1
Ex. 10.20
GENERAL AGREEMENT # 98005906
SBC OPERATIONS, INC. (BUYER)
&
WORLD WIDE TECHNOLOGY, INC. (SELLER)
INDEX
PAGE PAGE
---- ----
32. Acceptance-Entire Agreement 2 63. Limitation of Liability 18
33. Access 2 64. Material Reliability 18
34. Affiliates 3 65. Xxxxxxxxxxxx 00
00. Amendments and Waivers 3 66. MBE/WBE-DVBE Participation Plans and
36. Assignment 4 Reports 19
37. Bar-coding 4 67. MME/WBE/DVBE CANCELLATION CLAUSE 19
38. Breach of Agreement 4 68. Non-Exclusive Market Rights 20
39. Cancellation and Termination 4 69. Non-Waiver 21
40. Changes and Suspensions 6 70. Notices 21
41. Complaints 6 71. Order Acknowledgment 21
42. Compliance With Laws 7 72. Plant and Work Rules 22
43. Conflict of Interest 7 73. Publicity 22
44. Continuing Availability 7 74. Purchase Orders 22
45. Cure 8 75. Quality Assurance 23
46. Disaster Availability 8 76. Records and Audits 25
47. Electronic Data Interchange (EDI) 8 77. Xxxxxxxxxxxx 00
00. Entire Agreement 9 78. Releases Void 26
49. Force Majeure 9 79. Severability 26
50. Governing Law 10 80. Software Risk of Loss 26
51. Government Contract Provisions 10 81. Survival of Obligations 26
52. Hazardous Materials and Regulated 82. Taxes 27
Substances 10 83. Technical Support 28
53. Independent Contractor 12 84. Termination 28
54. Information 13 85. Terms of Agreement 28
55. Infringement 14 [* Confidential treatment requested]
56. Insignia 15 87. Title and Risk of Loss 28
57. Installation/Cutover Assistance 16 88. Universal Design 29
58. Insurance 16 [* Confidential treatment requested]
59. Liability 17 90. Work Done By Others 30
60. Licenses 17 91. Year 2000 Warranty 30
61. License Fee 18
62. License Term 18
Exhibit A Executive Orders and Associated Regulations
Exhibit A1 Seller's M/WBE-DVBE Plan
Exhibits B Buyer's Purchase Order
Exhibit B1 Results Reports
Exhibits C OEM Insurance
Exhibit D QPS Document if Applicable
*Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
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AGREEMENT #98005906
TERMS AND CONDITIONS
GENERAL AGREEMENT
SBC OPERATIONS, INC. (BUYER)
000 X. Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
And
WORLD WIDE TECHNOLOGY, INC. (WWT-SELLER)
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
PREAMBLE
This Agreement effective upon the date of execution by the last party, is
between SBC Operations, Inc. (BUYER) a Delaware corporation, for itself and its
affiliated companies (hereinafter Buyer) and World Wide Technology, Inc.
(Seller), a Missouri corporation. This Agreement outlines the general terms and
conditions for the provision of Material/ Services by Seller to Buyer. Specific
contracts for the purchase of Material/Services will be as negotiated between
Buyer and Seller. Such subordinate contracts to this General Agreement
(98005906) shall incorporate all the terms and conditions of this General
Agreement unless specifically addressed otherwise in such subordinate contracts.
Buyer and Seller agree that the term "Buyer" includes any of Buyer's affiliates,
and the term "Seller" shall mean either World Wide Technology, Inc. or its
Original Equipment Manufacturer (OEM) supplier, as applicable.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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AGREEMENT #98005906
TERMS AND CONDITIONS
ACCEPTANCE--ENTIRE AGREEMENT
Acceptance of this offer to purchase by acknowledgment, shipment or other
performance will be unqualified, unconditional and subject and expressly limited
to the terms and conditions of this Agreement. All previous offers by Seller are
hereby rejected and Buyer will not be bound by terms additional to or different
from those contained herein that may appear in Seller's quotation,
acknowledgment, invoice or in any other communication from Seller, unless such
terms are expressly agreed to in a written instrument signed by Buyer.
Acceptance of MATERIAL or services, payment or any inaction by Buyer will not
constitute Buyer's consent to or acceptance of any such additional or different
terms, nor will estimates furnished by Buyer constitute commitments.
Upon acceptance, the terms contained in this Agreement will constitute the
entire agreement between Seller and Buyer with regard to the subject matter
hereof and supersede all prior oral and written communications, agreements and
understandings of the parties, if any, with respect thereto. THIS AGREEMENT MAY
NOT BE MODIFIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED ON BEHALF OF BOTH PARTIES
BY THE REPRESENTATIVES WHO SIGN THIS AGREEMENT OR THEIR SUCCESSORS IN TITLE AND
AUTHORITY. If either representative is no longer employed by Buyer/Seller or has
been demoted, or if the approval level no longer exists, a manager at a level
equal to or exceeding the original level must execute revisions to this
Agreement.
This Agreement may be executed in one (1) or more counterparts, all of which
will constitute one and the same instrument.
ACCESS
Buyer's Premises:
1. Seller shall when appropriate have reasonable access to Buyer's premises
during normal business hours and at such other times as may be agreed upon
by the parties in order to enable Seller to perform its obligations under
this Agreement. Seller shall coordinate such access with Buyer's designated
representative prior to visiting such premises. Seller assures Buyer that
only persons employed by Seller or subcontractor by Seller will be allowed
to enter Buyer's premises. If Buyer requests Seller or its Subcontractor
to discontinue furnishing any person provided by Seller or its
Subcontractor from performing work on Buyer's premises, Seller shall
immediately comply with such request. Such person shall leave Buyer's
premises promptly and Seller shall not furnish such person again to perform
work on Buyer's premises without Buyer's written consent.
2. Buyer may require Seller or its subcontractor employees to exhibit
identification credentials, which Buyer may issue in order to gain access
to Buyer's premises for the
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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AGREEMENT #98005906
TERMS AND CONDITIONS
performance of Services hereunder. If, for any reason, any Seller's or
Seller's subcontractor employees are no longer performing such Services,
Seller shall immediately inform Buyer. Notification shall be followed by
the prompt delivery to Buyer of the identification credentials, if issued
by Buyer, or a written statement of the reasons why said identification
credentials cannot be returned.
3. Seller shall ensure that its personnel and subcontractor perform work which
conforms to Buyer's practices and handbooks to protect Material, buildings
or structures and to Perform Services with care and due regard for the
safety, convenience and protection of Buyer, its employees and property,
and members of the public.
4. In the event of theft or loss of property attributable to Seller, Seller
shall replace the property and/or reimburse Buyer for replacement value of
the item.
5. Seller shall be responsible for ensuring that all persons furnished by
Seller work harmoniously with all others when on Buyer's premises.
AFFILIATES
Seller agrees that an Affiliate may place Orders with Seller which incorporate
the terms and conditions of this Agreement, and that the term "Buyer" shall be
deemed to refer to an Affiliate when an Affiliate places an Order with Seller
incorporating the terms and conditions of this Agreement. An Affiliate will be
responsible for its own obligations, including but not limited to, all charges
incurred in connection with such Order. The parties agree that nothing in this
Agreement will be construed as requiring Buyer to indemnify Seller, or to
otherwise be responsible, for any acts or omissions of an Affiliate, nor shall
anything in this Agreement be construed as requiring an Affiliate to indemnify
Seller, or to otherwise be responsible, for the acts or omissions of Buyer.
The parties agree that the term "Affiliate" includes (1) a company, whether
incorporated or not, which owns, directly or indirectly, a majority interest in
either party (a "parent company"), and (2) a company, whether incorporated or
not, in which a 5% or greater interest is owned, either directly or indirectly,
by: (i) a party to this Agreement, or (ii) a parent of a party to this
Agreement."
AMENDMENTS AND WAIVERS
This Agreement may be amended or modified only by a written document signed by
the authorized representative of the party against whom enforcement is sought.
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement shall be construed as a general waiver or
relinquishment of such term, right or condition. Waiver by either party of any
default shall not be deemed a waiver of any other default.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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AGREEMENT #98005906
TERMS AND CONDITIONS
ASSIGNMENT
Neither party hereto may assign, subcontract or otherwise transfer it's rights
or obligations under this Agreement except with the prior written consent of the
other party hereto, which consent will not be unreasonably withheld; provided,
however, Buyer will have the right to assign this Agreement to any present or
future AFFILIATE, SUBSIDIARY OR PARENT CORPORATION of the Buyer, without
securing the consent of Seller and may grant to any such assignee the same
rights and privileges Buyer enjoys hereunder. Any attempted assignment not
assented to in the manner prescribed herein, except an assignment confined
solely to money due or to become due, will be void. It is expressly agreed that
any assignment of money will be void if (a) Seller fails to give Buyer at least
thirty (30) days prior written notice thereof, or (b) such assignment imposes or
attempts to impose upon Buyer additional costs or obligations in addition to the
payment of such money or (c) denies, alters or attempts to alter any of Buyer's
rights.
BAR-CODING
Seller and/or its OEM supplier is committed to work with Buyer to incorporate
barcoding of equipment and shipping containers and packages, as a standard
requirement for doing business with Buyer. Seller and/or its OEM supplier shall
adhere to the guidelines and specifications set forth by the Telecommunications
Industry Forum (TCIF), tailored by Buyer, as industry standards are established
through the TCIF for the expanded application of bar-coding.
BREACH OF AGREEMENT
In the event Seller is in breach or default of any term, condition or covenant
of this Agreement, and said breach or default continues for a period of ten (10)
days after the giving of written notice thereof, then, in addition to all other
rights and remedies available at law or in equity, Buyer will have the right to
cancel this Agreement.
