NETWORK PRODUCTS PURCHASE AGREEMENT
Northern Telecom Inc., a Delaware corporation having offices at 0000 Xxxxxxxx
Xxxx., Xxxxxxxxxx, Xxxxx 00000-0000 ("Nortel") and Startec Global Communications
Corporation, a Maryland corporation, having its principal offices and place of
business at 00000 Xxxxx Xxxx Xxxxx Xxxxx 000, Xxxxxxxx, XX 00000 ("Buyer") agree
as follows:
1. SCOPE
1.1 Certain terms used in this Agreement shall be defined as set
forth in Exhibit A.
1.2 The terms and conditions of this Agreement shall apply to the
purchase by Buyer and the sale by Nortel of Equipment and
Services and the licensing of Software furnished in
connection with such Equipment. The terms and conditions
contained in a Product Attachment shall modify and/or
supplement the other terms and conditions of this Agreement,
only with respect to the Product Line and Services described
in the Product Attachment.
1.3 All Products. and Services obtained by Buyer pursuant to this
Agreement shall be obtained by Buyer solely for initial use
by Buyer in its internal business to provide services
available through its networks, and not as stock in trade or
inventory which is intended for resale by Buyer to any third
party as new and unused material. All such Products shall be
installed in the United States.
2. TERM
2.1 This Agreement shall be in effect during the period that any
Product Attachment is in effect. Each Product Attachment
shall be in effect during its Product Attachment Term. This
Agreement or any part thereof may be terminated in accordance
with the express provisions of this Agreement concerning
termination or by written agreement of the parties.
2.2 The termination of this Agreement or any part thereof shall
not affect the obligations of either party thereunder which
have not been fully performed with respect to any accepted
Order, unless such Order is expressly terminated in
accordance with this Agreement or by written agreement of the
parties.
3. ORDERING
All purchases pursuant to this Agreement shall be made by means of
Orders issued from time to time by Buyer and accepted by Nortel in
writing within fifteen (15) days. Otherwise, any such Order shall be
deemed to be void. All
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Orders shall reference this Agreement and the applicable Product
Attachment and shall be governed solely by the terms and conditions
set forth herein as modified and/or supplemented pursuant to Section
1.2 by the terms and conditions of any applicable Product Attachments.
4. PRICES
4.1 The prices, charges, and fees applicable to Orders shall be
set forth in the appropriate Product Attachments and may be
revised in accordance with the provisions stated therein.
Buyer shall pay transportation charges, including insurance,
in accordance with the applicable Product Attachment.
4.2 Until the total of all prices, charges and fees for Products
and related Services furnished hereunder shall have been paid
to Nortel, Buyer shall cooperate with Nortel in perfecting
Nortel's purchase money security interest in such Products
and Buyer shall promptly execute all documents and take all
actions required by Nortel in connection therewith. Buyer
shall not sell, lease or otherwise transfer such Products or
any portion thereof or allow any liens or encumbrances to
attach to such Products or any portion thereof prior to
payment in full to Nortel of the total of all such prices,
charges, and fees.
5. TERMS OF PAYMENT
5.1 The amounts payable for Products and/or Services may be
invoiced by Nortel to Buyer in accordance with the applicable
Product Attachments. All amounts payable and properly
invoiced pursuant to this Agreement shall be paid by Buyer to
Nortel within thirty (30) days from the date of Nortel's
invoice in accordance with the payment instructions contained
in such invoice.
5.2 Overdue payments, excluding those which are the subject of a
good faith dispute, shall be subject to interest charges,
calculated daily commencing on the 31st day after the date of
the invoice, at one and one half percent (1- 1/2%) per month
or such lesser rate as may be the maximum permissible rate
under applicable law.
6. TAXES
Buyer shall at Nortel's direction promptly pay to Nortel or pay
directly to the applicable government or taxing authority, if
requested by Nortel, all taxes and charges, including, without
limitation, penalties and interest, which may be imposed by any
federal, state, or local governmental or taxing authority arising
hereunder, such as, but not limited to all such taxes and charges
relating to the (degree) purchase, license, ownership, possession,
use, operation and/or relocation of any
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Equipment, Software, or Services furnished by Seller pursuant to this
Agreement, excluding, however, all taxes computed upon the net income
of Nortel. Buyer's obligations pursuant to this Section 6 shall
survive any termination of this Agreement.
7. RISK OF LOSS, TITLE
7.1 Risk of loss or dam. age to Products shall pass to Buyer upon
delivery to the loading dock at the installation site or
other delivery location specified by Buyer in its Order, and
Buyer shall keep such Products fully insured for the total
amount then due Nortel for such Products.
7.2 Good title to Equipment furnished hereunder which shall be
free and clear of all liens and encumbrances shall vest in
Buyer upon full payment by Buyer of the total prices, charges
and fees payable by Buyer for such Equipment and any related
Software or Services furnished by Nortel in connection with
such Equipment.
7.3 Buyer shall receive a license to use Software subject to the
terms set forth in Exhibit B.
8. TESTING, TURNOVER AND ACCEPTANCE
8.1 If Nortel installs any Products furnished hereunder, the
rights and obligations of the parties with respect to
testing, turnover and acceptance of such Products shall be as
set forth in the applicable Product Attachment.
8.2 If Nortel does not install Products furnished hereunder,
Nortel shall prior to delivery of the Products perform such
factory tests as Nortel determines to be appropriate in order
to confirm that such Products shall be in accordance with the
applicable Specifications. Buyer shall be deemed to have
accepted the Products upon completion of such tests.
8.3 In the event that Buyer places Products into
revenue-generating service, such Products shall be deemed to
have been accepted by Buyer without limitation or
restriction.
9. DISCLAIMERS OF WARRANTIES AND REMEDIES
THE WARRANTIES AND REMEDIES SET FORTH IN EXHIBIT D AND IN ANY PRODUCT
ATTACHMENT CONSTITUTE THE ONLY WARRANTIES OF NORTEL WITH RESPECT TO
THE PRODUCTS AND SERVICES AND BUYER'S EXCLUSIVE REMEDIES IN THE EVENT
SUCH WARRANTIES ARE BREACHED. THEY ARE IN LIEU OF ALL OTHER
WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING,
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WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NORTEL SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, BEFORE OR AFTER THE
PLACING OF ANY PRODUCT INTO SERVICE.
10. LIABILITY FOR BODILY INJURY, PROPERTY DAMAGE AND PATENT
INFRINGEMENT
10.1 A party hereto shall defend the other party against any suit,
claim, or proceeding brought against the other party for
direct damages due to bodily injuries (including death) or
damage to tangible property which allegedly result from the
negligence or willful misconduct of the defending party in
the performance of this Agreement. The defending party shall
pay all litigation costs, reasonable attorney's fees,
settlement payments and such direct damages awarded or
resulting from any such suit, claim or proceeding.
10.2 Nortel shall defend Buyer against any suit, claim or
proceeding brought against Buyer alleging that any Products,
excluding Vendor Items, furnished hereunder infringe any
United States patent. Nortel shall pay all litigation costs,
reasonable attorney's fees, settlement payments and any
damages awarded or resulting from any such suit, claim or
proceeding. With respect to Vendor Items, Nortel shall assign
any rights with respect to infringement of US patents granted
to Nortel by the supplier of such Vendor Items to the extent
of Nortel's right to do so.
10.3 The party entitled to defense pursuant to Section 10.1 or
10.2 shall promptly advise the party required to provide such
defense of the applicable suit, claim, or proceeding and
shall cooperate with such party in the defense or settlement
thereof. The party required to provide such defense shall
have sole control of the defense of the applicable suit,
claim, or proceeding and of all negotiations for its
settlement or compromise.
10.4 If an injunction is obtained against Buyer's use of any
Products as a result of any suit, claim, or proceeding
described in Section 10.2, Nortel shall at Nortel's option
use its reasonable efforts to either:
10.4.1 procure for Buyer the right to continue using the
portions of the Products enjoined from use; or
10.4.2 replace or modify the same with equivalent or better
Products so that Buyer's use is not subject to any
such injunction.
10.5 If Nortel cannot perform under Section 10.4.1 or 10.4.2,
Buyer shall have the right to return the infringing Products
to Nortel upon written notice to
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Nortel, and in the event of such return, neither party shall
have any further liabilities or obligations under this
Agreement on account of such infringement or return, except
Nortel shall refund the depreciated value of such Products
carried on Buyer's books at the time of such return, less any
outstanding monies due Nortel hereunder.
10.6 The obligations of Nortel hereunder with respect to any suit,
claim, or proceeding described in Section 10.2 shall not
apply with respect to Products which are (a) manufactured or
supplied by Nortel in accordance with any design or any
special instruction furnished by Buyer, (b) used by Buyer in
a manner or for a purpose not contemplated by this Agreement,
(c) located by Buyer outside the United States, or (d)used by
Buyer in combination with other products not provided by
Nortel, including, without limitation, any software developed
solely by Buyer through the permitted use of Products
furnished hereunder, provided the infringement arises from
such combination or the use thereof. Buyer shall indemnify
and hold Nortel harmless against any loss, cost, expense,
damage, settlement or other liability, including, but not
limited to, attorneys' fees, which may be incurred by Nortel
with respect to any suit, claim, or proceeding described in
this Section 10.6.
10.7 Notwithstanding the above, Nortel shall have no obligation or
liability with regard to any patent infringement suit, claim,
or proceeding that may be made or brought against Buyer (i)
alleging that method of use claims in such patent are
infringed by any service offering and/or by any use by Buyer
of Products furnished hereunder to make such service offering
available or (ii) resulting in a settlement payment, or award
of damages, or accounting of profits, where such settlement,
award, or accounting is based on the revenues or profits
earned or other value obtained by Buyer from its use of such
Products and/or is based on the lost revenues or profits of
third parties arising from Buyer's use of such Products.
10.8 If Nortel determines that any Products are or may become the
subject of a suit, claim, or proceeding as described in
Section 10.7, Nortel may provide Buyer with notice to that
effect. Nortel shall have no liability to Buyer pursuant to
Section 10.2, 10.4, or 10.5 with respect to Buyer's use of
such Products which occurs subsequent to such notice. In
addition to its obligations pursuant to Section 10.3, if
Buyer becomes aware that any Products may become the subject
of any such suit, claim, or proceeding before receiving any
such notice from Nortel, Buyer shall provide Nortel with
notice to that effect.
