EXHIBIT 10.57
CONTRACT NUMBER: 120900-92-01
PURCHASE AGREEMENT
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
TABLE OF CONTENTS
1. TERM............................................................... 49
2. PURCHASE AND DISTRIBUTION OF PRODUCT(S)............................ 49
3. PRICE.............................................................. 50
4. TERMS OF PAYMENT................................................... 50
5. PRICE REVISIONS.................................................... 50
6. PURCHASING FORECAST................................................ 50
7. THIRD PARTY PURCHASES.............................................. 51
8. REPORTS............................................................ 51
9. BAR CODING......................................................... 51
10. PRECEDENCE OF DOCUMENTS........................................... 51
11. PURCHASE ORDER INFORMATION........................................ 51
12. DELIVERY.......................................................... 52
13. PACKAGING......................................................... 54
14. BILLING........................................................... 54
15. XXXX OF SALE...................................................... 54
16. INSPECTION AND ACCEPTANCE......................................... 54
17. PRODUCT(S) STANDARDIZATION........................................ 55
18. TECHNOLOGICAL OR SPECIFICATION CHANGE/PRODUCT(S)
DELETION/SUBSTITUTION.................................................. 56
19. UNSATISFACTORY CONDITION SITUATIONS............................... 57
20. PRODUCT(S) CHANGES................................................ 57
21. QUALITY ASSURANCE REPORTING....................................... 59
22. PRODUCT(S) SERVICES AND SUPPORT................................... 59
23. TRADEMARK LICENSE................................................. 59
24. INFRINGEMENT...................................................... 59
25. USE OF CONFIDENTIAL INFORMATION................................... 61
26. PROPRIETARY RIGHTS................................................ 61
27. PUBLICITY......................................................... 62
28. COMPLIANCE WITH LAWS.............................................. 62
29. FORCE MAJEURE..................................................... 63
30. ASSIGNMENT........................................................ 63
31. TAXES............................................................. 64
32. RECORDS........................................................... 64
33. RIGHT OF ACCESS................................................... 64
34. PLANT AND WORK RULES.............................................. 65
35. LIABILITY......................................................... 65
36. TOXIC SUBSTANCES AND HAZARDOUS PRODUCT(S)......................... 66
37. CANCELLATION 0F PURCHASE ORDERS; REVOCATION OF ACKNOWLEDGEMENTS... 66
38. TERMINATION....................................................... 67
39. NOTICES........................................................... 68
40. REGISTRATION...................................................... 70
41. NONWAIVER......................................................... 70
42. SEVERABILITY...................................................... 70
43. SECTION HEADINGS.................................................. 70
44. SURVIVAL OF OBLIGATIONS........................................... 71
45. CHOICE OF LAW..................................................... 71
46. ENTIRE AGREEMENT.................................................. 71
EXHIBIT A: GTE AFFILIATED ENTITIES.................................... 72
EXHIBIT B: SUPPLIER PRODUCT(S)......................................... 72
EXHIBIT C: SUPPLIER PRODUCT(S) PRICING................................ 72
EXHIBIT D: GTE BAR CODING............................................. 72
EXHIBIT E: GTE SHIPPING AND CARRIER ROUTING INSTRUCTIONS.............. 72
EXHIBIT F: SUPPLIER PRODUCT(S) DELIVERY INTERVAL...................... 72
EXHIBIT G: GTE PACKAGING CONFIGURATION DEFINITIONS.................... 72
EXHIBIT H: GTE STANDARDIZA'NON POLICY................................. 72
EXHIBIT I: GTE QUALITY ASSURANCE REPORTING............................ 72
EXHIBIT J: GTE PRODUCT(S) SERVICES AND SUPPORT REQUIREMENTS........... 72
EXHIBIT K: SUPPLIER'S ADDITIONAL SOFTWARE LICENSING TERMS............. 72
PURCHASE AGREEMENT
THIS AGREEMENT is made by and between Digital Sound Corporation, a State of
California Corporation with principal offices at 0000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "SELLER") and GTE
Communication Systems Corporation, a Delaware Corporation, acting by and through
the GTE Supply Division with principal offices located at GTE Place, West
Airfield Drive, XXX Xxxxxxx, Xxxxx 00000 (hereinafter referred to as
"CUSTOMER"), for the benefit of itself and the GTE Affiliated Entities
(hereinafter referred to as "Affiliates") listed in Exhibit A.
WHEREAS, the parties agree and understand that CUSTOMER and/or Affiliates may
purchase products from SELLER on the same terms and conditions as CUSTOMER
hereunder. In such event, the Affiliate shall also be a "CUSTOMER" hereunder.
It is the intent of the parties that CUSTOMER and/or Affiliates may make
purchases according to the terms and conditions hereunder.
WHEREAS, the parties hereto desire to enter into an agreement on a non-exclusive
basis to govern the purchase for use or distribution of SELLER'S product(s)
listed in Exhibit B, attached to this Agreement (hereinafter called
"PRODUCT(S)"), to CUSTOMER.
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. TERM
This Agreement shall be effective on the date of signing of this Agreement, and
shall continue in effect thereafter for a period of two (2) years unless
terminated or modified by either party in accordance with the provisions of this
Agreement. This Agreement shall be automatically terminated unless renewed by
CUSTOMER for a period not greater than one (1) year by written notice to SELLER
not less than thirty (30) days prior to the expiration date. At the end of each
twelve month period either party shall have the option to review Agreement terms
and adjust such terms as mutually agreed upon by the parties.
2. PURCHASE AND DISTRIBUTION OF PRODUCT(S)
(a) This Agreement covers the terms and conditions for the purchase and sale
of SELLER'S PRODUCT(S) listed in Exhibit B.
(b) Pursuant to the terms of this Agreement, SELLER hereby agrees to sell to
CUSTOMER, and CUSTOMER may purchase from SELLER, if it submits purchase
orders for them, (1) the PRODUCT(S) listed in Exhibit B and (2) other
goods for which SELLER accepts a purchase order hereunder at the
price as quoted to CUSTOMER in writing with respect to each such
transaction.
(c) The parties agree that CUSTOMER may purchase the PRODUCT(S) for its own
use, for resale to end users and/or for distribution to other parties.
(d) This Agreement is non-exclusive and shall not be construed (1) to require
CUSTOMER to purchase any specific amount of PRODUCT(S) from SELLER or (2)
to require CUSTOMER to sell any, all or a portion of PRODUCT(S) it
orders, or restrict the purchase, resale and/or distribution of
PRODUCT(S) to any geographic area.
3. PRICE
(a) The prices for all PRODUCT(S) to be paid by CUSTOMER are those prices
specified in Exhibit B as discounted per Exhibit C. Installation charges
listed in Exhibit B are the maximum allowable unless installation is
beyond the committed installation date and due to fault of CUSTOMER.
(b) SELLER represents that the prices for the purchase of any PRODUCT(S)
hereunder are no less favorable than those offered to other purchasers in
comparable transactions.
4. TERMS OF PAYMENT
Payment shall be due thirty (30) days from the date of receipt of goods or
receipt of SELLER'S invoice, whichever occurs later.
5. PRICE REVISIONS
(a) SELLER may propose price increases annually but only after the
anniversary date of this Agreement by giving ninety (90) days written
notice to CUSTOMER. SELLER shall honor all prices for PRODUCT(S) for
which purchase orders have been issued prior to the effective date of
such increases.
(b) Price decreases shall be effective immediately upon announcement by
SELLER and shall apply to all purchase orders which have not been
delivered prior to the announcement date.
6. PURCHASING FORECAST
CUSTOMER estimates that it may purchase from SELLER in the aggregate amount,
eleven million four hundred thousand dollars ($11,400,000) of SELLER'S
PRODUCT(S) during the first twelve (12) months of this Agreement. The purchase
forecast is only a projection or estimate and is not to be construed as a
commitment to
purchase that or any amount. In no case shall CUSTOMER be responsible for any
billback or related nonconformance charges should CUSTOMER'S purchases fail to
meet projected levels, nor shall failure to purchase the estimated amount of
SELLER'S PRODUCT(S), or any of SELLER'S PRODUCT(S), be a breach of this
Agreement by CUSTOMER.
7. THIRD PARTY PURCHASES
SELLER agrees to consider CUSTOMER's Supply Division as a possible furnisher of
goods or services which SELLER may acquire from a third party. Accordingly
CUSTOMER shall provide SELLER with a listing of goods and services which it may
be able to provide. SELLER shall, however be the sole authority for procurement
selections from third party suppliers.
8. REPORTS
When requested by CUSTOMER, SELLER shall, for purchase orders placed directly
with the SELLER by an Affiliate other than GTE Supply, provide CUSTOMER, at each
address as referenced in Section 39, a quarterly purchase report by ordering
location, listing PRODUCT(S) purchased under this Agreement, description, part
number, quantities shipped and associated net prices.
9. BAR CODING
SELLER agrees to comply with GTE standards in the development of a Bar Coding
Program as outlined in Exhibit D, as mutually agreed by both parties and based
on SELLER'S capability.
10. PRECEDENCE OF DOCUMENTS
All purchase orders shall be subject to and governed by the provisions contained
herein. Additional conditions appearing on the face or reverse side of any
CUSTOMER'S purchase order which do not conflict with the terms and conditions of
this Agreement shall be a part of this Agreement with respect to such purchase
order if accepted by SELLER'S order acknowledgment. The terms and conditions of
this written Agreement shall control over any conflicting or inconsistent terms
and conditions contained in any purchase order. Upon receipt of CUSTOMER'S
purchase order, SELLER shall acknowledge receipt, verification of information,
and required ship date. SELLER'S acknowledgment is to be forwarded to CUSTOMER
within ten (10) days of receipt of purchase order. Unless CUSTOMER specifically
agrees in a separate writing, no additional or different terms and conditions
appearing on the face or reverse side of any SELLER'S acknowledgment or invoice
shall become part of such purchase order.
11. PURCHASE ORDER INFORMATION
(a) Unless otherwise mutually agreed in writing by the parties, the following
information shall normally be contained in the purchase order:
(1) Description of PRODUCT(S), including any numerical alphabetical
identification, including SELLER'S part number, referenced in the
price list herein;
(2) Requested delivery date;
(3) Applicable price;
(4) Location to which the PRODUCT(S) is to be shipped;
(5) Location to which invoices shall be rendered for payment;
(6) CUSTOMER'S purchase order number;
(7) Configurations (if applicable);
(8) Delivery requirements;
(9) A reference to any applicable quotation given by SELLER to CUSTOMER;
and
(10) Quantity to be shipped.
(b) All purchase orders, acknowledgments and subsequent invoicing may be
communicated between CUSTOMER and SELLER by way of postal services,
facsimile transmission and electronic data interchange according to
industrial standards as developed to meet both parties' needs or as
otherwise mutually agreed to by both parties.
(c) SELLER may enforce each purchase order only against the entity which has
submitted the purchase order.
(d) Unless otherwise agreed to in writing, any written purchase order placed
by CUSTOMER for PRODUCT(S) or services specified herein shall be subject
to the terms and conditions of this Agreement.
12. DELIVERY
(a) Shipments of PRODUCT(S) shall be made FOB Origin freight collect or
prepaid and added to the invoice as may be specified on individual
purchase orders. When CUSTOMER requests SELLER to arrange the
transportation of the PRODUCT(S), SELLER shall ship all PRODUCT(S)
freight collect in accordance with the GTE Shipping and Carrier Routing
Instructions, Exhibit
E, unless otherwise specified on the CUSTOMER'S purchase order. In the
absence of shipping instructions, SELLER shall select the carrier listed
in the GTE Shipping and Carrier Routing Instructions on behalf of
CUSTOMER, but SELLER shall not assume any liability for shipment nor
shall the carrier be construed as an agent of SELLER. If SELLER is
instructed by CUSTOMER to ship prepaid & add, SELLER shall select a
carrier based on best rate as negotiated by SELLER. In such instance,
CUSTOMER shall only pay SELLER'S net transportation costs, inclusive of
all applicable discounts, allowances and refunds.
(b) Failure of SELLER to ship PRODUCT(S) in accordance with CUSTOMER'S
freight routing instructions shall result in charge-backs to the SELLER
for excess freight charges.
