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EXHIBIT 10.8
AGREEMENT NO. 97050833
AMENDMENT NO. 1
This Amendment No. 1 is made and entered by and between U S WEST Business
Resources, Inc. with offices for transaction of business located at 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 as agent for U S WEST Communications, Inc.
("Customer"), and Next Level Communications, with offices for transaction of
business located at 0000 Xxxxx Xxxx Xxxxx, Xxxxxxx Xxxx, XX 00000 ("Supplier").
RECITALS
Customer and Supplier entered into that certain Agreement No. 97050833, dated
August 8, 1997, (the "Agreement"); and Customer and Supplier wish to amend the
Agreement under the terms and conditions contained herein.
AGREEMENT
In consideration of the mutual promises and advantages to the parties, the
parties incorporate by reference and agree to the accuracy of the above recitals
and further agree as follows:
1. DESCRIPTION OF AMENDMENT AND MODIFICATIONS
1.1 The purpose of Amendment No. 1 is to definitize the award of
Access RFP R100523 to the subject Agreement. Certain terms and
conditions originally intended for the Agreement and Product
Schedule No. One do not apply to this new acquisition. The new
Access products shall be as defined in Product Schedule No.
Two separately from this Amendment.
1.2 Article 21, "Termination for Convenience" -
1.2.1 Article 21.1 of "Termination for Convenience" as set
forth in Addendum No. One, third sentence, fifteenth
line, for purposes of Product Schedule No. Two,
insert after, ". . . as set forth under this
Agreement," the following, "For purchases of the
NLevel(3) Switched Digital Access System(R) products
as specified in Product Schedule No. Two, Supplier's
remedies for termination under this Article 21 shall
be limited to: (1) [ * ] pursuant to the [ * ] set
forth in the Agreement for [ * ] properly [ * ] in
accordance with this Agreement prior to termination;
and (2) [ * ] for Purchases priced by [ * ] based on
the [ * ] of proper [ * ] in accordance with this
Agreement at the time of [ * ] , Customer shall have
no further liability to Supplier as a result of the
termination."
1.2.2 Article 21.2 of "Termination for Convenience" as set
forth in Addendum No. One shall not apply to the
NLevel(3) Switched Digital Access System(R) products
awarded as a result of RFP R100523. The following
statement is added before the text of 21.2, "This
article does not apply to purchases for NLevel(3)
Switched Digital Access System(R) products as
specified in Product Schedule No. Two."
1.3 Article 22.7 of "Default" as set forth in Addendum No. One
shall not apply to NLevel(3) Switched Digital Access System(R)
products awarded as a result of RFP R100523. The following
statement is added before the text of 22.7, "This article does
not apply to purchases for NLevel(3) Switched Digital Access
System(R) products as specified in Product Schedule No. Two."
1.4 Article 29., "M/WBE Subcontracting Plan" as modified by the
statement in Addendum No. One is changed to add the following
additional language as it applies to the Access RFP award
after the first sentence (in Addendum No. One), "Said M/WBE
Subcontracting Plan shall be supplemented and/or revised by a
submittal that applies to purchases of NLevel(3) Switched
Digital Access System(R) products contained in Product
Schedule No. Two, to be incorporated into subject Agreement no
later than December 15, 1998."
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* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
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AGREEMENT NO. 97050833
Amendment No. 1
1.5 Article 36., "Training" as added via Addendum No. One, is
changed to add conditions that apply to the Access Products
from R100523, to be contained in Product Schedule No. Two. The
following new paragraph is added after the last paragraph of
that article, "Supplier agrees to provide training for those
NLevel(3) Switched Digital Access System(R) products purchased
under Product Schedule No. Two in these [ * ] locations: [ * ]
(the last of which will be agreed upon at a later date)."
1.6 Article 40., "Business Commitment" as added via Amendment No.
One shall not apply to those [ * ] products awarded as a
result [ * ] The following statement is added after the title,
"This Article does not apply to purchases of NLevel(3)
Switched Digital Access System(R) products contained in
Product Schedule No. Two."
1.7 Article 41., "Evaluation of Prices" is added as follows,
"Annual review of Product Schedule by Customer with Supplier
shall occur to determine appropriate adjustments based on
current state of development of the technology, and other
market factors that could affect price."
2. EFFECTIVE DATE
2.1 This Amendment No. 1 shall be deemed effective October 15,
1998 through the Agreement's current expiration date of August
8, 2002.
2.2 Note that the term for Product Schedule No. Two may differ
from that of the Agreement.
3. FURTHER AMENDMENTS
Except as modified herein, the provisions of the Agreement shall remain
in full force and effect. Neither the Agreement nor this Amendment No.
1 may be further amended or altered except by written instrument
executed by an authorized representative of both parties.
The parties intending to be legally bound have executed this Amendment No. 1 as
of the dates set forth below, in multiple counterparts, each of which is deemed
an original, but all of which shall constitute one and the same instrument.
U S WEST BUSINESS RESOURCES, INC. AS AGENT FOR NEXT LEVEL COMMUNICATIONS
U S WEST COMMUNICATIONS, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
------------------------------------ ---------------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx Xxxxxx Xxxxxx X. Xxxxx
------------------------------------ ---------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
Procurement Manager VP Contracts Management
------------------------------------ ---------------------------------
(Title) (Title)
98 OCT 15 98 OCT 15
------------------------------------ ---------------------------------
(Execution Date) (Execution Date)
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* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
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Agreement No. 97050833
AGREEMENT
This Agreement is made by and between U S WEST Communications, Inc. with offices
for transaction of business located at 000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000 ("Customer"), and Next Level Communications with offices for transaction
of business located at 0000 Xxxxx Xxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000
("Supplier").
In consideration of the mutual covenants and agreements contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS: The terms defined herein shall have the meanings set
forth below.
1.1. "Acceptance," if applicable, is defined in the Special Provisions
Module(s).
1.2. "Agreement" means this written contract between Customer and
Supplier, including the General Terms and Conditions and all Special
Provisions Modules, together with Schedule(s), exhibits, any other
attachments, Order(s), and amendments to this Agreement.
1.3. "Confidential Information" is defined in Article 6.
1.4. "Customer" means U S WEST Communications, Inc.. Customer shall
also have the right to designate Affiliate(s) who may purchase under
this Agreement as Customer, and such Affiliate(s) shall become
additional Customer(s) under this Agreement upon Customer's written
notice to Supplier. For purposes of this paragraph 1.4, "Affiliate"
means any entity which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, Customer. For purposes of this paragraph 1.4, "control"
means (i) in the case of corporate entities, direct or indirect
ownership of twenty percent (20%) or more of the stock or shares
entitled to vote for the election of the board of directors or other
governing body of the entity; and (ii) in the case of non-corporate
entities, direct or indirect ownership of twenty percent (20%) or
greater of the equity interest.
1.5. "Deliver" ("Delivery") means Customer's receipt of Purchases at
the location specified in any Order(s) or in this Agreement.
1.6. "Documentation" means tangible or intangible information necessary
for the use, planning, engineering, installation, operation and
maintenance of Purchases, including but not limited to: Specifications,
user manuals, test data, flow charts, data file listings, loading and
unloading procedures, machine configuration information, programs,
routines, subroutines, or related information.
1.7. "Liabilities" shall mean all liabilities, claims, judgments,
losses, orders, awards, damages, costs, fines, penalties, costs of
defense, and attorneys' fees.
1.8. "Order(s)" means a written or electronic offer by Customer which
shall be deemed to incorporate all provisions of this Agreement.
1.9. "Product(s)" means those goods, supplies, materials, articles,
items, parts, components, assemblies, and the incidental associated
Software, listed and/or described in this Agreement or any Module(s),
Schedule(s), Order(s) and/or other attachments to this Agreement.
1.10. "Purchases" means all Product(s), Software and/or Services
described in this Agreement, Module(s), or on Schedule(s), Order(s),
and/or other attachments to this Agreement.
1.11. "Schedule(s)" means a written instrument made part of this
Agreement describing such things as the Purchase(s), price,
Specifications, warranty terms and related shipping and delivery
instructions.
1.12. "Services" means my work performed by or for Supplier under this
Agreement, including any deliverables resulting from or incidental to
the Services, as listed and/or described in this Agreement, Module(s),
or any Schedule(s), Order(s) and/or other attachments to this
Agreement.
1.13. "Software" means computer programs as listed and/or described in
this Agreement, Module(s) or any Schedule(s), Order(s) and/or other
attachments to this Agreement, and the related Documentation.
"Software" includes, without limitation, all versions and all updates,
enhancements and corrections, together with operating instructions,
user manuals, training materials and other Documentation. "Software"
does not include source code or proprietary design documentation,
unless otherwise agreed to in writing by the parties.
1.14. "Special Provisions Module(s)" or "Module(s)" means, as
applicable, the Special Provisions Module-Software License and
Services, and/or the Special Provisions Module-Services, and/or the
Special Provisions Module-Product(s), and/or any other similar set of
provisions which we attached to the General Terms and Conditions and
form part of this Agreement.
1.15. "Specifications" means technical, functional, operational and
other criteria and/or performance requirements for Purchases, in any
medium, which criteria and/or requirements are referenced in or made
part of this Agreement, and schematics, prototypes, models, Supplier's
proposals and literature, and/or Documentation furnished to Customer.
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2. TERM: This Agreement shall be effective as of August 8, 1997, and shall
continue through August 8, 2002. This Agreement shall thereafter automatically
renew for successive periods of one (1) year each unless a party gives written
notice of intention to terminate at least one hundred twenty (120) days before
the end of any term, or this Agreement is terminated or canceled under Articles
21 or 22. The Special Provisions Modules, Schedules and/or other parts of this
Agreement may specify a different term(s) applicable specifically to that
portion of this Agreement. If my such specific term continues beyond this
Agreement, the General Terms and Conditions and other applicable provisions of
this Agreement shall continue to govern that portion of this Agreement.
3. INVOICES, PAYMENTS, SETOFF, TAXES:
3.1. Supplier shall issue invoices in the format required by Customer
within thirty (30) days following Delivery of Products or Software or
completion of Services, which itemize all charges, costs, taxes and
Software license fees separately. No term or condition of any invoice
shall be binding upon Customer, and Customer hereby objects to any
terms inconsistent with or additional to the terms and conditions of
this Agreement.
3.2. Correct and undisputed amounts on invoices shall be paid within
thirty (30) days following receipt of the invoice and following
Delivery of Products or Software or completion of Services, unless
otherwise provided in a Schedule or other attachment. Notwithstanding
the foregoing, payment shall not be due then if on or before the due
date Customer notifies Supplier of rejection or non-Acceptance of
Purchase(s). Disputed amounts on invoices shall he paid within thirty
(30) days after resolution of dispute. Supplier agrees to provide to
Customer reasonable supporting documentation concerning any disputed
amount within thirty (30) days after Customer notifies Supplier of the
dispute.
3.3. Credits due to Customer may be applied against amounts owed to
Supplier. If no amounts are owed by Customer to Supplier, Supplier
shall issue payment within thirty (30) days of Customer's written
request.
3.4. Payment shall not constitute Acceptance or approval of the
Purchases or a waiver by Customer of any right to require fulfillment
of all terms and conditions of this Agreement.
3.5. The act of submission of an invoice constitutes Supplier's
certification that all claims, liens and causes of action, if any, for
the payment of wages or salaries or the payment of charges for
materials, tools, machinery or supplies have been satisfied, released
or settled. Customer reserves the right before making payments to
require Supplier to furnish sufficient evidence that all claims, liens
and causes of action have been satisfied, released or settled. If
satisfactory evidence is not furnished, the amount of such claims,
liens and causes of action may be withheld from any monies otherwise
payable to Supplier hereunder until such evidence of payment or a bond
to indemnify Customer against my such claims, liens, and causes of
action has been furnished.
3.6. All claims for monies due from Customer shall be subject to
deduction or setoff by Customer for any claim arising out of any
transaction with Supplier.
