1
Ex. 10.19
Southwestern Xxxx Telephone Contract No. C2703F0
Page 1 of 23
GENERAL AGREEMENT
PREAMBLE
This a Contract between Southwestern Xxxx Telephone Company (Buyer), a Missouri
corporation, having an office at Xxx Xxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000; and
World Wide Technology, Inc. (Seller), a ----------------------------------------
corporation, having an office at 000X Xxxxxx Xxxxxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000.
SCOPE
Buyer and Seller agree that ENGINEERING SERVICES (hereinafter ENGINEERING) and
INSTALLATION SERVICES (hereinafter INSTALLATION), collectively hereinafter
referred to as SERVICES, and MATERIAL are hereby offered for sale by Seller.
Services may be ordered in situations which may include but are not limited to,
material additions, material removals, and reconfiguration of Buyer's existing
material.
ENGINEERING and INSTALLATION may be ordered in combination, separately or in
conjunction with a purchase order (hereinafter "Order") which calls for Seller
to furnish MATERIAL.
TERM OF AGREEMENT
Buyer and Seller agree that the Contract term will be from April 1, 1995,
through March 31, 1997.
BILLING
For work against an Order placed pursuant to this Contract, and unless otherwise
specifically agreed, Seller will (1) VERIFY that all Seller's support documents
and Seller's packages/shipping containers bear Buyer's Order number; (2) render
invoices showing appropriate details for each Order or, when appropriate, each
shipment; (3) forward bills of lading, shipping notices, and transportation
bills, if applicable, to Buyer prior to final billing: (4) forward the invoices,
bills, and notices to the billing address on the Order unless specifically
directed otherwise by Buyer. If prepayment of transpiration charges is
authorized, Seller will include the transportation charges as a separate item on
the invoice.
Seller agrees to accept and acknowledge Buyer's notices of disputed billing and
to provide Buyer notice of the disposition and solution of such disputed billing
as soon as reasonably practicable. Seller will make its best effort to resolve
such dispute within thirty (30) days after the receipt of Buyer's notice.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
*Certain material has been omitted from this exhibit pursuant to a request for
confidential treatment and filed separately with the Securities and Exchange
Commission.
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Seller will render all billing invoices associated with an Order by the end of
the initial ninety (90) day period after acceptance in accordance with Clause
____, INSPECTION AND ACCEPTANCE OF INSTALLATION.
COMPLAINTS
Buyer reserves the right to notify Seller in cases where Buyer has identified
current or potential problem areas concerning Seller's SERVICES and/or MATERIAL
furnished hereunder. Whenever Buyer exercises such right, Seller agrees to:
(a) Accept such notice (hereinafter referred to as an "Engineering Complaint")
and handle it in accordance with Xxxx Communications Research, Inc.
("Bellcore") Technical Publication GR-230-CORE Issue 1. 9-1-94 "Generic
Requirements for Engineering Complaints."
(b) Acknowledge receipt of such Engineering Complaint and advise Buyer of
Seller's proposed organization responsible for resolving it within ten (10)
working days of Seller's receipt thereof.
(c) Resolve such Engineering Complaint within ninety (90) calendar days of the
date of Buyer's notice, unless a later date is mutually agreed upon by the
parties. If unable to resolve an Engineering Complaint within said ninety
(90) day period, Seller will issue an "interim report" as defined in
GR-230-CORE.
DOCUMENTATION
Information prepared by Seller and relating to the SERVICES and/or MATERIAL
provided hereunder will be in accordance with the requirements of Buyer.
All documentation including but without limitation, office drawings, wiring
drawings, fuse records, operational manual, and final test records summary
required by Buyer will be turned over to Buyer upon ENGINEERING completion
and/or INSTALLATION completion and will reflect final changes, modifications and
will be correct prior to turning over to Buyer. Such documentation relating to
specific applications will become the property of Buyer. Schematic drawings and
circuit descriptions will be provided by Seller as applicable for the MATERIAL
provided.
With each application of ENGINEERING and/or INSTALLATION by Seller to Buyer,
Seller will provide documentation covering such ENGINEERING and/or INSTALLATION.
This documentation and any subsequent changes or updates will reference Seller's
serialized numbers, issue numbers, and date of issue. Seller
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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agrees to maintain a mailing list of recipients of such documentation and
provide adequate copies of such manuals and subsequent changes or updates and
distribute such documentation in accordance with mailing list as provided by
Buyer.
ENGINEERING
ENGINEERING SERVICES include, but are not limited to, the planning, application,
configuration, and technical advice which may be associated with Buyer's
existing material or MATERIAL as ordered.
Provisions as SPECIFIED in [* confidential treatment requested] B of this
Contract will APPLY when ENGINEERING is requested from Seller.
INSPECTION AND ACCEPTANCE OF INSTALLATION
At reasonable times during the course of INSTALLATION, Buyer, at Buyer's
discretion or upon Seller's request, BUYER MAY INSPECT portions of each
INSTALLATION. Seller shall provide sufficient notice to Buyer of Seller's
testing schedule, and upon Buyer's request, Buyer may observe Seller's testing
to determine compliance with Buyer's acceptance standards or acceptance
procedures. Upon completion of INSTALLATION, Seller will submit to Buyer a
notice of completion or, if Buyer has elected advance turnover of sub-systems, a
notice of completion of advance turnover. The INSTALLATION will be considered
complete and ready for acceptance by Buyer when all wiring adjusting, and
testing or any other INSTALLATION require is completed in accordance with the
provisions herein, including CLAUSE ____, INSTALLATION STANDARDS; and CLAUSE
____, QUALITY ASSURANCE, of this Contract. Buyer will promptly make inspections
as Buyer deems necessary for final acceptance. Changes in Buyer's workmanship
standards will not be retroactive for SERVICES completed or in process by Seller
unless mutually agreed to by the parties.
Seller will notify Buyer in detail and in writing of the completion of Seller's
INSTALLATION, including the performance of all applicable equipment tests.
A. After receipt of Seller's completion notice, Buyer may conduct appropriate
Acceptance Tests AS SPECIFIED IN THE REQUEST FOR FIRM PRICE QUOTE OR ORDER
FOR ENGINEERING, OR ORDER FOR INSTALLATION SERVICES WHICH APPLIES TO THE
INSTALLATION.
B. If any requirements of the Acceptance Tests are not successfully met, Buyer
will so notify Seller in writing. Seller will, at no additional charge,
take such action as may be required to correct such deficiency and notify
Buyer after completion of
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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such corrective actions within forty-five (45) days of the date of Buyer's
notification. Upon receipt of Seller's notification of completion of such
corrective action, Buyer will have the right to repeat the appropriate
Acceptance Tests.