(c) Unless instructed otherwise by CUSTOMER, SELLER shall, for purchase
orders placed hereunder, (1) ship PRODUCT(S) in accordance with specific
shipping instructions; (2) see that all subordinate documents bear
CUSTOMER'S purchase order number; (3) enclose a packing list with each
shipment and when more than one package is shipped, identify the one
containing the packing list; (4) xxxx CUSTOMER'S purchase order number on
all packages and shipping papers; (5) render invoices showing CUSTOMER'S
purchase order number; (6) render separate invoices for each shipment or
purchase order; (7) forward shipping notices with invoices; (8) invoice
CUSTOMER by mailing or otherwise transmitting invoices, bills, and
notices to the billing address on the purchase order; and (9) make
available Xxxx of Lading upon request.
(d) Standard delivery for PRODUCT(S) shall be as specified in Exhibit F and
may be amended only by written document signed by both parties hereto.
FOB delivery times shall be from the date of receipt of CUSTOMER'S
purchase order.
(e) SELLER shall ship PRODUCT(S) to CUSTOMER within the time period stated in
Exhibit F with a minimum ninety-six percent (96%) service level. Service
level shall be calculated as total line items shipped complete, as
compared to the total number of line items ordered that have been
purchased for delivery within SELLER'S stated delivery interval. SELLER
shall provide CUSTOMER, on a quarterly basis at the addresses as
referenced in Section 39, shipping reports delineating the following
information:
(1) CUSTOMER'S purchase order number;
(2) Date CUSTOMER'S purchase order received by SELLER;
(3) Date purchase order shipped complete from SELLER;
(4) Total number of line items scheduled for shipment in the period;
(5) Total number of line items shipped complete in the period;
(6) Percent (%) of line items shipped complete in the period;
(7) Total number of units scheduled for shipment in the period;
(8) Total number of units shipped in the period; and
(9) Percentage (%) of units shipped complete in the period (fill rate).
13. PACKAGING
PRODUCT(S) shall be packaged and packed at no additional charge for shipment in
suitable containers which shall provide protection against damage during the
domestic shipment, handling and storage in reasonably dry, unheated quarters.
Refer to Exhibit G for packaging configuration definitions. Corrugated shipping
containers shall comply with requirements of Item 222 of the National Motor
Freight Code, Series NMFC 100-P. Containers of any type that are too heavy or
too large to be palletized shall be skidded to facilitate fork truck and/or
mechanized handling.
14. BILLING
SELLER shall render invoices to CUSTOMER, for each shipment made, unless
otherwise specified, at the address listed on CUSTOMER'S purchase order.
Invoices shall include, but not be limited to (1) purchase order number; (2)
purchase order line number; (3) PRODUCT(S) identification number; (4) ship to
address; (5) quantity shipped and billed; (6) net invoice amount; (7) net unit
cost; and (8) any special instructions as requested by CUSTOMER.
15. XXXX OF SALE
SELLER agrees, upon request by CUSTOMER, to execute and deliver to CUSTOMER a
xxxx of sale evidencing conveyance of PRODUCT(S), free and clear of all liens,
security interests and encumbrances, together with such other documents as may
be necessary by CUSTOMER.
16. INSPECTION AND ACCEPTANCE
(a) All PRODUCT(S) ordered pursuant to this Agreement shall be subject to
inspection by CUSTOMER after delivery to determine its conformity with
CUSTOMER'S purchase order. If the PRODUCT(S) delivered does not
conform with CUSTOMER'S purchase order, CUSTOMER shall have the right to
reject such PRODUCT(S). PRODUCT(S) which has been delivered and rejected,
in whole or in part, shall be returned to SELLER at SELLER'S risk and
expense. CUSTOMER shall have a period of thirty (30) days following
arrival of PRODUCT(S) at the delivery destination specified by CUSTOMER
within which to inspect the PRODUCT(S) for conformity with CUSTOMER'S
purchase order and SELLER'S advertised and published specifications and
to provide SELLER with written notice of any discrepancy or rejection. If
CUSTOMER does not provide SELLER with such written notice of a
discrepancy or rejection within such thirty (30) day period, the
PRODUCT(S) shall be deemed accepted by CUSTOMER, unless otherwise agreed
by the parties in writing. CUSTOMER shall notify SELLER and arrange for
the return of PRODUCT(S) as required.
(b) Inspection or failure to inspect on any occasion shall not affect
CUSTOMER'S rights under the "WARRANTY" provisions of Exhibit J herein or
any other rights or remedies available to CUSTOMER whether at law or in
equity.
17. PRODUCT(S) STANDARDIZATION
(a) During the term of this Agreement, SELLER shall comply with GTE's
PRODUCT(S) Standardization Policy as set forth in Exhibit H.
(b) Hardware/software problems identified during CUSTOMER's Standardization
Management testing of new hardware/software releases are to be corrected
in accordance with the following priority schedule:
Priority One (1) - must be corrected prior to on-line
implementation.
Priority Two (2) - must be corrected prior to commercial release.
Priority Three (3) - must be corrected in the first product update.
Priority Four (4) - possible design request or future feature
enhancement.
Priority Five (5) - monitor on-line performance or verify
commercial release documentation.
The Priority assigned to a particular hardware/software problem shall be
determined by CUSTOMER's Standardization Management.
(c) CUSTOMER reserves the right to test new releases or feature enhancements
prior to CUSTOMER's distribution. SELLER will not distribute
commercially available system version releases to CUSTOMER without
written approval from CUSTOMER. Software corrections (Patches and/or
Point releases) will be provided at no charge for ninety (90) days from
the date of written approval of the new release by CUSTOMER.
(d) SELLER will work in good faith with CUSTOMER to follow guidelines to
ensure the necessary tracking, reporting and processing of Product Design
Requests submitted by CUSTOMER.
(e) At the commencement of this Agreement, SELLER will provide a best efforts
Product enhancement/availability schedule for the next two (2) years and
update such schedule each quarter. Software (load) enhancements must be
made available, and the cost of each software (load) enhancement must not
exceed ****** (***) percent of the initial software (load) expense.
18. TECHNOLOGICAL OR SPECIFICATION CHANGE/PRODUCT(S) DELETION/SUBSTITUTION
(a) SELLER is required to give CUSTOMER notice one hundred twenty (120) days
in advance of any technological or specification change,
software/firmware revision, PRODUCT(S) deletion or manufacturer
discontinuance that shall significantly impact PRODUCT(S) operation,
interchangeability with existing PRODUCT(S), appearance, warranty, life
cycle or GTE engineering/quality approvals of any PRODUCT(S). SELLER
shall, at the time of notification, provide CUSTOMER with (1) a
PRODUCT(S) change number; (2) a description of such change; (3) reason
for change; (4) a description of the impact of such change upon (i)
reliability, (ii) PRODUCT(S) specifications, (iii) form, fit or function;
(5) proposed price impact (if any); and (6) proposed effective date for
such change and recommended implementation schedule therefore.
Notwithstanding the foregoing, if SELLER makes any change with material
impact to the PRODUCT(S) which SELLER in its reasonable discretion
decides must be released on less than one hundred twenty (120) days
notice (e.g., a bug fix or change for safety reasons), SELLER will give
CUSTOMER the foregoing notification as soon as commercially practicable.
(b) In the event that SELLER and CUSTOMER shall fail to reach agreement on
any such change in PRODUCT(S) to be made by SELLER, then, in addition to
all other rights and remedies at law or in equity or otherwise, CUSTOMER
shall, at no cost or liability, have the right to terminate this
Agreement and any and all pending purchase orders for PRODUCT(S) affected
by such change.
(c) SELLER agrees if the required one hundred twenty (120) days notice is not
provided, SELLER shall accept at CUSTOMER'S option, a PRODUCT(S) exchange
or return for all unsold PRODUCT(S) in CUSTOMER'S inventory which were
received or shipped prior to the date of such notice. Such option must
be made by CUSTOMER within one hundred twenty (120) days after SELLER'S
notification. Any PRODUCT(S) returned must be unused, undamaged and in
the original carton and may, at CUSTOMER'S option, be returned for one
hundred percent (100%) credit of the price paid or an equal dollar value
exchange for any other PRODUCT(S) offered under this Agreement.
19. UNSATISFACTORY CONDITION SITUATIONS
If at any time during normal operation the CUSTOMER encounters an unsatisfactory
condition in the PRODUCT(S), SELLER agrees to meet the following time frames for
resolving the condition:
(a) Conditions which affect public or employee safety or the ability to track
and collect revenue, or which cause major degradation of service, SELLER
shall acknowledge within ****** (**) days of notification and must
provide a permanent resolution within ****** (**) days of notification.
(b) Conditions which affect service, but have a temporary solution to reduce
the impact, or which have potential for major service degradation, SELLER
shall acknowledge within ****** (**) days of notification and must
provide a permanent resolution within ******* (**) days of notification.
(c) Conditions which are not service or safety affecting but which have
potential to adversely affect normal maintenance and/or administration of
telephone service, SELLER shall acknowledge within **** (**) days and
provide a permanent resolution within **************** (**) days of
notification.
(d) CUSTOMER and SELLER may agree to action dates other than those stated
above that shall correct unsatisfactory conditions due to upgrades,
technological changes, etc. If an exception to the above corrective
action time frames occurs, the SELLER is bound by the newly agreed upon
date.
20. PRODUCT(S) CHANGES
(a) After PRODUCT(S) has shipped to CUSTOMER, if SELLER issues changes
affecting such PRODUCT(S) and a change is identified as necessary for the
PRODUCT(S) to continue to meet SELLER'S published specifications, design
criteria or is an identified correction of deficiency as a result of an
Unsatisfactory Condition Report (refer to Section 19), SELLER shall
provide prompt notification of required changes to GTE Standardization
Management. SELLER shall, at its expense, furnish and install the parts
necessary to implement any such changes made within a ten (10) year
period from the date of shipment of PRODUCT(S) by SELLER to CUSTOMER.
Upgrades and enhancements are not covered in this subsection or in the
other subsections of this Product Changes provision.
(b) If CUSTOMER and SELLER ascertain that PRODUCT(S) or part thereof subject
to such change is readily returnable, CUSTOMER shall remove and shall
return such PRODUCT(S) or part to SELLER'S facility and SELLER, at its
expense, shall implement such changes at its facility and return such
changed PRODUCT(S) or part to CUSTOMER'S designated location. If removed
PRODUCT(S) returned to SELLER for modification creates an out-of-service
condition, SELLER shall make suitable arrangements to provide replacement
PRODUCT(S) such that no out-of-service condition shall occur.
(c) Any PRODUCT(S) maintained in CUSTOMER'S inventory subject to such change
shall be returned to SELLER'S facility to implement changes and return to
CUSTOMER'S stocking location at SELLER'S expense. If such changes create
an adverse impact on the PRODUCT(S) warranty or CUSTOMER'S ability to
sell the PRODUCT(S) as new, then SELLER shall accept at CUSTOMER'S
option, a PRODUCT(S) exchange or return for all unchanged PRODUCT(S) in
CUSTOMER'S inventory.
(d) All change notifications provided by SELLER to CUSTOMER shall contain the
following information:
(1) description of change;
(2) reason for change;
(3) impact on customer service (i.e., outages, system downtime);
(4) price impact, if known;
(5) effective date of changes; and
(6) implementation schedule of change.
(e) CUSTOMER may request SELLER to make changes to SELLER'S PRODUCT(S). Upon
receipt of a written document describing in detail the changes requested
by CUSTOMER, SELLER shall respond in writing to CUSTOMER within thirty
(30) days. If SELLER agrees to undertake such modifications for
CUSTOMER, the response shall quote a proposed implementation schedule and
a cost for such changes to PRODUCT(S).
21. QUALITY ASSURANCE REPORTING
(a) Unless specified otherwise, quality and reliability reporting
requirements shall be as defined in GTE Standardization Management's
Quality and Reliability Document, known as the TO-15 Process, as set
forth in Exhibit I. SELLER shall submit Form TQ-15 and related documents
to CUSTOMER for performance verification, as required, on a quarterly
basis. Verification may include on-site audits of documentation, process
reviews and product quality discussions.