3.7. Supplier shall be responsible for any and all taxes including,
without limitation, the income, payroll, sales, use, gross receipts,
real estate, personal property or other taxes imposed upon Supplier.
Supplier will indemnify and hold harmless Customer for any loss or
damage (including without limitation any penalties and interest)
sustained because of Supplier's failure to pay such taxes. Customer
will be responsible only for the sales or transaction taxes that are
directly imposed upon any of the Purchases furnished in accordance with
this Agreement, and such sales or transaction taxes shall be listed
separately on Supplier's invoices.
4. RECORDS: Supplier shall maintain complete and accurate records of all
amounts billable to and payments made by Customer hereunder in accordance with
recognized accounting practices. Supplier shall retain such records for a period
of four (4) years from the date of payment for Purchases covered thereby. During
the term of this Agreement and the respective periods in which Supplier is
required to maintain such records, Customer and its authorized agents and
representatives shall have access to such records for purposes of audit during
Supplier's normal business hours.
5. WARRANTIES:
5.1. Supplier warrants that it has all rights, title, and interest,
free of all liens and encumbrances, in and to all Product(s) and
Software sold, leased or licensed to Customer; except that for Software
which is not owned by Supplier, Supplier warrants that it has the right
to grant the licenses granted hereunder.
5.2. Supplier warrants that Purchases shall conform to all
descriptions, Specifications, statements of work, representations, and
other requirements set forth in this Agreement. Module(s), Schedule(s)
and/or any Order(s); and will be free from defects in materials,
performance, workmanship, and design. Supplier further warrants it will
perform Services with promptness, diligence and in accordance with the
highest standards in the field to the reasonable satisfaction of
Customer.
5.3. Any specific warmly periods shall be as set forth in the
Special Provisions Module(s) and/or Schedule(s).
5.4 Supplier represents and warrants that the Products and
Software will function properly in accordance with Specifications and
will record, store, process, calculate and present calendar dates
falling on and after (and if applicable, spans of time including)
January 1, 2000, and will calculate any information dependent on or
relating to such dates in the same manner, and with the functionality,
data integrity and performance, as the Products and Software record,
store, process, calculate and present calendar dates on or before
December 31, 1999, or calculate any information dependent on or
relating to such dates ("2000 Compliant"). Supplier represents and
warrants that the Products and Software (1) will lose no functionality
on or after January 1, 2000 and will
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Agreement No. 97050833
lose no functionality with respect to the introduction of records
containing dates falling on or after January 1, 2000 and (2) will be
interoperable with other products and software used by Customer that
may deliver records to the Products and Software or receive records
from the Products and Software, or interact with the Products and
Software, including but not limited to back-up and archived data. Upon
request by Customer, Supplier agrees to provide a test script to
validate that the Products and Software are 2000 Compliant. The
warranties and representations in this paragraph are not subject to any
limited or specific warranty periods in the General Terms and
Conditions, or in any Special Provisions Module(s) and/or Schedule(s).
If any products and/or software previously provided to Customer by
Supplier, whether hereunder or under separate agreements, is not 2000
Compliant and is currently under maintenance by Supplier or Supplier's
designee, Supplier shall modify or replace such products and/or
software with products and/or software that are 2000 Compliant no later
than January 1, 1999, without charge to Customer.
5.5. Warranties will not be affected by removal, relocation, or
resale of Product(s), and warranties shall survive inspection,
Acceptance and payment. Warranties shall run to Customer, its agents,
successors in interest, assigns and customers.
5.6. If Supplier is not the manufacturer or licensor, or, with
respect to Software the owner, Supplier shall obtain the same warranty
as specified herein from the manufacturer, licensor or owner, and the
complete warranty will pass to Customer. Supplier shall have primary
responsibility for and shall assist and cooperate with Customer in
making claims under such warranty.
5.7. Supplier shall promptly correct or make good non-conforming
Purchases, to the reasonable approval and acceptance of Customer, at no
cost to Customer.
5.7.1. Non-conforming Purchases shall be either corrected
on-site or returned to Supplier for correction, at Supplier's
expense and at Customer's option. Customer agrees to be
reasonable in requiring on-site corrections.
5.7.2. If the non-conformity has not been corrected within
five (5) days from date of Customer's notification of failure,
Customer shall have the right to have the non-conformities
remedied at the expense of Supplier, and Supplier shall be
responsible for all losses, expenses and damages incurred by
Customer. Customer shall also have the right to cancel this
Agreement and/or any Order(s) pursuant to Article 22.
5.8. These Warranties are not sole and exclusive but are in
addition to, and do not limit, any rights afforded to Customer by this
Agreement or as provided by law.
6. CONFIDENTIAL INFORMATION:
6.1. Confidential Information shall mean any technical or business
information, including third-party information, marked as confidential
or proprietary and furnished, disclosed or made available in
connection with this Agreement, in any form or medium, by one party to
the other, including, without limitation, Specifications, prototypes,
Software, models, drawings, marketing plans, financial data and
personnel statistics. Confidential Information in oral form must be
identified as confidential at the time of disclosure and confirmed as
such in writing within thirty (30) days of such disclosure.
Confidential Information does not include information which (1) the
recipient knew or had in its possession, prior to disclosure, without
confidential limitation; (2) is independently developed by the
recipient without breach of this Agreement; (3) becomes publicly
available without breach of this Agreement; (4) is received rightfully
from a third party and without obligation of confidentiality; or (5)
is disclosed without restriction by the disclosing party.
6.2. If the parties deem it necessary and request to receive
Confidential Information from each other, the parties agree:
6.2.1. To maintain and use Confidential Information only for
the purposes of this Agreement and only as permitted herein.
To only make copies as specifically authorized and with the
same confidential or proprietary notices as are on the
original.
6.2.2. To restrict access and disclosure of Confidential
Information to their employees, agents and contractors who
have a "need to know," and who agree to maintain
confidentiality in accordance with this Article.
6.2.3. To treat Confidential Information as confidential for
a period of [ * ] from the date of receipt.
6.3. Confidential Information shall at all times remain the
property of the disclosing party. Upon request, Confidential
Information shall be returned to the disclosing party upon termination,
cancellation or expiration of this Agreement.
6.4. Except as may be required by applicable law, regulations,
legal or agency order, demand or process, neither party shall disclose
to a third party my Confidential Information or the contents of this
Agreement without the prior written consent of the other party. In the
case of required disclosures, the owner of Confidential Information
shall, to the extent reasonably possible, be given notice prior to the
disclosure and an opportunity to seek an appropriate protective order.
The obligations of this Article shall be satisfied by handling
Confidential Information with the same degree of care which the
receiving party applies to its own similar confidential information but
in no event less than reasonable care. Customer's liability under this
Article shall be subject to the same limitations as set forth in
Article 22.4. The obligations of this Article shall survive the
expiration, cancellation or termination of this Agreement.
7. OWNERSHIP:
7.1. "Work Product(s)" means all information, materials, products,
drawings, specifications, reports, proposals, and any other items, in
any medium, and any ideas, designs, concepts, techniques, inventions,
discoveries, improvements, software, documentation, original works of
authorship and
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* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
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Agreement No. 97050833
any other work products discovered, prepared or developed by or for
Supplier or its employees specifically for Customer in connection with
Purchase(s) under this Agreement or in the course of or as a result of
Services. Unless otherwise expressly provided in applicable Schedule(s)
or other attachments, Work Product(s) shall be promptly disclosed and
furnished to Customer. All right, title and interest in and to the Work
Products shall vest in Customer and they shall be deemed to be works
made for hire, and to the extent they may not be considered works made
for hire Supplier assigns to Customer all rights, title and interest in
and to the Work Products, including rights to copyrights in all
copyrightable materials and in and to all patents that may be issued
thereon. If the Work Products include item previously developed or
copyrighted by Supplier or a third party. Supplier hereby grants to
Customer an unrestricted, royalty-free, perpetual, irrevocable license
to make, have made, copy, use, modify, distribute, prepare derivative
works, perform, display, disclose and sublicense such Work Products for
any lawful purpose. Supplier represents and warrants that it has all
necessary agreements with its employees in order to convey the rights
of ownership and title stated herein. Upon request from time to time,
and without charge but with reimbursement for out-of-pocket costs and
expenses incurred, Supplier and its employees agree to reasonably
assist Customer and its nominees to obtain patents for any Work
Products anywhere in the world. Supplier and its employees agree to
execute all papers (including assignments) and do all things required
in order to protect the rights of Customer and vest in it or its
nominees all right, title and interest in and to the Work Products,
patent applications, and patents, without charge but with reimbursement
for out-of-pocket costs and expenses incurred.
7.2. "Other Intellectual Property" means inventions, discoveries,
improvements, concepts, methods, processes, ideas, information,
software, and other intellectual property which is not deemed to be
"Work Product(s)," but which is originated, developed or prepared in
connection with Purchase(s) under this Agreement. Unless otherwise
expressly provided in applicable Schedule(s) or other attachments,
"Other Intellectual Property" which is originated, developed or
prepared: (1) by employees of one party shall belong to that party;
and/or (2) jointly by employees of both parties shall belong jointly to
both, and each party hereby grants the other an unrestricted,
nonexclusive, royalty-free, perpetual, irrevocable license to copy,
use, disclose and sublicense such jointly developed Other Intellectual
Property in connection with its business.
7.3. At the request and expense of Customer, Supplier will assist
Customer and sign all appropriate documents, during and after the term
of this Agreement, to enable Customer to obtain intellectual property
protection for its interests in Work Product(s) and/or Other
Intellectual Property. Customer will, at the request and expense of
Supplier, provide the same assistance to Supplier with respect to Other
Intellectual Property owned by Supplier. The assisting party will not
charge any fees or other charges of my kind in connection with such
activities. Supplier shall obtain from its employees, consultants or
other representatives who perform work hereunder appropriate
assignments and/or rights to ensure that Supplier is authorized to
grant the rights provided to Customer hereunder.
7.4. Neither party grants the other party any express or implied
licenses under any patents, copyrights or trademarks, except to the
extent necessary for each party to fulfill its obligations to the other
under this Agreement.
8. INDEPENDENT CONTRACTOR:
8.1. Supplier warrants and agrees that it is engaged in an
independent business and that it and its employees and agents will
perform under this Agreement as independent contractors and not as
agents or employees of Customer; and that it will maintain complete
control over performance by its employees, agents and subcontractors.
Customer is not liable for debts or expenses incurred by Supplier, its
employees, agents and subcontractors. Nothing in this Agreement or any
subcontract shall create any contractual relationship or liabilities
between any agent or subcontractor and Customer. Supplier shall be
responsible for its own acts and those of its agents, employees and
subcontractors in connection with performance of this Agreement.
8.2. Supplier will be solely responsible for all matters relating
to payment of its employees, including compliance with workers'
compensation, unemployment, disability insurance, social security
withholding, and all other federal, state and local laws, rules and
regulations governing such matters. Supplier and its employees are not
entitled to unemployment insurance benefits as a result of performing
under this Agreement unless unemployment compensation coverage is
provided by Supplier. Supplier is responsible for and shall pay all
assessable federal and state income tax on amounts paid under this
Agreement.
9. SUBCONTRACTORS: Supplier shall obtain Customer's written consent, which
consent will not be unreasonably withheld, prior to subcontracting any
obligations hereunder. Such requirement shall not apply to purchases of
incidental, standard commercial supplies or raw materials.
10. PLANT AND WORK RULES: Each party while on the premises of the other
shall comply with all plant rules and regulations including, where required by
governmental regulation, submission of satisfactory clearance from the
appropriate governmental authorities.
11. INDEMNITY:
11.1. Supplier shall indemnify and hold harmless Customer, its
owners, parents, subsidiaries, affiliates, agents, directors and
employees against all Liabilities to the extent they arise from or in
connection with: (1) the fault or negligence of Supplier, its officers,
employees, agents, subcontractors and/or representatives; and/or (2)
the furnishing, performance or use of any Purchases under this
Agreement or any product
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liability claims relating to any Purchases; and/or (3) failure by Supplier,
its officers, employees, agents, subcontractors and/or representatives to
comply with Article 19 "Compliance with Laws:" and/or (4) assertions under
workers' compensation or similar employee benefit acts by Supplier or its
employees, agents, subcontractors, or subcontractors' employees or agents.
