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EXHIBIT 10.1
CDMA 1900
SPRINTCOM
ADDITIONAL AFFILIATE AGREEMENT
BETWEEN
ALAMOSA PCS LLC
AND
NORTHERN TELECOM INC.
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TABLE OF CONTENTS
ARTICLE PAGE
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1. DEFINITIONS 1
2. SCOPE 7
3. PURCHASE ORDERS 8
4. PRICE 9
5. SELLER FINANCING 10
6. PAYMENT 11
7. DELIVERY, RISK OF LOSS, TITLE 13
8. WARRANTIES, REMEDIES AND LIMITATION OF WARRANTIES AND
REMEDIES AND DISCLAIMERS OF WARRANTIES AND LIABILITY 14
9. FORCE MAJEURE 18
10. PATENT OR COPYRIGHT INFRINGEMENTS 18
11. SOFTWARE LICENSE 19
12. SOFTWARE CHANGES 19
13. REMEDIES 20
14. ACCEPTANCE TESTING 21
15. COVERAGE, INTERFERENCE AND THIRD-PARTY FACILITIES 23
16. REGULATORY COMPLIANCE 23
17. CHANGES 24
18. CONDITION OF INSTALLATION SITE(S) 26
19. RELEASE OF INFORMATION 26
20. CONFIDENTIALITY 27
21. INTERCONNECTION 27
22. ANNEXES 28
23. GENERAL 29
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TABLE OF CONTENTS (CONT)
ANNEXES
ANNEX 1 - EQUIPMENT/PRICING
ANNEX 2 - SERVICES
ANNEX 3 - TURNOVER AND ACCEPTANCE NOTICES
ANNEX 4 - SELLER WARRANTY SERVICES
ANNEX 5 - SOFTWARE LICENSE
ANNEX 6 - DOCUMENTATION
ANNEX 7 - ADJUNCT PLATFORMS
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CDMA 1900
SPRINTCOM
ADDITIONAL AFFILIATE AGREEMENT
AGREEMENT dated December 21, 1998, by and between Alamosa PCS LLC (hereinafter
referred to as "Buyer") a Texas corporation with offices located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and Northern Telecom Inc., a Delaware corporation
with offices located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Nortel" or "Seller").
WITNESSETH:
WHEREAS, SprintCom has designated Buyer an Additional Affiliate and Seller has
approved such designation in accordance with the Nortel/SprintCom contract dated
October 1, 1997 ("SprintCom Contract"); and
WHEREAS, Buyer desires to purchase certain equipment and/or services from
Seller;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS
As used herein, the following capitalized terms have the following
meanings:
1.1 "ADDITIONAL AFFILIATE" shall mean any entity designated by SprintCom
and approved by Seller which has been licensed by the FCC or
otherwise has the right to provide PCS in the United States, but
which is not an Initial Affiliate provided that, (i) SprintCom or any
Initial Affiliate has at least a ten percent (10%) equity ownership
in such entity, (ii) such entity is controlled by or under the common
control with SprintCom or any Initial Affiliate, or (iii) there
exists between SprintCom and the entity an Additional Affiliate
Arrangement.
1.2 "ADDITIONAL AFFILIATE ARRANGEMENT" shall mean a formal arrangement
related to or in connection with SprintCom's buildout of the
Nationwide Network or any part thereof between SprintCom and a party
to be designated an Additional Affiliate
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under the terms of SprintCom Contract, which arrangement will
include, an agreement on marketing and any one or more of the
following: backhaul, common billing, resale agreements and/or revenue
sharing; provided that roaming agreements and/or arrangements alone
will not by themselves constitute Additional Affiliate Arrangements.
1.3 "ADD-ON EQUIPMENT" shall mean the Equipment other than that
comprising a portion of the Initial System, which Equipment requires
Seller's engineering and Installation/Commissioning Services.
1.4 "ADJUNCT PLATFORM" shall mean third party hardware and/or software,
onto which Seller has added software in support of the applications
listed in Annex 7 hereof ("Value-added Software") and in some cases,
integrated such third-party hardware and Value-added Software into a
system providing peripheral functionality for the DMS-MTX, all more
fully described in Annex 7, "Adjunct Platforms."
1.5 "AFFILIATES" shall mean the collective reference to the Initial
Affiliates and the Additional Affiliates.
1.6 "APPLICABLE PERMITS" shall mean any waiver, exemption, zoning,
building, variance, franchise, permit, authorization, approval,
license or similar order of or from any North American or foreign,
federal, state, provincial, county, municipal, regional,
environmental or other governmental body, instrumentality, agency,
authority, court or other body having jurisdiction over all or any
part of any PCS System, the Nationwide Network or the Work to be
performed pursuant to the terms of this Agreement.
1.7 "APPROVED CIQ" shall mean a Customer Information Questionnaire for
ordered DMS-MTX(s) or BSCs, which such Customer Information
Questionnaire has been executed by authorized representatives of both
parties.
1.8 "BASE STATION CONTROLLER (`BSC')" shall mean Seller engineered
Equipment providing radio channel management between the Switch and
the BTS. The BSC includes the Base Station Manager ("BSM").
1.9 "BASE TRANSCEIVER STATION (`BTS')" shall mean Seller engineered
Equipment, controlled by the BSC, providing the radio link with
mobile subscribers.
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1.10 "CODE DIVISION MULTIPLE ACCESS (`CDMA')" shall mean CDMA-based
telecommunication services provided by the System, operational in the
1900 MHz band.
1.11 "COMMISSIONING" shall mean the on-site validation of Equipment
performance by Seller in accordance with the standard test procedures
of Seller and/or the applicable OEM Equipment vendor, as such
procedures are more fully described in Section 14.1 and Schedule B of
Annex 2 hereof; provided, however, that validation of certain OEM
Equipment (i.e., Commissioning Criteria not included under Schedule B
of Annex 2) may be at additional charge to Buyer.
1.12 "DATABASE ENGINEERING" shall mean the Services provided by the Seller
with respect to the creation and integration of the configuration
files and datafill required to operate Equipment, pursuant to a
Purchase Order accepted by Seller.
1.13 "DEFECTS AND DEFICIENCIES" "DEFECTS OR DEFICIENCIES," OR "DEFECTS"
shall mean any one or a combination of the following items: (a) when
used with respect to the performance of Services (including
performance by Seller's subcontractors), such Services that are not
provided in a workmanlike manner and in accordance with the standards
and/or specifications set forth herein; (b) when used with respect to
structures, materials, and Equipment (whether provided by Seller or
Seller's subcontractors), such items that are not new and of good
quality and free from improper workmanship and defects in accordance
with the standards and/or specifications set forth herein or
established hereunder and standards of good procurement,
manufacturing and construction; (c) in general, (i) Work (including
Work by Seller's subcontractors) that does not conform to the
specifications and/or requirements of this Agreement, or (ii) any
engineering, start-up activities, materials, Equipment, tools,
supplies, or training, as applicable, that (1) does not conform to
the standards and/or specifications set forth herein or established
hereunder, (2) has inferior workmanship, or (3) would materially and
adversely affect the ability of Equipment and/or Services to meet the
applicable performance criteria specified herein on a consistent and
reliable basis.
