PCS has not previously procured. Xxxxxxx will allow Triton PCS the
opportunity to make a reasonable, "life-time" purchase of Equipment and/or
license of Software to be discontinued. Xxxxxxx will maintain the ability to
repair, maintain or supply replacement parts or their functional equivalent for
a period of two (2) years from discontinuance of such Equipment or Software to
Triton PCS. Xxxxxxx will allow Triton PCS to order such replacement parts
through Xxxxxxx.
20.0 WARRANTY OF EQUIPMENT, SOFTWARE AND SERVICE
20.1 The warranty provisions in Exhibit B hereto set forth the
warranty and remedies that Xxxxxxx provides Triton PCS for any Order placed
under this Agreement.
20.2 Xxxxxxx will also offer Triton PCS a three (3) year extended
warranty plan for the Equipment and Software acquired under any Order ("Extended
Maintenance Program") which may be purchased for a period of thirty (30) days
after expiration of the original warranty period which Triton PCS may elect to
purchase said plan at its sole discretion, as specified in Exhibit A.
21.0 EQUIPMENT AND SOFTWARE MAINTENANCE AND SUPPORT
21.1 Maintenance and Support Service. Xxxxxxx will perform the
Equipment and Software Maintenance and Technical Support Services to the extent
procured by Triton PCS as described in Exhibit F of this Agreement (the
"Equipment and Software Maintenance and Technical Support Service Program").
21.2 Xxxxxxx will also designate an Account Director who will: a) be
available to Triton PCS at reasonable times; b) be responsive to Triton PCS
questions, problems and concerns; c) be on-site at critical phases, including
testing and integration; and d) be the primary liaison between Xxxxxxx and
Triton PCS for planning, implementation and support e) have access to executive
management to resolve issues and concerns in a timely manner.
21.3 Xxxxxxx will immediately notify Triton PCS by telephone
of any high priority problems with the Equipment or Software and its resultant
corrective action. Any corrective upgrade, update, enhancement, release, fix,
correction, or modification to the Equipment or Software released by Xxxxxxx to
Triton PCS will be marked accordingly and promptly delivered to the Triton PCS
shipping address set forth in the Scope of Work.
22.0 YEAR 2000 COMPLIANCE WARRANTY
22.1 Xxxxxxx warrants that the Software licensed under any Order is
Year 2000 Compliant. For purposes of this Agreement, Year 2000 Compliant" means
that the Software will perform, operate and function when used prior to, during
and after the calendar year 2000 A.D. without error relating to date data,
specifically including any error to, or the product of, date data which
represents or references different
page 11
centuries or more than one century, and including without limitation of the
foregoing, the ability of the Software to:
(a) Manage and manipulate data involving dates, including but
not limited to, single century, multi-century and leap year
formulas, without causing an abnormal end to the application or
generating incorrect values involving such dates;
(b) Provide that all date-related user interface functionalities
and data fields include the indication of century;
(c) Provide that all date-related data interface functionalities
and data fields include the indication of century;
(d) Provide that all date-related user interface functionalities
include the indication of century; and
(e) Provide that all logic pertaining to dates will work within
the context of the Software to enable a user to easily identify
or use the century portion of any date fields without special
processing.
22.2 The foregoing warranty shall not apply in the event that the
noncompliance is caused by the following:
(a) The Software is combined, or used in connection with,
software that is not Year 2000 compliant; or
(b) The Software is altered, modified, or enhanced by a party
other than Xxxxxxx
EXCEPT AS SET FORTH IN EXHIBIT B, THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND OF MERCHANTIBILITY.