11.2 Customer shall indemnify and hold harmless Supplier, its owners,
parents, subsidiaries, affiliates, agents, directors and employees against
all Liabilities to the extent they arise from or in connection with: (1)
the fault or negligence of Customer, its officers, employees, agents,
subcontractors and/or representatives; and/or (2) failure by Customer, its
officers, employees, agents, subcontractors and/or representatives to
comply with Article 19 "Compliance with Laws," and/or (3) assertions under
workers' compensation or similar employee benefit acts by Customer or its
employees, agents, subcontractors, or subcontractors' employees or agents.
Customer's liability under this Article shall be subject to the same
limitations as set forth in Article 22.4.
12. PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INDEMNIFICATION:
12.1 Supplier shall, at its expense, indemnify, hold harmless, and defend
Customer, its owners, parents, subsidiaries, affiliates, agents, directors,
and employees against all Liabilities that arise from or in connection with
any infringement or claim of infringement of any patent, trademark,
copyright, trade secret or other intellectual property right, relating to
the Purchases and/or the use thereof. Customer may have its own counsel
participate in the defense of any such claim or action at its expense.
12.2 If any Purchase becomes, or in Supplier's reasonable opinion is likely
to become, the subject of a preliminary or final order or judgment against
Customer's use of any Purchase(s) due to such a claim of infringement.
Supplier shall, at its expense, either procure the right for Customer to
continue using such Purchase(s) or replace or modify the same so as to
become non-infringing, while remaining compatible, functionally equivalent
and in conformity with the requirements of this Agreement. If neither of
the foregoing alternatives is reasonably possible. Supplier shall refund to
Customer an appropriate pro rata portion of amounts paid pursuant to this
Agreement and reimburse Customer for all reasonable expenses of removal and
replacement.
13. Insurance: Supplier shall at all times during the term of this Agreement,
at its own cost and expense, carry and maintain at a minimum, the insurance
coverage listed below with insurers having a "Best's" rating of at least B+XIII.
Supplier shall not commence any work hereunder until Supplier has fulfilled all
insurance requirements herein. Supplier shall require its subcontractors and
agents to maintain the same insurance coverage listed below.
13.1 Worker's Compensation insurance with statutory limits as required in
the state(s) of operation; and providing coverage for any Supplier employee
entering onto Customer premises, even if not required by statute.
Employers' Liability or "Stop Gap" insurance with limits of not less than
$100,000 each accident.
13.2 Commercial General Liability Insurance covering claims for injury,
death, personal injury or property damage bodily occurring or arising out
of the performance of this Agreement, including coverage for independent
contractor's protection (required if any work will be subcontracted),
premises-operations, products/completed operations and contractual
liability with respect to the liability assumed by Supplier hereunder. The
limits of insurance shall not be less than:
Each Occurrence $2,000,000.00
General Aggregate Limit $2,000,000.00
Products-Completed
Operations Limit $2,000,000.00
Personal and Advertising
Injury Limit $2,000,000.00
13.3 Comprehensive Automobile Liability Insurance covering ownership,
operation and maintenance of all owned, non-owned and hired motor vehicles
used in connection with the performance of this Agreement, with limits of
at least $1,000,000 per occurrence for bodily injury and property damage.
13.4 The insurance limits required herein may be obtained through any
combination of primary and excess or umbrella liability insurance. Supplier
shall forward to Customer certificates of such insurance upon execution of
this Agreement and upon any renewal of such insurance during the term of
this Agreement. The certificate(s) shall provide that (1) Customer
(including all participating affiliates) be named as an additional
insured(s) as their interest may appear with respect to this Agreement; (2)
thirty (30) days prior written notice of cancellation, material change or
exclusions in the policy shall be given to Customer; (3) coverage is
primary and not excess, or contributory with, any other valid and
collectible insurance purchased or maintained by Customer.
13.5 Any additional or different insurance requirements shall be specified
in Module(s), Schedule(s) or Attachment(s) to this Agreement.
14. ADVERTISING; PUBLICITY: Neither party shall use the other party's names,
marks, codes, drawings or Specifications in any advertising, promotional efforts
or any publicity of any kind without the prior written permission of such other
party.
15. ASSIGNMENT:
15.1 This Agreement shall be binding upon the parties' respective
successors and permitted assigns. Neither party may assign or delegate this
Agreement and/or any of its rights and obligations hereunder without the
prior written consent of the other party, which consent shall not be
unreasonably withheld. Any such attempted assignment shall be void.
However, Customer may assign this Agreement and delegate any of its rights
and/or obligations hereunder to its parents, subsidiaries of its parents,
or other affiliates, without the consent of Supplier. Any assignment of
amounts payable is void to the extent that it attempts to impose on
Customer obligations to the assignee, or to preclude
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Customer from dealing solely and directly with Supplier in all matters
under this Agreement.
15.2. Notwithstanding the above, the parties acknowledge that
Customer may select at any time a "Prime Contractor" to provide and/or
manage the type of Purchases generally covered under this Agreement.
For and in consideration of the mutual covenants contained in this
Agreement, the parties hereby expressly agree that the Purchases,
duties, and obligations to be performed under this Agreement by
Supplier may be assigned and delegated to the Prime Contractor by
Customer. The parties hereby expressly consent to such an assignment
and delegation. The Prime Contractor will take the place of Customer
for all purposes and; Supplier will be obligated to the Prime
Contractor under the terms and conditions set forth under this
Agreement. The Prime Contractor and Supplier will be bound to the terms
of this Agreement in every way as if the Prime Contractor was named a
party to this Agreement. The Agreement between Prime Contractor and
Supplier will supersede the obligations and liabilities arising
thereafter under the Agreement. Customer agrees to provide Supplier
reasonable prior written notice.
16. FORCE MAJEURE: Neither party shall be liable for failure to perform
solely caused by unforeseeable force majeure circumstances beyond their control
("Force Majeure"). If such circumstances occur, the party injured by the other's
inability to perform may elect to: (1) terminate this Agreement in whole or in
part; or (2) suspend the Agreement, in whole or part, for the duration of the
Force Majeure circumstances; or (3) terminate any affected Order(s) and delete
the canceled quantity from its committed quantity for the year in which the
canceled quantity was to have been purchased. The party experiencing the Force
Majeure circumstances shall cooperate with and assist the injured party in all
reasonable ways to minimize the impact of such circumstances on the injured
party, including assisting in locating and arranging for substitute Purchases.
17. TIME IS OF THE ESSENCE: Time is of the essence in performance hereunder
and a significant and material term hereof.
18. WAIVER: The failure of either party to exercise any right shall not be
construed to be a waiver unless agreed upon in writing. A waiver in any one
instance will not constitute an amendment to this Agreement or indicate my
continued waiver of such right on any other occasion.
19. COMPLIANCE WITH LAWS:
19.1. Supplier shall obtain and maintain at its own expense all
permits and licenses and pay all fees required by law with respect to
any Purchases and/or performance of this Agreement. The parties shall,
in connection with performance of and Purchases under this Agreement,
comply with all applicable federal, state, and local laws, ordinances,
rules, regulations, court orders, and governmental or regulatory agency
orders ("Laws"), including, without limitation:
19.1.1. The Telecommunications Act of 1996 and all rules,
regulations and orders issued in connection with that Act and
this Agreement shall, to the greatest extent possible, be
construed to be consistent with the same;
19.1.2. Laws relating to non-discrimination in employment,
fair employment practices, equal employment opportunity,
employment opportunities for veterans, non-segregated
facilities, and/or employment of the disabled, except to the
extent a party is exempt therefrom; and the Laws and contract
clauses required by those Laws to be made a part of this
Agreement are incorporated herein by this reference;
19.1.3. The Laws referred to in Article 8 "Independent
Contractor";
19.1.4. Supplier acknowledges that Purchase(s) and/or
Confidential Information ("Exports") may be subject to U.S.
and applicable foreign export laws or regulations. Supplier
shall perform its obligations under this Agreement in a manner
consistent with the requirements of all applicable U.S. and
all applicable foreign laws and regulations, including the
U.S. export laws and regulations, the Foreign Corrupt
Practices Act, and anti-boycott laws, and U.S. export laws and
regulations prohibiting the unauthorized export or re-export
of certain items to residents of countries listed in U.S.
Export Administration Regulations. Specifically, Supplier
certifies and warrants that the shipment or provision of
Exports, any associated technical data or information, or the
direct product thereof, will not violate U.S. export laws or
regulations, or the import laws and regulations of all
applicable foreign states. Supplier shall be responsible for
obtaining, recording, filing, maintaining, and paying for all
export and import documentation including all licenses and
permits.
19.1.5. The Occupational Safety and Health Act of 1970 (as
amended) and all other Laws relating to safety and health,
including applicable motor carrier safety regulations.
Supplier shall be solely responsible for its safety, the
safety of its employees, its subcontractors and agents, and
its general work area, and the safety of Purchases hereunder
so that all Purchases comply with safety and health Laws when
used or performed. Supplier shall immediately remedy any
non-compliance and indemnify and hold Customer harmless from
my penalty, fine or Liabilities in connection therewith; and
19.1.6. The Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (as amended), and all
other Laws relating to that Act, and all other applicable
environmental Laws, including Laws relating to hazardous
materials, asbestos or toxic items. Supplier shall furnish
Customer with Material Safety Data Sheets that comply with
Laws and other environmental compliance data requested by
Customer.
19.2. The requirements of this Article 19 shall survive the
expiration, termination or cancellation of this Agreement. All
provisions of this Article shall also apply to all subcontractors, and
similar terms shall be included in all Supplier's contracts with
subcontractors.
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20. SEVERABILITY: Any term or provision of this Agreement which is held to be
invalid, void, unenforceable or illegal will in no way affect, impair or
invalidate the remaining terms or provisions, which will remain in full force
and effect, consistent with the original intent of the parties. However, if
such provision is an essential element of the Agreement, the parties shall
promptly attempt to negotiate a substitute therefore.
21. TERMINATION OF AGREEMENT OR ORDER(s):
21.1. Customer shall have the right to terminate this Agreement and/or any
Order(s), in whole or in part, upon thirty (30) days written notice to
Supplier. Upon receipt of notice of termination, Supplier shall place no
further orders, terminate contracts, take such action as directed by
Customer, and cease work, all in accordance with Customers notice.
21.2. Supplier's remedies for termination under this Article 21 shall be
limited to: (1) payment pursuant to the prices set forth in the Agreement
for Purchases properly performed or Delivered in accordance with this
Agreement prior to termination; and (2) partial payment for Purchases priced
by flat fee based on the percentage of proper completion in accordance with
this Agreement at the time of termination. Customer shall have no further
liability to Supplier as a result of the termination.
22. CANCELLATION FOR DEFAULT:
22.1. Either party may cancel this Agreement and/or any Order(s), in whole
or part, without liability, by giving written notice of breach or default if
the other (1) becomes insolvent, unable to pay debts when due, or the
subject of bankruptcy proceedings not terminated within thirty (30) days of
any filing; or makes a general assignment for the benefit of creditors; or
if a receiver is appointed for substantially all of its property; or (2)
materially breaches or defaults on its obligations under this Agreement and,
if the breach or default can be cured, fails to cure the breach or default
within thirty (30) days after receipt of written notice to cure; or (3)
commits breaches on obligations other than payment, repetitively, or at
least three separate significant times within any four-month period.
Customer may cancel any Order(s) in whole or in part, without liability, if
Supplier fails to Deliver conforming Purchases under that Order on time.
22.2. If Services are being provided, Customer shall have the right to take
over and complete the Services at Supplier's expense.
22.3. If Customer cancels this Agreement and/or any Order(s) for Supplier's
default or breach, it shall be entitled to recover from Supplier all losses,
damages and expenses incurred as a result of Supplier's default or breach.