1.14 "DESIGNATED SWITCH SITE" shall mean with respect to the DMS-MTX, the
location designated by the Buyer to the Seller in the applicable
DMS-MTX Purchase Order to which the Seller is required to deliver,
Install and Commission such DMS-MTX.
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1.15 "DOCUMENTATION" shall mean System documentation, whether in written
or electronic form, delivered to Buyer in the medium set forth in
Buyer's Purchase Order, such media being more fully described in
Annex 6, "Documentation." All Documentation delivered to Buyer shall
be subject to any copyright and confidentiality restrictions.
1.16 "EQUIPMENT" shall mean either singularly or collectively the
Nortel-manufactured Hardware and Software products provided
hereunder. The terms of this Agreement applicable to "Equipment"
shall also be deemed to apply to OEM Equipment, unless otherwise
expressly excluded in this Agreement and subject to the limitations
set forth in Subsection 2.1.5.
1.17 "HARDWARE" shall mean the Nortel manufactured CDMA 1900 MHz hardware
components as may comprise a System, Add-on Equipment, or
Merchandise.
1.18 "INITIAL AFFILIATES" shall mean the collective reference to those
companies listed in Schedule 3 of the SprintCom Contract.
1.19 "INITIAL SYSTEM" shall mean the System and Services initially being
provided hereunder as set forth in Article 1 of Annex 1.
1.20 "INSTALLATION" shall mean the installation of Equipment by Seller as
set forth in Schedule B of Annex 2.
1.21 "INSTALLATION SITE" shall mean the location (continental United
States) specified in Buyer's Purchase Order for Installation of
Equipment.
1.22 "MERCHANDISE" shall mean miscellaneous components of Hardware, with
respect to which no engineering, Installation, or Commissioning are
to be provided by Seller.
1.23 "MTA" shall mean major trading area as defined by the FCC.
1.24 "NATIONWIDE NETWORK" shall mean all of the PCS Systems built or to be
owned and/or operated by SprintCom or its Affiliates in Canada,
Mexico and the United States.
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1.25 "NETWORK" shall mean Buyer's System dimensioned by Seller to
interconnect to the PSTN and intra-System nodes (i.e., MTX, BSC,
BTSs) and to such other nodes which may be further defined.
1.26 "NETWORK ENGINEERING" shall mean those network engineering Services
provided by Seller as described in Schedule A of Annex 2, pursuant to
a Purchase Order accepted by Seller.
1.27 "OEM EQUIPMENT" shall mean miscellaneous items of non-Nortel
equipment made available for sale to Buyer by Seller under this
Agreement, not integrated into the Hardware during the manufacturing
process.
1.28 "PCS SYSTEM" shall mean all Equipment, tools and Software, all system
locations and any property located thereat necessary or required to
provide personal communications services in a given specified
geographic area, as defined in the SprintCom Contract.
1.29 "PROJECT SCHEDULE" shall mean those delivery, installation and/or
in-service dates agreed to by Buyer and Seller.
1.30 "PURCHASE CREDITS" shall mean credits to be applied towards the
purchase of CDMA 1900 Equipment and related Installation and
Commissioning Services under this Agreement as described in Article
5.
1.31 "PURCHASE ORDER" shall mean any purchase order issued by Buyer
hereunder to Seller pursuant to Article 3 of this Agreement.
1.32 "RF ENGINEERING SERVICES" shall mean those RF Engineering Services
provided by Seller pursuant to Schedule A of Annex 2, pursuant to a
Purchase Order accepted by Seller.
1.33 "SERVICES" shall mean those services performed by Seller under this
Agreement.
1.34 "SHIP DATE" shall mean the scheduled date agreed upon by Buyer and
Seller as the date on which the appropriate Equipment shall be
shipped.
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1.35 "SOFTWARE" shall mean (a) the proprietary and/or third party software
computer programs (consisting of firmware and logic instructions in
machine-readable code residing in, or intended to be loaded in
Hardware memories which provide basic logic, operating instructions
and user-related application instructions, but excluding customer
data) as well as associated documentation used to describe, maintain
and use the programs which are integral to any Hardware furnished to
Buyer, and (b) any Software Enhancements, Software Release and
Software Upgrades furnished to the Buyer hereunder. Any reference
herein to Equipment or Software being "sold," "purchased" or the like
is understood to be a reference in fact to the program being
licensed.
1.36 "SOFTWARE COMBINED RELEASE" has the meaning ascribed thereto in
Section 12.3.
1.37 "SOFTWARE ENHANCEMENTS" shall mean modifications or improvements made
to the Software which improve performance or capacity of the Software
or which provide additional functions to the Software.
1.38 "SOFTWARE RELEASE" shall mean (a) the base operating Software for
each of the Switch, BSC and/or BTS Equipment, together with certain
standard incremental subscriber and/or carrier software features
included at Seller's sole discretion, such base operating Software
and standard subscriber and/or carrier features together forming a
base load ("Base Load") as well as, (b) in addition to the Base Load,
certain features that may be activated in increments at Buyer's
option ("Optional Features") upon payment of the applicable fees,
including by way of example and not by limitation, Software features
associated with an Adjunct Platform, which may include Value-added
Software, as described in Annex 7 hereof.
1.39 "SOFTWARE UPGRADES" shall mean periodic updates to the Software
issued by the Seller to the Buyer under Warranty and Software
maintenance obligations to correct Defects or Deficiencies in the
Software (which may be referred to by the Seller as "patches").
1.40 "SPECIFICATIONS" shall mean the specifications and performance
standards of the Equipment as set forth in the applicable sections of
Northern Telecom Practices ("NTPs"), incorporated herein by
reference, including statements in the NTPs as to conformance with
specific Standards. Seller shall have the right, at its sole
discretion to modify, change or amend the Specifications at any time
so long as
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such modification does not result in a material, service-effecting
degradation in the performance of Buyer's Equipment.
1.41 "SPRINTCOM" shall mean SprintCom Inc., a Kansas corporation.
1.42 "STANDARDS" shall mean interim and/or final version(s) of technical
specifications derived by an ANSI accredited standards organization,
governing the operational and/or interface standards for CDMA 1900
equipment.
1.43 "STANDING TIME" shall mean any interruption or delay in the Project
Schedule caused by Buyer.
1.44 "SWITCH" shall mean a Seller engineered DMS-MTX providing CDMA 1900
switching functions.
1.45 "SYSTEM" shall mean the combination of a Switch, and each of one or
more BSC(s) and BTS(s) furnished hereunder.
1.46 "TERM" shall mean the period commencing on the date first set forth
above (hereinafter "Effective Date") and ending three (3) years
therefrom, unless terminated earlier in accordance with the terms and
conditions hereof, or unless extended by the mutual agreement of the
parties hereto.
1.47 "WORK" shall mean performance of the Services as described in
Annex 2.