C. When the requirements of the Acceptance Tests are successfully met, Buyer
will indicate such acceptance by signing a certificate of acceptance. If
Seller does not receive notice from Buyer of unsatisfactory results of
Acceptance Tests or the certificate of acceptance within sixty (60) days
from Buyer's receipt of Seller's notice of completion, such INSTALLATION
will be deemed accepted by Buyer.
INSTALLATION
INSTALLATION SERVICES include, but are not limited to the assembly, wiring, and
testing of Buyer's MATERIAL, as ordered, or additions to Buyer's existing
material.
Provisions specified (* Confidential treatment requested) and B of this
Contract, and CLAUSE ____, INSTALLATION STANDARDS, herein will be used when
INSTALLATION is requested from Seller.
INSTALLATION STANDARDS
Buyer's central office installation provisions, relating to the SERVICES
described herein, are contained in Buyer's Technical Publication TP76300,
Revision 2, May 199, "Installation Guide", and Technical Reference
TR-EOP-000295, Issue 2, November 1987, "Isolated Ground Planes: Definition and
Application to Telephone Central Offices:, both of which are incorporated herein
by this reference. Unless otherwise mutually agreed to in writing, Seller will
install MATERIAL in accordance with such standards to the extent Seller's
installation standards supplement but do not reduce or detract therefrom.
ORDERS
Unless otherwise specified in writing, any Order for ENGINEERING, and/or
INSTALLATION, and/or MATERIAL will apply against this Contract. Seller agrees to
receive Buyer's Orders for SERVICES and/or MATERIAL on a direct Order basis
AND/OR Firm Price Quote basis. Seller agrees to provide Firm Price Quotes for
each Order and/or Buyer's Request For Quote, unless prices for said SERVICES
and/or MATERIAL is specified in this Contract. Seller also agrees to receive
Buyer's Orders and provide (* Confidential treatment requested) for SERVICES as
listed in Appendix B of this Contract.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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1. Direct Ordering
Buyer may obtain SERVICES from Seller typically in the following
circumstances:
A. ENGINEERING and/or INSTALLATION are requested from Seller on a Order
where such Order includes Seller furnishing MATERIAL; or
B. ENGINEERING and/or INSTALLATION only are requested from Seller
Seller's detailed pricing will include separate items for MATERIAL, if any,
ENGINEERING, INSTALLATION, drafting services (including the price to provide and
ship two (2) complete sets of ENGINEERING drawings for each job), and any other
services requested, which may include, but are not limited to, transportation,
temporary storage, hoisting, and the like.
Prices will be deemed firm unless otherwise delineated in a change Order
referencing the original Order. Such change Order could affect the originally
scheduled date(s) as mutually agreed upon prior to such change.
* Confidential treatment will be requested
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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PERFORMANCE
Consistent with the provisions of CLAUSE ____, FORCE MAJEURE, Seller, having
confirmed and agreed to a schedule or specific date(s) in the performance of an
Order(s), will be expected to meet the schedule or date(s) contained in such
Order(s). In the event Seller anticipates an inability to perform as previously
agreed on an Order, Seller will promptly notify Buyer.
When notice is provided as indicated above or when such previously agreed upon
schedule(s) or dates(s) is not met and such affected Order is for ENGINEERING
and/or INSTALLATION only, Seller will make every reasonable effort to mitigate
such delays in performance, at no cost to Buyer, including, but not limited to
overtime work, out of sequence installation effort, and premium transportation.
If requested by Buyer, Seller will document such efforts with reasonable proof.
However, Buyer will have the option to cancel such Order without any obligation
to Seller whatsoever except as to the payment for SERVICES already performed by
Seller on such Order. If requested by Buyer, Seller will document the extent of
such completed SERVICES with reasonable proof.
When notice is provided as indicated above or when such previously agreed upon
schedule(s) or dates(s) is not met and such affected Order is for MATERIAL,
Buyer may at any time terminate any or all Orders placed by it hereunder. Unless
otherwise specified herein, Buyer's liability to Seller with respect to any such
terminated Order will be limited to the actual costs incurred by Seller in
procuring MATERIAL (not usable in
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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Seller's other operations or salable to Seller's other customers) in process as
of the date of Buyer's notice of termination, less any salvage value thereof. If
requested, Seller agrees to substantiate such costs with proof satisfactory to
Buyer.
* Confidential treatment will be requested
QUALITY ASSURANCE
Seller agrees that SERVICES furnished hereunder by Seller will be subject to:
(i) Seller's quality control activities and procedures, including any
performance measurements, testing, quality process reviews or inspections
to implement such procedures.
(ii) The requirements contained in the current issues of the following Bellcore
documents:
TR-TSY-000785, Issue 1, December 1988, "Systems Equipment Engineering (SEE)
Associated Services - Quality program Analysis"
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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TR-TSY-000870, Issue 1, February 1991, "Electronic Discharge Control in the
Manufacture of Telecommunications Equipment" (Exceptions listed in Appendix
E of this Contract)
TR-NWT-001251, Issue 1, December 1992, "Quality System Generic Requirements
for Hardware" (Seller's objective is to be in full compliance with the
provisions of this document by December 31, 1993.)
Requirements listed in the applicable material contract MARKING Clause, as
specified in QPS No. 94.890, Issue 4, "Common Language Equipment
Identification (CLEI)/Bar Code Labels."
(iii) Quality Assurance Examination and/or Process Surveillance of Seller's
SERVICES, by Buyer or its representative ("Agent"), will be conducted in
accordance with the provisions of the Method of Procedure ("MOP")
associated with the job in progress as set forth in Buyer's Installation
Guide (TP76300), which may be amended from time to time with Seller's
written approval.
Seller further agrees that it will:
(a) Notify Buyer or Buyer's Agent when SERVICE is ready for examination and
give Buyer or Buyer's Agent reasonable opportunity to examine SERVICE at
any time prior to the schedule completion date. Such examination may be
performed prior to completion of the job in accordance with the
above-referenced MOP.
(b) Provide Buyer or Buyer's Agent with copies of Seller's Quality Manual,
current inspection procedures and product specifications for the SERVICE
furnished hereunder.
(c) Maintain and make available to Buyer or Buyer's Agent the data obtained
through Seller's quality control procedures which demonstrate that the
SERVICE meets the specified quality and reliability requirements.
(d) Provide Buyer or Buyer's Agent, at no charge, with reasonable access to
Seller's test equipment, facilities, data and specifications, reasonable
assistance from Seller's personnel and reasonably sufficient working space
to enable Buyer or Buyer's Agent to perform said Quality Assurance
Examination and/or Process Surveillance and/or a review of Seller's total
quality program at Seller's facilities.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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Upon the demonstrated ability and consistency of the quality program, Process
Surveillance procedures may be initiated by Buyer or Buyer's Agent.
Nothing contained herein will affect Buyer's or Seller's rights hereunder, under
any warranty, or under other provisions of this Contract.
