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EXHIBIT 10.7
Field Trial Agreement No. 970097
FIELD TRIAL AGREEMENT
Southwestern Xxxx Telephone Company (SMIBT)
a Missouri Corporation
Xxx Xxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
and
Micro Media Solutions, Inc. (MSI) (MSI)
a Texas Corporation
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
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INDEX
PREAMBLE ................................................... 3
TERM ....................................................... 3
ASSIGNMENT ................................................. 3
BREACH OF AGREEMENT ........................................ 3
CHOICE OF LAW .............................................. 3
COMPLAINTS ................................................. 4
COMPLIANCE WITH LAWS ....................................... 4
CONFLICT OF INTEREST ....................................... 4
CURE ....................................................... 4
SWBT'S INFORMATION ......................................... 4
SWBT'S OBLIGATION .......................................... 5
EMERGENCY SUPPORT .......................................... 5
ENTIRE AGREEMENT ........................................... 6
FORCE MAJEURE .............................................. 6
INFRINGEMENT ............................................... 6
INSIGNIA ................................................... 7
INSURANCE .................................................. 7
LIABILITY .................................................. 8
LICENSES ................................................... 8
NO FIDUCIARY ............................................... 8
NO PARTNERSHIP ............................................. 9
NON-EXCLUSIVE MARKET RIGHTS ................................ 9
NON WAIVER ................................................. 9
NOTICES .................................................... 9
PERFORMANCE ................................................ 10
PUBLICITY .................................................. 10
PURCHASE OPTION ............................................ 10
RELEASES VOID .............................................. 10
RIGHT OF ACCESS ............................................ 10
SEVERABILITY ............................................... 11
SERVICES ................................................... 11
SUBCONTRACTING ............................................. 11
MSI'S INFORMATION .......................................... 11
SURVIVAL OF OBLIGATIONS .................................... 11
TAXES ...................................................... 11
TERMINATION ................................................ 12
WARRANTY ................................................... 12
WORK HEREUNDER ............................................. 12
APPENDIX A - NONDISCRIMINATION COMPLIANCE AGREEMENT
APPENDIX B - SERVICES
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PREAMBLE
SWBT and MSI agree that MSI shall act as SWBT's agent and furnish to SWBT
customers, ADSL Fulfillment services and Customer Premises Equipment
Installation and Maintenance services, hereinafter referred to as "Services",
in accordance with the terms and conditions and specifications of this field
trial agreement ("Agreement") Services are outlined in Appendix B, attached
hereto by this reference. This Agreement is formed solely to provide a means
for SWBT to evaluate the potential use of the Service in SWBT's operating area
in the form of a field trial. This Agreement in no way implies or expresses any
purchase of MSI's services or any future purchase of equipment or services
similar to service furnished by MSI, unless provided for in a separate written
agreement. In consideration of the mutual covenants and promises contained
herein, the parties agree as follows:
TERM
This Agreement shall be effective for the duration of the field trial
evaluation which shall begin on October 1, 1997 and shall continue in effect
through September 30, 1998 unless earlier terminated as provided for herein.
TERM
Neither party shall assign or otherwise transfer its rights or obligations
under this Agreement except with prior written consent of the other, said
consent not to be unreasonably withheld; provided, however, SWBT shall have the
right to assign this Agreement to any present or future affiliate, subsidiary
or parent corporation of SWBT without securing the consent of MSI and may grant
to any such assignee the same rights and privileges SWBT enjoys under this
Agreement. Any attempted assignment not assented to in the manner as prescribed
herein shall be void.
BREACH OF AGREEMENT
In the event MSI shall be in breach or default of any of the terms, conditions
or covenants of this Agreement, and said breach or default shall continue for a
period of ten (10) days after the giving of written notice to MSI, thereof,
then in addition to all other rights and remedies at law or in equity, SWBT
shall have the right to cancel this Agreement at no penalty to SWBT and/or
enforce the provisions set forth in the PERFORMANCE clause hereof.
CHOICE OF LAW
This Agreement shall be governed by the laws of the state of Missouri.
COMPLAINTS
SWBT reserves the right to notify MSI in cases where SWBT has identified
current or potential problem areas concerning MSI's SERVICE furnished
hereunder.
MSI agrees to accept and acknowledge such notices and to work with SWBT on a
reasonable resolution of such problems. Notice of the disposition and solution
of such problems shall be provided to SWST within ten (10) days of SWBT's
notification to MSI. Periodic reporting of the status of such open problems or
complaints will be furnished to SWST by MSI together with a proposed schedule
of resolution. Such resolution shall not exceed thirty (30) days.
COMPLIANCE WITH LAWS
MSI and all persons furnished by MSI shall comply with the provision of all
applicable federal, state, county and local laws, ordinances, regulations and
codes (including identification and procurement of required permits,
certificates, approvals and inspections) in MSI's performance under this
Agreement. MSI further agrees during the term of this Agreement to comply with
all applicable Executive and Federal regulations as set forth in Appendix A,
Nondiscrimination Compliance Agreement, attached hereto and made a part of this
Agreement. MSI agrees to indemnify SWBT for any loss or damage sustained
because of MSI's noncompliance.
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CONFLICT OF INTEREST
MSI represents and warrants that no officer, employee, or
agent of SWBT has been or will be employed, retained, paid a fee, or otherwise
has received or will receive any personal compensation or consideration by or
from MSI or any of MSI's officers, employees or agents in connection with the
obtaining, arranging, or negotiation of this Agreement or other documents or
Agreements entered into or executed in connection herewith.
CURE
SWBT shall not be deemed to be in default under any of the terms of this
Agreement and MSS shall not seek or be entitled to enforce any remedy for any
claimed default, unless SWBT shall fail to cure or correct said claimed default
within thirty (30) days following receipt of written notice by MSI to SWBT of
said claimed default.
SWBT'S INFORMATION
Any specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical or business information or data, field
trial results and/or reports, written, oral or otherwise (all hereinafter
designated "Information") furnished to MSI under this Agreement or in
contemplation of this Agreement, shall remain SWBT's property. All copies of
such Information in written, graphic or other tangible form shall be returned
to SWBT at SWBT's request. Unless such Information was previously known to MSI
free of any obligation to keep it confidential, or has been or is subsequently
made public by SWBT or a third party, it shall be kept confidential by MSI,
shall be used only in performing this Agreement, and may not be used for other
purposes except such terms as may be agreed upon between MSI and SWBT in
writing.
