EXHIBIT 10.47
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FORM OF
MASTER PURCHASE AND LICENSING AGREEMENT
DATED XXXXXXXXXXX
BETWEEN XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
AND
CORSAIR COMMUNICATIONS, INC.
This Agreement (this "Agreement") is dated as of this ___ day of
______________ between
______________________________________________________________, having an office
at ______________________________________________________ ("Customer"), and
Corsair Communications, Inc., a Delaware corporation, having an office at 0000
Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000.
PRELIMINARY STATEMENT
A. Corsair currently manufactures and markets the PhonePrint(TM) Network
Access Control System (the "System"), as defined in Schedule 1, attached hereto,
which incorporates hardware and software proprietary to Corsair and certain
third parties set forth in Schedule 5, attached hereto.
B. Customer desires to acquire the System to mitigate cellular phone
fraud in its _______ Market (as defined below).
C. Corsair is committed to developing and delivering enhancements and
improvements to the System.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, and intending to be legally bound hereby, Customer and
Corsair hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms as used in this Agreement shall have the meanings as
defined in this Article with respect to each such term.
1.1 Affiliate. A person, association, partnership, corporation or joint-
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stock company, trust or other business entity however organized ("Entity") is an
affiliate of that person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such Entity. Control shall be defined as
(i) ownership of a majority of the voting power of all classes of voting stock
or (ii) ownership of a majority of the beneficial interests in income and
capital of an entity other than a corporation.
1.2 Cell Site Equipment. "Cell Site Equipment" shall mean network
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interfaces jointly selected by Corsair and Customer which shall be V.35
Interfaces, RS-232 Interfaces or Ethernet Interfaces.
1.3 Centralized Routers. "Centralized Routers" shall mean all routers
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required to consolidate cell site traffic from RFU(s) for transport to SCC(s).
1.4 Credit Amount. "Credit Amount" shall mean an amount equal to the sum
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of all Installation Credits, which amount shall, at Customer's election, be
credited against Customer's purchase of any RFUs, SCCs, or any other products or
services that Corsair provides pursuant to this Agreement, and which amount is
not and shall not become due and payable to Corsair.
1.5 Customer Interface Server. "Customer Interface Server" shall mean the
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hardware platform that hosts the Customer interface software, containing the
hardware specifications set forth by Corsair on or prior to May 31, 1996.
1.6 Installation Credit. "Installation Credit" shall mean with respect to
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each RFU included in the Initial Order, the product of (i) $10 and (ii) the
number of days following _____________ that Corsair completes its pre-site and
installation responsibilities set forth in the Delivery Schedule and the site
commissioning process set forth in Schedule 6 with respect to such RFU.
1.7 Delivery Date. "Delivery Date" shall mean with respect to each RFU,
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the date Corsair first provides such RFU to a common carrier responsible for
delivery of such RFU to Customer.
1.8 Delivery Schedule. "Delivery Schedule" shall mean the Pre-Site and
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Installation Responsibilities Timetable attached hereto as Schedule 2.
1.9 Description. "Description" shall mean the description of the
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operation of the System set forth on Schedule 1.
1.10 Effective Date. "Effective Date" shall mean ______________.
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1.11 Fingerprint Data. "Fingerprint Data" means the signal data processed
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by the System that results in specific parameters which the System uses to
describe a radio telephone.
1.12 Licensed Software. "Licensed Software" shall mean the software set
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forth on Schedule 5 of this Agreement.
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1.13 Market. "Market" shall mean, (i) for each of the areas within the
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United States identified as a "Market" in the attached Schedule 12 and (ii) for
each additional area within the United States that Corsair and Customer may,
from time to time, agree in writing to add to attached Schedule __, the
aggregate of all MSAs and RSAs specified in the attached Schedule __ for such
Market.
1.14 _____________ Market. "_______________ Market" shall mean the Market
for which Customer is entitled to purchase Corsair's Products and services
pursuant to this Agreement.
1.15 Market Purchase Agreement. "Market Purchase Agreement" shall mean a
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Master Purchase and Licensing Agreement in substantially the form of this
Agreement between Corsair and Customer or any Affiliate with respect to a
specific Market set forth on Schedule 12.
1.16 MSA. "MSA" shall mean metropolitan statistical area (as such term is
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defined by the United States Federal Communications Commission).
1.17 New Feature Release. "New Feature Release" shall mean the portion of
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a New Software Release which when installed in the System provides features or
functionality not made available by Corsair prior to the date of such release.
1.18 New Software Release. "New Software Release" shall mean any software
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made generally available by Corsair to its Customers following the Effective
Date which when working together with Corsair RFUs and the SCC is designed to
cause the System to operate in accordance with the Description.
1.19 Performance Goals. "Performance Goals" shall mean the goals with
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respect to overall System performance identified on Schedule 1 as "Performance
Goals".
1.20 Performance Release. "Performance Release" shall mean the portion of
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a New Software Release which is designed to improve the performance of existing
features of the System.
1.21 Phase I GUI. "Phase I GUI" shall have the meaning set forth in
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Schedule 9.
1.22 RFU. "RFU" shall mean a radio frequency unit designed to be
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compatible with a __________ switch, as described in Schedule 1, containing the
hardware set forth on Schedule 3.
1.25 Roaming Market. "Roaming Market" shall mean each MSA and RSA in which
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any RFUs have been installed.
1.26 Roaming Services. "Roaming Services" shall mean the then current
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services offered by Corsair to its customers in order to establish, maintain and
administer
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the System's roaming functionality between Corsair customers that subscribe for
such services.
1.27 RSA. "RSA" shall mean rural service area (as such term is defined by
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the United States Federal Communications Commission).
1.28 SCC. "SCC" shall mean a system control center, as described in
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Schedule 1, containing the hardware set forth on Schedule 4.
1.29 Support Agreement. "Support Agreement" means the Comprehensive
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Service and Support Agreement attached hereto as Schedule 7.
ARTICLE II
ORDERS; PAYMENT TERMS
2.1 Initial Order. Customer hereby agrees to acquire and Corsair agrees
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to provide to Customer for use in Customer's __________ Market, for the amounts
described and on the terms set forth in Section 2.3 below, the System, which
shall initially include ____________ (__) RFUs, an SCC, a Customer Interface
Server and a license to use the Licensed Software in accordance with the terms
of Article VI of this Agreement (the "Initial Order").
2.2 Supplemental Orders. Customer may, at any time during the term of
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this Agreement, place orders with Corsair for additional RFUs and for any other
hardware, software, maintenance, consultant, and training services which Corsair
generally makes available to its customers ("Supplemental Orders") for use in
Customer's _________ Market. Customer shall pay to Corsair the amounts set
forth in Section 2.3, in accordance with the payment terms set forth therein,
for such products and services; provided however, that if the prices for such
products and services are not referenced in Section 2.3 or elsewhere in this
Agreement then Customer shall pay to Corsair, on the payment terms generally
made available by Corsair to its customers for such products and services,
Corsair's then current rates, charges or fees, subject to discounts, where
applicable, for the products and services ordered. All Supplemental Orders
shall be governed exclusively by the terms of this Agreement.
2.3 Terms of Payment on Supplemental Orders. In consideration of the
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performance by Corsair of its obligations under this Agreement, and subject to
the terms and conditions of this Agreement, Customer agrees to pay to Corsair
the following amounts with respect to the Initial Order and each Supplemental
Order:
(a) In consideration of each RFU, Customer shall pay a purchase price
of $20,000 (provided, however, that for so long as Customer or its Affiliates
maintain Market Purchase Agreements covering at least two (2) separate Markets,
and have purchased a combined total of at least one hundred and fifty (150) RFUs
from Corsair
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pursuant to such Market Purchase Agreements, the price of each additional RFU
shall be reduced to $17,500), payable as follows: one hundred percent (100%)
invoiced upon the Delivery Date of such RFU. All invoices shall be due and
payable net thirty (30) days.
(b) In consideration of each SCC, Customer shall pay a purchase price
of not to exceed $77,500, with the exact price determined based upon the number
of RFUs the SCC is designed to support, payable as follows: one hundred percent
(100%) invoiced following the completion by Corsair of the commissioning process
set forth in Schedule 10 attached hereto. All invoices shall be due and payable
net thirty (30) days.
(c) In consideration of each Customer Interface Server, Customer
shall pay a purchase price of $15,000 as follows: one hundred percent (100%)
invoiced upon the Delivery Date of such Customer Interface Server.
(d) In consideration of the services to be provided by Corsair
pursuant to the terms of Article VII of this Agreement, on the Effective Date
and on each anniversary of the Effective Date during the term of this Agreement
(collectively, the "Payment Dates"), Customer shall pay to Corsair, upon receipt
of an invoice from Corsair, the product of (i) $1250 and (ii) the aggregate
number of RFUs that shall have been purchased pursuant to Sections 2.1 and 2.2
of this Agreement on or prior to such Payment Date. In addition, in respect of
each RFU purchased pursuant to Sections 2.1 and 2.2 of this Agreement other than
on a Payment Date, on the Delivery Date with respect to such RFU, Customer shall
pay to Corsair, upon receipt of an invoice from Corsair, the product of (i)
$1250 and (ii) the number of days prior to the next Payment Date divided by
(iii) three hundred and sixty-five (365). All invoices shall be due and payable
net thirty (30) days.
(e) In consideration of the license granted by Corsair to Customer in
Section 6.3 of this Agreement, on each Payment Date Customer shall be obligated
to pay to Corsair, upon the receipt of an invoice from Corsair, the sum of (i)
the product of (A) $2500 and (B) the aggregate number of RFUs that have been
purchased pursuant to Sections 2.1 and 2.2 of this Agreement on or within the
two (2) year period immediately preceding the applicable Payment Date and (ii)
the product of (A) $1750 and (B) the aggregate number of RFUs that have been
purchased pursuant to Sections 2.1 and 2.2 of this Agreement more than two (2)
years preceding the applicable Payment Date. In addition, in respect of each RFU
purchased pursuant to Sections 2.1 and 2.2 of this Agreement other than on a
Payment Date, Customer shall be obligated to pay to Corsair on the Delivery Date
with respect to such RFU, upon receipt of an invoice from Corsair, the product
of (i) $2500 and (ii) the number of days prior to the next Payment Date divided
by (iii) three hundred and sixty-five (365). All invoices shall be payable net
thirty (30) days. Notwithstanding the foregoing, in no event shall the license
fees payable to Corsair pursuant to this Section 2.3(e) exceed $400,000 per
annum during any year of this Agreement.