Supplier shall refund to Customer amounts previously paid for Purchases
which, due to such cancellation, cannot reasonably be used by Customer, and
shall bear all expenses for their removal and return. Supplier shall, at
Customer's option, promptly remove Purchases or bear the cost of removal.
Supplier shall restore or bear the expenses of restoration of Customer's
property to its original condition at the direction of Customer and refund
to Customer all monies previously paid for such Purchases.
22.4. If Supplier cancels this Agreement and/or any Order(s) for Customer's
default or breach, it may recover from Customer reasonable expenses incurred
as a direct result of Customer's default or breach, which shall not exceed
the amounts which Customer has not yet paid under the terms hereof. Customer
shall not be liable for incidental, consequential or indirect damages,
including but not limited to lost profits or unallocated overhead.
22.5. Any cancellation by Customer under this Article which is set aside or
deemed wrongful will be deemed a termination under Article 21 "Termination
of Agreement or Order(s)" of this Agreement.
23. DISPUTE RESOLUTION:
23.1. Any claim, controversy or dispute which arises between the parties,
their agents, employees, officers, directors or affiliates ("Dispute") which
the parties are unable to settle through consultation and negotiation may be
mediated under the Commercial Mediation Rules of the American Arbitration
Association ("AAA") by a mutually acceptable mediator. Any Dispute which
cannot be resolved through negotiation or mediation shall be resolved by
binding arbitration as provided in this Article. The arbitrability of claims
shall be determined under the Federal Arbitration Act, 9 USC Secs. 1-16.
Notwithstanding the foregoing, the parties may cancel or terminate this
Agreement in accordance with its terms and conditions without being required
to follow the procedures set forth in this Article.
23.2. A single arbitrator engaged in the practice of law, who is
knowledgeable about the subject matter of this Agreement and the matter in
Dispute, shall conduct the arbitration under the rules of the AAA then in
effect, except as otherwise provided herein. The arbitrator shall be
selected in accordance with AAA procedures from a list of qualified people
maintained by the AAA. The arbitration shall be conducted in Denver,
Colorado, and all expedited procedures prescribed by the AAA rules shall
apply. The laws of Colorado shall govern the construction and interpretation
of this Agreement. The arbitrator's decision and award shall be final,
conclusive and binding, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof.
23.3. Either party may request from the arbitrator injunctive relief to
maintain the status quo until such time as the arbitration award is rendered
or the Dispute is otherwise resolved. The arbitrator shall not have
authority to award punitive damages. Each party shall bear its own costs and
attorneys' fees, and the parties shall share equally the fees and expenses
of the mediator and arbitrator.
23.4. If any party files a judicial or administrative action asserting
claims subject to arbitration, as prescribed herein, and another party
successfully stays such action and/or compels arbitration of said claims,
the party filing said action shall pay the other party's costs and expenses
and in seeking such stay and/or compelling arbitration and reasonable
attorneys' fees.
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23.5. Supplier agrees that in the event of any Dispute between the
parties, it will continue to provide Purchases without interruption.
23.6. Supplier shall include in all contracts with its
subcontractors provisions similar to those in this Article 23,
requiring that all disputes in my way involving Customer shall be
settled by binding arbitration.
24. SEVERAL LIABILITY AND JOINT DISCOUNTS: The term Customer as used herein
may be applicable to one or more parties and the singular shall include the
plural. If more than one party is referred to as Customer herein, then their
obligations and liabilities shall be several, not joint. Notwithstanding the
foregoing, all Purchases under this Agreement and/or related agreements shall be
cumulative for purposes of determining: (1) whether Customer has met any minimum
purchase requirements; (2) credits which may be applicable; (3) Customer's
forecasts; (4) the level of discount, if any, which shall apply to any
Purchases; and (5) any other requirements or incentives based upon the volume or
amount of Purchases.
25. NONEXCLUSIVE AGREEMENT: It is expressly understood and agreed that this
Agreement does not grant to Supplier any exclusive privileges or rights and
Customer may contract with other suppliers for the procurement of comparable
Purchases. Customer makes no guarantee or commitment for any minimum or maximum
amount of Purchases hereunder.
26. REMEDIES CUMULATIVE: The remedies provided herein shall be cumulative
and in addition to my other remedies provided by law or equity.
27. SURVIVAL: The provisions of this Agreement that, by their sense and
context, are intended to survive performance by either or both parties shall
also survive the completion, expiration, termination or cancellation of this
Agreement.
28. AMENDMENTS: No change or modification of any terms or conditions herein
shall be valid or binding on either party unless made in writing and signed by
authorized representatives of both parties.
29. M/WBE SUBCONTRACTING PLAN: Support of Minority and Women Businesses is
part of Customer's ongoing business strategy. If required by Customer, Supplier
agrees and commits to subcontract in accordance with its subcontracting plan as
approved by Customer, and such subcontracting plan shall be incorporated herein
as an attachment to the General Terms and Conditions entitled "M/WBE
Subcontracting Plan".
30. ELECTRONIC DATA INTERCHANGE ("EDI"): It is Customer's objective to
procure Purchases utilizing EDI. If Supplier is EDI capable, Customer and
Supplier shall enter into a Trading Partner Arrangement to implement EDI
transactions and such arrangement will be incorporated herein as an attachment
to the General Terms and Conditions, entitled "Electronic Data Interchange."
31. ENVIRONMENTAL: Supplier shall utilize its best efforts, wherever
applicable to the Schedule, to: Provide environmentally preferable energy
efficient Products and Services (based on EPA issued guidelines); provide
Products and Services that eliminate or reduce the generation of hazardous
waste/materials and the need for special material processing; and, Supplier
shall provide Products and Services that promote the use of non-hazardous,
recovered and recycled materials.
32. ENTIRE AGREEMENT: Terms and Conditions and all Special Provisions
Modules, together with all incorporated Schedules, exhibits, Order(s), any other
attachments, and amendments, shall constitute the entire Agreement between the
parties. Any preprinted terms and conditions on Order(s), acknowledgment forms,
or other forms or documents shall not apply and are objected to. This Agreement
supersedes all prior oral and written communications, agreements and
understandings of the parties with respect to the subject of this Agreement,
33. COUNTERPARTS: This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
34. AUTHORITY; JOINT PREPARATION: The parties represent and warrant that
they are duly authorized and have received all necessary consents to enter into
this Agreement, and that the signatories are duly authorized to bind the parties
to this Agreement. Each party acknowledges that it has reviewed this Agreement
and participated in its preparation and understands the provisions of this
Agreement. This Agreement and my ambiguous language shall not be construed
against either party for having prepared it.
35. SUPPLIER RELATIONSHIP: It is the parties' objective to support and
strengthen their working relationship to ensure performance and mutual
satisfaction under this Agreement. In support of this objective, the parties my
enter into and attach to the General Terms and Conditions as attachment,
entitled "Working Relationship."
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Agreement No. 97050833
U S WEST COMMUNICATIONS, INC.
/s/ Xxx Xxxxxxxx
---------------------------------
(Authorized Signature)
Xxx Xxxxxxxx
---------------------------------
(Print or Type Name of Signatory)
President and CEO
---------------------------------
(Title)
August 21, 1997
---------------------------------
(Execution Date)
NEXT LEVEL COMMUNICATIONS
/s/ Xxxx Xxxxxx
---------------------------------
(Authorized Signature)
Xxxx Xxxxxx
---------------------------------
(Print or Type Name of Signatory)
President
---------------------------------
(Title)
August 26, 1997
---------------------------------
(Execution Date)
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AGREEMENT NO. 97050833*P*2
PRODUCT SCHEDULE NO. TWO
This Product Schedule No. Two ("this Product Schedule") is attached to the
Special Provisions Module - Products and is a part of Agreement No. 97050833,
effective as of August 8, 1997, between U S WEST Communications, Inc.
("Customer") and Next Level Communications ("Supplier"). This Product Schedule
is subject in all respects to the Special Provisions Module - Products, except
that in the event of a conflict between this Product Schedule and the Special
Provisions Module - Products, the terms and conditions of this Product Schedule
shall govern for the purposes of this Product Schedule only.
1. SCOPE:
1.1 This Product Schedule establishes the terms and conditions
under which Customer may purchase the Product(s) set forth herein from
Supplier from time to time.
1.2 "Customer" for purposes of this Product Schedule means U S
WEST Communications, Inc.
1.3 Supplier's response to RFP R100523, Access, specifically
Sections 3, Requirement for Product/Services; 5, Documentation; and 6,
Quality and Reliability, are incorporated herein by this reference and
attached hereto as Supplier's representations as Exhibit B. Customer
shall have the right to rely upon such representations, except as
expressly modified or otherwise deleted in this Agreement.
1.4 Supplier hereby represents that its NLevel(3) Switched Digital
Access Systems(R) product will provide as follows:
1.4.1 A complete access platform along with its management
system, the associated network and customer equipment.
1.4.2 A variety of service capabilities to the users'
network interfaces. These interface requirements can range
from POTS to ISDN to Internet access. This may consist of an
extension of an existing Digital Loop Carrier (DLC) system or
the distribution side of my existing cross connect point.
There is a tremendous need to provide additional facilities
(both residential and business) in areas that we currently at
capacity but wholesale replacement of the facilities is cost
prohibitive.
1.4.3 Fiber to the Curb solutions.
1.4.4 Shortage solutions in growth areas. This includes
areas currently fed by copper, DLC systems, and/or fiber
multiplexers.
1.4.5 Data/video (xDSL, VDSL) on existing copper plant.
1.4.6 POTS and data/video (xDSL, VDSL) on existing copper
plant.
2. TERM OF PRODUCT SCHEDULE: This Product Schedule shall be effective from
October 15, 1998 through October 14, 2001 unless terminated or canceled
pursuant to the terms of this Agreement. The parties may extend the term or any
subsequent term of this Product Schedule by executing a separate written
agreement of extension prior to the expiration of the term.
3. PRODUCT(S) DESCRIPTION AND PURCHASE PRICE: Supplier shall provide to
Customer the Product(s) described in Exhibit "A," entitled "NLevel(3) Switched
Digital Access Systems(R) Product Schedule," dated October 7, 1998, a copy of
which is attached hereto and by this reference incorporated herein.
4. WARRANTY TERM:
4.1 Supplier's warranty for Product(s) shall commence upon date of
invoice and shall continue thereafter for a period of [ * ].
4.2 The warranty period for any Product(s) corrected or replaced
shall be [ * ] from Delivery of the corrected or replaced Product(s) or
the original warranty period, whichever period is longer.
4.3 The warranty period for the hardware portion of all Access
Systems and related products shall be [ * ] from the date of invoice.
Should out-of-box failures occur or new products fail, said products
shall be replaced with new products for similar fit and function.
Should products fail or become defective while in service, said
products shall, at Supplier's option, be repaired or replaced with
refurbished products. The warranty period for the repaired or replaced
products shall be the remainder of the original warranty or ninety (90)
days, whichever is greater. If Supplier is not the manufacturer or
licensor, Supplier shall obtain and pass to Customer manufacturer's
complete warranty.
4.4 The warranty for Customer Premises Equipment (CPE) intended
for use outside of Supplier's network interfaces shall be [ * ] from
the date of invoice. Such CPE shall include but not be limited to set
top boxes, residential gateways, data modem or set devices, and NIC
cards. During the warranty period, Supplier shall replace any defective
products or products that suffer out-of-box failure with new product of
similar fit and function. Should products fail or become defective
while in service, said products shall, at Supplier's option, be
repaired or replaced with refurbished products. The warranty period for
the repaired or replaced products shall be the remainder of original
warranty or ninety (90) days, whichever is greater.
