Exhibit 10.8.3
***PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[***]") OR OTHERWISE INDICATED
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q
Page 1 of 8
PRODUCT ATTACHMENT
EXHIBIT Q
---------
eBUSINESS SOLUTIONS PRODUCTS
1. INCORPORATION BY REFERENCE
This Product Attachment, Exhibit Q, eBusiness Solutions Products is attached to
and made a part of the Network Products Purchase Agreement dated November 8,
2000, between ITC/\DeltaCom Communications, Inc., Interstate FiberNet, Inc.,
and Nortel Networks Inc. ("General Terms & Conditions"). The terms and
conditions provided below supplement the General Terms and Conditions only with
respect to the specific Products and eBusiness Software License set forth in
this Exhibit Q (including any future Products or eBusiness Software that may be
added to this Exhibit Q). To the extent any of the terms and conditions set
forth in this Exhibit Q conflict with any terms or conditions in the General
Terms & Conditions, the terms and conditions of this Exhibit Q take precedence
over any such conflicting terms and conditions in the General Terms &
Conditions, as such terms and conditions apply to the eBusiness Solutions
Products.
2. SCOPE AND ORDERS
A. eBusiness Software. It is understood for the purpose of this Exhibit Q the
term, Software, as defined in the General Terms & Conditions, is deemed to
include eBusiness Software. Under this Exhibit Q Buyer and/or IFN Affiliate may
license Nortel Networks' eBusiness Software, including revisions and updates and
any associated user documentation supplied by Nortel Networks (collectively,
"eBusiness Software" and "eBusiness Software Releases"), and purchase eBusiness
Software support ("Support") and associated classroom training. Subject to the
ordering process described in Section 1.B, Nortel Networks agrees to license to
Buyer and/or IFN Affiliate the eBusiness Software and provide the Support and
classroom training set forth in Schedule A-1. Support is provided in accordance
with the additional terms in Schedule B.
B. Orders. To place an order under this Exhibit Q, the parties shall agree on a
completed Schedule A (as prepared by Nortel Networks) which specifies at a
minimum the licensed eBusiness Software, the types of licenses, Support,
training, and the quantities of and fees and prices for the foregoing. Buyer
and/or IFN Affiliate shall also issue to Nortel Networks a purchase order
("Order Document") that specifies the pertinent information contained in the
Schedule A. Each Schedule A will be numbered sequentially as X-0, X-0, X-0, etc.
No Order Document and associated Schedule A will be binding upon Nortel Networks
until accepted by Nortel Networks, and Nortel Networks shall have no liability
to Buyer and/or IFN Affiliate arising from Nortel Networks' rejection thereof.
Each accepted Order Document and associated Schedule A is referred to in this
Exhibit Q as an "Order". Orders may be placed under this Exhibit Q during the
Commitment Period only.
3. FEES, TAXES AND PAYMENT; DELIVERY AND RISK OF LOSS
A. eBusiness Software License Fees and Support Prices. The license fees for
eBusiness Software and the prices for Support will be as quoted by Nortel
Networks and set forth in each Order and will be in United States ("U. S.")
dollars.
B. Taxes. eBusiness Software license fees and Support and training prices do
not include any tax, excise, value-added tax, fee, customs tax, duty or
governmental charge, however designated or imposed by a governmental
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q
Page 2 of 5
authority, and which may be levied or based on the eBusiness Software licenses
or Support or training, or the importation, delivery, use, or possession of the
eBusiness Software. All such taxes and fees in connection with each Order
(except for franchise taxes and taxes on Nortel Networks' net income) will be
for the account of Buyer and/or IFN Affiliate. Such taxes and fees will be paid
pursuant to Article 9, TAXES, of the General Terms and Conditions.
C. Delivery. Nortel Networks shall deliver one copy of each item of eBusiness
Software licensed by Buyer and/or IFN Affiliate pursuant to an Order. If elected
by Buyer and/or IFN Affiliate, the licensed eBusiness Software will be provided
to Buyer and/or IFN Affiliate by electronic transfer via File Transfer Protocol.
D. Payment. Each invoice for amounts payable under this Exhibit Q will be due
and payable pursuant to Article 7, TERMS OF PAYMENT, of the General Terms and
Conditions. Except as otherwise provided in a Statement of Work; Invoices for
licensed eBusiness Software will be issued upon shipment; Invoices for Support
will be issued annually in advance; Invoices for Services are due and payable
thirty (30) days from date of invoices; Invoices for training will be issued in
advance of such training. All payments are to be made in U. S. dollars.