CANCELLATION AND TERMINATION
1. Cancellation for Default:
a. If Seller is in material default of any of its obligations under this
Agreement or applicable Orders and such default continues for ten (10)
days after written notice thereof is given by Buyer, then in addition
to all other rights and remedies, at law or in equity, Buyer may
cancel this Agreement and/or any Orders which may be affected by such
default without any obligation or liability on the part of Buyer
whatsoever.
b. Notwithstanding this paragraph "1", additional provisions for
Cancellation of Orders hereunder are set forth in this Agreement.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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AGREEMENT #98005906
TERMS AND CONDITIONS
c. Buyer shall have the right to retain or return any Material already
received and accepted; provided, however, if Buyer elects to return
any Material, Seller shall reimburse Buyer the cost of shipping any
returned Material and amounts, if any, previously paid by Buyer for
such Material. Seller shall bear all expenses for removal and return
of such Materials.
2. Cancellation and Termination of Orders:
a. Cancellation:
If Buyer cancels any Order or rejects any Materials pursuant to any
provision of this Agreement or applicable Laws and Regulations, Seller
shall, at Buyer's request, but at its expense, promptly remove the
affected Materials from Buyer's site, restore Buyer's site to its
original condition, refund to Buyer any amounts previously paid by
Buyer for such Materials and reimburse Buyer for any costs Buyer
occurred to remove and return such Materials. Upon removal and
restoration of the Material and Buyer's receipt of any such
reimbursement and refund, title to any such Materials which had
previously passed to Buyer shall revert to Seller.
b. Termination:
Materials/Services: Buyer may at any time terminate any Order in whole
or in part upon written notice to Seller. In such event, Seller shall
be entitled to reasonable Termination charges consisting of its actual
and direct costs incurred to provide the Materials and Services
ordered by Buyer but no more than a percentage of the work performed
or Materials delivered prior to Termination, minus salvage or resale
value of the work terminated. If requested, Seller agrees to
substantiate such costs with proof satisfactory to Buyer. In no event
shall the Termination charges on any Order hereunder exceed the Order
price. No Termination charges shall apply to Materials not specially
manufactured for Buyer pursuant to any Order which is terminated at
least thirty (30) days prior to the required delivery date. Buyer
shall not be responsible for any work performed nor for any costs
incurred by Seller, Seller's Sellers, or Seller's subcontractors after
Seller has received the notice of Termination. After the receipt of
Buyer's payment for any such terminated Services, Seller shall deliver
the physical embodiments, if any, of such Services which have been
completed up to the date of Buyer's Termination. The foregoing
Termination charges state the entire liability of Buyer for
Termination for convenience by Buyer of any Order hereunder.
3. Partial Cancellation and Termination:
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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AGREEMENT #98005906
TERMS AND CONDITIONS
Where a provision of this Agreement or the applicable Laws and Regulations
permit Buyer to Terminate or Cancel an Order, such termination or
cancellation may, at Buyer's option, be either complete or partial. In the
case of a partial Termination or Cancellation Buyer may, at its option,
accept a portion of the Materials or Services covered by an Order and pay
Seller for such Materials or Services at the unit prices set forth in such
Order. The right to cancel an Order shall also include the right to cancel
any other related Order.
CHANGES AND SUSPENSIONS
a) Buyer may give notice to Seller at any time before complete delivery is
made under any Order, or make changes within the general scope of such
Order, including changes to quantities, drawings, designs or
specifications. In addition, Buyer may, by notice to Seller, suspend, in
whole or in part, the delivery of Materials and the performance of
Services. If Buyer directs any such
b) change or suspension, the parties shall agree upon any necessary
adjustments in prices or dates and Buyer shall issue a revised Order
reflecting such adjustments.
c) Seller and/or its OEM supplier may not, without Buyer's prior written
consent, make any changes whatsoever with respect to the Materials or
Services specified in any Order.
COMPLAINTS
Buyer reserves the right to notify Seller in cases where Buyer has identified
current or potential problems or service area concerning the operation,
maintenance, engineering, installation or design of Material furnished
hereunder. Whenever Buyer exercises such right, Seller and/or its OEM supplier
agrees to:
(a) Accept such notice (hereinafter referred to as an "Engineering Complaint")
and handle it in accordance with Xxxx Communications Research, Inc.
("Bellcore") Generic Requirements GR-230-CORE entitled "Generic
Requirements for Engineering Complaints".
(b) Acknowledge receipt of such Engineering Complaint and advise Buyer of
Seller's proposed organization responsible for resolving it within ten (10)
working days of Seller's receipt thereof.
(c) Resolve such Engineering Complaints within ninety (90) days calendar days
of the date of Buyer's notice, unless the parties mutually agree upon a
later date. If unable to resolve an Engineering Complaint within said
ninety (90)-day period, Seller will issue an "interim report" as defined in
GR-230-CORE. Any revisions, amendments, and or successors to GR-230-CORE
will become effective and thereafter applicable under this
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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AGREEMENT #98005906
TERMS AND CONDITIONS
Agreement thirty (30) days after such revision is released by Buyer to
Seller. Buyer and Seller will attempt to negotiate a resolution to any
objections of said revisions by Seller.
(d) Furnish to Buyer a monthly report of the status of open Engineering
Complaints, in a mutually agreed upon medium, together with a proposed
schedule for their resolution.
(e) Notify Buyer in writing when an Engineering Complaint has been resolved.
COMPLIANCE WITH LAWS
Seller and/or its OEM supplier shall comply with the provisions of the Fair
Labor Standards Act, the Occupational Safety and Health Act and all other
applicable federal, state, county and local laws, ordinances, regulations and
codes, including, but not limited to, the procurement of permits, certificates,
approvals, inspections and licenses when needed, in the performance of this
Agreement. Seller and/or its OEM supplier further agrees, during the term
hereof, to comply with all applicable Executive and Federal regulations as set
forth in "Executive Orders and Associated Regulations", a copy of which is
attached hereto as Exhibit A, and by this reference made a part hereof. Seller
and/or its OEM supplier shall defend, indemnify and hold Buyer harmless from and
against any loss, damage, liability or expenses (including attorneys' fees and
court costs) that may be sustained by reason of Seller's failure to comply
herewith.
CONFLICT OF INTEREST
Seller represents and warrants that no officer, director, employee or agent of
Buyer has been or will be employed, retained or paid a fee, or otherwise has
received or will receive any personal compensation or consideration, by or from
Seller or any of Seller's officers, directors, employees or agents in connection
with the obtaining, arranging or negotiation of this Agreement or other
documents or agreements entered into or executed in connection herewith.
CONTINUING AVAILABILITY
a) Seller and/or its OEM supplier agrees to offer to sell to Buyer for a
period of ten (10) years after the Termination, Cancellation or expiration
date of this Agreement, functionally equivalent additions/modifications,
maintenance, replacement, and technical support services.
b) If Seller fails or is unable to supply such parts or obtain another source
of supply for Buyer, then such inability shall be considered noncompliance
with this Section and, in addition to whatever other rights and remedies
Buyer may have at law or in equity, Seller shall be obligated to provide
Buyer, without obligation or charge, the "technical information" or any
other rights required so that Buyer can have manufactured or can obtain
such parts from other sources.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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AGREEMENT #98005906
TERMS AND CONDITIONS
c) The "technical information" includes, by example and not by way of
limitation:
1) manufacturing drawings and Specifications of raw materials and
components comprising such parts;
2) manufacturing drawings and Specifications covering special tooling and
the operation thereof,
3) a detailed list of all commercially available parts and components
purchased by Seller, disclosing the part number, name and location of
the supplier and price lists for the purchase thereof.
d) Seller shall provide support for System Software or System Software
Features provided under this Agreement. In the event Seller refuses to
provide support then Seller shall grant to Buyer a non-exclusive license,
without charge, to use such System Software programs, System Software
documentation and/or System Software tools and other technical information
as may be required for the purpose of so maintaining the System Software
and to provide for network compatibility.
e) Seller shall provide Buyer advance written notification no later than two
(2) years prior to the discontinuance of the manufacture or the provision
of any Material hereunder.
CURE
Buyer will not be deemed to be in default under any of the terms of this
Agreement, and Seller may not seek or attempt to enforce any remedy for any
claimed default, unless Buyer fails to cure or correct same within ten (10) days
following receipt of written notice thereof from Seller.
DISASTER AVAILABILITY
If any Material are rendered inoperative as a result of a Force Majeure
emergency, Seller shall make all reasonable efforts to supply or help locate
backup or replacement Material for Buyer's use. To the extent reasonable, Seller
agrees to waive any delivery lead time requirements and to the extent permitted
by law make replacement Material available from the facility currently producing
such Material or from inventory. The price for any replacement Material will be
at the current price and cost of expedited shipment. Buyer shall retain the
right to accept or reject any offer by Seller to supply any replacement
Material.
ELECTRONIC DATA INTERCHANGE (EDI)
Each party hereto may electronically transmit to or receive Orders,
acknowledgments, invoicing documents or other documents mutually agreed to by
Buyer and Seller, pursuant an EDI Agreement. The parties agree that Data
mechanically stored by either party in the course of
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
business shall constitute acceptable documentation of the contents of the Data
electronically transmitted by originating party.