23.0 SOFTWARE LICENSE
23.1 Right To Use (RTU) License. For each Software acquired under an
Order, Triton PCS is hereby granted a perpetual, non-exclusive, non-
transferable, fully paid-up, object code license to use the Software] in a given
Area solely in conjunction with Equipment provided under this Agreement ("RTU
License"), subject to payment of any fees in accordance with the terms of this
Agreement and the Scope of Work. This RTU license does not apply to use of the
Software with equipment purchased from other than Xxxxxxx but which performs
substantially the same function as Equipment purchased from Xxxxxxx under this
Agreement. The RTU License granted hereunder includes any Triton PCS Affiliate
and Partner as defined in this Agreement. This license automatically extends to
all updates or upgrades supplied by Xxxxxxx to Triton PCS.
23.2 Reverse Engineering. Xxxxxxx expressly prohibit Triton PCS from
reverse engineering any Software and Equipment provided under this Agreement.
23.3 Software Maintenance and Support Service Program. Beginning with
the Final Acceptance of the Equipment and Software installed, Xxxxxxx will make
available to Triton PCS a Software Maintenance and Support Service Program at an
annual cost set forth in Exhibit A. Such program will provide Triton PCS with
the services described in Exhibit X. Xxxxxxx agrees to support the Software and
Software Product with a Software Maintenance and Support Service Program for a
minimum of five (5) years from expiration of its warranty at the pricing stated
in the Exhibit A.
23.4 Future Support. Xxxxxxx' on-going support of the Equipment and
Software past the initial five (5) years, including corrections of non-
conformance, technical support and annual Software
page 12
maintenance releases, may be provided by Xxxxxxx at the agreed to then-current
Xxxxxxx Extended Software Maintenance and Support Service Program fee.
23.5 Supplier provided Third Party Software. During the term of this
Agreement, Xxxxxxx will maintain interoperability of Xxxxxxx' Software with
third Party software either embedded in the Equipment or operating on its own
which Xxxxxxx supplies or authorizes. Triton PCS will provide reasonable advance
written notice of any third Party software substitutions or additions and the
Parties will amend the Scope of Work and Specifications accordingly.
23.6 Alterations to Software. Any alterations or modifications to the
Software and/ any its source code subsequently provided by Triton PCS will void
all warranties and obligations of Xxxxxxx under this Agreement as to such
Software and any Equipment which such Software is used in conjunction with. Any
alterations and modifications which are made to the Software by Xxxxxxx at
Triton PCS request will allow Xxxxxxx to: a) charge Triton PCS additional fees
for any additions made that increase Xxxxxxx' requirement to meet Specifications
to account for such alterations and modifications, and b) charge Triton PCS a
reasonable inspection fee to confirm, to Xxxxxxx' reasonable satisfaction, the
functionality of the software developed, compatibility of such alteration or
modification of the software and the resultant suitability for coverage under
the warranty or Equipment and Software Maintenance and Support Service Period.
Such fee charged for such additions will be consistent with the fees charged for
the same (or similar) software as described in the Scope of Work, and will be
pro-rated as necessary to make charges coterminous with existing warranty or the
Equipment and Software Maintenance and Support Service Period. If no maintenance
fee for similar software exists, Xxxxxxx will decide upon a reasonable fee. If
software alterations or modifications are outside the realm of Xxxxxxx'
expertise, or servicing abilities, Xxxxxxx and Triton PCS will come to a mutual
agreement on the handling of such changes to the Equipment and Software.
23.7 Relocation. Triton PCS will have the right to relocate the
Equipment and/or Software, either temporarily or permanently, as the case may
be, with notice of such relocation given within 30 days thereafter to Xxxxxxx,
and without any charge, provided the relocation is done by Triton PCS at Triton
PCS expense. Xxxxxxx will have the right to inspect and test any such relocated
Equipment and Software to ensure functionality in accordance with the
specifications contained herein. Should the Equipment or Software fail such
inspection or test as a result of the relocation, the warranty provisions
contained herein shall become null and void with respect to such relocated
Equipment and Software.
23.8 Maintenance Releases. Xxxxxxx warrants that any and all Software
maintenance releases made to the Software by Xxxxxxx will not adversely affect
the operability or maintainability of Triton PCS System.