E. Risk of Loss. Delivery is complete, and risk of loss or damage to the media
in which the eBusiness Software is contained will pass to Buyer an/or IFN
Affiliate, upon delivery by Nortel Networks to the carrier at Nortel Networks'
point of shipment.
4. eBUSINESS SOFTWARE AND GRANT OF LICENSE
A. Title. Buyer and/or IFN Affiliate acknowledges and agrees that title to, and
all copyrights, patents, trade secrets and/or any other intellectual property
rights in eBusiness Software are and will remain the property of Nortel Networks
and/or Nortel Networks' licensors. Buyer and/or IFN Affiliate are granted no
title or ownership rights in or to the eBusiness Software or eBusiness Software
Releases, in whole or in part. Buyer and/or IFN Affiliate acknowledge that
Nortel Networks considers the eBusiness Software to contain trade secrets of
Nortel Networks and/or its licensors. Such trade secrets include, without
limitation, the source code version of the eBusiness Software, the specific
design, structure and logic of individual eBusiness Software programs, their
interactions with other portions of eBusiness Software, both internal and
external, and the programming techniques employed therein.
X. Xxxxx of License. Subject to the terms of this Exhibit Q and the authorized
usage levels set forth in each Order, Nortel Networks grants to Buyer and/or IFN
Affiliate a personal, non-exclusive, non-transferable (except as provided in
Section 23.4 of the General Terms & Conditions) license to use and copy the
eBusiness Software for Buyer and/or IFN Affiliate's internal business purposes
until Buyer and/or IFN Affiliate permanently discontinues such use (unless the
license is earlier terminated pursuant to Article 15, REMEDIES AND LIMITATION OF
LIABILITY, of the General Terms and Conditions). Buyer and/or IFN Affiliate's
right to copy the eBusiness Software shall be limited to the number of copies of
the eBusiness Software in the form delivered reasonably necessary for execution
in accordance with the authorized usage levels or for archival purposes. All
such copies must include a reproduction of all copyright, trademark or other
proprietary notices appearing in or on the original copy of the eBusiness
Software provided by Nortel Networks. When Buyer and/or IFN Affiliate
permanently discontinues its use of the eBusiness Software, Buyer and/or IFN
Affiliate shall return to Nortel Networks or destroy the eBusiness Software and
all copies made by Buyer and/or IFN Affiliate and thereafter, such license shall
terminate.
C. Restrictions. Buyer and/or IFN Affiliate shall not (i) reverse engineer,
disassemble, reverse translate, decompile, or in any other manner decode
eBusiness Software, in order to derive the source code form or for any other
reason; (ii) make any modifications, enhancements, adaptations, or translations
to or of eBusiness Software, except for customizations that may result from
Buyer and/or IFN Affiliate interactions with the eBusiness
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q
Page 3 of 5
Software associated with normal use and explained in the associated
documentation; (iii) make any derivative works of the eBusiness Software; (iv)
make the eBusiness Software available to any third party in a service bureau
arrangement or for any similar commercial time-sharing or third-party use; or
(v) execute the eBusiness Software on a server located outside the United
States. Any customizations made by Buyer and/or IFN Affiliate will be deemed to
be eBusiness Software and subject to the terms and conditions of this Exhibit Q.
D. Licensed Servers and Users. Each eBusiness Software license is comprised of
Server Licenses and User Licenses. A "Server License" gives Buyer and/or IFN
Affiliate the right to a single Instance on a computer to support an authorized
number of Users. An "Instance" is a single occurrence of execution or
initialization of the eBusiness Software on one server. A "User License" gives
Buyer and/or IFN Affiliate the right to authorize an individual ("User") to have
access to eBusiness Software (including Nortel Networks databases) through a
single terminal workstation or personal computer, or through an interface from
an external system in an active session. A User License is either a Private
License or a Public License. A "Private License" allows use of the eBusiness
Software by Buyer and/or IFN Affiliate's employees and is granted either for a
specified number of Concurrent Users or for specified Mobile/Named Users.