RESOLUTION OF DISPUTES
Disputes arising from failure of the parties to resolve problems or
disagreements under this Contract through normal business interfaces will be
referred in writing, along with the supporting details, to the respective
Contract Administrator for resolution. Resolution will consist of a negotiated
settlement based upon their respective Contract Administrators' interpretation
of the responsibilities and intents reflected by the language of this Contract.
The Contract Administrators are:
Buyer: Area Manager - Procurement Contracting
Seller: _____________________________________
Either party may change its Contract Administrator at any time by giving notice
to the other party.
NOTHING CONTAINED HEREIN WILL AFFECT ANY OTHER RIGHTS OR REMEDIES THE PARTIES
MAY HAVE IN ANY COURT OF LAW OR EQUITY.
TERMS OF PAYMENT
In the event Seller is not required to provide MATERIAL, Seller's invoice for
ENGINEERING will be rendered upon the completion of such ENGINEERING, or as soon
thereafter as practicable. Seller's invoice for ENGINEERING on Orders where
Seller furnishes MATERIAL will be rendered upon receipt of MATERIAL by Buyer, or
as soon thereafter as practicable. Seller's invoice(s) for INSTALLATION will be
based on the actual amount of INSTALLATION completed.
* Confidential treatment will be requested
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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* Confidential treatment will be requested
WORK DONE BY OTHERS
Buyer will have the right to approve any subcontractor(s) to be used by Seller
in the provision of SERVICES AND MATERIAL hereunder on Buyer's or Buyer's
customer's premises. Such approval will not be unreasonably withheld. Prior to
the
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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commencement of SERVICES OR PROVISION OF MATERIAL Seller will notify Buyer of
Seller's intended subcontractor(s). If Buyer expresses to Seller objection to
Seller's subcontractor within ten (10) working days from Seller's notification
to Buyer, Buyer and Seller will reach a mutually agreeable resolution before
work commences.
ASSIGNMENT
Neither party may assign, subcontract or otherwise transfer its rights or
obligations under this Contract except with the prior written consent of the
other party which consent will not be unreasonably withheld; provided, however,
Buyer will have the right to assign this Contract to any present or future
affiliate, subsidiary or parent corporation, without securing the consent of
Seller, and may grant to any such assignee the same rights and privileges Buyer
enjoys hereunder. Any attempted assignment not assented to in the manner
prescribed herein, except an assignment confined solely to monies due or to
become due, will be void. It is expressly agreed that any assignment of monies
will be void if (a) Seller fails to give Buyer at least thirty (30) days' prior
written notice thereof, or (b) such assignment attempts to impose upon Buyer
obligations to the assignee additional to the payment of such monies or preclude
Buyer from dealing solely and directly with Seller in all matters pertaining to
this Contract, including the negotiation of amendments or settlements of charges
due.
BREACH OF CONTRACT
In the event Seller is in breach of any term or condition of this Contract, and
said breach continues for a period of ten (10) days after the giving of written
notice thereof, then, in addition to all other rights and remedies available at
law or in equity, Buyer will have the right to cancel this Contract.
CHOICE OF LAW
This Contract will be governed by Missouri law.
CLEAN UP
Upon completion of the SERVICES, Seller agrees to promptly remove all tools,
equipment, materials and debris from Buyer's premises.
COMPLIANCE WITH LAWS
Seller agrees to comply with the provisions of the Fair Labor Standards Act, the
Occupational Safety and Health Act, and all other applicable federal, state,
county and local laws, ordinances, regulations and codes (including the
identification and
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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procurement of required permits, certificates, approvals and inspections) in
Seller's performance under this Contract. Seller further agrees to comply with
all applicable Executive Orders and Federal regulations as set forth in form
SW9368, a copy of which is attached as APPENDIX C and incorporated herein.
Seller will defend, indemnify and hold Buyer harmless from any loss, liability,
damage or expense (including attorneys' fees and court costs) sustained by Buyer
because of Seller's noncompliance.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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CONFLICT OF INTEREST
Seller represents and warrants that no officer, director, employee or agent of
Buyer has been or will be employed, retained or paid a fee, or otherwise has
received or will receive any personal compensation or consideration, by or from
Seller or any of Seller's officers, directors, employees or agents in connection
with the arranging or negotiation of this Contract or other associated documents
or agreements.
COPYRIGHTS
Seller agrees that all rights, title and interest in and to all original works
of authorship which Seller produces or composes in connection with the Services
shall be considered works made for hire and shall belong to the Buyer, including
all copyrights thereon, and the rights to obtain registrations of copyrights
thereon throughout the world. In the event that such works contemplated
hereunder as works made for hire shall not be considered works made for hire,
Seller hereby assigns such Works and all rights, title and interest in them to
Buyer.
CURE
Buyer will not be deemed to be in default hereunder and Seller may not attempt
to enforce any remedy for any claimed default, unless Buyer fails to cure or
correct same within ten (10) days following receipt of written notice thereof
from Seller.
ENTIRE AGREEMENT
It is agreed that estimates furnished by Buyer do not constitute commitments.
The terms contained in this Contract constitute the entire agreement between
Seller and Buyer which may not be modified except by a written instrument signed
by both parties. Any terms contained in Seller's proposal or acceptance of
Buyer's offer in Seller's invoice or in any other communication, which add to,
vary from or conflict with the terms herein will be void. The provisions of this
Contract supersede all prior oral and written quotations, communications,
agreements and understandings of the parties with respect to the subject matter
hereof. The parties further agree that no rights arising from this Contract will
inure to the benefit of any third party other than a permitted assignee.
FORCE MAJEURE
Neither party will be held responsible for any delay or failure in performance
of any part of this Contract to the extent that such delay or failure is caused
by fire, flood,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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explosion, war, strike, embargo, government requirement, civil or military
authorities, Act of God, public enemy, acts or omissions of carriers, or other
causes beyond the control of Seller or Buyer. If any force majeure condition
occurs, ("Condition") the party delayed or unable to perform will give immediate
notice to the other party and the notified party may elect to:
(a) Terminate this Contract or any Order or part of either as to Services not
already performed.
(b) Suspend this Contract for the duration of the Condition, buy or sell
elsewhere Services to be bought or sold hereunder, and deduct from any
commitment the quantity bought or sold or for which such commitments have
been made elsewhere.
(c) Resume performance once the Condition ceases with an option in the notified
party to extend the term of this Contract up to the length of time the
Condition endured.
Unless written notice to the contrary is given within thirty (30) days after
such notified party is notified of the Condition, option (b) above will be
deemed selected
HAZARDOUS MATERIALS/REGULATED SUBSTANCE
A "Regulated Substance," as use herein is a generic term used to describe all
materials that are regulated by any federal, state or local government during
transportation, handling and/or disposal. This includes, but is not limited to,
materials that are regulated as (a) "hazardous materials" under the Hazardous
Materials Transportation Act, (b) "chemical hazards" under Occupational Safety
and Health Administration standards, (c) "chemical substances or mixtures" under
the Toxic Substances Control Act, (d) "pesticides" under the Federal
Insecticide, Fungicide and Rodenticide Act, and (e) "hazardous wastes" as
defined or listed under the Resource Conservation and Recovery Act.