(b) CUSTOMER has the right to rate SELLER'S performance in accordance with
CUSTOMER'S internal rating algorithm. Upon request, CUSTOMER agrees to
provide rating information to SELLER without charge.
(c) SELLER agrees to have a field reliability and delivery performance
tracking system in place as mutually agreed between CUSTOMER and SELLER
and shall continue the tracking system for as long as this Agreement is
in effect. The tracking system shall provide timely internal data
collection enabling SELLER to arrive at solutions to delivery, quality
and reliability problems related to assembly, subassembly or other
repairable module deficiencies as measured against CUSTOMER'S
requirements.
22. PRODUCT(S) SERVICES AND SUPPORT
During the term of this Agreement, SELLER shall provide PRODUCT(S) services and
support as set forth in Exhibit J.
23. TRADEMARK LICENSE
SELLER hereby grants to CUSTOMER the non-exclusive right to use SELLER'S trade
name and trademark. The SELLER'S trade name and trademark are registered in the
United States. SELLER reserves the right to prior review and approval of
CUSTOMER'S use of the SELLER'S trade name, trademark, and all relevant
advertising material and SELLER agrees not to unreasonably withhold or delay
such approval. In the event of termination of this Agreement, SELLER has the
right to withdraw this consent with respect to uses by CUSTOMER following
termination.
24. INFRINGEMENT
(a) SELLER shall defend at its own expense all third party claims,
proceedings and/or suits alleging infringement or misappropriation of any
patent, trademark, copyright, trade secret or violation of any other
intellectual property or proprietary rights by reason of the use or sale
of any PRODUCT(S) furnished to CUSTOMER under this Agreement, or the use
of any licensed PRODUCT(S) within the scope of the licenses granted under
this Agreement, and shall defend, indemnify, protect and save
CUSTOMER harmless from all claims, actions, suits, costs, expenses,
damages, including reasonable attorney's fees and payments, as a result
of such claim of infringement or misappropriation; and if the use or
resale shall be enjoined, SELLER shall, at its option, replace the
enjoined PRODUCT(S), licensed PRODUCT(S) or service with a suitable
substitute free of the infringement or misappropriation; or shall procure
for CUSTOMER'S benefit a license or other right to use or resell the
same, or shall remove the enjoined PRODUCT(S) and refund to CUSTOMER the
amount paid to SELLER therefor, plus CUSTOMER'S direct, incidental and/or
consequential damages for such infringing or misappropriated PRODUCT(S).
CUSTOMER agrees that any such recovery of consequential damages shall
have an upper limit of two hundred fifty thousand dollars ($250,000) per
claim or occurrence. SELLER shall have total control over the defense,
negotiation and settlement of each case, provided, however, that CUSTOMER
shall be permitted to participate in such defenses, negotiation, or
settlement by counsel of its own choosing and expense.
(b) CUSTOMER shall give SELLER prompt notice of any claims of such
infringement or misappropriation and of all suits and, except as
otherwise indicated herein, full opportunity and authority to assume the
sole defense thereof, where SELLER is obligated to indemnify CUSTOMER
hereunder, including appeals, and to settle such suits, and shall furnish
upon SELLER'S request and at SELLER'S expense all disclosable information
and reasonable assistance available to CUSTOMER. This Section 24 states
SELLER's entire liability and obligations with respect to claims of
infringement of proprietary rights of any kind and is CUSTOMER's sole and
exclusive remedy for any breach of Exhibit J Section 1 (a)(i) with
respect to infringement of proprietary rights.
(c) No undertaking of SELLER in this Section shall apply to any infringement
misappropriation or any claim of infringement or misappropriation which
arises solely from SELLER's adherence to CUSTOMER's written instructions
or directions or which arise solely from the use of PRODUCT(S) with
equipment, devices, or software not supplied by SELLER other than (1)
commercial merchandise which is available on the open market with which
PRODUCT(S) is designed to operate or (2) items of SELLER origin, design
or selection. Each party shall defend or settle, at its own expense, any
action or suit against the other for which ft is responsible.
25. USE OF CONFIDENTIAL INFORMATION
(a) Any specifications, drawings, sketches, models, samples, tools, computer
programs, technical information, or confidential business information or
data, written, oral or otherwise (hereinafter called "Information")
furnished by the parties to one another hereunder shall remain the
property of the supplier of
such Information. All copies of such Information in written, graphic or
other tangible form shall be returned to the supplier upon request except
for a single archival copy.
(b) If clearly marked as confidential, and unless such Information was
previously known to the recipient to be free from any obligation to keep
it confidential or until It has been or is subsequently made public by
the supplier or a third party, without breach of any obligation of
confidentiality, it shall be treated as confidential by the recipient,
and shall be used by the recipient only in connection with fulfilling the
obligations of the recipient which arise pursuant to this Agreement,
unless the prior written consent of the supplying party is obtained.
Orally disclosed confidential Information shall be reduced to writing
within twenty (20) days of disclosure and marked as confidential. Such
Information shall only be distributed to those employees who have a need
to know.
(c) Each party shall treat the other's Information in accordance with a
standard of care reasonably calculated to prevent inadvertent or
accidental disclosure. Nothing herein shall be construed as waiving the
right of any party to require the other party to execute a written
nondisclosure agreement, containing reasonable additional terms and
conditions, prior to the supplying of particular confidential Information
from time to time. Such additional terms and conditions shall not be
inconsistent, with the terms and conditions of this Agreement.
26. PROPRIETARY RIGHTS
(a) Nothing herein shall be construed as affecting SELLER's (and its
licensor') ownership, and CUSTOMER acknowledges and agrees that SELLER
(and its licensor') retains all ownership of any and all patent rights,
patent applications, rights to apply for patents, copyrights, trademarks,
trade secrets and all other proprietary rights in and to the PRODUCT(S),
including without limitation, the software portions of the PRODUCT(S) in
all formats and mediums including ROMS, EPROMS and all other firmware
devices.
(b) CUSTOMER will take all steps reasonably necessary and advisable to
preserve and protect SELLER's confidential information and proprietary
rights in connection with any proposal, bid or contract between CUSTOMER
and any part of any foreign, federal, state or local government,
including without limitation the use of appropriate confidentiality
legends and restricted rights notices in the name of SELLER on any
written material submitted by CUSTOMER in connection with any such
proposal, bid or contract.
(c) SELLER hereby licenses the "Software," as defined in Exhibit K to
CUSTOMER for use with the hardware portions of the PRODUCT(S)
pursuant to the terms and conditions of this Agreement, including the
Additional Software Terms attached as Exhibit K.
27. PUBLICITY
The parties agree to submit to one another for written approval all advertising,
sales promotion, press releases and other publicity matters relating to the
PRODUCT(S) furnished or the services performed by them pursuant to this
Agreement whereby their respective names or marks are mentioned or language from
which the connection of said names or marks therewith may be inferred or
implied, and the parties further agree not to publish or use such advertising,
sales promotions, press releases, or publicity matters without such prior
written approval. Such approval shall not be unreasonably withheld or delayed
by either party.
28. COMPLIANCE WITH LAWS
(a) The parties hereto shall comply with the provisions of all applicable
federal, state, county and local laws, ordinances, regulations and codes
(including procurement of required permits or certificates) in their
respective performance hereunder including, but not limited to the
standards promulgated by the Occupational Safety and Health Act,
Executive Order 11246, as amended, relative to Equal Employment
Opportunity, Section 503 of the Rehabilitation Act of 1973 and Section
402 of the Vietnam Veterans Readjustment Assistance Act of 1974 and all
applicable laws, orders and regulations concerning immigrants and non-
discrimination in the employment of minorities, females, veterans and the
handicapped. Irrespective of whether a specification is furnished, if
PRODUCT(S) or containers furnished are required to be constructed,
packaged, labeled or registered in a prescribed manner, the SELLER shall
comply with federal law and, in addition, with applicable state or local
law. Each party agrees to indemnify the other, and defend the other
party against, any claims, loss or damage sustained because of its
noncompliance hereunder.
(b) Without prejudice to the generality of the foregoing, CUSTOMER agrees to
comply strictly and fully with all export controls imposed on the
PRODUCT(S) by any country or organization of nations within whose
jurisdiction CUSTOMER operates or does business. CUSTOMER agrees not to
export or permit exportation of any part of the PRODUCT(S) or any related
technical data or any direct product of any related technical data,
outside of the United States without first (a) obtaining any required
written permission to do so from the United States Office of Export
Administration and other appropriate governmental agencies of the United
States; or, (b) complying fully and strictly with all requirements of any
general license exempting the exportation from the requirement for that
permission. These restrictions also apply to re-exportation from the
United States of imported items.
29. FORCE MAJEURE
(a) Neither SELLER nor CUSTOMER shall be 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 authority, acts of
God, inability to obtain raw materials or supplies of PRODUCT(S), acts or
omissions of carriers and other similar causes beyond its control
(hereinafter called "Condition(s)"). If any such Condition(s) occurs,
the party delayed or unable to perform shall promptly give notice to the
other party and, if such Condition(s) remains at the end of thirty (30)
days thereafter, the party affected by the other's delay or inability to
perform may elect to (1) terminate such purchase order or part thereof,
or (2) suspend such purchase order for the duration of the Condition(s),
and at the option of the suspending party, buy elsewhere comparable
material to be bought or sold under such purchase order, and apply to any
commitment the value of such purchase, and resume performance of such
purchase order once the Condition(s) ceases, with an option in the
affected party to extend the period of this Agreement up to the length of
time the Condition(s) endured.
(b) Unless written notice is given within thirty (30) days after the affected
party is notified of the Condition(s), (a)(2) above shall be deemed
selected.
30. ASSIGNMENT
(a) Except as otherwise provided herein, the rights and obligations of the
parties hereunder shall neither be assigned nor delegated without the
prior written consent of the other party, which shall not be unreasonably
withheld, provided that any party may assign or delegate their respective
rights and obligations hereunder, in whole or in part, to any parent or
subsidiary or affiliate of CUSTOMER or SELLER in existence at the time of
execution of this Agreement, upon prior written notice to the other.
Such assignment shall not diminish any rights or duties that SELLER or
CUSTOMER may have had prior to the effective date of assignment.
(b) The limitation on assignment does not apply to an assignment confined
solely to monies due or to become due under this Agreement, provided
CUSTOMER or SELLER is given thirty (30) days prior written notice of such
assignment. Assignment of monies shall be void to the extent that it
attempts to impose upon CUSTOMER or SELLER obligations to the assignee
additional to the payment of such monies, or to preclude CUSTOMER or
SELLER from dealing solely and directly with the other in all matters
pertaining hereto, including negotiation of amendments or settlement of
amounts due. In the event CUSTOMER or SELLER makes such an assignment it
is and shall remain responsible for payment hereunder.
31. TAXES
CUSTOMER shall be liable for and shall reimburse SELLER for payments of Federal
Manufacturers' and Retailers' Excise Taxes, state and local sales taxes and use
taxes, as applicable, with respect to transactions under this Agreement. Taxes
payable by CUSTOMER shall be separately stated in SELLER'S invoices and shall
not be included in SELLER'S prices. CUSTOMER shall not be liable for any tax
for which a valid exemption certificate acceptable to the applicable, state
taxing authorities is furnished by CUSTOMER to SELLER.
32. RECORDS
SELLER shall maintain complete and accurate records of all amounts billable to
and payments made by CUSTOMER hereunder in accordance with generally accepted
accounting practices. SELLER shall retain such records for a period of three
(3) years from the date of final shipment for PRODUCT(S) or services covered by
this Agreement. SELLER agrees to provide supporting documentation concerning
any disputed amount of invoice to CUSTOMER within thirty (30) days after
CUSTOMER provides written notification of the dispute to SELLER. SELLER shall
retain such records for three (3) years from date of invoice.
33. RIGHT OF ACCESS
SELLER and CUSTOMER shall permit reasonable access during normal working hours
to its facilities in connection with work hereunder. No charge shall be made
for such visits. It is agreed that reasonable prior notification shall be given
when access is required. CUSTOMER may inspect any material that CUSTOMER has
ordered.