"Concurrent Users" are the maximum number of simultaneous Users accessing the
eBusiness Software at the front end, regardless of whether such front end is
multiplexing. Concurrent Users are designated as either Full Universal Users,
Restricted Universal Users, or Restricted Web Users. A "Full Universal User" may
access any or all eBusiness Software applications for which a Server License fee
has been paid. A "Restricted Universal User" may access only one eBusiness
Software application as specified in an Order. A "Restricted Web User" may
access only the web support eBusiness Software application. A "Mobile/Named
User" is a named individual designated by Buyer and/or IFN Affiliate to use
specific eBusiness Software which Nortel Networks licenses on a Mobile/Named
User basis. A "Public License" allows Buyer and/or IFN Affiliate to permit its
customers to access (by means of an external interface such as the Internet) and
use the eBusiness Software on a limited basis. Buyer and/or IFN Affiliate shall
be responsible for ensuring that customer Users under a Public License use the
eBusiness Software in accordance with the license terms of this Exhibit Q and
shall indemnify and hold Nortel Networks harmless from any claim by or liability
to such customers arising out of such customers' access to and use of the
eBusiness Software. Each Order will specify the number of Server Licenses and
the number and type of User Licenses granted for the eBusiness Software licensed
under such Order. Buyer and/or IFN Affiliate may change at any time the licensed
users who are authorized to use eBusiness Software under a Named User License,
by giving Nortel Networks written notice of the names of users who will no
longer have authority and the new users who will be Named Users until further
notified in writing by Buyer or IFN Affiliate.
E. Record Keeping. Buyer and/or IFN Affiliate shall keep true and accurate
records with regard to the number of Instances, servers, and Users executing or
using each eBusiness Software license granted under this Exhibit Q. Nortel
Networks shall have the right to audit such records at any reasonable time, not
more often than once each calendar year, upon reasonable notice in writing to
Buyer and/or IFN Affiliate. If such audit reveals that Licensee is utilizing
more Instances, Servers, or Users than permitted under this Agreement, then
within thirty (30) days of the conclusion of such audit Buyer and/or IFN
Affiliate shall pay Nortel Networks any applicable additional license fees due
for the excess Instances, Servers, and/or Users.
F. Transfer Platform. Buyer and/or IFN Affiliate may request an exchange of the
licensed eBusiness Software provided under an Order for a version to be used on
a new platform ("Transfer Platform"), provided that at the time of such request
(i) Buyer and/or IFN Affiliate is obtaining Support for such eBusiness Software
and is current in paying for such Support; (ii) a version of the eBusiness
Software for such Transfer Platform is commercially available; and (iii) the
eBusiness Software used by Buyer and/or IFN Affiliate on its current platform is
at the then current revision level or the immediately preceding revision level.
Such exchange must be requested in writing and is subject to payment by Buyer
and/or IFN Affiliate to Nortel Networks of an exchange fee. Any such exchange
does not increase the number of Instances, servers or Users that may execute or
use the eBusiness Software. Buyer and/or IFN Affiliate shall de-install and
destroy the version of the eBusiness Software
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q
Page 4 of 5
licensed for the original platform at the time of the exchange and shall
discontinue any use of the version of the eBusiness Software licensed for the
original platform.
5. WARRANTIES
A. eBusiness Software Warranty. Nortel Networks warrants that eBusiness
Software, if properly installed and operated on a compatible platform provided
and adequately maintained by Buyer and/or IFN Affiliate, will function
substantially as described in its accompanying user documentation for a warranty
period of [***] ([***]) days, which begins on the date the eBusiness Software is
delivered to Buyer and/or IFN Affiliate. If any item of eBusiness Software fails
to so function during its warranty period, Buyer and/or IFN Affiliate's
exclusive remedy and Nortel Networks' sole obligation and liability under this
warranty is for Nortel Networks to provide a fix, patch or workaround for the
problem in accordance with the CustomerCare Program as outlined in the Services
Description attached hereto as Schedule B. Any such fix, patch or workaround may
be included in a future eBusiness Software Release.