4.5 The warranty period for the software utilized in View1 and
View2 product shall be [ * ] from the date of installation on
a workstation or computing platform. Said software is warranted to
conform to and perform in accordance with Supplier's specifications as
contained in Supplier's documentation when said software is operated on
the computing platform(s) outlined in Supplier's specifications. During
the warranty period, and at no charge, Customer shall received any and
all enhancements and maintenance releases issued by Supplier, and
shall, have unrestricted access to Supplier's TAC center for technical
support and assistance during normal business hours (6:00 a.m. to 5:00
p.m. PST). During non-business hours
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AGREEMENT NO. 97050833*P*2
Customer's access shall be restricted to service problems and
emergencies only. Upon Customer's purchase of any new feature release
license, Customer's warranty shall be extended to a period of [ * ]
years from the date of installation of the software release on a
workstation.
5. TRANSPORTATION, SHIPPING AND DELIVERY:
5.1 Supplier shall ship Product(s) in accordance with Customer's
instructions. Product(s) shall be shipped FOB Origin, Freight Collect.
Customer shall have the right to designate the transportation carrier
in any Order(s). Unless otherwise agreed, transportation charges shall
be limited to actual common carrier charges. Invoices reflecting
transportation charges shall be accompanied by legible copies of
prepaid freight bills, express receipts or bills of lading or other
supporting documents, as requested by Customer.
5.2 Customer may specify the Product(s) freight classifications in
its Order(s). If not so specified, Supplier shall classify Product(s)
and invoice Customer for freight charges in accordance with the current
National Motor Freight classifications.
5.3 Unless otherwise agreed, transportation charges payable by
Customer shall not exceed the lowest available cost of shipment between
the Delivery location and Supplier's nearest facility from which
Product(s) can normally be shipped. Nothing herein shall be construed
to alter or amend the Delivery schedule contained in any Order(s).
5.4 Customer will reimburse Supplier only those costs for rigging
and drayage performed at Customer's site, made at Customer's request,
if the costs thereof are not part of the price in any Order(s).
5.6 Supplier shall obtain and maintain, at its expense, cargo and
riggers insurance to cover the value of Product(s) being shipped.
5.7 Supplier shall be responsible for all misdirected shipments.
Misdirected shipments from Supplier shall be immediately reshipped by
Supplier prepaid to the correct destination. Customer shall be entitled
to deduct from Supplier's invoice all costs incurred by Customer due to
the reshipping.
5.8 Supplier's noncompliance with Customer's routing instructions
shall render Supplier liable for all risk of loss and excess freight
charges. Supplier shall be responsible for all charges in excess of
normal pricing, which result from deviation from normal service or
routing by Supplier.
5.9 Supplier shall not use premium transportation without the
prior written authorization of Customer. Premium transportation is any
service that produces a transportation cost higher than the cost that
would be incurred on a shipment via normal transportation.
5.10 It is understood and agreed to between the parties that
Supplier remains fully responsible to meet the Delivery Date as
specified in my Order(s) even though the Product(s) are shipped FOB
Origin, Freight Collect or per Customer's instructions. If Supplier
fails to meet a Delivery Date due to the sole negligence or fault of
the common carrier transporting said Product(s), Supplier agrees to use
its best efforts to: (a) reposition Customer to the front of Supplier's
manufacturing schedule; and (b) promptly and immediately reship
replacement Product(s) to Customer. Supplier will use reasonable
efforts to maintain a safety stock inventory on long lead Product(s).
5.11 Supplier shall Deliver Product(s) in time to meet the Delivery
Date; provided however: (a) Supplier shall not Deliver any Product(s)
prior to the Delivery Date without Customer's consent; and (b) Customer
and Supplier may agree in writing to change my Delivery Date.
5.12 Delivery interval(s) shall be thirty (30) days after receipt
of Order(s).
5.13 If the Delivery date specified in an Order is not met by
Supplier, then a late charge of [ * ] shall apply. Customer shall have
the right to credit any late charge against Supplier's invoices.
Customer's late charge shall not be deemed to constitute liquidated
damages, and Customer reserves all remedies provided in this Agreement
or at law.
6. PRICE PROTECTION:
6.1 For a period of [ * ] after the effective date of this
Product Schedule, the prices, rates, charges or fees for Product(s)
shall be as set forth in Paragraph 3, of this Product Schedule.
However, annual review of Product Schedule by Customer with Supplier
shall occur to determine appropriate adjustments based on current state
of development of the technology, and other market factors that could
affect price.
6.2 Supplier warrants that the prices, rates, charges or fees for
Product(s) sold hereunder are not less favorable than those currently
and in the future extended to other customers for the same or similar
Product(s) in similar quantities. Customer shall automatically have
the benefit of any lower prices, rates, charges or fees. Supplier
warrants that the prices shown on Order(s) are complete, and no
additional charges (including but not limited to shipping, packaging,
labeling, custom duties, storage, insurance, boxing and crating) shall
be added to Order(s) without Customer's express written consent.
6.3 Notwithstanding any other provision in this Product Schedule
or Order(s), Supplier shall not Deliver Product(s) and Customer shall
not be required to pay for Product(s) in excess of the quantity or
requirements set forth in the Order(s) unless Customer has first
executed a written acknowledgment to an order(s) authorizing the
increased expenditure.
7. REPORTS: supplies shall maintain a performance service level
of [ * ] percent or above for Delivery of all Order(s) issued within
the contracted intervals. Supplier shall provide to Customer its Performance
Service Reports in hard copy and on a ASCII DOS formatted 3 1/2" floppy disk
(written information shall accompany the disk that details the column widths for
each data field). Supplier shall mail the Reports to the address and person
indicated by Customer. Supplier's Performance Service Reports shall contain the
following:
7.1 Order(s) number;
7.2 Order issued date;
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AGREEMENT NO. 97050833*P*2
7.3 Order "On Job Date;"
7.4 Number of changes to Order;
7.5 Deliver performance on Order "On Job Due;"
7.6 Supplier ship date;
7.7 Quantity;
7.8 Full or partial shipment;
7.9 Order(s) received and returned by Customer;
7.10 Order(s) canceled prior to shipment;
7.11 Supplier's Delivery (contracted interval of performance); and
7.12 Supplier's assessment of performance.
8. OWNERSHIP: Upon Acceptance of products and payment to Supplier,
Customer shall own all products.
9. RESTOCKING CHARGE: Customer may at my time subsequent to Delivery
return Purchases to Supplier for credit. For any Purchases returned that are not
useable by Supplier's other customers within sixty (60) days, the Parties agree
they will use good faith efforts to reach an agreement as to an appropriate
amount due Supplier. However, in no event shall the amount due Supplier from
Customer exceed ten percent (10%) of the unit price of the Purchases returned.
10. UNCONFIRMED ORDERS: Customer may designate any Order(s), prior to
Supplier's acceptance, as unconfirmed Order(s). Unconfirmed Order(s) shall
establish Customer's position in Supplier's manufacturing, delivery and Services
schedule, and shall establish prices. Customer shall confirm, extend or withdraw
the unconfirmed Order(s) within thirty (30) days of issuance. Any Order(s) not
confirmed or extended shall be deemed to be terminated. Customer shall be under
no obligation to Supplier until the unconfirmed Order(s) have been confirmed.
11. PURCHASE SPECIFICATIONS AND REQUIREMENTS:
11.1 RF(X) Documentation provided to Customer by Supplier
regarding this project and Supplier's Specifications which have been
approved by Customer, including drawings, relating to Purchases are
hereby made a part of this Schedule. To the extent that any Order(s)
specifically provides for a variation from such Specification, the
requirements of the Order(s) shall control.
11.2 Supplier shall provide, as requested by Customer and at no
charge, any applicable drawings and updates thereof, in accordance with
U S WEST Technical Publications 77352 entitled "Central Office
Telecommunications Equipment Standard Drawing Requirements,"
incorporated by reference and made a part hereof, and 77002 entitled
"Technical Drawing Media Standards," incorporated by reference and made
a part hereof, to Customer's Central Office Record Center, located at
U S WEST Communications, Inc., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000. Supplier shall also provide, at no charge, and on an
ongoing basis, a current index of all drawings, showing latest issue
numbers, as well as complete descriptive information, to Customer's
Central Office Record Center. Such index shall be furnished in
accordance with U S WEST Technical Publication 77002. If Customer
requires additional copies of Supplier's drawings and index, such
drawings and index shall be made available to Customer at no charge.
11.3 Supplier shall promptly furnish for Purchases, standard site
preparation Specifications, if applicable, in such detail to ensure
that Purchases(s) can be properly installed. Any alterations or
modifications required in site preparation attributable to Supplier's
incomplete or erroneous Specifications shall be made at Supplier's
expense.
11.4 Upon Customer's request, Supplier shall provide with each
Order of Purchases, current applicable Purchases drawings in accordance
with Technical Publication 77352 and in the type of media as specified
by Customer. Such drawings shall be delivered to the Purchases Delivery
location and to the engineering location specified in the Order(s).
11.5 Customer shall have the right to reproduce Specifications,
including drawings and updates thereof for the purposes of engineering,
installing, maintaining, repairing and operating Purchases.
12. SUPPLIER QUALITY ASSURANCE AND INSPECTION:
12.11 If Supplier is the manufacturer, Supplier shall test and inspect
all Purchases and Software prior to shipment to Customer.
12.2 Supplier agrees to inform Customer in writing in advance of
any scheduled change(s) in Supplier's manufacturing processes or
quality control procedures or practices when such change(s) may affect
from, fit, function, quality or reliability of Purchases or Software.
12.3 Customer reserves the right to inspect manufacturing
facilities, processes and finished Purchases or Software prior to the
shipment date to verify compliance with the requirements herein or any
Order(s). Such inspection shall not relieve Supplier of any obligations
under the Agreement or my Order(s) nor shall such inspection be deemed
Acceptance.
12.4 Customer reserves the right to stop shipment of ordered
Purchases if they fail the inspection referred to in the paragraph
above.
12.5 Supplier will provide, at the request of Customer, access to
its quality control activity results, data, reports, charts,
procedures, manuals, requirements, practices and methods for incoming
or in-process Purchases or Software.
12.6 If Customer observes Supplier's deviation from Supplier's
quality control procedures or observes quality control activity results
which may indicate worsening Purchases or Software quality or
reliability, Supplier will, upon written request, formulate a
corrective action plan and submit it to Customer for review and
acceptance.
12.7 Supplier shall comply with the provisions in U S WEST
Technical Publication 77357, entitled
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"Engineering Complaints and Service Failure Analysis Reports"
incorporated by reference and made a part hereof. All documentation
relating to U S WEST Technical Publication 77357 shall be submitted by
Supplier to the address specified in U S WEST Technical Publication
77357.
12.8 Supplier shall comply with the current issues of Technical
Requirement Documents TR-NWT-000815 entitled "Network Element (NE)
Memory Administration Network Element and Network System Security,"
Issue 2, December 1992 and TR-NWT-000835 entitled "Operations
Application Messages - Network Element and Network System Security
Administration Messages" Issue 3, January 1993, and any subsequent
revisions and updates, at no charge.
12.9 Changes to Purchases or Software shall be in accordance with
U S WEST Technical Publication 77354, Guidelines For Product Change
Notices, incorporated by reference and made a part hereof. All
documentation relating to U S WEST Technical Publication 77354 shall be
submitted by Supplier to the address specified in U S WEST Technical
Publication 77354.
13. MARKING: Purchases and Software shall be marked by Supplier with the
following information, at no additional charge: (1) Supplier model and serial
numbers, if applicable; and (2) date of shipment or manufacture. Supplier shall
add any other identification which Customer may request, at Customer's expense.
14. REIMBURSABLE EXPENSES: Supplier shall be reimbursed only for
reasonable and necessary expenses incurred in connection with performance under
this Schedule and authorized in writing in advance, and meeting the criteria
below. Supplier shall provide monthly itemized statements of reimbursable
expenses, containing the Agreement and Schedule numbers under which the expenses
were incurred, with receipts attached for each single expenditure in excess of
twenty-five dollars.
14.1 Airfares: Unless waived below, all air reservations must be
made through Customer's authorized travel agency. If air reservations
are not made through Customer's authorized travel agency, airfares will
not be reimbursed. If waived, airfares shall be at the lowest rate
available not to exceed coach. TRAVEL AGENCY [ ] WAIVED [ X ]NOT
WAIVED.