23.9 Software Documentation. Existing documentation on all object code
will be provided to Triton PCS prior to release of any Software maintenance
release. Such Documentation will be provided in an electronic format of Triton
PCS designation.
24.0 TITLE AND RISK OF LOSS
24.1 Title and risk of loss of any Equipment delivered (but in no case
Software) furnished to Triton PCS pursuant to this Master Purchase Agreement and
any Orders issued hereunder will pass to the Triton PCS upon delivery thereof.
Delivery shall be free on board (F.O.B.) at Xxxxxxx Facility.
25.0 Proprietary Information
25.1 Each Party acknowledges that while performing this Agreement it may
have access to trade secrets owned by the other Party , including, but not
limited to, products or planned products, service or planned service, suppliers,
data, financial information, computer software, processes, methods, knowledge,
inventions, ideas, marketing promotions, discoveries, current or planned
activities, research, development or other information relating to the other
Party's business activities or operations or those of its suppliers
("Proprietary Information").
page 13
25.2 This Agreement creates a confidential relationship between Triton PCS
and Xxxxxxx. Each Party will keep the other's Proprietary Information
confidential and, except as authorized by each Party in writing, Each Party may
only use Proprietary Information to perform this Agreement, and may only make
copies necessary for performing this Agreement. Each Party will label all
Proprietary Information as proprietary. Upon cessation of work, or upon either
Parties request, proprietary information will immediately be returned to the
requesting Party including all proprietary documents and other proprietary
materials that contain or relate to Proprietary Information.
25.3 The terms and conditions of Pre-existing Non-Disclosure Agreements
shall remain full effect and force in accordance with their expiration and
protection provisions.
25.4 Proprietary Information does not include information that a Party can
demonstrate by written documentation:
(a) is rightfully known to such Party prior to negotiations leading
to this Agreement;
(b) is independently developed by that Party without any reliance on
Proprietary Information;
(c) is or later becomes part of the public domain or is lawfully
obtained by that Party from a third Party.
25.5 Each Party acknowledges that disclosure of Proprietary Information by
the other may cause irreparable injury, that is inadequately compensable in
monetary damages. Accordingly, either Party may seek injunctive relief in any
court of competent jurisdiction for the breach or threatened breach of this
Section, in addition to any other remedies at law or in equity.
26.0 OWNERSHIP
26.1 All equipment, materials, drawings, software or data that Xxxxxxx
receives directly from Triton PCS is the property of Triton PCS ("Triton PCS
Property"). Xxxxxxx must return all Triton PCS Property upon Triton PCS request,
or upon the termination or expiration of this Agreement, whichever is earlier.
Xxxxxxx is responsible and must account for all Triton PCS Property. Triton PCS
Property may only be used in Xxxxxxx' performance of this Agreement. Triton PCS
may inspect any agreements and associated records, including invoices, by which
Xxxxxxx acquires Triton PCS Property.
26.2 Triton PCS and Xxxxxxx agree that all intellectual property generated,
conceived or developed or furnished under this Agreement by either Party,
including but not limited to proprietary information, inventions conceived or
reduced to practice as a result of this Agreement, and any resulting patents
and/or copyrights, are the sole property of the developing Party. The technical
data and intellectual property contained in all deliverables, copyrighted
materials including but not limited to manuals and software, developed under
this Agreement by Xxxxxxx and provided with the Equipment as deliverables,
belong to Xxxxxxx. In the event that Xxxxxxx uses any proprietary programs in
performance of any Services, Triton PCS will not acquire proprietary rights to
such programs unless separately licensed by Xxxxxxx.