ENTIRE AGREEMENT
1. Acceptance of this Agreement with respect to the subject matter to purchase
by acknowledgment, shipment or other performance will be unqualified,
unconditional and subject and expressly limited to the terms and conditions of
this Agreement. All previous offers by Seller are hereby rejected and Buyer will
not be bound by terms additional to or different from those contained herein
that may appear in Seller's quotation, acknowledgment, invoice or in any other
communication from Seller, unless such terms are expressly agreed to in a
written instrument signed by Buyer. Acceptance of MATERIAL or Services, payment
or any inaction by Buyer will not constitute Buyer's consent to or acceptance of
any such additional or different terms, not will estimates furnished by Buyer
constitute commitments. The provisions of this Agreement supersede all prior
oral and written quotations, communications, agreements and understandings of
the parties, if any, with respect to the subject matter hereof.
2. The terms contained in this Agreement, and any Orders, including all
exhibits and subordinate documents attached to or referenced in the
Agreement or any Orders, will constitute the entire agreement between
Seller and Buyer with regard to the subject matter hereof and supersede all
prior oral and written communications, agreements and understandings of the
parties, if any, with respect hereto. This Agreement may not be modified
except by a written instrument signed on behalf of both parties by the
representatives who sign this Agreement or their successors in title and
authority.
If either representative is no longer employed by Buyer/Seller or has been
demoted, or if the approval level no longer exists, a manager at a level equal
to or exceeding the original level must execute revisions to this Agreement.
FORCE MAJEURE
Neither party hereto will be held responsible for any delay or failure in
performance of any part of this Agreement to the extent that such delay or
failure is caused by fire, flood, explosion, war, strike, embargo, government
requirement, civil or military authorities, Act of God or by the public enemy,
acts or omissions of carriers, or any other cause beyond the control of Seller
or Buyer. If any force majeure condition occurs, the party delayed or unable to
perform will give immediate notice thereof to the other party and the party
affected by the other's inability to perform may elect to:
(a) Terminate this Agreement or any Order or part of either as to MATERIAL
not already shipped or services not already performed.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
(b) Suspend this Agreement for the duration of the force majeure
condition, buy or sell elsewhere MATERIAL to be bought or sold
hereunder, and deduct from any commitment the quantity bought or sold
or for which such commitments have been made elsewhere.
(c) Resume performance hereunder once the force majeure condition ceases
with an option in the affected party to extend the term of this
Agreement up to the length of time the force majeure condition
endured.
Unless written notice to the contrary is given within thirty (30) days after
such affected party is notified of the force majeure condition, option (b) above
will be deemed selected.
GOVERNING LAW
a. IF A DISPUTE INVOLVES SOLELY PACIFIC XXXX OR AFFILIATES WITH THEIR
PRINCIPAL PLACE OF BUSINESS IN CALIFORNIA, THE DISPUTE SHALL BE
GOVERNED BY THE LAWS OF CALIFORNIA EXCLUSIVE OF ITS CHOICE OF LAWS
PROVISIONS. IN ALL OTHER CASES, THE LAWS OF THE STATE OF MISSOURI
SHALL APPLY EXCLUSIVE OF ITS CHOICE OF LAWS PROVISIONS.
b. THIS AGREEMENT SHALL BE CONSIDERED COMPLETED, ENTERED INTO, AND
EXECUTED IN CALIFORNIA ON BEHALF OF PACIFIC, IN MISSOURI, ON BEHALF OF
SWBT, AND WITH RESPECT TO AN AFFILIATE OTHER THAN PACIFIC OR SWBT, IN
THE STATE IN WHICH THE AFFILIATE HAS ITS PRINCIPAL PLACE OF BUSINESS,
WITHOUT REGARD TO ITS RULES REGARDING CONFLICTS OF LAW.
GOVERNMENT CONTRACT PROVISIONS
Orders containing a notation that the material is intended for use under
government Agreements shall be subject to the then current government provisions
referenced in or attached to such Orders.
HAZARDOUS MATERIALS AND REGULATED SUBSTANCES
A "Regulated Substance" as referenced in this clause is a generic term used to
describe all materials that are regulated by the federal or any state or local
government during transportation, handling and/or disposal.
This includes, but is not limited to, materials that are regulated as (a)
"hazardous materials" under the Hazardous Materials Act and the Control of
Radioactive Contamination of the Environment Law, Title 8 of the California
Administrative Code, Section 5194, pursuant to the
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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Hazardous Substances Information and Training Act, (b) "chemical hazards" under
Occupational Safety and Health Administration (OSHA) standards, (c) "chemical
substances or mixtures" under the Toxic Substances Control Act, (d) "pesticides"
under the Federal Insecticide, Fungicide and Rodenticide Act, and (e) "hazardous
wastes" as defined or listed under the Resource Conservation and Recovery Act
and the Hazardous Waste Control Law.
a. Seller and/or its OEM supplier shall comply with all applicable
federal, state and local laws, ordinances, codes, regulations and
orders, including any notice requirements (individually and
collectively "Laws and Regulations"), regarding any Material and
Service ordered hereunder which involves the handling or use of
Materials or materials which consist of or contain "hazardous
materials" or "chemical hazards" or "chemical substances or mixtures"
or "pesticides" or "hazardous wastes". Seller shall notify Buyer and
provide to Buyer all necessary notification and other information
(including but not limited to OSHA Material Safety Data Sheets) at
least thirty (30) days before shipping such Regulated Substances to
Buyer or commencing the performance of Services for Buyer involving
the handling or use of Regulated Substances.
b. Notwithstanding any other provisions of this Agreement, Buyer shall
have the right, but not the duty, to terminate without liability any
Order for Materials or Services which involves the handling or use of
Regulated Substances within thirty (30) days after such notification
from Seller. Otherwise, Buyer and Seller shall cooperate concerning
the acceptance by Buyer of such Regulated Substances. Seller shall
xxxx all Materials and/or materials provided hereunder as Regulated
Substances which are required by all applicable Laws and Regulations
to be so marked, and shall provide assistance to Buyer of an advisory
nature in the handling or use of Regulated Substances provided
hereunder and the disposal of "hazardous wastes", as defined by
applicable Laws and Regulations ("Hazardous Wastes"), resulting
therefrom.
c. Regulated Substances and/or Hazardous Wastes provided or removed
hereunder shall be transported by Seller in accordance with the
requirements of the applicable Laws and Regulations, including, but
not limited to, those of the Department of Transportation and
California Highway Patrol, governing transportation of such Regulated
Substances and/or Hazardous Wastes.
d. Seller and/or its OEM supplier shall provide Buyer with the same
information pertaining to Materials and Services which involve the
handling or use of Regulated Substances or Hazardous Wastes as Seller
provides to Seller's employees or agents involved in the disposition
or treatment of such Regulated Substances or Hazardous Wastes.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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e. Seller and/or its OEM supplier further agrees to defend indemnify and
hold Buyer harmless from and against any damage, or expense (including
attorneys' fees and court costs) sustained by Buyer because of
Seller's noncompliance herewith.
INDEPENDENT CONTRACTOR
Seller hereby represents and warrants to Buyer that:
a. Seller is engaged in an independent business and will perform all
obligations under this Agreement as an independent contractor and not as the
agent or employee of Buyer;
b. Seller's personnel performing Services shall be considered solely the
employee personnel of Seller and not employees or agents of Buyer,
c. Seller has and retains the right to exercise full control of and
supervision over the performance of the Services and full control over the
employment, direction, assignment, compensation, and discharge of all personnel
performing the Services;
d. Seller is solely responsible for all matters relating to the payment of
compensation, including payment of premium pay for overtime, of all Seller's
personnel who perform Services. Seller will pay all employee compensation and
related taxes and benefits from its own accounts, without regard to any dispute
concerning Buyer's liability for payment to Seller under any invoice related to
any Service performed by Seller;
e. Seller is solely responsible for all matters relating to compliance with
all employer obligations to withhold employee taxes, pay employee and employer
taxes, and file payroll tax returns and information returns under local, state,
and federal income tax laws, unemployment compensation insurance and state
disability insurance tax laws, and social security and Medicare tax laws, and
all other payroll tax laws or similar laws (all collectively hereinafter
referred to as "payroll tax obligations") with respect to all Seller personnel
providing Services.
f. If any federal, state, or local authority including but not limited to
taxing authority may claim that Buyer or any subsidiary of Buyer is or may be
liable an account of any payroll, payroll tax, or benefit plan obligations,
including the payment of interest or penalties, with respect to any such Seller
personnel, then Seller shall:
(1) cooperate fully in Buyer's defense of such claim; and (2)
discloses its income tax returns, payroll tax returns,
information returns and transmittals, and associated payment
deposits records, canceled checks and instruments, and other such
documents reasonably necessary to enable Buyer to perfect its
defense of such claims; and
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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(2) Executes and deliver such powers of attorney or other consents as
may be necessary to enable Buyer to obtain copies of such returns
and other documents from the taxing and other authorities that
are appropriate or helpful in order to prove compliance with tax
and other legal requirements.
(3) indemnifies and holds Buyer harmless from any cost, loss damage
or expense, including taxes as well as any interest or penalties;
g. Seller is and will respond as the employer of all Seller personnel,
exclusive of Buyer, for purposes of any federal, state, or local taxes, benefits
and unemployment insurance law. Seller will indemnify and hold Buyer harmless
from any claim that Buyer's reserve account should be taxed to provide
unemployment compensation to any Seller personnel or former Seller personnel
based upon Services provided to Buyer under this Agreement;
h. If any Seller personnel makes a claim for employee benefits under any
Buyer employee benefit plan or for workers' compensation against Buyer, then
Seller will indemnify and hold harmless Buyer from any such claim, including any
and all costs an expenses, including interest and penalties;
i. Seller's employee benefit, plans and self-employed benefit plans will
credit Seller's personnel with all for time worked on Buyer assignments and all
compensation earned on Buyer assignments for plan participation purposes,
vesting purposes, and benefit accrual purposes, on the same basis as they credit
time worked on other assignments; and
j. Seller will be responsible to its own acts and those of Seller's
personnel during the performance of Seller's obligations under this Agreement.