34. PLANT AND WORK RULES
The respective agents and employees of the parties shall, while on premises of
the other, comply with all plant rules, regulations and reasonable company
standards for security, including (where required by Government Regulations)
submission of satisfactory clearance from U.S. Department of Defense and other
federal authorities concerned.
35. LIABILITY
(a) Notwithstanding anything to be contrary herein, SELLER shall indemnify
and save harmless CUSTOMER from any loss or damages (including reasonable
attorney's fees) incurred by CUSTOMER because of claims, suits, or
demands of any kind including personal injury or property damage to the
extent such loss or damage is caused by or results from defective
PRODUCT(S) manufactured by SELLER or the negligent acts or omissions of
SELLER or its employees or agents provided (1) CUSTOMER promptly
notifies SELLER in writing of any suits, claims, or demands against
CUSTOMER for which SELLER is responsible under this indemnity; (2)
CUSTOMER gives SELLER full opportunity and authority to assume the sole
defense of and settlement of such suits; and (3) CUSTOMER furnishes to
SELLER upon request all information and reasonable assistance available
to CUSTOMER for defense against any such suit, claim, or demand.
(b) All work performed under this Agreement by any party shall be performed
as an independent contractor and not as an agent of any other party.
Persons furnished by the respective parties shall be solely the employees
or agents of such parties, respectively, and shall be under the sole and
exclusive direction and control of such parties. They shall not be
considered employees of the other party for any purpose. Each party
shall be responsible for compliance with all laws, rules and regulations
involving their respective employees or agents, including (but not
limited to) employment of labor, hours of labor, health and safety,
working conditions and payment of wages. Each party shall also be
responsible, respectively, for payment of taxes, including federal,
state, and municipal taxes, chargeable or assessed with respect to its
employees or agents, such as social security, unemployment, worker's
compensation, disability insurance and federal and state income tax
withholding.
(c) SELLER agrees to maintain during the term hereof all insurance and/or
bonds required by law or this Agreement, including, but not limited to
(1) Worker's Compensation and related insurance as prescribed by the law
of the state in which SELLER'S services are performed; (2) employer's
liability insurance with limits of at least $500,000 for each occurrence,
and (3) comprehensive general liability insurance including PRODUCT(S)
liability, and, if the use of motor vehicles is required, comprehensive
motor vehicle liability insurance, each with limits of at least
$2,000,000 for combined single limit for bodily injury, including death
and/or property damage. SELLER shall, if requested by CUSTOMER, prior to
rendering such services, furnish certificates or adequate proof of the
foregoing insurance. Notwithstanding the above, SELLER and CUSTOMER
shall each have the option, where permitted by law, to self-insure any or
all of the foregoing risks.
(d) The parties expressly agree and understand that Seller's liability shall
in no event exceed ************* dollars ($*********) for any one
occurrence, whether the claim arises under this Agreement, in contract,
tort or otherwise.
36. TOXIC SUBSTANCES AND HAZARDOUS PRODUCT(S)
(a) SELLER warrants to CUSTOMER that each PRODUCT(S) furnished by SELLER
hereunder or in performance of purchase orders placed hereunder is safe
for normal use, is nontoxic, presents no abnormal hazards to persons or
the environment, and may be disposed of as normal refuse.
(b) All system cards shall be clearly labeled with the letters "ESD" (Electro
Static Discharge) for proper printed wire card handling.
37. CANCELLATION 0F PURCHASE ORDERS; REVOCATION OF ACKNOWLEDGEMENTS
(a) In the event that SELLER shall be in material breach or default of any of
the terms, conditions or covenants of this Agreement, including, but not
limited to, SELLER'S failure to tender delivery of the PRODUCT(S) on or
before the delivery date stated on SELLER'S acknowledgement, then, in
addition to all other rights and remedies of law or equity or otherwise,
CUSTOMER shall have the right to immediately cancel all applicable
purchase orders without any obligation or liability to SELLER for said
cancellation.
(b) In the event that CUSTOMER shall be in material breach or default of any
of the terms, conditions or covenants of this Agreement, including, but
not limited to, timely payment for PRODUCT(S) purchased and such breach
shall continue for a period of thirty (30) days after CUSTOMER'S receipt
of SELLER'S written notice thereof, then, in addition to all other rights
and remedies of law or equity or otherwise, SELLER shall have the right
to suspend delivery of PRODUCT(S) on outstanding purchase orders or
revoke existing acceptances. Default by an Affiliate shall not affect
any other Affiliate party to this Agreement.
(c) SELLER will defer or cancel shipment of items subject to purchase orders
upon CUSTOMER's written request, if that request is received by SELLER a
reasonable time prior to the scheduled shipment date. All deferments and
cancellations will be subject to certain charges as a percentage of the
discounted prices of the items to be deferred or canceled. That
percentage will depend upon the number of days prior to the scheduled
shipment date that SELLER receives a written request for deferment, or
cancellation as follows:
Percentage Percentage
Days Deferment Cancellation
Notice Charge Charge
Beyond **% of **% **%
Delivery Lead Time
Interval
**% or less of **% **%
Delivery Lead Time
Interval
If equipment canceled is sold by SELLER within ****** (**) days of
requested delivery date, then no cancellation charges will apply. If
equipment canceled is sold by SELLER but not within ****** (**) days of
requested delivery date, then a ** percent (*%) charge will apply.
CUSTOMER will have no right to defer shipment of any item developed,
made or modified to CUSTOMER's special order. Any request for deferment
of any item for more than ***** (**) days, and the third (3rd) request
for any deferment of shipment of any item, will be treated as a
cancellation of the deferred shipment and a new order.
38. TERMINATION
(a) CUSTOMER may terminate this Agreement without cause, effective
immediately, upon written notice to the other party.
(b) Upon termination of this Agreement, without cause pursuant to this
Section, CUSTOMER shall not be liable to SELLER, either for compensation
or for damages of any kind or character whatsoever, whether on account of
the loss by SELLER of present or prospective profits on sales or
anticipated sales, or expenditures, investments or commitments made in
connection therewith or in connection with the establishment, development
or maintenance of SELLER'S business, or on account of any other cause or
thing whatsoever, provided that termination shall not prejudice or
otherwise affect the rights or liabilities of SELLER with respect to
PRODUCT(S) theretofore ordered hereunder, or any indebtedness then owing
by either party to the other.
(c) Either party may terminate this Agreement, effective immediately, without
liability for said termination, upon written notice to the other party,
if any of the following events occur:
(1) The other files a voluntary petition in bankruptcy;
(2) The other is adjudged bankrupt;
(3) A court assumes jurisdiction of the assets of the other under a
federal reorganization act;
(4) A trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other;
(5) The other becomes insolvent of suspends its business;
(6) The other makes an assignment of its assets for the benefit of its
creditors except as required in the ordinary course of business; or
(7) The identity of the other's business is materially changed by sale
of its business, transfer of control of its outstanding stock,
merger or otherwise.
(d) Either party may immediately terminate this Agreement for a material
breach or default of any of the terms, conditions or covenants of this
Agreement by the other, provided that such termination may be made only
following the expiration of a thirty (30) day period during which the
other party has failed to cure such breach after having been given
written notice of such breach. This paragraph shall not apply to
CUSTOMER'S cancellations or SELLER'S revocations under Section 37.
39. NOTICES
Any notice or demand given under the terms of this Agreement or pursuant to
statute shall be in writing and shall be given or made by telegram, telecopy or
similar communication or by certified or registered mail return receipt
requested, proper postage paid and addressed to the respective parties as
follows:
To CUSTOMER:
GTE Supply
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Director - Central Procurement (HQW02B28)
and
GTE Service Corporation
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Director - CPS Standardization (HQW01N60)
and
GTE Supply
GTE Place, West Airfield Drive
XXX Xxxxxxx, Xxxxx 00000
Attention: Director - Materials Management/Purchasing (D03B58)
and
GTE Service Corporation
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Director - Consumer Network Services (HQE02B60)
To SELLER:
Digital Sound Corporation
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Vice President, Sales
Such notice or demand shall be deemed to have been given or made when received
or seventy-two (72) hours after being sent whichever occurs first, or upon
electronic confirmation of receipt, if sent by telegraph or telecopy. The above
may be changed at any time by giving thirty (30) days prior written notice as
above provided.
40. REGISTRATION
PRODUCT(S) furnished hereunder shall comply, to the extent applicable, with the
requirements of the Federal Communications Commission's Rules and Regulations,
as may be amended, including those sections concerning the labeling of such
PRODUCT(S) and the suppression of radiation to specified levels. If the
PRODUCT(S) generates interference harmful to radio communications, and such
PRODUCT(S) was installed in accordance with such Rules and Regulations, then
SELLER shall provide to CUSTOMER methods for suppressing the interference. If
the interference cannot be reasonably suppressed, SELLER shall, at CUSTOMER'S
option, accept return of the PRODUCT(S), refund to CUSTOMER the price paid for
the PRODUCT(S) and bear all expenses for removal and shipment of such
PRODUCT(S). Nothing herein shall be deemed to diminish or otherwise limit
SELLER'S obligations under respective "WARRANTY" provisions herein.
41. NONWAIVER
Either party's failure to enforce any of the provisions of this Agreement and/or
any purchase order or to exercise any option hereunder shall in no way be
construed as a waiver of such provisions, rights, or options or in any way be
deemed to affect the validity of this Agreement or any purchase order.
42. SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render unenforceable
the entire Agreement, but rather the entire Agreement shall be construed as if
not containing the particular invalid or unenforceable provision or provisions,
and the rights and obligations of SELLER and CUSTOMER shall be construed and
enforced accordingly.
43. SECTION HEADINGS
The headings of the sections herein are inserted for convenience only and are
not intended to affect the meaning or interpretation of this Agreement.
44. SURVIVAL OF OBLIGATIONS
The respective obligations of SELLER and CUSTOMER under this Agreement which by
their nature would continue beyond the termination, cancellation or expiration
hereof, shall survive termination, cancellation or expiration hereof.
45. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be
governed by and construed in accordance with the domestic laws of the state of
Texas.
46. ENTIRE AGREEMENT
This Agreement and the exhibits hereto constitute the entire agreement between
SELLER and CUSTOMER. No modifications shall be made to this Agreement unless in
writing and signed by appropriate representatives of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through
their authorized corporate representatives.
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ Xxxxx Xxxxxx /s/ X. X. Xxxxxx
------------------- -------------------
Xxxxx Xxxxxx X. X. Xxxxxx
Vice President, Sales President
Dated: December 21, 1992 Dated: January 13, 1993
Approved as to form and legality
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Attorney, GTE Telephone Operations
Dated: December 15, 1992
EXHIBIT A: Revised List of GTE Affiliated Entities that are entitled to purchase
under the Purchase Agreement.
EXHIBIT B: DGSD Domestic Version Price/Product List
EXHIBIT C: DGSD Product Pricing Discount for GTE
EXHIBIT D: GTE Bar Coding
EXHIBIT E: GTE Shipping and Carrier Routing Instructions
EXHIBIT F: DGSD Product(S) Delivery Interval
EXHIBIT G: GTE Packaging Configuration Definitions
EXHIBIT H: GTE Standardization Policy
EXHIBIT I: GTE Quality Assurance Reporting
EXHIBIT J: GTE Product(S) Services And Support Requirements
Exhibit J ATTACHMENT A: DGSD Product(S) Warranty
Exhibit J ATTACHMENT B: DGSD Product Repair Rates
Exhibit J ATTACHMENT C: DGSD Repair Parts Pricing
Exhibit J ATTACHMENT D: DGSD Working Hour Schedule & Contact Information &
Escalation Matrix
Exhibit J ATTACHMENT E: DGSD Training Rates
Exhibit J ATTACHMENT F: GTE Training Standards
EXHIBIT K: DGSD'S Additional Software Licensing Terms
AMENDMENT NO. 1
TO
PURCHASE AGREEMENT NO. 120900-92-01
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
This Amendment No. 1 to the Purchase Agreement - No. 120900-92-01 (the
"Agreement"), by and between GTE Communication Systems Corporation ("CUSTOMER")
for the benefit of itself and the GTE Affiliated Entities (as defined in the
Agreement) and Digital Sound Corporation ("SELLER"), shall be effective as of
September 30, 1993.