26.3 In consideration of Triton PCS Final Acceptance of the Equipment and
Services from Xxxxxxx, Xxxxxxx hereby grants to Triton PCS under patents
associated with the Equipment or parts thereof and Software which Xxxxxxx owns
or has an unconditional and absolute right to license, a limited fully paid-up,
worldwide royalty-free, non-transferable non-exclusive license ("Patent
License") to utilize Xxxxxxx' Equipment and Software in connection with Triton
PCS use of the Equipment and Software to provide wireless telecommunications
services in the area. The Patent License includes the right to use not only the
Equipment and Software hereunder, but also combinations of the Equipment and
Software with other equipment and software which are used by Triton PCS in the
provision of wireless telecommunications services in conjunction with the
Equipment. This license does not extend to Equipment or Software produced by a
manufacturer other than Xxxxxxx, which Equipment or Software performs the same
function as any Equipment or Software provided by Xxxxxxx hereunder. The Patent
Licenses includes those patents existing on the date of this Agreement and those
patents which come into existence during the Initial Term of this Agreement. The
Patent License will continue for the entire unexpired term of the last such
patent to expiration.
page 14
26.4 Both parties agree that Xxxxxxx and Triton may generate joint
inventions. In such cases of joint inventions, patent application will be
jointly prosecuted and the inventions, as well as resulting patents, if any,
will be jointly owned, and either party may utilize such inventions and/or
patents in any manner whatsoever without obligation of any kind to the other
party. Xxxxxxx will reasonably cooperate with Triton (including filing joint
applications) in obtaining any possible patents.
27.0 INFRINGEMENT
27.1 Xxxxxxx will hold Triton PCS harmless from any loss, damage or expense
(including reasonable attorney fees) resulting from infringement of U.S.
Patents, trademarks, copyrights, or any other intellectual property right in
connection with the purchase or use of Xxxxxxx delivered Equipment and/or
Software. If Triton PCS is prevented from using any Equipment or Software by
injunction or court order because of such infringement, Xxxxxxx will, at its
expense and election, either:
(i) obtain the right for Triton PCS to continue using the Equipment
or Software;
(ii) replace the Equipment or Software with a non-infringing
substitute; or
(iii) modify the Equipment or Software to make it non-infringing.
27.2 Xxxxxxx will solely control and defend or settle, at its option, any
action or suit for which it is responsible hereunder. Triton PCS must promptly
notify Xxxxxxx of any claim of infringement for which Xxxxxxx is responsible and
cooperate fully in the defense of such claim. Triton PCS will also make
available to Xxxxxxx all defenses against claims for such loss, damage or
expense known to or available to Triton PCS.
27.3 Xxxxxxx has no obligation or liability for any claim based on: use of
the Equipment or Software with equipment, devices or programs not designed by
Xxxxxxx; modification of the Equipment or Software; or Xxxxxxx' adherence to
Triton PCS instructions or directions, in which case Triton PCS will hold
Xxxxxxx harmless from any loss, damage or expense (including reasonable attorney
fees).
28.0 PRODUCT LIABILITY AND INDEMNIFICATION
28.1 In the event that Triton PCS receives a claim that the Equipment or
any part thereof has caused damage or injury to others, Triton PCS will promptly
notify Xxxxxxx in writing of all such claims. Xxxxxxx will defend or settle such
claims and will indemnify and hold Triton PCS and any officer, director,
manager, member affiliate or subsidiary thereof ("Indemnified Party") harmless
for any costs, liabilities or damages including reasonable attorney fees which
Indemnified Parties may be required to pay as the result of defective Equipment
or negligence or willful misconduct of Xxxxxxx, its agents, or its employees.
Xxxxxxx will further indemnify and hold Triton PCS harmless from and against,
any and all suits or claims for personal injury or property damage arising, or
allegedly arising from, Xxxxxxx performance or non-performance of this
Agreement.
28.2 For its part, Triton PCS agrees to defend, indemnify and hold harmless
Xxxxxxx, its officers, directors, employees and subcontractors from and against
any costs, liabilities or damages (including reasonable attorney's fees) arising
from suits and claims relating to defects the system into which Xxxxxxx'
Equipment and or Software is being integrated into or integrated and for
personal injury and property damage caused by Triton PCS and/or their employees
and agents.