MSI understands and agrees that any and all field trial results prepared by
SWBT are and shall remain the property of SWBT and are hereby considered SWBT's
Proprietary Information. Therefore, it shall be SWBT's option, in its
sole discretion, to furnish MSI copies of such documents or to discuss such
documents with MSI. MSI's use of field trial reports furnished by SWBT shall be
governed by the provisions of the PUBLIC clause in addition to the provisions
contained in this clause, SWBT's INFORMATION.
SWBT'S OBLIGATION
MSI agrees SWBT has no obligation or liability whatsoever for expenses incurred
in the development of MSI's SERVICE or to provide MSI with results of SWBT's
field trial evaluation
EMERGENCY SUPPORT
MSI shall provide SWBT with an updated current listing of MSI's technical
support personnel together with after-hours telephone procedures to contact MSI
to correct out-of-service conditions.
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In the event SERVICE provided pursuant to this Agreement should affect SWBT's
ability to provide telecommunications services to SWBT's subscribers, MSI
shall, without charge, provide field technical personnel to make temporary
modifications and arrangements to mitigate the effects of out-of-service
conditions.
MSI agrees that expenses incurred by SWBT, if any, to mitigate or correct
out-of-service conditions caused by SERVICE shall be substantiated by SWBT and
paid by MSI.
ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the parties and
shall not be modified or amended except by a writing signed by both parties.
Estimates furnished by SWBT shall not constitute commitments. The provisions of
this Agreement shall supersede all prior oral and written quotations,
communications, agreements and understandings of the parties in respect of the
subject matter of this Agreement.
FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in performance
of any part of this Agreement to the extent that such delay or failure is
caused by fire, flood, explosion, war, strike, embargo, government requirement,
civil or military authorities, Act of God or by the public enemy, or other
causes beyond the control of MSI or SWBT. If any force majeure condition
occurs, the party delayed or unable to perform shall give immediate notice to
the other and the party affected by the other's inability to perform may elect
to;
(a) terminate this Agreement;
(b) suspend this Agreement for the duration of the force majeure condition; or
(c) resume performance under this Agreement once the force majeure condition
ceases with an option in the affected party to extend the period of this
Agreement up to the length of time the force majeure condition endured.
Unless written notice is given within thirty (30) days after such affected
party is notified of the force majeure condition, (b) shall be deemed selected.
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INFRINGEMENT
MSI shall indemnify SWBT for any loss, damage, expense (including attorney's
fees) or liability arising out of any infringement, or claim of infringement,
of any patent, trademark, copyright, trade secret or other proprietary interest
based on the manufacture, normal or intended use, installation, lease, sale or
resale of SERVICE or part thereof (including but not limited to, any program,
documentation, services and/or equipment) furnished to SWBT under this
Agreement or in contemplation of this Agreement.
If SWBT's normal or intended use, installation, lease, sale or resale of the
SERVICE shall be prevented by injunction or court order because of any such
infringement for which MSI is responsible, MSI shall, in addition to the above
indemnity, at no expense, loss or damage to SWBT: (I) replace such SERVICE
with equally suitable Service free of infringement; or (2) modify such SERVICE
See of infringement, or (3) by license or other release from claim of
infringement procure for SWBT's benefit the right to use, install, lease, sell
or resell such SERVICE, or (4) after MSI has demonstrated its good faith
efforts to achieve the foregoing without success, MSI shall refund to SWBT the
full SERVICE purchase price (less a reasonable amount of use of the SERVICE) if
any.
INSIGNIA
SWBT's Insignia will not be affixed, used or otherwise displayed on the SERVICE
furnished or in connection therewith without SWBT's written approval.
INSURANCE
With respect to performance hereunder, MSI shall maintain, at all times during
the term of this Agreement the following insurance coverage and any additional
insurance and or bonds required by law:
(1) Workers Compensation Insurance in compliance with the laws of the state in
which the work is to be performed,
(2) Employers Liability Insurance with minimum limits of S100,000 for Bodily
Injury by accident, $100,000 for Bodily Injury by disease per employee and
$500,000 for Bodily Injury by disease policy aggregate;
(3) General Liability Insurance with 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),
$1,000,000 per occurrence/aggregate for Products/Completed Operations. Coverage
must include
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Blanket Contractual, Independent Contractors Liability and Broad Form Property
Damage. If general liability is Claims-Made coverage, retroactive date must be
prior to or coincident with the inception date of the contract and shall not be
advanced during the term of the contract. SWST is to be named as Additional
Insured as respects general liability; and if use of motor vehicles is required;
(4) Automobile Liability Insurance with minimum limits of $1,000,000 per
occurrence for Bodily Injury and Property Damage. Coverage shall extend to all
owned, hired, and non-owned autos. Insurance Companies affording coverage shall
be acceptable to SWBT and have a Best's Rating of B+VII or better. MSI shall be
prepared, prior to the start of work, to furnish certificates or other adequate
proof of the foregoing insurance, if so requested by SWBT. SWBT is to be
notified in writing at least thirty (30) days prior to cancellation or any
Service change of foregoing insurance.
LIABILITY
MSI shall indemnify, defend and save harmless SWBT (including its officers,
agents and employees) from and against any and all liability, loss, damages,
costs, attorneys' fees, or other expense of any kind, which arises out of any
claim or any suit for damages, injunction or other relief, caused by, resulting
from, or in connection with, the SERVICE or acts or omissions of MSI (including
any of MSI's, agents or subcontractors but excepting the negligent acts or
omissions solely of SWST) in the furnishing of SERVICE or in the performance of
services hereunder. This indemnity shall survive the delivery, inspection or
acceptance of SERVICE or performance of services hereunder.
MSI agrees to defend SWBT, at SWBT's request, against any such liability,
claim, demand or SWBT. SWBT agrees to notify MSI within a reasonable time of
any written claims or demands against SWBT for which MSI is responsible under
this clause.