10.9 After receipt of notice from Nortel pursuant to Section 10.8,
Buyer shall have the option to return to Nortel the
applicable Products identified in such notice and Nortel
shall refund the depreciated value (as carried on the books
of Buyer) of the returned Products to Buyer as more fully set
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forth in Section 10.5.
10.10 The provisions of Sections 10.2 through 10.9 state the entire
liability of Nortel and its suppliers and the exclusive
remedy of Buyer with respect to any suits, claims, or
proceedings of the nature described in Section 10.2.
10.11 Each party's respective obligations pursuant to this Section
shall survive any termination of this Agreement.
11. REMEDIES AND LIMITATION OF LIABILITY
11.1 Nortel shall have the right to suspend its performance by
written notice to Buyer and forthwith remove and take
possession of all Products that shall have been delivered to
Buyer, if, prior to payment to Nortel of any amounts due
pursuant to this Agreement with respect to such Products,
Buyer shall (a) become insolvent or bankrupt or cease, be
unable, or admit in writing its inability, to pay all debts
as they mature, or make a general assignment for the benefit
of, or enter into any arrangement with, creditors, (b)
authorize, apply for, or consent to the appointment of, a
receiver, trustee, or liquidator of all or a substantial part
of its assets or have proceedings seeking such appointment
commenced against it which are not terminated within ninety
(90) days of such commencement, or (c) file a voluntary
petition under any bankruptcy or insolvency law or under the
reorganization or arrangement provisions of the United States
Bankruptcy Code or any similar law of any jurisdiction or
have proceedings under any such law instituted against it
which are not terminated within ninety (90) days of such
commencement.
11.2 In the event of any material breach of this Agreement which
shall continue for thirty (30) or more days after written
notice of such breach (including a reasonably detailed
statement of the nature of such breach) shall have been given
to the breaching party by the aggrieved party, the aggrieved
party shall be entitled at its option to avail itself of any
and all remedies available at law or equity, except as
otherwise provided in this Agreement.
11.3 Nothing contained in Section 11.2 or elsewhere in this
Agreement shall make Nortel liable for any incidental,
indirect, consequential or special damages of any nature
whatsoever for any breach of this Agreement whether the
claims for such damages arise in tort, contract, or
otherwise, or shall increase the liability of Nortel under
Section 9 or 10 or Exhibit D beyond that prescribed therein.
11.4 Nortel shall not be liable for any additional costs,
expenses, losses or damages resulting from errors, acts or
omissions of Buyer, including, but not limited to,
inaccuracy, incompleteness or untimeliness in the provision
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of information by Buyer to Nortel or fulfillment by Buyer of
any of its obligations under this Agreement. Buyer shall pay
Nortel the amount of any such costs, expenses, losses or
damage incurred by Nortel.
11.5 Any action for breach of this Agreement or to enforce any
right hereunder shall be commenced within two (2) years after
the cause of action accrues or it shall be deemed waived and
barred, except any action for nonpayment by Buyer of any
prices, charges, or fees payable here. under may be brought
by Nortel at any time permitted by applicable law.
11.6 The limitations on Nortel's liability and other obligations
set forth in Sections 9, 10, and 11 shall survive any
termination of this Agreement.
12. FORCE MAJEURE
If the performance by a party of any of its obligations under this
Agreement shall be interfered with by reason of any circumstances
beyond the reasonable control of that party, including without
limitation, unavailability of supplies or sources of energy, power
failure, breakdown of machinery, or labor difficulties, including
without limitation, strikes, slowdowns, picketing or boycotts, then
that party shall be excused from such performance for a period equal
to the delay resulting from the applicable circumstances and such
additional period as may be reasonably necessary to allow that party
to resume its performance. With respect to labor difficulties as
described above, a party shall not be obligated to accede to any
demands being made by employees or other personnel.
13. CONFIDENTIAL INFORMATION
13.1 Each party which receives the other party's Confidential
Information shall use reasonable care to hold such
Confidential Information in confidence and not disclose such
Confidential Information to anyone other than to its
employees and employees of its affiliates with a need to
know. A party that receives the other party's Confidential
Information shall not reproduce .such Confidential
Information, except to the extent reasonably required for the
performance of its obligations pursuant to this Agreement and
in connection with any permitted use of such Confidential
Information.
13.2 Buyer shall take reasonable care to use Nortel's Confidential
Information only for study, operating, or maintenance
purposes in connection with Buyer's use of Products furnished
by Nortel pursuant to this Agreement.
13.3 Nortel shall take reasonable care to use Buyer's Confidential
Information only to perform Nortel's obligations to provide
Products and/or Services to Buyer, provided Nortel may use
any of Buyer's Confidential Information for the development,
manufacture, marketing and
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maintenance of new products and/or services and/or changes
or modifications to the existing Products and/or Services,
which Nortel may, in either case, provide to third parties
without restriction.
13.4 The obligations of either party pursuant to this Section 13
shall not extend to any Confidential Information which
recipient can demonstrate through written documentation was
already known to the recipient prior to its disclosure to the
recipient, was known or generally available to the public at
the time of disclosure' to the recipient, becomes known or
generally available to the public (other than by act of the
recipient) subsequent to its disclosure to the recipient, is
disclosed or made available in writing to the recipient by a
third party having a bona fide right to do so, or is required
to be disclosed by process of law, provided that the
recipient shall notify the disclosing party promptly upon any
request or demand for such disclosure.
13.5 The parties' obligations pursuant to this Section 13 shall
survive any termination of this Agreement.
14. BUYER'S RESPONSIBILITIES
14.1 All sites at which the Products shall be delivered or
installed shall be prepared by Buyer in accordance with
Nortel's standards, including, without limitation,
environmental requirements.
14.2 Buyer shall provide Nortel-designated personnel access to the
Products during the times deemed necessary by Nortel to
install, maintain and service the Products in accordance with
Nortel's obligations. Nortel personnel shall comply with
Buyer's reasonable site and security regulations, provided
Nortel receives written notice of any such regulations
reasonably in advance of the arrival of Nortel's personnel at
the site.
14.3 Buyer shall provide reasonable working space and facilities,
including heat, light, ventilation, telephones, electrical
current, trash removal and other necessary utilities for use
by Nortel-designated maintenance personnel, and adequate
secure storage space, if required by Nortel, for Products and
materials. Buyer shall also provide adequate security for the
Products while on Buyer's site.
14.4 Buyer shall obtain all necessary governmental permits
applicable to Buyer in connection with the installation,
operation, and maintenance of Products furnished hereunder,
excluding any applicable permits required in the normal
course of Nortel's doing business.
14.5 Any information which Nortel reasonably requests from Buyer
and which
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is necessary for Nortel to properly install or maintain the
Products shall be provided by Buyer to Nortel in a timely
fashion and in a form reasonably specified by Nortel.
15. HAZARDOUS MATERIALS
15.1 Prior to issuing any Order for Services to be performed at
Buyer's facilities, Buyer shall identify and notify Nortel in
writing of the existence of all Hazardous Materials which
Nortel may encounter during the performance of such Services,
including, without limitation, any Hazardous Materials
contained within any equipment to be removed by Nortel.
15.2 If Buyer breaches its obligations pursuant to Section 15.1,
(a) Nortel may discontinue the performance of the appropriate
Services until all the applicable Hazardous Materials have
been removed or abated to Nortel's satisfaction by Buyer at
Buyer's sole expense, and (b) Buyer shall defend, indemnify
and hold Nortel harmless from any and all damages, claims,
losses, liabilities and expenses, including, without
limitation, attorneys' fees, which arise out of Buyer's
breach of such obligations. Buyer's obligations pursuant to
this Section 15.2 shall survive any termination of this
Agreement.
16. SUBCONTRACTING
Nortel may subcontract any of its obligations under this Agreement, but
no such subcontract shall relieve Nortel of primary responsibility for
performance of its obligations.
17. REGULATORY COMPLIANCE
In the event of any change in the Specifications or Nortel's
manufacturing or delivery processes for any Products as a result of the
imposition of requirements by any government, Nortel may upon notice to
Buyer, increase its prices, charges and fees to cover the added costs
and expenses directly and indirectly incurred by Nortel as a result of
such change.
18. GENERAL
18.1 If any of the provisions of this Agreement shall be invalid
or unenforceable under applicable law and a party deems such
provisions to be material, that party may terminate this
Agreement upon notice to the other .party. Otherwise, such
invalidity or unenforceability shall not invalidate or render
this Agreement unenforceable, but this Agreement shall be
construed as if not containing the particular invalid or
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unenforceable provision and the rights and obligations of
the parties shall be construed and enforced accordingly.
18.2 A party shall not release without the prior written approval
of the other party any advertising or other publicity
relating to this Agreement wherein such other party may
reasonably be identified. In addition each party shall take
reasonable precautions to keep the existence and the contents
of this Agreement confidential so long as this Agreement
remains in effect and for a period of three (3) years
thereafter, except as may be reasonably required to enforce
this Agreement or by law.
18.3 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the State of North
Carolina, except for its rules with respect to the conflict
of laws.
18.4 Neither party may assign or transfer this Agreement or any of
its rights hereunder without the prior written consent of the
other party, such consent not to be unreasonably withheld,
except Buyer's consent shall not be required for any
assignment or transfer by Nortel (a) to any Affiliate of all
or any part of this Agreement or of Nortel's rights
hereunder, or (b) to any third party of Nortel's right to
receive any monies which may become due to Nortel pursuant to
this Agreement.
18.5 Notices and other communications.
18.5.1 Notices and other communications shall be transmitted
in writing by certified United States Mail, postage prepaid,
return receipt requested, by guaranteed overnight delivery,
or by facsimile addressed to the parties as follows:
To Buyer: Startec
Global Communications Corp.
00000 Xxxxx Xxxx Xxxxx,
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
To Nortel: Northern Telecom Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: Vice President Carrier Networks
Facsimile: (000) 000-0000
In addition, notices submitted by Buyer to Nortel specific to any
Product Attachment shall be delivered to the address stated in the
applicable Product Attachment along with a copy submitted to Nortel at
the address stated above.
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Any notice or communication sent under this Agreement shall
be deemed given upon receipt, as evidenced by the United
States Postal Service return receipt Mail if given by
certified United States Mail, on the following business day
if sent by guaranteed overnight delivery, or on the
transmission date if given by facsimile during the receiving
party's normal business hours.
The address information listed for a party in this Section or
any Product Attachment may be changed from time to time by
that party by giving notice to the other as provided above.