INFORMATION
INFORMATION - BUYER'S
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical or business information or data, field
trials results and/or reports, written, oral or otherwise (all hereinafter
designated in this clause as "information") furnished to Seller under this
Agreement or in contemplation of this Agreement, shall remain Buyer's property.
All copies of such information, in written, graphic or other tangible form,
shall be returned to Buyer at Buyer's request. Unless such information was
previously know to Seller free of any obligation to keep it confidential, or has
been or is subsequently made public by Buyer or a third party, it shall be kept
confidential by Seller, shall be used only in performing under this Agreement,
and may not be used for other purposes except such terms as may be agreed upon
between Seller and Buyer in writing.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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INFORMATION - SELLER'S
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical or business information or data, field
trials results and/or reports, written, oral or otherwise (all hereinafter
designated in this clause as "information") furnished to Buyer under this
Agreement or in contemplation of this Agreement, shall remain Seller's property.
No information furnished by Seller to Buyer hereunder or in contemplation hereof
shall be considered to be confidential or proprietary unless it is conspicuously
marked as such.
If Seller provides Buyer with any proprietary or confidential information which
is conspicuously marked as such, Buyer shall use the same degree of care to
prevent its disclosure to others as Buyer uses with respect to its own
proprietary or confidential information. Notwithstanding the preceding
sentences, no installation, operations, repair or maintenance information of
Seller which pertains to the Material and Services which are the subject of this
Agreement shall be considered to be proprietary or confidential, and Buyer may
disclose such information to others for the purpose of installing, operating,
repairing, and maintaining the Material for which it was initially furnished.
INFRINGEMENT
1. Seller and/or its OEM supplier agrees to indemnify and hold Buyer harmless
from and against any loss, liability, damage or expense (including
increased damages for willful infringement, punitive damages, attorneys'
fees and court costs) that may result by reason of any infringement, or
claim of infringement, of any trade secret, patent, trademark, copyright or
other proprietary interest of any third party based on the normal use or
installation of any Material, Software, Documentation, program or Services
furnished to Buyer hereunder, except to the extent that such claim arises
from Seller's compliance with Buyer's detailed instructions. Such exception
will not, however, include:
(a) Merchandise available on the open market or the same as such
merchandise.
(b) Items of Seller's origin, design or selection.
2. Seller warrants that it has made reasonable independent investigation
(including obtaining legal opinions) to determine the legality of its right to
product and sell the Material/Equipment/Services provided herein.
3. If an injunction or order is obtained against Buyer's use of any Material,
Software, Documentation, program or Service, or if in Seller's opinion any
Material, Software, Documentation, program or Service is likely to become the
subject of a claim of infringement, Seller will, at its expense:
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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(a) Procure for Buyer the right to continue using the Material, Software,
Documentation, Program or Service; or
(b) After consultation with Buyer, replace or modify the Material,
Software, Documentation, program or Service to make it a substantially
similar, functionally equivalent, non-infringing Material, Software,
Documentation, program or Service.
3. If the Material, Software, Documentation, program or Service is purchased
or licensed and neither (1) or (2) above is possible, Buyer may cancel the
applicable Order and require Seller to remove such Material, Software,
Documentation, program or Service from buyer's location and refund any
charges paid therefor by Buyer.
4. In no event will Buyer be liable to Seller for any charges after the date
that Buyer no longer uses and Material, Software, Documentation, program or
Service because of actual or claimed infringement.
6. Each party hereto agrees to defend or settle, at its own expense, any
action or suit against the other party hereto for which it is responsible
under this clause. Each party further agrees to notify the other party
promptly of any claim of infringement for which the other party is
responsible hereunder and cooperate in every reasonable way to facilitate
the defense thereof.
7. In the event the Seller, after notification of any claim for which Seller
is responsible, does not assume the defense of such action, Seller will
reimburse buyer for all of its costs incurred in the defense of the claim,
including, but not limited to attorneys' fees and interest on such Buyer's
payment of said amounts from he date of Buyer's payments of said amounts.
INSIGNIA
Upon Buyer's written request, Seller will affix certain of Buyer's trademarks,
trade names, insignia, symbols, decorative designs or evidences of Buyer's
inspection (hereafter collectively called "Insignia") to the MATERIAL furnished
hereunder. Such Insignia will not be affixed, used or otherwise displayed on or
in connection with the MATERIAL without Buyer's prior written approval.
The manner in which such Insignia will be affixed must be approved in writing by
Buyer. Seller agrees to remove all Insignia from MATERIAL rejected or not
purchased by Buyer prior to any sale, use or disposition thereof by Seller.
Seller further agrees to defend, indemnify and hold Buyer harmless from and
against any claim, loss, damage or expense (including attorneys' fees and court
costs) arising out of Seller's failure to do so.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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This clause will in no way alter or modify Seller's obligations under the clause
entitled "USE OF INFORMATION".
INSTALLATION/CUTOVER ASSISTANCE
If requested by Buyer, Seller and/or its OEM supplier agrees to make available
at the installation site, without charge, a field engineer to render
installation and cutover assistance as required by Buyer for the initial
installation/cutover in each of Buyer's operating areas.
INSURANCE
1. With respect to performance hereunder, and in addition to Seller's and/or its
OEM supplier's obligation to indemnify, Seller agrees to maintain, at all times
during the term of this Agreement, the following minimum insurance coverages and
limits and any additional insurance and/or bonds required by law:
a. Workers' Compensation insurance with benefits afforded under the laws
of the state in which the Services are to be performed and Employers
Liability insurance with minimum limits of $100,000 for Bodily
Injury-each accident, $500,000 for Bodily Injury by disease-policy
limits and $100,000 for Bodily Injury by disease-each employee.
b. Commercial General Liability insurance with minimum limits of:
$2,000,000 General Aggregate limit; $1,000,000 each occurrence
sub-limit for all bodily injury or property damage incurred in any one
occurrence; $1,000,000 each occurrence sub-limit for Personal Injury
and Advertising; $2,000,000 Products/Completed Operations Aggregate
limit, with a $1,000,000 each occurrence sub-limit for
Products/Completed Operations. Fire Legal Liability sub-limits of
$300,000 are required for lease agreements.
SBC will be named as an Additional Insured on the Commercial General
Liability policy.
c. If use of a motor vehicle is required, Automobile Liability insurance
with minimum limits of $1,000,000 combined single limits per occurrence for
bodily injury and property damage, which coverage shall extend to all
owned, hired and non-owed vehicles.
SBC requires that companies affording insurance coverage have a B+ VII or better
rating, as rated in the A.M. Best Key rating Guide for Property and Casualty
Insurance Companies.
2. A certificate of insurance stating the types of insurance and policy limits
provided the Seller must be received prior to commencement of any work. If a
certificate is not received, Seller hereby authorizes Buyer, and Buyer may, but
is not required to, obtain insurance on behalf
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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of Seller as specified herein. Buyer will either invoice Seller for the costs
incurred to so acquire insurance or will reduce by an applicable amount any
amount owed to Seller.
3. The cancellation clause on the certificate of insurance will be amended to
read as follows:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED OR MATERIALLY
CHANGED, THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER."
The Seller shall also require all subcontractors who may enter upon the work
site to maintain the same insurance requirements listed above. Additional
insurance responsibilities and obligations of OEM's are contained in Exhibit C
attached hereto and incorporated herein by this reference.
LIABILITY
1. Seller and/or its OEM supplier shall indemnify, defend and hold harmless
Buyer (including its agents, employees, officers, and directors) from and
against any and all liability, loss, damage, court cost, attorneys' fees or
other expense of any kind which arises out of any claim, demand, suit for
damages, injunction or other relief, on account of (a) injury to or death
of any person, (b) damage to any property, including theft , (c) public
charges and penalties, or (d) any lien, caused by, resulting from or
attributable to the Materials or Services or the acts or omissions of the
Seller (including any of its employees, agents, or subcontractors but
excepting the active negligence or willful misconduct solely of Buyer or
its employees) in furnishing the Materials or Services hereunder. This
indemnity shall survive the delivery, inspection and acceptance of the
Materials or Services hereunder.
2. Seller agrees to defend Buyer, at no cost or expense to Buyer, against any
such liability, claim, demand, suit or legal proceeding. Buyer agrees to notify
Seller within a reasonable time of any written claims or demands against Buyer
for which Seller is responsible under this clause.
3. Seller agrees not to implead or bring any action against Buyer or Buyer's
employees based on any claim by any person for personal injury or death that
occurs in the course or scope of employment of such person by Seller and that
arises out of the Material or Services furnished under this Agreement.
LICENSES
No licenses, express or implied, under any patents are granted by Buyer to
Seller under this Agreement.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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LICENSE FEE
Except as otherwise specified in the applicable Order, the license fee for
Standard Software is included in the purchase price of the Material.
LICENSE TERM
The perpetual license or license term shall commence on the date when Buyer
accepts the Software. Unless the Order is sooner Canceled or Terminated as
provided herein, a license shall continue for the initial license term specified
in the applicable Order and thereafter as renewed until the Order is Canceled or
Terminated as provided herein.
LIMITATION OF LIABILITY
SBC will not be liable for consequential, incidental, special, or punitive
damages, or for loss of revenue or profit in connection with the performance or
failure to perform this Agreement regardless whether such liability arises from
breach of contract, tort, or any other theory of liability.