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2.4 Covenants of Customer. Customer covenants to Corsair as follows:
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(a) Customer covenants (i) not to act as a distributor of any RFUs
and SCCs obtained from Corsair pursuant to this Agreement and (ii) to use the
SCCs and RFUs obtained from Corsair solely in its ____________ Market.
Notwithstanding anything else set forth herein: (A) Customer, upon providing
notice to Corsair, at its sole cost and expense, may move any RFUs and SCCs
obtained from Corsair pursuant to this Agreement to any other Market with
respect to which Customer or any Affiliate has entered into a Market Purchase
Agreement with Corsair, provided that all terms and conditions set forth in this
Agreement (except with regard to Corsair's commitment pursuant to the Support
Agreement which shall be governed by the Market Purchase Agreement applicable to
the Market to which any equipment is moved) shall continue to apply to such RFUs
and SCCs and Customer agrees to continue to pay to Corsair with respect to such
RFUs and SCCs, the amounts set forth under Article II of this Agreement with
respect to such RFUs and SCCs; and (B) nothing set forth in this Agreement shall
be interpreted to restrict Customers ability to resell any RFUs and SCCs
purchased from Corsair to any third party; provided, however, that Customer may
only sell RFU(s) and SCC(s) to third parties that Corsair has approved in
writing, which approval may be withheld in Corsair's sole discretion, and that
have entered into a nondisclosure agreement with Corsair. The obligations of
Corsair set forth in Article VII, to the extent then in effect, shall terminate
with respect to each RFU and SCC immediately prior to the sale by Customer of
such RFU and SCC. Corsair agrees to offer its maintenance and support services,
on terms no more onerous then Corsair provides such services to similarly
situated customers, to any third party whose purchase of Customer's RFUs and
SCCs has been approved by Corsair in writing.
(c) Customer shall cooperate with Corsair in assembling its
subscriber information, consisting of contact numbers and frequently dialed
digits. Corsair will provide assistance to Customer in determining appropriate
subscriber information for proper validation.
2.5 Covenants of Corsair. Corsair covenants to Customer that upon the
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expiration or other termination of this Agreement, Customer shall be entitled to
a perpetual license to the Licensed Software provided that Customer remits to
Corsair within thirty (30) days following such expiration or termination a
license fee equal to $13,750 per RFU less any amounts previously paid to Corsair
under this Agreement with respect to such RFU. If Customer elects to buy a
perpetual license as to some, but not all, of the Licensed Software, it shall
notify Corsair within the thirty (30) day period of the number of and
designation of those RFUs for which it is acquiring the license. The perpetual
license shall be subject to substantially similar terms and conditions as govern
the ownership, use and transfer of the Licensed Software under this Agreement.
If Customer fails to remit the license fee to Corsair within thirty (30) days,
it shall not be automatically entitled to a perpetual license.
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2.6 Price Protection. If the prices, rates, charges or fees for RFUs,
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SCCs and Licensed Software that Corsair provides to any customer, as adjusted to
reflect equivalent volume purchases, and like versions, models and components
are less than the prices, rates, charges or fees for such items set forth in
Section 2.3 above, Customer shall have the benefit of the lesser price with
respect to all orders of RFUs and SCCs placed at or after the date that the
lesser price is made available to the other customer and to all payments of fees
in respect of the Licensed Software made on or after the date that the lesser
price is made available to the other customer. If at any time the prices,
rates, charges or fees for the System support and maintenance that Corsair
provides to any other customer are less than the prices, rates, charges or fees
for similar services in a market of similar size and configuration for System
support and maintenance set forth in this Agreement, Customer shall have the
benefit of the lesser price with respect to all payments of fees in respect of
System support and maintenance made on or after the date that the lesser price
is made available to the other customer.
ARTICLE III
PACKAGING
All Systems shall be shipped in standard commercial packaging unless
otherwise requested by Customer. The cost of any special packaging shall be the
responsibility of Customer.
ARTICLE IV
RFU HARDWARE
4.1 Delivery of RFU Hardware. Corsair will use its best efforts to cause
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RFUs to be delivered at Corsair's facilities to a common carrier responsible for
the delivery of such RFUs to Customer at the designated Customer warehouse
facility, in accordance with the Delivery Schedule. Within five (5) working
days after notification by Corsair of expected ship dates, Customer will provide
Corsair a designated Customer warehouse facility where RFUs are to be shipped.
4.2 Delays in Delivery. The Delivery Schedule reflects Corsair's estimate
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of the time required to deliver and install RFUs, and is made in accordance with
Customer's desires. Each party's ability to comply with the estimated completion
dates set forth in the Delivery Schedule is subject to the other party's having
completed their responsibilities in a timely manner. Corsair and Customer each
agree to use its best efforts to complete their various responsibilities as set
forth on the Delivery Schedule in a timely manner, barring delays which the
parties could not reasonably foresee at the time of establishment of the
Delivery Schedule. Neither party assumes any liability for damages,
consequential or otherwise, resulting from failure to meet the Delivery
Schedule.
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4.3 Risk of Loss and Title. Corsair shall pay all costs of shipping RFUs
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and shall obtain and maintain, at its sole expense, cargo and riggers insurance
to cover the value of RFU's being shipped to Customer. Risk of loss with
respect to each RFU to be delivered to Customer under the terms of this
Agreement shall pass from Corsair to Customer upon delivery of such RFU at
Customer's designated warehouse facility. Thereafter, Corsair will not be
responsible for any loss or damage to the RFU unless caused by the negligent or
willful acts or omissions of Corsair agents, representatives or employees.
Title to each RFU will pass from Corsair to Customer upon the later to occur of
the (i) Performance Payment Date or (ii) Delivery Date. In the event that a
shipment of RFUs is damaged or lost, Corsair will use its best efforts to
schedule the prompt delivery of replacement units.
4.4 RFU Limited Warranty. Corsair warrants that each RFU will, upon
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delivery and for a period of two (2) years following installation, be free from
defects in material or workmanship and, when utilized in conjunction with the
SCC and the Licensed Software, will operate substantially in accordance with the
Description. Customer shall notify Corsair of any defect, and Corsair shall
determine whether it will repair the RFU at Customer's premises, or require
return of the RFU to a location specified by Corsair at Corsair's expense. THE
FOREGOING WARRANTY IS THE ONLY WARRANTY CORSAIR HAS GIVEN CUSTOMER WITH RESPECT
TO EACH RFU AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. This warranty is contingent upon Customer's
proper use of the RFU and does not cover any RFU that has been altered, modified
or disassembled by Customer or any person other than Corsair and Corsair's
employees, representatives and agents, or which has been subjected to unusual
physical or electrical stress or from which the original identification marks
have been removed or altered. This warranty is nontransferable, except upon an
assignment of the entire Agreement in accordance with the provisions of Section
12.5.
4.5 RFU Warranty Response Time. Corsair will either repair or replace any
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defective RFU covered by the warranty in Section 4.4 above within five calendar
days of the date that Customer notifies Corsair of a defect, unless the defect
falls within the description of a "Category Level 1" or "Category Level 2"
problem as defined in Schedule 7, in which case the defect shall be corrected
within the time frames associated with those categories of problems. If Corsair
fails to correct a defective RFU covered by warranty within the applicable time
frame, it shall either remit to Customer, or increase Customer's Credit Amount
by, the sum of $100 per day for each day beyond the applicable time frame that
the defect remains uncorrected.
ARTICLE V
SYSTEM CONTROL CENTER
5.1 Operation of SCC. The SCC(s) shall reside at Corsair's facilities and
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Corsair shall operate and monitor the SCC(s), free of charge (including fees to
conduct
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roaming services) until the date Corsair first makes the SCC available for
delivery to Customer, and thereafter Corsair shall operate the SCC(s) at
Corsair's then current rate for such services, which is currently $65,000 per
annum per SCC (excluding fees to conduct Roaming Services), until the SCC(s) are
moved to Customer's facility. Corsair shall generate daily summary reports,
daily termination reports and weekly, monthly and quarterly summary reports and
system utilization reports, all of which reports shall be provided
electronically to Customer for so long as the SCC(s) are located at Corsair's
facilities. In addition, upon receiving seven (7) days prior written notice from
Customer, assuming the SCC(s) are located at Corsair's facilities, Corsair shall
generate additional reports as reasonably requested by Customer. During the term
of this Agreement, for so long as Customer is willing to utilize a frame relay
provider selected by Corsair, Customer may subscribe for Corsair's Roaming
Services for $______ per month. Notwithstanding the foregoing, it shall be the
sole responsibility of Customer, and not Corsair, to establish agreements with
other subscribers to Corsair's Roaming Services with respect to establishing and
maintaining the System's roaming functionality, and Corsair has not made any
representation or warranty to Customer, whether express or implied, with regard
to any of its customers willingness to participate in roaming relationships.
5.2 Delivery of SCC. Prior to the expiration of this Agreement, or if
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terminated earlier (except pursuant to Section 11.4 hereof), within one hundred
and twenty (120) days after such termination, Corsair shall, upon receipt of
Customer's written request (which request shall not be provided prior to
November 30, 1996), cause the SCC(s) to be moved to and installed in a facility
designated by Customer. Within thirty (30) days after sending a request to
Corsair with regard to moving the SCC(s) to Customer's facilities, Customer
shall provide Corsair a designated Customer facility where the SCC(s) are to be
shipped and installed. Corsair will use back up SCC(s) during the period of
time Customer's SCC(s) are being physically moved to Customer's facility and
will use commercially reasonable efforts to minimize the time during which the
performance of the System will be impacted by the move contemplated in this
Section 5.2.