29.0 INSURANCE
29.1 During the Initial Term and any Renewal Term of this Agreement,
Xxxxxxx must obtain and maintain at Xxxxxxx' expense, with financially reputable
insurers licensed to conduct business in all jurisdictions where work is
performed and that are reasonably acceptable to Triton PCS, not less than the
following insurance written on an "occurrence basis":
page 15
(a) Workers' compensation as required under any workers'
compensation or similar law in the jurisdiction where work is
performed, with an Employer's Liability limit of not less than
$1,000,000 per accident;
(b) Commercial General Liability, including coverage for
Contractual Liability and Products/Completed Operations
Liability, with a primary limit of not less than $1,000,000
combined single limit per occurrence for bodily injury, personal
injury and property damage liability, together with umbrella or
excess coverage not less than $5,000,000 naming Triton PCS as an
additional insured.
(c) Business Auto insurance covering ownership, maintenance or
use of any owned, non-owned or hired automobile with a limit of
not less than $1,000,000 combined single limit per accident for
bodily injury, including death and property damage liability,
naming Triton PCS as an additional insured;
(d) "All Risk" Property insurance covering not less than the full
replacement cost of Xxxxxxx', if any, personal property while on
Triton PCS premises. Xxxxxxx will ensure that subcontractors
performing work on Triton PCS premises, if any, also have
adequate "All Risk" property insurance.
29.2 Xxxxxxx must, as a material condition of this Agreement, prior to
commencement of any work and prior to any renewal of insurance, deliver to
Triton PCS a certificate of insurance satisfactory in form and content to Triton
PCS, evidencing that the above insurance, is in force and will not be canceled
or materially altered without first giving Triton PCS thirty (30) days prior
written notice.
30.0 INDEPENDENT CONTRACTOR
30.1 Xxxxxxx, its subcontractors, employees or agents are independent
contractors for all purposes and at all times. Xxxxxxx has the responsibility
for, and control over, the means and details of providing the Equipment,
Software and performing the Services, subject to Triton PCS inspection. Xxxxxxx
will provide all training, hiring, supervising, hours of work, work policies and
procedures, work rules, compensation, payment for expenses and discipline and
termination of its employees.
30.2 Xxxxxxx must comply with laws, regulations and orders relating to
equal employment opportunity, workers' compensation, unemployment compensation
and FICA. Upon request, Xxxxxxx will furnish Triton PCS with Xxxxxxx' EEO
policies and procedures, verification of unemployment compensation, FICA and the
number of hours any individual performs Services for Triton PCS within any
twelve (12) consecutive month period.
30.3 Triton PCS will incur no responsibility or obligation to
employees, agents, subcontractors or other parties utilized by Xxxxxxx to
perform this Agreement. Such person or Parties will, at all times, remain
employees, agents or subcontractors (whichever is applicable) of Xxxxxxx.
30.4 Xxxxxxx is solely responsible for payment of wages, salaries,
fringe benefits and other compensation of, or claimed by, Xxxxxxx' employees
including, without limitations, contributions to any employee benefit, medical
or savings plan and is responsible for all payroll taxes including, without
limitation, the withholding and payment of all federal, state and local income
taxes, FICA, unemployment taxes and all other payroll taxes. with respect to
maintenance of workers' compensation coverage on Xxxxxxx' employees.
30.5 Xxxxxxx will ensure that its employees, agents and subcontractors
to comply with the terms and conditions of this Agreement.
30.6 Xxxxxxx is prohibited from carrying firearms, explosives or
ammunition onto Triton PCS premises or using or carrying weapons while
performing work on Triton PCS behalf or attending Triton PCS sponsored
activities. Xxxxxxx further agrees to comply with any postings or notices
located at Triton PCS premises regarding safety, security or weapons.
31.0 WORK ON EACH OTHER'S PREMISES
page 16
31.1 If one Party's performance under this Agreement involves
performance on Triton PCS premises, the visiting Party must take necessary
precautions to prevent injury to persons or property during the work and adhere
to security procedures of the other Party.