B. Limitations. These warranties extend only to defects and non-conformities of
which Nortel Networks is notified during the warranty period. Nortel Networks
does not warrant that eBusiness Software or eBusiness Software Releases are
error-free or that their use will be uninterrupted. Nortel Networks is not
obligated to remedy any eBusiness Software defect, which cannot be reproduced
with the latest eBusiness Software Release. The eBusiness Software warranty does
not apply to any defects or non-conformities of the eBusiness Software resulting
from (i) installation, repairs, relocations, additions, alterations,
modifications or enhancements, except when performed by Nortel Networks or by
Buyer and/or IFN Affiliate in accordance with Nortel Networks' written
instructions; (ii) use of the eBusiness Software in conjunction with another
vendor's products resulting in the defect or non-conformance; (iii) failure to
follow applicable operation or maintenance requirements; (iv) introduction of
data, through any method other than through the eBusiness Software, into any
database accessed by the eBusiness Software; or (v) abuse, mishandling, misuse
or damage to the eBusiness Software other than by Nortel Networks. These
warranties do not cover damage to eBusiness Software due to fire, explosion,
power irregularities or surges, Acts of God, including without limitation,
earthquakes, rains, floods, or lightning, or any other cause not attributable to
Nortel Networks. THE FOREGOING WARRANTIES AND LIMITATIONS ARE EXCLUSIVE AND ARE
IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS, OR
IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, WHICH NORTEL NETWORKS EXPRESSLY DISCLAIMS.
6. PROPRIETARY RIGHTS AND INFORMATION
A. Reservation of Rights. Nortel Networks, on behalf of itself and its
licensors, reserves all proprietary rights in and to (i) all designs,
engineering details and other data pertaining to the eBusiness Software,
eBusiness Software Releases, and Support and training; (ii) all original works,
computer programs, fixes, patches, work arounds, revisions and updates (but not
programs developed by Buyer and/or IFN Affiliate), discoveries, inventions,
patents, know-how and techniques arising out of work done wholly or in part by
Nortel Networks or its contractors; and (iii) any and all products developed as
a result of such work.
B. Security. Buyer and/or IFN Affiliate in using eBusiness Software is
responsible for the security of its own proprietary and confidential information
and authorizing access to Buyer and/or IFN Affiliate's network, and for
maintaining adequate procedures apart from the eBusiness Software to reconstruct
lost or altered files, data or programs. The foregoing provision does not in any
manner limit or relieve Nortel Networks from its confidentiality and related
obligations under the Agreement, including, without limitation, those
obligations set forth in Article 17 of the General Terms and Conditions. To the
extent Nortel Networks obtains access to Buyer and/or IFN Affiliates' networks
and databases (which shall in all respects be deemed to be Buyer's and/or the
IFN
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q
Page 5 of 5
Affiliates' Confidential Information) to provide Support or other services
in connection with the e-Business Software, or for any other purpose. Nortel
Networks shall indemnify and hold Buyer and IFN Affiliates harmless from all
third party claims and all damages and liabilities associated therewith arising
out of Nortel Networks' access to or use of such networks and/or databases and
Confidential Information.
7. GENERAL
A. The following Schedules are attached to and made a part of this Exhibit Q:
Schedule A - Licensed eBusiness Software
Schedule B - Additional Support Terms and Conditions
B. In the event of the expiration or termination of this Exhibit Q, those terms
in Article 4 and Article 6 of this Exhibit Q, which by their nature are intended
to survive such expiration or termination, will so survive.
C. This Exhibit Q is effective on the date of execution by the last party to
execute it ("Effective Date").
The parties have caused this Exhibit Q to be executed by their authorized
representatives.
NORTEL NETWORKS INC. ITC/\DELTACOM, COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------------------- -------------------------------
(Signature) (Signature)
Name: Xxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxx
------------------------------- ------------------------------
(Print) (Print)
Title: RVP S.E. Region Title: V.P. Central Ops.
------------------------------ -----------------------------
Date: 5/19/01 Date: 5/4/01
------------------------------- ------------------------------
INTERSTATE FIBERNET, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
(Signature)
Name: Xxxxxxx X. Xxxx
-------------------------------
(Print)
Title: V.P. Central Ops.
------------------------------
Date: 5/4/01
-------------------------------
CONFIDENTIAL AND PROPRIETARY INFORMATION
***CONFIDENTIAL TREATMENT REQUESTED***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q, Schedule A
Page 1 of 1
Schedule A
Licensed eBusiness Software
CONFIDENTIAL AND PROPRIETARY INFORMATION
*** CONFIDENTIAL TREATMENT REQUESTED ***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q, Schedule B
Page 1 of 2
Schedule B
Additional Support Terms and Conditions
The following additional terms apply to the providing of Support:
1. Initial Support Term and Renewal. eBusiness Software Support will be for an
initial [***] ([***]) month period commencing with the start date of the
eBusiness Software warranty period ("Initial Support Term"). Upon expiration of
the Initial Support Term, Buyer and/or IFN Affiliate's Order for Support will
automatically renew for successive [***]([***]) month renewal terms unless
terminated by either party upon written notice given thirty (30) days prior to
the end of the Initial Support Term or any renewal term.