5.3 Risk of Loss and Title. Corsair shall pay all costs of shipping each
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SCC and shall maintain, at its sole expense, cargo and riggers insurance to
cover the value of each SCC being shipped to Customer. Risk of loss with respect
to the delivery of each SCC to a designated Customer facility shall pass from
Corsair to Customer upon delivery of the SCC to Customer at the designated
Customer facility. Thereafter, Corsair will not be responsible for any loss or
damage to the SCC unless caused solely by the negligent or willful acts or
omissions of Corsair agents, representatives or employees. Title to each SCC
shall pass from Corsair to Customer on the later to occur of (i) the Performance
Payment Date or (ii) the completion by Corsair of the commissioning process set
forth in Schedule 10 attached hereto, provided however, that Corsair shall bear
all risk of loss with respect to the SCC during the time that the SCC is
operated by Corsair at Corsair's facilities.
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5.4 Subsequent Operation of SCC. After delivery of the SCC(s) to a
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designated Customer facility and the completion of the installation of the
SCC(s) at such facility, Customer shall have the sole responsibility for
operating and monitoring the SCC(s); provided, however, Corsair, at its sole
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expense, shall be entitled to remotely access Customer's SCC and RFU databases.
The delivery of the SCC(s) to Customer shall not affect any obligation of
Corsair set forth elsewhere in this Agreement to maintain or support the SCC(s).
5.5 SCC Limited Warranty. Corsair warrants that the SCC will, for a
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period of two (2) years following the installation of the first RFU pursuant to
this Agreement, be free from defects in materials or workmanship and, when
utilized in conjunction with the RFUs and the Licensed Software, will operate
substantially in accordance with the Description. In the event of a defect,
Corsair shall determine whether it will repair or replace the SCC at Customer's
premises, or if necessary to effect said repairs require return of the SCC to a
location specified by Corsair at Corsair's expense. THE FOREGOING WARRANTY IS
THE ONLY WARRANTY CORSAIR HAS GIVEN CUSTOMER WITH RESPECT TO THE SCC AND IS IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
This warranty is contingent upon Customer's proper use of the SCC and does not
cover the SCC if it has been altered, modified or disassembled by Customer or
any person other than Corsair and Corsair's employees, representatives and
agents, or if it has been subjected by Customer to physical or electrical
stress. This warranty is nontransferable, except upon an assignment of the
entire Agreement in accordance with the provisions of Section 12.5.
5.5.1 SCC Warranty Response Time. Corsair will either repair or replace
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any defective SCC covered by the warranty in Section 5.5 above within five
calendar days of the date that Customer notifies Corsair of a defect, unless the
defect falls within the description of a "Category Level 1" or "Category Level
2" problem as defined in Schedule 7, in which case the defect shall be corrected
within the time frames associated with those categories of problems. If Corsair
fails to correct a defective SCC covered by warranty within the applicable time
frame, it shall either remit to Customer, or increase Customer's Credit Amount
by, the sum of $100 per day for each day beyond the applicable time frame that
the defect remains uncorrected.
5.6 Communications. Corsair shall be responsible, at its sole cost and
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expense for providing all Cell Site Equipment with respect to each RFU for which
Customer has paid to Corsair a purchase price of $20,000. With respect to each
RFU for which Customer has paid $17,500 or less, Customer shall pay Corsair for
all Cell Site Equipment (not to exceed a maximum of $750) per cell site).
Customer shall be responsible, at its sole cost and expense, for providing all
(i) Centralized Routers and (ii) frame relay capacity (except that for any
period of time Customer is paying the amounts set forth in Section 5.1 for
Roaming Services, all frame relay charges shall be provided as part of the
charge for such service) necessary for establishing and maintaining
communication between SCCs and RFUs. Customer, likewise, shall be responsible,
at
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Customer's sole expense, for all other communications charges, including,
without limitation, (i) causing the communication from the RFUs to any routers
physically located in its market to be accomplished using a TCP/IP connection
and (ii) all costs incurred in conducting fingerprint exchanges between Customer
and its roaming partners (except to the extent Customer is then paying the
amounts set forth in Section 5.1 for Roaming Services). Except as otherwise set
forth in this Agreement, Corsair shall not be responsible for any expenses
associated with operating the System.
ARTICLE VI
LICENSED SOFTWARE
6.1 Licensed Software. Corsair will install the Licensed Software in the
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System. Corsair represents and warrants that it has the authority to license or
sublicense to Customer all Licensed Software.
6.2 Ownership of the Licensed Software. Corsair and its licensors retain
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all title, copyright, patent rights, trade secret rights and all other
intellectual property and ownership rights to the Licensed Software.
6.3 Grant of License. Corsair grants to Customer a nonexclusive, non-
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transferable (except upon an assignment of the entire Agreement in accordance
with Section 12.5), license to use the Licensed Software solely as incorporated
in the System purchased by Customer pursuant to this Agreement for its own
internal use during the term of this Agreement; provided, however, that Customer
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shall have no right to sell, license, grant, or convey any rights under the
Licensed Software to any person, except that Customer may employ third parties
to operate the Licensed Software on Customer's behalf to the extent such third
parties (i) have been approved by Corsair in writing, which approval shall not
be unreasonably withheld, and (ii) have entered into a nondisclosure agreement
with Corsair. Customer may not copy, reverse compile, reverse engineer,
translate, port, modify, disclose, publish, merge or create derivative works of
the Licensed Software or use it in any manner not expressly authorized by this
Agreement.
6.4 Limited Software Warranty. Corsair warrants that the Licensed
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Software in the version and level that is current on the Effective Date and any
New Software Releases obtained by Customer shall, during the term of this
Agreement, when working together with Corsair RFUs and the SCC, operate the
System purchased pursuant to this Agreement substantially in accordance with the
Description. The Licensed Software is complex and may contain minor
nonconformities, defects or errors. Corsair does not warrant that the Licensed
Software will be error free or uninterrupted, or that all nonconformities can or
will be corrected. Corsair does warranty such nonconformities, defects and
errors will not negatively impact the System's overall performance.
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Customer must notify Corsair within the warranty period of any warranty
claim and Corsair shall correct, patch or replace the Licensed Software at no
additional cost to Customer.
The limited warranty is void if any nonconformity has resulted from
accident, abuse, misuse, misapplication, or modification by someone other than a
Corsair employee, representative or agent. This limited warranty is
nontransferable, except upon an assignment of the entire Agreement in accordance
with the provisions of Section 12.5.
THE EXPRESS WARRANTY IN THIS SECTION 6.4 IS A LIMITED SOFTWARE WARRANTY AND
IT IS THE ONLY WARRANTY MADE BY CORSAIR WITH RESPECT TO THE LICENSED SOFTWARE.
CORSAIR MAKES AND CUSTOMER RECEIVES NO OTHER WARRANTY, WHETHER EXPRESS OR
IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR
PURPOSE ARE EXPRESSLY EXCLUDED.
6.4.1 Licensed Software Warranty Response Time. Corsair will either
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repair or replace any defective Licensed Software covered by the warranty in
Section 6.4 above within five calendar days of the date that Customer notifies
Corsair of a defect, unless the defect falls within the description of a
"Category Level 1" or "Category Level 2" problem as defined in Schedule 7, in
which case the defect shall be corrected within the time frames associated with
those categories of problems. If Corsair fails to correct defective Licensed
Software covered by warranty within the applicable time frame, it shall either
remit to Customer, or increase Customer's Credit Amount by, the sum of $100 per
day for each day beyond the applicable time frame that the defect remains
uncorrected.
6.5 Restrictions. The Licensed Software is unpublished, and shall at all
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times remain the Proprietary Information (as defined in Section 8.1 below) of
Corsair and shall be treated as such by Customer whether or not such information
contains any "Confidential" or "Proprietary" markings. Customer represents and
warrants that neither Customer nor its employees, representatives or agents have
acquired or shall attempt to acquire, any proprietary interest in, or other
right to, the Licensed Software other than as expressly granted herein.
Customer will not reverse assemble, decompile, reverse engineer or otherwise
attempt to derive the source code from any Licensed Software.
6.6 New Software Releases. All New Software Releases made generally
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available by Corsair to its customers (whether or not at a cost to them) up to
and including Release 3.0 as such New Software Releases are described in
Schedule 9 hereof, shall be provided free of charge to Customer for use during
the term of this Agreement. Thereafter, Corsair shall make available to
Customer all New Software Releases made generally available by Corsair to its
customers for Corsair's then published price for such New Software Releases.
All New Software Releases shall be provided to Customer subject to the same
terms and conditions which govern the ownership, use and transfer of the
Licensed Software under this Agreement.
-12-
ARTICLE VII
SYSTEM SUPPORT AND MAINTENANCE
Corsair shall provide Customer during the term of this Agreement, with the
services described in Sections 1 and 2 of the Support Agreement. In entering
into this Agreement the parties agree to be bound by the terms and conditions
contained in the Support Agreement. The payment for such services shall be as
described in Sections 2.2(b) and 2.4(d) hereof.
ARTICLE VIII
PROPRIETARY INFORMATION
8.1 Proprietary Information. Each party acknowledges that in connection
-----------------------
with the performance of this Agreement such party may learn information of the
other party that is the property of such other party and confidential to it
("Proprietary Information"). Such Proprietary Information includes, but is not
limited to engineering and technical data, production data, test data and test
results, subscriber information, MIN/ESN information, fingerprint data, vendor
information, cell site locations, building plans, site acquisition and
development plans. Accordingly, each party covenants to the other party that:
(a) Such party will maintain all Proprietary Information of the other
party in confidence with the same level of protection and care that party
normally affords its own proprietary information, but in no event less than
reasonable care;
(b) Such party will not use or disclose, and will not permit its
employees, agents, representatives or independent contractors to use or
disclose, any of the Proprietary Information of the other party without the
express written consent of the other party;
(c) Such party will require all persons, including its employees,
agents, representatives or independent contractors, who have had access to such
information to enter into an agreement to keep confidential and not to use any
such information;
(d) Such party will not use any Proprietary Information of the other
party in any way except as allowed herein; and
8.2 Permitted Uses. Notwithstanding the provisions of Section 8.1 hereof,
--------------
neither party's use or disclosure of the Proprietary Information of the other
party will be deemed to breach Section 8.1 if and to the extent the Proprietary
Information in question:
-13-
(a) is now or hereafter becomes available to the public without a
breach of Section 8.1 hereof;
(b) is received by the receiving party without restrictions on its
use or further disclosure by a third party (excluding MIN/ESN combinations and
Fingerprint Data received by Corsair or Customer); or
(c) is required to be disclosed pursuant to applicable law,
regulation or court order, but only to the extent and for the purpose of such
required disclosure after providing the other party with advance written notice
of such disclosure and an opportunity to seek to limit or restrict such
disclosure or to obtain appropriate protective/secrecy orders.