32.0 CUSTOMER RESPONSIBILITIES: Triton shall be responsible for the
following:
. Provide access to Triton PCS tower and equipment sites in support of
initial testing, operation and optimization
. Provide primary and back up power with specified connections
. Provide PCS antennas and cables that meet the Specification
. Provide and install tower top low noise amplifiers as specified by Xxxxxxx
. Concrete pads configured for 4 and 6 CMR systems
. Installation and operation of all equipment (Xxxxxxx has priced
installation support)
. Antenna location, installation and alignment on towers to specified
parameters
33.0 SECURITY
33.1 Security access rights to Triton PCS premises will be designated
by Triton PCS. Xxxxxxx will abide by all procedures and policies applicable to
Triton PCS premises access rights and ensure compliance by its employees, agents
and subcontractors.
33.2 Software security will be followed by Xxxxxxx and Triton PCS for
any application used by the other Party. Triton PCS will designate the required
Triton PCS software access to Xxxxxxx' employees and will make the request to
Xxxxxxx for Xxxxxxx software access for Triton PCS employees.
33.3 Each Party will be responsible for any loss of the other Party's
property arising out of or relating to the negligent act or omission of the
first Party. Each will reimburse the other for any loss of property at
replacement cost.
34.0 FEDERAL REQUIREMENTS
34.1 If Triton PCS or the federal government determines that an Order
placed under this Agreement supports specific requirements included in a Triton
PCS contract or subcontract with the federal government, Xxxxxxx will be subject
to certain federal acquisitions regulations ("FARs") contained in Triton PCS
contract or subcontract. Xxxxxxx will be subject only to FARs that must be
included in all subcontracts as a matter of law for purchase of "Commercial
Items" as the term is defined in FAR. Triton PCS acknowledges that Xxxxxxx
Equipment and Software are "Commercial Items" within the definition of FAR 2.101
and FAR Part 12. The applicable Government contract number will be referenced on
the affected Order.
34.2 Should Triton PCS become subject to federal government reporting
requirements as a prime contractor or subcontractor under this Agreement,
Xxxxxxx agrees to make an accounting, upon request, of dollars that are
subcontracted to firms that are Small Businesses, Small Disadvantaged
Businesses, or Women-Owned Businesses under Small Business Administration
regulations. These dollars will be reported in writing to Triton PCS.
page 17
35.0 NOTICES
Communications relating to this Agreement must refer to this Agreement,
identifying the Scope of Work and the applicable Order number, and shall be sent
either by certified mail, return receipt requested; telex; confirmed facsimile;
or overnight mail to the following points of contact:
Triton PCS: Triton PCS Operating Company L.L.C.
000 Xxxxxxxxxx Xx
Xxxxxxx, XX 00000
Attn.: Xx. Xxxxxxx Xxxxxxxxx
Phone No: (000) 000 0000
Fax No: (000) 000 0000
Xxxxxxx: Xxxxxxx, A Lockheed Xxxxxx Company
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn.: Xx. Xxxxx X. Xxxx
Phone No.: (000) 000 0000
Fax No.: (000) 000 0000
Either Party may change its point of contact by written notice to the other
Party.
36.0 GENERAL
36.1 Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to any conflict of laws provision.
36.2 Waiver. The waiver of a breach of any term of this Agreement will
not constitute the waiver of any other breach of the same or any other term.
36.3 Severability. If certain provisions of this Agreement are held to
be unenforceable, the remaining provisions will remain in effect, to be
construed as if the unenforceable provisions were originally deleted.
36.4 Survival. Provisions intended by their content to survive the
performance, termination or cancellation of any Order, will also survive the
termination or Renewal Term of this Agreement
36.5 Publicity. Triton PCS agrees to allow Xxxxxxx to view Xxxxxxx'
Equipment and Software in their installed/working configuration in the deployed
sites. Xxxxxxx shall provide advance notification of such viewing and shall not
inconvenience Triton PCS staff. Both parties shall work together to coordinate a
mutually acceptable date and time. Triton PCS will in no way restrict Xxxxxxx'
advertisement or marketing of Xxxxxxx' products in network(s). Xxxxxxx shall not
use Triton PCS name in advertisements or promotions without Triton PCS
permission.