14.2 Personal Automobile, Mileage: at $0.315 per mile for actual
miles traveled in performance under this Schedule.
14.3 Automobile, Rental: Where necessary for performance under this
Schedule, a subcompact or compact shall be used unless more than four
(4) people share the same car; where two (2) or more of Supplier
personnel are at the same site in connection with one Order, one (1)
car shall be shared by up to four (4) individuals.
14.4 Meals: shall not exceed thirty-five dollars per day per person
14.5 Lodging: at reasonable rates for the locale
14.6 Telephone Calls: those necessary for performance under this
Schedule. Personal calls are not reimbursable.
15. TRAINING:
15.1 Supplier shall provide sufficient training, training materials
and support to Customer to enable Customer to use Purchases to train
Customer's training instructors.
15.2 Supplier shall provide a list of prices for training manuals,
courses and support.
15.3 Customer shall have the right to reproduce training material
for internal use and for the purpose of training Customer or others
subject to the requirements herein dealing with "Confidential
Information." Such rights shall include photographic, video and audio
recordings of any training or training material.
15.4 "Training Services" means instructing, teaching, qualifying,
or certifying Customer's or others' employees or providing other
related services.
15.5 Supplier shall provide, as required by any Order(s), personnel
to conduct training and instructional aids appropriate for each course,
including books, pamphlets and diagrams.
15.6 Customer may, without liability, terminate any Training
Services by giving Supplier written notice ten (10) days prior to the
commencement date.
15.7 If Customer terminates any Training Services within one (1)
days of or after the commencement date, the parties will agree to a
reasonable fee for Supplier's time thus far.
16. MANUALS AND DOCUMENTATION:
16.1 Supplier shall provide at no additional charge, one (1)
complete paper set and one (1) complete electronic set of current
manuals and Documentation for each type of Purchases purchased by
Customer to: as specified by Customer.
16.2 With every Order Supplier shall deliver one (1) paper set of
Order specific manuals and one paper set of Order specific
Documentation at no additional charge. Supplier shall also deliver one
electronic set of Order specific manuals and Order specific
Documentation at no additional charge.
16.3 Manuals and Documentation will describe in detail the
engineering, installation, maintenance, repair and operation of
Purchases, Software and/or Products or Software resulting from
Services.
16.4 Supplier shall, at no additional charge, provide all future
updates, revisions and corrections of manuals and Documentation.
16.5 Customer shall have the right to reproduce manuals and
Documentation for the purpose of engineering, installing, maintaining,
repairing and operating Purchases. Reproduction shall include the
copyright or similar proprietary notices.
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AGREEMENT NO. 97050833*P*2
17. FUTURE AVAILABILITY OF REPAIRS, REPLACEMENT PARTS, AND MAINTENANCE NOT
COVERED UNDER WARRANTY:
17.1 "Repair Services" means inspecting for damages, repairing,
cleaning, lubricating, adjusting, calibrating, restoring or rebuilding,
refurbishing, testing and retrofitting engineering changes and updates,
and performing similar Services on Purchases not covered under
Maintenance Services or Warranty.
17.2 Supplier shall maintain the capability to perform Repair
Services or replace Purchases for [ * ] after the last purchase of such
Purchases. Replacement Purchases shall conform to the original
Purchases in form, fit and function. Repair or replacement shall be
accomplished within Supplier's published repair intervals or as agreed.
17.3 Supplier shall perform Repair Services in accordance with
Specifications and the requirements of this Schedule or any Order(s).
17.4 Unless otherwise specified in any Order(s), Supplier shall
perform Repair Services and return repaired Purchases within Supplier's
published repair interval. If Supplier has no published repair
interval, the parties shall mutually agree on an interval.
17.5 New or equivalent parts shall be used in effecting repairs or
replacement. Parts which have been removed from Purchases, shall become
Supplier's property. Parts which are installed in Purchases shall
become Customer's property.
17.6 If an emergency or out-of-service condition exists, Supplier
shall perform Repair Services within twenty-four hours (24) of
Supplier's receipt of Purchases.
17.7 If Purchases returned to Supplier are determined to be
irreparable, Supplier shall notify Customer and request disposition
instructions for such Purchases. If requested by Customer, Supplier
shall dispose of the irreparable Purchases and pay Customer the salvage
value. Customer's liability with regard to irreparable Purchases shall
be limited to transportation charges associated with the return of
Purchase.
17.8 Repaired and replacement Purchases shall be warranted as
outlined in the Warranties provisions contained in this Agreement.
17.9 Repaired Purchases shall have the warranty expiration date
identified in a permanent manner at a readily visible location or as
otherwise agreed. Repaired Purchases shall be returned with a tag or
other papers describing the Repair Services and any other modifications
and improvements which have been made.
17.10 Supplier shall be strictly liable for loss of or damage to
Purchases in its care, custody or control.
17.11 If Supplier is unable to maintain the capability to repair or
replace Purchases pursuant to the requirements set forth herein,
Supplier shall provide Specifications to enable other Customer
contractors to manufacture or Customer to obtain parts from third
parties. Such Specifications shall include, but not be limited to the
following:
A. Manufacturing drawings and Specifications of raw
materials and components comprising such parts;
B. Manufacturing drawings and Specifications covering
tooling and the operation thereof, and
C. A detailed list of all commercially available parts
and components including the part number, name and location of
Supplier, prices and functional descriptions.
17.12 Supplier shall provide written notification [ * ] prior to
discontinuing the manufacture of items of Purchases.
18. TECHNICAL SUPPORT:
18.1 Supplier shall provide for a period of [ * ] after the last
purchase of Purchases, technical support to assist Customer in the
engineering, installation, operation and maintenance of Purchases.
18.2 Supplier shall make such technical support available at no
charge during the warranty period.
18.3 After expiration of the warranty period such technical support
shall be available at Supplier's then current rates plus reimbursable
expenses as pre-authorized by Customer. Off-site technical support
shall be at no charge.
19. COMPLIANCE WITH LAWS AND REGULATIONS:
19.1 Radio Frequency Energy Standards: Appropriate Purchases shall
comply with the requirements of the Federal Communications Commission's
Rules and Regulations, Part 15, Subparts A, B, and C, and Part 2,
Subpart J as applicable and as amended, including those sections
concerning the labeling of such Purchases and the suppression of
radiation to specified levels.
19.2 Lightwave Radiation: Purchases containing laser devices must
meet the requirements of the United States Department of Health and
Human Services, and the Bureau of Radiological Health regulations,
including, but not limited to, those sections concerning the labeling
of Purchases and the suppression of lightwave radiation to specified
levels.
19.3 Registration: Appropriate Purchases shall comply with the
Federal Communications Commission's Rules and Regulations, Part 68.
20. INSTALLATION AND REMOVAL SERVICES:
20.1 "Installation Services" means constructing, erecting, placing,
moving, modifying, unpacking, connecting, wiring, cabling, inspecting
and testing Purchases and/or Software or perforating similar work as
ordered.
20.2 "Removal Services" means disconnecting, de-cabling,
dismantling, mining, packing or performing similar work affecting
Customer's Purchases as ordered.
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the Comission. Confidential treatment has been requested with respect to the
omitted portion.
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AGREEMENT NO. 97050833*P*2
20.3 For Installation and Removal Services performed in central
offices, Supplier shall perform such Services in accordance with U S
WEST Technical Publication 77350, entitled "Central Office
Telecommunications Equipment Installation and Removal Guidelines,"
incorporated by reference and made a part hereof.
20.4 Supplier shall provide all labor, tools (including portable
tools and test sets) portable buildings and toilets, trailers, storage
facilities, vehicles, equipment and other materials required.
20.5 Supplier shall receive, uncrate, unpack and inspect for damage
all Purchases and/or Software to be installed and shall promptly notify
Customer of any shortage or damage. If Supplier fails to make such
notations, Supplier shall be responsible for all loss of or damage to
Purchases and/or Software. When Supplier is also providing the
Purchases and/or Software, Supplier shall be solely responsible for all
claims, reordering and replacement of affected Purchases and/or
Software.
20.6 Supplier shall provide its current installation quality
standards, including workmanship standards, test and inspection
methods, sampling plans, test equipment calibration methods and
requirements, methods for determining acceptance quality levels and
similar criteria for administering Supplier's quality assurance
program.
20.7 Supplier shall conduct tests and analysis of installed
Purchases in accordance with Specifications and the requirements herein
and any Order(s), prior to the date stated in the Order(s) for
completion of installation and removal services.
20.8 Title to Customer's removed Purchases shall remain with
Customer.
20.9 Invoice and Payment: Installation and Removal Services, which
are scheduled to be completed in twelve (12) weeks or less, shall be
invoiced within thirty (30) days following the date Services are
completed. Services which are scheduled to be completed in more than
twelve (12) weeks shall be invoiced on a monthly basis for charges
accrued during the preceding month. Twenty percent (20%) of the total
amount payable may be withheld by Customer until the Services have been
accepted.
21. ENGINEERING SERVICES:
21.1 "Engineering Services" means analyzing, planning, designing,
pricing, detailing, drafting, creating specifications, ordering and
otherwise technically describing or specifying Purchases as ordered.
21.2 Supplier shall perform Engineering Services in accordance with
Specifications and the requirements herein and in any applicable
Order(s).
21.3 Engineering Services associated with central office equipment
shall be performed in accordance with the requirements of U S WEST
Technical Publication 77351 entitled "Central Office Telecommunication
Equipment Engineering Standards," incorporated by reference and made a
part hereof.
21.4 Drafting of Customer's central office drawings shall be
performed in accordance with U S WEST Technical Publication 77353,
entitled "Central Office Drawing Standards," incorporated by reference
and made a part hereof.
21.5 Results of Engineering Services including, but not limited to,
equipment specifications, office records, drawings and summaries of
Purchases shall become the exclusive property of Customer upon
Delivery, and shall not be used by Supplier for my other purposes.
21.6 Engineering Services Support: Notwithstanding any acceptance
by Customer, Supplier's obligation to provide Engineering Services
shall include support for such Services until the expiration of the
warranty period. Such support shall be available to Customer on-site,
if requested, at no additional charge and shall not be limited to
Supplier's normal working hours.
21.7 Invoice and Payment: Engineering Services, which are scheduled
to be completed in twelve (12) weeks or less, shall be invoiced within
thirty (30) days following the date Services are completed. Engineering
Services which are scheduled to be completed in more than twelve (12)
weeks shall be invoiced on a monthly basis for charges accrued during
the preceding month. Twenty percent (20%) of the total amount payable
may be withheld by Customer until the Services have been accepted.
22. MAINTENANCE SERVICES:
22.1 "Maintenance Services" means those Preventive, Remedial and
similar services performed by Supplier for a specified period of time
for a specific application.
22.2 "Principal Period of Maintenance" (PPM) means a consecutive
period from 8:00 a.m. to 7:00 p.m., EST in the continental U.S.A. and
8:00 a.m. to 5:00 p.m. local time, outside the continental U.S.A. at
site where Purchases are installed, occurring daily, Monday through
Friday, excluding New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
22.3 "Preventive Maintenance" means Maintenance Service performed
by Supplier on a scheduled basis to keep Purchases in good operating
condition as required in the Order(s). Preventive Maintenance may
include, but not be limited to:
A. Calibrating, testing, adjusting, cleaning,
lubricating, replacing worn or defective parts and performing
minor circuit updating and modification;
B. Maintenance and Engineering Services necessary to
retrofit or otherwise install engineering changes,
modifications and improvements made to any Purchases by
Supplier during the maintenance term for that (those)
Purchases; and
C. Automatic update services for all Manuals and
Documentation furnished with Purchases.
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AGREEMENT NO. 97050833*P*2
22.4 "Remedial Maintenance" means maintenance performed by Supplier
which is necessary to return inoperative or malfunctioning Purchases to
good operating condition.
