Network Product Purchase Agreement
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Exhibit 10.1
NETWORK PRODUCTS PURCHASE AGREEMENT
Northern Telecom Inc., a Delaware corporation having offices at 4001 East Chapel
Xxxx-Xxxxxx Highway, Research Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("Nortel") and
D & E Communications, Inc., a Pennsylvania corporation, having its principal
offices and place of business at 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx
00000-0000 ("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.
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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 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 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 reimburse Nortel or pay
directly to the applicable government or taxing authority all taxes and
charges arising hereunder, including, without limitation, penalties and
interest, except for taxes computed upon the net income of Nortel.
Buyer's obligations pursuant to this Section 6 shall survive any
termination of this Agreement.
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7. RISK OF LOSS, TITLE
7.1 Risk of loss or damage 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, 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.
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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 personal 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 U.S. patents
granted to Nortel by the supplier of such Vendor Items to the
extent of Nortel's right to do so. In addition, Nortel shall
indemnify Buyer with respect to the cost of defending any
infringement claim brought in the U.S. by any third party
against Buyer.
Redacted. Confidential treatment requested.
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.
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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 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 during the first year of the
Term, Nortel shall refund to Buyer the purchase price of such
Products and after the first year of the Term, 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.
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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 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.
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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 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 hereunder 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.
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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 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.
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14.5 Any information which Nortel reasonably requests from Buyer
and which 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.
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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
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 Nortel may assign or transfer all or any part of this
Agreement or of its rights hereunder to any Affiliate without
Buyer's consent.
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18.5 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: D & E Communications, Inc.
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xx. Xxxx Xxxxxx
To Nortel: Northern Telecom Inc.
0000 Xxxx Xxxxxx Xxxx-Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Vice President Marketing-IOC/CNG
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.
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
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nationals of any country, except in accordance with applicable
U.S. law concerning the exporting of such technical data.
Buyer shall obtain all authorizations from the U.S. 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.
NORTHERN TELECOM INC. D & E COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -------------------------------
(Signature) (Signature)
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
----------------------------- -------------------------------
(Print) (Print)
Title: President Title: Executive Vice President, COO
---------------------------- ------------------------------
Date: 4/10/97 Date: March 20, 1997
----------------------------- -------------------------------
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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, Buyer's facility to which the
Products are to be
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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.
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5. Buyer shall not assign this license or sublicense any rights
herein granted 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.
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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. 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 payment, invoicing, passage of risk of loss, and
commencement of the Warranty Period.
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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 damaged by fire, explosion,
power failure, power surge, or other power irregularity, lightning,
failure
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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.