18.6 In the event of a conflict between the provisions of this
Agreement which are not contained in a Product Attachment and
the provisions of a Product Attachment, the provisions of the
Product Attachment shall prevail with respect to the Product
Line and Services described in that Product Attachment.
18.7 All headings used herein are for index and reference purposes
only, and shall not be given any substantive effect. This
Agreement .has been created jointly by the parties, and no
rule of construction requiring interpretation against the
drafter of this Agreement shall apply in its interpretation.
18.8 Buyer shall not export any technical data received from
Nortel pursuant to this Agreement, or release any such
technical data with the knowledge or intent that such
technical data will be exported or transmitted to any country
or to foreign nationals of any country, except in accordance
with applicable US law concerning the exporting of such
technical data. Buyer shall obtain all authorizations from
the US government in accordance with applicable law prior to
exporting or transmitting any such technical data as
described above.
18.9 Any changes to this Agreement may only be effected if agreed
upon in writing by duly authorized representatives of the
parties hereto. No agency, partnership, joint venture, or
other similar business relationship shall be or is created by
this Agreement.
18.10 This Agreement, including all Product Attachments and
Exhibits constitutes the entire agreement of the parties with
respect to the subject matter hereof.
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NORTHERN TELECOM INC. STARTEC GLOBAL
COMMUNICATIONS CORP.
(Signature)
Page 12
NORTHERN TELECOM INC. STARTEC GLOBAL
COMMUNICATIONS CORP.
Name: Name:
(Print) (Print)
Title: Title:
Date: Date:
EXHIBIT A
DEFINITIONS
As used in the Agreement (as defined below), the following initially capitalized
terms shall have the following meanings:
"Affiliate" shall mean Nortel's parent corporation, Northern Telecom Limited and
any corporation controlled directly or indirectly by Northern Telecom Limited
through the ownership or control of shares or other securities in such
corporation.
"Agreement" shall mean the Agreement to which this Exhibit is attached, and all
Exhibits and Product Attachments.
"Confidential Information" shall mean all information, including, without
limitation, specifications, drawings, documentation, know-how and pricing
information, of every kind or description which may be disclosed by either party
or an Affiliate to the other party in connection with this Agreement, provided
the disclosing party shall clearly xxxx any such information which is disclosed
in writing as the confidential property of the disclosing party and the
disclosing party shall identify the confidential nature of any such information
which it orally discloses at the time of such disclosure and shall provide a
written summary of the orally disclosed information to the recipient within
fifteen (15) days of such disclosure.
"Equipment" shall mean the hardware listed or otherwise identified in, or
pursuant to, any Product Attachment.
"Exhibits" shall mean Exhibits A, B, C, and D attached hereto, and any
additional Exhibits which Nortel and Buyer subsequently agree in writing shall
be incorporated into, and made a part of the Agreement by reference.
"Hazardous Materials" shall mean any pollutants or dangerous, toxic or hazardous
substances (including, without limitation, asbestos) as defined in, or pursuant
to, the OSHA Hazard Communication Standard (29 CFR Part 1910, Subpart Z), the
Resource Conservation and Recovery Act of 1976 (42 USC Section 6901, et seq.),
the Toxic Substances Control Act (15 USC Section 2601, et seq.), the
Comprehensive Environmental Response Compensation and Liability Act (42 USC
Section 9601, et seq.), and any other federal, state or local environmental law,
ordinance, rule or regulation.
"Order" shall mean a written purchase order issued by Buyer to Nortel. Each
Order shall specify on the face of the Order the types and quantities of
Products and/or Services to be furnished by Nortel pursuant to the Order, the
applicable prices, charges and/or fees with respect to such Products and/or
Services,
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Buyer's facility to which the Products are to be delivered, the delivery and/or
completion schedule, and any other information which may be required to be
included in an Order in accordance with the provisions of this Agreement.
"Product Attachments" shall mean any Product Attachments which the parties'
agree in writing shall be incorporated into, and made a part of, this Agreement.
"Product Attachment Term" shall mean the period specified in a Product
Attachment during which that Product Attachment shall be in effect.
"Product Line" shall mean the Products described in and which may be furnished
pursuant to a specific Product Attachment.
"Products" shall mean any Equipment and/or Software which may be provided under
this Agreement.
"Services" shall mean all services listed or otherwise identified in, or
pursuant to, any Product Attachment which may be purchased from or provided by
Nortel and which are associated with the Product Line described in that Product
Attachment.
"Software" shall mean (a) programs in machine-readable code or firmware which
(i) are owned by, or licensed to, Nortel or any of its Affiliates, (ii) reside
in Equipment memories, tapes, disks or other media, and (iii) provide basic
logic operating instructions and user-related application instructions, and (b)
documentation associated with any such programs which may be furnished by Nortel
to Buyer from time to time.
"Specifications" shall mean, with respect to any Product Line, the
specifications identified in the applicable Product Attachment, provided Nortel
shall have the right at its sole discretion to modify, change or amend such
specifications at any time.
"Third Party Software Vendor" shall mean any supplier of programs contained in
the Software which is not an Affiliate.
"Vendor Items" shall mean, with respect to a Product Line, those portions of the
Product which are identified in the applicable Product Attachment as Vendor
Items.
"Warranty Period" shall mean, with respect to a Product Line, the Warranty
Period specified in the applicable Product Attachment.
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EXHIBIT B
SOFTWARE LICENSE
1. Buyer acknowledges that the Software may contain programs which have
been supplied by, and are proprietary to, Third Party Software
Vendors. In addition to the terms and conditions herein, Buyer shall
abide by any additional terms and conditions provided by Nortel to
Buyer with respect to any Software provided' by any Third Party
Software Vendor.
2. Upon Buyer's payment to Nortel of the applicable fees with respect to
any Software furnished to Buyer pursuant to this Agreement, Buyer
shall be granted a personal, non-exclusive, paid-up license to use the
version of the Software furnished to Buyer only in conjunction with
Buyer's use of the Equipment with respect to which such Software was
furnished for the life of that Equipment as it may be repaired or
modified. Buyer shall be granted no title or ownership rights to the
Software, which rights shall remain in Nortel or its suppliers.
3. As a condition precedent to this license and to the supply of Software
by Nortel pursuant to the Agreement, Nortel requires Buyer to give
proper assurances to Nortel for the protection of the Software.
Accordingly, all Software supplied by Nortel under or in
implementation of the Agreement shall be treated by Buyer as the
exclusive property, and as proprietary and a TRADE SECRET, of Nortel
and/or its suppliers, as appropriate, and Buyer shall: a) hold the
Software, including, without limitation, any methods or concepts
utilized therein in confidence for the benefit of Nortel and/or its
suppliers, as appropriate; b) not provide or make the Software
available to any person except to its employees on a 'need to know'
basis; c)not reproduce, copy, or modify the Software in whole or in
part except as authorized by Nortel; d)not attempt to decompile,
reverse engineer, disassemble, reverse translate, or in any other
manner decode the Software; e) issue adequate instructions to all
persons, and take all actions reasonably necessary to satisfy Buyer's
obligations under this license; and f) forthwith return to Nortel, or
with Nortel's consent destroy, any magnetic tape, disc, semiconductor
device or other memory device or system and/or documentation or other
material, including, but not limited to all printed material furnished
by Nortel to Buyer which shall be replaced, modified or updated.
4. The obligations of Buyer hereunder shall not extend to any information
or data relating to the Software which is now available to the general
public or becomes available by reason of acts or failures to act not
attributable to Buyer.
5. Buyer shall not assign this license or sublicense any rights herein
granted '
Page 2
to any other party without Nortel's prior written consent.
6. Buyer shall indemnify and hold Nortel and its suppliers, as
appropriate, harmless from any loss or damage resulting from a breach
of this Exhibit B. The obligations of Buyer under this Exhibit B shall
survive the termination of the Agreement and shall continue if the
Software is removed from service.
EXHIBIT C
STORAGE
If Buyer notifies Nortel prior to the scheduled shipment date of Products that
Buyer does not wish to receive such Products on the date agreed by the parties,
or the installation site or other delivery location is not prepared in
sufficient time for Nortel to make delivery in accordance with such date, or
Buyer fails to take delivery of any portion of such Products, Nortel may place
the applicable Products in storage, such storage facilities to be mutually
agreed to by the parties. In that event Buyer shall be liable for all additional
costs thereby incurred by Nortel. Delivery by Nortel of any Products to a
storage location as provided above shall be deemed to constitute delivery of the
Products to Buyer for purposes of this Agreement, including, Without limitation,
provisions for the commencement of the payment, invoicing and Warranty Periods
and the passage of risk of loss, pursuant to Nortel's standard shipment,
turnover and acceptance intervals beginning with the date of delivery originally
agreed upon by the parties as a starting point.
EXHIBIT D
LIMITED WARRANTIES AND REMEDIES
1. Nortel warrants that the Equipment supplied hereunder will under
normal use and service be free from defective material and faulty
workmanship and will conform to the applicable Specifications for the
Warranty Period specified in the Product Attachment with respect to
such Equipment. The foregoing warranty shall not apply to items
normally consumed in operation, such as, but not limited to, lamps and
fuses or to Vendor Items. Any installation Services performed by
Nortel with respect to such Equipment shall be free from defects in
workmanship for the Warranty Period set forth in the applicable
Product Attachment.
2. Nortel's sole obligation and Buyer's exclusive remedy under the
warranty set forth in Section 1 above shall be limited to the
replacement or repair, at Nortel's option and expense, of the
defective Equipment, or correction of the defective installation
Services. Replacement Equipment may be new or reconditioned at
Nortel's option.
3. Nortel warrants that any Software licensed by Nortel to Buyer under
this Agreement shall function during the Warranty Period of the
Equipment with respect to which such Software is furnished without any
material, service affecting nonconformance to the applicable
Specifications, provided that Buyer shall have paid all Software
support fees specified in the applicable Product Attachment. If the
Software fails to so function, Buyer's sole remedy and Nortel's sole
obligation under this warranty is for Nortel to correct such failure
through, at Nortel's option, the replacement or modification of the
Software or such other actions as Nortel reasonably determines to be
appropriate.
4. Unless otherwise stated in a Product Attachment, (a) Nortel's
warranties in Section 3 above shall only apply to the portion of the
Software actually developed by Nortel or its Affiliates, (b) all other
Software shall be provided by Nortel "AS IS", (c) Nortel shall assign
to Buyer on a nonexclusive basis any warranty on such other Software
provided to Nortel by the developer of such other Software to the
extent of Nortel's legal right to do so.