MSI agrees not to implead or bring any action against SWBT or SWBT'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 SWBT and that arises out of
SERVICE or services furnished under this Agreement.
LICENSES
No licenses, express or implied, under any patents are granted by SWBT to MSI
under this Agreement,
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NO FIDUCIARY
The parties hereto recognize and agree that this Agreement resulted from
arms-length bargaining and therefore, that the parties owe no fiduciary duty to
each other as a result of this Agreement. The parties have the right to pursue
independently other evaluation agreements outside the scope of this Agreement.
NO PARTNERSHIP
It is not the intent of the patties hereto to form a partnership, whether
express or implied, or general or limited, as a result of their entering into
this Agreement. Relations between the parties are intended to be governed by
this Agreement and Interpreted pursuant to the law of contracts, rather than
pursuant to the Missouri partnership law.
NON-EXCLUSIVE MARKETING RIGHTS
It is expressly understood and agreed that this Agreement does not grant MSI an
exclusive privilege to provide to SWBT any or all SERVICE of the type described
in this Agreement nor require the purchase of any products from MSI by SWBT. It
is, therefore, understood that SWBT may contract with other manufacturers and
MSIs for the procurement or trial of comparable Services.
NON-WAIVER
No course of dealing or failure of either party to strictly enforce any term,
right or condition of this Agreement shall be construed as a waiver of such
term, right or condition.
NOTICES
Any notice or demand which under the terms of this Agreement, or under any
statute must or may be given or made by MSI or SWBT shall be in writing and
shall be given or made by confirmed facsimile or similar communication or by
certified or registered mail addressed to the respective parties as shown:
To SWBT To MSI
Name Xxxxx Forrnhals Xxxx Xxxxxx
Address One Xxxx Center, 000 Xxxxxx
Xxxx,Xxxxx,XXX Xx. Xxxxx, XX 00000 Xxxxxx, XX 00000
Telephone (000)000-0000 (000)000-0000
Such notice or demand shall be deemed to have been given or made when sent by
confirmed facsimile or other communication or when deposited, postage prepaid
in the U.S. mail.
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The above addresses may be changed at any time by giving thirty (30) days prior
written notice as above provided.
PERFORMANCE
Consistent with the provisions of the FORCE MAJEURE clause of this Agreement,
MSI, having confirmed and agreed to a schedule or specific date(s) in the
performance of this Agreement} as outlined in the TERM clause hereof shall be
expected to meet the schedules or date(s) contained herein. Expenses incurred
by SWBT due to MSI's nonperformance of Service by committed dates, through no
fault of SWST, shall be substantiated by SWBT and paid by MSI within thirty
(30) days of written notice from SWBT.
PUBLICITY
MSI shall not advertise, or otherwise make known to others, any confidential
information regarding this Agreement. MSI further agrees not to use in any
advertising or sales promotion, press releases or other publicity matters any
endorsements, direct or indirect quotes, or pictures implying endorsement by
SBT or any of SWBT's employees without SWBT's prior written approval. MSI shall
submit to SWBT for written approval, prior to publication, all publicity
matters that mention or display SWBT's name and/or marks or contain language
from which a connection to said name and/or marks may be inferred or implied.
PURCHASE OPTION
SWBT may, at SWBT's option, elect to purchase the SERVICE from MSI at the end
of this Agreement under a separate written agreement at a price to be mutually
agreed upon by SWBT and MSI.
RELEASES VOID
Neither MSI nor SWBT shall require waivers or releases of any rights from
representatives of the other in connection with visits to MSI and SWBT's
respective premises, and no such releases or waivers shall be pleaded by MSI or
SWBT or third persons in any action or proceeding
RIGHT OF ACCESS
MSI shall normally not be permitted access to SWBT's facilities in connection
with work under this Agreement and, however, if access is granted while on
SWBT's premises, shall comply with all plant rules and regulations, and where
required by government regulations, submit satisfactory clearance from the U.S.
Department of Defense and other federal authorities concerned. No charge will
be made for such visits.
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SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceable shall not invalidate or render unenforceable
the entire Agreement, but rather the entire Agreement shall be construed as if
not containing the particular invalid or unenforceable provision or provisions,
and the rights and obligations of MSI and SWBT shall be construed and enforced
accordingly. However, in the event such provision is considered essential
element of this Agreements MSI and SWBT shall promptly negotiate a replacement
therefor.
SERVICES
Appendix B outlines MSI's responsibilities, is incorporated herein, and made a
part of this Agreement by this reference and applies to the SERVICE under this
Agreement.
SUBCONTRACTING
MSI shall not, without the prior written consent of SWBT, subcontract any
portion of the work covered by this Agreement. Subcontracting by MSI shall not
relieve M51 of any responsibilities hereunder and MSI shall remain responsible
for compliance by any subcontractor with all provisions of this Agreement.
MSI'S INFORMATION
No specifications. drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical information or data, written, oral or
otherwise, furnished by MSI to SWBT under this Agreement or in contemplation of
this Agreement shall be considered by MSI to be confidential or proprietary.
SURVIVAL OF OBLIGATIONS
MSI's obligations under this Agreement which by their nature would continue
beyond the termination, cancellation or expiration of this Agreement,
including, by way of illustration only and not limitation, those in the
PERFORMANCE, COMPLIANCE XXXX XXXX, INFRINGEMENT, LIABILITY, RELEASES VOID,
SEVERABILITY, SWBT's INFORMATION, and WARRANTY clauses shall survive
termination, cancellation or expiration of this Agreement.
TAXES
Federal manufacturer's or retailer's excise and state and
local sales or use taxes, When applicable, shall be paid by
MSI.
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TERMINATION
SWBT may terminate this Agreement without penalty in whole or in part by giving
MSI at least thirty (30) days prior written notice. Upon termination, MSI shall
return to SWBT any equipment or documents that had been provided to MST.
WARRANTY
Seller agrees to perform the SERVICES in a first-class, workmanlike manner,
with care, skill and diligence, and in accordance with applicable standards
currently recognized by Seller's profession. Seller further agrees to be
responsible for the professional quality, technical accuracy, completeness and
coordination of all reports, designs, drawings, plans, information,
specifications and other items and SERVICES furnished under this Contract. If
Seller fails to meet applicable professional standards, Seller will, without
additional compensation, correct or revise any errors or deficiencies in its
reports, drawings, specifications, designs or other items or SERVICES furnished
hereunder.