2. SCOPE
2.1 During the Term, in accordance with a Purchase Order for Equipment
and/or Services which has been accepted by Seller, Seller shall:
2.1.1 provide Network Engineering and RF Engineering Services in accordance
with Schedule A of Annex 2;
2.1.2 engineer, deliver, Install (or have installed) and Commission
Equipment for use in the continental United States;
2.1.3 upon payment of the applicable fees, and in accordance with Annex 5
hereof, grant to Buyer a nonexclusive license to use all Software
associated with, and integral to, Hardware purchased by Buyer
hereunder;
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2.1.4 carry out the Installation and Commissioning of Equipment at the
applicable Installation Site substantially in accordance with the
applicable Project Schedule set forth in Schedule B of Annex 2 and in
accordance with the relevant Purchase Orders;
2.1.5 furnish OEM Equipment to Buyer, including Adjunct Platforms, subject
to such OEM vendor's then-current applicable terms, conditions and
specifications, and in the case of Adjunct Platforms, in accordance
with the terms set out in Annex 7, "Adjunct Platforms";
2.1.6 for System purchases, provide Buyer with on-site technical support in
accordance with Schedule C of Annex 2.
2.2 During the Term, in accordance with a Purchase Order for Equipment
and/or Services which has been accepted by Seller, Buyer shall:
2.2.1 Purchase Equipment and Services including all Services required for
the Installation and Commissioning of all Switch and Switch-related
Equipment, and license use of the Software as listed in and described
in Annex 1 in accordance with the terms of this Agreement.
2.2.2 Perform Buyer's duties as set forth in this Agreement, including by
way of example, but not by way of limitation, those duties set forth
in Annex 2 in accordance with the Project Schedule;
2.2.3 Insure that only qualified technicians perform any maintenance and/or
repair to the Equipment during the Hardware Warranty Period, which
maintenance and/or repair shall be confined to routine tasks
performed in accordance with Seller provided documentation;
2.2.4 Not unreasonably withhold Acceptance, as defined in Article 14.
3. PURCHASE ORDERS
3.1 Notwithstanding that a Purchase Order may not refer to this
Agreement, any Purchase Order for Equipment and/or Services issued
during the Term of this Agreement shall be deemed to have been issued
pursuant to this Agreement and
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shall be governed by the terms and conditions of this Agreement,
unless the parties expressly agree to the contrary in writing (duly
signed by authorized representatives of both parties). Buyer hereby
expressly agrees that except for non-conflicting administrative terms
as provided below, any additional or preprinted terms or conditions
on the applicable Purchase Order, shall be null, void and of no
effect. Each such Purchase Order shall specify:
3.1.1 The description of the ordered Equipment and/or Services, including
any identification referenced in the price list herein attached as
Annex 1;
3.1.2 Requested place and date of delivery as previously agreed by Seller;
3.1.3 Applicable Price for the ordered Equipment and/or Services as set
forth in Annex 1 or as may be separately quoted by Seller from time
to time;
3.1.4 Prices for Network Engineering Services, RF Engineering Services, and
Equipment Installation and Commissioning to be quoted by Seller,
together with a mutually agreed Installation and Commissioning
schedule;
3.1.5 Installation Site(s) where applicable;
3.1.6 Other appropriate information as may be required by Seller necessary
to fill the Purchase Order such as Buyer's floor plan and frequency
plan; and
3.1.7 Location to which the applicable invoice shall be rendered for
payment.
3.2 Any Purchase Order issued by Buyer and not rejected in writing within
ten (10) business days after receipt by Seller shall be deemed
accepted.
4. PRICE
4.1 As set forth in Annex 1, the price ("Price") for any Equipment and
Services shall consist of (i) the Price of the Initial System
Purchase Order or any subsequent Purchase Orders; (ii) unit list
Prices for Hardware, Merchandise, and Services; (iii) license fees to
use the Software associated with such Hardware; and (iv) for OEM
Equipment and Services, the Prices as may be quoted by Seller from
time to time.
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4.2 Unless otherwise specified, the Prices set forth in Annex 1 are
exclusive of Seller's charges for any Services associated therewith.
4.3 The Prices are exclusive of any taxes, which shall be the
responsibility of Buyer pursuant to Section 6.4 hereof.
5. SELLER FINANCING
5.1 Buyer understands and agrees that the execution of this Agreement
constitutes a firm non-cancelable Purchase Order for the Initial
System set forth in Article 1 of Annex 1; provided, such
non-cancelable Purchase Order shall be subject to the execution of
the financing agreement between Buyer and Seller as hereinafter
described.
5.2 Seller shall have no obligation to ship the Initial System or any
portion thereof, until such time as either (i) Seller has formally
committed a financing facility to the Buyer which is satisfactory to
Seller, such facility having been approved by Seller's senior
management, and all preconditions to such financing have been
satisfied; or (ii) Seller determines that Buyer has completed a
financing facility with a third party reasonably satisfactory to
Seller, such facility is available to be drawn upon, and all
preconditions to such financing have been met. Buyer shall provide
all reasonable assistance requested by Seller necessary for Seller to
make such determination including the necessary documentation to
evaluate the financial soundness of any third party lender providing
financing for Buyer's purchases hereunder. Seller shall have no
obligation to ship any additional Equipment or perform any additional
Services until such time as Seller has accepted Purchase Orders with
respect thereto and subject to any credit arrangements agreed upon in
connection with such Purchase Orders.
5.3 Buyer agrees to purchase and take delivery of Equipment and Services
in a net amount (net Price, after applicable Equipment discounts, but
exclusive of sales taxes) totaling not less than seventy-two million
dollars ($72,000,000) during the Term ("Volume Commitment");
provided, such Volume Commitment is subject to the execution of the
financing agreement between Buyer and Seller as described above. Only
Purchase Orders issued under this Agreement shall accrue toward the
Volume Commitment.
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5.4 The Price for any Equipment and Services purchased under this
Agreement and financed by Seller shall include an additional three
percent (3.0%) ("Financing Premium") over Additional Affiliate
pricing as set forth in Annex 1.
5.5 On March 1, 2000, Seller will make available as Purchase Credits an
aggregate amount of two hundred and forty-three thousand dollars
($243,000). Such Purchase Credits may be applied to any Purchase
Order issued hereunder for Seller's Equipment and/or Services after
March 1, 2000 and continuing throughout the remainder of the Term or
until the total amount of Purchase Credits has been expended,
whichever occurs first; provided, however, such Purchase Credits
shall not reduce the Price of any Purchase Order by more than fifty
percent (50%).
5.6 Notwithstanding the foregoing, Buyer expressly acknowledges that
Seller makes no commitment and has no obligation whatsoever to
provide financing to Buyer under this Agreement and any such
commitment on the part of Seller shall be made only in separate
financial agreement.
6. PAYMENT
6.1 With respect to Purchase Orders for Equipment that include
Installation and Commissioning Services therefor, Buyer shall pay
Seller the Price in accordance with the following schedule:
6.1.1 Equipment and Services
6.1.1.1 100% of the Equipment Price contained in Purchase Orders shall be
invoiced by Seller incrementally upon shipment of the Equipment.
6.1.1.2 100% of the Services prices contained in Purchase Orders shall be
invoiced by Seller, (i) upon completion of such Service or, (ii) for
that amount which is equal to the percentage of Services completed at
the end of each month in which such Service(s) were performed,
whichever occurs first.
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6.1.2 Software Fees
6.1.2.1 100% of the first Software Fee (as defined in Section 2.5 of Annex 1)
applicable to each DMS-MTX will not be invoiced until the earlier of
(i) the commercial, revenue-producing service of each DMS-MTX; or
(ii) ninety (90) days after Buyer's Acceptance of Sellers
Installation of such DMS-MTX pursuant to Schedule B of Annex 2;
thereafter, annual Software Fees for any such DMS-MTX will be
invoiced annually on the anniversary date of such first invoice.