36.6 Remedies. All remedies available to either Party under this
Agreement are cumulative and may be exercised concurrently or separately. The
exercise of one remedy shall not be construed as election of a sole remedy to
the exclusion of other remedies.
37.0 LIMITATION OF LIABILITY
Notwithstanding anything to the contrary contained herein, neither Party shall
be liable to the other for any indirect, special, punitive, exemplary,
incidental or consequential damages, whether foreseeable or not, relating to or
arising out of this Agreement. In no event shall direct damages exceed the value
of the contract.
page 18
38.0 DISPUTE RESOLUTION
38.1 General. Should a dispute arise under the Agreement which cannot
-------
be resolved informally between the Parties the dispute will be settled as set
forth in this Section 37 without litigation, and either Party may request that
such dispute be submitted to arbitration in accordance with this Section 37 for
resolution. The provisions of this Agreement shall apply and control where any
dispute may arise under this Agreement. Except for a dispute concerning
compliance in the case of a suit to compel compliance with this dispute
resolution procedure, the Parties agree to use this dispute resolution procedure
as the sole and exclusive means of resolving any controversy or claim arising
out of or related to this Agreement or its breach except that either Party may
seek injunctive relief to protect against the misappropriation or wrongful
conversion of its technology.
38.2 Escalation. If the Parties shall have any dispute with respect to
----------
the terms and conditions of this Agreement, or any subject matter referred to in
or governed by this Agreement, then a Party may notify the others in writing
that it desires to elevate the dispute or claim to the Vice President of Network
for Triton PCS and the General Manager of Telecommunications for Xxxxxxx, for
resolution. Upon receipt by the other Parties of such written notice, the
dispute or claim shall be so elevated and two executives referenced herein shall
negotiate in good faith and each use its reasonable best efforts to resolve such
dispute or claim within thirty (30) days after receipt. The location, format
frequency and conclusion of these elevated discussions shall be left to the
discretion of the representatives involved. Upon agreement, the representatives
may utilize other alternative dispute resolution procedures to assist in the
negotiations. Discussion and correspondence among the representatives
specifically for purposes of these negotiations shall be treated as confidential
information developed for purposes of settlement, exempt from discovery and
production, which shall not be admissible in the arbitration described in
Section 37.3. Documents identified in or provided with such communications,
which are not expressly prepared for purposes of the negotiations, are not so
exempted and may, if otherwise admissible, be admitted in evidence in such
arbitration.
38.3 Dispute Resolution.
------------------
38.3.1 Request for Arbitration. In the event that a
-----------------------
claim, controversy or dispute between Parties to be resolved in
accordance with this Section 37 under Section 37.2 above is not
resolved by use of the claims procedures described in Section 37.2,
either Party may, within thirty (30) days after the two executives
referenced in Section 37.2 have met to address the claim, controversy
or dispute, request arbitration of the issue.
38.3.2 Notice. A Party may request arbitration by
------
giving the other Parties written notice to such effect, which notice
shall describe, in reasonable detail, the nature of the dispute,
controversy or claim and the requested relief demanded. The arbitration
shall be governed by the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), as amended by this Agreement.
38.3.3 Panel of Arbitrators. The Parties shall select
--------------------
a panel of arbitrators as follows: Triton PCS shall select one
independent arbitrator shall within fifteen (15) days of the notice
required in Section 37.3.2, one independent arbitrator shall be
selected by Xxxxxxx within the same period of time, and those
arbitrators shall select a third independent arbitrator within fifteen
(15) days from the date both are selected.