If any material furnished under this Contract contains a Regulated Substance,
Seller agrees to notify Buyer immediately and provide to Buyer all necessary
notification and other information (including but not limited to OSHA Material
Safety Data Sheets) regarding said Regulated Substance as may be required by
law. Seller further agrees to defend, indemnify and hold Buyer harmless from any
liability, penalty, damage or expense (including attorneys' fees and court
costs) sustained by Buyer because of Seller's noncompliance herewith.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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IDENTIFICATION CREDENTIALS
Buyer may, at its discretion, require Seller's employees to display
identification credentials, which Buyer may issue, in order to gain access to
Buyer's premises for the performance of the SERVICES. If, for any reason, any
employee of Seller to whom credentials have been issued ceases to perform the
SERVICES, Seller will immediately inform Buyer's representative in the speediest
manner possible and thereafter promptly return to Buyer's representative that
employee's identification credentials or provide a written statement of the
reason why such credentials cannot be returned.
INDEPENDENT CONTRACTOR
Seller will perform this Contract as an independent contractor and not as an
agent, employee or partner of Buyer.
INFRINGEMENT
Infringement means any claim of infringement, of any patent, trademark,
copyright, trade secret or other proprietary interest of any third party based
on the manufacture, installation, normal use, lease or sale of any program,
documentation, process or material furnished to Buyer in connection with the
Services.
Seller agrees to indemnify and hold Buyer harmless from any loss, liability,
damage or expense (including increased damages for willful infringement,
punitive damages, attorneys' fees and court costs) resulting from such
Infringement except where such infringement arises solely from Seller's
adherence to Buyer's written detailed instructions or directions. Such exception
will not, however, include:
(a) Services or merchandise available on the open market or the same as such
services or merchandise, nor
(b) Services or items of Seller's origin, design or selection.
SELLER WARRANTS THAT IT HAS MADE REASONABLE INDEPENDENT INVESTIGATION (INCLUDING
OBTAINING LEGAL OPINIONS) TO DETERMINE THE LEGALITY OF ITS RIGHT TO PRODUCT AND
SELL THE MATERIAL/EQUIPMENT/SERVICES PROVIDED HEREIN.
EACH PARTY WILL DEFEND OR SETTLE, AT ITS OWN EXPENSE, ANY ACTION OR SUIT AGAINST
THE OTHER PARTY FOR WHICH IT IS RESPONSIBLE UNDER THIS CLAUSE. FURTHER, EACH
PARTY WILL
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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PROMPTLY NOTIFY THE OTHER PARTY OF ANY CLAIM OF INFRINGEMENT FOR WHICH THE OTHER
PARTY IS RESPONSIBLE HEREUNDER AND COOPERATE WITH THE OTHER PARTY IN EVERY
REASONABLE WAY TO FACILITATE THE DEFENSE THEREOF.
IN THE EVENT THAT SELLER, AFTER NOTIFICATION OF ANY CLAIMS OF WHICH SELLER IS
RESPONSIBLE, DOES NOT ASSUME THE DEFENSE OF SUCH ACTION, SELLER WILL REIMBURSE
BUYER FOR ALL OF ITS COSTS INCURRED IN THE DEFENSE OF THE CLAIM, INCLUDING, BUT
NOT LIMITED TO ATTORNEYS' FEES AND INTEREST ON SUCH BUYER'S PAYMENT OF SAID
AMOUNTS FROM THE DATE OF BUYER'S PAYMENT OF SAID AMOUNTS.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
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INSURANCE
With respect to performance hereunder, Seller agrees to maintain, at all times
during the term of this Contract, the following insurance coverage and any
additional insurance and/or bonds required by law:
(a) Workers' Compensation insurance with benefits afforded under the laws
of the state in which the Services is to be performed.
(b) Employer's Liability insurance with minimum limits of $100,000 for
bodily injury by accident, $100,000 for bodily injury by disease per
employee and $500,000 for bodily injury by disease policy aggregate.
(c) General Liability insurance with the minimum limits of $1,000,000 per
occurrence for bodily injury and property damage arising out of
Premises/Operations, $1,000,000 per occurrence Personal Injury and
$1,000,000 General Policy Aggregate (applicable to Commercial General
Liability Policies), and $1,000,000 per occurrence/aggregate for
Products/Completed Operations. Coverage must include Blanket
Contractual, Independent Contractor's Liability and Broad Form
Property Damage. Buyer is to be named as an "Additional Insured" as
respects General Liability.
(d) If use of motor vehicles is required, Automobile Liability insurance
with minimum limits of $1,000,000 per occurrence for bodily injury and
property damage, which coverage will extend to all owned, hired and
non-owned autos.
Insurance companies affording coverage hereunder must have a Best's Rating of
B+VII or better.
Upon Buyer's request, Seller agrees to furnish certificates or other acceptable
proof of the foregoing insurance which will provide for Buyer to be notified in
writing at least thirty (30) days prior to cancellation of or any material
change in any of the insurance evidenced thereby.
INVOICING
Seller will render its invoice upon completion of the Services to Buyer's
satisfaction and Buyer agrees to pay same within thirty (30) days of receipt.
Buyer reserves the right, before making any payment, to require proof that all
parties furnishing labor and/or materials in connection with the Services have
been paid. Buyer may also
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
00
Xxxxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xx. X0000X0
Page 18 of 23
withhold in order to satisfy any claim which Buyer may have against Seller
(whether or not arising under this Contract).
LIABILITY
Seller agrees to indemnify and save Buyer harmless (including its officers,
directors, agents and employees) from any and all liability, loss, damage or
expense (including attorneys' fees and court costs), incurred by Buyer in
connection with any claim or suit resulting from Services or the acts of
omissions of Seller (including any of its servants, agents or subcontractors but
excepting the negligent acts or omissions solely of Buyer) in performing the
Services.
Seller further agrees to defend Buyer, at Buyer's request, against any such
claim or suit, and Buyer agrees to promptly notify Seller of any claim for which
Seller may be responsible under this clause.
Seller's foregoing agreement to indemnify and save Buyer harmless and defend
includes, but is not limited to, any claim, suit or action of infringement of
any patent, trademark, copyright, trade secret or any other intellectual
property of any third party.
Seller agrees not to implead or bring any action against Buyer or Buyer's
employees based on any claim by any person for personal injury or death that
occurs in the course or scope of employment of such person by Seller and that
arises out of the Services.