6.2 Any additional monies that become due to Seller (including, without
limitation, Merchandise orders, freight, such items as are described
in Section 6.4, Software Release license fees described in Article 2
of Annex 1, Equipment purchases wherein Installation is not provided
by Seller, or OEM Equipment not part of the original System order)
shall be invoiced one hundred percent (100%) upon shipment or, in the
case of Software license fees other than the Software Fee, upon
implementation of such Software. Any cancellation charges due Seller
pursuant to Section 17.5 shall be invoiced upon receipt of Buyer's
written cancellation notice. Incidental and/or additional Services
not included under Section 6.1 shall be invoiced monthly as performed
or upon completion, whichever occurs first.
6.3 Buyer shall pay all amounts invoiced by Seller pursuant to this
Article 6 within thirty (30) days from the date of Seller's invoice
therefor. All past due amounts (collectively, "Past Due Amounts")
shall bear interest at the rate of one and one-half percent(1 1/2%)
per month (or such lesser rate as may be the maximum permissible rate
under applicable law), beginning with the date on which the
applicable Past Due Amount was due and payable.
6.4 Buyer shall promptly reimburse and/or pay Seller, upon demand, or
shall pay directly, if so requested by Seller, all taxes and charges,
including without limitation, penalties and interest, imposed by any
federal, state, or local governmental or taxing authority, relating
to the purchase, license, ownership, possession, use, operation or
relocation of Equipment or Services provided by Seller under this
Agreement, excluding, however, all taxes computed upon the net income
of Seller; provided, however, Seller shall be responsible for any
additional
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penalties or interest imposed by any governmental or taxing authority
due solely to Seller's failure to timely notify Buyer of such taxes
and charges or to take such other timely action as may be required
with respect to any such taxes that Seller is required by law to
collect. To the extent Seller is required by law to collect such
taxes (state or local), one hundred percent (100%) thereof shall be
added to invoices as separately stated charges and paid in full by
Buyer, unless the Buyer is exempt from such taxes and furnishes
Seller with a certificate of exemption in a form reasonably
acceptable to Seller prior to issuance of such invoice. Each party
shall hold the other party harmless from any and all claims levied by
a proper taxing authority for such taxes, including any interest,
penalties or late charges due to the other party's failure to perform
hereunder. Each party's obligations pursuant to this Section 6.4
shall survive the expiration of termination of this Agreement.
6.5 Until the total Price for each Purchase Order is paid to Seller,
Seller shall retain and Buyer hereby grants to Seller a purchase
money security interest in the Equipment, and Buyer shall cooperate
with Seller in perfecting such interest.
6.6 Prior to payment in full of the Price and all additional monies due
to Seller, without written permission of Seller, Buyer shall not sell
or lease Equipment purchased by it, or assign any license to use the
Software, or allow any liens or encumbrances to attach to any such
Equipment, or remove such Equipment or Software from the Installation
Site.
6.7 Seller reserves the right to require reasonable assurances of payment
by Buyer as a condition to accepting certain Purchase Orders. Seller
may, from time to time, evaluate Buyer's credit standing, and on that
basis, establish a credit limit to accommodate Buyer's issuance of
Purchase Orders as herein provided.
7. DELIVERY, RISK OF LOSS, TITLE
7.1 Equipment shall be priced and shipped F.O.B. place of shipment.
Seller will pre-pay freight charges from the place of shipment and
invoice such charges back to Buyer. Switch and/or BSC Equipment shall
be shipped to the Installation Site(s). BTS Equipment shall be
shipped to Buyer's designated delivery location (i.e., a staging
center or warehouse). Buyer shall be responsible for the coordination
of all BTS delivery arrangements required to comply with Project
Schedule dates and for
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freight and handling charges from Buyer's delivery location to the
Installation Sites.
7.2 Title to Equipment furnished by Seller to Buyer in accordance with
this Agreement shall pass to Buyer at the point and on the date of
shipment. Risk of loss or damage to such Equipment shall pass to
Buyer upon delivery of such Equipment at the initial destination
specified in Buyer's Purchase Order. Seller warrants to Buyer that
such title shall be good and clear title, free and clear of all liens
and encumbrances. The foregoing notwithstanding, title to Software
shall not pass to Buyer at any time.
7.3 Not later than thirty (30) days prior to the earliest Ship Date
relating to any of the items covered by the applicable Purchase
Order, Buyer may notify Seller that Buyer (i) does not wish to
receive shipment of any Equipment on the Ship Date, or (ii) that
Buyer's facilities are not prepared pursuant to Annex 2 hereof in
sufficient time for Seller to make delivery pursuant to the Ship
Date. In such case Seller shall have the right to place such
Equipment in storage and Buyer shall be liable for all additional
transportation, demurrage, loading, storage, and associated costs
thereby incurred by Seller. The shipment of Equipment to a storage
location as provided in this Section 7.3 shall be deemed to
constitute shipment and/or delivery of the Equipment for purposes of
invoicing as set forth in Section 6.1.1.1, passage of title and risk
of loss, and commencement of the Hardware Warranty Period.
8. WARRANTIES, REMEDIES AND LIMITATION OF WARRANTIES AND REMEDIES AND
DISCLAIMERS OF WARRANTIES AND LIABILITY
8.1 Hardware Warranty
8.1.1 Seller warrants that for a period of two (2) years from the date of
Buyer's Acceptance of the Hardware furnished under this Agreement
("Hardware Warranty Period"), shall be free from defects in material
and workmanship, and shall conform to the applicable portions of the
Specifications. Any and all claims for breach of this warranty are
conclusively deemed waived unless made during the Hardware Warranty
Period. Performance of Seller's obligations hereunder shall not
extend the Hardware Warranty Period, except that any Hardware
repaired, replaced or corrected during this period shall continue to
be warranted for the balance of the Hardware Warranty Period.
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8.2 Service Warranty
8.2.1 Seller warrants that for a period of one (1) year from the date of
completion of such Service ("Service Warranty Period"), including
Installation and Commissioning, as the case may be, provided by the
Seller to the Buyer pursuant to the terms of this Agreement, such
Services will be, (i) in accordance with the applicable
Specifications, (ii) in compliance with all material applicable laws
and material Applicable Permits in effect at the time of the
completion of such Services, and (iii) free from Defects or
Deficiencies in design, materials, workmanship or otherwise.
8.3 Software Warranty
Seller warrants that for a period of two (2) years commencing on the
date of Seller's Acceptance of the Software ("Software Warranty
Period"), provided the Software is not altered by Buyer, and provided
the Software is used in conjunction with the Hardware purchased under
this Agreement and such Hardware has been maintained in accordance
with Seller's recommended maintenance procedures, the Software shall
function during the Software Warranty Period without defects which
materially affect Buyer's use of the Software in accordance with
Seller's Specifications for the Software. In the event the Software
fails to so perform and Buyer's use of the System is materially
affected by such failure, Buyer's exclusive remedy under this
warranty is to require Seller to correct such failure and such remedy
is conditioned upon Seller's receiving written notice (or oral notice
promptly confirmed in writing) within this period of such failure.