MATERIAL RELIABILITY
Seller and/or its OEM supplier commits to test all Material, including Original
Equipment Manufacture (OEM) Material prior to release to Buyer. Such testing
shall include complete regression and interaction testing of all Software and
patches. Seller commits to release Material without any critical or major
issues/faults. Material reliability is demonstrated through zero quality alerts
and requests for material disposition.
MODIFICATION
a) Buyer shall have the absolute right to make any alterations, variations,
modifications, additions or improvements to the source code for Software
licensed hereunder at its own risk and expense or Agreement with third
parties for such modifications and such modifications by third parties
shall be subject to the nondisclosure provisions of this Agreement. The
conditions and charges, if any, for Seller support of such modifications
shall be subject to agreement between Buyer and Seller.
Any unmodified portion of such modified Software shall be subject to the same
conditions and limitations to have been designated herein for original Software
and Documentation. Title to any such addition or modifications shall remain with
Buyer.
b) Buyer may merge the Software with other computer programs to generate a
shared program library. After Cancellation or Termination of the license
for the Software, such Software shall be removed from such shared program
library and shall be destroyed.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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c) Any Software modification made by Seller at the request and expense of
Buyer shall be governed by the provisions of a separate custom software
development agreement between the parties.
MBE/WBE-DVBE PARTICIPATION PLANS AND REPORTS
Seller commits to goals for the participation of M/WBE and DVBE firms (as
defined in the Section entitled "MBE/WBE/DVBE Cancellation Clause) as follows:
15% annual MBE participation; 5% annual WBE participation; and 1.5% annual DVBE
participation. These goals apply to all annual expenditures by any entity
pursuant to this Agreement with Seller.
Attached hereto and incorporated herein as Exhibit A1 is Seller's completed
Participation Plan outlining its M/WBE-DVBE goals and specific and detailed
plans to achieve those goals. Seller will submit an updated Participation Plan
annually by the first week in January. Seller will submit M/WBE-DVBE Results
Reports quarterly by the end of the first week following the close of each
quarter, using the form attached hereto and incorporated herein as Exhibit B1.
Participation Plans and Results Reports will be submitted to the Prime Supplier
Results Manager.
MBE/WBE/DVBE CANCELLATION CLAUSE
a. Seller agrees that falsification or misrepresentation of, or failure to
report a disqualifying change in, the MBE/WBE/DVBE status of Seller or any
subcontractor utilized by Seller; or Seller's failure to comply in good faith
with any MBE/WBE/DVBE utilization goals established by Seller; or Seller's
failure to cooperate in any investigation conducted by SBC, or by SBC's agent,
to determine Seller's compliance with this section, will constitute a material
breach of this Agreement. In the event of any such breach, SBC may, at its
option, cancel ("Cancel") this Agreement upon 20 days notice. Seller
acknowledges and agrees that SBC's right to Cancel is absolute and
unconditional, and SBC shall not be subject to liability, nor shall Seller have
any right to suit for damages as a result of such cancellation.
b. For purchases under this Agreement by Pacific Xxxx, Pacific Xxxx
Directory, Pacific Xxxx Mobile Services, Pacific Xxxx Information Services,
Pacific Xxxx Communications, and any other entity operating principally in
California (collectively "California Affiliates"), Minority and Women Business
Enterprises (MBEs/WBEs) are defined as businesses which satisfy the requirements
of paragraph c. below and are certified as MBEs/WBEs by the California Public
Utilities Commission Clearinghouse ("CPUC-certified").
For purchases under this Agreement by any entity that is not a California
Affiliate, MBEs/WBEs are defined as businesses which satisfy the requirements of
paragraph c. below and are either CPUC-certified or are certified as MBEs/VBEs
by a certifying agency recognized by SBC.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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c. MBEs/WBEs must be at least 51% owned by a minority individual or group
or by one or more women (for publicly-held businesses, at least 51% of the stock
must be owned by one or more of those individuals), and the MBEs/WBEs'
management and daily business operations must be controlled by one or more of
those individuals, and these individuals must be either U.S. citizens or legal
aliens with permanent residence status. For the purpose of this definition,
minority group members include male or female Asian Americans, Black Americans,
Filipino Americans, Hispanic Americans, Native Americans (i.e., American
Indians, Eskimos, Aleuts and Native Hawaiians), Polynesian Americans, and
multi-ethnic (i.e., any combination of MBEs and WBEs where no one specific group
has a 51% ownership and control of the business, but when aggregated, the
ownership and control combination meets or exceeds the 51% rule). "Control" in
this context means exercising the power to make policy decisions. "Operate" in
this context means actively involved in the day-to-day management of the
business and not merely acting as officers or directors.
d. For purchases under this Agreement by California Affiliates, Disabled Veteran
Business Enterprises (DVBEs) are defined as business concerns that satisfy the
requirements of paragraph e. below and are certified as DVBEs by the California
State Office of Small and Minority Business (OSMB). The DVBE must be a resident
of the State of California, and must satisfy the requirements of paragraph e.
below.
For purchases under this Agreement by any entity that is not a California
Affiliate, DVBEs are defined as any business concern that satisfies the
requirements of paragraph e. below and is either a defined DVBE for purchases by
California Affiliates, or is certified as a DVBE by a certifying agency
recognized by SBC.
e. The DVBE must be (1) a sole proprietorship at least 51% owned by one or
more disabled veterans; or (2) a publicly-owned business in which at least 51%
of the stock is owned by one or more disabled veterans; or (3) a subsidiary
which is wholly owned by a parent corporation, but only if at least 51% of the
voting stock of the parent corporation is owned by one or more disabled
veterans; or (4) a joint venture in which at least 51% of the joint venture's
management and control and earnings are held by one or more disabled veterans.
In each case, the management and control of the daily business operations must
be by one or more disabled veterans. A disabled veteran is a veteran of the
military, naval or air service of the United States with a service-connected
disability. "Management and control" in this context means exercising the power
to make policy decisions and actively involved in the day-to-day management of
the business and not merely acting as officers or directors.
NON-EXCLUSIVE MARKET RIGHTS
It is expressly understood and agreed that this Agreement does not grant Seller
an exclusive privilege to provide to Buyer any or all Material and Services of
the type described in this Agreement nor requires the purchase of any products
or services from Seller by Buyer. It is,
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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therefore, understood that Buyer may Contract with other manufactures and
suppliers for the procurement or trial of comparable products and services and
that Buyer may itself perform the Services described herein.
NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement will be construed as a waiver of such term,
right or condition. The waiver by Buyer in one instance of any default of Seller
hereunder will not be deemed a waiver of any other default of Seller. The
express provision herein for certain rights and remedies of Buyer are in
addition to any other legal and equitable rights and remedies to which Buyer
would otherwise be entitled.
NOTICES
Except as otherwise provided in this Agreement, or applicable Order, all notices
or other communications hereunder shall be deemed to have been duly given when
made in writing and either 1) delivered in person, 2) delivered to an agent,
such as an overnight or similar delivery service, or 3) deposited in the United
States Mail, postage prepaid, or 4) facsimile transmission, and addressed as
follows:
To: (World Wide Technology, Inc.) To: (Affiliate Name)
(127 Xxxxxx Parkway) (Affiliate street address)
(St. Louis, Missouri 63043-3101) (Affiliate city, state, Zip)
Attn.: Xxxx Xxxxxxxx (000) 000-0000
(Attn:____________________
To: (Southwestern Xxxx Telephone Company)
(530 XxXxxxxxxx xx. 2-MO2)
(San Antonio, Texas 78215)
Attn.: Xxxx Xxxxxx (000) 000-0000
The address to which notices or communications may be given by either party may
be changed by written notice given by such party to the other pursuant to this
paragraph entitled "Notices".
ORDER ACKNOWLEDGMENT
a. Seller agrees to send to Buyer's Local Purchasing Organization ("LPO")
identified on the Order two (2) copies of an Acknowledgment for all Material to
be furnished hereunder at least thirty (30) days prior to the scheduled shipment
date thereof. Such Acknowledgment will identify:
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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1) All Material to be provided with the appropriate Continuing Property
Record ("CPR") number thereof.
2) All non-hardwired Material (plug-ins) listed thereon with the Common
Language Equipment Identifier ("CLEI") coding, item number, unit
description, unit quantity and price.
b. All hardwired equipment, plug-ins, tools and test sets contained in kits or
assemblies must be listed separately with appropriate CPR numbers and/or
CLEI codes, unit quantities and unit prices. The only items in kits and
assemblies that do not need to be listed separately are miscellaneous minor
items not coded by Bellcore. The unit description, CPR number and CLEI code
must exit in Bellcore's National Property Record Catalog ("NPRC') and
Equipment Catalog System ("ECS") data bases, and the item numbers and
descriptions on Seller's invoices must match the item numbers and
description on the acknowledgment.
PLANT AND WORK RULES
Each party's employees and agents will, while on the premises of the other or at
any other location while performing SERVICES under this agreement for SWBT,
comply with all plant rules and regulations, including, but not limited to, the
section of SBC Communications' "Code of Business Conduct," a copy of which is
available upon request, which prohibits the possession of any weapon or
implement which might be used as a weapon on SWBT properties. In addition, the
parties agree that, where required by government regulations, it will submit
satisfactory clearance from the U.S. Department of Defense and/or other federal
authorities concerned.
PUBLICITY
Seller agrees not to advertise, or otherwise make known to others, any
information regarding this Agreement. Seller further agrees not to use in any
advertising or sales promotion, press releases or other publicity matters any
endorsements, direct or indirect quotes, or pictures implying endorsement by
Buyer or any of its employees without Buyer's prior written approval. Seller
will submit to Buyer for written approval, prior to publication, all publicity
matters that mention or display Buyer's name and/or marks or contain language
from which a connection to said name and/or marks may be inferred or implied.