8.3 Return of Proprietary Information. The recipient of Proprietary
---------------------------------
Information will promptly return to the disclosing party, or certify to the
disclosing party, that the recipient has destroyed all documents, electronic
media and other items received from the disclosing party which contain
Proprietary Information, including any copies thereof made by the recipient, its
agents or employees, at such times as the recipient no longer needs the
Proprietary Information for purposes of exercising its rights or performing its
duties under this Agreement and any license grant covering such information has
expired or has been terminated. For purposes of this Agreement, all MIN/ESN
combinations received by Corsair shall be deemed to be the Proprietary
Information of Customer and all Fingerprint Data shall be deemed to be the
Proprietary Information of Corsair.
8.4 Other Agreements. The terms of this Article VIII shall supersede all
----------------
prior letters of intent, agreements, covenants, arrangements, communications,
representations, or warranties, whether oral or written, by any officer,
employee, or representative of either party relating to the confidentiality of
information exchanged by the parties in connection with the performance of this
Agreement.
ARTICLE IX
PATENT INDEMNITY
Corsair shall defend and hold Customer harmless or settle any claim or suit
brought against Customer arising from or based an allegation that the System
acquired pursuant to this Agreement or any component thereof, when used within
the scope of this Agreement infringes a United States patent, copyright,
license, trade secret or other intellectual property or proprietary right. If
Corsair is notified in writing within fourteen (14) days of receipt of written
notice of a claim by Customer and given information, assistance reasonably
requested by Corsair and the sole authority (after first consulting with
Customer) to defend or settle, Corsair shall pay all damages and costs of
settlement incurred by Customer in connection with such claim or suit. If the
System acquired pursuant to this Agreement is held or determined by Corsair to
infringe, Corsair shall at
-14-
its option: (a) obtain for Customer the right to continue using the System or
(b) replace it with a comparable non-infringing System or (c) modify the System
so it is non-infringing or (d) accept return of the System and reimburse
Customer for the price of the System as contained in this Agreement, less
depreciation of the System based on a System life of five (5) years. The
foregoing obligation of Corsair shall not apply with respect to alleged
infringement (i) resulting from Customer's alteration or modification of the
System or (ii) to the extent the System is modified by Corsair to comply with
specifications provided by Customer (to the extent alleged infringement relates
to such modification). The foregoing states the entire responsibility of
Corsair to Customer for patent infringement.
ARTICLE X
CHANGES
If, after the Effective Date, Corsair determines, in its sole discretion,
to make any changes to the System, Corsair shall notify Customer by copy of a
written document identifying said changes and shall provide written
documentation of such changes to Customer. Corsair agrees not to make any
changes to the System that shall (i) cause the System to fail to perform in
accordance with the Description, (ii) cause Customer to incur increased costs to
operate the System or (iii) result in an adverse impact upon the warranties
accruing to Customer pursuant to this Agreement.
ARTICLE XI
TERM, TERMINATION AND SURVIVAL
11.1 Term. This Agreement shall commence on the Effective Date and expire
----
on the date three (3) years following the Effective Date.
11.2 Termination. Either Corsair or Customer may terminate this Agreement
-----------
if the other party breaches any of its obligations stated in this Agreement and
fails to cure such breach within sixty (60) days after receipt of written notice
from the nonbreaching party. The right to termination hereunder shall be in
addition to, and not as a substitute for, any other remedies available to the
parties in law or equity. In the event that this Agreement is terminated as a
result of a material breach of Corsair, Customer shall be entitled on the date
of termination to a rebate of a pro rata portion of the fees paid to Corsair on
the most recent anniversary of the Effective Date pursuant to Sections 2.3(d)
and 2.3(e) equal to (i) the number of days prior to the next anniversary of the
Effective Date divided by (ii) three hundred and sixty-five (365).
11.3 Mutual Termination. Notwithstanding anything to the contrary
------------------
contained in this Agreement, the parties may terminate this Agreement at any
time by mutual written agreement.
-15-
11.4 Survival. Sections 2.3, 2.4, 2.5, 4.3, 4.4, 4.5, 5.2, 5.3, 5.5,
--------
5.5.1, 5.6, 6.2, 6.3, 6.4, 6.4.1, 6.5, 11.4, 12.3 and 12.12 and Article VIII and
Article IX shall survive the expiration or any prior termination of this
Agreement.
11.5 Suspension. Customer may at any time and from time to time if
----------
Customer determines in its sole discretion that the System is harming or
threatening to harm its cellular network, turn off and suspend use of the
System, or require Corsair to do so.
ARTICLE XII
GENERAL
12.1 Amendment. This Agreement may not be amended except by a writing
---------
signed by authorized representatives of both parties.
12.2 Excusable Delays. Neither party shall be liable for any delay or
----------------
failure in its performance of any of the acts required by this Agreement when
such delay or failure arises beyond the reasonable control of such party,
including, without limitation, acts of God or public enemies, labor disputes,
material or component shortages, supplier failures, embargoes, rationing, acts
of local, state or national governments or public agencies, utility or
communication failures or delays, fire, flood, epidemics, riots and strikes.
The time for performance of any act delayed by such causes shall be postponed
for a period equal to the delay; provided, however, that the party so affected
-------- -------
shall use its best efforts to provide notice to the other party of such delay
within ten (10) days after becoming aware of such delay. The party so affected,
however, shall use its best effort to avoid or remove such causes of
nonperformance and to complete performance of the act delayed, whenever such
causes are removed.
12.3 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
-----------------------
THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES
(INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM THE LOSS OF BUSINESS,
DATA, PROFITS OR GOODWILL) INCURRED OR SUFFERED BY THE OTHER PARTY WITH RESPECT
TO THE PERFORMANCE OF THIS AGREEMENT AND THE SUPPORT AGREEMENT, THE
INSTALLATION, USE, OPERATION, DEFECT OR FAILURE OF THE SYSTEM, OR FOR ANY OTHER
REASON, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT WILL
CORSAIR BE LIABLE TO CUSTOMER FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE AMOUNT
PAID BY CUSTOMER TO CORSAIR PURSUANT TO THIS AGREEMENT. Customer understands
that Corsair is not responsible and will have no liability for hardware,
software or other items or any services provided by any persons other than
Corsair or its authorized agents or representatives.
12.4 Publicity. Neither party will use the other party's name in any
---------
advertising or promotional media without that party's prior written consent on a
case-by-case basis which consent shall not be unreasonably withheld. Either
party will be permitted,
-16-
however, to discuss the general scope of its work with the other and to disclose
the existence of a contract between the parties to any third party. Customer
and Corsair agree to use their respective best efforts to issue within two (2)
business days of the Effective Date a press release in the form mutually agreed
to by the parties.
12.5 Successors and Assigns. Neither party may assign this Agreement to
----------------------
any third party without the prior written consent of the other party, which
consent will not be unreasonably withheld; except that either party may assign
this Agreement to an Affiliate, an acquiror of all of its assets, business or
stock or to a successor by merger or consolidation.
12.6 Applicable Law. This Agreement will be governed by the laws of the
--------------
State of ________, without regard to principles of conflict of laws.
12.7 Severability. If any provision of this Agreement shall be finally
------------
determined to be unlawful, then such provision shall be deemed to be severed
from this Agreement and every other provision of this Agreement will remain in
full force and effect.
12.8 Waiver. No waiver of any term, provision, or condition of this
------
Agreement, whether by conduct or otherwise, in any one or more instances, will
be deemed to be, or will constitute, a waiver of any other provision hereof,
whether or not similar, nor will such waiver constitute a continuing waiver. No
waiver will be binding unless evidenced by a written instrument executed by the
party making the waiver.
12.9 No Third Parties. Neither this Agreement nor any provisions set
----------------
forth herein is intended to, or shall, create any rights in or confer any
benefits upon any person other than the parties hereto.
12.10 Incorporation by Reference; Precedence. The schedules to this
--------------------------------------
Agreement constitute integral parts of this Agreement and are hereby
incorporated into this Agreement by this reference. In the event of any
conflict or inconsistency between the language of this Agreement and the
language of any schedule to this Agreement, the language of this Agreement shall
be controlling. All capitalized terms used in the schedules to this Agreement,
but not defined therein, shall have the same meaning when used in such schedules
as when used in this Agreement.
12.11 Notices. Unless otherwise expressly provided herein, all notices,
-------
requests and other communications hereunder shall be in writing sent to the
address/fax number set forth below (provided that any party may at any time
change its address for notice or other such information by giving written notice
thereof in accordance with this section), and shall be deemed to have been duly
given upon the earliest of (a) hand delivery, (b) the first business day after
sending by reputable overnight delivery service for next-day delivery, (c) the
time of successful facsimile transmission (or in the event the time of receipt
of the fax in the city where the fax is received is not during regular business
hours on a business day, then at the customary hour for the opening of business
on the next business day) or (d) the date actually received by the other party:
-17-
If to Customer, to: _______________________________________
_______________________________________
_______________________________________
_______________________________________
Attention: ____________________________
Fax No.: ____________________________
Copy to: Legal Department
Attention: ____________________________
Fax No.: ____________________________
If to Corsair, to: Corsair Communications, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
Copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxx "X" Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
12.12 Dispute Resolution. If the parties should have a material dispute
------------------
arising out of or relating to this Agreement or the parties' respective rights
and duties hereunder, then the parties will resolve such dispute in the
following manner:
(a) Either party may at any time deliver to the other a written
dispute notice setting forth a brief description of the issue for which
such notice initiates the dispute resolution mechanism contemplated by this
Section 12.12.