Any replacement, repair, modification, installation, or other service performed
by MSI shall be warranted as herein provided based upon the date performance of
the service is completed and accepted by SWBT.
WORK HEREUNDER
It is understood that visits by MSI or MSI's representatives for inspection,
adjustment, or other similar purposes in connection with SERVICE, shall for all
purposes be deemed "work hereunder" and shall be at no charge to SWBT unless
otherwise agreed in writing with SWBT.
In WITNESS WHEREOF, the foregoing Agreement has been executed by the parties
hereto, in duplicate this 1st day of
October, 1997.
MSI Accepted: SWBT Accepted:
Micro-Media Solutions, Inc, Southwestern Xxxx Telephone Company
By /s/ Xxxx Xxxxxx By /s/ Xxxx Xxxxx
------------------------- -------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxx
Title: President Title: Contract Manager
Date:9/24/97 Date: 9/24/97
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NONDISCRIMINATION COMPLIANCE AGREEMENT (SW-9368)
Contractor recognizes its responsibility to comply with all federal and state
laws governing performance of this contract including, but not limited to:
Executive Order 11246, Executive Order 11625,Executive Order 12138, Section 503
of the Rehabilitation Act of 1973 Is amended and the Vietnam Era Veteran's
Readjustment Assistance Act of 1974.
I. EQUAL EMPLOYMENT OPPORTUNITY DUTIES OF GOVERNMENT CONTRACTORS (APPLICABLE TO
CONTRACTS AND SUBCONTRACTS EXCEEDING $10,000)
During the performance of this contract, the contractor agrees as follows;
(1) The Contractor will not discriminate against any employee or applicant for
employment because of race color, religion, sex, or national origin. The
Contractor will take affirmative action to ensure that applicants are employed,
and that employees are treated during employment without regard to their race,
color, religion, sex, or national origin. Such action shall include, but not be
limited to the following Employment, upgrading, promotion, or transfer,
recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship. The Contractor agrees to post in conspicuous places, available
to employees and applicants for employment, notices to be provided by the
Contracting officer setting forth these provisions of this nondiscrimination
clause.
(2) The Contractor will, in all solicitations or advertisements for employees
placed by or on behalf of the Contractor, state that all qualified applicants
will receive consideration for employment without regard to race, color,
religion, sex or national origin.
(3) The Contractor will send to each labor union or representative of workers
with which he has a collective bargaining agreement or other contract or
understanding, a notice to be provided by the agency contracting officer,
advising the labor union or workers' representative of the Contractor's
commitments under section 202 of Executive Order 11246 Of September 24, 1965,
and shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
(4) The Contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the
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rules, regulations, and relevant orders of the Secretary of Labor.
(5) The Contractor will furnish all information and reports required by
Executive Order 11246 of September 24, 1965, and by the rules, and regulations,
and orders of the Secretary of Labor, or pursuant thereto, and will permit
access to his books, records, and accounts by the contracting agency and the
Secretary of Labor for purposes of investigation to ascertain compliance with
such rules, regulations, and orders
(6) In the event of the Contractor's noncompliance with the nondiscrimination
clauses of this contract or with any of such rules, regulations, or orders This
contract may be cancelled, terminated or suspended in whole or in part and the
Contractor may be declared ineligible for further Government contracts in
accordance with procedures authorized in Executive Order 1 1246 of September
24, 1965, and such other sanctions may be imposed and remedies invoked as
provided in Executive Order 11246 Of September 24, 1965, or by rule,
regulation, or order of thc Secretary of Labor, or other vise provided by law
(7) The Contractor will include the provisions of paragraphs (1) through (7) in
every subcontract or purchase order unless exempted by rules, regulations, or
order of the Secretary of Labor issued pursuant to action 204 of Executive
Order 11246 of September 24, 1965, so that such provisions will be binding upon
each subcontractor or vendor. The Contractor will take such action with respect
to any subcontract or purchase order as may be directed by the Secretary of
labor as a means of enforcing such provisions including sanctions for
noncompliance: Provided, however, that in the event the Contractor becomes
involved in, or Is threatened with, litigation with a subcontractor or vendor
as a result of such direction, the contractor may request the United States to
enter into such litigation to protect the interests of the United States
II. CERTIFICATION OF NON SEGREGATED FACILITIES (APPLICABLE TO CONTRACTS AND
SUBCONTRACTS EXCEEDING $10,000)
I the Contractor certifies that it does not and will not maintain any
facilities it provides for it's employees in a segregated manner, or permit its
employees to perform their services at any location under its control where
segregated facilities are maintained; and that it will obtain a similar
certification, prior to the award of any nonexempt subcontract
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III. EMPLOYER INFORMATION REPORT (APPLICABLE IF VALUE OF CONTRACT IS $50,000 OR
MORE AND CONTRACTOR HAS 50 OR MORE EMPLOYEES)
Contractor agrees and certifies that it will file complete and accurate report
(EEO-I) per the current instructions and file such other compliance reports as
may be required under Executive Order 11246, as amended, end rules and
regulations adopted thereunder.
IV. WRITTEN AFFIRMATIVE ACTION PROGRAM (APPLICABLE IF VALUE OF CONTRACT IS
$50,000 OR MORE AND CONTRACTOR HAS 50 OR MORE EMPLOYEES)
Contractor will develop an affirmative action compliance program for each of
its establishments as required by 41 C.F.R Part 60-1 .40 and 60 2.
V. CERTIFICATIONS OF COMPLIANCE WITH VETERAN RESPONSIBILITIES (APPLICABLE TO
CONTRACTS AND SUBCONTRACTS OF $10,000 OR MORE)
In accordance with the Vietnam Veterans Readjustment Assistance Act Or 1974 and
41 C P R Part 60250, as amended, the parties incorporate by reference the
Affirmative Action For Disabled Veterans and Veterans of the Vietnam Era"
clause and such other regulations and contract clauses required to be made part
of government contracts and subcontracts.