5. The obligations and remedies set forth in Sections 1, 2, and 3 above
shall be conditional upon: the Equipment not having been altered or
repaired, the Software not having been modified, and the Products not
having been installed outside the United States; any defect or
nonconformance not being the result of mishandling, abuse, misuse,
improper storage, improper performance of installation, other
services, maintenance or operation by other than Nortel (including use
in conjunction with any product which is incompatible with the
applicable Equipment or Software or of inferior performance), and/or
any error, act, or omission of Buyer described in Section 11.4; the
Product not having been
Page 2
damaged by fire, explosion, power failure, power surge, or other power
irregularity, lightning, failure to comply with all applicable
environmental requirements for the Products specified by Nortel or any
other applicable supplier, such as but not limited to temperature or
humidity ranges, or any act of God, nature or public enemy; and
written notice of the defect having been given to Nortel within the
applicable Warranty Period.
6. The performance by Nortel of any of its obligations described in
Section 2 or 3 of this Exhibit D shall not extend the applicable
Warranty Period except to the extent specified in the applicable
Product Attachment.
7. Upon expiration of the applicable Warranty Period for Equipment
furnished hereunder, repair and replacement Service for such Equipment
shall be available to Buyer from Nortel in accordance with Nortel's
then-current terms, conditions and prices. Such repair and replacement
Service and notice of any discontinuance of such repair and
replacement Service shall be available for a minimum period set forth
in the Product Attachment applicable to such Equipment. This provision
shall survive the expiration of this Agreement.
8. Unless Nortel elects to repair or replace defective Equipment at
Buyer's facility, all Equipment to be repaired or replaced, whether in
or out of warranty, shall be packed by Buyer in accordance with
Nortel's instructions stated in the applicable Product Attachment and
shipped at Buyer's expense and risk of loss to a location designated
by Nortel. Replacement Equipment shall be returned to Buyer at
Nortel's expense and risk of loss. Buyer shall ship the defective
Equipment to Nortel within thirty (30) days of receipt of the
replacement Equipment. In the event Nortel fails to receive such
defective Equipment within such thirty (30) day period, Nortel shall
invoice Buyer for the replacement Equipment at the then current price
in effect therefor.
9. With respect to any Vendor Item furnished by Nortel to Buyer pursuant
to this Agreement, Nortel shall assign to Buyer on a nonexclusive
basis any warranty granted by the party that supplied such Vendor Item
to Nortel to the extent of Nortel's right to do so.
10. Neither Nortel nor Nortel's suppliers, as appropriate, shall have any
responsibility for warranties offered by Buyer to any of its
customers. Buyer shall indemnify Nortel and Nortel's suppliers, as
appropriate, with respect thereto.
PRODUCT ATTACHMENT
CARRIER NETWORKS PRODUCTS
Northern Telecom Inc. ("Nortel") and Startec Global Communications
Corp. ("Buyer") agree as follows:
1. INCORPORATION BY REFERENCE
This Product Attachment shall be incorporated into and made a
part of Network Products Purchase Agreement No.
NPA199712-STI-CN-BB between Nortel and Buyer.
2. DEFINITIONS
For purposes of this Product Attachment:
"Acceptance Criteria" shall mean, with respect to any Products
installed by Nortel hereunder, the standards and
specifications contained in the Nortel Installation Manuals
which are applicable to such Products.
"Equipment" shall mean the equipment listed in Schedule A.
"Extension" shall mean Equipment and/or Software which Nortel
engineers and installs and which is added to an Initial System
after the Turnover Date of the Initial System.
"Initial System" shall mean the Equipment and Software which
is included in any configuration identified in Schedule A as
an "Initial System."
"Installation Site" shall mean Buyer's facility identified in
an Order to which the applicable Products identified in such
Order shall be delivered or at which the applicable Services,
if any, are to be performed, respectively.
"Merchandise" shall mean any Equipment which is not part of a
System and with respect to which no engineering or
installation Services shall be provided by Nortel.
"Product Attachment Term" shall mean the period which shall
commence on the date this Product Attachment is executed by
the latter of the parties and shall expire twelve (12) months
thereafter.
"Services" shall mean the services described in Schedule B.
"Software" shall mean the software listed in Schedule A.
Page 2
"Specifications" shall mean with respect to any Products
furnished hereunder, the specifications published by Nortel
which Nortel identifies as its standard performance
specifications for such Products as of the date of Buyer's
Order for such Products.
"System" shall mean any Initial System or Extension.
"Turnover Date" shall mean, with respect to any Products
installed by Nortel hereunder, the date on which Nortel
provides the Turnover Notice to Buyer pursuant to Section 8.a
of this Product Attachment.
"Warranty Period" shall mean, with respect to:
(a) Any System, the period which shall commence upon the
Acceptance Date with respect to such System and shall expire
twelve (12) months thereafter,
(b) Merchandise, the period which shall commence upon the date of
shipment with respect to such Merchandise by Nortel to Buyer
and shall expire ninety (90) days thereafter,
(c) Installation Services involving any System, the period which
shall commence upon the Turnover Date with respect to such
System and shall expire twelve (12) months thereafter,
(d) Equipment which is repaired or replaced pursuant to Nortel's
obligations under Exhibit D to the Agreement, the period
commencing five (5) days after (i) shipment of the replacement
Equipment to Buyer or (ii) completion of the repair at the
Installation Site of the applicable Equipment and which shall
expire on the later of thirty (30) days thereafter or the last
day of the original Warranty Period with respect to the
Equipment which was repaired or replaced, and
(e) Software which was corrected pursuant to Nortel's obligations
under Exhibit D to the Agreement, the period commencing upon
delivery of the corrected Software by Nortel to Buyer and
expiring on the later of thirty (30) days thereafter or the
last day of the original Warranty Period with respect to such
Software.
Page 3
3. SCOPE
a. Nortel agrees to sell to Buyer, subject to Buyer first purchasing
Nortel's DMS 300/250 Certification as set forth and as priced in
Schedule A, Exhibit 1 (2.0) as follows:
DMS 300/250 Certification with GCAR0002 software upgrade, and
Buyer agrees to purchase and/or license, as applicable, and take
delivery of one set of the Products as described in Schedule A,
Exhibit 2 as follows:
DMS 300/250 Standard and Optional Software
at the prices set forth in Schedule A, Exhibit 1 (2.4). Buyer
acknowledges that the prices set forth in Schedule A, Exhibit 1
(2.4) are discounted prices based upon Buyer's commitment to
purchase Products as set forth in Section 3.c., and that Buyer's
failure to meet the commitment therein will require Buyer to pay
the additional amount set forth in Section 3.d. in refund of the
discount.
b. Nortel shall not have any responsibilities or obligations with
regard to the Buyer's existing DMS-300/250 (currently at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx), and the Warranty provisions
set forth herein in this Agreement and in the Network Product
Purchase Agreement shall not commence, until such time when the
Buyer's existing DMS-300/250 has successfully completed the
Certification process described in the attached Schedule A,
Exhibit 1 (2.1). Buyer shall pay the prices, fees and charges set
forth in the attached Schedule A, Exhibit 1 (2.4), for the
Certification in accordance with Section 7 of this Product
Attachment. Upon the successful completion of the Certification,
Nortel shall certify that the Buyer's existing DMS-300/250 system
is eligible for support by Nortel, consisting of either the
services offered by Nortel under its Extended Service Plan or
preventative or remedial maintenance on a time and material
basis.
c. During the Product Attachment Term, Buyer commits to purchase
and/or license, as applicable, and take delivery of the Products
as described in Schedule A, Exhibit 1 (1.0) as follows:
DMS 300/250 Initial System and Power for the DMS 300/250 Initial
System at the prices set forth in Schedule A, Exhibit 1 (1.0).
d. In the event that Buyer does not satisfy the commitment under
Section 3.c. of this Product Attachment, Nortel shall invoice
Buyer and Buyer agrees to pay the amount of One Hundred Eighty
Three Thousand One Hundred Eight
Page 4
Dollars ($183,108) for the discounted portion of the Software
purchased pursuant to this Product Attachment and described in
Schedule A, Exhibit 2 of this Product Attachment.
e. Buyer agrees to provide to Nortel, at Buyer's own expense and
during the term of this Product Attachment, the Central Control
Complex (Core) of Buyer's DMS NT-40 System. ,Upon receipt by
Nortel at a site designated by Nortel of the Central Control
Complex (Core) of Buyer's DMS NT-40 System Nortel agrees to
provide Buyer with credit of One Hundred Twenty Thousand Dollars
($120,000) that may only be used towards the purchase of the
Products set forth in Section 3.c. above.
4. SCHEDULES
The following Schedules which are attached hereto are an integral part
of the Product Attachment and are incorporated herein by reference:
Schedule A Products, Prices, and Fees
Schedule B Services and Charges
Schedule C Delivery
Schedule D - Documentation
5. ORDERING
With respect to Section 3, ORDERING of the Agreement the following
additional terms shall apply:
a. Buyer shall identify in each Order for Products whether the
Products constitute an Initial System, Extension, or Merchandise.
All Orders for Extensions, Merchandise, or any Services other
than engineering and installation Services provided by Nortel in
connection with an Order for an Initial System shall be subject
to written agreement of Buyer and Nortel on the applicable
prices, charges and fees with respect thereto as required
pursuant to Section 6, PRICING, of this Product Attachment.
b. Notwithstanding Exhibit C to the Agreement, Buyer may by written
notice to Nortel cancel without charge any Order for Products
and/or Services prior to the delivery date of the applicable
Products set forth in such Order or the agreed date for the
commencement by Nortel of the applicable Services ("Service
Commencement Date"), except that if Buyer cancels such Order
within six (6) weeks or less of any such date, a cancellation fee
of fifteen percent (15%) of the aggregate price of all Products
and/or Services included in such cancelled Order shall be payable
by Buyer. Nortel may invoice such amount upon receipt of Buyer's
notice of cancellation of the Order.