LICENSES
No licenses, express or implied, under any patents are granted by Buyer to
Seller under this Contract.
NON-EXCLUSIVE DEALING
It is agreed that this Contract does not grant Seller an exclusive right to
perform the Services and that Buyer may itself perform, or contract with other
suppliers to perform, the Services.
NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term of
this Contract will be construed as a waiver of such term. The waiver by Buyer in
one instance of any default of Seller will not be deemed a waiver of any other
default of Seller. The express provision herein for certain rights and remedies
of Buyer are in
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
00
Xxxxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xx. X0000X0
Page 19 of 23
addition to any other legal and equitable rights and remedies to which it would
otherwise be entitled.
NOTICES
Any notice or demand which under the terms of this Contract or otherwise must or
may be given or made by Seller or Buyer will be in writing and given or made by
facsimile or similar communication or by certified or registered mail, return
receipt requested, addressed to the respective parties as shown:
(a) To Buyer: Southwestern Xxxx Telephone Company
0000 Xxxx Xxxxxx 0-X-00
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
(b) To Seller:
---------------------------
---------------------------
---------------------------
Attn:
---------------------
Such notice or demand will be deemed to have been given or made when sent, if
sent by facsimile or similar communication, or when deposited, postage prepaid,
in the U.S. mail.
The above addresses may be changed at any time by giving thirty (30) days' prior
written notice as above provided
PATENTS
As a part of this Contract and without additional compensation, Seller agrees to
and does hereby sell, assign, and transfer to the Buyer, its successors and
assignees, the entire right, title and interest in and to any and all
inventions, discoveries, or improvements which are conceived or first reduced to
practice in the performance of this Contract, and to all applications for and
Letters Patent covering same, as well as any reissues, divisions, and extensions
of said applications or Letters Patent. Seller further agrees to furnish Buyer
with complete information on each such invention, discovery, or improvement and
to make, execute and deliver to the Buyer any and all patents or patent
applications, as well as all papers, documents, affidavits, statements, or other
instruments, in such form, terms and contents as required by the Buyer in or
incident to the prosecution of any and all applications for patent filed by
Seller or the Buyer with respect to such inventions, discoveries, or
improvements or in
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
00
Xxxxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xx. X0000X0
Page 20 of 23
the adjustment or any other actions or proceedings in which such applications
may become involved.
Before final payment is made under this Contract, Seller shall furnish to Buyer
complete information in respect of inventions, discoveries, or improvements
conceived or reduced to practice in connection with the Services or a statement
that no inventions, discoveries, or improvements emanated from such Services.
PLANT AND WORK RULES
Each party's employees and agents will, while on the premises of the other,
comply with all plant rules and regulations and, where required by government
regulations, submit satisfactory clearance from the U.S. Department of Defense
and/or other federal authorities concerned.
PUBLICITY
Seller agrees not to advertise, or otherwise make known to others, any
information regarding this Contract. Seller further agrees not to use in any
advertising, sales promotion, press releases or other publicity matters any
endorsements, direct or indirect quotes, or pictures implying endorsement by
Buyer or any of its employees without Buyer's prior written approval. Seller
will submit to Buyer for written approval, prior to publication, all publicity
matters that mention or display Buyer's name and/or marks or contain language
from which a connection to said name and/or marks may be inferred.
RECORDS AND AUDIT
Seller agrees that it will:
(a) Maintain complete and accurate records of all amounts billable to and
payments made by Buyer hereunder in accordance with standard
recognized accounting practices.
(b) Retain such records and reasonable billing detail for a period of
three (3) years from the date of final payment for Services.
(c) Provide reasonable supporting documentation to Buyer concerning any
disputed invoice amount within thirty (30) calendar days after receipt
of written notification of such dispute.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
00
Xxxxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xx. X0000X0
Page 21 of 23
(d) Permit Buyer, through its accredited representatives, to inspect and
audit during normal business hours the charges invoiced to Buyer.
Should Buyer request an audit, Seller will make available any
pertinent records and files.
RELEASES VOID
Neither party will require waivers or releases of any personal rights from
representatives of the other in connection with visits to each other's
respective premises, and no such releases or waivers will be pleaded by Seller
or Buyer in any action or proceeding.
SELLER'S INFORMATION
No specifications, drawings, models, samples, tools, apparatus, computer
programs, technical information or data, written, oral or otherwise, furnished
by Seller to Buyer under this Contract or in contemplation hereof will be
considered by Seller to be confidential or proprietary.
SEVERABILITY
If any provision of this Contract is determined to be invalid, such invalidity
will not invalidate the entire Contract, but rather the entire Contract will be
construed as if it did not contain the particular invalid provision(s), and the
rights and obligations of Seller and Buyer will be construed and enforced
accordingly.
SURVIVAL OF OBLIGATIONS
Seller's obligations under this Contract which by their nature would continue
beyond the Services termination or expiration hereof, including, by way of
illustration only and not limitation, those in the clauses entitled COMPLIANCE
WITH LAWS, INFRINGEMENT, LIABILITY, PUBLICITY, RELEASES VOID, SEVERABILITY, USE
OF INFORMATION and [* Confidential treatment will be requested], will survive
the termination or expiration of this Contract.
TAXES
In the event Buyer is liable for excise taxes or sales taxes collected by Seller
on the Services, Seller agrees to xxxx such taxes as separate items, listing
each tax jurisdiction involved. Buyer will have the right to require Seller to
contest with the imposing jurisdiction, at Buyer's expense, any taxes or
assessments which Buyer may deem to be improperly levied. Seller further agrees,
on request of Buyer, to furnish statements evidencing that taxes and assessments
for which Buyer is responsible
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
00
Xxxxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xx. X0000X0
Page 22 of 23
hereunder have been paid. However, Seller will not xxxx for taxes in any
situation where Buyer has provided Seller with either a Direct Payment Exemption
Certificate or a Sales Tax Exemption Certificate.
TERMINATION
Buyer may terminate this Contract in whole or in part at any time by giving
Seller at least thirty (30) days' prior written notice. Upon termination, Buyer
agrees to pay Seller all amounts due for Services accepted by Buyer up to the
effective date of termination, which payment will constitute a full and complete
discharge of Buyer's obligations to Seller hereunder.
TIMELY PERFORMANCE
If Seller learns of anything that might prevent the timely performance of the
Services. Seller will immediately notify Buyer of all relevant information
concerning the potential delay.
USE OF INFORMATION
Any specifications, drawings, models, samples, tools, apparatus, computer
programs, technical or business information or data, written, oral or otherwise
("Information"), furnished to Seller under this Contract or in contemplation
hereof will remain Buyer's property, and all copies thereof, in written, graphic
or other tangible form, will be returned to Buyer upon request. Seller agrees to
keep Information confidential in performing under this Contract and not use same
for any other purpose except upon such terms as may be agreed by Seller and
Buyer in writing.