VI. EMPLOYMENT OF THE HANDICAPPED (APPLICABLE TO CONTRACTS AND SUBCONTRACTS OF
$2,500 OR MORE)
In accordance with the Rehabilitation Act of 1973, as amended, Executive Order
11 75S and 41 C FR, Part 60-741, the parties incorporate by reference the
Affirmative Action For Handicapped Workers clause and all other regulations and
contract clauses required to be made part of government contracts and
subcontracts.
VII. UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED BUSINESS
CONCERNS (APPLICABLE WHEN GOVERNMENT CONTRACT IS EXPECTED TO BE OVER $500,000)
(a) It is the policy of the United States that small business concerns and
small business concerns owned and controlled by socially and economically
disadvantaged individuals shall have the maximum practicable opportunity to
participate in performing contracts let by any Federal agency.
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(b) The Contractor hereby agrees to carry out this policy in the awarding of
subcontracts to the fullest extent consistent with efficient contract
performance. The Contractor further agrees to cooperate in any studies or
surveys as may be conducted by the United States Small Business Administration
or the awarding agency of the United States as may be necessary to determine
the extent of the Contractor's compliance with this clause.
(c) As used in this contract the term small business concern shall mean a small
business is defined pursuant to section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term small business
concern owned and controlled by socially and economically disadvantaged
individuals shall mean small business concern.
(1) Which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals; or in the case of any publicly owned business at
least 51 percent of the stock of which is owned by one or more socially and
economically disadvantaged individuals; and
(2) Whose management and daily business operations are controlled by one or
more of such individuals.
The Contractor shall presume that socially and economically disadvantaged
individuals include Black Americans, Hispanic Americans, Native Americans,
Asian-Pacific Americans, Asian-Indian Americans and other minorities or any
other individual found to he disadvantaged by the Administration pursuant to
section 8(a) of The Small Business Act.
(d) Contractor acting in good faith may rely on written representations by
their subcontractors regarding their status as either small business concern or
a small business concern owned and controlled by socially and economically
disadvantaged individuals.
VIII. SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS SUBCONTRACTING PLAN
(IF SUBCONTRACT OF GOVERNMENT CONTRACT EXCEEDS $500,000)
Contractor will adopt a subcontracting plan similar to the plan agreed to by
Southwestern Xxxx Telephone Company.
IX. UTILIZATION OF WOMEN OWNED SMALL BUSINESSES
Women owned small businesses as used in this clause means businesses that are
at least 5l percent owned by women who are United States citizens and who also
control and operate the business.
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Control as used in this clause means exercising the power to make policy
decisions.
Operate as used in this clause means being actively involved in the day-to-day
management of the business.
(b) It is the policy of the United States that women owned small businesses
shall have the maximum practicable opportunity to participate in performing
contracts awarded by any Federal agency.
(c) The Contractor agrees to use its best efforts to give women-owned small
businesses the maximum practicable opportunity to participate; in the
subcontracts it awards to the fullest extent consistent with the efficient
performance of its contract
Field Trial Agreement No. 970097
SERVICES
Program
Objectives: MSI will provide SWBT with high volume ADSL Fulfillment services
and Customer Premises Equipment Installation and Maintenance services.
* SWBT's objective is to achieve high customer satisfaction for deployment of
the ADSL CPE.
Teaming:
ADSL is a new network technology. Successful implementation of ADSL technology
will require strong team work among SWBT and the MSI. As such, MSI shall
provide a single contact for project management and coordination activities in
all areas of presence throughout SWBT's territories in Arkansas, Kansas,
Missouri, Oklahoma and Texas.
At a future date, SWBT may wish to provide additional products to be
implemented as part of this proposal. MSI shall promptly indicate its ability
to support future requests.
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Market Opportunity
The SWBT estimate of the potential market for ADSL CPE installation and
maintenance services is between 10,000 and 30,000 sites over the next 18 to 24
months for business and residential markets. Installation rates of between 45
and 75 installations per day, throughout SWBT's territory, are anticipated.
Geographic Territory
Initially, four wire centers in the Austin area, starting in the fourth quarter
of 1997. Long term, beginning second quarter 1998, in major metropolitan areas
throughout SWBT's five state territory.
Thirty days from execution of this Agreement, MSI shall provide information
which indicate its geographic coverage by zip-code.
Program Schedule
MSI shall have processes in place by October 1, 1997 for pre-deployment
trials. MSI to provide plan on how MSI will achieve this objective.
MSI shall be prepared to provide fulfillment, Installation and Maintenance
services of ADSL CPE to the market, in support of SWBT's ADSL roll-out,
beginning in October, 1997.
CPE
MSI to receive CPE as consigned SWBT inventory stock, stage, provide equipment
in pre-packaged installation kits to send to installers and end customers.
Installation kits are defined in Attachment 4 of this Appendix.
ADSL CPE has already been pre-selected by SWBT.
Pricing Information
Pricing is outlined in Attachment 6 of this Appendix. MSI commits to fixed
2 year fixed pricing, independent of location beginning in October, 1997 for
the following:
Fixed fee, per site, for each of the Installation options as identified:
ADSL modem and splitter (outdoor environment ready)
Inside wire
Computer installation of browser software
Installation & configuration of NIC, including software installation
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Fixed fee, per site, for each of the Maintenance options identified:
Next day parts
Next day onsite service
Same Day onsite service
Fixed fee per each requested delivery of pre-packaged installation kits to end
customers upon order request from SWBT.
Fixed fee, per unit, for delivery of each of the installation kits as
identified, with CPE ADSL modem with splitter, software, and NIC cards provided
by SWBT.
Installation
Installation Scope of Work for installing the ADSL Modern and splitter,
Network Interface Card, and wiring requirements are defined in Attachments 1,
2, and 3 respectively.
MSI will provide detail information on what their proposed wiring methodology
is for installing the wiring from the SWBT NID (Network Interface Device) to
the ADSL modem in the residence, when using existing IW (inside wiring). In
cases where existing IW is not available or Cat 5, a Cat 5 home run, Som NID to
ADSL modem location, will be provided as defined in Attachment 3 of this
Appendix.
Installation Requirements
SWBT will schedule the end customer Installation appointment dates. SWBT will
then communicate Installation and maintenance schedule to MSI.