The correction of any Software failure shall not extend the Software
Warranty Period.
8.4 Seller's sole obligation and Buyer's exclusive remedy under this
warranty are limited to the replacement or repair, at Seller's
option, of the defective Hardware component, or the correction of
Software failures or faulty Services. Such replacement Hardware may
be new or reconditioned to perform as new, at Seller's option. Buyer
shall be responsible for deinstallation of any such defective
Hardware and reinstallation of any replacement Hardware, as well as
risk of loss and transportation costs for defective Hardware shipped
to Seller. Seller shall bear the risk of loss and transportation
costs for replacement Hardware shipped to Buyer.
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Title to defective or replacement Hardware shall pass to Seller or
Buyer, as appropriate, upon receipt thereof.
8.5 Response Services/Time
8.5.1 During the Warranty Period, Seller's technical assistance service
("TAS") department shall provide reasonable assistance in the
investigation and resolution of service-affecting warranty Defects
and/or Deficiencies. If such assistance is requested by Buyer, Buyer
agrees to follow Seller's standard policies and procedures related to
such TAS services as set forth in Annex 4, "Seller Warranty
Services." The Hardware Warranty Period shall include TAS only to the
extent that any TAS services provided under the Switch warranty also
apply to Hardware operating in conjunction with the applicable
Switch. For routine warranty service situations, Seller shall ship
replacement or repaired Hardware (or components thereof) within
thirty (30) days of receipt of the defective Hardware (or components
thereof) from Buyer.
8.5.2 For emergency warranty service situations, Seller shall, during the
Hardware Warranty Period, use all reasonable efforts to ship
replacement Hardware (or components thereof) within twenty-four (24)
hours of notification of the warranty Defect and/or Deficiency by
Buyer. Buyer shall pay to Seller the surcharge set forth in Annex 4,
for such expedited shipment of replacement Hardware. Buyer shall ship
the defective Hardware to Seller within thirty (30) days of receipt
of the replacement Hardware. In the event Seller fails to receive
such defective Hardware within such thirty (30) day period, Seller
shall invoice Buyer for the replacement Hardware at the then-current
price in effect therefor. For the purpose of this Agreement, an
emergency shall be deemed to exist upon the occurrence of a Priority
E1 or E2 problem, as defined in Annex 4.
8.6 OEM Equipment
8.6.1 Miscellaneous OEM Equipment furnished in conjunction with a Switch,
(i.e., terminals and printers), shall be warranted in accordance with
the Hardware warranties set forth in Section 8.1 and handled through
Seller's Repair and Return
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department. With respect to all other OEM Equipment ordered by Buyer,
OEM Equipment shall be warranted directly by such OEM vendors in
accordance with their standard terms and conditions, including by way
of example and not by limitation, such vendor's standard response
time(s) and procedure(s) for repair and return. Except for the
warranty of title extended in Section 6.2 hereof, the warranties
provided in this Section 8.6 are Buyer's sole and exclusive remedy
with respect to OEM Equipment provided by Seller under this
Agreement.
8.7 THE WARRANTIES AND REMEDIES SET FORTH ABOVE CONSTITUTE THE ONLY
WARRANTIES WITH RESPECT TO THE EQUIPMENT AND SERVICES PROVIDED, AND
BUYER'S EXCLUSIVE REMEDIES IN THE EVENT SUCH WARRANTIES ARE BREACHED.
THEY ARE IN LIEU OF ALL OTHER WARRANTIES WRITTEN OR ORAL, STATUTORY,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL DAMAGES OF ANY NATURE WHATSOEVER.
8.7.1 Seller's obligations under this Article 8 shall not apply to (i)
Equipment or components thereof such as fuses and bulbs that are
normally consumed in operation, or have a normal life inherently
shorter than the Hardware Warranty Period; (ii) defects that are the
result of improper storage, installation, use, maintenance or repair
by the Buyer (including, without limitation, operation of the
Equipment outside the environmental parameters defined in the
Specifications); (iii) improper operation of Equipment with other
hardware or software used by Buyer, including the operation of
Equipment with hardware or software not authorized by Seller for use
with the Equipment, or use of the Equipment with any improperly
operating hardware or software not supplied by Seller under this
Agreement; (iv) Equipment or components thereof that due to no fault
of Seller have been subjected to any other kind of misuse or
detrimental exposure or have been involved in an accident, fire
explosion, any other cause not attributable to Seller, or Act of God,
or (v) Equipment or Installation Services altered, repaired,
installed or relocated by any party other than Seller or Seller's
agents. For purposes of subsection (v), "install" shall not mean the
routine plug-in of the components done in accordance with NTP
guidelines.
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9. FORCE MAJEURE
If the performance of this Agreement, or of any obligation hereunder
except for the obligations set forth in Article 4 is prevented,
restricted or interfered with by reason of fires, breakdown of plant,
labor disputes, embargoes, government ordinances or requirements,
civil or military authorities, acts of God or of the public enemy,
acts or omissions of carriers, inability to obtain necessary
materials or services from suppliers, or other causes beyond the
reasonable control of the party whose performance is affected, then
the party affected, upon giving prompt notice to the other party, as
set forth in Section 23.2 shall be excused from such performance on a
day-for-day basis to the extent of such prevention, restriction, or
interference (and the other party shall likewise be excused from
performance of its obligations on a day-for-day basis to the extent
such party's obligations relate to the performance so prevented,
restricted or interfered with); provided that the party so affected
shall use reasonable efforts to avoid or remove such causes of
non-performance and both parties shall proceed to perform their
obligations with dispatch whenever such causes are removed or cease.
10. PATENT OR COPYRIGHT INFRINGEMENTS
10.1 Seller agrees to indemnify Buyer with respect to any suit, claim, or
proceeding brought against Buyer alleging that Buyer's use of the
Equipment constitutes an infringement of any United States patent or
copyright. Seller agrees to defend Buyer against any such claims and
to pay all litigation costs, reasonable attorney's fees, settlement
payments and any damages awarded in any final judgment arising from
such suit, claim or proceeding; provided, however, that Buyer shall
promptly advise Seller of any such suit, claim, or proceeding and
shall cooperate with Seller in the defense or settlement of such
suit, claim or proceeding and provided Seller shall have sole control
thereof.
10.2 In the event that an injunction is obtained against Buyer's use of
Equipment arising from such patent or copyright suit, claim or
proceeding, in whole or in part, Seller shall, at its option, either:
(i) procure for Buyer the right to continue using the portion of a
System enjoined from use; or (ii) replace or modify the same so that
Buyer's use is not subject to any such injunction.
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10.3 In the event that Seller cannot perform under Section 10.2, Buyer
shall have the right to return such Equipment or portion thereof to
Seller upon written notice to Seller and in the event of such return,
neither party shall have any further liabilities or obligations under
this Agreement, except that Seller shall refund the depreciated value
of any such Equipment or portion thereof as carried on the Buyer's
books at the time of such return.
10.4 Seller's indemnity obligations under Section 10.1 shall not apply to
infringement claims (i) arising from any portion of the Equipment
that is manufactured to Buyer's design, (ii) arising from the use of
the Equipment in combination with any other apparatus or material not
supplied by Seller to the extent that the claims arise from such
combination usage, or (iii) alleging that method of use claims in
such patent are infringed by any service offering and/or by any use
by Buyer of Equipment furnished hereunder to make such service
offering available to the extent such service offering or use is not
described by Seller in its Specifications.