PURCHASE ORDERS
a. Purchase Orders submitted by Buyer against this Agreement will be placed on
Buyer's Purchase Order form, a copy of which is attached thereto as Exhibit B,
and by this reference made a part hereof. The typed or written provisions on
Buyer's Orders will be incorporated into
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
this Agreement, but printed provisions on the reverse side thereof will be
deemed deleted. Such Orders will specify:
1) A description of the Material, including any numerical/alphabetical
identification referenced in the price list attached hereto (Exhibit
B). 2) The requested delivery date. 3) The applicable price(s). 4) The
location to which the Material is to be shipped. 5) The location to
which invoices are to be rendered for payment. 6) Buyer's Order
number.
b. Orders will be deemed accepted by Seller unless written notice to the
contrary is received by Buyer within thirty (30) days from Seller's receipt
thereof. Such notice will be given to Buyer in care of the address indicated on
the acknowledgment copy of the Order.
c. Inquiries relating to Orders, information requests, etc. should be directed
as indicted in the subordinate contracts.
QUALITY ASSURANCE
1. Seller and/or its OEM supplier represents and warrants that it is
registered to ANSI/ASQC Q9001 or Q9002 (1994).
2. Seller and/or its OEM supplier hereby agrees that HARDWARE and/or SOFTWARE
furnished hereunder by Seller has undergone or has been subject to: a.)
Seller's quality control activities and procedures, including any
performance measurements, testing, quality process reviews or inspections
to implement such procedures; and b.) Will meet the following requirements
of the Bellcore documents and subsequent issues thereof listed below:
o TR-NWT-000179 - "Quality System Generic Requirements for
Software"
o GR-282-CORE - "Software Reliability and Quality Acceptance
Criteria (SRQAC)"
o GR-929-CORE - "Reliability and Quality Measurements for
Telecommunications Systems (RQMS)"
o GR- 1252-CORE - "Quality System Generic Requirements for
Hardware"
o GR-1315-CORE - "In-Process Quality Metrics Generic Requirements
(IPQM)"
o TR-NWT-001359 - "Supplier Data Basic Generic Requirements"
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
Note: Bellcore documents may be obtained by contacting Bellcore
at: Bellcore, 0 Xxxxxxxxx Xxxxx, Xxxx 0X 000, Xxxxxxxxxx, XX
00000, or by calling: (000) 000-0000 or (000) 000-0000.
c. Quality Assurance Examination and/or Process Surveillance by Buyer or
its representative ("Buyer's Agent"). Such Quality Assurance Examination
and/or Process Surveillance may be conducted in accordance with the most
current issue of Quality Program Specification ("QPS") No. 88.010,
Surveillance Program for Software-General, a copy of which is attached
hereto as Exhibit D, and by this reference made a part hereof.
3. Seller further agrees that it will at no additional charge:
a. Notify Buyer or Buyer's Agent when HARDWARE and/or SOFTWARE is ready for
examination and give Buyer or Buyer's Agent reasonable opportunity to
examine same at any time prior to the scheduled shipment date thereof.
b. Provide Buyer or Buyer's Agent with copies of Seller's Quality Manual,
current inspection procedures and product specifications for the HARDWARE
and/or SOFTWARE furnished hereunder.
c. Maintain and make available to Buyer or Buyer's Agent the data including
all information and reports about Seller's quality control procedures which
demonstrate that the HARDWARE and/or SOFTWARE meets the specified quality
and reliability requirements.
d. Provide Buyer or Buyer's Agent, at no charge, with access to Seller's
test equipment, facilities, data and specifications, assistance from
Seller's personnel and sufficient working space to enable Buyer or Buyer's
Agent to perform said Quality Assurance Examination and/or Process
Surveillance and/or a review of Seller's total quality program at Seller's
facilities.
e. As reasonably requested by Buyer, Supplier shall support SBC
Communications, Inc. on-going Supplier Quality Programs at a minimum of but
not limited to the following:
(1) Quality Partner Program (QPP)
QPP is an ongoing Assessment, Feedback, and Recognition Program. The
Supplier submits a completed copy of the QPP Application and
Self-Assessment to their Agreement Manager for initial evaluation and
rating, and then supplies an annual update and progress report to
Buyer, by a date to be agree upon by Buyer and Seller.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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(2) Supplier Performance Feedback Process (Report Cards)
This process provides for the periodic measurement of the Supplier's
performance in relation to HARDWARE/SOFTWARE and/or Service Quality,
Cost Effectiveness, On-Time Delivery, and Support Satisfaction.
(3) Joint Quality Initiatives (JQI)
The purpose of the JQI program is to establish partnering
arrangements with Buyer's Suppliers in order to identify quality
improvement opportunities that result in documented savings. The
details of the JQI, amount of savings, and the time required to
achieve the proposed savings is a matter to be determined between
Buyer and the Supplier. Specifically the proposed JQI shall identify
the particular process targeted for savings, the expected savings
resulting from the JQI, the time required to achieve the desired
savings, and a detailed implementation plan. Additionally, key
contacts should be identified for each JQI and detailed status reports
should be provided to the designated Agreement Manager at the Buyer on
no less than a monthly basis. If requested, the supplier shall provide
in writing at least one JQI to their Agreement Manager. The proposed
JQI shall include the particular elements outlined in the paragraph
immediately above.
4. Nothing contained herein will diminish Seller's obligation to deliver
defect-free material which meets Specifications nor affect Buyer's rights
hereunder, under any warranty, or under other provisions of this Agreement. The
purchase of any HARDWARE/SOFTWARE hereunder is subject to Buyer's inspection and
acceptance after delivery thereof.
RECORDS AND AUDITS
Seller agrees that it will:
a) Maintain complete and accurate records of all amounts billable to and
payments made by Buyer hereunder in accordance with generally accepted
accounting principles and practices, uniformly and consistently applied in
a format that will permit audit; b) Retain such records and reasonable
billing detail for a period of three (3) years from the date of final
payment for Materials and Services; c) Provide reasonable supporting
documentation to Buyer concerning any disputed invoice amount within thirty
(30) calendar days after receipt of written notification of such dispute;
and d) Permit Buyer and its authorized representatives to inspect and audit
during normal business hours the charges invoiced to Buyer. Should Buyer
request an audit, Seller will make available any pertinent records and
files to Buyer during normal business hours.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
REGISTRATION
When Material furnished under this Agreement is subject to Part 68 of the
Federal Communications Commission's Rules and Regulations ("FCC Rules and
Regulations") as may from time to time be amended, Seller and/or its OEM
supplier warrants that such Material is registered under and complies with Part
68 of such FCC Rules and Regulations including, but not limited to, all labeling
and customer instruction requirements. Seller agrees to indemnify and hold Buyer
harmless from and against any liability, claims or demands (including costs of
defense and attorneys' fees) that may be made because of Seller's noncompliance
with Part 68 of the FCC Rules and Regulations. Seller agrees, at its expense, to
defend Buyer, at Buyer's request, against such liability, claim or demand,
provided, however, that Seller shall (1) keep Buyer fully informed as to the
progress of such defense, and (2) afford Buyer, at its own expense, an
opportunity to participate on an equal basis with Seller in such defense.
RELEASES VOID
Neither party will require waivers or releases of any personal rights from
representatives of the other in connection with visits to each other's
respective premises, and no such releases or waivers will be pleaded by Seller,
Buyer or third persons in any action or proceeding.
SEVERABILITY
If any provision or any part of provision of this Agreement shall be invalid or
unenforceable, such invalidity or non-enforceability shall not invalidate or
render unenforceable any other portion of this Agreement. The entire Agreement
will be construed as if it did not contain the particular invalid or
unenforceable provision(s) and the rights and obligations of the Seller and
Buyer will be construed and enforced accordingly.
SOFTWARE RISK OF LOSS
a) If Software is lost, damaged or made invalid during shipment prior to
Acceptance, or if it is lost or damaged at any time due to the negligence
or willful misconduct of Seller or its Contractors or agents, Seller shall
promptly replace it at no additional charge to Buyer.
b) Except as otherwise provided in Section a), above, if the Software is lost
or damaged at any time while in possession of Buyer after acceptance,
Seller shall promptly replace it and Buyer shall pay only the cost of
reproduction and shipment or delivery.
SURVIVAL OF OBLIGATIONS
Seller's and/or its OEM supplier's obligations under this Agreement which by
their nature would continue beyond the termination, cancellation or expiration
hereof, including, by way of illustration only and not limitation, those in the
clauses entitled "COMPLIANCE WITH
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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LAWS", "INFRINGEMENT", "LIABILITY", "PUBLICITY", "RELEASES VOID",
"SEVERABILITY", "USE OF INFORMATION" and "WARRANTY", will survive the
termination, cancellation or expiration of this Agreement.
TAXES
1. Seller will invoice Buyer the amount of any federal excise taxes or state or
local sales taxes imposed upon the sale of Material as separate items, if
applicable, listing the taxing jurisdiction imposing the tax. Installation or
labor charges must be separately stated. Buyer agrees to pay all applicable
taxes to Seller which are stated on and at the time the Material invoice is
submitted by Seller. Seller agrees to remit taxes to the appropriate taxing
authorities.
2. Seller agrees to pay, and to hold Buyer harmless from and against, any
penalty, interest, additional tax or other charge that may be levied or assessed
as a result of the delay or failure of Seller, for any reason, to pay any tax or
file any return or information required by law, rule or regulation or by this
Agreement to be paid or filed by Seller. Seller agrees to pay and to hold Buyer
harmless from and against any penalty or sanction assessed as a result of Seller
doing business with any country subject to U.S. trade restrictions.