MSI normal installation hours shall be Monday through Friday, 7:30arn to
9:30pm, CST/CDT. MSI to provide fees for work performed outside normal
installation hours.
MSI agrees to provide capabilities for supporting installations and
maintenance on Saturday. MSI agrees to confirm ability to meet installation
schedules per SWBT's commitment to customer.
MSI agrees to provide plan for making up missed appointments independent of
scheduling rates for new work.
MSI agrees to be required to install the oldest inventoried equipment first to
ensure warranty coverage is maintained.
MSI agrees to be required to maintain records on date of receipt of equipment
by serial number.
Installation Completion
MSI agrees to complete the individual customer installation project upon
successful establishment of either a bi-directional 384/256Kbps or 1.5M/3841tbps
ADSL
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ATM PVC connection to the Internet or corporate host
Installation and checkout test plan is included as Attachments 1, 2 and 3.
MSI shall ship the installation kits from fulfillment center to customers who
only want the CPE installation kits, as identified in Attachment 4 of this
Appendix, within five(5) working days of notification.
Wiring
MSI shall wire the ADSL modem to the ADSL modular termination xxxx and shall
utilize the cord supplied with the ADSL modem. (This cord will be two pair, Cat
3 wire with RJ14 terminations on both ends, not to exceed 20 feet in length.)
IW from the modular termination xxxx to the SWBT NID will be standard 24 or 26
gauge, Cat 3 wiring. Cabling to and from the PC to the ADSL Modem will be over
l0BascT CAT 3 cable.
MSI shall provide new wiring from the SWBT network termination point, at the
customers location, to the ADSL Modem as described in Attachment 3.
Maintenance
MSI will provide a toll-free call center for maintenance and repair handling
including warranty handling. "WISI shall offer next day parts, same day
onsite, next day onsite, and 2 day onsite maintenance. Hours of operation
shall be 7:30am to 9:30pm CST/CDT, five (5) days a week (Monday - Friday).
Installation and Maintenance
MSI shall supply own transportation, including vehicles, Field Service
licensed and insured drivers, and adequate liability Requirements insurance.
MSI shall immediately provide each of its own installers with PC/Mac Laptop
with integral Ethernet and/or AFTM NIC card with SWBT ADSL Project software for
testing and verifying proper operation including ADSL network testing.
MSI shall provide testing software as required by SWBT to ensure proper
operation of NIC card in PC.
MSI shall provide installers with appropriate tools, cabling, wiring,
identification required to complete installations and maintenance dispatches
on a 97% first time basis to the scheduled installation date, measured by
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dividing the number of first visit installations successfully completed on
time by the number of scheduled installations.
MSI shall submit, a plan demonstrating how MSI intends to achieve this goal
and what measurement tools are proposed to monitor status.
MSI shall supply all ancillary parts as required to support installation.
MSI shall provide all training to installers and maintenance personnel.
MSI shall provide a typical test platform at SWBT for each PC (such as
ISA,PC1) or Mac that NIC card is installed with appropriate operating system
software. (such as Windows 3. 1, 3. I 1, or later version, Windows 95, Windows
NT.)
MSI shall be responsible for its own inventory and field logistics system;
such systems must be described to SWBT, and must be adequate to support
supplier's field operation in a manner which meets service level requirements.
MSI shall have and maintain capability to communicate by phone, fax, and
e-mail.
Installation and Maintenance
MSI shall have the proven resources and financial Capabilities strength, or
demonstrate a plan to support SWBT in the deployment of the installations
territory-wide in volumes.
MSI shall indicate the volume of installations and maintenance levels that MSI
can commit to by zip code on a per-week basis.
MSI shall provide the scope of their coverage by timeline, both current and
planned.
MSI shall provide toll free end customer telephone assistance to diagnose
potential service issues and provide, at its expense, delivery, to the
customer, a unit to replace the unit that is suspect.
MSI shall indicate what its capability to support installations for
multi-language (including. but not limited to Spanish, Chinese, Tagalog,
Japanese, Vietnamese, Portuguese, etc.) and hearing impaired customers.
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Large Program Experience
MSI shall identify past experience in fulfilling programs of this scope and
magnitude.
MSI shall provide customer references for programs of similar scope and size.
Project Management
MSI shall provide a Project Manager, assigned to manage installations for
ADSL, for SWBT. he Project Manager will manage the installation processes and
work with the end customers, as well as the SWBT ADSL Customer Service Team,
to ensure successful implementations. The Project Manager shall be responsible
for collecting, maintaining, and assembling all ADSL specific documentation
which will include at a minimum:
"Deployment Plan with timeline, equipment standard templates, deployment
locations, protocols and addressing as defined by SWBT, an inventory of
equipment, including serial numbers and network installed, procedures for
service calls, and equipment configurations.
MSI will supply resumes for proposed Project Manager. SWBT reserves the right
to interview and accept or decline any proposed Project Manager.
Licenses
MSI shall be licensed for residential and business installations in SWBT's
territory. MSI shall have all required federal, state, county and city
licenses to complete the ADSL installations successfully.
MSI shall meet all building codes as required by city and counties.
MSI shall comply with all applicable laws, rules and regulations.
Customer Satisfaction
End Customer satisfaction is of key concern to SWBT. SWBT welcomes innovations
where methods to increase customer satisfaction are addressed.
MSI shall provide how MSI intends to provide a safe installation to the end
customer without risk of personal safety or risk of loss of the end customers
personal property (i.e., hiring and screening programs for new employees,
safety training, etc.).
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Tracking and Reporting
MSI shall provide a tracking and reporting format to track installation
activity by day, week, and month, showing force to load, and actual schedule
performance. Performance management reporting for volume of installations and
maintenance activities is a mandatory requirement.
MSI shall provide monthly performance reports that identify among other items,
number and trend of calls, missed installations, second installations,
equipment failure meets and customer satisfaction levels.
MSI shall provide sample reports, and the methods used to gather the data upon
which these reports are based.
MSI shall specify how each piece of serialized equipment will be tracked and
identified, and reported to SWBT for provisioning and warranty tracking
purposes
Timelines
MSI shall provide an overall program implementation timeline.
Subcontracting
MSI shall provide list of potential major sub-contractors that MSI may use to
implement this project with their qualifications.