Page 5
c. Notwithstanding Exhibit C to the Agreement, Buyer may by written
notice to Nortel not less than six (6) weeks prior to the
delivery date of any Products set forth in an Order and/or the
Service Commencement Date of the applicable Services, delay the
delivery date of such Products and/or the Service Commencement
Date of such Services for a period which shall not exceed ninety
(90) days from the date such Products were originally scheduled
to be delivered or ninety (90) days from the Service Commencement
Date, subject to the availability from Nortel of the applicable
Products and/or Services after such period of delay.
d. Except as set forth in Sections 5.b. and 5.c. of this Product
Attachment, any change to an Order after Nortel's acceptance of
such Order shall require written agreement of Nortel and Buyer
upon a written change to the Order ("Change Order") which shall
reference the original Order and be executed by the parties. No
such changes shall be implemented until the applicable Change
Order has been executed by the parties.
e. With respect to each Order for Products which is accepted by
Nortel, Buyer may make a written request at least ninety (90)
days prior to the scheduled shipment date of such Products for a
change ("Change") consisting of certain addition(s) or
deletion(s) to such Products. After receipt of such request,
Nortel shall submit a Job Change Order ("JCO") to Buyer for
Buyer's approval with respect to the requested Change, except
that Nortel shall be under no obligation to submit such JCO to
Buyer if Nortel determines that the Price applicable to such
Order would be reduced by more than ten percent (10%) as a result
of the implementation of the Change. Each JCO shall state whether
the requested Change shall increase or decrease the Price and/or
time required by Nortel for any aspect of its performance under
the Agreement with respect to such Order. Buyer shall accept or
reject the JCO in writing within ten (10) days of receipt
thereof. Failure of the Buyer to accept or reject the JCO in
writing as described above shall be deemed a rejection of the JCO
by Buyer. In the event an accepted JCO involves the return to
Nortel of any Equipment which shall have been previously
delivered to Buyer, Nortel may invoice and Buyer shall pay the
transportation costs and Nortel's then- current restocking charge
for the returned Equipment.
f. Any increase or decrease in the Price with respect to an Order
hereunder which is occasioned by an accepted JCO shall be added
to or subtracted from, as applicable, the amount of the last
payment due pursuant to Section 6 with respect to such Order.
g. If Buyer rejects a proposed JCO, then the rights and obligations
of the parties with respect to the applicable Order shall not be
subject to Buyer's requested Changes, provided that Buyer shall
promptly pay to Nortel all of Nortel's additional costs and
expenses incurred hereunder in accordance with Buyer's
Page 6
requested Changes and Nortel's additional costs and expenses
subsequently incurred in order that Nortel may be able to perform
Nortel's obligations without modification by the requested
Changes, and Nortel shall be entitled to an extension of the
dates for performance of its obligations with respect to the
applicable Order as a result of any delays in such performance
which result from the foregoing.
6. PRICING
With respect to Section 4, PRICES of the Agreement, the following
additional terms shall apply:
a. The prices set forth in Schedule A with respect to any Initial
System shall be in effect for a period which shall commence upon
the effective date of this Product Attachment and shall expire
after six (6) months. Nortel may in its sole discretion,
thereafter, increase any prices set forth in Schedule A upon
sixty (60) days prior written notice to Buyer. The prices listed
in Schedule A shall apply to any Order for an Initial System
listed in Schedule A which shall be received by Nortel prior to
the effective date of any change in such prices as permitted by
this Section, provided that delivery date for such Initial System
as set forth in the applicable Order shall be not more than
one-hundred twenty (120) days after Nortel's acceptance of such
Orders.
b. The prices for Equipment and the fees for the right to use the
Software included in any Extension, prices for any Merchandise,
and charges for any Services, other than engineering and
installation Services provided with any Initial System shall be
as subsequently agreed in writing by Nortel and Buyer.
c. All transportation charges associated with the shipment of the
Products to Buyer for delivery are included in the prices, fees
and charges set-forth in the attached Schedule A.
7. TERMS OF PAYMENT
With respect to Section 5, TERMS OF PAYMENT, the following additional
terms shall apply:
a. With respect to each Initial System furnished hereunder by Nortel
to Buyer the price listed in Schedule A shall be invoiced by
Nortel in accordance with the following schedule:
(i) Twenty percent (20%) of such price may be invoiced upon
Nortel's acceptance of the Order for such Initial System,
Page 7
(ii) Fifty percent (50%) of such price may be invoiced on the
date of shipment by Nortel to Buyer of the switch
component of such Initial System,
(iii) Twenty percent (20%) of such price may be invoiced on the
Turnover Date of such Initial System, and
(iv) Ten percent (10%) of such price may be invoiced on the
date of Acceptance of such Initial System.
b. With respect to each Extension furnished hereunder by Nortel to
Buyer, the applicable price determined in accordance with Section
6.b. of this Product Attachment shall be invoiced by Nortel in
accordance with the following schedule:
(i) Twenty percent (20%) of such price may be invoiced upon
Nortel's acceptance of the Order for such Extension,
(ii) Fifty percent (50%) of such price may be invoiced on the
date of shipment by Nortel to Buyer of the Equipment
included in such Extension,
(iii) Twenty percent (20%) of such price may be invoiced on the
Turnover Date with respect to such Extension, and
(iv) Ten percent (10%) of such price may be invoiced on the
date of Acceptance of such Extension.
c. With respect to each DMS 300/250 Certification furnished
hereunder by Nortel to Buyer, the price listed in Schedule A
shall be invoiced by Nortel in accordance with the following
schedule:
(i) One hundred percent (100%) of such price may be invoiced
upon Nortel's acceptance of the Order for such
Certification.
d. Notwithstanding Section 7.b., with respect to each GCAR0002
Software Upgrade furnished hereunder in conjunction with
DMS-300/250 Certification by Nortel to Buyer, the price listed in
Schedule A shall be invoiced by Nortel in accordance with the
following schedule:
(i) One hundred percent (100%) of such price may be invoiced
upon Nortel's delivery of such Software to Buyer.
e. Except as may be otherwise agreed in. writing by the parties
Nortel's prices for Merchandise and charges for any Services
determined in accordance with
Page 8
Section 6.b. above may be respectively invoiced upon delivery of
such Merchandise and upon performance of such Services by Nortel.
8. TESTING, TURNOVER, AND ACCEPTANCE
Pursuant to Section 8.1 of the Agreement, the rights and obligations of
the parties with respect to testing, turnover and acceptance of any
Products o furnished hereunder and installed by Nortel shall be as
follows:
a. Nortel shall provide Buyer with five (5) days written notice
prior to commencing final commissioning and testing of any
Products installed by Nortel. Buyer shall cause an authorized
representative of Buyer to be present at the applicable
Installation Site to witness such final commissioning and
testing, provided that in the event such representative fails to
be present for any reason, Nortel shall not be required to delay
performance of such final commissioning and testing. In
connection with the final commissioning and testing of such
Products, Nortel shall test the Products for conformity with the
applicable Acceptance Criteria. When such tests have been
successfully completed, Nortel shall provide Buyer with written
notice ("Turnover Notice") that the applicable Products meet such
Acceptance Criteria and are ready for Buyer's testing for
compliance with such Acceptance Criteria. Buyer shall promptly
complete and return to Nortel Buyer's acknowledgment of receipt
of such Turnover Notice.
b. Following the Turnover Date, Buyer may test the applicable
Products for compliance with the Acceptance Criteria using the
tests and test procedures contained in Nortel's Installation
Manuals with respect to such Products. Within thirty (30) days
following the Turnover Date of the applicable Products, Buyer
shall notify Nortel either that Buyer has accepted such Products
in writing using Nortel's standard Acceptance Notice form or that
Buyer has not accepted such Products in which case Buyer shall
also provide Nortel with a written notice ("Notice of
Deficiency") which shall provide in reasonable detail the manner
in which Buyer asserts that the Products failed to meet the
Acceptance Criteria. With respect to any such details with which
Nortel agrees, Nortel shall promptly proceed to take appropriate
corrective action and following correction, Buyer may retest the
Products in accordance with this Section. Buyer shall accept the
Products in writing without delay when the tests pursuant to this
Section indicate that the Products comply with the Acceptance
Criteria.
c. With respect to any points of disagreement between Nortel and
Buyer concerning any Notice of Deficiency which are not resolved
by Nortel and Buyer within ten (10) days after the effective date
of the Notice of Deficiency, Buyer, at its option, may waive any
rights it may have on account of any such
Page 9
points of disagreement, or require that the disputed points be
resolved by arbitration.
d. Buyer shall notify Nortel in writing of its election pursuant to
Section 8.c. not later than ten (10) days after the effective
date of the Notice of Deficiency, if any, given to Nortel by
Buyer. Upon expiration of such ten (10) day period unless Buyer
has notified Nortel to the contrary, Buyer shall be deemed to
have elected to waive its right with respect to any points of
disagreement then existing between it and Nortel with respect to
such Notice of Deficiency.
e. If Buyer makes timely election to require arbitration of such
disputed points, the arbitrator shall be chosen by mutual
agreement. If the parties cannot agree upon an arbitrator within
three (3) days of Buyer's election to arbitrate, each party shall
within three (3) days thereafter select an independent and an
unaffiliated person to be an arbitrator. These two (2) persons
selected shall select a third person, independent and
unaffiliated with either party, as a third arbitrator. The
arbitration shall be conducted in accordance with the Rules of
the American Arbitration Association, provided, however that the
Arbitrator(s) shall be empowered to reduce the Prices of Products
only to the extent that the Arbitrator(s) find that the benefit
of Buyer's bargain has been reduced. The Arbitrator(s) shall not
have any authority to grant partial or total rescission unless
the Arbitrator(s) determine that (i) Buyer has not substantially
received the benefit of its bargain; and (ii) money damages will
not provide an adequate remedy. Judgment upon the award rendered
by the Arbitrator(s) may be entered in any Court of competent
jurisdiction.
f. For purposes of this Product Attachment, "Acceptance" of the
applicable Products shall occur upon the earliest of the
following and Buyer shall upon request sign Nortel's Acceptance
Notice confirming such Acceptance without any conditions,
restrictions, or limitations of any nature whatsoever:
(i) The date on which Buyer accepts such Products pursuant to
Section 8.b. of this Product Attachment;
(ii) The failure of Buyer to provide Nortel with any notice
required by Section 8.b. of this Product Attachment, with
respect to such Products;
(iii) Use by Buyer of such Products or any portion thereof in
revenue-producing service at any time; or
(iv) Waiver by Buyer of its rights pursuant to Section 8.c. or
8.d.
g. Acceptance by Buyer of such Products pursuant to Section 8.f. of
this Product Attachment above shall not be withheld or postponed
due to.:
Page 10
(i) Deficiencies of such Products resulting from causes not
attributable to Nortel, such as, but not limited to (A)
inaccuracy of information provided by Buyer, (B)
inadequacy or deficiencies of any materials, facilities or
services provided directly or indirectly by Buyer and
tested in conjunction with the applicable Products,
(C)other conditions external to the Products which are
beyond the limits specified by Nortel in the
Specifications for the Products and which are used by
Nortel in performance calculations with respect to the
Acceptance Criteria, or (D) spurious outputs from adjacent
material; or
(ii) Minor deficiencies or shortages with respect to such
Products which are attributable to Nortel, but of a nature
that do not prevent full and efficient operation of the
Products.
h. With respect to any deficiencies of the type described in Section
8.g.(i), Nortel shall at Buyer's request and expense assist Buyer
in the elimination or minimization of any such deficiencies. With
respect to any deficiencies or shortages as described in the
Section 8.g.(ii), Nortel shall, at Nortel's expense, take prompt
and effective action to correct any such deficiencies or
shortages.
i. In the event Buyer's Acceptance of any Products is withheld or
postponed due to any deficiencies of the type described in
Section 8.g.(i), Nortel shall invoice and Buyer shall pay
Nortel's charges and reasonable expenses incurred by Nortel
associated with Nortel's investigation of the reasons for Buyer's
withholding or postponement of such Acceptance.