WHEREAS CUSTOMER and SELLER desire to amend Exhibit A to the Agreement, GTE
Affiliated Entities; and
WHEREAS CUSTOMER and SELLER desire to amend Exhibit J, Section 6, Product(s)
Maintenance; and
WHEREAS CUSTOMER and SELLER desire to amend Exhibit J, Attachment E,
Comprehensive Hardware and Software Maintenance For Non-Warranty Products; and
WHEREAS CUSTOMER and SELLER desire to amend Agreement to include Section 47,
DISPUTE RESOLUTION.
NOW, THEREFORE, the parties agree that the Agreement is hereby amended as
follows:
1. Exhibit A to the Agreement, GTE Affiliated Entities, is hereby deleted in
its entirety and replaced with a new Exhibit A, GTE Affiliated Entities,
attached hereto.
2. In Exhibit J, Section 6 to the Agreement, Product(s) Maintenance, the
words "shall be in accordance with the terms and conditions as set forth
in Attachment E" shall be replaced with "pursuant to issuance of
CUSTOMER'S purchase order shall be in accordance with the terms and
conditions as set forth in Attachment E for services provided for 1993.
Services provided by SELLER to CUSTOMER beginning January 1, 1994,
pursuant to issuance of CUSTOMER'S purchase order, shall be mutually
agreed upon by year end 1993."
3. Exhibit J, Attachment E to the Agreement, Comprehensive Hardware and
Software Maintenance For Non-Warranty Products is hereby deleted and
replaced in its entirety with a new Attachment E, Comprehensive Hardware
and Software Maintenance For Non-Warranty Products, attached-hereto.
4. The Agreement shall be amended to include Section 47, Dispute Resolution,
as follows:
47. DISPUTE RESOLUTION
(a) The parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a
temporary restraining order or injunction related to the purposes of
this Agreement, or suit to compel compliance with this dispute
resolution process, the parties agree to use the following
alternative dispute resolution procedure as their sole remedy with
respect to any controversy or claim arising out of or relating to
this Agreement or its breach.
(b) At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and negotiate in
good faith to resolve any dispute arising under this Agreement. The
parties intend that these negotiations be conducted by non-lawyer,
business representatives. The discussions shall be left to the
discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute resolution
procedures such as mediation to assist in the negotiations.
Discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as confidential
information developed for purposes of settlement, exempt from
discovery and production, which shall not be admissible in the
arbitration described below or in any lawsuit without the
concurrence of all parties. Documents identified in or provided
with such communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible,
be admitted in evidence in the arbitration or lawsuit.
(c) If the negotiations do not resolve the dispute within sixty (60)
days of the initial written request, the dispute shall be submitted
to binding arbitration by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration
Association. A party may demand such arbitration in accordance with
the procedures set out in those rules. Discovery shall be
controlled by the arbitrator and shall be permitted to the extent
set out in this Section. Each party may submit in writing to a
party, and that party shall so respond, to a maximum of any
combination of thirty-five (35) (none of which
may have subparts) of the following: interrogatories, demands to
produce documents and requests for admission. Each party is also
entitled to take the oral deposition of one (1) individual of
another party. Additional discovery may be permitted upon mutual
agreement of the parties. The arbitration hearing shall be commenced
within sixty (60) days of the demand for arbitration and the
arbitration shall be held in Dallas, Texas. The arbitrator shall
control the scheduling so as to process the matter expeditiously.
The parties may submit written briefs. The arbitrator shall rule on
the dispute by issuing a written opinion within thirty (30) days
after the close of hearings. The times specified in this Section may
be extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgement, upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
(d) Each party shall bear its own cost of these procedures. A party
seeking discovery shall reimburse the responding party the cost of
production of documents (to include search time and reproduction
time costs). The parties shall equally share the fees of the
arbitration and the arbitrator.
5. All other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the
Agreement to be executed by their duly authorized representatives.
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ E. Hovanek /s/ Xxxxx X. Xxxxx
---------------- --------------------
E. Hovanek Xxxxx X. Xxxxx
Vice President, Finance Vice President - General Manager
Dated: October 27, 1993 Dated: October 8, 1993
APPROVED AS TO FORM AND LEGALITY
/s/ (illegible)
------------------
Attorney GTE Telephone Operations 10/6/93
ATTACHMENTS TO AMENDMENT NO. 1
EXHIBIT A: Revised List of GTE Affiliated Entities that are entitled to purchase
under the Purchase Agreement.
Exhibit J ATTACHMENT E: Terms for Comprehensive Hardware And Software
Maintenance For Non-Warranty Products
January 7, 1993
GTE Communication Systems Corporation
GTE Supply Division
GTE Place
West Airfield Drive
XXX Xxxxxxx, XX 00000
RE: Amendment 2 [Software Escrow Deposit] to Purchase Agreement
Gentlemen:
GTE Communication Systems Corporation ("GTE") and Digital Sound Corporation
("DGSD") are parties to Purchase Agreement No. 120900-92-01 executed on January
13, 1993 ("the Agreement"). The parties wish to amend the subject Agreement to
provide for a software escrow deposit for the benefit of GTE. In furtherance of
this premise, GTE agrees to execute the Licensee of Record Acceptance document
attached hereto and incorporated herein by this reference. Upon execution by
GTE, GTE will become a Licensee of Record on DGSD's Escrow No. 490-9 at Brambles
NSD, Inc. located in Xxx Xxxx, XX 00000.
This document and its attachments shall become Amendment 2 to the Agreement. In
all other respects the Agreement is ratified and confirmed and shall continue in
full force and effect according to its terms and conditions.
Very truly yours,
AGREED AND ACCEPTED
/s/ Xxxxx Xxxxxxxx for GTE COMMUNICATION SYSTEMS
---------------------
Xxxxx Xxxxxxxx
Director, VIS Sales
by: /s/ Xxxxxxxx Xxxxxx
-----------------------
Xxxxxxxx Xxxxxx
Approved as to Form
/s/ Xxx X. Xxxxx
------------------
Law Dept. 2/1/94
ATTACHMENTS TO AMENDMENT NO. 2
Licensee Of Record Acceptance Relating To Software Deposit Agreement
Software Deposit Agreement Between Digital Sound Corporation And National Safe
Depository
National Safe Depository Inventory List InfoMail And Univox Source Q3 1993
AMENDMENT NO. 3
TO
PURCHASE AGREEMENT NO. 120900-92-01
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
This Amendment No. 3 to the Purchase Agreement No. 120900-92-01 (the
"Agreement"), by and between GTE Communication Systems Corporation ("CUSTOMER")
for the benefit of itself and the GTE Affiliated Entities (as defined in the
Agreement) and Digital Sound Corporation ("SELLER"), shall be effective as of
January 1, 1994.
WHEREAS CUSTOMER and SELLER desire to amend Exhibit J, Attachment E, to include
Attachment E-1 to the Agreement, Comprehensive Hardware and Software Maintenance
for Non-Warranty PRODUCT(S).
NOW, THEREFORE, the parties agree that the Agreement is hereby amended as
follows:
1. Exhibit J, Attachment E, to the Agreement, is hereby amended to include
Attachment E-1 that is attached hereto and incorporated herein by this
reference.
2. All other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to the
Agreement to be executed by their duly authorized representatives.
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ Xxx Xxx /s/ Xxxxx X. Xxxxx
------------------------- -------------------------------
Xxx Xxx Xxxxx X. Xxxxx
Vice President, Chief Quality Vice President - General Manager
and Operations Officer
Dated: March 31, 1994 Dated: April 8, 1994
APPROVED AS TO FORM
/s/ Xxx X. Xxxxx
----------------
Law Dept. 3/25/94
ATTACHMENT TO AMENDMENT XX. 0
Xxxxxxx X XXXXXXXXXX X-0: Comprehensive Hardware And Software Maintenance For
Non-Warranty Products
AMENDMENT NO. 4
TO
PURCHASE AGREEMENT NO. 120900-92-01
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
This Amendment No. 4 to Purchase Agreement No. 120900-92-01 (the "Agreement"),
by and between GTE Communication Systems Corporation ("CUSTOMER") for the
benefit of itself and the GTE Affiliated Entities (as defined in the Agreement)
and Digital Sound Corporation ("SELLER"), shall be effective as of June 15,
1994.
WHEREAS CUSTOMER and SELLER desire to set out certain terms and conditions
applicable to purchases by CUSTOMER of SELLER'S PRODUCT(S) for VoiceServer
Systems with fax capability during 1994 and 1995.
NOW, THEREFORE, the parties agree that the Agreement is hereby amended as
follows:
1. EXHIBIT B is hereby amended to include EXHIBIT B-1 ("VOICESERVER SYSTEMS
WITH FAX CAPABILITIES PRODUCTS & PRICING") which is attached hereto and
incorporated herein by this reference.
2. The following paragraph (d) is hereby added to Section 21, QUALITY
ASSURANCE REPORTING as follows:
(d) SELLER agrees to utilize its Quality First TQM Program to provide
for continuous improvement in quality levels of PRODUCT(S). The
parties agree to jointly develop a process for the ongoing
monitoring of PRODUCT reliability, system availability, and progress
reporting.
3. In Section 35, LIABILITY, paragraph (c) is hereby deleted in its entirety
and replaced with the following:
(c) SELLER agrees to maintain during the term hereof all insurance
and/or bonds required by law or this Agreement, including, but not
limited to (i) Workers' Compensation and related insurance as
prescribed by the law of the state in which SELLER'S services are
performed; (ii) employer's liability insurance with limits of at
least five hundred thousand dollars ($500,000) for each occurrence,
and (iii) comprehensive general liability insurance including
products liability, and, if the use of motor vehicles is required,
comprehensive motor vehicle
liability insurance, each with limits of at least two million
dollars ($2,000,000) for combined single limit for bodily injury,
including death, and/or property damage. SELLER shall cause CUSTOMER
to be included as an Additional Insured under said policies (as "GTE
Corporation and its affiliates and subsidiaries") and CUSTOMER'S
coverage under such policies shall be primary. SELLER shall, prior
to rendering such services, furnish certificates or evidence of the
foregoing insurance indicating the amount and nature of such
coverage, the expiration date of each policy, and stating that no
material change which affects CUSTOMER'S coverage and rights to
collect under any such policy or cancellation of any such policy
shall be effective unless thirty (30) days' prior written notice is
given to CUSTOMER. Notwithstanding the above, SELLER and CUSTOMER
shall each have the option, when permitted by law, to self-insure
any or all of the foregoing risks. CUSTOMER shall provide SELLER
with written notification prior to the filing of any claim against
any such policy.
4. The following paragraph (o) is hereby added to Section 11, TRAINING of
EXHIBIT J, GTE PRODUCT(S) SERVICES AND SUPPORT REQUIREMENTS:
(o) For each VoiceServer System with fax capabilities purchased by
CUSTOMER in 1994 and 1995, SELLER shall provide, at no cost to
CUSTOMER, ****** training slots in a Fax Administration training
class. CUSTOMER employees attending these training sessions must
have previously completed either SELLER'S InfoMail Software
Administration training class or SELLER'S Installation and
Maintenance training classes, costs of which shall be in accordance
with paragraph (f) above. If, at the request of CUSTOMER, such Fax
Administration training class(es) are conducted at a location other
than SELLER'S principal place of business, CUSTOMER shall be
responsible for payment to SELLER for instructor's reasonable travel
and living expenses. In no event shall CUSTOMER be responsible for
such expenses which exceed what CUSTOMER would reasonably reimburse
its own employees for such travel and living taken at the request
and behalf of CUSTOMER.