SWBT reserves the right to decline the use of any proposed sub-contractor.
Installation Services
ADSL Modem and Splitter
MSI shall perform the following services in the installation, configuration
and testing of the ADSL modem and passive splitter. Installation shall
include; physical installation of ADSL modem, connecting to power, attaching
modem to the ADSL network, configuration of ADSL Modem, installation of
operating software, checkout of operation, and demonstration to customer of
connection
Installation crew will call the business customer the day before the
installation is to commence to remind the customer that the installation is to
take place the following day either in the morning or afternoon.
Configuration
Configuration parameters will be set at the manufacturer's recommended
defaults, or as defined by SWBT. Specific customer requirements will be
accommodated during the configuration and installation process. MSI will
confirm the use of web service to ensure ADSL connectivity with the ISP or
corporate location. Full operational testing of all the parameters of the
local software and it's inter-operation with the ADSL network may be at an
additional fee.
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Protocol Addressing
Protocol addressing for the customers PC or Mac (NIC) to allow the ADSL Modems
to communicate with the host or Internet shall be defined by SWBT and will be
provided for in the configuration of the unit. Although the ADSL modem will
support one Internet connection, the installer shall be able to support
interconnecting to one of 20 different Internet Service providers script, to be
provided by SWBT.
Other specific addressing or configuration requested (i.e. other Group Address,
SNMP, etc.) is the responsibility of customer to provide.
Physical Placing of Unit
The ADSL modem will be placed as instructed by customer and may be either wall
or desktop mounted. Typical installation is expected to be desktop mounting.
The appropriate hardware for each instance will be provided by SWBT. Cables
from unit to the 'telco' xxxx, and ADSL Modem to terminating equipment (for
example PC or Mac) will be connected. Appropriate cable lengths should be
ordered and supplied with the unit to be installed. Power outlets to be
provided by customer and shall be within 5 feet of the ADSL modem. ADSL Modem
Network Testing
Step 1, Configuration Process
1. Ensure PC and ADSL modem powers on
2. Ensure configuration is taken by PC and ADSL modem
3. Ensure ports can be seen by software and are configurable
Step 2, Test Connection to ADSL WAN Network
1. LAN and phone circuits are active and working properly
2. Network protocol is active
3. Addressing is not causing errors
4. Protocol is up
5. Review for network errors (lost packets, short frames, CRC, etc.)
Step 3, Test Other Connections
1. LAN or Serial port is active
2. Protocol is up
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3. Addressing is not causing error
Installation Complete
Installation is complete when:
1. ADSL Modem and PC is configured per manufacturer specifications or other
customer required configuration.
2. ADSL Modem and PC is connected to SWBT network.
3. ADSL Modem and PC has been tested with network service provided by
SWBT (or other carrier as appropriate and available) and connection with CO end
established.
4. ADSL Modem and PC operates as per manufacturer specifications
Installer(s) shall leave behind a customer satisfaction survey for customer to
fill out and mail to SWBT.
Installation Services Ethernet or ATM 25 Mbps IBM PC Compatible Network
Interface Card (NIC) Installation
MSI will install and configure either a lOBaseT Ethernet Network Interface Card
(N1C) or a 25 Meg ATM NIC card as a connecting product to the ADSL Network
modem. The NIC may be either ISA or PCI form factors. The installation includes
opening of the PC or Mac, inserting the NIC and adding the driver software
provided with the NIC. Configuration of the NIC software is based on a specific
PC class with specific software provided by SWBT to run on a IBM class PC
operating Windows 95 or Mac running System 7. Other optional configurations may
be defined as part of this RFP in further attachments. MSI will develop a
specific installation script on the installation process to be approved by
SWBT. Customer must have a minimum configuration as defined by SWBT to operate
with the ADSL network.
Configuration
Configuration parameters will be set at the manufacturer's recommended defaults
for software selectable interrupts and jumper settings. Specific customer
requirements shall be accommodated during the configuration and installation
process when made available to the onsite MSI technician or Project
Coordinator, as approved by SWBT, prior to installation. MSI shall load the
software in a separate directory and called up by the software command
specified by the software.
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Physical Placement of Unit
The NIC will be installed in thc desired PC where slots are available. An
appropriate cable for connecting the NIC to the ADSL modem will be supplied
with the unit to be installed. Additional cables or longer cables, if
appropriate, but not to exceed 20 feet in length, shall be provided by the
installer technician.
Connecting Device Testing
Level I Testing:
During configuration process;
1. Ensure PC and NIC powers on properly,
2. Ensure configuration is taken by device
3. Ensure NIC can be seen by software and is configurable
4. Ensure that the NIC can transfer data from the PC to the ADSL modem and
network
Installation Complete
NIC Installation is complete when:
1. NIC is configured per manufacturer specifications or ADSL specific required
configuration.
2. NIC is connected to ADSL modem.
3 NIC accepts software drivers and operates as per manufacturer specifications
to the ADSL modem.
4. PC is able to browse the desired web site successfully on the ADSL network.
Installer(s) shall leave behind a customer satisfaction Survey for customer to
fill out mail to SWBT.
Inside Wiring
Residential
MSI shall provide, at its expense, new residential wiring from the ADSL Modem
connection to the SWBT network interface device (MD) at thc residence.
The MSI shall perform the following: audit the (NAD), determine which pair is
in use for the ADSL connection, install the ADSL splitter in the NID, or other
adjacent SWBT approved enclosure, per SWBT provided instructions, ensure
conditioning on the pairs, install new telco grade Cat 3 wire (24 gauge) up to
150 feet of telephone cable to the ADSL modem, provide termination in wall for
ADSL network connection via modular termination xxxx, place ADSL modem in
properly vented location, and connect the appropriate cables to the ADSL modem
and PC or Mac.
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If wiring is performed separately than at time of installation of ADSL modem or
NIC, Installers) shall leave behind a customer satisfaction survey for customer
to fill out and mail to SWBT.
Business Wiring
Wiring for ADSL in a business environment will follow SWBT/MSI standard
business practices. Before a Proposal is proposed, MSI shall perform a walk
through for estimating costs to accurately estimate the costs of the
installation.