10.5 The foregoing states the entire liability of Seller for patent or
copyright infringement by the Equipment. Seller shall have no
liability whatsoever for any patent or copyright infringement arising
from Buyer's use of the OEM Equipment, and Seller makes no warranty
with respect thereto.
11. SOFTWARE LICENSE
11.1 With respect to Equipment containing Software acquired under this
Agreement and upon payment of the appropriate license fees as set
forth in Section 2.5 of Annex 1, Buyer is hereby granted a
non-exclusive, non-transferable (except as set forth in Annex 5)
license to use the Software in accordance with the terms set forth in
Annex 5, "Software License." Buyer is granted no title or ownership
rights to the Software, which rights shall remain in Seller or
Seller's suppliers as appropriate. The license fees paid by Buyer
shall cover fees for Software as described in Section 2.5 of Annex 1.
11.2 The obligations of Buyer under this Article 11 and Annex 5 shall
survive the expiration or termination of this Agreement.
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12. SOFTWARE CHANGES
12.1 Software Upgrades will be provided by Seller at no charge to Buyer
during the Software Warranty Period.
12.2 Software Enhancement license fees shall be quoted by Seller at
Buyer's request and assume that Buyer's System is operating on
Software at the same level of maintainability as set forth in Section
12.4. Otherwise, retrofitting features from a new Software Release
onto Buyer's System shall be considered and quoted by Seller on a
case-by-case basis. Additionally, future Hardware purchases may
require the support of a then-current Software Release. Buyer
acknowledges that any Software Enhancement may require the purchase
of additional Hardware by Buyer.
12.3 In the event the Seller at any time issues a Software Upgrade which
is combined with any Software Enhancement (collectively the "Software
Combined Release") to such Software, the Software Combined Release
will be quoted by Seller at Buyer's request.
12.4 If Buyer elects to remain on a prior Software Release, Seller's sole
obligation hereunder shall be to make available maintenance for the
Software for the previous two consecutive releases from the
then-current, Seller-numbered release (i.e., numbered Software
Release).
12.5 Buyer further acknowledges that the proper operation of the Equipment
and/or the availability of certain Optional Features is dependent
upon having the appropriate Software Release installed, as
applicable, to the Switch, BSC and/or BTS Equipment.
13. REMEDIES
13.1 In the event Buyer ceases to be an Additional Affiliate, Seller shall
have the right to immediately terminate this Agreement in its
entirety upon written notice to Buyer, provided, however, the parties
may mutually agree to modify the Agreement establishing new
non-Additional Affiliate prices, terms and conditions.
13.2 Seller shall have the right to suspend its performance under this
Agreement by written notice to the Buyer and forthwith remove and
take possession of any portion of the Equipment that has been
delivered if the Buyer, prior to payment to Seller of
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the Price, shall become insolvent or bankrupt, make a general
assignment for the benefit of, or enter into any arrangement with
creditors, file a voluntary petition under any bankruptcy,
insolvency, or similar law, or have proceedings under any such laws
or proceedings seeking appointment of a receiver, trustee or
liquidator instituted against it which are not terminated within
thirty (30) days of such commencement.
13.3 In the event of any material breach of this Agreement by either party
which shall continue for thirty (30) or more days after written
notice of such breach (including a reasonably detailed statement of
the nature of such breach) shall have been given to the breaching
party by the aggrieved party, the aggrieved party shall be entitled
at its option:
13.3.1 if the aggrieved party is the Buyer, to suspend its performance under
Article 6 with regard to Equipment or Services affected by the breach
of the Agreement for so long as the breach continues uncorrected or;
13.3.2 if the aggrieved party is Seller, to suspend performance of all of
its obligations under the Agreement for so long as the breach
continues uncorrected or;
13.3.3 to avail itself of any and all remedies available at law or equity
whether or not it elects to suspend its performance under Subsection
13.3.1 or 13.3.2 as applicable.
13.4 EXCEPT WITH RESPECT TO A BREACH OF ARTICLE 11, SOFTWARE LICENSE, OR
ARTICLE 20, CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR
INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY NATURE
WHATSOEVER FOR ANY ACTION OR INACTION ARISING UNDER THIS AGREEMENT.
13.5 Any action for breach of this Agreement or to enforce any right
hereunder shall be commenced within two (2) years after the cause of
action accrues or it shall be deemed waived and barred (except that
any action for nonpayment may be brought at any time permitted by
applicable law).
14. ACCEPTANCE TESTING
14.1 On completion of Installation of Equipment furnished and installed by
Seller, Seller
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shall provide Buyer ten (10) working days prior written notification
that such Equipment is ready for Commissioning. Following such
notification, Buyer agrees to have a representative present to
witness and acknowledge completion of such testing. Seller or
Seller's subcontractor, as applicable, shall test the Equipment in
accordance with its standard testing procedures to determine
Equipment conformity with the standards and specifications
(hereinafter "Commissioning Criteria") of the applicable Seller
installation manuals, as may be amended from time to time.
14.2 On the date that such Commissioning has been successfully completed,
Seller shall turn the Equipment over to Buyer ("Turnover"). On the
date of Turnover, Buyer shall complete and return to Seller the
"Turnover Notice" as described in Annex 3.
14.3 For purposes of this Agreement, the occurrence of any of the
following shall be deemed to constitute "Acceptance" of the
Equipment:
14.3.1 Within ten (10) working days following the date of Turnover, Buyer
shall either accept the Equipment in writing as provided in Annex 3,
"Acceptance Notice," or notify Seller in writing specifying in
reasonable detail those particulars in which the Equipment does not
meet the Commissioning Criteria. With respect to any such
particulars, Seller shall promptly proceed to take corrective action,
and following correction, Buyer shall accept the Equipment in
writing.
14.3.2 The failure of Buyer to notify Seller within ten (10) working days
after Turnover (or, in the case of correction, ten (10) working days
following such correction) of any particulars in which the Equipment
does not meet the Commissioning Criteria, or the use by Buyer of the
Equipment or any portion thereof in revenue-producing service at any
time, shall be deemed Acceptance of such Equipment.
14.4 Acceptance of Equipment not installed by Seller shall be deemed to
occur upon receipt of and inspection by Buyer, but no later than five
(5) days from receipt thereof. In the event of a defect in the
Equipment, Buyer shall notify Seller in writing specifying, in
reasonable detail, the defect within five (5) days
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of receipt or Acceptance shall be deemed to have occurred.
15. COVERAGE, INTERFERENCE AND THIRD-PARTY FACILITIES
15.1 Seller shall have no liability as a result of non-performance,
failures or poor performance of the System caused by, resulting from
or attributable to Buyer-provided specifications or equipment
configuration requirements, which are inconsistent with
Specifications. Seller may rely upon and utilize any Buyer-provided
designs, studies, specifications or requirements, including but not
limited to microwave path studies, RF propagation studies and tower
location and loading requirements, without liability for
non-performance, failures or performance of the System caused by,
resulting from or attributable to any such Buyer-provided designs,
studies, specifications or requirements.
