Exhibit 10.8.2
***PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[***]") OR OTHERWISE INDICATED
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Agreement No. ITC2000NPPA
Professional Services
Exhibit X
Xxxx 1 of 4
PROFESSIONAL SERVICES
Exhibit P
This Professional Services Attachment, Exhibit P, is attached to and made a part
of the Network Products Purchase Agreement dated November 8, 2000, between
ITC/\DeltaCom Communications, Inc., Interstate FiberNet, Inc., and Nortel
Networks, Inc. ("General Terms & Conditions"). The terms and conditions provided
below supplement the General Terms and Conditions only with respect to the
various telecommunication support Services set forth in this Exhibit P
(including any future Services that may be added to this Exhibit P)
("Professional Services Exhibit"). To the extent any of the terms and conditions
set forth in this Exhibit P conflict with any terms or conditions in the General
Terms & Conditions, the terms and conditions of this Exhibit P take precedence
over any such conflicting terms and conditions in the General Terms &
Conditions, as such terms and conditions apply to the Professional Services.
1. Term
This Professional Services Exhibit will be in effect for the Commitment Period
commencing on the Effective Date of the Agreement. ("Term").
2. Definitions
For the purposes of this Professional Service Exhibit, Services shall have the
same meaning as set forth in Exhibit A of the Agreement and shall also include
Professional Services which may be purchased from or provided by Nortel Networks
which are not described in a Product Exhibit or listed in the appropriate
schedule of same, but which are identified or described in a Statement of Work
attached to this Exhibit P.
(a) "Project Commencement Date" is the date on which Nortel Networks is to
begin performance of the Professional Service(s) as agreed to by the
parties as set forth in the applicable SOW and referenced in the Order
submitted by Buyer.
(b) Intellectual Property Rights or "IPR" are any and all rights in any
invention, discovery, improvement, utility model, copyright, industrial
design or mask work right, and any and all rights of whatever nature in
computer software and data, confidential information, trade secrets or
know-how, and any and all intangible rights and privileges of a nature
similar to any of the foregoing, in every case in any part of the world and
whether or not registered, and shall include all rights in any applications
and granted applications for any of the foregoing.
(c) "Materials" mean any and all engineering, designs, documentation and other
work product prepared by Nortel Networks and delivered to Buyer pursuant to
an Order (and specifically excluding Software).
(d) "Reoccurring Support Services" are Professional Services performed by
Nortel Networks on a regular basis to include but not be limited to
semi-annually or annually. Recurring Support Services include Remote
Maintenance, Network Management Services and other telecommunication
support Services.
(e) "Statement of Work" or "SOW" is a document, prepared and produced by Nortel
Networks, describing the activities, scope, schedule, prices, deliverables,
and other relevant terms specific to a Service, which may, from time to
time, be mutually agreed to in writing by Buyer and/or IFN Affiliate and
Nortel Networks. A Statement of Work shall be governed by the terms and
conditions of, and constitute a part of this Exhibit P.
3. Charges and Payment
Unless Buyer and/or IFN Affiliate elects the Services Payment Program described
in Schedule D, Exhibit K, Nortel Networks shall invoice Buyer and/or IFN
Affiliate for Services one hundred percent of the price of the Services Ordered
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
Professional Services
Exhibit X
Xxxx 2 of 4
upon completion unless the Service continues beyond thirty days, in which case
Nortel Networks shall invoice Buyer and/or IFN Affiliate at the end of each
month for the Services performed in that month. Recurring Support Services will
be invoiced monthly in advance. Buyer and/or IFN Affiliate agrees to reimburse
Nortel Networks for the actual cost of all reasonable and necessary travel and
living expenses, but excluding costs of wages and benefits during actual travel
time of Nortel Networks personnel ("T&L") incurred by Nortel Networks personnel
and/or approved contractors, during their performance of the Services plus a
[***] ([***]%) administrative fee. T&L expenses will only be incurred in
accordance with the Nortel Networks corporate guidelines for reimbursing such
expenses incurred by its employees, unless otherwise approved in writing by
Buyer and/or IFN Affiliate prior to incurrence of the expense. Buyer and/or IFN
Affiliate shall have no obligation to pay any T & L expense if such expense will
not otherwise be reimbursable to a Nortel Networks employee in accordance with
Nortel Network's T&L policies. Nortel Networks shall use reasonable efforts to
minimize T&L expenses, including, without limitation, seeking discounts in
travel and lodging arrangements, scheduling transportation and booking travel in
advance to obtain the best available discounted fares and fees, and sharing of
rental vehicles among Nortel Networks personnel providing the services.