5. The following subparagraph (1) is hereby added to paragraph (a) of
Section 1, WARRANTY of EXHIBIT J, GTE PRODUCT(S) SERVICES AND SUPPORT
REQUIREMENTS:
(1) Notwithstanding the provisions of Paragraph (a) above, the warranty
period for all VoiceServer Systems with fax capability purchased
hereunder in 1994 shall be the longer of one (1) year from the date
the PRODUCT(S) are placed in service, such date not to be later than
ninety (90) days after delivery to CUSTOMER, or through December 31,
1995, whichever date occurs later. All other terms and conditions
of this Section 1, WARRANTY shall apply to all VoiceServer Systems
with fax capabilities for the duration of this warranty period. The
warranty period for VoiceServer Systems with fax capabilities
purchased by CUSTOMER in 1995 shall be as described in Paragraph (a)
above.
6. All other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to the
Agreement to be executed by their duly authorized representatives.
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxx
-------------------------- -------------------------------
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxx
Vice President, Sales Vice President - General Manager
Dated: October 21, 1994 Dated: October 10, 1994
APPROVED AS TO FORM
/s/ Xxx X. Xxxxx
------------------
Law Dept. 10/04/94
ATTACHMENT TO AMENDMENT NO. 4
EXHIBIT B-1
Product Description & Pricing Information for VoiceServer Systems With Fax
Capabilities
AMENDMENT NO. 5
TO
PURCHASE AGREEMENT NO. 120900-92-01
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
This Amendment No. 5 to Purchase Agreement No. 120900-92-01 (the "Agreement"),
by and between GTE Communication Systems Corporation ("CUSTOMER") for the
benefit of itself and the GTE Affiliated Entities (as defined in the Agreement)
and Digital Sound Corporation ("SELLER"), shall be effective as of December 31,
1994.
WHEREAS, the Agreement bears a termination date of January 12, 1995; and
WHEREAS CUSTOMER and SELLER desire to extend the term of the Agreement.
NOW, THEREFORE, the parties agree that the Agreement is further amended as
follows:
1. Xxxxxxx 0, XXXX is hereby amended to extend the term of the Agreement
until February 28, 1995.
2. All other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 to the
Agreement to be executed by their duly authorized representatives.
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ Xxxx X. Xxxx /s/ signed on behalf of X. X. Xxxxxxx
------------------ ---------------------------------------
Xxxx X. Xxxx X. X. Xxxxxxx
President and CEO Director - Contract Management
Dated: December 31, 1994 Dated: 12/27/94
APPROVED AS TO FORM
/s/ Xxx X. Xxxxx
------------------
Law Dept. 12/19/94
AMENDMENT NO. 6
TO
CONTRACT NUMBER 120900-92-01
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
This Amendment No. 6 to Contract Number 120900-92-01 (the "Agreement"), by and
between GTE Communication Systems Corporation ("CUSTOMER") for the benefit of
itself and the GTE Affiliated Entities (as defined in the Agreement) and Digital
Sound Corporation ("SELLER"), shall be effective as of January 1, 1995.
WHEREAS, the Agreement bears a termination date of January 12, 1995; and
WHEREAS, Amendment No. 5 to the Agreement extended the termination date to
February 28, 1995; and
WHEREAS CUSTOMER and SELLER desire to extend the term of the Agreement; and
WHEREAS CUSTOMER and SELLER desire to amend Exhibit A, GTE Affiliated Entities,
Exhibit B, Supplier Product(s), Exhibit C, Supplier Product(s) Pricing, Exhibit
E, GTE Shipping and Carrier Routing Instructions, EXHIBIT H, GTE Standardization
Policy, and certain attachments to EXHIBIT J, GTE Product(s) Services and
Support Requirements; and
WHEREAS CUSTOMER and SELLER desire to make other modifications to the terms and
conditions of the Agreement.
NOW, THEREFORE, the parties agree that the Agreement is hereby amended as
follows:
1. In Section 1, TERM, the first sentence is hereby deleted in its entirety
and replaced with the following:
This Agreement shall be effective on the date of signing of this
Agreement, and shall continue in effect through December 31, 1996 unless
terminated or modified by either party in accordance with the provisions
of this Agreement.
2. In Section 13, PACKAGING, the third sentence is hereby deleted in its
entirety and replaced with the following:
Corrugated shipping containers shall comply with the requirements of Item
222 of the National Motor Freight Code, Series NMFC 100-S, which may be
amended from time to time.
3. Section 18, TECHNOLOGICAL OR SPECIFICATION CHANGE/PRODUCT(S)
DELETION/SUBSTITUTION, of the Agreement is hereby deleted in its
entirety.
4. Section 19, UNSATISFACTORY CONDITION SITUATIONS, of the Agreement is
hereby deleted in its entirety.
5. Section 20, PRODUCT(S) CHANGES, of the Agreement is hereby deleted in its
entirety.
6. Section 21, QUALITY ASSURANCE REPORTING, of the Agreement is hereby
deleted in its entirety.
7. The following paragraph (c) is hereby added to Section 30, ASSIGNMENT:
(c) If CUSTOMER sells, exchanges or otherwise disposes of all or a
portion of the assets of, or CUSTOMER's interest in, any business
unit in which PRODUCT are used, then CUSTOMER shall have the right,
upon written notice to SELLER, to assign to such third party all
licenses and rights granted under this Agreement with respect to
such PRODUCT; provided that the third party agrees to be bound by
all obligations of CUSTOMER to SELLER that pertain to the PRODUCT.
8. In Section 39, NOTICES, the address for the Director-Materials
Management/Purchasing is hereby amended as follows:
GTE Supply
0000 Xxxx Xxxxx Xxxxx
XX Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Attention: Director - Materials Management/Purchasing (HQA02JO2)
9. EXHIBIT A to the Agreement, "GTE AFFILIATED ENTITIES" is hereby amended
to substitute the GTE Affiliated Entities listed on the attached Exhibit
A(1).
10. EXHIBIT B to the Agreement, "SUPPLIER PRODUCT(S)", and EXHIBIT B-1 to the
Agreement, "VOICESERVER SYSTEMS WITH FAX CAPABILITIES PRODUCT(S) &
PRICING" as amended in Amendment No.
4 to the Agreement, is hereby amended to substitute the Supplier
Product(s) listed on the attached Exhibit B(1).
11. EXHIBIT C to the Agreement, "SUPPLIER PRODUCT(S) PRICING" is hereby
amended to substitute the Supplier Product(s) Pricing listed on the
attached Exhibit C(1).
12. EXHIBIT E to the Agreement, "GTE SHIPPING AND CARRIER ROUTING
INSTRUCTIONS" is hereby amended to substitute the GTE Shipping and
Carrier Routing Instruction (May 1994) listed on the attached Exhibit
E(1).
13. EXHIBIT G to the Agreement, "GTE PACKAGING CONFIGURATION DEFINITIONS" is
hereby amended to substitute the GTE Packaging Configuration Definitions
listed on the attached Exhibit G(1).
14. EXHIBIT H to the Agreement, "GTE STANDARDIZATION POLICY" is hereby
amended to substitute the Standardization Policies, Procedures and Terms
listed on the attached Exhibit H(1).
15. Section 6, PRODUCT(S) MAINTENANCE of Exhibit J, GTE PRODUCT(S) SERVICES
AND SUPPORT REQUIREMENTS, as amended in Amendment No. 1 to the Agreement,
is deleted in its entirety and replaced with the following:
Hardware and software maintenance for each year of this Agreement
pursuant to issuance of CUSTOMER's purchase orders shall be in accordance
with the terms and conditions set forth in Attachment E, which may be
changed each year as mutually agreed to by the parties.
16. ATTACHMENT C, "SUPPLIER REPAIR PARTS PRICING" of EXHIBIT J, GTE
PRODUCT(S) SERVICES AND SUPPORT REQUIREMENTS, is hereby amended to
substitute the Supplier Repair Parts Pricing listed in the attached
Attachment C(1).
17. ATTACHMENT D, "SELLER WORKING HOUR SCHEDULE AND CONTACT INFORMATION" of
EXHIBIT J, GTE PRODUCT(S) SERVICES AND SUPPORT REQUIREMENTS, is hereby
amended to substitute the Seller Working Hour Schedule and Contact
Information & Escalation Matrix listed in the attached Attachment D(1).
18. ATTACHMENT E(1), "COMPREHENSIVE HARDWARE AND SOFTWARE MAINTENANCE FOR
NON-WARRANTY PRODUCTS" of EXHIBIT J, GTE PRODUCT(S) SERVICES AND SUPPORT
REQUIREMENTS, is hereby amended to substitute the Hardware and Software
Maintenance listed in the attached Attachment E(1).
19. ATTACHMENT G, "SELLER TRAINING RATES" of EXHIBIT J, GTE PRODUCT(S)
SERVICES AND SUPPORT REQUIREMENTS, is hereby amended to substitute the
Supplier Training Rates listed in the attached Attachment G(1).
20. All other terms and conditions of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the
Agreement to be executed by their duly authorized representatives.
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxx
----------------------- --------------------
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxx
Vice President, Sales Vice President-General Manager
Dated: March 9, 1995 Dated: March 6, 1995
APPROVED AS TO FORM
/s/ Xxx X. Xxxxx
------------------
Law Dept. 03/01/95
Attachments To Amendment No. 6
Exhibit A(1): Revised List Of GTE Affiliated Entities That Are Entitled To
Purchase Under The Purchase Agreement.
Exhibit B(1): DGSD Domestic Version Price/Product List
Exhibit C(1): DGSD Product Pricing Discount For GTE
Exhibit E(1): GTE Packaging, Shipping And Carrier Routing Instruction
Exhibit E(1) Attachment A: Detail Of 42 X 42 Inch Pallet To Be Used In Shipping
Exhibit E(1) Attachment B: GTE Area Routing Instructions And Carrier Contacts
Exhibit E(1) Attachment C: Carrier Routing Instruction For GTE Supply/GTE
Telephone Operations
Exhibit G(1): GTE Packaging Configuration Definitions
Exhibit H(1): GTE Standardization Policies, Procedures And Terms
Exhibit J Attachment C(1): DGSD Repair And Exchange Pricing For GTE
Exhibit J Attachment D(1): DGSD Contact Information And Escalation Matrix In The
Event Of Product Degradation
Exhibit J Attachment E(1): Hardware And Software Maintenance Terms
Exhibit J Attachment G(1): DGSD Training Rates For GTE And Process Description
For Training Courses Available
AMENDMENT NUMBER 7
TO
PRODUCT PURCHASE AGREEMENT NUMBER 120900-92-01
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
1. PARTIES
This Amendment Number 7 to Product Purchase Agreement Number 120900-92-01
(Agreement) between Digital Sound Corporation, a California corporation, with
offices at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000 (SELLER) and
GTE Communication Systems Corporation, a Delaware corporation, acting through
its GTE Supply Division on behalf of itself and its Affiliates, with offices at
000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 (CUSTOMER).
2. EFFECTIVE DATE
This Amendment Number 7 shall be effective January 1, 1996.
3. CHANGES TO TERMS
(a) Exhibit A(1), GTE AFFILIATED ENTITIES, as amended in Amendment Number 6
dated January 1, 1995, is deleted in its entirety and replaced with a new
Exhibit A(2), GTE AFFILIATED ENTITIES, included as Attachment I to this
Amendment.
(b) Exhibit B(1), SUPPLIER PRODUCT(S), as amended in Amendment Number 6, is
deleted in its entirety and replaced with a new Exhibit B(2), SUPPLIER
PRODUCT(S), included as Attachment II to this Amendment.
(c) The first sentence of subsection 3(b) of Exhibit J, GTE PRODUCT(S)
SERVICES AND SUPPORT REQUIREMENTS, is deleted in its entirety and
replaced with the following:
"SELLER agrees to sell to CUSTOMER the replacement parts or proprietary
components for said repairs at prices as set forth in the column
identified as "LIST PRICE" of Attachment C(2), SUPPLIER REPAIR PARTS
PRICING."
(d) Subsection 5(a) of Exhibit J, GTE PRODUCT(S) SERVICES AND SUPPORT
REQUIREMENTS, is deleted in its entirety and replaced with the following:
"(a) SELLER agrees, in the event of a failure that causes a customer
service impairment caused by PRODUCT(S)
furnished under this Agreement, to ship replacement parts at the
most expedient means available within twenty four (24) hours of
verbal notification by CUSTOMER. There shall be no charge for the
expedited service.