9. WARRANTIES AND REMEDIES
With respect to Exhibit D, LIMITED WARRANTIES AND REMEDIES, the following
additional terms shall apply:
a. Except as set forth in Section 9.b. below, Nortel shall in
performance of its obligations under Section 2 of Exhibit D to
the Agreement, (i) ship replacement Equipment or complete the
repair within thirty (30) days of Nortel's receipt of the
Equipment to be replaced or repaired, and (ii) commence the
correction of the applicable installation Services within thirty
(30) days of receipt of notice from Buyer pursuant to Section 5
of Exhibit D to the Agreement. o -
b. For emergency warranty service situations involving the
Equipment, Nortel shall during the applicable Warranty Period use
all reasonable efforts to ship replacement Equipment within
twenty-four (24) hours of notification of the applicable warranty
defect by Buyer pursuant to Section 5 of Exhibit D to the
Agreement, provided that Buyer shall have requested such
emergency service. Nortel may invoice Buyer and Buyer shall pay
Nortel's surcharge for
Page 11
emergency warranty services. If Nortel determines that due to the
particular circumstances, onsite technical assistance is
necessary, Nortel shall use all reasonable efforts to dispatch
emergency service personnel to the applicable Installation Site
within twenty-four (24) hours of receipt of notice from Buyer as
described above.
c. All Products to be repaired or replaced, both within and outside
of the applicable Warranty Period, shall be packed by Buyer in
accordance with Nortel's then-current instructions.
d. No later than ninety (90) days prior to the expiration of the
Warranty Period with respect to any Initial System, Nortel shall
offer to Buyer post-warranty support by means of an extended
service plan or other terms, provided that neither party shall
have any obligation with respect thereto except as may be agreed
upon in writing by the parties.
10. NOTICES
Pursuant to Section 18.5 of the Agreement, any notices by Buyer to Nortel
which are specific to this Product Attachment shall be delivered to the
following address:
Northern Telecom Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attn: Senior Manager, Contracts Management & Negotiations
11. ADDITIONAL TERMS
The following additional terms shall apply to the Agreement:
(a) With respect to Section 14, BUYER'S RESPONSIBILITIES, the
following additional terms shall apply:
(i) Buyer shall be responsible for ordering and coordinating
with each applicable local telephone company the
installation of all central office trunks and test trunks
and Buyer shall be responsible for all utility charges
associated with the installation, testing, operation and
maintenance of Products furnished hereunder, including,
but not limited to, all applicable charges for such
central office trunks, test trunks and any tie lines.
(b) Nortel shall provide documentation with respect to the Products
in accordance with Schedule D to this Product Attachment. . .
PAGE 12
STARTEC GLOBAL COMMUNICATION INC.
NORTHERN TELECOM
(Signature) (Signature)
NORTHERN TELECOM INC. STARTEC GLOBAL
COMMUNICATIONS CORP.
By:. By:
(Signature) (Signature)
Name:. Name:
(Print) (Print)
Title: Title:
Date: Date:
SCHEDULE A
PRODUCTS, PRICES AND FEES
EXHIBIT 1
NORTEL SHALL ENGINEER THE DMS-300/250 INITIAL SYSTEM PROVIDED
HEREUNDER IN ACCORDANCE WITH NORTEL'S STANDARD ENGINEERING
PRACTICES AND PROCEDURES. AFTER NORTEL HAS ENGINEERED EACH
DMS-300/250 INITIAL SYSTEM ORDERED BY BUYER HEREUNDER, NORTEL
SHALL PROVIDE BUYER WITH A DETAILED LIST OF THE COMPONENTS OF
SUCH DMS-300/250 INITIAL SYSTEM.
1.0 DMS-300/250 INITIAL SYSTEM (4800 PORT MODEL)
1.1 DMS-300/250 INITIAL SYSTEM INCLUDES:
A DMS-300/250 Initial System (4800 Port Model) shall
consists of the following configuration of major
Equipment and Software:
a ) SNSE front end, 16K Enhanced Network and other
common Equipment as follows:
o One (1) SuperNode-SE equipped with
BRISC60 processor, Message Switch, and
SLM III.
o One (1) 16K Enhanced Network to support
an Initial System wired for 4800 ports
and equipped with 4800 ports.
o One (1) LIS shelf wired for twelve (12)
LIU7's, equipped with twelve (12) LIU7
links.
o Two (2) ISME frames equipped with
service and test circuits as well as
four (4) Enhanced Digital Recorded
Announcement Machine circuit packs each
providing a maximum of four minutes of
recordable announcement time.
o Two (2) Input Output Equipment (IOE)
frames equipped with:
- > One (1) Mag Tape Device
- > Four (4) SCSI Disk Drive Units
- > Three(3) IOC Shelves -
- > Four (4) I/O Controllers -
- > Four (4) X.25 Automatic File
Transfer circuit packs
o Two (2) MIS frames equipped with
required inverts and terminal block
assemblies.
o One (1) Meridian Cabinet Spare Storage
(MCSS) cabinet to house switch spares.
o One (1) Power Distribution Center (PDC)
frames equipped with "A" and "B" feed
fuse panels & fuses as required.
Page 2
o Miscellaneous Switch Room Equipment as follows:
- > One (1) Maintenance Administration Positions & MAP Furniture
- > Two (2) UDS 2440 Modems
- > Two (2) RTIF Terminals
- > One (1) MAP Printers
- > One (1) Helmsman Workstation and CD-ROM documentation disk
b) SuperNode Line and Trunk configurable equipment as follows:
o Five (5) DTEI frames wired for 4800 DS-0 ports equipped with
the following: - > Thirty Eight Hundred (3840) DS-0 SS7 ports
-> Nine Hundred and Sixty (960) DS-0 interworking ports.
o Note: Four thousand eight hundred (4800) DS-0 ports are wired
with Continuity Tone Detectors for SS7 and STRs for
reorigination.
o One (1) PDTE frame wired for 960 DS-0 ports equipped with the
following: -> Nine Hundred Sixty (960) DS-0 E1 ports
c) DMS-300/250 Standard Software Features as set forth in Exhibit 2
Section 2 of' Schedule A.
d) Nortel's standard complement of switch spares.
1.2 DMS-300/250 INITIAL SYSTEM (4800 PORT MODEL) Pricing
The firm price for the DMS-300/250 (4800 DS-0 Port Model) is One
Million Six Hundred Twelve Thousand Seven Hundred Forty Four Dollars
($1,612,744).
1.3 Power for the Initial System (4800 Port Model)
The price for the power plant with four(4) hour battery backup to
support the DMS~ 300/250 (4800 DS-0 Port Model) is Seventy Three
Thousand Five Hundred Eighty Six
Dollars ($73,586)..
1.4 Training for the Initial System (4800 Port MODEL)
One Hundred (100) days of training will be included for no additional
charge with the purchase of the DMS-300/250 (4800 DS-0 Port Model).
1.5 Post Cut-Over Support for the Initial System (4800 Port Model).
With the purchase of the Initial DMS-300/250 4800 Port Module Switch
System, Nortel will make available to the buyer Post Cut-Over Support
of six (6) weeks or 240 Manned Hours. This Service includes "Switch
Grooming" and "Feature and Call Through Testing" support. Nortel will
assign one (1) resource per Initial switch site, that will be available
during normal business hours (08:00AM-05:00PM, local time, Monday
through Friday, with one hour for lunch, except Nortel holiday). Post
Cut-over Support typically commence one (1) week prior to K Date and
consists of a six week effort.
Page 3
2.0 DMS-300/250 Certification with GCAR0002 software upgrade.
With respect to the DMS-300/250 System equipment which Buyer obtained
from a source other than Nortel, Nortel shall not assume any support
obligations with respect thereto until such time as said DMS-300/250
System (currently at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx),
successfully passes Nortel's certification process ("Certification").
2.1 DMS-300/250 Certification
The Certification includes Nortel's performance of a certification
audit of the referenced DMS-300/250 System equipment. Buyer is
responsible for the purchase of additional Equipment and /or licensing
of additional Software as may be required in order to meet the
Certification requirements.
The Certification will include, but not be limited to, the following:
a. Visual Inspection:
o Proper grounding
o Proper installation
b. Verification of Equipment and Software to determine if:
o Customer furnished equipment is in a fully
supportable configuration .........
o Circuit packs are at the current baseline
o Software is either within two (2) releases
of Nortel's current release on a SuperNode
or at BCS35 on a NT40
c. Testing, per Nortel's standards, only on a system not
in service:
o Peripheral Module (PM) diagnostics
o Power verification tests
o Traffic Simulation test (ICTS or ESIT)
d. Quality control Process Inspection Procedure and
e. Completion of Nortel's Switch Configuration
Control/Extended Product Inventory Control
Worksheets.
Upon successful completion of the Certification, Nortel shall certify that the
DMS-300/250 system is eligible for support by Nortel consisting of either the
services offered by Nortel under its Extended Service Plan, or preventive or
remedial maintenance on a time and material basis.
2.2 GCAR0002 Software Upgrade
GCAR0002 Standard Software Features as set forth in Exhibit 2
Section 3 of Schedule A.
2.3 Training
Fifty (50) days of training will be included with the purchase of
the certification and GCAR0002 software.