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
00
Xxxxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xx. X0000X0
Page 23 of 23
WORK DONE BY OTHERS
If any part of the Services is dependent upon work done by others, Seller agrees
to inspect such work and promptly report to Buyer any defect that renders same
unsuitable for Seller's proper performance hereunder. Seller's silence will
constitute approval of such other work as being fit, proper and suitable for
Seller's performance of the Services. Seller will be completely responsible for
all persons furnished by Seller working in harmony with all others when working
on Buyer's premises.
WITNESS/SIGNATURE BLOCK
IN WITNESS WHEREOF, the foregoing Contract has been executed by authorized
representatives of the parties hereto, in duplicate, as of the dates set forth
below.
Seller Accepted: Buyer Accepted:
Southwestern Xxxx
Telephone Company
By: By:
-----------------------------------------
Title: Title:
--------------------------------------
Date: Date:
---------------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
24
AMENDMENT NO. 4
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 3 TO CONTRACT NO. C2703F0 is made and entered into as of the
1st day of July, 1994 by and between World Wide Technology, Incorporated, a
Missouri corporation ("Seller"), and Southwestern Xxxx Telephone Company, a
Missouri corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"); and WHEREAS, said Contract has heretofore been amended by
Amendment Nos. 1-2, dated November 4, 1991 and April 22, 1993 respectively, and
WHEREAS, Seller and Buyer desire to further amend the Contract as hereinafter
contained, the parties hereto agree as follows:
Now, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, the parties hereto agree as follows:
1. Contract Term. The term of the Contract set forth in Clause 1, MATERIAL, is
hereby extended through June 30, 1997.
2. [* Confidential treatment will be requested]
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
25
Contract No. C2703F0
Amendment No. 3
Page 2 of 2
3. The following CLAUSE 40 is hereby added as follows:
CLAUSE 40. SYNOPTICS EQUIPMENT-STATEMENT OF WORK
As provided in seller's response to Request for Quotation 94-058-CV Seller
agrees to provide services for Buyer's Synoptics Material. A detailed
description of specific services is included in Appendix B, attached hereto
and by this reference made a part hereof.
4. No Other Changes. In all other respects, the Contract, as heretofore
amended, will remain unchanged and the parties hereby reaffirm the terms
and provisions thereof.
IN WITNESS HEREOF, Seller and Buyer have caused this Amendment No. 3 to Contract
C2703F0 to be executed in duplicate counterparts, each of which will be deemed
to be an original instrument, as of the date first above written.
WORLD WIDE TECHNOLOGY, SOUTHWESTERN XXXX
INCORPORATED TELEPHONE COMPANY
("Seller") ("Buyer")
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx Vilcinshas
----------------------------------------- ---------------------
Title: President Title: Contract Manager
-------------------------------------- --------------------
Date: 7-22-94 Date: 7-18-94
------------------------------- -----------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
26
Contract No. C2703F0
Amendment No. 4
Appendix A
Page 1 of 3
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
27
Contract No. C2703F0
Amendment No. 4
Appendix A
Page 2 of 3
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
28
Contract No. C2703F0
Amendment No. 4
Appendix A
Page 3 of 3
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
29
Xxxxxxxx Xx. X0000X0
Xxxxxxxxx Xx. 0
Xxxxxxxx X
Page 1 of 4
STATEMENT OF WORK
SYNOPTICS EQUIPMENT
EQUIPMENT ACQUISITION
Seller will furnish to Buyer Synoptics equipment for new orders in no longer
than 5 (five) working days from receipt of Buyer's Purchase Order. In cases of
emergency Seller will attempt to meet Buyer's requested date.
* Confidential treatment requested
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
30
Xxxxxxxx Xx. X0000X0
Xxxxxxxxx Xx. 0
Xxxxxxxx X
Page 2 of 4
* Confidential treatment requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
31
Xxxxxxxx Xx. X0000X0
Xxxxxxxxx Xx. 0
Xxxxxxxx X
Page 3 of 4
* Confidential treatment requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
32
Xxxxxxxx Xx. X0000X0
Xxxxxxxxx Xx. 0
Xxxxxxxx X
Page 4 of 4
* Confidential treatment will be requested
RESTRICTED - PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
33
Contract No. C2703F0
Amendment No. 4
Page 1 of 2
AMENDMENT NO 4
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 4 TO CONTRACT NO. C2703F0 is made and entered into as of the
29th day of May, 1996 by and between World Wide Technology, Incorporated, a
Missouri corporation ("Seller"), and Southwestern Xxxx Telephone Company, a
Missouri corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"), and WHEREAS, said Contract has heretofore been amended by
Amendment Nos. 1-3, dated November 4, 1991, April 22, 1993 and July 22, 1994
respectively, and
WHEREAS, Seller and Buyer to desire to further amend the Contract as hereinafter
contained, the parties hereto agree as follows:
Now, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, the parties hereto agree as follows:
1. Insert the following clause to Contract No. C2703F0:
"RESALE OF MATERIAL
Seller hereby agrees that the rights of Buyer hereunder, including but not
limited to Buyer's rights under the clauses herein entitled "INFRINGEMENT",
"LIABILITY", and (* Confidential treatment requested) and Seller's
representations and warranties will inure to the benefit of Buyer's customers of
the MATERIAL. Seller further agrees to assume sole responsibility, as between
Buyer and Seller, for resolving any claim brought by any such customer against
Buyer which is attributable to Seller's failure to promptly deliver MATERIAL;
breach of warranty; design defect; negligence; products liability; patent,
trademark, copyright or other infringement, or any other claim, whether similar
or not,
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
34
Contract No. C2703F0
Amendment No. 4
Page 2 of 2
attributable to the MATERIAL or the acts or omissions of Seller in
furnishing MATERIAL hereunder (collectively, the "Claims").
Seller will defend, indemnify and hold Buyer harmless from and against
any loss, liability, damage or expense (including attorneys' fees and court
costs) arising out of or resulting from any Claim. Buyer agrees to promptly
notify Seller of any Claim and cooperate with Seller, upon request and at
Seller's expense, in every reasonable way to facilitate the defense thereof.
Buyer, at its sole discretion, will determine the extent to which it
will market, advertise, promote or otherwise offer the MATERIAL to its
customers.
2. No Other Changes. In all other respects, the Contract, as heretofore
amended, will remain unchanged and the parties hereby reaffirm the terms
and provisions thereof.
IN WITNESS HEREOF, Seller and Buyer have caused this Amendment No. 4 to Contract
No. C2703F0 to be executed in duplicate counterparts, each of which will be
deemed to be an original instrument, as of the date first above written.