(1) If the defective part is under warranty, there shall be no
charge for the replacement part, providing, however, that
CUSTOMER returns such defective part within sixty (60) days
after SELLER's shipment of the replacement part. If SELLER has
not received such defective part within such sixty (60) day
period, SELLER may invoice CUSTOMER for such replacement part at
the price as set forth in the column identified as "LIST PRICE"
of Attachment C(2), SUPPLIER REPAIR PARTS PRICING."
(2) If the defective part is not under warranty, SELLER shall
invoice CUSTOMER for such replacement part at the price as set
forth in the column identified as "30 DAYS R/E PRICE" of
Attachment C(2) of this Exhibit J. If CUSTOMER does not return
such defective part to SELLER within sixty (60) days after
SELLER's shipment of the replacement part, SELLER may invoice
CUSTOMER for the difference between the "30 DAYS R/E PRICE" and
the "LIST PRICE" for such replacement part as set forth in
Attachment C(2)."
(e) Attachment C(1), SUPPLIER REPAIR PARTS PRICING, of Exhibit J, GTE
PRODUCT(S) SERVICES AND SUPPORT REQUIREMENTS, as amended in Amendment
Number 6, is deleted in its entirety and replaced with a new Attachment
C(2), SUPPLIER REPAIR PARTS PRICING, included as Attachment III to this
Amendment.
(f) Attachment E(1), HARDWARE AND SOFTWARE MAINTENANCE, of Exhibit J, GTE
PRODUCT(S) SERVICES AND SUPPORT REQUIREMENTS, as amended in Amendment
Number 6, is deleted in its entirety and replaced with a new Attachment
E(2), HARDWARE AND SOFTWARE MAINTENANCE, included as Attachment IV to
this Amendment.
4. ALL OTHER TERMS
All other terms and conditions of the Agreement shall remain in full force and
effect.
Each party represents that it has executed this Agreement through its authorized
corporate representative:
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxxxxx
----------------------- ------------------------
Xxxxx X. Xxxxxxxx Xxxx X. Xxxxxxxxxx
Vice President, Sales Contract Manager
Dated: January 18, 1996 Dated: January 16, 1996
APPROVED AS TO FORM
/s/ Xxx X. Xxxxx
------------------
Law Dept. 01/15/96
ATTACHMENTS to AMENDMENT NO. 7
EXHIBIT A(2): Revised List of GTE Affiliated Entities that are entitled to
purchase under the Purchase Agreement.
EXHIBIT B(2): DGSD Domestic Version Price/Product List
Exhibit J ATTACHMENT C(2): DGSD'S Repair And Exchange Pricing For GTE
Exhibit J ATTACHMENT E(2): Terms for Comprehensive Hardware And Software
Maintenance For Non-Warranty Products
AMENDMENT NUMBER 8
TO
PRODUCT PURCHASE AGREEMENT NUMBER 120900-92-01
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
1. PARTIES
This Amendment Number 8 to Product Purchase Agreement Number 120900-92-01
(Agreement) between Digital Sound Corporation, a California corporation, with
offices at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000 (SELLER) and
GTE Communication Systems Corporation, a Delaware corporation, acting through
its GTE Supply Division on behalf of itself and its Affiliates, with offices at
000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 (CUSTOMER).
2. EFFECTIVE DATE
This Amendment Number 8 shall be effective January 1, 1997.
3. CHANGES TO TERMS
(a) Section 1, TERM, is amended as follows
The words . . . "continue in effect through December 31, 1996" . . .
shall be deleted and replaced with . . . "shall continue in effect until
December 31, 1998".
(b) Subsection 24(b), of Section 24, INFRINGEMENT is deleted in its entirety
and replaced with the following:
24. INFRINGEMENT
(b) Except for the negligence provisions, the procedures set forth
in subsection (b) of Section 35, INDEMNIFICATION AND INSURANCE
shall apply in the case of any claims of infringement,
misappropriation or violation of intellectual property rights
for which indemnification will be sought.
(c) Section 35, LIABILITY and Amendment No. 4 item number 3 are deleted in
its entirety and replaced with the following:
35. INDEMNIFICATION AND INSURANCE
(a) SELLER shall indemnify, defend, and hold harmless CUSTOMER and
its affiliates, officers, agents, and employees, from all
claims, suits, actions, demands, damages, liabilities, expenses
(including fees and disbursements of counsel), judgements,
settlements and penalties of every kind based on (i)
personal injury, death, or property damage to the extent any of
the foregoing is proximately caused by either any defective
PRODUCT provided by SELLER, its officers, employees,
subcontractors or agents, or by the negligent or willful acts or
omissions of SELLER, its officers, employees, subcontractors or
agents, or (ii) strict liability in tort or product liability of
any other kind in connection with any PRODUCT provided by
SELLER, its officers, employees, subcontractors or agents or the
use, resale or distribution of any such PRODUCT by CUSTOMER. The
foregoing indemnity, to the extent permitted by law, shall apply
in the case of all claims that arise from the negligence,
misconduct or other fault of CUSTOMER, provided, however, that
if a claim is the result of the joint negligence, joint
misconduct, or joint fault of SELLER and CUSTOMER, the amount of
the claim for which CUSTOMER is entitled to indemnification
shall be limited to that portion of such claim that is
attributable to the negligence, misconduct or other fault of
SELLER. The obligations of this provision are in addition to
SELLER obligation to provide insurance and shall not be limited
by any limitation on the amount or type of damages, compensation
or benefits payable by SELLER under the Worker's Compensation
Acts, Longshoremen and Harborworker's Act, Disability Benefits
Act or any other employee benefit act.
(b) CUSTOMER shall promptly notify SELLER in writing of any suits,
claims or demands covered by this indemnity. Promptly after
receipt of such notice, SELLER shall assume the defense of such
claim with counsel reasonably satisfactory to CUSTOMER. If
SELLER fails, within a reasonable time after receipt of such
notice, to assume the defense with counsel reasonably
satisfactory to CUSTOMER, or if, in the reasonable judgement of
CUSTOMER, a direct or indirect conflict of interest exists
between the parties with respect to the claim, then CUSTOMER
shall have the right to undertake the defense, compromise and
settlement of such claim for the account and at the expense of
SELLER. Notwithstanding the above, if CUSTOMER in its sole
discretion so elects, CUSTOMER may also participate in the
defense of such actions by employing counsel at its own expense,
without waiving SELLER's obligations to indemnify or defend.
SELLER shall not settle or compromise any claim or consent to
the entry of any judgement without the prior written consent of
CUSTOMER and without an unconditional release of all liability
by each claimant or plaintiff to CUSTOMER. Such consent shall
be timely given and shall not be reasonably withheld.
(c) SELLER agrees to maintain during the term all insurance or bonds
required by law or this Agreement, including, but not limited to
(i) Workers Compensation and related insurance as
prescribed by the law of the state in which SELLER's services
are performed or PRODUCT are delivered; (ii) employer's
liability insurance with limits of at least five hundred
thousand dollars ($500,000) for each occurrence, and (iii)
comprehensive general liability insurance including Services
liability, and, if the use of motor vehicles is required,
comprehensive motor vehicle liability insurance, each with
limits of at least two million dollars ($2,000,000) for combined
single limit for bodily injury, including death, and/or property
damage. SELLER shall cause CUSTOMER to be included as an
additional insured under said policies (as "GTE Corporation and
its affiliates and subsidiaries") and CUSTOMER's coverage under
such policies shall be primary. SELLER shall waive its rights of
subrogation against CUSTOMER for Workers' Compensation claims.
SELLER shall, prior to rendering such SERVICES, furnish
certificates or evidence of the foregoing insurance indicating
the amount and nature of such coverage, the expiration date of
each policy, and stating that no material change or cancellation
of any such policy shall be effective unless thirty (30) days'
prior written notice is given to CUSTOMER.
(d) All work performed under this Agreement by any party shall be
performed as an independent contractor and not as an agent of
any other party. Persons furnished by the respective parties
shall be solely the employees or agents of such parties,
respectively, and shall be under the sole and exclusive
direction and control of such parties. They shall not be
considered employees of the other party for any purpose. Each
party shall be responsible for compliance with all laws, rules
and regulations involving their respective employees or agents,
including (but not limited to) employment of labor, hours of
labor, health and safety, working conditions and payment of
wages. Each party shall also be responsible, respectively, for
payment of taxes, including federal, state, and municipal taxes,
chargeable or assessed with respect to its employees or agents,
such as social security, unemployment, worker's compensation,
disability insurance and federal and state income tax
withholding.
(e) The parties expressly agree and understand that SELLER's
liability shall in no event exceed ********** dollars
($*********) for any one (1) occurrence, whether the claim
arises under this Agreement, in contract, tort or otherwise.
Such limitation does not apply to loss or claims arising from
death, personal injury or damage to real or tangible personal
property or to claims of infringement.
(d) The Agreement is hereby amended to include Section 48, CENTURY
COMPLIANCE. "SELLER agrees to the terms and conditions as listed in
Exhibit L, CENTURY COMPLIANCE".
(e) Exhibit A(2), GTE AFFILIATED ENTITIES, as amended in Amendment Number 7
dated January 1, 1996, is deleted in its entirety and replaced with a new
Exhibit A(3), GTE AFFILIATED ENTITIES, included as Attachment I to this
Amendment.
(f) Exhibit B(3), SUPPLIER PRODUCT(S), as amended in Amendment Number 7, is
deleted in its entirety and replaced with a new Exhibit B(3), SUPPLIER
PRODUCT(S), included as Attachment 11 to this Amendment.
(g) This Agreement is hereby amended to add Exhibit L, CENTURY COMPLIANCE,
included as Attachment III to this Amendment.
(h) Attachment E(2), HARDWARE AND SOFTWARE MAINTENANCE (1996), of Exhibit J,
GTE PRODUCT(S) SERVICES AND SUPPORT REQUIREMENTS, as amended in Amendment
Number 7 dated January 1, 1996, is deleted in its entirety and replaced
with a new Attachment E(3), HARDWARE AND SOFTWARE MAINTENANCE (1997),
included as Attachment IV to this Amendment:
4. ALL OTHER TERMS
All other terms and conditions of the Agreement shall remain in full force and
effect.
Each party represents that it has executed this Agreement through its authorized
corporate representative:
DIGITAL SOUND CORPORATION GTE COMMUNICATION SYSTEMS
CORPORATION
/s/ B. Xxxxxx Xxx /s/ Xxxxxxx X. Xxxxxx
------------------- -----------------------
B. Xxxxxx Xxx Xxxxxxx X. Xxxxxx
Vice President and CFO Manager-Contract/Management
Dated: February 18, 1997 Dated: February 12, 1997
APPROVED AS TO FORM AND LEGALITY
/s/ J. R. Xxxxxxxx
--------------------
Attorney, GTE Telephone Operations
Date: 2/11/97
ATTACHMENTS TO AMENDMENT NO. 8
EXHIBIT A(3): Revised List of GTE Affiliated Entities that are entitled to
purchase under the Purchase Agreement.
EXHIBIT B(2): DGSD Domestic Version Price/Product List
EXHIBIT L: Details Of Century Compliance Obligation For Procured Systems
Exhibit J ATTACHMENT E(2): Terms for Comprehensive Hardware And Software
Maintenance For Non-Warranty Products
EXHIBIT 10.57
AMENDMENT NUMBER 9
TO
PRODUCT PURCHASE AGREEMENT NUMBER 120900-92-01
----------------------------------------------
BETWEEN
GTE COMMUNICATION SYSTEMS CORPORATION
AND
DIGITAL SOUND CORPORATION
1. PARTIES
This Amendment Number 9 to Product Purchase Agreement Number 12090092-01
(Agreement) is made between Digital Sound Corporation, a California corporation,
with offices at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000
(SELLER) and GTE Communication Systems Corporation, a Delaware corporation,
acting through Its GTE Supply Division with offices at 000 Xxxxxx Xxxxx,
Xxxxxx, Xxxxx 00000 (CUSTOMER).
2. EFFECTIVE DATE
This Amendment Number 9 shall be effective October 1, 1997.