2. Support Coverage and Charges. Available Support coverage periods, which may
be ordered, are specified in Nortel Networks' then current published
CustomerCARE description for the eBusiness Software in effect at the time
Support is ordered or renewed ("CustomerCARE Description"). The annual fee for
Support is a percentage of Nortel Networks' then-current list license fees for
the covered eBusiness Software as specified in Nortel Networks' then-current
published CustomerCARE Description. Sixty days prior to each annual renewal term
for Support, Nortel Networks will notify Buyer and/or IFN Affiliate in writing
of the annual fee, which will apply during such renewal term. In the event that
Buyer and/or IFN Affiliate terminates Support, Buyer and/or IFN Affiliate may
later reinstate Support provided the eBusiness Software licensed by Buyer and/or
IFN Affiliate is upgraded to the then-current eBusiness Software Release. Unless
otherwise agreed in writing by Buyer and/or IFN Affiliate and Nortel Networks,
the fee charged for such Support reinstatement will be equal to the cumulative
standard Support charges applicable for the Support terms during which Support
lapsed, plus Support charges for the then-current Support term.
3. Scope of Support. Support consists of: (i) undertaking reasonable commercial
efforts to resolve problems or bugs in the eBusiness Software which cause the
eBusiness Software not to function substantially as described in its
accompanying user documentation, such efforts to be in accordance with Nortel
Networks' service levels defined in Nortel Networks' then-current published
CustomerCARE Description based on the impact of the problem or bug on Buyer
and/or IFN Affiliate's use of the eBusiness Software; (ii) providing new
eBusiness Software Releases which may contain bug fixes, improvements, or
enhancements (but do not include new or separate eBusiness Software or
functionality); (iii) providing Buyer and/or IFN Affiliate with access to Nortel
Networks for reporting eBusiness Software problems and tracking resolution; (iv)
answering technical questions regarding eBusiness Software functionality and
operation; and (v) providing service related bulletins. Nortel Networks shall be
under no obligation to provide Support if Nortel Networks determines that the
primary cause of a problem or bug is the failure or malfunction of any software,
tools, equipment, or facilities not provided by Nortel Networks. Support does
not cover defects or non-conformities in the eBusiness Software resulting from
any of the causes in Section 5.B of the main body of this Exhibit Q.
4. Buyer and/or IFN Affiliate's Responsibilities. Buyer and/or IFN Affiliate
shall provide at no charge to Nortel Networks a modem connection to allow Nortel
Networks remote access to Buyer and/or IFN Affiliate's server subject to Buyer
and/or IFN Affiliate's security requirements. If such security requirements are
so stringent that Nortel Networks can not gain remote access then Nortel
CONFIDENTIAL AND PROPRIETARY INFORMATION
*** CONFIDENTIAL TREATMENT REQUESTED ***
Agreement No. ITC2000NPPA
eBusiness Solutions Product Attachment
Exhibit Q, Schedule B
Page 2 of 2
Networks shall have no liabilities for failure to provide remote access support,
maintenance or enhancements. Buyer and/or IFN Affiliate shall (i) maintain the
eBusiness Software at the then-current or immediately preceding eBusiness
Software Release level; (ii) undertake reasonable remedial corrective actions as
instructed by Nortel Networks; and (iii) notify Nortel Networks in writing
within sixty (60) days of the relocation to another facility of any server on
which the eBusiness Software is operating or of any transfer of the eBusiness
Software to a new server.
5. Modification of Support. Nortel Networks reserves the right to modify the
Support terms and conditions, provided that such modifications will not
materially reduce the level of Support offered by Nortel Networks to Licensee
for the current Support Period, or increase maintenance costs to Licensee prior
to the next renewal period for Support. Additional details concerning the scope
of Support and the means of providing Support are provided in Nortel Networks'
then-current published CustomerCARE Description for the eBusiness Software,
which description is by this reference incorporated in this Schedule B.
CONFIDENTIAL AND PROPRIETARY INFORMATION
*** CONFIDENTIAL TREATMENT REQUESTED ***