(b) During the forty-five (45) day period following the delivery of
the notice described in Section 12.12(a) above, appropriate representatives
of both parties will meet and seek to resolve the disputed issue through
negotiation.
(c) If representatives of the parties are unable to resolve the
disputed issue through negotiation, then within thirty (30) days after the
period described in Section 12.12(b) above, the parties will refer the
issue
-18-
(to the exclusion of a court of law) to final and binding arbitration in
______________________ in accordance with the then existing rules (the
"Rules") of the American Arbitration Association ("AAA"), and judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof; provided, however, that the law applicable to any
controversy shall be the law of the State of ________, regardless of
principles of conflicts of laws. In any arbitration pursuant to this
Agreement, the award or decision shall be rendered by a majority of the
members of a Board of Arbitration consisting of three (3) members, one of
whom shall be appointed by each party and the third of whom shall be the
chairman of the panel and be appointed by mutual agreement of said two
party-appointed arbitrators. In the event of failure of said two
arbitrators to agree within sixty (60) days after the commencement of the
arbitration proceeding upon the appointment of the third arbitrator, the
third arbitrator shall be appointed by the AAA in accordance with the
Rules. In the event that either party shall fail to appoint an arbitrator
within thirty (30) days after the commencement of the arbitration
proceedings, such arbitrator and the third arbitrator shall be appointed by
the AAA in accordance with the Rules.
(d) Notwithstanding the foregoing, the request by either party for
preliminary or permanent injunctive relief, whether prohibitive or
mandatory, shall not be subject to arbitration and may be adjudicated only
by the _________________ Superior Court or the appropriate U.S. District
Court in ________.
12.13 Attorneys Fees. The prevailing party in any action to enforce this
--------------
Agreement shall be entitled to recover reasonable costs and expenses including,
without limitation, attorneys' fees.
12.14 Equitable Relief. The parties recognize and agree that monetary
----------------
damages are an inadequate remedy for the unauthorized copying or use of the
Licensed Software or disclosure of Confidential Information, and further
recognize that such actions by either party would result in irreparable harm to
the other party. Therefore, in the event of such actions or upon a threat of
such actions by either party, the other party may seek injunctive, preliminary
injunctive or other equitable relief in addition to such other and further
relief as may be proper.
12.15 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same single instrument.
12.16 Status. The parties will carry out their respective duties and
------
obligations hereunder as independent contractors. Nothing contained in this
Agreement shall be deemed to create any association, partnership, joint venture,
or relationship of principal and agent or master and servant between the
parties.
-19-
12.17 Complete Agreement. This Agreement sets forth the entire
------------------
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior letters of intent, agreements, covenants, arrangements,
communications, representations, or warranties, whether oral or written, by any
officer, employee, or representative of either party relating thereto.
12.18 Facilities. Customer will provide Corsair personnel space and other
----------
facilities and equipment as needed for the installation of the System.
12.19 Permits and Licenses. Customer will obtain any and all permits,
--------------------
licenses and certificates required for the installation of the System at any
Customer cell site by any regulatory agency or any other entity for the
installation and use of the System, including any of its components.
12.20 Taxes. All taxes designated, levied or based on the prices, rates,
-----
charges or fees or on this Agreement or the purchases provided hereunder, paid
or payable by Corsair shall be added to an invoice and paid or reimbursed by
Customer. Both parties agree to comply with all federal, state and local laws
as they pertain to each party and shall make no claim on the other party for
such taxes except as provided in the immediately preceding sentence.
12.21 Insurance. Corsair shall procure and maintain the following types
---------
of insurance and coverage during the term of this Agreement:
TYPE OF INSURANCE MINIMUM AMOUNT
(a) Xxxxxxx'x compensation As required by
and all occupational California law
disease
(b) Employer's liability $100,000 per occurrence
including all occupational
diseases when not so
covered under workmen's
compensation above
(c) General liability $1,000,000 per occurrence
including product and annual aggregate
and completed operation,
bodily injury and property
damage combined
(d) Automobile liability $1,000,000 per occurrence
(comprehensive), bodily
injury and property
damage combined
-20-
(e) Umbrella liability $1,000,000 per occurrence
and annual aggregate
Corsair agrees to obtain insurance naming Customer as an additional insured and
to promptly furnish to Customer certificates of the foregoing insurance.
Corsair shall notify Customer in writing at least thirty (30) calendar days
prior to cancellation of, or a material change in any of the above policies.
All persons furnished by Corsair shall be considered solely its employees or
agents.
12.22 Source Code Escrow. The parties agree that the source code for the
------------------
Licensed Software developed or owned by Corsair and documentation therefor in
the current version then used by Customer, if not already in Customer's
possession, shall be promptly delivered by the Escrow Agent (as defined below)
to Customer within thirty (30) days of Customer's written request (i) upon any
commencement of a bankruptcy proceeding by or against Corsair, unless Corsair
elects to continue to perform all of its obligations under this Agreement, or
(ii) if not delivered under (i) above, upon the rejection of this Agreement by
or on behalf of Corsair or its trustee or in the event Corsair (or its
successors) ceases doing business. Corsair shall concurrently herewith
designate an escrow agent ("Escrow Agent") and at its sole cost, promptly
deposit with the Escrow Agent a copy of the source code for such software, and
maintain the source code thereafter in current version as in use by Customer,
with all documentation. Corsair shall provide Customer with the name and
address of the Escrow Agent, and a copy of its escrow agreement, within ten (10)
days of the Effective Date or any subsequent appointment of a replacement Escrow
Agent. The escrow agreement shall include provisions substantially consistent
with this Section 12.22.
12.23 Nonexclusivity. It is expressly understood and agreed that this
--------------
Agreement does not grant to Corsair any exclusive privileges or rights to
contract with Customer and that Customer may contract with other vendors,
manufactures and suppliers for the procurement of comparable products and
services.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-21-
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
"CUSTOMER"
___________________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
"CORSAIR"
CORSAIR COMMUNICATIONS, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
[SIGNATURE PAGE TO AGREEMENT]
SCHEDULE 1
----------
PHONEPRINT(TM)
SYSTEM DESCRIPTION
AND
PERFORMANCE GOALS
System Description
------------------
The System integrates into a cellular operator's existing cellular
infrastructure and operates in parallel with traditional cellular call
processing. Administration, alarm reporting and maintenance of these cell site
units is provided by a central unit allowing carriers to control and monitor the
operation of the System from a single point.
The System is made up of two basic components.
The RADIO FREQUENCY UNIT ("RFU") is installed at the cell site in the carrier's
market. It monitors the reverse control channel and extracts unique fingerprint
data from each mobile emitter within coverage of the cell site. Specific
emitter characteristics ("Fingerprints") are compared to a Fingerprint database
against which valid or fraudulent cellular use determinations are made. The
System attempts to terminate all calls as being fraudulent via a simulated hang-
up sequence from the RFU injected back into the network via a simulated hang-up
sequence from the RFU.
The SYSTEM CONTROL CENTER ("SCC") is currently operated by the Operations Group
located at Corsair Communications in Palo Alto, California. It contains a
database of valid and fraudulent cellular users for the Customer's market. The
SCC is networked to each of the RFUs in the Customer's market.
The SCC receives Fingerprint data daily from the RFUs in the market and uses
this Fingerprint data to update the SCC master database for all mobile emitters
in the market. From the updated master database, specific Fingerprint data is
transferred to all the RFUs daily, allowing market-wide coverage of fraud
detection for cellular users who move throughout the area of RFU deployments.
The modular architecture of the System allows the Customer to begin controlling
fraud in a few cell sites and expand coverage over one or more cellular
geographic areas.
The System allows TDMA digital telephones, when operating in analog mode, to be
validated, fingerprinted and terminated.
System Capabilities
-------------------
The System includes the following capabilities and/or specifications:
1-1
A. Database storage capacity for each SCC is up to two million MIN/ESN
combinations (with associated fingerprints).
B. Each RFU has a sustained termination rate of .75 calls per second.
C. Each RFU can process 2.5 Reverse Control Channel Events per second per
sector.
D. Expected 98% system availability (excludes downtime resulting from factors
outside of Corsair's sole control, including, but not limited to,
Customer's failure to follow escalation procedures and make cell sites
accessible to Corsair and transportation to cell site for parts and
technicians).
E. A single SCC can be configured to support up to 200 RFUs. The SCC
purchased as part of the Initial Order is configured to be capable of
supporting 75 RFUs.
Performance Goals
-----------------
Corsair has established the following performance goals for the System which are
measured based upon the test set forth in Schedule 7, attached hereto:
A. greater than 90% termination of clone and roaming clone calls.
B. less than .75% termination of good customer calls.
System Capacity
---------------
The System has the following capacity and functionality:
A. System Control Center
---------------------
The current SC hardware configuration holds two million MINs in the master
fingerprint library. This capacity can easily be expanded with the
addition of more disk space.
B. Radio Frequency Unit
--------------------
The current RFU has disk space to store the fingerprints for one million
MINs. With MIN caching and real-time fingerprint sharing, the RFU can
effectively service a market of several million MINs.
C. MIN Caching and Real-time Fingerprint Sharing
---------------------------------------------
The RFU will hold fingerprints for the first million MINs observed by all
PhonePrint RFUs in the deployment. The date of the most recent intercept
(registration, call origination or page response) is maintained for each
MIN at
1-2
each RFU. When the database reaches one million MINs, each RFU begins to
use caching. This allows the RFU to prune the home MINs with the longest
time since the last intercept and roamer MINS after a configurable amount
of time from the onboard database. Each RFU deletes different MINs based
on the MINs observed at that site.