15.2 Seller shall not be responsible for any failures or inadequacies of
performance resulting from equipment not supplied and installed by
Seller or Seller's agents or subcontractors pursuant to this
Agreement. Seller shall not be responsible for interference or
disruption of service caused by operation of other radio systems,
lightning, motor ignition or other similar interference. In the event
Buyer utilizes facilities or services supplied by others such as
common carrier circuits, antennas or towers, Buyer shall have the
total responsibility for the availability or adequacy of such
services or facilities.
16. REGULATORY COMPLIANCE
16.1 Seller shall use all reasonable efforts to furnish and install
Equipment so that it shall comply in all material respects with all
Federal, State, and local laws and regulations in force on the
Effective Date of this Agreement, which directly impose obligations
upon the manufacturer, Seller, or installer thereof.
16.2 The Prices set forth for the Equipment described herein are based on
Seller's design, manufacture, and delivery of the Equipment pursuant
to its design criteria and manufacturing processes and procedures in
effect on the Effective Date. If, as a result of the imposition of
requirements by any Federal, State or local government during the
Term of this Agreement there is a change in such criteria, processes
or procedure or any change in the Equipment, the Prices will be
adjusted equitably to
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reflect the added cost and expense of such change. Any such changes
shall include, by way of example and not by way of limitation,
mandatory compliance with Standards or government requirements.
17. CHANGES
17.1 Up to ninety (90) days prior to the scheduled Ship Date (or such
later time as is acceptable to Seller), Buyer may request Equipment
addition(s) or deletion(s) to an original Equipment configuration.
All such Equipment reconfigurations or changes to the Statement of
Work or Project Schedule ("Changes") shall be subject to prior
written approval of Seller.
17.2 Except as provided in 17.3 below, all Changes shall be documented in
a written change order ("Change Order"), which shall be executed by
Buyer and returned to Seller prior to implementation of the requested
Changes. The Change Order shall detail any adjustments to the Price,
Statement of Work or Project Schedule required by Seller for any
aspect of its performance under this Agreement.
17.3 Buyer understands and agrees that the Price is based on Seller's
providing the Services only as herein specified. Should any factors
(e.g., changed site conditions) cause an increase in the extent of
Services to be provided, Seller may, without liability, temporarily
suspend performance and promptly notify Buyer of such factors and
request a Change Order to reflect any increased costs of Seller's
performance and/or Seller's performance of additional Services. Upon
Buyer's authorization, such Changes shall be documented in a Change
Order. Seller shall also be granted an equitable extension in the
time for performance due to the occurrence of any such changed
conditions or other factors outside Seller's control.
17.3.1 Seller shall have no liability for delays caused by or attributable
to obtaining FCC permits or other permits, certificates or
applications requiring approval of local, state or federal agencies
or for delays that occur due to Buyer's or Seller's or Seller's
agent's inability to obtain clear title to real estate, local
construction ordinances, or other similar obstructions relative to
site acquisition. All such delays shall be regarded as force majeure
events under Article 9.
17.3.2 Upon written request of Buyer for a Change that entails additional
services totaling $10,000, or less, and
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upon written acceptance thereof by Seller, Seller will proceed in
good faith to implement such Change prior to receipt of an executed
Change Order. Within five (5) days following Buyer's written request,
the parties shall agree upon an appropriate price for such Changes,
all of which will be summarized in a subsequent Change Order and
executed by an authorized representative of Buyer within fifteen (15)
days following the date of the request for Change.
17.4 Calculations for any Equipment reconfigurations prior to the Ship
Date shall be based on Prices set forth in Annex 1, provided that (i)
any additions shall include any necessary engineering, Installation
and testing charges and (ii) any deletions shall include applicable
discounts, and further provided that the net cumulative amount of
Changes shall not reduce the Price of a Purchase Order by more than
ten percent (10%).
17.5 Except for the Initial System Purchase Order described in Article 5,
Buyer may elect to cancel, upon prior written notification to Seller,
subsequent Purchase Orders prior to shipment of Equipment subject to
the following:
17.5.1 Without charge, Buyer may cancel any such subsequent Purchase Order
no later than ninety (90) days prior to the earliest scheduled Ship
Date; or
17.5.2 If Buyer cancels any subsequent Purchase Order less than ninety (90)
days prior to the earliest scheduled Ship Date, Buyer shall pay a
cancellation charge of ten percent (10%) of the Price to Seller; or
17.5.3 If Buyer cancels any subsequent Purchase Order less than sixty (60)
days prior to the earliest scheduled Ship Date, Buyer shall pay to
Seller a cancellation charge of fifteen percent (15%) of the Price;
or
17.5.4 If Buyer cancels any subsequent Purchase Order less than thirty (30)
days prior to the earliest scheduled Ship Date, Buyer shall pay to
Seller a cancellation charge of twenty percent (20%) of the Price.
17.5.5 Buyer may not cancel a Purchase Order subsequent to the Ship Date.
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17.5.6 The payment of such charges as are described in this Section 17.5
shall be Seller's sole remedy and Buyer's sole obligation for such
canceled Purchase Order(s).
18. CONDITION OF INSTALLATION SITE(S)
Based on reasonable due diligence, Buyer warrants that, to the best
of its knowledge, all Installation Site(s) are free from friable
asbestos or other hazardous materials or contamination. In the event
that such contamination is found to be present at the Installation
Site, Seller shall be relieved of all of its delivery and
Installation obligations hereunder until such contamination is
removed. Delivery of any Equipment affected by such contamination
shall be managed in accordance with and subject to Article 7. In the
event that Buyer fails or refuses to remove such contamination,
Seller shall have the right to remove the Equipment or portions
thereof if already delivered and relocate the Equipment to an
alternate site provided by Buyer and charge Buyer for (i) any
additional delivery charges to the new Installation Site, (ii) all
materials expended at the site including cabling, permanently affixed
equipment, and those items which cannot reasonably be removed for use
elsewhere, (iii) specifically ordered items requested by Buyer, and
(iv) all labor and materials expended at the sites relating to the
relocation using Seller's then current rates.
19. RELEASE OF INFORMATION
19.1 Unless required by law, or as otherwise permitted under this
Agreement, Buyer and Seller agree that the terms and conditions of
this Agreement shall not be disclosed to any other party without the
prior written consent of the other; provided, however, that Seller
may release information to (i) Northern Telecom Ltd., its research
and development affiliates or any majority-owned subsidiaries of such
companies on a need-to-know basis and/or (ii) a subcontractor or
potential subcontractor of Seller for purposes of performance of this
Agreement.
19.2 Neither Buyer nor Seller shall publish or use any advertising, sales
promotion, press releases or publicity matters relating to this
Agreement without the prior written approval of the other.
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20. CONFIDENTIALITY
Buyer, Seller and Seller's affiliates shall receive in confidence
from each other all technical information, business information,
documentation and expertise which is either (i) stamped or otherwise
marked as being confidential or proprietary whether in written or
electronic form, or (ii) if delivered in oral form, is summarized in
a written memorandum within ten (10) days thereafter and listed as
being confidential ("Confidential Information") and shall not, except
as previously authorized in writing by the other party, publish,
disclose or make use of such information (except as required by law
and after notice to the other party), unless and until the
Confidential Information shall have ceased to be proprietary as
evidenced by general public knowledge or shall have been legally
acquired by such party; provided, however, that either party may
provide such Confidential Information, or portions thereof, to Sprint
Spectrum as may be necessary in connection with the build out of the
Nationwide Network or the performance of the activities contemplated
by this Agreement. This prohibition against disclosure, publication
or use of Confidential Information shall not restrict either party
from developing similar information in the exercise of its own
technical skill, so long as such other information is independently
developed by such party without making use of Confidential
Information.