3. PURPOSE
The principal purpose of this Amendment is to provide for the commercial
availability to CUSTOMER of SELLER's Open Enhanced Application Platform,
System Software, and OnPoint Messaging, in accordance with the milestones,
specifications and other requirements set out in Attachment A to this
Amendment. The Amendment also provides for continued purchase of SELLER's
products, extension of the term of the Agreement, and other matters as set
out below.
4. PURCHASE COMMITMENT
(a) SELLER agrees to make commercially available to CUSTOMER SELLER's Open
Enhanced Application Platform, System Software, and OnPoint Messaging, in
accordance with the milestones, specifications and other requirements set
out in Attachment A to this Amendment. CUSTOMER agrees to purchase from
SELLER in the aggregate amount of fifty million dollars ($50,000,000.00)
of SELLER's PRODUCT(S) and/or related services during the period from
October 1, 1997 through the remaining term of this Agreement (the
"Purchase Commitment").
(b) If SELLER does not accomplish the development substantially in accordance
with the milestones set out in Attachment A, and does not meet the
milestones on time, with the commercial availability to CUSTOMER of the
platform, software and OnPoint Messaging that meets CUSTOMER's acceptance
and standardization criteria, by the final milestone date set out in
Attachment A, CUSTOMER may
exercise the option not to be bound by the Purchase Commitment. If SELLER
does not meet an interim milestone, no later than five (5) business days
after the failed milestone date, CUSTOMER shall give SELLER written
notice setting out the nature of the failure, or the milestone shall be
deemed to have been met. SELLER shall have ten business (10) days from
receipt of the notice to cure the failure. If the failure is not cured
within this time, CUSTOMER may terminate the Purchase Commitment by
giving SELLER written notice. If the failure is cured within this time,
CUSTOMER shall give SELLER written notice confirming the cure. Unless
otherwise agreed in writing, the days consumed to cure a failure shall
not result in changes to subsequent milestone dates, which shall remain
in effect as stated in Attachment A.
(c) SELLER's timely performance of the final milestone for commercial
availability of the Open Enhanced Application Platform, System Software,
and OnPoint Messaging, as set out in Attachment A, is a condition
precedent to Customers Purchase Commitment, unless waived in writing by
CUSTOMER. If SELLER does not meet this final milestone, CUSTOMER may
terminate the Purchase Commitment, including the minimum purchase
commitment in Section 4(d) of this Amendment (if any), by giving SELLER
written notice within thirty (30) days of the date for performance of the
final milestone.
(d) If SELLER meets all of the milestones in Attachment A specified to be
completed by the end of 1998, CUSTOMER agrees to purchase a minimum of
Fifteen Million Dollars ($15,000,000) in SELLER's products and/or related
services from SELLER during the period beginning October 1, 1997, through
and including December 31, 1998, and said purchase shall be applied
towards the Fifty Million Dollar ($50,000,000) aggregate Purchase
Commitment.
(e) The milestones can only be changed by mutual written agreement between
SELLER and CUSTOMER. CUSTOMER may request modifications to deliverables
set out in Attachment A. Such request must be made in writing. Upon
receipt of such request, SELLER shall notify CUSTOMER in writing prior to
starting work on the requested modification that SELLER is capable of
performing the modification and that additional time may be required to
complete said modification. If the parties mutually agree in writing to
the delay the date(s) set out in Attachment A for SELLER's delivery of
the deliverable to make CUSTOMER's requested modification, then SELLER
shall be excused for the time period set out in the mutual agreement and
CUSTOMER will otherwise honor its Purchase Commitment.
(f) SELLER agrees that, except for the specific functions assigned to
CUSTOMER in Attachment A, SELLER is not relying on participation by
CUSTOMER in order for SELLER to meet the milestones set out in Attachment
A. Nevertheless, if SELLER's performance of the requirements set out in
Attachment A is dependent upon CUSTOMER or a CUSTOMER contractor or
supplier, and if CUSTOMER or CUSTOMER's contractor or supplier fails to
perform and such failure proximately causes SELLER to fail to timely
deliver, then SELLER shall be excused for the time period of the delay
and CUSTOMER will otherwise honor its purchase obligations.
SELLER commits that it has sufficient control over all of SELLER's
subcontractors to meet the milestones, and agrees that a failure of a
subcontractor of SELLER to perform shall not excuse SELLER from meeting
the milestones.
(g) If CUSTOMER terminates the Purchase Commitment, SELLER nevertheless
agrees to use Its best efforts to support all of the platform acquired
and implemented by CUSTOMER. Termination of the Purchase Commitment does
not alter CUSTOMER's rights to purchase the platform and related products
under this Agreement.
5. RELATED AGREEMENTS
SELLER and CUSTOMER, acting through GTE Service Corporation, are
contemporaneously entering into the following related agreements: (a) Software
Professional Services Agreement; (b) Joint Software Development Agreement; (c)
Letter of Agreement Concerning Accelerated Development of Software; and (d)
Master Source Code and Technology Escrow Agreement (the 'Related Agreements").
The Master Source Code and Technology Escrow Agreement is made part of this
Agreement and is attached as Attachment E to this Amendment. In case of
conflict between terms of any of these Related Agreements and this Amendment or
this Agreement, the terms of the Related Agreements shall govern.
6. CHANGES TO TERMS
(a) Section 1, TERM, is amended as follows:
The words: 'shall continue in effect until December 31, 1998" shall be
deleted and replaced with the words: "shall continue in effect until
March 31, 2001."
(b) Section 6, PURCHASING FORECAST, is deleted in its entirety and replaced
with a new Section 6, PURCHASING FORECAST, as follows:
"Customer estimates that ft may purchase from Seller, in the aggregate
amount, the purchase forecast quantities set out in Attachment B.
Attachment B may be amended from time to time by the mutual agreement of
the parties. The purchase forecast is only an estimate or projection and
is not be to construed as a commitment to purchase that or any amount.
In no case shall Customer be responsible for any xxxx back or related
nonconformance charges should Customer's purchase fail to meet the
projected levels in Attachment B, nor shall failure to purchase the
estimated amount of Seller's Products in Attachment B, or any of Seller's
Products be a breach of this Agreement by customer."
(c) Section 25, USE OF CONFIDENTIAL INFORMATION, is amended by adding the
following subsection (d):
"(d) Attachment A and A-1 through A-7 are designated as confidential
business information of the party supplying the material, and are to
be treated as Information under the Agreement. The parties shall
not use this Information, or any portion thereof or any derivations
therefrom, for any purpose not related to this Agreement, nor
disclose this
Information or portions thereof or derivations therefrom to third
parties."
(d) Section 38 (a) is deleted in its entirety.
(e) Section 38 (b) is amended as follows:
In the first line after the beginning words, 'Upon termination of this
Agreement insert the words "pursuant to Section 38(e) or termination of
the Purchase Commitment pursuant to the provisions of Amendment 9," and
delete the words "without cause pursuant to this Section."
(f) Section 38(c)(7) is deleted in its entirety.
(g) A new Section 38 (e) is added to the Agreement as follows:
"In addition to any other rights afforded to CUSTOMER under this
Agreement, if SELLER or any of its subsidiaries shall sell, transfer,
assign or otherwise dispose of all or substantially all of the assets of
SELLER, if SELLER agrees to do any of the foregoing, or if a Change of
Control of SELLER shall occur, then CUSTOMER may terminate, at CUSTOMER'S
sole option, Customer's Purchase Commitment, by giving SELLER thirty
(30)days written notice, which shall be provided within thirty (30) days
of receipt by CUSTOMER of written notice from SELLER of an applicable
event triggering the application of this provision."
"A 'Change in Control' shall mean the direct or indirect acquisition of
the beneficial ownership of twenty percent (20%) or more of the
outstanding voting securities of SELLER, whether in a single transaction
or a series of transactions, by any person, group, corporation, or other
entity who is engaged, directly or through any of its affiliates, in any
business engaged in by GTE Corporation or any of its Affiliates (a
'Communications Company"), or the announcement by any person, group,
corporation, other entity or Communications Company of its intent to
acquire twenty percent (20%) or more of the outstanding voting securities
of SELLER."
(h) Section 44, SURVIVAL OF OBLIGATIONS, is amended as follows:
After the words: "beyond the termination, cancellation or expiration
hereof insert the words: 'including but not limited to, any obligation to
defend and indemnify, any warranty obligation, any obligation to escrow
software code and technology pursuant to any software and technology
agreement, any confidentiality or non-disclosure obligations and any
obligations under the dispute resolution clause of this Agreement."
(i) Exhibit A(3), GTE AFFILIATED ENTITIES, as amended in Amendment Number 8,
dated January 1, 1997, is deleted in its entirety and replaced with a new
Exhibit A(4), GTE AFFILIATED ENTITIES, included as Attachment C to this
Amendment.
A new Exhibit B, Attachment A, PULSEPOINT PRODUCTS, is added and included
as Attachment D to this Amendment.
(k) Exhibit C(l), SUPPLIER PRODUCT(S) PRICING, is deleted in its entirety and
replaced with the following:
EXHIBIT C(2)
SUPPLIER PRODUCT(S) PRICING
CUSTOMER shall receive a **** percent (**%) discount from the list prices
as set forth in Exhibit B, with the exception that no discount shall
apply to those items identified as "non-discountable'. Such discount
shall apply to all system components, including hardware and software,
except as otherwise provided for in this Exhibit C(2).
CUSTOMER shall receive a ****** percent (**%) discount from the list
prices as set forth in Exhibit B for hard disk drives, whether purchased
individually or as a part of a configured "3110" system.
CUSTOMER shall receive a **** percent (**%) discount from the list prices
as set forth in Exhibit B, Attachment A, PULSEPOINT PRODUCTS, with the
exception that no discounts shall apply to those items identified as
"nondiscountable."
(l) Attachment E(3), HARDWARE AND SOFTWARE MAINTENANCE (1997), Section C,
APPLICABILITY, is hereby amended to add the following:
"The hardware and software maintenance services described in this
Attachment shall also apply to CUSTOMER's entire installed base of
PulsePoint PRODUCT(S) as of October 1, 1997.
7. ALL OTHER TERMS
All other terms and conditions of the Agreement shall remain in full force
and effect.
Each party represents that it has executed this Agreement through its authorized
corporate representative:
DIGITAL SOUND CORPORATION GTE COMMUNICATIONS SYSTEMS
CORPORATION
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxx
------------------------ ---------------------
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxx
Vice President Sales, Vice President - General Manager
Americas and Europe
Date: November 17, 1997 Date: November 17, 1997
APPROVED AS TO FORM AND LEGALITY
/s/ (signature illegible)
---------------------------
Attorney GTE Telephone Operations
11/14/97
ATTACHMENTS TO AMENDMENT NO. 9
Attachment A: Software Applications & Features Specifications and Related
Milestone Dates
Attachment A lists milestones and other requirements that apply to the
development and commercial availability to GTE of DGSD's Open Enhanced
Application Platform, System Software, and OnPoint Messaging. The requirements
stated in this Attachment incorporate the specifications and other standards and
references set out in Attachments A-1 through A-7, which are part of this
Attachment A. The milestones set forth in this Attachment A must be completed
for the Purchase Commitment to remain in effect as set forth in Paragraph 4 of
Amendment No. 9.
Attachment A-1: Technical Specifications and Description of GTE networking plans
Attachment A-2: Architectural Specifications for GTE's Centralized Voicemail
Attachment A-3: Architectural Specifications for Digital Sound Corporation's
Messaging Platform
Attachment A-4: Definitions and Requirements for Messaging Standards
Attachment A-5: Technical Summary of Digital Sound Corporation's Proprietary
Rapid Application Creation Environment
Attachment A-6: Product Requirements' Specification for Voice Messaging
Application
Attachment A-7: GTE Sample/Mock Marketing Literature: Voice Mail User Guide
Attachment B: Digital Sound Corporation Product Milestone Chart and Correlated
Non-binding GTE Forecast
Attachment C: Revised List of GTE Affiliated Entities that are entitled to
purchase under the Purchase Agreement.
Attachment D: Digital Sound Corporation PulsePoint Product Description and Price
List
Attachment E: Master Source Code and Technology Escrow Agreement (to be attached
at a later date).