With PhonePrint release 2.3, the system can request fingerprints in real
time from the SCC. Thus, if an RFU detects a call or registration from a
MIN it does not have on file, the RFU requests that fingerprint from the
SCC. This applies to both home subscribers and roamers. When the caching
feature has previously pruned away a MIN, the RFU simply requests that MIN
from the SCC the next time it observes the MIN (most of the time, the RFU
will request the MIN upon observing a registration, since these occur much
more frequently than call originations). The request and receipt of the
fingerprint both occur prior to the voice channel assignment, so the call
can be torn down if a fingerprint mismatch warrants. The RFU will add
newly requested MINs to the onboard database with the current date.
Because the SCC master database is configures to hold fingerprints for all
MINs in the market, it always has the most current fingerprint available
for any RFU requesting it.
1-3
SCHEDULE 2
----------
PRE-SITE AND INSTALLATION RESPONSIBILITIES TIMETABLE
The following tables set forth the responsibilities (and an estimated
timetable for completing such responsibilities) of both parties to the Agreement
during the installation and commissioning of the RFU's included in Customer's
Initial Order which have not already been deemed accepted.
Corsair Responsibilities:
--------------------------------------------------------------------------------
ESTIMATED
COMPLETION
ACTIVITY DATE
--------------------------------------------------------------------------------
Identify field supervisor
--------------------------------------------------------------------------------
Perform joint pre-site surveys
--------------------------------------------------------------------------------
Ship PhonePrint(TM) units to customer warehouse
--------------------------------------------------------------------------------
Connect PhonePrint(TM) system interfaces to cell site equipment
--------------------------------------------------------------------------------
Connect PhonePrint(TM) system to Telco line
--------------------------------------------------------------------------------
Commission PhonePrint(TM) systems
--------------------------------------------------------------------------------
Identify Installation Kit
--------------------------------------------------------------------------------
Site Test and Verification
--------------------------------------------------------------------------------
Customer Responsibilities:
--------------------------------------------------------------------------------
ESTIMATED
COMPLETION
ACTIVITY DATE
--------------------------------------------------------------------------------
Identify installation coordinator (TBD supervisor)
--------------------------------------------------------------------------------
Identify PhonePrint(TM) installation sites
--------------------------------------------------------------------------------
Schedule pre-site surveys
--------------------------------------------------------------------------------
Provide cell site technician information for each cell site (name,
phone #, pager #, etc.)
--------------------------------------------------------------------------------
Provide cell site field manager information for each cell site
--------------------------------------------------------------------------------
2-1
PRE-SITE AND INSTALLATION RESPONSIBILITY TIMETABLE (CONTINUED)
Customer Responsibilities:
--------------------------------------------------------------------------------
Provide Corsair information for each cell site (Location of
cell site, security issues)
--------------------------------------------------------------------------------
Provide specific site information ((Alpha), (Beta), and (Gamma)
setup channels, color codes)
--------------------------------------------------------------------------------
DC power installation
--------------------------------------------------------------------------------
Delivery of PhonePrint(TM) units to cell sites
--------------------------------------------------------------------------------
Joint Responsibilities:
--------------------------------------------------------------------------------
ESTIMATED
COMPLETION
ACTIVITY DATE
--------------------------------------------------------------------------------
Perform joint pre-site surveys
--------------------------------------------------------------------------------
Schedule access times for PhonePrint(TM) connection and
commissioning for all site
--------------------------------------------------------------------------------
Install antenna cable directional coupler(s) (performed during site
installation or commissioning)
--------------------------------------------------------------------------------
Define Network Requirements Implementation Plan
--------------------------------------------------------------------------------
2-2
SCHEDULE 3
----------
RFU HARDWARE SPECIFICATIONS
Each RFU consists of the following sections:
. Processor/Receiver Chassis capable of processing and fingerprinting
all calls processed by base station, and capable of terminating all
calls determined to be fraudulent; and capable of interfacing and
receiving all calls processed on a three sector Ericsson base station.
. Call Teardown Chassis capable of terminating calls determined to be
fraudulent.
. All necessary hardware for a complete RFU system installation,
including fastening hardware and cabling.
3-1
SCHEDULE 4
----------
SYSTEM CONTROL CENTER SPECIFICATIONS
Quantity Item
-------- ----
. 1 SunSPARCstation 20
. 1 64MB Memory Expansion
. 1 32 MB Memory Expansion
. 1 Internal 1.44-MByte Floppy Disk Drive
. 1 SunCD 2Plus Internal CD-ROM Drive
. 1 Solaris 1.X Single System License
. 2 SBus Fast SCSI-2/Buffered Ethernet
. 2 2.1 Gbyte 7200 RPM Fast/Wide SCSI 2 Disk-UniPack with
50 to 68 Pin SCSI Cable
. 4 2.1 Gbyte 7200 RPM Fast/Wide SCSI 2 Disk-UniPack with
68 to 68 Pin SCSI Cable
. 1 20 Gbyte 4mm Tape Auto-Loader Desktop Storage Module
4-1
SCHEDULE 5
----------
LICENSED SOFTWARE
The System is delivered with the following licensed software installed as
follows:
SCC Software
. GNU public-domain tools: ghostscript and xxxxx
. Solaris 1 (also called SunOS 4.1.4)
. MIT X-Windows Server (XIIr5)
. Sybase 4.92
. OSF's Motif 1.2
. All additional software, if any, including certain proprietary
software of Corsair, necessary to cause the System to function in
accordance with the description.
RFU Software
. Venix 1.1 (Novell UnixWare 1.1.3)
. Maxpeed Corporation's driver for multiport serial card 55-8 Plus, Rev.
A
. All additional software, if any, including certain proprietary
software of Corsair, necessary to cause the System to function in
accordance with the description.
5-1
SCHEDULE 6
----------
SITE COMMISSIONING PROCESS
During the site commissioning process the System shall be tested to assure
the following:
. System powers up
. Standard operating system boot status is correct
. Software menus and displays come up using a test VGA monitor
. System self test process runs
. Phone intercepts are detected and data that is displayed by the System
is consistent and correct
. System can terminate calls
In addition, during the site commissioning process Corsair shall configure
the system cell name, number, type, channel #, terminator on/off and color code.
6-1
SCHEDULE 7
----------
COMPREHENSIVE SERVICE AND SUPPORT AGREEMENT
This Comprehensive Service and Support Agreement ("Agreement") is
entered into _________________ between Corsair Communications, Inc., a Delaware
corporation with its principal place of business located at 0000 Xxxxxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Corsair") and
________________________________________________ with an office located at
_______________________________________________________ ("Customer").
PRELIMINARY STATEMENT
12.21 Pursuant to a Master Purchase and Licensing Agreement of even date
herewith (the "Purchase Agreement") Customer has previously purchased equipment
Corsair manufactures and markets for use in mitigating radio telephone fraud.
12.22 Both parties to this Agreement desire to have the equipment purchased by
Customer from Corsair perform effectively and efficiently.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, and intending to be legally bound hereby, Customer and
Corsair hereby agree as follows:
1. COVERAGE
--------
1.1 Corsair will provide Support Services (as further described below) for
the hardware and software (as set forth on Schedule A and collectively referred
to herein as the "Product") pursuant to the following terms and conditions.
1.2 Subject to the terms hereof, Corsair will provide Support Services to
Customer and this Agreement shall remain in effect until the expiration or
earlier termination of the Purchase Agreement.
2. SUPPORT SERVICES
----------------
2.1 Support Services include the following:
a. (i) Response to Customer calls from the 0(000)0XXXXXXX toll free
number. Customer presses "1" to reach the Corsair Operations
Group's Technical Assistance Center.
7-1
(ii) Technical Assistance Center Representatives shall answer the
phones from 6:30 a.m. to 5:00 p.m. Pacific Time, Monday through
Friday, excluding holidays.
(iii) A voice messaging system that supports urgent messages by
paging on-call Support Specialists shall be available 24 hours a
day, 7 days a week.
(iv) Response to initial Customer calls shall be within 15 minutes of
call receipt.
(v) Commitment to start evaluation of system level problems that can
be resolved at Corsair via network or remote access shall be
within 2 hours.
Corsair shall use its best efforts to identify, verify and resolve
errors in the Product. Corsair's system for managing and resolving reported
problems is further described on Schedule B and the parties agree to comply with
the requirements set forth therein.
b. Cell site installation and maintenance support services, consisting of
call logging, technical management and escalation, remote diagnosis, parts
exchange and repair, field change orders ("FCOs"), and general help desk support
in maintaining cell site Radio Frequency Units ("RFUs") and the System Control
Center ("SCC").
(i) Corsair shall use its best efforts to provide on-site support
for problems on a next-day basis for RFUs and on a same-day response basis for
SCCs and shall provide regular maintenance (as described in Schedule E) to
ensure that the Product, when working under normal conditions, performs
according to the Product description published by Corsair.
(ii) Corsair shall perform on-site cell site maintenance for the
Product, including, but not limited to, cleaning the Product, performing the
maintenance set forth on Schedule E attached hereto, replacing failed sub-
assemblies, installing FCOs, performing operating checks and other tasks
described in Corsair's Field Service Manual.
(iii) Corsair shall use its best efforts to deliver and install Field
Replaceable Units ("FRUs") for RFUs on-site within twenty-four (24) hours of the
receipt of a request from Customer for emergency exchange FRUs.
(iv) Corsair shall provide Customer at no charge with updates to
documentation that Corsair makes generally available to its customers within two
weeks of the general release of such documentation.
(v) Customer shall not be responsible for Corsair's time and
expenses (excluding the cost of replacement parts and upgrades), to resolve a
problem during an
7-2
on-site visit, except if the problem is one that is otherwise not covered by
Corsair, as set forth in Section 2.2 below; all replacement parts shall be
furnished to Customer on an exchange basis and all replaced parts shall become
the property of Corsair. All replacement parts shall be supplied by Corsair
free of additional charge prior to the second anniversary of the date of this
Agreement and thereafter, unless Customer subscribes for Corsair's extended
parts protection plan, the cost of which shall not exceed $275 per RFU/per
annum, Customer shall pay Corsair's published price for such parts. All
replacement parts shall be subject to the warranty, if any, applicable to the
part that was replaced, and to the extent permitted by the manufacturer, Corsair
shall assign to Customer any manufacturer's warranties for the replacement
parts.
c. Training conducted at Customer's facilities.