Pricing for any Services not specified in this Professional Services Exhibit P
shall be provided on an as-quoted basis or in a Statement of Work. Nortel
Networks will provide quarterly reports to Buyer and/or IFN Affiliate for items
that are fixed fees charges and monthly for all items that are estimated
charges.
4. Changes to Orders and Order Cancellation
The parties may, by mutual agreement, make changes to the scope, content,
deliverables, Licensed Software specifications, schedule or other substantive
aspects of the Services ("Change"). The party requesting a Change shall prepare
a written "Change Order," specifying in adequate detail the requested Change,
and shall submit the Change Order to the other party for review and approval.
Nortel Networks shall provide in writing to Buyer and/or IFN Affiliate a
detailed summary of any and all additional charges resulting from the Change
Order. In no event shall any Change be effective or acted upon in any way until
such time as (i) an authorized representative of both parties has agreed to the
terms of the Change Order in writing and (ii) Nortel Networks receives an Order
from Buyer and/or IFN Affiliate for any additional amounts resulting from the
Change Order.
Unless otherwise set forth in a Statement of Work, in the event that Buyer
and/or IFN Affiliate cancels all or any part of an Order for Services, Buyer
and/or IFN Affiliate agrees to pay Nortel Networks a cancellation charge for the
Service(s) that have been cancelled in accordance with the following schedule
("Termination Charge"):
(a) 60 or more days prior to Project Commencement Date -> [***]
(b) 45-59 days prior to Project Commencement Date -> [***]% of Order amount
(c) 30-44 days prior to Project Commencement Date -> [***]% of Order amount
(d) 0-29 days prior to Project Commencement Date or at any time thereafter ->
[***]% of Order amount
In addition, Buyer and/or IFN Affiliate shall be responsible for any costs,
charges or expenses incurred by Nortel Networks under its arrangements with
third party vendors, licensors, lessors and/or contractors which are
non-cancellable or cancellable only upon payment of a penalty or charge. In
addition to the foregoing contract termination costs, in the event an Order is
cancelled by Buyer and/or IFN Affiliate after commencement of the work, Buyer
and/or IFN Affiliate shall pay all T&L, relocation expenses (provided the same
are pre-approved by Buyer and/or IFN Affiliate, and the lesser of (i) the
applicable Termination Charge or (ii) the cost of Nortel Networks for Services
by personnel and/or contractors provided prior to the date of termination, at
Nortel Networks standard hourly rates for such personnel and/or actual rates for
such contractors (including any applicable overtime pay).
Buyer and/ or IFN Affiliate may cancel Services after commencement of the work
under any Order, upon written notice to Nortel Networks. Upon receipt of such
notice, Nortel Networks shall direct its employees and contractors to
immediately cease all further work under such Order. To the extent any travel,
accommodation arrangements, materials or supplies ordered in connection with
such work may be canceled, Nortel Networks shall cancel the same and Buyer
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
Professional Services
Exhibit X
Xxxx 3 of 4
and/or IFN Affiliate shall be responsible for any cancellation fee or the amount
of any non-refundable payment or deposit.
5. Implementation
In the event that there are any delays by Buyer and/or IFN Affiliate in the
timely providing of facilities, access or information, or there are errors or
inaccuracies in the information provided, and such delays, errors or
inaccuracies require additions, corrections or modifications related to the
performance of the Services, Nortel Networks shall immediately notify Buyer of
the same and if Buyer does not take immediate action to cure such delay, then
any costs associated therewith shall be the responsibility of Buyer and/or IFN
Affiliate. Nortel Networks shall be entitled to appropriate schedule and
monetary adjustments resulting from such Buyer and/or IFN Affiliate delays,
errors or inaccuracies.