38.3.4 Procedure. Upon either Party's request for
---------
arbitration, within thirty (30) days following delivery of the notice
referenced in Section 37.3.2 above, arbitrators shall be selected as
required by Section 37.3.3 above to hear the dispute in accordance with
AAA rules. For the three (3) arbitrator panel, the decision of a
majority shall control. The arbitration shall be held in a location
mutually acceptable to the Parties or at a neutral venue if the Parties
do not reach agreement on location.
38.3.5 Costs and Authority. The costs of arbitration,
-------------------
including the fees and expenses of the arbitrators, shall by shared
equally by the Parties unless the arbitration award
page 19
provides otherwise. Each Party shall bear the cost of preparing and
presenting its case. The Parties agree that this provision and the
arbitrators' authority to grant relief shall be subject to the United
States Arbitration Act, 9 U.S.C. 1-016 et seq. ("USAA"), the provisions
of this Agreement, and the ABA-AAA Code of Ethics for Arbitrators in
Commercial Disputes. The Parties agree that the arbitrators shall have
no power or authority to make awards or issue orders of any kind except
as expressly permitted by this Agreement, and in no event shall the
arbitrators have the authority to make any award that provides for
punitive or exemplary damages. The arbitrators' decision shall follow
the plain meaning of the relevant documents, and shall be final and
binding. The award may be confirmed and enforced in any court of
competent jurisdiction. All post-award proceedings shall be governed by
the USAA.
39.0 NON PROSELYTIZATION
Xxxxxxx Telecommunications Systems business unit and Triton PCS
recognize that their respective employees are a valuable asset and instrumental
to the proper and timely performance of Orders issued under this Agreement. Both
Parties agree not to solicit, proselytize, nor recruit the employees from the
other's business unit involved in this Agreement for the Initial Term of the
Agreement. This restriction shall not prevent either Party from general
advertising and recruitment campaigns nor shall it restrict any employee of
either Party from applying for a position with the other Party.
40.0 EXCUSABLE DELAY
The following shall constitute reasons for excusing Xxxxxxx' delay with
a limitation of sixty (60) days in supplying Equipment and Software in
accordance with previously agreed to delivery dates; acts of God, fire, flood,
unexpected obsolescence of a critical component, bankruptcy of a critical
component vendor, untimely access to Triton PCS Network and premises, delays
caused by Triton PCS which are not within Xxxxxxx' control, or delays caused by
any of the specified schedule interdependencies specified in Exhibit E. If any
delay exceeds 60 days, the parties shall confer to negotiate an equitable
adjustment to the Order(s) affected by the delay.
41.0 EXHIBITS.
41.1 The following exhibits are attached to and incorporated by this
Agreement:
Exhibit A Equipment, Software and Services Prices and Discounts.
Exhibit B Xxxxxxx' Warranty and Maintenance Period Provisions
Exhibit C Xxxxxxx' Return Policy and Procedure
Exhibit D Specifications
Exhibit E Schedule Interdependencies
Exhibit F Xxxxxxx Software Maintenance and Support Services Pricing
Exhibit G1 RF Performance Acceptance Test Procedure (Demonstration)
Exhibit G2 TDMA Repeater Factory Acceptance Test Procedure
(Production Unit)*
* Deliverable to Triton 30 days prior to first unit delivery.
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42.0 ENTIRE AGREEMENT
This Agreement, together with the Exhibits identified in Section 41.1,
constitutes the entire agreement between the Parties with respect to the subject
matter contained herein and may not be revised nor modified without a specific
written amendment, signed by both Parties.
Triton PCS Operating Company L.L.C LOCKHEED XXXXXX CORPORATION
/s/ Xxxxx Xxxxx Xxxxxxx, A Lockheed Xxxxxx Corporation
By: Triton Management Company, Inc, By: /s/ Xxxxx X. Xxxx
its Manager ----------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx X. Xxxx
--------------------------------- --------------------------------
Title: Executive Vice President & CTO Title: Contracts Manager
-------------------------------- -------------------------------
Date: 6/8/99 Date: 6/8/99
-------------------------------- --------------------------------
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