WORLD WIDE TECHNOLOGY, SOUTHWESTERN XXXX
INCORPORATED TELEPHONE COMPANY
("Seller") ("Buyer")
By: /s/ By:
------------------------------------------ -------------------------------
Title: President Title: Contract Manager
--------------------------------------- -------------------------------
Date: June 4, 1996 Date: May 30, 1996
---------------------------------------- -------------------------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
35
Contract No. C2703F0
Amendment No. 5
Page 1 of 1
AMENDMENT NO. 5
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 5 TO CONTRACT NO. C2703F0 is made and entered into as of the
thirtieth day of June 1997 by and between World Wide Technology, Inc., a
Missouri Corporation ("Seller"), and Southwestern Xxxx Telephone Company, a
Missouri corporation ("Buyer").
WITNESSETH:
-----------
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"); and WHEREAS, said Contract has heretofore been amended by
Amendment Nos. 1 thru 4, dated November 4, 1991, April 22, 1993, July 22, 1994
and April 4, 1996 respectively; and
WHEREAS, Seller and Buyer desire to amend the Contract as hereinafter set forth;
Now, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, the parties hereto agree as follows:
1. Contract Term. The term of the Contract set forth in Clause 1, MATERIAL, is
hereby extended through June 30, 2000.
2. No Other Changes. In all other respects, the Contract will remain unchanged
and the parties hereby reaffirm the terms and provisions thereof.
IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment No. 5 to
Contract No. C2703F0 to be executed in duplicate counterparts, each of which
will be deemed to be an original instrument, as of the date first above written.
WORLD WIDE TECHNOLOGY, SOUTHWESTERN XXXX TELEPHONE
INC. COMPANY
/s/ Xxxxxxxxx Xxxxx
------------------------------------ ---------------------------
("Seller") ("Buyer")
By: /s/ Xxxxx Xxxxxxx By:
---------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxxxxx Xxxxx C.P.M.
------------------------------- -----------------------------
Title: President Title: Contract Manager
------------------------------- -----------------------------
Date: 6/30/97 Date: 6-26-97
------------------------------- ----------------
RESTRICTED PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
36
Contract No. C2703F0
Amendment No. 6
Page 1 of 7
AMENDMENT NO. 6
TO
CONTRACT NO. C2703F0
This AMENDMENT NO. 6 TO CONTRACT No. C2703F0, effective upon signature of both
parties, is between World Wide Technology Inc., a Missouri Corporation
("Seller"), and Southwestern Xxxx Telephone Company, a Missouri Corporation
("Buyer").
WITNESSETH
WHEREAS, Seller and Buyer entered into Contract No. C2703F0, on October 26, 1990
(the "Contract"), and WHEREAS, said contract has heretofore been amended by
Amendment Nos. 1 through 5 dated November 4, 1991, April 22, 1993, July 22,
1994, April 4, 1996 and Jun 30, 1997 respectively, and
WHEREAS, in consideration of the premises and covenants hereinafter contained,
the parties hereto agree as follows:
I. ADD DEFINITIONS
"Cancel" or "Cancellation" means the ending of this Agreement or an Order by a
non-defaulting party, where the other party is in default of an obligation under
this Agreement or any Order. Upon Cancellation, except as otherwise provided in
this Agreement, the non-defaulting party may exercise such remedies against the
defaulting party as are available under this Agreement, at law, or in equity.
"Delivery Date" means the date on which all items are delivered to the locations
specified in the applicable Order. The initially scheduled Delivery Date for a
Product is stated in the applicable Order and is subject to change as provided
in this Agreement.
"Information" means ideas, concepts, trade secrets, techniques, specifications,
drawings, sketches, models, samples, tools, computer programs, technical
information, and other confidential business, customer or personnel information
or data, whether written, oral, or otherwise.
"Laws and Regulations" means all applicable federal, state and local laws,
ordinances, regulations, codes, rules, orders and requirements of all duly
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
37
Contract No. C2703F0
Amendment No. 6
Page 2 of 7
constituted governmental authorities, including the procurement of permits and
licenses when needed and environmental laws such as California Proposition 65.
"Order" means each Order executed hereunder ordering Products and/or Services.
Orders shall be deemed to incorporate (1) the provisions of this Agreement as it
may be from time to time amended, (2) the Specs applicable to such Order, and
(3) any subordinate documents attached to or referenced in this Agreement or the
Order. Each such Order shall be deemed to be a separate and independent
agreement between the parties with respect to the subject matter thereof and
shall be substantially in the form set forth in the applicable Exhibit attached
hereto and made a part hereof.
"Performance Date" means the Delivery Date for Delivery Software or the
Installation Date for Installation Software as specified in the applicable
Order.
"Personnel" means Supplier's employees, subcontractors, or agents performing
Services under this Agreement.
"Products" means Equipment, Software and any other products provided by Seller
hereunder to SBC.
"Services" means all services described under the applicable Order and provided
by Seller hereunder to SBC, including but not limited to training, installation
of the Products, maintenance services and preparation of documentation.
"Software" means the Standard Software which is provided hereunder by Seller to
SBC.
"Specs" means (1) the Software publisher's published specifications, (2)
Seller's published specifications, and (any other specifications for the
Products and Services which are attached hereto or referenced in and made a part
of the applicable Order.
"Standard Software" means the computer programs which are listed as Standard
Software in the applicable Order and licensed hereunder by SBC from Seller.
"Seller's Standard Charges" means Seller's prevailing rates and charges for
Products as determined from price lists, less any discounts applicable thereto,
in effect at the time when the work was performed.
"Terminate" or "Termination" means the ending of this Agreement or any Order by
a party, for any reason, with or without cause, and without liability to the
other party.
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
38
Contract No. C2703F0
Amendment No. 6
Page 3 of 7
[* Confidential treatment will be requested]
II. REPLACE CLAUSES
1. MATERIAL
The contract pertains to the purchases of such quantities of printers, modems,
terminals, and Software of Seller's offering ("Material") as may by ordered by
Buyer for shipment during the period between November 15, 1998 through December
31, 2000.
2. NOTICES
Except as otherwise provided in this Contract, or applicable Order, all notices
or other communications hereunder shall be deemed to have been duly given when
made in writing, and either 1) delivered in person, 2) delivered to an agent,
such as an overnight or similar delivery service, or 3) deposited in the United
States Mail, postage prepaid, or 4) facsimile transmission, and addressed as
follows:
To: World Wide Technology
Contract Manager/ Telco Business Unit
Xxxx Xxxxxxxx - Director
000 X. Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
To: Southwestern Xxxx Telephone Company
Xxxx Michnoik
Contract Manager
0000 Xxxx Xxxxxx, Xx. 0-X-00
Xx. Xxxxx, Xxxxxxxx 00000
The address to which notices or communications may be given by either party may
be changed by written notice given by such party to the other pursuant to this
paragraph entitled "Notices".