2.4 Certification with GCAR0002 Software Package Pricing
Page 4
The firm price for the Certification with GCAR0002 software is
Nine Hundred Thirty One Thousand Seven Hundred Seventy Seven
Dollars ($931,777). This price includes a One Hundred and Twenty
Thousand Dollar ($120,000) buy back credit for NT-40 equipment,
and is contingent upon the purchase of the DMS-300/250 (4800 Port
Model).
GCAR0002 Software $896,777
DMS 300/250 Certification $35,000
3.0 Fully Wired and Fully Equipped DTEI Port Extension
3.1 DTEI Port Extension Fully Wired and Fully Equipped
All prices for DTEI Port Extensions include the following and are
sold in minimum increments of nine hundred sixty (960) DS-0
ports, configured for SS7/PTS or ISDN signaling at Buyer's
request:
a) DTEI hardware and XPM+;
b) Either UTR, STR, CTD for OTCs configured for SS7 or
PTS capability, or UTR and ISDN pre-processor
circuit packs configured for ISDN PRI capability;
c) Any required 16K ENET expansion or MS expansions,
d) Any required Service/Test Circuits;
e) Any required Power Distribution Center (PDC)
Equipment;
f) Optional DTEI Equipment as outlined in 1.2 below at
defined pricing levels; and
g) Spare circuit packs, if required, based on Nortel's
standard engineering sparing guidelines.
3.2 DTEI Port Extension Prices
Trunk Type Extension Price
PRI Long Distance Trunking Port $268/DS-0 port
SS7 Trunking Port $194/DS-0 port
a) Pricing for DTEI Port Extensions excludes software
license fees.
3.3 DTEI Optional Equipment
3.3.1 Dialable Wideband
Nortel shall provide two (2) NTAX78AA circuit packs per DTC
instead of the standard timeswitch circuit packs on new DTEI Port
Extensions for an incremental price of Five Thousand Dollars
($5,000.00) per DTC or Ten Thousand Dollars ($10,000.00) per DTEI
START HERE
Page 5
frame. Additional spare, if required, is Two Thousand Five
Hundred Dollars ($2,500) per circuit pack.
3.3.2 Echo Cancellation
The incremental price to upgrade to the NT6X50EC circuit
pack-from the standard NT6X50AB circuit pack, prior to delivery,
shall be Seventy Dollars ($70.00) per port sold in 48 port
increments for Three Thousand Three Hundred Sixty Dollars
($3,360.00) each.
4.0 Fully Wired and Fully Equipped PDTC Port Extension
4.1 PDTC Port Extension Fully Wired and Fully Equipped
All prices for PDTC Port Extensions include the following and are
sold in minimum increments of nine hundred sixty (960) E1 ports:
a) PDTC hardware and XPM+;
b) Any required 16K ENET or MS
expansions,
c) Any required Service/Test Circuits;
d) Any required Power Distribution Center (PDC) Equipment;
e) Spare circuit packs, if required, based on Nortel's standard
engineering sparing guidelines.
4.2 PDTC Port Extension Prices
Trunk Type Extension Price
E1Trunking Port $228/port
a) Pricing for PDTC Port Extensions excludes software license
fees.
5.0 Add-On Port Pricing
5.1 Add-On SS7 & PRI Ports for Initial Systems Purchased under this
Agreement
In the event Buyer includes an Order for additional ports
("Add-On Ports") with Buyer's Order for the DMS-300/250 Initial
System described in Part I, Section 1.0, Buyer shall purchase
such Add-On Ports in minimum increments of nine hundred sixty
(960) Add-On Ports per DMS-300/250 Initial System. The below
listed Add-On Port price includes engineering, installation and
Equipment. In the event Buyer purchases Add-On Parts in
increments of less than nine hundred sixty (960) Add-On Ports per
DMS-300/250 Initial System, the prices for such Add-On Ports
shall be at Nortel's then current prices:
Trunk Type "Add-On" Price
SS7 Trunking Por S128/port '
Page 6
PRI Long Distance Trunking Port $179/port
5.2 Add-On E-1 Ports for Initial Systems Purchased under this
Agreement
In the event Buyer includes an Order for E-1 ports Add-On Ports
("E-1 Ports") to be installed in an DMS-300/250 Initial System
purchased under this Agreement prior to Turnover date or includes
such an order with its Order for any Initial System described in
this Agreement, Buyer shall purchase such E-1 Ports in minimum
increments of nine hundred sixty (960) E-1 Ports per Initial
System and pay the purchase price set forth below. The price
includes engineering, installation and/ or testing associated
with E-1 Ports. In the event Buyer purchases E-1 Ports In
increments of less than nine hundred sixty (960) per Initial
System, the prices for such Add-On Ports shall be at Nortel's
then current prices.
Trunk Type "Add-On" Price
Add-On E-1 Ports $151/port
6.0 DMS-300/250 SYSTEM UPGRADE PRICING
6.1 DMS-300/250 SNSE System Upgrade to DMS-300/250 SN
In the event Buyer wishes to upgrade from a DMS-300/250 SuperNode
SE to a DMS-300/250 SuperNode, the price is Five Hundred Seventy
Five Thousand Dollars ($575,000.00)
Page 7
SCHEDULE A
PRODUCTS, PRICES AND FEES
EXHIBIT 2
1.0 DMS-300/250 STANDARD SOFTWARE FEATURES
1.1 Nortel may deliver Software ordered hereunder in a single
Software load which may include Software which Buyer has not
yet licensed ("Non-Licensed Software"). Except as set forth in
Section 1.2 below, Buyer shall not be entitled to use such
Non-licensed Software, until such time as the applicable right
to use fees are paid by Buyer pursuant to Section 1.5.
1.2 For the purpose of gathering market trial information and
prior to payment of any applicable right-to-use fees, certain
Non-licensed Software may be placed in service by Buyer on a
limited, non-revenue-generating, trial basis only ("Feature
Trial"). Buyer may request the right to evaluate such
Non-licensed Software for a maximum period of six (6) months
commencing as of the date of Nortel's written consent to such'
Feature Trial. Nortel shall respond to Buyer's request as
described above in writing. ' ........ Within ten (10)
business days following expiration of the agreed to Feature
Trial period, Buyer shall notify Nortel in writing of its
plans for activation or deactivation of such Non-licensed
Software, and the corresponding number of units activated, i f
applicable.
1.3 Upon Buyer's placement of any Non-licensed Software
in-service, Buyer shall pay the applicable right-to-use fees
for such Non-licensed Software pursuant to this Agreement,
except as described in Section 1.2. Buyer shall also have the
option to pay the applicable right-to-use fees for any
Non-licensed Software upon installation of a Software load
containing such Non-licensed Software. For any Non-licensed
Software that is installed and added pursuant to a product
computing module load ("PCL") and or non-computing module load
("NCL"), if any, the right-to-use fees shall be the list price
for such feature in effect as of the date of activation.
1.4 To ensure Buyer's proper activation and/or usage of the
appropriate Software, Buyer shall properly notify Nortel at
the address specified in Section 9 of this Product Attachment
to the attention of Director, Sales Engineering, prior to the
activation and/or usage by Buyer of any Software. Buyer shall
identify all Software being activated and/or used (including
the number of units activated, if applicable) in each Initial
System.
1.5 Nortel shall promptly review notification from Buyer provided
pursuant to Section 1.4 above and identify any applicable
prerequisite Equipment or Software required by Buyer prior to
activation and/or usage of the applicable Software. Nortel
shall respond to Buyer's written notice by means of a price
quotation. Such price quotation shall include Nortel's consent
to activate and/or use such Software or notification that such
Software requires engineering to determine whether the current
switch configuration will require additional Equipment prior
to activation and/or usage.. Upon Buyer's written acceptance
of Nortel's price quotation, Nortel shall grant its consent to
Page 8
Buyer to activate and/or use such Software prior to payment of
the applicable right-to-use fees. However, under no
circumstances shall such Software be activated and/or used by
Buyer prior to Buyer's acceptance of Nortel's price quotation.
Nortel shall invoice Buyer for all applicable right to use
fees and associated feature 'activation engineering charges.
One hundred percent (100%) of such invoiced right to use fees
and engineering charges shall be due and payable within thirty
(30) days of the date of Nortel's invoice therefor.
1.6 Notwithstanding the foregoing, Buyer shall not be required to
pay additional right to use fees associated with the Software
licensed prior to the initial date of this Product Attachment.
1.7 Nortel reserves the right, every six (6) months to submit a
written report for each site containing a Software load. The
written report shall identify all Software activated and/or
used (including the number of incremental units activated, if
applicable) by Buyer during the applicable reporting period.
Buyer shall audit the report against Purchase Order(s) which
have been submitted by Buyer and accepted by Nortel during the
applicable period to determine the existence of any
discrepancies. Buyer shall submit such audited written report
to Nortel at the address specified in Section 9 of this
Product Attachment to the attention of Director, Sales
Engineering, within thirty (30) days from receipt of such
request.
1.8 Nortel also reserves the right to access by remote polling or
to .conduct an on-site inspection of any site in which a
Software load is installed and/or to perform an on-site review
of Buyer's books and records related to such site to verify
activation and/or usage of Software.
1.9 Nortel shall issue invoices, for any applicable prices,
charges or fees, in addition to those amounts previously
invoiced, as a result of Buyer's activation and/or usage of
any Software that does not appear on Nortel's written report
or that appear as a result of Nortel's remote polling of an
Initial Systems.
1.10 Upon payment of the applicable fight to use fees for Software
activated and/or used by Buyer, Buyer shall receive a
non-exclusive paid-up license to use such Software in
accordance with the provisions of this Agreement. Nortel may
immediately terminate the applicable license granted hereunder
for Buyer's failure to pay the applicable fight to use fees
for such Software which has been activated and/or used.
1.11 The obligations of Buyer under this Section ! shall without
limitation survive the termination of this Agreement and shall
continue if the Software is removed from service. Buyer agrees
to indemnify Nortel or Third Party Software Vendors as
appropriate for any loss or damage resulting from a breach of
this Section 1.