3. Upon Buyer's request, the parties shall consult with respect to the basis and
rates upon which Seller shall pay any taxes for which Buyer is obligated to
reimburse Seller under this Agreement. If Buyer determines that in its opinion
any such taxes are not payable or should be paid on a basis less than the full
price or at rates less than the full tax rate, Seller shall make payment in
accordance with such determinations. If collection is sought by the taxing
authority for a greater amount of taxes than that so determined by Buyer, Seller
shall promptly notify Buyer. If Buyer desires to contest such collection, Buyer
shall promptly notify Seller. If Buyer determines that in its opinion it has
reimbursed Seller for sales or use taxes in excess of the amount which Buyer is
obligated to reimburse Seller, Buyer and Seller shall consult to determine the
appropriate method of recovery of such excess reimbursements. Seller shall
credit any excess reimbursements against tax reimbursements or other payments
due from Buyer if and to the extent Seller can make corresponding adjustments to
its payments to the relevant tax authority. At Buyer's request, Seller shall
timely file any claims for refund and any other documents required to recover
any other excess reimbursements, and shall promptly remit to Buyer all such
refunds (and interest) received.
4. If any taxing authority advises Seller that it intends to audit Seller with
respect to any taxes for which Buyer is obligated to reimburse Seller under this
agreement, Seller shall (1) promptly so notify Buyer, (2) afford Buyer an
opportunity to participate on an equal basis with Seller in such audit with
respect to such taxes and (3) keep Buyer fully informed as to the progress of
such audit. Each party shall bear its own expenses with respect to any such
audit, and the responsibility for any additional tax, penalty or interest
resulting from such audit shall be determined in accordance with the applicable
provisions of this Section. Seller's failure to
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
comply with the notification requirements of this section shall relieve Buyer of
its responsibility to reimburse Seller for taxes only if Seller's failure
materially prejudiced Buyer's ability to contest imposition or assessment of
those taxes.
TECHNICAL SUPPORT
Seller and/or its OEM supplier will provide, at no additional cost, fall and
complete technical assistance to Buyer for the Products and Services covered by
this Agreement. Buyer will be entitled to ongoing technical support including
field service and assistance from Seller at no additional charge; provided
however, that the availability or performance of this technical support Service
will not be construed as altering or affecting Seller's obligations as set forth
in the clause entitled [* Confidential treatment will be requested] or provided
elsewhere in this Agreement. Field Service and technical support Services,
including emergency (service affecting) will be provided on site twenty-four
(24) hours a day. Seller will deliver to Buyer and keep current an escalation
document that includes names, titles and telephone numbers, including
after-hours telephone numbers, of Seller personnel responsible for providing
technical support Services to Buyer. Seller will maintain a streamlined
escalation process to speed resolution of reported problems.
TERMINATION
Buyer may terminate this Agreement or any Order in whole or in part at any time
by giving Seller at least thirty (30) days' prior written notice. Upon
termination, Buyer agrees to pay Seller all amounts due for MATERIAL provided by
Seller under this Agreement up to and including the effective date of
termination, which payment will constitute a full and complete discharge of
Buyer's obligations to Seller hereunder.
TERMS OF AGREEMENT
This Agreement is effective as of the signature date, and, unless terminated or
canceled as provided in this Agreement, shall remain in effect so long as both
parties find the Agreement mutually benefiting.
[* Confidential treatment will be requested]
TITLE AND RISK OF LOSS
Title to MATERIAL purchased hereunder will vest in Buyer when the MATERIAL has
been delivered and accepted at the F.O.B. point designated by Buyer. If this
Agreement calls for additional services such as unloading, installation or the
like to be performed after delivery,
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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Seller will retain risk of loss to the MATERIAL until the additional services
have been performed to Buyer's satisfaction.
UNIVERSAL DESIGN
Seller and/or its OEM supplier advocates and supports and encourages its
suppliers to advocate and support the manufacturing and provision of products
which embrace the concept of "universal design". Seller shall use its reasonable
efforts to manufacture and provide products, including future versions of
Products, to make its products accessible to the widest range of consumers
including those with disabilities. Seller agrees to reasonably cooperate with
Buyer in addressing disability access issues, including hearing aid
interference, that may arise in connection with Buyer's customer's use of
Seller's Products furnished hereunder. Specifically Seller agrees:
1. to ensure that its equipment is designed, developed and fabricated to be
accessible to and usable by people with disabilities, and
2. to ensure that the service is accessible to and usable to people with
disabilities, or
3. to ensure that the equipment or service is compatible with existing
peripheral devices or specialized customer premises equipment commonly used
by individuals with disabilities to achieve access, if the requirements of
subsection 1 and 2 are not readily achievable.
* Confidential treatment will be requested
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
emergency replacement Service shall continue for a period of ten (10) years
after the expiration of this Agreement. For Materials not covered under
warranty, charges for replacement Material shall be at the current selling
price; freight charges shall be borne by Buyer.
WORK DONE BY OTHERS
If any part of the Work is dependent upon work done by others, Seller shall
inspect and promptly report to Buyer any defect that renders such other work
unsuitable for Seller's proper performance. Seller's silence shall constitute
approval of such other work as it is fit, proper and suitable for Seller's
performance of the Work. Seller shall be entirely responsible for all persons
furnished by Seller working in harmony with all others when working on Buyer's
premises.
YEAR 0000 XXXXXXXX
1. Seller and/or its OEM supplier warrants that all Software and Firmware,
including any third party Software, which is licensed to Buyer hereunder
prior to, during, or after the calendar year 2000, includes or will
include, by___________, 199_, and at no additional cost to Buyer, year 2000
capability. For the purpose of this license, year 2000 capability means
that the Software and Firmware will:
a. Read, compute, store, process, display and print data involving dates,
including single century and multi-century formulas, and will not
cause computational, display, storage or other errors resulting from
the inability to accurately or correctly handle dates, including Year
2000 and February 29, 2000;
b. Include the indication of century in all date-related user interface
functionality, data fields, and generated code; and
c. Be interoperable with other software used by Buyer which may deliver
records to such Software and Firmware, receive records from such
Software and Firmware or interact with such Software and Firmware in
the course of processing dates.
2. Acknowledges that Software and Firmware Products licensed by Seller
hereunder may require modification in order to correctly process dates for
Year 2000 and beyond. In addition, such modifications may be required in
order for Seller's Software and Firmware Products to function correctly
with Buyer's data and in accordance with the applicable Specifications
therefor. Seller agrees to develop and implement such required changes in
its Software and Firmware Products licensed hereunder by Buyer in
accordance with a schedule to be mutually agreed to between Seller and
Buyer, but which, at a minimum, shall provide Buyer with sufficient time to
adequately test such modified Software and Firmware prior to mandatory
implementation of such modified Software and Firmware
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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Products. Seller agrees that there shall be no additional charges to Buyer for
such modifications or the modified Software and Firmware Products.
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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TERMS AND CONDITIONS
IN WITNESS WHEREOF, Seller and Buyer have executed the Agreement in duplicate
counterparts, each of which will be deemed to be an original document as of the
signature dates below.
WORLD WIDE TECHNOLOGY, INC. SOUTHWESTERN XXXX OPERATIONS INC.
(SELLER) (BUYER)
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx-Xxxxxxxxx
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxxxx-Xxxxxxxxx
Title: Director - Telco Bus. Unit Title: Director-Sonet & Transp Data Tech
Date: 3/15/99 Date: 3/9/99
PROPRIETARY INFORMATION
THE INFORMATION CONTAINED HEREIN IS NOT FOR USE OR DISCLOSURE OUTSIDE
SOUTHWESTERN XXXX TELEPHONE COMPANY, PACIFIC XXXX OR THEIR AFFILIATED AND
SUBSIDIARY COMPANIES EXCEPT UNDER WRITTEN AGREEMENT BY THE CONTRACTING
COMPANY.
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EXHIBIT A -- EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS
Work under this contract may be subject to the provisions of certain Executive
Orders, federal laws, state laws, and associated regulations governing
performance of this contract including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701, and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973 as amended and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such
Executive Orders, federal laws, state laws, and associated regulations apply to
the work under this contract, and only to that extent, Contractor agrees to
comply with the provisions of all such Executive Orders, federal laws, state
laws and associated regulations, as now in force or as may be amended in the
future, including, but not limited to the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT
CONTRACTORS
In accordance with 41 C.F.R. Section 60-1.4(a), the parties incorporate
herein by this reference the regulations and contract clauses required by that
section, including but not limited to, Contractor's agreement that it will not
discriminate against any employee or applicant for employment because of race,
color, religion, sex, or national origin. The Contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex, or
national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R. Section 60-1.8, Contractor agrees that it
does not and will not maintain or provide for its employees any facilities
segregated on the basis of race, color, religion, sex, or national origin at
any of its establishments, and that it does not and will not permit its
employees to perform their services at any location, under its control, where
such segregated facilities are maintained. The term "facilities" as used herein
means waiting rooms, work areas, restaurants and other eating areas, time
clocks, restrooms, washrooms, locker rooms and other storage or dressing
areas, parking lots, drinking fountains, recreation or entertainment areas,
transportation, and housing facilities provided for employees; provided, that
separate or single-user restroom and necessary dressing or sleeping areas shall
be provided to assure privacy between the sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
Contractor agrees that it has developed and is maintaining an Affirmative
Action Plan as required by 41 C.F.R. Section 60-1.4(b).