22.5 The following shall be automatically eligible for Maintenance
Services without further conditions:
A. Purchases installed by Supplier, immediately upon
installation;
B. Purchases certified by Supplier as being eligible for
Maintenance Services;
C. Purchases maintained by Supplier, upon expiration of
the maintenance term; and
D. Purchases under warranty, upon expiration of the
warranty period.
22.6 Supplier shall inspect all other Purchases or systems and shall
notify Customer in writing of its condition and eligibility.
22.7 Preventive Maintenance shall be performed in a manner which
does not unreasonably interfere with Customer's use of Purchases.
Within two (2) days after acceptance of the Order(s), Supplier shall
specify in writing the frequency and duration of such maintenance, and
thereafter Customer will specify the schedule. This schedule may be
modified by written agreement.
22.8 Supplier shall provide a telephone number at which Customer
may obtain Remedial Maintenance. Maintenance personnel shall arrive
within one (1) hour, or as otherwise agreed, after receipt of
notification that Remedial Maintenance is required. Only one (1)
maintenance representative shall respond unless it is agreed that more
than one is required. Supplier may, at no additional charge, send
additional personnel.
22.9 Supplier shall provide continuously updated maintenance
organization charts, up to and including the national support level.
The charts shall include twenty-four hours (24) a day and seven (7)
days a week contact information.
22.10 Maintenance Service includes the following:
A. Preventive Maintenance;
B. Remedial Maintenance;
C. Additional Remedial Maintenance required due to a
recurrence of the same malfunction within a thirty day period;
D. Remedial Maintenance required when Preventive
Maintenance was not performed prior to occurrence of the
malfunction;
E. Parts required for Preventive or Remedial
Maintenance;
F. Labor to retrofit engineering changes for Purchases
purchased from Supplier;
G. Relocation of Purchases at Customer's site, if
requested by Customer and as agreed, during the term of
Maintenance Services;
H. Unpacking, installing, removing, packing and moving
including supervising such Services, or Purchases required in
the course or performance of Maintenance Services;
I. Performance of Acceptance tests; and
J. Refurbishment, rehabilitation or rebuilding services,
including parts and labor, for Purchases that has (have) been
in operation at one (1) or more of Customer's sites, or at
other locations selected by Customer, for less than seven (7)
years after the Acceptance Date, if such Purchases has (have)
been maintained by Supplier throughout its operation.
22.11 Supplier shall use only new parts, or parts of equal quality
and operating specifications, in performing Preventive or Remedial
Maintenance. Parts that are removed and replaced by Supplier shall
become the property of Supplier. All parts placed in operation shall be
additions to Purchases and shall become Customer's property.
22.12 Supplier shall keep a reasonable inventory of spare parts for
Purchases at Customer's site to make emergency repairs.
22.13 Supplier shall furnish and maintain a legible maintenance log
at each of Customer's maintenance sites which shall be available to
Customer for inspection. This log shall include:
A. Date and time Supplier was notified;
B. Date and time of arrival of Supplier's maintenance
personnel at Customer's site;
C. Nature of Services (Preventive or Remedial
Maintenance) provided;
D. Type, model number, serial number and location of
Purchases serviced;
E. Time Purchases were made available to Supplier and
the time Purchases were returned to service;
F. Total actual time expended performing Maintenance
Services;
G. Description of the malfunction, including known
causes;
H. Corrective action taken, including replacement parts
used;
I. Identification and signature of Supplier's
representatives; and
J. Customer's signature, if required.
22.14 Customer will, at no charge, provide reasonable space to
Supplier for spare parts and working space and will provide heat,
light, ventilation and power for use by Supplier's maintenance
personnel. Supplier shall maintain this space in an orderly manner,
consistent with Customer's site rules. Customer will not be liable for
loss or damage to Supplier's equipment or materials stored on
Customer's premises, except to the extent caused solely by Customer.
22.15 Notwithstanding the term of Services specified in the
Order(s), Customer may terminate Maintenance Services for its
convenience and at no charge upon thirty (30) days prior written notice
to Supplier.
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AGREEMENT NO. 97050833*P*2
22.16 Supplier shall provide Customer a detailed description of its
maintenance escalation guidelines prior to the commencement date.
23. PRODUCT(S) EVALUATION:
23.1 Supplier may provide to Customer certain Product(s) as further
described in a Request for Evaluation ("RFE") for the purposes of
Customer evaluating the applicability of such Product(s) to its
business, subject to the following: (1) Customer shall issue an RFE;
and (2) The term of the RFE shall be as set forth in the RFE.
23.2 An RFE shall be signed by both parties and shall include, at
a minimum, the following:
A. A description of the Products and/or Software and
delivery date;
B. The period of time for the evaluation;
C. Specifications and performance requirements;
D. Contacts for both Parties, including their phone
numbers;
E. Location of Products and/or Software;
F. Supplier's Responsibilities; and
G. Customer's Responsibilities.
23.3 Customer agrees not to use Products after the expiration of
the evaluation unless and until a separate written agreement of
extension is executed by the Parties.
23.4 At the end of the evaluation Customer shall notify Supplier of
its decision. At the end of the evaluation term if Supplier has not
been notified as to whether Customer desires to purchase Purchases
Supplier will request a status report from Customer. In no event shall
Supplier assume such silence is Acceptance.
23.5 If Customer decides not to purchase the Purchases, within ten
(10) days of such notice Supplier shall remove such Purchases at its
own risk and expense.
23.6 If Customer decides to purchase the Purchases, the Parties
will agree to the amount and terms of payment.
23.7 Customer will use Purchases provided under this Article for
the purpose of evaluation only. Such evaluation shall not obligate
Customer to procure Purchases for future use. Nor shall such usage be
deemed Acceptance by Customer.
23.8 Title to Purchases shall be and remain vested in Supplier.
Supplier shall bear the risk of loss of or damage to the Purchases
and/or Software.
24. INSURANCE:
24.1 Supplier shall at all times during the term of this Agreement,
at its own cost and expense, carry and maintain the insurance coverage
listed below with insurers having a "Best's" rating of B+XIII.
24.2 Should performance of this Agreement involve any use of
aircraft, aircraft liability insurance covering the ownership,
operation and maintenance of all owned and non-owned aircraft with
limits of not less than $5,000,000 per occurrence for bodily injury and
property damage, including passengers.
24.3 Comprehensive Crime insurance covering losses due to theft of
moneys or securities by Supplier's employees or third parties in an
amount not less than $ N/A per occurrence. Such insurance shall be
endorsed to provide coverage to Customer for losses arising from theft
from Supplier's employees or third parties while providing services
hereunder.
24.4 Errors and Omissions/Professional Liability insurance
covering errors and emissions of the Supplier with limits of not less
than $1,000,000 per occurrence and endorsed to provide coverage for
contractual liability with respect to liability assumed by Supplier
hereunder. Such insurance shall provide a retroactive date prior to the
date of this agreement and an extended claims reporting period of not
less than three (3) yews after the termination of this agreement.
24.5 Fidelity Bond covering losses due to Supplier's employee
dishonest acts in an amount not less than $1,000,000 per occurrence.
Such insurance shall be endorsed to provide coverage to Customer for
losses arising from dishonest acts of Supplier's employees while
providing Services hereunder.
24.6 Garage Liability insurance covering claims for bodily injury,
death or property damage occurring or arising out of the servicing or
repair of Customer's vehicles with limits of not less than $ N/A each
accident.
24.7 Garagekeepers' Liability insurance including comprehensive and
collision coverage for damage to Customer's vehicles left in the
Supplier's care with limits of not less than $ N/A each garage
location.
24.8 Liquor Liability insurance covering bodily injury, death or
property damage occurring or arising out of the sale or distribution of
alcoholic beverages with limits of not less than $ N/A per occurrence.
24.9 Motor Truck Cargo insurance covering losses to Customer's
property with limits of not less than $500,000 any one conveyance.
25. VOLUME: Customer has estimated various planning forecasts in the range
of [ * ] subscriber lines to be provisioned over the term of this Product
Schedule. Supplier clearly understands and agrees that such planning estimates
do not represent any minimum or maximum purchase obligations/commitments on the
part of Customer under this Agreement.
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* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
20
AGREEMENT NO. 97050833*P*2
The parties intending to be legally bound have caused this Product Schedule
No. Two to be executed by their duly authorized representatives.
U S WEST BUSINESS RESOURCES, INC. AS AGENT FOR NEXT LEVEL COMMUNICATIONS
U S WEST COMMUNICATIONS, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
------------------------------------ ---------------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx Xxxxxx Xxxxxx X. Xxxxx
------------------------------------ ---------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
Procurement Manager VP Contracts Management
------------------------------------ ---------------------------------
(Title) (Title)
98 OCT 15 98 OCT 15
------------------------------------ ---------------------------------
(Execution Date) (Execution Date)
Page 9 of 15
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS WHO HAVE A
NEED TO KNOW.