(i) Corsair shall provide Customer with up to four (4) eight (8) hour
training courses during each one (1) year period during the term of this
Agreement free of charge (except for travel and lodging costs for Customer's
employees or Corsair's trainers). Additional training courses shall be made
available to Customer at Corsair's then current rates for such courses.
Schedule C contains a list of training courses currently available from Corsair,
including the duration and current cost for each. Corsair shall provide, in an
ongoing basis, updates to this information.
d. All Product descriptions published by Corsair that Corsair generally
makes available to its Customers shall be provided free of charges to Customer.
e. Corsair will provide, at no cost to Customer, new release support when
upgrading any components of the SCC.
2.2 Corsair shall have no obligation to support any:
a. Product that is altered, damaged, modified, repaired or transported by
Customer or any third party without the prior written approval of Corsair, or
any portion of the Product incorporated with or into other software;
b. Software incorporated in the Product that is not the then current
release, or one of the two immediately previous releases.
c. Product problems caused by negligence, abuse or misapplication, use of
Product other than as specified in documentation provided by Corsair to Customer
or other causes beyond the control of Corsair.
2.3 Corsair reserves the right to make a reasonable inspection of any RFU
or SCC to determine its condition prior to resuming Support Services when the
RFU or SCC has not been under a support commitment from Corsair during the
previous thirty (30) days. Customer shall pay Corsair's then current reasonable
inspection charges (which are currently $95 per hour). Corsair shall provide
Customer with a written estimate (at Corsair's then current rate for labor
(which is currently $95 per hour), parts
7-3
and expenses) of any repairs necessary to place the Product in good operating
condition. Customer shall authorize Corsair to conduct such repairs prior to
Corsair agreeing to provide any Support Services on such Product.
2.4 Corsair shall provide Customer with one copy of new versions and
updates of software products developed by Corsair for Customer to evaluate and
test prior to system wide deployment together with any new or updated
documentation that Corsair, in its discretion, makes generally available to its
customers with respect to such software. Corsair is currently targeting two (2)
software releases per year during the term of this Agreement.
2.5 Upon Customer's written request, Corsair may provide other services
not set forth herein that Corsair makes generally available to its other
customers. For billing purposes, the time required to perform any such services
shall be rounded to the nearest one-half (1/2) hour.
3. CUSTOMER'S OBLIGATIONS
----------------------
3.1 Customer shall use its best efforts to cooperate with Corsair in all
reasonable aspects of the Support Services provided hereunder. Customer shall
ensure that the Product is installed in a location meeting the environmental
conditions set forth in Schedule D.
a. Customer shall provide Corsair with five (5) days written notice
prior to moving the Product, provided, however, that Customer covenants not to
-------- -------
request Corsair to move any more than three (3) RFUs in any consecutive seven
(7) day period. Upon Customer's request, Corsair shall deinstall the Product
and reinstall it at the new location at Corsair's rates for field engineering
services (which are currently $95 per hour) plus all of Corsair's reasonable
cost and expenses required to complete the project (including, but not limited
to cost for any materials or equipment rentals). Customer shall be responsible
for all shipping arrangements and expenses required to move the Product. If
Customer does not purchase Corsair's deinstallation and reinstallation services,
Corsair shall be entitled to inspect and, if necessary, repair the Product after
it is moved and prior to resuming Support Services. The charges for such
inspection shall be in accordance with Corsair's rates for field engineering
services plus Corsair's reasonable expenses.
3.2 Customer shall, as soon as practical, upon becoming aware of such,
notify Corsair of all Product failures and all complaints and shall provide
Corsair with all necessary information, as reasonably requested by Corsair, and
reasonable assistance necessary for Corsair to comply with its obligations
hereunder, including, but not limited to providing cell site access, security
protection in cases where Customer would routinely provide security protection
for its own personnel, and cell site technician support when problems in other
equipment utilized by Customer may be impacting Product performance or
operation. The provision of security by Customer in any instance shall not be
interpreted as a guarantee by Customer of any Corsair employees personal safety.
7-4
3.3 Customer shall return to Corsair all failed or replaced parts within
fifteen (15) business days of receipt by Customer of replacement parts or
upgrades. Customer shall either (i) ship the failed or replaced parts to
Corsair in the container in which the replacements or upgrades were received and
shall be responsible for all shipping and insurance charges to return the parts
or (ii) return the failed or replaced parts to a Corsair representative
performing on-site Support Services. If Customer does not return the failed
parts within thirty (30) days of receipt by Customer or replacement parts or
upgrades, unless there is a good faith dispute involving such parts, Customer
shall pay for the parts at Corsair's then current list price.
3.4 Each of Corsair and Customer shall designate an employee as the key
contact person to coordinate all support services provided hereunder.
4. TERMINATION
-----------
4.1 This Agreement and all Support Services may be terminated by either
party at such time as Customer is no longer required to make payment for the
services provided hereunder pursuant to the Purchase Agreement.
4.2 The provisions of Sections 6 and 7 shall survive any termination under
this Agreement.
5. FEES AND PAYMENT
----------------
5.1 Initial Coverage: Customer hereby agrees to purchase and Corsair
----------------
hereby agrees to provide to Customer the Support Services set forth in this
Agreement for all of the RFUs and SCCs purchased by Customer pursuant to the
Purchase Agreement. The payment for such Support Services shall be as described
in Sections 2.2 and 2.4 of the Purchase Agreement. Customer shall pay or
reimburse Corsair for all taxes designated, levied or based on the prices,
rates, charges or fees for services provided under this Agreement, except for
Corsair's income taxes.
5.2 Additional RFUs: Customer may, at any time after the Effective Date,
---------------
request that Corsair provide Support Services for additional RFUs. Corsair
shall not be bound to provide such Support Services unless, within thirty (30)
days immediately prior to the date upon which Customer has requested that such
Support Services commence, such RFUs were under either a support commitment or
warranty from Corsair. In the event that Corsair agrees to provide Support
Services with respect to any additional RFUs ("Additional RFUs") the terms and
conditions of this Agreement shall govern the provision of Support Services for
such Additional RFUs.
6. LIMITATION OF LIABILITY
-----------------------
The parties agree that their respective liability under this Agreement
shall be limited in accordance with the terms of Section 12.3 of the Purchase
Agreement.
7-5
7. DISCLAIMER OF WARRANTIES
------------------------
THIS AGREEMENT CONSTITUTES A SERVICE CONTRACT AND NOT A SEPARATE PRODUCT
WARRANTY. THE PRODUCT AND ALL MATERIALS RELATED TO THE PRODUCT ARE SUBJECT
EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE PURCHASE AGREEMENT. CORSAIR
MAKES NO ADDITIONAL WARRANTIES OF ANY KIND REGARDING THE SERVICES OR ANY PARTS
PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, CORSAIR DOES NOT
HEREIN WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE
RESULTS OF THE USE OF THE PRODUCT IN TERMS OF CORRECTNESS, ACCURACY,
RELIABILITY, OR OTHERWISE. Customer understands that Corsair is not responsible
and will have no liability for hardware, software, or other items or any
services provided by any persons other than Corsair.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
7-6
SCHEDULE A
----------
HARDWARE AND LICENSED SOFTWARE
HARDWARE
Each RFU consists of the following sections:
. Processor/Receiver Chassis capable of processing and fingerprinting
all calls processed by base station, and capable of terminating all
calls determined to be fraudulent; and capable of interfacing and
receiving all calls processed on a three sector Ericsson base station.
. Call Teardown Chassis capable of terminating calls determined to be
fraudulent.
. All necessary hardware for a complete RFU system installation,
including fastening hardware and cabling.
LICENSED SOFTWARE
The System is delivered with the following licensed software installed as
follows:
SCC Software
. GNU public-domain tools: ghostscript and xxxxx
. Solaris 1 (also called SunOS 4.1.4)
. MIT X-Windows Server (XIIr5)
. Sybase 4.92
. OSF's Motif 1.2
. All additional software, if any, including certain proprietary
software of Corsair, necessary to cause the System to function in
accordance with the description.
RFU Software
. Venix 1.1 (Novell UnixWare 1.1.3)
A-1
. Maxpeed Corporation's driver for multiport serial card 55-8 Plus, Rev.
A
. All additional software, if any, including certain proprietary
software of Corsair, necessary to cause the System to function in
accordance with the description.
SYSTEM CONTROL CENTER
Quantity Item
-------- ----
. 1 SunSPARCstation 20
. 1 64MB Memory Expansion
. 1 32 MB Memory Expansion
. 1 Internal 1.44-MByte Floppy Disk Drive
. 1 SunCD 2Plus Internal CD-ROM Drive
. 1 Solaris 1.X Single System License
. 2 SBus Fast SCSI-2/Buffered Ethernet
. 2 2.1 Gbyte 7200 RPM Fast/Wide SCSI 2 Disk-UniPack with
50 to 68 Pin SCSI Cable
. 4 2.1 Gbyte 7200 RPM Fast/Wide SCSI 2 Disk-UniPack with
68 to 68 Pin SCSI Cable
. 1 20 Gbyte 4mm Tape Auto-Loader Desktop Storage Module
A-2
SCHEDULE B
----------
PROBLEM CATEGORY DEFINITIONS AND RESPONSE REQUIREMENTS
1.0 CALL HANDLING AND ESCALATION PROCEDURES
--------------------------------------------
1.1 The following sections describe a problem reporting mechanism through which
Customer will report problems in the Product to Corsair.
1.2 To assist Customer in resolving problems, Corsair shall provide directly to
Customer information on known problems, symptoms/solutions,
bugs/fixes/patches and internal/external technical tips as they are
developed and released by Corsair engineering and/or Corsair Operations
Group.