ADSL Installation Packs
Option 1
MSI will sent Installation Pack to customers who perform their own ADSL modem
installation ADSL Modem.
ADSL Splitter (Outdoor environment ready, with outdoor boots for wiring
connections provided if required.) (A separate splitter enclosure may also be
included.)
ISP browser software, as required.
Windows '95, Windows for Workgroups 3. 11,Windows NT 3 .51, Windows NT 4.0 or
Mac client software driver stack for the NIC being used.
ADSL RJI I or R114 modular termination xxxx.
ADSL network line interconnection cable to the modern, 6 foot length. 10BaseT
cable, 6 foot length.
'How to' instructions guide.
Modem Manual, or other manufacturer's instructions.
Misc. screws and plastic parts.
100 foot of telco interconnection cable. Box marked with PB and SWBT logo.
Option 2
MSI will send Installation Pack to customers who perform their own ADSL modem
and NIC card installation ADSL Modem.
ADSL Splitter (Outdoor environment ready, with outdoor boots for wiring
connections provided if required.) (A separate splitter enclosure may also be
included.)
Ethernet NIC with software drivers.
ISP browser software, as required.
Windows '95, Windows for Workgroups 3.11, Windows NT 3 .51, Windows NT 4.0 or
Mac client software driver stack for the NIC being used.
ADSL RJI 1 or R114 modular termination xxxx.
ADSL network line interconnection cable to the modem, 6 foot length.
1OBaseT cable, 6 foot length.
'How to' instructions guide.
Modem Manual, or other manufacturer's instructions.
Misc. screws and plastic parts.
100 foot of telco interconnection cable.
Box marked with PB and SWBT logo.
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Option 3
MSI will send Installation Pack to installers to perform the ADSL modem
installation for customers
ADSL Modem.
ADSL Splitter (Outdoor environment ready, with outdoor boots for wiring
connections provided if required.) (A separate splitter enclosure may also be
included.)
ISP browser software, as required.
Windows '95, Windows for Workgroups 3.11 ,Windows NT 3.51, Windows NT 4.0 or
Mac client software driver stack for the NIC being used.
ADSL RJ11 or RJ14 modular termination xxxx.
ADSL network line interconnection cable to the modem, 6 foot length.
10BascT cable, 6 foot length.
Modem Manual, or other manufacturer's instructions, for customer.
Option 4
MSI will sent Installation Pack to installers who perform the ADSL modem and
NIC card installation for customers
ADSL Modem.
ADSL Splitter (Outdoor environment ready, with outdoor boots for wiring
connections provided if required.) (A separate splitter enclosure may also
be included.)
Ethernet NIC with software drivers. ISP browser software, as required.
Windows '9S, Windows for 51Vorkgroups 3.1 I ,Windows NT 3 .51, Windows NT 4.0
Or Mac client software driver stack for the NIC being used.
ADSL RJ11 or RJ14 modular termination xxxx.
ADSL network line interconnection cable to the modem, 6 foot length.
10BaseT cable, 6 foot length.
Modem Manual, or other manufacturer's instructions, for customer.
FULLFILLMENT CENTER
MSI's Fulfillment Center
1. The Fulfillment Center will have all selected ADSL CPE and installation
components readily available for sale to SWBT customers (i.e. Self-installers),
within 5 business days of receipt of an order from SWBT.
2. MSI Fulfillment Center will provide weekly reports to SWBT which track the
delivery and servicing of CPE.
3. MSI Fulfillment Center will deliver CPE directly to SWBT customers or
designated installation partners within intervals determined by SWBT; currently
SWBT's expectation is that S business days would be the maximum
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delivery time anywhere in SWBT territory, and delivery volumes may eventually
be greater than 75 ADSL kits per day.
4. MSI Fulfillment Center will support all warranties, exchange policies and
discount structures offered by the manufacturer(s) defined by SWBT.
5. MSI Fulfillment Center employees will provide manufacturer instructions and
or any other provided collateral for CPE use to customers, as required.
6. MSI Fulfillment Center will provide a toll free number for customer support.
The number will be included in the CPE: packaging.
7. MSI will be required to have and/or implement a program to perform
pre-employment screening, bonding, and safety training prior to having its
employees perform services on behalf of SWBT.
Installation and Maintenance
8, MSI will have the necessary tools) equipment, and transportation to install
ADSL CPE components.
9. MSI will have a logistics system in place to efficiently receive and
distribute CPE to the installer responsible for the installation within the
intervals determined by SWBT.
10. MSI will have a process to adequately handle force to load issues and
scheduling for timely installation of CPE that customers have selected.
11. MS0's Installation and Maintenance function will support all warranties,
and exchange policies offered by the manufacturer(s) selected by SWBT.
12 MSI will provide weekly reports to SWBT which track the receiving time from
the Fulfillment center, the interval from receipt of equipment, to the time the
customer order is completed; and tracking of orders not completed on the first
visit.
13. MSI will provide customers with instructions on how to use the ADSL
service, and demonstrate to the customer that the service is in working order
before leaving the premises.
14. MSI will hand the customer a customer satisfaction survey to allow the
customer to provide feedback to SWBT concerning the quality of services
provided
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15. MSI shall provide all CPE components with backup supplies to each
installer.
16. MSI shall provide respond to CPE trouble calls within the interval period
determined by SWBT. (Currently expected to be 4 hours or less from receipt of
trouble call, based on a rolling clock. A rolling clock is defined as any
hourly increment being rounded to the next hour. i.e. a call received at 1:05
PM will be counted as received at 2:00 PM.)
17. MSI shall provide trained personnel to successfully install multiple ADSL
configurations, and to be able to handle a multitude of installation variables.
18. MSI will be required to have and/or implement a program to perform
pre-employment screening, bonding, and safety training prior to having its
employees perform services On behalf of SWBT.
19. MSI will work with SWBT to implement a process to accommodate language
dependent customers.
20. At SWBT's request, thc MSI Installation and Maintenance force will make all
necessary arrangements to accommodate hearing impaired customers. This
includes, but is not limited to, the ability to interact with a
Telecommunications Device for the
Deaf (TTY).
21. MSI is required to handle all SWBT geographic regions, by zip-code
(preferred) or by County, for the full range of installation and maintenance
services.