4. AGREEMENT OF FILING
Contractor agrees that it will file, per current instructions, complete
and accurate reports on standard Form 100 (EEO-1), or such other forms as may
be required under 41 C.F.R. Section 60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS AND DISABLED VETERANS,
VETERANS OF THE VIETNAM ERA.
In accordance with 41 C.F.R. Section 60-250.20, and 41 C.F.R. Section
60-741.20, the parties incorporate herein by this reference the regulations and
contract clauses required by those provisions to be made a part of government
contracts and subcontracts.
6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
CONCERNS
As prescribed in 48 C.F.R., Ch. 1, 19.708(a):
(a) It is the policy of the United States that small business concerns,
small business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women shall have the maximum practicable opportunity to participate in
performing contracts let by any Federal agency, including contracts and
sub-contracts for systems, assemblies, components, and related services for
major systems. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment amounts due
pursuant
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EXHIBIT A, Page 2 of 2
to the terms of the subcontracts with small business concerns, small business
concerns owned and controlled by socially and economically disadvantaged
individuals and small business concerns owned and controlled by women.
(b) The Contractor hereby agrees to carry out this policy in the awarding
of subcontracts to the fullest extent consistent with efficient contract
performance. The Contractor further agrees to cooperate in any studies or
surveys as may be conducted by the United States Small Business Administration
or the awarding agency of the United States as may be necessary to determine the
extent of the Contractor's compliance with this clause.
(c) As used in this contract, the term small business concern shall mean a
small business as defined pursuant to section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term small business
concern and owned and controlled by socially and economically disadvantaged
individuals shall mean a small business concern which is at least 51 percent
unconditionally owned by one or more socially and economically disadvantaged
individuals; or, in the case of any publicly owned business, at least 51 percent
of the stock of which is unconditionally owned by one or more socially and
economically disadvantaged individuals; and (2) whose management and daily
business operations are controlled by one or more such individuals. This term
also means small business concern that is at least 51 percent unconditionally
owned by an economically disadvantaged Indian tribe or Native Hawaiian
Organization, or a publicly owned business having at least 51 percent of its
stock unconditionally owned by one of these entities which has its management
and daily business controlled by members of an economically disadvantaged Indian
tribe or Native Hawaiian Organization, and which meets the requirements of 13
CRF part 124. The Contractor shall presume that socially and economically
disadvantaged individual include Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and other
minorities, or any other individual found to be disadvantaged by the
Administration pursuant to section 8(a) of the Small business Act. The
Contractor shall presume that socially and economically disadvantaged entities
also include Indian Tribes and Native Hawaiian Organizations.
(d) The term "small business concern owned and controlled by women" shall
mean a small business concern (i) which is at least 51 percent owned by one or
more women, or, in the case of any publicly owned business, at least 51 percent
of the stock of which is owned by one or more women, and (ii) whose management
and daily business operations are controlled by one or more women; and
(e) Contractors acting in good faith may rely on written representations by
their sub-contractors regarding their status as a small business concern, a
small business concern owned and controlled by socially and economically
disadvantaged individuals or a small business concern owned and controlled by
women.
7. SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUB-CONTRACTING
PLAN.
The sub-contractor will adopt a plan similar to the plan required by 48 CFR
Ch. 1 at 52.219-9.
36
PRIME SUPPLIER
MBE/WBE/DVBE PARTICIPATION PLAN
PRIME SUPPLIER NAME:____________________________________________________________
ADDRESS:________________________________________________________________________
TELEPHONE NUMBER:_______________________________________________________________
DESCRIBE GOODS OR SERVICES BEING PROVIDED UNDER THIS AGREEMENT:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DESCRIBE YOUR M/WBE - DVBE OR SUPPLIER DIVERSITY PROGRAM AND THE PERSONNEL
DEDICATED TO THAT PROGRAM.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
THE FOLLOWING, TOGETHER WITH ANY ATTACHMENTS IS SUBMITTED AS AN MBE/WBE/DVBE
PARTICIPATION PLAN.
1. GOALS
A. WHAT ARE YOUR MBE/WBE/DVBE PARTICIPATION GOALS?
o MINORITY BUSINESS ENTERPRISES (MBEs) ____________%
o WOMEN BUSINESS ENTERPRISES (WBEs) ____________%
o DISABLED VETERANS BUSINESS ____________%
ENTERPRISES (DVBEs)
B. WHAT IS THE ESTIMATED ANNUAL VALUE OF THIS CONTRACT WITH PACIFIC XXXX?
_______________
37
General Agreement # 98005906 Exhibit A1
SOUTHWESTERN XXXX TELEPHONE COMPANY ("SWBT")?___________
OTHER SBC AFFILIATE? _______________
Note: Indicate Dollar Award(s) as it applies to this contract
(i.e., Pacific Xxxx, SWBT and/or affiliate).
C. WHAT ARE THE DOLLAR AMOUNTS OF YOUR PROJECTED MBE/WBE/DVBE PURCHASES?
o MINORITY BUSINESS ENTERPRISES (MBEs) _______________
o WOMEN BUSINESS ENTERPRISES (WBEs) _______________
o DISABLED VETERANS BUSINESS _______________
ENTERPRISES (DVBEs)
*SEE MBE/WBE/DVBE CANCELLATION CLAUSE IN AGREEMENT FOR DEFINITIONS OF MBE, WBE,
AND DVBE*
2. LIST THE PRINCIPAL GOODS AND/OR SERVICES TO BE SUBCONTRACTED TO
MBE/WBE/DVBEs OR DELIVERED THROUGH MBE/WBE/DVBE VALUE ADDED RESELLERS.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
DETAILED PLAN FOR USE OF M/WBEs-DVBEs AS
SUBCONTRACTORS, DISTRIBUTORS, VALUE ADDED RESELLERS
For every product and service you intend to use, provide the following
information:
(Attach additional sheets if necessary)
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COMPANY NAME CLASSIFICATION PRODUCTS/SERVICES TO $ VALUE DATE TO BEGIN
(MBE/WBE/DVBE) BE PROVIDED
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2
38
General Agreement #98005906 Exhibit A1
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3. SELLER AGREES THAT IT WILL MAINTAIN ALL NECESSARY DOCUMENTS AND RECORDS TO
SUPPORT ITS EFFORTS TO ACHIEVE ITS MBE/WBE/DVBE PARTICIPATION GOAL(S).
SELLER ALSO ACKNOWLEDGES THE FACT THAT IT IS RESPONSIBLE FOR IDENTIFYING,
SOLICITING AND QUALIFYING MBE/WBE/DVBE SUBCONTRACTORS, DISTRIBUTORS AND
VALUE ADDED RESELLERS.
4. THE FOLLOWING INDIVIDUAL, ACTING IN THE CAPACITY OF MBE/WBE/DVBE
COORDINATOR FOR SELLER, WILL:
o ADMINISTER THE MBE/WBE/DVBE PARTICIPATION PLAN,
o SUBMIT SUMMARY REPORTS, AND
o COOPERATE IN ANY STUDIES OR SURVEYS AS MAY BE REQUIRED IN ORDER TO
DETERMINE THE EXTENT OF COMPLIANCE BY THE SELLER WITH THE
PARTICIPATION PLAN.
NAME: (PRINTED)____________________________________________________________
TITLE:_____________________________________________________________________
TELEPHONE NUMBER:__________________________________________________________
AUTHORIZED SIGNATURE:______________________________________________________
DATE:______________________________________________________________________
3
39
SBC - PACIFIC XXXX
M/WBE-DVBE QUARTERLY RESULTS REPORT
NOTE: Subcontracting & Value Added Reseller Results should reflect ONLY
M/WBE-DVBE dollars directly traceable to PACIFIC XXXX purchases DURING
THE REPORT QUARTER. If reporting results for Southwestern Xxxx
Telephone Company, complete a separate Exhibit B1.
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1. REPORTING COMPANY: 2. CONTRACT/ 3. REPORT QUARTER:
WORK ORDER NUMBER: This report reflects the
Name:__________________________________________ utilization of Minority Business
Address:_______________________________________ Enterprise/Woman Business
City, State, Zip:______________________________ ___________________ Enterprise/Disabled Veterans
Telephone:_____________________________________ (If available) Enterprise participation for
period
________________________ through
_______________________________
(Please indicate dates)
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PARTICIPATION GOAL PARTICIPATION ACHIEVEMENT
5. ACTUAL FOR QUARTER
4. MBE WBE DVBE
Subcontracting Dollars $ $ $
---------- ---------- --------
ANNUAL GOAL
Value Added Reseller
Percent of Total MBE WBE DVBE Dollars $ $ $
---------- ----------- --------
Pacific Xxxx Purchases % % %
---------- ---------- ----------
Total Purchase Dollars $
------------- ----------- -----
Percent of Total
Purchases % % %
---------- ---------- --------
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VALUE ADDED RESELLER* RESULTS
*Supplier who purchases products/services from an original equipment
manufacturer or other prime supplier for resale and provides enhancements or
added value to the basic product. (Attach additional sheets if necessary)
Ethnic/Gender: Total Dollars:
------------- -------------
6.
Name:____________________________________________________________________ __________________________________ ____________________
Address:____________________________________________________________________________________________________________________________
City, State, Zip:___________________________________________________________________________________________________________________
Telephone:__________________________________________________________________________________________________________________________
Goods or Services:__________________________________________________________________________________________________________________
Ethnic/Gender: Total Dollars:
------------- -------------
Name:____________________________________________________________________ _________________________________ ____________________
Address:____________________________________________________________________________________________________________________________
City, State, Zip:___________________________________________________________________________________________________________________
Telephone:__________________________________________________________________________________________________________________________
Goods or Services:__________________________________________________________________________________________________________________