21
Agreement No.: 97050833
Product Schedule No.: Two
Exhibit: A
Dated: October 7, 1998
PRODUCT AND PRICE LIST
MFG'S P/N DESCRIPTION PRICE CLEI(TM) CODE
---------- ---------------------------------------- ----- -------------
CENTRAL OFFICE EQUIPMENT
750-00008 Broadband Digital Terminal Shelf Assembly (BDT) [ * ] BAM3AA0ARA
825-00001 N3 View-1, Operational Support Software --
Billing Only
825-00002 N3 View-2, Broadcast Management System -- [ * ]
Billing Only [ * ]
750-00032 Network Interface Unit, BDT (NIU3) [ * ]
750-00061 Network Interface Unit, BDT (NIU3) --
No Optics [ * ]
750-00011 Administrative Interface Unit, BDT (AIU) [ * ] BAC1290JAA
750-00030 Administrative Interface Unit, BDT (AIU2) [ * ]
750-00031 Administrative Interface Unit, BDT (AIU2)
w/DBP: incl. Tollgrade MCU [ * ]
660-00014 Power Supply, BDT (BDTPS) [ * ] BAPU670LAA
660-00089 Optical Distribution Unit, BDT (ODU2) [ * ]
820-00004 Fuse and Alarm Panel (FAP) [ * ]
780-50002 N3 View-1, Operational Support Software --
Media & Documentation [ * ]
780-50004 N3 View-2, Broadcast Management System --
Media & Documentation [ * ]
UNIVERSAL SERVICES ACCESS MULTIPLEXE--, EQUIPMENT
750-00045 Remote Terminal Shelf, USAM 1SL [ * ]
750-00059 Central Office/Customer Prem. Shelf, USAM [ * ]
750-00068 DS1 Expansion Shelf, USAM [ * ]
660-00180 Common Control, Optical Interface, USAM
Redundant (SMCCO) [ * ]
660-00080 Common Control, Optical Interface, USAM
Split Shelf (SMCCV) [ * ]
660-00181 Common Control, Electrical Interface,
USAM (SMCCE) [ * ]
660-00068 Power Supply, -48VDC, USAM (USMPS48) [ * ]
660-00115 Power Supply, 115VAC, VDSL USAM (USMP115) [ * ]
660-00132 Power Supply, 115VAC/-130VDC, RT USAM [ * ]
750-00044 Alarm & Test Unit, RT, USAM (SMATU) [ * ]
750-00070 Alarm & Test Unit, USAM (SMAUVDSL only) [ * ]
750-00072 Alarm & Test Unit, RT, W/DBP (SMATB) [ * ]
660-00144 DS1 Expansion Line Card -- 24 DS1 [ * ]
660-00142 DS1 Expansion Common Control Optical (IDLCC) [ * ]
660-00143 DS1 Expansion Power Supply [ * ]
750-00058 Administrative Access Panel, USAM (SMAP) [ * ]
Page 10 or 15
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO
THOSE INDIVIDUALS WHO HAVE A NEED TO KNOW.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
22
Agreement No.: 97050833
Product Schedule No.: Two
Exhibit: A
Dated: October 7, 1998
PRODUCT AND PRICE LIST
MGF'S P/N DESCRIPTION PRICE CLEI(TM) CODE
----------------------------------------------------------------------------------------------------------------
UNIVERSAL SERVICES ACCESS MULTIPLEXER-, PLUG-INS
----------------------------------------------------------------------------------------------------------------
660-00027 Dual VDSL Line Card, USAM (SMVD) [ * ]
660-00131 Dual (RADSL) Line Card, USAM [ * ]
660-00087 Hex POTS UVG/Coin Line Card, COT, USAM [ * ]
660-00075 Hex POTS UVG Line Card, RT, USAM (SMRTU) [ * ]
660-00088 Hex POTS Line Card, RT, USAM (SMRTP) [ * ]
660-00108 Hex Coin Line Card, RT, USAM [ * ]
660-00083 Hex Coin Line Card, COT, USAM (may be replaced with 660-00087) [ * ]
660-00129 Hex BRI Line Card, RT, USAM [ * ]
660-90006 Dual 2W FXO, RT/COT, USAM [ * ]
660-90002 Dual 2W FXS, RT/COT, USAM [ * ]
660-90001 Single 4W E&M, COT/RT USAM [ * ]
660-90003 Single 4W FX COT/RT, USAM [ * ]
660-90004 DSO Dataport, COT, USAM [ * ]
000-00000 XXX Xxxxxxxx, XX, XXXX [ * ]
660-00192 3-DS1 Line Card (triple), USAM [ * ]
000-00000 Quad P-Phone Line card - USAM RT [ * ]
000-00000 Quad P-Phone Line card - USAM COT [ * ]
660-00190 Dual DMT ADSL Line Card - USAM RT [ * ]
660-00191 Dual DMT G.Lite ADSDL Line Card - USAM RT [ * ]
----------------------------------------------------------------------------------------------------------------
FIBER TO THE CURB
----------------------------------------------------------------------------------------------------------------
METAL BNUS 1.5 POTS PER BB LINE
----------------------------------------------------------------------------------------------------------------
750-00001 BNU-8 enclosure with IDC blocks and stubs - ready for aerial [ * ]
750-00001 BNU-8 enclosure with IDC blocks and stubs - ready for pedestal [ * ]
750-00026 BNU-8 enclosure with IDC blocks and stubs - wall mount [ * ]
750-00002 BNU-16 enclosure with IDC blocks and stubs - ready for aerial [ * ]
750-00002 BNU-16 enclosure with IDC blocks - ready for pedestal [ * ]
750-00027 BNU-16 enclosure with IDC blocks - wall mount [ * ]
680-00077 BNU Power Supply (BNU-8 or BNU-16) [ * ] BAPU780LAA
680-00009 BNU Common Control w/ROH (BNU-8 or BNU-16) [ * ]
680-00012 BNU TIU2 -6 UVG POTS (BNU-8 or BNU-16) [ * ]
Page 11 of 15
CONFIDENTIAL. DISCLOSE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
23
Agreement No.: 97050833
Product Schedule No.: Two
Exhibit: A
Dated: October 7, 1998
PRODUCT AND PRICE LIST
MFG'S P/N DESCRIPTION PRICE CLEI(TM) CODE
---------- --------------------------------------------------- -------- -------------
680-00022 BNU PTIU - 6 POTS (BNU-8 or BNU-16) [ * ]
680-00017 BNU FXTIU2 - 6 FXS/UVG POTS [ * ]
680-00025 BNU CTIU2 - 1 COIN/5 UVG POTS [ * ] BAL8FG0BAA
680-00015 BNU BTIU2 - 1 BRI/ISDN/5 UVG POTS [ * ] BAL8FGHBAA
680-00019 Dual VDSL Broadband Interface Unit - (VDIUC) [ * ]
680-00020 Dual RADSL Broadband Interface Unit - (RADIUC) [ * ]
750-00066 BNU VDSL Coax adapter - BNU-16 only [ * ]
750-00065 BNU RADSL Coax adapter - BNU-16 only [ * ]
671-00030 BNU Connecter Assembly for TWP - BNU-16 Only [ * ]
Non-Metallic BNU with lightweight cassettes
750-00050 BNU1636 - ENCLOSURE (does not include BB protection
or composite stub [ * ]
750-00150 BNU1636 - ENCLOSURE with BB IDC's (does not include
composite stub [ * ]
750-00250 BNU1636 - ENCLOSURE with BB IDC's and
25' composite stub [ * ]
680-00176 BNU1636 VDSL BNU (VDIU) [ * ]
680-00177 BNU1636 Dual RADSL BIU (RADIU) [ * ]
680-00164 BNU1636 Common Control (CCU36) [ * ]
660-00199 BNU1636 Power Supply [ * ]
680-00104 TIU3 POTS 6 Line [ * ]
680-00105 TIU3 1 COIN/5POTS [ * ]
680-00106 TIU3 1 ISDN/5 POTS [ * ]
680-00159 Dual DS1 linecard: BNU1636 [ * ]
680-00117 TIU3 6 Line FXS/UVG [ * ]
Special Service Unit (SSU)
750-00005 SSU-2 Shelf & backplane with OSP cover [ * ]
660-00192 SSU-2 Common Control (DSL interface) [ * ]
660-00051 SSU-2 Power Supply [ * ]
750-00004 SSU-2 Common Control (Coax interface):
(Note - limited production for DC Ranch/Xxxxx [ * ]
671-00024 Kit, RPS Alarm Unit [ * ]
CUSTOMER PROMISE EQUIPMENT
750-00056 Residential Gateway, 3 MPEG decoders, with main remote [ * ]
750-00062 Auxiliary Remote Control [ * ]
Page 12 of 15
CONFIDENTIAL. Disclose and distribute solely to those
individuals who have a need to know.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
24
Agreement No.: 97050833
Product Schedule No.: Two
Exhibit: A
Dated: October 7, 1998
PRODUCT AND PRICE LIST
MFG'S P/N Description Price CLEI(TM) Code
--------- ----------------- -------- -------------
750-00064 Residential Gateway UHF receiver,kit [ * ]
750-00034 Etherset, VDSL [ * ]
750-00043 Etherset, RADSL [ * ]
750-00078 Etherset, DMT [ * ]
750-00079 Etherset, DMT Lite [ * ]
750-00033 Etherset, Coax: note DC Ranch & Xxxxx only [ * ]
671-90037 POTS Separation Filter, VDSL [ * ]
671-90038 POTS Separation Filter, RADSL/ADSL [ * ]
CABINETS AND ENCLOSURES
Xxxxxxxx Enclosure 12" Base [ * ] MD 8/98
Xxxxxxxx Enclosure 18" Base [ * ] MD 8/98
860-00022 Xxxxxxxx Enclosure w/bracket-24" base US WEST specified [ * ]
750-90001 2-3 Shelf Base Cabinet, includes; [ * ] replaces
rack, fan, baffles, fiber tray, door alarm, GFCI outlet, mounting
template; fully installed and tested (with shelves order
separately)
750-00035 4 Shelf VDSL Cabinet, includes; [ * ]
rack, fan, baffles, fiber tray, door alarm, GFCI outlet, mounting
template, AC load center, 4 100 pr. Cat. 5 protector panels, fan,
door alarm, fiber tray, sealed splice enclosure; fully installed
and tested with 4 shelves
750-90002 4 Shelf Base Cabinet, includes; [ * ]
rack, fan, baffles, fiber tray, door alarm, GFCI outlet, mounting
template; fully installed and tested (with shelves order
separately)
750-90003 6-8 shelf Base Assembly, includes; [ * ]
Heat Exchanger, sealed splice encl. rack, fan, baffles, fiber
tray, door alarm, GFCI outlet, mounting template; fully installed
and tested (with shelves order separately)
750-90004 12 shelf Base Cabinet includes; [ * ]
Heat Exchanger, sealed splice encl. rack, fan, baffles, fiber
tray, door alarm, GFCI outlet, mounting template; fully installed
and tested (with shelves order separately)
CABINET OPTIONS: ADD TO BASE CABINET (INSTALLATION INCLUDED IN BASE PRICE -
Siecor 100 Pr. Cat 3 (Telephony) Protector Panel [ * ]
Xxxxxx 000 Xx. Xxx 0 (XXXX) Xxxxxxxxx Xxxxx [ * ]
Millbank AC Load Center (VDSL or VDSL mix cabinets) [ * ]
Fiber FC Jumper cables (1 pr. per shelf requiring optical connection) [ * ]
Alpha 4810 Rectifier shelf with supervisory module [ * ]
Alpha 4810 550 V rectifier module [ * ]
GNB 90 Ahr. Battery String (4 per string) - may be replaced with JCI 90 Ahr. [ * ]
Page 13 of 15
CONFIDENTIAL, Disclose and distribute solely to those
individuals who have a need to know.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
25
Agreement No. 97050833
Product Schedule No.: Two
Exhibit: A
Dated: October 7, 1998
PRODUCT AND PRICE LIST
MFG'S P/N DESCRIPTION PRICE CLEI(TM) CODE
Battery Drawer (required for all -48V rectifier with battery Backup);
2-3 Shelf Battery Drawer [ * ]
4 Shelf Battery Drawer [ * ]
6-8 Shelf Battery Drawer [ * ]
12 Shelf Battery Drawer [ * ]
Battery Heater; per battery string [ * ]
POWER SYSTEMS
835-00410 Alpha Low Profile Double Wide RPS, 3600W, FPN 4010, Alpha [ * ]
USW configuration CDXX-GBA2 consisting of:
(1 ea.) 835-00047 Pad Mount FPN 4010 cabinet and bulk rail assembly
(8 ea.) 835-00034 RSM4810 550 W rectifier modules
(18 ea.) 835-00035 CSM 31 200 W DC/DC Converter Modules
(14 ea.) 835-00036 5/VA Limiter Modules
(1 ea.) 835-00010 3 string end battery Cable Kit
(3 ea.) 835-00037 battery heater & tray assembly
(1 ea.) 835-00046 3M 100X200X200 cross connect
(65 ea.) 835-00023 Lucent 5 pin gas tube protectors
(1 ea.) 890-00009 TBI pad mount steel anchor frame kit & documentation
(1 ea.) 835-00052 AC service entrance
(1 ea.) 835-00051 AC meter base
(1 ea.) 835-00053 AC Data surge protector
835-00310 Alpha Low Profile Pad Mount RPS, 1200W, FPN3010, Alpha U S W [ * ]
Configuration ZDZZ-GBA2, consisting of:
(1 ea.) 835-00044 Pad Mount FPN 3010 cabinet and bulk rail assembly
(4 ea.) 835-00034 RSM4810 550 W rectifier modules
(7 ea.) CSM 31 200 W DC/DC Converter Modules
(6 ea.) 835-00036 5/VA Limiter Modules
(1 ea.) 835-00011 3 string end battery Cable Kit
(3 ea.) 835-00037 battery heater & tray assembly
(1 ea.) 835-00039 3M 50X100 cross connect
(21 ea.) 835-00023 Lucent 5 pin gas tube protectors
Page 14 of 15
CONFIDENTIAL. Disclose and distribute solely to those
individuals who have a need to know.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
26
Agreement No: 97050833
Product Schedule No.: Two
Exhibit: A
Dated: October 7, 1998
PRODUCT AND PRICE LIST
--------------------------------------------------------------------------------
Mfg's P/N Description Price CLEI(TM) CODE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(1 ea.) 890-00009 TE1 pad mount steel
anchor frame kit & documentation
(1 ea.) 835-00052 AC service entrance
(1 ea.) 835-00051 AC meter base
(1 ea.) 835-00053 AC Data surge protector
000-00000 JCI Tel-12-105F 100 Ahr. Battery
(ea) -- requires 4 per string [ * ]
835-00034 RSM 4810 550 V rectifier modules [ * ]
835-00035 CSM 31 200 V DC/DC converter modules [ * ]
835-00036 5/VA limiter modules [ * ]
835-00043 Lucent 5 pin gas tube protectors [ * ]
Page 15 of 15
CONFIDENTIAL. Disclose and distribute solely to those individuals who have a
need to know
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portion.