21. INTERCONNECTION
21.1 Buyer is given the option to purchase individual units of Equipment
hereunder, and Buyer understands that such units of Equipment
purchased hereunder do not necessarily provide Buyer with a complete
System. In some cases, Buyer may intend to interconnect the Equipment
to equipment and facilities for interconnection which may not have
been purchased under this Agreement. In the event that Buyer
interconnects Equipment to equipment not purchased under this
Agreement, it is understood and agreed that the making and
maintaining of all necessary arrangements (whether commercial, legal
or otherwise) with the supplier of such equipment, including not only
arrangements necessary to permit the timely performance by Seller of
its responsibilities under this Agreement, (e.g., physical and remote
dial-up access for installation and services purposes), but also any
arrangements necessary for the ongoing operation of the equipment in
conjunction with the Equipment, shall be solely the responsibility of
Buyer, and failure by Buyer to timely make or maintain any necessary
arrangements shall not excuse Buyer from its obligations under this
Agreement. However, at Buyer's request and expense, Seller agrees to
assist Buyer in determining the cause of any problems,
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defects or failures associated with the Equipment and isolate and
correct any such problem, defect or failure (even if such problem,
defect or failure is caused by the equipment of another vendor) as
promptly as practicable; provided, however, that Seller shall not be
required to repair or modify any such equipment unless Seller has the
ability, necessary resources and authorization from Buyer and such
other vendor to do so. Notwithstanding the preceding, Seller makes no
warranty, and shall have no responsibility whatsoever under this
Agreement, for the proper performance of equipment not purchased
hereunder, or for any failures of equipment not purchased hereunder
resulting from improper performance of the Equipment.
21.2 Buyer further acknowledges that Seller makes no warranty or
representations that the System or individual units of Equipment will
operate in conjunction with other vendor equipment. If Buyer wishes
Seller to conduct compatibility testing between Seller's Equipment
and other equipment not purchased from Seller, Buyer and Seller shall
reach agreement on the scope of such testing and charges associated
therewith.
22. ANNEXES
The following Annexes shall form an integral part of this Agreement
as though written out in full in this Agreement:
Annex 1 - Equipment and Services Pricing
Annex 2 - Services
Annex 3 - Turnover and Acceptance Notices
Annex 4 - Seller Warranty Services
Annex 5 - Software License
Annex 6 - Documentation
Annex 7 - Adjunct Platforms
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23. GENERAL
23.1 Buyer may assign or transfer this Agreement or any rights hereunder
to any other party only with the prior written consent of Seller,
which consent shall not be unreasonably withheld or delayed. No
assignment or sublicense of or under this Agreement, or of any rights
under this Agreement, by Buyer shall relieve Buyer of primary
responsibility for performance of Buyer's obligations under this
Agreement. Seller reserves the right to refuse to honor any
assignment or sublicense which, in the opinion of its legal counsel,
would require Seller to violate any United States export restriction,
other law, or regulation. Seller reserves the right to subcontract
any portion of its obligation under this Agreement, but no such
subcontract shall relieve Seller of primary responsibility for
performance of Seller's obligations under this Agreement.
23.2 Notices and other communications shall be transmitted in writing by
Certified U.S. Mail, postage prepaid, return receipt requested,
addressed to the parties as follows:
Northern Telecom Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Director, Contracts
cc: Program Manager
Alamosa PCS LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman
cc: ▇▇▇ ▇▇▇▇▇, Chief Technical Officer
Any notice given pursuant to this Section 23.2 shall be effective
five (5) days after the day it is mailed or upon receipt as evidenced
by the U.S. Postal Service return receipt card, whichever is earlier.
23.3 This Agreement may not be modified or amended or any rights of a
party to it waived except in a writing signed by duly authorized
representatives of the parties hereto.
23.4 Failure by either party at any time to require performance by the
other party or to claim a breach of any provision of this Agreement
shall not be construed as affecting any subsequent breach or the
right to require performance with respect thereto or to claim a
breach with respect thereto.
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23.5 Each party shall be liable for direct losses incurred by the other
party due to bodily injury or damage to tangible property, including
the Hardware, which results from the negligence of that party's
employees or agents, provided, however, that nothing in this Section
shall affect or in any way increase Seller's obligation under this
Agreement with respect to the performance of the Hardware and/or
Software. Except for bodily injury, death, or damage to tangible
property, the total liability of Seller for all claims of any kind
for any loss or damage, whether in contract, warranty, tort
(including negligence), strict liability or otherwise, or claims for
indemnification arising out of, connected with, or resulting from the
performance or non-performance of this Agreement shall in no case
exceed the total Price of the Purchase Order accepted under this
Agreement giving rise to the claim.
23.6 The rights and obligations of the parties and all interpretations and
performance of this Agreement shall be governed in all respects by
the laws of the State of Texas except for its rules with respect to
the conflict of laws.
23.7 Article headings are inserted for convenience only and shall not be
used in any way to construe the terms of this Agreement.
23.8 The invalidity in whole or in part, of any provision of this
Agreement shall not affect the validity of the remainder of such
provision of this Agreement.
23.9 This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which taken together
shall constitute one and the same instrument.
23.10 Each party hereto represents and warrants that (i) it has obtained
all necessary approvals, consents and authorizations of third parties
and governmental authorities to enter into this Agreement and to
perform and carry out its obligations hereunder; (ii) the persons
executing this agreement on its behalf have express authority to do
so, and, in so doing, to bind the party thereto; (iii) the execution,
delivery, and performance of this Agreement does not violate any
provision of any bylaw, charter, regulation, or any other governing
authority of the party; and (iv) the execution, delivery and
performance of this Agreement has been duly authorized by all
necessary partnership or corporate action and this Agreement is a
valid and
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binding obligation of such party, enforceable in accordance with its
terms.
23.11 This Agreement constitutes the entire agreement between Seller and
the Buyer with respect to the subject matter hereof and supersedes
all previous negotiations, proposals, commitments, writings,
advertisements, publications and understandings of any nature
whatsoever. No agent, employee or representative of Seller has any
authority to bind Seller to any affirmation, representation, or
warranty concerning the System, except as stated in this Agreement
and unless such affirmation, representation, or warranty is
specifically included within this Agreement, it shall not be
enforceable by Buyer or any assignee or sublicensee of Buyer. Buyer
and Seller hereby acknowledge and agree that they have not relied on
any representations or warranties other than those expressly set
forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their representatives being thereunto duly authorized.
ALAMOSA PCS LLC NORTHERN TELECOM INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------
(Type/Print) (Type/Print)
Title: Chairman Title: VP and GM- Wireless Networks
------------------------------- -------------------------------
Date: Dec. 12, 1998 Date: December 21, 1998
------------------------------- -------------------------------
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