4. AFFILIATED COMPANIES
Seller agrees that an Affiliate may place Orders with Seller which incorporate
the terms and conditions of this Agreement, and that the term "Buyer" shall be
deemed to refer to an Affiliate when an Affiliate places an Order with Seller
incorporating the terms and conditions of this Agreement. An Affiliate will be
responsible for its own obligations,
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
39
Contract No. C2703F0
Amendment No. 6
Page 4 of 7
including, but not limited to, all charges incurred in connection with such
Order. The parties agree that nothing in this Agreement will be construed as
requiring Buyer to indemnify Seller, or to otherwise be responsible, for any
acts or omissions of an Affiliate, nor shall anything in this Agreement be
construed as requiring an Affiliate to indemnify Seller, or to otherwise be
responsible, for the acts or omissions of Buyer.
The parties agree that the term "Affiliate" includes (1) a company, whether
incorporated or not, which owns, directly or indirectly, a majority interest in
either party (a "parent company"), and (2) a company, whether incorporated or
not, in which a 5% or greater interest is owned, either directly or indirectly,
by: (i) a party to this Agreement, or (ii) a parent of a party to this
Agreement.
III. ADD NEW CLAUSES
* Confidential treatment will be requested
40. ACCEPTANCE OR REJECTION
Buyer reserves the right to accept or reject Materials after delivery at the
location designated in the applicable Order. If, prior to acceptance by Buyer,
any of the Materials are found to not be in strict conformance to this Contract
and the applicable Order, Buyer shall have the right: (a) to reject the
Materials and cancel this Contract and any applicable Order or (b) at its option
in the case of Materials, require that such Materials be repaired or replaced
promptly at Seller's risk and expense (including freight charges). Acceptance of
Materials by Buyer shall be without prejudice to Buyer's right to revoke
acceptance pursuant to the Uniform Commercial Code.
41. TITLE
Software is furnished to Buyer under a nonexclusive license, and title to such
Software is not thereby transferred to Buyer.
42 RISK OF LOSS
a. If Software is lost or damaged prior to the Performance Date, or if it is
lost or damaged at any time due to the negligence or willful misconduct of
Seller or its contractors or agents, Seller shall promptly replace it at no
additional charge to Buyer.
b. Except as otherwise provided in Section a. above, if the Software is lost
or damaged at any time after the Performance Date, Seller shall promptly
replace it and Buyer shall pay only the cost of reproduction and shipment
or delivery.
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
40
Contract No. C2703F0
Amendment No. 6
Page 5 of 7
43. MODIFICATION
a. Buyer may add to, delete from or modify the Software to meet Buyer's
particular requirements. Title to any such addition or modification shall remain
in Buyer.
b. Buyer may merge the Software with other computer programs to generate a
shared program library. After Cancellation or Termination of the license for the
Software, such Software shall be removed from such shared program library and
shall be destroyed.
c. Any Software modification made by Seller at the request and expense of Buyer
shall be governed by the provisions of a separate custom software development
agreement between the parties.
44. PROGRAM PROTECTION AND SECURITY
a. Buyer shall not provide or otherwise make available the Software in any
form to any third party, except as specified in this Agreement.
b. Buyer shall take appropriate action by instruction, agreement or otherwise
with the persons permitted access to the Software to satisfy the
obligations under this Contract with respect to use, protection and
security of the Software.
c. Buyer's rights of disclosure under this Agreement shall include the right
to provide the Software or other Information of Seller to Buyer's agents
and contractors who have a need for it in connection with the performance
of services for Buyer.
45. YEAR 0000 XXXXXXXX
1. Seller warrants that all Software and Firmware, including any third party
Software, which is licensed to Buyer hereunder prior to, during, or after the
calendar year 2000, includes at no additional cost to Buyer, year 2000
capability. For the purpose of this license, year 2000 capability means that the
Software and Firmware will:
(1) Read, compute, store, process, display and print data involving dates,
including single century and multi-century formulas, and will not
cause computational, display, storage or other errors resulting from
the inability to accurately or correctly handle dates, including Year
2000 and February 29, 2000;
(2) Include the indication of century in all date-related user interface
functionality, data fields, and generated code; and
(3) Be interoperable with other software used by Buyer which may deliver
records to such Software and Firmware, receive records from such
Software and Firmware or interact with such Software and Firmware in
the course of processing dates.
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
41
Contract No. C2703F0
Amendment No. 6
Page 6 of 7
2. Buyer acknowledges that Software and Firmware Products licensed by Seller
hereunder may require modification in order to correctly process dates for Year
2000 and beyond. In addition, such modifications may be required in order for
Seller's Software and Firmware Products to function correctly with Buyer's data
and in accordance with the applicable Specifications therefor. Seller agrees to
develop and implement such required changes in its Software and Firmware
Products licensed hereunder by Buyer in accordance with a schedule to be
mutually agreed to between Seller and Buyer, but which, at a minimum, shall
provide Buyer with sufficient time to adequately test such modified Software and
Firmware prior to mandatory implementation of such modified Software and
Firmware Products. Seller agrees that there shall be no additional charges to
Buyer for such modifications or the modified Software and Firmware Products.
46. QUIET ENJOYMENT
Buyer shall be entitled during the applicable lease or license term to possess
or use any leased or licensed Products without disturbance by Seller or anyone
claiming by or through Seller, provided only that Buyer is not in material
default of its obligations under the applicable Order. Seller represents that
the applicable Order is not the subject or subordinate to any right of Seller's
creditors, or if such subordination exists, that the agreement or instrument
creating the same provides for nondisturbance of Buyer, provided only that Buyer
is not in default of its obligations under the applicable Order.
IV. NO OTHER CHANGES
In all other respects, the Contract will remain unchanged and the parties hereby
reaffirm the terms and provisions thereof.
IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment to Contract No.
C2703F0 to be executed in duplicate counterpart, each of which will be deemed to
be an original instrument, as of the date of execution.
(Signature Page Follows)
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
42
Contract No. C2703F0
Amendment No. 6
Page 7 of 7
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives.
WORLD WIDE TECHNOLOGY, "SELLER"
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Print Name: Xxxxx X. Xxxxxxx
---------------------
Title: CEO
----
Date Signed: 12-14-98
----------
SOUTHWESTERN XXXX TELEPHONE COMPANY
"BUYER"
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Print Name: Xxxxx Xxxxxxxxxx
------------------------------
Title: Supervising Contract Manager
------------------------------
Date Signed: 11-20-98
----------
RESTRICTED-PROPRIETARY INFORMATION
The information contained herein is for use by authorized employees
of the parties hereto only and is not for general distribution
within or outside their respective companies.
43
Contract No. C2703F0
Amendment No. 6
Attachment A
Page 1 of 2
* Confidential treatment will be requested
44
Contract No. C2703F0
Amendment No. 6
Attachment A
Page 2 of 2
* Confidential treatment will be requested