1.3 If Corsair and Customer service representatives determine that a problem is
not solvable or disagree on the severity of the problem, then they will
escalate the problem to their appropriate managers. Both organizations
will work to identify the actions required to resolve said problems(s).
2.0 PROBLEM REPORTING
----------------------
2.1 Customer will assign a category level to each problem that it reports to
Corsair.
2.2 "Category Level 1" problems prevent installation of the Product, cause the
Product or operating system to fail completely (i.e., to be rendered
useless and unresponsive), result in irretrievable corruption or loss of
data, or cause personal injury. There is no known work-around or solution
to the problem, or a known solution cannot be quickly implemented.
2.2.1 Corsair will use its best efforts to respond to Customer within
fifteen (15) minutes following receipt of the call.
2.2.2 Corsair shall work with Customer to drive the Category to level 2,
effect a repair, or issue a mandatory Engineering Change Order
("ECO"), so that some usefulness of the system is regained. Corsair
shall use its commercially reasonable efforts to isolate, diagnose
and effect a work-around or repair. Corsair will assign an
individual to have responsibility for resolving this problem.
2.2.3 Permanent corrections will be incorporated into the next major or
minor software release of the Product.
2.2.4 When the Category has been changed to level 2, the guidelines for
resolving level 2 problems will be followed.
B-1
2.2.5 Corsair will either work around or repair, or drive to Category
Xxxxx 0, all Category Level 1 problems within 24 hours of the time
that Customer reports the problem to Corsair. If Corsair fails to do
so within this allotted time, it shall either remit to Customer, or
increase Customer's Credit Amount by, the sum of $10 per each
additional day per RFU affected by the problem.
2.3 "Category Level 2" problems prevent the use of a documented critical
function of the Product, preventing the Product from accomplishing the task
for which it was designed.
2.3.1 Corsair will respond to Customer within fifteen (15) minutes
following receipt of the call.
2.3.2 Corsair shall work with Customer to drive the Category to level 3,
effect a repair, or issue an ECO. Corsair shall use best efforts to
isolate, diagnose and effect a work-around. Corsair will assign an
individual to have responsibility to resolve this problem.
2.3.3 Permanent corrections will be incorporated in the next major or
minor software release of the Product.
2.3.4 Corsair will either work around or repair, or drive to Category
Xxxxx 0, all Category Level 2 problems within 48 hours of the time
that Customer reports the problem to Corsair (or in the case of
problems driven from Level 1 to Level 2, within 48 hours of the time
that the problem becomes a Category Level 2 problem). If Corsair
fails to do so within this allotted time, it shall either remit to
Customer, or increase Customer's Credit Amount by, the sum of $10
per day each additional day per RFU affected by the problem.
2.4 "Category Level 3" problems prevent the use of a documented function of the
Product, which is not critical to the ability of the Product to complete
the task for which it was designed. There is no known work-around or
solution to the problem.
2.4.1 Corsair will use its best efforts to respond to Customer within
fifteen (15) minutes following receipt of the call.
2.4.2 Corsair will work with Customer to verify and isolate a Category
Level 3 problem. A work-around may be provided by Corsair if
requested by Customer and known to Corsair, Corsair will use
commercially reasonable efforts to isolate, diagnose and effect a
work-around.
2.4.3 Permanent correction of the defect will be incorporated in to the
next major or minor software release of the Product.
B-2
2.4.4 Corsair will either work around or repair, all Category Xxxxx 0
problems within five days of the time that Customer reports the
problem to Corsair (or in the case of problems driven from Category
Xxxxx 0 to Category Level 3, within five days of the time that the
problem becomes a Category Level 3 problem). If Corsair fails to do
so within this allotted time,, it shall either remit to Customer, or
increase Customer's Credit Amount by, the sum of $10 per each
additional day per RFU affected by the Problem.
2.5 The sum of all payments or credits to Customer pursuant to Sections 2.2.5,
2.3.4 and 2.4.4, shall not exceed, on an annual basis, the total amount
billed to Customer pursuant to Sections 2.2(d) and 2.4(c) of the Agreement.
3.0 RECORDS
------------
Corsair will maintain a record of, and provide monthly status reports with
respect to, all submitted problem reports and will keep track of the
Corsair and Customer actions taken toward problem resolution.
B-3
SCHEDULE C
----------
CORSAIR TRAINING COURSES
MAINTENANCE TRAINING COURSES 8 HRS, 6 STUDENTS
The key objectives of this course are to train the students to:
. recognize the difference between normal and degraded operation of an RFU
. recognize unit faults
. relate system faults to major subassemblies
. remove and replace each major subassembly
Cost: $600 plus materials and travel and lodging expenses for one (1) Corsair
trainer.
INSTALLATION TRAINING COURSES 8 HRS, 6 STUDENTS
The key objectives of this course are to train the students to:
. receive and unpack equipment
. inspect equipment
. locate external connection points
. position and fasten components and connect power and signal cables
. perform site commissioning to ensure that the RFU is installed and
integrated into the cell site
Cost: $600 plus materials and travel and lodging expenses for one (1) Corsair
trainer.
FRAUD OPERATIONS TRAINING COURSE 8 HRS, 6 STUDENTS
The key objectives of this course are to train the students to:
. use fraud analysis subsystem
. use report generation subsystem
. use PhonePrint system configuration and optimization
. view RFU fraud detection activity
. use custom interface
Cost: $600 plus materials and travel and lodging expenses for one (1) Corsair
trainer.
SCC OPERATION TRAINING COURSE 8 HRS, 6 STUDENTS
The key objectives of this course are to train the students to:
. have working knowledge of PhonePrint system and SCC operation
. perform system maintenance: backups, troubleshooting, start and stop
system
. perform system administration and directory and file structures
Cost: $600 plus materials and travel and lodging expenses for one (1) Corsair
trainer.
C-1
SCHEDULE D
----------
ENVIRONMENTAL CONDITIONS
1) Maximum Humidity 75%
2) Operating Temperature: MAXIMUM: 40 degrees Celsius
MINIMUM: 10 degrees Celsius
D-1
SCHEDULE E
----------
PRODUCT MAINTENANCE SCHEDULE
RFU MAINTENANCE SCHEDULE
Diagnostic checks are performed on the RFU remotely from the SCC to insure that
the RFU is configured properly and operating within its specified requirements.
RFU preventive maintenance should occur once every 6 months and is limited to
inspection of the unit. Preventive maintenance consists of the following:
. Visual inspection of the RFU cabinet for physical damage
. Inspection and cleaning of the air filter at the rear of each unit
. Checking cables at the rear of the RFU to insure that all connections are
solid and secure
. Checking the operation of the air circulation fans and hard disk drive
within the unit by listening for unusual noises
. Visual inspection of all lights and indicators on the front of the RFU to
insure that they are operating as specified
SCC MAINTENANCE
SCC Maintenance is 24 x 7 support coverage with four (4) hour on-site support
coverage.
E-1
SCHEDULE 8
----------
FORM OF PRESS RELEASE
INTENTIONALLY OMITTED
8-1
SCHEDULE 9
----------
NEW SOFTWARE RELEASE SCHEDULE
TO BE PROVIDED BY CUSTOMER
9-1
SCHEDULE 10
-----------
SCC COMMISSIONING PROCESS
TO BE PROVIDED BY CUSTOMER
10-1
SCHEDULE 11
-----------
PRICE AND PAYMENT TERMS
This schedule sets forth in a simplified manner the pricing for the Initial
Order and each Supplemental Order purchased by Customer from Corsair.
Notwithstanding the prices set forth on this Schedule, the prices and payment
terms with respect to all Supplemental Orders shall be governed exclusively by
Section 2.3 of this Agreement.
The pricing of Supplemental Orders are as follows:
I. RFUs: Each RFU shall be priced at $20,000; provided, however,
---- -------- -------
that after two Markets have purchased at least an aggregate of 150 RFUs, the
price of each subsequent RFU shall be $17,500.
Payment Terms for RFU(s)
------------------------
(1) One hundred percent (100%) shall be invoiced upon the Delivery
Date of each RFU.
(2) All invoices shall be payable net 30 days.
II. SCC(s): Each SCC shall be priced at not more than $77,500, with the
------
exact price determined based upon the number of RFUs the SCC is designed to
support.
Payment Terms for SCC
---------------------
(1) One hundred percent (100%) shall be invoiced following the
completion by Corsair of the commissioning process set forth in
Schedule 10 hereto.
(2) All invoices shall be payable net 30 days.
III. Customer Interface Server. Each Customer Interface Server shall be
-------------------------
priced at $15,000.
Payment Terms for Customer Interface Server
-------------------------------------------
(1) One hundred percent (100%) shall be invoiced upon the Delivery
Date of each Customer Interface Server.
(2) All invoices shall be payable net 30 days.
IV. Support Services: Customer shall pay to Corsair annually during the
----------------
term of this Agreement, in consideration of the support services set forth in
Article VII of this Agreement, an amount equal to $1250 (or a greater amount
agreed upon by the parties) for each RFU purchased (or a greater amount agreed
upon by the parties) from Corsair.
11-1
Payment Terms for Support Services
----------------------------------
(1) Annual payment for the following year in advance on each
Effective Date and each anniversary thereof.
(2) Initial pro-rated annual payment upon Delivery Date with respect
to each RFU.
(3) All invoices shall be payable net 30 days.
V. Software License Fees: Customer shall pay to Corsair annually during
---------------------
the term of this Agreement, in consideration of the license granted by Corsair
in Section 6.3 of this Agreement, an amount equal to $2500 for each RFU (or
$1750 for each RFU following the second anniversary of the purchase of such
RFU). Customer's software license fees pursuant to Section 2.3 shall be limited
to $400,000 per annum during each year during the term of this Agreement.
Payment Terms for License Fees
------------------------------
(1) Annual payment for the following year in advance on the Effective
Date and each anniversary of the Effective Date.
(2) Initial pro-rated annual payment upon Delivery Date with respect
to each RFU.
11-2
SCHEDULE 12
-----------
SCC COMMISSIONING PROCESS
TO BE PROVIDED BY CUSTOMER
12-1