Page 9
2.0 GCAR0002 Software included in the DMS-300/250 Initial System
The following represents the GCAR0002 Software packages that
are included in the price of the DMS-250/300 Initial System
(4800 Port Model) The following is a list of Software only and
does not include any/all required Equipment to provide feature
functionality
2.1 CARRIER BASE S/W
FEATURE/PACKAGE DESCRIPTION
--------------- -----------
BASE0001 Base
BASE0008 Base SNSE Series 60 Processor
XXXX0000 XXXX XXX Xxxx
XXX00000 TEL Telecom Layer
TEL00008 TEL CCS7 Base
TEL00003 TEL Gateway Screening
UCSB0001 UCSB UCS Base
ISDN0001 ISDN Platform Supt DMS250
N00R0001 In-switch N00/NXX Service
N00R0002 N00R N00/NXX TCAP Service
NSER0001 NSER Network Services
NSER0002 NSER TCAP Auth & Acct Validation
UTRS0001 UTRS UCS Trans & Routing
GATE0016 DCME Control
GATE0017 GATE0 GWECHO
GATE0018 N5 Digital
GATE0041 TS 16 Control of Echo Cancellers
GATE0042 GATE0 ISUP92
GATE0048 GATE0 EARLYACM
Page 10
3.0 GCAR0002 Software included in the Software Upgrade
The following represents the GCAR0002 Software packages that
are included in the price of the Certification with GCAR0002
software upgrade. The following is a list of Software only and
does not include any/all required Equipment to provide feature
functionality..
3.1 CARRIER BASE S/W
Feature/Package Description
--------------- -----------
BASE0001 Base
BASE0006 Base SN Series 60 Processor
XXXX0000 XXXX XXX Xxxx
XXX00000 TEL Telecom Layer
TEL00008 TEL CCS7 Base
TEL00003 TEL Gateway Screening
UCSB0001 UCSB UCS Base
ISDN0001 ISDN Platform Supt DMS250
N00R0001 In-switch N00/NXX Service
N00R0002 N00R N00/NXX TCAP Service
NSER0001 NSER Network Services
NSER0002 NSER TCAP Auth & Acct Validation
UTRS0001 UTRS UCS Trans & Routing
GATE0016 DCME Control
GATE0017 GATE0 GWECHO
GATE0018 N5 Digital
GATE0041 TS 16 Control of Echo Cancellers
GATE0042 GATE0 ISUP92
GATE0048 GATE0 EARLYACM
Page 1
4.0 DMS-300/250 Optional Software
4.1 GCAR0002 Optional Software to the DMS-300/250 System
The following represents the GCAR0002 Optional Software packages that
are not included in the price of the DMS-300/250 Initial System (4800
Port Model) or the GCAR0002 software upgrade, as defined in Schedule A,
Part I, of this Product Attachment. The following Software represents
those feature packages that may be ordered by Buyer at an additional
price for a DMS-300/250 Initial System and does not include any and/or
all required Equipment to provide feature functionality.
Order Code Description List Price
---------- ----------- ----------
GATE0001 GATE0 ANSI7PLUS $485,000
GATE0010 GATE0 AUTOSERV See Note The fee is $90,000
for U.S. applications.
The fee is $145,000
for U.K. applications
GATE0038 GATE0 DSTOMPEG $75,000
GATE0013 XXXX0 XXX000 $265,000
XXXX0000 XXXX0 XXXX0 $125,000 No cost if BAB
patches were
licensed
GATE0027 GATE0 ISDNRTE $120,000
GATE0044 GATE0 RCVDCL I $65,000
GATE0024 GATE0 SERVSCRN $220,000
GATE0039 GATE0 TCPIP $110,000
CAIN0001 XXXX Base No Charge
CAIN0500 XXXX CUSTDP Trigger $100,000
CAIN0200 XXXX Extension Parms $ 50,000
CAIN0100 XXXX Messages No Charge
CAIN0300 XXXX SCP Simulator $30,000
CAIN0501 XXXX SPECDIG Trigger $100,000
CAIN0400 XXXX Test Query Tool $30,000
CRDS0001 CRDS Card Services $120,000
CRDS0003 CRDS MVP Card $50,000
Services
CRDS0002 CRDS TCAP Card $25,000
Services
N00R0100 N00 Routing Base No Charge
NPRI0001 NPRI PRI Netwk $25,000
Interface
NSER0100 Network Services Base No Charge
NSER0003 NSER Inter/Intra IMT $50,000
PRLT0001 PRLT ISDN PRI RLT $175,000
UDWS0001 UDWS UCS Dialable $175,000
Widebnd
Page 2
SCHEDULE B
SERVICES AND CHARGES
ENGINEERING
1. Nortel shall engineer each System furnished hereunder in accordance
with Nortel's engineering practices applicable to such Initial System
at the time such engineering is performed.
2. Nortel's charges for engineering each Initial System are included in
the prices and fees for the Initial System set forth in Schedule A.
3. The provision of any other engineering by Nortel and the charges
associated therewith shall be as subsequently agreed in writing by
Nortel and Buyer.
INSTALLATION
1. Nortel shall install each Initial System furnished hereunder at the
applicable Installation Site in accordance with Nortel's installation
practices applicable to such Initial System at the time such
installation is performed.
2. Nortel's charges for performance of such installation are included in
the prices and fees for the Initial System set forth in Schedule A.
3. The provision of any other installation by Nortel and the charges
associated therewith shall be as subsequently agreed in writing by
Nortel and Buyer.
4. The parties agree to mutually coordinate the installation and testing
of the Products in a timely fashion to minimize any disruptions to the
Buyer's business activities and intereference with other contractors.
TRAINING
1. With each Initial DMS 300/250 System furnished hereunder, Nortel shall
provide to Buyer at no additional charge One Hundred (100) days of
training at a Nortel Training Center. Such training shall be in any of
the courses scheduled to be provided at that Training Center as set
forth in NTI's applicable Technical Training Course catalog with
respect to the Products described in Schedule A to this Product
Attachment.
2. Buyer shall be responsible for the payment of all travel and living
expenses of its employees whom Buyer sends to receive such training.
Page 2
3. Additional Training in such courses shall be provided by Nortel to
Buyer subject to availability and scheduling of such courses. NTI may
change the schedule of such courses at any time. Such additional
training shall be provided at NTI's then-current charges.
4. All training provided by NTI shall consist of such materials and cover
such subject as NTI in its sole discretion determines to be
appropriate. Nortel makes no representation concerning the ability of
anyone to satisfactorily complete any training.
5. Nortel may add to, or delete from, the subject matter and or medium of
any of the training courses which NTI provides. In addition, NTI may
reschedule such courses as NTI determines to be appropriate.
6. The availability of any training to Buyer as set forth above shall be
subject to any prerequisites identified by NTI in its training catalog
or other documentation with respect to such training.
ADDITIONAL SERVICES
1. All other services to be furnished hereunder shall be subject to
written agreement of the parties which shall set forth the terms and
conditions applicable to the provision of such services and a
description of such services and the charges for such services.
SCHEDULE C
DELIVERY
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SCHEDULE D
DOCUMENTATION
Certain documentation with respect to the Products shall be made available to
Buyer on CD-ROM pursuant to the terms and conditions set forth below.
In addition, Nortel may furnish to Buyer such other documentation with respect
to the Products as Nortel deems appropriate.
HELMSMAN TERMS AND CONDITIONS
1. DEFINITIONS
"CD-ROM" shall mean a compact disk with read-only memory.
"CD-ROM Software" shall mean the computer programs which provide basic logic,
operating instructions or user-related application instructions with respect to
the retrieval of CD-ROM Documentation, along with the documentation used' to
describe, maintain and use such computer programs.
"CD-ROM Documentation" shall mean the documentation that Nortel makes available
to its customers on CD-ROM with respect to XXX-000, XXX-000, XXX-000/000 and/or
DMS-STP Systems.
2. SCOPE
With the delivery of each Initial System ordered by Buyer, Nortel shall deliver
a CD-ROM on which the appropriate CD-ROM Documentation is contained and a user
manual which shall set forth the procedures by which Buyer may use the CD-ROM
Software to access to the CD-ROM Documentation.
Buyer shall be solely responsible for obtaining, at its cost and expense, any
computer or other equipment and software required to use the CD-ROM, CD-ROM
Software and/or CD-ROM Documentation.
Buyer may order additional CD-ROMs from Nortel at Nortel's then current fees
therefor, and any such additional CD-ROMs shall be subject to these terms and
conditions.
3. LICENSE
Upon delivery of the CD-ROM, Nortel shall grant to Buyer a non-exclusive,
non-transferable and non-assignable license, subject to these terms and
conditions:
Page 2
(a) to use CD-ROM Software solely to access to the CD-ROM Documentation; and
(b) to use the CD-ROM Documentation solely to operate and maintain the Initial
System with which it was delivered.
Buyer acknowledges that, as between Nortel and Buyer, Nortel retains title to
and all other rights and interest in the CD-ROM Software and CD-ROM
Documentation. Buyer shall not modify, translate or copy the CD-ROM Software or
CD-ROM Documentation without Nortel's prior written consent. Buyer shall hold
secret and not disclose to any person, except Buyer's employees with a need to
know, any of the CD-ROM Software or CD-ROM Documentation.
Buyer shall not sell, license, reproduce or otherwise convey or directly or
indirectly allow access to the CD-ROM Software or CD- ROM Documentation to any
other person, firm, corporation or other entity.
Except to the extent expressly set forth in this Schedule D, Nortel shall have
no obligations of any nature whatsoever with respect to the CD-ROM Software or
the CD-ROM Documentation.
4. DISCLAIMER OF WARRANTY AND LIABILITY
NORTEL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER WITH
RESPECT TO THE CD-ROM, CD-ROM SOFTWARE, CD-ROM DOCUMENTATION OR ANY INFORMATION
CONTAINED ON ANY OF THE FOREGOING OR ANY RESULTS OR CONCLUSIONS REACHED BY BUYER
AS A RESULT OF ACCESS TO OR USE THEREOF, OR WITH RESPECT TO ANY OTHER MATTER OR
SERVICE PROVIDED BY NORTEL, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR AGAINST INFRINGEMENT. NORTEL SHALL NOT BE LIABLE FOR ANY DIRECT,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER
INCLUDING ANY SUCH DAMAGES WHICH MAY ARISE OUT OF THE USE OF OR INABILITY TO USE
OR ACCESS THE CD-ROM, THE CD-ROM SOFTWARE, THE CD-ROM DOCUMENTATION, AND FURTHER
INCLUDING LOSS OF USE, REVENUE, PROFITS OR ANTICIPATED SAVINGS REGARDLESS OF HOW
SUCH DAMAGES MAY HAVE BEEN CAUSED.
5. GENERAL
Nothing contained in this Schedule D shall limit, in any manner, Nortel's right
to change the CD-ROM Software or CD-ROM Documentation or the design or
characteristics of Nortel's Products at any time without notice and without
liability.