6. Intellectual Property Rights
Except as may be otherwise provided in a SOW, Nortel Networks, on behalf of
itself and its subcontractors, reserves all proprietary rights in and to (i) all
methodologies, designs, engineering details, and other data pertaining to the
Services and the Materials delivered, (ii) all original works, computer
programs, updates developed in the course of providing the Service (except Buyer
and/or IFN Affiliate's developed programs), (iii) discoveries, inventions,
patents, know-how and techniques arising out of the Services and (iv) any and
all products (including software and equipment) developed as a result of the
Services. Except as may be otherwise provided in a SOW, the performance by
Nortel Networks of Services shall not be deemed work for hire.
Nortel Networks grants to Buyer and/or IFN Affiliate a perpetual, non-exclusive,
world-wide, paid up license to use, copy and modify the Materials produced by
Nortel Networks and delivered to Buyer and/or IFN Affiliate in the performance
of Services solely for Buyer and/or IFN Affiliate's internal business purposes.
Notwithstanding the foregoing, the parties agree that any individual item of
intellectual property (e.g., patent, copyright, trade secret) arising during and
as a result of the performances of the Services having authors or inventors
common to both parties shall be jointly owned, provided that neither party shall
have any obligation to account to the other for any use it makes of such jointly
owned intellectual property.
For greater certainty nothing in this Section 6 shall be construed as entitling
Nortel Networks to make any use, other than in connection with the performance
of Services hereunder, of any Confidential Information of Buyer and/or IFN
Affiliate or any materials, which disclose Buyer and/or IFN Affiliate's
Confidential Information regardless of the form in which such Confidential
Information may be recast.
7. Warranty
Warranty for Services provided hereunder shall be as defined in Section 1 of
Exhibit D1 of the General Terms and Conditions. Services shall be performed in a
professional and workmanlike manner. Buyer and/or IFN Affiliate shall notify
Nortel Networks in writing within [***] ([***]) days of the date of completion,
installation or delivery of the entire Services under an Order as applicable of
any breach by Nortel Networks of this Warranty. If Services are not performed as
warranted, Nortel Networks will re-perform the defective Services, as
applicable. Except as set forth in Article 13, Disclaimers of Warranties and
Remedies, of the General Terms and Conditions, the foregoing shall be Nortel
Networks' sole obligation and Buyer and/or IFN Affiliate's sole remedy in
connection with any defective Services.
Nortel Networks represents and warrants that all information of third parties
obtained in connection with the Services and/or provided to Buyer and/or IFN
Affiliate pursuant to a SOW have been lawfully obtained by Nortel Networks and
Nortel Networks has the unrestricted right to disclose the same to Buyer and/or
IFN Affiliate.
8. General
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
Professional Services
Exhibit X
Xxxx 4 of 4
In the event of a conflict between this Professional Services Exhibit P and the
terms contained in a Statement of Work, the terms in the Statement of Work which
is agreed by the Parties in writing and attached to the Agreement shall prevail
for the Services being performed under such Statement of Work. Nortel Networks
will perform Services either remotely or at the Buyer's and/or IFN Affiliate's
location as mutually agreed upon. Services will generally be performed during
Buyer and/or IFN Affiliate's business hours, from 8:00 a.m. until 5:00 p.m. from
Monday through Friday, excluding Nortel Network's standard holidays ("Normal
Business Hours").
9. Pricing and Available Services
The description, responsibilities of the parties, and price for the performance
of Professional Services shall be as set forth in an attached Statement of Work.
ITC/\DELTACOM COMMUNICATIONS, INC. NORTEL NETWORKS INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------- --------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxxxxx
------------------------------------ ------------------------------
Title: VP Engineering and Planning Title: RVP, Southeast
----------------------------------- -----------------------------
Address: See General Terms and Conditions Address:
--------------------------------- ---------------------------
Date: 3/27/01 Date: 3/30/01
------------------------------------ ------------------------------
INTERSTATE FIBERNET, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
------------------------------------
Title: VP Engineering and Planning
-----------------------------------
Address: See General Terms and Conditions
---------------------------------
Date: 3/27/01
------------------------------------
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
